Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 2050 (PNJ)

Dharam Singh v. State Of Punjab

2009-11-26

PERMOD KOHLI

body2009
Judgment Permod Kohli, J. 1. This is the 4th round of litigation by the petitioners belonging to State of Jammu & Kashmir who lost their lands, homes and hearths for the development of the States of Punjab, Himachal Pradesh and Jammu & Kashmir. They are clamouring for justice by repeated writ petitioners before this Court, but the unfair approach of the respondents and the procedural wrangles kept them away from justice it is unfortunate that those person who were made to surrender their lands/homes hearths and displaced from their properties under the State whip on compulsory acquisition of land are moving from post to pillar for seeking their legitimate rights and fulfilment of assurances of the almighty State machinery. Three states, namely, Punjab, Jammu & Kashmir and Himachal Pradesh extended their hands of construction of prestigious Dam of storage of water and hydro power generation of the common welfare of the three States. Land comprising or three States was identified of establishment of the project. Consequently, the three Chief Executives of the States i.e. the Chief Minister entered into an agreement on 20.1.1979 vide Annexure P-7 for acquisition of land and construction of Dam thereafter. They also decided the fate of land owners incorporating various conditions said to be of their welfare and interest. It was decided that besides the payment of land compensation, the oustees of the land shall be rehabilitate. One of the conditions of rehabilitation was even for employment to at least one member of the ousted family. The share of the State of Jammu & Kashmir in the power generated from the project was 20%. The relevant Clauses of the agreement (Annexure P-7) are reproduced here-in-below :- "Whereas the Village, families, houses, shops, cultivated land, uncultivated areas etc., likely to be effected by the construction of Thein Dam Project as already accepted, are to be duty compensated and rehabilitated with a view to better their prospects.... 3. The persons affected by the Dam area and other areas acquired for the Project shall in addition to the payment of compensation due under the laws of the States concerned be rehabilitated on lands of alternate avocations so as to better their future prospects to achieve the aforesaid object a Joint Committee of officers of two State Governments headed by the Chief Secretary shall be constituted keeping in view the experience gain in Pong Dam Oustees in Himachal Pradesh. The entire cost of compensation payable under the law and the cost of the rehabilitation shall be debited to the Thein Dam Project. 7. The Jammu & Kashmir Government shall get a share of 20 percent in the total power generated at the Thein Dam and Shahpurkandi Barrage at cost of generation at busbars provided if the Jammu and Kashmir Government territory or is otherwise desirous of selling the same, the surplus power shall be sold to the Government at a mutually agreed rate. A separated agreement shall be drawn up for such sale of un-untilize power by the Jammu and Kashmir Government with the Punjab Government which shall provide for a periodic review of the selling rate. In case, however, the Punjab Government at any time is not desirous to purchase the said surplus power in whole or in part then the Jammu and Kashmir Government shall be at liberty to sell such power elsewhere..... 9.15 percent of the entire personal required both for irrigation and power side construction and operation of Thein Dam Project in all categories shall be taken from Jammu and Kashmir State orders, subject to actual availability. 10. The construction and operation of Thein Dam Project shall be responsibility of Punjab Government the Jammu and Kashmir State shall be given representation on the Advisory Board/Committee both on the irrigation side as well as power side which may be constituted for construction of Thein Dam. 12. With a view to providing immediate employment opportunities to the displaced persons from the Thein Dam Projects at various levels shall give a preference in matters of employment of such persons. From the afore-extracted conditions contained in the agreement, it appears that both the States agreed for the rehabilitation of the families/persons of the Villages whose lands/houses/shops etc., were to be taken over for the construction of the Project. The oustees were to be rehabilitated besides payment of compensation at the costs of the Thein Dam Project. State of Jammu & Kashmir is entitled to only 20% of the total power generation and surplus power, if any, shall be purchased by the State of Jammu & Kashmir, 15 per cent of the entire personnel required both for irrigation and power side construction and operation of Thein Dam Project in all categories shall be taken from Jammu and Kashmir State. The construction and operation of the Thein Dam Project is the responsibility of the Punjab Government with representation to the State of Jammu and Kashmir on the Advisory Board/Committees both on irrigation side as well as on power side. The oustees shall be given preference in matter of employment with a view to provide immediate employment. The aforesaid agreement was followed by another Scheme for rehabilitation for Ranjit Sagar Thein Dam Project for the outsees of Jammu & Kashmir State. One of the conditions of the Scheme was as under :- "3 (vii) Employment to one member of the eligible oustee family would be given on the Project according to his qualifications and available of vacancies on the Project." 2 All the petitioners have been declared as oustees in accordance with the policy. The petitioners applied for their employment. They were interviewed twice for the post of Baildars in the years 1997 & 1998 i.e. from 13.5.1997 onwards and 13.1.1998 ondwards. This fact has been specifically admitted by the respondents in paragraph 6 of the reply which read as under:- " 6 That the contents of para No. 6 are admitted to the extent that interviews held on May, 1997 and Jan. 1998 but these were postponded and finally held on 9/11/1998, 10/11/1998 and 13/11/1998...." 