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Gujarat High Court · body

2018 DIGILAW 494 (GUJ)

GENERAL MANAGER v. PATEL BHIKHABHAI SOMDAS

2018-02-14

BELA M.TRIVEDI

body2018
JUDGMENT : 1. The present appeal has been filed by the appellant General Manager, ONGC, Mehsana, challenging the award dated 15.12.2001 passed by the Reference Court in LAR No.151 of 1998 made under Section 35(3) of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act”). 2. After having heard the learned Advocates for the parties, it appears that the land in question was temporarily acquired by the appellant in respect of which the Special Land Acquisition Officer, ONGC, Mehsana had passed the award on 14.3.1983 in LAQ Case No.86 of 1980, awarding the rental compensation at the rate of Rs.0.37 per sq. mtrs., for the land situated at Village Dhanpura, Taluka & District Mehsana. According to the respondent claimant, the Special Land Acquisition Officer having not awarded adequate compensation, the respondent had requested the Special Land Acquisition Officer to make a Reference to the Court under Section 35(3) of the said Act. Accordingly, the case was referred to the Reference Court, where the case was registered as LAR No.151 of 1998. The Reference Court directed the appellant to pay an additional amount of rent at the rate of Rs.2.65 per sq. mtrs., over and above the compensation awarded by the Special Land Acquisition Officer with interest at the rate of 9% per annum for the additional amount of rent, as also 20% more compensation under the head of ‘standing crops’, etc. 3. Being aggrieved by the said award, the present appeal has been filed by the appellant. 4. The bone of contentions raised by the learned Advocate Ms.Brahmbhatt for the appellant is that the Reference made by the Special Land Acquisition Officer was dehors the provisions contained in Section 35(3) of the said Act, as also dehors the legal position settled by this Court in case of Oil and Natural Gas Corporation Ltd. Vs. Sankarji Hemaji & Anr., reported in 2008(2) GLR 1226 . 5. However, the learned Advocate Mr.Amit Nanavati for the respondent No.1 has submitted that there being no period of limitation prescribed in Section 35(3) of the said Act, the award made by the Reference Court may not be disturbed. 6. Sankarji Hemaji & Anr., reported in 2008(2) GLR 1226 . 5. However, the learned Advocate Mr.Amit Nanavati for the respondent No.1 has submitted that there being no period of limitation prescribed in Section 35(3) of the said Act, the award made by the Reference Court may not be disturbed. 6. In the instant case, it is not disputed that the land was temporarily acquired under Section 35 of the said Act and the Special Land Acquisition Officer had made the award on 14.3.1983, whereas the Reference was made to the Reference Court in 1998 at the request of the respondent claimant. Under the circumstances, the Reference was sought to be made after a period of about 15 years of the award made by the Special Land Acquisition Officer. 7. At this juncture, it would be beneficial to reproduce Section 35 of the said Act, which reads as under:- “35. Temporary occupation of waste or arable land, procedure when difference as to compensation exists.(1) Subject to the provisions of Part VII of this Act, whenever it appears to the [appropriate Government] that the temporary occupation and use of any waste or arable land are needed for any public purpose, or for a Company, the appropriate Government may 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 commencement of such occupation. (2) The Collector shall thereupon 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 materials (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. (3) 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.” 8. (3) 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.” 8. From the bare reading of the said provision, it appears that there is no period of limitation prescribed under Section 35(3) of the said Act for the Collector to make Reference to the Court, however, this Court has time and again held that the Reference could not be made under Section 35(3) of the said Act beyond the period of three years. In case of Oil and Natural Gas Corporation Ltd. Vs Pandya Prahladbhai Manilal and Ors., reported in 2006(3) GLH 662 , this Court, after considering the provisions contained in Section 35(3) of the said Act, held as under:- “10. Reading the aforesaid provisions, it is clear that temporary acquisition is permissible for a period of three years only. At the time of acquiring the land for a period of three years as envisaged under section 35 of the Act, it is open to the claimants to ask for Reference under section 35 (3) of the Act. The Court is, therefore, required to determine the fixation of compensation, either in a gross sum of money, or by monthly or other periodical payments [which is popularly known by all concerned as “rent”] in such Reference to find out whether compensation, either in a gross sum of money, or by monthly or other periodical payments fixed by Land Acquisition Officer is proper or not. Looking to the scheme of the Act, it is clear that beyond three years, the provisions of section 35 of the Act is not applicable. On the expiration of the term of temporary acquisition of three years, so far as the Collector is concerned, his duties are prescribed in Sections 36 (2) and 37 of the Acts, i.e.: (1). make or tender to the persons interested compensation for the damage (if any) done to the land and not provided for by the agreement; (2). restore the land to the persons interested therein; and, (3). if there is any difference as to the condition of the land at the expiration of the term, or as to any matter connected with the said agreement, refer such difference to the decision of the Court. 