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Oil and Natural Gas Corporation Ltd. Vs. Sankarji Hemaji and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberFirst Appeal Nos. 790 and 791 to 794 of 2007
Judge
Reported in(2008)2GLR1226
ActsCode of Civil Procedure (CPC), 1908; Land Acquisition Act - Sections 3(3), 4(1), 6, 18, 18(1), 18(3), 35, 35(1), 35(2), 35(3), 53, 54 and 58; Limitation Act, 1963 - Schedule - Article 137; Patents Act, 1970 - Sections 71
AppellantOil and Natural Gas Corporation Ltd.
RespondentSankarji Hemaji and anr.
Appellant Advocate Trivedi and; Gupta, Advs.
Respondent AdvocateDipen Desai Asst. Government Pleader for Respondent 2
DispositionAppeal allowed
Cases ReferredPatel Shambhubhai Bhaichanddas v. State of Gujarat
Excerpt:
- - 6 as well as the special land acquisition officer at ex. 11. his written examination in chief was submitted by the learned advocate on 1/4/2005. he was cross examined by the learned advocate appearing on behalf of the acquiring body [ongc] as well as district government pleader on behalf of the state. while passing the impugned judgement and award, the learned reference court not only held that the reference applications are submitted within the period of limitation but also held that the entire land acquisition proceedings under section 35 of the act in respect to the land in question are illegal, nullity, null & void and even the award declared under section 35 of the act is also bad in law and nullity. 11, the claimant who has been examined on behalf of all the claimants, has.....m.r. shah, j.1. as all these first appeals arise out of common judgement and award passed by the learned reference court and raise common questions of fact and law, they are being disposed of by this common judgement and order.2. in all these first appeals, the appellants original opponent no. 2 oil and natural gas corporation [ongc] - acquiring body, has challenged the common judgement and award dtd. 15/10/2005 passed by the learned principal senior civil judge, mehsana (mr.j.r. shah) (the sreference court for short) in land reference case nos. 3780 to 3784 of 2003, whereby the reference court has granted compensation of rs. 3 per sq.mtr. from the date of taking over possession upto 31/12/1983; rs. 3.33 per sq.mtr. from 1/1/1984 to 31/12/1985; rs. 4 per sq.mtr. from 1/1/1986 to.....
Judgment:

M.R. Shah, J.

1. As all these First Appeals arise out of common judgement and award passed by the learned Reference Court and raise common questions of fact and law, they are being disposed of by this common judgement and order.

2. In all these First Appeals, the appellants original opponent No. 2 Oil and Natural Gas Corporation [ONGC] - acquiring body, has challenged the common judgement and award dtd. 15/10/2005 passed by the learned Principal Senior Civil Judge, Mehsana (Mr.J.R. Shah) (the SReference Court for short) in Land Reference Case Nos. 3780 to 3784 of 2003, whereby the Reference Court has granted compensation of Rs. 3 per sq.mtr. from the date of taking over possession upto 31/12/1983; Rs. 3.33 per sq.mtr. from 1/1/1984 to 31/12/1985; Rs. 4 per sq.mtr. from 1/1/1986 to 31/12/1987; Rs. 4.50 per sq.mtr. from 1/1/1988 to 31/12/1990; Rs. 5 per sq.mtr. from 1/1/1991 to 31/12/1993; Rs. 6.66 per sq.mtr. from 1/1/1994 to 31/12/1996; Rs. 8.33 per sq.mtr from 1/1/1997 to 31/12/1999; Rs. 10 per sq.mtr. from 1/1/2000 to 31/12/2002; Rs. 12 per sq.mtr. from 1/1/2003 to 31/12/2004 and thereafter Rs. 15 per sq.mtr. from 1/1/2005 onwards, against an amount of Rs.0.35 ps. per sq.mtr. originally awarded by the Special Land Acquisition Officer under Section 35 of the Land Acquisition Act (Sthe Act for short). The Reference Court also further directed the appellant Corporation to pay arrears of compensation with interest at the rate of Rs. 12% p.a. from the date on which the amount has become due till 31/12/1999 and thereafter at the rte of 9% p.a. till the amount is realised or paid by the appellant. The Reference Court by the aforesaid judgement and award has also further directed that the amount of compensation fixed at Rs. 15 per sq.mtr will be increased at 15% at every interval of three years commencing from 1/1/2005 and the said increase will be calculated on the last presiding amount. The reference court has further observed to the effect that in the event of land not being surrendered to the original land owner, then in that case, the claimants will have right after expiration of period of 20 years to move the competent court for refixation of the amount of compensation in future.

3. All the respondents herein original land owners/ claimants are owners of their respective lands situated at village Dhanpura, Taluka Mehsana, District; Mehsana which came to be temporarily acquired by the State Government for ONGC under Section 35 of the Act in the year 1980 and the possession of the said land have been taken over by the ONGC on 11/8/1980 on payment of compensation by way of rent at the rate of Rs.0.35 paise per sq.mtr. per annum. The Special Land Acquisition Officer declared award determining compensation/rent at the rate of Rs.0.35 paise on 11/8/1980. The said amount came to be accepted by the original land owners. The Reference Applications were filed by the respective claimants on 16/7/2001 i.e. after a period of 21 years from the date of taking over possession and declaring the award, making a grievance in respect to the amount of compensation / rent determined by the Special Land Acquisition Officer vide Award dtd.11/8/1980 and the said applications were submitted before the Special Land Acquisition Officer, ONGC, Unit-II, Mehsana on 16/7/2001 and it was requested to refer the said applications to the reference court. The Special Land Acquisition Officer, ONGC, Unit-II, Mehsana referred the said applications to the Reference Court which were submitted in respect to the inadequacy of amount of compensation / rent and the same were numbered as Land Reference Case Nos. 3780 to 3784 of 2003. All the aforesaid Land Reference Cases were consolidated by the reference court. Written Statements were filed by both the original opponents i.e. acquiring body [ONGC] at Ex.6 as well as the Special Land Acquisition Officer at Ex.8, raising objections in respect to the reference applications being time barred and that the amount of compensation and that of annual rent was never disputed by the applicants / claimants and therefore, are not maintainable under the provisions of the Act. That number of other objections were raised with regard to maintainability of the reference applications and adequacy of compensation/rent. It was also submitted that in fact, subsequently, the ONGC, from time to time at the interval of three years, on the basis of administrative decision, has increased the rent which have been accepted by the claimants without any objection. The reference Court framed the following issues at Ex.18:

i. Whether the compensation awarded by the Special Land Acquisition Officer is not fair and adequate?

ii. What additional compensation the claimants are entitled in land acquisition?

iii. What order and award?

