1. The present Writ Petition is filed challenging the validity of the Order dated 28.02.2022 of the 2nd respondent under the provisions of the Petroleum and Minerals Pipelines (Acquisition of Right of user in Land) Act, 1962 (hereinafter referred to as ‗PMP Act‘) rejecting the objections raised by the petitioners with regard to laying of a pipeline for transportation of Natural Gas from Krishnapatnam Port to Hyderabad. The petitioners seek a direction to the respondents to forbear from acquiring the land / mango garden of the petitioners and also direct the 1st respondent to explore the alternative / more viable / economical alignment for providing the transportation of natural gas pipeline connecting Krishnapatnam Port to Hyderabad by considering the objections of the petitioners and other farmers.
2. The relevant facts, which are culled out from the material available on record, may briefly be stated thus:
3. The Bharat Petroleum Corporation Limited (BPCL) - 5th respondent herein, a Government of India undertaking engaged in the marketing and distribution of petroleum products in order to ensure smooth supplies of such products to various customers, industries as well as Government Agencies, had proposed to lay a 441 km., long cross country multi product pipeline from the Krishnapatnam Coastal Terminal in Andhra Pradesh to the proposed Terminal near Hyderabad in Telangana State. The BPCL conducted Engineering Survey for the said Krishnapatnam – Hyderabad Pipeline project and submitted Land Plan Schedules for an extent of 441002.1 meters spread over in several Mandals and Districts of both Andhra Pradesh and Telangana States, the same was notified under Section 3 (1) as per the provisions of the Act, in a phased manner by the Competent Authority & Special Deputy Collector / 2nd respondent. The Petroleum and Natural Gas Regulatory Board (PNGRB) vide Proceedings bearing PNGRB / Auth/3-PPPL (10) 2019 dated 17.02.2020 granted Letter of Intent to the 5th respondent for execution of the said project.
4. The 2nd respondent issued a Form-II Notice dated 18.10.2021 to the petitioners under the provisions of PMP Act intimating them that since it is decided to lay a pipeline across the land mentioned in the said Notice for providing connectivity of Natural Gas Transportation of BPCL from Krishnapatnam Port to Hyderabad, 21 days time is granted for submitting objections. In response thereto, the petitioners submitted their objections dated 22.11.2021 and to the subsequent notice dated 24.12.2021, a reply dated 10.01.2022. Thereafter, the Proceedings dated 28.02.2022 impugned in the present writ petition have been passed.
5. Heard Mr.P.Veera Reddy, learned Senior Counsel appearing on behalf of the petitioners. Also heard Mr.S.Sri Ram, learned Advocate General appearing on behalf of the 5th respondent and Mr.S.V.S.S.Siva Ram on behalf of the respondent No.2.
6. The learned Senior Counsel made submissions, inter alia, that the 1st petitioner is the absolute owner and possessor of the subject matter land, which is a Mango Garden, there are about 400 Mango Trees of the age of 20 years and there are about 100 Mango Trees in the land of the 2nd petitioner. He submits that the petitioners had created irrigation infrastructure in respect of the subject matter land for laying water pipelines and other cultivation facilities. He submits that pursuant to the Notice dated 18.10.2021, the petitioners submitted detailed objections dated 22.11.2021 and a Representation dated 10.01.2022 seeking certain information, but the 2nd respondent without furnishing the information sought for, proceeded in the matter on the date fixed for hearing on 18.01.2022 and issued the impugned proceedings dated 28.02.2022 recording that the petitioners have nothing to say with regard to the Notification issued by the respondents. He submits that the 2nd respondent instead of addressing a communication either providing or rejecting the request for information made by the petitioners, straightway proceeded in the matter and issued the impugned order / proceedings and the same is violative of principles of natural justice.
7. The learned Senior Counsel submits that even in the absence of the land owners i.e., the petitioners, their objections have to be considered objectively and only thereafter, the 2nd respondent can submit an appropriate report to the Central Government on the objections of the petitioners, as per the provisions of the Act. He contends that in the present case, the 2nd respondent himself had overruled the petitioners‘ objections and came to a conclusion to the effect that the petitioners have nothing to submit in the matter. He contends that no reasons were assigned as to why the objections submitted by the petitioners merits no acceptance, except that the design / alignment of the pipeline project was approved by Government of India, therefore it is not technically feasible to change the alignment. He further submits that had the petitioners were informed that their request for furnishing the information sought for vide Representation dated 10.01.2022 is not acceded to, they would have attended the hearing. He submits that the opportunity of hearing as contemplated under the provisions of the Act means an effective hearing, but not an empty formality.
