2004 PLP 608 (YLR)

SYED ZAHID HUSSAIN, J.

The suit-land was acquired for the construction of Lahore Bypass Project. Compensation whereof was assessed by the Land Acquisition Collector at Rs.5,000 per Marla, vide award dated 12-8-1997. Dissatisfied with the same the landowners made reference under section 18 of the Land Acquisition Act, 1894 for enhancement of compensation which came to be decided by the learned Senior Civil Judge, Lahore on 8-5-2001 enhancing the compensation to Rs.15,000 per Marla. Both sides i.e. the acquiring agency and the landowners have agitated the matter by filing appeals before this Court. Regular First Appeal No.591 of 2001 and Regular First Appeal No.592 of 2001 are by the acquiring agency whereas Regular First Appeals Nos.738 of 2001 and 739 of 2001 are by the landowners. The acquiring agency has assailed the quantum of compensation fixed by the learned Acquisition Judge, whereas the landowners seek enhancement in the rate of compensation. In view of the identity of the subject-matter and the issue involved as to what should be the fair compensation of the land acquired these appeals shall stand disposed of through this common judgment.

2. Since the essential and crucial issue is about the justness of the quantum of compensation fixed by the Land Acquisition Collector in the award and the learned Acquisition Judge enhancing the same vide his above mentioned judgment, the factors relevant for determination of compensation and the principles laid down by the Courts need to be kept in view in deciding these appeals.

