IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.733 of 2005 (Against the judgment and order dated 22.1.2004 passed by learned Single Judge in C.W.J.C.No.2745 of 1999). The State of Bihar through the Rehabilitation Officer, Medium Irrigation Project, Bhagalpur …Appellant Versus 1. Prem Kumar Singh Son of Late Ram Swaroop Singh, resident of Village Jhirwa, P.S. Banka, District Banka 2.The Chief Engineer, Irrigation Department, Bhagalpur 3.Secretary cum Commissioner, Water Resources Department, Sinchai Bhawan, Patna 4. Rehabilitation Officer, Banka, Bilasi Priyozna, Bhagalpur 5. Director, Water Resources Department, Bihar, Patna 6. District Magistrate, Banka ….Respondents ----------- For the Appellant : Mr.Sanjay Kumar No.2,G.P.1 For the Respondent: Mr. B.K.Choudhary, Sr. Advocate Mr. Arvind Kumar, Advocate P r e s e n t THE HON‟BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON‟BLE MR. JUSTICE SAMARENDRA PRATAP SINGH The State of Bihar has preferred this appeal under clause 10 of the Letters Patent of the High Court of Judicature at Patna and raises a grievance with respect to the order dated 22.1.2004, passed by a learned Single Judge of this court in C.W.J.C.No.2745 of 1999, whereby the writ petition was allowed, and the State Government has been directed to appoint the petitioner on a suitable post in terms of the policy decision of the State Government as an additional relief SK Katriar,J 2 to the land oustees whose lands had been acquired for the Bilasi Jalashaya Project in the district of Banka. 2. A brief statement of facts essential for the disposal of the appeal may be indicated. The writ petitioner was the owner of certain areas of land. The State Government decided to acquire whole of his land, apart from the lands of many others, for creation of Bilasi Jalashaya Project in the district of Banka. Proceedings commenced under the Land Acquisition Act (hereinafter referred to as „the Act‟). The whole of the land of the writ petitioner with house, well etc. measuring 2.75 acres in village Kojhi were acquired under the provisions of the Act for the said irrigation project. The State Government in the department of Water Resources had issued resolution bearing memo no.1212, dated 18.9.1993, in the nature of a policy decision that such oustees of land under the Act may be appointed on Class III or Class IV post in the Bihar Government. The writ petitioner (the respondent herein) submitted his representation dated 2.7.1998 to the Director, Department of Water Resources, Government of Bihar, for his appointment on a suitable post as envisaged by policy decision. The representation further stated that the compensation amount determined under the Act may be paid to him immediately, the relevant portion of which is quoted herein below: 3 “fuosnu gS] fd ty lalk/ku foHkkx ds vUrxZr fofHkUu ifj;kstukvksa ds dk;kZUo;u gsrw Hkwfe dk vtZu foyklh tyk'k; ifj;kstuk ds vUrxZr fd;k x;k gS] ftlesa izkFkhZ ds edku] Hkwfe ,oa dqvk¡ bR;kfn lHkh vftZr dj yh xbZ gSA bl dkj.k izkFkhZ iw.kZ :i ls foLFkkfir gks x;k gSA jkT; ljdkj ds fu;ekuqlkj fy, x, ladYi esa foLFkkfirksa dh Js.kh;k¡ Hkh dk;e dj nh xbZ gS ,oa foLFkkfirksa ds fu;kstu gsrq izkFkfedrk nsus dk Hkh izko/kku fn;k x;k gSA bl izdkj izkFkhZ dks Hkh iw.kZ foLFkkfir gksus ds dkj.k vius ifjokj esa ls jkT; ljdkj esa ukSdjh ikus dk gd curk gS lkFk gh x`g vuqnku jkf'k ,oa x`g fuekZ.k gsrq Hkwfe dk vkoaVu dk vkns'k ;Fkk'kh?kz Hkstk tk,AÞ Inaction on the part of the authorities led to the writ petition where the State Government raised the plea that the writ petitioner cannot be appointed on some job due to “resource crunch” of the State Government. The learned Single Judge rejected the contention of the State. Hence the instant appeal at the instance of the State Government. 3. Learned Government Pleader submits that it is not possible to give employment to such a large number of land oustees. He next submits that the only compensation envisaged in law under the Act has already been paid to him. He lastly submits that the policy decision does not create any enforceable right in favour of the land oustee. He relies on the judgment of a Full Bench of the Allahabad High Court in Ravindra Kumar Vs District Magistrate, reported in 2004 S.C.S.R. 253. 4 4. Learned counsel for the writ petitioner has supported the order on the writ petition. He submits that the policy decision of the Government is enforceable in law. He relies on the following reported judgments: i) The Union of India and others Vs M/s Anglo Afghan Agencies, reported in A.I.R. 1968 SC 718. ii) Cooper Engineering Ltd. Vs D.S.Aney, reported in A.I.R. 1973 SC 2232 iii) A.P.Steel Re-Rolling Mill Ltd Vs State of Kerala, reported in (2007) 2 SCC 725 iv) Sunil Pannalal Banthia Vs City and Industrial Development Corpn. Of Maharashtra Ltd. reported in A.I.R. 2007 SC 1529. 4.1 He has also made submissions on the strength of the judgment of the Supreme Court in N.D. Jayal Vs Union of India, reported in (2004)9 SCC 362, paragraph 60. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. Law is well settled that a policy decision of the State Government does create legal rights and liabilities and can be enforced through the Court. Learned counsel for the writ petitioner has rightly relied on the judgment of 5 the Supreme Court in the case of Union of India Vs M/s Anglo Afghan Agencies, paragraph 20 of which is reproduced herein below: “20. This case, is in our judgment, a clear authority that even though the case does not fall within the terms of S.115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution”. In fact, we go ahead to state that the present case stands on a better footing than the facts obtaining in Union of India Vs M/s Anglo Afghan Agencies, for the reason that, in that case, it was voluntary on the part of the entrepreneur to engage himself in the business of export. On the other hand, in view of the element of compulsion provided by the statute under the provisions of the Act and the doctrine of Eminent Domain, the land holder has no option but to surrender his land under the provisions of the Act. Therefore, the observation of the Supreme Court that a policy decision is enforceable applies with greater force to the facts and circumstances of the present case. 6 6. We must at this stage consider the Full Bench decision of the Allahabad High Court in Ravindra Kumar Vs District Magistrate, paragraph 11 of which is reproduced herein below: “11. This grant of solatium in addition to the full market value of the land has obviously been made to cater to the difficulties of the person whose land has been acquired. There is no provision in the Land Acquisition Act to grant a job in addition to the amounts specified in Section 23. Hence, any Government Order for providing a job, in addition to that, is in our opinion, violative of the provisions of the Land Acquisition Act, for such a Government Order will amount to amendment of Section 23, which will be illegal”. We do not agree with the observations, inter alia, for the reason that law is by now well settled that a policy decision of the State Government creates enforceable rights and obligations and was not canvassed there. The judgment of the Supreme Court in Union of India vs. Anglo afghan Agencies (supra), being the leading judgment on the point, was also not brought to the notice of the Court. Further more, the writ petitioner there as well as in the present case do not claim additional benefits under the Act, but De Hors the same, namely, under the policy decision. We, therefore, respectfully disagree with the proposition laid down therein. 7 7. We must consider the scope of the policy decision as well as the contention advanced by the learned Government Pleader that it is not possible to provide government job to all land oustees. It is evident on a perusal of the policy decision that the preamble opens with the limitation and the words of caution that it is not possible to provide jobs to all the land oustees because the latter are in much higher number than the jobs available with the State Government, notwithstanding which the policy decision has been formulated. The policy decision itself creates three categories of land oustees and the writ petitioner is covered by Category-1, which includes those land oustees whose whole of the land, being their sole source of livelihood, has been taken over under the Act. It is evident on the face of it that the State Government felt the necessity of providing extra relief to such persons, who were completely devoid of their source of livelihood, in contra distinction to those who did not lose their entire or substantial portion of land. The Government was conscious of the magnitude of such deprivations, where a person lost all his land and house and thus the very source of livelihood and existence. Thus the Government consciously formulated three categories of oustees and the additional benefits to which they would be entitled depending upon the category in which they fell on the basis of criteria of deprivations. It is common knowledge that majority of such persons 8 in rural areas are entirely dependent on cultivation. Paragraph 1 of the policy decision is reproduced herein below: “ 1- foLFkkfirksa dk izFke Js.kh %& izFke Js.kh ds ,sls foLFkkfir ifjokjksa dks j[kk tk; ftudk edku ,oa lEiw.kZ tehu ;kstuk ds dk;kZUo;u gsrw vftZr dj yh xbZ gks vkSj ftlds ikl thfodksiktZu gsrq vc dksbZ tehu ,oa edku ugha cpk gksAÞ In view of the extraordinary situation created by the land acquisition, we say rightly, importance is attached to those land oustees whose whole of the lands have been taken over and shall be given an appropriate job consistent with his qualification. The limitation of the State Government in the nature of paucity of jobs and resource crunch may or may not be applicable to those whose entire lands and house have not been acquired, may be covered by the remaining clauses of the policy decision, and we may not be taken to have expressed our views with respect to those cases because those situations do not arise for our consideration. We have, therefore, no doubt that the writ petitioner is entitled to an appropriate job consistent with his qualification with effect from the