' MOHAMMAD SHERAZ KIANI, J.---The captioned partial appeal has been directed against the judgment and decree passed by the learned Reference Judge Mangla Dam Raising Project Mirpur, dated 19.12.2009 whereby the Court below while accepting the reference enhanced very little amount of compensation of the acquired land of the appellants.
2. Brief facts forming the background of the instant appeal are that respondents acquired land of the petitioners/appellants, herein, comprising khewat Nos.3, 6, 9, 103, 106, 112, 115, 118, 119, 121, 134, 140, 146, 147, 151, 156, 157, 158, 161, 162, 164, 215, 220 and 234 situated in Village Thothal Tehsil Mirpur for Mangla Dam Upraising Project Mirpur, vide Award No,127/07 issued on 29.09.2007. Feeling aggrieved from the said award, Petitioners/ appellants, herein, filed a reference under Section 18 of the Land Acquisition Act, 1894 before the learned Reference Judge Mangla Dam Raising Project Mirpur, for enhancement of the compensation amount of the awarded land on 18.09.2008. It is stated in the reference application that the Collector Land Acquisition determined very tiny price of the acquired land, whereas, the market value of the awarded land is approximately Rs,100,000,00/- (one Crot)
P.K. It is craved that the land in Village Thothal is used only for the agricultural and residential purpose and the land under reference is of superior kind and adjacent to Mirpur city, therefore, its market value should be determined just like a land of the Mirpur city.
3. On filing of the reference, respondents were summoned who submitted their written statement/objections whereby the claim of the petitioners was refuted in toto and requested for dismissal of the reference application.
4. The learned Reference Judge in the light of the pleadings of the parties framed as many as 10 issues and directed the parties to lead their evidence. On conclusion of the proceedings, the learned Reference Judge, Mirpur vide judgment and decree dated 19.12.2009 accepted the reference and enhanced the compensation amount to the tune of Rs,7,00,000/- P.K. For its kind Haell, Rs,6,50,000/- P.K for its kind Maira Awal and Rs,5,00,000/- P.K for its kind Maira Doim, Rs,2,00,000/- P.K for its kind Degar Ghair Mumkin Aabadi, Rs,7,00,000/- P.K for its kind Ghair Mumkin Abadi along with 15% CAC. Feeling dissatisfied from the said judgment and decree petitioners approached this Court for further enhancement.
5. Ch. Mohammad Afzal, the learned counsel for the appellants vehemently contended that the acquired land of the appellants was of superior kind and its compensation should be determined as Rs,1,00,000,00/- P.K but the Collector Land Acquisition has illegally fixed its market value which was not justified in any manner. The learned counsel maintained that the claim of the petitioners/appellants was proved beyond any doubt before the learned Reference Judge by adducing cogent and reliable oral as well as documentary evidence. He further maintained that the enhancement made by the learned Reference Judge is totally insufficient as compared to the present hike in price of the properties. The learned counsel finally requested that by accepting the instant appeal, the compensation amount of the acquired property be enhanced to the tune of Rs,1,00,000,00/- P.K. Along with 15% compulsory acquisition charges. The learned counsel for appellants referred the copies of sale deed Exh. "PN" dated 27.06.2009 whereby land measuring 11 marals was sold in lieu of Rs,15,42000/- (1,40,181 P.M and 28,03,636 P.K), Exh. "PP" dated 27.06.2009 whereby land measuring 2 kanal 19 marlas was sold in lieu of Rs,39,00000/- (66,101 P.M, 13,22,33 P.K), Exh. "PR" dated 27.06.2009 whereby the land measuring 2 kanal 3 marlas was sold in lieu of Rs,47,50,000/- (1,10,465 P.M, 22,09,302 P.K,) Exh. "PT" dated 27.06.2009 whereby the land measuring 1 kanal 2 marlas was sold in lieu of Rs,24,20000/- (1,10,000/-P.M, Rs,22,00000/- P.K). By referring valuation table the learned counsel contended that the market value of Village Thothal was fixed as Rs,8,40,000/- P.K, so according to version of learned counsel for appellants by no means the compensation can be fixed less than Rs,8,40,000/- P.K. He further contended that as the land is used for agriculture and residential purpose so it is wrong to fix its compensation kind wise.
6. On the other hand, Haji Ch. Mohammad Afzal, Advocate for respondents repudiated the arguments of the appellants and contended that the compensation was assessed in accordance with law after detailed survey and proceedings. The learned counsel contended that the appellants, during reference proceedings failed to prove their claim through any documentary evidence but the learned Reference Judge, illegally has enhanced the compensation amount and after receiving the compensation amount, the petitioners have filed the reference for enhancement which was incompetent under the principle of acquiescence. The learned counsel finally, requested for dismissal of the appeal with costs.
7. I have heard the learned counsel for the parties and gone through the record of the case.
8. While interpreting section 23 of the Land Acquisition Act, the superior Courts of the country laid some general principles and parameters for determining the compensation of the acquired land.
