Nur Ali vs The State Of Assam And 3 Ors
2021 Latest Caselaw 2981 Gua

                                                            Page No.# 1/11

GAHC010150382021




                     THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           WP(C)/1375/2021

         NUR ALI
         S/O ABDUL HAKIM
         RESIDENT OF VILLAGE KATHLAPATHAR
         PO CHAPARGURI
         PS AND DIST BARPETA
         ASSAM


          VERSUS

         THE STATE OF ASSAM AND 3 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM
         LAND AND REVENUE DEPARTMENT
         DISPUR
         GUWAHATI 06

         2:THE DEPUTY COMMISSIONER
         BARPETA
         ASSAM
          3:THE CIRCLE OFFICER

         SARUPETA REVENUE CIRCLE
         DIST BARPETA
         ASSAM
         4:THE AUTHORISED OFFICER
         GAIL (INDIA) LTD.
         BGPL PROJECT CONSTRUCTION OFFICE
         HOTEL ROYALE DE CASE
         WIRELESS
         GUWAHATI 28
         ------------
         Advocate for : MR A ALI
         Advocate for : GA
                                                                                    Page No.# 2/11

               ASSAM appearing for THE STATE OF ASSAM AND 3 ORS



                                      BEFORE
                     HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                           JUDGMENT

Date : 22-11-2021

In this writ petition preferred under Article 226 of the Constitution of India, the petitioner has assailed a communication dated 15.11.2019, whereby, the petitioner has been notified to the effect that the construction of a pipeline would start at anytime over a plot of land covered by Dag no. 446 & Periodic Patta no. 7 ['the subject-plot', for short] located in Village - Katlapathar, Revenue Circle - Sarthebari, Mouza - Bhawanipur, District - Barpeta, as the Right of User over the subject-plot had been acquired by the Central Government in exercise of the powers conferred under Section 9[1] of the Petroleum and Mineral Pipelines [Acquisition of Right of User in Land] Act, 1962.

2. The petitioner has claimed that he is the owner of the subject-plot. According to the petitioner, due procedure has not been followed to acquire the Right of User over the subject- plot and as such, the action contemplated under the communication dated 15.11.2019 is illegal and arbitrary.

3. Heard Mr. A. Ali, learned counsel for the petitioner. Also heard Mr. P.S. Deka, learned Standing Counsel, Revenue Department for the respondent no. 1; Mr. N. Goswami, learned Junior Government Advocate for the respondent nos. 2 and 3; and Mr. S. Mitra, learned counsel for the respondent no. 4.

4. In response to the writ petition, the respondent no. 4 has filed its affidavit-in- opposition. The impugned notice dated 15.11.2019 has reflected that the Right of User over the subject-plot has been acquired by the Central Government in exercise of the powers conferred under sub-section [1] of Section 9 of the Petroleum and Mineral Pipelines [Acquisition of Right of User in Land] Act, 1962 ['the Act 1962' and/or 'the 1962 Act', for short].

5. Mr. Ali, learned counsel for the petitioner contending as above, has sought setting Page No.# 3/11

aside of the impugned notice dated 15.11.2019. He vehemently contended that the respondent no. 4 has no authority to issue such notice and the notice is void and non-est in law. He has further submitted that the compensation assessed by the Competent Authority is not adequate and as such, compensation is required to be enhanced by correctly assessing the damage caused to the subject-plot. On the other hand, Mr. Mitra, learned counsel for the respondent no. 4 has submitted that the compensation has been duly assessed by taking into account all the relevant factors into consideration after acquisition of the Right of User with due adherence of the statutory provisions. A part of the compensation has already been received by the petitioner. It is his further submission that if the petitioner is aggrieved by the amount of compensation so assessed, the petitioner has remedy under the provisions of the 1962 Act and as such, the writ petition is not maintainable.

