LPA No. 1457 of 2009 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 24.12.2009 (i) LPA No. 1457 of 2009 Shivam Infratech Pvt. Ltd. and others .......Appellants Versus Union of India and others .......Respondents (ii) LPA No. 1458 of 2009 Vatika Limited and others .......Appellants Versus Union of India and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE JORA SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Ashok Aggarwal, Senior Advocate, with Shri Adarsh Jain, Advocate, for the appellants. Dr. Amol Rattan Sidhu, Assistant Solicitor General of India with Shri O.S. Batalvi, Standing Counsel, for the caveator- respondents. HEMANT GUPTA, J. (Oral). This order shall dispose of Letters Patent Appeal nos. 1457 and 1458 of 2009, wherein the order passed by the learned Single Judge of this Court on 21.12.2009, is under challenge. The appellants are the real estate developers and have been granted licences either under the Haryana Development and Regulation of Urban Areas Act, 1975 or letter of intent to develop the land measuring over LPA No. 1457 of 2009 [ 2] 200 acres. Respondent No.1 published a notification under Section 3 of the Petroleum & Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 [ for short `the Central Act'] intending to acquire the right to user of the land, including part of the land in respect of which the appellants have been given licences or the letter of intent to develop the residential and commercial colonies. After considering the objections filed, the notification under Section 6 of the Central Act was published on 5.2.2009. The Gas Authority of India Limited (for short `GAIL'] has undertaken the project to lay the pipelines on 71 kilometres of land. The dispute in the present appeals is in respect of an area falling within the controlled area declared under the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (for short `the State Act') vide notification dated 5.2.2007. It is the case of the appellants that during the course of laying of the gas pipelines, a meeting was held with the Officers of the GAIL, the representatives of the appellants as well as the representatives of the Haryana Urban Development Authority and the Director, Town and Country Planning on 28.5.2009. In the aforesaid meeting, it was agreed to re-route the pipelines after obtaining approval from Director, Town and Country Planning Haryana Urban Development Authority. Since GAIL did not implement the re-routing agreed in the meeting held on 28.5.2009, the appellants invoked the writ jurisdiction of this Court to claim a writ of mandamus directing the respondents to re-route the gas pipelines in accordance with the agreement recorded in the minutes held on 28.5.2009 and also for quashing of the laying of pipelines in the manner originally LPA No. 1457 of 2009 [ 3] undertaken by the GAIL as the same was said to be illegal. The learned Single Judge has dismissed the writ petition by passing a detailed speaking order. We need not go into the detailed reasons given by the learned Single Judge as Shri Ashok Aggarwal, the learned Senior Counsel appearing for the appellants, has raised two fold arguments before this Court. It is argued that the development plans having notified by the State Government on 5.2.2007 under the State Act, making provisions for public utility services like transmission lines, communication lines, waster supply lines, sewerage lines and green belt along with the scheduled roads and major roads as part of the open space, therefore, the gas pipelines can be laid only in the open spaces notified in such development plans and not in any other area. It is contended that laying of gas pipelines in other area by acquiring right to user under the Central Act contravenes the provisions of the State Act, which has received the assent of the President. It is contended that the subject of land and all rights in the land fall within the exclusive domain of the State Legislature in terms of Entry 18 of List-II of Seventh Schedule of the Constitution of India. Therefore, the Central Act will give way to the State Act. It is not disputed by the learned counsel for the appellants that as on today, the entire area in respect of which the appellants have been granted licences or letters of intent, are the vacant lands and on which construction activities have not been undertaken so far. It is also not disputed that no notification for acquisition of right of use under Section 3 of the Central Act has been published in respect of the land required for re- routing of the gas pipelines agreed in the minutes on 28.5.2009 (Annexure LPA No. 1457 of 2009 [ 4] P.1). With this background, we proceed to examine the arguments raised by the learned counsel for the appellants. By publication of notification under Section 6 of the Central Act, the Central Government or the State Government or the entities authorised by the Central or the State Governments, are competent to lay pipelines on payment of compensation for acquisition of right to user and also to the damages to the property. There is no challenge in the writ petition or in the appeal to the notifications issued under the Central Act intending to use the land owned by the present appellants in respect of which they have been given licence or letters of intent. After the declaration of the area as controlled area, the development plans have been published on 5.2.2007 under Section 5 of the State Act. The consequences of publication of the development plans are delineated in Sections 6 and 7 of the State Act. Section 6 of State Act deals with the positive action i.e. erection and re-erection of the building subject to the conditions specified therein, whereas Section 7 prohibits the use of the land in the controlled area. For the purposes of the present appeals, Sections 6 and 7 of the State Act, are relevant, which read as under:- “6. Erection or re-erection of buildings etc. in controlled areas.- Except as provided hereinafter, no person shall erect or re-erect any building or make or extend any excavation or lay out any means or access to a road in a controlled area save in accordance with the plans and the restrictions and conditions referred to in section 5 and with the previous permission of the Director: Provided that no such permission shall be necessary for erection or re-erection of any building if such building is used or is to be used for agricultural LPA No. 1457 of 2009 [ 5] purpose or purposes subservient to agriculture: Provided further that nothing in this section shall apply to a building constructed along the extension of the scheduled road located in the limit of the local authority and which was in existence immediately before the commencement of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development (Haryana Amendment) Ordinance, 2009, on payment of such fee as may be prescribed. 