1987 PLP 1844 (CLC)

of Mansehra Road, Abbottabad. U/S 30. (9) Doctor Fateh Ullah .son of Subhan Ullah College Road, Abbottabad. U/S

18. Award was announced on the basis of one year average. The cost of Houses and Fruit/Fruitless trees according to the assessment of the C&W Authorities, Agriculture Department and Forest Department, respectively. All the reference applications are in time which are enclosed herewith alongwith copies of the relevant record. The affectees of serial Nos. 1 to 6 have received their compensation amount under protest and the remaining mentioned at serial Nos. 7 to 9 have not received the amount. (Sd.) Land Acquisition Collector, Abbottabad.

3. In their written statement filed by the Military Estates Officer (respondent No. 2) the objection petition was resisted on several legal and factual pleas resulting in framing of the following issues:‑‑ (1) Whether objectors have got any cause of action? (2) Whether objectors are estopped to sue? (3) Whether objection petition is within time? (4) Whether compensation in award in question has correctly been assessed? (5) Whether objectors are entitled to recover compensation for the gardens at the rate of Rs.2,00,000 per Kanal and for bela nature of land @ Rs.1,80,000 per Kanal for their property acquired by the respondents? (6) Relief.

4. In R.F.A. No. 3 of 1985, Ali Gohar Shah, objector/land‑owner, has challenged the judgment and decree of the Land Acquisition Judge dated 18‑1‑1984, whereby his objection petition against the same award was rejected. He alongwith Mst. Ghulam Janat claimed in the objection petition enhancement in the compensation of their acquired land at the rate of Rs.1,20,000 per Kanal with 15% compulsory acquisition charges and interest at the rate of 15% regarding his land bearing Khasra No. 1483/723 measuring 12 Kanals 7 Marlas and Khasra Nos. 722 and 724 measuring one Kanal 19 Marlas. In R.F.A. No. 11 of 1986 by the Central Government and in R.F.A. No. 13 of 1986, Sadiq Saeed Khan and others have challenged the same judgment and decree of the learned Acquisition Judge dated 17‑11‑1985 whereby on the acceptance of objection petition of Sadiq Saeed Khan and others they were held entitled to Rs. one lac per Kanal and also to the enhanced amount of compensation for trees per list annexed with the objection petition in addition to the other charges for their acquired land measuring 14 Kanals 9 Marlas bearing Khasra Nos. 733, 716, 717, 715, 714 and

710. In R.F.A. No. 51 of 1986, the Government of Pakistan and the Land Acquisition Collector have challenged the judgment and decree of the Land Acquisition Judge dated 11‑12‑1985 whereby respondent No. 1 Doctor Fateh Ullah, was awarded compensation of his acquired land. 2515/4752 shares, out of Khasra No. 711 measuring 7 Kanals one Marla at the rate of Rs.one lac per Kanal alongwith compulsory acquisition charges and interest. Central Government and another have also challenged in R.F.A. No. 58/86, the judgment and decree dated 22‑11‑1985 of the Land Acquisition Judge whereby on the acceptance of the respondent's objection petition enhancement was made in the compensation of their acquired land bearing Khasra No. 731 measuring 8 Marlas and Khasra No. 718 measuring 9 Kanals 15 Marlas. Similarly the Central Government and others have challenged the judgment and decree of the Land Acquisition Judge dated 30‑1‑1986, through R.F.A. No. 68 of 1986, whereby on the acceptance of respondent's objection petition enhancement was made in compensation of their acquired land bearing Khasra No. 721 measuring 12 Kanals 13 Marlas and also enhanced the compensation of the trees given in the schedule attached to the objection petition.

