Partly allowed

Hiteshwar Sarma v. Gail (India) Ltd. and 3 Ors.

Gauhati HC7 Feb 2022WP(C)/3784/2020

Case brief

AI extract

What is this about?

Petitioner challenged acquisition proceedings under the Petroleum Pipelines Act, alleging failure to serve statutory notice under Section 3 and Rules 3/8, vitiating the hearing right under Section 5. The Court quashed the Section 6 declaration for the petitioner but directed deemed service of notice and adjourned to allow filing of objections within 21 days for a compliant hearing.

What did the court decide?

Declaration under Section 6 and notice under Section 6(1) set aside for the petitioner. Notice deemed served; liberty granted to file objections within 21 days; hearing to be completed within 30 days.

Hiteshwar Sarma Vs Gail (India) Ltd. and 3 Ors. — Land Acquisition | Gauhati HC (2022)

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Page No.# 1/13

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GAHC010130652020

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/3784/2020

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HITESHWAR SARMA

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S/O LATE DHANESWAR SARMA, RESIDENT OF VILLAGE RADHAKUCHI KAMALPUR, PO KARORA, BO DISTRICT KAMRUP ASSAM

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VERSUS

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GAIL (INDIA) LTD. AND 3 ORS. A GOVT. OF INDIA UNDERTAKING A MAHARATNA COMPANY, REPRESENTED BY ITS COMPETENT AUTHORITY REPRESENTED BY ITS CHAIRMAN, HAVING ITS REGISTERED OFFICE AT GAIL BHAWAN, 16 BHIKAIJI CAMA PLACE, NEW DELHI 110066

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2:THE DEPUTY GENERAL MANAGER (CONSTRUCTION) GAIL(INDIA) LTD BGPL GUWAHATI 5TH FLOOR MEGHA PLAZA BASISTHA CHARIALI GUWAHATI 781029

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3:THE COMPETENT AUTHORITY (ASSAM) FOR BGPL PROJECT 5TH FLOOR MEGHA PLAZA BASISTHA CHARIALI GUWAHATI 781029

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4:THE DEPUTY COMMISSIONER KAMRUP ASSA

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Advocate for the Petitioner : MR. S BORTHAKUR

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Advocate for the Respondent : Mr. S. Jain, Additional Solicitor General

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Mr. D. S. Deka, Adv. Mr. A. Das, Adv. (R.1 & 2)

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Mr. A. Sarma, Adv. (R.1 & 2) Mr. S. Mitra, Adv. (R.3) Ms. S. Sarma, Adv. (R. 4)

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Page No.# 2/13

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Date of Hearing & Judgment : 07/02/2022

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT & ORDER (ORAL)

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Heard Mr. S. Borthakur, learned counsel appearing on behalf of the petitioner. Also heard Mr. S. Jain, learned Additional Solicitor General assisted by Mr. D. S. Deka, Advocate along with Mr. A. Das, learned Senior Counsel assisted by Mr. A. Sarma, Advocate appearing on behalf of Respondent Nos. 1 & 2, Mr. S. Mitra, learned counsel appearing on behalf of respondent no.3 and Ms. S. Sarma, leaned counsel appearing on behalf of respondent no.4.

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This writ petition has been filed challenging the actions of the Respondents Nos. 1, 2 & 3 in taking up the acquisition proceedings under the provisions of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (for short ‘the Act of 1962’) on the ground that the concerned respondent authorities have initiated the said acquisition proceedings by not following the provisions of Section 3 of the said Act of 1962 read with Rule 3 and Rule 8 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Rules, 1963 and the issuance of the notification containing the declaration under Section 6 of the said Act of 1962 is without authority and jurisdiction for noncompliance with the provisions of Section 3 of the said Act of 1962 as well as failure to afford the opportunity of hearing as provided in Section 5 of the Act of 1962.

