Parties : Kaddus Ali Versus The Gail (India) Ltd, Represented By Its Chairman & Managing Director, Having Its Headquarter At Gail Bhawan, New Delhi & Others
Appearing Advocates : For the Petitioner: N.N.B. Choudhury, N. Mahanta, N. Gautam, K.N. Choudhury, A. Hussain, M.S. Alam, Md. S. Alom, Advocates. For the Respondents: GA, Assam, R1, R. Borpujari, B.D. Chowdhury, D. Saikia, G. Baishya, SC, Gail, R.K. Deb Choudhury, Advocates, DY.S.G.I.
Date of Judgment : 16-06-2026
Head Note :-
P&MP Act - Section 10 -
Comparative Citation:
2026 GAU-AS 8658,
Judgment :-
Judgment & Order (Cav):
1. Heard Mr. K. N. Choudhury, learned Senior Counsel, assisted by Mr. A. Hussain, learned counsel for the petitioner. Also heard Mr. D. Saikia, learned Senior Counsel assisted by Mr. R. Borpujari, learned counsel for the respondent No. 1; Ms. N. Bordoloi, learned Standing Counsel, Revenue Department, for respondent No. 2; and Mr. H. Sarma, learned State Counsel for respondent Nos. 3 & 4.
2. Challenge made in this writ petition is to the judgment dated 02.01.2024, passed by the learned Additional District Judge, Barpeta, in Misc. (L.A) Case No. 16/2020, by which the claim petition of the petitioner is dismissed as premature and not maintainable by holding that the petitioner is not entitled to calculation of compensation under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ( the RFCTLARR Act, 2013, in short). The petitioner has also challenged the order dated 07.08.2020, passed by the Competent Authority, GAIL (India) Ltd. Assam, respondent No. 1 herein, rejecting his claim for grant of compensation under the RFCTLARR Act, 2013 and prayed for a direction to the respondent authorities for reassessment as per the provisions of the RFCTLARR Act, 2013 in view of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015.
3. The case of the petitioner, in brief, is that he, along with his brothers, inherited ancestral land measuring about 13 Bighas covered by Dag No. 864 under Periodic Patta No. 17, situated at Village Nichuka under Mouza Damka Chaka Baushi, Barnagar Revenue Circle, in the district of Barpeta, Assam. The land originally stood recorded in the name of their father and upon his demise, the land devolved upon the petitioner and his brothers. Following the death of one of the brothers, the petitioner become owner and possessor of one-third share of the said land, while the remaining portion is owned and possessed by the legal heirs of his deceased brother. The petitioner is regularly paying land revenue and his name has been duly recorded as a pattadar in the Jamabandi.
4. The Ministry of Petroleum and Natural Gas, Government of India, vide Notification dated 26.12.2018, published on 31.12.2018, has acquired the Right of User over land measuring 1 Bigha 17.5 Lechas covered by Dag No. 864, Periodic Patta No. 17, situated at the aforesaid revenue circle, under the provisions of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (in short, “the P&MP Act, 1962”), for the purpose of laying the Barauni-Guwahati Gas Pipeline (BGPL) by GAIL (India) Ltd. In connection therewith, a notice dated 09.08.2019 was issued by the competent authority. According to the petitioner, the said notice came to his knowledge only on 20.06.2020 and therefore he could not participate in the objection proceedings as he had not been served with the notice within time.
5. The petitioner, having come to know that the compensation will be assessed as per the provision of Section 10 of the P&MP Act, 1962, under which compensation is payable to the extent of 10% of the market value of the land along with the compensation for crops and other standing properties on the acquired land, has filed a claim petition on 23.07.2020 before the Competent Authority, GAIL (India) Ltd. with a prayer to evaluate compensation in respect of the petitioner’s acquired land under the provisions of RFCTLARR Act, 2013, keeping in view that his land will become useless permanently as well as considering the inadequacy of the P&MP Act, 1962 and the importance of applicability of RFCTLARR Act, 2013, as well as in view of the fact that there would not be any bar to apply the new law as per the provisions of Section 18 of the P&MP Act, 1962. However, the Competent Authority, vide an order dated 07.08.2020, has refused to entertain the claim of the petitioner.
6. After completion of the survey, the petitioner was informed that out of the total acquired land measuring 1 Bigha 38 Lechas covered by Dag No. 864 and Periodic Patta No. 17, his share worked out to 41 Lechas, although in the Notice dated 09.08.2019, the area of acquired land is mentioned as 1 Bigha 17.5 Lechas. Thereafter, a public notice dated 21.08.2020 was issued informing all pattadars and general public about the survey and proposed assessment of compensation under Section 10 of the P&MP Act, 1962 and the acquisition process for laying the pipeline proceeded without ventilating the grievance regarding determination of compensation. After publication of the said notice, the competent authority obtained signatures of landowners on declaration forms prepared by GAIL (India) Ltd. and called upon them to submit requisite documents. However, the petitioner did not put his signature in the said declaration form.
7. Aggrieved by the order dated 07.08.2020, the petitioner instituted a claim petition under Sections 10(2) and 10(3) of the P&MP Act, 1962 before the District Judge, Barpeta, which was registered as Misc. (L.A) Case No. 16/2020. In the said proceedings, the respondent Nos. 2, 3 and 4, namely, the Commissioner and Secretary to the Government of Assam, Revenue Department, the Deputy Commissioner, Barpeta, and the Circle Officer, Barnagar Revenue Circle, filed a joint written statement stating that they would refrain from making any comment on the contentions raised by the petitioner, which, according to the petitioner, such a stand clearly indicates absence of objection on the part of the State authorities.
