1987 PLP 225 (CLC)

(c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S. 96‑‑Land Acquisition Act (I of 1894), Ss. 4 s 23‑‑Market value of acquired land‑‑Absence of proper evidence‑‑Effect‑‑Where proper evidence regarding determination of market price relevant to date of notification for acquisition of land was lacking, High Court in its appellate jurisdiction, held, would upset such finding‑‑Finding on re‑classification of land, held, was also not sustainable due to paucity of pertinent evidence at relevant date. (d) Land Acquisition Act (I of 1894)‑‑ ‑‑‑S. 23‑‑Civil Procedure Code (V of 1908), S. 96 3

0. XLI, R.23‑ Demarcation conducted on direction of Court by revenue functionary‑ Such demarcation, held, could not be brushed aside in absence of evidence to the contrary, on mere plea of beneficiary body that functionary demarcating same had measured affected area and not acquired area‑‑Though no cross‑objections have been filed by the body yet as High Court was remanding case because of lack of proper evidence for determination of market value of land, issue on demarcation was also upset by High Court in interest of justice. S. Ibne Ali, A.‑G. for Appellants. Fida Muhammad Khan for Respondents. Date of hearing: 30th September, 1986. ABDUL KARIM KHAN KUNDI, J.‑‑By his award, in Objection Petition No. 17/4 of 1983, the learned Additional District Judge, Haripur (Land Acquisition Judge) enhanced the compensation of different kinds of land after determining the market value of Chahi kind at Rs.17,240 per Kanal; Maira kind at Rs.6,600 per Kanal; Rakkar kind at Rs.5,500 per Kanal and Banjar Jadeed and Qadeem at Rs.2,640 per Kanal. He also changed the classification of Khasra No. 611/2 from Rakkar into Chahi kind. He, however, ruled out the objection regarding the acquisition of land in larger area on the spot out of Khasra Nos. 641, 1292 and 1293. The Land Acquisition Collector, the Government of N.‑W.F.P. and WAPDA, an acquiring department, feeling aggrieved preferred Regular First Appeal No. 19 of 1985 against the re‑classification of a part of the land and also the enhancement of compensation.

2. After hearing the learned counsel for the parties at some length and also reading through the awards drawn by the Collector and the Land Acquisition Judge we are constrained to remark that the award of the Land Acquisition Judge under appeal is not sustainable for reasons that it has not taken care of a statutory provision contained in section 23 of the Land Acquisition Act of 1894 that in determining the amount of compensation to be awarded for land to be acquired under the Act the Court shall take into consideration the market value of the land at the date of the publication of notification under section 4, subsection (1) of the Act. In this case the said notification was published on 24‑7‑1974 while the learned Acquisition Judge had proceeded to place reliance on sale mutations of different kinds of land effected in the years 1979‑80‑81 and

82. There is a reference to some five Mutations Nos. 440, 457, 469, 515 and 570 relating to Chahi kind of land effected in .the year 1980‑81 as made basis of the assessment of compensation A by the Collector in his award but the said aspect of the case was simply ignored and out of those Mutations, Mutation No. 457 one regarding an area of 1 Kanal 18 Marlas was picked up and added to another Mutation No. 302 in respect of 11 Marlas and the average of the price of Chahi kind of land was assessed on the basis of those two notional Mutations. In case of Maira and Rakkar kinds also only two mutations in each case have been made the basis of averages. So, in case of Banjar kind only three mutations have been made the basis of average.

3. Sorry to say, the learned Land Acquisition Judge appears to be oblivious of the provisions of section 23 of the Act whereunder he has to work out the market value at the time of notification under section 4 and has not to make at random pick and choose of distant post notification sales and determine the average market value of the different kinds land. Again Mutation No. 302 vide Chahi kind of land was sold carries the entry that the sale of 11 Marlas land was being effected for construction of a house and as such it was not a sale of land for agricultural purpose. The objectors‑respects were not herein to claim that their land whether Chahi or any other kind was with the potentiality of Abadi that a sale effected by Mutation No. 302 can be relevant to assess its market value. In the context an argument was advanced by the learned counsel for the objectors‑respondents that transactions of lands made after the notification were also relevant and could be taken into consideration at the time of the determination of the market price. He made reference to P L D 1986 Kar. 164 which authority enunciates certain general principles in determining the market price with reference to 1978 SCMR 5 and P L D 1957 Kar.

