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2020 DIGILAW 699 (JHR)

Natik Pandey v. Bharat Coking Coal Limited

2020-07-02

RAJESH SHANKAR

body2020
JUDGMENT : The present writ petition is taken up today through Video conferencing. 2. The present writ petition has been filed for issuance of direction upon the respondents to forthwith provide employment to the petitioner in lieu of acquisition of his land situated at Plot Nos.228 and 218, Khata No.76 Mouza No.82 which stand recorded in the name of his grandfather Late Bhuwan Pandey (Bhuneshwar). 3. The learned counsel for the petitioner submits that entire Nadkhurkee Basti Part-II consisting of 50 houses and one school building was acquired by the respondent-Bharat Coking Coal Limited (BCCL) for which 75 employments were sanctioned out of which 48 employments have already been given and 27 employments are still pending to be given to the displaced raiyats. The petitioner/his father time and again represented the respondent-authorities for providing employment under the Land Looser Scheme of the respondent-BCCL, however, the said matter was kept pending. It is further submitted that respondent-authorities are not permitted to discriminate the petitioner as compared to other displaced persons in the matter of granting employment which is violation of Articles 14 and 16 of the Constitution of India. It is also submitted that respondent-authorities acquired 1.16 acres of land which belonged to the joint family property of the petitioner for which 46 employments were sanctioned, however, only 35 employments were given to other three co-sharers and thereby denied any employment to the family members of the petitioner, despite the fact that he is entitled to get his share proportionately in the sanctioned package of employment. Learned counsel for the petitioner further submits that the claim of the petitioner/his father was for 11 employments in lieu of acquisition of 1.16 acres of land along with a building for which 46 employments were already approved, out of which only 35 employments were granted to other three co-sharers of the joint family property, namely, heirs of Late Santosh Mani Pandey, Late Kedar Nath Pandey and Late Gokul Pandey. However, not a single employment has been given to the legal heirs of Late Bhuwan Pandey who was the grandfather of the petitioner. The said claim is also substantiated from the fact mentioned in the noting of the competent authority of the respondent-BCCL dated 14th March, 1997. 4. On the contrary, learned counsel for the respondent-BCCL submits that the land of Nadkhurkee Basti No.II was acquired at the instance of respondent-BCCL. The said claim is also substantiated from the fact mentioned in the noting of the competent authority of the respondent-BCCL dated 14th March, 1997. 4. On the contrary, learned counsel for the respondent-BCCL submits that the land of Nadkhurkee Basti No.II was acquired at the instance of respondent-BCCL. Initially in the year 1997, a decision was taken to provide employment to the displaced persons and some of them were given employments. Subsequently, no further employment was given, as the same was found to be in deviation of R&R Policy of the respondent- BCCL and the said proposal was not in accordance with law. It is further submitted that petitioner is the resident of Plot No.602 and not the resident of Nadkhurkee village as claimed by him. The petitioner was encroacher upon the said plot having no title over the same which admittedly belonged to the respondent-BCCL. Previously, a writ petition being W.P.(C) No.6069 of 2007 was filed by the petitioner’s father, however, the same was dismissed by the Writ Court holding inter alia that the petitioner did not derive any right to continue with the unauthorized occupation over the public premises on the basis of purported agreement with the respondent-BCCL and that there was no bona fide dispute/ complicated question of title involved in the case. Aggrieved with the said order of the learned Writ Court, the petitioner’s father preferred L.P.A. No.195 of 2008 which was heard by learned Division Bench of this Court along with L.P.A. No.196 of 2008 filed by one Madan Pandey and vide common order dated 17th August, 2015, one employment was directed to be provided to the representatives of the said appellants on the condition that the land in dispute was to be vacated by them within one month, so that the same would be utilized by the respondent-BCCL. Learned counsel for the respondents-BCCL further submits that in spite of the order of the learned Division Bench, the petitioner’s father did not vacate the premises, and as such, the petitioner has no right to claim any employment under R&R Policy. It is also submitted that public employment cannot be sought on the basis of an agreement dehors