Himachal Pradesh High Court
Smt. Nisha Devi vs Satluj Jal Vidyut Nigam & Others on 1 June, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 1490 of 2008.
Reserved on18.5.2016.
Decided on: 01.06.2016.
.
Smt. Nisha Devi ....Petitioner.
Versus
Satluj Jal Vidyut Nigam & others. ... Respondents.
................................................................................................
of
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1
rt Yes.
For the petitioner. : Mr. Diwan Negi, Advocate.
For respondents No1 & 2. : Mr. Ramakant Sharma, Sr. Advocate with
Ms. Devyani Sharma, Advocate.
For respondent No.3. : Mr. V.S. Chauhan, Addl. With Ms Parul Negi,
Deputy Advocate General.
Ajay Mohan Goel, J.
The present petition has been filed praying for the following reliefs:
"a) That a writ of certiorari may kindly be issued to the respondents directing them to produce the entire records pertaining to the petitioner's case and the impugned letter dated 23.6.2007 (Annexure P-8), may kindly be quashed.
b) That a writ of mandamus may kindly be issued to respondent No.3 directing him to consider all the documentary proof produce by the petitioner and to issue a certificate to her to the effect that she falls within the definition of a 'landless family' 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 2
and is thus entitled to all the benefits under the Rehabilitation and Resettlement Scheme promulgated by the respondents.
c) That a writ of mandamus may kindly be issued to the respondents directing them to grant all the benefits to the .
petitioner under the Rehabilitation and Resettlement Scheme in accordance with her entitlement."
2. The case of the petitioner is that she was owner in possession of land measuring 0-09-90 hectares situated in village Jhakri, Tehsil Rampur, District Shimla which was of acquired for the purpose of project by respondents No. 1 and 2.
According to her, there is an Award as well as Resettlement rt and Rehabilitation Plan prepared by respondents No.1 and 2 for the persons, who have been displaced on account of construction of Nathpa Jhakri Project. The Award prepared by respondents No.1 and 2 (Annexure P2) contemplates that employment in the project area is to be provided to those persons who had been affected by construction of the project and the categories in order of priority includes persons who have been rendered completely landless as well as persons who have been left with land holding less than 5 bighas.
3. The contention of the petitioner is that, as a result of acquisition proceedings undertaken by respondent No.1 and 2, she has been rendered landless. According to her, land owned by her in Chak Gaura measuring about ½ bigha has been ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 3 transferred and mutated in the name of her brother under family settlement and as a result of this coupled with the fact that .
earlier the land she used to own has been acquired by respondent No.1 & 2, she has been rendered landless.
4. According to her, respondent No.3 was appointed as Rehabilitation and Resettlement Officer by the State of Government on 8.2.1994 to implement the terms of the Award as well as Resettlement and Rehabilitation Scheme (hereinafter rt to be referred as 'Scheme') of respondent No.1 and 2. She applied to respondent No.3 for grant of benefits under the said Scheme. It is further her case that on 7.12.1999 Government of Himachal Pradesh clarified the definition of 'family' for the purpose of Scheme and as per said clarification, family means husband/wife who is entered as owner/co-owner in revenue record, 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 entry of Pariwar Register, as on the date of Notification Section 4 of Land Acquisition Act, 1894. (in short 'Act') When petitioner became aware of the said position and of the factum that she was eligible for the benefits under the Scheme, she applied to respondent No.3 on 19.5.2001 for ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 4 conferring benefits upon her under the said Scheme including providing her a job under the Scheme in issue. She repeatedly .
visited the office of respondents and was assured on every occasion that efforts were being made to grant her benefits as per the Scheme.
5. As per the petitioner under the Scheme, each of landless family was to be allotted developed agricultural land equivalent to the area acquired or 05 bighas whichever is less, rt as well as other benefits including suitable employment to one member of each displaced family. It is further her case that for the purpose of employment, it was not necessary that a family should be rendered landless. However, the petitioner, though having been rendered landless, was not being issued necessary certificate by respondent No.3 nor respondents No.1 and 2 were granting her benefits under terms of the Award as well as the Scheme. Petitioner had earlier filed civil writ petition 476 of 2004 in this Court which was disposed of by this Court vide decision dated 24.4.2007 by issuing direction to respondent No.3 therein to consider the case of the petitioner in view of the amended definition of family and in case she is found landless within the meaning of amended definition then ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 5 for issuance of requisite certificate in her favour within two months with further direction that on such certificate of eligibility .
being issued in favour of the petitioner, respondent No.1 will process and decide the case of the petitioner for the grant of relief, if any, available to her under the Scheme.
