Orissa High Court
Ntpc Ltd vs State Of Odisha And Others on 25 April, 2023
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 22163 OF 2017
In the matter of an application under Articles 226 and 227
of the Constitution of India.
---------------
NTPC Ltd. ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For petitioner : M/s. B.S. Tripathy-I and
A. Tripathy, Advocates.
For opp. parties : Mr. P.K. Muduli,
Addl. Government Advocate
(O.Ps. 1 to 3)
M/s. Manoj Kumar Mohanty,
T. Pradhan, Mithilesh Mohanty
and A. Mohanty, Advocates
(O.P. 04)
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE M.S. RAMAN
Date of Hearing: 20.04.2023:: Date of Judgment: 25.04.2023
DR. B.R. SARANGI, J. National Thermal Power Corporation (NTPC)
Limited, which is a company registered under the
Companies Act, 1956 and a Government of India Enterprise
engaged in construction of super thermal power projects
and generation of electricity in the interest of national
power, has filed this writ petition seeking to quash the
order dated 28.12.2016 passed under Annexure-6, whereby
the Collector & District Magistrate, Angul, by observing that
opposite party no.4, being a major married son of Late
Dwari Behera, has been rightly included in the SAP list, has
directed that as opposite party no.4 has exercised job
option for his son, the name of the nominee of opposite
party no.4 may be sponsored to NTPC for giving
employment under the R&R Scheme applicable to him.
2. The factual matrix of the case, in brief, is that
Late Dwari Behera of village Derang was the owner of the
land measuring area of total Ac.2.37 decimal appertaining
to khata nos.287 & 288 and plot nos.9462, 9463, 9464 and
9471. The said land was acquired by the State Government
in the year 1991 for construction of Stage-II Ash Dyke of
TSTPP, pursuant to the notification dated 23.04.1990 made
under Section 4(1) of the Land Acquisition Act, 1894. Owing
to such acquisition, Late Dwari Behera was declared as SAP
No.A-307 and his other major married son Maheswar
Behera was also declared as SAP No. B-123 for the purpose
of grant of rehabilitation benefit as was prevalent then.
Apart from receiving the land acquisition compensation of
Rs.1,81,351/- on 07.05.1992, the awardee Late Dwari
Behera made a requisition in favour of his nominee son
Jagdish Behera and Maheswar Behera made a requisition
in favour of his nominee son Bibhuti Behera for giving
employment in NTPC as per R&R Scheme. Considering the
local grievance, survey was done by M/s. IMCO, an agency
during the year 1996 to finalize SAP status of the persons
whose land has been acquired for establishment of TSTPP
of NTPC Ltd. Based on the survey report, the SAP List was
finalized by the District Administration, Angul. Thereafter,
decision was taken in different RAC and RPDAC meetings
that no further addition would be made to the said finally
drawn SAP List. In the said finally drawn SAP List the name
of Prafulla Chandra Behera-opposite party no.4 was not
included as R&R benefit has already been given to the
family of Late Dwari Behera, the sole land oustee, based on
the prevalent R&R Policy and on the basis of nomination
made by the land oustees.
2.1 Opposite party No.4, claiming himself to be a
separate family of Late Dwari Behera and original land
oustee, filed a writ petition bearing W.P. (C) No.14454/2014
seeking a direction to the opposite parties to declare him as
Substantially Affected Person (SAP) / Local Displaced
Person and grant the benefit of employment to his son
(nominee) as per the R&R policy adopted by NTPC. This
Court disposed of the said writ petition on 19.02.2015
directing opposite party no.1 therein to dispose of the
representation filed by the petitioner within a period of
three months. Pursuant to such direction, opposite party
no.2-Collector & District Magistrate, Angul registered the
case of opposite party No.4 as Grievance Misc. Case
No.1/2015 and issued notice through PR dated 03.07.2015
requiring the petitioner to appear before him on 08.07.2015
at 11.00 AM along with its views for hearing of the
grievance of the present opposite party no.4. On being
noticed, the petitioner appeared before the opposite party
no.2 and furnished its views in brief.
