WITH elections to the State Assembly less than three months away, a Supreme Court order has left the Tamil Nadu government wringing its hands in despair. On February 2, a bench comprising Chief Justice of India T.S. Thakur and Justices A.K. Sikri and R. Banumathi upheld a Madras High Court order of November 25, 2013, allowing the public sector undertaking Gas Authority of India Limited (GAIL) to go ahead with its plan to lay a gas pipeline through Coimbatore, Dharmapuri, Erode, Krishnagiri, Namakkal, Salem and Tirupur districts in western Tamil Nadu as part of its Kochi-Koottanad-Mangaluru-Bengaluru Pipeline (KKMBPL) project to transport natural gas.
In its written order, the Supreme Court quashed a communication dated April 2, 2013, from the All India Anna Dravida Munnetra Kazhagam (AIADMK) government to GAIL, directing it to lay the gas pipeline along the national highways without affecting the agricultural lands. “There is, in our opinion, no manner of doubt that the State government has no jurisdiction under the provisions of the Right to User Act or the Petroleum and Natural Gas Regulatory Board Act, 2006, to issue any direction to GAIL to alter the alignment of the gas pipeline”, nor has counsel for Tamil Nadu “been in a position to indicate the source of power which the State government could invoke for issuing such a direction”, the order said.
Besides, the court orally observed: “We are not against farmers. But you cannot prevent the gas pipeline project which is in [the] national interest.” It told senior advocate Subramonium Prasad, representing Tamil Nadu: “You supported the farmers’ agitation against the project because votes are involved. You have gone by the sentiments of the farmers.” The court termed the State government’s objections as “populist”.
The KKMBPL project entails laying an 871-kilometre natural gas pipeline from Kochi in Kerala to Bengaluru in Karnataka via the seven districts of western Tamil Nadu (501 km in Kerala, 310 km in Tamil Nadu and about 60 km in Karnataka). Pipes having a diameter of 24 inches will be buried five feet deep in the earth. The pipeline will not be fenced on the sides. GAIL will keep 24x7 surveillance on the pipeline by means of Supervisory Control and Data Acquisition (SCADA).
The laying of the pipeline through agricultural lands will affect the livelihood of 5,842 farmers in 136 villages. Resentment has been building up among them over the past four years as, according to GAIL, for 10 metres on either side of the pipeline they cannot grow deep-rooted trees or dig wells. All they can cultivate are crops such as paddy and maize or vegetables and flowers. Farmers alleged that GAIL officials had dismantled many borewells, filled up open wells and cut down hundreds of mango and coconut trees in the demarcated area.
P. Shanmugam, general secretary of the Tamil Nadu Vivasayigal Sangam, the State unit of the All India Kisan Sabha, which is affiliated to the Communist Party of India (Marxist), echoed the fears of the farmers about land value going down sharply because of all this. “Nobody will come forward to buy this kind of land,” he said, adding that it was impossible to cultivate paddy, as suggested by GAIL, where there was no river in the vicinity. And if water was struck only in the 10 metres on either side of the pipeline, he said the only option was to dig wells there. “GAIL officials say that they are only acquiring the right of use [ROU] for the pipeline to pass through our lands and that they will return the land to us after it is laid. But it is practically impossible to do farming after the land is returned to us with these restrictions,” said Shanmugam.
His suggestion is for the pipeline to be laid in Tamil Nadu along the national highways as it had been done in Kerala, Goa and Gujarat for crude oil or gas pipelines. No farmer has opposed the project. What baffles him is why GAIL, “which has not settled the issue of laying the KKBMPL through 501 km in Kerala [where also farmers have opposed the pipeline passing through their lands], was working vigorously to implement it in Tamil Nadu, which lies in between Kerala and Karnataka, on the pipeline route.” G.K. Nagaraj, president of the Kongunadu Jananayaga Katchi (or the Kongunadu Democratic Party), and P. Kandasamy of the Farmers’ Association (a non-political organisation), Coimbatore, pointed out how the title of the land through which the pipeline traversed would be in the name of the landowners but the right of use would be in GAIL’s name for 99 years. “Since the ROU is with GAIL, what can I do by merely having the title of the land?” asked Kandasamy.
