Bombay High Court
Gangadhar Karbhari Jadhav vs Union Of India Thr. Secretary ... on 27 March, 2023
Bench: R.D. Dhanuka, M. M. Sathaye
2023:BHC-AS:9033-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
VASANT Digitally signed by
VASANT ANANDRAO
ANANDRAO IDHOL
Date: 2023.03.27
IDHOL 16:44:23 +0530 WRIT PETITION NO. 7115 OF 2022
Gangadhar Karbhari Jadhav
Indian inhabitant, Aged-64 Years,
Having address at 301, Prasanna
Arcade, Trimbak Naka, Old Agra
Road, Near Mazda Hotel, Nashik
400002. ...Petitioner
Vs.
1. Union of India
Through its Secretary, Ministry of
Petroleum and Natural Gas Having
address at: Shastri Bhawan, New
Delhi - 110001
2. Competent Authority
(For Pipeline Infrastructure Ltd.)
(Formerly known as Reliance Gas
Transportation Infrastructure Ltd.)
Duly appointed under Section 2(a)
of the Petroleum and Minerals
Pipelines (Acquisition of Of Right
and User in Land) Act, 1962 Having
adress at C.S. 08, Vaholi,
Dahegaon, Kalyan Dist. Thane
421301.
3. Pipeline Insfrastructure Ltd.
(formerly known as Reliance Gas
Transportation Infrastructure Ltd.)
having address at Seawoods Grand
Central, Tower-1, C-Wing, 301-304,
Sector 40, Seawoods Railway
Station, Navi Mumbai-400706 ...Respondents
WITH
INTERIM APPLICATION NO. 30285 OF 2022
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Pipeline Insfrastructure Ltd.
(formerly known as Reliance Gas
Transportation Infrastructure Ltd.)
having address at Seawoods
Grand Central, Tower-1, C-Wing,
301-304, Sector 40, Seawoods
Railway Station, Navi Mumbai- ...Applicant
400706
IN THE MATTER BETWEEN
Gangadhar Karbhari Jadhav
Indian inhabitant, Aged-64 Years,
Having address at 301, Prasanna
Arcade, Trimbak Naka, Old Agra
Road, Near Mazda Hotel, Nashik
400002 ...Petitioner
Vs.
1. Union of India
Through its Secretary, Ministry of
Petroleum and Natural Gas Having
address at: Shastri Bhawan, New
Delhi - 110001
2. Competent Authority
(For Pipeline Infrastructure Ltd.)
(Formerly known as Reliance Gas
Transportation Infrastructure Ltd.)
Duly appointed under Section 2(a)
of the Petroleum and Minerals
Pipelines (Acquisition of Of Right
and User in Land) Act, 1962
Having adress at C.S. 08, Vaholi,
Dahegaon, Kalyan Dist. Thane
421301. ...Respondents
Mr. Prahlad Paranjape i/b. Mr. Rahul Punjabi, Advocates for the
Petitioner.
Mr. Niranjan P. Shimpi, Advocates for Respondent No. 1-U.O.I.
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Mr. Mayur Khandeparkar a/w. Ms. Sabeena Mahadik a/w. Mr. Mangesh
Avhale, Advocates for Respondent No.2 - Competent Authority in both
the matters.
Dr. Milind Sathe, Senior Advocate a/w. Mr. Vaibhav Sugdare a/w. Mr.
Rishit Badiani a/w. Mr. Ketan Dave a/w. Mr. Gaurav H. Gangal i/by. A.S.
Dayal & Associates for Respondent No.3.
CORAM:- R. D. DHANUKA AND
M.M. SATHAYE JJ.
RESERVED ON : 8 FEBRUARY, 2023
PRONOUNCED ON: 27 MARCH, 2023
JUDGMENT:
1. Rule. Mr. Shimpi waives service for Respondent No.1. Mr.
Khandeparkar waives service for Respondent No.2. Dr. Sathe learned
senior counsel waives service for Respondent No.3 in WP No. 7115 of
2022. Rule is made returnable forthwith. By consent of the parties, the
matter is taken up for final hearing.
2. By this Writ Petition filed under Article 226 of the
Constitution of India, the Petitioner seeks a Writ of Certiorari for
quashing and setting aside the impugned order dated 25 March, 2022
passed by the Respondent No.2 Competent Authority thereby rejecting
the Petitioner's claim for application of Right to Fair Compensation and
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Transparency in Land Acquisition Act 2013 (for short "Fair
Compensation Act") for determination of compensation for acquisition
of Right of User of his lands under the provisions of Petroleum and
Minerals Pipeline Act, 1962 (for short "PMP Act"). The Petitioner also
seeks a Writ of Mandamus against the Respondents to apply the
provisions of the Fair Compensation Act for determination of
compensation for acquisition of Right of User of his lands under the
provisions of the PMP Act and to make good the said amounts in a time
bound manner.
Some of the relevant facts for the purpose of deciding this writ
petition are as under:
3. The Petitioner is the owner of five portion of lands situated
in Village Wakas, Taluka Karjat, Dist. Raigad bearing:
a. S. No. 47/1/A/1 (Old Survey No. 81/1A/1) admeasuring
Hectare 1.54 Are;
b. S. No. 47/1/B, (Old Survey No. 81/1/B) admeasuring
Hectare 0.37 Are;
c. S. No. 49/5, (Old Survey No. 83/5) admeasuring Hectare
0.58 Are;
d. S. No. 49/13/A/24, (Old Survey No. 83/13+24) admeasuring
Hectare 1.08.80 Are;
e. S. No. 49/17, (Old Survey No. 83/17) admeasuring Hectare
0.26 Are.
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4. Some time in the year 2007, the Respondent No.1 had
assigned the project of transportation of natural gas from Andhra
Pradesh to different parts of the country passing through Maharashtra to
the Respondent No.3.
5. On 1 October, 2008, the Respondent No.1 issued a
notification under Section 3 of the PMP Act notifying its intention of
laying down a pipeline and for Acquisition of Right of User in Petitioner's
land bearing S.Nos. 47/1/A/1 (Old Survey No. 81/1A/1) admeasuring
Hectare 0.61 Are.
6. On 30 November, 2009, the Respondent No.1 issued a
notification under Section 3 of the PMP Act notifying its intention of
laying down a pipeline and for Acquisition of Right of User in Petitioner's
land bearing S. No. 49/13/A/24, (Old Survey No. 83/13+24)
admeasuring Hectare 0.70 Are. Similarly on 6 May, 2009, the
Respondent No.1 issued a Notification for declaration of Acquisition of
Right of User under Section 6 of the PMP Act for the Petitioner's land
bearing S. No. 47/1/A/1 (Old Survey No. 81/1A/1) admeasuring
Hectare 0.46 Are.
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7. On 9 March, 2010, the Respondent No.1 issued issued a
Notification for declaration of Acquisition of Right of User under Section
6 of the PMP Act for the Petitioner's land bearing S. No. 49/13/A/24,
(Old Survey No. 83/13+24) admeasuring Hectare 0.70 Are. On 9 April,
2011, the Respondent No.2-Competent Authority determined the
compensation under Section 10 of the PMP Act for the Petitioner's land
bearing S. No. 49/13/A/24, (Old Survey No. 83/13+24) admeasuring
Hectare 0.70 Are. According to the Petitioner, the said pipeline was
passing through all the five lands of the Petitioners and the three survey
numbers in question in the present petition, namely, S. No. 47/1/B, (Old
Survey No. 81/1/B) admeasuring Hectare 0.37 Are; S. No. 49/5, (Old
Survey No. 83/5) admeasuring Hectare 0.58 Are; and S. No. 49/17,
(Old Survey No. 83/17) admeasuring Hectare 0.26 Are were never
notified.
