Uttarakhand High Court
Mahipal Singh Negi & Others ... vs State Of Uttarakhand & Others on 2 September, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
Reserved on 17.05.2022
Delivered on 02.09.2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 2083 of 2020
Mahipal Singh Negi & others .......Petitioners
Vs.
State of Uttarakhand & others
.....Respondents
With
Writ Petition (M/S) No. 2077 of 2020
Darmiyan Singh Negi (Deceased) .......Petitioners
Vs.
State of Uttarakhand & others
.....Respondents
Mr. Tapan Singh, Advocate for the petitioners.
Mr. Devesh Ghildiya, Brief Holder, for the State of Uttarakhand.
Mr. Shobhit Saharia, Advocate, for the THDC.
Hon'ble Sharad Kumar Sharma, J (Oral)
These are the two connected writ petitions, which engages consideration almost a common question of fact and law, rather if the relief clause is comparatively scrutinized, in both the writ petitions, they happens to be akin to one another. Hence, for the purposes of brevity, they are being decided together.
2. The petitioners in both the writ petitions, have prayed for the following relief:-
"It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to:2
i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 21-07-2012 passed by the respondent no.5
ii) Issue a writ, order or direction in the nature of mandamus commanding / directing the respondent nos.1 & 5 to gave the compunsession of the land of the petitioner as per right Fair Compunsession and Transparency in Land Acquisition, Rehabilitation and Resettlement Act. 2013.
iii) Issue a writ, order or direction to conduct an inquiry in the matter through independent agency, regarding order dated 21-07-2012 passed by the respondent no.5
iv) Issue any other relief, which this Hon'ble Court may deem. fit and proper in the circumstances of the case be passed in favour of the petitioner.
v) Cost of the petition be awarded in favour of the petitioner."
3. Principally relief no.1, which has been modulated to be sought, is the impugned order, by virtue of which, the respondent No.5, while passing the impugned order had denied to the petitioners, the right of their rehabilitation benefit which was allegedly claimed by them, on the ground that their land stood acquired by the Irrigation Department, and hence, they would be entitled for the grant of the benefit of the rehabilitation, as they satisfied the parameters for the grant of rehabilitation benefits.
4. Secondly, the petitioners had modulated their relief, praying for a writ of mandamus commanding the respondent no.1 to 5, to pay the compensation of the land, allegedly acquired, in 3 accordance with the provisions of the Right to Fair Compensation and Transparency and Land Acquisition, Rehabilitation and Resettlement Act of 2013.
5. To be precise, the petitioners' case in their respective writ petitions had been, that they had contended that their predecessor from whom they claimed, that they have succeeded their rights over the land, which was described in paragraph no.3, of the writ petitions, totaling to 38 Nali 4 Mutthi of land lying in Khata No.26, of the land situated in Village Talli Bag, Patti Sarjula, District Tehri Garhwal, which they claimed that they have inherited their rights from their grandfather Late Mr. Sardar Singh and later on, on the basis of devolvement of their right on the sad demise of Mr. Sardar Singh, it stood vested to their father i.e. Mr. Bhagwan Singh and Mr. Jeet Singh. They have contended that they would be entitled for the grant of rehabilitation benefits, because as a consequence of the acquisition of the property, which was alleged by them, to have been taken over by the irrigation department; for their project notified in the acquisition proceedings.
6. The petitioners case in both the writ petitions are that in respect to their respective piece of land which they claimed that they have 4 the "Bhumidhari" rights, was made as a subject matter of the acquisition in the notification, which was issued under Section 4 of the Land Acquisition Act of 1885 as back as on 2nd February 1979.
7. The petitioners contended, that in view of the aforesaid notification which had been issued under Section 4 of the Act, since their predecessors stood recorded in the "Khatauni" pertaining to the 1387 to 1397 fasli, as against the land lying in khata no.26, they would be falling well within the zone of consideration for the purposes of extension of the rehabilitation benefits, under the policy of rehabilitation, which was framed by the State.
8. The petitioners have contended, that as a consequence of the acquisition of the property, and under the alleged enforcement of the rehabilitation benefits, they have claimed to have contend that petitioners were allotted Plot No.116 and 69/113 in Village Pathri District Haridwar, vide allotment order 20.06.1989 and 18.07.1989 respectively.
