Gujarat High Court
Pankaj Motibhai Patel vs Union Of India on 28 October, 2021
Author: Aravind Kumar
Bench: Aravind Kumar
C/SCA/11587/2021 ORDER DATED: 28/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11587 of 2021
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PANKAJ MOTIBHAI PATEL
Versus
UNION OF INDIA
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Appearance:
HL PATEL ADVOCATES(2034) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,33,3
4,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,6,7,8,9
for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 28/10/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. Petitioners have sought for the following reliefs:
"27.(A) This Hon'ble Court may be pleased to issue an appropriate writ, order or direction quashing and setting aside the decision of laying pipelines from the parcels of the lands of the petitioners which is an urban and the order dated 05.02.2021 passed by the respondent No.2 and also entire proceedings pursuant to the notices dated 30.10.2020 and 31.10.2020 issued to the petitioners and the respondent authorities be permanently restrained from laying any sort of LPG pipelines for Kandla Gorakhpur LPG Pipeline Page 1 of 8 Downloaded on : Mon Jan 17 04:53:37 IST 2022 C/SCA/11587/2021 ORDER DATED: 28/10/2021 Project from the lands of the petitioners;
(B)Pending admission, hearing and final dipsosal of this petition, this Hon'ble Court may be pleased to stay Kandla Gorakhpur LPG Pipeline Project only with respect to lands of the petitioners;
(C)Pending admission, hearing and final disposal of this Petition, this Hon'ble Court may be pleased to stay the order dated 05.02.2021 passed by the respondent No.2 and also entire proceedings pursuant to the notices dated 30.10.2020 and 31.10.2020 issued to the petitioners and the respondent authorities be restrained from laying any sort of LPG pipelines fro Kandla Gorakhpur LPG Pipeline Project from the lands of the petitioners."
2. The sum and substance of the grievance of the petitioners are that the Liquid Petroleum Gas (for short "LPG") pipeline is sought to be laid pursuant to Kandla Gorakhpur LPG Pipeline Project and said pipeline is being proposed to be laid on the land belonging to the petitioners and it would be diametrically opposite to the schemes declared by the State under the Town and Country Planning Act which declares the entire area as residential area and in the event of such pipeline being laid, it would be in a residential area which would be harmful and disastrous to the residents who may construct the building in the said area or over the lands owned by them and as such they are seeking for quashing of the decision dated 5.2.2021.
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3. We have heard Mr. Vijay Patel, learned counsel for the petitioners and we do not propose to issue notice to the respondents and petition is dismissed at the threshold for the reasons indicated herein below.
3.1. The petitioners were served with notices dated 30.10.2020 and 31.10.2020 by the respondents disclosing their intention to lay LPG pipeline pursuant to the Kandla Gorakhpur LPG Project envisaged and it was indicated in the notices that owners of the land would be granted reasonable compensation and it was also notified that they will not be able to put up any construction for digging well, digging pond or planting trees on the said land and on their failure to comply with the same it would result into initiation of prosecution under Section 15 of the Petroleum and Minerals, Pipelines (Acquisition of Right of User in Land) Act, 1962 (for short "Petroleum Act"). Petitioners were also given opportunity to make use of the information available in the office of Respondent No.5 if they are so desirous and petitioners were called upon to file their objections within a period of 21 days. Pursuant to same, petitioners submitted their objections on 12.11.2020 (Annexure 'B') contenting inter alia that land in question falls within the limits of Ahmedabad Urban Development Authority and Town Planning Scheme No.402/B where under the area has been zoned or zeroed down as area for Residence Affordable Housing (RAH) Zone and as such laying of pipeline through the Town Planning passing through Scheme Nos. 401/A, 401/B, 402/A, 402/B, 403/A, 403/B wherein the lands of the petitioners are situated in different villages namely, Villages viz. Visalpur, Bakrol, Navapara and Sanathal would not be feasible and as such they sought for the Page 3 of 8 Downloaded on : Mon Jan 17 04:53:37 IST 2022 C/SCA/11587/2021 ORDER DATED: 28/10/2021 proposed laying of the pipeline being shelved. A personal hearing was extended to the petitioners and accordingly they appeared and reiterated the contentions raised in their objection before the hearing authority. The said objection came to be considered and by order dated 5.2.2021 (Annexure 'G') objections raised by the petitioners was rejected on two grounds namely (1) the land under the proposed acquisition is not an agricultural land; and (2) there is no construction or permanent structure existing on the land proposed to be acquired. Hence, this petition.
4. It is the contention of Mr. Vijay Patel, learned counsel appearing for the petitioners that in Survey No.971 of Village Visalpur where the proposed Gas Line would be laid down, there are 11 houses since the year 1975 and it would be a violation of the provisions of the scheme. It is also contended that on account of the areas adjacent to the proposed area where the pipeline is sought to be laid has been declared as residential zone under the Town Planning Scheme, which permits putting up of multi-storied buildings and if such pipeline is laid and if there were to be any accident like blast or fire it would affect not only the buildings but it would also be dangerous to the life of persons living in the said residential buildings and as such in an area which is earmarked for residential zone, no pipeline can be permitted to be laid.
