Hindustan Aeronautics Ltd. ... vs State Of Odisha And Others
2023 Latest Caselaw 12153 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                        W.P.(C) No.14804 of 2017

Hindustan Aeronautics Ltd. Engine        ....              Petitioner
Division, Koraput
                     Mr. G. Mukherjee, Senior Advocate along with
                                          Mr. T. Mishra, Advocate


                                -Versus-


State of Odisha and Others

                                              ....       Opposite Parties
                                                    Mr. YSP Babu, AGA
                                           Mr. S.B. Mohanty, Advocate
               CORAM:
               JUSTICE R.K. PATTANAIK

                 DATE OF JUDGMENT:09.10.2023

  1.

Instant writ petition is filed by the petitioner for a direction to the opposite parties to ensure eviction of the land encroachers and to relocate them at Village-Mohanapada within a stipulated period in terms of the decision arrived at and also to direct opposite party Nos. 4 and 5 to provide necessary protection to it and the implementing agency, namely, Central Public Works Department for construction of the remaining portion of the boundary wall on the grounds stated therein.

2. The petitioner has knocked the doors of this Court for the inaction of the opposite parties from evicting the encroachers in terms of the decision taken in the meeting dated 18th October, 2014 and on account of subsequent developments, such as, dismissal of W.P.(C) No. 1380 of 2015 and W.P.(C)PIL No. 16473 of 2016 disposed of on 28th July, 2016 and 22nd March, 2017 respectively. As per the petitioner, about 3121.15 Acres of land was allotted to it by the State Government free of cost for

establishment of Aero-engine factory and also to use the same for other ancillary purposes, later to which it was established with a township set up. According to the petitioner, it is in need of land for expansion of the factory but taking advantage of open area lying within the HAL township, some encroachers claiming themselves as tribals and land losers encroached upon the land situate over Plot Nos. 196 and 197 measuring Ac. 3.11 and Ac.47.10 decimals respectively and while fencing the area by means of a boundary wall to safeguard the installation and also for safety reasons, obstruction was created by them demanding their rehabilitation. The petitioner's claim is that several rounds of discussions were held with the alleged encroachers by the Management of HAL in presence of the local Administration and a decision was taken vide Annexrue-1 series and ultimately, on the former's consent and as per the decision of the State Government, an extent of Ac.81.94 decimal land was identified for construction of a rehabilitation colony so as to settle 73 families, whereafter, the colony came up but in spite of that, evacuation could not be accomplished and hence, the writ petition.

3. On the other hand, the State denied the claim of the petitioner that the District Administration did not take any step to evict the encroachers. According to the State, several attempts were made to evict and rehabilitate the encroachers but the President of the so-called Association of the agitators declined to accept the proposal due to the pendency of W.P.(C) PIL No. 16473 of 2016. It is further stated that despite dismissal of the said writ petition without any liberty to file a fresh one, the encroachers did not vacate the land of the petitioner. It is claimed that the local Administration tried level best to settle the matter but the President and members of the 'Bistapita Sangha' denied to accept relocation and instead decided to go on agitation. So,

therefore, the response of the State is that relocation and rehabilitation of the alleged encroachers though was sincerely attempted but it was unsuccessful primarily due to the non- cooperation by the agitators.

4. Heard Mr. Mukherjee, learned Senior Advocate appearing for the petitioner, Mr. Babu, learned AGA for the State and Mr. S.B. Mohanty, learned counsel appearing for the Land Displaced Association (HAL).

5. Mr. Mukherjee, learned Senior Advocate appearing for the petitioner submits that W.P.(C) No. 1380 of 2015 was not entertained by this Court as it was not in the nature of a public interest litigation and for the fact that the offer of the rehabilitation was accepted and hence, could not have turned round and claimed to continue the occupation and the same was finally dismissed on 28th July, 2016, which was followed by order dated 22nd March, 2017 in W.P.(C)PIL No. 16473 of 2016 allowing the writ petition to be withdrawn without any liberty to file a fresh one for the same cause of action. It is contended that the encroachment is in respect of a patch of land situate within the premises of HAL, which is a Category-A installation and in such view of the matter, the Ministry of Defence, Government of India has directed it to take immediate steps for construction of remaining portion of the perimeter wall. It is lastly submitted that in view of the alleged encroachment and habitation within the limits of the petitioner, there is imminent threat to the installation and in view of such susceptibilities, the Intelligence Bureau has been recommending construction of the perimeter wall around the factory site as well as the estate as adequate security of the factory and its employees is essential. Referring to Annexure-8, a copy of letter dated 30th May, 2016, it is further stated that 1/3rd of the estate of the petitioner still remains uncovered and for the

