2018 PLP 2064 (YLR)

CH. MUHAMMAD IBRAHIM ZIA, J.

The captioned Appeals Nos. 64 of 2009 and 66 of 2009 have been directly filed before this Court whereas Appeal No. 76 of 2011 has been filed by leave of the Court to assail the legality and correctness of the consolidated judgment of the High Court recorded on 16.7.2009. Having involved common question of law and facts, we propose to dispose of these appeals through this consolidated judgment.

2. Necessary facts precisely stated are that Collector Land Acquisition Mangla Dam Raising Project, (hereinafter to be referred as MDRP), Zone-II Mirpur acquired a junk of land out of which 20 kanals and 10 marlas is owned by Gulzar Hussain, appellant. He was awarded compensation in the sum of Rs.14,90,687/- along with 15% compulsory acquisition charges, (hereinafter to be referred as CAC). Feeling aggrieved, he filed a reference for enhancement of amount of compensation on numerous grounds. The learned Reference Judge MDRP, vide order dated 1.9.2007 deleted the names of respondents Nos. 1 to 3 (in Appeal No. 64 of 2009), except Collector Land Acquisition, MDRP, Mirpur. After necessary proceedings, the learned Reference Judge, MDRP, Mirpur vide judgment dated 11.12.2007 enhanced the amount of compensation of the land owned by the appellant-land owner, measuring 20 kanals and 10 marlas situated at village Pail Bakhshi, Tehsil Dadyal as Rs. 75,000/- (seventy five thousand) per kanal for "Gheir Mumkin" ( ) and Rs. 100,000/- (one lac) per kanal for "Banjer Qadeem", land, along with 15% compulsory acquisition charges. The Collector, MDRP was directed to manage for payment of the enhanced amount of Rs. 5,89,375/- along with 15% compulsory charges within a period of ninety days.

3. Feeling aggrieved from the judgment of learned Reference Judge, MDRP, Mirpur, both the parties filed cross appeals in the High Court. The appellant-land owner claimed further enhancement in the compensation amount whereas Water and Power Development Authority (hereinafter to be referred as WAPDA) challenged the enhancement of compensation made by the learned Reference Judge. The learned High Court, after necessary proceedings, disagreed with the findings recorded by the learned Reference Judge, MDRP Mirpur, dismissed the appeal filed by WAPDA and while accepting the land owner's appeal determined the compensation of the acquired land as Rs 8,00,000/- (eight lac) per kanal along with 15% CAC.

4. The judgment of the High Court has been assailed through instant appeals before this Court. The appellant-land owner seeks further enhancement in the compensation amount as Rs. 10,00,000/- (ten lac) per Kanal along with 15% CAC whereas WAPDA seeks quashment of the judgment of the High Court dated 16.7.2009.

5. Sardar Muhammad Azam Khan Advocate, the learned counsel for the appellant-land owner, after narration of relevant facts submitted that the impugned judgment of the High Court requires modification. The appellant-land owner has produced sufficient evidence before the Reference Judge regarding the fact that the market value of the acquired land at the relevant time was above Rs.10,00,000/- per kanal. Despite this legal proof, the Reference Judge has determined the market value of the acquired land as Rs, 8,00,000/- per kanal, hence, the same requires modification. While seriously objecting to the cross appeals filed by WAPDA, he submitted that nefther they are necessary party nor have got any legal right of appeal. He further submitted that the Reference Judge has rightly vide order dated 1.9.2007, deleted the names of respondents Nos.1 to 3 from the Reference. According to provisions of section 20 of the Land Acquisition Act, the only Collector Land Acquisition is necessary party. He further submitted that the evidence produced by the appellant remained un-rebutted as no evidence from the other side has been produced before the Reference Judge. Thus, while accepting the appeal, the compensation be enhanced as Rs.10,00,000/- per kanal and the counter appeals filed by WAPDA may be dismissed.

6. Ch. Shah Wali Advocate, the learned counsel, who is also representing the appellant-land owner, in the counter appeals filed by WAPDA, adopted the same line of arguments as addressed by Sardar Muhammad Azam Khan and submitted that the appeals filed by WAPDA are not maintainable under law. The appellant-WAPDA has failed to point out any illegality in the impugned judgment. The judgment of learned High Court is quite in accordance with the statutory provisions and principle of justice, hence, the appeals filed by WAPDA be dismissed.

7. Haji Ch. Muhammad Afzal Advocate the learned counsel for respondents in Appeal No. 64 and for the appellants in counter appeals Nos.66 and 76, while refuting the arguments of counsel for the appellant land owner, mainly stressed on the point that the whole proceedings before the Reference Judge were futile exercise as the persons for whom the land has been acquired and in whose favour the award has been granted by the Collector Land Acquisition, were neither heard nor given any notice. Thus, the judgment of Reference Judge is against the basic principle of administration of justice i.e Audi Alteram Partem. He further submitted that this point was specifically raised in the High Court and strongly argued but unlukily the learned Judge High Court neither attended this vital point nor resolved the same. To substantiate his arguments, he referred to paras. 2 to 4 of the memo of appeal filed in the High Court and also the affidavit submitted by Mr. Zakria Bhatti, Advocate, a senior counsel regarding the fact that these grounds were forcefully agitated in the High Court, thus, without discussion on other merits of the case, the impugned judgment on this sole ground is not sustainable. He further contended that the arguments of the learned counsel for the appellant-land owner that the evidence remained un-rebutted is baseless as no notice was served upon the interested persons to defend the reference, thus, the question of rebuttal of evidence does not arise.

