Dhanuben Lallubhai Patel vs Oil And Natural Gas Corporation Of ...
2022 Latest Caselaw 1587 Guj

   C/SCA/3803/2013                       ORDER DATED: 11/02/2022



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 3803 of 2013
                              With
 CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of
                              2022
        In R/SPECIAL CIVIL APPLICATION NO. 3803 of 2013
                              With
         R/SPECIAL CIVIL APPLICATION NO. 19357 of 2018
                              With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of
                              2022
       In R/SPECIAL CIVIL APPLICATION NO. 19357 of 2018
                              With
         R/SPECIAL CIVIL APPLICATION NO. 15612 of 2020
                              With
         R/SPECIAL CIVIL APPLICATION NO. 2148 of 2022
                              With
         R/SPECIAL CIVIL APPLICATION NO. 15131 of 2014
                              With
          R/SPECIAL CIVIL APPLICATION NO. 774 of 2019
                              With
          R/SPECIAL CIVIL APPLICATION NO. 769 of 2019
                              With
          R/SPECIAL CIVIL APPLICATION NO. 772 of 2019
                              With
          R/SPECIAL CIVIL APPLICATION NO. 770 of 2019
                              With
         R/SPECIAL CIVIL APPLICATION NO. 11524 of 2015
                              With
         R/SPECIAL CIVIL APPLICATION NO. 11943 of 2015
                              With
         R/SPECIAL CIVIL APPLICATION NO. 18565 of 2019
                              With
         R/SPECIAL CIVIL APPLICATION NO. 18568 of 2019
                              With
         R/SPECIAL CIVIL APPLICATION NO. 18562 of 2019
                              With
         R/SPECIAL CIVIL APPLICATION NO. 18563 of 2019
                              With
         R/SPECIAL CIVIL APPLICATION NO. 18564 of 2019




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      C/SCA/3803/2013                          ORDER DATED: 11/02/2022



=====================================================

            DHANUBEN LALLUBHAI PATEL & 96 other(s)
                               Versus
   OIL AND NATURAL GAS CORPORATION OF INDIA & 4 other(s)
=====================================================
Appearance:
MR AJ YAGNIK(1372) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,3
0,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,5
1,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,71,7
2,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,91,92,9
3,94,95,96,97
MR. DHARMESH DEVNANI, AGP for the Respondent(s) No. 4,5
KSHITIJ M AMIN(7572) for the Respondent(s) No. 3
MR AKSHAT KHARE(5912) for the Respondent(s) No. 1,2
RULE SERVED for the Respondent(s) No. 1,2
=====================================================
  CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
          ARAVIND KUMAR
          and
          HONOURABLE MR. JUSTICE NIRAL R. MEHTA
                         Date : 11/02/2022
                      COMMON ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1) All these writ petitions, which are filed prior to 2019,

having been admitted by issuing Rule and connected matters

being Special Civil Application No. 15612 of 2020 and Special

Civil Application No. 2148 of 2022 lay challenge to very

competence of authority, who has issued notice under Section

8 of the Petroleum & Minerals Pipelines (Acquisition of Right

C/SCA/3803/2013 ORDER DATED: 11/02/2022

of User Inland) Act, 1962, ( for short " the Act") contending

inter alia that said affidavit is not empowered to issue such

notice or in other words he being incompetent or said notice

having been issued by an officer, who is not competent to

issue such notice, in view of the law laid down by Apex Court

in the matter of Laljibhai Kadvabhai Savaliya & ors. v. State of

Gujarat and Ors., 2016(9) SCC 791, they have sought for

quashing said notice.

2) Essentially in Special Civil Application No. 2148 of 2022

and Special Civil Application No. 15612 of 2020 validity of

impugned notice issued under Section 8 of PMP Act is

challenged, whereas, in other petitions, notice issued for

determination of compensation is challenged, contending inter

alia, that provisions of Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 (for short, hereinafter referred to as

"LARR Act, 2013, for brevity) has to be applied while

determining compensation for Land Acquisition under PMP Act.