8. The respondent No. 1, GAIL (India) Ltd., also filed its written statement and brought on record the communication dated 08.11.2020, wherein it shows that for the purpose of determination of compensation, the market value of the land is assessed by adopting the methodology contemplated under the First Schedule to the RFCTLARR Act, 2013. According to GAIL (India) Ltd., the market value is multiplied by a factor two, while an equivalent solatium is added to the compensation, thereby allowing the affected land-holder to get compensated @ 10% i.e. 40% of the market value declared by the District Administration. It was further stated that the said methodology had been uniformly adopted in various districts of Assam and in other projects undertaken by GAIL (India) Ltd.
9. Upon consideration of the pleadings and materials on record, the learned Additional District Judge, Barpeta, by the impugned judgment and order dated 02.01.2024, dismissed Misc. (L.A) Case No. 16/2020 as premature and not maintainable. The learned Court held, inter alia, that the petitioner had not approached the competent authority for determination of compensation in the manner contemplated under the statute; that acquisition under the P&MP Act, 1962 involved only acquisition of the Right of User and not acquisition of ownership of the land; that the land would continue to remain with the owner; that the petitioner had not sought determination of compensation but had sought direction from the Court and the competent authority. The learned Court has held that the Central Government has issued the Removal of Difficulties Order, 2015 without jurisdiction and therefore, can’t be enforced.
10. It is the contention of the petitioner that the prevailing market value of the land is approximately Rs. 30 lakh per Bigha, considering that the land is high land suitable for residential purpose as well as year-round cultivation of vegetables. The land is situated in close proximity to Barpeta town, being approximately one kilometre away from the Barpeta Town Railway Station, and is well connected by roads, thereby possessing considerable commercial and residential value. The assessment of compensation merely @ 10% of the market value, together with compensation for crops and other standing properties under Section 10 of the P&MP Act, 1962, would result in substantial financial loss. It is contended that the statutory restrictions imposed under the P&MP Act, 1962 prohibit construction of buildings or other structures, excavation of tanks, and plantation of trees over the land affected by the pipeline. Therefore, the acquired land of the petitioner would become substantially unusable for beneficial purposes after the laying of pipeline and although ownership would formally remain with him, he would effectively be deprived of meaningful enjoyment and utilization of the land.
11. Mr. K. N. Choudhury, learned Senior Counsel for the petitioner, submits that the findings recorded by the learned Court below are contrary to the pleadings and materials available on record. He submits that the petitioner, after obtaining a copy of the notice dated 09.08.2019, issued under Section 3(1) of the P&MP Act, 1962, had approached the Competent Authority seeking determination of compensation under the provisions of the RFCTLARR Act, 2013 instead of the provisions under the P&MP Act, 1962. However, the said claim was rejected by the Competent Authority by order dated 07.08.2020. Therefore, the finding of the learned Court below that the petitioner had not approached the Competent Authority for determination of compensation is ex facie erroneous.
12. Mr. Choudhury, learned Senior Counsel, submits that although Section 105(1) of the RFCTLARR Act, 2013 excludes the enactments specified in the Fourth Schedule, the Central Government, in exercise of powers under Section 113, issued the RFCTLARR (Removal of Difficulties) Order, 2015 extending the beneficial provisions relating to determination of compensation, rehabilitation and resettlement to acquisition made under the enactments specified in the Fourth Schedule, which includes the P&MP Act, 1962. Clause 2 of the RFCTLARR (Removal of Difficulties) Order, 2015 expressly provides for application of the First Schedule of the RFCTLARR Act, 2013 for determination of compensation. The validity and applicability of the RFCTLARR (Removal of Difficulties) Order, 2015 have been consistently upheld by the Courts and that the benefits relating to determination of compensation under the RFCTLARR Act, 2013 are available even in respect of acquisitions under the enactments included in the Fourth Schedule.
13. Learned Senior Counsel submits that the reliance placed by the learned Court below upon the decision of the Bombay High Court in Gangadhar Karbhari Jadhav v. Union of India is misconceived. He submits that the petitioner therein had directly invoked the writ jurisdiction under Article 226 of the Constitution of India challenging the order passed by the Competent Authority rejecting his claim for application of the RFCTLARR Act, 2013, without availing the statutory remedy before the District Judge under the provisions of the P&MP Act, 1962. He submits that the factual matrix in the present case is entirely different inasmuch as the petitioner had approached the District Judge in accordance with the statutory mechanism provided under the P&MP Act, 1962. He submits that even the learned Court below has recognized the position that an aggrieved person is required to approach the District Judge against an order of the Competent Authority. Therefore, the said decision has no application to the facts of the present case.
14. Mr. Choudhury, Senior Counsel, submits that Section 105(3) of the RFCTLARR Act, 2013 contemplated issuance of a notification extending the provisions relating to compensation, rehabilitation and resettlement to acquisitions under the enactments specified in the Fourth Schedule. Since such notification was not issued, the RFCTLARR (Amendment) Ordinance, 2014 was promulgated on 31.12.2014 extending the benefits of the Act to acquisitions under the Fourth Schedule enactments. Although the subsequent Ordinances lapsed, the Central Government, with the object of ensuring that landowners covered by the thirteen enactments specified in the Fourth Schedule were not deprived of the enhanced benefits under the RFCTLARR Act, 2013, issued the Removal of Difficulties Order, 2015. The legislative intent behind both the Ordinance and the Removal of Difficulties Order was to place all landowners whose lands are acquired under the Fourth Schedule enactments on an equal footing in the matter of compensation and other benefits.
