The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) PIL No.16945 of 2022 & W.P.(C) No. 26247 of 2021, W.P.(C) Nos. 13241, 17004 & 28562 of 2022 Deepak Vedi & Another ( W.P.(C) PIL No. 16945 of 2022) …. Petitioners Mr. Biswajit Nayak, Advocate Dilip Kumbhar & Others Petitioners (W.P.(C) No. 26247 of 2021) Mr. S.B. Jena, Advocate Rakesh Suna & Others Petitioners (W.P.(C) No. 13241 of 2022) Mr. A. Pradhan, Advocate Anjan Kumbhar & Others Petitioners (W.P.(C) No. 17004 of 2022) Mr. A. Pal, Advocate Ramtanu Deep Petitioner (W.P.(C) No. 28562 of 2022) Mr. B.Ku. Ragada, Advocate -versus- State of Odisha & Others …. Opposite Parties Mr. Debakanta Mohanty, Addl. Govt. Advocate CORAM: THE CHIEF JUSTICE JUSTICE M. S. RAMAN Page 1 of 12 Order No. Dr. S. Muralidhar, CJ. JUDGMENT 31.01.2023 04. 1. These petitions arise out of a similar set of facts concerning the Rehabilitation and Resettlement Scheme for Samaleswari Temple Area Management and Local Economic Initiative (SAMALEI) Plan (‘hereafter ‘the R&R Scheme’) of the Government of Odisha. They
Decision
are, accordingly, being disposed of by this common judgment. 2. W.P.(C) No.16945 of 2022 has been filed as a Public Interest Litigation (PIL) case, whereas the other petitions are by Petitioners seeking relief for themselves. 3. In W.P.(C) No.13241 of 2022, I.A. No.8432 of 2022 had been filed by the Petitioners seeking interim relief. Initially while issuing notice in the said petition on 27th June, 2022 an interim order was passed by this Court directing that no coercive action would be taken against the Petitioners till the next date. Thereafter, this I.A. was heard at length on 12th July, 2022 and the following order was passed: “1. The writ petition prays for quashing of the “Rehabilitation and Resettlement Scheme for SAMLEI Plan” and for a direction to the Opposite Parties “to formulate a new Scheme for the Rehabilitation and Resettlement of the Petitioners in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013” (hereafter the ‘2013 Act’). Page 2 of 12 2. When this petition was heard on 27th June 2022, notice was issued and an interim order was passed by this Court directing that “no coercive action shall be taken against the Petitioners till the next date.” 3. The Petitioners on their own showing are stated to be residing on land which forms part of the Samaleswari Temple Area Management and Local Economic Initiative (SAMALEI) Plan. The Petitioners are stated to be residing on the land since long. Initially they filed a representation on 3rd January, 2022 facing the prospect of their having to be rehabilitated under the SAMALEI Plan. They filed W.P.(C) No.6710 of 2022 in this Court, which came to be disposed of on 12th April, 2022 requiring the Collector, Sambalpur to take a decision on their representation. It appears that a hearing took place on 7th May, 2022 and a copy of the proceedings drawn up pursuant thereto has been annexed as Annexure-B to the counter affidavit filed in the said writ petition. It is inter alia mentioned that “there is no instance of use of any force of coercive measure by any officials connected with the scheme. Hence, the Petitioners are requested to co- operate with the District Administration for smooth implementation of the project.” 4. What is not in dispute as far as the present petition is concerned is that the land which the Petitioners are presently occupying is Government land. What is also not in dispute is that there is no notification for acquisition issued by the Government under the 2013 Act for any part of such land. And that is not surprising because there is no question of Government acquiring its own land under the 2013 Act. Unless there is an acquisition of land in terms of Section 2 of the 2013 Act, the question of the Petitioners seeking any relief of rehabilitation and resettlement in terms of 2013 Act does not arise. 5. Learned counsel for the Petitioners sought to refer to Section 3 of the 2013 Act and the definition of ‘affected family’ and ‘land owner’ therein. The said definitions Page 3 of 12 under Section 3 and other provisions concerning rehabilitation and resettlement under the 2013 Act would be attracted only if there is an acquisition of land in terms of the 2013 Act. In the considered view of the Court, since there is no such acquisition proceedings, the 2013 Act does not come into play at all as far as the present case is concerned. 6. As far as the scheme for rehabilitation is concerned, it applies precisely to persons like the Petitioners, who are in occupation of the Government land, and seeks to rehabilitate them without subjecting them to coercive measures of forcible eviction. Accordingly, the Court there is no reason for the Petitioners to resist such scheme for rehabilitation. 7. The very basis of the present petition that the 2013 Act applies is misconceived. The petition proceeds on an erroneous premise that there is an acquisition of land in terms of 2013 Act when in fact there can be no such acquisition since the land in question is Government land. 8. For the aforementioned reasons, the Court finds that the interim order passed by this Court on 27th June, 2022 cannot continue any longer. The said interim order is hereby vacated. I.A. No.8432 of 2022 is dismissed.” 4. As far as the main writ petition is concerned, i.e., W.P.(C) No.13241 of 2022, parties were permitted to complete pleadings. 5. Aggrieved by the above order dated 12th July, 2022 the Petitioners in W.P.