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2009 DIGILAW 172 (ORI)

JAMBU SETHI v. STATE OF ORISSA

2009-03-02

I.M.QUDDUSI, SANJU PANDA

body2009
JUDGMENT : I.M. Quddusi, J. - By means of this Writ Petition the Petitioners have prayed for a direction to the Opposite Parties to pay the compensation of Rs. 90,500 to each of them with interest accrued thereon from the date of entitlement in the interest of justice. 2. At the very out set it is necessary to mention here that a memo has been filed on behalf of the Petitioners on 30.10.2008 stating that during the pendency of the Writ Petition, the Petitioner Nos. 1, 2 and 3 have already got their compensation and, therefore, the Writ Petition in respect of those Petitioners is not pressed. So far as Petitioner Nos. 4 to 7 namely. Kumari Dukhi Nayak Daughter of Abhi Nayak, Sri Banamali Pradhan, Son of Jaya Pradhan, Kumari Puspanjali Naik, D/o Bijaya Naik and Kumari Namita Naik, daughter of Kasia Naik are concerned, it is stated in the memo, that they were minors at the time of publication of notification u/s 4 of the Land Acquisition Act and are entitled to compensation at the rate the same was paid to Petitioner Nos. 1 to 3. 3. The brief facts of the case are that the Orissa Resettlement & Rehabilitation of Projects Affected Persons Policy, 1994 was published consequent upon the resolution of the State Government, Department of Water Resources Vide No. 25296/W.R. Bhubaneswar Dt. 27.8.94. In the said policy the definition of 'displaced person' has been given as a person who since at least one year prior to the date of publication of the notification u/s 4 of the Land Acquisition Act, 1894 has been ordinarily residing and who on account of acquisition of his/her land including homestead land in the submergence zone for the purpose of the project is displaced from such land. This would also include landless labourers'. Family has also been defined as under: (g) Family, in relation to a displaced person, means, (i) Such person and his or her spouse, minor sons, unmarried daughters, minor brothers or sisters, father & mother and other members residing with him & dependent on him for their livelihood. (ii) A son who is more than 18 years of age irrespective of his material stands. (iii) The unmarried daughter who is more than 30 years of age. (iv) Physically and mentally retarded persons, irrespective of their age and sex. (ii) A son who is more than 18 years of age irrespective of his material stands. (iii) The unmarried daughter who is more than 30 years of age. (iv) Physically and mentally retarded persons, irrespective of their age and sex. (v) Minor orphans who have lost the parents and have nobody to fall back upon. Such orphans numbering more than one in a particular family will be clubbed together and counted as one family. (vi) Share croppers/holders if recorded as such in the Record of rights. (vii) Divorcees and widows having no source of livelihood. (viii) A person in whose favour encroachment if any within the affected zone is settled as per the law of the land. 4. It has been alleged in the Writ Petition that the Petitioners 4 to 7 are physically handicapped persons and are unable to do their daily work and it is not possible on their part to maintain daily life. The percentage of disability has been shown in respect of Petitioner Nos. 4 to 7 as under: Petitioner No. Name Percentage of disability 4. Km. Dukhi Naya 70% 5. Sri Banamali Pradhan 50% 6. Km. Puspanjali Naik 45% 7. Km. Namita Naik 40% It is further stated in the Writ Petition that the Opposite Parties have got the above Petitioners examined by medical experts to ascertain the nature and percentage of disability. Similarly situated other persons have been examined and have got the compensation ignoring the case of the Petitioners. It is submitted that the Petitioners have made applications to the Opposite Party No. 3 to make the payment of compensation as other similarly situated and affected disabled persons have got their compensation. The case of the Petitioners has also been recommended by the local M.L.A. to the Opposite Parties. It is further averred in the Writ Petition that the Petitioners and their guardians have approached the Opposite Party No. 3 and have given many representations to consider their case sympathetically. On 27.9.2003, Petitioner Nos. 1 to 6 except Petitioner No. 4 and on 6.9.2003 Petitioner Nos. 7 and 4 have given representation to the Chief Minister as contained in Annexure-1 series to the Writ Petition. On 27.9.2003, Petitioner Nos. 1 to 6 except Petitioner No. 4 and on 6.9.2003 Petitioner Nos. 7 and 4 have given representation to the Chief Minister as contained in Annexure-1 series to the Writ Petition. Under Sub-clause (iv) of Clause 2(f) although physically and mentally retarded persons, irrespective of their age and sex also come within the purview of family but to be enumerated as a separate family for the purpose of rehabilitation such blind, deaf, orthopaedically handicapped and men tally retarded person should have more than 40% permanent disability. 5. Admittedly the disability of Petitioner No. 7 Km. Namita Naik has been certified as 40% and, therefore, it cannot be said that it was more than 40%. Thereforo, she is not entitled to any compensation. 6. With regard to Petitioner No. 4 Km. Dukhi Nayak it has been stated in the counter affidavit that she was less than one year of age at the time of enumeration and preparation of Displaced Person list as on 1.1.98. In the year 1999 as per the direction of the Government vide letter No. 20700 dated 8.6.1999 of Water Resources Department, a Medical Board was constituted and the said board conducted a programme for medical test of the. Physically Handicapped displaced persons at S.C.B. Medical College, Cuttack during 22.6.1999 and the Zone Officer of the Office of the Special Land Acquisition Officer, MIP Ganjam Chatrapur was present for identification of displaced persons. In the said board Petitioner No. 4 did not appear but she is claiming rehabilitation assistance on the basis of Medical Certificate dated 7.04.2000 issued by the Department of Orthopaedics, S.C.B. Medical College, Cuttack. Anyhow the Medical Certificate shows the disability of Dukhi Nayak as 70% and, therefore, since no age limit was fixed and she has submitted the Medical Certificate, the same was to be verified by the concerned Officers and she shall be entitled to get the compensation on that basis. In respect of Petitioner No. 5 Banamali Pradhan and Petitioner No. 6 Km. Puspanjali Naik, their disabilities have been shown as 50% and 45 % respectively. But in the counter affidavit, it has been mentioned that Petitioner No. 5 is having permanent disability of exactly 40%. If it is so, he is also not entitled to get the benefit of the policy. Puspanjali Naik, their disabilities have been shown as 50% and 45 % respectively. But in the counter affidavit, it has been mentioned that Petitioner No. 5 is having permanent disability of exactly 40%. If it is so, he is also not entitled to get the benefit of the policy. With regard to Petitioner No. 6 it has been mentioned in the counter affidavit that she has been evacuated in the first phase out of five submerged villages i.e. Dangabadi, Sardhapur, Kanheipur, J. Nuagaon and Bhabasar after acquisition of land in the year 1987 and for payment of compensation under the land acquisition Act, a list was prepared for enumeration and finalization of displaced persons and this list was made fixing the cut off date as on 1.1.1993 and all the eligible displaced persons of village Dangabadia have since been paid land acquisition compensation, rehabilitation assistance and other benefits as per the guidelines of the Government. As the Rehabilitation and Re-settlement benefits have been closed on 1.1.1993, his case could not be considered. In the above regard it was the duty of the officers or the authority concerned to include her name. Therefore, in our opinion, Petitioner No. 6 namely Km. Puspanjali Naik is entitled to get compensation. 7. In the result, the writ Petition is allowed in part. The Opposite Party shall verify the Medical Certificates of the Petitioners 4 and 6 and if it is found to be genuine and they have disability to the extent of more than 40%, they may be paid compensation in accordance with the Policy. However, in respect of Petitioners 5 & 7, this Court is not inclined to pass any order. Their claim is accordingly rejected. No costs. Sanju Panda, J. I agree.