4. On behalf of all the claimants, claimant of L.A.R No. 3780 of 2003 namely Thakor Shivaji Hemaji came to be examined at Ex.11. His written examination in chief was submitted by the learned advocate on 1/4/2005. He was cross examined by the learned advocate appearing on behalf of the acquiring body [ONGC] as well as District Government Pleader on behalf of the State. On behalf of the acquiring body one Mr.Rameshkumar Prajapati came to be acquired at Ex.12. He was cross examined by the learned advocate appearing on behalf of the claimants. On behalf of the acquiring body ONGC written submissions dtd.20/9/2005 were submitted vide Ex.14. The learned reference court passed the impugned judgement and award vide Ex.15 awarding compensation/rent with other benefits as stated hereinabove. While passing the impugned judgement and award, the learned reference court not only held that the reference applications are submitted within the period of limitation but also held that the entire land acquisition proceedings under Section 35 of the Act in respect to the land in question are illegal, nullity, null & void and even the award declared under Section 35 of the Act is also bad in law and nullity. The reference Court also held that the possession of the ONGC acquiring body is unauthorised and that they are trespasser. The reference Court also held that as the entire land acquisition proceedings are illegal and nullity and the possession by the acquiring body is unauthorised and they are trespassers, the claimants are entitled to get back the possession. However, the reference court did not restore the possession by observing that whatever is done by the acquiring body is in the public interest. The reference court directed that the aforesaid amount be paid by way of mesne profit as the acquiring body is in unauthorised possession and occupation of the land in question. In para 31 the reference court has also held that the ONGC acquiring body is in possession of the land in question as permissive users. Being aggrieved by and dissatisfied with the judgement and award dtd. 15/10/2005 passed by the learned Principal Senior Civil Judge, Mehsana (Mr.J.R. Shah) (the SReference Court for short) in Land Reference Case Nos. 3780 to 3784 of 2003, the appellants herein original opponent No. 2 has preferred these appeals under Section 54 of the Land Acquisition Act.

5. Points for consideration:

i. Whether the reference court was justified in entertaining the reference applications under Sub-section (3) of Section 35 of the Land Acquisition Act, which were submitted after a period of 21 years from the date of taking possession?

ii. Whether the reference can decide the disputes other than sufficiency of the compensation, such as legality and validity of the temporary acquisition under Section 35 of the Land Acquisition Act; declaration of the Award etc. in a reference under Sub-section (3) of Section 35 of the Land Acquisition Act?

iii. Whether the reference court in a reference under Sub-section (3) of Section 35 of the Land acquisition Act can decide any dispute other than the dispute which is referred to it?

iv. Whether the reference court in a reference under Sub-section (3) of Section 35 of the Land Acquisition Act has jurisdiction and/or authority to pass an order restoring possession of the land to the owners?

v. Whether the reference court in a reference under Sub-section (3) of Section 35 of the Land Acquisition Act has jurisdiction to declare the possession of the acquiring body as illegal, unauthorised and/or declare the acquiring body as trespasser?

vi. Whether the reference court in a reference under Sub-section (3) of Section 35 of the Land Acquisition Act has jurisdiction to determine and/or award compensation rented for a period beyond the period of three years?

vii. Whether the reference in a reference court under Sub-section (3) of Section 35 of the Land Acquisition Act has jurisdiction to award compensation by way of mesne profit beyond the period of three years from the date of taking possession?

viii. Whether the reference court in a reference under Sub-section (3) of Section 35 of the Land Acquisition Act has jurisdiction to declare acquisition proceedings and award declared by the Collector under Sub-section (3) of Section 35 of the Land Acquisition Act as illegal and/or non-est?

ix. Whether the reference court in a case of temporary acquisition has jurisdiction to award statutory benefits and/or interest as if the acquisition proceeding is permanent acquisition?

6. Submissions on behalf of the appellant:

Mr.Naik, learned advocate appearing on behalf of the appellant has submitted that the reference applications submitted by the claimants dtd.16/7/2001 itself were not maintainable as no were objections raised by the claimants at the time of award dtd.11/8/1980 with respect to sufficiency of compensation. Considering Section 35(3) of the Act, only in case the Collector and the person interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector is required to refer such difference to the decision of the Court. It is submitted that even considering the deposition of the claimant at Ex.11, his father had not submitted any objection and even the amount of compensation/rent fixed at the relevant time was just.

7. It is also further submitted by the learned advocate appearing on behalf of the appellant that even otherwise, the reference applications submitted by the original claimants dtd.16/6/2001 for making the reference to the reference court, were not maintainable inasmuch as the same were submitted after a period of 21 years after the alleged cause of action has arisen. It is submitted that as in Section 35(3) of the Act, no period of limitation has been prescribed, Article 137 of the Limitation Act, 1963 would come into play and therefore, at the most the applications were required to be filed within three years from the date of possession i.e. 4/6/1980, therefore even the applications for reference were time barred and beyond the period of limitation and therefore, as such the Special Land Acquisition Officer ought not to have referred the applications to the reference court. It is also alternatively submitted that assuming without admitting that no period of limitation has been provided under Section 35 of the Act, the applications could be maintainable only if filed within a reasonable time i.e. at the most filed within a period of six months. The learned advocate appearing for the appellant has relied upon the following decisions in support of his submissions:

i. in the case of State of Karnataka v. Laxuman reported in : AIR2006SC24 ;

ii. in the case of the Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma reported in : [1977]1SCR996 ;

iii. in the case of Bayer Aktiengesellschft of Leverkusen Federal Republic of Germany v. Controller of Patents, Government of India reported in : AIR1982Cal30 .

iv. in the case of the State of Gujarat v. Patil Raghav Natha and Ors. reported in : [1970]1SCR335 and

v. in the case of Meher Rusi Dalal v. Union of India and Ors. reported in : AIR2004SC3491 .

