Orissa High Court
Afr vs State Of Odisha And Others ..... Opp. ... on 23 February, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 34228 OF 2020
In the matter of an application under Article 226 of the
Constitution of India.
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AFR Manoranjan Ray ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties For Petitioner : M/s S. Mishra, A. Agarwal, G.N. Parida and B. Jena, Advocates For Opp. Parties : M/s D. Mohanty, B.P. Panda, A. Mishra and D. Behera, Advocates P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MISS JUSTICE SAVITRI RATHO Date of hearing: 15.02.2023:: Date of judgment: 23.02.2023 DR. B.R. SARANGI, J. The petitioner, who is a land oustee, has filed this writ petition seeking to quash the letter dated 23.01.2017 issued by the Chairman-cum-Managing Director, MCL vide Annexure-11 and consequential letter // 2 // dated 03/09.09.2019 issued by the General Manager, MCL (Lingaraj Area) vide Annexure-16, by which the claim of the petitioner with regard to employment to his son Satya Sibrat Ray has been denied on the ground that he is not coming under category 'C' and his name is not enlisted in the approved list of 588 and 242 left out 'C' category cases.
2. The factual matrix of the case, in a nutshell, is that in the year 1988 the General Manager (T) SECL, Talcher (now known as Mahanadi Coalfields Limited), the opposite party herein, by letter dated 24.11.1988 submitted a proposal before the Special Land Acquisition Officer for acquisition of tenancy land measuring an area of Ac.278.30 dec. in village Balugaon, Tahasil-Talcher in the district of Dhenkanal for construction of Lingaraj Open Cast Project. The proposal for acquisition over the extent of land includes the petitioner's land bearing khata no.105/232, plot no.546, area Ac.0.01 dec.(Gharabari), plot no.1381, area Ac.0.08 dec., plot no.1487/2136 area Ac.0.08 dec. in total measuring an area of Ac.0.17 dec. in // 3 // village Balugaon, Talcher. Accordingly, on 10.12.1991, the Government of Odisha in Revenue and Disaster Management Department issued a notification under Section 4(1) read with Section 17(4) of the Land Acquisition Act, 1894 in the locality of village Balugaon for acquiring an area of Ac.262.80 dec. of land for the purpose of construction of Lingaraj Open Cast Project. The said notification was published in the official gazette on 16.12.1991, wherein Plot No.1487/2136, area Ac.0.08 dec. along with Plot No.1381, area Ac.0.08 dec. recorded in the name of the petitioner were found mentioned. As per requirement of Section 6 of the Act, 1894, a declaration was also sent to the Government in Revenue Department and consequentially notification was issued under Section 7 of the Act, 1894, which was published by notification dated 28.11.1992. In the said notification, out of total area of Ac.262.80 dec., an area of Ac.106.34 dec. was deleted and only an area of Ac.156.46 dec. in the village Balugaon was notified. Consequentially, notices under Sections 9(1) and 9(3) of the L.A. Act were issued to // 4 // the respective land owners pertaining to the land that were declared to be acquired. Subsequently, an amount of Rs.58,12,324/- was sanctioned towards payment and disbursement of compensation in lieu of the lands that were acquired by the opposite parties. In the year 1993, another notification was floated in the official gazette by the Revenue Department that an area of Ac.56.36 dec. is to be acquired for construction of Lingaraj Open Cast Project in mouza-Balugaon, Talcher in the district of Dhenkanal. In the list of plots to be acquired, the plot of the petitioner measuring an area Ac.0.01 dec. bearing plot no.646 (Gharabari) was also mentioned. 2.1 On 02.06.1988, a notification was published by the Revenue and Excise Deptt., Govt. of Odisha with regard to the "uniform guidelines for rehabilitation of the displaced persons/families due to S.E.C.L. Project at Sambalpur and Dhenkanal districts. As per the said notification, a family or persons displaced from their land would be granted with the benefits of resettlement and // 5 // rehabilitation basing upon the following eligibility criteria:-
a) All the lands of the family have been acquired.
b) More than 1/3rd agricultural lands along with homestead lands has been acquired
c) Only homestead land has been acquired
d) Homesteadless person residing in the village The scheme also envisaged that one member from each family sustaining loss of the dwelling houses, homestead land and agricultural land not less than 1/3rd of the total holding shall be provided with employment on a priority basis for the category 'a'. Further, as per the notification, persons belonging to category 'c' who had lost only homestead land, one member from the family shall be provided with employment according to the availability.
