WAPDA through Chief Engineer, Mangla Dam Raising Project, WAPDA, Mangla Versus Sardar ASIF AYUB KHAN

MOHAMMAD AZAM KHAN, C.J.--- The titled appeals, with the leave of the Court, arise out of the consolidated judgment and decree of the High Court dated 24th February, 2010, whereby Appeal No.413/2008 and Appeal No.392/2008 were dismissed. Since both the appeals arise out of the same judgment, therefore, these are being disposed of through single judgment.

2. Facts necessary for the disposal of instant appeals are that the Collector Land Acquisition Mangla Dam Raising Project issued Award No.20/2006 on 12th August, 2006, whereby 56 residential plots, situate in Sector F/3, Parts II, III and IV, were acquired for two approach roads of new Mirpur city. These plots also included plot No.220-B which was allotted to the appellant, Sardar Asif Ayub Khan. The Collector Land Acquisition awarded compensation of one million rupees plus 15% compulsory acquisition charges to the appellant. Dissatisfied from the compensation, Sardar Asif Ayub Khan moved a reference application before the Collector Land Acquisition, who referred the matter to the Reference Judge Mangla Dam Raising Project on 19th January, 2007. The Reference Judge accepted the reference, enhanced the amount of compensation from one million rupees to 1.2 million rupees along with 15% compulsory acquisition charges. WAPDA and Sardar Asif Ayub Khan both challenged the judgment and decree of the Reference Judge by way of separate appeals in the High Court. A learned single Judge in the High Court through a consolidated judgment dismissed both the appeals vide impugned judgment on 24th February 2012.

3. Ch. Munsaf Dad, the learned counsel for WAPDA, argued that the judgment of the High Court as well as the Reference Judge is against law, facts and the record. The reference was filed beyond the period of limitation. The award was issued by the Collector on 12th August, 2006, whereas the reference was filed on 13th January, 2007, after a period of 5 months while the limitation for filing a reference under section 18 of the Land Acquisition Act, 1894 is six weeks. The attorney of Sardar Asif Ayub Khan admitted in the Court that a notice was served upon him. When the notice is served upon a person, whose land has been acquired, then the limitation shall start from the date of award. The learned counsel submitted that Sardar Asif Ayub Khan, for proving market value of the acquired land, has relied upon the orders of transfer of plots, issued by Mirpur Development Authority Mirpur (hereinafter to be referred as M.D.A.), whereby certain plots in the vicinity of plot No.220-B were sold. The orders for transfer of land/plots issued by M.D.A. are not admissible in evidence, thus Sardar Asif Ayub Khan failed to prove the market value of the acquired plot. Enhancement of compensation by the Reference Judge was not justified. The judgment of Reference Judge is against the facts and legal provisions and the learned single Judge in the High Court dismissed the appeal of the appellant while recording a telegraphic judgment without adverting to the facts and law. He requested for acceptance of appeal filed by WAPDA and dismissal of reference as well as the appeal filed by the other party.

4. While controverting the arguments, Mr. Muhammad Reaz Alam, the learned counsel for Sardar Asif Ayub Khan, argued that the judgment of the Reference Judge and that of the High Court to the extent of non-awarding of compensation to the tune of 8 million rupees is against law, facts and not maintainable. The learned counsel argued that the learned single Judge in the High Court has delivered a telegraphic judgment without adverting to the facts and law and dismissed the appeal of the appellant illegally while upholding the judgment of the Reference Judge. He submitted that the Reference Judge has observed that the contents of orders for transfer of plots issued by M.D.A. are not admissible in evidence and cannot be relied upon. The finding recorded by the Reference Judge is against the clear statutory provisions. Under section 39 of the Mirpur Development Authority Ordinance, 1974 (hereinafter to be referred as the M.D.A. Ordinance), M.D.A. has power to transfer land and proprietary rights and under section 45 of the aforesaid Ordinance, the record of M.D.A. falls in purview of public document and copies of record issued by the competent officer are admissible in evidence. M.D.A. Ordinance is a special law and its provisions override the general law. He referred to a case titled Azad Government and 3 others v. Genuine Rights Commission AJK and 7 others [1999 SCR 1]. He further argued that the compensation has to be paid according to the market value. The Collector Land Acquisition himself assessed the average market value of the plots and had to order for payment of same but he failed. He referred to a case titled Azad Government and 7 others v. Sahibzada Raja Muhammad Hanif Khan and 2 others [Civil Appeal No.116 of 2011 decided on 31.8.2012]. He further argued that the Collector Land Acquisition at one side has himself calculated the average price of acquired plot on the basis of market value of plots in the vicinity, while on the other side he has not awarded the same price. The Reference Judge and the learned single Judge in the High Court failed to consider the findings recorded by the Collector in true perspective. The learned counsel requested for acceptance of appeal filed by Sardar Asif Ayub Khan and payment of compensation to the tune of eight million rupees along with 15% compulsory acquisition charges. He also requested for dismissal of appeal filed by WAPDA and others. He argued that the reference was filed within time. The appellant was out of country. All the proceedings were initiated and completed in his absence. No notice under section 12 of the Land Acquisition Act was issued to him. When a notice under section 12 is not issued, then the reference can be filed within six months from the date of the Collector's award.

5. Ch. Muhammad Jamil, advocate, the learned counsel for Collector Land Acquisition, requested for dismissal of appeal filed by Sardar Asif Ayub Khan.

6. We have heard the learned counsel for the parties and perused the record. Firstly we will deal with the question of limitation. The learned counsel for WAPDA submitted that the award was issued on 12th August, 2006, while the reference application was filed before the Collector on 13th January, 2007 after a period of five months. The limitation for filing reference under section 18 of the Land Acquisition Act is six weeks, therefore the reference is time barred. We have perused the reference application filed before the Collector Land Acquisition. In para 6 of the same it has been specifically asserted that the applicant was out of country. Neither the Collector has issued him notice of award nor the service was effected upon him. All the proceedings have been taken in his absence and without his knowledge. He has come back a few days ago. He inquired from the authority about his plot whereupon it transpired that the plot has been affected due to Mangla Dam raising Project. After obtaining copies, he has filed the reference.

7. We have gone through the record of the Reference Judge. The reference is shown to have been filed before the Collector Land Acquisition on 13th January, 2007 and it was sent to Reference Judge on the same day, which was entered as file No.16/2007 on 19th January, 2007. The award was issued on 12th August, 2006, while the reference was filed on 13th January, 2007, after a period of five months. It may be observed that if a notice of award under section 12 of the Land Acquisition Act is not issued and served upon the interested person, then limitation for filing reference shall be reckoned from the date of knowledge and not from the date of award. Under proviso (b) to subsection (2) of section 18, the limitation shall be six months from the date of knowledge. Notice under section 12 is mandatory. If a notice under section 12(2) is not proved to have been issued and served upon the person interested, then limitation shall start from the date of knowledge. The proposition has been resolved by this Court in a case titled Azad Government of the State of Jammu and Kashmir and 2 others v. Muhammad Rafique Khan and 9 others [2009 CLC 1378] wherein it was observed as under:--

"... Section 12 of the Land Acquisition Act provides that if a person is not present at the time of announcing the award a notice shall be issued to him. If no notice is issued to affected person then how the limitation shall start from the date of award, the time shall start running against him from the date of knowledge.

11. The matter relating to limitation, where notice under section 12 of the Land Acquisition Act has not been served upon or the party was not before the Collector at the time of announcing the award, came before this Court in a reported case titled Muhammad Jan and 4 others v. Azad Government and 7 others [1996 CLC 1967] wherein it was observed as under:-

It was a legal requirement to serve a notice on the appellants under section 12 of the Land Acquisition Act. It is now well-settled that no adverse action can be taken against a person by keeping him in dark and in such situation in which a person is kept in dark about the proceeding or order limitation has to run from the date of knowledge. It has been held by the Supreme Court of Pakistan in Allahdino v. Fakir Muhammad (PLD 1969 SC 582) that in a case where a litigant is kept in dark about the fate of his case it is wrong to say that for a remedial action against it, as provided by law, time would start to run against him from the date of the order and not from the date when he comes to know about it. When this principle is kept in view there should be no hesitation in reaching the conclusion that the view taken by the Supreme Court of India in Raja Harish Chandra Raj Singh's case, mentioned above, is the correct view."

8. For determining the question that on which date Sardar Asif Ayub Khan, appellant, acquired knowledge of the award, we have perused the record with utmost care. In para 6 of the reference application he has not alleged the specific date as to when he acquired knowledge of award. He has only averred that he came back from abroad only a few days ago. Along with the reference application, he appended a certified copy of award obtained by him. A perusal of the same shows that he applied for obtaining copy of award on 18th October, 2006. The copy was issued to him on the same day. The award was issued on 12th August, 2006. Assuming for the sake of arguments that he acquired knowledge of award on 18th October, 2006 and he moved application on the same day for obtaining the copy, which was issued to him on the same day and 18th October, 2006 is presumed to be the date of his knowledge, then too he was entitled to file reference within six months under section 18 of the Land Acquisition Act 1894, up to 18th April, 2007. The reference has been filed within the period of limitation.

