Orissa High Court
Kunjabana Patel vs Land Acquisition Collector on 12 April, 2024
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR
W.P.(C) No. 2345 of 2016
&
W.P.(C) No. 2347 of 2016
In the matter of applications under Articles 226 & 227 of
the Constitution of India.
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W.P.(C) No. 2345 of 2016 Kunjabana Patel ..... Petitioner
-Versus-
Land Acquisition Collector, Sundargarh and others ..... Opposite parties For petitioner : M/s. Arabinda Tripathy and A.K. Beura, Advocates For Opposite Parties : Mr. Sibani Sankar Pradhan Addl Government Advocate (O.Ps. 1 & 2) M/s. Aditya N. Das, N. Sarkar, E.A. Das, A. Tiwari, Advocates.
(O.P. 3)
W.P.(C) No. 2347 of 2016
Parameswar Patel ..... Petitioner
-Versus-
Land Acquisition Collector, Sundargarh and others ..... Opposite parties For petitioner : M/s. Arabinda Tripathy and A.K. Beura, Advocates Page 1 of 25 For Opposite Parties : Mr. Sibani Sankar Pradhan Addl Government Advocate (O.Ps. 1 & 2) M/s. Aditya N. Das, N. Sarkar, E.A. Das, A. Tiwari, Advocates.
(O.P. 3) P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR. JUSTICE G. SATAPATHY Date of Judgment : 12.04.2024 DR. B.R. SARANGI, J. W.P.(C) No. 2345 of 2016 has been filed by one Kunjabana Patel with the following relief:-
"It is therefore prayed that this Hon'ble Court may graciously be pleased to admit the writ petition and issue Rule NISI to the Opp. Parties to show cause as to (1) Why the order of the Opp. Party No. 2 dt.04.08.2015 vide Annexure-9 will not be declared illegal and quashed, and (2) Why the Opp. party No.1 &2 will not be directed to send the name of the Petitioner's family for employment under N.T.P.C. Power Plant as per R.R. Policy 2006."
Similarly, W.P.(C) No. 2347 of 2016 has been filed by one Parameswar Patel with the following relief:-
"It is therefore prayed that this Hon'ble Court may graciously be pleased to admit the writ petition and issue Rule NISI to the Opp. Parties to show cause as to Page 2 of 25 (1) Why the order of the Opp. Party No. 2 dt.04.08.2015 vide Annexure-9 will not be declared illegal and quashed, and (2) Why the Opp. party No.1 & 2 will not be directed to send the name of the Petitioner's family for employment under N.T.P.C. Power Plant as per R.R. Policy 2006."
Since both the writ petitions involve identical issue, they are heard together and disposed of by this common judgment.
2. For the sake of convenience and better appreciation, the factual matrix, as delineated in W.P.(C) No. 2345 of 2016, has been succinctly referred to. 2.1. Formerly, family of the petitioner in W.P.(C) No. 2345 of 2016 was a joint family. The petitioner decided to live separately from the joint family and purchased a piece of land from one Kutkuni Goud, by executing sale deed dated 06.10.2007, measuring Ac 0.03 dec. appertaining to Hal Plot No.3159/2, Khata No.70 of Mouza - Darlipali, PS- Bhasma in the district of Sundargarh to construct a residential house of his own. At the time of purchase, the petitioner had no knowledge regarding the survey of land for NTPC conducted in the year 2006. Though the land Page 3 of 25 was "Goda" in kissam and the petitioner had purchased the said land for residential purpose, he filed an application before the Tahasildar, Lephripada to convert the said land to homestead and also deposited the money for conversion on 16.11.2007. But, in spite of the application for conversion of land, the Tahasildar, Lephripara did not take any steps for conversion of purchased land till 2012. Pending conversion of the land, he constructed a residential building over the said land. After construction of building, opposite party no.2 converted the said land as homestead in the year 2012. Accordingly, ROR was also issued by the Tahasildar, Lephripada. Prior to conversion of Kissam of the land, petitioner had constructed his residential house over that land and residing in that house.
