Gujarat High Court
General Manager vs Special Land Acquisition Officer & on 25 April, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/FA/1331/2000 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1331 of 2000
With
FIRST APPEAL NO. 1333 of 2000
TO
FIRST APPEAL NO. 1334 of 2000
==========================================================
GENERAL MANAGER, O.N.G.C.....Appellant(s)
Versus
SPECIAL LAND ACQUISITION OFFICER & 1....Defendant(s)
==========================================================
Appearance:
MR RAJNI H MEHTA, ADVOCATE for the Appellant(s) No. 1
MR JAYESH M PATEL, ADVOCATE for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 25/04/2017
COMMON ORAL ORDER
1. Heard learned advocate Mr. Ajay R. Mehta for the applicant and learned advocate Mr. A. V. Prajapati for the respondents.
2. These appeals at the instance of Oil and Natural Gas Corporation, the Acquiring Body, under section 54 of the Land Acquisition Act read with section 96 of Civil Procedure Code are against the judgment and award dated 7.9.1999 passed by learned Assistant Judge, Mehsana in Land Acquisition Reference Nos.2805 to 2808 of 1993.
2. The State had acquired certain land on temporary basis of the original claimants under Page 1 of 7 HC-NIC Page 1 of 7 Created On Wed Aug 16 06:24:07 IST 2017 C/FA/1331/2000 ORDER section 35 of the Land Acquisition Act, 1894. After following procedure, the Land Acquisition Officer vide his order awarded compensation at the rate of Rs.0.90/- per sq.mtr. per year. Feeling aggrieved by the said decision, the claimants filed references before the learned Assistant Judge, Mehsana claiming additional rental compensation at the rate of Rs.7/- per Sq. Mtr. and further crop compensation. The learned Assistant Judge awarded additional compensation at the rate of Rs.1.80/- per sq.mtr. per year and further awarded 20% additional crop compensation with interest @ 9% from the date of taking possession till one year and thereafter @ 15% p.a. as per impugned award. It is against the said awards that the present appeals have been filed.
3. Learned Advocate for the appellant submitted that the issue involved in these appeals is squarely covered by the ratio laid down 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 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 Page 2 of 7 HC-NIC Page 2 of 7 Created On Wed Aug 16 06:24:07 IST 2017 C/FA/1331/2000 ORDER 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 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 Page 3 of 7 HC-NIC Page 3 of 7 Created On Wed Aug 16 06:24:07 IST 2017 C/FA/1331/2000 ORDER 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 non-est 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 ONGC-acquiring body as trespasser that too without framing any issue.
[vii] The reference court has no jurisdiction toward compensation by way of mesne profit declaring 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 issue of limitation and other questions as set out in the aforesaid judgment. In that view of the above, the Reference Court has to reconsider the Page 4 of 7 HC-NIC Page 4 of 7 Created On Wed Aug 16 06:24:07 IST 2017 C/FA/1331/2000 ORDER issue in light of the ratio laid down in the aforesaid judgment. This proposition is not disputed by the learned Advocate for the respondents.
5. However, in view of the decision in the case Patel Govindbhai 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 becomes 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.
6. 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(3-A), 23(1-A), 28 and 34 are not applicable to rental compensation.
7. 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 Page 5 of 7 HC-NIC Page 5 of 7 Created On Wed Aug 16 06:24:07 IST 2017 C/FA/1331/2000 ORDER also required to be noted that section 34 makes provision for the rate of interest payable in case of permanent acquisition, while sections 35, 36 & 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 Vs. Special Land Acquisition Officer and Anr. Reported in 2006(2) GLR 1152.
8. In view of above facts and circumstances, the appeals needs to be partly allowed. Considering the fact that so far as temporary acquisition is concerned, it is for the limited purpose of three years from the actual date of acquisition and not thereafter. If at all the land owners have any grievance regarding possession after such period, then, they may initiate appropriate proceedings, but there cannot be a compensation in the form of rent and thereby, there cannot be an award so as to direct the appellant to pay rent for unlimited period. To that extent, the appeals need to be allowed.
9. Similarly, so far as additional compensation @ 20% under the head of standing crop is concerned, it is not applicable in case of temporary acquisition and similarly, interest @ 15% cannot be awarded after the period of one year from the date of acquisition, since acquisition is of temporary in nature.Page 6 of 7
HC-NIC Page 6 of 7 Created On Wed Aug 16 06:24:07 IST 2017 C/FA/1331/2000 ORDER
10. In view of such facts and circumstances, these appeals are allowed, whereby, though the award enhancing the rate of rent with 9% is confirmed, the remaining part of the award is hereby quashed and set-aside, making it clear that the appellants have not to pay 15% interest after one year and similarly, the appellants have not to pay 20% more compensation as per the impugned order.
11. Thereby, original claimants are entitled to the amount of rent @ Rs.2.70 per sq.mtr. per year (an additional amount by way of rent at the rate of Rs.1.80 per sq.mtr.) with interest @ 9% p.a. from the date of taking possession for the period of three years.
(S.G. SHAH, J.) binoy Page 7 of 7 HC-NIC Page 7 of 7 Created On Wed Aug 16 06:24:07 IST 2017