Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 874 (GUJ)

Khedut Utkarsh Mandal v. Deputy Collector and Competent Authority

2019-10-09

J.B.PARDIWALA, V.B.MAYANI

body2019
JUDGMENT : J.B. Pardiwala, J. 1. By this writ-application under Article 226 of the Constitution of India, writ-applicant a registered society has prayed for the following reliefs: "(a) THIS HONORABLE COURT MAY BE PLEASED TO hold and declare that the impugned action of the respondents of not following the procedure as provided under P&MP Act and Rules framed there-under, more particularly Section 10(3), Rule 4 and Rule 4(A) of the PMP Act and Rules framed there-under is grossly illegal and unconstitutional and violative of fundamental rights of the petitioner and the affected farmers/land owners. (b) THIS HONORABLE COURT MAY BE PLEASED TO direct the respondents to strictly follow the procedure as provided under the PMP Act and Rules framed thereunder for acquisition of right of user in the land of the petitioner for its Koli-Ahmednagar- Solapur Pipeline Project. (c) THIS HONORABLE COURT MAY BE PLEASED TO direct the respondents to follow procedure and to provide information as sought for by the petitioner by Application dated 12.3.2018, 24.4.2018, 4.6.2018, 7.11.2018 and 14.11.2018. (d) Pending admission hearing and till final disposal of present petition, THIS HONORABLE COURT MAY BE PLEASED TO restrain the respondents from undertaking any process of acquisition of right of user for its Koli-Ahmednagar-Solapur Pipeline Project, unless the requisite procedure under the P&MP Act and the Rules framed there-under is followed in its entirety and just, fair and adequate compensation is paid to the affected land owners/farmers. (e) THIS HONORABLE COURT MAY BE PLEASED TO award the costs of present petition all throughout. (f) THIS HONORABLE COURT MAY BE PLEASED To grant such other and further relief's as may be deemed fit, just and proper in the facts and circumstances of the case." 2. The case of the writ-applicant, in its own words, as pleaded in the writ-application, is as under: "(1) The petitioner a Registered Society is constrained to prefer present petition for and on behalf of 514 farmers land owners seeking compliance of the provisions of the Petroleum Mineral Pipelines Act, 1962 and the Rules framed there-under (hereinafter referred to as P&MP Act and the Rules framed thereunder). The petitioner is constrained to prefer present petition, since the respondent No. 2-Indian Oil Corporation (hereinafter referred to as "the Corporation") has been laying pipelines under P&MP Act for its Koli- Ahmednagar-Solapur Pipeline Project, but is not following the procedure as prescribed and provided under the P&MP Act and Rules framed thereunder. Consequently, the affected land owners/farmers are deprived of their fundamental rights to make claim and seek compensation under the P&MP Act and Rules framed thereunder for the damages caused to them on account of the said pipeline project. Therefore, the petitioner, by way of present petition, seeks necessary direction for compliance and implementation of the provisions of P&MP Act and PMP Rules framed thereunder during the process of laying pipeline for the said Project to exercise their fundamental rights and claims compensation. (2) The petitioner states and submits that the petitioner is a registered Society of farmers working for the benefit of the farmers. The Members of the petitioner Society are the national and citizens of India, hence entitled to the protection of all rights, more particularly the fundamental rights enshrined under the Constitution of India. The respondents are "the Statutory Authority and State" falling under the scope and ambit of Article 12 of the Constitution of India, and hence, amenable to the writ jurisdiction of this Honorable Court. The petitioner states and submits that the present petition as preferred for and on behalf of 514 affected farmers/land owners. (3) The petitioner states and submits that the brief facts giving rise to present petition are as follows: (3.1) The respondent No. 2-Corporation intended to lay pipelines for its Project i.e. Koili Ahmednagar-Solapur Pipeline Project. Therefore, Notification under Section 3(1) of the P&MP Act was published on 16.2.2017. (3.2) Subsequently on 3.2.2018 Notification under Section 6(1) of the P&MP Act was also published. (3.3) Therefore, on 12.3.2018 the petitioner addressed a Representation to the respondent No. 1-Deputy Collector and Competent Authority to follow the procedure as contemplated under P&MP Act and the Rules framed there-under, particularly Rules 4 and Rule 4(A) in order to facilitate the affected land owners/farmers to avail compensation as provided under Section 10 of the P&MP Act. (3.3) Therefore, on 12.3.2018 the petitioner addressed a Representation to the respondent No. 1-Deputy Collector and Competent Authority to follow the procedure as contemplated under P&MP Act and the Rules framed there-under, particularly Rules 4 and Rule 4(A) in order to facilitate the affected land owners/farmers to avail compensation as provided under Section 10 of the P&MP Act. (3.4) Subsequently on 24.4.2018 around 514 affected land owners/farmers also made a detailed Application and inter-alia urged the respondents to comply with the provisions of the P&MP Act and Rules framed there-under, more particularly sought document with respect to the Project and laying down of pipelines and preparation of Panchnama and record of the acquisition under the right of user under the P&MP Act and the Rules framed thereunder. (3.5) In response to the aforesaid on 21.5.2018, the