424. In fact the said authorities were to lay down that evidence about sales or transactions of land with similar situation made after the notification (Section 4) were not to be ignored altogether as those were not inadmissible and those can be taken into consideration along other relevant evidence. There was rather laid down a more elaborate rule that evidence relating to transactions of lands with similar situation as the land acquired made prior to and after the date of notification but not too distant in the past or future were admissible and inference could be drawn from such evidence regarding the determination of the market price at the time of notification. In fact the approved practice is that if there are a sufficient number of sale transactions of land of similar kind and situation at the time or immediately preceding the notification under section 4 i. e. about a year, market price of the acquired land may be worked out on the basis of such average. However, sale transactions of such land effected immediately after the date of notification i. e. some months but not too distantly may also be taken into consideration at the time while assessing the market price of the acquired land. In case of lands with locations of suitability and potentiality of construction of houses, industries etc. with an upward trend in the prices of land and when there is also a gap between the notification under section 4 and the award under section 11 of the Act, Court may take all these factors into consideration in determining the market price.

4. As far the evidence on record is concerned which we had the advantage to scrutinize, we have found that the parties have not adduced proper evidence regarding the sale transactions effected before or after the notification. We have rather found that the objectors‑respondents have only produced evidence from Patwari Halqa to suit their interests while the respondents‑appellants have not pursued their interests to C bring on file proper evidence from the Patwari Halqa. The Court, too, had not perhaps, due to ignorance as it appears, cared to obtain proper evidence in the case regarding‑he determination of market price relevant to the date of notification under section 4 of the Land Acquisition Act, 1894. We have accordingly minded to upset the finding regarding the determination of the market price of different kinds of land by the Land Acquisition Judge in his award.

5. As far re‑classification of the land in Khasra No. 611/2 is concerned we have again faced paucity of pertinent evidence at the relevant date because there was to be adduced evidence that the land of Khasra No.611/2 has been converted into Chahi kind of land at the time of notification under section 4 i. e. on 24‑7‑1974 and for that the evidence in revenue record before and after the date of notification under section 4 was to be adduced. Besides if it is proved that the land was not converted into Chahi kind at the relevant time there was to be given a determination by the Court in the light of evidence on record if by the inclusion of Khasra number in the tube‑well Chakbandi the Land has assumed the potentiality of Chahi kind and that compensation thereof was to be assessed for the Chahi kind of land or near that. We would accordingly upset the finding of the Court of land Acquisition Judge on this point.

6. Last we come to the objection regarding the measurement of the land. Per Girdawar‑circle there was found an area of 5 Kanals 3 Marlas in Khasra No.641, 1 Kanal 19 Marlas in Khasra No. 1292 and 5 Kanals 6 Marlas in Khasra No. 1293 under the metalled road on spot measurement while there has only been acquired 19 Marlas in Khasra No. 1292/2, 4 Kanals 19 Marlas in Khasra No. 1293/2 and 2 Kanals 1 Marla in Khasra No. 641/2 for the construction of the road. There comes out a difference of 4 Kanals between the spot measurement under the road and the area acquired for the road. The demarcation was conducted by the Girdawar circle on the direction of the Court no doubt, in the absence of WAPDA to whom no notice was given. Nonetheless his evidence cannot be E conveniently brushed aside in the absence of evidence to the contrary under a short reasoning as advanced by the learned Land Acquisition Judge that the witness has measured the affected area and not the acquired area. There has not been filed cross‑objections but since we have minded to remand the case and have found that the issue has not been properly dealt with during the proceedings by the learned Acquisition Judge, we would also upset his finding on the point, in the interest of justice.

7. In view of what has been stated above, we accept this appeal, set aside the award of the Land Acquisition Judge as a whole and F remand the case to him for de novo trial in accordance with law. We leave the parties to bear their own costs. A. A. Case remanded.