5. The learned Acquisition Judge excepting the objection petition of Ali Gohar Shah (R.F.A. No. 3 of 1985) accepted all the objection petitions fixed the sum of Rs. one lac per Kanal compensation for the entire acquired land with 15$ compulsory acquisition charges and the interest mentioned therein which has given rise to the aforementioned Regular First Appeals. The subject matter in these appeals is the land situated in village Jhangi, Tehsil Abbottabad acquired through Award No. 2 announced on 10‑3‑1982. As all the objection petitions and appeals arising therefrom pertain to the same Award and to a great extent both the parties have led the same evidence, we propose to dispose of all these appeals by this single judgment.

6. We have heard the learned counsel for the parties and gone through the record. The contention of the learned counsel for the appellant (the acquiring department) is that the learned Acquisition Collector was obliged under section 23 of the Act to assess the market value of the acquired land at the average of sale transaction completed a year before issuance of notification under section 4 of the Act, but influenced by the fact that the prices were on the increased during the relevant period, he relied on the average of sale transaction completed within a year after the issuance of the said notification and on its basis fixed the value as referred to above. That even if the valuation fixed by the Acquisition Collector was excessive on the face of the record for the reason stated above, the learned Acquisition Judge far exceeded his power by taking into consideration the sale consideration which apart from being collusive were in respect of small; pieces of land having peculiar qualifications and purchased for construction purposes while making the assessment. It was further contended that neither it was the case of the respondents in their objection petitions nor it has been proved on the file that the land in question had residential potential or that it had any special characteristics or peculiarities to be assessed at enhanced rate. The learned Acquisition Judge placed reliance on Mutations No. 3924 and 3925 attested on 14‑1‑1979 whereby in each case an area of 10 Marlas was sold at the rate of Rs.one lac. These mutations were stated to be speculative and collusive as these sales were made by one brother in favour of the other and were entered after having gained knowledge of the acquisition proceedings of these land. It was further contended that No legal evidence was produced by the objectors in support of their plea for enhanced compensation. Enhancement made on the basis of the aforementioned mutations was, therefore, challenged to be based on no evidence.

7. In order to appreciate the contentions of the learned counsel for the parties, we would like to refer to the objection petitions to find out the grounds on which the valuation fixed by the learned Acquisition Collector was challenged and the basis of their claim for enhanced compensation. The objectors have simply asserted that the Collector Acquisition had relied upon the reports of lower staff in making assessment of compensation of the acquired land and thereby failed to make fair assessment by applying his own mind. Prayer was, therefore, made for enhanced compensation of their acquired land.

8. Reverting to the evidence led by the parties in R.F.A. No. 28/85, it may be pointed out that apart from various averages referred to in the award the objectors examined Muhammad Hayat, Clerk, Land Acquisition Collector and through him brought on file attested copy of Award No. 2 (Ex. P.W.1/1), copy of notification under section 4 of the Act (Ex. P.W.1/3), copy of notification under section 6 of the Act. Some other documents were placed on the file which are not relevant for the purpose of these appeals. Benyamin Patwari Halqa was examined as P.W. 2 who placed on file one yearly average of sale transaction of the land situated adjacent to the main road during the period from 14‑10‑1978 to 14‑10‑1979 which is Ex. P.W. 2/1 according to which the value worked out of the land comes to Rs.67,200.48 per Kanal for Bagh Rs.61,644 for Baila and Rs.1,401 for "Ghair Mazrua". He also placed on file average of the sales of lands adjacent to Mansehra road for construction purposes during the period from 15‑10‑1979 to 14‑10‑1980 (Ex. P.W.2/2) according to which the value of Bagh comes to Rs.71,184 per Kanal, Bails Rs.65,252 per Kanal and "Ghair Mazrua" Rs.1,483 per Kanal and for the period15‑1‑1980 to 14‑1‑1981 (Ex. P.W. 2/3) according to which the valuation of such land comes to Rs.89,030.40, Rs.81,611.20, Rs.1,854.80 respectively of the three types of land. The one yearly average of sale transaction which took place between 14‑10‑1978 to 10‑10‑1979 in the village of the land sold for construction purposes is Ex. P.W.2/4 according to which Rs.60,460.80, Rs.55,422.40, and Rs.1,259 respectively per Kanal is the market value of the three types of land. He also placed on file copy of 'Shajara‑i‑Kishtwar' which is Ex. P.W. 2/5 showing the distance of the suit Khasra numbers from the main Mansehra‑Abbottabad road. The land adjacent to the road was stated to have potential of building site while the rest of it was purely agricultural land. Rifaqat Shah one of the objectors appeared as P.W. 3 who stated that on their objection land measuring 17 Kanals 10 Marlas was found Bagh out of the acquired land while the rest of it was Bails. He further stated that a link road passes through their acquired land and that it is at a distance of 300 feet from P.M.A. road. That Bungalows are constructed in the vicinity of the suit land. He also placed on file copies of the aforementioned two mutations as Ex. P.W.3/1 and Ex. P.W.3/2. Sikandar Khan, resident of Banda Jalal Khan appeared as P.W. 4 and alleged that he was the tenant of the acquired land and that it was Bagh at that time. When confronted with the revenue record that he did not cultivate the land, he stated that he was not so recorded in the revenue record and that he did not cultivate it for the last three years. He denied the suggestion that there was no orchard in the land and that he was making a false statement.

