Mahanadi Coalfields Ltd vs State Of Odisha

Murahari Sri Raman, J.—

CHALLENGE IN W.P.(C) NO.8891 OF 2018:

The petitioner-Mahanadi Coalfields Ltd., a subsidiary of Coal India Ltd. incorporated under the Companies Act, 1956, carrying out mining of coal in different areas of State of Odisha, namely Bharatpur Area, Talcher Area, Jagannath Area, Lakhanpur Area and Ib Valley Area, etc., laid challenge to Order dated 15th November, 2017 passed by the Collector, Jharsuguda, in Misc. Case No.07/2017 (under Resettlement & Rehabilitation Policy, 2006), wherein the opposite party No.5-Jigyansu Sekhar Barik, second son of Tobraj Barik of Ubuda in the district of Jharsuguda, being nominated in preference to Ghanashyam Barik elder son of Tobraj Barik, is directed to be considered by the petitioner-Mahanadi Coalfields Ltd. for employment under the Odisha Resettlement and Rehabilitation Policy, 2006.

CHALLENGE IN W.P.(C) NO.10144 OF 2018:

The petitioner-Jigyansu Sekhar Barik, claiming to be nominee of his father, Tobraj Barik, assails Communications of General Manager, Mahanadi Coalfields Ltd., Lakhanpur Area vide Letter No. MCL/GM/LKPA/L&R/ 17-18/785, dated 31st July, 2017 addressed to the Additional District Magistrate, Jharsuguda and Letter No. MCL/GM/LKPA/L&R/ 17-18/872, dated 27th September, 2017 addressed to Ghanashyam Barik, son of Tobraj Barik, whereby in consideration of representation dated 10.05.2017 filed pursuant to direction of this Court vide Order dated 01.06.2017 in W.P.(C) No.10334 of 2017, for employment under the Odisha Resettlement and Rehabilitation Policy, 2006, has been rejected as Jigyansu Kumar Barik is found minor as on the cut-off date, i.e., 11.02.2014.

REFERENCES FOR THE SAKE OF CONVENIENCE:

In this Judgment unless otherwise mentioned, the reference of parties are in accordance with their respective positions as found mentioned in W.P.(C) No.8891 of 2018 filed by Mahanadi Coalfields Ltd.

FACTS OF THE CASE:

Facts as adumbrated by the petitioner-Mahanadi Coalfields Ltd. (“MCL”, referred to for short) in W.P.(C) No.8891 of 2018 reveals that Sadhu Charan Barik having share of 21.76 Ac. land out of total 43.52 Ac. in Khata No.73 stood in the name of recorded tenant, namely Minaketan Barik, his son Prafulla Barik was found eligible for employment whereas his other two sons, namely Tobraj Barik and Akshyaya Barik were not found eligible for such benefit as they were minors on the cut-off date, i.e., the date of publication of preliminary Notification dated 16.01.1982 (vide Gazette of India No.3, dated 16.01.1982) issued under Section 4(1) of the Coal Bearing Areas (Acquisition and Development) Act, 1957 (referred to as “CBA Act” for brevity) during the first and second phase of assessment. However, in the third phase of acquisition process, though the opposite party No.3-Tobraj Barik, (“Tobraj”, for short) having attained majority, was found eligible, he nominated one of his sons, namely Ghanashyam Barik-opposite party No.4 (referred to as “Ghanashyam”) for employment. It is the case of the petitioner-MCL that pursuant to direction of this Court vide Order dated 01.06.2017 in W.P.(C) No.10334 of 2017 (filed at the behest of Ghanashyam), in consideration of representation, notices dated 12.06.2017 and 18.06.2017 were issued for medical examination, to which Ghanashyam did not respond, yet in his place further nomination of his brother, namely Jigyansu Sekhar Barik-opposite party No.5 (for convenience referred to as “Jigyansu”) is made for employment, as he is one of the members of the “displaced family” on account of acquisition of land. The petitioner urges that since Jigyansu was a minor on the cut-off date, such nomination is not acceptable. The petitioner, being aggrieved by the following direction of the opposite party No.2-Collector, Jharsuguda in Misc. Case No.07/2017 vide Order dated 15.11.2017 (Annexure-7), approached this Court invoking Article 226/227 of the Constitution of India:

“*** Jigyansu Sekhar Barik, son of Tobraj Barik be considered for employment under Resettlement and Rehabilitation Policy by the MCL Authority.”

3.1. While supporting the Order dated 15.11.2017 passed by the Collector, Jharsuguda, in the Counter-affidavit it has been contended by the opposite party No.2 that as Ghanashyam (opposite party No.4), having attained majority as on the date of passing of the Award on 11.02.2014, is treated to be “separate family” in terms of Paragraph 2(f)(i) of the Odisha Resettlement and Rehabilitation Policy, 2006 (herein after be referred to as “ORR Policy”) read with Paragraph 2 of the “PROCEEDINGS OF THE REHABILITATION & PERIPHERY DEVELOPMENT ADVISORY COMMITTEE (RPDAC) FOR MCL IN JHARSUGUDA DISTRICT”, dated 21.07.2007. It is further stated by the opposite party No.2-Collector, Jharsuguda in his Counter-affidavit that in the third phase of acquisition, the opposite party No.3-Tobraj was found eligible for employment as his ancestral landed property along with residential house got vested on 11.02.2014. Since he crossed the age limit fixed for employment and his son Ghanashyam-opposite party No.4 was treated as “separate family”, the case of the opposite party No.5-Jigyansu has been rightfully considered by the authority as he has a share in said property which is acquired by MCL.

3.2. In its Counter-affidavit, the opposite party No.3-Tobraj inter alia took the stand that Ghanashyam-opposite party No.4 being major is treated to be a “separate family” in terms of ORR Policy, 2006, as amended vide Resolution No.29828-R&REH-1/2013/R&DM, dated 05.08.2013 issued by the Revenue & Disaster Management Department, published in the Extraordinary issue of the Odisha Gazette No.1546, dated 05.08.2013.

