' M. JAVED BUTTAR, J.---The Government of Punjab and the Military Estate Officer, Sargodha, through this appeal, assailed the order dated 17-5-1993, passed by the Senior Civil Judge, Mianwali, whereby the reference petition of the appellants (Reference No.2 of 1988) under section 18(3) of the Land Acquisition Act, 1894, assailing the compensation awarded by the Land Acquisition Collector, Mianwali, through his Award No.3, dated 26-8-1987 (Exh.A.4), was dismissed on merits as well as on the ground that Provincial Government had no authority to institute the reference petition.
2. The relevant facts are that the land in dispute measuring 198 Kanals, 4 Marlas situated in village Watta Khel, Tehsil and District Mianwali, owned by respondents Nos.2 to 92 was compulsorily acquired for defence purposes, for the benefit of P.A.F. Base, Mianwali. Notification No.L.II.518/320/DR A under. Section 4 of the Land Acquisition Act, 1894 (Exh.A.16) was issued by the Collector, Mianwali District on 14-2-1981. The Land Acquisition Collector, Mianwali, on the basis of recommendations made by the District Collector on 29-2-1984, the Commissioner, Sargodha Division, Sargodha on 16-8-1984 and the Board of Revenue, Punjab, on 29-7-1986, vide his Award No.3, dated 26-8-1987 (Exh.A.4) determined the compensation and announce the award as required under section 11 of the Land Acquisition Act, as under:-- ' Nehri-Nul Chahi: Rs.8410/- per Kanal 15% compulsory acquisition charges were also awarded.
3. The appellants, through the aforesaid Reference Petition, assailed the rate of compensation determined by the Land Acquisition Collector alleging that the same was not based on the average price prevailing one year prior to the issuance of notification under section 4 of the Land Acquisition Act, 1894; that the acquiring department deposited the amount of compensation at the rate of Rs.1500 per Kanal in the office of the Land Acquisition Collector, as approved by the D.C./Collector and the Land Acquisition Collector suo motu moved for the enhancement of rate of compensation, which amount to reviewing the rate of compensation already determined by the District Collector, hence, the Award as announced by the Land Acquisition Collector, was liable to be set aside. The petition was resisted by some of the respondents through separate written statements and some were proceeded ex parte.
4. The learned trial Court framed the follow..
(1) The application is time-
(2) Nether the reference has not been properly filed? OPR
(3) Whether the petitioner is estopped by words and conduct from filing this reference? OPR
(4) Whether the price/compensation of the acquired land in question has not been properly assessed? OPA
(5) Relief.
5. The appellants produced A.W. I , Abdul Rashid Khan, H.C. From the office of A.C., Mianwali. In his statement he showed his inability to state whether the land in dispute at the time of its first demarcation was within the MUnicipal limits of Mianwali or not. He stated in his cross-examination that he does not know that in the year 1981 the land in dispute was urban in character. He also showed his ignorance regarding location of the land in dispute.
' The appellants also produced in evidence the following documents:-- ' Exh.A.1 Copy of letter from Commissioner, Sargodha Division, Sargodha to Deputy Commissioner, Mianwali dated 1-10-1981.
' Exh.A.2 Copy of letter No.LM/118/II/36 from Military Estate Office, Sargodha Circle, Sargodha to the Commissioner, Sargodha Division, Sargodha dated 21-3-1984.' ' ' '
' Exh.A.14 Copy of Mutation No.1189, attested on 13-6-1987 showing sale of land measuring 10 Marlas in the Mauza for a consideration of Rs.35.000.
' Exh.A.15 Copy of Mutation No.1197, attested on 29-9-1987 showing sale of land measuring 7 Kanals in the Mauza for a consideration of Rs.210,000.
' Exh.A.16 Copy of Notification No.L.II.518/ 320/DRA, dated 14-2-1981, under section 4 of the Land Acquisition Act, 1894.
' Exh.A.I7 Copy of Notification No.3568/REV dated 2-6-1981, under section 17 of the Land Acquisition Act, 1894.
' Exh.A.3 Copy of objections under sections 9/10 of the Land Acquisition Act, 1894 dated 9-7-1987.
' Exh.A.4 Copy of Award No.3 of 1987, dated 26-8-1987.
' Exh.A.5 Copy of Notification No.711/62, published in Gazette of Pakistan.
' Exh.A.6 Copy of Notification S.R.O. No.341(I)/86, dated 3-4-1986.
