Delhi High Court
Krushna Chandra Nayak vs The Railway Board, Represented By ... on 14 May, 2014
Author: Biswanath Mahapatra
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) NO. 5102 OF 2013
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Krushna Chandra Nayak ...... Petitioner
-Versus-
The Railway Board, represented by
its Secretary, Rail Bhawan, Raisina Road,
New Delhi and others ...... Opp. parties
For Petitioner : M/s. Soubhagya S. Das,
R. Sahoo, K.C. Mohapatra
& J.K. Swain.
For Opp. Parties : Mr. D. K. Sahu
M/s. B.K. Dash & A. Pal.
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P R E S E N T:
THE HONOURABLE MR. JUSTICE I.MAHANTY
AND
THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA
Judgment : 14.05.2014
B.N. MAHAPATRA, J. This writ petition has been filed with a prayer to
quash the order dated 15.1.2013 passed by the Central Administrative
Tribunal, Cuttack Bench, Cuttack in O.A. No. 1032 of 2012 under
Annexure-4 and to direct the opposite party-Railway Authorities to
issue necessary appointment order in favour of the petitioner under
Rehabilitation Assistance Scheme as against any substantive vacancy
commensurate with his qualification as his family is in distress
condition.
2. Petitioner's case in brief is that when the father of the
petitioner continued to be a recorded tenant under the State
Government having absolute right, title and interest over the
properties appertaining to Plot Nos. 2314, 2318, 2319, 2320 and 2325
under Khata No. 754 in Mouza Godiputmatiapada under Delanga
Tahasil in the district of Puri and his family was earning their
livelihood out of usufructs from the said property through agriculture,
the process of acquisition of land was initiated by the authorities of the
State Government for the purpose of construction of Khurda Road-
Bolangir New B.G. Rail Link Project in the year, 1999 to be undertaken
by the East Coast Railway under the Ministry of Railways.
Consequentially Land Acquisition Case No. 05 of 1999 was registered
before the Land Acquisition Officer pertaining to the landed property of
his family and similar other persons of the locality. In the process of
such acquisition of land, a sum of Rs. 78,292/- was granted as
compensation in favour of his family by the Land Acquisition Officer,
Puri, which was received by his family on 25.5.2001 without prejudice
to the rights and contentions, if any. In view of such acquisition of
the land, no other alternative plots were allotted to his family save and
except the amount of compensation. When the family of the petitioner
along with many other similarly situated persons of the locality
enquired about the Rehabilitation Assistance Scheme providing
employment to the family of the land oustees, the authorities
suggested that the said aspect was under active consideration and
necessary notification would come out, once it is finalized. After
passage of several years, ultimately the Railway Authorities decided to
grant the benefit of compassionate appointment to the family of those
land oustees whose lands were acquired and/or to be acquired. In
consequence of such decision, the Government of India in its Ministry
of Railways vide Notification No. E (NG) 11/2010/RC-5/1 dated
16.7.2010 under Annexure-2 notified a scheme for providing
employment to one of the family members of the land oustee in
deserving cases as against the land acquired by the Railways for its
various projects. Pursuant to the said notification, the petitioner
submitted an application before the opposite party no. 3-Divisional
Railway Manager, East Coast Railway, Khurda Road for consideration
of his case for compassionate appointment under Rehabilitation
Assistance Scheme commensurate with his educational qualification.
