Raja Saeed Akram Khan, J.-- The supra appeals by leave of the Court have been addressed against the judgment and decrees of the High Court dated 30.05.2016, whereby, the appeals filed by both the parties have been dismissed.
2. The facts necessary for disposal of the instant appeals are that the house of Shams Shahzad, appellant, herein, in appeal No.159/16, situate at Moa, bearing code No.1-900A, Tehsil and District Mirpur, was acquired for Mangla Dam Raising Project. The Collector Land Acquisition determined the compensation of the acquired house as Rs.570128/-. Feeling aggrieved from the compensation amount assessed by the Collector, the appellant filed a reference application. He claimed that the Collector has not determined the compensation in the light of the market value of the built up property. He prayed that the compensation of the house may be fixed as Rs.2000/- per sq. ft. along with 15% compulsory acquisition charges. He also prayed for allotment of a plot. The learned Reference Judge after necessary proceedings vide judgment and decree dated 30.04.2014, while enhancing the compensation awarded an additional amount of Rs.1,42,532/- along with 15% compulsory charges apart from the compensation already determined. Feeling dissatisfied from the aforesaid judgment and decree, both the parties filed separate appeals before the High Court.
The owner of the house filed appeal for further enhancement in the compensation, whereas, WAPDA & others filed appeal for restoration of compensation determined by the Collector. The learned High Court after necessary proceedings dismissed both the appeals vide consolidated judgment dated 30.05.2016, hence, these appeals by leave of the Court.
3. Mr. Imtiaz Hussain Raja, Advocate, the learned counsel for the appellant, Shamas Shahzad, submitted that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. He contended that the Courts below failed to examine the record in its true perspective. He added that the Collector Land Acquisition awarded a very meager amount of compensation without considering the fact that the actual cost of construction of house comes to more than Rs.2000/ sq. ft. He added that the appellant proved his claim by producing the documentary as well as oral evidence but the same has not been taken into consideration by both the Courts below in a legal manner. While referring to different documents available on record, he submitted that all these documents have not been considered by the Courts below. He drew the attention of the Court towards the findings recorded by the Collector Land Acquisition while deciding an application filed by some owners of the built up property and submitted that the Collector himself has admitted that the construction cost at present is not less than Rs.2000/ sq. ft.
He added that the Collector Land Acquisition while deciding the said application has observed that sufficient amount is not available with him to make the payments towards compensation as per market value. He further submitted that the Collector Land Acquisition despite reaching the conclusion that construction cost is not less than Rs.2000/ sq. ft., refused to award the same to the owners. The findings of the Collector Land Acquisition that the cost of construction of his personal house came to Rs.1200 upon per sq. ft., are patently illegal and not supported by law. The learned Reference Judge also committed the same illegality while enhancing a very meager amount and the learned High Court without any justification upheld the judgment of the Reference Judge. He relied upon the case law reported as WAPDA through Chief Engineer, Mangla Dam Raising Project, WAPDA, Mangla and another v. Sardar Asif Ayub Khan and another [2013 SCR 678].
4. On the other hand, Mr. Javed Najam-us-Saqib, Advocate, the learned counsel for the appellants, WAPDA & others, also submitted that the impugned judgment is based on misinterpretation of law and the facts of the case. He contended that the learned Reference Judge while making the enhancement failed to adhere to law laid down by this Court in a number of pronouncements and the learned High Court has also not considered the illegality committed by the Reference Judge.
He submitted that the reference application was hopelessly time barred and was liable to be dismissed on the sole ground but the Courts below overlooked this aspect of the case. He further contended that the power-of-attorney executed by the appellant, Shamas Shahzad, in favour of his father, Muhammd Akram, does not empower the attorney to file the reference/appeal on his behalf. In this way, the reference application as well as appeal before the High Court was incompetently filed but this important aspect of the case escaped the notice of the Courts below.
He relied upon the cases reported as Gul Taj Begum v. Lal Hussain and another [PLD 1980 SC (AJ&K) 60], Manzoor Begum v. Haji Fazal Ellahi [2012 SCR 70] and Ch.Muhammad Hanif (deceased)
Rep. by L.Rs. v. Mst. Zainab Bibi and 12 others [2013 SCR 413].
5. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. The learned counsel for the appellants, WAPDA & others, raised an objection that the reference application was hopelessly time barred and liable to be dismissed on this sole ground. In rebuttal, the version of the landowner is that no notice under section 12(2) of the Land Acquisition Act, 1894 was served upon him and he had no knowledge about the issuance of award, therefore, from the date of knowledge the reference application is well within time. To reach the right conclusion, we have examined the record minutely. It may be observed here that according to the provisions of section 12(2) of the Land Acquisition Act, it is enjoyed upon the Collector to issue notice immediately to the landowner regarding the issuance of award. If no notice is served upon the landowner, then under section 18 of the Land Acquisition Act the limitation shall start running from the date of knowledge. In the case in hand, the appellants, WAPDA & others, failed to bring on record anything through which it could be find out that the notice was duly served upon the landowner. The record of the Collector Land Acquisition shows that the landowner has not received the compensation. It is also an admitted fact that the landowner was abroad at the time of award even he filed the reference application through attorney. All these facts lead us to the conclusion that the notice under section 12(2) of the Land Acquisition Act was not served upon the landowner and he filed the reference application immediately after getting the knowledge of the award. Thus, the reference application from the date of knowledge was well within limitation and this objection has rightly been fended off by the Courts below. This Court in a case reported as Azad Government of the State of Jammu and Kashmir and 2 others v. Muhammad Rafique Khan & 9 others [2009 SCR 320] while dealing with the proposition observed as under:- "Section 12 of the Land Acquisition Act provides that if a person is not present at the time of announcing the award a notice shall be issued to him. If no notice is issued to affected person then, how the limitation start from the date of award, the time shall start running against him from the date of knowledge."
Similarly, in a case reported as WAPDA through Chief Engineer, Mangla Dam Rasing Project, WAPDA,Mangla and another v. Sardar Asif Ayub Khan and another [2013 SCR 673] this Court held that: "8. For determining the question that on which date Sardar Asif Ayub Khan, appellant, acquired knowledge of the award, we have perused the record with utmost care. In para 6 of the reference application he has not alleged the specific date as to when he acquired knowledge of award. He has only averred that he came back from abroad only a few days ago. Along with the reference application, he appended a certified copy of award obtained by him. A perusal of the same shows that he applied for obtaining copy of award on 18th October, 2006. The copy was issued to him on the same day. The award was issued on 12th August, 2006. Assuming for the sake of arguments that he acquired knowledge of award on 18th October, 2006 and he moved application on the same day for obtaining the copy, which was issued to him on the same day and 18th October, 2006 is presumed to be the date of his knowledge, then too he was entitled to file reference within six months under section 18 of the Land Acquisition Act, 1894, up to 18th April, 2007. The reference has been filed within the period of limitation."
6. The other objection raised by the learned counsel for the appellants, WAPDA & others, that the attorney of the landowner was not empowered to file reference application as well as appeal, therefore, the same have incompetently been filed and liable to be dismissed, has also no substance. We would like to reproduce here clauses No.2 and 3 of the power-of-attorney which read as under: "(2) To assort all the essential documentary & verbal evidence from the concerted Land Revenue Department and other Offices including the Courts and to submit the same to Mangla Dam up Raising Project Authorities and to sing all the requested documents including applications, appeals or any form, under the rules.
(2) If there is any dispute regarding my entitlement in the said property, then to take all the legal & administrative action at all levels of the Govt. Offices? The concerned Courts of all levels from the lower to Supreme courts, and to pursue all matters himself or through Advocates act where ever it is required."
After going through the hereinabove reproduced clauses of the power-of-attorney, it becomes clear that the attorney was duly empowered to pursue the matter on behalf of the landowner at all the fora, hence, this objection is also hereby repelled.
7. While adverting to the real controversy involved in the matter, i.e. whether adequate compensation of built up property was awarded to the appellant/owner or not, we have gone through the record. In the reference application the claim of the appellant, herein, Shamas Shahzad, is that he is entitled to get the compensation of the house bearing code No.1-900A at the rate of Rs.2000/ sq. ft. The appellant in support of the claimed amount has heavily relied upon the 'agreement for Raising of the Mangla Dam', Exh.PE, findings recorded by the Collector Land Acquisition while deciding an application filed by some owners of the built up property for determination of the compensation of built up property according to the market value, Exh.PF and letter of the Superintending Engineer PWD Building Circle, Mirpur, Exh.PG. We have examined all these documents. It appears from the agreement, Exh.PE, executed between the Ministry of Water & Power, Government of Pakistan and the Azad Government of the State of Jammu and Kashmir that it was agreed between the Government of Pakistan and the Government of Azad Jammu and Kashmir that the WAPDA shall pay the market price (replacement cost) to the owners of the houses along with additional 10% to be given above the price. The decision made by the Collector on an application of some owners of the built up property shows that the Collector Land Acquisition wrote a letter to the Superintending Engineer PWD Building Circle, Mirpur to provide the details of cost incurred upon the construction of the Government buildings. The Superintending Engineer vide letter dated 23.04.2010, available on record as Exh.PG, apprised that the Government buildings are constructed at an average rate of Rs.2000/ sq. ft. and the Collector himself in his findings has admitted the referred cost. It will be useful to reproduce here the relevant findings of the Collector which read as under:- {{URDU TEXT}} The Collector Land Acquisition after admitting the fact that the cost of construction is not less than Rs.2,000/ sq. ft., assigned the following reasons for not awarding the compensation according to the said rates:- {{URDU TEXT}} We are afraid that the reasons assigned by the Collector Land Acquisition that sufficient amount is not available to make the payment as per market value and the cost incurred upon his personal house came to Rs.1200/ sq. ft., are not supported by law and also against the norms of justice. It may be observed here that the right to the property has been protected by the Constitution which is supreme law of the land and nobody can be deprived of his property except for payment of compensation as per value of the property. Here we would like to clarify that the Collector Land Acquisition recorded the findings (supra) on the application filed by some third persons and the appellant, herein, tendered the decision of the Collector and the letter of the Superintending Engineer in evidence. As in the relevant year the concerned department submitted the report that at present the cost incurred upon the construction is not less than Rs.2000/ sq. ft. and the Collector admitted the stance taken in the report, therefore, these documents keeping in view the controversy involved in the matter can be considered as relevant for determining the compensation. It also transpires from the record that the witnesses produced by the appellant, Shamas Shahzad fully supported his claim, whereas, in rebuttal the appellants, WAPDA & others failed to bring on record any sort of evidence to justify the compensation determined by the Collector Land Acquisition. The learned Reference Judge while making enhancement in the compensation has not properly examined the record and the learned High Court without assigning any reason upheld the judgment of the Reference Judge. In such state of affairs, the concurrent findings recorded by the Courts below, based on misreading and non-reading of the evidence, cannot be maintained. The case law referred to and relied upon by the learned counsel for the appellants, WAPDA & others having distinguishable facts and features is not applicable to the case in hand.
In the light of above discussion the appeal filed by the appellant, Shamas Shahzad, is accepted in the terms that the appellant is entitled to get the compensation of the acquired house bearing code No.1-900A, at the rate of Rs.2000/ sq. ft. along with 15% compulsory acquisition charges. The appeal of the appellants, WAPDA & others being devoid of any force is hereby dismissed. No order as to costs.