6. Vide Annexure P-8 which was received by her in the of first week of July, 2007, respondent No.3 had rejected her case by holding that on the basis of revenue record, statement of rt petitioner and entries recorded in the Pariwar Register, it has been found that petitioner has not been entered as a separate family as on 16.6.1999, as per the definition of family and therefore, she does not fall under the category of landless person within the meaning of definition of family.
7. According to the petitioner, this decision of respondent No.3 is contrary to records and had she been given proper opportunity to submit documentary proof, she would have had established on record that she falls within the ambit of definition of 'landless'. Her case is that after her marriage in the year 1987, her name was deleted from the Pariwar Register Jhakri, Gram Panchayat Dhar Gaura and included in the Pariwar Register of her husband's family, at Gram Panchayat ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 6 Sargha, District Kullu. After residing with her husband's family for a couple of years in District Kullu, she returned to village .
Jhakri in the year 1989 with the intention to educate her children there, as there was no proper school in her husband's village. She gave birth to a son on 26.10.1988 and daughter in the year 1991 and both her children underwent their education of in Jhakri. Her further case is that she is residing independent either of her parental family or her husband's family. According rt to her, this is substantiated from record of Gram Panchayat Jhakri for the year 1998. Petitioner is maintaining separate residence at Jhakri as a separate family along with her children much before the year 1999, which was evident from various documents like Water connection, Electricity connection, Ration Card and Gas connection etc. According to her, she produced all these documents before respondents on various dates after receiving letter of rejection but respondents are not taking cognizance of the same. According to her, her case has been rejected by construing the entries recorded in the Pariwar Register for the year 1989 to 1998. Therefore, in this background, the petitioner has filed present petition praying for relief already mentioned hereinabove.
::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 78. As per reply filed to the petition by respondents No.1 and 2, there is no infirmity with the order passed by .
respondent No.3, vide which the said authority has come to the conclusion that petitioner does not fall in the category of landless within the definition of family. According to said respondents, besides the land which was owned by petitioner in of Jhakri, she was owner of land measuring 0.05.30 hectares in Chak Gaura which was not acquired by the said respondents.
rt The said land was transferred by petitioner by way of relinquishment deed on 4.5.2000 in favour of her brother. Thus, it is not as if the petitioner was rendered landless because her entire land was acquired by respondent No.1 and 2 for the purposes of the project. Even after acquisition of the land by respondent No.1 and 2, the petitioner was possessed with sufficient land which she relinquished in favour of her brother and accordingly she cannot be termed as landless within the meaning of the word 'family', as is being claimed by her. It is further the case of respondents No.1 and 2 that petitioner was married in the year 1987 in village Banuridhar, Gram Panchayat Dhara-Sarga, Tehsil Nirmand, Distt. Kullu. Therefore, according to respondents, the factum of land coming to the share of ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 8 petitioner having been acquired thereafter by no stretch of imagination can permit the petitioner to state that she has been .
displaced from her land and house and her existence has been affected by the project. It was further mentioned in the reply that, in fact, purposely petitioner has not disclosed the date on which she relinquished her share in favour of her brother. This of relinquishment was made on 4.5.2000. The said respondents also refuted contention of the petitioner that she was not given rt reasonable time by respondent No.3 to place on record the relevant documents in order to demonstrate that she was entitled to the benefits envisaged in the Rehabilitation Policy of respondent No.1 and 2. As per said respondents, keeping in view the fact that petitioner had already been married before acquisition of her share in the land at Jhakri it could not be said that she falls in the definition of displaced or landless person.
According to them, respondent No.3 had rightly rejected the case of the petitioner for issuance of certificate identifying the family to whom benefit is to be given under the Scheme.
9. In rejoinder which has been filed to the said reply by petitioner, she has reiterated that respondent No.3 has wrongly come to the conclusion that she does not fall within the ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 9 definition of 'family' especially keeping in view the fact that her was a separate family as per Annexure P-12 appended with the .
petition. It was further stated that factum of her having relinquished her share in favour of her brother could not have rendered her claim liable to be rejected for the reason that as per policy of the respondents, a person who was left with less of than 05 bighas of land after acquisition was also eligible for the grant of benefits and in the present case the total land holding rt of the petitioner after the land was acquired by respondents was 15 biswas only, which she relinquished in favour of her brother.
