Gujarat High Court
Deputy General Manager Oil & Natural Gas vs Heirs Of Decd.Kalaji Jalamji & on 7 March, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/FA/1947/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1947 of 2004
TO
FIRST APPEAL NO. 1959 of 2004
With
CROSS OBJECTION NO. 78 of 2004
In
FIRST APPEAL NO. 1947 of 2004
TO
CROSS OBJECTION NO. 88 of 2004
In
FIRST APPEAL NO. 1959 of 2004
With
CIVIL APPLICATION NO. 8987 of 2012
In
CIVIL APPLICATION NO. 8751 of 2004
TO
CIVIL APPLICATION NO. 8995 of 2012
In
CIVIL APPLICATION NO. 8763 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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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
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law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DEPUTY GENERAL MANAGER OIL & NATURAL GAS
CORP.LTD.....Appellant(s)
Versus
HEIRS OF DECD.KALAJI JALAMJI & 1....Defendant(s)
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Appearance:
MR RR MARSHALL, SENIOR ADVOCATE for the Appellant(s) No. 1
BHARGAV KARIA & ASSO, ADVOCATE for the Defendant(s) No. 1.1 - 1.2
SHRI P.P.BANAJI, AGP for the Defendant(s) No. 2
MR JAY P AMIN, ADVOCATE for the Defendant(s) No. 1.1 - 1.2
RULE SERVED for the Defendant(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 7/3/2017
ORAL JUDGMENT
1. The present group of First Appeals are filed by the Appellant - ONGC Limited being aggrieved with the judgment and order passed by the learned Civil Judge (SD), Nadiad in LAR Case Nos. 1296/1993, 1297/1993, 1298/1993, 1299/1993, 469/1992, 470/1992, 471/1992, 479/1992, 482/1992, 1300/1993, 1301/1993, 1302/1993 and 1303/1993 dated 21.1.2004, particularly allowing the Reference of the Respondents / Original Claimants, awarding Rs.15/- p per sq. meter, meaning thereby, after deducting an amount of Rs.1.50 paise as per the award, compensation of Rs.
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13.50 paise as additional award for the temporary acquisition or the rent with interest @ 12%.
2. The Respondents / Original Claimants have filed Cross Objections claiming the amount of compensation for the rent for temporary acquisition during the period from 16.2.1989 till February / March 1995, on the grounds stated in detail in the Cross Objections.
3. Heard learned Senior Counsel Shri R.R.Marshall for Marshall & Associates for the Appellant. Learned Senior Counsel Shri Marshall has referred to the papers and submitted that the land in question was in temporary acquisition for the period from 16.2.1989 till February / March 1995 when it was acquired permanently on 31.3.1995. He submitted that the Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as "the Act") was issued on 15.9.92 and the Notification under Section 6 of the Act was issued on 16.7.93, and ultimately, the land was acquired permanently. Learned Senior Counsel Shri Marshall submitted that the award was made by the Land Acquisition Officer on 31.3.1995 where the award was made for the land abutting the road at Rs.10/- and the land of interior side, which was Rs.8/-. However, he submitted that so far as the present lands are concerned, they are different, and therefore, the award was made by the Land Acquisition Officer, which was challenged by the Page 3 of 18 HC-NIC Page 3 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT Respondents / Original Claimants before the Reference Court by making a reference. He submitted that the acquisition was made, for which the Reference Court has enhanced the compensation up to Rs.30/- per sq. meter. He submitted that by way of First Appeal No. 4657 of 2001, the original land owners have challenged the award of the Reference Court. He submitted that the High Court while deciding the First Appeal awarded the compensation @ Rs.51/- per sq. meter.
4. Learned Senior Counsel Shri R.R.Marshall submitted that the moot question which is required to be considered is whether the Reference Court could award the rent or the compensation for temporary acquisition beyond the period of three years as provided in Section 35 of the Act. He submitted that whether the amount of compensation for temporary acquisition of land during the period from 1989 to 1995 could be sustained. Learned Senior Counsel Shri R.R.Marshall submitted that the court has earlier considered that the award of compensation for temporary acquisition @ Rs.15/- per sq. meter could be justified considering the cost of acquisition as awarded by the High Court in the aforesaid First Appeal No. 4657 of 2001 to 4669 of 2001.
