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2010 DIGILAW 394 (ORI)

UTKAL NABAJIBAN MANDAL v. STATE OF ORISSA

2010-06-22

B.P.RAY, L.MOHAPATRA

body2010
JUDGMENT : L. Mohapatra, J. - Utkal Nabajiban Mandal, which is a social organization, has filed W.P.(C) No. 9437 of 2010 for a direction to the opposite parties to postpone the construction of "common corridor" till the inquiry conducted by Justice P.K. Mohanty Commission is completed, for a direction to the opposite parties to ensure supply of ration and drinking water to all the villagers and also for a direction to permit the villagers to go out of the village as and when required. W.P.(C) No. 9352 of 2010 has been filed by two persons for a direction to the opposite parties to stop the forceful evacuation and killing of the local tribal residents of Kalinganagar in the district of Jajpur in the name of displacement to set up steel industries and construction of the "common corridor" in the industrial belt of Kalinganagar as well as for a direction to hand over investigation of the case relating to death of one Laxman Jamunda to C.B.I. 2. At the stage of admission of both the cases, this Court by order dated 22.5.2010 directed the Member-Secretary, Orissa.State Legal Services Authority to visit the areas covered under the two writ petitions, take assistance of the learned Civil Judge (Senior Division)-cum-Secretary, District Legal Service Authority, Jajpur to examine some of the residents and submit a detailed report with regard to truth or otherwise of the allegations made in both the writ petitions by 27th May, 2010. In pursuance of the said order, the Member-Secretary, Orissa State Legal Services Authority visited the places on two dates and has submitted a detailed report after examining some of the villagers of different villages. 3. In course of hearing at the stage of admission, Shri G.P. Mohanty, learned Counsel appearing for the Petitioner in W.P.(C) No. 9437 of'2010 confined his submission to the following prayers : (1) The proposal for construction of a "common corridor" in respect of industrial belt proposed to be made should be stopped till Justice P.K. Mohanty Commission completes its inquiry and submits a report. (2) The villagers of affected villages be supplied with regular ration, kerosene and drinking water and they may be permitted to go out of the village by the police which is alleged to have surrounded the villages. (2) The villagers of affected villages be supplied with regular ration, kerosene and drinking water and they may be permitted to go out of the village by the police which is alleged to have surrounded the villages. Shri Mishra, learned Counsel appearing in W.P.(C) No. 9352 of 2010 confined his submission to the incident resulting in death of one Laxman Jamuda and prayed for investigation of the incident by C.B.I. Though Anr. prayer in this writ application has been made to stop the construction of "common corridor", the very same question having also been raised in the connected writ application, Shri Mishra did not make any submission in this regard. 4. So far as W.P.(C) No. 9437 of 2010 is concerned, it is alleged in the writ application that the villagers of Baligotha, Chandia, Gadapur and several other hamlets did not agree to part with their agricultural land after death of fourteen Adivasi villagers on 2.1.2006 and a dispute arose. Because of such dispute, the village schools meant for Adivaasi children have been closed and the villagers are not getting kerosene, sugar, rice and other articles even though they are in possession of ration cards. It is also alleged that the villagers are not getting proper drinking water. It is further alleged in the writ application that construction of "common corridors" would take away the agricultural lands of the poor Adivasi villagers, which is the main source of their livelihood, and, accordingly, a prayer has been made to stop the construction of "common corridor" till the Commission set up by the State Government completes its inquiry and submits a report. In W.P.(C) No. 9352 of 2010, similar allegations have been made so far as construction of "common corridor" is concerned, and in addition to the same, it is alleged in paragraph-12 of the writ application that on 11th May, 2010, the police force forcibly tried to evacuate the villagers of Kalinganagar area for the purpose of construction of "common corridor" and it was opposed by the "Bistapan Sangharsha Samitte". While the members of said Bistapan Sangharsha Samiti were opposing such evacuation in a peaceful manner, the police suddenly started firing on the innocent villagers, as a result of which an aged person namely, Laxman Jamuda was killed by the police bullet while trying to save the life of his grandson. While the members of said Bistapan Sangharsha Samiti were opposing such evacuation in a peaceful manner, the police suddenly started firing on the innocent villagers, as a result of which an aged person namely, Laxman Jamuda was killed by the police bullet while trying to save the life of his grandson. It is also alleged that the dead body of Laxman Jamuda was not handed over to his family members and was cremated by the police in a clandestine manner at Swargadwarda in the district of Puri and, therefore, the illegal conduct of the police deployed at the concerned area should not be investigated by the General Police and investigation of the same should be handed over to the C.B.I. Counters have not been filed in either of the cases. 