2.2. The Government of Odisha in Gazette Notification No.8581 dated 29.02.2012 notified to acquire some land from Darlipali village for construction of N.T.P.C. Power Plant. The Land Acquisition Officer-cum- Tahasildar, Lephripada, accordingly, invited objections Page 4 of 25 from the land owners by issuing notice U/s. 9(3)(4) of Land Acquisition Act, 1894 (for short "L.A. Act, 1894"). The petitioner filed his objection and claimed for higher compensation of the residential building. After receipt of objections, the opposite party no.2 fixed the awarded amount, along with statutory amount, for acquired land and building. He further directed the land owners to give a declaration that they have taken all the household articles from their houses and demolished their houses by their own, prior to receipt the compensation. The petitioner, on 23.03.2015, filed his undertaking before the Land Acquisition Officer, Lephripada and received entire awarded amount from him with objection. By this process, the petitioner lost his land as well as his residential house. As per Para 2(d) of the Odisha Re-settlement and Rehabilitation Policy, 2006, the petitioner is a displaced family and under Para-8(1) (a) the petitioner is entitled to get employment under the N.T.P.C. Power Project. But opposite parties no.1 and 2 did not take any step to send the name of the petitioner as a displaced family to N.T.P.C. Page 5 of 25 authority-opposite party no.3, to give a job to the petitioner's family under the project.
2.3. Against such inaction of the authorities, the petitioner filed a writ petition bearing W.P.(C) No.11572 of 2015 and this Court, vide order dated 03.07.2015, disposed of the said writ petition at the time of admission and directed opposite party no. 2 to dispose of the representation of the petitioner in accordance with law. In obedience to the order of this Court, the petitioner filed a fresh representation, enclosing therewith certified copy of order of this Court, before opposite party no.2 for consideration of grant of R & R benefit to him. In compliance to the order dated 03.07.2015 passed by this Court in W.P.(C) No. 11572 of 2015, the grievance of the petitioner was considered and the same was rejected, vide order dated 04.08.2015 by the LAO, Sundargarh in L.A. Misc. Case No. 09 of 2015, stating inter alia that the suit land or the house is not the ancestral property of the petitioner and, therefore, he is not entitled to get the Page 6 of 25 displacement benefit or any employment of his family members. Hence, this writ petition.
3. Mr. Arabinda Tripathy, learned counsel appearing for the petitioner vehemently contended that admittedly the petitioner, being the land oustee and the displaced person, is entitled to get the benefit of Orissa Resettlement and Rehabilitation Policy, 2006. To fortify his claim, he relies on Clause 2(d) of the definition of the "Displaced Family" and contended that since the petitioner was residing in his own house prior to the notification issued by the Government for acquisition, he is entitled to get the benefit of R & R Policy, 2006 and denial thereof by way of rejecting his representation cannot be sustained. He further contended that the Odisha Resettlement and Rehabilitation Policy, 2006 being a beneficial one and admissible to a displaced person, since the petitioner is coming under the purview of the same, the authority cannot deny the benefits admissible to him under the policy. Therefore, the order of rejection passed by the authority on 04.08.2015 refusing to grant R&R benefit Page 7 of 25 cannot be sustained in the eye of law. The order of rejection, having been passed by the authority on surmises and conjecturers without any basis or foundation, cannot be sustained and is liable to be quashed.
