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Petitioner: GOVERNMENT OF PAKISTAN VS Respondent: Maulvi AHMAD SAEED
Court Name: Lahore High Court Judge(s): Muhammad Aslam Mian, Munawar Elahee Rana Title: GOVERNMENT OF PAKISTAN vs Maulvi AHMAD SAEED Case No.: Regular First Appeal N. 71 of 1976 Date of Judgment:1982-01-10 Reported As: 1983 CLC 414 Result: R. F. A. Dismissed.
JUDGMENT
JUDGMENT ' MUHAMMAD ASLAM MIAN, J.-This is a Regular First Appeal having been brought against the judgment dated 19th December, 1975 of Mr. Ghulam Sarwar Sheikh, Administrative Civil Judge, Gujranwala, passed on a reference under section 18 of the Land Acquisition Act, made in an application by the respondent No, 1 originally addressed to the Land Acquisition Collector, Gujranwala, whereby the learned Civil Judge modified the award by enhancing the amount of compensation of the land acquired. 2. The facts leading up to this appeal briefly are that by a Notification dated 26th June, 1968 under section 4 of Act No, 1 of 1894 and subsequently followed by a notification dated 8th October, 1969 under section 6 of the Act there was acquired the land measuring 69 Kanals 11-5/9 Marlas situated in village Garjakh Tehsil and District Gujranwala with an object of raising the Defence Clothing Factory. The Land. Acquisition Collector, Gujranwala by his award dated 1st December, 1969 valued the acquired land at the rate of Rs, 100 per marla plus 15 per cent, compulsory charges. 3. The respondent No, 1 who owned the land measuring 47 Kanals 17 Marlas out of the total land acquired, being aggrieved of the valuation by the Collector put in a petition under section 18 of the Act addressed to the Collector for a reference to the Civil Court for determination of the question of valuation which ultimately came to be decided by the abovesaid learned Civil Judge. 4. The respondent No, I maintained in his application that the land acquired had been greatly under-valued whereas the valuation properly put in accordance with the market value would have not been less than rupees one lac per acre since the land stood by the metalled road Qadirabad- Gujranwala and being near the Abadi of village Dullahi Rajkot and Garjakh. The land was at a distance of one mile from Gujranwala. The factories, shops and residential quarters were being
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constructed alongwith the Qadirabad-Gujranwala-Road and also residential quarters had been constructed in proximity to the land in disputed towards Gujranwala side and to the opposite. The land by its quality was very fertile, being close to the city would have yielded good profits in sowing vegetables, etc. The respondent referred to a sale of an acre of his land on the Hafizabad- Gujranwala Road at Rs, 79,500, 8/9 months before the acquisition of his land. An exception was also taken to the award in respect of compensation for the standing crops which according to the respondent should *have been valued at Rs, 10,000 and as to the construction of new watercourse should have been awarded compensation. 5. The appellant denied the allegations and claims of the respondent alongwith a preliminary objection that the petition was barred by time, maintaining on facts that the amount of Rs, 16,000 per acre as awarded by the Land Acquisition Officer was quite fair and reasonable having been awarded against an yearly average sale price of Rs, 8,273.60, per acre. The land was situated far away from the abadi. As to the valuation of crops it was stated that the crops were not mature at the time of taking possession even then the compensations were awarded at the rate of Rs, 560 per acre for Shaftal, Rs, 789 per acre for potatoes and Rs, 800 per acre for peas. As to the compensation for the watercourse the reply was that the land used for watercourse and passage stood excluded from the acquisition at the time of award. The Government of the Punjab (respondent No, 2) also entered written statement denying and controverting the contents of the application taking more or less the same position as did the appellant. 6. The learned Civil Judge raised two issues on the pleadings of the parties :- (1) Whether the compensation covered by the impugned award is inadequate ? If so, what is the adequate compensation ? 0 P A. (2) Relief. 7. The respondent No, 1 as petitioner adduced evidence by first producing Shamasuddin Patwari from whom he got proved a copy of Shajra Kishtwar which was exhibited as P. 1. The respondent appearing as his own witness deposed to the facts as set out in his application. The documentary evidence was confined to the abovesaid copy of Shjra Kishtwar, copy of the award Exh. P. 2 and certain copies of mutations ranging from Exh. P. 3 to Exh. P. 10. ' The appellant preferred not to produce any evidence in support of the statement as well as in rebuttal. The other party despite the opportunities did not adduce any evidence with the result that under Order XVII, rule 3, C. P. C. The case was closed on 5th May, 1975. 