1993 PLP 592 (CLC)

Ch. Muhammad Ismail for Respondent No.l Rana Muhammad Arshad Khan AddIA: G. for Respondent No.2. Date of hearing: 1st December, 1992. This judgment will dispose of RFAs. Nos.50/74, 51/74, 52/74, 53/74, 54/74, 55/74, 56/74, 57/74 and 58/74, as they arise out of the same acquisition proceedings and raise common questions of law and facts and are filed against the same consolidated judgment.

2. Briefly stated facts of the case out of which these appeals have arisen, are that the respondent No.2 Land Acquisition Collector, Industries, Department, Government of West Pakistan, Lahore acquired land of the appellants for the benefit of the appellant. Notification under section 4 of the Land Acquisition Act was issued on 21‑8‑1964 and award was given on 30‑6‑1965 wherein compensation was fixed at the rate of Rs.4,000 per acre for levelled land and Rs.2,500 per acre for unlevelled land. Dissatisfied with the compensation worked out in the award given by respondent No.2, respondent No.l in this appeal and owner respondents in other appeals filed objection petitions on the ground that while giving the award, the Land Acquisition Collector has not assessed compensation according to the prevalent market value inasmuch as the acquired land is situated, in between G.T. Road on one side and Railway Line on the other side, within the municipal limits of Lala Musa is an industrial area and covered by Abadi but it has been assessed at a very low price as an ordinary barren and ditchy land which assessment according to the objector was arbitrary. These petitions were contested by the appellant and following issues were framed:‑‑ (1) Whether the compensation assessed by the respondent is insufficient? If so, what is the correct compensation? OPA (2) Relief.

3. In support of their case, the objectors examined six P.Ws. and tendered in evidence a copy of the letter marked as Exh.PW5/1, copies of the yearly assessment of the average value for the village QKaram Shah marked as P.W.5/1 for the adjacent village Khaira marked as Exh.PW5/2 and other adjacent village Thekerian marked as Exh.PW5/3. In rebuttal to the above evidence produced by the objector, the appellant examined only one witness and tendered in evidence copy of the judgment of Civil Court dated 1‑7‑1964 marked as Exh.R1, copy of the mutation Exh.R2, copy of Aks Shajra Exh.R3 and Exh.R

4. P.W.1 and P.W.2 state that they intended to purchase some land from the land which has been acquired in the year 1964 and the vendor demanded Rs.600 per Maria and they intended to purchase it at the rate of Rs.400/500 per Marla. P.W.1 further stated that he purchased some land to purchase this land. P.W.2 stated that as the bargain was not settled so, he did not purchase the land referred to above. P.W.3 did not make any statement which may be relevant for the decision of the matter in issue as he produced a site plan marked Exh.P

8. P.W.4 produced a copy of the letter from the Board of Revenue. He. further produced copy of the assessments for the year prior to the date of notification under section 4 of the Act which are Exh.PW5/1, Exh.PW5/2 and Exh.PW5/3. According to Exh.PW5/1 which is assessment relatable to the revenue estate of Qazi Karam Shah wherein the land is situated, the price comes to Rs.71.43 per Maria. Exh.R1, a copy of the judgment passed by the learned Civil Judge dated 1‑7‑1964 shows that in pre‑emption suit land measuring 12 Kanals and 10 Marlas was obtained for sale amount of Rs.4,735 which would show that price per Maria a month prior to the notification in question was Rs.19 only. The learned Senior Civil Judge, however, did not rely upon the oral evidence produced by the objector and also the documentary evidence except the document Exh.PW5/1 and fixed the market price at the rate of Rs.71.43 per Maria. Hence, the objection petitions were accepted and the market value of the acquired land as fixed by the Collector was enhanced accordingly as per order dated 10‑5‑1974 which has been impugned in all these appeals.

4. Syed Zamir Hussain, Advocate, has appeared on behalf of the appellants in all the appeals whereas Ch. Muhammad Ismail, Advocate has appeared on behalf of the private respondents in all the appeals. Sardar Khalid Mehmood, Advocate and CA. Saeed, Advocate have appeared on behalf of the private respondents in RFAs. Nos. 53 of 1974 and 58 of 1974. Rana Muhammad Arshad, learned Add[. A.‑G. Punjab has appeared on behalf of the respondent No.2 in all the appeals. Learned counsel for the respondents have raised a preliminary objection about the maintainability of the appeals on the ground that the appellant being the company, for whose benefit the land has been acquired, has no locus standi to challenge the impugned orders in these appeals. In support of the arguments, learned counsel has placed reliance on cases of Pir Khan v. Military Estate Officer, Abbottabad and others PLD 1987 SC 485, ICI Pakistan Limited v. Salahuddin and others (1991 SCMR 15) and Iftikhar Hussain and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (1991 SCMR 2191). In all three judgments it has been authoritatively held that the company or the local authorities for whose benefit the land is acquired has no right to challenge the order passed on reference by way of appeal or revision.

5. Syed Zamir Hussain, Advocate, for the appellants while replying to the abovementioned preliminary objections has argued that as the appellant was a party to the reference and as the enhanced compensation is to be paid by the appellant, it being an aggrieved party has a right to challenge the impugned order passed on reference by filing of this appeal. Learned counsel for the appellant however has not been able to cite any judgment in support of his contention and contrary to the ratio of the judgments which have been cited by the learned counsel for respondent No.l. Learned counsel has further admitted that right of appeal is a statutory right and if the statute does not specifically confer a right of appeal, it cannot be exercised. While arguing the merits of the case, learned counsel for the appellant has argued that the learned Senior Civil Judge has committed a serious error of law by enhancing the compensation fixed by the Collector which compensation was fixed or, the basis of sound and judicial reasoning. According to the learned counsel for the appellant, there is a clear violation of the statutory provisions of section 23(1) of the Land Acquisition Act which requires the assessment of the market value at the date on which the notification under section 4 of the Act was issued. It has been argued by the learned counsel that the lower Court has illegally relied upon the document Exh.PW5/1 which does not relate to the revenue estate wherein the land in dispute is situated but relates to the land situated within the municipal area in Lala Musa Town and has illegally not relied upon yearly average calculated by the Patwari Halqa and the judgment Exh.Rl. Hence, has committed an illegality. Learned counsel, however, is not in a position to deny that Lala Musa has been constituted out of the revenue estate of Qazi Karam Shah. Situation of the land being near the G.T. Road and within the municipal limits as well as the Industrial area and the covered Abadi is also not proved to be incorrect and finding of the learned Senior Civil Judge to this effect could not be disproved by the learned counsel for the appellant during the course of his arguments. According to the learned counsel the principle of Land Acquisition Act is that gold is to be given for gold and not gold for the copper. Land in question consists of even and uneven pieces of land but it has been assessed equally and as such a serious error of law has been committed by the learned Referee Court while deciding the question of compensation/determination of the market value of the land in question. As against the above arguments addressed by the learned counsel for the appellant regarding the merits of the appeal, learned counsel for the private respondents have supported the order passed on reference and have stated that keeping in view the situation of the land in question and the potential as well as the evidence produced on the record of the case, learned lower Court has correctly determined the market value for the purposes of payment of compensation to the owners and no interference can bee made with the finding of fact recorded by the learned lower Court. b. Learned AA.‑G. Punjab has also opposed the appeals on the ground of their maintainability and also on merits and has prayed for dismissal of the appeals with costs. 7. 1 have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Preliminary objection raised by the learned counsel for the respondents regarding the maintainability of the appeal is fully supported by the law laid down in cases of Pir Khan v. Military Estzate Officer, Abbottabad and others PLD 1987 SC 485, ICI Pakistan Limited v. Salahuddin and others 1991 SCMR 15 and Iftikhar Hussain and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 S(CMR 2191 referred to above. Merely because the appellant is a party to a reference and compensation is to be paid by it on an enhanced rate in pursuance of the order passed by the lower Court is not a ground for holding that the appellant is entitled to file an appeal against the order in questions, Hence, I hold that the appellant has no locus standi to file these appeals. The same, therefore, are liable to be dismissed on this short ground. 8, Even on merits the appellant has no case. There is no cavil with this proposition that while determining compensation the relevant date is the date of the notification issued under section 4(1) of the Land Acquisition Act and the price of the land sold within one year prior to the date of notification is the e most relevant piece of evidence. But that is not the sole criterion for determination of the market value. An average statement based upon sales of all qualities and of ail situations and the entry in the Revenue Record as to the nature of the land is not always conclusive and the potential of the land as well as the use to which the land is capable of being put is also to be taken into consideration. In the case in hand, the land in question is situated within the municipal limits of Lala Musa and is adjacent to the G.,T. Road on the side and the Railway Line on the other side. There was industrial area nearby and it was near a covered Abadi. Even if, the land was un every it will be much more valuable than the, agricultural land as judicial notice can be taken of the fact that the land which is situate near the G.T. Road and within the municipal committee and nature thereof is urban immovable property it is much more valuable than the agricultural land which is even. Ever ditches near the Abadi particularly within the municipal limits are much more valuable, therefore, while determining question of compensation, the basic requirement is the Objective assessment of the evidence produced by the parties as well as the factors referred to above. Learned lower Court has assessed the compensation strictly in accordance with the aforementioned test and as such it cannot be said that any error has been committed by the lower Court while excluding from consideration the documentary evidence which related to other villages and as such was not relevant and further which related to the land which may not be in the same vicinity and of the same potential value. A compromise decree does not necessarily reflect the exact consideration which has passed between the parties. Hence the same has also been rightly excluded. While interpreting the provisions of sections 23 and 24 of the Land Acquisition Act Supreme Court of Pakistan in case of Maqbool Ahmed Fetehally and others v. The Collector, District Lasbella 1992 SCMR 2342 has held as under:‑‑ "Section 23 of the Land Acquisition Act requires that for determination of compensation, facts to be considered are market value of the land on the date of publication of notification under section 4 of the .said Act, damages sustained at the time of taking possession, on account of severance of such land, affecting other property movable or immovable sufferance of change of residence or place of business and diminution of profits. In addition to market value, the Court shall award a sum of 15% on such market value in consideration of compulsory nature of the acquisition. Section 24 of the said Act further specifies matters which are to be neglected while determining the compensation. It is left open to the Court to determine compensation after taking into consideration factors and criteria mentioned above. No hard and fast rule can be laid own as to what kind of evidence is to be accepted or not because it is dependent on the quality of evidence and peculiar facts of that case. Basic requirement is objective assessment of evidence produced by the parties before the Court in order to determines compensation according to criteria specified in sections 23 and 24 of the said Act. In support of this view reference can be made to the case of Market Committee, Kanganpur v. Rayyat Ali and others (1991 SCMR 572). Normally mutation in 'the record‑of‑rights is final step in the transaction of transfer of title to be considered as conclusive proof unless it is rebutted. It is open to the Court to prefer registered sale deeds as against entry of mutation if the Court is satisfied on the basis of quality of evidence produced before it by the parties. Question of previous sales of land in this context came up for examination in the Supreme Court in the case of Faralur Rahman and others v. General Manager, S.i.D.B. and another PLD 1986 SC

158. It was held that while determining the value of land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the `past sales' should not be taken into account that the value of the land with all its potentialities may also be determined by examining local property dealers or other person's who are likely to know the price that he property in question is likely to fetch in the open market. In this context it has been further observed that it would be useful and even necessary, to examine such witnesses while determining the market price of the land in question, because of the prevalent tendency that in order to save money on the purchase of stamp papers and to avoid the imposition of heavy Gain Tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The `previous sales' of the land cannot, therefore, be always taken to be an accurate measure of determining the price of the land intended to be acquired. Above rule is followed in the case of Province of Punjab through Collector, Sheikhupura v. Akbar Ali and others (199(1 SCMR 899). In the case of Sardar Abdul Rauf Khan and others v. The Land Acquisition Collector, Abbottabad and others (1991 SCMR 2104) question of compensation was considered in the light of future prospects of the land and following principles of law have been laid down for consideration of future prospects of land while determining compensations:‑‑ (i) That an entry in the Revenue Record as to the nature of the land may not be conclusive, for example, land may be shown in Girdawari as C Maira, but because of the existence of a well near the land, makes it capable of coming Chahi land; (ii) that while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered; (iii) that the market value of the land is normally to be taken as existing on the date of publication of notification under section 4(1) of the Land Acquisition Act but for determining the same, the price on which similar land situated in the vicinity was sold during the preceding months and not 6‑7 years may be considered including other factors like potential value etc. In the appeal, under consideration, therefore, keeping in view the factual aspects which have given rise to these appeals and the legal position enunciated above, I am satisfied that the order passed by the learned lower Court for enhancing the compensation is quite valid and lawful and, hence, it cannot be said that the order impugned in these appeals in any manner is illegal. The appeals on merits, therefore, are also liable to be dismissed. Resultantly, these appeals have no force. The same are, therefore, dismissed with costs throughout. A.A./N‑119/L Appeals dismissed.