' SARDAR SAID MUHAMMAD KHAN, C.J.---As the above entitled appeals arise out of a consolidated judgment of the High Court, we propose to dispose of the same by this single judgment.
2. The brief facts of the case are that land measuring 11 Kanals 4 Marlas, situate in Muzaffarabad town, was acquired through award No,78 of 1991, dated 17-12-1991 at the rate of Rs,24,000 per Kanal at the instance of Inspector-General Prisons Ghulam Muhammad Lolabi initiated a reference to the Additional District Judge, Muzaffarabad, alleging that he was allotted of the land acquired, his claim was upheld by the Supreme Court after protracted litigation wherein Jail authorities were also party. According to him, the acquisition proceedings were initiated by Jail authorities keeping the factum of his allotment secret from the Collector Land Acquisition with the ulterior motive to deprive him of receiving the compensation to which he was entitled. He also alleged that the land acquired over which the building of Central Jail is also constructed, is situated in the heart of Muzaffarabad town and is a commercial site, the market value of which is not less than rupees five lac per Kanal. Thus, he prayed that he might be awarded compensation of the land at the aforesaid rate.
3. The Custodian of Evacuee Property also initiated a reference contending that the land vested in him and he was entitled to compensation at the rate of rupees twenty-five lac per Kanal it was further alleged by the Custodian that he intended to make plots of the said land and, thereafter, to alienate the same which would have fetched him substantial gains in view of the commercial value of the site. The Additional District Judge, after taking necessary proceedings, upheld the claim of Ghulam Muhammad Lolabi, appellant herein, in terms that he was entitled to receive the compensation of the land at the rate of rupees five lac per kanal plus 15% solatium and interest thereon at prevalent bank rates; the learned Additional District Judge also directed that if the compensation of the land acquired was not paid to Ghulam Muhammad Lolabi, appellant herein, he would be entitled to the restoration of the possession of the land acquired and the possession of the rest of the land which was allotted to him but the possession of the same was with the jail authorities. The reference filed by the Custodian was dismissed in view of the previous litigations of the parties whereby Ghulam Muhammad Lolabi, appellant herein, was held to be the genuine allotted of the land. Three separate appeals by Inspector-General Prisons and others, by the Custodian of Evacuee Property and by Ghulam Muhammad Lolabi were preferred to the High Court against the aforesaid judgment of the Additional District Judge. The High Court consolidated all the appeals and dismissed the appeals filed by the Custodian and Ghulam Muhammad Lolabi while partly accepted the appeal filed by the Inspector-General Prisons and others to the extent that instead of interest at existing bank rate, Ghulam Muhammad Lolabi would be entitled to the interest at the rate of 6% in view of the provisions contained in section 34 of the Land Acquisition Act and that the direction given by the Additional District Judge that in case the compensation was not paid to Ghulam Muhammad Lolabi, the possession of the acquired land and the rest of the land would be restored to him, being beyond the scope of the reference, was also set aside. The above entitled appeals have been directed against the aforesaid judgment of the High Court.
4. The main grievance of the Inspector-General Prisons and others against the judgment of the High Court is that the compensation amount determined by the Additional District Judge and upheld by the High Court to the tune of rupees five lac per Kanal was not justified and Ghulam Muhammad Lolabi was not entitled to any interest on the compensation amount whereas Ghulam Muhammad Lolabi is aggrieved by the fact that he was deprived of the interest at the existing bank rate and that no observation was made by the High Court regarding 15% solatium which was awarded to him by the Additional District Judge.