5. As the Court decided first of all to find out the truth or otherwise of the allegations made in the writ application, it directed an inquiry to be conducted by the Member-Secretary, Orissa State Legal Services Authority. In pursuance of the order dated 22.5.2010, a detailed report has been submitted to the Court on 27.5.2010. From the report of the Member-Secretary, Orissa State Legal Services Authority, it appears that he along with the Secretary, District Legal Service Authority, Jajpur had visited some of the villages and recorded the evidence of some of the inhabitants of the said villages before submitting the report. As it appears from the report, he visited village Amabagadia and recorded the statements of five inhabitants of the said village. Village Ambagadia. which is a hamlet of village Gobaraghati, is located on both sides of the Express Highway running from Paradeep to Duburi at a distance of about 4 Kms. from Duburi Chhaka. The tribals have the memorials of the persons killed on 2.1.2006 in the village. In course of inquiry, it was found that two of the families of the said village had already left the village and are residing in rehabilitation colony. However, none of the five persons examined made any grievance of confinement within the village for the reason of their protesting displacement. The Member-Secretary appears to have examined the President, Chakradhara Haibru, who did not whisper.a word about any harassment meted out to him and he also examined wife of Anr. Chakradhar Haibru, who is also an activist against displacement and now lodged in jail. The Member-Secretary appears to have examined the President, Chakradhara Haibru, who did not whisper.a word about any harassment meted out to him and he also examined wife of Anr. Chakradhar Haibru, who is also an activist against displacement and now lodged in jail. She also did not make any such allegation against the opposite parties. One Jayanti Jamuda, the Secretary of a Self Help Group stated that the control commodities are regularly supplied to the villagers and the primary and high schools, which were in existence, are still running and they have not been closed, down. The villagers are also getting proper drinking water from the tube-wells dug by the Government. A college going girl, namely, Sasmita Jamuda was also examined, but she did not say anything about any kind of harassment at the hands of the police deployed in the locality. The team also visited village Gobaraghati and recorded the statements of nine persons of the said village. One Dabar Angarai, a member of "Bisthapana Birodhi Janamanch" disclosed, that police is harassing them as they are opposing displacement and several cases have been registered against him but he was never detained in the police station at any point of time and he regularly attends the meetings of the anti displacement forum. He had been to village Bamiagotha on 22.4.2010 to attend the meeting convened in memory of Lakhman Jamuda but the said meeting could not be held due to heavy rain. On 23rd April, 2010, police came to his village but he managed to slip from his village. However, later on he heard from his wife that his house vvas pulled down on that day by the supporters of Tata Company in presence of police and his belongings, such as, paddy and other articles were taken away. He further stated that the police force is not 'emaining round the clock in their village. In course of visit, the team found the family of this witness residing in a house adjacent to the house which is alleged to have been pulled down by the police. His statement also goes to show that the lands were acquired in the year 1992 and they had received some compensation but they did not agree for acquisition of the land and are still cultivating the same. His statement also goes to show that the lands were acquired in the year 1992 and they had received some compensation but they did not agree for acquisition of the land and are still cultivating the same. He also stated that out of fear of police, the male persons of the village are not moving out but the ladies are going out side the village. In one incident, a pregnant woman was not taken to the hospital fearing police atrocities. This witness has also stated that the village is having schools, both Primary and High School, where students are reading. He also stated that there are tube-wells and people have been issued with B.P.L. and Antodaya Cards and they are getting control commodities regularly. The widows are also getting allowance. One Dasma Angarai examined by the team stated that the anti-socials engaged by the Tata Company pulled down the rooms in her house and a cow-shed with the help of police and the articles kept in the house were taken away. However, Birasingh Bodra, a Primary School teacher, contradicted the version of Dabara Angarai about police harassment and stated that he has not been harassed by the police even though he is opposing displacement and regularly goes out of the village to attend his duty. He further stated that people, who have been displaced, are coming to the village along with the police to pull down their houses and take their belongings. This witness further stated that the villagers are getting control commodities regularly, schools are functioning and they do not face any problem in going out of the village. Another witness, namely, Juga Sai stated that even though he is opposing displacement, he