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2016 DIGILAW 516 (UTT)

Rakesh Kumar v. State of Uttarakhand

2016-08-27

K.M.JOSEPH, U.C.DHYANI

body2016
JUDGMENT : K.M. JOSEPH, C.J. Appellant is the writ petitioner. He filed the writ petition seeking the following relief: “I. Issue a writ order or direction in the nature of mandamus directing and commanding the respondents to rehabilitate / allot the appropriate develop land to the petitioner and the villagers of Village Gugli Gram Sabha Magasu Tehsil Devprayag District Tehri Garhwal within a definite Spain of time.” 2. The learned Single Judge dismissed the writ petition. In doing so, the learned Single Judge took the view that reliance placed on the policy of 2007 was without basis. This is for the reason that the land of the appellant was acquired in the year 1989 for the purpose of construction of a hydro-electric project and the policy for rehabilitation was enacted in the year 2007. The policy was found to have prospective operation. 3. In the appeal, we have heard Mr. S.K. Mandal, learned counsel appearing for the appellant; Mr. D.S. Patni, learned counsel appearing for respondent No. 3 Corporation; and Mr. H.M. Bhatia, learned Brief Holder for the State. 4. Learned counsel for the appellant would submit that this is a case, where there is agreement reached between the petitioner and the third respondent Corporation. The agreement, which is referred to, consists of two documents essentially. The first agreement purports to be agreement dated 17.02.2010. Clause 12 of the said agreement (translated version) reads as follows: “12. There would be joint efforts to give 02 Nali land to the family of scheduled caste of village Gugli or to give 2 Nali for the land. The Project Director of the company has stated that he will discuss with the State of Uttarakhand.” 5. The matter did not rest with the said agreement, it is contended. It progressed to the next agreement, which is dated 27.11.2012. The terms of the same (translated version) are as follows: “1. It has been decided for the Rehabilitation for the village Dhari and Thailisain that up to EL616 M, the house and the land will be acquired and valued; thereafter the house will be demolished. 2. The villagers will be provide the list of 20 family, same shall be rehabilitated in the above site after selected the land and the villagers will tell for that and the action will be taken according to the R and R Policy. 3. 2. The villagers will be provide the list of 20 family, same shall be rehabilitated in the above site after selected the land and the villagers will tell for that and the action will be taken according to the R and R Policy. 3. The family of the village who are living above EL616M, the agreement will be made and same shall be attested from Notary. 4. The list of the family member of the villagers shall be verified through Administration and after receiving the list the further discussion and decision for package shall be held on 2 January 2013. The ten respectable persons from the village will be called for discussion of package, till 31.12.2012, if no decision come out the work shall be stopped automatically. The villagers will not stop the work of temple and if it is stopped the agreement will be cancelled automatically. 5. The work of bridge will be completed speedily and the matter shall sent the Administration.” 6. In regard to the first agreement, it is contended that the Corporation ought to have made efforts by taking up the matter with the Government, which it did not. The agreement was observed in its breach. The result was that persons like the appellant, who belonged to the Scheduled Caste Community, stood deprived of their land. It brings us to the next argument, namely, that there was discrimination. This argument is based on the differential treatment meted out to persons like the appellant and the oustees from lands, which were acquired for the purpose of Tehri Dam Project. In fact, there was an order issued in 1978, which provided for monetary compensation, as also other benefits like rehabilitation and alternate land. Therefore, there is dual policy, which is discriminatory, and it cannot be accepted, runs the argument. 7. Per contra, Mr. D.S. Patni, learned counsel appearing for the third respondent Corporation, would submit that, actually, the villagers, whose cause the appellant is espousing, obstructed in the carrying out of the work (this aspect is not as such pleaded). Mr. D.S. Patni points out that the case based on the agreements emerged in the rejoinder affidavit. The documents are produced only with the rejoinder affidavit, but the case is set up in the writ petition, runs the argument of Mr. S.K. Mandal. 8. Mr. D.S. Patni points out that the case based on the agreements emerged in the rejoinder affidavit. The documents are produced only with the rejoinder affidavit, but the case is set up in the writ petition, runs the argument of Mr. S.K. Mandal. 8. As far as the reliance placed on 2007 Policy is concerned, we agree with the learned Single Judge that it cannot apply to the appellant for the simple reason that the land of the appellant was acquired in the year 1989 and the 2007 Policy is not meant to have retrospective operation. 9. As far as the first agreement dated 17.02.2010 is concerned, according to the learned counsel for the appellant, Clause 12 alone remained to be implemented (that is to say, clauses 1 to 20 have been complied with by the third respondent, except Clause 12). We notice that Clause 12 provides that there will be joint efforts to give two Nali land to the families of Scheduled Caste or to give 2 Nali for the land. It was also provided that the Project Director of the company has stated that he will discuss with the State authorities. 10. It appears that the matter progressed to the stage of the next agreement dated 27.11.2012, the terms of which we have already extracted. In regard to the relief sought, namely, for rehabilitation not only of the appellant, but of other villagers also, the first thing we must notice is that this is not a writ petition filed in public interest. The appellant can only espouse his cause. Even taking the appellant’s case as such, if it is based on the agreements, which we have adverted to, it cannot be enforced as against the Government because Government is not a party. It is true that a writ of mandamus may lie to enforce public duty arising even from a contract in appropriate cases (see in this regard the judgment of the Apex Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & others vs. V.R. Rudani and others, reported in (1989) 2 SCC 691 ); but, we would not think that, in this case, we could say that there is a public duty as such enforceable against Alak Nanda. In fact, the appellant has approached this Court not as a public interest litigant, though he seeks relief on behalf of the other litigants also, for which we do not see any basis. In such circumstances, we would think that the case, which is developed by the learned counsel for the appellant before us based on the agreements, which we have adverted to, may not be countenanced by us in proceedings under Article 226 of the Constitution of India. 11. There is a case for the third respondent that, apart from compensation which is given, a sum of Rs. 47.93 lacs is also provided to the appellant’s family. This is besides providing job to the appellant’s family members. 12. In these circumstances, we do not think that this is a matter, where, in exercise of discretionary jurisdiction under Article 226, we should accept the plea of the appellant. Consequently, the appeal will stand dismissed without any order as to cost. But, this will be without prejudice to the right of the appellant to pursue any other remedy, which may be available to him in law before any other forum.