MAHANADI COAL FIELDS LTD. & ANR. versus MATHIAS ORAM & ORS. on 3 November 2022

[2022] 19 S.C.R.

AMAHANADI COAL FIELDS LTD. & ANR.

v.

MATHIAS ORAM & ORS.

(Miscellaneous Application No. 231 of 2019)

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NOVEMBER 03, 2022

[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT ANDBELA M. TRIVEDI, JJ.]

Right To Fair Compensation And Transparency In LandCAcquisition, Rehabilitation and Resettlement Act, 2013 –Applicability of – Coal Bearing Areas (Acquisition and Development)Act, 1957–Held: The R&R Act cannot apply prior to the date it wasbrought into force i.e., before 01.01.2014 – In the present case, itapplies from the date the Central Government issued a notificationbringing into force the proceedings of the First, Second and ThirdDSchedules to the enactment specified in the Fourth Schedule, whichin this case was the CBA Act – The date therefore, on which theR&R Act, 2013 is applicable from, is 28.08.2015 – Additionally, thereport which was finalised before that date cannot be interferedwith – The land owners and displaced families residing in the villagesEfor which reports were prepared earlier than 28.08.2015, wouldnot therefore be entitled to the benefits of the R&R Act, 2013 –Hence, the benefits of the R&R Act apply to displaced families andland owners of Kiripsira, Ratansara, Jhupuranga and Tumulia –Further directions issued – Land Acquisition Act, 1894 –FConstitution of India – Article 142.

Right To Fair Compensation And Transparency In LandAcquisition, Rehabilitation and Resettlement Act, 2013 –Determination of compensation – Cut-off date– Held: Cut-off datefor determining compensation for land acquired is to be based uponGthe cut-off date approved by Supreme court in relation to villageGopalpur, i.e., September 2010 – Since, common cut-off date hasbeen accepted, all benefits flowing from it, including statutoryinterest upon compensation and solatium, is determinable on thebasis of that cut-off date for the entire acquisition – Coal BearingAreas (Acquisition and Development) Act, 1957.

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Right To Fair Compensation And Transparency In LandAcquisition, Rehabilitation and Resettlement Act, 2013 – ss.41, 42– Odisha Resettlement and Rehabilitation Policy, 2006 – Held: Asfar as s.41 goes, given that the acquisition notification was issuedin 1988 and finalised in 1990 and even the judgment of SupremeCourt indicating the methodology for compensation determinationwas delivered in 2010, the question of giving extra considerationin terms of s.41 does not arise – However, since the resettlement ofthe displaced families and their rehabilitation have been mandatedby both provision of the R&R Act, 2013 which has application tothe ongoing acquisition, as well as the R&R Policy 2006, theobligation to ensure that the benefits of the displaced persons arenot put to grave and irreparable prejudice by denying them theirstatus as SC/ST, has to be ensured – This is mandated by s.42 of theR&R Act, 2013 which directs that whenever lands of SCs/STs areacquired necessitating their displacement, either in terms ofterritories or the areas they reside in, leading to their movement toother areas- where their tribe or caste may not necessarily berecognised as SCs/ST- the status which they enjoy but for thedisplacement has to be preserved and protected – This statutorymandate and obligation cannot be denied by the State or agency,as a matter of law – Direction issued.

Right To Fair Compensation And Transparency In LandAcquisition, Rehabilitation and Resettlement Act, 2013 –Obligationscast upon the State– Land Acquisition Act, 1894 – Held: Provisionsof the R&R Act, 2013 which replaced the old 1894 Act, have for thefirst time cast obligations upon the State to ensure that resettlementand rehabilitation is provided in addition to compensation – Theserehabilitation and resettlement provisions relate not only to a rightto employment for at least one member of the displaced family butalso other monetary and tangible benefits, such as land forconstruction of houses, cash assistance for construction;transportation cost; provision for temporary displacement; annuityand/or cash payment in lieu of employment benefits, etc. –Furthermore, by provisions of the Third Schedule, elaborateprovisions for the kind of public amenities which have to be provided,such as public health benefits, schools, community centres, roadsand other basic necessities, have been obligated – All these are in A

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Afurtherance of the displaced and the larger social justice obligationscast upon the State.

Right To Fair Compensation And Transparency In LandAcquisition, Rehabilitation and Resettlement Act, 2013 – s.108 –Odisha Resettlement and Rehabilitation Policy, 2006 – Held: R&RBAct, 2013 by s.108 also clearly envisions that the benefits providedby the new law are not to be applied blindly – Wherever there areexisting provisions that are more beneficial or provide better benefitsto displaced persons, such families and individuals have the choiceor option to prefer either such policy or local law or the provisionsCof the R&R Act –Going by the principle underlying s.108, clearlythe benefits spelt out under the R&R Policy 2006, appear to bebetter, and more elaborate.

Odisha Resettlement and Rehabilitation Policy, 2006 –Employment benefits –Family unit – Held: The R&R Policy 2006 asDamended by the 2013 policy applies for the purpose of employmentbenefits – A family unit would comprise of head of family or father,a major son, and an unmarried daughter having regard to thedefinition and the note appended thereof – In case, for some reason,the major son cannot be given employment, and there exists a majorEgrandson, he would then be eligible for consideration – In otherwords, two members (father and son or father and grandson) wouldbe eligible for employment and not three, in addition to the unmarrieddaughter who is also to be treated as separate unit –Further,Commission could not reopen determinations based upon changeFof policies of the State given that the benefits adjudicated by itbased on factual determinations has crystallised – In many cases,Mahanadi Coalfields Ltd.(MCL) has actually provided employmentto several individuals – Thus, all cases that have been adjudicatedand were approved by Supreme court cannot be reopened.

GMahanadi Coal Fields Ltd. & Anr v. Mathias Oram &Ors. (2010) 11 SCC 269; Indore Development Authorityv. Manohar Lal & Ors. (2020) 8 SCC 129 : 2020 (3)SCR 1; State of M.P. v. Narmada Bachao Andolan (2011)7 SCC 639 : 2011 (6) SCR 443 – referred to.

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

CIVIL APPELLATE/INHERENT JURISDICTION:Miscellaneous Application No. 231 of 2019 in Special Leave Petition(C) No. 6933 of 2007.

From the Judgment and Order dated 13.11.2006 of the High Courtof Orissa in W.P. (C) No. 11463 of 2003.

With

Conmt.pet.(C) Nos. 540, 541, 542, 543, 544, 545, 546, 547, 553,554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 685, 686, 687, 548,549, 550, 551, 552 of 2019, slp (c) nos.15877-15878 of 2020.

Jayant Sud, ASG, Atmaram N.S. Nadkarni, Sr. Adv., Anish KumarGupta, Ms. Archana Preeti Gupta, Avdhesh Kumar Singh, Nisargchaudhary, Kartikeya Vajpai, Puneet Sheoran, Ms. Deepshikha Bharati,Ms. Rita Gupta, Venugopal Abhay, Salvada Santosh Rebello, Ms. ArzuPaul, Ms. Deepti Arya, Adiraj Bali, Vaibhav Verma, Ms. Priyanka Das,Randeep Sachdeva, Manish Nadda, Abhishek Atrey, Gurmeet SinghMakker, Prashant Bhushan, Ms. Neha Rathi, Ashok Panigrahi, NababSingh, Ms. Geetanjali, Amiya Kumar Behera, Mudit Sharma, RahulShyam Bhandari, Ms. G. Priyadharshni, Ms. Simran Gill, Rajeev Yadav,Pradeep Varma, S.K. Srivastava, Gurdeep Singh, Rahat Ali Chaudhary,Syed Imtiyaz Ali, Ali Safeer Farooqui, Rajat S. Roy, Nripendra NathBain, Hira singh, Aftab Ali Khan, Ms. Kawalpreet Kaur, Shiyas KR,Satya Mitra, Soumen Talukdar, Tejaswi Kumar Pradhan, ShibashishMisra, Ms. Nandini Gidwaney, Ms. Rohini Musa, Arvind Kumar Sharma,A. Venayagam Balan, R. Chandrachud, Vishal Arun, Shankar Divate,Ravi Prakash Mehrotra, B. Ramana Murthy, Ms. Meenakshi Chauhan,Advs. for the appearing parties.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. The oft repeated aphorism, “Justice delayed is justice denied”cannot apply with more force than in these proceedings. The applicantwrit petitioners (hereinafter, “landowners / displaced persons”) havewaited for roughly half the number of years that this republic has existed.

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AThey predominantly belong to tribal communities, and their lands werefirst notified and acquired in 1988 for the purposes of coal mining. Yet,they have not been paid compensation. The tangled and torturous journeyof their tribulations has been elaborately documented in a previousjudgment of this court.[1]

BA.Background

2. Mahanadi Coalfields Ltd. (hereinafter, “MCL”) is a subsidiaryof Coal India Ltd. (hereinafter, “CIL”) the biggest coal producer in thecountry. MCL was aggrieved by an order[2] of the Orissa High Court,wherein the High Court directed the Central Government and MCL toCimmediately proceed under provisions of the Coal Bearing Areas(Acquisition and Development) Act, 1957 (hereinafter, “CBA Act”) todetermine and disburse compensation payable to landowners asexpeditiously as possible, preferably within six months.

3. The Central Government issued the preliminary notificationDunder Section 4(1) of the CBA Act on 11.02.1987, conveying its intentionto prospect for coal in village Gopalpur and others, district Sundergarh,Orissa. This was followed by another notification under Section 7(1) ofthe 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 landsEbeing vested absolutely in the Central Government. On 20.03.1993, theCentral Government issued notification under Section 11 of the CBAAct, vesting the acquired land and all rights therein in MCL, retrospectivelywith effect from 17.11.1991. The writ petitioners before the High Courtwere landowners who were not paid any compensation for their lands.FAfter unavailingly seeking the same, the landowners approached theHigh 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 nolonger required the lands, whereas the Central Government rejectedCIL’s proposal for denotification by order dated 12.09.2006. The HighGCourt held that a land oustee under Section 9 of the CBA Act was to bepaid compensation after taking into consideration the factors enumeratedunder Section 13(5) of the CBA Act. MCL preferred a special leavepetition before this court. The court sought the assistance of the then 1 Mahanadi Coal Fields Ltd. & Anr v. Mathias Oram & Ors., (2010) 11 SCC 269.H2 W.P. (Civil) No.11463/2003 (Orissa High Court), dated 13.11.2006.

Solicitor General for India, Mr Gopal Subramanium, who proposed ascheme which was accepted by this court, in its judgment reported asMahanadi Coal Fields Ltd. (supra).

4. The relevant extract of the operative portion of the judgment isreproduced as follows:

“22. The scheme proposed by Mr. Subramanium and agreedupon by the Central Government and the Coal Company isas follows:

“1. The land in Village Gopalpur, District Sundergarh, Orissastands acquired by the Central Government and ownershipis vested with MCL which will determine and pay compensationto the erstwhile landowners.

2. In respect of vast portions of the acquired land (excludingthe area where mining activities are being undertaken), actualphysical possession was never taken. The State of Orissa andits officers are directed to assist MCL in taking actual physicalpossession 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 physicalpossession needs to be reascertained, it is necessary that thegenuine landowners, amount of compensation payable, statusof possession, use to which the land has been put in the lasttwo decades, is discovered. The entire land needs to besurveyed again.

4. In accordance with the advice of the learned SolicitorGeneral, a Claims Commission needs to be set up withrepresentatives of the Central Government as well as MCL. Itis submitted that the Claims Commission will consist of 3members:

(a) A former Judge of the High Court of Orissa (Chairman); (b) An officer who has held a post/office equivalent to therank of Secretary to the Government of India;

(c) An officer to be nominated by the Chairman, Coal IndiaLtd.

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The Claims Commission will carry out the exercise referred toabove and submit a report on the compensation payable andthe persons to whom it should be paid, within a period sixmonths.

5. The abovesaid report will be submitted to the CentralGovernment, and upon formal approval by the CentralGovernment, MCL will make payment within a further periodof two months.

6. Some portions of the land have been determined to beunsuitable for the petitioner having regard to physical features(mining being impossible, area being heavily populated, etc.).The Claims Commission will examine whether possession ofsuch portions has been taken over by the petitioner. It wouldbe open to the Claims Commission to recommenddenotification/release of the said land from acquisition.

7. In view of the special facts obtaining above, the CentralGovernment may be permitted to denotify the said land fromthe acquisition as a special case, since the land is not requiredand possession also was never taken.

8. Even in the case of the denotified land, suitablecompensation, in appropriate cases, may have to be paid tothe landowners. The Claims Commission may also give a reporton this aspect of the matter.

9. The learned Solicitor General has opined that such mattersof uncertain acquisition or pending compensation claims leadto unnecessary social tensions and the petitioner must act ina spirit of good governance. Upon examination of all thesurrounding villages, in the light of the opinion of the learnedSolicitor General, for the sake of uniformity as well as fairness,the above exercise would be carried out for the followingvillages 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 TikiliparaVillages, part-payment has already been made. Further, inthe case of Bankibahal and Balinga Villages, full paymenthas already been made but possession has not been fullytaken.

10. The petitioner and the Central Government shall assist inthe establishment of the Commission including the provisionof suitable infrastructure. The honorarium payable to theCommission may be determined by this Hon’ble Court.

11. This order is being passed with the agreement of all partiesand in the peculiar facts and circumstances of this case. Thesaid order shall not operate as a precedent.”

23. The scheme proposed by Mr Subramanium was shown toMr Janaranjan Das, the counsel appearing for therespondent-writ petitioners and he also gave his expressconsent to it. We, accordingly, approve the scheme but withcertain clarifications and modifications as stated below.

24. We nominate Mr Justice A.K. Parichha, a former Judgeof 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 anofficer who has held a post/office equivalent to the rank ofSecretary to the Government of India as one of the members A

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of the Commission within two weeks from today. Similarly, theChairman, Coal India Ltd. shall nominate an officer as theother member of the Commission. Mr Justice A.K. Parichha,shall be paid honorarium equal to the monthly salary of asitting High Court Judge and he shall be entitled to all otherfacilities as available to a sitting Judge of the High Court.The officer nominated by Mr Subramanium/Secretary, Ministryof Coal, Government of India, shall similarly be entitled tohonorarium and other facilities available to a serving officerof his rank. All the expenses of the Commission shall be borneby Coal India Ltd.

25. The Commission shall prepare its report as envisaged inthe scheme, first in respect of the lands in Village Gopalpur,District Sundergarh, Orissa, as soon as possible and in anyevent not later than four months from today. In case theCommission recommends denotification/release of any portionof the lands earlier acquired, it would also determine the rate or the amount of compensation/mesne profit payable to thelandholder. The Commission shall submit its report not to theCentral Government but to this Court for approval and furtherdirections. Any denotification/release of the land would beonly subject to further orders passed by this Court in light ofthe Commission’s report. The Commission may proceed withthe survey in relation to the acquired lands in other villages,as suggested in Para 9 of the scheme only after submitting itsreport in respect of Village Gopalpur and subject to furtherorders by this Court. The officers of the State Governmentand the Coal Company shall extend full help and cooperationto the Commission in preparing the report and in the dischargeof their duties in terms of the scheme.”

5. The Claims Commission appointed by this court proceeded toissue notices and call for claims to determine all those eligible forcompensation and rehabilitation, and its extent. Based on the report inrelation to village Gopalpur, the court passed an order on 19.04.2012,approving the recommendations contained in it. The relevant extracts ofthe court’s order are as follows:

“The Amicus pointed out three broad features of the way inwhich the Commission has fixed the amounts of compensation for the lands of the villagers acquired by Mahanadi CoalFields Ltd., the petitioner Company.

First, the acquisition notifications were made way back inthe 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 withreference to the date of the acquisition notifications wouldbe wholly unfair, unjust and unreasonable and has taken thedate of notice of survey given by the Commission in September,2010, as being relevant for fixing the market value of thelands under acquisition. The Amicus supported the view takenby the Commission and, in the facts of the case, we also fullyendorse the Commission’s decision in regard to the date withreference to which the market value of the lands underacquisition is to be determined.

Secondly, in regard to fixing the rate of compensation, theAmicus submitted that the Commission had followed a veryscientific approach which was fit to be approved by this Court.We accept the method adopted by the Commission for fixingthe rate of compensation and the actual mounts ofcompensation determined for payment to the individuallandholders.

Thirdly, in regard to the. rehabilitation policy, the Commissionhas applied the rehabilitation policy of the year 2006 as it ismore liberal and beneficial for the landholders in comparisonto the earlier rehabilitation policy of the year 1998. On thisscore also, we entirely agree with the view taken by theCommission.

In short, we accept the Commission’s report in all respectsand make, it an order of this Court. At this stage, we wouldlike to draw the attention of the Commission to some otheraspects of the matter as suggested by the Amicus. The Amicusrightly submitted that setting up of schools and health centresin the villages where lands have been acquired in large areasshould also be made an obligation of the petitioner-Companyfor whose benefit the acquisitions are made.

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We are not aware whether in the 2006 rehabilitation policythere are provisions for setting up schools and health centresin the villages affected by land acquisition. In case, therehabilitation policy does not have such provisions, theCommission may consider directing Mahanadi Coal FieldsLtd. to provide for good, functional schools with sufficientnumber of teachers and well-equipped health centres in allthe villages affected by land acquisition.

We would also like to remind the Commission that the goodwork done by it so far will only be complete as and when theindividual villagers whose lands are acquired actually receivethe amount of compensation and other benefits under thecompensation and rehabilitation package. We are sure thatthe Commission would be conscious of this aspect of the matter.But, we would still like to tell it that all the good work doneby it may be dissipated unless the villagers get their lawfuldues in full and no part of compensation amount or anyelement of the compensation/rehabilitation package is allowedto be wasted or taken away from the concerned landholderby deception or fraudulent means. It will be, therefore, opento the Commission also to frame proper. policies for paymentof the compensation money and to ensure that thecompensation/rehabilitation benefits are actually received bythe landholders. In this regard, the Commission may considerdirecting staggered payment of the amount of compensationso that the compensation money is not altogether wasted.

Mr. Ashok Panigrahi submitted that some of the landholderswhose lands were also taken in acquisition were unable tosubmit their claims before the Commission as they had goneto Jharkhand for earning their livelihood. If that be so, it willbe open to them to make their representations before theCommission which shall consider those representations andpass appropriate and reasonable orders. We deeply appreciatethe painstaking work done by the Commission and request itto carry on its good work in respect of the rest of the villageswhere the lands were similarly acquired following the modelframed by it in respect of Gopalpur village.

We repeat our direction that the Governmnent of Orissa,Mahanadi Coal Fields Ltd. and the local administration shallrender full help, -assistance and cooperation in the work ofthe Commission and in implementation of the Commission’sdirections in regard to payment of compensation and therehabilitation package admissible to the concernedlandholders.

Let copies of the Part-II Report of the Commission be givento the Amicus, Gp. Captain Karan Singh Bhati and Mr. AshokPanigrahi, counsel for the parties, and after that it may bekept in a sealed cover.”

6. Following the Gopalpur model, the Commission submittedreports for villages Balinga, Bankibahal, Sardega and Tiklipara. By itsorder dated 08.08.2012, this court approved those reports and observedthat the Commission may follow (as far as practicable) the same basisin other villages for which compensation was yet to be fixed. The relevantpart of that order is extracted as follows:

“A further report is received from the Claims Commission,Bhubaneshwar, under the title Recommended CompositeCompensation Package for Village Balinga, Bankibahal,Sardega and Tikilipara. We accept and approve all therecommendations made by the Commission and request it toproceed further on the basis of its recommendations and inlight of the previous orders passed by this Court.

We further observe that the Commission may follow as far aspracticable the same basis in other villages for the lands ofwhich compensation ls yet to be fixed by it. Let the reportreceived 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 approvedthe Commission’s reports with respect to villages Kulda and Garjan Bahal.By another order dated 15.07.2013, this court accepted the Commission’sreport for village Karlikachhar. In that order, the court further observedthat lands in two villages namely Kirpsira and Ratansara were transferredby the Central Government to some other companies. The court thereforerequested the Commission to proceed in respect of the two villages and A

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Adirected that at the initial stage, payment of compensation would beMCL’s liability – it could later recover the sums from the successorcompanies. By its order dated 25.10.2013, this court observed thatinfrastructure for resettlement was to be in terms of Odisha Resettlementand Rehabilitation Policy, 2006 (hereinafter, “R&R Policy 2006”) andthe Third Schedule to the (then) Right to Fair Compensation andBTransparency in Land Acquisition, Rehabilitation and Resettlement Bill,2013.

8. On 10.07.2017, this court disposed of the appeal, with thefollowing observations and directions:

“In pursuance of the orders of this Court, a report wassubmitted by Justice Parichha which was accepted by thisCourt but the implementation thereof still remained incomplete.

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Learned Amicus has submitted a report dated 4 July 2017 inrespect of outstanding issues and has made recommendationsas follows:- D

“(i) As far as any compensation amount which is lying in fixeddeposits is concerned, the same must be accounted for atperiodic intervals jointly by the Collector as well as by a seniorofficer of MCL. The said amounts must be safeguardedEsuitably by the Commission and the Commission would be atliberty to seek appropriate direction from this Court as andwhen its work is completed.

(ii) Issue directions to the Collector, Sundargarh as well asthe Chairman and Managing Director of MCL to ensuredisbursement of compensation to all the beneficiaries of the8 villages (namely Balinga, Bankibahal, Garjan Bahal,Gopalpur, Karlikachar, Kunda, Sardega and Tiklipada) onor before 31st July 2017, and to ensure disbursement ofcompensation to all the beneficiaries of the 2 villages, (namelySiarmal and Bangurkela) on or before 31st November, 2017.

