Gujarat High Court
Raj Mahendrasinh Dilavarsinh & 49 vs Competent Authority And Deputy ... on 9 September, 2016
Author: Anant S.Dave
Bench: Anant S. Dave, G.B.Shah
C/SCA/5948/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5948 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order made
thereunder ?
================================================================
RAJ MAHENDRASINH DILAVARSINH & 49....Petitioner(s)
Versus
COMPETENT AUTHORITY AND DEPUTY COLLECTOR &
2....Respondent(s)
================================================================
Appearance:
MR MIHIR JOSHI Senior Advocate with MR MTM HAKIM, ADVOCATE for the
Petitioner(s) No. 1 - 50
MR RAKESH GUPTA for M/S TRIVEDI & GUPTA, ADVOCATE for the
Respondent(s) Nos. 2 & 3
MR ABHISHEK M MEHTA, ADVOCATE for the Respondent(s) No. 1
===========================================================
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 09/09/2016
CAV JUDGMENT
Page 1 of 53
HC-NIC Page 1 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1 The petitioners have filed this petition under Articles 226 & 227 of the Constitution of India with the following main prayers:
"[A] THIS HON'BLE COURT MAY BE PLEASED TO quash and setaside the impugned order dated 31.12.2010 in so far as the same is against the Petitioners, passed by the Respondent No.1 - Competent Authority and Deputy Collector, GAIL (India) Limited, Vadodara (AnnexureA);
[B] THIS HON'BLE COURT MAY BE PLEASED TO allow the Applications dated 12052010 and 24052010 on behalf of the Petitioners, preferred before the Respondent No.1, Competent Authority and thereby also direct the Respondents to compensate the loss incurred by the Petitioners, due to illegal invocation of Section8 of the Act qua the petitioners' lands.
[C] Pending admission, hearing and till final disposal of the present Petition, THIS HON'BLE COURT MAY BE PLEASED TO stay Page 2 of 53 HC-NIC Page 2 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT the execution, implementation and operation of the impugned order dated 31 122010 in so far as against the Petitioners passed by the Competent Authority and Deputy Collector, GAIL (India) Limited, Vadodara (AnnexureA);
and further also be pleased to restrain the Respondent No.2 and 3 from proceeding and doing any work, invoking Section 8 of the Act;
[D] Pending admission, hearing and till final disposal of the present Petition, THIS HON'BLE COURT MAY BE PLEASED TO direct the Respondents to compensate the loss incurred by the Petitioners, due to illegal invocation of Section8 of the Act qua the petitioners' lands".
2 The petitioners are the owners / occupiers / farmers of agricultural lands in dispute. In the year 2001, the GAIL India Limited [for short, GAIL] wanted to lay / install the Dahej Vemar Vijapur Gas PipelineI Project [for short, DVPLI Project] and for that purpose, proceedings were initiated under the provisions of The Petroleum and Minerals Pipelines (Acquisition of Right of User Inland) Page 3 of 53 HC-NIC Page 3 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT Act, 1962 [for short, the Act, 1962] and on 27.08.2001 Notification under Section 3(1) of the Act, 1962 was published.
2.1 Thereafter, on 24.01.2002 notification issued under Section 6(1) of the Act, 1962 was published on 02.02.2002. Accordingly, GAIL started the work of laying the DVPLI project in May, 2003 and completed the work in 2004. Further, the respondent No.1 gave general intimation to local authority (Gram Panchayat) about termination of work in August, 2004. After completing the work DVPLI Project, the possession of lands was returned to the original owners / occupiers / farmers and they are entitled to cultivate their lands, subject to restrictions regarding use of land imposed under Section 9 of the Act, 1962 and subject to power to enter the land for inspection, etc under Section 8 of the Act, 1962. Accordingly, the petitioners and other affected farmers claimed compensation, as provided under Section 10(1) of the Act, 1962 for loss of crops and cultivation and under Section 10(4) for loss of enjoyment in the lands. Initially, the respondent passed awards qua both compensations but the same were subject matter of challenge before the District Court and proceedings were also carried up to this Court.
Page 4 of 53HC-NIC Page 4 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT 2.2 On 02.02.2009, for laying new Pipelines for the DVPLII project in the year 2009, Notification under Section 3(1) for additional 10 meters wide strip of land parallel and adjacent to earlier Right of User [for short, `RoU'] was issued. On 22.09.2009 notification under Section 6(1) of the Act, 1962 was also issued for the said DVPLII project for same 10 meters strip of land. On 30.11.2009 for laying new Pipeline for DVPLII Project in the RoU of earlier DVPLI project in the case of the petitioners and of similar other affected farmers, notices were issued under Section 8 of the Act, 1962. Notice / intimation for handing over possession under section 8 of the Act of the earlier RoU of DVPLI Project for laying pipeline of DVPLII Project was issued warning that if willingly the possession is not handed over, the same would be offence as provided by the Act, 1962. Being aggrieved by the above, the petitioners and other owners / occupiers and farmers filed application before the respondent No.1 on 12.05.2010 through petitioner No.1 objecting to invocation of section 8 of the Act, 1962 and challenging the legality and validity of notice dated 30.11.2009. On 24.05.2010 on behalf of petitioners another elaborate application reiterating earlier contentions and submissions with further Page 5 of 53 HC-NIC Page 5 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT particulars and details was made. On 25.06.2010 GAIL also submitted its written submissions contesting the application of the petitioners.
2.3 The respondent No.1 - competent authority heard and considered the objections and passed impugned order dated 31.12.2010 holding that the notice dated 30.11.2009 issued under section 8 for laying new pipeline for DVPLII project, is illegal and against the statutory provisions of the Act, but has neither restrained the GAIL from proceeding in furtherance to the impugned notice nor has passed any order for payment of compensation for the damage caused to the petitioners and other affected owners / occupiers / farmers.
3 The main challenge before the Competent Authority and Deputy Collector, GAIL [India] Ltd. was as under:
"[A] To quash and setaside impugned notice dated 30.11.2009 issued by GAIL [India] Ltd.
[B] To direct GAIL[India] Limited to treat the work of laying pipeline in Dahej Vijapur Pipeline ProjectII (DVPLII) as per Section 7 of the P&MP Act and not Page 6 of 53 HC-NIC Page 6 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT under Section8 of the Act.
