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2008 DIGILAW 1298 (JHR)

Shefali Bala Devya v. Bharat Coking Coal Ltd.

2008-11-20

D.G.R.PATNAIK

body2008
JUDGMENT : Petitioner in this writ application has prayed for quashing the letter dated 16.06.2005 (Annexure-9) whereby the respondent authorities had rejected the request of the petitioner No. 2 for his appointment under the respondents against acquisition of land of the petitioners in Mouza Kunji. A corresponding prayer has also been made for issuing a direction upon the respondents to appoint the petitioner No. 2 in terms of the understanding pursuant to the negotiations dated 13.01.1994 (Annexure-1) and the agreement dated 09.04.1995 (Annexure-2) under which, the respondent B.C.C.L. had agreed to grant 7 employments in lieu of acquisition of 13.04 acres of land. 2. The case of the petitioner is that altogether 13.04 acres of Raiyati lands were acquired by the B.C.C.L. Pursuant to the negotiations and in terms of the agreement (Annexure-2) entered into between the respondent B.C.C.L. and the land holders, 7 employments were to be provided by way of compensatory benefits for the acquisition of land though no monetary compensation would be given to the land losers. Accordingly, the assessment of age and other aspects of 7 persons of the family of the land holders was made by the Medical Board. The age of the father of the petitioner No. 2 namely Madhvanand Dubey, was assessed at 39 years. While the remaining six persons were granted employment, the father of the petitioner No. 2 was not given such employment on the ground of his being over age, though on the assurance that his son would be given employment. Since the son namely the petitioner No. 2 at the relevant time was a minor, assurance was given vide Annexure-5 that appointment would be given to him on his attaining the age of 18 years. After attaining the age of majority, the petitioner No. 2 had placed his request for granting him employment. After delaying the matter for considerable period, the respondent authorities, by their impugned letter dated 16.06.2005 (Annexure-9), rejected the request of the petitioner No. 2. After attaining the age of majority, the petitioner No. 2 had placed his request for granting him employment. After delaying the matter for considerable period, the respondent authorities, by their impugned letter dated 16.06.2005 (Annexure-9), rejected the request of the petitioner No. 2. The claim of the petitioner is that the total area of 1.71 acres of land belonging to the petitioner comprising in various plots situated under Khata No. 106 within the village Kunji under the district of Dhanbad, was acquired by the respondent B.C.C.L. and the possession thereof was also taken over by the B.C.C.L. way back in the year 1995-96 but no employment was given to the petitioner No. 2 while the other six appointees have already availed the benefits of such employment under the B.C.C.L. 3. A counter affidavit has been filed on behalf of the respondent B.C.C.L. While admitting the fact that the lands belonging to the petitioners was acquired and the possession thereof was taken over by the B.C.C.L. although no monetary compensation was paid to the petitioners for such acquisition, the stand taken by the respondent B.C.C.L. is that the B.C.C.L. had utilized only 48 and ½ decimals of land of the petitioners and since according to the recent policy of the year 2005 of the B.C.C.L., employment can be given only against acquisition of minimum of two acres of land, the petitioners are not entitled to any employment against only 48 and ½ decimals of their land. 4. The petitioners have countered the stand of the respondent on the ground that the B.C.C.L. had taken over possession of 1.71 acres of land way back in the year 1995-96 and under the terms of the original agreement, there was no stipulation that employment would be granted only against a minimum limited area of land acquired. The purported policy of the respondents B.C.C.L. was introduced for the first time in the year 2005 and therefore, it cannot be made effective retrospectively. The further contention of the petitioners is that such stand of the respondent B.C.C.L. is arbitrary and discriminatory in as much as out of the six other persons who were granted employment against the acquisition of their lands, the lands belonging to two persons namely Neelkanth Dubey and Sunil Kumar Tiwari and utilized by the B.C.C.L. was only 18 decimals. The further contention of the petitioners is that such stand of the respondent B.C.C.L. is arbitrary and discriminatory in as much as out of the six other persons who were granted employment against the acquisition of their lands, the lands belonging to two persons namely Neelkanth Dubey and Sunil Kumar Tiwari and utilized by the B.C.C.L. was only 18 decimals. It is further argued that the criteria of acquisition of minimum of two acres of land would not apply to the case of the petitioners for a further reason that such criteria would be applicable only where monetary compensation is also provided and not in cases like the present case where no monetary compensation was paid. 5. Learned counsel for the respondents while reiterating the stand of the respondents, explains that though initially the management of the old Mahuda Colliery Area had requested for acquisition of 13.04 