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Orissa High Court

Sagram Tudu & Another vs National Human Rights Commission on 15 February, 2024

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                      W.P.(C) No.18918 of 2017

Sagram Tudu & another                 ....              Petitioners
                    Mr. P.K. Rath, Senior Advocate & Associates
                                         & Ms. S. Das, Advocate
                         -Versus-


National Human Rights Commission
& others                              ....         Opposite Parties
                        Mrs. S. Mohanty, Advocate for O.P. No.1
      Mr. P.K. Mishra, Advocate & Associate for O.P Nos. 6 to 13
             CORAM:
             JUSTICE R.K. PATTANAIK

               DATE OF JUDGMENT:15.02.2024

1.

Instant writ petition is filed by the petitioners challenging the impugned order under Annexure-1 passed by the National Human Rights Commission (shortly as 'the NHRC') and subsequent notice issued by the Tahasildar, Tiring, namely, opposite party No.5 vide Annexure-2 on the grounds inter alia that the same are not in accordance with law, inasmuch as, the NHRC does not have any authority to direct the settlement of the schedule land in favour of the alleged encroachers, namely, opposite party Nos.6 to 13.

2. The main grounds of challenge in the writ petition are that the private opposite parties are the encroachers and having sufficient landed property with them and hence, not entitled to any such settlement as per the provisions of the OPLE Act and furthermore, the NHRC is not empowered with any authority to direct settlement of the Government land, hence, therefore, the impugned order under Annexure-1 is without jurisdiction and thus, liable to be quashed in the interest of justice.

3. According to the petitioners, opposite party Nos.6 to 13 have encroached large extent of Government land situate over Plot W.P.(C) No.18918 of 2017 Page 1 of 12 Nos.200 and 205 under Khata No.94 in Mouza-Sanbhundu within the limits of P.S. Tiring in the district of Mayurbhanj. It is alleged that the encroachers are in occupation of the Government land recorded in Rakhita Khata and located adjacent to a school. The contention of the petitioners is that the villagers in the year 2014 represented to the Project Authority, ITDA, Rairangpur complaining about the encroachment of the Government land, which is being used as a playground and it was by way of a grievance petition i.e. Annexure-3. It has been claimed that a similar grievance was addressed to the learned Deputy Superintendent of Police, Tiring vide Annexure-4 and lastly to the learned Collector, Mayurbhanj through Annexure-5 for demarcation of the Government land for being used as a playground by the children of the school, later to which, the local Tahasildar initiated action and directed eviction with an order which was confirmed in Appeal Case No.01 of 2015 by the learned Sub-Collector, Bamanghaty, namely, opposite party No.4. It is further claimed that later to Annexure-7, opposite party No.5 issued notices to the private opposite parties to vacate the Government land vide Annexure-8 and further notices vide Annexures-10 and 11 but despite eviction order and notices issued, no eviction from the Government land was carried out, as a result of which, the villagers represented the learned R.D.C. (Central Division), Cuttack on 22nd March, 2016 and to the learned Collector, Mayurbhanj on 6th April, 2016 vide Annexures-12 and 13 and in the meanwhile, the alleged encroachers approached opposite party No.3 in Encroachment Revision Case No.4 of 2015, which was dismissed by order dated 9th May, 2016 (Annexure-14). The contention is that despite series of orders passed by the Revenue Authorities, no eviction took place and while matter stood thus, the encroachers approached the NHRC, which resulted in passing of the impugned order i.e. Annexure-1 W.P.(C) No.18918 of 2017 Page 2 of 12 but the same is wholly without jurisdiction as it could not have directed settlement of the schedule land. With the above pleading and contention, the petitioners have questioned the legality and judicial propriety of Annexure-1.

4. Heard Ms. Das, learned counsel for the petitioners and Mrs. Mohanty, learned counsel for the NHRC. None appears for opposite party Nos. 6 to 13.

5. Ms. Das, learned counsel for the petitioners reiterates the contention by stating that the NHRC has no jurisdiction to entertain the plea of the encroachers and direct settlement of the schedule land in their favour as the same is beyond its jurisdiction and while contending so, she refers to the relevant provisions of the Protection of Human Rights Act (in short 'the PHR Act') and particularly, Section 12 thereof. It is contended that the NHRC shall have the power to enquire into the acts of human rights violation or abetment of the same and such other matters connected therewith but does not have the jurisdiction to direct Government land to be settled with opposite party Nos.6 to 13, who are not landless persons rather having sufficient landed properties at their disposal, the fact, which has not been duly taken cognizance of, hence, therefore, the impugned order under Annexure-1 is indefensible and thus, liable to be set aside.

