MASOOD AHMED SHEIKH, J.---Both the titled appeals arise out of one and the same judgment of the High Court dated 11.9.2014, whereby Civil Appeal No. 24/2010 filed by WAPDA has been dismissed while Civil Appeal No. 25/2010 filed by Naik Muhammad has been accepted and the compensation amount has been enhanced from Rs.1,35000/- to 3,35000/-along with 15% compulsory acquisition charges.
2. The brief facts of the case are that Naik Muhammad, appellant in Appeal No. 302/2014 filed a reference application on 22.6.2009 in the Court of District Judge, Muzaffarabad, which was later on entrusted to the Additional District Judge, Muzaffarabad with powers of the Reference Judge, whereby he challenged the validity of award No. 8/2008 dated 18.7.2008. It was alleged in the reference application that the Collector Land Acquisition. acquired building owned by the applicant-appellant, herein, existing in the land comprising Khasra No. 13 and the trees existing in the land Khasra Nos. 10 and 11 of Mozia Malsi, Tehsil and District Muzaffarabad for public purpose.
Through the said award the compensation of Ghrat (Water Mills), was assessed equal to one year income of the Ghrat and the same was ordered to be paid to the appellant, herein. He has further alleged in the reference application that the aforementioned award is in sheer violation of law, against the facts, and being against the principle of justice is not maintainable and liable to be amended. As per rule the applicant is entitled to receive the compensation amount at least, equal to 15 years income of Ghrat. Similarly, a very meager amount of compensation of trees existing in the land Khasra Nos. 10 and 11 has been assessed. The applicant was neither afforded opportunity of hearing nor he was asked for filing objections at any stage of acquisitionproceedings.
Respondent No.3, Project Director, Neelum Jhelum Hydro Electric Project, WAPDA, filed objections on the reference application, whereby he stated that the applicant has no right to file reference after acceptance of award. The applicant has not filed objections regarding the compensation amount, therefore; he is not entitled for further enhancement in compensation. In addition to that it is further averred in the objections that the compensation of Ghrat has already been assessed manifold, therefore; while accepting the objections the reference may be dismissed. The Collector Land Acquisition also filed objections, whereby he negated the version of the applicant. The Reference Judge after ' framing issues and on completion of further necessary proceedings, decided the reference application in the terms that the compensation amount has rightly been assessed and determined by the Collector Land Acquisition, however, he declared the applicant to be entitled for compensation of. Ghrat as Rs.1,68,000/- instead of Rs.1,35,000/- along with the compulsory acquisition charges through judgment dated 23.11.2009. Feeling aggrieved from the judgment of the Reference Judge, both the parties filed separate appeals in the High Court on 22.2.2010. The learned single Judge in the High Court while accepting the appeal filed by Naik Muhammad, amended the judgment of the Reference Judge and enhanced the compensation amount from Rs.1,35,000/- to 3,35,000/- along with 15 % compulsory acquisition charges , whereas, the appeal filed by the WAPDA was dismissed through the impugned judgment dated 11.9.2014. Against the judgment of the High Court, both the parties approached this Court through the instant appeals for redressal of their grievance.
3. Mr. Shabir Ahmed Chaudhry, Advocate, the counsel for WAPDA in Appeal No. 293/2014, argued that the impugned judgment of the High Court and that of the Reference Judge is against law and the facts. He stated that the land situate at Mozia Malsi Paien, Tehsil Muzaffarabad was awarded for construction of Neelum Jhelum Hydro Electric Project, Muzaffarabad. The amount of compensation for the trees and Ghrat (Water Mills) was determined by the P.W.D. officials on the letter of the Collector, whereas the income loss was determined by the Revenue Officials. The Revenue Officials and the Collector Land Acquisition determined the annual income loss to the tune of Rs. 1,35,000/-. There was no provision in the law to provide the income loss of 15 years to the effectee, respondent as is, claimed by him. The amount of compensation enhanced by the Reference Judge and further enhanced by the Judge in the High Court suffers from mis-reading and non-reading of evidence, which is required to be recalled and the amount of compensation determined by the Collector is required to be restored. The learned counsel referred to section 23 of the Land Acquisition Act, 1894, which provides the procedure for determination of the compensation amount and stated that the Collector has rightly determined the compensation in accordance with statutory provision. Particularly, clause (6) of subsection (1) of section 23 of the Land Acquisition Act, only provides the method for determination of compensation amount. He further stated that the applicant-respondent, herein, in his reference application has not provided any technical expert 'to justify the enhancement of the compensation amount determined by the ollector. The applicant-respondent has not provideld any other cogent proof to strengthen his claim. He requested that the appeal filed by WAPDA may be accepted and the compensation amount determined by the Collector in the award dated 18.7.2008 may be restored.
4. Conversely, Mr. Muhammad Yaqoob Khan Mughai, - Advocate, the learned counsel for Naik Muhammad in Appeal No. 302/2014, has vehemently argued that the land of the appellant is a precious land, which= has been acquired including trees and Ghrat for the purpose of Neelum and Jhelum Electric Project, Muzaffarabad. The Collector has not rightly determined the compensation amount in accordance with the prevailing market value. He has further stated that the applicant- appellant has been deprived of Ghrat from which he was earning his livelihood for him and his family for the last many years, therefore, the annual income of the land, Ghrat and trees has not correctly been determined by the Collector. He further argued that the Reference Judge and the learned Judge in the High Court have ignored the prevailing situation of effectee regarding his earning/income. The effectee is facing huge income loss due to this award. He has no other source of income except the Ghrat (Water Mills), therefore; the compensation amount is required to be enhanced up to Rs. 2,50,000/- per year for 15 years. The learned counsel further submitted that there was sufficient evidence produced by Naik .Muhammad, appellant before the Reference Judge but the Reference Judge has not properly read and considered the evidence produced by the appellant. He lastly requested for acceptance of appeal and dismissal of the appeal filed by the WAPDA.
5. We have heard the learned counsel for the parties and also gone through the record minutely.
The perusal of record transpires that amongst other land in Mozia Malsi Paien, Tehsil Muzaffarabad the land of Naik Muhammad bearing survey Nos. 10, 11 and 13 comprising of Ghrat and trees was also awarded by the Collector Land Acquisition through award No. 8/2008 announced on 18.7.2008.
The Collector in the award determined the compensation amount for, one year income loss of the appellant's running business of Ghrat (Water Mills) as Rs.135000/- per annum Rs.557520/- for the tress and Rs.54625/- for the structure/building of Ghrat owned by the appellant. Feeling aggrieved from the award issued by the Collector Land Acquisition, Naik Muhammad, appellant, on 27.8.2008 filed reference under section 18 of the Land Acquisition Act, 1894. The Collector referred the said reference to the District Judge, which was assigned to the Additional District Judge on 22.6.2009.
The Additional District Judge/Reference Judge after completion of legal proceedings passed the judgment and decree on 23.11.2009, through which the Reference Judge enhanced the income loss from Rs. 135000/- to Rs. 168750/-, however, the Reference Judge has agreed with compensation determined by the Collector for the land, trees and price of the Ghrat, thus, he amended just the amount of income loss assessed in the award. The learned Judge in the High Court, on appeal of Naik Muhammad, further enhanced the compensation amount of income loss from 168750/- to Rs.335000/- along with 15% compulsory acquisition charges. The appellant Naik Muhammad in his reference application averred that he has been deprived of regular income for the rest of his life due to award of Ghrat as it was his only source of income. He alleged that the very meager amount of compensation regarding the income loss has been determined by the Collector, hence, the same is required to be enhanced to the tune of Rs.250000/- per annum for the next 15 years. He further averred in the reference application that the deficient amount of compensation has been determined for structure/built up Ghrat and claimed Rs.100000/- for the same.. Thirdly, he has also claimed that the amount of compensation of trees in the land comprising survey Nos. 10 and 11 determined by the Collector is very less and he claimed the amount of compensation of trees in accordance with the prevailing rates of the trees. Respondent No.3, Project Director and respondent No.4, the Collector filed separate objections, wherein they have averred that the amount of earning , has rightly been determined keeping in view the annual income and the claim of the applicant for annual income after award is not justified. The applicant filed an application before the Collector Land Acquisition Muzaffarabad for issuance of attested copies of the award No. 34/1994 dated 15.9.1994 of the land situate Mahoter, Tehsil Hattian. This application was filed by the applicant on 23.10.2009. The said original application "Exh. "PA" was returned to the applicant with the report of subordinate staff of the Collector that the record of Award No. 34/94 was damaged in the eve of earthquake of 8th October, 2005, therefore, the attested copy of the relevant award cannot be issued as it was not available in the record. Similar application was filed by the applicant for attested copies of award No. 54/95 dated 14.9.1995 regarding the land awarded for Hydro Station, Kehel, however, this application also met the same fate as the record of the award was damaged during the earthquake of 2005. The applicant placed photocopies of the awards with the application marked as Exhs. "PA" and "PB" in the reference Court. A perusal of the said photocopies attached with Exh. "PA" and "PB" transpires that in both the awards No. 54/95 dated 14.9.1995 and 34/94 dated 15.9.94, the amount of compensation for the loss of income of Ghrat was awarded for 15 years. It is mentioned here that in both the earlier awards the compensation was granted as loss of income, but these documents do not transpire that this amount was determined in compliance of any provision of law, therefore, these photocopies of the awards cannot be taken into consideration. The applicant in support - of his application produced Said Akbar, Faqeer Ali and Muhammad Afsar as witness and he himself appeared as witness before the Reference Court.