The petitioner, who had lost his homestead land in the said acquisition process, fell under the category 'c', according to notification dated 02.06.1988. Thereby, the petitioner claims to be rehabilitated along with employment. The petitioner was never extended with any compensation and/or employment in lieu of the land // 6 // acquired by the opposite parties. But in the year 1988, a notice was issued by the Land Acquisition Officer in the name of the petitioner directing him to collect the compensation amount of Rs.5761/- against L.A. Case No.55/88 by 05.12.1998, failing which necessary action would be initiated against him. Subsequently, another notice was issued on 20.05.2002 directing him to receive the compensation amount of Rs.646/- by 06.06.2002/ 13.06.2002 against L.A. Case No.90/92 2.2 A list of land oustees of Balugaon village coming under category 'C' was published on 06.11.2006 by the Land Acquisition Officer, MCL, Angul. But the name of the petitioner was not mentioned in the said list in spite of the fact that his only homestead land was acquired by the opposite parties. Thereby, the petitioner along with others, being displaced persons, approached the Government authorities for redressal of their grievances. Accordingly, they were assured by the authorities that a decision would be taken to include their names in the list. Thereafter, on 01.02.2007, Ministry of // 7 // Coal, Govt. of India along with Govt. of Odisha held a meeting in the 2nd floor Conference Hall of the Secretariat, wherein a decision was taken, so far as employment is concerned, to the following effect:-
"EMPLOYMENT: MCL is following the R&R Policy decided by the state Government in 1989 and was providing jobs to A, B and C categories up to April, 2005, after which they discontinued giving jobs to "C" category displaced persons, have been provided with job. It was decided that MCL could consider a village as a unit for the purpose of giving employment to 'C' category persons, if some people of 'C' category of a village were given jobs, the rest of the 'C' category people of the same village will also be given jobs by MCL in order to bring in a sense of equity. However, as a general principle, 'C' and 'O' category displaced persons will be given training for self-employment. MCL will examine investing in training institute to serve this purpose."
2.3. In spite of the decision taken in the minutes of meeting, as mentioned above, the claim of the petitioner for giving employment in exchange of acquiring his lands was not complied with. Even though some others whose cases are coming under the left out category have been extended with the benefits, but the petitioner has been discriminated. In the year 2012, on 25.06.2012, once // 8 // again Mahanadi Coal Field circulated a list of left over land oustees who were to be provided with employment under category 'C'. But the name of the petitioner did not find place therein. Thereafter, the petitioner produced relevant documents in support of his claim over the land and was assured by the MCL authorities to conduct a fresh enquiry on the same. Consequentially, an enquiry was held on 21.10.2016 by the MCL requesting the Tahasildar to provide land particulars of the petitioner as per the records of the Tahasil. Accordingly, the Tahasildar, after conducting an enquiry, basing upon the report of the Revenue Inspector, Sadar Circle, vide letter dated 05.11.2016, replied to the MCL through letter dated 16.11.2016, confirming the status of the petitioner as a land oustee of the village Balugaon. In spite of confirmation received from the Tahasildar, no action was taken by the MCL authority and, as such, the petitioner moved from pillar to post. Ultimately, due to interference of Petroleum Minister, it was found that the opposite parties admitted the fact that compensation amount for // 9 // structure over plot no.646 under khata no.105/232 of village Balugaon, i.e., Rs.28,989/- + Rs.51,198/- and Rs.12,685.45 sanctioned in favour of the petitioner, was arbitrarily paid to one Radha Pradhan, from whom the petitioner had purchased the land and got his name registered in RoR, vide Case No.90/1992. Consequentially, the grievance of the petitioner was considered by the opposite parties and, finally, vide order dated 23.01.2017, the claim of the petitioner was rejected by assigning reasons to the following effect:-
"Kindely refer to D.O. letter No.MoS (I/C)- P&NG/2016/147 dated 26.05.2016 of Shri Dharmananda Pradhan, Hon'ble Minister of State (IC), Pretroluem & Natural Gas, Govt. of India, addressed to CMD, MCL directing to examine the above petition and comment accordingly.
