' MUHAMMAD AKHTAR SHABBIR, J.---This judgment will dispose of R.F.A. No.198 of 1998 and R.F.A. No. 200 of 1998 as common question of law and facts is involved and directed against the judgment and decree, dated 24-2-1998 passed in References Nos. 1/LA and 2/LA of 1992.
2. The appellants in both the above-mentioned appeals were the owners of certain land situated in Khewat No.509 Village Faizpur Khurd, Tehsil Ferozewala District Sheikhupura. The lands of the appellants had been acquired for construction of Lahore Islamabad Motorway Project by National Highway Authority. The compensation was awarded to the appellants/owners as Rs.12,500 per Kanal. The compensation of Leechi and Guava trees was fixed as Rs.6,000 and Rs.4,000 per tree respectively by the Collector. The appellants feeling dissatisfied with the compensation, awarded by Land Acquisition Collector, applied for forwarding their references under section 18 of the Land Acquisition Act to the Civil Court for determining the appropriate compensation for their acquired properties and trees. The learned Referee Court/ Senior Civil Judge, Sheikhupura enhanced the compensation price of land from Rs.12,500 per Kanal to Rs.16,000 per Kanal along with 15% compulsory Acquisition allowance. With this modification, the learned Referee Court disposed of the references vide his order, dated 24-2-1998. The orders of the Referee Court have been assailed through the instant R. F . As .
3. Learned counsel for the appellants has attacked upon the order passed by the learned Referee Court by contending that the Collector while counting the trees standing on the lands of the appellants had not issued notices to them and has also not fixed the prices of the trees adequately; that price of the trees offered by the Acquiring Agency had not been accepted by the Collector; that the acquired land of the appellants was situated on road-side and the front portion of the acquired land of the appellant had potential value. The Collector as well as the Referee Court while determining the compensation of the acquired land had not taken into the consideration the criteria as laid down by the superior Courts; that one year average sale-price is not essential requirement of law.
4. On the other hand, the arguments of learned counsel for the appellants have vehemently been opposed by the learned counsel for the respondents and supported the judgments/orders of the Land Acquisition Collector as well as the Referee Court/Senior Civil Judge.
5. We have considered the arguments of the learned counsel for the parties and perused the record with their kind assistance.
6. The Land Acquisition Collector has awarded Rs.6,000 and Rs.4,000 for the compensation of leechi and guava trees which was affirmed by the learned Senior Civil Judge. The formula for evaluating value of fruit trees has been given in the Land Acquisition Manual on the basis of net income of trees per year. The owners of the land have neither led any evidence with regard to relevant points nor any information is available on the record by the experts. P.W.4 Ch. Noor Muhammad, Horticulturist of Ayub Agricultural Development Authority, Faisalabad has also not deposed even a single word about yearly income of the fruits. He admitted that he was not in a position to tell age and income of the leechi trees.
The statement of this expert was unsatisfactory and the learned lower Court has rightly observed that the appellants have failed to establish number of trees as well as the income of the fruit trees.
7. The question of valuing the land having fruit bearing trees had been discussed in case of Land Acquisition Officer, Lower Sindh Barrage, Hyderabad v. Kamber Ali Beg represented by Legal Heirs (1981 CLC 556). In dealing with this question, the Hon'ble Judges of the Karachi High Court have observed that in case of land which is covered by trees, the market value should be determined for the land including trees as a whole and not by valuing the trees separately from the land for the land covered with trees cannot yield any usufruct independent of usufruct of the trees, and without trees such a land will have very little value. In section 3(a) of the Act, the land has been defined as under:-- "the expression "land" includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth".
' It means that if the separate compensation of the trees is not granted, the land would be valued having fruit trees. In the instant case, separate compensation of the fruit trees has been determined by the Referee Court.
8. Section 23(1) of the Land Acquisition Act, 1894 has provided criteria for determination of compensation of the acquired land and the Court while- taking into consideration the amount of compensation to be awarded/paid to the landowners shall take into consideration:-- ' Firstly: the market value of the land of the date of publication of the notification under section 4, subsection (1); ' Secondly: the damage sustained by the person interested by reasons of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; ' Thirdly: the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reasons of serving such other land; ' Fourthly: the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reasons of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earning; ' Fifthly: if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and ' Sixthly: the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of Collector's taking possession of the land.
