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2013 DIGILAW 13 (CAL)

Rabi Mondal v. Eastern Coalfield Limited

2013-01-10

JOYMALYA BAGCHI

body2013
JUDGMENT The petitioners have approached this Court, inter alia, praying for direction upon respondent no. 1, Eastern Coalfields Limited (ECL for short) to release coal in favour of the petitioners @ 1600 metric ton per acre by way of compensation against acquisition of land and for other consequences reliefs. In or about 1988, it is alleged that land belonging to the petitioners and others were acquired by ECL for expansion of mining activities. Initially, ECL floated a “land loser scheme” wherein it, inter alia, proposed giving employment to land losers who were willing to sell their land. However, by a subsequent change of policy, the ECL, inter alia, proposed that a land loser would be entitled to 1600 metric ton of grade “D” coal per acre of land acquired in lieu of one employment per acre of land so acquired. In view of the said policy, one Subhas Pal, Sunil Kumar Pal, Ajoy Kumar Pal and Uttam Pal filed writ petition being W.P. No. 13391 (W) of 1999 (hereinafter referred to as the first writ petition) seeking direction upon ECL for allotment of coal under the aforesaid “land loser scheme” in respect of the present land in question. By order dated 17.10.1999 His Lordship the Hon’ble Justice Pinaki Chandra Ghose (as His Lordship then was) disposed of the writ petition as follows : “Having heard the Learned Advocate for the parties and keeping in view the policy decision taken by the respondent authorities, this application is disposed of with the direction to the respondents to allot steam coal Grade ‘D’ to the petitioner at the rate of 1600 MT per acre for 62 acres from Kajora Area within a period of six weeks from the date of completion of all formalities thereof and by production of records.” Thereafter ECL filed an application being CAN No. 10004 of 1999 for modification of the aforesaid order and the same was disposed of by a subsequent order dated 15.02.2001, which read as follows : “The petitioners shall be at liberty to file a fresh representation on behalf of Mr. Subhas Pal with the respondent authorities Eastern Coal Fields Ltd. and the respondent authorities shall decide the matter in accordance with law accepting Mr. Subhas Pal with the respondent authorities Eastern Coal Fields Ltd. and the respondent authorities shall decide the matter in accordance with law accepting Mr. Pal and the other members of his family who were not represented at the time of hearing in connection with the plots mentioned in the writ petition and shall pass a reasoned order with 6 weeks from the date of communication of this order.” Pursuant to such direction, on 09.03.2001 the representation was made before respondent no. 3, General Manager, ECL, by the said Subhas Pal, Sunil Kumar Pal, Ajoy Kumar Pal and Uttam Pal and 19 others being petitioner nos. 1 to 5, 7, 9 to 16, 22, 28, 29 and 34 of the instant writ petition. After hearing the parties, respondent no. 3 held as follows : “During the hearing, the record of land purchase was examined and it was found as under : 1. Land belongs to the petitioner Sri Subhas Pal and 3 others – 11.99 acres as per previous hearing dt. 01.08.2000. 2. Land belongs to the petitioners who signed the representation dt. 09.03.2001 is 28.79 acres. 3. Land purchased by the Company but the owners have not represented measuring 18.75 acres. So, the total land purchased from the petitioners and others is 59.505 acres (11.99 + 18.725 acres). On behalf of the management, Sri R.C. Pal, Asstt. Survey Officer, Jambad was present and shown the record which was in the form of register, copy of which is also enclosed. I have gone through the records and representation of the petitioners and do find that the total land purchased from Sri Subhas Pal, Sri Sunil Pal, Sri Ajoy Kr. Pal, Sri Jayanta Kr. Pal and other signatories in the representation and those who have not signed the representation measured 59.505 acres in total.” Thereafter, in 2001 said Subhas Pal, Sunil Kumar Pal, Ajoy Kumar Pal and Uttam Pal along with 19 others being petitioner nos. 1 to 5, 7, 9 to 16, 22, 28, 29 and 34 of the instant writ petition filed another W.P. No. 14367 (W) of 2001 (hereinafter referred to as the second writ petition) seeking allotment of coal in terms of the aforesaid policy in respect of the land in question. By order dated 03.12.2001 His Lordship the Hon’ble Justice Asok Kumar Ganguly (as His Lordship then was) dismissed the writ petition. By order dated 03.12.2001 His Lordship the Hon’ble Justice Asok Kumar Ganguly (as His Lordship then was) dismissed the writ petition. The petitioners thereafter preferred an appeal against the said