MAHANADI COAL FIELDS LTD. & ANR. VERSUS MATHIAS ORAM & ORS.

MAHANADI COAL FIELDS LTD. & ANR. VERSUS MATHIAS ORAM & ORS.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ INHERENT JURISDICTION
MISCELLANEOUS APPLICATION NO. 231 OF 2019
IN
 SPECIAL LEAVE PETITION (C) NO(S). 6933 OF 2007
MAHANADI COAL FIELDS LTD. & ANR. …PETITIONER(S)
VERSUS
MATHIAS ORAM & ORS. …RESPONDENT(S)
WITH
CONMT.PET. (C) No.540/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.541/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.542/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.543/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.544/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.545/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.546/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.547/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.553/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.554/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.555/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.556/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.557/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.558/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.559/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.560/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.561/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.562/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.563/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.564/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.685/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.686/2019 in SLP(C) No.6933/2007
 CONMT.PET. (C) No.687/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.548/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.549/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.550/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.551/2019 in SLP(C) No.6933/2007
CONMT.PET. (C) No.552/2019 in SLP(C) No.6933/2007
2
SLP(C) No.15877-15878/2020
J U D G M E N T
S. RAVINDRA BHAT, J.
1. The oft repeated aphorism, “Justice delayed is justice denied” cannot apply
with more force than in these proceedings. The applicant writ petitioners
(hereinafter, “landowners / displaced persons”) have waited for roughly half the
number of years that this republic has existed. They predominantly belong to
tribal communities, and their lands were first notified and acquired in 1988 for
the purposes of coal mining. Yet, they have not been paid compensation. The
tangled and torturous journey of their tribulations has been elaborately
documented in a previous judgment of this court.1
A. Background
2. Mahanadi Coalfields Ltd. (hereinafter, “MCL”) is a subsidiary of Coal
India Ltd. (hereinafter, “CIL”) the biggest coal producer in the country. MCL was
aggrieved by an order2 of the Orissa High Court, wherein the High Court directed
the Central Government and MCL to immediately proceed under provisions of
the Coal Bearing Areas (Acquisition and Development) Act, 1957 (hereinafter,
“CBA Act”) to determine and disburse compensation payable to landowners as
expeditiously as possible, preferably within six months.
3. The Central Government issued the preliminary notification under Section
4(1) of the CBA Act on 11.02.1987, conveying its intention to prospect for coal
in village Gopalpur and others, district Sundergarh, Orissa. This was followed by
another notification under Section 7(1) of the CBA Act on 27.07.1987 for
acquisition of the notified lands. Finally, by notification dated 10.07.1989, the
declaration of acquisition of the land under Section 9 of the CBA Act was made,
which led to the lands being vested absolutely in the Central Government. On
1 Mahanadi Coal Fields Ltd. & Anr v. Mathias Oram & Ors., (2010) 11 SCC 269.
2 W.P. (Civil) No.11463/2003 (Orissa High Court), dated 13.11.2006.
3
20.03.1993, the Central Government issued notification under Section 11 of the
CBA Act, vesting the acquired land and all rights therein in MCL, retrospectively
with effect from 17.11.1991. The writ petitioners before the High Court were
landowners who were not paid any compensation for their lands. After
unavailingly seeking the same, the landowners approached the High Court
seeking direction for compensation. Before the High Court, the landowners’
claims were mired in a dispute between Coal India Ltd. (hereinafter, “CIL”) and
the Central Government. CIL urged that it no longer required the lands, whereas
the Central Government rejected CIL’s proposal for denotification by order dated
12.09.2006. The High Court held that a land oustee under Section 9 of the CBA
Act was to be paid compensation after taking into consideration the factors
enumerated under Section 13(5) of the CBA Act. MCL preferred a special leave
petition before this court. The court sought the assistance of the then Solicitor
General for India, Mr Gopal Subramanium, who proposed a scheme which was
accepted by this court, in its judgment reported as Mahanadi Coal Fields Ltd.
(supra).
4. The relevant extract of the operative portion of the judgment is reproduced
as follows:
“22. The scheme proposed by Mr. Subramanium and agreed upon by the
Central Government and the Coal Company is as follows:
“1. The land in Village Gopalpur, District Sundergarh, Orissa stands
acquired by the Central Government and ownership is vested with MCL
which will determine and pay compensation to the erstwhile landowners.
2. In respect of vast portions of the acquired land (excluding the area where
mining activities are being undertaken), actual physical possession was never
taken. The State of Orissa and its officers are directed to assist MCL in taking
actual physical possession of the acquired land.
3. Since the matter pertains to an acquisition of 1987 i.e. more than two
decades ago, the extent of actual physical possession needs to be
reascertained, it is necessary that the genuine landowners, amount of
compensation payable, status of possession, use to which the land has been
put in the last two decades, is discovered. The entire land needs to be surveyed
again.
4. In accordance with the advice of the learned Solicitor General, a Claims
Commission needs to be set up with representatives of the Central
Government as well as MCL. It is submitted that the Claims Commission will
4
consist of 3 members:
(a) A former Judge of the High Court of Orissa (Chairman);
(b) An officer who has held a post/office equivalent to the rank of
Secretary to the Government of India;
(c) An officer to be nominated by the Chairman, Coal India Ltd.
The Claims Commission will carry out the exercise referred to above and
submit a report on the compensation payable and the persons to whom it
should be paid, within a period six months.
5. The abovesaid report will be submitted to the Central Government, and
upon formal approval by the Central Government, MCL will make payment
within a further period of two months.
6. Some portions of the land have been determined to be unsuitable for the
petitioner having regard to physical features (mining being impossible, area
being heavily populated, etc.). The Claims Commission will examine whether
possession of such portions has been taken over by the petitioner. It would be
open to the Claims Commission to recommend denotification/release of the
said land from acquisition.
7. In view of the special facts obtaining above, the Central Government may
be permitted to denotify the said land from the acquisition as a special case,
since the land is not required and possession also was never taken.
8. Even in the case of the denotified land, suitable compensation, in
appropriate cases, may have to be paid to the landowners. The Claims
Commission may also give a report on this aspect of the matter.
9. The learned Solicitor General has opined that such matters of uncertain
acquisition or pending compensation claims lead to unnecessary social
tensions and the petitioner must act in a spirit of good governance. Upon
examination of all the surrounding villages, in the light of the opinion of the
learned Solicitor General, for the sake of uniformity as well as fairness, the
above exercise would be carried out for the following villages as well:
(i) Sardega
(ii) Jhupurunga
(iii) Ratansara
(iv) Tikilipara
(v) Siarmal
(vi) Tumulia
(vii) Karlikachhar
(viii) Kulda
(ix) Bankibahal
(x) Balinga
(xi) Garjanbahal
(xii) Bangurkela
(xiii) Kiripsira
(xiv) Lalma R.F.
It must be noted that in the case of Sardega and Tikilipara Villages, partpayment has already been made. Further, in the case of Bankibahal and
Balinga Villages, full payment has already been made but possession has not
5
been fully taken.
10. The petitioner and the Central Government shall assist in the
establishment of the Commission including the provision of suitable
infrastructure. The honorarium payable to the Commission may be
determined by this Hon'ble Court.
11. This order is being passed with the agreement of all parties and in the
peculiar facts and circumstances of this case. The said order shall not operate
as a precedent.”
23. The scheme proposed by Mr Subramanium was shown to Mr Janaranjan
Das, the counsel appearing for the respondent-writ petitioners and he also
gave his express consent to it. We, accordingly, approve the scheme but with
certain clarifications and modifications as stated below.
24. We nominate Mr Justice A.K. Parichha, a former Judge of the High Court
of Orissa as Chairman of the Commission. Mr Solicitor General in
consultation with the Secretary, Ministry of Coal, Government of India, shall
nominate an officer who has held a post/office equivalent to the rank of
Secretary to the Government of India as one of the members of the
Commission within two weeks from today. Similarly, the Chairman, Coal
India Ltd. shall nominate an officer as the other member of the Commission.
Mr Justice A.K. Parichha, shall be paid honorarium equal to the monthly
salary of a sitting High Court Judge and he shall be entitled to all other
facilities as available to a sitting Judge of the High Court. The officer
nominated by Mr Subramanium/Secretary, Ministry of Coal, Government of
India, shall similarly be entitled to honorarium and other facilities available
to a serving officer of his rank. All the expenses of the Commission shall be
borne by Coal India Ltd.
25. The Commission shall prepare its report as envisaged in the scheme, first
in respect of the lands in Village Gopalpur, District Sundergarh, Orissa, as
soon as possible and in any event not later than four months from today. In
case the Commission recommends denotification/release of any portion of the
lands earlier acquired, it would also determine the rate or the amount of
compensation/mesne profit payable to the landholder. The Commission shall
submit its report not to the Central Government but to this Court for approval
and further directions. Any denotification/release of the land would be only
subject to further orders passed by this Court in light of the Commission's
report. The Commission may proceed with the survey in relation to the
acquired lands in other villages, as suggested in Para 9 of the scheme only
after submitting its report in respect of Village Gopalpur and subject to
further orders by this Court. The officers of the State Government and the
Coal Company shall extend full help and cooperation to the Commission in
preparing the report and in the discharge of their duties in terms of the
scheme.”
5. The Claims Commission appointed by this court proceeded to issue notices
and call for claims to determine all those eligible for compensation and
rehabilitation, and its extent. Based on the report in relation to village Gopalpur,
the court passed an order on 19.04.2012, approving the recommendations
6
contained in it. The relevant extracts of the court’s order are as follows:
“The Amicus pointed out three broad features of the way in which the
Commission has fixed the amounts of compensation for the lands of the
villagers acquired by Mahanadi Coal Fields Ltd., the petitioner Company.
First, the acquisition notifications were made way back in the year 1984 but
no compensation was paid to the villagers/landholders for the past 28 years.
The Commission, therefore, took the view that fixing the market value of the
lands with reference to the date of the acquisition notifications would be
wholly unfair, unjust and unreasonable and has taken the date of notice of
survey given by the Commission in September, 2010, as being relevant for
fixing the market value of the lands under acquisition. The Amicus supported
the view taken by the Commission and, in the facts of the case, we also fully
endorse the Commission's decision in regard to the date with reference to
which the market value of the lands under acquisition is to be determined.
Secondly, in regard to fixing the rate of compensation, the Amicus submitted
that the Commission had followed a very scientific approach which was fit to
be approved by this Court. We accept the method adopted by the Commission
for fixing the rate of compensation and the actual mounts of compensation
determined for payment to the individual landholders.
Thirdly, in regard to the. rehabilitation policy, the Commission has applied
the rehabilitation policy of the year 2006 as it is more liberal and beneficial
for the landholders in comparison to the earlier rehabilitation policy of the
year 1998. On this score also, we entirely agree with the view taken by the
Commission.
In short, we accept the Commission's report in all respects and make, it an
order of this Court. At this stage, we would like to draw the attention of the
Commission to some other aspects of the matter as suggested by the Amicus.