3.3. Claiming to have been nominated by his father-Tobraj (opposite party No.3), who crossed age limit for employment, Jigyansu (opposite party No.5) filed Counter-affidavit affirming that on the date of the Award in the third phase of acquisition, which is the cut-off date, i.e., 11.02.2014, he is eligible to get the employment under the ORR Policy, as his elder brother namely, Ghanashyam (opposite party No.4) is treated to be “separate family” in view of definition of “family” contained in Paragraph 2(f)(i) of the ORR Policy read with Resolution No.29828-R&REH-1/2013/ R&DM, dated 05.08.2013 issued by the Revenue & Disaster Management Department.

ARGUMENTS ADVANCED BY THE RESPECTIVE PARTIES:

Sri Debaraj Mohanty, learned counsel for the petitioner-MCL laid stress on the point that the family of Sadhu Charan Barik, who was father of Tobraj Barik and grandfather of Ghanashyam Barik and Jigyansu Sekhar Barik, got the benefit under the ORR Policy. Furthermore, on the cut-off date Jigyansu-opposite party No.5 was minor. Therefore, by virtue of subsequent nomination by his father-Tobraj, Jigyansu cannot be considered eligible for employment under the ORR Policy as directed by the Collector, Jharsuguda.

4.1. Mr. Debaraj Mohanty, learned counsel appearing for MCL vehemently opposing the finding of fact by the Collector, Jharsuguda submitted referring to Counter-affidavit filed by MCL in W.P.(C) No.10144 of 2018 (Jigyansu Sekhar Barik Vrs. State of Odisha & Others) that “the father of the petitioner nominated the name of his elder son, i.e., Ghanashyam Barik being the major grandson of the recorded tenant, i.e., Sadhu Charan Barik for employment and not the present petitioner as he was minor as on the cut-off date, i.e., 11.02.2014 and not considered as separate family”. Per contra Sri Niranjan Maharana, counsel appearing for the opposite party Nos.3 to 5 and Sri Amiya Kumar Mishra, learned Additional Government Advocate for the opposite party Nos.1 and 2 made submission that such contention is contrary to the ORR Policy, 2006 as stood amended by virtue of Resolution No.29828-R&REH-1/2013/R&DM, dated 05.08.2013 issued by the Revenue & Disaster Management Department read with “PROCEEDINGS OF THE REHABILITATION & PERIPHERY DEVELOPMENT ADVISORY COMMITTEE (RPDAC) FOR MCL IN JHARSUGUDA DISTRICT”.

RELEVANT PROVISIONS:

Before adverting to the rival submissions canvassed on either side, provisions so far as relevant for the purpose of adjudication of the question raised in the instant case are reproduced.

THE ORR POLICY, 2006 vide RESOLUTION NO.18040-R&REH-1/2006-R, DATED 14.05.2006 ISSUED BY THE GOVERNMENT  OF  ODISHA  IN  REVENUE  DEPARTMENT, PUBLISHED IN EXTRAORDINARY ISSUE OF THE GAZETTE OF ODISHA NO.651, DATED 15.05.2006 AS AMENDED BY VIRTUE OF RESOLUTION NO.29828-R&REH-1/2013/R&DM, DATED 05.08.2013 ISSUED BY THE REVENUE & DISASTER MANAGEMENT DEPARTMENT:

“1. Short title, application and commencement.—

(i) This  policy  may  be  called  as  “THE  Substituted for “Orissa” Resolution No.29828-R&REH-1/2013/R&DM, dated 05.08.2013. [ODISHA] RESETTLEMENT AND REHABILITATION POLICY 2006” and shall come into effect from the date of its publication in the Odisha Gazette.

(ii) It shall apply to all those projects for which acquisition of private land under Land Acquisition Act, 1894 or under any other laws for the time being in force or proclamation inviting objections in case of Government land is notified.

(iii) This shall also be applicable to all projects for which land is acquired through negotiation under the provisions of this policy.

Definitions.—

***

(c) “Cut-off date” for the purpose of compensation shall be the date on which the notification declaring the intention to acquire land under the relevant Act or under the provisions of this policy is published.

Note.—

For the purpose of declaring eligibility for R and R benefits, the list of displaced families will be updated on the first of January of the year in which physical displacement is scheduled to take place provided that those families who move into the project area after determination of the “cut-off” date will not be eligible for any benefits.

(d) “Displaced family” means a family ordinarily residing in the project area prior to the date of publication of notification under the provisions of the relevant Act and on account of acquisition of his/her homestead land is displaced from such area or required to be displaced.

***

(f) “Family” means 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 for his/her livehoods.

Note:—

Each of the following categories will be treated as a separate family for the purpose of extending rehabilitation benefits under this policy.

(i) Substituted for “A major son irrespective of his marital status” Resolution No.29828- R&REH-1/2013/R&DM, dated 05.08.2013. Since this amendment is made to clarify and restate the provision of the ORR Policy, 2006, it takes retrospective effect from the date of commencement of the said Policy, i.e., 15.05.2006. [A major son/grandson irrespective of his marital status].

(ii) Substituted for “Unmarried daughter/sister more than 30 years of age” Resolution No.29828- R&REH-1/2013/R&DM, dated 05.08.2013. This amendment shall take effect from the date of issue of this Resolution, i.e. 08.08.2013 [Major unmarried daughter/major unmarried grand daughter/major unmarried sister].

(iii) Physically and mentally challenged person irrespective of age and sex; (duly certified by the authorized Medical Board).

For  this  purpose,  the  blind  the  deaf/the orthopedically handicapped/mentally challenged person suffering from more than 40% permanent disability will only be considered as separate family.

(iv) Minor orphan, who has lost both his/her parents.

(v) A widow or a woman divorcee.

(g) “Government” means the Government of Orissa in Revenue Department.

***

(o) “Rehabitation & Periphery Development Advisory Committee (RPDAC)” means the Committee constituted by the Government under relevant provisions of this Policy by Government to look after rehabilitation and periphery development matters.

***

Project Types.—

For the purpose of R&R benefits under this Policy, Development Projects are classified into the following types:

A. Industrial Projects;

B. Mining Projects;

C. Irrigation Projects, National Parks and Sanctuaries;

D. Urban Projects and Linear Projects like roads and railways, power lines; and

E. Any other Projects.

***

Rehabilitation Assistance.—

Rehabilitation Assistance will be specific to the ‘type’ of project as mentioned at paragraph 5 above, because of difference in nature of projects, their source(s) of funding and magnitude of displacement/impact.

