Shiv Singh Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
- land acquisition act (1 of 1894)sections 18, 23 & 54: [s.b.sinha & cyriac joseph,jj] acquisition of agricultural lands - classification of land on basis of evidence by reference judge held, a holder of a land has a statutory right to ask the collector by a written application that the matter be referred for determination of the court in regard to amount of compensation in terms of section 18 while taking objection to the amount of compensation awarded by the collector. the owner of the land may raise various contentions including the measurement of the land, the amount of compensation, the persons to whom it is payable, etc. for the purpose of getting amount of compensation determined, the applicant may furthermore raise contentions as regards classification of land, non-grant and/or inadequate grant of compensation under different heads, etc. the reference judge, thus, has a duty to consider all such objections. for the said purpose, opportunities must be given to the applicant to establish that the findings arrived at by the collector in his award in respect of grant of compensation were based on a wrong classification of land and/or ignoring the relevant materials therefore. where the reference judge determined the question in regard to the classification of land on the basis of the evidence adduced before it by individual land owners; by way of example, having regard to the fact that claimants had failed to prove that the land had any irrigation facility, the reference judge classified the lands as jirayat lands. held that, the finding of fact arrived at by the reference judge on the basis of the materials brought on record could not be interfered with by the high court on the surmises and conjectures. if the state was aggrieved thereby, it was bound to show that the findings arrived at by the reference court was not sustainable having regard to the materials brought on record. the opinion of the high court that saplings varying from 1 to 3 years of age were available for plantation from the government as well as private horticulture nurseries was based on surmises and conjectures, there being no such contention and no material for formation of such an opinion was brought on record. in certain cases, the conduct of a person claiming higher amount of compensation by taking recourse to certain acts to show development of the lands for obtaining better compensation might be a subject-matter of the judicial notice but even therein some materials were available for arriving at a conclusion. it was, therefore, impermissible to take recourse to surmises and conjectures across the board that even the agriculturist of a remote village whose lands were being acquired for undertaking an irrigation project, would take recourse thereto. no rule in absolute terms could be laid down therefor. it was one thing to say that any circular letter issued by the state allowing certain guidelines were not applicable but it was another thing to say that when the officers of the state themselves prepare a report on the basis thereof, the high court would interfere therewith on certain assumptions. section 23: [s.b.sinha & cyriac joseph,jj] agricultural land - orchard and forest -valuation of these two categories held, indisputably, valuation of agricultural land on the one hand and valuation of orchard and forest land on the other would stand on different footings. whereas in the former case, the known legal principles particularly with reference to the exemplars will have to be applied, in the latter a different principle, namely, multiplier of eight or ten, as the case may be, on the basis of the multiplicand, namely, yield from the trees or plantation would be applicable. the market value of the land cannot be determined both on the basis of sale instance as also on capitalization method keeping in view the fact that it had fruit bearing trees. when an orchard is acquired the nature thereof can be found from the revenue records of right and similarly when an agricultural land is acquired the nature thereof can be ascertained from the revenue records. if, however, on an agricultural or other categories of land in which a few trees stand, the question as regards the valuation of the said trees as such must be ascertained for the purpose of finding out the actual market value of the land acquired. a distinction must further be borne in mind where common evidence are adduced in respect of a large number of parties by both sides and, in particular, the principle of valuation having regard to the peculiar features of the village in question and acquisition of land which belongs to one or two persons and specific features of the land for the said purpose may have to be taken into consideration. - the circle secretacy, all india telegraph engineering employees union and linesmen staff and class iii union, jullundur branch, complained to the post master general, punjab circle, by letter dated may 28, 1968 that the divisional engineer telegraph jullundur east had not considered the 'optees' for appointment as sub-inspectors. the plea of the petitioner that he has been reverted malafide on account of his participation in the strike is clearly untenable.dwivedi, j.1. it is a petition under article 32 of the constitution. the petitioner, shiv singh, challenges the order of the divisional engineer, telegraphs east division, jullundur, the third respondent, dated july 7, 1969 and prays for his confirmation to the post of the sub-inspector in the scale of rs. 105-155.2. this case was first heard on september 20, 1972. the court adjourned the further hearing of the petition and directed the respondents to file a further affidavit with respect to certain matters. the respondents have now filed an affidavit. the petitioner has filed an affidavit in reply and the respondents have also filed a rejoinder affidavit.3. facts of the case are now abundantly clear. at one time there were two divisions, called the jullundur east and jullundur west telegraphs engineering divisions. jullundur east telegraph engineering division will hereinafter be called as jullundur east. the petitioner was employed as a linesman in jullundur east in 1954. on november 7, 1956 there was reorganisation of the aforesaid two divisions, and a new division was created. the new division was called the