The Amicus rightly submitted that setting up of schools and health centres in
the villages where lands have been acquired in large areas should also be
made an obligation of the petitioner-Company for whose benefit the
acquisitions are made.
We are not aware whether in the 2006 rehabilitation policy there are
provisions for setting up schools and health centres in the villages affected by
land acquisition. In case, the rehabilitation policy does not have such
provisions, the Commission may consider directing Mahanadi Coal Fields
Ltd. to provide for good, functional schools with sufficient number of teachers
and well-equipped health centres in all the villages affected by land
acquisition.
We would also like to remind the Commission that the good work done by it
so far will only be complete as and when the individual villagers whose lands
are acquired actually receive the amount of compensation and other benefits
under the compensation and rehabilitation package. We are sure that the
Commission would be conscious of this aspect of the matter. But, we would
still like to tell it that all the good work done by it may be dissipated unless
the villagers get their lawful dues in full and no part of compensation amount
or any element of the compensation/rehabilitation package is allowed to be
wasted or taken away from the concerned landholder by deception or
fraudulent means. It will be, therefore, open to the Commission also to frame
proper. policies for payment of the compensation money and to ensure that
7
the compensation/rehabilitation benefits are actually received by the
landholders. In this regard, the Commission may consider directing
staggered payment of the amount of compensation so that the compensation
money is not altogether wasted.
Mr. Ashok Panigrahi submitted that some of the landholders whose lands
were also taken in acquisition were unable to submit their claims before the
Commission as they had gone to Jharkhand for earning their livelihood. If
that be so, it will be open to them to make their representations before the
Commission which shall consider those representations and pass appropriate
and reasonable orders. We deeply appreciate the painstaking work done by
the Commission and request it to carry on its good work in respect of the rest
of the villages where the lands were similarly acquired following the model
framed by it in respect of Gopalpur village.
We repeat our direction that the Governmnent of Orissa, Mahanadi Coal
Fields Ltd. and the local administration shall render full help, -assistance and
cooperation in the work of the Commission and in implementation of the
Commission's directions in regard to payment of compensation and the
rehabilitation package admissible to the concerned landholders.
Let copies of the Part-II Report of the Commission be given to the Amicus,
Gp. Captain Karan Singh Bhati and Mr. Ashok Panigrahi, counsel for the
parties, and after that it may be kept in a sealed cover.”
6. Following the Gopalpur model, the Commission submitted reports for
villages Balinga, Bankibahal, Sardega and Tiklipara. By its order dated
08.08.2012, this court approved those reports and observed that the Commission
may follow (as far as practicable) the same basis in other villages for which
compensation was yet to be fixed. The relevant part of that order is extracted as
follows:
“A further report is received from the Claims Commission, Bhubaneshwar,
under the title Recommended Composite Compensation Package for Village
Balinga, Bankibahal, Sardega and Tikilipara. We accept and approve all the
recommendations made by the Commission and request it to proceed further
on the basis of its recommendations and in light of the previous orders passed
by this Court.
We further observe that the Commission may follow as far as practicable the
same basis in other villages for the lands of which compensation ls yet to be
fixed by it. Let the report received from the Commission be kept in a sealed
cover.
Put up on receipt of further report from the Claims Commission,
Bhubaneshwar.”
7. By its order dated 10.04.2013, this court accepted and approved the
8
Commission’s reports with respect to villages Kulda and Garjan Bahal. By
another order dated 15.07.2013, this court accepted the Commission’s report for
village Karlikachhar. In that order, the court further observed that lands in two
villages namely Kirpsira and Ratansara were transferred by the Central
Government to some other companies. The court therefore requested the
Commission to proceed in respect of the two villages and directed that at the
initial stage, payment of compensation would be MCL’s liability – it could later
recover the sums from the successor companies. By its order dated 25.10.2013,
this court observed that infrastructure for resettlement was to be in terms of
Odisha Resettlement and Rehabilitation Policy, 2006 (hereinafter, “R&R Policy
2006”) and the Third Schedule to the (then) Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, 2013.
8. On 10.07.2017, this court disposed of the appeal, with the following
observations and directions:
“In pursuance of the orders of this Court, a report was submitted by Justice
Parichha which was accepted by this Court but the implementation thereof
still remained incomplete.
Learned Amicus has submitted a report dated 4 July 2017 in respect of
outstanding issues and has made recommendations as follows:-
"(i) As far as any compensation amount which is lying in fixed deposits is
concerned, the same must be accounted for at periodic intervals jointly by the
Collector as well as by a senior officer of MCL. The said amounts must be
safeguarded suitably by the Commission and the Commission would be at
liberty to seek appropriate direction from this Court as and when its work is
completed.
(ii) Issue directions to the Collector, Sundargarh as well as the Chairman and
Managing Director of MCL to ensure disbursement of compensation to all
the beneficiaries of the 8 villages (namely Balinga, Bankibahal, Garjan
Bahal, Gopalpur, Karlikachar, Kunda, Sardega and Tiklipada) on or before
31st July 2017, and to ensure disbursement of compensation to all the
beneficiaries of the 2 villages, (namely Siarmal and Bangurkela) on or before
31st November, 2017.
(iii) The Divisional Commissioner, Sambalpur, to make adequate efforts to
trace the persons who have not turned up to receive compensation. The
Collectors concerned will contact their counterparts in States where
awardees are known to migrate, and adopt suitable methodologies to identify
the concerned person.
(iv) Issue directions to the authorities of MCL to furnish a list, jointly verified
by the Collector and the Assistant Revenue Officer indicating the names of
9
the all awardees of compensation, the dates when they were entitled to
payment, the actual dates when payment was made and whether that payment
included interest, to the Claims Commission as well as the Learned Counsel
appearing on behalf of the Respondent parties.
(v) It may be clarified that even with respect two villages (namely Siarmal
and Bangurkela) , when the payment of compensation is made, interest, as
payable, will be determined to be paid in accordance with Orders of the
Hon'ble Supreme Court. Payment of interest in respect of delayed payment
will be undertaken if interest was not paid in accordance with the Orders of
the Court.
(vi) where genuine cases of fraud and impersonation are alleged by MCL, the
Claims Commission be empowered to examine such cases and forward
recommendations to the Learned Amicus.
(vii) Direct the authorities of MCL to complete the process of granting
employment, payment of monetary compensation in lieu of employment,
including annuities on or before 31st July 201 7 with respect to 8 villages
(namely Balinga, Bankibahal, Garjan Bahal, Gopalpur, Karlikachar, Kunda,
Sardega and Tiklipada) and on or before 31st November, 2017 with respect
to 2 villages (namely Siarmal and Bangurkela) .
(viii) Issue directions to the Chairman and Managing Director of MCL to
immediately stop any illegal mining being undertaken by MCL on
agricultural lands in any of the villages.
(ix) Issue directions to MCL authorities to complete the development of
resettlement colonies in the two sites (namely Barapalli II and Chatanpalli)
on or before 30th September, 2017.
(x) Once even one of the rehabilitation sites is ready and the site has been
certified as suitable for shifting by the Claims Commission, the Hon'ble
Claims Commission may pay pass appropriate orders enabling the shifting of
those persons who are entitled to R&R Benefits in the said site.
In view of the above, it is submitted that the following general directions are
also necessary -
(xi) That the Managing Director of MCL either himself or by a designated
officer will be personally responsible for the implementation of the directions
of the Supreme Court and the orders by the Commission.
(xii) Suitable steps will be taken by the MCL to complete the process of
disbursement of compensation.
(xiii) Compensation will be disbursed to the satisfaction of the Commission.
(xiv) Employment must be offered to all those left out (Categories I & II in
any employment must be offered and completed to the satisfaction of the
Commission.
(xv) Rehabilitation steps must be completed within a period of nine months
from today.
(xvi) Only upon the rehabilitation being certified by the Commission and
experts that a notice can be issued by the Commission asking the oustees to
shift to alternate sites.
(xvii) Fresh notices be issued by the Commission in respect of awardees who
have not received monies
(xviii) In respect of awardees who have not been paid money in time, interest
is payable and such interest be awarded at a rate not exceeding 15% by the
Commission calculating the same with reference to the orders of this Hon'ble
10
Court.
(xix) It awardees disbursed and MCL, is also necessary that including the
names a list of all the and the amounts by the Collector to the Claims to them,
jointly signed must be made available Commission as well as counsel for the
oustees forthwith,
(xx) In so far as acquisition of additional land for resettlement and
rehabilitation is concerned, suitable assistance will be offered by the State
authorities including the Divisional Commissioner Sambalpur."
We are broadly in agreement with the recommendations made by the learned
Amicus. We, however, leave it open to the appellants or any other affected
parties to put forward their objections before the High Court/Commission
since we are inclined to leave such matters to be dealt with by the High
Court/Commission.
With regard to recommendation XIV, learned counsel for the appellants has
an objection on the ground that the issue is covered by the Orissa
Rehabilitation and Resettlement Policy 2006.
Learned Amicus states that the recommendation is consistent with the report
of Parichha Commission which has already been accepted by this Court. This
aspect of the matter may be gone into by the High Court, if necessary.
One of the issues which is surviving is as regards constructed housing on the
land allocated for rehabilitation and resettlement by the affected persons. Mr.
Dhankar, learned senior counsel appearing for the appellants states that it is
not clear whether all such persons want constructed housing or not. A notice
will therefore be put in the Office of the District Collector seeking objection
to such construction. Those who do not expressly indicate their option to go
for housing other than the constructed housing offered by the appellant, such
option to be indicated within one week of the notice, they will be presumed to
be willing to opt for the allotment of such housing constructed by appellant.
We do accept that necessary basic health amenities as already directed by
this Court will be duly provided at the site.
Subject to the above, it will be open for the High Court/Commission, keeping
in mind the report of the Parichha Commission which has already been
accepted, to consider issuing any further directions…”
9. By order dated 13.10.2020, this court had directed MCL to share all the
status reports and relevant documents available with it, digitally, with all parties.
Apart from that, the court recorded that as observed by the previous order dated
02.09.2020, a sum of ₹566,31,46,942.78 was deposited with the concerned
authority. Mr Atmaram Nadkarni, learned Additional Solicitor General of India,
submitted that MCL was willing to offer employment in admitted cases to the
persons mentioned in the reports for the relevant villages. Details were furnished
to the court. In addition, Mr Prashant Bhushan, learned counsel for landowners
11
had urged that for villages Tumulia, Jhupuranga, Ratansara, and Kirpsara, no
award was declared before 01.01.2014, i.e., the date on which the Right To Fair
Compensation And Transparency In Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (hereinafter, “R&R Act, 2013”) came into force. Reliance
was also placed upon Section 24 of that Act as well as this court’s decision passed
by the Constitution Bench in Indore Development Authority v. Manohar Lal &
Ors.,
3
to urge that provisions of the 2013 Act relating to determination of
compensation must therefore apply. It was also urged that a tabular chart
furnished by the District Collector, Sundargarh, indicated that at least in respect
of six sites in different villages, no certificate of completion had been issued by
the competent authority, and with respect to two other sites, resettlement and
rehabilitation work was still at a primary stage.