said purpose, immediate direction to the local Administration in particular is absolutely imperative. By placing reliance on Annexures-2 and 3, Mr. Mukherjee, learned Senior Advocate would submit that in view of the decision on proposed relocation of 82 families, the rehabilitation colony was set up with necessary facilities in place. The contention is that when for rehabilitation, a colony is set up, relocation is unduly opposed and held up as there has been no progress achieved towards the same despite this Court's order dated 11th January, 2018 as the so-called Association and its members did not come forward for any such fruitful discussion to resolve the dispute and hence, a direction to the opposite parties in that regard is indispensible.

6. Mr. Babu, learned AGA for the State referring to the counter affidavit and also the additional affidavit dated 30th October, 2017 submits that action has been taken at the level by the local Administration trying best to bring an end to the dispute by way of settlement but the encroachers did not accept the proposal for relocation and continued agitation. It is contended by Mr. Babu, learned AGA that the State Government has provided a suitable location with the fund sanctioned by HAL, for which, rehabilitation colony was set up at village-Mohanapada, which is at a minimum distance from the encroached area and about 100 metres from the National Highway, yet the encroachers are not inclined to shift to the new location and the local Administration despite all hurdles have been trying to clear the encroachment and therefore, the claim of the petitioner that no steps have been taken to evacuate the encroachers is inappropriate.

7. Mr. Mohanty, learned counsel for the Land Displaced Association (HAL) suo motto appeared and submitted that there has been no rehabilitation in real sense and compliance of the Court's order dated 11th January, 2018, inasmuch as, the demand

for employment has not been considered. In fact, it is claimed by Mr. Mohanty that there is no evidence on record to show that the habitation is within the limits of HAL and while claiming so, he refers to Annexure- F/1, a letter dated 3rd July, 2012 filed along with an affidavit dated 18th May, 2023 addressed to the Sub- Collector-cum-SDM, Koraput with a disclosure made therein that the HAL authorities do not have any record of 9000 Acres of land. A doubt is sought to be created on the basis of Annexure-F/1 claiming that the encroached area may not lie within the limits of HAL. Furthermore, Mr. Mohanty would submit that no rehabilitation has taken place vis-a-vis the affected families as per the provisions of the National Rehabilitation and Resettlement Policy, 2007, which has come into force with effect from 31st October, 2007. It is contended that due to long standing dispute, the matter is not settled for non-cooperation of the Management of the HAL and without any solution, the petitioner is now trying to evict the land displaced persons alleging encroachment. Mr. Mohanty also submits that the Association requests for identification of the land outstees with proper survey and to provide employment and other facilities to the bona fide outstees as per the said policy of 2007, which should be directed by the Court for the local Administration to monitor and to ensure with all remedial measures taken before any such relocation and resettlement.

8. In response to the above, Mr. Mukherjee, learned Senior Advocate for the petitioner submits that the claim of the Association with regard to Annexure-F/1 is wholly misconceived. In fact, pursuant to the direction of this Court dated 11th July, 2023, an affidavit is filed by the petitioner to indicate that 3121.15 Acres of land was allotted for the establishment of Aero-engine

factory at Sunabeda and the Record of Right was accordingly issued in its favour.

