' AZHAR SALEEM BABAR, J. --- The above titled appeals come out of the same judgment and decree passed by learned Reference Judge Mangla Raising Project, Mirpur dated 13.06.2009.
2. Facts of the case are that land measuring 957 kanals, 6 marlas situated in Village Kalyal Bainsi, was acquired by Collector Land Acquisition Mangla Darn Raising Project for construction of Hemlat for affectees of Project, vide award No, 07/2006, dated 09.05.2006. Learned Collector Land Acquisition divided the land in question in two categories i,e, Mera Doem and Banjer Qadem and fixed a price of Rs, 2,50,000/- for the first category, whereas for the land falling in category two, price was fixed as Rs, 1,20,000/-per kanal. The appellants, Anwar Begum and others, feeling dissatisfied with the price assessed by Collector Land Acquisition, filed a reference before the Court below, who after hearing the parties, enhanced the price of the land in the tone that for Mera Doem kind of land the price was fixed as Rs, 2,90,000/-, whereas for Banjar kind of land, Rs, 1,40,000/- was fixed besides 15% compulsory acquisition charges. WAPDA as well as Anwar Begum and others have filed appeals against the decree passed by the Reference Judge on different grounds.
3. Anwar Begum and others in appeal No, 650/2009 has pleaded that the Court below has passed an order contradictory to the pleadings of the parties. It has been contended that Collector Land Acquisition forwarded an application to the Court of Reference Judge on 20.03.2009, wherein it was admitted that land under survey No, 1107. 1113 to 1117, 1120 to 1123 measuring 11 kanals, 12 marlas in village Kalyal Bainsi has wrongly been categorized as Banjar Qadeem, whereas this property was Mera Doem kind of land as per revenue record. Anwar Begum and others, the appellants have contended that despite admission of Collector Land Acquisition that the afore-mentioned property is kind of Mera Doem, learned Reference Judge did not take into consideration the point raised by the appellants. It has further been pleaded that evidence produced by Anwar Begum and others before the Court of Reference Judge remained unrebutted but learned Court below did not appreciate the evidence and has misread and non-read the evidence. It has also been contended that price of the land has not been assessed according to market value. The appellants prayed to the Court that price worth Rs, 10,00,000/- per kanal be fixed for the land acquired.
4. On the other hand, Water and Power Development Authority (WAPDA) in its appeal No, 905/2009 has mainly contended that price of the land under award was fixed by Collector Land Acquisition as Rs, 2,50,000/- and Rs, 1,20,000/- for Mera Doem and Banger Qadeem types of land, respectively.
Learned Reference Judge rejected the evidence produced by Anwar Begum and others, rival appellants, yet arbitrarily enhanced the compensation of the land to the extent of Rs, 40,000/- and Rs, 20,000/- per kanal for both kinds of land. As per the averments of the appellants, reference before the Court below was invalid and incompetent and learned Reference Judge has transgressed the requirements of Section 19 of the Land Acquisition Act.
5. I have heard learned counsel for the parties and gone through the record of the case. Raja Muhammad Niaz Khan, Advocate appearing on behalf of Anwar Begum and others, the appellants has reiterated the arguments raised in his appeal and has stressed that land of the appellants has wrongly been categorised as Banjer Qadeem, whereas it is Mera Doem kind of land as per revenue record. He has referred to the application of the appellants filed before the Collector Land Acquisition, whereupon the Collector has admitted that as per revenue record, the land is Mera Doem kind and it has wrongly been entered in registered Asami-wara as Banjar Qadeem Learned Collector further pointed out that he has no authority to enhance the price as award has already been issued. Learned counsel has stressed that the appellants cannot be penalized for a mistake committed by a public functionary. So, the Court below has fallen in error while overlooking the matter. Learned counsel has further stressed that the appellants have adduced documentary evidence with approval of the High Court and the Supreme Court and the, evidence produced remained unrebutted because the respondent WAPDA did not produce any kind of evidence.
6. On the other hand, Haji Muhammad Afzal Khan, Advocate appearing on behalf of WAPDA has argued that Anwar Begum and others, the appellants did not file a claim before Collector Land Acquisition during acquisition proceedings. He further maintained that as per requirements of Section 25(2) of Land Acquisition Act, Anwar Begum and others were not competent to file reference. Learned counsel has further stressed that evidence produced on behalf of Anwar Begum and others on issue No, 2 was rejected by the Court below but despite that price of the land in, question was enhanced without any justification. Learned counsel has relied on AIR 1988 SC 1652 and PLJ 2013 Lahore, HC 172.
