Gujarat High Court
Rameshbhai Dhulabhai Mata (Dhanani) vs State Of Gujarat on 12 January, 2023
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh Shastri
C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5142 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 20088 of 2022
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RAMESHBHAI DHULABHAI MATA (DHANANI) & 1 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance in Special Civil Application No.5142 of 2014:
MR KIRTIDEV R DAVE(3267) for the Petitioner(s) No. 1,2
MR KM ANTANI, AGP for the Respondent(s) No. 1
MR ASPI M KAPADIA(1865) for the Respondent(s) No. 2
RULE NOT RECD BACK for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 3
Appearance in Special Civil Application No.20088 of 2022:
MR MB MANGUKIYA (437) for the PETITIONERS
MR KM ANTANI, AGP for the Respondent- STATE
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
Date : 12/01/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. Both these petitions since are arising out of a common challenge and grievance which are identical in nature, with request of learned advocates, hearing has taken place together and both these petitions are being dealt with by present common order.
2. So far as Special Civil Application No.5142 of 2014 is concerned, facts of the case are that petitioners are Page 1 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 agriculturists, having their agricultural lands in the sim of village Ratnal of Anjar Taluka of Kutchh district and are carrying on agricultural activity. Respondent authority had decided to lay down pipeline in the lands of the petitioners and other villages for transmitting of gas and for that purpose, pipeline for gas was intended to be installed passing through the fields of the petitioners and other persons and for laying down such pipeline, respondent authority had resorted to the provisions of Gujarat Water and Gas Pipelines (Acquisition of Right of User in Land) Act, 2000 (hereinafter referred as 'Act of 2000'). After initiating such action, as indicated above, respondent No.2 was pleased to pass an award for compensation on 20.7.2013 and since said action is in utter disregard to their property rights and same being adversely affected, they have chosen to approach this Court by way of present petition under Article 226 of the Constitution of India.
3. It is the assertion of the petitioner that earlier, petitioners along with other persons submitted Public Interest Litigation being WP (PIL) No.331 of 2013, but since petitioners had personal interest in the matter, i.e. the land, said writ petition in Page 2 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 the form of Public Interest Litigation was not entertained with a liberty to move for other appropriate remedy and said petition was disposed of on 19.12.2013. Resultantly, petitioners have submitted present petition and to ventilate their grievance, petitioners have challenged legality and validity of the provisions of Section 10 of the Act being ultra-vires, illegal, unconstitutional and as such prayed for following reliefs:-
a. Your Lordships be pleased admit this petition.
b. Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction holding that the provision of sec. 10 of the Act restricting the compensation only up to 10% of the Market price is ultravires, illegal. unconstitutional and those be quashed and set aside.
c. Your Lordships be pleased to grant any other relief's as may be deemed fit in the facts and circumstances of the case.
The petition was admitted by virtue of order dated 17.6.2014 by previous Coordinate Bench and since same is pending.
4. Later on, cognate petition being Special Civil Application No.20088 of 2022 came to be filed by 10 persons raising almost similar grievance and have also challenged constitutional validity of the provisions of Gujarat Water and Gas Pipelines (Acquisition of Right of User in Land) Act, 2000 and sought to declare the same as ultra-vires and also prayed for other Page 3 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 alternate reliefs. Relief Clause of this petition reads as under:-
(A) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, or any other appropriate writ, order or direction and hold and declare all the provisions of the Gujarat Water and Gas Pipeline (Acquisition of Right of User in Land) Act, 2000 (Gujarat Act No. 5 of 2000) to be ultra vires, (B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, or any other appropriate writ, order or direction and hold and declare that the respondents have no right, authority or competence to acquire the rights of the users without providing for compensation for acquisition of any right of user.
(C) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, or any other appropriate writ, order or direction and hold and declare that the right acquired of the users for laying down of pipeline by the respondents is ultra vires and therefore, the right acquired are required to be declared as ultra vires and all actions taken in pursuance of so called rights including laying down of the pipeline be held without any authority of law and direct the respondents to remove the pipelines laid down in the lands of the petitioners.
ALTERNATIVELY (C) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, or any other appropriate writ, order or direction and direct the respondents to pay the compensation of rights of user acquired by the respondents at the market rate of the land in question;
(D) Pending hearing and final disposal of this petition be pleased to restrain the respondents from using right of users by entering in the lands of the petitioners.
(E) Be pleased to grant such other and further relief/s as may be deemed fit, just and proper, in the interest of justice. Page 4 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023
5. The background of this cognate petition is that petitioners are holding agricultural lands in village Bakor of District Mahisagar on 13.3.2022. Respondent No.4 of this petition was pleased to issue a notification in purported exercise of powers under sub-section (1) of Section 3 of the Act, inviting objections as the authority is inclined to lay down pipeline in survey numbers mentioned in the notification. It is the case of the petitioners that objections were supposed to be submitted within one month from the date of publication of the notification, but from 23.3.2020, on account of spread of Corona being Covid-19 pandemic, first lock down was declared, but then since some relief was granted by enlarging the time, petitioners raised first objection on 3.6.2020. A request simultaneously was also made to supply map indicating alignment of pipelines but then authority had not submitted and on account of this pipeline being laid down, 200 meters away from Babaliya- Pandarvada Highway and if said location of line if changed, several lands of farmers can be saved. Petitioners as such submitted objection against such action of laying down of pipe, but vide communication dated 5.8.2020, respondent No.4 Page 5 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 intimated to the petitioner that application raising objection being time barred, same cannot be accepted.
