2017 PLP 1761 (MLD)

RAJA SAEED AKRAM KHAN, J.

The titled appeals have been directed against the common judgment and decrees of the High Court dated 18.03.2016, whereby the appeal filed by the appellants, Muhammad Parvez and others has been accepted while the appeal of the appellants Mirpur Development Authority Mirpur (MDA) and others, has been dismissed. As both the appeals arise out of the same judgment, therefore, these are being disposed of through this single judgment.

2. The facts necessary for disposal of instant appeals are that the land of the appellant-landowners, Muhammad Parvez and others, measuring 8 kanal 4 marla, situate at village Sonkia, Tehsil and District Mirpur, was acquired for extension of Mirpur Town/Model Town, Tehsil Mirpur vide award No.03/LAC/07 dated 21.05.2007. The Collector Land Acquisition determined and fixed the compensation of land as Rs.2,86,044.77 per kanal. Feeling dissatisfied, the landowners filed a reference application. The claim of the landowners was that the market value of the acquired land is not less than Rs.60,00,000/- per kanal. The learned Reference Judge after necessary proceedings, enhanced the amount of compensation from Rs.2,86,044.77 to Rs.6,00,000/- per kanal. Both the parties filed separate appeals before the High Court against the judgment and decree passed by the learned Reference Judge. The learned High Court vide impugned judgment dated 18.03.2016, while accepting the appeal filed by the landowners, further enhanced the compensation from Rs.6,000,00/- per kanal to Rs.9,00,000/- per kanal, whereas, the appeal filed by MDA and others has been dismissed. Now the landowners filed the appeal for further enhancement in the amount of compensation while MDA and others filed appeal for restoration of the compensation amount determined by the Collector Land Acquisition.

3. Ch. Muhammad Afzal, Advocate, the learned counsel for the landowners, Muhammad Parvez and others (appellants) argued that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. He contended that the learned High Court while passing the impugned judgment failed to appreciate the evidence brought on record by the landowners in a legal manner. He added that the landowners by producing un-rebutted oral as well as documentary evidence proved that the acquired land is situated adjacent to the developed area of Mirpur city and its market value is not less than Rs.60,00,000/- per kanal but Courts below have not properly taken into consideration the evidence. He submitted that the landowners tendered in evidence the copies of sale-deeds. The learned High Court at one hand observed that the average price of the sale deeds comes to Rs.14,66,183/- per kanal but on the other hand without any justification fixed the compensation as Rs.9,00,000/- per kanal which is against the principle of administration of justice. He further added that the acquired land is of commercial nature as the same situate near to new industrial area, Al-Saif Petroleum, Valley Homes Society and Spintex Mills, etc. He forcefully contended that the learned High Court observed in the impugned judgment that the MDA has fixed the value of a plot measuring 1 kanal as Rs.14,00,000/-, whereas, no such document is available on record to show that MDA fixed the said price. He lastly submitted that the landowners have been deprived of their precious holdings and the grant of compensation as per market value of the land is their right.

4. On the other hand, Mr. Muhammad Reaz Alam, Advocate, the learned counsel for the appellants, MDA and others, also submitted that the learned High Court failed to appreciate the record in a legal manner. He contended that the impugned judgment is based on misreading and non-reading of record which is not maintainable. He added that the kind and location of the land sold through the sale-deeds produced by the landowners, is quite different from the acquired land, therefore, the said sale-deeds could not be considered for determining the market value of the acquired land. He forcefully contended that the landowners miserably failed to prove that the Collector Land Acquisition has not assessed the proper market value of the land but both the Courts below enhanced the compensation mere on flimsy grounds. He added that the price of the plots have been fixed after making development over the acquired land, but the Courts below enhanced the compensation by including the developmental charges into the price of the land which is not warranted under law. He prayed for setting aside the judgments of the Courts below and restoration of the compensation amount determined by the Collector Land Acquisition.

5. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. It is spelt out from the record that the land of the appellant-landowners, measuring 8 kanal 4 marla, situate at village Sonkia, Tehsil Mirpur, was acquired for extension of Mirpur Town. The Collector Land Acquisition determined the market value of the acquired land as Rs.2,86,044.77 per kanal, whereas, the claim of the landowners is that the market value of the land is not less than Rs.60,00,000/- per kanal. The scrutiny of the record shows that in support of the claimed amount, the landowners failed to bring on record any documentary evidence. The copy of sale-deed, Exh.PC, shows that in the year 2005, the land measuring 2 kanal, situate at village Sonkia was sold against a consideration of Rs.34,00,000/-. Through sale-deed, Exh.PD, the land measuring 5-1/2 marla, situate at village Sonkia, was sold against a price of Rs.4,00,000/- and the sale-deed, Exh.PE, shows that one kanal land was sold against a price of Rs.11,00,00/-. From the perusal of the statements of the witnesses produced by the landowners and the statement of one of the landowners, it demonstrates that none of them stated a single word that the land sold through the sale-deeds exhibited and the acquired land are of same potential value, nature, location or adjacent to each other. It will be advantageous to reproduce here the relevant portion of the statement of one of the landowners, Muhammad Pervaz, which reads as under:-- In such state of affairs, the sale-deeds brought on record are not helpful to the case of the landowners. This Court in an unreported judgment titled Muhammad Siddique v. Collector Land Acquisition and others (Civil Appeal No. 78 of 2014 decided on 29.06.2016), while dealing with the proposition has held as under:-- "

10. There is no scientific formula for the purpose of determination of the value of the land. Generally, the estimation to some context may differ according to the peculiar facts and circumstances of each case. In some cases, the kind of land is very much material when the potential value of the land has to be determined keeping in view the agricultural produce value and in such case the market value of the land at large scale may be similar, but in case of urban property, the market value depends upon the prospective value of the land, its use or rental value, even the distance of yards may make difference of millions in its market value. The piece of land located on a road or main street may be of a value many times higher as compared to the piece of land which although is adjacent to road but has no approach to the main road. In such cases mere tendering of sale-deeds is not sufficient unless according to the peculiar facts of each case the land owner has not proved that the acquired land is location-wise similar and its nature, kind or potential value is same as that of the transacted land i.e., the subject matter of the sale-deeds." Similarly, in another unreported judgment titled Muhammad Zaib and others v. Collector Land Acquisition and others (Civil Appeal No.216 of 2015 decided on 29.11.2016), this Court has held that tendering of any document in evidence is not sufficient until the landowner has not proved that the location, nature or potential value of the land sold through the said document and the acquired land is the same. The relevant portion of the judgment reads as under:-- "It may be observed here that only tendering of such document in evidence is not sufficient until the landowners have not substantiate that the location, nature or potential value of the land sold through sale-deeds and the acquired land is the same." Keeping in view the case law referred to hereinabove and the facts and circumstances of the case, we are of the view that the sale-deeds produced by the landowners cannot be made basis for the enhancement in the compensation. The oral evidence available on record appears to be a hearsay evidence. The witnesses of the landowners as well as one of the landowners in their statements have not stated any valid ground/reason for enhancement in the compensation as Rs.60,00,000/- per kanal. On the other hand, the appellants, MDA and others have also failed to bring on record anything through which it can be ascertained that the Collector Land Acquisition properly assessed the market value of the land. In the award it has been mentioned that the market value is determined on the basis of average one year price but the said document has neither been discussed in award nor tendered in evidence. One of the witnesses produced by the MDA and others, Chaudhary Muhammad Zariat, Deputy Director MDA, while recording his statement has deposed that the Collector Land Acquisition determined the compensation amount on the basis of sale-deeds, however, he does not know that upon which sale deeds the Collector relied while determining the compensation. The relevant portion of his statement reads as under:-- The witnesses produced by the MDA and others also stated in their statements that after making development over the acquired land the price of a plot measuring 1 kanal has been fixed as Rs.14,00,000/-. The learned counsel for the landowners submitted that no such document is available on record that the price of a plot measuring 1 kanal is fixed as Rs.14,00,000/- by the MDA. It may be stated that the landowners have also not produced any evidence which may show that the price of a plot measuring 1 kanal is higher than the price shown by the MDA before the Court. As the witnesses produced by the MDA and others stated in their statements that after making developments in shape of construction of roads, sewerage and installation of electricity and other infrastructure, the price of a plot measuring 1 kanal has been fixed as Rs.14,00,000/-, therefore, the learned High Court after computing the expenditure incurred on the development, rightly fixed the compensation as Rs.9,00,000/- per kanal. We deem it appropriate to mention here that although the evidence brought on record by the landowners is not sufficient to make the enhancement in the compensation as claimed by them, however, in the interest of justice keeping in view the principle of preponderance of probability, the learned High Court was justified to make the enhancement in the compensation. Both the parties failed to point out any misreading/non-reading of evidence or any violation of law committed by the learned High Court, hence, we do not intend to interfere with the well reasoned judgment passed by the High Court. For the forgoing reasons both the appeals having no substance are hereby dismissed with no order as to costs. ZC/38/SC(AJ&K) Appeals dismissed.