Basant Lal Vs. Chairman, Nagar Palika Parishad and ors. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - the petitioner as well as respondent no. srivastava holding brief of sri vinay singh, learned counsel for the petitioner as well as sri p. chanda devi and by a will dated 30.12.2000, prem lal had clearly mentioned that he had divorced his first wife smt. mother of the petitioner basant lal, as well as his elder brother are already employed with the nagar palika parishad, jaunpur. as such i do not find any good ground for interference with the impugned order dated 28.3.2003. this writ petition, thus, lacks merit and is, accordingly, dismissed.vineet saran, j.1. late prem lal was an employee of nagar palika parishad, jaunpur. he died in harness on 29.6.2002. petitioner basant lal is one of the three sons of late prem lal through his first wife smt. sundari devi. the controversy in this writ petition is with regard to the employment to be given under the dying in harness rules, 1974.2. respondent no. 3 smt. chanda devi claims to be the second wife of late prem lal through whom she has one minor son and one minor daughter. the petitioner as well as respondent no. 3 smt. chanda devi filed applications for appointment under the dying in harness rules. by an order dated 29.8.2002 passed by the executive officer, nagar palika parishad, jaunpur, smt. chanda devi, respondent no. 3, was given appointment on compassionate ground. the said order was challenged by the petitioner basant lal in writ petition no. 37859 of 2002 which was allowed by this court vide judgment and order dated 1.11.2002 and the order dated 29.8.2002 was quashed. however, the matter was remanded back to the executive officer, nagar palika parishad, jaunpur for deciding the question of giving appointment to the dependant of deceased prem lal under the dying in harness rules after giving opportunity to all the concerned parties and after determining the question as to whether smt. sundari devi was divorced, in accordance with law, and her marriage ceased to exist before the re-marriage of late prem lal with respondent no. 3 smt. chanda devi. by the impugned order dated 28.3.2003 passed by the executive officer, nagar palika parishad, jaunpur the claim of the respondent no. 3, for appointment under the dying in harness rules, 1974 has been upheld and thus she has been given such appointment. aggrieved by the said order dated 28.3.2003, the petitioner has filed this writ petition and has also prayed for a direction to respondents to give appointment to the petitioner in place of his father under the dying in harness rules, 1974.3. i have heard sri p. c. srivastava holding brief of sri vinay singh, learned counsel for the petitioner as well as sri p.c. srivastava, learned counsel appearing on behalf of respondent nos. 1 and 2 and dr. g.s.d. misra, learned counsel appearing on behalf of respondent no. 3. a counter affidavit has been filed on behalf of respondent nos. 1 and 2, to which a rejoinder affidavit has also been filed and with the consent of the learned counsel for the parties, this writ petition is being heard and disposed of at the stage of admission itself.4. by the impugned order passed by the executive officer of the nagar palika parishad, jaunpur a categorical finding of fact has been recorded that through his first wife, smt. sundari devi, late prem lal had four children (three sons and one married daughter) of whom the petitioner is one of the sons, and thereafter, after having divorced smt. sundari devi according to the local customs of hela community to which late prem lal and smt. sundari devi both belonged, the said late prem lal had married smt. chanda devi, respondent no. 3, through whom they had a son and a daughter, who both are minors. a categorical finding of fact has also been recorded that the petitioner, who is son of prem lal through his first wife smt. sundari devi, was residing with his mother for last 10 to 15 years and in the ration card the name of smt. sundari devi was shown as the head of the family along with the name of her four children. even in the service record late prem lal had nominated his second wife smt. chanda devi and by a will dated 30.12.2000, prem lal had clearly mentioned that he had divorced his first wife smt. sundari devi and married smt. chanda devi. thus it was established before the authority concerned that the second marriage of late prem lal had taken place after divorce had been given to the first wife in accordance with the local customs of his community. a further finding has been recorded that the first wife of late prem lal i.e. mother of the petitioner basant lal, as well as his elder brother are already employed with the nagar palika parishad, jaunpur. the contention of sri p.c. srivastava, learned counsel appearing for the nagar palika parishad, jaunpur that once a member of the family of the deceased employee has been given employment or is already employed, the other members would not be entitled to claim the benefit of the dying in harness rules, has force. the petitioner has not denied the fact that his mother and brother are already in the employment of the nagar palika parishad, jaunpur. in such circumstances even if the other finding recorded to the effect that the petitioner is in employment of a private concern is to be ignored, then too since two other members of the family are already in employment, the petitioner would not be entitled for appointment under the dying in harness rules, 1974.5. after considering the entire facts and circumstances of this case and taking in view the fact that smt. chanda devi, respondent no. 3, who is the second wife of late prem lal, was actually residing with him at the time of his death, through whom she has two minor children, who are to be maintained by her, the executive officer, nagar palika parishad, jaunpur granted the benefit of giving employment on compassionate ground to the respondent no. 3, which in the present case, cannot be said to be unreasonable, unjustified or illegal. as such i do not find any good ground for interference with the impugned order dated 28.3.2003.this writ petition, thus, lacks merit and is, accordingly, dismissed. no order as to cost.