Himachal Pradesh High Court
Surinder Kumar And Anr vs State Of H.P. And Ors. ...Repondents on 5 August, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 7498 of 2010
Date of Decision: 05.8.2016
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______________________________ _________________________
[
Surinder Kumar and Anr. ......Petitioners.
Versus
State of H.P. and Ors. ...Repondents
Coram
of
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?
For the petitioners: Mr. Rakesh Kumar Dogra, Advocate.
For the respondents:
rt Mr. Rupinder Singh Thakur, Additional
Advocate General, with Mr. Rajat
Chauhan, Law Officer, for respondents
No. 1 to 3.
Mr.Neeraj Gupta, Advocate, for
respondent No.4
_________________________________________________________
Sandeep Sharma, J. (Oral)
By way of present writ petition filed under Article 226 of the Constitution of India, the petitioners have prayed for following reliefs:-
a) That the respondents may kindly be directed to grant benefit to the petitioners as prescribed under the scheme Annexure P-2 especially under clauses 3.0 and 3.1 and all other benefits granted to the similarly situated persons by the respondents who have become houseless/landless under the scheme.
b) That the record pertaining to the case may kindly be ordered to be requisitioned from the respondents for the perusal of this Hon'ble Court.
c) That the cost of this litigation may also be awarded in favour of petitioner.
Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:58:52 :::HCHP -2-d) Any other or further relief(s) as this Hon'ble Court may deem just and proper in the facts and circumstances of the case may also kindly be granted in favour of the petitioners and against the respondents.
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2. Briefly stated facts as emerge from the pleadings as well as documents annexed therewith are that land of petitioners along with other persons of the area was acquired for the purpose of construction of Kol Dam Hydro Electric Project ("Project" for the sake of of convenience) in District Bilaspur, Himachal Pradesh. Petitioners with a view to substantiate that their property was also acquired for the rt purpose of construction of the Project, placed on record certificate issued by the Naib Tehsildar, Land Acquisition Kol Dam Bilaspur in the shape of Annexure P-1. Pleadings further reveal that at the time of construction of the Project by respondent No. 3, an agreement was executed among the Government of Himachal Pradesh, National Thermal Power Corporation and H.P. State Electricity Board for the execution of Kol Dam (4200 Mega Watt) on 26.2.2000, wherein, State Government in consultation with respondent No.3, framed Rehabilitation and Resettlement Scheme (In short "the Scheme") for the benefit of oustees of the project. Perusal of Annexure P-2 suggests that Government of Himachal Pradesh, National Thermal Power Corporation and H.P. State Electricity Board entered into an agreement, wherein vide Clause 3.0. i.e. resettlement and rehabilitation issues, resolved that respondent-corporation shall implement the Plan/Scheme, as detailed ::: Downloaded on - 15/04/2017 20:58:52 :::HCHP -3- in Annexure P-2, and Govt. of H.P. shall extend all necessary assistance and inputs and shall monitor the implementation of the plan. It would .
be apt to reproduce clause 3.0 of the agreement herein below:-
"3.0 Resettlement and rehabilitation issues:-
3.1 The corporation shall implement the resettlement & Rehabilitation Plan (R&R Plan) as detailed in Annexure-II.
GOHP shall extend all necessary assistance & inputs in implementing the R&R Plan. The GOHP shall monitor the implementation of R&R Plan.
3.2. All R&R Plan cost shall be incurred by CORPORATION of and shall form part of capital cost for the purpose of Tariff."
3. Perusal of the Scheme suggests that in addition to the rt compensation benefits under the Land Acquisition Act, 1894 (In short "the Act"), the persons who became landless/houseless, have been made entitled for certain other benefits i.e. employment, which is prescribed under Part-III Clause 3.0 and 3.1 in the Scheme, perusal whereof, provides that one member of each affected family would be shortlisted for consideration for employment depending on number of jobs in the project.