***

II. Type B: Mining Projects.—

(a) Employment:

Displaced and other affected families shall be eligible for employment, by the project causing displacement. For the purpose of employment, each family will nominate one member of the family.

The project proponent will give preference to the nominated members of the displaced and affected families in the matter of employment. The order of preference will be as follows:

(i) Displaced families losing all land including homestead land,

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

(iii) Families losing all agricultural land but not homestead land,

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

(v) Displaced families losing only homestead land but not agricultural land,

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

The Project authority will make special efforts to facilitate skill up-gradation of the nominated member of the displaced family to make him/her ‘employable in their project.

In case of nominees of displaced families eligible for employment otherwise; the upper age limit shall be relaxed by five years.

Project authorities should notify their employment capacity sufficiently in advance.

As far as practicable, the objective shall be to provide one member from each displaced/other family as mentioned above with employment in the project. However, where the same cannot be provided because of reason to be explained in writing, cash compensation as mentioned below shall be provided to such families. Families, who do not opt for employment/self-employment as mentioned in sub para (a) above and (b) below, shall be provided by the Project authority with one-time cash assistance in lieu of employment at the scale indicated below:

Sl.

No.

Families  under  category  as  per sub-para (a) above

Amount  of  one time   cash assistance

(Rs. in lakhs)

(i)

Displaced        Families        coming

under category (i)

5.00

(ii)

Displaced        Families        coming

under category (ii)

3.00

(iii)

Families  coming  under  category

(iii)

2.00

(iv)

Families  coming  under  category

(iv), (v), and (vi)

1.00

(b) Training for Self-employment:

Project authority under the guidance of the Collector concerned will make adequate arrangement to provide vocational training to at least one member of each displaced Tother family so as to equip him/her to start his/her own small enterprise and refine his/her skills to take advantage of new job opportunities. For those engaged in traditional occupations/ handicrafts/ handlooms, suitable training shall be organized at the cost of project authority to upgrade their existing skills.

(c) Convertible Preference Share:

At the option of the displaced family the project authority may issue convertible preference share upto a maximum of 50% out of the one-time cash assistance as mentioned in sub para

(a) above.

(d) Provision for homestead land:

Subject to availability, each displaced family will be given at least 1/10th of an acre of land free of cost in a resettlement habitat for homestead purpose.

(e) Assistance for Self-relocation:

Each of the displaced family who opts for self-relocation elsewhere other than the Resettlement habitat shall be given a one-time cash grant of Rs.50,000/- in lieu of homestead land

(f) House Building Assistance:

Besides, Project authority shall construct house for each displaced families in the resettlement habitat or provide house building assistance of Rs.1,50,000/- to each of the displaced family settling in the Resettlement habitat or opting for self-relocation elsewhere.

(g) Shops and Service Units: Project authorities will also construct shops and service units at feasible locations at their own cost, which will be allotted in consultation with Collector to project displaced families opting for self-employment. While allotting such units, preference will be given to physically challenged persons and members of displaced SC & ST families.”

CLARIFICATION DATED 31.08.2012 OF GOVERNMENT OF ODISHA IN REVENUE AND DISASTER MANAGEMENT DEPARTMENT ADDRESSED TO ALL COLLECTORS:

“Sub: Clarification on providing rehabilitation benefits to the grandsons of land losers.

Sir,

In inviting a reference to this Department Letter No. 46583 dated 15.11.2010 and Momo No. 46584 dated 15.11.2010 on the subject mentioned above, I am directed to say that after careful reconsideration of the matter, Government have been pleased to decide as follows in supersession of the previous clarification issued vide this Department letter No.46583 dated 15.11.2010:

‘As major sons of land losers irrespective of their marital status are not part of family as per definition of family provided under para 2(f) of the Odisha R&R Policy 2006 and are treated as ‘separate family’ for the purpose of extending rehabilitation benefits under the Policy; a grandson who has attained the age of 18 years on or before the cut-off date would be eligible to be treated as a separate family for the purpose of extending rehabilitation benefits subject to the terms and conditions of Odisha R&R Policy 2006.’

This is for your information and necessary action.”

THE RESETTLEMENT AND REHABITATION POLICY OF COAL INDIA LTD. ISSUED IN MAY, 2008:

“11. Definition of Project Affected Family (PAF).—

‘affected family’ means:

(i) a family whose primary place of residence or other property or source of livelihood is adversely affected by the acquisition of land for a project or involuntary displacement for any other reason; or

(ii) any tenure holder, tenant, lessee or owner of other property, who on account of acquisition of land (including plot in the abadi or other property) in the affected area or otherwise, has been involuntarily displaced from such land or other property; or

(iii) any agricultural or non-agricultural labourer, landless person (not having homestead land, agricultural land, or either homestead or agricultural land), rural artisan, small trader or self-employed person, who has been residing or engaged in any trade, business, occupation or vocation continuously for a period of not less than three years preceding the date of declaration of the affected area, and who has been deprived of earning his livelihood or alienated wholly or substantially from the main source of his trade, business, occupation or vocation because of the acquisition of land in the affected area or being involuntarily displaced for any other reason.

“Family” includes a person, his or her spouse, minor sons, unmarried daughters, minor brothers, unmarried sisters, father, mother and other relatives residing with him or here and dependent on him or her for their livelihood; and includes ‘nuclear family’ consisting of a person, his or her spouse and minor children; ated

It is Coal India’s policy to recognize adult individuals as the unit of entitlement. In their rehabilitation efforts subsidiaries deal with a wide range of project-affected people. ***”

“PROCEEDINGS OF THE REHABILITATION & PERIPHERY DEVELOPMENT ADVISORY COMMITTEE (RPDAC) FOR MCL IN JHARSUGUDA DISTRICT”, DATED 21.07.2007:

“Paragraph 2:

MCL authorities raised the issue of fixation of ‘cut-off date’ for employment, especially for the villages covered under CBA Act which is to be fixed in RPDAC meeting as and when necessary. Hon’ble MP, Deogarh P/C reacted on it and stated that this problem has already been sorted out during the RAC held on 17.05.2005, that the date of Award of compensation in the village shall be the cut-off date for employment under CBA Act. It was emphasized further that the time lag between date of notification and actual acquisition, needs to be narrowed to avoid discontentment among people. The RDC, (ND) advised MCL authorities to implement the decisions already taken.

