Orissa High Court

Afr vs State Of Odisha And Others on 23 February, 2023

                    ORISSA HIGH COURT: CUTTACK


                           W.P.(C) NO. 34228 OF 2020

          In the matter of an application under Article 226 of the
          Constitution of India.
                                 ---------------

AFR Manoranjan Ray ..... Petitioner

-Versus-

State of Odisha and others ..... Opp. Parties

For Petitioner : M/s S. Mishra, A. Agarwal, G.N. Parida and B. Jena, Advocates

For Opp. Parties : M/s D. Mohanty, B.P. Panda, A. Mishra and D. Behera, Advocates

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MISS JUSTICE SAVITRI RATHO

Date of hearing: 15.02.2023:: Date of judgment: 23.02.2023

DR. B.R. SARANGI, J. The petitioner, who is a land oustee, has

filed this writ petition seeking to quash the letter dated

23.01.2017 issued by the Chairman-cum-Managing

Director, MCL vide Annexure-11 and consequential letter // 2 //

dated 03/09.09.2019 issued by the General Manager,

MCL (Lingaraj Area) vide Annexure-16, by which the claim

of the petitioner with regard to employment to his son

Satya Sibrat Ray has been denied on the ground that he

is not coming under category 'C' and his name is not

enlisted in the approved list of 588 and 242 left out 'C'

category cases.

2. The factual matrix of the case, in a nutshell, is

that in the year 1988 the General Manager (T) SECL,

Talcher (now known as Mahanadi Coalfields Limited), the

opposite party herein, by letter dated 24.11.1988

submitted a proposal before the Special Land Acquisition

Officer for acquisition of tenancy land measuring an area

of Ac.278.30 dec. in village Balugaon, Tahasil-Talcher in

the district of Dhenkanal for construction of Lingaraj

Open Cast Project. The proposal for acquisition over the

extent of land includes the petitioner's land bearing khata

no.105/232, plot no.546, area Ac.0.01 dec.(Gharabari),

plot no.1381, area Ac.0.08 dec., plot no.1487/2136 area

Ac.0.08 dec. in total measuring an area of Ac.0.17 dec. in // 3 //

village Balugaon, Talcher. Accordingly, on 10.12.1991, the

Government of Odisha in Revenue and Disaster

Management Department issued a notification under

Section 4(1) read with Section 17(4) of the Land

Acquisition Act, 1894 in the locality of village Balugaon

for acquiring an area of Ac.262.80 dec. of land for the

purpose of construction of Lingaraj Open Cast Project.

The said notification was published in the official gazette

on 16.12.1991, wherein Plot No.1487/2136, area Ac.0.08

dec. along with Plot No.1381, area Ac.0.08 dec. recorded

in the name of the petitioner were found mentioned. As

per requirement of Section 6 of the Act, 1894, a

declaration was also sent to the Government in Revenue

Department and consequentially notification was issued

under Section 7 of the Act, 1894, which was published by

notification dated 28.11.1992. In the said notification, out

of total area of Ac.262.80 dec., an area of Ac.106.34 dec.

was deleted and only an area of Ac.156.46 dec. in the

village Balugaon was notified. Consequentially, notices

under Sections 9(1) and 9(3) of the L.A. Act were issued to // 4 //

the respective land owners pertaining to the land that

were declared to be acquired. Subsequently, an amount of

Rs.58,12,324/- was sanctioned towards payment and

disbursement of compensation in lieu of the lands that

were acquired by the opposite parties. In the year 1993,

another notification was floated in the official gazette by

the Revenue Department that an area of Ac.56.36 dec. is

to be acquired for construction of Lingaraj Open Cast

Project in mouza-Balugaon, Talcher in the district of

Dhenkanal. In the list of plots to be acquired, the plot of

the petitioner measuring an area Ac.0.01 dec. bearing plot

no.646 (Gharabari) was also mentioned.