15. Mr. Choudhury, learned senior counsel submits that the Hon'ble Supreme Court has recognized the object behind the Removal of Difficulties Order, 2015 and has observed that the intended benefits under the RFCTLARR Act, 2013 should not be taken away and the provisions of the Act must be interpreted so as to give full and meaningful effect to the legislative intent. He submits that similarly situated landowners cannot be subjected to different standards of compensation merely because acquisition is undertaken under different enactments. The principle of equality enshrined under Article 14 of the Constitution mandates that landowners whose lands are compulsorily acquired must receive similar treatment in the matter of compensation.
16. Mr. Choudhury, learned Senior Counsel, submits that the stand taken by the respondent No. 1 itself supports the petitioner's contention. Referring to the written statement filed by the Respondent No. 1, he submits that the respondent No. 1 produced a sample of award calculation prepared on the basis of the First Schedule to the RFCTLARR Act, 2013 and specifically stated that compensation was determined by applying the methodology prescribed therein, which has also been recorded by the learned Court below in the impugned judgment that compensation was calculated in terms of Schedule-I of the RFCTLARR Act, 2013. Once the respondent itself has adopted the methodology prescribed under the RFCTLARR Act, 2013 for determination of compensation, there is no justification for denying the petitioner the statutory benefits flowing from the said enactment.
17. Drawing the attention of this Court as regards the nature of rights affected by acquisition of the Right of User, Mr. Choudhury, learned senior counsel, submits that although title to the land formally remains with the landowner, the restrictions imposed under Section 9 of the P&MP Act, 1962 substantially impair the beneficial enjoyment of the property. He submits that the concept of property encompasses a bundle of rights, including the rights to possess, enjoy, use, alienate and otherwise deal with the property. He submits that the expression “property” has been held to include the aggregate of rights inhering in a person in relation to a thing and protected by law. Therefore, the severe restrictions imposed upon the use of the land after acquisition of the Right of User have a substantial adverse impact upon the petitioner's proprietary rights and such deprivation must be adequately compensated.
18. Mr. Choudhury, learned Senior Counsel submits that although the Competent Authority initially rejected the petitioner's request for determination of compensation under the RFCTLARR Act, 2013 by order dated 07.08.2020, the subsequent communication dated 08.11.2020 issued by the Competent Authority itself reveals that compensation was thereafter sought to be calculated by adopting the methodology contained in the First Schedule to the RFCTLARR Act, 2013. This subsequent development lends support to the petitioner's contention that the principles governing compensation under the RFCTLARR Act, 2013 are applicable even in acquisition under the P&MP Act, 1962.
19. Mr. Choudhury, learned Senior Counsel submits that subsequent events also demonstrate the practical consequences of acquisition of the Right of User. Referring to the Gazette Notification dated 20.04.2023 issued by the Ministry of Petroleum and Natural Gas for laying of the Paradip Numaligarh Crude Oil Pipeline (PNCPL) by Numaligarh Refinery Limited, he submits that the proposed pipeline traverses the same corridor already utilized for the Barauni-Guwahati Gas Pipeline project. The subsequent pipeline has been laid within the same 20 metre wide corridor acquired earlier without issuance of any notice to the petitioner and without payment of any additional compensation on the ground that the Right of User had already been acquired. This development clearly demonstrates the extent of restrictions imposed upon the petitioner's land and reinforces the need for fair and adequate compensation in accordance with the principles embodied in the RFCTLARR Act, 2013.
20. Mr. Choudhury, learned Senior Counsel, submits that the learned Court below wrongly relied upon the decision of the Hon'ble Supreme Court in Laljibhai Kadyabhai Savaliya & Ors v. State of Gujarat & Ors, reported in (2016) 9 SCC 791. He submits that the said decision arose out of acquisition proceedings initiated prior to the issuance of the RFCTLARR (Removal of Difficulties) Order, 2015 and did not involve any claim for extension of the benefits available under the RFCTLARR Act, 2013 to acquisitions made under the P&MP Act, 1962. The said judgment neither considered nor decided the applicability of the RFCTLARR (Removal of Difficulties) Order, 2015 and therefore, is distinguishable on facts as well as in law.
21. In support of his submission, Mr. K. N. Choudhury, learned Senior Counsel for the petitioner, has relied on the following judgments:
(i) Sunita Mehra & Anr. Vs. Union of India & Ors., reported in (2019) 17 SCC 672
(ii) Union of India & Anr. Vs. Tarsem Singh & Ors., reported in (2019) 9 SCC 304
(iii) Mahanadi Coal Fields Ltd. & Anr. Vs. Mathias Oram & Ors., reported in 2022 SCC OnLine SC 1508
22. At the outset, raising the maintainability of the present writ petition, Mr. D. Saikia, learned Senior Counsel for the respondent No. 1, submits that the petitioner has failed to exhaust the alternative statutory remedy available under law. He submits that the impugned judgment dated 02.01.2024 passed by the learned Additional District Judge is amenable to challenge by way of a regular first appeal before this Court and therefore, invocation of the writ jurisdiction under Article 226 of the Constitution of India is not warranted. He submits that it is a settled principle that where an effective and efficacious alternative remedy is available, the High Court ordinarily ought not to exercise its extraordinary jurisdiction under Article 226 of the Constitution. In support of his submission he has placed reliance of the judgement of Hon’ble supreme Court in the case of Radhey Shyam & Anr. Vs. Chhabi Nath & Ors., reported in (2015) 5 SCC 423, to project that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226 of the Constitution .
