SCA/706320/2008 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7063 of 2008 To SPECIAL CIVIL APPLICATION No. 7070 of 2008 With SPECIAL CIVIL APPLICATION No. 6719 of 2008 To SPECIAL CIVIL APPLICATION No. 6726 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 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 ? ========================================= = OIL & NATURAL GAS CORPORATION LIMITED - Petitioner(s) Versus MANGUBHAI RAMJIBHAI - Respondent(s) ========================================= = Appearance : MR RR MARSHALL for Petitioner(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 23/07/2008 SCA/706320/2008 2/14 JUDGMENT ORAL JUDGMENT 1. As common question of law and facts arise in these group of petitions and they are between the same parties, all these petitions are being disposed of by this common judgement and order. 2. Special Civil Applications Nos. 7063/2008 to 7070/2008 are filed by the common petitioner-ONGC for an appropriate writ, order and direction quashing and setting aside the common judgement and order dated 30/07/2007 passed by the learned 5th Additional Senior Civil Judge & Judicial Magistrate First Class, Bharuch in Miscellaneous Civil Application Nos. 86/2003 to 88/2003 and 91/2003 to 93/2003 dismissing the same and not correcting/modifying the part of the award dated 15/01/2003 passed in Land Reference Case Nos. 15/1994 to 22/1994 whereby the benefits under the Land Acquisition Act were directed to be given from 12/11/1989. 3. Special Civil Application Nos. 6719/2008 to 6726/2008 are also filed filed by the common petitioner-ONGC to quash and set aside the common judgement and order dated 18/03/2008 passed by the learned 4th Additional Senior Civil Judge & Judicial Magistrate First Class, Bharuch below Exhs. 33 & 34 in Land Reference Execution Petition Nos. 23 to 30/2003 directing to issue recovery warrant under Order 21 Rule 30 of the Code of Civil Procedure to recover the remaining amount of award passed in Land Acquisition Reference No. 15/1994. SCA/706320/2008 3/14 JUDGMENT 4. Shri R.R. Marshal, learned advocate appears on behalf of the petitioner-ONGC in all the petitions, Shri Sunit Shah, learned Government Pleader appears with Shri Hemang Parikh, learned AGP on behalf of the respondent-State and Shri S.P. Majmudar, learned advocate appears on behalf of the respondents-original owners-claimants in Special Civil Application No. 7063/2008 to 7070/2008. 5. Few facts are necessary for determination of the present Special Civil Applications. 6. The lands of the respondents-original owners-claimants were temporarily acquired by ONGC by private negotiation on 12/11/1989 and thereafter subsequently it was decided to permanently acquire the lands of the respondents-original owners-claimants and, therefore, notification under Section 4 of the Land Acquisition Act (hereinafter referred to as “the Act”) was published on 25/01/1992. Notification under Section 6 of the Act came to be published on 09/07/1992 and thereafter award under Section 11 of the Act came to be declared by the Land Acquisition Officer on 26/09/1993. Being aggrieved and dissatisfied with the award declared by the Land Acquisition Officer, the respondents-original owners-claimants submitted Land Reference Applications for enhancement of the compensation and the same were referred to the District Court, Bharuch, which were numbered as Land Reference Case Nos. 15/1994 to 22/1994. The Reference Court partly allowed the Reference Cases vide judgement and award dated 15/01/2003 and directed to give statutory benefits available under the Act inclusive of awarding interest on the enhanced amount of compensation from 12/11/1989 i.e. from the date on which SCA/706320/2008 4/14 JUDGMENT possession of the land in question was temporarily taken by ONGC. The petitioner-ONGC preferred Miscellaneous Civil Applications Nos. 86/2003 to 88/2003 & 91/2003 to 93/2003 for ratification of the error and modification of the award declared by the Land Acquisition Officer submitting that by mistake interest has been awarded from 12/11/1989 and instead the same should be from the date of actual possession under the Land Acquisition Act. During the pendency of the aforesaid applications, the respondents-original owners-claimants filed Land Reference Execution Petition Nos. 23/2003 to 30/2003. Applications were submitted before the learned Executing Court to stay the Land Reference Execution Petitions as Miscellaneous Civil