IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.778 of 2001. Judgment Reserved on:29.4.2008 Date of decision: 07.05.2008. Maya Ram ….Petitioner Versus State of H.P. & Others ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioner: Ms.Jyotsna Rewal Dua, Advocate. For Respondents No.1 to 3: Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. The petitioner has approached this Court with a prayer that a writ of mandamus be issued directing the respondents to appoint the petitioner as Chowkidar, preferably in the Pump House which has been constructed by the respondents on his land and for which assurance was given to him by the respondents that he would be gainfully employed in case he gives his land for construction of a pump house. A writ of mandamus has also been prayed directing the respondents to complete 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 the acquisition proceedings of the land belonging to the petitioner. It has been pleaded by the petitioner that he was a co-owner in the land as described in the writ petition which is very fertile and has a source of natural drinking water and adjoins the State Highway. He avers that he is an illiterate and very poor. In the year 1997, he was approached by the respondent asking him to surrender possession of land measuring one bigha as it was required for supply of water to the villages situated in the vicinity. This was the only cultivable land with the petitioner who informed the respondents that he would be left without any source of livelihood in case his land was acquired. He pleads that an assurance was given to him that he would be employed as a Chowkidar in case he allowed the respondents to use his land. The petitioner agreed to the proposal. A Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the `Act’) had been issued, the land was taken over by the respondents in 1997. Letter Annexure P-3 has been placed on the record addressed by the Assistant Engineer, I & P.H., PWD stating that the State Government has imposed a complete ban on recruitment and as and when such ban is lifted, he would be employed by the respondents. In reply, the respondents, as usual, have opposed the writ petition on a number of grounds. It 3 has been pleaded that the land was given by the petitioner by consent and that proceedings under the Act were in progress. Notification under Section 4 of the Act was issued on 28.7.2000. The respondents denied that the petitioner was at any time told about the appointment and that Annexure P-2, referred to by him, only states that he would be given employment as and when ban is lifted. The respondents have denied letter Annexure R-1/3 including Annexure R-1/3/T dated 18.1.2001 in which petitioner has mentioned that he has been deprived of his sole source of livelihood of fertile irrigated land where he was cultivating cash crops like ginger etc., he is not being paid compensation on the ground that he would be given employment etc. A supplementary affidavit has been filed by the Superintending Engineer, IPH circle, Nahan, Himachal Pradesh, stating that acquisition proceedings have been completed and that a sum of Rs.56,824/- has been deposited in the office of the Land Acquisition Officer. Learned counsel appearing for the petitioner submits that the respondents are bound by the principle of promissory estoppel. She has placed reliance on judgment of the Hon’ble Supreme Court in Chatturbhuj Vithaldas Jasani vs. Moreshwar Parashram and others, AIR 1954 SC 236 holding: “41. … … … … It would, in our opinion, be disastrous to hold that the hundreds 4 of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally or through correspondence and that every petty contract must be effected by a ponderous legal document couched in a particular form. It may be that Government will not be bound by the contract in that case, but that is a very different thing from saying that the contracts as such are void and of no effect. It only means that the principal cannot be sued; but we take it there would be nothing to prevent ratification, especially if that was for the benefit of Government. There is authority for the view that when a Government officer acts in excess of authority Government is bound if it ratifies the excess: see - `Collector of Masulipatam v. Cavaly Venkata Narrainapah’, 8 Moo Ind App 529 at p.554 (N). We accordingly hold that the contracts in question here are not void simply because the Union government could not have been sued on them by reason of Art.299(1)” She submits that even if it is held that the promise made by the respondent is void the provisions of Section 70 of the Contract Act can be invoked. She has further strengthened her arguments by relying upon the decision of the Supreme Court in State of 5 West Bengal vs. M/s.B.K. Mondal and Sons, AIR 1962 SC 779: “17. Another argument has been placed before us on the strength of the word "lawfully" and that is based upon the observations of Mr. Justice Straight in Chedi Lal v. Bhagwan Das, ILR 11 All 234. Dealing with the construction of S. 70 Straight,J., observed: "I presume that the Legislature intended something when it used the word “lawfully" and that it had in contemplation cases in which a person held such a relation to another as either directly to create or by implication reasonably to justify an inference that by some act done for another person the party doing the act was entitled to look for