8. It is also further submitted by the learned advocate appearing on behalf of the appellant that the applications filed by the original claimant dtd.16/7/2001 were not maintainable inasmuch as there was no dispute or difference raised at the relevant time with regard to amount of compensation determined by the Collector. It is submitted that in light of the evidence of the claimant recorded at Ex.11 and more particularly the admission on the part of the claimant, it becomes clear that there did not exist any dispute as regards compensation for temporary acquisition of the subject land in the year 1980.

9. It is further submitted by Mr.Naik, learned advocate appearing on behalf of the appellant that the reference made by the Collector for determination of the compensation is also without jurisdiction, authority, power or competence inasmuch as when the original owner i.e. father of the respondent No. 1 had agreed to the amount of compensation, no reference could have been made under Section 35 of the Act. With reference to the findings of the Court that the entire acquisition proceedings and the award under Section 35 of the Act are illegal, null and void and nullity and that the acquiring body is in unauthorised occupation and possession of the land and they are trespassers, Mr.Naik, learned advocate appearing on behalf of the appellant has submitted that all the aforesaid findings recorded by the reference court are without jurisdiction. It is submitted that Section 35 of the Act confers limited jurisdiction on the reference court to determine only the question as regards sufficiency of compensation and that too in a case of difference between the Collector and the persons interested. It is submitted that the reference court, acquiring jurisdiction under Section 35 of the Act, does not have jurisdiction, power, authority or competence to travel to adjudicate issue beyond the terms of the reference. It is further submitted that the findings of the reference court that the reference court has all rights, power and authority to adjudicate every question falling under the ambit of the provisions of the Act, is without jurisdiction and authority under the law. Mr.Naik, learned advocate appearing on behalf of the appellant has relied upon the following decisions in support of his above submissions:

i. in the case of Balram Chandra v. State of U.P. reported in : AIR1995SC1552 ;

ii. in the case of P.K.Sreekantan and Ors. v. V.P. Sree Kumaran Nair and Ors. reported in : AIR2007SC516 ;

iii. in the case of Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradhikaran and Anr. reported in : [2003]3SCR567 ;

iv. in the case of Patel Shambhubhai Bhaichanddas v. State of Gujarat and Anr. reported in 2007 (2) GLH 272 (paras 4,5,6,8 & 10 to 12) and

v. in the case of ONGC Ltd. v. Pandya Prahladbhai Manilal and Ors. reported in 2006(3) GLH 662 (paras 10 to 16).

10. It is also further submitted that the reference court does not have any jurisdiction to determine the issue of validity of acquisition. It is submitted that the reference court acquiring jurisdiction under Section 35 of the Act, does not have any power, authority or competence to decide any other issue except limited question of sufficiency of compensation.

11. It is also further submitted that the reference court does not have any jurisdiction to decide the issue with regard to possession of the subject land by the Corporation and therefore, the observations made by the reference court to the effect that the Corporation is in possession of the land as a trespasser, are absolutely without jurisdiction, illegal, invalid and unjustified.

12. It is also further submitted that even otherwise without framing any proper issue with respect to the validity of the acquisition proceedings, possession of the Corporation etc. no such findings could have been given by the reference court. It is also further submitted that even the claimants in their reference applications dtd.16/7/2001 have never made any grievance with regard to acquisition proceedings and/or possession of the Corporation. Thus, the aforesaid findings by the Reference Court are beyond the terms of the reference.

13. It is also further submitted that the reference court has made self contradictory observations in the award inasmuch the reference court on the one hand has observed that the possession of the Corporation amounts to trespassing and on the other hand has observed that the Corporation occupies the land under permissive user with the consent of the land owners.

14. It is also further submitted that the observations and the findings of the reference court that the claimants are entitled to the damages as mesne profit are completely without jurisdiction, illegal, unjustified and improper. It is submitted that the reference court does not have any jurisdiction to decide such issue in a reference under Section 35 of the Act. It is submitted that only in a suit wherein decree for possession is sought, and it is found that the occupier is in illegal and/or unauthorised possession, in that case only the order for mesne profit can be passed, that too by the competent court having competence to pass a decree for possession. It is submitted that in the present case in a reference under Section 35 of the Act, the reference court has no such jurisdiction to order restoration of possession. It is further submitted that even otherwise, the claimants have been paid increased rate from time to time and the same has been admitted by the claimants in the cross examination and that they have accepted the same without raising any objection. It is submitted that even in the cross examination at Ex.11, the claimant who has been examined on behalf of all the claimants, has admitted that the claimants are satisfied with the rent presently paid to them.

15. It is further submitted by Mr.Naik, learned advocate appearing on behalf of the appellant that the reference court has committed an error in holding that the Corporation did not produce any material as to how and on what basis the periodical rise has been given and thereby drawing adverse inference. It is submitted that only in a case where ONGC is called upon to produce certain things and the Corporation does not produce the same, in that case, adverse inference can be drawn and not otherwise. It is further submitted that even the reference court has acted beyond its jurisdiction in awarding increased rent as reflected in the final judgement and award beyond the period of temporary acquisition under the Act which is three years. It is submitted that as held by this Court, considering Section 35 of the Act, reference court would have jurisdiction to award compensation/rent only for a maximum period of three years and for the period thereafter, the reference court would have no jurisdiction to award compensation/rent. He has relied upon the decisions in the case of Patel Shambhubhai Bhaichanddas (supra) and Pandya Prahladbhai Manilal (supra).