10. I have heard learned counsel for the parties and gone through the pleadings of the parties.
11. Before referring to the contention of the parties, it is necessary to take note of relevant parts of the Award and relevant provisions of Scheme of the respondents which are placed on record as Annexure P2 and P3. As per relevant portion of the Award, (Annexure P2) order of priority to be considered for employment from amongst those who have been affected by the project is as under:-
"1. The persons who have been recorded completely landless.::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 10
2. The persons who are left with land holding for less than 5 bighas.
3. The persons whose business is served completely and do not have any other alternative to earn their livelihood.
.
4. Others affected by this acquisition subject to verification of their overall financial position."
12. Similarly, a perusal of extract from the Minutes of the Meeting of Board of Directors dated 27.11.1991, Annexure of P3, will demonstrate that the Board discussed at length and approved the plan for Rehabilitation and Resettlement of rt Persons being displaced due to construction of NJPC as is indicated below:-
"a) To allot developed agricultural land, to each family, who is rendered landless, equivalent to the area acquired or 5 bighas, whichever is less. This 5 bighas would include any land left with the family after acquisition. This would be done only after the certificate of his having become landless is submitted duly signed by Sub-Divisional Magistrate, Rampur.
b) To provide a house with a building up plinth area of 45 sqm. to each landless family whose house is acquired alternatively to pay Rs. 45,000/- to each landless family, whose house is acquired, and constructs his house at his own cost, with a plinth area of 45 sqm. or more. In case of such persons constructs less than 45 sqm. plinth area, then the amount to be given will be worked out in direct proportion to the area of house constructed vis-à-vis Rs. 45,000/- as the cost of 45 sqm. Plinth area.
c) To provide water supply, electricity, street light and approach paths in the rehabilitation colonies at project cost.
d) To provide transportation at project cost for physical mobilization of all the displaced families, as soon as the houses get constructed.::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 11
e) To give preference in allotment of shops in the proposed market to the shopkeepers being displaced from village, Jhakri. The commercial premises/shops allotted to any oustee on preferential basis shall be utilized by the oustee for h is bonafide use only.
.
f) To provide suitable employment to one members of each displaced family according to his capability and qualifications subject to availability of vacancies. However, persons who are allotted shops would not be eligible for benefit of employment and vice-versa.
g) To incur the estimated expenditure of Rs. 184 lacs on rehabilitation (Annexure-VII of the Rehabilitation Plan) of against an adhoc provision of Rs. 18 lacs in Detailed project Report (September, 1986 price level)."
13. Annexure rt P5 is communication dated 7th December, 1999 addressed by Financial Commissioner-cum-
Secretary (Revenue) to the President, Registered Welfare Society, Jhakri, Shimla, as per which the definition of the family as per Item No.1 of State Level Nathpa Jhakri and Baspa Project Relief and Rehabilitation Advisory Committee's meeting held on 16.6.1999 has been mentioned:-
"Family: 'Family' means husband/wife, who is entered as owner/co-owner of land in the revenue record, the children including step or adopted children and includes his/her parents and these 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- of the Land Acquisition Act, 1894.
Provided that only the Panchayat Parivar Register entry, as it stood on the date of Notification of Section4 of Land Acquisition Act, 1894, shall be taken into account for the purpose of 'Separate Family' for rehabilitation benefit i.e. employment in the project."::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 12
14. Now the moot issue is as to whether the petitioner falls within the definition of 'family' as is defined in Annexure P5 .
or not. According to Annexure P5, 'family 'means husband/wife, who is entered as owner/co-owner of land in the revenue record, children including step or adopted children and includes his/her parents and these brothers and sisters who are of living jointly with him/her as per entries of Panchayat Pariwar Register as per Notification of Section 4 of the Land Acquisition rt Act, 1894 (in short 'Act'). It is further stated therein that only the Panchayat Pariwar Register entry as it stood on the date of Notification of Section 4 shall be taken into account for the purpose of separate family for rehabilitation benefits that is employment in the project.
15. Now it is necessary to take note of the fact as to whether the petitioner was registered as 'separate family' in the Panchayat Pariwar Register as it stood on the date of Notification of Section 4 under the Act. In the present case as per averments made in para 2 of the petition, the land in ownership and possession of the petitioner was acquired by respondents No.1 and 2 in the year 1991 for the construction of residential colony for the employees of the project. Thus, according to the petitioner, her land was acquired in the year ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 13 1991. Though, the date of issuance of Notification under Section 4 of Act is not given but broadly, let us see as to .
whether the petitioner is registered in the Panchayat Pariwar Register as a separate family or not even in the year 1991 when her land was acquired.
