2014 PLP 659 (SCMR)

TASSADUQ HUSSAIN JILLANI, C.J.

This order shall dispose of Civil Appeals Nos. 1453 and 1454 of 2013 as they are directed against the same impugned judgment.

2. Facts giving rise to the instant appeals briefly stated are that the land measuring 10 marlas owned by respondent No. 1 situated in village Sehajpal, Tehsil Lahore Cantt, District Lahore was acquired by the appellant for the construction of interchange at Ghazi Road, Tehsil Lahore Cantt; the acquisition proceedings were initiated; gazette notification under section 4 of the Land Acquisition Act was issued on 8-5-2006 and published on 9-5-2006 and thereafter proceedings under section 17(4) and (6) of the Act were invoked by issuing the requisite notification on 9-7-2009; notice in terms of section 9 was issued to respondent and other persons for filing their respective claims but respondent No. I did not file any claim or objection in writing; that the Land Acquisition Collector vide the award dated 10-9-2009 determined the quantum of compensation @ Rs. 300,000 per marla along with 15% compulsory acquisition charges for the suit land. Not satisfied with the award, respondent No.1 preferred a Reference under section 18 of the Land Acquisition Act. In terms of the written reply submitted by the appellant, the learned Referee Court framed 8 issues out of which issue No.7 is crucial, which reads as follows:-- "

7. Whether the valuable commercial land of petitioner has been reduced adversely effected and its market value diminished/reduced by splitting/bifurcating it into different categories, if so, what is the property compensation? OPP"

3. Parties were allowed to lead evidence. Respondent produced the oral as well as documentary evidence which is as follows:-- "He produced Muhammad Jamil as A.W.1, Ghulam Siddique as A.W.2, Aurangzeb Malik as A.W.3, Abdul Shakoor, Record Keeper DHA entered his appearance as A.W. 4, Sultan Ahmed Estate Colony Senior Branch Board of Revenue Lahore as A.W.5, Noor Ahmed Senior Clerk Settlement Branch Board of Revenue appeared as A.W.6, Sabir Ali Senior Clerk Secretary (S&R) District Collector Ring Road appeared as A.W.7 and the petitioner himself appeared as A.W.8. (10) On the documentary side the witness of the petitioner submitted Exh.A1 which has been tendered by A.W.1 along with Exh.A

2. Ghulam Siddique A.W.2 has tendered Exh.A3 original agreement to sell dated 9-1-2006. Thereafter Abdul Shakoor A.W.4 tendered Exh.A4 attested copy of Exh.A2 along with Exh.A5 attested copy of payment schedule with respect to commercial plot Phase-VIII. (11) A.W.5 tendered attested copy of Exh.A6 with respect to letter No.2803-2001/2449-CSII. A.W.6 thereafter submitted Exh.A7 copy of the letter No.1819/20-08/1020-S.IV. Sabir Ali A.W.7 tendered Exh.A8."

4. In oral evidence the appellant produced Muhammad Latif LAC as R.W.1, Jananzaib Akhtar Patwari Halqa Sehajpal and Muhammad Ashraf Khan, Assistant Land Control Officer entered appearance as R.W.2 and R.W.3 respectively. Ch. Abdul Majeed Sindhu Main Land Acquisition Collector Ring Road Lahore entered his appearance as R.W.4 and Ahmed Raza Sultan, Land Acquisition Collector appeared as R.W.5. On the documentary side, appellant has submitted certain documents which are Exh.R1 statement of the petitioner allegedly recorded by petitioner while entering his appearance before the Land Acquisition Collector and submitting his objections, Exh.R2 average sale price of Mauza Sehajpal Tehsil Cantt. from 1-7-2006 to 30-6-2007 and Exh.R3 map prepared by the Land Acquisition Authorities. The learned Referee Court enhanced the quantum of compensation to Rs. 600,000 per marla along with 15% compulsory acquisition charges on the ground as follows:-- "Since there is no such criteria and cogent documentary evidence that how the Land Acquisition Collector has assessed the value of the land of the petitioner at the rate of Rs.3,00,000 and how the total property/land is categorized into three categories, as there is no such documentary proof produced by the respondents in support of their respective contention while awarding the compensation at the rate of Rs.3,00,000 when the average sale price which has been produced on file as Exh.R2 is Rs.50,344 per marla on the year 2006 when the notice under Section 4 regarding acquisition of the property was issued, is not understandable. Although the petitioner has claimed compensation at the rate of Rs.56,93,750 per marla which is the rate prevailing at that time in the DHA Phase-VIII commercial area but that compensation cannot be granted to the petitioner, since the property/land was situated outside of the DHA commercial Broadway. But the land of the petitioner has not been properly valued for compensation and splinting of total land into different categories was not in accordance with the law by the Land Acquisition Collector, as such in the light of available record and keeping in view the potential value of the land of the petitioner, adjoining area and all other facts regarding categorization of the land into three categories by the Land Acquisition Collector was not justified without holding an inquiry. Therefore, the Land Acquisition Collector has not adequately compensated the petitioner. The proper compensation for the land of the petitioner was Rs.6,00,000 per marla as the Main Defence Road is also situated near to Khasra No.

