Sitan Devi vs State and Ors.

Petitioner No. 1 is seeking appointment for petitioner No.2 in terms of SRO181 of 1988 on the ground that the Public Health Engineering

department, Udhampur took over one kanal of land belonging to the petitioner No.1 for construction of water reservoir for providing water supply

to the inhabitants of the area. The case of the petitioners is that petitioner No.1 was given assurance that her daughter i.e. petitioner No.2 will be

appointed in terms of aforementioned SRO. It is stated that despite the land having been taken over by respondents which is more than 50% of the

land owned by petitioner No.1, the respondents did not give appointment to the petitioner No.2. The further case of the petitioners is that earlier a

writ petition was filed by them being SWP No. 168/02 which was disposed of vide judgment passed by this court on 12th Feb 02, with the

following directions:

In view of the above, the respondents are directed to consider the case of the petitioner in the light of decision given in LPA No. 309/1996. They

would take a decision within a period of three months from the date, a copy of this order and also in LPA 309 of 1996 is made available to the

State authorities by the petitioner. The claims of the petitioner for compensation be also considered...

In pursuance of the aforesaid order passed by this court, the case of the petitioners was considered but the same was rejected by impugned

order dt.25th of July 02.

On notice, respondents filed objections in which it has been pleaded that the land measuring 41/2marlas at village Chanunta belonging to the

petitioner No.l was used for the construction of water reservoir in the year 198788. It is stated that the department was ready to pay

compensation to the petitioners but no assurance/promise was made to provide appointment as daily wager to petitioner No.2. It is further pleaded

that the process for assessment of compensation has been initiated in pursuance of order passed by this court in writ petition 168/02 and

respondents have also considered the claim of the petitionerNo.2 for appointment in terms of aforementioned SRO but the same has been

rejected.

With the consent of the learned counsel for the parties, the petition is admitted and taken up for final disposal.

From the facts of the case, it is clear that the respondents have infringed the fundamental rights of the petitioners not only under Article 19(l) (f)

of the Constitution of India but also under Article 31 thereof. Admittedly, the respondents have taken the land of petitioner No.l for the

construction of water reservoir. Respondents have pleaded that the land measuring 41/2marlas has been taken over whereas the assertion of the

petitioners is that one kanal of land has been taken over by the respondents in the year 198788 for the construction of water reservoir for

supplying water to the villagers. The assertion of the respondents is factually incorrect. In the impugned order it has been observed as under:

That a report from revenue agency was called which indicated that only 1 kanal land of petitioner is under reservoir. However as per report of

AEE PHE Sub Divn. Chenani only four and a half marla land stands possessed by the Department for construction of reservoir and petitioner/his

family are left with more than 19 kanals of land...

It is also admitted that neither the compensation has been assessed nor paid to the petitioners. Respondents in their objections have mentioned

that the land of the petitioners was used for the purpose of construction of water reservoir of 15000 Gallon capacity in 198788. The department is

ready to pay compensation to the petitioners. The Executive Engineer, PHE Division, Udhampur has written a letter to the Deputy Commissioner,

Udhampur (An nexure R.I with the objections) dt.6th of May'06 that the compensation of the land acquired by the department is to be paid in the

light of High court order and requested the Deputy Commissioner that the amount of compensation for the land acquired be got worked out so that

the same is paid to the owner to avoid any adverse order from the court. It is pity that the possession of the land was taken over by the respondent

department in the year 198788, without following the procedure as envisaged under the Land Acquisition Act. Sixteen years have passed since

taking over of the possession by the respondentdepartment but till date, neither the compensation has been assessed nor the same has been paid to

the petitioners. If this court would not have passed an order in SWP No. 168/02, reference of which has been made in the letter of Executive

Engineer, then the respondents might not have even written a letter to the Deputy Commissioner for assessing the compensation.

Respondents have raised an objection that only 41/2marlas of land belonging to the petitioner No.1 has been taken over but this stand of

respondents is contrary to the impugned order which has been passed after obtaininga report from the revenue agency, which report as noticed

above shows that one kanal land of the petitioner is under water reservoir.

Petitioner No.1 has pleaded that her husband late Sh. Amarnath sacrificed his life in IndoChina war in 1962 on 19th of Nov, 62, and has also

placed on record a copy of the certificate showing the particulars of the deceased. This certificate shows that the husband of the petitioner No.1

was killed in action during China aggression. The case of the petitioners is that the respondents had given an assurance that the petitioner No.2

who is the daughter of petitioner No.1 would be given employment but the respondents have deprived the petitioner No.1 of her land and have

also not fulfilled the assurance given by them. It is stated that respondents have not even paid any compensation to the petitioners. If the

respondents would not have given assurance to the petitioner No.1 for giving employment to petitioner No.2, then the petitioner might not have

allowed the respondents to take possession of the land for construction of water reservoir over the said land. Under the Constitution of India as

also under the State Constitution, the State has no right to take over the property of a citizen without following due process of law and without

paying any compensation for the same.

