(C) No.541/2019 in SLP(C) No.6933/2007 CONMT.PET.
Also Read: https://newslaw.in/supreme-court/legal-analysis-of-claim-for-loss-of-profit-in-delayed-contract/
(C) No.543/2019 in SLP(C) No.6933/2007 CONMT.PET. (C) No.554/2019 in SLP(C) No.6933/2007 CONMT.PET. (C) No.561/2019 in SLP(C) No.6933/2007 CONMT.PET. (C) No.563/2019 in SLP(C) No.6933/2007 CONMT.PET. MCL was aggrieved by an order 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.
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. 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. 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. 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. It must be noted that in the case of Sardega and Tikilipara Villages, part- payment has already been made. 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.
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. 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 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. 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. 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. In this regard, the Commission may consider directing staggered payment of the amount of compensation so that the compensation money is not altogether wasted.
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. ” By its order dated 10.04.2013, this court accepted and approved the 8 Commission’s report s with respect to villages Kulda and Garjan Bahal. 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. (iv) Issue directions to the authorities of MCL to furnish a list, jointly verified by the Collector and the Assistant Revenue Officer indicating the names of 9 the all awardees of compensation, the dates when they were entitled to payment, the actual dates when payment was made and whether that payment included interest, to the Claims Commission as well as the Learned Counsel appearing on behalf of the Respondent parties.
(v) It may be clarified that even with respect two villages (namely Siarmal and Bangurkela), when the payment of compensation is made, interest, as payable, will be determined to be paid in accordance with Orders of the Hon’ble Supreme Court.
(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. (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.” Dhankar, learned senior counsel appearing for the appellants states that it is not clear whether all such persons want constructed housing or not. 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. In addition, Mr Prashant Bhushan, learned counsel for landowners 11 had urged that for villages Tumulia, Jhupuranga, Ratansara, and Kirpsara, no award was declared before 01.01.2014, i.e., the date on which the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter, “ R&R Act, 2013 ”) came into force. 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 12 the Commission could re-open determinations based on change of policies of the State, after its report was accepted by this court; iv. Prior to delving into a point-by-point analysis, it is instrumental to allude to the case of State of M.P. 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. A blinkered vision of development, complete apathy to wards 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 mar ginalised citizens.” (Mahanadi Coalfields Ltd. Mathias Oram, (2010) 11 SCC 269 : (2010) 4 SCC (Civ) 450 : 13 JT (2010) 7 SC 352] and Brij Mohan v. [(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. State of Gujarat [1995 Supp (1) SCC 596 : AIR 1995 SC 142] this Court held : (SCC pp. 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.” This Court in Narmada Bachao Andolan (1) [(2000) 10 SCC 664] held as under: (SCC pp. 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–vis 14 a prohibition imposed upon the State from doi ng so at all.” 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 submitted that if this court were to revisit the issue, settled matters that had attained finality, would be opened and the process of compensation determination 15 thrown into uncertainty, which would not be to the benefit of anyone, including the land owners. Some land holders complained that their children’s marriage and education were stalled because they had no legal right to deal with their lands. 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.
Given the fact that this 16 court was alive to the plight of the landowners who had not been paid any amount for over 22 years when the first judgment was delivered, which led to the setting up of the Commission and the evolution of the Gopalpur model, whereby survey was undertaken for the first time after September 2010, that date should be the reckonable one. 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. 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.
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). 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. 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. 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. (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. 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 resettlem as may be specified in the notification, as the case may be.” 25. 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. 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). 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. 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.
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. The report for Tumulia village was prepared on 04.04.2020 and thereafter filed in court, awaiting its approval. 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.