[C] To issue direction by clarifying that the compensation under Section 10(4) of the P&MP Act, 1962 in respect of the DVPL II project shall be payable to the petitioner on the basis of the 10% market price of land as on 02.02.2009 viz. the date of notification under Section 3(1) of the P&MP Act, 1962".
3.1 According to the Competent Authority following questions of law arose for consideration:
That one of the questions involved in this petition is whether GAIL (India) Limited can lay 610 kms. Gas pipeline of 48" diameter for the DVPLII project by resorting to notices issued under Section 8 of the P&MP Act, 1962. The second issue raised by the petitioner is that whether the petitioner is entitled to receive additional compensation under Section 10(4) of the Act and in order to quantify the said additional compensation the market price of land as on the date of Section 3(1) is to be considered.Page 7 of 53
HC-NIC Page 7 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT 3.2 The petitioner contended before the Competent Authority, as under:
[A] The petitioner Mr. M.D.Raj is the owner of the Agriculture land bearing Survey No.129/1, situated at Village - Saykha, Taluka : Vagra, Dist. Bharuch admeasuring H 0 Acre 77 Sq. Mtrs. 94.
[B] In the year 2001, the GAIL wanted to lay / install the Dahej Vemar Vijaipur Gas pipelineI project [hereinafter referred to as DVPLI project) and for that purpose proceedings were initiated under the provision of the P&MP Act by issuing notification dated 24.07.2001 under Section 3(1) of the P&MP Act and the Gazette notification was made available to the public on 27.08.2001. Thereafter notification dated 22.01.2002 was issued under Section 6(1) of the Act which was published on 02.02.2002.
[C] That GAIL (India) Limited started the work of laying the DVPLI project in May 2003 and completed the work in 2004. The Competent Authority of GAIL gave general intimation to local authority [Gram Panchayat] about termination of work in Page 8 of 53 HC-NIC Page 8 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT August, 2004.
[D] That after completing the work of DVPLI project, the possession of the lands was returned to the original owners. That the owners / occupiers of the lands were entitled to cultivate their lands, subject to restriction regarding use of land imposed under section 9 of the Act and subject to power to enter the land for inspection etc. under section 8 of the Act.
[E] That for the purpose of appreciating the facts of the case, the petitioner has quoted section 8 of the Act and has submitted that provisions of Section 8 of the P&MP Act can be applied only in respect of an existing pipeline i.e. Pipeline which is already laid and the same provision cannot be applied for laying new pipeline.
3.3 The following facts, law and grounds were raised in respect of their challenge before the competent authority:
[i] That the action on the part of GAIL in proceeding to carrying out the work under Section 7 of the Act by issuing notice under section 8 is not permissible in Law. It is Page 9 of 53 HC-NIC Page 9 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT pertinent to note that the loss / damage caused to the petitioner and other affected farmers while laying pipeline under Section 7 of the Act is liable to be compensated under section 10 of the Act. In the instant case, the work of laying pipeline is sought to be executed under section 7 of the Act, whereas the notice dated 30112009 is issued under section 8 of the Act. After completing the work of laying pipeline in DVPLII project, the question of payment of compensation under section 7 would arise and GAIL is likely to take a dishonest stand that no compensation would be paid under section 7 is payable as the work has been carried out in pursuance to notice issued under section 8 of the Act. Thus, this aspect requires clarification at the threshold.
[ii] In the present case, the farmers whose land through which the gas pipeline will be laid would suffer loss and damage at different stages.
[iii] That at the stage of entry & survey under Section 4 of the Act, while doing the work of boundaries & line marked, the standing corp, fence, trees on the land Page 10 of 53 HC-NIC Page 10 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT would be cut down and cleared away. This loss / damage caused to the farmers is liable to be compensated under Section 10 of the Act.
[iv] That it is most pertinent to note that the procedure of laying of DIPLI and DVPLII project are the same. That on account of laying new pipeline, the petitioner and all other farmers would face identical difficulties, that were faced by them in the earlier project.
[v] That Section 10(4) of the Act provides for additional amount of compensation to the owner or any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of vesting of land. That the said provision is designed to provide additional compensation for the inconvenience caused to the land owner or the occupier of the land due to laying gas pipeline. Thus, as the petitioners and all other farmers would be entitled to receive additional compensation under section 10(4) of the Act. It is provided that the amount of additional compensation would be 10% of the market price of the land as on the date of Page 11 of 53 HC-NIC Page 11 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT notification under section 3(1) of the Act.
[vi] That in the instant case, though the petitioner is entitled to receive additional compensation under Section 10(4) as no notification is issued under section 3(1) of the Act qua 20 Meters wide strip of land, but still petitioners would be entitled to claim compensation under Section 10(4) of the Act on the basis of 10% market price of land as on 02.02.2009 viz. the date of notification under Section 3(1) of the P&MP Act, 1962.
[vii] That in the instant case GAIL (India) Limited has adopted a procedure which is arbitrary, illegal and bad in law and it hurt the petitioner and other farmers in the matter of claiming compensation under Section 10 of the Act. That GAIL cannot be permitted to proceed with the work unless and until the genuine & bonafide grievance of the petitioner on all principle issues are clarified. That GAIL cannot be allowed to keep everything vague and proceed with the work, as the petitioner strongly apprehends that once the question of payment of compensation to the petitioner and affected farms would arise, GAIL (India) Page 12 of 53 HC-NIC Page 12 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT Limited is likely to resort to dishonest stand thereby deprive the petitioner and other affected farmers, their just compensation under the Act.
3.4 According to GAIL following factual aspects remain undisputed even by the person affected by right of user:
"The first pipeline i.e. HBJ gas pipeline was constructed during the year 198586, which was then utilized to maximum operating capacity. At a later date, when additional gas was available for catering the demands of downstream consumers / industries, it became necessary for GAIL to design and upgrade the capacity utilization of pipeline network, which was already in operation. Therefore, another pipeline for supplementing the capacity utilization of existing pipeline was planned and accordingly the DVPLI pipeline was implemented with intermediate linking of pipeline system with additional boosting capacity. Technically, the additional pipelines through the existing and partially added width of the additional RoU are constructed for the purpose of utilization Page 13 of 53 HC-NIC Page 13 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT of the existing pipelines. The third pipeline presently under construction (DVPL II) is also a part of the system, designed for maximum utilization of pipeline network.
