[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 trial Court in Regular Civil Suit No.203 of 1998 by which the learned trial Court has partly decreed the said suit directing the appellant herein – original defendant to pay a sum of Rs.34,255/ with 18% interest from 07.12.1996 and held that the plaintiff is entitled to the yearly rent at the rate of Rs.1000 per Are from 07.12.1997 as well as the impugned judgment and order dated 27.02.2002 passed by the learned Appellate Court i.e. the learned 3rd Extra Assistant Judge, Mehsana in Regular Civil Appeal No.36 of 2000 by which the learned Appellate Court has dismissed the said Appeal preferred by the appellant herein – original defendant and confirmed the judgment and decree passed by the learned trial Court. [2.0] That the appellant and the respondent herein entered into an Agreement under which it was agreed mutually between the parties to temporary acquire the land bearing survey No.193 of village Patanpura, owned by the respondent herein for a period of one year – till the ONGC wishes at the yearly rent of Rs.150 per Are. That the said agreement was entered into on 07.12.1996 for temporary acquisition on terms and conditions as mentioned in the said agreement/kabja pavti. It appears that as the ONGC continued with the possession even after a period of one year, the respondent herein – original plaintiff instituted Regular Civil Suit No.203 of 1998 claiming the rent at the rate of Rs.1000 per Are submitting that the earlier kabja receipt/agreement was only for temporary acquisition of the land only for a period of one year at the yearly rent of Rs.150 per Are and not for all time to come and/or as per the wish of the ONGC. It was also prayed to return the possession to the plaintiff, as after a period of one year, the ONGC had no authority to continue with the occupation and possession of the land in question. It appears that in the alternative the plaintiff prayed to pay only rent at the rate of Rs.1000 per Are for the period after completion of one year.
[2.1] That the aforesaid suit was resisted by the appellant herein – original defendant by filing written statement at Exh.18. It was submitted that the plaintiff voluntarily entered into agreement for temporary acquisition for one year – till the ONGC wishes and requires. Therefore, it was submitted that the contention on behalf of the plaintiff that the temporary acquisition was only for a period of one year and thereafter ONGC had no authority to continue with the occupation and possession of the land thereafter cannot be accepted. It was further submitted that even annual rent for temporary acquisition was enhanced to Rs.250 per Are on completion of one year i.e. from 07.12.1997 which was accepted by the plaintiff. It was also contended on behalf of the ONGC that as the land in question is needed for the ONGC and as the ONGC is paying the rent for temporary acquisition regularly, it was requested to dismiss the suit.
[2.2] That the learned trial Court framed issues at Exh.22 and held that plaintiff has proved that the temporary acquisition was only for a period of one year from 07.12.1996 and for the period thereafter is entitled to Rs.34,255/ towards compensation and is entitled to the annual rent at the rate of Rs.1000 per Are with 18% interest from 07.12.1996 and consequently partly allowed the suit directing the appellant herein – original defendant to pay to the plaintiff Rs.34,255/ with 18% interest from 07.12.1997 and also declaring that the plaintiff is entitled to annual rent at the rate of Rs.1000 per Are from 07.12.1997.
[2.3] Feeling aggrieved with the judgment and decree dated 30.12.1999 passed by the learned trial Court in Regular Civil Suit No.203 of 1998, the appellant herein – original defendant preferred Regular Civil Appeal No.36 of 2000 and the learned Appellate Court dismissed the said Appeal by impugned judgment and order dated 27.02.2002 confirming the judgment and decree passed by the learned trial Court holding that the kabja pavti cannot be said to be a legal and valid contract between the parties and the ONGC can acquire the land only under Section 24 of the ONGC Act and cannot acquire by private negotiations.
[2.4] Being aggrieved and dissatisfied with the judgment and order passed by both the Courts below, the appellant herein – original defendant – ONGC has preferred the present Second Appeal under Section 100 of the CPC.
[3.0] Shri R.R. Marshall, learned counsel appearing on behalf of the appellant – ONGC has vehemently submitted that both the Courts below have materially erred in not considering the kabja pavti as concluded contract between the parties. It is further submitted that both the Courts below have materially erred in holding that except Section 24 of the ONGC Act, 1959, the ONGC cannot acquire the land by private negotiations. It is further submitted by Shri Marshall, learned counsel appearing on behalf of the appellant that as such the ONGC acquired land temporarily by private negotiations and for a period of one year – till the ONGC wishes, on the terms and conditions mentioned in the kabja pavti. It is submitted that though initially the ONGC temporarily acquired the land of the plaintiff by private negotiations for a period of one year at the annual rent of Rs.150 per Are, thereafter, after completion of one year and as the land was further required, the annual rent was increased to Rs.250 per Are after completion of one year i.e. from 07.12.1997 and the plaintiff also accepted the same. It is submitted that temporary acquisition by private negotiations is permissible.
[3.1] Shri Marshall, learned counsel appearing on behalf of the appellant has further submitted that in the present case as such the ONGC returned the possession to the original plaintiff on 24.12.1999 and in the meantime after completion of one year, the plaintiff was paid enhanced annual rent after completion of one year which has been accepted by the plaintiff without any protest.
Making above submissions, it is requested to allow the present Second Appeal.
[4.0] Present Second Appeal is opposed by Shri Pushpadatta Vyas, learned advocate appearing on behalf of the respondent herein – original plaintiff. It is submitted that both the Courts below have rightly held that the kabja receipt between the parties cannot be said to be a concluded contract/ agreement. It is submitted that even otherwise the said kabja receipt was an unregistered kabja receipt/agreement and if it is to be considered for more than one year, it was required to be registered and therefore, the ONGC cannot rely upon the said unregistered kabja receipt / agreement. It is submitted that the original plaintiff agreed for temporary acquisition of the land by the ONGC only for a period of one year at the annual rent of Rs.150 per Are and after completion of one year, the ONGC had no authority to continue the occupation and possession of the land that too at the annual rent of Rs.150 per Are. It is submitted that on appreciation of evidence both the Courts below have rightly held that the plaintiff is entitled to the annual rent at the rate of Rs.1000 per Are for a period of one year from 07.12.1997. Therefore, it is requested to dismiss the present Second Appeal.
[5.0] Heard learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as the documentary evidence. It is not in dispute that under the kabja pavti, which can be termed as an agreement, the land of the original plaintiff was agreed to be given on temporary acquisition by negotiation to the ONGC at annual rent of Rs.150 per Are. The said kabja pavti is also signed by the plaintiff as well as the officer of the ONGC. It also appears from the kabja pavti that the same contains certain terms and conditions and as per the conditions mentioned in the said kabja pavti, it was agreed by the original plaintiff to give the possession of the land to the ONGC on temporary basis for one year – till the ONGC wishes / requires. It is also provided in the said kabja pavti that the appellant – ONGC was required to pay compensation for the standing crop, trees, pipeline etc. to the plaintiff within a period of 1 & ½ months as determined and mentioned in the said kabja pavti. It is also provided in the said kabja pavti that if in future the ONGC is required to restore the possession of the land as cultivable land, if during the temporary occupation the ONGC finds oil/gas from the land in question, the ONGC has to pay compensation as determined by the Government and till then the annual rent is to be paid as mentioned in the said kabja receipt. Considering the aforesaid kabja pavti signed by the respective parties, it cannot be said that the same is not a concluded and/or legal and/or valid contract between the parties. Both the Courts below have materially erred in not accepting the kabja pavti/agreement as a legal and valid contract between the two parties. Considering the fact that under the aforesaid kabja pavti/agreement, the plaintiff agreed to hand over the possession of the land to the ONGC on temporary basis and permitted the ONGC to occupy and possess the land temporarily on payment of the annual rent provided in the said kabja receipt. The same was not required to be registered.
[5.1] Even both the Courts below have materially erred and committed a serious error of law in coming to the conclusion that the ONGC can acquire the land only under Section 24 of the ONGC Act and cannot acquire by private negotiations. Even the ONGC can acquire the land temporarily under the provisions of the Land Acquisition Act also as provided under Section 35 of the Land Acquisition Act. However, when the land is acquired temporarily by the ONGC, it can be done by private negotiations also as per the terms and conditions agreed between the parties and on the annual rent as agreed between the parties.
[5.2] Considering aforesaid facts and circumstances, both the Courts below have materially erred in holding that after a period of one year the ONGC had no authority to occupy and/or retain the possession after a period of one year and both the Courts below have misinterpreted and misconstrued the kabja pavti while holding that the land in question was temporarily acquired only for a period of one year from 07.12.1996. Considering the kabja pavti as a whole and the conditions mentioned in the said kabja pavti, it cannot be said that the land was temporarily acquired only for a period of one year. If such a interpretation is accepted, in that case, condition No.1 of the kabja pavti / 2nd part of condition No.1 would become redundant by which it is provided that the temporary occupation and possession is given for a period till ONGC wishes / requires.
[5.3] It is also required to be noted that in the present case even after completion of one year period, the ONGC agreed to pay the enhanced annual rent at the rate of Rs.250 per Are from 07.12.1997 which the plaintiff has accepted. Under the circumstances, the learned trial Court has materially erred in partly decreeing the suit holding that the plaintiff is entitled to the annual rent at the rate of Rs.1000 per Afrom 07.12.1997 and that the plaintiff is entitled to Rs.34,255/ along with the interest at the rate of 18% from 07.12.1996 and the learned Appellate Court has materially erred in confirming the said judgment and decree.
[6.0] In view of the above and for the reasons stated above, the present Second Appeal succeeds and the impugned judgment and decree dated 30.12.1999 passed by the learned Joint Civil Judge (Junior Division), Mehsana in Regular Civil Suit No.203 of 1998 partly decreeing the suit as well as the impugned judgment and order dated 27.02.2002 passed by the learned 3rd Extra Assistant Judge, Mehsana in Regular Civil Appeal No.36 of 2000 are hereby quashed and set aside. Present Second Appeal is accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to cost.
(M.R. Shah, J.) menon