Orissa High Court
Biresh Chandra Naik vs State Of Odisha & 4 Others .... Opposite ... on 27 September, 2021
Author: S.K.Mishra
Bench: S.K. Mishra, Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.7677 of 2021
An application under Article 226 and 227 of the Constitution of India
1. Biresh Chandra Naik .... Petitioners
2. Swaroop Chandra Naik
3. Dambrudhar Naik
4. Kanika Naik
-versus-
State of Odisha & 4 others .... Opposite Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioners : Mr. Dayanidhi Mishra
For Opposite Parties : Mr. Ashok Kumar Parija
(Advocate General)
And
Mr. A.K. Nanda
(Addl. Government Advocate)
CORAM:
JUSTICE S.K. MISHRA
JUSTICE SAVITRI RATHO
DATE OF HEARING:-24.03.2021 & 29.04.2021
DATE OF JUDGMENT:- 27.09.2021
S.K. Mishra, J. In this writ application, the petitioners, being the land oustees pray for
issuance of writ of mandamus directing the opposite parties to extend the
assured benefit to the petitioners in following Provisions of the Panchayats
(Extension to Scheduled Areas) Act, 1996, hereinafter called as 'PESA Act'
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for brevity, by following the specific guidelines framed by the opposite party
no.1 under the Orissa Rehabilitation and Resettlement Policy, 2006.
2. The petitioners claim that they are permanent residents of submerged
area under the Deo Irrigation Project, Karanjia in the district of Mayurbhanj.
They are agriculturists by profession. The immovable properties of the
petitioners recorded in the record of rights have been acquired by the
opposite parties for the purpose of Deo Irrigation Project. They also claimed
that certain portion of their land is situated within the forest area. The
petitioners, being the forest dwellers have maintained their families out of the
forest products. The petitioners are identified as affected family and are
coming under the submerged area of the Deo Irrigation Project. The
opposite parties adopted a Rehabilitation and Resettlement Policy without
having the sanctity of law and decided to pay financial package, give
alternative land to the displaced petitioners, without adhering to the
mandatory provisions of PESA Act. They also claim that the opposite parties
have not adhered to the provisions of Schedule Tribes and other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006 and the principles
settled by the Hon'ble Supreme Court in the matter of Orissa Mining
Corporation Ltd. vs. Ministry of Environment and Forest prior to acquisition of
land of the petitioners. Being aggrieved by the action of the authorities, the
petitioners have made representations to the Special Land Acquisition
Officer, but it yielded no result.
The petitioners claim that the authorities did not follow the rule of law
and issued notice on dated 14.12.2020 to the petitioners with a direction to
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demolish their houses by 31.01.2021 and resettle themselves in other places
and to cooperate for completion of Deo Irrigation Project. The authorities
also threatened the petitioners vide a public notice bearing no.55 dated
29.01.2021 to demolish their structure.
The positive case of the petitioner nos. 1 and 2 is that they have not
received compensation and petitioner nos. 3 and 4 received compensation
whereas the alternative land of Ac.0.05 decimal has not been processed in
favour of the petitioners till date. Such inaction of the opposite parties
violates the Article 300-A of the Constitution and needs to be interfered with.
In such factual background, the writ petition has been filed.
3. The opposite party nos. 2 to 4 filed counter affidavit stating that a Palli
Sabha (Gram Sabha) was convened in village Devigada on 04.06.2004
under the Chairmanship of Ward Member Smt. Soudamini Naik in presence
of the then Sarapanch of Dudhiani Gram Panchayat Sri Krushna Chandra
Naik and the Special Land Acquisition Rehabilitation Officer, Mayurbhanj. In
that Palli Sabha, there were 22 members of village Devigada present
including the present petitioners, namely, Biresh Chandra Naik and Swaroop
Chandra Naik. So, the opposite parties denied that there has been a
violation of the provisions of the PESA Act.
As regards resettlement and rehabilitation of displaced families,
Government have been implementing Resettlement & Rehabilitation Policy
for oustees of different projects including major and medium irrigation
projects from time to time by fixing financial package and it is uniform across
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the State. Later, the Government brought a new policy, namely, Orissa
Resettlement and Rehabilitation Policy, 2006 and the petitioners have been
approved as displaced families and sanctioned with the benefit under the
said policy as applicable to other displaced families of submerged area of
Deo Irrigation Project. The petitioners have accepted the resettlement
benefit approved as per the scheme at that time. An amount of Rs.94,365/-
as R & R assistance has been approved in favour of petitioner-Biresh
Chandra Naik along with ex-gratia of Rs. 4,00,000/-. An amount of
Rs.94,365/- has already been paid to him. He is not submitting his bank
account details to receive the rest amount. Similar is the case of Swaroop
Chandra Naik and Dambrudhar Naik. But, in the case of Kanika Naik, wife of
late Kailash Naik, she was approved with the R.R. assistance of Rs.81,900/-
and ex-gratia Rs.4,00,000/-. She has already received the entire amount.
Dambrudhar Naik has also received the part of R & R assistance approved
and ex-gratia approved of Rs.2,00,000/-. As per the provisions of the policy,
the displaced families after receipt of R.R. assistance, should have shifted
from the submerged area, but they did not do so and illegally continued in
possession over the land. They were liable to be evicted after payment of the
benefits, but they are not yet evicted. For that reason, the project got slowed.
Later on, they have been considered for extra financial benefits in shape of
ex-gratia assistance of Rs.2 lakh per family. A second ex-gratia assistance
of Rs.2,00,000/- has also been approved. So, the opposite parties submit
that the allegations made by the petitioners that their case has not been
considered in its proper perspective is misconceived and liable to be
rejected. It is further submitted by the opposite parties that the land of the
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petitioners has been acquired by the Water Resources Department for Deo
Irrigation Project during 1997 and 1998 by due process of law and as per the
provisions of Land Acquisition Act, 1894, all the petitioners' families have
been paid with land compensation as per law in L.A. Case No.1/1997.
The opposite parties further plead that the project, which was
delayed, is near completion and it has been decided to complete it before
the coming kharif season for which evacuation of the oustees is required well
before time and they are required to resettle in a place. Therefore, the
Government is providing homestead land and Biju Pucca Ghar (Special) to
displaced persons apart from the R & R assistance and ex-gratia but the
petitioners are not submitting the necessary documents for extension of R &
R assistance, ex-gratia, homestead land, Biju Pucca Ghar etc. as has been
approved in favour of them. But, most of the families have accepted the
benefit and they have been rehabilitated in Government colony. The
petitioners have been requested to receive the benefits and get rehabilitated
and resettled either in Govt. colony or their own arrangement, which it is
always open to them. Once they are resettled, various livelihood activities of
Government department shall be undertaken, as may be suitable to them.
Hence, the allegations made by the petitioners stating lackadaisical attitude
of the statutory authorities are baseless and not maintainable and liable to
be rejected.
It is the further case of the opposite parties that they have
implemented Resettlement and Rehabilitation Policy of the Government for
Deo Irrigation Project as it prevailed initially and later on, it has been
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replaced by the Orissa Resettlement and Rehabilitation Policy, 2006. It is
uniform throughout the State for all Government projects including major and
medium irrigation. The project authorities cannot adopt any other policy for
resettlement and rehabilitation, which is not approved by the Government.
