Himachal Pradesh High Court
______________________________________________________________________ vs State Of Himachal Pradesh And Others on 18 November, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 4810 of 2009
Reserved on : 03.11.2016
.
Date of Decision: 18.11.2016
______________________________________________________________________
Praveen Singh and another ....Petitioners.
Vs.
State of Himachal Pradesh and others .....Respondents.
of
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the petitioners:
rt Mr. B.C. Negi, Senior Advocate, with Mr.
Pranay Pratap Singh, Advocate.
For the respondents: Mr. Vikram Thakur, Deputy Advocate
General, for respondents No. 1 to 4.
Mr. K.D. Shreedhar, Senior Advocate,
with Ms. Shreya Chauhan, Advocate, for
respondents No. 6 and 7.
Ajay Mohan Goel, Judge:
By way of this petition, the petitioners have prayed for the following reliefs:
"(i) Issue a writ of certiorari to quash Annexures P-14, P-15, P-21, P-23, P-25 and P-29.
(ii) Issue a writ of mandamus directing respondents to implement Annexure P-7.
(iii) Issue a writ of certiorari to call for the records pertaining to the case at hand.
Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:34:57 :::HCHP 2(iv) Direct the respondent authorities to pay the cost of the petition.
(v) Such other order, which this Hon'ble Court deems fit and proper, may also be passed in favour of the petitioner, in the .
interest of justice and fair play."
2. Facts emerging from the pleadings of the parties are as under:
Petitioner No. 2 was owner in possession of land in village of Thadi, which was acquired for Chamera Hydroelectric Project Stage-I and was awarded compensation in lieu of his land and house which was acquired for the above project. Besides this, he was also provided rt employment in Chamera Hydroelectric Project Stage-I against his acquired land and house as per the provisions of the Resettlement and Rehabilitation Scheme for Chamera-1 Project.
3. Petitioner No. 2 was also owner of land measuring 0-5-0 bighas in Mohal Gurad, out of which, land measuring 0-1-15 bighas alongwith a house of petitioner No. 2 was acquired for the reservoir of Chamera Hydroelectric Project Stage-II in Mohal Gurad vide Notification dated 23.07.2001 issued under Section 4 of the Land Acquisition Act and award qua which acquisition was announced on 31.01.2003
4. Respondent-State has framed Resettlement and Rehabilitation Scheme for rehabilitation of persons/families displaced/affected due to construction of Chamera Hydroelectric Project Stage-II. Name of petitioner No. 1, who is son of petitioner No. 2 was sponsored for employment in Chamera Hydroelectric Project Stage-II in lieu of 0-1-15 bighas of land of petitioner No. 2 (father of petitioner No. 1) ::: Downloaded on - 15/04/2017 21:34:57 :::HCHP 3 having been acquired for construction of Chamera Hydroelectric Project Stage-II. This was done by respondent No. 2 vide letter dated 27.07.2004 (Annexure P-7). This was followed by various correspondences made in .
this regard by respondent No. 2 with the Project authorities.
5. It is an undisputed position that Chamera Hydroelectric Project Stage-I and Chamera Hydroelectric Project Stage-II are different Projects and separate Resettlement and Rehabilitation Schemes were framed and approved by the Government of Himachal Pradesh for of resettlement and rehabilitation of displaced/affected persons of both these projects. Incidentally, both these projects belong to same executing rt agency, i.e. respondent No. 6-National Hydro Electric Power Corporation Ltd.
