IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14027 of 2011 For Approval and Signature:
HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= MAHENDRASINH DILAVARSINH RAJ & 1 - Petitioner(s) Versus UNION OF INDIA THRO SECRETARY MINISTRY OF & 5 -
Respondent(s) ========================================================= Appearance :
MR JA ADESHRA for Petitioners MR PS CHAMPANERI, ASSISTANT SOLICITOR GENERAL OF INDIA for Respondent No.1 MR RAKESH GUPTA FOR M/S TRIVEDI & GUPTA for Respondent(s) : 3 - 5. MS ARCHANA C RAWAL, ASSTT. GOVERNMENT PELADER for Respondent(s) : 6 =========================================================
CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI
Date: 20/01/2012 C.A.V. JUDGMENT
1. Rule. Mr.P.S.Champaneri, learned Assistant Solicitor General of India, waives service of notice of Rule for respondent No.1, Mr. Rakesh Gupta, learned advocate for M/s. Trivedi and Gupta, waives service of notice of Rule for respondents Nos.3 to 5 and Ms.Archana C.Rawal, learned Assistant Government Pleader, waives service of notice of Rule for respondent No.6 State of Gujarat. Though respondent No.2 – Competent Authority, who is the author of the impugned communication, has filed an affidavit, he has neither appeared as PartyinPerson nor through an advocate. As the issue involved in the petition is a purely legal one, it is not considered necessary to issue notice of Rule to respondent No.2.
2. The challenge in this petition preferred under Article 226 of the Constitution of India, is to the communication dated 26.08.2011, addressed by the Competent Authority (respondent No.2), to the learned advocates of the petitioners, rejecting the claim application filed by the petitioners and advising them to approach GAIL (India) Limited (respondent No.3), instead.
3. The facts, as stated in the petition, are that the petitioners are the owners of agricultural lands bearing Survey / Block Nos.122/1, 122/2, 80/1, 40/1, 40/2, 79, 129, 129/2, and 131 situated at Village Saykha, Taluka: Vagra, District: Bharuch. The above lands of the petitioners are adjoining to each other and are being cultivated by them as a composite block admeasuring about 60 Hectares. In the year 2009, respondent No.3 – GAIL (India) Limited (“GAIL” for short), was desirous of laying pipelines in connection with the Dahej Vemar Vijapur Gas Pipeline – II Project (“DVPL – II Project” for short), for which purpose, proceedings were initiated under the provisions of the Petroleum and Minerals Pipeline (Acquisition of Right of User in Land) Act, 1962 (“the Act” for short). A Notification dated 02.02.2009 under Section 3(1) of the Act was issued, followed by Notification dated 22.09.2009 under Section 6(1). GAIL commenced the work of laying pipelines for the DVPLII, Project in March 2010, and has completed the entire work. However, as per the petitioners, termination of work has not yet been declared. It is the case of the petitioners that at the time of laying the pipeline of the DVPL – II Project, the existing tubewell of the petitioners and the PVC pipelines laid by them for the supply of water to their fields were badly damaged. A huge amount had been spent by the petitioners for installing the said pipelines. Damage to the pipelines resulted in lack of water supply to certain portions of the fields of the petitioners. It is further asserted that even the canal of Sardar Sarovar Narmada Nigam Limited was damaged. As a consequence, there was total stoppage of water in portions of the canal passing through the land of the petitioners, leading to the drying up of thousands of fruit bearing trees planted by them, due to lack of water, causing huge losses and damage to the petitioners. A detailed Panchnama of the lands of the petitioners was prepared on 01.07.2011, by the TalaticumMantri of Saykha Gram Panchayat, which was forwarded to the Competent Authority (respondent No.2), along with a forwarding letter dated 01.07.2011 from the Sarpanch and Talati cumMantri of Saykha Gram Panchayat. By way of this letter, the TalaticumMantri and Sarpanch of Saykha Gram Panchayat confirmed the factum of loss caused to the petitioners due to damage and injury to the fruit bearing trees, and a Certificate to this effect was issued on 01.07.2011. The petitioners filed their claims for compensation before the Competent Authority vide application dated 18.07.2011, along with a detailed list of supporting documents. The Competent Authority has, by the impugned communication dated 26.08.2011, rejected the claim applications of the petitioners and other farmers of Saykha Village, and has advised them to approach GAIL for settlement of their claims. Aggrieved by the said communication, the petitioners have approached this Court by way of the petition.