10. Several applications were moved: some by MCL, and many more by the
landowners, seeking a range of directions. In addition, some contempt
proceedings were also initiated, submitting that the directions of this court were
not complied with altogether, or not implemented appropriately. All these
applications were heard by this court. This judgment will thus dispose of all those
applications and contempt petitions.
11. During the course of the hearings, counsels for the parties addressed
submissions on the following issues:
i. Point no. 1: The date or dates on which compensation became reckonable
(also referred to as the ‘cut-off date’);
ii. Point no. 2: Applicability of the R&R Act, 2013;
iii. Point no. 3, 4 and 5: Whether the R&R Policy 2006 applied, or the
subsequent policy of 2013; If the latter policy (of 2013) applied, then for
the purpose of employment benefits, whether the family unit was deemed
to be represented by a singular member, or several of them; and whether
3
Indore Development Authority (LAPSE-5 J.) v. Manoharlal, (2020) 8 SCC 129.
12
the Commission could re-open determinations based on change of policies
of the State, after its report was accepted by this court;
iv. Point no. 6: Entitlement to housing plots; and
v. Point no. 7: Creation of facilities and amenities, such as schools,
community centres, medical facilities, etc.
B. Analysis
12. Prior to delving into a point-by-point analysis, it is instrumental to allude
to the case of State of M.P. v. Narmada Bachao Andolan,
4 which highlighted the
essence of rehabilitation through the lens of Article 21 of the Constitution:
“Land acquisition and rehabilitation : Article 21
26. It is desirable for the authority concerned to ensure that as far as
practicable persons who had been living and carrying on business or other
activity on the land acquired, if they so desire, and are willing to purchase
and comply with any requirement of the authority or the local body, be given
a piece of land on the terms settled with due regard to the price at which the
land has been acquired from them. However, the State Government cannot be
compelled to provide alternate accommodation to the oustees and it is for the
authority concerned to consider the desirability and feasibility of providing
alternative land considering the facts and circumstances of each case.
27. In certain cases, the oustees are entitled to rehabilitation. Rehabilitation
is meant only for those persons who have been rendered destitute because of
a loss of residence or livelihood as a consequence of land acquisition. The
authorities must explore the avenues of rehabilitation by way of employment,
housing, investment opportunities, and identification of alternative lands.
“10. … A blinkered vision of development, complete apathy towards
those who are highly adversely affected by the development process and
a cynical unconcern for the enforcement of the laws lead to a situation
where the rights and benefits promised and guaranteed under the
Constitution hardly ever reach the most marginalised citizens.”
(Mahanadi Coalfields Ltd. case [Mahanadi Coalfields Ltd. v. Mathias
Oram, (2010) 11 SCC 269 : (2010) 4 SCC (Civ) 450 : JT (2010) 7 SC
352] , SCC p. 273, para 10)
For people whose lives and livelihoods are intrinsically connected to
the land, the economic and cultural shift to a market economy can be
traumatic. (Vide State of U.P. v. Pista Devi [(1986) 4 SCC 251 : AIR
1986 SC 2025] , Narpat Singh v. Jaipur Development
Authority [(2002) 4 SCC 666 : AIR 2002 SC 2036] , Land Acquisition
Officer v. Mahaboob [(2009) 14 SCC 54 : (2009) 5 SCC (Civ) 297]
, Mahanadi Coalfields Ltd. v. Mathias Oram [Mahanadi Coalfields
Ltd. v. Mathias Oram, (2010) 11 SCC 269 : (2010) 4 SCC (Civ) 450 :
4 State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639.
13
JT (2010) 7 SC 352] and Brij Mohan v. HUDA [(2011) 2 SCC 29 :
(2011) 1 SCC (Civ) 336] .) The fundamental right of the farmer to
cultivation is a part of right to livelihood. “Agricultural land is the
foundation for a sense of security and freedom from fear. Assured
possession is a lasting source for peace and prosperity.” India being a
predominantly agricultural society, there is a “strong linkage between
the land and the person's status in [the] social system”.
28. However, in case of land acquisition, “the plea of deprivation of right to
livelihood under Article 21 is unsustainable”. (Vide Chameli Singh v. State
of U.P. [(1996) 2 SCC 549 : AIR 1996 SC 1051] and Samatha v. State of
A.P. [(1997) 8 SCC 191 : AIR 1997 SC 3297] ) This Court has consistently
held that Article 300-A is not only a constitutional right but also a human
right. (Vide Lachhman Dass v. Jagat Ram [(2007) 10 SCC 448] and Amarjit
Singh v. State of Punjab [(2010) 10 SCC 43 : (2010) 4 SCC (Cri) 29] .)
However, in Jilubhai Nanbhai Khachar v. State of Gujarat [1995 Supp (1)
SCC 596 : AIR 1995 SC 142] this Court held : (SCC pp. 620 & 632, paras 30
& 58)
“30. Thus it is clear that right to property under Article 300-A is not a
basic feature or structure of the Constitution. It is only a constitutional
right. …
***
58. … The principle of unfairness of the procedure attracting Article
21 does not apply to the acquisition or deprivation of property under
Article 300-A giving effect to the directive principles.”
29. This Court in Narmada Bachao Andolan (1) [(2000) 10 SCC 664] held as
under: (SCC pp. 702-03, para 62)
“62. The displacement of the tribals and other persons would not per
se result in the violation of their fundamental or other rights. The effect
is to see that on their rehabilitation at new locations they are better off
than what they were. At the rehabilitation sites they will have more and
better amenities than those they enjoyed in their tribal hamlets. The
gradual assimilation in the mainstream of the society will lead to
betterment and progress.”
 (emphasis supplied)
30. In State of Kerala v. Peoples Union for Civil Liberties [(2009) 8 SCC 46]
, this Court held as under : (SCC p. 95, paras 102-03)
“102. Article 21 deals with right to life and liberty. Would it bring
within its umbrage a right of tribals to be rehabilitated in their own
habitat is the question?
103. If the answer is to be rendered in the affirmative, then, for no
reason whatsoever even an inch of land belonging to a member of
Scheduled Tribe can ever be acquired. Furthermore, a distinction must
be borne between a right of rehabilitation required to be provided when
the land of the members of the Scheduled Tribes are acquired vis-à-vis
14
a prohibition imposed upon the State from doing so at all.”
 (emphasis supplied)
31. Thus, from the above referred judgments, it is evident that acquisition of
land does not violate any constitutional/fundamental right of the displaced
persons. However, they are entitled to resettlement and rehabilitation as per
the policy framed for the oustees of the project concerned.”
With this context, an analysis of each of the aforementioned points is elaborated
in the following sections.
I. Cut-off date
13. Mr. Prashant Bhushan, learned counsel appearing for some landowners and
groups representing them, argued that the Commission’s report for Gopalpur was
accepted by this court, whereby the effective date for the computation of
compensation was held to be the date of notice of survey. It was submitted that
given that compensation and rehabilitation determination had been unduly
prolonged, this court ought to clarify that the date of survey of the concerned
village should be the effective date, rather than the date of survey in the case of
village Gopalpur, which was in September 2010. It was argued, that adopting this
would be consistent, in principle, as anything else would mean that the
Commission, and this court, would be applying different standards.
14. Mr. Atmaram Nadkarni, learned senior counsel appearing for MCL, urged
that the Gopalpur approach was universally adopted as the correct one by the
Commission, based on which reports for other villages were prepared, and
consequently compensation amounts determined. As a consequence, the
landowners also stood to benefit, because the date of September 2010 was a
uniform one, on the basis of which compensation and all other amounts were
determinable. It was further submitted that so far as the question of delay or
prejudice was concerned, there could be no cause for complaint, because there
was sufficient safeguard in law, by way of award of interest, for delayed payment.
It was submitted that if this court were to revisit the issue, settled matters that had
attained finality, would be opened and the process of compensation determination
15
thrown into uncertainty, which would not be to the benefit of anyone, including
the land owners.
15. The Parichha Commission, in its report relating to village Gopalpur,
explained the reasons why the date for determination of compensation and
benefits should be calculated from September 2010:
“15. In a tribal area like Sundargarh most of the people depend on
agriculture for their sustenance and generally have no other avocation. Such
people once uprooted from their land find themselves nowhere having no
savings to draw and nothing to fall back upon. Such persons, if not properly
rehabilitated and properly compensated may even face starvation. During the
process of objection hearing, we found that being deprived of their legal
rights over the lands because of acquisition notification, some tenants could
not arrange funds for undertaking treatment to ailing family members, who
were suffering from serious illness as a result some of such patients died
without getting proper treatment. Some land holders complained that their
children's marriage and education were stalled because they had no legal
right to deal with their lands. If the compensation would have been paid
within one or two years of publication· of 4(1) notification, then the land
holders could have purchased equivalent amount of land for their sustenance
as admittedly the value of lands then was much less than the present rate. It
is to be noted that delay in payment of compensation was not at all due to the
fault of the land holders but was entirely due to slackness on the part of the
Government of India and the beneficiary company, MCL. We, therefore feel
that the proper compensation for· the lands to the land holders cannot be
given unless the cut-of date is brought to the· date of notice published by the
Claims Commission for survey of the1ands as per the direction of the apex
Court. We, accordingly, recommend the cut-off date to be September, 2010
and for assessment of the compensation of the lands of Gopalpur as per the
market rate prevalent in 2010-11.”
16. The approach adopted in relation to village Gopalpur for determining
compensation amounts and fixing the cut-off date as September 2010, was
applied in relation to other villages such as Sardega, Balinga, Bankinahal,
Tiklipara, Garjanbahal, and Kulda by this court’s order dated 08.08.2012, and on
10.04.2013, the Commission’s report was endorsed and accepted. By another
order dated 15.07.2013, the court accepted the Commission’s report for village
Karlikachhar. Given these facts, this court is of the opinion that there is merit in
the contention of MCL, that compensation amounts should be determined having
regard to one single cut-off date, i.e., September 2010. Given the fact that this
16
court was alive to the plight of the landowners who had not been paid any amount
for over 22 years when the first judgment was delivered, which led to the setting
up of the Commission and the evolution of the Gopalpur model, whereby survey
was undertaken for the first time after September 2010, that date should be the
reckonable one. If one keeps in mind the fact that had the compensation
determination been based on the date of issuance of the preliminary notification,
it would have plainly resulted in injustice to the landowners. Instead, the shifting
of the date to September 2010, and the further recompense to the landowners
based on that cut-off date, inures to their benefit. The shifting of dates again
would spell uncertainty, and also lead to a real possibility of delay in the
computation of compensation and other benefits to the landowners who were
deprived of their rights. In these circumstances, the court is of the opinion that reopening the issue would lead to considerable uncertainty, because settled cases
would invariably have to be re-examined and computations made afresh. For
these foregoing reasons, the submission with respect to application of the dates
when the surveys were notified as the basis for computation of compensation in
different villages, is rejected as unfeasible.
