2020 PLP 35 (CLCN)

GHULAM MUSTAFA MUGHAL, J.

The captioned appeal by leave of the Court arises out of the judgment dated 27.2.2019 passed by the Azad Jammu and Kashmir High Court in Civil Appeal No. 62 of 2015.

2. The brief facts forming the background of the captioned appeal are that the appellant, herein, acquired the land of the respondents, herein, situated at Mozia Khum Drang Shoukat Line, Muzaffarabad for Pak Army vide award No.8/1980, issued on 14.5.1980. Feeling aggrieved from the said award, the respondents, herein, filed a reference application before the learned Reference Judge, Muzaffarabad on 21.12.199(sic.) for enhancement of the compensation of the awarded land. It was stated in the reference application that the Collector Land Acquisition determined a very meager price of the acquired land and before issuance of the award he did neither issue notices nor heard the land-owners. It was averred that the market value of the acquired land is more than Rs.3,00,000/- per kanal. It was further averred that the award was issued only to the extent of land comprising survey No. 20 measuring 1 kanal 10 marla, whereas the compensation regarding the trees and other improvements in the acquired land was not mentioned in the award. The reference was contested by the respondents by filing written statement/objections, whereby they refuted the claim of the petitioners in toto, and requested for dismissal of the reference application. The learned Reference Judge in light of the pleadings of the parties framed issues and directed them to lead evidence pro and contra. At the conclusion of the proceedings, the learned Reference Judge vide judgment and decree dated 18.2.2015 while accepting the reference application enhanced the compensation to the tune of Rs.3,00,000/- per kanal along with 15% C.A.C. Feeling dissatisfied from the said judgment and decree, the appellant, herein, filed an appeal before the Azad Jammu and Kashmir High Court on 19.5.2015. The learned High Court after hearing the parties vide impugned judgment and decree dated 27.2.2019 has dismissed the appeal.

3. Raja Muhammad Arif Rathore, the learned Advocate appearing for the appellant argued with vehemence that the impugned judgment passed by the learned High Court as well as the Reference Judge is illegal, erroneous, arbitrary and perverse because the compensation has been enhanced to the tune of Rs.30,000/- per kanal on the basis of oral evidence produced by the respondents. The learned Advocate further argued that no sale- deed or other tangible documentary evidence has been produced by the appellant for assessment of the market value of the land and absence of documentary evidence, oral evidence cannot be considered at all. The learned Advocate further argued that the judgment has been given in vacuum, hence, is liable to be recalled.

4. Sardar Abdul Sammie Khan, the learned Advocate for the respondents argued -with vehemence that market value of the land can also be proved through oral evidence provided that the same is confidence inspiring. He submitted that the appellant, herein, has not cross-examined the witnesses on the material point regarding the market value of the land therefore, they cannot claim any allowance. The learned Advocate next argued that the Courts below have rightly relied upon oral evidence and conclusion reached at is just and hardly requires any interference.

5. We have heard the learned Advocates representing the parties and have gone through the record of the case. A perusal of the record reveals that reference was filed against award No. 8/1980 dated 14.5.1980 issued by the Collector Muzaffarabad before the Reference Judge on 21.12.1999. It was stated that the market value of the awarded land is not less than Rs. 3,00,000/- per kanal but the respondents have arbitrarily fixed the compensation of the land. Through the facts stated above the land measuring 1 kanal 10 marla from Khasra Nos. 19, 20 and 21 belonging to the respondents, herein, was acquired, which was admittedly a commercial area. After hearing the parties, the learned Reference Judge has amended award No. 8/1980 pertaining to Khasra No. 20 renumbered as 87 situated in Kham Dharang to the tune of Rs.3,00,000/- per kanal besides C.A.C. The appeal filed against the judgment and decree passed by the Reference Judge was dismissed by the learned High Court. The contention of the learned Advocate for the appellant is that the market value of the land has not been proved through any documentary evidence i.e. sale-deed etc. and the compensation cannot be enhanced on the basis of oral account, is devoid of any force. The learned High Court has based his judgment on the case reported as Fazalur Rehman and others v. General Manager, S.I.D.B. and another (PLD 1986 SC 158). In this case, the learned Supreme Court of Pakistan has observed that even the oral account can be considered for enhancement of compensation because while deciding the cases involving the questions of life and death the same is accepted. At page 162 of the report. It has been observed as under:- "I would, therefore, like to emphasize that while determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the, 'past sales' should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as a Court witness) local property dealer or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even on relying upon the oral testimony with respect to the market value of the property intended to be acquired, because even while deciding cases involving questions of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful, and even necessary, to examine such witnesses while determining the market price of the land in question, because of the prevalent tendency that in order to save money on the purchase of stamp papers and to avoid the imposition of heavy Gain Tax levied on sale of property, people declare or show a much smaler amount the price of the land purchased by them than the price actually paid. The `previous sales' of the land cannot, therefore, be always taken to be an accurate measure for determining the price of the land intended to be acquired. The witnesses produced by the respondents have categorically stated that the acquired land is not less than Rs. 3,00,000/- per kanal and the witnesses have not been cross-examined on the point. The evidence led by the respondents has also not been rebutted. In such state of affairs, it cannot be said that the compensation has wrongly been enhanced by the learned Reference Judge as well as the learned High Court. The upshot of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs. ZC/4/SC(AJ&K) Appeal dismissed.