2020 PLP 30 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this single judgment we intend to decide the instant Regular First Appeal as well as R.F.As at Sr. Nos.1 to 108 mentioned in Annexure "A" appended with this judgment, as common questions of law and facts are involved in all the appeals.

2. Through this regular first appeal filed by the land owners the judgment dated 31.10.2011 passed by the learned Senior Civil Judge, Attock (Referee Court) has been challenged whereby the references were accepted but not to the satisfaction of land owners.

3. All the appeals arise out of the judgment passed by the learned Senior Civil .Judge, Attock (Referee Court) on 31.10.2011 whereby he accepted the references filed under section 18 of the Land Acquisition Act, 1894 (hereinafter it will be mentioned as "Act" for brevity) by the land owners for enhancement of compensation awarded to them by the Land Acquisition Collector vide his award dated 18.08.1992. The land measuring 29178-kanals 07-marlas situated in villages Burhan 27510.7-kanals, Jallo 1630.30-kanals, Islamgarh 37.12-kanals was acquired by the Land Acquisition Collector for extension of Pakistan Ordnance Factory Wah Cantt. A notification under section 4 of the Act was issued for the purposes of acquisition in question on 28.07.1990 and a corrigendum of said notification was issued on 19.12.1990. The notices under section 9 of the Land Acquisition Act, 1894 were also issued on 26.09.1992 inviting the objections from them as to their claim for compensation of the land sought to be acquired. The cost of award worked out by the Revenue Department for the land comprised in the notification under section 4 of the Act for the purposes of acquisition aforementioned came to Rs. 7,76,26,518.78. The amount so worked out by the Revenue Department was deposited by the Pakistan Ordnance Factory on 24.07.1991. As the Acquiring Authority needed the land urgently, therefore, notifications under section 17(4) of the Act and declaration under section 6 of the Act were also issued on 24.08.1991. The Land Acquisition Collector after affording such opportunity of hearing to the parties concerned as was warranted by law gave his award on 18.08.1992. The detail of categories of land and compensation per kanal worked out by the Land Acquisition Collector is reproduced as under:-- Name of village Kind of land Area K - M Rate per kanal Total cost Burhan Chahi Aabi Salab 1-12 13902.00 22,243.00 Maira Rakkar Lass 10176-14 3981.00 4,05,17,513.38 Banjar Qadeem 3395-11 1990.70 67,59,521.38 Ghair Mumkin 13936-16 995.35 1,38,71,993.88 Total 27510-13 6,11,71,271.84 Jallo Chahi Aabi Selab 210-04 13,902.00 29,22,200.40 Maira Rakkar Lass 672-14 3,981.40 26,78,287.78 Banjar Qadeem 211-07 1,990.70 4,21,729.79 Ghair Mumkin 535-07 995.35 5,32,860.62 Total 1630-02 65,55,078.59 Islam-garh Maira Rakkar Lass 37-12 3,981.40 1,49,700.64 Total 37-12 3,981.40 1,49,700.64 Total 29,178-07 Rs.6,78,76,.051.07 15% compulsory acquisition charges Rs.1,01,81,407.66 Total Rs.7,80,57,458.73 8% compound interest from 17.9.1991 to 31.7.1992 (10 months and 15 days) Rs.54,64,022.11 Total Rs.8,35,21,480.84 Cost as explained in para 28 55,66,366.00 Cost as explained in para 29 13,15,709.00 Cost as explained in para 30 22,60,000.00 Cost as explained in para 31 18,33,200.00 Cost as explained in para 32 77,115.00 Cost as explained in para 33 86,700.00 Grand Total Rs.9,29,60,570.84 An amount of Rs.9,29,60,570.84/- was awarded by way of compensation to the land owners. Apart from the aforesaid award which related to the land, only a supplementary award was also made by him which was related to the trees and structures standing on the land acquired and subject matter of the earlier award. This way he awarded Rs.43,62,391/- against supplementary award for trees and structures standing on the land. Thus, total amount awarded by the Land Acquisition Collector for the land as also for the trees and structures standing thereon, worked out as Rs.9,73,22,991.84. The land owners feeling dissatisfied with the compensation as awarded to them by the LAC filed references/applications before him under section 18 of the Land Acquisition Act, 1894. The LAC in due course of time forwarded the same to the learned Senior Civil Judge, Attock for determination of compensation afresh under section 18 of the Land Acquisition Act. The learned Senior Civil Judge, Attock (Referee Court) after securing the written statement/written replies of the Acquiring Department framed the issues on the references and after recording' the evidence and after affording such opportunity of hearing to the parties as was warranted by law decided the references/applications vide his order aforementioned and enhanced the compensation to the tune of Rs.27,86,88,408/-. Being aggrieved by the enhancement of compensation ordered by the learned Senior Civil Judge, Attock, province of Punjab preferred R.F.As. Nos.355, 356, 360 to 514 of 1993. All the appeals were allowed vide consolidated judgment dated 03.06.1999 and matter was remanded to the learned Referee Court. Para 7 of the judgment is relevant and will be helpful, therefore, it is reproduced as under:- "As we have come to the conclusion that the decision of the learned Senior Civil Judge, Attock is based only on the statement of Syed Masood Ahmad Shah which as aforesaid, was not authorized to make the statement of the nature which he did, we are of the view that the ends of justice shall be best served to accept these appeals and to remand the references back to the learned Senior Civil Judge with the direction that he shall decide the same within a period of three months on the basis of the evidence on the record brought by the parties."

