IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2038 of 2005()
1. PETRONET CCK LTD.,
... Petitioner
Vs
1. NIRMAL ANTONY, SILVASTREE KALAM,
... Respondent
2. UNION OF INDIA,
For Petitioner :SRI.M.PATHROSE MATTHAI (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :11/12/2009
O R D E R
C .N. RAMACHANDRAN NAIR &
V.K. MOHANAN, JJ.
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W.A. No. 2038,2039,2040,2041,2044,
2052, 2053,2063, 2066,2074,2076,
2106,2107, 2108, 2109, 2110, 2111,
2112,2113,2114, 2115, 2136, 2137,
2138, 2146,2154, 2167, 2183, 2201,
2207,2230, 2261, 2262, 2263, 2287,
2292, 2293, 2307, 2308, 2312, 2330,
2333,2376 OF 2005 & Cross-objections
9, 12,13, 15, 17, 18, 24, & 31/2006
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Dated this the 11th day of December, 2009
JUDGMENT
Ramachandran Nair, J.
These Writ Appeals and Cross-objections arise from the same
judgment of the learned single Judge upholding the constitutional
validity of the Petroleum and Minerals Pipelines (Acquisition of right
of user in land) Act, 1962, hereinafter called the “Act”, with certain
observations and findings on the compensation payable under various
clauses of Section 10 of the Act.
2. The appellant-company in the Writ Appeals is a Corporation
falling under Section 2(b) of the Act which has laid pipelines over a
metre below the surface of the properties of respondents for movement
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of petroleum products from the Refinery at Kochi to their Depot at
Karur. Writ Petitions were filed by the land owners challenging the
constitutional validity of statutory provisions which authorise the
Corporation to acquire the right to lay pipeline through the property of
land owners. The statutory scheme authorises the land owners to
continue to use the property for any purpose except construction of
building or other structures, construction or excavation of any tank,
well, reservoir or dam, or planting of trees even after pipelines are laid.
Compensation payable under Section 10(1) read with sub-section (3) of
Section 10 is for the actual loss suffered by the land owners.
Obviously laying of pipelines involve crop loss, disability for
cultivation and use of the land for the purposes for which it was used
during laying of pipelines. Besides the compensation for actual loss
suffered in terms of Section 10(1) read with sub-section (3) of Section
10, the Act provides for mandatory compensation at 10% of the market
value of the land to be paid to the land owner or any person affected on
account of disability attached to the land covered by the proviso to
Section 9(1) of the Act. The learned single Judge held that disabilities
suffered by the land owners on account of laying of pipelines are such
that they are entitled to full compensation for the value of the land as
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given in land acquisition cases. However, the learned single Judge held
that laying of pipelines beneath the surface of the land does not require
or involve any acquisition of land, and it is only a right enjoyed by the
corporation and therefore he turned down the land owners’ challenge
against constitutional validity of the provisions. Further, while
disposing of the Writ Petitions, the learned single Judge explained the
scope of compensation payable under all the sub-sections of Section 10
and held that the compensation payable under Section 10(4) is by way
of solatium referred to in the land acquisition Act and is payable in
addition to the compensation payable under Section 10(1) read with
sub-section (3) of the Act. It is against these findings of the learned
single Judge on the scope of compensation payable under Section 10 of
the Act that the Corporation has filed these Writ Appeals. Even
though most of the land owner-writ petitioners have not challenged the
judgment upholding constitutional validity of the provisions of the Act,
eight of them have filed Cross-Objections for sustaining their challenge
against constitutional validity of the provisions of the Act. We have
heard senior counsel, Sri. Pathrose Matthai, appearing for the
appellant-Corporation, senior counsel Smt. Sumathy Dandapani,
appearing for the central Government, senior counsel Sri. T.C.
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Mohandas, appearing for the land owners- Cross-objectors and other
counsel appearing for the respondents- land owners.
3. So far as appellant-Corporation is concerned, their grievance
is against the observations and findings of the learned single Judge
with regard to compensation payable under various provisions of
Section 10(1) of the Act. For easy reference the findings of the learned
single Judge contained in the judgment are extracted hereunder:
42. The result that follows is:
(1) I uphold the constitutionality of the Petroleum and
Minerals Pipelines (Acquisition of Right of User in
Land) Act, 1962. The challenge against the
constitutionality on all the grounds raised in the Writ
Petition will fail.
(2) It is declared that the compensation payable under
Section 10(4) of the P.P. Statute is over and above the
compensation payable under Section 10(1) and is in
the nature of solatium.
(3) The competent authority and the District Judge
while determining compensation under Section 10(1)
or 10(2) as the case may be, shall apart from the
aspects mentioned in Section 10(3)(i), 10(3)(ii), and
10(3)(iii) also take into account the diminution in the
value and utility of the acquired land inclusive of the
sub-soil on account of the interdicts imposed upon
the land and the land owners under the proviso to
Section 9.
………….