6. It is the case of these petitioners that since representations were made before various authorities on 5.12.2020, respondent No.4 informed sitting MLA indicating that almost 90% work of laying down of pipelines has already been completed and very few farmers are objecting and has indicated that on account of such work, agricultural activity of the farmers is not getting hampered since merely a right of user is being acquired and as such, none of the farmers are on the contrary suffering. Petitioner No.1 and other farmers then requested respondent authority on 14.12.2020 that on account of Covid-19 pandemic, no specific objection could be raised and lands of petitioners are falling within radius of merely 2 kilometers from bus-stand of village Bakor and as such agricultural lands of petitioners are likely to be utilized for commercial as well as residential purpose. Later on 30.1.2021, respondent No.4 had issued notification under Section 4 of the Act indicating about acquisition of right of user in the lands of petitioners as well as others. State authority through its Under Page 6 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 Secretary has informed the sitting MLA on 30.1.2021 that contract of laying down of pipeline has been given to one Krishna Construction Company and Ohm & Yash as a joint venture on 6.5.2020 with a time schedule of 11 months. Petitioners raised specific objection against notification dated 30.1.2021 issued under Section 7 of the Act and some other two villagers of same vicinity have also filed a writ petition being Special Civil Application No.2627 of 2021. Learned Single Judge had taken up hearing on 8.2.2021. Respondent No.4 having realized some mistake which has crept in, had issued an amended notification on 17.2.2021 in exercise of powers under Section 3 as well as Section 6 of the Act and land bearing Survey No.626 has also been added. To this corrigendum notification, petitioners after giving full details have raised specific objection on 2.3.2021 and later on, hearing was fixed by the authority on 15.3.2021 which came to be intimated vide communication dated 10.3.2021 by the office of respondent No.4.
7. It is the case of petitioners of this petition that petitioners did appear before respondent No.4 and during the course of Page 7 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 hearing process, written submissions were also tendered. It was specifically pointed out that alignment of pipeline is very wrong and if same can be shifted to some 12 to 30 meters from central line of the road, valuable agricultural land of the farmers may not suffer. It was also pointed out as per the petitioners that pipelines have been laid at the distance of 100 - 170 meters from the central line of road which is impermissible since as per the norms, 40 meters margin is required to be kept open from central line of the road. Despite aforesaid situation, on 19.3.2021, yet another notification came to be issued by State authority in purported exercise of power under Section 6 of the Act, indicating about the action being also taken under Section 3 of the Act.
8. It is the further case of petitioners that on 5.4.2021, one another notification came to be issued by State Government published in Official Gazette and as such petitioner No.8 of this petition had earlier approached this Court by way of Special Civil Application No.2627 of 2021 which petition came to be disposed of vide oral order dated 12.7.2021. Whereas, petitioner Nos.1 to 8 filed Special Civil Application No.4199 of 2021 along Page 8 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 with another person named as Ms. Maniben Ramshankar Joshi. Since said petition was filed, Ms. Maniben Ramshankar Joshi is not inclined to prefer present petition and in the said petition, notices were issued. However, petitioners would not incline to proceed with the said petition since contention was raised by respondent authority that no compensation is payable to farmers whose lands are sought to be used under right of users and as such since that stand being taken by authority, petitioners have decided to challenge vires of provisions of the Act itself and said petition, i.e. Special Civil Application No.4199 of 2021, would be withdrawn with a liberty to prosecute present petition.
9. It is the grievance of petitioners that during pendency of the said petition, respondent No.4 sought police protection and office of the Superintendent of Police, Mahisagar issued an order on 8.6.2021 providing police bandobast for facilitating the authority to lay down pipeline from 10.6.2021 to 12.6.2021 and as such before said petition could be heard by Hon'ble Court, authority wanted to finish the work of laying down. On the contrary, in the meantime, petitioner No.7 who possessed land Page 9 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 bearing Survey No.622 of village Bakor wanted to use the land and as such, had applied for conversion from agriculture to non- agriculture use and for that purpose, submitted an application before the authority and upon receipt of the same, concerned Town Planner has also opined in favour of conversion vide opinion dated 4.10.2019.
10. It is in this background of facts, since there is no provision in the Act to provide acquisition right after payment of compensation and as such scheme of the Act itself is in conflict with the constitutional guarantees particularly enshrined under Part-III read with Article 300A of the Constitution of India and therefore, by way of present petition under Article 226 of the Constitution of India, provisions of Sections 5, 6, 7 and 8 of the Act are requested to be declared as ultra-vires.
11. Since grievance of both these petitions are almost centering around the relevant provisions of the Act of 2000, this petition being similar to previous one was ordered to be listed along with it by virtue of order dated 17.10.2022 and with aforesaid background, both these petitions came up for Page 10 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 consideration before this Court in which learned advocate Mr. Kirtidev R. Dave has represented petitioners of Special Civil Application No.5142 of 2014, whereas learned advocate Mr. B.M. Mangukiya has appeared for petitioners of Special Civil Application No.20088 of 2022 and respondent authorities were being represented by learned Assistant Government Pleader Mr. K.M. Antani and learned advocate Ms. Dilshad A. Kapadia for respondent No.2 authority in the petition of 2014.