regularly visits Duburi to fetch his daily useable. One Sima Badara stated that police had assaulted them in presence of Collector, Tahasildar and the anti-socials engaged by the Tata Company on 12.9.2009 at about 4 P.M. while she was moving in the village street. One Sitakanta Tiu stated that he had displaced himself, demolished his own house and taken delivery of his belongings. Similar is also the statement of Dehuri Angarai. On 26.5.2010, the team visited Kalamatia, a hamlet of village Chandia, situated near Jajpur-Sukinda Highway. The team saw that almost all the houses have been pulled down and they were told that many people are residing at Tata displacement colony. Similar is also the statement of Dehuri Angarai. On 26.5.2010, the team visited Kalamatia, a hamlet of village Chandia, situated near Jajpur-Sukinda Highway. The team saw that almost all the houses have been pulled down and they were told that many people are residing at Tata displacement colony. There were only two families in the said village and, accordingly three inhabitants were examined. One Khageswar Mahanta stated that they have got compensation and also will get compensation from Tata Steel. He stated that though he has been displaced but he had not taken all his belongings from his village and almost all villagers of his village have left except two families which according to the rehabilitation norm consist of five families. He further stated that the village had no school and their children were reading in Nuagaon Primary School. The Anganwadi Centre in their village has been closed down after the villagers left the village. He also stated that they are getting control commodities from the dealer at Chandia but he also made a statement that he had been assaulted by Tata supporters earlier. One Damayanti Mahanta examined by the team stated that she is opposing displacement and her husband, a Ward Member of the Gram Panchayat, also opposes the displacement and she attends the meeting, but did not complain of any harassment at the hands of the police or any restriction in their movements. She also stated that control commodities are being obtained from the dealer at Chandia. The team next visited village Chandia and found some of the houses to have been demolished. They recorded the statement of nine witnesses in the said village. On Rabindra Jarika, the Secretary of "Bisthapana Birodhi Mancha", stated that police is harassing the villagers as they are not succumbing to the pressure of police for displacement and protesting against displacement. He also alleged that anti-socials engaged by the Tata Company are harassing them with the aid of police and for such harassment, the villagers are not going outside and 14 people died for want of medical treatment. Some of the villagers, who had been employed in different industries, are also being harassed on being disengaged by the contractors and the students are being harassed by the police and are not going to college. Some of the villagers, who had been employed in different industries, are also being harassed on being disengaged by the contractors and the students are being harassed by the police and are not going to college. He also alleged that police is dismantling the houses of the people, who have not been displaced, showing disrespect to the tombs of the tribal and also harassing the relations of the people opposing displacement and such persons are not being allowed to enter into the village. He further stated that on 12.5.2010, the police came to their village Chandia with firearms to dismantle the houses of people already displaced but dismantled the house of Markanda Banua and Sidu Jarika and when such conduct of the police was protested by the women of the village, police lathi charged them and later on rubber bullets were fired for which Laxman Jamuda sustained injuries and ultimately succumbed to the same. He also stated that women were misbehaved by the police on the said day. He also alleged that no developmental work has been undertaken during the last four to five months and the displaced villagers are not being paid the due compensation. One Jema Hanaga stated that on 12.5.2010, the hooligans of Tata Company and the police asked her to vacate her house and when she protested, she was manhandled and was assaulted. She also complained to have been hit by rubber bullet. One Chandra Mohan Jamuda, who is nephew of Laxman Jamuda, stated that the police came to their village to demolish his house and when attempts were made to demolish houses of families, who had been displaced, lathi charge was ordered and later on the police also fired at the male members for which Laxman Jamuda died of bullet injuries. He also stated that in the said incident his five years old daughter was injured by bullets. Lai Mohan Jamuda, who is Anr. nephew of Laman Jamuda, has also made a similar statement. He further stated that the dead body of Laxman Jamuda was taken away by the police and they were not allowed to see the dead body. He was taken to Kalinganagar Police Station and beaten up by the police there and that his signatures were taken by the police in blank sheets of paper and he was kept under police surveillance. He was taken to Kalinganagar Police Station and beaten up by the police there and that his signatures were taken by the police in blank sheets of paper and he was kept under police surveillance. But he managed to slip to his village in the evening of 14th May, 2010. One Laxmi Banara