“It virtually amounts to selling the land. No bank will give you loans for putting up poultry farms or establishing industries on your land. I can only be its watchman,” Nagaraj said.
With the Assembly elections just around the corner, all political parties have closed ranks on the issue. In fact, as in the case of the Kudankulam Nuclear Power Project, the AIADMK government did a volte-face on the GAIL issue. In a meeting convened by then Chief Secretary Debendranath Sarangi on December 5, 2012, it was “agreed that the realignment of the pipeline was not feasible at this juncture...” and that “the protesters are to be firmly informed that the law of the land will prevail”.
But the Jayalalithaa government started backing the farmers’ demand for realignment in March 2013, following firm opposition by them in the three-day public hearing held by the State government. Significantly, the 2014 Lok Sabha elections were just a year away.
After the Supreme Court’s order of February 2, the Dravida Munnetra Kazhagam (DMK), the Marumalarchi Dravida Munnetra Kazhagam (MDMK), the Pattali Makkal Katchi (PMK), the CPI(M), the Communist Party of India (CPI), the Congress and the Tamil Maanila Congress (TMC) demanded that the State government prefer a review petition in the Supreme Court. The Desiya Murpokku Dravida Kazhagam (DMDK), founded by the actor Vijayakanth, filed a review petition on February 6.
The government followed suit with its review petition on February 8. The petition’s thrust was that the Supreme Court had given permission to GAIL without examining whether the pipeline cut across lands that had educational institutions and that it was possible to lay the pipeline along the national highways without disturbing farming. In Dharmapuri district, 25 educational institutions stood on the swathe of land for the proposed pipeline. The petition also contended that the public hearings organised by GAIL were a “farce” and that it had not adopted the mandatory procedures under The Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962, for laying the pipeline. “More than 85 per cent of the landowners were not served notice as per the provisions in Section 3 of the Act,” the petition said. It argued that the State “has to take into account the apprehensions raised by the farmers” and that “no project can ever be executed by the State government through police operations, thereby alienating the entire local population”.
Chief Minister Jayalalithaa wrote to Prime Minister Narendra Modi on February 8, pointing out that Section 7(1) (a) of the 1962 Act enjoined that “no pipeline shall be laid” on any land which “was used for residential purposes” or on which “there stands a permanent structure” or is “appurtenant to a dwelling house”. The present alignment of the pipeline, she said, would damage the agricultural property of thousands of farmers in seven districts, lead to the uprooting of about 1,20,000 fruit-bearing trees, and put restrictions on digging wells. She said that the State government “believes that a realignment of the pipeline route along the highways with the least harm to the people and the least adverse impact on agriculture would be the best way forward to speedily implement the project”.
GAIL could be directed to be part of the experts’ committee set up by the State government to explore the possibility of laying the pipeline along the national highways, the letter said. Jayalalithaa wanted the Centre to rescind all the notifications issued in 2011 and 2012 under the 1962 Act to facilitate the conduct of a Social Impact Assessment (SIA) of the project. The 1962 Act is one of the 13 Acts exempted from doing the SIA, she said.
The KKMBPL project began with a gazetted notification by the Union Ministry of Petroleum, on behalf of GAIL, on October 22, 2003, for its implementation. The laying of the pipeline involved acquisition of the right of user in land that is required for the project under the 1962 Act and the Petroleum and Natural Gas Regulatory Board Act, 2006. Under Section 6(1) of the 1962 Act, several notifications dated December 19 and 27, 2011, and January 4, March 7, and April 20, 2012, were issued, specifying the parcels of land required for laying the pipeline in the seven districts. According to Section 6(2) of the Act, upon publication of the declarations in these notifications, the right of user in these parcels of land stood vested absolutely in the Central government.
