2007 PLP 1507 (MLD)

EJAZ AFZAL KHAN, J.

A land measuring 545 kanals, 3-1/2 marlas situated in village Sheikh Muhammadi, was acquired for the construction of a Housing Colony for Welfare of Army Personnel, vide .Award No.272-75/ADC, dated 25-7-1992. The landowners filed references under section 18 of the Land Acquisition Act to enhancement of compensation, as the one awarded by the Collector was too low, according to them. All the references filed by the respondents were allowed and consequently the compensation was enhanced to Rs.8,000 per Marla. Hence R.F.As. Nos. 30, 98, 99, 100, 106 to 111 and 122 to 124 of 2004 which are disposed of by this single judgment.

2. Mr. Zaffar Ali Shah, appellant, whose reference for enhancement of compensation was dismissed also filed R.F.A. No. 53 of 2002, which is also disposed of with the R.F.As. mentioned above as it also arises out of the same award.

3. The learned counsel appearing on behalf of the appellants argued that the learned Referee Judge while deciding the references did not refer to the evidence on the record and handed down the impugned finding in a vacuum. Many strips of the land acquired, the learned counsel added, are not situated along side the road, therefore, they have to be treated differently from those which are situated along side it. The learned counsel next urged that where no reliable oral or documentary evidence was brought on the record as could show that the property having similar nature and character was ever sold at a price fixed by the learned Referee Judge, the enhancement so made has to be annulled.

4. The learned counsel appearing on behalf of the appellant in R.F.A. No. 53 of 2002 contended that when the strips of land belonging to the appellant are similar to those of the other owners, they were required to be treated alike, therefore, the compensation of his strips of land be also enhanced accordingly.

5. As against that, the learned counsel appearing on behalf of the respondents, in the first instance, raised a preliminary objection as to the maintainability of the R.F.As., by submitting that the Army Welfare Trust is a Company, therefore, no appeal could be competent unless the person filing it, is authorized by a resolution of its Board of Directors. The learned counsel while controverting the other arguments of the learned counsel for the appellants, submitted that where a property situated in the same vicinity having similar nature and character was acquired at the rate of Rs.5,000 per Marla, vide Mutations Nos. 7234 and 7235 attested on 18-10-1991, its value, by no stretch of imagination, could be less than Rs.10,000 per Marla and that the impugned enhancement being based on proper appraisal of evidence, is not open to any interference. One yearly or five yearly average, the learned counsel' submitted does not always afford an adequate basis for determining a fair compensation of the property compulsorily acquired, therefore, a price which a willing purchaser would pay to a willing seller cannot lost sight of. The learned counsel to support his contentious placed reliance on the case of Murad Khan through his widow and 13 others, v. Land Acquisition Collector, Peshawar and another (1999 SCMR 1647) and Province of Sindh through Collector' of District Dadu and others v. Ramzan and others (PLD 2004 Supreme Court 512).

6. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.

7. Notification under section 4 of the Land Acquisition Act in the instant case was issued on 28-9-1991. Besides the one yearly averages of the year preceding or succeeding the said date no convincing oral or documentary evidence has been brought on the record to show that the price of the property was or could be Rs.8000 per Marla at the relevant time. A good number of witnesses were examined in the Court below but the main thrust of their evidence was that the strips of their property are situated along side the Sheikh Muhammadi Road or in the nearby vicinity and as such they can retch much higher price than the one spelt out by the one yearly averages as mentioned above. The only above-board evidence, we can call back upon is that of Mutations Nos. 7234 and 7235 which could furnish a basis for determining a price that a willing 'purchaser would pay to a willing seller. Though it was also used as a sheet anchor by the learned counsel for the respondents to call for enhancement of compensation awarded by the Collector but it could not, in any way, justify the enhancement 'to the extent it was enhanced by the learned Referee Judge. When confronted that a property having a similar nature and character was acquired by the appellants through private negotiation on the basis of the aforesaid mutations at the rate of Rs.5000 per Marla, the same amount could also be fixed for the property acquired in this case, Mr. M. Sardar Khan, learned counsel for the appellants, by finding himself' in a blind alley could not advance any argument except the one that that property was acquired for having access to the property acquired, therefore, that could not be treated at par with the property acquired in this case. But this argument, in our view, is not strong enough to shield the appellants from being beaten with their own weapons. It does not lie in their mouth to raise even a whisper in this behalf, when they themselves have acquired a property of similar nature and character at such rate during the relevant year. Such sales have to be reckoned with and given preference over the one yearly averages. The cases of Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another and Province of Sindh through Collector of District Dadu and others v. Ramzan and others (Supra) may well be referred as authorities for the aforesaid conclusion. We, thus,-hold that compensation of the property acquired in this case could, by no means, the either more or less than Rs.5000 per Marla. The property of the appellant in R.F.A. No.53 of .2002 is also to be treated with the same yardstick.

8. The argument that the Army Welfare Trust is a Company, therefore, no appeal- could be competent unless a person filing it 'is authorized by a resolution of its Board of Directors has no force altogether as the Army Welfare Trust may be a Company in terms of section 3(e) of the Land Acquisition Ac but it is not a Company within the terms of section 2(7) of the Companies Ordinance, 1984. Even if it be so, which is not the case here, such objection cannot be given much weight firstly because he was impleaded as such by the respondents themselves and secondly because it was raised at belated stage. The case of Messrs Dawood Yamaha Ltd. v. Government of Balochistan and 3 others (PLD 1986 Quetta 148), may also be referred in this behalf.

9. The short or long of the foregoing discussion is that we allow R.F.As. Nos. 30, 98, 99, 100, 106, 111 and 122 to 124 of 2004 and by modifying the impugned judgments reduce the amount of compensation from Rs. 8000 per Marla to Rs.5000 per Marla. As we have held above that the market value of the property acquired is, by no means, either snore or less than Rs.5000 per Marla, we also allow R.F.A. No. 53 of 2002 and enhance the compensation of Rs.3000 to Rs.5000 per marla. The respondents in R.F.As. Nos. 30, 98,99, 100, 106 to 111 and 122 to 1.24 of 2004 and the appellant in R.F.A. No. 53 of 2002 shall also be entitled to compulsory acquisition charges permitted under the law and interest at the rate of 6% per annum on the enhanced amount. With the modification mentioned above, all these R.F.As. stand disposed of accordingly along with C.Ms. Benefits of this judgment shall also be extended to the non-appealing owners. H.B.T./122/P Order accordingly.