ADVERTISEMENT
Gujarat High Court
Champaklal Naranji Patel vs State Of Gujarat on 27 April, 2026
Author: Sunita Agarwal
Bench: Sunita Agarwal
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Reserved On : 28/01/2026
Pronounced On : 27/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15368 of 2010
[On order dated 28/01/2026 in R/SCA/15368/2010 ]
With
R/SPECIAL CIVIL APPLICATION NO. 5098 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
==========================================================
Approved for Reporting Yes No
==========================================================
CHAMPAKLAL NARANJI PATEL
Versus
STATE OF GUJARAT & ORS.
==========================================================
SCA NO. 15368 OF 2010
Appearance:
MS. TANMAYI POOJARI, ADVOCATE WITH MS. VARNIKA SINGH,
ADVOCATE FOR MR SAURABH M PATEL(5019) for the Petitioner(s) No. 1
MR.KAMAL BTRIVEDI, ADVOCATE GENERAL WITH MR. VINAY VISHEN,
AGP for the Respondent(s) No. 1,5
MR.MIHIR THAKORE, SR.ADVOCATE WITH MR ASPI M KAPADIA(1865)
for the Respondent(s) No. 2
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 3
SCA NO. 5098 OF 2010
MS. RADHIKA BHATT, ADVOCATE WITH MR. VEDANT SUMAN,
ADVOCATE FOR MR. S.P.MAJMUDAR, ADVOCATE AND MR.
P.P.MAJMUDAR, ADVOCATE FOR THE PETITIONER.
MR. KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR. VINAY VISHEN,
AGP FOR THE RESPONDENT NOS. 1 & 3
MR. MIHIR THAKORE, SR.ADVOCATE WITH MR. ASPI KAPADIA,
ADVOCATE FOR RESPONDENT NO.2
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D. N. RAY
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CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE D. N. RAY)
JUDGMENT
INDEX TO THE JUDGMENT
APPEARANCE DETAILS PARA 1
OUTLINE OF THE CASE PARA 2.
FACTUAL MATRIX PARA 4.
 Notification Dated 21.08.2008; Para 4.2
 Notification Dated 02.04.2009. Para 4.4
PRAYERS AND RELIEFS SOUGHT PARA 5.
SUBSTANTIAL QUESTIONS OF LAW PARA 6.
ARGUMENTS OF THE PETITIONER(S)
 Void for Identity with the State Act, 2001; Para 7.
 Impermissible Encroachment upon the field reserved for the Union;Para 7.1
 State Enactment beyond Legislative Competence; Para 7.2
 Non-Consideration of Repugnancy in Presidential Assent; Para 7.3
 Inadequate Framework for Assessment of Compensation; Para 7.4
 Pith and Substance attracted - Entry 53, List I; Para 7.5
 Infringement of Articles 14, 19(1)(g) and 21. Para 7.5
ARGUMENTS OF THE RESPONDENTS
Arguments of the Respondent Nos. 1 & 5
 Chain of Litigation leading to Present Proceedings; Para 8.1
 Both enactments traceable to Entry 42, List III ; Para 8.3
 Doctrine of Parliamentary Legislations and Occupied Field; Para 8.4
 Judgments referred and relied upon; Para 8.4
 Referability of the Act, 1962 to Entry 42 vis-à -vis FPCE Judgment; Para 8.5
 Section 18 vis-à -vis Karunanidhi Principle. Para 8.7
Arguments of the Respondent No. 2 (GSPL)
 No Invalidation Warranted - Glimpse of Essential Infrastructure; Para 9
 GSPL's Infrastructure Projects and Activities; Para 9.1
 Act of 2000 was enacted to confer unaddressed authority; Para 9.3
 Harmonious Coexistence of Parallel Statutes Para 9.4
 No repugnancy as Complimentary Legislative Fields. Para 9.5
FINDINGS AND ANALYSIS
 Progression of developments in the matter since enactment; Para 10
 Legislative Competence over 'Natural Gas' - Entry 53, List I; Para 13
 Examination of alleged overlap between 2000 and 2001 Acts.; Para 14
 Judicial approval of the Competence (Anil @ Bipinchandra); Para 15
 Core issue for adjudication as per the Order dated 19.07.2011; Para 17
 R. C. Cooper - Stare Decisis on Entry 42, List III; Para 19
 Plea of Per Incuriam in respect of earlier decisions; Para 23
 Purpose and Referability of the Central Act of 1962; Para 25
 SOR of the Central Act of 1962; Para 27.1
 SOR of the impugned State Act, 2000; Para 27.2
 Comparision of the Central Act & the State Act; Para 29
 Section 18 of the Act of 1962 vis-à -vis Karunanidhi Judgment; Para 33
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 Analysis of "in addition to and not in derogation of"; Para 37
 SOR of the Railways (Amendment) Act, 2008 [for acquisition]; Para 41
 Dominant purpose for the enactment of the State Act, 2000. Para 43
CONCLUSIONS
Appearance Details
1. Heard Ms. Tanmayi Poojari, learned advocate assisted
by Mr. Saurabh Patel, learned advocate appearing for the
petitioner in Special Civil Application No.15368 of 2010; Ms.
Radhika Bhatt, learned advocate for Mr. S.P. Majmudar,
learned advocate appearing for the petitioner in Special Civil
Application No.5098 of 2010; Mr. Kamal B. Trivedi, learned
Advocate General assisted by Mr. Vinay Vishen, learned
Assistant Government Pleader appearing for the respondent
Nos.1 and 5, Mr. Mihir J. Thakore, learned Senior Counsel
assisted by Mr. Aspi M. Kapadia, learned advocate appearing
for the respondent No.2.
Outline of the Case
2. In the present petitions, the petitioner(s) have, inter alia,
assailed the constitutional validity of the Gujarat Water &
Gas Pipelines (Acquisition of Right of User in Land) Act,
2000, an enactment of the State Legislature of Gujarat dated
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14.03.2000. The said State enactment has been legislated in
the backdrop of, and in connection with, the Petroleum and
Minerals Pipelines (Acquisition of Right of User in
Land) Act, 1962 (hereinafter referred to as "the Central Act
of 1962"), which is a Parliamentary enactment dated
07.12.1962, and the challenge is premised, inter alia, on
issues relating to constitutional validity and legislative
competence of the Act of 2000.
3. Issues raised in Special Civil Application No. 15368 of
2010 and Special Civil Application No. 5098 of 2010 are
substantially identical and they were heard together. For the
sake of convenience, Special Civil Application No. 5098 of
2010 is treated as the lead petition, and the decision rendered
herein shall govern the outcome of the connected application
as well.
Factual Matrix
4. The facts, in nuce, giving rise to the filing of the present
lead petition are as under:-
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4.1 The petitioner is stated to be one of the co-owners of
land bearing Revenue Survey No. 39, Block No. 10, classified
as old tenure land, situated at village Bharthana, Taluka
Choryasi, District Surat (hereinafter referred to as "the land
in question").
4.2 The respondent No. 2, namely Gujarat State Petronet
Limited, issued a notification dated 21.08.2008 under Section
3 of the Gujarat Water & Gas Pipeline (Acquisition of
Right of User in Land) Act, 2000 (hereinafter referred to as
"the Act, 2000"), expressing its intention to acquire the right
of user in the lands specified in the schedule annexed thereto
for the purpose of laying a pipeline for transportation of
natural gas. The notification dated 21.08.2008 reads as
under:-
"ENERGY & PETROCHEMICALS DEPARTMENT
Notification
Sachivalaya, Gandhinagar, 21st August, 2008.
No. GU-2008-127-GPC-11-2008-2423-E, whereas it
appears to the Government of Gujarat that it is necessary in
the public interest that for the transportation of Natural Gas
in the state of Gujarat from Village Kosam Taluka Olpad
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District Surat to Village Utran, Taluka Surat City, District
Surat for Gas Pipeline Project should be laid by the Gujarat
State Petronet Limited (a Subsidiary Company of Gujarat
State Petroleum Corporation Ltd. - a Government of Gujarat
undertaking) Gandhinagar.
And whereas, for purpose of laying such pipeline, it is
necessary to acquire the right of user in the lands described
in the Schedule annexed to this notification.
Now, therefore, in exercise of the powers conferred by
sub-section (1) of section 3 of the Gujarat Water and Gas
Pipelines (Acquisition of Right of User in land) Act, 2000, the
Government of Gujarat hereby declares its intention to
acquire the right of user therein.
Any person interested in the lands described in the said
Schedule may within thirty (30) days from the date of which
the copies of the notification, as published in the Official
Gazette of Government of Gujarat are made available to the
general public object in writing with grounds to the
acquisition of the right of user therein or laying of the
pipelines under the land to The Competent Authority, Gujarat
State Petronet Limited, Block 15, 3rd Floor, Udyog Bhavan,
Sector 41 Gandhinagar 382 011."
4.3 It is the case of the petitioner that the land in question
came to be purchased by him from the erstwhile owners,
namely Jayantigiri Premgiri and others, by way of a registered
sale deed dated 24.07.2008, and since then, the petitioner
claims to be in lawful possession and occupation of the said
land.
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4.4 Subsequently, respondent No. 1-State of Gujarat, issued
a notification dated 02.04.2009 under Section 6 of the Act,
2000, declaring that the right of user in the lands specified in
the schedule annexed to the said notification stood acquired
for the aforesaid public purpose. The said notification, inter
alia, included the land in question. The notification dated
02.04.2009 reads as under:-
"ENERGY & PETROCHEMICALS DEPARTMENT
Notification
Sachivalaya, Gandhinagar, 2nd April, 2009.
No.GU-2009-53-GPC-11-2008-3235-E-Part-II.
whereas by notification of the Government of Gujarat,
Ministry of Energy and Petrochemicals Department,
Gandhinagar Notification No.GU-2008-56-GPC-11-2008-3235-
E 30thMay-2008, & No. GU-2008-127-GPC-11-2008-2423-E,
dtd. 21st August-2008, issued under sub-section (1) of section
3 of the Gujarat Water and Gas Pipelines (Acquisition of Right
of User in land) Act, 2000. The State Government declared
it's intention to acquire the Right of User in land specified in
the Schedule annexed to that notification for purpose of
Laying the pipeline for transportation of natural gas.
And whereas, the copies of the said Gazette notification
were made available to the public on 27/09/2008.
And whereas the Competent Authority has under sub-
section (1) of Section 6 of the said Act submitted report to the
Government.
And whereas, the State Government has after
considering the said report decided to acquire the Right of
User in the land specified in the Schedule annexed to this
notification. Should be Issued.
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Now, therefore, in exercise of the powers conferred by
sub-section (1) of section 6 of the said Act, the State
Government hereby declares that the right of user in the said
land specified in the Schedule annexed to this notification
hereby acquired for laying the pipeline.
And further, in exercise of Powers conferred by sub-
section (4) of section 6 of the said Act, the State Government
directs that the right of user in the said land shall instead of
vesting the State Government vests on this date of the
publication of this declaration in the Gujarat State Petronet
Ltd, (a Subsidiary Company of Gujarat State Petroleum
Corporation ltd. - a Government of Gujarat undertaking)
Gandhinagar free from all encumbrances."
4.5 The respondent No. 2, by notice dated 07.04.2009,
called upon the erstwhile owner, namely Jayantigiri Premgiri,
to submit his claim for compensation within a period of 60
days, in accordance with the provisions of the Act, 2000.
4.6 The petitioner asserts that he addressed a
representation dated 11.05.2009 to respondent No. 2,
informing the authority about the transfer of ownership in his
favour and requesting that all future correspondence be
addressed to him. Thereafter, respondent No. 2, vide
communication dated 22.08.2009, proceeded to determine the
compensation payable in respect of the land in question.
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4.7 The petitioner, thereafter, submitted objections before
the respondent No. 3, namely the District Collector, Surat,
inter alia, with regard to the determination and receipt of
compensation.
Prayers and Reliefs Sought
5. Being aggrieved, the petitioner has invoked the writ
jurisdiction of this Court under Articles 226 and 227 of the
Constitution of India, inter alia, challenging the constitutional
validity of the Gujarat Water & Gas Pipeline (Acquisition
of Right of User in Land) Act, 2000 on the grounds of
alleged violation of constitutional provisions and lack of
legislative competence on the part of the State Legislature,
and has accordingly preferred the present petition with the
following prayers:-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any other
appropriate writ, order or direction holding that the Gujarat
Water & Gas Pipeline (Acquisition of Right of User in Land)
Act, 2000 is illegal, unjustified and ultra vires the
Constitution of India and that the State Government is
incompetent to enact the said Act.
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"(A)(a) YOUR LORDSHIPS may be pleased to issue
appropriate writ, order or direction holding that the Gujarat
Water & Gas Pipeline (Acquisition of Right to User in Land)
Act, 2000 is repugnant to the Petroleum and Mineral
Pipelines (Acquisition of Right to User in Land) Act, 1962 and
is void and illegal in view of the provisions of Article 254 of
the Constitution of India.
(B) YOUR LORDSHIPS may be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any other
appropriate writ, order or direction quashing and setting
aside notification dated 21.08.2008 issued by respondent
No.2 under Section 3 of the Act (at ANNEXURE-B hereto)
and notification dated 02.04.2009 issued by respondent No.1
under Section 6 of the Act (at ANNEXURE-D hereto);
(C) During the pendency and Final Disposal of the present
petition, YOUR LORDSHIPS may be pleased to stay further
operation, implementation and execution of notification dated
21.08.2008 issued by respondent No.2 under Section 3 of the
Act (at ANNEXURE-B hereto) and notification dated
02.04.2009 issued by respondent No.1 under Section 6 of the
Act (at ANNEXURE-D hereto) qua the land of the present
petitioner;
(D) Pass any such other and/or further orders that may be
thought just and proper, in the facts and circumstances of the
present case."
Substantial Questions of Law
6. While adjudicating the petitions, this Court is called
upon to consider the following substantial questions of law,
which comprehensively encompass and govern the core issues
arising in the case and are essential for the adjudication of the
challenge involved herein:-
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A. Whether the Gujarat Water & Gas Pipelines
(Acquisition of Right of User in Land) Act, 2000 falls within
the legislative competence of the State Legislature of
Gujarat, inasmuch as, the legislative competence can be
traced to Entry 42 of List III (Concurrent List) of the Seventh
Schedule to the Constitution of India OR whether the
legislative competence is exclusively of the Union, the subject
matter of the Legislation being traced to Entry 53 of List I
(Union List), as claimed by the petitioners?
B. If the legislative competence of the State can be traced
to Entry 42 of List III (Concurrent List), then whether the
provisions of the State Act, 2000, are inconsistent with and
repugnant to the Central Act, 1962?
C. Whether the provisions of the impugned Act, as well as
the consequential notification issued under Section 6(1)
thereof, even otherwise, infringe the fundamental rights of
the petitioner(s) guaranteed under Articles 14, 19(1)(g), and
21 of the Constitution of India?
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Arguments of the Petitioner(s)
7. Ms. Tanmayi Poojari, learned advocate appearing for
the petitioner, at the very outset submitted that the subject
matter of the impugned State Act of 2000 is identical with the
subject matter of the Gujarat Gas (Regulation of Transmission,
Supply and Distribution) Act, 2001, (hereinafter referred to as
"the State Act, 2001"). According to Ms. Poojari, both of these
Acts are essentially to facilitate the transmission, supply and
distribution of Gas which is a Union subject falling within
Entry 53 of List I (Union List). According to Ms. Poojari, the
Hon'ble Apex Court in its judgment dated 25.03.2004
reported in the case of Association of Natural Gas and
Others Vs. Union of India & Others, reported in (2004) 4
SCC 489 has struck down the State Act, 2001 being ultra
vires and beyond the competence of the State Legislature.
Since the State Act, 2000, which is impugned before us is also
for the purpose of transmission, supply and distribution of
Gas, thus, the State Act, 2000 should also be declared to be
beyond the competence of the State Legislature.
7.1 Ms. Radhika Bhatt, learned counsel appearing on behalf
of the petitioner, has contended that in view of Entry 53 of
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List I of the Seventh Schedule to the Constitution of India, the
legislative domain in respect of natural gas, including
liquefied natural gas, exclusively vests with Parliament. It is
submitted that the impugned enactment, in pith and
substance, enables the State Government to acquire rights in
land for the purpose of laying pipelines for transportation of
gas and water, which, according to her, amounts to an
impermissible encroachment upon the legislative field
reserved for the Union.
7.2 Elaborating further, it is urged that though the
impugned Act is ostensibly framed as a legislation concerning
acquisition of right of user in land, its true nature and effect
pertain to regulation and transportation of natural gas and
liquefied natural gas. On this premise, it is contended that the
State Legislature lacked the requisite legislative competence
to enact the said law.
7.3 It has been contended by Ms. Bhatt, learned counsel for
the petitioner, that where a proposed legislation is placed
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before the President for assent with a view to curing any
inconsistency, it is incumbent that such inconsistency be
expressly brought to the notice of the President so as to
enable due application of mind. It is submitted that in the
present case, no such inconsistency was ever pointed out to
the President. Consequently, the issue of repugnancy was
neither considered nor examined at the stage of granting
Presidential assent, and therefore, the question of the
President applying his mind to such aspect, either for
according or withholding assent, does not arise.
7.4 Ms. Bhatt has also assailed the provisions relating to
determination of compensation under the Act, 2000,
submitting that the statutory framework does not provide for
an adequate or fair mechanism. It is argued that the laying of
pipelines, in effect, substantially impairs the use and
enjoyment of the land and is akin to acquisition, and
therefore, the compensation contemplated under the Act,
2000 is neither just nor commensurate with the deprivation
suffered. In furtherance of this contention, Ms. Bhatt also
drawn the attention of this Court towards Section 108 of the
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Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (for
short, "the RFCTLARR Act, 2013").
7.5 Ms. Bhatt has submitted that the impugned enactment
contemplates only a limited right in the nature of "right of
user" and does not amount to full-fledged acquisition of the
land. It is argued that such limited acquisition is intrinsically
linked to the activity of transmission of natural gas and,
therefore, the legislation, in pith and substance, falls within
the ambit of Entry 53 of List I of the Seventh Schedule to the
Constitution of India. In support of the aforesaid proposition,
Ms. Bhatt has placed reliance upon the judgment of the
Hon'ble Apex Court in Laljibhai Kadvabhai Savaliya v.
State of Gujarat, reported in (2016) 9 SCC 791, and has
drawn the attention of this Court to the following relevant
observations therein:-
"17.1 As laid down by this Court in Jilubhai Nanbhai
Khachar and others v. State of Gujarat and another, the
right of user is a property right which can be acquired.
Further, it is not necessary that the acquisition should be of
"whole" of property rights or ownership rights. The
acquisition could be "partial" and the principles land down in
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the PMP Act are designed to give fair and just compensation
for acquisition of such right of user.
17.2 Proviso to Section 7(1) of the PMP Act mandates that
no pipeline shall be laid under any land which was used for
residential purposes, or any land wherein any permanent
structure was in existence before the date on which
Notification under Section 3(1) was issued or any land which
is appurtenant to a dwelling house. The pipeline would be
laid under lands which are primarily fallow lands or those
used for agricultural purposes. After the pipeline is so laid,
the land could certainly be used for the purpose for which it
was used before such Notification was issued. The
agricultural operations could still be continued and the
ownership in respect of land is left untouched. The vesting
provisions of the PMP Act make it clear that it is an Act
relating to acquisition of a limited right namely the right of
passage under the sub-soil to enable the laying of pipelines. It
would be incorrect to term the PMP Act to be acquiring
proprietary interest of the landowners in the land or taking
over their right to possess the lands in question."
7.6 It is further contended that even if the impugned Act is
assumed to be traceable to Entry 42 of List III of the Seventh
Schedule, the same would be rendered void on account of
repugnancy with the Central Act of 1962, a Central enactment
which is stated to have already occupied the field governing
the subject matter.