12. Learned advocate Mr. Kirtidev R. Dave appearing on behalf of petitioners of petition of 2014 has submitted that under the scheme of Act, no-doubt, powers are made available for respondent authority to invoke right to use of land for laying down pipeline, but then compensation which has been prescribed under sub-section (4) of Section 10 of the Act is too meagre amount and absolute reflection of arbitrary powers to provide such inadequate compensation and as such, provisions of Section 10 itself is arbitrary and unconstitutional. It has been contended that land has been purchased on 4.6.2012 at a purchase rate of Rs.2473.68 per Sq. Mtr., whereas land bearing Survey No.133/1 (112) has been purchased by a sale deed dated Page 11 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 4.6.2012 at a rate of Rs.1507.29 per Sq. Mtr. and therefore, price on the basis of such figure if to be determined by way of compensation with 10% cap, fixation of compensation would be absolutely arbitrary, discriminatory and would keep a leverage for determining even 10% without any proper base in market value vis-a-vis jantri value is illusory in nature. This provision of Section 10 permitting the authority to determine compensation is absolutely rendering the object of providing compensation nugatory. According to Mr. Dave, question involved is not of inadequacy of compensation merely but it relates to legality of notification and as such once pipeline is laid down by authority, petitioners would be kept outside from seeking just and proper compensation and therefore, if provisions as indicated above are allowed to stand in the Statute book, same would defeat the very purpose of principle of just and fair compensation and as such, in this petition, Mr. Dave has challenged legality of Section 10 of the Act which has restricted the compensation upto 10% of market value only and has submitted that provision is arbitrary, un-canalized and not sustainable on the touchstone of principles of fundamental rights guaranteed to the Page 12 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 petitioners. No other submissions have been made.
13. Mr. B.M. Mangukiya, learned counsel appearing for petitioners of Special Civil Application No.20088 of 2022 has submitted that sub-section (4) of Section 10 of the Act is quite in conflict with Article 300A of the Constitution of India and by referring to paragraphs 30 to 32 of the petition compilation, he has asserted as to how and in what manner, rights are getting affected of petitioners. Lands are fertile lands and authority under the right to user acquisition is practically damaging the land permanently as no agricultural operation would then be possible and as against this, a close perusal of the entire scheme of the Act would indicate that there is no provision under the Act indicating to provide for acquisition of right after making payment of compensation for acquisition of such right and therefore, scheme of the Act itself is in conflict with the constitutional mandate particularly Article 300A of the Constitution of India and as such, Sections 5, 6, 7 and 8 along with Section 10 of the Act are required to be held as ultra-vires to the constitution.
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14. Mr. B.M. Mangukiya has further submitted that State legislature is not empowered to enact any law whereby State acquires right over the land without providing proportionate amount of compensation for such acquisition. Once pipelines are being laid down, status of property would not remain the same and several restrictions would be imposed upon land owners once pipeline is being laid after acquiring rights of the users. Once the pipeline is laid down, no construction is permissible, no agricultural activity can be undertaken and on account of same, market value of the land would also get diminished to a substantial extent. This right of user practically is permanent acquisition in different form since petitioners and land owners are unable to carry out any agricultural activity or any such activity over the land, as such this absolute power vested in the authority is arbitrary and discriminatory treatment being meted out.
15. Learned advocate Mr. Mangukiya has further submitted that take a case of petitioner No.7 who wanted his land being converted into non-agriculture use and for conversion, specific application was also made before competent authority and even Page 14 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 Town Planner has sanctioned a layout plan by expressing his opinion in favour of conversion, vide his opinion dated 4.10.2019 and same would be the case with several persons and the moment pipeline is being laid down future potentiality of the land would be marred, hence this absolute powers being malicious and authority has divided the alignment of line to favour some of the land owners who are influential enough in the area and as such, this malafide action deserves to be considered being alternate to extend the relief as prayed for in the petition.
16. Mr. B.M. Mangukiya has further submitted that though notice has already been issued, respondent authority has chosen not file any reply, which indicates that averments with regard to malafide are not being disputed, same are tacitly to be treated as admitted and as such also relief prayed for deserves to be granted.
17. Land owners are specifically conferred with fundamental rights and their lands cannot be taken in this manner, even without assessing or paying reasonable compensation before Page 15 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 taking possession and therefore under this set of circumstance, when petitioners are being prejudicially affected and action is being taken by respondents contrary to the constitutional principles, provisions as mentioned in the relief are required to be declared as ultra-vires since they are clearly infringing the fundamental rights of petitioners. Hence, he has requested to grant the reliefs as prayed for in the petition.
18. To substantiate his contentions, learned advocate Mr. B.M. Mangukiya has referred and relied upon following decisions:
(1) Decision of Hon'ble Apex Court in the case of Ram Chand Vs. Union of India reported in (1994) 1 SCC 44;
(2) Decision of Hon'ble Apex Court in the case of Lalaram and others Vs. Jaipur Development Authority and Another reported in (2016) 11 SCC 31;
(3) Decision of Hon'ble Apex Court in the case of Ahmedabad Municipal Corporation vs. Ahmedabad Green Belt Khedut Mandal reported in (2014) 7 SCC
357.