Most of the displaced families have accepted the benefits including the
petitioners. So, the assertions made by the petitioners are not tenable. It is
also pleaded by the opposite parties that the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 came
into force at a later date and by then, the land of the petitioners have already
acquired by the Government following relevant law much before the
implementation of the aforesaid Act. It is further pleaded that the Deo
Irrigation Project was commenced about 28 years ago and the petitioners
have not accepted the R & R assistance and additional financial benefits in
the shape of ex-gratia only to avoid displacement, which is illegal in the eye
of law. Because of their non-cooperation, the Special Land Acquisition
Officer had issued individual notice to some displaced families including the
petitioner no.4 for personal hearing on 04.09.2020 at 10.30 A.M. at Deo Dam
site camp of Deo Irrigation Project, Hatibari in presence of the local
administration and project authority. The only notice served upon the
displaced families as well as the petitioner nos. 1 to 3 on 24.09.2020 for their
personal hearing on 01.10.2020 at 10.30 A.M. at the Camp Office premises,
Hatibari. Since they are not co-operating with the Government on the dates
of hearing, the Sub-Collector, Block Development Officer, Tahasildar,
Special Land Acquisition Officer, Karanjia, the Chief Construction Engineer
and Executive Engineer of Deo Irrigation Project and other officials were
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present there. One, out of four petitioners, had acknowledged the notice but
did not appear for hearing. Other petitioners got the notices but they did not
appear.
4. The petitioners filed a rejoinder affidavit. They claim that the Palli
Sabha, which was convened on 04.06.2004, is no manner can be termed as
Palli Sabha as it was not in accordance with the provisions of Gram
Panchayat Rules, 1968. It is also allegedly that there was no quorum in the
meeting. They claim that the plea of the opposite parties of holding Palli
Sabha in accordance with the Rules is not correct. Their main grievance is
that the adoption of the Orissa Resettlement and Rehabilitation Policy, 2006
without any consultation with the Gram Sabha is clear violation of Section
4(1) of the PESA Act and the Provisions of Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
5. The opposite parties further filed an additional affidavit, inter alia,
stating that PESA Act is not applicable in the present proceeding in view of
the fact that the Notification under Section 4(1) of the L.A. Act, 1894 was
issued on 21.12.1991, whereas the PESA Act came into force on
24.12.1996. They further state that out of the total displaced families, except
the families of the present petitioners, rest of them have already vacated the
acquired land. It is further pleaded that the present petitioners including their
extended families have been granted rehabilitation and resettlement
assistance as well as the ex-gratia as per their entitlements.
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6. In course of hearing, the learned counsel Mr. Dayanidhi Mishra
appearing for the petitioners submitted that though the land acquisition
process is initiated prior to the PESA Act, even then the petitioners are
entitled to the benefit thereon. They are also entitled to benefits under the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006. Since there is non-compliance of Section 4 (i) of
the PESA Act, the entire acquisition is illegal and the petitioners have to be
granted the relief as prayed for.
7. The learned Advocate General appearing for the State and other
opposite parties submits that the writ petition filed by the petitioners is liable
to be dismissed on the ground of suppression of material facts. He further
submits that the petitioners have not come to the Court with clean hands and
suppressed the material facts regarding payment of compensation to them
as well as the R & R package.
8. The Hon'ble Supreme Court in K.D. Sharma vs. Steel Authority of
India Limited and others, (2008) 12 SCC 481, at paragraph 34 of
judgment, held as follows:
" 24. The jurisdiction of the Supreme Court under Article
32 and of the High Court under Article 226 of the
Constitution is extraordinary, equitable and discretionary.
Prerogative writs mentioned therein are issued for doing
substantial justice. It is, therefore, of utmost necessity that
the petitioner approaching the writ court must come with
clean hands, put forward all the facts before the court
without concealing or suppressing anything and seek an
appropriate relief. If there is no candid disclosure of
relevant and material facts or the petitioner is guilty of
misleading the court, his petition may be dismissed at the
threshold without considering the merits of the claim."
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In the case of G. Narayanaswamy Reddy (Dead) by LRs and
Another v. Government of Karnataka and Another (1991) 3 SCC 261,
the Hon'ble Supreme Court held that the relief under Article 136 is
discretionary and a petitioner who approaches the Supreme Court for such
relief must come with frank and full disclosure of facts. If he fails to do so and
suppresses material facts, his application is liable to be dismissed.
In the case of All India State Bank Officers Federation through its
President and Others v. Union of India, 1990 Supp. SCC 336, the Hon'ble
Apex Court dismissed the writ petition filed by the petitioner on the basis of
suppression of material facts, misstatements and abuse of judicial process.
In the case of Pradeep Kumar Srivastava v. Vishal Singh, 2020
SCC Online All 803, the Hon'ble Allahabad High Court held that suppression
of facts is not advocacy. An exemplary cost was imposed on each of the
three plaintiffs for suppressing material facts, misleading the Court, wasting
the important time of the Court & abuse of the process of Law.
9. In applying the aforesaid ratio decided by the Hon'ble Supreme Court,
we find that actually the petitioners have not come to the Court with clean
hands. They have submitted that they have been denied the benefit they are
entitled to without specifying that in fact they have already received full
compensation and they have been offered 2nd ex-gratia and homestead land
with Biju Pucca Ghar benefits. It would have been an easy process to
dismiss the writ application only on that ground. However, we consider it fit
to decide the questions raised, especially the legal questions, by the
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petitioners in view of the fact that the petitioners claimed to be residents of
the scheduled areas i.e. in the district of Mayurbhanj. For that purpose, the
chronological date of different events has to be taken note.
10. On 28.11.1991, declaration of intended acquisition under Section 6(1)
of the L.A. Act was issued.
On 21.12.1991, Notification under Section 4(1) of the L.A. Act was
issued.
On 24.12.1996, the Panchayats (Extension to Scheduled Areas) Act,
1996 came into force.
On 18.12.1998, the Land Acquisition Officer passed the award under
Section 11 of the Land Acquisition Act.
On 25.01.2003, land acquisition compensations were received by the
petitioners.
On 14.02.2003, Rehabilitation and Resettlement Assistance
amounting to Rs.81,900/- was awarded to displaced family.
On 04.06.2004, the Palli Sabha was conducted towards land
acquisition of some members of the village, which did not include land
owned by the petitioners herein.
On 08.08.2007, possession of the land was handed over to the
Executive Engineer, Deo Head Works Division, Karanjia.
On 18.08.2007, Rs.12,465/- was granted to per family under the R &
R Policy.
On 28.09.2012, ex-gratia amount of Rs. 2 lakh was paid/offered to
each of the petitioners.
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On 04.09.2020 personal hearing of displaced persons of village
Hatibari and Purunapani under the Deo Irrigation Project, Karanjia was held
under the Chairmanship of Sub-Collector.
On 01.10.2020 personal hearing of the petitioner nos. 1, 2 and 3 was
fixed but they did not appear for the same.
On 14.12.2020, the petitioners were noticed separately with direction
to demolish their houses on 31.01.2021 by the authorities.
On 29.09.2020, public notice no. 55 was issued for demolishing their
structure coming with the submerged area.
On 25.02.2021, the present writ petition was presented before this
Court.
On 26.02.2021, stay order was granted by a Bench of this Court.
11. On the basis of the factual averments made, the following questions
arise for determination in this case.
(i) Whether the PESA Act is applicable to any accusation
of land under the L.A. Act, 1894 in view of the fact that
the notification under Sections 4 (1) and 6 (1) of the L.A.
Act was made on 28.11.1991 and 21.12.1991.
(ii) Whether the provisions of Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006 are applicable to this case.
(iii) Whether the petitioners are entitled to receive
compensation as per the provisions of Right To Fair
Compensation And Transparency In Land Acquisition,
Rehabilitation And Resettlement Act, 2013 (for short
"RTFCATILA, RAR Act").
(iv) Whether the Orissa Rehabilitation and Resettlement
Policy, 2006 is violative of the law of land prevailing at
present.
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12. We shall deal with each of the afore-mentioned issues one after
another in the following manner:
(i) The PESA Act came into force on 24.12.1996 when it was
published in the Gazette of India. Since in this case, acquisition has been
made in the year, 1991 under the Land Acquisition Act, 1984, the PESA Act
is not applicable to the land acquisition made by the State for the purpose of
developing Deo Irrigation Project.