7. Prohibition on use of land in controlled area. - (1) No land within the controlled area shall, except with the permission of the Director and on payment of such conversion charges as may be prescribed by the Government from time to time be used for purposes other than those for which it was used on the date of publication of the notification under sub-section (1) of Section 4 and no land within such controlled area shall be used for the purposes of a charcoal-kiln, pottery kiln, lime-kiln, brick-kiln or bricks field or for quarrying stone, bajri, surkhi, kankar or for other similar extractive or ancillary operation except under and in accordance with the conditions of a licence from the Director on payment of such fees and under such conditions as may be prescribed: Provided that any fee or charges leviable, if not paid within the specified period, shall be recoverable as arrears of land revenue. (1A) Local authorities, firms and undertaking of Government, colonisers and persons exempted from obtaining a licence under the Haryana Development and Regulation of Urban Areas Act, 1975, and authorities involved in land development will also be liable to pay conversion charges but they shall be exempt from making an application under Section 8 of this Act. (2) The renewal of such licences may be made after LPA No. 1457 of 2009 [ 6] three years on payment of such fees as may be prescribed.” The argument of the learned counsel for the appellants is that the term `no person' in Section 6 of the State Act includes the Central Government as well as the GAIL, in view of the definition of the person contained in the General Clauses Act, 1897 and therefore, the action in carrying out excavation, in respect of the area for which the development plan has been published, is not permissible. Thus, it is contended that action of the Central Government and that of the GAIL contravenes the provisions of Section 6 of the State Act. Since the State Act has received the assent of the President, therefore, the State Act will prevail over the Central statute. Relying upon Section 7 of the State Act, it is contended that the land can be permitted to be used for laying the gas pipelines after deposit of the conversion charges, as it is a case of change of land use. Such change was sought by the GAIL in the minutes recorded on 28.5.2009. Therefore, the action of the laying pipelines over an area in respect of which development plans have been published is not permissible. Reference is made to the judgment of the Hon'ble Supreme Court reported as Central Coalfields Ltd. v. State of M.P. and others, (1995) 2 Supreme Court Cases 11. We do not find any merit in the arguments raised by the counsel for the appellants. Laying of the pipelines is not an excavation, which is prohibited under Section 6 of the State Act. Laying of pipelines is temporary digging of land and after resting of the pipelines, the surface of the earth, can be used by the owner of the land. For the period, the owner is not able to use the surface of the land, he is compensated in terms of the Central Act. The landowner is compensated for acquiring the right to use the land as well contemplating restrictions on use of surface of such land. LPA No. 1457 of 2009 [ 7] Under Section 9 of the Central Act, the owner is not permitted to construct any building or any other structure; construct or excavate any trunk, well, or reservoir or dam or plant any tree on such land. Once, after laying of the pipelines, the land is restored to its original position, then the same can be put to use subject to restrictions provided under Section 9 of the Central Act. In terms of provisions of the Central Act, the land has to be kept vacant but can be used for agricultural operations or for developing it as a green area. Therefore, the restricted user of land free from construction, but as a green area or for agricultural operations does not violate any of the provisions of State Act. We find that the restriction under Section 6 of the State Act is in respect of the erection and re-erection of the building or excavation of the land but not in respect of keeping the land free from any construction. The argument that in view of the development plans dated 5.2.2007, the open spaces have been specified for the public utility services such as transmission lines etc., therefore, by necessary implication, the location of pipelines over any other area is excluded. We do not find any merit in the said argument as well. The development plans demarcated open spaces and such open spaces are to be used for the public utility services including transmission lines etc. However, such development plans do not prescribe that transmission lines or the gas pipelines, as in the present case, cannot be allowed over any other area. The development plans are subservient to the provisions of the Act and cannot override the provisions contemplated under Section 6 of the State Act. Therefore, the laying of the gas pipelines over an area in respect of which development plans have been published LPA No. 1457 of 2009 [ 8] does not contravene any of the provisions of State Act. Both the Statutes operate in different fields. There is no contradiction or overlapping of these Statutes over each other. There is no conflict between the two. The argument that GAIL has agreed to re-route the gas pipelines on 28.5.2009 and therefore, such agreement is in furtherance of the statutory duty under the State Act and thus, the appellants are entitled to invoke the writ jurisdiction of this Court, is again without any merit. It is so contended on the basis of presence of Competent Authority in the meeting held on 28.5.2009. The primary role of the Competent Authority under the Central Act is of hearing of the objections to the notification under Section 3 of the Act and deciding the same. Such objections have attained finality in terms of Section 5 of the Central Act. Still further Haryana Urban Development Authority or the Director, Town and Country Planning has not given any no objection certificate as contemplated in the minutes Annexure P.1. May be it was GAIL, who has not taken any action after the communication Annexure P.11 was addressed by the District Town and Country Planner on 5.8.2009, but the fact remains that the procedure agreed on 28.5.2009 was not taken to its logical end. Still further, the new route agreed in the aforesaid meeting could not be actually given effect to in the absence of any acquisition of right to user in terms of the provisions of Central Act by publication of notifications under Sections 3 and 6 of the Central Act. Therefore, reliance of the appellants on the minutes held on 28.5.2009 is misconceived. Still further, the appellants have not challenged the acquisition of right to user. In the absence of any challenge to the right to user by way of notification under the Central Act, the present appeals claiming re- LPA No. 1457 of 2009 [ 9] routing of the Gas Pipelines are without any merit and consequently, the same are dismissed without any order as to costs. [ HEMANT GUPTA ] JUDGE [ JORA SINGH ] JUDGE 24.12.2009 ds