9. The Collector Land Acquisition Mangla Dam Raising Project issued award No.20/2006 on 12th August, 2006 in respect of 56 plots including plot No.220-B allotted to Sardar Asif Ayub Khan, appellant. The Collector has entered in the award that the Chief Engineer/Project Director Mangla Dam raising Project WAPDA has made a requisition under rule 3 of the Land Acquisition Rules, 1994, for the award of 56 residential plots for the purpose of construction of access points Nos.(i) and (ii) of new city, situate in Sector F/3, Parts II, III and IV, Mirpur Town. The Collector has observed that in the light of clause 3.2 of the agreement entered between the Government of Pakistan and WAPDA, the compensation of the acquired land shall be paid according to market value. The referred clause of agreement is as under:--

"Clause 3.2 . The WAPDA shall pay land compensation to the new affectees, at the market rate plus 15% compulsory acquisition charges in accordance with Land Acquisition Act, 1894 (Act 1 of 1894) as enforced in the territory of the Azad Government of the State of Jammu and Kashmir."

The plots in Mirpur town are allotted by M.D.A. under the provisions of the M.D.A. Ordinance. Under section 39 of the M.D.A. Ordinance, the authority may retain or may lease, sell, exchange, rent or otherwise transfer any land vested in it subject to such terms and conditions as it may impose in this behalf. The plots so allotted when sold are transferred by the Development Authority under section 39 of the M.D.A. Ordinance. In presence of section 39, the provisions of the Registration Act are not attracted. The record is maintained by the M.D.A. The Collector Land Acquisition for determining the average market value of the plots sold one year prior to issuance of notification under section 4 of the Land Acquisition Act, which was issued on 25th July, 2005, sought detail of plots sold during this period in the relevant sectors from M.D.A. After receiving the details of plots sold in Sector F/3, Parts-II and IV, he assessed the market value on the basis of price of these plots and fixed the compensation. The Collector assessed the compensation on the basis of record, i.e. the orders of transfer of plots in the said sectors maintained by M.D.A. The Reference Judge recorded contradictory findings. He decided issue No.III in favour of petitioner/appellant while observing that the plots have been acquired for the same purpose, i.e. construction of access point for new city. He observed that maximum compensation of the plot has been assessed as Rs.1,11,50,000/- and minimum has been assessed as Rs.10,00,000/- in the same sector by the Collector. It appears appropriate to reproduce the finding recorded by the Reference Judge:--

"A perusal of Exh. PAA manifests that keeping in view prices of plots Nos.18, 19, 29 and 32 sold in year 2004, the Collector worked out an average market price in sum of Rs.1,11,50,000/-. The learned Collector while acquiring the plot hand and sister-plots assessed its said similar price while referring its demerits as compared to other plots acquired for one and the same purpose. It may be noted that an approach road was intended to be constructed in the plots acquired through the award. The maximum price of the acquired plots was Rs.1,11,50,000/- whereas the minimum price of the acquired plots was Rs.10,00,000/-. In this way, there was a striking difference in prices of the plots acquired for one and the same purpose. Beside, the unrebutted oral account of the petitioner's agent was reflective of an anxiety in respect of inadequacy of impugned price. Hence, due to said reasons, this issue is determined in favour of the petitioner."

Despite the above observation the Reference Judge failed to maintain balance while accepting the reference. He enhanced the compensation to minimum value.

10. The appellant, Sardar Asif Ayub Khan, for proving the market value produced copy of transfer order of plot No.12-F, measuring 50' x 90', situate in sector F/3, Part-III, Ex.PA, which was transferred by M.D.A. on 20th October, 2005 against a price of 15 million rupees (Rs.1,50,00,000/-). The appellant also produced copies of orders of transfer of plots No.41, measuring 40x60, situate in Sector F/3, Part-III, transferred on 23rd June, 2006 and copy of transfer letter of plot No.12-L, measuring 50x90, situate in Sector F/3, Part-III, transferred on 9th April, 2006, which have been transferred against an amount of 7.5 million (Rs.75,00,000/-) and 9 million (Rs.90,00,000/-), respectively. The Reference Judge rejected the Ex.PB and PC on the ground that these transfers took place after issuance of notification under section 4 of the Land Acquisition Act, 1894, while he has not relied upon Ex.PA on the ground that no evidence was produced in respect of payment of price before M.D.A. authorities and the transfer order issued under section 39 of the M.D.A. Ordinance cannot be termed synonymous to a registered sale-deed within the meaning of section 54 of the Transfer of Property Act having a presumption of truth till its rebuttal. The learned Reference Judge further observed that Ex.PA cannot be relied upon as piece of evidence being confidence inspiring till its parties turn up in witness box to go through an ordeal of cross-examination germaning to fixation of its price and mode of its payment. The Ex.PA not bearing attestation of at least two witnesses cannot be held tantamount to a document as was postulated by Article 79 of Qanun-e-Shahadat Order, 1984. The learned Reference Judge also observed that a purchaser of a plot having manipulated with its vendor used to get recited an inflated consideration in its transfer instrument with an intention to capitalize its resale opportunity and there is no endorsement on the Ex.PA by its author to the effect that a speculated price was in fact paid up in his view as a sale-deed did have. The learned Reference Judge also observed that "now-a days the prices of land are looking up on the contrary in wake of a rampant inflation value of the currency plummeting in the Forex Market and the unrebutted solitary oral account of appellant's agent was reflective of the fact that the impugned price was inadequate. After observing this, the Collector enhanced the compensation from 1 million to 1.2 million rupees.