2.2 During pendency of the Grievance Misc. Case
No.1/2015, opposite party no.2 keeping in view the views of
the petitioner, directed opposite party no.3 to cause an
inquiry and submit report. Opposite party no.3, in its turn,
caused an enquiry on the basis of the documents produced
and submitted its report on 05.09.2015 indicating that the
sole land oustee Late Dwari Behera was awarded SAP No.
A-307 and his major married son Maheswar Behera was
awarded SAP No.B-123 and based on their nomination two
persons of their family, namely, Jagdish Ch. Behera and
Bibhuti Behera were given employment in NTPC. But
opposite party no.4, Prafulla Chandra Behera, who was the
middle son of Late Dwari Behera, was not included in the
SAP List and, therefore, has not got R&R benefit from
NTPC.
2.3 The petitioner filed objection on 12.11.2015 to
the report dated 05.09.2015 before opposite party no.2 with
a prayer to reject the inquiry report of the Special Land
Acquisition Officer, NTPC, Angul and to hold an impartial
and fair enquiry by taking into consideration the rival
contentions of both the parties to ascertain additional land
holdings and pass such other order as would be deemed fit
and proper in the bona fide interest of justice.
2.4 The opposite party no.4, who is the middle son of
the original land oustee Late Dwari Behera, was an
employee and remaining outside by serving in his work
place. Therefore, he could not avail the opportunity of
inclusion of his name in the SAP List. Subsequently, he
pursued his claim to be included in SAP List. As a
consequence thereof, in compliance to the order passed by
this Court, the opposite party no.3 conducted an inquiry
and vide order dated 12.11.2015, opposite party no.2
declared opposite party no.4 as the beneficiary with SAP
No.B-123(A). The said order dated 12.11.2015 was
communicated by opposite party No.3 vide letter dated
30.11.2015.
2.5 Aggrieved by the order dated 12.11.2015 of
opposite party no.2, the petitioner filed W.P.(C) No.
4693/2016 with a prayer to quash the said order dated
12.11.2015 and to direct opposite party no.2 to cause a
fresh and fair inquiry by providing reasonable opportunity
to the petitioner to participate in the inquiry and produce
relevant documents in their support. The said WP(C)
No.4693/2016 was disposed of by this Court on 22.11.2016
by remitting the matter back to opposite party no.2 with a
direction to comply the principles of natural justice and in
case any decision had been taken in the RPDAC meeting
dated 05.04.2016 the same would also be considered and
consequential action would be taken accordingly. The said
exercise would be completed within a period of six weeks
from the date of production of the certified copy of the
order. In view of the aforementioned order dated
22.11.2016, opposite party no.2 issued notices to the
petitioner as well as opposite party no.4 on 15.12.2016
requiring to appear before him on 28.12.2016. Pursuant to
such notice, the petitioner appeared through their advocate
and opposite party no.4 as well as learned Govt. Pleader
also appeared. Upon giving due opportunity, the order
impugned dated 28.12.2016 was passed by the opposite
party no.2 holding that being a major married son of Late
Dwari Behera, name of Prafulla Chandra Behera has been
rightly included in the SAP List. As regards his being a
Government Servant, it was further observed that there is
no law or rule debarring a Government servant to avail R&R
benefit, if he is a land oustee. By so holding, the opposite
party no.2 directed that as Sri Prafulla Chandra Behera-
opposite party no.4 has exercised job option for his son, the
name of his nominee may be sponsored to NTPC, if not
already done. Hence, this writ petition.
3. Mr. B.S. Tripathy, learned counsel appearing for
the petitioner vehemently contended that the claim of
opposite party no.4 to include in SAP List, after lapse of
long years of its finalisation, which was done in 1996, is
absolutely misconceived one. It is further contended that at
the relevant point of time opposite party no.4 was a
Government servant and was not residing in the village
and, as such, he cannot be included in the SAP List. His
further contention is that as per the clarification issued by
the Govt. of Odisha, R&DM Department, vide letter no.
92388 dated 20.10.2010, the persons/families who were
ordinarily not residing in or near the project area are not
eligible for and shall not be enumerated as
displaced/affected families for the purpose of R&R benefit.
