Gujarat High Court Case Information System
Print
FA/2605/2006 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2605 of 2006
=========================================
GENERAL
MANAGER
Versus
PATEL
VITHTHALDAS BABALDAS & 1
=========================================
Appearance
:
MS KJ BRAHMBHATT for
Appellant
NOTICE SERVED BY DS for Respondent No.1
MS SHACHI
MATHUR, AGP for Respondent
No.2
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 11/04/2011
ORAL
ORDER
[1] This
appeal arises out of judgment and award dated 19.10.2005 rendered by
learned Principal Senior Civil Judge, Mehsana in Land Acquisition
Reference Case No.5831 of 2003 under Section 35 of the Land
Acquisition Act (“the Act” for short). The Reference
Court determined the compensation on the basis of the price of the
land under temporary acquisition per Square Meter ranging from Rs.3
per Square Meter to Rs.15 per Square Meter. It further transpires
that by judgment and award, Land Acquisition Reference Case came to
be disposed of by the Reference Court, for which this First Appeal is
filed against Land Acquisition Reference Case No.5831 of 2003.
[2] Heard
Ms.K. J. Brahmbhatt, learned counsel for the appellant and Ms.Sachi
Mathur, learned AGP for the respondent No.2 – State. Though
served, none appears on behalf of the respondent No.1.
[3] Ms.K.
J. Brahmbhatt, learned counsel for the appellant has submitted that
in the same group of matters, namely Land Acquisition Reference Case
Nos.5830 of 2003 and 5834 of 2003, appeals came to be preferred
before this Court bearing First Appeal No.2604 of 2006 and First
Appeal No.2608 of 2003. It is submitted that both these appeals
arising from the common impugned judgment and award came to be
allowed by this Court vide judgment and order dated 09.12.2010.
Reliance is also placed in the case of O.N.G.C. Vs. Shankarji Hemaji,
reported in 2008 (2) GLR 1226, wherein this Court has laid down the
relevant factors as well as scope of power of Reference Court under
Section 35 of the Act. Relying upon the above referred decision, it
is submitted that in the instant appeal also, the same observations,
which were made by this Court in the judgment and order dated
09.12.2010 in the allied two appeals may apply in the present appeal
and the appeal deserves to be allowed and the impugned judgment and
award dated 19.10.2005 be quashed and set aside.
[4] As
stated earlier, by virtue of impugned judgment and award dated
19.10.2005 in all five Land Acquisition Reference Cases collectively,
came to be disposed of by the Reference Court. Out of them, so far as
the Land Acquisition Reference Case Nos.5830 of 2003 and 5834 of
2003 are concerned, the appellant herein had preferred First Appeal
Nos.2604 of 2006 and 2608 of 2006 respectively and vide judgment and
order dated 09.12.2010, both the aforesaid appeals were allowed and
the impugned judgment and award dated 19.10.2005 came to be quashed
and set aside on the line mentioned in the said judgment and order.
Since this appeal arises out of the common impugned judgment and
award, obviously, this appeal is required to be decided on the same
ground also.
[5] The
illegality and infirmity noted by this Court in the judgment and
order dated 09.12.2005 in First Appeal Nos.2604 of 2006 and 2608 of
2006 were enumerated and discussed, the present appeal is required
to be allowed on the same ground also. Since the impugned judgment
and award dated 19.10.2005 came to be quashed and set aside qua
allied two matters, this appeal also deserves to be allowed on the
same ground.
[6] In
the order dated 09.12.2010 passed in First Appeal Nos.2604 of 2006
and 2608 of 2006, this Court has observed in paragraph No.3 which
reads as under:-
“3. This
Court has decided the said First Appeals on 13/03/2008 wherein the
lands of nearby villages were acquired for the same purpose.
Therefore, for the reasons stated in the aforesaid First Appeal
No.790 of 2007 and other allied matters, the impugned judgment and
award dated 19/10/2005 passed by the learned Principal Senior Civil
Judge, Mehsana in respective LAR Cases in these appeals is hereby
quashed and set aside with costs which is quantified at Rs.5000
(Rupees Five Thousand only) per each appeal 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.”
[7] In
above view of the matter, this appeal is allowed and the impugned
judgment and award dated 19.10.2005 passed by the learned Principal
Senior Civil Judge, Mehsana in respective Land Acquisition Reference
Cases in this appeal is hereby quashed and set aside in terms of
paragraph No.3 of the order dated 09.12.2010 passed in First Appeal
Nos.2604 of 2006 and 2608 of 2006 by this Court.
[
J. C. UPADHYAYA, J. ]
vijay
Top