Malik MUHAMMAD YOUSAF Versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR
MOHAMMAD AZAM KHAN, C.J.--- The titled appeals under section 42(ii) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with Order XII of Supreme Court Rules, 1978, arise out of a common judgment of the High Court dated 24th May, 2014, whereby the appeals filed by Mallick Muhammad Yousaf and others and Arshad Mehmood and others have been accepted, whereas the appeal filed by WAPDA has been dismissed. Common question of law and the facts is involved in these appeals, therefore, these are being disposed of through consolidated judgment.
2. The background of all the appeals is, that the land of the appellants-landowners in Appeals Nos. 209 and 2010/2014, was acquired by the Collector Land Acquisition, Mangla Dam Raising Project, through Award No. 81/2007, drawn on 17th May, 2007. The Collector Land Acquisition assessed the compensation of the land @ Rs.6,00,000/ per kanal for its kind hail and Rs. 5,00,000/- per kanal for its kind Maira awal. Dissatisfied from the compensation assessed by the Collector Land Acquisiton, the appellants-landowners Arshad Mehmood and others and Mallick Muhammad Yousaf and others filed separate reference applications before the Collector Land Acquisition, Mangla Dam Raising Project, who referred the matter to the Reference Judge, Mangla Dam Raising Project. The appellant demanded the compensation at the rate of 5 million (5,00,00,00) rupees per kanal on the ground that the land is situate within the territorial limits of the Municipal Corporation, Mirpur and is at a 5 minutes' driving distance from the District Courts. The land is situate on the main Sangot road equipped with all basic civic amenities, like water, electricity, telephone, roads and schools etc and is adjacent to Sector C-4, Sector C-1 and Sector C-2 of Mirpur city. It was further alleged in the reference applications that the Deputy Commissioner/Collector District Mirpur issued notification for realization of duty under the Stamp Act, 1899 on 21st December, 2002, whereby for the purpose of realization of the stamps duty and registration fee, the price of the land is fixed @ Rs.1,10,000/- per marla. WAPDA failed to file written statement/objections while the Collector Mangla Dam Raising Project, in the written statement, admitted that the land is situate within the Municipal limits of Mirpur city. After necessary proceedings, the Reference Judge answered the reference in affirmative and enhanced the compensation from 6,00,000/- to Rs.7,00,000/- kanal for its kind hail and Rs. 5,00,000/- to 6,00,000/- per kanal for its kind Maira awal along with 15% compulsory acquisition charges. WAPDA as well as the land owners filed separate appeals in the High Court. A learned single Judge in the High Court, dismissed the appeal filed by WAPDA being filed incompetently, while the appeals filed by the appellants-landowners, Mallick Muhammad Yousaf and others and Arshad Mehmood and others, were accepted and the amount of compensation was enhanced to Rs. 800000/- per kanal along with 15% compulsory acquisition charges irrespective of the kinds of land through the impugned judgment and decrees on 24th May, 2014.
3. Mr. Javaid Najam us Saqib, Advocate, the counsel for the appellant, in appeal No. 216 of 2014, argued that the judgment of the High Court is against law and the record. The Collector Land Acquisition assessed the compensation in the light of sections 23 and 24 of the Land Acquisition Act, 1894. The Reference Judge and the High Court illegally enhanced the amount of compensation while relying upon sale-deeds i.e. Exh. "PG" and "PI". He submitted that the sale-deed, Exh. "PG" was registered on 12th December, 2003, two years prior to the issuance of notification under section 4 of the Land Acquisition Act, 1894. Through the sale-deed registered on 19th December, 2003, Exh."PG", 5 marla land was sold along with shops against a price of Rs.2,00,000/-, through sale-deed Exh. "PH", registered on 21st December, 2004, 1 kanal 5 marla land was sold against a price of Rs.6,50,000/-, through sale deed Exh."PI", registered on 21st December, 2004, 1 kanal land was sold against a price of Rs. 5,200,00. The sale-deeds registered two years prior to the notification under section 4 of the Land Acquisition Act, cannot be relied upon for determination of compensation. Moreover, the average price of these sale-deeds comes to very low. The appellants-landowners failed to produce any reliable evidence in the Reference Court. The judgments of the Reference Judge and the High Court are not maintainable. The learned counsel relied upon the cases reported as Land Acquisition Collector, Sargodha and another v. Muhammad Sultan and another (PLD 2014 SC 696) and Special Land Acquisition Officer v. Maharani Biswal and others (2012 SCMR 1179) and requested for acceptance of the appeal filed by Wapda and dismissal of other two appeals.
