IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.4942 of 2011 Reserved on :16th August, 2011 Date of Decision:30th August, 2011 Suresh Kumar Petitioner Versus State of H.P. and others Respondents Coram The Hon’ble Mr. Justice Kurian Joseph,C.J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the petitioner: Mr. Amit S. Chandel, Advocate For the respondent: Mr.R.K.Bawa, Advocate General, with Mr. J.K.Verma, Dy. Advocate General, for respondents No. 1,4 and 5. Sanjay Karol, J. Petitioner has prayed for the following reliefs:- “(i) That quash and set aside Clause 3.1.5(b) of the Rehabilitation and Resettlement of the Oustees of Kol Dam Hydro Electric Project (Grant of land and other benefits) Scheme 1999. (ii) That the respondents be directed to consider the petitioner for the post of Artisan Trainee (Electrical) in the interest of Law, Equity and justice.” Whether the reporters of Local Papers are allowed to see the Judgment? 2 2. Facts are not in dispute. On 26.2.2000 State of Himachal Pradesh entered into an agreement with the National Thermal Power Corporation Limited, a Public Sector Undertaking, to set up a 800 MW Hydroelectric Project on river Satluj in District Bilaspur, H.P. under the name of Kol Dam Hydroelectric Project. This agreement was entered into after a detailed project report was prepared and all environmental clearances, as required for the purposes of and upto the stage of signing of the agreement, were obtained from the statutory authorities. The project envisaged a situation where private land, agricultural and otherwise, belonging to land owners was to be acquired by the State Government. The extent of such land was envisaged to be upto 750 Hectares. For the purposes of rehabilitation of displaced person a Scheme known as, Rehabilitation and Resettlement of the Oustees of Kol Dam Hydro Electric Project (1999) was prepared by the State Government and the National Thermal Power Corporation Limited. In principal, the same was approved by the relevant Ministries also. Under the said Scheme, monetary compensation was to be given to all families, who were rendered homeless on account of acquisition of land for the purposes of establishing the Project. Colony for the oustees was also to be established. However, option was given to the land owners to accept monetary 3 benefits in lieu thereof. The Scheme also envisaged that such of those families who were rendered landless on account of acquisition of their land, would also be eligible for a landless grant. Additionally, subject to availability of vacancies, one member of each family was to be considered for giving employment by the Corporation, with the only caveat that no member of a family would be eligible for consideration for employment if the total extent of acquired land was less than one biswa. 3. Clause 3.1.5 of the Scheme for the Rehabilitation and Resettlement of the Oustees of Kol Dam Hydro Electric Project (for short, the Scheme), reads as under:- “In case of such affected families who are co-owners as a brothers and sisters and share of acquired land of each of such co- owners is one biswa of less and if they club their shares together with which quantum of acquired land becomes more than one biswa, only one member will be considered for employment against all such co-owners after their mutual consent. a) Provided that no member of a family whose total land acquired is one biswa or less, married daughter or heirs of pre- deceased/ married daughter, who are recorded as co-owners in the revenue record with their brothers, sisters or parents shall be eligible for consideration of employment in the project. 4 b) No member of affected family shall be eligible for consideration of employment if quantum of his acquired land is one biswa or less. c) No person shall be eligible for consideration of employment in the project who is not entered as member of the concerned affected family in the Panchayat Parivar Register. d) No family shall be entitled to give its right for consideration of employment to a member of some other family. e) No person of his family member shall be eligible for consideration of employment if he becomes owner of land by way of sale, gift, exchange etc. after the date of Notification of Section-4 of Land Acquisition Act, 1894. f) priority for consideration for providing employment from amongst eligible persons, not exceeding the number of unskilled and skilled workmen required to be recruited for the Project as decided by the Project Authority, shall be fixed by the concerned Deputy Commissioner in consultation with the Project Authority.” 4. Noticeably as per the affidavit filed by the Deputy Commissioner, Bilaspur, total land acquired in the name of petitioner’s father in Village Jamthal, Tehsil Sadar, District Bilaspur, H.P. for construction of Kol Dam Project is less than one Biswa. Even as per the petitioner the extent of the land acquired of his family is less than one biswa. 5 5. It is not his case that he is otherwise not entitled to or has not received monetary compensation or other benefits stipulated under the Scheme. It is also not his case that by virtue of acquisition of land he has been rendered either jobless or landless. It is also not his case that the acquired land was under cultivation and on account of such acquisition family has been rendered jobless. 6. In State of Gujarat v. Shri Ambica Mills Ltd., (1974) 4 SCC 656, the Apex Court has held that:- “54. A reasonable classification is one which includes all who are similarly situated and none who are not. The question then is: what does the phrase "similarly situated" mean? The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good. 55. A classification is under-inclusive when all who are included in the class are tainted with the mischief but there are others also tainted whom the classification does not include. In other words, a classification is bad as under-inclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same burden on others who are 6 similarly situated. A classification is over-inclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well. In other words, this type of classification imposes a burden upon a wider range of individuals than are included in the class of those attended with mischief at which the law aims. Herod ordering the death of all male children born on a particular day because one of them would some day bring about his downfall employed such a classification.” 7. Further In Re the Special Courts Bill, 1978, (1979) 1 SCC 380, the Apex Court held:- “(5) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily. * * * (11) Classification necessarily implies the making of a distinction or discrimination 7 between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality." 8. The right of a family to be considered for employment is only in a given set of facts and particular circumstances. By way of a policy decision respondents took a conscious decision of giving benefits to those families whose land acquired was more than one Biswa. In our considered view, there is rationality behind the same. One Biswa is not a large chunk of land which can be put to profitable agricultural use or render a person jobless. In any event, Scheme takes adequate care of such eventualities. On the face of it, there is nothing arbitrary about the same. The principle of equality would not mean that every law must have a universal application to all persons. In the instant case, there are families who have sacrificed more land than that of the petitioner and as such are eligible for consideration for employment. 9. That apart, there is nothing irrational or illegal in the condition stipulating that no member of the family shall be eligible for consideration for 8 employment if the land acquired is less than one Biswa. The Scheme itself takes care of rehabilitation of such families by making monetary grants. It is not disputed before us that other benefits under the Scheme already stand accorded to the family whose land was acquired by the respondent. 10. Hence, we do not find that the policy decision of the Government is not based on sound principle of law. 11. The Scheme was notified in the year 2000 itself. Petitioner allowed his land to be acquired and also availed various benefits under the Scheme at the relevant point in time. It is only now in the year 2011 that one of the conditions of the Scheme has been assailed by the petitioner, which cannot be allowed at such a belated stage. There is neither any illegality nor any irrationality on the part of the respondent in framing the Scheme which is now assailed at this belated stage. 12. In view of the aforesaid, prayers made in the petition cannot be allowed and the same is accordingly dismissed. (Justice Kurian Joseph) Chief Justice (Justice Sanjay Karol) 30th August, 2011 Judge. (C)