Gujarat High Court
Oil & Natural Gas Corporation Limited vs Moghiben Wd/O. Jamtaji on 17 July, 2013
Author: G.R.Udhwani
Bench: G.R.Udhwani
OIL & NATURAL GAS CORPORATION LIMITED....Applicant(s)V/SMOGHIBEN WD/O. JAMTAJI HIRAJI SINCE DECE. THRO.' L/H. C/CA/7251/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION NO. 7251 to 7255 of 2013 In FIRST APPEAL NO. 1888 to 1892 of 2013 With CIVIL APPLICATION NO. 7259 of 2013 In FIRST APPEAL NO. 1893 of 2013 With CIVIL APPLICATION NO. 7260 of 2013 In FIRST APPEAL NO. 1894 of 2013 ================================================================ OIL & NATURAL GAS CORPORATION LIMITED....Applicant(s) Versus MOGHIBEN WD/O. JAMTAJI HIRAJI SINCE DECE. THRO.' L/H. & 5....Respondent(s) ================================================================ Appearance: MR AJAY R MEHTA, ADVOCATE for the Applicant(s) No. 1 MR KP RAVAL, AGP for the Respondent(s) No. 6 MR.JAINISH P SHAH, ADVOCATE for the Respondent(s) No. 1.1 - 1.4 , 2 - 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 25/11/2013 ORAL ORDER
1. By an order dated 17.07.2013 the group of appeal being First Appeal Nos.1888 of 2013 to 1894 of 2013 were admitted and Rule was issued on Civil Applications. A common question of law as to whether the Reference Court was empowered to pass orders in relation to interest at the rate of 15% as provided under Section 28 of the Land Acquisition Act, 1894 ( hereinafter referred to as the Act ) as also solatium at the rate of 30% of the rental compensation has been raised in the First Appeals. Reliance is placed upon State of Maharashtra and others Vs. Maimuma Banu and others [ (2003) 7 SCC 448 ] and Brij Behari Sahai Vs. State of Uttar Pradesh [ (1986) 3 SCC 564 ] to submit that no jurisdiction was vested with the Reference Court to make such award in case of temporary acquisition under Section 35 of the Act.
2. It is the case of the respondent that the applicant s use of the land beyond the period of three years as permissible under Section 35 of the Act was illegal, and to compensate the respondent, appropriate orders have been passed by the Reference Court while hearing the reference under Section 35(3) of the Act.
3. Considering the rival submission, concededly, no reference has been made under Section 37 of the Act for claiming compensation on the ground of difference as to condition of the land in question during the period of temporary acquisition. That being the position, prima facie, such aspect could not have gone into by the Reference Court under Section 35(3) of the Act inasmuch as the jurisdiction under the said sub-section is available in respect of the sufficiency of compensation or apportionment in the context of temporary acquisition for a period of three years as contemplated under Sub-sec (1) of Section 35 of the Act. Under Section 36 of the Act, inter-alia, the duty of the Collector to compensate arises on expiration of the term of the temporary acquisition only if the damage is caused to the temporarily acquired land during such acquisition, and as per proviso to the said provision, if the land is unfit for use on account of the damages caused to it during the period of temporary acquisition, an application for permanent acquisition can be made, and in case of difference of opinion between the Collector and the person aggrieved as to condition of land after temporary acquisition, Section 37 can be used for appropriate reference for compensation to the competent court.
4. Above being the legal position, prima facie, it appears that by venturing into the grant of solatium at the rate of 30% as also interest at the rate of 15% as above, the Reference Court exceeded its jurisdiction inasmuch as concededly no application under Section 37 was ever made. Learned counsel for the respondent, however, would contend that for illegal use of the land by applicant as also for deteriorated condition of the land during the period of temporary acquisition, by the appellant-applicant, the Reference Court rightly compensated the respondent though the term `solatium may not be appropriate but the Court intended to compensate the respondent. On close scrutiny, this argument fails for the simple reason that even that order could not have been passed in absence of the reference under Section 37 of the Act.
5. Learned counsel for the respondent invited attention of this Court to the decision of State of Maharashtra and others Vs. Maimuma Banu and others (supra) particularly paras 9, 10 and 11, and would contend that the Hon ble Supreme Court acknowledged, on equity, the grant of 6% of interest under the rental compensation. While making the said submission, it appears that the learned counsel lost the attention of the submission made by learned counsel for the applicant that for the period subsequent to temporary acquisition, until the land was retained, the respondent has been compensated by payment of interest at the rate of 9% on the rental compensation fixed in the award. In this view of the matter, even the equitable aspect has been considered by the applicant, and in that view of the matter, no orders as in above case are necessary.
6. In above view of the matter, question being that of inherent lack of jurisdiction/authority of the Reference Court, the impugned order to an extent of grant of 30% solatium and 15% interest as above is required to be stayed. The applications therefore succeed and the impugned order as indicated above shall remain stayed till the First Appeals are heard. Rule is made absolute with no order as to costs.
(G.R.UDHWANI, J.) syed/ Page 5 of 5