MUHAMMAD SHERAZ KAYANI, J.--- The captioned appeals have been preferred against the judgment and decree passed by the learned Reference Judge Muzaffarabad dated 30.10.2015, whereby, while accepting the reference filed on behalf of the land owners, appellants/respondents herein, the compensation amount of the acquired land has been enhanced to the tune of Rs.
4,00,000/- per kanal.
2. The short summary of the facts culminating into filing of the above captioned appeals are that Govt. of Azad Jammu and Kashmir through Tourism Department, acquired a piece of land from appellants/ respondents comprising survey Nos.944, 945, 946, 951, 953 and 955 measuring 4 kanals, 4 marlas situated in village Ghan Chatter for construction of Tourist Hill Resort in lieu of compensation amount worth of Rs.1,00,000/ - per kanal along with 15% Compulsory Acquisition charges. The land owners/appellants feeling aggrieved and dissatisfied from the determination of the compensation amount went into reference before the learned Additional District Judge/Reference Judge Muzaffarabad stating therein that the acquired land situates at highway leading to Peer-Chansi. The same is used for commercial purpose and is highly valuable due to its location and environment. It has been claimed that the respondents/Collector without taking into consideration the potential and prevailing market value as well as the future possible use of the land in question arbitrarily, determined the compensation amount as Rs.1,00,000/- per kanal, whereas, the actual price of the land under reference comes to about Rs.20,00,000/- per kanal and the decree of that affect was prayed for.
3. The reference was contested by the respondents/appellants herein, by filing objections, wherein, it was stated that the respondents have not only acquired the land owned by the petitioners rather a piece of 14 kanals land has been acquired for the purpose of construction of Tourist Hill Resort. It has been stated that price of acquired land has been assessed by the District Price Assessment Advisory Committee, which, is justified and proper. It has further been stated that the land owners, with their free will and consent got awarded the land and except the present petitioners, none of the other land owner has preferred any reference, therefore, the reference be rejected.
4. The learned trial Court in light of pleadings of the parties framed as many as 4 issues and the parties were directed to lead evidence. On conclusion of the proceedings, the learned trial Court vide judgment and decree dated 30.10.2015, accepted the reference and enhanced the compensation amount from Rs.1,00,000/- per kanal to Rs.4,00,000/- per kanal along with 15% CAC.
The land owners have challenged the above judgment and decree on the ground, that the learned Court below despite having an admitted claim of the petitioners has enhanced a meager amount of compensation, which may further be enhanced as per prayer of the land owners/appellants.
5. The other appeal has been filed on behalf of the Azad Government and others, on the ground that the price of the acquired land was rightly assessed by the Collector Land Acquisition and the learned Reference Judge, illegally and arbitrarily enhanced the compensation amount, therefore, by setting aside the impugned judgment and decree, the price determined by the Collector Land Acquisition be restored.
6. Syed Mehar Ali Shah Bukhari, Advocate, the learned counsel for the land owners/ appellants, herein, submitted that the evidence produced by the appellants has not been appreciated in its true perspective, by the learned Court below and has pronounced the judgment in a telegraphic manner. The land under reference is commercial land and is being used for commercial purposes.
The learned counsel maintained that Notification under Section 4 of the Land Acquisition Act was issued on 31.07.2007, whereas, the award has been issued in 2008. Referring to Ex.PB the learned counsel maintained that the land situated in the vicinity of the disputed land has been alienated in lieu of Rs.10,00,000/- per kanal, whereas, through Exh.PC, the land has been sold in lieu of Rs.6,00,000/- per kanal. The learned counsel claimed that the initial assessment of the price of the land in question was assessed and determined by the Price Assessment Advisory Committee, whose findings have been nullified by the Superior Courts in various cases and the said committee has also been declared illegal, therefore; its findings cannot be made basis for determination or enhancement of the land in question. The learned counsel, pressed into service the point that the price of the land under reference was amply proved as Rs.20,00,000/- per kanal, before the learned Court below by adducing cogent and reliable oral and documentary evidence but the Court below did not bother to consider the evidence produced before it and enhanced a lump sum amount of compensation, without assigning any reasons, thereof, therefore, by accepting the instant appeal, the compensation of the acquired land be enhanced, as prayed by the land owners. In support of his contentions, the learned counsel referred the following case law:-
1. 1996 SCR 132,
2. 2008 SCR 505,
3. 2000 SCM R 870.
7. On the other hand, Raja Jalil Ummar, Advocate, the learned legal advisor for the Tourism Department, while controverting the stance of the land owner/appellants/respondents, herein, contended that the other land owners have accepted the enhancement ordered by the learned Reference Judge and have not filed any appeal and only the present appellants have knocked the door of justice. The land under reference is situated at a far-flung area which cannot be compared with the lands of the city or its surrounding areas. The learned counsel contended that the compensation was assessed by the Collector after due appreciation of the market value, prevailing at the relevant time and the learned Reference Judge has committed illegality and enhanced the compensation amount through the impugned judgment and decree, which is not sustainable, therefore, by accepting the appeal filed on behalf the acquiring agency/ appellant/respondents the impugned judgment and decree be set aside and the compensation determined by the Collector Land Acquisition be restored.
8. I have heard the arguments of the parties, gone through the record of the case and given my anxious thought to the controversy, involved therein.
9. It is an admitted fact that the land under reference is situated in premises of the Tourism- Department and the same has been acquired for construction of Tourist Resort, meaning thereby that it has been acquired for commercial purpose. There is a sale-deed of the same village, whereby, 10 marlas land has been alienated in consideration of Rs.5,00,000/- which comes to Rs.10,00,000/- per kanal and that transaction took place in the year, 2007, also, i.e. within period of two months later to the Notification under Section 4 of the Land Acquisition Act, which is very much relevant in the present case. Copy of the sale-deed Exh.PC has also been produced by the appellants/land owners, which has been executed on 16.08.2007, whereby one kanal land has been sold in lieu of Rs.6,00,000/- both the above documents are the best evidence to determine the market value and compensation of the acquired land. The learned Reference Judge was not justified to discard the same on flimsy grounds. Moreover, this Court could not succeed to find out the reasoning of enhancement of the compensation amount from Rs.1,00,000/- to Rs.4,00,000/- per kanal. There is no documentary or oral evidence on record, which could support the amount fixed by the learned Court below. The two sale-deeds have different prices and under law, the average of both the documents was to be fixed by the Court below, which comes to about Rs.8,00,000/- per kanal.
10. As far the contention of the learned counsel for the land owners/appellants that the claimed price was proved through oral evidence is concerned. In this regard, I have scanned the file of the trial Court, containing the statements of the PWs and have come to the conclusion that the price of the acquired land as Rs.20,00,000/ per kanal could not be proved as in support of their oral account the petitioners/land owners could not produce any documentary evidence, whereby, it could be substantiated that before acquisition/alienation of any land in the village was sold for the consideration of Rs.20,00,000/- per kanal. The other documents, whereby land measuring 9 marlas was sold for Rs.5,00,000/-, has been executed in 2009, i.e. after the award, thus, the said sale-deed was rightly discarded by the learned Court below. In such circumstances, the learned Court below has rightly discarded the oral evidence.
11. As far the objections of the acquiring agency that the land in dispute cannot be compared with the land of city is concerned, in my view, the location of the disputed land should have been compared with the land, on the basis of its use, potentiality etc. There is nothing on record which may suggest that the land sold in the area was superior to the land under reference. It is an admitted fact that the acquired land is situated at a prime location, near and adjacent to already built up rest house of the said Department, which can obviously, fetch the price manifold presently.
While determining the compensation amount future potential value and its use can also be taken into consideration. There is a plethora of judgments on the point. Reliance can be placed upon the following precedent case law:--
1. 1996 SCR 132, 2. 2013 SCR 1224, 3. 2010 SCR 47 and 4. 1999 SCM R 1647.
12.The word 'market value' under law is meant for a price of the land to be acquired, that can be fixed by a willing buyer and is D acceptable by a willing purchaser. The proposition has been resolved by the apex Court in case reported as 2013 SCR 1224. In para 6 of the judgment, it has been observed as under:- "6. Before proceeding further it may be observed that basic principle laid down by the apex Court of Pakistan and the Superior Courts 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 assessed in accordance with the aim and rule that willing buyer was ready to pay and willing seller was prepared to receive the price fixed for whole of the land, had to be kept in view. In this regard guidelines can be taken from a case titled Ch. Salam Din v. Azad Government of the State of Jammu and Kashmir through its Chief Secretary Muzaffarabad and (4) others, 2001 M LD 204."
13. The Supreme Court of Pakistan in case titled 'Murad Khan through his widow and 13 others v.
Land Acquisition Collector Peshawar and another', [1999 SCM R 1647] has laid down some golden guidelines in respect of the controversy in hand. Relevant portion of the report is reproduced, herein below: "The following matters are to be taken into consideration in determination of the amount of compensation:
(i) .............................
(ii) ...............................
(iii) ...........................
(iv) ....................
(v) ...............................
(vi) ..........................
(vii) .................................
(viii) ...........................
(ix) ............................
(x) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the 'past sales' should not be taken 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 of other persons who are likely to know the price that the property in question is likely to fetch in the open market."
14.In light of the above guidelines of the Hon'ble apex Court of Pakistan, as well as the dictum of the Supreme Court of AJ&K, laid down in various cases, this Court is of the view that the compensation of the land under reference should have been fixed according to the prevailing average price of the village, which counts to Rs.8,00,000/- per kanal.
15. The nutshell of the above discussion is that the appeal filed on behalf of the land owners/appellants is accepted and the judgment and decree under challenge passed by the learned Additional District/ Reference Judge, Muzaffarabad dated 30.10.2015 stands modified in terms that the land owners/appellant/respondents, herein are entitled to receive the compensation of the land under Reference @ Rs.8,00,000/- per kanal along with 15% CAC. The respondents shall manage payment the remaining compensation after rendition of account and deduction of the amount, paid earlier. The needful shall be done within a period of four months, positively, provided this judgment is not appealed against.
16. Now remains Appeal No.15/2016, filed on behalf of the Azad Government/acquiring agency. In light of the observations made in the supra paras. this appeal does not have any substance and fails to succeed, hence, stands dismissed.