GAIL organised public hearings in the seven districts, with the District Collectors presiding over them. According to Nagaraj, the farmers opposed the project but the Collectors sided with GAIL in these hearings, and GAIL began to lay the pipeline.
A GAIL official said: “We have acquired the right to use the land, but we have not acquired the land itself. We hand over the land to the farmer once the pipeline is laid.” The compensation to be paid to the farmers is 10 per cent of the guideline value of the land. For the trees cut, GAIL would pay the farmers the money that would accrue from the trees’ yield for their full life, the official said. But the farmers were agitated when GAIL dismantled borewells, coops and cattle sheds on the demarcated area and uprooted large trees there.
On June 12, 2012, the aggrieved farmers formed the Farmers’ Livelihood Protection Committee, with P.R. Natarajan and A. Ganesamurthy, both former members of the Lok Sabha, and Nagaraj leading them in their battle against the project. Natarajan of the CPI(M) was an MP from Coimbatore and Ganesamurthy of the MDMK was elected from Erode.
When farmers in a few places prevented GAIL officials from laying the pipeline and allegedly damaged the machinery in the first half of 2012, GAIL approached the Madras High Court seeking a direction asking the State government to provide adequate police protection to GAIL officers, labourers and machinery engaged in laying the pipeline.
Dismissing GAIL’s petition, Justice K. Chandru, on July 26, 2012, said he was not inclined to give any direction in the absence of the company establishing any right to seek such a protection. A complaint made by GAIL to the Royakottai police in Krishnagiri district had not mentioned the name of the accused. When land was sought to be interfered with, landowners and occupants were naturally apprehensive about the loss of property and were likely to ventilate their grievance in a democratic manner, Justice Chandru observed, and when such democratic protests took place, the court could not be a party to suppress such protests in the name of issuing a writ.
On GAIL’s appeal against the order, the First Bench of the Madras High Court, comprising Chief Justice M.Y. Eqbal and Justice T.S. Sivagnanam, on October 4, 2012, directed the Chief Secretary of the State to convene a meeting for each of the seven districts. It said the procedures adopted in public hearings for a project could be adopted in the meetings and the District Collectors, GAIL officials and landowners could be invited. The State government, thereafter, should take a decision to facilitate the laying of the gas pipeline, the court said. The landowners should bear in mind that the project was of national importance and in the public interest, and they should, therefore, endeavour to make it successful, the court said.
The farmers’ agitation intensified in 2013. What intimidated them were the amendments made in 2011 in the 1962 Act. The newly introduced Section 15(2) says that whoever wilfully destroys, damages or extracts petroleum products from the pipeline shall be punished with 10 years of rigorous imprisonment and a fine. The new Section 16A says that if a petroleum product, together with any tool or vehicle, believed to be stolen from the pipeline, is seized from a person, the burden of proving that the seized property is not stolen property is on the person from whose possession the property is seized.
Shanmugam and Kandasamy said that if someone tampered with the pipeline and stole the petroleum product, the farmer on whose land they were found would have to prove his innocence. Shanmugam said: “This means I should hand over the land to GAIL and be a security guard for its pipeline.”
When GAIL officials began laying the pipes on February 1, 2013, at Devar Uthupallam village in Dharmapuri district, the farmers opposed it. The police arrested Manikkam and Murugan, members of the Farmers’ Livelihood Protection Committee, and remanded them to judicial custody for 15 days. They are now out on bail.
To stop GAIL’s work and to “protest against the police high-handedness”, about 200 farmers led by D. Ravindran, vice-president of the Tamil Nadu Vivasayigal Sangam, gathered at Elagiri village in Dharmapuri district on February 6. Some GAIL machinery was removed. The next day, a posse of police held the landowners captive before GAIL’s work began, said Shanmugam. CPI(M) legislators A. Soundararajan and P. Dillibabu (representing Harur in Dharmapuri district) raised the issue in the Assembly the same day. When farmers protested against the laying of the pipeline at Mullainaickanur in Tirupur district on February 9, the police beat them up. The farmers went to meet the District Collector the next day, but he did not give them any assurance. When the farmers, therefore, resorted to a dharna, 300 of them, including women, were arrested.
