The captioned appeal has been filed against the judgment and decree recorded by learned Reference Judge Mangla Dam Raising project Mirpur dated 08.02.2010, whereby reference filed by appellant/landowner has been accepted partly.
Detailed facts giving rise to the captioned appeal are, land owned by appellant comprising survey No. 701, 699, 1862,1952, 1916, 1889, 1887, 1881 and 1879 measuring 16 kanals 7 marlas situated in village Anmb Tehsil Dadyal District Mirpur was acquired vide award No. 55/2008 dated 26.06.2008 for Mangla Dam-Upraising and compensation was determined as Rs. 6,00,000/- per kanal for its kind hail and Ghair Mumkin Abadi and Rs. 5,00,000/- P.K. for Mera Awwal.
The landowners felt aggrieved from determination of compensation, filed reference wherein, it was stated that the acquired land is located at roadside and also situated within the limits of Municipal Committee but the Collector failed to consider this important aspect of the matter and determined very meager compensation, hence requested for acceptance of reference.
Respondents contested the reference by filing objections, wherein it was pleaded that the compensation of the land was determined keeping in view the location and nature of the land.
The learned Reference Judge Mangla Dam Raising Project Mirpur framed issues in the light of pleadings of parties, provided them opportunity to lead evidence and at the conclusion of proceedings, accepted the reference partly vide its impugned judgment and decree dated 08.02.2010, hence the captioned appeal.
The learned counsel for the appellant vehemently argued that landowner has categorically mentioned in the reference application that the acquired land is situated adjacent to the road and is of commercial nature and this stance of the appellant has not been denied by the respondents in their objections, hence would be deemed admitted. The learned advocate further argued that appellant has proved his case by producing oral as well as documentary evidence but despite the fact that Reference Judge accepted the stance that the land is of commercial nature, enhanced very meager compensation and wrongly held that through Exh.PD, a small piece of land has been sold, hence the same cannot be made basis for enhancement of compensation. The learned advocate placed his reliance on following case laws:-
1. 2017 SCR 457.
2. 2013 SCR 635.
3. PLD 2010 SC 878.
4. 2015 SCR 1190.
5. 199 SCR 291.
6. Unreported judgment of this Court rendered in civil Appeal No. 1509 titled Waheeda Akhtar and others v. Collector & others decided on 02.04.2015.
The learned counsel for the respondents controverted the arguments advanced by the learned counsel for the appellant by submitted that the sale deed dated 03.02.2005 relied upon by the appellant has been discussed in the impugned award. He further argued that the land sold through sale deed dated 03.02.2005 is of commercial nature, whereas the appellant has failed to established through any cogent and reliable evidence that the sold land as well as acquired land are of the same nature, hence the said sale deed cannot be made base for determination of compensation. He further argued that through the said sale deed, a small piece of land has been sold, hence the same can also not be relied upon for determining a big portion of land. He placed reliance on Following precedents:-
1. 1997 SCR 351.
2. 2016 SCR 1730.
3. Unreported judgment of Supreme Court rendered in civil appeal No. 25/2017 titled Mazhar Hussain and others v. Collector and others decided on 25.10.2017.
4. Unreported judgment of Supreme Court rendered in civil No. 08/2018 titled Khanma Bi and others v. Collector and others decided on 24.04.2018.
I have heard the learned counsel for the parties, gone through the record of the case with utmost care and Caution.
At the very outset, it may be stated that earlier this Court decided the captioned appeal vide judgment dated 18.10.2018 and declared the appellants entitled to get the compensation of Rs.
18,18,182/- per kanal alongwith 15% CAC. On appeal, the learned Apex Court remanded the case to this Court with the direction for fresh decision while considering award as well as evidence led by the petitioner before Reference Judge vide judgment dated 21.03.2019. On remand, this Court again decided appeal vide judgment dated 03.03.2020 and dismissed the same with no order as to costs. On appeal filed by appellant herein, the Supreme Court again remanded the case to this Court for decision afresh vide judgment dated 22.02.2022. This Court again decided captioned appeal vide judgment dated 08.07.2023 by dismissing the appeal, however, on appeal the honourable Supreme Court again remanded the case to this Court vide its judgment dated 18.03.2024 with the following observations: "The only one document (Annexure PB) has been discussed in the impugned judgment and the remaining evidence has been skipped without assigning any reason with the only observation that the sale-deed (annexure PD) pertains to a tiny piece of land. We are afraid, the land sold through annexure `PD' comes to 2 kanal, 4 marla, which cannot be termed as `tiny piece of land', whereas the land acquired is 15 kanals 7 marla. Similarly, no single piece of evidence other than the referred document has been taken into account by the learned High Court while delivering the impugned judgment, which is no way for deciding the matters."
The landowner claimed that the acquired land is of commercial nature and its market price is more than Rs. 18,00,000/- P.K. Respondents filed objections before the Reference Judge, however did not specifically denied the claim of landowner taken in paras No. 5 & 8 of the reference application that the acquired land is located adjacent to road, is of commercial nature and is located in the limits of Municipal Committee, hence it would be deemed admitted that the acquired land is of commercial nature and can be used for business purposes in 'future. The appellant in order to prove his claim, produced Muhammad Afzal who deposed in his Court statement that the acquired land is of high potential value and its price is more than Rs.
50,00,000/- P.K. The relevant portion of his statement is reproduced as under: The appellant also produced Muhammad Rafique who also fully supported the stance taken by the appellant and deposed as under: During cross examination the portion of their statements that the land is situated adjacent to the road and is of commercial nature has not been challenged, hence, admitted.
The appellant also appeared in the witness box and got recorded his statement wherein he fully supported the stance taken in the reference application. The important portion of his statement regarding potential and commercial value of the land and its location has also not been cross examined, hence would be deemed to be admitted because it is settled precept of law that the portion of statement which has not been challenged during cross examination would be deemed to be admitted and admitted facts need not to be proved under Article 113 of Qanoon-e-Shahadat Order, 1984.
The appellant has also placed on record a notification dated 28.10.2008 Exh.PE through which village Anmb has been included within the limits of Municipal Committee Dadyal.
The appellant in order to prove his stance also placed on record a sale deed Exh.PD through which 2 kanals and 4 marlas of land situated in village Anmb has been sold for the consideration of Rs.
40,00,000/- P.K. on 03.02.2005. This sale deed is much relevant for determination of compensation because the Collector in Para No. 3 of the award has himself admitted that this is the sole sale deed of the concerned village and except that no further sale deed has been executed in the concerned village. The respondents failed to rebut this document. The argument advanced by the learned counsel for the respondents that the said document cannot be relied upon because appellants have failed to establish that the sold land as well as the acquired land are of the same nature and potential value has got no plausible substance because it is evident from the impugned award that the sold land was hail in kind, situated adjacent to road and is of commercial nature while it is also established from the evidence led by the appellant that the acquired land is also located at roadside and is of commercial nature, hence the landowner is also entitled to get the same price which was received by vendor in the sale deed dated 03.02.2005.
It is also relevant to mark that Waheeda Akhtar and others whom land was acquired through said award No. 55/2008 dated 26.06.2008 filed separate reference which was accepted and the landowners were declared entitled to get compensation Rs. 18,18,182/- P.K. on the basis of said sale deed dated 03.02.2005, hence the appellants are also entitled to receive the same treatment because the superior Courts have held in various judgments that benefit of enhancement of the compensation on appeal should also be extended to the similarly placed landowners irrespective of the fact that they did not file an appeal before High Court. Reliance may be placed on PLD 2010 SC 878.
The main contention advanced by the learned counsel for the appellant that Exh.PD cannot be relied upon because through the said sale deed small piece of land has been sold has also got no valid substance because the apex Court of Azad Jammu & Kashmir in 2015 SCR 1190 and 1999 SCR 291 has held that sale deed executed in respect of small piece of land is relevant for determination of market value and compensation. Even otherwise the Supreme Court has held in the judgment dated 18.03.2024 that the land sold through Exh.PD is not a tiny piece of land, hence after the observations of Supreme Court this argument is not available to the learned counsel for the respondents.
After going through the entire oral as well documentary evidence, I am of the considered view that appellant has proved the market price of his acquired land is Rs. 18,18,182/- P.K., hence the learned Collector as well as Reference Judge failed to appreciate the evidence in a legal fashion and also skipped to ponder this important scenario of the instant case that the acquired land is situated adjacent to the road which could be used for commercial purposes in future. It is a settled precept of law that while determining compensation, the land is not to be valued mere by reference to its use at the relevant time but its future use and potential should also be taken into consideration.
Reliance may be placed on 2013 SCR 1224.
The sum and substance of the above discussion is, the appeal stands accepted and the appellant is declared entitled to get the compensation of Rs. 18,18,182/- P.K. alongwith 15% CAC irrespective of kind of land.