6. The Petroleum and Mineral Pipelines [Acquisition of Right of User in Land] Act, 1962 has provided for the acquisition for Right of User in land for laying pipelines for the transport of petroleum and minerals and for matters connected therewith. On 07.09.2018, the Petroleum and Natural Gas Regulatory Board approved a project of 'Laying, building, operating or expanding Barauni - Guwahati Natural Gas Pipeline [BGPL] as an integral part of Jagdishpur - Haldia - Bokaro - Dhamra Natural Gas Pipeline network [JHBDPL]' ['the Project', for short] under Regulation 17[1] of the Petroleum and Natural Gas Regulatory Board [Authorizing Entities to Lay, Build, Operate or Expand Natural Gas Pipelines] Regulations, 2008 read with Section 42 of the Petroleum and Natural Gas Regulatory Board Act, 2006. The respondent no. 4 has been entrusted to complete the activities of laying, building or expansion activities of Barauni - Guwahati Natural Gas Pipeline [BGPL] and commissioning the natural gas pipeline project, as integral part of the JHBDPL project, within the stipulated time period. By a notification dated 14.09.2018, published in the Gazette of India in its issue dated 19.09.2018, the Government of India had authorized one Shri Sazzad Alam, Deputy Secretary to Government of Assam to perform the functions of Competent Authority under Section 2[a] the 1962 Act for all natural gas pipelines of the respondent no. 4 in the State of Assam. A notification dated 02.07.2019 of the Ministry of Petroleum and Natural Gas had been published in the Gazette of India in its issue dated 08.07.2019. In the said notification, it was notified that the Government of India had felt it necessary in public interest that for Page No.# 4/11

transportation of natural gas through Barauni - Guwahati Natural Gas Pipeline [BGPL], as an integral part of JHBDPL Project, in the State of Assam, a pipeline should be laid by the respondent no. 4 and for the purpose of laying the said pipeline, it was necessary to acquire the Right of User in the land under which the said pipeline was proposed to be laid. The proposed land where the Right of User in the land was sought to be acquired, had been described in the Schedule annexed to the said notification. The notification was issued in exercise of the powers conferred by sub-section [1] of Section 3 of the Act, 1962, whereby, the Government of India had declared its intention to acquire the Right of User therein.

7. The subject-plot of the petitioner was included in the said notification dated 02.07.2019. A notice dated 08.06.2019 was issued by the Competent Authority under Section 3[1] of the 1962 Act to one Hakim Miya in connection with the subject-plot. It has been stated at the bar that Hakim Miya, since deceased, was the father of the petitioner and the name of Hakim Miya has been recorded as the pattadar in relation to the subject-plot and Hakim Miya was also known as Abdul Hakim Miya. As per the said notification dated 02.07.2019, the Right of User in an area of 5 ares and 61 square metres, covered by Dag no. 446, of the subject-plot is being acquired. As per the Jamabandi, Annexure-B to the writ petition, the areas under Dag no. 446 is 3 Bighas 2 Kathas and 3 Lessas and the same is mutated in the name of Abdul Hakim Miya. By the said notice, it was informed to the noticee that even after the acquisition of the Right of User over the subject-plot, the noticee would retain his land holding rights over the subject-plot but as per the provisions of Section 9 of the 1962 Act, any kind of construction, planting of trees and any types of boring i.e. tube well, open well, etc. over the subject-plot shall be strictly prohibited. The matter of acquiring the land by the Government of India for the BFPL Project was intimated to the noticee by the said notice dated 08.06.2019 and it was also informed that compensation over the land, crops and other properties would be made according to the provisions of the 1962 Act and in case the noticee had any objection to the laying of the pipeline over the subject-plot, he could file his objection before the Competent Authority within 21 [twenty one] days from the date of issuance of the notice. The notice further mentioned that the objection would be heard on 31.08.2019 at the venue mentioned therein.

8. It has been asserted by the respondent no. 4 that the notice dated 08.06.2019 was Page No.# 5/11

duly served upon the petitioner. The notice was, however, not issued in the name of the petitioner but issued in the name of Hakim Miya who was the father of the petitioner, because the subject-plot till then was not mutated in the name of the petitioner. No objection is stated to have been received by the Competent Authority after the notification dated 02.07.2019 and the notice dated 08.06.2019 in relation to the subject-plot. The petitioner too has not disputed the said position. On 04.11.2019, another notification was issued by the Ministry of Petroleum and Natural Gas, Government of India and the same was published in the Gazette of India in its issue dated 07.11.2019. As per the said Gazette notification dated 08.07.2019, which was in continuation of the notification dated 02.07.2019 copies of which were stated to have been made available to the public, the objections received from the public to the laying of the pipeline had been considered and disposed of by the Competent Authority; the Competent Authority had thereafter submitted its report to the Government of India under Section 6[1] of the 1962 Act; and the Government of India after considering the said report and on being satisfied that the land mentioned in the notification would be required for laying the pipelines, had decided to acquire the Right of User therein. By the notification dated 04.11.2019, the Government of India had declared that the Right of User in the land specified in the Schedule appended to the said notification had been acquired for laying the pipeline in exercise of the powers conferred under Section 6[1] of the 1962 Act.