      C/SCA/3803/2013                                ORDER DATED: 11/02/2022



3)    The extraction of prayers made in different petitions

would not only be voluminous and would not be warranted

inasmuch as it would suffice to state aforesaid substance of

prayers for disposal of these petitions and as such we have not

narrated the prayers in detail sought for in each of Special

Civil Applications. But we do consider apt and appropriate

common prayer sought for in these petitions, requires to be

narrated and they are:-

"1. To quash and set aside notification issued under Section 3(1) and or Section 6(1) of the PMP Act, 1962 on the ground of same being illegal and unconstitutional;

2. To quash and set aside the notice issued by the respondent Competent Authority under Section 8 of the PMP Act holding the same to be illegal and unconstitutional;

3. To hold and declare that right of user acquired by respondent Central Government for one Corporation cannot be used for another Corporation;

4. To direct respondents to find out alternative route for the proposed pipeline;

5. To direct respondents and the respondent Collector as well as the respondent Competent Authority in particular to pay compensation to the farmers for damage, loss or injury on account of laying down of pipeline as per Schedule I, II or III of the Right to Fair Compensation and Transparency in Land Acquisition,

C/SCA/3803/2013 ORDER DATED: 11/02/2022

Rehabilitation and Resettlement Act, 2013 based on notification issued by respondent Union of India Ministry of Rural Development dated 28.08.2015 after revising the market price as per Section 26 of the Act of 2013 read with Section 32A of the Bombay Stamp Act, 1958;

6. To hold and declare that "Sammati Patrak" sought to be secured by the contractor of the Corporation laying down pipeline for the payment of compensation and other issues is contrary to the public policy and is inconsistent with the powers, authority and jurisdiction vested under the PMP Act, 1962'

7. To direct respondents and the respondent Corporation laying down pipeline to show its power and authority to install new pipeline to show its power and authority to install new pipeline or replacement of an existing pipeline and the permission to use the same right of user acquired by Central Government under the PMP Act;

8. To hold and declare that the compensation paid under the provisions of PMP Act is inadequate and be further pleased to direct respondent competent authority to pay compensation as per Schedule I, II and II of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;

9. To hold and declare that respondent Corporation cannot lay fiber optics in the Right of User so acquired by the respondent Central Government under the PMP Act, 1962 to lay down pipeline;

C/SCA/3803/2013 ORDER DATED: 11/02/2022

10. To direct respondents and respondent Competent Authority in particular to acquire additional Right of User for usage of additional land in addition to existing Right of User in the event of utilization of additional land of the petitioner farmers under the PMP Act, 1962."

4) We have heard Mr. A.J.Yagnik, learned counsel appearing

for the petitioners in all these petitions and Shri Devang Vyas,

learned Additional Solicitor General of India assisted by Mr.

Parth H. Bhatt, Ms. Aishwarya Reddy, learned counsel

appearing for Gas Authority and Smt. Suman Khare, learned

counsel appearing for ONGC. Perused the records.

5) The contention of Mr. Anand Yajnik are as under:-

(i) The authority, who has been defined as competent

authority under PMP Act, ought to be a person, who is a

judicial officer and any other officer, who attempts to

adjudicate the claims of land owners would be incompetent to

adjudicate the said claims since said person is not legally

trained person and not being conversant with legal intricacies

involved;

         C/SCA/3803/2013                                ORDER DATED: 11/02/2022



(ii)     It is only a Judicial Officer as held by Apex Court in

Lalajibhai's case (supra) who is competent authority and who

can adjudicate claims of land loosers and none-else;

(iii) By drawing the attention of this Court to the notices

issued by so-called competent authorities he would submit that

they are neither judicial officers nor legally trained officers so

as to fall within the four corners of the dicta laid by the Apex

Court in Laljibhai's case.

6) The determination of compensation and its quantification

will have to be in terms of LARR Act, 2013, in view of the

notification issued by Ministry of Rural Development dated

28.08.2018 (produced at Annexure-K) in Special Civil

Application No. 15612 of 2020 and competent authority cannot

determine claim ignoring this mandatory provision. Hence, he

prays for impugned notices being quashed and seeks for a writ

of mandamus being issued to the respondent authorities to

nominate or to appoint a Judicial Officer, who can be

competent authority for determining notices, if necessary, by

issuing fresh notice.

      C/SCA/3803/2013                       ORDER DATED: 11/02/2022



7)    Mr. Devang Vyas, learned Additional Solicitor General of

India would support the impugned notices and reiterating

contentions raised in the reply affidavit filed on behalf of

respondent No.4 he would contend that guidelines have been

issued pursuant to directions issued by the Apex Court in

Laljibhai's case, whereunder it was held that competent

authority must be someone, who is holding or has held the

part of a Judicial Officer, not lower in the rank that of a

Subordinate Judge or is a "trained legal mind" and said

guidelines came to be issued on 15.05.2018, which is not

under challenge and as such the correctness or otherwise of

said guidelines cannot be gone into these proceedings. He

further elaborates his submissions by contending that before

such guidelines came to be issued, deliberation were held with

all these stakeholders, and after considering the view of all

stakeholders, guidelines came to be issued. He would draw

attention of this Court to the said guidelines, which is placed

on record along with reply affidavit to contend that it has

been directed thereunder that competent authority to be

appointed by States should not below the rank of a Deputy

C/SCA/3803/2013 ORDER DATED: 11/02/2022

Collector and State Authority often entrusted with quasi

judicial functions, and therefore, said authority would meet the

criteria of a trained legal mind for purpose of adjudicating

claims under PMP Act and it is in compliance of directions

issued by the Apex Court. He would submit that issue raised

by Mr. Anand Yagnik relating to directions being issued to

competent authority to adjudicate claim by applying principles

of LARR Act, 2013 is premature and this contention can be

allowed to be raised by the claimants before the competent

authority and only in the event of such contention having not

been accepted thereafter petitioners can have recourse to other

remedies available under the Act, and they can as well urge

this issue at all appropriate levels. He would also submit that

competent authority, who has issued notice, is well within the

competence as prescribed under the guidelines issued by Union

Government and there is no infirmity in this regard calling for

interference at the hands of this Court.

8)     Smt. Suman Khare, learned counsel appearing for ONGC

has    reiterated       contention    raised        in   reply      affidavit        dated






      C/SCA/3803/2013                                 ORDER DATED: 11/02/2022



05.02.2022,        which   is   almost      in   pari-materia       with        the

contention raised by the Union of India. She would also

reiterate the arguments advanced by Mr. Devang Vyas, learned

Additional Solicitor General of India.

9) Ms. Aishwarya Reddy, learned counsel appearing on

behalf of M/s Trivedi & Gupta, would support the arguments

canvassed by learned advocate appearing for ONGC as well as

learned advocate appearing for Union of India and prays for

rejection of these petitions.

DISCUSSION AND FINDINGS:-

The PMP Act was enacted by the Parliament to provide for

acquisition of right of user inland for laying pipelines for

transport of petroleum and minerals and matters connected

therewith.

Section 2 A of the Act defines the expression "competent

authority" to mean any person or authority, authorized by

Central Government, to perform the functions of the competent

authority under PMP Act.

C/SCA/3803/2013 ORDER DATED: 11/02/2022

Section 3 of the Act deals with publications and notifications

for acquisition. Whereas, Section 4 of the Act deals with power

of the authority to enter, survey etc. over the land, which

proposes to lay pipelines.

Section 5 of the Act deals with hearings of all objections and

Section 6 of the Act deals with declaration of acquisition of

right of user.

Section 7 of the Act empowers the Central Government or the

State Government or Corporation to lay pipelines.

Section 8 of the Act indicates the power of authority to enter

into land for inspection, maintaining, repairing, examining and

altering any pipeline or for doing any other act necessary for

utilization of pipelines etc. It also mandates that reasonable

notice to the occupier of the land is required to be issued

except if such person is satisfied that emergency exists for

dispensing with the notice. It also places a restriction to such

person to cause as little damage or injury as possible to such

land.

Section 10 deals with payment of compensation namely

C/SCA/3803/2013 ORDER DATED: 11/02/2022

obligation of the authority to pay compensation towards

damage, loss or injury caused to the land due to the laying

pipelines. Sub Section (2) of Section 10 of Act enables either of

the parties to approach the District Judge against the

compensation determined by competent authority.

Section 10(3) obliges the competent authority, inter alia, to

have due regard to aspects enumerated in Clause (i), (ii) and

(iii) of Section 10(3) while determining the compensation. In

addition, competent authority would also determine the market

value of the land, 10% of which is required to pay by way of

compensation for acquisition of right of user under Section

10(4) of the Act.

As per Sub Section (6) of Section 10 of PMP Act, decision of

the District Judge rendered under Sub Section (2) of Section 10

or Sub Section (5) of Section 10 would be final.

Section 12 of the PMP Act confers competent authority the

powers of a Civil Court.

10) The issue relating to competent authority and its

appointment, as well as, person to be appointed as competent

C/SCA/3803/2013 ORDER DATED: 11/02/2022

authority, was the subject matter of consideration before Apex

Court in the matter of Laljibhai's case and Apex Court has

held the object of PMP Act is to acquire user of right to lay

pipelines beneath the land would be of national and public

interest because outright acquisition of land under Land

Acquisition Act would be very costly and would also deprive

either the farmers or the owners of their valuable lands. In

other words, it is held that this enactment would be an

efficient and cheap means of utilization of land for

transportation of petroleum products, which would be in the

national interest. It is also further held that PMP Act is in

addition to and is not in derogation of other enactments. Even

though land is acquired under Section 31 of PMP Act, land

owners would be permitted to carry on agricultural operations

even after the pipelines are being laid except restricting land

owners from raising construction thereon or in other words

there would be limited restrictions prescribed under Section 9.

In other words right of enjoyment and right of possession

remains unaltered.

11)    In this background, it came to be held by Apex Court in




     C/SCA/3803/2013                                   ORDER DATED: 11/02/2022

Laljibhai's case that orders and reports of authority would

certainly deal with variety of civil rights of interested person

and issues pertaining to compensation. It has been further

held:

"28. As per Section 2(a) of the PMP Act, "Competent Authority" means any person or authority authorized by the Central Government to perform functions of the Competent Authority under that PMP Act. According to Section 5, all objections preferred by interested persons to the laying of the pipeline are to be dealt with and heard by the Competent Authority, who may allow or disallow such objections. Under Section 5(3) the order so passed by the Competent Authority is to be final. As per Section 6, the Competent Authority thereafter has to make a report to the Central Government containing his recommendations on the objections together with the record of the proceedings held by him. After the order is passed by the Central Government under Section 6(1), the role of the Competent Authority is to assess compensation for damage, loss or injury occasioned to any person as a result of exercise of the powers conferred under Sections 4, 7 and 8. Section 10(3) obliges the Competent Authority inter alia to have due regard to facets enumerated in sub clauses (i), (ii) and (iii) of Section 10 (3). In addition, the Competent Authority is also to determine the market value of the land, 10% of which is required to be paid by way of compensation for acquisition of right of user under Section 10 (4). Section 12 confers powers of Civil Court on the Competent Authority.

29. It is thus clear that "Competent Authority" is given wide ranging powers under Section 5 for considering the objections, under Section 6 for making the report to the Central Government and under Section 10 for determining compensation for damage/loss or injury under first part of Section and to determine the market value under the second part of the Section. By virtue of these powers, crucial rights of the persons interested in the land are bound to be affected. His orders and report would certainly deal with variety of civil rights of the interested persons and issues pertaining to compensation."

       C/SCA/3803/2013                             ORDER DATED: 11/02/2022



12)    After having considered Section 21(E) of the Metro

Railways (Construction of Work) Act, 1978, which is in pari-

materia with PMP Act, 2013, it came to be held that a person,

who occupies the position of competent authority under the

PMP Act must evoke and enjoy public confidence. After having

noticed that neither Act nor Rules framed thereunder deal with

the qualifications required of a person before his appointment

as competent authority, it was held:

" Like the PMP Act, the Metro Act also confers power upon the Competent Authority therein to consider objections to the construction of the Metro Railway or any other work and to determine the amount payable for acquisition. The orders passed by the Competent Authority under the Metro Act are also appealable before an Appellate Authority. In our view, the Competent Authority under the provisions of PMP Act must also be someone who is holding or has held a Judicial Office not lower in rank than that of a Subordinate Judge or is a trained legal mind. If such requirement is not read into and not taken as an integral and essential qualification before appointment of any person as Competent Authority, the provisions in that behalf will not be consistent with the doctrine of fairness under Article 14 of the Constitution of India. At the same time, we hasten to add that actions taken by the Competent Authority till now, will not in any way stand impaired or be invalidated purely on this count. But the Central Government may do well to step in immediately and remedy the situation with appropriate measures"

13) It is the aforesaid observation, which has been made by

Apex Court, which has been pressed into service by Mr. Anand

Yagnik to contend that any person other than a judicial officer

C/SCA/3803/2013 ORDER DATED: 11/02/2022

being appointed as a competent officer under PMP Act would

be contrary to dicta laid down by the Apex Court.

14) A plain reading of above observation made by the Apex

Court would indicate that a suggestion was made to Union of

India to remedy the situation obviously by incorporating such

provision as deemed fit for ensuring that a person who is

holding or held a part of Judicial Officer not below a rank of

a Subordinate Judge or is a trained legal mind would perform

duty of competent authority.

15) In the case of Barkatbhai V. Narsindani & Ors. v. Patel

Filters Limited, 2005 (3) GLH Pg. 166 rendered by this Court it

has been held that the expression "legally trained mind" do

not mean possessing a degree simplicitor and legally trained

mind would be somebody who has some legal experience and

has experience relating to domestic inquiries on the legal side.

16) It is not in dispute or the undisputed facts as obtained in

the present case would disclose that pursuant to the judgment

of the Apex Court in Laljibhai's case Government of India in

consultation with all stakeholders has resolved to formulate a

C/SCA/3803/2013 ORDER DATED: 11/02/2022

policy in the form of guidelines which crystallized as such on

15.05.2018. The copy of the same has been placed not only by

the Union of India but also by O.N.G.C. along with their reply

affidavit on record. It would be appropriate to notice at this

juncture itself that in those Special Civil Applications of 2013,

2014 and 2015 namely Special Civil Application No. 3803 of

2013, Special Civil Application No. 1513 of 2014, Special Civil

Application No. 1152 of 2015 and Special Civil Application No.

11943 of 2015, the proceedings have been commenced prior to

dicta in Laljibhai's case and observations made in Laljibhai's

case at Paragraph 31 to the effect that "actions taken by the

Competent Authority till now" would suffice to reject the

contentions of Mr. Anand Yagnik since all such acts of

authorities till judgment of Apex Court came to be rendered on

05.10.2016. In other words, it has been held that the actions

being taken by the competent authority till said date, could

not in any way be invalidated. To put it differently, all such

acts till the date of judgment rendered on 05.10.2016 would

stand undisturbed. Thus, acts of the respondents cannot be

nullified till said date.

       C/SCA/3803/2013                              ORDER DATED: 11/02/2022



17)    A perusal of the guidelines dated 15.05.2017, which has

been placed by Union of India as well as by ONGC on record

would indicate that said guidelines are required to be followed

by all the States and Union Territories.

