GENERAL MANAGER v. ARVINDBHAI PRAHLADBHAI JOSHI & Ors.

Present Appeal is filed by the appellant – acquiring body – original opponent No.2 – ONGC under Section 54 of the Land Acquisition Act challenging the judgment and award passed by the learned Principal Senior Civil Judge, Gandhinagar dated

04.12.2006 in L.A.R. No.64 of 2006 by which the learned Reference Court has partly allowed the aforesaid reference cases directing the appellant to pay additional amount of rental compensation at the rate of Rs.6.60 paise per Sq.Mtr. per year from the date of taking possession with interest at the rate of 9% per annum for the additional amount of rent from the date of rent becomes due till realization and also to go on to pay increased rate of rent as per the decision of the ONGC taken on administrative side from time to time. The appellant is also directed to pay aforesaid amount of rent from the date of taking possession till possession is handed over back to the original claimants – respondents herein.

Private respondents – original claimants FA/24/2008 JUDGMENT (herein after referred to as 'claimants') are the owners of the agricultural lands (herein after referred to as 'lands') at Village – Adalaj. As the land was required for drilling oil – wells, Dy.General Manager, Ahmedabad Project submitted proposal for temporary occupation of the lands. Since, it appeared to the appropriate Government that land was needed for public purpose, said proposal was accepted by it and pursuant thereof exercised powers under Section 35(1) of the Land Acquisition Act (hereinafter referred to as 'the Act') and directed the Collector to procure occupation of the lands. After complying with necessary formalities, the Collector procured occupation of the lands in the month of January / February, 1992. That thereafter, claimants / lands owners were called upon to appear before the Dy.Collector and Special Land Officer (ONGC-Ahmedabad) for determining rental / compensation and declared award under Section 35(2) of the Act on 04.12.1992 declaring rental / compensation at the rate of Rs.1.10 paise per.

Aforesaid case of the claimants was resisted by the original respondents inclusive of the appellants by filing written statement and they denied the averments of the claimants. On behalf of the Special Land Acquisition Officer, objections were

submitted at Ex.10. It was submitted on behalf of the Special Land Officer that rental/compensation awarded to the claimants are neither at low rate nor inadequate in any way. It was stated that Special Land Officer has considered all the relevant factors while fixing rental / compensation. Therefore, it was FA/24/2008 JUDGMENT requested to dismiss the Reference Cases.

On behalf of the appellant – original opponent No.2- ONGC written statement was filed at Exh.9. It was stated that Special Land Officer has unnecessarily referred the cases and therefore, same is not tenable in the eye of law. It was submitted that reference is barred by the principles of res- judicata and estoppel. It was stated that rent awarded by the Special Land Officer is just and proper and based on the contemporaneous evidence and that they cannot be awarded additional compensation without cogent evidence in support of the claim for additional rent. It was submitted that rent is based on yield. Therefore, there cannot be increase at the rate of 10% on the basis of the market value of the land and therefore, it was requested to dismiss the Reference cases. It was submitted on behalf of the appellant that the reference applications are not maintainable and are barred by limitation and/or they are required to be dismissed on the ground of delay and laches. FA/24/2008 JUDGMENT

The Reference Court framed the issues at Exh.11. On behalf of the claimants one – Arvindbhai Prahladbhai Joshi Patel came to be examined at Exh.17. He relied upon the judgment and award passed by the Reference Court in LAR Nos.312/2000 and 313/2000, whereby the Reference Court determined the compensation / rental at the rate of Rs.5.50 per. Sq.Mtr.per year. The certified copies of the said judgment were produced at Exh.15. Though in the examination-in-chief, it was deposed by the witness who was examined on behalf of the claimants that they were earing Rs.50,000/- to Rs.60,000/- per vigha per year after deducing 1/5th expenses and that they were taking three crops a year, in the cross-examination he has admitted that they have not produced any documentary evidence at the time of acquisition of the lands. He also admitted that he has not produced any report of the expert to prove his land are fertile. He also admitted that he was not maintaining books of accounts. He has also admitted in the cross- examination that he has not produced bills of agricultural produce. He has also admitted that he has not produced extract of village form 7/12. On FA/24/2008 JUDGMENT behalf of the original opponent one – Kamlesh Haribhai Goradiya came to be examined at Exh.19. He was working as Special Land Officer – ONGC, Sabarmati. On behalf of the claimants they heavily relied upon the judgment and award passed by the Reference court in another case with respect to lands of Village – Shertha at Exh.15. By relying upon the decision of this Court in the case of Shivlal v/s. Additional Special Land Acquisition Officer reported in (9) GLR 752, it was submitted on behalf of the claimants that as held by this Court in the aforesaid decision while determining compensation similar award passed by the Court or Land Acquisition Officer can be taken into consideration. Accepting the same, Reference Court held that earlier award passed by the Court of 3rd Additional Sr.Civil Judge, in LAR No.312/2000 can be looked into for the purpose of determining actual rent compensation of the acquired lands.