8. The learned Civil Judge in resolving Issue No, 1 after viewing the body of the award Exh. P. 2 as to the basis of valuation by the Collector on yearly average from 26th June, 1968 to 25th June, 1969 as opposed to the price in mutations wherein according to the Collector higher prices were entered in order to ward off the pre-emptors, came to observe that the material on the record amply proved that the land acquired was situated adjacent to abadi Rajkot and the precincts of Gujranwala city. He fortified his observation in this behalf by referring to the award wherein the Collector had expressed that the land acquired was situated on the Gujranwala-Qadirabad Road at a distance of 1/2 mile from the village abadi Dhulley, one mile from Municipal limit. Gujranwala ; one mile from abadi village Garjakh and about one furlong from the abadi Rajkot" and concluded his observation by holding that the respondent No, 1 could justifiably prefer his claim in accordance with the prevalent market price of the land of the urban area situated close to his land. 9. The learned Civil Judge put aside Exh. P. 4: to Exh. P. 10 ' embodying sale transactions on the ground that 'those transactions were effected long after the impugned acquisition, picked up mutation Exh. P. 3 sanctioned on 26th June, 1968. And treated that as a basis for determining the valuation of compensation. His reason in addition for relying on that mutation was, that the sale was accompanied by a duly registered deed and taking the land acquired as having been proved
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within the area surrounded by many residential houses, industrial concerns with a 'likelihood of immediate extension of the urban area towards the land acquired concluded his finding relying heavily on Exh. P. 3 and the statement of respondent No, 1 mindful of the fact that there was no evidence in rebuttal so as to treat the valuation for the purpose of compensation or the land acquired at Rs, 540 per Marla. According to the disposition of respondent No, 1 at Rs, 80,000 per Killa and modified the award accordingly. 10. The first contention of the learned counsel for the appellant is that Exh. P. 3 to Exh. P. 10 are not admissible in evidence on the ground that these documents have been admitted without having been properly proved. The tendering of certified copies is not enough. It has been rightly put by the learned counsel for respondent No, 1., that the documents Exhs. P. 3 to P. 10 which purport to be certified copies of the mutations are admissible in evidence being certified copies without further proof under clause (4) added by way of amendmen in the Law Reforms Ordinance, 1972 (XII of 1972) to section 74 of the Evidence Act read with section 77, Clause (4) reads as :- "documents required to be maintained by a public servant under any law." So the documents produced fall within this clause as such being public documents the certified copies are admissible in proof of the contents thereof under section 77 of the Evidence Act. It is informative to note that these certified copies were tendered on 15th January, 1974 when the amended law was in force, even otherwise as argued by the learned counsel, under Order XIII, rules1 and 4, C. P. C. Read with section 64 of the Evidence Act, documents once admitted and exhibited without any objection as to the formal proof at the earliest stage are admissible in evidence and no exception can be allowed to be taken at the appellate stage and that too during the arguments. In this regard the learned counsel's reliance in the alternative, on Abdullah and 3 others v. Abdul Karim and others, Malik Din and another v. Muhammad AslamCopal Das v. Shri Thakurji, Sheikhupura Central Co-operative Bank Ltd. v. Ch. Tawakkalullah and another, is well placed. 11. The learned counsel for the appellant has next contended that mere production or tender in evidence of the mutation entries will not warrant correctness as to their contents and in this behalf has relied on Islamic Republic of Pakistan v. Abdul Wali Khan. In this case as to the relevant issue the documentary evidence consisted, inter alia, of intelligence report, the documents consisting of official Government records, nothings, summaries, extract from books/pamphlets, judgments and newspaper reports both foreign and domestic reports. It was contended by the learned Attorney- General that presumption of regularity under illustration (e) of section 114 of the Evidence Act was attached to official acts. It was observed by the Supreme Court that the presumption was limited however only to the regularity of the act done but there was no presumption that what had been done was done rightly nor was there any presumption that whatever was stated in official records was correct except in certain kinds of official records to which a presumption of correctness was attached by a special law. The sum total of the observation appeared in respect thereof as :- "Such presumption of correctness is not by reason of anything contained in the Evidence Act but by the special law which empowers or requires a particular authority to maintain a particular record or make an entry in particular manner. There also the only presumption is that the entry so made represents the correct state of affairs on the date it was made. This presumption does not however attach to every official act or every entry in an official document particularly where the entry is not made as a result of an investigation or inquiry 'made by the officer himself as in the case of land or revenue record or entries in registers required to be maintained under a Statute. None of the official records filed in this case, are documents of this nature." 