Ghulam Mustafa Mughal, J. The captioned appeal by leave of the Court arises out of the judgment dated 20.3.2018 passed by the Azad Jammu and Kashmir High Court in W rit Petition No. loll of 2010.
2. The precise facts forming the background of the captioned appeal are that a piece of land comprising Khasra No. 884, situated in village Chatter Kalass was awarded for construction of Neelum Jhelum Hydryo Project vide Award No. 9/2007 dated 18.8.2007. The compensation of the acquired land was paid to the land owner namely Mohammd Naseem Khan. It was stated that on the said piece of hind, a Block Factory was established by one Raja Saeed Ahmed Khan after obtaining the land on rent from the owner . The income loss after .due inquiry was proved and award for income loss was issued in favour of Raja Saeed Ahmed Khan vide Award No. 4/2010 dated 3.5.2010 and the compensation was also paid to him accordingly . One Sardar Nasrullah Khan filed an application before the Collector that he has established a Block Factory and a Crush Plant on the said land after obtaining the same on rent through an agreement from the original owner . The Collector visited, the spot along with the concerned officers and found that the claim of Sardar Nasrullah Khan is not genuine and he rejected the application vide order dated 25.2.2010. Subsequently , Sardar Nasrullah Khan moved an applic ation before the Chief Executive, which was sent to Tehsildar for visiting the spot, who reported the matter to the Deputy Commissioner and then the Board of Revenue. The report of the Tehsildar endorsed by the Deputy Commissioner was again sent to the Collector Land Acqu isition who again rejected the same vide order dated 20.7.2010. Both the orders were challenged by Sardar Nasrullah Khan through a writ petition before the Azad Jammu and Kashmir High Court claiming therein the entitleme nt of the compensation for built-up structure/income loss. Re sought a direction to the respondents, therein, for payment of the financial loss of the projects sustained by him due to acquisition of the land. The learned High Court after necessary proceedings throu gh the impugned judgment has issued direction to the Collector Land Acquisition to issue award and pay compensation to the appellant herein.
3. Ch. Shabir Ahmed, the learned Advocate appearing for the appellant argued that land comprising Khasra No. 884 situated at Chattar Kailas, District Muzaf farabad was acquired vide Award NO 09/07 dated 18.8.2007 and the, compensation of the same was paid to Muhammad Naseem Khan. He further argued that on the said piece of land a Block Factory was also established by one Saeed Khan, who obtained the same on rent from the owner through an agreement, therefore, Award No. 4/2010 dated 3.5.2010 was issued in his favour for the loss sustained by him in his business. He argued that on the application of Sardar Nasrullah Khan regarding his claim of establishment of business over the land comprising Khas ra No. 884, the Collector made an inquiry and after visiting the spot observed that no business is proved to have been established by Respondent No. 1, herein, hence, rejected his application vide order dated 25.2.2010. The learned Advocate argued that no reference was filed by Respondent No. 1, herein, against order dated 25.2.2010 instead he moved an application to the Chief Executive for issuance of award. This application was sent to the Commissioner and further to the Tehsildar , who made a favourable reports in his favour . Ultimately , the matter again was sent to the Collector who refused to issue any award as was requested and again rejected this application vide order dated 20.7.2010. The learned Advocate argued that orders dated 25.2.2010 and 20.7.2010 were challenged by Respondent No. 1, herein, before the Azad Jammu and Kashmir High. Court by way of writ petitio n. The writ petition was contested by the respondents. He submitted that through the impugned judgment of the High Court dated 20.3.2018 the writ petition was accepted and orders dated 25.2.2010 and 20.7.2010 were set aside and a direction has been given for issuance of the award of business loss in favour of the respondent. The learned Advocate argued that an adequate efficacious remedy was available to the respondent in shape of reference under section 18 of the Land Acquisition Act or a civil suit for recovery of damages, therefore, direction cannot be given and the learned High Court was not justified to consider the question of fact without any proper evidence before him. The learned Advocate argued that direction has been given on the basis of the report of Tehsildar as well as the Commissioner , who have nothing to do with the award.
4. Conversely , Sardar Abdul Sammiee Khan, the learned Advocate appearing for the Respondents has contended that the provisions of Section 18 of the Land Acquisition Act could not be invoked, hence, the writ petition was competent before the Azad Jammu and Kashmir High Court. The learned Advocate further argued that the Collector has passed the impugned order without any sound reason and even the direction of the Chief Executive has not been complied with by him, therefore, the direction issued by the learned High Court is in accordance with law.
5. We have heard the learned Advocates representing the parties and have gone through the record of the case. A perusal of the record reveals that on the application filed by Respondent No. 1, herein, the Collector along with XEN and S.D.O. visited the land comprising Khasra No 884 and 928 situated in village Chattar Kallas. It was found that the land comprising Khasra No. 928 has already been acquired for Scout Cadet College Chattar Kallas vide Award No. 11/2005 on 1.8.2005 and the claim of Respondent No. 1, herein, was not found correct because no any iota of evidence was produced before the Collector , therefore, the application filed by Sardar Nasrullah Khan, Respondent No. 1, herein, for issuance of award was rejected, however , the counter application filed by Saeed Ahmed Khan was accepted. Thereafter , the respondent has not filed any reference as is provided under Section 18 of the Land Acquisition Act rather he filed an application before the Chief Executive of Azad Jammu and Kashmir , who issued favourable order . In pursuance of the order of the Chief Executive, the Deputy Commissioner Muzaf farabad directed the Tehsildar on 6.4.2010 for visiting the spot and report. The Tehsildar Muzaf farabad vide order dated 29.4.2010 visited the spot and observed (sic) Factory is available in No. Khasra No. 884, which was established by Sardar Nasrullah Khan, Respondent No. 1, herein. This report was sent to the Secretary Board of Revenue for presenting the same to the Chief Executive on 17.4.2010. The matter was again referred to the Collector who responded the same vide order dated 20.7.2010 that the application has been rejected vide order dated 25.2.2010, therefore, the same matter cannot be reopened. After this Respondent No. 1, herein, has filed writ petition for seeking direction and quashment of orders dated 25.2.2010 and 20.7.2010. A perusal of the record further reveals that vide Award No. 4/2010 the Collector has considered the claim of both the claimants i.e. Raja Saeed Ahmed Khan and Sardar Nasrullah Khan in Paragraph No. 2 of the award . The claim of Sardar Nasrullah Khan has been rejected, whereas, the counter claim of Raja Saeed Ahmed Khan has been accepted. As stated above, Award No. 4/2010 has been issued, therefore, after the rejections of the application through proper award no further replication could have been entertained by the Collector on the basis of the report made by the Tehsildar or by the Deputy Commissioner on the direction of the Chief Executive. The proper course for the Respondent No. 1, herein, was to file a reference under Section 30 of the Land Acquisition Act. In presence of this alternate efficacious remedy , approach to the High Court under Article 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 was not permissible. The question of facts even otherwise could not be entertained in writ jurisdiction. The view taken in Award No. 4/2010 by the Collector escaped the notice of the learned High, Court otherwise, the conclusion might have been dif ferent.
In view of the above, we are constrained to accept the appeal and set aside the impugned judgment dated 20.3.2018 passed by the learned High Court. Resultantly , the writ petition filed by Respondent No.1. herein, before the High Court stands dismissed with no order as to costs.