Andhra Pradesh High Court - Amravati
Patapanchala Narasimha Rao vs The Union Of India on 22 October, 2020
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
1
NJS,J
W.P.Nos.682, 10069
and 11829 of 2019
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION Nos.682, 10069 and 11829 OF 2019
Between:
Appasani Babu Rao and Others --- Petitioners
And
The Union of India,
Rep. by its Secretary,
Ministry of Petroleum & Chemicals,
New Delhi and another. --- Respondents
DATE OF ORDER PRONOUNCED: 22.10.2020
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their ladyship/Lordship wish Yes/No
to see the fair copy of the Judgment?
______________________
NINALA JAYASURYA, J
2
NJS,J
W.P.Nos.682, 10069
and 11829 of 2019
*THE HON'BLE SRI JUSTICE NINALA JAYASURYA
+ WRIT PETITION Nos.682, 10069 and 11829 OF 2019
%Date : 22.10.2020
Between:
# Appasani Babu Rao and Others --- Petitioners
And
$ The Union of India,
Rep. By its Secretary,
Ministry of Petroleum & Chemicals,
New Delhi and another. --- Respondents
! Counsel for the Petitioners : Sri D.Krishna Murthy
^ Counsel for Respondents : 1) Sri Josyula Bhaskar Rao, learned
counsel for R1
2) Sri Dominic Fernandez, learned
counsel for R2 in W.P.Nos.682 of
2019 & 10069 of 2019
3) Sri G.Rama Gopal,
learned counsel for R2 in
W.P.No.11829 of 2019
< GIST :
> HEAD NOTE :
? Cases referred :
1. (2016) 9 SCC 791
2. (2005) 7 SCC 627
3. (1995) Supp.(1) SCC 596
3
NJS,J
W.P.Nos.682, 10069
and 11829 of 2019
4. (2011) 10 SCC 203
5. (1976) 1 SCC 124
6. AIR 1967 SC 1269
7. (2010) 2 SCC 497
8. (1976) 2 SCC 981
9. (1990) 4 SCC 594
10. (2010) 9 SCC 496
11. (2013) 1 SCC 403
12. (2013) 4 SCC 210
13. (1973) SCC 337
14. (1980) 2 SCC 471
15. (1993) 4 SCC 255
16. (2012) 1 SCC 792
17. (2012) 2 SCC 25
18. (2014) 6 SCC 564
19. (2019) 15 SCC 1
20. (1974) 4 SCC 3
21. (1978) 1 SCC 405
22. (1991) 1 SCC 761
23. (1996) 2 SCC 549
4
NJS,J
W.P.Nos.682, 10069
and 11829 of 2019
HONOURABLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION Nos.682, 10069 and 11829 of 2019
COMMON ORDER:(Heard and pronounced through Blue Jeans App (Virtual) mode, since this mode is adopted on account of prevalence of COVID-19 pandemic)
1. The issues falling for consideration in these three writ petitions arise under the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (hereinafter referred to as "the PMP Act") and involve common points for adjudication. Hence, the same are taken up together and disposed of, by this common order.
W.P.No.682 of 2019 is filed questioning the land acquisition proceedings initiated under the Notification S.O.No.2098 dated 06.09.2017 issued under Section 3(1) of the PMP Act, Order dated 04.01.2018 made under Section 5(2) of the PMP Act and the Declaration dated 11.04.2018 issued under Section 6 (1) of the PMP Act, insofar as the petitioners' lands are concerned, as illegal, arbitrary and violative of provisions of Article 300-A of the Constitution of India.
W.P.No.10069 of 2019 is filed challenging the land acquisition proceedings initiated under Notification S.O.No.2098 dated 06.09.2017 issued under Section 3(1) and all other consequential proceedings under Section 5(2) and Section 6(1) of the PMP Act, insofar as the petitioners' lands are concerned as illegal, arbitrary and violative of provisions of Article 300-A of the Constitution of India and to pass such other orders as deemed fit and proper in the facts and circumstances of the case.
W.P.No.11829 of 2019 is filed challenging the land acquisition proceedings initiated under Notification S.O.No.440 dated 24.03.2019 issued under Section 3(1), Order dated 07.08.2019 made under Section 5(2) and all 5 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 consequential proceedings issued under Section 6(1) of the PMP Act, insofar as the petitioners' lands in Survey No.53/2C of Chevuturu Village are concerned as illegal, arbitrary and in violation of provisions of Articles 14 and 300-A of the Constitution of India and to pass such other orders as deemed fit and proper in the facts and circumstances of the case.
2. Brief facts leading to the filing of the writ petitions may be narrated:
Government of India, in the interest of public undertook transportation of petroleum products from Paradeep in the State of Orissa via State of Andhra Pradesh to Hyderabad, through a pipeline project called Paradeep-Hyderabad pipeline project (hereinafter referred to as 'the Pipeline Project'). In the process of laying the pipelines, the necessity to acquire the right of user in respect of the petitioners' lands under the provisions of the PMP Act arose. Accordingly, a Notification under Section 3(1) of the PMP Act was issued on 06.09.2017 covering different extents of lands of the writ petitioners, situated in the villages of Gaddamanugu, Cheruvumadhavaram, Sunnampadu, Loya, Kavuluru, Munagapadu and Chevuturu in G.Konduru Mandal, Krishna District. All the petitioners are farmers owning different extents of lands in the said villages and eking out their livelihood by cultivating the same. Originally the pipeline alignment was going in a straight line between Konduru village and Indian Oil Corporation Ltd., (IOCL) terminal at Kowluru village as per the peg marking fixed in the year 2016. However, the said notification dated 06.09.2017 was issued by the Central Government expressing its intention to acquire the right of the user in land, with a changed alignment. Subsequently, another Notification under Section 3(1) of the PMP Act, was issued on 24.03.2019 in respect of lands of the writ petitioners in W.P.No.11829 of 2019 situated in Survey No.53/2C of Chevuturu Village.6
NJS,J W.P.Nos.682, 10069 and 11829 of 2019 As per the said notifications, any person interested in the land can file objections before the competent authority under the PMP Act, as laid down in Section 5(1) of the PMP Act. Accordingly, in respect of lands of the petitioners in W.P.No.682 and 10069 of 2019, objections were filed, inter alia, setting out their serious objections to the change of alignment and requested the competent authority to drop the proposed acquisition of right of user in land and to acquire the same as per original straight line alignment. The competent authority/2nd respondent without considering the objections of the petitioners, passed orders dated 04.01.2018 in terms of Section 5(2) of the PMP Act. Further, the 2nd respondent forwarded the report to the Central Government, as contemplated under Section 6(1) of the PMP Act. Thereafter, the Central Government issued declaration under Section 6(1) of the PMP Act vide Gazette notification vide S.O.No.637 dated 11.04.2018, declaring acquisition of right of user in respect of lands of the petitioners in W.P.No.682 and 10069 of 2019 for laying pipeline for the above said 'Pipeline Project'.
Insofar as lands of the petitioners in W.P.No.11829 of 2019 are concerned, after filing of objections in respect of notification under Section 3(1) of the PMP Act dated 06.09.2017, the alignment was changed. A fresh notification was issued on 22.03.2019 and objections to the said notification were submitted. Thereafter, the competent authority passed orders dated 07.08.2019, in terms of Section 5(2) of the PMP Act, without taking the objections of the petitioners in W.P.No.11829 of 2019 into consideration.
Subsequently, a declaration under Section 6(1) of the PMP Act was issued in respect of the lands which are subject matter in the said writ petition.
3. Feeling aggrieved by the above said notifications, orders passed by the 2nd respondent/competent authority and the subsequent declarations, the 7 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 present writ petitions were filed, seeking reliefs, inter alia, to declare the same as illegal, arbitrary and violative of Articles 14, 300-A of the Constitution of India. Pending disposal of the main writ petitions, the petitioners sought interim reliefs by filing interlocutory applications.
Insofar as W.P.No.682 of 2019 is concerned, interim orders were granted on 29.01.2019 which were extended by orders dated 21.11.2019 and 02.01.2020. In W.P.No.10069 of 2019, interim orders were granted on 26.07.2019 and were extended by different orders. In respect of W.P.No.11829 of 2019, interim orders were granted on 26.08.2019 and later extended by different orders. In all these matters, the 2nd respondent filed counter-affidavits along with petitions to vacate the interim orders passed in the respective writ petitions. Reply-affidavits have been filed on behalf of the writ petitioners.
In view of the urgency expressed by the learned counsel for respondent No.2 explaining the importance of the 'Pipeline Project', this Court deemed it appropriate to decide these writ petitions.
Heard Mr. D.Krishna Murthy, learned counsel for petitioners in all the writ petitions, Mr. Dominic Fernandez, learned counsel for respondent No.2 in writ petition No.682 of 2019 and writ petition No.10069 of 2019 and Mr.G.Rama Gopal, learned counsel for respondent No.2 in writ petition No.11829 of 2019 and Sri Josyula Bhaskar Rao, Advocate, representing the Central Government.
4. Before dealing with the rival contentions, it would be appropriate to refer to the relevant provisions of the PMP Act:
Section 2 (a) of the PMP Act deals with "competent authority" - who is a person or authority authorised by the Central Government, by notification in the Official Gazette, to perform all or any of the functions of the competent authority 8 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 under the provisions of the Act, in the same area or different areas specified in the notification.
Section 3 (1) of the PMP Act deals with "Publication of notification for acquisition" - whenever it appears to the Central Government that it 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.
Section 3 (2) of the PMP Act provides that every notification under sub- section (1) shall give a brief description of the land.
Section 3 (3) of the PMP Act contemplates that the competent authority shall cause the substance of the notification to be published at such places and in such manner as may be prescribed.