8. We have heard the learned counsel for the parties and perused the record made available. In our opinion, in the peculiar facts of these appeals, it hardly requires any detailed discussion on the merits of the case regarding the market value or the amount of compensation of acquired land. We are going to decide these appeals on very vital question of deletion of the names of the parties i.e. respondents Nos.1 to 3 in the reference vide order dated 1.9.2007 by the Reference Judge MDRP and failure of the High Court in resolving this very important point raised in paras. 2 to 4 of the memo of appeal and argued in the High Court. The learned Reference Judge on presentation of the Reference, passed the order dated 1.9.2007 which speaks as under:- Thus, it is clear that none of the parties for whom the land is acquired and in whose favour award has been issued were given notice. They were arrayed parties before the learned Reference Judge, but deleted, thus, question of producing evidence in rebuttal does not arise.

9. It is further very amazing that despite this order of the Reference Judge, the learned single Judge in the High Court fell in gross error and mistake of fact while recording findings in the impugned judgment in the following manner:- "The respondents (WAPDA Authorities), have contested the reference by filing objections and they fully defended the proceedings taken by the Collector, while acquiring the awarded land. The learned Reference Judge, after framing the necessary issues and concluding the trial, partly accepted the reference and enhanced the compensating, amount as 1,00,000/- per kanal along with 15% compulsory acquisition charges." Thus, in presence of such gross wrong appreciation of facts and record by the High Court, it hardly requires any further deliberation for drawing the conclusion that the impugned judgment is passed without application of proper judicial mind.

10. In this case, a very important legal question of public importance whether the proceedings in the reference can be conducted without giving notice to the interested persons for whom the land is acquired and in whose favour award has been issued is involved. The learned Reference Judge deleted the names of the interested persons while referring the statutory provision of clause 'C' of section 20 of the Land Acquisition Act. It will be useful to reproduce here section 20 of the Land Acquisition Act, which reads as under:- "

20. Service of notice.

The Court shall thereupon cause a notice specifying the day, on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely: .... (a) the applicant; (b) all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and (c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector." A bare reading of this statutory provision reveals that prima facie, the learned Reference Judge remained unsuccessful to understand the spirit of this statutory provision. Under clause 'C' of this section, service of notice upon the Collector does not mean that all other persons have become irrelevant or their names should be deleted. However, as this question has not been resolved by the High Court in the impugned judgment, therefore, we avoid to make any further definite observation and leave it open for the High Court to properly attend and resolve the same in a legal fashion.

11. We have also noticed that the Collector Land Acquisition has shown the AJ&K Government, WAPDA and Commissioner, Mangla Dam Raising Project, as interested persons in the acquired land as per statement submitted under the provision of section 19 of the Land Acquisition Act. The argument of learned counsel for the appellant-WAPDA and others finds support from the record. Important legal grounds have been agitated in paras 2 to 4 of the memo of appeal filed in the High Court and there is also an affidavit of very senior counsel who solemnly deposed that these grounds were forcefully raised and argued before the High Court at the time of hearing of the appeals. This affidavit remained un-rebutted, hence, this question of fact had attained status of conclusive proof.

12. We have minutely perused the impugned judgment of learned High Court. Unfortunately, this vital legal question of public importance, specifically raised and argued in the High Court has neither been attended nor resolved. In our considered opinion, it is very important point which goes to the root of the whole case, hence, without its resolution it will be futile exercise to take into consideration all other aspects of the case.

13. In the light of above stated facts, it is clear that WAPDA and others for whom the land is acquired and award is issued, were arrayed as respondents in the reference but due to suo motu deletion of their names by the Reference Judge, neither notices have been issued to them nor they have been provided an opportunity of hearing before conclusion of the proceedings in the reference. Thus, it is clear that the proceedings in the reference have been conducted without providing opportunity of hearing to the necessary party, which is clear violation of the principle of natural justice, i.e. Audi Alteram Partem. Moreover it is also settled principle of administration of justice that no one should suffer for any act or omission of the Court or its official. In this case, as it has been observed that Reference Judge on his own accord deleted the names of the respondents which resulted into miscarriage of justice, therefore in this state of affairs, we have left with no option except to set-aside the impugned judgment of the High Court which is common in all three appeals and remand the case with very heavy heart to the High Court with the direction that both the appeals be decided afresh in the light of hereinabove observations, especially the point of interpretation of section 20 of the Land Acquisition Act and the objections raised in grounds 2 to 4 of the memo of appeal filed by WAPDA and others. It is also desired that as the parties are facing litigation since the year 2007, therefore, expeditious disposal of these appeals for the ends of justice is necessary. The office shall transmit the record of Courts below immediately. All the supra titled appeals are disposed off in the manner indicated above. ZC/13/SC(AJ&K) Cases remanded.