4. After remand learned Senior Civil Judge, Attock (Referee Court) vide judgment dated 12.12.2000 while agreeing with the reasons given by the LAC and holding that the rates of acquired land fixed by him are justified, hence, rejected the references. The land owners came to this Court through R.F.As. Nos. 125, 116 of 2001, 07 to 32, 46, 47, 57, 59 to 62, 96, 97, 122 and 189 of 2003, 158, 174 and 192 of 2004, 12 and 13 of 2005. This Court was again pleased to accept the appeals vide judgment dated 03.06.2009 and remanded the matter to the learned Senior Civil Judge, Attock (Referee Court). Para 6 of the judgment is reproduced as under:- "For what has been discussed above, we allow these appeals and remand the proceedings to the Referee Court again for decision afresh, after taking into consideration the evidence available on record, especially the exhibit referred - to and mentioned in the preceding paragraphs and the precedents cited above in detail, giving cogent reasons in this respect. The exercise be preferably completed within a period of two months from the date the parties appear before the concerned Court. The parties to appear before the District Judge, Attock, on 22.06.2009, who will entrust the matter to a Court of competent jurisdiction for adjudication as observed above."

5. Again Referee Court vide judgment dated 31.10.2011 decided the references by fixing the award of compensation of acquired land in the following way:- For Chahi, Aabi Selab Rs.18902/- per kanal For Moira, Rakkar and Lass Rs.7981.40/-per kanal For Banjar Qadeem Rs.3990.70/-per kanal For Ghair Mumkin Rs.1995.35/-per kanal Being dissatisfied by the said decision the land owners filed the instant appeal as well as the appeals at Sr. Nos.1 to 39 and the Federation of Pakistan also filed appeals at Sr. Nos. 40 to 108 as mentioned in Annexure "A" appended with this judgment.

6. The learned counsel for the appellants have argued that learned Referee Court has not attended to the observations made by this Court while remanding the matter and further that average sale price of one year was taken into consideration which is against the law. The potential value of land and market price has not been considered. The voluminous evidence produced in shape of documents as well as unchallenged statements of P.W-2 and P.W-3 has been ignored. Further argued that the cultivable land has been given same value, whereas the land which was recorded as Banjar or other categories have been given less value despite the fact that in major area of acquired land there is hoard of Limestone. Further that the law declared by this Court as well as the august Supreme Court of Pakistan for fixation of the price of acquired land has been ignored. Pray for acceptance of the appeals filed by the landowners and dismissal of appeals filed by the Federation of Pakistan.

7. On the other hand, learned counsel representing the Federation of Pakistan as well as learned Assistant Attorney General for Pakistan state that even the value fixed by the learned Referee Court has been challenged by the Federation of Pakistan through filing of appeals and the value fixed by the learned Referee Court of Null Chahi land is on higher side, therefore, state that the award was rightly announced and it was in accordance with law. Pray for dismissal of the appeals filed by the landowners and acceptance of the appeals filed by the Federation of Pakistan.