9. Petitioners contend that after the aforesaid allotment, though without there being any document having placed on record, as such to justify the alleged allotment of the land made in 5 favour of the petitioners or their predecessors, as a consequences of the acquisition of that, as back of 1979, the petitioners have derived their so- called right of being granted with the rehabilitated on the ground that the Assistant Engineer, Tehri Dam Division, by virtue of his communication dated 19th August 1985, since had permitted the petitioners of Writ Petition No. 2083 of 2020, Mahipal Singh Negi and Others, for leveling of the land, they contended that it would be deemed that their ancestral land has been taken over, as a consequences of the acquisition by virtue of the notification dated 2nd February 1979.
10. The petitioners had come with the case that their father, had met with the sad demise and consequently the property, which was alleged to be falling under the notification of 2nd February 1979, would devolve upon the petitioners in their equal shares, as per their rights of succession based upon the Succession Law applicable, and owing to the aforesaid right of succession, over the land of their predecessors which was said to have been taken over by the respondents, they contended, that the aforesaid two plots of Village Pathri District Haridwar, was allotted in favour of the petitioners.
11. What is important, herein to be considered, is that it is an admitted case of the petitioners that so-called alleged theory of 6 acquisition! So called theory of taking over of their "Bhumidhari" land! So called theory of allotment of the land under the rehabilitation policy! that too in relation to the land which was said to have been taken in an acquisition proceedings of the year 1979, they are solely foundationed on the basis of the pleadings only, without there being any such credible material or document on record to show, that at any point of time, the property which has been described in the two writ petitions, was in fact actually taken over by the respondents, and the actual possession was ever handed by the petitioners over to the acquiring body i.e. the irrigation department.
12. It is an admitted case of the petitioners, in their writ petitions, that so-called allotment of their respective plots detailed above, alleged to be given under the rehabilitation policy, the respondents have ultimately are admittedly said to have cancelled their allotment in the year 1987. At this stage itself, this Court feels it necessary to observe that if at all there was any allotment, as claimed by the petitioners of the land lying in Village Pathri District Haridwar, as a consequence of the alleged acquisition of their holding, described in the writ petitions, and if it was later on cancelled for whatsoever valid reasons in the year 1987, it was rather at that stage itself, when the allotment was cancelled, the petitioners had a right, against which they ought to have agitated 7 their cause against cancellation of their allotment, as a consequences of their alleged deprivation of their "Bhumidhari" land right, which was alleged by the petitioners to have been taken over by the respondents due to the notification issued under Section 4 of the Act, dated 2nd February 1979. But in fact there is nothing on record which has been placed by the petitioners to prove taking over of the possession, and to prove their allotment, and also to prove the cancellation of the alleged allotment, because even otherwise also if the petitioners theory of cancellation is taken into consideration, they ought to have protected their rights by filing an appropriate proceedings; at an appropriate stage, against the so-called act of the cancellation of 1987, having not done so, the writ petitions will be barred by laches.
13. However, in order to built up their case for the purposes of bringing the controversy within ambit of Article 226 of the Constitution of India, the petitioners have themselves contended, that after the death of their father, they had applied for the issuance of the death certificate only on 21st October 1989, and then they claimed, that they had acquired the succession certificate, whereby it only fortify the fact, that the petitioners have succeeded their rights of the "Bhumidhari" land of their father, but under any of the circumstances the death certificate or the succession certificate itself, can never be a 8 document, which can be read to establish or to derive a positive conclusion, that the land was actually acquired and the possession of the same was ever taken from the petitioners.
14. The petitioners in order to carve out a case of having deprived of their holding, had once again relied upon a stray communication which was made by the Director Construction Division, Tehri Hydro Development Project dated 20th June 1989, which was yet again only an inter departmental communication, where a general directive were issued, and that to for acquiring a land for the project, all efforts are to be made to ensure that the minimum piece of land of the "Bhumidhari" is taken. This communication of 20th June 1989, which has been heavily relied by the petitioners during the course of arguments, alleging that two acres of land was taken over. Yet again as per the opinion of this Court, since the communication of 20th June 1989, being only an administrative executive direction, would be a privileged communication, it cannot be permitted to be construed, to be read to be a document of proof by virtue of which the so-called minimum land which was intended to be acquired was ever handed over to the Acquiring Body, and the petitioners were actually divested of their possession from the respective "Bhumidhari" land, which has been described in the writ petitions.
