Gujarat High Court
Dipesh Thakorebhai vs Dy. General Manager & on 30 November, 2013
Author: Chief Justice
Bench: Chief Justice
DIPESH THAKOREBHAI CHAUDHARYV/SDY. GENERAL MANAGER C/WPPIL/239/2013 CAV ORDER WPPIL2392013Co1.doc IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 239 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA Sd/- HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/- =========================================================1
Whether Reporters of Local Papers may be allowed to see the judgment ?
No 2 To be referred to the Reporter or not ?` No 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
No 5 Whether it is to be circulated to the civil judge ?
No ================================================================ DIPESH THAKOREBHAI CHAUDHARY & ANR.
Versus DY. GENERAL MANAGER & ORS.
================================================================ Appearance:
MR VIJAY H NANGESH, ADVOCATE for the Petitioners MR PARTH BHATT, ASST.GOVT. PLEADER for the Respondent No. 3 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 30/11/2013 CAV ORDER (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. By this public interest litigation, the writ-petitioners have prayed for the following reliefs:-
[A] Your Lordship may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent authorities more particularly to respondent No.2 herein to provide employment to the project affected land losers who have lost their land in establishment of [Atomic Power Station] known as Nuclear Power Corporation of India Limited Kankrapar Gujarat Site.
[B] Pending hearing and final disposal of this petition, this Hon ble Court may be pleased to direct the respondents herein more particularly respondent No. 1 & 2 to place on record the data of employment provided to the project affected persons/land losers who have lost their land in establishment of [Atomic Power Station] known as Nuclear Power Corporation of India Limited Kankrapar Gujarat Site till date as well as data of appointment made in compliance of the circular dated 9th February,1989 issued by the NPCIL and circular dated 7th August, 2013 issued by the State Government.
[C] Your Lordship may be pleased to direct the respondents herein to follow the guidelines issued vide circular dated 9th February, 1989 by the NPCIL and circular dated 7th August, 2013 issued by the State Government for any future appointments and recruitments thereof at the [Atomic Power Station] known as Nuclear Power Corporation of India Limited Kankrapar Gujarat Site.
[D] That this Hon ble Court may be pleased to pass such other and further relief as may be deem fit by your lordships in the facts and circumstances of the case and in the interest of justice.
2. The case made out by the petitioners may be summed up thus:
2.1 The petitioners are the local residents of villages Moticher and Unchamata and their predecessors had lost their valuable agricultural lands for the purpose of establishment of Township and Plant site which is now known as Nuclear Power Corporation of India Limited Kankarapar, Gujarat [ Corporation for short]. The petitioners and other similarly situated persons are the land losers and most of them belong to the backward class [adivasis] who have lost their 85% to 100% lands acquired for the purpose of establishment of the above project. At the time of acquisition of the lands in question, it was assured by the authorities that they would provide proper compensation for the lands acquired, employment to the family members and the facilities such as road, transport, dispensaries, schools, and basic amenities etc., however, the same have not been provided and even, it was decided by the Land Acquisition Officer, Surat, to award the compensation @ Rs.11,000/-
per Acre to the affected persons. Therefore, the agriculturists/land losers were forced to approach the High Court in that regard and later on, the compensation was awarded @ Rs.40,000/- per Acre by the intervention of the High Court.
2.2 The local land losers approached the respondent No.2 with regard to the assurance given for providing the above facilities including the main requirement of employment to one member of each family in the Power Station Site 1 to 4. However, out of approximately 1200 employees, only 100 local residents have been given employment at Kakrapar Site since the acquisition of the land.
2.3 The above inaction on the part of the respondents is illegal, arbitrary and violative of Articles 19 and 21 of the Constitution of India and also against the settled policy of the State Government as well as the respondent No.1.
2.4 According to the Circular dated 9th February, 1989, issued by the Nuclear Power Corporation of India Ltd., it has been decided that in future, all the recruitments of the personnel in non-gazetted categories, such as, technical, administrative and auxiliary shall be made only through the local employment exchange; it is only when the employment exchanges give the requisite No Objection Certificate, the recruitment can be resorted to through the local educational institutes like ITIs, polytechnics etc. and only when this mode of recruitment fails, advertisement in local newspapers may be issued after getting clearance from the office of the Nuclear Power Corporation of India Ltd.