4. In the present case, Petitioner No.1 (father of petitioner No.2), preferred an application on 30.9.2004 to Chief Parliamentary Secretary for grant of employment to his son and same was forwarded to Collector, Bilaspur (Annexure P-3). However, no response, whatsoever, was received by the petitioners compelling them to serve legal notice dated 13.5.2008 on respondents No.3 & 4 to abide by the ::: Downloaded on - 15/04/2017 20:58:52 :::HCHP -4- terms and conditions of the Plan/Scheme made at the time of the acquisition of land for the construction of the Project. But despite .
aforesaid, no action whatsoever, was taken by respondent No. 3 to provide job to petitioner No.2 being houseless and landless person and as such, petitioner No.1 was compelled to submit application (Annexures P-5 & 6) to the Hon'ble Chief Minister of Himachal Pradesh.
of It appears that when no ,response whatsoever, was received by him pursuant to his request made to the Chief Secretary as well the Hon'ble Chief Minister, petitioners approached this Court by way of present rt petition seeking reliefs (reproduced supra).
5. Petitioner No.1 claimed that after acquisition of his land, he became landless and houseless and as such, application filed by him, for appointment of his son (petitioner No.2) in terms of Part III, Clause 3.0 i.e. employment of the scheme, was required to be allowed by the respondent. He also averred that similar benefits have also been given to the similarly situated persons and action of respondent denying him the benefits is arbitrary and discriminatory and is in violation of Article 14 of the Constitution of India. Petitioner has also contended that action of respondents in not providing employment to his son, is not in the public interest because he made land available to respondent No. 3 for construction of the Project, as a result of which, he is rendered houseless and landless. Hence, this petition before this Court.
::: Downloaded on - 15/04/2017 20:58:52 :::HCHP -5-6. Respondents No. 1 and 2, by way of filing reply, refuted the claim of the petitioners and stated that they have not approached this .
Court with clean hands, rather, concealed material facts and truth.
They stated that at the time of acquisition of land, petitioners were resident of village Kangar, Tehsil and District Una only but they had purchased 0-2 bigha of land at Harnora to take benefit of being oustee of and as of today, they are residing at Una, hence, present petition is not maintainable. Respondents No. 1 and 2 also stated that names of the petitioners were not entered in the Parivar Register of Gram Panchayat rt Harnora, prior to the notification under Section 4 of the Act as per clause 3.1.1 of the Annexure Part-II to the agreement. They also stated that as per Part-III 3.0 employment, of the scheme, employment shall be provided by the Project Authority for personnel in category of unskilled and skilled workmen as specified in Para 8.1 and 8.2 of the agreement and in that regard, eligibility criterion for regular employment would be that one member of each affected family will be short listed for consideration for employment depending upon the number of jobs in the Project, whereas as per clause 3.1.1, 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 (In short " Parivar Register") as on the date of notification under Section 4 of the Act. Respondents ::: Downloaded on - 15/04/2017 20:58:52 :::HCHP -6- claimed that in view of the provisions contained in 3.0 and 3.1.1, rehabilitation benefit could only be granted to those families whose .
names figured in the Parivar Register prior to issuance of notification under Section-4 of Act. But in the present case, name of the petitioner did not figure in the Parivar Register prior to the issuance of said notification, rather, his name appeared at Sr. No. 346 page No. 36 of of the list prepared by field revenue agency and as such, they were not found eligible/ considered/recommended for the said benefit to be given to those families whose names figured in the Parivar Register.
rt
7. Respondent No. 3 also filed reply, wherein it is stated that petitioners have no cause of action to file this writ petition because they do not fall within the scheme and definition of oustee of the Project. It is further stated that Deputy Commissioner is the sanctioning authority for rehabilitation grant and list of rendered houseless families to be certified by the Deputy Commissioner and respondent No.3 has to do nothing with the rehabilitation grant. It is also stated that since petitioners are resident of village and Post Office Kangar, Tehsil & District Una, HP, having house as well as landed property and at present residing with their family at village Kangar only, no prejudice/injustice as is being alleged, has been caused to them.
8. Similarly, Respondent No.4 also filed separate reply refuting all the averments contained in the petition and stated that there is no ::: Downloaded on - 15/04/2017 20:58:52 :::HCHP -7- cause of action in favour of the petitioners to file and maintain the petition before the Hon'ble Court invoking extraordinary jurisdiction of .
this Court. It has also been stated that petitioners are not eligible for grant of any benefit under the Scheme framed under the Tripartite Agreement executed between the NTPC Ltd. and H.P. State Electricity Board and as such, petition deserves to be dismissed.
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9. Respondent No. 4 specifically stated that no right of the petitioners has been infringed or violated, which could compel them to approach this Court by way of writ petition. It has been specifically rt denied that petitioners at any point of time were entitled to claim any benefit of "oustees", under the Scheme since they were never included in the list of houseless and landless persons as would be seen from the averments and as such, their case was rightly not considered for employment in terms of the Scheme. This respondent also claimed that due and admissible compensation has been already paid to the petitioners for the acquisition of their land and at no point of time, petitioners became landless/houseless and there is no occasion, whatsoever, to examine the claim of the petitioner No.2 for employment. Respondent No.4 also contended that it is not on mere acquisition of holding of the person, one becomes entitled to claim benefit under the aforesaid Scheme, rather, it is on account of person having become landless/houseless under the definition of "oustee". In ::: Downloaded on - 15/04/2017 20:58:52 :::HCHP -8- the present case, at no point of time, petitioner No.1 became landless and houseless and as such his name was rightly not entered in the list of .
houseless persons by the Deputy Commissioner, Bilaspur, HP. At the cost of repetition, it may be noticed that names of the petitioners did not find mention in the Parivar Register of village Harnora, Bilaspur. In the aforesaid background, respondent prayed for dismissal of the petition of with costs.
10. I have heard the learned counsel for the parties and carefully scrutinized the record.
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11. It is undisputed that land of the petitioners was acquired by respondent No. 3 for the purpose of construction of the Project and they were also given compensation in lieu of the same by resorting to the provisions of the Land Acquisition Act. Perusal of agreement dated 26.2.2000 (Annexure P-2) suggests that vide clause 3.0 of the agreement, the Scheme was framed for the benefit of oustees of the Project, wherein, in clause-1.2, "oustees" as well as "family", have been defined, which clearly portrays that "a land owner who has been deprived of his house or land or both on account of acquisition proceedings/private negotiations in connection with the construction of Kol Dam Project are entitled to compensation in lieu thereof and includes his successors in interest." Similarly, "family" has been defined as husband/wife, who is entered as owner/co-owner of land in the ::: Downloaded on - 15/04/2017 20:58:52 :::HCHP -9- 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 under Section 4 of the Land Acquisition Act, 1894. The most basic criterion for having benefit of the Scheme for the rehabilitation and resettlement of the oustees of the Project (Kol Dam), of wherein under chapter-3, provision of employment has been made for the affected families, who became houseless/landless due to acquisition of land.
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12. In the present case, petitioners themselves claimed to be Kol Dam oustees and landless persons, who approached respondent No. 3 for providing employment (to petitioner No.2) in terms of the Scheme but interestingly no document, whatsoever, has been placed on record by the petitioners suggesting that immediately after acquisition of land in year, 2000, he (petitioner No.2) or his father (petitioner No.1) filed an application to the respondents praying therein for employment in terms of the Scheme, rather, they have placed on record letters written by them (petitioner No. 1) to Hon'ble Chief Minister as well as Chief Parliamentary Secretary, who recommended the case of petitioner No.1 to the Collector Bilaspur for appointment of his son (petitioner No.2). Interestingly, legal notice dated 13.5.2008, got issued by the petitioners to respondents No. 3 and 4, also nowhere reveals that ::: Downloaded on - 15/04/2017 20:58:52 :::HCHP
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petitioner No.1 at any point of time applied to the respondent corporation to provide employment to his son in terms of the scheme .
supra. Careful perusal of the documents made available on record nowhere suggests that the petitioner ever applied to the respondent in terms of the scheme. Similarly, this Court was unable to find mention of any document/application ever filed by the petitioner for his son's of employment and as such, is unable to accept the contention put forth on behalf of the petitioner that despite several requests his son's case was not considered by the respondent for employment.
rt Moreover, petitioners nowhere rendered any explanation for inordinate delay in maintaining the present petition. Admittedly, land was acquired in the year, 2000 and scheme, being relied upon by the petitioner, was also framed in the year, 2000, but present petition has been filed in the year, 2008 i.e after 8 years of acquisition of land. Petitioners have nowhere stated in the application reasons, if any, for inordinate delay in maintaining the present petition for redressal of their grievance. After perusing the pleadings available on record as well as the fact that petition has been filed after an inordinate delay of eight years, this Court is compelled to draw adverse inference that petitioners at no point of time directly applied to respondent No. 3 for employment, if any, in terms of the scheme and as such, present petition deserves to be dismissed solely on the ground of delay.