915. Rather if the communication of 20th June, 1989, is compositely considered, in fact, apart from that it was laying down the wider administrative principles of making efforts to acquire minimum piece of land for the purposes of the project, but simultaneously it had also made an observation that the so-called acquisition, which commenced as a consequences of the issuance of the notification dated 2nd February 1979, was directed to be stopped, hence the documents cannot be read to be interpreted, in part, its intention has to be culled out only after deriving the basic intention, in its entirety.
16. In that eventuality, if the logical interpretation is given to the letter dated 20th June 1989, in fact the contention of the petitioners, that the land still continues to be acquired, is not sustainable, since being not borne out from any document on record. Even their contention of the deprivation of the land, is a fact which is also not established, in the absence of any document being placed on record to show the process of actual taking over of the possession over the land, and further, since there is no document of allotment of land on record, it cannot be said that the petitioners, would at all fall to be a person, who have been deprived of their holding, who would be at all falling within the zone of the consideration under the rehabilitation 10 policy, as enforced by the respondent no.6, to the writ petitions.
17. The petitioners yet again based on a later official communication dated 17th January 1990, as issued by the Director, taking a decision for allotment of half acres of the agricultural plot and the residential plot, would only be construed for the purposes as to be a document, which was securing a right of the land loosers, whose land was actually taken over and it cannot be read in relation to those "Bhumidhars" whose land was never taken, as would be apparent from a communication of the Director dated 20th June 1989, that so far as the land of the petitioners are concerned, the acquisition proceedings were stopped. In fact, the letter of 7th January 1990, were only laying down the guiding principles to the extent of land, which is to be allotted only as a consequence of the actual acquisition, where there is a established deprivation of the holding, as a consequence of acquisition.
18. The petitioners have contended, that so far as Khata No.26, is concerned, they are neither in possession of their land, nor they have been paid with any compensation, and hence, they will be falling to be as a displaced person, so as to bring them within the terms of the rehabilitation policy, for extension of the rehabilitation benefits, 11 and consequently the petitioners contend that they have applied before Tehri Hydro Development Corporation, on 14th January 1994, for the extension of the benefit of the rehabilitation policy despite of the admitted case; that the land was actually never shown to have been taken over nor any award was ever rendered in relation to the land which was alleged to belong to the petitioners. As per the case of the petitioners themselves, in one of the communication which was made by one Mr.Veer Singh Negi, the resident of the same village, who in his communication dated 10th March 1998, have admitted the fact that the land was never acquired, and no award was rendered in relation to the land lying in Village Baghi. Thus on these facts the dispute involves an appreciation of factual issues, which could be possible by Courts on appreciation of evidence, which is not the ambit of exercise powers by writ courts under Article 226 of Constitution of India.
19. The petitioners have contended that owing to the arbitrary act of the respondents and for vengeance of their grievances, the villagers on 6th July 1998, had taken a decision to stop the natural water supply, which was being provided from various "gools", and also for the blockage of the roads, so that the so-called land of the petitioners, which was taken over may not be utilized by the respondents for their proposed 12 project, which again requires appreciation of evidence.
20. The petitioners had filed a Writ Petition being; Writ Petition no.32388 of 1988, before the High Court of Judicature at Allahabad, praying for a writ of mandamus for a direction to the respondents to pay an adequate compensation of the agricultural land, on the basis of the prevalent market rate, plus interest and solatium, but the said writ petition was not adjudicated on merits, rather the judgment of the Division Bench of the Allahabad High Court, as rendered on 8th October 1998, only a direction was issued to decide the representation of the petitioners.
21. This Court is of the view, that there would be some practical impediments before the petitioners, in order to sustain the present writ petition. Firstly admittedly they have not put a challenge to the alleged order of the cancellation of the allotment, as it was passed in the year 1987, even at the stage when they have earlier approached, Allahabad High Court by filing a Writ Petition No.32388 of 1988. In that eventuality, it would be deemed that they have waived off their right to put a challenge to the alleged action of the cancellation of their allotment made by the respondents in the year 1987, in view of the 13 principle and implication of Order 2 Rule 2 of CPC.
22. Hence, there any consequential relief, which has been modulated in the present writ petitions, under the theory of the alleged acquisition, would be barred by principles of Order 2 Rule 2 of the CPC.