Along with such application, the petitioner enclosed a certificate
regarding 'No Objection' from the family members along with his
educational testimonials as per requirement of the authorities as well
as an undertaking expressing his willingness to work against any
available vacancy. The further case of the petitioner is that though he
satisfied all the eligibility criteria coming within the zone of
consideration to avail the benefit of Rehabilitation Assistance Scheme
so far as it relates to grant of employment as a land oustee/loser, he
has not received any communication on his application and pending
consideration of his application, in the recent past, the opposite party-
authorities have gone for recruitment of fresh candidates ignoring his
case. Due to non-consideration of the application of the petitioner for
grant of benefit under Rehabilitation Assistance Scheme for an
inordinate period, the petitioner made a representation to the
authorities in this regard. The said representation having not been
considered, he approached the Central Administrative
Tribunal,Cuttack Bench, Cuttack in O.A. No. 1032 of 2012 seeking a
direction to the opposite party-authorities to consider his case for
appointment under Rehabilitation Assistance Scheme (Annexure-2) as
a land loser and for a further direction to issue necessary order of
appointment in his favour against any available vacancy
commensurate to his educational qualification within a stipulated
time. The Tribunal after hearing the parties vide order dated
15.1.2013 dismissed the O.A. Against the said order of dismissal, the
petitioner has approached this Court in the present writ petition
seeking appropriate relief.
3. Mr. S. Das, learned counsel appearing on behalf of the
petitioner submitted that the Tribunal is not justified in holding that
the notification issued by the Railway Board on 16.7.2010 cannot be
made applicable to the case of the petitioner since the land of
petitioner's family has been acquired much prior to the date of
notification. The notification in question is issued with regard to
appointment of land losers affected by the land acquisition for Railway
Projects. Since the said notification covers up the displaced persons
whose land has been acquired and also whose land are being acquired,
the Tribunal is not correct in holding that the said notification is not
applicable retrospectively.
4. In Clause-8 of the notification, it has been specifically
indicated that the instructions normally would not be applicable to
those cases where land acquisition process has been concluded by way
of possession of land by Railway. The said clause does necessarily
mean and infer that the notification would not be applicable for those
completed projects those which have been commissioned, otherwise the
contents of the said clause runs contrary to the very provisions of main
clause under the screening criteria. The Clause-8 under the screening
criteria needs to be read along with the notification in its entirety but
not disjunctively. In the district of Puri to which the petitioner belongs
a total extent of Ac. 14.08 decimals of private land has been acquired
by the State Government and the process of land acquisition is going
on in other districts. Construction work of the said project is in
progress in three districts, namely, Puri, Khurda and Nayagarh. Thus,
the project is not completed and it can only be stated to be so when it is
commissioned. A notification is normally issued with a purpose of
covering the projects and its applicability apparently ceases when the
project attains its completion. During continuance of the project, if a
notification is brought out, it has to be made applicable to the entire
project from its starting point to the finish line. By the time
notification was issued, the petitioner's family had lost their land.
Therefore, he cannot be deprived of getting the benefit of the said
notification as the persons of neighbouring districts would enjoy the
benefit of the said notification. Non-consideration of the case of the
petitioner creates a class within a class and he has been treated as an
unequal among the equals. The scheme itself covers up two sects of
persons, i.e., those who are already affected by the land acquisition
process and those who are going to be affected. As the entire process of
land acquisition has been made in patches and stretches for the on-
going project, the authorities cannot segregate the land oustees,
according to their choice, by taking the plea that Clause-8 of the said
scheme cannot be construed as non obstante one. The petitioner has
accrued definite right in his favour for appointment/engagement under
the category of being a land loser. Non-consideration of the case of the
petitioner perpetuates illegal discrimination and such arbitrary action
of opposite parties is in complete violation of Articles 16 and 21 of the
Constitution of India. Concluding his argument, Mr. Das, learned
counsel for the petitioner prays to declare the applicability of the
notification dated 16.7.2010 to the land loser of the entire project from
its starting point to the finish line and the clauses which are found to
be repugnant and contrary to the true intent of the Scheme may be
struck down as against the sanction of law.
5. Per contra, Mr. B.K. Das, learned counsel appearing on
behalf of opposite parties submitted that for the purpose of
construction of Khurda Road-Bolangir New B.G. Rail Link Project, a
notification for land acquisition was issued by the State Government in
the year, 1999. Pursuant to the said notification, lands were acquired
and compensation was paid by the Land Acquisition Officer to the
affected persons including the family of the petitioner on 25.5.2001.