8. We have noticed that some of the appeals either filed by the landowners or by the Federation of Pakistan are barred by time. As the award under challenge in all the appeals as well as the judgment of learned Referee Court is the same and previously after setting aside the judgment of learned Referee Court matter was remanded twice, therefore, matter is being scrutinized as a whole and thus the delay is condoned in such appeals in the light of judgment of august Supreme Court of Pakistan reported as "Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others" (2019 SCMR 524) as well as the judgment reported as "Bashir Ahmad v. Mst. Taja Begum and others" (PLD 2010 Supreme Court 906).

9. In remand order passed by this Court in R.F.A. No,125 of 2001 dated 03.06.2009 it was observed in Para 6 that though the evidence was adverted to but not scanned and appraised properly as directed especially Ex.P-3 to Ex.P-6, Ex.P-14, Ex.P-22, Ex.P-42 and Ex.P-50 were not considered properly. In later part it was further observed that the land adjacent to the disputed land stands assessed at a much higher value ranging between Rs.29,199/- to Rs.60,000/- per kanal.

10. We have noticed that Ex.P-3 is mutation No.331 attested on 30.10.1991 of sale of 10-marlas land for a consideration of Rs.20,000/-, Ex.P-4 is mutation No.282 attested on 13.03.1989 of sale of 10-marlas land for a consideration of Rs.20,000/-, Ex. P-5 is mutation No. 346 attested on 20.03.1991 of sale of 10-marlas land for a consideration of Rs. 22,000/-, Ex.P-6 is mutation No.324 attested on 14.06.1990 of sale of 03-kanals land for a consideration of Rs.3,50,000/- and EX.P-14 is mutation No.286 attested on 19.08.1989 of sale of 03- kanals land for a consideration of Rs.72,000/-.

11. We have further observed that in the award mainly the committee constituted by the Board of Revenue was relied upon and the assessment of compensation of land made by that committee was considered, whereas in accordance with the law declared by the august Supreme Court of Pakistan through the judgment reported as "Province of Punjab through Collector v. Engineer Jamil Ahmad Malik and others" (2000 SCMR 870) a committee constituted by the Board of Revenue for determination of value of land for compensation of acquired land has no value. Actually the value must be determined in accordance with formula that a willing buyer to pay the willing seller. On the principle of "potential value" of land the compensation is to be assessed. Reliance can be placed upon "Malik Aman and others v. Land Acquisition. Collector and others" (PLD 1988 Supreme Court 32).

