MUHAMMAD SHERAZ KIANI, .J.---The above titled appeal has been addressed against the judgment and decree passed by Reference Judge, Mangla on 31.07.2008 whereby, the learned Reference Judge, Mangla enhanced the meager amount of compensation in favour of appellant.
2. Precise and common facts forming background of the above captioned appeal are that land measuring 2249 kanal 18 Marla situated at village Thoth Tehsil and District Mirpur was acquired for extension of Mangla Dam Raising Project Mirpur by the Collector Land Acquisition MDRP Zone-I Mirpur. It was stated that Muhammad Rarrizan Datt, petitioner/ appellant herein filing instant reference against the award No,127/07 averred therein that a piece of land measuring 17 kanal 11, marla situated in village Thothal was acquired and alleged that the said land was situated within the limits of Municipal Committee Mirpur and the land was used to supply clay for bricks-kiln and was potential commercial land and market value was not less than Rs,80,00000/- per kanal but the Collector fixed the compensation of the appellant's land according to its kind as Rs,400000/- for Maira Doim and Rs,200000/- for Banjir Qadeem. Feeling dissatisfied from the assessment of market value of the acquired land the petitioners/ appellants herein brought a reference before the Reference Judge Mangla on 07.02.2008. It was averred that the market value of the disputed land has been assessed much lower to the one year average and its market value. In 'objections filed by the other side it was alleged that the land in dispute is "Banjir Land" therefore, the market value, determined by the Collector Land Acquisition is justified. In light of the pleadings of the parties the learned trial court framed issues and directed the parties to lead evidence. On completion of the proceedings the learned Reference Judge vide judgment and decree dated 31.07.2008 accepted the reference application and enhanced the compensation to Rs,500000/- P.K for its kind Maira Doim and Rs,300000/- P.K for its kind Banjir Qadeem along-with 15% CAC. The land owners/appellants have filed the above appeal for further enhancement of compensation.
3. Muhammad Ramzan Datt, Advocate, the appellant submitted that in spite of holding that the compensation of the acquired land determined by the Collector Land Acquisition was not adequate a meager amount has been enhanced by the learned Reference Court without considering the evidence in an arbitrary manner. The learned counsel submitted that according to valuation table prepared by Collector District Mirpur the market value, of the land situated in village Thothal has been fixed as Rs,8,40,000/- per kanal and the Collector-respondents has given no reason to deviate from the said amount. According to learned counsel and appellant, the market value of the acquired land under reference is much higher than fixed by Judge Reference Court. It is further contended by learned counsel that the clay of the acquired land was used for the production of bricks in bricks kilns and thus it was commercial land and this aspect of the case was also not considered by the learned Court below. The learned counsel further submitted that in a case titled WAPDA v. Mst. Inayat Begum and others" the apex Court of AJ&K while enhancing and fixing the market value of acquired land situated in the same village Thothal fixed the compensation amount as Rs,10,63,333/- per kanal and under the rule of consistency the appellant is also entitled at least for the same compensation amount. In support of his version, he referred the following authorities:-
1. 2015 SCR 712.
2. An Unreported caste of Supreme Court of AJK titled Ch. Muhammad Siddique etc. v. Azad Govt.
And others decided on 15.07.2011.
3. Unreported judgment of Supreme Court of AJ&K titled WAPDA v. Mst. Inayat Begum and others" decided on 04.06.2015.
4. Unreported judgment of Rehmat Jan and others v. Collector Land Acquisition decided on 27.01.2011.
5. Unreported judgment of apex Court of AJ&K titled "Muhammad Riaz v. Collector Land Acquisition Mangla Dam etc. Decided on 26.03.2015.
4. On the other hand, Muhammad Zakria Bhatti and Sardar Sidra Advocates for respondents controverted the arguments raised by the learned counsel for the appellant and submitted that the Judgment and decree of the lower Court is quite in accordance with law and no illegality has been committed by the said Court. The learned Reference Judge has already taken a lenient . View and enhanced the compensation amount fixed by the Collector Land Acquisition. The petitioner/appellant has not been able to grove his case by producing any cogent and reliable evidence and it has been prayed by learned counsel that appeal of the appellant may be dismissed.
