2017 PLP 440 (CLC)

MOHAMMAD AZAM KHAN, C.J.

The above titled appeals by leave of the Court arise out of a consolidated judgment of the High Court dated 13th, February, 2013, whereby separate appeals filed by the appellants, herein, have been dismissed. Since all the appeals arise out of the same judgment and identical question of law and facts are involved, therefore, these are being disposed off through this common judgment.

2. The Collector Land Acquisition, Mangla Dam Raising Project through Award No.17 of 2007 acquired the land of the appellants in all the three appeals, situate at village Peal Bakhshi Molraj, Tehsil Dadyal, District Mirpur and assessed the compensation amount as Rs.50,000/- per kanal for the kind of land Ghair-Mumkin and Rs.75,000/- per kanal for the land Banjer Qadeem. Dissatisfied from the compensation, the appellants filed reference applications before the Collector Land Acquisition, Mangla Dam Raising Project, Mirpur which were entrusted to the Reference Judge. All the references were consolidated by the Reference Judge through order dated 26th December, 2007 and proceedings were conducted in the reference titled Abdul Latif and others v. Collector Land Acquisition and others. After recording the evidence, the Reference Judge through judgment and decree dated 31st May, 2008, enhanced the compensation amount as Rs.100,000/- per kanal for the kind of land Banger Qadeem, Rs.75,000/- per kanal for its kind Ghair Mumkin and Rs.5,50,000/- per kanal for its kind Ghair Mumkin School, along with 15% compulsory acquisition charges. Dissatisfied, the appellants as well as the WAPDA filed separate appeals in the Azad Jammu and Kashmir High Court. The learned Chief Justice of the High Court through the impugned judgment and decree dated 13th February, 2013, dismissed all the appeals, hence these appeals by leave of the Court.

