SARDAR ABDUL HAMEED KHAN, J. --- Through the above-captioned cross appeals, one and the same judgment & decree of the learned District/Reference Judge, Muzaffarabad dated 16.01.2012 has been challenged.
2. Both the above appeals arise out of the same judgment, therefore, were heard together and are decided as such.
3.
3. Tersely, facts of the case are that land comprising survey No. 297 measuring 1 marla and survey No. 298 measuring 2 Kanals, 13 marlas was in the ownership of Raja Abdul Qayyum Khan, appellant, which was acquired vide award No. 03/2010, dated 26.01.2010 for construction of King. Adullah University Azad Jammu and Kashmir. As per stand of the appellant, in survey No. 298 measuring 2 Kanals, 13 Marlas, he has constructed a plaza consisting of shops in ground floor and 1st floor. It is alleged that compensation of the shops was not determined by the Collector in accordance with law.' Feeling dissatisfied from the determination of compensation, the appellant filed a reference before the District/Reference Judge, Muzaffarabad (Reference No. 22), on 12.03.2010. After hearing the parties, the learned Reference Judge partially accepted the reference and enhanced the compensation amount to the extent of rent of the shops. Appellant, herein, has challenged the legality and propriety of the findings recorded on issues No. 1, 3, 4, 6 and 7. It is stated that on the ground floor and 1st floor of plaza shops were built up by the appellant and the District Judge of the time inspected the spot but his successor Judge ignored the spot inspection report prepared by hin?. It is further stated that documentary evidence produced by the appellant for determination of construction rate per square feet was not taken into consideration by the learned Reference Judge.
It is alleged that the learned Reference Judge has accepted the notification Exh."PU" and document Exh."PK" but even then has not properly determined the compensation as per claim of the appellant which was tp the tune of Rs. 6,50,00,000/- (Rupees six crore
4. In the counter appeal filed on behalf of King Abdullah University, partial acceptance of reference has been challenged. It is prayed that as respondent No. 1 failed to prove the reference through cogent evidence, therefore, enhancement by the learned Reference Judge is based on no evidence and arbitrary, hence, the judgment and decree passed by the Reference Judge is liable to be set aside. It is submitted that appeal filed on behalf of King Abdullah University may be accepted whereas counter-appeal may be dismissed.
5. In an earlier round of litigation, the case was remanded to the District Judge/Reference Judge for decision on merit but on appeal the apex Court remanded the case to this Court for decision on the basis of available record/evidence. Thereafter, the file was placed before the full bench consisting of Hon'ble Chief Justice Mr. Justice hulam Mustafa Mughal, Mr. Justice Munir Ahmed Chaudhary and Mr. Justice M Tabassum Attab Alvi. The parties with their mutual agreement have filed written arguments. One of the members of the bench Mr. Justice Munir Ahmed Chaudhary has retired, therefore, the present bench has been constituted.
6. Both the parties have filed written arguments and Raja Muhammad Hanif Khan has also advanced the oral arguments. In the written arguments filed by Raja Muhammad Hanif Khan, the learned Advocate for the appellant, has submitted that the learned Reference Judge has partially recorded findings in favour of appellant on issue No. 1 and erroneously held that appellant could not prove issue No.