order being F.M.A. No. 393 of 2002. By order dated 25.01.2007 an Hon’ble Division Bench of this Court disposed of the said appeal, inter alia, holding that the petitioners in the first writ petition were entitled to allotment of coal against acquisition of 11.99 acres of land but the other petitioners could not be extended the same benefit. While doing so, the Division Bench held as follows : “We are however, inclined to accept Mr. Sen’s second contention and the order of the learned single Judge, in our view could not be extended to the friends and relatives of the writ petitioners. They kept their eyes wide open and did not approach this Court. Hence, no benefit could be achieved by those parties who did not venture to approach this Court.” The aforesaid judgment and order of the Hon’ble Division Bench of this Court was assailed before the Apex Court in SLP No. 2099 of 2007 which was dismissed by order dated 03.12.2007. Hence the said judgment and order dated 25.01.2007 passed by the Division Bench in F.M.A. No. 393 of 2002 became final and binding between the parties and was duly acted upon and coal was allotted to Subhas Pal, Sunil Kumar Pal, Ajoy Kumar Pal and Uttam Pal being the petitioners in the first writ petition. Presently, the instant writ petition has been taken up by 67 writ petitioners, who may be classified into two categories – (1) those who had unsuccessfully approached this Court earlier in the second writ petition and (2) the others who have approached this Court for the first time claiming themselves to be the owners of the remainder land so acquired by ECL. Mr. Talukdar, Sr. Counsel being assisted by Ms. Meharia appearing on behalf of the writ petitioners submitted that the writ petitioners are the owners of the land which was acquired by ECL. He also submits that the writ petitioners, in terms of the aforesaid “land loser scheme” had acquired vested right to allotment of 1600 metric ton of grade ‘D’ coal per acre of land acquired in lieu of employment. He also submits that the writ petitioners, in terms of the aforesaid “land loser scheme” had acquired vested right to allotment of 1600 metric ton of grade ‘D’ coal per acre of land acquired in lieu of employment. He further submitted that the alleged change of policy as argued by ECL had no retrospective effect to defeat a vested right. He also submitted that the claim that the writ petitioners had been paid enhanced price for purchase of their land had not been pleaded in the opposition filed by ECL and the latter cannot rely on parawise comments which did not conform to the verified pleadings filed on behalf of the respondents in the instant case. He submitted that delay and laches in approaching the Court in the instant case had been duly explained and as no third party rights had accrued in the meantime the petitioners ought not to be denied the reliefs as claimed herein. Finally, Mr. Talukdar submitted that the decision in Judgment and order dated 25.01.2007 in F.M.A. No. 393 of 2002 did not operate as res judicata so far it related to the claim of the petitioners who were parties in the second writ petition. In support of his contentions he relied on the following decisions : (I)ECL v. Dugal Kumar : (2008) 14 SCC 295 (II)Unreported Judgment of Debasis Kar Gupta, J dated 25.11.2009 in W.P. No. 18863 (W) of 1999 (III)Unreported Judgment of Pinaki Chandra Ghose and Harish Tandon, JJ. dated 18.07.2011 in MAT No. 1350 of 2009 and affirmed by Supreme Court in SLP No. 33445 of 2011. Mr. Pradip Kumar Dutta, learned advocate appearing for ECL submitted that allotment of coal ought not to be granted to the writ petitioners on the ground of delay and laches alone. He further submitted that the writ petitioners had been paid enhanced sale price as would appear from the para wise comments furnished by ECL and annexed to the supplementary affidavit filed by the writ petitioners themselves, and, therefore they were not entitled to allotment of coal under the “land loser scheme”. He further submitted that by change of policy, allotment of coal had been stopped and hence it would operate the prejudice of ECL to make allotment to the writ petitioners at this belated stage. He further submitted that by change of policy, allotment of coal had been stopped and hence it would operate the prejudice of ECL to make allotment to the writ petitioners at this belated stage. He further submitted that in respect of the petitioners who were parties in the second writ petition, their claim was barred by res judicata. In support of his contention he relied on 1998 (4) SCC 117 , 1997 (5) SC 167. In the light of the rival submissions of the parties, I propose to deal with the claim of the two categories of writ petitioners in seriatim. It