6. The case of petitioner No. 1 was refused to be considered by respondent No. 6-Corporation under the Resettlement and Rehabilitation Scheme framed and approved by the Government of Himachal Pradesh for rehabilitation of the persons/families displaced/affected due to construction of Chamera Hydroelectric Project Stage-II on the following grounds:-
(a) that petitioner No. 1 as per the records was resident of village Thadi, Tehsil and District Chamba, hence he could not be said to be a displaced person on account of construction of Chamera Hydroelectric Project Stage-II;
(b) that Notification for acquisition of land for Chamera Hydroelectric Project Stage-II was issued on ::: Downloaded on - 15/04/2017 21:34:57 :::HCHP 4 23.07.2001 and petitioner No. 2 has purchased land in village Gurad immediately before the issuance of said Notification, hence the petitioners could not be considered .
to be permanent residents or affected persons for the purpose of Resettlement and Rehabilitation Scheme;
(c) that under Resettlement and Rehabilitation Scheme, only one member of the affected family can be granted employment and petitioner No. 2 has already been of given employment under Chamera Hydroelectric Project Stage-I; and
(d) rt that entry in favour of the petitioners in the Parivar register of village Gurad was a fake entry.
7. The factum of the acquisition of land of petitioner No. 2 for Chamera Hydroelectric Project Stage-II is not denied even by respondent-
State and they have further stated in their reply that detailed reasons for denial of employment to the petitioner were submitted by respondents No. 6 and 7.
8. I have heard the learned counsel for the parties and also gone through the pleadings placed on record by the respective parties.
9. The Resettlement and Rehabilitation Scheme for the persons who became oustees on account of acquisition of their lands, houses etc. for the construction of Chamera Hydroelectric Project Stage-II in Chamba District (hereinafter referred to as "the R & R Scheme Stage-II) is on record as Annexure P-5. A perusal of the same demonstrates that this Scheme has been framed for the Resettlement and Rehabilitation of ::: Downloaded on - 15/04/2017 21:34:57 :::HCHP 5 oustees of Chamera Hydroelectric Project Stage-II. In other words, it is not as if there was a composite single Resettlement and Rehabilitation Scheme for oustees of Chamera Hydroelectric Project Stage-I and .
Chamera Hydroelectric Project Stage-II. It has also come in the reply of the respondent-State that Chamera Hydroelectric Project Stage-I and Chamera Hydroelectric Project Stage-II are different projects being executed by the same Corporation and separate Resettlement and Rehabilitation Schemes have been framed and approved by the of Government of Himachal Pradesh for both the said projects.
10. Under the definition Clause of R & R Scheme for Chamera Hydroelectric rt Project Stage-II, oustees or affected family, family, employment and holding have been defined as under:
"(i) 'Oustees' or 'affected family' means a Land Owner who has been depirived of his/her land, house or both on account of acquisition of his/her land for Chamera Hydro Electric Project State-II, Karian and is entitled to compensation in lieu thereof and includes his/her successors in interest.
(ii) 'Family' means husband/wife, who is entered as owner in the Revenue record, their children including step or adopted children and includes his/her parents and those brothers and sisters who are living jointly with him/her as per entries of Panchayat Parivar Register as on the date of Notification of Section-4 of the Land Acquisition Act, 1894.
Provided that only the Panchayat Parivar Register entry, as it stood on the date of Notification of Section-4 of Land Acquisition Act, 1894, shall be taken ::: Downloaded on - 15/04/2017 21:34:57 :::HCHP 6 into account for the purpose of 'Separate Family' for rehabilitation benefit i.e. employment in the Project
(iii) The word 'employment' means employment on regular basis.
.
(iv) 'Holding' means the existing land holding possessed by the family of an oustee immediately after acquisition of his property."
11. It is further mentioned in the said Scheme that one member of of each affected family shall be eligible for employment in the Chamera Hydroelectric Project Stage-II as elaborated therein. It is further provided in the Scheme that no member of affected family shall be eligible for rt employment if quantum of his acquired land is one biswa or less. The scheme further contemplates that no person shall be eligible for employment in the Project, who is not entered as member of the concerned affected family in the Panchayat Parivar Register.
12. Clause (x) of Part-III of the Scheme which deals with employment reads as under:
"(x) No person or his family member shall be eligible for employment if he become 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"
13. In this background, this Court has to consider as to whether respondents No. 6 is justified in not conferring the benefits under the R & R Scheme for Chamera Hydroelectric Project Stage-II in favour of the petitioners including grant of employment in favour of petitioner No. 1?
