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FA/3867/2008 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3867 of 2008
To
FIRST
APPEAL No. 3872 of 2008
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 ?
=========================================================
DEPUTY
GENERAL MANAGER - Appellant(s)
Versus
RABARI
AMRUTBHAI MANDANBHAI & 1 - Defendant(s)
=========================================================
Appearance
:
MR
RR MARSHALL for
Appellant(s) : 1,
MR AJ PATEL for Defendant(s) : 1,
MR AV
PRAJAPATI for Defendant(s) : 1,
MR NEERAJ SONI, LD.ASST.GOVERNMENT
PLEADER for Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 10/12/2010
COMMON
ORAL JUDGMENT
This group of appeals involve
common questions on law and facts and therefore, they are disposed
of by this common judgment.
These appeals have been filed
against the judgment and award passed by the Principal Senior Civil
Judge, Mehsana in Land Acquisition Reference Case No.3614 of 2003
and allied matters dated 06th August 2005, whereby, the
references were partly allowed and the appellant-ONGC was held
liable to pay different amount for different Land Reference Cases as
indicated in the operative part of the award, as annual rent to the
original claimants along with interest as enumerated in the award
till the entire amount is realised.
The facts in brief of the case are
that the Land Acquisition Officer made a proposal for temporary
acquisition of the lands belonging to the respondents, original
claimants. After following due procedure, the lands came to be
acquired. Thereafter, awards came to be passed by the competent
authority fixing the amount of compensation.
However, being dissatisfied with
the awards, the original claimed raised disputes by way of reference
before the Court below. The reference Court, after appreciating the
documents on record, partly allowed the same by way of the impugned
orders. Hence, these appeals.
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 amount
of rent.
Heard
learned counsel for the respective parties and perused the documents
on record. The issue involved in these appeals is squarely covered
by the ratio laid down by the Division Bench of this Court in the
case of Oil and Natural Gas Corporation Ltd. v. Sankarji Hemaji and
another, reported in (2008) 17 GHJ 523. It would be beneficial to
reproduce the relevant portion of the said decision as under :
“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.”
It
would also be beneficial to reproduce the operative part of the said
judgment, which reads as under :
“41. Similarly,
event he conduct and the action of the then Special Land Acquisition
Officer, who has referred the references applications in more than
100 cases to the reference court, though the applications for
reference were filed after a period of more than 20 years, is also
required to be considered seriously at the hands of Government.
Under the
circumstances, Chief Secretary, Revenue Department is directed to
hold necessary inquiry against the concerned Special Land
Acquisition Officer with regard to his conduct and actions. Registry
is directed to communicate this order to the Chief Secretary,
Revenue Department, State of Gujarat for compliance.
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 dated 15.10.2005 passed by the learned Principal Senior Civil
Judge, Mehsana (Mr. J.R. Shah) inland Reference Case Nos.3780 to 3784
of 2003 is hereby quashed and set aside and it is held that:
[i] The
reference applications submitted by the original claimants were not
maintainable.
[ii] 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.
[iii] 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.
[iv] The
reference court has no jurisdiction to decide any other question
except the difference as to sufficiency of compensation in a
reference under section 35(3) of the Act.
[v] 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 section 35(3) of the Act.
[vi] The
reference court has no jurisdiction to declare possession of the
acquiring body as illegal and/or unauthorized and consequently the
reference court has no jurisdiction to declare the ONGC-acquiring
body as trespasser that too without framing any issue.
[vii] The
reference court has no jurisdiction toward compensation by way of
mesne profit declaring compensation of the acquiring body as illegal
and unauthorized.
[viii] 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.
[ix] 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.
[x] 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.”
From
the above order passed by this Court, it is clear that while dealing
with 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. The
ratio laid down in the aforesaid case is squarely applicable to the
facts of the case. The learned advocate for the respondents is not
able to point out anything to take a different view in the matters.
Hence, the impugned orders passed by the reference Court, being bad
in law, deserve to be quashed and set aside.
For
the foregoing reasons, present appeals are hereby allowed. The
impugned judgments and awards are hereby quashed and set aside. No
order as to costs.
(K.S.
Jhaveri, J)
Aakar
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