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The Chairman v. Arulnathan - Writ Appeal No.210 of 1999 and Writ Appeal No.280 of 1999  RD-TN 469 (26 June 2003)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR. JUSTICE R.JAYASIMHA BABU
THE HONOURABLE MR. JUSTICE P.D.DINAKARAN
Writ Appeal No.210 of 1999 and Writ Appeal No.280 of 1999 W.A.No.210 of 1999
1. The Chairman
Tamil Nadu Electricity Board
No.800, Anna Salai
2. The Chief Engineer
North Chennai Thermal Power
Chennai. .. Appellants -Vs-
2. State of Tamil Nadu
rep. by its Secretary to Government
Revenue Department, Chennai-9.
3. The District Collector
4. The Special Tahsildar
North Madras Thermal Power Project
No.4, Jeenis Road, Saidapet
5. The Tahsildar
Ponneri, Thiruvallur District. .. Respondents W.A.No.280 of 1999
1. The Chairman
Tamil Nadu Electricity Board
No.800, Anna Salai
2. The Chief Engineer
North Chennai Thermal Power
Project, Chennai-57. .. Appellants Vs
2. The Collector
Chengai MGR District. .. Respondents PRAYER IN W.A.NO.210 OF 1999: Appeal against the order of this Court dated 24.10.1998 in W.P.No.10245 of 1997.
PRAYER IN W.A.NO.280 OF 1999: Appeal against the order of this Court dated 16.12.1998 in W.P.No.5218 of 1996.
For Appellants : Mr.V.Radhakrishnan in both Appeals
For 1st respondent : Mr.G.Muthukrishnan in W.A.No.210/1999
For 1st respondent : Mr.P.Subramani in W.A.No.280/1999
For respondents : Mr.S.T.S.Moorthy 2 to 5 in W.A.210/1999 Spl. Government Pleader and 2nd respondent in
Heard both sides.
2. These writ appeals are directed against the directions given in W.P.Nos.10245 of 1997 and 5218 of 1996, preferred by the first respondents in each of the above appeal seeking a writ of Mandamus directing the respondents therein to comply with the Permanent proceedings (i.e.) Permanent B.P.(FB) No.3 (Administration Branch) dated 25-1-199 0 and to give employment to one male member to each of the 241 families of Vallur Village, Thiruvallur District from whom the lands were acquired for North Madras Thermal Power Project in the North Madras Thermal Power Project and in Tamilnadu Electricity Board, in W.P.No.102 45 of 1997 and a writ of mandamus directing the second respondent therein to appoint writ petitioner's family member R. Murugesan as Helper (Trainee) in the North Madras Thermal Power Project in compliance with the direction given in G.O.Ms.No.656 Labour and Employment dated 29.6.78 and proceedings permanent BP (FB) No.3, Administrative Branch dated 25.1.1990 of the Tamil Nadu Electricity Board, in W.P.No.5218 of 1996.
3. Whether the first respondents in the above appeals are entitled to employment as a matter of right or in any case as a matter of preference, as they or the members of their family were displaced due to the acquisition of their lands for the purpose of constructing housing quarters and laying of roads for the employees of the North Madras Thermal Power Project, is the issue that arises for our consideration in these appeals, even though they were concededly given market value for the lands acquired. 4.1. Probably, to soothe the land owners and to render the acquisition proceedings smooth, speedy and successful, the appellant/Board by proceedings dated 25.1.1990, of course referring to G.O.Ms.No.656, Labour and Employment, dated 29.6.1978 made a statement that the appellant/Board would provide employment assistance to one member of each family from whom the lands were acquired for the North Madras Thermal Power Project. 4.2. The proceedings of the appellant/Board dated 25.1.1990 reads as follows:
"TAMILNADU ELECTRICITY BOARD
RECRUITMENT - Employment assistance to one member in each family from whom lands have been acquired for North Madras Thermal Project - Ordered. Administrative Branch
B.P.Per.(F.B.)No.3 Dated 25.1.1990
Thai 12, Sukhlak Thiruvalluvar Anadu
G.O.Ms.No.656/Labour and Employment dated 29.6.1978.
In the G.O. read above the Government have permitted Public Sector undertaking to recruit without reference to Employment Exchange one member in each family which is displaced on account of acquisition of lands for any project of such Public Sector undertaking.
2. The Tamil Nadu Electricity board has acquired lands for the establishment of North Madras Thermal Power Project and giving employment assistance to the families from whom lands have been acquired as a measure of rehabilitation has been examined in consultation with the Collector of Chengai Anna District and Villagers. In order to get the area released from the Villagers for expediting the Project work, it has been agreed to provide them employment assistance relaxing the norms prescribed.