' Exh.A.7 Copy of Notification S.R.O. No.889(I)/86, dated 2-10-1979.
' Exh.A.8 Copy of letter No.AIR/HQ/5504/3, dated 30-6-1988.
' Exh.A.10 Copy of letter of Ministry of Defence No.1/8/LH/MI&C/88/G, dated 3-7-1988.
' Exh. A .11Copy of corrigendum dated 21-7-1988 issued by Ministry of Defence regarding letter No.1/8/ LH/MI&C/88/G, dated 3-7-1988. Corrigendum No . L-351-491 /3517/ ' REV, dated 9-8-1982.
6. The respondents on the other hand produced R.W.1, Niaz Ali Khan, on 9-12-1992. He stated that the land in dispute was situated at a distance of two furlongs from outer limits of Municipal Committee, Mianwali; that at the time of its acquisition the price of land was Rs.30,000 to Rs.50,000 per Kanal; and that the land could be used for residential purposes. In his cross-examination he stated that the land in question was situated at Multan-Mianwali Road.
7. They also produced the following documentary evidence:-- ' Exh.R.I Copy of Mutation No.1090, attested on 28-9-1986 showing sale of land measuring 1 Kanal in the Mauza for a consideration of Rs.25,000.
' Exh.A.11 Copy of site-plan under section 3 of the Land Acquisition Act, 1894.
' Exh.A.12 Not produced. It being the same document as Exh.A.7, was omitted from documentary' evidence.
' Exh.A.13 Copy of Mutation No.I187, attested ' Exh.R.II on 4-5-1987 showing sale of land measuring 2 Kanals in the Mauza for a consideration of Rs.70,000.
' Copy of Mutation No.1150, attested on 14-3-1987 showing sale of land measuring 1 Kanal in the Mauza for a consideration of Rs.35,000.
' Copy of Mutation No.1172, attested on 14-4-1987 showing sale of land measuring 1 Kanal in the Mauza for a consideration of Rs.30,000 ' Exh.R.IV Copy of Aks Shijra.
8. The learned trial Court, on the basis of the evidence produced by the parties and after hearing the learned counsel for the parties, as mentioned above, dismissed the appellant's petition.
9. We have heard the learned counsel for the appellants and respondents 42 and 43. None has turned up for the remaining respondents. They are proceeded ex parte.
10. It is submitted by the learned counsel for the appellants that the learned trial Court acted illegally in holding that the appellants had no authority to assail the quantum. Of compensation fixed by the Land Acquisition Collector; it is settled law that the agency which has to pay the compensation has a right to challenge the quantum of compensation fixed by the Land Acquisition Collector. Reliance in this regard is placed on judgment dated 18-2-1991 passed by the Honourable Supreme Court (Appellate Jurisdiction) in Shariat Appeal No.7 of 1989 whereby the appeal against the judgment dated 30-3-1980 of the Federal Shariat Court in Shariat Petitions Nos.6/1 of 1988, was dismissed, directing the amendments before 30th September, 1991. In the said case the Federal Shariat Court after examining the provisions of sections 18(3), 22-A and 54 of the Land Acquisition Act, 1894 directed that necessary amendments may be made in these provisions. The operative part of the judgment of the Supreme Court (Appellate Jurisdiction) is as follows:-- "No doubt land under the land Acquisition Act is acquired and the payment of its price has to be made either by agreement with the seller or according to the price determined by the Land Acquisition Collector. The Land Acquisition Collector is generally an employee of the Provincial Government. Despite that the law gives a right to the Provincial Government to file reference, cross-objections or appeal against the award or decree. However, if the acquisition is to be made for `the Federal Government or its department or for department of Provincial Government or a company or a local authority and they have not accepted the award they have not been given any of the above rights through it is their funds which are directly involved. This unequal treatment is obviously unjust and in violation of the Holy Quran and Sunnah of the Holy Prophet (Peace be upon him).
' For the aforesaid reasons we declare that omission to give right of making reference, filing cross- objections and appeal to the Federal Government or to the department of the Federal Government or of the Provincial Government or a company or a local authority for whose benefit land is acquired in sections 18(3), (4), 22-A and 54 of the Land Acquisition Act, 1894 as well as depriving a company or a local authority of the right of appeal in proviso to section 50(2) of the Act are repugnant to the injunctions of Islam. "
11. Learned counsel for the appellants has also placed his reliance on WAPDA v. Major Ata Muhammad Khan and,8 others 1993 SCM R 181 in which it was held that although the land was acquired for WAPDA but since the dissatisfaction with the award as that of Provincial Government, which was competent to file and agitate against the award and as such there was no defect in the appeal filed by the Provincial Government before the High Court and the High Court erred in finding that the Provincial Government was incompetent to file the appeal. The case was remanded to High Court for decision on merits.
12. In view of the above mentioned we hold that petition under section 18(3) of the Land Acquisition Act, 1894 instituted by the Provincial Government through Collector, Mianwali before the Referee Court was competent and the learned Referee Court acted illegally in holding otherwise.
13. As regards the merits of the case, learned counsel for the appellants has submitted that the learned Land Acquisition Collector acted illegally in recommending the review of the rate of compensation of Rs.1500 per Kanal fixed by the District Collector previously and that the rate of compensation as determined by the Land Acquisition Collector, in his award dated 26-8-1987 is excessive and is not in accordance with the market rate. It is submitted that the market value of the land in dispute was not the one which was determined by the Land Acquisition Collector.
14. We find no merit in the arguments of the learned counsel for the appellants, in this regard. It was for the appellants to prove through evidence that the rate of compensation fixed and determined by the Land Acquisition Collector, was in excess of the market value. The appellants did not produce any evidence in this regard. The deposition of their sole witness, A.W.1, Abdul Rashid Khan, Head Clerk from the office of the Collector, is of no help to the appellants. He, as mentioned above, pleaded ignorance in regard to the location and market value of the land in dispute.
' The appellants' witness in the connected Reference No.01 of 1988 (subject matter of connected R.F.A. No.241 of 1993) admitted that the P.A.F. Colony was in existence in the year 1980, and that the said colony is situated in Mauza Watta Khel, in which the land in dispute is situated. This shows that the land in dispute had the potential of becoming urban in character or may be it had already acquired the urban character. The appellants did not produce the evidence of sale transaction entered into between the parties immediately before the issuance of notification under section 4 of the Land Acquisition Act, 1894. Had the price determined by the Land Acquisition Collector been excessive, appellants would have produced the aforementioned evidence. Although that too, would not have been conclusive evidence of the market value because in the present case, notification under section 4 of the Land Acquisition Act, 1894 was issued by the Collector, Mianwali District on 14-2-1981 but the award in question was announced on 26-8-1987, i.e. More than six years after the issuance of notification under section 4 of the Land Acquisition Act, 1894. The copies of three mutations (Exhibits A.13, A.14 and A.15) produced by the appellants B do not, in any way, support the stand of appellants. They pertain to the period when award was announced and sale price mentioned therein is far greater than the one awarded by the Land Acquisition Collector. The Courts can take notice of the long delay in the announcement of the Award. Similarly, the three sale Mutations (Exh.R.1, Exh.R.2 and Exh.R.3) produced by the respondents show per Kanal price, at the time of announcement of award, to be much greater than the one determined by the Land Acquisition Collector. The argument of the learned counsel for the appellants that the Land Acquisition Collector reviewed the rate of compensation previously determined and he had no power of review, has no merit. Land Acquisition Collector did not review any of his previous determinations and he announced only one single Award. His recommendations against the rate of compensation of Rs.1500 per Kanal fixed by the District Collector cannot be treated as a review because ultimately the market value was to be determined by the Land Acquisition Collector. He considered the case and recommended to the District Collector for reconsideration of the estimate cost. The District Collector, Mianwali agreed with the proposal made by .The Land Acquisition Collector and recommended the case to the Board of Revenue, Punjab through Commissioner, Sargodha Division, Sargodha, vide his Memo. No.376/DRA, dated 29-2-1984. The Commissioner, Sargodha Division, Sargodha, vide Endst. No.1/351- 35(1V)/14572/Rev., dated 16-8-1984 agreed with the proposal and forwarded it to the Board of Revenue, Punjab for approval and the Board of Revenue, Punjab accepted the proposal, vide its Memo. Dated 29-7-1987.
15. We have perused the Award (Exh.A.4). The learned Land Acquisition Collector has taken all the necessary legal precautions in determining the market value of the land in dispute and we do not find any illegality in the same: The appellants have failed to establish through evidence that the market value as determined by the Land Acquisition Collector was incorrect or excessive.
16. In view of the above mentioned, B we see no merit in this appeal, which is accordingly dismissed. The parties are, however, left to bear their own costs.