Punjab-Haryana High Court
M/S Shivam Infratech Private Limited ... vs Union Of India And Others on 21 December, 2009
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.16532 of 2009 (O&M)
Date of decision: 21st December, 2009
M/s Shivam Infratech Private Limited and another
... Petitioners
Versus
Union of India and others
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Ashok Aggarwal, Senior Advocate with
Mr. Adarsh Jain, Advocate for the petitioners.
Dr. Anmol Rattan Sidhu, Assistant Solicitor General of India
with Mr. Onkar Singh Batalavi, Standing Counsel
for respondents No.1 to 3.
Mr. Sunil Nehra, Sr. Deputy Advocate General, Haryana
for respondents No.4 and 7.
Mr. Arun Walia, Advocate for respondents No.5 and 6.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
By this common order, two writ petitions, viz. amended Civil Writ Petition No.16532 of 2009 titled 'M/s Shivam Infratech Pvt. Ltd. and another v. Union of India and others' and Civil Writ Petition No.18173 of 2009 titled 'Vatika Limited and others v. Union of India and others' shall be decided together.
Petitioners are companies registered under the Companies Act and they are real estate developers and have been granted license by the State of Haryana to develop commercial and residential colonies. The area of activity for the present writ petitions pertains to Khasra No.315, 319, 2482/320/2/1/2/1/1, 2482/320/2/2/1/1, 548/1/1, 308, 318/2, 314/2, 304/2/2 situated in the revenue estate of Shikohpur, Tehsil and District Gurgaon, where they intended to set up residential colonies. To be Civil Writ Petition No.16532 of 2009 (O&M) 2 precise, the dispute pertains to land falling within Khasra No.318/2 and
319. Petitioners have impleaded Union of India through its Secretary, Ministry of Petroleum & Natural Gas; M/s Gas Authority of India Limited (hereinafter referred to as 'GAIL') through its Managing Director; State of Haryana through Commissioner and Secretary, Department of Town and Country Planning; Haryana Urban Development Authority and the Director, Town and Country Planning Haryana as respondents, and made a prayer that this Court should issue a writ in the nature of certiorari and quash the action of respondents No.1 and 2, i.e. Ministry of Petroleum & Natural Gas and GAIL to lay gas pipe line in the land owned and possessed by the petitioners, as the same is contrary to minutes of the meeting (Annexure P-1) (reproduced in later part of the judgment) held on 28th May, 2009 and letter issued by the District Town and Country Planning, Gurgaon dated 5th August, 2009 (Annexure P-11). A further prayer made in the writ petition is that a writ in the nature of mandamus be issued directing the respondents to re-route the gas pipe line through the green belt instead of residential sectors, to be specific, from the area demarcated for public utility services.
The Planning Commission and Ministry of Petroleum & Natural Gas, in the larger public interest, felt the necessity to provide natural gas through gas pipe line to the entire India by establishing gas pipe line grid. Gas pipe line is to be laid in a phased manner for multiple purposes. The gas pipe line, which is being laid and made subject matter of present writ petition, is to pass through Chainsa - Gurgaon - Jhajjar - Hissar. Needless to say, with the laying of gas pipe line, there will be overall development of this region. It will give impetus to industry and transportation sector, leading to generation of employment and overall prosperity of the State. Not only will it improve the fiscal health of the Civil Writ Petition No.16532 of 2009 (O&M) 3 State, but also swell collection of taxes for the State. Natural gas is to be used for city gas supply to cater to need of domestic customers. It is also likely to change the way of life of the residents around the gas pipe line. Natural gas is an alternative fuel to the present day for petroleum consumption. It is not only environmental friendly, but has got less operational hazards. Use of Compressed Natural Gas (CNG) in Delhi shows that it has curtailed the pollution and this gas is commonly termed as green fuel.
Government of India, on 15th September, 2008, issued notification (Annexure A) under Section 3 (1) of [The] Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (50 of 1962) (hereinafter referred to as, 'the 1962 Act'). This notification, as per the statute prescribed, called for interested persons to file their objections within 21 days. As a consequence to the notification (Annexure A) issued on 15th September, 2008, another notification (Annexure B) was issued by the Government of India on 5th February, 2009 under Section 6(1) of the 1962 Act. It was specifically stated in that notification that the objections received from the public to the laying of the gas pipe line have been considered and disallowed by the competent authority. Under sub section (4) of section 6 of the 1962 Act, Government of India intended to acquire rights of user in land for laying the gas pipe line. Admittedly, no objections were filed by the petitioners, HUDA and State of Haryana which includes Department of Town and Country Planning Haryana. It is also not disputed that petitioners have been granted license No.258 of 2007 on 19th November, 2007 by the Department of Town and Country Planning, Haryana for developing the land in dispute and other adjoining lands in total area measuring 6 acres for setting up commercial/residential colonies. In addition to the above, a letter of intent for setting up Civil Writ Petition No.16532 of 2009 (O&M) 4 commercial colony over the area measuring 3.66 acres besides the area of 6 acres had also been issued in favour of the petitioner Companies.
