P L D 2024 High Court (AJ&K) 20 (PLP)

CHAUDHARY KHALID RASHEED, J.

The captioned appeals have been preferred against the judgment and decree recorded by learned Additional District Judge/Reference Judge Muzaffarabad dated 17.01.2020, whereby reference filed by landowners was partly accepted, raise common questions of facts and law and can conveniently be resolved simultaneously hence, were heard together and ruled as such through this judgment. Facts giving rise to the captioned appeals are, vide award No.05/2017 dated 15.06.2017 land measuring 01 kanal 14 marlas situated in village Dhani Syedan Tehsil and District Muzaffarabad was acquired for extension of Srinagar Muzaffarabad to Chakothi Road and the compensation was fixed as Rs.250000/- per marla along with 15% CAC. Feeling aggrieved Syed Abid Ali Gillani, landowner filed a reference and claimed that market price of land is Rs.750000/-per marla. The other side filed objections. The learned Reference Judge Muzaffarabad framed issues in the light of pleadings of the parties, provided them opportunity to lead evidence, heard pro and contra and at conclusion of proceedings, partly accepted the reference and declared the owner entitled to receive Rs.450000/- per marla along with 15% CAC vide its impugned judgment and decree dated 17.01.2020, hence the captioned appeals. The learned legal Advisor of the Public Works Department raised sole objection that Public Works Department through its Secretary was a necessary party to be impleaded in the reference application but petitioner/respondent did not implead the Public Works Department through its Secretary in the line of respondents, hence the reference was liable to be dropped on this sole ground. On rebuttal, he half heartedly attacked the impugned judgment and decree on its merits. The learned counsel for the respondent/landowner held that Azad Government has been impleaded in the line of respondents in whose favour the land has been acquired. It is further stated that Collector who issued the impugned award has also been impleaded in line of respondents. On merits of case he contended with vehemence that landowner successfully proved that acquired land is of commercial nature, hence, he was entitled to get the compensation as prayed for. I have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution. The point which is required to be determined by this Court is whether the compensation fixed by Reference Court is justified and reasonable or not? Firstly I would like to attend preliminary objection raised by the learned legal advisor of the Public Works Department that necessary party has not been impleaded in line of respondents before reference Judge. Land Acquisition Act is a special law and provides complete mechanism for acquiring land, payment of compensation to aggrieved landowner and remedy to aggrieved interested person from determination of compensation, measurement of land or apportionment of the compensation. Section 18 of the Act furnishes a right of reference to any person interested who has not accepted the award. Subsection (2) of Section 18 of the Act postulates that the application shall state the grounds on which objections to the award has been taken. It has not been provided in the Land Acquisition Act that who is necessary party to be impleaded in line of respondents in reference application. It is the Collector who has to determine the compensation and to pay the same even the enhanced compensation amount awarded by the competent Court has to be paid by the Collector. The Collector is also responsible to arrange the enhanced compensation, thus, Collector who issues award is necessary party to be impleaded. Whenever land is acquired for a Govt. department the Azad Govt. is entered as owner of the land after award and only possession is required to be handed over to the concerned department on whose move land was acquired, thus, govt. through its Chief Secretary is also a necessary party to be impleaded in the line of respondents in reference application. The concerned department, or local authority or a company for which land is acquired may only lodge cross objections to the objections made by any person interested under section 22-A of the Act. On enhancement of compensation by competent Court the Collector is bound to pay the same to the landowners. No doubt, department in whose favour land is acquired has got an interest in the case, however, a perusal of record reveals that land was acquired by Collector on the motion of Chief Engineer Public Works Department Highways (North) Muzaffarabad as mentioned in the award and move was not on behalf of department, thus, in my considered view impleading Secretary Public Works Department Muzaffarabad and Chief Engineer Public Works Department Highways (North) Muzaffarabad is sufficient to secure the interest of the acquiring department. It is also relevant to mark that land has been acquired in favour of Govt. as mentioned in the explanations of award and only possession shall retain by Public Works Department Muzaffarabad on behalf of the government, thus, Department of Public Works through its Secretary was not necessary party rather at the most it can be declared as proper party and in its absence effective decree can be passed. Reliance may be placed on PLD 2008 Lahore

116. The Supreme Court of Azad Jammu and Kashmir has held in 2022 SCR 179 and 2022 SCR 1387 relied upon by the learned counsel for Public Works Department that in finance matters Finance Department is a necessary party and impleading Secretary Finance department is not sufficient and the authority who passed impugned order is also necessary party but controversy in hand is bit different because in the instant case the authority who issued award was impleaded in line of respondents and Azad Government in whose favour land was acquired was also arrayed as respondents and even Secretary Public Works Department and Chief Engineer Public Works Department on whose move land was acquired have also been impleaded in line of respondents thus, argument of learned counsel for appellant that Public Works Department through its secretary was necessary party is baseless, hence repelled. As far as the merits of the instant case are concerned, the land owner in order to prove his claim placed on record a sale-deed Exh.PA through which 05 kanals land situated in village Dhani Syedan has been sold for consideration of Rs.4500,0000/- on 14.10.2015 which comes to Rs.450000/- per marla and the Court below while relying upon said sale deed declared the landowner entitled to get Rs.450000/- per marla, however, witnesses produced by petitioner have categorically deposed that the acquired land is of commercial nature and this fact has also been admitted by the witnesses produced by respondents. As the land has been acquired for extension of Muzaffarabad to Srinagar Highway which IPSO Facto sufficient to hold that the land was of commercial nature and can be used for business purposes in future, as has been held in 2017 SCR

915. Relevant observations recorded at page 921 are as follows:-- "It is well settled that while determining the compensation it is the duty of the acquiring agency to look into the usage to which the acquired land can be put in future along with other factors." The Court below has not pondered the future use and potential worth of the acquired land. It is also relevant to mark that the sale deed Exh.PA has been executed on 14.10.2015 whereas the impugned award has been announced on 15.06.2017 after about two years of the said sale deed and it hardly requires any doubt to hold that the prices of land hike day by day, therefore, in my considered view the petitioner was entitled to get Rs.60,000/- per marla besides 15% CAC because the compen-sation is a wider term as compare to price, hence appellant is entitled to be compensated according to the price for which a land owner is willing to sell and the other to purchase. Reliance may be placed on 2017 SCR

915. Relevant observations recorded at page 912 are reproduced as under: "The word "market value" has been interpreted in a number of pronouncements of this Court that it means the value on which the owner is ready to sell the land to a willing buyer voluntarily." The sum and substance of the above discussion is, the Appeal No.81-A/2020 is hereby sacked as having no essence whereas the Appeal No.132/2020 of the landowner is hereby honoured by declaring that appellant is entitled to get Rs.6,00,000/- per marla along with 15% CAC. MQ/5/HC(AJ&K) Order accordingly.