2.1 On 02.06.1988, a notification was published by

the Revenue and Excise Deptt., Govt. of Odisha with

regard to the "uniform guidelines for rehabilitation of the

displaced persons/families due to S.E.C.L. Project at

Sambalpur and Dhenkanal districts. As per the said

notification, a family or persons displaced from their land

would be granted with the benefits of resettlement and // 5 //

rehabilitation basing upon the following eligibility

criteria:-

a) All the lands of the family have been acquired.

b) More than 1/3rd agricultural lands along with homestead lands has been acquired

c) Only homestead land has been acquired

d) Homesteadless person residing in the village

The scheme also envisaged that one member from each

family sustaining loss of the dwelling houses, homestead

land and agricultural land not less than 1/3rd of the total

holding shall be provided with employment on a priority

basis for the category 'a'. Further, as per the notification,

persons belonging to category 'c' who had lost only

homestead land, one member from the family shall be

provided with employment according to the availability.

The petitioner, who had lost his homestead land in the

said acquisition process, fell under the category 'c',

according to notification dated 02.06.1988. Thereby, the

petitioner claims to be rehabilitated along with

employment. The petitioner was never extended with any

compensation and/or employment in lieu of the land // 6 //

acquired by the opposite parties. But in the year 1988, a

notice was issued by the Land Acquisition Officer in the

name of the petitioner directing him to collect the

compensation amount of Rs.5761/- against L.A. Case

No.55/88 by 05.12.1998, failing which necessary action

would be initiated against him. Subsequently, another

notice was issued on 20.05.2002 directing him to receive

the compensation amount of Rs.646/- by 06.06.2002/

13.06.2002 against L.A. Case No.90/92

2.2 A list of land oustees of Balugaon village

coming under category 'C' was published on 06.11.2006

by the Land Acquisition Officer, MCL, Angul. But the

name of the petitioner was not mentioned in the said list

in spite of the fact that his only homestead land was

acquired by the opposite parties. Thereby, the petitioner

along with others, being displaced persons, approached

the Government authorities for redressal of their

grievances. Accordingly, they were assured by the

authorities that a decision would be taken to include their

names in the list. Thereafter, on 01.02.2007, Ministry of // 7 //

Coal, Govt. of India along with Govt. of Odisha held a

meeting in the 2nd floor Conference Hall of the Secretariat,

wherein a decision was taken, so far as employment is

concerned, to the following effect:-

"EMPLOYMENT: MCL is following the R&R Policy decided by the state Government in 1989 and was providing jobs to A, B and C categories up to April, 2005, after which they discontinued giving jobs to "C" category displaced persons, have been provided with job. It was decided that MCL could consider a village as a unit for the purpose of giving employment to 'C' category persons, if some people of 'C' category of a village were given jobs, the rest of the 'C' category people of the same village will also be given jobs by MCL in order to bring in a sense of equity. However, as a general principle, 'C' and 'O' category displaced persons will be given training for self-employment. MCL will examine investing in training institute to serve this purpose."

2.3. In spite of the decision taken in the minutes of

meeting, as mentioned above, the claim of the petitioner

for giving employment in exchange of acquiring his lands

was not complied with. Even though some others whose

cases are coming under the left out category have been

extended with the benefits, but the petitioner has been

discriminated. In the year 2012, on 25.06.2012, once // 8 //

again Mahanadi Coal Field circulated a list of left over

land oustees who were to be provided with employment

under category 'C'. But the name of the petitioner did not

find place therein. Thereafter, the petitioner produced

relevant documents in support of his claim over the land

and was assured by the MCL authorities to conduct a

fresh enquiry on the same. Consequentially, an enquiry

was held on 21.10.2016 by the MCL requesting the

Tahasildar to provide land particulars of the petitioner as

per the records of the Tahasil. Accordingly, the

Tahasildar, after conducting an enquiry, basing upon the

report of the Revenue Inspector, Sadar Circle, vide letter

dated 05.11.2016, replied to the MCL through letter dated

16.11.2016, confirming the status of the petitioner as a

land oustee of the village Balugaon. In spite of

confirmation received from the Tahasildar, no action was

taken by the MCL authority and, as such, the petitioner

moved from pillar to post. Ultimately, due to interference

of Petroleum Minister, it was found that the opposite

parties admitted the fact that compensation amount for // 9 //

structure over plot no.646 under khata no.105/232 of

village Balugaon, i.e., Rs.28,989/- + Rs.51,198/- and

Rs.12,685.45 sanctioned in favour of the petitioner, was

arbitrarily paid to one Radha Pradhan, from whom the

petitioner had purchased the land and got his name

registered in RoR, vide Case No.90/1992.

