Jammu & Kashmir High CourtDefence Estate Officer vs Cfa No. 26/2008 on 29 November, 2022Page |1\n\n\n\n       HIGH COURT OF JAMMU & KASHMIR AND LADAKH\n                       AT JAMMU\n\n                         CFA No. 26/2008\n                         CFA No. 27/2008\n\n\n\n                                           Reserved on:     17.11.2022\n                                           Pronounced on: 29 .11.2022\nDefence Estate Officer\n                                                       ...Appellant(s)\n\n            Through: Mr.Sunil Malhotra, CGSC,\n\n                              Vs.\nCFA No. 26/2008\nBeli Ram (D) through his LRs & Ors.\nCFA No. 27/2008\nDharmpaul (D) through his LRs & Ors.\n\n                                                          ...Respondent(s)\n\n            Through: Mr.Vikram Sharma Sr. Advocate with\n                     Mr.Sachin Dev Singh, Advocate\n                     Mr. A.K. Shan, Advocate\nCORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE\n\n                            JUDGMENT1. Through the medium of this judgment it is proposed to dispose of\n\n         the above titled two appeals arising out of common judgment dated\n\n         17.01.2008( hereinafter called 'impugned judgment for short) passed\n\n         by the Court of Learned 2nd Additional District Judge Jammu\n\n         (hereinafter called 'reference court' for short) in two references\n\n         made by Collector Land Acquisition [Assistant Commissioner (G)],\n\n         Jammu titled Dharmpaul & Ors.. Vs. Assistant Commissioner (G ) &\n\n         Anr. and Beli Ram & Ors. Vs. Assistant Commissioner (G) & Anr.2. Having been aggrieved of the common judgment passed in both the\n\n         references under section 18 of Jammu & Kashmir Land Acquisition\n                                                               Page |2\n\n\n\n  Act, both these appeals have been preferred by Defence Estate\n\n  Officer Circle Jammu Cantt; Jammu, separately.3. Defence Estate Officer Jammu Circle Jammu Cantt; (hereinafter\n\n  called appellant) vide his No. JKJ/103/ACQ/DEO/181 dated\n\n  17.3.1989 forwarded an indent to the District Collector (Dy.\n\n  Commissioner) Jammu to acquire 142 kanals of land comprising\n\n  under           Khasra            Nos.           81,          84min,\n\n  131min,132min,133,134,136,137,138,139,140,141,142,143,178,179\n\n  and 180 situated at village Narwal Pain Jammu proposed for defence\n\n  purpose     namely       construction    of   residential-cum-office\n\n  accommodation.. The District Collector assigned these acquisition\n\n  proceedings to Assistant Commissioner (G) ( hereinafter referred as\n\n  Collector for short) to proceed in the matter under the provisions ofLand Acquisition ActSamvat 1990. The Collector proceeded in the\n\n  matter after issuance of requisite notifications by the Collector and\n\n  the Govt. The land in question was acquired by Final Award dated\n\n  09.04.1992 passed by the Collector granting compensation to the\n\n  land owners at a uniform rate of Rs. 1.00 lac per kanal alongwith\n\n  Jabrana (Solatium) @15%.4. Aggrieved of the grant of compensation the land owners\n\n  Dharampaul, Rameshwar Singh, Kewal Krishan, Smt. Yasmeen and\n\n  Bahar Din made applications to the Collector whose Reference was\n\n  made by the Collector vide his No. LH-121/68-II dated 16.03.1994.\n\n  Similarly land owners Beli Ram, Gudo and Kuki also applied for\n\n  making reference and the Collector vide his No. LH/121/68 dated\n\n  19.12.1994 also made a reference to the District Court Jammu. In\n\n  both the references the land owners were aggrieved of the rate of\n                                                                  Page |3\n\n\n\n   compensation and claimed that they should be paid compensation at\n\n   least @ Rs. 3.00 lacs per kanal. They also took a plea that in the year\n\n   1991 under the chairmanship of Divisional Commissioner Jammu, a\n\n   high level committee of officers had thrashed out of the matter with\n\n   regard to determination of rate of land in the area having regard to\n\n   the commercial value of an adjoining land decided the market value\n\n   of land @ Rs. 2.75 lac per kanal. The references were received by\n\n   the District Court on 28.03.1994. Vide order dated 28.8.1995 both\n\n   the references were clubbed together by the Reference Court having\n\n   regard to the same question of market value of the land acquired at\n\n   the relevant time being same and the minutes of the proceedings\n\n   were ordered to be recorded in the reference titled Dharam Paul vs.\n\n   Collector Assistant Commissioner (G) Jammu. Respondent Collector\n\n   filed objections, to both the references.5. Based on the pleadings of the contested parties following issues were\n\n   framed for trial of the References by the District Court Jammu:i/        Whether the amount of compensation awarded by the\n\n             Collector for the acquired land is less than the market value\n\n             of the land. If so, what was the market value of the land at\n\n             the time of acquisition? OPP\n\n   ii.       