23. Mr. Saikia, learned Senior Counsel submits that the Hon’ble Supreme Court in catena of decisions has held that the rule of alternative remedy applies with greater rigour where the statute itself provides a complete mechanism for adjudication of disputes and redressal of grievances. He submits that none of the recognized exceptions to the rule of alternative remedy, such as lack of jurisdiction, violation of principles of natural justice, action in defiance of statutory provisions or invocation of repealed provisions, are attracted in the facts of the present case. Therefore, Mr. Saikia, learned Senior Counsel submits that the writ petition is founded on an erroneous interpretation of both the RFCTLARR Act, 2013 and the P&MP Act, 1962 and as such, the petitioner is not entitled to claim enhanced compensation under the RFCTLARR Act, 2013 in respect of acquisition of the Right of User under the P&MP Act, 1962.
24. On merit, Mr. D. Saikia, learned Senior Counsel, submits that the acquisition in the present case was undertaken under the provisions of the P & MP, 1962 and therefore, compensation could only be determined in accordance with the provisions of the said Act. The notification acquiring the Right of User was issued under the P&MP Act, 1962 and not under the RFCTLARR Act, 2013. Consequently, the Competent Authority could not have determined compensation under any statute other than the P&MP Act, 1962. He submits that the P&MP Act, 1962 is a self-contained and complete code governing acquisition of the Right of User for laying pipelines and the constitutional validity as well as the compensation mechanism prescribed therein have been upheld by the Hon'ble Supreme Court. The P&MP Act is a special enactment enacted with the object of facilitating transportation of petroleum and mineral products through pipelines and, unlike a conventional acquisition statute, it contemplates acquisition only of the Right of User and not acquisition of ownership of the land itself. Therefore, he submits that the Competent Authority rightly rejected the petitioner's claim seeking determination of compensation under the RFCTLARR Act, 2013.
25. Mr. Saikia, learned Senior Counsel further submits that the acquisition of the Right of User does not render the land unusable. Elaborating on the technical aspects of pipeline alignment, he submits that detailed feasibility studies are conducted before laying a pipeline, taking into account factors such as terrain, pipeline hydraulics and pressure requirements. The route is diverted wherever permanent structures, deep-rooted trees or wells are found. In the present case, no such structure existed on the petitioner's land. He submits that, after laying of the pipeline, the land continues to remain with the landowner and may still be used for agricultural and allied purposes, subject only to the limited restrictions imposed under Section 9 of the P&MP Act, 1962. Therefore, it cannot be contended that the petitioner has been deprived of the entirety of his proprietary rights.
26. Mr. Saikia, learned Senior Counsel submits that the writ petition proceeds on an erroneous interpretation of the provisions of the RFCTLARR Act, 2013. The compensation in the present case was required to be determined solely under the provisions of the P&MP Act, 1962 and the respondent authorities had followed the procedure prescribed by law and offered compensation to the petitioner, which he declined to accept. Instead, the petitioner has pursued multiple proceedings on the basis of what may be described as an incorrect interpretation of the applicable statutory provisions.
27. Referring to the letter dated 08.11.2020, the learned Senior Counsel submits that the said communication is wholly irrelevant for deciding the controversy involved in the present case in as much as the compensation in the present matter was determined for acquisition of the Right of User under the P&MP Act, 1962 and not under the RFCTLARR Act, 2013. Therefore, the petitioner cannot derive any legal advantage from the said communication.
28. Mr. Saikia, learned Senior Counsel further submits that the learned Additional District Judge has rendered a well-reasoned and legally sustainable judgment. Drawing attention to the reliefs sought in Misc. (L.A) Case No. 16/2020, he submits that the petitioner had not approached the District Judge for determination of compensation payable under the P&MP Act, 1962, rather, sought a direction requiring the competent authority to assess compensation in accordance with certain parameters allegedly flowing from the RFCTLARR Act, 2013. Such a relief falls outside the scope and jurisdiction contemplated under the provisions of the P&MP Act, 1962 and was rightly declined by the learned Court below.
29. Mr. Saikia, learned Senior Counsel submits that the challenge raised by the petitioner against the compensation mechanism under the P&MP Act, 1962 is no longer res integra. Referring to judicial pronouncement upholding the constitutional validity of the Act, he submits that the Hon'ble Supreme Court has recognized the validity of the legislative scheme under the P&MP Act, 1962. Learned Senior Counsel submits that the Hon'ble Supreme Court has categorically held that acquisition of the Right of User under the P&MP Act, 1962 amounts to acquisition of only one facet of property rights vested in the owner. The Act, therefore, provides for compensation in a manner commensurate with the nature of the right acquired. He submits that Section 10 of the Act contemplates different components of compensation which relates to actual damage, loss or injury suffered by the landowner or occupier on account of activities undertaken under Sections 4, 7 and 8 of the Act, including survey operations, excavation, laying of pipelines and maintenance activities. Such actual damage, loss or injury is required to be compensated in full.