The matter has been examined and is elaborated below:-
Shri Manoranjan Ray, S/o-Karnabira Ray resident of village Remuan being RT/Awardee has lost an area (House over Plot) measuring 0.040 Ac. Under Khata no. 24(P) in the village Lacchmanpur under CBA (A&D) Act,1957, and another are measuring 0.17 Ac. (AG+HS) under Khata No.84 & 105/332 in the village Balugaon under LA Act, 1894.
// 10 // With respect to Lacchmanpur village, notification U/s.11 (1) under CBA (A&D) Act 1957 was issued on 27.06.1985. The entire village was acquired by the then Central Coalfields Limited (presently MCL) under CBA (A&D) Act 1957 vide S/O No.1155 dtd 23.03.2984. Accordingly,52 nos. of employment and 65 no. of cases of cash compensation in lieu of plot has already been provided to the land outsees of village Lacchmanpur during the year 1987 in a package deal as there was no uniform policy for providing employment to the land outsees.
The uniform guidelines, i.e Odisha R & R Policy 1989 came into force only w.e.f 02.01.1989. R &R matters in respect of Lachhmanpur have been settled for all time to come. No more dues are left.
It is pertinent to mention that a compensation amount of Rs.12, 685.45 has already been sanctioned in favour on Manoranjan Ray against acquisition of land under Khata No.24 (P).
Manoranjan Ray lost only agricultural land in village Balugaon thereby coming under Category 'C' as per Odisha R & R Policy 1989. On scrutiny it was found that land under holding No.105/332 and 84 were purchased by Sri Manoranjan Ray from Radha Pradhan, W/o.Chera Pradhan 2 years 3 months 28 days prior to 4(1) notification of LA Act However, the ROR has been issued in favour of Sri Manoranjan Ray on 25.05.1991 i.e only 05 months prior to the date of 4(1) notification . On further scrutiny, it was found that Sri Ray was not a resident of village Balugaob as revealed from the voter list of village Balugaon // 11 // for the year 1994. Also it is seen that, compensation had already been paid to Radha Pradhan against plot No. 546 under holding No. 105/332 (which was later purchased by Manroanjan Ray) and job rehabilitation was provided to her nephew Sri Bhabagrahi Pradhan against land acquired vide holding No.84,24 & 25.
As per clarification received vide No.42388 dtd 20.10.2010 of Commissioner - Cum-Secretary to Govt. of Odisha ,Sri Manoranjan Ray cannot be enumerated as displaced or affected person for the purpose of R & R benefit since he was not residing in the project area 03 years prior to date of publication of 4(1) notification under LA Act Moreover , he is coming under Category 'C' land oustee and his case was not enlisted in the 588 & 242 left out 'C' category cases for job rehabilitation in MCL as because Sri Manoranjan Ray has not yet received compensation and has purchased the concerned land within three years of 4 (1) notification being resident of other village beyond acquired area. Now 'C' category cases are not considered for employment after april 2005 as per understanding between Chief Secretary, Govt. of Odisha and MoC , Govt of India. At present employment is only considered for priority category 'A' 'B' by MCL under 1989 Odisha R &R policy in vogue." 2.4 As a consequence thereof, the General Manager, Lingaraj Area, MCL issued letter to the Special // 12 // Land Acquisition Officer, Angul vide letter dated 03/09.09.2019 under Annexure-16 to the following effect:
"With reference to the subject cited above, it is to mention here that earlier a grievance petition of Sri Manoranjan Ray was received from ministry of coal and accordingly a letter was already written to ministry of coal from CMD MCL vide no.7716 dtd 23.01.2017 regarding non eligibility of the case with sufficient reason and the matter was disposed off.
Further the grievance petition received earlier from Spl.LAO, Angul vide no.1103 dated 02.06.18 regarding claim of employment was send to L & R department ,MCL, HQ for verification and scrutiny to access the eligibility under 1989 R & R policy.
The case was scrutinized on dated 11.02.2019 by the committee constituted for this purpose by the D (P), MCL and the observation of the committee is as follows. Quote:
Manoranjan Ray S/o Karnabira Ray is not eligible for employment as he is coming in category "C" and his name is not enlisted in the approved list of 588/242 left out Category "C" cases.
