Gujarat High Court
Patel Mohanlal Ishwarbhai Thro Poa ... vs State Of Gujarat & 2 on 14 August, 2015
Author: Jayant Patel
Bench: Jayant Patel, S.G.Shah
C/SCA/1865/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1865 of 2013
With
SPECIAL CIVIL APPLICATION NO. 12425 of 2015
With
CIVIL APPLICATION NO. 8171 of 2015
In
MISC. CIVIL APPLICATION NO. 1162 of 2015
With
MISC. CIVIL APPLICATION NO. 1162 of 2015
In
SPECIAL CIVIL APPLICATION NO. 1865 of 2013
With
MISC. CIVIL APPLICATION NO. 3185 of 2014
In
CIVIL APPLICATION NO. 11999 of 2014
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PATEL MOHANLAL ISHWARBHAI THRO POA HASMUKHBHAI G PATEL &
2....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR JV VAGHELA, ADVOCATE for the Petitioner(s) No. 1 3
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR RITURAJ M MEENA, ADVOCATE for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1 3
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE S.G.SHAH
Date : 14/08/2015
ORAL ORDER
(PER:HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL)
1. As all applications and main Special Civil Applications are interconnected, they are being considered simultaneously.
2. We have heard Mr. Shelat for Mr.Vaghela for the original petitioners (hereinafter referred to as Page 1 of 14 HC-NIC Page 1 of 14 Created On Thu Aug 20 23:56:17 IST 2015 C/SCA/1865/2013 ORDER the "land owners") and we have also heard Mr. Meena, learned counsel for ONGC and its officers (hereinafter referred to as "ONGC").
3. We may record that initially, the land in question was taken over with the consent of the owners on rental basis by ONGC for the purpose of excavation of the oil by way of temporary acquisition. However, thereafter, the said position continued beyond the outer limit of the temporary acquisition. Therefore, the owner of the land preferred SCA No.1865/13 for the relief inter alia to declare the action of the ONGC in retaining the oil well and machinery over the land in question as illegal and it was prayed that the ONGC be directed to remove their oil wells, pipes, etc. from the land in question. This Court, after hearing both the sides, on 30.04.2013, passed the following order "1. We have heard Mr.Shelat, learned Counsel appearing with Mr.Vaghela for the petitioners, Mr.Rakesh Patel, learned AGP for respondents No.1 and 2 and Mr.Meena, learned Counsel for respondent No.3 ONGC.
2. It is an admitted position that the temporary acquisition of the land in question has expired long back. Once the temporary acquisition has come to an end, unless there is any Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the Act) with urgency applied under Section 17 of the Act, it is obligatory on the part of the Body, who had occupied the land under temporary acquisition to vacate the property of the Page 2 of 14 HC-NIC Page 2 of 14 Created On Thu Aug 20 23:56:17 IST 2015 C/SCA/1865/2013 ORDER citizen. In the present case, after the expiry of the temporary acquisition under Section 35 of the Act, Notification under Section 4 of the Act was published on 6.8.2009 and Notification under Section 6 was published on 4.3.2010, but the pertinent aspect is that there is no urgency declared under Section 17 of the Act and even after the expiry of two years from the date of the last publication of Notification under Section 6 of the Act, the award has not been declared within two years therefrom. The Special Land Acquisition Officer, as per the letter dated 17.4.2013, has communicated in writing to ONGC that the proceedings under Section 11 of the Act have lapsed and fresh proceedings after approval will be initiated.
3. The aforesaid prima facie shows the manner and mode in which the proceedings under the Act have been pursued by the Special Land Acquisition Officer as well as the concerned authority of the State Government in undertaking the process of acquisition under the Act. However, so far as respondent No.3 and its officers are concerned, the have also not pursued the matter well in time in order to see that the process under Section 11 of the Act for passing award could be completed well in time.
4. Be that as it may, the fact remains that as on today, the proceedings under the Act have lapsed. Consequently, there could be no authority on the part of respondent No.3 to continue to occupy the property of the citizen. It is hardly required to be stated that as per the provisions of Article 300A of the Constitution, no citizen can be deprived of the property without due process of law. As on today, there is no authority in law shown to this Court by the learned Counsel appearing for respondents, which may support the authority of respondent No.3 to Page 3 of 14 HC-NIC Page 3 of 14 Created On Thu Aug 20 23:56:17 IST 2015 C/SCA/1865/2013 ORDER continue to occupy the property of the petitioners.
