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IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. Mishra, Savitri Ratho, JJ.
Biresh Chandra Naik & Ors. - Appellants
Versus
State Of Odisha & Ors. - Respondents
W.P.(C) No. 7677 of 2021
Decided On : 27-09-2021
PESA Act - Land Oustees - Panchayats (Extension to Scheduled Areas) Act, 1996 - Summary of Acts and Sections: The court discussed the applicability of the PESA Act, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013. The court found that the PESA Act was not applicable to the land acquisition made in 1991, and the provisions of the Forest Rights Act were not applicable as the petitioners were not traditional forest dwellers. The court also determined that the petitioners were not entitled to receive compensation under the RTFCATILA, RAR Act, 2013. The Orissa Rehabilitation and Resettlement Policy, 2006 was found not to be violative of the prevailing law.
Fact of the Case:
The petitioners, land oustees affected by the Deo Irrigation Project, sought mandamus to extend assured benefits under the PESA Act and claimed non-compliance with the law by the authorities. The authorities had issued notices to demolish their houses and resettle, which the petitioners resisted.
Finding of the Court:
The court found that the PESA Act was not applicable to the land acquisition made in 1991, and the Forest Rights Act did not apply as the petitioners were not traditional forest dwellers. The petitioners were not entitled to compensation under the RTFCATILA, RAR Act, 2013. The Orissa Rehabilitation and Resettlement Policy, 2006 was not violative of the prevailing law. The court dismissed the petitioners' claim for higher compensation.
Issues: The issues included the applicability of the PESA Act, the Forest Rights Act, and the RTFCATILA, RAR Act, 2013, as well as the compliance of the Orissa Rehabilitation and Resettlement Policy, 2006.
Ratio Decidendi: The court held that the PESA Act was not applicable to the land acquisition made in 1991, and the Forest Rights Act did not apply as the petitioners were not traditional forest dwellers. The petitioners were not entitled to compensation under the RTFCATILA, RAR Act, 2013. The Orissa Rehabilitation and Resettlement Policy, 2006 was not violative of the prevailing law. The court also emphasized the importance of the larger interest of development in the area.
Final Decision: The court dismissed the petitioners' claim for higher compensation, stating that their resistance to the development work without reasonable basis was not justified.
Key Points: - The PESA Act is held not applicable to the 1991 land acquisition under the L.A. Act for Deo Irrigation Project. (!) - The Forest Rights Act, 2006 is held not applicable since petitioners are not proven traditional forest dwellers or ST members. (!) - The RTFCATILA, RAR Act, 2013 applies to lapsing or continuation of L.A. proceedings, with award already made in 1998 and compensation paid by 2003; petitioners’ claim for higher compensation is rejected. (!) (!) (!) (!) (!) (!) (!) (!) (!) - The Orissa Rehabilitation and Resettlement Policy, 2006 is not found to violate prevailing law and is acknowledged as implemented for oustees; most other oustees have been rehabilitated or compensated. (!) (!) - The petitioners’ suppression of material facts regarding compensation and rehabilitation is noted and influences the judgment. (!) (!) (!) - The court emphasizes larger development interests and dismisses the petition for higher compensation. (!)
JUDGMENT
S.K. Mishra, J. - In this writ application, the petitioners, being the land oustees pray for issuance of writ of mandamus directing the opposite parties to extend the assured benefit to the petitioners in following Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996, hereinafter called as PESA Act for brevity, by following the specific guidelines framed by the opposite party no.1 under the Orissa Rehabilitation and Resettlement Policy, 2006.
2. The petitioners claim that they are permanent residents of submerged area under the Deo Irrigation Project, Karanjia in the district of Mayurbhanj. They are agriculturists by profession. The immovable properties of the petitioners recorded in the record of rights have been acquired by the opposite parties for the purpose of Deo Irrigation Project. They also claimed that certain portion of their land is situated within the forest area. The petitioners, being the forest dwellers have maintained their families out of the forest products. The petitioners are identified as affected family and are coming under the submerged area of the Deo Irrigation Project. The opposite parties adopted a Rehabilitation and Resettlement Policy without having the sanctity of law and decided to pay financial package, give alternative land to the displaced petitioners, without adhering to the mandatory provisions of PESA Act. They also claim that the opposite parties have not adhered to the provisions of Schedule Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and the principles settled by the Honble Supreme Court in the matter of Orissa Mining Corporation Ltd. vs. Ministry of Environment and Forest prior to acquisition of land of the petitioners. Being aggrieved by the action of the authorities, the petitioners have made representations to the Special Land Acquisition Officer, but it yielded no result.
The petitioners claim that the authorities did not follow the rule of law and issued notice on dated 14.12.2020 to the petitioners with a direction to demolish their houses by 31.01.2021 and resettle themselves in other places and to cooperate for completion of Deo Irrigation Project. The authorities also threatened the petitioners vide a public notice bearing no.55 dated 29.01.2021 to demolish their structure.
The positive case of the petitioner nos. 1 and 2 is that they have not received compensation and petitioner nos. 3 and 4 received compensation whereas the alternative land of Ac.0.05 decimal has not been processed in favour of the petitioners till date. Such inaction of the opposite parties violates the Article 300-A of the Constitution and needs to be interfered with. In such factual background, the writ petition has been filed.
3. The opposite party nos. 2 to 4 filed counter affidavit stating that a Palli Sabha (Gram Sabha) was convened in village Devigada on 04.06.2004 under the Chairmanship of Ward Member Smt. Soudamini Naik in presence of the then Sarapanch of Dudhiani Gram Panchayat Sri Krushna Chandra Naik and the Special Land Acquisition Rehabilitation Officer, Mayurbhanj. In that Palli Sabha, there were 22 members of village Devigada present including the present petitioners, namely, Biresh Chandra Naik and Swaroop Chandra Naik. So, the opposite parties denied that there has been a violation of the provisions of the PESA Act.
As regards resettlement and rehabilitation of displaced families, Government have been implementing Resettlement & Rehabilitation Policy for oustees of different projects including major and medium irrigation projects from time to time by fixing financial package and it is uniform across the State. Later, the Government brought a new policy, namely, Orissa Resettlement and Rehabilitation Policy, 2006 and the petitioners have been approved as displaced families and sanctioned with the benefit under the said policy as applicable to other displaced families of submerged area of Deo Irrigation Project. The petitioners h
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