8. Referring to the provisions of the Act i.e., Sections 5 and 6, he further submits that a perusal of the impugned proceedings would go to show that a decision is taken on his own by the 2nd respondent instead of sending the report to the Central Government. He submits that the 2nd respondent is only a Recommendatory Authority and cannot take a decision. He also submits that in the objections, the petitioners referring to the Machilipatnam Port specifically mentioned that laying of pipeline from the said Port instead of Krishnapatnam Port, saves huge expenditure to the Government, but the same was not taken into consideration. He submits that the Central Government would have examined the said aspect apart from other factors and taken a decision, had the 2nd respondent / the Competent Authority for Land Acquisition (CALA) submitted a report with his views. The learned Senior Counsel submits that the action of the 2nd respondent in passing an order instead of sending a report to the Central Government is not tenable or in terms of the provisions of the Act. He also submits that the 2nd respondent instead of examining the matter with an open mind acted with pre- determination and the impugned order is therefore vitiated. He submits that the impugned order does not disclose cogent reasons and in fact, irrelevant reasons were assigned for not considering the objections raised by the petitioners. Making the said submissions as also that the provisions of the Act are in pari materia to the provisions of Land Acquisition Act and placing reliance on the decisions in Hindustan Petroleum Corporation Ltd., v. Darius Shapur Chenai & Others (2005) 7 SCC 627 and Nareshbhai Bhagubhai v. Union of India (2019) 15 SCC 1, the learned Senior Counsel seeks to allow the Writ Petition.
9. Mr.S.V.S.S.Sivaram, learned counsel appearing on behalf of the 2nd respondent made submissions with reference to the relevant factual aspects about the extent to be acquired under right of use in so far as the lands of the petitioners are concerned, the details of which are as follows:
|
Name of the petitioner |
Sy.No. & Sub-division |
Extent to be acquired under Right of use |
Present Status on ground |
|
B.Sreedhar |
1287/3 |
1518 sq.meters |
Mango garden (20 trees affected) |
|
B.Malathi |
1218/3 |
182 sq.meters |
Mango garden (3 mango trees affected) |
|
B.Malathi |
1287/3H2 |
1477 sq.meters |
Mango garden (20 trees affected) |
10. While refuting the contentions advanced on behalf of the petitioners, he submits that though an opportunity of personal hearing was afforded to the petitioners, they did not avail the same and therefore, they are not justified in raising any issue that their objections were brushed aside. He submits that the petitioners are entitled for compensation as per the provisions of the Act in respect of the Trees as stated in the above table and the extents of land to be acquired under right of use and the petitioners can use balance extent of their lands. He submits that though the petitioners have not filed their objections within the time stipulated, the 2nd respondent considered the same and passed orders thereafter. He submits that as per Section 5 (2) of the Act, the power is vested with the 2nd respondent to pass orders and the impugned proceedings / order is valid. He further submits that the contentions contra are not tenable, that the project is intended to serve the interest of the public at large and no reliefs as prayed for may be granted. He also refers to the decision of this Court in Appasani Baburao v. Union of India (2021) 2 ALT 398 (W.A.No.371 of 2020 dated 25.02.2021) confirming the orders in W.P.No.682 of 2019.
11. The learned Advocate General made elaborate submissions with reference to the provisions of the Act and drawn the attention of this Court to the objections dated 22.11.2021 submitted by the petitioners to the 2nd respondent. He submits that no serious objections worth mentioning whatsoever were raised by the petitioners and the thrust basically is on the alignment, cost component of the project etc. He submits that the analogy sought to be drawn by the learned Senior Counsel for the petitioners with reference to the Land Acquisition Act on the basis of the judgments relied on by him is not tenable. The learned Advocate General further submits that upon recommendations of the 2nd respondent, the Central Government has issued Declaration under Section 6 of the Act in respect of the entire extent covering more than 30 villages in the State of Andhra Pradesh and Telangana, except the lands of the petitioners and that majority of the land owners and farmers have not raised any objections for completion of the project and the petitioners as also few other individuals, who filed similar cases are causing hurdles for completion of the project. He submits that in the interest of few persons, the alignment of the project cannot be changed which will cause huge loss to the public exchequer as the majority of the work is already in progress and the entire project will become unviable.
12. That apart, the learned Advocate General submits that the lands of the petitioners are ideally located for laying the present stretch of the pipeline and there is no scope for laying of the same towards other side of the petitioners‘ lands since they are bounded by railway line and sea- coast line on either side. He also submits that the project is of great National importance and the delay in execution of the works due to the interim orders granted by this Court is having a cascading effect and the interest of the public at large is jeopardized. Referring to the decisions in Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664, Laljibhai Kadvabhai Savaliya v. State of Gujarat (2016) 9 SCC 791, Nareshbhai Bhagubhai case and W.A.No.816 of 2022 dated 09.02.2023, the learned Advocate General seeks dismissal of the Writ Petition.
13. In a short reply to the arguments advanced on behalf of the respondents, the learned Senior Counsel for the petitioners submits that the Competent Authority / 2nd respondent is a statutory authority and expected to discharge his functions in terms of the provisions of the Act. He submits that mere issuance of Notice in terms of the Act would not suffice and the 2nd respondent after receiving the objections and hearing the parties / petitioners shall submit a report to the Central Government by duly conducting an enquiry. He submits that the 2nd respondent is not expected to send his personal opinion to the Central Government, but a report after considering the objections of the petitioners objectively, so that the Central Government would take a final decision in the matter. He submits that in the present case, there is failure on the part of the 2nd respondent in discharge of his statutory functions and in fact Sections 5 and 6 of the Act, have been violated. Accordingly, the learned Senior Counsel submits that the petitioners are entitled for the relief sought for.
14. This Court has considered the submissions made and perused the material on record.
15. On an appreciation of the rival contentions, the points that emerge for consideration by this Court are:
1) Whether the competent authority is required to pass a reasoned order by considering the objections objectively
2) Whether non-consideration of the objections objectively constitutes non-compliance with the provisions of the PMP Act
3) Whether the Proceedings dated 28.02.2022 of the 2nd respondent are sustainable
4) Whether the relief seeking directions to the 1st respondent to explore the alternative / more viable / economical alignment for providing the transportation of Natural Gas Pipe Line connecting Krishnapatnam Port to Hyderabad can be granted
5) To What relief
16. Before dealing with the respective contentions, it may be appropriate to refer to the relevant provisions of the Act which are extracted hereunder:
"Section 2 (a) of the PMP Act deals with "competent authority" - who is a person or authority authorised by the Central Government, by notification in the Official Gazette, to perform all or any of the functions of the competent authority under the provisions of the Act, in the same area or different areas specified in the notification.
Section 3 (1) of the PMP Act deals with "Publication of notification for acquisition" - whenever it appears to the Central Government that it is necessary in the public interest that for the transport of petroleum (or any mineral) from one locality to another locality pipelines may be laid by that Government or by any State Government or a corporation and that for the purpose of laying such pipelines it is necessary to acquire the right of user in any land under which such pipelines may be laid, it may, by notification in the Official Gazette, declare its intention to acquire the right of user therein.
Section 3 (2) of the PMP Act provides that every notification under sub-section (1) shall give a brief description of the land.
Section 3 (3) of the PMP Act contemplates that the competent authority shall cause the substance of the notification to be published at such places and in such manner as may be prescribed.
Section 4 deals with the "Power to enter, survey, etc.," - on issuance of a notification under sub-section (1) of section 3, it shall be lawful for any person authorised by the Central Government or by the State Government or the Corporation which proposes to lay pipelines [or any mineral], and his servants and workmen,
(a) to enter upon and survey and take levels of any land specified in the notification;
(b) to dig or bore into the sub-soil;
(c) to set out the intended line of work;
(d) to mark such levels, boundaries and line by placing marks and cutting trenches;
(e) where otherwise survey cannot be completed and levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle; and
(f) to do all other acts necessary to ascertain whether pipelines can be laid under the land:
As per proviso to Section 4 while exercising any power under the said section, such person or any servant or workmen of such person shall cause as little damage or injury as possible to such land."
17. The other important Sections – Section 5, Sections 6 and 7 to the extent relevant for the present context may be extracted for ready reference:
"Section 5 deals with "Hearing of Objections".— (1) Any person interested in the land may, within twenty-one days from the date of the notification under sub-section (1) of section 3, object to the laying of the pipelines under the land.
(2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard either in person or by a legal practitioner and may, after hearing all such objections and after making such further inquiry, if any, as that authority thinks necessary, by order either allow or disallow the objections.
(3) Any order made by the competent authority under sub- section (2) shall be final.
Section 6 deals with "Declaration of acquisition of right of user".—(1) Where no objections under sub-section (1) of section 5 have been made to the competent authority within the period specified therein or where the competent authority has disallowed the objections under sub-section (2) of that section, that authority shall, as soon as may be [either make a report in respect of the land described in the notification under sub-section (1) of section 3, or make different reports in respect of different parcels of such land, to the Central Government containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government] and upon receipt of such report the Central Government shall [if satisfied that such land is required for laying any pipeline for the transport of petroleum or any mineral,] declare, by notification in the Official Gazette, that the right of user in the land for laying the pipelines should be acquired. [and different declarations may be made from time to time in respect of different parcels of the land described in the notification issued under sub- section (1) of section 3, irrespective of whether one report or different reports have been made by the competent authority under this section].
(2) On the publication of the declaration under sub-section (1), the right of user [in the land specified therein] shall vest absolutely in the Central Government free from all encumbrances.
(3) ******************
(4) ******************
Section 7 Central Government or State Government or Corporation to lay pipelines - (1) where the right of user in any land has vested in the Central Government or in any State Government or corporation under section 6—
(i) it shall be lawful for any person authorised by the Central Government or such State Government or corporation as the case may be, and his servants and workmen to enter upon the land and lay pipelines or to do any other act necessary for the laying of pipelines:
Provided that no pipeline shall be laid under—
(a) any land which, immediately before the date of the notification under sub-section (1) of section 3, was used for residential purposes;
(b)*************** (c)*************** (d)**************
Section 8 of the PMP Act provides for "Power to enter land for inspection, etc.," - after giving a reasonable notice to the occupier of the land under which the pipelines has been laid, enter therein with such workmen and assistants as may be necessary."
18. Section 9 stipulates the restrictions regarding the use of land.
19. Section 10 deals with the ‗compensation‘, which is extracted hereunder for ready reference:
"Section 10 - "compensation" – (1) Where in the exercise of the powers conferred by section 4, section 7 or section 8 by any person, any damage, or injury is sustained by any person interested in the land under which the pipeline is proposed to be, or is being, or has been laid, the Central Government, the State Government or the corporation , as the case may be , shall be liable to pay compensation to such person for such damage, loss or injury , the amount of which shall be determined by the competent authority in the first instance.
Section 10 (2) provides that if the amount of compensation determined by the competent authority under sub-section (1) is not acceptable to either of the parties, the amount of compensation shall, on application by either of the parties to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, be determined by that District Judge.
Section 10 (3) provides that the competent authority or the District Judge while determining the compensation under sub-section
(1) or sub-section (2), as the case may be, shall have due regard to the damage or loss sustained by any person interested in the land by reason of—
(i) the removal of trees of standing crops, if any, on the land while exercising the power under section 4, section 7 or section 8;
(ii) the temporary severance of the land under which the pipeline has been laid from other lands belonging to, or in the occupation of, such person; or
(iii) any injury to any other property, whether movable or immovable , or the earnings of such persons caused in any other manner:
Provided that in determining the compensation no account shall be taken of any structure or other improvement made in the land after the date of the notification under sub-section (1) of section 3.
Section 10 (4) provides that - Where the right of user of any land has vested in the Central Government, the State Government or the corporation, the Central Government, the State Government or the corporation, as the case may be, shall, in addition to the compensation, if any, payable under sub-section (1), be liable to pay to the owner and to any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such vesting, compensation calculated at ten per cent of the market value of that land on the date of the notification under sub-section (1) of section 3.
Section 10 (5) provides that the market value of the land on the said date shall be determined by the competent authority and if the value so determined by that authority is not acceptable to either of the parties, it shall, on application by either of the parties to the District Judge referred to in sub-section (2), be determined by that District Judge.
Section 10 (6) provides that the decision of the District Judge under sub-section (2) or sub-section (5) shall be final."
20. Section 11 of the PMP Act contemplates Deposit and payment of compensation.
21. Section 12 is another important section, as per which, the competent authority shall have, for the purposes of this Act, all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) reception of evidence on affidavits;
(d) requisitioning any public record from any court or office;
(e) issuing commission for examination of witnesses.
22. Section 14 of the PMP Act bars the jurisdiction of civil courts.
Point Nos.1 to 3
23. With reference to Point Nos.1 to 3, the functions/duties of the competent authority under Section 5 and 6 of the PMP Act may be summarized for better understanding of the same –
a) Competent authority shall give the objector who submitted objections under Section 5(1) of PMP Act, an opportunity of being heard either in person or by a legal practitioner.
b) After hearing all such objections and after making further enquiry, if any, if thinks necessary, by order (emphasis supplied) either allow or disallow the objections.
c) Shall make a report in respect of the land described in the Notification under Section 3(1) of PMP Act to the Central Government containing his recommendations on the objections (emphasis supplied), together with the record of proceedings held by him, for the decision of the Central Government. (Emphasis supplied)
24. Thus, a conjoint reading of Sections 5 and 6 of PMP Act would categorically indicate that the Legislature attached much importance to the objections in respect of the acquisition of right of user in land. The reason is obvious – the owner of the land would be deprived of using his land, be it partially. The holistic intent of Legislature is that since the rights of the lawful owner are getting affected, his objections have to be heard. Therefore, the avowed object of affording an opportunity to file objections and hearing of the same by the Competent Authority in person or through a legal practitioner, undoubtedly, is to provide the land owner a leeway to persuade the Competent Authority to drop the proposal for acquisition of right of user in respect of his lands on cogent reasons.
25. Article 300-A of the Constitution of India contemplates that no person shall be deprived of his property, save by authority of Law. The Hon‘ble Supreme Court in Jilubhai Nanbhai Khachar v. State of Gujarat (1995) Supp.(1) SCC 596 held that;
“….the term “property” in legal sense means of an aggregate of rights which are guaranteed and protected by law and would extend to entirety or group of rights inhering in a person.”
In the said judgment, the Hon‘ble Supreme Court at Para No.42 observed as follows:
"42. Property in legal sense means an aggregate of rights which are guaranteed and protected by law. It extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of the thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property. The exclusive right of possessing, enjoying and disposing of a thing is property in legal parameters. Therefore, the word "property" connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status. Property, therefore, within the constitutional protection, denotes group of rights inhering citizen‘s relation to physical thing, as right to possess, use and dispose of it in accordance with law. In Ramanatha Aiyar‘s The Law Lexicon. Reprint Edn., 1987, at P.1031, it is stated that the property is the most comprehensive of all terms which can be used, in as much as it is indicative and descriptive of every possible interest which the party can have. The term "property" has a most extensive signification, and, according to its legal definition, consists in free use, enjoyment, and disposition by a person of all his acquisitions, without any control or diminution, save only by the laws of the land.
26. Keeping the above said judgment in view, the Hon‘ble Supreme Court in Laljibhai’s case referred to above, proceeded to decide the said case on the premise that "the right of user sought to be taken over under the provisions of the PMP Act amounts to acquisition of one of the facets of property rights which inhere in the owner/occupier."
27. The very fact that the legislature had incorporated provisions for filing of objections, hearing of the same and submitting the recommendations on the objections to the Central Government in respect of the lands, wherein right to user in the land is sought to be acquired would make it doubly clear that the property rights of the land owners have to be dealt with strictly in accordance with the provisions of PMP Act and other established principles of law. In this regard, it would be appropriate to refer to the expression of the Hon‘ble Supreme Court in Laljibhai’s case referred to supra, wherein at Para No.29, it was held as follows:
“29. It is thus clear that “competent authority” is given wide ranging powers under Section 5 for considering the objections, under Section 6 for making the report to the Central Government and under Section 10 for determining compensation for damage/loss or injury under the first part of the section and to determine the market value under the second part of the section. By virtue of these powers, crucial rights of the persons interested in the land are bound to be affected. His orders and report would certainly deal with variety of civil rights of the interested persons and issues pertaining to compensation.”
28. The functions and duties of the Competent Authority – 2nd respondent under Section 5 of the PMP Act are essentially quasi judicial in nature.
29. The Hon‘ble Supreme Court while interpreting the provisions of the PMP Act in Trilok Sudhirbai Pandya v. Union of India and Others (2011) 10 SCC 203, inter alia, held that;
"…….the competent authority has got vast powers, which affects the rights of persons interested in the land over which the pipeline is to be laid and on the reports of the competent authority, the Central Government and the State Government are to take decisions affecting the rights of persons interested in the land. Under the provisions of the Act, therefore, the competent authority does not merely determine the compensation at the first instance in accordance with the statutory rules as has been contended by the learned counsel for respondent 4, but has to perform various other quasi-judicial functions which are normally performed by public servants whose pay, allowances and other incidentals of service are met out of the public exchequer."
30. A Constitutional Bench of the Hon‘ble Supreme Court while discussing the object and basic principles of natural justice in S.N.Mukherjee v. Union of India (1990) 4 SCC 594, inter alia, held that:
"The authority exercising quasi judicial function must record reasons for its decisions irrespective of whether the decision is subject to appeal, revision or judicial review. It is not required that the reasons should be as elaborate as in the decision of a Court of Law. What is necessary is that the reasons are clear and explicit so as to indicat that the authority has given due consideration to the points in controversy."
31. In view of the above settled legal principles, the competent authority/2nd respondent has to pass a reasoned order by considering the objections raised by the respective land owners.