In the case titled Land Acquisition Collector, Sargodha and another v. Muhammad Sultan and another (PLD 2014 SC 696), the Supreme Court of Pakistan held that when the acquiring authority is proceeded ex-parte, then too, it is enjoined upon the petitioner to prove his case. It was further held that under Article 59 of Qanun-e-Shahadat Order, 1984, the opinion of an expert witness can only be relied if he is expert in the relevant field. The case relates to the market value of built up property, it is not relevant.
In the case reported as Special Land Acquisition Officer v. Maharani Biswal and others (2012 SCMR 1179), it was held by the Supreme Court of India that finding of the fact arrived at by the Reference Court could not be interfered with by the High Court on surmises and conjectures.
4. Mr. Arshad Mehmood Malick, Advocate, while arguing Appeals Nos. 209 and 210 of 2014 and in rebuttal of the arguments of the counsel for WAPDA, submitted that the acquired land is situate within the territorial limits of Municipal Corporation, Mirpur and is a valuable land. It is located on main Sangot road and has potential to be utilized for commercial purposes apart from agriculture and residential purposes. At present the prevailing prices of the land in the vicinity, are more than ten million rupees per kanal. The learned counsel submitted that the land from village Sangot was also acquired at the time of initial construction of Mangla Dam, and on that land Sector C-4 of Mirpur City was established. This land is also adjacent to Sector C-4, Sector C-1 and Sector C-2 of Mirpur City. The learned counsel argued that the Deputy Commissioner/Collector District, Mirpur, on 31st December, 2002 issued a notification i.e. Exh. "PJ", under section 27-A of the Stamp Act, 1899 for the purpose of levying the stamps duty and registration fee on the deeds, wherein the price of the residential land situated at village Sangot has been assessed @ Rs.1,10,000 per marla. The learned counsel submitted that the appellants-landowners were entitled for compensation at the rate of Rs.5,00,000,0/- per kanal. The appellants-landowners produced in evidence the sale-deeds, Exh. "PG", "PH", "PI", "PL" and "PP". The learned counsel submitted that the appellants-landowners produced witnesses in the trial Court, who stated that the land is situate on main road. It has potential to be utilized as commercial as well as the residential purposes. The learned counsel relied upon the judgment of this Court delivered in the case titled Ch. Muhammad Siddique Advocate and others v. Azad Government and others (Civil Appeal No. 25 of 2010, decided on 15.7.2011) He also relied upon the cases reported as Land Acquisition Collector and another v. Abdul Wahid Chaudhry and 3 others (2004 YLR 608), Akhtar Hussain and and 2 others v. Azad Government of the State of Jammu and Kashmir through its Chief Secretary, Muzaffarabad and 2 others (2014 MLD 179), Azad Govt. of the State of Jammu and Kashmir through its Chief Secretary, having his office at New Secretariat Complex Muzaffarabad and 7 others v. Sahibzada Raja Muhammad Hanif Khan and others 2013 YLR 969 and Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project, Zone-1 Mirpur and 2 others (2013 SCR 1224).
In the case reported as Land Acquisition Collector and another v. Abdul Wahid Chaudhry and 3 others (2004 YLR 608), the Lahore High Court observed that following are the plus and minus factors to be kept in mind while determining the compensation:--
"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 areas.
(2) Situation in the interior at a distance from 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.
Factors for determining the compensation vary from time to time, location to location keeping in view the use present and future, its vicinity and ambience. No fixed criteria exists and assessment of fair compensation is to be made objectively."
In the case reported as Akhtar Hussain and 2 others v. Azad Government of the State of Jammu and Kashmir through its Chief Secretary, Muzaffarabad and 2 others 2014 MLD 179, it was observed by this Court that the market value is not defined in Land Acquisition Act, 1894 and generally it means the price on which the owner is ready to sell his land and a willing buyer is ready to purchase voluntarily.
In the case reported as Azad Govt. of the State of Jammu and Kashmir through its Chief Secretary, having his office at New Secretariat Complex Muzaffarabad and 7 others v. Sahibzada Raja Muhammad Hanif Khan and others (2013 SCR 513), it was observed by this Court that the prime sole criteria for determination of compensation is the prevailing value of the property. It was further held that if the evidence remains un-rebutted, it is treated as sufficient proof.