Section 4 deals with the "Power to enter, survey, etc.," - on issuance of a notification under sub-section (1) of section 3, it shall be lawful for any person authorised by the Central Government or by the State Government or the Corporation which proposes to lay pipelines [or any mineral], and his servants and workmen,
(a) to enter upon and survey and take levels of any land specified in the notification;
(b) to dig or bore into the sub-soil;
(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 pipelines can be laid under the land:9
NJS,J W.P.Nos.682, 10069 and 11829 of 2019 As per proviso to Section 4 while exercising any power under the said section, such person or any servant or workmen of such person shall cause as little damage or injury as possible to such land.
The other important Sections - Section 5, Sections 6 and 7 to the extent relevant for the present context may be extracted for ready reference:
Section 5 deals with "Hearing of Objections".-- (1) Any person interested in the land may, within twenty-one days from the date of the notification under sub-section (1) of section 3, object to the laying of the pipelines under the land.
(2) Every objection under sub-section (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.
Section 6 deals with "Declaration of acquisition of right of user".--(1) Where no objections under sub-section (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 sub-section (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 sub-section (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 that Government] and upon receipt of such report 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 sub-section (1) of section 3, 10 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 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 sub-section (1), the right of user [in the land specified therein] shall vest absolutely in the Central Government free from all encumbrances.
(3) ****************** (4) ****************** Section 7 Central Government or State Government or Corporation to lay pipelines - (1) where the right of user in any land has vested in the Central Government or in any State Government or corporation under section 6--
(i) it shall be lawful for any person authorised by the Central Government or such State Government or corporation as the case may be, and his servants and workmen to enter upon the land and lay pipelines or to do any other act necessary for the laying of pipelines:
Provided that no pipeline shall be laid under--
(a) any land which, immediately before the date of the notification under sub-section (1) of section 3, was used for residential purposes;
(b)***************
(c)***************
(d)************** Section 8 of the PMP Act provides for "Power to enter land for inspection, etc.," - after giving a reasonable notice to the occupier of the land under which the pipelines has been laid, enter therein with such workmen and assistants as may be necessary.
Section 9 stipulates the restrictions regarding the use of land. Section 10 - "compensation" - (1) Where in the exercise of the powers conferred by section 4, section 7 or section 8 by any person, any damage, loss 11 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 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.
Section 10 (2) provides that if the amount of compensation determined by the competent authority under sub-section (1) is not acceptable to either of the parties, the amount of compensation shall, on application by either of the parties to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, be determined by that District Judge.
Section 10 (3) provides that the competent authority or the District Judge while determining the compensation under sub-section (1) or sub-section (2), 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--
(i) the removal of trees of standing crops, if any, on the land while exercising the power 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:
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 sub-section (1) of section 3. Section 10 (4) provides that - 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 sub-section (1), be liable to pay to the owner and to any other person whose right of enjoyment 12 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 in that land has been affected in any manner whatsoever by reason of such vesting, compensation calculated at ten per cent of the market value of that land on the date of the notification under sub-section (1) of section 3.
Section 10 (5) provides that the market value of the land on the said date shall be determined by the competent authority and if the value so determined by that authority is not acceptable to either of the parties, it shall, on application by either of the parties to the District Judge referred to in sub-section (2), be determined by that District Judge.
Section 10 (6) provides that the decision of the District Judge under sub- section (2) or sub-section (5) shall be final.
Section 11 of the PMP Act contemplates Deposit and payment of compensation.
Section 12 is another important section, as per which, the competent authority shall have, for the purposes of this Act, all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) reception of evidence on affidavits;
(d) requisitioning any public record from any court or office;
(e) issuing commission for examination of witnesses.
Section 14 of the PMP Act bars the jurisdiction of civil courts.
Against the background of the above said provisions of the PMP Act, the issues in the present writ petitions are required to be considered.
5. Contentions:
Learned counsel for the petitioners Mr. D.Krishna Murthy, with reference to the averments in W.P.No.682 and 10069 of 2019 raised several contentions, 13 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 inter alia, that the order of the 2nd respondent dated 04.01.2018 under Section 5(2) of the PMP Act, has been passed without considering the objections filed by the petitioners. He submitted that the petitioners pursuant to the notification dated 06.09.2017 filed detailed objections dated 27.11.2017 before the 2nd respondent, inter alia, raising serious objection to the change of alignment stating that in the year 2000 Hindustan Petroleum Corporation Limited and in 2003 Gas Authority of India Limited laid pipelines, if the proposed pipeline is laid along with those pipe lines, there will be minimum loss to the petitioners and the burden of payment of compensation on the Government also will be reduced substantially, that as the pipeline alignment was changed from its original straight line, it encounters bends and curves like a ring road and if the pipeline is laid as per the original straight line alignment fixed by peg marking earlier, expenditure will be less and unnecessary expenditure can be avoided. He submitted that the petitioners in their lengthy objections pointed out that Banjaras (S.Ts) of Cheruvu Madhavaram Village are living just 150 feet away from the proposed pipeline, in the event of any pipeline leakage and fire accident there would be loss of life and property, that there are quarries nearby the proposed pipeline and due to heavy vibrations caused by blasting of the granite, there is every possibility of damage to the pipeline and also severe damage to lives and property, that if the proposed pipeline is laid in the Government land adjoining the Ring road, the distance can be reduced by 30 Kms, Crores of corporation would be saved apart from saving nearly 1000 farmers becoming victims of unnecessary land acquisition and requested that the proposed action may be dropped.
Learned counsel contended that the 2nd respondent passed the order dated 04.01.2018 in a mechanical manner, that except mere reference to the 14 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 objections in the impugned order the same were not examined. While pointing out that no reasons were assigned in the order with reference to the several objections raised and that the concluding para is stereo type, he strenuously contended that the order of the 2nd respondent is lacking in objective consideration of the objections raised and suffers from non-application of mind. The learned counsel while emphasising that the powers exercised by the competent authority under Section 5 (2) of the PMP Act are akin to Section 5-A of the Land Acquisition Act, 1894 and as there is a gross failure on the part of the 2nd respondent in passing a reasoned order after due consideration of the objections, submitted that the impugned order and the Declaration under Section 6(1) of the PMP Act issued pursuant to the said orders are liable to be set aside. He urged that the impugned order is liable to be set aside on the sole ground of non-consideration of the objections raised by the petitioners. He further submitted that the 2nd respondent has no competence to act as competent authority and as such the order passed by him is vitiated. The learned counsel submitted that the deponent of the counter-affidavit who is a Tahsildar in Revenue Department on deputation functioned as the competent authority and as per the observations of the Hon'ble Supreme Court in Laljibhai Kadvabhai Savaliya and others v. State of Gujarat1, the competent authority should be a Judicial officer not below the rank of a Sub-ordinate Judge. He contended that in the light of observations of the Hon'ble Supreme Court, the appointment of the Tahsildar as competent authority is bad. He vehemently contended that the 2nd respondent acted with mala fides, under the influence of interested persons and to benefit them the original alignment as fixed in the year 2016 by peg marking has been changed. He further urged that due to omissions and commissions on the part of the competent authority/2nd 1 (2016) 9 SCC 791 15 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 respondent, the lives of the petitioners/farmers are at stakes, as they cannot raise crops in their lands.
While referring to the sketch filed in the material papers, the learned counsel submitted that originally the pipeline alignment as per the peg marking was going like a straight line between Konduru village and IOCL terminal at Kowluru village and no lands of the petitioners were in the said alignment fixed by peg marking. However, due to change of alignment at the behest of influential persons, the alignment was changed and as a result of which, the petitioners' lands are affected. The learned counsel further submitted that due to change of alignment, the pipeline took a long deep curve, not only increasing the distance by 30 kilometres, but also incurring huge expenditure. He contended that the order of the 2nd respondent is vitiated by mala fides, violation of principles of natural justice and settled legal principles.
6. In addition to the above contentions, insofar as the writ petition No.11829 of 2019 is concerned, learned counsel for the petitioners further urged that after issuance of declaration, dated 11.04.2018 under Section 6(1) of the PMP Act covering small extents of lands of the petitioners in Survey No.53/2C of Chevuturu village, no action was taken. He submitted that subsequently another notification was issued on 22.03.2019 under Section 3(1) of the PMP Act, changing the alignment, as a result of which the pipeline alignment goes through the middle of the petitioners' lands rendering the whole land useless. He contended that at the instance of land owners/real estate developers of Sy.No.72/2 and 72/3 of Chevuturu village that a housing layout was made, the alignment was changed and as a consequence to the change of alignment, the said notification dated 22.03.2019 was issued. He submitted that objections were filed on 24.05.2019 setting out, inter alia, that by virtue of the first 16 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 notification dated 06.09.2017 only small extents of Ac.0.26 cents in the corner bit of lands would be affected, however, in view of the change in the alignment, it passes through the centre of the petitioners' lands and thereby they would lose lands to the extent of Ac.1.09 cents, and would be deprived of raising crops. He further submitted that in fact some of the petitioners requested change of alignment by one meter, so that their bore well would not fall within the pipeline alignment, but the 2nd respondent did not accede to the same. Whereas, the 2nd respondent changed the alignment at the behest of owners of lands in Survey No.72/2 and 72/3 on the ground that a lay out was made. Learned counsel submitted that, it is a proof positive that the 2nd respondent acted with mala fides to benefit them.
Learned counsel also contended that change of alignment at the behest of real-estate developers/owners on the ground that a layout is made, is not tenable. He further pointed out that under proviso (a) to Section 7(1)(i) of the PMP Act, the pipeline cannot be laid under any land which immediately before the date of notification under Section 3(1) of the PMP Act is used for residential purpose and contended that no such situation attracting the said proviso exists, as there is no human habitation in the said lands and in fact as on 06.09.2017, no approval was accorded to the residential lay out by the concerned authority.