3. Section 23 of the Land Acquisition Act, 1894 in regard to the factors to be kept in view, while assessing and determining compensation qua the land acquired, has received extensive judicial consideration from time to time. In Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others 1990 SCMR 899 a larger Bench of the Honourable Supreme Court of Pakistan took into consideration the situation of land in close vicinity to a metalled road (Lahore-Sargodha Road) where there was a factory, a petrol pump, a grid station, a tentage factory, Dawood factory, shops and it was observed "even though it (land) may, not be built upon for the time being and used for agricultural purposes, yet it is potentially a building site and the learned Judges of the High Court were perfectly right in so holding". It was further held that "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 with reference to the uses to which it is reasonably capable of being put in the future". In Market Committee, Kanganpur through Administrator v. Rayyat Ali and others 1991 SCMR 572 it was observed that average of sales in one year "is seldom decisive but always relevant". Factors (plus and minus) were listed referring to a judgment of the Supreme Court of India i.e. Chimanlal Harqovinnddas v. Special Land Acquisition Officer, Poona and another AIR 1988 SC 1652 such as:-- Plus factors: (1) Smallness of size. (2) Proximity to a road. (3) Frontage on a road. (4) Nearness to developed area. (5) Regular shape. (6) Level vis-a-vis land under acquisition. (7) Special value for an owner of an adjoining property to whom it may have some very special advantage. Minus factors: (1) Largeness of area. (2) Situation in the interior at a distance from the road. (3) Narrow strip of land with very small frontage compared to depth. (4) Lower level requiring the depressed portion to be filled up. (5) Remoteness from developed locality. (6) Some special disadvantageous factor which would deter a purchaser. " In Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164 it was observed that while determining compensation future prospects of land, such as the rise to which the land was capable were also relevant. In Maqbooi Ahmed Fatehally and others v. The Collector, District Lasbella and others 1992 SCMR 2342 it was reiterated that only the past sales should not be taken into account but the value of the land and its overall due potentiality may also be a determining factor. In Land Acquisition Collector, Rawalpindi and others v. Dina and others 1999 SCMR 1615 it was observed that the fact that the land was situated within the limits of Rawalpindi Cantonment and was accessible to urban amenities with a potential for being used as residential purposes was to be kept in view. It was further observed that the owner who is being deprived of the land as a result of compulsory acquisition is entitled to fair compensation. In Mura& Khan through his widow and 13 others v. Land Acquisition Collector and another 1999 SCMR 1647 it was observed that merely one year average price of the land is not decisive in itself for the determination of compensation but other considerations have also to be kept in view. On appreciating number of precedents, considerations relevant for determining the compensation were highlighted by their lordships, some of which for convenience of reference are stated below: -- (i) The best method to work out the market value is the practical method of a prudent man laid down in section 3 of the Evidence Act to examine and analyse all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land". The Land Acquisition Collector Rawalpindi v. Lieut. General Wajid Ali Khan Burki PLD 1960 (W.P.) Lah. 469. (ii) Subsection (1) of section 23 of the Act provides that in determining the amount of compensation the Court shall take into consideration the market value, loss by reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisi tion (Province of West Pakistan and another v. M. Salim Ullah and others PLD 1966 SC 547). (iii) The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of it near about the date of notification under section 4(i) of the Act. The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighbouring locality, the potential value of the land need not be separately awarded because such sales cover the potential value. (Jogendra Nath Chatterjee and others v. State of West Bengal AIR 1971 Calcutta 458. (iv) Consideration should be had to all the potential uses to which the land can be put, as well as the advantages, present or future, which the land possesses in the hands of the owners. (Mst. Khatu and others v. Barrage Mukhtiarkar, Thatta PLD 1970 Kar. 203. (v) In 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. (Din Muhammad v. General Manager, Communication and others PLv 1978 Lah. 1135. (vi) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into 4 transaction of sale can reasonably demand from a purchaser this means that we have to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist. (Province of Punjab v. Sher Muhammad and another PLD 1983 Lah. 578). (vii) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the past sales" should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as Court-witness) local property dealers or other persons 'who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone, and do not insist on the production of the documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in questions because of the prevalent tendency that in order to money in the purchases of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price factually paid. The previous sales' of the land, cannot therefore, be always, taken to be an accurate measure for the determining the price of land indeed to be acquired. (Fazalur Rehman and others v. General Manager, S.I.D.E. and another PLD 1986 SC 158. (Underlining provided for emphasis). In Collector, Land Acquisition, Mardan and others v. Nawabzada M. Ayub Khan and others 2000 SCMR 1322 it was held that potential value and future prospects of the land under acquisition in addition to one year average was to be kept in view. Quite recently the Supreme Court has in Fazal Haq College through Vice-Chairman v. Said Rasan and others PLD 2003 SC 480 reiterated that "The market value has been described as what a willing purchaser would pay to the willing seller. For assessing the market value, it is also essential to look into the location of the land in question, its potentiality and the amount of sale of similar kind of land in the vicinity at the relevant time". The citizens of this country have been guaranteed certain rights, some of which are recognized as "fundamental". Right to acquire, hold and dispose of property is one of the fundamental rights enshrined by Article 23 of the Constitution of Islamic Republic of Pakistan, 1973. Constitution provides a guarantee for the protection of this right. Clause (1) of Article 24 of the Constitution in unequivocal terms lays down that "No person shall be compulsorily deprived of his property save in accordance with law". Acquisition process employed to deprive some one of his property is, however, an exception, visualized on the Constitution. This, however, has to be in consonance with the conditions, parameters and manner laid down in clauses (2) and (3) of Article

24. The Land Acquisition Act, 1894 enables the State to acquire property of someone for public purpose. No one can ordinarily object to such acquisition, despite his unwillingness to lose his property, and he can only ask for compensation. If his property is being taken the public purpose and interest, he is to be given adequate, fair, just and due compensation. The property might in a particular case be the only source of his income or the acquisition may render him shelterless. The Court being guardian of the fundamental rights of the citizens thus, has to keep all this in mind while dealing with the cases of this nature and ensure award of due and fair compensation to the erstwhile landowner. The trend of judicial authority indicates that considerations and factors for determining the compensation of the land vary from time to time, location to location keeping in view the use present and future, its vicinity and ambience. There cannot be any fixity of criteria. It is thus that assessment of fair compensation is to be made objectively. Needless to state that burden of proving the entitlement to higher rate of compensation is on the landowner. Reference in this context may be made to Government of Sindh and 2 others v. Muhammad Usman and 2 others 1984 CLC 3406.

