Employees' State Insurance Corporation Vs. Akhtar (03.09.2007 - ALLHC) - 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. pankaj mithal, j.1. heard p.k. asthana, learned counsel for the appellant. no one has put in appearance on behalf of the claimant-respondent despite the service of notice being sufficient upon him.2. the appeal is directed against the order of the employees insurance court dated april 29, 1988 passed in appeal no. 65 of 19ssakhtar v. employees state insurance corporation, kanpur.3. the claimant respondent was an employee of the elgin mill. it is said that he suffered injury in his right knee while on duty on june 29, 1987. admittedly, the said injury is non-schedule injury. the medical board disallowed the claim of the claimant-respondent vide order dated december 16, 1987. the said order was impugned in the appeal. the appellate court has allowed the appeal partly and has determined the loss of earning capacity of the claimant-respondent to the extent of 5%.4. learned counsel for the appellant has raised a substantial question of law as to whether the appellate court was justified in superceding the decision of the medical board without there being any evidence to substantiate the loss of earning capacity of the claimant respondent5. i have perused the order of the employees insurance court. the employees insurance court had allowed the appeal without discussing any evidence and has awarded 5% loss of earning capacity without there being any documentary evidence in support of the same. this has been done by the employees insurance court on his own accord and his personal observation of the right knee joint of the claimant respondent. the employees insurance court, records that there is pain in the right knee of the claimant-respondent. in my opinion the pain in the knee cannot be ascertained on mere observation of the knee. moreover the opinion of the medical board which consists experts can not be over-ruled on mere personal observation without there being any evidence in support thereof. admittedly there is no medical report of any private doctor or any certificate of medical expert certifying loss of earning capacity of the claimant-respondent on account of pain or injury in the right knee joint.6. in view of the above, the impugned order of the employees insurance court dated april 29, 1988 cannot be sustained. the appeal is allowed. the order under appeal dated april 29,1988 passed by employees insurance court kanpur in appeal no. 65/1988 akhlar v. employees state insurance corporation, kanpur is set aside. however it is made clear that any benefit which may have been given to the claimant-respondent shall not be recovered from him.