2020 PLP 451 (YLR)

GHULAM MUSTAFA MUGHAL, J.

All the captioned appeals arise out of the consolidated judgment dated 15.1.2018 passed by the learned High Court in Civil Appeals Nos.73 and 74 of 2011. As all the appeals involve common question of facts and law, hence, were heard together and are decided as such.

3. The facts necessary for disposal of the captioned appeals are that the landed property of the appellants in Appeals Nos. 46 and 47 of 2018 was awarded for upraising of Mangla Dam vide award No. 154/2008 dated 7.1.2008. The appellants and private respondents, herein, feeling aggrieved from determination of the compensation, filed references before the learned Reference Judge Mangla Dam Raising Project on 11.6.2008. It was claimed by Muhammad Azam Khan and others in Reference No. 101/08 that due to acquisition proceedings, their land out of Khasra Nos.4, 9 and 10, measuring 14 kanal has been awarded. It was further claimed that as no sale-deed was executed in the village Ladhar, therefore, the compensation has been assessed by the Collector while considering the average price of the adjacent village Chaksawari, but the same has not been fixed according to prevalent rates and even by taking into account the average price of the sale-deeds pertaining to village Chaksawari. It was claimed that average price of village Chaksawari comes to Rs. 31,00,000/- per kanal, whereas the Collector has arbitrarily fixed the compensation of the acquired land as Rs.5,00,000/- per kanal. Muhammad Azam and others, appellants, herein, further claimed that from Khewat Nos. 4, 9 and 10, respondents Nos. 3 to 17 have been awarded the compensation of the land beyond their fractional shares and similarly the grand-father of the respondents Nos. 6 to 11 as well as Mst. Begum Jan and Diwan Begum, who were real sisters of the father of respondents Nos. 6 to 11, have alienated the land beyond their shares, hence, it was enjoined upon the Collector to assess the compensation while calculating the correct shares in the Khewat of the respondents. It was stated that the mistake was realized by the Collector and subsequently it was corrected in light of the application of Muhammad Azam, but later on the correction was deleted on the frivolous ground that the matter is pending before the Courts. Finally, it was claimed that the compensation of the land from Khewat Nos. 4, 9 and 10 to the tune of 8 kanal 2 marla and 8 Sarsai has been determined in favour of respondents Nos. 3 to 5, whereas, their actual shares were 6 kanal 11 marla and 3 Sarsai. In this perspective of the matter, the compensation of the land measuring 1 kanal 11 marla and 5 Sarsai has been received by the said respondents beyond their fractional shares. It was claimed that the compensation of the land may be enhanced and the same may be fixed as Rs.31,00000/- per kanal. This reference was contested by the respondents by filing written statement/objections.

4. Reference No. 102/08 was filed by Muzaffar Ali Zaffar and others on the same day against award No. 154/08 dated 7.1.2008 before the Collector. It was claimed in that reference that land comprising Khewat Nos. 5, 6, 9 and 10 situated in village Ladhar measuring 12 kanal 14 marla was awarded through award No. 154 dated 7.1.2008. It was stated that the compensation has been assessed while considering the sale-deeds of the adjacent village Chaksawari but he average price has not been made basis for determination of the compensation, hence, the determination of the compensation is arbitrary and has been made without taking into consideration the potential value of the acquired land. In para No. 6 of the reference, it was stated that the father of respondents Nos. 3 to 6 namely Muhammad Iqbal exchanged the land comprising Khewat No. 9 with Khasra No. 3915, re-numbered as 17, measuring 2 kanal 12 marla with Abdul Wahid son of Raj Muhammad. In exchange, number Khasra 3715 was given. Muhammad Iqbal also gifted the land measuring 4 kanal 7 marla in favour of respondent No.

3. It was claimed that this gift was beyond the fractional share and entitlement of Muhammad Iqbal to the tune of 2 kanal 12 marla. The parties, thereafter entered into a compromise decree in order to camouflage the fraudulent transaction. It was claimed that the exchange-deed as well as the gift-deeds are also illegal and mala fide for having been executed beyond the fractional share of respondents. In para No. 7, it was stated that respondents Nos. 7 to 11 also obtained gift-deed from Diwan Begum and Jan Begum beyond their share, hence, respondents Nos. 7 to 12 have also obtained the compensation of the land illegally. It was claimed that the land comprising Khasra No. 348 measuring 2 kanal 8 marla along with the house was also illegally included in the share, which was not ancestral property, hence, petitioner No. 5 was solely entitled to compensation of the land Khasra No.