17. The cut-off, based upon the Gopalpur report, of September 2010 merits
acceptance in regard to all 14 villages for more than one reason. The first and
foremost, is that the acquisition in the present case under the CBA Act was
notified in 1988; the final notification or declaration was made in 1990. The
nightmare faced by the land owners in respect of the internal dispute, ultimately
led to their approaching the court. Finally, this court intervened and directed the
mechanism for determination of compensation. By this method, irremediable
prejudice that would have been caused to the land owners had the original date
(1988-1990) been treated as the basis, was avoided. The net result is that the
Gopalpur report which is based upon the cut-off being September 2010, has justly
inured in favour of land owners by postponing the date for reckoning the
compensation by 22 years. Secondly, and equally important, most of the
17
compensation determination exercises were conducted between September 2010
and end of 2013. The land owners have not been able to demonstrate how the
adoption of Gopalpur cut-off would prejudice them in any manner. No sale deed
or market value or documents disclosing significant change in market value
between 2010 and 2013-14 has been disclosed. Thirdly, all land owners
regardless of whether the survey for compensation determination took place in
2011, 2012, or 2013 would in any case be entitled to interest, at statutory rates if
the Gopalpur cut-off date is accepted. This would result in statutory interest
accruing in favour of the land owners, upon the acceptance of the report, which
would be over and above the compensation determined on the basis of the market
value determined as well as the solatium. This would offset the prejudice, if any,
caused due to basing the compensation determination on the Gopalpur cut-off
dates. In terms of the State policy, a rehabilitation and resettlement development
advisory committee (hereinafter, “RPDAC”) is constituted by the State
Government and tasked with implementation of rehabilitation measures. The
rehabilitation and resettlement plan has to be prepared by the Collector after
consultation with displaced families. The resettlement site is selected by the
RPDAC, based upon the consent of the villagers, post which, an intimation is sent
to the required body (in the present case, MCL). According to MCL, this site for
resettlement has been finalised. The Collector, pursuant to an order of this court,
had filed a report on 03.11.2020. The report covers a large number of
rehabilitation and resettlement villages and also lists that in relation to 12 villages,
326 objections were received by the Collector. After verification exercises, the
Collector has reported that the list with respect to rehabilitation and resettlement
needed the approval by the Government; and the Collector had to prepare a report
in consultation with the displaced families. The RPDAC had to select the site,
gram sabhas had to be held, displacement certificates had to be issued to persons,
in addition to which they had to be provided building assistance of minimum
₹2,40,000/-.
18
18. Consequently, the date fixed in the Gopalpur report, by the Commission
(i.e., September, 2010) would be the basis for compensation determination. Apart
from compensation, the claimants would also be entitled to statutory benefits
(solatium, additional compensation, interest, etc.) in accordance with the Land
Acquisition Act, 1894.
II. Point No. 2: Applicability of the R&R Act, 2013
19. The landowners argued that since the coming into force of the R&R Act
2013, the appropriate law for determination of compensation as well as other
benefits, would be provisions of that enactment, and not the repealed Land
Acquisition Act, 1894, or the CBA Act. It was urged that since in all the cases,
where compensation had not been disbursed to the oustees on the date when
possession of the land was taken over from them, the provisions of the R&R Act
2013 would be attracted.
20. It was urged that the Commission in its reports relating to villages
Kiripsira, Jupurunga, Ratansara, and Tumulia, erroneously rejected the claim
about applicability of the R&R Act, 2013. It was argued, in this regard, that the
Commission’s reports on this aspect could not be supported, and since the
compensation determination had not been finalized, the applicable law would be
the one in force when the final decision is arrived at.
21. On behalf of MCL, it was submitted that the Commission rightly declined
to award the compensation under the R&R Act, 2013 as this court had
categorically settled the position vide its order dated 25.10.2013. The order of
this court had clarified that only the Third Schedule of the R&R Act 2013, would
be applicable, with regard to infrastructure for resettlement, etc. So far as award
of compensation was concerned, this court had already affirmed the
Commission’s approach while approving the Gopalpur report and the same would
govern all the villages under the acquisition. In case any deviation was made with
regard to award of compensation in any of the villages, it would open up a
‘Pandora’s box’ and all the claims which were settled following the Gopalpur
19
model would open up, resulting in a never-ending process. It was further
submitted that MCL, despite having paid a huge amount of over ₹2,000 crores,
had not yet received physical vacant possession of most of the land, for which
compensation was already disbursed, and rehabilitation and resettlement benefits
granted.
22. The Commission had dealt with and rejected the claim for payment of
compensation under the R&R Act 2013, observing as follows:
“8.9 Many land oustees filed Claim Cases with a prayer to provide them
compensation under the Right to Fair Compensation and Transparency in
Land Acquisition Rehabilitation and Resettlement Act, 2013. This
Commission vide order dated 19.6.2015 passed in Claim Case No.27 and vide
order dated 30.10.2018 passed in Claim Case No. 130 and order dated
08.12.2018 passed in Claim Case No.10/1 & 27 others, after hearing the
Counsel appearing in those cases and the petitioners in person, dismissed
those cases. All other cases involving similar issue were also dismissed in
terms of the above cases.”
23. Section 105 of the R&R Act 2013 reads as follows:
105. Provisions of this Act not to apply in certain cases or to apply with
certain modifications.–(1) Subject to sub-section (3), the provisions of this
Act shall not apply to the enactments relating to land acquisition specified in
the Fourth Schedule.
(2) Subject to sub-section (2) of section 106, the Central Government may, by
notification, omit or add to any of the enactments specified in the Fourth
Schedule.
(3) The Central Government shall, by notification, within one year from the
date of commencement of this Act, direct that any of the provisions of this Act
relating to the determination of compensation in accordance with the First
Schedule and rehabilitation and resettlement specified in the Second and
Third Schedules, being beneficial to the affected families, shall apply to the
cases of land acquisition under the enactments specified in the Fourth
Schedule or shall apply with such exceptions or modifications that do not
reduce the compensation or dilute the provisions of this Act relating to
compensation or rehabilitation and resettlement as may be specified in the
notification, as the case may be.
(4) A copy of every notification proposed to be issued under sub-section (3),
shall be laid in draft before each House of Parliament, while it is in session,
for a total period of thirty days which may be comprised in one session or in
two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both
Houses agree in disapproving the issue of the notification or both Houses
agree in making any modification in the notification, the notification shall not
be issued or, as the case may be, shall be issued only in such modified form
as may be agreed upon by both the Houses of Parliament.”
20
Entry 11 to the Fourth Schedule of the said Act, read as follows:
“11. The Coal Bearing Areas Acquisition and Development Act, 1957 (20 of
1957)”
24. By virtue of Section 105, read with the Fourth Schedule, therefore, the
R&R Act 2013, was not applicable to acquisitions made under the CBA Act.
However, by Section 105(2), the Central Government had issued a notification:
“Direct that any of the provisions of this Act relating to the determination of
compensation in accordance with the First Schedule and rehabilitation and
resettlement specified in the Second and Third Schedules, being beneficial to
the affected families, shall apply to the cases of land acquisition under the
enactments specified in the Fourth Schedule or shall apply with such
exceptions or modifications that do not reduce the compensation or dilute the
provisions of this Act relating to compensation or rehabilitation and
resettlement as may be specified in the notification, as the case may be.”
25. The Ministry of Coal, Central Government issued a clarification dated
04.08.2017 on the applicability of First, Second and Third Schedules of the R&R
Act, 2013 in cases of acquisition of lands under the CBA Act. The clarification
stated as under:
“1….That consequent upon the announcement of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act 2013( hereinafter 'RFCTLARR Act') and Order SO No.
2368(E). notified on 28.08.2015 by Ministry of Rural Development, Coal
India Limited and its subsidiaries have sought clarifications regarding
payment of compensation for land acquired prior to 01.09.2015 under Coal
Bearing Areas (Acquisition and Development Act. 1957(hereinafter the 'CBA
Act')
2. As multiple stages are involved in the land acquisition process, including
that of determination of compensation, this Ministry sought advice from
Ministry of Law and Justice. Ministry of Law and Justice has given their
advice that if the compensation has not been determined before 01.09.2015
under Section 13(5) of the CBA Act, then the provisions of First Schedule,
Second Schedule and Third Schedule of the RFCTLARR Act will be
applicable. In remaining cases where the compensation has already been
determined under Section 13(5) of the CBA Act before 01.09.2015, then such
cases will not be reopened.
4. In view of the above clarifications, previous order letter no. 430200/26/88-
LSWdated 12.05.1989 issued by the. Ministry of Energy, Department of Coal
shall stand modified. The above clarifications may be followed in
determination of compensation for land acquired under CBA Act.
This is issued with the approval of the competent authority.
21
s/d
R.S. Saroj
Under Secretary to the Govt. of India".
26. The above relevant facts reveal that Section 105 excluded application of
the R&R Act, 2013 to acquisitions made and eminent domain exercised, under
the enactments specified in its Fourth Schedule, such as the CBA Act. It was
under this enactment, that the acquisitions which are the subject matter of the
present proceedings, were notified in favour of MCL.
27. When the R&R Act, 2013 was brought into force with effect from
01.01.2014, the acquisitions in favour of MCL continued to be under the CBA
Act. By Section 105(3) of the R& R Act, 2013, the Central Government was
obliged to issue the notification within one year from the date of commencement
of that Act to ensure that its provisions relating to the determination of
compensation, were in accordance with the provisions in the First Schedule and
rehabilitation and resettlement in accordance with the Second and Third
Schedules of that Act. It was pursuant to this mandate, that on 28.08.2015 the
Central Government issued a notification in terms of Section 105(3). However,
the Central Government chose to exercise its power to remove difficulties, under
Section 103. This seems to be because the notification was issued on 28.08.2015–
beyond the period prescribed in Section 105(3). Nevertheless, the spirit of the
statutory injunction to make the beneficial provisions of the R&R Act, 2013
applicable to compensation determination and resettlement or rehabilitation
measures, was complied with in effect and substance.
28. MCL relied upon the order of this court dated 25.10.2013 and urged that
only the benefits of the Third Schedule could be availed by the landowners. Those
provisions relate to the obligation to provide amenities. At the same time, this
court has to be conscious of the fact that when that order was made, the R&R Act,
2013, as we know of today, was not even law – it was sought to be introduced in
22
Parliament through a Bill. The order of 25.10.2013 only expressly alludes to the
Bill. In other words, the court could not foresee the sequence in which the
provisions of the R&R Act, 2013 would be applicable. The order of this Court
nowhere indicated that whether the R&R Act - which was to be enacted, and come
into force later - was applicable to all land acquisition proceedings including
those pending consideration at various levels and before various courts, and
whether the body of the new enactment sought to exclude from its purview
acquisitions made under enactments other than the erstwhile Land Acquisition
Act, 1894, as the R&R Act, 2013 eventually did, through Section 105 and the
Fourth Schedule.