It is also contended that by the time the notification under
Section 4(1) was issued opposite party No.4 was not a
major married son. Without considering the submissions
made on behalf of the petitioner and the objection filed on
its behalf, opposite party no.2 came to a conclusion that
opposite party no.4, being a major married son of Late
Dwari Behera, has been rightly included in the SAP List,
and that there is no law or rule debarring a Government
servant to avail R&R benefit, if he is a land oustee, and that
as he has exercised job option for his son, the name of
nominee of opposite party no.4 may be sponsored to NTPC,
if not done already. According to learned counsel for the
petitioner, the opposite party no.4, after long lapse of 24
years, has raised his grievance for being included in the
SAP List, and that too upon receipt of appropriate land
acquisition compensation with R&R benefit, therefore, the
order impugned, having been passed without application of
mind, is liable to be quashed. In support of his contention,
he has relied upon a decision of the Allahabad High Court
in the case of Mohd. Aslam v. State of U.P & Ors, 2005
(2) AWC 1861, besides the decisions of the apex Court in
the cases of Union of India v. Joginder Sharma, JT 2002
(7) SC 425, State of J & K and others v. Sajad Ahmed
Mir, 2006 (5) SCC 766 and Butu Prasad Kumbhari and
others v. SAIL, JT (1995) 3 SC 428.
4. Mr. P.K. Muduli, learned Additional Government
Advocate appearing for the State-opposite parties
vehemently urged before this Court that Late Dwari Behera
was the exclusive owner of holding nos.287 and 288 of
village Dereng appertaining to plot nos. 9462, 9463 and
9471 measuring Ac.2.37 dec., which was acquired by NTPC
for construction of Ash Dyke. During the period of
acquisition, Late Dwari Behera had three major sons,
namely, Maheswar Behera, Prafulla Chandra Behera and
Jagadish Behera. As a land oustee, Late Dwari Behera was
awarded with SAP No.A-307. His major married eldest son
Maheswar Behera, who was awarded with SAP No.B-123,
nominated his son Bibhuti Behera for job as per the
provision of R&R Policy of NTPC. Late Dwari Behera, being
over aged and unfit, nominated his youngest son Jagadish
Behera as his nominee. But due to communication gap, the
agency which was entrusted with the work of survey for
enumeration of SAPs, excluded Prafulla Chandra Behera,
who was the middle son of Late Dwari Behera, as he was
serving in other department. As the land of Late Dwari
Behera had been acquired for NTPC project and as per the
R&R scheme of NTPC all awardees and beneficiaries have
availed their R&R benefit, except the middle son Prafulla
Chandra Behera- opposite party no.4, therefore, he cannot
be debarred from his legitimate claim. The date of birth of
Pradyumna Kumar Bhera, son of Prafulla Chandra Behera,
as ascertained from HSC certificate, is dated 12.6.1987.
Therefore, it cannot be said that at the time of Section 4(1)
notification dated 23.4.1990 Prafulla Chandra Behera was
unmarried.
4.1 So far as non-inclusion of the name of Prafulla
Chandra Behera in the final SAP List is concerned, it is
contended that at that time the agency, i.e., IMCO Ltd. had
finalized the SAP List by investigating the land/family
status of the land owners, but Prafulla Chandra Behera-
opposite party no.4 was debarred from his legitimate claim
of R&R benefit due to ignorance of family status of the land
owner by IMCO Ltd. As a matter of fact, the beneficiary
would have been included in the SAP List, which was done
accordingly by opposite party no.2 in compliance to the
order dated 19.02.2015 passed by this Court in W.P.(C)
No.14454/2014. By the said order, opposite party no.2 was
directed to dispose of the representation filed by opposite
party no.4 within a period of three months from the date of
communication of the order. In compliance to the said
order, Grievance Misc. Case No.1/15 was registered and
after giving due opportunities to all concerned to put forth
their views in their support, the order dated 12.11.2015
was passed.