12. This decision of the Supreme Court as is obvious from its observation in no way impairs the value of a 'mutation when it is tendered in evidence as to its contents. There is a special procedure for making of periodical records relating to land owners as is given in sections 42 to 45 of the West1 2 3 4 5
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Pakistan Land Revenue Act, 1967. An entry of mutation being a relevant fact under section 35 of the Evidence Act, as such is admissible in evidence and when it is undisputed it has its evidentiary value as to the transaction it 'embodies, it can be positively quoted as an instance of sale with its contents. 13. The learned counsel for the appellant has laid some stress on his contention that the onus in issue No, 1 has not been discharged by respondent No, 1. It is true that the onus as to issue No, 1 is on the respondent. According to the learned counsel for the respondent, the respondent has adduced evidence by producing a number of mutations as to various sales, has deposed to all the contents of his application in the very substantiation of his case and has proved Shajra Kishtwar through the Patwari. The respondent has made out a case which entitles him to relief with which the onus shifts on to the appellant to prove circumstances if any which will disentitle the respondent. The appellant has not produced any evidence which is fatal to the case of the respondent. The well founded principal of law of evidence that if a party makes out a prima facie case which if unrebutted will ensure success for him, takes its application in such a case. It is also well-settled that if a party does not enter to rebut the evidence of its opponent it means that such a party accepts the evidence as it is. 14. The learned counsel for the appellant has argued that in mutation entries generally exaggerated price is entered in order to avoid prospective pre-emptors as such are not safe to be relied upon in order to ascertain the market value of the land. ' This is a mere generalization unless specifically pointed out and supported thereby on some evidence cannot be acted upon. Section 23 of the Land Acquisition Act refers to the market value of the land at the date of the publication of the notification under section 4, subsection. (1). Now for the ascertainment of market value, the reference is only taken to the actual transactions of sale which can be reckoned from the sale deed effected thereby, the mutation entries embodying sales alongwith their contents or by appointment of commission who does nothing but consults the revenue papers. An yearly average which is sometimes relies upon also happens to be based in its turn upon the revenue papers. In most of the cases direct evidence has seldom been led. Hence sale deed and mutation entries do serve as aids as to the prevailing market value. The learned counsel for the appellant to cover his contention has relied upon certain decisions which require some engagement. 15. In the Land Acquisition Collector v. Lieut-General Wajid Ali Khan Burki criterion as to market value has been set up as is expressed on page 481 :- "The best method of fixing the market value is to find what a willing purchaser would pay a willing seller. Instances of sale of lands in the vicinity are a good guide for arriving at the market value of the land which has been compulsorily acquired, but before the prices mentioned as-having been fixed for sales of land in the vicinity are accepted as a helpful piece of evidence,' it should be established not only that the sales took place near about the time at which the land was acquired but also that the sales related to the property so very much similar to the property that has been acquired." ' On page 482 it has been observed :- "It is extremely common that persons buying property have a higher prices mentioned in the document evidencing the sale in order to discourage the pre-emptors and it is clear that suspicion that. a higher price has been mentioned in the relevant document should at once arise if one finds that mice has suddenly shot up. Another thing that cannot be lost sight of is that as soon as information that Government is about to acquire land in a locality for a purpose which will enhance the value of the land in that vicinity reaches the owners of property in that locality, prices go up. All these things have to be kept in view before coming to the conclusion what the market value of piece of land compulsorily acquired at the relevant time was."6