4. It may be observed that before the learned Acquisition Judge the acquiring agency failed to avail the opportunity of producing evidence. Thus, the Court proceeded to consider whatever evidence was produced by the landowners and assessed the rate of compensation at Rs.15,000 per Maria. Ch. Abdul Wahid one of the landowners appeared as witness and claimed that the value of the land which had constructions, other dwelling facilities and trees was not less than the value of Rs.25,000 per Marla. He had given the purview and ambience of the land which according to him was adjacent to Sabza-zar Scheme and near to the "Interchange". It was, however, admitted by him that the Land was situated across the Bund towards Ravi bed. A suggestion, however, that the land was situated at a distance of 2 miles away from the residential area,- was repelled by him. According to him if the land had not been acquired the site could have been used for a petrol pump. The learned Acquisition Judge, however, found that the average price relied and claimed by the landowners could not be made basis for compensation, which related to the period, 1996-97. In view of the fact that no evidence had been produced by the acquiring agency and the evidence produced by the landowners was also inadequate, scanty and deficient in many respects the learned Acquisition Judge proceeded to fix the rate of compensation on his assessment of the matter. Undoubtedly there was no solid, concrete and cogent evidence except the oral testimony as to the probable value of the land. The material on the record, however, leaves an unimpeachable impression of the land and its ambience that its surrounding was growing fast and was acquiring urban colour. We, thus, find that neither the Collector Land Acquisition nor the learned Acquisition Judge assessed the rate of compensation justly and fairly. In such situation and-state of evidence we have thought it just and fair to rely upon the Valuation Table notified by the District Collector, Lahore (We have made reference to the same in the matter of assessment of rate of compensation in the other two villages namely Shera Kot and Kot Kamboh) under section 27-A of the Stamp Act, 1899, wherein at Serial No.32 the value of the land situated in Jhugian Nagra is Rs.20,000 per Marla. That is an official assessment of the value of land situated in different localities in Lahore, which can furnish adequate basis for fair value. The landowners should be entitled to compensation at the rate the District Collector had fixed for residential sites in the Valuation Table notified by him i.e. S.No. Name of Locality Rate per Marla up to 10 Marlas Front Off

32. Jhugian Nagra . 25,000 20,000 Rate for every Marla exceeding 10.Marlas Front Off 20,000 15,000 This we consider as fair and reasonable compensation, which would meet the ends of justice.

5. There is a grievance of the landowners that they were entitled to compound interest at the rate of 8 % from the date of possession. Although the order of the Acquisition Judge to this extent is somewhat uncertain, reference to the order passed by the Honourable Supreme Court of Pakistan dated 19-7-2002 in C.P.L.A. No.963-L of 2002 would make this aspect abundantly clear. The relevant part whereof reads as under:-- "The controversy revolves around the applicability of section 28 of the Land Acquisition Act. Dispute is with regard to the precise amount of interest to be deposited by the respondents. Legal position is very clear in view of the provisions of section 28 of the Land Acquisition Act because it clearly provides that if interest is allowed, the same is to be reckoned from the date of possession." The observation is consistent with the legal position stated in Land Acquisition Collector (PWD) B&R, Central Region, Lahore and others v. Messrs Rana Motors Ltd., Lahore and others 1988 SCMR 1880, Punjab Province v. Umar Daraz and others 1988 MLD 1900 and Federation of Pakistan and others v. Shafique Ahmad Khan and others NLR 1994 Rev.

23. The judgment of the learned Acquisition Judge thus need to be clarified/modified to this extent also. Thus, whereas we dismiss Regular First Appeals Nos.591 of 2001 and 592 of 2001, we accept Regular First Appeals Nos.738 of 2001 and 739 of 2001 partly by enhancing rate of compensation to Rs.20,000 per Marla. The judgment and decree is, therefore, modified to the extent that compensation payable to the landowners will be at the rate of Rs.20,000 per Marla plus 15 % compulsory acquisition charges and 8 % compound interest from the date of possession till the date of final payment of the decretal amount. Decree to follow accordingly. No order as to costs. M.H./L-74/L Order accordingly.