1. ' KHAWAJA MUHAMMAD SAEED, C.J.--- In order to meet the requirement of day to day increase in traffic, it was proposed to acquire land at the public expense for public purpose namely for the extension of road from Neelum Bridge to Tonga Stand Muzaffarabad. For this purpose a Notification under section 4 of the Land Acquisition Act, 1886 (hereinafter to be referred as an act) was issued by the Commissioner Azad Government vide No,CMR/23- 1963, dated 25-10-1986. The said Notification was followed by other, Notifications issued under the provisions of the Act. The Collector, Land Acquisition on 31-12-1986, issued a notice under section 9 of the Act, against one Shakir Shah, who on behalf of Syed Mumtaz Ali Shah, the holder of Cement Agency was working on the disputed shops. Due to this reason, the appellant could not file his objections and failed even to claim compensation according to market value of his property. Finally, the Collector Land Acquisition vide his Award No,25 of 1987, dated 20-5-1987, held Mumtaz Ali Shah Gilani, entitled to receive Rs,59,026 as compensation amount.
2. ' Feeling dissatisfied with the award of the Collector, the appellant submitted his objections under section 18 of the Act, to the Collector Land Acquisition praying therein that his objection be referred to the District Judge for determination. The reference, as required by law was sent to District Judge, Muzaffarabad on 1-2-1988, which was decided vide judgment and decree, dated 12-6-1993. Feeling still dissatisfied with the decision of the District Judge, the appellant preferred this appeal before this Court.
3. ' The case of the appellant before the District Judge was that his shops were situated in main Bazar Muzaffarabad, whose market value was not less than Rs,3,00,000 at the relevant time. In the same way, the market value of the land over which these lentered shops were constructed, was not less than Rs,3,00,000 per Kanal. The compensation fixed for the decoration of the shops as muchless. He could not raise objections as the whole proceedings were conducted at his back. He had prayed for increase in compensation amount according to the market value as visualised by law. The learned District Judge on 28-6-1988, passed ex parte order against the Azad Government as well as against Collector Land Acquisition because despite service of the notices issued by the Court for their presence before it, they failed to turn up in the Court. On 17-1-1991, even P.W.D. Department on the same ground was proceeded ex parte. Thereafter, the present appellant beside himself produced Wali-ur-Rehman and Ghulam Murtaza as his witnesses and also relied on documentary evidence Exhs.P.A., P.B. P.0 and P.E. Still no final order was passed when on 16-4-1992, Nazir Ahmed Wani, a counsel from the local Bar appeared on behalf of the respondents and moved an application for setting aside the ex parte proceedings against them. The learned District Judge denied prayer vide his order, dated 28-7-1992, however, allowed him to join proceedings onward. In the meantime, an application was moved on 5-4-1993, by the present appellant requesting therein, that either the Court should itself made spot inspection or appoint some Commission for the purpose of ascertaining the market value of the property.
4. ' The prayer was not opposed by the learned counsel for the respondents. The application was allowed by the Court and one Muhammad Idress Mughal, an Advocate of the local Bar was appointed Commission. He was asked to inspect the spot in the presence of the parties and submit his report within one week. The report was submitted by the Commission on 24-5-1993. In the report, the price of the land was fixed by the Commission at the rate of Rs,30,00,000 per Kanal and Rs,21,5000 was assessed the cast of three storey shops. The Commission also recommended that the shops in dispute belonged to Syed Aolad Ali Shah appellant and that Syed Mumtaz Ali Shah had no concern with the ownership of this property. The price of the shops was fixed by keeping in view the cite of the shops and on the basis of the case which was got prepared by the owner of the shops Syed Aolad Ali Shah the present appellant from an architect for the construction of a hotel whereby, the value of the land was assessed at the rate of Rs,30,00,000 per Kanal. Previously, the Collector had assessed the value of the land at the rate of Rs,84,829.99 per Kanal. The Trial Court vide order under appeal has increased the compensation of shops from Rs,48,134 to Rs,96,268. The market value of the land was also increased from Rs,10,433.75 to 14,502.91, per Kanal. This price has been questioned before us.
5. ' Learned counsel for the appellant argued that no evidence was produced by the respondents in rebuttal. Despite repeated notices issued to them even no objections were filed by them. He further, argued that it was assessed by the Commission after spot inspection that the shops were situated at a place which can be called the heart of capital city. The Commission, therefore, assessed the value of the land under shops at the rate of Rs,30,00,000 per Kanal and recommended that Rs,2,00,000 be paid to the appellant as compensation amount for the land. According to him, Mr. Idress Mughal, appeared before the Court and was cross-examined by the learned counsel for the respondents. But no question was even suggested that he has fixed the price of the land wrongly.