Applications were pending. The learned Executing Court stayed the Land Reference Execution Petitions and passed certain strictures against the Officers of ONGC and asked for bank guarantee. Being aggrieved and dissatisfied with the strictures and the order passed by the learned Executing Court staying the Land Reference Execution Petitions, the petitioner-ONGC has preferred Special Civil Application Nos. 15714 to 15721/2004. The aforesaid Special Civil Applications came to be admitted by this Court granting stay. Thereafter, Miscellaneous Civil Application Nos. 86/2003 to 88/2003 and 91/2003 to 93/2003, which were submitted by the petitioner-ONGC for correction/modification of the judgement and order passed in Land Reference Case No. 15/1994 to 22/1994 to modify the date of the awarded interest on the enhanced amount of compensation from the date of the award and not from 12/11/1989, came to be finally decided and disposed of by the learned 5th Additional Senior Civil Judge and Judicial Magistrate First Class, Bharuch on 30/07/2007 by holding that such an application under Sections 151 or 152 of SCA/706320/2008 5/14 JUDGMENT the Code of Civil Procedure is not maintainable. Being aggrieved and dissatisfied with the common order dated 30/07/2007 passed by the learned 5th Additional Senior Civil Judge and Judicial Magistrate First Class, Bharuch in Miscellaneous Civil Application Nos. 86/2003 to 88/2003 and 91/2003 to 93/2003, the petitioner-ONGC has preferred Special Civil Application Nos. 7063/2008 to 7070/2008. On dismissal of Miscellaneous Civil Application Nos. 86/2003 to 88/2003 and 91/2003 to 93/2003, the learned Executing Court passed final order below Exhs. 33 and 34 dated 18/03/2008 in Land Reference Execution Petition Nos. 23/2003 to 30/2003 directing to issue recovery warrant under Order 21 Rule 30 of the Code of Civil Procedure to recover the remaining amount of award passed in Land Acquisition Reference No. 15/1994. Being aggrieved and dissatisfied with the order passed by the learned 4th Additional Senior Civil Judge and Judicial Magistrate First Class, Bharuch dated 18/03/2008 below Exhs. 33 and 34 in Land Reference Execution Petition Nos. 23/2003 to 30/2003, the petitioner-ONGC has preferred Special Civil Application Nos. 6719/2008 to 6726/2008. 7. Though served, nobody appears on behalf of the respondents-original owners-claimants in Special Civil Application Nos. 6719/2008 to 6726/2008. 8. Shri R.R. Marshal, learned advocate appearing on behalf of the petitioner-ONGC has vehemently submitted that the learned trial Court has materially erred in dismissing the Miscellaneous Civil Applications and in not correcting/modifying the judgement and award passed in Land Reference Case Nos. 15/1994 to 22/1994 to the extent it awarded the interest on SCA/706320/2008 6/14 JUDGMENT the enhanced amount of compensation from 12/11/1989. It is submitted that in fact notification under Section 4 of the Land Acquisition Act came to be published on 25/01/1992 and, therefore, interest under the Land Acquisition Act could not have been awarded for the period prior to the notification under Section 4 of the Act. It is further submitted that the land was temporarily acquired by private negotiation by ONGC on 12/11/1989 and for the period during the said temporary acquisition, the respondents-original claimants-owners were paid the rent as required to be paid under the law. Therefore, it is submitted that as such the respondents-original claimants- owners would be entitled to interest on the enhanced amount of compensation only from the date of the award under Section 11 i.e. 26/09/1993 and not prior thereto. It is submitted that when the aforesaid error was pointed out to the learned Reference Court by submitting the aforesaid applications, to do complete substantial justice, the learned Reference Court ought to have allowed the applications and ought to have corrected the mistake/error and ought to have passed an order that the respondents-original claimants would be entitled to interest on the enhanced amount of compensation from the date of the award i.e. 26/09/1993. It is submitted by Shri Marshal, learned advocate appearing on behalf of the petitioner-ONGC that the learned Reference Court has taken a too technical view while rejecting the Miscellaneous Civil Applications, observing that the remedy available to the petitioner-ONGC would be either to file a review under Order 47 and/or by way of an appeal before the higher forum and, therefore, the application under Sections 151 or 152 of the Code of Civil Procedure is not maintainable. It is submitted that the learned Reference Court has materially erred in SCA/706320/2008 7/14 JUDGMENT holding that there is no arithmetic/clerical error apparent while passing and awarding interest from 12/11/1989. 