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(iii) The Divisional Commissioner, Sambalpur, to makeadequate efforts to trace the persons who have not turned upto receive compensation. The Collectors concerned willcontact their counterparts in States where awardees are knownto migrate, and adopt suitable methodologies to identify theHconcerned person.

(iv) Issue directions to the authorities of MCL to furnish alist, jointly verified by the Collector and the Assistant RevenueOfficer indicating the names of the all awardees ofcompensation, the dates when they were entitled to payment,the actual dates when payment was made and whether thatpayment included interest, to the Claims Commission as wellas the Learned Counsel appearing on behalf of theRespondent parties.

(v) It may be clarified that even with respect two villages(namely Siarmal and Bangurkela) , when the payment ofcompensation is made, interest, as payable, will be determinedto be paid in accordance with Orders of the Hon’ble SupremeCourt. Payment of interest in respect of delayed payment willbe undertaken if interest was not paid in accordance with theOrders of the Court.

(vi) where genuine cases of fraud and impersonation arealleged by MCL, the Claims Commission be empowered toexamine such cases and forward recommendations to theLearned Amicus.

(vii) Direct the authorities of MCL to complete the process ofgranting employment, payment of monetary compensation inlieu of employment, including annuities on or before 31st July201 7 with respect to 8 villages (namely Balinga, Bankibahal,Garjan Bahal, Gopalpur, Karlikachar, Kunda, Sardega andTiklipada) and on or before 31st November, 2017 with respectto 2 villages (namely Siarmal and Bangurkela) .

(viii) Issue directions to the Chairman and Managing Directorof MCL to immediately stop any illegal mining beingundertaken by MCL on agricultural lands in any of thevillages.

(ix) Issue directions to MCL authorities to complete thedevelopment of resettlement colonies in the two sites (namelyBarapalli II and Chatanpalli) on or before 30th September,2017.

(x) Once even one of the rehabilitation sites is ready and thesite has been certified as suitable for shifting by the ClaimsCommission, the Hon’ble Claims Commission may pay pass A

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appropriate orders enabling the shifting of those persons whoare entitled to R&R Benefits in the said site.

In view of the above, it is submitted that the following generaldirections are also necessary -

(xi) That the Managing Director of MCL either himself or bya designated officer will be personally responsible for theimplementation of the directions of the Supreme Court andthe orders by the Commission.

(xii) Suitable steps will be taken by the MCL to complete theprocess of disbursement of compensation.

(xiii) Compensation will be disbursed to the satisfaction ofthe Commission.

(xiv) Employment must be offered to all those left out(Categories I & II in any employment must be offered andcompleted to the satisfaction of the Commission.

(xv) Rehabilitation steps must be completed within a periodof nine months from today.

(xvi) Only upon the rehabilitation being certified by theCommission and experts that a notice can be issued by theCommission asking the oustees to shift to alternate sites.

(xvii) Fresh notices be issued by the Commission in respect ofawardees who have not received monies

(xviii) In respect of awardees who have not been paid moneyin time, interest is payable and such interest be awarded at arate not exceeding 15% by the Commission calculating thesame with reference to the orders of this Hon’ble Court.

(xix) It awardees disbursed and MCL, is also necessary thatincluding the names a list of all the and the amounts by theCollector to the Claims to them, jointly signed must be madeavailable Commission as well as counsel for the ousteesforthwith,

(xx) In so far as acquisition of additional land for resettlementand rehabilitation is concerned, suitable assistance will beoffered by the State authorities including the DivisionalCommissioner Sambalpur.”

We are broadly in agreement with the recommendations madeby the learned Amicus. We, however, leave it open to theappellants or any other affected parties to put forward theirobjections before the High Court/Commission since we areinclined to leave such matters to be dealt with by the HighCourt/Commission.

With regard to recommendation XIV, learned counsel for theappellants has an objection on the ground that the issue iscovered by the Orissa Rehabilitation and Resettlement Policy2006.

Learned Amicus states that the recommendation is consistentwith the report of Parichha Commission which has alreadybeen accepted by this Court. This aspect of the matter may begone into by the High Court, if necessary.

One of the issues which is surviving is as regards constructedhousing on the land allocated for rehabilitation andresettlement by the affected persons. Mr. Dhankar, learnedsenior counsel appearing for the appellants states that it isnot clear whether all such persons want constructed housingor not. A notice will therefore be put in the Office of the DistrictCollector seeking objection to such construction. Those whodo not expressly indicate their option to go for housing otherthan the constructed housing offered by the appellant, suchoption to be indicated within one week of the notice, they willbe presumed to be willing to opt for the allotment of suchhousing constructed by appellant.

We do accept that necessary basic health amenities as alreadydirected 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 ParichhaCommission which has already been accepted, to considerissuing any further directions…”

9. By order dated 13.10.2020, this court had directed MCL toshare all the status reports and relevant documents available with it,digitally, with all parties. Apart from that, the court recorded that asobserved by the previous order dated 02.09.2020, a sum of 566,31,46,942.78 was deposited with the concerned authority. Mr A

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AAtmaram Nadkarni, learned Additional Solicitor General of India,submitted that MCL was willing to offer employment in admitted casesto the persons mentioned in the reports for the relevant villages. Detailswere furnished to the court. In addition, Mr Prashant Bhushan, learnedcounsel for landowners had urged that for villages Tumulia, Jhupuranga,Ratansara, and Kirpsara, no award was declared before 01.01.2014,Bi.e., the date on which the Right To Fair Compensation And TransparencyIn Land Acquisition, Rehabilitation and Resettlement Act, 2013(hereinafter, “R&R Act, 2013”) came into force. Reliance was alsoplaced upon Section 24 of that Act as well as this court’s decision passedby the Constitution Bench in Indore Development Authority v. ManoharCLal & Ors.,[3] to urge that provisions of the 2013 Act relating todetermination of compensation must therefore apply. It was also urgedthat a tabular chart furnished by the District Collector, Sundargarh,indicated that at least in respect of six sites in different villages, nocertificate of completion had been issued by the competent authority,and with respect to two other sites, resettlement and rehabilitation workDwas still at a primary stage.

10. Several applications were moved: some by MCL, and manymore by the landowners, seeking a range of directions. In addition, somecontempt proceedings were also initiated, submitting that the directionsof this court were not complied with altogether, or not implementedEappropriately. All these applications were heard by this court. Thisjudgment will thus dispose of all those applications and contempt petitions.

11. During the course of the hearings, counsels for the partiesaddressed submissions on the following issues:Fi.Point no. 1:The date or dates on which compensationbecame 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 (ofG2013) applied, then for the purpose of employment benefits,whether the family unit was deemed to be represented bya singular member, or several of them; and whether theCommission could re-open determinations based on change H3 Indore Development Authority (LAPSE-5 J.) v. Manoharlal, (2020) 8 SCC 129.

of policies of the State, after its report was accepted bythis court;

iv.Point no. 6: Entitlement to housing plots; and

v.Point no. 7: Creation of facilities and amenities, such asschools, community centres, medical facilities, etc.

B.Analysis

12. Prior to delving into a point-by-point analysis, it is instrumentalto allude to the case of State of M.P. v. Narmada Bachao Andolan,[4]which highlighted the essence of rehabilitation through the lens of Article21 of the Constitution:

“Land acquisition and rehabilitation : Article 21

26. It is desirable for the authority concerned to ensure that asfar as practicable persons who had been living and carryingon business or other activity on the land acquired, if they sodesire, and are willing to purchase and comply with anyrequirement of the authority or the local body, be given apiece of land on the terms settled with due regard to the priceat which the land has been acquired from them. However, theState Government cannot be compelled to provide alternateaccommodation to the oustees and it is for the authorityconcerned to consider the desirability and feasibility ofproviding alternative land considering the facts andcircumstances of each case.

27. In certain cases, the oustees are entitled to rehabilitation.Rehabilitation is meant only for those persons who havebeen rendered destitute because of a loss of residence orlivelihood as a consequence of land acquisition. Theauthorities must explore the avenues of rehabilitation by wayof employment, housing, investment opportunities,and identification of alternative lands.

“10. … A blinkered vision of development, complete apathytowards those who are highly adversely affected by thedevelopment process and a cynical unconcern for theenforcement of the laws lead to a situation where the rightsand benefits promised and guaranteed under the 4 State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639.

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Constitution hardly ever reach the most marginalisedcitizens.” (Mahanadi Coalfields Ltd. case [MahanadiCoalfields 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 intrinsicallyconnected to the land, the economic and cultural shift to amarket economy can be traumatic. (Vide State ofU.P. v. Pista Devi [(1986) 4 SCC 251 : AIR 1986 SC 2025],Narpat Singh v. Jaipur Development Authority [(2002) 4SCC 666 : AIR 2002 SC 2036] , Land Acquisition Officerv. Mahaboob [(2009) 14 SCC 54 : (2009) 5 SCC (Civ)297] , Mahanadi Coalfields Ltd. v. Mathias Oram[Mahanadi Coalfields Ltd. v. Mathias Oram, (2010) 11SCC 269 : (2010) 4 SCC (Civ) 450 : 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 tocultivation is a part of right to livelihood. “Agriculturalland is the foundation for a sense of security and freedomfrom fear. Assured possession is a lasting source for peaceand prosperity.” India being a predominantly agriculturalsociety, there is a “strong linkage between the land andthe person’s status in [the] social system”.

28. However, in case of land acquisition, “the plea ofdeprivation of right to livelihood under Article 21 isunsustainable”. (Vide Chameli Singh v. State of U.P. [(1996)2 SCC 549 : AIR 1996 SC 1051] and Samatha v. State ofA.P. [(1997) 8 SCC 191 : AIR 1997 SC 3297] ) This Courthas consistently held that Article 300-A is not only aconstitutional right but also a human right. (Vide LachhmanDass v. Jagat Ram [(2007) 10 SCC 448] and AmarjitSingh v. State of Punjab [(2010) 10 SCC 43 : (2010) 4 SCC(Cri) 29] .) However, in Jilubhai Nanbhai Khachar v. Stateof Gujarat [1995 Supp (1) SCC 596 : AIR 1995 SC 142] thisCourt held : (SCC pp. 620 & 632, paras 30 & 58)

“30. Thus it is clear that right to property under Article300-A is not a basic feature or structure of the Constitution.It is only a constitutional right. …***

58. … The principle of unfairness of the procedureattracting Article 21 does not apply to the acquisition ordeprivation of property under Article 300-A giving effectto the directive principles.”