9. The notification dated 04.11.2019 had further declared in exercise of the powers conferred under Section 6[4] that the Government of India had ordered that the Right of User in land, described in the Schedule, for laying the pipeline shall, instead of vesting in the Government of India, vest, on and from the date of publication of the declaration in the respondent no. 4, free from all encumbrances. Sub-section [4] of Section 6 of 1962 Act which starts with a non-obstante clause, states that notwithstanding anything contained in sub- section [2], the Central Government may, on such terms and conditions as it may think fit to impose, direct by order in writing, that the Right of User of the land for laying the pipelines shall, instead of vesting in the Central Government vest, either on the date of publication of the declaration or, on such other date as may be specified in the direction, in the State Government or the corporation proposing to lay the pipelines and thereupon the right of such user in the land shall, subject to the terms and conditions so imposed, vest in that State Page No.# 6/11

Government or corporation, as the case may be, free from all encumbrances. Thus, the power is available with the Central Government to vest the Right of User for laying the pipeline in a corporation like the respondent no. 4, which is a Government of India Undertaking. It is subsequent to the afore-mentioned notification dated 04.11.2019, the impugned notice dated 15.11.2019 was served upon the petitioner, whereby, it was informed to the noticee, Hakim Miya whose interest is represented by the petitioner as his son, that the distribution of the compensation would be done according to the measurement and the ownership certificate of the subject-plot. As the Right to User in the subject-plot has been duly vested upon the respondent no. 4 by the Central Government and the impugned notice dated 15.11.2019 had been issued by the Competent Authority, the contention of the petitioner regarding the invalidity of the impugned communication dated 15.11.2019 does not have any force and is found not sustainable.

10. It transpires from the affidavit-in-opposition of the respondent no. 4 that the Competent Authority in exercise of the powers conferred on it under sub-section [1] of Section 10 of the 1962 Act, after a joint-verification report/panchnama carried out by the revenue staff in presence of the representatives of the land owner and the respondent no. 4, determined the compensation for the lands notified under the afore-mentioned notifications and the same included Dag no. 446 also. In so far as the subject-plot is concerned, the Competent Authority had determined the compensation in the following manner :-

      HEAD                 AMOUNT
Compensation for Land      Rs. 1,42,271.11 (Rupees one lac forty
                           two thousand two hundred seventy
                           one and eleven paise only)
Compensation for Zirat     Rs. 61,280/- (Rupees sixty one
                           thousand two hundred and eighty
                           only)
Compensation for Zirat     Rs. 61,280/- (Rupees sixty one
                           thousand two hundred and eighty
                           only)

11. From the documents annexed to the affidavit-in-opposition, it is seen the petitioner was asked to fulfill various forms at the pre-disbursal stage including declaration form for Page No.# 7/11

receiving the compensation through electronic mode, and submit indemnity bonds, photo copy of the passbook, proof of identity and proof of address, etc. apart from signing those documents. It is noticed that the petitioner had complied with all the pre-disbursal formalities including signing of the indemnity bonds for one installment for Zirat compensation and one installment for land compensation. Thereafter, an amount of Rs. 61,280/- was disbursed to the petitioner on 04.03.2020. Subsequently, another amount of Rs. 1,42,271.11 had been disbursed to the petitioner on 20.03.2021 in his bank account. However, the petitioner has not complied with the pre-disbursal formalities to receive the second installment of Zirat compensation amounting to Rs. 61,280/- till date and as a result, the said amount of Rs. 61,280/- has not been disbursed to him till date.

