ALI BAIG, J. This civil 1st appeal is preferred by the appellant/ petitioner against the impugned judgment/decree dated 22-10-2015 passed by the District Judge/Referee Judge Ghizer in reference petition No. 03/2010-01/2015, whereby the leaned Trial Judge/Referee Judge has dismissed the reference petition of the present appellant/petitioner.
2. Succinctly facts giving rise to the filing of this civil 1st appeal are that the respondents had acquired a piece of land of the present appellant situated at Gahkuch city for construction of road from B&R PWD Office to Lalik Jan Shaheed Public School at Gahkcuh paeen and the respondent No. 2/Collector Ghizer issued/passed award No.DK 01(24) 1976-77/2010 dated 29th March 2010. The Collector Land Acquisition Ghizer/respondent No.2 assessed the compensation and fixed the compensation amount amounting to Rs.
150,000/- per kanal for cultivated land which as per averments of the petitioner was less than the prevailing market land of the area whereas the Government/Collector vide notification/letter No DK-1 (14/3300-15 dated 25th June 2008 has enhanced the compensation rates of acquired lands from 150,000/- per kanal to Rs. 350,000/- per kanal in District Head Quarter Gahkuch. The petitioner/appellant further asserted in the petition that the rates of structures, walls, gates and trees were not assessed at prevailing market rates and the rates of damaged trees/gate and building has been fixed less than the market rates.
3. Feeling aggrieved and dissatisfied from the compensation amount fixed by the collector Ghizer through the aforesaid impugned award, the petitioner has challenged the same before the Court of the learned Referee Judge/District Judge Ghizer through a reference petition under Section 18 of the Land Acquisition Act 1894 on 10-3-2010.
4. The respondents contested the reference petition by filing their joint replication in the Trial Court wherein they have raised certain legal objections and have also repudiated the averments of the reference petition. Out of divergent pleadings of parties, the learned Referee Court has framed following issues:-
1. Whether the compensation of the acquired land of petitioner was assessed less than the market value of land?
OPP
2. Whether the compensation of the trees and structures of the petitioner has assessed less than the market rate?
OPP
3. Whether the compensation of land was received by the petitioner under protest? OPP
4. Whether the petitioner is entitled to get Rs.8,00,000/- (eight lac) per kanal? OPP
5. Whether the petitioner is entitled to get compound interest on the compensation? OPP
6. Whether the respondents have acquired the land of petitioner after fulfilling the codal formalities? OPR
7. Whether the petitioner has not filed any objection in pursuant to notice under section 9 Land Acquisition Act?
OPR
8. Whether the reference is barred under section 25(2) Land Acquisition Act? OPR
9. Relief.
5. After framing of the aforesaid issues the parties were directed to produce their evidence in support of their respective claims. Accordingly the petitioner has produced four oral witnesses namely Shah Alam (P.W-1), Muhabat Amir (P.W-2), Mohammad Ibrahim (P.W-3) and Ghairat Shah (P.W-4) besides recording of his own statement in the learned Referee/Trial Court. The respondents have also produced two documents i.e. registered sale deeds Exh. p/1 and Exh. P/2 as documentary evidence.
6. The respondents have not produced any oral evidence except recording of statement of their representatives in the Trial Court. However, the respondents have produced some documents i.e. notices etc issued during acquisition proceedings of the land of the petitioner Exh R/1 to R/5.
7. On conclusion of trial the learned Trial Court vide the impugned judgment/decree dated 22-10-2015 has dismissed the reference petition of the present appellant, hence this civil 1st appeal.
8. The learned counsel appearing on behalf of the appellant contended that the impugned judgment passed by the learned Trial Court is contrary to law and facts on the record of the case, hence liable to be set aside/varied. The learned counsel for the appellant further argued that the appellant has fully proved the issues Nos. 1 to 5 by adducing reliable and cogent oral as well as documentary evidence in the Referee/Trial Court but the learned Trial Court has failed to appreciate the evidence produced by the petitioner/ appellant and has wrongly dismissed the reference petition of the petitioner. The learned counsel for the appellant further contended that the impugned judgment passed by the learned Trial Court/referee Court is ambiguous, perverse and is a result of misreading and non reading of the evidence of the parties as such impugned judgment passed by the learned trial court is not maintainable and liable to be set aside.
9. On the other hand the learned Additional Advocate General opposed the arguments advanced by the learned counsel for the appellant and supported the impugned judgment passed by the learned District/Referee Judge Ghizer by contending that since the appellant has not filed objections in response to notice issued by the respondents under . Section 9 of the Land Acquisition Act 1894 which was served upon the appellant as such the appellant/petitioner is estopped by his conduct and admission to file the reference petition under Section 18 of Land Acquisition Act 1894 against the answering respondents.
10. We have given our thoughtful considerati on to the arguments advanced by the learned counsel for the parties and with their valuable assistance, we have gone through the elevant record.
11. It is a case of the appellant that at the time of acquiring of his land for construction of road from the Office of B&R Division GB PWD Gahkuch city to Lalik Jan Shaheed Public School, the prevailing market rates of lands situated adjacent/ in the vicinity of acquired land was Rs. 600,000/- to 800,000/- per kanal and the respondents have also enhanced the compensation amount of lands situated at District Head Quarter Gahkcuh from 150,000/- per kanal to 350,000/- per kanal vide letter No. DK-1 (14)/3300-15 dated 25th June 2008, issued by the present respondent No. 2/Collector Ghizer, but the respondents have wrongly assessed and fixed the compensation amount of acquired land of the appellant/petitioner at the rate of Rs. 150,000/- per kanal vide the impugned award No. DK-1 (24)/976-77/2010 dated 29th March 2010.
