Both Sons Of Ghulam Nabi Shah (Salati) vs Collector
2024 Latest Caselaw 527 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Both Sons Of Ghulam Nabi Shah (Salati) vs Collector on 30 April, 2024

            HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                           AT SRINAGAR

                                                      Reserved On: 16th of April, 2024
                                                   Pronounced On: 30th of April, 2024.


                               CFA No. 95/2006

      Ghulam Nabi Shah (Salati)
      (Since Dead)
      S/O Ab. Rahim Shah
      R/O Anantnag, Kashmir
      Substituted by LRs;

      I.      Showkat Ahmad Shah

      II.     Mohammad Waseem Shah

              Both Sons of Ghulam Nabi Shah (Salati)
              Residents of Anantnag, Kashmir.
                                                               ... Appellant(s)
                                 Through: -
                      Mr Rizwan-u-Zaman Bhat, Advocate.

                                      V/s
1. Collector, Land Acquisition/
   Assistant Commissioner, Revenue,
   Anantnag.

2. Commissioner/ Secretary to Government of J&K,
   Tourism Department, Civil Secretariat,
   Jammu/ Srinagar.
                                                             ... Respondent(s)

Through: -

Mr Ilyas Nazir Laway, Government Advocate; and Mr Faheem Nisar Shah, Government Advocate. CORAM:

HON'BLE MR JUSTICE M. A. CHOWDHARY, JUDGE (JUDGMENT)

01. This Appeal was originally filed by one Ghulam Nabi Shah (Salati), son of Ab. Rehman Shah, resident of Anantnag, Kashmir, who thereafter died during the pendency of this Appeal. Accordingly, in terms of Order dated 13th of September, 2021, the present Appellants, being the sons of the deceased Appellant, were brought on record as Appellants.

02. The Appellant claimed to be owner of land measuring 03 Kanals and 16 Marlas covered under Survey No. 393 situate at Village Bindoo, Zalangam, Tehsil and District Anantnag. The said land is stated to be located in the market of Kokernag on the roadside, within the limits of notified area committee. It is stated that the said land was acquired by the Tourism Department of the Government of Jammu & Kashmir at the back of the Appellant, inasmuch as, no opportunity of being heard was afforded to the Appellant during the acquisition proceedings. In the year 1997, the Appellant claims to have been approached by the Respondents to receive compensation with respect to the above land in light of the final Award passed by the Respondent-Collector, however, the original Appellant refused to receive the same as he had been given Rs.75,000/- per Kanal only, when the market value was Rs. 3.00 lacs per Kanal.

03. The original Appellant moved an application before the Respondent-Collector, which was referred to the learned District Judge, Anantnag vide No. LA (345)92/429-32 dated 12th of September, 1997, whereafter issues were framed in the matter and parties were directed to lead the evidence. The learned District Judge/ Reference Court, however, in terms of the impugned Judgment dated 1st of March, 2006, rejected the Reference of the Appellant on merits as well as on limitation, being time barred.

04. Feeling aggrieved of the aforesaid Judgment passed by the learned Reference Court, the Appellant challenged the same through the medium of the present appeal. Since, the Appellant had initially only challenged the impugned Judgment passed by the Reference Court in this appeal, but they, thereafter, filed an application seeking amendment of the Appeal by challenging the Decree passed by the learned District Judge in pursuance of Judgment dated 1st of March, 2006 as well.

05. Mr Rizwan-u-Zaman Bhat, the learned Counsel appearing for the Appellant, submits that it was only due to the lack of knowledge of the Appellant, that he could not file an application under Section 18 of the Land

Acquisition Act, before the Collector within time, inasmuch as, the Appellant gained the knowledge about the passing of the Award only in the year 1997, whereafter he immediately filed application under Section 18 on 12th of July, 1997. It is submitted that there was no deliberate or intentional delay on the part of the Appellants in filing the said application, which was agitated before the Reference Court, but it was not considered while passing the impugned Judgment. It is pleaded that the land of the Appellants was fit for commercial use, therefore, the Respondents were bound under law to pay compensation to the Appellants at market value, but the Reference Court had dismissed the Reference, wrongfully and illegally.

