2013 PLP 1211 (CLC)

CH. MUHAMMAD IBRAHIM ZIA, J.

The captioned appeals are addressed against the common judgment of the High Court dated 31-3-2009, whereby the appeal filed by the S.E. WAPDA and others (hereinafter referred as Company) has been dismissed while accepting the appeal of the landowners, the learned Judge High Court enhanced the compensation of the awarded property.

2. On the requisition of WAPDA the respondent after fulfilment of pre-award formalities under relevant provisions of Land Acquisition Act (Hereinafter referred to be Act), acquired total land measuring 519 kanals, 4 marlas situated at said village for an overall compensation in sum of Rs.16,79,02,875/- inclusive 15% compulsory acquisition charges and thereafter, issued its Award bearing No.32/2006 on 5-10-2006. In wake of the award said piece of land owned by the applicants Rehmat Jan and others comprising Khewats Nos.64-65 and 73, situated at said village stood also awarded for a compensation in sum of Rs.2,19,79,374/-. But, the applicants feeling them dissatisfied with said price of their awarded land, while objecting to validity of the award to extent of their land applied the Collector to refer to matter into this Court for its adjudication in accordance with law whereupon, the matter was referred to Court. The reference was contested and following issues were framed:

(1) Whether the Collector has not assessed the price of the land according to market value? (2) If issue first confirmed what can be the market value of the land? (3) Whether the reference is not maintainable and is liable to be rejected, if so how? Before taking further proceeding the Issue No.3 was considered by the Reference Court and it was decided in favour of the appellant vide order dated 9-1-2007, which attained finality. The appellant, landowner examined Pervaiz Hussain, Muhammad Yousaf and Muhammad Khan and also tendered Exhs.PA and PM. The reference Judge vide judgment dated 16-7-2007 granted additional compensation of Rs.1,00,000/- per kanal. Both the parties feeling dissatisfied, filed appeal in the High Court. The High Court through the impugned judgment dismissed the appeal of the Company and while accepting the appeal of landowners determined the compensation of awarded land Rs.8,00,000/- per kanal irrespective of its kind.

3. The appellants, landowners, have partially challenged the judgment of the High Court on the grounds that they are entitled for compensation of the acquired land @ 5,00,000/- per kanal, which according to their version is the proved market value of the acquired property, whereas, the counter appeal by the company is filed with the prayer of recalling the enhancement of compensation awarded by the High Court as well as the Reference Court and restoration of the compensation of the land assessed by the Collector Land Acquisition.

4. The appellants landowners prayed for further enhancement of the compensation on the following grounds:

(i) that the importent evidence has been non-read by learned Reference Judge Mangla Dam Raising Project Mirpur and the honourable Judge in the High Court lead the honourable Courts to award the compensation less than the market value; (ii) that since 2002 the value of currency has been devalued for several times and the prices of land have been increased almost four times but the honourable Courts have neglected this important aspect of the matter; whereas the grounds on the basis of which the Company prayed for reversal of the judgments of the subordinate Courts, speak as following:

(a) that the respondent failed to prove the reference. The oral evidence produced by the respondent was totally divergent. The compensation on the basis of anxiety of landowners totally in disregard of relevant law specifically sections 23 and 24 of the Land Acquisition Act read with Rule 10 of Land Acquisition Rules. (b) that justice has to be done to both the parties the enhancement of the compensation without evidence which is against judicial norms; (c) that the reference due to violation of mandatory provisions of Order VII(3) of the C.P.C. was not maintainable. (d) that the respondent did not present their claim in response to the notices under sections 9, 10 of Land Acquisition Act. The High Court has adopted the formula of pick and choose by partly relying and partly rejecting the statement under section 19 L.A.A. which is not warranted by law. The finding of the High Court that onus of proof lies on appellants which doesn't stand discharged is not correct in the presence of admission of the respondents. Even no relaxation was sought by the respondent from the reference court advancing reference and subsequent appeal by the respondent are seriously hit by section 25 of the Land Acquisition Act, (e) that the reference in the absence of necessary party was not competent.

5. Sardar Muhammad Azam Khan, the learned counsel for the appellants (landowners) stated brief case history and almost in his arguments, repeated the grounds as incorporated in memo of appeal. He mainly focused on the point that both the Courts have ignored the important piece of evidence while drawing the conclusion for assessment of the market value of the acquired land. He contended with full vehemence that the landowners have claimed Rs.5,00,000/- per kanal compensation and not only proved the same through the cogent evidence, even they have brought on record the documentary evidence according to which the market value of the acquired land accedes Rs.10 million per kanal. He drew the attention of the Court towards the documentary evidence tendered and exhibited in evidence before the Reference Court. While opposing the counter-appeal, he argued that the appeal has been incompetently filed without proper sanction. He further argued that the appellants have got no legal right to file the appeal. Moreover, the appellants have not produced any evidence in rebuttal before the Reference Court, therefore, the stand of the landowners, appellants, remained unrebutted. In view of this fact the counter-appeal is not maintainable. At the end of the day, the learned counsel for the appellants argued with full force that the text of the impugned award is very much clear according to which the land has been acquired in the name of Azad Jammu and Kashmir Government, therefore, the appellants have got no locus standi to file the appeal.

6. Haji Muhammad Afzal, the learned counsel for the appellants (WAPDA and others) while controverting the arguments of the learned counsel for the landowners, argued that the compensation awarded by the Collector Land Acquisition is quite adequate, proper and according to proved marked value of the land. According to his version, both the Reference Court as well as the High Court has fell in error of law and fact by enhancing compensation through the impugned judgment, hence the judgments are not sustainable. He further contended that according to statutory provisions, the landowners have not filed objections, therefore, by attraction of subsection (2) of section 25 of the Land Acquisition Act, they cannot claim any enhancement in the awarded compensation. On the point of competency of appeal, he argued that the appeal has been competently filed with the sanction of the authority. The land is acquired in the name of company, who will have to pay enhanced amount of the compensation, therefore, the appeal on behalf of the company is competent. He refuted the arguments of the learned counsel for the landowners. According to his version, the judgments of both the subordinate Courts are not maintainable. He prayed for the vacation of the same.

7. We have paid our utmost attention to the arguments advanced at the bar by the learned counsel for the parties and also minutely perused the record for proper perception of the moot-point of the lis. The Collector Land Acquisition assessed the compensation in his award issued on 5-10-2006 in the following terms:

The perusal of the text of the award reveals that the Collector has failed to assess the compensation according to the spirit of section 23 of the Land Acquisition Act, and has only founded his conclusion on some notification, which does not meet the purpose of section 23 of the Land Acquisition Act. The landowners have produced witnesses, Pervaiz, Muhammad Younas and Mehmood Khan, whereas their counsel also got his statement recorded in which he has tendered documentary evidence including the certified copies of the sale-deeds. However, neither any witness appeared on behalf of the respondent in rebuttal nor any document is tendered. Thus, the evidence brought on record by the landowners remained unrebutted. The Reference Judge in his decision has discussed the evidence but without drawing any concrete conclusion, based on analysis of the evidence enhanced the compensation Rs.1,00,000/- per kanal in an arbitrary manner. The learned Judge High Court has discussed the evidence in detail and opined that the Reference Judge has fallen in error while ignoring the cogent documentary evidence of sale-deeds. The High Court fixed the market value of land as Rs.8,00,000/- per kanal. The landowners have unrebuttedly proved the acquired land is situated in Municipal limits of Mirpur and it has also been proved that due to expansion of the town, the acquired land's nature has been converted into urban commercial property. The notification under section 4 of Acquisition of Land Act was issued on 27-1-2005. The Collector Land Acquisition in his award has referred only two sale-deeds executed on 24-12-2004 and 21-1-2004, according to which the per kanal rate is Rs.7,80,000/- and 4,50,000/- respectively. The learned High Court has also discussed documentary evidence Exh.PK, the copy of sale-deed executed on 15-10-2005. Through this sale-deed land measuring 2 kanals, 9 marlas from the same village Kalyal Sheroo has been sold against the price of Rs.28,0000/- means Rs.11,42,857/- per kanal. The landowners also brought on record Exh.PA, (the copy of the notification) issued by the Collector of the District on 31-12-2002, according to which he has fixed valuation of the land of Kalyal Sheroo Rs.39000/- per marla under section 27-A of the Stamps Act, 1899, which suggests per kanal price Rs.7,80,000/-. The landowners has also tendered in evidence the certified copies of the transfer orders of the plots situated in the adjoining sector Khambal issued by the Municipal Corporation Mirpur, according to which the market value appears to be higher than Rs.50,0000/- per kanal. All this evidence remained unrebutted, the deposition of witnesses on important factual points has also not been questioned in cross examination. In our estimation, in presence of documentary evidence Exhs.PK and PJ, the discussion and consideration of other evidence is not necessary.

8. The propriety of law demands that in presence of the cogent documentary direct evidence Exhs.PK and PT relating to market value of property of the locality, the evidence relating the adjacent or adjoining areas need not to be considered. The learned High Court has rightly discussed the case-law on the point of determination of the market value. According to law the spirit of all these legal precedents for determining the quantum 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.

