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FA/131020/2000 2/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1310 of 2000
To
FIRST
APPEAL No. 1314 of 2000
=========================================================
DY.GENERAL
MANAGER, O.N.G.C. - Appellant(s)
Versus
SPL.LAQ
OFFICER & 1 - Defendant(s)
=========================================================
Appearance
:
MR
RAJNI H MEHTA for
Appellant(s) : 1,
MR SUNIT SHAH, GOVT. PLEADER WITH MS TRUSHA
PATEL, AGP for Defendant(s) : 1,
NOTICE SERVED for Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 06/08/2008
ORAL
ORDER
1. These
appeals at the instance of Oil and Natural Gas Corporation, the
Acquiring Body, under section 54 of the Land Acquisition Act read
with section 96 of Civil Procedure Code are against the judgment and
award dated 30th August 1999 passed by Assistant Judge,
Mehsana in Land Acquisition Reference Nos.2420 to 2424 of 1993.
2. The
State had acquired certain land on temporary basis of the original
claimants under section 35 of the Land Acquisition Act, 1894. After
following procedure the Land Acquisition Officer vide his order dated
18.07.1991 awarded compensation at the rate of Rs.80/- per Are per
year. Feeling aggrieved by the said decision the claimants filed
references before the learned Assistant Judge, Mehsana claiming
additional rental compensation at the rate of Rs.800/- per Are and
further crop compensation. The learned Assistant Judge awarded
additional compensation at the rate of Rs.300/- per Are per year and
further awarded 20% additional crop compensation. It is against the
said awards the present appeals have been filed.
3. Learned
Advocate for the appellant submitted that the issue involved in these
appeals is squarely covered by the ratio laid down in the case of Oil
& Natural Gas Corporation Ltd. Vs. Sankarji Hemaji & Anr
reported in [2008] 17 GHJ (523). The operative part of the said
Judgement 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.
4. Admittedly
the Reference Court has not considered the question of jurisdiction
and also the limitation and other questions as set out in the
aforesaid judgement. In that view of the matter the Reference Court
has to reconsider the issue in light of the ratio laid down in the
aforesaid judgement. This proposition is not disputed by the Ms.
Patel, learned AGP for the respondent no.1.
5.
However, in view of the decision in the case Patel Govindbhai Vs.
Special Land Acquisition officer, reported in 2006(2) GLR 1152,
the contention that the award of interest from the date on which the
annual rent became payable till the date of actual payment cannot be
accepted. In the said decision it is held that the interest is
payable from the date on which the annual rent became payable till
the date of actual payment.
6. In
the case of State of Maharashtra Vs. Maimuma Banu, reported in
(2003)7 SCC 448 it is held that on the facts of the case though
landowners are not legally entitled, yet on equitable grounds
interest at the rate of 6% was granted and that provisions of
sections 17(3-A), 23(1-A), 28 and 34 are not applicable to rental
compensation.
7. At
this stage is is also required to be noted that in the case of Brij
Behari Vs. State of UP reported in AIR 1986 SC 1895 it was held
that when possession had been taken under section 35 of the Act it
is not a case of acquisition under Part II thereof and that in case
of temporary occupation of land solatium is not payable. It is also
required to be noted that section 34 makes provision for the rate of
interest payable in case of permanent acquisition, while sections 35,
36 & 37 provide for the rate of interest payable in case of
temporary acquisition. This has been clearly distinguished in the
case of Patel Govindbhai Ambaram Vs. Special Land Acquisition Officer
and Anr. Reported in 2006(2) GLR 1152.
8. In
the premises aforesaid, these appeals are allowed. The judgment and
award impugned in these appeals are quashed and set aside. The
matters are remanded to the Reference Court for fresh consideration
in light of the judgments in the case of Oil & Natural Gas
Corporation Ltd, State of Maharashtra, and in the case of Patel
Govindbhai (Supra). No order as to costs.
[K.S.
JHAVERI, J.]
Divya//
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