29. This Court in Narmada Bachao Andolan (1) [(2000) 10SCC 664] held as under: (SCC pp. 702-03, para 62)

“62. The displacement of the tribals and otherpersons would not per se result in the violation of theirfundamental or other rights. The effect is to see that ontheir rehabilitation at new locations they are better off thanwhat they were. At the rehabilitation sites they will havemore and better amenities than those they enjoyed in theirtribal hamlets. The gradual assimilation in the mainstreamof 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 itbring within its umbrage a right of tribals to be rehabilitated intheir 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 belongingto a member of Scheduled Tribe can ever be acquired.Furthermore, a distinction must be borne between a rightof rehabilitation required to be provided when the land ofthe members of the Scheduled Tribes are acquired vis-à-vis a prohibition imposed upon the State from doing so atall.”

(emphasis supplied)

31. Thus, from the above referred judgments, it is evident thatacquisition of land does not violate any constitutional/fundamental right of the displaced persons. However, theyare entitled to resettlement and rehabilitation as per the policyframed for the oustees of the project concerned.”

With this context, an analysis of each of the aforementioned pointsis elaborated in the following sections.

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AI. Cut-off date

13. Mr. Prashant Bhushan, learned counsel appearing for somelandowners and groups representing them, argued that the Commission’sreport for Gopalpur was accepted by this court, whereby the effectivedate for the computation of compensation was held to be the date ofBnotice of survey. It was submitted that given that compensation andrehabilitation determination had been unduly prolonged, this court oughtto clarify that the date of survey of the concerned village should be theeffective date, rather than the date of survey in the case of villageGopalpur, which was in September 2010. It was argued, that adoptingthis would be consistent, in principle, as anything else would mean thatCthe Commission, and this court, would be applying different standards.

14. Mr. Atmaram Nadkarni, learned senior counsel appearing forMCL, urged that the Gopalpur approach was universally adopted as thecorrect one by the Commission, based on which reports for other villageswere prepared, and consequently compensation amounts determined.DAs a consequence, the landowners also stood to benefit, because thedate of September 2010 was a uniform one, on the basis of whichcompensation and all other amounts were determinable. It was furthersubmitted that so far as the question of delay or prejudice was concerned,there could be no cause for complaint, because there was sufficientEsafeguard in law, by way of award of interest, for delayed payment. Itwas submitted that if this court were to revisit the issue, settled mattersthat had attained finality, would be opened and the process ofcompensation determination thrown into uncertainty, which would notbe to the benefit of anyone, including the land owners.

F15. The Parichha Commission, in its report relating to villageGopalpur, explained the reasons why the date for determination ofcompensation and benefits should be calculated from September 2010:

“15. In a tribal area like Sundargarh most of the peopledepend on agriculture for their sustenance and generally haveGno other avocation. Such people once uprooted from theirland find themselves nowhere having no savings to draw andnothing to fall back upon. Such persons, if not properlyrehabilitated and properly compensated may even facestarvation. During the process of objection hearing, we foundthat being deprived of their legal rights over the lands becauseHof acquisition notification, some tenants could not arrange funds for undertaking treatment to ailing family members, whowere suffering from serious illness as a result some of suchpatients died without getting proper treatment. Some landholders complained that their children’s marriage andeducation were stalled because they had no legal right todeal with their lands. If the compensation would have beenpaid within one or two years of publication· of 4(1)notification, then the land holders could have purchasedequivalent amount of land for their sustenance as admittedlythe value of lands then was much less than the present rate. Itisto be noted that delay in payment of compensation was notat all due to the fault of the land holders but was entirely dueto slackness on the part of the Government of India and thebeneficiary company, MCL. We, therefore feel that the propercompensation for· the lands to the land holders cannot begiven unlessthe cut-of date is brought to the· date of noticepublished by the Claims Commission for survey of the1andsas per the direction of the apex Court. We, accordingly,recommend the cut-off date to be September, 2010 and forassessment of the compensation of the lands of Gopalpur asper the market rate prevalent in 2010-11.”

16. The approach adopted in relation to village Gopalpur fordetermining compensation amounts and fixing the cut-off date asSeptember 2010, was applied in relation to other villages such as Sardega,Balinga, Bankinahal, Tiklipara, Garjanbahal, and Kulda by this court’sorder dated 08.08.2012, and on 10.04.2013, the Commission’s reportwas endorsed and accepted. By another order dated 15.07.2013, thecourt accepted the Commission’s report for village Karlikachhar. Giventhese facts, this court is of the opinion that there is merit in the contentionof MCL, that compensation amounts should be determined having regardto one single cut-off date, i.e., September 2010. Given the fact that thiscourt was alive to the plight of the landowners who had not been paidany amount for over 22 years when the first judgment was delivered,which led to the setting up of the Commission and the evolution of theGopalpur model, whereby survey was undertaken for the first time afterSeptember 2010, that date should be the reckonable one. If one keeps inmind the fact that had the compensation determination been based onthe date of issuance of the preliminary notification, it would have plainlyresulted in injustice to the landowners. Instead, the shifting of the date to AB

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ASeptember 2010, and the further recompense to the landowners basedon that cut-off date, inures to their benefit. The shifting of dates againwould spell uncertainty, and also lead to a real possibility of delay in thecomputation of compensation and other benefits to the landowners whowere deprived of their rights. In these circumstances, the court is of theopinion that re-opening the issue would lead to considerable uncertainty,Bbecause settled cases would invariably have to be re-examined andcomputations made afresh. For these foregoing reasons, the submissionwith respect to application of the dates when the surveys were notifiedas the basis for computation of compensation in different villages, isrejected as unfeasible.C17. The cut-off, based upon the Gopalpur report, of September2010 merits acceptance in regard to all 14 villages for more than onereason. The first and foremost, is that the acquisition in the present caseunder the CBA Act was notified in 1988; the final notification ordeclaration was made in 1990. The nightmare faced by the land ownersDin respect of the internal dispute, ultimately led to their approaching thecourt. Finally, this court intervened and directed the mechanism fordetermination of compensation. By this method, irremediable prejudicethat would have been caused to the land owners had the original date(1988-1990) been treated as the basis, was avoided. The net result isthat the Gopalpur report which is based upon the cut-off being SeptemberE2010, has justly inured in favour of land owners by postponing the datefor reckoning the compensation by 22 years. Secondly, and equallyimportant, most of the compensation determination exercises wereconducted between September 2010 and end of 2013. The land ownershave not been able to demonstrate how the adoption of Gopalpur cut-offFwould prejudice them in any manner. No sale deed or market value ordocuments disclosing significant change in market value between 2010and 2013-14 has been disclosed. Thirdly, all land owners regardless ofwhether 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 statutoryGinterest accruing in favour of the land owners, upon the acceptance ofthe report, which would be over and above the compensation determinedon the basis of the market value determined as well as the solatium. Thiswould offset the prejudice, if any, caused due to basing the compensationdetermination on the Gopalpur cut-off dates. In terms of the State policy,Ha rehabilitation and resettlement development advisory committee

(hereinafter, “RPDAC”) is constituted by the State Government andtasked with implementation of rehabilitation measures. The rehabilitationand resettlement plan has to be prepared by the Collector after consultationwith displaced families. The resettlement site is selected by the RPDAC,based upon the consent of the villagers, post which, an intimation is sentto the required body (in the present case, MCL). According to MCL,this site for resettlement has been finalised. The Collector, pursuant toan order of this court, had filed a report on 03.11.2020. The report coversa large number of rehabilitation and resettlement villages and also liststhat in relation to 12 villages, 326 objections were received by theCollector. After verification exercises, the Collector has reported thatthe list with respect to rehabilitation and resettlement needed the approvalby the Government; and the Collector had to prepare a report inconsultation with the displaced families. The RPDAC had to select thesite, gram sabhas had to be held, displacement certificates had to beissued to persons, in addition to which they had to be provided buildingassistance of minimum 2,40,000/-.

18. Consequently, the date fixed in the Gopalpur report, by theCommission (i.e., September, 2010) would be the basis for compensationdetermination. Apart from compensation, the claimants would also beentitled 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 ofthe R&R Act 2013, the appropriate law for determination of compensationas well as other benefits, would be provisions of that enactment, and notthe repealed Land Acquisition Act, 1894, or the CBA Act. It was urgedthat since in all the cases, where compensation had not been disbursedto the oustees on the date when possession of the land was taken overfrom them, the provisions of the R&R Act 2013 would be attracted.

20. It was urged that the Commission in its reports relating tovillages Kiripsira, Jupurunga, Ratansara, and Tumulia, erroneously rejectedthe claim about applicability of the R&R Act, 2013. It was argued, in thisregard, that the Commission’s reports on this aspect could not besupported, and since the compensation determination had not beenfinalized, the applicable law would be the one in force when the finaldecision is arrived at.

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A21. On behalf of MCL, it was submitted that the Commissionrightly declined to award the compensation under the R&R Act, 2013 asthis court had categorically settled the position vide its order dated25.10.2013. The order of this court had clarified that only the ThirdSchedule of the R&R Act 2013, would be applicable, with regard toinfrastructure for resettlement, etc. So far as award of compensationBwas concerned, this court had already affirmed the Commission’sapproach while approving the Gopalpur report and the same would governall the villages under the acquisition. In case any deviation was madewith regard to award of compensation in any of the villages, it wouldopen up a ‘Pandora’s box’ and all the claims which were settled followingCthe Gopalpur model would open up, resulting in a never-ending process.It was further submitted that MCL, despite having paid a huge amountof over 2,000 crores, had not yet received physical vacant possessionof most of the land, for which compensation was already disbursed, andrehabilitation and resettlement benefits granted.

D22. The Commission had dealt with and rejected the claim forpayment of compensation under the R&R Act 2013, observing as follows:

“8.9 Many land oustees filed Claim Cases with a prayer toprovide them compensation under the Right to FairCompensation and Transparency in Land AcquisitionERehabilitation and Resettlement Act, 2013. This Commissionvide order dated 19.6.2015 passed in Claim Case No.27 andvide order dated 30.10.2018 passed in Claim Case No. 130and order dated 08.12.2018 passed in Claim Case No.10/1& 27 others, after hearing the Counsel appearing in thosecases and the petitioners in person, dismissed those cases.FAll other cases involving similar issue were also dismissed interms 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 toGapply with certain modifications.–(1) Subject to sub-section(3), the provisions of this Act shall not apply to the enactmentsrelating to land acquisition specified in the Fourth Schedule.

(2) Subject to sub-section (2) of section 106, the CentralGovernment may, by notification, omit or add to any of theenactments specified in the Fourth Schedule.

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(3) The Central Government shall, by notification, within oneyear from the date of commencement of this Act, direct thatany of the provisions of this Act relating to the determinationof compensation in accordance with the First Schedule andrehabilitation and resettlement specified in the Second andThird Schedules, being beneficial to the affected families, shallapply to the cases of land acquisition under the enactmentsspecified in the Fourth Schedule or shall apply with suchexceptions or modifications that do not reduce thecompensation or dilute the provisions of this Act relating tocompensation or rehabilitation and resettlement as may bespecified in the notification, as the case may be.

(4) A copy of every notification proposed to be issued undersub-section (3), shall be laid in draft before each House ofParliament, while it is in session, for a total period of thirtydays which may be comprised in one session or in two ormore successive sessions, and if, before the expiry of thesession immediately following the session or the successivesessions aforesaid, both Houses agree in disapproving theissue of the notification or both Houses agree in making anymodification in the notification, the notification shall not beissued or, as the case may be, shall be issued only in suchmodified form as may be agreed upon by both the Houses ofParliament.”

Entry 11 to the Fourth Schedule of the said Act, read as follows:

“11. The Coal Bearing Areas Acquisition and DevelopmentAct, 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 madeunder the CBA Act. However, by Section 105(2), the Central Governmenthad issued a notification:

“Direct that any of the provisions of this Act relating to thedetermination of compensation in accordance with the FirstSchedule and rehabilitation and resettlement specified in theSecond and Third Schedules, being beneficial to the affectedfamilies, shall apply to the cases of land acquisition underthe enactments specified in the Fourth Schedule or shall apply A

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with such exceptions or modifications that do not reduce thecompensation or dilute the provisions of this Act relating tocompensation or rehabilitation and resettlement as may bespecified in the notification, as the case may be.”

25. The Ministry of Coal, Central Government issued a clarificationdated 04.08.2017 on the applicability of First, Second and Third Schedulesof the R&R Act, 2013 in cases of acquisition of lands under the CBAAct. The clarification stated as under:

“1….That consequent upon the announcement of the Rightto Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act 2013( hereinafter‘RFCTLARR Act’) and Order SO No. 2368(E). notified on28.08.2015 by Ministry of Rural Development, Coal IndiaLimited and its subsidiaries have sought clarificationsregarding payment of compensation for land acquired priorto 01.09.2015 under Coal Bearing Areas (Acquisition andDevelopment Act. 1957(hereinafter the ‘CBA Act’)

2. As multiple stages are involved in the land acquisitionprocess, including that of determination of compensation, thisMinistry sought advice from Ministry of Law and Justice.Ministry of Law and Justice has given their advice that if thecompensation has not been determined before 01.09.2015under Section 13(5) of the CBA Act, then the provisions ofFirst Schedule, Second Schedule and Third Schedule of theRFCTLARR Act will be applicable. In remaining cases wherethe compensation has already been determined under Section13(5) of the CBA Act before 01.09.2015, then such cases willnot be reopened.

4. In view of the above clarifications, previous order letterno. 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 ofcompensation 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 excludedapplication of the R&R Act, 2013 to acquisitions made and eminentdomain exercised, under the enactments specified in its Fourth Schedule,such as the CBA Act. It was under this enactment, that the acquisitionswhich are the subject matter of the present proceedings, were notifiedin favour of MCL.

27. When the R&R Act, 2013 was brought into force with effectfrom 01.01.2014, the acquisitions in favour of MCL continued to be underthe CBA Act. By Section 105(3) of the R& R Act, 2013, the CentralGovernment was obliged to issue the notification within one year fromthe date of commencement of that Act to ensure that its provisions relatingto the determination of compensation, were in accordance with theprovisions in the First Schedule and rehabilitation and resettlement inaccordance with the Second and Third Schedules of that Act. It waspursuant to this mandate, that on 28.08.2015 the Central Governmentissued a notification in terms of Section 105(3). However, the CentralGovernment chose to exercise its power to remove difficulties, underSection 103. This seems to be because the notification was issued on28.08.2015– beyond the period prescribed in Section 105(3). Nevertheless,the spirit of the statutory injunction to make the beneficial provisions ofthe R&R Act, 2013 applicable to compensation determination andresettlement or rehabilitation measures, was complied with in effect andsubstance.

28. MCL relied upon the order of this court dated 25.10.2013and urged that only the benefits of the Third Schedule could be availedby the landowners. Those provisions relate to the obligation to provideamenities. At the same time, this court has to be conscious of the factthat when that order was made, the R&R Act, 2013, as we know oftoday, was not even law – it was sought to be introduced in Parliamentthrough a Bill. The order of 25.10.2013 only expressly alludes to theBill. In other words, the court could not foresee the sequence in whichthe provisions of the R&R Act, 2013 would be applicable. The orderof this Court nowhere indicated that whether the R&R Act - whichwas to be enacted, and come into force later - was applicable to allland acquisition proceedings including those pending consideration atvarious levels and before various courts, and whether the body of thenew enactment sought to exclude from its purview acquisitions madeunder enactments other than the erstwhile Land Acquisition Act, 1894, A

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Aas the R&R Act, 2013 eventually did, through Section 105 and theFourth Schedule.

29. There can be no doubt that for the period between01.01.2014 and 28.08.2015, ongoing acquisitions processes underenactments specified in the Fourth Schedule - such as the CBA ActB- were out of purview of the R&R Act, 2013. However, with thepublication of the notification under Section 113 read with Section105(3) on 28.08.2015, the legal position underwent a transformation.Acquisition processes, especially compensation determination as wellas calculation and disbursement of resettlement entitlements andCrehabilitation measures had to be in terms of the First, Second andThird Schedules to the Act.

30. It is immediately noticeable from the provisions of the FirstSchedule to the R&R Act, 2013 that compensation determination isradically different from the pre-existing method of determination. This isDbecause market value determination, by virtue of Sl. No. 2 of the FirstSchedule, requires in the first instance, decision on which factor is to beapplied for acquisition of land in rural areas; Sl. No. 4 outlines the methodfor determining value of assets; and Sl. No. 5 states that the solatiumwould 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 inESerial No. 2. Serial Nos. 6, 7, and 8 outline the method for determiningthe final award.

31. As far as rehabilitation and resettlement entitlements areconcerned, provisions of the Second Schedule apply. By Serial No. 1,if the property displaced includes a house, the specific provision is thatFin case the house is “lost” due to acquisition in rural areas, theresettlement benefit would be “a constructed house” provided as perthe Indira Awas Yojana specifications. In addition, resettlementbenefits by way of employment, or in lieu of it, a one-time payment of5 lakh and annuity policies which were to yield not less than 2000/G- per family per month for 20 years, plus subsistence grant for displacedfamilies for one year, and one time resettlement allowance of 50,000/-, among others, is assured. The Third Schedule to the R&R Act, 2013outlines the infrastructural amenities which the State has to ensure, inthe case of families and people displaced to large scale acquisitionproceedings.H

32. Having regard to the provisions of the R&R Act, 2013especially the First, Second and Third Schedules thereof, the positiontaken by MCL in this Courts’ opinion cannot be countenanced.Undoubtedly the Gopalpur model of determining compensation appliedin respect of the villages for which reports were prepared and approvedby the Courts (Gopalpur, Sardega, Balinga, Bankibahal, Tikilipara,Garjanbahal, Kulda, Karlikachhar, Siarmal, and Bangurkela). However,in regard to four villages i.e., Tumulia, Jhupuranga, Ratansara, andKirpsara, no award has yet been approved. The report for Tumulia villagewas prepared on 04.04.2020 and thereafter filed in court, awaiting itsapproval. The report in respect of the village Jhupuranga has been placedon record; the same is pending approval of this court.

33. This court is of the opinion that with the issuance of thenotification on 28.10.2015 and the clarification by the Central Governmentto MCL on 04.08.2017, the question of paying or depositing compensationin terms of the CBA Act cannot arise after 28.10.2015. This is becausethe requirement of compensation determination under the CBA Act ceasedby virtue of Section 105(3). The statutory regime under the CBA Actwas superseded and substituted with the provisions of the First Scheduleto the R&R Act, 2013.

34. In the light of the above discussion, it is held that the FirstSchedule of the R&R Act, 2013 is applicable to the acquisition inquestion, made by the Central Government in favour of MCL, in respectof the villages, the reports of which were not approved prior to28.10.2015. Accordingly, the compensation based upon the market valuefor the four villages i.e., Tumulia, Jhupuranga, Ratansara, and Kirpsarahave to be re-determined in accordance with the provisions of theFirst Schedule to the R&R Act, 2013. Since the extent to land involved,identification of land owners, and the basic market value along withsolatium and interest payments, have been determined, the onlyadditional exercise which the Commission has to carry out is thedifferential payable after the re-determination in respect of all theelements i.e., the market value, solatium, and further interest. It is alsofurther clarified that the villages in respect of which this court hasalready approved reports of the Commission, and entitlements havebeen determined, even availed of, or pending implementation, i.e., theother ten villages, the issues shall stand finalized - there can be no re-determination on the basis of the present judgment.

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1170SUPREME COURT REPORTS

AIII.Point Nos. 3 (whether the Orissa Rehabilitation Policyof 2006, or the subsequent Policy of 2013 applies), 4(whether for the purpose of employment benefits underthe 2013 Policy, the family unit is deemed to be one, orseveral) and 5 (whether the Commission could re-opendeterminations based on change in policies of the State,Bafter its report was accepted by this court)

35. Learned counsel for the landowners had urged that by virtueof Section 108 of the R&R Act, 2013 the affected individuals or familieshave the choice or option to avail benefits of rehabilitation and resettlementeither in terms of the State law or policy or the provisions of the Act. ItCwas submitted that for the purposes of deciding such package andresettlement benefits, the cut-off date should be the date on which thesurvey was first conducted in relation to the concerned village. Thelearned counsel therefore submitted that the approach of the Commissionin confining itself to the R&R Policy 2006 and denying the later beneficialDprovisions through the amendment of 2013 is untenable.

36. On behalf of MCL, it was argued that the Commission’sapproach in calculating the rehabilitation and resettlement benefits in theR&R Policy 2006 is sound. It is submitted that the arguments on behalfof the land owners assumes that the acquisition in the present case wasEmade under the R&R Act, 2013. In fact, the old Land Acquisition Actwas inapplicable; what applied was the CBA Act. Therefore, the policywhich inured in favour of the land owners was embodied in the R&RPolicy 2006. That was also in force when the judgment of this court wasdelivered pursuant to which Gopalpur report was approved. Besides,the subsequent reports have also gone by the 2006 policy. In theseFcircumstances, there is no question to say that the 2013 policy wouldapply, with the reopening of past cases resulting in chaos and uncertainty.It would prolong the process of determining the rehabilitation andresettlement benefits and also ensuring that they are received by thebeneficiaries. Furthermore, adopting the 2013 amendment would resultGin 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 compensationand rehabilitation and resettlement.-(1) Where a State law ora policy framed by the Government of a State provides for aHhigher compensation than calculated this Act for the acquisition of land, the affected persons or his family ormember of his family may at their option opt to avail suchhigher compensation and rehabilitation and resettlement undersuch State law or such policy of the State.

(2) Where a State law or a policy framed by the Governmentof a State offers more beneficial rehabilitation and resettlementprovisions under that Act or policy than under this Act, theaffected persons or his family or member of his family may athis option opt to avail such rehabilitation and resettlementprovisions under such State law or such policy of the Stateinstead of under this Act.”