(C) No.13241 of 2022 filed Special Leave Petition (Civil) Diary No.34732 of 2022 in the Supreme Court of India. In the said S.L.P. the following order was passed by the Supreme Court of India on 5th January, 2023: Page 4 of 12 “Learned counsel for the petitioner seeks permission to withdraw this special leave petition. Permission is granted. Hence, this special leave petition is dismissed as withdrawn.” 6. In W.P.(C) No.13241 of 2022, this Court has heard the submissions of Mr. Amitabh Pradhan, learned counsel for the Petitioners and Mr. Debakanta Mohanty, learned Additional Government Advocate (AGA) appearing for the State. 7. Mr. Pradhan submits that the R&R Scheme in question is itself without the authority of law and is contrary to the Constitutional rights of the Petitioners. According to him, the rights of the Petitioners under Article 21 of the Constitution of India cannot be taken away arbitrarily by the State by formulating such a scheme which threatens to forcibly dispossess the Petitioners, who have been residing in the area in question over thirty years, and without any compensation whatsoever. Referring to the rejoinder affidavit of the Petitioners, it is contended that by virtue of the entries in the Record of Rights (ROR) which shows that the Petitioners have been residing in the property for over thirty years, the Petitioners have perfected their title through adverse possession and that cannot be taken away arbitrarily by the State. Reliance is placed on the decision of the Supreme Court of India in Poona Ram v. Moti Ram (D) th. L.Rs. AIR 2019 SC 813. Page 5 of 12 8. The second limb of submission of Mr. Pradhan is that the R&R Scheme is contrary to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act), the Odisha Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Rules, 2016 (2016 Rules), and the Odisha Resettlement and Rehabilitation Policy, 2006 (2006 Policy). He refers to the decision in Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. AIR 1987 SC 1023 and submits that in interpreting the above statute, the context in which it was enacted must be looked at and if so looked at, it will be apparent that it applies to the case on hand notwithstanding that the occupation of the Petitioners is of government land. He asked the Court to look at the definitions of ‘land’ under Section 3(p) of the 2013 Act, ‘land owner’ under Section 3(r) of the 2013 Act, ‘holding of land’ under Section 3(n) of the 2013 Act and ‘affected family’ under Section 3(c)(i) of the 2013 Act. According to him, inasmuch as the Petitioners have erected permanent houses on the land in question they would fall within the definition of owners of immovable property, to whom the 2013 Act would apply. Therefore, according to the Petitioners, the 2013 Act would apply notwithstanding that the land in question is government land. Thirdly, he submits that the benefits under the R&R Scheme have not reached any of the Petitioners and they have a grievance that without any proper relief, they being forced to give up possession of the lands in question. Page 6 of 12 9. Mr. B.K. Ragada, learned counsel appearing for the Petitioners in W.P.(C) No.28562 of 2022, at the outset states that the said Petitioners have no grievance about the Government’s plan for re- development of the area and providing better facilities in an around the temple in question. His grievance is about the Petitioners not being giving the promised benefits of compensation and rehabilitation in terms of the R&R Scheme. According to him, the Petitioners in W.P.(C) No.28562 of 2022 who all belong to the scheduled castes, have been there for substantially long periods of time and are now left remediless on account of forced eviction by the Government. 10. Learned counsel appearing for the Petitioners in W.P.(C) No.17004 of 2022 has the same grievance as the Petitioners in W.P.(C) No.13241 of 2022 and his submission is in the same line. On the other hand, learned counsels appearing for the Petitioners in W.P.(C) Nos.16945 of 2022 and 26247 of 2021 make a grievance limited to the improper implementation of the R&R Scheme. 11. Replying to all of the above submissions, Mr. D.K. Mohanty, learned AGA, first drew attention to the counter affidavit filed by the State in W.P.(C) No.13241 of 2022, where details have been set out regarding the goals of the SAMALEI plan. Inter alia, a comparison has been drawn between the benefits that would accrue under the 2013 Act and under the R&R Scheme in question to show that the facilities under the R&R Scheme are far better for the persons in occupation of the land. For e,g., as regards ‘cost of existing Page 7 of 12 structure’, the Government is prepared to pay actual cost of structure or Rs.50,000/- whichever is higher. Likewise, provisions for transportation cost, rental allowance, rehabilitation grant and so on. There is also provision for housing for those who have a house of not less than 60 sq. mts. in plinth area and in case a family opts not to take house, to be given one-time house building assistance of Rs.3 lacs. Mr. Mohanty held out an assurance on behalf of the Government of Odisha that if any person is aggrieved by improper implementation or non-implementation of the R&R Scheme despite being entitled to the benefits thereunder, the Collector, Sambalpur and other Officials of the State would examine each such grievance and issue appropriate orders and directions for implementation of the R&R Scheme. 