Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 284 (UTT)

Gail (India) Limited v. State of Uttarakhand

2022-09-05

SHARAD KUMAR SHARMA

body2022
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. The subject “acquisition” of a land for public purposes, falls for consideration under schedule 7 of the Constitution of India. It is rather a subject which exclusively vests with the powers, to the acquiring body, which in the instant case happens to be the Government of India, for the purposes of enforcement of the project with which we are related to i.e. laying of gas pipeline project i.e. Karanpur, Muradabad, Kashipur, Rudrapur Gas Pipeline Project. In order to govern and regulate the acquisition proceedings, in relation to the aforesaid projects, the Government of India, vide its gazette notification of 07.12.1962 had notified an Act called as the “Petroleum and Minerals Pipelines” (Acquisition of Rights of User in Land) Act of 1962. The Act in itself provides a right of acquisition, or the use of the land for the purposes of laying down pipelines for the transportation of petroleum and mineral projects and matters connected thereto. There are various processes which has been provided therein, that in an event of acquisition of property for laying down the projects covered under the Act of 1962, the process of entering into a land and its acquisition is contained under Section 4, 5 and henceforth. As a consequence of the aforesaid project, and apparently as per the records too, a notification was issued for the purpose of utilization of the land, which was allegedly contended by respondent, that it was under a joint holding which stood recorded in the revenue records alongwith the respondent no. 3, herein and since after completion of the acquisition proceedings resulting into the disbursement of compensation, as per the provisions contained under Section 10 of the Act, the respondent no. 2, claimed her rights of being paid with the proportionate compensation, qua respondent no. 3. 2. The respondent no. 2 has contended, that since she being a co-tenure holder was also entitled to have her share of compensation determined by the respondents. Hence, she alleges malice on part of the respondent in their act of disbursement of the compensation exclusively to respondent no. 3, which is alleged to be in collusion with the officials of Gail India Limited, as undertaking of Government of India. The facts which are apparent from records is that the notification under Section 6 of the Act, was issued on 14.07.2011. 3, which is alleged to be in collusion with the officials of Gail India Limited, as undertaking of Government of India. The facts which are apparent from records is that the notification under Section 6 of the Act, was issued on 14.07.2011. As a consequence thereto, it goes without saying, that when it is notified and that too by way of a publication which was made under section 6 of the Act of 1962, its knowledge would be deemed to be attributed to the public at large, which would be inclusive of respondent no. 2 also. 3. The proceedings under section 10 of the Act, for the purposes of determination of compensation, was held and accordingly the compensation was disbursed as back as on 31.10.2010. The applicant respondent no. 2, to an application which was filed under Section 156(3) of Cr.P.C. Smt. Poonam Mehra vs. Rajveer Singh and Others, which was registered as Miscellaneous Application No. 281 of 2019 on 24.09.2019 before the Court of Judicial Magistrate, Bajpur, District Udham Singh Nagar, it was on the ground that there was a collusion between the authorities of the applicant herein and the Mr. Rajveer Singh, one of the co-sharers and its with their collusion, that the entire compensation has been made to be disbursed to one of the co-sharers i.e. responding no. 3 herein. Hence, an application of 24.09.2017, was instituted for drawing a criminal proceedings, as against the opposite parties mentioned therein which according to the respondent caveator, who opposes the present 482-application were the officials of the present applicant, who were impleaded therein by name. 4. On perusal of the application under section 156 (3), where the allegations has been raised for the purposes of drawing of criminal proceedings under subsection (3) of Section 156 of Cr.P.C. The choice of selection of parties to the proceedings, was exercised by the caveator by impleading the individual officers of the present applicant, but, without impleading the principal acquiring body for whose benefit the land has been acquired. 5. 5. In that eventuality, in an event of allowing of an application, by the impugned revisional court’s order, after its rejection by the trial court, the caveator cannot be permitted to take a stand that the present applicant will have no legal right to be enforced under Section 482 of the Code of Criminal Procedure, while giving a challenge to the revisional court’s judgment dated 30.05.2022, whereby the application which was preferred by respondent no. 2 under Section 156(3) of Cr.P.C. was allowed directing thereof to register the criminal proceedings. The principal objection is that 482-application, would not be maintainable at the behest of present applicant because the applicant, herein to the application under Section 156(3) Cr.P.C. is not enforcing any criminal liability which is tried to be fastened upon them on the basis of the application of the caveator which was filed under section 156 (3). Rather it is contended, that it was an individual act, which was sought to be put to prosecution by filing of an application under Section 156(3) of Cr.P.C. 6. The Honorable Apex Court and other High Courts, had taken a consistent view right with effect from the judgment as rendered in the judgment of Full Bench of Patna High Court reported in Upendra Bakshi and Others vs. State of U.P. and Others, AIR 1987 SC 191 , U.P. Avas Evam Vikas Parishad vs. Gyan Devi, AIR 1995 SC 724 and Sunder vs. Union of India, (2001) 7 SCC 211 in the judgment as rendered