P L D 2000 Supreme Court (AJ&K) 43 (PLP)

BASHARAT AHMAD SHAIKH, J.-- These two cross-appeals ,relate to rate of compeation for land acquired by the Government for Upper Chatter Housing Scheme. The Collector assessed the market value of the lanat the rate of rupees one lac enty six thousand per Kanal buthe affected persons, appellan Muhammad Miskeen and others, aimed that the market value ofhe land was rupees six lacs per Kanal. The District Judge upheld'the rate determined by the Coector and rejected the reference filed by the affected personsThe High Court partly acceptedhe appeal filed by the affected persons and fixed rupees three lacs as the market value per Kanal besides fifteen per cent. coulsory acquisition charges. Both the parties, the Government as .well as the affectees, have filed separate appeals after obtaing leave of the Court.

2. A housing scheme known as the UppeChatter Housing Scheme was approved by the Government for which land measuring 423 Kanals was acquired in 1979. The aforesaid using scheme is located in Upper Chatter, which is part of village Chatter Domel within the Municipal Limits of Muzaffarabad. appears that when large tracts of land were acquired for UppeChatter Housing Scheme a piece of land belonging to Muhammad Miskeen and others situated in village Ambor, which adjoins village Chatter, was physically taken possession of, by the Public Works Department but was not acquired. This piece of land measureshree Kanals and nine Marlas and is under survey No.582. As stated, owners of the land under purence made representations to the Government praying that they. may be paid compensation but their efforts did not bear fruit. Ultimately they approached the learned Mohtasib who inquired into the matter and issued a direcon on 15th April, 1992 that land measuting three Kanals nine Marlas under survey No.582 situated in village Ambor may be acquid by issuing a notification under the Land Acquisition Act. This direction led to acquisition proceedings mentioned above. . The learned counsel for Muh ad Miskeen and others, Syed Musaq Hussain Gillani, vehemently contended that the market value of the land in dispute works ouat rupees six lacs per Kanal in light of the evidence produced by his clients. He submitted that the land in dispute is part of the Upper Chatter Housing Scheme where price of one Kanal plot is not less than six lacs per Kanal. He relied on the oral and documentary evidence produced by his clients. Documentary evidence consists of three sale-deeds, Exhs.PA, PB and PC. The learned counsel relied on the cases reported as Faiz Akbar Khan and others v. Azad Government and others 1996 SCR 132 and Azad Governme and 2 others v. Mst. Razia Farooqi and others 1996 SCR 136 in which it was held by this Court that while assessing the market value of the acquired land the use to which it can reasonably be put in future has also to be considered. He also relied on the following cases in support of his contention. Government of Pakistan v. Hamid Akhtar PLD 1988 SC(AJ&K) 6 in which the price ofmall residential plots was duly considered while assessing the market value of the land in dispute which itself consisted of small residential plots in a Mohallah of Koth City. Comdr. Faiz Ellahi and 3 others v. Multan Improvement Trust, Multan and anotr 1992 CLC 267 in which it was held by the Supreme Court of Pakistan that Court has power to examine the inflationary trend andepreciation in currency. Islamia University, Bahawalpur through its Vice-Chancellor v. Khadim Hussain and 5 others 1990 MLD 2158 in which a Division Bench of the Lahore High Court consider a sale-deed in respect of agricultural land in the contiguous chak while determining the mark value of the agricultural land. Haji Muhammad Yaqoob and antr v. Collector Land Acquisition/Additional Deputy Commissioner. Peshawar 1997 SCMR 1670 and Province of Punjab through Collector. Bahawalpur and another v. Abdul Majeed and 98 others 1997 SCMR 1692. It was held in both theases that one year's average sale price in the, rrievant vicinity is only one of the relevant factors for consideration in determining the market value of the acquired land and if there is other evidence on record to estabsh potential value of acquiredand at the higher rate it has to be duly considered.

4. Kh. Atta-Ullah, the learned Additional Advocate-General, arguing on behalf of the Azad Government and other functionaries, vehemently contended that under section 23 of the Land Acquisition Act the market value of the acquired land at the date of publication of notification under section 4 has to be taken into account. He stated that land sold through Exh.PA was a small plot which was sold sixteen months later and, therefore, could not be brought under consideration. He submitted that land sold through Exh.PB is meant for a Petrol Pump which is a commercial use while the land in dispute is adjacent to the Upper Chatter Housing Scheme. He submitted that Exh.PC was not relevant because it was executed two years after the notification under section 4 and relates to Chela Bandi which is distant from Ambor where the land in dispute is situated. He submitted that land measuring five marlas only was sold through this sale-deed which is not relevant for biggetracts of land. It was vehemently contended by the learned Additional Advocate-General that price of the disputed land has incased many times due to the setting up of the Upper Chatter Housing Scheme and if there had been no mistake the owners have beepaid compensation assessed in 1979 which was in significant amnt as compared to the compensaon assessed by the Collector at the rate of rupees one lac twenty six thousand. The learned Additional Advocate-General relied on the case reported as Muhammad Sharif and 7 others v. Azad Government and another 1998 CLC 2052 in which it was laid down as llows. "The principle of law is that transaction taking place after the notification under seion 4 must be proved to be bonafide and the onus to prove it is on the landowners. Sale-deed Exh.PW by which land measuring 7 Marlas is stated to have been sold for rupees fifty thousand was executed more than six months aer the notification. We have gone through the evidence and find that about Exh.PW there is no convincing evidence on the record that it was a bona fide transaion".

5. The learned Addition Advocate-General also vehemently contended that all the three sale-deeds Exhs.PA, PB and PC cnot be considered because the persons who executed them have not been produced as witnesses to find out whether the sale was bona fide or not.

6. Adverting to the evidence, it may be pointeout that it was mentioned in the reference filed by Muhammad Miskeen and others that the land in dispute is situated in Upper Chatter Housing Scheme but from e record it :ranspires that the land in dispute is not situated in village Chatter PGD but is situated in village Ambor. In his Court statement Abdul Hamid, one of the witnesses produced by Muhammad Miskeen and others, stated that the land in dispute w 10 to 20 yards from Upper Chatter Housing Scheme. He also stad that the land is adjacent to road and school. Another witness Altaf Ahmad also stated about the location of the land in dispe that the land was adjacent sthe Upper Chatter Housing Scheme. It follows that the land in spute is not in tile thick of the Housing Scheme but is ,on its periphery. Another fact which needs to be pointed out is that hammad Miskeen and others have filed appeal in this Court for upward revision of the compensation and they are demanding rupees six lacs per Kanal but when Muhammad Miskeen appeared in the Crt he stated that the price ouand in Chatter Housing Scheme was rupees four lacs per Kanal.

7. Exh. PA is. a sale which was executed on 8th November, 1993 while notification under section 4 was issued on 21st July, 1992 which means that Ex. PA was executed sixteen months after the notification. Through this sale deed Umer Din S/o Faqir Muhammad sold land measuring sixteen Marlas situated in village Chatter Domel to one Muhammad Miskeen S/o Hashim Ali for an amount of rupees five lacs thirty five thousand. It is stated in the sale deethat the land sold through it was not part of any Government scheme which means that it is not in the Upper Chatter Housing Scheme. Admittedly land in the Housing Colony has more value than out side it. As already noted, aording to Muhammad Miskeen himself, the land in the Chatter Housing Colony was selling at rupees four lacs. In this view of the matter it is significant that.a sum of ruppes five lacs thirty five thousand was paid for sixtn Marlas of land which was admittedly of lesser value than lanin Upper Chatter Housing Scheme.-As mentioned above it has been held in Muhammad Sharif's case that when a sale-deed executed after the notification under section 4 of the Land Acquisition Act is produced for being considered while determining the rate of compensation it is incumbent to prove that the sale-deed was a bona fide. It was also held thaburden of proving bona fides was on the landowner. In the prest case no -such attempt has been made. Muhammad Miskeen was particularly asked in cross examination as to whether the executanof Exh.PA was alive and he replied in the affirmative but he w not produced to prove bona fides. It was also pointed out in e cross-examination that price of the land was not paid in presence of the Sub-Registrar. We have gone through Exh.PA and findhat even part payment was not de before the Sub-Registrar and it is recited in the sale-deed that sum. of rupees five lacs thirty five thousand had already en received before execution of the sale-deed. In our opinion has not been proved that the price mentioned in Exh.PA, executed sixteen months after the date of notification under section was in fact paid, the said sale deed has to be excluded from nsideration.

8. Exh.PB was registered on 28th June, 1992, just before the issuance of notificaon under section

4. Through this sale-deed land measuring three Kanals situated in village Chatter Domel was sold to the department known as "Behbood Fund and Group Insurance Trust for Non-Getted employees of the. Azad Government of Jarhmu and Kashnur"or sum of rupees eighteen lacs. This is a . genuine document because it was executed before thnotification under section 4 and also because money has been paid out of welfare and group insurance fund administered by the vernment. However, land sold through this sale-deed has nothing in common with the land in dispute. The reason is that the land sold through Exh.PB is situated on the National Highway leading to Rawalpindi' a fact which isuly mentioned in the judgment of the High Cout. Contents of Exh.PB also contain specific recit that it is on the National Highway. It is stated that a Petrol Pump has been installed over the land sold through this sale-deed. The Petrol Pump is adjacento commercial banks and is locad in the posh area of Muzaffarad city while the land in dispe is situated in village Ambor. Therefore, sale-deed Exh.PB cannot be considered for determini compensation in the present case.

9. Exh.PC was registered on 14th June, 1994 almost two years after notification under section

4. Under the said sale-deed'land measuring five Marlas situated in village Chela Bandi was sold for a sum of Rupees one lac.ased on this sale-deed price of land comes approximately to rupees four lacs per Kanal in Chela Bandi which is situated in northern periphery of Muzafarabad cy. Piece of land sold through is sale-deed is only five Marl which as is well-settled, is not an accepted basis fox determining compensation of larger tracts of land. Another factor is that it was executed two years afr notification under section 4 in respect of the land in dispute but there is nothing on recorto show that it was a bona fidtransaction. On this point we have already referred to Muhammad Sharif's case.

10. The High Court while acceptin& the appeal filed by Muhammad Miskeen and others, enhanced the rate of compeation from rupees one lac twen six thousand to rupees three lacs per Kanal. The relevant observations may be reproduced below:-- "The question for determinion now. arises as to how muchifference in, value of the lanwould be or should be under the circumstances? The land in dispute has remained with' the acquiring department since passing the first award in 1979. The owner of the land has not derived taken any benefit from the land, as against that the acquirinagency has allotted the land . in plots for construction purposes to different allottees. Thus, the land though brought under the use by the acquiring agency, could not be notified 'nor awarded, either due to inadvertence, negligence or whatever the causmay be, but it was treated and used in the similar way, as other land acquired through the proper award. Had the land been awded then the price of the lanwould have been the same as fixed for other land.' But the fact remains that the owners did not use the land, they are not paid the price, they had to under the litigation for the land or for its compensation and it w due to the litigation that the land is awarded. Had they beepaid in time, they could have utilized the amount. The rupee since 1979 has devalued exorbitantly and the cost of living has abnormally increased. Keeping this in view, the proper . course would be to adopt a moderate course. The course would be baseon the principle of ~ (,~Jo.~l~y ". Thus, half- of -the value of the land transferred through Exh.PB and Exh.PA, which comes to rupees three lacs per Kanal besides compulsory acquisition charges, is the proper and just value of the land.

11. It will be seen that the High Court brought under consideration Exhs.PA and PB. Ekh.PB in respect of the Petrol Pump which is on the National Highway and this fact wasentioned in para. 6 of the judent of the High Court. Still the High Court made it a basis fodetermining compensation in the present case which is an obvio error. Apart from that the principle of " ! s 1~' y " is not applicable to the present case because price has to be determin on the basis of evidence produced by the parties in order to determine the market value. Thus, the appeal filed by the Government has force and the judgment of the High Court has to be vacated.

12. It also follows from the above that the appeal filed by Muhammad Miskeen and others also has no merit. The rate of compensation awarded to them by the High Court has turned out to be unsustainable, therefore, its further enhancement is out - of, question. As already seen E Muhammad Miskeen and others have-notroduced evidence to substantiate their claim.

13. Therefore, Civil Appeal No.81 of- 1999 filed by Muhammad Miskeen and others is dismissed while-Civil Appeal No.82 of 1999 titled Azad Government and others v. Muhammad Miskeen and others is accepted and the judgment of the High Court is vacated. The result is that the judgment passed by the District Judge shall stand restored. H.B.T./8/SC(AJ&K Order accordingly THE END