29. There can be no doubt that for the period between 01.01.2014 and
28.08.2015, ongoing acquisitions processes under enactments specified in the
Fourth Schedule - such as the CBA Act - were out of purview of the R&R Act,
2013. However, with the publication of the notification under Section 113 read
with Section 105(3) on 28.08.2015, the legal position underwent a
transformation. Acquisition processes, especially compensation determination as
well as calculation and disbursement of resettlement entitlements and
rehabilitation measures had to be in terms of the First, Second and Third
Schedules to the Act.
30. It is immediately noticeable from the provisions of the First Schedule to
the R&R Act, 2013 that compensation determination is radically different from
the pre-existing method of determination. This is because market value
determination, by virtue of Sl. No. 2 of the First Schedule, requires in the first
instance, decision on which factor is to be applied for acquisition of land in rural
areas; Sl. No. 4 outlines the method for determining value of assets; and Sl. No.
5 states that the solatium would be equal to 100% of the market value of the land
mentioned in Sl. No. 1 in respect of rural areas multiplied by the factors provided
23
in Serial No. 2. Serial Nos. 6, 7, and 8 outline the method for determining the
final award.
31. As far as rehabilitation and resettlement entitlements are concerned,
provisions of the Second Schedule apply. By Serial No. 1, if the property
displaced includes a house, the specific provision is that in case the house is “lost”
due to acquisition in rural areas, the resettlement benefit would be “a constructed
house” provided as per the Indira Awas Yojana specifications. In addition,
resettlement benefits by way of employment, or in lieu of it, a one-time payment
of ₹5 lakh and annuity policies which were to yield not less than ₹2000/- per
family per month for 20 years, plus subsistence grant for displaced families for
one year, and one time resettlement allowance of ₹50,000/-, among others, is
assured. The Third Schedule to the R&R Act, 2013 outlines the infrastructural
amenities which the State has to ensure, in the case of families and people
displaced to large scale acquisition proceedings.
32. Having regard to the provisions of the R&R Act, 2013 especially the First,
Second and Third Schedules thereof, the position taken by MCL in this Courts’
opinion cannot be countenanced. Undoubtedly the Gopalpur model of
determining compensation applied in respect of the villages for which reports
were prepared and approved by the Courts (Gopalpur, Sardega, Balinga,
Bankibahal, Tikilipara, Garjanbahal, Kulda, Karlikachhar, Siarmal, and
Bangurkela). However, in regard to four villages i.e., Tumulia, Jhupuranga,
Ratansara, and Kirpsara, no award has yet been approved. The report for Tumulia
village was prepared on 04.04.2020 and thereafter filed in court, awaiting its
approval. The report in respect of the village Jhupuranga has been placed on
record; the same is pending approval of this court.
33. This court is of the opinion that with the issuance of the notification on
28.10.2015 and the clarification by the Central Government to MCL on
04.08.2017, the question of paying or depositing compensation in terms of the
24
CBA Act cannot arise after 28.10.2015. This is because the requirement of
compensation determination under the CBA Act ceased by virtue of Section
105(3). The statutory regime under the CBA Act was superseded and substituted
with the provisions of the First Schedule to the R&R Act, 2013.
34. In the light of the above discussion, it is held that the First Schedule of the
R&R Act, 2013 is applicable to the acquisition in question, made by the Central
Government in favour of MCL, in respect of the villages, the reports of which
were not approved prior to 28.10.2015. Accordingly, the compensation based
upon the market value for the four villages i.e., Tumulia, Jhupuranga, Ratansara,
and Kirpsara have to be re-determined in accordance with the provisions of the
First Schedule to the R&R Act, 2013. Since the extent to land involved,
identification of land owners, and the basic market value along with solatium and
interest payments, have been determined, the only additional exercise which the
Commission has to carry out is the differential payable after the re-determination
in respect of all the elements i.e., the market value, solatium, and further interest.
It is also further clarified that the villages in respect of which this court has
already approved reports of the Commission, and entitlements have been
determined, even availed of, or pending implementation, i.e., the other ten
villages, the issues shall stand finalized - there can be no re-determination on the
basis of the present judgment.
III. Point Nos. 3 (whether the Orissa Rehabilitation Policy of 2006, or the
subsequent Policy of 2013 applies), 4 (whether for the purpose of
employment benefits under the 2013 Policy, the family unit is deemed to
be one, or several) and 5 (whether the Commission could re-open
determinations based on change in policies of the State, after its report
was accepted by this court)
25
35. Learned counsel for the landowners had urged that by virtue of Section 108
of the R&R Act, 2013 the affected individuals or families have the choice or
option to avail benefits of rehabilitation and resettlement either in terms of the
State law or policy or the provisions of the Act. It was submitted that for the
purposes of deciding such package and resettlement benefits, the cut-off date
should be the date on which the survey was first conducted in relation to the
concerned village. The learned counsel therefore submitted that the approach of
the Commission in confining itself to the R&R Policy 2006 and denying the later
beneficial provisions through the amendment of 2013 is untenable.
36. On behalf of MCL, it was argued that the Commission’s approach in
calculating the rehabilitation and resettlement benefits in the R&R Policy 2006 is
sound. It is submitted that the arguments on behalf of the land owners assumes
that the acquisition in the present case was made under the R&R Act, 2013. In
fact, the old Land Acquisition Act was inapplicable; what applied was the CBA
Act. Therefore, the policy which inured in favour of the land owners was
embodied in the R&R Policy 2006. That was also in force when the judgment of
this court was delivered pursuant to which Gopalpur report was approved.
Besides, the subsequent reports have also gone by the 2006 policy. In these
circumstances, there is no question to say that the 2013 policy would apply, with
the reopening of past cases resulting in chaos and uncertainty. It would prolong
the process of determining the rehabilitation and resettlement benefits and also
ensuring that they are received by the beneficiaries. Furthermore, adopting the
2013 amendment would result in applying two sets of norms for the purpose of
one acquisition.
37. Section 108 of the R&R Act, 2013 reads as follows:
“108. Option to affected families to avail better compensation and
rehabilitation and resettlement.-(1) Where a State law or a policy framed by
the Government of a State provides for a higher compensation than
calculated this Act for the acquisition of land, the affected persons or his
family or member of his family may at their option opt to avail such higher
26
compensation and rehabilitation and resettlement under such State law or
such policy of the State.
(2) Where a State law or a policy framed by the Government of a State offers
more beneficial rehabilitation and resettlement provisions under that Act or
policy than under this Act, the affected persons or his family or member of his
family may at his option opt to avail such rehabilitation and resettlement
provisions under such State law or such policy of the State instead of under
this Act.”
38. It is also pertinent to notice the relevant provisions of the R&R
Policy 2006. By clause 2(b), the term “compensation” means the sum as
in the erstwhile Land Acquisition Act, 1894. By Section 2(c), the cut-off
date for the purpose of compensation is the date on which notification
declaring the intention to acquire land under the relevant law or provision
of the rehabilitation policy is published. A note to clause 2(c) states that
the eligibility for resettlement and rehabilitation benefits would be through
a list of displaced families, and that the list would be updated on the first
January in the year in which the physical displacement is to take place.
The term “family”, which is crucial in the present case, has been defined
by the 2006 policy as follows:
“(f) Family means the person and his or her spouse, minor sons, unmarried
daughters, minor brothers or unmarried sisters, father, mother and other
members residing with him or her and dependent on him or her for his/her
livelihoods.
Note: Each of the following categories will be treated as a separate family
for the purpose of extending rehabilitation benefits under this policy.
(i) A major son irrespective of his marital status.
(ii) Unmarried daughter/sister more than 30 years of age.
(iii) Physically and mentally challenged person irrespective of age and
sex; (duly certified by the authorized Medical Board). For this
purpose, the blind/the deaf/the orthopedically handicapped/mentally
challenged person suffering from more than 40% permanent disability
will only be considered as separate family.
(iv) Minor orphan, who has lost both his/her parents.
(v) A widow or a woman divorcee.”
39. By clause 4 of the policy, survey and identification of displaced persons
are to take place. By clause 7(ii), physical displacement cannot be made before
the completion of resettlement work; by clause 7(v), provisions relating to
27
rehabilitation are to be given effect from the date of actual vacation of the land.
Clause 8 outlines rehabilitation assistance. Where displacement is on account of
Type B(II), i.e., mining project which results in displacement of land owners, the
benefits of rehabilitation and resettlement are as follows:
“II. Type B: Mining Projects
(a) Employment: Displaced and other affected families shall be eligible for
employment, by the project causing displacement. For the purpose of
employment, each family will nominate one member of the family.
The project proponent will give preference to the nominated members of the
displaced and other affected families in the matter of employment. The order
of preference will be as follows:
(1) Displaced families losing all land including homestead land,
(ii) Displaced families losing more than 2/3rd of agricultural land and
homestead land,
(iii) Families losing all agricultural land but not homestead land,
(iv) Displaced families losing more than 1/3rd of agricultural land and
homestead land,
(v) Displaced families losing only homestead land but not agricultural land,
(vi) Families losing agricultural land in part but not homestead land.
The Project authority will make special efforts to facilitate skill up-gradation
of the nominated member of the displaced family to make him/her employable
in their project.
1. In case of nominees of displaced families eligible for employment
otherwise; the upper age limit shall be relaxed by five years.
2. Project authorities should notify their employment capacity sufficiently in
advance.
3. As far as practicable, the objective shall be to provide one member from
each displaced/other family as mentioned above with employment in the
project. However, where the same cannot be provided because of reason to
be explained in writing, cash compensation as mentioned below shall be
provided to such families. Families, who do not opt for employment/selfemployment as mentioned in sub para (a) above and (b) below, shall be
provided by the Project authority with one time cash assistance in lieu of
employment at the scale indicated below:
SI. No. Families under category as per sub-para (a)
above
Amount of one
time cash
assistance (₹
in lakhs)
28
(i) Displaced Families coming under category (i) 5.00
(ii) Displaced Families coming under category (ii) 3.00
(iii) Families coming under category (iii) 2.00
(iv) Families coming under category (iv), (v) and
(vi)
1.00
(b) Training for Self-employment Project authority under the guidance of the
Collector concerned will make adequate arrangement to provide vocational
training to at least one member of each displaced/other family so as to equip
him/her to start his/her own small enterprise and refine his/her skills to
take advantage of new job opportunities. For those engaged in traditional
occupations/handicrafts/handlooms, suitable training shall be organized at
the cost of project authority to upgrade their existing skills.
(c) Convertible Preference Share: At the option of the displaced family the
project authority may issue convertible preference share upto a maximum of
50% out of the one-time cash assistance as mentioned in sub para (a) above.