In the case reported as Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project, Zone-1 Mirpur and 2 others (2013 SCR 1224), it was observed by this Court that while assessing the market value it shall not only to be considered that under what use the land is at present, but important factors which also need consideration is that in what use in future this land can reasonably be put.
5. We have heard the learned counsel for the parties and also perused the record. It is an admitted position that the land of the appellants-landowners in Appeals Nos.209 and 210 of 2014, was acquired through Award No. 81/2007 and it is also admitted by the parties that the land is situate within territorial limits of the Municipal Corporation, Mirpur. The Collector Land Acquisition observed in the award that the land is situate in the Municipal limits. It is highly precious land. No land is available for sale and the residents of the village are ready to purchase the land at any cost. We deem it proper to bring on record the observations recorded by the Collector Land Acquisition, which is as under:--
From the perusal of the above observations made by the Collector, it is evident that the land of the appellants-landowners is highly precious land. It is situate within the Municipal limits and it has also high potential for being utilized as agricultural land. The Collector observed that while assessing the amount of compensation all the factors indicated above have been considered but while assessing the compensation, the Collector Land Acquisition failed to consider all the factors i.e. the location of the land; the potential of the land for which it is being used; its use to which it can reasonably be put and assessed the compensation appears against the observations made by the Collector himself and the provisions of sections 23 and 24 of the Land Acquisition Act, 1894. The appellants-landowners demanded the amount of compensation @ Rs.5,00,000,0/- per kanal. The appellants-landowners have produced in evidence the copy of the sale-deed, Exh. "PG", registered on 19th December, 2003, copy of sale-deed, Exh."PH", registered on 21st December, 2004, copy of sale-deed, Exh."PI" registered on 21st December, 2004, copy of sale-deed registered on 6th February, 2006, Exh. "PL" and copy of sale-deed registered on 25th June, 2005, Exh. "PP". The appellants-landowners have also brought on record the copy of the notification Exh. "PJ", issued by the Collector under section 27-A of the Stamp Act, 1899, wherein the price of agricultural land of the village Sangot has been assessed @1,10,000/- per marla for realization of stamp duty and registration fee on the deeds. The appellants have also brought on record the copies of the transfer orders of the plots situate in Sector C-4, Exh. "PT", "PU", "PV", "PW" and "PX", whereby the plots measuring 1 kanal, 10 marla and 5 marla have been sold against a price of Rs. 8 million, 2.5 million, 4.8 million 4.8 million and 5.2 million, respectively. The appellants-landowners have also produced the witnesses i.e. Nazarat Hussain, Muhammad Shabbir, Tariq Mehmood. Arshad Mehmood, one of the appellants also appeared as a witness. They stated in their statements that the land is situate within the territorial limits of the Municipal Corporation. It is situate on the main Sangot road and adjacent to Sectors C-1, C-2 and C-4 of Mirpur City. The land has potential to be utilized for commercial purposes.
6. Notification under section 4 of the Land Acquisition Act, 1894 was issued on 27th January, 2005 and award of the land was issued on 17th May, 2007. The best method for determination of the market value of the land is to take into consideration the sale-deeds pertaining to the same village, which have been registered prior to the issuance of notification under section 4 or immediately thereafter. The reliance upon the sale-deeds registered during the period one year, prior to the issuance of notification under section 4 of the Land Acquisition Act, 1894 is not a sole criteria rather the sale-deeds registered after the issuance of the notification under section 4 of the Land Acquisition Act, 1894 are also relevant and the compensation has to be assessed in the light of the said sale-deeds. The market value of the land means the value of the land, on which a willing buyer is ready to purchase and a willing seller is ready to sell it. The appellants have proved that:--
(a) the land is situate within the territorial limits of the Municipal Corporation, Mirpur City;
(b) that the land is situate on main Sangot road adjacent to Sectors C-1, C-2 and C-4 of Mirpur City;
(c) that the land is a fertile land and is being utilized for agricultural purposes;
(d) that the land has potential to be utilized apart from agricultural purposes for residential as well as commercial purposes; and
(e) that after the acquisition of the land, the appellants-landowners have been deprived of the source of income.