3. Sardar Muhammad Azam Khan, Advocate, counsel for the appellants, submitted that the judgment of the High Court is against law and the record. The notifications under section 4 of the Land Acquisition Act, 1894, (hereinafter to be referred as Act, 1894) were issued on 26th December, 2005 and 6th April, 2006. The award was drawn on 14th May, 2007. The learned counsel submitted that after issuance of the notifications under section 4 of the Act, 1894, the Collector Land Acquisition, in the light of Rule 10 of the Land Acquisition Rules, 1994, wrote to the Sub-Registrar, Dadyal for sending the average price of the sale-deeds, registered during one year prior to the issuance of notifications under section 4 of the Act, 1894. The Sub-Registrar, Dadyal, reported that during the last one year no sale-deed has been executed in village Peal Bakhshi Molraj. The average price of the land in the adjacent village "Chattro" was determined as Rs.8,33,333/-. Per kanal for Banger Qadeem and sent to the Collector. The Collector while relying upon the same, assessed the compensation after the approval of Commissioner, Mangla Dam Affairs. The learned counsel submitted that under law if no Sale-deed of the village from where the land is acquired, is available then sale-deeds of the adjacent village have to be relied upon. The compensation amount cannot be determined on the basis of Rule 10 of the Land Acquisition Act, 1894. He relied upon the case reported as Ejaz Ahmed Mir v. Collector Land Acquisition and 3 others [2013 SCR 603]. The learned counsel further submitted that the appellants produced in evidence the sale-deed Ex."PB", registered on 2nd December, 2006, pertaining to the village Peal Bakhshi Molraj, where one kanal land has been sold against the price of Rs.10,40,000/-. The respondents failed to produce any evidence in rebuttal. They have produced copy of mutation registered in year 1997, through which the land measuring 1 kanal has been sold against the price of Rs.3,50,000/-. The said sale-deed was registered 10 years prior to the issuance of the award. The Reference Judge committed an illegality while not relying upon the price mentioned in Ex."PB" and the price of Village "Chattro". The learned counsel referred to and relied upon the cases reported as Abdul Aziz v. Azad Government and 2 others PLD 2010 SC (AJ&K) 37 Maqsood Bibi and 6 others v. Collector Land Acquisition, Mangla Dam Raising Project Mirpur (Zone-I) and 2 others [2013 SCR 973] and Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project, (Zone-I) and 2 others [2013 SCR 1224]. In the case reported as Ejaz Ahmed Mir v. Collector Land Acquisition and 3 others [2013 SCR 603] the matter came under consideration of this Court in the circumstances that the land of different land owners was acquired for Mangla Dam Raising Project. The compensation was assessed in the light of rule 10 of the Land Acquisition Act, 1894. This Court observed that rule 10 is not relevant for determination of the market value for the purpose of award. It was observed as under:- "It has categorically been held that provisions of rule 10 have no nexus and application for determination of market value for the purpose of award. Following the view we hold that the compensation assessed by the Collector Land Acquisition in the light of same notifications issued by the Commissioner under rule 10 is against the legal provisions. The compensation can only be assessed under Sections 23 and 24 of the Act. The provisions of rules 10 and 12 and amended rules are consistent with the Act. Rule 10 clearly postulates that the compensation be assessed keeping in view the factors laid down in sections 23 and 24 of the Act. The amendment in rules is not in conflict with the Act." In the case reported as Abdul Aziz v. Azad Government and 2 others (PLD 2010 SC (AJ&K) 37) this Court observed that while determining the compensation the Court has not only to fix the compensation according to the market value of the land at that particular time, but it has also to keep into consideration the future value of the land. In the case reported as Maqsood Bibi and 6 others v. Collector Land Acquisition, Mangla Dam Raising, Project Mirpur (Zone-I) and 2 others [2013 SCR 973], this Court observed that no sale-deed was executed in the village 12 months prior to the date of issuance of the notification. The proper course for the Collector Land Acquisition was to consider the sale-deeds in the adjacent villages. It was observed that when the Collector Land Acquisition himself assessed the compensation on the basis of sale-deeds .of adjacent villages, the appellants are entitled for compensation at the same rate. In the case reported as Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project Zone-I and 2 others [2013 SCR 1224] it was observed by this Court that determination of market value on the basis of sale-deed registered 12 months, prior to issuance of notification under section 4 of the Land Acquisition Act, 1894 is not a sole criteria.

4. Ch. Shah Wali, Advocate, another counsel for the appellants argued that the judgment of the High Court is against law and the record. He submitted that the Collector Land Acquisition himself sought average value of the land one year prior to the issuance of notification under section 4 of the Act, 1894 of adjacent village "Chattro" and determined the market value of Banjer Qadeem which comes to Rs.8,33,333/- per kanal. After determining the same, the Collector Land Acquisition cannot assess the same less to the assessed compensation. The learned counsel submitted that the land is adjacent to Siakh Hamlet and the witnesses of the appellants stated in the open Court that the land acquired can be utilized as commercial land. It has more potential to be utilized for residential as well as commercial purpose. The Collector Land Acquisition and the Reference Judge have not considered this evidence. The High Court has also failed to consider this aspect of the case. He submitted that it is a clear case of misreading and non-reading of evidence. There is no evidence in rebuttal. He requested for acceptance of the appeals.

5. While controverting the arguments Mirza Zaidullah, Advocate, counsel for the respondents, submitted that the judgment of the High Court is perfectly legal. There are concurrent findings of the facts recorded by the Collector Land Acquisition and the Reference Judge which have been affirmed by the High Court. The appeals merit dismissal. He referred, to and relied upon the case reported as Land Acquisition Collector, Sargodha and another v. Muhammad Sultan and another [PLD 2014 SC 696]. In the case reported as Land Acquisition Collector, Sargodha and another v. Muhammad Sultan and another [PLD 2014 SC 696], the Supreme Court of Pakistan observed that when the acquiring authority was proceeded ex parte, then it was incumbent for the land owner to prove his assertion by cogent and reliable evidence.

