Dr. B.R. Sarangi, J@mdashThe petitioners, who are the legal heirs of the land oustees and displaced persons under the provisions of the Rehabilitation and Resettlement Scheme of the Government of Orissa have filed this writ petition seeking to quash the order dated 04.08.2010 vide Annexure-8 rejecting their representation for employment under the said scheme on the plea that they are coming under Category "D? and therefore, they are not eligible for the same though similarly situated persons have been absorbed in employment under the scheme and further seeking for a direction to provide immediate employment assistance/benefits to them.
2. The short fact of the case in hand is that Mahanadi Coal Fields Ltd. (in short ''MCL'') is a subsidiary of Coal India Ltd. and a wholly owned Government of India concern, having its registered office and area of operation in the State of Odisha. The father of the petitioners, namely Deba Pradhan was the co-owner of the land measuring Ac. 6.08 dec. in Mouza Hensmul, Khata No. 20 along with Iswar Pradhan, Jeevan Pradhan and Laxmidhar Pradhan. The said land measuring an area Ac. 6.08 dec. stood recorded in the name of the eldest brother, namely Iswar Pradhan. Out of the said total area of Ac. 6.08 dec., an area of Ac. 5.67 dec. was acquire by the MCL for mining purpose for its Ananta Open Cast Mining Project. Accordingly, the father of the present petitioners along with three brothers, as indicated above, lost 60 percent of their land, which was acquired by the MCL for its mining purpose. For rehabilitation and resettlement of the displaced persons/families due to S.E.C.L. projects at Sambalpurand Dhenkanal Districts, the Govt. of Orissa in Revenue and Excise Department framed an uniform guideline, which has been issued on 02.01.1989 vide Annexure-A/4. As per Clause-4 of the said guideline, the provisions of employment has been prescribed for such displaced persons for their rehabilitation and resettlement. The father of the present petitioners being a displaced person in view of acquisition of his share of land by the MCL for its mining project, is entitled and eligible for all the benefits not only under the provisions of the Land Acquisition Act but also in view of the agreement between the State of Odisha and MCL, which has come into existence due to reorganization of the erstwhile Southeastern Coal Field Ltd., which is a subsidiary of Coal India Ltd. Under the policy decision, in conformity with Office Memorandum dated 03.02.1986 issued by the Government of India in the Ministry of Industries, Department of Public Enterprises (Bureau of Public Enterprises) in the matter of land acquisition and rehabilitation of displaced persons in major project area. The Government of India issued guidelines in the matter of land acquisition project and alleviation of the affected or displaced persons. Under the said policy with regard to rehabilitation aspects of the displaced persons and each land acquisition, it was decided to have a small rehabilitation cell and that will identify the persons who had been treated as dispossessed persons following acquisition of their land and forward a list of such persons to the project authorities. Under the said scheme for rehabilitation and resettlement of the displaced persons/families a list was prepared by the State Government in consultation with the MCL authorities to provide necessary assistance by way of employment or compensation to the displaced persons of the area. The erstwhile South Eastern Coal Field Ltd. (now MCL) proposed to acquire land in the undivided district of Dhenkanal (which now includes the new district Angul) for implementation of its project for development of coal field, the State Government communicated the Collector, Dhenkanal (now Angul) that after careful consideration it has been decided to approve the guideline for rehabilitation of identified persons who are affected of their land being acquired for implementation of mining project. The eligibility and benefit of employment for such displaced persons, which has been spelt out in the said guidelines of the State Government, was circulated vide letter dated 02.06.1998. The eligibility of a family to have one of its members to avail the employment opportunity was to be ascertained through the joint inquiry by the committee consisting of representations of erstwhile South Eastern Coal Field Ltd. (now MCL) and the Collector of the concerned district. This decision of rehabilitation including employment of one member of the family affect as a condition of acquisition of land was again reiterated by the Government by the letter addressed to the Collector dated 02.01.1989. As a matter of principle MCL also accepted the condition of providing employment assistance for displaced persons/families whose land have been acquired for mining purpose and to provide other benefit prescribed under such policy/guideline meant for rehabilitation and resettlement of displaced persons/families in case of mining project in the State. Since an area of Ac. 5.67 dec. out of Ac. 6.08 dec. of the petitioners in Mouza-Hensmul under Khata No. 20 was acquired by the MCL for its mining project under Ananta Open Cast Mining Project, the petitioners were entitled to get benefit of the rehabilitation and resettlement scheme pursuant to the guideline of the State Government dated 02.01.1989 vide Annexure-A/4. The petitioners'' case was identified and sent to MCL authorities by the Collector, Angul for getting employment under the said scheme being the sons of Deba Pradhan, whose share of land has been acquired by the MCL authorities. Accordingly, petitioner No. 1 was asked by the MCL authorities to appear before the Selection Committee on 19.08.1992 for examining his case for employment, vide letter dated 12.08.1992 of the Addl. Chief Personnel Manager, Jagannath Area in Annexure-1. Pursuant to such communication petitioners appeared before the Addl. Chief Personnel Manager, Jagannath Area with all the documents for consideration of their case for employment under the Scheme, but the father of the petitioner was communicated with the letter dated 21.05.1997 under Annexure-2 that the case of the petitioners could not be considered as they do not have vacancies of job for land oustees in Category "D? as per the Rehabilitation Scheme formulated by the Government of Odisha. Prior to the receipt of such communication from the MCL authorities denying employment to the petitioners, the father of the petitioners along with his another brother namely, Laxmidhar Pradhan had sent a representation addressed to the Collector, Angul with copy to MCL giving therein the details of their land acquired by the MCL for its mining project and also the fact that four employment has already been provided by the MCL to the nominees of other two joint owners of the land, namely, Sri Iswar Pradhan and Jeevan Pradhan, while refusing to provide such employment to the nominees of the other two land owners of the land namely, Deba Pradhan and Laxmidhar Pradhan vide their representation dated 08.07.1996 in Annexure-3. Similar representation has also been made by Deba Pradhan and Laxmidhar Pradhan to opposite party No. 1 on 25.06.1996 vide Annexure-4. In spite of all efforts being made by the petitioners along with their father by running from pillar to post no action has been taken by the authority. Subsequently, in November, 1998 the State Government in the Revenue and Excise Department published another Rehabilitation Scheme for the displaced persons in the mining project of the State which is almost similar to the earlier scheme of the State Government published on 02.01.1989 vide Annexure-A/4, wherein the eligibility criteria for rehabilitation benefits, which has been indicated under the heading employment''. Under the said Scheme, it is provided that while setting up of mining project the authorities will have to give preference to the nominated members of the displaced family in providing employment either in the project or its ancillary unit. Challenging the rejection of the grievance for employment the petitioners filed a writ application before this Court in OJC No. 5178 of 2002 and this Court after due adjudication disposed of the said writ petition directing that if the petitioners would file a representation enclosing all the relevant documents within a period of two weeks the authorities concerned shall consider the same on merits. In view of the fact that the petitioners were within the age limit at the time of filing of the application and that the writ petition was pending for last seven years, this Court directed that the authorities shall consider the representation filed by the petitioners liberally and disposed of the same as expeditiously as possible within a period of six months from the date of receipt of such representation, if there is no other impediment. In compliance to the direction of this Court, the petitioners filed a detailed representation before opposite party No. 2 by incorporating all the documents as directed well within the time stipulated, but the said representation was rejected on the ground that the petitioners cannot be offered employment as the family is placed in Category "D? as per the provisions of uniform guidelines for rehabilitation issued by Govt. of Odisha in the year 1989 and their agricultural land in Dera village has not been acquired. It is further stated in the said rejection letter that Category "D? land oustees are not being considered for employment by MCL except in the village Danara of Hingula Area (the then Kalinga Area) as decided in the 8th meeting of the Rehabilitation Advisory Committee held on 23.05.1998 at Angul. It is further stated that compensation other than employment, if any, as admissible as per the guidelines shall be provided. Such rejection of representation was communicated vide letter dated 04.08.2010 by MCL to the Collector, Angul which is under challenge before this Court in the present writ petition.
3. Mr. P. Behera, learned counsel for the petitioner strenuously urged that the reasons assigned in rejecting the claim of the petitioners cannot be sustained in the eye of law in view of the fact that the opposite parties are bound by their own Scheme and such scheme has prescribed extension of benefit of rehabilitation resettlement by giving employment to one of the members of the land oustees? family and as such the authorities cannot make a discrimination in extending such benefits to the extent when they have provided four employment to the nominees of two co-owners of the land namely, Iswar Pradhan and Jeevan Pradhan and two employment has also been provided in other cases in 1996. He further submitted that had the petitioners? case been taken into consideration in 1996, the petitioner No. 1 being two co-joint owners of the displaced family could have equally got an employment under the scheme and rejection of their claim on the ground that MCL authority cannot offer employment to the family of a displaced person placed in Category "D? as per the provisions of uniform guidelines for rehabilitation issued by the Government of Odisha in the year 1989. Such action of the authorities is illegal, arbitrary, unreasonable and contrary to the provisions of law, which violates Article-14 of the Constitution of India.
4. Mr. N.C. Sahoo, learned counsel appearing for opposite party Nos. 1 and 2, while admitting the factum of acquisition of land for the purpose of open cast mining also admits that as per the rehabilitation guideline dated 02.01.1989, the names of the petitioners were sponsored by the Special Land Acquisition Officer, MCL, Angul and Collector, Angul for joint Scrutiny under Category ''D'' for consideration for employment by letter dated 06.09.1991 and as there was no vacancy for the land oustees under Category ''D'' and therefore, they are not given employment, which was communicated by the Addl. General Manager, Jagannath area MCL, vide Annexure-2. Thereafter, assailing the said order the petitioners approached this Court in OJC No. 5178 of 2002 and this Court disposed of the writ application on 16.12.2009 directing the authorities to reconsider the matter of the petitioners by taking into consideration the fresh representation filed by them. It is stated that the land losers have been categorized as per the priority and necessity. The petitioners being under Category ''D'' their rehabilitation employment is subject to availability of vacancy. Since there was no vacancy was available, the benefit of rehabilitation employment cannot be extended to them. It is further stated that rehabilitation employment after 23 years of issuance of the notification under Section 4(1) of the Land Acquisition Act, is contrary to the Rehabilitation Assistance Scheme, thereby, no illegalities or irregularities have been committed in rejecting the claim of the petitioners.
5. Clause-2 of the uniform guideline for rehabilitation of the displaced persons/families due to S.E.C.L. Projects at Sambalpur and Dhenkanal districts vide Annexure-A/4, which deals with eligibility for rehabilitation reads as follows:
"2. A family/person shall be eligible for rehabilitation benefit if:
a) all the lands of the family have been acquired.
b) more than 1/3rd agricultural lands along with homestead land has been acquired.
c) only homestead land has been acquired.
d) homesteadless persons residing in the village.
This is to be ascertained through joint enquiry by a committee consisting of representatives of the South Eastern Coal Fields Ltd. and the Government (Collector of the District)."
Clause-4 of the said Scheme deals with employment which reads as follows:
"4. Employment:
a) One member from the family sustaining loss of dwelling houses, homestead land and agricultural lands not less than 1/3rd of the total holding shall be provided with employment on a priority basis.
b) One member of each family having sustained loss of 3 acres of non-irrigated land or 2 acres of irrigated land shall be provided with employment on second priority.
c) In case of families having lost only homestead land or the total agricultural holding, one member from each family shall be provided with employment according to availability.
d) 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.
e) Rehabilitation of other displaced families shall be made through self employment schemes."
