And Another vs Sibapriya Das Gupta And Another
2023 Latest Caselaw 5570 Cal

                   In the High Court at Calcutta
                  Constitutional Writ Jurisdiction
                           Appellate Side


The Hon'ble Justice Sabyasachi Bhattacharyya

                       WPA No. 13787 of 2023

        Indian Oil Corporation Limited (Pipeline Division)
                          and another
                               Vs.
                Sibapriya Das Gupta and another



     For the petitioners           :     Mr. Pratik Dhar,
                                         Mr. Biswaroop Bhattacharya,
                                         Ms. Sharmistha Ghosh

     For the respondent no.2       :     Mr. Jayanta Mitra,

Mr. Indranil Nandi, Mr. Deba Prasad Samanta, Mr. Sayak Konar

Hearing concluded on : 17.08.2023

Judgment on : 25.08.2023

Sabyasachi Bhattacharyya, J:-

1. The petitioner no.1 is the Indian Oil Corporation (IOCL), Pipeline

Division and petitioner no.2 is its Deputy General Manager

(Construction).

2. The present challenge has been preferred by the IOCL against a

re-assessment of compensation payable by the IOCL to the

private respondent no.2 for acquiring right of user of the land of

respondent no. 2. The respondent no.1/Competent Authority

(CA) has revised, by the impugned order, the compensation

originally granted and has enhanced the same.

3. Learned senior counsel appearing for the petitioners contends

that Section 10(1) of the Petroleum and Minerals Pipelines

(Acquisition of Right of User Inland) Act, 1962 (hereinafter

referred to as, "the 1962 Act") provides that any person interested

in the land, who has suffered any damage, loss or injury in the

exercise of powers conferred on the authorities by Sections 4, 7 or

8 of the Act, is allowed to approach for compensation before the

Competent Authority in the first instance. If the amount

adjudicated or awarded by the CA is not acceptable to either of

the parties, an appeal is provided for before the District Judge.

4. It is argued that sub-section (3) of Section 10 stipulates the

respective powers of the CA or the District Judge while so

determining compensation.

5. The petitioners argue that in the present case, the CA exceeded

his jurisdiction in reviewing his own order, instead of relegating

the private respondent to the appropriate appellate authority,

that is, the District Judge. Hence, the impugned order is vitiated

by lack of inherent jurisdiction.

6. It is next contended that although in a previous writ petition

between the same parties a question arose as to the pendency of

an application before the CA, which resulted in an order passed

by a coordinate Bench, recording the consent of counsel for the

present petitioners as well, for the CA to adjudicate all issues, the

direction was restricted to an adjudication by the CA under the

provisions of the 1962 Act, as reflected from the order itself.

7. Moreover, the consent was given in a different context, within the

perspective of the application filed by the IOCL for an out of court

settlement before the CA and could not be broadened to mean a

consent for re-adjudication on merits.

8. That apart, it is argued that no court or consent can confer

jurisdiction on an authority which otherwise lacks it.

9. Learned senior counsel appearing for the petitioners cites

Kalabharti Advertising Vs. Hemant Vimalnath Narichania and

others, reported at (2010) 9 SCC 437, where it was held that the

court cannot confer a jurisdiction upon any authority. Conferring

jurisdiction upon a court/tribunal/authority is a legislative

function and the same cannot be conferred either by the court or

by the consent of the parties. Such an order passed by the High

Court, it was held, is without jurisdiction and, therefore, a nullity.

10. Learned senior counsel next cites S. Sethuraman Vs. R.

Venkataraman and others, reported at (2007) 6 SCC 382. It was

observed therein by the Supreme Court that despite having

submitted to the jurisdiction of an appellate authority, the

petitioners could not be stopped from challenging the final order

of the appellate authority through a writ petition. It was observed

that the principle of estoppel has no application in a case of the

nature as arose therein and the appellant did not and could not

confer upon an authority a jurisdiction which it did not derive

under the statute. If jurisdiction cannot be conferred by consent,

it cannot clothe the authority to exercise the same in an illegal

manner, it was held. The jurisdiction of the appellate authority

pursuant to the order the Division Bench in the said case was

passed on consent of the parties, which was not in dispute, but

the court held that only because the appellant consented to re-

examination of the matter by the appellate authority, which it was

otherwise entitled to, the same by itself could not have been

found to be a ground for his becoming ineligible to challenge the

final order passed by the appellate authority when a large

number of jurisdictional errors were committed by it.

