Muhammad Azam Khan, C.J.--The above titled appeal and petition for leave to appeal arise out of the same judgment of the High Court, therefore, these are proposed to be disposed off through a consolidated judgment.
2. The land of the petitioners, Muhammad Yousaf and others was acquired by the Collector Land Acquisition, Bagh through Award No. 2/05 on 12th May, 2005. Dissatisfied, the land owners filed a reference application before the Collector. The Collector Land Acquisition, Bagh referred the matter to the Reference Judge, District Bagh. The Reference Judge through judgment and decree dated 19th April, 2008, accepted the reference and enhanced the compensation. Dissatisfied, the petitioners, Muhammad Yousaf and others, filed an appeal in the Azad Jammu & Kashmir High Court. The High Court vide its judgment and decree dated 29th January, 2014, enhanced the compensation, determined the compensation at the rate of Rs. 10,00,000/- per kanal along with 15% compulsory acquisition charges. From the said judgment and decree of the High Court the Azad Government & others has filed direct appeal under Section 42(11) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, read with Order XII, of the Azad Jammu & Kashmir Supreme Court Rules, 1978, while Muhammad Yousaf & others have filed petition for leave to appeal.
3. On 16th June, 2014, Mr. Mansoor Pervaiz Khan, the learned Advocate-General, raised a preliminary objection that the value of the subject matter in the Court of first instance was more than Rs.
50,000/-and the High Court has altered the judgment & decree of the Court immediately below while enhancing the compensation, therefore, under Section 42(11)(d) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, direct appeal lies in the Supreme Court. The petition for leave to appeal is not competent. The petitioners on 12th June, 2014, filed an application for conversion of the petition for leave to appeal into appeal.
4. Kh. Muhammad Nasim, Advocate, counsel for the petitioners, submitted that no doubt under Section 42(11)(d) of the ' Azad Jammu & Kashmir Interim Constitution Act, 1974, when the value of the subject matter in the Court of first instance and in the High Court is not less than 50,000/- rupees and the High Court alters, varies or set-asides the judgment of the Court immediately below, then direct appeal lies in the Supreme Court. The petitioners inadvertently have filed petition for leave to appeal. The learned counsel while relying upon the case reported as Chief Administrator Auqaf (Nazame-Alla Auqaf) vs. Sain Ghulam Ahmed and others [2013 SCR 715], drew our attention towards Paragraph No.5 of the referred judgment and argued that the Court in the said case has observed that application for converting the appeal into petition for leave to appeal has been filed after a period of 4 months from the date when the objection was raised, had the petitioner filed application within the time, it was worth consideration. He submitted that in this case the objection was raised on 6th June, 2014, He filed application for converting the petition for leave to appeal into appeal only within a period of six days, as such the petitioners are entitled for condonation of the delay.
5. Mr. Mansoor Perviaz Khan, Advocate-General, submitted that the provisions of Section 42(11)(d) of the Azad Jammu & Kashmir 'Interim Constitution Act, 1974, are mandatory in nature. There is no ambiguity in the constitutional provisions that direct appeal in the matters, as one in hand, lies in the Supreme Court. He submitted that when the value of the subject matter in the Court of first instance was and in the High Court is not less than Rs. 50,000/- and the High Court has altered, varied or set-aside the judgment and decree of the Court immediately below, then direct appeal lies in the Supreme Court. The learned Advocate-General, relied upon the case reported as Gulzar Hussain vs. Azad Government through its Chief Secretary, Muzaffarabad and 3 others [2013 SCR 1043]. He submitted that no ground for condonation of delay is made out by the petitioners.
6. We have heard the learned Advocate-General as well as the counsel for the petitioners and perused the record. The land of the petitioners was acquired by the Collector Land Acquisition, Bagh. The compensation was assessed as Rs. 2,01,519/- per kanal along with 15 % compulsory acquisition charges. Dissatisfied, the petitioners filed a reference application before the Collector, which was entrusted to the Reference Judge. The Reference Judge enhanced the compensation to Rs. 5,27,272/- per kanal along with 15% compulsory acquisition charges. The petitioners filed an appeal in the Azad Jammu & Kashmir High Court. The High Court accepted the appeal and enhanced the compensation to the tune of Rs. 10,00,000/- per kanal along with 15% compulsory acquisition charges. From these facts it is crystal clear that the value of the subject matter in the Court of first instance and in the High Court was more than Rs. 50,000/- and the High Court has altered the judgment of the Reference Judge. Section 42(11)(d) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, in clear terms says that when the value of the subject matter in the Court of first instance was and in the High Court is not less than Rs. 50;000/- and the High Court has altered, varied or set-aside the judgment & decree of the Court immediately below then direct appeal lies in the Supreme Court. The matter has already been considered by this Court in the case reported as WAPDA & others vs. Taj Begum and others 12014 SCR 5881, whereby it was held as under: "The proposition in hand relates to Section 42(11)td) and (e) of the Act, which provides that the appeal shall lie to the Supreme Court of Azad Jammu & Kashmir from any judgment, decree or final order of the High Court of Azad Jammu & Kashmir if the amount or value of the subject matter of the 'dispute in the Court of first instance was and also in dispute in appeal is not less than fifty thousand rupees or such other sum, as may be specified in that behalf by the Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below. The proposition came under consideration of this Court in a case reported as Muhammad Sharif & 7 others vs. Azad Government & others [1997 SCR 351], wherein it was observed that under Section 42(11)(d) direct appeal is competent only if value of the subject matter in the Court of first instance was and in appeal is not less than fifty thousand rupees and the High Court has altered the judgment. The proposition again came under consideration of this Court in the case reported as Chief Administrator Auqaf vs. Sain Ghulam Ahmed Nisar & 38 others [PLJ 2012 SC (AJ&K) 1], wherein it has been held as under:
15. It, therefore, follows that under clauses (d) and (e) of sub-section (11) of Section 42 of the Interim Constitution Act, 1974 a direct appeal lies to the Supreme Court if the amount or value of the subject matter in the first Court as well as in appeal before the Supreme Court is not less than fifty thousand rupees or any increased sum specified by the Act and the judgment, decree or final order placed before the Court is varied or set aside by the High Court.
' If the judgment, decree or final order by the High Court involves directly or indirectly claim or question respecting property of fifty thousand rupees, amount or value and the High Court has varied or set aside the judgment, decree or final order of the Court immediately below.'
' The provision i.e. Section 42(11)(d) of the Azad Jammu & Kashmir Interim Constitution Act, 1974 is unambiguous. When the value of the subject matter in the Court of first instance and in the appeal is not less than fifty thousand rupees and the High Court has altered or varied the judgment or decree of the Court immediately below, then a direct appeal lies in this Court."
' Thus, it is concluded that if the value of the subject matter in the Court of first instance was and in the appeal is not less than Rs. 50,000/- and the High Court has altered, varied or set aside the judgment and decree of the Court immediately below, then direct appeal lies in the Supreme Court.
7. We have also considered the argument of "Kh. Muhammad Nasim, Advocate, counsel for the petitioners that in the case reported as Chief Administrator Auqaf (Nazam-e-Alla Auqaf) vs. Sain Ghulam Ahmed and others [2013 SCR 715], this Court has observed that had the appellant filed application within a period of limitation from the date when the objection was raised then he was entitled for condonation of delay. In the referred case the proposition was quite different. This Court has not observed as is argued by the learned counsel for the petitioners. In the referred case, the objection was raised that direct appeal in the Supreme Court is not competent because the High Court has not altered or varied the judgment of the Court immediately below, therefore, direct appeal is not competent, the aggrieved party may file petition for leave to appeal. The counsel for the appellant in that case argued that he filed appeal in misconception on the basis of judgment of this Court delivered in the case reported as Muhammad Khan and another vs. Muhammad Shafique and another [2001 SCR 49], wherein it was observed by this Court that direct appeal is competent in this Court when the value of the subject matter in the lower Court and in the High Court is not less than Rs. 50,000/-. On this proposition, a full bench was constituted and the objection raised by the respondent was up-held and it was declared that direct appeal is not competent in the Supreme Court in the cases where although value of the subject matter in the Court of first instance was and in the High Court is not less than Rs. 50,000/- and the High Court has not altered, varied or set aside the judgment of the Court immediately below. It was declared that appeal is not competent. It was observed that if for the sake of arguments we consider the argument that the appellant was mislead by the above referred judgment of this Court, then too it was enjoined upon the appellant to file the application for treating the appeal as petition for leave to appeal soon after the announcement of judgment on 29th April, 2011 or within a period of 60 days. The learned counsel for the appellant could not furnish any explanation for filing application after four months of the announcement of the judgment. The appellant is negligent, therefore, not entitled for condonation of delay. The ratio decidendi in that case is not applicable in the present case. Even otherwise, we have observed in the case reported as Gulzar Hussain vs. Azad Government through its Chief Secretary, Muzaffarabad and 3 others [2013 SCR 1043], that application for conversion of appeal into petition for leave to appeal or petition for leave to appeal into appeal can only be entertained if the same is filed within the prescribed period of limitation.
The prescribed period of limitation is 60 days, therefore, no case for condonation of delay is made out by the petitioners, the same merits dismissal.
8. Civil Appeal No.83 of 2014, titled Azad Government and others vs. Muhammad Yousaf and others has arisen out from the same judgment of the High Court. The land of the respondents, Muhammad Yousaf and others was acquired by the Collector Land Acquisition for the construction of the Electricity Transformer Workshop at the Bagh city. The Collector Land Acquisition through Award No. 2/2005, dated 12th May, 2005 assessed the compensation at the rate of Rs. 2,01,519/-per kanal along with 15% compulsory acquisition charges. The respondents filed a reference application before the Collector, who referred the matter to the Reference Judge, Bagh. The Reference Judge enhanced the compensation to the tune of Rs. 5,27,272/-per kanal along with 15% compulsory acquisition charges. The respondents filed an appeal in the Azad Jammu & Kashmir High Court. A learned single Judge in the High Court vide impugned judgment and decree dated 29th January, 2014, accepted the appeal and enhanced the compensation to the tune of Rs.
