Urvarshidevi Jaidipsinh Maharaul vs Union Of India Thro Secretary & 4 on 10 March, 2014

[Cites 72, Cited by 1]

Gujarat High Court

Urvarshidevi Jaidipsinh Maharaul vs Union Of India Thro Secretary & 4 on 10 March, 2014

Bench: Anant S. Dave

       C/SCA/459/2013                                     CAV JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              SPECIAL CIVIL APPLICATION NO. 459 of 2013
                                  With
               SPECIAL CIVIL APPLICATION NO. 929 of 2013
                                  With
              SPECIAL CIVIL APPLICATION NO. 2058 of 2013
                                  With
              SPECIAL CIVIL APPLICATION NO. 7766 of 2013
                                   TO
              SPECIAL CIVIL APPLICATION NO. 7875 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE ANANT S. DAVE

================================================================

1   Whether Reporters of Local Papers may be allowed to see
    the judgment ?

2   To be referred to the Reporter or not ?

3   Whether their Lordships wish to see the fair copy of the
    judgment ?

4   Whether this case involves a substantial question of law as
    to the interpretation of the Constitution of India, 1950 or any
    order made thereunder ?

5   Whether it is to be circulated to the civil judge ?

================================================================
         URVARSHIDEVI JAIDIPSINH MAHARAUL....Petitioner(s)
                             Versus
        UNION OF INDIA THRO SECRETARY & 4....Respondent(s)
================================================================
Appearance:
MR JA ADESHRA, ADVOCATE for the Petitioner [SCA No.459 of 2013]
MR MTM HAKIM , ADVOCATE for the Petitioners [SCA Nos. 929 of 2013, 2058
of 2013 and 7766 to 7875 of 2013]



                                Page 1 of 65
         C/SCA/459/2013                                             CAV JUDGMENT



MR RAKESH R PATEL AGP for the Respondent(s) No. 2
MR BIJU A NAIR, ADVOCATE for the Respondent(s) No. 3
MR KI SHAH for VK SHAH, ADVOCATE for the Respondent(s) No. 4 - 5
MS MITA S PANCHAL, ADVOCATE for the Respondent(s) No. 1
MR SHAKEEL QURESHI, ADVOCATE for Respondent - Union of India
================================================================

           CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE

                                  Date : 10/03/2014


                                  CAV JUDGMENT

Draft amendment proposed in Special Civil Application Nos.7766 to 7875 of 2013 is granted. Amendment be carried out forthwith.

2 Rule. Learned counsels for the respondents waive service of Rule on behalf of respective respondents.

All these petitions are taken up for final disposal with consent of learned counsel for the respective parties.

3 That Special Civil Application No.459 of 2013 is taken up as a lead matter, as facts stated therein form basis of the contentions canvassed by the learned counsels appearing for the respective parties in other matters also.

4 The petitioners have prayed for writ, order or direction against the respondent GAIL in all these petitions to forthwith make payment of compensation to the petitioners as per impugned awards passed by the Competent Authority & Dy. Collector GAIL [India] Ltd. [Gujarat], Vadodara and to declare the action as illegal on the part of Page 2 of 65 C/SCA/459/2013 CAV JUDGMENT the authorities of the GAIL in not following Sections 10 & 11(1) of the Petroleum And Minerals Pipeline [Acquisition of Right of User in Land] Act, 1962 [in short, `the Act, 1962'] read with Rules 4, 5 & 6 of Petroleum And Minerals [Acquisition of Right of User in Land] Rules [in short, `Rules, 1963'].

5 The details of award and intimation thereof, in all these petitions, are as under:

         Sr.No. SCA No.                Date of Award       Date of Intimation
         1         459 of 2013         28.08.2012          15.12.2012 [AnnexureF]
                                                           24.12.2012 [AnnexureH]
         2         929 of 2013         18.09.2012          05.12.2012 [AnnexureA]
                                                           24.12.2012 [AnnexureA]
         3         2058 of 2013        28.09.2012          05.12.2012 [AnnexureA]
                                                           24.12.2012 [AnnexureA]
         4         7760 to 7875 of  28.09.2012             05.12.2013 [AnnexureA]
                   2013 [one page                          24.12.2012 [AnnexureA]
                   petitions]

The operative portion of the award dated 28.08.2012 impugned in Special Civil Application No.459 of 2013 reads as under:

"The acquiring body is directed to deposit the amount of Rs.1,20,16,473/ in words [Rupees One Crore twenty lacs sixteen thousand four hundred seventy three only], as shown in the Statement 1 and Appendix 7 D, in my current Account No.31232250887 with SBI Alkapuri branch Vadodara according to Section 11(1) of the P & MP Act.

Any Party aggrieved by this order, shall have an option to apply to District Judge within the limits of whose jurisdiction the land is situated as per provision of the P & MP Act.

Both parties are to be informed accordingly.

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I have signed & affixed my seal on every page, and declared this award in open court on the day of 28th August, 2012".

In another case, respondent GAIL is directed to pay interest under Section 11(2)of the Act, 1962 in case the amount awarded is not deposited in time as prescribed under Rule6 of the Rules, 1963. 6 Learned advocates for the petitioners heavily relied on the word "compensation", as provided under Section 10(1) of Act, 1962 and Rule 4(3) of the Rules, 1963 and contend that as and when compensation under Section 10(1) is determined by the competent authority towards loss or damages or injury sustained by any person interested in land in question under which the pipeline is proposed to be or is being or has been laid, the Central Government, the State Government or the Corporation, as the case may be, shall be liable to pay compensation to such persons and the moment such compensation is determined, the competent authority shall inform the claimant and within time limit prescribed viz. within 21 days of receipt of intimation as above under Rule 6, the Central Government, the State Government or the Corporation in the facts of this case, the respondent - GAIL shall deposit the compensation amount in such treasury as provided under the Rules, 1963. According to learned advocates for the petitioners, admittedly, intimation is given by the competent authority about determination of compensation, as per details provided in para 5 of this judgment, but till date no amount of compensation is deposited by the respondent - GAIL and instated it has preferred to file application before the concerned District Judge challenging the determination of compensation which is akin to the awards under the Land Acquisition Act 1894 and though the word application is referred under Section 10(2) of the Act, 1962, it is nothing but an appeal and when appeal is filed against an award of compensation, the appellant is duty bound to Page 4 of 65 C/SCA/459/2013 CAV JUDGMENT deposit the amount so that a person interested in the land is not deprived of his legitimate right to receive due compensation in time.

7 In the backdrop of statutory Scheme, with regard to acquisition of right of user in land, Shri K.I.Shah, learned advocate for the respondent - GAIL, has raised the following main points on law as well as on facts:

[a] That in all these petitions stage of deposit does not arise in view of the fact that proceedings are undertaken by respondent GAIL as per Section 10(2) of the Act, 1962 since the amount of compensation determined by the competent authority under Section 10(1) is not acceptable to GAIL, and therefore, application is preferred before the District Judge within the limits of whose jurisdiction the subject land is situated and in case of delay, application is also filed explaining such delay and pending for decision accordingly. Thus, the determination of compensation has not attained finality.

[b] That phraseology of Section 10(1) uses the word "in the first instance" and 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 District Judge within the limits of whose jurisdiction the land or any part thereof is situated, be determined by that District Judge and subsection (3) of Section 10 provide for factors / criteria to be considered by the competent authority or the District Judge while exercising power for determining compensation under subsection (1) or subsection Page 5 of 65 C/SCA/459/2013 CAV JUDGMENT (2), as the case may be, and shall have due regard to the damages or loss sustained by any person interested in the land by reason of [i], [ii] and [iii] of subsection (3) of Section 10. A different mechanism is also provided under subsection (4) of Section 10 when right of user of any land vested in the Central Government, State Government or the Corporation. Section 10(6) provides that the decision of the District Judge under subsection (2) or subsection (5) shall be final. Therefore, at this stage depositing the amount of compensation determined by the competent authority does not arise in any of the cases.

[c] Section 11 is about deposit and payment of compensation and when the proceedings are pending under Section 10(2) of the Act, 1962, no order could be passed to deposit the amount as prayed by the petitioners.

[d] In the context of the above provisions of the Act, 1962, Rule 4(3) of the Rules, 1963 refers to Section 10(2) and Section 10(5) and hence it would come into effect only after compensation is determined under Section 10(2) and/or 10(5) as the case may be and intimation that is to be given to the parties by the competent authority about fixation of the compensation also refer to under Section 10(2) or 10(5) of the Act, 1962. Therefore, prior to determination and decision under Section 10(2) or 10(5) is taken, no deposit and payment can be made to the claimant, if the above provisions of Sections 10, 11 of the Act, 1962 read with Rule 4(3) of the Rules, 1963 are considered.

[e] Reliance is placed on Rule 4A, 4(3), 5 and 6 of the Rules, 1963. Rule 4A(1) and (2) are about compensation to be Page 6 of 65 C/SCA/459/2013 CAV JUDGMENT determined by exercising powers conferred upon the competent authority under the Act and Rules and it is related to Section 10(1) as it provides for competent authority to follow the procedure. Likewise, Rule 5 is about application to be made to the District Judge for determination of compensation by any aggrieved party by the determination of the amount of compensation by competent authority within a prescribed time limit of 90 days of the receipt of the intimation from the competent authority under Rule 4(3).

Therefore, the contention of the learned counsel that as soon as compensation is determined under Section 10(1) by the competent authority information is to be submitted to the parties under Rule 4(3) and body acquiring the land for user purpose is to deposit the amount of compensation is not the intention of the Legislature and Scheme of the Act containing different stages, consideration of claim of the claimant, amount of compensation to be determined by the competent authority under Section 10(1) and finality of the proceedings in case of a dispute and disagreement to the compensation so determined by either of the parties is reached only after the concerned District Judge determines the compensation and such determination/decision becomes final as provided under Section 10(6) of the Act, 1962.

7.1 Learned counsel for the GAIL placed reliance on the following decision in support of his case:

[i] In the case of Trilok Sudhirbhai Pandya v. Union of India & Ors.

reported in AIR 2012 SC 1668 [para 8].

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[ii] In the case of Jaswant Sugar Mills Ltd. Meerut vs. Lakshmi Chand & Ors. Reported in AIR 1963 SC 677 [paras 10, 11 & 13].

[iii] In the case of Special Military Estates Officer Vs. Munivenkatramiah reported in AIR 1990 SCC 499 [para 5].

[iv] In the case of Hindusthan Petroleum Corporation Ltd. v. Yashwant Gajanan Joshi reported in AIR 1991 SC 933.

[v] In the case of Ashok Leyland Ltd. Vs. State of T.N. & Anr.

Reported in AIR 2004 SC 2836(1) [paras 92, 93 & 94] [vi] In the case of Babaji Kondaji Garad vs. Nasik Merchants Co operative Bank Ltd., Nasik & Ors. Reported in (1984) 2 SCC 50 [para 16].

8 Heard learned counsels appearing for the parties.

8.1 Before adverting to the rival contentions raised by the learned counsels for the parties, for the purpose of deciding the issue involved in these petitions, important provisions of Act, 1962 and Rules, 1963, are reproduced hereunder:

The Petroleum Mineral Pipelines [Acquisition of Right of User in Land] Act, 1962 In this Act, unless the context otherwise requires:

Section 2[a] "competent authority" means any person or authority authorized by the Central Government by notification in the Official Gazette, to perform the functions of the competent Page 8 of 65 C/SCA/459/2013 CAV JUDGMENT authority under this Act and different persons or authorities may be authorized to perform all or any of the functions of the competent authority under this Act in the same area or different areas specified in the notification.

Section 2[b] "corporation" means any body corporate established under any Central Provincial or State Act, and includes [i] a company formed and registered under the Companies Act, 1956; and [ii] a company formed and registered under any law relating to companies formerly in force in any part of India;

[iii] "minerals" have the meaning assigned to them in the Mines Act, 1952, and include mineral oils and stowing sand but do not include petroleum;

[c] "petroleum" has the same meaning as in the Petroleum Act, 1934 and includes natural gas and refinery gas;

[d] "prescribed" means prescribed by rules made under this Act.