6. We have heard the learned counsel for the parties and perused the record. The Collector, Mangla Dam Raising Project on the requisition of Project Director, Mangla Dam Raising Project, issued the notifications under section 4 of the Act, 1894 on 26th December, 2005 and 6th April, 2006 for acquiring the land of the appellants and award was issued on 14th May, 2007, in respect of the said land. After issuance of the notifications under section 4 of the Act, 1894, the Collector Land Acquisition, in the light of Rule 10 of the Land Acquisition Rules, 1994, wrote to the Sub-Registrar, Dadyal for sending the average price of the sale-deeds, registered during one year prior to the issuance of notifications under section 4 of the Act, 1894. The Sub-Registrar, Dadyal sent a letter on 12th January, 2007 stating therein, that from 26th December 2004 to 25th December, 2005, no sale-deed has been registered in village Peal Bakhshi Molraj. He sent the average price of the sale-deeds relating to the adjacent village Chattro, registered during the period of one year prior to the issuance of notification under section 4 of the Act, 1894. We deem it appropriate to reproduce the same which reads as under:-- The acquired land of the appellants is Banger Qadeem and Ghair Mumkin. The Collector observed that most of the population of this village is settled abroad for earning livelihood due to which there is no tendency of selling the land. The people living in the village are financially sound and due to this reason they have strong purchasing powers and are interested in purchasing the land and ready to pay the maximum price. The owners of the land due to the prevailing custom are not ready to sell the land, due to which the prices of the land in the market are higher and are raising day by day. Despite observing the same, the Collector assessed the compensation for the kind of land Banger Qadeem as Rs.50,000/- per kanal and for Ghair Mumkin as Rs.75,000/, per kanal. The Reference Judge enhanced the same to Rs.75,000/- and Rs.1,00,000/- per kanal, respectively.

7. This Court in the case titled Muhammad Mehrban v. WAPDA through Chief Engineer/Project Director Mangla Dam Raising Project, and 3 others [2013 SCR 635] has observed that the best evidence in determining the compensation can be the sale-deeds executed in the village from where the land was acquired but if no sale-deed in that village during the period of one year prior to issuance of notification under section 4 of the Land Acquisition Act, 1894 is available then the compensation has to be assessed on the basis of average market value of the land situated in the adjacent villages. The Collector himself after determining the market value of the land falling in the adjacent village Chattro as Rs.8,33,333/- per kanal for kind of Banger Qadeem observed that the prices of the land in the village are much higher and people are ready to pay maximum price which anyone demands, despite that he assessed the compensation which appears erroneous.

8. The appellants produced copy of sale-deed registered on 2nd December, 2006. Ex/"PB" relating to village. Peal Bakhshi Molraj, where the acquired land is situated. Through the said sale-deed one kanal land has been sold against the price of Rs.10,40,000/-. There is no rebuttal of this document. The sale-deeds registered after issuance of notification under section 4 and prior to issuance of award are valid pieces of evidence and have to be considered for determination of the market value. This Court in a number of cases has observed that market value of the land has to be determined while keeping in view not only the sale-deeds registered immediately before the issuance of notification under section 4, but also the sale-deeds registered after issuance of notification under section 4 of the Land Acquisition, Act, 1894. It was observed in the case reported as Akhtar Hussain and 2 others v. Azad Government of the State of Jammu and Kashmir through its Chief Secretary Muzaffarabad and 2 others [2014 MLD 179], as under:- "..... The best method of determination of the market price of the land under the acquisition process is to rely on the instances of sale of it near about the date of notification under section 4(i) of the Land Acquisition Act. The next best method is to take into the consideration the instances of sale of the adjacent land made shortly before and after the notification ." Similarly in a recent judgment of this Court titled WAPDA v. Muhammad Hussain and others (Civil Appeal No.217/2014, decided on 18.03.2015), it was observed as under:- " ....We have observed in a number of cases that market value of the land has to be determined while keeping in view not only the sale-deed registered immediately before the issuance of notification under section 4, but also the sale-deed registered after issuance of notification under section 4 of the Land Acquisition Act, 1894."