16. It is the case of the petitioner herself that she was of married in the year 1987. She has appended on record copy of Pariwar Register of Gram Panchayat, Dhar Gaura for the year rt 1985-86, in which her name is also mentioned and her year of birth is given as 1968. It is further her case that after her marriage in the year 1987, her name was deleted from the Pariwar Register of Gram Panchayat, Dhar Gaura and included in the Pariwar Register of her husband's family at Gram Panchayat Sargha, District Kullu, as was evident from Annexure P10. Further case of the petitioner is that after residing with her husband, she returned back to village Jhakri in the year 1989 with the intention to educate her children.
According to her, the factum of her residing independently either of her parental family or her husband's family is confirmed from the Pariwar Register of Jhakri, Gram Panchayat, Dhar Gaura for the year 1998. Annexure P12 is a ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 14 copy of Pariwar Register of Gram Panchayat Dhar Gaura, Distt Shimla pertaining to the year 1998. The petitioner has not .
produced any document on record to demonstrate that her name was registered as a separate family unit in the Pariwar Register of Gram Panchayat Dhar Gaura as in the year 1991 that is the year in which her land was acquired for the purpose of of project by the respondent-Company. This Court is not oblivious to the fact that Annexure P5 has been issued on 7th December, rt 1999. However, it still remains a fact that it is categorically mentioned in letter dated 7.12.1999 that only the Panchayat Pariwar Register entry, as it stood on the date of issuance of Notification under Section 4 of the Act, 1894 shall be taken into account for the purpose of separate family for rehabilitation benefit i.e. employment in the project. Because it is the case of the petitioner that her land was acquired in the year 1991 and in the absence of their being anything on record to demonstrate as to what is the date of issuance of Notification under Section 4 of the Act, this Court is assuming that the Notification was issued somewhere in the year 1991 or earlier. However, the fact of the matter remains that the petitioner has not produced even an iota of material on record to demonstrate that either ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 15 before 1991 or during the year 1991 her name was registered as a separate family in the Pariwar Register of Gram .
Pancyayat, Dhar Gaura.
17. Rule-21 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997 deals with Pariwar Register and registration of births, deaths and marriages. The said Rule of reads as under:-
21. Pariwar Register and registration of births, deaths and marriages.-
rt (1) After the Government has established a Sabha by a notification under sub-
section(1) of section 3, a Pariwar Register shall be prepared for every Gram Sabha in Form-19 appended to these rules. It shall contain the names and particulars of all persons, family- wise, who are the bonafide residents of the village which forms part of the Sabha area. The register shall be prepared by the Panchayat Secretary and shall be verified by the Panchayat Inspector of the concerned Block.
(2) At the close of each calendar year, the entries in the Pariwar Register, required to be prepared under sub-rule(1) shall be revised and all entries pertaining to births, deaths and marriages shall be made in the register which had taken place during the preceding year i.e. up to the 31st day of December. No other addition or alternation may be made without any ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 16 authenticated evidence or certificate of the member of concerned constituency of the Gram Panchayat. In the event of division of the family, .
separation of family may only be entered in the Pariwar Register on the decision of the Gram Sabha by passing a resolution by majority in its general or special meeting on an application made by the head of family concerned. However, the Gram Sabha shall take into consideration the of definition of the family as defined under clause (13-A) of section 2 of the Act while deciding the matter regarding division of family.
(3) The register shall be revised and brought rt upto-date under sub rule (2) by 31st January of each year and public notice will be issued to the effect that -
(a) the register has been revised and brought upto-date under sub rule(2);
(b) the register, as revised, is available for public inspection for a period of fifteen days(excepting the public holidays) between 10 AM to 5 PM in the office of the Gram Panchayat ;
(c) if any person has to make any objection with regard to any entry or any omission in the register, he may make the objection to that effect to the Secretary of the Gram Panchayat within the said period of fifteen days. The notice shall be pasted in the office of the Gram Panchayat and other conspicuous places in a Gram Sabha area. (4) The revised entries made in the register under sub-rule(2) and the objections received under sub-rule(3), shall be taken into ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 17 consideration and disposed off and verified by the Panchayat Inspector after having given an opportunity of being heard to the person(s) .
concerned.
(5) The Secretary of the Gram Panchayat shall undertake registration of births and deaths in accordance with the provisions of the Registration of Births and Death Act, 1969 and rules made thereunder.
of (6) The officer or employee of the Gram Panchayat, appointed as Registrar of Marriages, shall undertake registration of marriages in accordance with the provisions of the Himachal rt Pradesh Registration of Marriages Act, 1996 and the Himachal Pradesh Registration of Marriages Rules, 2004."
