CWP No.19704 of 2003 (O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.19704 of 2003 (O & M) Reserved on: 21.05.2014 Date of decision: 03.07.2014 Rati Ram and others ...Petitioner(s) Versus State of Haryana and others ...Respondent(s) CORAM: HON'BLE Mr.JUSTICE G.S.SANDHAWALIA Present: Mr.Gaurav Singh Hooda, Advocate, for the petitioneRs.Mr.Kshitij Sharma, AAG, Haryana.
Mr.Ashish Kapoor, Advocate, for respondents No.6 to 8.
1.
To be referred to the Reporters or not?.
2.
Whether the judgment should be reported in the Digest?.
G.S.SANDHAWALIA, J.
The present judgment shall dispose of 3 writ petitions i.e.CWP Nos.19704 of 2003, Rati Ram and others versus State of Haryana and otheRs.CWP No.13621 of 2004, Jaipal Singh and others versus State of Haryana and others and CWP No.19691 of 2005, Nepal Singh and others versus State of Haryana and otheRs.since common questions of facts and law are involved in all the writ petitions.
The facts are being taken from CWP Nos.19704 of 2003, Rati Ram and others versus State of Haryana and otheRs.The present writ petition has been filed by 45 petitioners challenging the order dated 04.09.2003 (Annexure P-14) passed by the Gupta Shivani 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 2 General Manager of respondent-Indian Oil Corporation (hereinafter referred to as 'IOC') whereby, their claim for seeking employment to one member of every displaced family was rejected on the ground that as per the policy dated 03.02.1986 (Annexure P-3).the Union of India had withdrawn any such offeRs.The pleaded case of the petitioners is that they are residents of village Piyala and village Asawati, District Faridabad and notification under Section 4 of the Land Acquisition Act, 1894 (in short 'the Act') was issued on 27.12.1989 for acquisition of 637 kanals and 9 marlas for setting up a Lube Oil Blending Plant by the Corporation.
The same was followed by notification dated 12.12.1990 under Section 6 of the Act and the award was passed on 12.12.1991 (Annexure P-7).The land owners had protested against the acquisition and the local administration had given the assurance that one member of the family of the oustees would be provided a job in the plant and there was already a policy of the Central Government to provide a job in case the land is acquired for any public undertaking.
Reliance is accordingly placed upon the policy dated 03.02.1986.
Reference was made to inter office memo of the corporation dated 11.05.1987 (Annexure P-4) wherein, preference in employment was to be given to those whose land had been acquired.
Reference was made to letter dated 14.09.1989 (Annexure P-5) issued by the Director of Employment, Haryana to the Sub Divisional Officer (Civil).Ballabgarh, District Faridabad wherein, the list of applicants was asked for to get them appointed in the bottling plant at Piyala.
It was pleaded that vide letter dated 06.09.1991, the Director of Employment, Haryana had written that the employment exchange should give preference to sponsor the name of the member of the family whose land had been acquired for industrial purposes.
The petitioners had agitated Gupta Shivani 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 3 for their grievances and a settlement had also been arrived at between the officials of the Corporation and the representatives of the land owners and in the meeting held on 23.07.2002, the Corporation had given assurance to give employment to the petitioners or members of their families.
However, the officials of the corporation had backed out of the above mentioned settlement and several representations were made but only one letter of appointment had been issued to one Sh.
Kok Raj.
That Bharat Petroleum Corporation LTD.(hereinafter referred to as 'BPCL') had also acquired land in the village Piyala.
About 150 persons were given appointment in the LPG plant and said Kok Raj's appointment letter was attached.
The petitioners had approached this Court in CWP No.6978 of 2003, Rati Ram and others versus State of Haryana and others and directions had been issued to file a comprehensive representation to the authorities concerned which was to be disposed of within 3 months in the light of the relevant law, rules, instructions and after giving opportunity of hearing to the petitioners by passing a speaking order.
Resultantly, the said orders were passed.