23. Secondly, when the petitioners have portrayed before the Allahabad High Court, that they have been deprived of their land, without they being paid with the compensation, and the act of the respondents, would be violative of Article 14 and 300A of the Constitution of India. They ought to have pressed their writ petition on its own merits, rather then acceding to the judgment of 08.10.1998, rendered by the Division Bench, for issuing a direction of deciding the representation of the petitioners, which is not otherwise statutorily contemplated under law of acquisition of land.
24. Thirdly, the direction of deciding the representation dated 8th October 1998, as per the opinion of this Court, when an exception was carved out by the petitioners themselves, in accepting the judgment of 8th October 1998, in fact the petitioners have voluntarily not pressed 14 their principal relief of mandamus for paying of the compensation for the alleged land acquired on its own merit. Nor they had sought any reference of dispute to be adjudicated under Section 18 of the Land Acquisition of the Act.
25. In that eventuality, this Court is of the view that relief claimed in the writ petition since not being awarded to the petitioners, would be deemed to have been denied, which would amount to be a waiver, to be pressed in the subsequent writ petition, and that too factually for the same cause of action.
26. The petitioners have contended that as a consequence of the judgment dated 8th October 1998, they have served the copy of the order to the Additional District Magistrate on 27th October 1998, on which the petitioners have contended, that ADM, had issued the notices to the petitioners on 26th October 1999, asking them to appear before him on 1st November 1999.
27. The writ petitions, are silent as to what action was taken by the petitioners thereafter, when the notices were issued by the Additional District Magistrate on 9th October 1998, calling upon them to appear on 27th October 1998, and thus at least up to that stage it could be conclusively inferred, that ever since the alleged 15 acquisition of 2nd February 1979, till the notices were issued by the Additional District Magistrate on 8th October 1998, the petitioners have not agitated their grievances by pressing the same; before the courts for the grant of the compensation or for the grant of rehabilitation benefits.
28. Rather the writ pleadings shows that despite of the aforesaid communication, the lull, which prevailed at the behest of the petitioners, since 1st November 1999 till 20th September 2002, when the petitioners contended that they have applied before the Superintending Engineer on 20th September 2002, there is nothing on record to show, as to what action the petitioners have taken at the first available instance in the year 1987, when the so called allotment was cancelled. (2) On the second occasion, when they were called upon by the ADM to appear on 1st November 1999. (3) Even when the petitioners have applied before the Superintending Engineer on 20th September, 2002, as against the alleged action of the cancellation of the allotment, it would relate back to an action of the year 1987 which has attained finality, when the allotment was cancelled. (4) Because according to the respondents, since as a consequences of the alleged acquisition no possession was ever taken over and (5) Admittedly the acquisition proceedings were dropped, the land was since was 16 never taken over. Hence there was no occasion for the petitioners to be paid with the compensation or with the rehabilitation benefits to be extended to them by the Rehabilitation Directorate.
29. On the communication, which had been made by the petitioners on 20th September 2002, the respondents have already taken a decision on 30th September 2002, wherein, it was observed, that in view of the earlier averments already made in the writ petitions, since respondents have taken a decision, that no acquisition of the land is required to be made for the project, then there was no occasion for the respondents for extension of any rehabilitation benefits, particularly when, the land itself was never taken over. Hence, non rendering of any award even despite of the judgment of 8th October 1998, as rendered by the Division Bench of the Allahabad High Court, the decision taken on 30th September 2002, for non remittance of the award amount because the land has been reverted back to the State Government, cannot be faulted out, because it is always a prerogative of the Acquiring Body to return the land to the State/ the Acquiring Agencies, if it is not needed by it for the so-called project, for which the land alleged and proposed to have been taken.
30. As per the case of the petitioners itself on record, the acquisition had taken place as 17 back as on 2nd February 1979, and the last objectiontable communication, which was made by the Superintendent Engineer, assigning reasons for non issuance of the award was that of 30th September 2002, and the reason assigned was due to the dropping of the acquisition proceedings, and that since the land was never taken over, the petitioners contention to bring their claim for extension of the rehabilitation benefit, which was enforced for the first time; as a consequence of the judgment rendered by the Hon'ble Apex Court in SLP No.22894 of 2005, laying down the parameters for extension of the rehabilitation benefits by constituting a Rehabilitation Directorate, in fact as per opinion of this Court the policy decision of the formulation of the rehabilitation policy, cannot be read for the purposes of extension of the benefits of the rehabilitation. To the petitioners under the garb of the policy, which was later framed under the judgment of the Hon'ble Apex Court.
