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FA/2337/2002 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2337 of 2002
To
FIRST
APPEAL No. 2338 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PROJECT
MANAGER,OIL & NATURAL GAS CORP.LTD. - Appellant(s)
Versus
SPL.LAQ
OFFICER & 1 - Defendant(s)
=========================================================
Appearance :
MR
AJAY R MEHTA for
Appellant(s) : 1,
GOVERNMENT PLEADER for Defendant(s) : 1,
MR
AMIT C NANAVATI for Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 13/12/2010
ORAL
JUDGMENT
Both
these appeals involve common questions on law and
facts and therefore, they are disposed of by this common judgment.
1. These
appeals have been filed against the judgment and award passed by the
learned Extra Assistant Judge, Mahesana in Land Acquisition Reference
Case Nos. 2719/1996 & 2720/1996 dated 29.06.2001, whereby, the
references were partly allowed and the appellant-ONGC was held liable
to pay additional amount of compensation to the original claimants
along with interest and costs.
2. The
facts in brief are that the competent authority under the Land
Acquisition Act made a proposal for temporary acquisition of the
lands belonging to the respondent-original claimant. After following
due procedure, the lands came to be acquired. Award came to be passed
by the competent authority fixing the amount of compensation.
3. However,
being dissatisfied with the award, the original claimant raised
dispute, by way of references, after a delay of several years. The
reference Court partly allowed the same by way of the impugned award.
Hence, these appeals.
4. The
main contention raised by the appellant-Corporation is that the
reference Court has not appreciated the law governing the subject,
more particularly, Section 35 of the Land Acquisition Act in its
proper perspective. It has been submitted that the reference Court
has also lost sight of several other important factors while awarding
additional compensation. It is, therefore, submitted that the
impugned award passed by the reference Court deserves to be quashed
and set aside.
5. Heard
learned counsel for the respective parties and perused the documents
on record. The issue regarding grant of future rent came up for
consideration of this Court earlier in a group of appeals being First
Appeal No.792/2003 & allied matters. The said group of
appeals came to be disposed of by this Court vide judgment and order
dated 21.03.2006. Relevant portion of the said judgment is reproduced
hereunder for ready reference;
“5.2 On
the facts of the case, it is evident that the Reference Court has
also determined the further rent which issue was not before it. I am,
therefore, of the opinion that the contention raised by the learned
Advocate for the appellant that the observation or direction issued
by the Reference Court in the operative part of the orders require to
be quashed and set aside, is required to be accepted. If the said
direction is allowed to remain then it would amount to granting the
rent which is over the rent fixed by the appellant-O.N.G.C. from time
to time. Moreover, the same has been fixed without considering as to
what would be the future rent fixed by the appellant- O.N.G.C, which
is beyond the scope of reference. Hence if the said observation is
allowed to remain then, in that event such compensation would be much
more than the amount which has been found to be adequate by the
Court.
5.3 It
may be noted that the Reference Court was dealing with a particular
acquisition and it was not open for the said Court to pass an order
in respect of future rent. Such an observation on the part of the
Reference Court is clearly bad in law in view of the provisions of
Section 35(3) of the Act. In that view of the matter, the
observations or direction issued by the Reference Court with regard
to additional amount of compensation, requires to be quashed and set
aside.
6.0 In
the result, these appeals are allowed. The observation “over
the rent fixed by O.N.G.C. from time to time with the running
interest at the rate of 9% p.a. from the date of due date of running
till the day of payment is made”, made by the Reference
Court in the operative part of the impugned judgments and awards, is
quashed and set aside. These appeals are allowed to the aforesaid
extent. Rule is made absolute to the aforesaid extent with no order
as to costs.”
6. From
the above order passed by this Court, it is clear that while
considering an application u/s. 35(3) of the said Act, the reference
Court is not empowered to pass an order in respect of future rent. In
other words, the reference Court has no jurisdiction to grant
additional amount of compensation while dealing with an application
u/s.35(3) of the said Act.
7. Looking
to the facts and circumstances of the case, it would be beneficial to
refer to a decision of this Court in the case of Oil & Natural
Gas Corporation Ltd. v. Sankarji Hemaji, 2008 (2) G.L.R. 1226,
more particularly, on the observations made in Para-42 therein, which
reads as under;
42.
For the reasons stated hereinabove, all the appeals succeed and are
allowed with costs which is quantified at Rs.5000 (Rupees Five
Thousand only) per each appeal. The impugned common judgement and
award dtd. 15/10/2005 passed by the learned Principal Senior Civil
Judge, Mehsana (Mr.J.R. Shah) in Land Reference Case Nos.3780 to
3784 of 2003 is hereby quashed and set aside and it is held that :-
The
reference applications submitted by the original claimants were not
maintainable.
The reference applications
were required to be dismissed on the ground of limitation
considering Article 137 of the Limitation Act. In the alternate, the
same were required to be dismissed on the ground of delay and
laches.
The reference court has no
power, authority, competence and/or jurisdiction to decide the
dispute de-hors the reference made to him.
The
reference court has no jurisdiction to decide any other question
except the difference as to sufficiency of compensation in a
reference under sec.35(3) of the Act.
The
reference court has no jurisdiction to declare acquisition
proceedings and the award declared by the Special Land Acquisition
Officer under sec.35(3) of the Act as illegal and/or non-est in a
reference under sec.35(3) of the Act.
The
reference court has no jurisdiction to declare possession of the
acquiring body as illegal and/or unauthorised and consequently the
reference court has no jurisdiction to declare the ONGC –
acquiring body as trespasser that too without framing any issue.
The
reference court has no jurisdiction to award compensation by way of
mesne profit declaring compensation of the acquiring body as illegal
and unauthorised.
The
reference court has also no jurisdiction to award statutory benefits
and/or interest, as awarded by the reference court, as if the
acquisition proceedings is a permanent acquisition.
The
reference court has no jurisdiction to determine the dispute with
regard to sufficiency of the compensation beyond the period of three
years from the date of taking the possession.
The
Reference Court has no jurisdiction to restore the possession of the
land to the original owners while deciding the reference under
sec.35(3) of the Act.
9. As
can be seen that in the above decision of this Court, it has been
categorically held that the reference Court has no power to decide
the dispute de-hors the reference. It has also been further
held therein that the reference Court cannot restore the possession
of land while deciding the reference u/s.35(3) of the said Act.
10. On
the facts of the present case and in view of the principle laid down
by the Division Bench of this Court in O.N.G.C. v. Sankarji
Hemaji’s case (supra), I am of the view that the impugned award
passed by the reference Court cannot be sustained in the eyes of law,
as the same being illegal and improper, and therefore, it deserves to
be quashed and set aside. Consequently, the matter requires
reconsideration by the reference Court.
11. For
the foregoing reasons, the appeals are partly allowed. The impugned
award passed by the reference Court is quashed and set aside. The
matter is remanded to the concerned reference Court for consideration
afresh on merits and also without being influenced by this order, in
view of the principle laid down by this Court in the above decisions.
The reference Court concerned is directed to dispose of the
references expeditiously preferably within a period of two years from
the date of receipt of writ of this order.
12. With
the above observation and direction, both the appeals stand disposed
of. No costs.
[K.
S. JHAVERI, J.]
Pravin/*
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