10,00,000/- per kanal along with 15% compulsory acquisition charges, hence this direct appeal.
9. Mr. Mansoor Pervaiz Khan, the learned Advocate- General, while arguing on behalf of the appellants, submitted that the judgment of the High Court is against law and the record. The compensation has been assessed while relying upon the sale-deeds in respect of smaller pieces of land, which could not be made basis for enhancement of the compensation. He submitted that award was drawn in the year, 2005 and the High Court has relied upon the sale-deeds, executed in the year, 2001. He requested for acceptance of the appeal.
10. While controverting the arguments, Kh. Muhammad Nasim, Advocate, counsel for the respondents, submitted that the land of the respondents is a precious land situate within the municipal limits of Bagh City, which has a potential to be utilized for commercial purposes. He requested for dismissal of the appeal.
11. We have heard the learned Advocate-General as well as the learned counsel for the respondents and perused the record. As has been stated above that the land of the respondents was acquired for the construction of Electricity Transformer Workshop which is situate within the municipal limits of Bagh City. They claimed that the prices of the land in the Bagh City are higher and requested for compensation at the rate of Rs. 1,50,000/- per marla. The respondents have relied upon the sale-deeds Ex. "PA", "PB" and "PC". Through sale-deed Ex. "PA", the land measuring 3 marla has been sold against a price of Rs. 3,90,000, in the year, 2005. Through sale-deed Ex. "PB", the land measuring 61/4 marla has been sold against the price of Rs. 3,00,000/- on 26th December, 2001 and through sale-deed Ex. "PC", the land measuring 61/4 marla has been sold against the price of Rs. 3,00,000/- in the year, 2002.
12. The method for determination of the compensation under Sections 23 and 24 of the Land Acquisition Act, 1894, is that the sale-deeds registered during the period of one year prior to the issuance of notification under Section 4 of the Land Acquisition Act, 1894, have to be considered but this is not a sole criteria for determination of the compensation. The sale-deed registered immediately after issuance of the notification under Section 4 and prior to the issuance of award, are also relevant for determination of the compensation. Apart from that this Court in a number of cases has observed that while determining the compensation, the market value of the land has to be considered while keeping in view the potential of the land for use of which the same may reasonably be put in future. It was observed by this Court in the case reported as Faiz Akbar Khan and others vs. Azad Government and others [1996 SCR 132] as under: "... It may be pointed out that while assessing the market value, the land is not to be valued merely by reference to the use for which it was being made at the relevant time but also the use to which it can reasonably be put in future ...."
' In another case reported as Azad Government and 2. Others vs. Mst. Razia Farooqi and others [1996 SCR 136], it was observed as under: "It is evident from the case law cited at Bar that the Supreme Court of Pakistan and this Court have taken the view that if the geographical position of the land acquired is such that it has the potential for being put to the use for business or the same can be used for the construction of the residential accommodation, the market value of the land can be based even on the sale-deeds which pertain to smaller portion of land Similarly in case reported as Marawat Khan and 4 others vs. Collector Land Acquisition, Mangla Dam Raising Project and 2 others 12013 SCR 12241, it was observed as under: "6. Before proceeding further, it may be observed that the basic principle laid down by the Apex Court of Pakistan and the Apex Court of the State of Azad Jammu & Kashmir is that the land is not to be valued merely by reference to the use to which it is being put at the relevant time, but also by a reference to the use to which it is reasonably capable of being put in future; and the market value is the potential value of the property at the time of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time ...."
' Admittedly, the land of the respondents is situate within the municipal limits of Bagh City. District Bagh and City is a hilly area and land owners are holding small pieces of land and in Bagh City, land is hardly available, that is why small pieces of land are sold. Therefore, the sale-deeds executed in respect of the smaller pieces of land, are relevant for determination of the market value and compensation. The land is situate in the municipal limits, it has potential to be utilized for the residential as well as commercial purposes and if the land owners had sold the land in the open market they would have fetched higher price as compared to the one awarded by the Collector Land Acquisition. The High Court has correctly assessed the market value and awarded the compensation in accordance with the provisions contained in Sections 23 and 24 of the Land Acquisition Act, 1894.
' The result of the above discussion is that petition for leave to Appeal No. 142/2014, titled Muhammad Yousaf and others vs. Azad Government and others is dismissed being filed incompetently, whereas Civil Appeal No. 83/2014, titled Azad Government and others vs. Muhammad Yousaf and others is dismissed having no force. There will be no order as to the costs.