acres of land of Mauza Kunji in the year 1992 but the Land Acquisition Department had processed only 10.39 acres of land leaving the remaining land recorded as government land. The management of the Old Mahuda Colliery Area had obtained approval for 7 employments against the proposed acquisition of 13.04 acres of land. Thus, employments were released to the prospective land losers. The seventh sanctioned employment could not be released on account of the fact that the nominee of Madhavanand Dubey who was the son-in-law of the petitioner No. 1 was found to be more than 35 years of age at the relevant time. The petitioner No. 1 nominated her grand son namely the petitioner No. 2 in replacement of the earlier nomination. While this was so, the proposed work at the Old Mahuda Colliery Area of Mauza Kunji was abandoned on account of geological disturbance. Consequently, the land acquisition proceedings were dropped. Thus, the Old Mahuda Area had retained only 3.77 acres of land. Out of this, only 1.71 acres of land belonged to the land losers and again out of this, a total area of 0.48 acres of land only, belonged to the husband of petitioner No. 1. It is further stated that though under the original terms of agreement, one employment was offered to the husband of the petitioner No. 1 but consequent upon the revision of the policy by the Chairman, Coal India Limited, the provision for employment against acquisition of land has been finally scrapped. It is further stated that though under the original terms of agreement, one employment was offered to the husband of the petitioner No. 1 but consequent upon the revision of the policy by the Chairman, Coal India Limited, the provision for employment against acquisition of land has been finally scrapped. Learned counsel for the respondents submits that the respondent B.C.C.L. is thus not in possession of any land belonging to the petitioner beyond 0.48½ acres and in the light of the above circumstances, the petitioners are not entitled to claim any employment even under the terms of agreement and at best they may be entitled for compensation for their lands for which they may approach the Civil Court. In support of his contentions, learned counsel refers to and relies upon the judgements of this Court passed in the case of Hazi Md. Hanif Ansari & Others Vs. The Chief Managing Director, B.C.C.L., Dhanbad (W.P.(C) No. 5545 of 2006) and the judgement in the case of Gunendra Nath Mistri Vs. B.C.C.L., 2006 Vol. 1 JCR page 414 (Jhr) and on the judgement of the Supreme Court in the case of Butu Prasad Kumbhar & Others Vs. Steel Authority of India Ltd & Others 1995 Vol. 2 (Suppl.) SCC page 225. 6. From the perusal of the agreement (Annexure-2), the execution of which has been admitted by the respondent B.C.C.L., it transpires that the B.C.C.L. being the second party in the agreement, had acknowledged that it has taken possession of a total area of 10.20½ acres of land which formerly belonged to the predecessors of the petitioners and their agnates. Against the acquisition of 10.20½ acres of land, the B.C.C.L. had agreed to provide employment to 7 members of the family of the land losers. The petitioner No. 1 was one of the members and signatory to the agreement as a member of the first party. Pursuant to the agreement, names of 7 members of the family for the proposed employment were nominated. Out of the 7 nominees, six were granted employment by the B.C.C.L. in terms of the agreement. The petitioner No. 1 was one of the members and signatory to the agreement as a member of the first party. Pursuant to the agreement, names of 7 members of the family for the proposed employment were nominated. Out of the 7 nominees, six were granted employment by the B.C.C.L. in terms of the agreement. It is relevant to note here that under the terms of agreement, the land losers had neither claimed any monetary compensation nor did the B.C.C.L. ever offer any monetary compensation against the acquisition of their lands and instead of monetary compensation, the agreed terms was that the respondent B.C.C.L. would provide seven employments. Admittedly, the petitioner No. 1 being a widow, had initially nominated her son-in-law, but employment to him was refused on the ground of his being over age. A substituted nomination in favour of the grand son of the petitioner No. 1 namely the petitioner No. 2 was submitted by the petitioner No. 1. By Annexure-5 dated 01.06.1996, an assurance appears to have been given by the respondents to the petitioner No. 1 that appointment to her grand son would be granted on his attaining the age of majority. A further declaration was made that on account of the assurance for employment, the B.C.C.L. would not consider payment of any monetary compensation against the land acquired. On receipt of the substituted nomination made in favour of the petitioner No. 2, the concerned authorities of the B.C.C.L. had also obtained the requisite indemnity-cum-undertaking-cum-guarantee declaration bond from the petitioner No. 1 by way of requisite legal formalities preceding the grant of employment. Furthermore, it is not denied by the respondents that employment to two of the nominees namely Neelkanth Dubey and Sunil Kumar Tiwari was given way back in the year 1996 in spite of the fact that the lands pertaining to their share which was utilized by the B.C.C.L. was