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2018 DIGILAW 45 (CAL)

Mamata Banerjee v. Eastern Coalfields Ltd.

2018-01-08

MIR DARA SHEKO

body2018
JUDGMENT : Hearing is concluded and the matter is taken up for delivery of judgment. 2. Heard learned Senior Counsel Mr Samit Talukdar being assisted by Ms. Vineeta Meharia and Ms. Trisha Mukherjee, learned Advocates representing the writ petitioners Mr. Talukdar invited attention of this Court that despite admission on the part of the respondent Eastern Coalfields Authority by issuing two letters in favour of the predecessor in interest of the writ petitioners, Badal Banerjee once since deceased, in the year 2009 and then in the year 2010 and though in the writ petition, being W.P. 1392 (W) of 1998 there was specific direction upon the ECL Authority to decide under intimation to the writ petitioners in respect of their claim but the impugned order was passed illegally without considering those admission. 3. Upon given facts and therefore ventilating grievance of the substituted writ petitioners, fact of which will be detailed hereafter, Mr. Talukdar submitted to issue Writ of Mandamus in terms of the prayer of the writ petition. 4. Learned Senior Counsel Mr. Pradip Kumar Dutta, being assisted by Mr. Aniruddha Mitra, Mr. Rajarshi Dutta, Mr. Partha Basu and Mr. Nikhil Kumar Roy, learned Advocates representing the ECL Authority invited attention to the text of the affidavit-in-opposition and also to the document appended thereto tried to impress upon that since the scheme of giving employment in lieu of the land acquired, being no more and the ECL Authority having obtained the land from Madan Banerjee and not from Badal Banerjee and in lieu of that acquisition at that relevant time employment having been given in favour of one Jiten Banerjee, as was nominated by Madan Banerjee, and, said Jiten Banerjee have not been made party, and, the writ petitioners being heirs of Badal Banerjee whose land were never acquired or purchased, the claim of the writ petitioner having no merit, is liable to be dismissed. 5. There was a policy prevalent that coal would be supplied in lieu of giving employment to the land-losers and in the process after acquisition of land to the extent of 2.10 acre of land belonging to Badal Banerjee since deceased, he was allowed to lift 20,000 M.Ts. of coal. Out of the said allotted limit only 2,100 M.Ts. 5. There was a policy prevalent that coal would be supplied in lieu of giving employment to the land-losers and in the process after acquisition of land to the extent of 2.10 acre of land belonging to Badal Banerjee since deceased, he was allowed to lift 20,000 M.Ts. of coal. Out of the said allotted limit only 2,100 M.Ts. of coal were allowed to be lifted denying the rest on the ground that trade licence would be required for lifting the rest quantity of coal. Badal Banerjee accordingly filed a writ application, being C.O. 10319 (W) of 1992 against the ECL Authority in the year 1992. Subsequently since there was some assurance from the ECL Authority the said writ petition was allowed to be dismissed for non-prosecution. But again taking note of inaction on the part of the ECL Authority in delivering the balance 17,900 M.Ts. of coal under land-losers scheme, W.P. 1392 (W) of 1998 was filed in the year 1998. In the midst of the proceeding he died and ultimately in the year 2008 the said writ petition was dismissed for default. 6. It is asserted that the writ petitioners, being wife and son of Badal Banerjee did not know about initiation of the writ petition by their predecessor and they had filed independently W.P. 17988 (W) of 2008 claiming delivery of the rest 17,900 M.Ts. of coal under land-losers scheme, which was dismissed as res judicata as because the earlier C.O. 10319 (W) of 1992 was dismissed for non-prosecution without any leave to file afresh and due to delay and laches. The said order of dismissal passed in W.P. 17988 (W) of 2008 was assailed in FMA 56 of 2011 which also suffered with dismissal order against which there was SLP 7954 of 2012 where liberty was given by the Hon'ble Apex Court to file review application before the Division Bench of this Hon'ble Court. Accordingly, RVW 99 of 2012 was filed which though was dismissed but did not debar the present writ petitioners (review applicants) from applying restoration application in W.P. 1392 (W) of 1998 after being substituted and accordingly on completion of that formalities it was heard and judgment was delivered on July 27, 2014. 7. In that writ petition the ECL Authority, however, raised the dispute contending that the predecessors of the writ petitioners, vis-a-vis writ petitioners were never land-losers. 7. In that writ petition the ECL Authority, however, raised the dispute contending that the predecessors of the writ petitioners, vis-a-vis writ petitioners were never land-losers. The Court, observed "the file has been produced and on a cursory perusal thereof it appears 0.22 decimals of land was acquired from the deceased writ petitioner". It was also observed, as Mr. Talukdar on an again referred to before this Court that, the text of the letters dated February 25, 1995 and September 27, 1996 were never disputed by the ECL Authority for which it was further observed "the position that emerges is that ECL had satisfied itself in allocating 20,000 M.Ts. of coal to be delivered to the deceased petitioner on payment of full coal value". 