1. ' SARDAR ABDUL HAMEED KHAN, J.---The above captioned cross appeals have been addressed against the judgment and decree passed by learned District Judge Kotli on 22-9-2003, whereby, the compensation of awarded land was enhanced.
2. ' Facts of the case necessary for resolution of the controversy are that the land comprising Survey No, 906 measuring 6 marlas situated in Pang Peeran Tehsil Kotli belonging to Ch.Raheem Dad, appellant/respondent was brought in use for construction of link road between college gate to Suzuki stand at Kotli without acquiring the same under law. Ch. Raheem Dad, appellant/respondent invoked extraordinary jurisdiction of this court and succeeded to get direction for acquisition of the land and compensation thereof. Even then respondents did not comply with the order of the court whereupon, an application for initiation of contempt proceedings was filed. During the pendency of the said application respondents issued award dated 5-10-2001. Feeling aggrieved from the assessm ent of market value of the acquired land, Ch. Raheem Dad, appellant/ respondent filed a reference before the District. Judge Kotli. After hearing the parties the learned District Judge vide his judgment and decree dated 22-9-2003 enhanced the compensation amount up to Rs,115,000 (one lac fifteen thousands only) per marla alongwith Compulsory Acquisition Charges hereafter referred as (CAC). It was further ordered that the respondents therein, shall pay 14% profit upon the enhanced compensation from the date of possession. Feeling aggrieved from the said judgment both the parties brought cross appeals before this court which were dismissed vide order dated 21- 5-2004. Both the parties went in the appeals before the apex Court of AJK wherefrom, the case has been remanded with the observation that this court shall decide the following points:--
(1) Whether the appeal tiled on behalf of the Administrator Municipal Corporation was competent without court-fee.
(2) Whether the court-fee cannot be paid after expiry of time limit for filing of appeal.
3. ' Sardar Ghulam Mustafa, the learned counsel for Municipal Committee, appellant/respondent, vehemently argued that neither the disputed land was acquired on the move of the department nor the acquisition process was started on its initiative, rather the road was constructed on the expense of the funds of AJK Council. Whereas, the acquisition process was initiated in compliance of the order of the High Court and after due assessment of market value compensation has been paid to the landowner. The learned counsel stressed the point that the disputed land was a land locked piece of land having no approach, which after construction of road has got a higher value.
4. The learned counsel stated that vide notification dated 9-6-2004 the disputed land has been de- awarded and this fact was also brought into the notice of the Reference Judge, but the learned trial Court has enhanced the compensation amount, which is not justified. The learned counsel pressed into service that 14% profit on the enhanced amount of compensation from the date of possession is also not justified because the disputed land was not acquired by the department therefore, the department cannot be compelled to pay the same. While concluding his arguments, the learned counsel prayed for acceptance of appeal and vacation of the impugned judgment and decree.
5. ' Kh. Abdul Basit, Advocate, the learned counsel for Ch. Rahim Dad, appellant/respondent, while controverting the arguments raised on behalf of Municipal Committee argued that the disputed land was utilized for construction of road in absence of the appellant, whereupon, the appellant moved for its compensation. The learned counsel contended that during acquisition process, market value of the disputed land was not assessed under law, therefore, the appellant was constrained to move to the Reference Judge who also failed to appreciate the evidence and other record brought on record and enhanced the compensation amount much below as was prayed for. While discussing the notification of de-award the learned counsel argued that the said notification has been issued with mala fide intention in order to deprive the appellant from his value able right of compensation. The learned counsel maintained that Municipal Committee is also aware of the fact that the road has been constructed and is being used for public purpose and the same cannot be stopped now. Even then, issuance of such notification is not justified in any manner, which is totally against the spirits of Land Acquisition Act.
6. ' I have heard the learned counsel for the parties and taken into consideration the contents of appeals, record appended therewith. Moreover, sought guidance by the judgments handed down by the Apex Court, as well as by this Court in earlier round of litigation.
7. ' Prior to discussing the merits of the case, it may be observed that Administrator Municipal Committee, Appellant/respondent filed an application for making up the deficiency of court-fee was pending before this court since 21-4-2010. Objections were also filed, after hearing the parties, the application was allowed vide order dated 24-3-2014 and the appellant was directed to make up the deficiency on or before 26th of March, 2014, and the same has been made up, hence, the question of deficiency of Court Fee stood resolved.
8. ' Another application filed on behalf of the Administrator/ appellant dated 15-3-2010 is also awaiting adjudication, whereby, the appellant has prayed for permission of filing Notification bearing No, 4077/87/2004 dated 19-6-2004, whereby, the subject land has been de-awarded by the Board of Revenue. This application has also been objected to by other side on 21-11-2011, In light of the contents of the application and objections, I am of the view, that, this matter involves interpretation of section 48 of land Acquisition Act read with Proviso to section 36 of the said Act, whereas, this notification has neither been challenged by the land owner/appellant, nor any application for amendment in the pleadings by the Municipal Committee has been moved. In this view of the matter the permission to file the notification will not be a useful exercise.
9. ' Though the point involved in the above said notification needs no deliberation by this court.
