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IN THE HIGH COURT OF BOMBAY
R.A. Jahagirdar T.D. Sugla, JJ.
Yeshwant Gajanan Joshi others.... Petitioners.
Versus
Hindustan Petroleum Corpn. Ltd. others.... Respondents.
Writ Petition No. 269 with Writ Petitions Nos. 270, 834 835 of 1985, decided on 19-2-1988.
Advocates appeared :
R.V. Pai for petitioners in W.P. 269 270.
N.H. Gurusahani, V.A. Gangal, i/b Mulla Mulla Cr. B C., for respondent No. 1 in W.P. 269, 270 and for petitioners in W.P. 834, 835.
R.V. Desai, for respondent No. 2 in W.P. 269, 270 and for respondent No. 1 in W.P. 834, 835.
R.Y. Ganoo with A.S. Hirve, for respondents No. 2 in W.P. 834 835.
Though the existence of an alternative remedy is sometimes held as a bar to the invocation of the jurisdiction of High Court under Article 226 of the Constitution, it is not an absolute bar. On the other hand it is subject to certain well established exceptions. If for example an order passed or an award made is a nullity, it can be challenged on that ground directly under Article 226 of the Constitution.
PETROLEUM AND MINERAL PIPELINES (ACQUISITION OF RIGHT OF USER IN LAND) ACT, 1962
Section 10 (2) - Authorities awarding compensation - Not administrative - But quasi judicial - Principles of audi alterum partem to be followed.
That a party should be heard before any order is passed affecting the interest of that party is a rule which is now well entrenched in the law of India. At some time, there was a debate as to whether the rule audi alteram partem could be invoked in the case of administrative action. Even that debate has now become obsolete because by series of decisions, which we do not think necessary to enumerate, it has been held that before passing any order affecting the interest or rights of any party, that party must be heard. This is the most elementary of the several principles of natural justice which have become embedded in the administrative law of this country. If this is so in respect of administrative action, the principle has got greater application In the case bodies which are by the nature of the duties to be performed by them quasi judicial. That both the parties should be heard by a quasi judicial body before it proceeds to give any decision was never in doubt even before that rule was extended to hearing in the filed of administrative action. The analysis of the provisions of the Act which clearly show that the Competent Authority is not discharging merely an administrative function. On the other hand he is clearly discharging quasi judicial function when he is proceeding to determine compensation payable by the acquiring body such as the Corporation, to the owners of the occupiers of the land. It is inconceivable that the determination of the compensation can be made only on the basis of the material supplied by the claimants without giving an opportunity to the other side who has to pay the compensation, to show if possible, that the amounts claimed by the claimants are exaggerated or that they were not entitled to any compensation at all. This principle is at the core of all judicial and quasi judicial function.
2. First we will narrate the facts in Writ Petition No. 269 of 1985. The petitioners in the petition contend that two awards were made in Compensation Cases Nos. 22 of 1984 and 23 of 1984 by the Competent Authority under the Petroleum and Minerals Pipelines (Acquisition of Right User in Land) Act, 1962, hereinafter referred to as "the Act". Theses awards, which are made on 18th of July 1984 and 10th of July 1984 respectively, directed payment of certain sums as compensation to the petitioners, but the Hindustan Petroleum Corporation Ltd., which is respondent No., is not paying compensation as per the said awards. Hence this petition, asking for a writ of mandamus requiring respondent No. 1, hereinafter referred to as "the Corporation" to pay to the petitioners the amounts of compensation as per the awards. Respondent No. 2 in this petition is the Competent Authority.
3. By issuing certain notifications as contemplated under the Act, the Corporation acquired the right of user of the lands of the petitioners, leading the petitioners to file applications for compensation as per the provisions of the Act. The Competent Authority heard the applications of the petitioners and determined certain sums as compensation to the petitioners. The Corporation is, therefore, obliged to pay the compensation so fixed by the Competent Authority.
4. Writ petition No. 834 of 1985 has been fixed by the Corporation for setting aside the aforesaid awards on the ground that the awards were null and void as the same were given without giving an opportunity to the Corporation to lead evidence on its behalf or to lead evidence in rebuttal of the material which had been taken on the record by the Competent Authority behind the back of the Corporation.
5. In order to appreciate the rival contentions in the light of the facts which, in our opinion, have been established. It would be advantageous to refer to the provisions of the Act. The Act has been enacted by the Parliament, as the Preamble to the Act mentions, to provide for the acquisition of right of user in land for laying petroleum pipelines for the transport of petroleum and minerals and for matters connected therewith. It should be stated that the acquisition contemplated under the Act is not acquisition of the land as such but acquisition of right of user in land for the purpose of laying petroleum pipeline. Section 3 of the Act empowers the Central Government to issue a notification of its intention to acquire the right of user in land if it appears to the Central Government that it is necessary in the public interest that for the transport of petroleum or any mineral from one locality to another, pipelines may be laid by the Central Government or by any State Government or by a corporation and that for the purpose of laying such pipelines, it is necessary to acquire the right of user in any land. On the issue of the said notification, any person authorised by the Central Government or by the State Government or by the Corporation may lawfully enter upon the land for the purpose of surveying the same to see if the same is necessary or useful for the stated purpose. Objections to the notification issued under section 3 can be lodged by any person interested in the land and those objections are to be decided by the Competent Authority and his decision is regarded as final.
6. Where no objection is lodged or where the objections lodged are overruled, the Central Government may issue a declaration under sub-section (1) of section 6 that the right of the user in the land for laying the pipelines should be acquired and on such declaration being made, the right of user in the land specified therein vests absolutely in the Central Government free from all encumbrances. After such vesting, the Central Government or the State Government or the corporation is
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