5. I have heard the learned counsel for the parties and also gone, through the record of the case.
6. The land of the appellant was acquired by the respondents, Collector Land Acquisition Mangla Dam through Award No,127/07 dated 29.09.2007. At page No,2 of the award, respondent/ Collector admitted the fact that in village Thothal District Collector Mirpur through Notification No,2002/788- 91 dated 31.12.2002 fixed the value of agriculture land of village Thothal as Rs,8,83000/- per kanal.
The Collector Land Acquisition at page 3 of the award also admitted the fact that in village Thoth due to requirement of the land, the market value and prices of the said land is very high, and the land under reference comes within the limit of Municipal Corporation. In this village there are bricks kilns, schools and other government buildings and the said land is also valuable agricultural land giving good crops and is the source of income of the owners. The relevant portion of the award is given below:-- {{URDU TEXT}}
7. But while fixing the compensation amount, the Collector has not taken into consideration the abovementioned factors in a judicious manner arid gave no sound reason, even for deviating from the fixed market value by the District Collector given in valuation table. Furthermore, the learned Reference Judge also held that the compensation of the Collector land was not fixed adequately and fairly but he enhanced the compensation amount not in accordance with the evidence and admitted fact, rather at his own whims and desire arbitrarily.
8. According to report of Patwari Exh.PB, the clay of the land under reference was used in the production of the bricks and the land under reference according to Exh.PC was given to kiln owner Ch.Tahir Zaib by the appellant on lease for using his land in the production of bricks, so it is established that in fact the land under reference was used for commercial purpose and needless to say that for the production of bricks the clay which is used is of high quality. According to Exh.PG, Collector/Deputy Commissioner Mirpur issued a notification on 31.12.2002 under section 27(a) of Stamp Act, 1899 and fixed the value of the agricultural land situated in village Thothal as Rs,42000/- per marla (i.e, 8,40,000/-per kanal). According to copy of sale deed Exh.PH, the land measuring 16 marla was sold to the vendee for consideration of Rs,800000/- on 28.04.2007. The appellant in his statement deposed that in the vicinity of the acquired land the land was sold for Rs,50,000/- per marla and he intended to use the acquired land for residential purpose in future.
No evidence whatsoever-has been produced by respondents in rebuttal and it is established principle of law that un-rebutted evidence is sufficient proof of the case. This view. Finds support from the case reported as 2013 YLR 969. So, when the learned Reference Judge has also held that the compensation amount is not fair, just and appropriate then the question arises what should be the fair amount of the compensation in this case. Although the valuation table given by the District Collector is meant for collection of the stamp duty and other fees leviable upon registration of the documents etc. But at the c same time it is relevant factor which can be considered for determination of the market value of the land as held by the Hon'ble apex Court in the case titled "WAPDA etc. v. Inayat Begum and others" referred herein above. More importantly in the said case while delivering the judgment eight appeals were disposed of through a single judgment and in those cases the land owners of the village Thothal were a party against WAPDA and Collector Land Acquisition Mangla Dam and the subject matter was the same award No,127/07 dated 29.09.2007,which is also subject matter of this case and appellant also is the land owner of the village Thothal and the land is also situated in village Thothal, so except the different names of the land owners there is nothing different in the referred case titled "WAPDA etc. v. Mst. Inayat Begum etc." decided by Hon'ble apex Court of AJ&K on 04.06.2015 and in that case the market value/compensation amount of the acquired land of village Thothal was fixed as Rs,10,63,333/- per kanal. The relevant portion of the judgment is reproduced below:-- "In the case in hand as per valuation table the price of the agricultural land for Mozia Thothal has been fixed as Rs,42000/- per marla. The land-owners also brought on record in evidence the sale- deeds executed in the same vicinity. Therefore, while following the dictum laid down in the referred judgments the compensation of awarded land shall be determined while taking into consideration the average value of the land prescribed in the valuation table (i.e,, 42,000/- per marla) and sale-deeds (i.e,, Rs,50,000/- and 67500/- per marla), which comes to Rs,53,166/- per marla (i.e,, 10,63,333/- per kanal)."
