' MUNIR AHMED CHAUDHARY, J. --- The supra titled both the appeals have been directed against the judgment and decree of Reference Judge, Mangla Dam Raising Project, Mirpur dated 17.06.2009, through which the compensation of the acquired land was enhanced. The counter appeals are hereby disposed of through a single judgment.
2. The gist of the facts giving rise to the present appeals are that the land measuring 25 Kanals and 02 Marlas bearing survey Nos. 841 and 841 min Khewat No, 109/01 min was acquired for raising of Mangla Dam under Award No, 38/2007, dated 15.08.2007 The compensation of the awarded land was determined by the Collector as Rs, 1,50,000/- PK alongwith 15% as compulsory acquisition charges. Feeling aggrieved, the owners of the land/the present appellants Muhammad Bashir and others submitted a reference before Collector Land Acquisition for enhancement of the compensation. The said reference was referred to the learned Reference Judge, Mangla Dam Raising Project, Mirpur for disposal under law. After hearing the parties, the learned Reference Judge, Mangla Dam Raising Project enhanced the compensation of the awarded land as Rs, 1,65,000/- PK alongwith 15% charges for compulsory acquisition on the enhanced amount. Feeling dissatisfied from the determination of the compensation, both the parties, the owners of the land Muhammad Bashir and others and WAPDA and others have filed the instant counter appeals before this Court.
3. Arguments were advanced by the learned counsel for the parties. Mr. In Imitiaz Hussain Raja, advocate, the learned counsel for the appellants Muhammad Bashir and others argued that the market price of the acquired land bearing survey No, 841 measuring 17 Kanals and 18 Marlas was not less than Rs, 20 lacs PK and Rs, 25 lacs for the land bearing survey No, 841 min, measuring 07 Kanals and 04 Marlas, but the Collector Land Acquisition as well as the learned Reference Judge have not considered the market value of the land prevailing at the time of acquisition and potential value of the precious agricultural land. The learned Reference Judge has not enhanced the compensation in accordance with the evidence placed on record and the settled principles of law regarding acquisition of the land. The appellants have produced documentary and oral evidence on record in favour of their version. The sale-deeds placed on record regarding the same village have been tendered in the evidence which corroborate the version of the appellants regarding market value of the disputed land. The learned counsel requested to accept the appeal filed by Muhammad Bashir & others and to dismiss the appeal filed by WAPDA & others and referred the following precedents in support of his arguments.
' PLD 1980 Lah. 145 2010 SCR 47 ' PLJ 2013 SC (AJ&K) 274 ' An unreported case titled as Marawat Khan & others v. Collector Land Acquisition & others decided by the apex Court of AJ &K on 23.04.2013 under appeal No, 71/2011
4. While controverting the learned counsel for the appellants, Mr. Javaid Najam-us-Saqib, Advocate, the learned counsel for WAPDA & others contended that the Collector Land Acquisition has determined the compensation in accordance with the settled principles of law, but the learned Reference Judge has enhanced the compensation without legal justification and against the facts and evidence on record. The appellants Muhammad Bashir & others produced irrelevant documentary and oral evidence before the learned Reference Judge. The potential value and location of the acquired land are the important considerations to be taken at the time of determination of the compensation. The disputed land was mentioned as Ghair Mumkin Kassi in the revenue record, so such-like land cannot be compared with the land having potential value and its location near the population and road side. The appellants Muhammad Bashir & others have produced the evidence against their pleadings. The learned counsel requested to accept the appeal filed by WAPDA & others and to dismiss the appeal filed by the appellants Muhammad Bashir & others and referred the following precedents in support of his arguments.
1994 SCR 95 1999 SCR 381 PLD 2002 SC 84 ' Ch. Muhammad Jamil, Advocate, the learned counsel for the Collector Land Acquisition owned the arguments advanced by the learned counsel for WAPDA & others and requested to accept the appeal filed by WAPDA & others and to dismiss the appeal of the appellants Muhammad Bashir & others.
5. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record and perused the precedents referred carefully and minutely. Both the appellants have challenged the findings of the learned Reference Judge, Mangla Darn Raising Project, Mirpur regarding enhancement of the compensation only. Both the parties have not challenged the findings of the subordinate Judge regarding the remaining issues. Meaning thereby that the findings of the Reference Judge on the said issues have attained finality. So, the main proposition to be resolved is, whether the compensation of the disputed land has been enhanced in accordance with the provisions of law, facts and evidence available on record or not? The appellants Muhammad Bashir & others produced two witnesses namely Muhammad Fiaz and Munir Hussain alongwith Muhammad Sagheer being attorney of the appellants before the learned Reference Judge. The appellants produced documentary evidence as well in shape of attested copies of sale-deeds of the concerned village Pagal Chak. Firstly, the details of the said sale-deeds are mentioned as under:- "(a) Zaffar lqbal v. Arshad Mehmood executed on 14.07.2005 regarding the land measuring 06 Kanals and 05 Marlas sold against a price of Rs, 7.5 million exhibited as "PC" (Rs, 60,000/-per Marla).