(d) Provision for homestead land: Subject to availability, each displaced
family will be given at least 1/10th of an acre of land free of cost in a
resettlement habitat for homestead purpose.
(e) Assistance for Self-relocation: Each of the displaced family who opts for
self-relocation elsewhere other than the Resettlement habitat shall be given a
one time cash grant of Rs.50,000/- in lieu of homestead land.
(1) House Building Assistance: Besides, Project authority shall construct
house for each displaced families in the resettlement habitat or provide house
building assistance of Rs.1,50,000/- to each of the displaced family settling in
the Resettlement habitat or opting for self relocation elsewhere.
(g) Shops and Service Units: Project authorities will also construct shops
and service units at feasible locations at their own cost, which will be allotted
in consultation with Collector to project displaced families opting for selfemployment. While allotting such units, preference will be given to physically
challenged persons and members of displaced SC & ST families.”
40. On 05.08.2013, the State of Orissa, through a notification published in the
Official Gazette, published the amendments to the R&R Policy 2006. The
amendment essentially dealt with change in clause 2(f) with respect to the
definition of “family”. The amendments made are extracted below:
“AMENDMENTS
1. In the Orissa Resettlement and Rehabilitation Policy, 2006 (hereinafter
referred to as the said policy), for the word “Orissa” appearing wherever in
29
the said policy, the word “Odisha” shall be substituted and this substitution
shall be deemed to have come into force on the 1st day of November, 2011.
2. In sub-clause (i) under clause (f) of Para 2, for the words “A major son
irrespective of his marital status”, the words “A major son/grandson
irrespective of his marital status” shall be substituted.
3. In sub-clause (ii) under clause (f) of Para 2, for the words “Unmarried
daughter/sister more than 30 years of age”, the words “Major unmarried
daughter/Major unmarried granddaughter/Major unmarried sister” shall be
substituted.
4. Amendment to Para 2(f)(i) is made to clarify and restate the provision
of the said policy. Therefore, it shall take retrospective effect from the date of
commencement of the said Policy, i.e. 15th May, 2006.
5. Amendment to Para 2(f)(ii) shall take effect from the date of issue of
this Government Resolution.”
41. The difference between the R&R Policy 2006 and the policy as amended
in 2013, essentially, is with respect to definition of “family”. The 2006 policy has
remained unchanged with respect to other resettlement/rehabilitation benefits.
The benefits may broadly be outlined in the following terms:
(i) Employment; cash in lieu of employment – employment to at least one
member of displaced family or in lieu of this, cash in terms of clause 3;
(ii) Provision for homestead land (subject to availability) entitles each
displaced family at least 1/10th of an acre of land in a resettlement
habitat. One time cash grant of ₹50,000/- for those opting for selflocation elsewhere in lieu of homestead land;
(iii) House building assistance of up to ₹1,50,000 to each displaced family,
settling in the resettlement habitat or opting for relocation elsewhere.
Shops and service units to be constructed by the project authorities
which are to be allotted in consultation with the Collector to displaced
family opting for self-employment. These were subject to preference to
physically challenged persons and members of the displaced SC/ST
families.
30
42. By the provisions of the Second Schedule to the R&R Act, 2013 all
displaced families losing a house in a rural area are entitled to a constructed house
in terms of the Indira Awas Yojana specifications. This benefit can also be
enjoyed by those who do not have a house but were residing in the area for three
years prior to acquisition. In case a family in an urban area opts not to take the
house offered, it will be entitled to one time compensation for house construction
which will not be less than ₹1,50,000/-. At the same time, if any affected family
in rural area so prefers, the equivalent cost of house may be offered in lieu of the
constructed house. The second benefit is that if jobs are created through the
project which benefits from acquisition, the concerned entity should provide
suitable training and skill development in the required field and make provision
for employment at a rate not lower than the minimum wages to at least one
member of the affected family or arrange for a job in any other project. In lieu of
this benefit, a one-time benefit of ₹5 lakhs per family is to be made or annuity
policies which would be not less than ₹2,000/- per month per family for 20 years
with appropriate indexation in consumer price index for agricultural labourers has
to be made. Furthermore, subsistence allowance for displaced families for a
comparative one-year equivalent of ₹3000/- per month is to be provided.
Additional transportation cost for shifting and one time resettlement allowance of
₹50,000/- is payable.
43. The provisions of the R&R Act, 2013 which replaced the old Land
Acquisition Act, 1894 have for the first time cast obligations upon the State to
ensure that resettlement and rehabilitation is provided in addition to
compensation. These rehabilitation and resettlement provisions relate not only to
a right to employment for at least one member of the displaced family but also
other monetary and tangible benefits, such as land for construction of houses,
cash assistance for construction; transportation cost; provision for temporary
displacement; annuity and/or cash payment in lieu of employment benefits, etc.
31
Furthermore, by provisions of the Third Schedule, elaborate provisions for the
kind of public amenities which have to be provided, such as public health
benefits, schools, community centres, roads and other basic necessities, have been
obligated. All these are in furtherance of the displaced and the larger social justice
obligations cast upon the State.
44. The R&R Act, 2013 by Section 108 also clearly envisions that the benefits
provided by the new law are not to be applied blindly. Wherever there are existing
provisions that are more beneficial or provide better benefits to displaced persons,
such families and individuals have the choice or option to prefer either such
policy or local law or the provisions of the R&R Act. If one goes by the principle
underlying Section 108, clearly the benefits spelt out under the R&R Policy 2006,
appear to be better, and more elaborate.
45. As noticed earlier, the difference between the Orissa Resettlement and
Rehabilitation Policy, 2006, and the amendment in 2013, is with respect to the
definition of “family”. The 2006 policy inter alia, defines family as the “person
and his or her spouse, minor sons, unmarried daughters, minor brothers or
unmarried sisters, father, mother and other members residing with him or her
and dependent on him or her for his/her livelihoods.” The note to clause 2 (f)
states that, “Each of the following categories will be treated as a separate family
for the purpose of extending rehabilitation benefits under this policy.” It also
enumerates a major son and an unmarried daughter/sister of more than 30 years,
as “a separate family for the purpose of extending rehabilitation.”
46. The amendment to the policy, made on 05.08.2013, is that instead of a
major son, the expression “A major son/grandson irrespective of his marital
status” was substituted. Similarly, the term “Unmarried daughter/sister more
than 30 years of age”, was substituted with “Major unmarried daughter/Major
unmarried granddaughter/Major unmarried sister”.
32
47. The rival arguments in regard to these amendments were that on the one
hand, the landowners urged that grandsons, apart from the original beneficiaries,
were entitled to employment benefits, as were unmarried daughters, who were
more than 30 years. On the other hand, MCL urged that the basic idea of
rehabilitation being granting employment to one member of the displaced or
affected family, the construction to be given to the policy should be in harmony
with that intent, and not result in an employment bonanza, thus placing undue
burdens on the MCL.
48. A proper and purposive interpretation of the policy – with respect to
employment benefits and entitlements can be gathered, not only by taking note
of the definition of “family” but also the operative portion, which confers
benefits. The same is as follows:
“II. Type B: Mining Projects
(a) Employment: Displaced and other affected families shall be eligible for
employment, by the project causing displacement. For the purpose of
employment, each family will nominate one member of the family.”
49. If one considers what the policy seeks to achieve, it is apparent, that one
member of a displaced family has to nominate the individual who can receive
employment benefit. In this context, it is crucial to notice that the benefit is to be
given, in the first instance to the “person”. The note extends the area of coverage
by stating that a major son would be treated as belonging to a separate family.
The reason for this apparently is that the senior most member of the family might
not always be in a position to take up employment: either on account of age, or
infirmity, or the number of years of service left. Therefore, to ensure that
employment benefits are not denied due to such limitations, the definition of
family has been intentionally expanded, to include a major son, who would be
eligible to employment, and, in case his father or mother cannot be employed, or
can be employed only for a short duration. The inclusion of a grandson, is to be
33
seen in that context. The addition of the category of “grandson” along with a
major son, to read “A major son/grandson irrespective of his marital status” leads
one to the same conclusion. Thus, with the amendment of 2013, the basic
entitlement of the person affected, and his major son (who is to be treated as a
separate family) cannot be denied. The inclusion of a grandson, not as a separate
category, but along with the major son, is to ensure that if, for some reason, the
son is un-employable, or in turn is aged, or infirm, then, the major grandson would
be employed, in his stead. In other words, the proper interpretation of this
condition is that the father would be entitled to employment; in case a major son
exists, then that major son would too. However, if there are more than one major
sons, one among them would be entitled to the benefit, not all. Likewise, failing
a major son, i.e., where no major son exists, in that eventuality one major
grandson would be eligible for employment. This interpretation is fortified by the
fact that an unmarried daughter is treated as a separate unit; earlier, the basic
eligibility was subject to attaining 30 years. Now, the age restriction has been
done away with. Furthermore, to hold that the individual, one of his major sons,
and one major son, would all be eligible, together, to claim employment is not the
plain intendment. The structure of the definition and the clause dealing with
employment clearly shows that two members of the family: i.e., the father and
the son are eligible. In addition, an unmarried daughter too, would be treated as a
separate unit.
50. It is therefore held that R&R Policy 2006, as amended in 2013, being more
beneficial, would be applicable, subject to the above interpretation. At the same
time, it is clarified that in cases where anyone has accepted employment, the issue
cannot be re-opened – it shall be treated as final and binding. It is also clarified
that in the event anyone among the displaced families is not interested in
employment, and states so expressly, the alternative of one-time monetary
payment, in terms of clause 3 of the 2006 policy, would be provided.
34
51. Therefore, in the light of the above discussion, it is held that though the
R&R Policy 2006 as amended in 2013 is applicable, the question of the father,
the son and grandson, being eligible for employment benefit, concurrently, does
not arise. Either one major son, or, in his absence, or unwillingness, a major
grandson, would be eligible. This is apart from the entitlement of unmarried
daughters: in their case, the aforementioned note to the definition had treated such
daughters as a separate family; the amendment has only removed the age
threshold.
52. As a result of the above reasoning, it is held, in relation to Point No. 3, 4
and 5 that the R&R Policy 2006, as amended in 2013 would apply. A displaced
family has to be determined in the light of the definition, which includes the
individual, and one major son, and an unmarried daughter. It is when, for some
reason, the son cannot be offered or given employment, then one major grandson
would be eligible for consideration. This court also holds that cases which have
attained finality cannot be re-opened on the basis of this interpretation. The
interpretation would inure in respect of cases where the reports have not been
approved i.e., villages Tumulia, Jhupuranga, Ratansara, and Kirpsara.
53. During hearings, the learned ASG had submitted that MCL was willing to
provide a one-time compensation amount in lieu of employment, of ₹16 lakhs, as
an alternative to the 2006 policy. It is therefore directed that whichever option
(R&R Policy 2006 or this one-time compensation offer from MCL) is better, is
to be provided. The concerned Collector is to ensure the same.