5. Learned Senior Counsel Shri R.R.Marshall therefore submitted that the Reference Court in the present proceedings has enhanced the Page 4 of 18 HC-NIC Page 4 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT amount of compensation for temporary acquisition of land to the tune of Rs.15/- per sq. meter which is at much higher side as compared to the cost of acquisition of the land permanently @ Rs.51/- per sq. meter. Learned Senior Counsel Shri Marshall emphasized that by permanent acquisition, the original land owners are deprived of the total right qua the land in question for which the compensation is awarded to the tune of Rs.51/- per sq. meter. However, for the temporary acquisition of the same land it is awarded @ Rs.15/- per sq. meter. Learned Senior Counsel Shri Marshall therefore strenuously submitted that the court may bear in mind the amount of compensation for total deprivation of the land or extinction of the right qua the land, and the use of the land for a limited period by temporary acquisition may not be the same as compulsory acquisition of the land. Learned Senior Counsel Shri Marshall submitted that the Reference Court has also committed an error while interpreting the statutory provisions of the Act. He referred to the provisions of Section 35 of the Act and submitted that as provided in the said Section, the temporary acquisition and compensation for such temporary acquisition could be only for a period of three years. Learned Senior Counsel Shri Marshall submitted that the Reference Court has failed to consider this aspect and has committed an error awarding the compensation for Page 5 of 18 HC-NIC Page 5 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT the temporary acquisition beyond the period of three years. Learned Senior Counsel Shri Marshall emphasized that for the compensation beyond the period of three years, the original owners may have a recourse under the civil law remedy or under the common law remedy. Learned Senior Counsel Shri Marshall therefore submitted that the Reference Court has committed an error in appreciating provision of Section 35 of the Act. He submitted that the award of the Reference Court for temporary acquisition of the land beyond the prescribed period is erroneous. He also submitted that apart from the period even the quantum of compensation or the award made @ Rs.35/- per sq. is much higher and therefore the present First Appeal may be allowed.
6. Learned Senior Counsel Shri Marshall referred to the order of the Reference Court and submitted that there is a non application of mind for the purpose of arriving the amount of compensation @ Rs.50/- per sq. meter. He submitted that quantifying and arriving at the figure of Rs.15/- per sq. meter for the compensation is in the air without any reason for such calculation on the basis of which it could be arrived at. Learned Senior Counsel Shri Marshall submitted that it is more a guess work which is made vaguely without any basis, and therefore, the present group of First Appeals may be allowed.
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7. Learned Counsel Shri B.D.Karia for Bhargav Karia & Associates, for the Respondent has referred to the papers and the judgment of the Reference Court and submitted that apart from the submissions with regard to Section 35 of the Act, it cannot be said that the findings and conclusion of the Reference Court is vague. He submitted that there is a specific observation and finding that the land is a fertile land having irrigation facility, where different crops, as stated in detail, are taken. He submitted that the same have been verified with reference to the entries in Village Form 7/12. Learned Counsel Shri Karia submitted that though the claim was made by the claimant for three crops, the Reference Court has accepted only qua two crops on the basis of record observing that only two crops are taken as shown in the record. Therefore, it cannot be said that it is a guess work or it is in the air as sought to be canvassed. Learned Counsel Shri Karia pointedly referred to the record, including the documents with list at Exh.33, which in turn include village form 7/12 for different villages with the entries regarding the crops taken at the relevant time. Learned Counsel Shri Karia referred to the deposition of one of the claimant at Exh.34. He also referred to the deposition of one Ibrahimbhai at Exh.87 who is the witness on behalf of ONGC. He submitted that he also supported the claim made by the Respondents / Original Page 7 of 18 HC-NIC Page 7 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT Claimants regarding the yield. Learned Counsel Shri Karia submitted that the acquisition of the land permanently under the Land Acquisition Act is one thing and temporary acquisition of the land depriving the owner the use of the land is another thing. He submitted that if the land is acquired or taken away by the Appellant on temporary basis, the claimants are entitled for compensation for such temporary acquisition, which deprive the use of the land temporarily. He submitted that the period during which the owners are deprived the use and enjoyment of the land, the compensation would be justified. He therefore submitted that it is the deprivation of the use of the land for the purpose of agricultural yield and the income during the period, which has to be considered while deciding the compensation for temporary acquisition. Learned Counsel Shri Karia submitted that on the basis of the evidence, the claimants have established that they have been taking the yield from the land which is fertile, and therefore, the assessment of the compensation for temporary acquisition has been made by the Reference Court, which cannot be said to be erroneous.
8. Learned Counsel Shri Karia referred to and relied upon the judgment of the Hon'ble Apex Court in case of Brij Behari Sahai v. State of Uttar Pradesh, reported in (1986) 3 SCC 564 and Page 8 of 18 HC-NIC Page 8 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT emphasized the observations made in paragraphs 4 and 5 of the judgment. He has also referred to and relied upon the judgment of the High Court in case of Dy. General manager v. Patel Anil Bachubhai and Anr., reported in 2008 (2) GLH 767 and emphasized the observations made in paragraph 30, which clearly suggest that the market value is different than the loss suffered by the claimants for deprivation of their land by temporary acquisition. Therefore, learned Counsel Shri Karia submitted that the acquisition of the land under the Land Acquisition Act and the compensation is one thing but the compensation for the loss suffered for deprivation and use of the land during the temporary acquisition is another thing, which can be assessed on the basis of the loss of yield and loss for the use of the land which is required to be compensated. Learned Counsel Shri Karia strenuously submitted that in order to assess this compensation, the nature of the land, yield or the crops etc. have been considered with reference to the revenue records like village form 7/12, making the entry regarding the crops taken by the claimants which has been considered. He submitted that the amount awarded by the Reference Court is not just but in fact it is less, for which, Cross- Objections have been filed for enhancement @ Rs.16.5 per sq. meter. Learned Counsel Shri Karia therefore submitted that the Page 9 of 18 HC-NIC Page 9 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT present group of First Appeals filed by the Appellant may be dismissed and the Cross Objections of the Claimant for enhancement may be allowed.
9. Learned Counsel Shri Karia referred to and relied upon the judgment of the Hon'ble Division Bench of the High Court reported in 2008 (2) GLR 1226 in case of Oil & Natural Gas Corporation Ltd. v. Sajkarji Hemaji & Anr. and submitted that the submissions regarding Section 35 of the Land Acquisition Act that the Reference Court could award the compensation for temporary acquisition, maximum for a period of three years, and for the remaining period, the recourse can be had by way of civil remedy for the loss suffered by the claimant itself would suggest that the compensation could be awarded for the loss suffered. He therefore submitted that the statutory provision of Section 35 of the Act providing the award or the compensation for a period of 3 years for temporary acquisition does not refuse the claim for compensation in a civil remedy for the loss suffered by the claimant. He therefore submitted that the aspect of interest may also be considered. He submitted that the interest may be paid and the court may in its discretion award the interest. Learned Counsel Shri Karia submitted that the interest may not be limited up to the date of award but it should be till the date of payment. In support Page 10 of 18 HC-NIC Page 10 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT of this contention, learned Counsel Shri Karia has referred to and relied upon the judgment in case of Patel Govindbhai Ambaram v. Spl. Laq Officer and Anr., reported in 2006(1) GLH 224 and also the judgment in case of General Manager v. Special Land Acquisition Officer, reported in 2001 Law Suit (Guj) 750.
10.In rejoinder, learned Senior Counsel Shri R.R.Marshall referred to the papers and submitted that the reference is not an appeal proceeding but it is an independent proceeding under the statute. Learned Senior Counsel Shri Marshall therefore strenuously submitted that the provisions of Section 35 provide for compensation for loss suffered for temporary acquisition for a period of 3 years. He submitted that the Reference Court has committed an error by awarding the compensation exceeding the period of three years.
11.Learned Senior Counsel Shri Marshall again reiterated that apart from exceeding the period of three years as provided in Section 35 of the Act, even the assessment of compensation or the quantum of compensation @ 50/- per sq. meter is on much higher side. He submitted that the cost of acquisition of the land for total deprivation or extinction of the right permanently is Rs.51/- per sq. meter and for temporary deprivation of use of the land by temporary acquisition cannot be as high as Rs.15/-. He again Page 11 of 18 HC-NIC Page 11 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT referred to the judgment of the Hon'ble Apex Court in case of State of Maharashtra and Others v. Maimuma Banu and Ors., reported in 2003 (7) SCC 448.
12.Learned Senior Counsel Shri R.R.Marshall also submitted that the interest has to be as provided normally and it could not have been awarded @ 12% even if it is assumed that the discretion lies with the court to award the interest. Learned Senior Counsel Shri Marshall submitted that as per the normal practice of awarding interest @ 6% it may be awarded but the Reference Court has awarded @ 12% which is on much higher and therefore the present Appeal may be allowed.
13.In view of these rival submissions, it is required to be considered whether the present group of First Appeals deserve consideration.
14.The first limb of the submissions which have been made by learned Senior Counsel Shri R.R.Marshall referring to the provisions of Section 35 (3) of the Act which provides:
"In case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector shall refer such difference to the decision of the Court."
Thus, the provisions of Section 35 of the Act provide for the period of temporary acquisition of the land for a period not exceeding Page 12 of 18 HC-NIC Page 12 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT three years, meaning thereby the acquisition could be for a limited period and the compensation also could be for a period of three years. The provisions of Section 35(3) of the Act has a reference to sufficiency of the compensation. However, this issue has been dealt with by the High Court (Coram:Akshay H.Mehta,J) in case of Patel Shambhubhai Bhaichandas v. State of Gujarat & Anr. reported in 2007 (1) GLR 713 wherein it has been specifically observed:
"If the possession is illegal or unlawful or unauthorized, there is no remedy provided under the Act for the person interested in the land to recover it from the occupier. Moreover, upon expiration of the period, the provisions of the Act will cease to apply, except to the extent they relate to purposes mentioned u/S. 36(2) and 37. Therefore, the concerned person will have to take recourse only to the remedy that has been provided under common law. In other words, he has to approach the Civil Court by filing suit for recovery of possession on the ground that the possession is unauthorized one."
The same view has also been reiterated in the subsequent judgment in the subsequent judgment of the Hon'ble Division Bench in a judgment in case of Dy. General Manager v. Patel Anil Bachubhai and Anr. reported in 2008 (2) GLH 767. Therefore, in view of the aforesaid settled position of law interpreted by the Page 13 of 18 HC-NIC Page 13 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT High Court, the compensation for temporary acquisition would be confined to period of three years only. The award made by the Reference Court for a period beyond three years would not be justified and cannot be sustained. Therefore, even if the occupation has continued, it cannot be said to be unauthorized and the claimant could have a recourse before the civil court by filing the suit for recovery of possession and also for the compensation for a period exceeding three years.
