2003 PLP 1865 (MLD)

TALAAT QAYYUM QURESHI, J.

On the request of Director Technical Education N.-W.F.P. Peshawar, land measuring 33 Kanals, 9 Marlas comprising Khasra Nos.107, 108 and 109 situated in revenue estate of Bag-e-Aram Tehsil and District Mardan was acquired for the construction of Government Commerce College Mardan. Notification under section 4 of the Land Acquisition Act was issued for acquisition of land measuring 60 Kanals comprising Khasra Nos. 106, 107, 108 and 109 on 22-2-1982. Subsequently the acquired area was reduced to 33 Kanals and corrigendum to this effect was issued on 15-1-1984. 1t is worth mentioning that land comprising Khasra No. 106 was not included in the corrigendum. Since the land was urgently required, therefore, the Additional Commissioner Mardan issued notification under section 17(1) of the Land Acquisition Act on 19-10-1983. Award No.35/4 was issued on 15-5-1984. The Land Acquisition Collector fixed Rs.1280/11 per Marla as compensation 15% compulsory acquisition charges and interest at the simple rate of 6% was also awarded.

2. Mst. Taj Begum, the landowner was not satisfied with the compensation of her land. She filed Reference No. 14/4 on 20-7-1984 under section 18 of the Land Acquisition Act, 1894 before the Collector which was referred to learned Land Acquisition Judge Mardan for determination. The learned Referee Judge vide judgment and decree dated 18-9-1994 enhanced the compensation from Rs.1280/11 to Rs.2,000 per Marla. The appellants being aggrieved with the judgment and decree whereby the amount of compensation was enhanced have filed the appeal in hand.

3. Mr. Muhammad Waris Khan, learned Additional Advocate- General representing the appellants argued that the learned Referee Judge while deciding the case was influenced by judgment/decree passed in another case i.e. Objection Petition No.47/4 of 1994 decided on 20-4-1994, whereby compensation at the rate of Rs.2,000 was fixed. Basing the impugned judgment on the above mentioned case, the learned Referee Judge also fixed Rs.2,000 per Marla and failed to take into consideration other factors and evidence available on record.

4. On the other hand Mr. Qamar Zaman, the learned counsel representing the respondent argued that the learned Court below had taken into consideration the fact that the acquired land was situated at Mardan-Nisatta Road and had the future potential values. The amount of compensation fixed in the same revenue estate in Case No.47/4 was also taken judicial note of, therefore, the amount bf compensation is still on lower side was fixed.

5. It was also argued that the appeal was not maintainable because the same had been filed against a dead person.

6. We have heard the learned counsel for the parties and perused to record.

7. The argument of the learned Additional Advocate-General that the learned Referee Judge has based his findings only on another case i.e. Objection Petition No.47/4 of 1994 and has not considered any other factor while enhancing compensation has no force. The learned Referee Court has in fact taken into consideration that the acquired land is situated at main Mardan-Nisatta Road, therefore, had potential value. Another factor which was taken judicial note of was judgment passed in Objection Petition No.47/4 decided on 20-4-1994, whereby compensation at the rate of Rs.20,000 was fixed for the land acquired which was situated in the same revenue estate i.e. Bagh-e-Aram Mardan. There is no doubt while determining the amount of compensation, the Court has to advert to the evidence available on record by the parties and yardstick of compensation of another acquisition case could not be applied to a case without examining all the attending circumstances and the analogies applicable to the acquisition in question.

8. Keeping in view the above principle, we proceed to see as to whether there was any evidence available on record to show that the acquired land was situated at Mardan-Nisatta Road or not? Miraj Muhammad (P.W.3) General Attorney of the landowner stated that the acquired land was situated at Mardan-Nisatta Road and the entire front-page of 33 Kanals, 9 Marlas was acquired and the land situated at the back was left to the owner. The price at the relevant time was between Rs.12,000 and 13,000 per Marla. The said land was in the middle of Abadi and was commercial in nature. The same was situated within the Municipal limits of Mardan. This witness was not cross-examined by the other side with regard to the situation of land and even the price stated. It is by now established law that if a witness is not cross-examined on a fact and his statement went un-rebutted and unquestioned, such a statement as a matter of law and principle could be taken to be correct. Reliance in this regard is placed on Haji Din Muhammad through legal heirs v. Mst. Hajira Bibi and others (PLD 2002 Peshawar 21). What to speak of rebuttal. Said Muhammad Ali (R.W.1) Principal Government Commerce College Mardan, who appeared from appellant's side, in his cross-examination admitted:-- "The acquired land is situated on Nisatta-Mardan Road, Fazl-e- Haq College Mardan is situated 3/4 Kilometres from the present Institution towards Nisatta side." The above evidence which is available on record was considered by the learned Referee Judge as one of the factors for determining compensation. So it cannot be held that the learned Referee Judge had not appreciated the evidence available on record arid had only based his findings on the judgment passed in another case. At this stage another question which needs determination is as to whether in addition to the evidence available on record, could a Referee Judge take into consideration the amount of compensation fixed for the land situated in the same revenue estate or not. In number of judgments the august Supreme Court of Pakistan has laid down criteria for determining fair compensation. In Nisar Ahmad and others v. Land Acquisition Collector Swabi and others (PLD 2002 SC 25) the august Supreme Court of Pakistan laid down many principles. Para (xiii) of the said principles is quoted below for convenience:-- "(xiii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula for compensation has been adopted, should be taken into consideration".