6. He argued that findings of the District Judge are contradictory and contrary to the record and have been recorded despite admission of the fact that shops were constructed prior to the issuance of notification dated 15.09.2006. The learned Advocate argued that appellant led cogent evidence to prove his claim and predecessor of the District Judge also visited the spot and report prepared by him and assessm ent made by the Engineer of Abaseen Associates has not been exactly taken into consideration, by the learned Reference Judge. The learned Advocate submitted that loss sustained by the appellant in monthly income has also not been taken into consideration by the learned Reference Judge. The learned Advocate contended that the learned Reference Judge while deciding issue No. 2 opined that appellant was entitled to the compensation in view of notification dated 04.04.2008 (Exr:PK) but has not granted the compensation of the built up property on the basis of policy and rules laid down in the notification, ibid. The learned Advocate argued that as the houses and shops acquired for the project known as Neelum Jehlum Hydro Power Project were situated adjacent to the land in dispute and this fact was not denied by the other side, therefore the award and other material produced by the appellant for acquisition of the land for the aforesaid project was liable to be accepted and construction irrespective of the kind of land/built up structure. The learned Advocate further contended that land/shops acquired by the respondents were being utilized for commercial purposes and this potential of the land/shops has not been considered by the learned Reference Judge. The learned Advocate submitted that findings of the learned Reference Judge on issue No. 3 is also against the record. He drew attention of the Court towards findings of issue No. 2 and submitted that the learned District Judge accepted the notification dated 04.04.2008 and letter dated 16.04.2009 but compensation has not been enhanced keeping in view the criteria mentioned in the aforesaid notification. The learned Advocate submitted that compensation of the land and shops in dispute may be determined in the similar manner to which the compensation for the Project namely Neelum Jhelum Hydro Power Project was determined in view of notification dated 04.04.2008 and relied upon the following case-law:---
(1) 1999 SCMR 1647,
(2) PLJ 2009 SC (AJK) 28,
(3) PLJ 2013 SC (AJK) 290,
(4) PLD 2009 SC 16,
(5) 2013 SCR 70,
(6) 2009 SCR 320,
(7) 2008 SCR 505.
7. In the written arguments filed by Syed Mushtaq Hussain Gillani, the Legal Advisor of King Abdullah University, it is stated that Raja Abdul Qayyum Khan/appellant failed to prove his case and the witnesses produced by him, have not supported his version. The learned Advocate contended that learned Reference Judge was not correct in enhancing the amount of rent from Rs. 1500/- to Rs.
3000/- per shdp and amount of electricity bill from Rs. 500/- to Rs. 1000/- and no reasonable justification has been furnished for the purpose. The learned Advocate contended that appellant has deliberately misconceived the facts, hence, the reference filed by the appellant was liable to be dismissed. The learned Advocate submitted that appeal filed by the Raja Abdul Qayyum Khan/appellant may be dismissed with costs whereas while accepting the counter-appeal filed on behalf of King Abdullah University, the impugned judgment and decree of the learned Reference Judge may kindly be set aside.
8. We have heard the learned counsel for the appellant and perused the written arguments filed on behalf of the learned Advocates for the parties and record of the case, too.
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9. It may be stated that the instant appeals, in first round of litigation were accepted and the case was remanded to the learned Reference Judge, for decision, afresh vide judgment dated 08.01.2014.
Both the parties preferred appeals before the apex Court of AJ&K, which were accepted and the case has been remanded to this Court for deciding the controversy on merits, vide order dated 19.06.2014.
10. For proper appreciation of the controversy, we would like reproduce the relevant provision of the Land Acquisition Act, 1894, which read as follows:--- "23. Matters to be considered in determining compensation.-- In determining the amount of compensation to be awarded land acquired under this Act, the Court shall take into consideration:--- First, the market value of the land at the date of publication of the [notification under Section 4, sub-section (1)]; Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; Thirdly, the damage (if any) sustained by the* person interested, at the time of the Collector's taking possession of the land, by reason of serving such land from his other land; Fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner or his earnings; Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land.
(2) In addition to the market value of the land as above provided, the Court shall in every case, award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition.
24. Matters to be neglected in determining compensation.-- But the Court shall not take into consideration:--- First, the degree of urgency which has led to the acquisition; Secondly, any disinclination of the person interested to part with the land acquired; Thirdly, any damage sustained by him which, if caused by a private person, would not render such person liable to a suit; Fourthly, any damage which is likely to be caused to the land acquired, after the date of publication of the declaration under Section 6, by or in consequence of the use to which it will be put; Fifthly, any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired; Sixthly, any increase to the value of the other and of the person interested likely to accrue from the use to which the land acquired with be put; or Seventhly, any outlay or improvements on, or disposal of, the land acquired, commenced, made or effected without the sanction of the Collector after the date of the publication of the [notification under Section 4, sub-section (1)]."