7.7 Lastly, it is submitted that the impugned Act as well as
the notification issued thereunder under Section 6(1), is
violative of the petitioner's fundamental rights guaranteed
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under Articles 14, 19(1)(g), and 21 of the Constitution of
India. In particular, it is urged that the petitioner's right to
carry on lawful activities and to deal with the property stands
materially curtailed, and any restriction imposed in the
absence of legislative competence would, ex facie, be
unreasonable and liable to be struck down.
Arguments of the Respondents
8. Per contra, Mr. Kamal B. Trivedi, learned Advocate
General appearing for respondent No. 1, has, upon a conjoint
reading of the provisions of the Act, 2000, the Central Act of
1962, as well as Entries 53 of List I and 42 of List III of the
Seventh Schedule to the Constitution of India, advanced
submissions opposing the contentions raised on behalf of the
petitioner.
8.1 At the outset, Mr. Trivedi has delineated the sequence of
litigation culminating in the present proceedings. In this
regard, Mr. Trivedi has drawn the attention of this Court to
the judgment dated 05.09.2005 rendered by this Court in Anil
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@ Bipinchandra Chotubhai Desai v. State of Gujarat and
Others, reported in 2005:GUJHC:20546-DB, wherein it has
been held that the State Legislature possesses the requisite
legislative competence to enact the Act, 2000, the same being
referable to Entry 42 of List III (Concurrent List) of the
Seventh Schedule to the Constitution of India. It was held as
under:-
"For the reasons mentioned above, we hold that The Gujarat
Water and Gas Pipelines (Acquisition of Right of User in
Land) Act, 2000 is within the legislative competence of the
State and by enacting this piece of legislation the State
cannot be said to have encroached on the Union's power of
legislation in respect of the matters enumerated in List I of
the Seventh Schedule."
8.2 Mr. Trivedi has further submitted that subsequent to the
judgment dated 05.09.2005, the petitioner approached the
Hon'ble Apex Court by way of a writ petition under Article 32
of the Constitution of India on 12.08.2006, and sought liberty
to pursue appropriate proceedings before this Court.
Thereafter, a strong reliance is placed on the order dated
19.07.2011 passed by this Court in Champaklal Naranji
Patel v. State of Gujarat & 4, rendered in SCA No. 15368
of 2010 with SCA No. 5098 of 2010, wherein, this Court,
inter alia, observed that the principal issue arising for
consideration is limited in scope, namely, whether the Act of
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2000 is repugnant to the Central Act of 1962, enacted by
Parliament, within the meaning of Article 254 of the
Constitution of India. It was observed as under:-
"Admit. The only question Involved in the case is weather Act
5 of 2000 enacted by the Legislature of the State is
inconsistent with the Act 50 of 1962 elected by the
Parliament and thereby is repugnant as per Article 254 of the
Constitution of India."
8.3 Mr. Trivedi has further placed reliance upon the
judgment of the Hon'ble Apex Court in the case of Laljibhai
Kadvabhai Savaliya v. State of Gujarat, reported in (2016)
9 SCC 791, and has submitted that while examining the
validity of the Act, 1962, the Hon'ble Apex Court has
categorically held that the said enactment is a legislation
pertaining to acquisition of right of user in land for the
purpose of laying pipelines. On the strength of the aforesaid
pronouncement, it is contended that both the Central Act of
1962 as well as the impugned State enactment is referable to
Entry 42 of List III (Concurrent List) of the Seventh Schedule
to the Constitution of India. It is further urged that the
impugned Act, having been enacted in the year 2000, has
been operating in the field concurrently with the Central
legislation without any inconsistency or legal impediment for
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a considerable period, which, according to the learned
Advocate General, fortifies the presumption of its
constitutional validity.
8.4 In order to fortify his submissions, Mr. Trivedi has
placed reliance upon various pronouncements of the Hon'ble
Apex Court wherein the doctrine of 'dominance of
Parliamentary legislation' and the concept of "occupied
field" have been elaborately considered, particularly in the
context of examining inconsistency and repugnancy between
Central and State enactments. It is submitted that the
aforesaid judgments lay down the governing principles for
determining whether a State legislation can coexist with a
Central enactment operating in the same field. The decisions
relied upon by Mr. Trivedi are enumerated hereinbelow:-
1) Fatehchand Himmatlal and Others v. State of
Maharashtra, reported in (1977) 2 SCC 670, wherein, it
was observed as under:-
"62. In the Canadian Constitution, the question of conflict
and coincidence in the domain in which provincial and
dominion legislation overlap has been considered. If both
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may overlap and co-exist without conflict, neither legislation
is ultra vires. But if there is confrontation and conflict the
question of paramountcy and occupied field may crop up. It
has been held that the rule as to predominance of dominion
legislation can only be invoked in case of absolutely
conflicting legislation in pari materia when it will be an
impossibility to give effect to both the dominion and
provincial enactments. There must be a real conflict between
the two Acts i.e. the two enactments must come into collision.
The doctrine of Dominion paramountcy does not operate
merely because the Dominion has legislated on the same
subject matter. The doctrine of 'occupied field' applies only
where there is a clash between Dominion Legislation and
Provincial Legislation within an area common to both. Where
both can co-exist peacefully, both reap their respective
harvests (Please see; Canadian Constitutional Law by Laskin--
pp. 52-54-, 1951 Edn).
63. We may sum up the legal position to the extent
necessary for our case. Where Parliament has made a law
under Entry 52 of List I and in the course of it framed
incidental provisions affecting gold loans and money-lending
business involving gold ornaments, the State, making a law
on a different topic but covering in part the same area of gold
loans', must not go into irreconcilable conflicts. Of course,
if Art. 254(2) can be invoked--We will presently examine it--
then the State law may stir prevail since the assent of the.
President has been obtained for the Debt Act. Thirdly, the
doctrine of 'occupied field' does not totally deprive the State
Legislature from making any law incidentally referable to
gold. In the event of a plain conflict, the State law must step
down unless, as. pointed out earlier in the previous
passage, Art. 254(2) comes to the rescue."
1) M. Karunanidhi v. Union of India and Another,
reported in (1979) 3 SCC 431, wherein, it was observed
as under:-
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"35. On a careful consideration, therefore, of the
authorities referred to above, the following propositions
emerge:-
1. That in order to decide the question of repugnancy it
must be shown that the two enactments contain
inconsistent and irreconcilable provisions, so that they
cannot stand together or operate in the same field.
2. That there can be no repeal by implication unless the
inconsistency appears on the face of the two statutes.
3. That where the two statutes occupy a particular field,
there is room or possibility of both the statutes
operating in the same field without coming into
collision with each other, no repugnancy results.
4. That where there is no inconsistency but a statute
occupying the same field seeks to create distinct and
separate offences, no question of repugnancy arises
and both the statutes continue to operate in the same
field.
37. Last but not the least there is a very important
circumstance which completely and conclusively clinches the
issue and takes the force out of the argument of Mr. Venu
Gopal on the question of repugnancy. It would be seen that in
the original State Act, section 29 ran thus:-
"Act to overrule other laws, etc.-The provisions of this
Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for
the time being in force or any custom, usage or
contract or decree or order of a court or other
authority".
This section underwent an amendment which was brought
about by Tamil Nadu Act 16 of 1974 which substituted a
new section 29 for the old one. The new section which was
substituted may be extracted thus:-
"Saving - The provisions of this Act shall be in addition
to, and not in derogation of, any other law for the time
being in force, and nothing contained herein shall
exempt any public man from any proceeding by way of
investigation or otherwise which might, apart from this
Act, be instituted against him".
This amendment received the assent of the President on 10th
April, 1974 and was published in the Tamil Nadu Government
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Gazette Extraordinary dated 16th April, 1974. We have
already shown that although the State Act was passed as far
back as 30th December, 1973 it received the assent of the
President on the 10th April, 1974 that is to say, on the same
date as Act 16 of 1974. The Act was however brought into
force on the 8th May, 1974 when the new section 29 which
had already replaced the old section and had become a part
of the statute. Therefore, for all intents and purposes the
State Act cannot be read in isolation, but has to be
interpreted in conjunction with the express language
contained in section 29 of the State Act. This section has in
unequivocable terms expressed the intention that the State
Act which was undoubtedly the dominant legislation would
only be "in addition to and not in derogation with any other
law for the time being in force" which manifestly includes the
Central Acts, namely, the Indian Penal Code, the Corruption
Act and the Criminal Law (Amendment) Act. Thus, the
Legislature about a month before the main Act came into
force clearly declared its intention that there would be no
question of the State Act colliding with the Central
Acts referred to above. The second part of section 29 also
provides that nothing contained in the State Act shall exempt
any public man from being proceeded with by way of
investigation or otherwise under a proceeding instituted
against him under the Central Acts. It is, therefore, clear that
in view of this clear intention of the legislature there can be
no room for any argument that the State Act was in any way
repugnant to the Central Acts. We have already pointed out
from the decisions of the Federal Court and this Court that
one of the important tests to find out as to whether or not
there is repugnancy is to ascertain the intention of the
legislature regarding the fact that the dominant legislature
allowed the subordinate legislature to operate in the same
field pari passu the State Act."
1) Hoechst Pharmaceuticals Ltd. and Others v. State of
Bihar and Others, reported in (1983) 4 SCC 45,
wherein, it was observed as under:-
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"54. In Laskin's Canadian Constitutional Law, 4th edn., it is
observed at p. 24 that the doctrine of paramountcy Is tied up
with the "trenching" doctrine in the first of the four
propositions formulated by Lord Tomlin in Attorney-General
for Canada v. Attorney General for Britain Columbia & Ors.
(1) case, and then he goes into the question,: "What is the
basis of the paramountcy doctrine ?" Laskin quotes from
Lefroy's Canada's Federal System at p. 126:
"But the rule as to predominance of Dominion
legislation it may be confidently said, can only be
invoked in cases of absolutely conflicting legislations in
pari materia, when it would be an impossibility to give
effect to both the Dominion and the provincial
enactments."
The learned author refers two the two decisions of the Privy
Council in Attorney-General of Ontario v. Attorney-General of
Canada(2) and City of Montreal v. Montreal Street Railway(3)
laying down that:
"There must be a real conflict between the two Acts,
that is, the two enactments 'must come into
collision'..... or 'comes into conflict .... over a field of
jurisdiction common to both'."
Laskin observes that the "conflict" test espoused by these
authorities seems clear enough in principle even if it raises
problems in application. He then at p. 26 notices that there is
a recent trend in the decisions of the Supreme Court of
Canada to the strict view of paramountcy reflected in the
conflict or collision test, which he describes as the test of
operating incompatibility and observes at p. 27 : .
"It is necessary to be reminded at all times that no
issue of paramountcy can arise unless there is in
existence federal and provincial legislation which,
independently considered, is in each case valid. If
either piece of legislation, standing alone, is invalid
there is no occasion to consider whether the field has
been occupied. The issue that will have been resolved
in such case would be the anterior one of the "matter
embraced by the legislation, whether of Parliament or
of the provincial legislature, as the case may be."
At p. 28, he states:
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"The doctrine of occupied field applies only where there
is a clash between Dominion legislation and provincial
legislation within an area common to both."
Here there is no such conflict. The Union and the State laws
operate on two different and distinct fields and both the laws
are capable of being obeyed."
1) National Engineering Industries Ltd. v. Shri Kishan
Bhageria and Others, reported in AIR 1988 SC 329,
wherein, it was observed as under:-
"12. It has to be borne in mind that section 2A of the Act
was amended to permit individual workman to ask for a
reference in the case of individual dispute. This amendment
was assented to by the President on 1st of December, 1965.
The Rajasthan Act received the assent of the President on
14th of July, 1958. On 8th March, 1972 Chapter 6A including
section 28A was inserted in the Rajasthan Act. Therefore the
material provision of the Rajasthan Act is the subsequent law.
Under Article 254(2) of the Constitution if there was any law
by the State which had been reserved for the assent of the
President and has received the assent of the President, the
State law would prevail in that State even if there is an
earlier law by the Parliament on a subject in the Concurrent
List. It appears that both of these Acts tread the same field
and if there was any conflict with each other, then section
28A of Rajasthan Act would apply being a later law. We find,
however, that there is no conflict. The learned Single Judge of
the Rajasthan High Court in Poonam Talkies, Dausa v. The
Presiding Officer, Labour Court, Jaipur, (S.B. Civil Writ
Petition No. 1206/85 decided on 9.6.1986) so. That decision
has been upheld by the Division Bench of the Rajasthan High
Court in Writ Appeal No. 231/86. The Division Bench of the
High Court in the instant appeal relying on the said decision
held that there was no scope for any repugnancy. It appears
to us that it cannot be said that these two Acts do not tread
the same field. Both these Acts deal with the rights of the
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workman or employee to get redressal and damages in case
of dismissal or discharge, but there is no repugnancy because
there is no conflict between these two Acts, in pith and
substance. There is no inconsistency between these two acts.
These two Acts, in our opinion, are supplemental to each
other.
14. Quoting the aforesaid observations, this Court in
M/s. Hoechst Pharmaceuticals Ltd. and others v. State of
Bihar and others, [1983] 4 S.C.C. 45 at page 87 where A.P.
Sen, J. exhaustively dealt with the principles of repugnancy
and observed that one of the occasions where inconsistency
or repugnancy arose was when on the same subject matter,
one law would be repugnant to the other. Therefore, in order
to raise a question of repugnancy two conditions must be
fulfilled. The State law and the Union law must operate on
the same field and one must be repugnant or inconsistent
with the other. These are two conditions which are required
to be fulfilled. These are cumulative conditions. Therefore,
these laws must tread on the same field and these must be
repugnant or inconsistent with each other. In our opinion, in
this case there is a good deal of justification to hold that
these laws, the Industrial Disputes Act and the Rajasthan
Act tread on the same field and both laws deal with the rights
of dismissed workman or employee. But these two laws are
not inconsistent or repugnant to each other. The basic test of
repugnancy is that if one prevails the other cannot prevail.
That is not the position in this case. Learned counsel on
behalf of the appellant, however, contended that in this case,
there had been an application as indicated above under
section 28A of the Rajasthan Act and which was dismissed on
ground of limitation. Sree Shankar Ghosh tried to submit that
there would be inconsistency or repugnancy between the two
decisions, one given on limitation and the other if any relief is
given under the Act. We are unable to accept this position,
because the application under Section 28A of the Rajasthan
Act was dismissed not on merit but on limitation. There is a
period of limitation provided under the Rajasthan Act of six
months and it may be extended for reasonable cause. But
there is no period of limitation provided under the Industrial
Disputes Act. Therefore, that will be curtailment of the rights
of the workmen or employees under the Industrial Disputes
Act. In the situation section 37 declares that law should not
be construed to curtail any of the rights of the workmen. As
Poet Tennyson observed- "freedom broadens from precedent
to precedent" so also it is correct to state that social welfare
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and labour welfare broadens from legislation to legislation in
India. It will be a well-settled principle of interpretation to
proceed on that assumption and section 37 of the Rajasthan
Act must be so construed. Therefore, in no way the Rajasthan
Act could be construed to curtail the rights of the workman to
seek any relief or to go in for an adjudication in case of the
termination of the employment. If that is the position in view
of the provisions 6 months' time in section 28A of the
Rajasthan Act has to be ignored and that cannot have any
binding effect inasmuch as it curtails the rights of the
workman under the Industrial Disputes Act and that Act must
prevail. In the premises, there is no conflict between the two
Acts and there is no question of repugnancy."
1) Innoventive Industries Ltd. v. ICICI Bank and
Another, reported in (2018) 1 SCC 407, wherein, it was
observed as under:-
"60. It is clear, therefore, that the earlier State law is
repugnant to the later Parliamentary enactment as under the
said State law, the State Government may take over the
management of the relief undertaking, after which a
temporary moratorium in much the same manner as that
contained in Sections 13 and 14 of the Code takes place
under Section 4 of the Maharashtra Act. There is no doubt
that by giving effect to the State law, the aforesaid plan or
scheme which may be adopted under the Parliamentary
statute will directly be hindered and/or obstructed to that
extent in that the management of the relief undertaking,
which, if taken over by the State Government, would directly
impede or come in the way of the taking over of the
management of the corporate body by the interim resolution
professional. Also, the moratorium imposed under Section 4
of the Maharashtra Act would directly clash with the
moratorium to be issued under Sections 13 and 14 of the
Code. It will be noticed that whereas the moratorium
imposed under the Maharashtra Act is discretionary and may
relate to one or more of the matters contained in Section
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4(1), the moratorium imposed under the Code relates to all
matters listed in Section 14 and follows as a matter of course.
In the present case it is clear, therefore, that unless the
Maharashtra Act is out of the way, the Parliamentary
enactment will be hindered and obstructed in such a manner
that it will not be possible to go ahead with the insolvency
resolution process outlined in the Code. Further, the non-
obstante clause contained in Section 4 of the Maharashtra
Act cannot possibly be held to apply to the Central
enactment, inasmuch as a matter of constitutional law, the
later Central enactment being repugnant to the earlier State
enactment by virtue of Article 254 (1), would operate to
render the Maharashtra Act void vis-Ã -vis action taken under
the later Central enactment. Also, Section 238 of the Code
reads as under:
"Sec. 238. Provisions of this Code to override
other laws.- The provisions of this Code shall have
effect, notwithstanding anything inconsistent therewith
contained in any other law for the time being in force or
any instrument having effect by virtue of any such law."
It is clear that the later non-obstante clause of the
Parliamentary enactment will also prevail over the limited
non-obstante clause contained in Section 4 of the
Maharashtra Act. For these reasons, we are of the view that
the Maharashtra Act cannot stand in the way of the corporate
insolvency resolution process under the Code."
8.5 In order to demonstrate that the Petroleum and Minerals
Pipelines (Acquisition of Right of User in Land) Act, 1962 is
traceable to Entry 42 of List III of the Seventh Schedule to the
Constitution of India, Mr. Trivedi has placed reliance upon the
decision of the Hon'ble Supreme Court in Forum for
People's Collective Efforts (FPCE) & Another v. State of
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West Bengal & Another, reported in (2021) 8 SCC 599.
Drawing support from the said judgment, it is submitted that
the Hon'ble Apex Court has, inter alia, made the following
observations:-
"10. Following the report of the Select Committee, the Real
Estate (Regulation and Development) Bill, 2016 (the "RERA
Bill 2016") was introduced. The Statement of Objects and
Reasons accompanying the RERA Bill 2016 emphasizes the
basic rationale for the enactment of the legislation:
"STATEMENT OF OBJECTS AND REASONS
1. The real estate sector plays a catalytic role in fulfilling
the need and demand for housing and infrastructure in
the country. While this sector has grown significantly in
recent years, it has been largely unregulated, with
absence of professionalism and standardization and
lack of adequate consumer protection. Though the
Consumer Protection Act, 1986 is available as a forum
to the buyers in the real estate market, the recourse is
only curative and is not adequate to address all the
concerns of buyers and promoters in that sector. The
lack of standardization has been a constraint to the
healthy and orderly growth of industry. Therefore, the
need for regulating the sector has been emphasized in
various forums.
2. In view of the above, it becomes necessary to have a
Central legislation, namely the Real Estate (Regulation
and Development) Bill, 2013 in the interests of effective
consumer protection, uniformity and standardization of
business practices and transactions in the real estate
sector. The proposed Bill provides for the establishment
of the Real Estate Regulatory Authority (the Authority)
for regulation and promotion of real estate sector and
to ensure sale of plot, apartment or building, as the
case may be, in an efficient and transparent manner
and to protect the interest of consumers in real estate
sector and establish the Real Estate Appellate Tribunal
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to hear appeals from the decisions, directions or orders
of the Authority.
3. The proposed Bill will ensure greater accountability
towards consumers and significantly reduce frauds and
delays as also the current high transactions costs. It
attempts to balance the interests of consumers and
promoters by imposing certain responsibilities on both.
