JAVAID IQBAL Versus COLLECTOR LAND ACQUISITION, MIRPUR
MOHAMMAD SHERAZ KIANI, J.-- The captioned appeal has been directed against the judgment and decreed passed by the learned Reference Judge Mangla Dam Raising Project Mirpur, dated 14.01.2011, whereby the Court below while enhancing the compensation amount decreased the amount already fixed by the Collector, for setting aside the same.
2. Brief facts forming the background of the instant appeal are that respondents acquired land of the petitioner/appellant, herein, measuring 7 kanal 5 marla situated in Village Pail Bakshi Molraj Tehsil Dadyal District Mirpur for Mangla Dam Upraising Project Mirpur, vide award No.17/2007 issued on 14.05.2007. Feeling aggrieved from the said award, Petitioner/appellant, herein, filed a reference under Section 18 of the Land Acquisition Act, 1894, before the learned Reference Judge Mangla Dam Raising Project Mirpur, for enhancement of the compensation amount of the awarded land on 26.07.2007. It is stated in the reference application that the Collector Land Acquisition determined very tiny price of the acquired land, whereas, the market value of the awarded land is approximately Rs.15,00,000/- P.K. It is craved that the land in the said village is used for the commercial purpose and the land under reference is of superior kind and situated on the road and ten shops have been constructed therein, therefore, its market value should be determined as Rs.15,00,000/- P.K.
3. On filing of the reference, respondents were summoned who submitted their objections whereby the claim of the petitioner was repudiated in toto and requested for dismissal of the reference application.
4. The learned Reference Judge in the light of the pleadings of the parties framed as many as 03 issues and directed the parties to lead their evidence. On conclusion of the proceedings, the learned Reference Judge, Mirpur vide judgment and decree dated 14.01.2011, instead of enhancing the amount lessened the already fixed price from Rs.2,75,000/- to Rs.1,25,000/- per kanal. Feeling dissatisfied from the said judgment and decree petitioner approached before this Court for increase in the compensation amount of the awarded land.
5. Mr. Farooq Minhas, the learned counsel for the appellant, vehemently contended that the acquired land of the appellant was of superior kind and its compensation should be determined as Rs.1,5,00,000/- P.K. but the Collector Land Acquisition has illegally fixed its market value, which was not justified in any manner. The learned counsel maintained that the claim of the petitioner/appellant was proved beyond any doubt before the learned Reference Judge by adducing cogent and reliable oral as well as documentary evidence. He further maintained that the learned Reference Judge instead of enhancing the compensation amount reduced the same. The learned counsel, finally requested that by accepting the instant appeal, the compensation .amount of the acquired property be enhanced to the tune of Rs.15,00,000/- per kanal along with compulsory acquisition charges. In support of his version he referred the following authorities.
2009 CLC 741;
PLD 2010 SC (AJ&K) 37;
2013 SCR 1224;
Rehmat Jan v. Collector Land Acquisition Mangla Dam Unreported Judgment of Apex Court of Azad Jammu and Kashmir).
6. The learned counsel appearing on behalf of Collector submitted that the compensation has rightly been fixed by the Collector as per law while keeping in view the overall factors relating to the matter. He lastly prayed for dismissal of appeal.
7. I have heard the learned counsel for the parties and gone through the record of the case.
8. A perusal of record of the case and documents appended along-with the appeal shows that the disputed land of the appellant, herein, situated in Village 'Pael Bakshi Molraj' Tehsil Dadyal District Mirpur was acquired for upraising of Mangla lake vide award No.17/07 dated 14.05.2007. The petitioner/appellant, herein, against the said award, filed a reference before the learned Reference Judge Mangla Dam Raising Project Mirpur for further enhancement but the learned Judge instead of making enhancement in the compensation amount devalued the land. In support of his version, petitioner/appellant produced a copy of sale deed dated 02.11.2006 Exh."PF", according to this sale deed, land measuring 1 kanal situated in the same Village was sold in consideration of Rs.10,40,000/-, Exh."PD", one year average price of the land, Exh."PB, a copy of Asamiwara. The appellant, to support his oral version, produced 'Mehmood Khan son of Mohammad Khan, Raja Mehfooz Khan, Ghazanfar Ali Khan, and he himself appeared into the witness box and got recorded his statement. According to the statement of aforesaid witnesses, the land under reference is commercial and situated on the road whereupon shops have been constructed and regarding its market value, they all say that approximately six months or one year prior to their depositions the market price of the awarded land was fifteen to twenty lacs per kanal.