Section 3. Publication of Notifications for Acquisition.

[1] Whenever it appears to the Central Government that is necessary in the public interest that for the transport of petroleum or any mineral from one locality to another locality pipelines may be laid by that Government or by any State Government or a corporation and that for the purpose of laying such pipelines it is necessary to acquire the 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.

[2] Every notification under sub section [1] shall give a brief description of the land.

[3] The competent authority shall cause the substance of the notification to be published at such places and in such manner as may be prescribed.

Page 9 of 65 C/SCA/459/2013 CAV JUDGMENT

Section 4. Power to enter, survey, etc. Section 5. Hearing of objections Section 6. Declaration of Acquisition of right of user [1] Where no objections under subsection [1] of section 5 have been made to the competent authority within the period specified therein or where the competent authority has disallowed the objections under subsection [2] of that section, that authority shall, as soon as may be, either make a report in respect of the land described in the notification under subsection [1] of section 3, or make different reports in respect of different parcels of such land, to the Central Government containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of the Government and upon receipt of such receipt the Central Government shall, if satisfied that such land is required for laying any pipeline for the transport of petroleum or any mineral, declare by notification in the official Gazette, that the right of user in the land for laying the pipelines should be acquired and different declarations may be made from time to time in respect of different parcels of the land described in the notification issued under subsection [1] of section 3, irrespective of whether one report or different reports have been made by the competent authority under this section.

[2] On the publication of the declaration under subsection [1], the right of user in the land specified therein shall vest absolutely in the Central Government free from all encumbrances.

[3] Where in respect of any land, a notification has been issued under subsection [1] of section 3 no declaration in respect of any parcel of land covered by that notification has been published under this section within a period of one year from the date of notification, that notification shall case to have effect on the expiration of that period.

[3A] No declaration in respect of any land covered by a notification issued under subsection [1] of section 3, published after the commencement of the Petroleum Pipelines [Acquisition of Right of User in Land] Amendment Act, 1977, shall be made after the expiry of three years from the date of such publication.

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[4] Notwithstanding anything contained in subsection [2], the Central Government may, on such terms and conditions as it may think fit to impose, direct by order in writing, that the right of user in the land for laying pipelines shall, instead of vesting in the Central Government vest, either on the date of publication of the declaration or, on such other date as may be specified in the direction, in the State Government or the corporation proposing to lay the pipelines and thereupon the right of such user in the land shall, subject to the terms and conditions so imposed, vest in that Stat Government or corporation, as the case may be, free from all encumbrances.

Section 7. Central Government or State Government or Corporation to lay pipelines.

Section 8. Power to enter land for inspection, etc. Section 9. Restrictions regarding the use of land.

Section 10. Compensation.

[1] Where in the exercise of the power conferred by section 4, section 7 or section 8 by 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 Central Government , the State Government or the corporation, as the case may be, 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 District Judge within the limits of whose jurisdiction the land or any part thereof is situated, be determined by that District Judge.

[3] The competent authority or the District Judge while determining the compensation under subsection (1) or sub section (2), as the case may be, shall have due regard to Page 11 of 65 C/SCA/459/2013 CAV JUDGMENT the damage or loss sustained by any person interested in the land by reason of [i] the removal of trees of standing crops, if any, on the land while exercising the power under section 4, section 7 section 8;

[ii] the temporary severance of the land under which the pipeline has been laid from other lands belong, 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 person 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 notification under subsection (1) of section 3.

[4] Where the right of user of any land has vested in the Central Government, the State Government or the corporation, the Central Government the State Government or the corporation, as the case may be, 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 a ten per cent of the market value of that land on the date of the 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 accepted to either of the parties it shall, on application by either of the parties to the District Judge referred to in subsection (2), be determined by that District Judge.

[6] The decision of the District Judge under subsection (2) or subsection (5) shall be final.

Section 11 Page 12 of 65 C/SCA/459/2013 CAV JUDGMENT Deposit and payment of compensation [1] The amount of compensation determined under section 10 shall be deposited by the Central Government, the State Government or the corporation, as the case may be, with 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 subsection (1), the Central Government the State Government or the corporation as the case may be shall be liable to pay interest thereon at the rate of six per cent per annum from the date on which the compensation had to be deposited till the date of the actual deposit.

[3] As soon as may be after the compensation has been deposited under subsection (1) the competent authority shall, on behalf of the Central Government the State Government or the corporation, as the case may be, pay the compensation to the persons entitled thereto.

[4] Where several persons claim to be interested in the amount of compensation deposited under subsection (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 person to whom the same or any part thereon is payable, the competent authority shall refer the dispute to the decision of the District Judge with the limits of whose jurisdiction the land or any part thereof is situated and the decision of the District Judge thereon shall be final.

[emphasis supplied] 8.2 The Petroleum and Minerals Pipelines [Acquisition of Right of User in Land] Rules, 1963 [In exercise of the powers conferred by section 17 of the Petroleum and Minerals Pipelines [Acquisition of Right of User in Page 13 of 65 C/SCA/459/2013 CAV JUDGMENT Land] Act, 1962 [50 of 1962], the Central Government hereby makes the following rules] Rule 1.

Short Title : These rules may be called the Petroleum and Minerals Pipelines [Acquisition of Right of User in Land] Rules, 1963.

Rule 2. Definitions Rule 3. Publication of Notifications under section 3:

Rule 4. Filling of claims for compensation:

[1] Any person interested in any land may file before the Competent Authority a claim for compensation [a] for damages by that person by reason of the exercise of the powers conferred by section 4 [i] in case the right of user in the land has not been acquired, within sixty days from the date on which the notification under subsection [1] of the section 3 ceased to have effect, or [ii] in case the right of user in the land has been acquired, within sixty days from the date of publication of the declaration under subsection [1] of Section 6;

[b] for damages sustained by that person by reason of the exercise of the powers conferred by section 7, within sixty days from the date of termination of the operations referred to in clause [I] of subsection [1] of the said section;

[c] for damages sustained by that person by reason of the exercise of the powers conferred by section 8, within sixty days from the date of termination of the operation referred to in that section;

[d] under subsection [4] of section 10, within sixty days from the date of publication of the declaration under sub section [1] of section 6;

Page 14 of 65 C/SCA/459/2013 CAV JUDGMENT

Provided that the competent authority may admit any claim within thirty days after the expiry of the period specified in this subrule, if he is satisfied that the applicant had sufficient cause for not making the application within such specified period.

4[2] The claim for compensation shall be made in such Form specified in the Schedule annexed to these rules.

4[3] The competent Authority shall on receipt of the claim for compensation make such inquiry as provided in rule 4A and fix the compensation and thereafter inform the parties referred to in subsection [2] and [5] of section 10 of the amount of compensation so fixed.

Rule 4A.

While conducting enquiry and for granting compensation under subrule [3] of rule 4 the Competent Authority shall follow the following procedure, namely: [1] for compensation of land due to the deprivation in right of enjoyment to any person interested in the land the Competent Authority may inquire the rate of land prevailing in the locality on the date of publication of the notification under subsection [12] of section 3 of the Act from the following sources, namely: [a] local registration authority such as the Registrar, Sub Registrar or any Officer of authority for the time being authorized to register the documents under the Indian Registration Act, 1908 [16 of 1908];

[b] land acquisition authority, under the land Acquisition Act, 1894 [1 of 1894] if any land has been acquired during such period in the locality; and [c] Officer or authority of the Government who fixes the reserve price of the land for any purpose under any law for the time being in force;

Provided that any rate taken for consideration shall not be less than the reserve price fixed by such officer or authority.

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[2] For compensation for other damages or loss while exercising the powers conferred under the Act or rules made thereunder the competent authority shall.

[a] obtain the Panchnama prepared by a team appointed by him duly signed preferably by the person interested in the land or by two independent and respectable inhabitants of the locality and the representative of work execution agency. The said Panchnama shall contain the details of damages or losses caused while exercising the powers conferred by section 4, 7 or 8 of the Act;

[b] enquire the yield of crops, trees, and fruits, etc, from the Government agency such as horticulture or agriculture department of the Central Government or State Government or as per the statistics of the Central Government and/or State Government or from any local Government body;

[c] make requisition of the market value of the crops, timber, wood, fruit, etc., from the agriculture department or any other concerned Government agency or semi Government agency such as the Agricultural Marketing Board, Krishi Upaj Mandi, or any other agency authorized under any law to assess the market value of crops, wood, fruits, etc.;

[d] get the other losses, if any, assessed from the Government agency or from any qualified engineer or through any valuer registered under section 34AB of the Wealth Tax Act, 1957 [27 of 1957]; and [e] in case of Presumptive Crop Compensation, i.e. compensation for the profits which the cultivator would have received for crop normally cultivated on the land during the season or period, to which the compensation relates, but for being prevented from cultivating the land, the competent authority may deduct twenty per cent of net value as saving in seeds, fertilizers, labour, etc. Rule 5.

Application to the District Judge for determination of Page 16 of 65 C/SCA/459/2013 CAV JUDGMENT compensation:

Any party aggrieved by the determination of the amount of compensation may prefer an application to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, not later than ninety days of the receipt of the intimation from the competent authority under rule 4(3).

Rule 6.

Deposit of compensation under section 11: The Central Government the State Government or the Corporation, as the case may be, shall, within twentyone days of the receipt of the intimation under rule 4 deposit the compensation amount in such treasury and under such head of account as may be specified therein that behalf.

Rule 7.

Notice to claimants and reference of dispute to the District Judge.

[1] Where several person claim to be interested in the amount of compensation deposited under subsection [1] of Section 11 and the competent authority has determined under subsection [4] of that section, the persons who in its opinion are entitled to receive the compensation and the amount to be paid to each of them, it shall send intimation thereof to all the persons who have preferred claims for compensation.

[2] If any of the persons referred to in subrule [1] does not accept the decision of the competent authority, he shall within a period of thirty days of the receipt of such intimation inform the competent authority in writing to that effect.

[3] If on receipt of intimation under subrule [2] or otherwise, the competent authority is of the opinion that a dispute regarding the payment of the compensation amount exists, it shall refer the dispute to the District Judge under subsection [5] of section 11.

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[emphasis supplied] 8.3 Further, important and analogous provisions in The Land Acquisition Act, 1894, The National Highways Act, 1956 and The Railways Act, 1989, are reproduced herein below:

The Land Acquisition Act, 1894 Section 11. Enquiry and award by Collector.

Section 11A. Period within which an award shall be made.

Section 12. Award of Collector when to be final.

Section 13. Adjournment of enquiry.

Section 13A. Correction of clerical errors, etc. Section 14. Power to summon and enforce attendance of witnesses and production of documents.

Section 15. Matters to be considered and neglected.

Section 15A. Power to call for records, etc. Section 16. Power to take possession.

Section 17. Special powers in cases of urgency.

Section 18. Reference to Court - [1] Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the appointment of the compensation among the persons interested.

[2] The application shall state the grounds on which objection to the award is taken.

Provided that every such application shall be made -

[a] if the person making it was present of represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;

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[b] in other cases, within six weeks of the receipt of the notice form the Collector under Section 12, subsection (2), or within six months from the date of the Collector's award, whichever period shall first expire.

Sections 19 to 28A provide Procedure to be followed at the stage of reference which include matters to be considered in determining compensation and matters to be neglected in determining compensation, etc. Section 29. Particulars of apportionment to be specified under Part IV - Apportionment of Compensation.

Section 30. Dispute as to apportionment.

Section 31. Payment of compensation or deposit of same in Court. [1] On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next subsection.

[2] If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted:

Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount:

Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18:

Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.

[3] Notwithstanding anything in this section the Collector may, with the sanction of the [appropriate Government] instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of landrevenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned.

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[4] Nothing in the last foregoing subsection shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof.

Section 32. Investment of money deposited in respect of lands belonging to persons incompetent to alienate.

Section 33. Investment of money deposited in other cases.