The Railway Board in supersession of all previous instructions issued a
fresh instruction vide No. E(NG) 11/2010/RC-5/1 dated 16.7.2010 for
appointment of those land losers who are already affected on account of
land acquisition for Railway Projects with a stipulation that the said
instruction normally will not be applicable in those cases where land
acquisition process has been concluded by way of possession of land by
Railway. The land described in the Original Application was acquired
and compensation amount was paid by the Land Acquisition Authority
in the year, 2001. Accordingly, the Railway Authorities also took the
possession of land much prior to the notification dated 16.7.2010.
Placing reliance on Clause-8, Mr. Das further submitted that the said
notification is not applicable to the displaced persons in a land
acquisition process, which has been concluded by way of possession of
land by Railway. The Railway Board has ample power under Article 309
of the Constitution of India to issue such notification specifying the
time from which it will be applicable and the person who would be the
beneficiary. Concluding his argument, Mr. Das submitted that the writ
petition being devoid of merit is liable to be dismissed.
6. On rival contentions of the parties, the following questions
arise for consideration by this Court:
(i) Whether the notification dated 16.7.2010 issued
by the Railway Board is applicable to the case of
the present petitioner?
(ii) Whether the petitioner is entitled to get the
benefit flowing from the said notification dated
16.7.2010?
(iii) Whether the Tribunal is justified in dismissing
the petitioner's O.A. on the ground that since the land
acquisition process has been concluded much prior to
the notification/instruction dated 16.7.2010, the same
shall not be made applicable retrospectively unless
and otherwise specifically provided therein?
7. The Question Nos. (i) and (ii) being interrelated, they are
dealt with together.
The undisputed facts are that in the year, 1999, the
process of acquisition of land was initiated by the authorities of
the State Government for the purpose of construction of Khurda
Road-Bolangir New B.G. Rail Link Project to be undertaken by the
East Coast Railway under the Ministry of Railways. In the process
of such acquisition, the lands of the petitioner's family along with
other similarly situated persons of the locality were acquired. An
amount of Rs. 78,292/- was received by the family of the
petitioner as compensation in the year, 2001. When the
construction work of the said project is in progress, the
Government of India in its Ministry of Railways vide notification
no. E (NG) 11/2010/RC-5/1 dated 16.7.2010 notified a scheme
for providing employment to one of the family members of the
land oustees in deserving cases as against the land acquired by
the Railways for its various projects. Though the petitioner claims
benefit basing on Clause -3 of the screening criteria of the
notification dated 16.7.2010 (Annexure-2), the opposite parties-
Railway Authorities have denied such benefit placing reliance on
Clause-8 of the said notification.
8. At this juncture, it would be appropriate to extract
hereunder the relevant portions of the notification dated 16.7.2010
(Annexure-2) including Clauses 3 and 8 of the said notification:
"Government of India,
Ministry of Railways,
(Railway Board)
RBE No. 99/2010
No. E (NG) II/2010/RC-5/1.
New Delhi,
Dated:16.7.2010
The General Manager (P),
All Zonal Railways/Production Units
(As per standard mailing list)
Sub: Appointment of land losers affected by land
acquisition for railway projects.
In supersession of all previous instructions on the
subject, it has been decided that Railways may call and
consider applications for employment to PB-1 Pay Band of
Rs. 5,200-20,200 with grade pay of Rs. 1,800/- only, from
land losers on account of acquisition of land for the
projects on the Railways (excluding those for Deposit
works). Applications shall be invited, by Personnel Branch
of Zonal Railways, from the land losers fulfilling the
screening criteria as enumerated in para 2 below.
xxx xxx xxx
3. Railway administration should request the concerned
Competent Authority/Land Acquisition Officer to issue
certificate/s to those persons whose land has been
acquired to facilitate proper verification of the claims.
xxx xxx xxx
8. These instructions normally will not be applicable in
those cases where land acquisition process has been
concluded by way of possession of land by Railway."