3. In the circumstances explained above, the Board after careful consideration directs that:
i) One male member in each family from whom lands have been acquired for construction of North Madras Thermal Power Project be appointed as Helper (Trainee) on consolidated wages in relaxation of rules relating to age and educational qualification wherever necessary. ii) The period of training shall be for three years on consolidated wages at the rate indicated below:-
Rs.500/- P.M. for the first year Rs.650/- p.m. for the second year, Rs.800/- p.m. for the third year. iii) Only one person in the family identified by the Collector, Chengai Anna District as eligible for employment assistance be appointed as Helper (Trainee).
iv) Only persons physically fit and suitable for the job be considered for such appointment.
v) In cases where the family does not have a male member or member not physically fit either due to age or physical infirmities, the family may nominate his/her relative for appointment and such nomination is a one time affair and shall not be revoked or altered when once the said nominee is appointed.
vi) The trainee so appointed be observed as regular Helper on
satisfactory completion of three years training.
(BY ORDER OF THE BOARD)
M. CHINNAKKANU CHIEF ENGINEER/PERSONNEL" 5.1. Complaining that even though some uprooted families were provided employment as stated by the appellant/Board, such benefit was belied to the respondents/ land owners, despite the proceedings of the Deputy Secretary to the Chief Minister dated 2.11.1995, requiring the District Collector to provide employment assistance at least to one member of the family which was affected by the land acquisition, the respondents/land owners preferred W.P.Nos. 10245 of 1997 and 5218 of 19 96. 5.2. The respondents/land owners relied upon the decision of E. PADMANABHAN, J, in DHARANIPATHY/LAKSHMI DEVI Vs. SECY. TO GOVT. OF T.N. & 3 OTHERS reported in 1997 WLR 498, wherein two decisions of the Apex Court, viz. (i) BANWASI SEVA ASHRAM Vs. STATE OF U.P. reported in AIR 1992 SC 920; and (ii) CALCUTTA PORT TRUST Vs. DEBA PROSAD BAG & OTHERS reported in 1994 Supp. (2) SCC 101 were followed.
6. The appellant/Board traversed the claim of the respondents/land owners contending that the respondents/land owners are not entitled to claim employment assistance as a matter of right, as their lands were acquired only under due process of law; and that the offer made by the Board in the proceedings dated 25.1.1990 can, at the best, be construed only as a measure of rehabilitation to the respondents/land owners, as they had already been paid the market value for the lands acquired.
7. On line with the decision in DHARANIPATHY/LAKSHMI DEVI Vs. SECY. TO GOVT. OF T.N. & 3 OTHERS reported in 1997 WLR 498, the learned single Judge by order dated 24.10.1998 in W.P.No.10245 of 1997 and by order dated 16.12.1998 in W.P.No.5218 of 1996 issued the following directions to the appellant/Board, viz.
(i) No recruitment to Class III or other lower classes shall be made in the North Madras Thermal Power Project, Ennore, Chennai, herein afterwards from any other source till one appointment to each one of the displaced families is provided for.
(ii) The District Collector, the Special Tahsildar of Land Acquisition, North Madras Thermal Power Project, and the Tahsildar, shall make out a list of the total number of families as on the date of handing over of all the lands to the Project in question with reference to the revenue records, verify the list of persons who had already been employed with reference to each family and furnish a list of the families, who had not been afforded even one employment till date.
(iii) Persons whose families have been displaced by acquisition and who had not been provided with one employment so for shall submit their applications to the local Revenue Divisional Officer within a period of six weeks from the date of publication of notice by the District Collector and such dates may be fixed by the District Collector in consultation with the Chief Engineer, North Madras Thermal Power Project, Ennore, Chennai. (iv) The District Collector with the assistance of the Special Tahsildar of Land Acquisition, North Madras Thermal Power Project, and the Tahsildar, will verify and scrutinise the applications and shall forward the list of eligible families and the names of their members with qualifications to the Chief Engineer, within a period of two months from the last date fixed for submission of the applications.
(v) The District Collector shall intimate the reasons to such of those persons whose claims are rejected as not bonafide candidates and whose families are not eligible for the benefit under the scheme of one appointment to each displaced family.
(vi) On receipt of the list of the displaced families who had not been so far provided with employment/appointment the Chief Engineer, shall make every effort to provide them with suitable employment. (vii) Till such time appointments are provided for all the persons in the list, the Chief Engineer, shall not recruit any outsider. (viii) As per the list of families furnished by the District Collector the remaining family members alone be appointed in Class III/IV employment of such other suitable employment commensurate with the qualification possessed by such family members on a priority basis under the scheme of one employment to one family of the land loser.