4.2 It is further contended that aggrieved by the
order passed by opposite party no.2, the petitioner
preferred W.P. (C) No.4693 of 2016 with a prayer to quash
the order dated 12.11.2015 of the Collector, Angul and after
obtaining the subsequent order dated 22.11.2016 of this
Court, the opposite party no.2 initiated another misc. case
bearing no.1/15 and to preserve the right and to comply
the principle of natural justice, as a consequence of which,
the petitioner was given ample opportunities during hearing
on 28.12.2016. Both the parties were heard elaborately and
consequentially the order impugned was passed. Therefore,
no illegality or irregularity has been committed by the
State-opposite parties while passing the order impugned.
5. Mr. Manoj Kumar Mohanty, learned counsel
appearing for opposite party no.4 vehemently contended
that the order dated 28.12.2016 has been passed in
compliance to the direction given by this Court in W.P.(C)
No. 4693 of 2016 disposed of on 22.11.2016, by affording
opportunity of hearing to all the parties. In the order
impugned, opposite party no.2 has come to a definite
conclusion that opposite party no.4 is a major married son
of Late Dwari Behera at the time of notification issued
under Section 4(1) of the Land Acquisition Act, 1894,
therefore, he has been rightly included in the SAP List and,
as such, his son is entitled to a job under NTPC under the
provisions of R&R Scheme of NTPC. Thereby, no illegality or
irregularity has been committed by the Collector & District
Magistrate, Angul in passing the order impugned so as to
cause interference by this Court. To substantiate his
contention, reliance has been placed on the decision of this
Court in the case of Govinda Chandra Naik v. Collector,
Angul and others, 2011 (Supp.-II) OLR-267.
6. This Court heard Mr. B.S. Tripathy, learned
counsel appearing for the petitioner, Mr. P.K. Muduli,
learned Addl. Government Advocate appearing for the
State-opposite parties and Mr. Manoj Kumar Mohanty,
learned counsel appearing for opposite party no.4 in hybrid
mode and perused the records. Pleadings have been
exchanged between the parties and with the consent of
learned Counsel for the parties, the writ petition is being
disposed of finally at the stage of admission.
7. On the basis of the factual matrix, as discussed
above, there is no dispute that the land of Late Dwari
Behera was acquired by the petitioner, and that said Late
Dwari Bhera had three major sons, but, while making
inquiry, the investigating agency did not include the name
of opposite party no.4, who is the middle son of Dwari
Behera, in the SAP List, as he was employed outside. It is
also not in dispute that Talcher Super Thermal Power
Project, Kaniha (Phase-I) of NTPC had formulated
Rehabilitation and Resettlement Plan on 04.05.1991.
Clause-3 thereof, which deals with rehabilitation, is quoted
hereunder:-
"3. Rehabilitation.
The issue of rehabilitation of families to be
displaced as a result of the construction of this
project has been hanging fire since the
commencement of work. As would be explained
later, a satisfactory rehabilitation plan acceptable
to the oustee as well as to the State Government
could not be so far formulated. The displacement is
a serious human problem and its short-term and
long-term implications cannot be brushed aside.
The families who are going to lose their home and
hearth and the means of livelihood for the interest
of the nation should have some perceptible
compensatory benefits so that they do not visualize
the project as enimical to their interests. Any plan
of rehabilitation has to aim at least restoring their
existing financial and social status, if not improving
it. The State Government have been seized with the
problem of displacement in a number of irrigation,
hydel and thermal project in the State and have
substantially liberalized their rehabilitation policy
recently to remove the feeling of discontent from the
affected families. In the case of the State's own Ib
Thermal Power Station presently under
construction in Banharpalli in Sambalpur district,
the State Government has provided a package of
rehabilitation assistance which is in even more
liberal than what has been provided in the revised
rehabilitation policy. Some of the salient feature of
that package are:-
i) Houses including Ac.0.10 of homestead land
for the oustees who are losting their houses.
ii) Shifting allowances at the rate of Rs.2000/-
per family.
iii) Job for at least one member of each family
(both substantially and marginally affected
families).
iv) Treating the married sons as separate
families.
v) Training of oustees for improving their
potential for semi-skilled jobs.
vi) Provision of school, hospital, roads and
drinking water facilities in the rehabilitation
area.
vii) Allotment of shops and pindis for
rehabilitation of marginally affected
families."
8. In view of the aforementioned provision, it is
made clear that a married son is to be treated as a separate
family and job for at least one member of each family (both
substantially and marginally affected families) shall be
provided. By the time Section 4(1) notification was issued,
opposite party no.4 was the major married son and, as
such, constituted a separate family and is entitled to get
R&R benefit, being SAP, by providing job to his nominee.
The reason for non-inclusion of his name in the SAP List is
well founded because he was not available in the locality at
the time of inquiry conducted by the private investigating
agency, i.e., IMCO Ltd. That is to say, the name of opposite
party no.4 was not included in SAP List, as he was
rendering service outside the locality. Admittedly, opposite
party no.4 is the 2nd son of the original land oustee, namely,
Late Dwari Behera. Therefore, non-inclusion of his name in
the SAP List is absolutely illegal and arbitrary. When
opposite party no.4 approached this Court, vide order dated
19.02.2015 passed in W.P.(C) No. 14454 of 2014, this Court
directed for consideration of his representation. As a
consequence thereof, after conducting an inquiry, vide order
dated 12.11.2015, direction was given to extend the R&R
benefit to opposite party no.4. The said order dated
12.11.2015 was challenged by the petitioner in W.P.(C) No.
4693 of 2016, which was disposed of by this Court, vide
order dated 22.11.2016, remitting the matter back to
opposite party no.2 to comply the principle of natural
justice. It was also directed that in case the decision was
taken in RPDAC meeting dated 05.04.2016, the same shall
also be considered and consequential action shall be taken
accordingly, as because in view of the provisions contained
in Clause-3 of the R&R Plan, as quoted above, a right has
been accrued in favour of the petitioner.
9. In the proceeding of the 13th RAC Meeting of
NTPC/TSTPP, Kaniha held on 20.10.2005, which has been
placed on record as Annexure-H/4 to the counter affidavit
filed on behalf of opposite party no.4, under the heading
"consideration of genuine left out cases for inclusion in SAP
list", it was resolved as follows:-
"The reason advanced by G.M. for not considering the
genuine left out cases is devoid of any merit or
legitimacy. The R.A.C., therefore, strongly
recommended for considering the genuine left out
cases for selection as SAPS. The Collector was
advised to form a committee with his representative
and a representative of G.M., NTPC which will
examine the cases and select only genuine cases
strictly on merit."
10. In view of the aforementioned decision taken, it
was strongly recommended for considering the genuine left
out cases for selection as SAPS. In consonance of such
decision taken in the proceeding no.7 of RPDAC meeting of
NTPC/TSTPS, Kaniha held on 05.04.2016, which has been
placed on record as Annexure-A/4 to the counter affidavit
filed on behalf of opposite party no.4, at Sl. No.4 it was
indicated as follows:-
4. Rehabilitation of Nominee
new SAP, Sri Prafulla change is allowed in
Kumar Behera who was favour of Sri
added to the SAP list as Pradyumna Kumar
per the order of Hon'ble Behera. His name
High Court of Odisha. He will be sponsored to
had prayed job to his NTPC for job.
son Sri Pradyumna
Kumar Behera (B, tech).
11. But the same had undergone review. Accordingly,
in the proceeding of review meeting on R&R issues of
NTPC/TSTPS Kaniha, which has been placed on record as
Annexure-1/4 to the counter affidavit filed by the opposite
party no.4, at Sl. No.4 it was held as follows:-
4. Rehabilitation of On this issue,
01 SAP added to SAP list it was decided that
due to order of Hon'ble NTPC will implement
High Court, Odisha. the decision of 7th
RPDAC.
12. Therefore, the decision taken in the 7th RPDAC
meeting was implemented. Meaning thereby, the nominee
change being allowed in favour of Sri Pradyumna Kumar
Behera, his name was sponsored to NTPC for job. Even
though such decision was taken and his name was
recommended by the Addl. District Magistrate, Angul, vide
letter dated 27.03.2017, which is annexed as Annexure-P/4
to the counter filed by opposite party no.4, and the same
has been implemented, non-consideration of the case of
opposite party no.4 is an outcome of non-application of
mind and, as it seems, the petitioner is determined not to
extend the benefit to opposite party no.4 by giving job to his
nominee-Pradyumna Kumar Behera.