(ii) The Provisions of the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006 is not applicable in
this case as the petitioners have not demonstrated by placing appropriate
materials on record that either they belong to Schedule Tribe or that they
were traditionally forest dwellers depending on the forest for their
livelihood. In fact, the petitioners are undisputedly agriculturists or
cultivators, who depend upon cultivation of land. So, we are of the opinion
that the Provisions of Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006 is also not applicable in
this case.
(iii) In order to decide the issue no.iii, we have to examine Section 24
of the Right To Fair Compensation And Transparency In Land Acquisition,
Rehabilitation And Resettlement Act, 2013, for short 'RTFCAT ILA, RAR
Act'. It reads as follows:
" 24. Land acquisition process under Act No. 1 of
1894 shall be deemed to have lapsed in certain
cases.-(1) Notwithstanding anything contained in this
Act, in any case of land acquisition proceedings initiated
under the Land Acquisition Act, 1894 (1 of 1894),-
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(a) where no award under section 11 of the said Land
Acquisition Act has been made, then, all provisions of
this Act relating to the determination of compensation
shall apply; or
(b) where an award under said section 11 has been
made, then such proceedings shall continue under the
provisions of the said Land Acquisition Act, as if the said
Act has not been repealed.
(2) Notwithstanding anything contained in sub-section
(1), in case of land acquisition proceedings initiated
under the Land Acquisition Act, 1894 (1 of 1894), where
an award under the said section 11 has been made five
years or more prior to the commencement of this Act but
the physical possession of the land has not been taken
or the compensation has not been paid the said
proceedings shall be deemed to have lapsed and the
appropriate Government, if it so chooses, shall initiate
the proceedings of such land acquisition afresh in
accordance with the provisions of this Act:
Provided that where an award has been made and
compensation in respect of a majority of land holdings
has not been deposited in the account of the
beneficiaries, then, all beneficiaries specified in the
notification for acquisition under section 4 of the said
Land Acquisition Act, shall be entitled to compensation
in accordance with the provisions of this Act."
13. A plain reading of this provision make it clear that land acquisition
made under Act No.1 of 1894 shall be deemed to have lapsed if no award
under Section 11 of the Land Acquisition Act has been made. In that case,
all provisions of the RTFCATILA, RAR Act, 2013 shall be applicable. As
stated earlier, on 18.12.1998, the Land Acquisition Officer has awarded the
compensation under Section 11 of the Land Acquisition Act, 1894. This fact
is not disputed by anybody. Alternatively, if an award has been made under
Section 11 of the Land Acquisition Act, 1894, such a proceeding shall
continue under the provisions of said Land Acquisition Act as if the said Act
has not been repealed.
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Sub-Section (2) of Section 24 of the RTFCATILA, RAR Act provides
that notwithstanding the provisions of sub-Section (1), in case of land
acquisition proceeding initiated under the Land Acquisition Act, 1894 where
an award under Section 11 has been made five years or more prior to the
commencement of the RTFCATILA, RAR Act, but the physical possession of
the land has not been taken or the compensation has not been paid, the said
proceeding shall deem to have lapsed and the appropriate Government, if it
so chooses, shall initiate the proceeding under the provisions of the
RTFCATILA, RAR Act.
Further provided that when an award has been made and
compensation in respect of majority of land holding has not been deposited
in account of the beneficiaries, then, all the beneficiaries prescribed in the
notification for acquisition under Section 4 of the Land Acquisition Act shall
be entitled to compensation in respect of provisions of the RTFCATILA, RAR
Act.
14. As far as the compliance of Section 24 of the RTFCATILA, RAR Act is
concerned, it is borne out from the record that award under Section 11 of the
Land Acquisition Act, 1894 has been made on 18.12.1998 and on
25.01.2003 land acquisition compensations were received by the petitioners.