It is asserted by the petitioners in the present petition that they came to know about laying of the proposed gas pipe line on 23rd January, 2009 and they submitted representation to Chief Administrator, HUDA. The first representation submitted by the petitioners is annexed as Annexure P-6 with the present writ petition. It was pleaded therein that taking into consideration safety, maintenance, operation and planning of infrastructure, it is incumbent that the activities of the respondent GAIL be immediately stopped, as the petitioners have been issued valid licenses by the Director, Town and Country Planning. It was also stated that for re- routing of the gas pipe line, a proposal is enclosed and same be sent to the competent authority nominated by M/s Gas Authority of India Limited. As a follow up of the representation submitted by the petitioners, the Chief Administrator, HUDA (Town Planning Wing), Panchkula, on 8th April, 2009, vide Annexure P-7, forwarded a copy of the representation submitted by the Vice President (Infrastructure) of the Company to the Administrator, HUDA, Gurgaon and District Town Planner, Gurgaon. It is after the petitioners have taken up the case for re-routing of gas pipe line, that they got support from various other developers in Gurgaon city, namely DLF Limited and Bestech Ltd., Orris Limited, Uppal Developers and Luxer Developers. At the initiative of HUDA, the matter was taken up with GAIL for re-routing and a meeting to this effect was held at Manesar Camp, which was attended by the officials of HUDA, Director Town and Country Planning, Haryana, members of GAIL including K.L. Bishnoi competent authority nominated under the 1962 Act. The entire edifice of the petitioners' case is built around the minutes of the meeting (Annexure P-1) held on 28th May, 2009, which was attended by the various officials, Civil Writ Petition No.16532 of 2009 (O&M) 5 who have been named above. It will be apposite here to reproduce the entire minutes of the meeting:
"Minutes of meeting held at Manesar Camp with builders who approached GAIL for re-routing of CJPL pipeline between CH 53 to CH 62.
Members presents
GAIL Builders HUDA/DTP
Mr. M.V.Iyer, DGM Mr. U.C. Shrivastava Mr. Ved Parkash
(Projects) - Vatika
Mr. A.Kumar CM Mr. Munish Sharma ATP o/o
(PE) - Bestech
Mr. S.N. Yadav CM Col. S.K. Deswal DTP (Projects),
(PE) DLF Gurgaon
Mr. K.L. Bishnoi, CA Mr. Kapil Nandu -
Bestech
Mr. N.L. Arora -
Orris
Mr. Sunil Srivastava
- Uppal
Mr. Rakesh Uppal -
Luxor
Subsequent to meeting held on 25.5.09 at GAIL
Corporate office chaired by GM(Project), a follow up meeting held at Manesar Camp on 28.5.2009 for amicably deciding new route agreed to all present members subject to approval of HUDA/DTCP GAIL observed that proposed rerouting involved additional cost to GAIL, the same will be put up to GAIL management to amicably allow the passage of pipeline. It was agreed that a proposal for new corridor will be put up to DTCP within a week time indicating existing route and the proposed route as marked on in map enclosed.
For taking the approval of from HUDA/ DTCP Mr.U.C. Shrivastava of Vatika and Mr. Munish Sharma of Bestech and Mr.K.L. Bisnoi, CA GAIL will extend all help. However, if required Mr.Anil Kumar CM(PE) and DGM (Projects) GAIL will Co-ordinate for same." (Reproduction of Annexure P-1) To pursue the minutes of the meeting held on 28th May, 2009, on the very next day, i.e. 29th May, 2009, M.V. Iyer, DGM (Projects) Civil Writ Petition No.16532 of 2009 (O&M) 6 submitted a proposal (Annexure P-8) to the Director, Town and Country Planning, Haryana, Sector 18, Chandigarh. The subject of Annexure P-8 stated that no objection certificate is required for re-routing of Chainsa -
Gurgaon - Jhajjar - Hissar natural gas pipe line of GAIL in Sector 77, 78, 82, 82A, 86, 90, 93 and 95 located at Gurgaon. This letter stated that gas pipe line project is being implemented in time bound manner and is targeted to be completed by November/December, 2009. The completion of the project will facilitate transport of natural gas, a green fuel and same will generate electricity/power to the tune of 7000 MW. It further noticed that all necessary statutory obligations were performed by GAIL by issuing a notification under Section 3(1) and section 6(1) of the 1962 Act. They had also notified the competent authority for awarding compensation for acquisition of right of use and the competent authority is in the process of disbursing compensation to all aggrieved persons. The following portion of the request submitted by the DGM (Projects), GAIL is necessary to be reproduced:
"On the directives issued by Chief Administrator HUDA office vide CA letter No.CTP/DTP(N)/KM/2471 dated 8.4.09, addressed to Administrator HUDA and DTP Gurgaon, joint meetings were organized at corporate office of GAIL (India) Limited, chaired by General Manager (Projects) of GAIL.
Based on above, another meeting was organized by GAIL on 28.5.2009 with all land license holders issued by DTCP, Haryana which has also been attended by Mr.Ved Prakash, ATP, Town Planning Department Gurgaon. A copy of minutes of meeting (MOM) dated 28.5.2009 is enclosed for ready reference.
Location of Natural Gas pipeline with existing and proposed duly marked on 2021 urban complex plan along with road section clearly showing the location of pipeline centre at a depth of 2 meters on the road proposed in drawing is enclosed for ready reference.Civil Writ Petition No.16532 of 2009 (O&M) 7
An advance copy is being sent to the administer HUDA Gurgaon with a request to carry out the feasibility study on the proposal to you at the earliest.
It may please be noted that by re-routing the Natural Gas pipeline, an extra length of pipe 1.2 kms is likely to be incurred which GAIL authorities are willing to opt sanction from there top management subjected to NOC/ approvals approved by you.
As regards norms of minimum 30 meters width area required, subjected to various technical reasons/justifications, GAIL is willing to accommodate in less width area, if allocated on the proposed re-route proposed/attached.
You are requested to give NOC for re-routing of Chainsa - Gurgaon - Jhajjar - Hissar Natural Gas Pipeline of GAIL in Sector 77, 78, 82, 82A, 86 90, 93 and 95 located at Gurgaon, so that pipeline at the earliest.
Further to the above, we shall be grateful, if an appointment is given on 3.6.2009 or 4.6.2009 for explaining in person for facilitating speedy progress.
Thanking you, Yours faithfully, Sd/-
(M.V. Iyer) DGM (Projects)"
Along with Annexure P-8, a site plan was attached, which shows already planned gas pipe line and re-routing envisaged. The already planned gas pipe line is shown in the black colour and re-routing in the red colour having various bends. What is the effect of the bends, shall be dealt with later.