11. Important questions have been raised by the Reference Judge while observing that the transfer order issued by M.D.A. under section 39 of the M.D.A. Ordinance, contains no marginal witnesses, therefore, this cannot be relied upon under Article 79 of Qanun-e-Shahadat Order, 1984. The contents of transfer order are not admissible in evidence. These are not synonymous to a registered sale-deed within the meaning of section 54 of the Transfer of Property Act.

12. The allotments of plots in Mirpur town are governed by M.D.A. Ordinance. Under section 39 of the M.D.A. Ordinance, the authority has power to dispose of the land by lease, sale, exchange, rent or otherwise transfer any land vested in it. The certificate issued under section 39 of the M.D.A. Ordinance by the authority in respect of any lease, sale, exchange, or transfer of any piece of land shall be sufficient proof of title and shall be admissible in evidence. The plots allotted by M.D.A. are transferred under sections 39 of M.D.A. Ordinance read with Regulations 13 and 14 of the Mirpur Development Authority Regulations for Development and Disposal of Estates, 1977 (hereinafter to be referred as the Regulations). For proper appreciation of the law, section 39 of the M.D.A. Ordinance and Regulations 13 and 14 of the Regulations are reproduced hereunder:--

Section 39 of M.D.A. Ordinance.

"39. (1) The Authority may retain, or may lease, sale exchange, rent or otherwise transfer any land vested in it, subject to such terms and conditions as it may impose in this behalf;

(2) Notwithstanding anything contained in any other law for the time being in force a certificate of title issued by the Authority in respect of any lease, sale, exchange or transfer of any piece of land within specified areas shall be sufficient proof of the said title and shall be admissible in evidence of that title in any Court proceedings;

(3) The Authority may charge such fee for the issue of certificate of title under subsection (2) as it may fix from time to time with previous sanction of the Government."

Regulations 13 and 14 of the Regulations.

"13. Transfer of ownership.--- Any allotment of a plot or farm under the foregoing Regulations will only amount to an agreement to sell and the title to such a plot or farm will be transferred through a title certificate granted by the Authority, after fulfillment of conditions imposed by the Authority. Such a title certificate granted by the Authority shall be sufficient proof of ownership of the property in respect of which it has been issued.

14. Transfer of plots/farms.--- Sub-division, sale, transfer or exchange of any plot/farm or any portion thereof will not be affected by the allottee, lessee or vendee except with the permission of the Authority and subject to the transfer being registered by the Authority, on payment of fees to be prescribed by the Authority from time to time."

A perusal of section 39 of M.D.A. Ordinance and Regulations 13 and 14 of the Regulations makes it abundantly clear that certificate issued by the authority under section 39 in respect of any sale, lease or exchange or any other transfer is sufficient proof of title and such certificate is admissible in evidence. Since the plots are transferred under above referred section 39 and Regulations 13 and 14, the registration of transfer of plot under the Registration Act or sale-deed under section 54 of Transfer of Property Act is not required and is excluded. The proposition has been resolved by this Court in a case titled Muhammad Bashir v. Haji Muhammad Siddique and 5 others [PLD 1998 SC(AJ&K) 36]: While dilating upon the scope of section 39 of M.D.A. Ordinance and Regulations 13 and 14 of the Regulations it was observed in para 10 of the referred authority as under:--

"It may be observed here that under subsection (ii) of section 39 of the Ordinance, the certificate of title issued by the Authority in respect of any lease, sale, exchange or any transfer would be sufficient proof of the said title and such a certificate is admissible as evidence of the title in any proceedings in the Court. Thus, in view of the aforesaid provision, it cannot be said that the Exh.DB, the certificate of title issued by the Authority, does not confer any title to respondent No.1 because the same was not registered under the provisions of Registration Act. Under subsection (ii) of section 39 of the Ordinance, any provision contained in the law for the time being in force would not affect the validity of transaction if the same is in consonance with the provisions contained in section 39 of the Ordinance and the relevant Regulations. Thus, the aforesaid provision expressly excludes the application of the Registration Act or any other law for the time being in force to the cases of the transfer of title falling within the ambit of the Ordinance or the Regulations. We are also unable to subscribe to the argument advanced by the learned counsel for the appellant that the expression 'registered by the Authority' under Regulation 14 of the Regulations, implies the registration by the Authority under the Registration Act. It may be observed that the aforesaid expression cannot be taken to mean any such registration because in view of subsection (ii) of section 39 of the Ordinance, irrespective of the provisions in any other statute to the contrary, the title in the property would pass to the transferee if a certificate of title is issued by the Authority and the same would be sufficient proof for such title. Therefore, after the exclusion of the application of the provisions of Registration Act or Transfer of Property Act to the case in hand, it cannot be said by any stretch of imagination that the 'registration' envisaged under Regulation 14 would be the registration under the Registration Act. One of the dictionary meanings of the word 'register' are 'a written record or official list regularly kept'. Thus, in the instant case word 'register' in Regulation 14 would mean to maintain 'written record' and nothing more; it does not mean the registration of a document under the provision of Registration Act. Therefore, the contention of the learned counsel for the appellant that in view of the phraseology employed in Regulation 14, Exh.DB should have been registered under the Registration Act is not tenable and is hereby repelled."

