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2018 DIGILAW 898 (GUJ)

Chauhan Jasuba Mohabatsing v. State of Gujarat

2018-07-25

A.J.SHASTRI

body2018
JUDGMENT & ORDER : A.J. SHASTRI, J. 1. The present petitioners are the resident of village Nalodar, Taluka Vav, District- Banaskantha have approached this Court under Article 226 of the Constitution of India for the purpose of seeking following reliefs:- "9.(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus, any other appropriate writ, order or direction in the nature of mandamus directing the respondent no.1 to cause inquiry into the matter and to initiate disciplinary action against the responsible officers who is found guilty of inaction in implementing the government policy; (B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus, any other appropriate writ, order or direction in the nature of mandamus directing the respondents to forthwith disburse the amount of compensation to the petitioners as determined by the Taluka Development Officer, Vav with all consequential benefit in favour of the petitioners; (C) Pending the admission, hearing and disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondents-authorities to make payment of compensation as determined to the petitioners forthwith and further be pleased to direct the respondent no.1 to submit action taken report of its inquiry for passing further appropriate interim orders, in the interest of justice and equity; (D) YOUR LORDSHIPS may be pleased to grant such other and further reliefs as may be deemed just and proper in the facts and circumstances of present case." 2. The case of the petitioners is that the petitioners are the resident of village Nalodar, Taluka Vav, District-Banaskantha and their permanent resident of village since number of years. On account of devastated floods which took place in July 2015, the households of the petitioners have been washed away severely affected and some of the persons houses were also irreversibly damaged. 3. It is the case of the petitioners that on account of such floods affected area the State Government by way of passing Government Resolution on 27.04.2015 has resolved to pay compensation of amount of Rs. 11,200/-, Rs. 9,200 and Rs. 7,200/- for partially damaged Kachcha/Pakka houses respectively. It was decided by the Government to extend such benefits to the resident of village Nalodar who are the victim of natural calamity of floods of 2015. 11,200/-, Rs. 9,200 and Rs. 7,200/- for partially damaged Kachcha/Pakka houses respectively. It was decided by the Government to extend such benefits to the resident of village Nalodar who are the victim of natural calamity of floods of 2015. With a view to ascertain the damage, the survey was carried out, a detail inquiry was conducted and list of eligible persons have been prepared and respondent No.4 upon such was pleased to pass four separate orders in the months of August and September, 2015 for awarding compensation to the petitioners under the policy of aforesaid Government Resolution. 4. It is the case of the petitioners that on the basis of aforesaid orders, the respondent No.4 also prepared contingent bills for release of fund to the petitioners by way of compensation. However, in spite of aforesaid office orders having been passed by the Taluka Development Officer after due inquiry, the payments have not been made to the petitioners for some unknown reasons to the petitioners. As a result of this, on number of occasions, the petitioners were constrained to approach the office of respondent Nos. 2 to 4 with a request to release the amount of compensation. However, lame excuses were given and hope was continued but fact remain that the payment has not been paid. 5. It is further the case of the petitioners that the detail representations were also found by the badly affected persons of Taluka Vav on 10.02.2016 and 18.04.2016 but so far no payment was made. Even after such kind of repeated request and written representations, the amount of compensation is not disbursed. However, respondent No.4 had addressed a communication on 22.03.2016 to the Deputy District Development Officer (Revenue Branch) informing that even after March, 2016 so far no compensation is paid. As a result of this, left with no other remedy, the petitioners are constrained to approach this Court by way of present petition. 6. This Court on 08.08.2016 was pleased to issue notice calling upon the respondent authority, but thereafter, Mr.H.S.Munshaw, learned advocate appearing on behalf of respondent No.4 - authority has submitted that there is some serious malpractice took place in respect of awarding of compensation and that has consequently raised a criminal complaint lodged before ACB Police Station, Palanpur. 6. This Court on 08.08.2016 was pleased to issue notice calling upon the respondent authority, but thereafter, Mr.H.S.Munshaw, learned advocate appearing on behalf of respondent No.4 - authority has submitted that there is some serious malpractice took place in respect of awarding of compensation and that has consequently raised a criminal complaint lodged before ACB Police Station, Palanpur. Upon such intimation by way of order dated 23.06.2017, this Court was pleased to direct respondent authority to make the stand clear and gradually certain orders have been passed on record which has prompted the authority to submit the reply. The petition came up for consideration before this Court on 14.06.2018 wherein Mr.Abhimanyu Rathod, learned advocate appearing on behalf of the petitioners whereas Mr.H.S.Munshaw, learned advocate appearing on behalf of the authority and after hearing, both the learned advocates requested the Court to dispose of the petition since the same is related to an award of compensation to the badly affected people. 7. Mr.Abhimanyu Rathod, learned advocate appearing on behalf of the petitioners has vehemently contended that the State authority has pronounced a scheme for awarding of compensation keeping in mind the badly affected area of Taluka Vav in devastated floods, and therefore, non-granting of compensation to the petitioners would frustrate the very object for which the Government has passed the Resolution. Mr.Rathod, learned advocate has further pointed out that an impression is sought to be created that certain malpractice has taken place in respect of awarding of compensation but then by inviting attention of this Court undisputedly this village is not the subject matter of such criminal proceedings. Mr.Rathod, learned advocate has specifically pointed out that which is not disputed by the authority's representative that no name of petitioners' village are figuring in first information report and as such the petitioners of this village have never been participant of any such malpractice nor any attribution is made against the petitioners which would disentitle them to deprive the compensation. Mr.Rathod, learned advocate has specifically pointed out that which is not disputed by the authority's representative that no name of petitioners' village are figuring in first information report and as such the petitioners of this village have never been participant of any such malpractice nor any attribution is made against the petitioners which would disentitle them to deprive the compensation. (7.1) Mr.Rathod, learned advocate has pointed out that the authority has relied upon some of the circumstances and has made an attempt to divert the attention of this Court but panchnama has been carried out the assessment has been made about the damage which took place to the properties of the petitioners and only after ascertaining this, orders with respect to compensation came to be passed and that is the very purport of the Resolution which has been passed by the State authority. It has also been contended that in the similar way these illiterate persons have been requested to sign the forms who have suffered in floods and in such a good faith all the petitioners have submitted the forms so as to available the benefit of compensation. It has further been pointed out by the learned advocate that there is no justification of any nature to deprive the petitioners from the compensation. Mr.Rathod, learned advocate has submitted that an attempt is made by the authority in present proceeding just to generalize the entire allegation which has nothing to do with present petitioners and when that be so, depriving of such benefit is nothing, but a clear example of violation of legitimate expectation principle, and therefore, it is desirably need in the interest of justice to direct the respondent authority to forthwith consider and grant the compensation amount in respect of terms of resolution which has been framed for that very purpose. (7.2) Mr.Rathod, learned advocate has further pointed out that here is a case in which the petitioners are demanding compensation which has already been awarded and no further scrutiny is required, but still however, depriving of such benefit is ipso facto violative of the resolution and its object. (7.2) Mr.Rathod, learned advocate has further pointed out that here is a case in which the petitioners are demanding compensation which has already been awarded and no further scrutiny is required, but still however, depriving of such benefit is ipso facto violative of the resolution and its object. Hence, in the alternative, learned advocate Mr.Rathod appearing for the petitioners has requested to direct the authority to reconsider the request of the petitioners and after proper scrutiny, appropriate amount may be awarded and for that purpose, a request is made to grant some benefits and requested ultimately to allow the petition. No further submissions have been made. 8. To meet with the stand taken on behalf of petitioners, Mr.H.S.Munshaw, learned advocate appearing and representing respondent authority has vehemently contended that in respect of this awarding of compensation, a serious malpractice has taken place and for which the responsible officers have been dealt with by launching prosecution against them. Mr.Munshaw, learned advocate has further contended that the detail affidavit is filed as to in which manner the Taluka Development Officer and DDO were dealing with an issue of compensation. On the contrary, one Taluka Development Officer Mr.B.D.Gadhavi has examined the relevant material but then it was found that there was a serious irregularity in respect of even ascertaining the damage and making of survey such incidence when cropped up in which in a clandestine manner without verifying exactly the damage and without taking any certification property at random the orders were passed. As a result of this, in the interest of public exchequer, it was not open for authority to just execute charity at the cost of public fund, and therefore, since the prosecution was launched, the petitioners were not entitled to have benefit of Government Resolution by way of compensation. By drawing the attention to this Court to some of the irregularities in making an inquiry and preparing panchnama in dealing with a form which are unsigned and irregular prepared, a contention is raised that in such a situation the authority was justified in not releasing the fund this being so no fault can be found with the authority in any way. Hence, Mr.Munshaw, learned advocate has requested the Court not entertain the petition or grant any relief. 