Himachal Pradesh High Court
National Hydro Electric Power Corp. Ltd vs Karam Chand & Ors on 12 July, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 4971 of 2012
Reserved on : 05.7.2016
.
Date of Decision: 12.7. 2016.
______________________________ _____________________________
[
National Hydro Electric Power Corp. Ltd. .........Petitioner.
Versus
Karam Chand & Ors. ............Respondents
of
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
For the petitioner:
rt Mr. K.D. Shreedhar, Senior Advocate with
Ms. Shreya Chauhan, Advocate.
For the respondents: Mr. I.D. Bali, Senior Advocate, with Ms.
Prarthana Khachi, Advocate, for
respondent No.1.
Mr. Rupinder Singh Thakur, Additional
Advocate General for respondents No.2
to 4.
________________________________________________________
Sandeep Sharma, J.
By way of present writ petition filed under Section 226 of the Constitution of India, the petitioner-corporation has invoked extraordinary jurisdiction of this Court and has prayed for following reliefs:-
"i) That order of the dated 26.11.2011 (Annexure P-3) passed by the Deputy Commissioner in case titled Whether reporters of the Local papers are allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 20:47:53 :::HCHP -2-
'Karam Chand Versus State of H.P.' may be quashed and set-aside.
ii) Any other order, writ or direction may also be passed .
in view of facts and circumstances of the case.
iii) The respondents may be burdened with the costs of the case."
2. Perusal of order dated 26.11.2011, passed by the learned Deputy Commissioner suggests that while allowing the of representation/petition filed by respondent No.1 in terms of judgment dated 2.5.2011, passed by the Division Bench of this rt Court in CWP No. 2714 of 2011, present petitioner-Corporation has been directed to consider the case of respondent No.1- and provide suitable job in the project to one of the family members of the respondent No.1.
3. Briefly stated facts as emerge from the record and necessary for the adjudication of the case are that respondent No.1 filed CWP No. 2714 of 2011, titled as Karam Chand v. State of HP and Ors., before this Court averring therein that he and his wife were owners in possession of the land and a house thereupon and measuring 12 biswances along with the house constructed thereupon, was acquired for the purpose of construction of Chamera Hydro Electric Power Project Stage-II, District Chamba.
::: Downloaded on - 15/04/2017 20:47:53 :::HCHP -3-As per respondent No.1-(petitioner in CWP No. 2714 of 2011), Government of Himachal Pradesh had formulated a Resettlement .
and Rehabilitation Scheme (In short 'the Scheme') to protect the interest of the oustees affected owing to acquisition of land for construction of the aforesaid Project. As per respondent No.1, since he had become houseless after acquisition of his land and of house, the petitioner-Corporation is/was under obligation to provide employment to him or one member of his family.
Accordingly, rtRespondent No.1 filed representation to the authorities concerned for employment but despite repeated representations, no relief, whatsoever, was granted to him and, as such, he was compelled to file the aforementioned Petition (CWP No. 2714 of 2011). Perusal of judgment dated 2.5.2011 passed by the Division Bench of this Court in CWP No. 2714 of 2011 (AnnexureP2) suggests that the Deputy Commissioner, Chamba-
Respondent No.4 was directed to decide the pending representation of respondent No.1 and take decision in accordance with law within one month from the date of production of copy of the judgment. Pursuant to the aforesaid judgment passed by the Division Bench of this Court, learned ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP -4- Deputy Commissioner Chamba, vide order dated 26.11.2011, passed a detailed order recommending the name of respondent .
No.1 for employment in the present Petitioner-Corporation. Vide order dated 26.11.2011, the learned Deputy Commissioner directed the present petitioner to consider the case of respondent No.1 and to provide suitable job/employment in the project either of to respondent No.1 or to one of his family members.
4. Being aggrieved and dis-satisfied with the aforesaid rt order, the present petitioner approached this Court by way of present writ petition.
5. Documents available on record suggest that for the purposes of execution of Chamera-II Project, huge chunk of land was acquired by the present petitioner with the help and aid of the State of Himachal Pradesh by resorting to the provisions of the Land Acquisition Act, 1894. State of Himachal Pradesh with a view to mitigate the hardship caused to the affected oustees owing to acquisition of land formulated the scheme to settle the oustees affected on account of acquisition of their land for construction of the project. Clause 2 (i) of the Scheme defines the term 'oustees' or 'affected family' which is being reproduced herein below:-
::: Downloaded on - 15/04/2017 20:47:53 :::HCHP -5-"(2) In this scheme unless there is anything repugnant in the subject or context:
(i) Oustees or affected family means a land .
owner who has been deprived of his/her land, house or both on account of acquisition of his/her land for Chamera Hydro Electric Project Stage-II, Karian and is entitled to compensation in lieu thereof and includes his/her successors in of interest."
Part III of the aforesaid scheme specifically deals with issue of employment, which reads as under:-
rt "Employment:- one member of each affected family shall be eligible for employment in the Chamera HE Project Stage-II Karian, in the following manner:-
i) One member of each affected family, who is absolute owner of land or house or both, whether male or female, as per entries of Revenue record and entered as separate family in the Panchayat Parivar Register as on the date of notification of Section 4 of the Land Acquisition Act, 1894.
ii) In case of co-owners in the Revenue record one member of each affected family consisting of male owner or widow, who are entered as separate family in the Panchayat Parivar Register as on the date of notification of Section -4 of Land Acquisition Act, 1894. Un-married daughters and sons, minor daughters and sons, who are co-owners of land as per entries in Revenue record, shall be treated as ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP -6- family members of the widowed mother or any of the married elder brother as recorded in Panchayat Parivar Register.
.
iii) Only one member of such affected family consisting of widow as co-owner with her only daughter or daughters as co-owner or sons and daughters, if they all recommend, only one member against all for employment in the Project and if they are entered as of separate family in the Panchayat Parivar Register.
iv) Only one member of such affected family consisting of only one or more than one daughter or son or sons rt and daughters as co-owners, if they all recommend one member against all, for employment in the Project and if they are entered as separate family in Panchayat Parivar Register.
v) In case of such affected families who are co-owners as brothers and sisters and share of acquired land of each of such co-owners is one biswa or less and if they club their shares together with which quantum of acquired land becomes more than one biswa, only one member will be given employment against all such co-owners after their mutual consent.
vi) Provided further that No member of a family whose total land acquired is one biswa or less, married daughter or heirs of predeceased married daughter, who are recorded as co-owners in the revenue record with their brothers, sister or parents shall be eligible for employment in the Project provided they become ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP -7- landless or houseless. It is assumed that married daughter is already settled in the family of her husband and she is not to be rehabilitated by way of .
employment.
vii) No member of affected family shall be eligible for employment if quantum of his acquired land is one biswa or less.
viii) No person shall be eligible for employment in the of Project, who is not covered as member of the concerned affected family in the Panchayat Parivar Register.
ix) rt No family can give its right to employment to a member of some other family.
x) No person or his family member shall be eligible for employment if he becomes owner of land by way of sale, gift, exchange etc. of land after the date of notification of Section-4 of Land Acquisition Act, 1894."
Careful perusal of the aforesaid provision of the policy formulated by the State of HP suggests that apart from compensation as provided under Land Acquisition Act, effected persons were also entitled to certain grants as well as employment. Part-XII of the Scheme, as referred above, provides that employment to one member of the each affected family in the Chamera Hydro Electric Power Project Stage-II, Karian (H.P.), shall be subject to the certain conditions. In the part-XII of the scheme, persons have ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP -8- been defined in various categories, who are entitled for employment being member of affected family, but clause-VI of .
Part-XII provides certain exceptions i.e no member of a family whose total land acquired is one biswa or less, married daughter or heirs of pre-deceased married daughter, who are recorded as co-owners in the revenue record with their brothers, sisters or of parents shall be eligible for employment in the project provided they become landless or houseless" Clause-VIII of the scheme rt further provides that no member of affected family shall be eligible for employment if quantum of land acquired land is one biswa or less.