respondent No. 1 the Dy. Collector and Competent Authority addressed reply inter-alia stating that the requisite proceedings will be conducted under the P&MP Act. (3.6) Subsequently on 4.6.2018 a Notice through Advocate was also sent to the respondent under the instructions of the President of the petitioner Society seeking compliance of the provisions of the P&MP Act and the Rules framed there-under and also reiterating the grievance as raised by the affected land owners/farmers. (3.7) However, neither the procedure as required to be followed under the provisions of P&MP Act and the Rules framed there-under was followed, nor the affected land owners farmers were informed about any such procedure and also not included and made to participate in such procedure. Subsequently around on 20.10.2018 the Revenue Team of the respondent No. 1-Deputy Collector and Competent Authority instructed the affected land owners and farmers that award under Section 10(4) of the PMP Act for compensation of loss of land has been passed and the affected land owners/farmers may collect the payment there of. At this stage also the neither documents were provided, nor the award was provided. (3.8) In view of the aforesaid on 7.11.2018 the Vice President of the petitioner Society and Advocate on behalf of the land owners/farmers filed Application under Right to Information Act, 2005, before the respondent No. 1-Deputy Collector and Competent Authority seeking information of the proceedings conducted under the P&MP Act and the Rules framed there-under. (3.8) In view of the aforesaid on 7.11.2018 the Vice President of the petitioner Society and Advocate on behalf of the land owners/farmers filed Application under Right to Information Act, 2005, before the respondent No. 1-Deputy Collector and Competent Authority seeking information of the proceedings conducted under the P&MP Act and the Rules framed there-under. (3.9) In response to the same on 19.11.2018 the respondent No. 1-Deputy Collector and the Competent Authority replied and closed the Application under the Right To Information Act and further informed that necessary proceedings would be conducted under the P&MP Act. (3.10) Therefore, on 14.11.2018 around 514 affected land owners/farmers made Application to obtain Copies of the awards that may have been passed under the P&MP Act and Rules framed there-under, more particularly under Section 10(1) for loss of crops and trees and Section 10(4) for loss of land. The said Applications were also forwarded by a forwarding letter by the petitioner Society. (3.11) In response to the aforesaid, the respondent No. 1 Deputy Collector and Competent Authority addressed the Reply dated 19.11.2018 to the petitioner inter-alia closing the petitioner's application and inter-alia stating that the petitioner has no locus standi to file such Applications. Whereas no reply or response is made to 577 application made by affected framers/land owners. Moreover, no reply to the Application of the affected land owners/farmers has been given. (3.12) Therefore, under the aforesaid facts and circumstances, as the respondents have firstly not followed the procedure required to be followed under the P&MP Act and the Rules framed thereunder, while laying pipelines for its Project and claiming right of user in their lands and further also neither included the affected land owners/farmers in the proceedings of the acquisition of land user under the P&MP Act and Rules framed thereunder, nor provided information even under the RTI Act and more particularly the awards that may have been passed under Section 10(1) and 10(4) of PMP Act, the petitioner is constrained to prefer present petition on the following main amongst other grounds, which may be urged and argued at the time of hearing and which are without prejudice to one another, since the impugned actions of the respondents are in gross violation of petitioner's and other 514 affected land owners/farmers' fundamental rights, more particularly under Articles 14, 19, 21 and 300(A) of the Constitution of India. (4) The petitioners most respectfully states and submits that the impugned actions of the respondents are illegal, improper unjust, unreasonable, arbitrary, contrary to the facts, circumstances and evidence on record, against the settled principles and propositions of law and grossly in breach and violation of provisions of the P&MP Act and the Rules framed there-under and also in violation of the principles of natural justice and equity." 3. Thus, it appears from the pleadings that the writ-applicant is a registered society and its members are all farmers. The Society is espousing the cause of the farmers. The grievance of the writ-applicant is that the respondent No. 2-Corporation, while laying down the underground pipelines in the agricultural farms of the farmers for its project, is not complying with the statutory provisions of the Petroleum and Mineral Pipelines Act, 1962 (for short "the Act, 1962"). The grievance voiced by the Society on behalf of its members, i.e. the farmers, are two-fold. First is with regard to non-furnishing of the panchnama, which is being drawn at the place where the pipelines are laid, and secondly, the failure on the part of the competent authority to furnish the copy of the award passed under the provisions of the Act, 1962. 