1. ' SARDAR ABDUL HAMEED KHAN, J.---This is consolidated judgment in 3 civil references Nos. 275/07 dated 22-11-2007, 278/07 and 280/07 both dated 1-12-2007 decided by Reference Judge Mangla Dam Raising Project Mirpur on 30-10-2008 .
2. 'Distinct facts giving rise to both these appeals are that the Collector Land Acquisition Mangla Darn Raising Project (Zone-II) Mirpur, acquired for a compensation the land measuring 1295 Kanals, 17 Marlas, situated at Village Pagal Chak Tehsil Dudyal District Mirpur for upraising the present level of Mangla reservoir upto 1250ft. Above sea level and issued the award on 15-8-2007 bearing No,38/07.
3. Feeling aggrieved by the said award, the appellants Khadim Hussain etc. Moved an application before the Collector Land Acquisition for a reference to Collector by 3 separate applications and the Collector Land Acquisition forwarded all the 3 references to the Collector Land Acquisition for answering the following objections/questions raised by the petitioners: -
(a) Whether that the compensation was determined less than the market value and it should be minimum Rs,20,00,000 per Kanal?
(b) Whether the petitioners received the compensation money under protest?
4. ' The learned Reference Judge Mangla Dam Raising Project. Mirpur after consolidating all the above 3 references, accepted the plea of appellants Khadim Hussain etc, while answering the reference declared/entitled the petitioners for enhancement of the compensation money. Feeling aggrieved by the impugned judgment and decree of the learned Reference Judge Mangla Dam Raising Project Mirpur, Khadim Hussain etc. Preferred a joint appeal and WAPDA etc also filed a cross appeal. As both the appeals are against the same order, hence I propose to decide both the appeals by this single order.
5. ' The learned counsel for the parties were ordered by the honourable Chief Justice at Circuit Mirpur on 12-9-2013 to file written arguments and to' place the file for judgment at headquarter.
6. ' Written arguments have been filed by both the parties. The crux of the written arguments filed by Mr. Bostan Chaudhary. Advocate the learned counsel for Khadim Hussain etc appellants is that the Reference Judge Mangla Dam. Raising Project Mirpur has increased in the award which is very nominal and contended that the impugned order merits modification and enhancement of the compensation money upto Rs,20,00,000 per Kanal. It is further contended that details of the awards given in para 3 of memorandum of appeal may be taken into consideration. Moreover, the evidence led by the appellants in shape of oral as well as documentary evidence was not appreciated in a legal fashion by the learned Reference Judge. It is further contended that in the light of the evidence of the appellants, the minimum market value of the acquired property has been established by the appellants to the tune of Rs,20,00,000 and above. It is further contended that from the perusal of so many judgments and decrees by the Reference Judge Mangla Dam Raising Project Mirpur that this flat rate of increase has already been decided, so in this case a preconceived wrong figure has been increased, which is very nominal. It is further contended that it is the requirement of administration of justice that the judicial decision must be independently, fairly and only be decided by the Court on the evidence brought by the parties, It is further contended that this pre-conceived formula to increase compensation on percentage basis negates the very purpose. Of fair, honest and generous compensation to the affectees. The learned counsel further contended that documentary evidence consisted of the sale-deeds, which are admitted in evidence, which is evident from the trend of the cross-examination adopted by the respondents, whereas the learned Reference Judge has failed to appreciate this important evidence and rejected these documents on the basis of surmises and conjectures, hence the impugned order merits modification. The learned counsel also referred 4 witnesses produced in support of contentions of the reference and elucidated that the acquired land is at one Kilometer distance from Dudyal City from a big municipality. It is further contended that this court has increased compensation value of an affected land in Village Siakh from Rs,75,000 to Rs,800,000 per Kanal. The learned counsel referred unreported cases of Rehmat Jan (Appeal No, 61/09), Maqsood Bibi's case (Appeal No, 84/11), Gulzar Hussain's case (Appeal No,17/08), Ismail's case (Appeal No, 63/11) and Ch. Siddique Advocate's case (Appeal No,25/10) and also referred the following reported case law:--
(1) PLD 2004 AJK 22,
(3) PLD 2004 SC 511,
(4) PLD 2004 (AJ&K) 22. ' and prayed for acceptance of the appeal and increase in compensation value Rs,20,00,000 per Kanal and more. The learned counsel repudiated the facts and grounds of the cross-appeal filed by the respondents and prayed for dismissal of the cross-appeal with heavy costs.
7. ' On the other hand, Najam-us-Saqib Advocate the learned counsel repudiated the arguments advanced on behalf of appellants and contended in his written arguments that the impugned judgment and decree of the Reference Judge Mangla Dam Raising Project Mirpur for enhancing of compensation of land is illegal and unlawful as such. The learned counsel assigned reason for the vacation of the impugned order that the judgments and decrees passed by the learned Reference.
8. Judge Mangla Dam Raising Project Mirpur are bad, illegal, arbitrary and contrary to law. It is further contended that issue No, 9 was to be proved by the respondents, but failed to do so, hence this issue was decided against the respondents, despite the fact the subordinate court quite surprisingly enhanced the compensation in the name of price like of properties and for future value, which is against the provision of section 23 of Land Acquisition Act. It is further contended that property was acquired for public purposes to upraise the Mangla Dam to generate and enhance the electricity capacity for public to meet the public requirements of country and to improve the agricultural sector to prevent the country from famine and drought. It is further contended that the learned Reference Judge has failed to appreciate the clear provision of Land Acquisition Act, 1894 along with AJ&K Land Acquisition Rules 1996. The learned counsel contended that the respondents have miserably failed to bring on record any reliable documentary or oral evidence for enhancements of suit amount and the Reference Judge has enhanced the compensation amount on the basis of surmises and conjectures. The learned counsel defended the award issued by the Collector Land Acquisition on all 4 corners and prayed for setting ,aside the impugned judgment and decree of learned Reference Judge Mangla Dam Raising Project Mirpur and referred the following case-law:-
(1) 1993 CLC 432
(2) 2010 SCM R 1523
(3) 2000 YLR 1046
(4) PLD 2002 SC 84 ' I have heard the learned counsel for the parties and gone through the record of the case and minutely scrutinized oral as well as documentary evidence led by the petitioners before the learned Reference Judge Mangla Dam Raising Project Mirpur.
9. The facts of the case need not to be repeated. Before commenting upon merits of the case, it deems expedient to reproduce section 23 of the Land Acquisition Act, 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-- ' firstly, the market value of the land at the date of the publication of the notification under section 4, subsection (1) ' secondly, the damages sustained by the person interested, by reason of the taking of any standing crops or 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, movable or immovable, in any other manner, or his earnings; ' fifthly, if, in consequence of the acquisition of the land by the Collector's 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 damage (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."
10. ' I have gone through documentary evidence referred by the counsel for appellants in shape of sale-deeds Exh. PG, PH, PI, PJ and PK and copy of Revenue Record Exh. PB, PE PF and a copy of award Exh. PB.
11. From the perusal of the entries of the Revenue Record, it transpires that the land acquired was consisted of an orchard measuring 8 Kanals, bricks Kiln, 10 Kanals whereas a sale-deed Exh. PJ pertaining to the same Village in Paggal Chak dated 6-10-2003 is about a land measuring 14 Marlas against consideration of Rs, 10 lacs which comes to about 72 thousands per Marla, which has been executed by one of the appellants Karam Hussain, Exh. PH dated 28-6-2005 for land measuring 10 Marlas against consideration of Rs, 5 lacs, say 50 thousand per Marla, sale-deed Exh.
12. PI dated 14-7-2005 for land measuring 6 Kanals, 5 Marlas against consideration of Rs, 75 lacs, Exh.
13. PJ dated 17-12-2004 for land measuring 2 Kanals, 5 Marlas against the consideration of Rs, 35 lacs, Exh. PK dated 4-1-2005 for land measuring 1 Kanal 6 Marlas for consideration of Rs,9 lacs and Exh.PL, dated 29-7-2005 for land measuring 1 Kanal, 9 Marlas against a consideration of Rs, 6 lacs. The statements of the witnesses of the appellants, Abdul Waheed Patwari, Hassan Gul, Rashid Mehmood and Muhammad Tasleem and statement of one of the appellants Khalid Jahangir (attorney) have been taken into consideration, wherein they have stated that the land is at the distance of 1 to 2 Kilometer from Dudyal Municipality, which falls within a developed area situated in on mettled road and they have also stated, that at the time of award, the market value of land was 15 to 25 lacs rupees per Kanal.
14. For assessing the justified value of the land acquired, I have gone through the contents of the award and taken into consideration the compensation amount assessed by the Collector and the enhanced compensation money by the Reference Judge. Keeping all these points including documentary evidence, oral evidence, Collector's award and the Reference Judge's view, and the date of notification issued under section 4 of the Land Acquisition Act, 1894, which is 1-11-2005 average market value of the land in question according to the kinds of land is justified/calculated as under:- Sr.
15. No.Kind of landValue assessed by Reference Judge per kanalEnhanced compensation money by this court per kanal
1. Hail Rs.5,40,000 Rs. 6,00,000
2. Mera awal Rs.4,80,000 Rs. 5,30,000
3. Mera doam Rs.3,70,000 Rs. 4,10,000 4.Other ghair mumkinRs.1,65,000 Rs. 1,85,000 ' Keeping in view the provision of section 23, above referred evidence and the discussions, the appeal of the appellants Khadim Hussain and others (Appeal No,453/09) is accepted in the terms indicated above and the respondents are directed- to pay the compensation money as enhanced in above para along with the 15% compulsory acquisition charges. The Appeal No, 463/09 titled WAPDA and others v. Khadim Hussain and others, being without any force is hereby dismissed with no order as to costs. .