19. As against this, learned Assistant Government Pleader Mr. K.M. Antani has in the lead matter i.e. Special Civil Application No.5142 of 2014 made reference to the detailed affidavit-in- reply filed in said petition and stand taken in the cognate Page 16 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 petition and has vehemently submitted that none of the provisions of the Act are ultra-vires and arbitrary which confers an absolute power in an authority. Mr. Antani has submitted that on the contrary, State authorities are legislatively competent enough to prescribe a provision and enact a law and as such once law is enacted, judicial review of such competence may not be so lightly exercised at the instance of petitioners. To strengthen his submissions, Mr. Antani has made a reference to two decisions; one delivered by Hon'ble Apex Court and another delivered by High Court of Madras. By making reference to the decision delivered by Hon'ble Apex Court dated 5.10.2016 in case of Laljibhai Kadvabhai Savaliya Vs. State of Gujarat in Civil Appeal No.10019 of 2016, by referring to paragraph 19, a contention is raised that none of the submissions of learned advocate for petitioners are worthy acceptance in view of said law and as such present petition being devoid of merits, deserves to be dismissed. A reference is also made to paragraph 6.1.2 to 6.1.7 of Madras High Court decision dated 26.3.2004 to contend none of the reliefs prayed for deserves any consideration. Hence, petition may be dismissed. Page 17 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023
20. In addition to this, learned advocate appearing on behalf of respondent No.2 has also filed a detailed affidavit to oppose the petition and has vehemently contended that ROU Act, i.e. Right of User Act 2000 does not provide any outright acquisition of land nor completely divesting the ownership of such land and/ or its title from the original owner. Said Act is merely providing for acquisition of right of user only for enabling purpose namely laying down of water and gas pipeline and after work of pipeline being over, land is getting resurfaced and possession thereof is handed over back to the land owner and possession and title continuously are to be with the land owner and as such keeping with the object of Act, grievance if tested on the touchstone of the principles, challenge made is not sustainable in the eye of law. On the contrary, adequate amount of compensation under the provisions of Section 10 was being paid on the basis of the market value of the land as on the date of publication of the notification. The Act has also provided a remedy to land owner to claim what actual damage or loss that he might have incurred including loss of crop or trees and Section 2 of the Act has also provided an application which is also a remedy of appeal before Page 18 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 competent authority, if the land owner is dissatisfied with award of compensation by competent authority. A perusal of the scheme of the Act indicates that compensation for acquisition of right of user is payable and calculated at 10% of market value of land under sub-section (4) of Section 10 and sub-section (5) has also provided a remedy to an affected land owner to apply or appeal to the Collector if dissatisfied with the award of compensation. Since provisions are adequately safeguarding the land owners' right, provisions are just and proper and petition is misconceived by referring to entry No.42 of the list-III (Concurrent List) of 7th Schedule which has conferred legislative competence upon Center as well as States to enact a law on the subject of acquisition of property the issue of competency of State legislature is to be upheld. Under principle of 'eminent domain', citizen holds his property which is always subject to right of sovereign to take it for a public purpose. Quantum of compensation to be paid is as such fundamentally a legislative function and after due deliberation and thoughtful process, legislature has prescribed payment of 10% of market value as compensation for acquisition of mere right of user. Since Page 19 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 possession and outright title is not getting affected in any manner, provisions cannot be said to be either arbitrary or unconstitutional in any manner. On the contrary, whenever there is a conflict between public interest and private interest, private interest has to yield to public interest and as such, by referring to the decision delivered by Hon'ble Apex Court in the case of Jilubhai Nanabhai Kachar reported in 1995 Suppl.(1) SCC 596, it has been contended that Hon'ble Apex Court has extensively dealt with aspect of validity of law on account of inadequacy of compensation and as such has submitted that none of the provisions can be said to be arbitrary or ultra-vires in any form. He would contend that scheme of the Act is full- proof, cannot be said to be unjust or even arbitrary. By referring to a decision delivered by High Court of Madras, wherein question of validity of Section 10 was examined, it has been contended that said challenge was not entertained, hence there appears to be no merit in the petition.
21. Having heard learned advocates appearing for the parties and having gone through the material on record, before dealing with the main grievance with regard to provisions of the Act of Page 20 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 2000, which are under challenge, we deem it proper to postulate legal proposition relevant to the issue. (1) It is trite law that power of eminent domain was a well recognized principle, which indicates that sovereign State can always acquire the property of a citizen for public good even without the owners consent. The power to acquire private property for public use is an attribute of sovereignty and is essential to the existence of a government. Later on, either in the Constitution or in the Act enacted for that purpose, not only this power was recognized but limitations on exercise of a such power were prescribed for striking a balance between the interest of the public and the individual. It is also a settled proposition of law that while interpreting and examining any of the Statutes, intention and object behind Statute also would be expedient to be considered. In the year 1995 in the case of Jilubhai Nanbhai Khachar, etc. v. State of Gujarat and others reported in AIR 1995 SC 142, Hon'ble Apex Court has observed that, "Though Articles 31 and 19(l)(f) of the Constitution accorded to "property" the status as a fundamental right, there emerged conflict between the animation of the founding fathers Page 21 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 and the judicial interpretation on the word "compensation" when private property was expropriated to sub-serve common good or to prevent common detriment.......". Concomitantly legislature has power to acquire the property of private person exercising the power of eminent domain by a law for public purpose. The law may fix an amount or which may be determined in accordance with such principles as may be laid therein and given in such manner as may be specified in such law. However, such law shall not be questioned on the grounds that the amount so fixed or amount determined is not adequate. The amount fixed must be not be illusory. The principles laid to determine the amount must be relevant to the determination of the amount. ..... We are conscious that the Parliament omitted Article 31(2) altogether. However when the Stale exercises its power of eminent domain and acquires the property of a private person or deprives him of his property for public purpose, concomitantly fixation of the amount or its determination be must in accordance with such principles as laid therein and the amount given in such manner as may be specified in such law. (2) Yet in another decision delivered by the Hon'ble Apex Page 22 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 Court in the case of Ashutosh Gupta v. State of Rajasthan and others reported in AIR 2002 SC 1533 has observed that, "There must be proper pleadings and averments in the substantive petition before the question of denial of equal protection of infringement of fundamental right can be decided. There is always a presumption in favour of the constitutionality of enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity possess in making laws operating differently as regards different groups of persons in order to give effect to policies. It must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience. Even while dealing with Article 31A, 2 nd proviso, the Hon'ble Apex Court in the case of Ishwari Khetan Sugar Mills (P) Ltd. vs. The State Of Uttar Pradesh & Ors., reported in AIR 1980 SC 1955 and several cases which have been considered, propounded that there is no fundamental right to hold property. Page 23 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 But, the right to compensation on compulsory acquisition is still available under the second proviso to Article 31A subject to the limitation as specified therein.
