N V V KRISHNA Vs. UNION OF INDIA

JUDGEMENT

(1.) While the constitutional validity of the Petroleum and Minerals Pipelines (Acquisition of right of User in land) Act, 1962 (for brevity "the Act") is under challenge in W.P.No.41887 of 2002, the proceedings initiated for acquisition of right of user in the land under the said Act are assailed in the other writ petitions, viz., W.P.Nos.21449, 21450 of 2000, 583, 843 to 845, 1191, 3344, 1032, 1033, 958 and 959 of 2001. While the constitutional validity of the Petroleum and Minerals Pipelines (Acquisition of right of User in land) Act, 1962 (for brevity "the Act") is under challenge in W.P.No.41887 of 2002, the proceedings initiated for acquisition of right of user in the land under the said Act are assailed in the other writ petitions, viz., W.P.Nos.21449, 21450 of 2000, 583, 843 to 845, 1191, 3344, 1032, 1033, 958 and 959 of 2001. 2.1. Challenge is made to the Act on the following grounds: (I) the provisions of the Act violate the second proviso to Article 3 1-A read with Article 300A of the Constitution of India; (II) while the Act empowers the competent authority to acquire the right of user in the land, under which pipelines may be laid and issue a notification for such acquisition declaring the intention to acquire the right of user in the land by exercising the power conferred under Section 3(1) of the Act, there is no specific provision empowering the authorities to acquire the trees attached to the lands and in the absence of such power, the respondents have no authority either to acquire or remove the trees; nor to prevent further plantation of the trees, as it would otherwise be contrary to the object of the legislation, viz., that the Act is intended to permit the owner or occupier of the land to use the land for the purpose for which such land was put to use immediately before the date of the notification under Section 3(1) of the Act. In other words, in the absence of any provision for acquisition of the trees, the authority given under Section 4 of the Act to cut down and clear away any part of any standing crop, fence or jungle, is arbitrary, unreasonable, discriminatory and violative of Articles 14, 19(1)(g), second proviso to 31A and 300A of the Constitution of India; (III) while Section 9(1) of the Act permits the owner or occupier of the land in question to use the land for the purpose for which the said land was put to use immediately before the date of notification for acquisition under Section 3(1) of the Act, the restriction imposed on the owner or occupier of the land under proviso to Section 9(1) of the Act, namely that the owner or occupier shall not (i) construct any building or any other structure; (ii) construct or excavate any link, well, reservoir or dam; or (iii) plant any tree, is arbitrary, discriminatory and violative of Articles 14 and 19(1)(g) of the Constitution of India; (IV) Even though Section 10 of the Act provides for awarding compensation, there is no specific provision thereunder for providing compensation for the trees that are cut down or removed while acquiring the right of user in the land by invoking the powers conferred under Sections 3(1) and 4 of the Act, referred to above. In the absence of any such specific provision for providing compensation for the trees, the very legislation, more particularly Section 10 of the Act is violative to the second proviso to Article 31A read with Article 300A of the Constitution of India; and (V) in view of the acquisition of the right of user in land under the provisions of the Act, the owner or occupier is entitled for compensation determined by the competent authority as provided under Section 10 of the Act and that too within a reasonable time. While the scheme of the Act specifically provides time of limitation for all other purposes, no such reasonable time is prescribed under Section 10 of the Act, and therefore, the Act is liable to held arbitrary, unreasonable and violative of Article 14 of the Constitution of India. 2.2. Apart from the above contentions challenging the constitutional validity of the Act, it is also argued by the learned counsel for the petitioners that: (i) the acquisition proceedings initiated by the respondents under the provisions of the Act are illegal, arbitrary and violative of the principles of natural justice as the respondents have not conducted any further enquiry after receipt of the objections from the petitioners, even though the same is provided under Section 5(2) of the Act; (ii) the impugned acquisition proceedings acquiring the right of user in the land is arbitrary and unreasonable as the same is circuitous, and the respondents failed to take note that if the pipelines are installed through Survey No.394 in Koppur Village, a forest area, it could have caused a lesser expense; (iii) in view of the impugned acquisition of the right of the user in land, the properties of the petitioners, namely mango orchard was divided into two halves and the petitioners are therefore, prevented from raising further plantation in the area in question, apart from incurring unnecessary expenses for double fencing; and (iv)the impugned acquisition proceedings