7. Ch. Jameel Ahmed, Advocate appearing on behalf of Collector Land Acquisition has relied upon the arguments furnished by Haji Muhammad Afzal Khan, Advocate. Learned counsel further contended that award of the land was issued in the year 2005, whereas the sale-deed produced by Anwar Begum and others as evidence, is subsequent in time, so cannot be relied upon. Learned Advocates requested that appeal filed on behalf of Anwar Begum and others be dismissed and the rival appeal on behalf of WAPDA be accepted by setting aside the impugned decree.
8. During the course of arguments, Raja Niaz Ahmed Khan, learned Advocate for Anwar.Begum and others, the appellants has stressed that the Court below has overlooked the aspect of potential value of the land under award. He has referred to a case titled Rehmat Jan and 9 others v.
Collector Land Acquisition and others decided by the High Court of Azad Jammu & Kashmir on 25.03.2009. This is a comprehensive judgment, wherein the following case-law has been cited:---
(i) PLD 1998 SC AJK 36,
(ii) PLD 1995 Pesh. 78,
(iii) AIR 1979 SC 1246,
(iv) AIR 1980 Bombay 36,
(v) AIR 1964 Patna 207,
(vi) PLJ 1985 SC 326,
(vii) PLJ 1987 Pesh. 132,
(viii) 2006 CLC Karachi 440,
(ix) 1983 CLC 1879,
(x) PLD 1971 AJK HC 33,
(xi) AIR 1930 Rangoon 346,
(xii) PLD 1986 SC 158,
(xiii) PLD 2004 SC 512,
(xiv) AIR 1988 SC 1652,
(xv) PLD 2009 SC 16.
9. So far as, contention of learned counsel for WAPDA that Anwar Begum and others did not file claim before the Collector Land Acquisition during acquisition proceedings is concerned, the High Court of Azad Jammu & Kashmir has already embarked upon the point. The point has been resolved by the High Court in the following words:- ' "The objection raised on behalf of the learned Advocates for the respondents that the appellants, herein, have not filed any objections or made any claim in pursuance of notice issued to them under Section 9 of the Act, therefore, enhancement in compensation by the learned Reference Judge is violative of sub-section (2) of Section 25 of the said Act, has no substance in light of the record. No doubt, under sub-section (2) of Section 25, an applicant who has refused to make a claim or has omitted without sufficient reason to make such a claim, then the amount awarded by the Court shall not exceed the amount awarded by the Collector but this principle is attracted only when it is proved that notice was served on the claimant strictly in accordance with the special procedure laid down in Section 45 of the Act. After due service if objections are not filed or claim is not made before the Collector, then bar contained in sub-section (2) of Section 25 can be raised, otherwise, the Reference Judge is not debarred from enhancing the compensation. As Section 25(2) of the Act is of penal nature, therefore, in order to attract the same, not only the mandatory procedure relating to the service of notice, visualized by Section 45 of the Act, has to be complied with and due service is also to be proved in the Court. This view finds support from the following precedents:---
(1) Sushila Devi and another v. State of Bihar and others [AIR 1963 Patna 469].
(2) Land Acquisition Collector-V, Tarbela Dam Resettlement Organization, WAPDA Ghazi District Abbottabad and others v. Mubaras Khan and 25 others [1993 CLC 1879]."
' The argument of learned Advocate appearing on behalf of WAPDA loses its weight in the light of aforementioned conclusion.
10. I am aware of the fact that an agreement reached upon between the Government of Azad Jammu & Kashmir and WAPDA Pakistan prescribes a special yardstick for acquisition of land for the purpose of Mangla Raising. Clause 3.2 of the agreement states that "WAPDA shall pay land compensation to the new affectees at the market rate plus 15% compulsory acquisition charges in accordance with Land Acquisition Act, 1894 (Act 1 of 1894) as enforced in the territory of Azad Government of the State of Jammu & Kashmir." In the presence of afore-stated clause, land has to be acquired at the market rate and all other considerations, in my humble view are to be brushed aside. However, in order to assess market value, different considerations have to be kept in view as dilated upon, in Rehmat Jan's case, referred to above. While relying on PLD 1986 SC 158, the High Court of Azad Jammu & Kashmir has concluded that "that law is well-settled that while determining the market value of the land, the Collector has not only to consider the present potential value of the land sought to be acquired but also to consider its future possible use. The following extract of Fazal-ur-Rehman's case PLD 1986 SC 158 is being reproduced:--- ' It could hardly be the only reason for determining the compensation amount. There are other factors which have to be taken into consideration e.g. The land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, but also by reference to the uses to which it is reasonably capable of being put in the future; and market value is the potential value of the property at the time of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time. Hence, we allow the appeal with costs .......
2. It may add that this salutary principle is often ignored by the functionaries of the Government while assessing the amount of compensation to be awarded to the persons whose land is compulsorily acquired. The principle that the use to which the land is capable of being put, to the advantage of the owner, is a factor which ought to be considered by the assessing authority, has been enunciated in a number of cases. For instance in Cendar Rapids Manufacturing and Power Co. v. Lacoste (1), it was held that although any advantage which accrues due to the carrying out of any scheme for which the property is acquired, may be excluded, but while assessing the value of the acquired land, the probable use to which the owner might have put 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."
11. In yet another case reported as PLD 2004 SC 512 it has been stressed that while assessing price of the land being acquired, "compensation" and not the "market value" ought to be considered by the Collector Land Acquisition. It has further been remarked that market value is only one of such matters to be considered by the Collector or Courts. Compensation is a wider term indicating that the landowner, for various reasons, is to be compensated and not merely paid the price of the land.
12. It may be added here that potential value of the land to be acquired for public purposes relates to capability of land for its future use for some financial purpose. Learned counsel for Anwar Begum and others could not point out any such project proposed to be established in the vicinity in the near future. It is worth mentioning here that the purpose for which the land is proposed to be acquired has to be overlooked while determining market value of the land. The case reported as PLD 2009 SC 16 postulates as many as 14 guidelines for determining the market value and fair compensation of the land to be acquired. This view has been taken by the Supreme Court of Pakistan from a previous judgment reported as 1999 SCMR 1647. For the purpose of this case, relevant clause IX of the cited judgment says that:- ' "The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser. This means that Court has to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist."
13. If we examine the matter at hand in the light of above reproduced guidelines, we see that the land proposed to be acquired had no capability of use in the near future for a financial purpose. As stated earlier, learned counsel for the appellants could not describe any project proposed to be established in the acquired land or in its vicinity. If it is assumed that notification of acquisition under question did not exist at the time of publication of notification under Section 4 of the Land Acquisition Act, the land is not found to be capable of any potential value. The argument advanced on behalf of the appellants that purpose for which the land was proposed to be acquired, itself indicates potential value of the land is, therefore, weightless in the light of aforementioned guidelines.
14.In such a situation, Collector Land Acquisition was supposed to ascertain market value of the land to be acquired, at the time of notification under Section 4. A perusal of award No, 07/2006, dated 09.05.2006 transpires that Collector Land Acquisition has described in para 3 of the award, all the sale-deeds registered in the year 2004-2005. A diagram prepared by the Collector further states that two sale-deeds were registered respectively on 14.07.2004 and 20.11.2004, whereas some sale-deeds were registered in the year 2005 on the following dates:-
(i) 11.03.2005,
(ii) 12.03,2005,
(iii) 18.03.2005,
(iv) 18.04.2005,
(v) 18.04.2005,
(vi) 02.05.2005, and
(vii) 24.05.2005
15. Learned Collector Land Acquisition has described in para 4 that sale-deed dated 14.07.2004 of village Kalyal Bainsi relating to Khasra No, 1749 measuring 1 kanal, 19 marlas was purchased for residential purposes. On spot inspection by the Collector, he found a house constructed in the land.
The Collector further remarked that the sold property is situated at a distant place from the land under award. As regards sale-deeds dated 20.11.2004, 11.03.2005, 02.05.2005 and 24.05.2005, learned Collector has stated that these survey numbers are situated on Southern side of Mirpur Kotli road, wherein houses have been constructed. He further remarked that survey Nos. 3053 and 3052 are situated in front of Ali Hotel which is a commercial centre as well and is situated at a distance of around 3 KM from the land under award. He further stated that these properties have also been purchased for residential and commercial purposes.
