MOHAMMAD AZAM KHAN, CJ. --- The titled appeal by leave of the Court arises out of the judgment of the High Court dated 29.2.2012 whereby Writ Petition No. 187/2010 has been dismissed.
2. The appellants filed a writ petition in the High Court alleging therein that land measuring 763 kanals, 14 marlas was in the ownership of appellants which was acquired by the respondents through' award No. 7/2008, dated 19.9.2008. It was alleged in the writ petition that the petitioners have constructed shops over the land measuring approximately 2 kanals, comprising survey Nos.
305 and 309 in Chattar Kalas, Muzaffarabad. The supplementary award was issued by respondent No. 5 and the compensation of trees, houses, shops etc. Was awarded in favour of the owners but the compensation of shops was not assessed. They challenged the award and requested for setting aside the same. In the written statement the respondents seriously contested the writ petition by alleging that alternate remedy by way of reference under the Land Acquisition Act is available to the petitioners. The writ petition is not maintainable. It was further claimed that the shops were constructed on the land after issuance of notification under Section 7, therefore, they were not entitled to compensation of shops. A learned Single Judge in the High Court dismissed the writ petition.
3. Mr. Sadaqat Hussain Raja, Advocate, counsel for the appellants, submitted that the judgment of the High Court is against law and not maintainable. It was incorrectly filed by the High Court that alternate remedy by way of reference is available to the appellants. The fact of the matter is that the case of the appellants is not covered under the provisions of Land Acquisition Act. The reference under Section 18 can be filed if there is a question of enhancement of compensation. The appellants have not raised the question of enhancement of compensation. They have challenged the award on the ground that shops constructed over the land have not been assessed for compensation.
4. While controverting the arguments of the counsel for the appellants, Mr. Farooq Hussain Kashmiri, Advocate, counsel for the respondents, argued that the judgment of the High Court is perfectly legal. The shops were constructed after issuance of notification under Section 4 of the Land Acquisition Act. It is a question of fact which cannot be resolved in writ jurisdiction. The learned counsel further submitted that in the presence of alternate and efficacious remedy by way of reference under Section 18 of the Land Acquisition Act, writ petition is not maintainable. The High Court has correctly resolved the issue.
5. We have heard the learned counsel for the parties and perused the record. The appellants claimed in the writ petition that their land was acquired for construction of King Abdullah University.
Their houses and shops were constructed in the said land. In the initial estimate prepared by the surveyors the value of the houses and shops was assessed but the Collector while issuing the award failed to award the compensation for the shops. The question raised in the writ petition is that the appellants claimed that shops were already constructed over an area of 2 kanals approximately comprising survey Nos. 305 and 309 of village Chattar Kalas and surveyors have included these shops for assessm ent of compensation while the claim of the respondents is that the shops were constructed after issuance of notification under Section 4 of the Land Acquisition Act. It is a pure disputed question of facts whether shops were constructed prior to the issuance of notification under Section 4 of the Land Acquisition Act or the shops were constructed after issuance of the above-referred notification. It is a well-settled law that where disputed question of fact, which needs inquiry into the facts, is raised, it cannot be resolved in writ jurisdiction. This Court in the case reported as Raja Muhammad Hayat Khan v. Board of Revenue AJ&K & 3 others [1999 SCR 158], observed as under:-- ".................. Moreover this being a question of fact couldn't have been resolved in exercise of writ jurisdiction by the High Court. So that objection raised by the learned counsel for the appellant having no substance in it, merits no consideration."
In the case reported as Ch. Arshad Hussain v. Rukhsar Ahmed & others [2006 SCR 85], it was observed as under:- ................. Normally the disputed questions of fact are not allowed to be raised and resolved in writ jurisdiction. Moreover as the respondent has been notified as returned candidate from LA-IV, Mirpur IV, therefore, this petition in the present form has become infructuous and is liable to be dismissed summarily on this ground too without entertain into the merits of the case."
Similarly in the case reported as Muhammad Mahmood Bawani v. Deputy Controller Building Zone- B & others [2007 SCM R 1209] it has been opined as under:- "7. Upon hearing learned counsel for the parties and going through the record, we are firmly of the view that this was not an appropriate case for being agitated in the Constitutional jurisdiction of the High Court and the writ petition was totally ill-advised and completely misconceived."
The writ petition merits dismissal on this score.
6. The High Court dismissed the writ petition on the ground that alternate remedy by way of reference under Section 18 of the Land Acquisition Act is available to the petitioners, appellants herein. Under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 a writ petition is maintainable by the aggrieved person if no other alternate or efficacious remedy is available to him. Alternate remedy is not always a ground for refusal of the writ. Where the alternate remedy is not efficacious one, writ petition is maintainable but where alternate remedy is also efficacious, the writ petition is not maintainable. It was observed in the case reported as Zaffar Umar Khan & another v. Agricultural Development Bank & 5 others [1996 SCR 321] as under:--- "................. The perusal of the authorities submitted at Bar shows that the recent weight of the judicial opinion is in support of the view that where an adequate alternate remedy is available, the writ jurisdiction of the High Court cannot be invoked.
Similarly in another case reported as Nusrat Bibi v. SHO & another [2011 M LD 223], it was observed as under: "9. I find force in the argument of the learned counsel A.A.G. Inasmuch as every case has to be decided on its peculiar facts and circumstances and in the presence of an alternative statutory remedy writ petition is not maintainable. Reliance is placed on an unreported judgment of the Hon'ble Supreme Court of Pakistan dated 9.9.2009 passed in Civil Petition No. 1398-L of 2009 "R.I Ashraf etc. v. Muhammad Saleem Bhatti, etc."
7. The appellants have challenged the award on the ground that compensation for the shops has not been paid to them. The compensation can be claimed by the interested person under Section 18 of the Land Acquisition Act, 1894. It will be useful to reproduce the same, which reads as under:- application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made,---
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.
(3) The Collector shall forward a reference to the Court within a period of 30 days from receipt of the application under sub-section (1) unless the Collector rejects the application within aforesaid period on any of the grounds provided by this Act."
8. A plain reading of the Section reveals that reference under Section 18 of the Land Acquisition Act can be filed for determination of the Court in respect of (i) measurement of land (ii) amount of compensation (i.e) person to whom it is payable or (iv) apportionment of the compensation among the persons interested. The question raised before the High Court in the writ petition relates to the amount of compensation that the shops are built over the land which has been acquired but the compensation has not been paid. The appellants can successfully challenge the award under Section 18 of the Land Acquisition Act for payment of compensation and produce the evidence as it is the version of the appellants that measurement of shops has already been done. In the presence of alternate and efficacious remedy by way of reference, the writ petition is not maintainable and the High Court has correctly dismissed the same.
9. The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs.
Before parting, however, we may observe that the appellants are at liberty to move the authorities for conducting inquiry into the matter whether shops were constructed in the land prior to the issuance of notification under Section 4 of the Land Acquisition Act and if proved, then the compensation be paid to them accordingly.