***

Paragraph 6:

To overcome the day-to-day recurring problems, it was unanimously decided to constitute a Sub-Committee to take decision on behalf of RPDAC, which will sit once in a month and decide on all issues. RPDAC shall decide only the broad frame, guidelines and critical matters, if any. The members of the proposed Sub-Committee were as follows:

Collector & District Magistrate … Chairperson

Superintendent of Police … Member

Concerned Hon’ble M.P. … Member

Concerned Hon’ble M.L.A. … Member

President, Zilla Parishad … Member

2 Members of M.C.L. … Member

Land Acquisition Officer/

Special Land Acquisition Officer … Convener”

ANALYSIS AND DISCUSSIONS:

Having heard Sri Debaraj Mohanty, the learned counsel appearing for the petitioner-MCL, Sri Amiya Kumar Mishra, learned Additional Government Advocate for the opposite party Nos.1 and 2 and Sri Niranjan Maharana, learned Advocate for the opposite party Nos.3 to 5 and gone through the materials on record, the question that falls for consideration is whether the view expressed by the Collector, Jharsuguda is tenable in the eye of law in directing the petitioner-MCL vide Order dated 15.11.2017 passed in Misc. Case No.07/2017 to consider for employment of the opposite party No.5-Jigyansu, grandson of Sadhu Charan Barik and son of Tobraj under the ORR Policy, 2006 read with Resolution dated 05.08.2013 issued by the Government of Odisha in Revenue and Disaster Management.

At the outset it may be said that a beneficent provision of legislation must be liberally construed so as to fulfil the statutory purpose and not to frustrate it. Bearing said sacrosanct principle in mind this Court proceeds to examine the issue in the present case.

11.1. As a prelude it may be worthwhile to refer to following paragraph from the Judgment of Hon’ble Supreme Court of India rendered in the case of Mahanadi Coalfields Ltd.Vrs. Mathias Oram, 2022 SCC OnLine SC 1508:

“12. Prior to delving into a point-by-point analysis, it is instrumental to allude to the case of State of M.P. Vrs. Narmada Bachao Andolan, (2011) 7 SCC 639 which highlighted the essence of rehabilitation through the lens of Article 21 of the Constitution: ‘Land acquisition and rehabilitation : Article 21

It is desirable for the authority concerned to ensure that as far as practicable persons who had been living and carrying on business or other activity on the land acquired, if they so desire, and are willing to purchase and comply with any requirement of the authority or the local body, be given a piece of land on the terms settled with due regard to the price at which the land has been acquired from them. However, the State Government cannot be compelled to provide alternate accommodation to the oustees and it is for the authority concerned to consider the desirability and feasibility of providing alternative land considering the facts and circumstances of each case.

In certain cases, the oustees are entitled to rehabilitation. Rehabilitation is meant only for those persons who have been rendered destitute because of a loss of residence or livelihood as a consequence of land acquisition. The authorities must explore the avenues of rehabilitation by way of employment, housing, investment opportunities, and identification of alternative lands.

‘10. *** A blinkered vision of development, complete apathy towards those who are highly adversely affected by the development process and a cynical unconcern for the enforcement of the laws lead to a situation where the rights and benefits promised and guaranteed under the Constitution hardly ever reach the most marginalised citizens.” (Mahanadi Coalfields Ltd. case [Mahanadi Coalfields Ltd. Vrs. 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 intrinsically connected to the land, the economic and cultural shift to a market economy can be traumatic. (Vide State of U.P. Vrs. Pista Devi [(1986) 4 SCC 251 : AIR 1986 SC 2025], Narpat Singh Vrs. Jaipur Development Authority [(2002) 4 SCC 666 : AIR 2002 SC 2036], Land Acquisition Officer Vrs. Mahaboob [(2009) 14 SCC 54 : (2009) 5 SCC (Civ) 297], Mahanadi Coalfields Ltd. Vrs. Mathias Oram [Mahanadi Coalfields Ltd. Vrs. Mathias Oram, (2010) 11 SCC 269 : (2010) 4 SCC (Civ) 450 : JT (2010) 7 SC 352] and Brij Mohan Vrs. HUDA [(2011) 2 SCC 29 : (2011) 1 SCC (Civ) 336].) The fundamental right of the farmer to cultivation is a part of right to livelihood. “Agricultural land is the foundation for a sense of security and freedom from fear. Assured possession is a lasting source for peace and prosperity.” India being a predominantly agricultural society, there is a “strong linkage between the land and the person’s status in [the] social system.’

However, in case of land acquisition, “the plea of deprivation of right to livelihood under Article 21 is unsustainable”. (Vide Chameli Singh Vrs. State of U.P. [(1996) 2 SCC 549 : AIR 1996 SC 1051] and Samatha Vrs. State of A.P. [(1997) 8 SCC 191 : AIR 1997 SC 3297]) This Court has consistently held that Article 300-A is not only a constitutional right but also a human right. (Vide Lachhman Dass Vrs. Jagat Ram [(2007) 10 SCC 448] and Amarjit Singh Vrs. State of Punjab [(2010) 10 SCC 43 : (2010) 4 SCC (Cri) 29].) However, in Jilubhai Nanbhai Khachar Vrs. State of Gujarat [1995 Supp (1) SCC 596 : AIR 1995 SC 142] this Court held : (SCC pp. 620 & 632, paras 30 & 58)

‘30. Thus it is clear that right to property under Article 300-A is not a basic feature or structure of the Constitution. It is only a constitutional right. …

***

… The principle of unfairness of the procedure attracting Article 21 does not apply to the acquisition or deprivation of property under Article 300-A giving effect to the directive principles.’

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

‘62. The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were. At the rehabilitation sites they will have more and better amenities than those they enjoyed in their tribal hamlets. The gradual assimilation in the mainstream of the society will lead to betterment and progress.’