5. Hence, learned counsel appearing for parties submits that proposed laying of the pipeline has to be necessarily shelved by the respondents. He would elaborate his submissions by contenting that for putting up for multi-storied buildings, Page 4 of 8 Downloaded on : Mon Jan 17 04:53:37 IST 2022 C/SCA/11587/2021 ORDER DATED: 28/10/2021 anchoring has to be done which results in iron rods being penetrate to the ground or earth which may go deep and possibility of affecting the pipelines not being ruled out would escalate the safety issue and same has not been taken note off by the respondent authorities while rejecting the claim of the petitioners under the impugned order dated 5.2.2021 and as such he prays for the prayer sought for in the petition being granted.
6. Learned counsel for the petitioners would also draw the attention of this Court to an accident, which took place during the year December, 2020 which resulted in collapse of the buildings as a result of their being a blast in the gas pipeline and as such he has prayed for the prayer sought for in the petition be granted.
7. Having heard the learned counsel appearing for the petitioners and on perusal of the case papers, we are of the considered opinion that it would be apt and appropriate to extract Section 7 of the Petroleum Act which has a bearing on the contentions raised.
"Section 7. Central Government or State Government or Corporation to lay pipelines.-
(1) Where the right of user in any land has vested in the Central Government or in any State Government or Corporation under Section.6-
(I) it shall be lawful for any person authorised by the Central Government or such Page 5 of 8 Downloaded on : Mon Jan 17 04:53:37 IST 2022 C/SCA/11587/2021 ORDER DATED: 28/10/2021 State Government or Corporation, as the case may be, and his servant and workmen to enter upon the land and lay pipelines or to do any other act necessary for laying of pipelines:
PROVIDED THAT no pipeline shall be laid under-
(a) any land which, immediately before the date of the notification under sub-section (1) of Section 3, was used for residential purposes;
(b) any land on which there stands any permanent structure which was in existence immediately before the said date;
(c) any land which is appurtenant to a
dwelling-house; or
(d) any land at a depth which is less than
one metre from the surface; [***] for laying pipelines for the transport of petroleum, it shall be lawful for any person authorised by the Central Government or such State Government or Corporation to use such land for laying pipelines for transporting any mineral and where the right of user in any land has so vested for laying pipelines for transporting any mineral, it shall be lawful for such person to use such land for laying pipelines for transporting petroleum or any other mineral; and
(ii) such land shall be used only for laying the pipelines and for maintaining, examining, repairing, altering or removing any such Page 6 of 8 Downloaded on : Mon Jan 17 04:53:37 IST 2022 C/SCA/11587/2021 ORDER DATED: 28/10/2021 pipelines or for doing any other act necessary for any of the aforesaid purposes or for the utilisation of such pipelines.
(2) If any dispute arises with regard to any matter referred to in para, (b) or para, (c) of the proviso to Cl.(i) of sub-section (1), the dispute shall be referred to the competent authority whose decision thereon shall be final."
8. A plain reading of the above provision would clearly indicate that no pipeline can be laid in a land which immediately before the date of notification under sub-section (1) of Section 3 was used for residential purposes; and in a land on which there stands any permanent structure which was in existence immediately before the said date; and any land which is appurtenant to a dwelling - house ; or any land at a depth which is less than one metre from the surface.
9. According to parties clause (c) and (d) of proviso to sub- clause (1) of sub-section (1) of Section 7 is attracted to the facts on hand. Infact it is the main thrust of the arguments of learned counsel appearing for the petitioners that Clause (a) and (b) of proviso is attracted to the facts of the case. This contention has been taken note of by the authority under the impugned order to arrive at a conclusion that land in question is an agricultural land and it is not used for residential purposes. The expression used was "use for residential purpose" is a past present tense. Thus, if on the date of issuance of notification, the land has been already used for Page 7 of 8 Downloaded on : Mon Jan 17 04:53:37 IST 2022 C/SCA/11587/2021 ORDER DATED: 28/10/2021 residential purposes, such lands stands excluded and not the land which is proposed to be used for residential purposes. That apart, the grounds on which petitioners seeks for quashing the impugned notification does not merit acceptance for one more reason. Clause (b) of the proviso to sub-section (1) of Section 7 it indicates that if there are any permanent structure which "was in existence immediately before the said date", would stand excluded such lands being used for laying Gas pipeline. In other words, if there were any permanent structure, existing as on the date of issuance of notice then the said clause would get attracted and in the instant case on facts, the respondent authorities under the impugned order has clearly noticed that there is no permanent structure over which the respondents are proposing to lay the LPG pipeline. The said finding recorded under the impugned order is in consonance of Section 7 of the Petroleum Act and not contrary to the same. Hence, question of interfering with the laying of the pipelines would not only be against the public interest but would be against public interest. Even if any private interest is there, it has to necessarily yield to public interest. As such petition deserves to be rejected and accordingly, it stands rejected.
(ARAVIND KUMAR,CJ) (MAUNA M. BHATT,J) NAIR SMITA V. Page 8 of 8 Downloaded on : Mon Jan 17 04:53:37 IST 2022