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' It has been further observed on page 483 :- "The prices mentioned in the mutations relied upon would not consequently be entirely worthless as guides... ...... ' If the prices mentioned in some of the mutations relied upon as evidence be accepted as correct, it would appear that value of the land had gone up about eight times. I am not prepared to believe that such colossal increase occurred in the prices of the land in that vicinity in the space of four years particularly as it is not shown that any such thing had occurred as would make the price of Jand in the vicinity shoot up like a rocket." ' In this decision it has also been hinted at the fixation of price according to classification of the land. ' In respect with the observation it is being observed with due deference that the facts in the above case themselves warrant the conclusion so drawn as compared to the case in hand. Wherein so many mutations have been produced which give no such impression except that the prices mentioned therein are consistent with extraordinary change in time as to the land more or less of the same classification. The considerations prevailing in the above said decision are of course valuable but if these are treated as imperatives for all cases to come then these are likely to wage a difficulty in the matter of genuine cases. 16. In Muhammad and others v. S'ardul an observation has . Been made in a question of disputed sale, as to the weight of mutation as evidence of title which is not attracted in the present case. 17. In North-West Frontier Provice v. Shad Muhammad Khan and others the amount of compensation was assessed by the learned Acquisition Collector by working out an average on the basis of thirteen sale mutations as to the same type of land within the area attested during five years period before the target date. On reference the learned District Judge enhanced the amount of compensation as against the award by relying on two mutation Nos. 1643 and 1686. The learned Collector had not relied on those mutations, since according to him the prices entered therein were highly inflated. Various observations have prevailed with the High Court Peshawar in reversing the precision of the learned District Judge. The learned Judges have been impressed by the formula prepared on mutations by the learned Collector. According to the. Instructions of the Committee of Tarbela Dam Project only those mutations are to be taken, into consideration which have been attested on the basis of registered sale-deeds. The mutations relied upon by the District Judge appear suspicious being for the sale of kund type of land both differ as to the rate, the price recorded in one is Rs, 300 per Kanal whereas in the other it is Rs, 986 per Kanal. Before reliance by the learned District Judge the mutations ought to have been proved by the evidence of vendor/vendee in order to establish the bona fide nature of the sale effected thereby. These two mutations have been attested at a time when considerable land stands acquired for project in view of which the prices recorded therein may have been deliberately inflated as against the mutations relied upon by the learned Collector which run over a period of five years. 18. This decision is an authority on its own facts as they stand and the considerations which arise thereon. At least one footing is sure that sale mutations have been taken into account for working out com. Pensation. The mutation relied upon by the learned Civil Judge in the case in hand appears as based upon a registered deed. There is nothing suspicious on the face of the mutation and it is a timely one mutation. As to the proof of the contents by calling vendor and vendee in order to establish bona fide nature of the transaction, it may serve as an additional evidence but is not an essential requirement. According to elementary principle of law of evidence a transaction is to be presumed bona fide unless the contrary is proved. With respect it appears irreconcilable, if on one side the sale mutations are taken into consideration by the Collector/ simply enlisted after consulting the revenue payers and on the other hand to call for a proof of the contents to establish bona fide either by vendor/ vendee or both when relied upon by a party whose land has been7 8