4. Mr. Sibani Sankar Pradhan, learned Addl. Government Advocate appearing for the State-opposite parties vehemently contended that the petitioner belongs to Village-Raidihi, which is closure to Village-Darlipali. Some agricultural lands of Village-Raidihi and Darlipali have been acquired by the NTPC for construction of the Super Thermal Power Project at Darlipali. NTPC had surveyed the area during the year 2006. The petitioner has got his own ancestral house at Raidihi and staying there without shifting to anywhere. After knowing that the NTPC was going to acquire the land for construction of plant, petitioner purchased a piece of land for an area of Ac.0.03 in Darlipali Mouza. In the sale deed, he had mentioned that he is the resident of Village-Darlipali, but the same is not correct. The petitioner had deposited the cost of conversion of land on 16.11.2007, but he applied for Page 8 of 25 conversion during the year 2012 vide OLR 8(A) Case No.35/2012. The petitioner purchased the land on 06.10.2007, but applied for conversion in the year 2012 without mutation of land in his favour. Therefore, the claim that the petitioner is a displaced person is not correct, for which he is not entitled to get the benefit. It is further contended that the petitioner had not taken any interest for conversion of the purchased land till 2012. The conversion was allowed during the year 2012 after publication of Sec.4(1) notification on 10.3.2011 vide notification no. 10775. Therefore, petitioner has converted the agriculture land to homestead, after notification u/s 4(1) was published, with an intention to get the benefits of homestead land out of higher rate. For acquisition of land, the petitioner has been paid with compensation, which he had already acknowledged as per the determination of cost of land acquisition and the cost of his Kachha house without any objection. As such, Kachha house has been constructed in the midst of agricultural filed, where there is no road, no electricity and drinking water facilities. Page 9 of 25 Therefore, the petitioner is not entitled to get any further relief and the writ petition filed by him is liable to be dismissed. He also contended that the question of employment benefits u/s.8(1)(a) is not applicable in this case and he is not a displaced person as his house at Raidihi is available and is staying in that house till today.
5. Mr. A.N. Das, learned counsel appearing for NTPC-opposite party no.3 admitted the fact that for the purpose of establishment of power plant, the land of the petitioner in village Darlipalli has been acquired. For acquisition of such land, the petitioner has been paid with compensation. It is further contended that for the purpose of setting up of a super thermal power project at village Darlipali, the NTPC embarked upon a survey of land in the year 2006. After completion of the survey, the State Government issued a Section 4(1) notification for the purpose of acquisition of land under the L.A. Act, 1894 vide notification no.10775 dated 10.03.2011. Thereafter, the State Government issued declaration under Section 6 of the L.A. Act, 1894, vide notification no. 8581 dated Page 10 of 25 29.02.2012. The petitioner claims to have purchased agricultural land in the year 2007. Even if the petitioner claims to have purchased the land during the land survey period, yet status of the land, till the date of notification/ declaration under Section 6 of the L.A. Act, 1894, continued to be as agricultural land till 29.02.2012. According to him, on enquiry it was found that prior to converting the land as homestead, the petitioner constructed a house on the said land, after notification under Section 4 (1) of the L.A. Act, 1894 was issued. In terms of Section 23 of the L.A. Act, 1894, the compensation is to be calculated as per the market value of the land at the time of publication of Section 4 (1) notification, yet the State Government calculated a higher compensation. Now, the petitioner claims for R&R benefit, which is not permissible, therefore, vide order impugned, the authorities are well justified in rejecting the claim, which does not require interference of this Court at this stage.
Page 11 of 25
6. This Court heard Mr. Arabinda Tripathy, learned counsel for the petitioner, Mr. S.S. Pradhan, learned Addl. Government Advocate appearing for the State-opposite parties no.1 and 2 and Mr. A.N. Das, learned counsel for NTPC-opposite party no.3 in both the writ petitions 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 petitions are being disposed of finally at the stage of admission.
7. On critical analysis of the materials available on records, it is evident that undoubtedly the petitioner had purchased a piece of land in the year 2007, which was Goda II in kisam. He applied for conversion of the land in the year 2009, but the same was converted in the year 2012. By that time, the petitioner had already constructed a house and was staying there. The contention of the petitioner is that Section 4(1) notification was issued on 10.03.2011 and Section 6(1) notification was issued on 29.02.2012, but even though conversion had not been allowed, till then, the petitioner had purchased the land in Page 12 of 25 question in the year 2007 and was in occupation of the same by constructing a house and after the land was acquired, due compensation has been determined and paid to the petitioner, which he has already acknowledged. Therefore, the dispute, which the opposite parties are now trying to raise, is that after the survey was made in the year 2006, the land was purchased by the petitioner in the year 2007, and that without making conversion a house was constructed over the same, whereas the petitioner was a permanent resident of village Raidihi where he is staying. Such dispute has no meaning at all, in view of the fact that the authorities have acquired the land and the building construed over the same and assessed the compensation amount and disbursed the same in favour of the petitioner, which has been acknowledged. As such, the petitioner can be safely construed as a displaced person as per the R &R Policy. Needless to say, the R & R Policy, which has been floated by the Government, is beneficial in nature and it aims at providing minimum sustenance to the land oustees for the greater interest of the State. There is no Page 13 of 25 dispute that in order to ensure sustained development through a participatory and transparent process, the Government have framed a comprehensive Resettlement and Rehabilitation Policy in the year 2006. Basic objectives of the policy are:-
"1. to avoid displacement wherever possible and minimize it exercising available options otherwise;
2. to recognize voices of displaced communities emphasizing the needs of the indigenous communities and vulnerable sections;
3. to ensure environmental sustainability through participatory and transparent process; and
4. to help guiding the process of developing institutional mechanism for implementation, monitoring, conflict resolution and grievance redressal."
