MAQSOOD BIBI Versus COLLECTOR LAND ACQUISITION, MANGLA DAM RAISING PROJECT, MIRPUR (ZONE-I)
1. RAJA SAEED AKRAM KHAN, J.--- Through supra titled appeal, the validity of the judgment and decree passed by the High Court on 31.3.2011, has been challenged, whereby appeal filed by the appellants was dismissed.
2. The relevant facts culminating into this appeal are that the land in the ownership of the appellants was acquired for Mangla Dam Raising Project through award No. 154 dated 7.1.2008. Feeling dissatisfied from the compensation awarded by the Collector, Land Acquisition, the appellants filed a reference under section 18 of the Land Acquisition Act. The Collector, Land Acquisition, referred the matter to the Reference Judge. The Reference Judge enhanced the compensation amount in the following terms:--
2. Hail Rs. 5,50,000/- from Rs. 5,00,000/- per kanal
3. Maira awal Rs.4,90,000/- from Rs.4,50,000/- per kanal
4. Maira doem Rs.4,30,000/- from Rs.4,00000/- per kanal
5. Banjar qadim Rs.1,70,000/- from Rs.1,50000/- per kanal
6. Ghair Mumkin Rs.1,10,000/- from Rs.1,00, 000/- per kanal
7. Deegar ghair Rs.6,60,000/- from Rs. 6,00, 000/- per kanal mumkin
8. Feeling dissatisfied, both the parties filed appeals in the High Court. The appellants, herein, filed appeal for enhancement of the compensation whereas the WAPDA filed appeal for the reduction of compensation amount enhanced by the Reference Judge. The High Court dismissed both the appeals vide impugned judgment and decree dated 31.3.2011 which is the subject-matter of the instant appeal.
3. Raja Hassan Akhtar, Advocate, the learned counsel for the appellants, has argued that the judgment of the High Court is against law and facts of the case. The High Court failed to take into consideration that inadequate compensation was awarded to the appellants by the Collector, Land Acquisition, and the Reference Judge has also enhanced the compensation inadequately which was upheld vide impugned judgment by the High Court while ignoring the fact that a valuable land was acquired for the Mangla Dam Raising Project. He strongly argued that the High Court failed to examine that the Collector, Land Acquisition, himself assessed the market value of the land while relying on the sale-deeds executed within 12 months prior to the issuance of notification under section 4 of the Land Acquisition Act but while awarding the compensation, he has totally ignored the compensation assessed by himself. The learned counsel further urged that the learned High Court as well as the Reference Judge totally overlooked the record of the case while enhancing the compensation at very low rates. Both the Courts below have not taken into consideration that no reason has been assigned by the Collector, Land Acquisition, while awarding the compensation less than the amount assessed by him. He has argued that the High Court erred in law while observing that it was the duty of the appellants to prove the market value of the land whereas, the fact of the matter is that the Collector, Land Acquisition, while assessing the compensation has considered and accepted the market value of the land of the adjacent villages as correct but has not awarded the same. The High Court, while dismissing the appeal, has not taken the notice of the fact that the Reference Judge, at one hand has held that the appellants have led evidence which remains un-rebutted but on the other hand he refused to award the compensation as prayed for by the appellants. The learned counsel for the appellants further submitted that the High Court also ignored the fact that the Reference Judge, in his judgment, admitted that the Collector, Land Acquisition, while assessing the compensation, has rightly considered the market value of adjacent village, Chakswari, but in spite of this fact, has not awarded the same. He lastly argued that it is the matter of record that the real son of one of the appellants, who appeared in the Court, has claimed that the market value of the land in question is not less than Rs. 50,00,000/- per kanal. It is also the part of the record that he was not cross-examined on this point but this aspect of the case has been totally ignored by the High Court while delivering the impugned judgment.