On July 8, 2009 again, GAIL wrote a letter to the Administrator, HUDA stating that regarding the re-routing, a feasibility report has been submitted and the same be sent forthwith to the Director, Town and Country Planning, Haryana/Chief Administrator HUDA for the necessary approval to facilitate issuance of NOC to M/s Gas Authority of India Limited. This communication was further sent by Director, Town and Civil Writ Petition No.16532 of 2009 (O&M) 8 Country Planning, Haryana, Chandigarh to the District Town Planner, Gurgaon vide Annexure P-10. On 5th August, 2009, District Town Planner, Gurgaon communicated to GAIL that the proposed route of gas pipe line should be through the green belt as shown in the red colour on the copy of master plan and sought alignment to be demarcated on the copy of sajra plan.
From the pleadings of the petitioners, precise reason as to how the proposal to re-route the gas pipe line fell, cannot be spelt out. However, the respondent GAIL in its written statement, has stated that due to non-issuance of consent by the State of Haryana, GAIL without waiting further has executed and almost completed the work as per the original route.
The stand of the respondent GAIL is that since the grant of NOC was causing huge delay, therefore, to protect their interests they had proceeded ahead with execution of the gas pipe line.
Dr. Anmol Rattan Sidhu, appearing for the Union of India, has drawn my attention to Annexure R-1, where it has been stated that GAIL, which was executing agency for Government of India, had furnished irrevocable bank guarantee of Rs.20.00 crores or 2% of the project outlay in favour of the Government encashable in case of delay. Therefore, the stance of the respondents is that to protect their financial and commercial interests, they proceeded with the laying of the gas pipe line.
Though the arguments will be noticed later, but to have the continuity of facts, it will be pertinent to notice that during course of arguments, Dr.Anmol Rattan Sidhu had stated that laying of the gas pipe line started from the both ends, therefore, to change the route in the midway was not feasible. This assertion of Dr.Sidhu has been objected by Mr.Ashok Aggarwal, Senior Advocate, appearing for the petitioners, on the ground that this is nowhere part of the pleadings and has been stated only Civil Writ Petition No.16532 of 2009 (O&M) 9 to sway the Court. Annexure R-2 reveals that out of the total length of 70 km of the gas pipe line, all the gas pipe line has been laid except for a length of 1.25 km, which is to be laid at the disputed area.
Time to notice the arguments advanced and the rival submission made.
It has been urged that Punjab Scheduled Roads and Controlled Area (Restriction of Unregulated Development) Act, 1963 (hereinafter referred to as, 'the 1963 Act') received assent of the President on 22nd November, 1963 and was published in the Punjab Government Gazette (Extraordinary) Legislative Supplement on 13th November, 1963. This Act was enacted with the purpose to control haphazard growth of the urban areas and to regulate development activities pertaining to overall growth of urban planning. Whereas, the Petroleum and Minerals Pipelines (Acquisition of Rights of User in Land) Act, 1962 (50 of 1962) was notified on 7th December, 1962. It is submitted that on 11th July, 2006, Government of Haryana had drawn a draft development plan for Gurgaon Manesar Urban Complex and the final development plan 2021 AD for Gurgaon Manesar Urban Complex was notified on 5th February, 2007, much prior to the issuance of notification under Section 3(1) of the 1962 Act. The notification was issued on 1st April, 2008. It is contended that if any gas pipe line is to be laid, it must be in consonance with the master plan published by the State of Haryana. The master plan has been annexed with the present writ petition as Annexure P-12.
Mr. Ashok Aggarwal has taken me through the various provisions of the master plan (Annexure P-12). An explanatory note on the final development plan 2021 AD for the controlled area of Gurgaon - Manesar Urban Complex states that Gurgaon - Manesar Urban Complex is known for automobile industries, modern commercial malls, towers of cyber parks, software development, air port and it is situated at a distance Civil Writ Petition No.16532 of 2009 (O&M) 10 of 4 km from the Indira Gandhi International Airport. Due to software development and its close proximity to Delhi, it has also acquired numerous cyber parks. The master plan was envisaged to accommodate 22 lakh of population. The master plan has divided the proposed land use to following 12 categories:
Serial No. Land Use Area (in Hectare)
1 Residential 14930
2 Commercial 1404
3 Industrial 5441
4 Transport and Communication 4231
5 Public Utilities 564
6 Public and Semi public use 1630
(Institutional)
7 Open Spaces 2675
8 Special Zone 106
9 Defence Land 633
Total Area 31614
10 Special Economic Zone 4570
11 Existing Town 406
12 Village Abadies 428
Grand Total 37069
For overall purposes, it will be necessary to notice that for public utilities, the master plan has reserved 564 hectare of land in Sectors 100, 101 and 107. The definition clause II (m) defines 'non- conforming use' and the same reads as under:
"(m) 'Non-conforming use' in respect of any land or building in a controlled area means the existing use of such land or building which is contrary to the major land use specified for that part of the area in the development plan;"
In Appendix A, 'Public Utility' includes gas installation and gas work along with water supply installation including treatment plants, drainage and sanitary installation including disposal works and electric power plants substation etc. Mr. Ashok Aggarwal has further referred to Appendix B to state that for public utilities, sites have been earmarked in the sector site Civil Writ Petition No.16532 of 2009 (O&M) 11 plan. A further reference to VII. (v) Open Spaces of Appendix B states that public utility services, like transmission lines, communication lines, water supply lines in the green belts along the scheduled roads and major roads are the sites approved by the Director, Town and Country Planning, Haryana.
It is submitted that once the master plan was notified, it was known to public at large, therefore, anybody who has to carry any activity, at first instance has to obtain no objections from the authority envisaged under the 1963 Act or can only use the area which has been specified for the activity to be carried by any concerned.
After having advanced his arguments, Mr.Ashok Aggarwal has formulated the following four questions for consideration of the Court:
1. State legislature, having exclusive plenary jurisdiction to enact laws in respect of entries mentioned in the State List (List - II) of Seventh Schedule, whether any enactment by the Union can denude the State of its powers qua the field exclusively occupied by the State. In other words, whether the 1962 Act is in conflict with the 1963 Act, which received assent of the President, or not, especially with reference to Article 254(2) ?