::: Downloaded on - 15/04/2017 21:34:57 :::HCHP 714. The petitioners have appended a copy of Parivar Register of Gram Panchayat Gurad, village Gurad-II, Development Block Mehla, as per which, the names of the petitioners are reflected in the Parivar .
register of Gram Panchayat Gurad much before the Notification under Section 4 of the Land Acquisition Act was issued for acquiring land under Chamera Hydroelectric Project Stage-II. As per respondents No. 6 and 7, entry so recorded in the Parivar register is a fake entry. In justification of this contention of their's, it is averred by respondents No. 6 and 7 that of register shows that it was on the basis of an affidavit dated 30.07.1999 that this family was registered in village Gurad from village Thadi. It is rt further the stand of respondents No. 6 and 7 that register is not conclusive evidence of fact that petitioners are living in village Gurad and as per respondent No. 6, the Parivar register has been manipulated by the petitioners.
15. I am afraid that there is no merit in this contention of respondent No. 6 that there is a fake entry in favour of the petitioners in the Parivar register of Gram Panchayat, Gurad because in my considered view, respondent No. 6 does not has any competence to unilaterally decide as to whether entry of a family in the Parivar register in a Gram Panchayat in the State of Himachal Pradesh is fake or not. It is not as if respondent No. 6 had challenged the entry so made in favour of the petitioners in the Parivar register before the competent authority and they have obtained adjudication on this aspect of the matter from the competent authority.
::: Downloaded on - 15/04/2017 21:34:58 :::HCHP 816. Similarly, the stand of respondent No. 6 that Parivar register is not conclusive evidence of the fact that the petitioners have been living in village can also not be accepted in view of the fact that it is clearly and .
categorically contemplated in the R & R Scheme for Chamera Hydroelectric Project Stage-II in Part-III of the same which deals with employment that entry in Panchayat Parivar register will confer eligibility for employment in the project and no person shall be eligible for employment in the Project who has not entered as member of the of concerned affected family in the Panchayat Parivar register.
17. Clause (viii) of para-III is quoted hereinbelow:-
"(viii) rt No person shall be eligible for employment in the Project, who is not entered as member of the concerned affected family in the Panchayat Parivar Register."
18. Therefore, in this view of the matter, when there exists an entry in favour of the petitioners in Panchayat Parivar register, respondent No.6 cannot arbitrarily and unilaterally ignore it on the pretext that the same is a fake entry and not a conclusive evidence of the fact that petitioners have been living in village Gurad.
19. The contention of respondent No. 6 that petitioners were not displaced on account of acquisition of their land is also not sustainable because it is not a disputed fact that land of petitioner No. 2 measuring more than 1 biswa has been acquired for the purpose of Chamera Hydroelectric Project Stage-II.
20. A perusal of R & R Scheme for Chamera Hydroelectric Project Stage-II demonstrates that as per this Scheme, persons whose land has ::: Downloaded on - 15/04/2017 21:34:58 :::HCHP 9 been acquired for setting up of Chamera Hydroelectric Project Stage-II are entitled to different benefits depending upon the extent of the land which has been acquired and the effect which acquisition of such land has upon .
the affected family. It is contemplated in the Scheme that a landless person as defined in the Scheme shall be entitled for houseless grant as contemplated therein. It is further contemplated in the Scheme as to what are the benefits which accrue to persons who are rendered landless or become oustees on account of the acquisition of land for Chamera of Hydroelectric Project Stage-II or the persons who have been defined as "eligible persons" under the Scheme.
21. rt Under Part-II of the Scheme which deals with sanction of rehabilitation grant, providing of employment, rehabilitation grant, infrastructural facility grant and houseless grant, an eligible person has been defined as under:
"Eligible persons means a person who after acquisition holds less than 5 bighas of land as a land owner or as a tenant"
22. Part-III of the Scheme, which deals with employment further provides that one member of each affected family shall be eligible for employment in the Chamera Hydro Electric Project State-II in the mode and manner as prescribed therein.