The two pipelines of 36 and 42 inch diameter laid earlier and present pipeline of 48 inch diameter are also part of capacity utilization for creating a LINE PACK for sustaining the downstream suppliers in case of any difficulties at the intake point of the pipeline system.
3.5 Other issues raised by GAIL, were as under:
It was urged before the competent authority that notices under Sections 8 were issued for giving reasonable opportunity to the occupier of the land of the activities to be carried out for laying pipelines by GAIL so as to facilitate affected land owners to salvage the standing crop. It was specifically contended that compensation on account of crop damaged during the construction phase of DVPLII passing within the marked and predetermined width of the RoU i.e. for 30 meters width up to Vemar and beyond Vemar for 32 meters is payable as Page 14 of 53 HC-NIC Page 14 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT per the provision of the Act. In addition to the compensation for crop and other related damages, land compensation under Section 10(4) is limited to the additionally acquired RoU of 10 meters width from Dahej to Vemar and 18 meters width from Vemar to Khangela is payable as per the provisions of the Act. It was contended that notice under Section 7 is generally issued when altogether a new RoU is acquired for laying a new pipeline. In a combined RoU as in a case of DVPLI and DVPLII pipeline projects where the pipelines are constructed for upgrading the infrastructure and utilizing the existing network of the pipelines including the existing and the additionally acquired RoU, there is no question of revisiting the user's rights in the same land by repeating the process of issuing notifications under Sections 3[i] and 6[i] of the Act.
The compensation as per provisions of Section 10(4) of the Act for the land acquired with the right of user becomes payable, once such rights are duly vested with the acquiring body and such compensation is paid to the concerned land owner or occupier whose rights of enjoyment Page 15 of 53 HC-NIC Page 15 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT in the land has been affected. The quantum and manner in which such additional compensation is to be paid is also prescribed therein. In short, according to GAIL payment of 10% of the market value of the land as on the date of Section 3(1) notification is a one time payment and not at every stage of laying down additional pipelines.
3.6 Following issues fell into consideration for Competent Authority:
[1] Whether GAIL (India) Limited is justified in laying DVPLII pipeline by re opening the earlier RoU by virtue of issuance of notice dated 30.11.2009 under Section 8 of the P&MP Act.
[2] Whether the farmers or the land owners as the case may be are entitled to receive additional land compensation @10% of the market value of land as on the date of notification issued on 02.02.2009 under Section 10(4) of the P&MP Act.
[3] Whether the Competent Authority has jurisdiction to entertain and decide upon the issues mentioned at Sr. No.2 above.Page 16 of 53
HC-NIC Page 16 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT Following decisions rendered:
Issue No.1 In the Negative
Issue No.2 In the Affirmative
Issue No.3 In the Affirmative
3.7 The competent authority further
addressed itself to provisions of the Act including Sections 7, 8 and 10 and refused to quash and set aside notices dated 30.11.2009 and the prayer for additional compensation and the payment of 10% of the market value of the land as per Section 3(1) of the Act, and it was held that while exercising powers under Sections 7 and 8, the Central Government, the State Government or the Corporation, as the case may be, is liable to pay the additional land compensation @10% of the market value of the land as on the date of Section 3(1) of the Notification. It is further declared that affected land owners are to be awarded compensation by Section 10(4) of the Act, 1962 to further held as under:
"However in my considered opinion as on date the legal process of acquisition of right of user following statutory provisions of the Act starting from section 3(1) of the Act have not been Page 17 of 53 HC-NIC Page 17 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT followed culminating in notice under section 7 thereby entitling for application under section 10(4) of the Act, the applicant and the affected farmers prayer for compensation cannot be granted at this stage. In my considered opinion the same shall be required to be considered only after the statutory provisions of the Act are followed.
In view of my aforesaid opinion and consideration I hold that the impugned notices under section 8 qua the applicant and the affected farmers are illegal and contrary to the statutory provisions of the Act, whereas the prayer of the applicant and the affected farmers of compensation cannot be granted at this stage, without the compliance and following of the statutory provisions of the Act.
Any Party aggrieved by this order, shall have an option to apply to District Judge within the limits of whose jurisdiction the land is situated as per provision of the P & MP Act, 1962.
Both parties are to be informed Page 18 of 53 HC-NIC Page 18 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT accordingly.
I have signed & affixed my seal on every page & declared in open court on the 31st December, 2010."
4 In the backdrop of the above, Mr. Mihir Joshi, learned Senior Advocate appearing for the petitioners submits that though the Competent Authority upheld that GAIL could not have invoked the provisions of Section 8 of the Act, 1962 for laying new pipeline for DVPLII project as the same is not provided vide section 8 of the Act, the Competent Authority has partly allowed the claim and remaining grievances are to be redressed by this Court.
4.1 It is further submitted that Competent Authority ought to have restrained GAIL Ltd. from doing any further work invoking notice under Section 8 of the Act, 1962 in relation to the petitioners and other affected owners / occupiers / farmers on the ground that the project is of national importance.
4.2 Learned Senior Advocate appearing for the petitioners would contend that initially on 27.08.2001 notification under Section 3(1) of the Act was published and made available in the Page 19 of 53 HC-NIC Page 19 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT gazette for the public and thereafter on 24.01.2002 notification was issued under Section 6(1) of the Act and was published in the gazette on 02.02.2002 for the project DVPL1 and thereby RoU of 30 meters wide strip of land was acquired. The compensation, etc. was paid under Section 10(1) and 10(4) for loss of crops and cultivation and also for loss of enjoyment in the lands by the competent authority qua award passed and the same was subject matter of challenge before the District Court and up to the High Court. For DVPLII project, a new notification was issued on 02.02.2009 under Section 3(1) for additional 10 meters wide strip of land parallel and adjacent to earlier RoU and thereafter notification under Section 6(1) was issued on 22.09.2009 by which land came to be vested with respondent, but thereafter admittedly notices were issued under Section 8 of the Act which empowers the acquiring body to enter into the lands for inspection, etc. and the above notice dated 30.11.2009 was objected by the owners and occupiers of the land that Section 8 does not permit and grant power to enter the land and lay new pipelines and it only permits and grants power to enter the land to inspect for maintaining, examining, repairing, altering or removing any pipeline and, therefore, such notification is illegal. According to learned Page 20 of 53 HC-NIC Page 20 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT Senior Advocate Mr. Mihir Joshi, the Competent Authority has committed gross illegality by permitting further work under section 8 of the Act of laying down new pipeline for new project and, therefore, order passed by the Competent Authority impugned in this petition requires to be quashed and set aside. It is further submitted that though competent authority has held that notification under Section 8 issued by GAIL was illegal but failed to pass order for payment of compensation and, therefore, also impugned order is required to be quashed and set aside. In the facts of the case, it is submitted that the Competent Authority at least ought to have ordered payment of damages and compensation caused due to illegal action on the part of GAIL and it is not in dispute that additional 10 meters of strip land acquired for RoU is not the same which was acquired earlier.
4.3 It is further submitted that in view of the above, the respondents be directed to pay additional compensation as envisaged under Section 10(4) of the Act, 1962 and to modify the order passed by the Competent Authority accordingly.
4.4 Inter alia, learned Senior Advocate has made reference to words "such pipeline" under proviso (d)(ii) of Section 7(1)(i) and submitted Page 21 of 53 HC-NIC Page 21 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT that the same is for already laid pipelines and not new pipelines. Section 7 of the Act is to be interpreted qua first and foremost right of user and not for laying down new pipeline and even for expansion payment of additional compensation is required under Section 10(4) of the Act.
5 Mr. Rakesh Gupta, learned counsel for the respondent - GAIL, relied on the provisions of the Act, 1962 viz. Sections 3, 6, 7, 8 and 10 read with Rule 4(2) of the Rules framed in exercise of powers conferred by Section 4 of the Act. According to learned counsel for GAIL the decision of the competent authority that petitioners are not entitled to receive additional compensation under Section 10(4) of the Act, 1962, is just and proper. That RoU vested with the respondent - GAIL as early as in the year 2002 and as part of infrastructural development additional pipelines are to be laid in already acquired RoU and, therefore, no additional compensation can be given under Section 10(4) of the Act.
5.1 Learned counsel for the respondent - GAIL submitted that the competent authority has rightly not granted any compensation to the petitioners for laying down of new pipeline in the RoU acquired by the respondent - GAIL in Page 22 of 53 HC-NIC Page 22 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT 2002. It is further submitted that once the RoU has been vested with the answering respondent in 2002 after publication of notification under section 6(1) of the Act, there is no repeated vesting of rights for which the land compensation is required to be paid again and again. It is further submitted that whatever was legally due and payable to the petitioner or other similarly affected persons has already been determined by the competent authority and has been paid by the respondent way back in 200304 and after issuance of notice under section 8 of the Act, crop compensation and compensation for the newly acquired RoU is being paid by the answering respondent in compliance with the award passed by the competent authority as per the provisions of the Act. It is, therefore, submitted that the competent authority has rightly not granted compensation to the petitioners and the impugned order, to the extent it is challenged by the petitioners, is just and proper. That the compensation for additional 10 meters strip acquired for RoU is new acquisition for which proceedings under section 3(1) of the Act was followed by procedure under section 6(1) of the Act in the year 2009 and as far as the old RoU is concerned, the procedure under the same was initiated in the year 2001 and the RoU vested with the respondent free from all encumbrances in Page 23 of 53 HC-NIC Page 23 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT the year 2002 and there is no question of paying land compensation which has already been paid in the year 200304 and once RoU is vested with the respondent, there cannot be any proceedings under section 3(1) followed by "Section 6(1) of the Act for the very same RoU or payment of land compensation repeatedly, if the RoU is reopened for laying of another pipeline for effective utilization of the already laid pipeline network system.
5.2 Mr. Rakesh Gupta, learned counsel for the respondent - GAIL relied on the affidavit in reply and surrejoinder filed on behalf of the respondent No. 2 and 3 and submitted as under:
[a] After publication of notification under section 6 of the Act, the Right of User (RoU) is totally vested with the Acquiring Body and is deemed to have been free from any encumbrances.
[b] The users' right in the RoU land authorizes the Acquiring Body to lay one or more pipelines through the RoU.
[c] After completion of pipeline laying activities through the RoU land, notices intimating "Termination of Operation" are Page 24 of 53 HC-NIC Page 24 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT issued for facilitating the RoU land owners to continue with the agricultural activities in the RoU land.
[d] The "Termination of Operation" does not mean that the Acquiring Body has surrendered the users' right in the land. The notices of "Termination of Operations" are issued only for informing the RoU land owners that work of constructing pipeline is over and landowners can continue with the agricultural activities in their respective fields. The users right already acquired in all RoU land continues to be vested for maintaining the pipeline(s) or for laying any additional pipelines through the already acquired RoU land.
[e] Therefore the question of issuing fresh notifications under Section 3(i) or 6(i) before laying additional pipeline through the already acquired and vested RoU land does not arise.
[f] There is no revesting of the legal rights, once vested in compliance with the statutory procedures / actions as contemplated in the Act.Page 25 of 53
HC-NIC Page 25 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT [g] The compensation for the land acquired with users' rights is paid at the rate of 10% of the market value of land prevailing at the time when the notification under section 3(i) is issued. It is a payment for establishing the rights to use the land notified and acquired. Notification under section 3(i) is never published ever again for the same land, which has already been acquired with the users' right and duly vested with the Acquiring Body.
5.3 Accordingly, provisions of Sections 7 and 8 of the Act, 1962 read with Rules, 1963 were complied with in the facts of this case that right of user, where the pipeline is being laid was already acquired and vested as early as in the year 2002 with respondent Nos.2 and 3 for which compensation under Section 10(1) as well as Section 10(4) of the Act was paid and later on in the year 2009 notice was issued to lay down a new pipeline in the RoU already acquired and vested with respondents in the year 2002 for which crop compensation under Section 10(1) was paid and also for newly acquired RoU the compensation under Section 10(1) is already paid to the affected parties and, therefore no new procedure is to be followed under Sections 3 and 6 of the Act, 1962.Page 26 of 53
HC-NIC Page 26 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT 5.4 Learned counsel for the respondents have placed reliance on the decision in the case of Ichchapur Industrial Cooperative Society Ltd. v. Competent Authority, Oil & Natural Gas Commission and Anr. [(1997)2 SCC 42] in support of his arguments, submissions and interpretation of words "such pipelines" in various provisions of the Act.
6 Having regard to the facts and circumstances of the case, order passed by the competent authority under the Act and submissions made by learned counsels for the parties, no doubt, GAIL has not challenged the order of competent authority, as on the date. One of the main contentions of the petitioners that notification under Section 3(1) of the Act dated 02.02.2009 and notification under Section 6(1) dated 22.09.2009 ought to have been issued for 30 meters wide strip of land below which pipeline is to be laid and not for 10 meters wide strip of additional land, the respondent - GAIL adheres to action taken of issuance of notice dated 30.11.2009 under Section 8 of the Act with respect to already acquired RoU of land for carrying out the work of laying new pipelines for DVPLII project for which no recourse is to be Page 27 of 53 HC-NIC Page 27 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT undertaken for issuance of Section 3(1) and Section 6(1) notifications for already acquired RoU in the year 2002 for DVPLI project.
6.1 Further, DVPLII project is for laying down new pipelines which is a part of system designed for maximum utilization of pipeline network. The new pipeline along with existing pipeline [HBJ and DVPLI] forms part of capacity utilization for creating a LINE PACK for sustaining the downstream supplies in case of any difficulties at the intake point of the pipeline system. So far as damage, loss or injury sustained by owner / occupier of the land under which the pipeline is proposed for DAVPII, the compensation is already paid. When additional pipelines are to be laid in the lands for which RoU is already acquired, whether additional compensation under Section 10(4) of the Act for loss of right of enjoyment is to be paid or not, is the question to be gone into in juxtaposition to exercise of power under Section 8 of the Act by issuance of notice without following the procedure under Sections 3, 6 and 7 of the Act.
6.2 For proper adjudication of the issue involved in this petition, relevant provisions of The Petroleum and Minerals Pipelines (Acquisition Page 28 of 53 HC-NIC Page 28 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT of Right of User Inland) Act, 1962 are reproduced, as under:
2[a] "competent authority" means any person or authority authorised by the Central Government, by notification in the Official Gazette, to perform the functions of the competent authority under this Act and different persons or authorities may be authorised to perform all or any of the functions of the competent authority under this Act in the same area or different areas specified in the notification;
3. Publication of notification for acquisition [1] 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.
[2] Every notification under subsection (1) shall give a brief description of the land.
[3] The competent authority shall cause the substance of the notification to be published at such places and in such manner as may be prescribed.
Page 29 of 53HC-NIC Page 29 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT
5. Hearing of objections- [1]Any person interested in the land may, within twentyone days from the date of the notification under subsection (1) of section 3, object to the laying of the pipelines under the land.
[2] Every objection under subsection (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard either in person or by a legal practitioner and may, after hearing all such objections and after making such further inquiry, if any, as that authority thinks necessary, by order either allow or disallow the objections.
[3] Any order made by the competent authority under subsection (2) shall be final.
6. Declaration of acquisition of right of user-
[1] Where no objections under subsection (1) of section 5 have been made to the competent authority within the period specified therein or where the competent authority has disallowed the objections under subsection (2) of that section, that authority shall, as soon as may be, either make a report in respect of the land described in the notification under subsection (1) of section 3, or make different reports in respect of different parcels of such land, to the Central Government containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government] and upon receipt of such report the Central Page 30 of 53 HC-NIC Page 30 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT Government shall, if satisfied that such land is required for laying any pipeline for the transport of petroleum or any mineral,] declare, by notification in the Official Gazette, that the right of user in the land for laying the pipelines should be acquired and different declarations may be made from time to time in respect of different parcels of the land described in the notification issued under subsection (1) of section 3, irrespective of whether one report or different reports have been made by the competent authority under this section.
[2] On the publication of the declaration under subsection (1), the right of user in the land specified therein shall vest absolutely in the Central Government free from all encumbrances.
[3] Where in respect of any land, a notification has been issued under sub section (1) of section 3 but no declaration in respect of any parcel of land covered by that notification has been published under this section within a period of one year from the date of that notification, that notification shall cease to have effect on the expiration of that period.
[3A] No declaration in respect of any land covered by a notification issued under subsection (1) of section 3, published after the commencement of the Petroleum Pipelines (Acquisition of Right of User in Land) Amendment Act, 1977 (13 of 1977), shall be made after the expiry of three years from the date of such publication.
[4] Notwithstanding anything contained in subsection (2), the Central Government Page 31 of 53 HC-NIC Page 31 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT may, on such terms and conditions as it may think fit to impose, direct by order in writing, that the right of user in the land for laying the pipelines shall, instead of vesting in the Central Government vest, either on the date of publication of the declaration or, on such other date as may be specified in the direction, in the State Government or the corporation proposing to lay the pipelines and thereupon the right of such user in the land shall, subject to the terms and conditions so imposed, vest in that State Government or corporation, as the case may be, free from all encumbrances.
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 subsection (1) of section 3, was used for residential purposes;
[b] any land on which there stands any permanent structure which was in existence immediately before the said date;
Page 32 of 53HC-NIC Page 32 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT [c] any land which is appurtenant to a dwelling house; or [d] any land at a depth which is less than one meter from the surface;
[i] for laying pipelines for the transport of petroleum, it shall be lawful for any person authorised by the Central Government or such State Government or corporation to use such land for laying pipelines for transporting any mineral and where the right of user in any land has so vested for laying pipelines for transporting any mineral, it shall be lawful for such person to use such land for laying pipelines for transporting petroleum or any other mineral; and [ii] such land shall be used only for laying the pipelines and for maintaining, examining, repairing, altering or removing any such pipelines or for doing any other act necessary for any of the aforesaid purposes or for the utilization of such pipelines.
[2] If any dispute arises with regard to any matter referred to in paragraph (b) or paragraph (c) of the proviso to clause (i) of sub section (1), the dispute shall be referred to the competent authority whose decision thereon shall be final.
8. Power to enter land for inspection, etc.- For maintaining, examining, repairing, altering or removing any pipeline, or for doing any other act necessary for the utilization of the pipelines or for the making of any inspection or measurement for any of the Page 33 of 53 HC-NIC Page 33 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT aforesaid purposes, any person authorised in this behalf by the Central Government, the State Government or the corporation, as the case may be, may, after giving reasonable notice to the occupier of the land under which the pipeline has been laid, enter therein with such workmen and assistants as may be necessary:
Provided that, where such person is satisfied that an emergency exists, no such notice shall be necessary:
Provided further that, while exercising any powers under this section, such person or any workman or assistant of such person, shall cause as little damage or injury as possible to such land.
