Jammu & Kashmir High Court - Srinagar Bench
M/S Gazala Agro Industries vs State Through Commissioner Secretary ... on 25 October, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM no. 7380/2022
In RFA no. 54/2022
Reserved on: 31.07.2024
Pronounced on: 25.10.2024
M/S Gazala Agro Industries
.....Petitioner
Through: Mr. Ateeb Kanth, Advocate
V/s
State through Commissioner Secretary and others
..... Respondent(s)
Through: Mr. Mubeen Wani, Dy. AG
Mr. T. M. Shamsi, DSGI
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. Condonation of delay in filing Civil First Appeal against the Judgment
and Decree dated 05.11.2019 passed by Principal District Judge,
Ganderbal (for short "Trial Court") in a suit titled as M/s Gazala Agro
Industries v. State and others, having been filed by the
applicant/plaintiff, is sought in this application.
2. Heard and considered.
3. As record would show on its bare perusal, the suit of the plaintiff/
applicant came to be decreed by the Trial court by virtue of Judgment
impugned. The Trial court has passed the following decree:
"Thus a decree of declaration and mandatory injunction is passed in
favour of the plaintiff and against the defendants to the effect that:
a) Plaintiff is entitled to fair and just compensation in respect of the
building structures with installed machinery that was existing on
land measuring 1 kanals 17 marlas under survey No. 723 situated at
revenue estate Thun Kangan acquired by the defendant no. 2
collector Land Acquisition (ACR) Ganderbal for defendants 3 and
4 (indenting department) for the construction of Srinagar Sonmarg
Gumri Road.
b) Defendants are directed to relook/reassess the issue of compensation
for four structures of the plaintiff alongwith installed machinery by
setting up a the Private Negotiation Committee undoubtly having
active participation of the plaintiff, to be Constituted by the District
Collector (Dy. Commissioner) under his Chairmanship which
besides the representatives from expert R&B Department, Intending
Department, shall also have the representatives to be nominated by
the Director Industries and Commerce, Directorate of Agriculture
Production department, State Bank of India and Department of
Horticulture (P&M) Department. The compensation in respect of
the structures with installed machinery to the determined by the
PNC minus the compensation amount already received under
protest on account of structures shall be payable to the plaintiff
within a period of 60 days along with interest at the rate of 6% per
annum w.e.f 1.1.2009. The committee shall afford sufficient
opportunity of being heard and to produce the documents if any, to
the plaintiff. In case of non-satisfaction of the plaintiff at the PNC,
he shall be at liberty to have recourse under law for determination
of his rights."
4. The applicant moved an execution petition under Order 21 Rule 11 CPC
before the Executing Court/Trial Court for execution of judgement and
decree. The Trial court vide order dated 31.12.2021 disposed of the
Execution petition and passed the following order:
"7. ...As discussed above, in view of the Rule 11 and 14 of the Order
21 CPC, the modes of the execution available to the Decree holder are:
i. By the delivery of any property specifically decreed
ii. By the attachment, or by the attachment and sale, or by the sale
without attachment, of any property.
iii. By the arrest and detention in prison of any person;
iv. By the appointment of a receiver;
The case of the Decree holder does not fall within the category of modes
as suggested in clause 1,2 &4 and in view of the compliance report
furnished does not conform to any ground of arrest and detention in
prison of the judgement debtors.
8. Upon the cumulative analysis and in terms of the judgement and
decree passed by this court coupled with the report submitted by the
judgment debtors, the term of reference of judgement and decree stand
already complied with. However, a direction has been passed in the
judgement itself that in case of non-satisfaction of the plaintiff at PNC,
plaintiff shall be at liberty to take recourse under law for determination
of his right, which remedy otherwise is available to the Decree holder.
The execution petition stands disposed off and be consigned to records
after due compilation."
5. After disposal of the Execution petition, the petitioner had filed a writ
petition bearing WP(C) no. 2498/2021, which was disposed of vide
order dated 28.10.2022, which is reproduced as under:
"...In this petition, the petitioner, inter alia, has challenged the
notification issued by the respondents under section 4 of the J&K Land
Acquisition Act, on 12.05.2018. From the record it appears that final
award in the matter has been passed and the petitioner has also accepted
the compensation.
The petitioner being dissatisfied with the amount of compensation
worked out has already approached civil court by way of a suit for
declaration and injunction, which allowed by the court of Principal
District Judge, Ganderbal, vide its judgement/decree dated 05.11.2019.
In compliance to the judgement/decree dated 05.11.2019, the Deputy
Commissioner, Ganderbal, considered the entire matter afresh and
passed a speaking order vide his No. DCG/ARA/565-68 dated
10.11.2020. the petitioner neither assailed the aforesaid order nor has
sought reference under section 18 of the J&K Land Acquisition Act. He
has approached this Court through the medium of the instant petition
which on the face of it is not maintainable.
