GHULAM MUST AFA MUGHAL, J.---The titled appeals have been directed against the judgment and decree dated 22.03.2018 passed by the Azad Jammu and Kashmir High Court in Civil Appeal No,845 of 2009. As both the appeals raise common question of law and facts, hence, were heard together and are decided as such.
2. The precise facts forming the background of the captioned appeals are that vide award No,81/2007, dated 17.05.2007, the Collector Land Acquisition Mangla Dam Raising Project, awarded 13 kanal, 10 marla and 4 sarsai land, comprising survey Nos,94 and 96, from Village Sangot, Tehsil and District Mirpur . The Collector Land Acquisition determined the compensation of the land to the tune of Rs,5,00,000/- per kanal along with 15% Compulsory Acquisition Charges. The appellants, herein, felt aggrieved from the determination of the compensation by the Collector and filed a reference application before the learned Reference Judge Mangla Dam Raising Project Mirpur on 04.12.2008. In the reference applications filed by the landowners it was claimed by them that the compensation of the acquired land has arbitrarily been determined, whereas, fact of the matter is that the market value of the land is not less than 50,00,000/- rupees per kanal. It was stated that as the land is situated within the municipal limits, therefore, the determination of the compensation without considering its commercial nature and potential value is illegal and violative of the fundamental rights of the applicants. It was also stated that the compensation has been determined even less than the value notified by the Collector vide notification dated 31.12.2002 in which the value of the land of mera awal kind was determined as 1,10,000/- per marla and value of commercial land was fixed as 85,000/- per marla. It was also claimed that the Colle ctor has himself admitted in the reference proceedings that similar land was acquired for 60,40,000/- per kanal but for determination of compensation of the land in question this important aspect has not been considered by the Collector . It was further stated that in the acquired land all the amenities of life were available but this has also not been considered by the Collector while assessing the compensation. It was prayed that the landowners may be awarded the compensation to the tune of Rs,50,00,000/- per kanal besides 15% Compulsory Acquisition Charges. The reference was contested by the other side by filing writte n statement, wherein, it was pleaded that the reference is time barred and is also liable to be dismissed in view of section 25(2) of the Land Acquisition Act. It was also pleaded that it is incorrect that the market value of the land is more than 50,00,000/- per kanal. The learned trial Court framed issues in light of the respective pleadings of the parties and asked them to lead evidence pro and contra. At the conclusion of the proceedings vide judgment and decree dated 30.09.2009, the learned Reference Judge partially accepted the reference to the extent of share of Muhammad Inayat, petitioner No,1, therein, falling in khewat Nos,94 and 96 and enhanced the compensation to the tune of 600,000/- per kanal besides 15% Compulsory Acquisition Charges.
The reference to the extent of other petitioners was dismissed on the ground of limitation. Feeling aggrieved from the judgment passed by the learned Reference Judge dated 30.09.2009, the landowners filed an appeal before the Azad Jammu and Kashmir High Court on 05.12.2009 which was accepted vide judgment and decree dated 23.01.2017 and the compensation of the land was further enhanced to the tune of Rs,22,00,000/- per kanal besides 15% Compulsory Acquisition Charges. The judgment and decree dated 23.01.2017 recorded by the learned High Court was challenged by WAPDA through appeal No,124/2017 before this Court which was accepted vide judgment dated 26.02.2018 and the learned High Court was directed to decide the case afresh after hearing the parties on the basis of available evidence. The learned High Court again decided the case keeping in view the direction issued by this Court and through the impugned judgment and decree dated 22.03.2018 has enhanced the compensation to the tune of Rs,8,50,000/- per kanal besides 15% Compulsory Acquisition Charges.
3. Ch. Munsif Dad, the learned Advocate appearing for WAPDA and others argued with vehemence that the Collector after visiting the spot has reasonably determined the compensation of the acquired land keeping in view its potential and commercial value and the available evidence, therefore, the enhancement made by the learned Reference Judge is not justified. He further argued that he learned High Court, has further enhanced the compensation without any tangible evidence, hence, the impugned judgment is illegal, arbitrary and is liable to be reversed. The learned Advocate further argued that the respondents appeared in person in response to the notice issued to them under sections 9 and 10 of the Land Acquisition Act, and requested the Collector to withhold the compensation till the matter is decided between co-sharers and other claimants. The learned Advocate further argued that the landowners did not claim enhancement in the amount assessed by the Collector on the basis of market value, therefore, they were not entitled to file reference in view of section 25(2) of the Land Acquisition Act.
The learned Advocate further argued that this point was taken before the learned Reference Judge and the High Court but the same has not been considered at all by the Courts below . In support of his submissions, the learned Advocate placed reliance on a case reported as Malik Mumtaz Khan v. Water and Power Development Authority , Pakistan through Chairman WAPDA Lahore and S others 2011 CLC 1586 and two unreported judgments delivered in the cases titled Muhammad Yousaf v. WAPDA and others (Civil Appeal No,11/2018, decided on 20.04.2018) and Muhammad Khan v . Azad Govt. and others (Civil Appeal No,97/2013, decided on 30.01 2015).