(3) It has been observed in one of the decisions delivered by Hon'ble the Apex Court in the case of Ahmedabad Municipal Corporation vs. Ahmedabad Green Belt Khedut Mandal reported in 2014 (7) SCC 357 that Article 300A of the Constitution though creates a human right being a constitutional provision, but is not a fundamental right. Article 300A provides that no person can be deprived of his property except by authority of law.
(4) While dealing with Town Planning statute, a reference is also made to a decision of the Constitutional Bench in the case of State of Gujarat v. Shantilal Mangaldas reported in AIR 1969 SC 634. Examining the scheme, few observations have been made with regard to an issue of compulsory acquisition or requisition for public purpose. Paragraph 22 quoted in paragraph 34 of (2014)7 SCC 357, observations contained therein deserve to be quoted hereunder:-
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C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023
"22. The following principles emerge from an analysis of Clauses (2) and (2A): compulsory acquisition or requisition may be made for a public purpose alone, and must be made by authority of law. Law which deprives a person of property but does not transfer ownership of the property or right to possession of the property to the State or a corporation owned or controlled by the State is not a law for compulsory acquisition or requisition. The law, under the authority of which property is compulsorily acquired or requisitioned, must either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be determined and given.
If these conditions are fulfilled the validity of the law cannot be questioned on the plea that it does not provide adequate compensation to the owner................ The first contention urged by Mr. Bindra cannot, therefore, be accepted.........The principal argument which found favour with the High Court in holding Section 53 ultra vires is that when a plot is reconstituted and out of that plot a smaller area is given to the owner and the remaining area is utilised for public purpose, the area so utilised vests in the local authority for a public purpose, and since the Act does not provide for giving compensation which is a just equivalent of the land expropriated at the date of extinction of interest, the guaranteed right under Article 31(2) is infringed................There is no vesting of the original plots in the local authority nor transfer of the rights of the local authority in the reconstituted plots.
(5) Further, it is a settled law that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. On the contrary, it is the duty of the Court to give effect to the statutory provision under all circumstances. Merely because person suffering from hardship cannot be a ground for not giving effective and grammatical meaning to every word of Page 25 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 the provisions if the language used therein is unequivocal. Said proposition is well settled in the decisions reported in AIR 1966 SC 529 (in the case of Martin Burn Ltd. v. The Corporation of Calcutta) well as (2009) 16 SCC 659 (in the case of Tata Power Company Ltd. Vs. Reliance Energy Ltd.) and also AIR 2013 SC 30 (in the case of Rohitash Kumar and others Vs. Om Prakash Sharma and Others).
(6) Hon'ble the Apex Court in the case of M/s. Easland Combines Coimbatore v. Collector of Central Excise Coimbatore has held and observed in paragraph 15 as under:-
15. In our view, it would be difficult to accept the aforesaid contention. It is well settled law that merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object. It is also to be remembered that the Courts are not concerned with the legislative policy or with the result, whether injurious or otherwise, by giving effect to the language used nor it is the function of the Court where the meaning is clear not to give effect to it merely because it would lead to some hardship. It is the duty imposed on the Courts in interpreting a particular provision of law to ascertain the meaning and intendment of the Legislature and in doing so, it should presume that the provision was designed to effectuate a particular object or to meet a particular requirement. Re: Firm Amar Nath Basheshar Dass v. Tek Chand, [1972] 1 SCC 893.
(7) In the case of Bihari Chowdhary and Another Vs. State of Bihar and others report in AIR 1984 SC 1043, Hon'ble the Apex Court has held in paragraph 4 as under:-
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4. When the language used in the Statute is clear and unambiguous it is the plain duty of the Court to give effect to it and considerations of hardship will not be a legitimate ground for not faithfully implementing the mandate of the legislature.
(8) In the light of the aforesaid proposition, which is staring on the face of the present controversy, we may further deem it proper to take note of the proposition on the issues of exercise of extraordinary jurisdiction when the provisions of the Act are under challenge. The decision in the case of Mohd. Inam Vs. Sanjay Kumar Singhal and Others reported in (2020)7 SCC 327 of the recent past also cannot be lost sight of and as such we may deem it proper to quote relevant paragraph hereunder:-
"34. It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on a catena of judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde & Ors. vs. Millikarjun Bhavanappa Tirumale, Bathutmal Raichand Oswal vs. Laxmibai R.10 (1960) 1 SCR 890 37 Tarta & Anr.11, M/s India Pipe Fitting Co. vs. Fakruddin M. A. Baker & Anr.12, Ganpat Ladha v. Sashikant Vishnu Shinde, Mrs. Labhkuwar Bhagwani Shaha & Ors. vs. Janardhan Mahadeo Kalan & Anr., Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, Venkatlal G. Pittie and another vs. Bright Bros (Pvt.) Ltd., State of Maharashtra vs. Milind & Ors., State Through Special Cell, New Delhi vs. Navjot Sandhu Alias Afshan Guru and others, Ranjeet Singh vs. Ravi Prakash, Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) Through LRs. and others, Celina Coelho Pereira (Ms.) and others vs. Ulhas Mahabaleshwar Kholkar and others."Page 27 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023
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22. In the light of the aforesaid set proposition of law, when we turn back to the Act of 2000, which is under challenge, we may observe that this Act of 2000 is enacted to provide for acquisition of right of user in land for laying water pipelines and gas pipelines in the State of Gujarat and for the matters connected therewith said Act has prescribed certain provisions to achieve the object for which it has been brought to the Statute book. At this stage, we may also observe that undisputedly, legislative competence is not being agitated so vociferously but still legislative competence is visible as can be seen from entry No.42 of list-III (Concurrent List) of 7 th Schedule, which confers legislative competence upon Center as well as States to enact law for acquisition of property and as such, legislative competence is not a center of controversy raised by petitioners in the present proceedings and if we peruse that, we may keep in mind the principle of 'eminent domain' that citizen holds his property subject always to the rights of sovereign to take it for public purpose and prescription of quantum of compensation to be paid is fundamently a legislative function and legislature in its collective wisdom may Page 28 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 prescribe quantum. So, it appears that Act has come into force with certain provisions and to understand the scheme of the Act, we may refer in brief some relevant provisions.