Section 34. Payment of interest.

[emphasis supplied] The National Highways Act, 1956 Section 3A. Power to acquire land, etc. Section 3B. Power to enter for survey, etc. Section 3C. Hearing of objections.

Section 3D. Declaration of acquisition.

Section 3E. Power to take possession.

Section 3F. Right to enter into the land where land has vested in the Central Government.

Section 3G Determination of amount payable as compensation [1] Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.

[2] Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent, of the amount determined under subsection (1), for that land.

[3] Before proceeding to determine the amount under sub section (1) or subsection (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired.

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[4] Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in subsection (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land.

[5] If the amount determined by the competent authority under subsection (1) or subsection (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government [6] Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.

[7] The competent authority or the arbitrator while determining the amount under subsection (1) or subsection (5), as the case may be, shall take into consideration;

[a] the market value of the land on the date of publication of the notification under section 3A;

[b] the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

                 [c]    the  damage,  if  any,    sustained    by    the    person  
                 interested  at    the    time    of    taking    possession  of  the

land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;

[d] if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.

Section 3H Deposit and payment of amount [1] The amount determined under section 3G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land.

[2] As soon as may be after the amount has been deposited under subsection (1), the competent authority shall on behalf of the Central Government pay the amount to the person or persons Page 21 of 65 C/SCA/459/2013 CAV JUDGMENT entitled thereto.

[3] Where several persons claim to be interested in the amount deposited under subsection (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them.

[4] If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.

[5] Where the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent, per annum on such excess amount from the date of taking possession under section 3D till the date of the actual deposit thereof.

[6] Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under subsection (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of subsections (2) to (4) shall apply to such deposit.

[emphasis supplied] The National Highways [Manner of Depositing the Amount by the Central Government with the Competent Authority for Acquisition of Land] Rules, 1998 Rule 2. The manner of depositing money with the competent authority - [1] Subject to the provisions of the Act, the existing agency authorized by the Central Government in this behalf shall deposit, [a] the amount determined under Section 3G of the Act, and [b] where the amount determined by the arbitrator under section 3G of the Act is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded by the arbitrator, within seven days of such determination or award by the competent authority or by the arbitrator, as the case may be, with the competent authority through the demand draft.

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[2] The competent authority shall deposit the amount received under subrule [1] in a separate Public Deposit Account of India and the provisions of subsection [2] to [4] of Section 3H of the Act shall apply to such deposit.

Explanation - For the purpose of this rule [a] 'Act' means the National Highways Act, 1956 [48 of 1956] [b] The expression 'executing agency' shall have the same meaning as assigned to it under clause [2] of rule 2 of the National Highways Rules, 1957.

The Railways Act, 1989 Chapter VI A introduced by Act 11 of 2008 with effect from 31.01.2008 which provides for Land Acquisition for a Special Railway Project.

Section 20A. Power to acquire land, etc. Section 20B. Power to enter for survey, etc. Section 20C. Evaluation of damages during survey, measurement, etc. Section 20D. Hearing of objections, etc. Section 20E. Declaration of acquisition.

20F. Determination of amount payable as compensation [1] Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.

[2] The competent authority shall make an award under this section within a period of one year from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

Provided that the competent authority may, after the expiry of the period of limitation, if he is satisfied that the delay has been caused due to unavoidable circumstances, and for the reasons to be recorded in writing, he may make the award within an extended period of six months:

Provided further that where an award is made within the Page 23 of 65 C/SCA/459/2013 CAV JUDGMENT extended period, the entitled person shall, in the interest of justice, be paid an additional compensation for the delay in making of the award, every month for the period so extended, at the rate of not less than five per cent, of the value of the award, for each month of such delay.

[3] Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition, an amount calculated at ten per cent, of the amount determined under subsection (1), for that land.

[4] Before proceeding to determine the amount under subsection (1) or subsection (3), as the case may be, the competent authority shall give a public notice published in two local newspapers, one of which shall be in a vernacular language inviting claims from all persons interested in the land to be acquired.

[5] Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in subsection (2) of section 20D, before the competent authority, at a time and place and to state the nature of their respective interest in such land.

[6] If the amount determined by the competent authority under subsection (1) or as the case may be, subsection (i) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government in such manner as may be prescribed.

[7] Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996(26 of 1996) shall apply to every arbitration under this Act.

[8] The competent authority or the arbitrator while determining the amount of compensation under subsection (1) or subsection (6), as the case may be, shall take into consideration [a] the market value of the land on the date of publication of the notification under section 20A [b] the damage, if any sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

Page 24 of 65 C/SCA/459/2013 CAV JUDGMENT

[c] the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;

[d] if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.

[9] In addition to the marketvalue of the land as above provided, the competent authority or the arbitrator, as the case may be, shall in every case award a sum of sixty per centum on such marketvalue, in consideration of the compulsory nature of the acquisition.

Section 20G. Criterion for determination of market value of land.

Section 20H. Deposit and payment of amount.

[1] The amount is determined under section 20F shall be deposited by the Central Government in such manner as may be prescribed by that Government, with the competent authority before taking possession of the land.

[2] As soon as may be after the amount has been deposited under subsection [1], the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto.

[3] Where several persons claim to be interested in the amount deposited under subsection (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them.

[4] If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.

[5] Where the amount determined under section 20F by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent, per annum on such excess amount from the date of taking possession under section 20I till the date of actual deposit thereof.

Page 25 of 65 C/SCA/459/2013 CAV JUDGMENT

[6] Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under subsection [5] shall be deposited by the Central Government, in such manner as may be prescribed by that Government, with the competent authority and the provisions of subsections [2] to [4] shall apply to such deposit.

Section 20I. Power to take possession.

[1] Where any land has vested in the Central Government under subsection (2) of section 20E, and the amount determined by the competent authority under section 20F with respect to such land has been deposited under subsection (1) of section 20H with the competent authority by the Central Government, the competent authority may, by notice in writing, direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorized by it in this behalf within a period of sixty days of the service of the notice.

[2] If any person refuses or fails to comply with any direction made under subsection (1), the competent authority shall apply [a] in case of any land situated in any area falling within the metropolitan area, to the Commissioner of Police;

[b] in case of any land situated in any area other than the area referred to in clause (a), to the Collector of a district, and such Commissioner or Collector, as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorized by it.

[emphasis supplied] 9 That decision relied on by the learned counsel for the petitioners as well as learned counsel for the respondents in the context of their submissions relevant paragraphs are reproduced herein below:

9.1 In the case of Trilok Sudhirbhai Pandya [supra], the Apex Court has reproduced the Scheme from the Act, 1962 and after considering Sections 2 to 12 explained in para 8 of the judgment as under:

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"8. A reading of the Section 2(a) of the Act shows that the person to be appointed as Competent Authority is to perform all or any of the functions of the Competent Authority under the Act in the same area or different areas specified in the notification. Accordingly, the Competent Authority is to hear objections of persons interested in the land to the laying of the pipelines under the land and the order passed by the Competent Authority under Section 5 is final. On the basis of the report of the Competent Authority, the Central Government, if satisfied that the land is required for laying any pipelines for the transport of petroleum or any mineral, may declare under Section 6 of the Act that the right of user in the land for laying the pipelines should be acquired and on the publication of such declaration, the right of user in the land specified in the declaration shall vest absolutely in the Central Government free from all encumbrances. Under Section 10 of the Act, the Competent Authority in the first instance is to determine the compensation payable to a person interested in the land under which the pipeline is proposed to be, or is being, or has been laid for any damage, loss or injury sustained by him. Under Section 11, the amount of compensation determined under Section 10 is to be deposited with the Competent Authority within such time and in such manner as may be prescribed and the Competent Authority is to pay on behalf of the Central Government, the State Government or the Corporation, as the case may be, the compensation to the persons entitled thereto and where several persons claim to be interested in the amount of the compensation, the Competent Authority is to determine the persons who in its opinion are entitled to receive the compensation and the amount payable to each of them. Under Section 12, the Competent Authority has all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 for summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of any document, reception of evidence on affidavits, requisitioning any public record from any court or office and issuing commission for examination of witnesses".

[emphasis supplied] 9.2 In the case of Jaswant Sugar Mills Ltd., Meerut [supra], in paras 10, 11 and 13, the Apex Court held as under:

"10. The Conciliation Officer is by cl. 29 authorized during the Page 27 of 65 C/SCA/459/2013 CAV JUDGMENT pendency of any Conciliation proceeding or proceedings before a Tribunal or an Adjudicator to permit the employer to alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them or to discharge or punish the workmen concerned in such disputes. If the direction of the Conciliation Officer which operates proportion vigor to authorize or to deny to the Company the exercise of its powers under the common law to terminate the employment of its workmen, amounts to an order or determination within the meaning of Art. 136, an appeal with special leave would be maintainable in this Court. The expression "determination" in the context in which it occurs in Art. 136 signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression "order" must have also a similar meaning, except that it need not operate to end the dispute. Determination or order must be judicial or quasijudicial : purely administrative or executive direction is not contemplated to be made the subjectmatter of appeal to this Court. The essence of the authority of this Court being judicial, this Court does not exercise administrative or executive powers i.e. character of the power conferred upon this Court, original or appellate, by its constitution being judicial, the determination or order sought to be appealed from must have the character of a judicial adjudication. The Conciliation Officer is authorized by cl. 29 to grant or withhold permission to determine the employment of a workman concerned in a pending dispute or to alter to his prejudice conditions of his service. Clause 29 severely restricts the right of the employer to terminate employment according to the terms of the contract of employment, and the right is made exercisable upon the direction of the Conciliation Officer if at the time when the right is sought to be exercised, a dispute in which the employer and the employees are concerned, is pending before the Conciliation Officer or in an Industrial Tribunal. The true character of this direction must be examined in the light of the nature of the authority vested in the Conciliation Officer and its impact upon the rights of the parties. If the direction is purely administrative, it will not be subject to appeal to this Court.

11. Question whether a decision is judicial or is purely administrative, often arises when jurisdiction of the superior courts to issue writs of certiorari is invoked. Often the line of distinction between decisions judicial and administrative is thin : but the principles for ascertaining the true character of the decisions are well settled. A judicial decision is not always the act of a judge or a tribunal invested with power to determine questions of law or fact : it Page 28 of 65 C/SCA/459/2013 CAV JUDGMENT must however be the act of a body or authority invested by law with authority to determine questions or disputes affecting the rights of citizens and under a duty to act judicially. A judicial decision always postulates the existence of a duty laid upon the authority to act judicially. Administrative authorities are often invested with authority or power to determine questions, which affect the rights of citizens. The authority may have to invite objections to the course of action proposed by him, he may be under a duty to hear the objectors, and his decision may seriously affect the rights of citizens but unless in arriving at his decision he is required to act judicially, his decision will be executive or administrative. Legal authority to determine questions affecting the rights of citizens, does not make the determination judicial : it is the duty to act judicially which invests it with that character. What distinguishes an act judicial from administrative is therefore the duty imposed upon the authority to act judicially. Mukherjea, J., in The Province of Bombay v. K. S. Advani 1950 SCR 621 : [AIR 1950 SC 222] at p. 670 [of SCR] : [at pp.239240 of AIR] "there cannot indeed be a judicial act which does not create or imposes obligations ; but an act, x x x x x x is not necessarily judicial because it affects the rights of subjects. Every judicial act presupposes the application of judicial process. There is well marked distinction between forming a personal or private opinion about a matter, and determining it judicially. In the performance of an executive act, the authority has certainly to apply his mind to the materials before him ; but the opinion he forms is a purely subjective matter which depends entirely upon his state of mind. It is of course necessary that he must act in good faith, and if it is established that he was not influenced by any ex extraneous consideration, there is nothing further to be said about it. In a judicial proceeding, on the other hand, the process or method of application is different. "The judicial process involves the application of a body of rules or principles by the technique of a particular psychological method", vide Robson's justice and Administrative Law, p.33. It involves a proposal and an opposition, and arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice, vide R. v. London County Council(2). It is not necessary that the strict rules of evidence should be followed : the procedure for investigation of facts or for reception of evidence may vary according to the requirements of a particular case. There need not be any hard and fast rule on such matters, but the decision which the authority arrives at, must not be his "subjective', 'Personal' or Page 29 of 65 C/SCA/459/2013 CAV JUDGMENT 'private' opinion. It must be something which conforms to an objective standard or criterion laid down or recognized by law, and the soundness or otherwise of the determination must be capable of being tested by the same external standard. This is the essence of a judicial function which differentiates it from an administrative function ; and whether an authority is required to exercise one kind of function or the other depends entirely upon the provisions of the particular enactment. x x x x x Generally speaking where the language of a statute indicates with sufficient clearness that the personal satisfaction of the authority on certain matters about which he has to form an opinion finds his jurisdiction to do certain acts or make certain orders, the function should be regarded as an executive function."