2. Whether the Court giving wider scope and amplitude to the language of the entries in the List - I, II and III, considering the object, pith and substance of the 1963 Act and the 1962 act, reconcile and harmonize the provisions of the two acts or not ?
3. Whether the competent authority under the 1962 Act is bound to act in consonance with the Development Plan (Master Plan) (hereinafter referred to as, 'the Plan') under the 1963 Act notified or not ? If so, whether the competent authority Civil Writ Petition No.16532 of 2009 (O&M) 12 was not under the legal obligation to seek relaxation under Section 7(a) of the 1963 Act ?
4. Whether the respondent GAIL, having agreed to re-routing of gas pipe line vide Annexure P-1 and having submitted to the jurisdiction of the Director, Town and Country Planning by filing applications (Annexure P-8 and P-9), wriggle out of the same or by its own conduct suffer from promissory estoppel.
Mr. Ashok Aggarwal, Senior Advocate, appearing for the petitioners, while dilating questions No.1 and 2, had referred to entry No.53 of List - I, i.e. Union List of the Seventh Schedule of the Constitution of India. The same reads as under:
"53. Regulation and development of oil fields and mineral oil resources; petroleum and petroleum products; other liquids and substances declared by Parliament by law to be dangerously inflammable."
To fortify his arguments, he has also referred to entry No.18 in the List II - State List given in the Seventh Schedule of the Constitution of India. Entry No.18 reads as under:
"18. Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization."
It will be necessary to notice entry No.35 of List - II, i.e. State List, entries No.20 and 42 of List - III, i.e. Concurrent List of the Seventh Schedule of the Constitution of India. These entries are reproduced as under:
"List II - State List
35. Works, lands and buildings vested in or in the possession of the State.Civil Writ Petition No.16532 of 2009 (O&M) 13
XXXX XXXX XXXX
XXXX
List III - Concurrent List
20. Economic and social planning.
42. Acquisition and requisitioning of property."
It has been contended by counsel for the petitioners that the 1963 Act, which received assent of the President on 22nd November, 1963, was enacted with the object to prevent haphazard and sub-standard development along the scheduled roads and in the controlled area of the State of Haryana. As noticed earlier, the Plan was passed on 5th February, 2007. The area from which the gas pipe line is to pass is owned and possessed by the petitioners. In the Plan, this area is earmarked for residential and commercial colony. Notification (Annexure A) dated 15th September, 2008 under Section 3(1) of the 1962 Act was notified after publication of the Development/Master Plan and issuance of the license to the petitioners for development of residential and commercial colonies. Therefore, act of respondent Union of India to lay gas pipe line without permission entrenches upon the exclusive power of the State to plan, develop houses, buildings and lands. Town and Country Planning is domain of the State Government. Counsel for the petitioners has relied upon 'Central Coalfields Ltd. v. State of M.P. and others' 1995 (2) SCC 11 to support above noticed contention. A reference has been made to a Division Bench judgment of this Court rendered in 'Rajinder Prashad v. State of Haryana' 1996 AIR (Punjab) 102 to highlight object of the 1963 Act. Para 6 of the judgment reads as under:
"6. The Act of 1963 has been enacted by the Legislature of the State of Punjab to prevent haphazard and sub-standard development along scheduled roads and in controlled areas in the State of Punjab. This Act received the assent of the President of India on 22nd November, 1963.Civil Writ Petition No.16532 of 2009 (O&M) 14
After the creation of the State of Haryana, with effect from 1.11.1966, the Act has been made applicable to the State of Haryana. Section 2 of Act contains definitions of various terms and phrases used in the Act. Section 4 of the Act of 1963 speaks of declaration of controlled area and Section 5 relates to the publication of plans etc. showing the controlled area and nature of restrictions etc. Section 6 restricts the erection or re-erection of buildings etc. in controlled areas except in accordance with the plans and the restrictions and conditions referred to in Section 5. Previous sanction of the Director is also necessary for erection/re-erection of the buildings. Section 7 contains prohibition on the use of land in the controlled areas. Section 8 contains provisions regarding application for permission and the grant or refusal thereof. Section 9 empowers the Director to authorize any person to enter into or upon any land or building with or without assistants for the purpose of inquiry, inspection, measurement or survey or taking levels. Section 10 provides for appeals against the order passed under Section 8(2) of the Act. Sections 12 to 16 deal with the offences and penalties. Section 22 speaks of exemptions. In exercise of the powers vested in it under Section 25, the Government has framed the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Rules, 1965. These rules contain detailed provisions for carrying out the purpose of the Act. Part VII contains Rules 38 to 125 regarding construction of buildings etc."
Furthermore, it has been urged that entry No.18 describes exclusive powers in the State Legislature in respect of rights in and over the land etc. and entry No.35 vests jurisdiction in the State Legislature to enact laws in relation to works, lands and buildings within the territory of the State. Thus it is incumbent upon the Union Government to adhere to the blue print adopted by Department of Town and Country Planning. To draw support in favour of this contention, a judgment of Division Bench of this Court rendered in 'United Riceland Ltd. v. State of Haryana and Civil Writ Petition No.16532 of 2009 (O&M) 15 others' 1998 (1) PLJ 462 has been cited. It will be apposite here to reproduce relevant portion of the judgment:
"31. In Jagannath Baksh Singh v. State of U.P. (supra); L.Jagannath v. Authorised Officer Land Reforms, Madurai and another, AIR 1972 S.C. 425; and Madhukuri Venkatarao and others v. State of Andhra Pradesh and another, AIR 1975 A.P. 315 (FB); it has been held that entry 18 confers the widest power on the State Legislature with regard to rights in or over the land and the word land occurring in that entry should be given the widest meaning so as to include not only agricultural but non-agricultural lands.
