' MUHAMMAD AZAM KHAN, J.--- This appeal by leave of the Court, is addressed against the judgment and decree of the Azad Jammu and Kashmir High Court, dated 30-5-2008, whereby Civil Appeals Nos.11 of 2007 and 28 of 2007 have been dismissed.
2. The Collector Land Acquisition, Muzaffarabad announced Award No,77 of 1989 on 23-9-1989, whereby the land measuring 20 Kanals, 16 Marlas comprising Survey No,254 situate in village Pothi Makwalan Rawalakot was awarded along with other land, The Collector Land Acquisition fixed the compensation amount of Rs,52,134 per Kanal plus 15% compulsory acquisition charges. The respondents, dissatisfied from the compensation fixed, filed an application for referring the matter to the District Judge, before the Collector on 27-11-1989, averred, therein, that the land is situated in Rawalakot, the Collector Land Acquisition, Muzaffarabad announced the award without hearing them. As they gained the knowledge about the award on 22-11-1989, immediately they obtained the copy of it and filed the reference. They claimed that the land acquired is a commercial one and the land in its vicinity is being sold at a price of 10/15 thousand Rupees per Marla. They prayed that an amount of Rs,2,00,000 per Kanal may be paid as compensation to them. The Collector referred the matter for determination to the District Judge, Rawalakot. The record of reference was burnt in an accident of fire which occurred in the District Courts, Rawalakot. The record of the case was reconstructed on the order of the Court. Muhammad Rafique Khan, one of the petitioners, therein, on 30-5-2005 filed an affidavit in the Court stating, therein, that along with the reference an application for condonation of delay along with affidavit was filed which was burnt with other record. Another application for amendment of the reference was filed by the petitioners on 26-1- 2004 claiming, therein, that inadvertently they have written the market price of land as 15/20 thousand Rupees per Marla, while actually they wanted to write 30/35 thousand Rupees per Marla equal to Rs,6,00,000 per Kanal and they prayed for payment of compensation of Rs,6,00,000 per Kanal. This amendment application was allowed by the Reference Judge. The trial Court after proceedings accepted the application and awarded the compensation amounting to Rs,6,00,000 per Kanal plus compulsory acquisition charges.
3. Feeling dissatisfied by the judgment and decree of the Reference Judge, two counter-appeals were filed, one by the Azad Government and others, while the other by the respondents in the High Court. The learned Chief Justice of the High Court dismissed both the appeals through a single judgment on 30-5-2008. This judgment and decree of the High Court is the subject of present appeal, which is filed only by the Azad Government and others, appellants, herein, while the respondents have filed no appeal.
4. Before hearing the arguments in the case, an application was moved by the respondents through their counsel on 29-10-2008 to the effect that Zahir Mehmood, one of the respondents has died and rest of the respondents are his sole legal heirs. No relief is claimed against him and a prayer is made for deleting his name from the line of the respondents. Since no objections have been filed from both sides, the name of Zahir Mehmood, respondent, is deleted from the line of the respondents.
5. Raja Gul Majeed Khan, the learned Advocate-General, arguing on behalf of the appellants, has contended that the High Court has dismissed the appeal of the appellants on two grounds, firstly on the ground that copy of the decree-sheet of the Reference Judge has not been filed with the appeal and secondly on merits. While relying upon section 54 of the Land Acquisition Act he argued that the appeal from the judgment of the Reference Judge lies in the High Court against the award, no appeal is provided from the decree, as such, it was competently filed. Alternatively, he argued that the decree-sheet was not prepared and it was requested in the High Court that the condition of filing the decree-sheet with the appeal may kindly be dispensed with. He claimed that the reference was time-barred, the Reference Judge as well as the High Court have wrongly held that the reference is within time. While arguing on merits he claimed that the petitioners, therein, themselves while filing reference application before the Collector demanded amount of compensation equal to Rs,2,00,000 per Kanal, now, they are estopped from demanding the excess amount of compensation in Court proceedings. He relied upon a case reported as Muhammad Sharif and 7 others v. Azad Government and another 1998 CLC 2052 and prayed for the acceptance of appeal.