IV. Point No. 6: Entitlement to housing plots
54. MCL has provided details and particulars with respect to village-wise
resettlement benefits in terms of resettlement plots. According to these
particulars, of the 3034 total displaced families, resettlement benefits in plots
were sanctioned in favour of 1420 families of which such benefits were provided
to 1177 families. 1614 families are yet to be sanctioned these resettlement
35
benefits/plots. The chart, which according to MCL reflects the picture as of
October 2021, is extracted below:
VILLAGE WISE RESETTLEMENT BENEFITS (Up to October 2021)
Village Total displaced
families
Resettlement
benefits/plot
sanctioned
Resettlement
benefits/plot
provided
Balance to be
sanctioned
Tikilipara 406 212 181 194
Sardega 179 174 152 5
Balinga 280 249 240 31
Bankibahal 135 120 118 15
Gopalpur 1031 336 258 695
Garjanbahal 350 211 141 139
Kulda 86 61 56 25
Karlikachhar 153 12 6 141
Siarmal 188 36 22 152
Bangurkela 226 9 3 217
Total 3034 1420 1177 1614
55. The status of resettlement sites as of October 2021, according to MCL, is
as follows:
Sl.
No
Name of the
resettlement
site
Area (in
Acres)
Approx
plot
developed
Plot
allotted
status
of site
Villagers to be
resettled
Remarks
1 Basundhara
Nagar
73.62 256 256 Tikilipara-132,
Sardega-124
Already resettled
2 Barpali-I 15.94 72 68 Bankibahal Already resettled
3 Barpali-II 15.00 75 70 Garjanbahal Almost all the
activities have been
completed, the water
supply to the R&R site
has already been
arranged. The site is
fully ready for shifting
the villagers of
Garjanbahal.
4 Chhatenpali 61.95 315 158 Kulda-12,
Siarmal-146
Chhatenpalli R&R site
where the
infrastructure facility
for pocket-A is fully
ready except power
supply, this is likely to
be established shortly.
5 Badkhalia 55.44 275 0 Karlikachar,
Bangurkela
Temporary road
construction for
36
approaching the site
has been completed.
Proposal for
development various
activities of the site for
an amount of Rs.27.00
crores proposal
approved and e-tender
has been invited on
Dt:31.07.2020.
Tender opened on
Dt:29.08.2020 and
Work order has been
issued on
Dt:24.11.2020.
6 Sarangijharia 88.00 440 0 Gopalpur 22 nos. of proposal
regarding
development of R&R
site Sarangijharia has
been processed and
sent MCL HQ for
approval.
56. During the hearing, MCL argued that there was reluctance on part of the
villagers regarding resettlement sites which has created problems for it. It was
therefore, urged that the concerned collector should in a time bound manner
finalise the sites after which MCL should also be given time-bound directions to
develop them. In the alternative, it was urged that instead of long drawn out
rehabilitation/resettlement process, which envisions involvement of multiple
authorities, the court may consider it appropriate and award one-time lumpsum
amount in lieu of plots – further wherever plots have been earmarked, allotted,
and in the process of development and allotment, such classes should not be
disturbed. It was urged in this regard that in the sites which are ready for
relocation, and shifting, in terms of the order of the Claim Commission, House
Building Advance has been enhanced from ₹2,24,000/- to ₹14,50,000/-.
57. On behalf of the land owners, it was urged that the R&R policy of the State
envisions that ordinarily a plot has to be provided to those who were displaced.
There is no doubt that the State authorities have delayed the process unduly. It
37
was further submitted that given that most of the displaced families belong to the
poorest sections of the society and are from the Scheduled Tribes communities,
it would not be appropriate to award cash compensation, but instead the State
authorities should ensure that resettlement plots are given.
58. The resettlement benefits in terms of the State’s policies include
development of plots and allotment to displaced families, which is “subject to
availability”. One time assistance for relocation @ ₹50,000/-; house building
allowance of ₹1,50,000 has concededly been increased to ₹14,50,000. The figures
shown by MCL as well as the materials placed on record in the form of objections
by the land owners disclose that the progress of development of lands in the sites
earmarked have been dismal, to put it mildly. MCL cannot escape the share of
the blame in this regard.
59. Under the R&R Act, 2013 the State and MCL are under an obligation to
ensure that rehabilitation and resettlement plans are prepared in consultation with
the displaced owners. The State policy is also in accordance with the Act in that
regard. In the present case, according to the materials, MCL asserts that
resettlement plots have been provided to 1177 displaced families and that 1614
families remain to be given that benefit.
60. Having regard to the fact that the judgment of this court was delivered in
2010 after which compensation determination and reports of the committee were
prepared and submitted to this court mostly between 2010 and 2013, and further
having regard to the fact that two other reports are pending consideration of this
court, it would, in the fitness of things, be appropriate that such of the resettlement
plots which have been acquired, should be developed in consultation with the
Collector. The Collector will hold hearings, after giving due publicity to the land
owners, indicating the place and providing adequate time for all land owners and
stakeholders to be present. Having considered the views of the land owners, the
Collector will, with the involvement of three nodal officers to be specially
38
assigned with the task of implementation of the resettlement policy, by coordinating with all State agencies, finalise and approve the plots. This process
should be completed within nine months of judgment of this court. The Court is
also of the opinion that the development of such plots should not exceed 15
months in all.
61. In case the number of plots is inadequate, the Collector concerned shall
secure the options in the first instance from displaced families, whether they
would like to be allotted a plot or take lumpsum compensation in lieu thereof.
Having secured these options, in case the number of land owners exceeds the
number of plots, the Collector shall ensure that the resettlement plots are allotted
after a draw of lots is held. As far as the land owners who cannot secure a plot are
concerned, this court is of the opinion that lumpsum compensation to the extent
of ₹25 lakhs should be paid to them.
62. This court is constrained to adopt the procedure indicated above, having
regard to the fact that the process of compensation determination, identification
of resettlement sites and development has taken inordinately long – during which
the displaced families must have undergone multiple changes by births and death.
It would therefore, be appropriate and in the interests of justice, that at some stage,
the entire rehabilitation and resettlement process is brought to an end and the land
owners are provided resettlement and rehabilitation by way of cash benefits,
whenever it is not possible to provide plots.
V. Point No.7: Creation of facilities and amenities such as schools,
community centres, medical facilities etc.
63. The Orissa Resettlement and Rehabilitation Policy does not indicate
specific provisions with respect to facilities and amenities that are to be
developed. Consequently, the provisions of the Third Schedule to the R&R Act,
39
2013 which outlines 25 heads and indicate amenities such as roads in the villages,
appropriate drainage, provision for safe drinking water for each family, provision
for drinking water for cattle, grazing land, reasonable number of fair price shops,
community or panchayat ghars; village level post offices, seed-cum-fertilizer
storage facilities, provision for basic irrigation facilities, transportation to the
newly resided areas, burial or cremation grounds, facilities for sanitation,
including individual toilet points, individual single electricity connections,
anganwadi, providing child nutritional services, school, sub-health centres within
two kilometre range, Primary Health Centres in terms of the Central Government
norms, play grounds for children, one community centre for every 100 families,
places of worship, separate land for traditional tribal institutions, etc. In addition,
forest dweller families must be provided with their forest on non-timber produce
close to the new places of resettlement. Furthermore, appropriate security
arrangements are to be provided and service centre in accordance with the
prescribed norms also has to be provided.
64. In the present case, the materials on record show that those resettlement
sites have been earmarked and are at different stages of development. The
mandate of the law – i.e., the Third Schedule to the R&R Act, 2013 is very clear
in that all the amenities to the extent they conform to the population in each of
the resettlement areas have to be provided. In these circumstances, there may be
no escaping these obligations. The State Government, through its appropriate
agencies should draw up a comprehensive plan for creation of such amenities and
ensure that they are functional so as to complete rehabilitation and resettlement
in a meaningful manner.
65. It was urged during the course of submissions on behalf of the villages
Ratansara by Ms. Kamalpreet Kaur, learned advocate, that the benefits existing
for individuals from Scheduled Tribes have to be protected. It was submitted in
this regard that Sundergarh, where the acquisition has taken place, is covered by
40
Fifth Schedule to the Constitution of India. Sections 41 and 42 of the R&R Act,
2013 read as follows:
“41. Special provisions for Scheduled Castes and Scheduled Tribes. – (1)
As far as possible, no acquisition of land shall be made in the Scheduled
Areas.
(2) Where such acquisition does take place it shall be done only as a
demonstrable last resort.
(3) In case of acquisition or alienation of any land in the Scheduled Areas,
the prior consent of the concerned Gram Sabha or the Panchayats or the
autonomous District Councils, at the appropriate level in Scheduled Areas
under the Fifth Schedule to the Constitution, as the case may be, shall be
obtained, in all cases of land acquisition in such areas, including acquisition
in case of urgency, before issue of a notification under this Act, or any other
Central Act or a State Act for the time being in force:
Provided that the consent of the Panchayats or the Autonomous
Districts Councils shall be obtained in cases where the Gram Sabha does not
exist or has not been constituted.
(4) In case of a project involving land acquisition on behalf of a Requiring
Body which involves involuntary displacement of the Scheduled Castes or the
Scheduled Tribes families, a Development Plan shall be prepared, in such
form as may be prescribed, laying down the details of procedure for settling
land rights due, but not settled and restoring titles of the Scheduled Tribes as
well as the Scheduled Castes on the alienated land by undertaking a special
drive together with land acquisition.
(5) The Development Plan shall also contain a programme for development
of alternate fuel, fodder and, non-timber forest produce resources on nonforest lands within a period of five years, sufficient to meet the requirements
of tribal communities as well as the Scheduled Castes.
(6) In case of land being acquired from members of the Scheduled Castes or
the Scheduled Tribes, at least one-third of the compensation amount due shall
be paid to the affected families initially as first instalment and the rest shall
be paid after taking over of the possession of the land.
(7) The affected families of the Scheduled Tribes shall be resettled preferably
in the same Scheduled Area in a compact block so that they can retain their
ethnic, linguistic and cultural identity.
(8) The resettlement areas predominantly inhabited by the Scheduled Castes
and the Scheduled Tribes shall get land, to such extent as may be decided by
the appropriate Government free of cost for community and social
gatherings.
41
(9) Any alienation of tribal lands or lands belonging to members of the
Scheduled Castes in disregard of the laws and regulations for the time being
in force shall be treated as null and void, and in the case of acquisition of
such lands, the rehabilitation and resettlement benefits shall be made
available to the original tribal land owners or land owners belonging to the
Scheduled Castes.
(10) The affected Scheduled Tribes, other traditional forest dwellers and the
Scheduled Castes having fishing rights in a river or pond or dam in the
affected area shall be given fishing rights in the reservoir area of the
irrigation or hydel projects.
(11) Where the affected families belonging to the Scheduled Castes and the
Scheduled Tribes are relocated outside of the district, then, they shall be paid
an additional twenty-five per cent. rehabilitation and resettlement benefits to
which they are entitled in monetary terms along with a one-time entitlement
of fifty thousand rupees.