It seeks to establish symmetry of information between
the promoter and purchaser, transparency of
contractual conditions set minimum standards of
accountability and a fast-track dispute resolution
mechanism. The proposed Bill will induct
professionalism and standardization in the sector, thus
paving the way for accelerated growth and investments
in the long run." (emphasis supplied)
11. The legislative background antecedent to and
ultimately culminating in the enactment of the RERA
indicates: firstly, the circumstances which gave rise to the
need for comprehensive Parliamentary legislation on the
subject; secondly, the specific inadequacies in the
development of the real estate sector which were a source of
exploitation of purchasers; thirdly, the legislative policy
underlying the enactment of the law; and fourthly, the
context in which specific statutory provisions have been
adopted as the instrument for bringing about orderly
development and growth of the real estate sector. The
legislative background demonstrates the concern of the
policy makers that the unregulated growth of the real estate
sector, accompanied by a lack of professionalism and
standardization, had resulted in serious hardship to
consumers. The real estate sector is of crucial significance to
meet the demand for housing in the country. While remedies
were provided to consumers by the Consumer Protection Act,
1986, this recourse was "curative" and did not assuage all
the concerns of buyers on the one hand and promoters on the
other hand in the sector. There existed an asymmetry of
information between promoters and buyers of real estate.
Buyers lacked adequate information about the title to the
land, the nature of the development, pricing of projects and
the progress of construction. A lack of standardization and
uniformity was a key factor restraining the balanced growth
and development of the real estate sector. The Central
enactment sought to remedy the drawbacks of the existing
regulatory framework in the country by establishing a real
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estate regulatory authority to ensure that transactions
between promoters and buyers are governed by the twin
norms of efficiency and transparency. It sought to bring
about accountability towards consumers and to significantly
reduce frauds, delays and high transaction costs.
14. As such, the legislative background underlying the
enactment of the RERA demonstrates a clear emphasis on:
i. Standardization;
i. Uniformity; and
i. Symmetry of information.
These elements provide the justification for enacting a
comprehensive legislation which is uniformly applicable to all
parts of the country.
131. Our journey of tracing the precedents of this Court,
commencing from Zaverbhai (supra) up until Innoventive
Industries (supra) indicates a thread of thought dwelling on
when, within the meaning of Article 254(1), a law made by
the legislature of a State can be considered to be repugnant
to a provision of a law made by Parliament with respect to
one of the matters in the Concurrent List which Parliament is
competent to enact. The doctrine of repugnancy under Article
254(1) operates within the fold of the Concurrent List. Clause
(1) of Article 254 envisages that the law enacted by
Parliament will prevail and the law made by the legislature of
the State shall be void "to the extent of repugnancy". Clause
(1) does not define what is meant by repugnancy. The initial
words of Clause (1) indicate that the provision deals with a
repugnancy between a law enacted by the State legislature
with:
i. A provision of a law made by Parliament which it is
competent to enact; or
i. To any provision of an existing law; and
i. with respect to one of the matters enumerated in the
Concurrent List.
132. The initial part of Clause (1) alludes to a law enacted by
a state legislature being "repugnant" to a law enacted by
Parliament or to an existing law. The concluding part of
clause 1 provides for a consequence, namely that the State
law would be void "to the extent of the repugnancy" and the
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Parliamentary enactment shall prevail. The concept of
repugnancy emerges from the decisions of this Court which
have elaborated on the context of clause (1) of Article 254.
Clause (2) of Article 254 has also employed the expression
"repugnant" while providing that a law enacted by the
legislature of a State which is repugnant to a law enacted by
Parliament or an existing law on a matter within the
Concurrent List shall, if it has received the assent of the
President, prevail in the State. The decisions of this Court
essentially contemplate three types of repugnancy:
132.1 The first envisages a situation of an absolute or
irreconcilable conflict or inconsistency between a provision
contained in a State legislative enactment with a
Parliamentary law with reference to a matter in the
Concurrent List. Such a conflict brings both the statutes into
a state of direct collision. This may arise, for instance, where
the two statutes adopt norms or standards of behavior or
provide consequences for breach which stand opposed in
direct and immediate terms. The conflict arises because it is
impossible to comply with one of the two statutes without
disobeying the other;
132.2 The second situation involving a conflict between State
and Central legislations may arise in a situation where
Parliament has evinced an intent to occupy the whole field.
The notion of occupying a field emerges when a
Parliamentary legislation is so complete and exhaustive as a
Code as to preclude the existence of any other legislation by
the State. The State law in this context has to give way to a
Parliamentary enactment not because of an actual conflict
with the absolute terms of a Parliamentary law but because
the nature of the legislation enacted by Parliament is such as
to constitute a complete and exhaustive Code on the subject;
and
132.3 The third test of repugnancy is where the law enacted
by Parliament and by the State legislature regulate the same
subject. In such a case the repugnancy does not arise
because of a conflict between the fields covered by the two
enactments but because the subject which is sought to be
covered by the State legislation is identical to and overlaps
with the Central legislation on the subject.
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133. The distinction between the first test on the one hand
with the second and third tests on the other lies in the fact
that the first is grounded in an irreconcilable conflict
between the provisions of the two statutes each of which
operates in the Concurrent List. The conflict between the two
statutes gives rise to a repugnancy, the consequence of which
is that the State legislation will be void to the extent of the
repugnancy. The expression 'to the extent of the repugnancy'
postulates that those elements or portions of the state law
which run into conflict with the central legislation shall be
excised on the ground that they are void. The second and
third tests, on the other hand, are not grounded in a conflict
borne out of a comparative evaluation of the text of the two
provisions. Where a law enacted by Parliament is an
exhaustive Code, the second test may come into being. The
intent of Parliament in enacting an exhaustive Code on a
subject in the Concurrent List may well be to promote
uniformity and standardization of its legislative scheme as a
matter of public interest. Parliament in a given case may
intend to secure the protection of vital interests which
require a uniformity of law and a consistency of its
application all over the country. A uniform national
legislation is considered necessary by Parliament in many
cases to prevent vulnerabilities of a segment of society being
exploited by an asymmetry of information and unequal power
in a societal context. The exhaustive nature of the
Parliamentary code is then an indicator of the exercise of the
State's power to legislate being repugnant on the same
subject. The third test of repugnancy may arise where both
the Parliament and the State legislation cover the same
subject matter. Allowing the exercise of power over the same
subject matter would trigger the application of the concept of
repugnancy. This may implicate the doctrine of implied
repeal in that the State legislation cannot co-exist with a
legislation enacted by Parliament. But even here if the
legislation by the State covers distinct subject matters, no
repugnancy would exist. In deciding whether a case of
repugnancy arises on the application of the second and third
tests, both the text and the context of the Parliamentary
legislation have to be borne in mind. The nature of the
subject matter which is legislated upon, the purpose of the
legislation, the rights which are sought to be protected, the
legislative history and the nature and ambit of the statutory
provisions are among the factors that provide guidance in the
exercise of judicial review. The text of the statute would
indicate whether Parliament contemplated the existence of
State legislation on the subject within the ambit of the
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Concurrent List. Often times, a legislative draftsperson may
utilize either of both of two legislative techniques. The
draftsperson may provide that the Parliamentary law shall
have overriding force and effect notwithstanding anything to
the contrary contained in any other law for the time being in
force. Such a provision is indicative of a Parliamentary intent
to override anything inconsistent or in conflict with its
provisions. The Parliamentary legislation may also stipulate
that its provisions are in addition to and not in derogation of
other laws. Those other laws may be specifically referred to
by name, in which event this is an indication that the
operation of those specifically named laws is not to be
affected. Such a legislative device is often adopted by
Parliament by saving the operation of other Parliamentary
legislation which is specifically named. When such a
provision is utilized, it is an indicator of Parliament intending
to allow the specific legislation which is enlisted or
enumerated to exist unaffected by a subsequent law.
Alternatively, Parliament may provide that its legislation shall
be in addition to and not in derogation of other laws or of
remedies, without specifically elucidating specifically any
other legislation. In such cases where the competent
legislation has been enacted by the same legislature,
techniques such as a harmonious construction can be
resorted to in order to ensure that the operation of both the
statutes can co-exist. Where, however, the competing
statutes are not of the same legislature, it then becomes
necessary to apply the concept of repugnancy, bearing in
mind the intent of Parliament. The primary effort in the
exercise of judicial review must be an endeavour to
harmonise. Repugnancy in other words is not an option of
first choice but something which can be drawn where a clear
case based on the application of one of the three tests arises
for determination.
8.6 Mr. Trivedi has further invited the attention of this Court
to Section 18 of the Central Act of 1962, and has proceeded to
read and rely upon the said provision, which reads as under:-
"Section 18. Application of other laws not barred.
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The provisions of this Act shall be in addition to and not in
derogation of any other law for the time being in force
relating to the acquisition of land."
8.7 Placing reliance on Section 18 of the Central Act of
1962, Mr. Trivedi has further drawn support from the decision
of the Hon'ble Apex Court in the case of M. Karunanidhi v.
Union of India, reported in (1979) 3 SCC 431 to support
his submission on the issue of repugnancy. It is submitted that
in the said decision, the Apex Court was confronted with a
situation involving an alleged inconsistency between a Central
enactment and a State legislation, wherein the true test is
whether compliance with one statute would necessarily entail
disobedience of the other. According to Mr. Trivedi, if both
enactments can be obeyed simultaneously without conflict,
the question of repugnancy does not arise. Applying the
aforesaid principle, it is contended that the provisions of the
impugned State Act and the Central Act operate in their
respective spheres without any irreconcilable inconsistency,
and therefore, the plea of repugnancy advanced on behalf of
the petitioner is misconceived.
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8.8 In response to the pointed query posed by this Court as
to whether the provisions of the Act of 2000 impose any
restrictions upon the landholder whose land is subjected to
acquisition of a limited right of user which are more onerous
in nature as compared to those under the Central Act of 1962,
Mr. Trivedi has submitted that no such onerous conditions are
envisaged under the State enactment. According to Mr.
Trivedi, both enactments operate harmoniously, without
causing any impediment to their respective objects or
resulting in any adverse or conflicting consequences.
9. Mr. Mihir Thakore, learned Senior Advocate appearing
on behalf of respondent No. 2 - Gujarat State Petronet Limited
(GSPL), has submitted that GSPL is the second largest natural
gas transmission infrastructure company in India and, over
the past approximately 25 years, has established an extensive
network of pipelines under the aegis of the Act of 2000. It is
contended that the said infrastructure caters to a substantial
portion of the State of Gujarat and constitutes a critical
component of the gas transmission sector. On this premise, it
is urged that the impugned Act ought not to be invalidated,
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having regard to its significant role in sustaining essential
infrastructure.
9.1 It is further submitted that respondent No. 2 has placed
on record an additional affidavit delineating the details of the
various works and projects undertaken by GSPL, important
paragraphs of which read as under:-
"6.1 GSPL is a government company and is the subsidiary of
Gujarat State Petroleum Corporation Limited, a Government
of Gujarat undertaking, a nodal agency of the State
Government for Gas Grid Project in State of Gujarat. GSPL is
entrusted with the responsibility of creating Gas Grid for
transportation of Gas in the State of Gujarat. The project of
laying pipelines and creating gas grid is a part of the
infrastructure project as envisaged in the "Infrastructure
Agenda Vision 2010" of Gujarat Infrastructure Development
Board and Government of Gujarat. The Industrial Policy of
the State of Gujarat focus on development of "Gas Based
Economy" and the pipeline infrastructure of GSPL is the
backbone for development of Gas Based Economy.
6.6 GSPL pipeline connects all major gas supply sources
located in the State of Gujarat including natural gas fields of
Cairn Energy (India) Private Ltd., GSPC-NIKO, all located in
Hazira, ONGC Gas field located at Olpad, re-gasified LNG
from the LNG terminal promoted by Shell and Total located
in Hazira (which is known as Hazira LNG terminal), the
Petronet LNG Terminal located in Dahej and the land fall
point of gas from Panna Mukta Tapti field located in Hazira.
When LNG from Petronet LNG (PLL) landed in India, GSPL
network was ready to receive gas and a significant portion of
LNG from PLL today is transported through GSPL network.
Presently, there are only two LNG Terminals located in India
and GSPL has pipeline network connected to both the LNG
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Terminals. Further GSPL pipeline network is also connected
to M/s Reliance Gas Transportation Infrastructure Limited
(RGTIL) pipeline network at Atakpardi and Bhadbhut to
provide last mile connectivity for transportation of M/s
Reliance Industries Ltd (RIL) D6 gas from KG Basin to
various power plants fertilizer plants, steel and local
distribution companies with State of Gujarat.
6.8 GSPL has Operational Pipeline Projects of 1874 kms as
on 31st March 2011 located in the State of Gujarat covering
major industrial areas like Hazira, Mora, Utran, Bharuch,
Dahej, Baroda, Ahmedabad, Kalol, Mehsana, Himmatnagar,
Anand, Rajkot etc. Out of the said 1874 kms pipelines,
approx. 1690 kms of pipelines are laid by acquiring rights of
user in land under the Gujarat ROU Act and 184 kms of
pipeline are laid by acquiring rights of user in land under
Central Act of 1962. GSPL has incurred capital expenditure
of approx. Rs.4194 crore up to 31st March 2011 for
completing operational pipeline network.
6.9 Further GSPL is transporting approx over 35 MMSCMD
of gas through the said pipeline network
6.10 Further GSPL has already initiated taking necessary
actions for construction of 1102 kms of additional pipeline in
the state of Gujarat. Upon completion of various pipeline
segments that are construction, GSPL's natural gas
transmission network will reach more areas of the districts
like Amreli, Bhavnagar, Kutchh, Jamnagar and Sabarkantha
where there are concentrations of businesses like Power,
Fertilizers, Automobile and Ceramics, among others.
6.11 Equity shares of GSPL are listed on Mumbai Stock
Exchange and National Stock Exchange limited w.e.f. 16 th
February 2006 and presently the no. of shareholders of the
company are approx 2 Lacs.
6.12 The Company has financed the operational and
expansions projects with a mix of debt and equity. The
Company has outstanding borrowing of approx Rs.1478
Crores from various banks and financial institutions as on
31st May, 2011."
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9.2 Mr. Thakore has further submitted that Entry 42 of List
III (Concurrent List) empowers the legislature to enact laws
pertaining to acquisition and requisition of property. It is
contended that, under the scheme of the Central Act of 1962,
the power to acquire right of user in land is vested in the
Central Government, and to that extent, the field stood
occupied insofar as acquisition by the Union is concerned.
9.3 It is, however, submitted that the aspect relating to
acquisition by the State Government was not expressly
addressed under the said framework. In that view of the
matter, the State Legislature enacted the Act of 2000 so as to
confer upon itself the requisite authority to acquire right of
user in land for the purpose of laying pipelines within the
State. On this premise, it is urged that in order to facilitate
the development of an extensive pipeline network and to
effectively exercise such power at the State level, the
enactment of the Act of 2000 was both necessary and
justified.
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9.4 It has been further submitted that both the Central
enactment and the State legislation contain an express
provision under Section 18 stipulating that the said
enactments are "in addition to and not in derogation of any
other law for the time being in force relating to acquisition of
land." Placing reliance on the aforesaid provision, it is
contended that such a clause has been judicially interpreted
by the Hon'ble Apex Court as indicative of a legislative intent
not to occupy the entire field, but rather to permit the
coexistence of parallel legislations operating in the same
domain. In this regard, reliance is placed upon the decisions
in ITC Ltd. v. Agricultural Produce Market Committee,
reported in (2002) 9 SCC 232 and M. Karunanidhi v.
Union of India, reported in (1979) 3 SCC 431. The Hon'ble
Apex Court in the case of ITC (Supra) records as under:-
"144. Assuming that Chapter III of the Tobacco Act is covered
by Entry 52 of List I, nevertheless, Parliament did not intend
to invalidate any portion of the Markets Act. It has
consciously clarified by Section 31 that it does not intend to
occupy the entire field and has "made space" for the State
legislation and made it clear that the provisions of the
Central Act shall be in addition to and not in derogation of
any other law. The section assumes greater significance since
most of the Markets Acts were in place when the Tobacco Act
was enacted. There are two ways in which such a saving
clause as is contained in Section 31 of the Tobacco Act may
be understood. There is the way which found favour with this
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Court in M. Karunanidhi v. Union of India which held that
such a section clearly evinced the intention of the dominant
legislature leaving "no room for any argument that the State
Act was in any way repugnant to the Central Acts". (SCC p.
450, para 37) There is the other way of reading such a
section in the dominant legislation as incorporating or taking
under its legislative umbrella the allegedly conflicting
provisions of the subservient statute. Either way, the express
words in Section 31 coupled with the duty of courts to
reconcile and uphold legislation, if possible, can only result in
upholding the constitutional validity of the market fee
imposed by the State."
9.5 On the strength of the aforesaid submissions, it is
argued that, in view of the express saving clause contained in
both enactments, no inconsistency or conflict arises between
the Central Act of 1962 and the Act of 2000. It is, therefore,
contended that the question of repugnancy does not arise, and
both legislations are capable of operating harmoniously in
their respective spheres. Consequently, the Act of 2000 is
asserted to be valid and constitutionally sustainable.
Findings and Analysis
10. To examine the precise points for determination and the
exact context of our inquiry, we need to outline the
developments in the matter since its pendency alongwith the
history of the enactment under challenge.
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11. On 07.12.1962, Parliament enacted the Petroleum and
Minerals Pipelines (Acquisition of Right of User in
Land) Act, 1962, traceable to Entry 42 of List III (Concurrent
List) of the Seventh Schedule to the Constitution of India,
which pertains to acquisition and requisitioning of property.
12. Subsequently, on 14.03.2000, the State Legislature of
Gujarat enacted the Gujarat Water and Gas Pipelines
(Acquisition of Right of User in Land) Act, 2000. The said
enactment was stated to be relatable both to Entry 17 of List
II (State List), dealing with water and allied subjects, and
Entry 42 of List III (Concurrent List), concerning acquisition
and requisition of property.
13. Thereafter, on 28.04.2001, the State Legislature enacted
the Gujarat Gas (Regulation of Transmission, Supply and
Distribution) Act, 2001, which the State sought to justify
under Entry 25 of List II (State List), pertaining to gas and gas
works. However, the constitutional validity of such legislative
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competence came to be examined by the Hon'ble Apex Court
in a Presidential Reference under Article 143(1) of the
Constitution, being Special Reference No. 1 of 2001, decided
on 25.03.2004 and reported in (2004) 4 SCC 489. The
Hon'ble Apex Court held that the subject of "natural gas"
falls within the ambit of Entry 53 of List I (Union List),
relating to petroleum and mineral oil resources.
Consequently, it was authoritatively declared that the State
Legislature lacked competence to legislate on the said subject
under Entry 25 of List II, rendering the State Act of 2001
unconstitutional.
14. The submission of Ms. Poojari that the subject matter of
the impugned State Act of 2000 is identical with the subject
matter of the Gujarat Gas (Regulation of Transmission, Supply
and Distribution) Act, 2001, deserves to be rejected at the
very outset, inasmuch as, a comparison of the provisions of
the State Act, 2000 and State Act, 2001 would demonstrate
that while the Act of 2001 was for regulation of transmission,
supply and distribution of Gas, the same cannot be said for
the State Act, 2000. The Hon'ble Apex Court in Association
of Natural Gas (Supra) has categorically has held as under :-
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"41. Under Entry 53 of List I, Parliament has got power to
make legislation for regulation and development of oil fields,
mineral oil resources; petroleum, petroleum products, other
liquids and substances declared by Parliament by law to be
dangerously inflammable. Natural gas product extracted from
oil wells is predominantly comprising of methane. Production
of natural gas is not independent of the production of other
petroleum products; though from some wells the natural gas
alone would emanate, other products may emanate from
subterranean chambers of earth. But all oil fields are
explored for their potential hydrocarbon. Therefore, the
regulation of oil fields and mineral oil resources necessarily
encompasses the regulation as well as development of
natural gas. For free and smooth flow of trade, commerce and
industry throughout the length and breadth of the country,
natural gas and other petroleum products play a vital role.
