Reserved On: 17.11.2022 vs Beli Ram (D) Through His Lrs & Ors
2022 Latest Caselaw 1827 j&K

                                                                   Page |1



       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                         CFA No. 26/2008
                         CFA No. 27/2008



                                           Reserved on:     17.11.2022
                                           Pronounced on: 29 .11.2022
Defence Estate Officer
                                                       ...Appellant(s)

            Through: Mr.Sunil Malhotra, CGSC,

                              Vs.
CFA No. 26/2008
Beli Ram (D) through his LRs & Ors.
CFA No. 27/2008
Dharmpaul (D) through his LRs & Ors.

                                                          ...Respondent(s)

            Through: Mr.Vikram Sharma Sr. Advocate with
                     Mr.Sachin Dev Singh, Advocate
                     Mr. A.K. Shan, Advocate
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE

                            JUDGMENT

1. Through the medium of this judgment it is proposed to dispose of

the above titled two appeals arising out of common judgment dated

17.01.2008( hereinafter called 'impugned judgment for short) passed

by the Court of Learned 2nd Additional District Judge Jammu

(hereinafter called 'reference court' for short) in two references

made by Collector Land Acquisition [Assistant Commissioner (G)],

Jammu titled Dharmpaul & Ors.. Vs. Assistant Commissioner (G ) &

Anr. and Beli Ram & Ors. Vs. Assistant Commissioner (G) & Anr.

2. Having been aggrieved of the common judgment passed in both the

references under section 18 of Jammu & Kashmir Land Acquisition Page |2

Act, both these appeals have been preferred by Defence Estate

Officer Circle Jammu Cantt; Jammu, separately.

3. Defence Estate Officer Jammu Circle Jammu Cantt; (hereinafter

called appellant) vide his No. JKJ/103/ACQ/DEO/181 dated

17.3.1989 forwarded an indent to the District Collector (Dy.

Commissioner) Jammu to acquire 142 kanals of land comprising

under Khasra Nos. 81, 84min,

131min,132min,133,134,136,137,138,139,140,141,142,143,178,179

and 180 situated at village Narwal Pain Jammu proposed for defence

purpose namely construction of residential-cum-office

accommodation.. The District Collector assigned these acquisition

proceedings to Assistant Commissioner (G) ( hereinafter referred as

Collector for short) to proceed in the matter under the provisions of

Land Acquisition Act Samvat 1990. The Collector proceeded in the

matter after issuance of requisite notifications by the Collector and

the Govt. The land in question was acquired by Final Award dated

09.04.1992 passed by the Collector granting compensation to the

land owners at a uniform rate of Rs. 1.00 lac per kanal alongwith

Jabrana (Solatium) @15%.

4. Aggrieved of the grant of compensation the land owners

Dharampaul, Rameshwar Singh, Kewal Krishan, Smt. Yasmeen and

Bahar Din made applications to the Collector whose Reference was

made by the Collector vide his No. LH-121/68-II dated 16.03.1994.

Similarly land owners Beli Ram, Gudo and Kuki also applied for

making reference and the Collector vide his No. LH/121/68 dated

19.12.1994 also made a reference to the District Court Jammu. In

both the references the land owners were aggrieved of the rate of Page |3

compensation and claimed that they should be paid compensation at

least @ Rs. 3.00 lacs per kanal. They also took a plea that in the year

1991 under the chairmanship of Divisional Commissioner Jammu, a

high level committee of officers had thrashed out of the matter with

regard to determination of rate of land in the area having regard to

the commercial value of an adjoining land decided the market value

of land @ Rs. 2.75 lac per kanal. The references were received by

the District Court on 28.03.1994. Vide order dated 28.8.1995 both

the references were clubbed together by the Reference Court having

regard to the same question of market value of the land acquired at

the relevant time being same and the minutes of the proceedings

were ordered to be recorded in the reference titled Dharam Paul vs.

Collector Assistant Commissioner (G) Jammu. Respondent Collector

filed objections, to both the references.

5. Based on the pleadings of the contested parties following issues were

framed for trial of the References by the District Court Jammu:

i/ Whether the amount of compensation awarded by the

Collector for the acquired land is less than the market value

of the land. If so, what was the market value of the land at

the time of acquisition? OPP

ii. Relief. ?

6. After leading evidence by the land owners the intending officer-

Defence Estate Officer Circle Jammu Cantt; (appellant herein) was

impleaded as party respondent no. 2 by the District Court Jammu on

21.1.2006, on an application moved by the land owners. Mr. Prag

Sharma Advocate appeared on behalf of the Defence Estates Officer

before the District Court on 17.03.2006 and sought adjournment for Page |4

filing of objections. Vide High Court Order dated 01.05.2006 passed

in APPCR No. 07/2006 with regard to distribution of civil and

criminal work these cases were transferred from the Principal

District Court to the Court of learned Additional District Judge

(Matrimonial Cases ) Jammu, for disposal under law. However,

these cases were again transferred to the court of learned 2nd

Additional District Judge Jammu, in terms of Order No. 784-

89/PDSJ dated 17.05.2007. This is how the cases came up before the

Reference Court of learned 2nd Additional District Judge Jammu.