ferozepur telegraph engineering division. on the eve of the aforesaid reorganisation and establishment of a new division kamta prasad and eleven other respondents were working as linesmen within the area which became the newly created ferozepur telegraph engineering division. they opted for jullundur east. but they could not be posted in jullundur east for want of vacancies.4. the petitioner along with certain other linesmen was selected for the post of sub-inspector by the divisional engineer telegraphs jullundur east on june 13, 1967. he was appointed as sub-inspector with effect from june 16, 1967. a similar selection for the post of sub-inspector was, it appears, held in the jullundur telegraph engineering division. but kamta prasad and others were considered for promotion neither there nor in jullundur east. the circle secretacy, all india telegraph engineering employees union and linesmen staff and class iii union, jullundur branch, complained to the post master general, punjab circle, by letter dated may 28, 1968 that the divisional engineer telegraph jullundur east had not considered the 'optees' for appointment as sub-inspectors. the post master general made an enquiry about the relevant facts of july 8, 1968. the enquiry revealed that the 'optees' had not been considered in both divisions. consequently, on august 6, 1963 the director of telegraphs passed an order cancelling the selection of the petitioner and others. he further directed that the aforesaid optees should also be considered for promotion to the post of sub-inspector. the order regarding cancellation of the selection was issued by the office of the post master general on august 20, 1968.5. on september 19, 1968 there was a general strike in the postal department. the petitioner admittedly participated in the general strike. on july 5, 1969 kamta prasad and other respondents 'optees' were selected as sub-inspectors. the petitioner and certain other person who had participated in the strike were not selected. on july 7, 1969 the divisional engineer telegraph jullundur east approved the aforesaid selection. pursuant to this approval, the petitioner was sent back to his substantive post of linesman.two arguments have been advanced on behalf of the petitioner: one, kamta prasad and other respondents 'optees' were not eligible for appointment as sub-inspectors in jullundur east; two, the petitioner had been reverted malafide on account of his participation in the strike.6. as regards the first argument, reliance is placed on the words 'in the division' in rule 464 of the posts and telegraphs manual, volume iv. the main part of rule 464 provides that vacancies in the grade of sub-inspectors should he filled from the grade of 'linesmen in the division'. the argument is that the respondents 'optees' were actually working in the ferozepur engineering division at the time of the petitioner's selection in may, 1967 and were accordingly no 'linesmen in the division'. it appears to us that it is a too narrow interpretation of the phrase 'in the division' we think that the 'optees' who had opted for jullundur east in 1966 and who, for no fault of their own, were working in the ferozepur division at the relevant time, should be deemed to be 'linesmen in the division' for the purpose of rule 464. indeed, there was in force a direction of the appropriate authority to that effect on the relevant date. according to it, the 'optees' should be repatriated to the division of their choice as early as possible and whenever fresh vacancies occurred. it also provided that even though they were not working in the division of their choice, they should be considered for promotion in that division as and when vacancies occurred. as the respondents 'optees' were not considered at all for promotion to the post of sub-inspector in may, 1967, the selectmen of the petitioner and others was invalid. accordingly it has been rightly cancelled. the petitioner can have no legitimate grievance.7. coming to the second arguments, it may be pointed out at the outset that strike in the posts and telegraphs services were banned by an order of the central govt. services maintenance under section 3 of the essential ordinance, 1968. inspite of that order, the petitioner and others struck work on september 19, 1968.8. as regards the effect of participation in the strike on promotional prospects, there were several orders by different authorities. it is not necessary to mention every one of them. notice may be taken of two orders. on june 16, 1969, the director general, posts and telegraphs, issued an order to the effect that the employees who had participated in the strike would be considered for promotion provided they were not guilty of acts of violence, active instigation or intimidation and their work and conduct subsequent to september 1968 had been found to be satifactory. the petitioner seeks to rely on this order. but this order was ineffective on account of the office memorandum of the ministry of home affairs. issued on october 19, 1968. the office memorandum provided that the adverse entry in the character roll of an employee who took part in the strike would be taken into consideration for promotion or confirmation. all employees who were on unauthorised absence on september 19, 1968 would suffer the consequences of strike for five years. accordingly, the petitioner cannot rely on the order of the director general. the petitioner obviously became ineligible for promotion as sub inspector on account of the office memorandum for a period of five years. so he could not be considered for promotion as sub-inspector in july, 1969, when the respondents 'optees' and certain other persons were selected as sub-inspectors.9. it is admitted by the divisional engineer jullundur east that the petitioner was not considered for promotion as sub-inspector on account of the aforesaid directive of the ministry of home affairs. the plea of the petitioner that he has been reverted malafide on account of his participation in the strike is clearly untenable. there is no malafide. the order cancelling his selection was passed one month before the strike. the divisional engineer was bound to follow the directive of the ministry of home affairs and hold a fresh selection according to it.10. there is no force in the petition and accordingly it is dismissed. parties shall bear their own costs.