12. The potential value of the acquired land and its surroundings must be kept in mind while determining the value of land for compensation. Reliance is placed upon "Land Acquisition Collector, G.S.C., and another v. Mst. Surraya Mehmood Jan" (2015 SCMR 28). We quote paragraph 9 of the judgment for ready reference:-- "The principles that can be gleaned from the aforesaid judicial precedents are that the term "market-value" as employed in section 23 of the Act of 1894 implies the price that a willing purchaser would pay to a willing buyer in an open market arms length transaction entered into without any compulsion. Such determination must be objective rather than subjective. While undertaking this exercise, contemporaneous transactions of the same, adjoining or adjacent as well as the land in the same vicinity or locality; in dissenting precedents, may be taken into account. An award of compensation of a similar, adjacent, adjoining land or in respect of the land acquired in the same vicinity or locality cannot be ignored. The classification of the land in the Revenue Record cannot be the sole criteria for determining its value and its potential i.e. the use-of which the said land can be put, must also be a factor. In this behalf the use of the land in its vicinity needs to be examined. A bare reading of the provision in question i.e. section 23 of the Act of 1894 reveals that the landowner is entitled to compensation and not just market-value, hence, loss or injury occasioned by its severing from other property of the landowner, by change of residence or place of business and loss of profits are also relevant. The delay in the consummation of the acquisition proceedings cannot be lost sight of. While conducting the aforesaid exercise, oral evidence, if found, credible and reliable can also be taken into account." We further rely upon the judgments reported as "Nisar Ahmad Khan and others v. Collector, Land Acquisition, Swabi and others" (PLD 2002 Supreme Court 25), "Government of N.W.F.P. through Collector, Mardan and others v. Abdul Samad Khan and others" (PLD 2002 Supreme Court 422), "Province of Punjab through Land Acquisition Collector and another v. Begum Aziza" (2014 SCMR 75). We have noticed that Land Acquisition Collector as well as in the subsequent orders of learned Referee Court nature of land on the basis of agricultural purposes has been kept in mind. We deem it necessary that the nature noted by the learned Referee Court in its order, when first time the reference was decided vide order dated 13.05.1993, should be re-produced here. We take benefit to quote nature of land by the learned Senior Civil Judge, Attock (Referee Court) at this stage. We must appreciate that in those days there was a good assistance by the officers of the Court and the Courts were also to record findings after due probe and having rich ability of experience to appreciate the facts and the law. The learned Senior Civil Judge, Attock (Referee Court) has noted that the definition of kinds of land mentioned in the award are taken from "" which are as under: By perusal of all these categories it is clear that this classification of land is relatable to the value of land for the purposes of cultivation only. It is nothing to do with the matter of acquisition as the matter of acquisition relates to the potential value of land as it is clear through the judgments of august Supreme Court of Pakistan. Needless to observe that the evidence on record shows that there is big hoard of limestone in the acquired land. In our view the potential value for the purposes of extension of Pakistan Ordnance Factory will be same for the land of category of Maira, Rakar, Lass, Banjar Qadeem, Ghair Mumkin and Chahi as the land is not being acquired for the purposes of agriculture. It is being acquired for the purposes of construction of a Factory. In our view keeping in view the potential value of the land which is the same as it consists upon three Mouzas which are adjacent and the land measuring 29178-kanals 07-marlas is within one block. Through Ex.P-20 in adjacent Mouza rate was fixed as Rs.34,500/- per kanal, though that portion of land was within the municipal limits. It was fixed by the Referee Court vide order dated 30.07.1992 as Rs.25,000/- per kanal for whole of the land without any classification along with necessary acquisition charges as well as compound interest in accordance with section 34 of the Land Acquisition Act, 1894 from the date of taking the possession till the date of payment.

13. We have further requisitioned the record of five appeals bearing R.F.As. Nos. 61 and 76 to 79 of 1992 decided by this Court vide judgment dated 07.05.2008, which were partially accepted by this Court and the rate fixed by the learned Referee Court as Rs.34,500/- against the compensation determined by the LAC as Rs.15,776/- was modified by this Court and compensation of Rs.30,000/- per kanal was awarded. The judgment of this Court was further assailed by Askari Cement Limited before the august Supreme Court of Pakistan through Civil Appeals Nos.563 to 567 of 2008, which were dismissed vide judgment dated 12.06.2013. Besides documentary evidence before us there is oral evidence of P.W-2 Barkat Ali Khan and P.W-3 Anayat Ullah. During the statement of Anayat Ullah in cross-examination single question was put to him that all the effectees were properly compensated, no part of his statement was rebutted or cross-examined. The position of P.W-2 is that on main points stated by him were not cross- examined. Needless to observe that a portion of statement which remains un-challenged in the cross-examination is deemed to have been accepted. There is no. rebuttal of his statement that towards western side of the suit land there is populated area of Burhan, towards West and North G.T. road and Railway line, towards east there is industrial area of Hassan Abdal where there are Gunj Glass Factory, Chand Ghee Mills, Khawaja Glass Factory, Texila Cotton Mills, Neelum Glass Factory and marble factory etc and towards South there are crushers of limestone. The whole of the area towards East and West is about five to six kilometers in length along with G. T. Road. The suit land is industrial, commercial and residential. There are hotels, petrol pumps, brick kilns, bricks plant etc. There is electricity and gas facility also. Therefore their claim is that at least Rs.50,000/- to Rs.60,000/- per kanal they are entitled for compensation.