6. The most relevant portions of the statement of the Commission relating to the market value of the land and shops, despite chance available was not challenged in the cross-examination. The only conclusion which can be drawn that the respondents had no cavil so far, the market value of the land or shops assessed by the Commission was concerned. The Trial Court, therefore, according to learned counsel had no option available but to allow compensation to the appellant at the rate assessed by the Commission.
7. ' Learned counsel for the respondents on the other hand argued that the respondents had appointed counsel at the late stage. It was, therefore, not possible for the counsel to file objections before the District Judge as up to that time even ex parte evidence was recorded by the Court. He further argued that according to the evidence other than the report of the Commission brought on record by the appellant himself, the price of the land was Rs,2,07,675 per Kanal, as has been determined by the Trial Court at page 3 of its judgment. However, he conceded that as value of the shops was assessed by the employee of the P.W.D. Department, as such, he cannot dispute this value particularly when no evidence from his side is available on the record.
8. ' I have considered the respective arguments of the learned counsel for the parties and gone through the record.
9. ' No doubt, the Commission has assessed the value of the land at the rate of Rs,30,00,000 per Kanal but demand of the appellant made by him in para. 5 of his reference cannot be ignored, wherein, he has claimed the compensation of the land at the rate of Rs,3,00,000 per Kanal. In this case, no doubt, no evidence was led by the respondents either before the District Judge or before the Commission. In these circumstances, this Court should ensure that its decision is in accordance with facts, which should be ascertained with as much care as is possible in the absence of contrary proof. The appellant at any stage during the hearing of his reference had not moved any application before the District Judge for the amendment of his pleadings. Even before this Court, no such application has been moved. Learned counsel for the appellant is a senior Advocate, who might be knowing that amendment can be allowed before or at, or after the trial but before the final order is passed by the Court. Before us, up to this time, as said earlier, no application seeking amendment in the reference has been moved. The appellant, no doubt, has demanded before the Commission the price of the land over which the construction was made by him at the rate of Rs,30,00,000 per Kanal. But this evidence cannot be looked into as it is beyond the scope of his pleadings. This Court is obliged under law to consider the evidence brought on record and judge its value in the light of the pleadings of the parties, as no evidence beyond the scope of the pleadings can be looked into.
10. ' The Collector Land Acquisition has assessed the value of this land at the rate of Rs,84,829.99 per Kanal, on the basis of Award No,25 of 1987, dated 4-2-1987. Through this award, the land was acquired for the widening of C.M.H. Road. As we all now, the capital of Azad Azad Kashmir is short of land. No doubt, the shops of the appellant were situated over a piece of land which can be termed as the heart of city. The price of this land, therefore, is definitely much higher than land, which was taken into consideration by the Collector Land Acquisition. The learned Additional District Judge to whom reference was entrusted by District Judge on 23-1-1998, has assessed the price of the land at the rate of Rs,2,08,675 per Kanal. This is an arbitrary view. The learned Additional District Judge should have at least assessed the price of the land at the rate of Rs,3,00,000 per Kanal, which was demanded by the appellant due to its location. I, therefore, assessed the market value of the land at this price and held appellant entitled to claim the compensation of the land which came under the road for the purpose of its widening at this rate.
11. ' The Collector Land Acquisition arbitrary and capriciously has allowed the compensation at Rs,48,134 to the appellant for his lentered shops. The learned Additional District Judge has increased the compensation of the shops from Rs,48,134 to Rs,96,268. In my view, both Additional District Judge as well as Collector Land Acquisition have not given clear reasons for their decisions.
12. The commission, in this case, as rightly argued by the learned counsel for the appellant and conceded by learned Advocate-General, had referred the matter for the determination of the costs of the damages shops to the concerned official of the P.W.D. Department. Who after spot inspection through his Letter No,3741, dated 20-5-1993, assessed the value of the damages shops at Rs,2,02,493. This letter being relevant is reproduced in this order:-- {{URDU TEXT}} As said in the early part of this order no evidence was led by the Department either before the Commission, or before the Additional District Judge. Even Mr. Idress Mughal, Advocate, who had acted as Commission was not cross-examined on material points during his statement, dated 25- 5-1-1993. In the light of these facts, the appellant is entitled to receive Rs,2,02,493 as compensation for his shops.
13. ' In view of above discussion, the judgment passed by Additional District Judge, Muzaffarabad, to the extent of market value of the land and compensation of the shops is amended in the terms indicated above. The petitioner shall be entitled to receive 15% Jabarana, on the newly assessed compensation. The rent of the shops allowed by Additional District Judge to the appellant in his order at page 4 is maintained.
14. ' The result of the above discussion is that the appeal of the appellant is allowed with costs in the terms of indicated above.