PLJ 2011 SC 22
[Appellate Jurisdiction]

Present: Javed Iqbal, Raja Fayyaz Ahmed & Muhammad Sair Ali, JJ.

LAND ACQUISITION COLLECTOR, etc.--Appellants

versus

Mst. IQBAL BEGUM etc.--Respondents

Civil Appeal Nos. 1259 and 1260 and 1265 of 2003, decided on 7.1.2010.

(On appeal from the judgment dated 12.6.2003 passed by the Lahore High Court, Lahore in RFA No. 589/2001).

Land Acquisition Act, 1894 (I of 1894)--

----S. 3--Acquisition of land--Nature of land--Land was situated in surroundings of Ravi River--Compulsory acquisition charges and compound interest as admissible under law cannot be declared to be on the high side--When examined in light of prevalent market price in adjoining village--Consideration its potentiality and location--Validity--Potentiality of land should not be determined merely at the time of issuance of notification u/S. 3 of Act--But it should be also with reference to use to which land is reasonable capable of being put in future. [P. 25] A

1991 SCMR 572, ref.

Land Acquisition Act, 1894 (I of 1894)--

----Scope of--Main object of land of Acquisition Act, is to provide complete indemnity to the owner and no property is to be acquired without proper and adequate compensation. [P. 25] B

AIR 1922 Calcutta 386 & 1972 SCMR 138, ref.

Land Acquisition Act, 1894 (I of 1894)--

----Ss. 23 & 24--Potential value--Factor was determined and un-exceptionable--Size and shape of land--Locality and its situation--Tenure of property--User its potential value--Proper and potential value--Held: It is well settled by now that to determine compensation the Court must ascertain the value on the date of notification, considering various factors including nature and location of acquired land and sale price of adjoining lands--In assessing market value of land, its location, potentiality and price evidence by transactions of similar land, at the time of notification are factors which should be kept in view--One year's average of sales taking place before publication of notification land is merely one of modes for ascertaining market value and is not an absolute yardstick for assessment of compensation--Status of acquired land, its potentialities and its likelihood of development and improvement would be necessary factors for determining rate of compensation. [P. 26] C

PLJ 1993 Quetta 6, NLR 1993 SCJ 655, 1994 CLC 160 & 1996 SCMR 1361, rel.

Determination of compensation--

----Potentiality of land--Determination of compensation should be based merely on the past sales--Validity--Potentiality of land cannot be determined without examining its future prospects and therefore, compenation cannot be based merely on the basis of past sales. [P. 26] D

PLJ 1996 Pesh. 107, 1996 CLC 1193, 1990 MLD 2158 and 1978 SCMR 5, fol.

Mr. Jehanzeb Khan Bharwana, ASC for Appellants. (In C.As. No. 1259-1260/2003).

Ch. Mushtaq Masood, ASC for Appellants. (In C.A. 1265/2003).

Ch. Mushtaq Masood, ASC for Respondents. (In C.As. No. 1259-1260/2003).

Mr. Jehanzaib Khan Bharwana, ASC for Respondents (In C.A. No. 1265/2003).

Date of hearing: 7.1.2010.

Judgment

Javed Iqbal, J.--The above captioned appeals, which are identical in nature and arising out of the same judgment, are being disposed of by this single order. The facts of the case have, in some detail, been set out in the judgment impugned and need not, therefore, be reproduced here in extenso.

2. Mr. Aurangzeb Khan Bharwana, learned ASC entered appearance on behalf of appellants and contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective by the learned Division Bench of the Lahore High Court resulting in serious miscarriage of justice. In order to support the said contention it is submitted that the documentary evidence produced by the appellants has not been considered with diligent application of mind and the quantum of compensation determined by the Land Acquisition Collector in the Award dated 28.2.1995 @ Rs. 10,000/- per marla in violation of the provisions as enumerated in Sections 23 and 24 of the Land Acquisition Act, 1894 (hereinafter referred to as Act) has been kept intact without having gone through the above mentioned provisions of law. It is next contended that no convincing documentary evidence could be led by the respondents in support of their claim and the Award given by the learned Collector is based on extraneous considerations which aspect of the matter also went unnoticed. It is urged emphatically that the nature of potential of land was not taken into consideration as admittedly it was neither commercial nor located within the Municipal limits of Lahore at the time of issuance of notification under Section 4 of the Act. It is also mentioned that various mutations (Ex.P/3 to P/8) were produced and ignored. The relevant sale-deeds could not have been considered in isolation. It is also argued that the Reference preferred under Section 18 of the Act suffered from mis-joinder and non-joinder of necessary parties. It is submitted that the requisite mandatory notices were issued and moreso the respondents had received compensation under the Award dated 28.2.1995 without any protest and, therefore, the Reference was not maintainable. It is next argued that the compensation has been determined on the basis of potentiality of land without examining its potentials and the conclusion is based on conjectural presumptions.

3. Ch. Mushtaq Masood, learned ASC entered appearance for respondents and supported the judgment impugned for the reasons enumerated therein with the further submission that the compensation has been determined strictly in view of the provisions as enumerated in Section 23 of the Act and the question of any extraneous consideration does not arise. It is also pointed out that the documentary evidence has been appreciated in its true perspective and the potentiality of the land has been determined after having taken into consideration all the relevant factors. It is contended that no illegality or irregularity could be pointed out warranting interference in the judgment impugned.

4. We have carefully examined the respective contentions as agitated on behalf of the parties and perused the judgment impugned carefully. We have also scanned the entire evidence which has come on record with the eminent assistance of learned counsel. After having an in depth scrutiny of the evidence, we are of the view that it has been analyzed in accordance with the settled norms of justice and the conclusion arrived at by the learned Division Bench of the Lahore High Court is in consonance with the evidence and supported by the principles enunciated by this Court on various occasions. A careful perusal of the judgment impugned would reveal that the learned Division Bench has mainly relied on the dictum laid down by this Court in cases titled Province of Punjab through Collector Sheikhupura and others v. Akbar Ali and others (1990 SCMR 899), Market Committee, Kanganpur through Administrator v. Rayyat Ali and others (1991 SCMR 572), Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCMR 2164), Maqbool Ahmed Fatehally and others v. The Collector, District Lasbella and others (1992 SCMR 2342), Land Acquisition Collector, Rawalpindi and others v. Dina and others (1999 SCMR 1615), Murad Khan through his widow and 13 others v. Land Acquisition Collector and another (1999 SCMR 1647), Province of West Pakistan and another v. M. Salim Ullah and others (PLD 1966 SC 547), Collector, Land Acquisition, Mardand and others v. Nawabzada M. Ayub Khan and others (2000 SCMR 1322), Fazal Haq College through Vice Chairman v. Said Rasan and others (PLD 2003 SC 480), 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 [Revenue] 23) which depicts a laborious exercise.

5. It would be relevant to mention here that the land in question is situated in the surroundings of `Ravi River' and the average value of the land as per mutations (Ex-P/3 to Ex-P/8) an amount of Rs.20,000/- per marla plus 15% compulsory acquisition charges and 8% compound interest as admissible under law cannot be declared to be on the high side when examined in the light of prevalent market price in the adjoining Mouzas as is indicative from the Ex-P/9. The nature of land has been considered by taking into consideration its potentiality and location. It is worth mentioning that the potentiality of land should not be determined merely at the time of issuance of notification under Section 3 of the Act but it should be also with reference to the use to which land is reasonable capable of being put in the future. Reference in this regard can be made to Market Committee v. Rayyat Ali (1991 SCMR 572). Here at this juncture we may like to point out that the main object of land of Acquisition Act is to provide complete indemnity to the owner and no property is to be acquired without proper and adequate compensation. (Chairman, Serampore Municipality v. Secretary of State for India AIR 1922 Calcuta 386, West Pak. WAPDA v. Hiran Begum 1972 SCMR 138). The learned ASC on behalf of appellant was asked pointedly that the compensation as determined by the learned High Court in accordance with the plus factors contained in Section 23 of the Act and minus factors contained in Section 24 of the Act and why it should be reversed but no satisfactory answer could be given by the learned ASC on behalf of appellant except that the compensation appears to be on high side. He, however, could not substantiate "high side" by mentioning any cogent and concrete evidence. "The principles laid down for determination of compensation reflect anxiety of law-giver to compensate those deprived of property adequately enough so as to be given gold for gold and not copper for gold." (Nazarul Hussain v. Collector PLD 1990 Lahore 472, Nazarul Hussain v. Collector, Lahore PLJ 1990 Lahore 488, Land Acquisition Officer v. Kambar Ali Beg 1981 CLC 556). Various factors have to be taken into consideration i.e. the size and shape of the land, the locality and its situation, the tenure of property, the user, its potential value, and the rise or depression in the value of the land in the locality and even in its near vicinity. In our view real, proper and potential value, keeping in view all the relevant factors has been determined and it is unexceptionable. It is well settled by now that "to determine compensation the Court must ascertain the value on the date of notification, considering various factors including nature and location of acquired land and sale price of adjoining lands. In assessing market value of land, its location, potentiality and price evidenced by transactions of similar land at the time of notification are factors which should be kept in view. One year's average of sales taking place before publication of notification under Section 4 of similar land, is merely one of the modes for ascertaining market value and is not an absolute yardstick for assessment of compensation. Moreover, status of acquired land, its potentialities and its likelihood of development and improvement would be necessary factors for determining rate of compensation." (Water and Sanitation Authority v. Niaz Muhammad PLJ 1993 Quetta 6, Pakistan Burmah Shell Ltd. v. Prov. Of NWFP NLR 1993 SCJ 655, Land Acquisition Officer, Badin District v. Altaf Hussain Shah 1994 CLC 160, Government of Sindh v. Shakir Ali Jafri 1996 SCMR 1361). We are not impressed by the contention of learned ASC on behalf of appellants that the determination of compensation should be based merely on the "past sales" for the reason that the potentiality of land cannot be determined without examining its future prospects and therefore, compensation cannot be based merely on the basis of "past sales". In this regard, we are fortified by the dictum laid down in the following authorities:

Collector, Land Acquisition v. Abdur Rashid (1996 CLC 1193), Collector Land Acq., Nowshera v. Abdur Rashid (PLJ 1996 Pesh. 107), Land Acquisition Collector v. Abdur Rashid (NLR 1996 Rev. 100), West Pak. WAPDA v. Hiran Begum (1972 SCMR 138), Islamic University, Bahawalpur v. Khadim Hussain (1990 MLD 2158), Government of Pakistan Rawalpindi and another v. Malik Muhammad Aslam and 5 others [1978 SCMR 5).

6. We cannot overlook the well entrenched principle i.e. "what a willing purchaser would have paid for the land in question" which is to be followed while fixing the compensation. If any authority is needed, reference can be made to Government of Pakistan Rawalpindi and another v. Malik Muhammad Aslam and 5 others (1978 SCMR 5).

7. In the light of what has been discussed hereinabove the judgment impugned being unexceptionable does not warrant interference. The appeals being meritless are accordingly dismissed.

(R.A.) Appeals dismissed.