In State of Kerala Vrs. 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 it bring within its umbrage a right of tribals to be rehabilitated in their own habitat is the question?

If the answer is to be rendered in the affirmative, then, for no reason whatsoever even an inch of land belonging to a member of Scheduled Tribe can ever be acquired. Furthermore, a distinction must be borne between a right of rehabilitation required to be provided when the land of the members of the Scheduled Tribes are acquired vis-à-vis a prohibition imposed upon the State from doing so at all.’

Thus, from the above referred judgments, it is evident that acquisition of land does not violate any constitutional/ fundamental right of the displaced persons. However, they are entitled to resettlement and rehabilitation as per the policy framed for the oustees of the project concerned.’ ***”

Harmonious reading of relevant provisions as extracted heretofore leads to show that Jigyansu, grandson of Sadhu Charan Barik, who was the son of Minaketan Barik, original recorded tenant, being nominated by his father-Tobraj in the third phase of acquisition is covered within the meaning of “family” envisaged under Paragraph 2(f)(i) of the ORR Policy, 2006 as amended in the year 2013 by virtue of Resolution of the Government Odisha in Revenue and Disaster Management. His brother-Ghanashyam having attained majority is treated to be “separate family for the purpose of extending rehabilitation benefit under this Policy” as on the cut-off date, i.e., 11.02.2014, on which date award has been made. In view of decision taken in the Proceeding of the RPDAC, dated 21.07.2007 date of award of compensation is reckoned as the cut-off date for employment under the CBA Act. This date could not be disputed as members of MCL were part of said Proceeding dated 21.07.2007 of the RPDAC.

12.1. As is transpired from the material on record it is fact that Prafulla Barik, Tobraj Barik and Akshyaya Barik are three sons of Sadhu Charan Barik. Tobraj Barik and Akshyaya Barik were minors at the time of 1st phase of acquisition pursuant to Notification dated 16.01.1982 under Section 4(1) of the CBA Act. Tobraj and his son Ghanashyam during the 3rd phase of acquisition do fall within the ambit of “separate family” as on the passing of award, i.e., 11.02.2014.

12.2. Following fact is culled out from the Communications dated 31.07.2017 and 27.09.2017 vide Annexure-4 and Annexure-5 enclosed to W.P.(C) No.10144 of 2018:

Name

Relationship

with awardee

Qualification

Date of birth

Age as on cut-off date, i.e., 11.02.2014

Ghanashyam Barik, S/o. Tobraj Barik

Grandson

B.Sc.

24.06.1995

18years 7 months 17 days

Jigyansu Sekhar Barik, S/o. Tobraj Barik

Grandson

Diploma in Mechanical Engineering

10.07.1996

17years 7 months 1 day

12.3. It is argued by the learned counsel for the petitioner-MCL that nomination for the second time by the father of Jigyansu is not in consonance with the ORR Policy, 2006. Refuting such contention, the learned counsel for the opposite parties submitted that as per Paragraph 8(II)(a) of said Policy, “displaced and other affected families shall be eligible for employment, by the project causing displacement”. It is stipulated therein that for the purpose of employment, “each family will nominate one member of the family”. By way of furnishing copy of representation dated 10.05.2017 (Annexure-E/2 to the Counter-affidavit filed by the opposite party No.2), it is submitted that it was alleged by Ghanashyam that in the 2nd phase of acquisition, though property in Khata No.73 was acquired by MCL, no compensation was received; but assurance was given for employment to both the brothers, namely Ghanashyam and Jigyansu. Since by the third phase of acquisition, the elder brother is treated as “separate family”, the nomination of Jigyansu for employment does not suffer from any deficiency. The clarification dated 31.08.2012 of Government of Odisha in Revenue and Disaster Management Department to the effect that the ORR Policy, 2006 is extended to the “grandson” who has attained 18 years of age on or before the cut-off date and the amendment to the ORR Policy, 2006 by way of Resolution dated 05.08.2013 clearly envisaged extension of benefit to “major son/grandson irrespective of his marital status” which was given retrospective effect from 15.05.2006. A clarification bearing Letter No.RDM-RRC-CLRFIC-0002/2018/34288/R&DM,  dated  05.11.2019 issued by the Government of Odisha in Revenue and Disaster  Management  [Annexure-D  to  the  Counter-affidavit filed by MCL in W.P.(C) No.10144 of 2018] indicates as follows:

“Now, the question arises as to whether a minor of the family which availed R&R benefit, on becoming major after the cut-off date is entitled for R&R benefits in respect of the same project. The answer is certainly NO inasmuch as the family of the minor having availed the benefit under the policy, on attaining the majority cannot constitute a ‘separate family’ within the meaning of the ORRP especially when the land for the purpose of such benefit having already been acquired is no longer available for consideration of R&R benefit.”

12.4. “Minor son” is included in the definition of “family” vide Paragraph 2(f) of the ORR Policy, 2006 and Paragraph 11 of the Resettlement and Rehabilitation Policy of Coal India  Ltd.  Paragraph  12  of  the  Resettlement  and Rehabilitation Policy of Coal India Ltd. recognizes “adult individuals as the unit of entitlement”. In such view of the matter, aforesaid clarification does not alter the entitlement of Jigyansu inasmuch as he is one of the family members who is to be extended the benefit in place of his father-Tobraj, though found eligible, due to his over-age, he could not undertake job in MCL.

12.5. It is fact as recorded by the learned Collector, Jharsuguda vide Order dated 15.11.2017 that “Sri Tobraj Barik son of Sadhu Charan Barik has attained over-age and unable to perform service in MCL”. Nonetheless, it has been stated at paragraph 11 of the writ petition that “in reply of the petitioner in Misc. Case No.07 of 2017 the petitioner categorically stated that the name of the opposite party No.4 (Ghanashyam) has already been considered and approved for employment”. It may be noteworthy that the opposite party No.4-Ghanashyam is “separate family” as on the cut-off date, i.e., 11.02.2014, in view of provisions discussed supra.

