Orissa High Court
Bhaskar Chandra Nath vs State Of Orissa & Others ... Opp.Parties on 11 June, 2021
Equivalent citations: AIRONLINE 2021 ORI 168
Author: S.K.Mishra
Bench: S.K.Mishra
HIGH COURT OF ORISSA; CUTTACK
W.P.(C) Nos.29283 &29284 of 2011
Applications under Articles 226 and 227 of the Constitution
of India.
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In W.P.(C) No.29283/2011
Bhaskar Chandra Nath ... Petitioner
Versus
State of Orissa & others ... Opp.Parties
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For Petitioner : M/s. Santosh Ku. Nanda
A.Nanda,
N. Maharana,
D.Mahakud
For Opp.Party Nos.1 to 5: Mr. A.K.Nanda,
Addl. Govt. Advocate.
For Opp.Party No.6 : M/s. B.P.Panda,
R.P.Pattnaik and
S.Moharana.
In W.P.(C) No.29284/2011
Sudhakar Nath ... Petitioner
Versus
State of Orissa & others ... Opp.Parties
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For Petitioner : M/s. Santosh Ku. Nanda
A.Nanda,
N. Maharana,
D.Mahakud
For Opp.Party Nos.1 to 5: Mr. A.K.Nanda,
Addl. Govt. Advocate.
For Opp.Party No.6 : M/s. B.P.Panda,
R.P.Pattnaik and
S.Moharana.
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PRESENT:
MR. JUSTICE S.K.MISHRA
AND
MISS JUSTICE SAVITRI RATHO
Date of Hearing15.4.2021 & 11.6.2021 and
Date of Judgment: 11.6.2021
S.K.Mishra,J. In these two Writ Petitions, the Petitioner-Bhaskar
Ch. Nath in W.P(C) No.29283/2011 and Petitioner-
Sudhakar Nath in W.P.(C) No.29284/2011, both are sons
of Late Srinibas Nath, have prayed that they should be
declared as displaced persons under Clause 2(d) of the
Orissa Resettlement and Rehabilitation Policy, 2006
(hereinafter referred to as the "RR Policy, 2006) dated 14th
May, 2006 published in the Extraordinary Gazette on 15th
May, 2006; and to provide them Rehabilitation and
Resettlement Assistance and it served in the aforesaid
Policy they are not to evict them till the Petitioners are
admitted to Rehabilitation Assistance as envisaged.
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2. The Petitioner-Bhaskar Ch. Nath has been recorded
with Ac.0.07 dec. of land in Plot No.12/559 of Khata
No.59/16 in Itap Mouza in the Odapada Block of
Dhenkanal District. Similarly, the Petitioner-Sudhakar
Nath has been recorded with Ac.0.06 dec. of land in Plot
No.12/560 of Khata No.59/17 in Itap Mouza in Odapada
Block in the district of Dhenkanal.
3. The relevant events in chronological are enumerated
below:-
On 12.3.1996 both the Petitioners purchased pieces of
lands from Sudarsan Nath and Surendra Nath by virtue of
separate registered sale deeds. They took over possession
thereof.
On 14th May, 2006, the State of Orissa adopted the
RR Policy, 2006 known as Orissa Resettlement and
Rehabilitation Policy, 2006 on 15th May, 2006.
The aforesaid Policy was published in the
Extraordinary Gazette on 15th May, 2006.The Government
of Orissa vide a Gazette Notification dated 20th December,
2006 acquired the land for the purpose of Construction of
Road and Bridge under the relevant provisions of the Land
Acquisition Act, 1894. In the mean time, the Petitioners
have constructed residential house with the complete
accommodation thereon and have planted trees including
fruit bearing trees.
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On 13.7.2007, the Petitioners were given notice that
that the lands measuring areas of Ac.0.07 and Ac.0.06
decs. are being acquired and that they may file their show
cause.
On 17.7.2007 the lands were recorded in their name
by carving out Khata Nos.59/16 and 59/17.
On 12.2.2008, the Petitioner-Bhaskar Ch. Nath was
noticed that he was entitled to Rs.11,07,056/- towards his
compensation for acquisition of his land. Similarly, the
Petitioner-Sudhakar Nath was noticed that he was entitled
to Rs.11,36,378/- towards his compensation for acquisition
of his land.
On 29.8.2011, the Executive Engineer, National
Highway Division of Dhenkanal gave notice to both the
Petitioners that they were in unauthorized occupation of
Highway comprising of an area of Ac.126.72 SQM
situated at K.M. 87/550 and an area of Ac.201.23 SQM
situated at K.M. 87/600 by the side of N.H.42. They were
asked to remove the same.
Though the Petitioners had submitted four
representations i.e. on 07.9.2011, 8.9.2011, 29.10.2011 and
31.1.2012, it had no results. Hence, the Petitioners have
filed these two Writ Petitions.
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4. A Division Bench of this Court presided by the
then Chief Justice of this Court on 08.11.2011 issued
notices in both the cases and further directed that the
Petitioners shall not be evicted from their residential
building over the plot in question.
5. Opposite Party Nos.1 to 5 did not file any counter
affidavit. However, Mr. A.K.Nanda, learned Addl.
Government Advocate, argued that the Petitioner in both
the cases are not the residents of village Itap and that
they are unauthorisedly occupying the lands of the
National Highway and that they have already received the
compensation for that acquisition of lands and finally there
are no materials on record that the entire lands owned by
them have been acquired. So they are not entitled to any
Rehabilitation or Resettlement. He also argued that the
case comes squarely under the Resettlement and
Rehabilitation Policy, 2005.
6. The Opposite Party No.6-TATA Steel BSL Ltd. has
filed their counter affidavit. Since there is no averment
against Opposite Party No.6. and the Petitioners have not
prayed any relief against it, it is not necessary to look to its
pleadings. It may be noted here that originally Opposite
Party No.6 was Bhushan Steel Ltd. and in a proceeding
under the Insolvency and Bankruptcy Code, 2016, the
TATA Steel Limited acquired the business and
management of Opposite Party No.6 w.e.f. 18th May, 2018.
Subsequently, the name of Opposite Party No.6 was
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changed to TATA Steel BSL Ltd., an amendment was
made and the TATA Steel BSL Ltd was made Opposite
Party No.6 in place of Bhushan Steel Ltd.
7. Opposite Party No.7, the Executive Engineer,
National Highway Division, Dhenkanal filed a counter
affidavit in this case. The gist of the plea raised by the
Opposite Party No.7 is that actually the land has been
acquired for construction of road over the Bridge on NH
No.55. Requisition was made by the IDCO. After
acquisition of the land, a Deed of Transfer dated 3rd
November, 2009 was effected in favour of the Chief
Engineer, National Highway, Odisha, Bhubaneswar and
the land was purchased by Opposite Party No.7. In reply,
the Petitioners claimed that the proceedings were initiated
during the year 2005 and filing of any objection against the
notifications was not within the knowledge of Opposite
Party No.7. The Land Acquisition Officer, Dhenkanal
being the competent authority finalized the cases by
determining the present market value of land and structures
including well and trees and made payment of
compensation thereon to the Petitioners which have been
received by them without any objection. (But no document
has been filed to show that it has been received without
objection).
8. So the only issue that arises in this case is;
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"Whether the Petitioners are
entitled to the benefits as
enshrined/envisaged under
Orissa Rehabilitation and
Resettlement Assistance
Policy,2006 or the case of the
Opposite Party No.7 has to be
accepted and that the
Petitioners are entitled to
compensation as per the Land
Acquisition Act, 1894 and the
Rehabilitation Scheme of
2005".
9. In the year 2006, the State of Orissa in order to ensure
sustained development through a participatory and
transparent process formulated a comprehensive
resettlement and rehabilitation policy. The Basic objectives
of the policy are:-
(i) to avoid displacement wherever
possible and minimize it
exercising available options
otherwise;
(ii) to recognize voices of displaced
communities emphasizing the
needs of the indigenous
communities and vulnerable
sections;
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(iii) to ensure environmental
sustainability through
participatory and transparent
process; and
(iv) to help guiding the process
of developing institutional
mechanism for implementation,
monitoring, conflict resolution and
grievance redressal.
10. The second objective of this Policy was to recognize
the voices of the displaced communalities emphasizing the
need of indigenous communities and vulnerable sections.
In this case exactly the contrary has happened. Though
notification of acquisition was published on 15th
December, 2006 and published in the Gazette on 20th
December, 2006, this fact has not been disputed by any of
the Opposite Parties by raising a plea traversing it (though
specifically raised in the Writ Petition). The State
Government, especially, the Addl. Government Advocate,
submitted that the Petitioners shall be entitled to the
benefit under the Orissa Rehabilitation and Resettlement
Policy, 2005 and not under the Orissa Rehabilitation and
Resettlement Policy, 2006.
11. We hereby comes to the conclusion that the
Petitioners are entitled to the benefit under the Orissa RR
Policy, 2006 and not under the Orissa RR Policy, 2005.