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13. This Court during the proceedings of the case had an occasion to go through the various provisions of the scheme relied .
upon by the petitioners, which provides for employment also. Clause-3 of the scheme provides for employment in category of unskilled and skilled workmen as specified in Para 8.1 and 8.2 of the agreement but for that, basic condition is that person should have rendered houseless of and landless after acquisition of land. Beside aforesaid condition, another crucial condition for determining entitlement, if any, for employment, is entry of the name of person in the revenue concerned rt Parivar Register at the time of notification under Section 4 of the Act.
Clause-C of 3.1.5 clearly provides that no person would be eligible for the employment in the project, who is not entered as concerned affected family in the Panchayat Pariwar Register. Careful perusal of reply filed by respondents No. 1 to 3 clearly suggests that at the time of issuance of notification under Section 4 of the Act, name of the petitioner was not entered in the Register and as such, his case was not rightly considered for employment in terms of the scheme, rather, respondents have specifically sated that the petitioner at the time of notification was resident of village and they had only purchased 0-2 bighas of land to take advantage of being oustee. Further perusal of reply filed by respondent No.4 also suggests that at no point of time, Deputy Commissioner recommended the name of the petitioner for ::: Downloaded on - 15/04/2017 20:58:52 :::HCHP
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employment. It also finds mention in the reply that name of the petitioner is not included in the list of landless and houseless people .
Annexure R-1 and as such, they had no occasion whatsoever, to examine the case of the petitioner for employment. Since petitioner himself has not placed on record any document suggestive of the fact that they at any point of time, applied to the Deputy Commissioner for of recommending his name for employment to respondent No.4, this Court after perusing replies filed by respondents have every reason to believe that no application whatsoever, in terms of the Scheme, was rt ever presented by the petitioner to the concerned authorities and as such, they had no occasion whatsoever to examine the same. Leaving everything aside, it clearly emerges from the record that at the time of issuance of notification under Section 4 of the Act, name of the petitioner was not figuring in the Panchayat Pariwar Register and as such, their case could not be considered for employment in terms of chapter-3 of the scheme. At this stage, counsel representing the petitioner invited the attention of this Court to judgment dated 27.8.2008 passed by the Coordinate Bench of this Court in 755 of 2008 Gopal Dass titled Gopal Das versus State to substantiate his plea that similar persons have been already granted relief., as has been prayed by them.
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14. However, this Court after perusing the judgment supra finds that in that case, respondents had categorically admitted in the reply .
that land/house of the petitioner was acquired for the Construction of the Project and only reason for not granting benefit to the petitioner was report of the Tehsildar, wherein he had stated that acquired house was non-residential and as such, facts of this case, being totally of different cannot be made applicable in the present case. Apart from this, counsel representing respondent No.4 informed this Court that the judgment relied upon by the petitioner is already under challenge rt before the Division Bench of this Court by way of LPA.
15. After careful perusal of the documents, especially, scheme referred above, this Court is of the view that petitioner has not been able to carve out a case for employment in lieu of acquisition of his land for construction of the project and as such, no interference, whatsoever, of this court is warranted in the present facts and circumstances. Since petitioner has not placed on record any document suggestive of the fact that his case was ever recommended by Deputy Commissioner to respondent No.4 for employment being houseless and landless person, this Court sees no fault if any, with the action of respondent No.4 in denying employment to respondent No. 4.
On the other hand, respondents by way of filing reply have been able to convince this Court that at the time of issuance of notification under ::: Downloaded on - 15/04/2017 20:58:52 :::HCHP
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Section 4 of the Act, name of the petitioner was not entered in the Parivar Register, which was a condition precedent i.e. 3.1.1 clause-C of .
3.1.5 of the scheme, for determining the eligibility, if any, of the person seeking employment in terms of the scheme.
16. Consequently, in view of the aforesaid detailed discussion made herein above, present petition is dismissed being devoid of any of merit. However, this Court deems it fit to reserve liberty to petitioner to file representation to the Deputy Commissioner Bilaspur, for redressal of his grievance, if any, in terms of the Scheme, within a period of one rt month from today. The Deputy Commissioner, Bilaspur, after receipt of representation, may examine claim of the petitioner in terms of the Scheme and pass appropriate orders within two months after receipt of representation. Needless to say, the Deputy Commissioner while examining representation of the petitioner would afford appropriate opportunity to the parties to present their claim duly supported by the documents.
August 05, 2016 (Sandeep Sharma),
manjit Judge.
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