date prior to the date of six months from the date on which his lands were taken over. 8. It appears that land acquisition proceeding in this State has gained extraordinary notoriety and is accompanied with the State oppression to the great detriment of the poor land oustees. To give one example, we state on the basis of our judicial experience in this 9 court, that the State Government prefers First Appeals in this court with respect to land acquisition matters of the valuation of Rs.500/- and beyond. Even filing cost of such appeals far exceeds the valuation of the appeals. One of us (S.K.Katriar,J) had to take steps to force the State Government to take remedial measures, and ensure withdrawal of such frivolous and petty appeals. There have been a large number of cases where this Court declined to condone the delay in preferring such appeals or substitution applications, but the State Government has habitually been filing appeals in the Supreme Court. Payment of compensation money under the Act, the time taken in the process, and extra money required to be spent to obtain the same, are acknowledged realities in this State. The State Government is very oppressive to the poor land-holders and its citizens. And income tax at source is collected from the compensation amount payable to such land oustees majority of whom are such for whom one square meal a day is a luxury. Taking into account all such aspects of the matter, adequate compensation over and above compensation under the Act, to the land oustees gained momentum in this country leading to a large number of judgments of the Supreme Court, followed by strained efforts by Governments to give greater relief to such oustees. 10 9. Learned counsel for the writ petitioner has rightly relied upon the judgment in the case of N.D. Jayal Vs Union of India (supra), paragraph 60 of which is reproduced herein below: “60. Rehabilitation is not only about providing just food, clothes or shelter. It is also about extending support to rebuild livelihood by ensuring necessary amenities of life. Rehabilitation of the oustees is a logical corollary of Article 21. The oustees should be in a better position to lead a decent life and earn livelihood in the rehabilitated locations. Thus observed this Court in Narmada Bachao Andolan case. The overearching projected benefits from the dam should not be counted as an alibi to deprive the fundamental rights of oustees. They should be rehabilitated as soon as they are uprooted. And none of them should be allowed to wait for rehabilitation. Rehabilitation should take place before six months of submergence. Such a time-limit was fixed by this Court in B.D. Sharma v. Union of India and this was reiterated in Narmada. This prior rehabilitation will create a sense of confidence among the oustees and they will be in a better position to start their life by acclimatizing themselves with the new environment.” (emphasis added) In the aforesaid case, the lands of the oustees were completely submerged after creation of the Dam. In other words, the common feature between the two cases is that the land oustees have been completely deprived of their source of livelihood. Hence the 11 policy decision. The State Government creates its policy decision, yet it resists its implementation by depriving the land oustees of the benefits thereunder. Indeed the present appeal at the instance of the State of Bihar illustrates the position. 10. Before the judgment could be signed, we noticed the following news item which speaks for itself: We should not be taken to be relying, for the purpose of disposal of the present appeal, on a news item. We have quoted hereinabove the news item only to bring on record the spirit in which land acquisition proceedings take place in this State to the detriment of the hapless land oustees and how hard they have to persevere to obtain the amount of compensation under the Act. 12 11. We wish to emphasize the efficacy of such policy decision for the land oustees, particularly those whose entire lands have been acquired, with further emphasis that they should get the benefits under the policy decision six months in advance. If the State Government had its own way, the writ petitioner would reach the age of superannuation and it will then venture to raise the contention that the claim for appointment has come to an end. 12. In the result, this appeal is dismissed with costs quantified at Rs.1,00,000/- (Rupees One lac. only) towards harassment and cost of the proceedings to be paid to the writ petitioner within a period of four months. The State Government in the department of Water Resources is hereby directed to appoint the writ petitioner on a suitable post consistent with his qualification with effect from the date six months prior to the date on which possession of his lands were taken over with all consequential benefits. The entire arrears of salary shall carry interest @ 6% (six) from the dates the amounts including costs became due till the date of payment. (S.K. Katriar,J) S.P.Singh,J I agree (S.P.Singh,J) Patna High Court Dated January 10, 2011 KHAN/AFR