On behalf of the original opponent – appellant, decision of the learned Single Judge of this Court in the case of Oil & Natural Gas FA/24/2008 JUDGMENT Corporation Ltd. V/s. Pandya Prahladbhai Manilal & Ors. reported in 2007(2)GLR 1306 was relied upon in support of their submission that Reference Court has no jurisdiction to determine / award rental/ compensation for the period beyond the period of three years from the date of taking possession. It was also submitted on behalf of the original opponent that rental / compensation with respect to temporary acquisition of the land can be determined only on yield basis and no evidence has been adducted by the claimants to prove agricultural income.

On the basis of the material produced before it, the Reference Court by impugned judgment and award dated 04.12.2006 partly allowed the Land Reference Cases solely relying upon the judgment and award passed by the learned 3rd Addl. Senior Civil Judge, Gandhinagar passed in LAR No.312/2000 dated

29.05.2006 with respect to the lands situated in the village – Shertha by which the learned Judge fixed rental / compensation at Rs.5.50 per Sq.Mtr.per with respect to award of 1988 and in the present case award is passed on 04.12.1992, considering the time FA/24/2008 JUDGMENT gap of about four year between the said awards, the Reference Court held that the claimants would be entitled to 10% price in rise and thus determined market value of the land in question at Rs.6.60 per Sq.Mtr.per year (Rs.5.50 already awarded in LAR Nos.312/2000 + Rs.1.10 paise - 10% price rise for ten months) and considering rental / compensation already paid at Rs.1.10 per. Sq.Mtr., the Reference Court directed the appellant to pay additional compensation at Rs.6.60 paise per Sq.Mtr. Per year from the date of taking possession with interest at 9% per annum for the additional amount of rent from the date of rent becomes due till realization and also to go on to pay increased rent as per the decision taken upon administrative side from time to time.

Being aggrieved and dissatisfied with the impugned judgment and award dated 04.12.2006 passed by the learned Principal Senior Civil Judge, Gandhinagar in Land Reference Cases No.64/2002, the appellant – original opponent No.2 – ONGC has preferred the present appeal. FA/24/2008 JUDGMENT

Learned Advocates appearing on behalf of the respective parties have produced paper book and have taken us to the documentary as well as oral evidence produced and we have gone through the same in detail. We have also called for Record and Proceedings of the respective land reference cases from the learned Reference Court which has been received and we have perused the same. Mr.Ajay Mehta, learned Advocate has appeared on behalf of the respective appellant – ONGC and Mr.A.J.Patel, learned Advocate has appeared on behalf of the respondents – original claimants – land owners.

Learned Advocates appearing on behalf of the appellant – ONGC have vehemently submitted that impugned judgment and awards passed by the learned Reference Court in respective LARs are wholly untenable in law and contrary to the provisions of Section 35 of the Land Acquisition Act. Mr.Mehta, learned Advocate appearing on behalf of the appellant has heavily relied upon two decisions of this Court in the case of Patel Shambhubhai Bhaichanddas v/s. State of Gujarat & Anr. reported in 2007(1)GLR 713 FA/24/2008 JUDGMENT and in the case of Oil & Natural Gas Corporation Ltd. V/s. Pandya Prahladbhai Manilal & Ors. reported in 2007(2)GLR 1306 and relying upon the aforesaid decisions, it is submitted that the Reference Court would not have any jurisdiction to award compensation/ rental for any period beyond three years from the date of taking possession. It is submitted that in the present case, Reference Court has awarded compensation for the entire period which is contrary to the above referred judgments.

29.05.2006. It is submitted that the Reference Court ought to have appreciated that while determining rental / compensation with respect to the temporary acquisition of the land, principles applied for determining compensation for permanent acquisition of land cannot be made applicable. It is submitted that FA/24/2008 JUDGMENT rental / compensation with respect to temporary occupation of the land can be determined only on leading proper evidence with respect to income derived from the lands in question and only on yield basis. It is submitted that the Reference Court has materially erred in adopting principles of determining market value for the purpose of permanent acquisition by granting 10% price rise per year and relying upon the judgment and award passed by the Reference Court produced at Exh.15 with respect to village Shertha. It is submitted that the Reference Court has materially erred in relying upon the decision of this Court in the case of Shivlal (supra).

It is submitted that decision in the case of Shivlal(supra) is with respect to permanent acquisition. It is submitted that fertility of the lands vary from village to village and even land to land. It is submitted that the reference court appreciated that rent value can be based only considering yield and considering it Land Acquisition Officer has rightly awarded Rs.1.10 sq.mts. as market rent. It is submitted that as held by the Hon'ble Supreme Court in the case of State of Maharashtra and FA/24/2008 JUDGMENT Ors. V/s. Maimuma Banu and Ors. reported in 2003(7) SCC 448 and this Court in the case of Patel Shambhubhai (supra), provisions of part III of the land acquisition act would not apply to temporary acquisitions. Therefore, it is submitted that assessment of market value by the reference court is thoroughly untenable in law. It is submitted that even witness who has been examined on behalf of the claimant has deposed and has so admitted in the cross examination that there is no evidence led qua yield to prove the income of Rs.50,000/- to Rs.60,000/- per vigha per year.