4. Mr. Hakim, the learned counsel appearing for the writ-applicant, vehemently submitted that the farmers are entitled to have a copy of the panchnama because it is only on the basis of the panchnama that an appropriate compensation can be determined by the competent authority. In short, according to Mr. Hakim, the panchnama is a document which would indicate the damage, if any, caused to the trees or the land of a particular farmer. Mr. Hakim would submit that the copy of the award would also be necessary if the farmer wants to prefer an appeal for the enhancement of the amount of compensation that may be determined by the competent authority. In such circumstances referred to above, Mr. Hakim, the learned counsel, prays that this Court may pass appropriate directions to protect the interest of the farmers. 5. On the other hand this writ-application has been vehemently opposed by Mr. M.R. Bhatt, the learned senior counsel appearing for the respondent No. 2-Indian Oil Corporation. Mr. Bhatt has raised a preliminary objection with regard to the maintainability of this writ application at the instance of the Society. According to Mr. 5. On the other hand this writ-application has been vehemently opposed by Mr. M.R. Bhatt, the learned senior counsel appearing for the respondent No. 2-Indian Oil Corporation. Mr. Bhatt has raised a preliminary objection with regard to the maintainability of this writ application at the instance of the Society. According to Mr. Bhatt, the writ-applicant claims to be espousing the cause of the farmers, however, so far as the individual rights of the farmers are concerned, the same can be agitated only by the affected farmers whose lands are sought to be acquired. Mr. Bhatt, the learned senior counsel appearing for the respondent No. 2, in support of his preliminary objection, has placed reliance on a Division Bench decision of the Madras High Court in the case of T. Sekar vs. District Collector rendered in the Writ Petition No. 5345/2013, decided on 25.07.2016, wherein the Court observed in para 9 as under: "9. We may note at the inception that in so far as the individual rights for farmers are concerned, the same can be agitated only by the affected farmers whose land is sought to be acquired. If the farmers are satisfied with the compensation, no third party like the petitioner can raise the issue on their behalf." 6. Mr. Bhatt submitted that even otherwise the writ-applicant has no case on merits and the writ-application deserves to be rejected outright. Mr. Bhatt would submit that all the provisions of the Act, 1962, are being scrupulously followed at the time of laying the pipelines and the grievance which has been voiced by the Society on behalf of its members is without any basis. Mr. Bhatt invited the attention of this Court to the averments made in the affidavit-in-reply filed on behalf of the respondent No. 1. We may quote the relevant averments made in the affidavit-in-reply as under:- "6. I respectfully state and submit that the present petition involves grievances raised by the Petitioner in respect of landowners belonging to four Talukas namely Vadhodiya, Dabhi, Karjan and Shinor. A list of documents to prove that due procedure under the Act and Rules has been followed throughout for all the four talukas with adequate explanation is enlisted herein-below: 7.1 Taluka: Vaghodiya; Village: Bhaniyara The Award under Section 10(1) as well as under Section 10(3) has been passed and the compensation has already been paid to the respective landowners. A list of documents to prove that due procedure under the Act and Rules has been followed throughout for all the four talukas with adequate explanation is enlisted herein-below: 7.1 Taluka: Vaghodiya; Village: Bhaniyara The Award under Section 10(1) as well as under Section 10(3) has been passed and the compensation has already been paid to the respective landowners. A list of documents in respect of a landowner from Taluka: Vaghodiya Village: Bhaniyara (who forms a part of the list annexed in the memo of petition under Annexure-A) in annexed herewith and marked as "ANNEXURE R-1 (COLLY)." The said documents include the following: (a) Notification published under Section 3 (b) Notice issued to the landowner under Section 3 (c) Objection received against the notice issued (d) Notice issued intimating the landowner of hearing (e) Objections tendered by the landowner at the time of hearing (f) Proceedings Sheet at the time of hearing, which bears the signature of the landowner and Advocate (g) Order passed by the undersigned rejecting the objections (h) Notification published under Section 6 (i) Notice issued under Section 6 to the landowner (j) Award passed under Section 10(1) (k) Receipt evidencing the compensation paid to the landowner (l) Panchnama drawn during the site inspection, which bears the signature of the landowner and Sarpanch (m) Award passed under Section 10(3) (n) Receipt evidencing the crop compensation paid to the landowner Therefore, a mere perusal of the same would reveal that all documents have been provided to the landowner and the letters addressed requesting for information and to ensure due compliance of Rule 4 and Rule 4A of the Rules is nugatory since the compliance of the said Rules is possible only at the stage of drawing of Award under Section 10(3), which has been passed on 29.11.2018, whereas all the requests from the Petitioner for the landowner are prior to that date. Hence, in light of these documents, I respectfully submit that the grievance urged in this petition is misplaced. 7.2 Taluka: Dabhoi; Village: Valipura The Award under Section 10(1) has been passed and the compensation has already been paid to the respective landowners. Hence, in light of these documents, I respectfully submit that the grievance urged in this petition is misplaced. 