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acquired. As to the last mentioned consideration in the above referred decision there is no correspondence of facts with the present case. 19. In Land Acquisition Collector II, Tarbela Dam Re-Settlement Organization WAPDA and others v. Haji Karim Khan and others the Collector Acquisition based his awards, subject-matter of two appeals, as to the market value of the land, on the basis of 23 sale mutations attested during the period of five years before the date of notification. The learned Additional District Judge on refeience modified the award by affording the compensation at double the rates as compared to the compensation awarded by the Collector. The learned Judge while doing so relied on the average of one year's mutations attested between 1st May, 1967 to 30th April, 1968 keeping in view the Presidential meeting's decision that the market value was to be assessed on the basis . Of one year average and the Collector had no option but to follow that decision. The High Court while disagreeing with the learned Additional District Judge has observed :- "But in this respect he seems to have been mistaken. It is common knowledge, of which we take judicial notice, that in regard to whatever land was intended to be acquired for Tarbela Dam Project two notifications were published under section 4 of the .Act on 3rd May, 1967 and 30th April, 1968. Assuming for a moment that the Collector was bound to follow the decision reached in the said Presidential meeting, he would still be required to apply his mind to each and every mutation recorded within the period 1st May, 1967 to 30th April, 1968 in order to ensure that the transactions recorded therein were bona fide and genuine. The fact, however, is that the bulk of these mutations were recorded after the publication of first notification under section 4 of the Act on 3rd May, 1967 when people in area had already known that their lands were likely to be acquired, and consequently it was the burden of respondents to prove that transactions recorded therein were bona fide. ' It is well-settled that the burden to prove their entitlement for higher compensation was on respondents. But they have not discharged this burden. The mere abduction of Exh. O. W. 1/1 in evidence was entirely insufficient. It was the burden of respondents to examine some of the parties to the sale transactions recorded therein. But admittedly they chose not to do so. And the presumption would, therefore, be that had they summoned some of the parties to these transactions, they would not have supported their ......... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ' But none of the parties to these transactions was produced to show as to why the land there had changed hands for abnormally high prices. The mutations recorded in Exh. O. W. 1/1 were not required to be taken into consideration for the purpose of ascertaining the market value of the land unless of course some of the parties to these transactions were produced in evidence to establish their bona fides." ' In both these decisions the opinion of the Court was expressed by the learned Chief Justice. The pattern of reasoning is more or less common in both the judgments. 20. The above said decision is an authority in keeping with the facts peculiar to the case. If the learned Judges have felt the necessity in the discharge of the burden for the respondents to have proved the bona fides of the transactions by producing the seller and the purchaser in the circumstances of the case it will not mean that an invariable rule has been laid down that in a case wherein the vendors/vendees have not been produced the mutations are to be turned down with an adverse presumption specifically so when on both the sides for ascertaining the market value the attested mutations as to sales have been arrayed simpliciter to furnish a standard for fixing the market value. 21. The learned counsel for the appellant has next contended that according to Local. Commissioner's report the land under acquisition continues to be an agricultural land. The learned counsel for respondent No, 1 has replied that the land in question is very fertile and is being put to raising vegetables, etc., with a situation as close to the city, is yielding much of profits and9
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according to the evidence of respondent No, 1 it has come to be surrounded by prominent localities whereby its, importance and potentiality has increased. The learned Land Acquisition Collector has admitted as to the main features of the land in his award. The learned Civil Judge has considered all the aspects in arriving at his finding. The learned counsel for respondent No, 1, has relied in this behalf on Government of West Pakistan v. Subedar Muhammad Hussain and others wherein it has been held that so far as the facts of the present cases are concerned, the acquisition is not under the Town Improvement Act, but under the Land Acquisition Act 1 of 1894 and the cases have therefore to be decided on the wording of section 23 of the said Act, in which there is no such restriction or limitation, and irrespective of the actual use of the land at the date of the expropriation, its potential value will have to be taken into account. 22. In Collector, Quetta-Pishin, Quetta v. Habib Ullah and 14 others it has been held that where the acquisition of land has to be made under the Land Acquisition Act. 1894, the compensation is to be assessed in accordance with the principles laid down under section 23 of this…
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