He submitted that even in the present case also there is no consideration of the objections of the petitioners objectively, except referring to the same and an order dated 07.08.2019, the conclusions of which are stereo type, was passed and the same is unsustainable for the very same reasons urged in the other cases.
17
NJS,J W.P.Nos.682, 10069 and 11829 of 2019 Learned counsel while reiterating that as the orders of the 2nd respondent are vitiated on the grounds of non-consideration of objections, incompetency and mala fide action, submitted that the whole proceedings in respect of lands in W.P.No.11829 of 2019 are also liable to be quashed. He submitted that the counter-affidavit of respondent No.1 is required and non filing of the counter-affidavit amounts to admission of the statements made in the writ petitions. He further submitted that in the event the Central Government needs time to file counter-affidavits, I.As., may be disposed of.
Learned counsel for the petitioners in support of his contentions relied on the Judgments of Hon'ble Supreme Court in Laljibhai's case (referred to supra), Hindustan Petroleum Corporation Ltd., v. Darius Shapur Chenai & Ors2 and a Division Bench decision of the erstwhile common High Court of Andhra Pradesh in Writ Appeal No.1586 of 2017, dated 06.12.2017.
7. Per contra, Mr. Dominic Fernandez, appearing for the 2nd respondent submitted that detailed counter-affidavits have been filed duly adverting to the contentions raised by the petitioners. The learned counsel while pointing out that all the petitioners have not filed their objections, submitted that the lands of the petitioners are not acquired in entirety and the acquisition is only limited to the extent of right to use and the lands would be returned to the petitioners after laying of the pipeline, that the petitioners can as well raise crops continuously, but however cannot grow large trees etc., While referring to the various provisions of the PMP Act, he urged that the competent authority, in view of the importance of laying of pipelines for the project in question which is of national importance and involving larger public interest, is not required to pass detailed order by meeting each and every objection of the land owners and 2 (2005) 7 SCC 627 18 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 strict compliance to principles of natural justice is not required. He further submitted that there was no original alignment of pipeline in 2016 as contended by the petitioners, a feasibility survey was conducted by the agency appointed by the Central Government/IOCL to find out best possible route to minimize crop damage and the route which causes least damage to the land/crops was selected for laying pipeline. The learned counsel while contending that the petitioners were under misconception that the peg marking allegedly fixed is the original alignment, submitted that the same is not indicative of final alignment before publication of notification under Section 3(1) of the PMP Act. He further contended that only after publication of notification in terms of Section 3(1) of the PMP Act, the intention to acquire the right of user of land would come into force and peg marking, if any, prior to issuance of notice under Section 3(1) of the PMP Act is of no consequence. The learned counsel contended that Section 5 of the PMP Act contemplates raising of objections, hearing of the same and passing of order which is final. Further, Act does not contemplate an appeal against the order under Section 5(2) of the PMP Act, which is subject to the satisfaction of the Central Government only. Therefore, the challenge to the same is not tenable since what cannot be done directly, cannot be done indirectly. He contended that the recommendations of the competent authority along with the record were sent to the Central Government by the competent authority and on being satisfied with the material on record as also the orders passed by the competent authority, the Central Government issued the consequential Declaration under Section 6(1) of the PMP Act. Under the said circumstances, the learned counsel submitted that there is no procedural irregularity or infirmity which warrants the quashing of the proceedings impugned in the writ petitions. He contended that recording of reasons in the order by the competent authority is not required and by placing reliance on the 19 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 judgment in Hindustan Petroleum's case referred to supra and submitted that it is sufficient if the reasons are available on record. Learned counsel also pointed out that the PMP Act provides for payment of compensation, if the petitioners are aggrieved by the determination of compensation by the competent authority, they can as well seek further determination/enhancement by the competent District Judge.
8. The learned counsel for the respondent No.2 while emphatically denying the contentions raised with regard to the competency of the 2nd respondent further submitted that the same are not just or tenable. Referring to Section 5 (2) of the PMP Act, he submitted that the PMP Act contemplates hearing of objections and in that regard the 2nd respondent/competent authority is possessing the experience and qualifications and that the Central Government after due consideration of the same appointed him as competent authority. While submitting that the competent authority cannot be expected to pass an order like a Judicial Officer, nor the PMP Act require passing of an order on the lines of a Court, the learned counsel contended that it would suffice, the order reflects the points raised. The learned counsel with regard to the competency of the 2nd respondent placed reliance on the Judgment of a learned Single Judge of erstwhile Common High Court in W.P.No.508 of 2018 dated 20.03.2018 and submitted that similar contentions like in the present case were rejected. With regard to the contentions attributing mala fides to the 2nd respondent, learned counsel submitted that the 2nd respondent is not an officer of IOCL, but a person appointed by the Central Government and no motive can be attributed to him. He further urged that the fixation of alignment is a technical aspect which is beyond the purview of the competent authority and is within the domain of the Central Government/Oil Corporation. As the 2nd respondent has no role to play, 20 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 the learned counsel submitted that, the allegation that the alignment was changed by the 2nd respondent to favour the third parties deserves to be rejected.
9. The learned counsel distinguished the judgments relied on by the learned counsel for the petitioners contending that the same are not applicable to the facts of the present cases, that in Writ Appeal No.1586 of 2017, pursuant to publication under Section 3 of the PMP Act, objections were called for under Section 5 and even before the stipulated time for filing objections elapsed, Section 6(1) Notification was issued and no opportunity of personal hearing was afforded. He also contended that Section 5(2) order is not under challenge in the said matter and after ultimate analysis of the issues, the Hon'ble Court set aside the declaration under section 6(1) of the PMP Act, insofar as the petitioners therein are concerned and directed the authorities to afford opportunity of personal hearing to put forth oral objections. In the present case, he submitted that the petitioners were afforded an opportunity to file objections and were heard, as such there is no statutory or other violations. Insofar as the judgment in Laljibhai's case relied on behalf of the petitioners referred to supra, the learned counsel submitted that in the said judgment, the Hon'ble Supreme Court has taken cognizance of laying pipeline, did not set aside the orders and expressed its views that under the Petroleum and Minerals Pipelines Act, competent authority must be someone who is holding or has held a Judicial Office not lower in the rank than that of a subordinate judge or is a trained legal mind. In this context, the learned counsel submitted that the 2nd respondent is fully qualified and eligible to function as competent authority. He referred to the contents of the counter-affidavit with regard to the qualifications, experience of the 2nd respondent and emphatically submitted that the 2nd respondent 21 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 discharged his functions within the statutory frame work. With all vehemence, he contended that the allegations made against the 2nd respondent are baseless, without any substance and deserves to be rejected. The learned counsel also submitted that the lands of all the petitioners are not falling in the route/alignment of pipeline, that some of the petitioners recently took compensation and that some of the petitioners filed objections, but did not appear for personal hearing.
Learned counsel while emphasising that the 'Pipeline Project' in question is of great public interest and completed in almost all the stretches, except in the lands which are subject matter of the present writ petitions by virtue of the interim orders granted by this Court, stated that at this stage, if for any reason, a direction is issued to change the alignment, it would not only delay the Project, but also result in huge expenditure. The learned counsel accordingly prayed to vacate the interim orders and to dismiss the writ petitions.
10. Insofar as W.P.No.11829 of 2019 is concerned, the learned counsel Mr.G.Ramgopal while supporting the arguments advanced on behalf of the 2nd respondent in W.P.No.682 and 10069 of 2019, made further submissions by referring to various provisions of the PMP Act. The learned counsel submitted that the publication of notification for acquisition under Section 3(1) of the PMP Act is not final and it is only an intention to acquire the right of user of the land and it is not acquisition of entire land. The learned counsel submitted that on receipt of objections under Section 5(1) of the PMP Act, the competent authority may allow or reject the objections and as the competent authority has to deal with objections of not only petitioners but also several farmers, it would not be possible nor was there necessity to pass orders with elaborate reasons. With regard to issuance of subsequent publication for acquisition dated 22.03.2019 is 22 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 concerned, the learned counsel submitted that objections were filed in respect of lands in Survey No.72/2 and 72/3 of Chevuturu Village pursuant to initial notification dated 06.09.2017 that plots were sold in the said Survey Nos. While referring to Para No.14 of the counter-affidavit, the learned counsel further submitted that as many as 60 sale transactions were registered in between 10.05.2017 to 29.07.2017 as per the statistics obtained from the concerned Sub- Registrar indicating that the land is used for residential purposes and in terms of Section 7 of the PMP Act, the proposed acquisition for right to use in respect of the lands in the said Survey Numbers was dropped. He submitted that in view of the same, another publication was issued on 22.03.2019 whereby intention to acquire right to use in respect of Ac.1.09 cents in Survey No.53/2C was indicated and therefore the allegations of mala fides made against the competent authority/2nd respondent are without valid basis and untenable.
