2018 PLP 31 (YLRN)

MUHAMMAD SHERAZ KAYANI, J.

The above captioned writ petition, filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the following relief has been claimed by the petitioner:-- "Therefore, it is very humbly prayed that by accepting this writ petition the following relief may very graciously be granted in favour of the petitioners:- A). Direct the respondents to pay the outstanding rent from 1961 to 2004 aggregating to Rs.23,94,500/- as per verdict of the learned High Court dated 12.04.2014, upheld by the Honorable Supreme Court vide its judgment/decree dated 17.03.2016 (PB/2 and PB/3), forthwith. B). Direct the respondents to pay the rent as per dictum of section 14(2)(i) AJK Rent Restriction Act, 1986 from 2005 to 2016 with 25% increase, as follows:- agreed rent was 16000/- per month. From 2005 to 2007 @ 20000/- pm Rs. 576000/- From 2008 to 2010 @ 20000/- pm Rs. 720000/- From 2011 to 2013 @ 25000/- pm Rs. 900000/- From 2004 to 2016 @ 31250/- pm Rs. 1125000/- Grand total Rs.3321000/- In case of default vacate the premises and surrender to the petitioners their land, forthwith. C). Direct the respondents to pay rent due to the petitioners from 2017 onward with 25% increase. D). Nullify the award 534-38 dated 19.06.2004 being derogatory to the provisions of Sec. 4.4.14(i) of the Interim Constitution Act, 1974 for taking the land of petitioners without paying compensation as well as for violation of the provisions of Land Acquisition Act. E). Direct the respondents to utilize their own land 02 kanals 6 marlas survey No.1124/404 and 1125/405 situated at Bhimber in nearby vicinity and surrender the possession of land of petitioners to the petitioners, forthwith. F). Direct the respondents to show cause, as to why they disrespected/non-complied with the verdicts of the Honorable Supreme Court and learned High Court deliberately, knowing the consequences, thereof. Any other relief which the august Court deem appropriate may also be granted."

2. Precise facts forming the background of the instant writ petition, as per the claim of the petitioners are that their land was taken over by the Agriculture Department in the year, 1961 without payment of compensation or the rent of the same. It has been stated that in year, 2004 the land in question was acquired by the respondents and payment of rent for the past period was also ordered by the Collector, Land Acquisition. Feeling aggrieved from the determination of rent amount, the petitioners filed a reference application before the Reference Judge/District Judge, Bhimber, which after hearing the parties, was decided in their favour and rent amount was enhanced vide judgment and decree dated 11.05.2006. The said judgment and decree was challenged before this Court and finally the matter was resolved by the apex Court of Azad Jammu and Kashmir vide judgment and decree dated 08.03.2016. The petitioners have filed the instant writ petition for enhancement of the rent amount on 11.04.2017.

3. The respondents were summoned for filing comments and they have complied with the order of the Court, negating the stance of the petitioners and stating in the comments that the petitioners have already availed the remedy, sought to be granted through the instant writ petition and the matter has been resolved, finally by the apex Court of Azad Jammu and Kashmir. The other facts and grounds of the petition have also been negated by the respondents.

4. Sardar Mushtaq Hussain Khan, Advocate, the learned counsel for the petitioners, addressed the Court and reiterated the facts and grounds enumerated in the petition. The learned counsel maintained that no state subject can be deprived of, from his property except with due course of law and payment of adequate compensation and the petitioners' landed property was taken over by the Agriculture Department - respondents in the year, 1961 but the same was acquired through an award, issued in the year, 2004 and the rent of the period, prior to the award was determined by the Collector Land Acquisition in a meager amount. The learned counsel craved for enhancement of rent rate and annual increase in the same at the rate of 25% per annum. In support of his contention the learned counsel referred the following case law: - 1. 2004 SCMR 538, 2. 2009 CLC 1108 [Peshawar] 3. 2004 CLC 682, [Peshawar] and 4. an unreported case decided by this Court, Civil Appeal No.102-A/2008 titled Deputy Military Estate Officer, Muzaffarabad v. Gulzar Ahmed and others, decided on 25.07.2013.