42. In Re: Cauvery Water Dispute Tribunal 1993, the right to
flowing water of rivers was described as a right 'publici juris',
i.e. a right of public. So also the people of the entire country
has a stake in the natural gas and its benefit has to be shared
by the whole country. There should be just and reasonable
use of natural gas for national development. If one State
alone is allowed to extract and use natural gas, then other
States will be deprived of its equitable share. This position
goes on to fortify the stand adopted by the Union and will be
a pointer to the conclusion that "natural gas' is included in
Entry 53 of List I. Thus, the legislative history and the
definition of 'petroleum', 'petroleum products' and 'mineral
oil resources' contained in various legislations and books and
the national interest involved in the equitable distribution of
natural gas amongst the States - all these factors lead to the
inescapable conclusion that "natural gas" in raw and liquefied
form is petroleum product and part of mineral oil resource,
which needs to be regulated by the Union.
43. Natural gas being a petroleum product, we are of the
view that under Entry 53 List I, Union Govt. alone has got
legislative competence. Going by the definition of gas as
given in Section 2(g) of the Gujarat Act wherein "gas" has
been defined as "a matter of gaseous state which
predominantly consists of methane", it would certainly
include natural gas also. We are of the view that under Entry
25 List II of the Seventh Schedule, the State would be
competent to pass a legislation only in respect of gas and gas-
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works and having regard to collocation of words 'gas and gas
works', this Entry would mean any work or industry relating
to manufactured gas which is often used for industrial,
medical or other similar purposes. Entry 25 of List II, as
suggested for the States, will have to be read as a whole. The
expressions therein cannot be compartmentally interpreted.
The word 'gas' in the Entry will take colour from other words
'gasworks'. In Ballantine's Law Dictionary, 3rd edition, 1969
'Gas Works' is defined as "a plant for the manufacture of
artificial gas". Similarly in Webster's New 20th Century
dictionary, it is defined as "an establishment in which gas for
heating and lighting is manufactured". In the
www.freedictionary.com 'gas works' is explained as "a
manufactory of gas, with all the machinery and
appurtenances; a place where gas is generated." The
meaning of the term 'gas works' is well understood in the
sense that the place where the gas is manufactured. So it is
difficult to accept the proposition that 'gas' in Entry 25 of List
II includes Natural Gas, which is fundamentally different
from manufactured gas in gas works. Therefore, Entry 25 of
List II could only cover manufactured gas and does not cover
Natural Gas within its ambit. This will negative the argument
of States that only they have exclusive powers to make laws
dealing with Natural Gas and Liquefied Natural Gas. Entry 25
of List II only covers manufactured gas. This is the clear
intention of framers of the Constitution. This reading will no
way make that entry a 'useless lumber' as feared by the
States, because Natural Gas was never intended to be
covered by that entry. It is also difficult to accept the
argument of States that all 'gas' could be categorized as
dangerously inflammable and thus arriving at the conclusion
that Natural Gas is also covered in State List because this
differentiation is based not on the characteristics of gas, but
on the manner of its origin. Entry 25 of List II covers the gas
manufactured and used in gas works. In view of this specific
Entry 53, for any petroleum and petroleum products, the
State Legislature has no legislative competence to pass any
legislation in respect of natural gas. To that extent, the
provisions-contained in the Gujarat Act are lacking legislative
competence.
44. In the result, the Reference is answered in the following
terms :
Q.1. Whether Natural Gas in whatever physical form
including Liquefied Natural Gas (LNG) is a Union
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subject covered by Entry 53 of the List I and the Union
has exclusive legislative competence to enact.
A .1. Natural Gas including Liquefied Natural Gas
(LNG) is a Union subject covered by Entry 53 of List I
and the Union has exclusive legislative competence to
enact laws on natural gas.
Q. 2. Whether States have legislative competence to
make laws on the subject of natural gas and liquefied
natural gas under Entry 25 of List II of the Seventh
Schedule to the Constitution.
A. 2. The States have no legislative competence to
make Saws on the subject of natural gas and liquefied
natural gas under Entry 25 of List II of the Seventh
Schedule to the Constitution.
Q. 3. Whether the State of Gujarat had legislative
competence to enact the Gujarat Gas (Regulation of
Transmission, Supply & Distribution) Act, 2001.
A.3. The Gujarat Gas (Regulation of Transmission,
Supply & Distribution) Act, 2001, so far as the
provisions contained therein relating to the natural gas
or liquefied natural gas (LNG) are concerned, is without
any legislative competence and the Act is to that extent
ultra vires of the Constitution."
15. In the interregnum, on 05.09.2005, this Court, in the
case of Anil @ Bipinchandra Chotubhai Desai v. State of
Gujarat (rendered in SCA No. 18013 of 2005 and allied
matters), upheld the legislative competence of the State
Legislature to enact the State Act of 2000, holding that the
said legislation is referable to Entry 42 of List III of the
Seventh Schedule.
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16. Thereafter, the petitioner herein invoked the jurisdiction
of the Hon'ble Apex Court under Article 32 of the Constitution
by filing Writ Petition (Civil) No. 400 of 2006 on 12.08.2006,
inter alia challenging the vires of the State Act of 2000. The
respondent-State filed its affidavit-in-reply on 07.03.2007
opposing the said challenge. Subsequently, by order dated
16.09.2010, the Hon'ble Apex Court disposed of the said writ
petition by granting liberty to the petitioner to approach this
Court for appropriate relief.
17. Pursuant thereto, the petitioner instituted the present
writ proceedings before this Court on 15.10.2010, once again
assailing the constitutional validity of the State Act of 2000,
primarily on the ground of lack of legislative competence.
Upon consideration, this Court, by order dated 19.07.2011,
admitted the petition and, inter alia, delineated the core issue
for adjudication, observing that "the only question involved in
this case is whether Act 5 of 2000 enacted by the Legislature of the
State is inconsistent with the Act 50 of 1962 enacted by the
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Parliament and thereby is repugnant as per Article 254 of the
Constitution of India."
18. In the aforesaid context, it is clear that the petitioners
are not permitted to raise the issue of Entry under which the
impugned enactment came to be passed. In other words,
whether the impugned enactment is relatable to Entry 42 of
the Concurrent List (List-III) or Entry 53 of the Union List
(List-I) is not a matter which is open for the petitioners to
press after the decision of this Court in the case of Anil @
Bipinchandra (Supra) dated 05.09.2005. By order dated
19.07.2011, a Coordinate Bench has categorically held as
under:-
"Admit. The only question Involved in the case is
weather Act 5 of 2000 enacted by the Legislature of the
State is inconsistent with the Act 50 of 1962 elected by
the Parliament and thereby is repugnant as per Article
254 of the Constitution of India."
19. From the decision of the Hon'ble Apex Court in the case
of Rustom Cavasjee Cooper v. Union of India, reported in
(1970) 1 SCC 248, it is an accepted and unchallenged
position that all enactments pertaining to
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acquisition/requisition of land or exercise of eminent domain
have been enacted with the power being traced back to Entry
42 of the Concurrent List (List-III). R. C. Cooper (Supra) is
now stare decisis, therefore, no submission of the learned
Counsel for the petitioners to the contrary can be accepted by
us. Relevant paragraphs of the said judgment are extracted
hereinbelow:-
"38. Before the Constitution (Seventh Amendment) Act,
Entry 33 List I invested the Parliament with power to enact
laws with respect to acquisition or requisitioning for the
purpose of the Union, and Entry 36 List II conferred upon the
State Legislature the power to legislate with respect to
acquisition or requisitioning for the remaining purposes.
Those entries are now deleted, and a single Entry 42 List III
invests the Parliament and the State Legislatures with power
to legislate with respect to "acquisition and requisitioning" of
property. By Entry 42 in the Concurrent List power was
conferred upon the Parliament and the State Legislatures to
legislate with respect to "Principles on which compensation
for property acquired or requisitioned for the purpose of the
Union or for any other public purpose is to be determined,
and the form in which such compensation is to be given".
Power to legislate for acquisition of property is exercisable
only under Entry 42 of List III, and not as an incident of the
power to legislate in respect of a specific head of legislation
in any of the three lists : Rajahmundry Electric Supply
Corporation Ltd. v. The State of Andhra. Under that entry
"property" can be compulsorily acquired. In its normal
connotation "property" means the "highest right a man can
have to anything, being that right which one has to lands or
tenements, goods or chattels which does not depend on
another's courtesy : it includes ownership, estates and
interests in corporeal things, and also rights such as trade-
marks, copyrights, patents and even rights in personam
capable of transfer or transmission, such as debts; and
signifies a beneficial right to or a thing considered as having
a money value, I especially with reference to transfer or
succession, and to their capacity of being injured". The
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expression "undertaking" in s. 4 of Act 22 of 1969 clearly
means a going concern with all its rights, liabilities and
assets-as distinct from the various rights and assets which
compose it. In Halsbury's Laws of England, 3rd Edn., Vol.
6, Art. 75 at p. 43, it is stated that "Although various
ingredients go to make up an undertaking, the term describes
not the ingredients but the completed work from which the
earnings arise."
39. Transfer of and vesting in the State Corporations of the
entire undertaking of a going concern is contemplated in
many Indian Statutes: e.g., Indian Electricity Act, 1910, ss. 6,
7 & 7A; Air Corporation Act, 1953, ss. 16 & 17; Imperial Bank
of India: Act, 1920, ss. 3 & 4; State Bank of India Act,
1955, S. 6(2), (3) & (4); State Bank of India (Subsidiary
Banks) Act, 1959; Banking Regulation Act, 1949, S. 36 AE;
and Cotton Textile Companies Act, 1967, ss. 4-(1) & 5(1).
Power to legislate for acquisition of "property" in Entry 42
List III therefore includes the power to legislate for
acquisition of an undertaking. But, says Mr. Palkhivala,
liabilities of the banks which are included in the connotation
of the expression "undertaking", cannot be treated as "
property". It is however the assets, rights and obligations of a
going concern which constitute the undertaking: the
obligations and liabilities of the business form an integral
part of the undertaking, and for compulsory acquisition
cannot be divorced from the assets, rights and privileges. The
expression "property" in Entry 42 List III has a wide
connotation, and it includes not only assets, but the
organisation, liabilities and obligations of a going concern as
a unit. A law may, therefore, be enacted for compulsory
acquisition of an undertaking as defined in s. 5 of Act 22 of
1969."
20. Further, the Entry of an enactment is relatable to the
power of the enacting body. Therefore, an Act may be
challenged on the ground that the enacting body did not have
the power/competence to legislate because the subject matter
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of the enactment falls outside its power/competence. Once the
said hurdle is overcome, it is accepted that Parliament/ the
State Legislature had power/competence to enact it. The vires
of the Act could still be examined by the Constitutional Court
on the ground of it being inconsistent and consequently
repugnant to an enactment of Parliament within the meaning
of Article 254 of the Constitution of India.
21. In the present case, we are no longer concerned as to
whether the subject matter of the impugned Act falls within
the competence of the State legislature and therefore, we
need not examine whether the subject matter is relatable to
Entry 42 of the Concurrent List (List-III) or Entry 53 of the
Union list (List-I), inasmuch as, the same has already been
answered by a Coordinate Bench of this Court in Anil @
Bipinchandra (Supra).
22. We may only note the following paragraph in Anil @
Bipinchandra (Supra) as under:-
"Before concluding we deem it proper to mention that it is
neither the pleaded case of the petitioners nor it has been
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argued before us that the 2000 Act is in conflict with any
other law enacted by the Parliament in respect of the subject
enumerated in Entry 42 of List III of the Seventh Schedule of
the Constitution and, therefore, we have not delved on that
question."
23. After the aforesaid decision of this Court was placed by
the learned Advocate General, this Court had put a pointed
query to the learned Counsel for the petitioners as to whether
it is the petitioners' case the aforesaid decision could be said
to be per incurium, inasmuch as, according to us that could
have been the only window to broaden the challenge beyond
what was permissible after the aforesaid decisions of this
Court dated 05.09.2005, reported as 2005:GUJHC:20546-
DB, and dated 19.07.2011, rendered in this very matter (SCA
No. 15368 of 2010 with SCA No. 5098 of 2010), which have
become final. Learned Counsel for the petitioners, except
making an attempt to re-argue the issue, namely that the
impugned State Act, 2000 was in effect, beyond the
competence of the State Legislature due to the subject matter
being covered under Entry 53 of the Union List (List-I), failed
to point out how the aforesaid decision dated 05.09.2005 and
19.07.2011 could be held by us to be per incurium. Therefore,
we hold that the scope of challenge before us would be limited
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only to the window left open by the decision dated 05.09.2005
and 19.07.2011. The relevant portion of the decision dated
05.09.2005 is extracted hereinbelow:-
"Before concluding we deem it proper to mention that it is
neither the pleaded case of the petitioners nor it has been
argued before us that the 2000 Act is in conflict with any
other law enacted by the Parliament in respect of the subject
enumerated in Entry 42 of List III of the Seventh Schedule of
the Constitution and, therefore, we have not delved on that
question.
For the reasons mentioned above, we hold that The Gujarat
Water and Gas Pipelines (Acquisition of Right of User in
Land) Act, 2000 is within the legislative competence of the
State and by enacting this piece of legislation the State
cannot be said to have encroached on the Union's power of
legislation in respect of the matters enumerated in List I of
the Seventh Schedule."
23.1 The relevant portion of the decision dated 19.07.2011 is
extracted hereinbelow:-
"4. It is stated that the aforesaid question has not been
considered nor decided by the Division bench in the case of
Anil @ Bipinchandra Chotubhai Desai vs. State of Gujarat and
others (supra).
5. In view of such submission made by the counsel for the
petitioner, at his request we allow the petitioner to make
necessary amendment to the pleadings and prayer clause of
the writ petition.
6. Admit. The only question involved in this case is
whether Act 5 of 2000 enacted by the Legislature of the State
is inconsistent with the Act 50 of 1962 enacted by the
Parliament and thereby is repugnant as per Article 254 of the
Constitution of India."
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24. Both the Counsel for the petitioners and the learned
Advocate General have relied upon the decision of the Hon'ble
Apex Court in Laljibhai Savalia (Supra). Therefore, it is
necessary to extract the relevant paragraphs of the said
decision for ready reference:
"18. Under the provisions of the PMP Act, what is
taken over or acquired is the right of user to lay and maintain
pipelines in the sub-soil of the land in question. The
provisions of the PMP Act get attracted upon the requisite
Notification having been made under Section 3. If it appears
to the Central Government that it is necessary in the public
interest that for the transport of petroleum or any minerals
any pipeline be made and for the purposes of laying such
pipelines it is necessary to acquire the right of user in any
land, it may by Notification issued in exercise of power under
Section 3 declare its intention to acquire such right of user.
The Act then provides for making of objections by those
interested in land, which objections are thereafter to be dealt
with by the Competent Authority. The report made by the
Competent Authority is then placed before the Central
Government for appropriate decision and after considering
such report and the relevant material on record, if the
Central Government is satisfied that such land is required for
laying any pipeline for the transport of petroleum or any
other mineral, it may declare by Notification in the official
gazette that the right of user in the land for laying the
pipeline be acquired. Upon the publication of such
declaration under Section 6 the right of user in the land so
specified vests absolutely in the Central Government or in the
State Government or in the Corporation free from all
encumbrances. Thus what stands acquired is the right of user
in the land in question for laying pipeline for the transport of
petroleum or any mineral and not the land itself.
19. The Statement of Objects and Reasons throws
light on this facet of the matter and shows that although the
land could be acquired outright for laying such pipelines
under the Land Acquisition Act, 1894 such procedure for
acquisition would be costly. For instance, as the facts of the
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present case disclose the pipeline from Kakinada to Jamnagar
would be over 1470 kilometers in length. 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. The
Act is thus 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".
20. At the same time Section 18 specifically lays
down that the provisions of the PMP 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 Act, 1894. For instance, for monitoring
the pressure gauges or in cases where pipelines are
branching in different directions, implementations to regulate
the flow may require permanent establishments necessitating
acquisition of the land itself rather than acquisition of a mere
right of user. The PMP Act is thus a special enactment
designed to achieve the purpose of laying pipelines as
efficient means of transportation and with this idea it is only
the right of user in the land to lay such pipelines is acquired.
21. Section 7 stipulates that no pipeline be laid under
any land which, immediately before the date of Notification
under Section 3(1) was used for residential purposes, or any
land on which there is permanent structure in existence or
any land which is appurtenant to a dwelling house. It is clear
that only such lands are to be considered for acquisition of
right of user therein which are either lying fallow or are
being put to agricultural use. It is obvious that care is taken
to cause least possible damage to the holdings of the
concerned land-owners. According to Section 9, after the
pipelines are laid, the owner/occupier could use the land for
the purpose for which it was being used before the
Notification under Section 3(1) was issued. Section 9
certainly, imposes some restrictions in the sense that such
owner/occupier cannot thereafter construct any building or
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any other structure or construct or excavate any lake,
reservoir or dam or plant any tree on such land. Barring such
restrictions, the owner/occupier is within his rights to use the
land for the same purpose for which the land was earlier
being used. The point is clear that neither the ownership in
respect of the land itself nor the right to occupy or possess
that land is taken over permanently and those rights continue
to remain with the owner/occupier. What is taken over is only
the right of user namely to lay pipelines in the sub-soil of the
land in question and the restrictions imposed by Section 9 are
designed to safeguard and secure the pipelines underneath.
22. As laid down by this Court in Jilubhai Nanbhai
Khachar and others (Supra), the term property in legal sense
means an aggregate of rights which are guaranteed and
protected by law and would extend to entirety or group of
rights inhering in a person. It was observed by this Court as
under:
"42. Property in legal sense means an aggregate
of rights which are guaranteed and protected by law. It
extends to every species of valuable right and interest,
more particularly, ownership and exclusive right to a
thing, the right to dispose of the thing in every legal
way, to possess it, to use it, and to exclude everyone
else from interfering with it. The dominion or indefinite
right of use or disposition which one may lawfully
exercise over particular things or subjects is called
property. The exclusive right of possessing, enjoying,
and disposing of a thing is property in legal parameters.
Therefore, the word 'property' connotes everything
which is subject of ownership, corporeal or incorporeal,
tangible or intangible, visible or invisible, real or
personal; everything that has an exchangeable value or
which goes to make up wealth or estate or status.
Property, therefore, within the constitutional
protection, denotes group of rights inhering citizen's
relation to physical thing, as right to possess, use and
dispose of it in accordance with law. In Ramanatha
Aiyar's The Law Lexicon, Reprint Edn., 1987, at p.1031,
it is stated that the property is the most comprehensive
of all terms which can be used, inasmuch as it is
indicative and descriptive of every possible interest
which the party can have. The term property has a most
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extensive signification, and, according to its legal
definition, consists in free use, enjoyment, and
disposition by a person of all his acquisitions, without
any control or diminution, save only by the laws of the
land."
23. We therefore proceed on the premise that the
right of user sought to be taken over under the provisions of
the PMP Act amounts to acquisition of one of the facets of
property rights which inher in the owner/occupier. For the
acquisition of such right of user, the compensation is
prescribed in terms of Section 10 of the PMP Act. There are
two elements of compensation under Section 10. The first
part deals with any damage, loss or injury sustained by any
owner/occupier as a result of exercise of powers conferred by
Sections 4,7 and 8 of the PMP Act that is to say the actual
damage, loss or injury sustained because of entry upon
and/or digging or marking levels and survey of land under
Section 4 or while actual laying of the pipeline including
digging of trenches and carrying of requisite material for
such operations under Section 7 or at any stage of
maintenance, examinations, repairing and altering or
removing of pipeline in terms of Section 8 of the PMP Act.
The measure for determining such compensation is given
with sufficient clarity in sub-section (3) of Section (10). 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 in terms of Section 4, Section 7 or Section 8 of the
Act. One of the indicia under sub-Section 3 could be "any
injury to any other property whether movable or immovable,
or the earnings of such persons in any other manner". All
possible acts as a result of which the damage, loss or injury
could be so occasioned are taken care of and stipulated in
said sub-section. Over and above such compensation for
actual damage, loss or injury, additional compensation @
10% of the market value of the land is given to the
owner/occupier under sub-Section 4 of Section 10 for taking
over the right of user to lay the pipelines. This element of
additional compensation is independent of any actual loss or
damage and is purely linked to the value of the land for the
purposes of computation. This element of compensation is
purely for acquisition of right of user simplicitor. The
damage/loss or injury to the property is separately dealt with
under first part of Section 10 and has to be compensated in
toto. Theoretically, it is possible that in a barren piece of land
as a result of exercise of powers under Sections 4, 6 and 7
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there may not be any damage/loss or injury. However
compensation under sub-section (4) for acquisition of right of
user would still be independently payable. 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 under first part of Section 10.
This part will also be clear from para (iii) of Statement of
Objects and Reasons extracted above (in para 2).
24. The provisions of PMP Act do specify the
principles and the manner in which the compensation is to be
determined. Not only the actual damage, loss or injury
suffered as a result of exercise of various activities in terms
of Sections 4, 6 and 7 are compensated in toto but
additionally compensation linked to the market value of land
is also to be given for acquisition of right of user in respect of
such land. What is taken over is mere right of user to lay the
pipeline in the sub-soil of land in question, leaving the title to
the land as well as the right to possess that land intact in the
hands of the land owner/occupier. It is no doubt that the
enjoyment thereof after the pipelines are laid is impaired to a
certain extent, in that the owner/occupier cannot raise any
permanent construction or cause any excavation or plant any
trees. Barring such restrictions, the enjoyment and the right
of possession remains unaltered. The lands under which the
pipeline would be laid are primarily, going by the mandate
of Section 7, agricultural or fallow and there would normally
be no occasion for any rendering of the holding completely
unfit for any operations. Even in such cases where the
holding is rendered unfit, sub- section 3(iii) of Section
10 could be relied upon and any diminution in market value
as permanent impairment could sustain a claim for
compensation. The principles of compensation as detailed in
the PMP Act are thus reasonable and cannot in any way be
termed as illusory. The principle laid down in H.D. Vora v.
State of Maharashtra (Supra) has no application at all."
25. Thus, it is clear to us that Laljibhai Savalia (Supra)
has clearly held that the Central Act of 1962 is essentially for
the purpose of acquisition of right of user in land for laying of
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pipelines. The Central Act of 1962 is not an act for laying of
pipelines and therefore, it is relatable to "acquisition of right
of user in land" and therefore relatable to Entry 42 of the
Concurrent List (List-III) of Seventh Schedule to the
Constitution of India.
26. In view of the aforesaid, we now proceed to examine
whether the Central Act of 1962 occupies the field, leaving no
scope for the State to legislate on the subject. If the answer of
the above is in the affirmative, then the impugned Act of 2000
must be struck down as beyond the competence of the State
Legislature. Further, if the answer to the above question is in
the negative, then the further examination of this Court would
be only to the effect as to whether any portion of the State Act
collides with and hence become repugnant to the Central Act
of 1962.
27. For the purpose of a close scrutiny and an endeavour to
ascertain the correct legal position, this Court considers it
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apposite to examine the Statement of Objects and Reasons
underlying both the Central as well as the State enactments.
27.1 In that context, the Statement of Objects and
Reasons of the Petroleum and Minerals Pipelines (Acquisition
of Right of User in Land) Act, 1962 reads as under:-
"STATEMENT OF OBJECTS AND REASONS
1. As a result of the implementation of plans for the
development of petroleum resources in the country, it is
anticipated that in the next few years there will be a
substantial increase in the production of crude oil, natural
gas and petroleum products by the public sector oilfields and
refineries in India. It has therefore become necessary to lay
petroleum pipelines in the country to serve as an efficient and
cheap means of transportation and distribution of petroleum
and petroleum products.
2. Although land can be acquired outright for laying such
pipelines under the Land Acquisition Act, 1894 the procedure
for such acquisition is long-drawn and costly. Since the
petroleum pipelines will be laid underground, outright
acquisition of land is not necessary. Therefore, in the case of
these pipelines, it is considered sufficient to acquire the mere
right of user in the land for laying and maintaining the
pipelines. The Bill seeks to achieve the above purpose.
3. The main features of the Bill are--
(i) No right of user of land can be acquired for the
purpose of laying pipelines unless the Central
Government declares its intention by notification
in the Official Gazette, and unless objections, if
any, filed within twenty-one days of that
notification are disposed of by the competent
authority.
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(ii) When final declaration about acquisition is
made, the right to use land for the purpose of
laying pipelines will vest in the Central
Government, State Government or the
corporation, as the case may be but
notwithstanding such acquisition, the owner or
occupier of the land shall be entitled to use the
land for the purpose for which such land was put
to use immediately before the declaration by the
Central Government. But after the date of
acquisition, he shall not construct any building or
any other structure or construct or excavate any
tank, well, reservoir or dam or plant any tree, on
that land.
(iii) Compensation for the damage, loss or injury
sustained by any person interested in the land
shall be payable to such person. Besides this,
compensation calculated at ten per cent of the
market value of the land on the date of the
preliminary notification is also payable to the
owner and to any other person whose right of
enjoyment in the land has been affected by reason
of the acquisition. The compensation in both cases
is to be determined by the competent authority in
the first instance, and an appeal lies from its
decision to the District Judge."
27.2 Similarly, the Statement of Objects and Reasons of
the Gujarat Water & Gas Pipelines (Acquisition of Right of
User in Land) Act, 2000 reads as under:-
"STATEMENT OF OBJECTS AND REASONS
The state government has undertaken the
implementation of water supply projects in the state, the
major one of which is sardar sarovar canal based drinking
water supply project which itself will require laying of about
2700 kms. of pipelines for transport of water from one place
to another.
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Gujarat infrastructure development board has given
locational clearance to some LNG import terminals in the
state and the proposed gas grid shall link these LNG
terminals and other gas supply sources to various demand
centres in the state. The gas project linking various supply
points including LNG terminals with various gas demand
centres in and around Gujarat has been planned. The
proposed gas grid is high pressure trunk pipeline system
requiring laying of about 1500 kms of pipelines.
Although land can be acquired outright for laying such
pipelines under the Land Acquisition Act, 1894, the
procedure for such acquisition is long drawn and costly.
Since the water and gas pipeline will be laid underground,
outright acquisition of land is not necessary. Therefore, in the
case of water and gas pipelines, it is considered sufficient to
acquire the mere right of user in the land for laying and
maintaining the pipelines. This Bill seeks to achieve the
aforesaid objects.
The main features of the Bill are-
(i) No right of user in land can be acquired for the
purpose of laying pipelines unless the State
Government declares its intention by notification
in the Official Gazette, and unless objections, if
any, filed within thirty days of that notification are
disposed of by the competent authority.
(ii) When final declaration about the acquisition is
made, the right to use the land for the purpose of
laying pipelines will vest in the State Government
or, as the case may be, the Corporation but
notwithstanding such acquisition, the owner or
occupier of the land shall be entitled to use the
land for the purpose for which such land was put
to use immediately before the declaration by the
State Government. But after the date of
acquisition, he shall not construct any building or
any other structure or construct or excavate any
tank, well, reservoir or dam or plant any tree on
that land.
(iii) Compensation for the damage, loss or injury
sustained by any person interested in the land
shall be payable to such person. Besides this,
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compensation calculated at ten percent, of the
market value of the land on the date of the
preliminary notification is also payable to the
owner and to any other person whose right of
enjoyment in the land has been affected by reason
of the acquisition. The compensation in both the
case is to be determined by the competent
authority in the first instance, and an appeal lies
from the decision to the Collector."
28. From a comparison of the Statement of Object and
Reasons (SOR) of the Central Act of 1962 and the impugned
State Act respectively, we immediately noticed the
commonality of the intention of Parliament and the State
Legislature respectively in enacting the respective statutes. It
will be seen that the first paragraph of the SOR of the Central
Act of 1962 deals with the necessity of laying petroleum
pipelines in the country, whereas the first two paragraphs of
the SOR of the impugned State Act deals with the necessity of
laying pipelines for the transport of water and the Liquefied
Natural Gas (LNG). The second paragraph of the SOR of the
Central Act of 1962 correspondents to the third paragraph of
the SOR of the impugned State Act namely that it is necessary
to "acquire the mere right of user in the land for laying and
maintaining the pipelines." To us, this is the object of both the
enactments which we are comparing. The rest of the SOR
relate to the procedural aspects of the aforementioned central
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object i.e., "acquire the mere right of user in the land for
laying and maintaining the pipelines."
29. It is thus clear that both the aforesaid enactments have
the same objective. It is only that the pipelines for which the
right of user is sought to be acquired are likely to carry
different products. Therefore, we need to examine whether
after the enactment of the Central Act of 1962, was there any
further scope to legislate on the subject by the State
Legislature? For the aforesaid purpose, we have compared the
Central Act of 1962 and the State Act, 2000, as under:
Comparision of the Central Act, 1962 & the State Act, 2000
The Petroleum and Minerals The Gujarat Water and Gas
Pipelines (Acquisition of Pipelines (Acquisition of
Right of User in Land) Act, Right of User in Land) Act,
1962 2000
Preambl An Act to provide for the An Act to provide for the
e acquisition of in right of user in acquisition of right of user in
land [for laying of pipelines for land for laying water pipelines
the transport of petroleum and and gas pipelines in the State
minerals] and for matters of Gujarat and for the matters
connected therewith. Be it connected therewith. It is
enacted by Parliament in the hereby enacted in the fifth-first
Thirteenth Year of the Republic Year of the Republic of India as
of India as follows :- follows:-
1. Short title, extent and Short title, extent and
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application :- commencement :-
(1) This Act may be called the (1) This Act may be called the
Petroleum and Minerals Gujarat Water and Gas
Pipelines (Acquisition of Right of Pipelines (Acquisition of Right
User in Land) Act, 1962. of User in Land) Act, 2000.
(2) It extends to the whole of (2) It extends to the whole of
India except the State of Jammu the State of Gujarat.
and Kashmir. (3) It shall come into force on
(3) It applies in the first such date as the State
instance to the whole of the Government may by
State of West Bengal, Bihar, notification in the Official
Uttar Pradesh and Gujarat and Gazette, appoint.
the Union territory of Delhi; and
the Central Government may, by
notification in the Official
Gazette, declare that this Act
shall also apply to such other
State or Union territory and
with effect from such date as
may be specified in that
notification and thereupon
provisions of this Act shall apply
to that State or Union territory
accordingly.
2. Definitions :- Definitions :-
In this Act, unless the context In this Act, unless the context
otherwise requires,- otherwise requires,-
(a) "competent authority" (a) "competent authority"
means any person or authority means any person or authority
authorised by the Central authorised by the State
Government, by notification in Government by notification in
the Official Gazette, to perform the Official Gazette, to perform
the functions of the competent, the functions of the competent
authority under this Act and authority under this Act;
different persons or authorities (b)"Corporation" means any
may be authorised to perform body corporate established
all or any of the functions of the under any Gujarat Act and
competent authority under this includes
Act in the same area or different (i) a Company formed and
areas specified in the registered under the
notification; Companies Act, 1956 (I of
(b) "corporation" means any 1956); and
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body corporate established (ii) a Company formed and
under any Central, Provincial or registered under any law
State Act, and includes - relating to companies formerly
(i) a company formed and in force in any part of India
registered under the Companies (c) "gas" means a matter in
Act, 1956; and gaseous state which
(ii) a company formed and predominantly consists of
registered under any law methane;
relating to companies formerly (d) "prescribed" means
in force in any part of India; prescribed by rules made
[(ba)"minerals" have the under this Act.
meanings assigned to them in
the Mines Act, 1952 (35 of
1952), and include mineral oils
and stowing sand but do not
include petroleum;]
(c) "petroleum" has the same
meaning as in the Petroleum
Act, 1934, and includes natural
gas and refinery gas;
(d) "prescribed" means
prescribed by rules made under
this Act.
3. Publication of notification for Publication of notification
acquisition. for acquisition.
(1) Whenever it appears to the (1) Whenever it appears to the
Central Government that it is State Government that it is
necessary in the public interest necessary in the public interest
that for the transport of that for the transport of water
petroleum or any mineral from or, as the case may be, gas
one locality to another locality, from one area to another area,
pipelines may be laid by that pipelines may be laid by the
Government or by any State State Government, or, the
Government or a corporation Corporation and that for the
and that for the purpose of purpose of laying down such
laying such pipelines, it is pipelines, it is necessary to
necessary to acquire the right of acquire the right of user in any
user in any land under which land under which such
such pipelines may be laid, it pipelines may be laid. It may,
may, by notification in the by notification in the Official
Official Gazette, declare its Gazette, declare its intention to
intention to acquire the right of acquire the right of use
user therein. therein.
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(2) Every notification under sub- (2) Every notification under
section (1) shall give a brief sub-section (1) shall give a
description of the land. brief description of the land.
(3) The competent authority (3) The competent authority
shall cause the substance of the shall cause the substance of
notification to be published at the notification to be published
such places and in such manner at such places and in such
as may be prescribed. manner as may be prescribed.
4. Power to enter, survey, etc. Hearing of objections.
On the issue of a notification (1) Any person interested in the
under sub-section (1) of section land may, within thirty days
3, it shall be lawful for any from the date of publication of
person authorised by the the notification under sub-
Central Government or by the section (1) of section 3, object
State Government or the to the laying of the pipelines
corporation which proposes to under the land.
lay pipelines for transporting (2) Every objection shall be
petroleum or any mineral and made to the competent
his servants and workmen- authority in writing and shall
(a) to enter upon and survey set out the grounds thereof and
and take levels of any land the competent authority shall
specified in the notification; give the objector an
(b) to dig or bore into the sub- opportunity of being heard
soil; either in person or by a legal
(c) to set out the intended line practitioner and may, after
or work; hearing all such objections and
(d) to mark such levels, after making such further
boundaries and line by placing inquiry, if any, as that authority
marks and cutting trenches; thinks necessary, by order
(e) where otherwise survey either allow or disallow the
cannot be completed and levels objections.
taken and the boundaries and (3) Any order made by the
line marked, to cut down and competent authority under sub-
clear away any part of any section (2) shall be final.
standing crop, fence or jungle;
and
(f) to do all other acts necessary
to ascertain whether pipelines
can be laid under the land:
Provided that while exercising
any power under this section,
such person or any servant or
workman of such person shall
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cause as little damage or injury
as possible to such land.
5. Hearing of objections. Power to enter, survey, etc.
(1) Any person interested in the On the issue of the notification
land may, within twenty-one under sub-section (1) of section
days from the date of the 3, it shall be lawful for any
notification under sub-section person authorised by the State
(1) of section 3, object to the Government or, as the case
laying of the pipelines under the may be, the Corporation which
land. proposes to lay pipelines for
(2) Every objection under sub- transporting water or, as the
section (1) shall be made to the case may be, gas, and its
competent authority in writing servants and workmen-
and shall set out the grounds (a) to enter upon and survey
thereof and the competent and take levels of any land
authority shall give the objector specified in the notification;
and opportunity of being heard (b) to dig or bore into the sub-
either in person or by a legal soil;
practitioner and may, after (c) to set out the intended line
hearing all such objections and of work;
after making such further (d) to mark such levels,
inquiry, if any, as that authority boundaries and line by placing
thinks necessary, by order marks and cutting trenches;
either allow or disallow the (e) where otherwise survey
objections. cannot be completed and levels
(3) Any order made by the taken and the boundaries and
competent authority under sub- lines marked, to cut down and
section (2) shall be final. clear away any part of any
standing crop, fence or jungle;
and
(f) to do all other acts
necessary to ascertain whether
pipelines can be laid under the
land:
Provided that while exercising
any power under this section,
such person or any servant or
workman of such person shall
cause a little damage or injury
as possible to such land.
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6. Declaration of acquisition of Declaration of acquisition of
right of user. right of user.
(1) Where no objections under (1) Where no objection under
sub-section (1) of section 5 have subsection (1) of section 4 has
been made to the competent been made to the competent
authority with the period authority within the period
specified therein or where the specified therein or where the
competent authority has competent authority has
disallowed the objection under disallowed the objections under
sub-section (2) that section, the sub-section (2) of that section,
authority shall, as soon as may that authority shall, as soon as
be either make a report in may be, submit a report
respect of the land described in accordingly to the State
the notification under such- Government and upon receipt
section (1) of section 3, or make of such report, the State
different reports in respect of Government shall declare, by
different parcels of such land, to notification in the Official
the Central Government Gazette, that the right of user
containing his recommendations of land for laying the pipelines
on the objections, together with shall be acquired.
the record of the proceedings (2) On the publication of the
held by him, for the decision of declaration under sub-section
that Government and upon (1), the right of user in the land
receipt of such report the shall vest absolutely in the
Central Government shall, if State Government free from all
satisfied that such land is encumbrances.
required for laying any pipelines (3) Where in respect of any
for the transport of petroleum land, a notification has been
or any mineral declare, by issued under sub-section (1) of
notification in the Official section 3, but no declaration
Gazette, that the right of user in under this section has been
the land for laying the pipelines published within a period of
should be acquired and different one year from the date of that
declarations may be made from notification, that notification
time to time in respect of shall cease to have effect on
different parcels of the land the expiration of the said
described in the notification period.
issued under sub-section (1) of (4) Notwithstanding anything
section 3, irrespective of contained in sub-section (2),
whether one report or different the State Government may, on
reports have been made by the such terms and conditions as it
competent authority under this may think fit, to impose, direct
section. by order in writing that the
(2) On the publication of the right of user in the land for
declaration under, sub-section laying the pipelines shall,
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(1), the right of user in the land instead of vesting in the State
specified therein shall vest Government, vest either on the
absolutely in the Central date of publication of the
Government free from all declaration or, on such other
encumbrances. date as may be specified in the
(3) Where in respect of any order, in the Corporation
land, a notification has been proposing to lay the pipelines
issued under sub-section (1) of and thereupon the right of such
section 3 but no declaration in user in the land shall, subject
respect of any portion of land to the terms and conditions so
covered by that notification has imposed, vest in that
been published under this Corporation free from all
section within a period of one encumbrances.
year from the date of that
notification, that notification
shall cease to have effect on the
expiration of that period.
(3A) No declaration in respect
of any land covered by a
notification issued under sub-
section (1) of section 3,
published after the
commencement of the
Petroleum Pipelines (Acquisition
of Right of User in Land)
Amendment Act, 1977 shall be
made after the expiry of three
years from the date of such
publication.
(4) Notwithstanding anything
contained in sub-section (2), the
Central Government may, on
such terms and conditions as it
may think fit to impose, direct
by order in writing, that the
right of user in the land for
laying the pipelines shall
instead of vesting in the Central
Government vest, either on the
date of publication of the
declaration or, on such other
date as may be specified in the
direction in the State
Government or the corporation
proposing to lay the pipelines
and thereunder the right of such
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user in the land shall, subject to
the terms and conditions so
imposed; vest in that State
Government or corporation, as
the case may be, free from all
encumbrances.
7. Central Government or State Laying of pipelines.
Government or Corporation
to lay pipelines. (1) Where the right of user in
any land has vested in the
(1) Where the right of user in State Government or, as the
any land has vested in the case may be, the Corporation
Central Government or in any under section 6 -
State Government or (i) shall be lawful for any
Corporation under section 6 - person authorised by the State
(i) it shall be lawful for any Government or, as the case
person authorised by the may be, the Corporation, and
Central Government or such its servants and workmen to
State Government or enter upon the land and lay
Corporation, as the case may pipelines or to do any other
be, and his servant and thing necessary for the laying
workmen to enter upon the land of pipelines.Provided that no
and lay pipelines or to do any pipeline shall be laid under-
other act necessary for laying of (a) any land which,
pipelines:Provided that no immediately before the date of
pipeline shall be laid under- the publication of notification
(a) any land which, immediately under sub-section (1) of section
before the date of the 3, was used for residential
notification under sub-section purposes; or
(1) of section 3, was used for (b) any land on which there
residential purposes; stands any permanent
(b) any land on which there structure which was in
stands any permanent structure existence immediately before
which was in existence the said date; or
immediately before the said (c) any land which is
date; appurtenant to a dwelling
(c) any land which is house; or
appurtenant to a (d) any land at a depth which
dwelling-house; or is less than one metre from the
(d) any land at a depth which is surface;and
less than one metre from the (ii) such land shall be used
surface; *** only for laying the pipelines
[(ia) for laying pipelines for the and for maintaining,
transport of petroleum, it shall examining, repairing, altering
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be lawful for any person or removing any such pipeline
authorised by the Central or for doing any other thing
Government or such State necessary for any of the
Government or corporation to aforesaid purpose or for the
use such land for laying utilisation of such pipelines.
pipelines for transporting any (2) If any dispute arises with
mineral and where the right of regard to any matter referred
user in any land has so vested to in paragraph (b) or (c) of the
for laying pipelines for proviso to clause (i) of sub-
transporting any mineral, it section (1), the dispute shall be
shall be lawful for such person referred to the competent
to use such land for laying authority whose decision
pipelines for transporting thereon shall be final.
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 Power to enter land for
inspection etc. inspection, etc.
For maintaining, examining, For maintaining, examining,
repairing, altering or removing repairing, altering or removing
any pipeline, or for doing any any pipeline, or for doing any
other act necessary for the other thing necessary for the
utilisation of the pipelines or for utilisation of the pipelines or
the making of any inspection or for the making of any
measurement for any of the inspection or measurement for
aforesaid purposes, any person any of the aforesaid purposes,
authorised in this behalf by the any person authorised in this
Central Government, the State behalf, by the State
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Government or the corporation, Government or, as the case
as the case may be, may, after may be, the Corporation may,
giving reasonable notice to the after giving reasonable notice
occupier of the land under to the occupier of the land
which pipeline has been laid, under which the pipeline has
enter therein with such been laid, enter therein with
workmen and assistants as may such workmen and assistants
be necessary: as may be necessary.
Provided that, where such Provided that, where such
person is satisfied that an person is satisfied that an
emergency exists, no such emergency exists, no such
notice shall be necessary: notice shall be necessary:
Provided further that, while Provided further that, while
exercising any powers under exercising any powers under
this section, such person or any this section, such person or any
workman or assistant of such workmen or assistants of such
person, shall cause as little person, shall cause as little
damage or injury as possible to damage or injury as possible to
such land. such land.
9. Restrictions regarding the Restrictions regarding the
use of land. use of land.
(1) The owner or occupier of (1) The owner or occupier of
the land with respect to which a the land with respect to which
declaration has been made a declaration has been made
under sub-section (1) of section under sub-section (1) of section
6, shall be entitled to use the 6, shall be entitled to use the
land for the purpose for which land for the purpose for which
such land was put to use such land was put to use
immediately before the date of immediately before the date of
the notification under sub- the notification under sub-
section (1) of section 3: section (1) of section 3:
Provided that, such owner or Provided that such owner or
occupier shall not after the occupier shall not after the
declaration under sub-section declaration under subsection
(1) of section 6 (1) of section 6
(i) construct any building or any (i) construct any building or
other structure; any other structure;
(ii) construct or excavate any (ii) construct or excavate any
tank, well, reservoir or dam; or tank, well, reservoir or dam; or
(iii) plant any tree,on the land. (iii) plant any tree on that land.
(2) The owner or occupier of the (2) The owner or occupier of
land under which any pipeline the land under which a pipeline
has been laid shall not do any has been laid shall not do any
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act or permit any act to be done thing or permit any thing to be
which will or is likely to cause done which will or is likely to
any damage in any manner cause any damage in any
whatsoever to the pipeline. manner whatsoever, to the
(3) Where the owner or occupier pipeline.
of the land with respect to (3) Where the owner or
which a declaration has been occupier of the land with
made under sub-section (1) of respect to which a declaration
section 6,- has been made under sub-
(a) constructs any building or section (1) of section 6 -
any other structure, or (a) constructs any building or
(b) constructs or excavates any any other structure, or
well, tank, reservoir or dam, or (b) constructs or excavates any
(c) plants any tree,on that land, well, tank, reservoir or dam; or
the court of the District Judge (c) plants any tree on that land,
within the local limits of whose the Collector within the local
jurisdiction such land is situate limits of whose jurisdiction
may, on an application made to such lands is situate may, on an
it by, the competent authority application made to it by the
and after holding such inquiry competent authority and after
as it may deem fit, cause the holding such inquiry, as it may
building, structure, reservoir, deem fit, cause the building,
dam or tree to be removed or structure, reservoir, dam or
the well or tank to be filled up, tree to be removed or the well
and the costs of such removal or or tank to be filled up, and the
filling up shall be recoverable costs of such removal or filling
from such owner or occupier in up shall be recoverable from
the same manner as if the order such owner or occupier.
for the recovery of such costs
were a decree made by the
court.
10. Compensation. Compensation.
(1) Where in the exercise of the (1) Where in the exercise of the
powers conferred by section 4, powers conferred by section 5,
section 7, or section 8 by any 7 or 8 by any person, any
person, any damage, loss or damage, loss or injury is
injury is sustained by any sustained by any person
person interested in the land interested in the land under
under which the pipeline is which the pipeline is proposed
proposed to be, or is being or to be, or is being, or has been
has been laid the Central laid, the State Government or,
Government, the State as the case may be, the
Government or the Corporations Corporation shall be liable to
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as the case may be, shall be pay compensation to such
liable to pay compensation to person for such damage, loss
such person for such damage, or injury, the amount of which
loss or injury, the amount of shall be determined by the
which shall be determined by competent authority in the first
the competent authority in the instance.
first instance. (2) If the amount of
(2) If the amount of compensation, determined by
compensation determined by the competent authority under
the competent authority under sub-section (1) is not
sub-section (1) is not acceptable acceptable to either of the
to either of the parties, the parties, the amount of
amount of compensation shall, compensation shall, on
on application by either of the application by either of the
parties to the District Judge parties to the Collector within
within the limits of whose the limits of whose jurisdiction
jurisdiction the land or any part the land or any part thereof is
thereof is situated, by situated, be determined by that
determined by that District Collector.
Judge. (3) The competent authority or,
(3) The competent authority, or as the case may be, the
the District Judge while Collector while determining the
determining the compensation compensation under sub-
under sub-section (1) or sub- section (1) or, as the case may
section (2), as the case may be, be, sub-section (2), shall have
shall have due regard to the due regard to the damage or
damage or loss sustained by any loss sustained by any person
person interested in the land by interested in the land by reason
reason of- of-
(i) the removal of tress or (i) the removal of trees or
standing crops, if any, on the standing crops, if any, on the
land while exercising the land while exercising the
powers under section 4, section powers under section 5, 7 or,
7 or section 8; as the case may be, section 8;
(ii) the temporary severance of (ii) the temporary severance of
the land under which the the land under which the
pipeline has been laid from pipeline has been laid from
other lands belonging to, or in other lands belonging to, or in
the occupation of, such person; the occupation of such person,
or or
(iii) any injury to any other (iii) any injury to any other
property, whether movable or property whether movable or
immovable or the earnings of immovable, or the earnings of
such persons caused in any such persons caused in any
other manner: other manner:
Provided that in determining the Provided that in determining
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compensation no account shall the compensation no account
be taken of any structure or shall be taken of any structure
other improvement made in the or other improvement made in
land after the date of the the land after the date of the
notification under sub-section publication of the notification
(1) of section 3. under sub-section (1) of section
(4) Where the right of user of 3.
any land has vested in the (4) Where the right of user of
Central Government, the State any land has vested in the
Government or the Corporation, State Government or, as the
as the case may be, shall, in case may be, the Corporation it
addition to the compensation; if shall, in addition to the
any, payable under sub-section compensation, if any, payable
(1), be liable to pay to the owner under sub-section (1), be liable
and to any other person whose to pay to the owner and to any
right of enjoyment in that land other person whose right of
has been affected in any manner enjoyment in that land has
whatsoever by reason of such been affected in any manner
vesting, compensation whatsoever by reason of such
calculated at ten per cent of the vesting, compensation
market-value of that land on the calculated at ten per cent of
date of the notification under the market value of that land
sub-section (1) of section 3. on the date of publication of
(5) The market-value of the land the notification under sub-
on the said date shall be section (1) of section 3.
determined by the competent (5) The market value of the
authority and if the value so land on the said date shall be
determined by that authority is determined by the competent
not acceptable to either of the authority and if the value so
parties, it shall, on application determined by that authority is
by either of the parties to not acceptable to either of the
District Judge referred to in sub- parties, it shall, on application
section (2), be determined by by either of the parties to the
that District Judge. Collector referred to in sub-
(6) The decision of the District section (2), be determined by
Judge under sub-section (2) or that Collector.
sub-section (5) shall be final. (6) The decision of the
Collector under sub-section (2)
or (5) shall be final.
11. Deposit and payment of Deposit and payment of
compensation. compensation.
(1) The amount of compensation (1) The amount of
determined under section 10 compensation determined
shall deposited by the Central under section 10 shall be
Government, the State deposited by the State
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Government or the Corporation, Government or, as the case
as the case may be, with the may be, the Corporation, with
competent authority within such the competent authority within
time and in such manner as may such time and in such manner
be prescribed. as may be prescribed.
(2) If the amount of (2) If the amount of
compensation is not deposited compensation is not deposited
within the time prescribed within the time prescribed
under sub-section (1), the under sub-section (1), the State
Central Government, the State Government or, as the case
Government or the Corporation, may be, the Corporation, shall
as the case may be, shall be be liable to pay interest
liable to pay interest thereon at thereon at the rate of nine per
the rate of six per cent per cent, if the amount of
annum from the date on which compensation is deposited
the compensation had to be within one year after the period
deposited till the date of actual prescribed under sub-section
deposit. (1) and the rate of fifteen per
(3) As soon as may be after the cent, if the amount of
compensation has been compensation is deposited
deposited under sub-section (1), after the expiry of the said one
the competent authority shall, year.
on behalf of the Central (3) As soon as may be after the
Government, the State compensation has been
Government or the Corporation, deposited under sub-section
as the case may be, pay the (1), the competent authority
compensation to the persons shall, on behalf of the State
entitled thereto. Government or, as the case
(4) Where several persons claim may be, the Corporation, pay
to be interested in the amount the compensation to the
of compensation deposited persons entitled thereto.
under sub-section (1), the (4) Where several persons
competent authority shall claim to be interested in the
determine the persons who in amount of compensation
its opinion are entitled to deposited under sub-section
receive the compensation and (1), the competent authority
the amount payable to each of shall determine the persons
them. who in its opinion are entitled
(5) If any dispute arises as to to receive the compensation
the appointment of the and the amount payable to
compensation or any part each of them.
thereof or as to the persons to (5) If any dispute arises as to
whom the same or any part the apportionment of the
thereof is payable, the compensation or any part
competent authority shall refer thereof or as to the persons to
the dispute to the decision of whom the same or any part
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the District Judge within the thereof is payable, the
limits of whose jurisdiction the competent authority shall refer
land or any part thereof is the dispute to the Collector
situated and the decision of the within the limits of whose
District Judge thereon shall be jurisdiction the land or any part
final. thereof is situated and the
decision of the Collector
thereon shall be final.
12. Competent authority to have Collector and competent
certain powers of civil court. authority to have certain
powers of civil court.
The competent authority shall
have, for the purposes of this The Collector and the
Act, all the powers of a civil competent authority shall have,
court while trying a suit under for the purpose of this Act, all
the Code of Civil Procedure, the powers of a Civil Court
1908, in respect of the following while trying a suit under the
matters, namely:- Code of Civil Procedure, 1908
(a) summoning and enforcing (5 of 1908), in respect of the
the attendance of any person following matters, namely:-
and examining him on oath; (a) summoning and enforcing
(b) requiring the discovery and the attendance of any person
production of any document; and examining him on oath;
(c) reception of evidence on (b) requiring the discovery and
affidavits; production of any document;
(d) requisitioning any public (c) reception of evidence on
record from any court or office; affidavits;
(e) issuing commission for (d) requisitioning any public
examination of witnesses. record from any court of
offence;
(e) issuing commission for
examination of witness.
13. Protection of action taken in Protection of action taken in
good faith. good faith.
(1) No suit, prosecution or other (1) No suit, prosecution or
legal proceeding shall lie other legal proceeding shall lie
against any person for anything against any person for anything
which is in good faith done or which is in good faith done or
intended to be done in intended to be done in
pursuance of this Act or any rule pursuance of this Act or any
or notification made or issued rules or notification made or
thereunder. issued thereunder.
(2) No suit or other legal (2) No suit or other legal
proceeding shall lie against the proceeding shall lie against the
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Central Government, the State Government, Corporation
competent authority or any or, as the case may be, the
State Government, or competent authority for any
Corporation for any damage, damage, loss or injury caused
loss or injury caused or likely to or likely to be caused by
be caused by anything which is anything which is in good faith
in good faith done or intended done or intended to be done in
to be done in pursuance of this pursuance of this Act or any
Act or any rule or notification rules or notification made or
made or issued thereunder. issued thereunder.
14. Bar of jurisdiction of civil Bar of jurisdiction of Civil
court. Court.
Save as otherwise expressly No civil court shall have
provided in this Act, no civil jurisdiction in respect of any
court shall have jurisdiction in matter which the Collector or,
respect of any matter which the as the case may be, the
competent authority is competent authority is
empowered by or under this Act empowered by or under this
to determine and no injunction Act to determine and no
shall be granted by any court or injunction shall be granted by
other authority in respect of any any Court or other authority in
action taken or proposed to be respect of any action taken or
taken in pursuance of any power proposed to be taken in
conferred by or under this Act. pursuance of any power
conferred by or under this Act.
15. Penalty. Penalty.
(1) Whoever willfully obstructs (1) Whoever wilfully obstructs
any person in doing any of the any person in doing any of the
acts authorised by section 4 or acts authorised under section
section 7 or section 8 or willfully 5, 7 or as the case may be,
fills up, destroys, damages or section 8 or wilfully fills up,
displaces any trench or mark destroys damages or displaces
made under section 4 or any trench or mark made under
willfully does any act prohibited section 5 or wilfully does
under section 9, shall be anything prohibited under the
punishable with imprisonment proviso to sub-section (1) of
for a term which may extend to section 9, shall be punishable
six months or with fine or with with imprisonment which may
both. extend to six months or fine or
(2) Whoever willfully makes or both.
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causes to make any (2) Whoever wilfully removes,
unauthorised connection with or displaces, damages or destroys
removes, destroys, damages or any pipeline laid under section
displaces any pipeline laid 7,shall be punishable with
under section 7, or willfully rigorous imprisonment for a
inserts any device to extract term which shall not be less
petroleum product or minerals than one year, but which may
from such pipeline, or willfully extend to three years and shall
disrupts supplies being made also be liable to fine.
through the pipeline, shall be
punishable with rigorous
imprisonment for a term which
may extend to ten years and
shall also be liable to fine.
(3) If any person convicted of an
offence under sub-section (2) is
again convicted of an offence
under the same provision, he
shall be punishable with
rigorous imprisonment for the
second and for every
subsequent offence for a term
which shall not be less than
three years but which may
extend to ten years: Provided
that the court may, for any
adequate and special reasons to
be mentioned in the judgment,
impose a sentence of
imprisonment for a term of less
than three years.
(4) Whoever, with the intent to
cause or knowing that he is
likely to cause damage to or
destruction of any pipeline laid
under section 7, causes by fire,
explosive substance or
otherwise damage to the
pipeline being used for
transportation of petroleum
products, crude oil or gas with
the intent to commit sabotage
or with the knowledge that such
act is so imminently dangerous
that it may in all probability
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cause death of any person or
such bodily injury likely to cause
death of any person, shall be
punishable with rigorous
imprisonment which shall not be
less than ten years but may
extend to imprisonment for life
or death.
16. Certain offence to be Certain offence to be
cognizable. cognizable.
Notwithstanding anything Notwithstanding anything
contained in the Code of contained in the Code of
Criminal Procedure, 1973 (2 of Criminal Procedure, 1973 (2 of
1974), an offence falling under 1974), an offence falling under
sub-sections (2), (5) and (4) of sub-section (2) of section 15
section 15 shall be deemed to shall be deemed to be
be cognizable and non-bailable cognizable within the meaning
within the meaning of that of the Code.
Code.
17. Power to make rules. Power to make rules.
(1) The Central Government (1) The State Government may,
may by notification in the by notification in the Official
Official Gazette, make rules for Gazette, make rules for
carrying out the provisions of carrying out the purpose of this
this Act. Act.
(2) In particular and without (2) In particular and without
prejudice to the generality of prejudice to the generality of
the foregoing power, such rules the foregoing power, such rules
may prove for all or any of the may provide for all or any of
following matters namely: the following matters, namely:
(a) the places at which and the (a) the places at which and the
manner in which the substance manner in which the substance
of the notification may be of the notification may be
published under sub-section (3) published under sub-section (3)
of section 3; of section 3;
(b) the time within which and (b) the time within which and
the manner in which the amount the manner in which the
of compensation may be amount of compensation shall
deposited under sub-section (1) be deposited under sub-section
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of section 11. (1) of section 11;
(3) Every rule made under this (3) All rules made under this
Act shall be laid as soon as may section shall be laid for not less
be after it is made before each than thirty days before the
House of Parliament while it is State Legislature as soon as
in session for a total period of possible after they are made
thirty days which may be and shall be subject to
comprised in one session or in rescission by the State
two or more successive Legislature or to such
sessions, and if before the modifications as the State
expiry of the session Legislature may make during
immediately following the the session in which they are
session or the successive so laid or the session
sessions aforesaid, both Houses immediately following.
agree in making any (4) Any rescission or
modification in the rule or both modification so made by the
Houses agree that the rule State Legislature shall be
should not be made, the rule published in the Official
shall thereafter have affect only Gazette, and shall thereupon
in such modified form or be of take effect.
no effect, as the case may be,
so, however, that any such
modification of annulment shall
be without prejudice to the
validity of anything previously
done under that rule.
18. Application of other laws not Application of other laws
barred. not barred.
The provisions of this Act shall The provisions of this Act shall
be in addition to, and not in be in addition to and not in
derogation of, any other law for derogation of any other law for
the time being in force relating the time being in force relating
to acquisition of land. to the acquisition of land.
30. The following seminal provisions of the Central Act of
1962 need to be taken note of for the purpose of the
discussion that will follow:-
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"Section 1: Short title, extent and application.
(1) This Act may be called the [Petroleum and Minerals
Pipelines] (Acquisition of Right of User in Land) Act, 1962.
Section 3: Publication of notification for acquisition.
(1) Whenever 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
locality pipelines may be laid by that Government or by any
State Government or a corporation and that for the purpose
of laying such pipelines it is necessary to acquire the right of
user in any land under which such pipelines may be laid, it
may, by notification in the Official Gazette, declare its
intention to acquire the right of user therein.
(2) Every notification under sub-section (1) shall give a
brief description of the land.
(3) The competent authority shall cause the substance
of the notification to be published at such places and in such
manner as may be prescribed.
Section 4: Power to enter, survey, etc.
On the issue of a notification under sub-section (1) of
section 3, it shall be lawful for any person authorised by the
Central Government or by the State Government or the
corporation which proposes to lay pipelines or any mineral,
and his servants and workmen.
(a) to enter upon and survey and take levels of any land
specified in the notification;
(b) to dig or bore into the sub-soil;
(c) to set out the intended line of work;
(d) to mark such levels, boundaries and line by placing
marks and cutting trenches;
(e) where otherwise survey cannot be completed and
levels taken and the boundaries and line marked, to cut
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down and clear away any part of any standing crop,
fence or jungle; and
(f) to do all other acts necessary to ascertain whether
pipelines can be laid under the land:
Provided that where exercising any power under
this section, such person or any servant or workmen of
such person shall cause as little damage or injury as
possible to such land.
Section 6: Declaration of acquisition of right to user.