18. A perusal of the said Rule demonstrates that there is a detailed procedure laid down with regard to the entries to be made in the Parivar Register which is to be maintained in the Panchayat and how said register is to be revised.
19. Rule-21 of the Panchayati Raj Act deals with the maintenance and revision of Parivar Registers by the Panchayat. There is a detailed procedure laid down in the said Rule as to how revision has to be made in the Parivar Register.
Rule 21(2) provides that in the event of division of the family, separation of family may only be entered in the Parivar Register ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 18 on the decision of the Gram Sabha by passing a resolution by majority in its general or special meeting on an application .
made by the head of family concerned. It is further mentioned that it shall be the duty of the Panchayat Inspector to verify these entries after satisfying himself about the reasons recorded by the Panchayat Secretary. He shall also put his of initials on the goshwara prepared by Panchayat Secretary on Form 19-A. Rule 21(3) envisages that the register shall be rt revised and brought upto-date under sub rule (2) by 31st January of each year.
20. A perusal of the said provision makes it amply clear that revision of Parivar Register is a cumbersome process and the same is undertaken by complying with the procedural formalities which are envisaged in the Rules mentioned above.
Therefore, the only prudent conclusion which can be drawn with regard to a family being treated as separate family as per the said Rules is that a family can be treated as a separate family only after it is duly entered as such in Parivar Register after complying with all the procedural formalities contemplated in Rule 21 (supra).
::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 1921. In my considered view though the definition of family has been amended on 7th December, 1999, however, the .
fact still remains that the entries in the Panchayat Pariwar Register are to be taken as they stood on the date of issuance of Notification Section 4 of the Act for the purpose of separate family, meaning thereby that after 7th December, 1999, though of now the word 'family' was to be interpreted in the manner in which it is contemplated in this communication, however, still in rt order to identify as to how actually were entered as separate family in the Panchayat Pariwar Register, the relevant date for that is not 7th December, 1999 but the date of issuance of Notification under Section 4 of the Act.
22. A perusal of the impugned order issued by respondent No. 3 will demonstrate that this order has been passed by assuming that the relevant date on which a person is to be identified as separate family as envisaged in communication dated 7.12.1999 is the date when the relevant meeting was held i.e. 16.6.1999. In my considered view respondent No.3 has erred in coming to this conclusion. The said authority has failed to appreciate that vide communication dated 7.12.1999, though the definition of term family had been ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 20 modified, however, it still remains a fact that it was clearly mentioned in this Notification that only the Panchayat Pariwar .
Register as it stood on the date of Notification of Section 4 under the Act shall be taken into account for the purpose of separate family for rehabilitation etc. including employment in the project. Therefore, the impugned order passed by of respondent No.3, though is not liable to be set aside on the grounds taken by the petitioner, however, the same is liable to rt be set aside on the ground that the said authority has failed to appreciate that the relevant date for the purpose of identifying as to whether a family is entitled for rehabilitation benefit is not 16.6.1999 but the date of issuance of Notification under Section 4 of the Act. Therefore, on this count, the impugned order passed by respondent No.3 i.e. Annexure P8 dated 23.6.2007 is quashed and set aside.
23. However, the fact of matter still remains that yet it cannot be deciphered as to whether the petitioner is entitled for the benefits under the Scheme or not. For this it is necessary to find out as to what was her status as on the date when the Notification under Section 4 of the Act was issued on the basis of which her land was acquired by respondents No.1 and 2.
::: Downloaded on - 15/04/2017 20:29:53 :::HCHP 21In this view of the matter the present writ petition is disposed of by setting aside the impugned order passed by .
respondent No.3, Annexure P8, with further direction to the said respondent to provide an opportunity to the petitioner to prove her status as to whether she falls within the definition of 'separate family' as envisaged in communication dated of 7.12.1999 as on the date when Notification was issued under Section 4 of the Land Acquisition Act on the basis of which land belonging to her share was actually acquired by respondents No.1 rt and 2. This exercise shall be completed by respondent No.3 positively on or before 30.9.2016 and incase the petitioner is found to be falling within the definition of 'separate family' as on the date when the Notification under Section 4 of the Act was issued then necessary benefits be conferred upon her within a further period of three months. With the said observations, the petition is partly allowed and disposed of in above terms, so also pending application(s), if any. No order as to cost.
(Ajay Mohan Goel) Judge 1st June, 2016.
(Guleria) ::: Downloaded on - 15/04/2017 20:29:53 :::HCHP