stated that he police demolished her house despite her protest, took away her household articles, and they were being helped by the anti-socials engaged by the Tata Company. One Jenamani Barla, who is a Ward Member, stated that no developmental work is being undertaken in the village and the Primary School, which is functioning in the village in a pucca building, was too inadequate to accommodate five classes and their complaints for completion of the Gram Panchayat building as well as the Primary School building are not being attended to. Sidhu Jarika, Anr. villager examined by the team, stated that on 12.5.2010 at 10 A.M. while he had and his wife were absent, the police demolished their house despite protest of his mother and some other women of the village. One Mina Jamuda stated that for last three years vaccination and immunization facilities are not being made available to the villagers and the health officer is afraid of going to their village apprehending assault by the villagers and she also complained that adequate control commodities are not being supplied and no new A.P.L. cards are being issued. Laxmi Banara, Anr. resident of the said village, also complained of looting her properties by anti-socials engaged by the Tata Company. The team thereafter visited village Baligotha and found some of the houses to have been dismantled. They recorded the statement of five villagers of the said village. Rajendra Kalundia, who happens to be the Sarpancha of Chandia Grama Panchayat, complained that no developmental work is being undertaken in the Gram Panchayat on the pretext that the lands in the area have already been acquired by the Government. No new old age pensions have been given, job cards given to the villager have been taken back and the village Primary School was been shot down since 2008. On a complaint lodged by him, A.D.M. informant that the entire village has been acquired and shifted to Tata Rehabilitation Colony. No new old age pensions have been given, job cards given to the villager have been taken back and the village Primary School was been shot down since 2008. On a complaint lodged by him, A.D.M. informant that the entire village has been acquired and shifted to Tata Rehabilitation Colony. So far as incident of 30th March, 2010 is concerned, he stated that while their was.a protest against the construction of "common corridor", police rushed into their village, burnt down some shop houses and took away the belongings. He also stated that no developmental work is being undertaken in the said village. One Dabar Kalundia stated that there are two tube-wells functioning in the village and some of the villagers met with untimely death for want of medical treatment as they could not be taken to hospital apprehending police atrocities. He stated that on 30.3.2010 when there was a protest from the side of the villager against construction of "common corridor", police started firing at 10.30 A.M., whereafter he left the spot. Thereafter, police in the process of chasing them rushed into the village, trespassed into seven to eight dwelling houses, destroyed the household articles and poured kerosene in wells. The team thereafter visited village Bandaragadia and did not find any inhabitant and all the houses there had been demolished and the villagers had left for the rehabilitation coJonies. In the said village, they recorded the statement of five witnesses and their statements indicate that displaced persons have pulled down their houses with assistance of police. However, they complained that the police is visiting the village and harassing the villagers for opposing displacement. They also stated that out of five tube-wells, only three are functioning in the village and at the time of protest against the construction of "common corridor1', some female and children of the village were beaten up by the police. The team also visited village Champakoila and recorded the statement of two persons. One Rasananda Bodara examined by the team stated that they are being harassed by the police for protesting against the displacement but details of such harassment were not narrated by the said witness. 6. We perused the statements of all the witnesses examined by the team and the report itself deals with all the statements as narrated above. One Rasananda Bodara examined by the team stated that they are being harassed by the police for protesting against the displacement but details of such harassment were not narrated by the said witness. 6. We perused the statements of all the witnesses examined by the team and the report itself deals with all the statements as narrated above. On analysis of the statements of villagers recorded in course of inquiry, we are of the view that it will be appropriate to deal with each village visited by the team separately so as to come to a conclusion as to whether the allegations made in W.P.