Govind Prasad Nishad vs State Of U.P. And Others
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Allahabad High Court

Govind Prasad Nishad vs State Of U.P. And Others on 22 December, 2023

Author: Piyush Agrawal

Bench: Piyush Agrawal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:242495
 
RESERVED
 
Court No. - 5
 

 
Case :- WRIT - A No. - 32949 of 2005
 

 
Petitioner :- Govind Prasad Nishad
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Shreesh Srivastava,Shreyas Srivastava
 
Counsel for Respondent :- C.S.C.,Ashish Kumar Srivastava,K.R. Singh
 

 
HON'BLE PIYUSH AGRAWAL,J.

1. Heard Shri Shreesh Srivastava, learned counsel for the petitioner, learned ACSC for the State - respondents and Shri K.R. Singh, learned counsel for the respondent nos. 3 & 4.

2. This writ petition has been filed challenging the order dated 25.03.2008 passed by the Secretary, Housing & Urban Development, Lucknow as well as for a writ of mandamus directing the respondent - Development Authority to consider the petitioner for suitable employment in terms of the resettlement and rehabilitation scheme for person whose land has been acquired for the benefit of the Authority.

3. Learned counsel for the petitioner submits that the petitioner is an unemployed person belonging to Scheduled Castes category. He further submits that the grandmother of the petitioner was owner and bhumidar of plot no. 317 area 16 decimal situated in Village - Taal Ramgarh, Pargana - Haveli, District - Gorakhpur. The said land was acquired by the Gorakhpur Development Authority for the purpose of the project "Ramgarh Taal" for developing 5-star hotel, circuit house, children playground, etc. He further submits that the State Government, vide order dated 21.09.1981, has laid down a general policy for providing employment to at least one member from the family of the person whose land has been acquired for public purpose by the State or any of its Department, Corporation and other statutory body. Thereafter, the respondent - Development Authority adopted a scheme of Resettlement & Rehabilitation of the persons whose land has been acquired for the purpose of Ramgarh Taal project.

4. He further submits that on 31.07.1989, green card was issued certifying that the land of grandmother of the petitioner had been acquired for Ramgarh Taal project and that Smt. Atwari or any one member of her family who possessed the requisite qualification for employment would be given preference in employment in Gorakhpur Development Authority or in the Departments associated with its project. Thereafter, the petitioner applied for employment before the respondent - Authority, but in spite of several requests and representations having been made to the respondent - Authority, the petitioner was not given employment. Thereafter, the petitioner made a representation on 11.07.2007, which has been rejected vide impugned order dated 25.03.2008.

5. Learned counsel for the petitioner further submits that the impugned order dated 25.03.2008 has been passed totally on non-application of mind as the perusal of the registered will dated 27.05.1978, it is apparent that the petitioner has been described as grandson and owner of the property after the death of Atwari Devi widow of Testator Mavir Prasad. He further submits that while rejecting the claim of the petitioner, it has been held that the registered will deed dated 27.05.1978 cannot be relied upon as no probate in respect of the same has been obtained by any competent court. He further submits that the registered will deed dated 27.05.1978 was the subject matter of Original Suit No. 1463/1984, in which the validity of the registered will has been upheld. Once the competent court has upheld the validity of the registered will deed, the impugned order cannot be said to be valid in the eyes of law. He further relied upon the judgement of this Court in Fazalur Rehman Vs. Gopal Sahu [SCC Revision No. 124/2016, decided on 28.03.2016]; wherein, it has been held that obtaining probate of will is not mandatory if the property is located in the State of U.P.

6. Learned counsel for the petitioner further submits that once a scheme was promulgated by the State Government in the year 1981 and thereafter, the Gorakhpur Development Authority issued green card on 31.07.1989 under the signatures of the District Magistrate and the Vice Chairman of the Development Authority categorically stating therein that the land belonging to Smt. Atwari has been acquired under the project "Ramgarh Taal", which entitles her or her family members for employment in the Gorakhpur Development Authority or in its Department connected with the said project, the same should be honoured by the State. In support of his submission, he has placed reliance on the judgement of the Apex Court in Anil Kumar Vs. Union of India (UOI) & Others [(2019) 5 SCC 591]. He prays for allowing the writ petition.

7. Per contra, learned counsel for the Development Authority supports the impugned order and submits that the Full Bench of this Court in the case of Ravindra Kumar Vs. District Magistrate & Others [2005 (2) AWC 1650] has already dealt with the issue; wherein, it has been categorically held that the petitioners therein have no right to claim employment as the same is against the right conferred under the Land Acquisition Act. He further submits that the Full Bench of this Court has categorically held that acquiring body, for whose benefit the land is acquired, is not bound by such Government Order/circular giving appointment of one of the family members of the persons whose land has been acquired. He prays for dismissal of the writ petition.