In view of the observation mentioned above by MCL, HQ the matter was communicated to Sri Manoranjan Roy vide letter no 157 of GM(LA) dated 28.06.19 regarding the not eligibility for employment as per 1989 R & R policy applicable to village Balugaon."
// 13 // Aggrieved by such denial of benefits of rehabilitation appointment, the petitioner has approached this Court by filling the present writ petition.
3. Mr. S. Mishra, learned counsel appearing for the petitioner contended that even though initially controversy arose with regard to acquisition of petitioner's land, but subsequently it was proved that by notification the building and structure of the petitioner was acquired by the opposite parties. Therefore, the petitioner being a land oustee, one of his legal representatives is entitled to get rehabilitation appointment. It is contended that though the land of the petitioner had been acquired and compensation thereof was determined, but, instead of awarding to the petitioner, the same was paid to one Radha Pradhan and Jaya Pradhan vide L.A. Case No.90/92.
3.1 It is further contended that the grievance of the petitioner is founded on the basis of the letter dated 15.09.2017 under Annexure-13 issued at the ministerial // 14 // level wherein it was mentioned that job opportunity should be provided to the son of the petitioner Satya Sibrat Ray on humanitarian ground. Although the petitioner was granted with a land oustee certificate by the Special Land Acquisition Officer, MCL, Angul of L.A. (MCL) Section, District Office, Angul, neither any compensation for the said displacement was granted to him nor was he given job opportunities in the opposite party-corporation as per the guidelines framed according to the R&R Policy. The claim of the petitioner further fortifies from letter dated 02.06.2018 addressed to the General Manager, MCL, Talcher by the Special Land Acquisition Officer, MCL, Angul wherein it was specifically mentioned that the petitioner has lost his agricultural, homestead and dwelling house and hence he comes under Category 'A' land outsee, but he has not been granted any R&R benefits against such acquired land. 3.2 It is further contended that the petitioner had received a letter dated 03/09.09.2019 from the opposite party-authority wherein it was stated that case of the // 15 // petitioner was scrutinized on 11.02.2019 by the constituted committee and it was observed that the petitioner is not eligible for employment as he is coming under category 'C' and his name is not enlisted in the approved list of 588/242 left out category 'C' cases. Such categorization of the petitioner as left out category 'C' disentitling him to get employment opportunity cannot be sustained in the eye of law and, as such, the letter dated 03/09.09.2019 cannot be sustained in the eye of law and is liable to be quashed, on the face of the letter dated 02.06.2018 issued by the Special Land Acquisition Officer, MCL., Angul in the office of the Collector & District Masgistraste, Angul under Annexure-15 classifying the petitioner under category 'A' of the R&R Policy. It is further contended that the case of the petitioner is squarely covered by the order dated 27.07.2015 passed by this Court in W.P.(C) No. 19031 of 2013, apart from the decision taken in the second RPDAC meeting held on 22.06.2007 at Angul, wherein it was decided by the MCL to provide employment to 'C' category // 16 // oustees/land losers in phased manner within a stipulated time. Thereby, it is contended that the opposite parties, having acquired the land of the petitioner under the R&R Policy and not providing him employment opportunities as per the said policy, have acted arbitrarily and illegally. As such, the petitioner seeks for interference of this Court and quashing of the letters which deprived him of getting the benefits as due and admissible to him. 3.3 To substantiate his contentions, learned counsel appearing for the petitioner has relied upon the judgments of this Court in the case of Basanta Kumar Sahoo v. State of Odisha, 2018 (II) ILR CUT 200; New Born and Pediatric Health Centre v. Cuttack Development Authority, (W.P.(C) No. 6341 of 2020 disposed of on 26.04.2022); and Bimal Chandra Pradhan v. Mahanadi Coal Fields Ltd., (W.P.(C) No. 15543 of 2010 disposed of on 14.07.2015).
