WP/5947/2000 of Hindustan Petroleum Corporation Limited, Vs Competent Authority and Dy. Collector, on 26 December 2006

COMMON ORDER:

The Petroleum and Minerals, Pipelines (Acquisition of Right of User in land)Act, 1962 (hereinafter called ‘the Act’) provide for the acquisition of right of user inland for laying pipelines for the transport of petroleum and minerals and fortransporting petroleum or any mineral by the Government or the Governmentundertaking. Sections 3 to 6 of the Act lay down the procedure to acquire the right ofuser in any private land. In a nut shell, these provisions provide that whenever itappears to the Central Government that it is necessary for the transport of petroleum from one locality to another, and for that purpose pipelines are to be laid, the CentralGovernment may, by notification under the Official gazette, declare their intention toacquire the right of user in any land. On such notification, it shall be lawful for anyauthorized person to lay pipelines for transporting petroleum, and under Section 5 ofthe Act any person can raise objections for the same. After hearing the objections, adeclaration is to be made under Section 6(1) of the Act, whereafter it shall be open tothe State Government or any Corporation to lay pipelines, subject to the terms andconditions that may be imposed by the Central Government. As per Section 9 of theAct, whenever the right of the user is acquired by the Central Government, the owneror occupier of the land shall be entitled to use the land for the purpose for whichsuch land was to be used immediately before publication of notification underSection 3(1) of the Act. Nonetheless, construction of any building, tank, well,reservoir or plantation of trees on the land shall not be permitted. Be that as it is,Section 10 of the Act provides for compensation and reads as under.

10. Compensation:- (1) Where in the exercise of the powersconferred 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 whichthe pipeline is proposed to be, or is being, or has been laid the CentralGovernment, the State Government or the corporation, as the case may be,shall be liable to pay compensation to such person for such damage, loss orinjury, the amount of which shall be determined by the competent authority inthe first instance.

(2) If the amount of compensation determined by the competent authorityunder sub-section (1) is not acceptable to either of the parties, the amount ofcompensation shall, on application by either of the parties to the DistrictJudge within the limits of whose jurisdiction the land or any part thereof issituated, by determined by that District Judge.

(3) The competent authority, or the District Judge while determining thecompensation 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 personinterested in the land by reason of—

(i) the removal of trees or standing crops, if any, on the land whileexercising the powers under Section 4, Section 7 or Section 8;

(ii) the temporary severance of the land under which the pipelines hasbeen laid from other lands belonging to, or in the occupation of, such person;or

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

Provided that in determining the compensation no account shall be takenof any structure or other improvement made in the land after the date of thenotification under sub-section (1) of Section 3.

(4) Where the right of user of any land has vested in the CentralGovernment, 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 ofenjoyment in that land has been affected in any manner whatsoever byreason of such vesting, compensation calculated at ten per cent of themarket-value of that land on the date of the notification under sub-section (1)of Section 3.

(5) The market-value of the land on the said date shall be determined bythe competent authority and if the value so determined by that authority is notacceptable to either of the parties, it shall, on application by either of theparties to District Judge referred to in sub-section (2), be determined by thatDistrict Judge.

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

A plain reading of the above provision would show that if any person suffersdamage, loss or injury in the laying of pipelines, he is entitled to claim compensationfor such damage, loss or injury to be determined by the competent authority, who isa person authorized by the Central Government to perform the functions of thecompetent authority under the Act (see Section 3 of the Act). If the person is notsatisfied with the compensation determined by the competent authority, he can makean application to the District Judge for determination of the compensation afresh andthe discretion of the District Judge shall be final.

In these cases, the Government of India initiated procedure for acquiring the right touser of various persons of Gali Bheemavarm Village, Sabbavaram Mandal,Visakhapatnam for laying pipelines named as Visakhapatnam-Vijayawada pipelinefor Hindustan Petroleum Corporation Limited (HPCL), the petitioner herein. Thecompetent authority, the first respondent herein determined a sum of Rs.300/- percent as a sum as compensation for damage, loss or injury. Not satisfied with thesame, various persons filed PLOP No.1223/98 and batch on the file of the Court ofthe II Additional Judge, Visakhapatnam, who is competent under Section 10(2) ofthe Act. The owner of the land whose right of user was acquired for laying pipeline isarrayed as the third respondent in all the writ petitions.