(b) Sarfraz Hussain v. Liaqat All executed on 01.04.2006 regarding the land measuring 04 Kanals sold against a price of Rs, 6.00 million exhibited as "PD" (Rs, 75,000/- per Marla).
(c) Rashid Mehmood v. Arshad Mehmood executed on 17.12.2004 regarding the land measuring 02 Kanals and 09 Marlas sold against a price of Rs, 3.5 million exhibited as "PE" (say Rs, 72,000/- per Marla)"'.
6. The counter-appellants who were respondents in the reference did not produce any witness. The statement of the learned counsel for WAPDA & others was recorded who only relied upon the record of the Collector Land Acquisition. The above-mentioned witnesses of the appellants Muhammad Bashir & others stated before the Court that the market price of the acquired land was 25/30 lacs PK. The owners of the land relied upon the sale-deeds mentioned before. The learned Reference Judge did not rely on the said sale-deeds with the reasons that notification for acquisition of the land under Section 4(1) of the Act was issued on 01.11.2005 and the sale-deeds "PD" and "PE" were not executed in the year 2005 and not relevant within the meaning of Section 23(1) of the Act. The learned Judge has observed that the sale-deed "PC" being executed in the year 2005 is the relevant document. The learned Reference Judge did not rely on the said sale- deed as well with the reason that there was no proof that the land transferred through the said sale-deed was either similar in kind and similarly located as the acquired land.
7. It is an admitted principle of law that the sale-deeds executed within one year after issuance of notification under Section 4(1) of the Act can be relied upon for determination of the market value of the acquired land. The record reveals that the sale-deeds "PC" and "PE" were executed within the said period of one year. The sale-deed "PD" was executed after issuance of the notification under Section 4(1) of the Act. So, the sale-deed "PD" does not qualify to be considered. Although, the sale- deeds "PC" and "PE" were executed within the period of one year but the lands transferred through the said sale-deeds were of the kind Mera Awal. The kind of the said lands has been mentioned in the award "PA" but the kind of the acquired land has been clearly mentioned as "Ghair-Mumkin- Deegar" in the revenue record placed by the appellants Muhammad Bashir & others. It is an admitted principle of law as well that potential value, kind and location of any land is important to determine its market price. No proof has been placed on record that the potential value and location of the acquired land was the similar as of the lands sold through the above-mentioned sale-deeds.
8. The oral statements of the witnesses produced by the appellants Muhammad Bashir & others narrate that the acquired land was bearing an orchard and different kinds of vegetables were cultivated in the said land and the owners of the land used to receive a permanent income from selling of the vegetables and fruits. These facts stated by the witnesses have not been rebutted by the respondents at all. The revenue record reveals also that the land was bearing an orchard.
9. Moreover, it is a settled principle of law as well that the probable use to which the owner of the land might have put the land in future must be taken into consideration while assessing the value of the acquired land. It includes all the advantages which the land possesses, present or future, in the hands of the owner and the said owner is entitled to have the price assessed in reference to these advantages. This principle has been laid down in the precedents PLD 2004 SC 512 and 1996 SCR 132.
10. The learned Reference Judge has observed through his findings that the compensation determined was not proper and the learned Judge enhanced the compensation from Rs, 1,50,000/- to Rs, 1,65,000/-. Although, the average price as per sale-deeds placed on record is much higher but the said sale-deeds cannot be relied upon because it has been proved that kind of the lands sold through the said sale-deeds was the better one as compared to the acquired land. Even it has not been proved that the acquired land has the same potential value and location as of the lands sold through the said sale-deeds. Anyhow, the appellants Muhammad Bashir & others deserve sympathetic consideration for determination of the compensation because they were deprived of their lands without their consent and they were earning a regular income from the acquired land. The precedents referred by the learned counsel for the appellants Muhammad Bashir & others instigate to enhance the compensation to the extent of a just and proper limit. The facts of the precedents referred by the learned counsel for WAPDA & others have no conformity with the facts of the present case. The counter-appellants WAPDA & others could not prove that the enhancement made by the learned Reference Judge was not just and proper.
' In the light of what has been discussed above, the judgment and decree passed by the learned Reference Judge is modified with the observation that the compensation of the acquired land is determined as Rs, 02 lacs PK alongwith 15% compulsory acquisition charges on the enhanced amount. The appeal of the appellants Muhammad Bashir & others is accepted in the terms mentioned before. The counter-appeal filed by WAPDA & others is hereby dismissed. The present matter does not deserve any order regarding the costs. Appeal partially accepted.