8. On 1 January, 2014, the said Fair Compensation Act was
notified for dealing with the various issues in relation to land acquisition
and payment of compensation. On 31 December, 2014, an Ordinance
(9 of 2014) was promulgated amending Section 105 of the Fair
Compensation Act to the extent the provisions of the Fair Compensation
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Act relating to determination of compensation and rehabilitation and
resettlement to cases of land acquisition under enactments specified in
Fourth Schedule to the Fair Compensation Act. On 3 April, 2015 and 30
May, 2015, the Respondent No.1 issued Ordinance of promulgated to
give continuity to ordinance amending Section 105(3) of Fair
Compensation Act. On 28 August, 2015, the Central Government
passed an order of Removal of Difficulties Order in exercise of powers
under Section 113(1) of the Fair Compensation Act for extending benefit
for determination of compensation in accordance with First Schedule,
rehabilitation and resettlement in accordance with the Second Schedule
and infrastructure amenities in accordance with the Third Schedule to
apply to all cases of land acquisition under the enactments specified in
Fourth Schedule of the Fair Compensation Act.
9. On 10 December, 2015, the Respondent No.1 issued a
notification under Section 6(4) of the PMP Act directing Right of User
vested in Respondent No.3 to be shared with another company and
also declaring the intention to acquire the Right of User in the two lands
of the Petitioner specified in the schedule. It is the case of the Petitioner
that the three survey numbers in the present petition were never
notified. Some time in the month of March, 2021, the Petitioner filed a
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Writ Petition bearing No. 2499 of 2021 in the High Court seeking
direction to the Respondents to issue requisite notification under the
said PMP Act for three survey numbers, namely, S. No. 47/1/B, (Old
Survey No. 81/1/B) admeasuring Hectare 0.37 Are; S. No. 49/5, (Old
Survey No. 83/5) admeasuring Hectare 0.58 Are; and S. No. 49/17,
(Old Survey No. 83/17) admeasuring Hectare 0.26 (subject matter of
this Petition) and to pay compensation under the provisions of the
Fair Compensation Act.
10. On 7 June, 2021, the Respondent No.2 issued a letter to
the Government of India, Ministry of Petroleum and Natural Gas stating
that the three lands of the Petitioner were never notified and therefore
requested the Government of India, Ministry of Petroleum and Natural
Gas to issue the notifications under Section 3 of the PMP Act. On 4
January, 2021, during the pendency of the earlier writ petition, the
Respondent No.1 issued the notification under Section (3)(1) of the
PMP Act for acquiring Right of User of the Petitioner in three lands
bearing S. No. 47/1/B, (Old Survey No. 81/1/B) admeasuring Hectare
0.37 Are; S. No. 49/5, (Old Survey No. 83/5) admeasuring Hectare 0.58
Are; and S. No. 49/17, (Old Survey No. 83/17) admeasuring Hectare
0.26 which are the subject matter of this petition.
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11. On 17 January, 2022, the Respondent No.2 issued notices
calling upon the Petitioner to raise any objections regarding acquisition
of Right of User under Section 5(1) of the PMP Act. On 1 February,
2022, the Petitioner submitted his objections contending that the
pipeline had passed through the center of the lands of the Petitioner
and therefore there were severe restrictions on the usage of lands. The
Petitioner also contended that the adjoining lands had obtained N.A.
permissions and were used for Non-Agricultural purposes and thus the
Petitioner urged the Respondent No.2 to determine the compensation
payable to the Petitioner under the provisions of the Fair Compensation
Act. On 2 March, 2022, this Court passed an order in Writ Petition No.
2499 of 2021, thereby disposing off the said Writ Petition after noting
that the three survey numbers had been notified and directing the
Respondent No.1 to take appropriate steps for issuing notification under
Section 6(4) of the PMP Act simultaneously.
12. On 25 March, 2022, the Respondent No.2 passed an order
holding that the compensation for Acquisition of the Right of User in
land would be acquired as per the PMP Act and not as per Fair
Compensation Act. On 19 September, 2022, the Respondent No.2
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issued a notification for declaration of the acquisition of Right of User in
the three lands of the Petitioner i.e. S. No. 47/1/B, (Old Survey No.
81/1/B) admeasuring Hectare 0.37 Are; S. No. 49/5, (Old Survey No.
83/5) admeasuring Hectare 0.58 Are; and S. No. 49/17, (Old Survey
No. 83/17) admeasuring Hectare 0.26 of the PMP Act. On 31 October,
2022, the Respondent No.2 issued a claim notice under Rule 4(2) of the
Petroleum and Minerals Pipeline (Acquisition of Right of User in land)
Rules 1963 (for short "PMP Rules") offering payment of 10% of the land
market value in respect of the three lands of the Petitioner.
13. Mr. Paranjape, learned Counsel appearing for the Petitioner
invited our attention to some of the documents annexed to the writ
petition including the impugned orders dated 25 March, 2022 holding
that the compensation for Acquisition of Right of User, if any, of the
Petitioner will have to be paid as per the provisions of the PMP Act after
the acquisition of Right of User by the Central Government by following
due procedure stipulated under the said PMP Rules. The land was
acquired for Right of User and there was no acquisition of any
ownership rights. It was held by the said impugned order that there was
no loss to objector and therefore under these circumstances the
objections were disallowed. Three separate orders were passed in
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respect of three lands of the Petitioner.
14. Learned Counsel relied upon the definition of the
Competent Authority under Section 2(a) of the said PMP Act, Section 3
which deals with the publication of notification for acquisition for the
purpose of transportation of Petroleum or any Minerals from one locality
to another locality by laying down pipeline by acquiring the Right of User
in any land under which such pipeline would be led. He also relied upon
Section 5 to 11 of the PMP Act. Learned Counsel placed reliance on
Section 105 of the Fair Compensation Act read with the First, Second,
Third and Fourth Schedule of the said Fair Compensation Act.
15. It is submitted that in the Fourth Schedule, the PMP Act is
placed at serial No. 8. He submitted that the provisions of the Fair
Compensation Act is a beneficial statute brought in by the Legislature to
provide maximum benefits to those person whose lands are being
acquired for various purposes. By virtue of Section 105 (1) of the Fair
Compensation Act, certain statutes were excluded from the applicability
of the Fair Compensation Act towards the determination of the
compensation and for statutes mentioned in the Fourth Schedule which
was corresponding to Section 105 of the Fair Compensation Act. He
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submitted that the PMP Act was one of the enactments specified in the
4th Schedule and thus the Fair Compensation Act was not applicable to
the said PMP Act at the time of the enactment of the Fair Compensation
Act. He submitted that the ordinances promulgated earlier was said to
lapse on 31 August, 2015.
16. It is submitted that the land owners were being placed in a
disadvantageous position, resulting in denial of benefits of
compensation and rehabilitation and resettlement to the cases of land
acquisition under the thirteen acts specified in the Fourth Schedule. He
submitted that the Central Government thus thought it fit to pass an
order under Section 113(1) of the Fair Compensation Act for removal of
the difficulties. He submitted that on 28 August, 2015, in exercise of
powers conferred by Section 113(1) of the Fair Compensation Act, the
Central Government notified the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
(Removal of Difficulties) Order, 2015 (for short "Removal of Difficulties
Order") extending the benefits of the Fair Compensation Act for
determination of compensation in accordance with the 1 st Schedule to
all cases of land acquisition under the enactment specified in the Fourth
Schedule of the Fair Compensation Act.
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17. It is submitted that the provisions of the Fair Compensation
Act were made applicable to the said PMP Act, as the said PMP Act,
was one of the enactments specified in the Fourth Schedule. He
submitted that the said Removal of Difficulties Order was notified with a
view to provide equal advantage to the benefits of the Fair
Compensation Act to similarly place land owners whose lands are
acquired under the enactments specified under the Fourth Schedule.