9. This was the entire evidence which the objectors led in support of the objection petition and in rebuttal of the awarded amount. We would like to refer to the two mutations on which much stress has been laid. Vide mutation No. 3924 Nizakat Shah, objector, is shown to have sold an area measuring 10 Marlas in favour of his brother Farid Shah and vide mutation No. 3825 he further sold 10 Marlas of land in favour of Musharraf Shah, his other brother and co‑objector, for a sum of Rs. one lac each. Both these mutations were entered on 4‑1‑1979 and attested on 14‑1‑1979. It may be pointed out that these mutations are mentioned in the one yearly average of the period from 14‑10‑1978 to 14‑10,‑1979 which is Ex. P.W.2/1 on the file and are at its serial No. 7 and

8. We have also noticed that at serial Nos.. 5 and 6 of the said average are shown sale mutations No. 3886 and 3887 whereby an area measuring 15 Marlas in each transaction of sale is shown to have been made for Rs.3,

000. These mutations were attested on 14‑1‑1979, the day when Mutations Nos. 3924 and 3925 were attested. We summoned the original mutations for perusal and found that sale consideration of land measuring 1 Kanal 6 Marlas sold vide mutation No. 3846 is one year's average is entered for Rs.40,000 but in the order of the Revenue Officer and in the relevant column of the original mutation the sale consideration entered therein is Rs.8,

000. Taking into consideration the evidence of the objectors, in the context and the various averages available on the file, while making the assessment, the learned Acquisition Judge observed as under:‑‑-- "According to Mutation Nos. 3924 and 3925, the prices of a suit land comes to Rs. two lacs per Kanal. However, keeping in view the said mutations alongwith the different averages. I fix the price of the entire land at Rs. one lac per Kanal which is quite fair and proper".

10. Unfortunately, the learned Acquisition Judge only took into consideration those two mutations which are included in the one year's average (Ex. P.W.2/1) for the period 14‑10‑1978 to 14‑10‑1979 but failed to find out whether these mutations represented genuine transactions. The learned Judge was required to have looked into the other genuine transaction and the sale consideration entered therein. He had further to determine whether these transactions were speculative in nature or not specially when these were between the brothers. There were other mutations attested on the same day but these were ignored for NO reason though these pertained to the land in the vicinity. From the copy of Jamabandi of the acquired land, which is Ex. P.W.2/6 on the file, and the copy of 'Shajra‑i‑Kishtwar' placed on file (Ex. P.W.2/5) the suit Khasra numbers are neither adjacent to the main road nor there is shown any link road to the main road. The objectors failed to prove on the file the existence of a thoroughfare in Khasra No. 750 which adjoined Khasra No. 728 in dispute. It may be pointed out that even the learned Acquisition Judge while giving his decision in the objection petition of Ali Gohar Shah against the same award subject‑matter in (R.F.A. No. 3/85), dealing with the evidence led therein, observed as under:‑-- "A perusal of award in question photo copy EX.P.W.1/1 would show that at the first instance the market value of the land in question was assessed on the basis of one yearly average from 14‑10‑1978 to 14‑10‑1979, as Rs.27,350.40 per Kanal but subsequently, to assess the fair price of the land, the Collector inspected the spot and enhanced the market value of the land in question to Rs.36,412.80 per Kanal, on the basis of one yearly average from 14‑10‑1979 to 14‑10‑1980. The land in question is admittedly being used as hoter type of land till now. The petitioners have miserably failed to bring cogent evidence to show that the land adjacent to the land in question is reserved for building site. Thus, the Court is constrained to hold that the land acquired has rightly been treated as an agricultural land by the Collector. The one yearly average relied upon by the petitioners cannot be taken into consideration because it is not proved that the said average are regarding the lands near the suit land. Furthermore, no mutation regarding the transaction of hoter type of land is included in the said average except one in Ex.P.W.2/4. P.W.2 has stated that vide Mutation No. 4315 attested on 22‑1‑1981 an area of 1 Kanal 2 Marlas has been sold for Rs.22,000 only. The learned counsel for the petitioners argued that in view of P L D 1978 Punjab Revenue page 41 citation (g), this mutation cannot be taken into consideration. But the facts of the case reported in the said authority are different from the case in hand as such." In consequence of the above observation the valuation fixed of acquired land by the Land Acquisition Collector in Award No. 2 was upheld and the objection petition was dismissed.

12. We have earlier observed that the learned Acquisition Collector assessed the market value of the acquired land on the average of one year sale transaction worked out after the publication of notification under section 4 (from 14‑10‑1979 to 14‑10‑1980). However, this was against the provision of section 23 of the Land Acquisition Act under which the market value of the land on the date of publication of notification under section 4 of the Act had to be taken into consideration for determining the compensation. However, conscious of the fact that in this appeal the assessment made by the Acquisition Collector cannot be interfered with and that the valuation fixed is beneficial to the land‑owners and having attained finality, we would not consider this aspect of the case any more.

13. The argument of the learned counsel for the objectors that the Acquisition Collector failed to take into consideration the delay in making the award, .as notification in this case under section 4 of the Act was issued on 14‑10‑1979 while the award was announced on 10‑3‑1982, in assessing compensation, has got some force. The argument is further supported by judgment of the Supreme Court of Pakistan in N.‑W.F.P. through Collector Land Acquisition and others v. Haji Ali Asghar Khan and others reported in 1985 S C M R

767. In that case land measuring 515 Kanals 5 Marlas situated in village Banda Qazi on Abbottabad Mansehra Road was acquired for construction of Ayub Medical College on the basis of an award given by the Land Acquisition Collector Abbottabad on 28‑2‑1981. Notification under section 4 of the Act had been issued some two years earlier of the award, that is, on 21‑6‑1978. In considering the compensation assessed by the Land Acquisition Judge their Lordships observed:‑- "We discovered that the areas now included in village Banda Qazi and the areas which constitute village Mirpur at present all formerly formed part of a single village viz. Mirpur village and that it was only recently that some of the areas out of the said village were carved out and designated as a new village called Qazi Banda village. In these circumstances, we feel that the sale transactions in Mirpur estate besides, of course, those in village Banda Qazi and not the sale transaction in any other village or estate even though situate in the neighbourhood, would be of the relevance in determining the market value of the land acquired in this case." Thereafter, their Lordships further observed:‑

