Skip to content


Lodna Colliery Co. (1920) Ltd. Vs. N.B. Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn Case No. 95 (W) of 1965
Judge
Reported inAIR1968Cal545,72CWN679
ActsConstitution of India - Articles 31(2) and 226; ;Petroleum Pipelines (Acquisition of Right of User in Land) Act, 1962 - Sections 9, 9(1), 9(2), 10, 10(1), 10(3), 10(6), 13 and 14
AppellantLodna Colliery Co. (1920) Ltd.
RespondentN.B. Roy and ors.
Appellant AdvocateR. Chowdhury, ;Somendra Chandra Bose and ;Bhagabati Prasad Banerjee, Advs.
Respondent AdvocateSankar Das Banerjee, ;Subrata Kumar Rai Chowdhury, ;Sudhir Kumar Mondal and ;P.N. Chunder, Advs.
Excerpt:
- .....as scheduled in annexure 'a' to the petition. the petitioner did present two applications to the competent authority prescribed under the said act - one of those was a petition under section 10 of the act for awardine compensation to the injury damaee or loss sustained by the petitioner in his surface as well as sub-soil rights as may exist in the disputed plots. by his order of the 29th january 1965 the competent authority rejected the claim for compensation by a speaking order which states as follows:'heard the counsel for lodna colliery co. ltd. he stated his case in support of his claim for compensation for laying the petro leum pipeline, and thereby for their loss in underground right and for future blocking of clevelopment and expansion of coal miningp. p. act 50 of 1962 however.....
Judgment:
ORDER

D. Basu, J.

1. This Rule is directed against a Notification No S. O. 2043 dated the 1st August, 1963 under Section 3(1) and Notification No S. O. 1470 dated the 18th April, 1964 under Section 6(3) of the Petroleum Pipelines (Acquisition of Right of User in Land) Act, 1962 The petitioner challenges the constitutionality of this Act on the ground that it contravenes Articles 14 and 31 of the Constitution in so far as it does not provide for compensation for the loss or injury to the sub-soil rights in the land over which the pipeline of the respondent No. 4 - the Indian Refineries Ltd. (since called as Indian Oil Corporation Ltd.) is being run.

2. Though there was some controversy at an earlier stage of the hearing as to whether and to what extent, the petitioner own interests in the surface as well as in the sub-soil of the disputed lands over which the pipelim is being run eventually, after the production of documents on either side, it has been acknowledged that the petitioner coal mine, known as the Sripur Colliery and the like lie in the sub-soil of various plots as scheduled in Annexure 'A' to the petition. The petitioner did present two applications to the competent authority prescribed under the said Act - one of those was a petition under Section 10 of the Act for awardine compensation to the injury damaee or loss sustained by the petitioner in his surface as well as sub-soil rights as may exist in the disputed plots. By his order of the 29th January 1965 the competent authority rejected the claim for compensation by a speaking order which states as follows:

'Heard the Counsel for Lodna Colliery Co. Ltd. He stated his case in support of his claim for compensation for laying the Petro leum Pipeline, and thereby for their loss in underground right and for future blocking of clevelopment and expansion of coal mining

P. P. Act 50 of 1962 however does not contemplate payment of compensation for such future, uncertain and apprehended claims. By this Right of User Act (50 of 1962) no restriction has been made in the underground coal mining operation. It is concerned with compensation for the temporary loss suffered in the surface rights only. In the circumstances the claim filed by Lodna Colliery cannot be entertained.'

3. It is clear that the competent authority rejected the claim on the assumption that the Act contemplated payment of compensation only for damage to the surface and not for any loss caused to underground rights, whether relating to coal mining or otherwise. Without much elaboration, it can rightly be said that if this was the proper construction of the statute and sub-soil rights were likely to be affected, in fact, the statute would contravene Article 31(2) of the Constitution There is no doubt that there being no definition of the word 'land' in this statute of 1962, the definition of that term in the General Clauses Act would apply so as to include both surface and subsoil rights in the land which was sought to be affected by the statute in question. Though the object of the earliest law of Land ' Acquisition since 1863 has been to provide compensation for all material interests in a land recognised by law including subsoil rights, - experiencing in some difficulties - the Legislature passed a specific statute in respect of mining rights in the year 1885 by enacting the Land Acquisition (Mines) Act to remove any doubts that where mines 01 minerals were situate under the land which are desired to be acquired under the Land Acquisition Act, the owner or occupier of such rights would be entitled to compensation

4. Comine now to the statute of 1962 with which we are concerned, it would appear prima facie that Parliament was assuming that what was sought to be acquired under the land was not the full title in the land over which the pipeline would be laid but only a right of user over the surface But if all the provisions of the statute are read together, it would be evident that the pipeline itself is to be embedded in the soil and not on the surface and either express or implied restrictions upon the rights of the owner of the mine in the sub-soil are sure to be imposed by the operation of the statute, for instance, the proviso (i) to Section 9 would prevent the mine-owner, in case he is also the owner of the surface, to construct any building or am other structures on the surface; and previso (ii) would prevent him from excavating any reservoir below the surface which might affect mining operations being carried not only direct below the pipeline but also on adiacent soil inasmuch as sub-section (2) of Section 9 is very widely worded as follows:

'The owner or occupier of the land under which any pipeline has been laid shall not do any act or permit anv act to be done which will or is likely to cause any damage in any manner whatsoever to the pipeline.'

