2005 PLP 917 (CLC)

SYED ZAHID HUSSAIN, J.

This regular first appeal under section 54 of the Land Acquisition Act, 1894 and R.F.A. No.470 of 1999, R.F.A. No.471 of 1999 and R.F.A. No.473 of 1999 arise out of the same judgment dated 28-4-1999, rendered by the learned Senior Civil Judge, Gujranwala on respective references filed by the appellants under section 18 of the Land Acquisition Act, 1894.

2. The background giving rise to the same briefly stated is that by notification dated 14-1-1986 issued under section 4 of the Land Acquisition Act, 1894, land measuring 116 Kanals, 12 Marlas owned by Sardar Amjad Masud vide Khasra Nos.1543-44, 1547, 1549-50, 1552-53, 1556-58 and 1562-68, likewise land measuring 8 Kanals vide Khasra No.1542 owned by Mst. Zohra Begum, land measuring 2 Kanals, 13 Marlas owned by Sardar Asghar Ali vide Khasra No.1551 and land measuring 16 Kanals bearing Khasra No.1545 and 1546 owned by Mst. Zarina Begum situated in village Lohianwala Tehsil and District Gujranwala was acquired by the Government for the Board of Intermediate and Secondary Education, Gujranwala. On 29-10-1987, award was announced and compensation of land was assessed at Rs.2193.18 per Marla. Dissatisfied with the said assessment of compensation, references were filed by the appellant which were dismissed by the learned Senior Civil Judge, Gujranwala vide the abovementioned judgment. The learned counsel contends that the land was of much higher value than assessed by the Land Acquisition Collector as per award dated 29-10-1987. Describing the location and proximity of the area it is contended that fair compensation to the land-owners has not been awarded and the rate of land fixed in the award is highly inadequate and on lower side. It is contended that the Court has not kept in view all the relevant considerations and attending circumstances, germane for the fixation and assessment of compensation under section 23 of the Land Acquisition Act, 1894. With the aid of Aks Shajra (Exh.P.3), it is sought to be shown that the property around and in the vicinity was fast acquiring, urban colour and utility and was losing its agricultural character due to the growing trend of expansion of city. According to him, the evidence led by the appellants qua its potentiality, future use and utility and appreciation in price has not been given due consideration and weight by the learned Senior Civil Judge and the Court has erred in law by adopting the criteria of average price of the preceding one year. Referring to Exh.P/1, a notification issued by the Collector, dated 21-9-1987 under section 27-A of Stamp Act, 1899 inadequacy of rate of land is sought to be shown. It is also contended that even the average value of the land of the preceding one year had not been correctly worked out. It is contended that while assessing compensation for the acquired land a liberal and generous approach is to be adopted by the Court. Several precedents have been cited by him including Malik Anman and others v. Land Acquisition Collector and others PLD 1988 SC 32, Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar 1999 SCMR 1647, Province of Punjab through Collector, Attock v. Engineer Jamil Ahmad Malik and others 2000 SCMR 1322, Province of Punjab v. Engineer Jamil Ahmad Malik and others 2000 SCMR 870, Secretary to Government of N.-W.F.P. Peshawar and 15 others v. Haji Fateh Khan and 15 others 2001 SCMR 974, Muhammad Saeed and others v. Collector, Land Acquisition and others 2002 SCMR 407 and Nisar Ahmad Khan v. Collector Land Acquisition, Swabi and others PLD 2002 SC 25 to support his contention that due and fair compensation has not been awarded to the appellants.

3. The learned counsel for the respondents on the other hand while supporting the assessment of compensation made by the Collector in the award and by the Court contend that the average sale price of the relevant period had been taken into consideration in view of the provisions of section 23 of the Act and Rule 10(1)(iii)(c) of Punjab Land Acquisition Rules, 1983. It is contended that the instances of the land of higher value given by the appellants were of no relevance as the same were of different kind and nature, being used for Abadi, whereas the land in dispute was agricultural in nature. Reliance has been placed upon Hyderabad Development Authority through M.N.D. Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84.

