P L D 1969 Azad J & K 46 (PLP)

MUHAMMAD SHARIF, A. C. J.

‑ This is an appeal against the judgment and decree of the learned District Judge, Mangla Dam Affairs, Mirpur, by which the reference applications of the appellant and the respondents were dismissed. The facts of the case are that the lands of Mohra Daulu were acquired by the Government and the Collector fixed compensation at the following rates : Rs.465 P. K. in case of Hail land Rs. 419 P. K. Maira Awal Rs. 287 P. K. Maira Doem Rs. 225 P. K. Thangar Rs. 112 P. K. Banjar Rs. 56 P. K. Ghair Mumkin Rs. 581 P. K. Abadi Deh. Both the owners as well as the Government being dis satisfied with the prices assessed by Collector I Mangla Dam Affairs, Mirpur, applied for references. The learned District Judge by his judgment and decree dated 7‑3‑1966, maintained the rates of various qualities of lands fixed by the Collector and dismissed both the reference applications. It was argued by the learned Government Advocate appearing on behalf of the appellant that the respondent's witness Sardar Jehan Dad Khan Revenue Assistant and Chairman of the Assessment Committee Mangla Dam Affairs had recommended that the sale‑deed Exh. P. A. produced by the Government but also got exhibited by the respondents as D. A., be made the basis of the assessment of the compensa tion of the lands of Mohra Daulu but the learned District Judge has ignored this sale‑deed. The sale‑deed variously exhibited as P. A. and D. A. pertains to land situate in village Mohra Daulu. By this sale‑deed dated 12‑8'‑1959 Qaim Din sold 10 Marlas of Hail land in favour of Sarwar for Rs.

200. Kh. Ali Muhammad, the then District Judge of Mangla Dam Affairs, relied on this sale‑deed and worked out the prices of the various qualities of lands in accordance with the produce index and assessed the compensation thereby. On appeal the High Court set aside the judgment and decree of the learned District Judge on the ground that the Court had failed to pass an order of consolidation of the two reference applications filed by the Government and the owners and had read the evidence on one file as evidence in the other file which procedure was unwarranted by law and remanded the case back to the reference Court for recording the evidence afresh in any of the file after passing the order consolidating the two reference applications. We have gone through the statement of Sardar Jehan Dad Khan. He stated that keeping in view the location of the land sold by Exh. P. A., its produce and its distance from the village he reached the conclusion that the sale‑deeds Exh. P. A. and Exh. P. B. which were dated Z4‑3‑1955 could not be relied upon for assessing the market value of the land. The sale‑deed Exh. P. B. was made in the year 1955 whereas the notification under section 4 of the Land Acquisition Act was issued on 30‑8‑

59. The sale‑deed Exh. P. B. was considered too remote in time and, therefore, discarded. Keeping all the circumstances into view the witness stated that the Assessment Committee which was also helped by the Revenue Assistant of the WAPDA in the inquiry, found that the rate of Rs. 400 per Kanal should not be taken to be the price of Hail land but this rate should apply to land Maira Awal which is one step below Hail land and the prices of the various qualities of lands should be worked out in accordance with the produce index keeping in view the rate of Rs. 400 per Kanal for Maira Awal. The witness stated that they had also taken into consideration the award made for the lands of village Balah Gala, a neighboring village, but had assessed the price of Rs. 400 per Kanal of Maira Awal independently. The witness had stated that the Assessment Committee assessed Rs. 400 per Kanal as the price of Maira Awal and not of Hail as the learned Government Advocate wants us to believe. The Collector, while drawing up his award rejected the sale deeds Exh. P. A. and Exh. P. B. because Exh. P. B. was too remote in 'time and Exh. P. A. was a solitary sale deed which could not be formed the basis of assessment of the compensation. He then adverted to an award which was drawn up by Collector II of the neighboring village Balah Gala. The rates of village Balah Gala as given in the award of Collector No. II were as follows:‑‑ Rs. 465 P. K. for Hail Rs. 419 P. K. for Maira Awal Rs. 287 P. K. for Maira Doem Rs. 225 P. K. for Thangar Rs. 112 P. K. for Banjar Rs. 65 P. K. for Ghair Mumkin Rs. 681 P. K. for Abadi Deh. The learned District Judge in his judgment under appeal also adopted the same rates which were contained in the award of village Balah Gala. The learned District Judge has rejected both the reference applications. The Government came up in appeal but the proprietors of village Mohra Daulu did not file an appeal, therefore, no question of enhancement of the rates awarded by the learned District Judge arises. We have only to look into the appeal of the Government for reduction of rates if they can be so reduced legally. It was argued by Mr. Saraf learned counsel for the respondents that the Government representative had recommended Rs. 419 for Maira Awal and Rs. 465 .for Hail and so on and, therefore, the Government was estopped from challenging these rates and there could be no reduction made in these rates. Learned counsel for the respondents also argued that in assessing the market value the potential value of the land acquired should also be kept in view. He also cited two rulings, A I R 1936 Lah. 599 and A I R 1935 Rang.