06. Both the learned Counsel appearing for the Respondents have supported the impugned Judgment of the Reference Court as well as the final Award passed by the Collector. It is urged that the learned District Judge has considered the matter in its true and correct perspective and that the same does not call for any interference from this Court in the present appeal.

07. Heard learned Counsel for the parties, perused the record and considered the matter.

08. The Appellant's land measuring 03 Kanals and 16 Marlas covered under Survey No. 393 situate at Village Bindoo, Zalangam, Tehsil and District Anantnag had been acquired by the Collector, Land Acquisition/ Assistant Commissioner, Revenue, Anantnag for the construction of approach and extension of Tourism Club at Kokernag in village Bindoo, Zalangam, Anantnag @ Rs.75,000/- per Kanal. In total, land measuring 18 Kanals and 07 Marlas comprising under Survey Nos.

392, 1672/392, 1674/392, 1341/392 Min, 392 Min and 393 Min had been acquired for this purpose. The Appellant, after passing of the Award by the Collector on 14th of December, 1995, moved an application to the Collectorate for making a reference to the District Court as he was not satisfied with the rate of compensation awarded to him for the acquisition of his land.

09. The Collector, vide his No. LA (345) 92/429-32 dated 12th of September, 1997, made a Reference to the District Court, Anantnag in terms of Section 18 of the Land Acquisition Act and also submitted schedule under Sections 19 (1) and 19 (2) of the Land Acquisition Act, soliciting decision thereon.

10. The Public Prosecutor, appearing for the Respondents, filed Objections to the Reference on 22nd of June, 1999, asserting therein that the Appellant had been afforded an opportunity of filing of Objections and leading evidence in support of his contention before the Collectorate and the rate of the acquired land has been decided as per market value and the payment has been made in accordance with the applicable rates of the adjacent lands, along with interest. The Reference was also opposed being time barred and being not-maintainable, asserting therein that the final Award had been passed on 14th of December, 1995, whereas the application for making reference had been moved after the period of limitation was over, when the fact of the matter was that the father of the Appellant was having knowledge of passing of the Award.

11. On the basis of the pleadings of the parties, the Reference Court, vide Order dated 6th of August, 1991, raised the following issues for disposal of the Reference:

I. Whether in view of the prime location of the acquired land, it had commercial value and would have fetched a higher price? OPP; II. Whether the market value of the acquired land at the time of acquisition was couple of lacs per Kanal? OPP;

III. In case issue Nos. 1 and 2 are proved in favour of the interested person, what was the market value of the acquired land at the time of acquisition; and IV. Relief?

It appears that the onus to prove all the issues had been placed on the Petitioner/ father of the Appellants herein.

12. The Appellant had led evidence in support of his case, whereas the Respondents did not lead any evidence. The Reference Court, after hearing both the parties, came to the conclusion, vide the impugned Judgment dated 1st of March, 2006, that the final Award under Reference was found to have been passed, in view of the criteria laid down for the market value and in view of the evidence led by the applicant-land owner, the Court formed an opinion that he does not deserve any relief at the hands of the Court and it was also observed that the Award having been passed on 14th of December, 1995 was sought to be referred to the Reference Court on 12th of July, 1997, as such, same was time barred, inasmuch as the Reference is to be sought to be made within six months, after the date of the passing of the Award. Finally, the Reference was dismissed and the Award passed by the Collector was upheld.