9. While determining the market value of the land being acquired, consideration of the sale-deeds registered during the period of one year prior to the issuance of notification under section 4 of the Land Acquisition Act, 1894, is not a sole criteria. The Court shall also consider the sale-deeds executed immediately after issuance of notification under section 4 and before the issuance of award. The market value of the land should not be valued merely by reference to the use for which it was being acquired at the relevant time but also the use to which it can reasonably be put in future. This Court in a number of cases has observed that apart from sale-deeds of the land registered one year prior to issuance of notification under section 4, the other factors shall also be considered. In the case reported as Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project Zone-I and 2 others [2013 SCR 1224], it was observed in para 11 of the judgment as under:-- "

11. As we have observed in the preceding paragraphs on the strength of the law laid down by the apex Court of Pakistan as well as by this Court, that sale-deeds executed 12 months' prior to the issuance of the notification under section 4 of the Land Acquisition Act is not a sole criteria to determine the market value. That is only one of the factors which can be taken into consideration while determining the market value." The Collector is also required to consider the use of the land for which it can be utilized in future. It was observed in the case titled Fazal-ur-Rehman and others v. General Manager S.I.D.B. and another [PLD 1986 SC 158] as under:- "There are other factors which have to be taken into consideration e.g. the land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, but also by reference to the uses to which it is reasonably capable of being put in the future; and market-value is the potential value of the property at the time of acquisition which would be paid by the willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time." While relying upon the above referred dictum of the Supreme Court of Pakistan and emphasizing the principle, this Court observed in a case reported as Faiz Akbar Khan and others v. Azad Government and others [1996 SCR 132] as under:-- " .. 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...:" In another case reported as Azad Government and 2 others v. Mst. Razia Farooqi and others [1996 SCR 136], it was observed as under:- "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......" Similarly in case reported as Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project and 2 others [2013 SCR 1224] it was observed as under:- "

6. Before proceeding further, it may be observed that the basic principle laid down by the Apex Court of Pakistan and the Apex Court of the State of Azad Jammu and Kashmir is that the land is not to be valued merely by reference to the use to which it is being put at the relevant time, but also by a reference to the use to which it is reasonably capable of being put in future; and the market value is the potential value of the property at the time of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time...."

10. It is interesting to note that in the Reference Court the witnesses of the appellants i.e. Ch. Muhammad Akram, Matloob Hussain and Muhammad Yousaf, attorney of one of the land-owners, stated that the acquired land is adjacent to Siakh Hamlet. Siakh Hamlet has been constructed in village Peal Bakhshi Molraj. The land has a potential to be used for residential and commercial purpose. The Reference Judge as well as the High Court has not considered this evidence. It is a clear case of misreading and non-reading of evidence.

11. The market value of the land is such price on which the owner of the land is ready to sell and willing buyer is ready to purchase. The Collector Land Acquisition himself made observation that people in the village are of sound financial position. They do not sell the land due to the custom and prices of the land in the village are much higher and owners in the village are ready to purchase the land at any price. After making such observation, it was enjoined upon the Collector to determine the market value in the light of these circumstances and the Reference Judge as well as the High Court should have considered the oral evidence and Sale-deed, according to which the acquired land is adjacent to Siakh Hamlet and can be utilized for the residential and commercial purpose.

12. Keeping in view the observation made by the Collector, Mangla Dam Raising Project and the Reference Judge, the average price of the land in adjacent village "Chattro" coupled with the sale-deed Ex.PB", registered on 2nd December, 2006 and oral evidence produced by the appellants, we have reached the conclusion that the appellants are entitled to the compensation at the rate of Rs.10,00,000/- per kanal irrespective of kinds of the land along with 15% compulsory acquisition charges. The appeals are accepted in the terms indicated above with no order as to costs. ZC/54/SC(AJ&K) Appeal allowed.