(1) Where no objections under sub-section (1) of section
5 have been made to the competent authority within the
period specified therein or where the competent authority
has disallowed the objections under sub-section (2) of that
section, that authority shall, as soon as may be [either make a
report in respect of the land described in the notification
under sub-section (1) of section 3, or make different reports
in respect of different parcels of such land, to the Central
Government containing his recommendations on the
objections, together with the record of the proceedings held
by him, for the decision of that Government] and upon receipt
of such report the Central Government shall [, if satisfied that
such land is required for laying any pipeline for the transport
of petroleum or any mineral,] declare, by notification in the
Official Gazette, that the right of user in the land for laying
the pipelines should be acquired. [and different declarations
may be made from time to time in respect of different parcels
of the land described in the notification issued under sub-
section (1) of section 3, irrespective of whether one report or
different reports have been made by the competent authority
under this section].
(2) On the publication of the declaration under sub-
section (1), the right of user [in the land specified therein]
shall vest absolutely in the Central Government free from all
encumbrances.
(3) Where in respect of any land, a notification has been
issued under sub-section (1) of section 3 but [no declaration
in respect of any parcel of land covered by that notification
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has been published under this section] within a period of one
year from the date of that notification, that notification shall
cases to have effect on the expiration of that period.
[(3A) No declaration in respect of any land covered by a
notification issued under sub-section (1) of section 3,
published after the commencement of the Petroleum
Pipelines (Acquisition of Right of User in Land) Amendment
Act, 1977, shall be made after the expiry of three years from
the date of such publication.]
(4) Notwithstanding anything contained in sub-
section (2), the Central Government may, on such terms and
conditions as it may think fit to impose, direct by order in
writing, that the right of user in the land for laying the
pipelines shall, instead of vesting in the Central Government
vest, either on the date of publication of the declaration or,
on such other date as may be specified in the direction, in the
State Government or the corporation proposing to lay the
pipelines and thereupon the right of such user in the land
shall, subject to the terms and conditions so imposed, vest in
that State Government or corporation, as the case may be,
free from all encumbrances.
Section 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.
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Section 9: Restriction regarding the use of land.
(1) The owner or occupier of the land with respect to
which a declaration has been made under sub-section (1) of
section 6, shall be entitled to use the land for the purpose for
which such land was put to use immediately before the date
of the notification under sub-section (1) of section 3:
Provided that, such owner or occupier shall not after
the declaration under sub-section (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.
[(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.]
Section 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
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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.
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(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 sub-section (5) shall be final.
Section 11: Deposit and Payment of Compensation.
(1) The amount of compensation determined under
section 10 shall be deposited by the Central Government, the
State Government or the corporation, as the case may be,
with the competent authority within such time and in such
manner as may be prescribed.
(2) If the amount of compensation is not deposited
within the time prescribed under sub-section (1), the Central
Government, the State Government or the corporation, as the
case may be, shall be liable to pay interest thereon at the rate
of six per cent. per annum from the date on which the
compensation had to be deposited till the date of the actual
deposit.
(3) As soon as may be after the compensation has been
deposited under sub-section (1) the competent authority
shall, on behalf of the Central Government the State
Government or the corporation, as the case may be, pay the
compensation to the persons entitled thereto.
(4) Where several persons claim to be interested in the
amount of compensation deposited under sub-section (1), the
competent authority shall determined the persons who in its
opinion are entitled to receive the compensation and the
amount payable to each of them.
(5) If any dispute arises as to the apportionment of the
compensation or any part thereof or as to the persons to
whom the same or any part thereon is payable, the competent
authority shall refer the dispute to the decision of the District
Judge within the limits of whose jurisdiction the land or any
part thereof is situated and the decision of the District Judge
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thereon shall be final.
Section 18: Application of other laws not barred.
The provisions of this Act shall be in addition to and not
in derogation of any other law for the time being in force
relating to acquisition of land."
31. An examination of the aforesaid provisions makes it clear
that the Act is to empower the Central Government to acquire
such right of user in the land for laying of pipelines. Section 4
of the same empowers any person authorized by the Central
Government, State Government or Corporation which
proposes to lay pipelines, to enter upon the land, survey the
same, dig, mark boundaries, clear away the land, and to do all
other acts necessary to ascertain whether the pipelines can be
laid under the land.
32. Section 6 lays down the procedure by which the Central
Government may direct vesting of the user of the land either
in the Central Government or State Government or in the
Corporation. Section 8 empowers any person authorized by
the authority in which the right of user vests to enter the land
for inspection, maintenance, repairing, removal etc., of the
pipelines. Section 9 imposes restrictions on the owner or the
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occupier of the land in respect of the activities which may be
carried on the land. Section 18 categorically mandates that
the provisions of the Central Act of 1962 shall be in addition
to and not in derogation of any other law for the time being in
force "relating to acquisition of land".
33. In the context of Section 18 of the Central Act of 1962, it
is necessary to examine the decision of the Hon'ble Apex
Court in Karunanidhi (Supra). The following paragraphs
from the said judgment are required to be quoted to get the
context in which the aforesaid judgment came to be passed:-
"3. The appellant, M. Karunanidhi, was a former Chief
Minister of Tamil Nadu and was the petitioner before the
High Court in the applications filed by him before the High
Court. On 15-6-1976, a D.O. letter was written by the Chief
Secretary to the Government of Tamil Nadu to the Deputy
Inspector General of Police, CBI requesting him to make a
detailed investigation into certain allegations against the
appellant and others who were alleged to have abused their
official position in the matter of purchase of wheat from
Punjab. A first information report was accordingly recorded
on 16-6-1976 and four months later sanction under section
197 of the Code was granted by the Governor of Tamil Nadu
for the prosecution of the appellant under sections 161, 468
and 471 of the Indian Penal Code and section 5(2) read with
section 5 (1)(d) of the Prevention of Corruption Act
(hereinafter referred to as the Corruption Act). Thereafter,
the police submitted a charge sheet against the appellant for
the offences mentioned above and alleged that the appellant
had derived for himself pecuniary advantage to the extent of
Rs. 4 to Rs. 5 lakhs from Madanlal Gupta for passing
favourable orders in respect of some firms. The case was
registered before the Special Judge and the necessary copies
of the records were furnished to the appellant. The appellant
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on appearing before the Special Judge filed an application for
discharging him under section 239 of the Code on the ground
that the prosecution against him suffered from various legal
and constitutional infirmities. The Special Judge, however,
after hearing counsel for the parties rejected the application
of the appellant as a result of which the appellant filed two
applications in the High Court for quashing the proceedings
and for setting aside the order of the Special Judge refusing
to discharge the appellant. As indicated above, the High
Court rejected the applications of the appellant but granted a
certificate for leave to appeal to this Court and hence these
appeals before us.
4. As far back as 30th December, 1973 the Madras
Legislature had passed an Act known as The Tamil Nadu
Public Men (Criminal Misconduct) Act, 1973 hereinafter
referred to as the State Act. The State Act was passed after
obtaining the assent of the President of India. This State Act
was, however, amended by Act 16 of 1974 and the President's
assent was received on 10th April, 1974. According to the
provisions of the State Act the statute was brought into force
by virtue of a notification with effect from 8-5-1974.
According to the allegations made against the appellant, the
acts said to have been committed by him fell within the
period November 1974 to March, 1975. On 31-1-1976 by
virtue of the provisions of Article 356 President's rule was
imposed in the State of Tamil Nadu and the Ministry headed
by the appellant was dismissed and a Proclamation to his
effect was issued on the same date. The High Court decided
the petitions of the appellant on 10-5-1977 and granted a
certificate for leave to appeal to this Court on 27-7-1977.
Subsequently, however, the State Act was repealed and the
President's assent to the repealing of the State Act was given
on 6-9-1977. Thus, it is manifest that by the time the appeal
has reached this Court and was taken up for hearing the
State Act no longer exists. Consequently, some of the
constitutional points raised by the learned counsel for the
appellant before the Court do not survive for consideration
before us.
5. Faced with this situation, Mr. Venu Gopal, learned
counsel for the appellant has raised only two points before us.
In the first place, he submitted that even though the State Act
was repealed on 6-9-1977 during the time that it was in force,
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it was wholly repugnant to the provisions of the Code, the
Corruption Act and the Criminal Law Amendment Act and by
virtue of Article 254(2) of the Constitution of India the
provisions of the aforesaid Central Acts stood repealed and
could not revive after the State Act was repealed. The
constitutional position, it is submitted, was that even though
the State Act was repealed the provisions of the Central Acts
having themselves been repealed by the State Act when it
was passed could not be pressed into service for the purpose
of prosecuting the appellant unless those provisions were re-
enacted by the appropriate legislature. A number of grounds
were raised by counsel for the appellant in support of the first
plank of his argument that the State Act was repugnant to the
provisions of the Central Acts as a result of which the former
was rendered void.
7. We propose to deal with the two arguments separately.
We would first deal with the question of repugnancy as raised
by learned counsel for the appellant. It is true that the State
Act was passed by the Legislature of Tamil Nadu and the
assent of the President was obtained on 30th December,
1973. By virtue of the provisions of Article 254 (2) of the
Constitution since the assent of the President had been given
the State Act was to prevail over the Central Acts so far as
the State of Tamil Nadu was concerned, but the serious
question to be considered is as to whether or not there was a
real repugnancy resulting from an irreconcilable
inconsistency between the State Act and the Central Acts.
Article 254 of the Constitution runs thus:-
"254. Inconsistency between laws made by
Parliament and laws made by the Legislatures of
States:
(1) If any provision of a law made by the
Legislature of a State is repugnant to any provision of a
law made by Parliament which Parliament is competent
to enact, or to any provision of an existing law with
respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of
clause (2), the law made by Parliament, whether passed
before or after the law made by the Legislature of such
State, or, as the case may be, the existing law, shall
prevail and the law made by the Legislature of the State
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shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a
State with respect to one of the matters enumerated in
the Concurrent List contains any provision repugnant to
the provisions of an earlier law made by Parliament or
an existing law with respect to that matter, then, the
law so made by the Legislature of such State shall, if it
has been reserved for the consideration of the
President and has received his assent, prevail in that
State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with
respect to the same matter including a law adding to,
amending, varying or repealing the law so made by the
Legislature of State".
8. It would be seen that so far as clause (1) of Article
254 is concerned it clearly lays down that where there is a
direct collision between a provision of a law made by the
State and that made by Parliament with respect to one of the
matters enumerated in the Concurrent List, then, subject to
the provisions of clause (2), the State law would be void to
the extent of the repugnancy. This naturally means that
where both the State and Parliament occupy the field
contemplated by the Concurrent List then the Act passed by
Parliament being prior in point of time will prevail and
consequently the State Act will have to yield to the Central
Act. In fact, the scheme of the Constitution is a scientific and
equitable distribution of legislative powers between
Parliament and the State Legislatures. First, regarding the
matters contained in List I, i.e. the Union List to the Seventh
Schedule, Parliament alone is empowered to legislate and the
State Legislatures have no authority to make any law in
respect of the Entries contained in List I. Secondly, so far as
the Concurrent List is concerned, both Parliament and the
State Legislatures are entitled to legislate in regard to any of
the Entries appearing therein, but that is subject to the
condition laid down by Article 254(1) discussed above.
Thirdly, so far as the matters in List II, i.e., the State List are
concerned, the State Legislatures alone are competent to
legislate on them and only under certain conditions
Parliament can do so. It is, therefore, obvious that in such
matters repugnancy may result from the following
circumstances :-
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1. Where the provisions of a Central Act and a
State Act in the Concurrent List are fully inconsistent
and are absolutely irreconcilable, the Central Act will
prevail and the State Act will become void in view of
the repugnancy.
2. Where however a law passed by the State
comes into collision with a law passed by Parliament on
an Entry in the Concurrent List, the State Act shall
prevail to the extent of the repugnancy and the
provisions of the Central Act would become void
provided the State Act has been passed in accordance
with clause (2) of Article 254.
3. Where a law passed by the State Legislature
while being substantially within the scope of the entries
in the State List entrenches upon any of the Entries in
the Central List the constitutionality of the law may be
upheld by invoking the doctrine of pith and substance if
on an analysis of the provisions of the Act it appears
that by and large the law falls within the four corners of
the State List an entrenchment, if any, is purely
incidental or inconsequential.
4. Where, however, a law made by the State
Legislature on a subject covered by the Concurrent List
is inconsistent with and repugnant to a previous law
made by Parliament, then such a law can be protected
by obtaining the assent of the President under Article
254(2) of the Constitution. The result of obtaining the
assent of the President would be that so far as the State
Act is concerned, it will prevail in the State and
overrule the provisions of the Central Act in their
applicability to the State only. Such a state of affairs
will exist only until Parliament may at any time make a
law adding to, or amending, varying or repealing the
law made by the State Legislature under the proviso to
Article 254.
So far as the present State Act is concerned we are
called upon to consider the various shades of the
constitutional validity of the same under Article 254(2) of the
Constitution."
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33.1 In the aforesaid context, the Hon'ble Apex Court
eventually went on to hold in paragraph No. '36' as under:-
"36. In the light of the propositions enunciated above, there
can be no doubt that the State Act creates distinct and
separate offences with different ingredients and different
punishments, and it does not in any way collide with the
Central Acts. On the other hand, the State Act itself permits
the Central Act, namely, the Criminal Law (Amendment)
Act to come into its aid after an investigation is completed
and a report is submitted by the Commissioner or the
Additional Commissioner. It was contended however by Mr.
Venu Gopal that by virtue of the fact that the State Act has
obtained the assent of the President, it will be deemed to be a
dominant legislation, and, therefore, it would overrule the
Central Acts. Doubtless, the State Act is the dominant
legislation, but we are unable to agree with Mr. Venu Gopal
that there are any provisions in the State Act which are
irreconcilably or directly inconsistent with the Central Acts so
as to overrule them."
34. Thus, the test is to examine whether the impugned State
Act collides with the Central Act of 1962. In this context, it is
necessary to examine certain provisions of the impugned
State Act which are as under :-
"Section 1: Short title, extent and commencement.
(1) This Act may be called the Gujarat Water and Gas
Pipelines (Acquisition of Right of User in Land) Act, 2000.
Section 3: Publication of notification for acquisition.
(1)Whenever it appears to the State Government that it
is necessary in the public interest that for the transport of
water or, as the case may be, gas from one area to another
area, pipelines may be laid by the State Government, or, the
Corporation and that for the purpose of laying down such
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pipelines, it is necessary to acquire the right of user in any
land under which such pipelines may be laid. It may, by
notification in the Official Gazette, declare its intention to
acquire the right of use therein.
(2) Every notification under sub-section (1) shall give a
brief description of the land.
(3) The competent authority shall cause the substance
of the notification to be published at such places and in such
manner as may be prescribed.
Section 5: Power to enter, survey, etc.
On the issue of the notification under sub-section (1) of
section 3, it shall be lawful for any person authorised by the
State Government or, as the case may be, the Corporation
which proposes to lay pipelines for transporting water or, as
the case may be, gas, and its servants and workmen-
(a) to enter upon and survey and take levels of any land
specified in the notification;
(b) to dig or bore into the sub-soil;
(c) to set out the intended line of work;
(d) to mark such levels, boundaries and line by placing
marks and cutting trenches;
(e) where otherwise survey cannot be completed and
levels taken and the boundaries and lines marked, to
cut down and clear away any part of any standing crop,
fence or jungle; and
(f) to do all other acts necessary to ascertain whether
pipelines can be laid under the land:
Provided that while exercising any power under this
section, such person or any servant or workman of such
person shall cause a little damage or injury as possible to
such land.
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Section 6: Declaration of acquisition of right of user.
(1) Where no objection under subsection (1) of section 4
has been made to the competent authority within the period
specified therein or where the competent authority has
disallowed the objections under sub-section (2) of that
section, that authority shall, as soon as may be, submit a
report accordingly to the State Government and upon receipt
of such report, the State Government shall declare, by
notification in the Official Gazette, that the right of user of
land for laying the pipelines shall be acquired.
(2) On the publication of the declaration under sub-
section (1), the right of user in the land shall vest absolutely
in the State Government free from all encumbrances.
(3) Where in respect of any land, a notification has been
issued under sub-section (1) of section 3, but no declaration
under this section has been published within a period of one
year from the date of that notification, that notification shall
cease to have effect on the expiration of the said period.
(4) Notwithstanding anything contained in sub-section
(2), the State Government may, on such terms and conditions
as it may think fit, to impose, direct by order in writing that
the right of user in the land for laying the pipelines shall,
instead of vesting in the State Government, vest either on the
date of publication of the declaration or, on such other date
as may be specified in the order, in the Corporation
proposing to lay the pipelines and thereupon the right of such
user in the land shall, subject to the terms and conditions so
imposed, vest in that Corporation free from all
encumbrances.
Section 8: Power to enter land for inspection, etc.
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For maintaining, examining, repairing, altering or
removing any pipeline, or for doing any other thing 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 State
Government or, as the case may be, the Corporation may,
after giving reasonable notice to the occupier of the land
under which the pipeline 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 assistants
of such person, shall cause as little damage or injury as
possible to such land.
Section 9: Restrictions regarding the use of land.
(1) The owner or occupier of the land with respect to
which a declaration has been made under sub-section (1) of
section 6, shall be entitled to use the land for the purpose for
which such land was put to use immediately before the date
of the notification under sub-section (1) of section 3:Provided
that such owner or occupier shall not after the declaration
under subsection (1) of section 6-
(i) construct any building or any other structure;
(ii) construct or excavate any tank, well, reservoir or dam; or
(iii) plant any tree on that land.
(2) The owner or occupier of the land under which a
pipeline has been laid shall not do any thing or permit any
thing to be done which will or is likely to cause any damage
in any manner whatsoever, to the pipeline.
(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-
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(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 Collector within the
local limits of whose jurisdiction such lands 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.
Section 10: Compensation.
(1) Where in the exercise of the powers conferred by
section 5, 7 or 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 State Government or, as the case may be, the Corporation
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 Collector within the
limits of whose jurisdiction the land or any part thereof is
situated, be determined by that Collector.
(3) The competent authority or, as the case may be, the
Collector while determining the compensation under sub-
section (1) or, as the case may be, sub-section (2), shall have
due regard to the damage or loss sustained by any person
interested in the land by reason of-
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(i) the removal of trees or standing crops, if any, on the
land while exercising the powers under section 5, 7 or,
as the case may be, 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 publication of the
notification under sub-section (1) of section 3.
(4) Where the right of user of any land has vested in the
State Government or, as the case may be, the Corporation it
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 publication 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
Collector referred to in sub-section (2), be determined by that
Collector.
(6) The decision of the Collector under sub-section (2)
or (5) shall be final.
Section 11: Deposit and payment of compensation.
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(1) The amount of compensation determined under
section 10 shall be deposited by the State Government or, as
the case may be, the Corporation, with the competent
authority within such time and in such manner as may be
prescribed.
(2) If the amount of compensation is not deposited
within the time prescribed under sub-section (1), the State
Government or, as the case may be, the Corporation, shall be
liable to pay interest thereon at the rate of nine per cent, if
the amount of compensation is deposited within one year
after the period prescribed under sub-section (1) and the rate
of fifteen per cent, if the amount of compensation is deposited
after the expiry of the said one year.
(3) As soon as may be after the compensation has been
deposited under sub-section (1), the competent authority
shall, on behalf of the State Government or, as the case may
be, the Corporation, pay the compensation to the persons
entitled thereto.
(4) Where several persons claim to be interested in the
amount of compensation deposited under sub-section (1), the
competent authority shall determine the persons who in its
opinion are entitled to receive the compensation and the
amount payable to each of them.
(5) If any dispute arises as to the apportionment of the
compensation or any part thereof or as to the persons to
whom the same or any part thereof is payable, the competent
authority shall refer the dispute to the Collector within the
limits of whose jurisdiction the land or any part thereof is
situated and the decision of the Collector thereon shall be
final.
Section 18: Application of other laws not barred.
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The provisions of this Act shall be in addition to and not
in derogation of any other law for the time being in force
relating to the acquisition of land."
35. Thus, it will be seen that even the State enactment
contains provision similar to Section 18 of the Central Act of
1962 to the effect that the provisions of the State Act "shall be
in addition to and not in derogation of any other law for the
time being in force relating to the acquisition of land."