"Taking into account the fact that the notification of the acquisition was issued in 1978 and the award made some two years later and there was an upward trend in the prices of the land during the period, the value of the land for purposes of payment of compensation should, in our opinion, be fixed at Rs.25,000 per Kanal. We would, therefore, award compensation at the rate of Rs.25,000 per Kanal for the land acquired in this case." Now in the present case, the Land Acquisition Collector has allowed compensation for Bagh, Hoter and Chahi types of land at the rate of Rs.36,412.80 per Kanal and for Bela Type of land at the rate of Rs.33,378.40. However, compensation for 'chair Mumkin' type of land is fixed at the rate of Rs.758.60. These valuations were fixed on the basis of one year average and that too subsequent to the issuance of notification under section

4. We feel that the compensation granted by the Acquisition Collector to the land‑owners for Bagh, Hoter, Chahi and Bela is fair. As regards Ghair Mumkin kind of land, we have to follow the rate for such kind of land fixed by the Hon'ble Supreme Court in the cited case in which the Acquisition Judge fixed Rs.20,000 per Kanal but the Honourable Judges of the Supreme Court enhanced the same to Rs.25,000 per Kanal. By following this rate per Kanal we are fortified by the fact that the land in the present case and in the cited case are situate in the same locality of Abbottabad and there was not much time passed between the announcement of the award in the cited case and the notification published under section 4 of the Act in the present case. Even otherwise, there is no material before us to show that there was any upward trend whatever in the price .of the land acquired in the present case after the announcement of the award in the cited case. In the circumstances, we have, therefore, no difficulty in fixing Rs.25,000 per Kanal for Ghair Mumkin kind of land on the basis of the judgment of the Supreme Court in the cited case.

14. We would now deal with the assessment made by the Land Acquisition Judge for the fruit bearing trees and non‑fruit bearing trees of the objectors in their respective objection petitions found at the time of Acquisition of the land acquired. In R.F.A. No. 28 of '985 connected with R . F . A . No. 2 of 1986 , the objectors did not specifically mention the number of trees in their land at the time of requisition proceedings and no evidence was led on it, hence the sward was not interfered with in this respect in the impugned judgment end decree.

15. In R.F.A. No. 68 of 1985 in the objection petition, no claim was made for enhancement in the compensation for trees. However, after the reference was made application was moved on 23‑10‑1985 before the Acquisition Judge for amendment of their objection petition to include the prayer for enhanced compensation for the trees which was allowed. The petitioner through the amendment claimed compensation for 50 apple trees aged 8 years and 139 apple trees aged 7 years and 252 poplar trees. In the report of the Commissioner 89 apple trees aged 7/8 years on 14‑1‑1986 were shown in the land f the objectors measuring 6 Kanals 10 Marlas, Excepting this report of other legal evidence was produced to prove the existence of these trees in the land at the time of notification under section 4 of the Act. The learned Acquisition Judge, however, without applying his mind to the facts of the case and giving his decision in the light of the evidence led by the parties, held the objectors entitled to the compensation of 489 apple trees at the rate given in the award. It may be pointed out that neither any enhanced compensation was prayed initially in the objection petition and even when amended petition was filed, nor the objectors themselves claimed compensation for 489 trees. For the reason, the learned Acquisition Judge has committed illegality in awarding compensation for the trees. In Mohammad Sharif v. Afsar Textile Mills Ltd. and another 1985 S C M R 1181, the question of amendment in the objection petition came for determination of their Lordships and it was observed that:‑

"The provision of the Code of Civil Procedure apply to the proceedings before the civil Court on a reference by Collector by reason of section 53 of the Act except when there is inconsistency between any provision of the Code and the Act obviously, therefore, Order VI, Rule 17 will be applicable to the proceedings but sections 18, 20, 21 and 25 of the Act indicate to what extent it can be pressed into service for allowing an amendment." After re‑producing the relevant section of the Act, their Lordships observed:‑-- "Subsection (1) of section 18 enumerates the matters which can form the subject‑matter of reference by the Collector for the determination of the Court and one such matter is the 'amount of compensation'. Subsection (1) of section 25 lays down the 'minimum' and the 'maximum' within which the Court must limit its award, that is, when the objector has put in his claim for compensation under section 9 of the Act, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section 11 of the Act. Subsections (2) and (3) of section 25 will not be applicable to the case of the appellant as the situation envisaged in either of the two subsections is not present in the instant case. Section 20 requires service of notice on the applicant, all persons interested in the objection and the Collector if the objection in regard to the area of the land or to the amount of compensation. Section 21 of the Act again restricts the scope of the enquiry to the consideration of the interests of the persons affected by the objection. Again the word 'objection' in this section has the same connotation as in section 18 of the Act."