initiated by the respondents is mala fide as the same is intended to favour the third respondent in W.P.Nos.583, 843 to 845, 1191, 3344, 1032, 1033, 958 and 959/2001, and 41887/2002, who is closely related to an I.A.S. Officer and therefore, the same is liable to be struck down. 3.1. Mr.V.T.Gopalan, learned Additional Solicitor General inviting my attention to the object, intention, as well as the scheme of the Act, submits that: (i) the Act is not intended to acquire any land, much less any trees thereon, inasmuch as, what was sought to be acquired under the provisions of the Act is only the right of the user of the land, but not the land or the trees thereon; (ii) once such an intention is declared under a notification issued under section 3(1) of the Act, the competent authority is empowered to enter upon, survey and take levels of any land specified in the notification and to proceed further, as provided under Section 4 of the Act; (iii) on receipt of the objection in writing to the notification declaring the acquisition of right of user in the land, the competent authority shall provide an opportunity of being heard as provided under Section 5(2) of the Act; and thereafter, the authority shall pass an order either allowing or disallowing the objections and therefore, holding a further enquiry, is purely a discretion conferred on the competent authority; (iv) as per Section 6 of the Act, immediately on publication of the declaration of the acquisition of the right of user in the land, such right of the user in the land shall vest absolutely with the Government; (v) the power conferred under Section 8 of the Act to reenter into the land for inspection, and the restriction imposed on the owner or occupier of the land regarding the use of the land under Section 9 of the Act, are intended only for proper maintenance, examination, repair, alteration or removal of pipelines, which is necessary for proper and effective utilisation of the pipelines; and (vi) Section 10 of the Act not only provides for compensation for the right of user in the land, but also provides for damages, loss and injury, which includes the removal of trees as evident from Section 10 (3) of the Act. That apart, it was pointed out that an additional compensation is provided under Section 10(4) of the Act to the owner or any other person whose right of enjoyment in that land has been affected, calculating the same at the rate of 10% of the market value of that land and therefore, the loss incurred due to the restrictions imposed under Section 9 of the Act, viz., the owner or occupier of the land shall not plant any trees, which according to the petitioner offends the right of the owner of the land in using the same for the purpose of which the land was put to use immediately before the acquisition proceedings, is duly taken care of, and hence, the contention of the petitioners that the provisions of the Act ultra vires the second proviso to Article 31-A and 300A of the Constitution of India is untenable in law. 3.2. Mr.V.T.Gopalan, the learned Additional Solicitor General contends that the absence of any provision fixing the time limit for passing the order of compensation shall not be a ground to test the validity of the Act, as any unreasonable delay in passing an order for compensation for the acquisition of the right of user in the land may be a good and sufficient reason either to seek a writ of Mandamus directing the respondents to pay the compensation or to challenge such arbitrary and unreasonable delay in passing the order for compensation. 3.3. Apropos the allegation made on behalf of the individual owners challenging the impugned acquisition proceedings for want of provision prescribing the time limit for passing an order of compensation under Section 10 of the Act, Mr.V.T.Gopalan, learned Additional Solicitor General, contends that the same is purely imaginary, as the delay in passing the order of compensation does not arise in the instant case, and assuming there is any delay, the petitioners are responsible for the same. 3.4. Argued that there is only one notification intending to acquire the right of user in the land and no other proposal as complained by the petitioners; and that, , as Survey No.394 in Koppur Village, falls within the forest area, the Government is bound to avoid such acquisition, as far as possible. In any event, it is for the State to choose the land for the purpose of laying pipelines for transporting petroleum products without affecting the forest area and therefore, there is no arbitrary or unreasonable exercise of power in this regard.

(2.) I have given careful consideration to the centrifugal and centripetal contentions made on behalf of both sides.

(3.) The issues that arise for my consideration are: (i) whether the Petroleum and Minerals Pipelines (Acquisition of right of User in land) Act, 1962 is ultra vires the second proviso to Article 31A read with Article 300A of the Constitution of India? and (ii) whether the impugned acquisition of right of the user in the land is illegal, arbitrary, violative of Articles 14 and 19(1)(g) of the Constitution of India, and contrary to the principles of natural justice?