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Petitioner: Pervaiz Akhtar and others VS Respondent: Land Acquisition Collector and others
Court Name: Lahore High Court Judge(s): Shahid Jamil Khan, Ahmad Nadeem Arshad Title: Pervaiz Akhtar and others vs Land Acquisition Collector and others Case No.: R. F.A. No.75623 of 2019 Date of Judgment:2022-01-17 Reported As: 2022 LHC 1641 Result: Appeal Allowed
JUDGMENT
JUDGMENT AHMAD NADEEM ARSHAD, J. This Regular First Appeal under Section 54 of the Land Acquisition Act, 1894 (the Act) has been directed against the judgment and memo of cost, dated 15.11.2019, whereby the reference, filed under Section 18 of the Act ibid, was dismissed by the learned Referee Court. 2. Briefly , the facts, forming factual canvass of this appeal, are that land of the appellants measuring 194 kanal 15 marla was acquired through acquisition proceedings. Notification under Sections 4, 5 & 6 of the Act were issued on 24.04.2004, 07.11.2008 and 26.01.2009 respectively . The Board of Revenue assessed the price of the land on 30.05.2009 and finally the award was announced on 15.07.2009 and rate of the acquired land was fixed @ Rs.400,000/- per acre. Feeling aggrieved, appellants filed reference before the Collector on 11.08.2009 which was sent to the learned Referee Court on 12.08.2009. The appellants claimed rate of the acquired land @ Rs.35,00,000/- per acre besides raising certain objections with regard to the acquisition proceedings viz. fixation of price of land less than the market price; non-consideration of the objections raised by the appellants; proceedings of acquisition were conducted surreptitiously and the future potential of acquired land was not considered while fixing its price despite the fact that the acquired land is situated on the main roadside of Chak No.334/JB which area falls within Category-A of agricultural land. The learned Referee Court registe red the reference on 02.09.2009 and issued notices to respondents. Respondents No.1 & 2 filed written reply on 19.11.2009 by raising preliminary objections that the appellants were estopped by their words and conduct to file the reference; that the reference is badly time barred; that the reference is false and frivolous as such the respondents are entitled to special costs and also denied all the facts pleaded in the reference by stating to be incorrect and prayed for dismissal of reference. The learned Referee Court, keeping in view divergent stances of the parties, framed following Issues:-
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1. Whether the petitioner 's property was not evaluated and assessed by the respondents according to the market value and the petitioners are being compensated for less amount against the suit property , therefore, the petitioners are entitled for the enhancement of the compensation awarded by the respondents as prayed for?OP A. 2. Whether the petitioners are estopped by their words and conduct to file the petition?OPR 3. Whether the reference is badly time barred and liable to be dismissed?OPR 4. Whether the reference is false, frivolous and respondents are entitled to special cost in the event to dismissal of the reference?OPR. 5. Relief. To prove their claim, the appellants examined Pervaiz Akhtar , one of the appellants, as AW-1, Muhammad Tariq as AW-2, Anwar-ul-Haq as AW-3, Jahangir Khan Halqa Patwari as AW-4, Bilal Hussain Patwari /Record Keeper NHA Faisalabad as AW-5, Sana Ullah Hinjra Tehsildar as AW-6, Muhammad Boota as AW-7,. After remand Jahangir Patwari again appeared as AW-8, Pervaiz Akhtar as AW-9. In documentary evidence, the appellants produced Average Sale price as Exh.A-1, site plan as Exh.A-2, copy of Award as Exh.A-3, copy of minutes of the meeting as Exh.A-4, copy of approval of estimated cost as Exh.A-5, copy of notification No.708 as Exh.A-6, copies of Jamabandies regarding Khewat No.53 for the year 2007-08 as Exh.A-7, Exh.A-8, Exh.A-10 & Exh.A-1 1, copies of Jamabandies regarding Khewat No.51 as Exh.A-9, & Exh.A-12, copy of index map as Exh.A-13, copy of announcement of award as Exh.A-14, attested copies of application alongwith reports regarding review of acquired land as Exh.A-15, attested copy of mutation No.1063 dated 24.06.2004 as Exh.A-16, attested copy of mutation No.1243 dated 31.03.2007 as Exh.A-17, attested copy of mutation No1258 dated 21.07.2007 as Exh.A-18, attested copy of mutation No.875 dated 27.09.200 6 as Exh.A-19, attested copy of mutation No.1760 dated 07.02.2015 as Exh.A-20, attested copy of mutation No. 1780 dated 07.05.2015 as Exh.A-21, attested copy of mutation No.1400 dated 26.02.2010 as Exh.A-22, attested copy of mutation No.1503 dated 28.06.201 1 as Exh.A-23, copy of application for review of assessment as Mark-A and copy of reports of field staf f as Mark-B. 3. In rebuttal, the respondents produced Ghulam Rasool, Girdwar NHA as RW-1, Sajjad Mahmood Babar LAC as RW-2, Ghulam Rasool Land Acquisition Officer as RW-3, Muhammad Arshad Qanungo as RW-4. In documentary evidence, the respondents tendered copy of mutation No.1383 as Exh.R-1. 