5. It was submitted by Mr.Meena, learned Counsel for respondent No.3 that the well over the land is already dug and there are pipes inside the oilwell having value of crores of rupees and, therefore, even if this Court is inclined to issue prohibitory direction, some reasonable time may be given to respondent No.3 to vacate the same or in alternative, till lawful authority is conferred upon ONGC to continue to occupy the land. As on today, there is no authority and respondent No.3 is also not in a position to show any authority under the law, permitting occupation of the property in question. However, keeping in view the aspect that the oilwell exists as stated by respondent No.3 and there may be material lying inside the oilwell, a reasonable time may be required to be given, but with the observations that for the unauthorized occupation by respondent No.3 after the expiry of the period of temporary acquisition till today, they may be required to pay compensation, may be rental or otherwise at a later stage. The total area under acquisition is admeasuring 14616 sq. mtrs., located at Koteshwar Taluka, Gandhinagar and taking into consideration, lease rent as mentioned in the documents at AnnexureB at Rs.1,85,000/ per year, the approximate amount of compensation deserves to be deposited by ONGC in the event the ONGC is desirous to continue to occupy the land for some time, so as to stop its activities or otherwise to get the lawful authority for such purpose.
6. Hence, Rule.
7. By adinterim order, it is directed that within a period of one month from today, ONGC shall remove all its belongings over the land in question and shall Page 4 of 14 HC-NIC Page 4 of 14 Created On Thu Aug 20 23:56:17 IST 2015 C/SCA/1865/2013 ORDER discontinue to utilize the land after the expiry of the period of one month with the further directions that the amount of Rs.50,000/ shall be deposited by way of compensation of the petitioners with this Court. It is also observed that it would be lawful on the part of the petitioners to prohibit the officers or agents or servants of ONGC from entering the land in question.
8. S. O. to 8.7.2013 for reporting compliance and further orders."
4. The aforesaid order was carried before the Apex Court in the proceedings of SLP (C) Nos.22893 22894/13 wherein interim stay order was initiall granted, but subsequently, the said SLPs were withdrawn with a liberty to file appropriate review petition. Thereafter, the review application has been filed by ONGC. Thereafter, vide order dated 16.10.2014 in Civil Application No.11999/14 with MCA (St) No.3079/14, this Court had passed the following order "1. We have heard Mr. Mihir Joshi with Mr. Meena for the applicant, Mr. JV Vaghela for respondents no.1 to 3original petitioners and Mr. Antani, learned AGP for respondents no.4 and 5.
2. As such, there is a delay of 503 days in preferring review application coupled with the aspect that the review application has been filed as per the observations made in the order passed by the Apex Court in the SLP, wherein SLP was withdrawn with a view to file review application.
3. Two principal contentions have been raised, one is that there is huge reservoir of oil below the land in question and if Page 5 of 14 HC-NIC Page 5 of 14 Created On Thu Aug 20 23:56:17 IST 2015 C/SCA/1865/2013 ORDER ONGC is compelled to vacate the land, the reservoir may go waste and the possibilities of some blast or damage to the nearby agricultural land by spreading over of the oil etc. cannot be ruled out. The another is that even after the original petitioners purchased the land in the year 2003, one Mr. Dave Pradyuman, petitioner no.3 has realised some rent whereas original petitioners no.1 and 2 have not realised the rental amount and the details are on page 54 at Annexure E. It is an admitted position that there is no agreement, but the contention is sought to be raised on the implied permission.
4. As per the order passed by this Court on 30.04.2013, it was found that there is no authority to continue over the land and the ONGC should vacate the land in question. It was submitted that therefore the present review application and also the application for condonation of delay.
5. It is undisputed position that there are no acquisition proceedings undertaken for acquiring of the land. The rental compensation is also not accepted by majority of the petitioners and further in absence of any agreement or in absence of any conclusion of the land acquisition proceedings by awarding and vesting of the land, ONGC will have no power or authority to continue. However, as the ground of wastage of the oil reservoir or damage to the nearby area is contended, the Court may consider the aspects but at that time, we need to keep in mind the rights of the owner of the land in the property and the deprivation of the enjoyment of the property. If the acquisition is to take place or in any case compensation is to be paid as per The Right to Fair Compensation and Trtansparency in Land Acquisition, Rehabilitiation and Resettlement Act, 2013, the compensation may be in any case as per the Jantri valuation plus 100% solatium and Page 6 of 14 HC-NIC Page 6 of 14 Created On Thu Aug 20 23:56:17 IST 2015 C/SCA/1865/2013 ORDER interest etc.
6. It has been stated at bar that the present Jantri valuation of the land in question is about Rs.4,000/ to Rs.5,000/ sq. yard, though market value may be more. The area involved is about 10,000 sq. yard. The market value, if considered even as per the Jantri, it would amount to Rs.4,000/ and the interest at the rate of 10%, so as to consider rental amount may be about Rs.3.33 lakhs per month, yearly Rs.40 lakhs. After the order dated 30.04.2013, the fact remains that ONGC has not vacated the land and has come out with the present review application. Therefore, even if ONGC is desirous to continue to occupy the land, it cannot be unconditional, but the amount equivalent to 10% interest on yearly basis should be made available to the original land owners until the land acquisition proceedings, if any are initiated and concluded or until this Court passes further order after examining the report of the expert on the aspects of reservoir of the oil or probable damage to the nearby area.