11. Learned senior counsel appearing for the respondent-Authorities

places stress on Section 10(3) of the 1962 Act. It is submitted

that the said sub-section clearly enumerates similar and co-equal

powers on the CA and the District Judge insofar as adjudication

under the said Section is concerned. As such, the delineation of

jurisdiction between the first authority and the appellate

authority is not so stark in Section 10 so as to say that there is

absolute lack of inherent jurisdiction of the CA to grant further

compensation.

12. That apart, it is contended that the adjudication was invited by

the IOCL itself, which had made an application before the CA

after the initial compensation was awarded. Also, a clear

admission was made on behalf of the IOCL before the previous

writ court to the effect that the adjudication of the dispute be

relegated to the CA. The respondents, after taking a chance

before the CA and submitting to the jurisdiction of the authority,

cannot be permitted to resile now by challenging the jurisdiction

of the authority after an unfavourable order was passed.

13. Learned senior counsel for the respondents cites Nilkantan and

Bros. Construction Vs. Superintending Engineer, National

Highways, Salem and others, reported at AIR 1988 SC 2045. The

contention of the petitioner in the case was that the arbitrator

had no jurisdiction to proceed with and complete the arbitration.

The court held that he entered into the task of adjudication with

the knowledge and consent of the petitioner and the petitioner

had his active participation in the proceeding before him.

14. It was observed that the petitioner had knowledge of the change

of the incumbent but did not protest and the proceedings went on

before the new incumbent. The petitioner, thus, had knowledge

of the alleged defect and had acquiesced in the proceedings. It

was observed that the objection as to violation of principles of

natural justice could not be entertained. If the parties to the

reference either agree beforehand to the method of appointment,

or afterwards acquiesce in the appointment made, with full

knowledge of all the circumstances, they will be precluded from

objecting to such appointment as invalidating subsequent

proceedings.

15. The petitioners also rely on Arbn. Jupiter General Insce. Co. Ltd.

Vs. Corporation of Calcutta, reported at 1956 Calcutta 470, where

it was observed that a party participating in arbitration

proceedings without protest cannot afterward challenge the whole

proceedings as without jurisdiction on ground of known disability

of other party.

16. Learned senior counsel appearing for the petitioners also cites a

judgment of the Supreme Court rendered in Prasun Roy Vs.

Calcutta Metorpolitan Development Authority and others, reported

at AIR 1988 SC 205, where it was held that the principles of

waiver and estoppel are not only applicable where an award has

been made but also where a party to the proceeding challenges

the proceedings in which he participated. In the facts of the case,

it was held, there was no demur but something which can be

called acquiescence on the part of the respondents which

precludes them from challenging the proceeding.

17. Heard learned counsel for the parties. Section 10 of the 1962 Act

is set out below:

"10. Compensation.- (1) Where in the exercise of the powers conferred by Section 4, Section 7 or Section 8 by any person, any damage, loss or injury is sustained by any person interested in the land under which the pipeline is proposed to be, or is being, or has been laid, the Central Government, the State Government or the corporation, as the case may be, shall be liable to pay compensation to such person for such damage, loss or injury, the amount of which shall be determined by the competent authority in the first instance.

(2) If the amount of compensation determined by the competent authority under 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 the that District Judge.

(3) 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 or standing crops, if any, on the land while exercising the powers under Section 4, section 7 or section 8;

(ii) the temporary severance of the land under which the pipeline has been laid from other lands belonging to, or in the occupation of, such person; or

(iii) any injury to any other property, whether movable or immovable, or the earnings of such persons caused in any other manner:

Provided that in determining the compensation no account shall be taken of any structure or other improvement made in the land after the date of the notification under sub-section (1) of section 3.

(4) Where the right of user of any land has vested in the Central Government, the State Government or the corporation, the Central Government, the State Government or the corporation, as the case may be, shall, in addition to the compensation, if any, payable under sub-section (1), be liable to pay the owner and to any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such vesting, compensation calculated at ten per cent of the market value of that land on the date of the notification under sub-section (1) of Section 3.

(5) The market value of the land on the said date be determined by the competent authority and if the value so

determined by that authority is not acceptable to either of the parties, if shall, on application by either of the parties to the District Judge referred to in sub-section (2), be determined by that District Judge.

(6) The decision of the District Judge under sub-section (2) or sub-section (5) shall be final."

18. Sub-section (1) thereof is clear on the issue that the CA is the

authority to determine the amount of compensation "in the first

instance". Sub-section (2) of Section 10 only comes in where the

compensation determined by the CA under sub-section (1) is not

acceptable to either of the parties, when an application is to be

made by the aggrieved party to the District Judge having

territorial jurisdiction, to be determined by the District Judge.

19. Thus, the compartmentalization of the first authority and the

appellate authority is clear and unambiguous in the statute. The

reliance of the respondents on sub-section (3), to portray that the

said provision confers co-equal powers on the competent

authority and the District Judge, is rather misplaced. It is clearly

stipulated in sub-section (3) that the CA or the District Judge,

while determining the compensation under sub-section (1) or sub-

section (2), "as the case may be"......(emphasis supplied). Thus,

the powers are not co-equal between the two authorities but to be

exercised by the CA or the District Judge, under sub-section (1)

or sub-section (2) respectively. The expression used to distinguish

the two is "as the case may be".

20. Sub-section (3) is less on the competence and power of the

authorities and more on the modality of assessing damage or

loss. The yardsticks for so assessing have been stipulated in sub-

section (3) as the removal of trees or standing crops, temporary

severance of the land, any other injury to property or the earnings

of the person concerned, etc.

21. In fact, sub-section (5) of Section 10 further reiterates that the

market value of the land on the relevant date shall be determined

by the CA and if the value was 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. The Section

continues to stipulate in sub-section (6) that the decision of the

District Judge under sub-section (2) or sub-section (5) shall be

final. Thus a terminus is given to the proceeding once the matter

is decided by the appellate authority, that is, the District Judge,

which is, obviously, absent in the case of the CA, which is but the

authority in the first instance.

22. Thus, the clear delineation of authorities between the CA and the

District Judge cannot come under the scanner, even on a plain

reading of the relevant provisions of law.

23. The next question which arises is the alleged submission of the

IOCL to the jurisdiction of the CA.

24. However, a clue in that regard has been given in the impugned

order of the CA itself. In the said order, it is recorded that by an

e-Mail dated 25.01.2022 the matter was referred to the CA by the

GM (Const.), IOCL, Haldia for out of courts settlement (emphasis

supplied). The CA further continues that consequent upon

receiving the mail, the proceeding-in-question was initiated which

was ultimately kept in abeyance in pursuance to the pendency of

the previous writ petition before this court.

25. The CA observes that however, having regard to the subsequent

judgment dated 23.03.23 passed by this Court, the CA is

considering the representation dated 17.2.2022 made by the

petitioner before the CA and that therefore, it cannot be

contended by IOCL that the CA had become functus officio and

cannot decide the question of payment of additional

compensation or further compensation to the petitioner. The CA

further derived his perceived power from Section 2 of the 1962

Act, apart from the direction of the coordinate Bench of this

Court. In such context, we are to scrutinize the relevant

observations in the order of the coordinate Bench.

26. The said judgment and order was delivered on March 23, 2023 in

WPA No.19895 of 2021 between the private respondent and the

present petitioners.

27. It was observed in paragraph no.3 that in course of hearing,

learned senior counsel appearing for the present respondents

drew the attention of the court to the letter dated February 17,

2022 which was addressed to the CA and it was submitted that

issue regarding payment of compensation in terms of the 1962

Act was pending for consideration before the CA and the court,

instead of entering into the merits of the claims and counter-

claims of the parties, may direct the CA to decide the prayer for

payment of compensation contained in the letter dated February

17, 2022.

28. Learned senior counsel appearing for the IOCL did not oppose the

prayer to the effect that a direction may be passed upon the CA

for deciding the prayer for payment of compensation to the

petitioner under provisions of the 1962 Act. In such context, the

court observed that the payment of a sum of Rs.42,12,244/- to

the present private respondent on account of compensation was

not in dispute but the "present grievance of the petitioners is with

regard to enhancement of compensation and payment of any

further sums" in terms of the provisions of the 1962 Act.

Accordingly, the writ petition was disposed of by directing the CA

to consider the prayer of the petitioner therein (present

respondent no.2) contained in the letter dated February 17, 2022

within the time as stipulated therein.

29. A careful perusal of the said order shows that the direction of the

Court was passed on a subtly different footing than the

concession given by the IOCL. Learned counsel appearing for the

IOCL had not opposed the prayer of the petitioner that a direction

be passed upon the CA "deciding the prayer for payment of

compensation to the petitioner under the provisions of the 1962

Act".

30. The said submission was not a clear-cut and unambiguous

submission to the authority of the CA to re-adjudicate the issue

of compensation afresh on merits. The decision on the prayer for

payment of compensation of the petitioner under the provisions of

the 1962 Act implicitly contemplates an element of adherence to

the 1962 Act, as well as adjudication on the prayer of the private

respondent herein. Section 10 is a part of the 1962 Act and

delineates the respective jurisdictions of the first authority (CA)

and the appellate authority (District Judge). Again, a direction to

arrive at a decision on the prayer of the present respondent no.2

did not mean that such prayer had to be necessarily allowed. A

decision may also include adjudication on the question of

authority and jurisdiction. As such, it cannot be said that there

was an unqualified submission of the IOCL to the jurisdiction of

the CA to re-adjudicate the compensation granted to the private

respondent.