12. Issues Nos. 1 to 5 were to be proved by the appellant/petitioner . In-order the prove his claim the appellant/petitioner has produced two registered sale deed Exh. P/1 and Exh. P/2. Vide Exh. P/1/sale-deed one Shah Alam son of Shah Suliman resident of Gahkuch paeen has sold out 5 maralas land situated at Gahkuch paeen at the rate of Rs. 2,00,000/-and at the rate of Rs. 8,00,000/ per kanal to one Shah Muslim son of Shah Farman on 27-3-2006. The above named seller has also appeared before the learned Trial Court as P.W-1 and has testified that he has sold out 5 marlas land to one Shah Muslim at the rate of Rs. 8,00,000/- per kanal situated adjacent to Green Palace Hotel Gahkuch through registered sale deed Exh. P/1.
13. The appellant has also produced another registered sale deed Exh P/2, whereby one Muhbat Amir son of Hajat Mir resident of Gahkuch paeen has sold one and half kanal land situated at Gahkuch paeen at the rate of Rs. 760,000/- per kanal to one Rahat on 11-5-2009. The above named seller has also appeared before the learned Referee Judge on 06-10-2015, as P.W-2 and has testified that he has sold out one and half kanal land to one person namely Rahat near Government High School Ghakuch at the rate of Rs. 760,00/-per kanal. The transaction was written in registered sale deed Exh P/2.The petitions writer namely Mohammad Ibrahim son of Umit Rasool has also appeared before the Trial Court as P.W-3 and has testified that he is petitions writer by profession and transaction between Muhabat Amir and Rahat was scribed/written by him and he is a marginal witness of sale deed Exh. P/2.
14. From perusal of aforesaid oral as well as the documentary evidence produced by the petitioner in the learned Trial/Referee Court it reveals that the appellant has proved his case/claim by adducing reliable and unimpeachable documentary as well as oral evidence in the Trial Court that at the time of acquisition of land of the present appellant the prevailing market rates of lands situated at Gahkuch City were in between 7 to 8 laces per kanal and respondents have fixed/paid less compensation amount to the appellant at the rate of Rs.
150,000/- per kanal which is quite less as compared to prevailing market rates of lands situated in the vicinity of the acquired land of the appellant/petitioner. Moreover, it is astonishing to observe that the collector Ghizer/respondent No.2 vide his letter dated 25th June, 2008 addressed to the Assistant Commissioners Gupis/Yasin and Punial/Ishkoman has increased the compensation rates from Rs. 150,000/- per kanal to Rs.
350,000/- per kanal for cultivated lands situated at Gahkuch City/DHQ Gahkuch, whereas, vide the impugned award passed on 29th March 2010, the respondents have fixed Rs. 150,000/- per kanal for cultivated land of the appellant and have paid Rs. 150,000/-per kanal to the appellant which is illegal, as the petitioner has been deprived from getting compensation of acquired land at the enhanced rate due to unknown reasons.
15. Admittedly, the acquired land of the appellant/petitioner was situated at road side and at main Gahkuch City which can be used for commercial purpose. Average value of lands situated adjacent to the land of the appellant/petitioner was almost 800,000/- per kanal at the time of acquisition of the land of the appellant as evident from Exh. P/1 and Exh. P/2 and statem ents of P.Ws 1 to 4 whereas, the Collector Ghizer has paid/fixed less compensation amount to the appellant/petitioner as compared to prevailing market rates.
16. It is well settled principle of law that while determing the value of compensation, the market value of lands at the time of a acquisition and it is potentiality have to be kept in consideration. The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale reasonably demand from a purchaser. This means that the Collector has to determine the value of the land in open market at the relevant time, but the Collector/respondent No.2 has failed to do so while passing the impugned award and fixing of compensation amount of acquired land of the appellant/petitioner and has randomly fixed compensation of an acquired land at the rate of Rs 150,000/- per kanal which is against the spirit of provisions of the Land Acquisition Act, 1894.
17. In view of above, we have come to the conclusion that the learned Trial Court has failed to appreciate the relevant provisions of the Land Acquisition Act 1894 and reliable, cogent oral and documentary evidence produced by the appellant in the Trial Court and has disbelieved the documentary and oral evidence produced by the appellant before the Trial Court on presumption and conjecture holding that people falsely increase the rates of lands just to avail the benefit of higher compensation amount and both the transaction seems to be factitious. This observation made by the learned Trial Court is not permissible under law as the respondents have failed to rebut the aforesaid sale deeds Exh P/1 and Exh P/2 by producing oral and documentary evidence as the respondents have failed to produce a single oral or documentary evidence in the Trial Court except recording of statement of their representatives in the trial court and production of some notices issued during acquisition proceedings in the Trial Court. The case cannot be decided on personal ambitions and out of the available record.
18. For what has been discussed above, the appeal is partially allowed. Consequently , the compensation amount of acquired land of the appellant is enha nced from 150,000/- per kanal to 8,00,000/- per kanal along with 15% compulsory acquisition charges. Howeve r, the petitioner shall not be entitled to get any kind of interest on the enhanced compensation amount and shall also not be entitled to get compound interest. ##TE#
19. The petitioner/appellant has also failed to prove that the respondents have not properly assessed/fixed the costs of damaged walls and affected trees of the appellant therefore, this petition to the extent of enhancement of costs of damaged walls and affected trees is dismissed and the impugned judgment of Referee Judge/District Judge Ghizer to the extent of cost of damaged walls and affected trees and gates etc is maintained. Parties are left to bear their won costs. File.