Learned counsel for the respondents submitted that the petitioner No.1 is claiming appointment for petitioner No.2 on the basis of SRO 181/88

which stands rescinded by another SRO 214 of 1991 dt.11th of July 91. Therefore, the question arises whether the petitioners can seek

employment on the basis of SRO which was in existence when their land was taken over. Similar question came before a Division Bench of this

court in LPA (SW) 309/96 decided on 29th of Dec 99. In the aforesaid case, it was observed as under:

The scope of SRO 181 and 214 be noticed at the first stage. Under SRO 181 if the land was acquired by the Government and the concerned

land owner was left with less than 50% of the agricultural holding then one member of the family was to be appointed against an available post at

the lowest rank of the cadre for which such a person was eligible. This was to be done without reference to the Recruitment Board, This

notification issued on 3rd June 1988 as indicated above was rescinded on 11th July 1991. The respondentwrit petitioners submit that once a right

came to vest in their favour then this could not be taken away. Any person whose land was acquired during the operation of the SRO 181 was

entitled to appointment in pursuance of the above notification.

The concept of giving appointment to a person whose land is acquired is a concept which has been judicially recognized. In Calcutta Port Trust v.

Deba Prasad Bag. 1995 Supp(1) SCC 454, in terms of a Government Memorandum, person whose land was acquired were entitled to cert6ain

benefits. A committee was constituted by the Government forscreening the cases. The respondentclaimants refused to appear in the committee.

They wanted their cases to be examined by the Screening Committee as was set up by the Government. It was observed that there is merit in this

submission of theirs.

This court in Hari Ram v. State and ors, 1993(3) SCT 87 took note of the policy decision and expressed an opinion that where a person is

deprived of the land then he becomes entitled to appointment, in terms of the promise held out by the State. What was stated in paragraph 2.and 4

of the petition is reproduced below:

The short point involved in this petition is about the grievance of the petitioner in not having been appointed as a Chowkidar despite clear and

categorical promise made to him by the respondents in lieu of the respondents having taken over land of the petitioner measuring one kanal and

seven marlas comprising in khasra No.457 min in village Parshola. Tehsil Doda district Doda. The petitioner's case is that respondents wanted to

construct a water reservoir in the village because no one was corning forward to offer his land for tins public purpose, the petitioner was ready and

willing to offer his land, to the respondents on the condition of his being absorbed as a Chowkidar in Govt. Service and appointed to look after the

reservoir itself. The petitioner's submission is that the respondents agreed to his condition, took over the land from him and constructed a water

reservoir thereon, while the respondents took over the land from the petitioner, they extended unconditional and unequivocal promises and

assurances to him that in lieu of the land, he shall be appointed as a Chowkidar. The petitioner's grievance is that respondents have backed out

from their promises and assurances and have not fulfilled the same, thus causing injustice to him, compelling him to approach this court for the grant

of aforesaid relief. Because the petitioner was deprived of his land and because in consideration of his land having been taken over, he was

extended unequivocal promises and assurances, respondents cannot be allowed to back out. Respondents are under a legal obligation to fulfil their

assurance and promises.

It was further observed as under:

....Even otherwise, no person can be deprived of his property except by due course of law. The respondentwrit petitioners were entitled to

compensation. It has not been paid to them. Therefore, they are well within their rights to contend that upto the issuance of notification SRO 214

any person whose land was acquired was entitled to get employment with the State. In view of the above, we are of the opinion that so long as the

notification in question was in operation and was notrescinded, the respondent writ petitioners would be entitled to the benefits of the same

In the case in hand, as per the Jamavandi for the year 198788, in khewat No.414, there are other cosharers also and the entire holding of the

petitioner No.1 is shown as 2 1 kanals. Thus, the assertion of the respondents that the petitioner No.1 owns 19 kanals of land is falsified from the

revenue record. Out of two kanals, respondent department has taken over 1 kanal of land, therefore, as per SRO 181/88 and the law laid down

by the Division Bench of this court in the case supra, the petitioner No.2 is to be given appointment as the petitioners are left with 50% of their

holding.

In view of the above discussion, this petition is disposed of with the following directions:

(1) The order impugned dt. 25th of July'02, passed by the Executive Engineer, PHE Division, Udhampur, rejecting the claim of the petitioner No.2

for appointment in PHE department shall stand quashed;

(2) That the Deputy Commissioner, Udhampur, shall assess the lease money with respect to one kanal of land belonging to petitioner No.1 taken

over by the respondent department w. e. f. the date it was taken over till today. The assessment would be done within a period of three months

from the date a copy of this order is made available to the said officer;

(3) The Deputy Commissioner, Udhampur, shall also assess the compensation of the land taken over by the respondent department taking into

consideration the present market value and as per the provisions of the Land Acquisition Act. This assessment would be done within the same

period as mentioned above and thereafter the lease amount as also the amount of compensation shall be released in favour of the petitioner No.1

within a further period of one month;

(4) Respondents shall also consider the claims of the petitioner No.2 for appointment within the period stipulated above;

(5). Petitioner No.1 is also held entitled to cost of Rs.10,000, which shall be paid by respondentdepartment within the same period as mentioned

above.