9. A bare reading of the first paragraph of the notification
dated 16.7.2010 extracted above makes it clear that applications for
employment were called for from the land losers on account of
acquisition of land "for the projects on the Railways". The use of
expression "land has been acquired in Clause 3" of screening criteria
unambiguously covers the land losers whose land has already been
acquired for a Project. Therefore, it cannot be said that the said
notification has no retrospective effect and it will apply prospectively.
There is no reason to give a narrow interpretation to a benevolent
circular/notification. Beneficial circular should be liberally interpreted.
The Hon'ble Supreme Court in the case of Commissioner of Customs
(Preventive), Mumbai -v-M. Ambalal and Company, (2011) 2 SCC 74,
observed that the beneficial notification providing the levy of duty at a
concessional rate should be given a liberal interpretation. It is needless
to say that the object of issuing notification dated 16.7.2010 is a social
welfare measure to rehabilitate the land losers whose land has been
acquired for the Project on the Railways. The primary duty of the Court
while interpreting the provisions of such benevolent notification is to
adopt a constructive approach to achieve the purpose of such
notification. Any other interpretation that would defeat the very
purpose of the notification is not permissible under law. In case of
providing employment to the family members of the land losers under
Rehabilitation Assistance Scheme, technicalities cannot have
preference over the substantive justice. Clause-8 of the said notification
provides that the instructions contained in the notification dated
16.7.2010 normally will not be applicable in those cases where land
acquisition process has been concluded by way of possession of land by
Railway. Clause - 3 and Clause- 8 operates in two different sets of
circumstances. When Clause-3 operates for un-going Projects, Clause-8
operates in completed projects where land acquisition process has been
concluded by way of possession of land by Railway. Therefore, Clause-
8 cannot restrict/circumvent/block the benefits flowing under Clause-3
to land losers whose land has been acquired for an ongoing project.
10. The matter can be looked at from a different angle.
According to the opposite parties-Railway Authorities, the
petitioner is not entitled to get the benefit under the notification in
question as by the time the notification was issued, his land has been
acquired. This contention of opposite parties is not tenable as the
same project is going on and the persons of neighbouring districts will
get the benefit under the notification dated 16.7.2010, the petitioner
and similarly situated persons would be deprived of getting such
benefit merely because their lands were acquired earlier to the date of
notification for the self-same project. Such an act is definitely
discriminatory.
It may be noted here that the notification dated 16.7.2010 has been
issued to consider the applications of land losers whose lands have
been acquired on account of acquisition of land for the Project by
Railway. Further, the petitioner sought for information under the R.T.I.
Act from the East Coast Railway with regard to applicability of the
notification dated 16.7.2010 for land losers of Khurda Road-Bolangir
New B.G. Rail Link Project. The information supplied to the petitioner
reveals that the said notification pertains to land losers on account of
acquisition of land for the Project of Railways. Thus, the benefit
available under the notification dated 16.7.2010 is project based.
11. For the reasons stated above, it is difficult to accept the
contention of the opposite parties-Railway Authorities that under the
same project of the Railway, while some of the land losers are entitled
to get the benefit flowing from the notification dated 16.7.2010, the
others will be deprived of getting the same benefit.
12. In view of the above, we are of the considered opinion that
the notification dated 16.7.2010 is applicable to the case of the present
petitioner and he is entitled to the benefit flowing from the said
notification.
13. So far as the Question No. (iii) is concerned, in view of the
answer to Question Nos. (i) and (ii), the Tribunal is not justified in
dismissing the petitioner's O.A. on the ground that the land of
petitioner's family was acquired much prior to the notification dated
16.7.2010.
14. In the result, the order dated 15.1.2013 passed by the
Tribunal in O.A. No. 1032 of 2012 under Annexure-4 is set aside and
the writ petition is, accordingly, allowed. No costs.
...................................
B.N. Mahapatra, J.
I. Mahanty, J. I agree.
.............................
I. Mahanty, J.
Orissa High Court, Cuttack
Dated 14th May, 2014/ss/skj/bks