30. Mr. Saikia , learned Senior Counsel further submits that, apart from compensation for actual damage, the Act also provides additional compensation linked to the market value of the land for acquisition of the Right of User. He submits that the principles governing determination of compensation under the Act have been clearly laid down by Parliament and have been held by the Hon'ble Supreme Court to be fair, reasonable and neither arbitrary nor illusory. Since ownership and possession of the land remain with the landowner, subject only to certain restrictions relating to permanent constructions, excavation and plantation of trees, the compensation structure under the P&MP Act, 1962 is proportionate to the nature of the rights acquired. Therefore, he submits that the writ petition may be dismissed and the judgment and order dated 02.01.2024 passed by the learned Additional District Judge, Barpeta, in Misc. (L.A) Case No. 16/2020 be affirmed. In support of his submissions, Mr. D. Saikia, learned Senior Counsel has relied on the judgment of Hon’ble Supreme Court in the case of Laljibhai Kadabhai Savaliya & Ors. Vs. State of Gujarat & Ors., reported in (2016) 9 SCC 791.
31. Rejoining his submission, Mr. Choudhury, learned Senior Counsel for the petitioner, submits that the present writ petition is maintainable as there is no provision for Appellate Forum in the P&MP Act, 1962 to challenge the Judgment and Order passed by the learned District Judge and as such, there is no alternative efficacious available remedy. The learned Trial Court has no Civil Jurisdiction as per Section 14 of the P&MP Act, 1962, more so, in the present case a pure question of law is involved.
32. Due consideration has been extended to the submissions advanced by the learned counsel for the parties and also have perused the materials available on record.
33. The Government of India, through the Ministry of Petroleum and Natural Gas, vide Notification dated 26.12.2018, has acquired the Right of User over land measuring 1 Bigha 17.5 Lechas covered by Dag No. 864, Periodic Patta No. 17, under the provisions of the P&MP Act, 1962, for the purpose of laying the Barauni-Guwahati Gas Pipeline (BGPL) by GAIL (India) Ltd, respondent No. 1 herein. The petitioner, having come to know that the compensation will be assessed as per the provision of Section 10 of the P&MP Act, 1962, under which compensation is payable to the extent @ 10% of the market value of the land along with the compensation for crops and other standing properties on the acquired land, has filed a claim petition on 23.07.2020 before the Competent Authority, for determination of compensation the RFCTLARR Act, 2013 which was rejected by the Competent Authority, vide an order dated 07.08.2020. Aggrieved by the order dated 07.08.2020, the petitioner instituted a claim petition being Misc. (L.A) Case No. 16/2020 under Sections 10(2) and 10(3) of the P&MP Act, 1962 before the District Judge, Barpeta.
34. Records reveal that in the said proceedings, the respondent Nos. 2, 3 and 4, filed a joint written statement stating that they would refrain from making any comment on the contentions raised by the petitioner. The respondent No. 1, also filed its written statement and brought on record the communication dated 08.11.2020 which reflects that for the purpose of determination of compensation, the market value of the land is assessed by adopting the methodology contemplated under the First Schedule to the RFCTLARR Act, 2013. The market value is multiplied by a factor two, while an equivalent solatium is added to the compensation, thereby allowing the affected landholder to get compensated @ 10% i.e. 40% of the market value declared by the District Administration. It has been further stated that the said methodology had been uniformly adopted in various districts of Assam and in other projects undertaken by respondent No. 1.
35. In the course of the proceedings, the petitioner adduced evidence on affidavit and exhibited certain documents and was duly cross-examined by the respondent No. 1. However, all the respondents have declined to adduce any evidence. Upon consideration of the pleadings and materials on record, the learned Additional District Judge, Barpeta, by the impugned judgment and order dated 02.01.2024, dismissed the claim petition as premature and therefore not maintainable by holding, inter alia, that the petitioner had not approached the competent authority for determination of compensation in the manner contemplated under the statute; the acquisition under the P&MP Act, 1962 involved only acquisition of the Right of User and not acquisition of ownership of the land; the land would continue to remain with the owner and the petitioner had not sought determination of compensation but had sought direction from the Court and the competent authority. The Additional District Judge has held that the Central Government has issued the RFCTLARR (Removal of Difficulties) Order, 2015 without jurisdiction and as such same cannot be enforced.
36. The primary issue which engaged the attention of this Court is as regards the applicability of RFCTLARR Act, 2013 in the cases of acquisition of the Right of User on land under P&MP Act, 1962 in view of the RFCTLARR (Removal of Difficulties) Order, 2015, which entends the beneficial provisions relating to determination of compensation, rehabilitation and resettlement to acquisition made under the enactments specified in the Fourth Schedule to the RFCTLARR Act, 2013.
37. The acquisition of right of user on land for laying pipelines for transport of petroleum and minerals is regulated by the Petroleum and Minerals Pipelines (Acquisition of right of User in Land) Act, 1962. The procedure for acquisition is provided under Section 3 to 6. Section 7 provides for the right of user in any land in the central government or in the state government or corporation under Section 6. Section 8 provides the power to enter land for inspection whereas Section 9 puts restriction regarding the use of land.
38. Sections 7, 8 & 9 provides as under:
“7. Central Government or State Government or corporation to lay pipelines.-(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-
(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:
Provided that no pipeline shall be laid under
(a) any land which, immediately before the date of the notification under subsection (1) of section 3, was used for residential purposes;
(b) any land on which there stands any permanent structure which was in existence immediately before the said date;
(c) any land which is appurtenant to a dwelling house; or (d) any land at a depth which is less than one metre from the surface;
[(ia) for laying pipelines for the transport of petroleum, it shall be lawful for any person authorised by the Central Government or such State Government or corporation to use such land for laying pipelines for transporting any mineral and where the right of user in any land has so vested for laying pipelines for transporting any mineral, it shall be lawful for such person to use such land for laying pipelines for transporting petroleum or any other mineral; and.]
