Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 18668 OF 2023 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------------- AFR Kabiraj Samal ..… Petitioner -Versus- Union of India and others ….. Opp. Parties For Petitioner : M/s S.B. Mohanty, S. Mohapatra and B.B. Mohapatra, Advocates For Opp. Parties : Mr. P.K. Parhi, DSGI along with Mr. B.K. Parhi, CGC [O.Ps.No.1 to 4] Mr. L. Samantray, Addl. Government Advocate [O.Ps.No.5 to 7] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE M.S. RAMAN Date of hearing and judgment: 23.06.2023 // 2 // DR. B.R. SARANGI, J. The petitioner, by means of this writ petition, seeks to quash the order dated 11.11.2022 passed by the Deputy General Manager, Gas Authority of India Limited (GAIL) under Annexure-14, by which the representation of the petitioner claiming enhanced compensation in respect of the land sold at Mouza- Balaramprasad, Tahasil-Banarpal, District-Angul for establishment of Intermediate Pigging Station-cum- Receiving Terminal of GAIL (India) has been rejected by stating that land owners are not entitled for any enhanced compensation as well as rehabilitation and resettlement benefits, as claimed. 2. The factual matrix of the case, in a nutshell, is that the Government of India, in order to consolidate and comprehend a suitable legislation regarding installation of gas pipeline or the station controlling the petroleum and mineral products brought out an Act in the Parliament called “Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962”, wherein the provisions were framed in a hierarchical manner describing the // 3 // application of the Act, manner of acquisition, calculation of compensation and taking over the provisions of the land and also declaration of acquisition of right of user over the schedule land. In terms of such provision, GAIL authority in respect of Jagispur, Haladia, Bokaro, Dhamsara Gas pipeline project issued a notice on 25.12.2017 intending to acquire the land in respect of Kuspangi mouza under the Tahasil of Banarpal. After the acquisition proceeding as undertaken under Section 3(1) of the Petroleum and Minerals Pipelines Act, 1962, on payment of proper compensation, the right of user was exercised over the schedule property of Puspangi mouza and the conditions to be abide were properly implementation. 2.1 Thereafter, the Land Acquisition Collector, Angul, vide letter dated 08.11.2018, issued a notice to the petitioner and other affected persons conveying the decision that the ensuring meeting to be held on 13.11.2018 for assessment of compensation by the District Compensation Advisory Committee was // 4 // postponed and later date shall be intimated through official letter. Consequentially, on 20.11.2018, the Land Acquisition Collector intimated the petitioner and others convening the decision that on 27.11.2018 a meeting shall be held by District Compensation Advisory Committee for purchase of Ac.2.64 decimals of land from the land owners directly for construction of Gas Pipeline Intermediate Pigging Station over Balaramprasad mouza. Accordingly, the land of the petitioner bearing plot nos.4877, 4833, 4882, 4882/14582, 4881, 4884, 4885 and 4858 and 4859 in Balaramprasad village were intended to be purchased by the GAIL authority. Thereafter, demarcation of the schedule land was made and taking into consideration the cost of area in respect of the plots, the General Manager (Construction) GAIL India Ltd., vide letter dated 04.12.2018, calculated the cost of such plots to be Rs.11.3 crores and intended for acquiring the lands for Angul Receiving Terminal through negotiation and direct purchase system. As such, the same was implemented and the lands were purchased // 5 // and the same was registered in favour of GAIL India Ltd. on receipt of the amount by the petitioner. A report was furnished by the D.S.R., Angul to that extent and on that basis the Land Acquisition Officer, Angul prepared a chart on computation of compensation of village Balaramprasad and prepared a figure towards the market value of the land amounting to Rs.1,64,81,142/- and giving solatium in the figure of 100% and the total cost of the land (Ac.2.64 decimals) came to Rs.3,69,17,758/-. 2.2 After the land was purchased by the opposite parties and the same was taken over on payment of consideration amount and due execution of sale deed, the petitioner claimed that he should be extended with the benefits under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter to be referred as “RFCTLARR Act, 2013” for short). The same having been denied, earlier the petitioner had approached this Court by filing W.P.(C) No. 17380 of 2022, which was disposed of vide order dated 26.07.2022 directing the Deputy // 6 // General Manager (GAIL) to redress the grievance of the petitioner on his fresh representation by giving emphasis to RFCTLARR Act, 2013 and also RFCTLARR (Removal of Difficulties) Order, 2015. In compliance to the same, the Deputy General Manager, Gas Authority of India Limited (GAIL) has passed the order dated 11.11.2022 under Annexure-14 rejecting the claim of the petitioner. Hence, this writ petition. 3.