9. The subject matter in dispute had been to this Court twice and on both the occasions, once in the nature of PIL, it has not been entertained. As it is made to understand, ever since then, the petitioner is expecting eviction of the encroachers with settlement of the families in the colony newly set up. In fact, from Annexures-2 and 3, it is revealed that the rehabilitation was proposed which was accepted by the State Government and fund was placed to provide rehabilitation of the encroachers. A colony has been built as evident from Annexure-3 to relocate and rehabilitate 82 families. The stalemate is on account of the demand of the agitators of the so-called Associations to provide employment claiming themselves as the displaced persons. Once it has been held by the Court that any such possession of the encroached area cannot be permitted for the fact that rehabilitation offer was accepted, further delay in the construction of the boundary wall of the petitioner cannot and could not have been stalled. Nevertheless, this Court by order dated 11th January, 2018 made an attempt to ensure that the members of the Displaced Persons Association to receive proper response on the demand for employment and issued directions to consider engagement of eligible persons on job contract basis in the establishment of HAL with the participation of the local Administration and others stakeholders. Mr. Mukherjee, learned Senior Advocate for the petitioner submits that such attempt by an order dated 11th January, 2018 failed to bring any settlement and the same did not materialize due to the defiant attitude of the members and leader of the Association. In other words, Mr. Mukherjee submits that though meetings were held and it was in compliance of the Court's order dated 11th January, 2018, there

was no response from the side of the agitators, who actually did not extend any cooperation or show inclination for a meaningful solution.

10. Since the rehabilitation offer was accepted, the PIL at the instance of some of the agitators was not entertained. The liberty to file a fresh writ petition for the same cause of action was also denied by the Court while disposing of W.P.(C) PIL No.16473 of 2016. In that view of the matter, it was the duty of the local Administration to take appropriate steps and measures to ensure eviction and rehabilitation of the persons, who are eligible for shifting to the colony. Of course, a rehabilitation formula was attempted to be put in place later to the Court's order dated 11th January, 2018 notwithstanding dismissal of the writ petitions filed earlier but again the issue at hand failed to be resolved. On the one hand, the petitioners alleges that the members of the Associations did not duly participate and as a result of which, nothing could materialize and on the other hand, the Association claim that there was no earnest effort to rehabilitate the displaced persons in confirmity with the policy of 2007. The steps taken at the local Administration level placed on record which according to the petitioner was no sufficient to ensure evacuation, all the more when, the petitioner is 'A' category installation dealing with manufacture of Aero-engines and serious security concern is involved.

11. Considering the facts on record and developments having taken place till date, the Court is of the considered view that as there has been rehabilitation colony constructed, which is ready in all respect with basic amenities, the eligible and bonafide persons should immediately be resettled leaving it open for any them to seek appropriate remedy as per the policy, 2007, if otherwise entitled to, verification of which, is a time consuming process. The

Court is of the view that the petitioner could consider any such rehabilitation of the affected families as per the policy 2007 but then, in anticipation of any such development to take place, the habitation inside the limits of HAL should not be allowed to continue and for that matter, the construction of perimeter wall must be allowed to complete. The Ministry of Defence, Government of India has been insisting upon the petitioner to take immediate steps for construction of the remaining part of the perimeter wall expressing its concern and existence of a threat perception, which is absolutely justified. So, therefore, the Court is of the conclusion that leaving persons or members of the so- called Land Displaced Association, the rights to exercise under any such policy for rehabilitation, immediate measures are necessarily to be taken for construction of the remaining portion of the perimeter wall with the remedial measures as to relocation. The Court is quite conscious of the sensitivity of the issue involved as it related to relocation which has been undertaken and fully ready with a colony constructed, nevertheless, before any such relocation, the petitioner as well as the local Administration are obligated to ensure that the new location provides all the usual facilities so that the settlees do not find any difficulty after rehabilitation. As earlier concluded, the persons who are to be rehabilitated should still be allowed to exercise the option seeking employment, etc. as per such policy of 2007, if in case, any of them to be eligible which may be accomplished in the manner as directed by this Court by order dated 11th January, 2018.

12. Mr. Mohanty, learned counsel for the Association refers to the affidavit dated 18th May, 2023 stating that a demarcation is necessary to find out whether the habitation by the displaced persons (encroachers) situate within the HAL area referring to Annexure-F/1 by claiming that 12,000 Acres of land was allotted