The Collector has also admitted the above mentioned facts at the time of issuance of award. The perusal of sale-deeds Exh. "PL" and "PP" registered on 6th February, 2006 and 25th June, 2005, shows that the land measuring 1 kanal 2 marla and 12 marla has been sold against a price of Rs. 24,20,000/ 1,20,000/- and 12,00,000/-respectively. The average price of both the sale-deeds comes to 1,09,166/-per marla. Here we may observe that the sale-deeds relied upon by the appellants-landowners, are not the sale-deeds of large pieces of land rather through these sale-deeds small pieces of land have been sold. We cannot shut our eyes from the fact that the acquired land is situate within the municipal limits and large pieces of land are not available for sale, as is evident from the award that small pieces of land of the land owners have been acquired by the Collector. The land in District Mirpur was acquired for construction of Mangla Dam in decade of 60,s and at present the land owners own very small holdings. Like Punjab and Sindh, the land in large scale is not available even for agricultural purposes. After construction of Mangla Dam in the year 1960 the most of the area left out of the Mangal lake, is being used for residential purposes at Mirpur town, hemlets and villages. The Collector has himself observed that the land is not available for sale, the residents have strong purchasing power and they are not ready to sell the land and are ready to purchase the land at any price which anyone else demands. A perusal of award, itself shows that small pieces of land of the owners were acquired for Mangla Dam Raising Project, therefore, the argument that the sale-deeds of small pieces of land can not be relied upon, is not available. The sale-deeds of small pieces of land can validly be relied upon for determination of the market value for the purpose of determination of compensation.
7. We have also perused the notification i.e. Exh. "PJ" issued by the Collector, District Mirpur dated 31st December, 2002, wherein the valuation table prescribing values for different kinds of the land of different villages has been provided. Through the said notification the District Collector has fixed the price of agricultural land of village Sangot for the purpose of levying the stamp duty and registration fee on the deeds @ Rs.1,10,000/- per marla. The valuation table is being reproduced as under:--
This Court in a case titled Ch. Muhammad Siddique Advocate and others v. Azad Government and others (Civil Appeal No. 25 of 2010, decided on 15.7.2011) has declared that the valuation table is the best method for determination of the market value of the land. It was observed in para 9 as under:--
"9. The appellants have attached with their reference, a sale-deed, executed on 7.6.2000, through which 11 marlas of the land in village Ballah was sold at the price of Rs. 22.00.000/- per kanal. Another sale-deed executed on 4.2.2006, through which 2 kanal and 3-1/2 marlas land was sold at the price of 21,86,000/- per kanal. Another document, which is notification of Collector District Mirpur dated 31.12.2002, in which price of different lands has been shown through valuation table. As provided in the said notification, in village Ballah, the Agricultural land is valued at Rs. 1,10,000/- per marla, meaning hereby that the price of one kanal is valued at Rs. 22,00,000/- per kanal. Though the appellants have also filed a sale-deed of plot No. 13 measuring one kanal in Sector F-3 Mirpur, and price of the said land has been paid as Rs. 1,80,00,000/- per kanal. In our view. This sale-deed pertains to a developed sector of Mirpur city hence, it is not in comparison with the land situated in village Ballah though the said village is within the Municipal limits of Municipal Corporation Mirpur. We are of the considered view that the Collector, the learned Reference Judge and the learned Chief Justice of the High Court have not kept in view the market value of the land. Respondents herein, in Appeal No. 25 of 2010, who are appellants in Appeal No. 26 of 2010 have not produced any evidence, oral or documentary, whatsoever, before the learned Reference Judge."
Thus, for determination of the market value of the land the valuation table issued by the District Collector under the provisions of the Stamp Act, 1899 is a relevant document, which provides the value of agricultural land measuring one marla in village Sangot as Rs.1,10,000/- and two sale-deeds, Exh. "PL" and "PP" also provide the similar average value. In pursuance of the valuation table issued by the District Collector and the sale-deeds registered on 6th February, 2006 and 25th June, 2005, Exh. "PL & "PP" respectively, it is concluded that the market value of the land in village Sangot is the one which is fixed in the valuation table issued by the Collector, which comes to Rs.1,10,000/- per marla.
The result of the above discussion is that the appeal filed by the Wapda has no force, it is hereby dismissed, while Appeals Nos.209 of 2014 and 210 of 2014 are accepted. The appellants are entitled to the compensation of the acquired land at the rate of 1,10,000 per marla irrespective of its kind along with 15% compulsory acquisition charges. There will be no order as to the costs.
ZC/43/SC(AJ&K) Appeal allowed.