38. It is also pertinent to notice the relevant provisions of theR&R Policy 2006. By clause 2(b), the term “compensation” meansthe 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 whichnotification declaring the intention to acquire land under the relevant lawor provision of the rehabilitation policy is published. A note to clause 2(c)states that the eligibility for resettlement and rehabilitation benefits wouldbe through a list of displaced families, and that the list would be updatedon the first January in the year in which the physical displacement is totake place. The term “family”, which is crucial in the present case, hasbeen defined by the 2006 policy as follows:

“(f) Family means the person and his or her spouse, minorsons, unmarried daughters, minor brothers or unmarriedsisters, father, mother and other members residing with himor her and dependent on him or her for his/her livelihoods.

Note: Each of the following categories will be treated as aseparate family for the purpose of extending rehabilitationbenefits 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 irrespectiveof age and sex; (duly certified by the authorized MedicalBoard). For this purpose, the blind/the deaf/theorthopedically handicapped/mentally challengedperson suffering from more than 40% permanentdisability will only be considered as separate family.

A

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A(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 displacedpersons are to take place. By clause 7(ii), physical displacement cannotbe made before the completion of resettlement work; by clause 7(v),Bprovisions relating to rehabilitation are to be given effect from the dateof actual vacation of the land. Clause 8 outlines rehabilitation assistance.Where displacement is on account of Type B(II), i.e., mining projectwhich results in displacement of land owners, the benefits of rehabilitationand resettlement are as follows:

C

“II. Type B: Mining Projects

(a) Employment: Displaced and other affected families shallbe eligible for employment, by the project causingdisplacement. For the purpose of employment, each familywill nominate one member of the family.

D

The project proponent will give preference to the nominatedmembers of the displaced and other affected families in thematter of employment. The order of preference will be asfollows:

(1) Displaced families losing all land including homesteadEland,

(ii) Displaced families losing more than 2/3rd of agriculturalland and homestead land,

(iii) Families losing all agricultural land but not homesteadland, F

(iv) Displaced families losing more than 1/3rd of agriculturalland and homestead land,

(v) Displaced families losing only homestead land but notagricultural land, G

(vi) Families losing agricultural land in part but not homesteadland.

The Project authority will make special efforts to facilitateskill up-gradation of the nominated member of the displacedfamily to make him/her employable in their project.

H

1. In case of nominees of displaced families eligible foremployment otherwise; the upper age limit shall be relaxedby five years.

2. Project authorities should notify their employment capacitysufficiently in advance.

3. As far as practicable, the objective shall be to provide onemember from each displaced/other family as mentioned abovewith employment in the project. However, where the samecannot be provided because of reason to be explained inwriting, cash compensation as mentioned below shall beprovided to such families. Families, who do not opt foremployment/self-employment as mentioned in sub para (a)above and (b) below, shall be provided by the Project authoritywith one time cash assistance in lieu of employment at thescale indicated below:

(b) Training for Self-employment Project authority under theguidance of the Collector concerned will make adequatearrangement to provide vocational training to at least onemember of each displaced/other family so as to equip him/her to start his/her own small enterprise and refine his/herskillstotake advantage of new job opportunities. For thoseengaged in traditional occupations/handicrafts/handlooms,suitable training shall be organized at the cost of projectauthority to upgrade their existing skills.

(c) Convertible Preference Share: At the option of thedisplaced family the project authority may issue convertiblepreference share upto a maximum of 50% out of the one-timecash assistance as mentioned in sub para (a) above.

(d) Provision for homestead land: Subject to availability, eachdisplaced family will be given at least1/10th of an acre of A

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A

land free of cost in a resettlement habitat for homesteadpurpose.

(e) Assistance for Self-relocation: Each of the displaced familywho opts for self-relocation elsewhere other than theResettlement habitat shall be given a one time cash grant ofRs.50,000/- in lieu ofhomestead land.

B

(1) House Building Assistance: Besides, Project authority shallconstruct house for each displaced families in the resettlementhabitat or provide house building assistance of Rs.1,50,000/- to each of the displaced family settling in the Resettlementhabitat or opting for self relocation elsewhere.

C

(g) Shops and Service Units: Project authorities will alsoconstruct shops and service units at feasible locations at theirown cost, which will be allotted in consultation with Collectorto project displaced families opting for self-employment. Whileallotting such units, preference will be given to physicallychallenged persons and members of displaced SC & STfamilies.”

D

40. On 05.08.2013, the State of Orissa, through a notificationpublished in the Official Gazette, published the amendments to the R&REPolicy 2006. The amendment essentially dealt with change in clause2(f) with respect to the definition of “family”. The amendments madeare extracted below:

“AMENDMENTS

1. In the Orissa Resettlement and Rehabilitation Policy, 2006F(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 bedeemed to have come into force on the 1[st] 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 “Amajor son/grandson irrespective of his marital status” shallbe substituted.

G

3. In sub-clause (ii) under clause (f) of Para 2, for the words“Unmarried daughter/sister more than 30 years of age”, the H

words “Major unmarried daughter/Major unmarriedgranddaughter/Major unmarried sister” shall be substituted.

4. Amendment to Para 2(f)(i) is made to clarify and restatethe provision of the said policy. Therefore, it shall takeretrospective effect from the date of commencement of the saidPolicy, i.e. 15[th] May, 2006.

5. Amendment to Para 2(f)(ii) shall take effect from the dateof issue of this Government Resolution.”

41. The difference between the R&R Policy 2006 and the policyas amended in 2013, essentially, is with respect to definition of “family”.The 2006 policy has remained unchanged with respect to otherresettlement/rehabilitation benefits. The benefits may broadly be outlinedin the following terms:

(i) Employment; cash in lieu of employment – employment toat 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) entitleseach displaced family at least 1/10[th] of an acre of land in aresettlement habitat. One time cash grant of 50,000/- forthose opting for self-location elsewhere in lieu of homesteadland;

(iii) House building assistance of up to 1,50,000 to eachdisplaced family, settling in the resettlement habitat or optingfor relocation elsewhere. Shops and service units to beconstructed by the project authorities which are to be allottedin consultation with the Collector to displaced family optingfor self-employment. These were subject to preference tophysically challenged persons and members of the displacedSC/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 aconstructed house in terms of the Indira Awas Yojana specifications.This benefit can also be enjoyed by those who do not have a house butwere residing in the area for three years prior to acquisition. In case afamily in an urban area opts not to take the house offered, it will beentitled to one time compensation for house construction which will not A

B

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Abe less than 1,50,000/-. At the same time, if any affected family inrural area so prefers, the equivalent cost of house may be offered in lieuof the constructed house. The second benefit is that if jobs are createdthrough the project which benefits from acquisition, the concerned entityshould provide suitable training and skill development in the requiredBfield and make provision for employment at a rate not lower than theminimum wages to at least one member of the affected family orarrange for a job in any other project. In lieu of this benefit, a one-timebenefit of 5 lakhs per family is to be made or annuity policies whichwould be not less than 2,000/- per month per family for 20 years withappropriate indexation in consumer price index for agricultural labourersChas to be made. Furthermore, subsistence allowance for displaced familiesfor a comparative one-year equivalent of 3000/- per month is to beprovided. Additional transportation cost for shifting and one timeresettlement allowance of 50,000/- is payable.

43. The provisions of the R&R Act, 2013 which replaced the oldDLand Acquisition Act, 1894 have for the first time cast obligations uponthe State to ensure that resettlement and rehabilitation is provided inaddition to compensation. These rehabilitation and resettlement provisionsrelate not only to a right to employment for at least one member of thedisplaced family but also other monetary and tangible benefits, such asEland 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, byprovisions of the Third Schedule, elaborate provisions for the kind ofpublic amenities which have to be provided, such as public health benefits,schools, community centres, roads and other basic necessities, have beenFobligated. All these are in furtherance of the displaced and the largersocial justice obligations cast upon the State.

44. The R&R Act, 2013 by Section 108 also clearly envisions thatthe benefits provided by the new law are not to be applied blindly.GWherever there are existing provisions that are more beneficial or providebetter benefits to displaced persons, such families and individuals havethe choice or option to prefer either such policy or local law or theprovisions of the R&R Act. If one goes by the principle underlying Section108, clearly the benefits spelt out under the R&R Policy 2006, appear tobe better, and more elaborate.H

45. As noticed earlier, the difference between the OrissaResettlement 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 dependenton him or her for his/her livelihoods.” The note to clause 2 (f) statesthat, “Each of the following categories will be treated as a separatefamily for the purpose of extending rehabilitation benefits underthis policy.” It also enumerates a major son and an unmarried daughter/sister of more than 30 years, as “a separate family for the purpose ofextending rehabilitation.”

46. The amendment to the policy, made on 05.08.2013, is thatinstead of a major son, the expression “A major son/grandsonirrespective of his marital status” was substituted. Similarly, the term“Unmarried daughter/sister more than 30 years of age”, wassubstituted with “Major unmarried daughter/Major unmarriedgranddaughter/Major unmarried sister”.

47. The rival arguments in regard to these amendments were thaton the one hand, the landowners urged that grandsons, apart from theoriginal beneficiaries, were entitled to employment benefits, as wereunmarried daughters, who were more than 30 years. On the other hand,MCL urged that the basic idea of rehabilitation being granting employmentto one member of the displaced or affected family, the construction tobe given to the policy should be in harmony with that intent, and notresult in an employment bonanza, thus placing undue burdens on theMCL.

48. A proper and purposive interpretation of the policy – withrespect to employment benefits and entitlements can be gathered, notonly by taking note of the definition of “family” but also the operativeportion, which confers benefits. The same is as follows:

“II. Type B: Mining Projects

(a) Employment: Displaced and other affected families shallbe eligible for employment, by the project causing displacement.For the purpose of employment, each family will nominateone member of the family.”

A

B

C

D

E

F

G

H

A49. If one considers what the policy seeks to achieve, it is apparent,that one member of a displaced family has to nominate the individualwho can receive employment benefit.In this context, it is crucial tonotice 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 wouldbe treated as belonging to a separate family. The reason for this apparentlyBis that the senior most member of the family might not always be in aposition to take up employment: either on account of age, or infirmity, orthe number of years of service left. Therefore, to ensure that employmentbenefits are not denied due to such limitations, the definition of familyhas been intentionally expanded, to include a major son, who would beCeligible to employment, and, in case his father or mother cannot beemployed, or can be employed only for a short duration. The inclusion ofa 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/grandsonirrespective of his marital status” leads one to the same conclusion.Thus, with the amendment of 2013, the basic entitlement of the personDaffected, and his major son(who is to be treated as a separate family)cannot be denied. The inclusion of a grandson, not as a separatecategory, but along with the major son, is to ensure that if, for somereason, the son is un-employable, or in turn is aged, or infirm, then, themajor grandson would be employed, in his stead. In other words, theEproper interpretation of this condition is that the father would be entitledto employment; in case a major son exists, then that major son wouldtoo. However, if there are more than one major sons, one among themwould be entitled to the benefit, not all. Likewise, failing a major son,i.e., where no major son exists, in that eventuality one major grandsonwould be eligible for employment. This interpretation is fortified by theFfact that an unmarried daughter is treated as a separate unit; earlier, thebasic eligibility was subject to attaining 30 years. Now, the age restrictionhas been done away with. Furthermore, to hold that the individual, oneof his major sons, and one major son, would all be eligible, together, toclaim employment is not the plain intendment. The structure of theGdefinition and the clause dealing with employment clearly shows thattwo members of the family: i.e., the father and the son are eligible. Inaddition, an unmarried daughter too, would be treated as a separate unit.

50. It is therefore held that R&R Policy 2006, as amended in2013, being more beneficial, would be applicable, subject to the aboveHinterpretation. At the same time, it is clarified that in cases where anyone has accepted employment, the issue cannot be re-opened – it shall betreated as final and binding. It is also clarified that in the event anyoneamong the displaced families is not interested in employment, and statesso expressly, the alternative of one-time monetary payment, in terms ofclause 3 of the 2006 policy, would be provided.

51. Therefore, in the light of the above discussion, it is held thatthough the R&R Policy 2006 as amended in 2013 is applicable, thequestion of the father, the son and grandson, being eligible for employmentbenefit, concurrently, does not arise. Either one major son, or, in hisabsence, or unwillingness, a major grandson, would be eligible. This isapart from the entitlement of unmarried daughters: in their case, theaforementioned note to the definition had treated such daughters as aseparate family; the amendment has only removed the age threshold.

52. As a result of the above reasoning, it is held, in relation toPoint No. 3, 4 and 5 that the R&R Policy 2006, as amended in 2013would apply. A displaced family has to be determined in the light of thedefinition, which includes the individual, and one major son, and anunmarried daughter. It is when, for some reason, the son cannot beoffered or given employment, then one major grandson would be eligiblefor consideration. This court also holds that cases which have attainedfinality cannot be re-opened on the basis of this interpretation. Theinterpretation would inure in respect of cases where the reports havenot been approved i.e., villages Tumulia, Jhupuranga, Ratansara, andKirpsara.

53. During hearings, the learned ASG had submitted that MCLwas willing to provide a one-time compensation amount in lieu ofemployment, of 16 lakhs, as an alternative to the 2006 policy. It istherefore directed that whichever option (R&R Policy 2006 or this one-time compensation offer from MCL) is better, is to be provided. Theconcerned Collector is to ensure the same.

IV.Point No. 6: Entitlement to housing plots

54. MCL has provided details and particulars with respect tovillage-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 familiesof which such benefits were provided to 1177 families. 1614 families areyet to be sanctioned these resettlement benefits/plots. The chart, which A

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Aaccording to MCL reflects the picture as of October 2021, is extractedbelow:

BCD

55. The status of resettlement sites as of October 2021, accordingto MCL, is as follows:

EFGH

activities of the site for Aan 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 Bissued on Dt:24.11.2020. 6 Sarangijharia88.00 440 0 Gopalpur 22 nos. of proposal regarding development of R&R site Sarangijharia has been processed and sent MCL HQ for approval.C

56. During the hearing, MCL argued that there was reluctance onpart of the villagers regarding resettlement sites which has createdproblems for it. It was therefore, urged that the concerned collectorshould in a time bound manner finalise the sites after which MCL shouldalso be given time-bound directions to develop them. In the alternative, itwas urged that instead of long drawn out rehabilitation/resettlementprocess, which envisions involvement of multiple authorities, the courtmay consider it appropriate and award one-time lumpsum amount in lieuof plots – further wherever plots have been earmarked, allotted, and inthe process of development and allotment, such classes should not bedisturbed. It was urged in this regard that in the sites which are readyfor relocation, and shifting, in terms of the order of the Claim Commission,House Building Advance has been enhanced from 2,24,000/- to14,50,000/-.

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57. On behalf of the land owners, it was urged that the R&Rpolicy of the State envisions that ordinarily a plot has to be provided tothose who were displaced. There is no doubt that the State authoritieshave delayed the process unduly. It was further submitted that giventhat most of the displaced families belong to the poorest sections of thesociety and are from the Scheduled Tribes communities, it would not beappropriate to award cash compensation, but instead the State authoritiesshould ensure that resettlement plots are given.

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58. The resettlement benefits in terms of the State’s policies includedevelopment of plots and allotment to displaced families, which is “subjectto availability”. One time assistance for relocation @ 50,000/-; house H

Abuilding allowance of 1,50,000 has concededly been increased to14,50,000. The figures shown by MCL as well as the materials placedon record in the form of objections by the land owners disclose that theprogress 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.

B59. Under the R&R Act, 2013 the State and MCL are under anobligation to ensure that rehabilitation and resettlement plans are preparedin consultation with the displaced owners. The State policy is also inaccordance with the Act in that regard. In the present case, accordingto the materials, MCL asserts that resettlement plots have been providedto 1177 displaced families and that 1614 families remain to be given thatCbenefit.

60. Having regard to the fact that the judgment of this court wasdelivered in 2010 after which compensation determination and reportsof the committee were prepared and submitted to this court mostlybetween 2010 and 2013, and further having regard to the fact that twoDother reports are pending consideration of this court, it would, in thefitness of things, be appropriate that such of the resettlement plots whichhave been acquired, should be developed in consultation with theCollector. The Collector will hold hearings, after giving due publicity tothe land owners, indicating the place and providing adequate time for allEland owners and stakeholders to be present. Having considered the viewsof the land owners, the Collector will, with the involvement of threenodal officers to be specially assigned with the task of implementationof the resettlement policy, by co-ordinating with all State agencies, finaliseand approve the plots. This process should be completed within ninemonths of judgment of this court. The Court is also of the opinionFthat the development of such plots should not exceed 15 months inall.

61. In case the number of plots is inadequate, the Collectorconcerned shall secure the options in the first instance from displacedfamilies, whether they would like to be allotted a plot or take lumpsumGcompensation in lieu thereof. Having secured these options, in case thenumber of land owners exceeds the number of plots, the Collector shallensure 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, thiscourt is of the opinion that lumpsum compensation to the extent ofH25 lakhs should be paid to them.

62. This court is constrained to adopt the procedure indicatedabove, having regard to the fact that the process of compensationdetermination, identification of resettlement sites and development hastaken inordinately long – during which the displaced families must haveundergone multiple changes by births and death. It would therefore, beappropriate and in the interests of justice, that at some stage, the entirerehabilitation and resettlement process is brought to an end and the landowners are provided resettlement and rehabilitation by way of cashbenefits, whenever it is not possible to provide plots.

V.Point No.7: Creation of facilities and amenities such asschools, community centres, medical facilities etc.

63. The Orissa Resettlement and Rehabilitation Policy does notindicate specific provisions with respect to facilities and amenities thatare to be developed. Consequently, the provisions of the Third Scheduleto the R&R Act, 2013 which outlines 25 heads and indicate amenitiessuch as roads in the villages, appropriate drainage, provision for safedrinking water for each family, provision for drinking water for cattle,grazing land, reasonable number of fair price shops, community orpanchayat ghars; village level post offices, seed-cum-fertilizer storagefacilities, provision for basic irrigation facilities, transportation to the newlyresided areas, burial or cremation grounds, facilities for sanitation,including individual toilet points, individual single electricity connections,anganwadi, providing child nutritional services, school, sub-health centreswithin two kilometre range, Primary Health Centres in terms of theCentral Government norms, play grounds for children, one communitycentre for every 100 families, places of worship, separate land fortraditional tribal institutions, etc. In addition, forest dweller families mustbe provided with their forest on non-timber produce close to the newplaces of resettlement. Furthermore, appropriate security arrangementsare to be provided and service centre in accordance with the prescribednorms also has to be provided.

64. In the present case, the materials on record show that thoseresettlement sites have been earmarked and are at different stages ofdevelopment. The mandate of the law – i.e., the Third Schedule to theR&R Act, 2013 is very clear in that all the amenities to the extent theyconform to the population in each of the resettlement areas have to beprovided. In these circumstances, there may be no escaping theseobligations. The State Government, through its appropriate agencies A

B

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Ashould draw up a comprehensive plan for creation of such amenities andensure that they are functional so as to complete rehabilitation andresettlement in a meaningful manner.

65. It was urged during the course of submissions on behalf of thevillages Ratansara by Ms. Kamalpreet Kaur, learned advocate, that theBbenefits existing for individuals from Scheduled Tribes have to beprotected. It was submitted in this regard that Sundergarh, where theacquisition has taken place, is covered by Fifth Schedule to theConstitution of India. Sections 41 and 42 of the R&R Act, 2013 read asfollows:

C“41. Special provisions for Scheduled Castes and ScheduledTribes. – (1) As far as possible, no acquisition of land shallbe made in the Scheduled Areas.

(2) Where such acquisition does take place it shall be doneonly as a demonstrable last resort.

D

(3) In case of acquisition or alienation of any land in theScheduled Areas, the prior consent of the concerned GramSabha or the Panchayats or the autonomous District Councils,at the appropriate level in Scheduled Areas under the FifthSchedule to the Constitution, as the case may be, shall beEobtained, in all cases of land acquisition in such areas,including acquisition in case of urgency, before issue of anotification under this Act, or any other Central Act or a StateAct for the time being in force:

Provided that the consent of the Panchayats or theAutonomous Districts Councils shall be obtained in casesFwhere the Gram Sabha does not exist or has not beenconstituted.

(4) In case of a project involving land acquisition on behalfof a Requiring Body which involves involuntary displacementof the Scheduled Castes or the Scheduled Tribes families, aGDevelopment Plan shall be prepared, in such form as may beprescribed, laying down the details of procedure for settlingland rights due, but not settled and restoring titles of theScheduled Tribes as well as the Scheduled Castes on thealienated land by undertaking a special drive together withHland acquisition.

(5) The Development Plan shall also contain a programmefor development of alternate fuel, fodder and, non-timberforest produce resources on non-forest lands within a periodof five years, sufficient to meet the requirements of tribalcommunities as well as the Scheduled Castes.

(6) In case of land being acquired from members of theScheduled Castes or the Scheduled Tribes, at least one-thirdof the compensation amount due shall be paid to the affectedfamilies initially as first instalment and the rest shall be paidafter taking over of the possession of the land.

(7) The affected families of the Scheduled Tribes shall beresettled preferably in the same Scheduled Area in a compactblock so that they can retain their ethnic, linguistic and culturalidentity.

(8) The resettlement areas predominantly inhabited by theScheduled Castes and the Scheduled Tribes shall get land, tosuch extent as may be decided by the appropriate Governmentfree of cost for community and social gatherings.

(9) Any alienation of tribal lands or lands belonging tomembers of the Scheduled Castes in disregard of the lawsand regulations for the time being in force shall be treated asnull and void, and in the case of acquisition of such lands,the rehabilitation and resettlement benefits shall be madeavailable to the original tribal land owners or land ownersbelonging to the Scheduled Castes.

