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FA/1924/2006 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1924 of 2006
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 ?
=========================================================
OIL
& NATURAL GAS CORPORATION LTD. THRO.DY.GENERAL MANAGER -
Appellant(s)
Versus
THAKOR
KALYANJI DHULAJI & 1 - Defendant(s)
=========================================================
Appearance
:
M/S
TRIVEDI & GUPTA for
Appellant(s) : 1,
NOTICE SERVED for Defendant(s) : 1,
MR NEERAJ
SONI, LD.ASST.GOVERNMENT PLEADER for Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 20/12/2010
ORAL
JUDGMENT
Present
appeal has been filed against the judgment and award dated 31st
August 2005 passed by the Principal Senior Civil Judge, Mehsana
in Land Acquisition Reference Case No.5548 of 2003, whereby the
reference was partly allowed and the appellant-ONGC was held liable
to pay different amount of rent for the different period prescribed
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, award came to be passed
by the competent authority fixing the amount of compensation.
However,
being dissatisfied with the award, the original claimants raised
dispute 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 award. Hence, present appeal.
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
this appeal 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 matter.
Hence, the impugned order passed by the reference Court, being bad
in law, deserves to be quashed and set aside.
For
the foregoing reasons, present appeal is hereby allowed. The
judgment and award impugned in the appeal is hereby quashed and set
aside. No order as to costs.
(K.S.
Jhaveri, J)
Aakar
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