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Jharkhand High Court · body

2017 DIGILAW 1961 (JHR)

Shibu Rajwar v. Bharat Coking Coal Limited

2017-11-16

RAJESH SHANKAR

body2017
ORDER : Heard learned counsel for the parties. 2. The present writ petition has been filed for quashing the order dated 2.7.2015 contained in Ref. No. BCCL/EJA/PO/AMBD/2015/600-07 (Annexure-7 to the writ petition) passed by the Project Officer, Amlabad Colliery, BCCL whereby the representation of the petitioner for employment of his two sons and one daughter in lieu of the acquisition of his land of 7.63 acres, has been rejected. The petitioner has further prayed for a direction upon the respondents• to rehabilitate his family in lieu of his acquired land. 3. The factual background of the case as stated in the writ petition is that the land under Khata No. 75, Plot Nos. 51, 62 to 72, 74, 76, 78 to 83 and 90 area 7.63 acres in Mouza-Amlabad (hereinafter called the said land) belonging to the father of the petitioner were acquired in the year 1989-90 and utilized by Bharat Coking Coal Limited for its Amlabad Project, District Bokaro. At the time of acquisition, Pucca and Kachha houses were standing upon the said land and, as such, the same were also acquired by the respondents. In lieu of the acquisition of land, the respondents paid compensation of Rs. 13,379.98 to the father of the petitioner and Rs. 34,302.79 for one house but failed to pay Rs. 27,959.95 for the second house, At the time of acquisition of the land, a policy was floated by the respondent-BCCL, according to which, the benefit of one employment for every 2 acres of land acquired was assured to the landowners. It is claimed by the petitioner that despite the acquisition of 7.63 acres of his land, no employment was provided to petitioner's family, though his family was entitled to at least three employments. The petitioner unsuccessfully approached the respondent-BCCL for employment of his wife several times, lastly in the year 2012. Thereafter, the petitioner filed a writ petition being WP(C) No. 2181 of 2013 which was disposed of by this Court vide order dated 27.1.2015 giving liberty to the petitioner to approach the respondent-BCCL by filing a representation for grant of benefit under R & R Policy. Pursuant to the order dated 27.1.2015, the petitioner filed representation to the Project Officer, Amlabad Project of BCCL which was rejected vide order dated 2.7.2015 as contained in Ref. No. BCCL/EJA/PO/AMBD/2015/600-07, which gives rise to filing of the present writ petition. 4. Mr. Pursuant to the order dated 27.1.2015, the petitioner filed representation to the Project Officer, Amlabad Project of BCCL which was rejected vide order dated 2.7.2015 as contained in Ref. No. BCCL/EJA/PO/AMBD/2015/600-07, which gives rise to filing of the present writ petition. 4. Mr. Rajiv Kumar Shekhar, learned counsel appearing on behalf of the petitioner submits that the impugned order has been passed primarily on two grounds, firstly that the claim for employment was filed belatedly and secondly that for the same land, one Pashupati Rajwar S/o Nanhu Rajwar and others were provided employment by the BCCL. It is further submitted that Pashupati Rajwar has been provided employment for different land and the said fact has been confirmed by the information provided to the petitioner under R.T.I. Act, 2005 vide letter dated 15/16.7.2015. It is further submitted that the respondent no. 4 erroneously observed in the impugned order dated 2.7.2015 that the claim for employment was made after more than 20 years, as the petitioner had made the claim for employment of his wife within reasonable time, but he being not much literate, has not kept the records of all the old communications. It is further submitted that the respondents have provided employment to the landowners in lieu of the land acquired 24 years before, which will be apparent from the extracts of FDs minutes dated 12.1.2015, and the newspaper cuttings dated 28.5.2015. Thus the impugned order passed by the respondent no. 4 denying the claim of the petitioner is discriminatory. It is also submitted that the petitioner is not claiming employment in lieu of the acquisition of the land of Buniyadi Rajwar but of independent land of Nageshwar Rajwar (father of the petitioner). Learned counsel for the petitioner puts reliance on a judgment rendered in the case of Tukaram Kana Joshi vs. Maharashtra Industrial Development Corporation reported in (2013) 1 SCC 353 : 2013 (1) JLJR(SC) 229 and submits that delay is not an absolute impediment to exercise judicial discretion under Article 226 of the Constitution of India so as to render substantial justice to the litigants. 5. Mr. 5. Mr. Indrajit Sinha, learned counsel appearing for the respondent-Bharat Coking Coal Ltd. (BCCL) submits that the petitioner did not pursue the matter between 1990 to 2012 and, as such, the claim is belated one and the said conduct of the petitioner is an act of waiver of his claim for any further employment. It is further submitted that the employment has already been provided for acquisition of the land to the dependent of Buniyadi Rajwar who is the grandfather of the petitioner. Since at the time of acquisition, no one except the petitioner was entitled for the employment and at the relevant point of time, the petitioner was already an employee of the respondent-BCCL, now after waiting for 20 years i.e. after attaining of the age of majority by his sons and daughter, the petitioner approached this court, which is not permissible in law. It is further submitted that though the petitioner has tried to make out a case of discrimination being the land loser of Tetulmari Nagarikala Mouza, it has neither been stated in the writ petition nor submitted during the argument that the case of the petitioner is similar to that of Tetulmari Nagarikala Mouza. In support of the above contention, Mr. Sinha relied upon the judgment of this court rendered in the case of Renuka Bala Devi Vs. Bharat Coking Coal Limited reported in 2011 (3) JLJR 362 and submits that when the petitioner did not opt for appointment at the time when the policy was in operation, it is an act of waiver for any further employment and the claim for appointment cannot be granted after a long delay. 