He relied upon the objects and reasons of the order and submitted that
the Central Government had decided to extend the beneficial advantage
to the land owners and uniformally apply the provisions of the Fair
Compensation Act relating to the determination of compensation and
rehabilitation and resettlement to the cases for land acquisition under
the said enactment in the interest of land owners.
18. Learned Counsel for the Petitioner submitted that the
Respondent No.1 had issued another notification in purport of Section 6
of the PMP Act directing the Right of User vested earlier in the
Company previously known as Reliance Gas Trasportation
Infrastructure Ltd. (now in the company known as Reliance Gas
Pipeline Ltd.) for the purpose of laying down the Dahej Nagathana
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Liquid and Ethane pipeline. He submitted that this pipeline was to be
shared with the earlier pipeline laid down by the Pipeline Infrastructure
Ltd. He placed reliance on Section 9 of the PMP Act and vehemently
urged that various restrictions regarding the use of land imposed under
the said provisions after publication of declaration under Section 6(1) of
the PMP Act including restriction of construction of any building or any
other structure, construction or excavation of any tank, well, reservoir or
dam or plant any tree.
19. It is submitted that due to the laying down of the pipeline on
the lands of the Petitioner, his land could not be used for the Non-
Agricultural purposes. Although the neighboring plots had been
converted to N.A., his land did not get N.A. permissions. There was
restriction on construction of building on the land below which the
pipelines are led, as a result of which there was reduction in the market
value of the lands of the Petitioner. It is submitted that, the Respondent
No.2 has not considered the objections raised by the Petitioner and has
passed the impugned order in an arbitrary manner and in an ignorance
of the provisions of the Fair Compensation Act. The provisions of the
Fair Compensation Act for determination of compensation had been
already made applicable to the lands acquired under the provisions of
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PMP Act. In view of the said Removal of Difficulties Order dated 28
August, 2015, the Respondent No.2 ought to have applied the
provisions of the Fair Compensation Act to calculate the compensation
payable to the Petitioner for acquisition of the Right of User for laying
down the pipelines.
20. It is submitted by learned Counsel for the Petitioner that the
Petitioner is deprived of his constitutional right to property under Article
300A of the Constitution of India and although the pipeline was led long
ago, no compensation was paid to the Petitioner. He submitted that the
Fair Compensation Act being a beneficial legislation and thus once the
Central Government had consciously decided to extend the benefits of
the Fair Compensation to all the thirteen enactments including the said
PMP Act for the purposes of determination of compensation payable for
such acquisition, the Respondent No.2 was not justified in rejecting the
plea of the Petitioner to apply the provisions of the Fair Compensation
Act to the Acquisition for Right of User under the PMP Act. He submitted
that the beneficial legislation has to be construed liberally so as to
provide its benefits to all the persons who in fact seek protection.
21. It submitted that the denuding the benefits of the Fair
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Compensation Act to the Petitioner would amount to a discrimination
between land owners whose lands are acquired under the Fair
Compensation Act and those whose lands are acquired under the PMP
Act and thus in violation of fundamental rights of the Petitioner under
Article 14 and 21 of the Constitution of India. It is submitted that the
impugned order dated 25 March, 2022 is contrary to the purpose of the
said Removal of Difficulties Order dated 28 August, 2015.
22. Learned counsel for the Petitioner placed reliance on
Section 15 of the PMP Act and submitted that in case if the Petitioner
carries out any activity on the land in respect of which Right of User is
acquired, the Petitioner would be imposed penalty under Section 15 of
the PMP Act. He placed reliance on the Judgment of the Supreme Court
in case of Mahanadi Coal Fields Ltd. And Another Vs. Mathias Oram
and Others (2022 SCC OnLine SC 1508) and in particular paragraph
Nos. 19, 24, 26, 27, 29, 31, 33, 34, 36 and 70. He submitted that the
Supreme Court in the said Judgment had considered the claim for
compensation under the provisions of the Fair Compensation Act in
respect of the land acquired under the provisions of the Coal Bearing
Areas (Acquisition and Development) Act 1957.
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23. It is submitted that the Supreme Court in the said Judgment
had considered the fact that the Central Government had not issued a
notification in terms of Section 105(3) however chose to exercise its
power to remove difficulties under Section 113 because the notification
was issued on 28 August, 2015 i.e. beyond the period prescribed in
Section 105(3). He submitted that the Supreme Court accordingly held
that the spirit of the statutory enactment to make the beneficial
provisions of the Fair Compensation Act applicable to compensation
determination and resettlement or rehabilitation measures was
compared with in effect and substance. He submitted that the Supreme
Court clearly held that the First Schedule of the Fair Compensation Act
was applicable to the acquisition in question made by the Central
Government under the provisions of the said Coal Bearing Areas
(Acquisition and Development) Act 1957 (which is at serial No. 11 of the
Fourth Schedule appended to the form of the Fair Compensation Act).
24. Learned Counsel for the Petitioner placed reliance on the
Judgment of the Supreme Court in case of Union of India and Another
Vs. Tarsem Singh and Others (2019) 9 SCC 304 and in particular
paragraph No. 1, 12, 13, 42, 45, 46, 48 and 52. He submitted that in the
said Judgment, the Supreme Court had considered the acquisition of
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the land of the Respondents under the provisions of the National
Highways Act, 1956 and the claim made by the Petitioner for
compensation under the provisions of the Land Acquisition Act, 1894.
Learned Senior Counsel for the Petitioner placed reliance on the
unreported Judgment delivered by the Aurangabad Bench of this Court
on 1st July, 2022 in Writ Petition No. 2152 of 2017 in case of
Shashikant s/o. Bhanjudas Shelke and Others Vs. State of
Maharashtra and Others and in particular paragraph Nos. 1, 7, 15, 19,
20 and 22 in support of the submission that the Petitioners shall be paid
compensation under the provisions of the Fair Compensation Act.
25. Learned Counsel for the Petitioner placed reliance on the
Judgment of the Supreme Court in case of Brahampal Alias Sammay
and Another Vs. National Insurance Company (2021) 6 SCC 512. He
placed reliance on Section 9 of the Maharashtra Underground Pipelines
and Underground Ducts (Acquisition of Right of User in Land) Act, 2018
and submitted that under the said Act, it is specifically provided that
where the land becomes un-buildable by virtue of the Right of User
vested in the State Government or Corporation or Urban Local Body as
the case may be, the land may be acquired under the provisions of the
Fair Compensation Act.
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26. Dr. Sathe, learned Senior Counsel for Respondent No. 3,
on the other hand, invited out attention to the prayer clause (b) in the
Writ Petition and submitted that the acquisition of the writ lands under
the provisions of the PMP Act cannot be held as acquisition under the
provisions of the Fair Compensation Act. The Petitioner cannot claim
that the provisions of the Fair Compensation Act would be applicable to
the case of the Petitioner though admittedly the writ land were acquired
under the provisions of the PMP Act.
27. Learned Counsel invited our attention to prayer clause (c)
of the Petition and submitted that the Petitioner himself is seeking an
order and direction against the Respondents to apply the provisions of
the Fair Compensation Act for determination of compensation for
acquisition of Right of User of his lands under the PMP Act and to make
good the said amounts in a time bound manner. He submitted that there
is no legal foundation led by the Petitioner for seeking payment of
compensation under the Fair Compensation Act though the land was
admittedly acquired under the provisions of the PMP Act. It is submitted
by learned Senior Counsel that the Competent Authority after
considering the provisions of the PMP Act and also the PMP Rules has
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rightly held that the land was acquired for Right of User and not
acquisition of any ownership rights. The compensation would be thus
paid as per the provisions of the PMP Act.