6. Respondent No.1 in the present case in terms of aforesaid scheme formulated by State of Himachal Pradesh filed representation claiming therein employment in the petitioner-
Corporation being an oustee owing to acquisition of land for the purpose of Construction of the Project but requests for employment being an oustee was not considered by the petitioner-department compelling him to file writ petition as referred above.
::: Downloaded on - 15/04/2017 20:47:53 :::HCHP -9-7. The learned Deputy Commissioner in terms of judgment of Division Bench of this Court, held him entitled for employment, .
as has been discussed in detail above.
8. The present petitioner being aggrieved with the order passed by the earned Deputy Commissioner filed present petition.
It has been specifically averred in the petition that impugned of order being contrary to the facts and circumstances deserves to be quashed and set-aside. The petitioner has specifically rt submitted that Deputy Commissioner while passing impugned order has not considered the material, which was available with him, especially, the decisions taken vide Annexures P5 and P6, which were taken in presence of state authorities. The petitioner further averred that the provision of the scheme as relied upon by the Deputy Commissioner while passing impugned order were suitably amended vide decision taken on 18.11.2002 for grant of financial package and employment and, as such, impugned order deserves to be quashed and set-aside being contrary to the tripartite settlement arrived at between the petitioner-corporation, State Authority and oustees' Union. Moreover, it is also stated that list of the eligible oustees entitled to financial package was ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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prepared by the State Government and correctness of the same was affirmed by the oustees' Union and petitioner-Corporation in .
terms of decision taken on 18.11.2012 deposited an amount of Rs.
3 crores with the State Government for disbursing the same to the eligible persons. The petitioner has also stated that deputy Commissioner while passing impugned order did not offer any of opportunity of being heard to the petitioner-Corporation and as such, great injustice has been caused to the petitioner-
corporation.
rt It also emerges from the record that petitioner in terms of order dated 28.6.2012 passed by this Court filed a supplementary affidavit specifically answering the query of the Court "whether any person has been given employment under the Scheme after 2003 or not?" Perusal of the supplementary affidavit suggests that in terms of agreement of Rehabilitation and Settlement Scheme, District Revenue Authority and District Commissioner recommended the names of eligible persons for employment from time to time between 2001-2004 and the petitioner-Corporation on the basis of list, gave employment to certain persons, however, averments contained in supplementary affidavit also reveals that the petitioner has been insisting upon the ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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Deputy Commissioner to send the consolidated and final list of eligible persons particularly in view of the fact that the project has .
already been commissioned in Year 2003 and the required strength of the staff has been reduced considerably. Further perusal of the supplementary affidavit available on record suggests that since none of the list approved and forwarded by of the Deputy Commissioner recommended the name of respondent No.1 or any member of his family for employment, no occasion, rt whatsoever, arose for the petitioner to consider the name of respondent No.1 or his family member for suitable requirement in the project. The petitioner by way of supplementary affidavit also brought to the notice of this Court that employment given to the land oustees has been at the level of trainee helper/ trainee beldar and, as such, claim of respondent No.1 claiming employment for his son, who is stated to be a software engineer, does not appear to be tenable and plausible. It is also stated that individuals with such qualification are eligible for employment in the supervisory/executive cadre, which is a central cadre and all posts of central cadre are filled up on the basis competitive examination. The petitioner categorically stated in the ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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supplementary affidavit that it is not possible to give employment to respondent No. 1 in the supervisory/executive cadre and that .
too at Chamera-II Project. Pursuant to the notices issued by this Court in the instant case, respondent No.1 filed detailed reply to the averments contained in the writ petition refuting therein the contents of the writ petition. Respondents in their reply while of refuting the claim of the petitioner cited examples of similarly situate persons, who have been provided employment in the rt project in terms of the Rehabilitation and Resettlement scheme on the recommendation of the ld. Deputy Commissioner Chamba.
Respondent No.1 specifically refuted the claim of the petitioner-
department that no employment, whatsoever, can be provided in the project in the wake of commissioning of the project.
