2000 PLP 2016 (YLR)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the judgment of the High Court, dated 18‑4‑1998., whereby, the findings of the Additional District Judge with regard to the compensation amount paid to the respondent No. l was maintained and the appeal filed by the appellants, herein, was dismissed.

2. The brief facts of the case are that the Government acquired land for the construction of road from Muzaffarabad Town to Muzaffarabad Airport which was to pass through different villages. The Collector Land Acquisition fixed the compensation amount on the basis of the kinds of various pieces of land acquired which varied from Rs. 30,000 per Kanal to Rs. 50,000 per Kanal plus 15% 'Jabrana'. Feeling dissatisfied with the compensation amount fixed, the land owners initiated separate references to the District Judge who entrusted the same to the Additional District Judge for hearing. The Additional District Judge, after hearing the parties, increased the compensation amount by 30% in all cases through a consolidated judgment. Some of other landowners, except the respondent herein; preferred separate appeals to the High Court; the Government and others also filed cross‑appeals against the judgment of the Additional District Judge. The High Court enhanced the compensation amount to Rs. 60,000 per Kanal plus 15 % 'Jabrana' through consolidated judgment in favour of all the landowners including the respondent. The appeal filed by the Government arid others, the appellant herein, was dismissed despite the fact that no evidence was adduced by the respondent, herein, before the Additional District Judge.

3. A preliminary objection was raised by the respondent that instead of filing petition for leave to appeal, a direct appeal under section 54 of the Land Acquisition Act should have been filed. Kh. Attaullah, Additional Advocate‑General, the learned counsel for the appellants, has conceded that a direct appeal under section 54 of the Land Acquisition Act instead of filing the petition for leave to appeal was an appropriate remedy. However, he has submitted that the petition for leave to appeal may be treated as an appeal and disposed of as such. He has further submitted that as there is no limitation prescribed under the Supreme Court Rules for such an appeal, there is no hindrance to allow his prayer. The learned counsel has further argued that the High Court has dismissed the appeal filed by the appellants, herein, against the judgment of the Additional District Judge without considering the facts of the case; because the Additional District Judge increased the compensation amount awarded by the Collector by 30% without any evidence in support of his findings. He has further submitted that as the land was acquired for the purpose of construction of airport road which had to pass through different villages and land was of different kinds, the omnibus increase by 30% to favour of all the landowners was not permissible under law. He has contended that the Collector fixed the compensation amount taking into consideration, inter alia, the nature of the lands but the. Additional District Judge and the High Court have ordered of general increase by 30% and Rs.60,000 per Kanal respectively in all the cases; the increase was allowed by the High Corn despite the fact that no appeal was filed by th respondent in the High Court.

4. Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for the respondent has argued that the petition for leave to appeal could not be treated as appeal, especially so when the prayer is made orally at a belated stage. He has argued that the ignorance of law is no excuse and, therefore, the appeal should be dismissed as being incompetent. So far as the question with regard to the enhancement of compensation amount by the Additional District Judge and the High Court is concerned, the learned counsel has argued that as the land was acquired for the purpose of construction of road, the compensation amount has been rightly awarded at the uniform rates in all the cases. Thus, he has maintained that the Additional District Judge and the High Court did not commit any error in dismissing the appeal filed by the appellants, herein, and allowing the compensation at the identical rates. So far as the question that the respondent has been allowed compensation to the tune of Rs. 60,000 per Kanal without any appeal by him to the High Court or the question that the respondent did not lead evidence before the Additional District Judge is concerned, the learned counsel for the respondent could not give any satisfactory answer.

5. We have considered the arguments advanced at Bar. The first question which needs resolution is as to whether the petition for leave to appeal in the instant case could be treated as an appeal under section 54 of the Land Acquisition Act despite the fact that instead of appeal, the petition for leave to appeal was filed in this Court. It may be stated that in view of the fact that there has been a common practice to file petitions for leave to appeal instead of direct appeals under section 54 of the Land Acquisition Act and the fact that this Court has also been allowing such petitions for leave to appeal, it is desirable that the petition for leave to appeal is treated as an appeal under section 54 of the Land Acquisition Act, especially so when there is no limitation prescribed for such an appeal either in the Supreme Court Rules or in the Land Acquisition Act. A reference may be made to a case reported as Water and Power Development Authority v. Sadullah Khan and others (1999 SCMR 319), wherein the petitions for leave to appeal were treated as appeals under section 54 of the Land Acquisition Act, despite the fact that the petitioners did not make any application in that regard but merely made an oral request during the course of arguments at a belated stage. The petitions for leave to appeal were converted into appeals despite the fact that the petitioners had been all along insisting that the petitions for leave to appeal, were competent, irrespective of the provisions contained in section 54 of the Land Acquisition Act. Hence, we treat this petition for leave to appeal as an appeal under section 54 of the Land Acquisition Act read with section 42(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974.

6. As noted above, the respondent did not file appeal before the High Court to challenge the judgment of the Additional District Judge who had enhanced the rate of Rs.30,000 per Kanal to the tune of 30%. The High Court did not take note of this fact and proceeded to enhance the compensation in respect of land acquired from respondent, Mukhtar Saeed Qadri, without there being an appeal. This is sufficient by itself for vacation of the judgment of the High Court.

7. The next question which needs resolution is as to whether the High Court was justified in dismissing the appeal filed by the appellants, herein. The perusal of the impugned judgment of the High Court reveals that it has not been considered by the High Court that no evidence was led by the respondent before the Additional District Judge. The. High Court, while dismissing the appeal filed by the appellants, herein, through a consolidated judgment, held that all the landowners were entitled to get compensation at the rate of Rs.60,000 per Kanal. The perusal of the record reveals that the reference in the case was initiated on 13‑5‑1993 and the case was entrusted to the Additional District Judge on 29‑5‑1993. The Additional District Judge framed the issues in the case in light of the objections filed by the appellants, herein, on. 14‑1‑1995. On 7‑2‑1995, Mukhtar Saeed Qadri was ordered to produce evidence. Thereafter, no order was passed with regard to the closing of evidence or otherwise; the interim orders show that the appeal filed before the District Judge was placed before the Court from time to time with other files and ultimately, the Additional District Judge increased the compensation amount by 30%. The procedure adopted by the Additional District Judge is not visualised in law; under section 53 of the Land Acquisition Act, the Civil Procedure Code is applicable. After framing the issues, respondent was asked to produce evidence but he did not do the needful on one occasion or two dates of hearing. However, his evidence was not closed. Finally, the learned Additional District Judge, vide his judgment, dated 2‑12‑1996, increased the compensation amount to 30% without giving any reasons in support of enhancement. Thereafter, the High Court, without adverting to the points raised by the appellants, herein, passed the judgment in favour of respondent, herein, and that too without any evidence on the record and without following the procedure under law. In the light of what has been stated above, we accept the appeal with costs and set aside the impugned judgments of the Additional District Judge and the High Court. We remand the case to the Additional District Judge with the direction that he shall proceed with hearing of the reference in question under law and decide the matter afresh according to law. H.B.T./72/SC(AJ&K) Case remanded.