Gujarat High Court
General vs Thakor on 4 August, 2008
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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FA/302720/2007 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3027 of 2007
To
FIRST
APPEAL No. 3028 of 2007
=========================================================
GENERAL
MANAGER - Appellant(s)
Versus
THAKOR
BABUJI DHARMIRJI & 1 - Defendant(s)
=========================================================
Appearance
:
MR
RR MARSHALL for
Appellant(s) : 1,
None for Defendant(s) : 1,
GOVERNMENT PLEADER
for Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 04/08/2008
ORAL
ORDER
1. These appeals are directed against the judgment and award dated 21.09.2005 passed by the learned Principal Sr. Civil Judge, Mehsana in Land Reference Cases No. 5123 of 2003 to 5124 of 2003 whereby, the said reference cases were partly allowed.
2. The appellant State had acquired certain land belonging to the original claimants on temporary basis under the provisions of Section 35 of the Land Acquisition Act, 1894. After following due procedure, the Land Acquisition Officer vide his order dated 10.02.1984 awarded compensation by way of rent @ Rs.0.45 per sq. metre. Feeling aggrieved by the said order, the claimants filed references before the Court below claiming additional rental compensation. The reference Court partly allowed the cases by enhancing the amount of compensation. It is against the said award, 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 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 herein above, 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 latches.
[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 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 aspects of jurisdiction as also 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 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 grant 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 interest is payable from the date on which the annual rent became payable to 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 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 the premises aforesaid, these appeals are allowed. The judgment and award impugned in these appeals are quashed and set aside. The appeals stand disposed of accordingly. No order as to costs.
[K.S. JHAVERI, J.] Pravin/* Top