32. It may not be out of place to state here that the object of giving personal hearing to the objector is to enable him to ventilate his grievance/objections and upon hearing such objections and after making such further enquiry, if any, the Competent Authority has to submit a proper and effective report containing the recommendations on the objections. He is not the ultimate authority and his views/recommendations after consideration of the objections may give scope for a second thought and enable the Central Government to review its intention to acquire the right of user of lands, in an appropriate case. The provisions of the Act contemplates passing of an order either allowing or disallowing the objections, followed by submission of a report/s containing the recommendations on the objections to the Central Government. The order of the competent authority/2nd respondent passed under Section 5 (2) of the PMP Act, thus, forms the basis for examination of the recommendations of the Competent Authority. Therefore, receiving objections and hearing of the same is not a mere formality or an eye wash. Unless, there is an objective consideration by discussing the objections of the land owners and recording conclusions thereon, the Central Government would not have the opportunity or occasion to examine the order under Section 5(2) of the PMP Act in a correct perspective and take a final decision in its wisdom. Though the Competent Authority may not prevail over the Central Government/Oil company to change the alignment of pipeline, but his objective consideration of objections and recommendations thereon would give scope to the Central Government/Oil company to review their proposals with regard to alignment of pipeline.
33. Further, the underlying object in appointing the Competent Authority with the legal background appears to be that his legal acumen would enable him to deal with the objections and pass an order judiciously. The 2nd respondent/Competent Authority is not a receiving and forwarding agent. As per Section 5(3) of the PMP Act, the order passed by the Competent Authority shall be final. Therefore, the Competent Authority/2nd respondent is all the more under an obligation to consider the objections objectively and draw conclusions from them, so as to provide the basis for further action by the Central Government, which in the present case was not adhered to. Non-consideration of the objections is fatal and amounts to statutory violation. Yet another aspect is though a request was made by the petitioners through Letter dated 10.01.2022 to furnish certain information, without acceding or rejecting the same, the 2nd respondent proceeded in the matter and passed the impugned order in violation of principles of natural justice. There is no reference to the specific objections raised, much less consideration of the same. Merely because the petitioners did not attend the personal hearing, the same cannot be treated that they have nothing to say about the objections raised by them nor would it absolve the 2nd respondent of his obligation to consider the matter objectively and therefore the order under challenge is not in accordance with the provisions of the Act.
34. This Court, in fact, had an occasion in Appasanai Babu Rao and Others v Union of India (2020) 6 ALT 377 to examine the provisions of the PMP Act vis-à- vis the provisions of the Land Acquisition Act, wherein it was held that though the provisions of PMP Act deals with the limited extent of acquisition of land viz., right of user of land, Section 5 of the PMP Act stands on the same footing as that of Section 5-A of the Land Acquisition Act, in as much as the rights of land owner whose lands are sought to be acquired would be affected and there would be deprivation of his rights, even by virtue of limited acquisition of right of user and that Section 5 of the PMP Act is akin to Section 5-A of the Land Acquisition Act. The said decision was approved by a Division Bench in Appasani Babu Rao case (3 supra) [W.A.No.371 of 2020 dated 25.02.2021].
35. The Hon‘ble Supreme Court in Nareshbhai Babubhai & Ors. v. Union of India (2019) 15 SCC 1, while dealing with a case of acquisition of land under the provisions of Railways Act, interpreted Section 20 (D) of the Railways Act, which is similar to Section 5 (2) of the PMP Act and opined that Section 20-D is in pari-materia to Section 5-A of the Land Acquisition Act, even though the scope of objections may be more limited. While expressing the view that the judgments rendered by the Hon‘ble Supreme Court on the nature of right to object under the Land Acquisition Act, 1894 are equally applicable to the Railways Act, it was held that:
"Sub-Section 2 of Section 20-D mandates the competent authority to give the objectors an opportunity of hearing, either in person or through a legal practitioner. The competent authority after hearing all the objections, and after making further enquiry, if any, is mandated to pass an order either allowing or disallowing the objections."
36. At Para No.20, the Hon‘ble Supreme Court held as follows:
“20. The limited right given to a land owner/interested person to file objections, and be granted a personal hearing under Section 20-D cannot be reduced to an empty formality, or a mere eyewash by the competent authority. The competent authority was duty-bound to consider the objections raised by the appellants, and pass a reasoned order, which should reflect application of mind to the objections raised by the land owners. In the present case, there has been a complete dereliction of duty by the competent authority in passing a reasoned order on the objections raised by the appellants.”
37. The Hon‘ble Supreme Court further held that the acquisition proceedings are invalidated as there was failure to pass order in terms of Section 20-D(2) of the Act. Section 5(2) of the PMP Act is similar to Section 20-D of the Railways Act. The interpretation of Section 20-D of the said Act by the Hon‘ble Supreme Court and the ratio laid down in the Judgment referred to above, in the considered opinion of this Court squarely applies to the present case.
38. Therefore, the impugned proceedings dated 28.02.2022 are not sustainable in law. Point No.1 to 3 are answered accordingly.
Point Nos.4 and 5:
39. In view of the conclusions arrived at above, the order passed by the competent authority without considering the objections objectively is invalid.
40. In Surinder Singh Brar v Union of India (2013) 1 SCC 401 case the Hon‘ble Supreme Court while dealing with a case arising under Land Acquisition Act, at para 84 of the Judgment held as follows :-
"………The formation of opinion on the issue of need of land for a public purpose and suitability thereof is sine qua non for issue of a declaration under Section 6(1). Any violation of the substantive right of the landowners and/or other interested persons to file objections or denial of opportunity of personal hearing to the objector(s) vitiates the recommendations made by the Collector and the decision taken by the appropriate Government on such recommendations. The recommendations made by the Collector without duly considering the objections filed under Section 5A(1) and submissions made at the hearing given under Section 5A(2) or failure of the appropriate Government to take objective decision on such objections in the light of the recommendations made by the Collector will denude the decision of the appropriate Government of statutory finality. To put it differently, the satisfaction recorded by the appropriate Government that the particular land is needed for a public purpose and the declaration made under Section 6(1) will be devoid of legal sanctity if statutorily engrafted procedural safeguards are not adhered to by the concerned authorities or there is violation of the principles of natural justice "
41. Though the ratio laid down in the above said Judgment is applicable to the facts of the present case, the contentions of the learned counsel for the respondents requires consideration before granting appropriate reliefs. According to the learned Advocate General, majority of the work in respect of the Pipeline Project in question is in progress, except the stretch covered by the lands which is subject matter of the present litigation and few other extents and any change in the alignment at this stage would not only cause huge loss, but also render the project unviable. It is axiomatic that alignment of pipelines / National High Ways / laying of H.T. lines involve technical expertise and if the alignment is required to be changed in the light of any adverse findings by the Court, it would not only result in huge expenditure, but also delay the project of National importance as new pipeline has to be laid by acquiring the right of user of land by issuing fresh Notifications and the consequential Declarations, which is not in the interest of public at large. Therefore, this Court finds merit in the submissions made on behalf of the respondents. It is settled law that private interest should yield to the public interest. (See: Vasantkumar Radhakisan Vora v. Board of Trustees of the Port of Bombay (1991) 1 SCC 761).
42. In Chameli Singh & Ors. V. State of U.P. & Anr. (1996) 2 SCC 549, the Hon‘ble Supreme Court held as follows:
“18. In every acquisition by its very compulsory nature for public purpose, the owner may be deprived of the land, the means of his livelihood. The State exercises its power of eminent domain for public purpose and acquires the land. So long as the exercise of the power is for public purpose, the individual's right of an owner must yield place to the larger public purpose ”
43. In Laljibhai’s case (6 supra) the Hon‘ble Supreme Court, inter alia, held that the transportation of gas is an activity of highest National importance and requires creation of necessary infrastructure by the State on its own or through private enterprise and that element of public interest is present, even though pipeline work is undertaken by an entity in private sector.
44. It may not be out of place to refer to the decision of the Hon‘ble Supreme Court, rendered in the context of laying of National Highway in Ramniklal N. Bhutta v. State of Maharashtra 1997 (1) SCC 134, wherein the Hon‘ble Supreme Court was dealing with a Land Acquisition Notification issued for a public purpose i.e., "For Bombay Electric Supply and Transport Undertaking for Bus Station." The Hon‘ble Apex Court while emphasizing the need for economic development of the country, inter alia held that Courts have to weigh the public interest vis-à-vis, the private interest. The relevant portion of the judgment reads thus:
"Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with china economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognized on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernization. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenge the acquisition proceedings in courts. These challenges are generally in shape of writ petitions filed on High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power or grant in stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say."
45. Be that as it may.
46. In the present case, there is no objective consideration of the objections of the petitioners, but on that ground no direction to change the alignment or explore alternative route can be granted. In A.V.K.Viswanatha Raju v Union of India 2023 SCC OnLine AP 180 (W.A.No.816 of 2022) a Division bench of this Court held as follows:
“5. It is settled law that writ court should be slow in interfering with the decision taken by experts. Before proceeding to acquire land for construction of National Highways or widening thereof, a Detailed Project Report (DPR) is prepared by experts considering the extent of land required for acquisition. Therefore, an individual cannot be allowed to raise objection that the alignment prepared by experts should be changed only for the reason that his lands will be affected by acquisition. It is not the case that the proposed alignment would cover only Government lands and it is clear that the same would affect 33 small farmers. If the lands of the writ petitioner are excluded from acquisition, other group of persons would be adversely affected. Therefore, present is not a case where this court should exercise powers under Article 226 of the Constitution of India to compel the respondents to change the alignment. The learned single Judge has rightly dismissed the writ petition preferred by the writ petitioner and we find no reason to interfere with the same."
47. Therefore, to meet the ends of justice, this Court deems it appropriate to adopt an equitable approach in larger public interest, while safeguarding the interest of the petitioners.
48. In this regard, this Court is guided by the recent Judgment of the Hon‘ble Supreme Court in Nareshbhai Bhagubhai‘s case referred to supra, wherein the Hon‘ble Supreme Court dealt with a case arising under Railways Act and interpreted Section 20-D of the said Act, which is pari-materia to Section 5 of the PMP Act. It may be appropriate to extract the relevant Sections under the said Acts, for ready reference:
|
Section 20-D of the Railways Act |
Section 5 of the PMP Act. |
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20D. Hearing of objections, etc. (1) Any person interested in the land may, within a period of thirty days from the date of publication of the notification under sub- section (1) of section 20A, object to the acquisition of land for the purpose mentioned in that sub section. (2) Every objection under subsection (1), shall be made to the competent authority in writing, and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections. Explanation: For the purposes of this sub section, ―legal practitioner‖ has the same meaning as in clause (1) of subsection (1) of section 2 of the Advocates Act, 1961(25 of 1961). (3) Any order made by the competent authority under subsection (2) shall be final. |
5. Hearing of Objections.— (1) Any person interested in the land may, within twenty-one days from the date of the notification under sub-section
section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard either in person of by a legal practitioner and may, after hearing all such objections and after making such further inquiry, if any, as that authority thinks necessary, by order either allow or disallow the objections. (3) Any order made by the competent authority under sub-section (2) shall be final. |
49. In the said case, the lands of the petitioners were sought to be acquired for laying a Railway line. The competent authority without considering the objections objectively passed an order and thereafter consequential notification was issued.
50. The Hon‘ble Supreme Court at para-32 of the said Judgment held thus:
“The competent authority being a quasi judicial authority is obligated by law to act in conformity with mandatory statutory provisions. It is important to note that this is the only opportunity made available to a land owner, as on submission of the report to the Central Government, there is no further consideration that takes place. The Central Government acts upon the report of the competent authority and issues the declaration under Section 20-E of the said Act…….”
51. The Hon‘ble Supreme Court at para-33 of the said Judgment held that:
"In the absence of an order passed under Section 20-D (2), the subsequent steps taken in the acquisition would consequentially get invalidated."
52. The Hon‘ble Supreme Court though held that there is breach of mandatory provisions of the Act, keeping in view the aspect that the entire Railway line except 125 kilometres which is the subject matter of litigation before it is completed, opined that the larger public purpose of a Railway project could not be served if notification under Section 20-A of the Railways Act, is quashed. The Hon‘ble Supreme Court, therefore, moulded the relief and granted compensation to be assessed under Section 20-G of the said Act, as per the current market value of the land.
53. The said Judgment of the Hon‘ble Supreme Court and the ratio laid down therein, in the considered opinion of this Court, applies to the facts of the present case, more particularly, in view of the pari-materia provisions viz., Section 20-D and Section 5 referred to supra.
54. Considering the matter in the light of the factual and legal position referred to above and in view of the conclusions arrived at, while setting aside the orders of the 2nd respondent dated 28.02.2022 as not legal, valid and unsustainable, this Court deems it appropriate to issue the following directions:
(a) The petitioners are entitled to compensation to be determined under Section 10(4) of the PMP Act, however, on the basis of market value of the lands existing as on the date of filing of the writ petition.
(b) The compensation directed to be determined as indicated above, shall be paid to the petitioners within six (6) weeks from the date of receipt of a copy of this Order.
(c) Any grievance with regard to determination of compensation may be agitated before the competent District Court under Section 10 (2) of the PMP Act.
Points 4 and 5 are answered accordingly.
54. In the result, the Writ Petition is allowed in part, with the directions referred to supra. There shall be no order as to costs.
55. Consequently, Miscellaneous Petitions pending, if any, in the Writ Petition shall stand closed.
