Punjab-Haryana High Court
M/S Asb Developers (P) Ltd. And Another vs Union Of India And Others on 18 December, 2012
Author: Surya Kant
Bench: Surya Kant
CWP No. 2664 of 2012 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No. 2664 of 2012
Date of decision: 18.12.2012
M/s ASB Developers (P) Ltd. and another
..... Petitioners
Versus
Union of India and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR.JUSTICE R.P. NAGRATH
PRESENT: Mr. Ashwani Chopra, Senior Advocate with
Mr. Raheel Kohli and Mr. Arjun Sharma, Advocates,
for the petitioners.
Dr. Anmol Rattan Sidhu, Assistant Solicitor General of India
with Mr. B.S. Jolly, standing counsel for UOI.
Mr. Amit Rawal, Senior Advocate, Addl. AG, Punjab with
Mr. Mikhail Kad, AAG, Punjab.
SURYA KANT, J. (ORAL)
This writ petition seeks quashing of the notifications dated 10.11.2010 and 26.3.2011 (Annexures P-1 and P-2, respectively) issued by the Union of India, Ministry of Petroleum and Natural Gas, proposing and then acquiring the subject-land under the provisions of Petroleum and Mineral Pipelines (Acquisition of Right of User in Land) Act, 1962 (for short, "the 1962 Act"). The land has been purportedly acquired in CWP No. 2664 of 2012 -2- public interest for transportation of natural gas through Bawana-Nangal and spurs pipeline in the State of Punjab. The pipeline is to be laid by the second respondent, namely, M/s Gas Authority of India Ltd. (for brevity, "GAIL").
2. The petitioners are two Builders and Developers who are said to have purchased the land measuring 16.17 acres in village Mandiani, Tehsil and District Ludhiana, pursuant to an agreement to sell dated 20.2.2006, allegedly for a sale consideration of ` 12.5 crores (approximately). Since a strip of their land has been acquired vide notifications under challenge, that they have approached this Court. The petitioners' inter alia, grievances are that (i) the mandatory procedure for acquisition contemplated under the 1962 Act has not been followed; (ii) no objection certificate from the State of Punjab was not obtained; (iii) the petitioners have already been granted Conversion of Land use (CLU) to set up a multi-storeyed housing project over the land which shall now be frustrated due to acquisition of a part of their land; (iv) there is a violation of the Master Plan of Ludhiana City notified by the State of Punjab and (v) the petitioners are entitled to claim damages over and above the compensation admissible to them under Section 10 of the 1962 Act.
3. It may be noticed that when this petition came up for preliminary hearing on 17.2.2012, this Court observed as follows before calling upon the respondents:-
"After addressing arguments for some time, counsel for the petitioners, on instructions, confines his prayer CWP No. 2664 of 2012 -3- to explore the possibility of shifting the pipeline, at the petitioners' expense to a place, along the boundary wall."
4. On August 3, 2012, the possibility regarding shifting of the pipeline was also explored and the following order was passed:-
"The petitioners have given a proposal-cum- option No. 3 to partially shift gas pipeline in the petitioners' land abutting the revenue rasta. It will result into shifting of the gas pipeline in khasra Nos. 3/25, 1/1 and 10/2, owned by the petitioners. The petitioners can be persuaded to bear the expenses of such shifting.
Learned counsel for respondent No. 2 seeks time to have instructions in this regard.
It shall be open for the respondents to explore option Nos. 1 and 2 also."
5. The respondents thus were never called upon to contest the matter on merits, however, in view of the fact that the pleadings are complete, we have in all fairness heard learned counsel for the parties in support of their respective contentions.
6. The petitioners' plea that the mandatory procedure contemplated by Sections 3 and 5 read with Rules 3 and 8 of the 1963 Rules framed thereunder, has not been complied with while acquiring their land, cannot be accepted for the reason that the contesting respondent (GAIL) in its reply-affidavit has stated that an attempt was CWP No. 2664 of 2012 -4- made to effect service upon the petitioner but on refusal to accept the notice, that the final notification was issued. The categoric plea to this effect has been taken in para 11 of the affidavit which reads as follows:-
"11............ That thereafter answering respondent got the survey done of the upcoming pipeline for the entire area with route map and alignment. That thereafter notice under Section 3(1) of the P&MP (Acquisition of Right of User Land Act 1962) was issued to the petitioner and other landowners asking for any objections regarding the laying of pipeline. That the petitioner refused to accept the notice. That after serving notice under 3(1) of the P&MP (Acquisition of Right of User Land Act 1962), a public hearing is conducted for those landlords who raised written objections. That in case of petitioner, they neither accepted the notice issued by the answering respondent nor filed any written objections. That now work of pipeline has already been completed."
7. As regards the petitioners' contention that the consent or 'no objection' from the State of Punjab has not been obtained under the provisions of the Punjab Regional and Town Planning and Development Act, 1995, in our considered view, the plea is wholly mis-conceived and unmerited. There is no statutory obligation for Union of India to seek consent of a State Government or its agencies to give effect to a project in public interest under the 1962 Act. The plea taken to this effect by the CWP No. 2664 of 2012 -5- District Town Planner, Ludhiana, in his reply-affidavit is apparently suggestive of his connivance and collusion with the petitioners, hence no reliance can be placed thereupon as it is contrary to the legislative object of the 1962 Act.
8. The petitioners' next plea that their residential project has come to a standstill is also highly exerted and cannot be accepted for more than one reasons. Firstly, the reply-affidavit of District Town Planner, Ludhaina, discloses that permission granted to the petitioners to develop the residential project is on a land measuring '7.29 acres' and the site plan placed on record nowhere indicates that the bigger chunk of the petitioners' land which is far away from the pipeline, is less than 7.29 acres.