(i) Act of 2000 was enacted with an object, as stated above and extends to whole of State of Gujarat and by virtue of Section 3, whenever it appears to State Government that it is necessary in public interest that for transport of water or as the case may be, gas from one area to another area, pipelines may be laid by the State Government or the Corporation and that for the purpose of laying such pipelines, it is necessary to acquire right of user in any land under which such pipelines may be laid, it may, by notification in the Official Gazette, declare its intention to acquire the right of user therein. After publication of such notification, objections are also to be invited and hearing is to be provided by virtue of Section 4, which has prescribed manner in which hearing be afforded.
(ii) Section 5 of the Act prescribes and invests power to Page 29 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 enter, survey or to take all measures for proposing to lay down pipelines either for transporting water or gas and after making such survey and by entering into respective lands, declaration of acquisition of right of user will have to be made by virtue of Section 6 of the Act and such procedure being observed at length, when such right of user in any land has been vested in the State Government or as the case may be, Corporation or authority, measures are even prescribed in case of any grievance for its redressal under sub-section (2) of Section 7. Section 7 also clearly provide that such over right of user being exercised shall be used only for laying down pipelines and for maintaining, examining and removing any such pipelines or for doing any necessary things for aforesaid purpose for utilization of such pipelines. By virtue of Section 8, power is invested in an authority to enter into a land for inspection for such pipeline and for taking all such acts related to such pipelines and if it is found that any emergency exists, even without notice, said power can be exercised of entering into land.
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(iii) Act of 2000 further provides clear restrictions regarding use of land and owner or occupier of land has not to do anything which is likely to cause any damage to the pipelines in whatsoever manner. Such restrictions to some extent are prescribed under Section 9, with a view to strike balance between private right of an owner vis-a-vis public purpose. A compensation provision has also been made under Section 10 of the Act. In the first petition, i.e. Special Civil Application No.5142 of 2014, main challenge is made with regard to this Section 10 of the Act, whereby compensation of a particular percentage is prescribed, but we may deal with the same at a later point of time. Under Section 10 of the Act, it is provided that where in the exercise of the powers of such right of user either under Sections 5, 7 or 8, any damage, loss or injury if sustained by any person interested in land under which pipeline is proposed to be or is being or has been laid, State Government or Corporation, as the case may be, shall be liable to pay compensation to such person for such damage, loss or injury, amount of which shall be Page 31 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 determined by competent authority in first instance and competent authority is already defined under the Act. From the provisions of Section 10, it further appears that in addition to the aforesaid amount of compensation, sub- section (4) has also provided that where right of user of any land has vested in State Government or Corporation, as the case may be, it shall in addition to compensation if payable under sub-Section (1) is made, further liable to pay to the owner or to any other person whose right of enjoyment in that land has been affected in any manner and such compensation is to be calculated at 10% of market value of that land as on date of publication of notification under sub-section (1) of Section 3 and how market value of land is to be determined is also provided under the provision. Hence, we deem it proper to postulate hereunder the provision of Section 10:-
10.(1)Where in the exercise of the powers conferred by sections 7 or 8 by any person any damage loss or injury is sustained by any person interested in the land under which the pipeline is proposed to be, or is hang or has been laid the State Government or as the case may be the Corporation shall be liable to pay compensation to such person for such damage loss or my the amount of which shall be determined by the competent authority in the first instance.Page 32 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023
C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 (2) If the amount of compensation determined by the competent authority under sub-section (1) is not acceptable to either of the parties the amount of compensation shall on application by either of the parties to the Collector within the limits of whose jurisdiction the land or any part thereof is situated be determined by that Collector.
(3) The competent authority or as the case may be the Collector while determining the compensation under sub-section (1) or as the case may be sub- section (2), shall have due regard to the damage or loss sustained by any person interested in the land by reason of-
(i) the removal of trees or standing crops. if any on the land while exercising the powers under section 5.7 or as the case may be section 8;
(ii) the temporary severance of the land under which the pipeline has been laid from other lands belonging to, or in the occupation of such person, or
(iii) any injury to any other property whether movable or immovable, or the earnings of such persons caused in any other manner.
Provided that in determining the compensation no account shall be taken of any structure or other improvement made in the land after the date of the publication of the notification under sub-section (1) of section 3.
(4) Where the right of user of any land has vested in the State Government or, as the case may be the Corporation it shall, in addition to the compensation, if any, payable under sub- section (1), be liable to pay to the owner and to any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such vesting, compensation calculated at ten per cent of the market value of that land on the date of the publication of the notification under sub-section (1) of section 3.
(5) The market value of the land on the said date shall be determined by the competent authority and if the value so determined by that authority is not acceptable to either of the parties, it shall on application by either of the parties to the Collector referred to in sub-section (2) be determined by that Collector.
Page 33 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 (6) The decision of the Collector under sub-section (2) or (5) shall be final.
(iv) Further, Section 11 of the Act has provided that where amount of compensation is determined under Section 10, same shall be deposited by State Government or the Corporation with competent authority within such time and in such manner as may be prescribed and to avoid possible dispute with regard to such compensation or apportionment of issue, a clear redressal mechanism is provided in this Section 11 and as such, we deem proper to reproduce hereunder:-
11.(1) The amount of compensation determined under section 10 shall be deposited by the State Government or as the case may be, the Corporation with on the competent authority within such time and in such manner as may be prescribed.