Relief. ?6. After leading evidence by the land owners the intending officer-\n\n   Defence Estate Officer Circle Jammu Cantt; (appellant herein) was\n\n   impleaded as party respondent no. 2 by the District Court Jammu on\n\n   21.1.2006, on an application moved by the land owners. Mr. Prag\n\n   Sharma Advocate appeared on behalf of the Defence Estates Officer\n\n   before the District Court on 17.03.2006 and sought adjournment for\n                                                               Page |4\n\n\n\n  filing of objections. Vide High Court Order dated 01.05.2006 passed\n\n  in APPCR No. 07/2006 with regard to distribution of civil and\n\n  criminal work these cases were transferred from the Principal\n\n  District Court to the Court of learned Additional District Judge\n\n  (Matrimonial Cases ) Jammu, for disposal under law. However,\n\n  these cases were again transferred to the court of learned 2nd\n\n  Additional District Judge Jammu, in terms of Order No. 784-\n\n  89/PDSJ dated 17.05.2007. This is how the cases came up before the\n\n  Reference Court of learned 2nd Additional District Judge Jammu.7. Since there was no representation on behalf of the respondent\n\n  Collector as well as Defence Estate Officer they were proceeded ex-\n\n  parte by the court below vide order dated 13.10. 2007 and the files\n\n  were posted for final arguments.8. The court below, vide impugned common judgment, replied both the\n\n  References, holding that the Collector had granted lower rates @ Rs.\n\n  1.00 lac, per kanal, of the acquired land of the land owners than the\n\n  market rates and ordered that the compensation for the acquired land\n\n  be paid @ Rs. 2.00 lac per kanal.9. The appellant who had not contested both the References, despite\n\n  being summoned and having appeared before the court below, has\n\n  assailed the judgment passed in both the References mainly on\n\n  following three points only:i/      Firstly that the reference made by the Collector was time\n\n           barred and the court below had received the same who was\n\n           not competent to entertain it;ii/     Secondly the references were not decided by the Principal\n\n           Civil Court of the District but by an Additional District\n                                                                  Page |5\n\n\n\n            Judge, who was not competent to decide the reference\n\n            made under theLand Acquisition Act; and\n\n   iii/      thirdly that the rate of compensation, without any basis\n\n            was enhanced to double, of the land per kanal from Rs.\n\n            1.00 lac to Rs. 2.00 lacs per kanal.10. Learned Counsel for the appellant has vehemently argued that the\n\n   reference court had neither framed issue with regard to the limitation\n\n   which it was obligated to do since the reference is to be made within\n\n   six weeks from the date of passing of the final award when the land\n\n   owners/interested parties participate in the acquisition proceedings\n\n   whereas the reference is to made within six months when the land\n\n   owners/interested persons do not participate in the proceedings as\n\n   required under sub clause 2 ofSection 18of the Land Acquisition\n\n   Act. He argued that the judgments passed by the court below do not\n\n   withstand on this point only. He further argued that the references\n\n   have been decided by an Additional District Court and not the\n\n   Principal Civil Court of the District, as such, the judgment having\n\n   passed by incompetent court, is liable to be set aside. In this behalf\n\n   he made refrences of the provision contained undersection 3 (c)whether the expression of the court has been defined to mean the\n\n   Principal Civil Court of original jurisdiction in a district unless the\n\n   government has appointed special judicial officer within any\n\n   specified local limits to perform the functions of the Court under this\n\n   Act. He submits that in absence of any notification the court undersection 18for making a reference means the court of Principal\n\n   District Judge and does not included the Court of Additional District\n\n   Judge. He further argued that Court below has exorbitantly enhanced\n                                                                  Page |6\n\n\n\n   the rate of compensation and doubled the same from Rs. 1.00 land to\n\n   Rs. 2.00 lacs per kanal based on shaky evidence produced by the\n\n   land owners and relying upon sale deeds of small plots to consider\n\n   the rate of big chunk of land acquired at the instance of appellant by\n\n   the Collector. He finally prayed that if the judgment passed in the\n\n   references is not set aside on other counts, the rates of the land\n\n   acquired to be maintained whatever the collector had decided and the\n\n   judgment to that extent for ordering enhancing of the compensation\n\n   be set aside.11. Learned counsel for the respondents on the other hand, argued that\n\n   first plea raised by the appellant with regard to limitation