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