Consequentially, the grievance of the petitioner was

considered by the opposite parties and, finally, vide order

dated 23.01.2017, the claim of the petitioner was rejected

by assigning reasons to the following effect:-

"Kindely refer to D.O. letter No.MoS (I/C)- P&NG/2016/147 dated 26.05.2016 of Shri Dharmananda Pradhan, Hon'ble Minister of State (IC), Pretroluem & Natural Gas, Govt. of India, addressed to CMD, MCL directing to examine the above petition and comment accordingly.

The matter has been examined and is elaborated below:-

Shri Manoranjan Ray, S/o-Karnabira Ray resident of village Remuan being RT/Awardee has lost an area (House over Plot) measuring 0.040 Ac. Under Khata no. 24(P) in the village Lacchmanpur under CBA (A&D) Act,1957, and another are measuring 0.17 Ac. (AG+HS) under Khata No.84 & 105/332 in the village Balugaon under LA Act, 1894.

// 10 //

With respect to Lacchmanpur village, notification U/s.11 (1) under CBA (A&D) Act 1957 was issued on 27.06.1985. The entire village was acquired by the then Central Coalfields Limited (presently MCL) under CBA (A&D) Act 1957 vide S/O No.1155 dtd 23.03.2984. Accordingly,52 nos. of employment and 65 no. of cases of cash compensation in lieu of plot has already been provided to the land outsees of village Lacchmanpur during the year 1987 in a package deal as there was no uniform policy for providing employment to the land outsees. The uniform guidelines, i.e Odisha R & R Policy 1989 came into force only w.e.f 02.01.1989. R &R matters in respect of Lachhmanpur have been settled for all time to come. No more dues are left.

It is pertinent to mention that a compensation amount of Rs.12, 685.45 has already been sanctioned in favour on Manoranjan Ray against acquisition of land under Khata No.24 (P).

Manoranjan Ray lost only agricultural land in village Balugaon thereby coming under Category 'C' as per Odisha R & R Policy 1989. On scrutiny it was found that land under holding No.105/332 and 84 were purchased by Sri Manoranjan Ray from Radha Pradhan, W/o.Chera Pradhan 2 years 3 months 28 days prior to 4(1) notification of LA Act However, the ROR has been issued in favour of Sri Manoranjan Ray on 25.05.1991 i.e only 05 months prior to the date of 4(1) notification . On further scrutiny, it was found that Sri Ray was not a resident of village Balugaob as revealed from the voter list of village Balugaon // 11 //

for the year 1994. Also it is seen that, compensation had already been paid to Radha Pradhan against plot No. 546 under holding No. 105/332 (which was later purchased by Manroanjan Ray) and job rehabilitation was provided to her nephew Sri Bhabagrahi Pradhan against land acquired vide holding No.84,24 & 25.

As per clarification received vide No.42388 dtd 20.10.2010 of Commissioner - Cum-Secretary to Govt. of Odisha ,Sri Manoranjan Ray cannot be enumerated as displaced or affected person for the purpose of R & R benefit since he was not residing in the project area 03 years prior to date of publication of 4(1) notification under LA Act Moreover , he is coming under Category 'C' land oustee and his case was not enlisted in the 588 & 242 left out 'C' category cases for job rehabilitation in MCL as because Sri Manoranjan Ray has not yet received compensation and has purchased the concerned land within three years of 4 (1) notification being resident of other village beyond acquired area. Now 'C' category cases are not considered for employment after april 2005 as per understanding between Chief Secretary, Govt. of Odisha and MoC , Govt of India. At present employment is only considered for priority category 'A' 'B' by MCL under 1989 Odisha R &R policy in vogue."

2.4 As a consequence thereof, the General

Manager, Lingaraj Area, MCL issued letter to the Special // 12 //

Land Acquisition Officer, Angul vide letter dated

03/09.09.2019 under Annexure-16 to the following effect:

"With reference to the subject cited above, it is to mention here that earlier a grievance petition of Sri Manoranjan Ray was received from ministry of coal and accordingly a letter was already written to ministry of coal from CMD MCL vide no.7716 dtd 23.01.2017 regarding non eligibility of the case with sufficient reason and the matter was disposed off.

Further the grievance petition received earlier from Spl.LAO, Angul vide no.1103 dated 02.06.18 regarding claim of employment was send to L & R department ,MCL, HQ for verification and scrutiny to access the eligibility under 1989 R & R policy.