Legal Reasoning
Mr. S.B. Mohanty, learned counsel for the petitioner vehemently contended that the land having been acquired for the purpose of drawing pipelines, the provisions of the RFCTLARR Act, 2013 are applicable and, as such, the benefit of giving employment under the RFCTLARR Act, 2013 should have been extended to the petitioner. It is contended that since the grievance of the petitioner was not considered by the authority, he filed representation before the authority, but the Deputy General Manager, Gas Authority of India Limited (GAIL) rejected the same vide order dated 11.11.2022 under Annexure-14. Thereby, the order impugned passed by the // 7 // authority cannot be sustained in the eye of law and the same should be quashed. 4. Mr. L. Samantray, learned Addl. Government Advocate appearing for the State-opposite parties contended that the contention raised by learned counsel for the petitioner is contrary to the records available. In the instant case, the lands were not acquired by the authority, rather the petitioner had sold the lands to the GAIL. Therefore, the provisions of the RFCTLARR Act, 2013 have no application. It is contended that having sold the land on receiving the consideration amount, the claim made by the petitioner for grant of R&R benefit has absolutely no nexus. Consequentially, he justifies the order dated 11.11.2022 passed by the Deputy General Manager, Gas Authority of India Limited (GAIL) under Annexure-14 and states that the petitioner is not entitled
Decision
to the relief, as sought in the writ petition. 5. This Court heard Mr. S.B. Mohanty, learned counsel for the petitioner and Mr. L. Samantray, learned // 8 // Addl. Government Advocate appearing for the State- opposite parties in hybrid mode and perused the record. Since it is a certiorari proceeding, on the basis of the pleadings available on record and after going through the reasoned order passed by the authority under Annexure- 14, the matter has been heard and disposed of finally with the consent of learned counsel for the parties at the stage of admission. 6. Before delving into the merits of the case in hand, Mr. S.B. Mohanty, learned counsel appearing for the petitioner, vehemently contended that the land has been acquired by the opposite party, therefore, he is entitled to get higher compensation. But on perusal of the record, it appears that the contention of learned counsel for the petitioner is not correct. Rather, it indicates that the land has been sold by the petitioner on receipt of the consideration money after execution of the sale deed. Therefore, the claim of higher compensation, three years after the sale of the land, may not have any justification. But learned counsel appearing for the petitioner is // 9 // confusing with regard to “acquisition of the land” vis-à-vis “Sale”. The plain and simple meaning of “acquisition” means gaining of possession or control. If the State acquires property for a public purpose under statutory powers, this is described as acquisition of land. In State of Kerala v. Koliyat Estates, (1999) 8 SCC 419, while interpreting the word, “acquisition”, the apex Court held that “acquisition” means the act of becoming the owner of certain property. The statutory process by which the State becomes the owner of the property cannot be understood as different from acquisition made by the State. Similarly, in R.L. Jain v. DDA, (2004) 4 SCC 79, the apex Court held that “acquisition” means taking not by voluntary agreement, but by authority of an act of Parliament and by virtue of the compulsory powers thereby conferred. In case of acquisition, the property is taken by the State permanently and the title to the property vests in the State. // 10 // 7. Now coming to the question of “Sale”, as prescribed under Section 54 of the Transfer of Property Act, “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. As per Section 77 of the Indian Contract Act, “Sale” is the exchange of property for a price. It involves the transfer of the ownership of the thing sold from the seller to the buyer. Even sale has been defined under various Acts, but the “Sale” with grammatical variations and cognate expression, means any transfer of property in goods by one person to another by cash or deferred payment or for any other valuable consideration, which includes other conditions. While considering Section 2 (28) of the A.P. Value Added Tax Act, the apex Court in State of A.P. v. Larsen & Turbro Ltd., (2008) 9 SCC 191, held that “Sale” with all its grammatical variations and cognate expressions means every transfer of the property in goods // 11 // (whether as such goods or in any other form in pursuance of a contract or otherwise) by one person to another in the course of trade or business, for cash, or for deferred payment or for any other valuable consideration or in the supply or distribution of goods by a society (including a cooperative society), club, firm or association to its members, but does not include a mortgage, hypothecation or pledge of, or a charge on goods. On consideration of Section 2 (n) of A.P. General Sales Tax Act, 1957, in the case of Tata Consultancy Services v. State of A.P., (2005) 1 SCC 308, the apex Court held that a transfer of right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration shall be deemed to be a “sale”. 