9. I have also gone through the report of Commission appointed by the Court, he was asked whether the land is Banjer or Commercial, whether it is situated on the road and ten shops have been constructed upon it. Regarding the kind of land; he stated that the land measuring 1 kanal and 5 marla is situated on the road and four shops have been constructed and these shops were rented and the land was being used for commercial purpose. Whereas, to the extent of another part of the land, he noted that the same is situated approximately at the distance of 300/400 Yards from the 1st part of the land and this part of the land could also be used for the commercial purpose and that is also situated alongside the link road. So, the claim of the appellant that his land was commercial in nature and situated on the road has been proved through the statement of the witnesses and report of Commission, although commission was not examined, but his report is part of the file and can be considered to reach the just decision of the case. Now, come to the documentary evidence, the petitioner/appellant in support of his version produced a sale deed dated 02.12.2006. The award was issued on 14.05.2007, whereas the transaction between the parties was taken place on 02.12.2006 approximately five months prior to the award, in the relevant period.
10. Furthermore, in para No.8 of the award, the Collector himself admitted the claim of appellant that his land is situated on the road and of commercial nature. Para 8 of the award is usefully reproduced below:---
When in the above para and according to the statement of the P.Ws. it is not only established rather admitted fact that the land under reference was situated alongside the road and shops were constructed there upon. So, the land was commercial in nature, in such situation kind of the land whether, it is Banjer Qadeem or Mora Awal become irrelevant. Kind of the land is relevant only when any land is in exclusive use for agricultural purpose, when the land is used for commercial or residential purpose then its price in the market is not determined on the basis of the kind of land rather due to its potential use that for what purpose the land is used on the principle of demand and supply. Even otherwise, land was 'Mera Dom' and the learned Reference Judge probably considered the same Banjer Qadeem mistakenly. If it was Banjer Qadeem, even then its market value should have been determined according to the factors relevant at that time not on the basis of kind of the land. The Supreme Court of Azad Jammu and Kashmir in the case of Abdul Aziz v. Azad Government and 2 others reported as PLD 2010 SC (AJ&K) 37 to determine the market value held as under:-
"An area may be 'Banjar' or 'Barani', but its market value may be higher than 'Mera-Awal' or "Hail" due to its location, neighborhood and potentiality etc. All these factors have to be considered while determining the market value of the land. The other considerations have also been provided in the law, which would also be relevant for determining the market value of the land of owners whose land has been compulsorily acquired. Section 23 subsection (1) of the Land Acquisition Act provides that the Court shall take into consideration the market value of the land, loss by reason of severing such land from the other land, acquisition injuriously affection the other property or earnings in consequence of change of residence or place of business and damage, if any resulting from diminution of the profits of land between the time of the publication of declaration under section 6 and at time of taking possession of land by the Collector."
It was also held in the case reported as 2013 SCR 1224 that the land is not to be valued mere by the reference to the use to which it is being put at the relevant time, but also by a reference to the use to which it is reasonably capable of being put in future.