4. On the other hand, Mr. Zakria Bhatti and Ch. Muhammad Jamil, Advocate, the learned counsel for the respondents, while controverting the arguments advanced by the learned counsel for the appellants, raised two preliminary objections, i.e., (i) that the reference was hopelessly time-barred; and (ii) that insufficient court fee was affixed on the memo of appeal, therefore, the appeal is liable to be dismissed on these two grounds. On merits, the learned counsel have submitted that there are concurrent findings of two Courts below, which cannot be interfered with by this Court as there is no misreading or non-reading of evidence on the record. Both the Courts below have resolved the controversy in a comprehensive manner, therefore, no interference is warranted under law by this Court.
5. We have considered the respective arguments of the learned counsel for both the parties and also perused the record and the impugned judgment. Before proceeding further, we would like to deal with the preliminary objections. The first objection is that the reference was hopelessly time-barred. We have examined the concise statements submitted by both the learned counsel for the respondents. A perusal of the same reveals that no point of limitation has been specifically taken by them in their concise statements, therefore, they cannot be allowed to raise a point which has not been taken in the concise statement at the stage of hearing of the appeal. It is now settled that a point which has neither been taken in the memorandum of appeal nor in the concise statement, that cannot be raised at the time of hearing of the appeal. Reliance can be placed on a case reported as Azad Govt. of the State of Jammu and Kashmir through its Chief Secretary, and 4 others v. Syed Muhammad Akbar Shah [1996 PLC (C.S.) 838], wherein it has been observed as under:--
9. "23. It was half heartedly argued by the learned counsel, Sardar Rafique Mahmood Khan, that the appeal was not maintainable on behalf of the Government, which is appellant No. 1 in the appeal, on the ground that the Chief Secretary was not authorised to institute the appeal on behalf of the Government. This point was not raised in the concise statement and, according to the practice of this Court, cannot be allowed to be raised for the first time during the arguments and that too without moving an application seeking permission to raise the point."
10. In another case titled Dr. Kh. Mushtaq Ahmad v. Azad Government and 3 others [2000 PLC (C.S.) 2], it has been held by this Court:--
11. "9. The point urged by the appellant that on 15th May, 1998 respondent No. 4 was not holding the post of Planning Officer when he was promoted and therefore could not be considered for promotion is an altogether a new point which was not raised even in the concise statement. Therefore he could not be allowed to raise this point for the first time during re-hearing of the case on a limited point......."
12. Similarly, in another case reported as Abdul Shah v. Rehabilitation Department [1992 SCR 269], following observations have been made:--
13. "....... In the first place, it may be observed that the point has never been taken either in the memorandum of appeal or in the concise statement filed by the appellant and as such cannot be allowed to be raised for the first time in the arguments. ...."
14. Even otherwise, both the Courts below have dealt this point competently. Therefore, the contention of the learned counsel for the respondents that the reference entailed dismissal as being time-barred has no force and is hereby repelled.
6. The next objection raised by the learned counsel for the respondents is with regard to the filing of court fee. It was contended that insufficient court fee has been affixed on the memo of appeal/petition for leave to appeal. At the very outset, the learned counsel for the appellants submitted that he is ready to make up the deficiency and later on it was informed by the office that the requisite deficiency in the court fee has been made up. Even otherwise, where whole or any part of any court fee prescribed for any document by law for the time being in force, had not been paid, the Court could, in its discretion, at any stage allow party to pay the whole or any part of such court fee. We are fortified in our view by a case reported as Muhammad Sarwar Khan v. Said Hussain Khan [PLD 2007 SC(AJ&K) 1], in which it was observed as under:--
15. "8. It would also not be out of place to mention here that when any plaint or documents are presented to a Court of law, then it is the duty of the staff of the Court to examine the documents and ensure whether these are properly stamped according to the provisions of Court Fees Act. A party should not be penalized for the negligence of his counsel or staff of the Court because the Court Fees Act is a taxing statute, which would be interpreted in favour of subject........."
16. It was further observed in the above referred case at page 7 of the judgment as under:--
17. "10. The plain reading of the Court Fees Act clearly conveys, that the basic intention of the Legislature and the purpose for the enactment of the Court Fees Act was to recover the revenue and not to penalize the litigant public for non-compliance of any provision of the Court Fees Act. It is also settled principle of law that the provisions of Court Fees Act and other fiscal statutes were to be construed strictly in favour of subject because the basic object of all these statutes is to secure revenue for the benefit of the State and not to harm the litigant with the weapon of technicality."