16. Regarding sale-deeds dated 12.03.2005, 18.03.2005, 18.04.2005 learned Collector has described in para 6 of the award that property under sale-deeds dated 18th March and 18th April is situated on Southern side of Mirpur Kotli road at a distance of 100 Meter. This property was also purchased for residential purpose and was found to be situated at a distance of around 1 KM from the land under question. The Collector has further found that sale-deeds registered on 18th April, 2005 relate to shops. Keeping in view the description of land under different sale-deeds, learned Collector concluded that these sale-deeds cannot be made a standard for ascertaining market value of the land under award. Having described all that, the Collector Land Acquisition further noted that some property in villages Islam Garh and Hirdo Sahuta has been acquired for construction of Islam Garh town. He concluded that property under award in village Kalyal Bainsi is similar to the said acquired land as regards the nature and vicinity of the land. He, therefore, decided to ascertain the price of land under award in the light of already acquired land for construction of Islam Garh town. The Collector in such a situation divided the property under award into two categories, i,e, Mera Doem and Banjar/Shamalat Deh. He assessed the price of Mera Doem as 2,50,000/- per kanal and Rs, 1,20,000/- per kanal for a barren/Banjar/Shamalat Deh land. I have no reason to dissent with the opinion arrived at by learned Collector Land Acquisition. The arguments forwarded by the Collector for ascertaining the price of the land under award are reasonable and justified. Obviously, property under sale-deeds mentioned above for commercial for residential purpose cannot be made basis for assessm ent of price of land under award. Guideline No, XIII laid down in 1999 SCMR 1647 says that:--- ' "The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted, should be taken into consideration."
17. Learned Collector Land Acquisition has, therefore, committed no error in ascertaining market value of the land to be acquired on the basis of adjoining land already acquired for construction of Islam Garh town. It may also be mentioned here that guideline No, XI describes that sale-deed and mutation entries do serve in an aid to the prevailing market value. I find myself in consonance with the arguments advanced on behalf of the rival appellant WAPDA that learned Reference Judge on the one hand did not rely upon the evidence produced by Anwar Begum and others and on the other hand enhanced the amount of compensation without furnishing any plausible explanation.
Judgment of the lower Court is, therefore, not maintainable.
18. So far as, the point that awarded property was better in kind is concerned, it is worth mentioning that Collector Land Acquisition Mangla Dam Affairs in his comments sent to the Court of Reference Judge has stated that he has calculated the market value of the awarded property, keeping in view the nature of land and the price fixed by another award of the adjoining area. It is also mentioning that Anwar Begum and others filed an application before the Collector Land Acquisition for rectification of revenue record regarding survey Nos. 1107 to 1120. The applicants described that their property is Mera Doem in kind and it has wrongly been registered as barren/Banjar in Asamiwara register. The applicants, in support of their application attached copies of Jamabandi 1996-97 and 2004-05. The application was marked to Tehsildar Islam Garh for report, whereupon the Revenue Girdawar reported the matter in the light of record. Learned Collector Land Acquisition registered the following decision on the application on 29.10.2008:--- {{URDU TEXT}}
19. Opinion of the Collector Land Acquisition was submitted before the Court of Reference Judge but he has overlooked the same for the reasons best known to him. It is very much clear from the inquiry report of the revenue staff that land under survey Nos. 1107, 1113 to 1117, 1120 to 1123 is Mera Doem kind according to register Jamabandi for the year 1996-97, 2000-01 and 2004-05. The Collector Land Acquisition admitted that land has wrongly been described by Tehsildar Revenue as Banjar Qadeem, whereupon the price has been assessed. Keeping in view, such nature of land I am of the view that Anwar Begum and others, the appellants cannot be penalised for an error committed by the public functionaries. The afore-mentioned property ought to have been categorised as Mera Doem, whereas it has wrongly been assessed as Banjar Qadeem and a low price has been fixed. It was perhaps for such a situation when their lordships in the Supreme Court of Pakistan in guideline No, XI of the previously mentioned judgment has described that sale-deed and mutation entries do serve as an aid to the prevailing market value. I am, therefore, inclined to hold that price of land under the Banjar category has wrongly been assessed.
'Nutshell of the above discussion is that property owned by the appellants Anwar Begum and others is categorized as Mera Doem and it is held that the appellants are entitled to compensation of land according to the diagram below. {{URDU TEXT}} ' As a result, the appellants are entitled to enhanced amount of Rs, 15,08,000/- and compulsory acquisition charges amounting Rs, 2,26,000/-. The petitioners would be entitled to a whole amount of Rs, 17,34,200/- besides the compensation amount already assessed. The appeal filed by Anwar Begum and others is, therefore, accepted in the terms indicated above by setting aside the impugned judgment.
' Appeal No, 905/2009 filed on behalf of WAPDA is dismissed. Fresh record of register Jamabandi and Khasra Girdawari is also attached.