11. Firstly, we would like to take up the appeal filed on behalf of King Abdullah University, appeal No. 80/2012. It may be stated that the instant appeal has been filed by Mr. Farooq Hussain Kashmiri, Legal Advisor but nothing is available on record to assert that the learned counsel, the legal advisor of the University has been authorized by the competent authority/statutory body for filing of the instant appeal, therefore, this appeal is incompetent in light of the dictum of the apex Court of Azad Jammu and Kashmir in case titled 'WAPDA and another v. Muhammad lqbal and others, Civil Appeal No. 77/2013, decided on 02.12.2014, wherein their Lordships have pleased to observe as under:--- "This rule empowers the recognized agent to appear and act on behalf of the authority. Para (a) of Rule 2 provides that the persons, who are holder of powerof-attorney autrionzing them to on be half of a party and do such appearances, applications and on behalf of such parties and Para (b) deals with the person carryiry, can trade and businesess lot arid on behalf of a party and in the name of parties not resident within the local limits of the jurisdiction of the Court within which limits.
The appearance, application or act is made or done, in matters connected with such trade or business only where no other agent is expressly authorized to make and do such appearances, applications and acts. We leave the question raised by the counsel for WAPDA open for resolution in some other case that WAPDA is a foreign company in Azad Jammu and Kashmir and whether WAPDA is entitled to acquire and hold property in Azad Jammu and Kashmir or not, if directly raised. This question is not relevant at the present stage because the question before us is that the Chief Engineer/Project Director and Superintending Engineer (Resettlement) are admittedly officers of WAPDA who are working on behalf of WAPDA. They are attorney holders of WAPDA in the light of resolution No. 749/1997 passed under Section 20 of the WAPDA Act, wherein WAPDA has conferred its powers vested in it under Section 3(2) of the WAPDA Act for initiating and defending proceedings by and on behalf of WAPDA in the Trial Court and the Court of District & Sessions Judge. When these officers are holders of valid power-of-attorney, the provisions of para (a) of rule 2 of Order Ill, C.P.C., are attracted and not the provision of para (b)."
12. The similar controversy was resolved in case titled Abubakar Saley Ma yet v. Aboard Laboratories and another [1997 CLC 367], and it was observed that a company cannot orally authorize a person to sign a plaint on its behalf and ratification of the same, after institution of the plaint was also declared illegal. At page 369 of the report it was observed as under:- "The powers-of-attorney Exh.6/3 is dated 15.07.1975. It means when the suit was filed the plaintiff was not authorized to file a suit on behalf of the plaintiff. Minuets of the company, dated 14.07.1975 Exh.6/2 show that the company authorized Kamran Mirza to institute the suit against Messrs Zahoor Enterprises pending in the Court of Senior Civil Judge, Lahore and all other documents in connection with that suit against Messrs Zahoor Enterprises pending in the Court of Senior Civil Judge, Lahore and all other documents in connection with that suit on behalf of the company."
13. A careful perusal of the file reveals that the same does not contain any documentary proof authorizing the learned counsel to file the instant appeal, therefore, the same merits dismissal on this sole ground.
14. Now coming to the merits of the appeal filed on behalf of the land owners, it may be stated that the land/property under reference was acquired for construction of King Abdullah University through award No. 03/2010 issued on 26.01.2001.
15. Being the first Appellate Court, we would like to consider the controversy issue-wise. Among other issues, two issues were of crucial importance, which need detailed consideration.
16. It may be stated that through the instant appeal, resolution passed by the Trial Court on issues No. 1, 3, 4, 6 & 7 has been challenged. For convenience, we deem it proper to reproduce the above issues, which read as follow:--- {{URDU TEXT}}
17. Out of the above issues, in our estimation, issues No. 1 & 6 are of crucial importance. Therefore, in our estimation, the findings on these two issues will be sufficient to cover the remaining issues as required under Order 20, rule 5 of C.P.C.