The same view has also been expressed in Jilubhai Nijbhai Khachar and others v. State of Gujarat and others (supra). Therein the Supreme Court approved the definition of meaning of land given in Black's Law Dictionary (Sixth Edition) according to which the land means "in the most general sense, comprehends any ground, soil or earth whatsoever, including rocks. "Land" may include any estate or interest in lands, either legal or equitable, as well as easements and incorporeal hereditaments". Technically, land signifies everything comprehending all things of a permanent nature, and even of an unsubstantial provided they be permanent. Ordinarily, the term is used as descriptive of the subject of ownership and not the ownership. Land is the material of the earth, whatever may be the ingredients of which it is composed, whether, soil, rock, or other substance, and includes free or occupied space for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted by law.
32. The 1963 Act, as already mentioned above, has been enacted to prevent haphazard and sub-standard development along scheduled roads and in controlled areas in the State. A comprehensive analysis of the various provisions of this Act show that it restricts and regulates the erection and re-erection of buildings along scheduled roads. This has been done with a view to check unauthorized construction and encroachment on land forming the part of Civil Writ Petition No.16532 of 2009 (O&M) 16 the scheduled road and also to regulate the building line all along on the scheduled roads so that free flow of traffic is not hampered and future development on the roads within the State can be undertaken without requiring large scale demolition of buildings etc. The object of declaring a particular area to be controlled area under Section 4 of the Act is not only to act, control and regulate the development of industrial and residential areas but to prevent construction of buildings in and around public institutions like schools etc., ancient and historical monument. Provisions for roads, open spaces, gardens, recreation grounds, markets etc. have been made with a view to provide all amenities in the residential localities, to avoid traffic congestion and to make the residential area self-sufficient in all respect. Prohibition on change of land use is also intended to achieve these objectives. It is, therefore, evident that the primary object of 1963 Act is to regulate over all development of the areas within the State and to prevent encroachments and to check unwarranted growth of buildings along the scheduled roads so that future development is not hampered. No doubt, some of the scheduled roads form part of the national highways and, therefore, the provisions containing restriction on the erection or re-erection of buildings etc. along the scheduled roads apply to the national highways also but on that account alone the 1963 Act cannot be declared to be ultra vires to the legislative competence of the State because otherwise the Act does not fall in any of the entries of List I."
Having taken into consideration the above said arguments, which have been very well elucidated with the support of judicial pronouncements, it will be necessary to notice the object of the 1962 Act. Statement of Objects and Reasons of the 1962 Act reads as under:
"Statement of Objects and Reasons:
As a result of the implementation of plans for the development of petroleum resources in the country, it is anticipated that in the next few years there will be a substantial increase in the production of crude oil, natural gas Civil Writ Petition No.16532 of 2009 (O&M) 17 and petroleum products by the public sector oilfields and refineries in India. It has therefore become necessary to lay petroleum pipelines in the country to serve as an efficient and cheap means of transportation and distribution of petroleum and petroleum products.
2. Although land can be acquired outright for laying such pipelines under the Land Acquisition Act, 1894 the procedure for such acquisition is long-drawn and costly. Since the petroleum pipelines will be laid underground, outright acquisition of land is not necessary. Therefore, in the case of these pipelines it is considered sufficient to acquire the mere right of user in the land for laying and maintaining the pipelines. The Bill seeks to achieve the above purpose.
3. The main features of the Bill are -
(i) No right of user of land can be acquired for the purpose of laying pipelines unless the Central Government declares its intention, by notification in the Official Gazette, and unless objections, if any, filed within twenty-one days of that notification are disposed of by the competent authority.
(ii) When final declaration about acquisition is made the right to use land for the purpose of laying pipelines will vest in the Central Government, State Government or the corporation, as the case may be but notwithstanding such acquisition, the owner or occupier of the land shall be entitled to use the land for the purpose for which such land was put to use immediately before the declaration by the Central Government. But after the date of acquisition he shall not construct any building or any other structure or construct or excavate any tank, well, reservoir or dam or plant any tree, on that land.
(iii) Compensation for the damage, loss or injury sustained by any person interested in the land shall be payable to such person. Besides this, compensation calculated at ten percent of the market value of the land on the date of the preliminary notification is also payable to the owner and to any other person whose right of enjoyment in the land has been affected by Civil Writ Petition No.16532 of 2009 (O&M) 18 reason of the acquisition. The compensation in both cases is to be determined by the competent authority in the first instance and an appeal lies from its decision to the District Judge."
Section 2 - 'Definitions' clause (ba) defines 'minerals'. The definition of 'minerals' and 'petroleum' reads as under:
"2. (ba) "minerals" have the meanings assigned to them in the Mines Act, 1952, and include mineral oils and stowing sand but do not include petroleum,
(c) "petroleum" has the same meaning as in the Petroleum Act, 1934, and includes natural gas and refinery gas;"
Section 3 empowers the Central Government to issue Notification for acquiring right of user in the land in the public interest for the transport of petroleum or any minerals from one locality to another by laying pipe lines. Section 4 empowers the Government, after issuance of Notification, to enter and carry survey. Section 5 of the Act provides mechanism for inviting and deciding objections. After the objections are dealt with under Section 6 - Declaration of Acquisition of Right of User, Notification is to be issued. Section 7 vests power in the Central and the State Government to enter upon the land and lay pipe line over the land, for which Notification under Section 3(1) and subsequent thereto, Notification under Section 6 was issued. Proviso to Section 7 binds the acquiring Government not to lay pipe line on any land which was used for residential purposes or where any permanent structure stands or is in existence or any land which is appurtenant to the dwelling house. It will be apposite here to reproduce Section 7 of the 1962 Act, which reads as under:
"7. Central Government or State Government or corporation to lay pipelines - (1) Where the right of user in Civil Writ Petition No.16532 of 2009 (O&M) 19 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 authorized 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) any land on which there stands any
permanent structure which was in
existence immediately before the said
date;
(c) any land which is appurtenant to a dwelling
house; or
(d) any land at a depth which is less than one
metre from the surface.