(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.
(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.
8. Power to enter land for inspection, etc.- For maintaining, examining, repairing, altering or removing any pipelines, or for doing any other act necessary for the utilisation of the pipelines or for the making of any inspection or measurement for any of the aforesaid purposes, any person authorised in this behalf by the Central Government, the State Government or the corporation, as the case may be, may, after giving reasonable notice to the occupier of the land under which the pipelines has been laid, enter therein with such workmen and assistants as may be necessary:
Provided that, where such person is satisfied that an emergency exists no such notice shall be necessary:
Provided further that, while exercising any powers under this section, such person or any workmen or assistant of such person, shall cause as little damage or injury as possible to such land.
9. Restrictions regarding the use of land.- (1) The owner or occupier of theland 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 subsection (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 pipelines 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.
1[(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,-
(a) constructs any building or any other structure, or
(b) constructs or excavates any well, tank, reservoir or dam, or
(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.]”
39. Section 10 provides for payment of compensation for any damage, loss or injury sustained by any person interested in the land and procedure thereof, which is reproduced herein below:
“10. Compensation.-(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.
(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 that District Judge.
(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—
(i) the removal of trees of standing crops, if any, on the land while exercising the power under section 4, section 7 or section 8;
(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
(iii) any injury to any other property, whether movable or immovable , or the earnings of such persons caused in any other manner:
Provided that in determining the 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.
(4) Where the right of user of any land has vested in the Central Government, the State Government or the corporation , 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.
(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 is not acceptable to either of the parties, it shall, on application by either of the parties to the District Judge referred to in sub-section (2), be determined by that District Judge.
(6) The decision of the District Judge under sub-section (2) or subsection (5) shall be final.”
40. Bare reading of the above provision shows that on acquisition of the right of user on land, any damage, loss or injury is sustained by any person interested in the land, the Central Government, the State Government or the corporation, shall be liable to pay compensation, the amount of which shall be determined by the competent authority. If the amount of compensation determined by the competent authority is not acceptable to either of the parties, the amount of compensation shall, on application by either of the parties to the District Judge, determined by that District Judge and shall have due regard to the damage or loss sustained by any person interested in the land by reason of the removal of trees of standing crops, 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 any injury to any other property, whether movable or immovable, or the earnings of such persons caused in any other manner. In addition to the compensation, payable, 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 @ 10% of the market value of that land on the date of the notification. 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 is not acceptable to either of the parties, it shall, on application by either of the parties to the District Judge shall be determined and the decision of the District Judge shall be final.
41. To appreciate further, it is apposite to consider the relevant provisions of the RFCTLARR Act, 2013, the relevant Sections are quoted herein below:
“Section 105. Provisions of this Act not to apply in certain cases or to apply with certain modifications.- (1) Subject to sub-section (3), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule.
(2) Subject to sub-section (2) of section 106, the Central Government may, by notification, omit or add to any of the enactments specified in the Fourth Schedule.
(3) The Central Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be.
(4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament.
Section 113. Power to remove difficulties.- (1) If any difficulty arises in giving effect to the provisions of this Part, the Central Government may, by order, make such provisions or give such directions not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for the removal of the difficulty:
Provided that no such power shall be exercised after the expiry of a period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.”
42. By an order dated 28.08.2015, the Central Government keeping in view the difficulties, has decided to extend the beneficial advantage to the land owners and uniformly apply the beneficial provisions of the RFCTLARR Act, 2013 relating to the determination of compensation and rehabilitation and resettlement to the cases of land acquisition under the said enactments in the interest of the land owners. Therefore, in exercise of the powers conferred under sub-section (1) of Section 113 of the RFCTLARR Act, 2013 has passed the said order to remove the difficulties. The order dated 28.08.2015 is reproduced herein under:
“MINISTRY OF RURAL DEVELOPMENT
ORDER
New Delhi, 28-8-2015
S.O. 2368(E).— Whereas, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013) (hereinafter referred to as the RFCTLARR Act) came into effect from 1st January, 2014;
And whereas, sub-section (3) of Section 105 of the RFCLTARR Act provided for issuing of notification to make the provisions of the Act relating to the determination of the compensation, rehabilitation and resettlement applicable to cases of land acquisition under the enactments specified in the Fourth Schedule to the RFCTLARR Act;
And whereas, the notification envisaged under sub- section (3) of Section 105 of RFCTLARR Act was not issued, and the RFCTLARR (Amendment) Ordinance, 2014 (9 of 2014) was promulgated on 31st December, 2014, thereby, inter-alia, amending Section 105 of the RFCTLARR Act to extend the provisions of the Act relating to the determination of the compensation and rehabilitation and resettlement to cases of land acquisition under the enactments specified in the Fourth Schedule to the RFCTLARR Act;
And whereas, the RFCTLARR (Amendment) Ordinance, 2015 (4 of 2015) was promulgated on 3rd April, 2015 to give continuity to the provisions of the RFCTLARR (Amendment) Ordinance, 2014;
And whereas, the RFCTLARR (Amendment) Second Ordinance, 2015 (5 of 2015) was promulgated on 30th May, 2015 to give continuity to the provisions of the RFCTLARR (Amendment) Ordinance, 2015 (4 of 2015);
And whereas, the replacement Bill relating to the RFCTLARR (Amendment) Ordinance, 2015 (4 of 2015) was referred to the Joint Committee of the Houses for examination and report and the same is pending with the Joint Committee;
As whereas, as per the provisions of article 123 of the Constitution, the RFCTLARR (Amendment) Second Ordinance, 2015 (5 of 2015) shall lapse on the 31st day of August, 2015 and thereby placing the land owners at the disadvantageous position, resulting in denial of benefits of enhanced compensation and rehabilitation and resettlement to the cases of land acquisition under the 13 Acts specified in the Fourth Schedule to the RFCTLARR Act as extended to the land owners under the said Ordinance; And whereas, the Central Government considers it necessary to extend the benefits available to the land owners under the RFCTLARR Act to similarly placed land owners whose lands are acquired under the 13 enactments specified in the Fourth Schedule; and accordingly the Central Government keeping in view the aforesaid difficulties has decided to extend the beneficial advantage to the land owners and uniformly apply the beneficial provisions of the RFCTLARR Act, relating to the determination of compensation and rehabilitation and resettlement as were made applicable to cases of land acquisition under the said enactments in the interest of the land owners;
Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 113 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the Central Government hereby makes the following Order to remove the aforesaid difficulties, namely;-
1. (1) This Order may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015.