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Page No.# 3/13

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It is the case of the petitioner that the petitioner is admittedly the owner of a plot of land admeasuring 2 kathas 10 lechas covered by Dag no. 255 Patta No. 17 of Village Radhakuchi under Kamalpur Revenue Circle, District Kamrup, Assam and the Petitioner’s name has been duly recorded in the record of rights as could be seen from Annexure-A, which is jamabandi of the surveyed Village.

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The petitioner on 01.07.2020 received a communication dated 20.06.2020 from the Deputy General Manager, Construction of the Respondent No.1, wherein the Petitioner was informed that a notice under Section 3 (1) was issued to the petitioner and the hearing was conducted by the competent authority and in pursuance to that another notification under Section 6(1) of the Act of 1962 was also issued and under such circumstances, the petitioner was directed not to carry out any illegal construction in the said land. The petitioner was also asked to remove the illegal construction failing which the Respondent No.1 shall take actions in terms with the provision of the Act of 1962. The petitioner upon receipt of the said notice replied to the said Deputy General Manager Construction of the Respondent No.1 vide a communication dated 03.07.2020 stating inter-alia that the petitioner had not received any notice under Section 3 (1). It was also mentioned in the paragraph 6 of the said communication that the petitioner had started construction of his land boundaries 10 years ago approximately and he has not constructed any illegal structure over his land and accordingly, denied the allegations made in communication dated 20.06.2020. Relevant to mention herein that the petitioner admitted receipt of the communication

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Page No.# 4/13

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dated 20.06.2020 on 01.07.2020.

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In spite of the said reply, as the respondent authorities have initiated the action under the provisions of Act 1962, the petitioner have challenged notice dated 25.01.2019 issued under Section 3(1) of the Act of 1962 as well as the notice dated 04.07.2019 under Section 6(1) of the Act of 1962 as well as the letter dated 20.06.2020 issued by the Deputy General Manager, (Construction) of the Respondent No. 1 and for further directions that the respondent authorities should not go ahead with the acquisition of the petitioner’s land without following the due process; to refer the dispute before the competent authority to settle it as per the provisions of law; to allow the petitioner to continue the remaining construction work of his residential house and to adequately compensate the petitioner under the provisions of law.

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The respondent nos. 1, 2 & 3 jointly filed an affidavit-inopposition wherein in paragraph no. 7, it was mentioned that as per the land records there were 18 recorded land holders in Dag No. 255. The assistance of the concerned Goanbora was sought for distribution of the notices under the Section 3(1) of the Act of 1962, and whenever, the land owners were not found to the traceable, the undelivered notices were handed over to the Circle Officer for further distribution to the land owners. It was also mentioned that in the case of the land owners of Dag No. 255 of Patta No. 17 of village Radhakuchi under Mouza Karara which included the petitioner, notices under Section 3(1) of the Act had been issued in favour of the all recorded land owners. The Gaonbora of the concerned village have certified that he had served the notice issued

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Page No.# 5/13

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under Section 3(1) upon petitioner. It was also mentioned that similar notices under Section 6(1) of the Act were also issued in favour of the all land owners of Dag no. 255 but the petitioner or his family members have refused to accept the same. Further to that, in paragraph 10 of the affidavit-in-opposition, it has also been mentioned in the affidavit-inopposition that the laying of pipelines for transportation of the natural gas through Barauni Guwahati pipe line in the State of Assam is a project of public importance, and as such, the competent authority have taken into account the said aspect of the matter in issuance of the declaration under Section 6(1) of the Act.

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Be that as it may, the question which arises out here as to whether the petitioner was served a notice in terms of the Section 3(1) of the Act of 1962 in as much as failure to serve such notice effects the petitioner’s rights to a hearing as contemplated under Section 5 of the Act of 1962. It is relevant at this stage to take note of the provisions of Section 3 which for the sake of convenience is quoted herein below:

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“ Section 3. Publication of notification for acquisition

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(1) Whenever it appears to the Central Government that it is necessary in the public interest that for the transport of petroleum (or any mineral) from one locality to another locality pipelines may be laid by that Government or by any State Government or a corporation and that for the purpose of laying such pipelines it is necessary to acquire the right of user in any land under which such pipelines may be laid, it may, by notification in the Official Gazette, declare its intention to acquire the right of user therein.