8. After hearing learned counsel for the parties, the Court has perused the records.

9. It is not in dispute that the land in question was acquired for the project "Ramgarh Taal" and it is also not in dispute that green card was issued under the signatures of the District Magistrate and the Vice Chairman of the Development Authority; wherein, it has categorically been held that Smt. Atwari or her family members for employment in the Gorakhpur Development Authority or in its Department connected with the said project. The said fact is also not disputed in paragraph no. 13 of the counter affidavit filed on 21.11.2005. Once a green card has been issued pursuant to the scheme formulated by the State Government, failure of its implementation would result in failure of social justice. The denial of benefit of the said scheme to the petitioner would lead to a long torturous road to the justice. Further, in the impugned order, the benefit has been denied on the ground that the petitioner is not a family member of Smt. Atwari and the registered will cannot be relied upon as no probate in respect of the same has been obtained from the competent court, which is not correct, particularly, in view of the judgement of this Court in Fazalur Rehman (supra), in which it has been held that obtaining of probate on a will is not mandatory for a will to be set up in respect of the property located within the State of U.P.

10. Further, it has been brought on record that the registered will deed dated 27.05.1978 was the subject matter of Original Suit No. 1463/1984 (Sahatu Ram Vs. Smt. Atwari & Others), in which the validity of the registered will was upheld. Once the registered will deed has been upheld in the original suit and no contrary material has been brought on record, the impugned order cannot be sustained in the eyes of law. The Full Bench of this Court in Ravindra Kumar (supra) has passed a general order holding that no right can be claimed for employment from the body for whose benefit the land was acquired, but in the case in hand, a specific undertaking by way of green card has been issued duly signed by the District Magistrate and the Vice Chairman of the Development Authority. The Apex Court in Anil Kumar (supra) has held as under:-

18. The policy Circular dated 1-1-1983 was specifically adverted to in the subsequent Circular dated 19-4-2006. The subsequent circular stipulates that the Railway Board had decided that the policy to offer employment to displaced persons should not cover displaced persons where only a strip of land had been acquired. At the same time, it stipulated that the claim can be considered for appointment against a Group 'D' post where a "large area, house or substantial livelihood has been taken away/snapped in the process". The case of the appellant fell within the ambit of Para 2 of the Circular dated 19-4-2006. In rejecting the application of the appellant, the ground which weighed with the Railway Authorities was that only a strip of land belonging to the appellant had been acquired. This is not a correct reading of the circular. The circular contemplates that when a large area, house or substantial livelihood have been taken away, the case for providing alternative employment in a Group 'D' post would be considered. Those phrases are disjunctive. The entire house of the appellant was demolished. It was stated that there was no specific guideline from the Railway Authorities to provide a job in lieu of acquisition of land in Arrah-Sasaram project. This was not a valid ground to reject the claim, once there was a general policy Circular dated 19-4-2006 which held the field.

19. In the counter-affidavit that was filed before the High Court, an additional ground was sought to be urged, namely, that it was only if an exception is granted by the Ministry of Railways that the application would be considered for appointment in accordance with the prevailing norms. There is no justification for this submission since it would result in the exercise of a pick and choose approach, contrary to the policy Circular dated 19-4-2006.

20. For the above reasons, we have come to the conclusion that the rejection of the claim of the appellant was contrary to the terms of the binding policy circular formulated by the Union of India in the Ministry of Railways. Undoubtedly, the grant of appointment to persons displaced as a result of acquisition is a matter which is within the purview of the policy discretion. No mandamus can lie in the absence of a policy. However, where a policy has been laid down by the Union Government as in the present case, the terms of the policy can be enforced. The rejection of the claim of the appellant was for extraneous reasons and based on irrelevant considerations. The Government in the Ministry of Railways formulated a policy. The failure of implementation results in a failure of social justice. The policy circulars were substantive attempts to enhance social welfare. Denial of benefits to the appellant has led to a long and tortuous road to justice.

21. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court dated 3-1-2018 [Anil Kumar v. Union of India, 2018 SCC OnLine Pat 3397] . In the facts and circumstances of the case, in consequence, we direct that the claim of the appellant for appointment to a Group 'D' post shall be implemented within a period of two months from today by granting an age relaxation, if required.

11. In view of the above, the impugned order dated 25.03.2008 passed by the Secretary, Housing & Urban Development, Lucknow cannot be sustained and the same is hereby quashed.

12. The writ petition succeeds and is allowed. The matter is remanded back to the Secretary, Housing & Urban Development, Lucknow, i.e., the respondent no. 1, for deciding the matter afresh in accordance with law within a period of three months from the date of production of a certified copy of this Court.

13. The petitioner is directed to serve a certified copy of this order upon the respondent no. 1 within 15 days from today.

Order Date :-22/12/2023

Amit Mishra