10. However, it may be observed that after acquisition of land de-award of the same cannot be allowed under law. In this regard Provisions of section 12-A, proviso to section 36 and section 48 of the Land Acquisition Act, 1894 are to be read together. Section 12-A relates to correction of clerical or arithmetical mistakes, whereas, proviso to section 36 prohibits the de-award and section 48 permits the de-award where the proceedings are not finalized. Section 3(d) denotes that the Land Acquisition Office is not a Court.
11. ' It is pertinent to note that the acquisition was completed/carried out in compliance of the order of this Court dated 9-3-2000, which has attained finality. Secondly, after acquisition process award was issued and compensation has been paid to the landowner. Thirdly, Reference No,1/2002 filed by the appellant on 6-2-2002 was filed and objection on this reference were filed by the Municipal Committee. In the objections, the Municipal Committee has verified/admitted the proceedings as correct in the following manner: - 'The proceedings of acquisition were initiated under law and compensation has been paid to the petitioner."
12. ' The above said quotation, when read with section 48 and proviso to section 36 of the Land Acquisition Act, it can safely be concluded that the notification dated 9-6-2004 which has been placed on record vide application dated 15-3-2010 by appellant/respondent after a period of six years, is not an obstacle in disposal of the instant appeals on merits.
13. ' So far as the payment of Court Fee is concerned the deficiency of Court Fee A has been made up, hence, the Appeal No,67 of 2003 also merits decision on merits ' While considering on merits the appeal filed by Administrator Municipal Committee Kotli, it is noted that the burden of proof of issue No, 2 was on respondent/appellant (Administrator Municipal Committee) which reads as under:- {{URDU TEXT}} 'To discharge above issue respondents only produced documentary evidence in shape of copies of sale-deed Ex.PA to Ex.DG and notifications Ex.DH and Ex.DI. After minute scrutiny of the evidence and the impugned judgment, it is resolved that resolution passed by the reference Judge on this issue has been passed by appreciating the said evidence carefully and properly in a legal fashion. The average price fixed by reference Judge is fully justified and is in accordance with conditions laid down in section 23 of Land Acquisition Act. In this way the respondent/Administrator Municipal Committee failed to prove the said issue and the findings of the reference Judge warrant no interference.
14. ' So far as, the appeal filed by Ch. Raheem Dad landowner/appellant is concerned, it is clear from the record that due to construction of link road the value of remaining land stood increased which, otherwise was land locked. Value of appellant's land was multiplied on the expense of 6 marlas which otherwise, was of no use for him. It is also clear from record that it is a link road which was constructed with the funds provided by the AJK Council and it was never notified for public purpose nor was included in the ADP. It was on tae direction of the High Court that value of the land is assessed for payment to appellant. The appellant claimed its compensation after the construction of road at the expense of AJK Council funds. As far as the contentions of the learned counsel for the appellant/land owner that the government auctioned its shopping plots much lesser in size to appellant's land at an exorbitant value of lacs of Rupees but a negligible amount is fixed for appellant, it is devoid of merit. Entire land of claimant was of no market value before present road.
15. Rest of his land from this number for the first time became marketable after construction of road on 6 marlas. It is not only the 6 marlas of the land but remaining land of the claimant which has now become of commercial value. So, market value of six marlas of land would be that which this six marlas would have fetched before construction of road on this land locked piece and this is gold for gold and copper for copper. Be that it may the District Judge has arrived at a just conclusion, which I think meets the ends of justice in view of price of land mentioned in the certified copies of sale-deeds placed on record which are not rebutted and thy provide the best criterion for determination of price of land between a wtil We and wl tttl prclia5gf.
16. ' However, keeping in mind the peculiar circumstances of the case and the acquisition proceedings initiated in compliance of court orders, it is obvious that Administrator Municipal Committee, Kotli did not initiate the acquisition proceedings nor demanded the land for the project at his own. In this view of the matter the resolution of the learned reference Judge to the extent of the profit at the rate of 14% on the compensation/ enhanced value merits vacation. It is pertinent to mention that in the reference application no interest/profit has been claimed/prayed by the landlord/appellant Raheem Dad, so, this resolution of the D learned Reference Judge is beyond the pleadings of the parties too. It will also not be out of place to mention that though profit is permissible under the relevant provisions of Land Acquisition Act but in this case those provisions are not attracted hence, need not to discuss. Moreover, I, am not persuaded to uphold or pass any order pertaining to profit etc which may be covered in the definition of interest, which is against the injunctions of Quran and Sunnah, therefore, the impugned judgment and decree of the learned Reference Judge merits modification to extent of following sentence:-- {{URDU TEXT}} ' For the above stated reasons, I proposed to modify the impugned judgment and decree in terms that the above quoted resolution regarding payment of interest over the compensation/ enhanced amount of compensation shall be deemed to have been deleted from the contents of the impugned judgment and decree.
17. 'The crux of the above discussion is that both the appeals are hereby dismissed for having no substance, however, the impugned judgment and decree stand modified in the manner indicated above.
18. ' Order announced. The file shall be consigned to record after due completion and sending back the record of the Courts below, with no order as to costs.