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The appellant apprehends that the learned single Judge has expanded
the scope of compensation payable by stating that compensation
payable under Section 10(4) is over and above the compensation
payable under Section 10(1) and is in the nature of solatium and further
by holding that the competent authority or the District Judge, as the
case may be, while determining the compensation under Section 10(1)
or Section 10(2), should take into account, in addition to the aspects
mentioned in Section 10(3)(i) to (iii), the diminution in value and
utility of the land on account of interdicts imposed on the land and land
owners under the proviso to Section 9. In the first place, we notice that
the learned single Judge has not upheld the constitutional validity of
the statutory provisions based on any specific meaning assigned by him
to the provisions for payment of compensation. Senior counsel
appearing for the appellant contended that after upholding
constitutional validity, the Court has no authority to expand the scope
of compensation payable under the provisions of the Act. Before
proceeding to consider this contention, we have to examine whether the
court has given any meaning or new dimension to the provisions on
compensation different from what the legislature intended. In our
view, the conclusion recorded in clause (2) of paragraph 42 above is
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perfectly right because compensation payable under Section 10(4) is
over and above the compensation payable under Section 10(1).
Compensation payable under Section 10(1) is for actual loss suffered
by the land owners on account of laying of pipelines by the
Corporation at one and a half metres beneath the surface of the land.
This is a matter depending upon facts of each case. In fact
compensation payable under Section 10(1) is for the actual damage,
loss or injury sustained by the land owners or person interested in the
land, beneath which pipeline is laid. There may be cases where
pipeline is laid by destroying crop and the time taken for laying
pipeline may prevent the party from cultivating crop for a season or for
sometime. Cases of this nature will certainly involve actual loss,
damage or injury entitling the land owner for compensation for the
actual loss suffered either on account of loss of crop or on account of
disability to cultivate or use the land for a duration during which
pipeline is laid. We make it clear that we have only cited illustrative
situations warranting compensation under Section 10(1) and we cannot
exhaustively consider the circumstances that will lead to injury, loss or
damage to the land owners or the person affected in the land during the
course of laying pipelines. Section 10(3) only gives guidelines to the
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competent authority and to the District Judge to take into account the
circumstances stated therein while considering compensation which are
again for temporary disability suffered by the land owners on account
of laying of pipelines. However, Section 10(4) speaks about
compensation in absolute terms payable to the land owners which is
10% of the market value of the land, which in our view is for the
disabilities attached to the land and the land owners in respect of land
used for laying the pipeline. It is worthwhile to refer to disabilities
contained in Section 9, which are the following:
9. Restrictions regarding the use of land.– (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:
Provided that, such owner or occupier shall not after
the declaration under subsection (1) of Section 6–
(i) construct any building or any other structure;
(ii) construct or excavate any tank, well,
reservoir or dam; or
(iii) plant any tree.
on that land.
(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 damage8
in any manner whatsoever to the pipeline.
……………
It is obvious from Section 9(1) that once the pipelines are laid,
possession will revert back to the land owner who is free to use the
land for the purposes for which such land was put to use immediately
before the date of the notification issued under sub-section (1) of
Section 3 of the act. Restrictions are against construction of building
or any structure, and against excavation or construction of any tank,
well, reservoir, dam, etc., and against planting of trees and against
doing anything that is likely to cause damage to the pipeline. In other
words, without affecting the pipeline laid, that is without constructing
any building, digging the land or planting trees, the owner is free to use
the land for cultivation or any other purpose. In our view, the
compensation payable under Section 10(4) is for the diminution in
value of the land on account of disabilities attached to it under Section
9(1) and (2) of the Act. The compensation provided under this
provision is 10% of the market value. In our view, styling of the
compensation as equivalent to solatium payable under the Land
Acquisition Act by the learned single Judge does not give any new
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dimension to the compensation payable under Section 10(4). In this
view of the matter, clause (3) of paragraph 42 of the judgment above
extracted can only mean that the compensation payable under Section
10(4) is over and above the compensation payable under Section 10(1)
read with sub-section (3). We therefore hold that besides the
compensation provided for actual damage and injuries sustained by the
land owners or the person interested in the land under Section 10(1)
read with sub-section (3) thereof, the only compensation payable is
10% of the market value payable under Section 10(4) of the Act to the
land owners which is compensation payable for the restrictions in
regard to use and enjoyment of land under Section 9(1) and (2) of the
Act. We dispose of the Writ Appeals clarifying the judgment of the
learned single Judge as above. However, the above findings on the
compensation payable will be subject to the scope and application of
Section 18 of the Act discussed below, while considering constitutional
validity of the provisions.
4. This leaves us with the Cross-objections filed by eight land
owners, who contended before us that the learned single Judge was not
justified in upholding the constitutional validity of the provisions. The
main ground of challenge against constitutional validity of the statute,
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as argued by senior counsel Sri. T.C. Mohandas, appearing for the
cross-objectors, is based on Section 18 of the Act, which is as follows:
18. Application of other laws not barred.– The provisions
of this Act shall be in addition to, and not in derogation of,
any other law for the time being in force relating to
acquisition of land.The contention of senior counsel appearing for the land owners is that
the above provision gives discretion to the competent authority either
to proceed for acquisition of land under the provisions of the Land
Acquisition Act or to proceed to issue declaration under Section 3 of
the Act acquiring only the right to lay pipeline beneath the surface of
the land for movement of petroleum products. To a specific question
as to whether appellant-Corporation has acquired land from some or
few land owners and from remaining land owners only acquired the
right to lay pipeline under the Act in their discretion leading to
discrimination between the two set of land owners, counsel submitted
that they have no information. Counsel appearing for the Corporation
on the other hand submitted that no discrimination is shown among
land owners because no land is acquired under the provisions of the
Land Acquisition Act and in all cases acquisition is only of the right to
lay pipeline by issuing notification under Section 3 and declaration
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under Section 6 of the Act and the land owner or the person interested
in the land was given compensation in terms of the provisions of the
Act. In fact, we are told that the compensation cases are pending at
various stages, and even in this Court CRPs are pending and posted
along with WAs and Cross-objections. In order to consider the
contention of cross-objectors, we have to consider whether Section 18
is capable of application in a discriminatary manner.
5. The Act is in force in the country from 1962 onwards.
Admittedly pipelines have been laid in the properties of several land
owners by invoking the provisions of the Act, that is by paying
compensation in terms of the Act only for right to use the land for
retaining the pipelines. In fact, except where the pipelines pass
through urban areas, most of the pipelines are laid through agricultural
land which are used for cultivation of various crops like paddy, wheat,
etc. The embargo under Section 9 is only against planting trees and
construction of building or tanks, etc. Short of these activities, farmers
whose lands are utilised on payment of compensation for laying
pipelines beneath the surface of the land are not affected at all
inasmuch as they are allowed to cultivate the land on regular basis and
take the yield. Therefore in our view most of the land owners over
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whose lands the Corporation enjoys the right for laying and retaining
pipelines are beneficiaries of the compensation because even after
laying pipelines they are cultivating their land and earning income. In
the first place, in our view, if the provisions of the Act are struck
down, it will affect large number of beneficiaries who by making small
sacrifice in the form of deprivation of right to construct structures and
planting trees, are getting compensation from the Corporation for
laying and retaining pipelines. As already stated, most of the farm
lands through which pipelines are laid in India are unfit and are not
used for construction of buildings, or for tree planting and so much so
there is actually no loss for the farmers. However, they are getting
compensation for laying and retaining pipelines through such land only
because of the notional loss contemplated under Section 10(4) of the
Act. We have to examine the petitioners’ challenge against
constitutional validity in the context of application of the Act for the
country as a whole and the general grievance of land owners.
Considering the general applicability of the Act, we feel more land
owners will be beneficiaries and only a few will be probably affected.
Of course, if the land taken over for laying pipelines is a house site,
we feel the restriction under Section 9 against construction of building
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will deprive the land owner virtually of his entire rights on the land. In
such cases, we feel the land owner can compel the Corporation to
acquire the land under the Land Acquisition Act as contemplated under
Section 18 of the Act because the Act does not provide for
compensation for the deprivation of the right of use for which the land
was intended. There will be only very rare and exceptional cases of
this nature warranting acquisition because if the land owner has
sufficient space for construction of house left in his property after
excluding the property used by the Corporation to lay pipeline the
provision for acquisition under Section 18 cannot be forced on the
Corporation. However, we disagree with the view expressed by the
learned single Judge that the authority or District Judge authorised to
grant compensation can cover losses of the type stated above while
granting compensation under Section 10(1) read with Section 10(3). If
compensation for actual loss for a case of the type stated above is
claimed, then recourse is only to Section 18 for acquisition under the
Land Acquisition Act. If the Corporation does not proceed to acquire,
it is for the land owner to approach the High Court for appropriate
direction. Besides case of the nature stated above, the purpose of
Section 18 is to enable the Corporation to acquire land for the purpose
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of construction of office building, pump house, or the like in
connection with laying, retention and operation of pipelines. Since the
Act does not provide for acquisition of land, it is specifically stated in
Section 18 that along with acquisition of right to use for laying
pipelines, for any purpose and purposes in connection therewith,
where exclusive ownership and possession of the land is required by
the Corporation, it is free to invoke acquisition proceedings under the
Land Acquisition Act. We do not find any conflict in Section 18 with
other provisions of the Act because it is only an enabling provision to
acquire land if so desired. The apprehension of the petitioners that
Section 18 is capable of misuse is not established with any facts.
Corporation has clearly stated that no land is acquired for the use of
the Corporation to the exclusion of the land owner and all what is so far
done is acquisition of right in land only for laying pipelines beneath it.
We are of the view that if the Corporation wants to make any
construction or installation or requires exclusive possession for any
purpose, they are free to acquire the land under the Land Acquisition
Act. What Section 18 says is that the Act does not affect the right of
the Corporation to seek acquisition of land under the Land Acquisition
Act, if required. We do not therefore find any merit in the petitioners’
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challenge against validity of statutory provisions.
Consequently the Cross-objections are dismissed and W.A.s are
disposed of as above, subject to the findings and observations above
stated modifying judgment of the learned single Judge.
(C.N.RAMACHANDRAN NAIR)
Judge.(V.K. MOHANAN)
Judge.kk
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