3. It is also the case of the petitioners that 15% quota was meant for oustees of the State of Jammu & Kashmir and posts meant for their quota are lying vacant. In response to this allegation, following averments have been made in para No. 6 of the reply by the respondents :- "6 ........ It is submitted that post against 15% quota is meant for general quota for J&K State, other than dam oustee quota for which 767 number eligible families has been prepared by the Collector, Land and Acquisition Basoli who has acquired to be constructed. Out of 767 number eligible families of J&K State employment to 583 number has since been given. As the work of Dam has already been completed and there is no regular as well as workcharge posts vacant." 4. It is clearly accepted that as against 767 number eligible families of J&K State, employment to 583 number has been given and the petitioners could not be given employment on account of non-availability of the vacant posts. However, the eligibility and entitlement of the petitioners is not in dispute. It is clearly accepted that as against 767 number eligible families of J&K State, employment to 583 number has been given and the petitioners could not be given employment on account of non-availability of the vacant posts. However, the eligibility and entitlement of the petitioners is not in dispute. It appears that on account of non-availability of the vacancies at the Project, the State of Punjab Department of irrigation and power vide its letters dated 8.5.2000 (Annexure P-1) proposed to give employment to the oustees as per their quota in other parts of the State of Punjab and asked for undertakings from the oustees/displaced persons to serve anywhere in the State of Punjab. The relevant extract of the aforesaid communication (Annexure P-1) is as under :- "It has been decided by the Government that each displaced, who is to be given employment will be required to give an undertaking that he is prepared to serve anywhere in the State. Accordingly, before the case is formally taken up for decision. You are requested to get the response/willingness of each applicant to the question. Now the Now the R.S.D. is complete, there are no jobs there and the applicant may send his willingness undertaking that he is prepared to serve anywhere in the State of Punjab. Sd/- Superintendent Dated : 08 May, 2000" 5. The petitioners made specific averments in paragraph 8 of the writ petition that they gave undertaking to serve anywhere in the State of Punjab Based upon the aforesaid undertaking, the Standing Committee of Ranjit Singh Thein Dam Construction Board in its 43rd meeting held on 24.8.2000 vide item No. 43.03 took the decision to give employment to one member of eligible dam Oustees as Class-IV employee. The extract of the decision is reproduced is as under :- "Extract of decision Standing Committee of Ranjit Sagar Dam Construction Board in 43rd meeting held on 24.8.2000 vide item No. 43.03. Employment of Dam Oustees Chief Secretary, Punjab, directed the employment be given to one member of eligible dam oustees as Class-IV employee for which list of willing oustees be sent to Principal Secretary, irrigation & Power, Chandigarah, for employment in department where vacancies exit." 6. The petitioners claim to have approached the respondents through various representations and notices and their Union seeking employment. Receiving no response, the petitioners filed CWP No. 8733 of 2000. The petitioners claim to have approached the respondents through various representations and notices and their Union seeking employment. Receiving no response, the petitioners filed CWP No. 8733 of 2000. On being put to notice, the respondents filed written statement through the Chief Engineer i.e. respondent No. 4. herein who made following statements in para No.10 of the written statement regarding the employment to the petitioners :- "Admitted to the extent that the case for appointment of eligible petitioners is under the active consideration of Punjab Government. The Standing Committee of Ranjit Sagar Dam Construction Board has directed that employment be given to one member of eligible of Dam ouseets as Class IV employees for which list of willing ouseets be sent to Principal Secretary irrigation and Power, Chandigarh for employment in department where vacancies exist. Copy of extract of decision in 43rd meeting held on 24.8.2000 vide item No. 43.03 is enclosed as Annexure R-4". On the basis of the aforesaid reply, the said writ petition came to be disposed of vide order dated 17.12.2002 with the following directions :- On the basis of the aforesaid reply, the said writ petition came to be disposed of vide order dated 17.1.2002 with the following directions :- "In view of the reply filed by the respondents, we dispose of the writ petition with a direction to respondent No. 3 to consider the names of all those petitioners who are eligible and finalize the matter expeditious but not later than months from the date of receipt of a copy of this order. As regards those who have been found ineligible, respondent No. 3 is directed to furnish to them the reasons as to why they are ineligible and the needful will be done within the aforesaid period. Sd/- N.K. Sodhi, Judge Sd/- Jasbir Singh, Judge 17.1.20002" Despite the aforesaid directions, eligible petitioners were not provided any employment nor any of the petitioners was communicated any reason for ineligibility for such employment. The petitioners were constrained to file contempt Petition being COCP No. 756 of 2002. In reply to the contempt notice the respondents took a stand that the State has imposed ban on fresh employment. The respondents also disclosed that the three lists of