4. Besides, the appellants moved an application for appointment of local commission for ascertaining the value of the acquired property . The respondents filed contesting written reply . The learned Referee Court allowed the application vide order dated 08.07.2013 and appointed local commission for spot verification. The local commission submitted his report dated 24.07.2013 by stating that the price of the land is approximately 40/50 lacs per acre. The respondents filed objection petition which was allowed and report of local commission was rejected vide order dated 19.10.2013. The appellant moved fresh application for appointment of local commission which was again contested by respondents. The learned Referee Court allowed the application vide order dated 20.10.2014 and appointed local commission namely Mr. Imtiaz Ahmad Khan Advocate. The local commission submitted his report on 18.12.2014, the respondents again filed objection petition upon the report of local commission. The learned Referee Court vide order dated 23.02.201 5 decided that the objection with regard to the report of local commission will be decided at the time of final decision of the reference. Imtiaz Ahmad Khan Advocate/Local Commission appeared as Court witness and recorded his statement as CW -1 and submitted his report as Exh.CW -1. 5. After recording evidence of the parties, pro and contra , decided the reference vide judgment and memo of cost dated 26.03.2015. Feeling aggrieved, the appellants preferred an appeal (R.F.A. No.685 of 2015) before this Court which was allowed vide judgment dated 24.04.2018 and the impugned judgm ent and memo of cost dated 26.03.2015 was set-aside and the case was remanded to the learned Referee Court for deciding the same afresh after recording further evidence. The parties produced additional evidence. After providing opportunity of hearing to the parties, the learned Referee Court dismissed the reference vide judgment and memo of cost dated 15.11.2019. Being dissatisfied, appellants preferred the instant appeal. 6. Learned counsel appearing on behalf of the appellants argued that the impugned judgment and decree passed by the learned Referee Court is against the law and facts; that impugned judgment is result of mis-reading and non-reading of oral as well as documentary evidence; that the land of the appellants is situated at roadside and
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best agricultural land, but despite this, the price was not properly assessed rather the appellants have been deprived of their precious land against petty amount; that the learned Referee Judge failed to examine that proper assessment of price of acquired land has never been made by the Land Acquisition Collector rather based his opinion on the recommendation of Price Assessment Committee which is alien to the scheme of law provided under the land Acquisition Act, 1894; that the learned Referee Court failed to give any findings with respect to the potential value and location of the acquired land while dismissing reference; that none of the settled parameters for determining compensation has been considered by the Land Acquisition Collector ; that the appellants have been deprived of their right to the compensation provided under Section 34 of the Land Acquisition Act, 1894; that the recommendation of the Price Assessment Committee were tentative in nature which were considered as final in violation to the principles enumerated in Sections 23 & 24 of the Act; that the report of local commission was not brushed aside without giving any solid reason; that the appellants have been denied their fundamental rights enshrined in the Constitution of Islamic Republic of Pakistan, 1973 and finally beseeched for acceptance of this appeal. 7. Conversely , learned counsel for respon dents- defendants, while defending the impugned judgment and memo of cost, argued that the leaned Referee Court passed the impugned judgment and memo of cost strictly in accordance with law; that no mis-reading or non-reading of evidence on the part of the learned Referee Court has been pointed out by the learned counsel for the appellants; and the learned Referee Court applied correct law while considering the dicta laid down by superior courts with regard to fixation of the compensation and prayed for the dismissal of the appeal. 8. We have heard learned counsel for the parties and perused the record with their able assistance. 