M ALIK INAYAT-UR-REHM AN, J. Civil First Appeals, bearing CFA No.63/2018 and CFA No.71/2018, both have origin in one and the same judgment/decree dated 09-11-2018, passed by the learned Referee Judge/ District Judge Hunza in Reference Petition No.02/2015 and are heard by us together hence are decided with this single judgment/order.
2. Brief facts of the litigation between the parties are that land of the appellant is acquired by respondents for extension of road and award No.DK-02 (H/649-50/14) dated 02-02-2015 is passed by the respondent No.2/ Collector Hunza/ Nagar awarding land compensation to the owner for 6 marla 8 sarsai land as non-commercial. Appellant contends that his acquired land was of commercial kind but value of his land has wrongly been fixed by the Collector at non-commercial rates. His acquired land was measuring 8 marlas 6 sarsai and situated in commercial area at village Nasirabad Hunza which is used by respondents for the purpose of extension /widening of KKH in the year 2007. The acquired land is situated within the limits of commercial area as declared by the revenue authorities, but the concerned officials of the acquiring authority/Collector Hunza/Nagar have fixed compensation of land of appellant @ Rs.700,000/- per kanal instead of Rs.1200,000/- per kanal notified by him for commercial lands which is clear discrimination with the appellant. The appellant has also averred that his land has been acquired in 2007 but award is passed and compensation amount has partially been paid in February 2015 without any compound interest; hence, the appellant is also entitled for grant of compound interest @ 8% since December 2007 upto date of full payment of compensation amount. The appellant further claims enhancement of compensation for his two big trees of apple and mulberry and loss due to their removal.
3. The defendants contested the Reference Petition by filing their joint parawise comments and contended that they have completed the acquisition proceedings and have passed award according to law and the claims of the owner are wrong and unfounded hence the Reference Petition may be dismissed.
4. The learned Referee Court framed 13 issues including issue of relief to determine the fate of the Reference Petition and after hearing arguments of the parties has partially allowed the Reference Petition vide judgment/ decree dated 09-11-2018 enhancing the compensation amount of acquired land from Rs.285,078/- to Rs.403,912/- at the commercial rate @ Rs.1200,000/- per kanal and has dismissed the remaining claim of the appellant to the extent of compound interest on compensation amount and enhancement of compensation amount of two trees.
5. Feeling aggrieved and dissatisfied with the impugned partial judgment/ decree passed by the learned Referee Judge/District Judge Hunza, the present appellant has filed the instant appeal (CFA No.63/2018) while the present respondents have filed CFA No.71/2018 assailing the same judgment.
6. The learned counsel for the appellant/owner has contended that the learned Referee Court has rightly enhanced rate of land compensation of appellant @ Rs.1200,000/- per kanal by considering the land of appellant as commercial one, but has passed judgment/decree calculating acquired land of appellant as 6 marla and 8 sarsai instead of 8 marla and 6 sarsai; hence, the judgment/decree of the learned Referee Court/District Court may be revised to the extent of actual acquired land of appellant, i.e., 8 marla 6 sarsai, and compensation amount may be enhanced from Rs.403,912/- to Rs.516,000/-. The learned counsel further submitted that the learned Referee Court has partially dismissed the Reference Petition to the extent of compound interest on compensation amount and enhancement of compensation amount of two fruit trees which are also required to be revised by enhancing compensation rate of both fruit trees from Rs.7800/- to Rs.100,000/- and compound interest @ 8% per annum since date of acquisition since December 2007 up to date of payment and compound interest on enhanced amount since date of acquisition/possession till date of payment. He also requested to dismiss the cross appeal filed against the appellant by the respondents.
7. The learned Additional Advocate General and the counsel for the respondents Nos.3 to 5 have opposed the arguments advanced by the learned counsel for the appellant contending that the land of appellant has been acquired in December 2007 but same was not utilized by the respondents till February 201.5 and the disputed land remained in possession of the appellant till payment of compensation amount to him. They further contended that the impugned judgment/decree passed by the learned Referee Judge/District Judge is contrary to law and facts which finds no any support in the record of the case as such the same is not maintainable and liable to be set aside. The impugned judgment/ decree is based on conjectures and presumptions as the appellant had badly failed to prove his claim/case by adducing any cogent and reliable oral and documentary evidence. The learned Referee Court has recorded his findings on the basis of those documents which were rejected/cancelled by the competent authority hence the learned Referee Court has wrongly decreed the Reference partially in favour of the present appellant. They also submitted that the learned Referee Court has ignored the notification dated 23-07-2012 regarding demarcation of commercial area issued by the competent authority hence the impugned partial judgment/decree is not sustainable in the eye of law and is liable to be set aside.
8. We have heard arguments advanced by the learned counsel for the parties and perused the record with their able assistance.
9. The appellant/owner of the acquired land has filed the instant appeal for the following remedies:-- I) Grant of enhanced compensation for entire 8 marla and 6 sarsai land @ Rs.12,00,000/- per kanal on commercial rates.
II) Grant of compound interest under Sections 28 and 34 of the Land Acquisition Act since.
December 2007, i.e., the date of acquisition of land of appellant.
III) Grant of compound interest on unpaid 40% amount of compensation.
IV) Enhancement of rate of two trees.
The respondents of the instant appeal have filed CFA No.71/2018 under Section 54 of the Land Acquisition Act 1594 for setting aside the impugned judgment/ decree of the learned Referee Court and for dismissal of the Reference Petition of the owner.
10. The appellant has produced documentary evidence, Exh.P/1 to Exh.P/5 and also produced two PWs in support of his claim and two RWs in rebuttal. From appraisal of oral and documentary evidence produced by the appellant, it is evident that the appellant has proved his case/claim through oral and documentary evidence which is mainly from the record of the respondents.
Exh.P/5 proves that 8 marla 6 sarsai land of the owner has been acquired and the demarcations of boundaries of commercial lands and re-measurements of the acquired lands are carried by respondents after acquisition in absence of the appellant/ owner as is evident even from statements of the DWs hence are ineffective against the rights of the owner. The learned Referee Court has decided the issues Nos. 6 to 9 relevant to the measurement and enhanced compensation rates in favour of the land owner but has partially decreed the Reference Petition in favour of the appellant to the extent of 6 marla 8 sarsai in the operative part of the impugned judgment which is prima facie a typographical mistake.
11. Section 34 of Land Acquisition Act provides that when amount of compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of 8% per annum from the time of taking possession of acquired land until payment of amount to the affectees.
12. It is proved from record that the present respondents have acquired 8 marla 6 sarsai commercial land of appellant/ owner for extension/widening of KKH in December 2007 as is evident from the Exh.P/1 to P/5, but have awarded compensation amount to the owner at non- commercial rates and compensation amount has partially been paid to the appellant in February 2015 after lapse of 8 years. The appellant has not been given the whole compensation amount under the impugned award till now. The enhancement declined by the learned Referee Judge is being endorsed now with correction and partial payments are already made to the appellant/ owner, therefore, the appellant/owner is entitled for'8% compound interest w.e.f. the date of the judgment/ decree of the learned Referee Court till final payment of the compensation amount to the owner by the respondents. Moreover, the learned Referee Court has inadvertently calculated land of appellant as 6 marla and 8 sarsai, therefore, the appellant is also entitled for compensation amount of the left over portion of the acquired actual land, i.e., 8 marla 6 sarsai consumed in extension / widening of KKH Rs.12,00,000/- per kanal and the compensation amount in this regard is hereby enhanced from Rs.403,912/- to Rs.516,000/-.
13. The appellant/owner has not been able to refer to any evidence non-read or misread by the learned Referee Court whereby he has proved his rest of the claims. Likewise, the respondents/ acquiring agency/ appellants of Appeal No.71/2018 were unable to disprove the above claims of the owner by any stretch of law and evidence to interfere in the impugned judgment/decree therefore the cross appeal filed by the present respondents is meritless and is liable to fail.
14. For the foregoing reasons, we have come to this definite conclusion that the instant appeal bearing CFA No.63/ 2018 is liable to be allowed with slight modification of the impugned judgment/ decree as noted in favour of the owner declaring the total acquired land as 8 marla 6 sarsai in Para No.12 above with compound interest and the appeal bearing CFA No.71/2018, filed by the present respondents being meritless is liable to be dismissed. Order accordingly. Parties are left to bear their own costs. Certified true copy of this judgment be placed on the file of CFA No.71/2018 and record of the learned Trial Court be returned back to them. File after due completion be consigned to record.