16. It is also further submitted that even the findings of the reference court with respect to the reference applications within the period of limitation on the basis of his interpretation of Section 35, are perverse and illegal.

17. It is also further submitted that the entire judgement and award more particularly operative portion of the judgement and award by directing the appellant to pay enhanced compensation/rent for different period which are mentioned hereinabove is perverse, illegal, without jurisdiction and without authority under the law.

18. It is also further submitted that the reference court does not have jurisdiction to grant interest on the compensation awarded by it in the Award under challenge. In support of his above submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of Brij Behari Sahai v. State of Uttar Pradesh reported in : [1986]3SCR468 .

19. Mr.Naik, learned advocate appearing on behalf of the appellant has further submitted that the reference court has even not considered and/or appreciated the cross examination of the claimant who has been examined on behalf of all the claimants examined at Ex.11. It is submitted that even the claimant in his cross examination has admitted that he does not know what is stated in the reference application and what amount he asked has in the application. It is admitted by the claimant in the cross examination that whatever is written in the application, is written by the advocate without his instructions and/or knowledge. It is also submitted by Mr.Naik learned advocate appearing on behalf of the appellant that even the signature of the claimant Thakor Shivaji Hemaji defers in the reference application and in the deposition before the Reference Court. Therefore, it is submitted that even the reference application might not have been signed by the claimants. It is also further submitted by Mr.Naik that even the amount of compensation/rent determined by the reference court is without any basis and/or material.

Making above submissions, Mr.Naik, learned advocate appearing on behalf of the appellant has requested to quash and set aside the impugned judgement and award with costs.

20. Mr.Dipen Desai, learned Assistant Government Pleader appearing on behalf of the Special Land Acquisition Officer has adopted the submissions made on behalf of the appellant and has submitted that the impugned judgement and award require to be quashed and set aside as the same is without jurisdiction. It is fairly conceded by him that even the Special Land Acquisition Officer ought not to have referred the reference to the reference court when the reference applications were submitted after a period of 21 years and when there was no dispute raised by the original claimant at the time when the award was declared and the amount of compensation/rent was determined in the year 1980.

21. Mr.A.V. Prajapati, learned advocate appearing on behalf of the one of the claimant has opposed all these appeals. He has tried to support the judgement and award passed by the reference court by submitting that considering the fact that under the provisions of the Act more particularly Section 35 of the Act, temporary acquisition can be only for a maximum period of three years and any occupation and possession of the acquiring body after a period of three years would be illegal and unauthorised and therefore, the reference court has rightly held the possession of the ONGC as illegal and unauthorised and has rightly awarded mesne profit. It is also submitted by Mr.Prajapati that the reference court has rightly appreciated the deposition of the claimant at Ex.11 considering the fact that the claimant who has been examined at Ex.11 is an illiterate person who might not have properly understood the questions. It is submitted that the reference court has rightly given more weightage to the interest of the land owners against the mighty ONGC. It is also submitted by him that the reference court has rightly awarded mesne profit/compensation/rent as per the operative order of the impugned award giving rise from time to time and therefore, the same is not required to be interfered with. It is also submitted that the reference court has awarded compensation/rent/mesne profit relying upon other awards which is the right method of awarding compensation. Therefore, it is requested to dismiss all these appeals. It is submitted that it is rightly observed and held by the reference court that under Section 35(3) of the Act, duty is cast upon the Collector to refer the dispute to the reference court and in the present case, the Collector has failed to refer the dispute to the reference court and therefore, the reference court has rightly held the entire acquisition proceedings as null and void and nullity and has rightly held that the reference applications submitted by the claimants are within the period of limitation and/or are not barred by delay and laches.

By making the above submissions, Mr.Prajapati, learned advocate appearing on behalf of the claimants has requested to dismiss all these appeals.

22. Heard the learned advocates appearing on behalf of the respective parties.

23. At the outset, it is required to be noted that acquisition of the land in question was temporary acquisition for ONGC under Section 35 of the Act. The award came to be declared by the Special Land Acquisition Officer as back as on 11/8/1980 determining the compensation/rent at the rate of 0.35 paise per sq.mtr. The reference applications under Section 35(3) of the Act were submitted by the claimants on 16/7/2001 i.e. after a period of 21 years with regard to adequacy of the rent determined by the Special Land Acquisition Officer on 11/8/1980. On behalf of all the claimants, claimant of LAR No. 3780 of 2003 Thakor Shivaji Hemaji came to be examined at Ex.11 for and on behalf of all the claimants. Nothing is on record to show that there was any difference/dispute raised by the original land owners at the time of acquisition in the year 1980 and at the time when the Special Land Acquisition Officer declared the award on 11/8/1980 determining the compensation/rent at the rate of 0.35 paise per sq.mtr. per annum. On the contrary in the cross examination the said witness claimant of L.A.R. No. 3780 of 2003 has admitted that he is not aware with regard to acquisition of the land in question. He has stated that the possession was handed over by his father and he was not present. Translation of the cross-examination of the said witness reads as under:

Cross Examination by Shri D.R. Trivedi for the State. I do not know about the land acquisition of my survey number. I do not know as to the possession of much my land is handed over. My father had handed over the possession of the land. The possession of the land was handed over about 25 years ago. I do not know as to how much rent was fixed at that time. My father had taken the rent which was fixed. My father had expired before 14 years. My father did not make any application for increasing the rent during his life time. An application was made 11 years after the demise of my father. I do not know as to why did my father make an application.