The above view was reiterated in another case titled Ch. Liaqat Ali v. Mirza Abdul Aziz and 3 others [2001 CLC 1502] where the scope of section 39 of the Ordinance and Regulations 13 and 14 of the Regulations has been discussed and rule of law laid down in Muhammad Bashir's case, referred to above, has been affirmed. It was observed as under:--

"The aforesaid provisions of law show that under subsection (2) of section 39 of the M.D.A. Act, certificate of title issued by the Authority in respect of any lease, sale, exchange or any transfer established a sufficient proof of the said title and such a certificate is admissible as evidence of that title for any proceedings in the Court. Thus in view of the aforesaid provisions contained in subsection (2) of section 39 of the M.D.A. Act, 1974, and rules 13 and 14 of the M.D.A. Regulations for Development and Disposal of Estates, 1977, it cannot be said that the certificate issued by the Authority does not create any title in favour of appellant."

13. Under section 42-B of the AJ&K Interim Constitution Act, 1974, any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Azad Jammu and Kashmir. The above referred judgments were binding on the Reference Judge and the learned single Judge in the High Court, but it appears that the judgments were not brought in their notice. The transfer order of a plot issued by M.D.A. under section 39 of M.D.A. Ordinance read with Regulations 13 and 14 of the Regulations is admissible in evidence and the findings recorded by the Reference Judge are not sustainable.

14. The proposition can be looked from another angle. Under section 45 of the M.D.A. Ordinance any order passed by M.D.A. be admissible in evidence of existence of the document or entry and shall be admitted as evidence of the matter. We deem it appropriate to reproduce the same:--

"45. Admissibility of document or entry as evidence.--- A copy of any receipt, application, plan, notice, order or other document or of any entry in a register, in the possession of the Authority shall, if duly certified by the legal keeper thereof or other person authorized by the Authority in this behalf, be admissible in evidence of the existence of the document or entry, and shall be admitted as evidence of the matters and transactions therein recorded in every case where, and to the same extent to which, the original document or entry would if produced, have been admissible to prove such matters."

A bare reading of section 45 of M.D.A. Ordinance makes it manifestly clear that a copy of any receipt, application, plan, notice order or other document or of any entry in a register in possession of authority, if duly certified by the legal keeper thereof or other person authorised by the authority in this behalf, be admissible in evidence of the existence of document, or entry and shall be admitted as evidence of the matters and transactions recorded therein in every case. The provision refers, apart from other things, to the words "order or other document". The transfer order issued under section 39 and Regulations 13 and 14 of the Regulations is an order and also comes within the definition of document which is in possession of the authority. Section 45 further provides that a copy of document duly certified by a legal keeper shall be admissible in evidence in respect of existence of such document or entry and the matters and transactions therein. It is manifest that a certified copy of document or order or entry which is part of record of M.D.A. is admissible in evidence. The copy is admissible to the extent to which the original document, if produced, should have been admissible.

15. The learned Reference Judge has observed that the transfer order, Ex.PA, does not bear the names or signatures of marginal witnesses, therefore, it is not admissible in evidence under Article 79 of Qanun-e Shahadat Order, 1984. The learned Reference Judge has not applied the law correctly. An order of transfer of a plot passed under section 39 of M.D.A. Ordinance read with Regulations 13 and 14 of the Regulations is a public document admissible in evidence and order issued under section 39 needs no registration under the Registration Act. Article 79 of Qanun-e-Shahadat Order postulates that a document, if required by law to be attested, it shall not be used as evidence unless two attesting witnesses have been called for the purpose of proving its execution. The provisions of Article 79 (corresponding section 68 of the Evidence Act, 1872) apply in those cases where there is a dispute regarding execution of a document between its maker and the person in whose favour it purports to have been executed. In a case titled Muhammad Rafiq v. Muhammad Zahur Nasir etc. [PLD 1956 (W.P.) Lahore 354] it was observed as under:--

"Lastly, the scope of the provisions of section 68 of the Evidence Act has also been completely misunderstood by the Courts below. According to the proviso to this section, if the execution of a registered document is denied by its maker, then alone it is necessary to prove it by the evidence of one of the attesting witnesses; otherwise such a document is exempt from the scope of the main section. This would show that the provisions of section 68 will apply to those cases only in which the dispute regarding the execution of the document is between the maker of the document and the person in whose favour it purports to have been executed."