8. Regard may also be had to definition clause contained in Article 366 (29A) of the Constitution of India. “Sale” having been effected by execution of “sale deed” that itself means an agreement to sell relating to // 12 // immovable property with transfer of possession to the vendee comes within the ambit of the expression ‘ sale deed’ for the purpose of stamp duty and penalty. 9. Taking into consideration the two different meaning attached to word “acquisition of land” and “Sale”, it is made clear that both bears distinct and separate meaning and admittedly the petitioner has sold the land in favour of the opposite parties by execution of sale deed, meaning thereby immovable property was transferred along with transfer of possession, in favour of the opposite parties. That itself is conclusive one that the petitioner has ceased his right over the property after the execution of the sale deed on receipt of the consideration money. Therefore, claim of higher compensation on acquisition of land is absolutely is misleading statement made by learned counsel for the petitioner. Thereby, the petitioner has not approached this Court with clean hand. // 13 // 10. In State of Haryana v. Karnal Distillery, AIR 1977 SC 781, the apex Court refused to grant relief on the ground that the applicant had misled the Court. In Chancellor v. Bijayananda Kar, AIR 1994 SC 579, the apex Court held that a writ petition is liable to be dismissed on the ground that the petitioner did not approach the Court with clean hands. Taking into consideration the above judgments, this Court, in Netrananda Mishra v. State of Orissa, 2018 (II) OLR 436, came to a conclusion in paragraph-26 of the said judgment and held as under:- “………..For suppression of facts and having not approached this Court with a clean hand, the encroacher is not entitled to get any relief, particularly when the valuable right accrued in favour of the petitioner is being jeopardized for last 43 years for no fault of him, on which this Court takes a serious view…………” Therefore, applying the above ratio to the present case, this Court is of the considered view that the petitioner has not approached this Court with clean hand. The same has also been taken note of by this Court in the case of State // 14 // of Odisha and others v. Lalat Kishore Mohapatra and Anr., 2022 (Supp.) OLR 970. 11. On perusal of records, it reveals that the lands of the petitioner situated in mouza-Balaramprasad in the district of Angul were purchased by the GAIL in March, 2019 by paying consideration money. Initially, an agreement was executed between the parties and thereafter the same was registered in March, 2019. As such, the lands were purchased on direct negotiation between the GAIL and the petitioner. But after receiving the consideration money and after lapse of more than three years, the petitioner approached this Court by filing W.P.(C) No. 17380 of 2022, which was disposed of vide order dated 26.07.2022 directing the Deputy General Manager (GAIL) to redress the grievance of the petitioner on his fresh representation by giving emphasis to RFCTLARR Act, 2013 and also RFCTLARR (Removal of Difficulties) Order, 2015. In compliance to the same, the // 15 // Deputy General Manager, GAIL considered the grievance of the petitioner by referring to the fact mentioned in the representation, that the petitioner has suffered due to less compensation that would be payable to him under the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 read with the guidelines dated 28.08.2015 issued by the Govt. of India, Ministry of Rural Development, and also contention raised that the GAIL should not have resorted to the direct purchase in accordance with the circular dated 31.03.2014 issued by the Govt. of Odisha. But fact remains, the circular issued by the Govt. of Odisha on 31.03.2014 enumerates the instructions regarding direct purchase of private land for social infrastructure development project for direct negotiation. Further, the guidelines dated 28.08.2015 of the Ministry of Rural Development, Govt. of India provides to extend the provisions 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 // 16 // accordance with the Third Schedule shall apply to all cases of land acquisition under the enhancements specified in the Fourth Schedule to the RFCTLARR Act, 2013. As such, the lands have been purchased by the GAIL in terms of the Schedules First, Second and Third of RFCTLARR Act, 2013 and circular dated 28.08.2015 issued by the Ministry of Rural Development. Therefore, once the sale has already been done and the petitioner has already received the entire amount, in that case, question of re-opening of the matter once again at a belated stage does not arise. By way of approaching this Court in filing this writ petition, the petitioner cannot invoke the jurisdiction of this Court for reopening of the matter once again which has concluded for all times to come. 