is not only\n\n   legal question but is mixed question of fact and law, the appellant\n\n   had not participated in the proceedings before the court below and\n\n   despite service of notice had not appeared and was proceeded ex-\n\n   parte as such the appellant cannot raise this question before this court\n\n   while hearing in appeal. Learned counsel for the respondents further\n\n   argued that other contentions raised by the learned counsel for the\n\n   appellant that the cases had been decided by an incompetent court of\n\n   2nd Additional District Judge Jammu instead of principal District\n\n   Court Jammu is also misconceived as a Court of Additional District\n\n   Judge is a Co-ordinate Court of Principal Court and is in no way\n\n   inferior to the District Court. Reliance placed by learned counsel for\n\n   the appellant on the definition clause does not hold water in view of\n\n   the fact that he has misunderstood the word Principal District Judge\n\n   to mean as Principal Civil Court of the District. Whereas the fact of\n\n   the matter is that a Court of Principal Judge as well as all other\n\n   Courts of Additional District Judges have the same\n                                                                  Page |7\n\n\n\n   powers under theCivil Courts Actto decide the matters. They have\n\n   relied upon 2 judgments cited as 2007(1) JKJ 161 and 2008 (2) JKJ\n\n   (HC) 28.12.Learned counsel for the respondents with regard to 3 rd submission of\n\n   learned counsel for the appellant that the rates of the land acquired\n\n   argued that the appellant despite affording opportunity of being\n\n   heard and despite issuance of notice absented from the proceedings\n\n   before the court below and without lead any evidence on its behalf or\n\n   cross examine the witnesses examined by the respondents cannot\n\n   take plea now that the rates having not been properly decided of the\n\n   land acquired. Finally, it was prayed to reject the appeals filed by the\n\n   appellant.13.Let us consider all the pleas raised by the appellant one by one. So\n\n   far as the question of limitation is concerned though it is provided\n\n   undersection 18of the Land Acquisition Act that the Collector while\n\n   making references shall consider the period of limitation as to six\n\n   weeks when the land owners /interested persons had joining the\n\n   proceedings before the Collector and within six months from the\n\n   date of final award when they do not participate in the proceedings.\n\n   Since limitation is mixed question of fact and law and is to be\n\n   delineated on the basis of pleadings based on facts and the same\n\n   cannot be decided as legal issue without going into the facts of the\n\n   case. The appellants had chosen not to appear and contest the matter\n\n   before the court below. The Collector while making reference did\n\n   not make any reference to the limitation, however, except assertion\n\n   made that the land owners had made application to him in the first\n\n   week of October, 1993 (1.10.1993, 4.10.1993 and 6.10.1993)\n                                                                   Page |8\n\n\n\n      whereas the final award had been made on 09.04.1992 and the\n\n      application for making reference had admittedly been made after the\n\n      period of limitation. Now the question to be seen as to whether the\n\n      land owners had participated in the proceedings and the final award\n\n      had been passed in their presence.14.      On a cursory look to the final award, it is found that the land\n\n      owners without specifically referring their names had claimed\n\n      compensation @ of Rs. 3.00 lacs per kanal, however, based on the\n\n      report of Tehsildar and keeping in view the earlier awards passed\n\n      and last three years sale deeds and an amount of Rs. 1.00 lac was\n\n      deemed proper rate per kanal. The final award does not specify\n\n      whether the award was passed in presence of the land owners or not.Section 12of the Land Acquisition Act provides that the Collector\n\n      on passing the final award shall give notice of his award to such of\n\n      the persons interested as who are not present either personally or by\n\n      their representatives when the award is made. Having regard to the\n\n      provisions the matter is to be considered as to whether any notice in\n\n      terms ofSection 12of the Land Acquisition Act had been served on\n\n      the land owners. Nothing is born out from the record made available\n\n      as to whether the notice has to be served to the land owners or not.