Cross examination by Shri I.K. Shah for the respondent No. 2. It is true that the rent was fixed on the basis of rate prevailing at the relevant time. At present the O.N.G.C. pay me Rs. 20,000 (in words Rupees Twenty Thousand) per annum for my land. At present I do not have any land for cultivation. It is true that my father was knowing as to how much produce was available from this land prior to the land acquisition. I did not carry any cultivation after the death of my father because my entire land is acquired by the O.N.G.C. I am doing agriculture labour work. I have never gone to sell the agriculture produce. It is true that we buy grain for consumption and so we know the price otherwise we do not know the price of other items. I can not assume the rent. I have no specific demand. I do not know as to what is written in my application and I do not know as to how much demand is there. An advocate approached me for making this application. I have not given any details to the advocate for making an application. I do not know as to what is written in my examination-in-chief by my advocate. I do not know as to what is stated in my affidavit before the court. At present the O.N.G.C. is paying me the rent which is sufficient. No re-examination

24. No other witness has been examined on behalf of the claimants. In the cross examination, it is admitted by the aforesaid witness that the rent was fixed considering the price prevailing at the relevant time. There is no other evidence on record to suggest that at the relevant time when the rent was determined and the award was declared by the Special Land Acquisition Officer in the year 1980, there was any dispute with regard to sufficiency of the compensation/rent. Under Section 35(3) of the Act, only in case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector shall refer such difference to the decision of the Court. Under the circumstances, when there was no dispute raised on behalf of the claimants as to the sufficiency of the compensation at the time when the award was published by the Special Land Acquisition Officer in the year 1980 determining the compensation paid at the rate of 0.35 paise per sq.mtr. per annum, the Collector was not required to refer the dispute to the court. Under the circumstances, the reference applications submitted by the claimants in the year 2001 with respect of sufficiency of the compensation/rent itself are not maintainable. At the relevant time, the claimants were satisfied with regard to adequacy of the compensation and nothing is on record that there was any dispute raised as to the sufficiency of the compensation/rent. It is also required to be noted at this stage that the original land owners have accepted the compensation/rent at the rate of 0.35 paise per sq.mtr. per annum as per the award dtd.11/8/1980 without raising any objection. Nothing is on record that the claimants have, at any point of time, objected to the compensation/rent at the rate of 0.35 paise per sq.mtr. per annum. Under the circumstances, the findings and observations of the reference court that it was the duty of the Collector to refer the dispute to the reference court and as the Collector has failed to perform his duty, the entire acquisition proceedings and the award are null and void, require to be quashed and set aside, as the same is contrary to the evidence on record and Sub section (3) of Section 35 of the Act. Even by raising subsequent dispute, reference applications under Section 35(3) of the Act are not maintainable. On fair reading of entire Section 35 of the Act, Sub-section (1) of Section 35 of the Act authorises the appropriate Government to direct the Collector to procure the occupation and use of the same for such terms as it shall think fit, not exceeding three years from the commencement of such occupation. As per Sub section (2) of Section 35, the Collector is required to give notice in writing to the persons interested in such land of the purpose for which the same is needed, and shall, for the occupation and use thereof, for such term as aforesaid, and for the material, (if any), to be taken therefrom, pay to them such compensation, either in a gross sum of money, or by monthly or other periodical payments, as shall be agreed upon in writing between him and such persons respectively. Sub section (2) of Section 35 will be attracted when there is an agreement with respect to the compensation between the Collector and the land owner and/or a person interested in the land. If the Collector and the persons interested do not agree and there is difference as to the sufficiency of the compensation in that case the Collector is required to refer such difference to the decision of the Court. Therefore, even when the Collector is required to refer the dispute to the reference court under Sub-section (3) of Section 3 of the Act, the same will be only in respect to such difference as to the sufficiency of the compensation between the Collector and the persons interested. Only such difference as to the sufficiency of the compensation, the Collector is required to refer the dispute to the decision of the Court. Even considering Sub-section (3) of Section 35, there is nothing provided that the land owner can submit the application for referring the dispute to the reference court as so provided under Section 18 of the Act in case of permanent acquisition. In the present case as stated above, no such dispute has been raised by the original land owners as to the sufficiency of the compensation and claimants have accepted the compensation/rent as per the award dtd.11/8/1980 without raising any objection and therefore, the reference applications submitted by the original claimants are not maintainable.

25. Even otherwise as stated above, the Special Land Acquisition Officer declared the award under Section 35 of the Act as back as on 11/8/1980 determining the compensation/rent at the rate of 0.35 paise per sq.mtr. per annum which was never objected to by the original land owners / interested persons, but the same came to be accepted without raising any objection and still the respondents herein original claimants submitted the applications for making reference to the reference court under Sub section (3) of Section 35 i.e. after a period of 21 years raising the dispute as to sufficiency of the compensation which was determined while declaring award on 11/8/1980. It is the contention on behalf of the original claimants that as under Subsection (3) of Section 58 of the Act on 11/8/2008, no time limit is prescribed and as it is the duty of the Collector to refer the dispute to the Reference Court and as the Collector has failed to perform the duty cast upon him, the application submitted by the claimants are within the period of limitation and/or not barred by delay and laches. It is the contention on behalf of the appellants and the Special Land Acquisition Officer that when there is no limitation prescribed, Article 137 of the Limitation Act would come in picture and within three years from the date of cause of action, the applications could have been made. It is true that under Sub section (3) of Section 35 of the Act, no limitation is prescribed. However, that does not mean that the application for reference can be made at any time. Article 137 of the Limitation Act provides that when there is no limitation prescribed or provided, three years would be the limitation and from the date of cause of action within three years, an aggrieved person can initiate proceedings. The reference court has misinterpreted the provisions of Section 35 of the Act. While considering the submissions with regard to the limitation, the reference court has held that as the entire land acquisition proceedings and the award are null and void, Article 137 of the Limitation Act (reference court has considered Section 137 of the Limitation Act wrongly) would not be applicable, more particularly when the Collector has failed to perform the duty cast upon him, making the reference to the reference court as provided under Sub section (3) of Section 35 of the Act. As stated above, such a findings and the observations of the Reference Court are perverse and illegal. As held by us, there was no dispute with regard to sufficiency of the possession raised by the claimants at the relevant time when the award was declared, therefore, there was no occasion for the Collector to refer the dispute to the reference court and we have also held that the reference applications are not maintainable. Even otherwise, assuming that it was the duty of the Collector to refer the dispute to the reference court and when the Collector failed to perform his duty, in that case also, the claimants are required to initiate appropriate proceedings within reasonable time, as there is no time limit prescribed under the Act. Certainly the claimants cannot submit the applications and/or raise the dispute after a period of 21 years. Thus, on the ground of delay and laches the reference applications were not maintainable. As such when the applications were submitted after a period of 21 years raising dispute with regard to adequacy of the compensation awarded in the year 1980, the Special Land Acquisition Officer, ought not to have referred the dispute to the reference court. As such the Special Land Acquisition Officer himself has committed an error and/or acted arbitrarily in referring the dispute to the reference Court after a period of 21 years.

