1. ' SARDAR ABDUL HAMEED KHAN, J.---The above titled appeals are directed against the judgment and decree of Reference Judge Mangla Dam Raising Project Mirpur dated 7-4-2008, whereby the appellants Baaz and others filed a reference for enhancing the compensation of the acquired land and the Reference Judge enhanced the compensation.
2. ' The brief facts forming the background of the instant appeals are that Baaz and others have filed a reference in the Court of Collector Land Acquisition Mangla Dam Affairs, Mirpur Azad Kashmir on 9-12-2006, who sent the same to Reference Judge Mangla Dam Raising Project Mirpur on 15-10- 2006. According to the averments made in the reference, the petitioners along with pro forma- respondents are owners-in-possession of the land measuring 28 Kanals, 2 Marlas comprising Khasra Nos. 207, 208, 216, 217, 213 and 214, situated in Village Dheri Nasrullah Tehsil and District Mirpur. It is stated that respondent No. 2 acquired the above said land vide Award No. 42 of 2006 on 20-11-2006 for upraising of the Mangla Dam Project. It is averred that petitioners and pro forma- respondents have spent a huge amount over the suit-land for cultivation and now the said land has become an agricultural land, while the official respondents shown the land of the petitioners and pro forma-respondents in the award as "Banjer Qadeem" and the respondents are going to fix the compensation at a very low rate. The petitioners stated that they moved an application to Commissioner Mangla Dam Affairs stating therein that their land has been shown as "Banjer Qadeem" against the facts. On this application, the Commissioner ordered investigation. After the investigation on spot, the nature of the above said land has been corrected as "Mera Doaim". The petitioners prayed that the land measuring 20 Kanals, 2 Marlas shown as "Banjer Qadeem" through Award No. 42/06, dated 20-112006 may kindly be corrected as "Mera Doaim". The petitioners prayed that the impugned award may be set aside and the compensation may be fixed at the market value.
3. ' After hearing the parties, the learned Reference Judge enhanced the compensation price to the extent of Rs.2,00,000 per Kanal along with C.A.C. @ Rs.15% which is calculated to Rs.2,30,000 in toto.
4. ' WAPDA/appellant has also filed an appeal against the judgment and decree of Reference Judge Raising Project Mangla Dam Mirpur dated 7-4-2008, stating therein that the impugned judgment is illegal and against the facts. It is stated by the appellant that the Reference Judge while passing the impugned order increased the compensation value without any documentary proof. The appellant further stated that the respondents impleaded the WAPDA as a party, but the Reference Judge did not issue any notice to the appellant/respondent in cross-appeal, therefore, the appellant (WAPDA) was condemned unheard. The appellant prayed that the judgment and decree passed by the Reference Judge Mirpur may kindly be set aside.
5. ' Feeling aggrieved from the judgment and decree of learned Reference Judge, Mirpur, both the parties have filed two separate subject appeals. Arguments have been heard.
6. ' Ch. Munsaf Dad Advocate the learned counsel for WAPDA argued that the WAPDA was party in the reference, but the Reference Judge did not summon and they have been condemned unheard. He further argued that the WAPDA is a necessary party and without hearing the necessary party, the impugned judgment is nullity in the eyes of law and only on this score, the judgment is liable to be set aside and the case merits remand to the Reference Judge to decide the case on merits. He has relied upon 2002 YLR 549 and a Civil Appeal No. 210 of 2007 decided by the High Court of AJ&K on 16-2-2010.
7. ' On the other hand, Ch. Muhammad Ashraf Ayyaz Advocate the learned counsel for Baaz and others argued that in the light of grounds raised in the memo of appeal, the compensation of the acquired land merits enhanced according to market value. He has referred an unreported judgment of the apex Court of AJ&K titled "Ch. Muhammad Siddique and others v. AJ&K Government and others" decided on 15-7-2011 and prayed that by accepting the appeal, the respondents may be directed to pay the compensation according to the kind of land and market value.
8. ' After hearing the learned counsel for the parties, going through the contents of both the appeals and record of the Reference Judge, it reveals that the facts and details of the case need not to be discussed in the light of the above preliminary objection.
9. ' The impugned reference was filed on 19-12-2006, in which the WAPDA was impleaded as real respondent No.
3. The interim order dated 19-12-2006 is as under:-- {{URDU TEXT}} ' The impugned order dated 7-4-2008 is also crystal clear that at the time of arguments and judgment, the appellants were represented through counsel and only non-petitioner No. 1 (Collector) was represented by counsel. It is clear that the respondent (WAPDA) was not summoned by the Reference Judge. This point goes to the roots of the case.
10. ' In 2002 YLR 549, it was held that "the University or any other Institution in whose favour the land has been acquired is fully competent to sue or defend itself and is competent to lodge the reference or appeal".
11. ' The supra cited principle was followed by the honourable Chief Justice of this court while deciding a Civil Appeal titled "WAPDA and others v. Muhammad Riasat khan and others" decided on 16-2- 2010 observed as under:- "The reference was presented and the learned Reference Judge issued notice to the Collector only.
12. Admittedly the land has been acquired on behalf of WAPDA in the name of AJ&K Government.
13. WAPDA has right to defend in view of section 50 (2) of the Land Acquisition Act".
14. ' Keeping in view, the above principles laid down by this Court as well as by the Supreme Court of AJ&K, the impugned judgment and decree is hereby set aside. The case is remanded back to the learned. Reference Judge to decide the reference afresh after hearing the parties in accordance with law. No order as to costs.
15. ' Announced.