Conclusion

In the Court of the District Judge the owner contended that the market value of theland in Gali Bheemavaram Village is more than Rs.80,000/- per acre, that the area has gained importance due to increased construction activity, and that the amount ofRs.300/- per cent awarded by the competent authority as compensation is improperand illegal. The PLOPs were opposed by the petitioner herein. It was alleged thatthe competent authority has taken into consideration the registration statistics andvaluation reports of authorized officials of Horticulture Department for assessing thevalue of the trees and the various crops damaged while laying pipelines, andtherefore, the compensation awarded in a sum of Rs.300/- per cent is valid. Onbehalf of the claimants, the claimant alone was examined as P.W.1 (in every case)and the petitioner herein examined R.Ws 1 and 2, besides marking Exs.B.1 to B.14.The claimant, however, did not mark any documents, except exhibiting the noticereceived from the competent authority as Ex.A.1. On consideration of the evidence,the learned District Judge came to the conclusion that R.W.1, who is competentauthority, did not inform the owners of the property while passing awards and thatthe petitioner herein did not produce any rebuttal evidence to deny the claim ofRs.800/- per cent and accordingly ordered the payment of compensation at the rateof Rs.800/- per cent. The learned District Judge also directed to pay a sum ofRs.500/- with costs of Rs.200/- to the owners, after giving due credit to the amount ofRs.300/- per cent, which was already paid by the petitioner herein. In these writpetitions the owners assail the various orders passed by the learned District Judgein various PLOPs. The Act does not provide any further appeal to the High Court.

The learned Counsel for the petitioner-Petroleum Company, Sri Bhanu Prakash, representing Dr.P.V.Vijay Kumar, submits that the learnedDistrict Judge failed to consider the evidence produced by the petitioner, especiallyExs.B.4, B.5 and B.8, which are copies of the award in related proceedings andtherefore, the impugned orders are vitiated by grave error apparent on the face ofrecord and are liable to be set aside. Per contra, the learned Counsel for thecontesting respondents in all the writ petitions, Sri V.Mallik, submits that havingregard to Section 9 of the Act, read with Section 10(4) of the Act, award of Rs.800/-per cent towards 10% of the market value is justified and the correct market valuebeing the disputed question of fact, a writ of certiorari would not lie.

It is well settled that a writ of certiorari would be issued when the authority passingorder suffers from inherent lack of jurisdiction known as error of jurisdiction and/orwhen such authority while considering the matter commits an error apparent on theface of record in appreciation of the fact, in appreciation of principles of law orapplying wrong principles of law to the facts. Every error as such is not amenable tocertiorari jurisdiction. A reference may be made to the decision of the Supreme Courti n Syed Yakoob v. K.S.Radha Krishnan and Jagdish Prasad v. Smt. AngooriDevi.

In Syed Yakoob v. K.S.Radhakrishnan (supra) it was laid down as under.

The question about the limits of the jurisdiction of High Courts inissuing a writ of certiorari under Art.226 has been frequently considered bythis Court and the true legal position in that behalf is no longer in doubt. A writof certiorari can be issued for correcting errors of jurisdiction committee byinferior courts or tribunals; these are cases where orders are passed byinferior courts of tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued wherein exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally orimproperly, as for instance, it decides a question without giving anopportunity to be heard to the party affected by the order, or where theprocedure adopted in dealing with the dispute is opposed to principles ofnatural justice. There is, however, no doubt that the jurisdiction to issuea writ of certiorari is a supervisory jurisdiction and the Court exercisingit is not entitled to act as an appellate Court. This limitation necessarilymeans that findings of fact reached by the inferior Court or Tribunal asresult of the appreciation of evidence cannot be reopened orquestioned in writ proceedings. An error of law which is apparent onthe face of the record can be corrected by a writ, but not an error offact, however grave it may appear to be. In regard to a finding of factrecorded by the Tribunal, a writ of certiorari can be issued if it is shownthat in recording the said finding, the Tribunal had erroneously refusedto admit admissible and material evidence, or had erroneously admittedinadmissible evidence which has influenced the impugned finding.

(emphasis supplied)

In JagdishPrasad v. Smt.Angoori Devi (supra) the Apex Court reiterated that thejurisdiction to issue a Writ of Certiorari is supervisory one and in exercising it, theCourt is not entitled to act as a Court of Appeal and therefore the finding of factsarrived by an inferior Court or Tribunal are binding. The Court then referred to thecase of Syed Yakoob v. K.S.Radhakrishnan(supra) and observed as under.