9. The perusal of (para xiii) of the above mentioned criteria laic down by the august Supreme Court of Pakistan shows that the Referee Court can while determining the compensation take into consideration the value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted. If the learned trial Court has taken into consideration the judgment passed in Objection Petition No.47/4 of 1994, it has not committed any illegality because, as mentioned above, in addition to taking into judicial notice, the above-mentioned judgment, the evidence available on record was also appreciated.

10. While dealing with the question of fixation of compensation in Nisar Ahmad Khan and others v. Land Acquisition Collector Swabi and others (PLD 2002 SC 25), Province of Punjab through Collector Attock v. Engr. Jamil Ahmad Malik and others (2000 SCMR 870) and Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another (1999 SCMR 1647) the august Supreme Court of Pakistan laid down the following criteria:-- '(i) The data from which the market value of the land can be estimated is given in rule 13 of the North-West Frontier Province Circular No.54 issued presumably under section 55 of the Act. (ii) The method to work out the market value in the practical method of a prudent man laid down in Article 2, Qanun-e-Shahadat. 1984 to examine and analyse all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land. (iii) Subsection (1) of section 23 of the Land Acquisition Act provides that in determining the amount of compensation the Court shall take into consideration the market value, loss by reasons of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition. (iv) The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of it near about the date of notification under section 4(1) of the Land Acquisition Act. The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the issuances of sale of land in the neighbouring locality, the potential value of the land need not be separately awarded because such sale cover the potential value. (v) The law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining that market value, classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value may be tremendously high because of its location, neighbourhood potentiality or other benefits. (vi) While determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration. (vii) Consideration should be had to all the potential uses to which the land can be put, as well as all the advantages, present or future which the land possesses in the hands of the owners. (viii) In determining the question of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction. (ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into transaction of sale can reasonably demand from a purchaser

this means that Court has to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist. (x) While determining the value of the 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 but the value of the land with all its potentialities may also be determined by examining (if necessary as Court witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death the Courts rely on oral testimony alone and do not insist on the producing of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind that it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in question, because of the prevalent tendency that in order to save money on the purchases 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 for the determining the price of land intended to be acquired. (xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value. (xii) In cases of compulsory acquisition effort has to be made to find out that the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of this land as a result of compulsory acquisition under the Act. (xiii) The value, of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted should be taken into consideration: (xiv) The phrase 'market value of the land' as used in section 23(1) of the Act means 'value to the owner" and, therefore, such value must be the basis for determination of compensation. The standard must be not a subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration. " The Supreme Court of India has also laid down criteria or factors taken note of as plus and minus factors in case "Chimanal Hargovinddas v. Special Land Acquisition Officer, Poons and another" (AIR 1988 SC 1652) in the following manner:-- "Plus factors: (1) Smallness of size. (2) Proximity to a road. (3) Frontage on a road. (4) Nearness to developed area. (5) Regular shape. (6) Level vis-a-vis land under acquisition. (7) Special value for an owner of an adjoining property to whom it may have some very special advantage. Minus factors: (1) Largeness of area. (2) Situation in the interior at a distance from the road. (3) Narrow strip of land with very small frontage of compared to depth: (4) Lower level requiring the depressed portion to be filled up. (5) Remoteness-from developed locality. (6) Some special disadvantageous factor which would deter a purchaser."

11. There was increase of Rs.720 per Marla, the same was justified because firstly, the entire frontage of 33 Kanals, 9 Marlas was acquired leaving the back portions of the landowners' property valueless. Secondly, the acquired land is situated at main Mardan-Nisatta Road and has great potential value for commercial purposes. Thirdly; Notification under section 4 was issued on 22-2-1982, corrigendum on 15-1-1984 and Award was announced on 15-5-1984. Between 22-2-1982 to 15-5-1984 there was tremendous increase of price of land in the area. Mutations Exh.P.W.3/7 and Exh.P.W.3/8 which were placed on file without any objection from the other side indicate the said increase. Fourthly, as per observations passed by the august Supreme Court of Pakistan in a very recent judgment Nisar' Ahmad Khan and others v. Land Acquisition Collector Swabi and others (PLD 2002 SC 25) the landowners are entitled to maximum possible benefit for the reason that such lands are acquired not by way of mutual negotiations but under the State powers conferred on the public functionaries, Courts are, therefore, always liberal and generous in fixing the quantum of compensation based on different consideration. Fifthly, the acquired land is adjacent to Abadi of village 2, is clear from the statement of Attorney of the landowners (P.W.3) which has not been rebutted. Sixthly, land situated in the same revenue estate (Bagh-e-Aram) was acquired for construction of Training Institute for Disable Persons vide Award No.33/4 dated 7-5-1984. In the said case the Collector had fixed Rs.1345 per Marla but the learned Referee Court has enhanced the same to Rs.2,000, on objection petition No.47/4 filed by the landowners. When the compensation of land situated in the same revenue estate having same kind had already been determined at the rate of Rs.2,000 per Marla, we fail to understand why the landowners having the same kind of land in the same revenue estate whose land was more valuable because entire frontage touching the main Mardan-Nisatta Road was acquired, should not be treated similarly.

12. Another aspect of the case is that the appeal in hand has been filed against dead person. Mst. Taj Begum died during the objection petition filed by her. Her L.Rs. were impleaded by the learned Referee Court vide order dated 19-2-1994. In paragraph 2 of the impugned judgment and decree the learned Referee Judge has clearly mentioned that Mst. Taj Begum was dead and represented by her L.Rs. The perusal of the decree-sheet also shows that decree was passed in favour of L.Rs. Mst. Taj Begum but the appeal in hand, as mentioned above, was filed against Mst. Taj Begum who had died way beck in the year 1994. The appeal in hand was tiled on 20-12-1994, whereas an application (C.M. No.65 of 1998) under Order 22 read with Rule 4 and 11 of C.P.C. for bringing on record the legal heirs of deceased respondent was filed en 26-3-1998. The Additional Registrar of this Court vide order dated 11-5-1998 directed that the L.Rs. of deceased respondent be served. No doubt the appeal which had been filed against dead person (Mst. Taj Begum) could be amended by bringing her legal representatives on record, but the appellants were negligent in bringing the L.Rs. of deceased respondent on record within the period of limitation for filing appeal. They did not bother to submit any application for condonation of delay and even did not care to give any satisfactory explanation for such omission. There is delay of three years, three months and six days, in bringing the legal heirs of deceased/respondent on record. The appeal would be deemed to have been filed on the day when the said L.Rs. were added. The legal heirs of deceased-respondent were impleaded long after expiration of period of limitation, therefore the appeal in hand deserves dismissal on the ground of limitation alone. If any judgment in support of the above proposition is required, reliance can safely be placed on the Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others (PLD 1971 SC 82), wherein it was held:-- "It is not disputed that an appeal against a dead party can be amended by the brining his legal representatives on the record. Except Sind and Upper Burma Courts, all other High Courts in this sub-continent have taken this view. I am not inclined to take a different view on this point. The contention of the respondent, however, is that the correction of the cause title after 1208 days means the bringing of the legal representatives or filing of the appeal after 1208 days and the said delay having not been condoned by this Court, the appeal is not maintainable and is liable to be dismissed with costs. In reply, the appellants have not given any explanation for condoning the delay of 1208 days. Their only contention is that on the 19th October 1968, the Supreme Court sent a notice to the Attorney that Muhammad Haider Ali Khan Panni respondent died on the 3rd June 1968 and steps may be taken to bring his legal representatives on the record. It was in pursuance of this that the appellant moved an application for bringing the legal representatives of the deceased on the record. According to the appellant, the mistake on their part was bona fide and the delay in correcting the cause title may be condoned. After hearing the learned counsel for the parties, I am satisfied that no case has been made out to condone the delay of 1208 days. The appellant was negligent in pursuing the remedy in this Court. They filed the appeal against a dead person and corrected the cause-title after a lapse of 1208 days. In the absence of any satisfactory explanation, the appeal is barred by 1208 'days. It is accordingly dismissed with costs. "

13. Likewise in another case reported as Khushi Muhammad v. Rehmat Ali (PLD 1988 Lahore 418) dead person and the L.Rs. of the said person were not brought on record within the period of Limitation, the appeal was dismissed being barred by time. It was held:-- "Since, the instant case, legal representatives of the respondent were impleaded long after the expiration of the period of limitation, appeal before me deserves to be dismissed on the ground of limitation. It is accordingly, dismissed in limine."

14. The net result of the above discussion is that the appeal in hand is dismissed with no order as to costs. M.B.A./881/P Appeal dismissed.