by the Honorable Apex Court reported in U.P. Avas Evam Vikas Parishad vs. Gyan Devi, (1995) 2 SCC 326 where the Constitution Bench, in the matter of Gyan Devi, had specifically laid down that the beneficiary for whom the land is acquired has had to be a made as a necessary party to the proceedings, where a issue arises or is involved into allegations of malice or wrongful determination of compensation because ultimately, if on a culmination of any proceedings either on a civil or on criminal side, it will be ultimately the principle acquiring body, which will be affected. So far as Section 156(3) is concerned, where the action is proposed to be drawn as against the individual officers of the present applicant, it is being argued by the learned counsel for the applicant, that the entire issue is nothing but a judicial via-media, which has been adopted by the complainant respondent no. 2 herein, in order to eradicate the legal embargoes created in the processes of determination of compensation which is contemplated under Section 10 and section 11 of the Act of 1962 and particularly when the reference if sought at a belated stage itself would be barred by limitation. 7. It has been further argued by learned counsel for the applicant that invocation of Section 156(3) as against the individual officers of the applicant, according to the choice of the caveator, would be in apparent contravention to the basic spirit and purpose of the principle acquiring body, provided under Section 13 of the Act, where any action which has been protected to be taken against the officers of the applicant for any act done in good faith it cannot be questioned or be put to prosecution in any suit or legal proceedings. Section 13 is extracted hereunder: “13. Protection of action taken in good faith: (1) No suit, proceeding or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or notification made or issued thereunder. (2) No suit or other legal proceeding shall lie against the Central Government, the competent authority or any State Government, or corporation for any damage, loss or injury caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of this Act or any rule or notification made or issued thereunder.” 8. The necessity as per the opinion of this Court for the applicant to file the present 482- application, would be that irrespective of the fact as to what consequences the individual proceedings, against the individual officers would lead to, but ultimately in the analysis which has been called upon to be made of determination of a liability for an act which has been done by the officer, which is alleged to have been contravened, as per the caveator is that it is not in good faith rather in collusion with the co-sharer respondent no. 3 herein. It would be altogether a different aspect for fixation of an individual liability. 9. But, the ultimate consequence would be that in an event if the caveator succeeds in the proceedings which has been drawn as against the individual officer, the ultimate liability is bound to be fastened upon the applicant, hence in the light of the constitution bench judgment of Gyan Devi, referred to hereinabove. In that eventuality, this Court is of the view, that if the provisions contained under section 10, 11 and 13 of the Act of 1962, are read with a harmonious construction, its rather the responsibility which is statutorily casted upon the applicant to protect its officers, who have taken an action in good faith, but, so far the establishment of an aspect of “good faith” is concerned, though, it will be obviously subject to any proceedings which would be drawn against the officer, whom the caveator alleges have colluded with the officers of the authority, but, the entitlement of the applicant to initiate a proceeding under section 482 by putting a challenge to an order of revisional court permitting the registration of a criminal proceedings against the officers named therein. Its ultimate determination will have a direct bearing on the present applicant, if at all it is established to the contrary. 10. Its ultimate determination will have a direct bearing on the present applicant, if at all it is established to the contrary. 10. But, still then to their right and duty, which the applicant has to perform under section 13 of the Act, in order to protect the interest of its officials, who were working in good faith, the aspect of “good faith” could only be appropriately determined, if any even by the criminal courts it could be only after permitting the principal acquiring body to participate in the proceedings, as already observed by this Court earlier, that this Court does not visualizes any logic at the hand of the caveator, as to why they have not impleaded the principle acquiring body, as a party who is likely to be affected on a determination of a liability, which otherwise was alleged to be required to be determined under section 10, they become a necessary party, even if any prosecution is to be drawn against the officials of the respondent because they would be ultimate sufferer. The learned counsel for the respondent for the purposes of tenability of 482-application has made reference to a judgment as reported in Harsh Mander vs. Amit Anil Chandra Shah and Others, (2017) 13 SCC 420 wherein, the learned counsel for the caveator has particularly made reference to paragraph 29, 36, 37 and 41, which is extracted herein: 29. In the instant case, the applicant has invoked the power under Section 482 of Cr.P.C. to challenge the order of discharge dated 30.12.2014 whereby the learned Sessions Judge Gr. Bombay has discharged the respondent no. 1 of the offences under Sections 120- B, 364, 365, 368, 341, 342, 384, 302, 218 r/w 201of IPC. It is not in dispute that the said order is not an interlocutory order and could be challenged by invoking the revisional jurisdiction of the High Court under Section 397/401 of Cr.P.C. Hence, in the light of the law laid down by a three Judge Bench of the Apex Court in the case of Madhu Limaye and which has been followed in Gian Singh and Mohit (supra), the powers under Section 482 cannot be resorted to in view of the said specific provision of the code for the redressal of the grievance particularly when the aggrieved party had already assailed the said order in revisional jurisdiction of this Court. 