(ia) for laying pipelines for the transport of petroleum, it shall be lawful for any person authorized 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, reparing, 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."Civil Writ Petition No.16532 of 2009 (O&M) 20
Section 10 provides for compensation to be paid to the person to whom any damage, loss or injury is caused or whose interest suffered because of laying of the gas pipe line.
Thus, it is apparent from the objects and reasons, from construction and proper ascertainment of the provisions that power to acquire the land use is derived from entry No.42 of the List - III, to give effect to power exclusively vested in Union because of entry No. 53 of List - I. During course of arguments, this Court has drawn attention of the counsel for the parties to entry No.20 of List - III "Economic and Social Planning" to say that both the 1962 Act and the 1963 Act vest legislative competence in Union and State Government to enact these two laws to advance goal of economic and social planning which is the need of the hour. To analyse these, it will be necessary to notice what these two acts intend to achieve.
Planning Commission of India published a report of the working group on petroleum and natural gas sector for the XI Plan (2007- 2012). This paper states that:
"Efficient, reliable and competitively priced energy supplies are prerequisites for accelerating economic growth. For any developing country, the strategy for energy development is an integral part of the overall economic strategy. Efficient use of resources and long-term sustainability remains core objective of economic planning. Sustainability would take into account not only available natural resources and issues related to ecological balance but also established delivery mechanisms, the technological constraints that are prevalent in the system and immediate compulsion to meet the priority needs of the economy, economic equity and self-reliance."Civil Writ Petition No.16532 of 2009 (O&M) 21
In this context, it is to be noted that natural gas is a source, which is assessable, easily available, socially acceptable and environment friendly. The Government of India has granted top priority to creating sustainable transportation system through cross-country crude oil and petroleum product pipelines in the next few decades, with the objective of preserving environment and protecting human health. Furthermore, qua laying of the pipe line, the Planning Commission has committed itself as under:
Increasing the coverage of pipelines throughout the country.
Leveraging the inherent advantages of using pipelines to transport products and enhancing the pipeline infrastructure in product pipelines.
Building a sound gas transportation infrastructure to support the projected growth of the gas market. Setting up of a regulator under the Petroleum and Natural Gas Regulatory Board Act, 2006 (PNGRB Act 2006) to regulate the downstream oil and gas sector, including gas infrastructure, is expected to provide clarity and comfort to investors interested in India's gas transportation sector.
Nobel Laureate, R.K. Pachauri has stated as under:
"The Government of India has formulated a set of targets to monitor socio-economic and environmental performance, which upholds the spirit of the international Millennium Development Goals but are naturally attuned to the country's specific socio-economic requirements. Policies such as the National Environment Policy, 2006, and Integrated Energy Policy, 2006, have been conceived to achieve these goals, reflecting the country's commitment to the paradigm of sustainable development."Civil Writ Petition No.16532 of 2009 (O&M) 22
Dr. Anmol Rattan Sidhu, appearing for Union of India and GAIL, has stated that the prime concern of the Union of India is to create a national gas grid and as stated earlier, Chainsa - Gurgaon - Jhajjar - Hissar pipe line is part of the cross-country natural gas trunk pipe line. The Chainsa - Gurgaon - Jhajjar - Hissar pipe line may enhance the power generation upto 7000 MW in the region. This will in turn speed up the economic growth in the region. With the setting up of 3 - 4 power plants, direct and indirect employment for 2000 - 8000 persons is expected to be generated, about 50,000 buses and 2.5 lakh cars will switch over to green fuel and about 500 - 700 industrial units will also switch from other fuel to natural gas. Movement of approximately 1500 tankers per day will be eliminated by switching over from liquid fuel to natural gas and they will help in the decongestion of the roads as well as reduction in diesel consumption to the tune of 75000 - 80000 litres per day. With the advent of domestic gas pipe line supply, there will be reduction in use of 20 lakh LPG cylinders per day. State Government will earn about Rs.60.00 crores towards excise duty/sales tax/service tax during the construction phase. There will be contribution of about Rs.400 - 450 crores per annum to the exchequer by way of collection of taxes. To underscore the role of natural gas, Dr.Anmol Rattan Sidhu has further stated that natural gas is extremely important source of energy for reducing pollution and maintaining a clean and healthy environment. He has submitted that natural gas is a cleanest of all the fossil fuels. Composed primarily of methane, the main product of the combustion of natural gas are carbon dioxide and water vapor, the same compounds we exhale when we breathe. This is what the 1962 Act intends to achieve for economic and social development.
There has been rapid increase in the urban population. Therefore, there is acute shortage of housing and water supply in the Civil Writ Petition No.16532 of 2009 (O&M) 23 urban settlement. There is inadequate sewerage, traffic congestion, pollution, poverty, emergence of slums and social unrest, which has made the task of urban governance onerous. To regulate haphazard, unauthorized and sub-standard growth of population in urban cities and to provide urban sustenance, the master plan under the 1963 Act has been published. The Development/Master Plan (Annexure P-12) prepared under the 1963 Act is also to advance the role of the State Government to discharge its obligation for economic and social development for the benefit of citizens, and the same also fall under entry No.20 of List III.
To sum-up, there is overlapping and interdependence between various entries, thus, the 1962 Act falls under entry No.53 of List I and entry No.20 and 42 of List III, whereas the 1963 Act falls under entry No.18 and 35 of List II and entry No.20 of List III of Seventh Schedule of the Constitution of India.