26. In the case of Laxuman (supra), while dealing with Section 18(3) of the Act which also does not provide any time limit, the Hon'ble Supreme Court has held that since the application is to the Court, though under a special enactment, Article 137, the residuary article of the Limitation Act, 1963, is attracted and the application has to be made within three years of the expiry of 90 days from the date of application under Section 18(1) of the Act made by the claimant. In the said decision, the Hon'ble Supreme Court has considered the another decision of the Hon'ble Supreme Court in the case of Additional Special Land Acquisition Officer v. Thakoredas reported in : AIR1994SC2227 . The Hon'ble Supreme Court has further observed in the said decision that the right undisputedly available to a litigant becomes unenforceable if the litigant does not approach the Court within the time prescribed and the law is for the diligent. It is also further observed that the law expects a litigant to seek the enforcement of a right available to him within a reasonable time of the arising of the cause of action.

27. The Calcutta High Court in the case of Bayer Aktiengesellschft of Leverkusen Federal Republic of Germany v. Controller of Patents, Government of India reported in : AIR1982Cal30 , while dealing with Section 71 of the Patents Act, 1970 and Article 137 of the Limitation Act, 1963 has also held that If any special or local law does not prescribe any time for application to made to Court such application would be governed by Article 137.

28. Considering above, the findings of the reference court that the applications submitted by the claimants for making reference under Sub-section (3) of Section 35 of the Act were within the period of limitation and/or were not barred by Limitation and/or were not required to be dismissed on the ground of delay and laches, are perverse, illegal and contrary to the evidence on record and Section 35 of the Act and Article 137 of the Limitation Act, which require to be quashed and set aside.

Thus, it is held that the reference applications submitted by the claimants under Section 35(3) of the Act were not maintainable and could not have been entertained by the reference court as the same were barred by the limitation and/or in the alternative barred by delay and laches. It is also held that the reference applications under Sub-section (3) of Section 35 of the Act were not maintainable at all, as there was no dispute raised by the claimants / original owners at the time when the award was declared and/or there was no difference as to the sufficiency of compensation at the relevant time.

29. Now, that takes us to some of the findings and observations recorded by the reference court which are as under;-

i. That the entire land acquisition proceedings and the award declared by the Special Land Acquisition Officer are illegal and null and void.

ii. The competent authority has not followed the mandatory provisions under Section 35 of the Act.

iii. SReference Court under the provisions of Land Acquisition Act, have exclusive jurisdiction and hence, the said jurisdiction includes jurisdiction to determine whether a particular proceeding falls within its jurisdiction or not. The reference Court has jurisdiction to decide each and every fact whether it exists or not, it is not the proposition of law that the reference court has no jurisdiction to decide any question or dispute except the question or dispute of compensation. SReference Court has all rights, powers and authority to adjudicate every question falling under the ambit of the provisions of Land Acquisition Act. The Reference Court has not only the jurisdiction to decide the question of quantum of compensation but Reference Court has also jurisdiction to decide all questions and disputes relating to and ancillary to the acquired land and compensation.

iv. Reference court can order to surrender the land to the owner or occupier or interested person by mandatory order against the Government or acquiring body as per the circumstances of each case.

v. The question of compensation is residuary clause which arises out of provisions of Section 35 of the Act. The Court as a SReference Court has ample powers to restore the possession after the maximum period of temporary occupation and use exceeding three years period to the owner or occupier or to the interested person as the case may be.

vi. The Special Land Acquisition Officer who has carried out the said proceedings under Section 35 of the Act and passed the order, has no right, power or authority under the Act to declare and pass such award under Section 35 of the Act under the head of Compensation Case No. 38 of 1980 and the same is without jurisdiction, illegal, arbitrary, null and void and consequently no right over the land of the claimants or interested person or occupier has been accrued in favour of the Corporation i.e. ONGC and the compensation for the land by acquiring body and it stands in the category of trespasser and the possession for the land by acquiring body and its stands in the category of trespasser. The possession of the acquiring body is illegal and unauthorised right from the inception and they are trespassers.

vii. The reference court has jurisdiction to award compensation by way of mesne profit.

Now so far as the aforesaid observations and findings of the Reference Court in a references arising out of Sub section (3) of Section 35 of the Act are per-se perverse, illegal, without jurisdiction and without authority under the law. It is required to be noted that the Special Land Acquisition Officer declared the award under Section 35(3) of the Act on 11/8/1980 being Land Acquisition Case No. 38 of 1980 determining compensation/rent at the rate of 0.35 paise per sq.mtr. per annum. All the claimants submitted the reference applications before the Special Land Acquisition Officer on 16/7/2001 under Sub-section(3) of 35 of the Act, raising objections for the first time with regard to adequacy of the compensation/rent determined in 1980 by submitting that the compensation/rent determined by the Special Land Acquisition Officer vide award dtd.11/8/1980 is inadequate and requested for enhancement of the compensation/rent and the Special Land Acquisition Officer referred the said dispute to the reference court. Thus, what was referred by the Special Land Acquisition Officer was the dispute with regard to adequacy of quantum of compensation and nothing beyond that. Even it was not the case of the claimants that the entire acquisition proceedings and the award are illegal and/or null and void and that ONGC is in illegal and unauthorised occupation and possession of the land in question. Still the reference court has given the aforesaid findings.