eligible employment. The petitioners were constrained to file contempt Petition being COCP No. 756 of 2002. In reply to the contempt notice the respondents took a stand that the State has imposed ban on fresh employment. The respondents also disclosed that the three lists of eligible employment. The respondents also disclosed that the three lists of eligible Dam Oustees belonging to States of Punjab, Himachal Pradesh and J&K who have given their willingness for employment in department any other than Punjab irrigation in Punjab States. In the said lists, the names of the petitioners herein who have been found eligible were also disclosed. The said Contempt Petition, however came to be disposed of granting liberty to the petitioners to take appropriate remedy for enforcement of their rights in accordance with law. 7. Having failed to seek the relief, the petitioners were again forced to approach this Court by filing CWP No. 8903 of 2003. The said writ petition was resisted by the respondents-State on the plea that there was complete ban on fresh appointment and the Project stands completed in the year 1998 rendering 7000 workmen surplus and thus the petitioners could not be given the employment. This Court, however, did not accept the contention of the respondents and vide its order dated 1.4.2004 of the writ petition with the following observations :- "In the written statement filed by the respondents the stand taken is that there was complete ban on fresh appointment and as the Project has virtually been completed in 1998 making about 7000 Workmen Surplus, the petitioners could not be given appointment. We find that neither of these who issues can dislodge the petitioners case. Admittedly, the petitioners are the oustees of the Ranjit Sagar Dam Project. They must accordingly be given priority in the appointment over other candidates. We also find that imposition of ban on fresh appointments is only temporary will ultimately be lifted. We accordingly issue a direction that as and when the ban is lifted, the petitioners case alongwith other ouseets, who have a similar claim, will be considered and appropriate orders made. The writ petition is allowed in the above terms. SD/-H.S. Bedi, Judge Sd/- Adrash Kumar Goel, Judge 1.4.2000" In the light of the aforesaid directions, the respondents-States was required to consider the petitioners for employment on the basis of the agreement and the policy decision taken from time to time. The writ petition is allowed in the above terms. SD/-H.S. Bedi, Judge Sd/- Adrash Kumar Goel, Judge 1.4.2000" In the light of the aforesaid directions, the respondents-States was required to consider the petitioners for employment on the basis of the agreement and the policy decision taken from time to time. Unfortunately neither the directions of the Court nor the hue and cry and pathetic conditions of the petitioners became handy to persuade the respondents to acknowledge their legitimate right and provide employment to them. In the meanwhile, the petitioners came to know that the respondent-State has made appointment on Class IV posts vide orders dated 19.7.2004, 28.7.2004 and 10.8.2004 on the Ranjit Sagar Project and other department of the Punjab State. Yet another Contempt Petition being COCP No. 1468 of 2004 was filed in this Court. Intially, the Contempt Court passed following interim orders on 27.5.2005 :- "A grievance of the petitioners is that they are displaced on account of Ranjit Sagar Dam and are entitled to be given preference in the appointments, but they are not being appointed on the ground that there is a ban on appointments. While appointments are being in the category of compassionate appointments. Counsel for the State says that appointments are being made on compassionate basis in respect of heirs of those, who died at the time of construction of Ranjit Sagar Dam. Counsel for the petitioners dispute this and refers to decision of Government dated 21.11.2002 wherein the compassionate appointments are allowed to be made. Counsel for the State seeks time to take instructions that no appointment will be made even on compassionate ground other than out of the ouseets Counsel for the petitioners also seeks time to verify whether any such appointment has been made." List again on 29.8.2005." 8. The respondents filed that reply to the said Contempt Petition and in paragraph 4 of the reply, the respondents made following averments :- "4. That the names of the eligible Dam Oustees were sent to the Deputy Secretary, Re-deployment Cell for providing employment in other departments of Punjab Government." It was further stated that in view of the ban on fresh employment, no employment has been made except on compassionate grounds. The Contempt Petition was, however, disposed of vide order dated 17.4.2007 saying that since only compassionate appointment has been made, no action is called for. The Contempt Petition was, however, disposed of vide order dated 17.4.2007 saying that since only compassionate appointment has been made, no action is called for. Now the petitioners have again approached this Court for redressal of their grievances by filing this petition. 9. On being put to notice, the respondents have filed their reply. From the reply, it is evident that all factual averments made in the writ petition regarding the claim, right and entitlement of petitioners of the petitioners for employment and various orders passed by the court and decisions taken from time to time enumerated in detail here-in-above, have been admitted. The only plea raised by the respondents to deny the employment to the petitioners is ban imposed by the Punjab Government the relevant averments are made in paragraphs 19 and 20 of the reply which reads as under :- "19. That para No. 19 of the writ petition is wrong & incorrect. All the eligible dam oustees will be given employment on priority basis as and when the ban is lifted by the Punjab Govt. Hence, there is no violation of Articles 14 of the Constitution of India. 