Gujarat High Court
Consumer Protection And Analytic ... vs State Of Gujarat & 4....Opponent(S) on 15 February, 2017
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/WPPIL/246/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 246 of 2016
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CONSUMER PROTECTION AND ANALYTIC COMMITTEE....Applicant(s)
Versus
STATE OF GUJARAT & 4....Opponent(s)
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Appearance:
MR VISHWAS K SHAH, ADVOCATE for the Applicant(s) No. 1
MR D M DEVNANI, AGP for the Opponent(s) No. 5
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 15/02/2017
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) [1] This Writ Petition is filed by way of Public Interest Litigation with the prayers, which read as under : "12(A) Be pleased to direct respondent to pay compensation as per section 10 of the Gujarat Water and Gas Pipelines (Acquisition of Right of User in Land) Act, 2000 individually along with interest to the affected farmers and land owners and submit the report to Hon'ble Court. (B) Be pleased to direct state government to submit report of payment of compensation to all the farmers who are not paid till date before this Hon'ble Court.
(C) Be further pleased to direct respondent Government to constitute a committee to measure amount of loss and damaged caused to the farmers and land owners because of fixing pipelines and pay additional amount of compensation.
(D) Pending hearing and admission of this petition, be pleased to direct respondent no.1 to take suitable steps against respondent no.2 and 3 in accordance with law.
(E) Pending admission hearing and final disposal of this
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C/WPPIL/246/2016 ORDER
petition be pleased to direct respondents to pay compensation as per section 10 of the Gujarat Water and Gas Pipelines (Acquisition of Right of User in Land) Act, 2000 individually along with interest to the affected farmers and land owners and submit the report to Hon'ble Court.
(F) Costs of this petition be awarded.
(G) Such further and other relief, order or direction which may be just, fit, proper and equitable in the facts and circumstances of the petition."
[2] In the petition, it is stated that the petitioner is an organization functioning for the welfare of the consumers and is registered under the Societies Act, 1962 and Trust Act, 2001. The petitioner seeks direction by way of mandamus to the respondents to pay compensation to the persons who suffered damages, on account of acquisition of right of user in land under the provisions of the Gujarat Water and Gas Pipelines (Acquisition of Right to User in Land) Act, 2000 (hereinafter referred to as "the Act").
[3] It is the case of the petitioner that though right of user is acquired from the lands of the farmers of the Villages Tankarna, Jabalpur, Hirapar etc., they are not paid compensation as per provisions of the Act. It is also case of the petitioner that in certain lands there were standing crops, trees etc., inspite of same, the respondents have not awarded any damage suffered by the land owners on account of damage to the standing crops, trees etc. Page 2 of 7 HC-NIC Page 2 of 7 Created On Sun Aug 13 15:56:10 IST 2017 C/WPPIL/246/2016 ORDER [4] Executive Engineer, Project Construction Division - 4, Rajkot has filed reply on behalf of the respondents. In the affidavit in reply while denying various allegations made in the petition, it is stated that the individual claimants i.e. farmers who are affected under the acquisition / scheme which is also known as Sauni scheme are 393 in number and these farmers belong to 10 villages for whom the petitioner has sought relief in the present petition. However, it is stated that out of 393 farmers, compensation is received by 123 farmers and rest have refused to accept the cheques which are offered by the respondents. Along with the reply affidavit, copies of cheques and Rojkam carried out by the officer indicating that the cheques are not accepted by the farmers is produced on record. It is also stated that if compensation awarded is not acceptable to either of the parties, there is mechanism under section 10(5) of the Act and aggrieved party can approach Collector claiming compensation on the ground that same is less or insufficient. At the same time, the respondents are ready and willing to make payment to all the claimants who have not accepted the amount of compensation.
[5] For the purpose of disposal of this Writ Petition, we deem it appropriate to refer to provisions under Section 10 of the Act, which read as under : "10(1) Where in exercise of the powers conferred by section 5, 7 and 8 by an 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 being, or has been laid, the State Government or, as the case may be, Page 3 of 7 HC-NIC Page 3 of 7 Created On Sun Aug 13 15:56:10 IST 2017 C/WPPIL/246/2016 ORDER the Corporation shall be liable to pay compensation to such person for such damage, loss or injury, the amount of which shall be determined by the competent authority in the first instance. (2) If the amount of compensation, determined by the competent authority under subsection (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 subsection (1) or as the case may be, subsection (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 publication of the notification under subsection (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 subsection (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 percent of the market value of that land on the date of the publication of the Page 4 of 7 HC-NIC Page 4 of 7 Created On Sun Aug 13 15:56:10 IST 2017 C/WPPIL/246/2016 ORDER notification under subsection (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.
(6) The decision of the Collector under subsection (2) or (5) shall be final."
[5.1] Under section 10(2) of the Act, if the amount of compensation determined by the competent authority 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 the Collector. Under Section 10(3) of the Act, Competent authority or the Collector while determining the compensation, shall have due regard to the damage or loss sustained by any person interested in the land by reason of removal of trees or standing crops.
[6] From the material placed on record and looking at the affidavit in reply filed by the Executive Engineer, Project Construction Division - 4, Rajkot, it is clear that as per notification notified by the authorities under the provisions of the Act, altogether 393 persons were affected and competent authority has already determined compensation payable to such affected persons. It is also clear that compensation is Page 5 of 7 HC-NIC Page 5 of 7 Created On Sun Aug 13 15:56:10 IST 2017 C/WPPIL/246/2016 ORDER already paid to 123 farmers out of 393 land owners who were affected by such acquisition. It is specific say of the respondents in the reply affidavit that as affected farmers have not accepted the cheques, the respondents have not paid compensation determined under the provisions of the Act. It is submitted by learned counsel for the petitioner that though many of the land owners have suffered damage on account of damage to the standing crops and trees etc., no compensation was determined for such damage and as such many of the land owners have not accepted compensation. [7] In view of statement made by learned Assistant Government Pleader for the respondents that they are prepared to pay compensation to the affected persons whose claim compensation is already determined, we deem it to dispose of this Writ Petition by directing the respondents to pay compensation payable to affected farmers, who have not received cheques earlier, within six weeks from the date of receipt of this order. After receipt of such compensation determined by the respondents, if the affected farmers who dispute quantum of compensation awarded to them, we permit them to move Collector concerned of the area as contemplated under Section 10(2) of the Act. If such applications are filed by the affected farmers under Section 10(2) of the Act, we are sure that such competent authority will consider the claim of such affected farmers and take appropriate decision as expeditiously as possible.
Page 6 of 7 HC-NIC Page 6 of 7 Created On Sun Aug 13 15:56:10 IST 2017 C/WPPIL/246/2016 ORDER [8] With above directions, the Writ Petition stands disposed of. No order as to costs. (R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) satish Page 7 of 7 HC-NIC Page 7 of 7 Created On Sun Aug 13 15:56:10 IST 2017