31. Its not only that once again a lull prevailed at the hands of the petitioners since the last communication dated 20th September 2002, when they didn't successfully proceeded to press their relief, and all of a sudden once again they have written to the respondent no.2, reagitating the same issue and claim, after the lapse of about more than 6 years on 17th December 2002, by writing a communication to the office of 18 respondent No 2, praying for enforcement of the rehabilitation benefits which was subsequently imposed, due to the decision of the Hon'ble Apex Court in SLP No.22894 of 2005, which obviously will not governed the petitioners claim, even if their theory of acquisition and taking over of the possession is accepted even though without admission to it, which happens to be much prior in time due to the acquisition being that of 2nd February 1979.
32. The petitioners have contended, that firstly when despite of their earlier communication dated 20th September 2002, when they raised their claim before the Superintending Engineer. Secondly when they have filed a claim on 17th November 2008, though at a belated stage, when no action was taken the petitioner had applied for procuring information under the Right to Information Act, retrieving the details, as to what was the reason for non rendering of the award or the reasons for the non extension of their benefit, under the theory of their claim of rehabilitation policy, enforced as a consequence of the judgment of the Hon'ble Apex Court in the SLP of 2005.
33. In response thereto the "Naib Tehsildar"
on the direction of the Rehabilitation Directorate, sought to be pressed by the petitioners on the basis of the information supplied to them under 19 the Right to Information Act on 9th February 2011. A report was called from the Naib Tehsildar who submitted his report on 21st March 2011, contending thereof that the petitioners, would not be entitled for the grant of the compensation by way of an award or a rehabilitation benefits, even under the judgment of the Hon'ble Apex Court, because the land of the petitioners were never taken, because the acquisition proceedings itself was stopped by the respondents as back as in the year 1989, and it was never revived later at any stage.
34. In order to build up their case, the petitioners have contended, that as a consequence of the judgment of the Hon'ble Apex Court, where the Rehabilitation Directorate was directed to be constituted, for deciding the complaints of a person, who has been deprived of their holding, as a consequence of the acquisition for the THDC project. The petitioners have contended that a retired District Judge, was supposed to head the Rehabilitation Directorate, who was to be appointed in consultation with the Hon'ble Chief Justice of the High Court of Uttarakhand.
35. The petitioners have contended that initially the retired District Judge Shri Krishna Kumar, was appointed as the Director of the Rehabilitation Directorate, but later on retired 20 District Judge Shri Inderjeet Malhotra, was appointed as the Chairman of the Directorate, on 3rd April 2012. With the change of the office of the Director of Directorate of the Rehabilitation, it is contended by the petitioners, that the Director, Shri Ranjeet Kumar Sinha, who was also simultaneously holding the charge of the District Magistrate, vide his communication dated 9th May 2012, he has submitted that Shri Indrajeet Malhotra, the retired District Judge, has expressed his inability to consider the claim of the petitioners for various reasons assigned in the communication dated 9th May 2012.
36. The petitioners contended that a fraud has been played upon them, because at the time when the petitioners claim for the grant of compensation was being considered by the Rehabilitation Directorate, the powers of the District Magistrate, Tehri Garhwal, and that of the Director of Tehri Hydro Development Project, stood vested with one person, and hence unilateral decision couldn't have been taken, as to be the basis which could be justified, at all, for determining the claim of the petitioners for rehabilitation.
37. The learned District Magistrate, according to the petitioners, have rejected their claim on 21st July 2012, on the basis of the 21 decision, which was said to have been taken by the Government dated 15th May 1992, observing thereof, that the rehabilitation benefits could only be extended to those "Bhumidhars" or the families, whose land has been actually taken, they could only be brought within the ambit of the definition of a "displaced person", subject to the condition that their acquired holding is of more than 50% of their total holding has been acquired, in an acquisition proceedings.
38. The petitioners contend, that since the Government Order dated 5th May 1999, was later on amended by the Government Order dated 30th May 2009, the land of the tenure holder, which has been acquired for the project itself, which shall be considered in the light of the entire acquired holding of the tenure holder, for the purposes of determining the compensation under the rehabilitation policy.