718. The issue is decided in the above said terms."

5. The learned High Court, however, vide the impugned judgment allowed respondent's appeal (R.F.A. No.572 of 2012) and dismissed appellant's appeal (R.F.A. No.650 of 2012) and increased the quantum of compensation to Rs. 800,000 per marla by holding as follows:-- "The appellant has placed on record an agreement to sell Exh.A-1 between Urban developer and Muhammad Jamil son of Barkat Ali which shows that on 16-8-2008 the owner of land Muhammad Jamil has agreed to sell 8 marlas plot situated in Block-D Phase 8-C DHA Lahore against consideration of Rs.36 million. Exh.A-2 is an allotment letter of Block-D Phase 8-C. Exh.A-1 and Exh.A-2 are not helpful for the appellant as the same is situated within the boundaries of Defence Housing Authority and admittedly the suit land is not the part of the Defence Housing Authority, it is adjacent to DHA but is not the part of DHA, hence, these two documents could not be considered for ascertaining the compensation of appellant's land. However, the learned Civil Court was not justified for ignoring Exh.A-3, as, the said document is prior to initiation of acquisition proceedings, hence, there is no reason to disbelieve the said document, the said document could be considered for ascertaining the compensation of appellant's land. There is an order passed by the District Office Revenue, District Registrar Lahore regarding land measuring 1 kanal 4 marlas situated at Ghazi Road Lahore. The Deputy Registrar vide order dated 15-3-2008 held that the stamp duty is chargeable on Rs.12,00,000 per marla, the minimum value fixed by the Government of Punjab. The argument of learned counsel for the appellant is that there is ample documentary evidence available on record which shows that the minimum price payable to the appellant is Rs.1.2 million per marla for the purpose of payment of stamp duty and it is not the case of respondents that suit land did not fall within the jurisdiction, of Sub-Registrar Lahore and is not the part of land falling between Bhatta Chowk Defence Road to Garison Mehfoozpura Chowk, the learned referee court has failed to appreciate the evidence available on record."

6. Learned counsel for the appellant submitted that the respondent's appeal was allowed and quantum of compensation was enhanced to Rs.800,000 without any cogent evidence on record qua the market value of the suit land; that the respondent-landowner did not raise any claim in writing with regard to the quantum of compensation when he was issued notice under Section 9 of the Act; that while passing the impugned judgment both the courts did not consider documentary evidence and in particular Exh.R.W.2, Exh.R.W.10 and Exh.R.W.12 which reflected the average sale price of the area in question in the preceding years.

7. Learned counsel for the respondent, however, defended the impugned judgment by referring to the oral and documentary evidence led by the respondent and maintained that the learned High Court kept in view the consideration which should weigh with the Land Acquisition Collector to determine the quantum of compensation under section 23 of the Land Acquisition Act.

8. Having heard learned counsel for the parties at some length, the Court in the spirit of section 89-A of the Civil Procedure Code queried from respondent's learned counsel as to whether an agreement to sell which has been relied upon by the learned High Court to enhance the quantum of compensation would be a tenable evidence particularly when the land subject matter of that agreement to sell had not been sold and whether in the afore-referred circumstances would the respondent be willing to accept Rs.600,000 per marla along with compulsory acquisition charges in terms of the judgment of the Referee Court dated 12-6-2012, to which in all fairness he submitted that the agreement to sell in the facts and circumstances of the instant case could not have been made basis for determining the market value or the quantum of compensation. In this view of the matter he agreed that he has no objection if these appeals are partly allowed and the judgment of the learned Referee Court is restored. Learned counsel for the appellant also did not join issue when asked about this. In view of the fair stand taken by learned counsel for the parties, these appeals are partly allowed, the impugned judgment is set aside and that of the learned Referee Court dated 12-6-2012 is restored. MWA/L-2/SC Order accordingly.