20. That para No. 20 of the petition is replied in the manner that no doubt the ban was imposed on appointment during the year 2002. The respondents are not denying the employment to the petitioners, but they will be given employment on priority basis as and when the ban is lifted by the Punjab Govt on the availability of Vacancies." 10. The petitioners were displaced more than two decades back. According to the respondents own averments, the Project was completed in the year 1998. The Project was dedicated to the Nation by the then Prime Minister on 4.3.2001. The petitioners have been fighting for justice since 1997-98 i.e. more than a decade now. Despite 4th round of litigation before this Court, no relief could be granted to them. In every round of litigation the respondents assured the employment to the petitioners. Even in the present writ petition, there is an assurance on the part of the respondents to provide employment to the petitioners. No time period has been fixed for the purpose. Admittedly, the ban for fresh appointment was imposed on 10.5.2000 and prior to that when there was no ban, the petitioners were denied the employment. Even in the present writ petition, there is an assurance on the part of the respondents to provide employment to the petitioners. No time period has been fixed for the purpose. Admittedly, the ban for fresh appointment was imposed on 10.5.2000 and prior to that when there was no ban, the petitioners were denied the employment. The ban on employment, particularly, to Class IV post is only a handy work of the State. The petitioners are not seeking employment as ordinary citizens where the ban could as a refuge by the State to ignore their claim. The petitioners were assured through the Chief Ministers of both the States for employment and it was only on this inducement, allurement promise and assurance that properties were taken away and they were displaced from their homes and hearths. The claim of the petitioners has to considered on the basis of the aforesaid assurance and promise extended by two Chief Ministers of both the States holding highest position in the Executive. It is unfortunate that the promise and assurances extended by the Heads if two Governments are not being implemented either on account of dishonest intention or red-tapism and the poor petitioners are fighting for their rights and cause of justice for more than two decades. The Court cannot be oblivious to such a plight of the citizens who were extended the promises while taking over their properties and subsequently, such promises are not being honored. The legitimate expectations of the petitioners have been dashed to ground by total insensitiveness and apathy on the part of the Government of State of Punjab. In the case of The Union of India and others v. M/s Anglo Afghan Agencies etc (1968 AIR (SC) 718), the Honble Supreme Court has observed as under :- "20. This case is in our judgment a clear authority that even though the case, does not fall within the terms of section 115 of the Evidence Act, it is still open to, party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution. 21. 21. In Ahmad Yar Khan and others v. Secretary of State for India in Council and another (3), the plaintiffs claimed title to a canal supplied with water from the Sutlej having been constructed at great expense by their predecessors for purpose of irrigation, with the sanction and enforcement of the Government, Party on Government lands and partly on the lands of private owners under arrangements with them. It was held that the plaintiffs became proprietors of the canal and entitled to have the waters of the Sutlej admitted into it so long as it was used for the Purpose for which it was originally designed. Similarly in The Ganges Manufacturing Co. v. Surujmull (2) Garth C.J. observed that a man may be estopped not only from giving particular evidence, but from doing any act or relying upon any particular argument or contention, which the rules of equity and good conscience prevent him from using as against his opponent. XXX XXX XXX 23. Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise, solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances, in which the obligation has arisen. We agree with the High Court that the impugned order passed by the Textile Commissioner and confirmed by the Central Government imposing cut in the import entitlement by the respondents should be set aside and quashed and that the Textile Commissioner and the Joint Chief Controller of Imports and Exports be directed to issue to the respondents import certificate for the total amount equal to 100% of the f.o.b. value of the goods exported by the, unless there is some decision which fails within cl.10 of the Scheme in question." 11. Again in the case of M/s Motilal Padampt Sugar Mills v. State of Uttar Pradesh and others, (1979) 2 Supreme Court Cases 409, which has largely contributed for the development of doctrine of equitable/permissible estoppel, the Honble Supreme, taking into consideration the salient features and development of the doctrine both in English and Indian law has made, following observations :- "24. The law may, therefore now be taken to be settled as a result of this decision that where the Government makes a promise knowing or intending that it would be acted on by the promises and in fact, the promise, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promises, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Articles 299 of the Constitution. It is elementary that in a Republic government by the rule of low, no one, howsoever high or law, is above the law. Every one is subject to the law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of law is concerned the former is equally bound as the latter. It is indeed difficult to see on what principal can a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppel. Can the Government say that it is under no obligation to act in a manner that is fair and just or that it is not bound by considerations of "honesty and good faith"? Why should the Government not be held to a high "standard of rectangular rectitude while dealing with its citizens"? Can the Government say that it is under no obligation to act in a manner that is fair and just or that it is not bound by considerations of "honesty and good faith"? Why should the Government not be held to a high "standard of rectangular rectitude while dealing with its citizens"? There was a time when the doctrine of executive necessity was regarded as sufficient justification for the Government to repudiate even its contractual obligations, but it be said to the eternal glory of this Court, this doctrine was emphatically negatived in the indo- Afghan Agencies case and the supremacy of the rule of law was established it was laid down by this Court that the Government cannot claim to be immune from the applicability of the rule of promissory estoppel and repudiate a promise made by it on the ground that such promise may fetter its future executive action it the Government does not want its freedom of executive action of be hampered or restricted, the Government need not make a promise knowing or intending that it would be acted on by the promisee and the promisee would alter his position relying upon it. But if the Government makes such a promise and the promise acts in reliance upon it and alters his position, there is no reason why the Government should not be compelled to make good such promise like any other private individual. The law cannot acquire legitimacy and gain social acceptance unless it accords with the moral values of the society and the constant endeavor of the Courts and the legislatures must, therefore be to close the gap between law and morality and bring about as near an approximation between the two as possible. The doctrine of promissory estoppel is a significant judicial contribution in that direction. But it is necessary to point out the since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires. If it can be shown by the Government that having regard to the facts as they have transpire it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promise and enforce the promise against the Government. If it can be shown by the Government that having regard to the facts as they have transpire it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promise and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case because, on the facts, equity would not require that the Government should be held bound by the promise made by it. When the Government is able to show that in view of the facts as have transpired, public interest would be prejudiced if the Government were required to carry out the promise, the Court would have to balance the public interest in the Government carrying out a promise made to a citizen which has induced the citizen to act upon it and after this position and the public interest likely to suffer if the promise were required to be carried out by the Government and determine which way the equity lies. It would not be enough for the Government just to say that public interest requires that the Government should not be compelled to carry out the promise or that the public interest would suffer if the Government were required to honour it." In the case if Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO and others, (2007) 5 Supreme Court Cases 447, the Honble Supreme Court has observed as under :- "130. We, therefore, are of the opinion that doctrine of promissory estoppel also preserve a right. A right would be preserved when it is not expressly taken, away but it fact has expressly been preserved. XXX XXX XXX "132 We may also notice the emerging doctrine in this behalf, viz... Legitimate Excepectation of Substantive Benefit. Ordinarily, the said principal would not have any application where the legislature has enacted a statute. As, according to us the legislature in this case allowed the parties to take benefit of their existing rights having regard to the repeal and saving clause contained in Section 20(1) of the 2003 Act, the same would apply. If thus principal of promissory estoppel would apply there may not be any reason as to why the doctrine of legitimate expectation would not. 133. Legitimate expectation is now considered to be a part of principles of nature justice. If thus principal of promissory estoppel would apply there may not be any reason as to why the doctrine of legitimate expectation would not. 133. Legitimate expectation is now considered to be a part of principles of nature justice. If by reason of the existing state of affairs, a party is given to understand that the other party shall not take away the benefit without complying with the principles of natural justice, the said doctrine would be applicable. The legislature indisputably, has the power to legislate but where the law itself recognize existing right and did not take away the same expressly or by necessary implication, the principles of legitimate expectation of a substantive benefit may be held to be applicable." The aforesaid observations of the Honble Supreme Court are applicable to the case of the petitioners. In view of the above, this petition is allowed. The respondents are directed to provide employment to the petitioners on Class IV posts, as per the Scheme/Agreement dated 28.1.2000 vide item No. 43.03 within two months from today. The poor petitioners have been forced to approach this Court time and again. Every time they earned some observations in their favour, but the State for the reasons best known to it has totally ignored not only the claim of the petitioner, but also the observations made by the Court. This is a fit case where the State has to be burdened with costs. The petitioners shall be collectively entitled to Rs. 1,00 lacs to be paid by the State as costs.