1. ' SARDAR ABDUL HAMEED KHAN, J. --- Both the above titled appeals have been filed to call in question the validity of judgment and decree passed by learned' Reference Judge, Mangla Dam Raising Project, Mirpur dated 22.04.2009.
2. ' Facts forming background of the instant appeals are that land under Khewet Nos. 121, 122 measuring 14 Marlas, 7 Sarsai, situated in Village Thothal Tehsil Mirpur has been acquired by the Collector Land Acquisition, vide award No, 127/2007, dated 29.09.2007. It has been alleged that the Collector Land Acquisition had not determined the price of land according to its market and potential value. The appellant filed a reference application before the learned: Reference Judge for enhancement of price of the land alongwith 15% compulsory acquisition charges: The learned Reference Judge -Mangla Upraising Project Mirpur, vide its judgment. And decree dated 22.04.2009, enhanced the price of the land at the rate of Rs, 7,00,000/- per Kanal for its kind' Hael, Rs, 6,00,000/- per Kanal for its kind Maira Awal and Rs, 7,00,000/ - for its kind Ghair mumkin Aabadi alongwith compulsory acquisition charges at the rate of 15% on the enhanced compensation.
3. ' The appellant, Sajawal Khan filed an appeal against the judgment and decree passed by the' learned Reference Judge, Mangla Upraising 'Project, Mirpur, alleging therein that the learned Reference Judge failed to consider and appreciate the oral as well as documentary evidence brought on record by the appellant in its true perspective. It has further been alleged that the learned Reference Judge has not enhanced the compensation of the awarded land the light of the provisions of Sections 23 and 24 of the Land Acquisition Act as well as evidence brought on record.
4. It has been averred that the judgment of the Trial Court is bad in law, which is not maintainable.
5. The appellant prayed for enhancement of the compensation of the awarded land at the rate of Rs, 1.5 Crore per Kanal alongwith 25% compulsory acquisition charge. Interest at the rate of 6% has also been sought.
6. ' In cross appeal filed by. WAPDA, it has been alleged that the judgment and decree passed by the learned Reference Judge is not in accordance with law which is liable to vacation. It has further been alleged that the Court below has wrongly enhanced the compensation amount It has been prayed that the judgment and decree passed by the learned Reference Judge may be set aside and the award issued by the Collector Land Acquisition be restored.
7. ' I have heard the learned Advocates for the parties and gone through the record of the case with my utmost care.
8. ' In appeal titled Sajawa! Khan only one issue No, 6 assailed and enhancement of compensation money by contending that the land acquired is situated in main Bazar Chandral within the heart of Municipal Committee Mirpur, hence be treated as commercial.
9. ' While in the cross appeal by appellant WAPDA has challenged the impugned judgment and raised objection on resolution passed on issue No, 1 regarding limitation and Issue No 6 regarding enhancement of compensation. Therefore the impugned judgment and decree to the extent of rest of issues is kept intact. As far as issue No, 1 regarding limitation of reference is concerned, from the perusal of the findings of Reference Judge, it transpires that award was issued on 29.09.2007 and the reference was presented before Collector on 23.02.208, whish was filed before Reference Judge on 02.04.2008, hence it is clear that the reference was presented before the Collector after 4 months 24 days. It is not rebutted by the record or by the respondent wAPDA by any evidence. The Collector has reported that from the date of knowledge the reference is within time. From the perusal ! The record, it is found that the issue No, 1 has been resolved by the learned Reference Judge in accordance with law as provided in Section 18(2) of Land Acquisition Act, 1894 as adapted and enforced in AJ&K by the AJK Adaptation of Laws Act, 1959, hence the resolution of the learned Reference Judge is upheld. By resolving the issue No, 6, the Reference Judge has enhanced the compensation amount for acquired land for its kind "Hael" and "Ghair Mumkin Abadi" @ Rs, 7 lac per Kanal and for its kind "Maira Awal" @ Rs, 6 lac per Kanal.
10. ' The contention of the learned counsel for appellant that the Jistrict Registration Authority has fixed the minimum market value of the land of Village "Thothal" @ Rs, 84 lacs per Kanal. It may be correct but neither copy of any order or Notification has been appended with the reference nor tendered in evidence, hence cannot be considered.
11. ' As far as the contention of the appellant/land owner regarding the location of the acquired land and it being a small piece of commercial nature is concerned, has substance . It is established in the light of evidence of parties that The land is situated at main road of Chandral Bazar within the Municipal Corporation. The learned Reference Judge has opined that the appellant has not probed the alleged market price i,e, 1.8 Crore, but at the same time opined that the oral evidence of the appellant unrebutted, hence enhanced the compensation amount. However, the learned Collector has not given any finding on the appellant's claim of commercial nature of land, which is also unrebutted, hence the resolution an issue No, 6 warrants modification.
12. ' It is proved and unrebutted by the respondents that the subject land is situated in Bazar, moreover, being a small piece of land of commercial nature, compensation according to kind of land is not warranted, a flat rate is warranted.
13. ' Keeping in view the over all evidence of the appellant, conditions laid down in Section 23 and limitation prescribed in Section 24 of Land Acquisition Act, I am persuaded to enhance the compensation amount of acquired land to the tune of Rs, One million per Kanal.
14. ' In the light of above-stated facts, the appeal No, 592A/09 filed by appellant/Sajawal Khan is accepted and by modifying the decree and judgment of learned Reference Judge, Mangla Dam Raising Project, Mirpur dated 22.04.2009, the compensation amount in respect of acquired land measuring 14 Marias 7 Sarsai being Khewets Nos. 121 & 122 situated in Village Thothal Tehsil Mirpur is enhanced to Rs, 10 lacs per Kanal alongwith CAC @ 15% on the enhanced compensation.
15. ' Resultantly, the appeal No, 644/09 titled WAPDA v. Sajawal Khan and another stands dismissed. No order as to costs. Civil .