8. Since in these two letters the question of having trade licence were held redundant by the ECL Authority and since there was some admission that delivery of coal to the land-losers under land-losers scheme was stopped in the similar circumstance necessary direction was there for approval to deliver the coal to the applicants, it is obvious that under the land-losers scheme as it was prevalent at that time if the land was acquired from possession of the predecessor of the present writ petitioners then the ECL Authority would be bound to act upon the then prevalent scheme, because the policy if any has been changed in the long run, effect of the same can be prospective unless otherwise directed. 9. Now the document as appended to the affidavit-in-opposition as available in support of the text submitted by the ECL Authority that the land were obtained from Madan Banerjee from genealogical table, it appears that Badal Banerjee was the nephew he being Madan Banerjee's brother's son. In the earlier correspondence there was an observation of the Court that Badal Banerjee had the entitlement under the land-losers scheme as if his land to the tune of 2.10 acre were also acquired by the ECL Authority. 10. Though this is not a Court of title but still the Court within the ambit of Article 226 of the Constitution of India when is over-viewing the present action of the ECL Authority which has been assailed as illegal etc. seeking Writ of Mamdamus then further review on fact is not a bar specially, when basic facts are involved herein. Though this is not a Court of title but still the Court within the ambit of Article 226 of the Constitution of India when is over-viewing the present action of the ECL Authority which has been assailed as illegal etc. seeking Writ of Mamdamus then further review on fact is not a bar specially, when basic facts are involved herein. Claim is one thing and to substantiate right by proof is the other, and, the Court of any status is to rely only on the proof. Principally, possession follows title. But title is not conferred by mere admission. It is to exist in fact. It is established when any right is claimed on the basis of such title. Mere assertion will not do. Except the text of the two letters under reference the writ petitioners could not show any scrap of paper like record of right, showing payment of rent or even acquisition notice etc. issued in the name of Badal Banerjee that 2.10 acre of land were really lying under his title and possession and it was acquired by the ECL Authority. In affidavit-in-opposition it has been dealt with specifically that the land under the scheme was purchased from paternal uncle of Badal Banerjee and under nomination of Mdan Banerjee employment was given to one Jiten Banerjee. In affidavit-in-reply it was dealt with in paragraph 8 "save what are matters of record and save what may appear therefrom, I deny and dispute each and every allegation made in paragraphs 3(g) to 3(j) of the said affidavit". So this can be accepted as general denial not specific one. 11. Be that as it may, if the rest remains as matters on record then while the writ petitioners came up before the Court of equity to seek relief of the present nature then the Court obviously would demand the reasonable document of title and possession what their predecessor in interest had before the alleged acquisition of the impugned land measuring 2.10 acre. 12. On the contrary in the same paragraph 8 the writ petitioners, however, did not deny rather admitted saying "it has been already pointed out that Jiten Banerjee is the son of Madan Banerjee and he got the employment from ECL Authority against the land of Madan Banerjee, being 1 acre of land acquired by ECL Authority". 13. 12. On the contrary in the same paragraph 8 the writ petitioners, however, did not deny rather admitted saying "it has been already pointed out that Jiten Banerjee is the son of Madan Banerjee and he got the employment from ECL Authority against the land of Madan Banerjee, being 1 acre of land acquired by ECL Authority". 13. Obviously, question may arise that while the policy would have been that employment should be compensated in lieu of acquisition of one acre of land then what happened after acquisition of even rest 1.10 acre of land? Again to come to the conclusion the demand is to substantiate with title of the predecessor of the writ petitioners to the rest quantity of land and acquisition of said rest land from Badal Banerjee by the ECL Authority either of which is non-est on record. 14. In the earlier round there were several writ petitions at first at the instance of Badal Banerjee and then at the instance of his successors and according to the assertion of the writ petitioners, it appears that Badal Banerjee was allowed to lift only 2,100 M.Ts. of coal denying the rest. 15. Therefore, the text of the impugned order disclosing the fact as is found coupled with document which has lent support in acquiring of land only from Madan Banerjee and from none-else, and under nomination of Madan Banerjee his son Jiten Banerjee having been employment by the ECL Authority and on the other hand though earlier two letters having given rise to this Court earlier round of litigation and since there were some observation in different dimensions on fact, of course this Court has accepted the fact as established, that the writ petitioners have failed to produce any document showing their title and possession over the property which is said to have been acquired by the ECL Authority and therefore they cannot claim the Writ of Mandamus as land-losers as sought for. 16. On the contrary as per the scheme of land-losers as was also contended by the writ petitioners the same having been fulfilled as reveals from the text of the affidavit-in-opposition which also has been admitted through the text of affidavit-in-reply, the writ petition stands dismissed though without any costs. 17. Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis.