Allowed

Gail (India) Ltd. v. Competent Authority

Gujarat HC11 Aug 2015SCA/5801/2013

Case brief

AI extract

What is this about?

Applications to determine compensation for acquisition of pipeline rights of user were held exempt from court fees, whether filed by landowners or the corporation. The Court allowed all petitions and quashed the orders requiring payment of deficit court fees.

What did the court decide?

Orders requiring deficit court fees, including the order rejecting review, quashed and set aside; rule made absolute in all petitions.

Gail (India) Ltd. Vs Competent Authority — Land Acquisition | Gujarat HC (2015)

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C/SCA/12052/2008 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION NO. 12052 of 2008

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With

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SPECIAL CIVIL APPLICATION NO. 2404 of 2013

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With

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SPECIAL CIVIL APPLICATION NO. 4139 of 2013 TO SPECIAL CIVIL APPLICATION NO. 4838 of 2013

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With

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SPECIAL CIVIL APPLICATION NO. 4841 of 2013 TO SPECIAL CIVIL APPLICATION NO. 5340 of 2013

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With

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SPECIAL CIVIL APPLICATION NO. 5342 of 2013 TO SPECIAL CIVIL APPLICATION NO. 5541 of 2013

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With

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SPECIAL CIVIL APPLICATION NO. 5543 of 2013 TO

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SPECIAL CIVIL APPLICATION NO. 5742 of 2013

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With

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SPECIAL CIVIL APPLICATION NO. 5744 of 2013 TO

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SPECIAL CIVIL APPLICATION NO. 6043 of 2013

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Page 1 of 37

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C/SCA/12052/2008 CAV JUDGMENT

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With

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SPECIAL CIVIL APPLICATION NO. 6047 of 2013 TO SPECIAL CIVIL APPLICATION NO. 6146 of 2013

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With

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SPECIAL CIVIL APPLICATION NO. 6167 of 2013 TO

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SPECIAL CIVIL APPLICATION NO. 6266 of 2013

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With

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SPECIAL CIVIL APPLICATION NO. 6269 of 2013 TO

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SPECIAL CIVIL APPLICATION NO. 6624 of 2013

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE PARESH UPADHYAY

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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 or any order made thereunder ?	NO

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C/SCA/12052/2008 CAV JUDGMENT

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RAJ DILAWARSINH CHANDRASINH'S HEIRS MAHENDRASINH & ORS.

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....Petitioners

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Versus

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GAIL (GAS AUTHORITY OF INDIA LTD.) & ORS.

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....Respondents

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Appearance:

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Special Civil Application No.12052 of 2008 :

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MR MIHIR JOSHI, SENIOR ADVOCATE with MR MTM HAKIM, ADVOCATE for the petitioners – Claimants

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MR PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL with MR. P.P. BANAJI AND MR. K.M. ANTANI, ASSISTANT GOVERNMENT PLEADERS for the Respondent State

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MR SHALIN MEHTA, SENIOR ADVOCATE for M/S. TRIVEDI & GUPTA for the Respondent – GAIL

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MR PARTHIV BHATT, ADVOCATE for the Competent Authority

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Special Civil Application No.2404 of 2013 & other cognate petitions :

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MR SHALIN MEHTA, SENIOR ADVOCATE with MR VISHWAS K. SHAH, ADVOCATE for the Petitioner – GAIL

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MR PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL with MR. P.P. BANAJI AND MR. K.M. ANTANI, ASSISTANT GOVERNMENT PLEADERS for the Respondent State

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MR MIHIR JOSHI, SENIOR ADVOCATE with

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C/SCA/12052/2008 CAV JUDGMENT

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MR MTM HAKIM, ADVOCATE for the Respondents – Claimants

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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY

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Date : 11/08/2015

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CAV JUDGMENT

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Challenge in this group of petitions is made to the orders passed by the District Judges, Bharuch and Dahod (the details of which are given herebelow in paras: 3.7 to 3.10 ) under the Gujarat Court Fees Act, 2004, allowing the references made by the Inspecting Officers under the said Act, and thereby calling upon the applicants before it (the District Courts) to pay ad valorem court fee as prescribed under Article 7 of Schedule-I of the said Act. The applications on which the said deficit court fee is directed to be paid, are under the provisions of Section 10 of 'the Petroleum and Minerals Pipeline Act, 1962' ( for short, 'the PMP Act, 1962' ) read with Rule 5 of 'the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Rules, 1963' ( for short, ' the 1963 Rules' ).

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The point for consideration before this Court is, as to whether the State Government is empowered to charge any fee, under the Gujarat Court Fees Act, 2004, on an application, that may be filed by any party to the District Judge, invoking Section 10 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 read with Rule 5 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Rules, 1963, and if that is so, at what rate the said fee is to be paid.

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Relevant facts leading to filing of these petitions are as under.

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3.1 For the purpose of laying pipeline for transport of gas from Dahej – Vemar – Vijapur, the Central Government, in exercise of its powers under the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 and after following due procedure, acquired right of user in the various parcels of land. This was in the year 2002. The Gas Authority of India Limited – which is now known as M/s. GAIL (India) Limited - (‘GAIL’ for short) is the concerned Corporation for this purpose.

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3.2 On the above acquisition of the right of user, the original land owners were entitled to compensation under Section 10 of the PMP Act, 1962.

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3.3 The Competent Authority ordered GAIL to pay certain amount of compensation to the land owners under Section 10(1) of the PMP Act, 1962.

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3.4 The claimants wanted more compensation be awarded to them.

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3.5 For this purpose, they filed separate applications to the District Judge, Bharuch invoking Section 10(2) read with Section 10(5) of the PMP Act, 1962, read with Rule 5 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Rules, 1963. On each of such application, the court fee of Re.1/- was paid by the respective applicant.

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3.6 An issue cropped up before the District Judge, on the reference made by the Inspecting Officer appointed by the State Government under the Gujarat Court Fees Act, 2004, as to whether the court fee of Re.1/- on each application is proper or there is deficit in that regard.

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3.7 The stand of the State Government before the District Judge, through the Inspecting Officer was to the effect that, the court fee is payable according to Article 3 or 7 of Schedule-I of the Gujarat Court Fees Act, 2004. It is more than Re.1/- and is ad valorem. The stand of the GAIL, standing as respondent in the said group of matters was also consistent with that of the State Government. The case of the claimants was that even Re.1/- is not payable because in view of Section 20 (xv) of the Gujarat Court Fees Act, 2004, the applications filed by them are exempted document. The District Judge, Bharuch accepted the objection raised on behalf of the State Government through the Inspecting Officer and passed an order on 28.02.2007 directing the applicants to pay court fees accordingly. The said common order is recorded on Civil Miscellaneous Application (Court Fees Reference) (Main) No.282 of 2004, with other 1122 cognate references.

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3.8 Review Applications, being Civil Miscellaneous Application No.41 of 2007 and cognate applications were filed before the District Judge, Bharuch by the claimants to review the above order, however, that is also rejected by the District Judge, Bharuch vide order dated 17.07.2008.

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3.9 It is the above two orders i.e. the orders dated

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28.02.2007 and 17.07.2008 passed by the District Judge, Bharuch which are challenged in Special Civil Application No.12052 of 2008.

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3.10 Similar question cropped up before the District Judge, Dahod in the applications filed by GAIL for reduction of compensation awarded by the competent authority under the PMP Act, 1962, and there also similar order is passed on 31.08.2012 by the 4^th Addl. District Judge, Dahod. The said common order is recorded on Court Fees Reference No.01 of 2010 to 109 of 2010, Court Fee Reference No.110 of 2010 to 888 of 2010, Court Fee Reference No.01 of 2011 to 1568 of 2011. The said order is challenged in Special Civil Application No.2404 of 2013. On the objection of the Registry, separate one page petitions are filed qua each claimant, which are of the year 2013, the numbers of which are noted above.

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3.11 In above factual background, the question has cropped up before this Court as noted in para:2 above.

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Mr. Mihir Joshi, learned senior advocate for the claimants has addressed the Court at length. Attention of the Court is invited to the applications of the claimants before the District Judge for enhancement of compensation and the stand of the GAIL and the Government therein qua the Court fees. Reference is also made to the applications filed by GAIL before the District Judge for reduction of compensation and its stand qua Court fees on those applications. Learned senior advocate has taken this Court through the various provisions of the Gujarat Court Fees Act, 2004, the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 and

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the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Rules, 1963. The bone contention is that, nothing is chargeable by the State on the applications made by the claimants under the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 to the District Judge, since those applications are exempted documents in view of Section 20(xv) of the Gujarat Court Fees Act, 2004. It is submitted that the impugned orders being inconsistent with the statutory provisions, be quashed and set aside. Reliance is placed on the following decisions in support of his submissions.

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(i)Decision of this Court recorded on Special
Civil Application No.13458 of 2011 and allied
matters dated 13.10.2014.

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(ii)Lodna Colliery Co. (1920) Ltd., Vs. N.B. Roy
and others reported in AIR 1968 Calcutta 545.

¶85

(iii)C.G. Ghanshamdas and others Vs.
Collector of Madras reported in (1986) 4 SCC 305.

¶86

Mr. Shalin Mehta, learned senior advocate for GAIL has also addressed the Court at length. Learned senior advocate has taken this Court through the various provisions of the Gujarat Court Fees Act, 2004, the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 and the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Rules, 1963. His bone contention is also that, nothing is chargeable by the State on the applications made by the GAIL under the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 to the District

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Judge, since those applications are exempted documents in view of Section 20(xv) of the Gujarat Court Fees Act, 2004. It is submitted that all the tests of the said exemption are satisfied by the applications in question. It is submitted that the impugned orders being inconsistent with the statutory provisions, be quashed and set aside. Learned advocate for the GAIL has also made alternative submissions, reference to which would be made if necessary, after the principal contention is dealt with by this Court. Reliance is placed on the following decisions in support of his submissions.

¶90

(i)Jilubhai Nanbhai Khachar and others Vs.
State of Gujarat and another reported in 1995
Supp (1) SCC 596.

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(ii)Late Nawab Sir Mir Osman Ali Khan Vs.
Commissioner of Wealth Tax, Hyderabad reported in
1986 (Supp) SCC 700.

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(iii)Lakshmi Ammal Vs. K.M. Madhavakrishnan
and others reported in (1978) 4 SCC 15.

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(iv)Decision of this Court in Special Civil
Application No.18013 of 2005 dated 05.09.2005.

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6.1 Mr. Prakash Jani, learned Additional Advocate General for the State has submitted that, the Inspecting Officer under the Gujarat Court Fees Act, 2004 had rightly raised an issue before the District Judge and considering the provisions of the Gujarat Court Fees Act, 2004 and the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962, the District

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Judges have rightly held that the deficit court fees need to be paid by the claimants and GAIL on the applications for enhancement / reduction of the compensation awarded by the Competent Authority under the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962. Various provisions are referred to by Mr. Jani, learned Additional Advocate General to contend that, no interference be made by this Court. It is submitted that the Corporation acquires right of user only and the title continues with the original land owner and therefore as per settled position of law, the applications need to be filed with proper Court fees as stipulated under Schedule-I of the Gujarat Court Fees Act, 2004. Specific reference is made to Article 3 and 7 thereof. It is submitted that these petitions be dismissed.

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6.2 Learned Additional Advocate General has relied on the following decisions in support of his submissions.

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(i)Mota Singh and others etc., Vs. State of
Haryana and Others reported in AIR 1981 SC 484.

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(ii) Gujarat State Financial Corporation Vs.
Natson Manufacturing Co. Pvt. Ltd. Reported in
(1979) 1 SCC 193 (more particularly Para No.11).

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(iii)Tilkayat Shri Govindlalji etc., Vs.
State of Rajasthan and Others reported in AIR
1963 SC 1638(1).

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(iv) Guru Datta Sharma Vs. State of Bihar and
another reported in AIR 1961 SC 1684.

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(v)Decision of the Bombay High Court recorded
on Letters Patent Appeals No.319 of 2008 dated
21.07.2009.

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(vi) Decision of the Bombay High Court recorded
on Writ Petition No.2231 of 2008 dated
21.08.2008.

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(vii)Lady Tanumati Girijaprasad Chinubhai
Since decd. Vs. SPL. Land Acq. Officer, Western
Rly. A’bad reported in 1973 GLR 537.

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(viii)N.V.V.Krishna Vs. Union of India and
others reported in AIR 2004 Madras 324.

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(ix) The State of U.P. Vs. Ramkrishan Burman
reported in AIR 1971 SC 87.

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(x)State of W.B. Vs. Subodh Gopal Bose and
others reported in AIR 1954 SC 92.

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(xi) Urvashidevi Jaidipsinh Maharaul Vs. Union of
India reported in 2014 (2) GCD 1234 (Guj).

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(xii)Trilok Sudhirbhai Pandya Vs. Union of
India reported in AIR 2012 SC 1668.

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(xiii)Decision of Kerala High Court recorded
on WA.No.2038 of 2005 dated 11.12.2009.

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(xiv)Parikh Ramanlal Govindlal Vs. O.N.G.C.
reported in 1996 (2) G.L.H. 389.

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(xv) (The) Anil Starch Products Ltd., Vs. The
Gujarat Labour Welfare Board and Another reported
in 1983 G.L.H.912.

¶118

(xvi)Amreli Municipality Vs. Inspecting
Officer (Court Fees) reported in 1995 (1) G.L.H.
622.

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(xvii)Kilara Power Pvt. Ltd., Vs. Jyoti Ltd.,
reported in 2004 (3) GLH 639.

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(xviii) State of Gujarat Vs. Kantilal Prajapati
reported in 1977 (0) GLHEL – HC 212066.

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(xix)Gujarat State Financial Corporation Vs.
Rechan Rivets reported in 1977 (0) GLHEL – HC
204088.

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Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under.

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7.1 The point for consideration before this Court, as noted in para:2 above is, as to whether the State Government is empowered to charge any fee, under the Gujarat Court Fees Act, 2004, on an application, that may be filed by any party to the District Judge, invoking Section 10 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act,

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1962 read with Rule 5 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Rules, 1963. And if that is so, at what rate the said fee is to be paid.

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7.2 Government derives power in this regard from Section 4 of the Gujarat Court Fees Act, 2004, which reads as under.

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“Section 4: Fees on documents filed, etc. in
courts or in public offices.

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No document of any of the kinds specified as
chargeable in the First or Second Schedule
annexed to this Act shall be filed, exhibited or
recorded in any Court of Justice, or shall be
received or furnished by any public officer,
unless in respect of such document there has been
paid a fee of an amount not less than that
indicated by either of the said Schedules as the
proper fee for such document.”

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7.3 The stand of the Government is that, since the application made by the land owners / claimants or GAIL, as the case may be, is either to get more compensation or for reduction of compensation, the same would be covered by Article 3 or 7 of Schedule-I of the Gujarat Court Fees Act, 2004 and therefore, the impugned orders need to be upheld. While referring to the said articles, reference to Article 1 of the said Schedule may also be necessary. Those Articles i.e. Article Nos.1, 3 and 7 of Schedule-I of the Gujarat Court Fees Act, 2004 read as under.

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Name of Proceeding	Description	Fees

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1. Plaint or memorandum of appeal (not otherwise provided for in this Act) or of cross-objection presented to any Civil or Revenue Court.	When the amount or value of the subject matter in dispute does not exceed one hundred rupees.	Twenty rupees.
	When such amount or value exceeds one hundred rupees, for every ten rupees, or part thereof, in excess of one hundred rupees, up to one thousand rupees.	Two rupees.
	When such amount or value exceeds one thousand rupees, for every hundred rupees, or part thereof, in excess of one thousand rupees, up to ten thousand rupees. When such amount or value exceeds ten thousand rupees, or part thereof, in excess of ten thousand rupees, up to one lakh of rupees. When such amount or value exceeds one lakh of rupees, for every ten thousand rupees or part thereof in excess of one lakh of rupees :	Twenty rupees. One hundred twenty rupees. Two hundred rupees.
	Provided that the maximum fee leviable on a plaint or memorandum of appeal or of cross-

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	objection shall seventy-five thou rupees.	be sand
3. Plaint, application or petition (including memorandum of appeal) to set aside or modify any award otherwise than under the Arbitration and Conciliation Act, 1996 (26 of 1996)	…..	A fee on the amount or value of the award sought to be set aside or modified according to the scale prescribed under Article 1.
7. Any other plaint, application or petition (including memorandum of appeal), to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss, including cases wherein application or petition is either treated as a plaint or is described as the mode of obtaining the relief as aforesaid.	….	A fee on the amount of the monetary gain or loss to be prevented, according to the scale prescribed under Article 1.

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7.4 While considering the above argument, Section 20 of the Gujarat Court Fees Act, 2004, more particularly sub-section (xv) thereof also needs to be kept in view. It reads as under.

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“Section 20: Exemption of certain documents.

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Nothing contained in this Act shall render the
following documents chargeable with any fee -
(i) … … …
(ii) … … …
(xiv) … … …

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(xv)Applications for compensation under any law
for the time being in force relating to the
acquisition of property for public purposes,
other than those chargeable under Article 15 of
Schedule -I.”

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7.5 From the above it follows that firstly it has to be ascertained as to whether the applications in question would be covered by the above quoted exemption under Section 20(xv) of the Gujarat Court Fees Act, 2004 and if that is so, other arguments, including as to which Article of Schedule-I of the said Act, may pale into insignificance.

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7.6 There are four ingredients of the above quoted exemption under Section 20(xv) of the Gujarat Court Fees Act, 2004. They are :-

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(i) the application should be for compensation under any law for the time being in force,

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(ii) it should be relating to the acquisition of property,

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(iii) the said acquisition should be for public purposes,

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(iv) and it should be other than those chargeable under Article 15 of Schedule I.

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The finding of this Court, qua each of the above (i) to (iv) is as under.

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8.1.1 It is not in dispute that the applications in question

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are for compensation under the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962. They are filed under Rule 5 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Rules, 1963, invoking section 10 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962. The said rules are framed in exercise of powers under the PMP Act, 1962, the relevant sections of which are quoted hereinafter. Said Rule-5 reads as under:

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“Rule-5: Application to the District Judge for
determination of compensation :-

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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).”

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8.1.2 In view of above this Court finds that, the first test, that the application should be for compensation under any law for the time being in force, is answered in affirmative.

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8.2.1 The next requirement is that, it should be relating to the acquisition of property. To examine this aspect, reference needs to be made to Sections 6, 7, 9 and 10 of the the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962, which read as under.

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“6. Declaration of acquisition of right of user.

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(1) Where no objections under sub-section (1) of
section 5 have been made to the competent
authority with the period specified therein or
where the competent authority has disallowed the
objection under sub-section (2) of that section,
the authority shall, as soon as may be, [either
make a report in respect of the land described in
the notification under such-section (1) of
section 3, or make different reports in respect
of different parcels of such land, to the Central
Government containing his recommendations on the
objections, together with the record of the
proceedings held by him, for the decision of that
Government and upon receipt of such report the
Central Government shall, if satisfied that such
land is required for laying any pipelines for the
transport of petroleum or any mineral,] declare,
by notification in the Official Gazette, that the
right of user in the land for laying the
pipelines should be acquired [and different
declarations may be made from time to time in
respect of different parcels of the land
described in the notification issued under sub-
section (1) of section 3, irrespective of whether
one report or different reports have been made by
the competent authority under this section].

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(2) On the publication of the declaration under,
sub-section (1), the right of user [in the land
specified therein] shall vest absolutely in the
Central Government free from all encumbrances.

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(3) Where in respect of any land, a notification
has been issued under subsection (1) of section 3
but [no declaration in respect of any parcel of
land covered by that notification has been
published under this section] within a period of
one year from the date of that notification, that
notification shall cease to have effect on the
expiration of that period.

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[(3A) No declaration in respect of any land
covered by a notification issued under sub-
section (1) of section 3, published after the
commencement of the Petroleum Pipelines
(Acquisition of Right of User in Land) Amendment
Act, 1977 shall be made after the expiry of three
years from the date of such publication.]

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(4) Notwithstanding anything contained in sub-
section (2), the Central Government may, on such
terms and conditions as it may think fit to
impose, direct by order in writing, that the
right of user in the land for laying the
pipelines shall, instead of vesting in the
Central Government vest, either on the date of
publication of the declaration or, on such other
date as may be specified in the direction, in the
State Government or the corporation proposing to
lay the pipelines and thereunder the right of
such user in the land shall, subject to the terms
and conditions so imposed; vest in that State
Government or corporation, as the case may be,

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free from all encumbrances.

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7. Central Government or State Government or

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Corporation to lay pipelines

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(1) Where the right of user in any land has
vested in the Central Government or in any State
Government or Corporation under section 6-

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(i) it shall be lawful for any person authorised
by the Central Government or such State
Government or Corporation, as the case may be,
and his servants and workmen to enter upon the
land and lay pipelines or to do any other act
necessary for the laying of pipelines:

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Provided that no pipeline shall be laid under-

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(a) any land which, immediately before the date
of the notification under sub-section (1) of
section 3, was used for residential purposes;

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(b) any land on which there stands any permanent
structure which was in existence immediately
before the said date;

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(c) any land which is appurtenant to a dwelling-
house; or

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(d) any land at a depth which is less than one
meter from the surface;

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[(ia) for laying pipelines for the transport of
petroleum, it shall be lawful for any person
authorised by the Central Government or
corporation to use such land for laying pipelines
for transporting any mineral and where the right

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of user in any land has so vested for laying
pipelines for transporting any mineral, which
shall be lawful for such person to use such land
for laying pipelines for transporting petroleum
or any other mineral; and]

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(ii) such land shall be used only for laying the
pipelines and for maintaining, examining,
repairing, altering or removing any such
pipelines or for doing any other act necessary
for any of the aforesaid purposes or for the
utilisation of such pipelines.

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(2) If any dispute arises with regard to any
matter referred to in paragraph (b) or paragraph
(c) of the proviso to clause (i) of sub-section
(1), the dispute shall be referred to the
competent authority whose decision thereon shall
be final.

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9. Restrictions regarding the use of land

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(1) The owner or occupier of the land with
respect to which a declaration has been made
under sub-section (1) of section 6, shall be
entitled to use the land for the purpose for
which such land was put to use immediately before
the date of the notification under sub-section
(1) of section 3.

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Provided that, such owner or occupier shall not
after the declaration under sub-section (1) of
section 6-

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(i) construct any building or any other

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structure;

¶194

(ii) construct or excavate any tank, well,
reservoir or dam; or

¶195

(iii) plant any tree, on that land.

¶196

(2) The owner or occupier of the land under which
any pipeline has been laid shall not do any act
or permit any act to be done which will or is
likely to cause any damage in any manner
whatsoever to the pipeline.

¶197

(3) Where the owner or occupier of the land with
respect to which a declaration has been made
under sub-section (1) of section 6,

¶198

(a) constructs any building or any other
structure, or

¶199

(b) constructs or excavates any well, tank,
reservoir or dam, or

¶200

(c)plants any tree, on that land, the court of
the District Judge within the local limits of
whose jurisdiction such land is situate may, on
an application made to it by, the competent
authority and after holding such inquiry as it
may deem fit, cause the building, structure,
reservoir, dam or tree to be removed or the well
or tank to be filled up, and the costs of such
removal or filling up shall be recoverable from
such owner or occupier in the same manner as if
the order for the recovery of such costs were a
decree made by that court.

¶201

10. Compensation

¶202

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¶204

(1) Where in the exercise of the powers conferred
by section 4, section 7, or section 8 by any
person, any damage, 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.

¶205

(2) If the amount of compensation determined by
the competent authority under sub-section (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 situated, be determined by
the District Judge.

¶206

(3)The competent authority, or the District
Judge while determining the compensation under
sub-section (1) or sub-section (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

¶207

(i) the removal of tress or standing crops, if
any, on the land while exercising the powers
under section 4, section 7 or section 8;

¶208

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(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

¶211

(iii) any injury to any other property, whether
movable or immovable, or the earnings of such
persons caused in any other manner:

¶212

Providedthatindeterminingthe
compensation no account shall be taken of any
structure or other improvement made in the land
after the date of the notification under sub-
section (1) of section 3.

¶213

(4) Where the right of user of any land has
vested in the Central Government, the State
Government or the Corporation, as the case may
be, shall, in addition to the compensation; if
any, payable under sub-section (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 sub-section (1) of section
3.

¶214

(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

¶215

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¶217

is not acceptable to either of the parties, it
shall, on application by either of the parties to
District Judge referred to in sub-section (2), be
determined by that District Judge.

¶218

(6) The decision of the District Judge under sub-
section(2) or sub-section (5) shall be final.”

¶219

8.2.2 On conjoint reading of the above statutory provisions, it is clear that, the compensation paid to the claimant is towards the heads enumerated in Section 10 quoted above. It is towards what is acquired by the State and also towards what the land owner is deprived of.

¶220

8.2.3 True it is, that the title of the land is not vested in the Government or the Corporation and it continues with its original owner, but whatever is lost by the owner and whatever is acquired by the Government can be termed to be ‘property’ or not, is the test for the ingredient (ii) noted above. In this regard, reference needs to be made to the above quoted sections of the the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962.

¶221

8.2.4 The above provisions need to be read keeping in view the observations of Honourable the Supreme Court of India in the following decisions.

¶222

8.2.4.1 In the case of Late Nawab Sir Mir Osman Ali Khan vs. Commissioner of Wealth Tax, Hyderabad reported in (1986) (Supp.) SCC 700, Honourable the Supreme Court of India has observed (in para:34) as under.

¶223

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¶225

“In Aiyer’s Law Lexicon of British India, 1940
edn. Page 128, it has been said that the property
belonging to a person has two meanings- (1)
ownership; (2) the absolute right of the user.
The same view is reiterated in Stroud’s Judicial
Dictionary 4th edn. Page 260. The expression :
‘property belonging to’ might convey absolute
right of the user as well as of the ownership. A
road might be said, with perfect propriety, to
belong to a man who has the right to use it as of
right, although the soil does not belong to him.”

¶226

8.2.4.2 In the case of Jilubhai Nanbhai Khachar vs. State of Gujarat reported in (1995) (Supp.) 1 SCC 596, Honourable the Supreme Court of India has observed (in para:42) as under.

¶227

“Property in legal sense means an aggregate of
rights which are guaranteed and protected by law.
It extends to every species of valuable right and
interest, more particularly, ownership and
exclusive right to a thing, the right to dispose
of the thing in every legal way, to possess it,
to use it, and to exclude everyone else from
interfering with it. The dominion or indefinite
right of use or disposition which one may
lawfully exercise over particular things or
subjects is called property. The exclusive right
of possessing, enjoying, and disposing of a thing
is property in legal parameters. Therefore, the
word ‘property’ connotes everything or which is
subject of ownership, corporeal or incorporeal,

¶228

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tangible or intangible, visible or invisible,
real or personal; everything that has an
exchangeable value or which goes to make up
wealth or estate or status. Property, therefore,
within the constitutional protection, denotes
groups of rights inhering citizen’s relation to
physical thing, as right to possess, use and
dispose of it in accordance with law. In
Ramanatha Aiyar’s The Law Lexicon, Reprint Edn.
1987 at pa. 1031, it is stated that the property
is the most comprehensive of all terms which can
be used, inasmuch as it is indicative and
descriptive of every possible interest which the
party can have. The term property has a most
extensive signification, and, according to its
legal definition, consists in free use,
enjoyment, and disposition by a person of all his
acquisitions, without any control or diminution,
save only by the laws of the land. In Dwarkadas
Shrinivas case this Court gave extended meaning
to the word property. Mines, minerals and
quarries are property attracting Article 300-A.”

¶231

8.2.4.3 In the case of Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke and Chemicals Ltd. reported in (2007) 8 SCC 705, Honourable the Supreme Court of India has observed that even if nothing is acquired by the State but if the land owner is deprived of its use, the way in which he wishes, is also depriving him of his property. The observations in para:77 of the said decision are as under.

¶232

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¶234

“To accept that it is open to the town
development authority to declare an intention to
formulate a town development scheme even without
a development plan and ipso facto bring into play
a freeze on usage of the land under Section 53
would lead to complete misuse of powers and
arbitrary exercise thereof depriving the citizen
of his right to use the land subject to the
permitted land use and laws relating to the
manner of usage thereof. This would be an
unlawful deprivation of the citizen’s right to
property which right includes within it the right
to use the property in accordance with the law as
it stands at such time. To illustrate the
absurdity to which such an interpretation could
lead it would then become open to the town
development authority to notify an intent to
formulate a town development scheme even in the
absence of a development plan, freeze all usage
of the property by an owner thereof by virtue of
Section 53 of the Act, and no development plan
should be finalized within 3 years, such scheme
would lapse and the authority thereupon would
merely notify a fresh intent to formulate a town
development scheme and once again freeze the
usage of the land for another three years and
continue the same ad-infinitum thereby in effect
completely depriving the citizen of the right to
use his property which was in a manner otherwise
permitted under law as it stands.”

¶235

8.2.5 On conjoint consideration of the above quoted statutory

¶236

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¶238

provisions and the preposition of law, it is held that, in the present case, what the land owner is deprived of is the 'property' and further what the State acquires is also 'property', though not 'title' and therefore the application for compensation in question is relating to the acquisition of property, and thus the second requirement of Section 20(xv) of the Gujarat Court Fees Act, 2004 also stands satisfied.

¶239

8.3.1 Coming to the third ingredient, it is to be ascertained as to whether the said acquisition is for public purpose. In this regard, reference needs to be made to Section 3 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962, which reads as under.

¶240

“3. Publication of notification for acquisition:

¶241

(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.

¶242

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

¶243

(3) The competent authority shall cause the

¶244

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¶246

substance of the notification to be published at
such places and in such manner as may be
prescribed.”

¶247

8.3.2 The above is the starting point of the exercise of power by the Government. If it is not for public purpose, the very acquisition of right of user would be illegal. Thus, the test for stipulation (iii) also is answered in affirmative.

¶248

8.4.1 The stipulation (iv) is that, the said acquisition should be other than the one referred to in Article 15 of Schedule-I of the Gujarat Court Fees Act, 2004. The said Article reads as under.

¶249

Name of Proceeding	Description	Fees
15. Application to the Collector for a reference to the Court under Section 18 of the Land Acquisition Act, 1894.	….	One-half of the ad-valorem fee on the difference, if any, between the amount awarded by the Collector and the amount claimed by the applicant, according to the scale prescribed under Article 1 of Schedule 1, subject to a minimum fee of thirtyrupees.

¶250

8.4.2 It is not in dispute that, the acquisition in question is not the land acquisition under Section 18 of the Land Acquisition Act, 1894. In fact, it is the case of the State itself that the title of the land in question continues with the land

¶251

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¶253

owner and this is not the case of land acquisition. Thus, the application in question is not, which is referred to in Article 15 of Schedule-I of the Gujarat Court Fees Act, 2004. For this reason, even the test (iv) is answered in affirmative, going by the case of the State itself.

¶254

8.5 In view of above, the only conclusion at which this Court can arrive at is that, all the ingredients of exemption provided in sub-section (xv) of Section 20 of the Gujarat Court Fees Act, 2004, exist in the applications in question. Consequently, nothing would be chargeable under the Gujarat Court Fees Act, 2004, on the applications in question. By the impugned orders, however, the District Judges have directed the applicants before them to pay court fees under the Gujarat Court Fees Act, 2004 and therefore those orders need to be quashed and set aside.

¶255

8.6 In view of above findings, there is no doubt that the Court fee is not chargeable under the Gujarat Court Fees Act, 2004, on the applications in question, however even if there was any doubt in that regard, the observations of Hon’ble the Supreme Court of India in the case of Lakshmi Ammal vs. K.M.Madhavakrishnan reported in (1978) 4 SCC 15, would come in play. Para-2 of the said decision reads as under.

¶256

“It is unfortunate that long years have been
spent by the courts below on a combat between two
parties on the question of court fee leaving the
real issues to be fought between them to come up
leisurely. Two things have to be made clear.
Courts should be anxious to grapple with the real

¶257

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¶258

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¶259

issues and not spend their energies on peripheral
ones. Secondly, the court fee, if it seriously
restricts the rights of a person to seek his
remedies in courts of justice, should be strictly
construed. After all access to justice is the
basis of the legal system. In that view, where
there is a doubt, reasonable, of course, the
benefit must go to him who says that the lesser
court fee alone be paid.”

¶260

 (emphasis supplied)

¶261

8.7 Further, it is the settled position of law that the provisions of the statute like the court fees have to be strictly construed in favour of the litigant. The source of power to the State for this purpose must be unambiguous. Reference in this regard can be made to the observations of Hon’ble the Supreme Court of India in the case of Gujarat State Financial Corporation Vs. Natson Manufacturing Co. Pvt. Ltd. reported in (1979) 1 SCC 193.

¶262

8.8 Thus, viewing from any angle, this Court finds that the only conclusion at which in the present case one can reach is that, all the ingredients of exemption under sub-section (xv) of Section 20 of the Gujarat Court Fees Act, 2004 exist in the applications in question and consequently nothing would be chargeable under the Gujarat Court Fees Act, 2004, on the applications in question and therefore the impugned orders need to be quashed and set aside.

¶263

Though learned advocates have addressed this Court at length on various dimensions of the matter, since the point at

¶264

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issue is as noted above and the same having been answered by this Court in above terms, dealing with other arguments would be academic and therefore the same are not gone into.

¶267

10.1 Though learned advocates have referred to various authorities, dealing with all of them would be unnecessary, since all are not on the point at issue noted and answered above. It is noted that, reliance placed by learned Additional Advocate General on the authorities in the case of Anil Starch Products Ltd. ( supra ), Amreli Municipality ( supra), Kilara Power Pvt. Ltd. (supra), State of Gujarat Vs. Kantilal Prajapati (supra), Gujarat State Financial Corporation Vs. Rechan Rivets (supra), are on the point, as to when ad valorem court fees is to be paid. The question of any of the Articles of Schedule-I of the Gujarat Court Fees Act, 2004 coming into play would crop up only if, exemption under Section 20(xv) of the Gujarat Court Fees Act, 2004 is not attracted. Since it is held that, the present case falls under the said exemption, those judgments would not take the case of the Government any further.

¶268

10.2 It is also noted that, heavy reliance is placed on the decisions of the Bombay High Court recorded on Writ Petition No.2231 of 2008 dated 21.08.2008, as confirmed in Letters Patent Appeal No.39 of 2008 vide judgment dated 21.07.2009. In this regard, it is noted that, erection of telephone polls in somebody’s land in exercise of powers under the Indian Telegraph Act, 1885 and consequential compensation claimed by the land owner was the point for determination before the Court. The same would therefore not be applicable ipso facto in this case. Further, para:15 of the decision of the Division Bench of the Bombay High Court in that case reads as under.

¶269

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¶271

“15.As already stated above, the
provisions of Indian Telegraphic Act, 1885,
nowhere contemplate acquisition and appellate
– plaintiff is seeking compensation with a
contention that his land has been acquired by
invoking Section 16(3) of the Telegraph Act.
The compensation for damages sustained by him
is already tendered to him by respondent No.1
and its adequacy is in dispute. Thus,
questions whether it is acquisition as
understood in any law or then whether the
appellant is entitled to claim market value of
property as compensation under Telegraph Act,
1885 and lastly the adequacy or otherwise of
the amount of compensation paid to him towards
loss/damages need to be gone into by District
Judge. In all three judgments referred to
above, such type of adjudication was not
necessary and the obligation whether statutory
or contractual was required to be discharged.
The above-mentioned judgments are not,
therefore, relevant in present matter.”

¶272

(emphasis supplied)

¶273

For this reason, the said decisions would also not take the case of the State any further.

¶274

10.3 Heavy reliance is placed also on the decision of this Court in the case of Lady Tanumati ( supra ). The Courts below have also based their impugned orders, inter alia on the said

¶275

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decision. In this regard it needs to be recorded that, the said decision pertains to the Court fees in the event of compensation in case of land acquisition under the Land Acquisition Act, 1894. The Court in that perspective had held that ad valorem Court fee is payable in those cases. In view of Article 15 of Schedule-I of the Gujarat Court Fees Act, 2004, there can not be any dispute in that regard, however, as noted above, the point at issue in the present case is as to whether any of the Articles of the said Schedule would come in play at all. As held above, the applications in question in the present case are exempted in view of Section 20(xv) of the Gujarat Court Fees Act, 2004 and therefore, the said decision would not held the State in any manner.

¶278

11.1 There is one glaring aspect which needs a mention. It is noted that, the GAIL has taken inconsistent stand before the District Court, so also before this Court. When the applications were filed by the claimants, GAIL had taken stand that the court fees are required to be paid by those claimants, as asked for by the State. Those applications are opposed by GAIL before the District Court and in the petition before this Court being Special Civil Application No.12052 of 2008, which is filed by the claimants. Reference can be made to the contents of the affidavit-in-reply dated 06.10.2009 filed by GAIL, which is on record.

¶279

11.2 While GAIL was opposing the claimants before the District Court and before this Court as noted above, soon thereafter it became necessary for GAIL itself to challenge the order of the Competent Authority under the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act,

¶280

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1962 before the District Court, contending that it was on a higher side. Though it is a Public Sector Undertaking, its stand was like any other ordinary litigant. The order of the District Court asking GAIL to pay court fees, as asked for by the State, is challenged in Special Civil Application No.2404 of 2013. Both the petitions are heard together by this Court. Learned advocate for the GAIL was asked to make its stand clear in this regard, and in response thereto it is submitted that, the exemption under Section 20(xv) of the Gujarat Court Fees Act, 2004 is attracted qua the claimants and GAIL both. In view of this, the stand of the GAIL as the respondent in the petition filed by the claimants being Special Civil Application No.12052 of 2008, is inconsistent with its own stand taken in Special Civil Application No.2404 of 2013 as the petitioner. Though this would show lack of bona fide of GAIL, while deciding the question of law, this Court can not be swayed away by this and therefore this is left at this stage.

¶283

For the reasons recorded above, more particularly in para: 8 of this judgment, this Court arrives at the judgment and passes the order as under.

¶284

12.1 It is held that, the State Government is not empowered to charge any fee, under the Gujarat Court Fees Act, 2004, on an application, that may be filed by any party to the District Judge, invoking Section 10 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 read with Rule 5 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Rules, 1963, since it is exempted under Section 20 (xv) of the Gujarat Court Fees Act, 2004.

¶285

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¶287

12.2 The impugned common order dated 28.02.2007 passed by the District Judge, Bharuch on Civil Miscellaneous Application (Court Fees Reference) (Main) No.282 of 2004, with other 1122 cognate references, is quashed and set aside. The order dated 17.07.2008 passed by the District Judge, Bharuch on Review Applications, being Civil Miscellaneous Application No.41 of 2007 and cognate applications, would not survive and the same also is quashed and set aside.

¶288

12.3 The impugned common order dated 31.08.2012 passed by the 4^th Additional District Judge, Dahod on Court Fees Reference No.01 of 2010 to 109 of 2010, Court Fee Reference No.110 of 2010 to 888 of 2010 and Court Fee Reference No.01 of 2011 to 1568 of 2011, is also quashed and set aside.

¶289

12.4 All these petitions are accordingly allowed and rule is made absolute in each petition, with no order as to costs.

¶290

(PARESH UPADHYAY, J.)

¶291

mhdave/1

¶292

Page 37 of 37

Gail (India) Ltd. v. Competent Authority

Case brief

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Gail (India) Ltd. v. Competent Authority

Case brief

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