The case was scrutinized on dated 11.02.2019 by the committee constituted for this purpose by the D (P), MCL and the observation of the committee is as follows. Quote:

Manoranjan Ray S/o Karnabira Ray is not eligible for employment as he is coming in category "C" and his name is not enlisted in the approved list of 588/242 left out Category "C" cases.

In view of the observation mentioned above by MCL, HQ the matter was communicated to Sri Manoranjan Roy vide letter no 157 of GM(LA) dated 28.06.19 regarding the not eligibility for employment as per 1989 R & R policy applicable to village Balugaon."

// 13 //

Aggrieved by such denial of benefits of rehabilitation

appointment, the petitioner has approached this Court by

filling the present writ petition.

3. Mr. S. Mishra, learned counsel appearing for

the petitioner contended that even though initially

controversy arose with regard to acquisition of petitioner's

land, but subsequently it was proved that by notification

the building and structure of the petitioner was acquired

by the opposite parties. Therefore, the petitioner being a

land oustee, one of his legal representatives is entitled to

get rehabilitation appointment. It is contended that

though the land of the petitioner had been acquired and

compensation thereof was determined, but, instead of

awarding to the petitioner, the same was paid to one

Radha Pradhan and Jaya Pradhan vide L.A. Case

No.90/92.

3.1 It is further contended that the grievance of the

petitioner is founded on the basis of the letter dated

15.09.2017 under Annexure-13 issued at the ministerial // 14 //

level wherein it was mentioned that job opportunity

should be provided to the son of the petitioner Satya

Sibrat Ray on humanitarian ground. Although the

petitioner was granted with a land oustee certificate by

the Special Land Acquisition Officer, MCL, Angul of L.A.

(MCL) Section, District Office, Angul, neither any

compensation for the said displacement was granted to

him nor was he given job opportunities in the opposite

party-corporation as per the guidelines framed according

to the R&R Policy. The claim of the petitioner further

fortifies from letter dated 02.06.2018 addressed to the

General Manager, MCL, Talcher by the Special Land

Acquisition Officer, MCL, Angul wherein it was specifically

mentioned that the petitioner has lost his agricultural,

homestead and dwelling house and hence he comes

under Category 'A' land outsee, but he has not been

granted any R&R benefits against such acquired land.

3.2 It is further contended that the petitioner had

received a letter dated 03/09.09.2019 from the opposite

party-authority wherein it was stated that case of the // 15 //

petitioner was scrutinized on 11.02.2019 by the

constituted committee and it was observed that the

petitioner is not eligible for employment as he is coming

under category 'C' and his name is not enlisted in the

approved list of 588/242 left out category 'C' cases. Such

categorization of the petitioner as left out category 'C'

disentitling him to get employment opportunity cannot be

sustained in the eye of law and, as such, the letter dated

03/09.09.2019 cannot be sustained in the eye of law and

is liable to be quashed, on the face of the letter dated

02.06.2018 issued by the Special Land Acquisition

Officer, MCL., Angul in the office of the Collector &

District Masgistraste, Angul under Annexure-15

classifying the petitioner under category 'A' of the R&R

Policy. It is further contended that the case of the

petitioner is squarely covered by the order dated

27.07.2015 passed by this Court in W.P.(C) No. 19031 of

2013, apart from the decision taken in the second RPDAC

meeting held on 22.06.2007 at Angul, wherein it was

decided by the MCL to provide employment to 'C' category // 16 //

oustees/land losers in phased manner within a stipulated

time. Thereby, it is contended that the opposite parties,

having acquired the land of the petitioner under the R&R

Policy and not providing him employment opportunities

as per the said policy, have acted arbitrarily and illegally.

As such, the petitioner seeks for interference of this Court

and quashing of the letters which deprived him of getting

the benefits as due and admissible to him.

3.3 To substantiate his contentions, learned

counsel appearing for the petitioner has relied upon the

judgments of this Court in the case of Basanta Kumar

Sahoo v. State of Odisha, 2018 (II) ILR CUT 200; New

Born and Pediatric Health Centre v. Cuttack

Development Authority, (W.P.(C) No. 6341 of 2020

disposed of on 26.04.2022); and Bimal Chandra

Pradhan v. Mahanadi Coal Fields Ltd., (W.P.(C) No.

15543 of 2010 disposed of on 14.07.2015).