28. It is submitted by learned Senior Counsel that in this case
the pipelines were led by the Respondent No.3, 10 feet below the
surface of the land. All the activities are prohibited or restricted on the
land of the Petitioner. He relied upon Section 7 of the PMP Act and
submitted that the Central Government or the State Government or
Corporation is allowed to lay down pipelines and for such purpose
servants and workmen are allowed to enter upon the lands and lay
down the pipelines or to do any other act which is necessary for laying
the pipelines. There are restrictions imposed under the said provisions
about laying the pipelines. He submitted that in so far as the writ lands
are concerned, the lands are agricultural lands.
29. Learned Counsel relied upon Section 4 of the said PMP Act
and submitted that the compensation is payable also if the servants and
workmen of the Respondent No.3 are required to enter upon the writ
land and to take survey and levels of any land specified in the
notification and to do the various acts on the said land. He submitted
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that in this case only, the Right of User of the Petitioner in the writ lands
has been acquired. He relied upon the Entry No. 53 of List-I of
Schedule 7 of the Constitution of India and submitted that in view of the
subject "oil field and minerals oil resources, petroleum and petroleum
products" falls in List-I, only the Parliament can legislate on this subject.
Under Section 6(4) of the PMP Act, the Right of User vest in the said
Company once notification under the same provisions is issued. He
submitted that the Right of User is one of the species of the land and
thus his client does not dispute that even if Right of User on the land is
acquired by the Respondent No.3, compensation has to be paid to the
Petitioner, however, not under the provisions of the Fair Compensation
Act Act but only under the provisions of the PMP Act.
30. Learned Senior Counsel placed reliance on Section 105 of
the Fair Compensation Act and vehemently urged that under Sub-
Section (1) of Section 105, it is clearly provided that subject to Sub-
Section (3), the provisions of the Fair Compensation Act shall not apply
to the enactment relating to the land acquisition specified in the Fourth
Schedule. He invited our attention to Section 105(2) and 105 (3) and
submitted that subject to Sub Section 2 of Section 106, the Central
Government is empowered to issue notification to omit or add to any of
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the enactments specified in the Fourth Schedule. He submitted that
under Section 105(3) of the Fair Compensation Act, the Central
Government is empowered to issue a notification within one year from
the date of commencement of the said Fair Compensation Act. Central
Government can direct that any of the provisions of the said Act relating
to determination of the compensation in accordance with the First
Schedule and rehabilitation and resettlement specified in Second and
Third Schedule, being the beneficial to the affected families, shall apply
to the cases of the land acquisition under the enactments specified in
the Fourth Schedule or shall apply with such exceptions or modification
that do not reduce the compensation or dilute the provisions of the Fair
Compensation Act relating to compensation or rehabilitation and
resettlement as may be specified in the notification, as the case may be.
He submitted that such notification which can be issued under Section
105(3) by the Central Government has to be laid before each house of
Parliament, while it is in session, for a total period of three days and in
the manner prescribed therein.
31. Learned Senior Counsel invited our attention to the
Ordinances dated 31st December, 2014 issued by the Central
Government for seeking amendment to Section 105(3) of the Fair
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Compensation Act to the effect that the provisions of the Fair
Compensation Act relating to the determination of compensation in
accordance with First, Second and Third Schedule shall apply to the
enactments relating to land acquisition specified in the Fourth Schedule
with effect from 1 January, 2015. He submitted that the said Ordinance
has admittedly lapsed.
32. Learned Senior Counsel placed reliance on the Ordinance
issued by the Central Government on 3rd April, 2015 i.e. Ordinance No.
4/2015 and submitted that by the said Ordinance, the Central
Government sought to amend Section 105(3) by extending the payment
of compensation by substituting Sub Section 3 of Section 105 in the
similar way what was proposed by Ordinance No. 9 of 2014. He
submitted that the said Ordinance also admittedly stood lapsed.
Learned Senior Counsel for Respondent No.3 relied upon the
Ordinance dated 30th May, 2015 bearing No. 5 of 2015 and submitted
that by Section 12 of the said Ordinance, the Central Government
proposed to substitute Sub Section 3 of Section 105 and proposed to
provide the similar benefits which were proposed by Ordinance No. 9 of
2014 and 4 of 2015. He submitted that admittedly the said Ordinance
also stood lapsed.
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33. Learned Senior Counsel invited our attention to the said
Removal of Difficulties Order issued on 28 August, 2015 and submitted
that the said Removal of Difficulties Order purportedly issued under
Section 113 of the Fair Compensation Act was at the most in the nature
of executive order and cannot have effect of the amending the
substantive provisions i.e. Section 105(3). He submitted that the Central
Government having failed to issue a notification which was to be led
before both the house in the manner prescribed under Section 105(4) of
the Fair Compensation Act within the time prescribed, the Central
Government could not have issued such Removal of Difficulties Order
by purporting to give effect as if it is a notification under Section 105(3)
of the Fair Compensation Act.
34. Learned Senior Counsel placed reliance on Article 123 of
the Constitution of India and submitted that since the said three
Ordinances issued by the Respondent No.1 were not converted into Act
within the period of six weeks, those Ordinances automatically stood
lapsed and they were of no effect. He submitted that the powers
prescribed under Section 113 of the Fair Compensation Act to issue
Removal of Difficulties Order thus could not have been exercised by the
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Central Government in view of the Central Government having not got
those Ordinances converted into Act in accordance with Article 123 of
the Constitution of India. He submitted that by issuing such Removal of
Difficulties Order, the Central Government could issue such order only
in case, any difficulty arises in giving effect to the provisions of the Fair
Compensation Act and not for enacting new laws or substantive
amendment in the provisions of the Fair Compensation Act.
35. It is submitted that the Removal of Difficulties Order being
in the nature of executive order is not enforceable under Article 73 of
the Constitution of India and thus the provisions of the PMP Act does
not stand inserted in the Schedule. The said Section 105(1) and 105(3)
of the Fair Compensation Act read with Fourth Schedule does not apply
to the acquisition made under the provisions of the PMP Act. Without
prejudice to his submissions recorded aforesaid he submitted that even
if provisions of the Fair Compensation Act stand incorporated in place of
Section 10 of the PMP Act, the 10% market value of land as prescribed
under Section 10 of the PMP Act cannot be changed. He relied upon
Rule 3, 4, 4A, 7 and 8 of the PMP Rules, 1963.
36. Learned Senior Counsel for the Respondent No.3 placed
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reliance on the following Judgments:
I. Madeva Upendra Sinai and Ors. Vs. Union of India And Ors.
[(1975) 3 SCC 765)].
II. Babu Verghese and Ors. Vs. Bar Council of Kerala and Ors.
[(1999) 3 SCC 422].
III. Laljibhai K. Savaliya and Ors. Vs. State of Gujarat and Ors.
[(2016) 9 SCC 791].
IV. Gas Authority of India Ltd. And Anr. Vs. State of Maharashtra
& Ors. [2006 (6) BCR 527].
V. Ashoka Marketing Ltd. And Anr. Vs. Punjab National Bank
and Ors. [(1990) 4 SCC 406].
VI. Clovis Siqueira Vaz and Anr. Union of India and Ors.
[Unreported Judgment dt. 19th July, 1991 in WP/3023/1991].
37. It is submitted by learned Senior Counsel that even if there
is no challenge to the Removal of Difficulties Order of 2015, since the
said order is not issued within the parameters and in accordance with
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Section 105 of the Fair Compensation Act, such Removal of Difficulties
Order cannot be relied upon. He submitted that since the manner in
which such a notification came to be issued under Section 105(3) as
prescribed specifically, such procedure not having been followed by the
Respondent No.1 would not make such Removal of Difficulties Order
valid and binding. He submitted that when statute provides that things
are to be done in a particular manner, has to be done only in that
manner and not in any other manner.