In the case of Syed Yakoob v. K.S.Radha Krishnan [(1964) 5 SCR 64 : AIR1964 SC 477) a Constitution Bench of this Court indicated the scope ofinterference in a certiorari proceeding by saying that a writ of certiorari isissued for correcting the errors of jurisdiction committed by the courts ortribunals in cases where they exceed their jurisdiction or fail to exercise it orexercise it illegally or improperly i.e., where an order is passed withouthearing the party sought to be affected by it or where the procedure adoptedis opposed to principles of natural justice. A caution was indicated by sayingthat the jurisdiction to issue a writ of certiorari is a supervisory one and inexercising it, the court is not entitled to act as a Court of Appeal. Thatnecessarily means that the findings of fact arrived at by the inferior court ortribunal are binding. An error of law apparent on the face of the record couldbe corrected by a writ of certiorari but not an error of fact, however, grave itmay appear to be. The rule in Yakoob’s case (AIR 1964 SC 477) whenapplied to the present facts would lead to the conclusion that the High Courtexceeded its jurisdiction in interfering with the order of the Additional DistrictJudge.

In view of the settled legal position and even if the High Court comes to theconclusion that a finding of fact is not correct in the opinion of the Court, still a Writ ofCertiorari cannot be issued. All errors in recording finding of facts are not amenableto jurisdiction. It is only grave errors apparent on the face of record which requirecorrection by the exercise of certiorari jurisdiction.

At this stage, it is necessary to consider the scope of enquiry while determining thecompensation under Section 10(3) of the Act, either by the competent authority or by the District Judge. Sub section (3) of Section 10 of the Act contains guidelines fordetermination of compensation. The compensation for damage or loss sustained bya person has to be assessed with reference to (i) the removal of trees or standingcrops; (ii) temporary severance of the land under which the pipelines have been laidand (iii) any injury to any other property whether movable or immovable. The Actprovided for acquiring the right of user, and Section 9(1) of the Act still enables theowner or occupier on the land to use the land for the same purpose for which it wasused before laying the pipelines. Therefore, ordinarily, there is no divesting of titleand the Central Government acquires the right of user for laying pipelines which isalways with reference to sub-soil rights of the owner on which, in common law theowner has no right. The sovereign alone has rights with regard to sub-soil benefits.Therefore, the Parliament has taken care while enacting Section 10 of the Act andrequires competent authority or District Judge to determine the compensation havingregard to the damage or loss caused to the right of user of the owner or occupier.There could be a situation where the entire land itself is acquired by the Governmentor the appropriate authority for petroleum works or for constructing petroleum storagefacilities, in which case the provisions of the Act have no application. A furtherreading of Section 10(1), (2) and (4) of the Act together, it becomes abundantly clearthat where the right of user of any land is vested in the Central Government, theowner or occupier is entitled to claim compensation which would be at 10% of themarket value on the date of notification. Sub-section (3)(i) of Section 10 of the Act isto a limited extent. Therefore, the market value of the land is a determining factor, butthe same cannot be the entire basis for such determination. The basis fordetermination as noticed supra is provided in Sub-section (3) of Section 10 of theAct. In the present case a reading of the impugned orders would show that the lowerCourt adverted to determination of the market value, but did not determine the loss ordamage caused to each owner or occupier with reference to the factors contained inSection 10(3) of the Act. Secondly, the learned District Judge relied on the evidenceof PW.1, ignoring Exs.B.4, B.5 and B.8, without even making reference to them.Thus, a grave error apparent on the face of record is occurred in the impugnedorders, by reason of non-consideration of the correct principles of law as well asvalid and relevant documents. The impugned orders are therefore, unsustainable.

Unlike in Land Acquisition Act, 1894 (for short ‘the LA Act’) there is no provision akinto Section 54 of the LA Act in the present Act. In view of this it would not be properfor this Court to proceed with redetermination of the compensation as is done in theLand Acquisition proceedings. It would be in the interest of the parties to remit thematter to the Court of the II Additional District Judge, Visakhapatnam, for a freshdisposal of the matter keeping in view the principles contained in Section 10 of theAct.

Accordingly, these writ petitions are allowed and the impugned orders are set aside,and all the matters are remitted to the Court of the II Additional District Judge,Visakhapatnam, with a direction to give liberty to the petitioner herein and thecontesting third respondent (owner/occupier) to lead further evidence, if any, anddispose of the matters within a period of eight weeks from the date of receipt of a copy of this order. There shall be no order as to costs.

02.12.2005

vs

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(V.V.S.RAO, J)