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2017 DIGILAW 10 (ORI)

Durga Prasad Moharana v. Railway Board

2017-01-02

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT S.N.PRASAD, J. - This writ petition is against the order dated 12.09.2014 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.422 of 2012 whereby and where under the claim of the petitioner for getting appointment under the rehabilitation scheme has been rejected. 2. The brief fact of the case is that the applicant-petitioner is the grandson of a land oustee whose land appertaining to Plot No.1529 (p) under Khata No.228, Mouza-Godiputmatiapada, measuring Ac.0.07 was acquired by the Railways in the year 1999 for the purpose of Khurda Road – Balangir New B.G. Link Project. The grandfather of the petitioner has received compensation to the tune of Rs.6174/-. The Ministry of Railways has issued Notification on 16.7.2010 for providing employment to one of the family members of the land oustees in deserving cases as against the land acquired by the Railways for the project and accordingly the applicant having come within the purview of the scheme submitted an application on 22.11.2011 to the Divisional Railway Manager for consideration of his case for appointment under Rehabilitation Assistance Scheme. Since no action was taken on the said application, the petitioner moved the Central Administrative Tribunal of its Cuttack bench, Cuttack by filing an original application being O.A. No.422 of 2012 but the Tribunal did not entertain the Original application and as such, the petitioner is before this Court assailing the order passed by the Tribunal by way of this writ petition. 3. The petitioner while assailing the order passed by the learned Tribunal has raised the ground that the issue raised by him is squarely covered by the judgment rendered by this Court in the case of Krushna Chandra Nayak Vrs. Railway Board, reported in 2012 (II) OLR 333 wherein, this Court in similar facts and circumstances has been pleased to hold that the circular dated 16.7.2010 will be applicable so far as the land having been acquired in the year 2001. He further submits that the order passed by this Court has been affirmed by the Hon’ble Apex Court in SLP (C) No.2484 and 2486 of 2015 against which review petition has been filed by the Railway Board which has also been dismissed by the Hon’ble Apex Court. He further submits that the order passed by this Court has been affirmed by the Hon’ble Apex Court in SLP (C) No.2484 and 2486 of 2015 against which review petition has been filed by the Railway Board which has also been dismissed by the Hon’ble Apex Court. On the basis of these grounds the learned Counsel for the petitioner submits that the petitioner is also to be given the benefit of appointment since the issue has already been decided by this Court and affirmed by the Hon’ble Apex Court. 4. Learned Counsel appearing for the Railway Board has not disputed the legal position i.e. the judgment rendered by this Court in the case of Krushna Chandra Nayak (supra) and the order passed by Hon’ble Apex Court affirming the judgment passed by this Court in the said case. 5. We have heard the learned Counsel for the parties and perused the documents available on record. 6. The fact which is not in dispute in this case is that the applicant-petitioner is the grandson of the land oustee whose land appertaining to Plot No.1529 (p) under Khata No.228, Mouza-Godiputmatiapada, measuring Ac.0.07 was acquired by the Railways in the year 1999 for the purpose of Khurda Road – Balangir New B.G. Link Project, against which his father has received the amount of compensation to the tune of Rs.6174/-. The Ministry of Railways has come out with a notification containing a provision to provide appointment to the dependent of the displaced person by way of issuance of notification on 16.7.2010. The applicant being the dependent of the land oustee, has made an application before the competent authority for providing appointment under the Rehabilitation Assistance Scheme having been launched by virtue of notification dated 16.7.2010 but the same has been rejected by the authorities for the reason that the land since having been acquired in the year 1999 and the compensation having been paid in the year, 2001, the transaction has been concluded and hence the petitioner cannot be given benefit of the notification dated 16.7.2010 being not applicable with retrospective date. 7. 7. The petitioner had challenged the same before the Central Administrative Tribunal and the Tribunal, after taking into consideration the date of issuance of notification dated 16.7.2010, assigning the reason that the said notification cannot be implemented with retrospective effect, has declined to entertain the Original Application, which is under challenge in this writ petition. 8. Learned Counsel for the petitioner has presented before this Court the copy of order passed in the case of Krushna Chandra Nayak (supra). We, after going through the order passed by a Coordinate Bench of this Court, have found that the land of Mr. Krushna Chandra Nayak was also subject matter of Land Acquisition Case No.5 of 1999 and by virtue of the order passed by the Land Acquisition Authority, the amount of compensation to the tune of Rs.78,292/- was granted which was received by the family of the titled holder on 25.5.2001. We further find that the dependent of the land oustee, namely, Krushna Chandra Nayak had made an application for getting appoint under Rehabilitation Assistance Scheme having been notified on 16.7.2010 but he has been denied with the offer of appointment which has been assailed before the learned Tribunal, subsequently came before this Court and this Court have formulated the specific issues to the effect as follows : (i) Whether the notification dated 16.7.2010 issued by the Railway Board is applicable to the case of the present petitioner ? (ii) Whether the petitioner is entitled to get the benefit flowing from the said notification dtd. 16.7.2010 ? (iii) Whether the Tribunal is justified in dismissing the petitioner’s O.A. on the ground that since the land acquisition process has been concluded much prior to the notification/instruction dtd. 16.7.2001, the same shall not be made applicable retrospectively unless and otherwise specifically provided therein ?” 9. While answering the issue regarding applicability of notification dated 16.7.2010 issued by the Railway Board as to whether it is applicable in case of the petitioner whose land has been acquired in the year 1999 and the compensation has been paid and received on 25.5.2001, has answered the issue by holding therein that the notification dtd. 16.7.2010 is also applicable to the land oustees whose lands have been acquired prior to issuance of notification dated 16.7.2010. 10. 16.7.2010 is also applicable to the land oustees whose lands have been acquired prior to issuance of notification dated 16.7.2010. 10. This Court has come to this conclusion on the basis of the condition mentioned under Clause 3 of the notification dated 16.7.2010 which speaks that the Railway Administration should request the concerned Competent Authority/Land Acquisition Officer to issue certificate (s) to those persons whose land has been acquired to facilitate proper verification of the claims, that the notification dated 16.7.2010 is also applicable to such case in which compensation has been paid after acquisition of land. 11. We, on examination of the facts of the instant writ petition, have found that this case also pertains to the district of Puri related to the Land Acquisition Case No.5 of 1999, which was subject matter in the case of Krushna Ch. Nayak (supra) and as such there is no reason to deny the benefit to the petitioner of the instant writ petition. Moreover, the order passed by this Court has been affirmed by Hon’ble Apex Court in S.L.P. (C) No.2484 & 2486 of 2015 as has been informed by the parties at Bar. It has further been submitted at Bar by producing a copy of the order passed by Hon’ble Apex Court in a review petition which has been filed by the Railway Board for review of the order passed by Hon’ble Apex Court in SLP (C) No.2484 and 2486 of 2015 and the Hon’ble Apex Court vide order dated 26.8.2015 has been pleased to dismiss the review application both on the ground of limitation as also on merit. 12. We after taking into consideration the settled issue as per the discussion made herein above, are of the considered view that the order passed by Tribunal is not sustainable and accordingly the same is quashed. 13. We further direct the authorities to consider the case of the petitioner for appointment in the light of the notification dated 16.7.2010, if he is otherwise eligible. 14. The writ petition is disposed of with the observation and direction made herein above. Petition disposed of.