13. As regards the issue of evidence led by the Appellant, the Appellant, besides himself crossing the witness box, examined his witnesses, namely, Amma Bhat, Aziz Bhat, Aziz Ganai and Mohammad Yousuf Sheikh. He also placed on record certified copies of the sale deeds dated 24th of May, 1988 and 29th of March, 1984 attested by the learned Sub Registrar, Vailoo, with regard to two pieces of land situated in the same village where the land of the Appellants was acquired. PW-Amma Bhat's statement was not relevant as he had stated that the land had been mutated in his favour under the Agrarian Reforms Act, therefore, there is no question of any sale consideration for the land acquired by him. PW-Aziz Bhat had stated that he had purchased 05 Kanals of land for Rs.2.00 lacs, which means that per Kanal rate of his land was Rs.40,000/-, whereas the Appellants had been granted Rs.75,000/- per Kanal. PW-Aziz Ganai had stated that he had purchased land @ Rs. 3.00 lacs per Kanal, but no conveyance deed or any proof of transaction was placed on record, therefore, his bald statement, in absence of any documentary proof, is to be ignored. PW-Mohammad Yousuf Sheikh has stated that he had purchased

land @ Rs.40,000/- per Marla, however, it has come on record, as stated by him in his cross-examination, that in fact two shops had been purchased vide a 'Power of Attorney' in the year 2001, which is also, thus, irrelevant to the issue on hand.

14. The sale deed dated 24th of May, 1988, as relied upon by the Appellants, was stated to have been executed by one Ali Mohammad Hakroo with regard to land measuring 10 Marlas for a consideration amount of Rs. 50,000/-, which means that one Marla of land was sold for Rs.5,000/, as such, the rate for one Kanal of land was Rs.1.00 lac. Similarly, the sale deed dated 29th of July, 1984 executed by one Ghulam Qadir Bhat was with regard to 02 Marlas of land for a consideration of Rs.9,000/-, which means that the rate per Marla was Rs.4,500/-, which comes to Rs.90,000/- per Kanal. Both these sale deeds were stated to have been executed much prior in time in the years 1984 and 1988, whereas the land of the Appellant herein was, admittedly, acquired in the year 1995. The Reference Court, however, did not rely on these sale deeds whose certified copies were placed on record by the Appellant and, rightly so, for the reason that both these sale deeds pertained to a different locality of Bidder Hayatpora, that too for small parcels of land, whereas, the land acquired in this case was 18 Kanals and 07 Marlas. Small parcels of the land cannot be compared with the large pieces of land. The Reference Court has, thus, rightly and justly decided the Reference, holding that the Collector has fairly determined the compensation on the reasonable factors as required under Section 23 of the

15. Coming to the issue of limitation, the Appellant had stated that he came to know about the Award under Reference in 1997 and it has also been admitted by his Counsel that the application for Reference was made in the year 1997. A Reference to District Court can be made by the Collector on an application moved by the land owner/ interested person in terms of Sub-Section 2 of Section 18 of the Land Acquisition Act within the specified periods. It has been provided in the aforesaid Sub-Section that a Reference can be made within a period of six weeks from the date of the

Collector's Award, when the Award has been passed in presence of the land owner/ interested person or having representation on his behalf, whereas, a Reference can also be made within a period of six weeks from the date of receipt of the notice from the Collector under Sub-Section 2 of Section 12 or within a period of six months from the date of the Collector's Award, whichever period shall first expire. The case of the Appellant, in the present appeal, is that he had no knowledge about the passing of the Award on 14 th of December, 1995 whereas the application for making Reference before the Collector was made by the Appellant on 12th of July, 1997, admittedly after the period of limitation was over. In this situation of the matter, the application filed by the Appellant for seeking Reference was hopelessly time barred and the Reference Court has rightly decided the Reference in tune with the mandate of law governing the subject.

16. For the aforesaid reasons, the present appeal is found to be without any merit. The same is, accordingly, dismissed, along with the connected CM(s). Interim direction(s), if any subsisting as on date, shall stand vacated. No order as to costs.

17. Record of the Court below be sent down, along with a copy of this Judgment. The record produced by Mr Faheem Nisar Shah, learned Government Advocate, be also returned to him with due dispatch.

(M. A. CHOWDHARY) JUDGE

SRINAGAR April 30th, 2024 "TAHIR"

                                 i.   Whether the Judgment is speaking?        Yes.
                                ii.   Whether the Judgment is reporting?       Yes.