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FA/731/2006 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 731 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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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 ?
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PROJECT
MANAGER - Appellant(s)
Versus
DECD
BECHARBHAI VANMALIDAS THRO' HEIR PATEL PRAHLADBHAI & 1 -
Defendant(s)
=========================================================
Appearance
:
MR
RR MARSHALL for
Appellant(s) : 1,
RULE SERVED for Defendant(s) : 1,
MS KRINA
CALLA AGP for Defendant(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 22/09/2008
ORAL
JUDGMENT
1. By
filing this appeal under Section 54 of the Land Acquisition Act read
with Section 96 of the Civil Procedure Code, the acquiring body i.e.
ONGC has challenged the judgment and order passed by the Reference
Court in Land Acquisition Reference No.1025 of 1987. The learned
Judge of the Reference Court disposed of the above reference by his
judgment and order dated 22.10.1993 and allowed all the references
partly.
2.0. On
behalf of the acquiring body, certain lands were sought to be
acquired on temporary basis for the purpose of its project work by
issuing Notification under Section 35 of the Act. The Land
Acquisition Officer after issuing personal notices to the claimants
and after considering the evidence on record has fixed the amount of
Rs.51 per Are as yearly rent. The claimants were not satisfied with
the same and, therefore, requested for Reference under Section 18 of
the Act. The Land Acquisition Officer referred the matter to the
District Court under Section 18 of the Act. According to the
claimants, looking to the potentiality of the land the yearly rent
should be fixed at Rs.151 per Are. The quantum of compensation in
each of these appeals are different. However the point is common.
The aforesaid references were thereafter disposed of by the learned
Judge by recording evidence in Reference No.1025 of 1987. The
learned Judge thereafter by the impugned order partly allowed the
References by enhancing the rent. In each of the References
additional amount was awarded as per the final directions in the
judgment of the trial Court. It is not necessary to go into the
quantum fixed by the Court as the learned advocate Mr. R. R. Marshal
for the appellant-Corporation has restricted his arguments regarding
certain directions issued in the operative part of the judgment
wherein the Reference Court has observed as under:-
?SThe applicant is
entitled to get additional amount of yearly rent at the rate of
Rs.100/- per Are over the rent fixed by ONGC from time to time with
the interest at the rate of 9% per annum from the date of due date of
running till the date of payment is made.??
2.1. In
each of the References such direction is issued by the Reference
Court. Mr. Marshall submitted that this direction is contrary to law
and there is no provision for fixing the future increase without
knowing whether the ONGC would continue with the temporary
acquisition or as to what would be the future that would be fixed by
the ONGC. He, therefore, submitted that the Court could not have
fixed the rent for future period. He submitted that even otherwise
when the acquisition is for a temporary court, the Court should not
have issued such directions.
2.2. A
group of first appeals being First Appeal No.792 of 2003 and other
cognate matters have been disposed of by the learned Single Judge of
this Court vide order dated 21.03.2006 wherein the learned Single
Judge has observed in paragraph 5.2 as under:-
?S5.2 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-ONGC from time to
time. Moreover, the same has been fixed without considering as to
what would be the future rent fixed by the appellant ONGC, 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.??
2.3. In
the present group of appeals the appellant ? ONGC has prayed as
under:-
?S5(a) to quash and
set aside the part of the impugned judgment and award dtd. 22.10.1993
passed by the Ld. Extra Asst. Judge, Mehsana, in LAR Case No.1025/87
whereby the Court orders the payment of yearly rent of Rs.100/- per
acre over the rent fixed by ONGC from time to time and that too with
running interest @ 9% p.a.??
3.0. Considering
the aforesaid facts, all the appeal is allowed. The observations of
the learned trial Judge, ?S…over the rent fixed by ONGC from
time to time with the interest at the rate of 9% per annum from the
date of due date of running till the date of payment is made?? are
set aside. The appeal is accordingly allowed in terms of paragraph
5(a) of the appeal memo to the aforesaid extent with no order as to
costs.
[K.S.
JHAVERI, J.]
/phalguni/
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