1992 PLP 1245 (SCMR)

(c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector.

7. If any of the persons mentioned in the above clauses is aggrieved by the judgment of the Court, he has been conferred with the right of appeal under section 54 of the Act, which lays down as follows: "

54. Subject to provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, ‑of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof."

8. It may be pertinent at this juncture to refer to section 50 of the Act, subsection (1) whereof lays down that where the provisions of the Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority or of any Company, the charges of and incidental to such acquisition shall be defrayed from or by such fund or company. It may also be observed that subsection (2) of the above section 50 provides that "in any proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation" Whereas, the proviso to the above subsection (2) lays down that "Provided that no such local authority or company shall be entitled to demand a reference under section 18".

9. It may be pointed out that because of the above proviso to subsection (2) of section 50 of the Act, it has been consistently held by this Court that the local authority or a company on whose behalf the land is acquired by the Collector, has no right to file an appeal against a judgment arising out of the reference under section 18 of the Act. In this regard reference may be made to the case of Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad and other P L D 1987 SC 485, wherein after referring to the relevant case‑law, the following proposition of law was propounded:‑‑ "Furthermore, neither the Central Government nor the Military Estate Officer can be deemed to be parties who have been adversely affected by‑the order of the Civil Court. If the Central Government or the Military Estate Officer could get the land in question more cheaply by private negotiations they can refuse to accept the land at the price determined by the Court. They cannot have it both ways. Having chosen to set in motion the special powers given to the Government to acquire land under the Land Acquisition Act for public purpose they are to be confined to those provisions and cannot claim further rights and higher privileges than those provided for under the provisions of the said Act. Since under the provisions of the Act only a special and limited appeal is provided for against the award of the Court, which in the facts and circumstances of this case would be availed of by the Provincial Government or the Collector, no other party, including the appellants herein could avail of a right of appeal. As neither the Provincial Government nor the Collector chose to file an appeal, the appeal filed by the Central Government and the Military Estate Officer was indeed an appeal filed by `strangers', having no locus standi to file it."

10. In the above case, it has been held that though the land was acquired ?or the Central Government, but neither the Central Government nor the Military Estate Officer was competent to file an appeal under section 54 of the Act but the special and limited right of appeal provided under the above provision could be availed of by the Provincial Government or the Collector. If we were to agree with Mr. Abdul Hakeem Khan, it would mean that a judgment of a Referring Judge would be final as far as the authority or the company on whose behalf the land has been acquired, but the owner would have a right of an appeal, which would be against all canons of justice. The Collector in fact files an appeal as an agent for the authority or the company for whose benefit land is acquired.

11. The above view has been recently reiterated by a larger Bench of this Court, comprising 7 Judges, in the case of Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi 1991 S C M R 2193, in which one of us, namely, Shafiur Rahman, J., while rendering the judgment besides referring to the relevant case‑law has succinctly, referred to the legislative history and the amendments brought about by the Provincial Legislatures in respect of appeal.

12. In this regard reference may also be made to the case of the Collector, Raigarh v. Chaturbhuj Panda and others A I R 1964 Madhya Pradesh 196, relied upon by Mr. Sardar Khan, learned Advocate‑General, N.‑W.F.P. wherein a Division Bench of the Madhya Pradesh High Court, while dealing with the question in issue, has held as follows:‑‑‑ "

4. On behalf of the appellants, Shri R.K. Verma has raised a preliminary objection that the appeals should have been filed in the name of the State Government and as they have been preferred by the Collector, Raigarh, they should be dismissed. It is true that the State Government is the real party aggrieved and the appeals should have been filed in the name of the State Government through the Collector as their agent. However, the defect does not appear to us to be fatal. The Collector has a right to act for the Government under the specific provisions of the Act. For instance, it is the duty of the Collector to make an award and after he has done so, it is he who takes possession of the land under section

16. The duty of the paying the compensation is laid on the Collector under section

31. Section 28 requires the Collector to pay interest on the amount awarded by the Court in excess of his award. In fact, all these amounts have to be paid by the State Government; but under the special provisions of the Act it is the Collector who has to perform that duty. Now, if the Collector wants to be relieved of a part of the statutory liability created by the award of the Court, he should, in our opinion, be entitled to prefer an appeal against the award. We do not think that it is necessary to file the appeal formally in the name of the State Government. Incidentally we may mention that the titles of several cases reported in the law reports from different High Courts as also of cases which were decided by the Privy Council and the Supreme Court, show the Collector alone as a party. Though the question regarding the tenability of the appeal in the name of the Collector has not been specifically discussed in any of these cases, it is apparent that this practice has been in existence for a long time."

13. We are, therefore, inclined to hold that the above objection as to the maintainability of the R. F As. before the High Court, is not sustainable.

14. We may now revert to the merits of the above appeals. We may take up the above first three appeals of 1990 which are directed against a common judgment, as observed hereinabove. In this regard we observe that the subject‑matter of the acquisition was the land situated in village Shadi Tehsil Haripur, which was acquired for procurement of clay for Mustahkam. Cement Factory. The Land Acquisition Officer/Collector awarded Rs.4,186. per Kanal. Upon reference under section 18 of the Act, the learned Acquisition Judge enhanced the above amount to Rs.5,457.40 per Kanal on the basis that an area of 236 Kanals 11 Marlas in the same vicinity was also acquired for the same purpose through the award in question from Messrs Malik Muhammad Iqbal and Malik Muhammad Ashraf but its price was fixed by the above owners and the acquiring company through private negotiations at the rate of Rs.5,447.40 per Kanal. However, the High Court on the basis of one year average value for the period from 20‑5‑1982 to 19‑5‑1983, further enhanced the amount to Rs.6,482.40 per Kanal on the ground that the award was given after about two years.

15. In support of the above Civil Appeals Nos.242 of 1990 and 538 of 1990, Mr. Muhammad Yousaf Saraf, learned Advocate Supreme Court appearing for the appellants, has vehemently urged that the High Court erred in enhancing the amount of compensation on the basis of one year average value for the above period of one year, namely, 20‑5‑1982 to 19‑5‑1983 though the Notification under section 4 of the Act was issued on 17‑10‑1980 and a corrigendum to it was issued on 20‑5‑1982 for deleting a portion of the land notified in the above notification. In this connection, it may be pertinent to refer to sections 23 and 24 of the Act, which read as under:‑‑ "23.‑‑(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration‑‑ first, the market‑value of the land at the date of 'the publication of the notification under section 4, subsection (1); secondly, the damage sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide 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. (2) In addition to the market value of the land as above provided, the Court shall in every case award a. sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition.

24. But the Court shall not take into consideration

first, the degree of urgency which has led to the acquisition; secondly, any disinclination of the person interested to part with the land acquired; ' thirdly, any damage sustained by him which, if caused by a private person, would not render such person liable to a suit; fourthly, any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration under section 6, by or in consequence of the use to which it will be put; fifthly, any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired; sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put; or' seventhly, any outlay or improvements on, or disposal of, the land acquired, commenced, made or effected without the sanction of the Collector after the date of the publication under section 4, subsection (1) " A perusal of the above first sub‑para. of subsection (1) of section 23 of the Act indicates that in determining the amount of compensation to be awarded for land acquired under the Act, the Court is required to take into consideration inter alia the market value of the land at the date of publication of the notification under subsection (1) of section 4 of the Act. It may also be observed that the abovequoted other sub‑paras of subsection (1) of section 23 of the Act under the captions, `secondly', `thirdly', 'fourthly', `fifthly' and 'sixthly' provide the other factors which are to be taken into consideration while determining the amount of compensation. None of the factors includes the rise in the price of the acquired land from the date of the notification till the date of giving of an award. On the contrary, sub‑paras under the captions `fifthly', 'sixthly' and `seventhly' of above quoted section 24 of the Act prohibit from taking into consideration any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put, and any outlay or improvements on, or disposal of, the land acquired, commenced, made or effected without the sanction of the Collector after the date of publication of the notification under section 4, subsection (1) of the Act.

16. However, Mr. Kaukab IqbaI has referred to the case of N.‑W.F.P. through Collector, Abbottabad, Land Acquisition and others v. Ali Asghar Khan 1985 S C M R 767 and the case of Malik Aman and others v. Land Acquisition Collector and others P L D 1988 SC

32. In the above first case this Court noted the factum that the award was given after the expiry of nearly two years and during that period the prices of the land had gone up and because of that, this Court enhanced the amount of compensation from Rs.20,000 to Rs.25,

000. However, it may be observed that in the above case the above provisions of section 24 of the Act were not taken into consideration. Whereas, in the above second case, this Court while declining a petition for leave to appeal on the ground that the petitioner failed to bring on record any evidence to show how much prices of the land in question had risen during the 7 years taken by the Collector in announcing the award, observed as follows:‑‑‑ "Although market value of the land is normally to be taken as existing on the date of publication of Notification under section 4(1) of the Act, yet it is common knowledge that for determining the market value the Courts often look at the prices on which similar lands were sold during the preceding 12 months, and similarly in other cases. factors bearing on the value of the same land in future e.g. the `potential value' of the property are also taken into consideration. It has been observed in Fazal‑ur‑Rehman and others v. General Manager, S.I.D.B. and' others P L D 1986 SC 158:‑‑ "There are other factors which have to be taken into consideration e.g. 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 a reference to the usage 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 requisition which would be paid by a willing buyer to a willing seller, when both arc actuated by business principles. prevalent in the locality at that time."

17. There cannot be any cavil with the proposition that the Court while assessing the amount of compensation may take into consideration the potentialities but anything, which is prohibited under section 24 of the Act, cannot be made basis for awarding the amount of compensation. In this regard reference may also be made to‑the case of Sardar Abdur Rauf Khan and others The Land Acquisition Collector/Deputy Commissioner, Abbottabad 1991 SCMR 2164 in which this Court after dilating upon the case‑law, has deduced the following proposition of law; "(i) That an entry in the Revenue Record as to the nature of the land may not be conclusive for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable of becoming Chahi land; (ii) That while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered; (iii) That the market value of the land is normally to be taken as existing on the date of publication of the notification under section 4(1) of the Act but for determining the same, the prices on which similar land situated in the vicinity was sold during the preceding 12 months and not 6/7 years may be considered including other factors like potential value etc."

18. In the above three appeals of 1990, Exh.R.W.l/R‑2 contained five years' price average of `maira' type of land which was the subject‑matter of the acquisition, which worked out to Rs.2,536 per Kanal. The High Court has relied upon one year average for the period from 20‑5‑1982 to 19‑5‑1983 which worked out to Rs.6,482.40 per Kanal. The above basis was not warranted as the notification was of 17‑10‑1980 and in terms of section 23(1) of the Act, the market rate prevalent on 17‑10‑1980 should have been taken into consideration or the average price of the land obtaining during the preceding 12 months, as has been pointed out in the above judgment of this Court in the case of Sardar Abdur Rauf Khan and others (Supra). It is true that the Court is to take into consideration the potentialities of the land which may even include the consideration of increase in the price after the issuance of notification under section 4(1) of the Act but the same cannot be made basis. In our view, the amount of compensation fixed by the Reference Judge, namely, Rs.5,457.40 per Kanal was reasonable as it was agreed by private negotiations by aforesaid owners M/s. Malik Muhammad lqbal and Malik Muhammad Ashraf.

19. We would, therefore, allow Civil Appeals Nos.242 of 1990 and 538 of 1990 and would dismiss Civil Appeal No.669 of 1990. However, there will be no order as to costs.

20. Adverting to Civil Appeal No.81 of 1991, it may be observed that in. the above case, notification under section 4 of the Act was issued on 10‑7‑1979 in respect of an area ‑of 127 Kanals. The above area was reduced through a corrigendum issued on 29‑1‑1980. It may be pointed out that in the award Rs.14,611.40 per Kanal were fixed as the amount of compensation but the Reference Judge, upon receipt of a reference under section 18 of the Act, enhanced the same to Rs.75,000 per Kanal. However, the High Court upon R.FA. reduced the above amount of compensation to Rs.20,000 per Kanal.

21. The Land Acquisition Collector had relied upon the mutation entries of one year mixed average prior to the date of publication of the notification i.e. for the period from 10‑7‑1978 to 10‑7‑1979 which worked out to Rs.12,260.80 per Kanal but he awarded Rs.14,611.40 per Kanal. The operative portion of the award reads as follows:‑‑ "Rs.12,266.80 per Kanal rate for this particular kind of land `Maira' has been worked out by the Revenue Field Staff on the basis of one year mixed average prior to the date of publication of Notification under .section 4 of the Land Acquisition Act, 1894. The period involved is 10‑7‑1978 to 10‑7‑1979 (the date of Notification under section 4). For determining the market value provisions of section 23 of the Land Acquisition Act, 1894 were kept in view and as such all the fair transactions according to the 39 mutations attested during the period for this particular kind of land `Maim' were considered. As a result per Kanal rate comes to Rs.14,611.40 which appears to be quite fair and reasonable and is allowed."

22. It may further be pointed out that the learned Referring Judge has relied upon the Local Commissioner's report, appointed by him, who worked out the average price inter alia on the basis of mutation of 1983 for one Kanal. The High Court has assessed the amount of compensation; at Rs.20,000 per Kanal on the basis of the amount assessed in the other appeals arising out of the reference pertaining to the other portion of the land which was the subject‑matter of the notification in issue. The relevant portion of the High Court's judgment reads as follows:‑‑ "It is worthwhile to mention here that alongwith the suit land other land bearing Khasra Nos.1047, 1058, 1059, 1060 and 1069/1 total measuring 50 Kanals 8 Marlas including the suit Khasra numbers and in one compact block adjacent to road and of the same classification viz. `Maira' were acquired through the same Award for the construction of Government Inter College, Havelian and the price for the entire land was fixed at the rate of Rs.14,611.40 in the Award. The owners of the other lands also did not accept valuation and made separate references which were forwarded to the Reference Court for determination who registered them as 1/4, 2/4, 5/4 of 1985. Since these references related only to the valuation of the land, they were consolidated vide order dated 29‑9‑1985 and after the recording of the evidence led by the parties in case 1/4 of 1985 the. learned Reference Court (Senior Civil Judge, Abbottabad) vide consolidated judgment, dated 10‑3‑1986, enhanced the compensation to Rs.48,767 per Kanal. Both the parties being not satisfied with the enhanced compensation awarded, preferred independent appeals before this Court which were registered as R.FAs. Nos.73/86, 74/86, 96/86, 134/86, 136/86 and 135/86 and were disposed of through a consolidated judgment dated 28‑3‑1989 in case R.FA. No.73/86 by a Division Bench of this Court whereby on the acceptance of the appeal(s) filed by Government, the judgment of the learned Reference Judge was modified and the compensation per Kanal was reduced to Rs.20,000 and in consequence dismissed the appeals filed by the landlords. The certified copy of the judgment has been placed by the learned counsel for the appellant on the instant file and he emphasized that the quality and potential value of the land in suit which was subject‑matter of the R.FA. No.73 of 1986 being same, the compensation awarded for the suit land also need reduction to Rs.20,000 per Kanal to avoid discriminating treatment." '

23. Mr. Abdul Hakeem Khan has vehemently contended that the suit land was a prize land as it was situated near the road in a populated area. He also contended that the High Court wrongly pressed into service its earlier judgment in the R.FAs. referred to in the above‑quoted portion of the judgment, and that the appellant's case was distinguishable from the cases covered by the above earlier judgment firstly, for the reason that in those cases a Local Commissioner was not appointed and, therefore, his report was not on record and, secondly, the appellant had produced five mutations dated 19‑10‑1979, 17‑11‑1979, 6‑1‑1980, 9‑4‑1980 and 12‑12‑1983. He has also urged that the High Court has not taken into consideration the potentials of the suit land.

24. It may be pertinent to observe that the Reference Judge erred in abdicating his jurisdiction in favour of a Local Commissioner for assessing the amount of compensation, secondly, the basis adopted by the Local Commissioner i.e. the mutations of small pieces of land of the year 1983 was not in consonance with law. The High Court has dilated upon this aspect effectively as cinder:‑‑‑ "The learned Commissioner has based his opinion on two mutations one attested in 1983 whereby one Kanal of land 'adjacent to the College building was sold for Rs.1,45,000 and other attested in the year 1986 whereby also one Kanal of land was sold for Rs.1,00,000 and on the basis thereof drew a presumption that in 1979‑80 the price of the land in the vicinity must have been Rs.75,000 per Kanal. We are afraid these conclusions are not well‑founded. The mutations as well as `Shajra‑Aks‑Kistwar' annexed to the report shows that the land, subject‑matter of the mutations was purchased for the construction of shops adjacent to the roadside. Obviously at the time of that purchase the College building had already been constructed and the land adjacent to the roadside had increased value manifold. The learned Commissioner has not been able to lay hand at any sale in the vicinity at the time of the notification under section 4 and has not been able to' give definite opinion as to what was the rate relevant at that time. We are therefore, of the opinion that the conclusions of the learned Commissioner are not well‑founded and should not have been made the basis of the judgment by the learned lower Reference Court." As regards the above five mutation entries, it will suffice to say that the appellant should have produced the mutation entries of one year period prior to the date of the above notification and not the above five selective mutations. The date of corrigendum cannot be made basis as it has not affected the suit land. The same have not been rightly relied upon. The amount of Rs.20,000 per Kanal seems to be reasonable keeping in view the potentials and other factors of the suit land. The question of delay in making the award has already been dealt with hereinabove.

25. In our view the judgment under appeal does not suffer from any infirmity as to warrant interference by this Court. This appeal also fails. However, there will be no order as to costs. M.BA./L‑57/S Order accordingly.