\n\n      Point of limitation has been considered by the Hon'ble Apex Court\n\n      in a case titledState of Punjab vs. Qaiser Jehan Begumreported as\n\n      1963 AIR (SC) 1604 observed that literal and mechanical\n\n      construction of the words "six months from the date of the\n\n      Collector's award" occurring in the second part of clause (b) of the\n\n      proviso would not be appropriate and "the knowledge of the party\n\n      affected by the award, either actual or constructive, being essential\n                                                                Page |9\n\n\n\n   requirement of fair play and natural justice, the expression used in\n\n   the proviso must mean the day and date when the award is either\n\n   communicated to the party or is known to him either actually or\n\n   constructively. It has been further held that knowledge of the award\n\n   does not mean a mere knowledge of the fact that an award has been\n\n   passed. The knowledge must relate to the essential contents of the\n\n   award. These contents may be known either actually or\n\n   constructively. If the award is communicated to the party undersection 12 (2)of the Act the party must be obviously fixed with\n\n   knowledge of the contents of the award whether he reads it or not.\n\n   Similarly when a party is present in court either personally or\n\n   through his representative when the award is made by the Collector\n\n   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\n\n   must mean knowledge of the essential contents of the award looked\n\n   at from that point of view it cannot be inferred that the respondents\n\n   had knowledge of the award. Though an issue on the point of\n\n   limitation had not been framed by the court below, however, the\n\n   court below in para 6 of the judgment has dealt with issue of\n\n   limitation without even being raised by any of the parties and\n\n   concluded that the land owners/interested parties had no knowledge\n\n   with regard to the passing of the award and its contents till they\n\n   obtained the copies of the award for making a reference. Therefore,\n\n   it cannot be said that the References have been entertained by the\n\n   Collectorate as well as Reference Court in time barred matters.P a g e | 1016. Coming to the second question raised by the learned counsel for the\n\n   appellant that the court of Ld. 2nd Additional District Judge who\n\n   decided the References, was not competent Court to decide the\n\n   references made under theLand Acquisition Act.Section 16of the\n\n   Civil Courts Act is the relevant provision to be gone into which is\n\n   reproduced as under:-"16.Additional Judges\n              (1) When the business pending before any District Judge\n                 requires the aid of any Additional Judge or Judges for its\n                 speedy    disposal,     the   Government        may    on     the\n                 recommendations of the High Court appoint such\n                 Additional Judge or Judges as may be necessary\n              (2) An Additional Judge so appointed shall discharge any of\n                 the functions of a District Judge which the District Judge\n                 may assign to him, and in the discharge of those functions\n                 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.\n\n   B.V.Sharma reported as 2008 (2) JKJ (HC) 28, has already\n\n   interpretingsection 16of the Civil Courts Act in a case of J&K\n\n   Arbitration and Conciliation Actof 1997, held that the Additional\n\n   District Judge exercises the same jurisdictional powers as that of the\n\n   Principal Civil Court of original jurisdiction and is not excluded\n\n   from the definition clause. It was, also held that an Additional\n\n   District     Judge     who   is     exercising   the   same    jurisdictional\n\n   functions/powers is not inferior in grade to that of Principal Civil\n\n   Court of original jurisdiction, as such, the Additional District Judge\n\n   is not statutorily incompetent or inferior to the Principal District\n\n   Judge. In view of the interpretation given by this court in the case\n                                                                  P a g e | 11\n\n\n\n   (supra) there is no scope left for the appellant to raise this point that\n\n   an Additional District Judge in a District is not Principal Civil Court\n\n   of the District simply for the reason that Court of Additional District\n\n   Judge except that he is assigned judicial work under the\n\n   administrative orders of Principal District Judge of the district, also\n\n   has equal jurisdiction, in all the matters and is not in any way\n\n   inferior to the court of Principal District Judge. The contention with\n\n   regard to lack of jurisdiction raised by learned counsel for the\n\n   appellant is thus misconceived and is rejected.18. So far as 3rd contention with regard to the enhancing the rates of the\n\n   land in question allegedly in an arbitrary manner to double, by the\n\n   reference court is concerned. The appellant had not participated in\n\n   the trial of the case before the Reference Court. Neither the\n\n   witnesses examined by the land owners were examined nor any\n\n   objection had been taken to the documentary evidence placed on\n\n   record. Without going into the merits of the evidence led by the land\n\n   owners it is suffice to refer an observation of the Reference Court in\n\n   para 16 of the judgment that some other land at Narwal Pain Jammu\n\n   in the same