2012 YLR 2283 (PLP)

MUNIR AHMED CHAUDHARY, J.

This appeal has been directed against the judgment and decree of Reference Judge Mangla Dam Raising Project Mirpur dated 14-2-2007, through which reference filed by the real respondents was accepted and compensation of the awarded land was enhanced.

2. Brief facts of the case are that the Collector Land Acquisition Mangla Dam Raising Project Mirpur acquired the land measuring 957 Kanals and 08 Marlas situated at village Kalyal Bainsy owned by the real respondents. The Collector Land Acquisition assessed and determined the compensation of the said land as Rs.2,50,000 per kanal for Mera Doem and Rs.1,50,000 per kanal for Banjar Qadeem. Feeling aggrieved, the real respondents filed a reference before Collector Land Acquisition, which was referred to Reference Judge Mangla Dam Raising Project Mirpur. After hearing the parties, the learned Reference Judge determined Rs.8,00,000 per kanal along with 15% as compulsory acquisition charges. The respondents were also declared entitled to 06% interest on enhanced amount from the date of taking possession of the land by the Collector.

3. Feeling dissatisfied by the judgment and decree of the learned Reference Judge Mangla Dam Raising Project Mirpur, the present appeal was preferred by WAPDA through Superintending Engineer and Chief Engineer before this court.

4. Arguments were advanced by the learned counsel for the parties. Haji Muhammad Afzal Advocate, the learned counsel for the appellants argued that the Collector Land Acquisition assessed proper and adequate compensation of the acquired land. The learned Reference Judge has not recorded his findings in accordance with the evidence on record. There is no justification to enhance the compensation as Rs.8,00,000 per kanal. The requirements of sections 23 and 24 of the Land Acquisition Act have not been fulfilled. Notices were issued to the real respondents by the Collector during the process of acquisition but no claim was made before the Collector by the owners of the acquired land. The learned counsel for the appellants requested to accept the instant appeal and to set aside the judgment and decree passed by the Reference Judge and referred the following precedents in support of his arguments. PLD 1988 Lah. 57-65, PLD 1989 SC 31, 1991 SCMR 2436, 1992 SCMR 1310, 1993 CLC 5009, PLD 1997 Lah. 46, 1997 SCR 351, 2001 MLD 204 and 2007 SCR 468.

4. While controverting the learned counsel for the appellants, Raja Hassan Akhtar Advocate, the learned counsel for the respondents contended that the learned Reference Judge has recorded his findings having, in view the location and market value of the acquired land. The land is situated at Mirpur-Kotli main road and has a commercial potential value. The evidence on record is fully in support of the version taken. by the respondents. The appellants did not produce any reliable evidence on record before the learned Reference Judge during trial of the reference. The learned counsel requested to dismiss the instant appeal and to maintain the judgment and decree of the Reference Judge Mangla Dam Raising Project Mirpur.

5. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record and the precedents referred carefully and minutely. In the present matter, the only and important point to be resolved is the compensation, which was firstly assessed by the Collector Land Acquisition and then it was determined by the learned Reference Judge Mangla Dam Raising Project after hearing both the parties. It has to be resolved that whether the compensation of the awarded land was or was not properly ascertained and determined "by the concerned forums. The acquired land was awarded under No. 07 of 2006 dated 9-5-2006 by the Collector. The Collector mentioned the following sale-deeds, which were registered before Sub-Registrar Mirpur regarding village Kalyal Bainsy:-‑ (4) (3) (2) (1) ﺘﻌﺪﺍﺩ ﺮﻘﺒﻪ ﻤﺒﻌﻪ ﮎ-ﻡ ﺘﺎﺮﻴﺦﺘﺼﺪﻴﻖ ﻨﺎﻢ ﻤﻮﻀﻊ ﻨﻤﺑﺮ ﺸﻤﺎﺮ 19-1 14-7-2004 1 1 6-0 4-3 10-3 20-11-2004 ﻛﻠﻳﺎﻞﺑﻳﻨﺴﻰ 2 14-0 11-3-2005 3 2-1 12-3-2005 4 10-0 18-3-2005 5 19-0 18-4-2005 6 12-0 18-4-2005 7 0-1 2-5-2005 8 2-1 24-5-2005 9 (7) (6) (5) ﺍﻮﺴﻄ ﻔﻰﻜﻨﺎﻞ ﻘﻴﻤﺖ ﺍﺮﺍﻀﻰ ﻤﺑﻳﻌﻪ ﻘﺴﻢ ﺮﻘﺑﻪ 8,66,176 12,67,500 ﺑﻨﺠﺮﻘﺪﻳﻢ 5,10,000 4,00,000 14,00,000 ﻤﻴﺮﺍ ﺪﻮ ﺌﻢ ﻤﻳﺮﺍ ﺍﻮﻝ 5,10,000 4,00,000 ﻤﻴﺮﺍﺪﻮ ﺌﻢ 8,66,176 > 1,50,000 ﺑﻨﺠﺮﻘﺪﻳﻢ 8,66,176 2,00,000 ﺑﻨﺠﺮﻘﺪﻳﻢ 8,66,176 17,50,000 ﺑﻨﺠﺮﻘﺪﻳﻢ 8,66,176 10,50,000 ﺑﻨﺠﺮﻘﺪﻳﻢ S,10,000 5,00,000 ﻤﻴﺮﺍ ﺪﻮ ﺌﻢ 4,54,545 5,00,000, ﮨﻳﻝ The Collector Land Acquisition did not assess the compensation of the acquired land considering the above-mentioned sale-deeds but he considered the relevant village Kalyal Bainsy with other two villages Islamgarh and Har-Do-Sehotha altogether and assessed the compensation having in view the value of all the three villages as under: (3) (2) (1) ﺘﻌﺪﺍﺩﺮﻘﺒﻪﻤﺒﻴﻨﻪ ﮎ-ﻡ ﻘﺴﻢﺍﺮﺍﻀﻰ ﻨﻤﺑﺮ ﺸﻤﺎﺮ 5-2 ﻤﻴﺮﺍﺪﻮ ﺌﻢ 1 1 955 ﺑﻨﺟﺮﮨﺮﻗﺴﻢ / ﺸﺎﻤﻠﺎﺖ ﺪﻴﮨﻪ 2 ﻤﻴﻨ ﺍﻦ (5) (4) ﻜﻝﻘﻴﻤﺖ ﻘﻴﻤﺖﻔﻰﮐﻨﺎﻝ 5,62,500 2,50,000 11,46,06,000 1,20,000 11,51,68,500 The respondents/applicants/owners of the acquired land produced one witness Muhammad Azam Khan before the Reference Judge and placed three attested copies of sale-deeds as under:‑ (i) Muhammad Sabir v. Karamat Hussain registered on 27-5-2004 regarding land measuring 07 Marlas situated at village Kalyal Bainsy sold against a price of Rs.2,80,000 exhibited as exhibit "PB". . (ii) Muhammad Ramzan v. Muhammad Ameen registered on 9-3-2006 regarding land measuring 07 Kanals and 11 Marlas situated at village Kalyal Bainsy sold against a price of Rs.50,00,000 exhibited as exhibit "PC". (iii) Ghazanfar Ali v. Karamat Hussain registered on 19-5-2004 regarding land measuring 01 Kanal and 08 Marlas sold against a price of Rs.9,10,000 exhibited as exhibit "PT The present appellants (respondents before the Reference Judge) did not produce any witness or any documents before the Reference Judge. The learned Reference Judge declared that the awarded land was of potential/commercial value and situated at Mirpur-Kotli main road and within the municipal limits of Islamgarh municipality. It is a settled principle of law that if the compensation demanded by the owners is proved by the market as well as potential value of the awarded land, then it is just and proper to determine the same as compensation. Any gap between the compensation ascertained by the Collector and compensation demanded by the owners has got no value in the eye of law.

6. The record reveals that the compensation assessed by the Collector was not proper having in view the market and potential value of the land acquired. The Collector Land Acquisition mentioned in the award the sale-deeds of the relevant village Kalyal Bainsy but did not consider the market value of the land acquired in accordance with the said sale-deeds.

7. It is also a settled principle by the superior courts that while ascertaining the value of the acquired land, the probable use to which the owner might have paid the land must be taken into consideration. This includes all the advantages which the land possesses, present or future in the hands of the owner and he is entitled to have the price assessed in Reference to these advantages. This principle has been laid down in a 'precedent PLD 2004 SC

512. The apex Court of Azad Jammu and Kashmir has observed in another case reported as 1996 SCR 132 as under:-‑ "It may be pointed out that while assessing the market value, the land is not to be valued merely by the reference to the Use for which it was being made at the relevant time but also the use to which it can reasonably be put in future." The acquired land under discussion is located on the main road and has got a considerable potential value. The compensation determined by the learned Reference Judge is based on market and potential value of the awarded land. The Reference Judge has recorded his findings based on sound and cogent reasons. The witness produced on behalf of the respondents/owners fully supported - the version which was accepted by the Reference Judge. The documentary evidence also supports the version of the E owners. The version taken by the owners is un-rebutted. The present appellants did not mention any irregularity or illegality in the proceedings conducted before the Reference Court. The evidence produced by the owners on the point of price of the acquired land is deemed to be admitted as correct. This principle has been laid down in a case titled Azad Govt., v. Abdul Razzaq and others by the apex Court of Azad Jammu and Kashmir in a Civil Appeal No.' 140 of 2004 dated 26-11-2008.

8. The assessment made by the Collector is self-contradictory because he did not assess the same in accordance with the sale price of the sale-deeds mentioned in the Award. The average price in accordance with the sale-deeds mentioned in the Award by the Collector reflects Rs.7,32,610 per Kanal. The learned Reference Judge having in view this average price and. potential value of the awarded land, determined the compensation of the said land as Rs.8,00,000 per 'Kanal along with 15% compulsory acquisition charges and 6% interest on enhanced amount, which is just, proper and in accordance with the provisions of the Land Acquisition Act. Unfortunately, the present appeal has been preferred against the judgment of the Reference Court where the appellants did not produce a single witness or documents as evidence during trial. The appellants could not prove the version they have taken in the memorandum of appeal. The precedents referred by the learned counsel for the appellants have no conformity with the facts of the present case. So, the instant appeal fails, which is hereby dismissed with no order as to costs. HBT/33/H.C. (AJ&K) Appeal dismissed. ***