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FA/1355/2000 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1355 of 2000
With
FIRST
APPEAL No. 1356 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
-Yes.
2
To be
referred to the Reporter or not ? -No.
3
Whether
their Lordships wish to see the fair copy of the judgment ?
-No.
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 ? -No.
5
Whether
it is to be circulated to the civil judge ? -No.
=========================================================
GENERAL
MANAGER - Appellant(s)
Versus
SPL.LAQ
OFFICER & 3 - Defendant(s)
=========================================================
Appearance
:
MR
RAJNI H MEHTA for
Appellant(s) : 1,
NOTICE SERVED for Defendant(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 15/09/2008
ORAL
JUDGMENT
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 19/8/1999 passed by learned Assistant Judge, Mehsana in
Land Acquisition Reference No.2548 and 2549 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
20/7/1992 awarded crop compensation and also awarded rental
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 rental compensation at
the rate of Rs.700/- per Are and further crop compensation. The
learned Assistant Judge after hearing the arguments awarded
additional compensation at the rate of Rs.180/- 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
Judgment reads as under:
?S41. 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 judgment. In that view of the matter the Reference Court
has to reconsider the issue in light of the ratio laid down in the
aforesaid judgment. This proposition is not disputed by the learned
Advocate for the respondents.
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 is 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.)
(ila)
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