Calcutta High Court (Appellete Side)
Eastern Coal Fields Ltd vs Smt. Bela Rani Bhattacharya & Ors on 18 July, 2011
Author: Harish Tandon
Bench: Pinaki Chandra Ghose, Harish Tandon
1
Form No.J. (2)
In The High Court At Calcutta
Civil/Appellate Jurisdiction
Present :
The Hon'ble Justice Pinaki Chandra Ghose
&
The Hon'ble Justice Harish Tandon.
M.A.T. No. 1350 of 2009.
Eastern Coal Fields Ltd.
-vs-
Smt. Bela Rani Bhattacharya & Ors.
With
M.A.T. No. 1351 of 2009.
Eastern Coal Fields Ltd.
-vs-
Krishna Kumar Singh & Ors.
For the appellant : Mr. Nikhil Kumar Roy
Ms. Shila Sarker
For the respondents : Ms. Ajeya Mitra
Mr. Supriya Ranjan Ghosh
Heard on : 22.4.2010 & 26.4.2010
Judgment on : 18.7.2011
Harish Tandon, J.:
The respondents are the land-losers of the appellant, Eastern Coalfields Ltd. (ECL) who took the possession of the land for the purpose of colliery. While acquiring such land the ECL floated a scheme of giving employment to one person of the family against one acre of land. Subsequently the ECL found difficult to provide employment as 2 aforesaid, they subsequently adopted a scheme of allotting Grade "D" steam coal of 1600 mt. against one acre of land. The respondents are the owners of 2.39 acres of land out of which the ECL acquired 1.79 acre leaving .60 decimal as unacquired. It is a case of the respondents that the ECL, though paid crop compensation for the period from 1975 to 1977 but has not paid the price of the land, so acquired, used and utilized, and also the steam coal of Grade "D" in terms of the said scheme. Several representations were made but the ECL did not respond. It is further contended that the ECL has issued a delivery order in the ratio of 1600 mt. Per acre of a steam coal of Grade "D" to many others and discriminated the respondents which is violative of Article 14 of the Constitution of India. In the backdrop of the above fact, the respondents filed a writ application before this court praying for writ of mandamus commanding the respondents to release the coal in favour of the respondents.
The ECL has contested the said writ application denying the right of the writ petitioner as claimed in the writ application. So far as the case of discrimination is concerned the ECL has taken the specific defence that the allotment of the coal was made in terms of an order of the Hon'ble Court passed in favour of those persons. The appellant sought to contend that Functional Directors of the ECL have taken a decision on August 20, 1987 to ban the issuance of the coal delivery orders to the land-losers in lieu of an employment with immediate effect.
The Hon'ble First Court disposed of the writ application directing the respondent authorities to hand over the unused portion of the land to the petitioners and also to pay compensation for acquisition of the land and supply of steam coal of Grade "D" to the petitioner in ratio of 1600 mt. Per acre at a notified price along with cess, levies and other statutory charges.
Mr. Pradip Kumar Dutta, learned Advocate appearing for the appellant, ECL, submits that the order impugned in the mandamus appeal is not sustainable inasmuch as the subsequent change in policy cannot vest right upon the writ petitioner to contend that the authority is estopped with their promise in denying the benefit under the revoked policy. In support of such contention the appellant relies upon a judgement 3 reported in 2001 (2) CLJ 514 (Steel authority of India Vs. Sarat Chandra Shaw). It is further contended that the writ jurisdiction is a discretionary power to be exercised in favour of a person who promptly approaches the court if there is a gross delay and latches on the part of the petitioner no relief should be granted by the writ court.
Per contra, the learned Advocate appearing for the respondents contend that the vested and acquired right cannot be taken away by reason of a policy and/or amendment thereof and place reliance upon a decision of the supreme Court in case of Union of Indian & Ors. Vs. Assian Food Industries reported in (2006) 13 SCC 542.
