MOHAMMAD SHERAZ KIANI, J. --- The captioned appeals have been directed against the judgments and decrees passed by the learned Reference Judge Mangla Dam Raising" Project Mirpur, dated 23.01.2012, whereby the Court below while accepting the reference of the appellants enhanced the compensation of the awarded houses of the appellants bearing code Nos. D-41 15-A, D-41 16-A, D-3922, D-41 16-B, & D-41 15-B, in sum of Rs.
1,13,479/-, Rs. 1,34,870/-, Rs. 13,67,621/-, Rs. 1,27,715/- and Rs. 1,66,645/- respectively alongwith 15% CAC, but not as prayed by the appellants.
2. Brief facts forming the background of the instant appeal are that respondents acquired the houses of appellants, herein, situated in Mozia Raypur , Tehsil Dudyal, District Mirpur , for upraising of Mangla Dam Raising Project Mirpur , vide award No. 104/2010, issued on 16.03.2010, whereby , the compensation of the houses of the appellants bearing code Nos. D-41 15-A, D-41 16-A, D-3922. D-41 16-B, & D-41 15- B, was fixed as Rs. 7,56,526/-, Rs.
8,99,130/-, Rs. 91,17,471/-, R. 8.51,431/- and Rs. 11,09,700/-. 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 houses on 07.08.2010. It is stated in the reference application that the Collector Land Acquisition determined less amount of compensation of the awarded houses, whereas, the market prices of the aforesaid houses were Rs. 25,00,000/-, Rs. 40,00,0 00/-, Rs. 2,00,00,000/- Rs. 25,00,000/- and Rs. 35,00,000/-respectively . It has further been alleged that the awarded houses were constructed by the appellants with superior kind of material, were furnished and all the facilities were available therein, hence, a prayer was made to determine the compensation of the houses as per prayer made in the application.
3. On filing of the reference, respondents were summoned and respondents No. 1 to 3, therein, filed written statement, whereby , the claim of the petitioners were refuted in tow and they requested for dismissal of the reference application. However , respondent No. 4 despite service did not appear before the Court, therefore, he was proceeded ex porte.
4. The learned Reference Judge in the light of the pleadings of the parties framed as many as seven issues and directed the parties to lead their evidence. On conclusion of the proceedings, the learned Reference Judge, Mirpur , vide judgment and decree dated 23.01.2 012, accepted the reference partially and enhanced the compensation amount of the awarded houses of the appellants bearing code Nos. D-41 15-A, D-41 16-A, D- 3922, D-41 16-B, & D- 4115-B, in sum of Rs. 1,13.479/-, Rs. 1,34,870/-, Rs. 13,67,621/-, .Rs. 1,27,715/- and Rs. 1,66,645/-respectively alongwith 15% CAC. Feeling dissatisfied from the said judgment and decree, petitioners/appellants approached before this Court for further enhancement.
5. Mr. Arshad Mehmood Malik, the learned counsel for the appellants, vehemently contended that the acquired houses have been constructed with the superior kind of material and were well furnished but their compensation was not determined as prayed for in the reference application. He further contended that it was enjoined upon the Collector Land Acquisition to determine the compensation of the awarded houses while keeping in view the present hike in the prices of building materials and after making the spot inspection but he relied blindly on BRCV after getting permission from WAPDA by violat ing the Rule 10(3) of the Land Acquisition Rules. He next contended that the awarded houses were the only residential unit/property of the appellants and after the award, the appellants have completely been deprived from their houses. The learned counsel further maintained that before the Court below , the appellants have sufficiently proved their case by producing cogent and reliable evidence but the learned Reference Judge without any justification ignored the assessments made by the private expert, Exh. PA to Exh.
PA/4 and has not appreciated the evidence as required by law. In support of his version, the learned counsel referred to and relied upon the following case-laws:--- 2017 SCR 893; 2017 SCR 915; 2013 SCR 1224.
6. On the other hand, Liaquat Ali Chaudhary , Advocate for respondents, while repudiating the arguments of the appellants contended that the compensation was assessed in accordance with law after detailed survey of evidence and market value. The learned counsel contended that the compensation was fixed by the Collector after preparation of the Building Replacement Cost Valuation (BRCV) prepared by a joint team of expert engineers: He argued that the estimate 'prepared by a private expert cannot be given preference over BRCV . In support of his version he referred the following judgments:---
(1) Mohammad Shaban Boston v . Collector Land Acquisition & others" decided by this Court on 21.09.2016;
(2) Manzoor Hussain & others v. Chief Engineer/Project Director Mangla Dam Raising Project Mirpur & others" decided on 25.01.2017;
(3) "Asad Ali v. Collector & others" decided on 03.10.2017.
(4) [2017 SCR 524].
7. I have heard the learned counsel for the parties and gone through the record of the case.
8. The captioned appeals have been filed on the ground that the respondents acquired the houses of appellants, herein, situated in Mozia Raypur , Tehsil Dudyal, District Mirpur , for upraising the Mangla Dam Raising Project Mirpur , vide award No. 104/2010, issued on 16.03.2010, whereby , the compensation of the houses of the appellants bearing code Nos. D-41 15-A, D-41 16-A, D-3922, D-41 16-B, & D-41 15- B, was fixed as Rs. 7,56,526/-, Rs. 8,99,130/-, Rs. 91,17,471/-, Rs. 8,51,431/- and Rs. 11,09,700/-, and after filing the reference before the learned Reference Judge. the compensation of the awarded houses bearing code Nos. D-41 15-A, D-41 16-A, D-3922, D- 4116-B, & D-41 15- B, was enhanced by Rs. 1,13,479/-, Rs. 1,34,870/-, Rs. 13,67,621/-, Rs. 1,27,715/- and Rs.
1,66,645/- respectively alongwith 15%. CAC, whereas, in the reference application the appellants, herein, prayed that the market prices of the aforesaid houses were Rs. 25,00,000/-, Rs. 40,00,000/-, Rs. 2,00,00,000/- Rs.
25,00,000/- and Rs. 35,00,000/-respectively .
9. In support of their version the appellants produced documentary evidence Exh.P A, Exh. PA/1, Exh. PA/2, Exh.
PA/3, Exh. PA/4, a map of house of Pervaiz lqbal, Exh. PB, and these all documents (estimates and maps) have been prepared and signed by one Mohammad Ashraf, contractor . In support of the estimates prepared by him, Mohammad Ashraf appeared before the Court and stated that he being a building contractor/expert surveyed and inspected the houses of the appellants and prepared the estimates and maps as Exh.P A to PA/4, and all these documents have rightly been prepared and signed by him. Tariq Mehmood also appeared as PW and according to his statement the houses of the appellants were situated in Mozia Raypur and all the facilities like roads, telephone etc. were available there but the Collector Land Acquisition determined the compensation of the houses by keeping aside their market price. Mohammad Sadiq also made the similar statement. Ashraf Hussain also stated that the houses of the appellants wereconstructed by using superior kind of material but the land owners were not compensated as per prevailing market value. Besides these witnesses, appellants/house owners, Pervaiz lqbal, Mohammad Zahid, Mohammad Sabir , Mohammad Zabir , and Mohammad Fazal, also appeared into the witness- box and supported their claims made in the reference applications.
10. I have particularly examined the estimate of the houses prepared by one Mohammad Ashraf, Builder/Private Contractor , from Exh. PA to PA/4 and according to these documents following valuations of the acquired houses were estimated:---
(I) According to Exh. PA, the house bearin g code No. D-41 15-A comprising covered area 1331 Sq.ft. and its price is estimated as Rs. 14,64,135/-.
(ii) According to Exh. PA/1, the house bearing code No. D-41 16-B, comprising covered area 1247 Sq.ft. is shown of the value of Rs. 16,22.215/-.
(iii) Exh. PA/2, regarding the house bearing code No. D-41 16-A, comprising covered area 1378 Sq.ft. mentions its market value as Rs. 24,01,598/-.
(iv) Similarly Exh. PA/3, relating to the house bearing code No. D-41 15-B, comprising covered area 1574 Sq.ft. estimates its market price as Rs. 18,1 1,489/-.
(v) According to Exh. PA/4, the house bearing code No. D- 3922, comprising covered area 10456 Sq.ft. is estimated with the value of Rs. 1,45,01,279/-.
In support of the above documents, author of the documents Mohammad Ashraf recorded his statement and no suggestion was put to this witness that the market value of the acquired houses was not as estimated by him. This evidence remains also un-rebutted. It is settled principle of law that any portion of the statement if not challenged in cross-examination, that portion shall be treated as admitted one. There are plethora of judgments on this point, however , for the sake of brevity relevant portion of one of them is referred herein. In the case titled "Khan Mohammad Badar & 6 others v. Mst. Roshni & 43 others" [2008 SCR 46], wherein , it has been held by the Hon'ble Supreme Court of Azad Jammu & Kashmir as under:-- "Both the aforesaid witnesses deposed that Wazir Mohammad was not capable of giving evidence before the Court. As these portions of the statements were not challenged in the cross-examination, these shall be deemed to have been admitted. It is well-settled principle of law that where a potion of statem ent of a particular witness is not challenged during the cross-examination, then that shall be deemed to have been admitted by the other party ."
Mere mentioning of value in the BRCV , although has presumption of correctness but it does not mean that this presumption cannot be rebutted by any other convincing and cogent evidence particularly by the opinion of expert who also made estimate after detailed survey . So, I have no reason to disbelieve or discard this solid evidence produced by the appellants/house owners. Although in the referred cases the preference was given to BRVC but the principles regarding the appraisal of evidence demand that every piece of evidence should be appreciated in the light of peculiar circumstances of that case. Nowhere, it is held that BRVC is a sacrosanct document and conclusive proof of the value of a building. If it is proved that any estimate prepared by any person is not according to the real market value, quality and quantity of the material used in the relevant building, the Court cannot give such document a status of untouchability . Section 23 of the Land Acquisition Act, 1894 speaks of real market value and the compensation must be according to the actual market value. The Court below has not given convincing reason to discard this piece of evidence. It is established principle of law that cases should be decided on the basis of evidence not on the whims and wishes of a Judge arbitrarily . The enhancement made by the Court below in the compensation amount seems to be arbitrary and not according to the market value proved through the above- mentioned evidence.
11. There is another aspect of the case that BRVC by official engineers were prepa red in year 2007 and the award was issued on 16.03.2010. According to the agreement signed by the WAPDA, under clause 3.3 of the agreement for Raising of the Mangla Dam signed by the respondent WAPDA, it is stipulated that the replacement cost (cost of new house) shall be given to the house owners. So, it is held that the owners of the houses/appellants are entitled to the cost @ rates which were prevalent in the market at the time of disbursement. It is pertinent to mention here that a booklet regarding Mangla Dam Raising Project with the foreword signed by the then Federal Minister of Pakistan for Water & Power/Chairman implementation committee, was issued by the concerned authorities. It was made clear that the compensation of the houses shall be given at the rate of the cost to be incurred on the construction of new houses (not as it was of the old acquired house). The relev ant portion from the booklet is reproduced herein below:--- "The owners will be paid replacement cost of the house plus additional 10% replacement cost means cost of the construction of new house with the same covered area and specification."
12. So, according to the preponderance of evidence, the market value of the acqu ired houses, in my view, was as assessed by the building contractor/technical expert in Exh. PA to Exh. PA/4. It clearly indicates that the assessment regarding the value of the acquired houses made by the technical expert in Exh. PA to Exh. PA/4, in year 2010, was accurate and according to the then prevailing rites of the building materials. These documents have not been shattered in cross-examination or through any other evidence in rebutta l. Under the law, it was for the Collector to make satisfaction of BRVC in light of the real situation which has not been done by him. The Collector blindly relied upon BR VC, although it was prepared three years before the issuance of award.
13. In the light of general principle laid down by the superior Courts of the country while interpreting Section 23 of the Land Acquisition Act for determining the compensation amount of the acquired land, the land owners are entitled for maximum value and the Courts should be liberal and generous and the provision should be construed accordingly as in case reported as 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. Now-a-days, the prices of everything are going upward and it is very difficult for a common man to purchase the land or house and if the affectees are not properly compensated then they could neither purchase the land nor the house could have been constructed. In the agreement, the respondents with a view to accommodate the affectees of Mangla Dam, deliberately stipulated that they will be compensated in such a way that the cost for their replacement shall be given to them. The very words "The Building Replacement Cost Valuation" used for the estimates of the acquired buildings (hous es and other built up structures) itself reflects the policy of the acquiring authorities, that it was meant for the purpose of replacement of the affectees in such a manner to enable them for reconstruction of their houses at new places. It was more then the market value of that time. The prices of building material are increasing day by day and the labour rates are also high due to hike in prices of everything, so, in. my opinion, the appellants should be compen sated as per rates of period during which their houses were awarded and initial disbursement was made. In my considered view, this assessment has been made while keeping in view of the overall facts and factors. So, the value determined by the Contractor/expert is just, proper and appropriate, hence, the appellants are entitled to get the price of their houses mentioned hereinabove.
In the light of what has been stated above by accepting the appeals, the impugned judgments and decrees of the learned Reference Judge dated 23.01.2012. are modified and the compensation of the houses under reference is fixed as under:---
(i) The house bearing code No. D-41 15-A, comprising covered area 1331 Sq. ft., Rs. 14,64,135/-
(ii) The house bearing code No. D-41 16-B, comprising covered area 1247 Sq. ft. is Rs. 16,22,215/-.
(iii) The house bearing code No. D-41 16-A, comprising covered area 1378 Sq. ft. as Rs. 24,01,598/-.
(iv) The house bearing code No. D-41 15-B, comprising covered area 1574 Sq. ft. its compensation is determined as Rs. 18,1 1,489/-.
(v) The house bearing code No. D-3922, comprising covered area 10456 Sq. ft. its market price is fixed as Rs.
1,45,01,279/-.
The appellant are entitled to recover the compensation amount from the respondents accordingly .