4. Per contra, Mr. D. Mohanty, learned counsel

appearing for the opposite party-MCL contended that // 17 //

prior to 02.06.1988, no specific R&R Policy was in

existence for acquisition of land. The Government of

Odisha in Revenue and Excise Department, vide S.O.

No.35318/R dated 02.06.1988, framed the policy/

uniform guidelines for rehabilitation of the displaced

persons of the families due to SECL Projects (now MCL) in

Sambalpur and Dhenkanal districts wherein the eligibility

for rehabilitation benefits has been categorized as 'A', 'B',

'C', 'D'., and in the said policy it is provided that

employment facility will be given as per the entitlement.

As the petitioner is coming under category 'C' land

oustee, but on scrutiny it was found that the land

pertaining to khata no. 105/232 & 84 of village Balugaon

was purchased by the petitioner from Radha Pradhan

prior to two years three months 28 days of the issuance

of Sec.4(1) notification under the Act, 1894 and, as such,

the above land was mutated in the name of the petitioner

on 25.05.1991, which is five months prior to the said

Sec.4(1) notification. It is further contended that plot

no.546 with kisam Gharabari pertaining to khata // 18 //

no.105/232 measuring area Ac.0.01 dec. though had

been purchased by the petitioner but practically a

structure was standing over the plot which belonged to

Radha Pradhan and they were staying in that house.

Therefore, compensation against the structure was paid

to Radha Pradhan and the compensation against the land

was awarded against the petitioner and due to his refusal

to receive the same, the compensation amount has been

deposited with the State Authority as per the Act, 1894.

4.1 It is further contended that from the voter list

of village Balugaon, it would seen that the name of the

petitioner does not exist in the year 1994, i.e., in the year

in which Sec.4(1) notification was published. This

corroborates the fact that the petitioner is not a resident

of village Balugaon as on date of Sec.4(1) notification.

Therefore, he is not a displaced/affected person. As per

clarification dated 20.10.2010 of the Govt. of Odisha, it

was clarified that the persons or families who were

ordinarily not residing in or near the project are not

eligible and shall not be enumerated as displaced or // 19 //

affected families for the purpose of R&R benefits. Persons

or families who are normally residing in or near the

project area for a period of at least three years prior to the

Sec.4(1) notification may be considered for the R&R

benefits. Therefore, the petitioner is not entitled to get the

relief as claimed in the writ petition. Consequentially, he

seeks for dismissal of the writ petition.

5. This Court heard Mr. S. Mishra, learned

counsel appearing for the petitioner and Mr. D. Mohanty,

learned counsel appearing for the opposite party-MCL in

hybrid mode. 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.

6. On careful appraisal of the factual matrix, as

discussed above, it is emerged that the land in question

pertaining to holding no.105/232 in village Balugaon

measuring Ac.0.01 dec. and holding no.84 measuring

Ac.0.16 dec. originally belonged to Radha Pradhan. The // 20 //

said lands were purchased by the petitioner from Radhan

Pradhan through registered sale deed on 25.05.1991. On

10.12.1991, the Government of Odisha in Revenue and

Disaster Management Department issued a notification

under Sec. 4(1) read with Sec. 17(4) of the Act, 1894 for

acquisition of land in village Balugaon as per the schedule

mentioned therein and the same was published in the

official gazette on 16.12.1991. Out of the total area of

Ac.262.80 dec. intended to be acquired for the purpose of

construction of Lingaraj Open Cast Project, which

included the land of the petitioner situated in village

Balugaon, subsequently an area measuring Ac.106.34

dec. were deleted, as a result of which the land of the

petitioner bearing plot no.546 under holding no.105/232

was removed from the process of acquisition. However,

subsequently, the Revenue and Disaster Management

Department once again notified under Sec. 4(1) of the Act,

1894 for acquisition of an area of Ac.56.36 dec. in village

Balugaon, which included the land of the petitioner, i.e.

plot no.546 holding no.105/232 measuring an area // 21 //

Ac.0.01 dec.. Accordingly, the petitioner was granted with

land oustee certificate in respect of his land in award

no.304 in L.A. Case No.90/90 and in award no.111 in

L.A. Case No.55/88 respectively. Thereafter, he was called

upon to collect his compensation amount to the tune of

Rs.5761/- against L.A. Case No.55/88 by 05.12.1998

involving holding no.84 and subsequently vide another

notice dated 20.05.2002 he was called upon to receive

compensation of Rs.646/- by 06.06.2002/13.06.2002

against L.A. Case No.90/92 involving land and holding

no.105/232. But the petitioner was never extended with

rehabilitation benefits qua employment in lieu of such

acquisition of his land in terms of uniform guidelines for

rehabilitation of displaced persons/families due to SECL

projects at Sambalpur and Dhenkanal districts dated

02.06.1988. The petitioner is coming under category 'C',

as per the uniform guidelines and, as such, since the

petitioner has not been rehabilitated in lieu of being

physically displaced from his homestead land vide holding

no.105/232, he ought to have been extended with // 22 //

employment. Due to non-grant of employment in favour of

category 'C' displaced persons, there was a RPDAC

meeting held on 22.05.2007 where a thorough discussion

was initiated by the Chairman on the said issue and MCL

authorities were asked to make a commitment to provide

job to the balance left out 'C' category claimants in order

to avert the deteriorating law and order situation.

Pursuant to the decision taken in the RPDAC, a list of left

out 'C' category land oustees was prepared by the MCL

vide order dated 25.06.2012, where the name of the

petitioner was not found place. Consequentially, the

petitioner made a representation highlighting his

grievance, but the same was rejected vide letter dated

23.01.2017 by the MCL on the ground that the petitioner,

having purchased the land in question five months prior

to the date of notification under Sec. 4(1) of the Act, 1894,

is not eligible to be considered as a displaced or affected

person for the purposes of being extended with

rehabilitation benefits. The petitioner had also made a

representation to the Collector and District Magistrate, // 23 //

Angul praying for grant of rehabilitation benefits and in

response to the same, the Special Land Acquisition

Officer, Angul wrote a letter on 22.11.2017 to the General

Manager, Lingaraj Open Cast Area that the petitioner

having lost the land in terms of the schedule of lands

appended thereto, MCL is to consider his request for the

purpose of providing him with rehabilitation benefits in

lieu of acquisition of the said lands. Even though the

request letter dated 22.11.2017 was not looked into by

the MCL, the Special Land Acquisition Officer wrote

another letter on 02.06.2018 requesting the MCL to

consider the grievance of the petitioner. But the General

Manager on 03.09.2019 wrote a letter to the Special Land

Acquisition Officer, Angul stating inter alia that a decision

to reject the grievance of the petitioner was already made

on 23.01.2017 owing to non-eligibility of the case with

sufficient reason and, as such, the case of the petitioner

has already been looked into by the Committee

constituted under L&R Department MCL, HQ pursuant to

the letter dated 02.06.2018 and the case of the petitioner // 24 //

was rejected due to non-inclusion of his name in the list

prepared by the authority. Non-inclusion of the name of

the petitioner in the left out category of the land oustees is

within the complete domain of the authority but it is the

admitted case of the petitioner that he has been extended

with the payment of compensation which is with the

Government. But he has not been extended with

rehabilitated benefit qua employment though he is coming

under category 'C' land oustee and is granted with land

oustee certificate in respect of his land acquired by the

authority. Non-consideration of the case of the petitioner

amounts to discrimination at the instance of the MCL, as

similarly situated land oustees of 'C' category have already

been extended with the benefits of employment as per

clause-4 of the uniform guidelines. Thereby, it amounts to

arbitrary exercise of power by the authority and violates

Art.14 of the Constitution of India.

7. In view of eligibility criteria mentioned in

clause-2 and clause-4 of the uniform guidelines, as the

petitioner's family has lost its homestead land, at least // 25 //

one member of its family shall be provided with

employment according to sub-clause-(c) of clause-4. The

word 'shall' though ordinarily imports as an obligatory

inasmuch as considering the purport of the

guidelines/scheme, the use of word 'shall' puts a mandate

to provide employment to the families of displaced

persons according to the availability.

8. The Government of Odisha in Revenue and

Excise Department, on 02.01.1989, issued a uniform

guideline for rehabilitation of displaced persons/families

due to SECL Project at Sambalpur and Dhenkanal

districts. For just and proper adjudication of the case,

clauses-2 and 4 are quoted below:

"2. A family/person shall be eligible for rehabilitation benefit if:

a) All the lands of the family have been acquired

b) More than 1/3rd agricultural lands along with homestead land has been acquired.

c) Only homestead land has been acquired

d) Homesteadless persons residing in the village // 26 //

This is to be ascertained through joint enquiry by a committee consisting of representatives of the South Eastern Coal Fields Ltd. and the Government (Collector of the District.)"

