P L D 1988 Supreme Court 32 (PLP)

ASLAM RIAZ HUSSAIN, J.‑‑This order will dispose of (1) Civil Petition for Special Leave to Appeal No. 229‑P of 1983 filed by Malik Aman and others; and (ii) Civil Petition for Special Leave to Appeal No. 230‑P of 1983 filed by Muhammad Yousuf and others, as both of them are directed against the same judgment of the High Court and similar point is involved therein.

2. Facts giving rise to these petitions, briefly are, that land of the petitioners was acquired by the Government of N.‑W.F.P. for the construction of Tarbela Dam. Notification under section 4 of the Land Acquisition Act, 1894, was issued on 3‑5‑1967 but award was announced about 7 years later on 21‑1‑1974, fixing the value of various types of lands acquired by the Government. The petitioners being dissatisfied with the award took recourse to proceedings under section 18 of the Land Acquisition Act, 1894 and claimed higher compensation for their property. It was resisted by the WAPDA. The parties led their evidence and the learned Court held that the Collector had undervalued the property and awarded compensation at higher rate. The petitioners then filed an R.F.A. before the Peshawar High Court, where the main contention urged was that while Notification under section 4 for acquisition of their land was issued on 3‑5‑1967, the award was announced after a lapse of 7 years, during which period prices of their lands had risen sharply. It was urged that while determining the market value of the land under section 23 of the Land Acquisition Act, the learned lower Court had not kept this fact in view. The appeal was, however, rejected and feeling aggrieved the petitioners have filed the present petitions for leave to appeal.

3. Before us the main contention urged was that while fixing the market value of the land under section 23 of the Act, the high rise in prices of land during the long period taken by the Collector in announcing the award ought to have been considered as one of the 'factor' for determining the value. The counsel for the respondents on the other hand, submitted that this was not one of the factors which was required to be considered by section 23 of the Act.

4. We have carefully considered the contentions of the learned counsel. This Court has observed in Sub. Haider Zaman and others v. Government of N.‑W.F.P. and others 1987 S C M R 465 at p. 467 that matters mentioned in section 23 of the Act as factor to be considered while determining the market value of the property acquired are not exhaustive. In other words factors other than those mentioned in section 23 can also be taken into account for the said purpose. Although market value of the land is normally to be taken as existing on the date of publication of Notification under section 4(i) of the Act, yet it is common knowledge that for determining the market value the Courts often look at the prices on which similar lands were sold during the preceding 12 months, and similarly in A other cases factors bearing on the value of the same land in future e.g. the "potential value" of the property are also taken into consideration. It has been observed in Fazal‑ur‑Rehman and others v. General Manager, S.I.D.B. and others P L D 1986 S C 158:‑‑ "There are other factors which have to be taken into consideration e. g. land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, but also by a reference to the usage to which it is reasonably capable of being put in future; and the market value is the potential value of the property at the time of requisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time."

5. It is, therefore, evident that the factors for determination of the market value of the land proposed to be acquired are not restricted only to the time of issuance of the notification under section 4 of the Land Acquisition Act or any period prior to it, but can also relate to the period in future (i.e. to period after tte issuance of notification under section 4 of the Act). It is for this reason that the "potential value" of the land i.e. the use to which it can be put in future, has in a large number of cases been held to be a relevant factor. As such the fact that long period has elapsed between the issuance of notification under section 4 of the Act and the announcement of the award coupled with the fact that during that period the prices of land or the property in question have arisen sharply, is a factor which ought to and should have been taken into account while determining the value of the land in dispute for the purpose of compensating the owner. This view is supported by the observation of this Court in Sub. Haider Zaman and others v . Government of N.‑W.F.P. and others 1987 S C M R

465. In that case also land had been acquired for Tarbela Dam and the notification had been issued on 3‑5‑1967 and the award was announced 7 years later (probably by the same order which was challenged by the petitioners in the present case). In other words facts in that case were the same as in the present case. The contention raised in that case also was that the award had been announced without taking into consideration the factor of passage of a long period of time between the publication of the notification under section 4 of the Act and the announcement of the award which had resulted in great loss, to the petitioners (in that case), due to a steep rise in the prices of land during that period. This contention was, however, rejected on the ground that the petitioners (in that case) had not pressed this contention for the reason that it had not laid basis for the said contention by producing the relevant evidence, including the evidence showing that the prices had, indeed, risen during the 7 years, it took the Collector to announce the award. The relevant portion of the said judgment may be reproduced for facility of reference:‑‑ " ............... The precise contention which though wide but interesting is whether it was justifiable for the Courts below when assessing fair compensation under section 23 of the Land Acquisition Act to proceed on the basis of the market value on the relevant date 3‑5‑1967, when the same is being made in fact seven years later without taking into account the inflationary factor and also the fact that the petitioners were also deprived of the use of the money for all these years, notwithstanding the law that section 23 is not exhaustive of the factors to be examined. Although the point was raised before the lower forums but it seems was not pressed for obvious reasons that as basis was laid by producing all the relevant material including the inflationary index and its co‑relation with the increase in the land prices in the locality concerned or similar locality " It is clear from the above observation that if the petitioners in that case had laid a foundation by producing some evidence that during this 7 years taken by the Collector for announcing the award, the prices of land had arisen sharply, this Court would have taken that fact into account for determining the market value of the land for the purpose of compensating the persons whose land had been compulsorily acquired.

6. This Court also took this factor into consideration while determining the compensation in the case of N.‑W.F.P. through Collector Abbottabad Land and others v. Haji Ali Asghar Khan and others 1985 S C M R

767. The relevant observation is as follows:‑‑ " .......... We, therefore, think that even on the criteria laid down by the learned Senior Civil Judge and upheld by the High Court for working out the rate at which compensation should be allowed and also taking into account the fact that the notification of the acquisition was issued in 1978 and the award made some two years later any mere was an unwary trend .in the prices or the land during the period, the value of the land for purposes of payment of compensation should, in our opinion, be fixed at Rs.25,000 per Kanal. We would, therefore, award compensation at the rate of Rs.25,000 per Kanal for the land acquired in this case." (Underlining is ours)

7. In the present case which is identical to the case of Sub. Haider Zaman v. Government of N.‑W.F.P. 1987 S C M R 465 the petitioners has not brought any evidence on the record to show as to how much prices of the land in question had arisen during the years taken by the Collector in announcing the award. As such, we have no basis for determining the amount of increase in the compensation to which the petitioners are entitled. Had such evidence been brought on the record by the petitioners we are sure that the learned Collector himself or, in any case, the learned trial Court anci the High Court would have taken this factor into consideration while determining the market value of the land for the purpose of awarding compensation to the petitioners. But since such evidence is not available on the record we have no option but to dismiss the petitions, which are consequently dismissed. No order as to costs. Petitions dismissed. S.Q./A‑117/S