1990 PLP 972 (MLD)

ABDUR REHMAN KHAN, J.‑‑In this appeal the appellants have impugned the legality and soundness of the judgment of the learned Acquisition Judge, Haripur dated 6‑1‑1986 whereby their objection petition under section 18 of the Land .Acquisition Act was partially accepted and they were allowed compensation of their acquired land at the rate of Rs. 5,475.20 per kanal instead of Rs. 80,000 per kanal which they had prayed for. However, in this appeal they request that they may be awarded compensation at the rate of Rs. 24,787.80,per kanal.

2. Appellants were owners of land with Khasra Nos. 1497/1, 1527/1, 1493/1, 930/1 and 931 min situated in the area of village Kotnajibullah of Tehsil Haripur which was acquired for WAPDA for construction of Disty No.4 Right Bank Canal Khanpur and notification under section 4 of the Land Acquisition Act in this respect was issued on 27‑6‑1975 whereas the award was drawn about 7 years thereafter on 11‑5‑1982.

3. It was averred in the objection petition that the acquired land of the petitioner lies adjacent to the Abadi of the village and should have been classified as Charri or Abadi, that while assessing the market value the learned Collector failed to take into consideration the relevant factors necessary for determination of the value and that notification for acquisiton was issued 7 years later to the award but the prices prevalent round about the time of notification were fixed and the inflation and sharp rise in the prices were not paid any attention. In the written statement filed on behalf of the respondents all the allegations in the objection petition were refuted and the rates awarded in the award were termed as correct.

4. Abdul Qayum Patwari of the area concerned appeared as O.W.1 and exhibited the followng documents on record:‑‑ (1) Ex. O.W.1/1 copy of Fard Jamabandi for the year 1967‑68. (2) Ex.p.W. 1/2 copy of Khasra Girdawari. (3) Ex.O.W. 1/3 is one yearly average of Maira kind of land for constrcution purposes from 11‑5‑1981 to 11‑5‑1982 (according to it price of this kind of land comes to Rs. 19,967.20). (4) EX.O.W.1/4 is six monthly average of Maira kind of land after award from 11‑5‑1982 to 11‑11‑1982 (It assessed Rs. 58,660 as the price per kanal). (5) EX.O.W.1/5 is one yearly average which pertains to Chard kind of land for a period from 11‑5‑1981 to 11‑5‑1982 which is prior to the notification and which indicates per kanal rate as Rs. 24,737.80. (6) Ex.O.W. 1/6 is six monthly average of Charri type of land after award for a period from 1‑5‑1982 to 11‑11‑1982 indicating Rs. 38,742.60, as price per kanal. (7) Ex. O.W. 1/7 relates to Charri kind before award from 11‑11‑1981 to 11‑5‑1982 giving Rs. 20,333 as rate per kanal. (8) Ex.O.W. 1/8 is six yearly average which covers six months period after award from 11‑5‑1982 to 11‑11‑1982 equal to Rs. 12,571.40 per kanal. (9) Ex.O.W. 1/R‑2 is one year average for Maira kind of land after notification from 27‑6‑1975 to 27‑6‑1976. One of the objectors Sardar Muhammad Jehangir, who was examined as O.W.2, in his statement complained of the grant of low price to them in the award as against the high price which their land could fetch if sold in open market. As against this the respondents produced Khawaja Muhammad Patwari Office of the Collector who produced copy of the notice under section 9/10, copy of the award, payment voucher and copies of the statement. It is to be noted that this witness stated nothing about the kind of the land or rate of compensation.

5. A local Advocate was appointed as Commissioner with the consent of the parties to report about the exact location of the acquired property and its distance from the village. The Commissioner inspected the spot in presence of the objectors and Mirza Muhammad Asad Khan Advocate as a representative of the Collector and Patwari Halqa who assisted him in the light of the relevant record. This Commissioner was then examined in Court as C.W. 1 who testified to his report Exh.C.W.l/1 on the case file. According to this report, the acquired Khasra No. 697/1 is situated on metalled road, is at a distance of 15 karams from village and it in fact contains some construction and similarly the adjacent Khasra numbers also have Abadi in them. Distance between another Khasra number in qustion 1527/1 in the village is shown as 42 karams in the report and the adjacent khasra No. 1526 has also some construction. Khasra Nos. 1493/1, 1497/1 and 1492/1 in objection petition have been shown in one block and khasra No. 1493/1 is 22 karams away from the village. Khasra Nos. 930/1 and 931/1 are situated adjacent to the village at a distance of 5 karmas and the khasra number lying adjacent to it had been purchased for construction and construction work in some of them was in progress. Khasra No. 1492/1 and the village is 12 karams away from each other and it lies on the side of metalled road.

6. It is to be noted that in the award these khasra numbers were classified as Maira Abadi and its compensation was fixed at Rs. 3,229.80 per kanal. The learned Reference Judge has also approved its kind as Maira Abadi and while making one year average Exh. O.W./12 covering one year period prior to notification under section 4 as the basis, he allowed compensation at the rate of Rs.5,475.20 per kanal.

7. The learned counsel arguing for the appellant submitted that the acquired land of his client should have been classified as Charri or Abadi as it lies near the village and that the compensation allowed in objection petition No.155/4 of 1982 captioned as Abdul Majid v. Collector decided on 1g‑1‑1986 involving land classified as Charri of this very village should have been allowed to the appellant. He also stressed that during the period of 7 years which elapsed in between the date of notification under section 4 and of the award, prices of every type of land have escalated but this raise in prices were not kept in view while evaluating .the compensation of the acquired land. In support of his contentions he relied on P L D 1988 S C 32, P L D 1982 S C 100, PLD 1970 Queta PLD 35, P L D 1986 SC 159, 1985 S C M R 767 and P L D 1986 Kar.

165. On the other hand, the learned Advocate representing the respondents argued that every case is to be adjudged on its own facts and a decision in entirely distinct facts and diverse circumstances can hardly be made basis for a judgment in another case. He was of the view that in facts and circumstances of this case no further increase in the rate of compensation will be justified. We considered these contentions in the light of the evidence brought on record.

8. This fact is admitted in the following words in the award that the land near the Abadi is very costly. "According to the report of the Acquisition Staff the area under acquisition near Abadi is very costly and suggested to be considered as Abadi Deh kind of land. Therefore, Maira kind of land was treated as Abadi Deh and was classified as Maira Abadi and assessed at the rate of Rs. 3,229/80. The commission report also confirmed this position as according to it the acquired land of the appellant is in close approximity of the village, in most cases surrounded by Abadi. The learhed Acquisition Judge also agreed with this locale and classification of the land in question and adopted EX.O.W.1/R‑2 one year average from 27‑6‑1975 to 27‑6‑1976 for fixing the compensation at Rs. 5,475/20. In this view of the matter the learned counsel for the appellant should have no grievance as far as the classification of the land and its nearness to the Abadi are concerned as it was considered and assessed as such in the award as well as by the Acquisition Judge.

9. Now the question that assumes importance is whether it would be justifiable and equitable to pay the same amount of compensation to a person in 1982 to which he was entitled during the period from 27‑6‑1975 to 26‑6‑1976 i.e. one year preceding the issuance of notification and whether this period of one year as laid down in section 23 of the Land Acquisition Act will be the sole consideration for determination of the compensation or besides it other factors like the sharp rise in the prices and the inflatory trend of the currency can also be considered in this respect. It requires to be determined in the light of the evidence on record that if the appellant had been paid the compensation amount worked out during the period one year preceding the notification under section 4 and at that time if he had purchased land with this amount in the vicinity of the acquired land, then how much it would have fetched him through its sale during the period roundabout the award. In this context reference to the statement of O.W.1 Abdul Qayum Patwari Halqa and the documents produced by him would be of much assistance. Ex. O.W.1/3 is one year average from 11‑5‑1981 to 11‑5‑1982 i.e. the period one year before the award of the land classified as exactly the type required from the appellant. According to it Rs.19,967.1 is the price for one kanal and according to one year average EX.O.W.1/4 for a period after award from 11‑5‑1982 to 11‑11‑1983 one kanal is worth Rs. 58666.,Ex O.W. 1/5 is Aust Yaksala for the land classified as? for a period of one year before the award i.e. 11‑5‑1981 to 11‑5‑1982 and according to it per kanal price comes to Rs. 24.787/80. It is thus obvious that the appellant will pay Rs. 19,967.20 per kanal at the time preceding one year before the award but he is being forced to receive Zs. 3,22Q.80 per kanal as per award and Rs. 5,475.20 as per the judgment of the Acquisition Judge. It is now to be seen as to whether this gap of 7 years can be considered as a factor relevant for the determination of the compensation or those given in section 23 are exhaustive and no other criterion can be adopted for this purpose. In this respect the following rule laid down in P L D 1988 S C 32 provides a guideline in these words:‑‑ "As such the fact that long period has elapsed between the issuance of notification under section 4 of the Act and the announcement of the award coupled with the fact that during that period the prices of the land or property have arisen sharply is a factor which ought to have been taken into account while determining the value of the land in dispute for the purpose of compensating the owner." However, in the said case as no evidence was brought on record to show the increase which occurred during the gap between the two periods, therefore, in absence of any foundation no enhancement in price was allowed, otherwise it was observed, "Had such evidence been brought on record by the petitioners we are sure that the learned Collector himself or in any case, the learned trial Court and the High Court would have taken this factor into consideration while determining the market value of the land for the purpose of awarding compensation to the petitioner". Therefore, there is no bar in taking into consideration the long period between the award and notification for assessment of compensation as otherwise it will be entirely inequitable and would rather amount to injustice with a person whose land is acquired, to pay him that seven years later which was his due seven years before, in spite of the fact that he had no fault in the matter and the value of the currency had in the meantime depreciated and the value of the land owned by him had appreciated. In this way it can be held that the factors narrated in section 23, as factors for determination of market value of the acquired property are not exhaustive and factors other than those given id that section as for example, the undue and excessive delay in between the date of notification and award can also be taken into account if there exists evidence on record to prove the increase in the value of the land in between the said two periods. In this case the evidence referred to above and particularly Exh.O.W. 1/3 is enough to discern the high rise in the prices during the mentioned interval. Therefore, while making the price shown in Exh.O.W.l/3 as the basis for the grant of compensation of the acquired land of the appellant, we allow him compensation at the rate of Rs. 19,970.20 per kanal with simple interest at the rate of 6% per annum on the excess amount from the date of possession to the date of payment of the enhanced amount in Court.

10. This appeal is, therefore, accepted and the judgment and decree of the Acquisition Judge are modified to the extent indicated above. There would, however, be no order as to costs. H.B.T./975/P ????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.