Gujarat High Court
General Manager vs Poonamchand Hiralal (Since Dec'D Thro' ... on 15 June, 2015
Bench: Ks Jhaveri, G.B.Shah
C/FA/53/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 53 of 2009
TO
FIRST APPEAL NO. 55 of 2009
With
CIVIL APPLICATION NO. 94 of 2009
In
FIRST APPEAL NO. 53 of 2009
TO
CIVIL APPLICATION NO. 96 of 2009
In
FIRST APPEAL NO. 55 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
====================================
1 Whether Reporters of Local Papers may be allowed to YES
see the judgment?
2 To be referred to the Reporter or not? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the constitution of India,
1950 or any order made thereunder?
====================================
GENERAL MANAGER, OIL & NATURALGAS CORPORATION
LIMITED....Appellant(s)
Versus
POONAMCHAND HIRALAL (SINCE DEC'D THRO' HEIRS & LRS &
1....Defendant(s)
Page 1 of 8
C/FA/53/2009 JUDGMENT
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Appearance:
MR AJAY R MEHTA, ADVOCATE for the Appellant(s) No. 1
MR DHAWAN JAYSWAL, AGP for the Defendant(s) No. 2
MR YATIN SONI, ADVOCATE for the Defendant(s) No. 1.1 1.3
====================================
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 15/06/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. These appeals, at the instance of Oil and Natural Gas Corporation, the Acquiring Body, under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act" for brevity) read with Section 96 of Civil Procedure Code, 1908, are against the common judgment and award dated 12/04/2007 passed by the learned Principal Senior Civil Judge, Gandhinagar in Land Acquisition Reference Nos. 12 of 2004 to 14 of 2004.
2. Brief facts of the cases on hand are that, the appellant had acquired certain land on temporary basis of the original claimants under Section 35 of the Act. After following procedure, the Land Acquisition Officer vide award dated 31/08/1987 awarded annual rent compensation at the rate of Page 2 of 8 C/FA/53/2009 JUDGMENT Rs.0.70ps. per sq. mtr. per annum. Feeling aggrieved by the said decision, the claimants filed References before the Reference Court claiming Rs.20/ per sq. mtr. per annum. The Reference Court partly allowed the said References and ordered to pay additional amount of rental compensation @ Rs.10.45 per sq. mtr. (Rs.11/15 (minus) Rs.0.70) per year over and above awarded by the Special Land Acquisition Officer from the date of taking the possession with interest @ 9% per annum on the additional amount of rent till realization and also to go on paying the increased rate of rent as per that award and hence, present appeals.
3. Mr. Mehta, learned counsel for the appellant, submitted that the issue involved in these appeals is squarely covered by the decision in the case of Oil & Natural Gas Corporation Ltd. Vs. Sankarji Hemaji & Anr reported in [2008] 17 GHJ (523). The operative part of the said Judgment reads as under:
"41. Similarly, event he conduct and the action of the then Special Land Acquisition Officer, who has referred the references applications in more than 100 Page 3 of 8 C/FA/53/2009 JUDGMENT cases to the reference court, though the applications for reference were filed after a period of more than 20 years, is also required to be considered seriously at the hands of Government. Under the circumstances, Chief Secretary, Revenue Department is directed to hold necessary inquiry against the concerned Special Land Acquisition Officer with regard to his conduct and actions. Registry is directed to communicate this order to the Chief Secretary, Revenue Department, State of Gujarat for compliance.
42. For the reasons stated hereinabove,all the appeals succeed and are allowed with costs which is quantified at Rs.5000/ (Rupees Five Thousand only) per each appeal. The impugned common judgment and award dated 15.10.2005 passed by the learned Principal Senior Civil Judge, Mehsana (Mr. J.R. Shah) inland Reference Case Nos.3780 to 3784 of 2003 is hereby quashed and set aside and it is held that:
[i] The reference applications submitted by the original claimants were not maintainable.
[ii] The reference applications were required to be dismissed on the ground of limitation considering Article 137 of the Limitation Act. In the alternate, the same were required to be dismissed on the ground of Page 4 of 8 C/FA/53/2009 JUDGMENT delay and laches.
[iii] The reference court has no jurisdiction to decide any other question except the difference as to sufficiency of compensation in a reference under sec.35(3) of the Act.
[iv] The reference court has no jurisdiction to decide any other question except the difference as to sufficiency of compensation in a reference under section 35(3) of the Act.
[v] The reference court has no jurisdiction to declare acquisition proceedings and the award declared by the Special Land Acquisition Officer under sec.35(3) of the Act as illegal and/or nonest in a reference under section 35(3) of the Act.
[vi] The reference court has no jurisdiction to declare possession of the acquiring body as illegal and/or unauthorized and consequently the reference court has no jurisdiction to declare the ONGCacquiring body as trespasser that too without framing any issue.
[vii] The reference court has no jurisdiction toward compensation by way of mesne profit declaring Page 5 of 8 C/FA/53/2009 JUDGMENT compensation of the acquiring body as illegal and unauthorized.
[viii] The reference court has also no jurisdiction to award statutory benefits and or interest, as awarded by the reference court, as if the acquisition proceedings is a permanent acquisition.
[ix] The reference court has no jurisdiction to determine the dispute with regard to sufficiency of the compensation beyond the period of three years from the date of taking the possession.
[x] The Reference Court has no jurisdiction to restore the possession of the land to the original owners while deciding the reference under sec.35(3) of the Act."
4. Admittedly the Reference Court has not considered the question of jurisdiction and also the limitation and other questions as set out in the aforesaid judgment. In that view of the matter the Reference Court has to reconsider the issue in light of the ratio laid down in the aforesaid judgment. This proposition is not disputed by the learned counsel for the respondents. Page 6 of 8
C/FA/53/2009 JUDGMENT 4.1 However, in view of the decision in the case Patel Govindbhai Ambaram Vs. Special Land Acquisition officer, reported in 2006(2) GLR 1152, the contention that the award of interest from the date on which the annual rent became payable till the date of actual payment cannot be accepted. In the said decision it is held that the interest is payable from the date on which the annual rent became payable till the date of actual payment. 4.2 In the case of State of Maharashtra Vs. Maimuma Banu, reported in (2003) 7 SCC 448, it is held that on the facts of the case, though landowners are not legally entitled, yet on equitable grounds, interest at the rate of 6% was granted and that provisions of Sections 17(3A), 23(1A), 28 and 34 are not applicable to rental compensation.
4.3 At this stage it is also required to be noted that in the case of Brij Behari Vs. State of UP reported in AIR 1986 SC 1895 it was held that when possession had been taken under Section 35 of the Act, it is not a case of acquisition under Part II thereof and that in case of temporary occupation of land, solatium is not payable. It is also required to be noted that Section 34 makes provision for Page 7 of 8 C/FA/53/2009 JUDGMENT the rate of interest payable in case of permanent acquisition, while Sections 35, 36 and 37 provide for the rate of interest payable in case of temporary acquisition. This has been clearly distinguished in the case of Patel Govindbhai Ambaram (supra).
5. In the premises aforesaid, these appeals are allowed. The judgment and award impugned in these appeals are quashed and set aside. The matters are remanded to the Reference Court for fresh consideration in light of the above cited judgments viz. in Oil & Natural Gas Corporation Ltd, State of Maharashtra, and in Patel Govindbhai Ambaram. No order as to costs. In view of main First Appeals are allowed, no orders in Civil Applications and the same are disposed accordingly.
[ K. S. Jhaveri, J. ] [ G. B. Shah, J. ] hiren Page 8 of 8