Although the said witnesses have supported the version of the applicant, but we have to determine whether the amount of compensation for loss of income, under law, can be determined for future time comprising 15 years or not.
6. The learned counsel for the parties during the course of arguments have argued their case only to the extent of amount of loss of income, which has been determined and enhanced by the Reference Judge and the learned Judge in the High Court. The learned counsel for WAPDA stressed to argue the case before us that the compensation amount of loss of income has wrongly been enhanced by the Reference Judge as well as the Judge in the High Court, therefore, the judgment and decree of the Reference Judge and the High Court is liable to be set aside and the compensation amount determined by the Collector is required to be restored. On the other hand, the learned counsel for Naik Muhammad has pressed into service the arguments that the compensation amount of loss of income has not been properly determined by the Collector and the learned Judge in the High Court. Very meager amount for one year only has been enhanced by the learned Judge in the High Court, which needed to be determined as Rs.250000/- per years for 15 years, therefore, proposition here emerges whether the compensation amount determined by the Collector for one year regarding the loss of income of Ghrat of the applicant was correctly determined by the Collector and enhanced by the Reference Judge as well as by the High Court or it was required to be further enhanced and determined for future time for i.e. 15 years. For the purpose to reach on the conclusion based on law, we have gone through the relevant law i.e. Land Acquisition Act, 1894 and the law referred to by the learned counsel for the WAPDA reported as Azad Govt. of the State of Jammu and Kashmir and 2 others v. Muhammad Rafique Kha.: and 9 others 2009 CLC 1378, Muhammad Sharif and 7 others v. Azad Government and another 1998 CLC 2052 and law referred to by the learned counsel for Naik Muhammad i.e. sections 9 to 12 of the Canals and Drainage Act, 1873, which was adapted in the Azad Jammu and Kashmir through adaptation of Law Act, 1959. We agree with the learned counsel for WAPDA that section 23 of the Land Acquisition. Act, 1894 is relevant for determining compensation amount. For proper appreciation, section 23 of the Land Acquisition Act, 1894 is reproduced as under:-- "23. Matters to be considered in determining compensation:---(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-- firstly, ........................ secondly, ..................... thirdly, .............................. 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, if any other manner, or his earnings; fifthly, if, no 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) .............................................
' The bare reading of the above section reflects that the Collector shall have to take into consideration the damage affecting the property movable or immovable, or his earning. If in consequence of the acquisition of land, the person interested is compelled to change his residence or place of business, the reasonable expenses incidental to such change shall also be taken into consideration. The above provision of the Land Acquisition Act, provides the sole method for determination of compensation amount against the acquired property whether it is movable or immovable or earning of level hood. Under law, it has been provided that the Court shall not take into consideration any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration. For this purpose section 24 of the Land Acquisition Act, is relevant. For convenience, the same is reproduced as under:- "24. Matters to be neglected in determining compensation: But the Court shall not take into consideration--- first, ............................ secondly,.................. thirdly,.................. fourthly, any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration under Section 6, by or in consequence of the use to which it will be put; fifthly, ...................... sixthly, ..................................... seventhly, ...............................................
The said section provides that after publication of the notification under section 6 the compensation cannot be determined for damage that may be caused to the effectee in the future time. It may be observed here that if an effectee claims compensation in pursuance of notice given under section 9 from the reference Court then the amount awarded to him by the Court shall not exceed the amount so claimed by him in the application.
Section 25 is relevant for the purpose which is reproduced as under:-- "25. Rules as to amount of compensation:---(1) When the applicant had made a claim to compensation, pursuant to any notice given under Section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11.
(2) .........................
(3) .........................
The appellant Naik Muhammad in his application before the Reference Judge has claimed Rs.2,50,000/- per year for loss of his income against the compensation amount determined by the Collector, the reference Judge enhanced the compensation amount from Rs.1,35000/- to Rs.1,68,000/-. Thereafter, the learned Judge in the High Court has enhanced the amount of compensation up to Rs.3,35,000/- without considering the claim of the applicant-appellant in his application before the Reference Judge. Therefore, the order of the High Court to the extent of extra amount of enhancement Rs. 85000/-is not justified.
7. The record shows that Naik Muhammad in his reference application claimed Rs. 2,50,000/- as compensation for per annum, whereas, the learned Judge in the High Court has increased the said amount up to Rs.3,35,000/- without assigning any reason in the impugned judgment. This increased amount cannot be allowed as the applicant himself, in his application and in the statement before the Court has claimed an amount of Rs.2,50,000/-. This Court in the earlier judgment has clearly held that the compensation amount cannot be enhanced more than the amount prayed for in the reference application or proved through evidence. In an earlier judgment of this Court reported as Azad Government of the State of Jammu and Kashmir and 2 others v.
Muhammad Rafique Khan and 9 others (2009 CLC 1378), it was held as under:-- "14. The proposition came before this Court in a case titled Muhammad Sharif and 7 others v. Azad Govt. and another (1998 CLC 2052), the facts of the case are identical with the case in hand. The petitioners in that case demanded the amount of Rs.22,000/- per kanal as compensation, later on, during the proceedings in reference they- filed an application for amendment to the effect that they be allowed to demand compensation amounting to Rs.1,22,000/- per kanal. It was held at page 356 of the report as under:--
9. While going through the recorded we have found that in the application filed by Muhammad Sharif and others, the land owners, before the Collector of Land Acquisition for filing a reference before the District Judge it was stated in para 2 that they had demanded compensation at the rate of twenty two thousand rupees per kanal and had also adduced proof in support of their above- mentioned claim but the Collector wrongly fixed two thousand rupees per kanal as the rate of compensation. In the prayer clause it was specifically requestedthat compensation may be paid at the rate of twenty two thousand rupees. Howeverduring proceedings before the Court an application for amendment was moved stating that it had inadvertently been stated that compensation may be fixed at twenty two thousand rupees per kanal and that permission may be granted to substitute rupees one lac twenty, two thousand instead of rupees twenty thousand. This application was rejected by the learned District Judge on 27th of December 1988. Although it was stated in para 3 of the application filed before the Collector Land Acquisition that in the same vicinity lands situated on the roadside were being sold at rupees six thousand per marla but it was not stated that the acquired land was also on the road side. Of vital importance is the fact that the demand made in the prayer clause was that compensation be paid at the rate of twenty two thousand rupees per kanal. In light of this fact the demand subsequently raised by the appellants that the compensation may be fixed at rupees one lac twenty thousand per kanal were clearly not permissible under law. The District Judge had already fixed the amount of compensation at twenty thousand rupees per kanal to which fifteen percent compulsory acquisition charges have to be added. This amount is approximately the same as has been demanded by the land owners.
15. It is sorry state of affairs that reference was filed in year 1989 while it was decided on 20.11.2006 after a period of about seventeen years. We are aware of the fact that the prices of the land have risen manifold and these may be in million of rupees per kanal in certain places in Rawalakot.
Keeping in view the legal position strengthened by the reports referred above, the petitioners, therein, were entitled to the amount of compensation which they demanded from the Collector in the reference application initially."
Similarly, in another case titled Azad Government v. Muhammad Nazar Khan and 9 others (2009 SCR 479), it was held as under:-- "The learned judge in the High Court has fixed the price of land as Rs.1,20,000/- per kanal on the basis of his own observation, which cannot be accepted as admittedly the price is to be fixed keeping in view the evidence of the parties. It also reveals from the record that the original owner demanded Rs.1,00,000/- as price of the land, therefore, the learned Judge could not fix per kanal compensation as Rs. 1,20,000/-per kanal and the increase granted by the High Court is recalled to the extent of Rs.20,000/- per kanal." (Underlining is ours).
8. The learned counsel for Naik Muhammad has referred to statutory law particularly sections 9 to 12 of the Canals and Drainage Act, 1873, which empowers the Provincial Government to regulate the irrigation, canals, water of rivers and streams flowing in a natural channel or of any lake or other natural collection of still water. The objectives and scheme of this law is entirely different from the purpose and objectives of the Land Acquisition Act, 1894 and procedure of acquisition of land, which purely run under the Land Acquisition Act, 1894.
Thus, in view of above all, the appellant Naik Muhammad is only entitled for compensation amount to the tune of Rs.250,000/- along with 15% compulsory acquisition charges, therefore; the impugned judgment of the High Court is modified to that extent.
What has been discussed above, both the appeals are disposed of in the manner indicated above.
There is no order as to costs.