6. Having heard the learned counsel for the parties and on going through the documents available on record, it appears that the land recorded in the name of the petitioner's father was acquired by the respondents for utilizing it by the Bharat Coking Coal Limited for its Amlabad Project and compensation was also paid in lieu of the said acquisition. 6. Having heard the learned counsel for the parties and on going through the documents available on record, it appears that the land recorded in the name of the petitioner's father was acquired by the respondents for utilizing it by the Bharat Coking Coal Limited for its Amlabad Project and compensation was also paid in lieu of the said acquisition. It is claimed by the petitioner that a policy was floated by the respondents whereunder for acquisition of 2 acres of land, the displaced person was to be given one employment and since about 7.63 acres of his land was acquired, he is entitled to at least three employment, but the respondent did not provide a single employment to his family in spite of the fact that he all along pursued his claim for employment. However, the said statement of the petitioner has been denied by the respondents. The petitioner's contention is that since he is an illiterate person, he could not keep the old record for reference. The said contention of the petitioner cannot be reasonably accepted. In fact, the record of the case reveals that the petitioner was in employment of the respondent-BCCL at the relevant time and a person already under employment was supposed to know about the value of such document(s). Once the respondents denied any such representation having been filed by the petitioner, the burden to prove that the petitioner had submitted any representation for employment in time and pursued the matter regularly is upon him, but the petitioner has failed to prove the same. The respondents have claimed that since at the time of acquisition, the petitioner was already in the employment of the respondent-BCCL, he filed claim for further employment after 20 years only when his sons and daughter attained majority. The said stand of the respondents has not been controverted by the petitioner by placing sufficient material on record to show as to which member of the family was entitled for employment under the R & R policy during the relevant time and for what possible reason the claim was not made/pursued for more than 20 years. The respondents have also contended that a person of the same family has been given appointment in lieu of the acquisition which shows the impartiality on the part of the respondents. The respondents have also contended that a person of the same family has been given appointment in lieu of the acquisition which shows the impartiality on the part of the respondents. The petitioner has also failed to show as to why his family members were denied employment under R & R Policy. Belated claim of R & R Policy could have been considered under exceptional circumstance if the petitioner had been able to establish that he pursued his claim diligently, but due to the inaction of the respondents, his claim could not be considered in time. The petitioner, however, has failed to bring on record any material to establish that he was pursuing the matter before the respondents but they did not decide the claim in time. I find force in the submission of the learned counsel for the respondents that since at the relevant point of time, the petitioner was in service of the respondent-BCCL, he did not pursue the matter earlier and only after his children attained majority and became eligible for employment, he raised the said claim on false pretext. Otherwise also, the purpose of giving employment to the displaced persons is to rehabilitate them for their subsistence. If this object is to be achieved, such employment must be extended within reasonable period of occurrence of such event. The object cannot said to be achieved by providing employment after expiry of unreasonably long period. An employment given under a rehabilitation policy is comparable to the concept of compassionate appointment in service jurisprudence, thus, it cannot be claimed at belated stage. If the belated claim of the petitioner is held to be justified, it may lead to multiplicity of claims by different persons at different intervals belatedly and no policy will come to an end. Any policy for providing benefit to the sufferer/needy regard being had to the condition prevailing at relevant time. Long delay at instance of the needy, completely washes out the purpose to be achieved by the said policy at the relevant time. 7. In the case of Butu Prasad Kumbhar & Ors. Vs. Steel Authority of India and Ors. reported in 1995 Supp. (2) SCC 225 held in para 6 as under:- "6. The