13. In the case of Mohd. Aslam (supra), the
Allahabad High Court held that, as such, employment to
those persons whose land has been acquired can be
compared with the compassionate employment in service
law and, therefore, no relief can be claimed at such a
belated stage. The ratio decided in Joginder Sharma,
Sajad Ahmed Mir and Butu Prasad Kumbhari (supra), on
which reliance was placed by the learned counsel for the
petitioner, are applicable to the facts and circumstances of
the own cases and has no application to the present case.
14. In Govinda Chandra Naik (supra), where the
displaced victim of NALCO Angul Project was under
consideration for acquisition of land, the right of occupation
guaranteed under Article 19(1)(g) of the Constitution was
taken away by the State Government while exercising its
eminent domain by acquiring the land of the petitioner in
favour of NALCO. It was held that the right of occupation of
the petitioner is interrelated to Article 21 as his livelihood
depends upon the agricultural income. Income from
agriculture is the only source of his livelihood and NALCO
having framed the scheme to provide employment to the
family members or nominee of land displaced persons, LAP
and SAP to rehabilitate, denial of same cannot be sustained.
Thereby, it was directed that the petitioner is entitled to get
relief of getting employment being LAP and SAP. The ratio
decided by this Court in the case of Govinda Chandra
Naik (supra) has application to the present context.
Needless to say, in the name of development the lands are
being acquired by depriving the livelihood of the land
owners. They are being deprived of getting their sustenance
from generation to generation. Thereby, their right to life is
being affected.
15. The apex Court in the case of National Legal
Services Authority v. Union of India, (2014) 5 SCC 438:
AIR 2014 SC 1863 observed that Article 21 is the heart and
soul of the Indian Constitution, which speaks of the rights
to life and personal liberty. Right to life is one of the basic
fundamental rights and not even the State has the authority
to violate or take away that right. Article 21 takes all those
aspects of life which go to make a person's life
meaningful. Article 21 protects the dignity of human life,
one's personal autonomy, one's right to privacy, etc. Right
to dignity has been recognized to be an essential part of the
right to life and accrues to all persons on account of being
humans.
16. In Bugdaycay v. Secretary of State, (1987) 1
All ER 940, it has been held that right to life is the most
fundamental of all human rights, and any decision affecting
human life, or which may put an individual's life at risk,
must call for the most anxious scrutiny.
17. In R (Pretty) v. DPP, (2002) 1 All ER 1, it has
been held that the sanctity of human life is probably the
most fundamental of the human social values. It is
recognized in all civilized societies and their legal system
and by the internationally recognized statements of human
rights.
18. In State of A.P. v. Challa Ramakrishna
Reddy, AIR 2000 SC 2083, it has been held that Right to
life is one of the basic human right and not even the State
has the authority to violate that right.
19. In Kehar Singh v. State of Chattisgarh, AIR
2002 Chatt 14, it has been observed that it is also the duty
of the State to create a climate where members of society
belonging to different faiths to live together and the State
has a duty to protect the life of all and if it is enable to do
so, it cannot escape the liability to pay compensation.
20. In Board of Trustees of the Port of Bombay v.
Dilipkumar Raghavendranath Nadkarni, AIR 1983 SC
109 : (1983) 1 SCC 124, it has been observed that the term
"life" used in article 21 of the Constitution of India has a
wide and far reaching concept. It means something more
than mere animal existence and the inhibition against the
deprivation of life extends to all those limits and faculties by
which life is enjoyed.
21. In Chameli Singh v. State of Uttar Pradesh,
AIR 1996 SC 1051 : (1996) 2 SCC 549, the apex Court held
that "right to life" means to live like a human being and it is
not ensured by meeting only the animal needs of man. It
includes the right to life in any civilized society implies the
right to food, water, decent environment, education, medical
care and shelter.
22. On careful analysis of the facts and
circumstances of this case in the touchstone of the ratios
decided in the plethora of decisions cited hereinbefore, this
Court does not find any merit in this writ petition, which is
accordingly dismissed. However, there shall be no order as
to costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 25th April, 2023, Arun