23. As I have already mentioned above, the Scheme also contemplates that no member of affected family shall be eligible for employment if quantum of his acquired land is one biswa or less and no person shall be eligible for employment in the Project, who is not entered ::: Downloaded on - 15/04/2017 21:34:58 :::HCHP 10 as member of the concerned family in the Panchayat Parivar register and further no person or his family member shall be eligible for employment if he become owner of land by way of sale, gift, exchange etc. after the date .
of Notification under Section 4 of the Land Acquisition Act, 1894.
24. In the present case, admittedly, land was purchased by petitioner No. 2 which was subsequently acquired for Chamera Hydroelectric Project Stage-II before the issuance of Notification under Section 4 of the Land Acquisition Act, 1894 for the acquisition of land in of issue. In this view of the matter, the stand of respondent-Corporation that petitioners are not entitled for the benefits under the R & R Scheme rt for Stage-II Project because they had purchase land immediately before the issuance of Notification under Section 4 of the Land Acquisition Act is without any merit because there is no bar in the Scheme that the persons who purchased land immediately before the issuance of Notification under Section 4 of the Land Acquisition Act shall not be entitled for the benefits of R & R Scheme for State-II Project.
25. Similarly, as the petitioners fulfill all the eligibility criteria which are laid down in the R & R Scheme for Stage-II Project to be considered for some of the benefits which accrue to an affected family whose land is acquired for Stage-II Project, including employment, the same cannot be denied to the petitioners on the ground that the petitioners have not been displaced on account of acquisition of their land for the Project or that petitioner No. 2 had already been granted employment in lieu of acquisition of land for State-I Project. There is no bar contemplated in the Scheme that in case of families whose land is ::: Downloaded on - 15/04/2017 21:34:58 :::HCHP 11 acquired for Stage-II Project and whose one member has already been granted employment in Chamera Hydroelectric Project Stage-I in lieu of the acquisition of land of that very family for Stage-I project also, then no .
member of that family shall be entitled for benenfits including employment under the R & R Scheme for Chamera Hydroelectric Project Stage-II.
26. In these circumstances, respondents cannot deny the benefits of Resettlement and Rehabilitation Scheme formulated by the of Government of Himachal Pradesh which are accruable to oustees/ affected families whose land has been acquired for Chamera-II project on the rt grounds which have been taken by them in their respective replies. If according to respondents a beneficiary of Chamera-I project should not be entitled for benefits of Resettlement and Rehabilitation Scheme for Chamera-II project or any such like subsequent project(s), then such like conditions should be contained in the Resettlement and Rehabilitation Scheme itself and in the absence of any such bar or condition contained or contemplated in the Scheme, the benefits which are accruable to oustees/ affected families whose land has been acquired for Chamera-II project cannot be denied to it on the said grounds.
27. In this view of the matter, in my considered view, the denial of the benefits of the R & R Scheme for Chamera Hydroelectric Project Stage-II to the petitioners by respondent No. 6 and 7 is arbitrary, totally irrational and does violence to the spirit and contents of the R & R Scheme for Chamera Hydroelectric Project Stage-II.
::: Downloaded on - 15/04/2017 21:34:58 :::HCHP 1228. Accordingly, the writ petition is allowed, Annexure P-14 dated 18.11.2006, Annexure P-15 dated 02.02.2007, Annexure P-21 dated 23.05.2007, Annexure P-23 dated 15.06.2007, Annexure P-25 dated .
04.07.2007, Annexure P-29 dated 18.02.2008 are quashed and set aside and respondents are directed to confer upon the petitioners all benefits including employment as are accruable to them under the Resettlement and Rehabilitation Scheme which was framed by the Government of Himachal Pradesh for the benefits of oustees/affected families of of Chamera Hydroelectric Project Stage-II. The writ petition stands disposed of, so also the miscellaneous application(s), if any. No order as to costs.
rt (Ajay Mohan Goel)
Judge
November 18, 2016
(bhupender)
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