All other oustees have been paid the compensation. It is borne out from
Paragraph-7 and the table attached thereto, Annexure-C/4 to the counter
affidavit of opposite party nos. 3 to 4, that Biresh Chandra Naik, Swarup
Chandra Naik and Dambarudhar Naik have already received compensation
as determined under the Provisions of the Land Acquisition Act, 1894. This
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assertion has not been denied by the petitioners in their rejoinder affidavit. A
careful examination of the Paragraph-7 of the rejoinder affidavit reveals that
they were not disputing receipt of the compensation but they were resisting
the rehabilitation assistance given by the State Government.
Further affidavit filed by the opposite parties reveals that in addition to
the money that has been paid to the petitioners as compensation, additional
amounts were paid to the petitioners for rehabilitation and resettlement
assistance amount as well as ex-gratia in favour of the petitioners. In case of
two petitioners, they have already received additional rehabilitation and
resettlement amount. But, Biresh Chandra Naik, Swarup Chandra Naik and
Dambarudhar Naik though noticed to provide their account number, they are
not providing the same. So, from the aforesaid facts, it is apparent that the
award under Section 11 of the Land Acquisition Act, 1894 was passed on
18.12.1998, compensation were paid to the petitioners on 25.01.2003.
Additional amounts of rehabilitation assistance have also been provided to
them, but the petitioners are not receiving the same. So, as per the
Provision of Sub-Section (1) of Section 24 of the RTFCATILA, RAR Act,
neither the accusation will lapse nor the petitioners are entitled to
compensation.
15. Having considered this provision and the reported Constitution Bench
Judgment of the Hon'ble Supreme Court in the case of Indore Development
Authority vs Mohanlal and others, (2020) 8 SCC 129, we are of the view
that in this case, the petitioners are not entitled to receive compensation as
per the RTFCATILA, RAR Act, 2013. It is not disputed that the award was
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made on 18.12.1998. All the other land oustees in the submerged area have
already been paid their compensation and they have been evacuated from
the site. Only the petitioners-two households are resisted it but they have
already been paid the compensation. In case of some petitioners, additional
rehabilitation and ex-gratia amount have been sanctioned and they have
been asked to furnish details of their bank account for transfer of the land but
they have not been complied with the same. So, when all, except the
petitioners, of the submerged area have already given possession to the
Government and have been paid the compensation, it will be fallacious to
state that the acquisition made by the State Government shall lapse or that
the petitioners are entitled to receive higher compensation as per the
provisions of the RTFCATILA, RAR Act, 2013. So, this issue is answered
accordingly.
16. As far as issue no. iv is concerned, we have considered the provision
of the Orissa Rehabilitation and Resettlement Policy, 2006. There appears to
be no violation of the rehabilitation package, as far as the RTFCATILA, RAR
Act, 2013 is concerned. The learned counsel for the petitioners also did no
demonstrate that any of the provisions of the R & R Policy, 2006 is violative
of the provisions of the RTFCATILA, RAR Act, 2013.
17. When the bigger consideration of social justice is considered in this
case, we take note of the fact that all the land oustees, except these
petitioners, in the sub-merged area have already been evacuated and
compensation has been paid. There is no dispute coming forward from their
side. As per the statement of the learned Advocate General, all those
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persons have been rehabilitated as per the Scheme. Thus, all the other land
oustees have been evacuated and paid compensation. Only the four
petitioners of one extended family are resisting the development work.
Though some of them have already received the compensation and the ex-
gratia amount awarded and some have been noticed to provide the requisite
information for transfer of money to their accounts, they are still resisting the
development work without any reasonable basis. Thus, if the larger interest
of development of the area is considered, especially with respect to the
irrigation, which will facilitate agriculture, we are of the opinion that the
petition of the petitioners should be rejected.
In that view of the matter, we are of the considered opinion that the
petitioners' prayer to direct the opposite parties to pay higher compensation
is without any merit and requires to be dismissed. Accordingly, the writ
petition is dismissed.
Urgent certified copy of this judgment be granted on proper
application.
........................
S.K.Mishra, J.
Savitri Ratho, J. I agree.
........................ Savitri Ratho,J.
Orissa High Court, Cuttack th Dated, the 27 September, 2021/PCD Page 17 of 17