(ix) Wherever necessary the Chief Engineer, shall relax the age and qualification in favour of displaced families taking into consideration the long wait by them. In case there is no eligible candidate for providing employment in Class III or Class IV, the members of the families be provided either unskilled or semi-skilled posts or shall be engaged in providing facilities or allow them to have preference in locating bunks or other shops wherever permissible.
(x) The Chief Engineer is to go all out to get at least one member of the displaced families appointed either in the Project in question or in any other project located in the regions falling within the area. (xi) Till the completion of the list there should be periodical meetings between the District Collector and the Chief Engineer, or their representatives to ensure that all the eligible members of the displaced families are given employment at the earliest opportunity. (xii) The District Collector is to give due publicity to these directions through Press, Radio, Television and other available media before finalising the list to enable the displaced families to register themselves and get the benefit of the scheme. "
8. Aggrieved by the above directions of the learned single Judge dated 24.10.1998 in W.P.No.10245 of 1997 and dated 16.12.1998 in W.P. No.5218 of 1996, the appellant/Board has preferred these appeals.
9. Both the learned counsel for the appellant/Board as well as the respondents/land owners reiterated the contentions that were argued before the learned Single Judge.
10. We have bestowed careful consideration to the submissions of both sides on the following issues that are
raised in these appeals, viz.,
(i) Whether the omission to provide employment to the respondents/ land owners as stated in the Board proceedings dated 25.01.1990 relied upon by the respondents/land owners, much less the omission to ensure preferential treatment in employment is violative of Articles 14 and 21 of the Constitution of India? and
(ii) to what extent the appellant/Board is bound to comply with the directions of the learned single Judge and to what relief the respondents/land owners are entitled to?
11. The petitioners in the case of Dharanipathy vs. Secretary to Government of Tamilnadu, 1997 WLR 498 asserted a right to be provided with employment in the Naval Air Station at Arakkonam on the ground that the lands belonging to their families have been acquired under the provisions of the Land Acquisition Act for the purpose of the Air station. A promise had been held out to such families that one member from each family would be provided with employment. The learned Judge referred to two decisions of the Supreme Court construing those decisions as having mandated the kind of order that was ultimately made. That decision of the learned single Judge is under appeal and pending appeal the directions issued in that judgment have been stayed.
12. The first of the two cases relied upon was the case of Banwasi Seva Ashram vs. State of UP, AIR 1992 SC 920. That was a petition under Article 32 instituted by Banwasi Seva Ashram which had sought to preserve the forest lands on which the Banwasis lived. The Court having found that a vast tract of land of about one thousand acres had been acquired by the National Thermal Power Corporation, permitted the said Corporation to utilize the lands for it's purpose after it agreed to follow the policy set out in that judgment regarding the facilities to be given to oustees.
13. That decision does not lay down the proposition that in all cases of land acquisition for an industrial undertaking - whether in the public or private sector, employment is compulsorily to be provided to a member of the family of the owner of the acquired land. That order was made in the background of a petition which had sought the preservation of forest land and had sought protection of the persons living in the forest and having regard to those special circumstances and hardship that would result to those persons when their habitat was to be put to use for an industrial purpose and the use of a habitat denied to them.
14. The other decision relied upon was in the case of Calcutta Port Trust vs. Deba Prasad Bag, 1994 Supp (2) SCC 101. In that case the Calcutta Port Trust had not challenged the directions that had been issued by the High Court for the employment of members of the families of the persons from whom the land had been acquired for building Haldia Dock complex. The only issue in the appeal was regarding the provision for constituting a screening committee. The Court in that case had no occasion to examine the propriety of the directions given or their legality. The directions that had been given by the High Court are reproduced in the judgment. On that account alone, that judgment cannot be regarded as upholding the legality of the same, when that issue of legality was not even raised in the appeal.
15. The decision in the case of Calcutta Port Trust, therefore, cannot also be regarded as a decision, laying down the legal proposition that an industrial undertaking for whose benefit lands are acquired under the Land Acquisition Act, is bound to provide employment to the families of the erstwhile owners of the land.