Even it is admitted in the cross examination by the claimants that they have accepted the increased rent of compensation from time to time. It is also further submitted that even the appellant – ONGC has increased rent and has paid rent at the rate of Rs.2.50 per Sq.MTr. per annum with effect from 01.01.1997; Rs.5.00 from 01.01.2003 and Rs.7.50 from 01.01.2006, which has been accepted by the claimants – respondents. Therefore, also award of Rs.6.60 per sq.mtr. for the aforesaid period is not justified. It is therefore, submitted that assessment of rent compensation at the rate of Rs.7.70 per FA/24/2008 JUDGMENT sq.mtr. is wholly unjustified and unsustainable in law and requires to be quashed and set aside. It is submitted by Mr.Mehta, learned Advocate appearing on behalf of the appellant that as such the reference applications itself were not maintainable in as much as nothing is on record to suggest that any dispute with regard to sufficiency of compensation was raised by the land owners at the time of award dated 04.02.1992.

It is further submitted by him that award was declared by the Special Land Acquisition Officer on 04.02.1992 declaring rental / compensation at the rate of Rs.1.10 paise and the reference applications are filed by the claimants in the month of January, 2006 i.e. after a period of 14 years from the date of award as well as taking possession, raising dispute for the first time with respect to sufficiency compensation / rental. Therefore, the Reference Court / Civil Judge ought not to have entertained said reference cases and ought to have dismissed the same by holding that they are barred by limitation and/or on the ground of delay and laches. It is further FA/24/2008 JUDGMENT submitted that as the reference applications were submitted after almost 14 years, even the Collector / Land Acquisition Officer ought not to have referred the dispute to the reference Court. It is submitted that it seems that the reference applications are referred to the Reference Court mechanically without even satisfying by itself that any dispute was raised by the land owners with regard to sufficiency of rental / compensation at the time of award / taking possession.

It is further submitted that even looking to sub-section(3) of Section 35 of the Act, said reference applications by the claimants are not maintainable and as such there is no provision under sub-section (3) of Section 35 of the Act permitting the claimants to submit reference applications like reference applications under Section 18 of the Act i.e. with regard to permanent acquisition. It is also submitted that even the Reference Court has not properly framed the issues and though a specific objection was raised with respect to limitation, no issue has been framed by the learned Reference Court with regard to limitation. FA/24/2008 JUDGMENT

It is also submitted that even decision of this Court in the case of Patel Shambhubhai (supra) on the point of limitation and /or on the point of jurisdiction of the Reference Court to award rental beyond the period of three years has not been properly appreciated and considered by the Reference Court. Making above submissions, it is requested to allow the present appeals and to quash and set aside impugned judgment and awards. Learned Assistant Government Pleader appearing on behalf of the Special Land Officer has adopted the submissions made on behalf of the appellant and has submitted that the impugned judgment and award passed by the Reference Court is not tenable in law and is without jurisdiction, which requires to be quashed and set aside.

This appeal is opposed by Mr.A.J.Patel, learned Advocate appearing on behalf of the claimants. It is submitted that impugned judgment and award passed by the learned Reference Court and the amount of compensation is worked out on the basis of the earlier award of the same village which have FA/24/2008 JUDGMENT been accepted by the ONGC and payment has already been made by the ONGC and no appeal has been preferred before this Court and therefore, fixation of the amount is not required to be altered and/or interfered with.

So far as the contention on behalf of the appellant that the Reference Court has no jurisdiction to determine the amount of compensation / rental for the period beyond three years, Mr.Patel, learned Advocate appearing on behalf of the original claimants has submitted that considering Section 35 of the Act, ONGC can retain possession for a maximum period of three years only and any occupation and/or possession of the ONGC after a period of three years from the date of taking possession would be unlawful possession and ONGC can be said to be in unauthorized possession of the land. It is submitted that Section 53 of the Act provides that save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under the Act. He has FA/24/2008 JUDGMENT placed reliance on the provisions of Order XX Rule 12 of the Code of Civil Procedure and has submitted that just as the Civil Court has power to pass order regarding rent or mesne profits in a suit for recovery of possession of immovable property, the Reference Court, even assuming that it has no power to award compensation after a period of three years, it can award the mesne profits which could be equivalent to the just compensation. In support of his submission Mr.Patel, learned Advocate appearing on behalf of the claimants has relied upon following decisions : (1) Gopalakrishna Pillai and Ors. V/s. Meenakshi Ayal and Ors. Reported in AIR 1967 SC 155;