4. Per contra, Mr. D. Mohanty, learned counsel appearing for the opposite party-MCL contended that // 17 // prior to 02.06.1988, no specific R&R Policy was in existence for acquisition of land. The Government of Odisha in Revenue and Excise Department, vide S.O. No.35318/R dated 02.06.1988, framed the policy/ uniform guidelines for rehabilitation of the displaced persons of the families due to SECL Projects (now MCL) in Sambalpur and Dhenkanal districts wherein the eligibility for rehabilitation benefits has been categorized as 'A', 'B', 'C', 'D'., and in the said policy it is provided that employment facility will be given as per the entitlement. As the petitioner is coming under category 'C' land oustee, but on scrutiny it was found that the land pertaining to khata no. 105/232 & 84 of village Balugaon was purchased by the petitioner from Radha Pradhan prior to two years three months 28 days of the issuance of Sec.4(1) notification under the Act, 1894 and, as such, the above land was mutated in the name of the petitioner on 25.05.1991, which is five months prior to the said Sec.4(1) notification. It is further contended that plot no.546 with kisam Gharabari pertaining to khata // 18 // no.105/232 measuring area Ac.0.01 dec. though had been purchased by the petitioner but practically a structure was standing over the plot which belonged to Radha Pradhan and they were staying in that house. Therefore, compensation against the structure was paid to Radha Pradhan and the compensation against the land was awarded against the petitioner and due to his refusal to receive the same, the compensation amount has been deposited with the State Authority as per the Act, 1894. 4.1 It is further contended that from the voter list of village Balugaon, it would seen that the name of the petitioner does not exist in the year 1994, i.e., in the year in which Sec.4(1) notification was published. This corroborates the fact that the petitioner is not a resident of village Balugaon as on date of Sec.4(1) notification. Therefore, he is not a displaced/affected person. As per clarification dated 20.10.2010 of the Govt. of Odisha, it was clarified that the persons or families who were ordinarily not residing in or near the project are not eligible and shall not be enumerated as displaced or // 19 // affected families for the purpose of R&R benefits. Persons or families who are normally residing in or near the project area for a period of at least three years prior to the Sec.4(1) notification may be considered for the R&R benefits. Therefore, the petitioner is not entitled to get the relief as claimed in the writ petition. Consequentially, he seeks for dismissal of the writ petition.
5. This Court heard Mr. S. Mishra, learned counsel appearing for the petitioner and Mr. D. Mohanty, learned counsel appearing for the opposite party-MCL in hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties the writ petition is being disposed of finally at the stage of admission.
6. On careful appraisal of the factual matrix, as discussed above, it is emerged that the land in question pertaining to holding no.105/232 in village Balugaon measuring Ac.0.01 dec. and holding no.84 measuring Ac.0.16 dec. originally belonged to Radha Pradhan. The // 20 // said lands were purchased by the petitioner from Radhan Pradhan through registered sale deed on 25.05.1991. On 10.12.1991, the Government of Odisha in Revenue and Disaster Management Department issued a notification under Sec. 4(1) read with Sec. 17(4) of the Act, 1894 for acquisition of land in village Balugaon as per the schedule mentioned therein and the same was published in the official gazette on 16.12.1991. Out of the total area of Ac.262.80 dec. intended to be acquired for the purpose of construction of Lingaraj Open Cast Project, which included the land of the petitioner situated in village Balugaon, subsequently an area measuring Ac.106.34 dec. were deleted, as a result of which the land of the petitioner bearing plot no.546 under holding no.105/232 was removed from the process of acquisition. However, subsequently, the Revenue and Disaster Management Department once again notified under Sec. 4(1) of the Act, 1894 for acquisition of an area of Ac.56.36 dec. in village Balugaon, which included the land of the petitioner, i.e. plot no.546 holding no.105/232 measuring an area // 21 // Ac.0.01 dec.. Accordingly, the petitioner was granted with land oustee certificate in respect of his land in award no.304 in L.A. Case No.90/90 and in award no.111 in L.A. Case No.55/88 respectively. Thereafter, he was called upon to collect his compensation amount to the tune of Rs.5761/- against L.A. Case No.55/88 by 05.12.1998 involving holding no.84 and subsequently vide another notice dated 20.05.2002 he was called upon to receive compensation of Rs.646/- by 06.06.2002/13.06.2002 against L.A. Case No.90/92 involving land and holding no.105/232. But the petitioner was never extended