(2) If the amount of compensation is not deposited within the time prescribed under sub-section (1), the State Government or as the case may be the Corporation shall be liable to pay interest thereon at the rate of nine per cent at the amount of compensation is deposited within one year after the period prescribed under sub- section (1) and at the rate of fifteen per cent if the amount of compensation is deposited after the expiry of the said one year.
(3) As soon as may be after the compensation has been deposited under sub-section (1) the competent authority shall on behalf of the State Government or as the case may be the Corporation pay the compensation to the persons entitled thereto.
Page 34 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 (4) Where several persons claim to be interested in the amount of compensation deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the compensation and the amount payable to each of them.
(5) If any dispute arises as to the apportionment of the compensation or any part thereof or as to the persons to whom the same or any pan thereof is payable. the competent authority shall refer the dispute to the Collector within the limits of whose jurisdication the land or any part thereof is situated and the decision of the Collector thereon shall be final.
(v) From the reading of the Act, further protection is provided in the action taken in good faith. A bar of jurisdiction of civil court that is provided by virtue of Section 14 of the Act and penal consequences are also provided in Section 15 of the Act in case any person is willfully obstructing or trying to destroy or damage or does anything with regard to such pipelines in any detrimental manner; penal consequences are stipulated under the Act and certain offences are made cognizable by virtue of Section 16 of the Act. It is further noticed that Act has provided the appropriate Government the power to frame rules in this regard and as such, aforesaid provisions are clearly indicating that in exercise of its statutory function, legislature has enacted full proof Statute and has struck a Page 35 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 clear balance between private interest as well as public purpose. Section 10, as indicated above is providing a dual compensation that in case of any damage to the land, a provision is made for compensation and by virtue of sub- Section (4) of Section 10, an additional amount of compensation is provided for right of user, which is in addition to the compensation of damage in case it is taking place and as such prescription of 10% of market value as additional compensation can never be said to be arbitrary, unreasonable or irrational in any manner. When there is a clear legislative competence of State Government, which is not in dispute, as indicated above, the clear language of the Statute would lead to a situation where respondent authority has got power to exercise right of user over the land for public purpose of laying down pipelines either for water or gas, as the case may be, and this enactment is for a public good and purpose and when full mechanism is provided to redress any kind of grievance, as indicated above, we see no reason to see any arbitrariness or irrationality in said enactment.
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(vi) We may further observe that it is a settled position of law that whenever there is a conflict between public interest and private interest, public interest always to be given predominance and said set proposition of law since is in vogue, we may deem it proper to quote certain observations of the Hon'ble Apex Court in the decision in the case of Sayyed Ratanbhai Sayeed (Dead) Through Legal Representatives and others Vs. Shirdi Nagar Panchayat and Another (2016) 4 SCC 631:-
58. The emerging situation is one where private interest is pitted against public interest. The notion of public interest synonymises collective welfare of the people and public institutions and is generally informed with the dictates of public trust doctrine -
res communious i.e. by everyone in common. Perceptionally health, law and order, peace, security and a clean environment are some of the areas of public and collective good where private rights being in conflict therewith has to take a back seat. In the words of Cicero "the good of the people in the chief law".
59. The latin maxim "Salus Populi Est Suprema Lex" connotes that health, safety and welfare of the public is the supreme in law. Herbert Broom, in his celebrated publication, "A Selection of Legal Maxims" has elaborated the essence thereof as hereunder:
"This phrase is based on the implied agreement of every member of the society that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty and life shall, under certain circumstances, be placed in jeopardy or even sacrificed for the public good."
The demand of public interest, in the facts of the instant case, thus deserve precedence.
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(vii) In the case of Union of India and others vs. Unicorn Industries reported in (2019)10 SCC 575, observations made in paragraph 13 and 15 are quoted hereunder:-
13. The issue raised in these appeals is no more res integra. This Court in a catena of decisions has considered the issue with regard to inapplicability of the doctrine of promissory estoppel, when the larger public interest demands so. We will refer, in brief, to the earlier judgments of this Court.
15. It could thus be seen that, this Court has clearly held that the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to see all aspects including the objective to be achieved and the public good at large. It has been held that while considering the applicability of the doctrine, the courts have to do equity and the fundamental principle of equity must forever be present in the mind of the Court while considering the applicability of the doctrine. It has been held that the doctrine of promissory estoppel must yield when the equity so demands and when it can be shown having regard to the facts and circumstances of the case, that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation. After considering the earlier judgments on the issue, which have been heavily relied upon by the assesses, this Court has observed thus:
"21. The power to grant exemption from payment of duty, additional duty etc. under the Act, as already noticed, flows from the provisions of Section 25(1) of the Act. The power to exempt includes the power to modify or withdraw the same. The liability to pay customs duty or additional duty under the Act arises when the taxable event occurs. They are then subject to the payment of duty as prevalent on the date of the entry of the goods. An exemption notification issued under Section 25 of the Act had the effect of suspending the collection of customs duty. It does not make items which are subject to levy of customs duty etc. as items not leviable to such duty. It only suspends the levy and collection of customs duty, etc., wholly or partially and Page 38 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 subject to such conditions as may be laid down in the notification by the Government in "public interest". Such an exemption by its very nature is susceptible of being revoked or modified or subjected to other conditions. The supersession or revocation of an exemption notification in the "public interest" is an exercise of the statutory power of the State under the law itself as is obvious from the language of Section 25 of the Act. Under the General Clauses Act an authority which has the power to issue a notification has the undoubted power to rescind or modify the notification in a like manner."
