1. ' SARDAR ABDUL HAMEED KHAN, J. --- As both the above-captioned appeals have been filed against the judgment and decree of Reference Judge, Mangla Dam Raising Project, Mirpur dated 30.08.2012, therefore, these shall be disposed of through this single judgment.
2. ' The precise facts giving rise to the instant appeals are that the Collector Land Acquisition Mangla Dam Affairs Zone 1, Mirpur acquired the land in dispute for upraising the Mangla Dam Raising Project through award No, 1041/11 on 22.01.2011. The property of the appellants Muzaffar Ali Zafar and his son was also acquired and they were paid compensation of Rs, 11,60,541/- and 10,20,347/- respectively Feeling aggrieved by the assessment, Muzaffar Ali Zafar and his son moved an application to the Collector for enhancement of compensation, who forwarded the same to Reference Judge, Mangla Darn Raising Project, Mirpur for decision.
3. ' The learned Reference Judge, Mangla Dam Raising Project, Mirpur after hearing the parties, after hearing the parties, enhanced the compensation to the tune of Rs, 2.90 135/- and 2,55,087/-.
4. Feeling aggrieved by the order of learned Reference Judge Mangla Dam Raising Project, Mirpur, the appellants Muzaffar Ali Zafar and an other filed the appeal for enhancement of compensation, while APDA/appellant filed a cross appeal for setting aside the judgment and decree of learned Reference Judge, Mirpur dated 30.08.2012.
5. ' Mr. Muzaffar Ali Zafar, Advocate the learned counsel argued that the objection related to limitation of filing of reference was rightly decided by the Collector as well as by the Reference Judge, as the appellants received the compensation amount under protest on 12.04.2011 and the reference was filed in the Reference Court on 23.05.2011 after 38 days. Which was well within time. The learned counsel argued at length the case on merits and reiterated the grounds enumerated in the appeal and pointed out that measurement was not exactly calculated. The learned counsel further contended that the compensation of 2 houses was assessed, but 3rd house which was residential house was wrongly termed as cattle-shed. It was further contended that the assessment @ Rs, 325/- per sqft. For whole of the constructed property was much below the rate prevailing before issuance of notification under Section 4 of Land Acquisition Act. The learned counsel further contended that the minimum compensation for the constructed property should have been awarded @ Rs, 2000/2200/- per sft. The learned counsel further contended that in the light of agreement of WAPDA 25% additional charges should have been also awarded and replacement costs @ Rs, 10% in the light of prevalent market value should have been awarded. The learned counsel pointed out that the statement of appellant's witness Kh. Ejaz Ahmed including the documentary evidence Exh. PA and PB has not been read by the Reference Judge and rest of the evidence has been misread. The learned counsel while arguing regarding the appeal filed by WAPDA contended that this appeal is without any force and the respondent has challenged only the judgment and decree of Reference Judge on Issues No, 1 and 6 only. Whereas issue No, 1 has been decided by the Reference Judge in accordance with law and the record, whereas issue No, 6 has not been decided by the Reference Judge in the light of evidence and record of the case. The learned counsel alternatively argued that both the appellants are in agreement on the point that issue No, 6 has been decided by the Reference Judge wrongly. However, it is contended that the claim of the appellants for the minimum market value to the tune of Rs, 70 lacs has been amply proved by the appellants by cogent evidence which has neither shakened in cross-examination nor the specific assertion of the value of the constructed property has been cross-examined which stood admitted. The learned counsel prayed for acceptance of appeal filed by him and another and also prayed for dismissal of appeal filed by WAPDA against them.
6. ' While controverting the arguments advanced on behalf of Muzaffar Ali Zafar and another appellants, Ch. Jamil Ahmed counsel for respondent No, 1 Collector contended that for the assessm ent of market value and for award of compensation a Committee was functioning for the purpose during the acquisition proceedings of the suit land, wherein one of the members is the owner of the house, hence the question of the market value as well as compensation awarded does not arise. Rather the appellants have waived their rights to call in question the award. It is further contended that the market value is assessed item-wise and is signed by the member of the Committee i,e, owner of the house. It was further contended that no objection was filed by the owner of the house as required under law.
7. ' On the other hand, Haji Muhammad Zakria Bhatti, Advocate the learned counsel for WAPDA also repudiated the arguments advanced on behalf of appellants/Muzaffar Ali Zafar and another and contended that the reference was time-barred and the Collector as well as the Reference Judge has erred in law while declaring the reference within limitation. It was further contended that appellants could not succeed to discharge burden of proof relating to issue No, 6, hence the appeal of the appellants is meritless. The learned counsel further contended that the Reference Judge has reached the conclusion that the appellants have failed to prove the market value of the constructed house and the grounds raised in the reference for enhancement of compensation by the Reference Judge is without lawful authority, which is bad in law. The learned counsel prayed for acceptance of appeal filed by WAPDA and also prayed for dismissal of appeal filed by Muzaffar Ali Zafar and another. The learned counsel referred case-law PLD 2000 Kar. 80, wherein it has been observed that for End administration of justice, Judge would be supposed to decide the case not on basis of his personal feeling, likeness and dislikeness but on basis of evidence available on record and in accordance with principles of law applicable to the fact of the case.