9. With regard to the controversy between the parties, the learned Referee Court decided issue No.1 in the following manner:- "As regards potential of the acquired land, the petitioners have not lead any evidence to show that the remaining land of the petitioners or any of the adjoining lands have either assumed the commercial character by building shops, housing societies or plazas etc., or gardens for that matter and the average sale price (Exh.A1) in the year 2004-05 was Rs.2,02,303/- per acre whereas the petitioners have been awarded Rs.4,00,000/- per acre therefore even Exh.A1 goes against the petitioners. Ex.A1 neither shows nature of the land nor gives details of price of lands situated alongside road and off road therefore Exh.A1 is not sufficient to determine value of the acquired land at the time of acquisition or any time after that." 10. The Act is founded upon the doctrine that the interest of the public is supreme and that the private interests are subordinate to the interest of the State. The Act was promulgated for the purpose of compulsory acquisition of land needed for the public purpose and for determination of amount of compensation to be made on account of such acquisition. Although the Act has been devised to deprive citizens of their valuable rights in property through a somewhat coercive measures by State exercising authority under a Statue but such exercise should have been only for public purpose. However , bare reading of the Act leaves one with the stron g impression that prime intent of the legislature was to ensure the protection of the rights of the citizens whose property is being acquired. They are to be given gold for gold and not copper for gold. In this background the scheme of law under Land Acquisition Act, 1894 is complete and exhaustive, which apart from mode of acquisition of land, provides a scheme containing mechanism for measurement of land, assessment of its value, payment of compensation to the affected persons and remedy in case of any dispute. 11. The scheme of the Act is very simple as it consists of fifty five sections divided into eight parts. The procedure of acquisition starts when a notification under section 4 is issued notifying the land required for a public purpose and invited objections. The objection to such acquisition may be made by any person having interest in the property and the hearing is granted on the objections, if any, raised under section 5-A of the Act whereas the determination that the land is required for public purpose is done by issuing declaration in the notification in terms of section 6 of the Act. Section 11 postulates the enquiry and passing of the award by the Collector and while doing so, it requires the Collector to determine (i) the true area of the land (ii) the compensation which in his opinion should be allowed for the land and (iii) the apportionment of the said compensation amongst all the persons known
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or believed having interest in the land, of whom or of whose claim, he has information, whether or not they have respectively appeared before him. Section 12 of the Act states that the award of the Collector shall be final and conclusive evidence as between the Collector and the person interested, in respect of the amount of compensation. It has, however , been held that the award is merely an offer to tender the compensation to the owner of the property and if the offer is not acceptable, section 18 of the Act grants the owner of the land a statutory remedy for seeking determination of the amount of compensation from the Court by filing Reference before the Collector . 12. The assessment of compensation is made in the light of Section 23 of the Act which stipulates guiding principles for the Courts to consider the compensation one the move of a person has an interest in the acquired land and is aggrieved of the compensation determined and settled through award. The said provision reads as under: - "Matters to be considered in determini ng compensation.- (1) In determining the amount of compen sation 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, sub-section (1)]. [Explanation- For the purpose of determining the market-value, the Court shall take into account transfer of land similarly situated and in similar use. The potential-value of the land to be acquired if put to a different use shall only be taken into consideration if it is proved that land similarly situated and previous ly in similar use has, before the date of the notification under sub-section (1) of section 4, been transferred with a view to being put to the use relied upon as affecting the potential value of the land to be acquired: Provided that- (i) if the market-value has been increased in consequence of the land being put to a use which is unlawful or contrary to public policy that use shall be disregarded and the market-value shall be deemed to be the market- value of the land if it were put to ordinary use; and (ii) (ii) if the market-value of any building has been increased in consequence of the building being so overcrowded as to be dangerous to the health of the inmates, such overcrowding shall be disregarded and the market-value shall be deemed to be the market-value of the building if occupied by such number of persons only as can be accommodated in it without risk of danger to health from overcrowding]. 