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18. It is on record that first under 4 of tile Land Acquisition Act, 1894 was issued in 2006, however. Due the initiation of proceedings of exclusion of property from proposed award, which is obvious fiord tile record the land owner/appellant used to enjoy the right of utilization of their property and made some, r improvements on the subject property, to which, they were entitled. Because no subject can be deprived from utilizing his owned property, as per his choice. In this regard, it is established on record that the construction work of the shops was completed in the end of year 2007, whereas, the 2nd notification under Section 4 of the Land Acquisition Act, 1894 was issued in 2008, therefore, it can safely be concluded that the learned Reference Judge erred in giving findings to the effect that some shops were built after issuance of notification under Section 4 of the Act, issued in 2006. It is also admitted that the shops were rented out before the issuance of 2nd notification. Ample evidence is on record to this effect, hence, this Court is of the view thafthe learned Trial Court has misread the evidence and has not considered this fact as per its requirement.
19. It is pertinent to observe that in the above- stated circumstances, the sanction of the Collector as postulated under supra reproduced, 7th condition of Section 24 of the Land Acquisition Act, 1894 was neither necessary nor a precedent condition to claim the compensation of their improvements. Because in the case in hand, the possession was with the appellant and proceedings for exclusion of that proposed land were in progress and the same was re-notified in 2008, being the important one for the project under discussion, wherefrom, it may also be concluded, safely that the property is of vital importance and also of high value. In this view of the matter, the claim of the appellant had to be given due weight, when he was being deprived of such valuable property and being great source of his income. Moreover, it will not be out of place to mention that when a land owner has to depart for ever from his property, he should be specifically compensated to have alternate source of income and accommodation etc. And compensation should be assessed keeping in mind the price demanded by the land owner alongwith other allied matters.
20. So far as the question of assessm ent of market value of the acquired property is concerned, the file reveals that only one witness, in addition to the statement of the counsel for the University was produced by the respondents/acquiring agency, who, deposed that the market value of the land was assessed by the price assessm ent committee and not by the Collector, himself. Under the Land Acquisition Act, 1894, it is the Collactor, who is, empowered to assess the market value of the land to be acquired, keeping in view the relevant provisions of the said Act.
21. It is worth mentioning here that the learned Trial Court has not considered the statement of the land owner/appellant in its true perspective, that he has raised the construction at his own and not by any contractor. While perusing the statement of the appellant to this effect alongwith the statements of Imran Khan and Abdul Haq (Engineer transpires the subject of Abbaseen Associates) it transpires that the appellant constructed plaza/shops etc." at his own, under the consultancy of Abaseen Associates, hence the Exh.PA and PB are worth consideration and the learned Trial Court has erred in deciding this issue and ignored the principle of preponderance of probability of facts for appreciating evidence in civil case.
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22. In the above eventuality, the statement of Raja Abdul Qayyum Khan, when read in juxtaposition with the statements of Abdul Haq and Imran Khan that Abaseen Construction Company was just the consultant and not the contractor, the claim of the petitioner/appellant stands strengthened, hence, this Court is persuaded to hold that this very piece of evidence was admissible in evidence but the needful has not been done by the learned Trial Court.
23. The claim of the petitioner/appellant lends more support from the question put to the petitioner's witness by the counsel of the University, that 'the consultant firm was supervising the project?, whereas, the teamed counsel for Azad Govt. & others, in his question, while cross..
Examining the witness, admitted that according to the map, there are 30 shops in the plaza.
24. Now, coming to the conclusion of the most crucial point in the controversy in hand, i.e. Assessm ent of market value of the built up property. It may be stated that there are three versions before this Court:---
(1) The compensation assessed and fixed in the award in question.
(2) The enhancement made by the learned Reference Judge, Muzaffarabad while accepting the reference to the extent of rent of shops.
(3) The market value demanded and relied upon by the land owners which comes to Rs.
6,50,00,000/-(rupees three crore fifty lacs compensation and three crore relit/losses etc.).
25. A perusal of record reveals that the acquiring agency calculated its estimate of compensation of built up property @ Rs. 830/- per square foot, whereas, the and owner claims the same @ Rs.