(C) No. 9437 of 2010 are correct or not. So far as village Amabagadia is concerned, none of the villagers complained of any resistance by the police or confinement in the village at the instance of the police for the reason of their protesting displacement. No one also whispered a word about any harassment and it is also found that the control commodities are regularly supplied to the villagers and the village has also Primary and High School which are still running. So far village Gobaraghati is concerned, it appears that Dabar Angarai, a member of "Bisthapana Birodhi Janamanch" stated that they are being harassed by the police as they are opposing displacement and cases have been lodged against them, but at the same time, he also stated that he had never been detained in the police station at any point of time and regularly attends the meetings of the anti displacement forum. He also stated that his house was pulled down on 23rd April, 2010, but his family was found to be residing in an adjacent house. He also stated that lands were acquired in the year 1992 and they had got compensation but are not agreeable for acquisition of land as they are cultivating the same. He also stated that out of fear of police, male persons of the village are not moving out side but the ladies are going out. He also stated that they have a "Asha Worker" in their village and their village is having schools, both Primary and High School, where students are reading. The villagers are also getting control commodities regularly and widows are getting allowance. He also stated that they have a "Asha Worker" in their village and their village is having schools, both Primary and High School, where students are reading. The villagers are also getting control commodities regularly and widows are getting allowance. When this is the statement of Dabara Angaria, a different statement is made by Birasingh Bodra, a Primary School Teacher, who stated that he was not being harassed even though he is opposing displacement and regularly goes out of the village to attend his duties. He further stated that those persons, who have already been displaced, are only coming to the village with the help of the police to pull down their houses and take their belongings. One Sima Badra stated that police had assaulted her in presence of Collector, Tahasildar and the anti-socials engaged by the Tata Company on 12.9.2009 while she was moving in the village street. On analysis of the statements of the residents of village Gobaraghati, we find that there are contradictions in the statements of villagers so far as the allegation of police harassment is concerned, but it is the specific statement of the villagers that they are being supplied with the essential commodities and the Primary and High School are functioning. So far as village Kalamatia is concerned, it appears that three villagers were examined and it appears from the statement of the aforesaid three villagers that almost all the villagers of that village have left except two families which according to the rehabilitation norm consist of five families. They also stated that they are getting control commodities from the dealer at Chandia and they have also not complained of any kind of police harassment. So far as village Chandia is concerned, nine villagers were examined and it appears from the statement of these nine villagers that harassment at the hands of the police and anti-socials engaged by the Tata Company has been alleged. On close scrutiny of the statements of these villagers, we find that out of fear of police, many guardians are unable to admit their children in the college and many of the villagers of that village have been lodged in jail. They also stated that on 30th March, 2010 while protesting against the construction of "common corridor", they were assaulted. On close scrutiny of the statements of these villagers, we find that out of fear of police, many guardians are unable to admit their children in the college and many of the villagers of that village have been lodged in jail. They also stated that on 30th March, 2010 while protesting against the construction of "common corridor", they were assaulted. It is also alleged that on the said date police destroyed their houses, rice and paddy and also poured kerosene on the paddy and took away the goats and caused damage to the household articles. It also appears that on that date women protectors were misbehaved by the police and in the process of demonstration and protest, there was police firing and one Laxman Jamuda sustained injuries in course of such firing and ultimately succumbed to the injuries. One Meena Jamuda, who is a control dealer as well as a "Asha Worker" stated that for the last three years vaccination and immunization facilities are not being made available and the health officer on the pretext of apprehending assault by the villagers is not taking any step for vaccination and immunization. She also stated that adequate control commodities are not being supplied and no new A.P.L. cards are being issued. On examination of the statements of those villagers of the village Chandia, we find that there is a complaint of police harassment, inadequate supply of control commodities as well as non-availability of vaccination and immunization facilities. So far as Baligotha is concerned, five of the villagers of the said village were examined and it appears that Primary School has been shut down since 2008 and no development work has been undertaken in the said village. It is also alleged that on 30th March, 2010 when there was a protest against the construction of "common corridor", the police rushed into their village, burnt down shop rooms, took away money from the burnt shops, pulled down the houses of some villagers and also took away the cattle of the villagers, but one of the villagers stated that only one police person entered into the village for the purpose of demolishing the houses and such demolition was carried on as per the identification made by the displaced persons. It also appears that two tube-wells are functioning in the village and it was also stated that some villagers have met with death due to want of timely medical treatment as they could not be taken out of village .because of fear of police. So far as village Gadapur is concerned, five villagers of the said village were examined and some of them complained of police atrocities for protesting against the displacement. They also stated that they are getting control commodities and some old widow pensioners are getting pension but no new case of pension for widows is being sanctioned. The last village visited by team was Champakoila where two of the villagers were examined. Though the general allegation of police harassment was made, a details thereof were not stated by either of two villagers. 