5. While refuting the claim of the learned counsel for the petitioners, the learned AAG contended that the petitioners, feeling aggrieved from the determination of the rent amount, preferred a reference application and thereafter, the matter has finally and ultimately resolved by the apex Court of Azad Jammu and Kashmir, therefore, the petitioners cannot raise same plea and claim same relief, by invoking extra ordinary jurisdiction of this Court. The learned counsel maintained that the petitioners have not come before the Court with clean hands, hence are not entitled to any relief on the basis of an already resolved controversy and also craved for dismissal of the writ petition with costs.

6. I have heard the learned counsel for the parties, perused the record made available with the file and considered the controversy with due care.

7. Previously, when formally, the land of the petitioner was acquired through award issued in 2004. Feeling aggrieved of the same, the petitioners filed a reference application bearing No.13 before the Reference Judge/District Judge Bhimber on 05.08.2004 and specifically mentioned therein that the land under reference was taken by ,the respondent - agriculture dptt in year, 1961 and before issuance of the award, they had utilized the land of the petitioner, illegally and thus, they are entitled to the rent amount for the period from 1961 to the issuance of the award and they had challenged the propriety of the rent amount determined by the Collector, Land Acquisition. After obtaining objections, the learned Reference Judge, framed as many as 7 seven issues, including issues Nos.1 and 3 pertaining the rent dispute. Both the issues read as under:

8. These issues were decided in favour of the petitioners and the rent amount was enhanced by the learned Reference Judge and the judgment and decree of the Reference Judge was challenged before this Court and thereafter, the matter went before the apex Court of Azad Jammu and Kashmir and the controversy was ultimately and finally resolved vide judgment dated 08.03.2016.

9. Now, the petitioners, by filing the instant writ petition, have sought the same remedy in respect of the rent amount which is not permissible under law. Under Order II of C.P.C., a plaintiff must include the whole of the claim for which he is entitled, with regard to the same cause of action. Under rule 2 of the said order, when a plaintiff intentionally relinquishes any portion of his claim he cannot sue in respect of that portion, afterwards. So, the reference of the petitioners, when was filed, the cause of action was the same as shown in the instant writ petition and on the same cause of action, the petitioners claim enhancement of the rent amount and substantially, in this writ petition, they have also claimed the same relief, (i.e increase in the rent amount) with the ratio of 25% after every three years.

10. When, the issues were framed between the same parties, under the same title and the same were resolved by the Court of competent jurisdiction, then, in no way, the petitioners can come in this Court by invoking extra ordinary jurisdiction of this Court, for the same relief.

11. The learned counsel for the petitioners, during the course of arguments, referred section 34 of the Land Acquisition Act, as well. The said Section has nothing to do with the enhancement of the rent amount. This provision of law has been enacted by the Legislature with the purpose that if possession of any land is taken by the Government or any other authority without depositing or payment of the compensation amount , the land owner can raise this plea before the Court and he can be compensated along with interest rate of the compensation amount but in the present case, admittedly, the award was issued in the year, 2004 and a partial amount of compensation has also been deposited by the respondents.

12. Even otherwise, the petitioners should have claimed this relief in the previous round of litigation because the land was taken over in the year, 1961 and when, they filed reference application before the reference Judge, this plea was available to them but, they have omitted to raise this plea, under Section 34 of the Land Acquisition Act, so, under Order II, Rule 2 and section 11 of the C.P.C., they are barred to raise this question in this writ petition.

13. The case law, referred to and relied upon by the learned counsel for the petitioners, due to distinguishable facts and circumstances, its not applicable in the case in hand.

14. The pith of the above discussion is that the instant writ petition fails to make out case of admission, hence, stands dismissed in limine. ZC/45/HC(AJK) Petition dismissed.