38. Learned Senior Counsel submitted that in the Judgment of
Supreme Court in case of Laljibhai K. Savaliya and Ors. (supra) the
constitutional validity of the PMP Act is upheld. He submitted that the
Supreme Court has already held in the said Judgment that the principle
of compensation as dealt in PMP act is reasonable and cannot in any
way termed as illusory. He submitted that the PMP Act being special Act
and therefore contended that the specific provisions thus would prevail.
The said PMP Act is self contained Act. Learned Senior Counsel
distinguished the Judgment cited by Mr. Paranjape for the Petitioner. He
submitted that the Judgment of the Supreme Court in case of Mahanadi
Coal Fields Ltd. And Another Vs. Mathias Oram and Others (supra)
does not lay down a preposition that the provisions of 2001 Act gets
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incorporated in the provisions of the PMP Act.
39. Insofar as the Judgment of the Hon'ble Supreme Court in
case of Union of India and Another Vs. Tarsem Singh and Others
(supra) relied upon by learned Counsel for the Petitioner is concerned,
learned Senior Counsel for Respondent No.3 distinguished the said
Judgment on the ground that the said Judgment was decided on the
concession made by the learned Counsel for Union of India and does
not lay down any law. He submitted that in the said Judgment the
constitutional validity of Section 35 of the National Highways Act is
upheld. The Petitioner has not challenged the validity of Section 10 of
the PMP Act in this Petition.
40. Mr. Khandeparkar, learned Counsel for the Respondent
No.2-Competent Authority adopted the submissions made by Dr. Sathe
for the Respondent No.3 and made additional submissions. He relied
upon the Judgment of Patna High Court in case of Krishnadeo Misra
Vs. State of Bihar and Others (1987 SCC OnLine Pat 127) and in
particular paragraph No. 6, 12 and 13 and submitted that the notification
under Section 105(3) of Fair Compensation Act is different than the
Removal of Difficulties Order. He submitted that by issuing such
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Removal of Difficulties Order, the Respondent No.1 has indirectly
exercised rule making power. He invited our attention to prayer clause
(c) of the Petition and submitted that the Petitioner himself has prayed
for writ of mandamus for determination of compensation under the Fair
Compensation Act. It is submitted that the writ of mandamus can be
issued only in accordance with law and not otherwise. Section 105
cannot be amended by the Central Government by issuing Removal of
Difficulties Order Act. He submitted that the said Removal of Difficulties
Order was not placed before the Parliament. It is submitted by learned
Counsel that the Judgment in case of Mahanadi Coal Fields Ltd. And
Another Vs. Mathias Oram and Others (supra) and in case of Union
of India and Another Vs. Tarsem Singh and Others (supra) relied
upon by learned Counsel for the Petitioner do not apply to the facts of
this case as precedents as the points urged by the learned Counsel for
the Petitioner in this Petition were not urged before the Supreme Court
and would not be binding precedent.
41. Mr. Shimpi, learned Counsel for the Respondent No.1
tendered a copy of the letter dated 21 September, 2020 from the
Secretary, Government of India, Ministry of Petroleum and Natural Gas
to the Secretary of Department of Land Resources, New Delhi
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requesting to initiate action to delete PMP Act, from the Fourth
Schedule of the Fair Compensation Act, as removal of PMP Act, from
the Fourth Schedule will bring clarity that the Fair Compensation Act is
applicable only to cases where complete land is acquired and not to
cases where only Acquisition of Right of User in Land is acquired. He
submitted that so far the PMP Act has not been deleted from the Fourth
Schedule as advised in the said letter by the Department of Land
Resources under Section 106(1) of the Fair Compensation Act till date.
42. Learned Counsel tendered a copy of the letter dated 15th
September, 2021 addressed by the Secretary, Government of India,
Department of Land Resources, Ministry of Rural Development to the
Secretary, Ministry of Petroleum and Natural Gas, New Delhi. He
tendered a copy of the letter dated 30th January, 2023 addressed from
the Secretary, Government of India, Department of Land Resources,
Ministry of Rural Development to the Secretary of Department of Legal
Affairs, Ministry of Law and Justice, New Delhi stating that the
Department of Land Resources has already agreed to/initiated action to
issue notification for omitting the PMP Act from the Fourth Schedule of
the Fair Compensation Act after adopting due legal procedures.
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43. Learned Counsel for the Respondent No.1 tendered a copy
of the letter dated 18th January, 2023 addressed by the Under Secretary
to the Government of India with a copy for information to the Secretary,
Ministry of law and Justice, Department of Legal Affairs, New Delhi to
the Secretary of Ministry of Ministry of Rural Development, Department
of Land Resources, New Delhi referred to this Writ Petition filed by the
Petitioner and requesting the Department of Land Resources to update
about the status of action to issue notification for omitting the PMP Act
from the Fourth Schedule of the Fair Compensation Act.
44. Mr. Paranjape, learned Counsel for the Petitioner in his
rejoinder arguments submitted that in the Judgment of Mahanadi Coal
Fields Ltd. And Another Vs. Mathias Oram and Others (supra), the
Supreme Court held that the fact that the notification prescribed under
Section 105(3) was not issued within the time prescribed and still having
held that the provisions of the Fair Compensation Act being beneficial
legislation, the payment of compensation prescribed under the said Fair
Compensation Act should be extended to the lands acquired under Acts
inserted in the Fourth Schedule of the said Fair Compensation Act so as
to provide the compensation under the Fair Compensation Act to call
parties whose lands acquired under the various other Acts prescribed
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under the Fourth Schedule being similarly situated.
45. Learned Counsel for the Petitioner relied upon the
Judgment of the Supreme Court in case of Brahampal Alias Sammay
and Another Vs. National Insurance Company (supra) in particular
paragraph Nos. 6 and 7 and submitted that the Supreme Court in the
said Judgment has clearly held that the interpretation of a beneficial
legislation was to be remedial and must be in furtherance with the
purpose which the statute seeks to serve. He submitted that the
provisions of the Fair Compensation Act being a beneficial legislation
should receive a liberal construction so as to permit its objectives.
REASONS AND CONCLUSION:
46. The question that arises for consideration of this Court is;
(i) Whether the acquisition of the Right of user of the land under the
provisions of the Petroleum and Minerals Pipelines (Acquisition of Right
of User in Land) Act, 1962 would result into inconsistency with the
provisions of the acquisition under the Right to Fair Compensation and
Transparency in Land Acquisition , Rehabilitation and Resettlement Act,
2013 as the said PMP Act having been automatically inserted under the
Fourth Schedule at Serial No.8 of Section 105 of the Fair Compensation
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Act?
(ii) Whether all the provisions of the Fair Compensation Act would apply
to the requisition in question under PMP Act including the determination
of compensation?
(iii) Whether the Central Government having failed to issue
Notification within one year from the date of commencement of the
Fair Compensation Act under Section 105(3) the Central Government
could have invoked Section 113 of the Fair Compensation Act, invoking
powers to remove difficulties order and can provide that provisions
relating determination of compensation under the Fair Compensation
Act provided under I, II and III Schedule shall apply to the land
acquisition under the enactment specified in the IV Schedule or not?
47. It is an admitted position that the Notification under Section
3 of the PMP Act for declaration of the acquisition of the right of user
under Section 6 of the PMP Act was issued on 6 th May, 2009 for the
land bearing Survey No.47/1/A/1(Old Survey No.81/1A/1) admeasuring
Area Hectare 0.46 Are. Similarly a Notification under Section 6 of the
said PMP Act was issued by Respondent No.1 on 9 th March, 2010 for
the land bearing Survey No.49/13/A/24 (Old Survey No.83/13+24)
admeasuring Hectare 0.70 Are. With effect from 1 st January, 2014, the
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provisions of the Fair Compensation Act came into effect. Admittedly,
the said PMP Act has been prescribed at Serial No.8 of the IV Schedule
under Section 105 and Section 113 of the said Fair Compensation Act.