with rehabilitation benefits qua employment in lieu of such acquisition of his land in terms of uniform guidelines for rehabilitation of displaced persons/families due to SECL projects at Sambalpur and Dhenkanal districts dated 02.06.1988. The petitioner is coming under category 'C', as per the uniform guidelines and, as such, since the petitioner has not been rehabilitated in lieu of being physically displaced from his homestead land vide holding no.105/232, he ought to have been extended with // 22 // employment. Due to non-grant of employment in favour of category 'C' displaced persons, there was a RPDAC meeting held on 22.05.2007 where a thorough discussion was initiated by the Chairman on the said issue and MCL authorities were asked to make a commitment to provide job to the balance left out 'C' category claimants in order to avert the deteriorating law and order situation. Pursuant to the decision taken in the RPDAC, a list of left out 'C' category land oustees was prepared by the MCL vide order dated 25.06.2012, where the name of the petitioner was not found place. Consequentially, the petitioner made a representation highlighting his grievance, but the same was rejected vide letter dated 23.01.2017 by the MCL on the ground that the petitioner, having purchased the land in question five months prior to the date of notification under Sec. 4(1) of the Act, 1894, is not eligible to be considered as a displaced or affected person for the purposes of being extended with rehabilitation benefits. The petitioner had also made a representation to the Collector and District Magistrate, // 23 // Angul praying for grant of rehabilitation benefits and in response to the same, the Special Land Acquisition Officer, Angul wrote a letter on 22.11.2017 to the General Manager, Lingaraj Open Cast Area that the petitioner having lost the land in terms of the schedule of lands appended thereto, MCL is to consider his request for the purpose of providing him with rehabilitation benefits in lieu of acquisition of the said lands. Even though the request letter dated 22.11.2017 was not looked into by the MCL, the Special Land Acquisition Officer wrote another letter on 02.06.2018 requesting the MCL to consider the grievance of the petitioner. But the General Manager on 03.09.2019 wrote a letter to the Special Land Acquisition Officer, Angul stating inter alia that a decision to reject the grievance of the petitioner was already made on 23.01.2017 owing to non-eligibility of the case with sufficient reason and, as such, the case of the petitioner has already been looked into by the Committee constituted under L&R Department MCL, HQ pursuant to the letter dated 02.06.2018 and the case of the petitioner // 24 // was rejected due to non-inclusion of his name in the list prepared by the authority. Non-inclusion of the name of the petitioner in the left out category of the land oustees is within the complete domain of the authority but it is the admitted case of the petitioner that he has been extended with the payment of compensation which is with the Government. But he has not been extended with rehabilitated benefit qua employment though he is coming under category 'C' land oustee and is granted with land oustee certificate in respect of his land acquired by the authority. Non-consideration of the case of the petitioner amounts to discrimination at the instance of the MCL, as similarly situated land oustees of 'C' category have already been extended with the benefits of employment as per clause-4 of the uniform guidelines. Thereby, it amounts to arbitrary exercise of power by the authority and violates Art.14 of the Constitution of India.
7. In view of eligibility criteria mentioned in clause-2 and clause-4 of the uniform guidelines, as the petitioner's family has lost its homestead land, at least // 25 // one member of its family shall be provided with employment according to sub-clause-(c) of clause-4. The word 'shall' though ordinarily imports as an obligatory inasmuch as considering the purport of the guidelines/scheme, the use of word 'shall' puts a mandate to provide employment to the families of displaced persons according to the availability.
8. The Government of Odisha in Revenue and Excise Department, on 02.01.1989, issued a uniform guideline for rehabilitation of displaced persons/families due to SECL Project at Sambalpur and Dhenkanal districts. For just and proper adjudication of the case, clauses-2 and 4 are quoted below:
"2. A family/person shall be eligible for rehabilitation benefit if:
a) All the lands of the family have been acquired
b) More than 1/3rd agricultural lands along with homestead land has been acquired.
c) Only homestead land has been acquired
d) Homesteadless persons residing in the village // 26 // This is to be ascertained through joint enquiry by a committee consisting of representatives of the South Eastern Coal Fields Ltd. and the Government (Collector of the District.)"