4. Employment:

a) One member from the family sustaining loss of dwelling houses, homestead land and agricultural lands not less than 1/3rd of the total holding shall be provided with employment on a priority basis.

b) One member of each family having sustained loss of 3 acres of non-irrigated land or 2 acres of irrigated land shall be provided with employment on second priority.

c) In case of families having lost only homestead land or the total agricultural holding, one member from each family shall be provided with employment according to availability.

d) In case of families who have lost 1/3rd of the total agricultural holding, one member from each family shall be provided with employment according to availability.

e) Rehabilitation of other displaced families shall be made through self employment schemes."

9. In Hiralal Agrawal v. Rampadarth Singh,

1969 SC 244, the apex Court held that the question

whether a particular provision of a statute is mandatory

inasmuch as it uses the word "shall" or is merely directory

cannot be resolved by laying down any general rule but // 27 //

depends upon the facts of each case. The purpose and the

object of the statute in making the provision is the

determining factor.

10. In Sainik Motor v. State of Rajasthan, AIR

1961 SC 1480, the apex Court held that when a statute

uses the word "shall", prima facie it is mandatory but it is

sometime not so interpreted if the context or the

intention otherwise demands.

11. In State Inspector of Police v. Surya

Sankaram Karri, (2006) 7 SCC 172, while considering

the provisions contained under Section 17 of the

Prevention of Corruption Act, 1988, the apex Court held

that the expression "shall" in proviso to Section 17 of the

Act makes the provision mandatory.

12. In Hemalatha Garva v. C.I.T., (2003) 9 SCC

510, the apex Court held that use of word "shall" in a

statute, ordinarily means that the statutory provision is

mandatory.

// 28 //

13. In Biswanath Poddar v. Archana Poddar,

(2001) 8 SCC 187, while considering the provisions under

Section 16(1) and Rule-4 of the West Bengal Premises

Tenancy Act, 1956, the apex Court held that use of word

"shall" in Section 16 of the Act and Rules indicates that

the legislature intended the requirement of notice under

Section 16 of the Act to be mandatory.

14. In the judgment rendered in the case of Bimal

Chandra Pradhan (supra), in which one of us (Dr. B.R.

Sarangi, J.) was a Member, this Court in paragraphs-8,

9,10 and 11 held as follows:-

"8. On perusal of the above mentioned pleadings it is made clear that the petitioners' case has been ignored by the authorities. While providing four employment to the nominees of two joint owners of the land namely, Iswar Pradhan and Jeevan Pradhan, they have refused to provide such employment to the nominees of two other joint owners namely, Deba Pradhan (father of the petitioners) and Laxmidhar Pradhan. This clearly indicates the arbitrary and unreasonable exercise of powers by the authorities in giving employment to four persons of two joint owners and not giving employment to other joint co-owners is absolutely a discriminatory one. Therefore, the action of the authorities in providing employment on the plea that there was no vacancy in Category 'D' cannot sustain in the eye of law. The Special Land // 29 //

Acquisition Officer-opposite party no.4 in his counter affidavit has categorically indicated the eligibility of the petitioners to get employment under the Rehabilitation and Resettlement Scheme evolved by the State Government in Annexure-A/4.

As such, Sub-Clause-(d) of Clause-4 of the Scheme puts a mandate that in case of families who have lost 1/3rd of the total agricultural holding, one member from each family shall be provided with employment according to availability. The use of word 'shall' in its ordinary import is obligatory. Inasmuch as considering the purport of the Scheme the use of word 'shall' puts a mandate to provide employment to the families of the displaced persons according to availability.

9. In Land Acquisition Officer V. Karigowola, (2010) 5 SCC 708, the word 'shall' in section 23(1) of the Act came up for consideration where the apex Court held that it would have to be construed as mandatory and not directory.

10. In Pesara Pushpamala Reddy v. G. Veera Swamy, (2011) 4 SCC 306 referring to the principles of statutory interpretation 12th Edn., 2010, pp. 406-07 (by Justice G.P. Singh), the apex Court has held as follows :

"the use of the word 'shall' raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other consideration such as object and scope of the enactment and the consequences flowing from such construction."