2.5 In contravention of its own settled policy, the respondent No.2 has issued an advertisement in the local newspaper for the posts of Sub-Officer [B1], Driver-cum-operator/A and Firemen/A, in total, 15 vacancies of different posts, wherein, no post is kept vacant/reserved for either the Scheduled Tribe candidates or for the local residents. The respondent No.2 has not proceeded according to the circular issued by the Corporation dated 9th February, 1989 and has followed the procedure as mentioned hereinabove.
2.6 The above-referred advertisement is also against the policy and the Resolution of the State Government dated 31st March, 1995 to recruit/appoint minimum 85% labourers, workers from among the local residents to the Government Institutes/Public Sectors which are obtaining the government appreciation funds. Thus, a duty is also cast upon the State Government to see that the local residents get employment.
3. After hearing Mr. Vijay H. Nangesh, the learned advocate, appearing on behalf of the petitioners and Mr. Parth Bhatt, the learned AGP, appearing on behalf of the State-respondent, we are of the view that in this application, the petitioners are not entitled to get any relief for the reasons stated hereunder.
4. In order to succeed in an application under Article 226 of the Constitution of India, the petitioner must prove that by the illegal action or inaction on the part of a State within the meaning of Article 12 of the Constitution of India, any of his legal or fundamental rights has been infringed.
5. So far the Nuclear Power Corporation of India is concerned, the same may be a State for the purpose of statutory duty cast upon it by virtue of the law which created the Corporation, but for the purpose of appointment of staff of such statutory Corporation, it cannot be said to be a State within the meaning of Article 12 of the Constitution. In this petition, the petitioners have no legal or fundamental right to get employment in accordance with the alleged policy decision adopted by such Corporation, inasmuch as, such policy decision does not create any legal right in favour of a citizen. The policy decision can be changed by the Corporation at any time. In the case before us, the lands were acquired in the year 1976 and it is an admitted position that for acquisition of the lands, the original owners of the lands have received compensation in accordance with the law of the land which was Rs. 40,000/- per Acre in those days. Therefore, merely because the lands were acquired, such fact cannot give any right to the successors of the original owners in this petition to get employment for all time to come. We, thus, find that so far the Nuclear Power Corporation of India is concerned, no writ-application is maintainable against the Corporation for the purpose of getting employment simply because the petitioners are the local residents or the lands were acquired from their predecessors some 40 years ago for which the predecessors-in-interest have already got the adequate compensation in accordance with the law.
6. Similarly, so far the State of Gujarat is concerned, no writ can also be issued against the State of Gujarat for the simple reason that the Nuclear Power Corporation of India is not run from the funds of the State Government and thus, the resolution of the State Government dated 31st March, 1995 has no application to the facts of the present case.
7. Apart from the above reason, in our view, delay in moving this application is also a vital factor to be taken into consideration in entertaining this application where the petitioners want to invoke the writ-jurisdiction for enforcement of a policy decision of the year 1989, long after 24 years based on the acquisition of the land belonging to the predecessors of the persons concerned about 40 years ago for which due compensation under the Land Acquisition Act has already been paid. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of Eastern Coalfield Ltd. vs. Dugal Kumar reported in AIR 2008 SC 3000 regarding the factor of delay in entertaining a writ-application:
15.
As to delay and laches on the part of the writ petitioner, there is substance in the argument of learned counsel for the appellant-Company. It is well-settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ Court is that the petitioner is guilty of delay and laches. It is imperative, where the petitioner invokes extra-ordinary remedy under Article 226 of the Constitution, that he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the applicant.
16. Under the English law, an application for leave for judicial review should be made "promptly". If it is made tardily, it may be rejected. The fact that there is breach of public law duty does not necessarily make it irrelevant to consider delay or laches on the part of the applicant. Even if leave is granted, the question can be considered at the time of final hearing whether relief should be granted in favour of such applicant or not. (Vide R. v. Essex Country Council, 1993 COD 344).
17. In R. v. Dairy Produce Quota Tribunal, (1990) 2 AC 738, 749 : (1990) 2 All ER 434 : (1990) 2 WLR 1302, the House of Lords stated;
"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision making powers for any longer period than is absolutely necessary in fairness to the persons affected by the decision".
18. The underlying object of refusing to issue a writ has been succinctly explained by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong, (1874) 5 PC 221 : 22 WR 492 thus;
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy."
8. For the above reasons also, we find that this Public Interest Litigation should not be entertained against either the State of Gujarat or the Nuclear Power Corporation of India Limited.
9. We, accordingly, dismiss this application summarily.
sd/-
(BHASKAR BHATTACHARYA, CJ.) sd/-
(J.B.PARDIWALA, J.) pirzada/mathew Page 10 of 10