7. Since there was no representation on behalf of the respondent

Collector as well as Defence Estate Officer they were proceeded ex-

parte by the court below vide order dated 13.10. 2007 and the files

were posted for final arguments.

8. The court below, vide impugned common judgment, replied both the

References, holding that the Collector had granted lower rates @ Rs.

1.00 lac, per kanal, of the acquired land of the land owners than the

market rates and ordered that the compensation for the acquired land

be paid @ Rs. 2.00 lac per kanal.

9. The appellant who had not contested both the References, despite

being summoned and having appeared before the court below, has

assailed the judgment passed in both the References mainly on

following three points only:

i/ Firstly that the reference made by the Collector was time

barred and the court below had received the same who was

not competent to entertain it;

ii/ Secondly the references were not decided by the Principal

Civil Court of the District but by an Additional District Page |5

Judge, who was not competent to decide the reference

made under the Land Acquisition Act; and

iii/ thirdly that the rate of compensation, without any basis

was enhanced to double, of the land per kanal from Rs.

1.00 lac to Rs. 2.00 lacs per kanal.

10. Learned Counsel for the appellant has vehemently argued that the

reference court had neither framed issue with regard to the limitation

which it was obligated to do since the reference is to be made within

six weeks from the date of passing of the final award when the land

owners/interested parties participate in the acquisition proceedings

whereas the reference is to made within six months when the land

owners/interested persons do not participate in the proceedings as

required under sub clause 2 of Section 18 of the Land Acquisition

Act. He argued that the judgments passed by the court below do not

withstand on this point only. He further argued that the references

have been decided by an Additional District Court and not the

Principal Civil Court of the District, as such, the judgment having

passed by incompetent court, is liable to be set aside. In this behalf

he made refrences of the provision contained under section 3 (c)

whether the expression of the court has been defined to mean the

Principal Civil Court of original jurisdiction in a district unless the

government has appointed special judicial officer within any

specified local limits to perform the functions of the Court under this

Act. He submits that in absence of any notification the court under

section 18 for making a reference means the court of Principal

District Judge and does not included the Court of Additional District

Judge. He further argued that Court below has exorbitantly enhanced Page |6

the rate of compensation and doubled the same from Rs. 1.00 land to

Rs. 2.00 lacs per kanal based on shaky evidence produced by the

land owners and relying upon sale deeds of small plots to consider

the rate of big chunk of land acquired at the instance of appellant by

the Collector. He finally prayed that if the judgment passed in the

references is not set aside on other counts, the rates of the land

acquired to be maintained whatever the collector had decided and the

judgment to that extent for ordering enhancing of the compensation

be set aside.

11. Learned counsel for the respondents on the other hand, argued that

first plea raised by the appellant with regard to limitation is not only

legal question but is mixed question of fact and law, the appellant

had not participated in the proceedings before the court below and

despite service of notice had not appeared and was proceeded ex-

parte as such the appellant cannot raise this question before this court

while hearing in appeal. Learned counsel for the respondents further

argued that other contentions raised by the learned counsel for the

appellant that the cases had been decided by an incompetent court of

2nd Additional District Judge Jammu instead of principal District

Court Jammu is also misconceived as a Court of Additional District

Judge is a Co-ordinate Court of Principal Court and is in no way

inferior to the District Court. Reliance placed by learned counsel for

the appellant on the definition clause does not hold water in view of

the fact that he has misunderstood the word Principal District Judge

to mean as Principal Civil Court of the District. Whereas the fact of

the matter is that a Court of Principal Judge as well as all other

Courts of Additional District Judges have the same Page |7

powers under the Civil Courts Act to decide the matters. They have

relied upon 2 judgments cited as 2007(1) JKJ 161 and 2008 (2) JKJ

(HC) 28.

12.Learned counsel for the respondents with regard to 3 rd submission of

learned counsel for the appellant that the rates of the land acquired

argued that the appellant despite affording opportunity of being

heard and despite issuance of notice absented from the proceedings

before the court below and without lead any evidence on its behalf or

cross examine the witnesses examined by the respondents cannot

take plea now that the rates having not been properly decided of the

land acquired. Finally, it was prayed to reject the appeals filed by the

appellant.

13.Let us consider all the pleas raised by the appellant one by one. So

far as the question of limitation is concerned though it is provided

under section 18 of the Land Acquisition Act that the Collector while

making references shall consider the period of limitation as to six

weeks when the land owners /interested persons had joining the

proceedings before the Collector and within six months from the

date of final award when they do not participate in the proceedings.