It is further contended that the writ petitioner has persistently making representation but such representation was not productive of any fruit. Even if there is any delay in approaching the court such delay cannot be vital as third party's interest has not accrued in the meantime. In support of such contention reliance was placed upon a judgment of this court in case of Bankim Prasad Karmakar Vs. The West Bengal State Minor Irrigation Corporation Ltd. & Ors. reported in 1996 (2) CLJ 137. Reliance was further placed upon an unreported judgment of the Supreme Court in case of Eastern Coal Fields Ltd. Vs. Dugai Kumar & Anr. (Civil Appeal No. 245 of 2004). To substantiate that the Hon'ble Supreme Court has passed an order on July 28, 2008 in favour of similarly situated person in the following terms :
"25. From the totality of circumstances, we are of the considered view that the respondent-writ petitioner was entitled to the price (consideration) for the land sold by him by registered sale deed to the company which has already been paid to him. He was also entitled to 1600 MT coal which was given to him as per the policy. He was further entitled to 1008 MTs which has been ordered to be given to him towards "balance quantity" on the basis of statement made by the Counsel for the Company and in terms of 'usual order' dated September 6, 1999 passed by the learned single Judge. We are, however, convinced that the learned single Judge was not justified in granting prayer on mentioning the matter on September 13, 1999 without any application for modification of earlier order and direction to the Company to allot to the writ petitioner balance quantity or 6800 MTs of steam coal Grade-D quality. To that extent, therefore, the appeal filed by the Company deserves to be allowed."
Having considered the submissions made at the bar the fact which emerges that the predecessor in interest of the respondents purchased 2.39 acre of land by registered deed of conveyance dated 30th August 1938. The ECL previously acquired 1.79 acre of 4 land out of the said 2.39 acre of land thereby leaving .60 decimal of land. There was a recommendation for purchase of the aforesaid land used and possessed by the ECL for colliery purposes. However during the cadastral settlement the plot of land acquired and utilized for the purpose of colliery by the ECL was recorded as 1.05½ acre of land. It is also not in dispute that the crop compensation was paid for the period from 1975 to 1977. A policy and/or recommendation was made for providing one employment to each member of the family against the acquisition of one acre of land but later on it became difficult to give such employment and a further recommendation was made to give steam coal of grade "D" in ratio of 1600 mt. Per acre to the land-losers in lieu of such employment. The petitioners are denied such recommendation of supply of steam coal in lieu of an employment on the ground that by a subsequent recommendation the same has been banned. Such ban is imposed on 20th August 1997. It is evident from the materials placed on the record that even after a declaration to ban the issuance of the coal delivery orders in lieu of the employment, the coal has been delivered to some of the other land-losers.
Fugitive attempt is made that such coal has been delivered in terms of an order of the court. The Hon'ble Supreme Court in case of Dugai Kumar & Anr. has categorically held that the land-losers are entitled to delivery of coal and in view of such decision the writ petitioner cannot be discriminated with the similarly circumstanced persons by the ECL.
The ground taken by the appellant that the petitioner has not promptly approached the writ court and a writ application should be dismissed on the ground of delay is also not tenable. It is settled law that mere ground of delay the writ court cannot throw the writ petition if there is a sufficient reason explained in the writ petition (see Competent Authority Vs. Bangalore Jute Factory (2005) 13 SCC 477). If there is a sufficient cause shown in the petition and the explanation so offered was found to be satisfactory the delay alone cannot be a ground to throw the writ petition and the court should hear the mater on merit (see Nagpur Corporation Vs. Nagpur Handloom AIR 1963 SC 1192). The apex court in case of Sushil Kumar Yadunath Jha Vs. Union of India & Anr. reported in AIR 1986 SC 1636 held that if the petitioner had been representing from one level to another hopping that the authorities would accede to the 5 request but the prayer was ultimately rejected by the authorities concerned in such event the delay should be considered to be properly explained and cannot be a fetter. It appears from the record that several representations were made from time to time which ultimately did not ripe to a fruitful result and last of such representation was made on 5th July 1999 and the writ petition is affirmed and filed on 11th October 1999. Thus the writ petition does not deserve to be defeated on the count of delay and/or latches. It has been held by the Division Bench of this court in case of Bankim Prasad Karmakar (supra) that the writ cannot be entertained on the ground of delay if any third party's interest is accrued, this is not a case where any third party's interest has been accrued. Above all as we have already held that the last representation was made on 5th July 1999 the instant writ application cannot be said to be smack of any diligence and/or promptness.
We have no hesitation to hold that once the Supreme Court has decided an issue and granted a relief to the similarly circumstanced person being a land-loser, why the petitioner should be deprived of such recommendation. The Hon'ble First Court has relied upon the judgment of Dugai Kumar & Anr. (supra) and disposed of the writ application in the light thereof, we do not find any illegality in the order impugned.
The appeal is, thus, dismissed. However, there shall be no order as to costs.
(Harish Tandon, J) I agree (Pinaki Chandra Ghose, J)