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2019 DIGILAW 832 (CAL)

Kalicharan Layak v. Coal India Ltd.

2019-08-30

AMRITA SINHA

body2019
JUDGMENT : The reasoned order dated 13th May, 2014 passed by the General Manager, Satgram area, Eastern Coalfields Limited (ECL) whereby the claim for employment of the writ petitioner under the Land Loser Scheme has been turned down is under challenge in the instant writ petition. The ground for rejection is that the petitioner did not satisfy the norms of employment under the Land Loser Scheme which requires sale of minimum two acres of land by the land owner. The father and uncle of the petitioner were owners of certain plots of land measuring about 2.06 decimals. In response to a Scheme floated by ECL, the father and uncle of the petitioner sold out their plots of land to ECL by registered deed in the year 2005. The deed of sale was registered in the office of the Additional Sub-Registrar, Raniganj, Burdwan. ECL by a communication dated 2nd September, 2005 requested the Officer- in-Charge of the Nimcha police station in district Burdwan to prepare a police verification report in respect of the petitioner as the same was required for offering employment under the Land Losers Scheme in ECL. As the petitioner did not receive any communication from ECL with regard to his appointment or with regard to the police verification report he made a representation before ECL demanding justice for him. Alleging non-consideration of the said representation the petitioner filed a writ petition before this Court being W.P No. 6979 (W) of 2012. The said writ petition was heard and disposed of by an order dated 5th September, 2012 whereby the Court directed ECL to consider and dispose of the representation which was made by the petitioner within a stipulated time. In compliance of the order passed by the Court a reasoned order was passed on 12th November 2012 wherein the General Manager, Satgram area, ECL mentioned that it was found that the numbers and area of the plots as mentioned in the certified deed and the deed enclosed along with the employment proposal were different and raised doubts. For clarification of the doubts relating to the number, area and the owners of the plots the matter was referred to the Vigilance Department of ECL. The Vigilance Department referred the same to the CBI, Kolkata for further investigation in the matter. For clarification of the doubts relating to the number, area and the owners of the plots the matter was referred to the Vigilance Department of ECL. The Vigilance Department referred the same to the CBI, Kolkata for further investigation in the matter. It was informed that the prayer of the petitioner for providing employment could not be considered at that stage as the investigation relating to the genuineness of the deed was yet to be established from an independent investigation agency and the report was awaited. As no report was forthcoming from the CBI for a considerable period of time the petitioner filed another writ application before this Court being WP 5 of 2014. A report was filed by the CBI in the said writ petition. In the said report it was mentioned that no prosecutable case can be discovered on the basis of the information furnished by the Vigilance Department of the ECL. It also mentioned that the CBI decided not to take up the matter in view of its limited infrastructure and its involvement in many other investigations. The Court disposed of the writ petition by directing the General Manager, ECL to consider the petitioner's application for employment under the Land Losers Scheme afresh, in the light of all materials furnished by the petitioner and the other materials that may be available with ECL. The respondents were directed to communicate the reasoned order to the petitioner within a stipulated time frame. Pursuant to the order passed by the Court the prayer of the petitioner was considered and the reasoned order dated 13th May, 2014 was passed rejecting the prayer of the petitioner once again. The petitioner is aggrieved by the said reasoned order and the same is impugned in the instant petition. The petitioner submits that the reasoned order mentions that the plot no. 406 is not under the approved land schedule of the Competent Authority. Had the land not been approved by the Competent Authority then the same ought not to have been purchased by ECL. The plot in question was purchased by ECL only because the same was approved by the Competent Authority and further the same was/is in possession and utilised by ECL. The second ground for rejection mentions that to cover up/suppress the actual fact the predecessor in interest of the petitioner and the uncle of the petitioner have changed the plot no. The plot in question was purchased by ECL only because the same was approved by the Competent Authority and further the same was/is in possession and utilised by ECL. The second ground for rejection mentions that to cover up/suppress the actual fact the predecessor in interest of the petitioner and the uncle of the petitioner have changed the plot no. 406 and included 4 other plot numbers and then submitted the same for getting the employment. After searches from the office of the Block, Land and Land Reforms Officers (BL&LRO) at Raniganj it was found that the said plots did not belong to the predecessor in interest of the petitioner and they were not the owners of the said plots. The reasoned order mentions that the predecessor in interest of the petitioner and his uncle tacitly, intentionally and knowingly made the changes in the employment file and tried to commit fraud. As the rest plots which were sold by the petitioners were less than 2 acres the petitioner was ineligible for being offered an employment as the minimum land that is required to be sold is 2 acres. The petitioner submits that neither his predecessor in interest nor his uncle were the owners of the plots of land which according to ECL were mentioned in his employment proposal. It has been submitted that the land which was sold to ECL was plot no. 406 and not the four plots which were mentioned in his employment proposal. The petitioner submits that the application form for employment was signed by his father and uncle but the same was filled up by the officers of ECL. He further submits that in the reasoned order it is mentioned that the Area Survey Officer of the Satgram area from the management side produced the certified copy of the deed obtained from the Registrar and pointed out the plots which were purchased from his father and his uncle. The plot numbers are mentioned in the reasoned order. Plot no. 406 comprising 0.69 decimal appears to have been purchased by ECL, but on comparison of the deeds with the employment proposal it appears that four plots of land have been included in place and instead of plot no. 406. The petitioner submits that he is not aware as to how the said plots have been entered in the document relating to his employment proposal. 406. The petitioner submits that he is not aware as to how the said plots have been entered in the document relating to his employment proposal. He submits that as the Area Survey Officer has concluded that 2.06 decimal land in total was purchased from the father and uncle of the petitioner accordingly he is eligible for being appointed under the land loser scheme. The petitioner relies upon the statement made by the respondents in their affidavit in opposition wherein a table has been prepared indicating the lands which were sold by the father and uncle of the petitioner and purchased by ECL. It appears from the said table at page 8 of the affidavit in opposition that plot no. 406 was purchased by the respondents. The respondents have categorically admitted that they have purchased 2.06 decimal of land from the predecessor in interest and uncle of the petitioner in the year 2005. The petitioner further relies upon the statement made in the affidavit in opposition that the lands which were purchased from the father and uncle of the petitioner were used by ECL between 1972 and 1984. The petitioner relies upon an office order of ECL dated 25th November, 2004 regarding pending employment cases of land losers. It mentions that the Competent Authority has reconstituted the Committee dealing with the employment cases of land losers. The Committee proposed that if the minimum area of land acquired is not less than 1 acre and not more 3 acres, one person may be offered employment irrespective of the number of families owning the land. The said order further mention that employment will be offered to the nominee of the land owner of each acre of land, where the land had been used/damaged up to 31st December, 1984. The petitioner submits that the respondents have categorically admitted in their opposition that the lands in question were used between 1972 and 1984. He submits that in view of the categorical submission of the respondents that the lands in question were used prior to 1984 and the area of land being more than 1 acre accordingly he is eligible for being employed under the land loser scheme. The petitioner relies upon the judgment delivered by the Hon'ble Division Bench in the matter of Eastern Coalfields Limited vs. Sk. The petitioner relies upon the judgment delivered by the Hon'ble Division Bench in the matter of Eastern Coalfields Limited vs. Sk. Nasiruddin reported in 2012 (2) CHN (Cal) 100 wherein the Court held that the right of employment of the land losers or his nominee to be treated as approved once the Company took the land and started using it for extracting coal. He further relies upon an unreported decision of this Court dated 13th December, 2012 passed in GA no. 3038 of 2012, in connection with APOT no. 536 of 2012 arising out of WP no. 1640 of 2004 Eastern Coalfields Limited vs Smt. Dipali Dawn (Rakshit) & Ors. wherein the Court affirmed the decision of the learned Trial Judge and directed ECL to give appointment with immediate effect. The petitioner further relies upon an unreported decision dated 3rd May, 2019 passed by a learned Single Judge of this Court in WP no. 1279 of 2014 (Sk. Amjad Mazi vs Coal India Limited & Ors.) wherein the Court directed Coal India Limited to give employment to the petitioner in case the police verification report and medical test was in his favour. The learned advocate appearing on behalf of ECL submits that the petitioner has committed fraud by changing the plot numbers in the documents relating to the proposal for employment of the petitioner. He submits that the petitioner was aware of the fact that he did not possess the minimum requirement of land that was to be acquired for the purpose of providing employment and accordingly he had changed the plot numbers to increase the area of the acquired land. It has further been submitted that assuming that plot no. 406 was purchased from the father and uncle of the petitioner the same not being an approved land cannot be considered for the purpose of measuring the quantum of land required for providing employment. He also submits that plots of land in question jointly belonged to his father and uncle. The petitioner not being the linear decedent of his uncle was not eligible for employment. The learned advocate lays stress upon the application form for land losers wherein the plots which did not belong to the father and uncle of the petitioner were incorporated in place and instead of the lands which were actually sold. The petitioner not being the linear decedent of his uncle was not eligible for employment. The learned advocate lays stress upon the application form for land losers wherein the plots which did not belong to the father and uncle of the petitioner were incorporated in place and instead of the lands which were actually sold. He submits that according to the land loser scheme a minimum quantum of 2 acres of land is required for providing employment. There are disputed questions of fact involved in the instant petition which cannot be decided by way of invoking the extraordinary writ jurisdiction of this Court. He submits that to take the advantage of the Scheme the father and uncle of the petitioner falsely mentioned the lands of other persons in the application form for employment. The father and uncle of the petitioner have manipulated the sale deed by inserting the lands of other persons. The ECL management has not signed the sale deed. It has however been admitted that in the original sale deed plot no. 406 has been mentioned. As there is very large scale of fraud involved in the land matter accordingly the management has decided not to provide employment in cases of fraud. He submits that till 31st December, 1984 there was a provision for providing one employment in lieu of 1 acre of land but after 1st January, 1985 the policy has been changed and presently minimum 2 acres of irrigated and 3 acres of non- irrigated of land are required for providing one employment. It has been contended that the petitioner has approached this Court at an extremely belated stage of about 28-40 years after the land was utilised by ECL. It has been submitted that the writ petition is not maintainable as no right accrued in favour of the petitioner. The respondents have relied upon the decision delivered in the case of Mani Subrata Zai & Ors vs. State of Haryana & Ors. reported in (1977)1 SCC 486 on the proposition that no one can ask for a Mandamus without a legal right. The learned advocate also place reliance upon the judgment delivered by the Supreme Court in the matter of Punjab State Electricity Board & Ors. reported in (1977)1 SCC 486 on the proposition that no one can ask for a Mandamus without a legal right. The learned advocate also place reliance upon the judgment delivered by the Supreme Court in the matter of Punjab State Electricity Board & Ors. vs. Malkait Singh reported in JT 2004 (8) SC 526 wherein it has been held that a scheme for giving appointment on priority basis was only in the nature of concession. There cannot be a vested right to the post when the applicant did not fulfil the necessary requirement under the scheme. The respondents pray for dismissal of the writ petition on the ground of delay relying on the principle laid down by the Hon'ble Supreme Court in the case of State of Maharashtra vs. Digamber reported in (1995) 4 SCC 683 and the decision delivered by a Division Bench of this Hon'ble Court in the case of Sri Manik Bouri vs. Coal India Limited & Ors. in APO no. 263 of 2011, WP no. 1096 of 2008 on 30th July, 2012. I have heard the submissions made on behalf of both the parties and have perused the documents relied upon by them. The respondents have incorporated Table-1 at page 8 of their affidavit in opposition wherein the respondents have admitted that the father and uncle of the petitioner sold 2.06 decimals of land to the respondent authorities by registered deed no. 854 of 2005. The respondents at page 9 of the opposition in Table-2 state that the plot no. 406 was neither purchased nor approved by the competent authority for the purpose of water management of the Colliery. The respondents have admitted that the mine existed prior to nationalisation of the coal mines and they started using the lands in the year 1972. The respondents have further admitted that the lands in question were used in between 1972 and 1984. From the impugned reasoned order it appears that the claim for employment of the writ petitioner was not considered as the petitioner allegedly did not satisfy the norms of employment under the Land Loser Scheme which required sale of minimum 2 acres of land from the land owners. From the impugned reasoned order it appears that the claim for employment of the writ petitioner was not considered as the petitioner allegedly did not satisfy the norms of employment under the Land Loser Scheme which required sale of minimum 2 acres of land from the land owners. The petitioner relies upon an Office Order of the Eastern Coalfields Limited dated 25th November, 2004 wherein it has been indicated that if the minimum area of land acquired is not less than 1 acre and not more than 3 acres, one person may be offered employment, irrespective of the number of families owning the land. It was further mentioned that employment will be offered to the nominee of the land owner for each acre of land, when the land has been used/damaged upto 31st December, 1984. For the period 13th August, 1983 to 31st December, 1984 for one employment against 1 acre of land five years ownership will be required for the land, on date of use/damage. From 1st January, 1985 onwards for eligibility of one employment minimum 2 acres of land will be required. The petitioners have categorically submitted that the document annexed at page 83 of the affidavit in opposition is the employment proposal form indicating the plots of land and the quantum of land that was purchased from the land losers. The said proposal form was not filled up by the land losers. The land losers had merely put their signatures on the said document. He further admits that some of the lands mentioned in the application form do not belong to his predecessors in interest. The petitioner admits that the family of the petitioners were not the owners of the disputed plots of land. Regardless of the fact whether the disputed plot of land was purchased or not, as the admitted quantum of land purchased by ECL exceeded one acre, accordingly, as per the office order of ECL dated 25th November, 2004 the petitioner is entitled for being appointed under the Land Loser Scheme. The respondents are only disputing the factum of sale of the plot no. 406. The sale of the rest plots of land is admitted. There is a provision for giving employment to the nominee of the land loser if they have sold more than one acre of land as per Office Order dated 25th November 2004. The respondents are only disputing the factum of sale of the plot no. 406. The sale of the rest plots of land is admitted. There is a provision for giving employment to the nominee of the land loser if they have sold more than one acre of land as per Office Order dated 25th November 2004. The plots of land which have admitted to have been sold and utilised by the respondents between 1972 and 1984 is more than one acre. In such circumstances the prayer of the petitioner for being appointed on compassionate ground may be considered in accordance with the said Office Order. The Hon'ble Division Bench in the matter of Sk. Nasiruddin (supra) categorically held that the right of employment of the land loser or his nominee has to be treated as approved the moment the Company took the land and started using it for extracting coal. Admittedly the Company has taken and utilized the land of the predecessors in interest of the petitioner and as such the right for employment has accrued in favour of the land loser. The point of delay will not be applicable in the facts and circumstances of the instant case inasmuch as the deed of sale was executed in the year 2005 and since there after the petitioner is fighting one after another litigation praying for employment. There does not appear to be any delay or lapses on the part of the petitioner to pursue his right. Since a question of fraud has been raised the respondent authorities are entitled to verify whether the plots of land as mentioned by the petitioner has actually been sold by his predecessors in interest and purchased by the respondents. If there is documentary evidence of sale and utilisation of the plots then the said respondent shall take steps for consideration of the prayer of the petitioner for giving appointment under the land loser scheme. The said respondents shall take steps to verify the genuineness of the sale deeds within a period of eight weeks from the date of communication of a copy of this order. If the sale deeds appear to be genuine the respondents shall take steps for giving appointment to the petitioner within a period of four months thereafter upon completion of all formalities. W.P No. 553 of 2014 is disposed of. If the sale deeds appear to be genuine the respondents shall take steps for giving appointment to the petitioner within a period of four months thereafter upon completion of all formalities. W.P No. 553 of 2014 is disposed of. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.