Reliance was placed upon an order passed by a single Judge of the Madras High Court and accordingly, it was pleaded that the plant had started functioning and the respondents had declined to grant the necessary relief.
In the written statement filed by the respondent-corporation, it was pleaded that no preferential treatment could be accorded to the petitioners and the posts would not be reserved for persons whose land had been acquired since they had got compensation for the land and were not placed in any disadvantageous position.
The petitioners had no legal right to seek a writ of mandamus for appointment and IOC was having excessive man power in its various plants and units and no fresh recruitment had been Gupta Shivani 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 4 made.
The plant was highly sophisticated, computerized and required less man power.
The Single Bench judgment of the Madras High Court had been stayed on 06.10.2003.
That any assurance given by the local administration was not binding on the answering respondent.
The policy dated 03.02.1986 of providing formal and non-formal appointment stood withdrawn and the basic responsibility of initiating such schemes was that of the State Government.
The project authorities were only to assist the concerned State Government and help the displaced families to set up useful vocations like poultry farms and animal husbandry.
The compensation had been paid which had been further revised by the Reference Court and appeal for enhancement of compensation was pending before this Court.
Annexure P-5 was for the bottling plant of BPCL and not for Asaoti and the letter had been issued prior to the notification.
It was denied that there was any settlement regarding the employment of persons and in fact the Corporation had to file a writ petition as the villagers had blocked the entry of the plant and with the intervention of the Court, the functioning of the plant started.
The assurance was only a suggestion by the District Administration but no settlement was arrived at and if the Bharat Petroleum Corporation LTD.had given employment, it was not binding on the answering respondent.
An additional affidavit was also filed by Sh.
Vishal, Manager (Employee Relations) to plead that a sum of 1.68 crores was paid and there was no mention for providing any employment to the land losers nor any commitment had been given to the State Government.
As per the Central Government Policy dated 03.02.1986, there is no provision of providing employment to the land owners whose land had been acquired.
Reference was made to the Reference Court judgment and the appeals pending before Gupta Shivani 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 5 this Court and it was mentioned that the judgment of the Madras High Court had been reversed by the Division Bench.
Counsel for the petitioners has accordingly argued that the Corporation was under legal obligation to provide employment to the petitioners in pursuance of the Central Government policy dated 03.02.1986 and an assurance had been held out in the meeting dated 23.07.2002.
Counsel for the Corporation, on the other hand, has submitted that there was no such assurance given by the Corporation and they are under no legal obligation to provide any employment.
There was no promissory estoppel and in the absence of any legal right, the writ petition was not maintainable.
Reference was made to the policy to submit that the Project Authorities were only to impart training and suitable education to the awardee families eligible for the rehabilitation assistance and the offer of employment to every one member of dispossessed family was to be withdrawn and accordingly, reliance was placed upon the judgment of the Apex Court in Butu Parsad Kumbhar versus Steel Authority of India Ltd., 1995 (Suppl.2) SCC225 The question that thus arises for consideration before this Court is that whether the respondent-corporation held out any promise to the petitioners for providing any formal employment or whether the corporation is bound by some policy/statutory regulations whereby, it is under a legal obligation to provide public employment in lieu of the land which it has acquired.
The sole argument of the petitioners revolves around the policy of the Union of India dated 03.02.1986 whereby, the Government of India, Ministry of Industry decided that where land acquisition became inevitable, Gupta Shivani 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 6 certain principles were to be followed for acquisition of land which included surrendering of surplus lands, compensation to be paid by streamlining the procedure for payment and rehabilitation of the persons whose land was acquired.
The rehabilitation clause provides that it would be only applicable to those persons whose land or home-steads were acquired provided the said persons were themselves cultivating those lands or residing therein and the absentee landlords were not entitled to any rehabilitation assistance.
Alternate sites were to be provided for such displaced persons who are to be given infrastructural amenities also.
Under Clause (iv).the list of awardee families eligible for rehabilitation assistance were to be imparted suitable education and training was to be given to them and they were to be considered for employment of the project subject to the availability of vacancies.