348. In short, in this reference besides, claiming the enhancement of the compensation of the acquired land, the question of the apportionment and cancellation of gift-deeds as well as sale-deeds was also raised. This Reference was contested by the respondents by filing written statement. The learned Reference Judge, Mangla Dam consolidated both the references, framed issues in light of the respective pleadings of the parties and directed them to lead evidence pro and contra. On the conclusion of the proceedings vide judgment dated 19.4.2011, the learned Reference Judge enhanced the compensation according to the classification of the land to the tune of Rs.5,50,000/-, Rs. 4,90,000/-, Rs. 4,30,000/-, Rs. 1,10,000/-, Rs. 1,70,000/- and Rs. 6,60,000/- per kanal for its kind Hael, Maira Awal, Maira Doim, Deger Ghair Mumkin, Banger and Ghair Mumkin Abadi respectively along with 15% compulsory acquisition charges. The rest of the claim of the petitioners regarding alienation of the land beyond the shares and illegal disbursement of the compensation was rejected. Feeling aggrieved from the judgment passed by the learned Reference Judge dated 19.11.2011, both the parties filed separate appeals before the Azad Jammu and Kashmir High Court on 16.5.2011. The learned High Court through the impugned consolidated judgment dated 15.1.2018 has enhanced the compensation of the acquired land to the tune of Rs.20,95,238/- per kanal for its kind Maira Awal, Rs.42,38,823/- per kanal for its kind Banjar Qadim and Rs.11,02,040/- per kanal for its kind Ghair Mumkin besides 15% compulsory acquisition charges. The impugned judgment of the High Court is silent about the legality and correctness of the gift-deeds, decree and apportionment of the compensation as was claimed by the both the parties before the Reference Judge. WAPDA and others, have filed Appeals Nos. 57 and 58 of 2018 for setting aside the impugned judgment and decree of the High Court on the ground that the Collector Land Acquisition has rightly assessed the compensation of the land according to its market value but the learned Judge in the Court has misread the evidence, hence, the impugned judgment may be vacated.

5. Mr. Muzaffar Ali Zaffar, the learned Advocate appearing for the appellants, argued that the Reference Judge as well as the learned High Court has failed to consider the claim of the appellants, herein, with regard to excessive transfer/alienation of the land through gift-deeds and decree and wrong payment of the compensation to the private respondents despite the fact that it was admitted in the pleadings and subsequently before the High Court that land had been transferred beyond the actual entitlement of the respondents. The learned Advocate further argued that the Collector Land Acquisition while realizing the mistake has also corrected the entries through mutation but subsequently the same was cancelled on the ground that the matter has already been referred to the Reference Judge for determination of the shares of the parties, therefore, no further step is required to be taken by the Collector. The learned Advocate argued with vehemence that the question of limitation has also not been properly attended by the learned Reference Judge as well as the learned High Court because the parties are co-sharer and in case of alienation without any lawful authority and entitlement, no limitation runs against another co-sharer. In support of his submission, the learned Advocate has placed reliance on the cases reported as PLD 1993 SC (AJ&K) 24, 2000 SCMR 1574, 2005 CLC 2492 and PLD 1990 SC

1. The learned Advocate argued that it was amply proved from the record as well as from the statement of the respondents made during the pendency of the appeal before the High Court that compensation has been received by them to the tune of 2 kanal 12 marla illegally. On the basis of the statement made before the High Court during the pendency of the appeal, the matter was deferred for decision at the time of final disposal of the appeal but the learned High Court has failed to consider the same while deciding the main appeal. The learned Advocate argued that the claim of the appellants to the extent of apportionment falls under section 30 of the Land Acquisition Act and there was no limitation for such a reference and the same is required to be filed within a reasonable time. He argued that as the reference was within limitation and there was no limitation, and illegality and correctness of the gift-deeds as well as decree including the entitlement of the parties could have been judged by the Reference Judge and subsequently by the learned High Court but both the Courts below have wrongly refused the relief on this point. The learned Advocate further argued that as the High Court has enhanced the compensation partly but has not given the same irrespective of the kind of the land as has been done in various other cases, therefore, the appellants have also challenged the judgment partly to this extent. The learned Advocate prayed that as the land in question has been acquired for the purpose of raising of Mangla Dam and the compensation has also not been determined in accordance with law, therefore, the appellants were entitled to the compensation of the acquired land regardless of its kind and classification as has been done by the learned Reference Judge as well as the learned High Court.

6. Sardar Muhammad Azam Khan, the learned Advocate appearing for the remaining appellants has adopted the arguments advanced on behalf of Mr. Muzaffar Ali Zaffar, the learned Advocate for the appellants and additionally placed reliance on the cases reported as 2013 SCR 52, 2013 YLR 969, 2009 CLC 741, 2016 SCR 1546(sic), PLD 2012 SC (AJ&K) 46, 1988 SCMR 1016 and 2014 SCR 382.