4. The respective contentions have been considered in the light of the material and the evidence on the record. The purpose for which the land in dispute was acquired was, the construction of offices, Mosque, Model School, auditorium, guest house, residences for the officers/officials, Hostels for girls and boys, Cafeteria, Bank, Hostels for the indoor games, Swimming Pools and playgrounds for the male and female, outdoor tournaments for the Board of Intermediate and Secondary Education, Gujranwala. It is indicative of not only its situation and location but also of its utility and potentiality. From the Aks Shajra (Exh.P.3) also it is evident that the same was situated in close proximity of the G.T. Road passing through the Gujranwala City and the Bypass. Sabir Hussain, Head Clerk of Assistant Commissioner/Land Acquisition Collector who had appeared as P.W.2 had admitted that the land was situated within the Bypass which was an Urban Area. Muhammad Azam Patwari P.W.3 also deposed to the same effect and stated that the land in dispute was situated within the municipal limits. He had produced Aks Shajra (Exh.P.3) and explained the situation of the land. Sardar Amjad Masud had appeared as A.W.4 and claimed that the price of the land at the time of acquisition was about Rs.10,000 per Marla. Muhammad Ashiq R.W.1 indeed supported the assertion of the appellants as to the situation of the land. No other witness worth-mentioning was produced by the other side to contradict or controvert depositions of the above witnesses except that their counsel produced few documents (Exh.R.1 to Exh.R.14) subject to objections.

5. It is by now a trite and settled law that while making determination of fair compensation various matters are to be taken into consideration including the value of the land in the neighbouring locality, its future utility and potentiality and the price which a willing purchaser would pay for the land to the willing seller. Highlighting various aspects to be kept in view while fixing compensation it was observed in Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar 1999 SCMR 1647 (supra) that the previous sales of land cannot therefore, be always taken to be an accurate measure for the determining of the price of the land intended to be acquired . The criteria stated and serialized in Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar 1999 SCMR 1647, was followed by the Honourable Supreme Court of Pakistan in Province of Punjab v. Engineer Jamil Ahmad Malik and others 2000 SCMR 870; Secretary to Government of N.-W.F.P. Peshawar and 15 others v. Haji Fateh Khan and 15 others 2001 SCMR 974; Nisar Ahmad Khan v. Collector Land Acquisition, Swabi and others PLD 2002 SC 25 and Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC

512. It is thus, evident that a single factor of average sale price of the preceding year is not the sole consideration for assessing the fair compensation. The learned Senior Civil Judge, while deciding the references in particular Issue No.3 though noted the location of the land that it was situated at Sialkot Bypass and the land was a sort of urban agricultural land has adopted the assessment made by the Land Acquisition Collector who followed the formula of average sale. The appellants thus, are justified in their grievance that whereas they have been deprived of their valuable land, fair and proper compensation had not been paid to them and that the evidence that was produced by them has not been considered and given due weight by the reference Court. We find substance in the contention of the learned counsel for the appellants in this regard and observe that the Court appear to have acted oblivious of the considerations which were germane for deciding the matter of assessment of due compensation of acquired land. G.T. (Grand Trunk) Road runs along the land in dispute which is situated around the Sialkot Bypass and admittedly fall within the urban limits of Gujranwala. All such factors had to be kept in view while deciding the reference but we find that the learned Judge fell into error in not adverting to these aspects. He was required to make an objective assessment on appraisal of the evidence in order to determine the fair compensation of the land. The judgment impugned is thus, not sustainable in law, which proceeds on erroneous premises. Therefore, following the course which was adopted by a learned Division Bench of this Court in Province of Punjab, Lahore and another v. Shah Rasool and 3 others 1992 CLC 67, while accepting the appeal and setting aside the impugned judgment we remand the case to the learned Senior Civil Judge, Gujranwala for decision of the reference afresh in accordance with law keeping in view all the relevant circumstances as highlighted in the precedents mentioned above and make determination of the compensation afresh. The appeal is accepted with the above observations with no order as to costs. M.B.A./J-67/L Case remanded.