11. restore the land to the persons interested therein; and, (3). if there is any difference as to the condition of the land at the expiration of the term, or as to any matter connected with the said agreement, refer such difference to the decision of the Court. 11. It is, therefore, not open to the Collector to make a Reference for determining the compensation, either in a gross sum of money, or by monthly or other periodical payments for the subsequent period after expiration of the temporary acquisition period by resorting to Sec. 35 (3) of the Act. If the acquiring body has entered into any written or oral agreement with the landowners, the acquiring body may retain the lands in pursuance of such oral or written agreement, if any, and such retention will be governed by the oral or written agreement, but certainly the provisions of section 35 of the Act would have no application after the aforesaid temporary acquisition period is over. Whatever amount is fixed between the parties will be governed by the new contract, if any, between the landowners and the acquiring body. Such retention of possession or fixation of amount of rent will be governed under ordinary law, and not under the Act. If the acquiring body has retained the possession by separate agreement between the acquiring body and the landowners, the same would be subject to an agreement between the parties, but in such an eventuality, if there is any dispute between the acquiring body and landowners, the Collector cannot make a reference for such period as if it is a reference under section 35 (3) of the Act. In other words, the Collector has no power to make a reference for fixing the amount of rent or compensation for a period exceeding three years from the commencement of such occupation. In a Reference under section 35(3) of the Act, the Court can only determine compensation/amount in connection with the period of three years from the date of taking possession. Considering the aforesaid provisions, it is clear that interested persons can ask for reference to the Court under section 35(3) of the Act if such persons are not satisfied by the sufficiency of the compensation or apportionment fixed by the Collector at the time of taking possession for occupation of the land for a temporary period of three years. Considering the aforesaid provisions, it is clear that interested persons can ask for reference to the Court under section 35(3) of the Act if such persons are not satisfied by the sufficiency of the compensation or apportionment fixed by the Collector at the time of taking possession for occupation of the land for a temporary period of three years. After the aforesaid period is over, there are two options available: (1). Under section 36 (2), on the expiration of the term, if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term, and if the persons interested shall so require, the appropriate Government can proceed under this Act to acquire the land as if it was needed permanently for a public purpose or, if there is any difference as to the condition of the land, make Reference to the Court u/s 37; (2). The landowners and the acquiring body may enter into independent contract or agreement but the same is outside the purview of the provisions of the Act.” 9. Yet in another case of Oil and Natural Gas Corporation Ltd. Vs. Sankarji Hemaji & Anr. (supra), the Division Bench, after considering the said provision under Section 35(3) of the said Act in the light of Article 137 of the Limitation Act, held as under:- “25. ... 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 sec.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 Sec.35 of the Act. 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 Sec.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 sec.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. 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 sec.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 sec.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 Vs. Thakoredas, reported in (1997) 11 SCC 412 . 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.” 10. In view of the afore-stated legal position, there remains no shadow of doubt that the Reference made by the Special Land Acquisition Officer under Section 35(3) of the said Act beyond the period of three years and after about fifteen years of the award was clearly time barred and not maintainable in the eye of law. The Reference Court, therefore, has wrongly rejected the contentions raised by the appellant before it as regards the Reference being time barred and not maintainable. 11. In that view of the matter, the impugned award passed by the Reference Court deserves to be set aside and is hereby set aside. 12. The First Appeal stands allowed accordingly.