9. Hence, Mr.Munshaw, learned advocate has requested the Court not entertain the petition or grant any relief. 9. Having heard learned advocates appearing for the respective sides and having gone through the material on record, prima facie, it has been undisputedly found that in a criminal case, the village in which the present petitioners are residing is neither named nor connected with the criminal investigation. It has also not been in dispute that these village people are not in any way concerned with commission of alleged irregularity and fraud is not appearing to have been alleged against the present petitioners. 10. The record of the petition also found as has not been disputed that while passing the order, and attributing there is no justification of whatsoever nature is reflecting nor any detailed reasons are assigned and earlier survey was already made which was signed by the authority itself, and therefore, when these village people are not at all concerned or connected in any form as is appearing to deny the benefit of Government Resolution is not an act which can be justified in the eye of law. 11. The Government Resolution is undisputedly framed for this very object of awarding compensation and the manner and method in which in what quantum the said compensation is to be paid is also prescribed, and therefore, when that be so to deprive the petitioners in any manner, such award of compensation, the act cannot be said to be just and proper rather it is arbitrary which reflects non-application of mind. 12. It is emerging from the record that a stand was taken by the authority of taking survey again which is found to be illogical in view of the fact that over a period of time, these badly affected persons survived themselves and to lead a comfortable life by managing the home affairs might have improved the situation at their cost, but that would not deprive them from benefit of Government Resolution, and as such, the stand taken by the authority requires to be considered in light of the aforesaid situation. 13. 13. It is emerging from the record that no fraud is alleged against the petitioners and no name of this village is reflecting in the FIR, however, some of the similarly situated persons have been extended the benefit of Government Resolution by making payment, though identically, they have also filled-in the form in the very same manner. 14. The further fact which is reflecting clearly emerging is that while denying the benefit, the communication which has been issued by the authority is not supported by any reasons. On the contrary, the orders said to be laconic and too general in nature which reflects a clear non-application of mind and as such keeping in view of the object of the Government Resolution and in view of the fact of damage to the petitioners' property and households undisputedly visible on record, the authority deserves to be directed to reconsider the case of the petitioners in view of the aforesaid peculiarity of the situation. Hence, the authorities are required to be directed to reconsider the case at the earliest, hence, this petition is disposed of on following terms which would meet the ends of justice: (i) The petitioners in the present scenario is directed to approach the authority once again within a period of two weeks from the receipt of writ of this order with a specific application with adequate material by pointing out damage to the property and household to the petitioner and make a request in writing. (ii) Upon such receipt of the request of the petitioners, the respondent authorities are directed to look in to the grievance of the petitioners independently and upon proper scrutiny of the relevant documents, the authorities are directed to reconsider the case of the petitioners and if material permits, the benefit may be extended to the petitioners by passing suitable orders, if falling within eligibility criteria. (iii) The authorities were examining the application of the petitioners shall look into every details of the petitioners and if found suitable necessary amount of compensation be paid to the petitioners. Of course, while dealing with the application, the authorities are expected to give equal treatment to those badly affected persons who have been awarded an amount of compensation. This is to be considered by the authority provided there are legitimate documents available on record with the petitioners. Of course, while dealing with the application, the authorities are expected to give equal treatment to those badly affected persons who have been awarded an amount of compensation. This is to be considered by the authority provided there are legitimate documents available on record with the petitioners. (vi) This exercise of re-examining the case of the petitioners in the light of aforesaid situation shall be undertaken within a period of three months from the date of receipt of the application along with writ of this Court and the authorities are directed to reconsider the grievance of the petitioners independently without being influenced by present order or the earlier orders, if any, and shall pass a reasoned order in accordance with law. If the material and the circumstances are permitting the authorities, the authorities are expected to take prompt action and shall see to it that this entire exercise can be completed within the aforesaid time schedule. (v) It is made clear that Court has not expressed any opinion on merit with regard to grant of the claim as prayed for in the petition and it is independently open for the respondent authorities to look into and examine, and thereafter only, shall pass a suitable reasoned order in the interest of justice. 15. With these observations, petition stands disposed of with no order as to costs.