4. Mr.J.A.Adeshra, learned advocate for the petitioners has made detailed submissions, which are summarised below:
(1) That the petitioners had filed their claims for compensation before the Competent Authority who is empowered to decide them in view of the provisions of Section 10(3)(iii) of the Act. In response to letter dated 28.07.2011, of the Chief Manager (Construction), GAIL, the Competent Authority had rightly stated, vide letter dated 12.08.2011, that he is empowered to determine compensation for damage, loss and injury for the out of Right of User (“RoU” for short) area, in view of the provisions of Section 10 of the Act. The stand of GAIL that the Competent Authority has no authority to decide claims for areas out of the RoU had not been accepted by the Competent Authority at the relevant point of time. The Competent Authority appears to have succumbed to the pressure of GAIL and changed his stand, by issuing the impugned communication, directing the petitioners to approach GAIL.
(2) That the stand taken by GAIL to the effect that the claims of the petitioners are to be settled by the Contractors of GAIL directly, is not in accordance with the provisions of the Act and the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Rules, 1963 (“the Rules” for short), as there is no privity of contract between the petitioners and the Contractors of GAIL. As per the provisions of Section 10 of the Act, the duty and obligation to pay compensation as determined by the Competent Authority is of GAIL, and it is open to them to recover the amount from their Contractors. Section 10(3)(iii) of the Act clearly provides for determination of compensation for any injury to any other property, whether movable or immovable, by the Competent Authority, or the District Court, therefore, it is clear that the Competent Authority or the District Court can determine the amount of compensation under sub sections (1) and (2) of Section 10 regarding damages caused in the area out of RoU. As there has been no determination of compensation by the Competent Authority in the first instance, the question of approaching the District Court does not arise, as the District Court can only be approached if the petitioners are not satisfied with the determination of compensation by the Competent Authority.
(3) There is no provision of law under which the petitioners can be relegated to approach the Contractors of GAIL for determination of their claims for compensation. The action of the Competent Authority in not deciding the claim application on merits is arbitrary, illegal and violative of Article 14 of the Constitution of India, apart from it being contrary to the provisions of Section 10 of the Act. The petitioners are poor farmers and are being made to run from pillar to post for their claims of compensation, despite the fact that the losses, damages and injuries suffered by them are not disputed by the respondents.
On the strength of the above submissions, it is prayed that the petition be allowed and the Competent Authority be directed to decide the claim application preferred by the petitioners.
5. Mr.P.S.Champaneri, learned Assistant Solicitor General of India, has submitted that the Union of India is a formal party. No submissions on merits have been made.
6. The the then Competent Authority (respondent No.2) has filed an affidavit dated 15.11.2011, wherein it is stated that he has superannuated from service as Competent Authority on 31.08.2010. At present, he has been appointed by GAIL on contract basis, with effect from 01.09.2011 to 30.11.2011. It is stated by respondent No.2 that he had taken a stand that the Competent Authority has jurisdiction to decide the claims for damages for out of RoU area, as per Section 10 of the Act. It is further stated that pursuant to letter dated 28.07.2011, from the Chief Manager of GAIL, he has forwarded all claim applications to the Acquiring Body, i.e. GAIL for appropriate decision and has rejected the claims made by the petitioners.