7.2 Taluka: Dabhoi; Village: Valipura The Award under Section 10(1) has been passed and the compensation has already been paid to the respective landowners. A list of documents in respect of a landowner belonging to Village: Valipura Taluka: Dabhoi (who forms a part of the list annexed in the memo of petition under Annexure-A) in annexed herewith and marked as "ANNEXURE R-2 (COLLY)." The said documents include the following: (a) Notification published under Section 3 (b) Notice issued to the landowner under Section 3 (c) Objection received against the notice issued (d) Notice issued intimating the landowner of hearing (e) Objections tendered by the landowner at the time of hearing (f) Proceedings Sheet at the time of hearing, which bears the signature of the landowner and Advocate (g) Order passed by the undersigned rejecting the objections (h) Notification published under Section 6 (i) Notice issued under Section 6 to the landowner (j) Award passed under Section 10(1) (k) Receipt evidencing the compensation paid to the landowner (l) Panchnama drawn during the site inspection, which bears the signature of the landowner and Sarpanch Therefore, this is a case wherein an award under Section 10(3) has not been passed but Panchnama has been drawn, which bears the signature of the respective landowner. In light of the same, I humbly state and submit that the grievances raised in the petition as well as the letters annexed are misplaced. In light of the same, I humbly state and submit that the grievances raised in the petition as well as the letters annexed are misplaced. 7.3 Taluka: Karjan; Village: Daroli A list of documents in respect of a landowner belonging to Village: Daroli Taluka: Karjan (who forms a part of the list annexed in the memo of petition under Annexure-A) in annexed herewith and marked as "ANNEXURE R-3 (COLLY)." The said documents include the following: (a) Notification published under Section 3 (b) Notice issued to the landowner under Section 3 (c) Objection received against the notice issued (d) Notice issued intimating the landowner of hearing (e) Objections tendered by the landowner at the time of hearing (f) Proceedings Sheet at the time of hearing, which bears the signature of the landowner and Advocate (g) Order passed by the undersigned rejecting the objections (h) Notification published under Section 6 (i) Notice issued under Section 6 to the landowner In the aforementioned case, the undersigned has yet to pass an award under Section 10(1) and Section 10(3) of the Act, and hence preemption that the subsequent compliances under Rule 4 and Rule 4A will not be followed, even before that stage has arisen, would in my respectful submission not be a valid ground to file the present petition and question the procedure followed by the undersigned. 7.4 Taluka: Shinor; Village: Timbarva A list of documents in respect of a landowner belonging to Village: Timbarva Taluka: Shinor (who forms a part of the list annexed in the memo of petition under Annexure-A) in annexed herewith and marked as "ANNEXURE R-4 (COLLY)." The said documents include the following: (a) Notification published under Section 3 (b) Notice issued to the landowner under Section 3 (c) Objection received against the notice issued (d) Notice issued intimating the landowner of hearing (e) Objections tendered by the landowner at the time of hearing (f) Proceedings Sheet at the time of hearing, which bears the signature of the landowner and Advocate (g) Order passed by the undersigned rejecting the objections (h) Notification published under Section 6 (i) Notice issued under Section 6 to the landowner In the aforementioned case, the undersigned has yet to pass an award under Section 10(1) and Section 10(3) of the Act and hence preemption that the subsequent compliances under Rule 4 and Rule 4A will not be followed, even before that stage has arisen, would in my respectful submission not be a valid ground to file the present petition and question the procedure followed by the undersigned. In such circumstances referred to above, Mr. Bhatt prays that there being no merit in this writ-application, the same be rejected." 7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the writ-applicant is entitled to any of the reliefs prayed for in this writ-application. 8. It goes without saying that a farmer whose land is being utilized for the purpose of laying the underground pipelines is entitled to demand one copy of the panchnama and is also entitled to a copy of the award that may be passed by the competent authority. It is the stance of the respondents that both the documents are always being provided to the concerned farmers. Whether the two documents have been actually provided to the farmers or not, would be a highly disputed question of fact. In such circumstances, we are at one with Mr. Bhatt on the point of maintainability of this writ application at the instance of the Society. Whether the two documents have been actually provided to the farmers or not, would be a highly disputed question of fact. In such circumstances, we are at one with Mr. Bhatt on the point of maintainability of this writ application at the instance of the Society. If any individual farmer has any grievance to redress with regard to non- compliance of the statutory provisions of the Act, 1962, then such farmer can take up the issue with the authority concerned or may even prefer an independent writ-application before this Court with the necessary materials on record. An omnibus statement like the one made in the writ petition on hand that the copies of the panchnama and the awards are not being provided to the farmers is not sufficient. 9. With the above observations, this writ-application is disposed of. Notice is discharged.