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

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A the Scheduled Castes in the affected areas shall continue in the resettlement area. (2) Whenever the affected families belonging to the Scheduled Tribes who are residing in the Scheduled Areas referred to in the Fifth Schedule or the tribal areas referred to in the Sixth B Schedule to the Constitution are relocated outside those areas, than, all the statutory safeguards, entitlements and benefits being enjoyed by them under this Act shall be extended to the area to which they are resettled regardless of whether the resettlement area is a Scheduled Area referred to in the said C Fifth Schedule, or a tribal area referred to in the said Sixth Schedule, or not. (3) Where the community rights have been settled under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007), the same shall be quantified in monetary amount D and be paid to the individual concerned who has been displaced due to the acquisition of land in proportion with his share in such community rights.”

66Copy pinpoint66. As is evident, the R&R Act, 2013 has nuanced application and makes special provisions to prevent hardships to members of the E Scheduled Caste and Scheduled Tribe communities. Section 41 requires review exercises to ensure that the least possible harm befalls SC/ST members living in the areas sought to be acquired. It also mandates that formulation of a development plan and protective provisions invalidating alienation of tribal lands or lands belonging to the SC/ST in disregard of laws and regulations as null and void. Section 42, on the other hand ensures that all benefits, including reservation benefits available to SC/ ST in the affected area shall continue in the resettlement area. In this case, the land owners were displaced on account of the acquisition in favour of MCL, which is entirely involuntary. It is not in dispute that these displaced families/land owners are residents of the Fifth Schedule Areas.

67Copy pinpoint67. As far as Section 41 goes, in the opinion of this court, given that the acquisition notification was issued in 1988 and finalised in 1990 and even the judgment of this court indicating the methodology for compensation determination was delivered in 2010, the question of giving

MAHANADI COAL FIELDS LTD. & ANR. v. MATHIAS ORAM 1187 & ORS. [S. RAVINDRA BHAT, J.]

extra consideration in terms of Section 41 does not arise. However, A since the resettlement of the displaced families and their rehabilitation have been mandated by both provision of the R&R Act, 2013 which has application to the ongoing acquisition, as well as the R&R Policy 2006 , the obligation to ensure that the benefits of the displaced persons are not put to grave and irreparable prejudice by denying them their status as B SC/ST, has to be ensured. This is mandated by Section 42 of the R&R Act, 2013 which directs that whenever lands of SCs/STs are acquired necessitating their displacement, either in terms of territories or the areas they reside in, leading to their movement to other areas - where their tribe or caste may not necessarily be recognised as SCs/ST - the status which they enjoy but for the displacement has to be preserved and protected. In the opinion of this court, this statutory mandate and obligation cannot be denied by the State or agency, as a matter of law. As a result of the above discussion, it is held that: i. The facilities and amenities set out in the Third Schedule to the R&R Act, 2013 have to be necessarily provided to the displaced families involved in this case in the resettlement areas where they are located and where they ultimately move to; and ii. In this case, all members of SC/ST who are forced to move from their lands on account of the acquisition do so involuntarily. They are consequently entitled to the right to be treated as members of the SC/ST. The State authorities shall ensure that members of the families who are displaced and whose lists are maintained by the Commission as well as MCL shall be issued with fresh SC/ST certificates. C. Conclusions and Directions F

68Copy pinpoint68. Having regard to the following discussion, it is held as follows: i. Re point no.1 - compensation for the land acquired: cut-off date for determining compensation for land acquired is to be based upon the cut-off date approved by this court in G relation to village Gopalpur, i.e., September 2010. At the same time, it is directed that since common cut-off date has been accepted, all benefits flowing from it, including statutory interest upon compensation and solatium, is determinable on the basis of that cut-off date for the entire acquisition. H

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A ii. Re point no. 2 – on the applicability of the R&R Act, 2013: the R&R Act cannot apply prior to the date it was brought into force i.e., before 01.01.2014. In the present case, it applies from the date the Central Government issued a notification bringing into force the proceedings of the First, Second and Third Schedules to the enactment specified in the Fourth Schedule, which in this case was the CBA Act. The date therefore, on which the R&R Act, 2013 is applicable from, is 28.08.2015. Additionally, the report which was finalised before that date cannot be interfered with. The land owners and displaced families residing in the villages for which reports were prepared earlier than 28.08.2015, would not therefore be entitled to the benefits of the R&R Act, 2013. Hence, the benefits of the R&R Act apply to displaced families and land owners of Kiripsira, Ratansara, Jhupuranga and Tumulia. D iii. Re point no. 3, 4 and 5: a. It is held that the R&R Policy 2006 as amended by the 2013 policy applies for the purpose of employment benefits. b. A family unit would comprise of head of family or father, a major son, and an unmarried daughter having regard to the definition and the note appended thereof. In case, for some reason, the major son cannot be given employment, and there exists a major grandson, he would then be eligible for consideration. In other words, two members (father and son or father and grandson) would be eligible for employment and not three, in addition to the unmarried daughter who is also to be treated as separate unit. c. This court is of the opinion that the Commission could not reopen determinations based upon change of policies of the State given that the benefits adjudicated by it based on factual determinations has crystallised. In many cases, MCL has actually provided employment to several individuals. Consequently, it is held that all cases that have been adjudicated and were approved by this court cannot be reopened.

