Azad Government through Secretary Communication and Works Department, Civil Secretariat Muzaffarabad Versus Ch. Muhammad Zahoor Ahmed alias Hafiz Zahoor Ahmed

Khawaja Muhammad Nasim, J .--- The appeal (supra) by leave of the Court, has been preferred against the judgment of the High Court, dated 22.05.2024, passed in Writ Petition No.29/2020.

2.The essential facts germane to the disposal of the instant appeal are that the respondent No.1, herein, instituted a writ petition before the High Court, alleging therein, that his own land, comprising Khewats No.8 min, 46 min, 49 min, 50 min and 195 min, bearing survey Nos. 1575, 1574, 1568, 1567, 1566, 1564, 1561, 1562, 1563 and 1559, total measuring 2 kanal, 15 marla, situated at village Gulhar Sharif, Tehsil and District Kotli, has been utilized by the official respondents for widening of Kotli-Rawalpindi Road but neither the land has been acquired nor the compensation of the same has been paid to petitioner/respondent No 1. herein. In the writ petition, respondent No.1, prayed for issuanas of direction to the official respondents to initiate the acquisition proceedings and pay the compensation to the landowner, in accordance with law. After necessary proceedings, the learned High Court through the impugned judgment accepted the writ petition in the following terms:-

This judgment of the learned High Court is the subject matter of the captioned appeal by leave of the Court.

3.Sheikh Masood Iqbal, the learned Advocate-General, along with Mr. Muhammad Asad, Legal Advisor, while appearing on behalf of the appellant, submitted that the impugned judgment passed by the learned High Court is contrary to law and the record of the case, rendering it unsustainable in the eye of law. It was contended that no land owned by respondent No.1 was utilized by the Department for the widening of the road; rather, only a portion of the land comprising survey No.1559 was affected/utilized, which is classified as Shamilat Deh land. He further submitted that while filing the writ petition before the High Court, the petitioner/respondent No.1 failed to produce any documentary evidence to substantiate his claim that land owned by him was utilized for the construction of the road, thereby entitling him to compensation. He emphasized that in the written statement filed by the appellant before the High Court, it was categorically asserted that no land of the respondent was affected or utilized in the road construction. However, despite the clear position of the appellant, the learned High Court failed to appreciate the record in its proper perspectief erroneously issued direction for initiation of acquisition proceedings and payment of compensation to the respondent without any legal justification, resulting into undue hardship for the appellant. Lastly, it was prayed that the present appeal be accepted.

4.Conversely, Mr. Akhlaq Hussain Mughal, the learned Advocate, appearing on behalf of the private respondent, vehemently defended the impugned judgment, while submitting that it is an admitted fact that the land owned by the respondent, along with Shamilat Deh land, was utilized for the widening of the road. He further submitted that in view of this factual position, the learned High Court has committed no illegality while directing the department to initiate acquisition proceedings and to compensate the respondent for the land utilized. The impugned judgment passed by the learned High Court is perfectly legal, hence, the interference by this Court is not warranted. He prayed for dismissal of appeal.

5.We have heard the learned Advocates, representing the parties and gone through the record made available along with the impugned judgment. It depicts from the record that respondent No.1, herein, filed a writ petition before the High Court, claiming therein, that his own land comprising of survey Nos. 1575, 1574, 1568, 1567, 1566, 1564, 1561, 1562, 1563 and 1559, was utilized for widening/construction of Kotli to Rawalpindi Road, but the department has neither acquired the land nor the compensation of the same has been paid to him. In the writ petition he prayed for issuance of direction to the respondents, therein, to pay the compensation of the aforesaid land. Through the impugned judgment the learned High Court has accepted the writ petition and issued the direction to the official respondents, therein, to pay the compensation of the land owned by the petitioner/landowner, after acquiring the same.

6.In view of the controversy involved in the matter, this Court, vide order dated 02.12.2024, directed the Executive Engineer, Public Works Department (Highway Division), Kotli, to submit a detailed report regarding the land utilized for the construction of the road. In compliance with the said direction, a comprehensive report has been furnished, wherein it has been explicitly stated that no land owned by the respondent has been utilized for the construction of the road. Instead, the report clarifies that only the land comprising survey No.1559, falls within the road area, which is classified as Shamilat Deh land. Upon meticulous examination of the record available before us, it becomes evident that the petitioner/respondent No.1, at the time of filing the writ petition, only annexed the documents in respect of his ownership of the land but failed to produce any documentary evidence substantiating his claim that any portion of his land was used for the road's construction. The documents appended with the writ petition further affirm that the land affected by the road construction pertains solely to survey No.1559, which is undisputedly Shamilat Deh land. Furthermore, the respondent has not produced any proof of entitlement over the said land, such as a Sanadnama or any other legal document establishing proprietary rights. In the light of the foregoing, after thoroughly scrutinizing the record, it is evident that the learned High Court did not properly appreciate the material facts and legal position while accepting the writ petition, as the same appears to have been allowed without an eptantive basis. Such an approach is contrary to the settled principles of law, as the acceptance of the writ petition in the absence of any concrete record regarding the claim of the petitioner/private respondent, renders the decision legally unsustainable. In this state of affairs, we find that the present appeal is meritorious and, therefore, liable to be accepted.

The result of the above discussion is that while accepting the instant appeal, the impugned judgment passed by the learned High Court dated 22.05.2024 is hereby set aside. Consequently, the writ petition filed by respondent No.1, is dismissed. No order as to costs.

JK/50/S.C (AJ&K) Petition dismissed.