appears that first category of petitioners had pursuant to the order dated 17.10.1999 passed by this Court in the first writ petition approached respondent no. 3 for adjudication of their claim for allotment of coal against the acquisition of their land. Their representation was disposed of by respondent no. 3 by order dated 19.04.2001. Such order was challenged by this group of petitioner along with Subhas Pal, Sunil Kumar Pal, Ajoy Kumar Pal and Uttam Pal, that is, the petitioners in the first writ petition. The said writ petition was dismissed and they preferred appeal against such Judgment and order being F.M.A. No. 393 of 2002. The said intra court appeal was disposed of by an Hon’ble Division Bench of this Court on 25.01.2007 wherein it was held that this group of petitioners could not be extended the same relief as the petitioners in the first writ petition as they “with their eyes wide open did not approach this Court”. No leave was also sought for nor granted to them to file fresh writ petition to agitate their claim. The writ petitioners accepted such finding of the Division Bench and the same became final and binding between the parties. Thereafter, the said persons are re-agitating the same issue before this Court by filing the instant writ petition. It is pertinent to reiterate that no leave was granted to them by the Hon’ble Division Bench to re-agitate their claim afresh. In the absence of the same, I am of the opinion that the first category of petitioners are not entitled to reopen their claim for allotment of coal under the aforesaid scheme which stood foreclosed on the ground of their failure to approach this Court earlier. In the absence of the same, I am of the opinion that the first category of petitioners are not entitled to reopen their claim for allotment of coal under the aforesaid scheme which stood foreclosed on the ground of their failure to approach this Court earlier. To permit them to do so would amount to disturbing the finding of the Division Bench in the aforesaid Judgment and order dated 25.01.2007 in F.M.A. No. 393 of 2002 that the said persons were not entitled to the relief of allotment of coal as they were not parties in the first writ petition. For the aforesaid reason, I am loath to grant relief in the instant writ petition in favour of the petitioners in the first category. With regard to the second category of the petitioners, it alleged that their land was acquired in 1988. They approached this Court after 20 years in 2008, only after some persons namely Sub has Pal, Sunil Kumar Pal, Ajoy Kumar Pal and Uttam Pal were given allotment of coal. These petitioners were neither parties in the earlier writ petition nor did they make any representation whatsoever for allotment of coal in their favour either pursuant to order dated 07.10.1999 in the first writ petition or otherwise. There is no iota of explanation as what prevented the writ petitioners from approaching and/or making representation before the concerned authorities for allotment of coal in terms of the “land loser policy” as claimed by them for long two decades before approaching this Court. They woke up from their deep slumber only when petitoners in the first writ petition were granted allotment of coal under the aforesaid scheme. It is settled law that writ of mandamus is a discretionary remedy and stands defeated by unexplained delay even when rights are allegedly claimed pursuant to an earlier Judgment of a Court. In A.P. Steel Re-reolling Mill Ltd. Vs. State of Kerala & Ors with Victory Papers and Boards India Ltd. vs. State of Kerala & Ors reported in (2007) 2 SCC 725 , the Apex Court held, “The benefit of a Judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration of the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this Court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief. Similar view was taken in (2008) 17 SCC 688 (para 7). It is settled law that Courts are slow to grant discretionary relief to litigants who are “………….not vigilant but were content to be dormant and chose to sit on the fence till somebody else’s case came to be decided.” (See (1989) 2 SCC 356 ) The case cited in favour of the petitioners are clearly distinguishable on facts. In the case reported in 2008 (14) SCC 295 the Apex Court, inter alia, was of the view that the argument of the respondents that “a delay of about a decade in approaching the Court for allotment of coal under the land loser policy had much substance.” However, in the facts of the said case, the Apex Court permitted the said relief as the initial order for allotment of coal in favour of the petitioners therein was passed on concession of the learned advocate appearing for the Company. In paragraph 30 of the said Judgment the Apex Court held as follows : “30. Prima facie, we are satisfied that the learned Single Judge should not have entertained a writ petition in 1999 and in directing the Company to release balance quantity of 1008 MT of coal to the writ petitioner. But as observed earlier, the order was passed in view of the statement of learned counsel appearing for the Company that the court could pass “usual order” and accordingly the order was passed. It was also stated by the writ petitioner in the counter-affidavit that similar orders were passed in several matters. But as observed earlier, the order was passed in view of the statement of learned counsel appearing for the Company that the court could pass “usual order” and accordingly the order was passed. It was also stated by the writ petitioner in the counter-affidavit that similar orders were passed in several matters. It would, therefore, be appropriate if we extend the benefit to the writ petitioner of the order passed by the learned Single Judge to the extent of “balance quantity of 1008 MT of coal”, which was based on the “statement” by the counsel for the Company.” In the instant case there is no direction to make allotment of coal in favour of the writ petitioners upon concession. On the contrary, in spite of direction of this Court on 17.10.1999 in the first writ petition, this category of writ petitioners did not make any representation for allotment of coal before respondent no. 3 and approached this Court for the first time after 20 years in 2008, after allotment of coal had been made in favour of the writ petitioners in the first writ petition. Relief in the nature of mandamus in writ jurisdiction is a discretionary one and the same cannot be given to such persons who sleep over their rights and agitate the same only when others are given similar reliefs. Other unreported decisions relied on by the writ petitioners in MAT No. 1350 of 2009 and W.P. No. 18863 (W) of 1999 are also distinguishable on facts inasmuch the delay was sufficiently explained in those cases as several representations had been made by the petitioners therein which went unheeded to by the respondents. In the instant case, there is no material on record that this category of petitioners had earlier made any representation to stake their claim under the aforesaid scheme either in terms of the earlier direction given by this Court or otherwise prior to approaching this Court after 2 decades. Allotment of compensatory benefit to a party under a scheme requires to be promptly availed of by the claimant. Such allotment operates in the realm of economic policy and to permit a stale/belated claim in respect thereof causes great prejudice to the State. In the instant case under the land loser scheme coal was to be allotted to a land loser. Such allotment operates in the realm of economic policy and to permit a stale/belated claim in respect thereof causes great prejudice to the State. In the instant case under the land loser scheme coal was to be allotted to a land loser. The land losers chose not to agitate their claim for 20 years and had come to this Court only after some individuals were granted relief. To consider their claim and allow the same after a lapse of two decades would impose a higher burden upon the State due to economic and other attending circumstances and therefore it cannot be said that such inexplicable delay in the facts and circumstances of the instant case does not adversely affect the respondents. In State of Maharashtra Vs. Digambar (1995) 4 SCC 683 , the Apex Court held, “How a person who alleges against the State of deprivation of his legal right, cant get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this Court that no person, be he is a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blameworthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblame worthy conduct for getting such relief, where the State against which relief is sought is a Welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the Welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly unjustified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable there under unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such a laches or undue delay, acquiescence or waiver, the relief so granted becomes un sustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State.” For the aforesaid reasons, I am not inclined in granting relief to the second category of writ petitioners on the ground of inordinate and unexplained delay of approaching this Court for such discretionary relief. The writ petition is accordingly dismissed. Urgent certified photo stat copy of this order be given to the parties, if applied for, subject to compliance with all necessary formalities.