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FA/1925/2004 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1925 of 2004
To
FIRST
APPEAL No. 1927 of 2004
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 ?
======================================
DY.GENERAL
MANAGER - Appellant(s)
Versus
AMRAJI
JALAJI THAKORE & 1 - Defendant(s)
======================================
Appearance :
MR
RR MARSHALL for Appellant(s) : 1,
MR AV PRAJAPATI for Defendant(s)
: 1,
RULE SERVED for Defendant(s) :
2,
======================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 09/12/2010
COMMON
ORAL JUDGMENT
These
appeal are filed under Section 96 of the Code of Civil Procedure,
1908 read with Section 54 of the Land Acquisition Act, 1894 against
the common judgment and award dated 27th
February 2004 passed by the learned 6th
Joint Civil Judge (SD), Mehsana in Land Reference Case Nos.876 of
2003, 877 of 2003 and 5159 of 2003 vide which the reference cases
were partly allowed and the acquiring body was ordered to pay
additional amount of rent at the rate of Rs.3.26 ps per square meter.
2 Since
all these appeals involve common questions of law and facts, the same
are heard and being disposed of by this common judgment and order.
3 It
is not in dispute that in the present case the lands in question were
sought to be acquired for a temporary period. Temporary acquisition
of land is covered in Part VI of the Act viz. Section 35, 36 and 37
of the Act.
4 Learned
counsel for the appellant – acquiring body submitted that the
issue involved in these appeals is squarely covered by the ratio laid
down in the case of Oil & Natural Gas Corporation
Limited v. Sankarji Hemaji & Anr., (2008) 17 GHJ 523. The
operative part of the said judgment reads 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.”
5. 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.
6. In
the result, the judgment and order passed by the Reference Court in
Land Acquisition References Nos.876 of 2003, 877 of 2003 and
5159 of 2003 is quashed and set aside,
and the matters are sent back to the trial Court to re-hear the
References and to decide the same in accordance with law and as per
the observations made in this judgment. If ultimately it is found by
the trial Court that Reference under section 35 (3)
of the Act is made in connection with the original period of three
years, the Court can certainly determine the question about fixation
of rent for the aforesaid period during which the land was under
temporary acquisition; but if it is found that the Reference is made
for a period beyond three years from taking over possession,
naturally no relief under section 35 (3) can be granted. The Court
below shall determine this question and pass appropriate order by
deciding the entire References afresh. Such decision shall be
rendered by the court below at the earlier possible, and in any
event, within six months from today. It is, however, clarified that
this Court has not expressed any opinion whether the nature of the
possession by the acquiring body is legal or not as the same can be
subject to any other agreement between the parties, and if there is
none, the land owners can certainly move the Collector under section
36 of the Act for restoring the land to them. Whether the acquiring
body has continued in possession in pursuance of some contractual
agreement, is a question which is required to be decided in a
separate proceedings if taken out by the parties. In these appeals,
this Court has only decided the scope of section 35 (3) of the Act to
the effect that Reference under this section can be made only for a
period up to three years from the commencement of occupation of the
land and the Reference Court cannot decide the Reference under sec.
35(3) of the Act for a period exceeding three years from the date of
commencement of the occupation.
Registry
is directed to return the R & P to the Reference court FORTHWITH.
All
these appeals are accordingly allowed.
(K.S.Jhaveri,
J.)
*mohd
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