11. With regard to the contention of the learned counsel for the petitioners that the competent authority has not exercised its power to consider the objections and the order is not reasoned one, he submitted that personal hearing to the petitioners who raised objections was afforded and thereafter order dated 07.08.2019 was passed. He contended that the competent authority/2nd respondent took note of the objections, arrived at some decision and it amounts to sufficient compliance with principles of natural justice. Further, the order of the competent authority may not be visualized or expected to be on par with an order passed by a Judicial Officer in a Civil proceeding. While referring to the judgment of Hon'ble Supreme Court in Hindustan Petroleum's case, referred to supra, the learned counsel also submitted that if the material is available on record, the same is sufficient and that the competent authority/2nd respondent meticulously noted the contents of objections in the 23 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 order and explanation furnished by the Oil Company to the objections was enclosed to the order as is evident from reference No.7 in the impugned order dated 07.08.2019. The learned counsel submitted that the competent authority being a quasi judicial authority considered and rejected the objections by exercising his jurisdiction. While supporting the arguments advanced by the learned counsel for the 2nd respondent in W.P.No.682 of 2019, with regard to fixing of peg marks in 2016 and qualifications of the competent authority, the learned counsel submitted that the contentions contra are untenable. The learned counsel submitted that fixation of peg marks, if any, would be of no consequence, in as much as only on publication of notification under Section 3(1) of the PMP Act, the intention to acquire right of user comes into effect. While referring to Page No.10 of the counter-affidavit with regard to the eligibility, competency of the 2nd respondent, he reiterated the submissions made by Mr.Dominic Fernandez and also placed reliance on the orders passed in W.P.No.508 of 2018 dated 20.03.2018. The learned counsel while pointing out that the 'Pipeline Project' is of national importance passing through three (3) States with a length of about 1212 kms., further submitted that as per his instructions, laying of pipeline is more or less completed, except in the lands which are subject matter of the present writ petitions. He further urged that at this stage, if the land acquisition proceedings are set aside, alignment of the pipeline has to be changed and re-routed by dismantling the pipeline already laid at some places which would not only delay the project further, but also incur huge expenditure.
The learned counsel also submitted that being a statutory authority, the 2nd respondent/competent authority discharged his duties as per Law and no mala fides can be attributed to him. He further contended that in view of conversion of use of land as per the orders of the RDO and sale transactions, 24 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 the competent authority/2nd respondent in terms of the Section 7 of the PMP Act had taken a view that the said land in Survey No.72/2 and 72/3 requires to be exempted, but not at the behest of real estate owners as alleged. He also reiterated that the writ petitioners are not remediless, they can claim compensation and that if they are not satisfied, they can seek enhancement by filing appropriate applications before the concerned District Judge in terms of Section 10(2) of the PMP Act and sought for dismissal of the writ petitions.
12. Sri Josyula Bhaskararao, learned counsel appearing for Central Government while supporting the submissions made by the learned counsel representing the 2nd respondent contended that there is no illegality or infirmity in the proceedings impugned in the writ petition. He submitted that the procedure contemplated under the PMP Act was scrupulously followed. While referring to the relevant Gazette Notifications issued by the Government of India dated 11.04.2018 declaring the acquisition of right of user under Section 6(1) of the PMP Act, the learned counsel submitted that on receipt of the report from the competent authority in terms of Section 6(1) of the PMP Act, the Central Government considered the same and on being satisfied that the said lands are required for laying the pipeline, had decided to acquire the right of user in the lands in question. The learned counsel while refuting the contention that non- filing of counter-affidavit would amount to admission of averments in the writ petitions, submitted that in view of the legal issues and urgency with regard to Pipeline Project having national interest, the matters may be decided. The learned counsel also urged that the reliefs as sought for by the petitioners may be rejected, as it would delay the Pipeline Project, which is of great public importance.
25
NJS,J W.P.Nos.682, 10069 and 11829 of 2019
13. Adverting to the contentions raised by the learned counsel representing the respondents, in reply, the petitioners' counsel submitted that even assuming that the order passed by the 2nd respondent is final and cannot be questioned, the decision making process can be challenged, in which event, the orders can be set aside in exercise of powers under the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The learned counsel reiterated that objections filed by the petitioners were not considered objectively and by due application of mind, as is evident from the fact that last para of the orders dated 04.01.2018 and 07.08.2019 are verbatim same and that itself would make it clear that the 2nd respondent have passed the orders in a casual manner without applying its mind to the objections. He further contended that enclosing explanation of the oil company to the objections raised by the petitioners/land owners to the orders under section 5(2) of the PMP Act, would not absolve the 2nd respondent of his statutory duties and dispense with passing of a reasoned order. The learned counsel contended that mere reference to objections in the order is not sufficient and will not validate the order. He further submitted that a duty is cast upon the 2nd respondent to advert to the objections raised by the petitioners/land owners and pass a speaking order. The learned counsel also contended that the proceedings under Section 5 of the PMP Act is the only stage wherein the land owners get protection in respect of their lands by filing objections and seek exemption from acquisition. Therefore, their rights under Section 5(2) of the PMP Act like that of Section 5-A of the Land Acquisition Act, are akin to a Fundamental Right, hence the objections are required to be dealt with in an objective manner, but not casually. He contended that the very objection of the farmers that change of alignment would cause huge expenditure, has not been looked into, let alone an objective consideration of the same. He further submitted that the respondents have 26 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 taken the risk of laying pipeline and cannot seek indulgence of this Court, at the cost of the petitioners' rights. The learned counsel also submitted that the order should contain the reasons and they cannot be substituted/explained by way of counter-affidavit nor can it be contended that the record contains the same.
Concluding his arguments, the learned counsel for the petitioners urged that the impugned proceedings are liable to be set aside and sought for directions accordingly.
14. From the elaborate submissions of both sides, the following points emerge for consideration by this Court:
1) What is nature of the functions being discharged by the competent authority under Section 5 of the PMP Act?
2) Whether the competent authority is required to pass a reasoned order by considering the objections objectively?
3) Whether the provisions of Section 5 of PMP Act are akin to Section 5-A of the Land Acquisition Act, 1894?
4) Whether non-consideration of the objections objectively constitutes non-compliance with the provisions and vitiates the proceedings under Section 6 of the PMP Act ?
5) Whether the impugned proceedings are liable to be set aside on the ground of alleged mala fides attributed to the 2nd respondent/competent authority?
6) Whether the competent authority is qualified and competent to deal with the acquisition proceedings in the present cases?
7) To what relief?27
NJS,J W.P.Nos.682, 10069 and 11829 of 2019 Point No.1 :
Apropos Point No.1, the functions/duties of the competent authority under Section 5 and 6 of the PMP Act may be summarized for better understanding of the same:
a) Competent authority shall give the objector who submitted objections under Section 5(1) of PMP Act, an opportunity of being heard either in person or by a legal practitioner.
b) After hearing all such objections and after making further enquiry, if any, if thinks necessary, by order(emphasis supplied) either allow or disallow the objections.
c) Shall make a report in respect of the land described in the notification under Section 3(1) of PMP Act to the Central Government containing his recommendations on the objections(emphasis supplied), together with the record of proceedings held by him, for the decision of the Central Government.
Thus, a conjoint reading of the provisions of Sections 5 and 6 of PMP Act, would categorically show that the Legislature attached much importance to the objections in respect of the acquisition of right of user in land. The reason is obvious - the owner of the land would be deprived of using his land, be it partially. The holistic intent of Legislature is that since the rights of the lawful owner are getting affected, his objections have to be heard. Therefore, the avowed object of affording an opportunity to file objections and hearing of the same by the competent authority in person or through a legal practitioner undoubtedly is to provide the land owner a leeway to persuade the competent authority that the proposal for acquisition of right of user in respect of his lands may be dropped. In such an event, what is that competent authority required to do in Law, what is the nature of functions being discharged by him? 28
NJS,J W.P.Nos.682, 10069 and 11829 of 2019 As is evident from Section 5 and 6 of the PMP Act, the functions of the competent authority are multi-faceted. He is required to receive the objections, hear the objector in person or through a legal practitioner, pass an order and submit a report containing his recommendations on the objections. As stated above, Legislature has entrusted him with the function of hearing the objections with regard to the lands of the parties whose rights are getting affected due to the proposed acquisition of right of user in the land. Article 300-A of the Constitution of India contemplates that no person shall be deprived of his property, save by authority of Law. The Hon'ble Supreme Court in Jilubhai Nanbhai Khachar v. State of Gujarat3 held that;
"....the term "property" in legal sense means of an aggregate of rights which are guaranteed and protected by law and would extend to entirety or group of rights inhering in a person."
In the said judgment, the Hon'ble Supreme Court at Para No.42 observed as follows:
"42. Property in legal sense means an aggregate of rights which are guaranteed and protected by law. It extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of the thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property. The exclusive right of possessing, enjoying and disposing of a thing is property in legal parameters. Therefore, the word "property" connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status. Property, therefore, within the constitutional protection, denotes 3 (1995) Supp.(1) SCC 596 29 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 group of rights inhering citizen's relation to physical thing, as right to possess, use and dispose of it in accordance with law. In Ramanatha Aiyar's The Law Lexicon. Reprint Edn., 1987, at P.1031, it is stated that the property is the most comprehensive of all terms which can be used, in as much as it is indicative and descriptive of every possible interest which the party can have. The term "property" has a most extensive signification, and, according to its legal definition, consists in free use, enjoyment, and disposition by a person of all his acquisitions, without any control or diminution, save only by the laws of the land.
Keeping the above said judgment in view, the Hon'ble Supreme Court in Laljibhai's case referred to above, proceeded to decide the said case on the premise that "the right of user sought to be taken over under the provisions of the PMP Act amounts to acquisition of one of the facets of property rights which inhere in the owner/occupier." The very fact that the legislature had incorporated provisions for filing of objections, hearing of the same and submitting the recommendations on the objections to the Central Government in respect of the lands, wherein right to user in the land is sought to be acquired would make it doubly clear that the property rights of the land owners have to be dealt with strictly in accordance with the provisions of PMP Act and other established principles of law. In this regard, it would be appropriate to refer to the expression of the Hon'ble Supreme Court in Laljibhai's case referred to supra, wherein at Para No.29, it was held as follows:
"29. It is thus clear that "competent authority" is given wide ranging powers under Section 5 for considering the objections, under Section 6 for making the report to the Central Government and under Section 10 for determining compensation for damage/loss or injury under the first part of the section and to determine the market value under the second part of the section. By virtue of these powers, crucial rights of the persons interested in the land are bound to be affected. His orders and 30 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 report would certainly deal with variety of civil rights of the interested persons and issues pertaining to compensation."
At this juncture, it is also trite to mention here that where an authority appointed under the provisions of an enactment is conferred with the jurisdiction to deal with the rights of a party, such functions are quasi judicial in nature having been embedded with the trappings of Court of Law.
The Hon'ble Supreme Court while interpreting the provisions of the PMP Act in Trilok Sudhirbai Pandya v. Union of India and Others4, inter alia, held that;
".......the competent authority has got vast powers, which affects the rights of persons interested in the land over which the pipeline is to be laid and on the reports of the competent authority, the Central Government and the State Government are to take decisions affecting the rights of persons interested in the land. Under the provisions of the Act, therefore, the competent authority does not merely determine the compensation at the first instance in accordance with the statutory rules as has been contended by the learned counsel for respondent 4, but has to perform various other quasi-judicial functions which are normally performed by public servants whose pay, allowances and other incidentals of service are met out of the public exchequer."
Therefore, the functions and duties of the competent authority/2nd respondent under Section 5 of the PMP Act are essentially quasi judicial in nature. Accordingly, Point No.1 is answered.
Point No.2:
With reference to point No.2, it is axiomatic to state that it is settled law that the authorities discharging the quasi-judicial functions are bound by the principles of natural justice. They have to act fairly, reasonably and judiciously. 4 (2011) 10 SCC 203 31 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 Being a quasi judicial authority, the 2nd respondent is required to follow the principles of natural justice. A three Judge Bench of the Hon'ble Supreme Court in one of its judgments held that "observance of the principles of natural justice is fundamental to the discharge of quasi judicial functions and that such is the requirement of law even where the statute in question itself does not so provide (See: City Corner v. Personal Assistant to Collector & Additional District Magistrate, Nellore5).
The Hon'ble Supreme Court as long back as in 1967 held as follows:
"The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with the authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed : it need not be shown to be super-added. If there is power to decide and determine the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case." (See: State of Orissa v. Dr.(Miss) Binapani Dei and Ors.,6). The Hon'ble Supreme Court in G.Valli Kumari v. Andhra Education Society7, held at Para No.19 that;
".......requirement of recording reasons by every quasi judicial or even administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the 5 (1976) 1 SCC 124 6 AIR 1967 SC 1269 7 (2010) 2 SCC 497 32 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 effected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authorities concerned."
In Seimens Engg. & Mfg., Co. of India Ltd., v. Union of India8, the Hon'ble Supreme Court held that;
"........it is far too well settled that an authority in making an order in exercise of quasi judicial function, must record reasons in support of the order, it makes and every quasi judicial order must be supported by reasons. The rule requiring reasons in support of a quasi judicial order is, as basic as following the principles of natural justice. And the rule must be observed in its proper spirit. A mere pretence of compliance would not satisfy the requirement of law."
A Constitutional Bench of the Hon'ble Supreme Court while discussing the object and basic principles of natural justice in S.N.Mukherjee v. Union of India9, inter alia, held that:
"The authority exercising quasi judicial function must record reasons for its decisions irrespective of whether the decision is subject to appeal, revision or judicial review. It is not required that the reasons should be as elaborate as in the decision of a Court of Law. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy."
The Hon'ble Apex Court while referring to the legal position set out in various judicial pronouncements held that :
"The requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities."
8
(1976) 2 SCC 981 9 (1990) 4 SCC 594 33 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 The Hon'ble Supreme Court in Kranthi Associates Pvt. Ltd., v. Masood Ahmedkhan and Others10, at para No.15 observed that;
"......face of an order passed by a quasi judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the inscrutable face of sphinx".
In the above said case, the Hon'ble Supreme Court after referring to a catena of Judgments, held that:
"Reasons have virtually become as indispensible a component of decision making process as observing principles of natural justice by judicial, quasi judicial and even by administrative bodies."
The Hon'ble Supreme Court while summarising the principles with regard to recording of reasons by the quasi judicial as well as administrative authorities observed thus:
"........that insistence on recording of reasons is meant to serve the wider principles that justice must not only be done, it must also appear to be done."
In view of the above settled legal principles, the competent authority/2nd respondent has to pass a reasoned order by considering the objections raised by the respective land owners.
It may not be out of place to state here that the object of giving personal hearing to the objector is to enable him to ventilate his grievance/objections and upon hearing such objections and after making such further enquiry, if any, the competent authority would submit a proper and effective report containing the recommendations on the objections. Though he is not the ultimate authority, but his views/recommendations after consideration of the objections would enable the Central Government to review its intention to acquire the right of user of 10 (2010) 9 SCC 496 34 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 lands, in a given case. Therefore, receiving of objections and hearing of the same is not a mere formality or an eye wash. Further, the PMP Act contemplates passing of an order either allowing or disallowing the objections, followed by submission of a report/s containing the recommendations on the objections to the Central Government. The order of the competent authority/2nd respondent passed under Section 5 (2) of the PMP Act thus forms the basis for examination of the recommendations of the competent authority. Unless, there is objective consideration by discussing the objections of the land owners and recording conclusions thereon, the Central Government would not have the opportunity or occasion to examine the order under Section 5(2) of the PMP Act in a correct perspective and take a final decision in its wisdom. Though the competent authority may not prevail over the Central Government/Oil company to change the alignment of pipeline, but his objective consideration of objections and recommendations thereon would give scope to the Central Government/Oil company to review their proposals with regard to alignment of pipeline. It may be pertinent to mention here that the underlying object in appointing the competent authority with the legal background appears to be that his legal acumen would enable him to deal with the objections and pass an order judiciously. The 2nd respondent/competent authority is not a receiving and forwarding agent, but mandated to hear the objections, cause a further enquiry upon hearing them, if necessary and pass an order thereafter either allowing or disallowing the objections. Further Section 5(3) of the PMP Act envisages that the order passed by the competent authority shall be final. Therefore, the competent authority/2nd respondent is all the more under an obligation to consider the objections objectively and draw conclusions from them, so as to provide the basis for further action by the Central Government, which he miserably failed to adhere. Non-consideration of the objections is fatal and 35 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 amounts to statutory violation. In the present case, the orders passed by the 2nd respondent are not only violative of principles of natural justice, but also contrary to statutory provisions of the PMP Act.
Point No.2 is answered accordingly and the contentions of the learned counsel for the petitioners in this regard are upheld. Point No.3:
One of the contentions raised by the learned counsel for the petitioners is that Section 5 of the PMP Act is akin to Section 5-A of the Land Acquisition Act.
The provisions of Section 5 of the PMP Act are similar to Section 5-A of the Land Acquisition Act, even though the provisions of PMP Act deals with partial acquisition i.e., right to user of land unlike total acquisition of land under the Land Acquisition Act. Section 5 of the PMP Act confers a valuable right in favour of a person whose lands are getting affected on acquisition of right of user of land to file objections, which is similar to Section 5-A of the Land Acquisition Act. Both the said enactments i.e., the PMP Act and the Land Acquisition Act under Section 5(2) and Section 5-A(2) respectively contemplates an opportunity of hearing to the objector. Section 5(2) contemplates passing of an order after hearing all the objections. Section 5-A(2) postulates submission of report after hearing objections to the appropriate Government containing the recommendations on the objections along with the record of proceedings for decision of the Government. Similar exercise is mandated under Section 6 of the PMP Act to be complied with by the competent authority.
The Hon'ble Supreme Court in Hindustan Petroleum's case referred to above, opined that Section 5-A of the Land Acquisition Act confers a valuable 36 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 important right and having regard to the provisions contained in Article 300-A of the Constitution of India, it has been held to be akin to a fundamental right.
In Surinder Singh Brar v. Union of India11, the Hon'ble Supreme Court held thus:
"84. What needs to be emphasised is that hearing required to be given under Section 5-A(2) to a person who is sought to be deprived of his land and who has filed objections under Section 5-A(1) must be effective and not an empty formality. The Collector who is enjoined with the task of hearing the objectors has the freedom of making further enquiry as he may think necessary. In either eventuality, he has to make report in respect of the land notified under Section 4(1) or make different reports in respect of different parcels of such land to the appropriate Government containing his recommendations on the objections and submit the same to the appropriate Government along with the record of proceedings held by him for the latter's decision."
Section 5-A of the Land Acquisition Act has been interpreted by the Hon'ble Supreme Court in a catena of cases. A three Judge Bench of Hon'ble Supreme Court in M/s.Usha Stud & Agricultural Farms (P) Ltd., & Anr. vs. State of Haryana & Ors.12, while referring to the earlier precedents in Munshi Singh & Ors v. Union of India13, State of Punjab v. Gurdial Singh & Ors.14, Shyam Nandan Prasad & Ors. v. State of Bihar & Ors.15, Raghbir Singh Sehrawat v. State of Haryana & Ors.16, etc., was pleased to hold that "Section 5-A (2) of the Land Acquisition Act, makes it obligatory for the Collector to submit report(s) to the appropriate Government containing his 11 (2013) 1 SCC 403 12 (2013) 4 SCC 210 13 (1973) SCC 337 14 (1980) 2 SCC 471 15 (1993) 4 SCC 255 16 (2012) 1 SCC 792 37 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 recommendations on the objections, together with the record of the proceedings held by him, so that the Government may take appropriate decision on the objections". In this regard, it may be apposite to refer to the relevant portion of the judgment in Raghbir Singh Sehrawat's case referred to supra, by the Hon'ble Supreme Court in M/s.Usha Stud & Agricultural Farms (P) Ltd., referred to supra, arriving at the conclusions as extracted at para No.28 of the said judgment as follows:
"39. In this context, it is necessary to remember that the rules of natural justice have been ingrained in the scheme of Section 5-A with a view to ensure that before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the State Government and/or its agencies/instrumentalities to acquire the particular parcel of land. At the hearing, the objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land. He can also point out that the land proposed to be acquired is not suitable for the purpose specified in the notification issued under Section 4(1). Not only this, he can produce evidence to show that another piece of land is available and the same can be utilized for execution of the particular project or scheme.
40. Though it is neither possible nor desirable to make a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land, but what is important is that the Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land. Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the land owners and other interested persons."38
NJS,J W.P.Nos.682, 10069 and 11829 of 2019 The relevant portion of the Judgment in Kamal Trading Pvt. Ltd., v. State of West Bengal17, as extracted at para 29 in M/s.Usha Stud's case reads thus:
"15.Hearing contemplated under Section 5-A(2) is necessary to enable the Collector to deal effectively with the objections raised against the proposed acquisition and make a report. The report of the Collector referred to in this provision is not an empty formality because it is required to be placed before the appropriate Government together with the Collector's recommendations and the record of the case. It is only upon receipt of the said report that the Government can take a final decision on the objections. It is pertinent to note that declaration under Section 6 has to be made only after the appropriate Government is satisfied on the consideration of the report, if any, made by the Collector under Section 5-A(2). As said by this Court in Hindustan Petroleum Corpn. Ltd., v. Darius Shapur Chennai, (2005) 7 SCC 627, the appropriate Government while issuing declaration under Section 6 of the LA Act is required to apply its mind not only to the objections filed by the owner of the land in question, but also to the report which is submitted by the Collector upon making such further inquiry thereon as he thinks necessary and also the recommendations made by him in that behalf.
16. Sub-Section (3) of Section 6 of the L.A.Act makes a declaration under Section 6 conclusive evidence that the land is needed for a public purpose. Formation of opinion by the appropriate Government as regards the public purpose must be preceded by application of mind as regards considerations of relevant factors and rejection of irrelevant ones. It is, therefore, that the hearing contemplated under Section 5-A and the report made by the Land Acquisition Officer and his recommendations assume importance. It is implicit in this provision that before making declaration under Section 6 of the LA Act, the State Government must have the benefit of a report containing recommendations of the Collector submitted under Section 5-A(2) of the L.A.Act. The recommendations must indicate objective application of mind."
17 (2012) 2 SCC 25 39 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 In another Judgment of a three Judge Bench, the Hon'ble Supreme Court in Union of India & Ors. v. Shiv Raj & Ors., etc.,18 reiterated that:
"The Land Acquisition Collector is duty bound to objectively consider the arguments advanced by the objector and make recommendations, duly supported by brief reasons, as to why the particular piece of land should or should not be acquired and whether the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Land Acquisition Collector should reflect objective application of mind to the entire record, including the objections filed by the interested persons."
Thus, in view of the authoritative pronouncements of the Hon'ble Supreme Court, the authority mandated to discharge functions under Section 5- A of Land Acquisition Act is required to pass a reasoned order and submit the report/recommendations reflecting/objective application of mind to the objections raised by the concerned land owner. Though the provisions of PMP Act deals with the limited extent of acquisition of land viz., right of user of land, Section 5 of the PMP Act stands on the same footing as that of Section 5-A of the Land Acquisition Act, in as much as the rights of land owner whose lands are sought to be acquired would be affected and there would be deprivation of his rights, even by virtue of limited acquisition of right of user.
Therefore, in view of the similarity of the provisions as also similar obligations cast upon the respective authorities under the two enactments, this Court is of the considered view that Section 5 of the PMP Act is akin to Section 5-A of the Land Acquisition Act.
18
(2014) 6 SCC 564 40 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 In view of the conclusions that Section 5 of the PMP Act is akin to Section 5-A of the Land Acquisition Act, the ratio of the judgments of the Hon'ble Supreme Court referred to supra, applies to the provisions under the PMP Act.
The point is answered accordingly and the contentions of the learned counsel for the petitioners in this regard are upheld. Point No.4 :-
Non-consideration of the objections is as good as not hearing the same. The requirement of passing a reasoned order though not comprehensive by meeting the objections, would enable the Central Government to examine the recommendations/report of the competent authority/2nd respondent and take a final decision before issuance of Declaration under Section 6(1) of the PMP Act as to whether the proposal for acquisition in respect of lands which are likely to be affected needs to be dropped or modified. Thus, the report/ recommendations of the competent authority is the sole basis for the Central Government. It is pertinent to state here that insofar as the present cases are concerned, the grievance is not with regard to compensation per se, but the very acquisition itself that too on the ground that it would involve huge expenditure if the pipeline is proposed to be laid as per the present alignment, which according to the petitioners, would cost less if the same is laid adjacent to the pipelines of HPCL and GAIL which are already existing. The competent authority, therefore, is duty bound to examine the said objections, make enquiry, if necessary in this regard and submit his recommendations on the said objections to the Central Government. In the present case, there is a gross abdication of duty on the part of the competent authority/2nd respondent in as much as he simply forwarded the objections to the Central Government without 41 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 dealing with them, except merely referring to the same in the order passed under Section 5(2) of the PMP Act.
The Hon'ble Supreme Court in Nareshbhai Babubhai & Ors. v. Union of India19, while dealing with a case of acquisition of land under the provisions of Railways Act, interpreted Section 20 (D) of the Railways Act, which is similar to Section 5 (2) of the PMP Act and opined that Section 20-D is in pari-materia to Section 5-A of the Land Acquisition Act, even though the scope of objections may be more limited. The Hon'ble Supreme Court while expressing the view that the judgments rendered by the Hon'ble Supreme Court on the nature of right to object under the Land Acquisition Act, 1894 are equally applicable to the Railways Act held that:
"Sub-Section 2 of Section 20-D mandates the competent authority to give the objectors an opportunity of hearing, either in person or through a legal practitioner. The competent authority after hearing all the objections, and after making further enquiry, if any, is mandated to pass an order either allowing or disallowing the objections."
At Para No.20, the Hon'ble Supreme Court was pleased to hold thus:
"20. The limited right given to a land owner/interested person to file objections, and be granted a personal hearing under Section 20-D cannot be reduced to an empty formality, or a mere eyewash by the competent authority. The competent authority was duty-bound to consider the objections raised by the appellants, and pass a reasoned order, which should reflect application of mind to the objections raised by the land owners. In the present case, there has been a complete dereliction of duty by the competent authority in passing a reasoned order on the objections raised by the appellants." 19
(2019) 15 SCC 1 42 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 The Hon'ble Supreme Court was pleased to hold that the acquisition proceedings are invalidated as there was failure to pass order in terms of Section 20-D(2) of the Act. Section 5(2) of the PMP Act is similar to Section 20- D of the Railways Act. The interpretation of Section 20-D of the said Act by the Hon'ble Supreme Court and the ratio laid down in the Judgment referred to above, in the considered opinion of this Court squarely applies to the present cases. The said judgment of the Hon'ble Apex Court, in fact, negates several contentions raised by the learned counsel for the respondents.
Therefore, the Declaration under Section 6(1) of the PMP Act on the basis of report without due consideration of the objections objectively by the competent authority vitiates the whole proceedings.
The point is answered accordingly and the contentions of the learned counsel for the petitioners in this regard are upheld. Point No.5 :
One of the contentions raised by the learned counsel appearing for the petitioners is that the order of the competent authority is vitiated by mala fide action on his part. The learned counsel contended that the 2nd respondent at the behest of land owners/real estate dealers acted to the detriment of the petitioners. He submitted that in order to favour them and save the lands in Sy.No.72/2 and 72/3 of Chevuturu Village falling in the alignment of pipeline, the competent authority/2nd respondent changed the alignment at their behest. He contended that while the request of the petitioners for change of alignment was not considered, whereas the request of real estate dealers/ land owners in Sy.No.72/2 and 72/3 was acceded to and that itself is a proof positive that the 43 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 competent authority acted with mala fides and as such his order is liable to be set aside.
Per contra, the learned counsel for the respondents while refuting the said contentions submitted that the 2nd respondent/ competent authority taking into consideration that a residential lay out is made in Sy.No.72/2 and 72/3, had recommended for change of alignment. They further strenuously contended that the allegation that alignment is changed at the behest of real estate dealers is absolutely untenable in as much as the alignment of the pipeline is a technical issue and within the realm of the Central Government/Oil company and the 2nd respondent have no say in the matter, except to forward his report as contemplated under the provisions of the PMP Act. They further submitted that the competent authority had called for relevant information with regard to the land in Sy.Nos.72/2 and 72/3 and on being satisfied that they are part of residential lay out made pursuant to the orders of the Revenue Divisional Officer permitting conversion of land from agricultural to non-agricultural, deemed it proper that the lands are required to be exempted. The learned counsel for the petitioners, however, while drawing the attention of this Court to Section 7 (1)
(i) (a) of the PMP Act, contended that such a situation is not attracted and as on the date of issuance of Section 3 notification, the layout is not sanctioned.
The rival contentions are examined by this Court. Allegations of mala fides is very serious in nature and have to be proved strictly and beyond reasonable doubt. In E.P. Royappa v. State of Tamil Nadu20, the Hon'ble Supreme Court held as follows:
"It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are 20 (1974) 4 SCC 3 44 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility."
Further, the party against whom allegations of mala fides are made have to be impleaded as an eo-nominee party to the proceedings. Though the petitioners have made substantial allegations against the competent authority, but the same were refuted in categorical terms in the counter-affidavit. As contended by the counsel for the respondents, the 2nd respondent has no power to change the alignment, except to submit his report/recommendations containing the reasons for change of alignment in a given case and it is for the Central Government/Oil company to take the same into account and take appropriate decision. In the present case, the circumstances leading to change of alignment with regard to Sy.Nos.72/2 and 72/3 are satisfactorily explained by respondent No.2. There is no material to come to a conclusion that the authority acted with mala fides to favour the real-estate dealers. Except gross failure on the part of the 2nd respondent to consider the objections objectively and to submit the recommendations/report on an objective consideration of the objections, this Court finds no reason to accept the contentions that order of the 2nd respondent is vitiated by mala fides. Therefore, the allegations of mala fides levelled against the 2nd respondent are without any valid basis and are not sustainable.
Assuming for a moment that the 2nd respondent had acted with mala fides to benefit some real estate owners, ultimately it is for the Central Government to examine whether the alignment is to be changed on consideration of the report of the competent authority. In the present case, obviously the Central Government took into consideration of the relevant aspects and changed the alignment of pipeline. Therefore, the contention that the 45 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 impugned proceedings are vitiated by mala fide action on the part of 2nd respondent/competent authority, is rejected.
The point is answered accordingly and the contentions advanced by learned counsel for the petitioners in this regard are rejected. Point No.6 :-
Basing on the Judgment of Hon'ble Supreme Court, reported in (2016) 9 SCC 791 in Laljibhai's case referred to supra, the learned counsel for the petitioners submitted that the 2nd respondent is not competent to act as the competent authority. He contended that the competent authority should be an officer not lower in the rank than that of a Sub-ordinate Judge, that the 2nd respondent was working as Tahsildar in the Revenue Department and as such he is not qualified to act as competent authority. He submitted that in view of the fact that the 2nd respondent is not satisfying the parameters as set out in the said Judgment of the Hon'ble Supreme Court, he has no competence to act as competent authority and as such the order passed by him is vitiated and the consequential Declaration under Section 6 of the PMP Act, is liable to the set aside.
The learned counsel for the respondents, on the other hand, while referring to the qualifications, experience of the 2nd respondent set out in detail in the counter-affidavit, contended that the 2nd respondent is possessing the required legal knowledge, worked as Tahsildar in the Revenue Department and having rich experience. That the Hon'ble Supreme Court in the above referred Judgment opined that the competent authority under the provisions of the PMP Act must be a judicial officer not lower in the rank than that of a sub-ordinate Judge or is a trained legal mind. They submitted that the 2nd respondent is a law graduate, also practiced as an Advocate, possess legal acumen and satisfies 46 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 the criteria of a trained legal mind as observed by the Hon'ble Supreme Court. Accordingly, they supported the orders of the competent authority as valid. The learned counsel for the respondents in this regard placed reliance on the Judgment of a learned Single Judge of the erstwhile Common High Court at Hyderabad in W.P.No.508 of 2018, dated 20.03.2018.
As seen from the qualifications as well as the experience and the functions discharged by the 2nd respondent, he worked in the Revenue Department, also practiced as an Advocate. Therefore, nothing adverse about the competency of the 2nd respondent can be drawn and this Court is of the view that he satisfies the criteria of a trained legal mind as observed by the Hon'ble Supreme Court. Further, the Judgment of the learned Single Judge referred to supra, supports the contentions of the learned counsel for the respondents and the 2nd respondent is qualified and competent to deal with the acquisition proceedings in the present case.
Accordingly, the point is answered and the contention of the learned counsel for the respondents is upheld.
However, it would be trite to observe here that the competent authority under the provisions of the PMP Act would be dealing with the valuable rights of parties. Therefore, it is desirable that a person who is holding or served as a judicial officer not lower in the rank than that of a Sub-ordinate Judge would be more suitable to discharge the functions of a competent authority under the provisions of the PMP Act.
Other contentions of the respective counsel and conclusions :-
Learned counsel for the petitioners contended that merely because Section 5(3) of the PMP Act contemplates that the order of the competent 47 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 authority is final, it would not curtail the power of this Court and where the decision making process itself is in question, the same can be examined in exercise of powers of judicial review under Article 226 of the Constitution of India. The Hon'ble Supreme Court in Hindustan Petroleum's case referred to supra, held has follows:-
"...........when the decision making process itself is in question, the power of judicial review can be exercised by the court in the event the order impugned suffers from well- known principles, viz., illegality, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner."
In the present case, the order of the 2nd respondent without considering the objections objectively constitutes illegality and the decision making process itself is therefore vitiated. As such, the orders passed by the 2nd respondent impugned in the writ petitions are unsustainable and liable to be interfered with in exercise of powers conferred under Article 226 of the Constitution of India. Accordingly, the contention of the learned counsel for the petitioners is upheld.
The learned counsel for the petitioners contended that as per the peg marking done in the year 2016, the petitioners' lands are not falling within the pipeline alignment and by referring to the sketch filed by him, he further submitted that the alignment as peg marking was going like a straight line without touching the lands of the petitioners and due to change of alignment at the best of influential persons, the petitioners' lands are affected and the distance is increased by about 30 kilometres.
Refuting the said contentions, learned counsel for the respondents submitted that mere survey and marking of land, if any, prior to issuance of 48 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 notification under the Section 3(1) of the PMP Act is of no consequence and the provisions of the Act would come into force only on issuance of the said notification and rights, if any, to the parties would accrue thereafter. No material is filed to the effect that the peg marking was done pursuant to the notification under Section 3 (1) of the PMP Act. In the absence of any such material, this Court is of the opinion that no finding in favour of the petitioners can validly be recorded. Accordingly, the contentions of the respondents in this regard are upheld.
The other contention advanced by the learned counsel for the petitioners is that the respondents took the risk of laying pipelines and therefore the submission of the respondents that project is complete in all respects except the stretch covering the lands of the petitioners etc., and any direction as prayed for would delay the project, cannot be accepted. The said contention cannot be appreciated by this Court when the larger interest of public is weighed against the individual interest of petitioners and therefore the same is rejected.
Learned counsel for the respondents while making their submissions supported the order of the 2nd respondent contending that the petitioners were afforded an opportunity of hearing and explanation to the objections raised by the petitioners was annexed to the order and that there is no requirement to pass a reasoned order, much less an elaborate order. They further contended that since the 2nd respondent is not the final authority, the order cannot be found fault with and the record contains the reasons.
The said contentions of learned counsel for the respondents deserves to be rejected in the light of the conclusions arrived at on the analysis of the Judgments of Hon'ble Supreme Court while answering the points set out above. Further, acceptance of the submissions as made by the learned counsel for 49 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 respondents would not only render the purpose of providing opportunity to file objections and recording recommendations on the objections as mandated superfluous, but the very provisions of the PMP Act, viz., Sec.5 and 6, otiose.
The contention that the record contains the reasons in as much as explanation to the objections is available for consideration by the Central Government and the same is sufficient, also cannot be accepted for more than one reason. The objections are required to be considered by the 2nd respondent objectively as opined earlier and the explanation to the objections as submitted on behalf of the Oil Company is not a substitute for the same. It is not an empty formality or mere eye wash. Further, the attempt made on behalf of the respondents, in the counter-affidavit, justifying the order of the 2nd respondent, is also not tenable. In this regard, it may be apposite to refer to the Judgment of Hon'ble Supreme Court in Mohinder Sing Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors.,21 wherein it was held that:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."
Several similar contentions raised by the learned counsel for the respondents as noted above were negatived by the Hon'ble Supreme Court in Nareshbhai Babubhai's case referred to supra.
It may be appropriate to state here that as opined earlier, passing of an order under Section 5(2) of the PMP Act, assumes significance in the light of the 21 (1978) 1 SCC 405 50 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 fact that the competent authority is required to deal with objections, not merely hearing them, but also make a report containing the recommendations on the objections. Such provisions of the Act have to be strictly construed and therefore, the contentions of the learned counsel for the respondents are rejected for the said reason also.
Though the petitioners have, inter alia, sought the relief of Mandamus to declare the proceedings under Section 3 (1) of the PMP Act, as illegal etc., there is no serious attack in that regard, nor any grounds made out to grant such a relief. In the absence of any specific contention that issuance of notification under Section 3 is contrary to law or for any plausible reasons, the same requires no consideration nor a declaration to that effect be issued. Accordingly, the petitioners are not entitled to the relief sought for with reference to the Notifications issued under Section 3 (1) of the PMP Act. Further granting of such a relief, this Court is of the firm view, in the light of the submissions that the 'Pipeline Project' is completed in all respects, except the stretch covering the lands of the petitioners, would result in serious consequences as stated by the learned counsel for the respondents.
Point No.7: To what relief ?
In view of the conclusions arrived at above, the order passed by the competent authority without considering the objections objectively is invalid and the consequential Section 6(1) Declaration of the PMP Act is vitiated. In Surinder Singh Brar's case referred to supra, the Hon'ble Supreme Court while dealing with a case arising under Land Acquisition Act, at para 84 of the Judgment held as follows :-
".........The formation of opinion on the issue of need of land for a public purpose and suitability thereof is sine qua non for issue of a declaration under Section 6(1). Any violation of the substantive right of 51 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 the landowners and/or other interested persons to file objections or denial of opportunity of personal hearing to the objector(s) vitiates the recommendations made by the Collector and the decision taken by the appropriate Government on such recommendations. The recommendations made by the Collector without duly considering the objections filed under Section 5A(1) and submissions made at the hearing given under Section 5A(2) or failure of the appropriate Government to take objective decision on such objections in the light of the recommendations made by the Collector will denude the decision of the appropriate Government of statutory finality. To put it differently, the satisfaction recorded by the appropriate Government that the particular land is needed for a public purpose and the declaration made under Section 6(1) will be devoid of legal sanctity if statutorily engrafted procedural safeguards are not adhered to by the concerned authorities or there is violation of the principles of natural justice.................."