18. Again in paragraphs 11 and 12 of the aforesaid judgment, following observation have been made:--
19. "11. It is important to note that the provisions of Court Fees Act itself clearly reveal that the basic object of provisions of Court Fees Act was to recover the court-fee and not to penalize the party. Sections 10 and 28 of the Court Fees Act are very much clear. ..........
12. The aforesaid provisions of Court Fees Act clearly convey that where court-fee is not paid in whole or in part, the party should not be penalized simply for the reason that the court-fee has not been paid. A chance should be provided to party for making up the deficiency or for payment of court-fee and the Court should take it liberally instead of penalizing the parties. The basic object of these provisions is to recover the revenue and not to penalize on technical grounds."
7. In view of the case law referred to above, we are fully convinced that after making up the deficiency in court fee, the objection raised by the learned counsel for the respondents is no more available and the same stands repelled.
8. Now we come to the real question as to whether the Collector, Land Acquisition, has rightly assessed the market value of the land acquired, and if so, whether he was justified in not awarding the compensation in accordance with the market value assessed by him. Under section 23 of the Land Acquisition Act, while determining the amount of compensation to be awarded for the land acquired, the Court shall take into consideration the market value of the land at the date of the publication of the notification under section 4, subsection (1) of the Land Acquisition Act. Whether the Collector, Land Acquisition, has rightly adopted the mode of assessment of market value when no precedent/sale-deed was executed in the area from where the land was acquired. Admittedly, there is no denial in this case that no sale-deed was executed in the area 12 months prior to the date of issuance of notification under section 4 of the Land Acquisition Act. The proper course for the Collector, Land Acquisition, was to consider the sale-deeds executed in adjacent area. The Collector, Land Acquisition has done so and considered the sale-deeds executed in the contiguous and adjoining area which was the right mode to determine the market value of the land. The claim of the appellants was that the market value of their land is not less than Rs. 50,00,000/-per kanal. In this regard, the real son of one of the appellants appeared before the Reference Judge and made a statement that the market value of the land acquired is not less than Rs. 50,00,000/- per kanal and the other side neither cross-examined him on this point nor any suggestion was made that the land is not of such value as claimed by him. The difficulty arose in assessing the market value when no sale-deed was available of the area from which the land was acquired. In such like situations, the guidelines given by this Court in a case reported as Government of Pakistan v. Hamid Akhtar [PLD 1988 SC(AJ&K) 6] should be kept in mind while determining the market value of the land intended to be acquired. It has been observed at page 9 as under:--
20. "The Collector and the Court are vested with discretion to assess the amount of compensation by following fair and equitable methods. The well recognized methods evolved to determine the market value of land, rest on the following:--
(i) recent or nearest sales of part of the land under acquisition;
(ii) recent sales of similar land in the vicinity of adjoining localities;
(iii) capitalization of net profits or average rental values;
(iv) capitalization of land revenue; and
(v) opinion of experts or evaluators.
21. We are alive to the fact that no two prices of land can be exactly equal and similar in all conditions. When different data is available, it is desirable to take all or at least two of aforesaid methods of evaluation to arrive at a fairly correct decision. We have described various methods in order of priority. Price previously paid for the portion of the same land affords comparatively the best material to determine market value. Second best evidence is the price of neighbouring lands possessing similar advantages. Nearest sales to land in the vicinity equally afford correct method of valuation."
22. In an unreported case titled Azad Govt. and others v. Sahibzada Raja Muhammad Hanif Khan and others [Civil Appeal No. 116 of 2011 decided on 31.8.2012], it was observed by this Court as under:--
23. "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/-."
24. In another unreported case titled Muhammad Mehrban v. WAPDA and others [Civil Appeal No. 98 of 2011, decided on 4.3.2013] it has been observed as under:--
25. "6. Sections 23 and 24 of the Land Acquisition Act are relevant for determining the compensation to be awarded for the land acquired. The best evidence in determining the compensation can be the sale-deeds executed in the village, but when there is no sale-deed executed in that village, the sale-deeds executed in the adjacent villages can be relied upon by the Collector for determining the compensation......."