In [PLD 2002 SC (sic)] it was held that land owners are entitled for maximum value and the Courts should be liberal and generous but the acquiring agency should also not be unduly burdened. In case reported as [1996 SCR 136] it was held by the apex Court of Azad Jammu and Kashmir that if the acquired land is of, commercial nature or residential use even smaller portion of land sold in the adjoining area can be made basis for fixation of compensation amount. In case reported as 2013 YLR 969 the market value has been defined in the terms that a willing seller and purchaser agree for transaction in open market at the certain price that would be called as market value and that compensation must be at the prevailing market value. In Murrwat Khan case reported as [2013 SCR 1224] the sale deed regarding the land of the same village of period of three years prior to notification issued under Section 4 of the Land Acquisition Act, was considered for the purpose and it was further observed that the land owners were entitled for the compensation of their land irrespective of its kind. Future use and potential value of the land should also be taken into consideration PLD 2010 SC (AJ&K) 37 [106 SCR 132] mere classification or nature of land may be relevant factor but not absolute yardstick Barani and Banjer land may be more valuable because of its location, neighborhood, potentiality and other benefits of these factors cannot be ignored, potential value must be taken into consideration. Market value at the time of the notification under Section 4 is one of the factor for ascertaining the value [PLD. 2004 SC 512] [1999 SCMR '1647] [PLD 2002 SC 25] [1993 SCMR 1700].
9. In [PLD '2004 AJ&K 22] it was held that while determining the compensation of the acquired land, provisions of Land Acquisition Act, 1894 were to be construed liberally in favour of public and strictly against the Government. Fundamental purpose of Land Acquisition Act, 1894 was to provide complete indemnity to the owners. Compensation of the acquired land was a quid pro quo and an equivalent in terms of money for the land with a view to fully reimburse and remedy the loss for expropriation of acquired land. Whenever a land was aquired, the interest of the owners of the land was to be safeguarded, principle for determining the compensation reflected anxiety of law giver to compensate adequately those who were deprived of property, so as to give 'gold for gold' and not 'copper for gold'. In 1997 SCMR 1670 the apex Court of Pakistan observed that:-- "It is quite well settled that one year's average sale price of land in vicinity preceding date of notification under Section 4 of the Act is only one of relevant factors for consideration in determining market value of land but it alone cannot be adopted as basis for assessment of market value. If there is other evidence available on record to establish potential value of acquired land at higher rate."
' In a case reported as [PLD 1988 SC AJ&K 6] the fair and equitable methods to determine the market value of the land described as the following:-
(i) Recent or nearest sales of part of the land under acquisition;
(ii) Recent sales of similar land in the vicinity or adjoining localities;
(iii) Capitalization of net profits or average rental value;
(iv) Capitalization of land revenue, and;
(v) Opinion of experts or evaluators.
10. In the instant case, according to the copies of sale deeds the average price comes much higher and it is difficult to make them a basis due to some distinguishable circumstances but the Collector District Mirpur, who is the government functionary, himself fixed the value of land of Village Thothal, even, in year 2002 as Rs,8,40,000/- P.K. So, it would be unjust and discriminatory to give less compensation to the land owners than the value Collector himself fixed. The written arguments of the learned counsel for respondents that the valuation table was formulated under the Stamp Act has no force because irrespective of the fact under what law the table was formulated, the fact remains that the Government charges the tax and fees by fixing the value of the land of Village Thothal as market value. The criterion for taking money from the land owners and while giving them money to the same land owners should not be different. The Hon'ble apex Court in a case titled "Ch. Mohammad Siddique v. Azad Government and others" decided on 15.07.2011 while enhancing the compensation amount also considered valuation table of the Collector.
11. As far as the fixation of the amount kind wise is concerned, it is one of the consideration but the Collector Land Acquisition in para No, at page No,3 of the award admitted the facts that the acquired land (under reference) was highly valuable an The relevant portion of the award is reproduced herein below:-- ' The learned counsel for the appellants/ petitioners strenuously argued that in case of Marawat Khan and 4 others reported as 2013 SCR 1224, the compensation was fixed irrespective of the kinds of the land. 'I have perused the referred ruling, Hon'ble apex Court in that judgment observed in the following words:-- "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 and 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. The price of the Land acquired had to be fixed ' in accordance with the aim and rule that willing buyer was ready to pay and willing seller was prepared to receive the price so fixed for whole of the land, had to be kept in view." assessment of the potential value of acquired land at the higher rate."
' In the other case titled "Akhtar Hussain and 2 others v. Azad Govt. 2014 MLD 179, the learned apex Court observed as under:-- "The survey of the case law referred to above shows that the market value shall be assessed after analyzing all the material and evidence available on the point and determining the price which a willing purchaser will pay to a willing seller of the acquired land. The Court shall take into consideration the market value and the loss by reason of severing such land from the other land.
The best method of determination of the market price of the land under the acquisition process is to rely on the instances of sale of it near about the date of notification under Section 4(i) of the Land Acquisition Act. The next best method is to take into consideration the instances of sale of the adjacent land made shortly before and after the notification. No doubt, for determining the market value, classification or nature of the land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value may be tremendously high because of its location, neighborhood, potentiality or other benefits. For determining the market value the measure of fair compensation is the value of property in the open market. Only the past sales should not be taken "It may be observed that it is now well settled that one year's average sale price of the land in the vicinity preceding the date of notification under section 4 of the Land Acquisition Act is only one of the relevant factors for consideration in determining the market value of the land acquired but it alone cannot be adopted as the basis for into account but the value of the land with all its potentialities may also be determined by examining, (if necessary as Court witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. ". ' transaction."
