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2000 DIGILAW 226 (CAL)

Seikh Aminuddin v. Indian Oil Corporation Ltd.

2000-05-03

BARIN GHOSH

body2000
JUDGMENT Petitioner No.1 is the ex-owner of a piece of cultivable land measuring about 15 cottahs. There is no dispute that the said plot of land was acquired on the request of Indian Oil Corporation Ltd. for the purpose of expanding its bottling plant at Budge Budge. There is also no dispute that while the said plot of land of the petitioner No.1 was acquired, lands belonging to others in the vicinity were also acquired for the self-same purpose. There is no dispute that such acquisitions have been made in terms of and upon duly complying with the provisions contained in the Land Acquisition Act, 1948. It has been suggested in the petition that Indian Oil Corporation Ltd. as well as the Stated respondents held out that Indian Oil Corporation Ltd. shall provide employment to the family members of the land losers subject to certain conditions as regards age, educational qualification, etc. it is the grievance of the petitioners that in breach of such promise or holding out no employment has been given to the petitioner No. I or to any of his family members, but employments have been given to other land losers or their family members and hence this writ petition. 2. Indian Oil Corporation Ltd. is an authority within the meaning of Article 12 of the Constitution of India. It is a Government Company within the meaning of the Companies Act, 1956. There is no dispute that it is a public enterprise. Being an authority within the meaning of Article 12 of the Constitution of India, it is bound to adhere to the provisions of the 'Constitution in so far as the same relate to fundamental right. 3. In the matter of appointments there cannot be any discrimination thus says Articles 14 and 16 of the Constitution of India, which guarantee equality in relation thereto as a fundamental right. Indian Oil Corporation Ltd., therefore, in the matter of giving appointment cannot discriminate. There being no dispute that the lands in question were acquired upon complying with the provisions contained in the. Land Acquisition Act, 1948 and there being no mandate in the said Act to give appointment by an instrumentality of a State by while acquiring any type of land by way of compensation or otherwise, I called upon the respondents to file affidavits to state as to on which policy these appointments were promised. Land Acquisition Act, 1948 and there being no mandate in the said Act to give appointment by an instrumentality of a State by while acquiring any type of land by way of compensation or otherwise, I called upon the respondents to file affidavits to state as to on which policy these appointments were promised. The Indian Oil Corporation Ltd. has not filed any affidavit but the State-respondents have. In that it has been stated that a rehabilitation package was formed by the State Government in consultation with the Indian Oil Corporation Ltd. so as to minimise the chance of litigation by aggrieved people or by the land losers and that rehabilitation package, inter alia, provided that the land losers or their family members should get priority in recruitment to be made by the Indian Oil Corporation Ltd. provided the person to be recruited meets the necessary criteria laid down by the Indian Oil Corporation Ltd. as to age, qualification etc. In this connection reference was made to a letter of the District Magistrate of the concerned District addressed to the Deputy General Manager, Indian Oil Corporation Ltd. with copies to Special Secretary, Commerce and Industries Department and to Additional District Magistrate (Development) of the concerned District. In that it was stated that in addition to compensation payable under the Land Acquisition Act, 1948, Indian Oil Corporation Ltd. is to take a practical view of all the aspects involved in the process of acquisition of land and accordingly a rehabilitation package is required to be propounded to minimise the chances of litigation by aggrieved people and also for pre-empting any antagonistic stand of the land losers which may adversely affect the project. The rehabilitation package wasthel1 proposed. In that it was, inter alia, contended that preference may be given to the members of the land losing families for enrolling their names in the nearest Employment Exchange and the Indian. Oil Corporation Ltd. should give priority to such enrolled persons while making recruitments as per the qualification/other requirement to be determined by the Indian Oil Corporation. It was then added that by following the' procedure as suggested in the said rehabilitation package local problems have been minimised and the time schedule of the concerned project has been adhered to. Oil Corporation Ltd. should give priority to such enrolled persons while making recruitments as per the qualification/other requirement to be determined by the Indian Oil Corporation. It was then added that by following the' procedure as suggested in the said rehabilitation package local problems have been minimised and the time schedule of the concerned project has been adhered to. It appears that such proposals were accepted by the Indian Oil Corporation Ltd., and by a letter dated 10th December, 19S3 it confirmed to the District Magistrate of the concerned District that preference will be given to land losers for employment as per requirements of Indian Oil Corporation Ltd., provided the land losers fulfilled certain criterias mentioned in the said letter. The criterias, as were mentioned, provide, inter alia, that the name of the land loser must be enrolled in the Employment Exchange and their list should be authenticated by the District Magistrate of the concerned District and such land losers should meet eligibility norms of age, relaxation may be given for them, qualification for which no relaxation shall be given and experience. It further appears that subsequent thereto Indian Oil Corporation Ltd., distributed hand bills reiterating the above. It further appears that the Joint Secretary to the Government of West Bengal also gave blessings to the said arrangements made by the District Magistrate of the concerned District with the Indian Oil Corporation Ltd. He, however, stated that only one member of the uprooted/affected family shall be eligible for a job. 4. In the said affidavit it has further been mentioned that each land loser at the time of payment of compensation was served with a proforma of application for employment and such proforma was required to be submitted within 15th May, 1998 but the petitioners did not submit any such proforma, and instead submit an application dated 2nd March, 1999, on 10th March, 1999 and accordingly, the petitioners' claim for the job is barred by limitation. 5. The first and foremost question that is required to be considered in the instant case as to whether such an agreement said to have been made between the State of West Bengal and the Indian Oil Corporation. Ltd. is at all legal. 