The preamble of such policy states as follows:-
"Government of Orissa has been pursuing various development initiatives to improve the quality of lives. Ensuring social justice being one of the major cornerstones of development, the Government always proactively tries to make sure people's participation in development process. In spite of Government's intention to bring development of the people, development interventions do at times create undesirable consequences. Displacement due to large development projects is one such phenomenon. Government of Orissa has been Page 14 of 25 responding to this problem r1rough various projects specific Resettlement & Rehabilitation Policies and Plans. The current intervention of Policy formulation has actually taken note of the lessons learnt through these past policies, which essentially reflects Government's genuine spirit of learning and retrospection. The ·present Policy draws its strength from experiences from the implementation of past policies, best practices in other states and Orissa Government's Industrial Policy Resolution, 2001. Consultation with various direct and indirect stakeholders including civil society of the state has been conducted and the views of the academicians, and specialists in the field of resettlement c1nd rehabilitation have been considered as a part of democratic response of the Government in Policy formulation. Limitations of the past policies have been acknowledged and analyzed and a flexible frame work has been attempted, which nonetheless demonstrates the dynamism of the Government. Unlike many other policies, there is a strong focus on the modalities of implementation of this Policy that makes it a vibrant instrument to promote sustainable development in the state."
8. Looking at the objectives and preamble of the Odisha Resettlement and Rehabilitation Policy, 2006, there is no doubt that such policy has been framed to ensure sustained development through a participatory and transparent process and, as such, it shall apply to all those projects for which the acquisition of the private land under L.A. Acquisition Act, 1894 or any other Page 15 of 25 law's for the time being in force or proclamation inviting objections in case of Government land is notified.
9. In Ramji Missir v. State of Bihar, AIR 1963 SC 1088 : (1963) 2 SCR 745, the apex Court held a beneficial provision is not to be interpreted in a restricted sense.
10. In Mangilal v Sganchand Rathi, 1965 AIR 101 : 1964 (5) SCR 239, the apex Court held that it is well settled that in interpreting the provisions of a beneficial legislation, courts should lean in favour of a construction which should further the object of such an enactment. If the language of beneficial legislation is plain and unambiguous in that case liberal construction may not arise. But a beneficial legislation should receive liberal construction, but at the same time the courts should not, unless compelled to do so by the clear language used in an Act, put any construction which may lead to absurdity. Page 16 of 25 Courts should not in the guise of liberal construction assume the role of a legislature.
11. In the R & R Policy, 2006 Clause 2 (d) defines "Displaced Family, which reads as follows:-
"2 (d) "Displaced Family," means a family ordinarily residing in the project area prior to the date of publication of notification under the provisions of the relevant Act and on account of acquisition of his/her homestead land is displaced from such area or required to be displaced."
In the aforementioned definition of "displaced family", it has been specifically mentioned that a family "ordinarily residing" in the project area prior to the date of publication of notification under the provisions of the relevant Act and on account of acquisition of his/her homestead land is displaced from such area or required to be displaced.