MAHANADI COAL FIELDS LTD. & ANR. v. MATHIAS ORAM 1189 & ORS. [S. RAVINDRA BHAT, J.]

iv. Re point no. 6: A a. On the point of housing plots, it is hereby declared and directed that the State and MCL are under an obligation to ensure that the land acquired by it in those areas which are to be developed, have to be developed. The State Government shall ensure that at least three nodal officers from the departments concerned are deployed for facilitating this task of coordinating with all agencies and ensuring that the development of the plots duly takes place to enable the Collector to make the necessary allotments within the time indicated. These nodal officials shall be duly empowered by the state, through appropriate notifications to issue all necessary consequential orders, for the implementation of resettlement and rehabilitation measures. The Chief Secretary of the Orissa State Government shall select the officers, and issue the necessary notifications. Furthermore, the State shall ensure that these officers are not posted out, for at least 3 years, or till the task of rehabilitation and resettlement is completed. b. The Collector shall ensure that the plots earmarked are duly notified for the concerned villages and land owners by giving due publicity and adequate notice. The views of the landowners shall be ascertained and noted, for which purpose, adequate notice shall be given, specifying the venue, date and time of consultation. F c. In case any individual land owner(s) are not interested for allotment of the plots, it is open for them to state so. The Collector shall in such event record their disclaimer expressly in writing and issue a certificate. In that event the displaced family would G be entitled to a one-time cash settlement of 25 lakhs. d. After ascertaining the number of displaced families’ entitlements, and having regard to the availability of plots, the Collector shall conduct a draw of lots, and if needed, more than one draw of lots, whereby plots H

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A are allotted to the concerned displaced families. In case, for any reason such plot or plots cannot be handed over within two years, or are not available, the leftover families so to say would be entitled to the one-time compensation of 25 lakhs with interest @ 7% per annum, for two years. B v. Re point no. 7: a. The State shall ensure that all facilities and amenities are developed in accordance with the Third Schedule to the R&R Act, 2013 within three years in which C plots are handed over to the displaced families or in any event within three years from the date of this judgment. The necessary funding for this purpose shall be by MCL, in addition to the State’s obligation to spend its resources. D b. The members of the SC/ST communities shall be entitled to the preservation and protection of their status in view of Section 42 of the R&R Act, 2013. Consequently, the concerned Collectors shall ensure that appropriate caste certificates are issued in this regard, given that land owners have been moved involuntarily and would have to migrate to other areas. vi. This court further directs that compensation determination in any event shall be completed and payments made within six months from today. The Commission shall ensure that this task is taken up as far as possible and completed within that time frame. Consequently, the Commission shall finalize the reports for villages Kiripsira and Ratansara. As regards the reports of Jhupuranga, and Tumulia, the Commission shall complete the task of redetermining compensation within three months. The State shall ensure that compensation in respect of four villages is determined in accordance with the R&R Act, 2013. Wherever compensation has not actually been disbursed, the State shall do so within 6 months from pronouncement of this judgment. vii. MCL is under an obligation to ensure that employment benefits are granted and extended and offers are made in H

MAHANADI COAL FIELDS LTD. & ANR. v. MATHIAS ORAM 1191 & ORS. [S. RAVINDRA BHAT, J.]

accordance with the 2013 policy in all cases where the lists of those who opted for employment has not been finalised. It is clarified in this regard that wherever employment has been obtained, the same shall not be reopened. Likewise, the question of reopening entitlements for employment, based upon the interpretation of this court shall not be reopened in case of villages where reports have been accepted through previous orders. viii. In the event any family undertakes that its members are not desirous or do not wish to opt for employment, the State shall, through the nodal officers, ensure that the disclaimer is voluntary, and that one-time compensation indicated in the 2006 policy or under the R&R Act, 2013 or the one- time offer of Rs 16 lakhs by MCL, as submitted by the learned ASG (whichever is more beneficial), is paid to the family concerned. The Collector must ensure the same is provided. D ix. The court hereby directs that the Commission should complete its task and that its report should be the basis for disbursement of compensation, one-time rehabilitation package of 25 lakhs per family as indicated above and employment offer within one year from today. In case of any vacancy in the Office of Chairman of the Commission, the Chief Justice of the Orissa High Court shall nominate a retired judge of that court. In the event of any other vacancy, the Government of Orissa shall nominate the concerned members. However, it is clarified that the government nominees should not be ex-officio or part time members, and should be of the rank and status of Additional Secretary, with experience in the Social Welfare or Revenue Departments at senior levels. x. It is further directed that all concerned landowners who have continued to occupy the lands shall vacate it upon the deposit of compensation. MCL shall be immediately granted possession of such lands. The Collector or the concerned authority shall issue a certificate in this regard which shall entitle them to the one-time rehabilitation payment or payment in lieu of compensation or any other benefit under H

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A the Act, according to the choice exercised by them in the manner indicated above.

69Copy pinpoint69. It is lastly directed that any fresh dispute, on account of calculation of compensation, disbursement of benefits etc., would be adjudicated by the High Court. This court will not entertain miscellaneous application in individual cases in this regard.

70Copy pinpoint70. It is hereby recorded that the directions made in this judgment, are in the exercise of its special powers to do justice to the parties, under Article 142 of the Constitution, since the approach adopted in the previous orders, was to ensure that the landowners are not put to further hardship and agony, of prolonged wait. All matters are disposed of in terms of the above directions. There shall be no order as to costs.

Divya Pandey Matters disposed of. (Assisted by : Adnan Khan, LCRA)