2022 (11) TMI 1140 - SC - Indian Laws

Justice delayed is justice denied - compensation for land acquired for coal mining - date or dates on which compensation became reckonable - applicability of the R R Act, 2013 - Whether the R R Policy 2006 applied, or the subsequent policy of 2013? - purpose of employment benefits - reopening of determinations based on change of policies of the State - Entitlement to housing plots - Creation of facilities and amenities, such as schools, community centres, medical facilities, etc. Date or dates on which compensation became reckonable - HELD THAT - 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. Applicability of the R R Act, 2013 - 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. 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? - whether the Commission could re-open determinations based on change of policies of the State, after its report was accepted by this court? - 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 - 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. Thus, 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. Entitlement to housing plots - HELD THAT - 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. This court is constrained to adopt the procedure indicated, 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. Creation of facilities and amenities, such as schools, community centres, medical facilities, etc. - HELD THAT - 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. 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. 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 - 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. Application disposed off.

Summary

Issues Involved:

1. Cut-off date for determining compensation.
2. Applicability of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (R&R Act, 2013).
3. Applicability of the Orissa Rehabilitation Policy of 2006 or the subsequent Policy of 2013.
4. Determination of family unit for employment benefits under the 2013 Policy.
5. Reopening of determinations based on change in policies after acceptance by the court.
6. Entitlement to housing plots.
7. Creation of facilities and amenities such as schools, community centres, medical facilities, etc.

Detailed Analysis:

I. Cut-off Date:

The court determined that the cut-off date for compensation should be September 2010, as initially decided for village Gopalpur. This date was universally applied to other villages, ensuring consistency and preventing reopening of settled matters. The court emphasized that reopening the issue would lead to considerable uncertainty and delays. The compensation determination based on this cut-off date includes statutory interest and solatium.

II. Applicability of the R&R Act, 2013:

The court held that the R&R Act, 2013, applies from 28.08.2015, the date of the Central Government's notification. The Act's provisions, including the First, Second, and Third Schedules, are applicable to the acquisition in question. Reports finalized before this date cannot be interfered with, but those pending approval must comply with the R&R Act, 2013. Consequently, compensation for villages Tumulia, Jhupuranga, Ratansara, and Kirpsara must be re-determined under the R&R Act, 2013.

III. Applicability of the Orissa Rehabilitation Policy of 2006 or the subsequent Policy of 2013:

The court found that the R&R Policy 2006, as amended in 2013, applies. The policy defines a family unit as the head of the family or father, a major son, and an unmarried daughter. If the major son cannot be given employment, a major grandson would be eligible. The policy does not allow for concurrent eligibility of the father, son, and grandson. The court also held that cases already adjudicated and approved by the court cannot be reopened.

IV. Determination of Family Unit for Employment Benefits:

The court clarified that the family unit for employment benefits comprises the head of the family or father, a major son, and an unmarried daughter. If the major son is ineligible, a major grandson can be considered. This interpretation ensures that only two members (father and son or grandson) are eligible for employment, apart from the unmarried daughter.

V. Reopening of Determinations Based on Change in Policies:

The court held that the Commission could not reopen determinations based on policy changes after acceptance by the court. This ensures finality and prevents prolonged litigation. Employment benefits already provided cannot be revisited.

VI. Entitlement to Housing Plots:

The court directed that resettlement plots must be developed and allotted within a specified timeframe. The Collector, with the help of nodal officers, must ensure this process is completed within nine months, and development should not exceed 15 months. If plots are inadequate, a draw of lots will determine allotment, and those left out will receive a one-time compensation of Rs. 25 lakhs.

VII. Creation of Facilities and Amenities:

The court mandated that all facilities and amenities outlined in the Third Schedule to the R&R Act, 2013, must be provided in resettlement areas. The State Government must ensure these amenities are functional within three years. SC/ST members displaced must retain their status and be issued fresh certificates.

Conclusions and Directions:

1. The cut-off date for determining compensation is September 2010.
2. The R&R Act, 2013, applies from 28.08.2015, and benefits apply to specific villages.
3. The R&R Policy 2006, as amended in 2013, applies for employment benefits.
4. A family unit for employment benefits includes the head of the family, a major son, and an unmarried daughter. A major grandson is eligible if the son is ineligible.
5. Determinations already approved cannot be reopened.
6. Resettlement plots must be developed and allotted within specified timeframes, with compensation provided if plots are inadequate.
7. All facilities and amenities must be provided in resettlement areas, and SC/ST members must retain their status.

The court exercised its special powers under Article 142 of the Constitution to ensure justice and prevent prolonged hardship for the landowners. All matters were disposed of in terms of these directions, with no order as to costs.