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2010 DIGILAW 553 (JK)

Sainik Co-operative House Building Society Ltd. v. State

2010-11-04

J.P.Singh, Sunil Hali

body2010
J.P. Singh, J. 1. Kuldeep Singh-respondent No.3's Writ Petition OWP No.932/2006 filed against the State of Jammu and Kashmir, Collector, Land Acquisition, Assistant Commissioner(R), Jammu and Sainik Co-operative House Building Society Limited, Jammu, the appellant, was allowed on December 20, 2006 directing Collector, Land Acquisition to conclude the acquisition proceedings regarding land measuring 60 Kanals 10 Marlas falling under Khasra No.773-min and 772-min situated at village Sunjwan, Jammu, within three months from the date copy of the order was served upon him, provided the acquisition proceedings had been so initiated. 2. The appellant has filed Appeal against the directions of the Writ Court urging, inter alia, that the directions were unsustainable, in that, opportunity of hearing had not been allowed by the Court before issuance of the directions. 3. The Appeal being delayed by one thousand two hundred and twenty eight (1228) days is accompanied by an Application seeking condonation of delay in filing the Appeal. 4. The case set up by the appellant to seek condonation of delay is that it had acquired knowledge of the judgment of the Writ Court on February 07, 2008, when it had appeared in answer to the notice issued on Motion of Contempt being COA(O) No.42/2007. The Contempt Petition was dismissed on 17.03.2010. The delay in filing the Appeal is sought to be condoned on the ground that the counsel engaged by the appellant had never advised the appellant to file Appeal against the judgment. 5. Respondent No.3 has filed Objections to the appellant's Application saying that the facts stated in the Application were incorrect because the appellant was very much in know of the judgment delivered by the Court much before the date indicated in the Application because the reference of the judgment, sought to be appealed against, stood made in a subsequent Writ Petition on the same subject filed by Subedar Shiv Nath Mengi and five others against the State and others including the appellant. The appellant not being prevented by any sufficient cause in filing the Appeal, the delay in filing the Appeal could not be condoned additionally because the Appeal had been filed to avoid the Collector's direction to the appellant to deposit the amount payable as compensation for the acquired land. 6. The appellant not being prevented by any sufficient cause in filing the Appeal, the delay in filing the Appeal could not be condoned additionally because the Appeal had been filed to avoid the Collector's direction to the appellant to deposit the amount payable as compensation for the acquired land. 6. We have heard learned counsel for the parties on the merits of the Appeal as well to consider as to whether a case for condonation of delay was made out by the appellant. 7. During the course of the hearing, it transpired that the appellant-Society itself had sought acquisition of the property in question finding that the land over which, it claimed its right, had neither been earlier acquired nor transferred to it by the Government. 8. Perusal of the judgment impugned in the Appeal indicates that although the Writ Court had allowed respondent No.3's Writ Petition, without issuing Post Admission Notice to the appellant, and hearing only other respondents including the Collector, yet the directions issued by the Court appear innocuous to us in so far as the appellant was concerned, in that, having itself asked for acquisition of the land in question under the State Land Acquisition Act, the appellant cannot be said aggrieved by the directions of the Court to the Collector to complete the acquisition proceedings within the time stipulated. 9. That apart, the directions issued in respondent No.3's Writ Petition are found to have been supplemented by the directions issued in subsequent Writ Petition, wherein appellant too was a party respondent and six months' time was allowed to the Collector to conclude the acquisition proceedings for the land in question. 10. After having gone through the copies of the judgments placed by respondent No.3 on records, which pertain to the acquisition of the land in question, we are of the view that the appellant was in know of the directions issued on respondent No.3's Writ Petition much before February 07, 2008 and had not taken any step to file Appeal against the directions. Even if, one were to believe that the applicant/appellant-Society came to know about the directions of the Writ Court on February 07, 2008, there is not even a whisper as to why the Appeal was not filed by it till August, 2010, for the plea projected by the applicant/appellant that its counsel never advised it to file Appeal against the judgment, is found too vague and ambiguous for acceptance because barring aforesaid bald statement in the Application, there is no mention therein as to whether the appellant had sought any legal advice in the matter and if so from whom. Appellant has not placed either the Advocate's Affidavit, who was contesting its case earlier or the Affidavit of the person, who had contacted the Advocate seeking advice in the matter, which fact too indicates that the plea projected by the applicant/appellant is an afterthought coined only to facilitate the filing of, otherwise misconceived Appeal, because having itself sought acquisition of the property in question, invoking the provisions of the Jammu and Kashmir State Land Acquisition Act, the appellant cannot be said aggrieved by the directions of the Court requiring the Collector, Land Acquisition to complete the acquisition proceedings, which even otherwise, he is required so to do in terms of the provisions of the Land Acquisition Act. 11. For all what has been said above, we find the applicant/appellant to have miserably failed to project any case, that may be construed as sufficient cause, which had disabled him in not filing the appeal for one thousand two hundred and twenty eight days. 12. Accordingly, finding no merit in the appellant's Motion, we would dismiss CDLOW No.19/2010 alongwith LPAOW No.43/2010.