1988 PLP 1276 (MLD)

MUNIR A.SHEIKH, J.‑‑This appeal is directed against judgment and decree dated 17‑3‑1987, passed by the learned Senior Civil Judge, Sialkot on reference under see ion 18 of the Land Acquisition Act, 1894.

2. The facts of the case in brief are that land measuring 8 kanals 17 .marlas comprising Khasra numbers 111 and 114 situated in Village. Miana Pura, Tehsil and District, Sialkot owned by the appellant was acquired through notification under section 4 of the Land Acquisition Act published in the official Gazette dated 17‑1‑1979. The possession of the land was taken by the Collector on 13‑8‑1978. Subsequently it was found that in the said notification instead of Khasra number 114, Khasra number 112 was inserted by mistake, therefore, on 25‑6‑1984 a corrigendum was issued substituting Khasra number 114 for Khasra number

112. Collector delivered the award on 26‑1‑1985 in which he assessed the compensation at the rate of Rs.809 per marla on the finding that this was the market price of the land at the time of publication of the notification under section 4 of the Land Acquisition Act. Dissatisfied with the quantum of compensation assessed by the Collector the appellant made an application under section 18 of the Land Acquisition Act for making reference to the Court. ,Consequently reference was made to the learned Senior Civil Judge, Sialkot. In his application the appellant pleaded that the assessment was inadequate because it was much lower than the actual market value of the land at the relevant time which according to the appellant was Rs.35,000 per marla. It was prayed that the compensation should be awarded at the rate of Rs.35,000 alongwith 15% compulsory acquisition charges and the compound interest at the rate of 8%o per annum from the date of taking over of possession of the land by Collector till the payment of the amount of compensation. It was also stated that Khasra number 114 measuring 2 kanals 3 marlas was acquired on 5‑6‑1984 when corrigendum was issued, therefore, the assessment of compensation of this part of land should have been made on the basis of market price prevalent at the time of issuance of corrigendum i.e. 5‑6‑1984 and not according to the market price of 1979 when the original notification was issued.

3. The reference was contested by the respondents. They filed joint reply. It was averred that the appellant had no cause of action. Reference should have been sent to the learned District and Sessions Judge under the law as such the learned Senior Civil Judge, was not competent to adjudicate upon it. It was also stated that the entire land stood acquired when the original notification was published on 17‑1‑1979 in which instead of Khasra number 114 Khasra number 112 was written on account of clerical mistake which was rectified through corrigendum issued on 5‑6‑1984 as such Khasra number 114 measuring 2 kanals 3 marlas could not be said to have been acquired on 5‑6‑1984 as such the award of compensation on the basis of market price of the acquired land on the date of publication of original notification dated 17‑1‑1979 was legally justified. On facts it was controverted by the respondents that the market value of the land m the year 1978 was Rs.35,000 per marla. It was maintained that the assessment of Rs.809 per marla was in accordance with the average sale map drawn by the Revenue authorities.

4. The learned trial Court framed the following issues:‑ (1) What was the operative market value of the land at the time of acquisition? OPP. (2) What is the effect of amending notification Under Section 4 dated 25‑6 1984? OP Parties. (3) Whether the petitioner was also entitled to 8% interest on 'the compensation amount and for this particular reason the notice is illegal, and void? OPP. (4) What amount of compensation tic, petitioner is entitled to in respect of acquisition in hand? OPP. (5) Whether the petitioner lacks a cause of action? OPR. (6) Whether the reference is incompetent? OPR. (7) Whether this Court lacks jurisdiction? OPR. (8) Relief. In support of his case the appellant examined Muhammad Munir, Clerk Land Acquisition Collector as P.W.1, Muhammad Sadaq, Record‑Keeper Excise and Taxation Department, Sialkot P.W.2, the appellant himself appeared as P.W.3, Muhammad Iqbal son of the appellant as P.W.4..Muhammad Asghar Patwari was examined as P.W.5 and Syed Azhar Hussain Inspector Excise and Taxation as P.W.6. Apart from this oral evidence the appellant also produced two Gazette notifications as Ex.Pl and Ex.P.2, sale‑deeds regarding land in dispute executed, and registered on 22‑11‑1974 as Ex.P.3, map of average sale‑price for the year 1977‑78 to 1983‑84 Ex.P.4, `Takhmina Oeemat Sakni Arazi' prepared for charging registration fee stamp duty and gain tax as ExP5.

5. On the other hand the respondents examined Muhammad Aslam Khan Patwari Halqa Hajipura as D.W.1, Muhammad Akram Butt Lecturer in Economics of Allama Iqbal College, Sialkot D.W. 2, Muhammad Asghar Sodai, Professor Retired, Director Education as D.W.3. In addition to this oral evidence the respondents also produced documents such as copy of Aks Shajra Ex.D1, letter dated 12‑4‑1979 from Assistant Commissioner Sialkot to the Principal, Allama Iqbal Government College, Sialkot as Ex.D.2, average sale map Ex.D.3, copy of award dated 26‑1‑1985 Ex.D.4, copy of challan Ex.D.5, challan for deposit of amount Ex.D6, copy of corrigendum dated 5‑6‑1984 Ex.D7, copy of Parcha Khutuni Arazi of land in dispute Exs.D.8 and D.9. Learned trial Court after appraisal of evidence of both the parties decided issue No.2 against the appellant. It was held that though Khasra number 114 teas not included in the original notification, but it was a clerical mistake which was corrected through corrigendum and since land in Khasra number 112 which was mentioned in the original notification was not available, therefore, it was not acquired and as a matter of fact it was the land comprising Khasra number 114 which was acquired As such the acquisition of the entire land shall be deemed to have taken place when the original notification was issued on 17‑8‑1978. Issues 1 and 4 have been decided together and answered against the appellant. It was held that the assessment of compensation made by the Collector at Rs.809 per marla was correctly made as the same was prevalent market price of the land in dispute at the time of publication of notification under section 4 of the Act on 17‑8‑1978. Under issue No.3 it was held that since the compensation was not enhanced by the Court, therefore, the appellant was not entitled to the grant of interest at the rate of 8% under the law. This issue thus was also decided against the appellant. Under issue No.5 finding has been returned that since the appellant failed to establish that the compensation was incorrectly assessed, therefore, he had no cause of action to file the petition. Issues 6 and 7 have been decided against the respondents and it has been held that Senior Civil Judge had the jurisdiction to adjudicate upon the reference. As a consequence of these findings the reference was dismissed.

6. Learned counsel for the appellant maintained that the land measuring 2 kanals 3 marlas comprising Khasra number 114 shall be deemed to have been acquired on 5‑6‑1984 when corrigendum was issued which for all purposes under the law shall be deemed to be itself an independent notification for acquisition of this Khasra number as it was not included in the original notification as such market price of this Khasra number on 5‑6‑1984 should have been the basis for assessment of compensation to be awarded to the appellant. It is also urged that through sale‑deed dated 22‑11‑1974 this very land was purchased by the appellant for an amount of Rs.1,77,000 and if calculated on this basis the market price of the land in 1974 comes to Rs.1,000 per marla as such it could not have been assessed at Rs.809 per marla in the year 1979. Learned counsel also stressed with considerable force that according to `takhminajat' prices of residential lands situated within municipal limits for charging registration fee, stamp duty and gain tax issued by the Deputy Commissioner which was produced in evidence as Ex.P5 the price of the land was not less than Rs.5,000 per marla, therefore, the said price having been fixed by the authorities themselves, assessment of compensation should have‑ been rested on this document. He also urged that through Letter NoACSS/LA‑56/2375 dated 17‑10‑1979 from Assistant Commissioner, Land Acquisition Collector, Sialkot to the Principal, Allama Iqbal Government College, Sialkot, the Principal was informed that according to the report of Tehsildar market value of the land was Rs.5,000 per marla, therefore, this assessment having been made by the Tehsildar, compensation could not be assessed below this amount. On the other hand, learned counsel for tile respondents argued that the assessment has been correctly made by the Collector and rightly upheld by the learned trial Court which is also supported by documentary evidence produced by the appellant such as Ex.D2 and Ex.D3.

7. We have examined the record with the assistance of the learned counsel for the appellant. Learned counsel for the appellant has taken us through documentary as well as oral evidence. Ex.P3 is a sale‑deed through which the land in dispute itself was purchased by the appellant which was executed and registered on 21‑10‑1974. It is clear from this document that no part of the price mentioned therein was paid before the Sub‑Registrar at the time of registration. This document was executed by P.W.4 Muhammad Iqbal son of the appellant as attorney of the vendor. It is in his statement that the entire sale‑price had already been received. He stated that out of this sale‑price an amount of Rs.1,30,000 was paid at one time and an amount of Rs.33,5W was paid through cheque and thereafter Rs.35,000 was paid. No independent evidence was brought on record in respect of payment in fact even that part of price which was allegedly made through cheque which evidence could easily be produced. In Ex.P3 there is mention of prior agreement of sale about which no evidence was led in order to corroborate that the sale‑price mentioned in the sale‑deed was correct and was in fact settled and paid. P.W.4 has not mentioned in his statement that there was any agreement of sale before this sale‑deed was executed. We are not convinced that any credence can be given to Ex.P3 and the statement of P.W.4 so as to assess the compensation on the basis of this document. Ex.P5 is takhminajat of the prices of the residential land prepared by the Deputy Commissioner for the purpose of charging registration fee etc. This document has been signed by the Deputy Commissioner on 2nd April without mentioning the year. This document was proved by P.W.6 Syed Azhar Hussain whose statement was recorded on 26‑7‑1986, therefore, it can be safely concluded that this takhminajat relates to the year 1986 because no evidence has been brought on record to which year it was related. It would not be safe to assess the compensation on the basis of this takhminajat to determine the market price of the land in dispute prevalent in the year 1979. In the reference the appellant claimed Rs.35,000 per marla as compensation being the market price of the land at the relevant time but when he appeared as P.W.3 he claimed that in the year 1979 the market price of the land was Rs.5,

000. This change in the stand of the appellant is very much material to raise presumption against him that he claimed aggregate amount of Rs.35,000 per marla in the reference. So far as letter dated 17‑10‑1979 written by Assistant Commissioner to the Principal of the College demanding an amount of Rs.5,000 per marla as market price of the land is concerned, no reliance can be placed upon it order to resolve the controversy inasmuch as it was based on same report of the Tehsildar as mentioned therein but neither the said report was produced in evidence nor the material on the basis of which the Tehsildar arrived at that conclusion was produced in evidence. On the other hand, Ex.D2 is a letter dated 12‑4‑1979 from Assistant Commissioner to the Principal in which it was stated that the Tehsildar had worked out the average price of the land on the sale transactions during the year 1978‑79 at Rs.809 per marla which was tentative price of the land and the Principal was required to deposit the same. Ex.D3 contains the details of the sale transactions made during the year 1978‑79 according to which average sale price of one marla comes to Rs.809. Considering the entire evidence produced by the parties in comparison to each other we have come to the conclusion that neither Ex.P3 the sale‑deed nor Ex.P5 the takhminajat of prices of residential lands made by Deputy Commissioner for charging stamp duty etc. and the oral evidence of P.W.4 advance the case of the appellant and the other evidence produced by the appellant does not establish his claim. It has come in evidence through statement of D.W.2 that Khasra number 112 was already owned by the college which fact has not been denied by the learned counsel for the appellant as such the said Khasra number was undoubtedly included in the original notification published on 17‑1‑1979 through clerical mistake, therefore, a corrigendum was issued substituting Khasra number 114 for Khasra number 112 as such Khasra number 114 shall be deemed to have been acquired on the date when original notification was published and not when the corrigendum was issued as is being canvassed by the appellant. The learned counsel for the appellant did not deny that the Collector took over the possession of the Khasra numbers 111 and 114 on 13‑8‑1978. In view of this factual position no doubt can be entertained that Khasra number 114 stood acquired on 17‑1‑1979 and the assessment of compensation of this part of land on the basis of market price of 1979 was correctly made and the findings of the trial Court on issue No.2 'calls for no interference which is hereby affirmed.

