FA/2317/2004 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2317 of 2004 To FIRST APPEAL No. 2322 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= DY.GENERAL MANAGER - Appellant(s) Versus PATEL VIRCHANDBHAI PARSOTTAMBHAI & 1 - Defendant(s) ========================================================= Appearance : MR RR MARSHALL for Appellant(s) : 1, RULE SERVED for Defendant(s) : 1, MR HL JANI APP for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/01/2008 ORAL JUDGMENT 1.0 These Appeals are directed against the judgment FA/2317/2004 2/7 JUDGMENT and order dated 22.04.2004 passed by the learned 4th Jt. Civil Judge (S.D.), Mehsana in Land Acquisition Reference Case Nos. 3602/2003 to 3607/2003 whereby, the said References were partly allowed. 2.0 The facts in brief leading rise to the filing of the present Appeals are as under ; 2.1 The Special Land Acquisition Officer, Mehsana initiated necessary proceedings under the provisions of the Land Acquisition Act, 1894 [for short, “the Act”] for acquiring the lands in question belonging to the respondents – claimants for temporary occupation. After hearing the owners of the lands in question, the Special Land Acquisition Officer fixed the market rate. 2.2 However, being dissatisfied by the said amount of compensation, References were preferred u/s. 35(3) of the Act, which were numbered as Land Acquisition Reference Case Nos. 3602/2003 to 3607/2003. The said Cases were taken up for hearing by the learned 4th Jt. Civil Judge (S.D.), FA/2317/2004 3/7 JUDGMENT Mehsana and after hearing learned counsel for both the sides, the learned Judge partly allowed the said References whereby, a specific direction was issued to the appellant - Corporation to pay additional amount of rent @ Rs.3.75 per sq. metre over and above the amount awarded by the Special Land Acquisition Officer per sq. metre from the date of taking possession. The appellant – Corporation was also directed to pay 10% average rise per year in the rent after the expiry of three years period from the date of taking the possession till the possession is handed over back to the respondents – claimants. Being aggrieved by the said order, the appellant has approached this Court by way of these Appeals. 3.0 Heard learned counsel for the respective parties and perused the documents on record. Considering the facts and circumstances of the case, it would be relevant to refer to a decision of this Court in the case of Patel Shambhubhai Bhaichanddas v. State of Gujarat & anr. reported in 2007 (1) G.L.R. 713 wherein, it has been held FA/2317/2004 4/7 JUDGMENT that Sections 35 & 36 of the Land Acquisition Act, 1894 provide for temporary occupation of land for public purpose for a maximum period of three years only and that the retention of the same beyond the said period would amount to unauthorized possession and, therefore, the Collector is empowered to refer the dispute as to compensation only for the agreed term or maximum period of three years only. The observations made in Para 5.4 of the said decision reads as under; “It is obvious that the Collector gets power to refer the dispute as to sufficiency of compensation which may arise within the agreed term or maximum period of three years. Any dispute which crosses this time-limit cannot be the subject-matter of the decision of the Court. In other words, the Collector's reference has to confine itself to the controversy arising within the prescribed period u/s. 35(1) of the Act. The matter of compensation is contained in Section 35 of the Act. In such reference, therefore, the Court is required to give its decision in relation to difference as to sufficiency of compensation only for maximum period of three years and not beyond that even when the reference is made within the stipulated period. Any decision on the reference beyond period of three years cannot be termed as legal and in accordance with the provisions of the Act and hence, it is without jurisdiction.” FA/2317/2004 5/7 JUDGMENT 4.0 Similar principle has been laid down in another decision of this Court in the case of Oil & Natural Gas Corporation Ltd. v. Pandya Prahladbhai Manilal & Ors. reported in 2007 (2) G.L.R. 1306. 5.0 In the present case, indisputably, the acquiring body, i.e. the O.N.G.C., has retained the possession of the land in question for the statutory period of more than three years. There does not appear to be any written or oral agreement between the parties to the effect that the acquiring body shall retain the land in question for the statutory period of more than three years in pursuance of any written or oral agreement; and if any such written or oral agreement is in existence between the parties, then such retention will be governed by the said written or oral agreement. But, in any case, the provisions of Section 35 of the Act shall not apply after the aforesaid temporary acquisition period is over. Therefore, evidently, the Court below has committed an error in entertaining the Reference in question. Keeping in mind the principle laid down by this FA/2317/2004 6/7 JUDGMENT Court in the above referred decisions, I am of the opinion that the impugned order passed by the Court below cannot be sustained. 6.0 In the result, the Appeals are partly allowed. The impugned order dated 22.04.2004 passed by the learned 4th Jt. Civil Judge (S.D.), Mehsana in Land Acquisition Reference Case Nos. 3602/2003 to 3607/2003 are quashed and set aside. The matters are remanded to the reference Court concerned and the said Court is directed to consider the same afresh, keeping in mind the law laid down by this Court in the above-referred decisions. The amount deposited by the appellant – Corporation with the reference Court shall be invested in Fixed Deposit with a nationalized Bank initially for a period of one year and the same shall be renewed from time to time till the final order is passed by the reference Court. It is clarified that this Court has not entered into the merits of the matter and the reference Court, while considering the matters afresh, shall not be influenced by the fact that this Court has quashed its earlier order. The Appeals stand disposed of accordingly. No order FA/2317/2004 7/7 JUDGMENT as to costs. Office is directed to send the R & P to the Court below forthwith. [K. S. JHAVERI, J.] Pravin/*