University Of Jammu Th. Its ... vs Non-Applicant/
2021 Latest Caselaw 215 j&K

                                                             Sr. No.

             HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU


                                         Pronounced on: 02.03.2021



                                                      CONC No. 119/2018
                                                         IA No. 02/2018
University of Jammu Th. Its Registrar



                                                   ....Applicant/Appellant(s)


                            Through: - Mr. Ajay Abrol, Advocate
             v/s


Zamindarab Sungli

                                              .... Non-applicant/Respondent(s)

                            Through: - Mr. V. R. Wazir, Sr. Advocate with
                                       Mr. Neeraj Magotra, Advocate


Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE


                              ORDER

1. This order shall dispose of the application seeking condonation of

delay in filling of an appeal under Section 52 of the J&K Land Acquisition

Act, 1990 against the award/judgment dated 22.12.2017 passed by the learned

District Judge, Bhaderwah in File No. 14/Ref under Section 18 of the Land

Acquisition, Act ( for brevity „the Act‟).

2. The facts giving rise to the filing of the instant time barred appeal

as are stated therein are that on the intend of Registrar, University of Jammu

for acquisition of land measuring 337 Kanals 6 Marlas for establishment of 2 Conc 119/2018

University Campus at Suingli, Tehsil Bhadarwah, a Notification under the Act

came to issued on 06.01.2006. Notifications under Sections 6, 7 and 17 of the

Act are also stated to have been issued on 01.03.2006. Notices under Section 9

and 9 (a) of the Act are also stated to have been issued on 01.03.2006. The

respondents-non-applicants herein are stated to have filed objections to the

notification dated 06.01.2006 (supra) contending therein that the

compensation for acquisition be paid at the @ Rs.3.00 lacs per kanal and one

person of each family whose land is being acquired be given an employment

in the University and also State land at appropriate place be allocated to the

land owners for business purposes.

3. It is being stated that the Collector after getting the cost of the

land under acquisition assessed by the Revenue Department and also keeping

in view the rates of land assessed for acquisition approved various rates

detailed out in the appeal. Final award is stated to have been made by the

Collector on 13.12.2007.

4. It is being stated that dissatisfied with the rates of compensation

awarded for the land, the respondents-non-applicants 3 to 83 sought reference

under Section 18 of the Act to the civil court for appropriate assessment. The

reference court is stated to have answered the said reference vide judgment

dated 28.05.2015, which however, is stated to have been set aside on the

motion of the appellant-applicant vide order dated 14.06.2017 and a de novo

enquiry convened by the reference court. The appellant-applicant herein after

being satisfied with the de novo enquiry order are stated to have filed

objections to the maintainability of the reference, inter alia among other on

the grounds, that the reference in question is not legally and factually

maintainable in as much as that the Collector before making reference failed 3 Conc 119/2018

to satisfy himself regarding the conditions as envisaged under Section 18 of

the Act. In the objections it is also stated to have been pleaded that the

intending department for the acquisition of the land is the department of

Higher Education, Govt. of J&K which had not been arrayed as party and

thus, the reference is bad for want of necessary party. Further in the objections

it is stated to have been urged that the reference is barred by limitation and

that the amount assessed by the Collector had been deposited with the

Collector and stands released in favour of the respondents-non-applicants.

5. It is further stated to have been contended that the Collector Land

Acquisition, Bhadewah-proforma respondent had in his objections before the

reference court stated that the land was acquired for establishment of

University Campus and that the compensation stands assessed according to

the land cost @ 7188 per marla being approved by the Revenue Authorities as

per the sale deeds of just three years before the acquisition process

commenced and the respondents-non-applicants are not entitled to any access

rate than the rate already paid to them.

6. It is being stated to have been contended that the Collector had

further pleaded before the reference court that the respondents-non-applicants

have received the whole compensation thus, have filed the instant case

without any justification and, therefore, liable to be dismissed.

7. It is being stated in the memo of appeal that on the basis of the

pleading of the parties as many as five issues came to be framed, where upon

the reference court is stated to have returned finding on issue No. 1 in favour

of the respondents-non-applicants herein and issue Nos. 2 and 3 are stated to

have been decided against the appellant-applicant herein and the reference 4 Conc 119/2018

court is stated to have enhanced the amount of compensation vide

judgment/award dated 22.12.2017.

8. The appellant-applicant in the instant application have spelt and

detailed out the cause and reason for not filing the appeal well within

prescribed time limit and have offered the explanation thereof in para 3 of the

application which being relevant and germane is extracted and reproduced in

extenso hereunder:-

"3. That the campus office of the applicant is managed by the Reactor Bhadarwah Campus who informed the applicant that the Counsel representing the University at Bhadarwah Campus has informed that the Ld. District Judge has passed the judgment on 22-12- 2017.The Counsel was accordingly instructed to get a Certified Copy of the judgment and the Certified Copy was obtained by the Counsel on 14-3-2018 and the same was received on 15-3-2018. The officer at Bhadarwah Campus then sent the file along with complete paper book to the office of applicant herein and the record was inspected and the file was sent to the Counsel for the University for seeking the legal opinion. The Counsel for the University opined that the award passed by the Ld. District Judge suffers from irregularities and the same is liable to be challenged before the Hon'ble High Court. The matter was considered by the applicant and it took some time to seek approval for filing the Appeal before this Hon'ble Court and the Counsel for the University was accordingly instructed to draft the appeal and file the same in the Court."

5 Conc 119/2018

9. Per contra, respondents-non-applicants herein, in the objections

filed by them in opposition to the application in hand have resisted and

controverted the contention raised by the appellant-applicant in the

application in hand and seek dismissal of the application on the premise that

the limitation to file the appeal commences from the date the judgment was

announced i.e., 22.12.2017, whereas the appeal has been filed on 25.05.2018,

after the expiry of six months. The delay in filing the appeal is stated to be

intentional, wilful and deliberate one. The appellant-applicant is stated to

have remained negligent in filing the appeal , though the copy of the

judgment is stated to have been obtained on 14.03.2018 and received by the

office of the appellant-applicant on 15.03.2018. It is being stated that what

prevented the appellant-applicant herein to file the appeal within the

prescribed period of 90 days from the date of the judgment has not been

explained.

10. It is further being stated that the appellant-applicant herein has

also remained negligent in obtaining the certified copy of the award/judgment

under challenge when the appellant University has full fledged campus at

Bhaderwah and that the distance between Bhaderwah and Jammu University

campus takes only of 4 ½ hours. It is being further stated that the appellant-

applicant has not stated the date and the month when the legal opinion was

obtained from the counsel and the appeal drafted and the appellant-applicant

is not entitled to any concession and explanation tendered by the appellant-

applicant is stated not to be sufficient to attract the provisions of Section 5 of

the Limitation Act. It is being further stated that the land in question is an

agriculture land, i.e., paddy growing land and the respondents-non-applicants

are stated to have become landless from January 2006 and the said land is 6 Conc 119/2018

stated to have been the only source of their livelihood. It is being further

stated that the respondents-non-applicants have become entitled to the

compensation the day the award was passed. The award/judgment under

challenge, is stated to be perfectly valid having been passed after providing

opportunity to the appellant-applicant herein.

11. It is being also stated that application is not maintainable

inasmuch as the affidavit filed in support of the application by the concerned

officer of the applicant-University is of general nature and does not explain

delay caused in filing the appeal.

Heard learned counsel for the parties and perused the

record.

13. The law on the subject of Section 5 of the J&K Limitation Act

Samvat 1995 is no more res integra and there is a long line of decisions

rendered and delivered by the Hon‟ble Apex Court thereof. It is established

that the law of limitation has to be applied with all its rigor prescribed by a

statute. Although Section 5 of the Limitation Act provides for extension of the

period of limitation in certain cases, and appellant-applicant seeking such

extension is required to satisfy the court that there has been a „sufficient

cause‟ for not preferring the appeal or making the application within the

prescribed period.

14. Before examining scanning and analyzing the explanation

offered by the appellant-applicant for condonation of delay it would be

appropriate and advantageous to refer to the various decisions of the Hon‟ble

Apex Court being relevant and germane here.

15. The Apex Court in State of Madhya Pradesh and others and

Bherulal, 2020 (10) SSC 654, at paras 2, 3 and 5 has noticed as under:-

7 Conc 119/2018

"2. We are constrained to pen down a detailed order as it appears that all our counselling to Government and Signature Government authorities have fallen on deaf ears i.e., the Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed. We have raised the issue that if the Government machinery is so inefficient and incapable of filing appeals/petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence. That is not so. Till the Statute subsists, the appeals/petitions have to be filed as per the Statues prescribed.

3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government [LAOv.Katiji]. This position is more than elucidated by the judgment of this Court in Post Master General v. Living Media India Ltd. (2012) 3 SCC 563 where the Court observed as under:-

"27) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28) Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be 8 Conc 119/2018

accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

29) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red- tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

30) Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay." Eight years hence the judgment is still unheeded!

5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay."

16. In Pundlik Jalam Patil vs. Jalgaon Medium Project, 2008 (17)

SCC 448, following is observed at paras 29 and 30:-

"29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of 9 Conc 119/2018

compensation to the landlosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."