48. It would be appropriate to refer to Section 105 of the Fair
Compensation Act at this stage, which read thus:
"105. Provisions of this Act not to apply in certain cases or to
apply with certain modifications.- (1) Subject to sub-section (3), the
provisions of this Act shall not apply to the enactments relating to land
acquisition specified in the Fourth Schedule.
(2) Subject to sub-section (2) of section 106 the Central Government
may, by notification, omit or add to any of the enactments specified in
the Fourth Schedule.
(3) The Central Government shall, by notification, within one year
from the date of commencement of this Act, direct that any of the
provisions of this Act relating to the determination of compensation in
accordance with the First Schedule and rehabilitation and
resettlement specified in the Second and Third Schedules, being
beneficial to the affected families, shall apply to the cases of land
acquisition under the enactments specified in the Fourth Schedule or
shall apply with such exceptions or modifications that do not reduce the
compensation or dilute the provisions of this Act relating to
compensation or rehabilitation and resettlement as may be specified in
the notification, as the case may be.
(4) A copy of every notification proposed to be issued under sub-
section (3), shall be laid in draft before each House of Parliament, while
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it is in session, for a total period of thirty days which may be comprised
in one session or in two or more successive sessions, and if, before
the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in disapproving the
issue of the notification or both Houses agree in making any
modification in the notification, the notification shall not be issued or,
as the case may be, shall be issued only in such modified form as may
be agreed upon by both the Houses of Parliament.
Section 113 of the Fair Compensation Act reads thus:
113. Power to remove difficulties - (1) If any difficulty arises in
giving effect to the provisions of this Part, the Central Government
may, by order, make such provisions or give such directions not
inconsistent with the provisions of this Act as may appear to it to be
necessary or expedient for the removal of the difficulty.
Provided that no such power shall be exercised after the expiry
of a period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may
be after it is made, before each House of Parliament."
49. It is not in dispute that an Ordinance dated 31 st December,
2014 was promulgated thereby inter alia, amending Section 105 of the
Fair Compensation Act to extend the provisions of the Act relating to
the determination of the compensation and rehabilitation and
resettlement to cases of land acquisition under the enactments
specified in the Fourth Schedule to the Fair Compensation Act w.e.f.
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from 1st January, 2014. The said First Ordinance dated 31 st December,
2014 however, lapsed.
50. The Respondent No.1 thereafter issued Ordinances
bearing No.4 of 2015 and No.5 of 2015 for continuing the provisions of
the Fair Compensation Act to the Acts specified in the Fourth
Schedule. The said Ordinances also admittedly also lapsed. The
Central Government proposed to amend Section 105 of the Fair
Compensation Act in a similar manner, what was proposed by
Ordinance No.9/2014. It is thus clear without any reasonable doubt that
Notifications prescribed under Section 105(3) could not be issued
within one year from the date of commencement of the Fair
Compensation Act i.e. 1st January, 2014 and draft was admittedly not
placed before both the House of Parliament.
51. Section 105(1) clearly provides that subject to sub-section
(3), the provisions of this Act shall not apply to the enactments relating
to land acquisition specified in the Fourth Schedule. It is thus clear that
since no Notification was issued within one year from the date of
commencement of the Fair Compensation Act in accordance with the
mode and manner prescribed under Section 105(4) of the Fair
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Compensation Act, Section 105(1) which was subject to compliance of
Section 105(3) of the Fair Compensation Act would not apply to the
enactments relating to land acquisition specified in the Fourth Schedule
including the provisions of PMP Act. In our view, since those three
ordinances were not converted into Act within six weeks in view of
Article 123 of the Constitution of India, those ordinances lapsed.
52. The next question that arises for consideration before this
Court is whether the Central Government having failed to issue
Notification under Section 105(3) under the mode and manner
prescribed under Section 105(4) within the time prescribed could have
extended the benefits of compensation under the provisions of the Fair
Compensation Act applicable to the acquisition under the provisions of
the Fair Compensation Act by invoking power under Section 113 of the
Right to Fair Compensation Act or not?
53. Admittedly in this case, Central Government issued an
order dated 28th August, 2015 stating that the provisions of the Fair
Compensation Act relating to the determination of the compensation in
accordance with the First Schedule, rehabilitation and resettlement in
accordance with the Second Schedule and infrastructure amenities in
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accordance with the Third Schedule shall apply to all cases of land
acquisition under the enactments specified in the Fourth Schedule to
the said Act. In our view, the Removal of Difficulties Order being in the
nature of executive order is not enforceable under Article 73 of the
Constitution of India and cannot amend the provisions of Section 105(1)
of the Fair Compensation Act. Fourth Schedule thus did not come into
effect atleast in so far as PMP Act is concerned.
54. A perusal of the said order clearly indicates that the
Reference has been made to the Ordinance 9 of 2014 promulgated on
31st December, 2014 thereby, inter alia, amending Section 105 of the
Fair Compensation Act to extend the provisions of the Act relating to the
determination of the compensation and rehabilitation and resettlement
to cases of land acquisition under the enactments specified in the
Fourth Schedule to the Fair Compensation Act. In such order
reference is also made to Ordinance 4 of 2015 promulgated on 3rd April,
2015 to give continuity to the provisions of the Fair Compensation Act
(Amendment) Ordinance, 2014. The Central Government has also
made reference to the Second Ordinance, 2015 (5 of 2015)
promulgated on 30th May, 2015 to give continuity to the provisions of
the RFCTLARR (Amendment) Ordinance, 2015 ( 4 of 2015). The said
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order states that the replacement Bill relating to the RFCTLARR
(Amendment) Ordinance, 2015 (4 to 2015) was referred to the Joint
Committee of the House for examination and report and the same is
pending with the Joint Committee.
55. It is further stated that as per the provisions of Article 123
of the Constitution, the Fair Compensation Act (Amendment) Second
Ordinance, 2015 (5 to 2015) shall lapse on the 31 st day of August, 2015
and thereby placing the land owners at the disadvantageous position,
resulting in denial of benefits of enhanced compensation and
rehabilitation and resettlement to the cases of land acquisition under
the 13 Acts specified in the Fourth Scheduled to the Fair Compensation
Act as extended to the land owners under the said Ordinance.
56. It is further provided in the said order that the Central
Government considers it necessary to extend the benefits available to
the land owners under the Fair Compensation Act to similarly placed
land owners whose land are acquired under the 13 enactments
specified in the Fourth Schedule; and accordingly the Central
Government keeping in view the aforesaid difficulties has decided to
extend the beneficial advantage to the land owners and uniformly
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apply the beneficial provisions of the Fair Compensation Act, relating
to the determination of compensation and rehabilitation and
resettlement as were made applicable to cases of land acquisition
under the said enactments in the interest of the land owners.
57. The Central Government accordingly exercised the powers
conferred by sub-section (1) of Section 113 of the Fair Compensation
Act and issued an order, called the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act
(Removal of Difficulties) Order, 2015. It is provided that the said order
would come into force with effect from the 1st day of September, 2015. It
was made clear by the said order that the provisions of the Fair
Compensation Act relating to the determination of compensation in
accordance with the First Schedule, rehabilitation and resettlement in
accordance with the Second Schedule and infrastructure amenities in
accordance with the Third Schedule shall apply to all cases of land
acquisition under the enactments specified in the Fourth Schedule to
the said Act.
58. The Petitioner has not disputed that the Petitioner is
already compensated to the extent of land utilized by the Respondents
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towards the right of user. The Notification dated 4th January, 2022
under Section 3 (1) of the PMP Act clearly provides that for the purpose
of laying the Pipeline, Government of India declared its intention to
acquire the Right of User therein. The objects and reasons of the PMP
Act clearly indicates that as a result of the implementation of plans for
development of petroleum resources in the Country, it is anticipated
that in next few years there will be a substantial increase in the
production of crude oil, natural gas and petroleum products by the
public sector oil fields and refineries in India. It has, therefore become
necessary to lay petroleum piplines in the Country to serve as an
efficient and cheap means of transportation and distribution of
petroleum and petroleum products.