6. Mrs. Mohanty, learned counsel for the NHRC, on the other contrary, justified the order under Annexure-1 by contending that with the participation of opposite party No.3 and considering the grievance of the private opposite parties, the NHRC found them to be eligible being homeless persons and accordingly, recommended for settlement of the schedule land after considering the report received about existence of excess Gochar land of Ac.14.5 decimals. Mrs. Mohanty would further submit W.P.(C) No.18918 of 2017 Page 3 of 12 that since Gochar lands are not leasable and in the meantime, opposite party No.5 has issued a general proclamation on 11th July, 2017 for public objection and dereservation of the schedule land for its eventual settlement among eligible homeless persons as per the provisions of the Odisha Government Land Settlement Act, there has been no illegality committed with the impugned direction of the NHRC. It is further contended that since possession of the schedule land for nearly 30-40 years was prima facie established and the same stood not refuted by the petitioners, the private opposite parties are otherwise entitled for its settlement in view of Section 8-A of the Odisha Prevention of Land Encroachment Act. Lastly, while replying to the contention on the jurisdiction of the NHRC, Mrs. Mohanty would submit that opposite party No.1 is empowered to direct settlement of the Government land in favour of an encroacher, if there is prima facie violation of human rights and in the present case, the private opposite parties have been found to be landless and Scheduled Tribes. It is submitted that on receipt of the complaint as per the provision of the PHR Act, opposite party No.1 entertained the same and made the recommendation to the authority concerned to find out the ways to regularize the possession, since the private opposite parties are in de facto possession for more than 30 years and in that connection, directed opposite party No.3 to prepare the census of the families in occupation of the Government land and initiate process for regularization of such possession with the issuance of Record of Rights, such recommendation and action initiated by the local authorities in view of the recommendation of the NHRC, as according to Mrs. Mohanty, is perfectly justified and in accordance with law and hence, the same is not liable to be disturbed rather leaving it open for further inquiry in terms of Section 13 of PHR Act in absence of proper response and compliance of the recommendation.

W.P.(C) No.18918 of 2017 Page 4 of 12

7. Admittedly, the State has not challenged the impugned decision of opposite party No.1. The petitioners, who are aggrieved of the alleged encroachment, have knocked the doors of this Court opposing settlement of the schedule land in favour of the private opposite parties. There is no denial to the fact that the local Revenue Authorities dismissed the claim of the encroachers in connection with Encroachment Case No. 44 of 2014. It is not revealed from the impugned order i.e. Annexure-1 and record maintained by opposite party No.1 which is made available for perusal of the Court as to whether the NHRC was made aware of the orders under Annexures-7 and 14 in relation to OPLE Appeal No.1 of 2015 and Encroachment (Revision) Case No.4 of 2015 respectively. Nevertheless, the NHRC considered the complaint of the private opposite parties and with the participation of opposite party No.3 made the recommendation, consequent upon which, Annexure-2 was issued with a proclamation for the purpose and with a view to invite objections before proceeding to de-reserve the Gochar land and settle the same with the occupants.

8. Mrs. Mohanty, learned counsel for opposite party No.1 submits that the NHRC is clothed with the jurisdiction as per the PHR Act to consider complaints and has powers to make recommendations which are adjudicatory orders legally enforceable and while contending so, she refers to the following decisions, such as, Abdul Sathar Vrs. Principal Secretary to Government, Home Department, Fort St. George, Chennai AIR ONLINE 2021 MAD 5086; Paramjit Kaur Vrs. State of Punjab & others AIR 1999 SC 340; State of U.P. Vrs. National Human Rights Commission AIR 2019 Allahabad 54; National Human Rights Commission Vrs. State of Arunachal Pradesh & another 1996 SCC (1) 742 and Ramdeo Chauhan @ Rajnath Chauhan Vrs.

W.P.(C) No.18918 of 2017 Page 5 of 12

Bani Kant Das & others decided in Review Petition (C) No.1378 of 2009 arising out of Writ Petition (C) No.457 of 2005 and disposed of on 19th November, 2010 by the Apex Court. It is contended that the NHRC does have ample jurisdiction to entertain such complaints which involved violation of human rights as in the present case. According to Mrs. Mohanty, the private opposite parties since found to be in possession for above 30-40 years, landless and Schedule Tribes, the NHRC considered them to be eligible for settlement and made the recommendation which has been acted upon by the local authorities with issuance of a general proclamation i.e. Annexure-2.

9. The details of the proceeding before opposite party No.1 in connection with the complaint received and direction issued therein stand described in the counter affidavit dated 12th July, 2023. It is also revealed in the record maintained by the NHRC that after considering the complaint and response of the District Administration directions were issued vide Annexures-D/2, D/3 and D/4, whereafter, the proceedings were closed. However, in the proceeding, pending regularization of the possession of the land in favour of the private opposite parties, it was held by the NHRC that it could invoke and exercise jurisdiction under Section 13 of the PHR Act, in case, the compliance report is not submitted by opposite party No.3 within the stipulated period.