To make a decision or an act judicial, the following criteria must be satisfied:

(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of preexisting legal rule;

(2) it declares rights or imposes upon parties obligations affecting their civil rights; and (3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.

9.3 In the case of Special Military Estates Officer [supra], while interpreting provisions of Requisitioning and Acquisition of Immovable Property Act, 1952, Defence of India Act, 1962 and Rules made thereunder in the context of appeals preferred against the requisition of land by Union of India under the provisions of the above Act and when under both the Acts compensation on such requisition is determinable and payable to any person interested and appointed an Arbitrator to Page 30 of 65 C/SCA/459/2013 CAV JUDGMENT determine the compensation under Section 8 and was appealable under Section 11 of the Requisitioning Act, the Apex Court in para 5 held as under:

"5. It is settled law that the right of appeal is a substantive right conferred on a party by the statute. The confer ring of right of appeal is not circumscribed by the right being available at the time of the institution of the cause in the court of the first instance. The right of appeal in a given situation may already be available at the institution of the cause in the court of the first instance or may even be subsequently conferred. In either situation, without any distinction, such right is conferred by statute. Here, as would be seen, Section 25(1) substantively provides that the requisition of property under the Defence Act continuing upto January 10, 1968, is deemingly a requisition by the competent authority under the provisions of the Requisitioning Act and all the provisions of the said Act shall apply thereto accordingly. Proviso (a) however, says that all determinations, agreements and awards for the payment of compensation in respect of any such property for any period of requisition before the said date and in force immediately before the said date, shall continue to be in force and shall apply to the payment of compensation in respect of that property for any period of requisition as from the said date. It is discernible from the scheme of things and from the reading of Section 25 of the Requisitioning Act as a whole that for the period of requisition before January 10, 1968, the determination for payment of compensation under the Defence Act would remain untouched and unaltered for appeal had never been provided under that Act. The reason is not far to seek, because the order of the competent authority under the Defence Act was for the purpose of Defence of India. That purpose having gone with effect from January 10, 1968, the same determination for payment of compensation being applicable to the postdate period was deemingly a requisition by the competent authority under the Requisitioning Act and since all the provisions of the said Act applied to such a requisition, the payment of compensation as from January 10, 1968, became appealable as an appeal is provided under this Act. In that sense, the word 'determination', so far as it related to the period of requisition prior to January 10, 1968, was a determination, final in character whether it was right or wrong as having been made under the Defence Act. But for the period thereafter, the word 'determination' in the context would mean 'final determination' i.e. the determination of the competent authority if unchallenged and becoming final, and if Page 31 of 65 C/SCA/459/2013 CAV JUDGMENT appealed against, final determination by the appellate forum. In this sense, the latter portion of proviso (a) cannot be allowed to eat away the applicability of all the provisions of the Requisitioning Act, inclusive that of appeal under Section 11 of the Act. Thus a harmonious construction of the said proviso with the whole of parent section persuades us to hold that the rate of compensation as determined by the competent authority under the Defence Act was valid uptil the period before January 10, 1968, but from that day onward the same rate of compensation per annum would keep applying till upset or altered in appeal, because deemingly from that date it is a requisition under the other Act and of a different worth and correctable in appeal. The Arbitrator as it appears had passed both the awards on June 30, 197 1, pertaining to the period commencing from May 28, 1963, (the date on which the possession of the land requisitioned was taken) and valid for the period following and ensuing. Plainly the award was made covering a period not only prior to January 10, 1968 but to a period thereafter also. As we have interpreted Section 25, the objection as raised before the High Court was valid for the period before January 10, 1968, but not beyond the period commencing thereafter. The High Court's view , in sustaining the objection for the later period as well, does not commend to us. The Legislature by enacting Section 25 of the Requisitioning Act and on the perishing of the Defence Act, has more than impliedly made available a right of appeal regarding the rate of compensation for a property remaining under requisition for the post 10.01.1968 period; recurring as the rate of compensation would be. We hold it accordingly.

[emphasis supplied] 9.4 In the case of Ashok Leyland Ltd. [supra], the Apex Court in paras 92, 93 & 94, held as under:

"92. The word "Determination" must also be given its full effect to, which presupposes application of mind and expression of the conclusion. It connotes the official determination and not a mere opinion of finding.

93. In Law Lexicon by P. Ramanatha Aiyar, Second Edition, it is stated:

"Determination or order. The expression "determination" signifies an Page 32 of 65 C/SCA/459/2013 CAV JUDGMENT effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression "order" must have also a similar meaning, except that it need not operate to end the dispute, Determination or order must be judicial or quasijudicial. Jaswant Sugar Mills v. Lakshmi Chand,AIR 1963 SC 677, 680. [Constitution of India Article 136]"

94. In Black's Law Dictionary, 6th Edition, it is stated:

"A "determination" is a "final judgment" for purposes of appeal when the trial court has completed its adjudication of the rights of the parties in the action. Thomas Van Dyken Joint Venture v. Van Dyken, 90 Wis. 236, 279 N.W. 2D 459, 463".

[emphasis supplied] 9.5 In the case of Babaji Kondaji Garad [supra], the Apex Court in para 16 held as under:

"16. Sec. 73B provides a legislative mandate. Rule 61 has a status of subsidiary legislation or delegated legislation. Byelaw of a co operative society can at best have the status of an Article of Association of a company governed by the Companies Act, 1956 and as held by this Court in Cooperative Central Bank Ltd. and others v. Additional Industrial Tribunal, Andhra Pradesh and Others MANU/SC/0611/1969 : (1969)IILLJ 698 SC the byelaws of a co operative society framed in pursuance of the provision of the relevant Act cannot be held to be law or to have the force of law. They are neither statutory in character nor they have statutory flavour so as to be raised to the status of law. Now if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to firmly state that the statute prevails over subordinate legislation and the byelaw if not in conformity with the statute in order to give effect to the statutory provision the rule or byelaw has to be ignored. The statutory provision has precedence and must be complied with. Further the opinion of the Deputy Registrar as expressed in his circular dated February 1, 1979 and his letter dated June 4, 1979 has no relevance because his lake of knowledge or misunderstanding of law as expressed in his opinion has no relevance. The High Court relying upon the aforementioned two documents observed as under:

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"There is no inconsistency between Section 73B and the bye laws because even the Government has construed Section 73B in such manner that even though the bye laws are not amended and reserved seats remain unfilled by election the same can be filled up by cooption."Subsections [3], [4] and [5] of Section 11 of the Act, 1962 are about payment of the amount/compensation deposited by concerned acquiring body and inter se apportionment amongst several persons claimed to be interested in the amount of compensation so deposited in case of dispute as to the apportionment of the compensation or any part thereof, the competent authority shall have to refer the dispute to the decision of the District Judge and such reference has to be decided by the District Judge having jurisdiction over the land.

The judgment of the Apex Court in the case of Hindusthan Petroleum Corporation Ltd. [supra] was in the context of challenge of appointment of an officer of a Corporation as an authorized officer to determine the compensation who may have biased in favour of the Corporation came to be negated.

9.6 In the case of N.V.V.Krishna vs. Union of India & Ors. reported in AIR 2004 MADRAS 324, a question arose before the High Court of Madras when the constitutional validity of the Petroleum and Minerals Pipelines [Acquisition of Right of User in Land] Act, 1962 was challenged on the ground that Act, 1962 is ultra vires the second proviso to Article 31A read with Article 300A of the Constitution of India on several grounds, including that neither Section 10 of the Act nor Rules framed under Section 17 of the Act, prescribe any time limit for passing the order of compensation, and therefore, such exercise of acquisition of right of user in land is arbitrary and/or unreasonable, violative of Articles 14 and 19(1)(g) of the Constitution of India. Following objects and reasons of the Act, as submitted by the learned Additional Solicitor General, were taken note by the court in para 3.1:

[i] the Act is not intended to acquire any land, much less any trees Page 34 of 65 C/SCA/459/2013 CAV JUDGMENT thereon, inasmuch as, what was sought to be acquired under the provisions of the Act is only the right of the user of the land, but not the land or the trees thereon;

[ii] once such an intention is declared under a notification issued under section 3(1) of the Act, the competent authority is empowered to enter upon, survey and take levels of any land specified in the notification and to proceed further, as provided under Section 4 of the Act;

[iii] on receipt of the objection in writing to the notification declaring the acquisition of right of user in the land, the competent authority shall provide an opportunity of being heard as provided under Section 5(2) of the Act; and thereafter, the authority shall pass an order either allowing or disallowing the objections and therefore, holding a further enquiry, is purely a discretion conferred on the competent authority;

[iv] as per Section 6 of the Act, immediately on publication of the declaration of the acquisition of the right of user in the land, such right of the user in the land shall vest absolutely with the Government;

[v] the power conferred under Section 8 of the Act to reenter into the land for inspection, and the restriction imposed on the owner or occupier of the land regarding the use of the land under Section 9 of the Act, are intended only for proper maintenance, examination, repair, alteration or removal of pipelines, which is necessary for proper and effective utilization of the pipelines; and [vi] Section 10 of the Act not only provides for compensation for the right of user in the land, but also provides for damages, loss and injury, which includes the removal of trees as evident from Section 10 (3) of the Act. That apart, it was pointed out that an additional compensation is provided under Section 10(4) of the Act to the owner or any other person whose right of enjoyment in that land has been affected, calculating the same at the rate of 10% of the market value of that land and therefore, the loss incurred due to the restrictions imposed under Section 9 of the Act, viz., the owner or occupier of the land shall not plant any trees, which according to the petitioner offends the right of the owner of the land in using the same for the purpose of which the land was put to use immediately before the acquisition proceedings, is duly taken care of, and hence, the contention of the petitioners that the provisions of the Act ultra vires the second proviso to Article 31A and 300A of the Constitution of India is untenable in law.

The Madras High Court, after considering the submissions made by learned counsels for the parties, in paras 6.1, 6.2.1 to 6.2.16, 6.3 to 6.16 observed as under:

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6.1. Issue No.(i): Whether the Petroleum and Minerals Pipelines ( Acquisition of right of User in land) Act, 1962 is ultra vires the second proviso to Article 31A read with Article 300A of the Constitution of India?

6.2.1. For the purpose of clarity, it is apt to refer to the objects and reasons, as well as the scheme of the Act.

6.2.2. The Act is intended to provide for acquisition of rights of the users in land for laying pipelines for transporting petroleum and minerals.

6.2.3. Anticipating that there would be substantial increase in the production of crude oil, natural gas and petroleum products by the public sector oilfields and refineries in India, the Government had felt it necessary to lay petroleum pipelines to serve as an efficient and cheap means of transportation and distribution of petroleum and petroleum products.

6.2.4. The legislature, although was aware that the lands could be acquired outright for laying pipelines for transporting petroleum and minerals under the provisions of the Land Acquisition Act, 1894, was of the considered opinion that the procedure for such acquisition is long drawn and costly, and when petroleum pipelines could be laid underground, outright acquisition of the land is not necessary. Hence, the legislature intended to acquire the mere right of user in the land for laying and maintaining the pipelines.

6.2.5. As per the statement of objects and reasons, the main features of the Act are:

[i] No right of user of land can be acquired for the purpose of laying pipelines unless the Central Government declares its intention by notification in the Official Gazette, and unless objections, if any, filed within twentyone days of that notification are disposed of by the competent authority.

[ii] When final declaration about acquisition is made the right to use land for the purpose of laying pipelines would vest in the Central Government, State Government, or the corporation, as the case may be but notwithstanding such acquisition, the owner or occupier of the land shall be entitled to use the land for the purpose for which such land was put to use immediately before the declaration by the Central Government. But after the date of acquisition he shall not construct any building or any other structure or construct or excavate any tank, well, reservoir or dam or plant any tree, on that land.

[iii] Compensation for the damage, loss or injury sustained by any Page 36 of 65 C/SCA/459/2013 CAV JUDGMENT person interested in the land shall be payable to such person. Besides this, compensation calculated at ten per cent of the market value of the land on the date of the preliminary notification is also payable to the owner and to any other person whose right of enjoyment in the land has been affected by reason of the acquisition. The compensation in both cases is to be determined by the competent authority in the first instance and an appeal lies from its decision to the District Judge.

6.2.6. In the public interest, the Government, therefore, felt it necessary to lay pipelines under such land for transporting petroleum and minerals from one locality to another by way of acquisition of rights of user in the land.

6.2.7. Having acquired such right of user in the land, the Act also provides for punishment for the construction or excavation of any building or other structure, tank, well, reservoir or dam or for planting any tree on any land.

6.2.8. Under the scheme of the Act, Section 3(1) of the Act provides to notify the intention of the Government to acquire the right of user in the land, in the public interest, for the transport of petroleum from one locality to another locality by way of pipelines.

6.2.9. On such notification made under Section 3(1) of the Act, the Government, which proposes to lay pipelines for transporting petroleum and minerals is empowered:

[a] to enter upon and survey and take levels of any land specified in the notification;

[b]     to dig or bore into the subsoil;

[c]     to set out the intended line of work;

[d]    to   mark   such   levels,   boundaries   and   line   by   placing   marks   and  
cutting trenches;

[e]    where otherwise survey cannot be completed and levels taken and

the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle; and [f] to do all other acts necessary to ascertain whether pipeline can be laid under the land, as provided under Section 4 of the Act.

6.2.10. Any person interested in the land may within twentyone days from the date of notification under Section 3(1) of the Act object to the laying of pipelines under the land. On receipt of such objection in writing, Page 37 of 65 C/SCA/459/2013 CAV JUDGMENT the competent authority shall give an opportunity of being heard to the objector either in person or by a legal practitioner. After hearing of such objections, the competent authority shall pass an order either allowing or disallowing the objections, as provided under Section 5 of the Act, which reads as follows:

"Section:5 Hearing of objections:

[1] Any person interested in the land may, within twentyone days from the date of notification under subsection (1) of Section 3, object to the laying of the pipelines under the land.

[2] Every objection under subsection (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard either in person or by a legal practitioner and may, after hearing all such objections and after making such further inquiry, if any, as that authority thinks necessary, by order either allow or disallow the objections. (3) Any order made by the competent authority under sub section (2) shall be final".

[emphasis supplied] 6.2.11. Following the order made under Section 5(2) of the Act, the competent authority shall pass a declaration under Section 6(1) of the Act declaring the acquisition of the right of user in the land. On the publication of the declaration under Section 6(1) of the Act, the right of user in the land specified therein shall vest absolutely with the Government, free from all encumbrances.

6.2.12. Section 7 of the Act provides certain guidelines for laying pipelines, which includes certain restrictions such as, no pipeline shall be laid under:

[a] any land which, immediately before the date of the notification under subsection (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.

6.2.13. Section 8 of the Act empowers the authority to enter the land for inspection, etc., for maintaining, examining, repairing, altering or removing any pipeline, for the purpose of proper and effective utilization of the pipelines, of course, after giving a reasonable notice to the occupier Page 38 of 65 C/SCA/459/2013 CAV JUDGMENT of the land.

6.2.14. Even though the owner or occupier of the land with respect to which declaration was made under Section 6(1) of the Act is entitled to use the land for the purpose for which such land was put to use immediately before the date of the notification under Section 3(1) of the Act, as provided under Section 9 of the Act, such owner or occupier shall not:

[i] construct any building or any other structure;


[ii]     construct or excavate any link, well, reservoir or dam;                   or 

[iii]    plant any tree.

This again is presumably intended for proper and effective maintenance and utilization of the pipelines.

6.2.15. Section 10(1) of the Act provides for award of compensation not only for the acquisition of the right of user in the land, but also to pay compensation to such person for such damage, loss or injury. If the amount so determined under Section 10(1) of the Act is not acceptable by either of the parties, they are at liberty to approach the District Judge under Section 10(2) of the Act. As per Section 10 (3) of the Act, the competent authority and the District Judge, while determining the compensation under Section 10(1) and 10(2) of the Act shall have due regard to the damage and loss by reason of:

[i] the removal of trees or standing crops, if any, on the land while exercising the powers under Section 4, Section 7 or 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.

6.2.16. That apart, Section 10(4) of the Act further provides for additional compensation to the owner or any other person whose right of enjoyment in that land has been affected, which shall be calculated at the rate of 10 per cent of the market value of that land on the date of notification under Section 3(1) of the Act.

6.3. A wholesome reading of the provisions of the Act, in the light of the objects and reasons of the enactment and the legislative intention, makes it clear that in spite of a general law, namely the Land Acquisition Act, Page 39 of 65 C/SCA/459/2013 CAV JUDGMENT 1894, the Parliament thought it fit to enact a special law for acquisition of the right of user in the land, to avoid undue delay in such acquisition, particularly when the total acquisition of land is not required except the acquisition of right of user in the land, which is only a fraction of the right of the user in the land and therefore, the Act is undoubtedly a special enactment.

6.4. It is never the intent of the authority to acquire any tree that is raised in the lands, but once a notification is issued under Section 3(1) of the Act declaring the intention of the Government to acquire the right of user in the land, by virtue of the powers conferred under Section 4 of the Act, the authority is entitled to cut down and clear away any part of any standing crop, fence or jungle. By that means, immediately after the issue of notification under Section 3(1) of the Act, referred to above, and even before holding an enquiry under Section 5(1) of the Act or passing a declaration under Section 6(1) of the Act, the Act empowers the authorities to cut trees and standing crops, in order to achieve the object of the enactment, namely for laying pipelines for transporting petroleum and minerals from one locality to another, in the public interest.

6.5. That apart, the opportunity of being heard provided under Section 5(2) of the Act to the objectors of the notification under Section 3(1) of the Act, namely the owner or occupier of the lands, is only a summary proceeding, which does not require any fullfledged enquiry, as in the case of the land acquisition proceedings under Section 5 A of the Land Acquisition Act, 1894, because immediately after the notification under Section 3(1) of the Act, the authorities are empowered:

[a] to enter upon and survey and take levels of any land specified in the notification;

[b]     to dig or bore into the subsoil;

[c]     to set out the intended line of work;

[d]    to   mark   such   levels,   boundaries   and   line   by   placing   marks   and  
cutting trenches;

[e]    where otherwise survey cannot be completed and levels taken and

the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle; and [f] to do all other acts necessary to ascertain whether pipeline can be laid under the land.

6.6. It is, therefore, clear that the authorities are empowered to even take possession of the land prior to the hearing of objections under Section Page 40 of 65 C/SCA/459/2013 CAV JUDGMENT 5(1) of the Act and the declaration under Section 6(1) of the Act. Hence, further enquiry, if any, after giving an opportunity of being heard to the objector, as provided under Section 5(2) of the Act is purely a discretion conferred on the authorities concerned and accordingly, no such second hearing is required as contended on behalf of the petitioners placing reliance on Section 5(2) of the Act.

6.7. Section 6(2) of the Act makes it clear that immediately on publication of declaration under Section 6(1) of the Act, the right of user in the land shall vest absolutely with the Government, which is unlike in the land acquisition proceedings under the Land Acquisition Act, 1894, where taking over possession and vesting of right, except in cases of emergency, only follows after passing of the award.

6.8. Besides, the restrictions imposed on the authorities under Section 7 of the Act in laying the pipelines indicate that the authorities should exercise the power of laying pipelines, even after acquisition of right of user in the land, only reasonably and not arbitrarily. On the other hand, once such acquisition of right of user in the land is declared under Section 6 of the Act and pipelines are laid, the authorities are empowered to maintain, examine, repair, alter or remove any pipeline, for the purpose of proper and effective utilization of the pipelines, and in order to achieve such object, Section 9(2) of the Act further imposes certain restrictions that the owner and the occupier shall not after declaration;

[i] construct any building or any other structure;

[ii] construct or excavate any link, well, reservoir or dam; or (iii) plant any tree.

[iii] These restrictions are imposed only for proper and effective maintenance of the pipelines and to avoid damage of the same.

6.9.

Even though, by and large, the owner or occupier are entitled to use the land for the purpose for which such land was put to use immediately before the date of the notification under Section 3(1) of the Act, the restriction to (i) construct any building or any other structure; (ii) construct or excavate any link, well, reservoir or dam; or (iii) plant any tree, in my considered opinion, is reasonable restriction and the classification that the owners of the lands should not plant trees, in my considered opinion, would not offend either Article 14 or Article 19(1)(g) of the Constitution of India.

6.10. Even though the Government is not entitled to acquire the trees, incidentally, the authorities are empowered to cut down trees and clear away any standing crop, fence or jungle; and if any damage, loss or injury Page 41 of 65 C/SCA/459/2013 CAV JUDGMENT is caused thereunder, Section 10 of the Act specifically provides compensation for the same. That apart, compensation for the removal of the trees or standing crops, is provided under Section 10 (3) of the Act; and if there is any alleged damage, loss or injury of future proceeds or usufruct of the land, the same is also protected under Section 10(4) of the Act by an award of additional compensation.

6.11. An effective argument was made that the impugned legislation is ultra vires the second proviso of Article 31A read with Article 300A of the Constitution of India. In this regard, it is apt to refer the second proviso to Article 31A and Article 300A of the Constitution of India.

Article 31A: Saving of laws providing for acquisition of estates, etc: (1) Notwithstanding anything contained in Article 13, no law providing for:

[a] the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or [b] the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or [c] the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or [d] the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or [e] the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19;

Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent;

Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is Page 42 of 65 C/SCA/459/2013 CAV JUDGMENT within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.

[2] In this article [a] the expression 'estate' shall, in relation to any local area, have the same meaning as that expression or its equivalent has in the existing law relating to land tenures in force in that area and shall also include [i] any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;

[ii] any land held under ryotwary settlement;

[iii] any land held or let for purposes ancillary thereto, including waste land, forest land, land for pasture of sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;

[b] the expression "rights" in relation to an estate, shall include any rights vesting in a proprietor, subproprietor, underproprietor, tenure holder, raiyat, underraiyat or other intermediary and any rights or privileges in respect of land revenue".

[emphasis supplied] "Article 300A Persons not to be deprived of property save by authority of law:

No person shall be deprived of his property save by authority of law."

6.12. Of course, the word 'property' used in Article 300A must be understood in the context in which the sovereign power of eminent domain is exercised by the State and property expropriated. No abstract principles could be laid. Each case must be considered in the light of its own facts and setting. The phrase "deprivation of the property of a person"

must equally be considered in the fact situation of a case. Deprivation connotes different concepts. Article 300A gets attracted to an acquisition or taking possession of private property, by necessary implication for public purpose, in accordance with the law made by Parliament or a State Legislature, a rule or a statutory order having force of law. It is inherent in every sovereign State by exercising its power of eminent domain to expropriate private property without owner's consent. Prima facie, State would be the judge to decide whether a purpose is a Page 43 of 65 C/SCA/459/2013 CAV JUDGMENT public purpose. But it is not the sole judge. This will be subject to judicial review and it is the duty of the court to determine whether a particular purpose is a public purpose or not. Public interest has always been considered to be an essential ingredient of public purpose. But every public purpose does not fall under Article 300A nor every exercise of eminent domain an acquisition or taking possession under Article 300A. Generally speaking preservation of public health or prevention of damage to life and property are considered to be public purposes. Yet deprivation of property for any such purpose would not amount to acquisition or possession taken under Article 300A. In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300A. If there is no law, there is no deprivation, vide Jilubhai Nanbhai Khachar v. State of Gujarat, (1 995) Supp (1) SCC 596.

6.13. In the instant case, I do not see any violation to second proviso of Article 31A read with Article 300A of the Constitution of India, as the legislature has taken care of the above fundamental rights by providing compensation under Sections 10(1) to 10(4) of the Act. The contention of the petitioners that the impugned legislation is ultra vires second proviso to Article 31A read with Article 300A of the Constitution of India, therefore, does not hold good.

6.14. Even though neither Section 10 of the Act nor the Rules framed under Section 17 of the Act prescribe any time limitation for passing the order of compensation, that, by itself, may not be a ground to invalidate the Act as it is a settled principle of interpretation that the Act is presumed to be valid in law and the authorities are empowered to discharge the statutory obligation thereunder within a reasonable time, even though no provision is made for discharging the statutory duties provided thereunder. If there is any undue and unreasonable delay in determining the compensation while exercising the powers conferred under Section 10 of the Act, as rightly pointed by the learned Additional Solicitor General, the party aggrieved by such delay is at liberty to approach this Court seeking a writ of Mandamus to pay the compensation; or to challenge such arbitrary and unreasonable delay in passing the order for compensation; or to challenge the acquisition proceedings if they are so advised, but the mere non prescription of time limit for determining the compensation under Section 10 of the Act shall not be a ground to invalidate the Act, inasmuch as the Courts are not concerned with the actual implementation of the schemes envisaged by the Act. In the instant case, since the competency of the legislature in enacting the impugned Act is not at all questioned and this Court having satisfied that none of the provisions of the enactment fetter any of the provisions of the Constitution of India, much less any other law in force, can hardly strike it down when the same is enacted in the larger public interest.

Page 44 of 65 C/SCA/459/2013 CAV JUDGMENT

6.15. That apart, if either of the parties are aggrieved by the determination of the compensation, either for the acquisition of the right of user in the land or for damage, loss or injury under Section 10(3) of the Act or as to the additional compensation provided under Section 10(4) of the Act, they are entitled to prefer an appeal before the District Judge under Sections 10(2) and 10(5) of the Act. In any event, the inadequacy of compensation determined under Section 10 of the Act cannot be a ground to challenge the scheme of the Act, as such ground, in my considered opinion, is nothing but illusory and surmise.

6.16. I am, therefore, of the considered opinion that none of the provisions of the Act could be declared arbitrary or unreasonable or violative of Articles 14 , 19(1)(g), or ultra vires to second proviso to Article 31A read with Article 300A of the Constitution of India.

[emphasis supplied] In para 6.14 of the above judgment, it was held that in absence of period of limitation for passing order of compensation, that, by itself, may not be a ground to invalidate the Act as it is a settled principle of interpretation that the Act is presumed to be valid in law and the authorities are empowered to discharge the statutory obligation thereunder within a reasonable time, even though no provision is made for discharging the statutory duties provided thereunder.

9.7 The learned Single Judge of this Court in Special Civil Application No.14027 of 2011, the case of Mahendrasinh Dilavarsinh Raj vs. Union of India, which is relied upon by learned advocate for the petitioners and submitted that after the above judgment, now the competent authority has taken decision and thereafter also the amount of compensation / award is not deposited. In the above judgment, one of the main questions fell into consideration of the learned Single Judge is about duty cast upon and the jurisdiction of the authority to take into consideration any loss, damage, injury to any other property, whether movable or immovable and compensation is to be determined and paid Page 45 of 65 C/SCA/459/2013 CAV JUDGMENT for such loss, damage, injury suffered on such land or only the land under which the pipeline is laid having Right of User and the learned Singe Judge after referring to various sections, in para 28, 29, 30, 31 and 32 and 35 held as under:

"28. The Competent Authority is a quasijudicial authority exercising specific powers under the Act. As per the provisions of Section 10(1) of the Act, the amount of compensation for damages, loss or injury sustained by any person interested in the land under which the pipeline is proposed to be laid, is to be determined, in the first instance, by the Competent Authority. It is only when the amount of compensation as determined by the Competent Authority under subsection (1) of Section 10 is not acceptable to either of the parties that an application can be made to the District Judge, as provided in subsection (2) of Section 10. Subsection (3) of Section 10 empowers the Competent Authority or the District Judge, while determining the compensation under subsections (1) or (2) of Section 10, to take into consideration all relevant aspects, as mentioned in clauses (i) to (iii) of subsection (3) of Section 10, with regard to the loss or damage sustained by any person interested in the land. As per clause

(iii) of subsection (3), the Competent Authority is bound to take into consideration any injury to any other property, whether movable or immovable, while determining the amount of compensation. The words "any injury" to "any other property" are clearly indicative of the intention of the Legislature that compensation is to be determined not only for damages suffered on the land under which the pipeline is being, or has been, laid (RoU) but also for damages caused due to laying of the pipeline, to "any other property" (out of RoU).

29. Subsection (1) of Section 10 refers to damage, loss or injury sustained by any person interested in the land under which the pipeline is proposed to be laid, or is being laid. This provision has to be read with clause (iii) of subsection 3 of Section 10 and read in this manner, the clear and unambiguous meaning that emerges is that compensation is to be determined by the Competent Authority, having due regard to the damage or loss sustained by any person by reason of any injury to any other property whether movable or immovable, or the earnings of such persons caused in any other manner. In the present case, there has been no determination of compensation at all by the Competent Authority, therefore, the question of approaching the District Judge under subsection (2) of Section 10 does not arise. The language of Section 10 is clear and unambiguous and the entire Section has to be read as a composite whole. Such a reading leaves no manner of doubt that the Competent Authority is empowered to determine compensation with respect to the damages caused in the land under which the pipeline Page 46 of 65 C/SCA/459/2013 CAV JUDGMENT is laid and also with respect to injury to "any other property".

30. The term "RoU" indicates Right of User and has not been defined in the Act. It has been clarified by the learned advocate for respondents Nos.3 to 5 that the area of RoU is fixed taking into consideration the width of the pipeline to be laid. In any case, the definition of the width of the RoU may have relevance for technical reasons but cannot override the express provisions of the Act.

31. In the considered view of this Court, clause (iii) of subsection (3) of Section 10 read with subsection (3) makes it amply clear that the Competent Authority has the jurisdiction to determine the amount of loss or damage sustained by any person interested in the land by reason of any injury to any other property, whether movable or immovable. The words "any other property", in view of this Court, include the other property that may not strictly fall within the RoU area. The procedure for laying pipelines entails entering upon the land, digging, bringing in machinery and doing several other acts that may cause damage to land other than the strip of land underneath which the pipeline is being laid (RoU). To enter the RoU land, access has to be taken from other land. In the case of the petitioners, their water supply pipeline has been blocked and damaged and even the Narmada canal water supply line for irrigation has been damaged, causing huge losses to thousands of fruit bearing trees. This aspect is not denied by the respondents and a Panchnama under Rule 4A(2) has been drawn up that highlights the extent of the damage.

32 Rule 4A(2) specifically states that for compensation for `other' damages and losses while exercising the powers conferred under the Act or Rules, the Competent Authority `shall' have a Panchnama prepared, in the manner specified by the said Rule. After following the mandate of Rule 4A(2) and preparation of the Panchnama, the Competent Authority, for reasons best known to him, has refused to perform the statutory duties entrusted to him by Section 10 of the Act, for the apparent reason that GAIL has written to him, stating that he has no jurisdiction to decide claims for out of RoU areas and the claimants should be told to approach the Contractors of GAIL. The Competent Authority is especially empowered by the Act to perform the duties and fulfill the obligations laid down in the Act and Rules. In determining the claims for compensation as a quasi judicial authority, the Competent Authority is bound to perform his statutory duties independently, and in accordance with law. Having expressed an opinion vide communication dated 12.08.2011 that he is empowered by the Act to determine the claims of the petitioners, the Competent Authority appears to have found it more convenient to toe the line of GAIL, which is the acquiring body. In the view of this Court, the rejection of the claim application of the petitioners on the ground that they should approach the Contractors of GAIL, is a blatant violation of the Page 47 of 65 C/SCA/459/2013 CAV JUDGMENT provisions of Section 10 of the Act. This action of the Competent Authority amounts to dereliction, if not abdication, of the statutory duties that he is bound to perform under the Act. It is nowhere mentioned in the Act that the Competent Authority is empowered to relegate the claimants to the Contractors of the acquiring body. The action of the Competent Authority in rejecting the claim application of the petitioners on this ground is clearly illegal, arbitrary, and unsustainable in law.

33 Any contract entered into by GAIL with its contractors is their internal matter, having no relevance, whatsoever, insofar as determination of compensation under the Act is concerned. The petitioners do not, in any manner, figure in the said contract. As there is no privity of contract between the petitioners and the Contractors of GAIL, the arrangement for payment of compensation worked out by GAIL with its Contractors under the contract, is of no consequence and does not bind either the petitioners or the Competent Authority. The provisions of the Statute, more especially, Section 10, cannot be modified or nullified by any provisions of a contract entered into by GAIL. The manner in which the amount of compensation is to be determined is clearly laid down in Section 10 of the Act read with the relevant Rules, and cannot be deviated from by the Competent Authority, at the behest of GAIL.

34 An objection has been raised by the learned advocate for respondents Nos.3 to 5 to the effect that the petitioners should approach the District Judge and this Court may not entertain the petition as it involves disputed questions of fact. Both these submissions are devoid of substance. Under Section 10(2) of the Act, the parties can approach the concerned District Judge only in the eventuality that the amount of compensation determined by the Competent Authority is not acceptable to them. In the first instance, it is the Competent Authority that is to be approached and the petitioners have rightly made their claim applications before the said Authority. Section 10 does not envisage that the claimants should straightaway approach the concerned District Judge. Further, Section 14 of the Act imposes a bar on the jurisdiction of Civil Court in respect of a matter that the Competent Authority is empowered to determine. Section 10, read with Rules 4 and 4A, lay down a composite procedure to be followed while determining the claims for compensation. The clear statutory mandate cannot be modified or deviated from, to suit the Acquiring Body. When the Act and Rules lay down the procedure to be followed, the parties are bound to follow the same. Further, the Court finds that no disputed questions of fact arise in this case. It is an admitted fact that extensive damage has been caused to thousands of fruit bearing trees, resulting in huge losses to the petitioners. This is clear from the Panchnama. The only question that now remains is regarding determination of compensation by the Competent Authority. This cannot be said to be a disputed question of fact. Even while rejecting the applications of the petitioners, the Page 48 of 65 C/SCA/459/2013 CAV JUDGMENT Competent Authority has not stated that he has no jurisdiction to determine the claims. He is, therefore, bound to do so under the Act and Rules. No disputed questions of fact arise for the adjudication of this Court.

35 It cannot be lost sight of that the petitioners are agriculturists, who have lost thousands of fruit bearing trees due to the process of laying of the pipeline by respondents Nos.3 to 5. They have made applications for claiming compensation as per the provisions of the Act and Rules. They cannot be relegated to the Contractors of GAIL, dehors the provisions of the Act. As discussed herein above, the Act and Rules contemplate determination of compensation for injury and damage to "any other property", whether movable or immovable, and even for loss of earnings caused in any other manner. There is no legal or justified reason for not determining compensation for the claims made by the petitioners, who are being made to suffer and wait unnecessarily, for no fault of their own. The petitioners have availed of the only remedy available to them under the Act. Any internal arrangement between GAIL and its contractors, by virtue of a contract, is not binding upon them. The Competent Authority is, therefore, bound to determine the claims of the petitioners in accordance with the provisions of Section 10 of the Act.

[emphasis supplied] 10 Being aggrieved by the order dated 20.01.2012 passed by the learned Single Judge in Special Civil Application No.14027 of 2011, the respondent - GAIL has filed Civil Application [for condonation of delay] No.2708 of 2013 in Letters Patent Appeal [St.] No.237 of 2012 in Special Civil Application No.14027 of 2011 and Division Bench of this Court vide order dated 03.07.2013 dismissed Civil Application for condonation of delay. Order dated 03.07.2013 reads as under:

"1. The present civil application is filed by the Chairman of GAIL (India) Ltd. and two other officers, namely, General Manager (O&M) and Chief Manager GAIL Ltd. The present civil application is filed seeking condonation of delay of 362 days and this delay of 362 days is sought to be explained in para 2 of the application, which reads as under:

2. Thus the instant application is filed for seeking condonation of delay in preferring the appeal. The applicant Page 49 of 65 C/SCA/459/2013 CAV JUDGMENT states and submits that it is a Govt. of India undertaking and there is a hierarchy of officers in the system through which a file is moved in order to take a decision. The applicant basically submits that, delay is attributed to system of functioning in which file has to move through various tables, before decision is taken on it. The applicant states that applicant has not gained (not) anything by filing this appeal belatedly. Applicant states that after the impugned judgment was passed some time was taken by the then ld. Advocate appearing for the applicant to supply the copy of the order. In fact, the matter was handled by the Vaghodia Office and hence as the file had moved to Vadodara office inadvertently, some time was consumed in rediverting the file to Vadodara office, after the Vadodara office got the file, with necessary comments and vetting in due course of time it was sent to New Delhi office, then the New Delhi office called for comments from Vadodara office. This process consumed time, after comments were received from Vadodara office, in usual course, the Delhi office, took some time to place the file before competent authority to take some decision. In this scenarios, it is worthwhile to state that as GAIL is Govt of India undertaking transfer of officers also take place in routine manner, sometimes more time is consumed, when it is placed before the officer who has recently joined. It is in this backdrop, that this time is taken to prefer appeal. Thus the applicant has satisfactorily explained the delay in preferring the appeal.

2. The averments made in para2 are as vague as possible. No one single date is given as to on which date certified copy of the order was received by the advocate, on which date the advocate forwarded it to the concerned officer, when the concerned officer forwarded it to the higher officer etc. In view of this, we find that there is no sufficient explanation given for the delay caused in filing the LPA.

Hence, the civil application is dismissed."

10.1 That any act empowering acquisition of land either on permanent basis or as a right of user is an expropriating piece of legislation and to be interpreted accordingly. The owners, occupier or a person having any interest in the land are ordinarily agriculturists / farmers and use land accordingly. Though right of property is not a Page 50 of 65 C/SCA/459/2013 CAV JUDGMENT fundamental right, but is included under Article 300A of the Constitution of India and still it is a constitutional as well as human right. Learned Single Judge in the case of Mahendrasinh Dilavarsinh Raj [supra], observed the necessity of deciding claim of an agriculturists qua the land which may not be exactly the land acquired under the notification. All the relevant statutes of acquisition of land referred to in earlier paragraphs obligate depositing amount of claim and other subsections are pertaining to preferring application in case of disagreement qua the amount of claim by either of the parties and secondly application before the appellate forum in case of where there is dispute of apportionment of claim amount amongst the rival claimants, but the fact remain that before taking possession of the land under acquisition, the amount of compensation is to be deposited. In the present statute viz. Act, 1962, by virtue of Section 6(2), land absolutely vest into Central Government and the amount of compensation has to be deposited at the earliest.

10.2 That object and reasons of the Act along with scheme of the Act is considered by the Apex Court in the case of Trilok Sudhirbhai Pandya [supra]. The learned Single Judge of Madras High Court in the case of N.V.V.Krishna [supra] no doubt upheld the constitutional validity of the Act, 1962 in the context of challenge on the ground that Act, 1962 is not ultra vires the second proviso to Article 31A read with Article 300A of the Constitution of India and nonprescription of time limit for determination of compensation under Section 10[1] of the Act by itself is not arbitrary, unreasonable or violative of Article 14 , 19[1][g] of the Constitution of India and remedy available to the aggrieved person against the delayed or prolonged proceedings before the competent authority to determine the compensation would lie by invoking writ jurisdiction of the concerned High Court under Article 226 Page 51 of 65 C/SCA/459/2013 CAV JUDGMENT of the Constitution of India and further objects and reasons of the Scheme of the Act was considered in paras 6.2.1 to 6.2.6 of the said judgment is already reproduced in this judgment, and therefore, it is not necessary to reiterate those objects and reasons so interpreted by learned Single Judge of High Court of Madras for which I am in complete agreement and also other provisions of the Act. At the same time, the issue about stage of depositing the amount of compensation so fixed and/or determination by the competent authority is to be considered in light of provisions of the Act and Rules.

10.3 Section 10 of the Act, 1962 is about compensation, which include damage or loss or any injury sustained by any person interested in the land under which pipeline is proposed to be, or is being or has been laid and liability of Central Government, the State Government or the Corporation, as the case may be to pay compensation to such person for such damage, loss or injury and the amount of which shall be determined by the competent authority in the first instance. Subsection [2] of Section 10 comes into play only in case the amount of compensation determined by the competent authority under subsection [1] of Section 10 is not acceptable to either of the parties and upon application by either of the parties to be made before the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, the amount of compensation shall have to be determined by the District Judge. Subsection (3) of Section 10 mandates both competent authority and district judge, as the case may be, shall have due regard to the damage or loss sustained by any person interested in the land. That procedure prescribed under Rule 4A to be followed by the competent authority while conducting inquiry for determination of compensation under subrule (3) of Rule 4 and in exercise of power under Section 10(1) of the Act.

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10.4 Rule 4 of the Rules, 1963 if seen in juxtaposition to section 10 of Act, 1962, it is about filing of claims for compensation and Rule 4A prescribes procedure to be followed while conducting inquiry for determining compensation under subrule [3] of Rule 4 of the Rules, 1963 by the competent authority. Rule 4(3) mandates the competent authority to hold an inquiry, as provided under rule 4A(1) and (2) as the case may be upon receipt of claim for compensation so as to fix the compensation and thereafter inform the parties referred in subsections [2] and [5] of Section 10 of the amount of compensation so fixed. Thus, upon fixation of the compensation after following procedure as provided in Rule 4A(1), (2) of making such inquiry as envisaged therein, the parties are to be informed referred to in subsection [2] and [5] of Section 10 of compensation so fixed.

10.5 Rule 5 provides for preferring application to the District Judge for determination of compensation. In case any party is aggrieved by the determination of the amount of compensation may prefer an application to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, not later than ninety days of the receipt of the intimation from the competent authority under rule 4(3). Thus, time limit of 90 days is prescribed for preferring application to the District Judge to an aggrieved party and such limitation would commence from the receipt of intimation from the competent authority under Rule 4(3). Thus, unless intimation of fixation of compensation is not received from the competent authority under Rule 4(3) by a person/party and such person if aggrieved by such fixation of an amount, would have no opportunity to prefer an application under Section 10(2) of the Act to the District Judge for determination of compensation within the prescribed time limit of 90 days of the receipt Page 53 of 65 C/SCA/459/2013 CAV JUDGMENT of intimation from the competent authority under Rule 4(3). This would be in consonance with and appropriate with the language of Section 11(1) read with Rule 6 of the Rules, 1963. Section 11(1) mandates the Central Government, State Government or the Corporation, as the case may be, to deposit the amount of compensation determined under Section 10 in such time and in such manner as prescribed and the prescription of such time and manner is provided in Rule 6 of the Rules and accordingly the amount of compensation is to be deposited within 21 days from the receipt of the intimation under Rule 4 of the Rules in such treasury and under such head of amount as may be specified therein in that behalf.

10.6 Subsection [3] of Section 10 mandates that the competent authority or the District Judge exercising powers under subsection [1] or subsection [2] of Section 10 as the case may be, shall have due regard to the damage or loss sustained by any person interested in the land by reason of certain entries, as provided in [i], [ii] and [iii] of the above subsection.

10.7 Subsection [4] of Section 10 would apply where the right of user of any land vested in the Central Government, the State Government or the Corporation, as the case may be, and in addition to the compensation, if any, amount payable under subsection [1], such Government and/or corporation shall 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 a ten percent of the market value of that land on the date of notification under subsection [1] of section 3. Thus, subsection [4] of Section 10 would come into play where right of user of any land has vested in the Central Government, State Government or the Page 54 of 65 C/SCA/459/2013 CAV JUDGMENT Corporation, as the case may be. While considering the market value of the land on the date of notification under subsection [1] of Section 3 in case of vesting of land any dispute arise about market value so determined and it is not acceptable to either of the parties, on application by either of the parties to the District Judge referred to in subsection [2], to be determined by that District Judge. Under subsection[6] of section 10 the decision of the District judge under subsection [2] or subsection [5] as the case may be shall be final.

10.8 Therefore, when the compensation so determined by the competent authority under subsection [1] of section 10 of the Act is acceptable to either of the parties and if intimation is sent thereafter to such parties by the competent authority and if the amount of compensation is not deposited within 21 days of receipt of such intimation, the Central Government, the State Government or the Corporation, as the case may be shall be liable to pay interest thereof @6% p.a. from the date on which compensation had to be deposited till the date of the actual deposit and that is the scheme of Section 11 of the Act which provide for deposit and payment of compensation. That under subsection [1] of section 11the amount of compensation determined under section 10 shall be deposited by the Central Government,the State Government, the Corporation, as the case may be with the competent authority within such time and in such manner, as may be prescribed and such time and such manner is prescribed under Rule 6 of the Rules, which provide that the amount of compensation is to be deposited within 21 days of the receipt of the intimation under Rule 4 of the Rules.

If the contention of the learned counsel for the GAIL is accepted, such deposit would be only after proceedings under Section 10 attains finality under Section 10(6) of the Act, the provisions of Rules 5 Page 55 of 65 C/SCA/459/2013 CAV JUDGMENT and 6 would be rendered nugatory.

10.9 No doubt, the Act, 1962 and Rules, 1963 are about right of user qua the land acquired by the authority for which compensation is to be determined, deposited and paid towards loss or damages and also other damages qua the land to any person affected, but even a part or parcel of the land is acquired for user purpose, not only that part and parcel of the land beneath which pipelines are laid, which becomes un cultivable, but the land appurtenant or adjoining or the land under which pipelines are laid also become uncultivable and by and large because of such right of user of the land affected persons are farmers / agriculturists and likewise. In the above context though strictly speaking the Act, 1962 and Rules, 1963 cannot be compared with the statute like Land Acquisition Act, but still it remains in the realm of expropriatory legislation and to be considered accordingly. That comparative statues and provisions referred to in earlier paragraphs would reveal that whenever the possession of the land is taken and a person deprived of such possession of the land is to be paid compensation immediately after deposing such compensation by the competent authority. In the statute of 1962 vesting of the land becomes automatic and absolute by virtue of exercise of power under Section 6 of the Act, 1962, and therefore, depositing the amount and payment thereof has to be as early as possible and at every stage the claimant or the affected person is not to take recourse of invoking writ jurisdiction of the High Court by filing writ petitions.