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(2) Every notification under sub-section (1) shall give a brief description of the land.

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Page No.# 6/13

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(3) The competent authority shall cause the substance of the notification to be published at such places and in such manner as may be prescribed.”

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Sub-Section (3) of Section 3 stipulates that the competent authority shall cause the substance of the notification to be published at such places, and in such manner as may be prescribed. The prescription in terms with Sub-Section 3 can be found in Rule 3 and Rule 8 of Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1963. The said two Rules for the sake of convenience is quoted herein below:

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“ Rule 3. Publication of Notification under Section 3

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(1)Every notification under sub-section (1) of section 3 shall contain a description of the land sufficient to identify the same specifying, wherever possible, the numbers in a settlement of record or survey of such land.

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(2) The substance of the notification referred to in sub-rule shall be published

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(a) by beat of drum in the neighborhood of the land the right of user in which is to be acquired; and

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(b) by affixing a copy thereof in a conspicuous place in the locality in which such land is situated.

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(3) A Copy of such notification shall be served in the manner laid down in rule 8 on every person who has been shown in the relevant revenue records as the owner of the land on the date of publication of the notification under sub-rule (1) or who, in opinion of the Competent Authority is the owner of or interested in such land.

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Rule 8 Mode of service of notice, etc.

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(1) Any notice or letter issued or nay order passed may be served

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Page No.# 7/13

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by delivering or tending a copy of such notice, letter or order, as the case may be, to the person for whom it is intended or to any adult member of his family or by sending it by registered post acknowledgment due addressed to that person at his usual or last known place of residence or business.

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(2) Where the serving officer delivers or tenders the copy of the notice, letter under sub-rule (1), he shall require the signature of the person to whom the coy is so delivered or tendered to an acknowledgment or service endorsed on the original.

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(3) Where the person or the adult member of the family of such person refuses to sign the acknowledgment of where the serving officer after using all due and reasonable diligence, cannot find such person and there is no adult member of the family of such person, the serving officer shall affix a copy of the notice, letter or order on the outer door or some other conspicuous part of the ordinary residence or usual place of business of such person and then shall return the original to the competent authority who issued the notice, letter or order, as the case may be, with a report endorsed thereon or annexed thereto stating that he has so affixed a copy, the circumstances under which he did so and the name and address of the person, if any, by whom the usual or last known place of residence or business, as the case may be, was identified and in whose presence the copy was affixed.

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(4) Where the person to be served with the notice, letter or order is a minor or a person of unsound mind the notice, letter or order shall be served in the aforesaid manner, on the guardian of such minor or person of unsound mind, as the case may be.

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A perusal of Sub Rule (3) of Rule 3 stipulates that a copy of the notification shall be served in the manner laid down in Rule 8 on every person who has been shown in the relevant revenue records as the owner of land on the date of publication under Sub Rule (1) or who in the opinion of the competent authority is the owner or interested in such land. A perusal of Rule 8 stipulates the mode of service of notice stating

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Page No.# 8/13

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inter-alia, that any notice or letter issued or any order passed may be served by delivering or tendering a copy of such notice, letter or order as the case may be, to the person for whom, it is intended or to any adult member of his family or by sending it by registered post acknowledgement due addressed to that person at his usual or the last known place of residence or business. It has also mentioned that where the serving officer delivers or tenders the copy of the notice, letter or order under Sub Rule (1) of Rule 8 he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement or services endorsed on the original. Sub Rule (3) of Rule 8 is in respect when the person or the adult member of the family refuses to sign the acknowledgment or when the person cannot be found and there is no adult member of his family also not found. Sub Rule (4) of Rule 8 is in respect to service of notice upon person with unsound mind.