10. The moot question is, whether, the impugned order under Annexure-1 by opposite party No.1 is tenable in law? In Abdul Sathar (supra), it has been held by the Madras High Court that the recommendations of Human Rights Commission made under Section 18 of the PHR Act is binding on the Government or authority which is under legal obligation to forward its comments on report including action taken and order proposed to be taken and hence, the same having been adjudicated, the order is legally W.P.(C) No.18918 of 2017 Page 6 of 12 enforceable. The powers of the NHRC have been discussed in Paramjit Kaur referred to above. In State of U.P (supra), the Allahabad High Court concluded that the power of the Commission is not only recommendatory as it is also possessed of authority to call for a report from the State Government on any such action taken pursuant to the recommendation made. In the aforesaid decisions, the function of the NHRC as per the Section 12 of the PHR Act has been discussed with reference to Sections 13 and 14 thereof. The power to recommend under Section 18 of the PHR Act is also discussed in detail therein and considered the import of the definition 'human rights' related to life, liberty, equality guaranteed under the Constitution and embodied in the International Covenants and enforceable by the Courts in India with the conclusion that the object of the said Act is for protection of the human rights and enforcing the constitutional guarantee of life and liberty. In Ramdeo Chauhan (supra), it is observed that the NHRC has been constituted to enquire into the cases of violation and for protection and promotion of human rights and such power is extensive which would not therefore be narrowly viewed. For a better reading, the relevant extracts of the said decision is reproduced.

"47. It must be jurisprudentially accepted that human right is a broad concept and cannot be straitjacketed within narrow confines. Any attempt to do so would truncate its all-embracing scope and reach and denude it of its vigour and vitality. That is why, in seeking to define human rights, the Legislature has used such a wide expression in section 2(d) of the Act. It is also significant to note that while defining the powers and functions of NHRC under Section 12 of the Act, the said broad vision has been envisioned in the residuary clause in Section 12 (j).
48. Therefore, it is imperative that while interpreting the powers and jurisdiction of NHRC, the Court W.P.(C) No.18918 of 2017 Page 7 of 12 construes Section 2(d) of the 1993 Act along with its long title and also the Statement of Objects and Reasons of the said Act. The relevant portion of the statement of objects and reasons are excerpted below:
"2.However, there has been growing concern in the country and abroad about issues relating to human rights. Having regard to this, changing social realities and the emerging trends in the nature of crime and violence, Government has been reviewing the existing laws, procedures and system of administration of justice with a view to bringing about greater accountability and transparency in them and devising efficient and effective methods of dealing with the situation.
49. In his Tagore Law Lecture (The Dialectics and Dynamics of Human Rights in India), Justice V.R. Krishna Iyar describes the width and sweep of human rights in his matchless words and which are worth quoting: "Human rights are writ on a large canvas, as large as the sky. The law makers, lawyers and particularly, the Judges must make the printed text vibrant with human values, not be scared of consequences on the status quo order. The militant challenges of today need a mobilization of revolutionary consciousness sans which civilized systems cease to exist. Remember, we are all active navigators, not idle passengers, on spaceship earth as it ascends to celestial levels of the glorious human future."

50. We share the same view.

51 What was said by Alexander Hamilton, the great Constitutional expert and political philosopher, way back in 1775, is poignant still today for having a clear perception of what human rights are. The words of Hamilton still resonate with a strange relevance and immediacy and are quoted below: "The scared rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam in the whole volume of human W.P.(C) No.18918 of 2017 Page 8 of 12 nature, by the hand of divinity itself; and can never be erased or obscured by mortal power."

52. Keeping those broad principles in our mind if we look at Section 12(j) of the 1993 Act, we find that it confers on NHRC "such other functions as it may consider necessary for the promotion of human rights." It is not necessary that each and every case relating to the violation of human rights will fit squarely within the four corners of section 12 of the 1993 Act for invoking the jurisdiction of the NHRC. One must accept that human rights are not like edicts inscribed on a rock. They are made and unmade on the crucible of experience and through irreversible process of human struggle for freedom. They admit of a certain degree of fluidity. Categories of human rights, being of infinite variety, are never really closed. That is why the residuary clause in Sub-sections (a) to (i) of Section 12 of the 1993 Act. The jurisdiction of NHRC thus stands enlarged by Section 12(j) of the 1993 Act, to take necessary action for the protection of human rights. Such action would include inquiring into cases where a party has been denied the protection of any law to which he is entitled, whether, by a private party, a public institution, the Government or even the Courts of law. We are of the opinion that if a person is entitled to benefit under a particular law and benefits under that law have been denied to him, it will amount to a violation of his human rights."