14. We are further guided by the law declared by the august Supreme Court of Pakistan for determination of market value and potential value of the land through the judgment reported as "Secretary to Government of N.-W.F.P., Peshawar and 15 others v. Haji Fateh Khan and 15 others" (2001 SCMR 974). The relevant guideline is as under:- "(i) That an entry in the Revenue Record as to that nature of the land may not be conclusive, for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable for becoming Chahi land; (ii) that while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered; (iii) that the market value of the land is normally to be taken as existing on the date of publication of the notification under section 4(1) of the Act but for determining the same, the price on which similar land situated in the vicinity was sold during the preceding 121 months and not 6-7 years back, may be considered including other factors like potential value-etc." We further take light from the judgment of august Supreme Court of Pakistan reported as "Province of Sindh through Collector of District Dadu and others v. Ramzan and others" (PLD 2004 Supreme Court 512). Paragraphs Nos. 7 and 9 of the judgment are as under:-- "

7. The most important, aspect qua the lands compulsorily acquired is, that the mandatory returns proposed to be given to the landowner is the compensation and not the market value. Very section 23 provides for various matters to be brought under consideration while determining compensation. Market value is only one of such matters to be considered by the Collector or Courts. Compensation is a very wider term indicating that the landowners, for various reasons, is to be compensated and not merely paid the price of land which is just an interaction of supply and demand fixed between a willing buyer and willing seller." "

9. This Court had also taken notice of the fact that the announcement of award is some times unreasonably delayed after the issuance of Notification under section 4 of the Act. In Malik Aman's case, the period that had elapsed was seven years. Obviously any escalation in the value of property during such period is a potential value of land which must be taken into consideration." It is worth consideration from the judgment of august Supreme Court reported as "Haji Muhammad Yaqoob and another v. Collector, Land Acquisition/Additional, Deputy Commissioner, Peshawar" (1997 SCMR 1670). We quote abstract in shape of paragraph No.6 from the judgment, which was noted from the case of "Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. and 3 others" (1993 SCMR 1700), as under:-- "We are not inclined to consider persuaded to strike off the award on the rectitude of these submissions. Section 23 makes mention of various matters to be considered in determining the compensation. One of such factors enumerated therein is that the date relevant for determination of market value is that date of the notification under section

4. Not unoften the market value has been described as what a willing purchaser would pay to the willing seller. It may be observed that in assessing the market value of the land, its location, potentiality and the price evidenced by the transaction of similar land at the time of notification are the factors to be kept in view. One year's average of the sales taking place before the publication of the notification under section 4 of similar land is merely one of the modes for ascertaining the market value and is not an absolute yardstick for assessment."

15. We consider six elements for determination of compensation of acquired land in the light of judgment reported as "Government of Sindh and 2 others v. Syed Shakir Ali Jafri and 6 others" (1996 SCMR 1361). Hence, we would like to quote said six elements mentioned in paragraph 7 of the judgment as under:- "

7. Section 23 of the Act provides that in determining the amount of compensation to be awarded for the land, acquired under this Act, the Court shall take into consideration first; the market value of the land at the date of the publication of the notification under section 4, subsection (1), secondly, the damage sustained by the persons interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide 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. Subsection (2) of section 23 reads: (2) In addition to the market-value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition."

16. After considering the facts of the case, the evidence available on the file and the case law referred and noted supra we are of the view that the categories made by the Land Acquisition Collector of the classification of land has no value for the purposes of acquisition. The whole of landowners are to be compensated in accordance with potential value. Admittedly the land was acquired for extension of Pakistan Ordnance Factory, therefore, potential value as well as market value of the whole land will be the same in our view and on the basis of consideration of documentary evidence in shape of Ex.P-3, Ex.P-4, Ex.P-5, Ex.P-6 and Ex.P-14 and the statements made by P.W-2 and P.W-3. The value at the time of acquisition of land was at least Rs.30,000/- per kanal.

17. So, in the light of the above, while modifying the judgment dated 31.10.2011 passed by the learned Senior Civil Judge, Attock (Referee Court) we allow the instant appeal as well as R.F.As at Sr. Nos.1 to 39 mentioned in Annexure "A" annexed with this judgment filed by the landowners and fix the value of Rs.30,000/- per kanal for the purposes of acquisition and compensation of acquired land. Needless to state that they will be entitled to 15% necessary acquisition charges as well as compound interest in accordance with section 34 of the Land Acquisition Act, 1894. Whereas, we dismiss R.F.As at Sr. Nos.40 to 108 mentioned in Annexure "A" annexed with this judgment filed by the Federation of Pakistan. SA/Z-24/L Order accordingly.