The document Ex.PA is a transfer order in respect of a plot. The plot has been transferred in the name of Raja Noor Dad and sold by Muhammad Moazzam, who had also purchased the same plot. The transfer order issued by the Authority need not be attested by the witnesses. Article 79 of Qanun-e-Shahadat Order has no bearing on an order of transfer of plot issued under section 39 of M.D.A. Ordinance, 1974.

16. There is another aspect that the Collector Land Acquisition for calculating the market value of the plots which were being acquired for access points Nos.(i) and (ii) for new Mirpur city has relied upon the orders of transfer of plots issued by M.D.A. under section 39 within a period of one year prior to issuance of notification under section 4. The Collector Land Acquisition has himself relied upon these transfer orders for calculating the market value and WAPDA has accepted the same. After accepting the same, the doctrine of estoppel applies and WAPDA cannot turn round and take position that reliance cannot be placed on the transfer orders issued by M.D.A under section 39.

17. Under section 23 of the Land Acquisition Act the amount of compensation in respect of acquired land shall be determined by the Court while taking into consideration the market value of the land prevailing at the date of publication of notification under section 4 and the damage sustained by person interested at the time of taking possession. Market value can be termed as the value of land on which the owner is ready to sell his land to a willing buyer voluntarily against the price of his choice. The market value of the land varies from place to place and average market price is calculated while keeping in view the sale of land in the vicinity. If a land is acquired from a village, the average sale price entered in the sale-deed, executed shortly before or after the notification under section 4, can be considered for determining market value and if there is no sale-deed in the same village, then the sale-deeds executed registered in the adjacent villages can be made basis for calculating compensation. The Supreme Court of Pakistan in a case titled Fazal-ur-Rehman and others v. General Manager S.I.D.B. and another [PLD 1986 SC 158] observed as under:--

"....... 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 compunction even relying upon the oral testimony with respect to the 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 price of the land in question, because of the prevalent tendency that in order to save money on the purchase 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 determining the price of the land intended to be acquired."

The Supreme Court of India in a case titled Jogendra Nath Chatterjee and others v. State of West Bengal [AIR 1971 Calcutta 458] held as under:--

"12. 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 the same land or portion of it near about the date of notification under section 4(i) 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 determined 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."

Similarly in a case titled Mst. Khatu and 2 others v. Barrage Mukhtiarkar, Thatta [PLD 1977 Kar. 203] it was held as under:--

"......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 possess in the hands of the owners....."

This Court in a case titled Akhtar Hussain and 2 others v. Azad Government of the State of Jammu and Kashmir and 2 others [Civil Appeal No.1 of 2008 decided on 8.5.2012] has observed as under:--

"10. The survey of case law referred to above shows that the market value shall be assessed after analyzing all the material and evidence available on the point and determining the price which a willing purchaser will pay to a willing seller of the acquired land. The Court shall take into consideration the market value and the loss by reason of severing such land from the other land. The best method of determination of the market price of the land under the acquisition process is to rely on the instances of sale of it near about the date of notification under section 4(i) of the Land Acquisition Act. The next best method is to take into consideration the instances of sale of the adjacent land made shortly before and after the notification. No doubt, for determining the market value, classification or nature of the land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits. For determining the market value the measure of fair compensation is the value of property in the open market. 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."

Similarly in another case of this Court titled Azad Government and 7 others v. Sahibzada Raja Muhammad Hanif Khan and 2 others [Civil Appeal No.116 of 2011 decided on 31.8.2012] has observed as under:--

"18. Another aspect of the matter is that keeping in view the overall scheme of law dealing with the position of property, what would be the prime sole criteria for determining the compensation. According to the centuries old celebrated principle of law, if it could be summarized in one word, it is prevailing value of the property."

19. While dealing with the question of market value, in a case titled District Welfare Officer, Guntur v. Pillala-marri Ramakrishna Somayajuly and others, reported as AIR 1963 Andra Pradesh 328 it is observed as under:-

'.....The compensation must be determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser. The best evidence to prove what a willing purchaser would pay for the land under acquisition would be the evidence of genuine sales effected at or about the time of the notification for acquisition either in respect of the land or any portion thereof of the sale of lands precisely parallel in all its circumstances to the land under compulsory acquisition. The onus of proving the value of land acquired lies upon the claimant and to establish the value and selling prices of neighbouring lands, it is necessary for him to adduce numerous or at least sufficiently numerous instances of sales of land in similar condition and use for similar purposes in the neighbourhood.'