Respondent No.1 by way of reply denied the factum of depositing of Rs. 3 crores with the ld. Deputy Commissioner by the petitioner-
Corporation in terms of tripartite settlement arrived on 18.11.2002, for want of knowledge. Respondents by way of reply also placed on record certain letters suggestive of the fact that similarly situated persons have been provided employment in the Project of the petitioner being oustees.
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9. Mr. K.D. Shreedhar, Senior Advocate duly assisted by Ms. Shreya Chauhan, Advocate, vehemently argued that .
impugned order is not sustainable in the eye of law as same is not based upon the correct appreciation of the documentary evidence available on record. Mr. Shreedhar vehemently argued that ld. Deputy Commissioner had no authority, whatsoever, to of pass impugned order, especially in the wake of decision arrived at meeting held on 18.11.2002 under the chairmanship of the Hon'ble rt Industry Minister of Himachal Pradesh, wherein it was decided to give alternative package in lieu of employment to the affected families @ Rs. 3 lakhs in case of Chamera-I and Rs. 2,50,000/- in case of Chamera-II. He forcefully contended that the then ld.
Deputy Commissioner was also signatory to the aforesaid decision arrived on 18.11.2002 and as such, Deputy Commissioner had no authority, whatsoever, to pass impugned order. He also submitted that in terms of decision dated 18.11.2002, the petitioner-
Corporation has already deposited an amount of Rs. 3 crores and relief, if any, in terms of aforesaid decision, can be granted to respondent No.1 by the State Government, not by the petitioner-
Corporation. It is also contended on behalf of the petitioner -
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Corporation that at present, there is no possibility at all to provide employment to any family of the affected oustees because .
Project has been already commissioned and no manpower is required at this stage for handling of power Project. As per him, petitioner-Corporation had been repeatedly writing to the respondent-State to desist from recommending the names of of family members of the oustees for employment and, as such, meeting was convened on 18.11.2002 to deliberate upon the issue rt of employment, if any, in the project. Since, there is no scope, whatsoever, for providing employment in the project, a conscious decision was taken on 18.11.2002, in the presence of Hon'ble Industry Minister, HP, the Deputy Commissioner Chamba as well as officials of the project corporation, wherein it was decided to give alternative package in lieu of the employment to the affected families, as has been discussed above. During arguments having been made by him, Mr. Shreedhar made this court to travel through Annexure P2 i.e. the proceedings at meeting held on 18.11.2002, to substantiate his aforesaid submissions and to further demonstrate that it was agreed that with the declaration of this package, no claim from any person regarding any employment in ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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Chamera-I and Chamera-II would be taken under this package, rather, it would be obligatory on the part of the beneficiary .
families of Chamera-1 and Chamera-II getting this alternative package to file an affidavit to withdraw the court cases, if any, pertaining to land compensation etc. before actual release of payment. Mr. Shreedhar, strenuously submitted that now the of petitioner-corporation cannot be compelled to give employment to the members of affected persons/oustees, especially, when rt there is no work available with the corporation. He forcefully contended that any direction to make available employment in the project at this stage will cause huge financial burden on the public exchequer.
10. On the other hand, Mr. I.D. Bali, Senior Advocate duly assisted by Ms. Prarthana Khachi, Advocate, appearing on behalf of respondent No.1 supported the order passed by learned deputy Commissioner and submitted that the petitioner-corporation is bound to provide employment to one of the family member of respondent No.1, who is an oustee, in terms of order passed by learned Deputy Commissioner, Chamba. Mr. Bali, vehemently argued that respondent has been made to run from pillar to post ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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by the petitioner-corporation for employment despite there being specific Resettlement and Rehabilitation scheme for the oustees of .
Chamera-I and Chamera-II Project owned/controlled by the Petitioner-corporation. During arguments having been made by him, he invited attention of this Court to Annexure P1 i.e. the scheme formulated by the State of Himachal Pradesh for of protecting the interest of the oustees. He made this Court to travel through Chapter-XII of the scheme which deals with the rt employment to the oustee and member of his/her family. Mr. Bali also invited attention of this Court to the various annexures annexed by respondent No.1 to demonstrate that similar situate persons have been given employment by the petitioner-
Corporation and great discrimination has been caused to respondent No.1. Mr. Bali forcefully contended that decision, if any, taken on 18.11.2002, is not binding on the respondent since same appears to be taken contrary to the provisions of the scheme formulated by State of Himachal Pradesh, which specifically provides for the employment to one of the family member of the oustees.