12. From the above, it has emerged that the petitioner has already received one amount towards land compensation for the subject-plot and another amount towards Zirat compensation. The second installment towards Zirat compensation amounting to Rs. 61,280/- has not been received by the petitioner as he has not complied with the pre-disbursal formalities with regard to the said amount. One of the installments was disbursed to the petitioner prior to institution of the writ petition and the other amount had been received by the petitioner after institution of the writ petition. The petitioner has neither challenged the notification dated 04.07.2019 nor the notification dated 04.11.2019. The petitioner has not also denied about the notice dated 08.06.2019. As noticed above, he has already received two of the three amounts assessed by the Competent Authority. The petitioner has not also denied about receipt of the afore-mentioned two amounts. The petitioner cannot blow hot and cold at the same time as per his whims. In the above fact situation obtaining in the case, only issue that remains to be considered is the grievance of the petitioner regarding inadequate amount of compensation in respect of the subject-plot, since it is not open for the petitioner to make any assailment with regard to the notification dated 04.07.2019 and the notification dated 04.11.2019 whereby the Right of User in respect of the subject-plot had already been acquired by the Government of India for the Project and thereafter, vested in the respondent no. 4.

13. Mr. Mitra has contended that the 1962 Act has provided for a remedy in case a land owner is aggrieved by the amount of compensation assessed by the Competent Authority. Mr. Page No.# 8/11

Ali has submitted that instead of approaching the forum prescribed by the 1962 Act the petitioner would approach the respondent no. 4 for assessment of just and adequate compensation by way of a representation and in such an event, the respondent authorities may take the same into consideration for proper assessment of the compensation.

14. The said submission of the petitoiner cannot be accepted in view of the specific provisions contained in Section 10 of the 1962 Act. For ready reference, the contents of Section 10 of the 1962 Act are quoted hereunder in extenso :-

"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 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.

Page No.# 9/11

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

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

15. As is evident from above, the Competent Authority had already determined the compensation in exercise of the statutory powers vested on him and it is not within the ambit and scope of the respondent no. 4 on its own to determine the compensation under the 1962 Act. Sub-section [2] of Section 10 of the 1962 Act has prescribed that if an amount of compensation determined by the Competent Authority is not acceptable to either of the parties, the amount of compensation shall, on application by either of the parties to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, be determined by that District Judge. While determining the compensation, the District Judge shall have due regard to the damage or loss sustained by any person interested by considering the factors indicated in the provisions of Section 10.

16. It is found that the governing statute itself i.e. the Petroleum and Minerals Pipelines [Acquisition of Right of User in Land] Act, 1962 has provided for a remedy. It is apt to say that when a statutory forum is created by law for redressal of grievances, a writ petition under Article 226 of the Constitution should not ordinarily be entertained ignoring the statutory prescription, more so, when such statutory remedy is adequate and efficacious. At the same time, it is also true that the rule of exclusion of writ jurisdiction in view of availability of an alternative remedy is a rule of discretion and not of compulsion. A Page No.# 10/11

Constitution Bench of the Hon'ble Supreme Court of India in Thansingh Nathmal vs. the Superintendent of Taxes, Dhubri and others, reported in AIR 1964 SC 1419, discussing the scope of jurisdiction under Article 226 of the Constitution of India, observed as under :-

"7. ........................ The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Article 226 of the Constitution, the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."

17. Admittedly, the assessment of compensation for the subject-plot has already been determined by the Competent Authority and there is already a statutory remedy available to the petitioner with regard to his grievance pertaining inadequate compensation which can be redressed if he approaches the learned District Judge of the territorial jurisdiction where the subject-plot is situated. For determination, the District Judge shall have to give due regard to the damage or loss sustained by the person by taking note of the factors indicated in sub- section [3] and sub-section [5] of Section 10 of the 1962 Act, for which evidence - oral Page No.# 11/11

and/or documentary - may have to be led by the parties, for which the writ jurisdiction is not a proper remedy.

18. Accordingly, this writ petition with regard to the issues raised by the petitioner regarding the impugned notice dated 15.11.2019 is found not merited and accordingly, the same is not entertained, reserving, however, the liberty to the petitioner to approach the concerned District Judge by filing an application regarding his grievances about assessment of inadequate compensation. In the event such an application is filed, the concerned District Judge shall dispose of the same as per the provisions of the 1962 Act. It is also observed that the receipt of a part of the compensation amount assessed by the Competent Authority by the petitioner shall not be a bar for him in approaching the concerned District Judge for enhancement of the said compensation. The petitioner shall, accordingly, approach the District Judge within a period of 1 [one] month from today and on receipt of such application, if any, the learned District Judge shall dispose of the same after giving due notice to the concerned stakeholders and in accordance with the provisions of Section 10 of the 1962 Act. With the above observations and directions, this writ petition stands disposed of. The interim order dated 03.03.2021 stands recalled. No cost.

JUDGE

Comparing Assistant