1988 PLP 1085 (MLD)

MUNIR A. SHEIKH, J.‑‑This appeal is directed against the judgment and decree dated 14‑1‑1987, passed by learned Senior Civil Judge, Sargodha on reference under section 18 of the Land Acquisition Act, 1894.

2. The facts giving rise to this appeal briefly stated are that land measuring 30 acres 2 kanals and 19 marlas situated in village Sahiwal, Tehsil Shahpur, District Sargodha, was acquired through notification published on 10‑5‑1978 for construction of Sahiwal Drain in Project No:II‑B. Out of this total land, land measuring ` 20 acres 5 kanals 13 marlas was cultivated and the remaining measuring 9 acres 5 kanals 6 marlas was uncultivated. In this land was‑included the land of the present appellants measuring 35 kanals. The present dispute relates to' this 35 kanals: of land owned by the appellants. The .Collector determined the market price of the cultivated land at Rs.7,000 per acre whereas uncultivated land was assessed at Rs.3,500 per acre. He delivered the award on 20‑12‑1981. 15% compulsory acquisition charges was also allowed alongwith 8% compound interest w.e.f. 1‑4‑1976 i.e. for 68 months and 19 days. The appellants feeling aggrieved made an application under section 18 of the Land Acquisition Act to the Collector for making reference to the Court for enhancement of the amount of compensation of the acquired land. The Land Acquisition Collector made reference to the Court. In the application under section 18, the appellants hated that the compensation awarded by the Collector was inadequate and it was wrongly assessed. It was pleaded that through mutation No.74;4 sanctioned on 40‑6‑1979 land measuring 36‑1/2 kanals was‑ purchased for an amount of ts.3,22,200 and the land in dispute was more valuable and this mutation was not taken into consideration at the time of making the assessment. He also complained that no compensation was awarded to the appellants for 26 trees standing on the land and they were also not given any compensation for standing crops. He also claimed compulsory charges at 25%. According to the appellants hey were entitled to compensation at Rs.10,000 per kanal. This reference was contested by the respondents by filing reply. It was stated that the assessment of compensation was correctly made and that the compensation of the land was inclusive of the compensation of the trees and the standing crops. It was denied hat the appellants were entitled to get compensation at the rate of Rs.10,000 per anal. The learned Trial Court framed the following issues:‑ (1) Whether the award dated 20‑12‑1981 is inadequate as regards compensation allowed to the petitioner? OPP. (2) Whether the petition is time‑barred? If so its effect? OPR. (3) Relief.

3. In support of their case the appellants produced Muhammad Amin Patwari as P.W.1 who also proved EX.Pl i.e. average sale‑price of five years from 1978 to 1982, Mian Allah Bakhsh, Record‑keeper, Town Committee, Sargodha as P.W.2 who proved notification Ex.P2 dated 13‑3‑1952 regarding limits of Town Committee, Sahiwal and also map of Hadood Committee Ex.P3, Mian Muhammad Nawaz P.W.3, Noor Din PWA, Muhammad Ilyas P.W.5, Muhammad Amin P.W.6 and one of the appellants namely Mian Sutan Ahmad examined himself as P.W.7 and the other Rana Noor Muhammad examined himself as P.W.8. Apart from this oral evidence, documentary evidence in addition to EX.Pl to Ex.P3, copies of mutation No.7464 Ex.P4, copy of mutation No.7694 Ex.P5, copy of mutation No.7712 Ex.P6, copy of mutation No.7976 Ex‑P7, copy of mutation No.8273 Ex.P8, copy of mutation No.8452 Ex.P9, copy of mutation No.8652 Ex.P10, copy of Jamabandi for 1978‑79 EX.P11 and award in dispute was Ex.P

12. On the other hand, the respondents examined Tariq Mahmood, Collector Land Acquisition Scarp Wapda, Faisalabad as D.W.1.

4. After examining the evidence of the parties, the learned trial Court held under issue No.1 that the appellants led abundant evidence that compensation assessed by the Collector at Rs.7,000 was inadequate and much lower than the actual market value of the property. It was held that the issue stood proved and as such it was decided in favour of the appellants. He however, failed to determine as to what was the exact amount of compensation and at what rate it was to be awarded. Under issue No.2 it was held that the reference was barred by time, therefore, issue No.2 .was decided against the appellants and resultantly the reference was dismissed.

5. Learned counsel for the appellants relying upon judgment reported as Government of West Pakistan (now Government of N.‑W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmed Ali Jan and others P L D 1981 S C 516 maintained that once the reference was made by the Collector to the Court, the Court could not go behind it and dismiss the same as barred by time.

6. We have gone through this reported judgment in which it was held that the question as to whether application under section 18 of the Land Acquisition Act was made beyond prescribed period of limitation, was to be resolved by the Collector before sending reference to the Court and once the Collector had sent reference to the Court then the Court could not embark upon an enquiry into question of limitation and dismiss the same as barred by time. This judgment fully supports the argument of .the learned counsel for the appellants and the findings of the trial Court on issue No.2 thus cannot be sustained and pre liable to be set aside on this short ground. In view of this legal position we need not be detained in discussing the evidence f the parties led on, issue No.2 on the question as to whether the appellants were present at the time of announcement of the award or that they were served with a notice about the delivery of the award or not in order to compute the period of limitation. For the foregoing reasons, findings on the issue No.2 are hereby, set aside and the said issue is decided in favour of the appellants.

7. The finding of the trial Court on issue No.1 are also not maintainable. We have considered the evidence of the appellants. The notification under section 4 of the Land Acquisition Act was published on 10‑5‑1978. All the mutations from B Ex.P4 to Ex.P11 produced by the appellants relate to sales made after this date therefore, they were not relevant for determining the market price of the' property at the time of publication of the notification. So far as Ex.P1 average sale price of five years is concerned, the same is also not relevant for similar reasons, because except the sales mentioned at serial numbers 1 to 11 all other sales included therein were made during five years subsequent to the publication of the said notification. On the basis of this evidence which did not have any bearing upon the real question to be determined i.e. market price of the land at the time of publication of the notification i.e. 10‑5‑1978 it could not be held that the appellants succeeded in proving the issue No.1 and as such the said issue could not have been decided in favour of the appellants. The findings on issue No. l cannot therefore, be maintained and we set aside the same.

8. The market value of the land at the time of the publication of notification under section 4 of the Land Acquisition Act is pivotal in determination of the amount of compensation, which should have been reflected in the issue itself so that the parties must have clearly known as to what kind of evidence they had to produce. The issue already framed is not proper which as framed is highly misleading. The issue should have been framed in the clear terms as to what was the market price of land at the time of publication of notification under section 4 of the Land Acquisition Act. Due to incorrect form of issue No.1, we feel that the parties have not been able to bring on record the relevant evidence regarding market price of the land at the time of publication of the notification. For the foregoing reasons, the appeal is accepted. The judgment and decree of the, learned trial Court dated 14‑1‑1987 is set aside and the case is remanded to the learned Senior Civil Judge, Sargodha for framing proper issues regarding market price of land at the time of publication of notification under section 4 of the Land Acquisition Act and as to what was the compensation to be awarded to the appellants and dispose of the reference after recording evidence of the parties in accordance with law. There will be however, no order as to costs. Tire parties are directed to appear before the learned Senior Civil Judge, Sargodha on 15‑5‑1988. The trial Court is directed to dispose of the objections within six months from E 15‑5‑1988 and report compliance. AA./N‑128/L Case remanded.