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:
MR JUSTICE M. A. CHOWDHARY, JUDGE
HON’BLE
(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
th
Order dated 13 of September, 2021, the present Appellants, being the sons
of the deceased Appellant, were brought on record as Appellants.
Page 2 of 7
CFA No. 95/2006
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,
th
Anantnag vide No. LA (345)92/429-32 dated 12 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
st
terms of the impugned Judgment dated 1 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
st
pursuance of Judgment dated 1 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
Page 3 of 7
CFA No. 95/2006
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
th
12 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 land measuring 03 Kanals and 16 Marlas
’s
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
th
Collector on 14 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.
Page 4 of 7
CFA No. 95/2006
th
09. The Collector, vide his No. LA (345) 92/429-32 dated 12 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
nd
Objections to the Reference on 22 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
th
Award had been passed on 14 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
th
Court, vide Order dated 6 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?
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CFA No. 95/2006
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
st
Judgment dated 1 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
th
14 of December, 1995 was sought to be referred to the Reference Court on
th
12 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
th th
dated 24 of May, 1988 and 29 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
Page 6 of 7
CFA No. 95/2006
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.
th
14. The sale deed dated 24 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
th
deed dated 29 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
Land Acquisition Act.
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
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CFA No. 95/2006
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
th
appeal, is that he had no knowledge about the passing of the Award on 14
of December, 1995 whereas the application for making Reference before
th
the Collector was made by the Appellant on 12 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
th
April 30 , 2024
TAHIR
“ ”
i. Whether the Judgment is speaking? Yes.
ii. Whether the Judgment is reporting? Yes.
Tahir Manzoor Bhat
I attest to the accuracy and
authenticity of this
document