12.6. It is emphasized by the petitioner-MCL that pursuant to direction of this Court vide Order dated 01.06.2017 in W.P.(C) No.10334 of 2017, which was filed at the behest of Ghanashyam Barik, he made representation before the General Manager, MCL, Lakhanpur Area requesting for consideration of employment of both the brothers. Such representation was considered by said Manager with the observation that in the third phase of acquisition by MCL the cut-off date is 11.02.2014 and Tobraj is found eligible for employment. Since as on aforesaid cut-off date Jigyansu was minor, the case of Ghanashyam has been considered and duly approved by MCL. It is also made clear from the Letter dated 27.09.2017 (vide Annexure-5 to W.P.(C) No.10144 of 2018) that “Once the IME is completed and found fit for the job, Sri Ghanashyam Barik shall be issued with offer of appointment subject to handing over vacant physical possession of house and land.” This Court wishes to make a note that what is missed by the General Manager of MCL that whereas Tobraj was found eligible for employment as on cut-off date, i.e., 11.02.2014, Ghanashyam was also eligible for employment, being major and is treated “separate family” on that date. General Manager while considering representation in compliance of direction of this Court vide Order dated 01.06.2017 in W.P.(C) No.10334 of 2017, should have borne in mind the fact that as Tobraj has become over-aged and cannot be considered for undertaking employment, his son Jigyansu, who was not treated “separate family”, was to be offered employment.

12.7. It is obligated under the heading “Rehabilitation Assistance” vide paragraph 8 in Type: B— Mininig Projects that “displaced and other affected families shall be eligible for employment by the project causing displacement”. Interpreting the word “shall” this Court (one of us, Dr. B.R. Sarangi, J., was member) observed in Manoranjan Ray Vrs. State of Odisha, 2023 SCC OnLine Ori 562, as follows:

“9. In Hiralal Agrawal Vrs. Rampadarth Singh, AIR 1969 SC 244, the apex Court held that the question whether a particular provision of a statute is mandatory inasmuch as it uses the word “shall” or is merely directory cannot be resolved by laying down any general rule but depends upon the facts of each case. The purpose and the object of the statute in making the provision is the determining factor.

In Sainik Motor Vrs. State of Rajasthan, AIR 1961 SC 1480, the apex Court held that when a statute uses the word “shall”, prima facie it is mandatory but it is sometime not so interpreted if the context or the intention otherwise demands.

In State Inspector of Police Vrs. Surya Sankaram Karri, (2006) 7 SCC 172, while considering the provisions contained under Section 17 of the Prevention of Corruption Act, 1988, the apex Court held that the expression “shall” in proviso to Section 17 of the Act makes the provision mandatory.

In Hemalatha Garva Vrs. C.I.T., (2003) 9 SCC 510, the apex Court held that use of word “shall” in a statute, ordinarily means that the statutory provision is mandatory.

In Biswanath Poddar Vrs. Archana Poddar, (2001) 8 SCC 187, while considering the provisions under Section 16(1) and Rule 4 of the West Bengal Premises Tenancy Act, 1956, the apex Court held that use of word “shall” in Section 16 of the Act and Rules indicates that the legislature intended the requirement of notice under Section 16 of the Act to be mandatory.

In the judgment rendered in the case of Bimal Chandra Pradhan Vrs. Mahanadi Coal Fields Ltd., W.P.(C) No. 15543 of 2010 disposed of on 14.07.2015, in which one of us (Dr. B.R. Sarangi, J.) was a Member, this Court in paragraphs 8, 9, 10 and 11 held as follows:

“8. On perusal of the above mentioned pleadings it is made clear that the petitioners’ case has been ignored by the authorities. While providing four employment to the nominees of two joint owners of the land namely, Iswar Pradhan and Jeevan Pradhan, they have refused to provide such employment to the nominees of two other joint owners namely, Deba Pradhan (father of the petitioners) and Laxmidhar Pradhan. This clearly indicates the arbitrary and unreasonable exercise of powers by the authorities in giving employment to four persons of two joint owners and not giving employment to other joint co-owners is absolutely a discriminatory one. Therefore, the action of the authorities in providing employment on the plea that there was no vacancy in Category ‘D’ cannot sustain in the eye of law. The Special Land Acquisition Officer-opposite party no. 4 in his counter affidavit has categorically indicated the eligibility of the petitioners to get employment under the Rehabilitation and Resettlement Scheme evolved by the State Government in Annexure-A/4. As such, Sub-Clause-(d) of Clause-4 of the Scheme puts a mandate that in case of families who have lost 1/3rd of the total agricultural holding, one member from each family shall be provided with employment according to availability. The use of word ‘shall’ in its ordinary import is obligatory. Inasmuch as considering the purport of the Scheme the use of word ‘shall’ puts a mandate to provide employment to the families of the displaced persons according to availability.

In Land Acquisition Officer Vrs. Karigowola, (2010) 5 SCC 708, the word ‘shall’ in section 23(1) of the Act came up for consideration where the apex Court held that it would have to be construed as mandatory and not directory.

In Pesara Pushpamala Reddy Vrs. G. Veera Swamy, (2011) 4 SCC 306 referring to the principles of statutory interpretation 12th Edn., 2010, pp. 406-07 (by Justice G.P. Singh), the apex Court has held as follows:

“the use of the word ‘shall’ raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other consideration such as object and scope of the enactment and the consequences flowing from such construction.”

Therefore, taking into consideration the above mentioned interpretation of the word ‘shall’ as used in the present context though ordinarily it imports as a obligatory one, but in essence providing employment to one of the families for loss of 1/3rd of the total agricultural holdings, puts a mandate to provide employment to one of its member from each family according to the availability. Thus, denial of benefit on the ground that there is no availability of vacancy cannot sustain in the eye of law. In view of the fact that as per the pleadings available on record if four persons sponsored by two joint owners have been provided employment, the petitioners could not have been denied such employment being the two other co-joint owners of the land oustees.”

Therefore, taking into consideration the aforementioned judgment of this Court, it is made clear that the word ‘shall’ used in clause-4 of the guidelines and taking into consideration its purport, puts a mandate to provide employment to the family of the displaced persons according to the availability.”