compensation for it to the person for whom it was done. " It is urged that in the light of this test it cannot be said that the respondent held such a relation to the appellant as to be able to claim compensation from the appellant, with respect, we are not satisfied that the test laid down by Straight, J. , can be said to be justified by the terms of S. 70. It is of course true that between the person claiming compensation and person against whom it is claimed some lawful relationship must subsist, for that is the implication of the use of the word "lawfully" in S. 70; but the said lawful relationship arises not because the party claiming compensation has done something for the party against whom the compensation is claimed but 6 because what has been done by the former has been accepted and enjoyed by the latter. It is only when the latter accepts and enjoys what is done by the former that a lawful relationship arises between the two and it is the existence of the said lawful relationship which gives rise to the claim for compensation. This aspect of the matter has not been properly brought into the picture when Straight, J., laid down the test on which Mr. Sen's argument is based. If the said test is literally applied then it is open to the comment that if one person is entitled by reason of the relationship as therein contemplated to receive compensation from the other S. 70 would be hardly necessary. Therefore, in our opinion, all that the word "lawfully" in the context indicates is that after something is delivered or something is done by one person for another and that thing is accepted and enjoyed by the latter, a lawful relationship is born between the two which under the provisions of S. 70 gives rise to a claim for compensation.” She submits that the petitioner has been deprived of his property without due process of law and employment being consideration for the acquisition, the State is bound by it irrespective of the contract which the respondents may or may not have entered into. She submits that the principle of 7 promissory estoppel as laid down by the Hon’ble Supreme Court in State of Himachal Pradesh and others vs. Ganesh Wood Products and others, AIR 1996 SC 149, is directly attracted to the facts of the present case. From the record there is nothing which can establish promissory estoppel and assurances made to the petitioner with respect to his employment or that providing him employment would be consideration for acquisition of the land. Letter Annexure P-3 only says that the petitioner would be given employment when the ban is lifted. Whether this letter was written by a person competent to hold out such a promise or not has not been established from the record. Supplementary affidavit filed by the respondent clearly establishes that acquisition proceedings have been completed and that the petitioner would be entitled to the award made. Of- course, it would be open to him to establish before a Court of competent jurisdiction that such compensation is inadequate or not in consonance with the established principles of law. From the material on the record, I do not find that there is any justification in the submissions made by the petitioner that providing employment to him was an integral part of the acquisition proceedings. Considering the social scenario it may have been quite possible that the petitioner has been convinced 8 to part with the possession of his land on such promise having been made to him, but in proceedings before the court facts are to be established and not assumed. In these circumstances, I do not find any merit in the submissions of the counsel appearing for the petitioner that a promise was held out to the petitioner that he would be employed in case he agrees to part with possession of his land. However, in the acquisition proceedings if, as a fact the petitioner has been deprived of his land before Notification under Section 4 of the Land Acquisition Act has been issued, he would be entitled to use and occupation charges of the property at the market rate. The State cannot plead that it is the beneficiary of a gift of a very poor person. This writ petition is accordingly disposed of with the directions that the respondents shall determine the amount of compensation, the petitioner would be entitled to. It will be open to the petitioner to recover charges for use and occupation of his land holdings for the period prior to the initiation of acquisition proceedings. A direction is issued to the Land Acquisition Collector to determine the use and occupation charges prior to the issuance of the notification under Section 4 of the Act which admittedly was issued much after the possession of the land had been taken. In case of inadequacy, it 9 would be open to the petitioner to agitate the matter in a Court of competent jurisdiction. It is also observed that the respondents may consider the case of the petitioner for offering employment to him as he belongs to a poor section of the society not on the ground of promissory estoppel but as a succor to his economic condition. Any observation made in the writ petition shall not stand in the way of his being so considered. Under the Directive Principle of State Policy, the State is otherwise bound to look after the interest of the down trodden. This writ petition is accordingly disposed of. There shall be no order as to costs. May 7, 2008. (Dev Darshan Sud) (aks) Judge.