4. Conversely , Mr. Arshad Mehmood Mallick, the learned Advocate appearing for Fehmida Begum and others, argued that the compensation has not been determined according to its commerc ial and potential value because the same is situated within the municipal limits. The learned Advocate further argued that the compensation has not been determined according to the award returned earlier by the Collector in 2001 in which the compensation of the same kind of the land was determined as Rs,6,00,000/- per kanal. The learned Advocate further argued that as no notice was issued to the landowners under sections 9, 10 and 12 of the Land Acquisition Act, therefore, there was no occasion for them to claim any compensation and the restriction placed by section 25(2) of the Land Acquisition Act is also not attracted in this case. The learned Advocate further argued that the learned High Court has enhanced a meagre amount in the compensation illegally , hence, the impugned judgment may be set aside and the compensation of the acquired land may be enhanced keeping in view the evidence brought on the record.
5. We have heard the learned Advocates for the parties and gone through the record of the case. Firstly , we would like to take-up the objection raised by Ch. Munsif Dad, Advocate, that Malik Muhammad Inayat, the predecessor-in- interest of the appellants, herein/landowners, has not claimed any compensation in pursuance of the notice issued to them under sections 9 and 10 of the Land Acquisition Act, therefore, the appe llants, herein, are not entitled to claim enhancement in the compensation assessed by the Collector . In rebuttal, Mr. Arshad Mehmood Mallick, the learned Advocate for the landowners has submitted that no notice was issued to the landowners under sections 9 and 10 of the Land Acquisition Act. We are afraid to accept this contention of Mr. Arshad Mehmood Mallick, Advocate, because the same is against the record. The Collector has categorically mentioned in the award that the landowners appeared before him in pursuance of the notification issued under sections 9 and 10 of the Land Acquisition Act and have submitted objections except Malik Muhammad Inayat. A perusal of the record reveals that the notices under sections 9 and 10 were issued to the landowners and the date for objections was fixed by the Collector as 14.05.2007. It also reveals from the record that Malik Muhammad Inayat appeared before the Collector and did not claim any enhancement in the compensation or objected to the compensation determined by the collector rather he only submitted that in some number khasras other co-sharers have been included, therefore, till the matter is decided between them, the payment of the compensation may be deferred. The Collector agreed to the submission and deferred the disbursement of the compensation. In this view of the matter , as no claim regarding the enhancement in the compensation on the basis of market value was made by Malik Inayat before the Collector , therefore, enhancement in the compensation that has been assessed by the Collector , cannot legally be made by the learned Reference Judge as well as the High Court as is provided under Section 25(2) of the Land Acquisition Act, which reads as under:- "25. Rules as to amend of compensation.--
(1) --------------------------------------------
(2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amou nt awarded by the Court shall in no case exceed the amount awarded by the Collector .
(3) ------------------- A perusal of the above reproduced provision of law would show that the lando wner , who has not claimed the enhancement in the compensation determined by the Collector after receipt of the notice under sections 9 and 10 of the Land Acquisition Act, is not entitle d to file reference under section 18 of the said Act. Our this view finds support from the case reported as Malik Mumtaz Khan v. Water and Power Development Authority Pakistan through Chairman WAPDA, Lahore and 4 others 2011 CLC 1586 referred to by Ch. Munsif Dad Advocate, wherein, at page 1589 of the report, it was observed as under:-- "11. As observed in the earlier part of the judgment, after the receipt of notice under Section 9 of the Act, the appellant did appear before the Collector and lodged his claim for compensation. His statement along with others was recorded which he has duly signed and same has went unquestioned by the objector , therefore, the provisions of the Section 25 (1) of the Act, are fully applicable."
Similarly , in Muhammad Khan's case referred to and relied upon by the learned counsel for WAPDA and others, it was observed as under:-- "From the record, it reveals that the claim of the appellant regarding enhancement in the compensation negates his own version which was taken before the Collector Land Acquisition that the kind of land is hail, therefore, he cannot claim enhancement in the compensation amount on the fresh ground."
In Muhammad Yuousaf's case referred to and relied upon by Ch. Munisf Dad, Advocate, same view was reiterated and the findings recorded by the learned Peshawar High Court in Malik Mumtaz Khan's case were approved.
Moreover , it is admitted in para No,8 of the reference that the in pursuance of notic e under sections 9 and 10 of the Land Acquisition Act, the landowners appeared before the Collector and filed objections, therefore, the objection of Malik Muhammad Inayat taken in para 4 of the reference that no notice was issued to him is contradictory and stood negated form the pleadings. For our satisfaction we have also sent for the record from the office of the Collector . A perusal of the same reveals that no objections were filed by Malik Muhammad Inayat, however , an application was filed for postponement of the disbursement of the compensation before the Commissioner which was received in the Collector's office, on the ground that some other co-sharers are included in the Asami-war . The Collector in ground iii of para 8 of the award stated that Malik Muhammad Inayat son of Imamdin, predecessor-in- interest of the appellants, herein/landowners, also appeared and made a statement as stated above. No claim was filed by the predecessor-in-interest of the appellants, herein/landowners, for enhancement in the compensation but both the Courts below have not attended this important aspect of the case which resulted into miscarriage of justice.
The upshot of the above discussion is that the appeal filed by WAPDA is accepted and the judgments passed by the learned Reference Judge as well as the High Court dated 30.09.2009 and 22.03.2018. respectively , are hereby set aside. Resultantly , the reference filed by the landowners before the learned Reference Judge stands dismissed with no order as to costs.