12.8. For the same reasoning as had been held by this Court on earlier occasion qua land acquisition by MCL in connection with ORR Policy, 2006, it is, hence, made clear that providing employment to family member of displaced and affected families is mandatory in terms of the language used under the heading “EMPLOYMENT” in category Type-B: Mining Projects envisaged for “Rehabilitation Assistance” in Paragraph 8 of the ORR Policy, 2006. Since the opposite party No.4-Ghanashyam is treated to be “separate family” in view of Note appended to the definition of “family”, which covers grandson irrespective of his marital status by virtue of retrospective amendment with effect from 15.05.2006 vide Resolution dated 05.08.2013, and the opposite party No.3-Tobraj is found entitled for employment, but for the infirmity to take up employment due to over-age, one of his family members, namely the opposite party No.5-Jingyansu, who was minor as on the cut-off date, i.e., 11.02.2014 could be nominated for employment by his father, which would be in conformity with the requirement of condition stipulated for “EMPLOYMENT” in Type B: “Mining Project” under Paragraph 8— “Rehabilitation Assistance”. Such nomination of son, “one member of the family” by the father would serve the purpose for which the policy has been put in place.

12.9. This Court refers to purposive interpretation as given by the Hon’ble Supreme Court in Vinod Kumar Vrs. District Magistrate Mau, Neutral Citation: 2023INSC606:

“25. It may be mentioned in the aforesaid context that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation, for example, the mischief rule/purposive construction, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule. The language employed in a statute is the determinative factor of the legislative intent.

The legislature is presumed to have made no mistakes. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency.”

12.10. At this juncture this Court feels it appropriate to refer to the following observation of the Hon’ble Supreme Court vide Mahanadi Coalfields Ltd. Vrs. Mathias Oram, 2022 SCC OnLine SC 1508:

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

(i) Employment; cash in lieu of employment— employment to at 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) entitles each displaced family at least 1/10th of an acre of land in a resettlement habitat. One time cash grant of Rs.50,000/- for those opting for self-location elsewhere in lieu of homestead land;

(iii) House building assistance of up to Rs.1,50,000 to each displaced family, settling in the resettlement habitat or opting for relocation elsewhere. Shops and service units to be constructed by the project authorities which are to be allotted in consultation with the Collector to displaced family opting for self-employment. These were subject to preference to physically challenged persons and members of the displaced SC/ST families.

***

As noticed earlier, the difference between the Orissa Resettlement 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 dependent on him or her for his/her livelihoods.” The note to clause 2(f) states that, “Each of the following categories will be treated as a separate family for the purpose of extending rehabilitation benefits under this policy.” It also enumerates a major son and an unmarried daughter/sister of more than 30 years, as “a separate family for the purpose of extending rehabilitation.”

The amendment to the policy, made on 05.08.2013, is that instead of a major son, the expression “A major son/grandson irrespective of his marital status” was substituted. Similarly, the term “Unmarried daughter/sister more than 30 years of age”, was substituted with “Major unmarried daughter/Major unmarried granddaughter/Major unmarried sister”.”

12.11.   There is no doubt that in compensation schemes, the “family” is considered as the unit. The principle which can be deduced is that relatives who are not dependent on the claimant will constitute a separate family unit for the purposes of compensation and rehabilitation. Vide Eastern Coalfields Ltd. Vrs. Anadinath Banerjee, (2021) 8 SCC 593.

12.12. Jigyansu, “minor son” as on cut-off date and thereby included in the definition of “family” in view of Paragraph 2(f) of the ORR Policy, 2006 and Paragraph 11 of the Resettlement and Rehabilitation Policy of Coal India Ltd., is entitled for employment. Ghanashyam is treated as “separate family” in terms of Note appended to clause (f) of Paragraph 2 of the ORR Policy and Paragraph 12 of the Resettlement and Rehabilitation Policy of Coal India Ltd. recognizes “adult individuals as the unit of entitlement”. The opposite party No.2-Collector, Jharsuguda while examining the issue whether Jigyansu can be considered for employment in preference to Ghanshyam, it seems, he has taken into account the fact that as on 11.02.2014, Jigyansu was minor and “member of the family” of Tobraj and thereby is not treated “separate family” in terms of Note appended to clause (f) of Paragraph 2 of the ORR Policy, 2006. Though Tobraj is entitled for employment, being over-aged, he could not be given employment. Further his elder son, namely Ghanashyam, being major as on the cut-off date, is treated as “separate family”. In terms of “Rehabilitation Assistance” as per Paragraph 8(II): Type-B— Mining Projects, “for the purpose of employment, each family member will nominate one member of the family”. The nomination of Jigyansu by Tobraj cannot, therefore, be faulted with. Therefore, while holding that the approach of General Manager, MCL, Lakhanpur Area cannot be countenanced, this Court, thus, does not find that the approach of the Collector, Jharsuguda in passing the Order dated 15.11.2017 in Misc. Case No.07 of 2017 erroneous.

Scope of exercise of power under Article 226/227 of the Constitution of India to reappraise the finding of fact by competent authority based on material on record:

Unless glaring defect in procedure to reach at the conclusion by the competent authority is in question or it is demonstrated that such finding of fact could not have been arrived at by the quasi judicial functionary by ordinary prudence or finding is bereft of evidence and/or de hors material on record, this Court is of the opinion that exercise of jurisdiction under Article 226/227 of the Constitution is uncalled for. The petitioner-MCL, on the facts and in the circumstances of the instant case, has not made out a case of manifest error of law or exercise of jurisdiction by the Collector, Jharsuguda. The Order impugned cannot, therefore, be said to be illegal and not in consonance with the provisions of ORR Policy, 2006 and other relevant material referred to in foregoing paragraphs.

13.1. It is noticed from the writ petition that main ground of attack of the petitioner is “in the present case the opposite party No.4 (Ghanashyam) is already nominated as one of the family member and as Sri Jigyansu Sekhar Barik was minor on cut-off date, any further nomination of the opposite party No.3 (Tobraj Barik) is illegal and arbitrary”. Needless to repeat, it remains undisputed that this case revolves round third phase of acquisition with reference to ORR Policy, 2006. Attention of this Court is drawn by the opposite parties to the Proceeding of RPDAC dated 21.07.2007, where discussions were made in presence of members of MCL. In the said proceeding vide Paragraph 2 it has been stated thus:

“*** this problem has already been sorted out during the RAC held on 17.05.2005, that the date of award of compensation in the village shall be the cut-off date for employment under CBA Act.”