6. While controverting the arguments, the learned counsel for the respondents, Sardar Muhammad Sayab Khalid, Advocate, has argued that the amount of compensation as Rs,2,00,000 was inadvertently written in the reference application, actually it was Rs,6,00,000 per Kanal. An application for amendment to this effect was filed which was allowed with costs. This order was not challenged and has become final. Amended reference was filed in the Reference Court. The Reference Court was duty bound to decide the matter in the light of amended reference, and it has correctly increased the compensation amount from Rs,52,134 to Rs,6,00,000 per Kanal. He further argued that the appellants have got filed the copy of the decree-sheet with the appeal in the High Court. Under Order XLI, rule 1 of the Code of Civil Procedure a copy of decree appealed from shall be filed with the memorandum of appeal, which was not filed, the High Court has rightly dismissed the appeal on this ground.
7. We have heard the learned counsel for the parties and gone through the record. First of all we will take the question of maintainability of appeal in the High Court. The High Court has dismissed both the appeals on the grounds that the decree-sheet of the Reference Judge has not been filed with the memorandum of appeal, therefore, the appeals are not competent. The appeals against the judgment of the Reference Judge are filed under section 54 of the Land Acquisition Act. It would be useful to reproduce section 54 which is as under:--- "[54. Appeals in proceedings before Court.--- Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to Majesty in Council subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and in Order XLV therein.]"
' A perusal of the section clearly reveals that the appeal to the High Court under the Act is filed from the award or from any part of it. Award although is not defined in the Act, the form of award is provided in section 26 of the Act, under this section every such award shall be deemed to be a decree, and the statements of ground of every such award shall be the judgment within the meaning of section 2 clause (2) and section 2 clause (9) of the Code of Civil Procedure. Under section 26 of the Land Acquisition Act the award is to be treated as decree, as such, it was not necessary to file the copy of a decree-sheet along with the memorandum of appeal in the High Court. The Judgment of the High Court on this ground is not maintainable.
8. Our above view is fortified by the judgment of this Court delivered in a reported case titled as Military Estate Officer, Hazara Circle, Government of Pakistan, Abbottahad and others v.
Muhammad Bashir and 6 other PLD 200 SC (AJ&K) 34 wherein it was observed as under:--- "It is evident from the provisions contained in subsection (2) of section 26 of the Land Acquisition Act and the cases referred to above that an award would be deemed to be a decree; the copy of the same duly accompanied the appeals in the present case. Therefore, irrespective of the fact that a formal decree-sheet was drawn by the District Judge, the filing of the copy with the memorandums of appeals was not necessary. Thus, there was no violation of Order XLI, rule 1, C.P.C.
And the order of the High Court in dismissing the appeals as being incompetent due to the non- filing of the decree-sheet is not sustainable."
9. The same view finds support from the judgment of the Supreme Court of Pakistan in a case reported as Government of Sindh v. Meho Khan and 14 others 1998 CLC 1068(sic) wherein, it has been held as under:--- ' No doubt the term "award" is not defined in the Act, but if the sections in which the word "award" occurs are referred to, it is noticeable that in all cases the word "award" is used with reference to compensation in same form or other whether it be the amount of compensation or disposal of compensation. The first formal order to which term "award" is applied in this Act is that of the Collector under section 11, while sections 26 and 27 of the Act provide for the form of award to be made by the Judge. Hence the award passed by the Collector under section 11 of the Act and judgment passed by the Court on a reference by the Collector under section 18 on that award are both to be termed as award, therefore, are also a decree by virtue of deeming provisions in subsection (2) of section 26 of the Land Acquisition Act
10. Now, comes the question of limitation, the Collector, Land Acquisition Muzaffarabad announced the award in respect of disputed land situated in Pothi Makwalan Rawalakot on 21-9-1989. The respondents who are owners of the land are also residents of Rawalakot. No notice under section 12 of the Land Acquisition Act is shown to have been issued to the petitioners, therein. The petitioners specifically averred in the reference application that they acquired the knowledge of the award on 22-11-1989 and the reference application was filed on 27-11-1989 just five days after, when they came in knowledge of the award. The original record of the Reference Court was burnt in fire incident, however, a copy of the reference is on record on the basis of which the record was reconstructed in compliance of the District Court's order, above fact is clearly proved from the copy of the, reference application. The petitioners specifically alleged in the reference application that they acquired the knowledge of the award on 22-11-2989. An affidavit was filed before the Referee Judge to the effect that they have filed the application for condonation of delay along with the reference application and they also filed an affidavit in support of that application. This affidavit has not been controverted by the appellants or their counsel, therein. Section 12 of the Land Acquisition Act provides that if a person is not present at the time of announcing the award a notice shall be issued to him. If no notice is issued to affected person then, how the limitation shall start from the date of award, the time shall start running against him from the date of knowledge.
11. The matter relating to limitation, where notice under section 12 of the Land Acquisition Act has not been served upon or the party was not before the Collector at the time of announcing the award, came before this Court in a reported case titled as Muhammad Jan and 4 others v. Azad Government and 7 others 1996 CLC 1967 wherein it was held in the following manner:--- "It was a legal requirement to serve a notice on the appellants under section 12 of the Land Acquisition Act. It is now well-settled that no adverse action can be taken against a person by keeping him in dark and in such situation in which a person is kept in dark about the proceedings or order limitation has to run from the date of knowledge. It has been held by the Supreme Court of Pakistan in Allandino v. Fakir Muhammad PLD 1969 SC 5821 that in a case where a litigant is kept in dark about the fate of his case it is wrong to say that for a remedial action against it, as provided by law, time would start to run against him from the date of the order and not from the date when he come to know about it."
' The argument has no substance. The reference was filed within time.
12. Feeling dissatisfied from the amount of compensation awarded by the Collector Land Acquisition i,e, Rs,52,134 per Kanal plus 15% compulsory acquisition charges, the petitioners filed the reference application challenging the compensation amount before the Collector for referring the matter to the District Judge. It was specifically claimed by the petitioners, therein, that the Collector has himself written in the award that the land which is being acquired is situated in the commercial area and, the land, in the vicinity is being sold at a price of 10/15 thousand Rupees per Marla, while he has determined the compensation amounting to Rs,2,500 per Marla. It was further claimed that presently the lands in commercial area of Rawalakot are being sold at a price of 2/3 lac Rupees per Kanal and on the basis of these assertions the petitioners demanded compensation amounting to Rs,2,00,000 per Kanal. During the pendency of reference in the year 2004 after lapse of approximately 15 years application for amendment of the reference was made which was allowed. The petitioners claimed compensation amounting to Rs,6,00,000 per Kanal instead of Rs,2,00,000 per Kanal. The petitioners also adduced the evidence to this effect and proved the case. The Reference Judge on the basis of evidence accepted the application and while amending the award fixed the compensation to Rs,6,00,000 per Kanal. The petitioners have proved from the evidence the market value of the land as Rs,6,00,000 per Kanal, but the question emerges whether the petitioners were entitled for compensation which they originally claimed in the reference application i,e, Rs,2,00,000 per Kanal or they are entitled for compensation money of Rs,6,00,000 per Kanal which they claimed after fifteen years of award through an amended reference, a perusal of record reveals that the petitioner apart from oral evidence relied upon the sale-deeds Exhs.P.A., P.B. And P.C. For proving their case. The sale-deed Exh.P.A. Was registered on 18-6-2002 after a period of thirteen years from the award and the sale-deed Exh.P.B. Was registered on 31-5-2000 about eleven years of the award, while the sale-deed Exh.P.C. Was registered on 22-2-2002 after the time of thirteen years from the award. All the three documents were not in existence at the time of announcing the award, so these cannot be considered for the purpose of ascertaining the market value of the land in question. For determining the compensation amount section 23 of the Land Acquisition Act is relevant, it will be useful to reproduce here, which is as under:--- "23. Matters to be considered in determining compensation.--- (1) In determining the amount of compensation to be awarded for land acquired under this Act the Court shall take into consideration: --- ' First, the market-value of the land at the date of the publication of the [notification under section 4, subsection(1)]; Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops of trees which may be on the land at the time of the Collector's taking possession thereof; ' Thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; ' Fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, moveable or immovable, in any other manner, or his earnings; ' Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change, and ' Sixthly, the damages (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
(2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value in consideration of the compulsory nature of the acquisition."