(2) It shall come into force with effect from the 1st day of September, 2015.
2. The provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to all cases of land acquisition under the enactments specified in the Fourth Schedule to the said Act.”
43. Perusal of the above order shows that the Central Government, in exercise of powers under Section 113, issued the RFCTLARR (Removal of Difficulties) Order, 2015 extending the beneficial provisions relating to determination of compensation, rehabilitation and resettlement to acquisition made under the enactments including the P&MP Act, 1962, specified in the Fourth Schedule. The RFCTLARR (Removal of Difficulties) Order, 2015 expressly provides for application of the Fourth Schedule of the RFCTLARR Act, 2013 for determination of compensation, although Section 105(1) of the RFCTLARR Act, 2013 excludes the enactments specified in the Fourth Schedule. Therefore, it cannot be said that the Central Government has issued the RFCTLARR (Removal of Difficulties) Order, 2015 without jurisdiction as section 113 explicitly empowers the Central Government to make order to remove difficulty and as such the finding of the Additional District Judge is erroneous.
44. Upon consideration, it is noticed that the legislative intent behind both the Ordinance and the Removal of Difficulties Order was to place all landowners whose lands are acquired under the Fourth Schedule enactments on an equal footing in the matter of compensation and other benefits. Section 105(3) of the RFCTLARR Act, 2013 contemplated issuance of a notification extending the provisions relating to compensation, rehabilitation and resettlement to acquisitions under the enactments specified in the Fourth Schedule. Since such notification was not issued, the RFCTLARR (Amendment) Ordinance, 2014 was promulgated on 31.12.2014 extending the benefits of the Act to acquisitions under the Fourth Schedule enactments. Although the subsequent Ordinances lapsed, the Central Government, with the object of ensuring that landowners covered by the thirteen enactments specified in the Fourth Schedule were not deprived of the enhanced benefits under the RFCTLARR Act, 2013, issued the said Removal of Difficulties Order, 2015. Thus, for acquisition of land and acquisition for right of user on land under all the 13 enactments including the P & MP Act, 1962, the methodology under the RFCTLARR Act, 2013 would apply as the P & MP Act, 1962 is listed at serial 8 of the fourth schedule to the RFCTLARR Act, 2013 amongst 13 enactments.
45. Regard being had to the maintainability of the present writ petition, as raised by Mr. D. Saikia, learned Senior Counsel for the respondent No. 1, that the petitioner has failed to exhaust the alternative statutory remedy available under law on the ground that the impugned judgment dated 02.01.2024 passed by the Additional District Judge is amenable to challenge by way of a regular first appeal before this Court and therefore, invocation of the writ jurisdiction under Article 226 of the Constitution is not warranted, is considered for rejection for the simple reason that the Additional District Judge does not exercise civil jurisdiction as a Civil Judge but has exercised power and authority as an authority under the P & MP Act, 1962, against which no appeal would lie in view of the fact that under section 10(6) of the Act provides that the decision of the District Judge shall be final as well as the jurisdiction of civil court is barred under the Act. There would be no quarrel to the settled law that judicial orders of civil courts are not amenable to a writ jurisdiction and that where an effective and efficacious alternative remedy is available, the High Court ordinarily would not exercise its extraordinary jurisdiction under Article 226 of the Constitution. In the case in hand, a decision has been rendered by the Additional District Judge as an authority under the Act. Therefore, the case of Radhey Shyam (supra) as relied by the Mr. Saikia, learned Senior counsel would not come to the aid of the petitioner as in that case the decision of the civil court was put to challenge under Article 226 of the constitution. Thus, the present writ petition is maintainable.
46. As regards the submission of the Mr. Saikia, learned senior counsel that the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015, employed words ”the acquisition of the land” and “not acquisition for right of user on land” as contemplated under the P & MP Act, 1962, therefore, would not apply acquisition for right of user on land under the P & MP Act, 1962, no doubt, it is true that “acquisition of land” and “acquisition for right of user on land” connotes two different meanings, however, as noted above, the legislative intent behind the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015, was to place all landowners whose lands are acquired under the Fourth Schedule enactments on an equal footing in the matter of compensation and other benefits with the object of ensuring that landowners covered by the thirteen enactments specified in the Fourth Schedule were not deprived of the enhanced benefits under the RFCTLARR Act, 2013. Therefore, though distinction can be made of the “acquisition of land” and “acquisition for right of user on land” under the P & MP Act, 1962, the applicability of the RFCTLARR Act, 2013 cannot be denied particularly, on issuance of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015, or else same would defeat the very purpose of issuance of the said Order, 2015.