9. It is also further submitted by Shri Marshal, learned advocate appearing on behalf of the petitioner-ONGC that if the Special Civil Applications against the order passed in Miscellaneous Civil Application Nos. 86/2003 to 88/2003 and 91/2003 to 93/203 are allowed in that case Special Civil Application Nos. 6719/2008 to 6726/2008 consequently are to be allowed as except the interest on the enhanced amount of compensation between 12/11/1989 to 26/09/1993, entire awarded amount has been paid and, therefore, it is requested to allow the aforesaid Special Civil Applications also. 10. Shri Marshal, learned advocate appearing on behalf of the petitioner-ONGC has relied upon the decision of the Hon'ble Supreme Court in the case of MANOHAR LAL CHOPRA Vs SETH HIRALA reported in AIR 1962 SC 527. It is submitted that even though the aforesaid Miscellaneous Civil Applications are submitted under Sections 151 or 152 of the Code of Civil Procedure, the learned Reference Court ought to have considered the same as under Order 47 Rule 1 of the Code of Civil Procedure as the said applications were to correct the error and modify the judgement and award passed in Land Reference Cases. 11. Special Civil Application Nos. 7063/2008 to 7070/2008 are opposed by Shri S.P. Majmudar, learned advocate appearing on behalf of the respondents-original claimants-owners by submitting that as such, the applications submitted by the petitioner-ONGC under Section 151 or 152 of the Code of Civil SCA/706320/2008 8/14 JUDGMENT Procedure were not maintainable. It is submitted that proper remedy available to the petitioner-ONGC was either to submit applications for review under Order 47 and/or to file substantive First Appeals. It is further submitted that there was no error apparent on the record and, therefore, the review application under Order 47 are also not maintainable. It is submitted that the learned Executing Court cannot go beyond the decree and when the learned trial Court has specifically observed that there was no mistake at all, it cannot be said to be any error arithmetic and/or clerical as rightly held by the learned trial Court. Shri Majmudar, learned advocate has relied upon the decision of the Hon'ble Supreme Court in the case of BAI SHAKRIBEN (Dead) by NATWAR MELSINGH & ORS Vs. SPECIAL LAND ACQUISTION OFFICER & ANR reported in 1996 (3) GCD 350 (SC) in support of his above submission. 12. It is further submitted by Shri Majmudar, learned advocate appearing on behalf of the respondents-original claimants-owners that in fact on the day of the award two views were possible with regard to awarding the interest and, therefore, the learned Reference Court has rightly passed an order awarding the interest from the date of possession i.e. 12/11/1989. It is submitted that inherent powers under Section 15 of the Code of Civil Procedure cannot be exercised by the Court when there is a specific provision under the Code for filing an appeal. Therefore, it is submitted that the learned trial Court has rightly dismissed the Miscellaneous Civil Applications, which are submitted under Section 151 of the Code of Civil Procedure, and the learned Reference Court has rightly issued the recovery warrants to recover the remaining SCA/706320/2008 9/14 JUDGMENT amount of award passed in Land Acquisition Reference Case No. 15/1994. Therefore it is requested to dismiss the present Special Civil Applications. 13. Heard the learned advocates appearing on behalf of the respective parties. The only dispute between the parties is awarding the interest by the learned Reference Court from 12/11/1989 by holding that the respondents-original claimants would be entitled to interest on the enhanced amount of compensation from the date of possession. Therefore, the question is whether the respondents-original claimants would be entitled to interest on the enhanced amount of compensation from 12/11/1989 or from taking of the actual possession under the Land Acquisition Act i.e. declaration of the award under Section 11. It is required to be noted that the possession of the land in question was taken over