7. Mr. Muhammad Siddique Chaudhry the learned Advocate appearing for the respondents defended the impugned judgment and submitted that the References before the learned Reference Judge regarding the cancellation of the sale-deeds/gift-deeds and determination of share was clearly time barred and out of the scope and jurisdiction of the Reference Judge. The learned Advocate further argued that proper relief has been granted to the appellants and the private respondents by the High Court, therefore, the appeals have no merits and the same may be dismissed. The learned Advocate argued that the compensation has not been received by the respondents due to litigation and stay order issued by the Courts below. The respondents have been deprived of their entitlement, which is clear cut negation of their fundamental right of holding the property. The learned Advocate when confronted regarding the lacunas in the judgment of the High Court as important points taken in the references and admitted from the other side and even the rectification made by the Collector, he frankly conceded that these points have not been considered, but he made a suggestion that the respondents may be allowed to receive the compensation of the undisputed portion of the acquired land which falls within their shares and only the compensation of the land which allegedly has been executed beyond the shares through gift-deeds/decree etc. may be withheld. The learned Advocate further argued that as the matter is pending before the Courts since 2008, therefore, a direction may be issued for early disposal of the appeals.

8. Mr. Javed Najam-us-Saqib, the learned Advocate appearing for the respondents argued that the learned High Court has enhanced the compensation on the basis of surmises and conjectures, which is not at all justified. He argued that the Collector Land Acquisition has determined the compensation according to the potential value of the acquired land.

9. After hearing the learned Advocates for the parties in support of their respective stand and perusing the record, we are of the view that the points argued by Mr. Muzaffar Ali Zaffar and Sardar Muhammad Azam Khan, the learned Advocates for the appellants in both the appeals are of vital importance. Unfortunately, there is no wisdom of the Reference Judge on these points and the learned High Court although these points are claimed to have been admitted by the respondents before the Reference Judge in the written statement and through an application before the Azad Jammu and Kashmir High Court during the pendency of the appeals. We believe that the points reflected hereinabove escaped the notice of the learned High Court while handing down the impugned judgment. By now, law is well settled that a judicial order must be speaking one and must show that the Judge or a Tribunal has applied its mind to all the points involved in the case and after attending the arguments pro and contra has decided the case before him. In case reported as Hyderabad Development Authority through M.D. Civic Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 Supreme Court 84), the apex Court of Pakistan considered an identical proposition and observed that a judgment should be based on evidence/ material available on the record and the reasons in support of the judgment. At page 87 of the report, the learned apex Court observed as under:-- "

5. We have painfully noticed lacuna pointed out in the judgment by the learned counsel for the appellant, however, we believe that such omission has occurred inadvertently because perusal of the judgment reveals that besides noting arguments advanced by both the sides, the evidence has also been reproduced precisely, as such there was no impediment for the learned Judge in discussing the evidence to formulate reasons for the purpose of drawing conclusion on basis of which appeals were allowed. It would be advantageous to note that judicial pronouncement (judgment) by a Judicial Officer should be based on the evidence/material available on record and reasons must be outcome of the evidence available on record and on the basis of such reasons conclusion should be drawn and of the order lacks of these ingredients it cannot be termed to be a judicial verdict (judgment) in stricto sensu and at the best such pronouncement can be termed to be an administrative order incapable to settle controversy judicially between the parties. Confronted with such situation we were inclined to remand the case be setting aside judgment to the High Court but keeping in view protracted delay which was already been taken place in the matter because parties are in litigation from 24th September, 1981, therefore, with consent of the parties' counsel we decided to dispose of the appeals on merits to save parties from another round of litigation and also to do substantial justice between them." Similar view was taken by this Court in the case reported as Syed Aulad Ali Shah Gilani v. Azad Jammu and Kashmir Government through Chief Secretary and another (PLD 1987 SC (AJ&K) 1). The relevant observation has been recorded in paragraph 10 of the report as under:-- "

10. It is fundamental principle of law that order of a Court should conform with the provisions of law, i.e. should contain concise statements of the case, the points for determination which have been raised or arise in the case, the decision thereon and the reasons for such decision. Where a judgment does not show that the learned Court has applied its mind to all the points raised, the impugned judgment cannot, therefore, sustain and remand is the demand of law." As stated above that the arguments raised on behalf of Mr. Muzaffar Ali Zaffar, the learned Advocate appearing for the appellants have not been taken into consideration even by the Reference Judge or the High Court and even the compromise made before the High Court during the pendency of appeal has been ignored, therefore, we cannot decide the case ourselves without first having the wisdom of the High Court. However, we are of the opinion that the suggestion made by Mr. Muhammad Siddique Chaudhry, the learned Advocate appearing for the respondents, advances the cause of justice, therefore, we would like to direct that the Collector shall pay the compensation of the land acquired vide award No. 154/08 to the parties, who have not received the compensation to the extent of the land which falls within their respective shares while excluding the disputed land in shape of gift-deeds and decree etc. So far as the cross appeals filed by WAPDA is concerned, those would be deemed to have been decided in light of the proposed judgment. The upshot of the above discussion is that the appeals are accepted, the judgment passed by the learned High Court is set aside and the case is remanded with the direction to the learned High Court to decide the case afresh after providing the parties an opportunity of hearing and by taking into account all the questions raised hereinabove. Moreover, we will also direct, in the interest of justice, that the parties have already consumed a lot of time in prosecuting their case, therefore, the learned High Court shall decide the appeals within a period of three months from the date of receipt of this judgment. ZC/32/SC(AJ&K) Case remanded