12. The language used in the definition is absolutely unambiguous, plain and if the interpretation is given to the same, more particularly to the term "ordinarily residing", it would mean that a person claiming compensation normally resides at the time of Page 17 of 25 filing of the claim application. The meaning of the term "ordinarily residing" can be derived from the judgments laid down by the apex Court in the following cases:-
12.1. In State of Andhra Pradesh Vrs. V. Sharma Rao, AIR 2007 SC 137, the word 'ordinarily' has been considered by the apex Court. Similarly, in Kailash Chandra v. Union of India, (1962) 1 SCR 374: AIR 1961 SC 1346 and Krishan Gopal v. Shri Prakash Chandra, (1974) 1 SCC 128 the same has been considered that the word 'ordinarily' means 'normally'.
12.2. In Eicher Tractors Ltd. v. Commissioner of Customs, (2001) 1 SCC 315: AIR 2001 SC 196 (198), the word "ordinarily" necessarily implies the exclusion or "extraordinary" or "special" circumstances. 12.3. The expression "ordinarily resides", had come up for consideration before apex Court in Morgina Begum v. Managing Director Hanuman Plantation Ltd., (2007) 10 SCR 372 : JT 2007 (12) SC 134, wherein the apex Court held that the expression "ordinarily resides" occurring in Page 18 of 25 section 21(1)(b) of the Workmen's Compensation Act means where the person claiming compensation normally resides at the time of filing the claims petition. 12.4. As regards the expression "ordinarily residing", with reference to Section 20(1), 20(1-A) and 20(7) of the Representation of the Peoples Act, 1950, the apex Court, in Union of India v. Dudh Nath Prasad, AIR 2000 SC 525 (paragraph-13, held as follows:-
"Section 20 which is part of the law enacted for purposes of election to Parliament or the State Legislature contemplates many categories of persons including those who are in service. It lays down as to when they would be treated to be "ordinarily residing" in a particular constituency. Sub-section (1) and Sub-section (1-A) of Section 20 are couched in a negative language. Sub-section (1) of Section 20 provides that if a person holds or is in possession of a dwelling house in a particular constituency, he would not, merely on that ground, be deemed to be "ordinarily resident"
in that constituency. Sub-section (1-A) provides that temporary absence of a person from the place of his "ordinary residence" would be ineffective and a person would not cease to be an "ordinary resident" in that constituency merely for that reason."
12.5. Similar view has also been taken by this Court in the case of Sanjukta Devi v State of Odisha, Page 19 of 25 2014 (II) OLR 758, in which one of us (Dr. Justice B.R. Sarangi) was a member.
13. As such, none of the opposite parties disputed that the petitioner had purchased the land on 06.10.2007, applied for conversion of land in the year 2009 and residing over the said land by constructing a house, which comes within the meaning of "ordinarily residing". As such, in view of the acquisition of land and house of the petitioner and payment of compensation, which he has acknowledge, it cannot be construed that he is not a displaced family within the meaning of Rule 2(d) of the Orissa Resettlement and Rehabilitation Policy, 2006.
14. The Land Acquisition Officer-opposite party no.2 passed the order impugned, i.e., order dated 04.08.2015, to the following effect:-
"Heard the petitioner. He produced the original sale deed and ROR for verification. It is found that he along with other eight persons have separately purchased Ac. 0.02 or Ac. 0.03 of agricultural Goda-II land on dt- 06.10.2007. The NTPC had surveyed for Super Thermal Power Project at Darlipali during the year- 2006. After knowing that Page 20 of 25 the construction of STPP is going to be constructed by the NTPC he had purchased Ac. 0,03 of agricultural land within the proposed plant area. His original house is at Raidihi near the village Darlipali. As per his Statement he said that he had constructed a house over the above purchased agricultural plot at Darlipali without converting the land to Gharbari Kisam. His land was converted to Gharbari classification during the year 2012 i.e. after 4 (1) notification vide Notification No- 10775, dt- 10.03.2011 and 6 (1) declaration vide no- 8581, dtd- 29.02.2012. He had managed to get the land compensation at a higher rate i.e. for Gharbari Kisam and the value of the house from the NTPC through the L.A.0 -cum- Tahasildar, Lephripada. The suit land or the house is not his ancestral property. Therefore he is not entitled to get the displacement benefit or any employment of his family members. Hence, his prayer petition for displacement is rejected.