In 'Prem Chand Jain and another v. R.K. Chhabra' 1984 (2) SCC 302, Hon'ble Apex Court has observed as under:
"8. ... ... ... The legal position is well-settled that the entries incorporated in the lists covered by Schedule VII are not powers of legislation but 'fields' of legislation. In State of Bihar v. Kameshwar AIR 1952 SC 252, this Court has indicated that such entries are mere legislative heads and are of an enabling character. This Court has clearly ruled that the language of the entries should be given the widest scope or amplitude. Each general word has been asked to be extended to all ancillary or subsidiary matters which can fairly and reasonably be comprehended. It has also been held by this Court in Check Post Officer v. K.P. Abdulla Bros. AIR 1971 SC 792 that an entry confers power upon the Legislature to legislate for matters ancillary or incidental, including provision for avoiding the law. As long as the legislation is within the permissible field in pith and substance, objection would not be entertained merely on the ground that while enacting legislation, provision has been made for a matter which though germane for the purpose for which competent Civil Writ Petition No.16532 of 2009 (O&M) 24 legislation is made it covers an aspect beyond it. In a series of decisions this Court has opined that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the Legislature enacting it, it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another Legislature. We, therefore, do not accept the submission that the definition of university given in Section 2(f) or the prohibition in Section 23 of the Act are ultra vires the Parliament on the ground that such provisions are beyond its legislative competence."
In 'Ishwari Khetan Sugar Mills (P) Ltd. and others v. State of Uttar Pradesh and others' 1980 (4) SCC 136, it was stated as under:
"13. When validity of a legislation is challenged on the ground of want of legislative competence and it becomes necessary to ascertain to which entry in the three lists the legislation is referable to, the Court has evolved the theory of pith and substance. If in pith and substance a legislation falls within one entry or the other but some portion of the subject- matter of the legislation incidentally trenches upon and might enter a field under another list, the Act as a whole would be valid notwithstanding such incidental trenching. This is well established by a catena of decisions (see Union of India v. H.S. Dhillon 1971 (2) SCC 779 and Kerala State Electricity Board v. Indian Aluminium Co. 1976 (1) SCC 466). After referring to these decisions in State of Karnataka v. Ranganatha Reddy 1977 (4) SCC 471, Untwalia, J. speaking for the Constitution Bench has in terms stated that the pith and substance of the Act has to be looked into and an incidental trespass would not invalidate the law. The challenge in that case was to the nationalization of contract carriages by the Karnataka State, inter alia, on the ground that the statute was invalid as it was a legislation on the subject of inter-State trade and commerce. Repelling this contention the Court unanimously held that in pith and substance the impugned legislation was for acquisition of contract carriages and not an Act which deals with inter-State trade and commerce.Civil Writ Petition No.16532 of 2009 (O&M) 25
14. To start with, it is necessary first to ascertain in pith and substance to what entry in a particular list the impugned legislation is referable. If it is referable to entry other than 24, List II, such as Entry 42, List III, it would be necessary to precisely ascertain whether it in any way trenches upon the field occupied by the declaration made by Parliament to assume control over sugar industry as manifested by the various provisions of the IDR Act."
The above said principles have also been reiterated in 'State of W.B. v. Kesoram Industries Ltd. and others' 2004 (10) SCC 201, as under:
"31. Article 245 of the Constitution is the fountain source of legislative power. It provides -- subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the legislature of a State may make laws for the whole or any part of the State. The legislative field between Parliament and the legislature of any State is divided by Article 246 of the Constitution. Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule, called the "Union List". Subject to the said power of Parliament, the legislature of any State has power to make laws with respect to any of the matters enumerated in List III, called the "Concurrent List". Subject to the abovesaid two, the legislature of any State has exclusive power to make laws with respect to any of the matters enumerated in List II, called the "State List". Under Article 248 the exclusive power of Parliament to make laws extends to any matter not enumerated in the Concurrent List or State List. The power of making any law imposing a tax not mentioned in the Concurrent List or State List vests in Parliament. This is what is called the residuary power vesting in Parliament. The principles have been succinctly summarised and restated by a Bench of three learned Judges of this Court on a review of the available decision in Hoechst Pharmaceuticals Ltd. v. State of Bihar 1983 (4) SCC 45. They are:Civil Writ Petition No.16532 of 2009 (O&M) 26
(1) The various entries in the three lists are not "powers" of legislation but "fields" of legislation. The Constitution effects a complete separation of the taxing power of the Union and of the States under Article 246.
There is no overlapping anywhere in the taxing power and the Constitution gives independent sources of taxation to the Union and the States.
(2) In spite of the fields of legislation having been demarcated, the question of repugnancy between law made by Parliament and a law made by the State Legislature may arise only in cases when both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and a direct conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand and List I and List III on the other, the State law will be ultra vires and shall have to give way to the Union law.
(3) Taxation is considered to be a distinct matter for purposes of legislative competence. There is a distinction made between general subjects of legislation and taxation. The general subjects of legislation are dealt with in one group of entries and power of taxation in a separate group. The power to tax cannot be deduced from a general legislative entry as an ancillary power.
(4) The entries in the lists being merely topics or fields of legislation, they must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. The words and expressions employed in drafting the entries must be given the widest-possible interpretation. This is because, to quote V. Ramaswami, J., the allocation of the subjects to the lists is not by way of scientific or logical definition but by way of a mere simplex enumeratio of broad categories. A power to legislate as to the principal matter specifically mentioned in the entry shall also include within its expanse the legislations touching incidental and ancillary matters. Civil Writ Petition No.16532 of 2009 (O&M) 27
(5) Where the legislative competence of the legislature of any State is questioned on the ground that it encroaches upon the legislative competence of Parliament to enact a law, the question one has to ask is whether the legislation relates to any of the entries in List I or III. If it does, no further question need be asked and Parliament's legislative competence must be upheld. Where there are three lists containing a large number of entries, there is bound to be some overlapping among them. In such a situation the doctrine of pith and substance has to be applied to determine as to which entry does a given piece of legislation relate. Once it is so determined, any incidental trenching on the field reserved to the other legislature is of no consequence. The court has to look at the substance of the matter. The doctrine of pith and substance is sometimes expressed in terms of ascertaining the true character of legislation. The name given by the legislature to the legislation is immaterial. Regard must be had to the enactment as a whole, to its main objects and to the scope and effect of its provisions. Incidental and superficial encroachments are to be disregarded.