12. Furthermore, in compliance of the order passed by this Court, GAIL has already considered the grievance of the petitioner by giving due notice and on 15.10.2022 all the land owners, including the petitioner and some of the authorized representatives, had appeared before the // 17 // authority for hearing. After giving due opportunity, the authority passed a detailed and reasoned order stating inter alia that GAIL had a requirement of land for establishment of receiving terminal in the vicinity of Angul for the Dhamra-Angul Pipiline Project. The land required was limited being around Ac.2.5 decimals. In view of the limited extent of land required, it was considered to opt for direct purchase instead of acquisition under the RFCTLARR Act, 2013. Consequentially, a committee was formed by GAIL for negotiating with the land owners of village Balaramprasad. The said committee approached the land owners for negotiations on 17.02.2018. The land owners demanded an abnormally high value of Rs.4,00,000/- per decimal of agricultural land and also submitted a written representation in that regard. In view of the exorbitant demand, GAIL approached the Angul District Administration for calculation of market value of agricultural land at village Balaramprasad. The Land Acquisition Officer, Angul assessed the market value and compensation payable in terms of Sections 26 to 30 of the // 18 // RFCTLARR Act, 2013 by considering the benchmark value, sales statistics, radial distance, additional market value at the rate of 12% per annum and 100% solatium etc. The compensation was assessed at Rs.1,39,83,999/- per acre as per the computation made therein. Accepting such determination of land value, the average sale price comes to Rs.62,42,857/- per acre for S.J.I. kisam of land. Taking into consideration the computations the market value of Ac.2.64 decimals comes to Rs.3,69,17,758/-, as the market value of Ac.1.00 comes around Rs.1,39,83,999/-. 13. Thereafter, the District Compensation Advisory Committee which was chaired by Addl. District Magistrate, Angul called a meeting on 13.11.2018 between the officials of GAIL and the land owners for facilitating a consensus amongst the parties, but the same was postponed to 27.11.2018. On 27.11.2018, the Land Acquisition Officer explained that the claim of the land owners, viz., Rs.4,00,000/- per decimal is very high and he revealed that fair compensation payable for the // 19 // land would be Rs.1,39,83,999/- per acre considering the benchmark value, sales statistics, radial distance, additional market value @ 12% and 100% solatium etc., but the land owners were not satisfied. Thereafter, on the next meeting of the District Compensation Advisory Committee, it was made clear to the petitioner/land owners that there will not be any rehabilitation and resettlement benefit for sale of land. Subsequently, negotiation was continued with the land owners and an agreement for sale was executed between GAIL on the one hand and the land owners represented through Jubraj Samal and Sri Dibya Ranjan Samal on the other hand in respect of the land comprised in Plot Nos. 4877, 4822, 4883, 4881, 4882/14582, 4884, 4885, 4858 and 4859. It was agreed that consideration payable for the sale of land would be at the rate of Rs.2,20,00,000/- per acre. Accordingly, the Tahasildar, Banarpal was requested to demarcate the plots. Ultimately, on 1st March, 2019 the land owners executed registered sale deeds in favour of GAIL in respect of the identified land measuring Ac.2.18 // 20 // in toto. But no sale deed was executed in so far as plot no.4877 is concerned. The value at which the lands were purchased by GAIL was at the rate of Rs.2,20,00,000/- higher than the rate determined by the Land Acquisition Officer, Angul. Consequentially, the payment was made and the petitioner also acknowledged the receipt of the amount on execution of sale deed in favour of GAIL. The petitioner, having executed the sale deed and received the consideration amount, after lapse of more than three years approached this Court by filing a writ petition claiming other benefits and the same were directed to be considered by the Deputy General Manager, GAIL. In compliance thereof, the representation of the petitioner was considered and disposed of by the authority, i.e., Deputy General Manager, GAIL by passing a reasoned order on 11.11.2022 under Annexure-14, by holding that the petitioner is not entitled to get enhanced compensation as well as rehabilitation and resettlement benefits as claimed. // 21 // 14. In the above view of the matter, this Court does not find any illegality or irregularity committed by the authority in passing the order dated 11.11.2022 under Annexure-14 so as to cause interference with the same. 15. Hence, the writ petition merits no consideration and the same is hereby dismissed. However, under the circumstances of the case, there shall be no order as to costs. JUDGE …………….………….. DR. B.R. SARANGI, M.S. RAMAN, J. I agree. JUDGE …………….………….. M.S. RAMAN, Orissa High Court, Cuttack The 23rd June, 2023, Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA Date: 28-Jun-2023 14:28:53