4. Employment:
a) One member from the family sustaining loss of dwelling houses, homestead land and agricultural lands not less than 1/3rd of the total holding shall be provided with employment on a priority basis.
b) One member of each family having sustained loss of 3 acres of non-irrigated land or 2 acres of irrigated land shall be provided with employment on second priority.
c) In case of families having lost only homestead land or the total agricultural holding, one member from each family shall be provided with employment according to availability.
d) In case of families who have lost 1/3rd of the total agricultural holding, one member from each family shall be provided with employment according to availability.
e) Rehabilitation of other displaced families shall be made through self employment schemes."
9. In Hiralal Agrawal v. Rampadarth Singh, 1969 SC 244, the apex Court held that the question whether a particular provision of a statute is mandatory inasmuch as it uses the word "shall" or is merely directory cannot be resolved by laying down any general rule but // 27 // depends upon the facts of each case. The purpose and the object of the statute in making the provision is the determining factor.
10. In Sainik Motor v. State of Rajasthan, AIR 1961 SC 1480, the apex Court held that when a statute uses the word "shall", prima facie it is mandatory but it is sometime not so interpreted if the context or the intention otherwise demands.
11. In State Inspector of Police v. Surya Sankaram Karri, (2006) 7 SCC 172, while considering the provisions contained under Section 17 of the Prevention of Corruption Act, 1988, the apex Court held that the expression "shall" in proviso to Section 17 of the Act makes the provision mandatory.
12. In Hemalatha Garva v. C.I.T., (2003) 9 SCC 510, the apex Court held that use of word "shall" in a statute, ordinarily means that the statutory provision is mandatory.
// 28 //
13. In Biswanath Poddar v. Archana Poddar, (2001) 8 SCC 187, while considering the provisions under Section 16(1) and Rule-4 of the West Bengal Premises Tenancy Act, 1956, the apex Court held that use of word "shall" in Section 16 of the Act and Rules indicates that the legislature intended the requirement of notice under Section 16 of the Act to be mandatory.
14. In the judgment rendered in the case of Bimal Chandra Pradhan (supra), in which one of us (Dr. B.R. Sarangi, J.) was a Member, this Court in paragraphs-8, 9,10 and 11 held as follows:-
"8. On perusal of the above mentioned pleadings it is made clear that the petitioners' case has been ignored by the authorities. While providing four employment to the nominees of two joint owners of the land namely, Iswar Pradhan and Jeevan Pradhan, they have refused to provide such employment to the nominees of two other joint owners namely, Deba Pradhan (father of the petitioners) and Laxmidhar Pradhan. This clearly indicates the arbitrary and unreasonable exercise of powers by the authorities in giving employment to four persons of two joint owners and not giving employment to other joint co-owners is absolutely a discriminatory one. Therefore, the action of the authorities in providing employment on the plea that there was no vacancy in Category 'D' cannot sustain in the eye of law. The Special Land // 29 // Acquisition Officer-opposite party no.4 in his counter affidavit has categorically indicated the eligibility of the petitioners to get employment under the Rehabilitation and Resettlement Scheme evolved by the State Government in Annexure-A/4. As such, Sub-Clause-(d) of Clause-4 of the Scheme puts a mandate that in case of families who have lost 1/3rd of the total agricultural holding, one member from each family shall be provided with employment according to availability. The use of word 'shall' in its ordinary import is obligatory. Inasmuch as considering the purport of the Scheme the use of word 'shall' puts a mandate to provide employment to the families of the displaced persons according to availability.
9. In Land Acquisition Officer V. Karigowola, (2010) 5 SCC 708, the word 'shall' in section 23(1) of the Act came up for consideration where the apex Court held that it would have to be construed as mandatory and not directory.
10. In Pesara Pushpamala Reddy v. G. Veera Swamy, (2011) 4 SCC 306 referring to the principles of statutory interpretation 12th Edn., 2010, pp. 406-07 (by Justice G.P. Singh), the apex Court has held as follows :
"the use of the word 'shall' raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other consideration such as object and scope of the enactment and the consequences flowing from such construction."
11. Therefore, taking into consideration the above mentioned interpretation of the word 'shall' as used in the present context though ordinarily it imports as a obligatory one, but in essence providing employment to one of the families for loss of 1/3rd of the total agricultural holdings, puts a mandate to provide employment to one of its member from each family according to the availability. Thus, denial of // 30 // benefit on the ground that there is no availability of vacancy cannot sustain in the eye of law. In view of the fact that as per the pleadings available on record if four persons sponsored by two joint owners have been provided employment, the petitioners could not have been denied such employment being the two other co-joint owners of the land oustees."