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 award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition, if the acquisition has been made for a public purpose and a sum of twenty-five per centum on such market-value if the acquisition has been made for a Company]." From bare reading of afore-quoted provision, it appears that the land owner is entitled for compensation at the market value of the land so acquired coupled with the amount of damages sustained due to acquisition proceedings. Further , a land owner is entitled to compensation in view of its future potential value and additional compensation for reverence, injurious affection and disturbance. The landowner is entitled to compensation and not just market-value, hence, loss or injury occasioned by its severing from his property by change of residence or place of business and loss of profits are also relevant. The delay in the conclusion of the acquisition proceedings[50] [51] [52]
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cannot be lost sight of. While conducting the aforesaid exercise, oral evidence, if found, credible and reliable can also be taken into account. 13. The august Supreme Court of Pakistan in the case of "Abdur Rauf Khan V. Land Acquisition Collector/DC (1991 SCMR 2164 ) while dilating upon the question relating to rate of compensation laid down following guiding principles:- (i) That an entry in the Revenue Record as to nature of the land may not be conclusive, for example, land may be shown in Girdawri 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 cable 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." Further , the apex court of the country in the matter of "Murad Khan V. Land Acquisition Collector" (1999 SCMR 1647 ) defined the term "Market value" with specific reference section 23 of Act in the following manner:- (i) The data from which the market value of the land can be estimated is given in Rule 13 of the North West Frontier Province Circular No.54 issued presumably under section 55 of the Act. (Premier Sugar Mills Limited v. Hayatullah Khan (PLD 1956 (W .P) Pesh.67). (ii) 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 , Rawalpndi v . Lieut. General W ajid Ali Khan Burki (PLD 1960 (W .P) Lah. 469). (iii) 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 serving such land from his other land, acquisition injuriously affecting his 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 and 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 acquisition. (Province of W est Pakistan and another v . M. Salim Ullah and others ( PLD 1966 SC 547 ). (iv) 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(1) 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 determine d 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 W est Bengal (AIR 1971 Caleutta 458). (v) It is obvious that the law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining the market value, classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani as in the present case but its market value may be tremendou sly high because of its location, neighbourhood, potentiality or other benefits. (Pakistan and another v . Rehm Dad and another ( 1980 CLC 574 .). (vi) According to the well-settled principle, while determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration. (Pakistan v. Din Muhammad and others ( 1983 CLC 1281 ). (vii) Consideration should be had to all the potential uses to which the land can be put, as well as all the advantages, present or future, which the land possesses in the hands of the owners. (Mst. Khatu and others v. Barrage Mukhtiarkar , Thatta ( PLD 1977 Kar . 203 ).
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(viii) 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 ( PLD 1978 Lah. 1 135). (ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a 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 ). (x) 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 compensation 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 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 save money on 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 actually paid. The previous sales of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired. (Fazalur Rehman and others v. General Manager , S.I.D.B. and another ( PLD 1986 SC 158 ). (xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value. (Government of Pakistan v . Maulvi Ahmed Saeed ( 1983 CLC 414 ). (xii) It is a well-settled law that in cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and land on the material date. The potenti alities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act. (Central Government of Pakistan v. Sardar Fakhar-e- Alam and another ( 1985 CLC 2228 ). (xiii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted, should be taken into consideration. (Raza Muhammad Abdullah through his Legal Heirs v . Government of…
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