only 18 decimals each. 7. It is apparent from the above facts that on the date when the agreement was executed between the land losers and the B.C.C.L. for providing employment to seven persons of the family of the land losers, there was no stipulation nor any such policy which could dictate that employment could be given only against acquisition of a minimum area of two acres of land. Such policy was introduced for the first time in the year 2005, as acknowledged by the respondent B.C.C.L. 8. Having already declared in the agreement (Annexure-2) that it has already taken possession of 10.20½ acres of land of the land losers including the share of the petitioner No. 1 and in absence of any declaration from the side of the respondent B.C.C.L. that they have released any portion of the lands to the land losers after retaining and utilizing only a part of the acquired lands, it has to be deemed that the B.C.C.L. is in continuous occupation and possession of the 10.20½ acres of land earlier acquired in the year 1996. The plea taken by the respondent B.C.C.L. that since it has retained only 0.48½ acres of land of the petitioners, it is not bound to provide employment in view of the revised policy of the B.C.C.L., is, in my opinion, totally unjustified not only in view of the fact that under the terms of original agreement the B.C.C.L. had given its own undertaking to provide employment to the nominee of the petitioner No. 1 but also on account of the fact that against the acquisition of such lands belonging to the petitioner No. 1, no monetary compensation was ever paid to her and neither has the lands been released in favour of the petitioner. 9. Though learned counsel for the respondents has referred to the judgement of this Court in the case of Hazi Md. Hanif Ansari and to the judgement in the case of Gunendra Nath Mistri but neither of the judgements apply in the facts and circumstances of the present case. In both the above referred cases, the facts indicate that the land losers were paid monetary compensation and having received such compensation, it was held that the land losers did not retain any further right to claim employment. In the case of Butu Prasad Kumbhar (Supra) also the facts indicate that the land losers were paid monetary compensation as a consequence of their displacement. Even in the case of Butu Prasad Kumbhar (Supra), the facts indicated that at least one person of every displaced family whose land was acquired, has been given employment and therefore, the letter and spirit of the scheme to accommodate the displaced persons stood satisfied. 10. Even in the case of Butu Prasad Kumbhar (Supra), the facts indicated that at least one person of every displaced family whose land was acquired, has been given employment and therefore, the letter and spirit of the scheme to accommodate the displaced persons stood satisfied. 10. In the instant case, as observed above, no monetary compensation was given to any of the land losers, although each of the nominated persons to whom the employment was given in the year 1996 belonged to a separate and distinct family, the petitioner No. 1 who by her status and position also constituted a displaced family, has not been given such employment nor has she been paid any compensation for her land which has been acquired by the respondent B.C.C.L. It is also to be noted that the nomination of the petitioner No. 2 for his employment was submitted by the petitioner No. 1 some time in the year 1997 i.e. about 10 months after the commitment by the respondent authorities of the B.C.C.L. was given to the petitioner No. 1 by their letter dated 01.06.1996 (Annexure-5). The process of submitting of the requisite documents by way of legal formalities, as per the demand of the respondent authorities of the B.C.C.L. from time to time, was completed by 25.10.2000. Yet, the petitioners’ claim continued to remain pending final decision even though several representations along with recommendations of the registered Trade Unions were submitted by the petitioners to the concerned authorities of the respondent B.C.C.L. After having delayed in finalizing the decision for grant of employment to the petitioner No. 2 in accordance with their earlier commitment, the respondents have now taken the stand of denial by retracting from their commitment and denying employment to the nominee of petitioner No. 1 by taking advantage of the revised policy of the C.I.L. of 2005. This, despite the fact that out of the six employments already granted, the lands belonging to two such employees and utilized by the B.C.C.L. was only 18 decimals. In my opinion, after having deprived the petitioners of the benefits of their land for more than 12 years, the respondent B.C.C.L. cannot now turn back on its commitment and declare that the petitioners are at best entitled to monetary compensation for which they should knock the doors of the Civil Court. 11. For the reasons discussed above, I find merit in this application. 11. For the reasons discussed above, I find merit in this application. Accordingly, this writ application is allowed. The impugned order dated 16.06.2005 (Annexure-9) is hereby set aside. The respondent B.C.C.L. is directed to offer employment to the nominee of petitioner No. 1 on any post commensurate with his qualifications, within three months from the date of this order.