by the petitioner-ONGC by private negotiation under temporary acquisition on 12/11/1989 and during the period of the said temporary acquisition in fact the respondents-original claimants have already been paid the rent and the same is not disputed by the respondents-original claimants. Notification under Section 4 of the Act came to be published for the first time on 25/01/1992 and, therefore, it can be said that the proceedings for permanent acquisition came to be initiated under the Land Acquisition Act on 25/01/1992. Therefore, the respondents-original claimants would be entitled to the interest on the enhanced amount of compensation as provided under the Land Acquisition Act only from the date the proceedings for permanent acquisition under the Act are initiated. For the period prior thereto there is no question of granting any benefit under the Land Acquisition Act. While passing the judgement SCA/706320/2008 10/14 JUDGMENT and award in Land Reference Case Nos. 15/1994 to 22/1994, the learned Reference Court had directed the petitioner-ONGC to pay the interest under the Act from the date of possession dated 12/11/1989. There the learned Reference Court has committed an error in considering the date of possession as 12/11/1989 so far as granting the benefit under the Land Acquisition Act is concerned. As stated hereinabove, prior to 1992, there was no proceedings under the Land Acquisition Act for permanent acquisition and for the period between 12/11/1989, till the proceedings for granting the acquisition came to be initiated under the Land Acquisition Act, the respondents-original claimants have already been paid the rent. Therefore, there is a clear error committed by the learned Reference Court in directing the petitioner-ONGC to award the interest and other benefits from 12/11/1989. To correct the said error, the petitioner-ONGC submitted Miscellaneous Civil Application Nos. 86/2003 to 88/2003 and 91/2003 to 93/2003. However, the same came to be titled under Section 151 or 152 of the Code of Civil Procedure invoking inherent powers. The learned advocate appearing on behalf of the respondents-original claimants has failed to satisfy the Court on the aspect whether the respondents- original claimants would be entitled to interest and other benefits under the Act for the period prior to initiation of the proceedings for permanent acquisition under the Act and/or from 12/11/1989. The learned advocate appearing on behalf of the respondents-original claimants has contested the petitions only on technical grounds rather than on merits by submitting that the applications under Section 151 of the Code of Civil Procedure were not maintainable. SCA/706320/2008 11/14 JUDGMENT “Section 151 of the Code of Civil Procedure says that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice.” However, such powers cannot be invoked if exercise may be conflicted with what has been expressly provided in the Code or against the initiation of the Legislature. Except other restrictions inherent powers under Section 151 of the Code of Civil Procedure can be exercised by the Court to make orders necessary for ends of justice. 14. Considering the above, when on merits it is found that the respondents-original claimants are not entitled to interest on the enhanced amount of compensation and other benefits with effect from 12/11/1989 (the day on which the possession was taken by private negotiation under temporary acquisition) and the learned Reference Court has awarded the interest from 12/11/1989 and when it is found that the respondents-original claimants are not entitled to the same, the impugned order passed by the learned trial Court awarding the interest under the Act from the date on which possession was taken by private negotiation under temporary acquisition deserves to be quashed and set aside. At the same time, the contention on behalf of the petitioner-ONGC that the respondents-original claimants would be entitled to interest from the date of passing the award under Section 11 i.e. 26/09/1993 also cannot be accepted. The respondents-original claimants are to be awarded interest from the date of notification under Section 4 of the Act. SCA/706320/2008 12/14 JUDGMENT 15. Now so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of BAI SHAKRIBEN (Dead) by NATWAR MELSINGH & ORS Vs. SPECIAL LAND ACQUISTION OFFICER & ANR (Supra) is concerned, the said decision will not be of any assistance to the