9. Restrictions regarding the use of land - [1] The owner or occupier of the land with respect to which a declaration has been made under subsection (1) of section 6 shall be entitled to use the land for the purpose for which such land was put to use immediately before the date of the notification under subsection (1) of section 3:
Provided that, such owner or occupier shall not after the declaration under sub section (1) of section 6 -
[i] construct any building or any other structure;
[ii] construct or excavate any tank, well, reservoir or dam; or [iii] plant any tree, on that land.
[2] The owner or occupier of the land under which any pipeline has been laid not Page 34 of 53 HC-NIC Page 34 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT do any act or permit any act to be done which will or is likely to cause any damage in any manner whatsoever to the pipeline.
[3] Where the owner or occupier of the land with respect to which a declaration has been made under subsection (1) of section 6 [a] constructs any building or any other structure, or [b] constructs or excavates any well, tank, reservoir or dam, or [c] plants any tree, on that land, the Court of the District Judge within the local limits of whose jurisdiction such land is situate may, on an application made to it by the competent authority and after holding such inquiry as it may deem fit, cause the building, structure, reservoir, dam or tree to be removed or the well or tank to be filled up, and the costs of such removal or filling up shall be recoverable from such owner or occupier in the same manner as if the order for the recovery of such costs were a decree made by that Court.
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 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 Page 35 of 53 HC-NIC Page 35 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT injury, the amount of which shall be determined by the competent authority in the first instance.
[2] If the amount of compensation determined by the competent authority under subsection (1) is not acceptable to either of the parties, the amount of compensation shall, on application by either of the parties to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, be determined by that District Judge.
[3] The competent authority or the District Judge while determining the compensation under subsection (1) or sub section (2), as the case may be, shall have due regard to the damage or loss sustained by any person interested in the land by reason of [i] the removal of trees or standing crops, if any, on the land while exercising the powers under section 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 subsection (1) of Page 36 of 53 HC-NIC Page 36 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT section 3.
[4] Where the right of user of any land has vested in the Central Government, the State Government or the corporation, the Central Government, the State Government or the corporation, as the case may be, shall, in addition to the compensation, if any, payable under subsection (1), be liable to pay to the owner and to any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such vesting, compensation calculated at ten per cent. of the market value of that land on the date of the notification under subsection (1) of section 3.
[5] The market value of the land on the said date shall be determined by the competent authority and if the value so determined by that authority is not acceptable to either of the parties, it shall, on application by either of the parties to the District Judge referred to in subsection (2), be determined by that District Judge.
[6] The decision of the District Judge under subsection (2) or subsection (5) shall be final.
[emphasis supplied] Rule 4 of the Petroleum and Mineral Pipelines [Acquisition of Right of User in Land] Rules, 1963, reads as under:
Page 37 of 53HC-NIC Page 37 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT "4. Filling of claims for compensation:
[1] Any person interested in any land may file before the Competent Authority a claim for compensation -
[a] for damages by that person by reason of the exercise of the powers conferred by section 4 [i] in case the right of user in the land has not been acquired, within sixty days from the date on which the notification under subsection (1) of Section 3 ceased to have effect, or [ii] in case the right of user in the land has been acquired, within sixty days from the date of publication of the declaration under subsection (1) of section 6;
[b] for damages sustained by that person by reason of the exercise of the powers conferred by section 7, within sixty days from the date of termination of the operations referred to in clause [i] of subsection [1] of that section;
[c] for damages sustained by that person by reason of the exercise of the powers conferred by section 8, within sixty days from the date of termination of the operation referred to in that section;
[d] under subsection (4) of section 10, within sixty days from the date of publication of the declaration under sub section (1) of section 6;
Provided that the competent authority may admit any claim within thirty days after the expiry of the period specified in this Page 38 of 53 HC-NIC Page 38 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT subrule. If he is satisfied that the applicant had sufficient cause for not making the application within such specified period.
Explanation 1: The expression "the date of termination of operation with reference to any area" means -
[a] for the purposes of clause [b], the date of completion of works connected with the laying of pipelines in that area;
[b] for the purpose of clause [c], the date of completion of all, or any of the works referred to in section 8 in relation to the pipelines laid in that area;
Which the Competent Authority may notify in the official Gazette and by beat of drum in the locality, in consultation with the party in whom the right of user in the land in that area has been vested ownership of the pipelines land in that area vests, as the case may be".
[emphasis supplied] In the backdrop of above facts, law in the context of contentions raised by the parties, the competent authority rendered the above decision which is under challenge.
6.3 The Act, 1962 also contain The Petroleum and Minerals Pipelines [Acquisition of Right of User Inland] Rules, 1963 [for short, `the Rules, 1963'] and provide detailed procedure about Page 39 of 53 HC-NIC Page 39 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT filling of claims for compensation under Rule 4 to which we are concerned in this petition.
Other rules prescribe different procedural aspects for publication of various notifications under Sections 3 an 6 of the Act, powers to be exercised under the Act for laying pipelines and carrying out maintenance, repairing, inspection, etc. and factors to be considered for determination of compensation and claim to be decided for loss, damages or injury and procedure of filing application before the competent authority and the District Judge, as the case may be.