31. Thus, distinguishing the consent from the ordering portion, we

find that the direction of the learned Single Judge was for the CA

to "consider the prayer of the petitioner contained in the dated

February 17, 2022". A consideration of the prayer need not

necessarily mean that the CA has to allow it. Such a direction for

consideration also includes the option to reject, including a

rejection on the ground of jurisdiction as well. Thus, in the first

place, neither the submissions of the IOCL nor the direction of

the coordinate Bench "conferred" any jurisdiction on the CA,

which it does not otherwise have in law. Hence, the adjudication

of the prayer of the private respondent herein, as embodied in its

letter dated February 17, 2022, could very well have culminated

in rejection on the ground of jurisdiction alone.

32. Another aspect of the matter is that the proceeding before the CA

had not been initiated either on the direction of the coordinate

Bench or on the letter dated February 17, 2022 of the respondent

no.2 but on an e-Mail dated January 25, 2022 by the IOCL

specifically for "out of courts settlement". Although there is some

doubt as to whether even such exercise can be entered into by the

CA, such doubt may also be applicable to the appellate authority

and, as such, was rightly taken up by the CA to avoid

unnecessary relegation of the parties from pillar to post.

33. However, as the said e-Mail said, the said consideration was

confined essentially to an out of courts settlement which, by

definition, is an agreed resolution between the parties. The

moment such resolution failed and there was no consensus ad

idem, the CA ought to have refused to interfere and relegate the

aggrieved party to an appeal before the District Judge, instead of

assuming authority which it does not have in law. Thus, the

assumption of jurisdiction by the CA is patently de hors the law

and cannot be given a sanction by a court of law.

34. The Act of 1962 does not confer any power of review or re-

adjudication on the CA.

35. In the present case, the Panchnama executed in favour of the

respondent no.2, for the purpose of awarding compensation in

the first place to the respondent no.2, has been annexed to the

writ petition and considered by the CA as well in the impugned

order.

36. The CA, in his order, refers to him not being consulted. However,

the complete sentence of the CA shows that the said consultation

was with regard to agreements entered into between the IOCL and

third parties, who according to the respondent no.2 were similarly

placed and had got more compensation. The same was a

component of the challenge of the respondent no.2 before the CA

afresh after the compensation was awarded to him in the first

place.

37. In fact, there is no dispute that the CA was a party to the

Panchnama which granted compensation in the first instance to

the respondent no.2 within the contemplation of Section 10(1) of

the 1962 Act.

38. Hence, as clarified in sub-sections (2), (3) and (5) of Section 10 of

the 1962 Act, the scope of challenge by a party to whom the

adjudication is not acceptable, in only before the District Judge

having territorial jurisdiction and not before the CA afresh.

Hence, the argument of the present petitioners regarding lack of

jurisdiction of the CA is justified.

39. It has to be added here that the argument regarding the IOCL

having acquiesced to the jurisdiction of the CA cannot be

accepted also because it took the objection as to the authority of

the CA, who was argued to have become defunct or functus

officio, before the CA himself. The impugned order of the CA

records such argument. Such objection, at the outset of the

adjudication by the CA, read in conjunction with the

interpretations of the submission of the IOCL before the

coordinate Bench and the direction given by the said Bench,

unerringly indicates that the IOCL never accepted the authority of

the CA to decide the question of adjudication afresh on merits.

40. Hence, in view of the above discussions, WPA No.13787 of 2023 is

allowed on contest, thereby setting aside the impugned order

passed by the Competent Authority/respondent no.1 dated May

22, 2023 whereby the compensation to be awarded to the

respondent no.2 was decided afresh by the respondent no.1.

However, in view of the pendency of the litigation for so long, it is

deemed that the respondent no.2 is not yet out of time for

preferring a challenge against the compensation awarded in the

first instance before the concerned District Judge having

territorial jurisdiction to decide a challenge under Section 10(2) of

the 1962 Act.

41. If the respondent no.2 prefers such a challenge, it will be deemed

that the starting point of the limitation for the same commences

as on this date. In such a case, the concerned District Judge

shall decide the issues involved therein in accordance with law

and without being influenced unnecessarily by any of the

observations made herein, since this Court has not entered into

the merits of the enhancement/further compensation sought by

the respondent no.2.

42. There will be no order as to costs.

43. Urgent certified server copies, if applied for, be issued to the

parties upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )