Gujarat High Court
General Manager vs Jhala Kiritsinh Manubhai & on 5 February, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/4421/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 4421 of 2008
TO
FIRST APPEAL NO. 4424 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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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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GENERAL MANAGER....Appellant(s)
Versus
JHALA KIRITSINH MANUBHAI & 1....Defendant(s)
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Appearance:
MARSHALL & ASSOCIATES, ADVOCATE for the Appellant(s) No. 1
MR A J PATEL, ADVOCATE for the Defendant(s) No. 1
MR ALKESH SHAH, AGP for the Defendant(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 05/02/2014
COMMON ORAL JUDGMENT
1. This group of appeals under Section 54 of the Page 1 of 6 C/FA/4421/2008 JUDGMENT Land Acquisition Act, 1894 (hereinafter referred to as the Act) read with Section 96 of the Code of Civil Procedure, 1908 is directed against the common judgment and award dated 17.04.2008 rendered in Land Acquisition Reference Nos.382 of 2001 to 385 of 2001 by learned Principal District Judge, Mehsana.
2. As the questions involved in this group of appeals are identical and similar and as same set of evidence is adduced and relied upon by the Reference Court, all these appeals were heard together and disposed of by this common judgment and order.
3. The facts which can be culled out from the record of this appeal are that that the State Government sought to acquire the lands of the original claimants on behalf of the appellant for the public purpose on drilling project of well under Section 35 of the Act. The Special Land Acquisition Officer by an award dated 07.12.1992 fixed the rental compensation for the land acquired at the rate of Rs.0.90 paisa per sq. mtr. per year.
4. Being aggrieved and dissatisfied with the aforesaid award, the original claimants preferred references as provided under Section 35(3) of the Act which came to be registered as Land Acquisition Reference Case Nos.382 of 2001 to 385 of 2001 before the Court of learned Principal District Judge, Mehsana. The Reference Court vide impugned judgment Page 2 of 6 C/FA/4421/2008 JUDGMENT and award dated 17.04.2008 has passed the following order.
"(i) The Land Acquisition Reference Cases are partly allowed.
(ii) The applicants are entitled for additional amount of compensation by way of rent of their acquired lands in LAQ Case No.59/1992, at Rs.4=00 ps. Per sq.mtr. From the date of occupation of the land till completion of three years only with interest at the rate of 9% per annum for one year and thereafter at the rate of 15 % per annum.
(iii) The applicants shall be entitled for proportionate cost and the opponents shall bear their own.
(iv) Award be drawn accordingly."
5. The acquiring body has preferred these appeals against the aforesaid common judgment and award.
6. Heard Mr.R.R.Marshall, learned Senior Counsel with Mr.V.K.Bhatia for the appellant, Mr.A.J.Patel, learned Counsel for the original claimants and Mr.Alkesh Shah, learned Assistant Government Pleader for the Special Land Acquisition Officer. I have also perused the record and proceedings of the Reference Court.
7. Learned counsel appearing for the appellant has taken this Court through the common impugned judgment and award and submitted that the common impugned judgment and award is erroneous, illegal and the same is contrary to the facts on record and de-hors the provisions of the Act. It was specifically submitted that the Reference Court has without examining the aspect of limitation, the possession was taken on 07.12.1992, whereas the references are filed in the year 2001 after a period of 9 years. Relying upon the judgment in the case of Oil & Natural Gas Commission Page 3 of 6 C/FA/4421/2008 JUDGMENT Ltd. Vs. Pandya Prahladbhai Manilal and others, reported in 2006(3) G.L.H. 662 as well as the judgment of the Hon'ble Division Bench in the case of Oil & Natural Gas Corporation Ltd. Vs. Sankarji Hemaji & Anr., reported in 2008 (2) GLR 1226, contended that the Reference Court ought to have examined the said aspect while entertaining the reference under Section 35(3) of the Act. He therefore, contended that the impugned judgment and award deserves to be quashed and set aside and the Reference deserves to be remanded back for its rehearing before the Reference Court.
8. Learned Assistant Government Pleader adopted the arguments made by learned counsel for the appellant.
9. Upon considering the submissions made by learned counsel appearing for the parties and on perusal of the impugned judgment and award as well as considering the binding decision of the Division Bench of this Court in the case of Oil and Natural Gas Corporation Ltd. Vs. Sankarji Hemaji & Anr., wherein this Court has observed thus in para 25:-
"25. Even otherwise as stated above, the Special Land Acquisition Officer declared the award under sec.35 of the Act as back as on 11/8/1980 determining the compensation/rent at the rate of 0.35 paise per sq.mtr. per annum which was never objected to by the original land owners / interested persons, but the same came to be accepted without raising any objection and still the respondents herein ý original claimants submitted the applications for making reference to the reference court under sub section (3) of sec.35 i.e. after a period of 21 years raising the dispute as to sufficiency of the compensation which was determined while declaring award on 11/8/1980. It is the contention on behalf of the original Page 4 of 6 C/FA/4421/2008 JUDGMENT claimants that as under sub section (3) of sec.58 of the Act on 11/8/2008, no time limit is prescribed and as it is the duty of the Collector to refer the dispute to the Reference Court and as the Collector has failed to perform the duty cast upon him, the application submitted by the claimants are within the period of limitation and/or not barred by delay and laches. It is the contention on behalf of the appellants and the Special Land Acquisition Officer that when there is no limitation prescribed, Article 137 of the Limitation Act would come in picture and within three years from the date of cause of action, the applications could have been made. It is true that under sub section (3) of sec.35 of the Act, no limitation is prescribed. However, that does not mean that the application for reference can be made at any time. Article 137 of the Limitation Act provides that when there is no limitation prescribed or provided, three years would be the limitation and from the date of cause of action within three years, an aggrieved person can initiate proceedings. The reference court has misinterpreted the provisions of Sec.35 of the Act. While considering the submissions with regard to the limitation, the reference court has held that as the entire land acquisition proceedings and the award are null and void, Article 137 of the Limitation Act (reference court has considered sec.137 of the Limitation Act wrongly) would not be applicable, more particularly when the Collector has failed to perform the duty cast upon him, making the reference to the reference court as provided under sub section (3) of section 35 of the Act. As stated above, such a findings and the observations of the Reference Court are perverse and illegal. As held by us, there was no dispute with regard to sufficiency of the possession raised by the claimants at the relevant time when the award was declared, therefore, there was no occasion for the Collector to refer the dispute to the reference court and we have also held that the reference applications are not maintainable. Even otherwise, assuming that it was the duty of the Collector to refer the dispute to the reference court and when the Collector failed to perform his duty, in that case also, the claimants are required to initiate appropriate proceedings within reasonable time, as there is no time limit prescribed under the Act. Certainly the claimants cannot submit the applications and/or raise the dispute after a period of 21 years. Thus, on the ground of delay and laches the reference applications were not maintainable. As such when the applications were submitted after a period of 21 years raising dispute with regard to adequacy of the compensation awarded in the year 1980, the Special Land Acquisition Officer, ought not to have referred the dispute to the reference court. As such the Special Land Acquisition Officer himself has committed an error and/or acted arbitrarily in referring the dispute to the reference Court after a period of 21 years".
10. Learned counsel for the original claimants, has not been able to point out that the aspect of Page 5 of 6 C/FA/4421/2008 JUDGMENT limitation has been examined by the Reference Court. Learned counsel for the original claimants has no objection, if the matter is remanded back for consideration afresh.
11. Accordingly, this group of appeals are partly allowed. The impugned common judgment and award dated 17.04.2008 rendered in Land Acquisition Reference Case Nos.382 of 2001 to 385 of 2001 by learned Principal District Judge, Mehsana is hereby quashed and set aside. The matters are remanded back to the concerned Reference Court for consideration afresh in accordance with law without in any manner influenced by this common judgment and order. The Reference Court shall give priority to the present references as References are of the year 2001 and shall endeavour to dispose of the same as expeditiously as possible, preferably within a period of two years from the date of receipt of this common judgment and order. Registry shall send back the record and proceedings to the Trial Court forthwith.
(R.M.CHHAYA, J.) Suchit Page 6 of 6