The Project Authorities were to meet the cost of training for the persons who were selected from the evicted families.
It was further provided that such training is given at the cost of the public sector undertakings and it shall not be presumed to be a commitment for ultimate employment in the undertaking concerned and the main idea was to enable some members of the evictee families to qualify themselves for employment and compete for the same alongwith otheRs.Rather, under clause (v).any formal or informal offer of employment to the dispossessed family was to stand withdrawn.
The relevant clauses (iv) and (v) of the Rehabilitation Clause read thus:- “iv) The Project authorities should be directed to examine the list of awardee families eligible for rehabilitation assistance received from the Rehabilitation Cell with reference to their educational attainments and arrange for imparting to them suitable Gupta Shivani 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 7 education and training to equip them to be considered for employment in the project, subject to availability of vacancies.
Such education and training should be imparted through the existing and available training institutions of the State and the Central Governments.
The project authorities may meet the cost of training of the persons who are selected from among the evictee families.
If suitable disciplines or faculties required for the needs of the public sector undertakings are not available with the existing training institutions, the project authorities should undertake to fund and start such training courses which will equip candidates for employment in the public sector undertakings.
Such training given at the cost of public sector undertakings should not be presumed to be a commitment for ultimate employment in the undertaking concerned.
The main idea is to enable some members of the evictee families to qualify themselves for employment and compete for the same along with the otheRs.(v) In the context of the urgent necessity of public sector enterprises operating at commercially viable levels and generating adequate internal resources, over manning has to be guarded against.
Any undertaking, formal or informal, in regard to offer of employment to one member of every dispossessed family in the project will stand withdrawn.
However, with a view to encouraging the dispossessed families taking to useful vocations like poultry farming, animal husbandry etc.the project authorities will assist the concerned State Governments in organising and financing such activities.
The basic responsibility of initiating such schemes will be that of the State Governments.”
.
Thus, from the above said clauses, nothing could be discerned Gupta Shivani 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 8 as to whether there was any policy which could categorically be enforceable and which specifically provided that employment was to be given to each and every member of the family whose land was acquired.
Even the letter dated 11.05.1987 (Annexure P-4) would only go on to show that some inter office memo in pursuance of the instructions dated 03.02.1986 was circulated providing for training to the persons whose land was acquired.
Rather clause 5 of the said office memo would go on to show that there was a stipulation that the training would not be presumption for guarantee for ultimate employment.
The relevant clause reads thus:- “5.
The training as above shall not be presumed to be a guarantee for ultimate employment.
The main idea of the training is to enable the identified members of the evicted families to qualify themselves for employment and compete for the same alongwith the otheRs.against regular vacancies.
Identified persons as mentioned above will have to fulfill the requirements of the post relating to qualification, age etc.Since it is not the intention to dilute the prescribed requirement.”
.
Even as per clause 6 of the said letter, the recruitment procedure and the vacancies were to be notified to the concerned employment exchange with a request to sponsor the land owners candidates alongwith others and preference was to be given to the said persons which would be clear from a reading of the said clause, which reads thus:- “6.
In accordance with the prescribed recruitment procedure vacancies as and when arising shall be notified to the concerned employment exchange with the request to sponsor the land owners candidates alongwith otheRs.While considering the list sponsored by the employment exchange those identified persons Gupta Shivani 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 9 from amongst the land losers as mentioned above will be considered and all things being equal preference shall be given to them.
Out of the identified and trained land owners sponsored by employment exchange and found suitable by applying above yard sticks, those whose land holdings have been fully acquired shall be given preference in employment vis-a-vis those whose land has only been partially acquired for the project.”
.
Nothing has been placed on record to show that the State Government took any such decision alongwith the Corporation whereby, any promise was held out or a decision taken which would show that the principle of promissory estoppel could be invoked in favour of the petitioneRs.The letters referred to which are dated 14.09.1989 (Annexure P-5) and 06.09.1991 obviously pertain to the correspondence with the Bharat Petroleum LTD.whose plant was situated at village Piyala and that is the categorical case of the IOC and, therefore, no reliance can be placed upon the said communications.