16. As to whether such land owners have a fundamental right to claim such employment was considered in a later decision of the apex Court in the case of Butu Prasad Kumbhar vs. Steel Authority of India Ltd., 1995 Supp. (2) SCC 225. The petitioners in that case were either members of the families or descendants of the owners from whom the lands were acquired for setting up Rourkela Steel plant. It was their case that the acquisition had resulted in loss of source of livelihood and therefore with a view to secure their right to life under Article 21, the industrial undertaking was under a legal obligation to provide them with employment. Rejecting that contention, the Court observed,
"Needless to say that petitioners or their ancestors were not deprived of their land without following the procedure established in law. Their land was taken under the Land Acquisition Act. They were paid compensation for it. Therefore, the challenge raised on violation of Article 21 is devoid of any merit. Even otherwise the obligation of the State to ensure that no citizen is deprived of his livelihood does not extend to provide employment to every member of each family displaced in consequence of acquisition of land. ........ The Government has paid market value for the land acquired. .............. The claim of the petitioners that unless each adult member is given employment or the future generation is ensured of a preferential claim it would be arbitrary or contrary with the constitutional guarantee is indeed stretching Article 21 without any regard to its scope and ambit as explained by this Court. Truly speaking it is just the other way. Acceptance of such a demand would be against Article 14."
17. Petitioners do not have any fundamental right to be provided with employment by the appellant solely on the ground that their lands have been acquired.
18. In the counter affidavit filed to one of the writ petitions by the Chief Engineer of the appellant Board, it has been stated that no assurance had been given to the owners of the land in Thiruvallur village, that job would be provided to the members of their families. It is the stand of the Board that what had been provided in a Government Order which the Board has followed, that Government Order being of 29.06.1978, is that the displaced families, namely the land owners/cultivating tenants be provided with jobs for one member of each family, provided that the acquired land should have been the only major source of subsistence for that family. The Board has also referred to the Government Order dated 25.01.1990 wherein the Government had directed the Board to provide suitable jobs to the displaced persons to the extent possible. It has been averred for the Board that the entire Ennore village had been affected by the acquisition and jobs have in fact been provided to the families who had lost their lands as those families had been displaced as a result of acquisition. So far as the persons in Vallur village are concerned, it is stated that the lands were dry lands as the river which had earlier provided irrigation facilities had dried up long ago and that persons were not living in that village and therefore those persons cannot be regarded as having been displaced as a consequence of acquisition.
19. It is also pointed out for the Board that the Board's regulations do not provide for making appointment solely on the ground that persons seeking the appointment belong to a family whose lands have been acquired for the purpose of the Board.
20. We have no material before us to show that the petitioners were living in Vallur village and that they have been displaced as a consequence of acquisition.
21. The petitioners placed reliance on an order issued by the Board dated 25.01.1990 which refers to the Government Order dated 29.06.19 78 which permits recruitment without reference to employment exchange of one member in each family "which is displaced on account of acquisition of lands for any projects of such public sector undertakings." It is in that context that the Board's decision that one male member of each family from whom lands have been acquired for the construction of North Madras Thermal Power Project will be appointed on a consolidated wages and by relaxation of age and educational qualification wherever necessary, has been recorded. The identification of the persons has been left to the Collector under that order.
22. In the affidavit filed in support of one of the writ petitions it is asserted that each of the families of 241 persons from whom the lands were acquired is entitled to a job for one of it's members. It is also stated that the persons who had lost their lands in the neighbouring village had been given such jobs. In the affidavit filed in support of the writ petition it is asserted that those families were cultivating the lands. It is not the case of the petitioners that they were living near the lands that were acquired.
23. Thus, while the Board admits that it had provided employment to families of the land owners from whom it had acquired lands, it's stand is that such employment was provided only to persons who had been "displaced" and who had been dependent on those lands as their sole means of livelihood. If the petitioners also are able to establish that they fall into the same category they would also be entitled to the same treatment. As to whether they fulfill that criteria cannot be examined by this Court in this proceedings.
24. We leave it open to the Board to designate one of it's officers to carry out such an inquiry for which purpose it may receive applications from the petitioners. If the Board so desires, it shall be open to the Board to request the District Collector to carry out such an exercise, and in that event, the Board will be at liberty place before him all such materials that it considers to be relevant.
25. After that, the Board shall, subject to the availability of vacancies, nature of job and fitness of the applicants for performing that job, offer employment as Helper (Trainee) to such of those who qualify.
26. It is the case of the petitioners that there are 241 families from Vallur village who, though entitled, have been denied employment for one of their members. The exercise which the Board is required to carry out is confined only to those families. This exercise shall be completed within a period of six months from today.
27. We do not see any justification for the numerous restrictions/ conditions imposed in the order under appeal. That order is set aside. The appeal is allowed, subject to the directions given in this judgment. CMPs. NO.2990, 2300, 6273, 6274 and 9233 of 1999 are closed. Index : Yes
web : Yes
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