Section 3 is about publication of notification for acquisition of the land in public interest for the purpose of laying such pipelines for transport of petroleum or any mineral and it is necessary to acquire the right of user in any land and intention to acquire the right of user therein. Upon hearing objections under section 5 of the Act, declaration of acquisition of right of user is to be made under section 6 of the Act. Upon satisfaction of the competent authority that such land is required for laying such pipeline and on publication of the declaration under subsection (1) of Section 6, the right of user in the land specified therein shall vest absolutely in the Central or State Page 40 of 53 HC-NIC Page 40 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT Government or the Corporation, as the case may be free from all the encumbrances under subsection (2) of Section 6. Once such right of user is vested in the Central or State Government or Corporation under Section 6, it is lawful for the authorized person of such Government to enter upon the land and lay pipelines or to do any other acts necessary for the laying of pipelines under section 7(1)(i) of the Act. That proviso contained in Section 7(1)(i) imposes restriction of usage of such acquired right of user for laying pipelines in the case of residential houses, etc. and the provision further contain dual authorization viz. for laying pipelines for transporting petroleum or any other mineral and also for maintaining, repairing, altering or removing any such pipelines or doing any other act necessary for any of the aforesaid purpose or for the utilization of such pipelines. While Section 8 is about the power of authorized person of Central, State or Corporation, as the case may be to enter land for inspection, etc. which includes, maintaining, examining, repairing altering or removing such pipelines of doing any other work including measurement for the specified purposes. Section 9 is about restrictions regarding use of the land as enumerated therein and Section 10 is pertaining Page 41 of 53 HC-NIC Page 41 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT to compensation for determining damage, loss or injury to any person occupying the land due to powers exercised by the authority under Sections 4, 7 or section 8, as the case may be and further procedure is provided in case if a person is aggrieved by such determination of compensation in the first instance by the competent authority.
Subsection (1) of Section 10 provides for compensation that if any damage, loss or injury sustained to any person interested in the land under which the pipeline is proposed or has been laid by the Government or the Corporation, as the case may be, in exercise of the powers conferred by Sections 4, 7 or 8. The liability arise to pay compensation to such person for damages, loss or injury and it is to be determined by the competent authority in the first instance.
Subsection (2) of Section 10 provides availability of remedy to an aggrieved person against the amount of compensation determined by the competent authority under subsection (1) and if same is not acceptable to either of the parties an application can be preferred before the District Judge.
Under Subsection (3) of Section 10 Page 42 of 53 HC-NIC Page 42 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT certain inbuilt parameters prescribed to give due regard to the damage or loss sustained by any person interested in law by the reasons of [i], [ii] and [iii] of the above subsection.
However, subsection (4) of Section 10 comes into play where right of user of any land is vested in the Central Government, the State Government or the Corporation, as the case may be, and land is vested under Section 6(2) of the Act upon issuance of notification under Section 6(1) and compensation under this subsection is in addition to the compensation, if any, payable under subsection (1) by the Central, the State or the Corporation and liability is fastened to pay such additional compensation to the owner or to any other person whose right of enjoyment in the land has been affected in any manner whatsoever by reason of such vesting.
6.4 The additional compensation is to be calculated at 10% of the market value of the land on the date of notification issued under sub section (1) of Section 3 declaring the intention to acquire the right of user in the land. Therefore, additional compensation is for right of enjoyment of the occupier of the land, which is affected due to vesting of the land and it is distinct from compensation to be paid for any Page 43 of 53 HC-NIC Page 43 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT damage, loss or injury sustained by any person under subsection (1) of Section 10 of the Act. Thus, the compensation for right of enjoyment of the land is determined once and for all the time to come till the right of user of such land exists. The language of subsection (4) of section 10 is unambiguous inasmuch as such deprivation of right of enjoyment of the land has to be by reason of such vesting and land vest into the Government or the Corporation, as the case may be, upon publication of the declaration under subsection (1) of section 6 which prescribe following of procedure, as stated therein. Further, for the determination of additional compensation to be calculated at 10% of the market value of the land provide date of notification under subsection (1) of Section 3 as one of the requirements. Otherwise, for damage, loss or injury sustained by any person interested in the land due to exercise of powers conferred by Sections 4, 7 or 8 by the authority, determination and payment of compensation is available as prescribed under subsection (1) of Section 10 of the Act. That further mechanism against determination of such additional compensation is available to an aggrieved person before the District Judge and the same remain final.
Page 44 of 53HC-NIC Page 44 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT Rule 4 of the Rules, 1963 prescribe procedure to be followed by a claimant for claims for compensation for damages suffered by virtue of exercise of powers under Sections 4, 7 and 8 of the Act by the competent authority and also for additional claim of compensation under Section 10(4) of the Act, 1962. The above Rule and explanation thereto has reference to the "date of termination of operation with reference to any area".
6.5 In the facts of this case, it is not in dispute that new pipelines are laid in the land for which right of user was already acquired after following procedure under Sections 3(1) and 6(1) of the Act, 1962 on 27.08.2001 and 02.02.2002 respectively for laying pipelines qua DVPLI project and the work was completed in the year 2004 and occupiers were allowed to use the land in accordance with law. For the right of user so acquired and vested, the land with the competent authority, compensation was determined for loss, damages and injury under Sections 10(1) as well Section 10(4) of the Act, 1962 and the subject matter about quantum of compensation reached up to this Court. That very strip of already acquired land is again to be utilized for laying pipelines for DAVPII project over and above of newly acquired right of user in the land Page 45 of 53 HC-NIC Page 45 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT of additional 10 meters for which also compensation is determined and paid under Section 10(1) of the Act subject to right of aggrieved person to prefer application under section 10(2) of the Act. The grievance of the petitioners that for usage of their land again for DAVPII project by GAIL, they are to be paid compensation for loss, damage or injury, etc. under Section 10(1) of the Act, further additional compensation under Section 10(4) of the Act to be calculated at 10% of the market value of the land on the date of the notification under subsection (1) of section 3. Likewise, an additional compensation under Section 10(4) of the Act for acquiring right of user for additional strip of width of 10 meters or above land needs to be addressed in the backdrop of provisions of sections 6, 7, 8 and 10 of the Act, 1962. It is not in dispute that for acquiring right of user for additional strip of width of 10 meters of the land, procedure under Section 6(1) of the Act for publication of notification of the gazette has taken place on 02.02.2009 and on 22.09.2009 respectively and compensation is paid under Section 10(1) of the Act, 1962. The above land on which pipelines are to be laid is a part of second phase of development and expansion of DAVPII project. For the strip of land, which was already acquired was also part of DAVPI project, right of user is Page 46 of 53 HC-NIC Page 46 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT totally vested with acquiring body free from all encumbrances upon issuance of notification under Section 6(1) and in view of provisions of Section 6(2) of the Act and the above right of user persists and upon completion of DAVPI project for laying pipelines, etc. through right of user lands , notices were issued only after termination of operation' so that land owners or occupiers could continue their agricultural activities. But that would not mean that acquiring body had surrendered its right to use the land so acquired for laying another pipelines. The vesting of right was complete and free from all encumbrances and land owners and occupiers were paid compensation under Section 10(1) as well as 10(4) of the Act. Thus, no new right of user is acquired qua strip of the land already acquired which is again to be used for laying pipelines for DAVII project.
