2006 Supreme(Guj) 827

Gujarat High Court
Judgename :AKSHAY H.MEHTA
PATEL SHAMBHUBHAI BHAICHANDDAS - Appellant
Versus
STATE OF GUJARAT - Respondent
FIRST APPEAL 2570 Of 1999
Decided On : 12/27/2006

Headnote:Point in Issue :

       Whether appellants are entitled to additional compensation beyond the amount determined by Court for the land under temporary occupation by respondent?

       Head Note :

       Land Acquisition Act, 1894 (Central Act 1 of 1894) - Sections 35(1), 35(3), 36 and 40 - Land Acquisition (Compensation) Rules, 1963 - Rule 4 - Civil Procedure Code, 1908 (Central Act 5 of 1908) - Section 2(12), Order 20 Rule 12 - Temporary occupation - Compensation - Quantum of - Award by Court - Challenged on ground of inadequacy - Sustainability - Temporary occupation can only be for three years under the Act and compensation for the period can be determined by agreement between Collector and person interested in the land - In case of dispute with regard amount of compensation reference can be made to Court - In the case however, compensation so determined by Collector was received by person concerned and it was raised from time to time - The revision in the amount of compensation was accepted by appellants - On expiration of statutory period of three years by implication new agreement has come into existence - Therefore, possession after the period of three years the respondents cannot be said to be in unauthorised possession of land and, therefore, appellant cannot claim mesne profits for the period - However, the appellants are entitled to have Addl. compensation for a period of three years from date of occupation - For the period beyond statutory period of three years if appellants want additional compensation they have to approach the Civil Court under Common law as subsequent retention of possession is on account of consensus arrived at amongsts the parties which is contractual agreement and not under the Act - It is because Act does not given permission to retain possession beyond period of three years - As a result respondent shall pay Addl. compensation at the rate of Rs. 0.50 paise per sq. mtr. for a period of three years with interest.

       Held :

       If the present facts are taken into consideration, the rent was revised on 01.01.1997 and raised to Rs. 2.50 Paise; again on 01.01.2000 it was raised to Rs. 3.75 and lastly on 01.01.2005 it was raised to Rs. 5.00 paise and the possession of the land is allowed to be retained beyond the period of three years. Thus, periodically the rent has been revised and increased by the ONGC. The revision has been accepted by the persons interested in the land. This fact is not disputed by Mr. Patel. The ONGC has, therefore, retained possession with the consent of the persons interested in the land. Thus, upon expiration of agreed term or statutory period by implication new agreement has come into existence. In the circumstances, even when after the expiration of agreed period the occupant has continued to remain in possession, it cannot be said to be unauthorized possession. [Para 5.3]

       In the instant case, there is no evidence on record to show that the Collector had ever made any attempt to ascertain whether any damage has been caused to the land in question. Further it also does not appear that any attempt has been made by him, to recover the possession from the ONGC and to hand it over to the appellants. It also does not appear from the record that the appellants had ever made any application or request in writing to the Collector to recover the possession from the ONGC and to return the same to them. On the contrary, it appears that the ONGC is still in possession of the land and it has been paying the rent to the appellants. Periodically the rent is being revised and till this date it has been revised four times by negotiations between the parties and the revision is always upward.

       Accrual of right to have mesne profits presupposes a wrong, and possession of the person has to be found illegal or wrongful. It is already discussed that the appellants have allowed the ONGC to retain possession beyond the period of three years and they have also negotiated the revision and accepted the rent all throughout. Hence the possession of ONGC cannot be termed as unauthorized or wrongful or illegal. In that event, the question of awarding mesne profits does not arise at all. Besides as per Order 20 Rule 12 the decree for mesne profits is required to be passed where a suit is filed for recovery of possession of immovable property and for mesne profits. Admittedly, till date there is no demand made by the appellants for recovery of possession nor for mesne profits. On the contrary, they have permitted the occupier i.e. ONGC to continue with the possession while accepting the rent. Under the circumstances, they cannot now be permitted to claim mesne profits. [Para 5.6]

       For claiming mesne profits in appropriate case, such person has to take recourse to remedy under common law when the possession of the land in question is stated to be unauthorized or wrongful. So far as the present case is concerned, in view of the fact that the possession is not unauthorized, the appellants are not entitled to receive any mesne profits. However, the appellants are entitled to have additional compensation for a period of three years commencing from the date of occupation at the rate of Rs. 0.50 paise per sq. mtr. For the period beyond three years, if the appellants want additional compensation, they have to approach the Civil Court under common law as subsequent retention of possession is on account of consensus arrived at amongst the parties which is contractual arrangement and not under the Act. [Para 10.1]

       Law Laid Down :

       Wrongful possession and enjoyment of immovable property is liable to mesne profits.

       Case Law Analysis :

       Gopalkrsihna Pillai & Ors. vs. Meenakshi Ayal & Ors., AIR 1967 SC 155 [Para 11.2];; Shyam Charan vs. Sheoji Bhai & Anr., AIR 1977 SC 2270 [Para 11.3];; Lucy Kochuvareed vs. P. Mariappa Gounder & Ors., AIR 1970 SC 1214 [Para 11.4];; Mahant Narayana Dasjee Varu & Ors. vs. The Board of Trustees, AIR 1996 SC 1231 [Para 11.7];; M/s. Marshall Sons & Co. (I) Ltd. vs. M/s. Sahi Oretrans (P) Ltd., & Anr., AIR 1999 SC 882 [Para 11.8].-Distinguished

       Delhi Cloth & General Mills vs. Its Workmen, AIR 1967 SC 469 = 2006 (5) SCC 127 [Para 3.2];; Brij Behari Sahan vs. State of U.P., 1986 (3) SCC 564 [Para 3.2];; Union of India vs. Banvarilal & Sons (P) Ltd., 2004 (5) SCC 304 = 2006 (2) GLR 1152 [Para 3.2];; Basant Kumar vs. Union of India 1996 (11) SCC 542 [Para 3.2].-Relied on

       Conclusion :

       The appellants are not entitled to manse profits for occupation of land beyond the statutory period of three years. For that they may approach the Civil Court under Comman Law - However, appellant entitled to additional compensation @ 0.50 paise per sq. mtr. for a period of three years with interest.

       Cases Referred :

       The Delhi Cloth & General Mills Co. Ltd., vs. The Workmen & Ors., AIR 1967 SC 469;; Brij Behari Sahai vs. State of Uttar Pradesh, 1986 (3) SCC 564;; Patel Govindbhai Ambaram vs. Special Land Acquisition Officer & Anr., 2006 (2) GLR 1152;; Atchamma vs. Rani Reddy, AIR 1958 AP 517 = 1957 ILR AP 52.

       Decided in Favour of :

       Appellant

       Appeals Partly Allowed