9. Secondly, there is no embargo under the 1962 Act not to acquire the land in a case where only a proposal to set up the residential project, has been approved. Thirdly, in the event of competing claims between private interest and the public interest, it is the latter which must prevail at the cost of an individual's interest. Fourthly, the prohibition against laying of pipe in a residential area can be operative only when such area has been actually developed as a residential area, namely, it is fully habitated.
10. In all fairness, learned counsel for the petitioners rely upon J&K Housing Board and another Vs. Kunwar Sanjay Krishan Kaul and others, (2011) 10 Supreme Court Cases 714, to urge that when the statute provides a particular manner for doing a particular act, it was imperative upon the respondents to do the said act under the prescribed CWP No. 2664 of 2012 -6- manner only. The cited decision, in our considered view, does not advance the case of the petitioners for the reason already assigned by us that the prescribed procedure has been followed by the respondents in the instant case. The second decision in Greater Noida Industrial Development Authority Vs. Devendra Kumar and others, 2011 (4) UJ SC 2384 also renders no help to the petitioners as that was a case where the land was acquired in colourable exercise of power to serve interest of the builders and the veil of public purpose was used to mislead the people in believing that land was being acquired for a public purpose. In the instant case, the acquired land has already been utilized for the gas pipeline, hence, the petitioners cannot be heard to say that the acquisition is not meant for a public purpose. The decision in Gujarat Urja Vikas Nigam Ltd. Vs. ESSAR Power Ltd., (2008) 4 Supreme Court Cases 755, also reiterates the principle that "where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner".
11. The petitioners have also pressed into aid the decision in Gujarat State Financial Corporation Vs. Lotus Hotels Pvt. Ltd., AIR 1983 SC 848, to invoke the principle of promissory estoppel on the plea that the petitioners have already been granted licence to develop the land for a residential project, hence, the respondents cannot be permitted to turn around and frustrate such project. The contention, as we view, is wholly mis-conceived and misplaced. Firstly, the approval of the project by the District Town Planner, Ludhiana, is not binding and cannot be relied upon against respondent No. 2-GAIL. Secondly, there cannot be CWP No. 2664 of 2012 -7- estoppel against law. Thirdly, the manner in which permission to the project has been granted much after publication of the notification of acquisition, simply suggests collusion between the petitioners and the Senior Town Planner, Ludhiana, who has even chosen to file a reply to support the petitioner's case.
12 . Fifthly, it is pointed out by Dr. Anmol Rattan Sidhu, Assistant Solicitor General for Union of India, that the width of the acquired land is 20 metres only and it is the right of user in the land which has been vested in respondents under the 1962 Act, hence the petitioners are free to utilize that land except that the acquired land cannot be utilized for a purpose expressly prohibited under the 1962 Act or that GAIL shall continue to have an un-restricted access for the purpose of inspection, maintenance etc. in according with the provisions of Section 9 of the 1962 Act. Sixthly, mere notification of the Master Plan of Ludhiana City can create no embargo against implementation of the project of National importance conceived under the 1962 Act in larger public interest. The restriction against acquisition of the land under the 1962 Act must find place in the said Act only as in the event of any conflict, sought to be suggested by the petitioners, the doctrine of Repugnance would apply in favour of the Parliamentary Legislation.
13. The fact that the project(s) under the 1962 Act are of national importance and therefore any individual inconvenience has to yield to national interest was authoritatively laid down by the Hon'ble Supreme Court in Ichchapur Industrial Cooperative Society Ltd. Vs. Competent Authority, Oil & Natural Gas Commission & Anr., (1997) 2 SCC 42. In CWP No. 2664 of 2012 -8- Hindustan Petroleum Corpn. Ltd. Vs. Darius Shapur Chenai & Ors., (2005) 7 SCC 627, it was held that the interference in decision making process behind land acquisition proceedings would lie in a case of illegality, irrationality, procedural impropriety or where the power has not been exercised fairly and reasonably. Similar views have been expressed in M/s Girias Investment Pvt. Ltd. & Anr. Vs. State of Karnataka & Ors., (2008) 7 SCC 53.
14. In all fairness learned ASG also referred to some decisions laying down that policy matters especially economic policy of the State should not be lightly interfered with by the Courts in exercise of its power of judicial review.
15. That apart and seventhly, it cannot be overlooked that for the acquisition of their strip of land, the petitioners are entitled to compensation assessed or to be assessed in according with Section 10 of the 1962 Act. However, the 1962 Act or the Rules framed thereunder do not contemplate any additional compensation/damages sought to be claimed by the petitioners. We cannot grant any permission to the petitioners to claim special damages which may amount to arm twisting the Authorities under the 1962 Act, detrimental to the public interest.
16. Lastly, it may be mentioned that the possibility of shifting of the pipeline has also been fully explored. However, the Chief Manager (Project Execution) along with Chief Manager (Construction), who were present in Court informed that the options given by the petitioners are not feasible for the reason that no bend beyond 10 degree to 12 degree in the pipeline is permissible. The Courts cannot substitute such an opinion nor CWP No. 2664 of 2012 -9- can assume the role of experts to whom the responsibility to execute such like projects are assigned.
17. For the reasons afore-stated, we do not find any merit in the instant writ petition and dismiss the same. We, however, direct that a copy of this order be sent to Chief Secretary to Government of Punjab to consider the desirability of appropriate disciplinary action against the Senior Town Planner, Ludhiana, who has attempted to mislead the Court by taking false or baseless plea.
( SURYA KANT )
JUDGE
December 18, 2012 ( R.P. NAGRATH )
rishu JUDGE