locality, where the land in question was situated had\n\n   been acquired by Collector ( ACR) Jammu on 11.5.1993 @ Rs. 2.70\n\n   lacs per kanal. The Collector had, however, diferred with the rate\n\n   granted by the other Collector, saying that the same was not as per\n\n   logical criteria to be adopted for fair compensation. The Collector of\n\n   this case had almost questioned the other collectorate for granting\n\n   the amount. However, the land owners had a plausible ground to\n\n   claim compensation at higher rates than that was granted by the\n\n   Collectorate.P a g e | 1219. The Reference Court while deciding the issue with regard to the rate\n\n   of compensation has very elegantly and eloquently discussed the\n\n   evidence led by both he parties. The Court has referred to the\n\n   statement of Sunil Sahi, attorney holder of land owners of Dharmpal\n\n   and Rameshwar Singh, claimants Ch. Bahar Din and Beli Ram and\n\n   also their witnesses Sardar Singh, Rajesh Kumar, Kailash Sharma\n\n   and Ashok Kumar who have stated that the acquired land was\n\n   situated at prime location at Narwal Pain and is surrounded by\n\n   Jeewan Nagar, Ashok Nagar, Digiana and Industrial Estate and the\n\n   land in question was just 100 yards away from the main road. The\n\n   Government had acquired land in the year 1991 for widening of\n\n   Satwari-Airport against a compensation of Rs. 2.70 lacs per kanal\n\n   and claimed that the claimants be paid @ Rs. 3.00 lacs per kanal.\n\n   Apart from oral evidence the claimants have also produced certified\n\n   copy of a draft award passed by the State in May 1993 for\n\n   acquisition of land for widening of Satwari-Airport road at Narwal\n\n   Pain Jammu where the compensation was awarded @ Rs. 3.00 lacs\n\n   per kanal. They had also produced copies of two sale deeds which\n\n   have been executed by one Karnail Singh in February 1987 though\n\n   relating to small parcels of land i.e. 6 and a half marlas and 5 marlas\n\n   sold @ Rs. 45,000/-. The Reference Court has rightly observed that\n\n   it may be true that the land for which compensation was paid by\n\n   another Collectorate @ Rs. 2.75 lacs per kanal was more valuable\n\n   than the instant land but the cost difference between that land and\n\n   this land could not be Rs. 1.75 lacs per kanal and the Collector has\n\n   not assigned any plausible justification to award compensation just\n                                                               P a g e | 13\n\n\n\n  @ Rs. 1.00 lac per kanal. Respondents had examined Shri Madan\n\n  Lal Patwari who deposed that as per the record from 1990-92 the\n\n  rate of land at Narwal Pain Jammu adjacent to Jammu Pathankot\n\n  Road which touches Jewan Nagar, Ashok Nagar and Digiana was\n\n  Rs. 46,000/- per kanal. He also added that the land comprising of\n\n  survey No. 132 Narwal Pain is opposite to Industrial Estate. The\n\n  Reference Court on the basis of oral as well as documentary\n\n  evidence has come to the logical conclusion that the Collector had\n\n  not adopted a just criteria for granting of fair compensation,\n\n  particularly, in view of the fact that the Government had paid around\n\n  Rs. 3.00 lacs per kanal for acquisition of land at a particular place\n\n  and why it should be only Rs. 1.00 lac for another patch of land,\n\n  almost at the same place. The Reference Court has rightly come to\n\n  the conclusion that the rate of compensation granted to the land\n\n  owners in this case was far less than the genuine and just\n\n  compensation of Rs. 2.00 lacs per kanal and passed the award\n\n  granting Rs. 2.00 lacs per kanal alongwith statutory interest and\n\n  solatium.20. The appellant in this case despite being served and having\n\n  knowledge that the References have been made in terms ofSection\n\n  18of the Land Acquisition Act after appearing from the court below\n\n  absented from the proceedings and did not contest the matter or led\n\n  any evidence.21. On a consideration of the whole gamut of proceedings before the\n\n  Collectorate and the Reference Court it appears that the Reference\n\n  Court has passed a very reasoned judgment based on sound\n\n  principles of law and does not call for any interference by this court\n                                                                      P a g e | 14\n\n\n\n          while exercising appellate jurisdiction. The appeals are found to be\n\n          devoid of any merit and substance and are liable to be dismissed.22. For the foregoing reasons and observations made hereinabove, both\n\n          the appeals are dismissed and the judgment impugned is upheld.\n\n          There shall, however, be no order as to costs. Compensation, if any,\n\n          deposited with the Registry of this Court be disbursed amongst the\n\n          claimants/land owners after their proper verification in terms of the\n\n          Reference Court Award.(MA CHOWDHARY)\n                                                 JUDGE\nJammu\n29.11.2022\nMujtaba\n\n\n             Whether the order is reportable:      Yes / No