(10) The affected Scheduled Tribes, other traditional forestdwellers and the Scheduled Castes having fishing rights in ariver or pond or dam in the affected area shall be given fishingrights in the reservoir area of the irrigation or hydel projects.

(11) Where the affected families belonging to the ScheduledCastes and the Scheduled Tribes are relocated outside of thedistrict, then, they shall be paid an additional twenty-five percent. rehabilitation and resettlement benefits to which theyare entitled in monetary terms along with a one-time entitlementof fifty thousand rupees.

42. Reservation and other benefits. – (1) All benefits, includingthe reservation benefits available to the Scheduled Tribes and A

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Athe Scheduled Castes in the affected areas shall continue inthe resettlement area.

(2) Whenever the affected families belonging to the ScheduledTribes who are residing in the Scheduled Areas referred to inthe Fifth Schedule or the tribal areas referred to in the SixthBSchedule to the Constitution are relocated outside those areas,than, all the statutory safeguards, entitlements and benefitsbeing enjoyed by them under this Act shall be extended to thearea to which they are resettled regardless of whether theresettlement area is a Scheduled Area referred to in the saidFifth Schedule, or a tribal area referred to in the said SixthCSchedule, or not.

(3) Where the community rights have been settled under theprovisions of the Scheduled Tribes and Other TraditionalForest Dwellers (Recognition of Forest Rights) Act, 2006 (2of 2007), the same shall be quantified in monetary amountDand be paid to the individual concerned who has beendisplaced due to the acquisition of land in proportion withhis share in such community rights.”

66. As is evident, the R&R Act, 2013 has nuanced applicationand makes special provisions to prevent hardships to members of theEScheduled Caste and Scheduled Tribe communities. Section 41 requiresreview exercises to ensure that the least possible harm befalls SC/STmembers living in the areas sought to be acquired. It also mandates thatformulation of a development plan and protective provisions invalidatingalienation of tribal lands or lands belonging to the SC/ST in disregard ofFlaws and regulations as null and void. Section 42, on the other handensures that all benefits, including reservation benefits available to SC/ST in the affected area shall continue in the resettlement area. In thiscase, the land owners were displaced on account of the acquisition infavour of MCL, which is entirely involuntary. It is not in dispute thatGthese displaced families/land owners are residents of the Fifth ScheduleAreas.

67. As far as Section 41 goes, in the opinion of this court, giventhat the acquisition notification was issued in 1988 and finalised in 1990and even the judgment of this court indicating the methodology forHcompensation 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 rehabilitationhave been mandated by both provision of the R&R Act, 2013 which hasapplication to the ongoing acquisition, as well as the R&R Policy 2006 ,the obligation to ensure that the benefits of the displaced persons are notput to grave and irreparable prejudice by denying them their status asSC/ST, has to be ensured. This is mandated by Section 42 of the R&RAct, 2013 which directs that whenever lands of SCs/STs are acquirednecessitating their displacement, either in terms of territories or the areasthey reside in, leading to their movement to other areas - where theirtribe or caste may not necessarily be recognised as SCs/ST - the statuswhich they enjoy but for the displacement has to be preserved andprotected. In the opinion of this court, this statutory mandate and obligationcannot be denied by the State or agency, as a matter of law. As a resultof the above discussion, it is held that:

A

B

C

i.The facilities and amenities set out in the Third Schedule tothe R&R Act, 2013 have to be necessarily provided to thedisplaced families involved in this case in the resettlementareas where they are located and where they ultimatelymove to; and D

ii.In this case, all members of SC/ST who are forced to movefrom their lands on account of the acquisition do soEinvoluntarily. They are consequently entitled to the right tobe treated as members of the SC/ST. The State authoritiesshall ensure that members of the families who are displacedand whose lists are maintained by the Commission as wellas MCL shall be issued with fresh SC/ST certificates.

F

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-offdate for determining compensation for land acquired is tobe based upon the cut-off date approved by this court inrelation to village Gopalpur, i.e., September 2010. At thesame time, it is directed that since common cut-off datehas been accepted, all benefits flowing from it, includingstatutory interest upon compensation and solatium, isdeterminable on the basis of that cut-off date for the entireacquisition.

G

H

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Aii.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 broughtinto force i.e., before 01.01.2014. In the present case, itapplies from the date the Central Government issued anotification bringing into force the proceedings of the First,Second and Third Schedules to the enactment specified inBthe Fourth Schedule, which in this case was the CBA Act.The date therefore, on which the R&R Act, 2013 isapplicable from, is 28.08.2015. Additionally, the report whichwas finalised before that date cannot be interfered with.The land owners and displaced families residing in theCvillages for which reports were prepared earlier than28.08.2015, would not therefore be entitled to the benefitsof the R&R Act, 2013. Hence, the benefits of the R&RAct apply to displaced families and land owners of Kiripsira,Ratansara, Jhupuranga and Tumulia.

Diii.Re point no. 3, 4 and 5:

a.It is held that the R&R Policy 2006 as amended bythe 2013 policy applies for the purpose of employmentbenefits.

b.A family unit would comprise of head of family orfather, a major son, and an unmarried daughter havingEregard to the definition and the note appended thereof.In case, for some reason, the major son cannot begiven employment, and there exists a major grandson,he would then be eligible for consideration. In otherwords, two members (father and son or father andFgrandson) would be eligible for employment and notthree, in addition to the unmarried daughter who isalso to be treated as separate unit.

c.This court is of the opinion that the Commission couldnot reopen determinations based upon change ofGpolicies of the State given that the benefitsadjudicated by it based on factual determinations hascrystallised. In many cases, MCL has actuallyprovided employment to several individuals.Consequently, it is held that all cases that have beenadjudicated and were approved by this court cannotHbe reopened.

iv.Re point no. 6:

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a.On the point of housing plots, it is hereby declaredand directed that the State and MCL are under anobligation to ensure that the land acquired by it inthose areas which are to be developed, have to bedeveloped. The State Government shall ensure thatBat least three nodal officers from the departmentsconcerned are deployed for facilitating this task ofcoordinating with all agencies and ensuring that thedevelopment of the plots duly takes place to enablethe Collector to make the necessary allotments withinCthe time indicated. These nodal officials shall be dulyempowered by the state, through appropriatenotifications to issue all necessary consequentialorders, for the implementation of resettlement andrehabilitation measures. The Chief Secretary of theOrissa State Government shall select the officers,Dand issue the necessary notifications. Furthermore,the State shall ensure that these officers are notposted out, for at least 3 years, or till the task ofrehabilitation and resettlement is completed.

b.The Collector shall ensure that the plots earmarkedEare duly notified for the concerned villages and landowners by giving due publicity and adequate notice.The views of the landowners shall be ascertainedand noted, for which purpose, adequate notice shallbe given, specifying the venue, date and time ofconsultation.Fc.In case any individual land owner(s) are notinterested for allotment of the plots, it is open forthem to state so. The Collector shall in such eventrecord their disclaimer expressly in writing and issuea certificate. In that event the displaced family wouldGbe 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 ofplots, the Collector shall conduct a draw of lots, andif needed, more than one draw of lots, whereby plotsH

1190SUPREME COURT REPORTS

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are allotted to the concerned displaced families. Incase, for any reason such plot or plots cannot behanded over within two years, or are not available,the leftover families so to say would be entitled tothe one-time compensation of 25 lakhs with interest@ 7% per annum, for two years.

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v.Re point no. 7:

a.The State shall ensure that all facilities and amenitiesare developed in accordance with the Third Scheduleto the R&R Act, 2013 within three years in whichplots are handed over to the displaced families or inany event within three years from the date of thisjudgment. The necessary funding for this purposeshall be by MCL, in addition to the State’s obligationto spend its resources.

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b.The members of the SC/ST communities shall beDentitled to the preservation and protection of theirstatus in view of Section 42 of the R&R Act, 2013.Consequently, the concerned Collectors shall ensurethat appropriate caste certificates are issued in thisregard, given that land owners have been movedEinvoluntarily and would have to migrate to other areas.

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vi.This court further directs that compensation determinationin any event shall be completed and payments madewithinsix months from today. The Commission shall ensure thatthis task is taken up as far as possible and completed withinFthat time frame. Consequently, the Commission shall finalizethe reports for villages Kiripsira and Ratansara. As regardsthe reports of Jhupuranga, and Tumulia, the Commissionshall complete the task of redetermining compensation withinthree months. The State shall ensure that compensation inGrespect of four villages is determined in accordance withthe R&R Act, 2013. Wherever compensation has notactually been disbursed, the State shall do so within 6 monthsfrom pronouncement of this judgment.

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vii.MCL is under an obligation to ensure that employmentbenefits are granted and extended and offers are made in H

accordance with the 2013 policy in all cases where the listsof those who opted for employment has not been finalised.It is clarified in this regard that wherever employment hasbeen obtained, the same shall not be reopened. Likewise,the question of reopening entitlements for employment,based upon the interpretation of this court shall not bereopened in case of villages where reports have beenaccepted through previous orders.

viii.In the event any family undertakes that its members arenot desirous or do not wish to opt for employment, the Stateshall, through the nodal officers, ensure that the disclaimeris voluntary, and that one-time compensation indicated inthe 2006 policy or under the R&R Act, 2013 or the one-time offer of Rs 16 lakhs by MCL, as submitted by thelearned ASG (whichever is more beneficial), is paid to thefamily concerned. The Collector must ensure the same isprovided.

ix.The court hereby directs that the Commission shouldcomplete its task and that its report should be the basis fordisbursement of compensation, one-time rehabilitationpackage of 25 lakhs per family as indicated above andemployment offer within one year from today. In case ofany vacancy in the Office of Chairman of the Commission,the Chief Justice of the Orissa High Court shall nominate aretired judge of that court. In the event of any other vacancy,the Government of Orissa shall nominate the concernedmembers. However, it is clarified that the governmentnominees 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 RevenueDepartments at senior levels.

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It is further directed that all concerned landowners whohave continued to occupy the lands shall vacate it upon thedeposit of compensation. MCL shall be immediately grantedpossession of such lands. The Collector or the concernedauthority shall issue a certificate in this regard which shallentitle them to the one-time rehabilitation payment orpayment in lieu of compensation or any other benefit under A

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Athe Act, according to the choice exercised by them in themanner indicated above.

69. It is lastly directed that any fresh dispute, on account ofcalculation of compensation, disbursement of benefits etc., would beadjudicated by the High Court. This court will not entertain miscellaneousBapplication 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, underArticle 142 of the Constitution, since the approach adopted in the previousorders, was to ensure that the landowners are not put to further hardshipCand agony, of prolonged wait. All matters are disposed of in terms of theabove directions. There shall be no order as to costs.

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Divya Pandey

(Assisted by : Adnan Khan, LCRA)

Matters disposed of.

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