10.10 That "in the first instance" of subsection (1) of Section 10 is only with a view to avoid any initiation of simultaneous proceedings before the District Judge, as per para 34 of Mahendrasinh Dilavarsinh Raj [supra], but that does not mean that proceedings to be initiated by Page 56 of 65 C/SCA/459/2013 CAV JUDGMENT an aggrieved person under subsection (2) of Section 10 is continuation of the proceedings or second round of litigation available before the District Judge though competent authority has decided the amount of claim. No such proceedings is initiated when both the parties so referred in subsection (1) of section 10 are satisfied with the amount of award. That duty cast upon the competent authority under Rule 4(3) is to intimate the parties viz. claimant and the acquiring body and intimation to be given to the parties referred to in subsection (2) of Section and subsection (5) of section 10. The parties so referred are the same parties defined in subsection (1) of Section 10. Further, the competent authority is defined in Section 2(a) means any person or authority authorized by Central Government by notification in the official gazette to perform the function of the competent authority under the Act and corporation is also defined under section 2(b) and in the facts of this case the Corporation, herein the respondent - GAIL and intimation of fixing / determination of compensation that is to be sent to the parties by the competent authority under Section 2(a) is to a claimant and a corporation as defined under Section 2(b) of the Act. As stated earlier, at the end of proceedings under Section 10, order passed by the District Court in case of any dispute between the aggrieved persons under Section 10(2) and/or Section 10(5), as the case may be, copy of the order passed by the District Judge will otherwise also be available to the parties and the deposit is therefore to be made within 21 days of receipt of intimation of determination of amount of compensation under Section 10(1) by the competent authority so as to avoid the recurring interest in case of failure so provided under Section 11(2) of the Act. Considering the overall scheme of the claim, procedure of inquiry to be adopted by the competent authority to determine the compensation, in case of aggrieved person preferring an application before the District Judge and redetermination of compensation and the amount to be deposited in Page 57 of 65 C/SCA/459/2013 CAV JUDGMENT such time and manner so provided in Rules 5 and 6 read with Rule 4(3) of the Rules do not reveal any conflict between the statute and rules.

10.11 As per the decision of the Apex Court in the case of Trilok Sudhirbhai Pandya [supra] the Apex Court in para 8 while considering the scheme of the Act observed that under Section 11 of the Act, the amount of compensation determined under Section 10 is to be deposited with the competent authority within such time and in such manner as may be prescribed and competent authority is to pay on behalf of the Central Government, State Government or the Corporation, as the case may be. Therefore, such time to deposit the compensation determined by the competent authority is prescribed under Rule 6 of Rules i.e. within 21 days of the receipt of intimation / information under Rule 4 of the Rules and that will be in consonance with provisions of Rule 5 which provides for preferring application before the District Judge by aggrieved party against fixation / determination of compensation by competent authority within 90 days of the receipt of intimation under Rule 4(3) of the Rules. Thus, procedure to be followed by the competent authority under Rule 4A[1] and 4A[2] of the Rules both for compensation of land due to deprivation in right of enjoyment and / or for compensation for other damages or loss while exercising powers conferred under the Act or Rules is only by the competent authority. In the above circumstances, intimation of fixation / determination of compensation is to be sent by the competent authority to the parties of the proceedings. Therefore, the submissions raised by learned counsel for the respondent - GAIL qua rule 4(3) about intimation to be sent to the parties referred to in Section 10(2) and 10(5) and that too at the end of proceedings before the District Judge, which shall be final under Section 10(6) of the Act and not prior to that would render provisions of Rules 5 and 6 nugatory and deposit and payment of the amount in the manner so prescribed under Page 58 of 65 C/SCA/459/2013 CAV JUDGMENT Section 11(1) would be meaningless. Mentioning of phrase "in the first first instance" under Section 10(1) is only with a view to avoid any kind of conflict about procedure to be followed by the competent authority while determining the compensation in the first instance and the District Judge in case of an aggrieved party preferring an application under sub section (2) of Section 10 of the Act. That both the competent authority as well as the District Judge, as the case may be, shall have to pay due regard to certain factors as provided in clauses [i], [ii] and [iii] of subsection (3) of Section 10 of the Act.

10.12 Thus, the District Judge, on an application under sub section (2) of Section 10 can revisit those reasons for damage or loss sustained by any person interested in the land and the District Judge in exercise of powers under Section 10(2) of the Act is not obliged to follow the procedure as envisaged under Rule 4A[1] and/or [2] of the Rules. Thus, at the end of proceedings under Section 10 of the Act, 1962, if any person aggrieved will be eligible to receive a copy of the order of the learned District Judge and no intimation is necessary for such order. That intimation, as referred to in Rule 4(3) of the Rules, is the intimation to be sent by the authorized officer or the competent authority appointed under the Act and Rules about determination of compensation in the first instance in exercise of powers under Section 10(1) of the Act. In a given case, it may happen that no one is aggrieved by determination of compensation by competent authority under Section 10(1) and in such scenario no purpose would be served if provisions of Rule 4(3) is interpreted as per submission made by learned counsel for the respondent - GAIL that the intimation so referred would be at the stage of final conclusion of the proceedings under Section 10 of the Act. The above section 10 and Rule 4 if seen in the context of Section 11 deposit and payment of compensation, section 11(2) cast obligation to Page 59 of 65 C/SCA/459/2013 CAV JUDGMENT pay interest @6% p.a. from the date on which compensation had to be deposited till date of the actual deposit in case if the amount of compensation is not deposited within such time and in such manner as may be prescribed. Therefore, to avoid the payment of 6% interest p.a. the Central Government, the State Government or the Corporation, in this case GAIL, is duty bound to deposit the amount of compensation so determined by the authorized officer under Section 10(1) as per the award within 21 days of intimation under Rule 4 of Rules, 1963.

10.13 Even in case of inter se disputes qua the amount deposited by the corporation under Section 11(3)once again competent authority is empowered to opine about entitlement of several persons claimed in the amount so deposited and against the determination of such claim if any dispute arises as to the apportionment of the compensation or any part thereof, the dispute shall have to be referred to the District Judge under Section 11(4) by the competent authority and the District Judge's decision shall be final. Meaning thereby Section 10 read with Sections, 4, 4A[1][2], Rules 5 and 6 and Section 11 is complete code for determination and fixation of compensation and deposit and payment of compensation to a person interested in the land so acquired by the Corporation.

10.14 The claimants, who have been deprived of the land for the purpose of right of user, the amount of compensation is to be paid towards loss or damage or any other loss at every stage the claimant is not to take recourse to the proceedings under Article 226 of the Constitution of India in case of unreasonable or prolonged delay either under Section 10(1) or under Section 10(2) of the Act, as the case may be and that is what the proper reading of provisions of Sections 10 and 11 of the Act, 1962 and Rules, 4, 4A, 5 and 6 of the Rules, 1963.

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10.15 The above reasoning will also be in consonance with Scheme of The Land Acquisition Act, 1984, The Railways Act, 1989 and The National Highways Act, 1956 and The Metro Railways [Construction of Works] Act, 1978.

10.16 As per relevant sections reproduced of Land Acquisition Act,, the District Collector is to determine the compensation and to pass award under Section 11 subject to provisions of reference to the competent court having jurisdiction under Section 18 and other procedure to be followed, but section 31 of the Land Acquisition Act clearly mandates the Collector to deposit the amount of award with the court where the reference is made.

10.17 That Section 3G of National Highways Act refers to Determination of amount payable as compensation and the Rules made therein also refer to for determination of amount payable as compensation empowering the competent authority under subsection [1] to determine the compensation and to be paid such an amount. Section 3H provides for Deposit and payment of amount in such a manner as may be provided under rules with the competent authority before taking possession of the land. Rule 2 of the National Highways [Manner of Depositing the amount by the Central Government with the Competent Authority for Acquisition of Land] Rules, 1998 framed in exercise of powers conferred by clause [aa] of subsection [2] of Section 9 of the National Highways Act, 1956 provide the manner of depositing money with the competent authority and such amount shall have to be deposited by the executing agency authorized by the Central Government to deposit the amount determined under Section 3G of the Act and in case the amount determined by the arbitrator in case of an Page 61 of 65 C/SCA/459/2013 CAV JUDGMENT aggrieved party files application under Section 3G[5] of the Act is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded by the Arbitrator within 7 days of such determination or award by the competent authority or by the arbitrator as the case may be, with the competent authority through demand draft. So, initial determination of the amount under Section 3G[1] of the Act is to be determined by the executing agency and within 7 days from the date of such award and/or determination such amount is to be deposited, but in case an aggrieved party prefer an application before the arbitrator when the amount determined by the authority is not acceptable, the excess amount viz. the difference between the amount determined by the competent authority and the arbitrator is to be be deposited within 7 days together with interest which would run from the date of initial award of compensation under subsection [1] of Section 3G.

10.18 Likewise, under Railways Act, 1989, Section 20F provides for determination of amount payable as compensation and subsection [1] of section 20F says where any land acquired under this act, an amount towards compensation has to be determined and to be paid by an order of the competent authority. Subsection [6] of Section 20F provides for preferring application by either of the aggrieved parties if the amount determined by the competent authority under subsection [1] or as the case may be subsection [3] is not acceptable that application be determined by the arbitrator to be appointed by the Central Government in such a manner as may be prescribed. Section 20G is for criterion for determination of market value of land. That provision for deposit and payment of amount is contained in Section 20H, which mandates that amount determined under Section 20F shall be deposited by the Central Government in such a manner as may be Page 62 of 65 C/SCA/459/2013 CAV JUDGMENT prescribed by the Government with the competent authority before taking possession of the land. Subsection [5] of Section 20H is like Rule 2 of the National Highways Rules, which provide that where the amount determined by the arbitrator under section 20F of the Railways Act is in excess of the amount determined by the competent authority, the arbitrator may award interest @9% p.a. on such excess amount from the date of taking possession as provided under Section 20I till the date of actual payment and deposit thereof. Powers to take possession is provided under Section 20I i.e. available to the competent authority only after land has vested into Central Government under subsection [2] of Section 20E and the amount determined by the competent authority under Section 20F with respect to such land has been deposited under subsection [1] of Section 20H.

10.19 Thus, Chapter IVA of the The Railways Act, 1989 is about land acquisition for a special railway project and provisions of Sections 20E, 20F, 20G, 20H and 20I reveal that before taking possession of the vested land the amount determined by the competent authority under Section 20F of the Act has to be deposited, as provided under Section 20H[1] with the competent authority by the Central Government and thereafter only upon issuance of notice to the owner or occupier of the land, possession is to be surrendered or delivered to the competent authority by such person. Subsection [5] of Section 20H of the Railways Act provides that where the amount determined under Section 20F by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent per annum on such excess amount from the date of taking possession under section 20I till the date of actual deposit thereof. Therefore, it is evident that amount determined by the competent authority under Section 20F will have to be deposited and possession can be taken over by the competent Page 63 of 65 C/SCA/459/2013 CAV JUDGMENT authority of such land, but in case if an aggrieved party prefers an application before the arbitrator and the arbitrator enhances the amount of compensation, the interest @9% p.a. on such excess amount would start from the date of taking over the possession of the land.

Thus, in the cases on hand, an aggrieved party may prefer application so provided under Section 10(2) of the Act coupled with Rule 5 of the Rules within 90 days from the receipt of intimation under Rule 4 of the Rules, but the amount so determined even "in the first instance" by the competent authority under subsection [1] of section 10 deposit has to be made within 21 days so provided under Rule 6 of the Rules from the date of intimation under Rule 4[3] of the Rules.

11 Admittedly, in all these petitions, the amount of compensation fixed / determined by the competent authority in exercise of powers under Section 10(1) read with Section 4(3) of the Rules, is not deposited by the respondent - GAIL. It is, therefore, directed that the respondent - GAIL shall deposit the compensation fixed / determined by the competent authority with 6% interest per annum as provided under Section 11(1) of the Act from the date when it actually became due and payable under Section 11(2) and Rule 6 of the Rules and shall pay the amount as soon as possible after the compensation has been deposited, as provided under Section 11(3) of the Act,m 1962.

12 In view of the above, all these petitions succeed and the respondent - GAIL is directed to deposit and pay the amount, as per subject awards dated 28.08.2012 and 18.09.2012 respectively, within a period of 4 weeks from today with interest in terms of Sections 11(2) and 11(3) of the Act, 1962, as stated above. The said amount shall be paid to the petitioners - claimants as soon as possible immediately after Page 64 of 65 C/SCA/459/2013 CAV JUDGMENT the compensation has been deposited, as provided under Section 11(3) of the Act, 1962.

Accordingly, all these petitions are allowed and rule issued in each of the petitions is made absolute to the above extent.

(ANANT S.DAVE, J.) pvv Page 65 of 65

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