Whereas while dealing with the question of market value, in a case titled Azad Government and others v. Muhammad Anwar Shah, reported as [2000 SCR 391], following three cases have been referred:-

'In case reported as West Pakistan WAPDA v. Mst. Hiran Begum [1972 SCMR 138], it has been held that the best guide to fix the market value of the land is the price on which the lands were sold in the adjoining village.

In case reported as District Welfare Officer, Guntur v. Pillala-marri Ramakrishna Somayajuly and others [AIR 1963 Andra Pradesh 328], it was held that while dealing with the market value of the land the considerations envisaged under section 23(1) of the Land Acquisition should be kept in mind and those stipulated under section 24 of the said Act must be excluded from consideration.

In case reported as Deputy Commissioner Karachi v. Abu Bakar and others [PLD 1972 Karachi 128], it has been held that the price fetched by sale of the adjoining land closest in point of time to the notification issued under sections 4 and 6 of the Land Acquisition Act would furnish a reliable guide for determining the market value of the suit land.'

We have also benefitted from the wisdom of a scholarly judgment of the apex Court of Pakistan handed down in Sindh Bench, in the case titled Province of Sindh through Collector of District Dadu and others v. Ramzan and others, reported as [PLD 2004 Supreme Court 512], in which the question of market value, especially with reference to acquisition of land has been discussed in detail. Relevant paragraphs 9 and 10 of the judgment are reproduced below:-

'9. This Court had also taken notice of the fact that the announcement of award is some times unreasonably delayed after the issuance of Notification under section 4 of the Act. In Malik Aman's case, the period that had elapsed was seven years. Obviously any escalation in the value of property during such period is a potential value of land which must be taken into consideration.

10. Similar view was taken by this Court in Land Acquisition Collector Abbottabad v. Muhammad Iqbal (1992 SCMR 1245 at 1255- K). In the case of Pakistan Burmah Shell (1993 SCMR 1700), it was once again reiterated that consideration of market value at the time of Notification under section 4 of the Land Acquisition Act was merely one of the modes for ascertaining the market value and was not absolute yardstick for assessment of compensation. Numerous matters to be considered for determining compensation were elaborately laid down by this Court in Murad Khan's case (1999 SCMR 1647) which was again relied upon in Nisar Ahmed's case (PLD 2002 SC 25). The crux of the matter is that mere classification or nature of land may be taken as relevant consideration but not as absolute one. An area may be 'banjar' or 'Barani' but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits. All these factors, therefore, cannot be ignored.'

20. In view of the peculiar facts of this case, the respondent has brought on record un-rebutted piece of evidence regarding market value of the land situated in adjoining villages. According to one sale-deed executed at the nearest time of the notification under section 4 of the Act, the acquired land was sold for a consideration of Rs.300,000/- per marla whereas through another sale-deed which has been tendered in evidence, the price of one marla land is mentioned as Rs.1,50,000/-."

18. The plot, which is the subject of appeal, was not situated in a village, rather in a city, which was allotted by M.D.A. The record of transfer of plots in Mirpur city is maintained by the M.D.A. The Collector Land Acquisition sought details of plots transferred within a period of one year prior to the issuance of notification under section 4 from the M.D.A. He has produced the detail of plots Nos.32 and 29, in Sector F/3, Part-IV and plots Nos.19 and 18, in Sector F/3, Part II, which were sold/transferred. He calculated the average price of these plots, which were sold during 2004, as Rs.1,11,50,000/- per plot. In another set of plots in Sector F/3, Part IV, plots Nos.37 and 28, while in Sector F/3, Part II, plots Nos.18 and 21 were sold in year 2005. He calculated the average price amounting to Rs.1,45,00,000/- per plot. On the basis of sale of plots made in year 2004, the Collector has assessed the compensation to the tune of the following:

As is evident from the chart shown above, the Collector assessed per plot compensation of different plots as Rs.1,11,50,000/-, Rs.28,00,000/-, Rs.28,00,000/- and Rs.25,00,000/- according to different sizes of plots.

19. In respect of plots being acquired for access point (ii) which includes plot No.220-B the Collector sought detail of plots sold and transferred from M.D.A. Detail is provided at page 3 of the award which is as under:--

After receiving detail of transferred plots measuring 40' x 60' the Collector calculated the average price amounting to Rs. 34,60,000. No average price of plots measuring 45 x 100 or 50 x 90 was calculated. In the light of said criterion the Collector fixed the following prices for different plots:-