9. It is now almost settled that the assessment of the compensation mere with reference to the time of publication of Notification under section 4 of Act is not an absolute yardstick even the Court may consider the future potential of the acquired property. This view is consistently followed by the Courts, this court, while dealing this point in a case reported 1996 SCR 132, observed:

"It may be pointed out that while assessing the market value, the land is not to be valued merely by reference to the use for which it was being made at the relevant time but also the use to which it can reasonably be put in future." While dealing the question of potential of the property and other factors this Court in a case reported as Muhammad Maroof Khan v. The State and 4 others (1996 SCR 136) observed:

"It is evident from the case-law cited at Bar that the Supreme Court of Pakistan and this Court have taken the view that if the geographical position of the land acquired is such that it has the potential for being put to the use for business or the same can be used for the construction of the residential accommodation, the market value of the land can be based even on the sale-deeds which pertain to smaller portion of land. The authorities cited by the learned counsel for the appellants are distinguishable because in those authorities the concerned owners of the land sought assessment of the market value on the basis of small portions of the land over which houses had also been constructed. In the instant case the compensation of the land was not being worked out on the basis of the land over which the houses had been constructed. Even according to the Collector Land Acquisition, the market value of the land in question on the basis of the sale-deeds comes to Rs.60,000/- per kanal. However, he allowed the compensation at the rate of Rs.18,000/- per kanal on the ground that the sale- deeds on the basis of which the market value of the land in question comes to Rs.60,000/- per kanal pertained to the small pieces of the land. This argument did not weigh with the High Court and we are also of the opinion that this was rightly done so in view of the dictum of the Supreme Court of Pakistan and this Court laid down in the case referred to above." The same view is reaffirmed in Abdul Aziz v. AJK's case 2010 SCR 47 after survey the plethora of judgments, the question of potential value of the property specially with reference of nature and kind of land resolved by this Court as following:

8. "Section 23 was subsequently amended through West Pakistan Ordinance 49 of 1969 whereby the ambit of matters to be considered was widened and it was in this background that the Courts in the country emphasized the phenomenon of potential value of the land. This term potential value is only a one word used for the future uses which the land can be put to. In Malik Aman's case (PLD 1988 SC 32) this Court had explained the feature of potential value and had differentiated the same from the term "market value". It was held that market value was normally to be taken as one existing on the date of Notification under section 4(1) of the Land Acquisition Act under the principle of willing buyer and willing seller while the potential value was explained to be one to which the similar lands could be put to any use in future. Factors for determining compensation of land are not restricted only to the time of the aforesaid Notification but can also relate to period in future and that is why in a large number of cases the 'potential value' has been held to be relevant factor." The apex Court of the Islamic Republic of Pakistan also enunciated the same principle of law in a report PLD 2004 SC 512 para 10 of the judgment speaks:

"Similar view was taken by this Court in Land Acquisition Collector Abbottabad v. Muhammad Iqbal (1992 SCMR 1245 at 1255-K). In the case of Pakistan Burmah Shell (1993 SCMR 1700), it was once again reiterated that consideration of market value at the time of Notification under section 4 of the Land Acquisition Act was merely one of the modes for ascertaining the market value and was not absolute yardstick for assessment of compensation. Numerous matters to be considered for determining compensation were elaborately laid down by this Court in Murad Khan's case (1999 SCMR 1647) which was again relied upon in Nisar Ahmed's case (PLD 2002 SC 25). The crux of the matter is that mere classification or nature of land may be taken as relevant consideration but not as absolute one. An area may be 'banjar' or `Barani' but its market value may be tremendously high because of its location, neighborhood, potentiality or other benefits. All these factors, therefore, cannot be ignored." In the case in hand the notification under section 4 has been issued on 17-1-2005 and the award was issued on 5-10-2006, whereas the sale-deed Exh.PK is executed before issuance of the award, in our estimation, it is the most cogent and credible piece of evidence, which reflects the actual bona fide market value of the land of the locality. According to this piece of evidence, in October, 2006 the market value of the land in the locality was above Rs.11,42,000/- per kanal. However, after proportionate reduction with reference to dates of the publication of notification under section 4 of the Act and registration of the sale-deed, the assessment of market value of the land cannot be less than one million rupees per kanal.

10. As the main controversy among the parties relating to determination of the market value and compensation has been concluded positively in favour of the appellant, therefore, the nature of other ancillary and incidental questions raised on behalf of both the parties remains mere academic. Even otherwise the learned High Court has properly attended all the questions in proper perspective. The findings recorded by the High court are quite consistent with the principle of law and justice, which do not suffer from any legal infirmity, nor requires further deliberation.

11. For the above stated detail reasons, Appeal No.61 of 2009 filed by the landowners is partly accepted and by modifying the judgment of the High Court the market value of the acquired land of the appellant is determined Rs.10,00,000/- per kanal. The appellants are also entitled for other benefits including 15% compulsory acquisition charges. Consequently the counter-Appeal 46/2009 filed by the Company stands dismissed without any order as to costs. SAK/64/SC(AJ&K) Order accordingly.