7. On analysis of the grievance of the villagers, we dispose of both the writ applications by issuing the following directions :- (1) There being no allegation of non-supply of essential commodities to the aforesaid villages, except an allegation that there is inadequate supply of essential commodities to village Chandia, we direct the opposite parties to take necessary steps for adequate supply of essential commodities to the residents of the said village Chandia. (2) Though it appears that all the villages.have tube-wells for supply of drinking water, at one or two places some of the tube-wells are not functioning. The opposite parties are, therefore, directed to make the defunct tube-wells functional as early as possible preferably within a period of one month. (3) So far as police harassment is concerned, the allegations are that the police with the help of anti-socials engaged by Tata Company are forcibly demolishing the houses. Considering such nature of allegations, it is directed that those displaced persons, who have shifted to rehabilitation colony, be permitted to take back their belongings from their houses and they may also be permitted to demolish their houses. If police protection is necessary for the above purpose, it may be made available only for the above purpose. (4) As is evident from the statements collected from the villagers the male members are afraid of going out the village but there has been no restriction on their movement. If police protection is necessary for the above purpose, it may be made available only for the above purpose. (4) As is evident from the statements collected from the villagers the male members are afraid of going out the village but there has been no restriction on their movement. It is, therefore, directed that if the male members of the village want to go out of the village, they shall not be restricted and medical facilities be made available to the residents till they are rehabilitated in accordance with the scheme. (5) So far as engagement of anti-socials by Tata Company is concerned, there appears to be variation in the statements of the villagers. Some of the villagers though alleged that the police is taking help of anti-socials engaged by Tata Company, some Ors. have stated that supporters of industrialisation are helping the police in evacuating the villagers. There being no specific allegation as to who are anti-socials engaged by Tata Company, it would not be appropriate on our part to assume that it is the Tata Company which has engaged anti-socials to help the police in evacuation as alleged. However, it is directed that in the event, any action is required to be taken in accordance with law, such action should be taken only by the police officers and help of outsiders should not be taken. (6) So far as construction of "common corridor" is concerned, it is necessary in an industrial belt and, therefore, the same cannot be stopped. In the process for construction of "common corridor" if private lande are acquired, the owners are entitled to compensation. Therefore, we decline to interfere with the decision of the opposite parties to construct the "common corridor" and also decline to accept the prayer that construction of "Common Corridor' be kept in abeyance till completion of enquiry and submission of report by Justice P.K. Mohanty Commission. (7) So far as death of Laxman Jamuda is concerned, it is evident from the statements made by the villagers that in course of maintenance of law and order, there was police firing and in course of such incident, Laxman Jamuda died of injury sustained by him and some Ors. were also injured. (7) So far as death of Laxman Jamuda is concerned, it is evident from the statements made by the villagers that in course of maintenance of law and order, there was police firing and in course of such incident, Laxman Jamuda died of injury sustained by him and some Ors. were also injured. As stated earlier, the incident having taken place in course of maintenance of law and order, the only question that is required to be determined is as to whether their was any necessity of firing and as to whether the police has exceeded in its action in firing at the protectors without any necessity. In order to find out as to whether their was necessity of firing or not, it is open to the Government to cause an administrative enquiry and if it is found that firing was not necessary considering the nature of the protest, the erring officers can be proceeded against. We, therefore, direct the State Government to consider this aspect and pass appropriate order to cause an administrative enquiry into the said incident and submit a report to the Government within a specified time.