30. In the case of Balaram Chandra (supra), the Hon'ble Supreme Court while dealing with and considering the scope, duties and powers of the reference Court under Section 18 of the Act, has held that the District Court (Reference Court) has no jurisdiction to declare notification under Sections 4(1) and 6 to be null and void and/or illegal and he is required to make award with reference to the objections raised by the claimants in respect of area of land or amount of compensation or persons entitled to receive compensation and his duties are confined to the provisions contained in Sections 11, 18 and 20 to 23. It is also further held by the Hon'ble Supreme Court in the said decision that the reference court cannot go beyond the reference and give a declaration that the notifications under Sections 4(1) and 6 are illegal or null and void. It is also held that the reference court would not traverse beyond his powers.

31. While taking a similar view, the Hon'ble Supreme Court in the case of P.K. Sreekantan (supra), considering the decision of the Privy Council and earlier decisions of the Supreme Court in para 14 has observed as under:

14. Every tribunal of limited jurisdiction is not entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction and whether the jurisdiction of such tribunal is dependent on the existence of certain facts or circumstances. Its obvious duty is to see that these facts and circumstances exist to invest it with jurisdiction, and where a tribunal deserves its jurisdiction from the statute that creates it and that statute also defines the conditions under which the tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen. As observed by the Privy Council in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan LR (1955) 6 M.I.A. 134 (PC), whether jurisdiction is given to a court by an Act of Parliament and such jurisdiction is only given upon certain specified terms contained in that Act, it is a universal picture that these terms must be complied with the jurisdiction does not arise [See: Mohammed Hasnuddin v. State of Maharashtra : [1979]2SCR265 .

32. In an another decision in the case of Prayag Upnivesh Avas Nirman Sahkari Samiti Ltd. (supra) the Supreme Court has observed and held that a reference court has no jurisdiction to decide a matter not referred to it.

33. Considering the above decisions and the reference made by the Special Land Acquisition Officer, the findings of the reference court which are reproduced hereinabove with regard to acquisition proceedings and award being null and void and illegal and ONGC acquiring body is in unauthorised and illegal possession and are trespassers, all such findings are wholly without jurisdiction and perverse and without authority under the law and even beyond the reference and/or the dispute referred to the reference court. In a reference under Section 35 of the Act, reference court has no jurisdiction and/or authority under the law to decide any other dispute/question other than the dispute as to the sufficiency of the compensation and that too with respect to only such difference as to the sufficiency of compensation which has arisen between the Collector and the persons interested at the relevant time. The reference court is not vested with any other powers to declare the acquisition proceedings and/or award null and void and/or illegal and/or give a finding whether the acquiring body is in illegal possession and/or trespasser. Similarly, the reference court also has no jurisdiction and/or authority under the law to restore possession of the land to the original land owners in a reference under Section 35(3) of the Act. On going through the entire judgement and award of the Reference Court, It appears that the entire judgement and award runs into approximately 82 pages and considering the same, it appears that the reference court has tried to show his knowledge without proper application of mind to the issues and without appreciating the fact that he has no jurisdiction to decide any other dispute other than the dispute as to the sufficiency of compensation and that he is dealing with the reference under Section 35(3) of the Act. The reference court has tried to show his knowledge by referring to various judgments unnecessarily and has given findings without any jurisdiction. The reference court has exercised the jurisdiction not vested in it and has decided the questions not referred to it and/or which have not arisen at all.

34. It is also required to be noted at this stage that even the issues which are framed by the reference court are:

(i) Whether the applicant proves that the compensation awarded is inadequate?

ii. What additional compensation, if any, he is entitled to?

iii. What award and decree?.

No other issues have been framed by the reference court. No issue, whether the acquisition proceedings and the award declared by the Special Land Acquisition Officer under Section 35(3) of the Act are illegal and/or non-est, has been framed by the reference court. No issue, whether the acquiring body is a trespasser and/or they are in illegal and unauthorised occupation and possession of the land in question, has been framed by the reference court. The reference court has not framed issue with regard to limitation, though in the written statement specific contention has been raised that the reference applications are time barred and/or they are required to be dismissed on the ground of delay. As per Section 53 of the Act, save in so far as they may be inconsistent with anything contained in the Act, the provisions of the [Code of Civil Procedure, 1908 (5 of 1908)] shall apply to all proceedings before the Court under the Act. No decision and/or finding can be given without framing any issue and drawing attention of the parties to the proceedings to the said issues. Thus, even on this ground also, the findings of the reference court that the entire acquisition proceedings and the award declared by the Special Land Acquisition Officer are illegal and non-est and that the acquiring body - ONGC is in illegal and unauthorised occupation and possession of the land in question and that they are trespasser, also cannot be sustained without framing any proper issue.

35. It has come on record that not only the claimants have accepted the amount of compensation/rent determined by the Special Land Acquisition Officer while declaring the award on 11/8/1980, but even thereafter, the ONGC has enhanced the amount of compensation/rent at the interval of every three years from time to time and the said enhanced compensation/rent has been accepted by the claimants without raising any objection. In such circumstances, the reference court could not have declared ONGC as trespassers. It is also required to be noted at this stage that even the findings of the dereference court with regard to possession of the acquiring body are also self contradictory. The reference court in para 31 has observed that Sthis is simple case of assumption of quantum of compensation on the ground of mesna profit as the opponent No. 2 ONGC are permissive user and occupier of the land specifically stated in Compensation Case No. 38/80. Even after para 31(iii), the reference court has observed as under:

The opp. No. 2 ONGC is in possession of the land which has been acquired under the provision of Section 35 of the Land Acquisition Act by the Competent Authority under the said Act and till then, they are in possession of the land and hence their possession can be called permissive possession.