3 (whether the Orissa Rehabilitation Policy of 2006, or the subsequent Policy of 2013 applies), 4 (whether for the purpose of employment benefits under the 2013 Policy, the family unit is deemed to be one, or several) and 5 (whether the Commission could re-open determinations based on change in policies of the State, after its report was accepted by this court) 25 35. 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. Option to affected families to avail better compensation and rehabilitation and resettlement.-(1) Where a State law or a policy framed by the Government of a State provides for a higher compensation than calculated this Act for the acquisition of land, the affected persons or his family or member of his family may at their option opt to avail such higher 26 compensation and rehabilitation and resettlement under such State law or such policy of the State. 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. 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.
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, who do not opt for employment/self- employment as mentioned in sub para (a) above and (b) below, shall be provided by the Project authority with one time cash assistance in lieu of employment at the scale indicated below: SI. No Families under category as per sub-para (a) above Amount of one time cash assistance ( in lakhs) 28 (i) Displaced Families coming under category (i) 5.00 (ii) Displaced Families coming under category (ii) 3.00 (iii) Families coming under category (iii) 2.00 (iv) Families coming under category (iv), (v) and (vi) 1.00 (b) Training for Self-employment Project authority under the guidance of the Collector concerned will make adequate arrangement to provide vocational training to at least one member of each displaced/other family so as to equip him/her to start his/her own small enterprise and refine his/her skills to take advantage of new job opportunities. (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. 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. Amendment to Para 2(f)(ii) shall take effect from the date of issue of this Government Resolution.” The difference between the R&R Policy 2006 and the policy as amended in 2013, essentially, is with respect to definition of “family”. 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. 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. 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. The 2006 policy inter alia, defin es 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 f ollowing 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.” 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. 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. For the purpose of employment, each family will nominate one member of the family.” 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. Likewise, failing a major son, i.e., where no major son exists, in that eventuality one major grandson would be eligible for employment. 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. 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. MCL has provided details and particulars with respect to village-wise resettlement benefits in terms of resettlement 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. 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. 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.
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. Having considered the views of the land owners, the Collector will, with the involvement of three nodal officers to be specially 38 assigned with the task of implementation of the resettlement policy, by co- ordinating with all State agencies, finalise and approve the plots. 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. Consequently, the provisions of the Third Schedule to the R&R Act, 39 2013 which outlines 25 heads and indicate amenities such as roads in the villages, appropriate drainage, provision for safe drinking water for each family, provision for drinking water for cattle, grazing land, reasonable number of fair price shops, community or panchayat ghars; village level post offices, seed-cum-fertilizer storage facilities, provision for basic irrigation facilities, transportation to the newly resided areas, burial or cremation grounds, facilities for sanitation, including individual toilet points, individual single electricity connections, anganwadi, providing child nutritional services, school, sub-health centres within two kilometre range, Primary Health Centres in terms of the Central Government norms, play grounds for children, one community centre for every 100 families, places of worship, separate land for traditional tribal institutions, etc.
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. (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 alienated land by undertaking a special drive together with land acquisition. (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. (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 in the said Fifth Schedule, or a tribal area referred to in the said Sixth Schedule, or not.
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. 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. The facilities and amenities set out in the Third Schedule to the R&R Act, 2013 have to be necessarily provided to the displaced families involved in this case in the resettlement areas where they are located and where they ultimately move to; and 43 ii. Re point no.1 – compensation for the land acquired: cut-off date for determining compensation for land acquired is to be based upon the cut- off date approved by this court in relation to village Gopalpur, i.e., September 2010. 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. 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.
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 Collector shall ensure that the plots earmarked are duly notified for the concerned villages and land owners by giving due publicity and adequate notice. 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. The State shall ensure that compensation in respect of four villages is determined in accordance with the R&R Act, 2013. 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. 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.
It is lastly directed that any fresh dispute, on account of calculation of compensation, disbursement of benefits etc., would be adjudicated by the High 48 Court. CJI
[UDAY UMESH LALIT]……
Case Title: MAHANADI COAL FIELDS LTD. . Vs. MATHIAS ORAM . (2022 INSC 1158)
Case Number: MA-000231 / 2019