13.2. Further scrutiny of ORR Policy, 2006 as amended vide Resolution No.29828/R&REH/1/2013, dated 05.08.2013, which is made effective from 15.05.2006, indicates that major son and grandson are eligible and entitled for employment under said policy. It is also stipulated in Note appended to Paragraph 2(f) that “a major son/grandson irrespective of his marital status” is treated to be “separate family”. The fact recorded by the Collector, Jharsuguda, which remained uncontroverted, runs as follows:

“From the above discussion it has come to the notice that the family of Tobraj Barik son of Sadhu Charan Barik of village Ubuda and Ghanshyam Barik son of Tobraj Barik constitutes separate family on cut-off/award date, i.e., 11.02.2014 as Ghanshyam Barik son of Tobraj Barik has attended the age of majority which has also been admitted at page-5 by the MCL in his show-cause reply. So as per Paragraph 8(a) Tobraj Barik can nominate one of the members of his family.”

13.3. It is not the case of the petitioner-MCL that any one of the family members of Tobraj has been given employment. Mere statement of the petitioner-MCL that the name of Ghanashyam-opposite party No.4 was approved would not suffice. It is fact emanating from the writ petition that Ghanashyam was noticed for medical examination. This reason of MCL cannot be accepted inasmuch as Ghanashyam, having attained age of majority before the cut-off date, i.e., 11.02.2014, constitutes “separate family”. On the contrary, it is admitted fact that the opposite party No.3-Tobraj was found eligible for the benefit, and nominated name of Jigyansu-opposite party No.5 for employment. Therefore, in absence of any restriction in the Policy for nominating a member of the family, it is to be held that the Collector is justified to direct the petitioner-MCL to consider the name of Jigyansu-opposite party No.5 for employment under the ORR Policy, 2006 under the Type-B: Mining Projects vide Paragraph 8: Rehabilitation Assistance. Clause (a) of this paragraph specifically speaks that “the project proponent will give preference to the nominated members of the displaced and other affected families in the matter of employment”.

13.4. Under aforesaid perspective, there is little scope for interference with the Order dated 15.11.2017 passed in Misc. Case No.07/2017 by the Collector, Jharsuguda.

13.5. This Court exercising jurisdiction under Article 226 of the Constitution of India, not only has the power to issue a writ of mandamus or in the nature of mandamus, but also is duty-bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a statute, or a rule, or a policy decision of the Government or has exercised such discretion mala fide, or on irrelevant consideration. It is rule of prudence that jurisdiction of Writ Court comes from the law of the land and need not be exercised otherwise.

13.6. A Constitution Bench of the Hon’ble Supreme Court of India in Syed Yakoob Vrs. K.S. Radhakrishnan, AIR 1964 SC 477, has spoken about the scope of Writ of Certiorari in the following terms:

“7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath Vrs. Ahmad Ishaque, AIR 1955 SC 233, Nagendra Nath Bora Vrs. Commissioner of Hills Division and Appeals, AIR 1958 SC 398 and Kaushalya Devi Vrs. Bachittar Singh, AIR 1960 SC 1168).”

13.7. In Perry and Co. Ltd. Vrs. P.C. Pal, Judge of the Second Industrial Tribunal, Calcutta and others, AIR 1970 SC 1334, it has been held inter alia:

“11. The grounds on which interference by the High Court is available in such writ petitions have by now been well established. In Basappa Vrs. Nagappa, (1955) SCR 250 it was observed that a writ of certiorari is generally granted when a court has acted without or in excess of its jurisdiction. It is available in those cases where a tribunal, though competent to enter upon an enquiry, acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. But a mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected.

In Dharangadhara Chemical Works Ltd. Vrs. State of Saurashtra, (1957) SCR 152 this Court once again observed that where the Tribunal having jurisdiction to decide a question comes to a finding of fact, such a finding is not open toquestion under Article 226 unless it could be shown to be wholly unwarranted by the evidence. Likewise, in State of Andhra Pradesh Vrs. S. Sree Ram Rao, AIR 1963 SC 1723 this Court observed that where the Tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or where its conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person can ever have arrived at that conclusion interference under Article 226 would be justified. ***”

The case of the petitioner-MCL does not satisfy the parameters laid down for exercise of jurisdiction under Article 226/227 of the Constitution of India to intermeddle the Order dated 15.11.2017 of the Collector, Jharsuguda,   which   is passed   later   to   the Communications dated 31.07.2017 and 27.09.2017 of General Manager, MCL, Lakhanpur Area (vide Annexures-4 and 5 to W.P.(C) No.10144 of 2018).

DECISION AND CONCLUSION:

For the discussions made above and the reasons stated supra, this Court declines to show indulgence in the matter in W.P.(C) No.8891 of 2018 [MCL Vrs. State of Odisha] and thereby affirms that the learned Collector, Jharsuguda has passed just and proper Order on 15.11.2017 in Misc. Case No.07/2017 directing the petitioner-MCL to consider the case of the opposite party No.5-Jigyansu Sekhar Barik, son of Tobraj Barik for employment under the ORR Policy, 2006.

In consequence thereof, this Court nullifies the effect of Communications bearing Letter No. MCL/GM/LKPA/ L&R/17-18/785, dated 31.07.2017 addressed to the Additional District Magistrate, Jharsuguda and Letter No. MCL/GM/LKPA/L&R/17-18/872, dated 27.09.2017 addressed to Ghanashyam Barik, son of Tobraj Barik vide Annexures-4 and 5 enclosed to W.P.(C) No.10144 of 2018.

In the result, the Order dated 15.11.2017 passed by the Collector, Jharsuda in Misc. Case No. 07 of 2017 is upheld and as a consequence thereof, the petitioner- MCL is required to carry out the direction contained in said Order as expeditiously as possible without being biased by the Communications of General Manager, MCL, Lakhanpur Area supra.

Accordingly, the writ petition bearing W.P.(C) No.8891 of 2018 filed by MCL stands dismissed and writ petition bearing W.P.(C) No.10144 of 2018 filed by Jigyansu Sekhar Barik, son of Tobraj Barik is allowed. No costs.