26. From Pakistan jurisdiction, the Supreme Court of Pakistan in a case reported as Fazalur Rahman and others v. General Manager, S.I.D.B. and another [PLD 1986 SC 158], has observed at page 161 as under:--
27. "....... It could hardly be the only reason for determining the compensation amount. There are other factors which have to be taken into consideration e.g. the land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, but also by reference to the uses to which it is reasonably capable of being put in the future; and market-value is the potential value of the property at the time of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time......."
28. Again at page 161, it was further observed:--
29. "I respectfully agree with the observa tions of my learned brother Mr. Justice Burhanuddin Khan (with which Mr. Justice M. A. Zullah has concurred) that-- 'there are other factors which have to be taken into consideration (while determining the value of the land to be acquired) e.g. the land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, but also by a reference to the uses to which it is reasonably capable of being put in future; and the market value is the potential value of the property at the time of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time.'
30. I may add that this salutary principle is often ignored by the functionaries of the Government while assessing the amount of compensation to be awarded to the persons whose land is compulsorily acquired. The principle that the use to which the land is capable of being put, to the advantage of the owner, is a factor which ought to be considered by the assessing authority, has been enunciated in a number of cases."
31. At page 162 of the above referred judgment, it was observed as under:--
32. "I would, therefore, like to emphasize that 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 a 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 on relying upon the oral testimony with respect to the market value of the property intended to be acquired, because even while deciding cases involving questions 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.'
33. In another case reported as Land Acquisition Collector, Tarbela Dam and others v. Muhammad Ashraf Khan and 3 others [PLD 1989 SC 589], wherein it has been observed as under:--
34. "While hearing another set of appeals regarding compensation under the Land Acquisition Act an important question had arisen; whether, different awards of compensation for the same village or for similar land in contiguous and adjoining villages could not be made basis for determining the otherwise difficult appeal cases of compensation. In one case for example on account of established vast scale tampering with the records, no alternative was left at all with the High Court except to rely upon the final awards regarding adjoining villages.
35. We have given in some detail the background and the proceedings held in the lower Courts as well as in this Court with the purpose of highlighting the dangers of relying on the so-called final awards regarding similar land in the same village or in adjoining villages, except of course in very rare cases like the one where the record was tampered with on a large scale. The question of finality of award in this context would depend upon the circumstances of each case for example in the case of village 'Thapla', as is obvious from the foregoing narrative, the compensation at the rate of more than Rs. 10,000 per kanal could not at all be treated as basis and precedent for enhancement of other awards."
36. Similarly in a case titled Malik Aman and others v. Land Acquisition Collector and others [PLD 1988 SC 32] it has been observed as under:--
37. "Although market value of the land is normally to be taken as existing on the date of publication of Notification under section 4(i) of the Act, yet it is common knowledge that for determining the market value the Courts often look at the prices on which similar lands were sold during the preceding 12 months, and similarly in other cases factors bearing on the value of the same land in future e.g. the 'potential value' of the property are also taken into consideration."
38. Again in paragraph 7 of the report it has been held as under:-
39. "In the present case which is identical to the case of Sub. Haider Zaman v. Government of N.-W.F.P. 1987 SCMR 465 the petitioners has not brought any evidence on the record to show as to how much prices of the land in question had arisen during the 7 years taken by the Collector in announcing the award. As such, we have no basis for determining the amount of increase in the compensation to which the petitioners are entitled. Had such evidence been brought on the record by the petitioners we are sure that the learned Collector himself or, in any case, the learned trial Court and the High Court would have taken this factor into consideration while determining the market value of the land for the purpose of awarding compensation to the petitioners. But since such evidence is not available on the record we have no option but to dismiss the petitions, which are consequently dismissed."