39. The petitioners submit that, the impugned action of the respondents of passing of the order by the respondents on 21st July, 2012, was bad in the eyes of law for the reason being, that the petitioners were determined to be not to be a "displaced person", they were determined as to be not a person whose holding, above the cut- off percentage of holding to be acquired, as it was provided in the Government Order, was ever taken over, thus the petitioners claim would not 22 at fall to be for consideration, because the land had never been taken over, and hence, the contention of the petitioners about the order of 21st July 2012, on the ground that the fraud was played upon, as the order doesn't bear a signature of Shri Indrajeet Malhotra, who was nominated as a Judge in the Complaint Cell Redressal Forum with effect from 11th April 2012, that itself would vitiated because of the order passed by the District Magistrate dated 21st July 2012.
40. The petitioners contended, that it was rather the District Magistrate Shri Ranjeet Kumar Sinha, who had decided the matters of the petitioners on 21st July 2012, and that itself will amount to be a unilateral decision, and hence, in the absence of there being any valid signature existing on the settlement, which was made by the retired District Judge, who was appointed as a Chairman of the Rehabilitation Directorate, by the High Court i.e. Shri Inderjeet Malhotra, they contended that an exclusive signature of the District Magistrate; on the order dated 21st July 2012, would be bad in the eyes of law, because it was an allegation which had been raised by the petitioners, that the signature made in the order dated 21st July 2012, showing Shri Indrajeet Malhotra, to have been signed the document, in fact it was a forged document.
41. Shri Inderjeet Malhotra, against whom 23 there had been an allegation of not deciding, even a single case was raised, and has filed an SLP No.22894 of 2005, wherein, he has stated that he took over the charge of the Directorate on 11th April 2012, on the date when he has taken over the charge, his predecessor Shri Rameshwar Singh, has left 47 decisions, which were not signed by him nor by the District Magistrate, and all these 47 judgments, which remained unsigned, they were spilling over the period from 2010 to 2012. Hence, the petitioners contended that they have prayed for that the fresh decision may be taken.
42. It was alleged by the petitioners that the fraud was committed upon them because the new District Magistrate, who joined later on, on his Suo Moto decision has signed 47 judgments, which remained unsigned earlier by the then Director of the Rehabilitation Directorate, and in fact it was the District Magistrate, who has joined later on, after the retirement of Shri Rameshwar Singh, who has signed the 47 judgments. Hence, he submitted that since Shri Rameshwar Singh was not in office as on 21st July 2012, the alleged signature, which appears on the impugned order, would be bad in the eyes of law.
43. The petitioners submitted that the complaint which was filed by them before the Redressal Forum being complaints No.RR/1503 of 24 2007, RR No.1504 of 2007, RR No. 1505 of 2007, RR No.1506 of 2007 and RR No.1567 of 2007.
44. The petitioners contended that in fact the decision on the same has already been taken, and hence, in view of the communication of the Commission the order dated 21st July 2012, was alleged to be illegal.
45. The petitioners have contended that since in pursuance to the judgment of the Hon'ble Apex Court, as it was rendered on 24th April 2007, of constituting a Redressal Cell for redressing the grievances of the land losers, whose land, which has been acquired for the project, as such the criteria, which was fixed in the meeting for the purposes of determining of the compensation by the Office Memorandum dated 15th May 1992, cannot change the criteria, for the decision making process, and hence the decision dated 21st July 2012, was bad.
46. The petitioners submitted that in fact the fraud was played upon them by the Directorate, because the signature of the Director which appeared in the impugned order in fact is a forged signature, as the then Director Shri Indrajeet Malhotra, had not heard the complaint, nor had he signed any of the judgments, rather it was signed by an unknown person, who was not 25 nominated by the Chief Justice of the High Court, to entitle him to hold the office of the Directorate for the purposes of determination of the compensation, and thus, it was contended that since the fraud having being committed, upon them, which was brought to the knowledge of the petitioners at a belated stage, they filed the instant writ petition, for the relief which has already been extracted above.