36. Inspite of the above, the reference court has held that the ONGC acquiring body is in illegal and unauthorised possession of the land in question and they are trespasser. Even otherwise, as stated above, ONGC acquiring body has increased quantum of compensation/rent at the interval of every three years substantially, which have been accepted by the claimants without any objections and therefore it can be said that the claimants have impliedly and/or by necessary conduct have agreed with the possession and occupation of the land by ONGC and continue to occupy the possession by the ONGC. As such all these questions and the disputes are not required to be dealt with and considered in a reference under Section 35(3) of the Act. Whether there is any implied extension of contract etc. all are questions which are required to be decided and dealt with in appropriate proceedings when a suit is filed before the civil court.

37. Now so far as the amount of compensation awarded by the reference court and the operative portion of the order which is reproduced hereinabove in para 1 of the judgement, the reference court has awarded the compensation even for the period beyond three years i.e. till date and even for future also. As held by this Court in the case of Oil and Natural Gas Commission v. Pandya Prahladbhai Manilal and Ors. reported in 2006 (3) GLH 662 and in the case of Patel Shambhubhai Bhaichanddas v. State of Gujarat reported in 2007 (2) GLH 272, the reference court, in temporary acquisition under Section 35 of the Act, has no jurisdiction to determine sufficiency of compensation for retention of the land beyond the period of three years. In other-way, the Collector in a reference under Section 35 has power to determine sufficiency of compensation only for retention of land upto a maximum period of three years and recourse to possession after the stipulated period can be sought only by remedy provided under common law. This Court is in complete agreement with the aforesaid two decisions. Thus, even the order passed by the reference court awarding compensation beyond the period of three years in a reference under Section 35 of the Act, is wholly without jurisdiction. In the present case, even the question may arise whether in view of the periodical rise given by ONGC at the interval of every three years, which have been accepted by the claimants without raising any objection, whether the claimants are entitled to raise dispute with regard to sufficiency of compensation/rent.

38. Even while determining the quantum of compensation, the reference court has misinterpreted the evidence and the cross examination of the claimant who has been examined on behalf of all the claimants at Ex.11, which has been reproduced hereinabove. The claimant has specifically stated in his cross examination that he has no knowledge about the income derived from the land in question; he has no personal knowledge what amount he has asked in the reference application; he does not know the contents of the reference application; he also does not know on what basis the amount of compensation/rent is sought to be increased. He has specifically admitted that he has not given any instructions to the advocate and in fact, the advocate himself has written everything. He has also admitted that he has no account and/or evidence to justify income of Rs. 40,000, as stated in the examination-in-chief. However, the reference court has held that the claimant has proved the income of Rs. 40,000 per annum derived from the land in question. It is also required to be noted that no documentary evidence has been produced with regard to the income derived from the land in question. In absence of any documentary evidence, the reference court could not have given any finding with regard to income of Rs. 40,000 derived from the land in question. Thus, even otherwise, the finding with respect to the income by the reference court is perverse and on misreading of the evidence and the same is on no evidence. The operative portion of the order awarding compensation to the claimants at the enhanced rate periodically is also without jurisdiction and based on no evidence. Even the amount of compensation/rent awarded by the reference court seems to be more than the compensation paid for permanent acquisition. The directions issued by the reference court in para 49 to 51 and operative portion of the judgement in para 52, are all without jurisdiction and de-hors the provisions of the Act. The reference court has issued certain directions with regard to interest, as if the reference court is dealing with the reference with regard to permanent acquisition. The reference court has failed to appreciate that it was dealing with the reference with respect to temporary acquisition of land under Section 35(3) of the Act. Thus, the impugned judgement and award require to be quashed and set aside.

39. At this stage it is required to be noted and it appears from the judgement and award that the reference court has awarded compensation/rent by way of mesne profit by giving contradictory findings with regard to possession and occupation of the ONGC. As stated hereinabove, the reference court has no jurisdiction to decide any dispute de-hors the dispute referred to it. It is also held that the reference court has no jurisdiction to restore the possession of the land owners. The competent Civil Court can award mesne profit only in a suit for possession and when it is found that the occupier is in illegal possession and that the mesne profit can be awarded by that court who can pass a decree for possession. In the present case as stated above, the Reference Court has no jurisdiction to restore the possession and consequently, pass a decree for possession in a reference under Section 35(3) of the Act. Under the circumstances also, the directions issued by the reference court in the award to pay mesne profit as compensation, are also required to be quashed and set aside as the same is without jurisdiction.

40. Before parting with the present judgement, it is required to be noted and it is brought to our notice that in more than 100 cases like present one, the concerned Special Land Acquisition Officer, Mehsana has referred the references to the reference court which have been made after a period of more than 20 years and the very reference court (Mr.J.R. Shah, Principal Senior Civil Judge, Mehsana) has entertained the reference applications and has acted beyond the scope of the reference and has passed the judgement and awards with the similar findings and observations which are without jurisdiction. Thus, we are of the considered opinion that the conduct of the reference court (Mr.J.R. Shah, the then Principal Senior Civil Judge, Mehsana) is required to be considered seriously on administrative side. Under the circumstances, the registry is directed to place the judgement and award impugned in these appeals, along with other similar judgement and awards passed by the reference court (Mr.J.R. Shah, the then Principal Senior Civil Judge, Mehsana) before the Hon'ble the Chief Justice and concerned Administrative Judge to consider the same on administrative side.

41. Similarly, even the 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 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 judgement and award dtd. 15/10/2005 passed by the learned Principal Senior Civil Judge, Mehsana (Mr.J.R. Shah) in Land 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 power, authority, competence and/or jurisdiction to decide the dispute de-hors the reference made to him.

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 Section 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 unauthorised 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 to award compensation by way of mesne profit declaring compensation of the acquiring body as illegal and unauthorised.

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 tasking 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 Section 35(3) of the Act.


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