11. As per Article 21 of the Constitution of India, no person shall be deprived of his life or personal liberty except according to the procedure established by law. In catena of decisions, it has been held and observed that right to shelter is a fundamental right guaranteed under Article 21 and reiterated decisions including U.P Awas Vikas Parisad Vrs. Friends Cooperative Housing Society Limited AIR 1996 SC 114. In Francis Coralie Mullin Vrs. The Administrators, Union Territory of Delhi & others AIR 1981 SC 746, the Apex Court held that right to life includes right to live W.P.(C) No.18918 of 2017 Page 9 of 12 with human dignity and all that goes along with it, namely, the dire necessaries of life, such as, adequate nutrition, clothing, shelter etc. In Chameli Singh & others Vrs. State of UP (1996) 2 SCC 549, the Supreme Court further interpreted the expression 'right to life' and observed that in any organized society, the right to live as a human being is not ensured by meeting only animal- needs of man; it is secured only when he is assured of all facilities for his development but includes all such rights guaranteed under the Constitution of India, such as, the basic human rights known to any civilized society. In Ahmadabad Municipal Corporation Vrs. Nawab Khan Gulab Khan & others AIR 1997 SC 152, the Apex Court further held that Article 19(1)(e) accords right to residence and settlement in any part of India as a fundamental right. In Olga Tellis Vrs. Bombay Municipal Corporation (1985) 3 SCC 545, it has also been held that Article 21 of the Constitution of India encompasses the right to livelihood and such right is indivisible from the right to shelter. All such rights under the Constitution of India are besides the international legal obligations and convents. In fact, any such eviction under certain circumstances even by following due process of law could result in deprivation of livelihood which is included in Article 21. With the above discussion, the Court reaches at an inescapable that issues of basic human rights and matters connected to it may be taken cognizance of by the NHRC to deal with it as per the PHR Act.

12. In the case at hand, opposite party No.1 made a recommendation to opposite party No.3 to conduct a census and issued other directions as against the claim for settlement of the schedule land in favour of the private opposite parties. The long possession by the opposite parties was not denied by the District Administration before the NHRC. Furthermore, the private W.P.(C) No.18918 of 2017 Page 10 of 12 opposite parties in view of the long possession and being members of Scheduled Tribe prima facie held to be eligible for its settlement. But, at the same time, the Court is bit apprehensive as settlement has been allowed despite decision against it with the orders of the authorities below and not sure if the said facts were ever brought to the notice of the NHRC since the record does not reveal so. It may be assumed that the District Administration apprised the NHRC about the action initiated against the private opposite parties with all the remedies exhausted before the authorities below but the same is not confirmed from the available record. In spite of such orders, it may be said that in a given set of circumstances, the NHRC would still have the jurisdiction to take up the matter followed by the recommendations. The question is, whether, the case at hand is of such kind, where adverse orders against the private opposite parties could not prevail upon the decision of the NHRC, which has the jurisdiction to deal with the matter? Keeping in view the provisions of the OPLE Act, it is to be understood that the cases of the private opposite parties were never referred to in terms of Section 8-A thereof rather the authorities upheld the action initiated by opposite party No.5 by taking cognizance of the fact that they are encroachers and despite long possession over the schedule land, it cannot be settled with them under Section 7 since it is a Gochar land as restrictions are in place and over and above, such jurisdiction shall have to be exercised on a harmonious reading of the aforesaid provisions as held by this Court in Prafulla Kumar Mohapatra Vrs. State of Orissa & others 2015 (II) CLR 785. Interestingly, the State did not challenge the decision of the NHRC. As earlier stated, the details of the developments which had taken place before the complaints received do not appear to have been drawn to the notice of the NHRC. The Court is persuaded to reach at such a conclusion W.P.(C) No.18918 of 2017 Page 11 of 12 considering the record made available to it. Furthermore, there has been an allegation that the private opposite parties are not landless, inasmuch as, some villagers intervened before the Revisional Authority and claimed so. Under the above peculiar facts and circumstances of the case, the Court though rejects the contention on absence of jurisdiction of the NHRC but is constrained to hold that its decision is vulnerable and hence, cannot be confirmed.

13. Hence, it is ordered.

14. In the result, the writ petition stands allowed. As a necessary corollary, the impugned order under Annexure-1 is hereby interfered with and set aside for the reasons discussed herein above.

(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: 20-Feb-2024 13:55:58 W.P.(C) No.18918 of 2017 Page 12 of 12