Padmabati Mohapatra vs Union Of India And Others
2022 Latest Caselaw 3580 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                               WP(C) No.7924 of 2022
                               (Through Hybrid mode)

            Padmabati Mohapatra                      ....             Petitioner

                                                   Mr. G. K. Nanda, Advocate

                                        -versus-
            Union of India and others                ....       Opposite Parties
                                   Mr. A. K. Sharma, Addl. Govt. Advocate

                      CORAM: JUSTICE ARINDAM SINHA
                                       ORDER

29.07.2022 Order No.

03. 1. Mr. Nanda, learned advocate appears on behalf of

petitioner and had moved the petition on 27th June, 2022. He

had submitted, his client's daughter was killed in the violence

that included assassination of Swami Laxmanananda

Saraswati on 23rd August, 2008. He draws attention to letter

dated 3rd March, 2010 issued by Resident Commissioner,

Government of Orissa enclosing letter received from Under

Secretary, Government of India regarding disbursement of

compensation resulting in payment of Rs.3 lakhs to next of

kin of, inter alia, his client's daughter. Subsequently, by order

dated 15th December, 2008 Rs.2 lakhs was sanctioned by State

// 2 //

from Chief Minister's Relief Fund, which also was paid. He

then draws attention to judgment dated 2nd August, 2016 of

the Supreme Court in Writ Petition (Civil) no.404 of 2008

(Archbishop Raphael Cheenath S.V.D. v. State of Odisha

and others), whereby there was direction for payment of

additional compensation of Rs.3 lakhs by State, in case of

every death during the communal violence. He submits, the

Supreme Court categorized the deaths under heading

'communal violence' but it is a broad categorization, to

include the incident of assassination and killing of his

daughter, which triggered the communal violence giving rise

to the judgment. Hence, impugned order dated 23rd February,

2022 passed by the Collector, Kandhamal is required to be set

aside and quashed and direction made upon State for payment

of additional compensation as directed by the Supreme Court.

2. Mr. Sharma, learned advocate, Additional Government

Advocate appears on behalf of State. He submits, counter has

been filed. He draws attention to paragraph 2 in Archbishop

Raphael Cheenath (supra). Said paragraph is reproduced

below.

// 3 //

"The incident and circumstances that led to the unrest and communal violence were dealt with in the Report of the Investigating Team of the National Human Rights Commission (hereinafter referred to as the "NHRC"), certain portions of which for the sake of facility are reproduced hereunder:

"On 23.08.2008 at 19.55 hrs. when Swami Laxmanananda Saraswati was in his room, some armed men attacked his Jalespetta Ashram. Two of them took control of the four unarmed recruits standing outside the Ashram at gun point. The rest of them entered the Ashram and started indiscriminate firing killing Swami Laxmanananda Saraswati in the attached toilet of his room where he tried to hide himself. Mata Bhakti Mai and Kishore Baba were killed in the adjoining room. Simultaneously, some of them went into the room of the Personal Security Officer (PSO) who was not present that day and killed Swami Amrita Nand and local villager Puranjan who were lying in that room. The attackers fired about 50 rounds in fifteen minutes and ran away from the Ashram. In this regard FIR No. 37/08 u/s 147/148/149/452/302/120-B/IPC, PS- Tumdibandh was registered on the statement of the eyewitness Brahmachari Madhab Baba...................................

The violence in the present case started after the death of the Vishwa Hindu Parishad leader Swami Laxmanananda Saraswati allegedly by the Christians supported by the naxalites. The violence spread after the procession of the dead body of Swami Laxmanananda Saraswati was taken through various parts of the

// 4 //

district on a grand scale. Although the large scale violence started after his death, the cracks within the society were already existing as is evident from the data regarding clashes between these communities in the previous years (ref report of SP Kandhamal at P-911-913 of Annexure-II). This is also evident from the fact that litigations between both the communities are existing on the issue of reservation for the SC (Pano) Christians."

(emphasis supplied)

3. The facts are, the assassination of the Swami and others

and thereafter his followers taking out a procession of the

dead body gave rise to communal violence, tension between

the communities already existing on earlier clashes, as

reported by the investigating team of National Human Rights

Commission. Furthermore, State did not make any distinction

between petitioner's daughter having been killed at the

assassination, in paying out two instalments of compensation,

last of which was from the Chief Minister's Relief Fund. The

Supreme Court on appreciating the facts and including the two

payments made out to the victims in the following communal

clash, directed additional compensation to be paid to the next

of kin. Here, State is trying to draw a distinction between

// 5 //

petitioner's daughter and the victims, who were killed in the

following communal violence.

4. Court does not see any distinction between petitioner's

daughter killed at the assassination and the victims of the

subsequent communal violence. The assassination was itself

because of communal tension between the two communities.

Sanction by Court on such a distinction would imply that the

person assassinated and others killed at that time were

somehow responsible for the following communal clashes.

5. Impugned order dated 23rd February, 2022 passed by

the Collector, Kandhamal is set aside and quashed. State will

pay the additional compensation as directed by the Supreme

Court in said judgment, within four weeks of communication.

6. The writ petition is disposed of.

(Arindam Sinha) Judge

RKS