The difference between the two that in Orissa RR Policy,
2005, there is no effective Rehabilitation Assistance
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Scheme to the effected family. In Orissa RR Policy, 2006
the Rehabilitation Assistance has been described at
paragraph-8 internal page-7 of the document Annexure-1,
page 17 of the Writ Petition. In that R.R.Policy in Clause-
IV the Urban Projects and Linear Projects are provided.
We consider it appropriate to quote the same:-
"IV-Type D:Urban Projects and Linear
Projects.
Each displaced family will get:
(a) Homestead land @ 1/10th of an acre in
rural area and @ a/25th of an acre in
urban area or cash equivalent of
Rs.50,000/- preferably near growth
centers like land by the side of roads
and important junctions, land by the
side of railway stations etc., subject to
availability. If required, project
authority may acquire such suitable
land under the relevant Act for the
purpose.
(b) House Building Assistance:
Rs.1,50,000/- to each displaced family
will be admissible whether settling in
a Resettlement Habitat or elsewhere.
(c) If house/homestead land of any
landholder is acquired for linear
project of if there is total
displacement due to acquisition for
such project, the project authority
shall provide employment to one of
the members of such displaced family
in the project. Wherever RPDAC
decides that provision of such
employment is not possible one time
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cash assistance as decided by the
Government will be paid by the
project authority.
12. In this case, though admittedly the acquisition
was made notified on 15th December, 2006, i.e. after seven
months of coming into force of the RR Policy, 2006,
Paragraph-4 of the RR Policy has not been complied by
Opposite Party Nos.1 to 5. There has been no survey and
identification of displaced family. No document has been
filed by the Opposite Parties 1 to 5 that two months prior
to the publication of the notice, a socio economic survey
was undertaken by the State Government. No document
has been filed that the list of displaced families, were
placed before and approved by the respective
Rehabilitation and Periphery Development Advisory
Committee. In fact, there is no material on record that
actually such a committee was constituted by Opposite
Party No.1 in this case. The Grama Sabha of Panchayat at
the appropriate level were not consulted in the scheduled
area before initiation of the land acquisition proposal. No
Identify Card was issued to each of the displaced family in
a manner prescribed by the Government though as per
Clause (c) of paragraph-2 the cut-off date for the purpose
of compensation shall be the date on which the notification
declaring the intention to acquire land under the relevant
Act or under the provisions of Orissa RR Policy is
published.
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13. In this case, the land of both the Petitioners were
by the side of the National Highway No.55 and, therefore,
they are entitled to the Type-D Scheme for Urban Projects
and Linear Projects. Both the Petitioners are entitled to
homestead land @ 1/10th of an acre in rural area or 1/25th
of an acre in urban area or cash equivalent. Since this
aspect has not been considered, we hereby hold that a
compensation of Rs.50,000/- is not adequate in this case.
They are also entitled to house building assistance @
Rs.1,50,000/- from the date of Notification i.e. 15th
December, 2006 and interest thereon @ 8% per annum till
they are given the actual plot or cash equivalent and house
building assistance. One member of the land holder is
entitled to Rehabilitation employment as the entire
house/homestead land is acquired by the Opposite Parties 1
to 5 and used by Opposite Party No.7.
While extending the Rehabilitation Assistance, the
definition of displaced persons family as appearing in Sub-
clauses 'd' and 'f' of Paragraph-2 of the RR Policy, 2006
definitions shall be kept in mind.
14. In the result, both the Writ Petitions are allowed.
The Opposite Party No.3-the Collector-cum-District
Magistrate, Dhenkanal is hereby directed to give the
aforesaid benefits to the Petitioners within a period of three
months from the date of communication of this order.
Communicate.
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Requisites for communication of this order be
filed within a week.
As the restrictions due to resurgence of COVID-
19 are continuing, learned counsel for the parties may
utilize a printout of the order available in the High Court's
website, at par with certified copy, subject to attestation by
Mr. Santosh Kumar Nanda, Advocate, of the learned Addl.
Government Advocate, in the manner prescribed vide
Court's Notice No.4587 dated 25th March, 2020 as
modified by Court's Notice No.4798 dated 15th April,
2021.
.....................
S.K.Mishra, J
Savitri Ratho,J.
I agree.
...................... Savitri Ratho, J Orissa High Court, Cuttack Dated 11th June, 2021/A.K.Behera.
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S.K.Mishra, J Savitri Ratho,J.
I agree.
...................... Savitri Ratho, J Orissa High Court, Cuttack Dated 11th June, 2021/A.K.Behera.
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