with no record available with respect to 9,000 Acres. In response to the above, reply affidavit has been submitted by the petitioner claiming the encroached area to be within the limits of HAL. A rejoinder was filed by the President of the Land Displaced Committee (Sangha) stating that demarcation should be directed to carve out the acquired area by the HAL and to ascertain the balance left out whether to be under the possession of the land displaced persons but the Court is of the considered view that such a question was never a dispute earlier. Even though, from Annexure-F/1, it is admitted by the petitioner that HAL do not have any record of 9,000 Acres of land but in so far as the land under possession of the encroachers is concerned, at no point in time, it was ever questioned not being within the limits of HAL. Merely by referring to the aforesaid correspondence, any such demand for identification of acquired and non-acquired land and whether, the encroached area situate within the jurisdiction of HAL or otherwise is unwarranted. There has been no material on record to disbelieve the claim of the petitioner that the encroached land lies within the area of HAL. That apart, time and again discussions have been held between the local Administration and the agitators with the participation of the petitioner and never ever such was an issue. Considering the additional affidavit dated 14th July, 2023 filed by the petitioner in reply to the objection of the Association dated 18th May, 2023, the Court is of the conclusion that no ground exists or made out by the Association for any such demarcation of the area of HAL. From Annexure-A/1 to the affidavit dated 14th July, 2023, the petitioner has clearly indicated its area with demarcated lines with the location of the encroached land. So, it has to be held that the encroachers occupation of the land is and remains a part of the allotted area of HAL and lies within its limit and hence, such claim of the Association warrants rejection.

13. From the counter affidavit of opposite party Nos.1 to 3, contention of the petitioner pleaded on record in juxtaposition to the objection and affidavit filed by the Association, it is clearly evident that on number of occasions attempts were made for a conciliation requesting the agitators to shift to the resettlement colony which, however, failed to materialize on account of demands from the Associations. Furthermore, the petitioner is stated to have compensated the displaced families, which is very much revealed from Annexure-F/1 with 138 persons receiving regular employment for being the land losers. So to say, the demand of the Association is that its members are also belonging to the displaced families and hence, employment and other facilities should be provided to rehabilitate and resettle them. However, from Annexure-F/1, it is made to suggest that the present agitators are encroachers and after the displaced persons have been compensated, they occupied the land of HAL forcefully and unauthorizedly. Nevertheless, 73 families have been identified by the local Administration for their relocation at the rehabilitation colony which has already been constructed and ready for use. It is made to suggest that electricity and other basic facilities are available at the rehabilitation colony, so therefore, the encroachers should immediately be evacuated. With all such facilities in place, the local Administration should provide and render all kinds of assistance to the petitioner to ensure construction of the boundary wall with the shifting of the encroachers to the rehabilitation colony. The series of efforts made and attempted by the petitioner in co-ordination with the local Administration is also revealed from Annexures-10 to 14 to the affidavit dated 10th April, 2018. However, due to the demand of the agitators for employment in HAL with fringe benefits, as it is made to realize, their shifting failed. According to the Court, the safety and security of the installation at Sunabeda, an Aero-

engine factory is certainly at risk, apprehension of which has been expressed by the Government of India and hence, request has been received to take such measures besides completing the construction of the boundary wall which has been delayed but consideration of the grievance of the members of the Association would also have to looked into and examined by the District Administration in coordination with the HAL. In case, any of the members of the Associations are the successors of the displaced persons and are not the encroachers, the same is also to be duly verified by the local Administration. Nonetheless, the risk factor vis-à-vis the installation of HAL and apprehension of the Government of India under Annexure-8 cannot be overlooked and lightly brushed aside. So therefore, the logical conclusion is to ensure completion of the construction wall and also to examine the claim of the encroachers (if displaced persons) in the light of discussions as aforesaid with the relocation taking place forthwith.

14. Hence, it is ordered.

15. In the result, the writ petition stands disposed of with a direction to opposite party No.1 to render assistance to the petitioner, firstly, for relocation of the encroachers in the newly set up colony at village-Mohanapada making provision of the basic amenities and secondly, to consider and examine their grievances on rehabilitation under any such policy, if otherwise admissible and to accomplish it preferably within four months from today. It is clarified that the grievances on rehabilitation shall be considered before the shifting of the encroachers and if it could not be addressed and concluded within the above stipulated period, the process may be continued even thereafter without postponing the relocation. It is believed and expected that the encroachers as members of the so-called Associations would co-operate in ensuring completion of the entire exercise to

be undertaken by the District Administration in collaboration with the petitioner. It is, however, observed that if such cooperation is not extended by the encroachers or the so-called Associations, the District Administration shall ensure their evacuation by taking appropriate and suitable measures with no excuses offered.

(R.K. Pattanaik) Judge

Balaram

Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Oct-2023 10:51:31