11. However, in my opinion in the present case the case of Rehmat Jan v Collector Land Acquisition Mangla Dam decided by the Hon'ble Apex Court of Azad Jammu and Kashmir is most relevant ruling because in that case a reference was made to case reported as PLD 2002 SC 25 in which it was held that mere classification or nature of land may be taken as relevant consideration but not as absolute one. An area may be 'banjar' or 'Barani' but its market value may be tremendously high because of its location, neighborhood, potentiality or other benefit. All these factors, therefore, cannot be ignored. In the present case as well, the land of the appellant was situated alongside main road Sayakh to Dadyal and other part of the land on the link road of that village just 3 or 4 hundred yards away from the main commercial market, both are adjacent to Govt. High School Siakh. So, when the land was reserved for commercial purpose, to determine its market value on the basis of its kind was not justified at all. In the supra case of Rehmat Jan the Supreme Court of Azad Jammu and Kashmir while on the basis of Sale deed executed before the issuance of the award but after the notification issued under section 4 of the Land Acquisition Act, fixed the compensation amount after making a proportionate reduction with reference to date of the publication of notification under section 4 of the Act. In the present case a copy of sale-deed Ex. "PF" is also similar kind of evidence, as in the present case notification under section 4 of the Act was issued on 26.12.2005 and award was issued on 14.05.2007 and according to Ex."PF" the sale-deed of one Muhammad Taj in favour of Riaz Husssain was executed, after a. period of one year of notification, on 12.12.2006 but before the issuance of award (i.e. 14.05.2007) and this sale-deed pertains to the and situated in the same village Peal Bukhshi Molraj. The learned Reference Judge could have easily determined the compensation amount on the basis of said sale-deed while making the reduction proportionately of the period of one year bust he fell in grave error of law and fact. The relevant portion of the supra case of the Apex Court is usefully reproduced as under:--
"In the case in hand the notification under section 4 has been issued on 17.01.2005 and the award was issued on 05.10.2006, whereas the sale-deed Ex.PK is executed before issuance of the award, in our estimation, it is the most cogent and credible piece of evidence, which reflects the actual bona fide market value of the land of the locality. According to this piece of evidence, in October, 2006 the market value of the land in the locality was above Rs.11,42,000/- per kanal. However, after proportionate reduction with reference to date of publication of notification under section 4 of the Act and registration of the sale-deed, the assessment Market value of the land cannot be less than one million rupees per kanal."
According to Exh."PF" the land measuring one kanal vide sale-deed dated 12.12.2006 was sold for consideration of Rs.10,40,000/-, thus that land was sold after the period of one year after the notification, while keeping in view the general trend of escalation of prices of landed property, 20% proportionate reduction of one year would serve the purpose and remaining amount would be just and fair price of the land. The learned Reference Judge discarded this strong and cogent evidence on very flimsy grounds. It is un-rebutted documents. The respondents could not be brought anything on record which may strengthen the fact that the land sold through the sale-deed shown in the Ex."PF" was superior of the land of the appellant. So, any evidence which remains un-rebutted shall be deemed as admitted one. If 20% (Rs.20,8000/-) is deducted from Rs.10,40000/-. then the market price of land under reference becomes not less than Rs. 8,00,000/- per kanal and in my view it would by just and fair compensation for the land owner appellant and according to the market value of the land at the time of acquisition.
12. When the appellant has proved his case by producing all the oral and documentary evidence, then the learned Reference Judge was not justified to decrease the compensation amount instead of increasing particularly when there was no such case from the respondent side. The land owners should be compensated properly and fairly, therefore; the appellant is entitled for the enhancement. Similar proposition has been resolved in a case titled Land Acquisition Collector and others v. Mst. Iqbal Begum and others [PLD 2010 SC 719] the relevant portion is reproduced as under:-
"The principle laid down for determination of compensation reflect anxiety of law-giver compensate those, deprived property adequately enough so to be given gold for gold and not copper for gold."
The nutshell of above discussion is that the instant appeal is accepted and the compensation amount of the awarded land of the petitioner/appellant, herein is enhanced to the tune of Rs.8,00,000/- (8 lacs) per kanal along with 15% CAC irrespective of the kind of the land. The judgment and decree passed by the learned Reference Judge Mangla Dam Raising Project Mirpur dated 14.01.2011, is hereby set-aside. The respondents are directed to manage the enhanced amount and make sure payment of the same to the appellant within a reasonable time.
ZC/9/AJK(HC) Appeal allowed.