59. The Constitutional Validity of the provisions of the PMP Act
was challenged by one of parties before the Gujarat High Court. The
Gujarat High Court dismissed the said petition and upheld the validity of
the provisions of the said PMP Act. The Supreme Court in case of
Laljibhai Kadvabhai Savaliya and Ors. Vs. State of Gujarat and Ors.
[(2016) 9 Supreme Court Cases 791] also upheld the validity of the
provisions of the PMP Act. Supreme Court in the said judgment after
construing the provisions of the PMP Act held that Section 18 of the
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PMP Act has specifically laid down that the provisions of PMP Act shall
be in addition to and not in derogation of any other law for the time
being in force relating to acquisition of land. The PMP Act is thus a
special enactment designed to achieve the purpose of laying pipelines
as efficient means of transportation and with this idea it is only the right
of user in the land to lay such pipelines which is acquired.
60. The Supreme Court held that the right of user sought to be
taken over under the provisions of PMP Act amounts to acquisition of
one of the facets of property rights which inhere in the owner/occupier.
For the acquisition of such right of user, the compensation is
prescribed in terms of Section 10 of the PMP Act. There are two
elements of compensation under the Section 10. The first part deals
with any damage, loss or injury sustained by any owner/occupier as a
result of exercise of powers conferred by Sections 4, 7 and 8 of the
PMP Act that is to say the actual damage, loss or injury sustained
because of entry upon and/or digging or marking levels and survey of
land under Section 4 or while actual laying of the pipeline including
digging of trenches and carrying of requisite material for such
operations under Section 7 or at any stage of maintenance,
examinations, repairing and altering or removing of pipeline in terms
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of Section 8 of the PMP Act.
61. It is held that the measure for determining such
compensation is given with sufficient clarity in sub-section (3) of
Section 10. The idea is to compensate the owner/occupier for actual
damage, loss or injury sustained by him as a result of the operations
carried out in terms of Section 4, Section 7 or Section 8 of the Act.
Supreme Court held that the damage/loss or injury to the property is
separately dealt with under first part of Section 10 and has to be
compensated in toto.
62. In paragraph 24 of the said judgment, the Supreme Court
held that the provisions of the PMP Act do specify the principles and the
manner in which the compensation is to be determined. Not only the
actual damage, loss or injury suffered as a result of exercise of
various activities in terms of Section 4, 6, 7 are compensated in toto but
additionally compensation linked to the market value of lands is also
to be given for acquisition of right of user in respect of such land. What
is taken over is mere right of user to lay the pipeline in the subsoil of
land in question, leaving the title to the land as well as the right to
possess that land intact in the hands of the landowner/occupier. It is no
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doubt that the enjoyment thereof after the pipelines are laid is impaired
to a certain extent, in that the owner/occupier cannot raise any
permanent construction or cause any excavation or plant any trees.
Barring such restrictions, the enjoyment and the right of possession
remains unaltered. It is held that the principles of compensation as
detailed in the PMP Act are thus reasonable and cannot in any way be
termed as illusory.
63. A decision of the Division Bench of this Court in case of
Gas Authority of India Limited & Anr. Vs. State of Maharashtra and
Ors. [2005(6) Bom.C.R. 527] has held that bare perusal of the sections
of PMP Act would reveal that the said Act is a complete Code for
dealing with a particular situation. Section 3 provides for the issuance
of a Notification specifying that it was necessary to acquire the right of
user of the of the land for the purpose of laying a pipe-line.
64. Supreme Court in case of Ashoka Marketing Ltd. and
Anr. Vs. Punjab National Bank and Ors. [(1990) 4 Supreme Court
Cases 406] has held that one such principle of statutory interpretation
which is applied is contained in the latin maxim: generalia specialibus
non derogant (a general provision does not derogate from a special
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one.) The principles laid down in the said judgment apply to the facts of
this case.
65. It is thus clear beyond any reasonable doubt that the
provisions of the Fair Compensation Act relating to the determination of
compensation in accordance with the First Schedule, rehabilitation and
resettlement in accordance with the Second Schedule and infrastructure
amenities in accordance with the Third Schedule shall apply to all
cases of land acquisition under the enactments specified in the Fourth
Schedule to the said Fair Compensation Act. As such, the
circumstances prescribed under Section 24 could be extended only by
virtue of issuance of Notification with in the time prescribed under
Section 105(3) and not otherwise.
66. Section 105(3) provides that the Central Government shall,
by notification, within one year from the date of commencement of this
Act, direct that any of the provisions of this Act relating to the
determination of compensation in accordance with the First Schedule
and rehabilitation and resettlement specified in the Second and Third
Schedules, being beneficial to the affected families, shall apply to the
cases of land acquisition under the enactments specified in the Fourth
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Schedule or shall apply with such exceptions or modifications that do
not reduce the compensation or dilute the provisions of this Act relating
to compensation or rehabilitation and resettlement as may be
specified in the notification, as the case may be.
67. Supreme Court in the case of State of West Bengal Vs.
Anindya Sundar Das and Ors. [2022 SCC Online SC 1382] held that
where there is a specific provision, as in that case Section 8(2) (a), it
was not open to the State Government to conjure up a lacunae or
omission and purportedly exercise the power to remove difficulties. It
is held that the State Government chose the incorrect path under
Section 60 by misusing the "removal of difficulty clause" to usurp the
power of the Chancellor to make the appointment. A Government
cannot misuse "removal of difficulty clause" to remove all obstacles in
its path which arise due to statutory restrictions. Allowing such actions
would be antithetical to the rule of law. Misusing the limited power
granted to make minor adaption and peripheral adjustments in a statute
for making its implementation effective, to side-step the provisions of
the statute altogether would defeat the purpose of the legislation.
68. The Supreme Court held that High Court was justified in
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coming to the conclusion that "in the guise of removing the difficulties,
the State cannot change the scheme and essential povisions of the
Act." The said judgment in case of State of West Bengal Vs. Anindya
Sundar Das and Ors. (supra) applies to the facts of this case. The
power conferred upon the Central Government under Section 113 of
the Fair Compensation Act could be exercised only if any difficulty
arises in giving effect to the provisions of that Act. In that case, the
Central Government may, by order, make such provisions or give
such directions not inconsistent with the provisions of this Act as may
appear to it to be necessary or expedient for the removal of the
difficulty. Such an order made under this Section also have to be laid
before each House of Parliament.
69. The said impugned order issued by the Central
Government under Section 113 clearly indicates that the three
Ordinances issued by the Central Government under Section 105(3)
admittedly lapsed and could not be made effective. The Central
Government having failed to issue such Notification within the time
prescribed and in the mode and manner prescribed under Section 105,
there is no scope of any extension of time to issue such Notification
beyond the period of one year from 1st January, 2014, when the said
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Fair Compensation Act came into effect.
70. In our view, the failure on the part of the Central
Government in following the said mandatory procedure could not be
ratified by issuance of the Removal of Difficulty Order by invoking
Section 113 of the Fair Compensation Act. The said removal of difficulty
order issued by the Central Government is without jurisdiction, as the
same is issued not for making such provision or give such directions
not inconsistent with the provisions of the Act but is to cover up the
default in not issuing notification within a time prescribed under Section
105(3). The time prescribed under section 105(3) to issue such
compensation in the mode and manner prescribed under Section 105(3)
is sacrosanct. In these circumstances, the Central Government could
not have exercised powers vested under Section 113 of the Fair
Compensation Act. Central Government under the guise of 'Removal of
Difficulties' cannot overcome the lapses in not complying with the
mandatory provisions prescribed in Section 105(3).