7. Mr.Rakesh Gupta, learned advocate for M/s.Trivedi and Gupta, on behalf of respondents Nos.3 to 5, has made the following submissions:
(i) That the present petition is not maintainable under Article 226 of the Constitution of India, as the claims made by the petitioners can be decided by the District Court. Besides, the petition involves disputed questions of fact that cannot be decided by this Court in exercise of writ jurisdiction, therefore, the petitioners may be relegated to the Competent Court for filing a Civil Suit or to approach the Contractors of GAIL to settle their claims, as directed by the Competent Authority.
(ii) That the claims for damages pertain to out of RoU area, therefore, the Competent Authority does not have jurisdiction to decide such claims. As per the provisions of the Act, the Competent Authority can decide only those claims for compensation that pertain to damages caused within the RoU area.
(iii) That the Scheme of the Act makes it clear that determination of compensation is to be done only in respect of loss, injury or damage caused within the RoU area. It does not contemplate adjudication of claims arising from damages suffered outside the RoU area.
(iv) That GAIL has entered into a contract with M/s. Punj Lloyd, New Delhi, who would be responsible for satisfying the claims arising for damage to the property of any person or third party outside the RoU area. The present petitioners should raise their claims before the Contractor M/s.Punj Lloyd, New Delhi, or file a Civil Suit for this purpose. The Competent authority has, therefore, rightly rejected the claim application of the petitioners by directing them to approach the Contractor engaged by GAIL. As GAIL is interested in settling the claims of the petitioners and other farmers speedily, the petitioners can, even now, approach the Contractor of GAIL for early settlement.
The learned counsel for respondents Nos.3 to 5 has taken the Court through various provisions of the Act, in support of his submissions that the Act contemplates payment of compensation only with regard to areas falling within the RoU.
8. Ms.Archana C. Rawal, learned Assistant Government Pleader, submits that the State Government does not have any role to play in the proceedings, therefore, no submissions are required to be made.
9. The short, but pertinent question of law that arises for determination in the petition is, whether the Competent Authority under the Act is empowered to determine the amount of compensation for loss, damage or injury to the property caused outside the area underneath which the pipeline has been, or is being, laid.
10. In order to answer this question, it would be appropriate to refer to the Scheme, and salient provisions, of the Act. The statute has been enacted to provide for the acquisition of right of user in land for laying pipelines for the transport of petroleum and minerals and for matters connected therewith.
11. Section 2(a) defines “Competent Authority” as:
Official Gazette, to perform the functions of the Competent Authority under this Act and different persons or authorities may be authorized to perform all or any of the functions of the Competent Authority under this Act in the same area or different area specified in the notification.”
12. Section 3(1) provides for issuance of a Notification in the Official Gazette by the Central or the State Government or Corporation whenever it appears necessary in the public interest to transport petroleum or any mineral from one locality to another by laying pipelines and, to acquire the right or user in any land under which the pipelines may be laid.
13. As per Section 3(2), every Notification under subsection (1) shall contain a brief description of the land and as per Section 3(3), the substance of the Notification shall be caused to be published by the Competent Authority at such places and in such a manner as may be prescribed. After issuance of Notification under Section 3(1), persons authorized by the Central Government, State Government or Corporation which proposes to lay the pipelines and transport petroleum, are empowered to enter upon, survey and take levels of the land as specified in the Notification as per Section 4(1), and to carry out all other acts on such land, as specified in Clauses (a) to (f) of subsection (1) of Section 4. The proviso to Section 4 stipulates that while exercising power under this Section, the authorized person, servant or workman of such person shall cause as little damage or injury as possible to such land. Section 5 provides for hearing of objections within a period 21 days from the date of Notification under subsection (1) of Section 3. As per Section 5(2), the Objector shall be provided an opportunity of hearing and after making such further inquiry, if any, the authority can either allow or disallow, the objections.
14. Section 6 provides that the Competent Authority shall make a Report in respect of the land described in the Notification in subsection (1) of Section 3 to the Central Government along with his recommendations on the objections. Upon receipt of such Report, if the Central Government is satisfied that such land is required for laying a pipeline for the transportation of petroleum, it is empowered to issue a Notification in the Official Gazette to the effect that the right of user in the land for laying the pipelines should be acquired and on the publication of declaration under subsection
(1) of Section 6, the right of user in the land specified therein shall vest absolutely in the Central Government, free from all encumbrances.
15. Section 7 empowers any person authorized by the Central or State Government or Corporation, as the case may be, to enter upon the land and lay pipelines and do all other acts necessary for laying of pipelines in the manner provided.
16. Power to enter the land for inspection for the purpose of maintaining, examining, repairing, altering or removing any pipeline or performing any act for the utilization of the pipelines, is provided in Section 8, after giving due notice to the occupier of the land under which the pipeline has been laid. The second proviso to section 8 further stipulates that while exercising power under this Section, such person, workman or assistant shall cause as little damage or injury as possible to such land.
17. Restrictions on the owner or occupier of the land with respect to which declaration has been made under subsection (1) of Section 6 have been enumerated in Section 9 of the Act.
18. The most relevant provision for adjudication of the issue that arises in the petition is Section Section 10, which provides for determination of compensation. The said Section is reproduced hereinbelow:
“10. Compensation:
(1) Where in the exercise of the powers conferred by section4, section7 or section 8 by any person, any damages, 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 subsection (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 situate, be determined by the District Judge.
(3) The competent authority or the District Judge while determining the compensation under subsection (1) or subsection (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 subsection (1) of section 3.
(4) Where the right of user of any land has vested in the Central Government, the State Government or the Corporation, the Central Government, the State Government or the Corporation, as the case may be, shall, in addition to the compensation, if any, payable under subsection (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 subsection (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 subsection (2), be determined by that District Judge.
(6) The decision of the District Judge under subsection (2) or subsection (5) shall be final.”
19. The other provisions of the Act are not directly relevant, except for Section 14 that imposes a bar of jurisdiction of Civil Courts in respect of any matter which the Competent Authority is empowered by, or under, the Act to determine and stipulates that no injunction shall be granted by any Court or authority in respect of any action taken, or proposed to be taken, in pursuance to the power conferred by, or under, the Act.
20. The main thrust of the submissions advanced by the learned counsel for respondents Nos.3 to 5 is that references to “such land” in the above provisions of law are specific only to the land for which the right of user has been acquired, which is called the RoU land, and the Competent Authority is empowered to determine compensation only with regard to this land and not any other. On the other hand, learned counsel for the petitioners relies upon the provisions of Section 10(3)(iii) of the Act to submit that it clearly mentions injury to “any other property”, whether movable or immovable and the words “any other property” refer to land not covered under the RoU area, and the Competent Authority has jurisdiction to determine claims in respect to any other areas.
21. In the above contextual background, it may be useful to advert to the Rules. Rule 3 provides for the manner of publication of the Notification under subsection (1) of Section 3 of the Act. Rule 4 deals with filing of a claim for compensation and reads as under:
“4. Filing of claims for compensation:
(1) Any Person interested in any land may file before the Competent Authority a claim for compensation
(a) for damages by that person by reason of the exercise of the powers conferred by section 4
(i) in case the right of user in the land has not been acquired, within sixty days from the date on which the notification under subsection (1) of the section 3 ceased to have effect, or
(ii) in case the right of user in the land has been acquired, within sixty days from the date of publication of the declaration under subsection (1) of section 6;
(b) for damages sustained by that person by reason of the exercise of the powers conferred by section 7, within sixty days from the date of termination of the operations referred to in clause (i) of sub section (1) of that section;
(c) for damages sustained by that person by reason of the exercise of the powers conferred by section 8, within sixty days from the date of termination of the operation referred to in that section;
(d) under subsection (4) of section 10, within sixty days from the date of publication of the declaration under sub section (1) of section 6;
Provided that the competent authority may admit any claim within thirty days after the expiry of the period specified in this sub rule, if he is satisfied that the applicant had sufficient cause for not making the application within such specified periods.
Explanation 1: The expression “the date of termination of operation with reference to any area” means
(a) for the purpose of clause (b), the date of completion of works connected with the laying of pipelines in that area;
(b) for the purpose of clause (c),the date of completion of all, or any of, the works referred to in section 8 in relation to the pipelines laid in that area;
Which the Competent Authority may notify in the official Gazette and by beat of drum in the locality, in consultation with the party in whom the right of user in the land in that area has vested ownership of the pipelines laid in that area vests, as the case may be.
Explanation 2: For the purpose of this sub rule the expression “sufficient cause” shall mean
(i) where the delay in filing the application for claim within the specified period is beyond the control of the applicant;
(ii) where the delay in filing the application for claims within the stipulated period is on account of any force majeure reasons such as riots, floods, civil war, foreign aggression, earthquake, or fire etc.;”
(2) The claim for compensation shall be made in such form specified in the Schedule annexed to these rules.
(3) The competent authority shall, on receipt of the claim for compensation, make such inquiry as provided in rule 4A and fix the compensation and thereafter inform the parties referred to in subsection (2) and (5) of section 10 of the amount of compensation so fixed.
(3) The Competent Authority shall, on receipt of the claim for compensation, make such inquiry as provided in rule 4A and fix the compensation and thereafter inform the parties referred to in subsection (2) and (5) of section 10 of the amount of compensation so fixed.”
(emphasis supplied)
22. Rule 4A has some relevance to the point in issue and is extracted hereinbelow:
“4A While conducting enquiry and for granting compensation under subrule (3) of rule 4 the Competent Authority shall follow the following procedure, namely:
(1) for compensation of land due to the deprivation in right of enjoyment to any person interested in the land the Competent Authority may enquire the rate of land prevailing in that locality on the date of publication of the notification under sub section (12) of section 3 of the Act from the following sources, namely:
(a) local registration authority such as the Registrar, SubRegistrar or any Officer or authority for the time being authorized to register the documents under the Indian Registration Act, 1908 (16 of 1908);
(b) land acquisition authority, under the Land Acquisition Act, 1894 (1 of 1894) if any land has been acquired during such period in the locality; and
(c) Officer or authority of the Government who fixes the reserve price of the land for any purpose under any law for the time being in force;
Provided that any rate taken for consideration shall not be less than the reserve price fixed by such officer or authority.
(2) For compensation for other damages or loss while exercising the powers conferred under the Act or rules made thereunder the competent authority shall,
(a) obtain the Panchnama prepared by a team appointed by him duly signed preferably by the person interested in the land or by two independent and respectable inhabitants of the locality and the representative of work execution agency. The said Panchnama shall contain the details of damages or losses caused while exercising the powers conferred by section 4, 7 or 8 of the Act;
(b) enquire the yield of crops, trees, and fruits, etc. from the Government agency such as horticulture or agriculture department of the Central Government or State Government or as per the statistics of the Central Government and/or State Government or from any local Government body;
(c) make requisition of the market value of the crops, timber, wood, fruit, etc., from the agriculture department or any other concerned government agency or semi Government agency such as the Agricultural Marketing Board, Krishi Upaj Mandi, or any other agency authorized under any law to assess the market value of crops, wood, fruits, etc.;
(d) get the other losses, if any, assessed from the Government agency or from any qualified engineer or through any valuer registered under section 34AB of the Wealth Tax Act, 1957 (27 of 1957); and
(e) in case of Presumptive Crop Compensation, i.e. compensation for the profits which the cultivator would have received for crop normally cultivated on the land during the season or period, to which the compensation relates, but for being prevented from cultivating the land, the competent authority may deduct twenty per cent of net value as saving in seeds, fertilizers, labour, etc.”
(emphasis supplied)
23. Rule 5 deals with application to the District Judge for determination of compensation and reads as below:
“5. Application to the District Judge for determination of compensation:
Any party aggrieved by the determination of the amount of compensation may prefer an application to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, not later than ninety days of the receipt of the intimation from the competent authority under rule 4(3).”