11. Therefore, taking into consideration the above mentioned interpretation of the word 'shall' as used in the present context though ordinarily it imports as a obligatory one, but in essence providing employment to one of the families for loss of 1/3rd of the total agricultural holdings, puts a mandate to provide employment to one of its member from each family according to the availability. Thus, denial of // 30 //

benefit on the ground that there is no availability of vacancy cannot sustain in the eye of law. In view of the fact that as per the pleadings available on record if four persons sponsored by two joint owners have been provided employment, the petitioners could not have been denied such employment being the two other co-joint owners of the land oustees."

Therefore, taking into consideration the aforementioned

judgment of this Court, it is made clear that the word

'shall' used in clause-4 of the guidelines and taking into

consideration its purport, puts a mandate to provide

employment to the family of the displaced persons

according to the availability.

15. The petitioner's eligibility to be extended with

rehabilitation benefit qua employment should not have

been rejected having regard to the clarification dated

20.10.2010 issued by the Commissioner-cum-Secretary to

the Government in Revenue and Disaster Management

Department, as the said clarification applies to the R&R

benefits under 2007 policy. But the petitioner's case is to

be considered in terms of the uniform guidelines for

rehabilitation of displaced persons/family due to SECL // 31 //

Project at Sambalpur and Dhenkanal districts dated

02.06.1988 and thereafter the uniform guidelines for

rehabilitation of displaced persons due to SECL project at

Sambalpur and Dhenkanal districts which had been

issued on 02.01.1989, which makes an ample provision

for giving benefit to the land oustees, that in case of

family having lost the only homestead land or the total

agricultural holding, one member from each family shall

be provided with employment according to availability.

The said clarification dated 20.10.2010 may have

prospective application, but, as the petitioner's land was

acquired prior to commencement of such clarification, the

same is not applicable to the petitioner.

16. Much reliance was placed on the clarification of

uniform guidelines of rehabilitation of persons displaced

due to acquisition of land for SECL Project that was

issued on 30.01.1992. But the same is also not applicable

to the case of the petitioner because a right had already

been accrued in favour of the petitioner pursuant to the

uniform guidelines dated 02.06.1988 and 02.01.1989 // 32 //

respectively. Once a right has already been accrued, that

cannot be divested by assigning subsequent clarification,

which has got prospective application. Consequentially,

the petitioner is entitled to get the benefits in terms of the

uniform guidelines dated 02.06.1988 and 02.01.1989.

More so, the petitioner is a land oustee for which he has

been granted with land oustee certificate and

compensation has been paid, which has been kept in

deposit with the State authorities in a separate account.

Therefore, due to laches on the part of the opposite

parties for non-inclusion of the name of the petitioner in

the left out list prepared for category 'C' land oustee, he

cannot be deprived of getting his legitimate claim as due

and admissible to him.

17. The reasons assigned in the counter affidavit

justifying the action of the authorities, being not formed

part of the record, cannot be sustained in the eye of law.

18. In Mohinder Singh Gill v. The Chief Election

Commissioner, New Delhi, AIR 1978 SC 851, which has // 33 //

been followed by this Court in New Born and Pediatric

Health Centre and Bimal Chandra Pradhan (supra), the

apex Court held that:

"When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out."

19. In Commissioner of Police, Bombay v.

Gordhandas Bhanji, AIR 1952 SC 16, the apex Court

held as follows:-

"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older."

// 34 //

A similar view has also been taken by the apex Court in

Bhikhubhai Vithlabhai Patel v. State of Gujarat,

(2008) 4 SCC 144. Thereby, the opposite parties cannot

justify their action by assigning reasons in the counter

affidavit, in absence of any reason placed on record in its

proper perspective.

20. In view of the facts and law, as discussed

above, it is made clear that the clarification dated

30.01.1992 on uniform guidelines for rehabilitation of

persons displaced due to acquisition of land for SECL

project annexed as Annexure-P/3 to the additional

affidavit filed by the opposite party-MCL improving the

reasons in the orders impugned by rejecting the case of

the petitioner for giving rehabilitation benefit, being

arbitrary exercise of power of the authority, cannot be

sustained in the eye of law. Accordingly, the order dated

23.01.2017 in Annexure-11 and order dated

03/09.09.2019 in Annexure-16 declaring the petitioner as