47. Coming to authorities relied on by the parties, it is seen that in case of Sunita Mehra (supra), the Hon’ble Supreme court directed that the award of solatium and interest on solatium should be made effective only to proceedings pending on the date of the High Court order in Golden Iron & Steel forging v. Union of India i.e. 28.03.2008 and the concluded cases should not be opened and held that as for future proceedings, the position would be covered by the provisions of the RFCTLARR Act, 2013 to acquisitions under the National Highways Act, 1956. Similarly, in Tarsem Singh (supra), the provisions of the RFCTLARR Act, 2013, particularly, the solatium and interest, has been held to be applied and payable to the persons whose lands are acquired for the purpose of national highways as the Central Government has considered it necessary to extend the benefits available landowners whose lands are acquired under the 13 enactments in the Fourth Schedule to the RFCTLARR Act, 2013. In the case of Mahanadi Coal Fields Ltd. (supra), it has been held that persons whose lands were acquired for Mahanadi Coalfields under the Coal Bearing Areas Acquisition and Development Act, 1957 are entitled to compensation under the RFCTLARR Act, 2013 and concluded that the RFCTLARR Act, 2013 cannot apply prior to the date it was brought into force i.e., before 01.01.2014 but it applies from the date the Central Government issued a notification bringing into force the provisions of the First, Second and Third Schedules to the enactment specified in the Fourth Schedule.
48. In Laljibhai Kadabhai Savaliya (supra), the Hon’ble Supreme Court has considered the legislative scheme under the P&MP Act, 1962 and upheld its constitutional validity. Careful perusal of the above authority clearly shows that the Hon’ble Supreme Court has recognized that although the land could be acquired outright for laying such pipelines under the Land Acquisition, such procedure for acquisition would be costly. If the lands were to be acquired outright, it would lead to tremendous increase in costs finally reflecting in escalation of the costs of petroleum or minerals. At the same time, if at every stage outright acquisition is to be insisted upon, many agriculturists would stand deprived of their holdings causing great prejudice. It has been observed that the Act is designed to achieve the purpose of laying of the pipelines for petroleum and minerals as efficient and cheap means of transportation and distribution of petroleum and petroleum products. It has also observed that provision of P & MP Act shall be in addition and not in derogation to any other law for the time being in force relating to acquisition of land. Thus, in a given case where the circumstances and the occasions so demand, a resort could still be taken to acquire the lands by relying upon the general law of acquisition under the provisions of the Land Acquisition. It further held that the right of user sought to be taken over under the provisions of the P&MP Act amounts to acquisition of one of the facets of property rights which inher in the owner/occupier. The idea is to compensate the owner/occupier for actual damage, loss or injury sustained by him as a result of the operations carried out. The expression “in addition to the compensation, if any, payable under sub-section (1)” clearly shows the intent that the compensation for acquisition of right of user shall be in addition to the actual damage/loss or injury.
49. In the present case, issue is as to whether the provisions of the RFCTLARR Act, 2013 would apply in cases of acquisition of right of user on land under the P&MP Act, 1962 in view of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015, which this court has opined in affirmative (supra) as the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015, has been passed to extend the benefits available to the landowners whose lands are acquired under 13 enactments in the Fourth Schedule to the RFCTLARR Act, 2013. Thus, the above authority would not support the case of the respondent No. 1 as the applicability of the RFCTLARR Act, 2013 has not been considered in that case.
50. As noted above, Section 113 of the RFCTLARR Act, 2013 empowers the Central Government to make order for removal of difficulties pursuant to which the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015, has been made extending the benefits available to landowners whose lands are acquired under the 13 enactments in the Fourth Schedule to the RFCTLARR Act, 2013. The Fourth Schedule to the RFCTLARR Act, 2013 has enlisted 13 enactments and PMP Act, 2013 is at serial no. 8. It is by virtue of such power vested, the order has been passed on 28.08.2015 in exercise of the power under sub Section 1 of Section 113 of LARR Act, 2013 bringing within the sweep of determination of compensation under 13 enactments including the P & MP Act, 1962 by applying the provisions of RFCTLARR Act, 2013. Thus, the competent authority would require to apply the provisions of the RFCTLARR Act, 2013 in view of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015, for determination of compensation even for acquisition of the right of user on land under the P & MP Act, 1962.
51. In view of what has been discussed herein above, this Court is of the considered view that for determination of compensation for acquisition of the right of user on land under the P & MP Act, 1962, the provisions and methodology under the RFCTLARR Act, 2013 would apply by virtue of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015, which explicitly bringing within the sweep of determination of compensation under the P & MP Act, 1962 by applying the provisions of the RFCTLARR Act, 2013. Accordingly, the competent authority is directed to determine the compensation in accordance with the provisions of the RFCTLARR Act, 2013 particularly, solatium and interest.
52. Consequently, the impugned judgment dated 02.01.2024, passed by the learned Additional District Judge, Barpeta, in Misc (LA) Case No. 16/2020, the order dated 07.08.2020, passed by the Competent Authority, are hereby set aside and quashed.
53. Writ petition stands allowed and disposed of, accordingly. Cost(s) made easy.