2200/- per sft. It has been observed in above paras that the land owner has amply proved before the Trial Court his claim but the Trial Court failed to consider this aspect of the case, therefore, this Court after appreciation of above-mentioned evidence/record is persuaded to accept the appeal and modify the impugned judgment & decree.
26. It is proper to note that the appellant has prayed for a decree of an amount of Rs. 6,50,00,000/- and from perusal of award it transpires that total amount of compensation of 'shops and hotel etc. Was calculated in the award is Rs. 91,32,948/- out of which deduction of 25% and after the deduction of cost of shops of case No. E, F and G, a total amount of compensation to the tune of Rs.
56,76,384/- has been calculated payable to the appellant. It is held that no deduction @ 25% in view of the notification dated 19.06.2009 is permissible as mentioned therein. Relevant extract is reproduced, hereunder:- "As a general policy the deduction @ 25% for the malba of the built up structure be stopped after consultation and agreement of the sponsors of the Project."
27. As held above that all the structure/ buildings/shops/hotel/plaza etc. Stood proved constructed and completed in the end of year 2007, hence, no deduction is permissible. Whereas, the rent allowed by the Collector and then enhanced by the Reference Judge @ Rs. 3000/-rent and Rs.
1000/- electricity total, Rs. 4000/- has also been considered. It reveals from the statement of Imran Khan, PW on the question in cross-examination that there are 30 shops in plaza excluding a hotel and a Bank. Moreover, the appellant has claimed in his statement (which is un-rebutted) total income of rent etc. As Rs. 188000/- per month, hence, this claim is also proved and justified.
28. Record further reveals that two estimates are on record of the built up property on the land acquired on the covered area of about 11000 sft. (eleven thousand square feet). One of those is; @ Rs. 830/sft. Prepared by the acquiring agency, and Rs. 2200/sft. Prepared and exhibited in evidence, by the land owner. It is obvious that there are two extremes as assessed/claimed by the parties. In this state of affairs, the Court should observe temperateness. Hence, adopting the principle of equity and frugality, we hold that the petitioner/land owner is entitled to receive the compensation amount of built up structure/property at the rate of Rs. 1500/sft. Alongwith compulsory acquisition charges @ 15%, which is usefully calculated .Hereunder--- {{TABLE}} 11000 sft @ Rs.1500/- per sft Rs. 1,65,00,000/- 15% CAC Rs. 24,75,000/- Rent for 1 year @ Rs.
188000/- per month Rs. 22,56,000/- Total Rs. 2,12,31,000/- {{TABLE}}
29. In view of above, the resolutions passed by the learned Reference Judge, on issue No. 1 stands modified in the manner indicated above, whereas, the resolutions passed by the learned Trial'Court on issue No. 6 is set aside and is resolved in favour of appellant/land owner, resultantly, the issue No. 3 also stands decided in favour of the appellant and in this eventuality, issues No. 4 and 7 merit no further resolution.
30. In view of above observation, the judgment and decree under challenge merits modification, therefore, it is held that the land owner/appellant is entitled to the compensation of the whole built up structure/property etc.
31. The case-law, referred by the parties need no discussion in the peculiar facts and circumstances of the case.
32. The pith of the above detailed discussion is that the appeal No. 52/2012 titled Raja Abdul Qayyum Khan v. Azad Govt. & others stands accepted and the judgment and decree passed by the Reference Judge, Muzaffarabad on 16.01.2012 stands modified in the manner indicated above.
Resultantly, the appeal No. 80/2012 titled King Abdullah University v. Raja Abdul Qayyum Khan and others, besides being incompetent, could not succeed on merits, too, hence stands not succeed on merits, dismissed.
33. The respondents are directed to ensure payment of above-noted enhanced compensation amount as well as the rent of the shops etc., after calculation and deduction of the amount, already paid, within a period not exceeding four months, provided, this judgment is not appealed against. Cost will follow the events.
34. Order announced. The file shall be consigned to record, after due completion and sending back the record of the Court below.