24. Having noticed the relevant legal provisions, it would be worthwhile to take note of certain documents on record. A Panchnama has been drawn on 01.07.2011 as per Rule 4A(2), regarding damage to thousands of fruit bearing trees due to damages caused to the pipeline for irrigation on the land of the petitioners. This fact is not denied by the respondents. The petitioners have placed on record, communication dated 28.07.2011 from the Chief Manager (NG PL O & M), Gail (India) Limited to the Competent Authority with reference to the claims regarding damages for out of RoU area. The gist of the said communication is that the Act, read with the Rules framed thereunder, does not confer jurisdiction upon the Competent Authority to admit and adjudicate claims or complaints seeking compensation for damages caused to areas outside the RoU. In response to this communication, the Competent Authority has addressed a letter dated 12.08.2011, to the Chief Manager (NG PL O & M), Gail (India), drawing attention to the provisions of Section 10(3) of the Act, and stating that in view of the same, “the Competent Authority has the jurisdiction to look after the damages to out of ROU area also”, and that the Act confers jurisdiction upon the Competent Authority to admit and adjudicate a claim or complaint seeking compensation for damages caused to the area outside the RoU on account of the work carried on for laying of the pipeline.
25. As mentioned hereinabove, the Competent Authority has filed an affidavit dated 15.11.2011, stating that he has retired on 31.08.2010, and after retirement, he has been appointed on contract basis with effect from 01.09.2011 to 30.11.2011, by GAIL, vide letter dated 16.09.2011.
26. The impugned communication dated 26.08.2011 may now be examined in light of the above factual and legal position. The said communication has been addressed to the learned advocates of the petitioners, after receipt of the claim applications filed through them. The penultimate paragraph of the impugned communication would clarify the stand taken and reads as below: “Looking to the huge damages caused to the crop and tree as per Panchnama prepared and also considering the progress of DVPLII, Gail was requested to give comments so that the claim can be determined and settled. However, looking to the stand taken by the Gail, I feel that Gail intends to settle the claims through their contractor and as per the terms of the contract. Upon failure of contractor to settle the claims latest by 27082011, you may approach Gail to settle the claims as per Panchnama prepared by my team as per Rule 4A(2)(a) of the P&MP Rules, 1963. In view of the above, I hereby reject the claim application filed by farmers of Sayakha Village with an advice to approach Gail for settling their claims.”
27. It is clear from the above that extensive damage has been caused to the property of the petitioners and, as per the Panchnama, the losses suffered by them due to laying of pipelines by GAIL, is huge. In spite of acknowledging this fact, the Competent Authority has rejected the claim applications of the petitioners, advicing them to approach GAIL, solely on the basis of the stand taken by GAIL, as referred to in the above quoted letter, that it intends to settle the claims through its Contractor, as per terms of the contract. It appears that the Competent Authority has done a complete volteface from the earlier stand taken by him as expressed in communication dated 12.08.2011, addressed to GAIL. No reasons, leave alone valid or legal reasons, have been advanced by the Competent Authority for rejecting the claim application filed by the petitioners. The Competent Authority does not state in the impugned communication that he does not have jurisdiction or is not empowered to determine the claims for compensation raised by the petitioners. It appears from the said communication that the Competent Authority has clearly been influenced by the stand taken by GAIL, instead of fulfilling the statutory duties and obligations entrusted to him under the Act and Rules.
28. The Competent Authority is a quasijudicial authority exercising specific powers under the Act. As per the provisions of Section 10(1) of the Act, the amount of compensation for damages, loss or injury sustained by any person interested in the land under which the pipeline is proposed to be laid, is to be determined, in the first instance, by the Competent Authority. It is only when the amount of compensation as determined by the Competent Authority under subsection (1) of Section 10 is not acceptable to either of the parties that an application can be made to the District Judge, as provided in subsection (2) of Section 10. Subsection (3) of Section 10 empowers the Competent Authority or the District Judge, while determining the compensation under subsections (1) or (2) of Section 10, to take into consideration all relevant aspects, as mentioned in clauses (i) to (iii) of subsection (3) of Section 10, with regard to the loss or damage sustained by any person interested in the land. As per clause (iii) of subsection (3), the Competent Authority is bound to take into consideration any injury to any other property, whether movable or immovable, while determining the amount of compensation. The words “any injury” to “any other property” are clearly indicative of the intention of the Legislature that compensation is to be determined not only for damages suffered on the land under which the pipeline is being, or has been, laid (RoU) but also for damages caused due to laying of the pipeline, to “any other property” (out of RoU).
29. Subsection (1) of Section 10 refers to damage, loss or injury sustained by any person interested in the land under which the pipeline is proposed to be laid, or is being laid. This provision has to be read with clause (iii) of subsection 3 of Section 10 and read in this manner, the clear and unambiguous meaning that emerges is that compensation is to be determined by the Competent Authority, having due regard to the damage or loss sustained by any person by reason of any injury to any other property whether movable or immovable, or the earnings of such persons caused in any other manner. In the present case, there has been no determination of compensation at all by the Competent Authority, therefore, the question of approaching the District Judge under subsection (2) of Section 10 does not arise. The language of Section 10 is clear and unambiguous and the entire Section has to be read as a composite whole. Such a reading leaves no manner of doubt that the Competent Authority is empowered to determine compensation with respect to the damages caused in the land under which the pipeline is laid and also with respect to injury to “any other property”.
30. The term “RoU” indicates Right of User and has not been defined in the Act. It has been clarified by the learned advocate for respondents Nos.3 to 5 that the area of RoU is fixed taking into consideration the width of the pipeline to be laid. In any case, the definition of the width of the RoU may have relevance for technical reasons but cannot override the express provisions of the Act.
31. In the considered view of this Court, clause (iii) of subsection (3) of Section 10 read with subsection (3) makes it amply clear that the Competent Authority has the jurisdiction to determine the amount of loss or damage sustained by any person interested in the land by reason of any injury to any other property, whether movable or immovable. The words “any other property”, in view of this Court, include the other property that may not strictly fall within the RoU area. The procedure for laying pipelines entails entering upon the land, digging, bringing in machinery and doing several other acts that may cause damage to land other than the strip of land underneath which the pipeline is being laid (RoU). To enter the RoU land, access has to be taken from other land. In the case of the petitioners, their water supply pipeline has been blocked and damaged and even the Narmada canal water supply line for irrigation has been damaged, causing huge losses to thousands of fruit bearing trees. This aspect is not denied by the respondents and a Panchnama under Rule 4A(2) has been drawn up that highlights the extent of the damage.
32. Rule 4A(2) specifically states that for compensation for `other' damages and losses while exercising the powers conferred under the Act or Rules, the Competent Authority `shall' have a Panchnama prepared, in the manner specified by the said Rule. After following the mandate of Rule 4A(2) and preparation of the Panchnama, the Competent Authority, for reasons best known to him, has refused to perform the statutory duties entrusted to him by Section 10 of the Act, for the apparent reason that GAIL has written to him, stating that he has no jurisdiction to decide claims for out of RoU areas and the claimants should be told to approach the Contractors of GAIL. The Competent Authority is especially empowered by the Act to perform the duties and fulfil the obligations laid down in the Act and Rules. In determining the claims for compensation as a quasijudicial authority, the Competent Authority is bound to perform his statutory duties independently, and in accordance with law. Having expressed an opinion vide communication dated 12.08.2011 that he is empowered by the Act to determine the claims of the petitioners, the Competent Authority appears to have found it more convenient to toe the line of GAIL, which is the acquiring body. In the view of this Court, the rejection of the claim application of the petitioners on the ground that they should approach the Contractors of GAIL, is a blatant violation of the provisions of Section 10 of the Act. This action of the Competent Authority amounts to dereliction, if not abdication, of the statutory duties that he is bound to perform under the Act. It is nowhere mentioned in the Act that the Competent Authority is empowered to relegate the claimants to the Contractors of the acquiring body. The action of the Competent Authority in rejecting the claim application of the petitioners on this ground is clearly illegal, arbitrary, and unsustainable in law.
33. Any contract entered into by GAIL with its contractors is their internal matter, having no relevance, whatsoever, insofar as determination of compensation under the Act is concerned. The petitioners do not, in any manner, figure in the said contract. As there is no privity of contract between the petitioners and the Contractors of GAIL, the arrangement for payment of compensation worked out by GAIL with its Contractors under the contract, is of no consequence and does not bind either the petitioners or the Competent Authority. The provisions of the Statute, more especially, Section 10, cannot be modified or nullified by any provisions of a contract entered into by GAIL. The manner in which the amount of compensation is to be determined is clearly laid down in Section 10 of the Act read with the relevant Rules, and cannot be deviated from by the Competent Authority, at the behest of GAIL.
34. An objection has been raised by the learned advocate for respondents Nos.3 to 5 to the effect that the petitioners should approach the District Judge and this Court may not entertain the petition as it involves disputed questions of fact. Both these submissions are devoid of substance. Under Section 10(2) of the Act, the parties can approach the concerned District Judge only in the eventuality that the amount of compensation determined by the Competent Authority is not acceptable to them. In the first instance, it is the Competent Authority that is to be approached and the petitioners have rightly made their claim applications before the said Authority. Section 10 does not envisage that the claimants should straightaway approach the concerned District Judge. Further, Section 14 of the Act imposes a bar on the jurisdiction of Civil Court in respect of a matter that the Competent Authority is empowered to determine. Section 10, read with Rules 4 and 4A, lay down a composite procedure to be followed while determining the claims for compensation. The clear statutory mandate cannot be modified or deviated from, to suit the Acquiring Body. When the Act and Rules lay down the procedure to be followed, the parties are bound to follow the same. Further, the Court finds that no disputed questions of fact arise in this case. It is an admitted fact that extensive damage has been caused to thousands of fruit bearing trees, resulting in huge losses to the petitioners. This is clear from the Panchnama. The only question that now remains is regarding determination of compensation by the Competent Authority. This cannot be said to be a disputed question of fact. Even while rejecting the applications of the petitioners, the Competent Authority has not stated that he has no jurisdiction to determine the claims. He is, therefore, bound to do so under the Act and Rules. No disputed questions of fact arise for the adjudication of this Court.
35. It cannot be lost sight of that the petitioners are agriculturists, who have lost thousands of fruit bearing trees due to the process of laying of the pipeline by respondents Nos.3 to 5. They have made applications for claiming compensation as per the provisions of the Act and Rules. They cannot be relegated to the Contractors of GAIL, dehors the provisions of the Act. As discussed hereinabove, the Act and Rules contemplate determination of compensation for injury and damage to “any other property”, whether movable or immovable, and even for loss of earnings caused in any other manner. There is no legal or justified reason for not determining compensation for the claims made by the petitioners, who are being made to suffer and wait unnecessarily, for no fault of their own. The petitioners have availed of the only remedy available to them under the Act. Any internal arrangement between GAIL and its contractors, by virtue of a contract, is not binding upon them. The Competent Authority is, therefore, bound to determine the claims of the petitioners in accordance with the provisions of Section 10 of the Act.
36. For the aforestated reasons, the petition is allowed. The impugned communication dated 26.08.2011, being legally unsustainable, is quashed and set aside. The Competent Authority is directed to decide the claim application dated 18.07.2011, preferred by the petitioners, in accordance with law, as expeditiously as possible and not later than six months from the date of receipt of a copy of this judgment. If no Competent Authority has been appointed after retirement of respondent No.2, the Union of India is directed to expedite the said appointment, so that the claim applications can be decided at the earliest. Rule is made absolute. There shall be no orders as to costs.
(sunil)
(Smt. Abhilasha Kumari, J.)