UDAY UMESH LALIT,J. - (1.) WRIT Petition (Civil) No.404 of 2008 has been filed in public interest seeking to highlight failure on part of State of Orissa in deploying adequate Police Force to maintain law and order in Kandhamal District of Orissa and in protecting innocent people whose human rights were violated after the unfortunate assassination of Swami Laxmanananda Saraswati and others on 23.08.2008 by some Maoists. Writ Petition (Civil) Nos.76 of 2009, 396 of 2009 and Writ Petition (Criminal) No.126 of 2012 also highlight the same issues. All these petitions inter alia pray for directions to the concerned authorities to provide proper and adequate facilities in refugee camps, to prevent communal violence, to provide adequate compensation to the victims of such communal violence, to order institution of Commission of Inquiry by a serving or a retired judge, to order investigation into the crimes committed during such violence by Central Bureau of Investigation ("CBI" for short) and to set up special courts to deal with and try the offences committed during such violence. These petitions were heard together with Writ Petition (Civil) No.404 of 2008 as the lead matter.
(2.) THE incident and circumstances that led to the unrest and communal violence were dealt with in the Report of the Investigating Team of the National Human Rights Commission (hereinafter referred to as the "NHRC"), certain portions of which for the sake of facility are reproduced hereunder: "On 23.08.2008 at 19.55 hrs. when Swami Laxmanananda Saraswati was in his room, some armed men attacked his Jalespetta Ashram. Two of them took control of the four unarmed recruits standing outside the Ashram at gun point. The rest of them entered the Ashram and started indiscriminate firing killing Swami Laxmanananda Saraswati in the attached toilet of his room where he tried to hide himself. Mata Bhakti Mai and Kishore Baba were killed in the adjoing room. Simultaneously, some of them went into the room of the Personal Security Officer (PSO) who was not present that day and killed Swami Amrita Nand and local villager Puranjan who were lying in that room. The attackers fired about 50 rounds in fifteen minutes and ran away from the Ashram. In this regard FIR No. 37/08 u/s 147/148/149/452/302/120 -B/IPC, PS -Tumdibandh was registered on the statement of the eyewitness Brahmachari Madhab Baba........................................... The violence in the present case started after the death of the Vishwa Hindu Parishad leader Swami Laxmanananda Saraswati allegedly by the Christians supported by the naxalites. The violence spread after the procession of the dead body of Swami Laxmananana Saraswati was taken through various parts of the district on a grand scale. Although the large scale violence started after his death, the cracks within the society were already existing as is evident from the data regarding clashes between these communities in the previous years (ref report of SP Kandhamal at P -911 -913 of Annexure -II). This is also evident from the fact that litigations between both the communities are existing on the issue of reservation for the SC (Pano) Christians."
(3.) WRIT Petition No.404 of 2008 filed on 02.09.2008, came up before this Court on 03.09.2008. This Court thereafter passed various orders from time to time to ensure that the situation was brought under control and relief in full measure was extended to the victims. Following were the orders passed by this Court: A. 3.09.2008 "Issue notice. Learned Addl. Sol. General/counsel for respondents appear and accepts notice. The first respondent through its Chief Secretary is directed to file its response by way of an affidavit by tomorrow morning as to what steps are being taken to protect the life and property of the affected people in the State and also regarding the proposed yatra on ensuing Friday. The Secretary General is directed to send a copy of this order through telegram/fax to the Chief Secretary, State of Orissa immediately. List the matter on 4.9.2008 at 2.00 p.m." B. 4.09.2008 "Heard learned senior counsel for the petitioner, learned Additional Solicitor General and learned senior counsel appearing for the State. Pursuant to our directions, Chief Secretary of the State of Orissa has sworn an affidavit given all the details taken place in the State of Orissa to control the violence erupted recently. In the affidavit, it is stated that all possible steps have been taken by the Government especially in the Kandhamal District. It is stated that there are 17 police stations in the District and in all these police stations necessary officers have been deployed and the service of the CRPF, Reserved Armed Forces (RAF) have also been obtained and deployed. 15 companies of CRPF, 24 platoons of Orissa State Armed Police (OSAP) and in addition to the District S.P. and other officers has taken adequate steps and has given security to those people visiting as well as for protection of others would be provided. It is also stated, the State will take all possible steps to maintain law and order in the event of any proposed Yatra by any one whatsoever. The State Government has been dealing with all the situations firmly and even handedly and will continue to do so. Learned Additional Solicitor General submitted that yesterday the Union Home Minister visited the State of Orissa and even in some of the relief camps and satisfied with the service and they are properly operated. But it is submitted that still tension prevails in the State and adequate CRPF force has already been deployed to help the State Police to maintain the law and order situation and learned senior counsel appearing for the State of Orissa requested that in view of the tension four more new Battalions would be required in the State and learned Additional Solicitor General submits that urgent steps would be taken to deploy the required force. As regards the proposed Yatra to be organized by the section of the people, it is submitted all possible steps would be taken to prevent any Yatra being held and police and other para military forces to make possible steps to prevent any untoward incident being taken place. Section 144 has already been imposed in the State in all the districts where tension prevails. Learned counsel for the petitioner stated that even Yesterday night some of the houses were burnt out in Tikabali and Daringabadi villages. Learned counsel appearing for the State submitted that so far no such information has been received by them and the matter would be enquired into and urgent steps would be taken in these areas also to prevent any breach of law and order situation. We hope the State police along with CRPF and other para military forces would ensure the law and order situation and people's life and property will be protected to best of their ability. The State Government would also take urgent steps to see that those who are in the relief camps are protected and no miscreants shall be allowed to visit the camps to create any problem......." C. 22.10.2008 "On 4.9.2008, this Court had passed an order and expected that the State Government of Orissa would take all possible steps to control the violence that had been happening at the State of Orissa after the unfortunate killing of Swami Laxmanananda on 23.08.2008. We are told by the counsel for the petitioner that even after the incident, it was alleged that about 906 houses had been destroyed and about 19 churches have been partly damaged/burnt and 21 persons have been killed, including two policemen, and some incidents of rape have also occurred. In the additional affidavit the petitioner has alleged that large number of persons are in the relief camps. He further contended that the workers of the Non -Governmental organizations are not being allowed to meet the persons in the relief camps or to render help to them. The petitioner is also aggrieved by the stand taken by the State in not giving any compensation to the churches which had been destroyed/damaged by the miscreants. As regards one victim who had been allegedly raped, the petitioner wants that the investigation should be handed over to the CBI. Heard learned senior counsel appearing for the petitioner, the State and learned Additional Solicitor General for the Union of India. The Principal Secretary, Home Department of the State of Orissa has filed a detailed additional affidavit dated 17.10.2008 wherein it was stated that enough policemen had been deployed in the area and the learned senior counsel for the State highlighted all the details that were given in the counter affidavit. It is also stated by the learned counsel that, apart from these police forces, there are also additional police and paramilitary personnel, sent by the Government of India who were allowed to be in the State, be allowed to continue at least till the end of December, 2008, i.e. till the festival season is over. As regards the alleged rape, it is stated that nine accused have so far been arrested by the police and the victim is not cooperating with the police for having the Test Identification Parade............................................. ........As the accused have already been arrested, we do not think that at this stage, the further investigation should be handed over to the CBI. In the interest of victim and all others, we wish that the victim would cooperate with the State police for the further investigation of the case. Learned senior counsel appearing for the State submitted that the relief camps are working well and all such details have been stated in the affidavit filed by the Home Secretary. We make it clear that any member of the NGO can associate in the Committee coordinating the relief work in the relief camps. Sufficient security also be provided by the State in the relief camps. The State is also agreed to give compensation to the victims. It is stated in the affidavit of the State that Rs. 50,000/ - is being given for the fully damaged house, Rs.25,000/ - for partly damaged house and Rs.2 lacs each is being given to the damaged pubic institutions like schools, hospitals, etc. and Rs.2 lacs each from the Chief Minister's Relief Fund to each of the families of the persons killed in the violence. The petitioner has prayed that the churches which are being destroyed or partly damaged should also be given their financial assistance. Learned counsel appearing for the State submitted that the State has taken a policy that religious or worship place of any religion is not being given any financial assistance though several institutions working under these religion are being given. We are told by the counsel for the petitioner that approximately 16 churches have been fully or partly damaged. As regards the damaged churches also the State can have a generous attitude on the matter and assess the damage of those churches or other religious places and render reasonable help to rebuilt the same. We hope that the State could create an atmosphere where there shall be complete harmony between the groups of people and the State shall endeavour to have discussions with the various groups and bring about peace and do all possible help to the victims. The existing battalions/police force sent by the Government of India would continue till the end of December, 2008. The State has also submitted that fast track courts are established to clear the cases arising out of these incidents....." D. 5.01.2009 "This Court by an order passed on 22.10.2008 indicated that sufficient paramilitary forces be deployed in the State of Orissa till December, 2008. Learned counsel for the State submits that still these forces are required in the State to maintain the law and order situation even if removal of group of battalion is necessary the same should be done in a phased manner. We make it clear that the State Government may have discussions with the Home Secretary of the Home Ministry and take an appropriate decision having regard to the law and order situation prevailing in the State for protection of minorities in the State. The learned counsel appearing for the petitioner stated that large number of churches have been demolished and the State Government is giving meager amount by way of compensation. Some churches and religious places were in existence which are being destroyed and the State Government is not giving any compensation on the ground that there is some dispute regarding the land. The Government may formulate a scheme regarding these religious places and take appropriate decision......." E. 13.04.2009 "Heard learned counsel for the petitioners. It is alleged by the petitioner that large number of houses were either destroyed or partially damaged and in some cases compensation has been given to the owners of these houses. It is also alleged by the petitioners that nearly 183 churches have been partially damaged and compensations have been paid only in respect of five churches. The petitioners also states that about 93 persons have died in the various incidents but, according to an estimate of the State, only 32 persons have died and the compensations have not been given to the dependents of these persons, who died. The petitioners also allege that large scale unemployed person are waiting for the work under the NREGA scheme and the cards are not provided to them. It is also alleged that so many persons have lost their ration cards and they required fresh ration cards to get the articles under the public supply system. The petitioners have given some details i.e. name, village and other details regarding the individuals. Leaned counsel appearing for the State of Orissa seeks time to inquire into the details of these facts given by the petitioners and the learned counsel seeks time to furnish the details regarding the steps already taken by it. It is stated that a committee has also been constituted to give relief to the affected persons. The correctness of these details would be enquired into by the State and a detailed report be furnished to this Court within a period of four weeks. It is also submitted that the State is taking steps to see that all the persons who are in the relief camps exercise their franchise in the ensuing general election and steps are being taken to take them to the polling booths on the date of polling under the protection of the police. Learned Addl. Solicitor General of India submits that a sum of Rs.3 lacs each is proposed to be given to the dependents of the persons who have died and as soon as the details are available from the State the amount would be made available to the State. In the meanwhile, the relief works, which are already in progress, may be continued......" F. 11.05.2009 "Heard learned senior counsel for the petitioner and also learned counsel for the State. It is pointed out by learned counsel for the petitioners that in some of the cases where the houses have been destroyed and damaged, full compensation has not been paid. It is also submitted that all the dependents of the deceased persons have not received compensation. On the other hand, learned senior counsel appearing for the State of Orissa submitted that it has been assessed that about 4,588 houses spread over in 8 blocks suffered damage and steps are being taken to pay compensation. It is pointed out that in these 8 blocks one I.A.S. Officer each has been deputed to look after the rehabilitation measures and it is also stated that in some of the cases first installment has been paid and in some cases second installment has been paid and in some other cases third installment has also been paid. It is pointed out by learned counsel for the petitioners that in the case of 917 families, first installment has not been paid but it is disputed by learned counsel for the State. The State may pursue the disbursement of compensation to these families. It is submitted by counsel for the State that in the case of 42 deaths which have taken place, dependents/legal heirs of the deceased have been paid compensation by the State of upto Rs.2 lacs and Rs.3 lacs has to be paid by the Union of India and the list has already been sent by the State but learned Additional Solicitor General submits that only 33 cases have been recommended by the State and out of them 30 have been paid compensation and the rest of the three have been rejected. As regards the rest, the State may send its recommendations to the Central Government and as soon as the same are received by the Central Government, it may take appropriate action and the compensation shall be disbursed at the earliest..........." The monitoring by this Court through interim orders passed from time to time and the efforts on part of the State Government to control and remedy the situation and provide relief to the victims having yielded results, according to the petitioner in the lead matter, most of the issues and grievances highlighted in the petition, now stand addressed. According to the petitioner what remains to be considered are prayers D, G and H in Writ Petition No.404 of 2008 which are set out hereunder: - "D. Issue a writ of mandamus or any other appropriate writ order or direction, directing the State of Orissa to forthwith pay compensation to all those families whose houses have been fully damaged @ of Rs.4 lakhs per family and Rs.2 Lakhs per family for partial damage and Rs.5 Lakhs for every family where death has taken place and Rs.1 Lakh for every family where injuries have taken place. G. Issue a writ of mandamus or any other appropriate writ order or direction, directing the Respondents to constitute and appoint an Independent Commission for the framing of the rehabilitation and compensation scheme and to assess the quantum of damage, extent of damage, methodology of assessment and for proportionate allocation of funds in the affected areas. H. Issue a writ of mandamus or any other appropriate writ order or direction, directing the Respondent State to pay all the victims of communal violence full compensation for all the loss incurred at actual market value proportionate to their loss". ;