Counsel for the IOC was well justified in submitting that the meeting held on 23.07.2002 with the President of Kisan SanghaRs.Vahint and the SDM, Palwal and the SDM, Ballabgarh alongwith the officials of the Corporation could not bind the Corporation to give permanent jobs only in view of the fact that there was some law and order problem prevalent on the site.
It was only a suggestion by the local administration and was never a condition precedent for acquisition of land which already stood acquired way back in the year 1989-91 since the Section 4 notification was dated 27.12.1989 and the award was passed on 12.12.1991.
The agitation thus was almost a decade later and the Corporation has, in its reply, submitted that there was a difficulty in Gupta Shivani approaching the site, due to which they had also to seek the assistance of 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 10 this Court so that the administration would provide necessary help.
Nothing has been shown to this Court as to what was the right of the petitioners by which a writ of mandamus can be issued directing the Corporation to provide employment to each and every member of the family whose land was acquired and in the absence of any specific policy, the same cannot be enforced.
At the cost of repetition, it is settled principle of law that in the absence of any such policy, no such mandamus can be issued.
It may be again noticed that the petitioners have also not placed on record any such commitment made by the Corporation at the time of the acquisition of the land by which it could be held that principle of promissory estoppel could be invoked against the Corporation.
Reference can be safely made to the observations of the Apex Court in Bihar Eastern Gangetic Fishermen Cooperative Society LTD.versus Sipahi Singh, AIR1977Supreme Court 2149 wherein, it was held that it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the Statute to enforce its performance in order that mandamus may be issued to compel the authorities to do something.
The relevant observations read thus:- “Re : Contention No.3 :-This contention is also well founded and must prevail.
There, is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation.
The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their Gupta Shivani 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 11 jurisdiction.
It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.
(See Lekhraj Satramdas, Lalvani v.
Deputy Custodian-cum- managing Officer & Ors.(1) Dr.
Rai Shivendra Bahadur v.
The Governing Body of the Nalanda College(2) and Dr.
Umakant Saran v.
State of Bihar & Ors.(3) In the instant case, it has not been shown by respondent No.1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform.
All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also, not binding and enforceable, Accordingly, we are clearly of the opinion that respondent No.1 was not ,entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same.”
.
That reliance in the writ petition to the order passed in similar circumstances by the Madras High Court is also of no avail since the Corporation has now placed on record the judgment of the Division Bench whereby, the appeal of the corporation i.e.Writ Appeal No.1749 to 1762 of 2003, The General Manager, Southern Region, Indian Oil Corporation LTD.vs.P.Ganesan and others was allowed on 29.04.2008 and the said directions were set aside.
The Single Judge in the said case had allowed the writ petition and directed the respondent-Corporation to provide employment to the petitioners therein on account of the acquisition of land for the LPG bottling plant at Athipattu.
The Division Bench in P.
Gupta Shivani Ganesan's case (supra) held that the land acquisition is a self contained 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 12 code and provides for procedure to be followed for acquisition for the lands and compensation is to be paid as per the market value.
Solatium also is to be granted @ 30% of the market value apart from interest from the date of publication of the notification under Section 23(1)(a) of the Act.
It was also held that nothing could be shown as to any promise to provide employment had been made by the appellants and simply because Revenue Divisional Officer had issued Forums calling for the details to enable the land owners to get employment with the appellants could not be a basis for raising the plea of promissory estoppel.
Similar is the position herein.
The principle of law was laid down by the Apex Court in Butu Prasad Khumbar's case (supra).In the said case, the members of the families who were displaced due to setting up of Rourkela Steel Plant and had been given market value of the land acquired of nearly 20,000 acres.
The claim of the petitioners therein was that each and every family member who was displaced should be provided employment was rejected on the ground that the land owners were not deprived of the land without following the procedure established in law and they were paid compensation for it.