5. The words 'likely to cause any damage in any manner whatsoever' are couched in a language of the widest amplitude so that even if the slightest possible subsidence, whatever be its extent, were caused to the pipeline, the owner or occupier of the mine might be liable under Section 9(2) which read with Section 15(2) of the Act, leads to rigorous imprisonment. Apart from that, in fact, the opinions expressed by experts on either side, in spite of the conflict as between themselves, lead to the result that there is some likelihood of damage being caused to the owner of the sub-soil, by the laying of the pipe itself, - the measurement of which is not within the province of this Court in this proceeding. This is a matter for the competent authority himself to determine on evidence in proper proceedings brought before him.

6. The only question, therefore, left to this Court is a construction of Section 10 which provides for compensation under this Act Before taking up that matter, I should observe that the striking down of any statute on the ground of unconstitutionality is a step which the court should take as a last resort if it is possible, by applying the normal rules of construction to interpret the statute in such a way as to be consistent with the requirements of the Constitution because the Legislature can never be presumed to act in contravention of the Constitution. The material provision is in subsection (I) of Section 10 which says:

'Where in the exercise of the powers conferred by Section 4, Section 7 or Section 8 by any person any damage, loss or injury is sustained by any person interested in the land under which the pipeline is proposed to be, or is being, or has been laid, the Central Government .................. 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.'

As 1 could understand from the arguments from either side, the competent authority relied upon the word 'under' in the above provision to arrive at the conclusion that the sub-section provided for compensation for damage caused only to whatever existed above the pipeline which was laid and not to anything situated in the sub-soil below the bed of the pipeline. I cannot accept such an interpretation inasmuch as the preposition 'under' is really a part of the prepositional phrase 'under which the pipeline is proposed to be or has been laid' which governs the word 'land'. This prepesitional phrase is used to describe the land in relation to which compensation is payable. The word 'under' comes in only because the pipeline is not laid on the surface but it is laid under the surface on the land. Therefore, the word 'under' as such does not lead to the conclusion that the statute does not contemplate payment of compensation for any sub-soil rights. Whether compensation can be claimed by the owner of a sub-soil interest, is evident from the provisions of subsection (3) of Section 10 Itself. It first says that compensation can be claimed in respect of 'damage or loss sustained by any person interested in the land;' any person interested in the land, certainly includes a personal interest in the sub-soil if the word 'land' is interpreted with the aid of the General Clauses Act Apart from that sub-dause (iii) to sub-section (3) speaks of 'any injury to any other property, whether movable 01 immovable, or the earnings of such persons caused in any other manner'' which again, is very widely worded, would certainly include the loss of earnings of a mine-owner if he is prevented from mining the coal not only from the direct sub-soil below the pipeline but also from some adjacent area, in order to prevent subsidence being reused to the pipeline Some compensation may also be payable because of the restrictions to be pu! to the mine-owner under sub-sections fit and (2) of Section 9 which I have already referred to. f do not want to dilate further on this point inasmuch as these are the questions to be determined by the competent authority himself, once he is directed to award compensation on the footing that Section 10 admits of compensation being paid to a cub-soil owner for his loss direct or indirect so far as he is admitted by the law of the land The responsibility of the competent authority is enhanced by the fact that Sections 13 and 14 apparently bar the jurisdiction of the courts of this land in respect of mattets which the competent authority is empowered by 01 under the Act to determine and the decision of the competent authority if affirmed by the District Judge as an appellate authority, is made final by the statute under Section 10(6) of the Act

7. [n view of my conclusion that the Act admits of compensation being navable to sub-soil owners like the petitioner company it is quite evident that the order of the competent authority of the 29th January. 1965 which is a 'speaking order' constitutes a refusal to exercise jurisdiction because the only jurisdiction of the competent authority is to determine the quantum of compensation and if he proceeds on the assumption that he has no jurisdiction to assess the quantum the matter goes to the root and Mandamus lies to direct him to exercisc his jurisdiction under Section 10.

8. In this view, the Rule will be made absolute but on a different ground than what was urged by the petitioner and. therefore, in a modified form

9. The constitutionality of the statute is upheld but an order in the nature of Mandamus will be issued directing the respondent No 1 the competent authority appointed under Section 2 of the Petroleum Pipelines (Acquisition of Right of User in Land) Act, 1962 not to give effect to his order dated the 29th January, 1965 rejecting the claim filed by the petitioner and to dispose of the said claim in accordance with law, and in the light of the observations made herein.

10. In view of the extreme urgency of the Project in question from the standpoint of national interests, it is essential that the proceedings before the competent authority must be completed within the earliest possible time, the petitioner company may be directed to appear before the competent authority at the hearing provided for under the statute on any date within the first week of November, 1967 and the competent authority should make his best efforts to complete his proceedings within four months from that date of hearing, Both parties will be well-advised to afford as much co-operation as may be expected from them in the matter.

11. Subject to these observations, the Rule TS made absolute in a modified form without any order as to costs and the interim order directing the respondents to maintain status quo by order of this Court dated the 19th July 3967 and 5th August. 1967 stands vacated

(Mentioned)

(13-12-67) On hearing the learned Advocates on either side, the time which is specified in the penultimate paragraph of the judgment is changed from the first week of November, 1967 to the first week of February 1968 and the judgment be amended accordingly as agreed to by the parties.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //