M. TABASSUM AFTAB ALVI, C.J.--- The captioned writ petition has been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby, writ in the nature of mandamus is solicited against respondents regarding payment of financial loss of 15 years amounting to Rs,7,95,45,000/- and 09 months amounting to Rs,36,45,000/- to petitioners of disputed Water Mills. A further direction is also solicited regarding consideration of new commercial value of the aforesaid Water Mills.
2. The precise facts of the case are that petitioners are inhabitants of village Shorran, Tehsil and District Muzaffarabad, who claimed as owners khewat-dars in the said village. It is stated that two Water Mills (Ghrats) were under the ownership of petitioners upon Survey No,51 situated in village Shoran, since the time of joint Kashmir Dogra Raj and the same were situated at a very valuable central point of the vicinity i,e, Ghari Habib-Ullah, Brarkot, Shoran and more than 50 villages of huge population were getting their corn, wheat and peppers used to be grinded from the aforesaid Water Mills. The Hydro Electric Project, called as Patriend Hydropower Project Muzaffarabad, acquired land across the Kunhar River Naluchi Shoran and surroundings areas. It is further claimed that respondents acquired two Water Mills of petitioners after paying Rs,2,21,039/- as compensation without paying the amount of structure and financial loss. It is further alleged that the said Water Mills remained closed for the period of 09 months due to very slow process of the award, which is proved through script dated 03.06.2013. It is further alleged that petitioners are entitled to get the financial loss amounting to Rs,7,95,45,000/- of '15 years, and Rs,36,45,000/- of 09 months, as Water Mills remained closed from 08.03.2011 to 04.11.2011, however, respondents failed to do the needful, hence, the instant constitution petition.
3. On pre-admission notice, respondent No,3, has filed parawise comments, wherein, it is stated that petitioners have got no locus standi to file the instant writ petition. It is claimed that petitioners .have no cause of action against respondents, hence, writ petition is liable to be dismissed in limine. It is further stated that Azad Govt. had acquired the land for construction of Patriend Hydro Power Project Muzaffarabad, through award No,20/11 on 04.11.2011, as per Land Acquisition Act, hence, writ petition is not maintainable. It is further alleged that Collector Land Acquisition, solicited objections from all the owners of land at the time of award, however, no one claimed financial loss of the disputed Water Mills, which were acquired by paying compensation amount, hence, submitted for dismissal of writ petition in limine.
4. Mr. Jahandad Khan Mughal, the learned counsel for petitioners strenuously argued that two Water Mills were under the ownership of petitioners since the time of joint Kashmir Dogra Raj, at a very valuable central point of Ghari Habib-Ullah, Brarkot, Shoran, which had commercial value due to situated at road side. He maintained that Hydro Electric Project called as Patrean Project Muzaffarabad, acquired two Water Mills after paying Rs,2,21,039/- as compensation, however, without paying 15 years financial loss. He further argued that the said Water Mills remained closed for the period of 09 months due to very slow process of the award which fact is proved through script dated 03.06.2013, hence, petitioners were entitled to Rs,7,95,45,000/- of 15 years financial loss and Rs, 36,45,000/- as loss of 09 months closed period of water mills, therefore, craved for admission of writ petition.
5. Mr. Muhammad Noorullah Qureshi, the learned counsel for contesting respondents, while controverting arguments of the learned counsel for petitioners submitted that petitioners have no locus standi to file the instant writ petition. He further argued that Azad Govt. had awarded the land along with disputed water mills for construction of Patriend Hydro Power Project Muzaffarabad, through award No,20/11 on 04.11.2011, according to Land Acquisition Act, 1894, hence, writ petition against the said award is not maintainable. He emphasized that petitioners filed writ petition at wrong forum, as if they were aggrieved from the aforesaid award, a remedy of reference was available to them, therefore, craved for dismissal of writ petition in limine.
6. I have perused the contents of writ petition and examined the appended documents made available with utmost care.
7. A contemplate perusal of record reveals that two Water Mills of petitioners were acquired by respondents for Hydro Electric Power Project called as Patriend Hydropower Project Muzaffarabad, vide award No,20/11 dated 04.11.2011. Admittedly compensation of Rs,2,21,039/- of the aforesaid Water Mills was paid to petitioners. The learned counsel for petitioners admitted at Bar that land in question was awarded and compensation of the land and Water Mills was also paid to his clients, however, he contended that petitioners were also entitled to financial loss A of 15 years amounting to Rs,7,95,45,000/- and 09 months of slow process of award in question amounting to Rs,36,45,000/-. I am of the considered view that in case of any grievance of petitioners against the aforesaid award, they could prefer reference application before the concerned Reference Court as per section 18 read with section 23 of the Land Acquisition Act, 1894, hence, their writ petition is hit by section 44(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. An identical point came under consideration before the Apex Court in case titled Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others [PLD 1996 SC 246]. At page 249 of the report, it was opined as under:- "It is also noteworthy what the jurisdiction conferred on the High Court under Articles 199 and 203 of the Constitution is of extraordinary nature and is, therefore, to be exercised sparingly. The High Court has to be specially cautious in exercising its Constitutional Jurisdiction when other adequate remedy is available to the party invoking the jurisdiction. Similar observations were made by the Peshawar Bench of the erstwhile High Court of West Pakistan in the case of Fazal Din alias Mina etc. cited by the learned counsel for the petitioner, while deciding a writ petition under Article 98 of the Constitution of 1962, the provisions whereof were somewhat similar to those of Article 199 of the present Constitution of 1973. The observations in point 'read as follows:- The basic principle, however, to be kept in view by the Court should be that the power under Article 98, where the alternative remedy is not exhausted, is exercised sparingly with caution and circumspection; and ordinarily only in those cases where grave injustice may otherwise ensue. "
The same proposition came under consideration before the Lahore High Court, Lahore, in case titled "Subah Sadiq and others v. Secretary and others", (2011 YLR 2500]. At page 2501 of the report, it was held as under:--- "But thereafter, vide order dated 21.03.2006, the EDO (R), Attock withdrew the earlier letter. Record further reveals that award has already been announced on 08.09.2005. The majority of owners whose land had been acquired have received compensation but the petitioners have not availed the proper remedy in shape of reference under section 18 of Land Acquisition Act, 1894, and therefore, the award announced on 08.09.2005, has attained finality which could not be reconsidered/ amended either by the respondent or by invoking Constitutional jurisdiction of this Court."
The similar view was expressed by the Lahore High Court, Lahore, in case titled "Messrs Muhammad All and brothers v. Director General, L.D.A. and 3 others" [2005 M LD 768], wherein, at page 773 of the report, it was observed as follows:- "It is settled principle of law that when a thing is to be done in a particular manner, it must be done in that particular manner and not otherwise, as per principle land down by the Hon'ble Supreme Court in "Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others" (PLD 1971 SC 61). It is also admitted fact that the petitioners have received a compensation and did not bring on record any document to show that the petitioners had received the compensation under protest. Mere filing an application after receiving the compensation does not come under the phrase under protest as per law land down by the Hon'ble Supreme Court in Ghulam Muhammad's case (PLD 1967 SC 191). The petitioners have alternative remedy to file a reference under section 18 of the Land Acquisition Act, 1894, before a competent forum/competent Court, therefore, constitutional petition is not maintainable as per law laid down by the Hon'ble Supreme Court in Ch. Muhammad Ismail's case (PLD 1996 SC 246)."
8. Therefore, as per my humble view, in case of any grievance against the impugned award No,20/2011, dated 04.11.2011, petitioners could prefer reference before the concerned Court, hence, due to alternate and efficacious remedy their writ petition is hit by subsection (2) of Section 44 of the Interim Constitution Act, 1974, which is accordingly not maintainable. Even otherwise the learned counsel for petitioners failed to cite any law postulates 15 years financial loss and 09 months slow process loss of mills in question, which could be directed to be paid to petitioners.
9. The crux of above discussion is that admission of writ petition will be a futile exercise to create falls hopes, hence, finding no substance, the same is hereby dismissed in limine.