36. In Karunanidhi (Supra), the Hon'ble Apex Court has
held in a similar provision in the enactment in examination
before it that "in addition to and not in derogation of"
contained a mechanism to avoid a collision with another Act
ostensibly operating in the same field. In other words, it
records the clear intention of the State Legislature to allow
the Central Act of 1962 being "a law for the time being in
force" to independently operate and not be drawn into any
collision whatsoever. Further, the similar provision under
Section 18 of the Central Act of 1962 also leaves room for
further enactment regarding "land acquisition" and that
Section 18 of the Central Act of 1962 clearly evinces the
intention of the Parliament not to occupy the field.
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37. The phrase "in addition to and to in derogation of" is to
be found in several statutes. The Hon'ble Apex Court has
interpreted and authoritatively pronounced in several
decisions the scope and amplitude of the aforesaid phrase.
For example, in the context of Section 3 of the Consumer
Protection Act, 1986, which is pari materia with Section 100
of the Consumer Protection Act, 2019.
38. The Hon'ble Apex Court in the case of M.
Haridarasudhan v. R. Karmegam and Others, reported in
(2019) 10 SCC 94, has observed as under:-
"14. In this regard, it would be useful to refer
to Section 3 of the 1986 Act, similar to Section 14 of the Act,
which provides that the 1986 Act is in addition to and not in
derogation of other laws in force:
"3. Act not in derogation of any other law.--The
provisions of this Act shall be in addition to and not in
derogation of the provisions of any other law for the
time being in force."
14.1 This provision has been considered on a multitude of
occasions by this Court to affirm that the remedy available
before consumer fora may only be one of several concurrent
remedies available to an aggrieved person. For instance,
even recently, this Court in Pioneer Urban Land and
Infrastructure Ltd. v. Union of India (W.P. (C) No.
43/2019, decided on 09.08.2019) observed that remedies to
flat allottees under various statutes such as the 1986 Act, the
Real Estate (Regulation and Development) Act, 2016, and the
Insolvency and Bankruptcy Code, 2016 are concurrent.
However, for our purposes, we may limit ourselves to
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examine the effect of Section 3 of the 1986 Act on the
jurisdiction of the civil court. The following discussion
in State of Karnataka v. Vishwabharathi House Building
Coop. Society , (2003) 2 SCC 412, serves us adequately,
where this Court explained that the 1986 Act does not
supplant the jurisdiction of the civil court:
"46. By reason of the provisions of Section 3 of
the Act, it is evident that remedies provided thereunder
are not in derogation of those provided under other
laws. The said Act supplements and not supplants the
jurisdiction of the civil courts or other statutory
authorities.
xxx
53. ... Furthermore, primarily the jurisdiction of
the forums/Commissions is to grant damages. In the
event, a complainant feels that he will have a better
and effective remedy in a civil court as he may have to
seek for an order of injunction, he indisputably may file
a suit in an appropriate civil court or may take recourse
to some other remedies as provided for in other
statutes."
(emphasis added)
14.2 We may also refer to the following observations made
by this Court in its earlier decision in Indian Medical
Association v. V.P. Shantha, (1995) 6 SCC 651, where,
while concluding that consumer fora were competent to deal
with complaints regarding deficiency in service by way of
medical negligence, it was observed as follows:
"37. ... In complaints involving complicated issues
requiring recording of evidence of experts, the
complainant can be asked to approach the civil court
for appropriate relief. Section 3 of the Act which
prescribes that the provisions of the Act shall be in
addition to and not in derogation of the provisions of
any other law for the time being in force, preserves the
right of the consumer to approach the civil court for
necessary relief..."
(emphasis added)
14.3. There is no doubt in our minds that a similar
proposition holds the field even with respect to the Act at
hand. Section 14 of the Act, being in addition to and not in
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derogation of the provisions of other laws in force, permits an
aggrieved person to approach the civil court for relief if he so
desires, instead of availing of the remedy envisaged
under Section 10 of the Act. Clearly, a claim for
compensation under the Act is only in the nature of an
additional remedy which may be pursued in place of filing a
civil suit for the same relief."
39. In the recent decision of Deputy Commissioner and
Special Land Acquisition Officer v. S.V. Global Mill Limited,
reported in 2026 SCC OnLine SC 171, interpreting Section 103
of the RFCTLARR Act, 2013, the Hon'ble Apex Court has held
as under :-
"Section 103 of the 2013 Act.
"103. Provisions to be in addition to existing laws.
--The provisions of this Act shall be in addition to and
not in derogation of, any other law for the time being in
force."
37. Section 103 actually throws more light on the peculiar
structure of the legislation. There is no difficulty in holding
that the 2013 Act is a special Act. It may also be called a
complete code to an extent, especially when an award passed
by the Authority becomes a decree, and the jurisdiction of the
Civil Court is barred. However, Section 103 also facilitates
adequate borrowing from other enactments. In fact, the
completeness of the 2013 Act comes from such borrowing.
We have absolute clarity in our understanding of Section 103,
as it explicitly states that the provisions of the 2013 Act shall
be in addition to and not in derogation of any other law in
force. Thus, this provision is self-explanatory.
38. The language of the provision is both positive and
negative as it states that the provisions of the 2013 Act are in
addition to the existing laws, while further clarifying that it is
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not in derogation of the same. Once we understand Section
103 as it is, it defines the nature of the entire enactment. The
following decisions of this Court clarify the meaning of the
expression, "in addition to and not in derogation of":
KSL and Industries Ltd v Arihant Threads Ltd & Ors -
(2015) 1 SCC 166;
"36 [Ed. : Para 36 corrected vide Official
Corrigendum No. F.3/Ed.B.J./61/2014 dated 25-11-
2014.] . Sub-section (2) was added to Section 34 of the
RDDB Act w.e.f. 17-1-2000 by Act 1 of 2000. There is
no doubt that when an Act provides, as here, that
its provisions shall be in addition to and not in
derogation of another law or laws, it means that
the legislature intends that such an enactment
shall coexist along with the other Acts. It is clearly
not the intention of the legislature, in such a case,
to annul or detract from the provisions of other
laws. The term "in derogation of" means "in
abrogation or repeal of". The Black's Law
Dictionary sets forth the following meaning for
"derogation":
"derogation.--The partial repeal or
abrogation of a law by a later Act that limits its
scope or impairs its utility and force."
It is clear that sub-section (1) contains a non
obstante clause, which gives the overriding effect to the
RDDB Act. Sub-section (2) acts in the nature of an
exception to such an overriding effect. It states that this
overriding effect is in relation to certain laws and that
the RDDB Act shall be in addition to and not in
abrogation of, such laws. SICA is undoubtedly one such
law.
37. The effect of sub-section (2) must necessarily
be to preserve the powers of the authorities under SICA
and save the proceedings from being overridden by the
later Act i.e. the RDDB Act.
38. We, thus, find a harmonious scheme in
relation to the proceedings for reconstruction of the
company under SICA, which includes the
reconstruction of debts and even the sale or lease of
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the sick company's properties for the purpose, which
may or may not be a part of the security executed by
the sick company in favour of a bank or a financial
institution on the one hand, and the provisions of the
RDDB Act, which deal with recovery of debts due to
banks or financial institutions, if necessary by enforcing
the security charged with the bank or financial
institution, on the other.
xxx xxx xxx
49. The term "not in derogation" clearly
expresses the intention of Parliament not to detract
from or abrogate the provisions of SICA in any way.
This, in effect must mean that Parliament intended the
proceedings under SICA for reconstruction of a sick
company to go on and for that purpose further intended
that all the other proceedings against the company and
its properties should be stayed pending the process of
reconstruction. While the term "proceedings"
under Section 22 of SICA did not originally include the
RDDB Act, which was not there in existence. Section
22 covers proceedings under the RDDB Act."
(emphasis supplied)
40. In the context of Section 88 of the Real Estate
(Regulation and Development) Act, 2016 the Hon'ble Apex
Court in the case of Pioneer Urban Land and
Infrastructure Ltd. & Anr. v Union of India & Ors.,
reported in (2019) 8 SCC 416, has observed as under:-
"The Insolvency and Bankruptcy Code, 2016 vis-Ã -vis
the Real Estate (Regulation and Development) Act,
2016
24. Section 238 of the Code reads as follows:
"238. Provisions of this Code to override
other laws.- The provisions of this Code shall have
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effect, notwithstanding anything inconsistent therewith
contained in any other law for the time being in force or
any instrument having effect by virtue of any such law."
25. It is significant to note that there is no provision similar to
that of Section 88 of RERA in the Code, which is meant to be
a complete and exhaustive statement of the law insofar as its
subject-matter is concerned. Also, the non obstante clause of
RERA came into force on 1-5-2016, as opposed to the non
obstante clause of the Code which came into force on 1-12-
2016. Further, the amendment with which we are concerned
has come into force only on 6-6-2018. Given these
circumstances, it is a little difficult to accede to arguments
made on behalf of the learned Senior Counsel for the
petitioners, that RERA is a special enactment which deals
with real estate development projects and must, therefore, be
given precedence over the Code, which is only a general
enactment dealing with insolvency generally. From the
introduction of the Explanation to Section 5(8)(f) of the Code,
it is clear that Parliament was aware of RERA, and applied
some of its definition provisions so that they could apply when
the Code is to be interpreted. The fact that RERA is in
addition to and not in derogation of the provisions of any
other law for the time being in force, also makes it clear that
the remedies under RERA to allottees were intended to be
additional and not exclusive remedies. Also, it is important to
remember that as the authorities under RERA were to be set
up within one year from 1-5-2016, remedies before those
authorities would come into effect only on and from 1-5-2017
making it clear that the provisions of the Code, which came
into force on 1-12-2016, would apply in addition to RERA."
(emphasis supplied)
41. In the context of the various Acts for acquisition of land,
apart from the RFCTLARR Act, 2013, Parliament has enacted
the National Highways Act, 1956, Chapter IV A of the
Railways Act, 1989, etc., all of which provide for acquisition of
land, which in any case, could have been acquired under the
RFCTLARR Act, 2013. Chapter IV A was inserted in the
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Railways Act, 1989, by the Railways (Amendment) Act, 2008
(11 of 2008). The SOR for introducing Chapter IV A in the
Railways Act, 1989, is as under :-
"STATEMENT OF OBJECTS AND REASONS
Provision of critical basic infrastructure is essential in order
to have sustainable economic growth and development of our
country. Important projects relating to basic infrastructure
require acquisition of land. The only instrument available for
acquisition of land for public purpose is the Land Acquisition
Act, 1894. The existing provisions under the Land Acquisition
Act, 1894 are insufficient for completion of such projects on
expeditious basis in a time schedule manner due to excessive
time taken under the Land Acquisition Act, 1894.
2. There is a need to provide for land acquisition provisions in
the Railways Act, 1989 to empower the Central Government
in the Ministry of Railways for land acquisition on fast track
basis for the special railway projects on the lines of the land
acquisition provisions available in the National Highways Act,
1956.
3. It has been the experience that a large number of disputes
relating to compensation amount for land acquisition are
brought before the courts of law. Often, these cases are
pending for a long period of time in the courts and add to the
work-load of the courts. Therefore, an expeditious mechanism
of arbitration process is provided to resolve the dispute
relating to amount of compensation.
4. In order to safeguard the interests of person affected by
land acquisition for special railway projects, it is provided in
proposed section 20-O of the Bill that the provisions of the
Rehabilitation and Resettlement Policy, 2007 shall apply.
5. The amendments in the Railways Act, 1989 shall empower
the Central Government in the Ministry of Railways (Railway
Administration) for land acquisition for the public purpose by
striking a balance between creation of basic critical
infrastructure in the country and protecting the interest of
the persons whose land is acquired.
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6. As Parliament was not in session, and to give impetus to
the critical infrastructure projects, it was considered
necessary to take immediate action for making suitable
provisions in the Railways Act, 1989 by promulgation of the
Railways (Amendment) Ordinance, 2008 on the 31 st January,
2008.
7. The Railways (Amendment) Bill, 2008 seeks to replace the
Railways (Amendment) Ordinance, 2008 to achieve the above
objectives."
41.1 Likewise, the objects and reasons for introduction of the
Sections pertaining to acquisition and connected provisions
(Section 3 - Section 3J) under the National Highways Act,
1956, are as under :-
"1. In order to create an environment to promote private
investment in national highways, to speed up construction of
highways and to remove bottlenecks in their proper
management, it was considered necessary to amend the
National Highways Act, 1956 and the National Highways
Authority of India Act, 1988.
2. One of the impediments in the speedy implementation
of highways projects has been inordinate delay in the
acquisition of land. In order to expedite the process of land
acquisition, it is proposed that once the Central Government
declares that the land is required for public purposes for
development of a highway, that land will vest in the
Government and only the amount by way of compensation is
to be paid and any dispute relating to compensation will be
subject to adjudication through the process of arbitration.
3. It was also felt necessary to ensure continuity of the
status of bypasses built through private investment. To
achieve this, it is proposed to amend the National Highways
Act, 1956 so as to include the highway stretches situated
within any municipal area as a part of National Highway.
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Further, as the National Highways Act, 1956 permits
participation of the private sector in the development of the
National Highways, it became imperative to amend the
National Highways Authority of India Act, 1988 so as to
provide that the National Highway Authority of India may
seek the participation of the private sector in respect of the
highways vested in the Authority.
4. With a view to provide adequate capital and loans to
the National Highways Authority of India by the Central
Government, it is proposed to make amendment in the
National Highways Authority of India Act, 1988.
5. With a view to achieve the above objectives and also as
both Houses of Parliament were not in session and the
President was satisfied that circumstances existed which
rendered it necessary for him to take immediate action, the
National Highways Laws (Amendment) Ordinance, 1997 was
promulgated by the President on the 24th day of January,
1997.
6. The Bill seeks to replace the aforesaid Ordinance."
42. It will therefore be seen that in spite of the acquisition of
land for whatever purpose and for whichever Government or
Company being provided for under the Land Acquisition Act,
1894 (subsequently 'the Act, 2013'), Parliament still thought it
fit to provide for provisions for acquisition of lands by which
different ministries/departments/projects, solely ensure the
expeditious completion of projects. Therefore, the purpose for
the enactment of the aforesaid provisions is valid and not
superfluous and it cannot be said that there was no necessity
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for the enactment of the said provisions for the acquisition of
lands for the purpose of construction of National Highways or
Special Railway Projects.
43. We are in full agreement with the submissions of Mr.
Thakore, learned Senior Counsel appearing for the
respondent No.2 - GSPL that given the extensive gas and
water pipelines which are necessary to be laid within the
State of Gujarat, the dominant purpose for enactment of the
State Act of 2000 is to ensure that there are no procedural
delays and red-tape which may find its place in the course of
triggering the Central Act of 1962 for the emergent
necessities of the State.
44. Therefore, it will be seen following Karunanidhi
(Supra) and several other decisions of the Hon'ble Apex
Court, as discussed hereinabove, the phrase "in addition to
and in derogation of" contains an inevitable anti-collision
mechanism which is inbuilt in the Act which records the
intendment of Parliament /the State Legislature that the Act
does not seek to occupy the entire field and leaves room for
other Acts which were there for the time being in force. In the
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context of the Central Act of 1962, it clearly evinces the
intendment of Parliament to allow Parliament / the State
Legislature to operate in the same field. A similar provision in
the impugned State Act, 2000 (also, section 18) further
clarifies that the State Act does not intent to collide with the
Central Act, 1962. While interpreting a statute, full play has
been accorded to the intendment of Parliament. If by Section
18 of the Central Act, 1962, Parliament intended that the
Central Act will be "in addition to and not in derogation of
other laws for the time being in force", it clearly intended the
Central Act of 1962 not to occupy the field.
45. Likewise, by Section 18 of the State Act, 2000, the State
Legislature has clarified that the State Act, 2000 shall be "in
addition to and not in derogation of" other laws which would
include the Central Act of 1962. For us, to hold to the
contrary, would render both the aforesaid sections of the
Central Act of 1962 and the impugned State Act, 2000 to be
otiose.
46. Lastly, we have combed through the provisions of the
Central Act, 1962 and the impugned State Act, 2000 to check
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for inconsistencies. From the comparative chart of the
provisions of the aforesaid two Acts above, and a close
examination of the provisions thereof, it would be clear that
the same are pari materia. This would necessarily imply that
the provisions of the impugned State Act, 2000 are not
inconsistent with the provisions of the Central Act, 1962.
Once we arrive at this conclusion, it is inescapable that there
is no repugnancy within the meaning of Article 254 of the
Constitution of India.
Conclusions
(I) The power to enact all land acquisition laws can be
traced back to Entry 42 of List III (Concurrent List). In the
present case, thus, we hold that the impugned State Act, 2000
has been enacted under the aforesaid Entry. The contention
that the Act is ostensibly framed as legislation concerning the
right of user in land, but in reality, it pertains to regulation
and transportation of natural gas and liquefied natural gas, is
rejected not only because this exact contention has already
been rejected in the decision of this Court in Anil @
Bipinchandra (Supra) but no circumstances could be pointed
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out by the petitioners that the aforesaid decision is per
incuriam.
(II) Parliament has enacted multiple laws concerning land
acquisition and acquisition of right of users in land. From the
myriad legislations, the source of power to which can be
traced back solely to Entry 42 of List III, we are of the opinion
that Parliament has expressed no intention whatsoever to
occupy the field through any particular legislation. It further
implies that at any point there can be room for one more law
on the subject matter. Since the source of power is traced
back to List III, such law could well be a State law like the
instant State Act, 2000.
(III) Comparing the provisions of the Central Act, 1962 and
the State Act, 2000 (impugned herein), we find no
inconsistency in any provision between the two. Therefore,
there can be no repugnancy in the sense that the State Act or
any provision thereof can be held to be repugnant to the
Central Act, 1962 within the meaning of Article 254 of the
Constitution of India.
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(IV) Since the impugned State Act, 2000 is pari materia with
the Central Act, 1962, the provisions of which have been
examined and upheld by the Hon'ble Apex Court in the case of
Laljibhai Savaliya (Supra), the provisions of the State Act, in
no manner, infringe the fundamental rights of the petitioners
guaranteed under Article 14, 19(1)(g), 21 of the Constitution
of India.
In view of the above findings and our eventual
conclusion, the challenge in the present petitions fails.
Consequently, the present petitions are dismissed without any
order as to costs.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
BINA SHAH
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15368 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 5098 of 2010
==========================================================
CHAMPAKLAL NARANJI PATEL
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
SPECIAL CIVIL APPLICATION NO.15368 of 2010:-
MS TANMAYI POOJARI, ADVOCATE AND MS VANITA SINGH, ADVOCATE
FOR MR SAURABH M PATEL(5019) for the Petitioner(s) No. 1
MR KAMAL B. TRIVEDI ADVOCATE GENERAL WITH MR VINAY VISHEN,
ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1,5
MR MIHIR J. THAKORE, SENIOR ADVOCATE WITH MR ASPI M
KAPADIA(1865) for the Respondent(s) No. 2
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 3
SPECIAL CIVIL APPLICATION NO.5098 of 2010:-
MS RADHIKA BHATT WITH VEDANT SOMANI, ADVOCATE FOR MR P P
MAJMUDAR(5284) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR KAMAL B. TRIVEDI ADVOCATE GENERAL WITH MR VINAY VISHEN,
ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1,3
MR MIHIR J. THAKORE, SENIOR ADVOCATE WITH MR ASPI M
KAPADIA(1865) for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS.
JUSTICE SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 28/01/2026
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
Heard Ms. Tanmayi Poojari, learned advocate assisted
SPONSORED
by Mr. Saurabh Patel, learned advocate appearing for the
petitioner in Special Civil Application No.15368 of 2010; Ms.
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Radhika Bhatt, learned advocate for Mr. S.P. Majmudar,
learned advocate appearing for the petitioner in Special Civil
Application No.5098 of 2010; Mr. Kamal B. Trivedi, learned
Advocate General assisted by Mr. Vinay Vishen, learned
Assistant Government Pleader appearing for the respondent
nos.1 and 5, Mr. Mihir J. Thakore, learned Senior Counsel
assisted by Mr. Aspi M. Kapadia, learned advocate appearing
for the respondent no.2.
Judgment reserved.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
A. B. VAGHELA
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