7. Hence, notice returnable on 21.11.2014. The operation of the order dated 30.04.2013 shall remain stayed on the condition that the applicant deposits with this Court the amount of Rs.60 lakhs on or before 10.11.2014 and further continues to pay the amount at the rate of Rs.3.30 lakhs per month from November, 2014 onwards, proportionately 1/3rd, to each of the petitioners until further orders. After the amount is deposited, the original petitionersrespondents no.1 to 3 herein shall be at the liberty to withdraw the amount. It is observed that if there is failure to comply with the condition, the interim relief shall automatically stand vacated. The present order shall be subject to further orders which may be passed by this Court in the present application as Page 7 of 14 HC-NIC Page 7 of 14 Created On Thu Aug 20 23:56:17 IST 2015 C/SCA/1865/2013 ORDER well as the main review application."
It further appears that thereafter, this Court considered the said aspect of review application and on 21.11.2014, and following order was passed "Mr. Joshi, learned Senior Counsel appearing with Mr.Meena seeks time to produce the report of the expert. Mr.Joshi submitted that by stay of the earlier order, the officers of ONGC are in dilemma as to whether they would be in a position to utilise the land for extraction of oil or not since the amount is ordered to be deposited by this Court for subsequent period also.
As such, the principal direction was to remove all belongings of ONGC from the land in question and discontinuation of the use was a consequential direction. Therefore, when the order is stayed, it may mean that ONGC may not require to remove all its belongings over the land by vacating the land, but thereby it cannot be said that ONGC will be in a position to utilise the land for extraction of oil or otherwise since the possession of ONGC as per the order dated 30.04.2013 is found to be unlawful. Since ONGC has contended that the closure of oil well may adversely affect the adjoining land owners and natural resources, by way of interim measure, stay has been granted of the earlier order. Such would mean that if the condition is complied with, ONGC may not require to remove all its belongings, but the commercial activity over the land is not permitted until the Court considers the main aspect in the review application.
S.O. to 05.12.2014.
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5. Pending the said application, ONGC came out with the contention that the calculation of the amount of rental payment is on incorrect information and therefore, Civil Application No.8205/15 was preferred for appropriate direction and this Court on 24.07.2015, had passed the following order "1. The applicantoriginal respondent has preferred the present application for appropriate direction for refund of the excess amount of Rs.20,70,234/ with accrued interest.
2. We have heard Mr. Mihir Joshi, learned senior counsel with Mr. Meena, learned counsel for the applicant, Mr. Shelat, learned counsel with Mr.Vaghela, learned counsel for respondents no.1, 2 and 3 and Mr. Patel, learned AGP for respondents no.4 & 5.
3. The basis of the present application is that when this Court passed the earlier order dated 16.10.2014 in CA No.11999/14, the jantri valuation was stated of Rs. 4,000/ and the Court further considered the area as of 10,000/ sq. yard. Whereas, the jantri valuation is on the basis of square metre. It is stated that the jantri valuation of the land in question is Rs.3,125/ per sq. metre and the exact area is of 9813 sq. metre. At AnnexureC, the detailed calculation has been given and as per the said document, if the payment is adjusted, the applicant will be entitled to get refund of Rs.20,70,234/.
4. However, Mr.Shelat, learned counsel appearing for the private respondents submitted that the last cheque received is of March 2015 and thereafter, no cheque is Page 9 of 14 HC-NIC Page 9 of 14 Created On Thu Aug 20 23:56:17 IST 2015 C/SCA/1865/2013 ORDER received.
5. As per Mr. Meena, the amount has already been paid uptil July 2015.
6. Under the circumstances, the applicant will be at the liberty to get the adjustment of the amount which has remained unpaid pursuant to the earlier order dated 16.10.2014 and if the amount is already paid, the adjustment shall be made accordingly in future rental payment or any further order passed by this Court. The calculation shall be at Rs.2,55,547/ per month. Thereafter, if any amount is further to be refunded by the private respondents no.1 to 3, the same may be adjusted in the future monthly amount of Rs.2,55,547/ per month.
7. It is also observed that the earlier order dated 16.10.2014 shall stand modified to the aforesaid extent and the direction given for monthly rental of Rs.3,33,000/ shall stand reduced to Rs.2,55,547/ per month and subject to the adjustment of the amount already paid in excess as observed and directed hereinabove.
8. The present application shall stand disposed of accordingly."
6. It may be recorded that simultaneously, ONGC also preferred Civil Application No.8171/15 contending that the acquisition proceedings are already undertaken and the draft award is also prepared and therefore, the State be directed to complete the acquisition proceedings within the time frame and it was also prayed that the interim order dated 16.10.2014 be modified and the exemption be granted to the Corporation to pay the rental Page 10 of 14 HC-NIC Page 10 of 14 Created On Thu Aug 20 23:56:17 IST 2015 C/SCA/1865/2013 ORDER amount and ONGC be directed to explore oil on the condition that the amount of draft award is deposited with this Court. The copy of the draft award produced by the ONGC shows that the compensation is assessed at Rs.8,34,20,000/ for the total area of land.
7. We would have considered the aspect of directing the State to complete the land acquisition proceedings within some stipulated time limit, however, on behalf of the land owners, it was brought to our notice that Special Civil Application No.12425/13 has been preferred by the land owners challenging the acquisition proceedings and there are various contentions to be considered in the said matter and therefore, this Court may not direct the land acquisition authority to conclude the acquisition proceedings.
8. As per the last order passed by this Court, as Special Civil Application No.1865/13 together with the Review Application therein as well as Special Civil Application No.12425/13 were before different Benches of this Court, in order to maintain the uniformity in the orders of this Court, it was observed that the matters be placed before one Bench of this Court. Under the circumstances, both the main Special Civil Applications are listed before us together with the review application.
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9. The aforesaid situation shows that on the one hand, the acquisition proceedings are not concluded and on account of noncompletion of the acquisition proceedings and the expiry of the period of temporary acquisition, this Court directed the ONGC to handover the possession, which of course is stayed pending the review application on payment of the rental amount as ordered by this Court as per the above referred order. However, the fact remains that the possession of the land in question is not handed over by ONGC to the land owners and it also appears that the acquisition proceedings are initiated but not concluded. The contention of the ONGC is that if oil is not permitted to be extracted within reasonable time, ONGC is not only made to make the payment for no work at all, but at the same time, there may be other complications of losing oil for all time to come.
10. Whereas, Mr. Shelat, learned counsel appearing for the land owners contended that if the land is not acquired in accordance with law, the owners will have a right to enjoy the land which is being deprived of.
11. Considering the facts and circumstances, we find that as the proceedings are already initiated and the matter is already at the stage of draft award, the order passed in main SCA No.1865/13 dated 30.04.2013 deserves to be recalled, but such recalling of the order if is made Page 12 of 14 HC-NIC Page 12 of 14 Created On Thu Aug 20 23:56:17 IST 2015 C/SCA/1865/2013 ORDER unconditional, the land owners would be deprived of their right to enjoy the property. At the same time, if ONGC is desirous to utilise the land until the Land Acquisition proceedings are concluded by extraction of the oil, the reasonable return of the market value of the property should be made available to the land owners. As it has been stated on behalf of the ONGC that it is ready to deposit the amount of compensation as per the draft award, we find that such by way of an interim measure can be permitted and ONGC may be permitted to extract the oil by utilisation of the land in question. At the same time, the interest on the amount which may be deposited may be made available to the owners of the land.
12. As out of the amount of Rs.8,34,20,000/ for the total land under acquisition of 12416 sq. mtr., the land of the petitioners comprised of 10016 sq.mtr., the approximate amount of compensation for the land of the petitioners would be Rs.6.72 crore. Hence, the earlier order dated 30.04.2013 in Special Civil Application No.1865/13 is reviewed and recalled on the condition that the ONGC deposits the amount of Rs.6.72 crores with this Court within eight weeks from today and upon deposit of the said amount with this Court, ONGC shall be at the liberty to use the land subject to the compliance of other laws for excavation of the oil. However, until the amount is deposited, the interim compensation of Rs.2,55,547/ per Page 13 of 14 HC-NIC Page 13 of 14 Created On Thu Aug 20 23:56:17 IST 2015 C/SCA/1865/2013 ORDER month shall continue to be paid. It is also observed that if the aforesaid amount is not deposited, ONGC will have no authority to extract the oil. If the amount is so deposited, the same shall be invested by the office in the Fixed Deposit Receipt initially for a period of two years or until further orders and interest, as may accrue from time to time, shall be paid to the owner of the land as per their inter se share.
13. All Misc. Civil Applications as well as Civil Application shall stand disposed of with the further observation that the aforesaid interim arrangement as per the order shall continue to remain in operation subject to any orders, which may be passed by this Court in main Special Civil Application No.1865/13 with Special Civil Application No.12425/15.
(JAYANT PATEL, ACJ.) (S.G.SHAH, J.) bjoy Page 14 of 14 HC-NIC Page 14 of 14 Created On Thu Aug 20 23:56:17 IST 2015