(6) The doctrine of occupied field applies only when there is a clash between the Union and the State Lists within an area common to both. There the doctrine of pith and substance is to be applied and if the impugned legislation substantially falls within the power expressly conferred upon the legislature which enacted it, an incidental encroaching in the field assigned to another legislature is to be ignored. While reading the three lists, List I has priority over Lists III and II and List III has priority over List II. However, still, the predominance of the Union List would not prevent the State Legislature from dealing with any matter within List II though it may incidentally affect any item in List I." Civil Writ Petition No.16532 of 2009 (O&M) 28 The 1962 Act, in pith and substance also vests powers in the Union to acquire right of land use. Therefore, both the Union and the State would have power of acquisition and re-acquisition the property. In the present case, acquisition is to give boost to the petroleum industry by laying gas pipe line, which is going to change the way of life by ensuring better environment, energy security and alternate mode of transportation. It will ensure dignified better living for the citizens of the region to enjoy their right of life enshrined in Article 21 of the Constitution of India to its fullest. Same, in pith and substance, is also the object of the 1963 Act. Therefore, both the laws can be harmonized and there is apparently no conflict. In 'State of Rajasthan v. G. Chawla and another' AIR 1959 SC 544, Hon'ble Apex Court had given the following guidelines:
"8. ... ... ... This is so even after the division of legislative powers, subject to this that the supremacy of the legislatures is confined to the topics mentioned as Entries in the List conferring respectively powers on them. These Entries, it has been ruled on many an occasion, though meant to be mutually exclusive are sometimes not really so. They occasionally overlap, and are to be regarded as enumeration simplex of broad categories. Where in an organic instrument such enumerated powers of legislation exist and there is a conflict between rival Lists, it is necessary to examine the impugned legislation in its pith and substance, and only if that pith and substance falls substantially within an Entry or Entries conferring legislative power, is the legislation valid, a slight transgression upon a rival List, notwithstanding. This was laid down by Gwyer C.J. in Subramanyam Chettiar v. Muthuswamy Gounndan, 1940 FCR 188 at p. 201.
XXXX XXXX XXXX
XXXX
XXXX XXXX XXXX
XXXX
It is equally well settled that the power to legislate on a topic of legislation carries with it the power to legislate on an Civil Writ Petition No.16532 of 2009 (O&M) 29 ancillary matter which can be said to be reasonably, included in the power given."
In G. Chawla's case (supra), after holding that broadcasting and communication fall within entry No.31 of the Union List, the Court further held that power to legislate in relation to public health includes the power to regulate the use of amplifiers, therefore, within the domain of the State also. This supports the view that both the acts seek to achieve economic and social growth in harmony. In 'State of Assam and others v. Labanva Probha Devi' AIR 1967 SC 1575, the Hon'ble Apex Court has said that "when two entries in the Constitution, whether in the same List or different List, deal with two subjects, if possible, an attempt shall be made to harmonize them rather than to bring them into conflict". This view is also guided by the following words noted by inter-state-council:
"The Constitution of India envisages two tiers of Government, one at the level of the Union, and the other at the level of the States. From the functional standpoint, such a Constitution is not a static format, but a dynamic process. Within this process, the interplay of centrifugal and centripetal forces influenced by a changing social, economic and political environment, constantly strives to find a new adjustment of the balance between unity and diversity."
Having said that both the acts operate in harmony and there is no conflict, question No.1 and 2 posed in the present writ petition stand answered.
So far as the remaining two questions are concerned, it can be safely stated that neither there is any promissory estoppel which binds the respondents nor any legitimate expectation vest in the petitioners. The 1962 Act provides acquisition of property for public purposes. It also provides the mechanism for payment of compensation qua the property acquired. In the present case, petitioners, HUDA and State of Haryana Civil Writ Petition No.16532 of 2009 (O&M) 30 have submitted no objections after the Notification under Section 3(1) of the 1962 Act was issued. The competent authority has proceeded to award the compensation. Therefore, for any loss, harm or damage, petitioners can be compensated in monetary terms, especially when in the area where the gas pipe line is laid, no building has been constructed and the land is vacant. The respondents have ensured safeguards specified in section 7 of the Act. Furthermore, huge investment has been made by GAIL. 70 km stretch of the gas pipe line has been laid, only 1.5 km stretch of the gas pipe line remains to be laid, in the area which falls in the land owned and possessed by the petitioners. The project of national importance cannot be set at naught, simply because petitioners will suffer loss. Personal gain has to make way for the public good.
For taking notice of another limb of argument advanced by Assistant Solicitor General of India, a reference can be made to rule 91 of the Petroleum Rules, 1967. Relevant portion of the same reads as under:
"91. Laying of pipeline -
4. The number of bends in the pipeline shall be kept to the minimum by proper grading of trenches of supports at crossing and other obstacles."
A glance at the re-routing suggested by the petitioners reveals that there will be number of bends, which may affect the efficacy of the gas pipe line.
Another Bench of this Court had granted interim order in favour of the petitioners. Dr.Anmol Rattah Sidhu, Assistant Solicitor General of India, has relied upon plethora of judgments to say that whenever development projects are undertaken for socio-economic upliftment, the Courts should be hesitant to grant interim relief, restraining progress of the project. Since this Court has endeavoured to decide the Civil Writ Petition No.16532 of 2009 (O&M) 31 petition itself, therefore, this Court shall refrain, to be drawn into this part of the controversy raised, which has become superfluous.
Taking the overall view, entire conspectus of law and gamut of facts, both these writ petitions are held to be devoid of any merit and are hereby dismissed, with no order as to the costs.
[KANWALJIT SINGH AHLUWALIA] JUDGE December 21, 2009 rps