respondents- original claimants in the facts and circumstances of the present case. In that case before the Hon'ble Supreme Court, notification under Section 4 of the Land Acquisition Act was published in the year 1975 and award was declared by the land Acquisition Officer under Section 11 of the Act on 19/05/1980. On Reference under Section 18 of the Act, judgement and decree/award came to be passed by the Reference Court on 20/08/1983. Thereafter, the State carried the matter in appeal and the claimants did not. The High Court dismissed the appeal of the State on 22/08/1984 and subsequently, the claimants submitted applications under Order 47 Rule 1 and Section 151 of the Code of Civil Procedure for amendment of the decree/award granting benefits of Sections 23 (1-A), 23(2) and 28 of the Act as amended by the Central Act, 68 of 1984. However, the High Court set aside the order passed by the learned Reference Court and the matter was further carried to Hon'ble Supreme Court and in light of the aforesaid facts, the Hon'ble Supreme Court has considered the case. Under the circumstances, in the facts and circumstances of the case, the said decision would not be of any assistance to the claimants. 16. As stated hereinabove, the learned advocate appearing on behalf of the respondents-original claimants is not in a position to satisfy the Court on merits whether the respondents-original claimants would be entitled to the interest on the enhanced amount of compensation as provided under SCA/706320/2008 13/14 JUDGMENT the Land Acquisition Act from 12/11/1989 or from the date of notification under Section 4 of the Act for permanent acquisition came to be issued on 25/01/1992. Even on merits also this Court is also of the opinion that the respondents- original claimants are not entitled to the interest on the enhanced amount of compensation from 12/11/1989 and they are entitled to interest under the Act on the enhanced amount of compensation from the date of notification under Section 4 i.e. 25/01/1992 as for the period between 1989 to 1992, possession was with ONGC under temporary acquisition by private negotiation and for which the respondents-original claimants were already paid the rent, which has not been disputed by the respondents-original claimants. Under the circumstances, the impugned order passed by the learned 5th Additional Senior Civil Judge, Bharuch dated 30/07/2007 in Miscellaneous Civil Application Nos. 86/2003 to 88/2003 and 91/2003 to 93/2003 deserves to be quashed and set aside and it is to be held that the respondents-original claimants would be entitled to the interest and other benefits under the Land Acquisition Act not from 12/11/1989 but from the notification under Section 4 of the Act i.e. 25/01/1992. Therefore, Special Civil Application Nos 7063/2008 to 7070/2008 are required to be partly allowed. In view of the above, even Special Civil Application Nos. 6719/2008 to 6726/2008 also deserves to be partly allowed by quashing and setting aside the orders passed by learned 4th Additional Senior Civil Judge & Judicial Magistrate First Class, Bharuch below Exhs. 33 and 34 in Land Reference Execution Petitions Nos. 23 to 30/2003 and the matters are required to be remanded to the learned Executing Court for deciding the same afresh in light of the observations made hereinabove and the interest is to be awarded to the SCA/706320/2008 14/14 JUDGMENT respondents-original claimants from 25/01/1992. The learned Executing Court is required to issue the recovery warrants to recover the balance amount accordingly. 17. For the reasons stated hereinabove, all the Special Civil Applications are allowed. It is held that the respondents- original claimants would be entitled to interest on the enhanced amount of compensation and other benefits under the Act with effect from 25/01/1992 and not from 12/11/1989 as ordered by the learned Reference Court in Land Reference Case Nos. 15 to 22/1994. Consequently, the orders passed by the learned Executing Court in Land Reference Execution Petition Nos. 23/2003 to 30/2003 are hereby quashed and set aside and the said matters are remanded to decide the same afresh to recalculate the amount payable to the respondents- original claimants on the aforesaid findings and calculating the interest from the date of 25/01/1992 instead of 12/11/1989. Rule is made absolute to the aforesaid extent in each of the petitions. There shall be no order as to costs. (M.R. SHAH, J.) siji