constitutional challenge based on Article 21 does not appear to have any substance. In. 7. In the case of Butu Prasad Kumbhar & Ors. Vs. Steel Authority of India and Ors. reported in 1995 Supp. (2) SCC 225 held in para 6 as under:- "6. The constitutional challenge based on Article 21 does not appear to have any substance. In. Olga Tellis, (1985) 3 SCC 545 it was observed by this Court that the concept of right of life conferred was wide and far-reaching and the deprivation of the right to livelihood without following the procedure established by law was violative of the fundamental guarantee to a citizen. Needless to say that petitioners or their ancestors were not deprived of their land without following the procedure established in law. Their land was taken under the Land Acquisition Act. They were paid compensation for it. Therefore, the challenge raised on violation of Article 21 is devoid of any merit. Even otherwise the obligation of the State to ensure that no citizen is deprived of his livelihood does not extend to provide employment to every member of each family displaced in consequence of acquisition of land. Rourkela Plant was established for the growth of the country. It is one of the prestigious steel plants. It was established in public sector. The Government has paid market value for the land acquired. Even if the Government or the steel plant would not have offered any employment to any person it would not have resulted in violation of any fundamental right. Yet considering the poverty of the persons who were displaced both the Central and the State Government took steps to ensure that each family was protected by giving employment to at least one member in the plant. We fail to appreciate how such a step by the Government is violative of Article 21. The claim of the petitioners that unless each adult member is given employment or the future generation is ensured of a preferential claim it would be arbitrary or contrary with the constitutional guarantee is indeed stretching Article 21 without any regard to its scope and ambit as explained by this Court. Truly speaking it is just the other way. Acceptance of such a demand would be against Article 14." 8. I have perused the judgment of the Hon'ble Supreme Court rendered in the case of Tukaram Kana Joshi (supra), as has been cited by the learned counsel for the petitioner. Truly speaking it is just the other way. Acceptance of such a demand would be against Article 14." 8. I have perused the judgment of the Hon'ble Supreme Court rendered in the case of Tukaram Kana Joshi (supra), as has been cited by the learned counsel for the petitioner. In the said judgment, the Hon'ble Supreme Court has held that the question of condonation of delay is one of discretion and has to be decided on the basis of the facts of each case. Merely because, there is delay in raising the claim, it is not an impediment to exercise judicial discretion. In the said case, the fact was that the land was taken in possession by the authorities but due to lapse of the proceeding, the compensation and other benefits as were given to the other displaced persons, were not extended to the appellant despite the fact that he had been pursuing his claim before the authorities continuously. 9. However, in the present case, the land of the father of the petitioner was acquired in the year 1989-90 and at that time, the children of the petitioner were minor. Though it is claimed by the petitioner that an application for appointment was initially made by his wife in time, yet the said claim was not pursued. The fact also reveals that the family of deceased was not in dire need of any immediate assistance. The said claim was perhaps preserved by the petitioner to secure employment of his children after they attain majority. The scheme of rehabilitation employment cannot be allowed to perpetuate for more than 20 years. Grant of employment under rehabilitation scheme after such long delay or a claim for such employment after attaining majority would itself be violating of Article 16 of the Constitution of India. It would amount to reserving the employment for the descendants of the displaced persons only. Rehabilitation by way of appointment cannot be considered as another source of recruitment or a scheme for reserving future vacancies for minors of the displaced persons. It is apparent from the fact of the present case that during the period the lands of the petitioner were acquired, the petitioner did not make any claim for getting employment in lieu of the acquisition of 7.63 acres of lands. It is apparent from the fact of the present case that during the period the lands of the petitioner were acquired, the petitioner did not make any claim for getting employment in lieu of the acquisition of 7.63 acres of lands. Once the children of the petitioner attained majority, the petitioner started pursuing the matter with the respondent-BCCL for their employment in lieu of acquisition of his land made in the year 1989-90. Thus, in the facts of the case, I am not persuaded by the said contention of the learned counsel for the petitioner, so as to condone the delay committed by the petitioner in pursing the matter of employment in lieu of acquisition of his land made in the year 1989-90. 10. Considering the aforesaid facts and circumstances, I am not inclined to interfere with the order dated 2.7.2015 passed by the Project Officer, Amlabad Colliery (Annexure-7 to the writ petition). 11. The writ petition being devoid of merit is, accordingly, dismissed.