47. The proceedings of the writ petition was contested by the respondent No.6, by filing a counter affidavit, along with the counter affidavit which was filed by respondent nos.3 and 2, also independently. In the counter affidavit, thus, filed by the respondent No.6, they have submitted that the petitioners would not at all fall within the zone of consideration for the purposes of extension of the rehabilitation benefits, for the reason being, that it is controversial factually disputed question of fact, which is being sought to be ventured into in the writ jurisdiction under Article 226 of the Constitution of India, and that too, at a highly belated stage, by filing a writ petition only on 2nd November 2020, and that too without giving a challenge to the alleged order of the cancellation of their allotment, which was admittedly rendered in the year 1987.
2648. Hence, the principal ground of attack was that the writ petitions suffer from the vices of laches, and since it entails consideration of factual aspects, it may not be amenable under Article 226 of the Constitution of India.
49. In the counter affidavit, the respondent No.6, has submitted that in fact the entire theory of the acquisition, as it has been purportedly build up by the petitioners in the writ petitions, emanating from the notification, which was issued under Section 4 of the Act, dated 2nd February 1979, apart from the fact, that it was a belated claim which was raised in the writ petitions filed in the year 2020. Rather the proposal for acquisition was extended only on 20th July 1978, for the purposes of building the colony for the Irrigation Department.
50. The notification under Section 4 of the Act was issued, but later on the acquisition proceedings was dropped, and due to the dropping of the acquisition proceedings, because there was no necessity was required to proceed with the acquisition of the property, there was no question of rendering of an award of determining the compensation. In that eventuality, the petitioners since will not fall to be a displaced person, they will not be covered by the rehabilitation policy, even though which was 27 enforced by the Hon'ble Apex Court in a subsequent decision, which was rendered in the year 2005. Apart from it, the petitioners submitted that the so-called land lying in Khata no.26 and Khata no.69/113, since was never taken over under the Notification dated 2nd February 1979, which is a fact not denied by the petitioners in paragraph 8 of the rejoinder affidavit, and the land in question, since it continued to remain in possession with the respective "Bhumidhars", there was no question of the payment of the compensation, by bringing the petitioners within the zone of the consideration for the extension of the benefits of the alleged rehabilitation policy.
51. Hence, they have submitted that the petitioners claim in the writ petitions was absolutely unsustainable. Respondent No.6, in the counter affidavit submitted that at any stage of time; the land of the petitioners was never taken over by the Tehri Hydro Development Project, nor it was ever acquired, and rather it remained unaffected, as the title continued to be vested with the respective "Bhumidhars", no claim of rehabilitation could be granted to the petitioners, because that could only be extended to those tenure holders, whose land is affected and they are determined to be "displaced person", due to the enforcement of the project, as a consequence of the acquisition of the land. Since 28 either of these basic parameters were not prevailing in the case of the petitioners, their claim was rightly rejected by the respondents by the impugned order dated 21st July 2012, which too has been belatedly challenged by filing a writ petition in the year 2020, i.e. almost after 8 years, without explaining the laches, and too in the subsequent and consecutive writ petitions, for the same relief.
52. The respondent No.6, in the counter affidavit have submitted that the benefits envisaged under the rehabilitation policy could have been only extended to the project affected families or the tenure holders, and since the petitioners were not at all affected by any of the project of the respondent and that too particularly as a consequences of the acquisition of the year 1979, they will not at all fall within the zone of consideration, for the purposes of extension of benefits under the rehabilitation policy, as no possession of their land was ever taken over the plot.
53. Respondent No.6, have submitted that in view of the averments made in paragraph no.15, since petitioners did not fall to be a displaced person, as their land was never taken over, they would not be entitled for any benefits, as they are not displaced person, and hence the Committee which was constituted, as an effect of the Hon'ble 29 Apex Court judgment dated 24.04.2007, it was only to look into the grievances of the identified affected families, since petitioners do not at all fall to be within the zone of consideration, their claim was rightly rejected.
54. The contention of the petitioners, as raised in the writ petitions about the so-called fraud by interpolating the signatures of the Director of the Rehabilitation Directorate, i.e. the retired District Judge Shri Indrajeet Malhotra. The responded No.6, submitted that in fact during his tenor, which was split over from 11th April 2012 to 6th May 2014, he has not decided even a single complaint, in fact Shri Inderjeet Malhotra, who was then appointed on 1st April 2012, was later on replaced by the retired District Judge Shri Bharoshi Lal, who was then nominated by the Hon'ble The Chief Justice. Hence, it was contended that the petitioners case that Shri Indrajeet Malhotra, continued to function, was absolutely misconceived owing to the fact that he was later on replaced by Shri Bharoshi Lal the retired District Judge, and since there was no decision which was ever rendered by Shri Inderjeet Malhotra, during his period of appointment, it cannot be said that any of the signatures which was appearing in the complaints, decided was fraudulently placed, because he has not decided even a single case.