Though the ratio laid down in the above said Judgment is applicable to the facts of the present case, the contentions of the learned counsel for the respondents requires to be considered for granting appropriate reliefs. According to the learned counsel for respondents, the Pipeline Project in question is completed in all respects, except the stretch covered by the lands, which are subject matter of the present litigation. He also submitted that most of the petitioners have agreed to receive the compensation after filing of the writ petitions, which the counsel for the petitioners denies. Though the said aspect cannot be ignored, this Court is required to appreciate the submissions made by the learned counsel for the respondents that if the alignment is required to be changed in the light of any adverse findings by the Court, it would not only result in huge expenditure, but also delay in the project of national importance as new pipeline has to be laid by acquiring the right of user of land by issuing fresh notifications and the consequential Declarations, which is not in the 52 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 interest of public at large. This Court finds merit in the submissions made by the learned counsel for the respondents. It is settled law that private interest should yield to the public interest. (See: Vasantkumar Radhakisan Vora v. Board of Trustees of the Port of Bombay22) In Chameli Singh & Ors. V. State of U.P. & Anr.23, the Hon'ble Supreme Court held as follows:
"18. In every acquisition by its very compulsory nature for public purpose, the owner may be deprived of the land, the means of his livelihood. The State exercises its power of eminent domain for public purpose and acquires the land. So long as the exercise of the power is for public purpose, the individual's right of an owner must yield place to the larger public purpose........."
In the present case, as opined earlier, there is abdication of functions on the part of the 2nd respondent in considering the objections of the petitioners objectively and the consequential proceedings are vitiated on that ground. But would it justify the issuance of Mandamus declaring the action of the respondents as illegal and quashing the notifications under the PMP Act or to issue directions to change the alignment ignoring the consequences in the light of the submissions made by the learned counsel for the respondents? In one of the Judgments referred to by the learned counsel for the petitioners, in Writ Appeal No.1586 of 2017, dated 06.12.2017, a Hon'ble Division Bench of the erstwhile Common High Court at Hyderabad dealt with the provisions of the PMP Act. In the said case, a declaration under Section 6(1) of the PMP Act was issued without affording an opportunity to submit the objections by the concerned land owners during the course of oral hearing in terms of Section 5(2) of the PMP Act. The Hon'ble Court while holding that it was obligatory on the 22 (1991) 1 SCC 761 23 (1996) 2 SCC 549 53 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 part of the respondents to give the petitioners an opportunity to submit their objections, taking into the fact that the pipeline has already been laid over the petitioners' land, set aside the declaration under Section 6 of the PMP Act, insofar as the petitioners therein are concerned and they were permitted to put- forth their oral objections and afforded an opportunity of oral hearing to the notification under Section 3(1) of the PMP Act. However, in the present case, pipeline has not been laid in view of the interim orders granted in the respective writ petitions. Therefore, the mute question that remains is whether it would really serve any purpose to issue a direction to the competent authority to pass an order duly considering the objections? This Court is of the opinion that such a direction to the competent authority to complete the formality would neither be appropriate, nor meet the ends of justice, in view of the specific submissions that the project is complete in all respects, except the stretch covering the lands which are subject matter of the present litigation. Had the 2nd respondent objectively considered the objections of the petitioners with specific reference to the aspect that laying of pipelines in respect of the project in question adjacent to the pipelines of HPCL and GAIL would not only save huge expenditure, but their lands would also be not affected as also other objections and forwarded his recommendations on the objections, perhaps the Central Government/Oil company in its wisdom, would have taken an appropriate decision in a right perspective at the appropriate time and changed the alignment, if it was so warranted after examination of the recommendations. The objections even if they are found to be valid, at this juncture, wound end up in recording a finding in favour of the land owners and their entitlement to compensation, as a decision to change the alignment cannot be expected, nor the same desirable in the larger interest of public. However, due to lackadaisical approach of the 2nd respondent, the petitioners were deprived of consideration of their objections by 54 NJS,J W.P.Nos.682, 10069 and 11829 of 2019 the Central Government and an appropriate decision thereon, at the relevant point of time. Therefore, to meet the ends of justice, this Court deems it appropriate to adopt an equitable approach in larger public interest, while safeguarding the interest of the petitioners.
In this regard, this Court is guided by the recent Judgment of the Hon'ble Supreme Court in Nareshbhai Bhagubhai's case referred to supra, wherein the Hon'ble Supreme Court dealt with a case arising out of Railways Act and interpreted Section 20-D of the said Act which is pari-materia to Section 5 of the PMP Act. It may be appropriate to extract these Sections under the said Acts, for ready reference:
Section 20-D of the Railways Act Section 5 of the PMP Act. 20D. Hearing of objections, etc. (1) Any 5. Hearing of Objections.-- (1) Any person interested in the land may, person interested in the land may, within a period of thirty days from the within twenty-one days from the date date of publication of the notification of the notification under sub-section under subsection (1) of section 20A, (1) of section 3, object to the laying object to the acquisition of land for the of the pipelines under the land. purpose mentioned in that sub section.
(2) Every objection under (2) Every objection under subsection sub-section (1) shall be made to the (1), shall be made to the competent competent authority in writing and authority in writing, and shall set out shall set out the grounds thereof and the grounds thereof and the competent the competent authority shall give authority shall give the objector an the objector an opportunity of being opportunity of being heard, either in heard either in person of by a legal person or by a legal practitioner, and practitioner and may, after hearing all may, after hearing all such objections such objections and after making and after making such further enquiry, such further inquiry, if any, as that if any, as the competent authority authority thinks necessary, by order thinks necessary, by order, either allow either allow or disallow the or disallow the objections. objections.55
NJS,J W.P.Nos.682, 10069 and 11829 of 2019 Explanation: For the purposes of this (3) Any order made by the sub section, "legal practitioner" has the competent authority under sub- same meaning as in clause (1) of sub- section (2) shall be final. section (1) of section 2 of the Advocates Act, 1961(25 of 1961).
(3) Any order made by the competent authority under subsection (2) shall be final.
In the said case, the lands of the petitioners were sought to be acquired for laying a Railway line. The competent authority without considering the objections objectively passed an order and thereafter consequential notification was issued. The Hon'ble Apex Court after referring to a catena of earlier Judgments at para-20 held that:
"........the competent authority was duty bound to consider the objections raised by the appellants and pass a reasoned order, which should reflect application of mind to the objections raised by the lands owners. In the present case there has been a complete dereliction of duty by the competent authority in passing a reasoned order on the objections raised by the appellants."
The Hon'ble Supreme Court at para-32 of the said Judgment held thus:
"The competent authority being a quasi judicial authority is obligated by law to act in conformity with mandatory statutory provisions. It is important to note that this is the only opportunity made available to a land owner, as on submission of the report to the Central Government, there is no further consideration that takes place. The Central Government acts upon the report of the competent authority and issues the declaration under Section 20-E of the said Act.............." 56
NJS,J W.P.Nos.682, 10069 and 11829 of 2019 The Hon'ble Supreme Court at para-33 of the said Judgment held that:
"In the absence of an order passed under Section 20-D (2), the subsequent steps taken in the acquisition would consequentially get invalidated."
The Hon'ble Supreme Court though held that there is breach of mandatory provisions of the Act, keeping in view the aspect that the entire Railway line except 125 kilometres which is the subject matter of litigation before it is completed, opined that the larger public purpose of a Railway project could not be served if notification under Section 20-A of the Railways Act, is quashed. The Hon'ble Supreme Court, therefore, moulded the relief and granted compensation to be assessed under Section 20-G of the said Act, as per the current market value of the land.
The said Judgment of the Hon'ble Supreme Court and the ratio laid down therein, in the considered opinion of this Court, applies to the facts of the present cases, more particularly, in view of the pari-materia provisions viz., Section 20-D and Section 5 referred to supra.
15. Under the aforementioned facts and circumstances and the findings recorded above in the light of the Judgments of the Hon'ble Supreme Court, the orders of the 2nd respondent and the consequential Declarations under Section 6(1) of the PMP Act are not valid, insofar as the lands in question are concerned. However, on an overall consideration of the issues and for the reasons set out supra, this Court deems it appropriate to issue the following directions:
(a) The petitioners are entitled to compensation to be determined under Section 10(4) of the PMP Act, however, on the market value of the lands existing as on the date of filing of the writ petitions. 57
NJS,J W.P.Nos.682, 10069 and 11829 of 2019
(b) The petitioners who filed objections before the competent authority alone are entitled to receive the compensation as indicated above.
(c) The petitioners who have already received compensation during the pendency of the writ petitions are not entitled to compensation as indicated in item-(a).
(d) Any grievances with regard to determination of compensation as indicated in item-(a) may be agitated before the competent District Court under Section 10 (2) of the PMP Act.
(e) The compensation as indicated in item-(a) shall be paid within six (6) weeks from the date of receipt of a copy of this Court.
16. Accordingly, the writ petitions are partly allowed with the directions as indicated above, with costs of Rs.10,000/- (Rupees ten thousand only) in each writ petition, to be borne by respondent No.2.
Consequently, Miscellaneous Petitions pending, if any, in the Writ Petition shall stand closed.
______________________ NINALA JAYASURYA, J Date: 22.10.2020 AKC/BLV Note:-
LR copy to be marked.58
NJS,J W.P.Nos.682, 10069 and 11829 of 2019 HON'BLE SRI JUSTICE NINALA JAYASURYA WRIT PETITION Nos.682, 10069 and 11829 of 2019 Dt: 22.10.2020 AKC/BLV