6.6 A Division Bench of this Court vide order dated 04.03.1995 passed in Letters Patent Appeal No.166 of 1995 in Special Civil Application No.1142 of 1995 taken a view that Notification under Section 6 confers right of user of the land for the purposes of laying pipelines is acquired is not confined only to the laying pipeline, containing petroleum products, but also the right of user of the land for Page 47 of 53 HC-NIC Page 47 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT "purpose of laying pipeline" is acquired by the Government. Even ancillary use of existing pipeline or additional pipelines for the purpose of transporting mineral will be included and vesting of the land will be completely with the acquiring body.
6.7 In the facts of this case, it is not in dispute that for DAVPII and acquiring an additional 10 meters or more land compensation, as envisaged under Section 10(1) towards damage, loss or injury is already paid to the petitioners for which no grievance arise at this stage subject to Section 10(2) of the Act, 1962. The facts of the case also reveal that laying of pipeline by the respondent - GAIL for which no notification is issued under Sections 3 or 6 of the Act is the same piece of land viz. earlier acquired for use of land by following due procedure under Section 3 as well as Section 6 in the year 2002, etc. and now pipelines are to be laid in the same piece of acquired land for second phase of DAVPII project in addition to 10 meters of newly acquired RoU for which procedure under sections 3 and 6 of the Act already followed.
6.8 The usage of word `pipelines' in the objects and reasons and in preamble to the Act Page 48 of 53 HC-NIC Page 48 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT and other provisions read with decisions of the Apex Court in the case of Ichchapur Industrial Cooperative Society Limited [supra] abundantly make it clear that it would be permissible for the acquiring body to carry petroleum or mineral, as the case may be through any other pipeline without any further notification or declaration under Section 3 or Section 6 of the Act.
6.9 The above decision of the Division Bench of this Court was challenged before the Apex Court, wherein the Apex Court Apex held that definition of mineral includes water, but at the same time in para 29 the Apex Court endorsed the view taken by this Court in holding that carrying of `water' through the new pipelines would be an act for the utilization of the pipeline within the meaning of Section 7 of the Act, and therefore, permissible. In the facts of this case development of the Project DVPLII is in furtherance and expansion of DVPLI and laying down pipelines for such purpose and acquiring right of user under the Act for which no additional compensation envisaged under Section 10(4) is to be paid for already acquired RoU and vesting since the whole project under the Act is a project of national importance and in case if any inconvenience is caused to any individual, same is to yield to the national interest.
Page 49 of 53HC-NIC Page 49 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT 6.10 In the case of Surat Singh & Ors. V. Union of India & Ors. [(2010) ILR 1 Punjab and Haryana 868], a Division Bench of Punjab & Haryana High Court also considered similar situation and considering the provisions of the Act, 1962 negated the contentions of the petitioners that another acquisition procedure is required to be completed for user of land viz. such lands are already stand acquired and held that once the right of user stands acquired, the land owners are not entitled to another compensation for acquisition of right of user over the same land.
6.11 In view of the above law as on date, it is clear that the acquiring body / competent authority was not legally bound to follow gamut of Sections 3, 6 and 7 of the Act, 1962 so far as strip of land of DAVPI project for which right of user was already acquired in the year 2002 vested free from all encumbrances for the project DAVPI and compensation under section 10(1) as well as Section 10(4) was paid. The very right of user qua earlier acquired land of DAVPI continues and still subsist is to be used as a part of system designed for maximum utilization of the pipeline network which forms part of capacity utilization for creating a Line Pack for Page 50 of 53 HC-NIC Page 50 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT sustaining the downstream supplies in case of any difficulty at the intake point of the pipeline system. The right of user so acquired for such land is not surrendered and possession of the land was given after termination of operation of DAVPI project. Therefore, no compensation is to be paid to owners / occupiers of the land, which was earlier acquired for DAVPI project as the laying of pipelines will be on the land for which right of user is already acquired and land has vested free from all encumbrances.
6.12 We are not impressed by arguments of Shri Rakesh Gupta, learned counsel for the GAIL that additional compensation under section 10(4) is onetime payment so far as acquiring new RoU qua 10 meters or more strip of land is concerned. The above contention may hold good in a case where RoU already continues and subsists and for analogous purpose pipelines are to be laid so as to facilitate further extension or development of the project. But actually, whenever new right of user is acquired of the land for which procedure is to be followed of the Act, 1962 compensation to be determined and paid for loss, damage or injury while exercising power under sections 4 and 7 or 8 of the Act and additional compensation so prescribed under Section 10(4) has to be paid by following method of calculation prescribed Page 51 of 53 HC-NIC Page 51 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT therein. Therefore, land owners / occupiers, who have suffered loss, damage or injury by virtue of exercise of powers under Sections 4, 7 and 8 of the Act, 1962, are entitled for compensation to be paid as per section 10(1) as well as Section 10(4) of the Act. For acquiring additional strip of 10 meters or more strip of land, petitioners were already paid compensation under section 10(1) of the Act subject to their right to prefer application under Section 10(2) of the Act. Therefore, we hereby declare that petitioners, who are already paid compensation for loss, damage or injury under Section 10(1) of the Act are entitled to loss of right of enjoyment over the newly acquired land of 10 meters or more strip of land under Section 10(4) of the Act and the competent authority is to determine such compensation within prescribed time limit in accordance with law. In view of clear language of Section 7 of the Act and issuance of notice dated 30.11.2009 under Section 8 qua earlier acquired land, which forms part of DAVPI no illegality is committed by GAIL and petitioners are entitled to receive additional compensation under Section 10(4) for newly acquired strip of 10 meters or more land and impugned order passed by the competent authority under challenge modified to the extent above.
Page 52 of 53HC-NIC Page 52 of 53 Created On Sat Sep 10 02:43:16 IST 2016 C/SCA/5948/2011 CAV JUDGMENT 7 In view of the above discussion, this petition is partly allowed. Rule is made absolute to the aforesaid extent only.
(ANANT S.DAVE, J.) (G.B.SHAH, J.) pvv Page 53 of 53 HC-NIC Page 53 of 53 Created On Sat Sep 10 02:43:16 IST 2016