A perusal of the referred chart shows that the Collector has assessed the compensation of five million rupees each in respect of five plots measuring 40x60, three million rupees each in respect of 9 plots of 40x60, 2.5 million rupees each in respect of 4 plots measuring 40x60, 1.3 million rupees each in respect of 11 plots measuring 25x50 and 1 million rupee in respect of 8 plots measuring 50x90 which includes plot No.220-B. The Collector has not recorded any reason for awarding lesser compensation for different sizes of plots. We are not concerned with all the plots mentioned in the above referred chart. We have to deal with plot No.220-B which is subject of instant appeal. The Collector himself calculated the average price of the plots measuring 40x60 as Rs.34,60,000/- but instead of awarding the same compensation, while applying different criteria he has awarded compensation of five million rupees for some plots, 3 million rupees, 2.5 million rupees for other plots and even 1.3 million rupees for plots having size of 25x50, but he has assessed compensation of 1 million rupees for the plot measuring 50x90. The Collector has not applied a uniform criterion for awarding compensation in respect of plots of same size and nature. It is true that the value of every plot cannot be the same. In respect of some plots, the Collector has observed that these are near to main road and plain and for those plots he has assessed compensation to the tune of Rs.1,11,50,000/- but while dealing with access point (ii), the Collector has calculated the average price of plot measuring 40x60 as Rs.34,60,000/-, but he awarded five million rupees for some plots and 1 million rupees in respect of plot in dispute which measures 50x90, larger in size as compared to other plots. The Collector has accepted the transfer orders of plots issued by M.D.A. and price entered therein. It was enjoined upon the Collector to apply uniform criterion for assessing the market value of same type of plots located at the same place. He failed to assign reason for awarding lesser compensation of plot No.220-B. The learned Reference Judge has observed that "unrebutted account of petitioner's agent was reflective of the fact that the impugned price was inadequate". After observing the same, he enhanced the compensation only to the tune of Rs.2,00,000/. He has assigned no reason for awarding lesser compensation.

20. We have reached the conclusion that Ex.PA, transfer letter of a plot measuring 50x90, situate in Sector F/3, Part-III, is a copy of public document issued under section 39 of M.D.A. Ordinance read with Regulations 13 and 14 of the Regulations and it is admissible in evidence. It can be relied upon. The plot is shown to have been sold against a price of Rs.15 million. The question arises whether the aforesaid plot and plot No.220-B are of similar value? The attorney of the appellant, Sardar Asif Ayub Khan, stated in his statement that the prices of plots in the Sector vary from Rs.7.5 million to Rs.15 million. He has claimed compensation of plot to the tune of Rs.8 million. The appellant, apart from Ex.PA, has filed Ex.PB, copy of order of transfer of plot measuring 60x40, situate in Sector F/3, Part-III, which has been sold against a price of Rs.7.5 million, Ex.PC, copy of order of transfer of a plot measuring 50x90, situate in Sector F/3, Part-III, which is shown to have been sold against a price of Rs.9 million. Both these plots have been sold in April and June, 2006 after the issuance of notification under section 4. The Reference Judge has not relied upon them. The aforesaid documents can be relied upon in the light of case law referred to in para 17 of this judgment.

21. The Collector in the award has observed that 8 plots bearing Nos.220-A, 220-B, 220-C, 220-S, 220-V, 220-T, 211-L and 220-C/1 are such plots which have been allotted in additional scheme. He has assessed the price of one million rupee for all these plots. The size of all the plots is 50x90 on the spot, while the appellant, Sardar Asif Ayub Khan, claims his plot of the size of 45x100. The area of 50x90 comes to 4500 square feet, while that of 45x100 also comes to 4500 square feet. There is no difference in total area of the plot, mentioned by the Collector, and the appellant. It appears that the Collector has although assigned no reason for awarding lesser compensation of all these plots, but the note endorsed by him that these plots are of additional scheme is indicative of the mind of Collector. He considered it a reason for awarding lesser compensation. It is evident that all 39 plots have been awarded for access point No.(ii) and these are adjacent plots. The Collector has kept huge difference in compensation, which is not reasonable. The appellant was entitled for compensation in relation to ratio determined by the Collector himself that an average price of plot of 40x60 comes to Rs.34,60,000/-, which comes to Rs.1,441/- per square feet. The area of plot of appellant comes to 4500 square feet and in the light of average price calculated by the Collector when 4500 square feet is multiplied with the amount of Rs.1,441/-, the total amount comes to Rs.64,84,500/-, which is less than 50% of the sale price mentioned in Ex.PA. The learned Reference Judge committed an error while not relying upon Ex.PA. The appellant is entitled to compensation of Rs.64,84,500/- along with 15% compulsory acquisition charges on the basis of average price calculated by the Collector Land Acquisition.

22. The result of above discussion is that Civil Appeal No. 90 of 2012, filed by Sardar Asif Ayub, is accepted. The appellant is entitled to compensation as indicated in preceding para. Civil Appeal No.28 of 2010 filed by WAPDA is dismissed. There shall be no order as to costs.

ZC/21/SC(AJ&K) Appeal allowed.