5. Mr. Imdad Ali Malik, Advocate, the learned counsel for Inspector-General Prisons and others, has contended that the Reference Judge and the High Court were not correct in ascertaining the market value of the land in dispute at the rate of rupees five lac per kanal. He has submitted that the sale-deeds, Exhs.PF, PG and PH, which pertain to the prices of land measuring three marlas in first two cases and two marlas and four sarsais in case of sale-deed Exh.PH; the same were small pieces of land over which the concerned vendees constructed shops for running their business and, thus, the said sale-deeds do not constitute reliable criteria for ascertaining the market value of the land which measures more than ten kanals. He has also submitted that Ghulam Muhammad Lolabi, appellant herein, was not entitled to any interest in the instant case, because compensation amount was deposited with the Collector Land Acquisition; the interest under section 34 of the Land Acquisition Act is payable if the compensation amount is not paid to the owner or deposited with the Collector Land Acquisition. The learned counsel has referred to a case reported as Muhammad Sharif v. Azad Government (1998 CLC 2052) wherein it has been held that while determining the market value, sale-deeds of small pieces of land cannot form basis for ascertaining the larger tracts of land. The perusal of this authority would reveal that it was also held by this Court that the concerned owner could not prove that the land acquired had potential for using the same as commercial site. Therefore, this authority is not helpful in the present case.
6. In reply, Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for Ghulam Muhammad Lolabi, has controverted the arguments advanced an behalf of the Inspector-General Prisons. He has contended that the High Court has rightly awarded compensation amount at the rate of rupees five lac per kanal in view of the fact that the land acquired is situate in the heart of Muzaffarabad town. He has also referred to the reference filed by the Custodian who alleged that the market value of the suit land comes to rupees twenty-five lac per kanal in view of its commercial potential. He has further contended that as the land acquired can be used for commercial purposes, the sale-deeds of smaller pieces of land are also good guide for determining the market value of the same. The learned counsel has argued that the High Court was not legally justified to deny the interest to Ghulam Muhammad Lolabi, appellant, at bank rate; and that the judgment of the High Court does not find any mention with regard to the award of 15% solarium which was awarded by the Additional District Judge. The learned counsel has further argued that as the point that the compensation to the tune of rupees three lac determined by the Collector Land Acquisition was deposited with him and, thus, Ghulam Muhammad Lolabi, allotted, was not entitled to any interest was not taken by the Inspector-General and others before, the same cannot be taken for the first time in this Court as being question of fact. The learned counsel has also argued that the Custodian cannot be given any relief in exercise of inherent powers. The learned counsel, in addition to the authorities relied upon by the High Court, has referred to the following authorities in support of his contention that if the land acquired has potential for using the same as commercial site, sale-deeds, pertaining to smaller pieces of land are good guide for determining the market value of larger pieces of land:-- ' In a case reported as Government of Pakistan v. Muhammad Shafi Khan (1999 SCR 291), it has been held that if it is established that in view of the geographic position of the land acquired it can be put to commercial use, the market value of the same can be based even on sale-deeds which pertained to the smaller portions of land.
' Identical view was taken in a case reported as Azad Government v. Mst. Razia Farooqi (1996 SCR 136).
' In a case reported as Misri v. State (1999 YLR 1273), it has been held that under section 42-A(1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, inherent powers can he resorted to only if the matter is already pending before the Supreme Court in pursuance of recognized mode of Constitution or an Act of the Legislature. It may be observed that in the instant case, the question as to whether the Custodian can be given the relief, despite the fact that no appeal was filed by him has arisen out of the above entitled appeals and, therefore, this authority does not help the case of Ghulam Muhammad Lolabi, appellant.
7. Mr. Farooq Hussain Kashmiri, Advocate, appeared for the Custodian who is impleaded as respondent in the above entitled appeals, and submitted that although he had not filed any appeal, yet the appeals filed by the appellants, herein, should be decided according to law.
However, when the learned counsel for the respondent was asked as to why he did not file the appeal on behalf of the Custodian, despite the fact that the apportionment of the compensation was not made according to order known as the Evacuee Property Allotters (Compensation) Order, 1967, the learned counsel submitted that he did so per instructions of his client.
8. We have given due consideration to the arguments raised at the Bar. The first question which needs resolution is as to what is the market value of the land acquired in the instant case. It may be observed that both the Reference Judge and the High Court determined the market value on the basis of sale-deeds Exhs.PF, PG and PH. It may be observed that it is correct that the aforesaid sale-deeds pertain to small pieces of the land but all the same we cannot ignore the fact that the land acquired is also in the same vicinity to which the said sale-deeds relate, i,e,, the heart of Muzaffarabad town; the land acquired has potential of being used for commercial purposes. In fact the land acquired is a valuable commercial site keeping in view its geographical situation.
Therefore, the general principle that small pieces of land do not constitute good guide for determining the market value does not hold true in the present case, especially so when the sale- deeds pertaining to larger pieces of land are not produced by any of the parties. We also cannot lose sight of the fact that the land situated in the thickly populated area of the city like one in the present case, is generally available for sale in small pieces and, thus, it is hardly possible to produce sale-deeds which pertain to larger pieces of land. Therefore, the High Court has rightly relied upon the cases reported as Fazalur Rehman v. General Manager S.I.D.B. (PLD 1986 SC 158) and a case of this Court entitled Azad Government v. Razia Farooqi (1996 SCR 136) in support of the view that if the land has potential to be used as commercial site, the small sale-deeds would also be a good guide for determining its market value. Identical view was taken in a case reported as Government of Pakistan v. Muhammad Shafi Khan (1999 SCR 291). Thus, we are of the view that the Reference Judge and the High Court did not commit any error in determining the market value of the land acquired at the rate of rupees five lacs per Kanal.
9. So far as the contention of the learned counsel for Ghulam Muhammad Lolabi, appellant, that there is no mention in the judgment of the High Court about 15% solatium awarded by the reference Judge is concerned, it is misconceived because the High Court dismissed the appeal filed by Ghulam Muhammad Lolabi in which he sought compensation at enhanced rates than the one fixed by the Additional District Judge; the High Court did not observe anywhere in its judgment that he (Ghulam Muhammad Lolabi) was not entitled to 15% solatium. Obviously, the judgment of the Additional District Judge, so far as the same pertains to the entitlement of Ghulam Muhammad Lolabi, appellant, to solatium is concerned, that is intact.
10. Coming to the argument regarding the question of interest, it may be observed that the point as to whether the compensation amount to the tune of rupees three lacs has been deposited with the Collector Land Acquisition and, thus, Ghulam Muhammad Lolabi was not entitled to any interest cannot be allowed to be raised for the first time in this Court because it was not raised in the High Court. However, under section 28 of the Land Acquisition Act, the Collector and the appellate authority are empowered to order the payment of interest on the enhanced compensation amount at the rate of 6% per annum. Thus, we amend the judgment of the High Court in terms that Ghulam Muhammad Lolabi would be entitled to 6% interest on the compensation amount to which he is found entitled from the date of the award.
11. Coming to the question of apportionment of the compensation amount, it has already been stated that the Custodian did not come up in appeal to this Court against the judgment passed by the High Court, The perusal of the judgment of the High Court would reveal that no reason has been given by the High Court for dismissing the appeal filed by the Custodian. It is enigmatic that no appeal was filed by the Custodian, despite the fact that the judgment of the High Court runs counter to paragraph 3 of the Evacuee Property Allotters (Compensation) Order, 1967, according to which 2/3rd compensation is to be paid to the allotted while 1/3rd would go to the Custodian.
However, the judgments of the reference Judge and the High Court being in patent violation of aforesaid Order, we amend the same in exercise of powers vested in this Court under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with rule 4 of Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978, and direct that Ghulam Muhammad Lolabi, appellant, shall be entitled to receive 2/3rd of the compensation amount while 1/3rd shall go to the Custodian, who would also be entitled to get 15% solatium and 6% interest on his proportionate share.
' The appeals stand disposed of in the terms indicated above with no order as to the costs.