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

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/ INHERENT JURISDICTION

MISCELLANEOUS APPLICATION NO. 231 OF 2019

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

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.

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

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;

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

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

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

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

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

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

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

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.,

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

Indore Development Authority (LAPSE-5 J.) v. Manoharlal, (2020) 8 SCC 129.

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.

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

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

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

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

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. 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

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.”

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.

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

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

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

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)

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

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

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)

(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.

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

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.

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.

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”.

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

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.

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

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.

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

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

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

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,

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

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.

(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

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

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

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

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

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.

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

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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