18) The relevant and appropriate guidelines insofar as the

present facts are concerned would require to be extracted and

they read as under: -

i. Officers having experience of revenue court and land related matters will generally be proposed to be appointed as Competent Authority under the PMP Act.

ii. These officers should preferably be of/or above the level of Deputy Collector or equivalent, to the State Government.

iii. Officers having Law degree may be given preference in proposals for appointment as Competent Authority.

iv. In case where no such officer is available, other officers may be is available, other officers may be nominated.

19) It is pursuant to aforesaid guidelines issued by Union of

India, the Deputy Collectors came to be appointed in all these

matters as Competent Authority as prescribed under Section 2A

of PMP Act, 2013. The Deputy Collector exercises certain

quasi-judicial powers under various statutes both the State and

C/SCA/3803/2013 ORDER DATED: 11/02/2022

the Central to deal with both facts and law, which may either

be simple or complicated. It cannot be gainsaid by the

petitioners that said Deputy Collector cannot be held or termed

as a person, who is not of trained legal mind. In fact, Deputy

Collector exercises the powers of Executive Magistrate and also

exercises certain quasi-judicial powers and as such it would

prove beyond doubt that Deputy Collector would be a person

who is a trained legal mind and would fall within the

expression of "trained legal mind" and as such, would be

qualified to be appointed as a competent authority.

20) The Honourable Apex Court in the case of Hindustan

Petroleum Corporation Ltd. vs. Yashvant Gajanand Joshi &

Ors., AIR 1991 SC 933 has held that the Central Government

has power to appoint even an employee of a public

corporation as a competent authority under Section 2(A) of the

PMP Act.

21) In view of the aforestated discussion, we are of the

considered view that contentions raised by Mr. Anand Yagnik,

learned counsel appearing for the petitioner, though at first

C/SCA/3803/2013 ORDER DATED: 11/02/2022

blush look attractive, it cannot be accepted and it stands

rejected.

22) Now turning our attention to second contention raised

with regard to competent authorities requiring to adjudicate

the claim by applying provisions of LARR Act, 2013 would not

detain us for too long, inasmuch as Section 105 of LARR Act,

2013 and more particularly Sub Section (3) of Section 105

make it explicitly clear that enactments specified in IV

schedule of the Act would apply to such exceptions or

modifications as may be specified in the notification that

would be issued by the Central Government. The IV schedule

to LARR Act, 2013 has enlisted 13 enactments and PMP Act,

2013 is at serial no. 8 under the IV schedule. Thus, for

applying provisions of LARR Act, 2013, Central Government

will have to issue a notification directing that any of the

provisions of LARR Act, 2013 relating to determination of

compensation is in accordance with I schedule, II schedule and

III scheduled being beneficial to affected families would apply

to the cases of land acquisition under the enactments specified

C/SCA/3803/2013 ORDER DATED: 11/02/2022

in IV schedule also. It is by virtue of such power vested, the

order has been passed on 28.08.2015 in exercise of the power

under sub Section 1 of Section 113 of LARR Act, 2013 bringing

within the sweep of determination of compensation under PMP

Act by applying the provisions of LARR Act, 2013 also.

23) As such, it would be needless to state that competent

authority would take into consideration this aspect, namely,

notification dated 28.08.2015 issued by Ministry of Rural

Development while determining compensation and we make it

explicitly clear that we have not expressed any opinion on

merits of the claim, which is left open to be urged by the

respective petitioners before the competent authority. All other

contentions specifically which are not dealt with, are held to

be rejected by this Court as it is required to be urged by the

petitioners before competent authority who would adjudicat the

same in accordance with law and we also make it clear that

we have not expressed any opinion on merits of the case. No

order as to costs.

       C/SCA/3803/2013                         ORDER DATED: 11/02/2022



24)     All pending Civil Applications stand consigned to records.

The competent authority shall proceed to adjudicate the

pending claims, as expeditiously as possible and at any rate

within a outer limit of 4 months from the date of receipt of

copy of this order.

                                              (ARAVIND KUMAR,CJ)




                                               (NIRAL R. MEHTA,J)
VISHAL MISHRA







 C/SCA/3803/2013                   ORDER DATED: 11/02/2022