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11. I have heard the learned counsel for the parties and carefully gone through the record.
.
12. It is undisputed that as per scheme (Annexure P1), the persons who are oustees on account of acquisition of their land/house etc. for the construction of Project, are entitled to compensation in lieu of the acquisition of their land/house. Part -
of XII of the aforesaid scheme specifically provides for the employment to the oustees. As per this chapter, one member of rt the each affected, would be offered employment in the Chamera Project, Karian, District Chamba subject to the conditions, which have been reproduced above. Clause-VII of Chapter-XII also provides certain exceptions to the provisions. Clauses-1 to IV contained in Chapter-XII deals with the employment. Clause VII of chapter -XII provides that no member of affected family would be eligible for employment if land acquired is one biswa or less.
13. It is also not disputed that 00-00-12 bigha in total, land of the respondents was acquired by the petitioner-corporation at the time of construction of the project. Careful perusal of the Annexure P4 also suggests that one khasra No. 810/1 measuring four biswas was also acquired by the petitioner corporation.
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Perusal of Annexure P-4 also suggests that respondent namely Karam Chand received an amount of Rs. 12,71,396/- on account .
of compensation in lieu of land as well as house acquired for the purpose of construction of project. It also emerges from Annexure P4 that respondent also received amount of Rs. 1,15,000/- (Rs.
80,000+35,000/-) under the scheme under the head of additional of grants. Facts and details narrated hereinabove, clearly establish that land/house of the respondent was acquired by the petitioner-
rt corporation for construction of project and due and admissible compensation was paid to respondent No.1. Now question which remains to be decided by this Court is whether respondent was also entitled to employment in terms of the scheme or not?
14. The Govt. of Himachal Pradesh issued a scheme for resettlement and rehabilitation for the persons, who became oustees on account of acquisition of their house/land etc for construction of Chamera Project. Bare perusal of the instructions contained in the scheme suggests that only one member of such family, whose land is more than one biswa, acquired for project would be entitled for service to one member of his family. It is also provided in the scheme that in case, a person who becomes ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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houseless as per Para-VI of the scheme, would also be entitled for service of one member of his family whose land is measuring more .
than one biswa. Apart from above, persons who lost their land which was less than one biswa for construction of project has been also held entitled for employment of one of the member of the family in the project. Perusal of Annexure P4, as discussed above, of clearly suggests that 00-00-12 bigha land along with constructed house situated on Khasra No. 810/1 was acquired by the petitioner rt for construction of project but Petitioner Corporation has not placed on record any revenue record to demonstrate that respondent had not become houseless and landless after the acquisition of his aforementioned land of the respondent.
Petitioner only stated in the petition that 7 biswas of land of respondent No.1 was acquired along with his shop, house constructed thereupon and five biswas of land acquired along with the house and due and admissible compensation was granted to them under Land Acquisition Act but no documents whatsoever, have been placed on record suggestive of the fact that after acquisition of the land described hereinabove, respondent No.1 had not become houseless and landless. To the ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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contrary respondent No.1 have specifically stated in the reply that after acquisition of the land as mentioned above, he became .
houseless and landless and, as such, he became entitled to the employment in terms of the scheme. Though, no revenue record whatsoever, has been made available by the petitioner corporation to persuade this Court that after acquisition of land i.e. of less than one bigha, respondent No.1 had not become houseless and landless but it emerges from the impugned order passed by rt the ld. Deputy Commissioner Chamba that respondent No.1 had become houseless and landless after the acquisition of the aforesaid land and, as such, he was entitled to the benefit of employment in terms of the scheme referred above. In this regard, it would be apt to reproduce Para 11 and Para 12 of the order passed by the Deputy Commissioner, which reads as follows:-
"11. That the perusal of the revenue record as well as the other certificates issued by the competent authorities and the record from the relief and rehabilitation office shows that petitioner had made several representations to the concern authorities for settlement of the claim of the petitioner for providing employment to one member of his family in the project but the authorities did not consider and turned down the case of the petitioner for providing employment to ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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one member of the family under the pretext that land acquired is less than one Biswa. Hence, the case of the present petitioner was not recommended and .
considered for the employment of one member of the family of the petitioner to respondent No.3.
12. After going through the record of relief and rehabilitation office, R&R Scheme issued by the Financial Commissioner (Revenue) HP and after of hearing both parties and their counsels, I am of the considered view that when the land was acquired, that the petitioner was owner in possession of the land rt alongwith other co-sharers who constitute a separate family of land comprised in Khata No. 193 khatauni No. 206 khasra No. 13 land measuring 11-19 bighas to the extent of 16/956 measuring 12 biswansi alongwith the house constructed over the land. Therefore, he has become houseless and landless after the acquisition of the aforesaid land. Therefore, part-III of the rehabilitation scheme clause-VI specifically provides that employment to the one member of the family of the petitioner has to be provided, if he becomes houseless and landless."
It is ample clear from the paras reproduced hereinabove that Deputy Commissioner perused the revenue record and thereafter came to the conclusion that respondent No.1 after acquisition of his land has became houseless and landless. Hence, in view of the specific finding returned by the ld. Deputy Commissioner that too ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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on the basis of revenue record, contention put forth on behalf of the petitioner-corporation that respondent No.1 is not entitled to .
employment in terms of scheme, does not appear to be tenable and deserves to be rejected.
15. Apart from above, bare perusal of the supplementary affidavit filed by the petitioner-corporation in terms of order dated of 28.6.2012 passed by this Court itself suggests that petitioner corporation has been providing employment to the oustees on rt recommendations of ld. Deputy Commissioner. In this regard, it would be profitable to reproduce Paras 3 and 4 of the supplementary affidavit, which read as follows:-
"3. That according to the terms of agreement and Rehabilitation & Resettlement Scheme 1998, the District Revenue Authority/Deputy Commissioner is to recommend the name of eligible persons for employment. The notification under section 4 of the Land Acquisition Act, 189 for acquisition of and for Chamera H.E. Project Stage-II was issued on 11.7.2000 and rehabilitation & Resettlement Scheme 1998, was made applicable for the resettlement and rehabilitation to the land oustees. As per the Scheme the Deputy Commissioner has been recommending the names of eligible persons for employment between 2001-2004. In the intervening period the petitioner ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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corporation has been insisting upon the Deputy Commissioner to send a consolidated and final list of eligible persons particularly in view of the fact that the .
project had already been commissioned in November, 2003 and the required strength of staff at the project had reduced considerably. A copy of letter dated 28.10.2005 is annexed herewith as Annexure P-9. The last such list was sent by the Deputy Commissioner on of 11.8.2004, recommending 14 land oustees for employment. These land oustees were given employment in the year 2006 after necessary approval rt was conveyed by the corporate office on 5.4.2006. The details of recommendation made and employment provided to land oustees are given below:-
SL. Date Description
No.
1. 20.02.2001 The 1st list of 08 land oustees on
recommendation of D.C.
Chamba was sent to RO,
Banikhet vide letter No. NH/CH-
II/Confd./PS/2001/65 dated
20.02.2001 seeking approval for
providing employment.
2. 02.03.2001 Corporate office accorded
approval vide letter No. PSC-
III/44/177 dated 02.03.2001.
Subsequently 08 persons were
appointed after codal
formalities.
3 19.08.2002 The Dy. Commissioner, Chamba
again sent the 2nd List of 16 land
oustees vide letter No.
RRO/CBA/EMP/CHEP-
II/2002/216 dated 19.08.2002 for
providing employment. The list
was sent to C.O. for approval.
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4. 29.07.2003 The corporate office accorded
approval vide letter No. PSC-
III/44/2673 dated 29.7.2003.
Subsequently, 16 persons were
.
appointed after codal
formalities.
5. 11.02.2004 The 3rd list of 15 land oustees
duly recommended by DC,
Chamba was sent to C.O. vide
letter No. NH/CH-II/P&A/E-
28/2004/1660-61 dated
11.2.2004 seeking approval for
of
providing employment.
6. 20.08.2004 The Corporate Office accorded
approval vide letter No.
NH/P&A/PSC-III/44/128 dated
rt 20.8.2004. Subsequently 15
persons were appointed after
codal formalities.
7. 11.08.2004 The 4th List of 14 land oustees
duly recommended by DC
Chamba was sent to C.O. vide
letter No. NH/CH-II/P&A/E-
28/2004/11100-11101 dated 11-
8-2004 seeking approval for
providing employment.
8. 5.04.2006 The Corporate Office accorded
approval vide letter No.
NH/HR/PSC-III/44 dated
05.04.2006. Subsequently, 13
persons were appointed after
codal formalities.
9. 30.6.2005 The 5th list of 1 land oustee was
recommended by DC,
Chamba on 30.6.2005.
Accordingly after getting
approval from Corporate
Officer, employment was given
on 13.10.2006.
Copies of all above mentioned letters containing the detail of persons whose names have been ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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recommended by the Deputy Commissioner are annexed herewith as AnnexureP-10 to P-19.
4.That none of the list approved and forwarded by the .
Deputy Commissioner recommended the name of respondent No.1 or any member of his family for employment and as such there was no occasion for the petitioner to consider respondent No.1 or his family member for suitable employment."
of Careful perusal of the aforesaid submissions having been made on behalf of the petitioner by way of supplementary affidavit are rt clearly suggestive of the fact that till year, 2005, petitioner corporation has been accommodating family members of oustees by way of offering employment in terms of scheme. In para 4 as reproduced above, petitioner-corporation stated that since in none of the list approved by the Deputy Commissioner, name of respondent No.1 was recommended, there was no occasion for them to consider the name of respondent No.1 or his family member for suitable employment, meaning thereby, name of respondent No.1 could not be considered by the petitioner-
corporation since it was not recommended by the Deputy Commissioner. But now fact remains that Deputy commissioner vide impugned order has recommended the name of respondent ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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No.2 for employment and as such, petitioner corporation is now bound in terms of order passed by the Deputy Commissioner as .
well as provisions contained in the scheme, referred above, to provide employment to respondent No. 1 or any member of his family.
16. Besides above, respondent No.1 in his reply has of annexed documents suggestive of the fact that similarly situate persons have been offered employment by the petitioner in terms rt of the scheme and there is no rebuttal, whatsoever, to the contentions raised by the respondent in his reply as well as in the rejoinder to the supplementary affidavit filed by the corporation.
Hence, in the absence of specific rebuttal to the material contained in the reply as well as rejoinder to the supplementary affidavit, this Court is bound to accept the same to be correct,
17. Now, adverting to the another contention put forth by the petitioner-corporation that no appointment, if any, can be granted to respondent No.1 after decision taken by the authorities concerned on 18.11.2002, wherein a conscious decision has been taken to grant financial package in lieu of the employment.
Perusal of Annexure P-5, proceedings of the minutes of the ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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meeting held on 18.11.2002, suggests that some decision was taken by the authorities concerned in the presence of Hon'ble .
Industry Minister, State of Himachal Pradesh, the then Deputy Commissioner Chamba to give alternative package of Rs. 3 lacks in case of Chamera-I and Rs. 2.5 lacks in case of Chamera-II to the affected persons in lieu of the employment. It also emerge from of the perusal of the minutes of meeting that it was agreed that with the declaration of this package, no claim in Chamera-II would be rt entertained under this package. But petitioner-Corporation apart from placing the minutes of meeting held on 18.11.2002 has not made available on record any document issued by authorities pursuant to the decision taken in meeting on 18.11.2002 informing affected parties qua aforesaid decision. Admittedly, in meeting held on 18.11.2002, decision to provide alternative package in lieu of employment to the affected families was taken by the concerned authorizes but there is no document on record suggestive of the fact that aforesaid decision was made public at any point of time. Rather, documents available on record suggest that even after passing of this order, petitioner corporation pursuant to the recommendations made by the Deputy ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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Commissioner Chamba, offered employment to the various persons as emerge from the supplementary affidavit filed by the .
petitioner-corporation itself. Documents made available on record by the petitioner-corporation as well as respondents itself suggest that petitioner-corporation has been offering employment to the family members of the oustees till October, 2006, meaning of thereby, decision taken in meeting on 18.11.2002 was never given effect to by the petitioner-corporation. Perusal of proceedings of rt meeting held on 18.11.2012 (Annexure P-5) itself suggests that with declaration of the package as discussed in meeting, no claim from any person regarding employment in Chamera-I or Chamera-II would be entertained but as has been observed above, there is no document made available on record by the petitioner-corporation suggestive of the fact that any package pursuant to decision taken in the meeting held on 18.11.2002 was ever declared and as such, this Court is unable to accept the contention put forth in this regard on behalf of the petitioner.
Careful perusal of the documents available on record suggests that respondent No.1 is entitled to employment in terms of the scheme framed by the respondent-State for oustees of Chamera ::: Downloaded on - 15/04/2017 20:47:53 :::HCHP
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Project. Even the petitioner-Corporation has nowhere refuted the claim of the petitioner for employment on the basis of provisions .
contained in the scheme, rather, stand of the petitioner has been that at no point of time Deputy Commissioner recommended the name of respondent No.1 for employment and as such they had no occasion whatsoever, to consider his name for employment in of terms of the scheme. But fact remains that when Deputy Commissioner, failed to recommend the name of respondent No.1 rt for employment, respondent No. 1 approached this Court and Division Bench of this court directed the Deputy Commissioner to consider the representation of respondent No.1 and decide the case accordingly. Now once, Deputy Commissioner on the basis of revenue record has concluded that respondent No.1 after acquisition of land has become houseless/landless, petitioner cannot be allowed to defeat the claim of respondent No.1 in the garb of decision taken by authorities in the meeting held on 18.11.2002, which admittedly was never made public and petitioner-corporation had been offering appointments in terms of scheme till year, 2006.
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18. As far as another contention put forth by the petitioner-
corporation that no opportunity was granted to them by the .
learned Deputy Commissioner while passing impugned order also deserves to be rejected outrightly because careful perusal of the impugned order clearly suggests that at the time of passing order dated 26.11.2011 by Deputy Commissioner, counsel on behalf of of NHPC was present who invited the attention of the Deputy Commissioner to clause 7 of the part-III of the Scheme. At this rt stage, it may also be noticed that impugned order passed by Deputy Commissioner suggests that counsel representing the NHPC before him never raised plea with regard to decision, if any, taken in the meeting held on 18.11.2002, where decision was taken to provide alternative package to the affected persons in lieu of the employment. Hence, it is ample clear that at the time of passing impugned order, Deputy Commissioner had afforded an opportunity of being heard to the counsel representing the NHPC, who drew attention of the Court to the certain provisions of the scheme but nowhere mentioned qua the decision taken by the authorities in the meeting held on 18.11.2002.
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19. Consequently, in view of the detailed discussion made hereinabove, this Court sees no illegality and infirmity in the .
impugned order dated 16.11.2011 passed by the learned Deputy Commissioner in terms of judgment rendered by this Court in CWP No. 2714 of 2011 titled "Karam Chand V. State of HP and Ors." and accordingly present petition is dismissed being devoid of any merit of and petitioner corporation is directed to provide suitable employment to respondent No.1 or his family member in terms of rt the recommendation made by the Deputy Commissioner.
However, at this stage, it may be clarified that respondent No.1 or his family member would be entitled to appointment/employment as per the requirement of the petitioner-corporation and respondent No. 1 shall have no right to claim employment, if any, on the basis of his qualification.
, 2016 (Sandeep Sharma),
manjit Judge.
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