8. ' I have heard the learned counsel for the parties at length and gone through the record of the case, but I am not persuaded to dilate upon the facts of the case and other detailed points, because the appeal filed by Muzaffar Ali Zafar and another is apparently time-barred as it has been reported by the office that the appeal is time-barred. It is worth mentioning that the point of limitation has not been argued by any of the counsel for the parties.
9. ' Suffice to say that the appellants Muzaffar Ali Zafar and another filed the instant appeal against the judgment and decree of learned Reference Judge, Mirpur dated 30.08.2012 on 26.12.2012.
10. Whereas the appeal against the order of Reference Judge under Section 54 of the Land Acquisition Act is filed before the High Court within 90 days of the date of judgment and decree as provided under Article 156 of Limitation Act, 1908. Whereas the instant appeal has been filed after 117 days.
11. ' For safe administration of justice, I have minutely perused the contents of appeal and documents annexed with the memo. Of appeal. In content No, 13 of the memo. Of appeal, it is averred "that the appeal is within limitation". Neither there is any assertion for condonation of limitation in the memo.
12. Of appeal nor any application or affidavit is filed with the appeal. Even after filing of the appeal till the arguments no such attempt has been made by the appellants Muzaffar All Zafar and another.
13. So apparently the appeal is time-barred. This view of the Court is fortified by a judgment of the Supreme Court of Pakistan in a case titled Union Limited v. Bashir Ahmed and another reported in NLR 1983 Rev. 124, wherein the learned Judges of the Supreme Court Mr. Justice Dr. Nasim Hassan Shah and M.S.H. Qureshi have observed as under:-
(a) Land Acquisition Act (I of 1894) - --S. 54---Non-obstante clause "notwithstanding anything to contrary in any enactment for the time being in force"---Extent and scope of application---Contention that provisions of Limitation Act which are relatable to C.P.C. Stand excluded by non-obstante clause---Untenable---Held: It is only those provisions in C.P.C. Or any other enactment which are inconsistent with any provision of Land Acquisition Act that will stand displaced on account of non-obstante clause but remaining provisions would continue to apply.
(b) Limitation Act (IX of 1908) - --Art. 156---Time provided in Article 156 (ninty days)- - -Applies to appeals filed under Section 54, Land Acquisition Act, 1894.
(c) Regular First Appeal (RFA)--- ---Order of High Court passed in motion dismissing RFA as time-barred---Maintained by Supreme Court- - Limitation Act (IX of 1908) Art. 156 and Lan Acquisition Act (I of 1894), S. 54.
14. ' This view of the Court is further fortified by 2002 SC 474 and 1993 SCR 44.
15. ' Now the appeal No, 332/12 filed by WAPDA considered whereby the appellant has only challenged the findings of Reference Judge on issues No, 1 and 6. As far issue No, 1 is concerned. The record of the case suggest that though the Collector in his forwarding report of referent termed the reference as time-barred, however, the issue N 1 was decided by the Reference Judge in the light of the evidence of the parties and it is not negated by any evidence that the appellant received the compensation under protest on the notice of payment of compensation on 12.04.2011 and the reference was filed on 23.05.2011, which need no interference by this Court.
16. ' As far as the issue No, 6 is concerned, the resolution passed by Reference Judge has been scrutinized minutely in the light of objections of the learned counsel for WAPDA. The learned Reference Judge has appreciated the evidence of the parties in a legal fashion and followed the conditions laid down for assessm ent of the market value and the compensation money as laid down under Section 23 of the Land Acquisition Act and very rightly resolved the issue in favour of appellants Muzaffar Ali Zafar and another. It will not be out of place to mention that the appellants have brought on record sufficient material for enhancement of compensation money and deserve all the sympathies for their huge sacrifices but the Court is bound by law to adjudicate the matter in accordance with the codified law. The appeal is hopelessly time-barred and no explanation or request for condonation is on record.
17. ' The resolution on all issues passed by the learned Reference Judge in the above circumstances merit no interference by this Court.
18. ' As the cross appeal of the land owners/appellants has been dismissed on the point of limitation, otherwise the Court was of the view to further enhancement of the compensation, hence finding no error of law or fact in the impugned judgment of learned Reference Judge, the appeal filed by WAPDA merits dismissal.
19. ' In the light of what has been stated above, the appeal No, 398/12 is dismissed being time-barred and appeal No, 332/12 filed by WAPDA is dismissed on merits. A copy of this order shall be placed on other file. No order as to costs. Civil .