' As the land in the instant case is situated on the roadside and near the populated area, therefore, it has potential value, which was not considered by the lower Courts. "
14. Under section 42/B of Azad Jammu and Kashmir Interim Constitution Act 1974, any decision of the Supreme Court to the extent that it decides the question of law, is binding upon all the other Courts of AJ&K. In a case reported as [2015 SCR 712] the Supreme Court of Azad Jammu and Kashmir fixed the compensation amount of the acquired land on the basis of Valuation Table and irrespective of kind. The relevant portion is reproduced herein below:-- "Thus, for determination of the market value of the land the valuation table issued by the District Collector under the provisions of the Stamp Act, 1899 is a relevant document, which provides the value of agricultural land measuring one marla in village Sangot as Rs,1,10,000/- and two sale deeds, Exh."PL" and "PP" also provide the similar average value. In pursuance of the valuation table issued by the District Collector and the sale-deeds registered on 6th February, 2006 and 25th June, 2005, Exh. "PL & "PP" respectively, it is concluded that the market value of the land in Village Sangot is the one which is fixed in the valuation table issued by the Collector, which comes to Rs,1,10,000/- per marlas."
So, when the Supreme Court fixed the amount of compensation irrespective of any kind in abovementioned cases, then I have no reason to fix the compensation amount kind wise, particularly, when it is admitted by the Collector-respondent in the award that the whole acquired land is valuable. Furthermore, it is not denied by the respondent that the land could be used for residential, commercial or agricultural purpose. It was not a waste land for instance, if the acquired land is sold for construction of a housing society, each plot of the land could fetch the same price in the market, so, to determine compensation kind wise will not be a fair approach. Furthermore, the evidence has been produced that acquired land could potentially be used for commercial purpose irrespective of its kind. Moreover, it has been submitted that the whole land has been acquired for the same purpose i,e, for up raising/construction of Mangla Dam, so, in the present case kinds of the land become immaterial.
15. So the land under reference could potentially be used for commercial or residential purpose.
Moreover, mostly kinds of land are either `Hael' Maira Awal or Maira Doim and kinds of land 'Maira Awal' and Hael are almost similar in potential. `Maira Awal' is used for cultivation purpose, Maira Doim and 'Hael' is also used for cultivation purpose and leveled, cultivable, useful plain tract is called as Naha Awal' and when 'Maira Awal' is fertilized with fertilizer, it becomes `Hael'. This distinction and difference 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' Maira Doim and 'Hael' does not exist because these kinds of land were classified centuries ago when there were no modern mechanical agricultural devices and chemical feritizliers, 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 these kinds are used for same purpose i,e, cultivation and easily can be fertilized with chemical fertilizer by farmers. So classification of `Hael', 'Maira Awal' and 'Maira Doim' with use of chemical fertilizer by farmers has become insignificant and meaningless, but our revenue department so far has not made efforts to declassify these kinds as one. So from this point of view fixation of the compensation amount regarding whole land under reference shall be same as the acquired agricultural land is either `Maira Awal' or 'Mel' or any other one.
16. The evidence produced by the appellants is un-rebutted. In the reported case titled Azad Govt. v. Sahibzada Raja Muhammad Hanif Khan, the apex Court held in the following words:-- ' According to the celebrated principle of law, the Courts have to decide the civil cases on the strength of the proof of the parties. If the evidence remains unrebutted, it always under the provisions of Article 118 of Qanun-e-Shahadat Order 1984 read with Order XVIII of the Civil Procedure Code, is treated as sufficient proof.
"The onus of an issue in a civil case is not permanently fixed but is constantly shifting, the moment some evidence is placed on record, this shifts the onus on the other side who would fail if he is unable to rebut."
17. In the light of aforementioned settled principle of law, when documents produced as evidence by the appellants/ petitioners are un-rebutted, particularly' Valuation Table Exh."PE" is not only unrebutted rather admitted and in my opinion the land owners are entitled to get the same market value of the acquired land which was fixed by the Collector District Mirpur even in year 2002 though for a different purpose. The Collector fixed the value of the acquired land of Village Thothal as Rs,42,000/- per marla (Rs,8,40,000/- per kanal). The land is situated in the limits of the Municipal Corporation Mirpur. It would be not possible for the appellants now to purchase one kanal land for Rs,8,40,000/- within the area of Corporation and on the strength of reasons listed above, in my view the learned lower Court has made an error while fixing amount of compensation.
' Therefore, in the light of what has been stated above, by accepting this appeal j6dgment and decree of the learned Reference Judge dated 19.12.2009 is hereby modified in terms that the market value of the acquired land under reference is fixed as Rs,8,40,000/- per kanal irrespective of its kind along with 15% compulsory acquisition charges. Thus, compensation is enhanced and the appellants are entitled to recover the amount from respondents accordingly.