(emphasis supplied)
23. In the light of the aforesaid discussion, when we examine the contentions raised in the context of afore-mentioned statutory provisions, we are of the clear opinion that provisions of the Act are not arbitrary or irrational nor impeaching any fundamental rights and same is not in conflict with Article 300A of the Constitution of India as well and therefore contention that no provision in the Act has been enacted to provide for acquisition of right after payment of compensation for acquisition of such right is not worthy of acceptance. This contention is not appearing to be in conflict with Article 300A of the Constitution of India and as such is not worthy of acceptance. Article 300A of the Constitution provides that no person can be deprived of his property except by authority of Page 39 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 law and as we have discussed that Act 2000 has been brought with legislative competence, which is not in dispute and Act has also provided a clear authority to lay down a pipeline for the public good, either water or gas as the case may be, with certain procedure which is prescribed stage-wise in the provision of the Act and when that be so, we are of the clear opinion that contention with regard to Article 300A of the Constitution of India raised by the petitioners to assail the impugned enactment is not possible to be accepted by us.
24. At this stage observations of the Hon'ble Apex Court in the case of Madras Bar Association v. Union of India & Anr., reported in 2021 SCC Online SC 463, requires to be noticed, where-under it has been clearly observed that where there is a challenge to the constitutional validity of a law enacted by the legislature, then Court must keep in view that there is always a presumption of constitutionality of an enactment and a clear transgression of constitutional principles must be shown to hold otherwise. The observations of Hon'ble Apex Court in this regard reads thus :-
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C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 "39. The controversy that arises for the consideration of this Court relates to the legislative response to the judgment of this Court in MBA-III. The power to strike down primary legislation enacted by the Union of India or the State legislatures is on limited grounds. The Courts can strike down legislation either on the basis that it falls foul of federal distribution of powers or that it contravenes fundamental rights or other constitutional rights/provisions of the Constitution of India. Where there is challenge to the constitutional validity of a law enacted by the legislature, the Court must keep in view that there is always a presumption of constitutionality of an enactment and a clear transgression of constitutional principles must be shown. In State of Madhya Pradesh v. Rakesh Kohli, this Court held that sans flagrant violation of the constitutional provisions, the law made by Parliament or a State legislature is not declared bad and legislative enactment can be struck down only on two grounds : (I) that the appropriate legislature does not have the competence to make the law, and (ii) that it takes away or abridges any of the fundamental rights enumerated in Part-III of the Constitution or any other constitutional provisions.
Subsequently, the Court has also recognised "manifest arbitrariness" as a ground under Article 14 on the basis of which a legislative enactment can be judicially reviewed."
25. Aforesaid discussion and elaborate analysis of the provisions would lead to a situation that challenge made in the petition is not sustainable in the eye of law and as noticed earlier, hardship to a citizen cannot be a ground to set at naught a Statute and further inadequacy of compensation also cannot be a ground to question the enactment and we say so since the Act itself has provided a statutory mechanism to redress the grievance of compensation, if any. When that be so, stand taken by learned counsel for petitioners is of no assistance and no Page 41 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 relief deserves to be granted.
26. In the light of the aforesaid discussion, it would also be profitable to support our view from a decision delivered by the Hon'ble Apex Court dated 5.10.2016 in case of Civil Appeal No.10019 of 2016 (Arising out of SLP (C) No.2725 of 2010) in case of Laljibhai Kadvabhai Savaliya and others Vs. State of Gujarat and others, wherein the Hon'ble Apex Court was dealing with petroleum and minerals pipelines (Acquisition of Right of User in Land) Act, 1962 and while dealing with such enactment, Hon'ble the Apex Court did not entertain the challenge since some of the provisions are akin to present dispute.
27. Here in the case on hand also, barring few restrictions on the owner or occupier of land, neither ownership in respect of land is taken away nor right to occupy or possess the land is taken over permanently and those rights continue to remain with owner and occupier and restrictions which are mentioned are only with a view to safeguard and secure pipelines which are laid down for public purpose and as such the principle with Page 42 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023 C/SCA/5142/2014 CAV JUDGMENT DATED: 12/01/2023 regard compensation in the manner it is provided are reasonable and cannot be found to be illusory in any form and as such taking clue from the said decision also, we are of the clear opinion that challenge made in the petitions deserves no consideration.
28. In the context of the aforesaid discussion, further we may peruse the decisions cited by learned counsel for the petitioners, particularly by learned advocate Mr. B.M. Mangukiya. Said decisions would not be made of any assistance to the petitioners for two reasons; viz. that facts are quite distinct and challenge made in these petitions made on a different contentions which are not applicable as discussed above and secondly that learned advocate except tendering judgments has not submitted as to which observations or contentions from these decisions are supporting the stand of petitioners. Except tendering judgments, no submissions are made as to in which manner said decisions are of any assistance to the petitioners. Hence, even on that count also, we are unable to apply the same.
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29. Law of precedent is quite clear that if facts are different, even one additional fact would make a world of difference in applying the principle as precedent. Hence, conjoint effect of aforesaid discussion and analysis of the provisions of the Act would lead to a clear conclusion that no case is made out by petitioners to extend any relief. Accordingly, both these petitions being merit-less, stand DISMISSED. Rule issued in Special Civil Application No.5142 of 2014 is discharged. Ad- interim relief, if any, stands vacated forthwith. Costs made easy.
Sd/-
(ARAVIND KUMAR,CJ) Sd/-
(ASHUTOSH J. SHASTRI, J) OMKAR Page 44 of 44 Downloaded on : Tue Jan 17 20:36:40 IST 2023