8. Coming to the question of assessment of compensation made by the Collector and upheld by the learned trial Court, we find that the finding has been rested mainly on Ex.D

3. It has been admitted by D.W.1 that Ex.D3 relates to prices of agricultural lands. The appellant himself produced average sale price for the years 1977‑78 to 1983‑84 as Ex.P4 which is also with regard to agricultural lands. Apart from this, this document cannot be relied upon, for it relates to years subsequent to the date of publication of notification under section 4 of the Land Acquisition Act. Learned counsel for the appellant argued on the strength of judgments reported as Fazal‑ur‑Rehman and others v. General Manager, S.I.D.B. and others P L D 1986 S C 158 and Jan Muhammad and others v. Deputy Commissioner, Karachi P L D 1986 Kar. 164 that trans‑1"ion of sale executed after notification under section 4 of the Land Acquisition Act, could also be looked into to assess the compensation, therefore, according to him Ex.P4 could be made the basis for awarding compensation. We are afraid, the argument is misconceived. In the reported cases sale transaction took place immediately subsequent to notification. The notification in this case was issued on 17‑1‑1979 and in Ex.P4 sale transactions of 1_980‑81, 1981‑82, 1982‑83 and 1983‑84 are included. A sale transaction taking place immediately after the date of notification will be taken into consideration but not the transactions taking place after two or three years, therefore, the argument is hereby repelled.

9. After considering the evidence, we find that none of the parties brought any documentary evidence about the market price of sakni land at the time of publication of notification under section 4 of the Land Acquisition Act on 17‑1‑1979. We have given our anxious consideration to the question of assessment of compensation which is to be based on market price of similar land prevalent in the locality at the relevant time. If according to the evidence of the respondents themselves the market price of agricultural land in 1978‑79 was Rs.809 per marla, the price of 'sakni land' can safely be presumed to be higher to this. After considering attending .circumstances of this case, and taking judicial notice that `sakni land' always attracts higher price than agricultural land, therefore, we have come to the conclusion that the market price of land in dispute should be higher than Rs.809 per marla. Proceeding on these premises, we have come to the conclusion that market price of land in dispute at the relevant time should be Rs.1,000 per marla. We modify the findings of the trial Court on issues 1 and 4 accordingly. The amount of compensation accordingly is hereby assessed at. Rs.1,77,000 as against Rs.1,43,193 assessed by the Collector and upheld by the learned trial Court.

10. According to statement of P.W.1 the possession of the land was taken by the Collector on 13‑8‑1978 and the compensation assessed by the Collector was deposited on 18‑6‑1980, the appellant was entitled to compound interest at 8% under section 34 of the Land Acquisition Act for the said period. The, finding of the trial Court on issue No.3 disallowing the appellant the said interest cannot be upheld therefore, the same is hereby reversed. The said issue is answered in favour of the appellant. In the result, the appeal is accepted with costs. The judgment and decree of the learned trial Court is set aside. A decree is hereby passed in favour of the appellant in the sum of Rs.1,77,000 plus 15% compulsory acquisition charges. He shall also be paid compound interest at 8% on the amount of Rs.1,43,193 from 13‑8‑1978 to 18‑6‑1980 under section 34 of the Land Acquisition Act and a further compound interest at the rate of 8% on an amount of Rs.33,807 under section 28 of the Land Acquisition Act being an amount cal difference on account of increase of compensation made by us which shall be pait1 ' from 13‑8‑1978 upto the date of deposit of this amount. AA./B‑67/L Appeal allowed