9. As it is evident from the above reproduced paragraph, the Hon'ble Supreme Court of AJ&K has fixed the compensation amount of the land acquired through the same award in the vicinity of the land under reference as Rs,10,63,333/- per kanal, then I have no reason to fix the compensation amount other than that of the land under Reference in the instant case because under the rule of consistency and principle of equality the appellant cannot be discriminated against by any stretch of imagination, and his land was not less D valuable as it was used for commercial purpose and its clay was used for production of the bricks and there is nothing on record which may be suggestive that the land of the appellant was substandard and useless, rather it was used for commercial or residential purpose. The evidence produced by the appellant is unattributed and even in the award the Collector Land Acquisition/ respondent also admitted the fact that it was valuable land, so, the learned Reference Judge has wrongly fixed the compensation amount less than its market value and according to above mentioned judgment and by following the principle of consistency and equality, the actual, fair and appropriate amount of compensation of the land under reference is Rs,10,63,333/- per kanal along with 15% CAC irrespective of its kind as in that case the compensation was fixed irrespective of the kind of the land as well.
10. So the land under reference could potentially be used for commercial purpose and the learned Collector fixed the compensation of the land under reference according to its kind as Maira Doim and Banjir Qadeem is not correct. This distinction, difference and classification was made in those days when there was no use of chemical fertilizer and farmers used to fertilize their lands particularly with manure (animal excretes) and that land yielded more crops than other kinds of the land i.e, 'Maira Awal', 'Maira Dom' etc, but in the present days for cultivation purpose of the lands which is cultivated and fertilized by chemical fertilizer difference particularly of 'Maira Awal' and 'Hael' does not exist because these kinds of land were classified centuries ago when there were no modern mechanical agricultural devices and chemical fertilizers, the farmers were dependent only on traditional implements and manure, generally the lands near to their houses were fertilized by manure and were called as "Hael" and the lands of same shape, having likewise soil and potentiality with same use of cultivation if not manured that was called as 'Maira Awal' but now a days both kinds are used for same purpose i.e, cultivation and both are easily fertilized with chemical fertilizer by farmers. So classification of `Hael' and 'Maira Awal' with use of chemical fertilizer by farmers has become insignificant and meaningless, but our revenue department so far has not made efforts to declassify both kinds as one. So from this point of view fixation of the compensation amount regarding whole land under reference shall be same, the acquired agricultural land is either 'Maira Awal' or "Hael" even Banjer Qadeem can be more valuable as the same can be used at least for residential purpose. So, such classification for purpose of compensation has become immaterial.
11. Furthermore in the case titled Murawat Khan v. Azad Govt. And others reported as 2013 SCR 1224, the compensation amount was fixed by the Hon'ble Supreme Court, regardless of its kinds, so same principle is followed in this case as well.
12. In the impugned judgment it has been held that the plaintiff is entitled of the compensation to the extent of land measuring 12 kanal 7 marla as the rest of land measuring 5 kanal 4 marla being an evacuee land was treated in the ownership and in the name of Custodian and this finding of lower Court has not been challenged specifically in the memo of appeal neither during course of arguments so, the appellant would be entitled for compensation to the land owned by him.
Therefore, in the light of what has been stated above by accepting this appeal judgment and decree of the learned Reference Judge is hereby set aside. The market value of the acquired land under reference is fixed as Rs,10,63,333 per kanal irrespective of its kind with 15% compulsory acquisition charges. Thus, compensation is enhanced. The award is accordingly modified.