40. In a case reported as Land Acquisition Collector and others v. Hikmat Khan and others [1982 SCMR 1019] it was observed as under:--
41. "...... The main reason which prevailed with the learned Judges in the High Court for refusing to interfere in the assessment of the amount of compensation made by the learned Additional District Judge may be stated in the words of their Lordships as follows:
42. We are now left with the market value of the property. The learned Judge has observed and this has not been controverted that in the village in which the property is situate no sale had taken place prior to the publication of the notification under section 4 of the Land Acquisition Act. It was, therefore, difficult for the learned Judge to find out as to what was the market value of different types of land in this village. However, the learned Judge took into consideration the prices fixed by him in the adjacent village Topi in different cases, the decisions of which have become final. It was on the basis of the market value of the village Topi that the learned Judge passed the decree. The learned Advocate-General has not been able to point out as to what other method could, in the circumstances of the case, be adopted for assessing the market value of different types of land. He has not brought to our notice any judgment of the High Court in which the prices in village Topi as fixed by the Judge had ever been challenged.'
43. Chaudhry Akhtar Ali, learned Advocate-on-Record appearing in support of the petition submits that the learned Judges have failed to appreciate that the market value of the lands taken into consideration relates to the period after the issue of the notification under section 4 of the Act and that value could not be made the basis of the compensation.
44. This point was not even raised before the High Court, and the learned counsel was not even able to show that evidence with regard to market value of the lands before the notification was issued was brought on record.
45. There is, therefore, no merit in the plea advanced by the learned counsel in support of the petition, and it is, accordingly, dismissed in limine."
46. It is crystal clear from the case law referred to above, that the Collector, Land Acquisition, has rightly adopted the mode of determination of market value of the land acquired, as no sale took place in the village from where the land was acquired.
9. While adverting to the finding given by the Collector, Land Acquisition, it may be observed that it is also evident from the record that different kinds of land was acquired and the Collector, Land Acquisition, determined the market value of the land according to its classification. It would be appropriate to reproduce the relevant paragraphs of the award which read as under:--
47. 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, 1984 (Act I of 1894) as enforced in the territory of the Azad Government of the State of Jammu and Kashmir.
48. After going through the above paragraphs of the award, it reveals that the Collector, Land Acquisition, was satisfied that the value of the acquired land, was not less than Rs. 20,95,238/- per kanal, maira awal, Rs. 4,23,823/- per kanal, banjar qadim, and Rs. 11,02,040/- per kanal, ghair mumkin. The reasoning assigned by the Collector, Land Acquisition, in awarding the compensation according to his own assessment that most of the land which was sold in the adjacent village Chakswari was for the purpose of construction of the residential houses. But surprisingly the aspect of this case is that no such specific survey numbers have been mentioned which were sold for the above purpose. The finding has been given merely on presumption which is not supported by any evidence. In our estimation, such like findings, which are based on imaginations/presumptions, are not sustainable in the eye of law. Therefore, in our opinion, when the Collector, Land Acquisition, came to the conclusion that the market value of the land acquired is not less than the price mentioned in the above referred paragraphs on the basis of the sale-deeds executed in the adjacent village, there was no justification for the Collector, Land Acquisition, to deprive the land owners of the adequate compensation. The learned Reference Judge, while deciding the reference, has also failed to take into consideration the principles laid down by the superior Courts, referred to above, and failed to award the compensation on the basis of assessment made by the Collector, Land Acquisition which was correctly assessed by him. All these factors have not been kept in mind by the High Court while dismissing the appeal.
10. In view of what has been discussed above, we have observed that the Collector, Land Acquisition, who himself assessed the market value of the land and came to the conclusion that the market value of the land in question is not less than the market value mentioned in the above referred paragraphs of award, there was no justification to deviate from his own finding. The reasoning assigned by the Collector, Land Acquisition, is not convincing.
49. Resultantly, while accepting this appeal, the judgment and decree dated 31.3.2011 passed by the High Court are set aside and while modifying the award, it is ordered that compensation shall be paid to the land owners according to the assessment made by the Collector, Land Acquisition, in the following terms:--
1. Maira awal Rs. 20,95,238/- per kanal;
2. Banjar qadim, Rs. 4,23,823/- per kanal; and
3. Ghair mumkin Rs. 11,02,040/- per kanal.
50. The land owners shall also be entitled to 15% compulsory acquisition charges.
51. Thus we order accordingly.
52. ZC/3-SC(AJ&K) Appeal allowe