15.Therefore in view of the statutory provision under Section 35 of the Act providing that at the most it can be considered for a period of three years, the present group of First Appeals deserve to be allowed. However the compensation for the temporary acquisition of land could be confined to period of three years and the challenge to the award made by the Reference Court for a period exceeding three years cannot be sustained. Therefore, the another aspect which is required to be considered is qua the adequacy of the compensation or quantification of compensation for temporary acquisition of the land for a period of three years as provided under Section 35 of the Act. Therefore, once it is accepted that the Reference Court could have awarded compensation only for a period of three years, the another facet of the submission that the Reference Court has arrived at a figure of Rs.15/- per sq. meter for Page 14 of 18 HC-NIC Page 14 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT the compensation without any justification or basis and it is more a guess work, require a closer scrutiny. In order to appreciate this submission, a close look at the record particularly the documents along with the list Exh.33 is necessary. As it transpires from the examination and scrutiny of the documents with list Exh.33 will make it clear that the court below has considered with minute detail about the yield. Similarly, though the claimant had made the claim for three years or more, the Reference Court has considered on the basis of the material and evidence that particular yield was taken for two years only and therefore has confined the calculation for two years instead of three years as claimed by the claimant. Again, it is an entry based on the village form 7/12 with regard to the nature of crop over a period of time with all details and on that basis the Reference Court has arrived at the conclusion for the purpose of compensation which cannot be said to be in the air or a guess work as sought to be canvassed. Moreover, it has also considered the deposition of the claimant at Exh. 34 as well as the officer of the Appellant at Exh.87 clearly suggest that the land is fertile and the crop or the yield has been taken which is reflected from the record. Thus, the temporary acquisition of the land may not be on the same footing as permanent acquisition resulting in extinction of the right and it is a lesser deprivation. However, as Page 15 of 18 HC-NIC Page 15 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT rightly submitted by learned Counsel Shri Bhargav Karia for the purpose of compensation for such temporary acquisition during which a person is deprived of the use and enjoyment of the land and is also deprived of his right to yield and the crop resulting in loss for such period would be assessed and considered on the basis of the material and evidence. Therefore, in this background the compensation which has been awarded cannot be said to be excessive or at higher side. However, the same land are acquired permanently subsequently as referred to in the judgment in First Appeal No. 4657 of 2001 dated 20.2.2002.
16.Therefore, the present group of First Appeals deserve to be allowed particularly in view of the provisions of Section 35 of the Act, and the judgment and order of the Reference Court deserve to be quashed and set aside to the extent that it provides compensation exceeding the period of 3 years from the date of temporary acquisition. The compensation for such temporary acquisition therefore would be confined to period of three years only. The Respondents / Original claimants would be entitled to get the compensation for a period of three years i.e. 1989-1990, 1990-1991 and 1991-1992. In other words the Respondents shall be entitled to claim the compensation for the period of three years as per the award of the Reference Court @ Rs.15/- per sq. meter and not till Page 16 of 18 HC-NIC Page 16 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT the compulsory acquisition. The amount of compensation is therefore ordered to be calculated for a period from 1989-1990, 1990-1991 and 1991-1992 as per the order passed in the respective References by the Reference Court.
17.One more aspect which is required to be considered is regarding the interest, for which learned Senior Counsel Shri Marshall has made the submissions referring to the judgment of the Hon'ble Apex Court in case of State of Maharashtra and Ors. v. Maimuma Banu and Ors. reported in (2003) 7 SCC 448 as well as the judgment in case of Patel Govindbhai Ambaram v. Spl. Laq Officer and anr. reported in 2006(1) GLH 244.
18.Learned Counsel Shri Bhargav Karia has submitted that as the Respondents claimants have been deprived of the use and enjoyment of the land for the yield, the interest may be awarded @ 9% which would be just and proper. However, as the provisions does not specify regarding the payment of interest and at the same time the Respondents claimants have been deprived of their right to use and enjoy the land even during the period of temporary acquisition, it would entitle them for the interest. Even in the judgment of the Hon'ble Apex Court in case of State of Maharashtra and Ors. v. Maimuma Banu and Ors. (supra), the interest has been awarded @ 6%. Therefore the interest awarded Page 17 of 18 HC-NIC Page 17 of 18 Created On Mon Aug 14 05:57:30 IST 2017 C/FA/1947/2004 JUDGMENT shall stand reduced and modified to the extent of 6% instead of 12%.
19.In view of the discussions made herein above, the counter claim which is stated to have been made in the written statement for additional compensation cannot be entertained and are accordingly stands disposed of.
(RAJESH H.SHUKLA, J.) JNW Page 18 of 18 HC-NIC Page 18 of 18 Created On Mon Aug 14 05:57:30 IST 2017