157. His argument was that the land had been acquired by the Government for the construction of the New Mirpur Town and that the land had a potential value for being used for the construction of houses arid that this factor should also be kept in view. While assessing the market value of the acquired land, the use to which the land is to be put is quite irrelevant and cannot be taken into consideration in assessing the com pensation. The principle on which market values are determined is that the owner is entitled to the value of the property in its actual condition at the time of expropriation notice with all its existing advantages and with all its future possibilities excluding such advantages as may arise on account of any scheme for the purpose of which the property was being acquired. Such advantages as may arise on account of any scheme for the purpose of which the property was being acquired are to be excluded. In A I R 1935 Rang. 157 cited by the learned counsel for the respondents the facts were that land had been acquired for the purpose of extend ing a village site and it was in close proximity to the village and, therefore, it was considered not unreasonable to suppose that if it is to be acquired for the purpose of increasing the area of the village on which buildings are erected, the appellant would be able to sell the land or part of it for a like purpose. Extending the area of a village or Town is one thing while the construction of a new Town is quite another thing. In the case before us the lands of village Mohra Daulu were acquired by the Government for the construction of a New Town. If the Government had not decided to construct a New Town there would have been no potential value for the lands of this village except its use as agricultural land and the lands could not have been used or offered for sale for use as building sites. If the lands had been in close proximity to an extending town, it could be e said that the lands had potential values as building sites in case the area of the town was to be increased and extended In assessing potential value the use to which the lands would be put is not to be taken into consideration because the advantages arising out of the scheme for the purpose of which the property was being acquired are to be excluded. This view has been taken by the Assam High Court in A I R 1955 Assam 124 and also by the Madras High Court in I L R 1939 Mad. 532 in which the market value was considered to be the value to the owner in its actual condition at the date of the notification under section 4 with all its then existing advantages and disadvantages and defects and that of its future possibilities but at the same time it was laid down that it is not proper to take into consideration any advantage due to the carrying out of the scheme for the purpose for which the property is acquired. In the case before us what the Collector did was that he rejected the sale‑deeds pertaining to the lands in the village but adopted the rates given in an award drawn by another officer in another village (Balah Gala). The learned District Judge also adopted the rates given in the award of village Balah Gala. He did not assess compensation on the basis of any evidence before him. The legal position is that a judgment not inter partes in Land Acquisition Reference and relating to land situate near the land in question is not admissible in evidence either as an instance or one from which the market value of the land in question can be inferred or deduced. Such a judgment cannot obviously fall under sections 40 to 43 or under section 11 or section 13 of the Evidence Act. It is well settled that an award made by a Land Acquisition Officer is not an admission binding on Government for the purpose of a Reference under section 18 of the Land Acquisition Act. The Land Acquisition Officer occupies no better position than that of an agent of the Government for the purpose of making an offer. The offer may be accepted or rejected by a claimant, who if dis satisfied with it may ask for a reference. When the matter comes before the Court on such a reference it is the Court who has to determine the question of valuation on evidence and evidence alone. The award thus being a mere offer; it cannot become evidence in another case in which different parties and different properties are concerned. The Act gives the Government the party acquiring the land, also the right to go up in reference which means that there had been no estoppel against the Government. The Government is free to challenge the rates awarded by the Collector as the other party can. The learned District Judge was wrong in adopting the rates of lands Liven in the award of another village where the parties were different and the properties were also different. JD He should have decided the case on the basis of evidence and evidence alone which has not been done in this case. There are three modes of valuation (a) the price fixed should have relation to the price paid within a reasonable time in bona fide transaction of land acquired or adjacent to the land acquired which possessed similar advantages ; (b) the number of years' purchase of the actual or immediately prospective profits of the land acquired, and (c) the opinion of the expart. The sale deeds relied on by the Government have been rejected by the learned District Judge Now the only mode left for valuation is the opinion of an expert. Sardar Jehan Dad Khan's statement may be taken as the opinion of an expert. He was a Revenue Assistant and the Chairman of the Assessment Committee. Keeping in view the location, the quality and the produce of the land involved in the sale deed Exh. P. A., he was of the opinion that this sale deed could not form the basis of the valuation as the land was not of average quality. In his opinion, keeping all the relevant things in view, the price of Maira Awal land should be fixed at Rs. 400 per Kanal. We accept his opinion as an expert and hold that the price of Maira Awal land should be fixed at Rs. 400 per Kanal and the prices of all other kinds of lands should be worked out on the basis of the produce index of the village. We accept the appeal and remand the case back to the Reference Court with the direction that prices of the various qualities of the lands of village Mohra Daulu should be worked out with the anchorage price of Rs. 400 per Kanal for Maira Awal. In the circumstances of the case we leave the parties to bear their own costs throughout. Parties have been directed to appear before the District Judge Mangla Dam, Mirpur, on 22‑2‑1969. Announced to the counsel for the parties. S. A. H. Appeal accepted. Case remanded.