The Government had paid market value for the land acquired and even the right to livelihood would not extend to providing employment to every member of each family displaced in consequence of the acquisition of land and it would be stretching Article 21 without any regard to its scope and ambit.
The relevant observations of Butu Parsad Khumber's case (supra) read thus:- “6.
The constitutional challenge based on Article 21 does not appear to have any substance.
In Olga Tellis (supra) it was observed by this Court that Gupta Shivani 2014.07.10 12:47 the concept of right of life conferred was wide and I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 13 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 is 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 otherwise.
Acceptance of such a demand would be against Article 14.”
.
Gupta Shivani 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 14 The said view was reiterated by a Full Bench of Allahabad High Court in Ravindra Kumar versus District Magistrate and otheRs.2005 (2) RCR (Civil) 427.
The challenge therein was to Government orders/circulars providing employment to one member of the family whose land had been acquired.
The Full Bench held that there was no provision which provided that person would get a job in addition to the compensation and held that further jobs cannot be given in public sector undertakings as it would be putting greater burden on the tax payeRs.Closer home, a Division Bench of this Court in Vishal Aggarwal versus Indian Oil Corporation Ltd., 1998 (1) PLR166rejected the prayer of the petitioner to grant him appointment in accordance with the terms imposed in the award of the Land Acquisition Collector wherein, it has been directed that one eligible member per family, whose land is acquired, will be provided employment.
Prayer was declined on the ground that said Collector had no jurisdiction to incorporate such like condition and that the posts cannot be filled up in this manner.
The relevant observations read thus:- “7.
It is not disputed that the posts under the Corporation are to be filled up in conformity with the provisions of the Constitution These posts cannot be exclusively reserved for persons whose land has been acquired.
After all, those who have got compensation for the land are not in any way at a disadvantageous position as compared to others who have no land.
Thus, they deserve no preferential treatment.
In any case, no guidelines are shown to have been laid down.
If the guarantee under Articles 14 and 16 of the Constitution has to be a reality, the person who is at a Gupta Shivani 2014.07.10 12:47 disadvantageous position cannot be further made to I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 15 suffer a handicap vis-a-vis the person who has got money as compensation for his land which had been acquired.
The objection raised on behalf of the respondents that the Land Acquisition Collector had no jurisdiction to make such a stipulation in the award cannot be said to be wholly unfounded.
In any event, in the exercise of equitable jurisdiction under Article 226 of the Constitution we find no ground to interfere.”
.
Another factor which mitigates against the petitioners is that the acquisition of the land was way back on 12.12.1991 (Annexure P-7) when the award was passed.
The petitioners chose to sleep over their rights and did not approach this Court and only filed the fiRs.writ petition in the year 2003, after a period of more than a decade.
The issue which had died down was got revived by getting a direction from this Court that a speaking order would be passed on the said issue which led to the passing of the impugned order dated 04.09.2003, which is now the subject matter of challenge.
Vide the impugned order, the claim has been validly rejected on the ground that as per the policy dated 03.02.1986, the understanding for offering any formal employment to the one member of every dispossessed family already stood withdrawn.
The land was acquired thereafter and, therefore, there was no such policy on which the petitioners could seek their legal redressal.
The IOC mentioned that compensation had been paid which had been revised by various Courts and they were having excessive man power in the plant which was highly sophisticated and computerized and requiring less man power and no fresh recruitment had been made.
In such circumstances, the speaking order passed by the IOC in pursuance of the directions of this Court cannot be held to be without any basis.
Gupta Shivani 2014.07.10 12:47 Accordingly, keeping in view the above cumulative discussion, I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 16 this Court is of the opinion that no relief can be granted to the petitioners as claimed and the writ petitions are dismissed.
03.07.2014 (G.S.SANDHAWALIA) shivani JUDGE Gupta Shivani 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh CWP No.19704 of 2003 (O & M) 17 Gupta Shivani 2014.07.10 12:47 I attest to the accuracy and integrity of this document Chandigarh