[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the appellant herein – original defendant – Oil & Natural Gas Corporation Limited (hereinafter referred to as “ONGC”) to quash and set aside the impugned judgment and decree dated 30.12.1999 passed by the learned Joint Civil Judge (J.D.), Mehsana in Regular Civil Suit No.301 of 1998, by which the learned trial Court has partly allowed the said suit directing the appellant herein – original defendant to pay Rs.1000/Are as yearly rent for the period of three years prior to filing of the suit and also decreeing the suit to the extent of Rs.22,080/ with 18% as well as the impugned judgment and order dated 27.02.2002 passed by the learned Appellate Court – learned 3rd Extra Assistant Judge, Mehsana in Regular Civil Appeal No.37 of 2000, by which the learned Appellate Court has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court. [2.0] Facts leading to the present Second Appeal in nutshell are as under:
[2.1] That the original plaintiff is the owner of land bearing survey No.287 situated at village Devinapura. That the appellant herein – original defendant – ONGC was required to occupy the land to the extent of 00736 and expressing the intention before the land owner. That an agreement was entered into 22.11.1989 and the commission was put in occupation for a term of one year and it was agreed to pay the rent at the rate of Rs.80/Are. That after a period of one year the ONGC did not vacate the land occupied by them which was given to them on lease initially at the rate of Rs.80/Are and therefore, the original plaintiff instituted the Regular Civil Suit No.301 of 1998 in the Court of learned Civil Judge (J.D.), Mehsana on 19.11.1998 for a declaration that the possession of the defendant – ONGC after 22.12.1992 is illegal and also claiming the damages. It is to be noted that as such the rent was increased to Rs.250/Are on and from 01.01.1997. That the suit was resisted by the defendant by filing the written statement at Exh.16. The learned trial Court framed the issues at Exh.20 and by judgment and decree dated 30.12.1999, partly allowed the said suit granting the relief only with respect to the damages and directing the appellant – original defendant – ONGC to pay the rent at the rate of Rs.1000/Are per annum for last three years from the date of filing of the suit and also decreed the suit to the extent of Rs.22,080/ with 18% interest.
[2.2] Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 30.12.1999 passed by the learned trial Court in Regular Civil Suit No.301 of 1998, the appellant herein – original defendant preferred Regular Civil Appeal No.37 of 2000 before the learned Appellate Court and the learned Appellate Court – learned 3rd Extra Assistant Judge, Mehsana by impugned judgment and order has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court.
[2.3] Feeling aggrieved and dissatisfied with the impugned judgment and decree/order passed by both the Courts below, the appellant herein – original defendant has preferred the present Second Appeal under Section 100 of the CPC.
[3.0] At the outset it is required to be noted that while admitting the present Second Appeal, the learned single Judge has framed the following substantial questions of law.
(i) Whether the courts below committed a substantial error of law in not accepting kabja pavti as a legal and valid contract between the two parties?
(ii) Whether the kabja pavti is legal if it is unregistered?
(iii) Whether the courts below committed a serious error of law in coming to the conclusion that ONGC can acquire land only u/s 24 of the Oil & Natural Gas Commission Act, 1959 and cannot acquire by private negotiation?
(iv) Whether the courts below committed a serious error of law in not holding the plaintiff as responsible for a void document if at all it is void and giving him that benefit pursuant to the said document?
[4.0] Shri R.R. Marshall, learned Counsel appearing on behalf of the appellant has vehemently submitted that both the Courts below have materially erred in decreeing the suit and as such declaring the possession of the ONGC after 1992 as illegal. It is submitted that as such both the Courts below have materially erred in misinterpreting the agreement entered into between the parties. It is submitted that as such both the Courts below have materially erred in not accepting the kabja pavti as a legal and valid contract between the parties. It is submitted that both the Courts below have materially erred in not accepting the kabja pavti and/or not holding the kabja pavti as legal on the ground that the same is unregistered. It is further submitted that the Courts below have materially erred in coming to the conclusion that ONGC can acquire the land only under Section 24 of the Oil & Natural Gas Commission Act, 1959 (hereinafter referred to as “ONGC Act”) and cannot acquire by private negotiations.
[4.1] It is further submitted that even otherwise both the Courts below have materially erred in awarding Rs.1000/Are per annum as rent to the original plaintiff without actual evidence on record with respect to the damages and not properly appreciating the fact that in fact on and from 01.01.1997 the ONGC itself increased the rent to Rs.250/Are per annum which has been accepted by the plaintiff.
Making above submissions, it is requested to allow the present Second Appeal.
[5.0] Present Second Appeal is opposed by Shri Pushpdatta Vyas, learned advocate appearing on behalf of the original plaintiff. It is submitted that in the facts and circumstances of the case, when the initial lease was only for a period of one year at the rate of Rs.80/Are per annum, thereafter any occupation and possession by the ONGC would illegal more particularly when it was against the consent of the land owner and therefore, both the Courts below have rightly held the possession of the ONGC after 1992 as illegal. It is submitted that as such the learned trial Court has rightly interpreted Section 24 of the ONGC Act and has rightly held that the ONGC can acquire the land only as provided under Section 24 of the ONGC Act. It is submitted that as it was found that the ONGC is getting the benefit of more than Rs.1000/Are per annum, the learned trial Court has rightly partly decreed the suit by directing the appellant to pay Rs.1000/Are per annum as rent since last three years from the date of filing of the suit. It is submitted that considering the fact that since last many years i.e. since 1989, the appellant is in possession of the land in question without any further extension of lease period. In the facts and circumstances of the case the learned trial Court has rightly partly decreed the suit and enhanced the rent.
[5.1] Shri Vyas, learned advocate appearing on behalf of the original plaintiff has heavily relied upon the following decisions of the Hon’ble Supreme Court as well as this Court in support of his prayer to dismiss the present Second Appeal.
1. Shivdev Singh and Anr. vs. Sucha Singh and Anr. (2000)4 SCC 326
2. Mohan Lal vs. Nihal Singh (2001) 8 SCC 584
3. Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. & Ors. (2003)2 SCC 111
4. Modern Food Industries (India) Ltd. vs. M.D. Juwekar 1998(1) GLH 232 (Decision of Division Bench of this Court) Making above submissions and relying upon above decisions, it is requested to dismiss the present Second Appeal.
[5.2] In reply, Shri Marshall, learned Counsel appearing on behalf of the appellant relying upon the additional affidavit filed on behalf of the appellant has submitted that as such the ONGC has periodically increased the rent every three years and the same has been accepted by the original land owner. It is submitted that from 01.01.1997 the rent was increased to Rs.250/Are and thereafter, periodically, the same has been increased. It is submitted that with effect from 01.01.2000 it was increased to Rs.375/Are; with effect from 01.01.2003 it was increased to Rs.500/Are; with effect from 01.01.2006 it was increased to Rs.750/Are; and with effect from 01.01.2010 it is increased to Rs.1000/Are. It is submitted that aforesaid increase in the rent has been accepted by the original land owner – original plaintiff without any protest and without raising any objection and by every increase it can be said to be a fresh renewed contract. Therefore, it is requested to allow the present Second Appeal.
[6.0] Heard the learned advocates appearing on behalf of respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as the evidence on record from the Record & Proceedings received from the learned trial Court. As stated herein above while admitting the present Second Appeal the learned single Judge has framed the aforesaid substantial questions of law and therefore, present being Second Appeal, this Court is required to consider the aforesaid substantial question of law only.
[6.1] It appears that as such the parties entered into agreement dated 22.11.1989 and the land in question was given on lease to the appellant – ONGC initially for a period of one year. At the relevant time rent was fixed at Rs.80/Are per annum. The same was infact increased to Rs.250/Are per annum with effect from 01.01.1997. That thereafter the plaintiff instituted the suit for declaration and claiming damages and to declare that the possession of the ONGC after 22.12.1992 is illegal. The learned trial Court held that the ONGC can temporarily acquire the land only maximum for a period of three years as per Section 24 of the ONGC Act and therefore, any possession after three years is illegal. When it was contended that thereafter the rent has been increased to Rs.250/Are per annum which has been accepted by the plaintiff and even the kabja pavti was issued, the learned trial Court has held the same as illegal as it is unregistered. Both the Courts below have also held that except as provided under Section 24 of the ONGC Act, the ONGC cannot acquire the land and/or get the possession even by private negotiations. The aforesaid cannot be accepted. By private negotiations the ONGC can get the possession and/or temporarily acquire the land. Both the Courts below have materially erred in disbelieving the kabja pavti solely on the ground that it was unregistered. Considering the fact that the increase in the rent i.e. Rs.250/Are with effect from 01.01.1997 was accepted by the land owner – original plaintiff as such it can be said to be a fresh renewal of the lease. It is to be noted that as such the plaintiff never prayed in the suit to return the possession and/or for recovery of the possession and as such the suit was filed only for declaration and the damages/mesne profit at the rate of Rs.1000/Are. It is to be noted that as such no issue has been framed with regard to the agreement being illegal. It is to be noted and it is not in dispute that the rent has been increased by the ONGC periodically every three years and the same has been accepted by the owner till date without any objection. As stated herein above, the rent has been increased to Rs.250/Are from 01.01.1997 and thereafter at the rate of Rs.375/Are from 01.01.2000 and at the rate of Rs.500/Are from 01.01.2003; at the rate of Rs.750/Are from 01.01.2006 and Rs.1000/Are from 01.01.2010, meaning thereby that at every increase in the rent which has been accepted by the land owner – original plaintiff, it can be said to be a fresh renewed lease by consent. Under the circumstances, both the Courts below have materially erred in granting the declaration that occupation and possession of the ONGC after 22.12.1992 is illegal. Even the damages awarded by the trial Court at Rs.1000/Are per annum is also without any substance. There is no evidence led before the learned trial Court on the basis of which the damages at the rate of Rs.1000/Are per annum could have been assessed. Under the circumstances, without evidence, awarding Rs.1000/Are per annum towards damages is based on no evidence, which cannot be sustained.
[6.2] Now so far as the reliance placed upon the decisions by the learned advocate appearing on behalf of the original plaintiff referred to herein above is concerned, on facts, none of the decision would be of any assistance to the plaintiff.
[7.0] In view of the above and for the reasons stated above, learned trial Court has materially erred in decreeing the suit (even partly) and the learned Appellate Court has materially erred in confirming the same. Under the circumstances, present Second Appeal succeeds and the impugned judgment and decree dated 30.12.1999 passed by the learned Joint Civil Judge (J.D.), Mehsana in Regular Civil Suit No.301 of 1998 as well as the impugned judgment and order dated 27.02.2002 passed by the learned Appellate Court – learned 3rd Extra Assistant Judge, Mehsana in Regular Civil Appeal No.37 of 2000 are hereby quashed and set aside. In the facts and circumstances of the case, there shall be no order as to costs.
Sd/ (M.R.SHAH, J.) Ajay