the law. The encroachers have no right to claim employment or compensation putting pressure on the respondent-company. It is also submitted that public employment cannot be sought on the basis of an agreement dehors the law. The encroachers have no right to claim employment or compensation putting pressure on the respondent-company. In fact the cause of action arose in the year 1978 when the first representation was made before the respondent-company and the said cause of action cannot be kept alive for decades together by filing representations one after another. The agreement for providing employment was executed in the year 1978 and the execution of said agreement, which was dehors the law, cannot be sought after more than four decades, more so when such sanction of employment is in violation of Articles 14 and 16 of the Constitution of India as well as the R&R Policy of the respondent company. 5. In reply to the aforesaid argument of learned counsel for the respondent-BCCL, the learned counsel for the petitioner submits that the petitioner’s father did not vacate the premises since the respondent authorities had challenged the order passed in L.P.A. No.195 of 2008 before the Hon’ble Supreme Court by preferring Special Leave to Appeal, which was subsequently dismissed. The present case is not with regard to grant of employment to the petitioner for the Plot No.602 and, as such, the statement of the respondent-authorities that the petitioner is resident as well as encroacher upon Plot No.602 is not at all related with the present case. In fact, the present case relates to the land measuring an area of 1.16 acres along with residential house with a ‘Bari’ situated over Plot Nos.228 and 218 which had been acquired by the respondent- BCCL. 6. Heard learned counsel for the parties and perused the materials available on record. It appears that Nadkhurkee Basti-II consisting of 50 houses was acquired by the respondent-BCCL in the year 1978 and in lieu thereof 35 employments were earlier sanctioned, out of which 13 persons were provided employment after demolition of 11 houses. The rest of the claimants demanded more employments i.e., 62 employments against 39 houses in the year 1996 in lieu of remaining 22 sanctioned employments which could not materialize. It was decided as a package deal to provide 40 more employments in addition to the left over 22 sanctioned employments as the earlier package deal against 39 houses was inhabited by 62 independent family units and 1.82 acres of homestead land. It was decided as a package deal to provide 40 more employments in addition to the left over 22 sanctioned employments as the earlier package deal against 39 houses was inhabited by 62 independent family units and 1.82 acres of homestead land. The learned counsel for the respondent-BCCL has emphatically submitted that the decision of providing said employments was subsequently withdrawn as the same was found in violation of R&R Policy of the respondent-company as well as Articles 14 and 16 of the Constitution of India. 7. The petitioner has claimed for employment contending that three of the co-sharers of the joint family property have already been provided employment by the respondents-BCCL, however, no employment has been provided to the family members of the petitioner. It would be evident that petitioner’s father had earlier moved before this Court by filing a writ petition being W.P.(C) No.6069 of 2007, challenging the order of eviction passed by the Estate Officer in Eviction Case No.02 of 2005 which was affirmed by the learned District Judge, Dhanbad in Misc. Appeal No. 86 of 2005. The said writ petition was heard along with W.P.(C) No. 6049 of 2007. The learned Writ Court vide common order dated 1st April, 2008 dismissed both the writ petitions. However, L.P.A. Nos.195 of 2008 and 196 of 2008 filed against the order of learned Writ Court was disposed of by the learned Division Bench of this Court vide order dated 17th August, 2015 directing the respondents-BCCL to provide one employment each to the family members of the said appellants subject to the condition that they would vacate the land in question within one month so that the same might be utilized by the respondent- BCCL. It was also observed by the learned Division Bench in the said order that the same would not be taken as precedent in other cases of similar nature. It has been contended by the learned counsel for the petitioner that the respondents-BCCL also preferred Special Leave to Appeal before the Hon’ble Supreme Court against the order passed by the learned Division Bench in aforesaid Letters Patent Appeals, however, the same was also dismissed and, thus, the order of the learned Division Bench has attained finality. The learned counsel for the respondents- BCCL has contended that since the petitioner/his father did not vacate the said land, there is no question of providing any employment. 