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In other words, the service in terms with Rule 8 has to be meted out to the person for whom the notice or the order is intended to be issued and in his absence any adult member of the family or by way of Registered Post acknowledgment due addressed to the person at his usual or the last known place of residence or business. It is also the requirement that Serving Officer whenever he delivers or tenders the copy of the notice or letter, the signature of the said person to whom the copy is so delivered or tendered and acknowledgement has to be taken. The manner of service when refused and/or when the person is not found as stipulated in sub Rule (3) is also relevant for the purpose of the instant case.

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Page No.# 9/13

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In the instant case, it would apparent from the statements made in the affidavit-in-opposition that the Gaonbora of the concerned village had taken the initiative to serve the copies of the notice to the various pattadars, including the petitioner. There is no document on record to show that the petitioner had signed on the said notices under Section 3(1). In fact, a perusal of Annexure 5 series and Annexure 6 of the affidavit-in-opposition filed by the Respondents would clearly show the said aspect of the matter. While a perusal of Annexure 5 series, it would show that on the reverse page of the notices under Section 3 (1) of the Act of 1962, there are acknowledgment receipt signatures whereas Annexure 6 which is the notice to the petitioner, there is no acknowledgment. This cannot be said to be a compliance to Section 3(3) of the Act of 1962 read with Rule 3 and 8 of the Rules framed thereunder.

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At this stage it may be relevant to take note of the provision of the Act of 1962. On the basis of the notification issued under Section 6 of the Act of 1962, there are certain restrictions imposed upon the owner by virtue of Section 6 (2) and 9 of the Act of 1962. It further appears from perusal of Section 10 (3) of the Act of 1962 that the compensation is to be determined. It shows by virtue of the acquisition of the right of user, the person interested would be effected by removal of his tree or standing crops, the temporary severance of land under which the pipeline would be laid and also injury that may be caused to any other property both movable or immovable or the earnings of such person(s). The only remedy available to the person aggrieved/interested in respect to the

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Page No.# 10/13

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land is to object to such acquisition at the stage of section 5 of the Act of 1962. This is a valuable right and this right cannot be taken away by not complying to the mandate of Section 3 of the Act read with Rule 3 and 8 of the Rules framed thereudner.

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Further to the above, it also appear from a perusal of Section 3 (3) of the Act of 1962 that the competent authority shall cause the substance of the Notification to be published at such places and in such manner as may be prescribed. As already dealt with hereinabove the prescription is given in Rule 3 read with Rule 8 of the Rules framed under the Act of 1962. Now if this Court takes into consideration Section 5 of the Act of 1962 and more particularly the Sub Section(2) of Section 5, it is para materia Section 5 A (2) of the Land Acquisition Act, 1894 which provide that the person effected has to be given an opportunity of hearing. Though the Act of 1962 and the Land Acquisition Act, 1894 are different in as much the Act of 1962 relates to the absolute right of user vesting upon the Central Government by virtue of Section 6 (2) of the Act of 1962 whereas the Act of 1894 pertains to vesting the absolute right over the land upon the Government but as stated hereinabove the taking over the right to use and the effect thereof as could be seen from a perusal of Section 6 (2) and 9 of the Act of 1962, it would be apparent that civil consequences results upon the person interested and this is due to the doctrine of eminent domain and as such the only safeguard provided is Section 5 of the Act of 1962 which is the valuable right to object to such acquisition. At this stage it would be relevant to take note of the judgment of the Supreme Court in the case of Kamal Trading Private Limited Vs. The State of West Bengal & Ors reported in

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Page No.# 11/13

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(2012) 2 SCC 25 and more particularly paragraphs 13, 14 & 16 is quoted herein below:

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“13. Section 5A(1) of the LA Act gives a right to any person interested in any land which has been notified under Section 4(1) as being needed or likely to be needed for a public purpose to raise objections to the acquisition of the said land. Sub-section (2) of Section 5A requires the Collector to give the objector an opportunity of being heard in person or by any person authorized by him in this behalf. After hearing the objections, the Collector can, if he thinks it necessary, make further inquiry. Thereafter, he has to make a report to the appropriate Government containing his recommendations on the objections together with the record of the proceedings held by him for the decision of the appropriate Government and the decision of the appropriate Government on the objections shall be final.

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It must be borne in mind that the proceedings under the LA Act are based on the principle of eminent domain and Section 5A is the only protection available to a person whose lands are sought to be acquired. It is a minimal safeguard afforded to him by law to protect himself from arbitrary acquisition by pointing out to the concerned authority, inter alia, that the important ingredient namely 'public purpose' is absent in the proposed acquisition or the acquisition is mala fide. The LA Act being an ex-proprietary legislation, its provisions will have to be strictly construed.

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Sub-section (3) of Section 6 of the LA Act makes a declaration under Section 6 conclusive evidence that the land is needed for a public purpose. Formation of opinion by the appropriate Government as regards the public purpose must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. It is, therefore, that the hearing contemplated under Section 5A and the report made by the Land Acquisition Officer and his recommendations assume importance. It is implicit in this provision that before making declaration under Section 6 of the LA Act, the State Government must have the benefit of a report containing recommendations of the Collector submitted under Section 5A(2) of the LA Act. The recommendations must indicate objective application of mind.”

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In view of the above taking into consideration the facts and the law as stated hereinabove, this Court is of the opinion that as the petitioner’s valuable right under Section 5 of the Act of 1962 had been taken away

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Page No.# 12/13

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without due process; consequently the declaration under Section 6 of the Act of 1962 made in respect to the petitioner’s land is liable to be interfered with and as such the declaration under Section 6 of the Act of the 1962 made in so far as the land of the petitioner, the detail of which of which is given in paragraph 3 hereinabove, is set aside and quashed. Similarly, the Notice dated 04.07.2019 under Section 6 (1) of the Act of 1962 to the petitioner is also set aside and quashed.

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It would appear from the records and from a perusal of the writ petition itself that the petitioner has notice of the said acquisition proceedings on the date on which he received the communication dated 20.06.2020 which he claims to have received on 01.07.2020. It further appears that in paragraph 6 of his reply dated 03.07.2020 he had stated that he had made constructions 10 years before and he have not constructed any illegal structure over his land.

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Under such circumstances, taking into consideration that this is the project initiated by the respondent nos. 1 & 2 of public importance and the delay in respect to execution of the said project would harm the national interest, this Court is of the opinion and for the end of justice and also taking into consideration the rights of the petitioner that as the petitioner as of now has notice of the Notice No. 506 under Section 3(1) of the Act of 1962, (Annexure-6 to the Affidavit-in-Opposition, Page 87) the petitioner would be deemed to have been served the said notice under section 3(1) as on today with the liberty to the petitioner to file objections within a period of 21 days from today, so that a hearing can be done, subject to the petitioner filing any objections in terms with

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Page No.# 13/13

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Section 5 of the Act of the 1962. It is made clear that if the petitioner files objection in terms of Section 5 (1) of the Act of 1962 within 21 days from today, he shall be given an opportunity of hearing in the manner provided under Section 5 (2) of the Act of 1962. Taking into consideration that there is urgency in the matter and the public importance to the project, the said hearing under Section 5 (2) of the Act of 1962 be completed within 30 days from the date of filing objection by the petitioner. Thereupon, after hearing the petitioner, the respondent authorities shall be at liberty to proceed in terms with the provisions of the Act of 1962.

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The above direction is being passed taking into account the peculiar facts and circumstances of the case and the instant order shall not affect the other acquisitions carried out in respect to Dag No. 255 of Patta No. 17 of Village Radhakuchi, Kamrup made by the Respondent Authorities under the Act of 1962. As the petitioner had notice of the acquisition proceedings w.e.f. 01.07.2020, the petitioner shall not claim any equity on any construction made pursuant thereto.

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With the above observation, the petition stands disposed of. No Costs.

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Comparing Assistant

Hiteshwar Sarma v. Gail (India) Ltd. and 3 Ors.

Case brief

What is this about?

What did the court decide?

Hiteshwar Sarma v. Gail (India) Ltd. and 3 Ors.

Case brief

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