Shanmugam said: “The AIADMK government has unleashed terrible repression against the farmers. They have been thrown into jail. Farmers, through whose land the pipeline will pass, have been intimidated into accepting cheques for the compensation amount. When farmers were inside their homes, they were locked up from outside [by the police]. This government has not acted in support of the farmers on the pipeline project issue.”
In fact, the minutes of the meeting held on December 5, 2012, in the Chief Secretary’s conference hall in Chennai “to discuss the administrative support/facilitation for the implementation” of the KKMBPL project reveal that the Jayalalithaa government was all for the project at one stage. Apart from Chief Secretary Sarangi, the Secretaries of Industries, Home and Revenue Departments, the Chairman and Managing Director of Tamil Nadu Industrial Development Corporation Ltd (TIDCO), the Collectors of the seven districts and GAIL officials took part in the meeting. According to the minutes, the Chief Secretary “advised the officials present in the meeting to provide necessary assistance to GAIL within a time frame” and “especially to the Collectors of seven districts... for expeditious completion of the pipeline project”. It was observed, the minutes said, that “land has to be necessarily acquired for projects of national importance” and that in the GAIL case, “only the right of way was being acquired, not the land itself”.
The minutes reveal that the Jayalalithaa government had ruled out the realignment of the pipeline and was in favour of taking a tough stand against the protesting farmers. The Collectors were to “convince” the farmers that the land was for ROU purpose only and that they could cultivate on the land after restoration. Protesters who demanded the pipeline’s rerouting were to be told that its alignment was done after conducting a survey which considered all technical and safety factors and that a “review of alignment is not possible at this stage”, the minutes said. However, in pursuance of the Madras High Court’s order of October 4, 2012, the State government held public hearings on March 6, 7 and 8, 2013, for the seven districts. In these hearings, 2,428 farmers from 134 villages unanimously asserted that the pipeline’s alignment would badly affect small and marginal farmers. It was after these hearings that the government did a volte-face.
In reply to a special calling attention motion tabled in the Assembly to highlight the plight of the farmers, Jayalalithaa said GAIL should give up its plan to take the pipeline through farmlands. It should realign the pipeline route along the national highways, she said. She alleged that GAIL chose to press ahead with the project without receiving the full-hearted consent of the farmers or properly intimating them.
Her assertive stand was followed up with the communication dated April 2, 2013, from her government to GAIL asking the company to stop laying the pipeline in its present alignment through agricultural lands and to explore ways of laying it along the national highways. It directed GAIL to immediately close all the existing trenches excavated for laying the pipeline and that the company should hand over the lands in its original condition to the farmers/landowners. Farmers, who had lost their fruit-bearing trees or structures, should be quickly compensated by GAIL, the communication said.
GAIL challenged this in the Madras High Court. In its writ petition, the company said that if the State government’s communication were to be upheld, no gas pipeline project could be undertaken in any part of the country. Its counsel argued that the government’s decision was illegal and unsustainable because GAIL had acquired the statutory right to lay the pipelines in the lands in question and the ROU in these lands had been vested in the company.
On November 25, 2013, the First Bench of the Madras High Court, comprising Chief Justice R.K. Agrawal and Justice M. Satyanarayanan, allowed GAIL’s writ petition as there was overwhelming public interest in favour of the project. Since the project would be ultimately connected with the national gas grid, it would benefit the State to a big extent, the judges said, giving their nod for the pipeline to pass through the seven districts concerned.
The State government went on appeal against this in the Supreme Court which, on February 2, quashed the State’s communication of April 2, 2013. The State government’s review petition follows this.
The farmers have now decided to protest in front of Central government offices in the seven district headquarters on February 23 to get the 1962 Act scrapped and to get the realignment of the pipeline done along the national highways. This decision was taken at a meeting of various farmers’ associations and political parties in Erode on February 7. Surprisingly, the AIADMK and the DMK did not take part in this meeting.