Since limitation is mixed question of fact and law and is to be

delineated on the basis of pleadings based on facts and the same

cannot be decided as legal issue without going into the facts of the

case. The appellants had chosen not to appear and contest the matter

before the court below. The Collector while making reference did

not make any reference to the limitation, however, except assertion

made that the land owners had made application to him in the first

week of October, 1993 (1.10.1993, 4.10.1993 and 6.10.1993) Page |8

whereas the final award had been made on 09.04.1992 and the

application for making reference had admittedly been made after the

period of limitation. Now the question to be seen as to whether the

land owners had participated in the proceedings and the final award

had been passed in their presence.

14. On a cursory look to the final award, it is found that the land

owners without specifically referring their names had claimed

compensation @ of Rs. 3.00 lacs per kanal, however, based on the

report of Tehsildar and keeping in view the earlier awards passed

and last three years sale deeds and an amount of Rs. 1.00 lac was

deemed proper rate per kanal. The final award does not specify

whether the award was passed in presence of the land owners or not.

Section 12 of the Land Acquisition Act provides that the Collector

on passing the final award shall give notice of his award to such of

the persons interested as who are not present either personally or by

their representatives when the award is made. Having regard to the

provisions the matter is to be considered as to whether any notice in

terms of Section 12 of the Land Acquisition Act had been served on

the land owners. Nothing is born out from the record made available

as to whether the notice has to be served to the land owners or not.

Point of limitation has been considered by the Hon'ble Apex Court

in a case titled State of Punjab vs. Qaiser Jehan Begum reported as

1963 AIR (SC) 1604 observed that literal and mechanical

construction of the words "six months from the date of the

Collector's award" occurring in the second part of clause (b) of the

proviso would not be appropriate and "the knowledge of the party

affected by the award, either actual or constructive, being essential Page |9

requirement of fair play and natural justice, the expression used in

the proviso must mean the day and date when the award is either

communicated to the party or is known to him either actually or

constructively. It has been further held that knowledge of the award

does not mean a mere knowledge of the fact that an award has been

passed. The knowledge must relate to the essential contents of the

award. These contents may be known either actually or

constructively. If the award is communicated to the party under

section 12 (2) of the Act the party must be obviously fixed with

knowledge of the contents of the award whether he reads it or not.

Similarly when a party is present in court either personally or

through his representative when the award is made by the Collector

it must be presumed that he knows the contents of the award.

15. Having regard to the scheme of the Act that knowledge of the award

must mean knowledge of the essential contents of the award looked

at from that point of view it cannot be inferred that the respondents

had knowledge of the award. Though an issue on the point of

limitation had not been framed by the court below, however, the

court below in para 6 of the judgment has dealt with issue of

limitation without even being raised by any of the parties and

concluded that the land owners/interested parties had no knowledge

with regard to the passing of the award and its contents till they

obtained the copies of the award for making a reference. Therefore,

it cannot be said that the References have been entertained by the

Collectorate as well as Reference Court in time barred matters.

P a g e | 10

16. Coming to the second question raised by the learned counsel for the

appellant that the court of Ld. 2nd Additional District Judge who

decided the References, was not competent Court to decide the

references made under the Land Acquisition Act. Section 16 of the

Civil Courts Act is the relevant provision to be gone into which is

reproduced as under:-

"16.Additional Judges (1) When the business pending before any District Judge requires the aid of any Additional Judge or Judges for its speedy disposal, the Government may on the recommendations of the High Court appoint such Additional Judge or Judges as may be necessary (2) An Additional Judge so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him, and in the discharge of those functions he shall exercise the same powers as the District Judge." (emphasis added).

17. A Division Bench of this court in a case titled SKUAST & Ors. Vs.

B.V.Sharma reported as 2008 (2) JKJ (HC) 28, has already

interpreting section 16 of the Civil Courts Act in a case of J&K

Arbitration and Conciliation Act of 1997, held that the Additional

District Judge exercises the same jurisdictional powers as that of the

Principal Civil Court of original jurisdiction and is not excluded

from the definition clause. It was, also held that an Additional

District Judge who is exercising the same jurisdictional

functions/powers is not inferior in grade to that of Principal Civil

Court of original jurisdiction, as such, the Additional District Judge

is not statutorily incompetent or inferior to the Principal District

Judge. In view of the interpretation given by this court in the case P a g e | 11

(supra) there is no scope left for the appellant to raise this point that

an Additional District Judge in a District is not Principal Civil Court

of the District simply for the reason that Court of Additional District

Judge except that he is assigned judicial work under the

administrative orders of Principal District Judge of the district, also

has equal jurisdiction, in all the matters and is not in any way

inferior to the court of Principal District Judge. The contention with

regard to lack of jurisdiction raised by learned counsel for the

appellant is thus misconceived and is rejected.