5. The first and foremost question that is required to be considered in the instant case as to whether such an agreement said to have been made between the State of West Bengal and the Indian Oil Corporation. Ltd. is at all legal. It is to be mentioned here that the proposal for the rehabilitation package which emanated from the District Magistrate of the concerned District was not made in the name of or for and on behalf of the Governor of the State of West Bengal. Accordingly, acceptance of such a proposal by the Indian Oil Corporation Ltd. cannot be said to be an agreement between the State of West Bengal and the Indian Oil Corporation Ltd. Assuming that the proposal emanated from the Governor of the State and was accepted by the Indian Oil Corporation Ltd., can it be said that the arrangement so made is legal? 6. Right to property is not a fundamental right of any citizen of this country. Although the Constitution guarantees right to property though not by way of fundamental right, but makes it clear that a citizen may be deprived of such right by adoption of the procedure established by law. In the instant case, the petitioners and the persons similar1y situate that of the petitioners were deprived of their right to possess the lands in question by the procedure adopted by and laid down in the Land Acquisition Act, 1948. It is nobody's case that the Land Acquisition Act, 1948 is ultra vires. Therefore, it cannot be contended that the procedure so laid down in the said Act is not a procedure established by law. The procedure so laid down in the said Act compels an unwilling citizen to sell his land required for a public purpose. It provides what should be the consideration for such sale. It says that the compensation shall be the price of the land a citizen has been compelled to sell. It further says that since the citizen has been so compelled he must be paid solicium. The procedure in the said Act is such that payment of compensation may take some time and accordingly the same has been taken care of by providing payment of interest. In addition to that no other form of compensation is contemplated in the procedure so established by the said Act. The procedure in the said Act is such that payment of compensation may take some time and accordingly the same has been taken care of by providing payment of interest. In addition to that no other form of compensation is contemplated in the procedure so established by the said Act. Once a procedure has been established by law to deprive a citizen of his right to property, nothing more to that can be added. If any such thing is added, the same would be extraneous to the procedure so established by law and if the same tant-amounts to a dole from the end of the State or an instrumentality of the State, such a dole can always be questioned on the touchstone of Articles 14 and 16 of the Constitution of India. 7. As aforesaid in the affidavit-in-opposition the dole in the form of preferential appointment was sought to be given to the laid losers in order to avoid litigation. On the apprehended litigation to be initiated by someone, he cannot be treated as a separate class to circumvent Articles 14 and 16 of the Constitution of India and if such classification is made, the same is bad. 8. It may be that upon acquisition of the subject land the petitioners, if they were cultivators, may have lost their employment opportunity and accordingly it may be argued, although no such argument was advanced before me, that they have lost their means of livelihood and accordingly the petitioners and persons similarly situate that of the petitioners may be classified as a separate class. 9. There cannot be any dispute that in this country public appointments are insignificantly few in comparison to unemployment. Because per chance land belonging to a person has not been acquired, he would not get a preferential treatment in the matter of public appointment but land belonging to his next door neighbour has been acquired, again per chance, for a public purpose and accordingly the next door neighbour would get a preferential treatment in the matter of getting a public appointment, would that be reasonable? Then again once a citizen has been deprived of his right to property upon following the procedure established by law, if he is treated as a class in the matter of getting public appointment, without the procedure so established by law providing for the same, the same would be nothing but a machination to circumvent Articles 14 and 16 of the Constitution. 10. The last question is whether such right can be founded on Article 21 of the Constitution of India. This aspect of the matter was considered by the Supreme' Court in (1) Butu Prasad Kumbhar v. Steel Authority of India Ltd. reported in 1995 Supp (2) SCC 225. In that case land was acquired for establishing Rourkela Plant of the Steel Authority of India Ltd. The State Government and the Central Government both decided that each family of the land loser would be protected by giving employment to at least one member of such family in the said plant. The petitioners before the Supreme Court contended that each member of the family of the land loser must be given appointment and such claim was founded on Article 21 of the Constitution. While negativing the said claim, the Supreme Court observed "Even if the Government or the steel plant had not offered any employment to any person it would not have resulted in violation of any fundamental right." This observation was founded on the observation of the Supreme Court made in the self-same judgment to the effect "Even otherwise, the obligation of the State to ensure that no citizen is deprived of his livelihood does not extend to providing employment to every member of each family displaced in consequence of acquisition of land." In other words, the Supreme Court said that if a citizen has been deprived of his right to land upon following the procedure established by law, the State acquires no obligation to ensure that such a citizen is employed. 11. In view of what has been held above, I hold that the promise made by the Indian Oil Corporation Ltd. to give employment to a member of the family of a land loser on the request of the Government of West Bengal being contrary to Articles 14 and 16 of the Constitution of India, is illegal and accordingly unenforceable. The writ petition is thus dismissed. 12. The writ petition is thus dismissed. 12. Despite the above declaration I have not touched those who have been given employment on the basis of such promise as their appointments have not been challenged in the instant writ petition. I, however, direct the State Government not to indulge in future to give preferential appointment to a land loser or to compel an instrumentality of the State or the Central Government to give such appointment. The writ petition is thus disposed of without any order as to costs. Let urgent xerox certified copies of this judgment, if applied for, be delivered to the learned Advocates for the parties.