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2009 DIGILAW 271 (JK)

Director Sheep Husbandry v. Kashmiru

2009-05-28

MANSOOR AHMAD MIR

body2009
1. Appellants .have challenged award/judgment dated 9th April, 2004 passed by Reference Court (District Judge), Udhampur in a reference titled as Kashmiru and Ors. v. Collector Land Acquisition, Udhampur, for short hereinafter `the impugned award, on the grounds disclosed in the memo of appeal. BRIEF FACTS: 2. A notification under Section 4 Sub clause (1) of Jammu and Kashmir Land Acquisition Act, 1990 (1934 A. D), for short, `the Act was issued by the Collector on 14th August, 1992. Acquisition proceedings were concluded by the Collector in terms of the award dated 5th February, 1997. 3. Respondents feeling aggrieved made a protest by the medium of applications moved in terms of Section 18 of the Act. Accordingly, reference came to be made by the Collector to the Reference Court- District Judge, Udhampur. 4. Appellant no. 2 Collector Land Acquisition filed objections and later on came to be adopted by the intending Department-appellant no. 1. Following two issues came to be framed:- "1. Whether the compensation has not been assessed according to the market rate by the respondent, if so, what was the market rate of the land acquired? O.P. 2. Relief." 5. Claimants-owners-respondents examined Lachman Dass, Karnail Chand, Yaqoob Hussain, Om Parkash and Chain Singh as their witnesses in support of their claim. The appellants examined Sukhdev Singh, Patwari, Baldev Chand and Prem Nath, employee of the Department and Mohd Ismail, Girdawar in rebuttal. The Reference Court after scanning the evidence and record enhanced the compensation and, accordingly, the impugned award came to be passed. Feeling aggrieved, the appellants have questioned the same by the medium of this appeal. 6. The appellants have assailed the impugned award only on three grounds. Ground nos. 1 and 3 are that the impugned award came to be passed against the facts and the District Judge has failed to take into consideration the market rate of the land which was prevalent at the relevant point of time. The third ground is that reference was time barred. 7. The appellants have not taken the ground of limitation in the memo of objections filed before the Collector and that is why the issue, vis-a-vis, limitation was not framed. 8. Award holders-respondents have specifically pleaded in the memo of reference that the award was passed at their back and came to know later on. 7. The appellants have not taken the ground of limitation in the memo of objections filed before the Collector and that is why the issue, vis-a-vis, limitation was not framed. 8. Award holders-respondents have specifically pleaded in the memo of reference that the award was passed at their back and came to know later on. It is further averred and pleaded that they have received the compensation under protest. Collector and the department-appellants have not denied the said pleadings. Thus stands admitted in terms of Order 8 Rule 5 of the Civil Procedure Code, for short hereinafter `the Code. It is apt to reproduce Order 8 Rule 5 hereunder:- 5. Specific denial (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:.........................." 9. It clearly mandates that if fact is not specifically denied or evasively denied, it is deemed to be admitted. The appellants-Collector and the Department have not denied the said averment thereby have admitted that the references made are within time. 10. Section 18 sub clause (2) of the Act provides that if a person is present or his represented before the Collector at the time when the award was made, he can make reference within six weeks from the date of the award. In other cases, he can file application, within six weeks from the date of service of notice under section 12 (2) of the Act, if the notice is not served within six months from the date of knowledge of award. It is not the case of the respondents that claimants were present at the time of award or notice under section 12 (2) of the Act was served upon them. As discussed hereinabove, the claimants have specifically pleaded that they came to know about the award later on. Admittedly, the award came to be passed on 5.2.1997 and the applications came to be presented on 22nd July, 1997. Thus came to be filed within time. 11. In the given circumstances this ground fails. 12. Learned counsel for the appellants have not seriously contested the other grounds. However, the only issue is, vis-a-vis, adequacy of compensation. Admittedly, the award came to be passed on 5.2.1997 and the applications came to be presented on 22nd July, 1997. Thus came to be filed within time. 11. In the given circumstances this ground fails. 12. Learned counsel for the appellants have not seriously contested the other grounds. However, the only issue is, vis-a-vis, adequacy of compensation. Admittedly, Tehsildar had made a report during acquisition proceedings and has stated in the report that the market rate for the cultivable and uncultivable land in that area was Rs. 25,000 and Rs. 20,000 respectively. The said report is not denied by the appellants and they have failed to lead any evidence in rebuttal to the said report. Respondents/claimants have led evidence and all the witnesses have stated in one voice that the amount of award is meager and Collector has wrongly and erroneously assessed the compensation and fixed the market rate. The appellants have not led any cogent evidence in order to establish that the compensation assessed and amount awarded by the Collector was reasonable. 13. The Tehsildar has made a report, the mention of which is made in the award. The said report came to be made and filed while performing public duties and in discharge of official functions. The said report is admissible in evidence. My this View is fortified by the Apex Court in case titled State of J&K v. Mohammed Mateen Wani reported in AIR 1980 SC 2470. This Court also in case titled Collector Land Acquisition and anr. V. Sajida Begum and ors, reported in 2007 (1) SLJ 142, 2007 (2) JKJ 448 laid down the same principles. Viewed thus, the other grounds, i.e., the grounds 1 and 3 are also devoid of any force. 14. Keeping in view the discussion made herein above, the learned District Judge has passed a well reasoned and speaking impugned award, needs no interference. Accordingly, the appeal fails and dismissed. The impugned award is upheld.