8. The learned counsel for the respondents- BCCL has contended that since the petitioner/his father did not vacate the said land, there is no question of providing any employment. 8. The specific stand taken by the respondent-BCCL is that the petitioner/his father did not vacate the land in question has not been denied by the petitioner, rather it has been contended on his behalf that since the matter was pending before the Hon’ble Supreme Court, the said land was not vacated. Much emphasis has also been given by the learned counsel for the petitioner on the contention that the present matter relates to 1.16 acres of land situated over Plot Nos. 228 and 218 and the earlier writ petition being W.P.(C) No. 6069 of 2007 and L.P.A No. 195 of 2008 have no concern with the present issue. However, the said submission has not been substantiated by putting on record sufficient evidence. The plot numbers has not been mentioned either in the order passed in W.P.(C) No. 6069 of 2007 or in L.P.A No. 195 of 2008. It was the onus of the petitioner to bring on record the all sufficient documents to substantiate his contention, and such, I find no substance in the argument of the learned counsel for the petitioner that the present case has no concern with the order passed by the learned Writ Court and Division Bench in the earlier round of litigation. Even if the said argument of the learned counsel for the petitioner is accepted, I am of the view that the petitioner has failed to show that he was vigilant enough for his claim, rather he has placed on record only one application of the year 2018 seeking employment and has not sufficiently explained as to why no such claim was made for more than 22 years. The petitioner has sought relief under equitable writ jurisdiction. There is a well-known maxim of equity “vigilantibus non dormientibus, aequitas subvenit” which means equity comes to the aid of those who are vigilant, not those who sleep over their rights. The purpose of giving employment to the persons whose land have been acquired is to rehabilitate them and not to deprive them of their right of livelihood. The said object is achieved if such employment is extended within reasonable period, however, the same cannot be fulfilled by providing rehabilitation employment after expiry of reasonably long period. The purpose of giving employment to the persons whose land have been acquired is to rehabilitate them and not to deprive them of their right of livelihood. The said object is achieved if such employment is extended within reasonable period, however, the same cannot be fulfilled by providing rehabilitation employment after expiry of reasonably long period. An employment provided under rehabilitation and resettlement policy can be compared to that of compassionate employment as known in service jurisprudence and, thus, the same cannot be claimed at a belated stage. In the facts of the present case if the petitioner’s claim is allowed at this juncture, it would lead to multiplicity of stale claims by different persons and the age old decision which has already been closed being in violation of R&R Policy of the respondents-BCCL would re-open. Any benevolent policy to provide relief to the sufferer is framed in context of the condition prevailing at the relevant point of time. 9. In the case of Butu Prasad Kumbhar & Ors. Versus Steel Authority of India and Ors. reported in (1995) Supp 2 SCC 225, the Hon’ble Supreme Court has held 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 farreaching 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. 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.” 10. In view of the aforesaid discussions, it may be construed that the scheme of rehabilitation employment cannot be allowed to perpetuate for unlimited period. The grant of employment under rehabilitation scheme after such a long period would certainly be violative of Article 14 of the Constitution of India. Appointment on the ground of rehabilitation cannot be considered as an alternative source of recruitment or a scheme for reserving future vacancies for minor children of the displaced persons. Curiously enough, the petitioner himself has mentioned his age in the present writ petition filed in the year 2019 as 23 years and, thus, in the year 1997 his age would be one year and obviously there is no question of his being entitled for employment in the year 1997 i.e., year in which the respondent-authorities had allegedly sanctioned 46 employments to the displaced persons, though the same was subsequently found to be against the R&R policy of the respondent-company. 11. In the facts and circumstance, I find no merit in the present writ petition and the same is accordingly dismissed.