Raja Saeed Akram Khan, J.-- The captioned appeal has been directed against the judgment and decree passed by the High Court on 2.6.2015, whereby the appeals filed by the contesting parties have been dismissed.
2. The necessary facts for disposal of the instant appeal are that the respondents & others through award No. 615-18, dated 28.6.2003, acquired the land for construction of Girls Middle School, Hattian Bala in lieu of compensation @ Rs. 2,00,000/- per kanal along with 15% compulsory acquisition charges. The appellant-land owner, filed a reference application in the Court of Additional District Judge/Reference Judge, Hattian on 12.9.2003 for enhancement of the compensation. After hearing the parties, the learned Reference Judge, Muzaffarabad vide judgment and decree dated 18.5.2005 accepted the reference and enhanced the compensation of the land from Rs. 20,000/- to Rs. 2,60,000/- per kanal along with 15% compulsory acquisition charges. Feeling aggrieved, the appellant-land owner filed an appeal in the High Court for further enhancement to the tune of Rs. 7,00,000/- per kanal. The respondents, herein, also filed an appeal in the High Court against the compensation enhanced in favour of the appellant. The learned High Court vide consolidated judgment and decree dated 2.6.2015, dismissed both the appeals, hence, this appeal.
3. Mr. Muhammad Yaqoob Khan Mughal, Advocate, the learned counsel for the appellant, argued that the judgments and decrees passed by the Courts below are against law and the facts of the case, therefore, the same are not sustainable in the eye of law. He argued that the appellant succeeded to prove her claim with cogent and un-rebutted evidence but the learned High Court has not taken into consideration this important aspect of the case. In continuation of the arguments, he submitted that the land in dispute is situated at Srinagar Highway, Muzaffarabad and falls within the territorial limits of town committee, which can be used for commercial purpose. The learned counsel submitted that both the Courts below have not taken into consideration all these factors while determining the compensation which is clear violation of section 23 of the Land Acquisition Act, 1894.
4. On the other hand, Mr. Mansoor Pervaiz Khan, Advocate-General, at the very outset, while raising preliminary objection regarding the maintainability of the appeal submitted that the same has incompetently been filed. He contended that the learned High Court through the impugned judgment has neither varied nor set aside the decree or final order of the Reference Judge, therefore, under section 42(11) (d) & (e) of Azad Jammu & Kashmir Interim Constitution Act, 1974 no direct appeal is competent.
5. We have heard the arguments of the learned counsel for the appellant and the learned Advocate-General at some length along with record made available. While attending the preliminary objection raised by the learned Advocate-General regarding the maintainability of the appeal, it would be appropriate to reproduce here the relevant provisions of law, i.e., 42(11) (d) & (e) of Azad Jammu & Kashmir Interim Constitution Act, 1974, which reads as under:- "(11) An appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir.-
(a) ..............................................
(b) ..............................................
(c) ..............................................
(d) 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 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; or
(e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value 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;
(f) ..............................................."
A glance reading of the above provisions show that a direct appeal lies in this Court when the value of the subject-matter in the Court of first instance and in the appeal is not less than fifty thousand rupee and the High Court has altered or varied or set aside the judgment or decree of the Court immediately below. There is no ambiguity in the language used in the Constitutional provision, whereas, the position in this case is different.
The perusal of record reveals that the learned High Court has neither varied nor set-aside the decree/final order of the Reference Judge (the Court immediately below). As we have observed that the learned High Court neither varied nor set aside the decree of the Reference Judge, therefore, the objection raised by the Advocate- General has substance, which is sustained. Even otherwise, when the learned counsel for the appellant was confronted with this legal proposition, he was unable to controvert the same. Similar proposition came under consideration of this Court in a recant unreported judgment of this Court titled Azad Govt. & 3 others vs. Muhammad Rahim Khan & 38 others (Civil Appeal No. 236 of 2015, decided on 8.2.2016, wherein it was observed as under:-- "5. ..........Leaving aside the arguments of learned counsel for the parties the examination of record reveals that through the impugned judgment the learned High Court has neither varied nor set-aside the decree/final order of the Reference Judge (the Court immediately below). Thus, in this state of affairs according to the provisions of section 42(11)(d) and (e) of Azad Jammu and Kashmir Interim Constitution Act, 1974 no direct appeal is competent......"
In another case reported as WAPDA & others vs. Taj Begum & others [2014 SCR 588], it has been held as under:-- "....The proposition in hand relates to Section 42(11)(d) 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...."
Thus, we are convinced that the appeal filed by the appellant is not maintainable as the same was filed incompetently. Therefore, there is no need to attend the other questions raised by the learned counsel for the appellant. Resultantly, this appeal stands dismissed with no order as to costs.