42. Reservation and other benefits. – (1) All benefits, including the
reservation benefits available to the Scheduled Tribes and the Scheduled
Castes in the affected areas shall continue in the resettlement area.
(2) Whenever the affected families belonging to the Scheduled Tribes who are
residing in the Scheduled Areas referred to in the Fifth Schedule or the tribal
areas referred to in the Sixth Schedule to the Constitution are relocated
outside those areas, than, all the statutory safeguards, entitlements and
benefits being enjoyed by them under this Act shall be extended to the area to
which they are resettled regardless of whether the resettlement area is a
Scheduled Area referred to in the said Fifth Schedule, or a tribal area
referred to in the said Sixth Schedule, or not.
(3) Where the community rights have been settled under the provisions of the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of
Forest Rights) Act, 2006 (2 of 2007), the same shall be quantified in monetary
amount and be paid to the individual concerned who has been displaced due
to the acquisition of land in proportion with his share in such community
rights.”
66. As is evident, the R&R Act, 2013 has nuanced application and makes
special provisions to prevent hardships to members of the Scheduled Caste and
Scheduled Tribe communities. Section 41 requires review exercises to ensure that
the least possible harm befalls SC/ST members living in the areas sought to be
acquired. It also mandates that formulation of a development plan and protective
42
provisions invalidating alienation of tribal lands or lands belonging to the SC/ST
in disregard of laws and regulations as null and void. Section 42, on the other
hand ensures that all benefits, including reservation benefits available to SC/ST
in the affected area shall continue in the resettlement area. In this case, the land
owners were displaced on account of the acquisition in favour of MCL, which is
entirely involuntary. It is not in dispute that these displaced families/land owners
are residents of the Fifth Schedule Areas.
67. As far as Section 41 goes, in the opinion of this court, given that the
acquisition notification was issued in 1988 and finalised in 1990 and even the
judgment of this court indicating the methodology for compensation
determination was delivered in 2010, the question of giving extra consideration
in terms of Section 41 does not arise. However, since the resettlement of the
displaced families and their rehabilitation have been mandated by both provision
of the R&R Act, 2013 which has application to the ongoing acquisition, as well
as the R&R Policy 2006 , the obligation to ensure that the benefits of the displaced
persons are not put to grave and irreparable prejudice by denying them their status
as SC/ST, has to be ensured. This is mandated by Section 42 of the R&R Act,
2013 which directs that whenever lands of SCs/STs are acquired necessitating
their displacement, either in terms of territories or the areas they reside in, leading
to their movement to other areas - where their tribe or caste may not necessarily
be recognised as SCs/ST - the status which they enjoy but for the displacement
has to be preserved and protected. In the opinion of this court, this statutory
mandate and obligation cannot be denied by the State or agency, as a matter of
law. As a result of the above discussion, it is held that:
i. The facilities and amenities set out in the Third Schedule to the R&R
Act, 2013 have to be necessarily provided to the displaced families
involved in this case in the resettlement areas where they are located
and where they ultimately move to; and
43
ii. In this case, all members of SC/ST who are forced to move from their
lands on account of the acquisition do so involuntarily. They are
consequently entitled to the right to be treated as members of the SC/ST.
The State authorities shall ensure that members of the families who are
displaced and whose lists are maintained by the Commission as well as
MCL shall be issued with fresh SC/ST certificates.
C. Conclusions and Directions
68. Having regard to the following discussion, it is held as follows:
i. Re point no.1 - compensation for the land acquired: cut-off date for
determining compensation for land acquired is to be based upon the cutoff date approved by this court in relation to village Gopalpur, i.e.,
September 2010. At the same time, it is directed that since common cut-off
date has been accepted, all benefits flowing from it, including statutory
interest upon compensation and solatium, is determinable on the basis of
that cut-off date for the entire acquisition.
ii. Re point no. 2 – on the applicability of the R&R Act, 2013: the R&R Act
cannot apply prior to the date it was brought into force i.e., before
01.01.2014. In the present case, it applies from the date the Central
Government issued a notification bringing into force the proceedings of the
First, Second and Third Schedules to the enactment specified in the Fourth
Schedule, which in this case was the CBA Act. The date therefore, on
which the R&R Act, 2013 is applicable from, is 28.08.2015. Additionally,
the report which was finalised before that date cannot be interfered with.
The land owners and displaced families residing in the villages for which
reports were prepared earlier than 28.08.2015, would not therefore be
entitled to the benefits of the R&R Act, 2013. Hence, the benefits of the
44
R&R Act apply to displaced families and land owners of Kiripsira,
Ratansara, Jhupuranga and Tumulia.
iii. Re point no. 3, 4 and 5:
a. It is held that the R&R Policy 2006 as amended by the 2013 policy
applies for the purpose of employment benefits.
b. A family unit would comprise of head of family or father, a major
son, and an unmarried daughter having regard to the definition and
the note appended thereof. In case, for some reason, the major son
cannot be given employment, and there exists a major grandson, he
would then be eligible for consideration. In other words, two
members (father and son or father and grandson) would be eligible
for employment and not three, in addition to the unmarried daughter
who is also to be treated as separate unit.
c. This court is of the opinion that the Commission could not reopen
determinations based upon change of policies of the State given that
the benefits adjudicated by it based on factual determinations has
crystallised. In many cases, MCL has actually provided employment
to several individuals. Consequently, it is held that all cases that have
been adjudicated and were approved by this court cannot be
reopened.
iv. Re point no. 6:
a. On the point of housing plots, it is hereby declared and directed that
the State and MCL are under an obligation to ensure that the land
acquired by it in those areas which are to be developed, have to be
developed. The State Government shall ensure that at least three
nodal officers from the departments concerned are deployed for
facilitating this task of coordinating with all agencies and ensuring
that the development of the plots duly takes place to enable the
Collector to make the necessary allotments within the time
45
indicated. These nodal officials shall be duly empowered by the
state, through appropriate notifications to issue all necessary
consequential orders, for the implementation of resettlement and
rehabilitation measures. The Chief Secretary of the Orissa State
Government shall select the officers, and issue the necessary
notifications. Furthermore, the State shall ensure that these officers
are not posted out, for at least 3 years, or till the task of rehabilitation
and resettlement is completed.
b. The Collector shall ensure that the plots earmarked are duly notified
for the concerned villages and land owners by giving due publicity
and adequate notice. The views of the landowners shall be
ascertained and noted, for which purpose, adequate notice shall be
given, specifying the venue, date and time of consultation.
c. In case any individual land owner(s) are not interested for allotment
of the plots, it is open for them to state so. The Collector shall in
such event record their disclaimer expressly in writing and issue a
certificate. In that event the displaced family would be entitled to a
one-time cash settlement of ₹25 lakhs.
d. After ascertaining the number of displaced families’ entitlements,
and having regard to the availability of plots, the Collector shall
conduct a draw of lots, and if needed, more than one draw of lots,
whereby plots are allotted to the concerned displaced families. In
case, for any reason such plot or plots cannot be handed over within
two years, or are not available, the leftover families so to say would
be entitled to the one-time compensation of ₹25 lakhs with interest
@ 7% per annum, for two years.
v. Re point no. 7:
a. The State shall ensure that all facilities and amenities are developed
in accordance with the Third Schedule to the R&R Act, 2013 within
46
three years in which plots are handed over to the displaced families
or in any event within three years from the date of this judgment.
The necessary funding for this purpose shall be by MCL, in addition
to the State’s obligation to spend its resources.
b. The members of the SC/ST communities shall be entitled to the
preservation and protection of their status in view of Section 42 of
the R&R Act, 2013. Consequently, the concerned Collectors shall
ensure that appropriate caste certificates are issued in this regard,
given that land owners have been moved involuntarily and would
have to migrate to other areas.
vi.This court further directs that compensation determination in any event
shall be completed and payments made within six months from today. The
Commission shall ensure that this task is taken up as far as possible and
completed within that time frame. Consequently, the Commission shall
finalize the reports for villages Kiripsira and Ratansara. As regards the
reports of Jhupuranga, and Tumulia, the Commission shall complete the
task of redetermining compensation within three months. The State shall
ensure that compensation in respect of four villages is determined in
accordance with the R&R Act, 2013. Wherever compensation has not
actually been disbursed, the State shall do so within 6 months from
pronouncement of this judgment.
vii. MCL is under an obligation to ensure that employment benefits are granted
and extended and offers are made in accordance with the 2013 policy in all
cases where the lists of those who opted for employment has not been
finalised. It is clarified in this regard that wherever employment has been
obtained, the same shall not be reopened. Likewise, the question of
reopening entitlements for employment, based upon the interpretation of
this court shall not be reopened in case of villages where reports have been
accepted through previous orders.
47
viii. In the event any family undertakes that its members are not desirous or do
not wish to opt for employment, the State shall, through the nodal officers,
ensure that the disclaimer is voluntary, and that one-time compensation
indicated in the 2006 policy or under the R&R Act, 2013 or the one-time
offer of Rs 16 lakhs by MCL, as submitted by the learned ASG (whichever
is more beneficial), is paid to the family concerned. The Collector must
ensure the same is provided.
ix. The court hereby directs that the Commission should complete its task and
that its report should be the basis for disbursement of compensation, onetime rehabilitation package of ₹25 lakhs per family as indicated above and
employment offer within one year from today. In case of any vacancy in
the Office of Chairman of the Commission, the Chief Justice of the Orissa
High Court shall nominate a retired judge of that court. In the event of any
other vacancy, the Government of Orissa shall nominate the concerned
members. However, it is clarified that the government nominees should not
be ex-officio or part time members, and should be of the rank and status of
Additional Secretary, with experience in the Social Welfare or Revenue
Departments at senior levels.
x. It is further directed that all concerned landowners who have continued to
occupy the lands shall vacate it upon the deposit of compensation. MCL
shall be immediately granted possession of such lands. The Collector or the
concerned authority shall issue a certificate in this regard which shall
entitle them to the one-time rehabilitation payment or payment in lieu of
compensation or any other benefit under the Act, according to the choice
exercised by them in the manner indicated above.
69. It is lastly directed that any fresh dispute, on account of calculation of
compensation, disbursement of benefits etc., would be adjudicated by the High
48
Court. This court will not entertain miscellaneous application in individual cases
in this regard.
70. It is hereby recorded that the directions made in this judgment, are in the
exercise of its special powers to do justice to the parties, under Article 142 of the
Constitution, since the approach adopted in the previous orders, was to ensure
that the landowners are not put to further hardship and agony, of prolonged wait.
All matters are disposed of in terms of the above directions. There shall be no
order as to costs.
.............................................CJI
 [UDAY UMESH LALIT]
…….........................................J.
 [S. RAVINDRA BHAT]
..................................................J.
 [BELA M. TRIVEDI]
NEW DELHI,
NOVEMBER 3, 2022.

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