12. Mr. Mohanty submitted that as regards the plea of adverse possession, no such plea was raised by the Petitioners in the writ petition itself, but only in the rejoinder. He also relied on a recent decision of this Court in Tophan Kumar Behera v. State of Odisha 2022 (I) ILR-CUT 289 where a plea of adverse possession vis-à-vis the Government land has been negatived by relying on the decisions in Karnataka Board of Wakf v. Government of India (2004) 10 SCC 779, Krishna Murthy S. Setlur v. O.V. Narasimha Setty (2007) 3 SCC 569 and Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729. He submitted that in any event such a plea which would involve examination of disputed questions of fact, cannot be examined in writ proceedings and the Petitioners would be advised Page 8 of 12 to work out their remedies in that regard in other appropriate proceedings. 13. The above submissions have been considered. This Court had in its order dated 12th July, 2022 indicated a prima-facie view about the non-applicability of the 2013 Act to government land. The said order stands affirmed by the dismissal by the Supreme Court of India of the SLP filed by the Petitioners challenging that order. In the said order dated 12th July, 2022 this Court had addressed the issue whether the 2013 Act could at all apply. There the Court noted that there was no dispute that the Petitioners were occupying government land there was no notification for acquisition issued by the Government under the 2013 Act for acquisition of any part of such land. De hors such notification, the question of the question of the Petitioners seeking relief of rehabilitation and resettlement in terms of 2013 Act did not arise. 14. This Court, in the said order, also referred to the definitions of the expressions ‘land owner’ under Section 3(r) of the 2013 Act, and ‘affected family’ under Section 3(c)(i) of the 2013 Act and held that since there is no acquisition proceedings under the 2013 Act those definitions do not “come into play at all as far as the present case is concerned.” The Court is not persuaded to take a different view now. The Court is unable to agree with the submissions that the 2013 Act would apply where the land sought to be acquired is government land. Page 9 of 12 15. As far as the R&R Scheme is concerned, it applies precisely to persons like the Petitioners, who are in occupation of government land. It seeks to rehabilitate them without subjecting them to coercive measures of forcible eviction. It appears to address the human problem of persons residing on such government land for a number of years. If one carefully peruses the R&R Scheme from that perspective, it is clear that many aspects of the rights to life and livelihood of the Petitioners have been sought to be addressed. There is a provision for rehabilitation and resettlement of those losing houses either by granting a Gharabari plot of 60 sq.mts. (650 sq.ft.) having Rayati status. In addition, a one-time house building assistance of Rs.3 lacs is provided. Also, compensation is provided for loss of an existing structure. There is also a rehabilitation grant of Rs.2,57,000/- to the encroachers other than those in the slum areas. Compensation is provided for shopping units and to street vendors. There appears to be merit in the contentions of the Opposite Parties that the benefits provided under the R&R Scheme are an improvement over those contemplated under the 2013 Act. 16. Consequently, the Court is not persuaded that the R&R scheme in question either violates the 2013 Act, the 2016 Rules or the 2006 Policy of the Government of Odisha or any provision of the Constitution of India. It appears to be a scheme to deal with the issues of rehabilitation and resettlement of those who are likely to lose their rights in land even if it happens to be government land. Page 10 of 12 17. It is another matter about the R&R Scheme not being properly implemented. In this context, the Court places on record the assurance of the Government of Odisha that individual cases of improper implementation or non-implementation of the R&R Scheme will be promptly addressed by the Officials and sought to be redressed within the legal framework. 18. Coming to the plea of adverse possession, the Court would like to reiterate its decision in Tophan Kumar Behera (supra) that there is a heavy burden on a person seeking to assert such a right, to lay the factual and legal basis for such claim in appropriate pleadings. Such a right can possibly claimed in proceedings in the Civil Court in which the documents, i.e., entries in the ROR sought to be relied on by the Petitioners in W.P.(C) No.13241 of 2022 will have to be proved in accordance with law. Writ proceedings are not appropriate for that purpose. It is clarified that the dismissal of the present writ petition by itself will not preclude the Petitioners from seeking to establish their rights on the above basis in other appropriate proceedings in accordance with and if permissible in law. 19. As regards the general grievance made by the Petitioners about non-implementation or faulty implementation of the R&R Scheme in their individual cases, a direction is issued to the Collector, Sambalpur that if any representation from any such individual is received, not later than 3rd April, 2023, then after examining each such representation and preferably after giving a hearing on dates to be informed at least seven days in advance, a reasoned order will be Page 11 of 12 passed thereon preferably within a period of three months thereafter. If aggrieved by such order, it will be open to the individual concerned to seek appropriate remedies in accordance with law. 20. The writ petitions are, accordingly, disposed of in the above terms. 21. A copy of this judgment be sent to the Collector, Sambalpur forthwith. Chief Justice (Dr. S. Muralidhar) Judge (M. S. Raman) MRS/Laxmikant Page 12 of 12