Therefore, taking into consideration the aforementioned judgment of this Court, it is made clear that the word 'shall' used in clause-4 of the guidelines and taking into consideration its purport, puts a mandate to provide employment to the family of the displaced persons according to the availability.
15. The petitioner's eligibility to be extended with rehabilitation benefit qua employment should not have been rejected having regard to the clarification dated 20.10.2010 issued by the Commissioner-cum-Secretary to the Government in Revenue and Disaster Management Department, as the said clarification applies to the R&R benefits under 2007 policy. But the petitioner's case is to be considered in terms of the uniform guidelines for rehabilitation of displaced persons/family due to SECL // 31 // Project at Sambalpur and Dhenkanal districts dated 02.06.1988 and thereafter the uniform guidelines for rehabilitation of displaced persons due to SECL project at Sambalpur and Dhenkanal districts which had been issued on 02.01.1989, which makes an ample provision for giving benefit to the land oustees, that in case of family having lost the only homestead land or the total agricultural holding, one member from each family shall be provided with employment according to availability. The said clarification dated 20.10.2010 may have prospective application, but, as the petitioner's land was acquired prior to commencement of such clarification, the same is not applicable to the petitioner.
16. Much reliance was placed on the clarification of uniform guidelines of rehabilitation of persons displaced due to acquisition of land for SECL Project that was issued on 30.01.1992. But the same is also not applicable to the case of the petitioner because a right had already been accrued in favour of the petitioner pursuant to the uniform guidelines dated 02.06.1988 and 02.01.1989 // 32 // respectively. Once a right has already been accrued, that cannot be divested by assigning subsequent clarification, which has got prospective application. Consequentially, the petitioner is entitled to get the benefits in terms of the uniform guidelines dated 02.06.1988 and 02.01.1989. More so, the petitioner is a land oustee for which he has been granted with land oustee certificate and compensation has been paid, which has been kept in deposit with the State authorities in a separate account. Therefore, due to laches on the part of the opposite parties for non-inclusion of the name of the petitioner in the left out list prepared for category 'C' land oustee, he cannot be deprived of getting his legitimate claim as due and admissible to him.
17. The reasons assigned in the counter affidavit justifying the action of the authorities, being not formed part of the record, cannot be sustained in the eye of law.
18. In Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851, which has // 33 // been followed by this Court in New Born and Pediatric Health Centre and Bimal Chandra Pradhan (supra), the apex Court held that:
"When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out."
19. In Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16, the apex Court held as follows:-
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older."
// 34 // A similar view has also been taken by the apex Court in Bhikhubhai Vithlabhai Patel v. State of Gujarat, (2008) 4 SCC 144. Thereby, the opposite parties cannot justify their action by assigning reasons in the counter affidavit, in absence of any reason placed on record in its proper perspective.
20. In view of the facts and law, as discussed above, it is made clear that the clarification dated 30.01.1992 on uniform guidelines for rehabilitation of persons displaced due to acquisition of land for SECL project annexed as Annexure-P/3 to the additional affidavit filed by the opposite party-MCL improving the reasons in the orders impugned by rejecting the case of the petitioner for giving rehabilitation benefit, being arbitrary exercise of power of the authority, cannot be sustained in the eye of law. Accordingly, the order dated 23.01.2017 in Annexure-11 and order dated 03/09.09.2019 in Annexure-16 declaring the petitioner as ineligible for employment as per 1989 R&R Policy applicable to village Balugaon, cannot be sustained in the // 35 // eye of law and are liable to be quashed and hereby quashed. The opposite parties are directed to give employment to the son of the petitioner as per R&R Policy, 1989 as expeditiously as possible, preferably within a period of two months from the date of production/ communication of this judgment.
21. Resultantly, the writ petition is allowed. However, there shall be no order as to costs.
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DR. B.R. SARANGI, JUDGE SAVITRI RATHO, J. I agree.
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SAVITRI RATHO, JUDGE Orissa High Court, Cuttack The 23rd February, 2023, Ashok/GDS