71. Supreme Court in case of Madeva Upendra Sinai and
Ors. Vs. Union of India and Ors. has held that the existence or arising
of a "difficulty" is the sine qua non for the exercise of the power under
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that clause cannot be invoked at all. Again the "difficulty" contemplated
by the clause must be a difficulty arising in giving effect to the
provisions of the Act and not a difficulty arising aliunde, or an
extraneous difficulty. Further the Central Government can exercise the
power under the clause only to the extent it is necessary for applying or
giving effect to the Act etc., and no further. It may slightly tinker with the
Act to round off angularities, and smoother the joints or remove minor
obscurities to make it workable, but it cannot change, disfigure or do
violence to the basic structure and primary features of the Act. It is
held that in no case, can it, under the guise of removing a difficulty,
change the scheme and essential provision of the Act. The judgment
of the Supreme Court in case of Madeva Upendra Sinai and Ors. Vs.
Union of India and Ors. (supra) applies to the facts of this case.
72. In our view, the impugned order and notification under
Section 113 of the Fair Compensation Act are issued not to give effect
to any difficulty arising in giving effect to the provisions of the Act but is
issued to cover up the lapses made by the Government by not issuing
notification under Section 105(3) within the time prescribed under
Section 105(3) which is not permissible. For such lapses or for curing
the difficulty in following mandatory procedure cannot be cured by
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invoking power under Section 113(1) of the Fair Compensation Act r/w
105 having been not issued in the mode and manner prescribed
thereunder. By taking shelter of Section 113 of the Act, Central
Government could not have given the effect of Notification of Section
105(3) by issuing removal of difficulties order.
73. A perusal of Section 105(1) of the Fair Compensation Act
clearly indicates that the said Section is subject to sub-section 3. If the
conditions prescribed under sub-section 3 of Section 105 are not
complied with, Section 105 (1) shall not apply to the enactments
relating to land acquisition specified in the Fourth Schedule. In our
view, the order passed by the Central Government by invoking powers
under Section 113 is inconsistent with the provisions of Section 105(1) r/
w. Section 105(3). On this ground also, the impugned order deserves to
be quashed and set aside.
74. In so far as the judgment of the Supreme Court in case of
Mahnadi Coal Fields Ltd. and Anr. Vs. Mathias Oram and Ors. [2022
SCC Online SC 1508] relied by Mr. Paranjape, Learned Counsel for the
Petitioner is concerned, Supreme Court in the said judgment has held
that when the Fair Compensation Act is brought into force w.e.f. 1 st
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January, 2014, the acquisition in favour of the Mahnadi Coal Fields
Ltd. continued to be under the provisions of the Coal Bearing Areas
(Acquisition and Development) Ac, 1957 to determine and disburse
compensation payable to landowners as expeditiously as possible,
preferably within six months.
75. It is held that under Clause (3) of the Coal Bearing Areas
(Acquisition and Development) Act,1957, the Central Government was
obliged to issue the notification within one year from the date of
commencement of that Act to ensure that its provisions relating to the
determination of compensation, were in accordance with the
provisions in the First Schedule and rehabilitation and resettlement in
accordance with with the Second and Third Schedules of that Act. It
was pursuant to this mandate, that on 28.08.2015 the Central
Government issued a notification in terms of Section 105(3).
76. However, the Central Government chose to exercise its
power to remove difficulties, under Section 113. This seems to be
because the notification was issued on 28.08.2015- beyond the period
prescribed in Section 105(3). In the facts of that case, the Award was
not declared before 1st January, 2014 i.e. the date on which the Fair
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Compensation Act came into force. The land owners had also thus
invoked the provisions of Section 24 of the Fair Compensation Act.
77. In view of the judgment of Constitutional Bench of the
Supreme Court in case of Indore Development Authority Vs.
Manohar Lal & Ors. (supra). [2020 (8) SCC 1257], in our view, the
said judgment of the Supreme court in case of Mahnadi Coal Fields
Ltd. and Anr. Vs. Mathias Oram and Ors. (supra) is thus, clearly
distinguishable on the facts and would not assist the case of he
Petitioner. In the facts of this case, the compensation had already been
paid. The acquisition of right of user of the Petitioner's land were
passed in or about 2000 to 2010.
78. So far as the judgment of the Supreme Court in the case of
Union of India and Anr. Vs. Tarsem Singh and Ors. [(2019) 9
Supreme Court Cases 304] is concerned, the Supreme Court in the
said judgment has considered the acquisition under National Highways
Act, 1956. The Supreme Court in the said judgment, considered the
concession made by the Learned Solicitor General and accordingly
declined to interfere with the order passed by the High Court by refusing
the discretionary jurisdiction under Article 136 of the Constitution of
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India. There was no issue before the Supreme Court whether the
Central Government having failed to exercise the powers to issue
Notification under Section 105(3) within time prescribed, whether the
exercise of power under Section 113 by issuing removal of difficulties
order and giving same effect which could be done only by issuing
Notification under Section 105(3) or not otherwise. The judgment of
Union of India and Anr. Vs.Tarsem Singh and Ors. (supra)
therefore, would not assist the case of the Petitioner.
79. So far as the judgment delivered by the Division Bench of
this Court in the case of Shashikant s/o. Bhanudas Shelke and Ors.
Vs. State of Maharashtra and Ors. in Writ Petition No.2152 of 2017,
relied upon by the learned counsel for the Petitioner is concerned, this
Court had rendered a finding that the Respondents would need to
excavate pipeline, if there is a damage, leakage, maintenance etc. and
that the land became unbuildable. In our view, even the judgment in
the case of Shashikant s/o. Bhanudas Shelke and Ors. Vs. State of
Maharashtra and Ors. (supra) is clearly distinguishable on facts of
this case.
80. So far as the judgment of the Supreme Court in case of
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Brahampal Alias Sammay and Anr. Vs. National Insurance
Company [(2021) 6 Supreme Court Cases 512] is concerned, the
Supreme Court has interpreted the provisions of the Motor Vehicles Act,
1988 and has held that Chapter XII of the Act is a beneficial legislation
intended at protecting the rights of victims affected in road accidents.
Moreover, the Act is a self-contained code in itself which provides
procedures for filing claims, for passing of award and for preferring
an appeal. Even the limitations for preferring the remedies are
contained in the code itself. The Supreme Court held that the
interpretation of a beneficial legislation must be remedial and must be
in furtherance with the purpose which the statute seeks to serve. In our
view, the said judgment relied upon by the Learned Counsel for the
Petitioner does not even apply remotely to the facts of this case.
81. Mr. Khandeparkar, learned counsel for Respondent No.2
placed reliance on the judgment of the Supreme Court in case of
Municipal Corporation of Delhi Vs. Gurnam Kaur [(1989) 1 Supreme
Court Cases 101]. The said judgment relied upon by the learned
counsel for Respondent No.2, on the issue; where the judgments relied
upon by the Petitioner in support of his submission amounts to
precedents sub silentio is concerned, in our view would apply to the
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facts of this case. The issue raised by Respondent No.3 in this petition
are not the issues raised by the Respondent before the Supreme Court
in those judgments which are relied upon by the Petitioner. We do not
find any infirmity in the impugned order passed by the competent
authority and thus, does not warrant any interference in this Writ
Petition. In our view, Writ Petition is devoid of merit.
82. We accordingly pass the following order:
ORDER
(i) Writ Petition is dismissed.
(ii) Rule is discharged.
(iii) In view of dismissal of the Writ Petition, Interim Application
No.30285 of 2022 does not survive and is accordingly dimissed.
(iv) No order as to costs.
(M.M. SATHAYE, J.) (R.D. DHANUKA, J.)
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