Pronounced in the open Court."
15. A serious observation has been made by opposite party no.2 in the order dated 04.08.2015, as quoted above, that the petitioner had managed to get the land compensation at a higher rate, i.e., for Gharbari Kisam and the value of the house, from the NTPC through the L.A.O-cum-Tahasildar, Lephripada. While making such observation, the Land Acquisition Officer ought to have been conscious about the issue that he is considering the grievance of a displaced family, as defined under Clause 2
(d) of the R&R Policy, 2006. He was to look into the very Page 21 of 25 purpose for which this policy is framed and the objects and reasons to whom it is to be extended. Without doing so, the Land Acquisition Officer, by making a very casual statement, has come to hold that the land or house is not his ancestral property and, therefore, the petitioner is not entitled to get displacement benefit or any employment of his family members, which is absolutely misconceived one and is an outcome of non-application of mind. Rather, the policy being a beneficial one, it should have been leaned in favour of the petitioner, who has been displaced by virtue of the notification issued by the Government for acquisition of land and house for the purpose of establishment of NTPC power station.
16. Much reliance has been placed on a clarification dated 20.10.2010 issued by the Revenue and Disaster Management Department under the subject "Displaced/ Affected families" with reference to Orissa R&R Policy, 2006, which has been annexed as Annexure-A/3 to the preliminary counter affidavit of opposite party no.3 dated 05.10.2023. In the said clarification, it has been indicated Page 22 of 25 that the Government, after careful consideration, have been pleased to clarify that the persons or families, who were ordinarily not residing in or near the project area, are not eligible for and shall not be enumerated as displaced or affected families for the purpose of resettlement and rehabilitation benefits. Persons or families who are normally residing in or near the project areas for a period of at least 3 (three) years prior to the date of Section 4(1) notification (under Land Acquisition Act) above may be considered as ordinarily residing therein for the purpose of R&R benefits.
17. If this clarification is taken into consideration, the petitioner purchased the land in the year 2007 and he applied for conversion of land in the year 2009, however, pending conversion of the land, he construed a house and was staying thereon. Section 4(1) notification was published on 10.03.2011 and Section 6 notification was published on 29.02.2012. By the time both the notifications were published, he was already in possession of the land from 2007. Though he had constructed the Page 23 of 25 building, pending conversion of the land, the conversion was granted in the year 2012. Therefore, the clarification, on which reliance has been placed by opposite party no.3, is fully applicable to the petitioner to extend the benefit of R&R Policy, 2006. Thereby, the order impugned dated 04.08.2015 rejecting the claim of the petitioner to extend the benefit of R&R Policy, 2006 is absolutely non- application of mind and contrary to the provisions of law and, therefore, the same cannot be sustained.
18. The fact of the case of the petitioner in W.P.(C) No. 2347 of 2016 is totally identical. Therefore, by applying the settled position of law, as discussed above, to the facts and circumstances of both the cases, this Court unhesitatingly holds that the order dated 04.08.2015 passed in L.A. Misc. Case No. 09 of 2015 and order dated 04.08.2015 passed in L.A. Misc. Case No. 07 of 2015, in rejecting the claim for extension of benefits under R&R Policy, 2006, which are impugned in W.P.(C) No. 2345 of 2016 and W.P.(C) No. 2347 of 2016 respectively, are liable to be quashed and are hereby quashed. Accordingly, Page 24 of 25 direction is given to the opposite parties no. 1 and 2 to issue necessary instruction to opposite party no.3-NTPC to extend benefits under the R&R Policy, 2006 by giving employment to one of the family members of both the petitioners as expeditiously as possible, preferably within a period of three months from the date of commutation of this judgment.
19. In the result, both the writ petitions are allowed. But, however, in the facts and circumstances of the case, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
G. SATAPATHY, J. I agree.
(G. SATAPATHY)
JUDGE
Orissa High Court, Cuttack
The 12th April, 2024, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Apr-2024 16:43:53 Page 25 of 25