6. In view of the eligibility criteria mentioned in Clause-2 of the guideline and eligibility for employment classified in Clause-4 of the said guideline has mentioned above, since the petitioners? family have lost 1/3rd of the total agricultural holding, one member of each family shall be provided with employment according to availability as per sub-Clause-(d) of Clause-4 of the Scheme. As such, there is no dispute with regard to eligibility to get employment as per the Scheme evolved by the State Government which has been agreed upon by the opposite parties. Admittedly, the petitioners have been classified as Category-''D''. As per the Scheme they are entitled to employment, which has been recommended by the Special Land Acquisition Officer to the Collector, Angul for providing employment in consonance with the guideline. The factum of recommendation has also been admitted in the counter affidavit filed by the opposite party Nos. 1 and 2. Therefore, there is no dispute that the petitioners? family are covered under the Scheme evolved by the State Government in Annexure-A/4, rather in view of the admission made by the opposite parties in the counter affidavit, the petitioners are entitled to be provided with employment as per the Scheme evolved by the State Government with only a rider that subject to availability of vacancies. On perusal of the impugned order in Annexure-8, it appears that the opposite parties Nos. 1 and 2 have rejected the claim of the petitioners on the ground that Category ''D'' oustees are not being considered for employment by MCL except in the village Danara of Hingula Area (the then Kalinga Area) as decided in the 8th meeting of the Rehabilitation Advisory Committee held on 23.05.1998 at Angul. The reasons of rejection of the claim of the petitioners is discriminatory one to the extent that if the villagers of Danara of Hingula Area (the then Kalinga Area) have been decided to extent the benefit of compassionate appointment by way of resettlement, the petitioners have been stood in the same footing ought not to have been discriminated. At the same time the petitioners in para-10 of the writ petition have pleaded as follows:
"10. That even prior to the receipt of the such communication from the Mahanadi Coal field Ltd. authorities denied employment to the petitioner, the father of the petitioner along with his another brother-Laxmidhar Pradhan had sent a representation addressed to Collector, Angul with copy marked to the Mahanadi Coal field Ltd. authority, giving therein the details of their land acquired by the MCL for its Mining Project and also the fact that 4 (four) employment has already been provided by the M.C.L. to the nominees of other two joint owners of the land Sri Iswar Pradhan and Jeevan Pradhan, while refusing to provide such employment to the nominees of the other two joint owners-Sri Deba Pradhan and Laxmidhar Pradhan. True copy of the representation of Sri Deba Pradhan and Laxmidhar Pradhan addresses to the collector, Angul dtd. 08.07.1996 is annexed herewith an ANNEXURE-3.
Similarly representation had also earlier been made by Sri Deba Pradhan and Laxmidhar Pradhan, addressed to the Chairman-cum-Managing Director, M.C.L. with copy marked to the Collector, Angul giving the details of the land owner and the extend of land acquired by the M.C.L. for its Mining Project and as to how the two joint owners of the said land Sri Iswar Pradhan and Jeevan Pradhan have been provided with four employment to their respective nominees while denying the same benefit of employment to the other two co-owners-Deba Pradhan and Laxmidhar Pradhan. True copy of the representation of Sri Deba Pradhan and Laxmidhar Pradhan dtd. 25.06.1996, addressed to the opp. party No. 1 is annexed herewith as ANNESURE-4."
7. A specific reply has been given by the opposite party Nos. 1 and 2 in their counter affidavit in para-12 which is reads as follows:
"That in reply to the averments made in Para-10 to 12 of the writ petition, it is submitted that since there was no vacancy in category-D, repeated representations is of no relevance. That the co-sharers of the father of the petitioner are similarly placed is incorrect".
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.
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"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."
11. 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.
12. In that view of the matter, the impugned order dated 04.08.2010 rejecting the claim of the petitioners vide Annexure-8 cannot sustain and accordingly, the same is quashed. The opposite parties are directed to provide employment to the petitioners forthwith as against two vacancies within a period of two months from the date communication of this order.
13. The writ petition is allowed to the extent indicated above. No order as to costs.