Faced with the aforesaid position, learned counsel for the petitioner
seeks leave of this Court to withdraw this petition with liberty to pursue
remedies as may be available to him under J&K Land Acquisition Act.
In view of above, this petition is dismissed as withdrawn with liberty as
prayed for."
6. In compliance to Judgment and decree impugned, Deputy
Commissioner, Ganderbal passed the order no.DCG/ARA/565-58
dated 10.11.2020, which reads as under:
"...Sub. Case titled M/S Gazala Agro Industries through its proprietor
Ghulam Mohammad Yatoo S/o Mohammad Subhan Yatoo R/o Thune
Tehsil Kangan v/s State of J&K and others-Hon'ble Court order dated:
05.11.2019 thereof.
ORDER
Whereas, Hon'ble Court of Principal District Judge, Ganderbal
passed an order dated 05.11.2019 in case titled M/S Gazala Agro
Industries through its proprietor Ghulam Mohammad Yatoo S/o
Mohammad Subhan Yatoo R/o Thune Tehsil Kangan v/s State of J&K
and others, the operative part of which reads as under:
"... Defendants are directed to relook/reassess the issue of
compensation for four structures of the plaintiff along with installed
machinery by setting up at the Private Negotiation Committee
undoubtly having active participation of the plaintiff, to be constituted
by the District Collector (Deputy Commissioner) under his
Chairmanship which besides the department, shall also have the
representatives from expert R&B Department, Intending department,
shall also have the representative to be nominated by Director Industries
and Commerce, Directorate of Agriculture Production department, State
Bank of India and Department of Horticulture (P&M) Department. The
compensation in respect of the structures with installed machinery to be
determined by the PNC Minus the compensation amount already
received under protest on account of structures shall be payable to the
plaintiff within a period of 60 days along with interest at the rate of 6%
per annum w.e.f. 01.01.2009. The committee shall afford sufficient
opportunity of being heard and to produce the documents if any, to the
plaintiff. In case non satisfaction of the plaintiff at the PNC, he shall be
at liberty to have recourse under law for determination of his rights..."
Whereas, in light of Court order supra a preliminary meeting
was held in this office on 13.03.2020 and the following officers
participated in the meeting:
1. Additional Deputy Commissioner, Ganderbal
2. Assistant Commissioner, Revenue, Ganderbal
3. Chief Planning Officer, Ganderbal
Besides the plaintiff Ghulam Mohammad Yatoo S/o Mohammad
Subhan Yatoo R/o Thune Ganderbal was also present in person; and
Whereas, the case was threadbare discussed and all the material records
were perused. The plaintiff was also head at length and after thoughtful
delibrations, the plaintiff was directed to produce the following
i. DIC Registration of the industrial Unit.
ii. Approval if any given by the Director Horticulture
Kashmir for the said Unit.
iii. Financial Assistance if any granted by any authorized
Bank in favour of plaintiff.
iv. Certified Vouchers of the company where from the
machinery has been purchased by the Plaintiff.
v. Proof of Income Tax Returns/Deposition of GST/VAT
thereof.
Whereas, the Sub Divisional Magistrate Kangan was also
directed to submit report, as to whether the plaintiff was having a factory
consisting of four structures with fully installed machinery for running
the business of grading/processing of walnuts and almonds under the
name and Style of M/S Gazala Agro Industries under survey No. 723
Whereas, the plaintiff produced some documents in support of
his claim and also the Sub Divisional Magistrate Kangan submitted
report vide dated 24.06.2020; and
Whereas, subsequently another meeting was held in this office on
29.08.2020, and following officers participated in the meeting:
1. Additional Deputy Commissioner, Ganderbal.
2. Assistant Commissioner Revenue Ganderbal.
3. Commanding Officer, 122 RCC (GREF) Haripora C/s 56
APO
4. Executive Engineer, R&B Division Ganderbal
5. General Manager, DIC Ganderbal.
6. Chief Agriculture Officer, Ganderbal.
7. Marketing Officer, Horticulture (P&M), Ganderbal.
(Representative of Horticulture (Planning & Marketing)
8. Law Officer, Directorate of Agriculture Department
Srinagar (Representative of Department of Agriculture)
9. Sub Divisional Agriculture Officer, Kangan (Representative
of Agriculture Department)
Besides, the plaintiff Ghulam Mohammad Yatoo S/o Mohammad
Subhan Yatoo R/o Thune Ganderbal was also present in person; and
Whereas, the Collector land Acquisition (Assistant
Commissioner, Revenue), Ganderbal present in the meeting informed
that land measuring 01 kanal 17 marlas under survey No. 723 Min at
estate Thune along with four (4) Structures of the plaintiff Ghulam
Mohammad Yatoo S/o Mohammad Subhan Yatoo R/o Thune Kangan
came under acquisition of SSG road at Thune, Kangan. Subsequently
the instant case was settled for fixing of rates though PNC meeting
convened on 29.10.2008, wherein a uniform rate of Rs. 4.50 lacs was
fixed and approved in the PNC. The full payment of compensation of
land measuring 01 kanal & 17 marlas under survey NO. 723 Min
involved under the acquisition has been paid and received by the
plaintiff. Besides, in respect of structures, the assessment was furnished
by the SE R&B vide dated 24.08.2008 which amounts to Rs. 3,69,697/-
. However, the plaintiff was not satisfied with this assessment and
prayed for fresh assessment. Accordingly, re-assessment report was
furnished by SE (R&B) vide No. SE-GBL/Bandi?6236-37 dated
05.11.2009 in respect of four (4) structures which amounts to Rs. 20,
66,089/- and accordingly an amount of Rs. 18, 52,000/- has been paid
to the plaintiff, who received the same under protest; and
Whereas, the amount of compensation which was assessed by
R&B Department was also discussed as the plaintiff had received the
same under protest and the committee reached upon the conclusion that
since the assessment for structures coming under the whole project was
done by R&B department and all the owners had received the due
compensation without any protest, thus the claim of the plaintiff is
unjustified and there is no scope left for fresh PNC at this juncture; and
Whereas, with regard to the claim of plaintiff that the factory
under the name and style of Gazalla Agro Industries was operational
there on the said land, the plaintiff produced the provisional registration
certificate issued by General Manager, DIC, Srinagar vide No.
GMS/DIC/Reg/3530 dated 12.09.2006 in support of his claim.
However, the General Manager District Industries Centre, Ganderbal
present in the meeting submitted that the issuance of provisional
registration does not prove that the Industrial unit has been established
by the plaintiff. Further the General Manager (DIC) Ganderbal averred
that in order to get the machinery installed, the applicant/plaintiff had to
obtain a proper permission from DIC which he had not done, as he failed
to produced any document regarding the same; and
Whereas, the plaintiff present was asked to produce the
power/electricity agreement in order to establish his plea that the factory
was operational on spot, however, he failed to provide the requisite
documents. Moreover, the plaintiff failed to produce the certified sale
vouchers/receipts of the machinery which the plaintiff claimed to
having been installed for running of the Industrial unit; and
Whereas, a report of Sub Divisional Magistrate, Kangan
submitted vide No. SDM/KGN/R/02 dated 24.06.2020 was also perused
which reveals that after spot verification it was observed that no one in
the locality was in the know how regarding existence of any sort of
factory under survey No. 723 min of estate Thune Kanan; and
Whereas, the committee arrived at the conclusion that there was
no factory existing in the name of Gazala Agro Industries as claimed by
plaintiff; and
Whereas, upholding the principles of natural justice, plaintiff
was given one week's time more to produce sufficient/relevant
documents in order to establish his claim; and
Whereas, the plaintiff failed to produce any document despite
giving him ample opportunity which could substantiate his claim; and
Whereas, it has been felt expedient to dispose of the case
accordingly.
Therefore, in view of the facts mentioned above, and the
deliberations held by the committee, it has been established that the
plaintiff has already received fair and just compensation in respect of
building/structure and as such the claim of the plaintiff for fresh PNC in
respect of structures has not been found genuine & is hereby rejected.
Deputy Commissioner
Ganderbal"
7. As is evident from perusal of the record on the file, after issuance of
aforesaid order dated 10.11.2020, by Deputy Commissioner,
Ganderbal, applicant/plaintiff went in to approach the Writ Court with
a writ petition, being WP(C) no.2498/2021 titled as Ghulam
Mohammad Yatoo v. UT of J&K and others, challenging therein
notification dated 12.05.2018. The Writ Court comprising of two
Judges, found that writ petitioner - applicant herein, dissatisfied with
the amount of compensation worked out, had already approached Civil
Court by way of a suit for declaration and injunction, which was
allowed and judgement and decree dated 05.11.2019 was passed. The
Writ Court also found that in compliance to the judgement/decree,
impugned herein, Deputy Commissioner, Ganderbal, considered the
entire matter afresh and passed a speaking order dated 10.11.2020. It
was also found and opined by the learned Writ Court that neither
petitioner/applicant assailed order dated 10.11.2020 nor sought
reference under Section 18 of the J&K Land Acquisition Act and that
he had approached the Writ Court with a writ petition which on the face
of it was not maintainable. Faced with this situation, counsel for
petitioner then sought leave to withdraw that writ petition with liberty
to pursue remedies as might be available to him under J&K Land
Acquisition Act. Accordingly, writ petition was dismissed.
8. As is gatherable from above discussion, after the decision was rendered
in the Execution petition and thereafter in writ petition, the applicant is
now seeking extension of time in filing the Appeal to challenge the
judgement and decree. As would appear from the record, the
applicant/plaintiff had sought the following relief in his civil suit which
came to be decree in terms of impugned judgement:
"...It is prayed:
a) A declaratory decree of an award/cost compensation in respect of land
actually take on spot along with fruit bearing & other trees & four
structured factory building (supra) may be made in favour of plaintiff &
against the defendants under the provisions of J&K Land Acquisition
Act.
b) Damages in respect of the above forcible acquisition may kindly assess
under law & amount of damages (supra) as assessed may kindly be
decreed in favour of plaintiff against the defendants with interest
thereupon.
c) A decree of mandatory injunction be passed in favour of plaintiff against
the defendants, directing the defendants to pay all cost, compensation,
amount of award, amount of damages, jabirana-15% & all the amount
with interest till date of payment as admissible under rules."
9. After the proceedings initiated by applicant/plaintiff for execution as
well as challenging acquisition proceedings, has filed this application
for condoning delay in filing the appeal challenging the judgement and
decree. Had applicant been aggrieved of decree, he would not have
sought its execution. Seeking execution of the decree makes it clear that
applicant was not aggrieved thereof.
10.Even, otherwise, the grounds in the application seeking extension of
time are not sufficient to extend the time by condoning the delay for
filing the Appeal. The grounds taken in the application seeking
condonation of delay as contained in the application are reproduced as
under:
"..That the petitioner/applicant has preferred accompanying the Appeal
before this Hon'ble court on the grounds urged in the main Appeal. The said
Appeal is pending adjudication before this Hon'ble court.
That the appeal of the petitioner is legally firm and strong as such is highly
likely to succeed on merits.
That the appellant/petitioner hereby craves the leave to refer, to rely upon
and adopt in extenso the detailed submissions, averments and contentions/
grounds made in the main appeal for the purpose of disposal of this
application as well.
That it is further submitted that petitioner/appellant approached the trial
court with a civil suit on 20.06.2013 and same came to be decided on
05.11.2019. Thereafter, filed execution proceeding on 05.12.2020 and its
decision came on 31.12.2021. thereafter, filed a writ petition in High Court
04.12.2021 which came to be withdrawn on 28.10.2022. The appellant has
been following his remedy diligently nor has slept over his right in fact, he
has bonafidely perused his case and petitioner/appellant has not gained
anything by delay in fact he has been put to loss by such delay. And if same
is not condoned it would defeat the ends of justice.
11.It is clear from plain reading of the grounds for condoning delay that
the applicant has not been able to show sufficient cause to this extent.
It would also be germane to examine provisions pertaining to
condonation of delay viz. Section 5 of the Limitation Act. It reads as
under:
"5. Extension of prescribed period in certain - Any appeal or
application, other than an application under any of the provisions of
Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be
admitted after the prescribed period if the appellant or the applicant
satisfies the Court that he had sufficient cause for not preferring the
appeal or making the application within such period."
12.Bare perusal of this provision specifies that firstly this is an enabling
provision and nothing more. It enables a Court to condone the delay,
subject to the Court being satisfied that there was "sufficient cause" for
the delay. The Court can only examine the submissions of the parties
on the basis of facts averred and made out in application for
condonation. The Court cannot decide sufficiency of cause de hors the
facts pleaded and made out. Whether cause shown was sufficient or
otherwise, cannot be converted into a question of principle, as
attempted by counsel for applicant herein,
13.Thus, I have no hesitation in coming to the conclusion that phrase
"sufficient cause" involves only questions of fact to be considered by
the Court dealing with an application for condonation of delay, and in
considering sufficiency of cause, no question of principle is involved,
except that a liberal view should be adopted in the examination and
interpretation of the facts which seek to establish "sufficient cause".
14.There is nothing becoming conspicuous from perusal of the application
to suggest and show sufficient cause occurring for condoning the delay.
The law of limitation is intended to provide some sort of discipline in
proceedings before the Court. The very fact that this law prescribes
certain fixed period for doing certain things itself means that the
legislative intention is to enforce discipline in the Court affairs which
cannot be left to the personal whims of a person or to his convenience.
Certain discipline is, therefore, inherent in every concept of the law of
limitation and this can offer no ground for grudge to anyone.
15.In the present case, there is no sufficient cause shown by applicant to
condone the delay. Resultantly application is liable to be dismissed.
16.In view of above, application for condonation of delay is dismissed and
as a consequence of which the appeal shall also stand dismissed.
(VINOD CHATTERJI KOUL)
JUDGE
SRINAGAR
25.10.2024
"Imtiyaz"
Whether the order is reportable: Yes/No
authenticity of this document CM no. 7380/2022
06.11.2024 14:43 In RFA no. 54/2022