' The first condition for determining the market value of the land is that it shall be determined at the time of notification under section 4 of the Act, therefore, the sale-deeds relied upon by the petitioners cannot be considered by the Court which were executed after the completion of award.
12. The Supreme Court of Pakistan in a case reported as Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCM R 2164, observed as under:---
(i) ..
(ii) .
(iii) That the market value of the land is normally to be taken as existing on the date of publication of the notification under section 4(1) of the Act but for determining the same, the prices on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years may be considered including other factors like potential value etc."
14. The proposition came before this Court in the case titled Muhammad Sharif and 7 others v. Azad Government and another 1998 CLC 2052, the facts of this case are identical with the case in hand.
The petitioners in that case demanded the amount of Rs,22,000 per Kanal as compensation, later on during the proceedings in reference they filed an application for amendment to the effect that they be allowed to demand compensation amounting to Rs,1,22,000 per Kanal. It was held at page 2057 of the report as under:- "(9) While going through the record we have found that in the application filed by Muhammad Sharif and others, the landowners, before the Collector of Land Acquisition for filing a reference before the District Judge it was stated in para.2 that they had demanded compensation at the rate of twenty-two thousand Rupees per Kanal and had also adduced proof in support of their above mentioned claim but the Collector wrongly fixed two thousand Rupees per Kanal as the rate of compensation. In the prayer clause it was specifically requested that compensation may be paid at the rate of twenty-two thousand Rupees. However, during proceedings before the Court an application for amendment was moved stating that it had inadvertently been stated that compensation may be fixed at twenty-two thousand rupees per Kanal and that permission may be granted to substitute rupees one lac twenty-two thousand instead of rupees twenty thousand.
This application was rejected by the learned District Judge on 27th of December, 1988. Although it was stated in para.3 of the application filed before the Collector Land Acquisition that in the same vicinity lands situated on the road side were being sold at rupees six thousand per Marla but it was not stated that the acquired land was also on the road side. Of vital importance is the fact that the demand made in the prayer clause was that compensation be paid at the rate of twenty-two thousand rupees per Kanal. In light of this fact the demand subsequently raised by the appellants that the compensation may be fixed at rupees one lac twenty thousand per Kanal were clearly not permissible under law. The District Judge had already fixed the amount of compensation at twenty thousand rupees per Kanal to which fifteen per cent compulsory acquisition charges have to be added. This amount is approximately the same as has been demanded by the landowners."
15. It is sorry state of affairs that reference was filed in year 1989 while it was decided on 20-11-2006 after a period of about seventeen years. We are aware of the fact that the prices of the lands have arisen manifold and these may be in millions of rupees per Kanal in certain places in Rawalakot.
Keeping in view the legal position strengthened by the reports referred above, the petitioners, therein, were entitled to the amount of compensation which they demanded from the Collector in the reference application initially.
' The upshot of the above is, that the appeal is partly accepted, the judgments of Courts below are amended and petitioners are declared entitled for compensation amount of Rs,2,00,000 per Kanal along with 15% compulsory acquisition charges with no order as to the costs.