36. 36. The present case does not involve the issue of locus standi of a third party/stranger for setting the criminal law in motion The issue in the present case is whether the applicant, who is a total stranger to the proceedings can invoke the powers under Section 482 of Cr.P.C. to challenge the discharge order. Hence, the decisions in Antulay is not strictly applicable to the facts of the present case. 37. The observations in Sheonandan Paswan on the question of locus standi were restricted to the interpretation and scope of Section 321 of Cr.P.C. The judgment does not lay down that a stranger to the proceeding can invoke the inherent powers of the court under Section 482 of Cr.P.C. for challenging the order of discharge particularly when the order of discharge is revisable. 41. In Sulochana Devi (supra) the Petitioner who was not a party to the proceedings had invoked the powers of the High Court under section 482 of the Cr.P.C. to challenge the order of issuance of proclamation under section 82 of the Code and attachment of the property. Raising the issue of locus standi, preliminary objection was raised to the maintainability of the application at the behest of the Petitioner. The Orissa High Court after considering the scope of section 482 of the Cr.P.C. as well as the decisions of the Apex Court in Madhu Limaye, Simerjeet Singh (supra) and in the case of the Janata Dal vs. H.S. Choudhary and Others, 1993 Cri. L.J. 600 citation held that: “........Even if there are millions questions of law to be deeply gone into and examine in a criminal case registered against specified accused persons, it is for him/them to riase all such questions and challenge the proceedings initiated at appropriate time before the proper forum and not for third parties either individually or under the garb of public interest litigation. ordinarily, the aggrieved party, which is affected by any order has the right to seek redress by questioning the legality, validity or correctness of the order unless such party is a minor and in same person or is suffering from any other disability which law recognizes as sufficient to permit another person e.g. next friend, to move the court in his behalf.” 11. In order to substantiate his argument that 482 application at the behest of the present applicant, who is not a party to the proceedings, would not be tenable, is not acceptable by this Court in the light of the principles of the Hon’ble Apex Court too, for the reason being, that it was exclusively a private dispute, which was the subject matter of consideration, where the subject-matter of controversy was with regards to considering the application of discharge against the accused person which was under consideration in the said case before Hon’ble Apex Court. It was in that context, where it was exclusively a private liability, which was being sought to be nullified by the orders, which was being passed on the discharge application, the Hon’ble Apex Court in that context and the backdrop of the case, had dealt with the exercise of powers under section 482, as to whether at all, a person who is not a party to the proceedings, cannot put a challenge, by challenging an order passed on an application of discharge. This judgment too, will be having altogether a distinct complexion altogether because of the impact of section 13 of the Act, which has been referred to hereinabove and that too when the recourse to section 156(3) by the respondent has been at a much belated stage, after seven years of determination of compensation and that too after the issuance of a gazette notification of acquisition way back on 14.07.2011 and 31.10.2010 respectively, this Court is of a tentative view, that the alternative recourse to criminal proceedings by prosecuting the officials of the applicant, was to override the restrictions which were legally imposed by the Act of 1962 for deciding the issue of apportionment of compensation as amongst the cosharers, which otherwise was barred by law. In that eventuality, this Court is of the view that the revisional court’s order of allowing the application under section 156(3), for directing the registration of a complaint against the officials of the applicant, would very well be an aspect which stands covered under section 13 of the Act of 1962, for the purposes of the present applicant, for the purposes of initiation of a prosecution against its officials. In that eventuality, the argument extended by the caveator at this stage, about the maintainability is not accepted. 12. Admit C-482 application. 13. Respondent no. In that eventuality, the argument extended by the caveator at this stage, about the maintainability is not accepted. 12. Admit C-482 application. 13. Respondent no. 1 is represented by a Government Advocate, Respondent no. 2 is represented by Mr. Vipul Sharma. 14. Let notices be issued to respondent no. 3. The steps will be taken by the applicant within a period of ten days from today. 15. Till next date of listing, the effect and operation of the order dated 30.05.2022, as passed in Criminal Revision No. 451 of 2020, Poonam Mehra vs. Rajveer Singh would be kept in abeyance qua the present applicant and its officials, and it will not affect the initiation of any prosecution as against the Rajveer Singh, respondent no. 3 herein, subject to the condition that there is no other legal embargo. The respondents may file their counter affidavit within three weeks. 16. The revisional court while allowing the revision since has remanded the matter, whether it could be an aspect which could be judicially scrutinsed, under the peculiar facts of this case, would be left to be argued at final stage. 17. List thereafter. 18. Connect this matter along with C-482 No. 1082 of 2020.