16. Their Lordships referring to the chain of authorities on the subject observed as follows:‑

"Reading sections 9, 11,18 and 21 together, what is imperative is that the claimant must give out the particulars of the claims as to the nature of the interest and the amount of compensation desired for it. In other words he should fully present his case before the Collector as this in terms is his pleadings to which he remains confined till the decision of the Collector in regard to the compensation payable. Necessarily, therefore, he is precluded from making out a fresh case either by way of supplementary claim to compensation or otherwise at the stage of Judicial determination. This is what is emphasised by Curgenven, J., in Secretary of State v. C.R.Subramania Ayyar AIR 1950 Mad. 576, and I see much substance in it as the pleadings are a foundation for the grounds on which an objection is taken to the award while seeking a judicial determination under section 18 of the Act. In effect, therefore, it alone becomes a matter referred under section 18 of the Act and the Court has no power to determine or consider anything beyond it."

17. No doubt, observation has been made in the judgment that no hard and fast rule can be laid down as each case has to be decided on its own facts and to what extent an amendment can be allowed is again a matter which is to be decided on facts and circumstances of that case. However, the broad principle laid down therein cannot be ignored. For the reason stated above, the learned Acquisition Judge has committed illegality in allowing amendment to the objectors for claiming excess number of fruit bearing trees and their enhanced compensation.

18. Even otherwise the valuation worked out by the Acquisition Judge treating the acquired land building site and thereafter allowing further advantage of its character as agricultural land (Bagh) is not supported by sound reasoning. This question came for consideration in Thareesamna and others v. The Deputy Collector Cochin and others reported in A I R 1924 Mad. 252 and in Land Acquisition Officer, Lower Sind Barrage Hyderabad v . Kamber Ali Beg reported in 1981 CLC 556.. In the . . latter cited case the proposition raised before the Court was how land having fruit bearing trees (Mangoes) would be valued within the meaning of sections 23 and 24 of the Land Acquisition Act. In dealing with the question the Hon'ble Judges observed that:‑-- "In case of land which is covered by trees, the market value should be determined for the land including trees as a whole, and not by valuing the trees separately from the land/‑‑‑‑‑‑‑‑‑for the land covered with trees cannot yield any usufruct independent of usufruct of the trees, and without trees such a land will have very little value. The proposition is supported in section 3 (a) of the Act which says that the ‑‑‑‑ word "Land" includes standing trees:" (‑‑AIR 1962 Pat. 406). This aspect of the case has not been considered by the Land Acquisition Collector and by the learned Acquisition Judge while making assessment of compensation for the land covered with fruit bearing trees. However, for the reasons stated above we would not advert to this aspect of the case as the Award of the Land Acquisition Collector has attained finality.

19. To sum up the above discussion, we would allow R.F.As. No. 3 and 28 of 1985 and R.F.As. No. 11, 51, 58 and 68 of 1986 and set aside the judgments and decrees of the learned Acquisition Judge. In consequence, the award of the Acquisition Collector is modified to the extent that we allow Rs.25,000 per kanal for Ghair Mumkin kind of land and in other respects his award is upheld. The respondents would further be entitled to 15% compulsory acquisition charges. In sequence to the above, R.F.As No.2 and 13 of 1986 stand dismissed. Due to partial success of the parties, they shall bear their own costs. M.Y.H./532/P Appeals partly accepted.