3055. The respondents in their counter affidavit have submitted that, and particularly, in the pleadings which had been made from paragraph 26 to 30, that on 21st February 2008, later on when Shri Rajendra Singh, was appointed as a Director of the Rehabilitation Directorate, who stood nominated as per the direction of the Hon'ble The Chief Justice, it was rather he who had decided about 2427 complaint cases, during his tenure, which had ended on 30th November 2011.
56. The vitalities of the alleged theory of fraud as pleaded by the respondent No.6, in the counter affidavit from paragraph 26 to 30, of the counter affidavit, in fact there is no specific denial made by the petitioners, which was made in the rejoinder affidavit particularly that of the pleadings contained in paragraph 24, denying the fact of no case having been decided by Shri Indrajeet Malhotra. Hence, there was no question of any interpolation of his signatures on the orders passed by him.
57. He submitted, that rather the complaint of Shri Mahipal Singh Negi, of Village Baghi, which was registered by way of complaint no. 1505, 1523, 1503-1506, 1567 of 2007, and 616 of 2007, in fact it was never signed by Shri Indrajeet 31 Malhotra, rather it were signed by the subsequent officer in office of the Director, Directorate Rehabilitation, who had signed the judgments. Hence, in fact no fraud was played upon, as it has been attempted to be argued by the counsel for the petitioners.
58. The responded No.6, in the counter affidavit have specifically submitted in paragraph 30, while responding to the pleadings, which had been raised in the writ petitions, that the total cases, which was decided by the Director, Shri Rameshwar Singh, all the complaints, which were already heard by him, the District Magistrate in its order dated 27th June 2012, had observed that all the complaints since stood decided, in which a conclusive finding has been recorded by the District Magistrate, which has been signed by the District Judge himself. In that eventuality, it cannot be said that at any stage of time, there was any fraud or interpolation, which was made in the process of the decision making by the then Director of Rehabilitation Directorate Shri Rameshwar Singh, who had signed all the judgments decided by him.
59. However, the District Magistrate precautionarily on the grievances being agitated by the petitioners, in fact have issued notices to all the affected persons, who were agitating their 32 cause for the grant of compensation or an alternative rehabilitation benefits. The notices were sent intimating, thereof to these persons, that their matter would be taken up on 6th July 2012, the petitioners are said to have appeared before the District Magistrate, but on the date of the appearance i.e, 6th July, 2012, in fact no protest of any nature was ever raised by the petitioners against the decision, which was signed on 21st July 2012, as it has been complaint of by the petitioners in the writ petition, because the petitioners after the notice admittedly did appear before the respondents; but since they have not raised any protest, it would be deemed that the order of 21st July 2012, was aptly decided by the then Directorate of the Rehabilitation i.e. Shri Rameshwar Singh, who signed the judgments, and the respondent no.6, have contended that the pleadings which has been raised by the petitioners particularly in paragraph 33, of the writ petitions by alleging the theory of fraud in order to override the impediment being created on account of delay, was rather by the suppression of facts, because all the judgments which were decided by Shri Rameshwar Singh, and District Magistrate was duly signed by them, and so called alleged signatures of Shri Indrajeet Malhotra, cannot be said to be a fraudulent document because he had never decided the matter. Hence, there was no occasion for him to put the 33 signatures in any of the judgments rendered by the Directorate of Rehabilitation.
60. In order to sum up, the controversy irrespective of the so called philosophy of fraud, the petitioners in response to the stand taken by the respondents in the counter affidavit, that the petitioners land was never acquired, and that no possession was ever taken, rather the acquisition proceedings, which stood initiated earlier was dropped, there was no occasion to bring the petitioners within the ambit for the extension of the benefits under the scheme of the Rehabilitation Directorate, as they will not be treated as to be a displaced person, which is a fact not denied by the petitioners in their rejoinder.
61. Hence, the writ petitions lacks merit, and the same are accordingly dismissed.
(Sharad Kumar Sharma, J.) NR/