18. So far as 3rd contention with regard to the enhancing the rates of the

land in question allegedly in an arbitrary manner to double, by the

reference court is concerned. The appellant had not participated in

the trial of the case before the Reference Court. Neither the

witnesses examined by the land owners were examined nor any

objection had been taken to the documentary evidence placed on

record. Without going into the merits of the evidence led by the land

owners it is suffice to refer an observation of the Reference Court in

para 16 of the judgment that some other land at Narwal Pain Jammu

in the same locality, where the land in question was situated had

been acquired by Collector ( ACR) Jammu on 11.5.1993 @ Rs. 2.70

lacs per kanal. The Collector had, however, diferred with the rate

granted by the other Collector, saying that the same was not as per

logical criteria to be adopted for fair compensation. The Collector of

this case had almost questioned the other collectorate for granting

the amount. However, the land owners had a plausible ground to

claim compensation at higher rates than that was granted by the

Collectorate.

P a g e | 12

19. The Reference Court while deciding the issue with regard to the rate

of compensation has very elegantly and eloquently discussed the

evidence led by both he parties. The Court has referred to the

statement of Sunil Sahi, attorney holder of land owners of Dharmpal

and Rameshwar Singh, claimants Ch. Bahar Din and Beli Ram and

also their witnesses Sardar Singh, Rajesh Kumar, Kailash Sharma

and Ashok Kumar who have stated that the acquired land was

situated at prime location at Narwal Pain and is surrounded by

Jeewan Nagar, Ashok Nagar, Digiana and Industrial Estate and the

land in question was just 100 yards away from the main road. The

Government had acquired land in the year 1991 for widening of

Satwari-Airport against a compensation of Rs. 2.70 lacs per kanal

and claimed that the claimants be paid @ Rs. 3.00 lacs per kanal.

Apart from oral evidence the claimants have also produced certified

copy of a draft award passed by the State in May 1993 for

acquisition of land for widening of Satwari-Airport road at Narwal

Pain Jammu where the compensation was awarded @ Rs. 3.00 lacs

per kanal. They had also produced copies of two sale deeds which

have been executed by one Karnail Singh in February 1987 though

relating to small parcels of land i.e. 6 and a half marlas and 5 marlas

sold @ Rs. 45,000/-. The Reference Court has rightly observed that

it may be true that the land for which compensation was paid by

another Collectorate @ Rs. 2.75 lacs per kanal was more valuable

than the instant land but the cost difference between that land and

this land could not be Rs. 1.75 lacs per kanal and the Collector has

not assigned any plausible justification to award compensation just P a g e | 13

@ Rs. 1.00 lac per kanal. Respondents had examined Shri Madan

Lal Patwari who deposed that as per the record from 1990-92 the

rate of land at Narwal Pain Jammu adjacent to Jammu Pathankot

Road which touches Jewan Nagar, Ashok Nagar and Digiana was

Rs. 46,000/- per kanal. He also added that the land comprising of

survey No. 132 Narwal Pain is opposite to Industrial Estate. The

Reference Court on the basis of oral as well as documentary

evidence has come to the logical conclusion that the Collector had

not adopted a just criteria for granting of fair compensation,

particularly, in view of the fact that the Government had paid around

Rs. 3.00 lacs per kanal for acquisition of land at a particular place

and why it should be only Rs. 1.00 lac for another patch of land,

almost at the same place. The Reference Court has rightly come to

the conclusion that the rate of compensation granted to the land

owners in this case was far less than the genuine and just

compensation of Rs. 2.00 lacs per kanal and passed the award

granting Rs. 2.00 lacs per kanal alongwith statutory interest and

solatium.

20. The appellant in this case despite being served and having

knowledge that the References have been made in terms of Section

18 of the Land Acquisition Act after appearing from the court below

absented from the proceedings and did not contest the matter or led

any evidence.

21. On a consideration of the whole gamut of proceedings before the

Collectorate and the Reference Court it appears that the Reference

Court has passed a very reasoned judgment based on sound

principles of law and does not call for any interference by this court P a g e | 14

while exercising appellate jurisdiction. The appeals are found to be

devoid of any merit and substance and are liable to be dismissed.

22. For the foregoing reasons and observations made hereinabove, both

the appeals are dismissed and the judgment impugned is upheld.

There shall, however, be no order as to costs. Compensation, if any,

deposited with the Registry of this Court be disbursed amongst the

claimants/land owners after their proper verification in terms of the

Reference Court Award.

(MA CHOWDHARY) JUDGE Jammu 29.11.2022 Mujtaba

Whether the order is reportable: Yes / No