17. In Perumon Bhagvathy Devaswam vs. Bhargavi Amma, 2008

(8) SCC 321 at para 13 (iii) following principle is enunciated qua an

application under Section 5 of the Limitation Act:-

"(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation."

18. In the case, P. K. Ramachadran v. State of Kerala, reported in

AIR 1998 SC 2276, the Apex Court, at paragraph 6 has noticed as under:

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set 10 Conc 119/2018

aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

19. Reference to a Division Bench judgment of this Court as well

would be appropriate and advantageous hereunder passed in case titled as

State of J&K and others vs. Showkat Ali Mufti (Dr.) and others, 2010 (4)

JKJ 638 (HC), wherein at para 6 following is observed:-

" 6. Under the concept of welfare State, in order to promote social justice, it is the bounded duty of the State to protect and preserve public interest and public fund. Since public exchequer is incurring heavy expenses on different departments of the State and its instrumentalities, it is incumbent upon them to be fast and prompt in discharging their duties and in carrying their responsibilities with due diligence. If there is a good case on merit and the application for condonation of delay, unintentional or otherwise, filed by the State is not allowed, it is certain that damage will be caused to the public interest and public fund. Unfortunately, the officers of the State and its instrumentalities carry an impression that with each and every case, the delay caused in filing an appeal is bound to be condoned, taking it for granted on the basis of a few decisions where the delay has been condoned considering the facts of those cases where sufficient causes were shown and proved."

20. Keeping in mind the aforesaid legal position let the Court

consider and analyze the explanation offered by the applicant for condonation

of delay hereunder.

11 Conc 119/2018

21. Perusal of the record would reveal that the award/judgment under

challenge dated 22.12.2017, had been passed in presence of the learned

counsel for the parties. The appellant-applicant herein seemingly has been

contesting the case before the reference court and its counsel has been present

on the date of passing of the award/judgment.

22. Perusal of the record further reveals that the counsel for the

applicant applied for a certified copy of the judgment/award on 14.03.2018

despite the fact award/judgment having been passed on 22.12.2017 i.e., after

more than 70 days. There is no explanation as to why the certified copy of the

award/judgment was not applied for immediately.

23. Further no information or explanation worth the name is furnished

as to when after receipt of the certified copy of the award/judgment on

15.03.2018, the officer at Bhaderwah Campus sent the file to the office of the

applicant-University and as to which officer inspected the record and also as

to when the file was sent to the counsel of the University for seeking legal

opinion inasmuch as to when the counsel for the university furnished his

opinion that the award suffers from irregularities rendering it liable to

challenge.

24. Record would also reveal that no explanation is expressed as to

when the matter was considered by the appellant-applicant and was referred

for approval for filing of the appeal and whose approval was sought and as to

when such approval was accorded.

25. The application in hand seemingly is filed with the impression that

in seeking condonation of delay the expression "sufficient cause" would

receive a liberal construction in favour of the appellant-applicant being an 12 Conc 119/2018

autonomous body /instrumentality of State, entitled to a concession in this

regard thereof to which however, the appellant/applicant is found to be not

entitled to for want of diligence right from the date of passing of the award

under challenge, till the filing of the time barred appeal accompanying the

instant application.

26. Risking repetition, even otherwise also as observed by the Apex

Court in Pundlik Jalan's case (supra), the public interest demands that the

State or the beneficiary of acquisition, as the case may be should not be

allowed to indulge in any act to unsettle the settled legal rights accrued in law

by resorting to avoidable litigation unless the claimants are deriving benefit to

which they are otherwise not entitled, in any fraudulent manner. One should

not forget the basic fact that what is acquired is not the land but the livelihood

of the landlosers. The said observation squarely applies to the case of the

respondents-non-applicants herein who claim to have lost their agriculture

land and source of their income in the year 2006, so much so without there

being any allegation of fraud by the appellant/applicant against them.

27. It manifestly emerges from the record without any doubt that the

explanation offered by the appellant-applicant in the instant application in

general and in para 3 in particular cannot, by any sense of imagination, said to

be sufficient, plausible and cogent but the same being cryptic and casual.

Even the affidavit accompanying the application in support thereof is

stereotyped one.

28. Viewed in the context what has been observed, considered and

analyzed hereinabove, the application in hand is found to be without any 13 Conc 119/2018

merit and is, accordingly, dismissed, as a consequence whereof the

accompanying appeal shall also stand dismissed.

29. Dismissed along with connected IA(s).

(Javed Iqbal Wani) Judge Jammu 02.03.2021 Bir Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No.

BIR BAHADUR SINGH 2021.03.02 17:43 I attest to the accuracy and integrity of this document