' In addition to the market value of the land as above provided, the Court shall award a sum of fifteen per centum on such market value, in consideration of compulsory nature of the acquisition, if the acquisition has been made for a public purpose and a sum of twenty five per . Centum on such market value if the acquisition has been made for a Company.
9. As to the arguments of learned counsel for the appellants that the sale-price offered by the Acquiring Agency for fruit trees was not accepted by the Collector, the answer would be that only the Collector is competent to determine the compensation of the property and the land is acquired through the acquisition proceedings and it was not the case of negotiation between the landowners and the acquiring agency. If the price offered by the Acquiring Agency is not accepted by the Collector, he had committed no illegality. The contention of the learned counsel for the appellants being misconceived is repelled.
10. Admittedly the land of the appellants had been acquired for construction of Lahore Islamabad Motorway Project and there is no denial to the fact that the land was acquired for public purpose.
Superior Courts have laid down the criteria/formula for determining the compensation. One of the factors for determining market value would be the date of notification under section 4 Land Acquisition Act, 1894-Market value had often been described as what a willing purchaser would pay to the willing seller-In assessing market value of the land, its location, potentiality and the price evidenced by the transactions of similar land at the time of notification would be the factors to be kept in view---One year's average of the sales taking place before the publication of the notification under section 4 of Land Acquisition Act, 1894, of similar land was merely of the modes for ascertaining the market value and was not an absolute yardstick for assessm ent. Reference in this context can be placed to the case of Pakistan Burmashell Ltd. v.
Province of N.-W.F.P. And others (1993 SCM R 1700). In another case titled as Province of Punjab through Collector, Bahawalpur and others v. Col. Abdul Majeed and others (1997 SCM R 1692), the Hon'ble Judges of the Supreme Court of Pakistan has laid down the following principle of law for assessing the future prospects of the land acquired under the Land Acquisition Act, 1894 in terms of section 23:--
(i) That an entry in the Revenue Record as to the nature of the land may not be conclusive. For example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable for becoming Chahi land.
(ii) That while determining the potentials of the land, the use of which the land is capable of being put, ought to be empowered.
(iii) That the market value of the land is normally to be taken as existing on the date of publication of the notification under section 4(1) of the Act but for determining the same, the price on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years back may be considered including other factors like potential value etc. ' The same principle was further followed by the Hon'ble Supreme Court in case of Province of Punjab through Collector, Attock v. Engr. Jamil Ahmad Malik and others (2000 SCM R 870). In other case titled as Muhammad Saeed and others v. Collector Land Acquisition and others (2002 SCM R 407), it has been observed that while determining amount of compensation, Court is to consider evidence brought on the record by the parties and further Land Acquisition Collector while determining compensation of acquired land has also to consider the potentiality and further prospective of land in addition to one year average.
10-A. In the instant case, the learned Referee Court clearly observed that the appellants have failed to produce any sale-deed or mutation in respect of Khewat No.509 in which acquired land is situated and they have also not produced average sale-price of the Mauza at the time of relevant time. It was the legal obligation upon the appellants to produce that what was fair market price of the land at the time of issuing of notification under section 4 of the Land Acquisition Act. They have only produced copy of different mutations and sale-deeds. The notification under section 4 of the Land Acquisition Act has been issued on 10-4-1991.
11. The unique feature of the case is that the Referee Court has categorically observed that the appellants have failed to produce any sale-deed or mutation with regard to Khewat No.509 in which the acquired land is situated. The appellants have not produced the average sale price of the Mauza at the relevant time. Despite the said observation the learned Civil Judge has enhanced the compensation of the land of the appellants from Rs.12,500 to Rs.16,000 per Kanal. According to his observation, there was no evidence on the record to substantiate the case of the appellants.
The learned lower Court has not justified that on which evidence and material, he has determined and enhanced the compensation from Rs.12,500 to Rs.16,000 per Kanal. This aspect of the case has invited us to interfere with the impugned order passed by the Referee Court, determining the price contrary to the dictum laid down in the above referred cases by the superior Courts. We find that the judgment and decree of the lower Appellate Court is not sustainable in law, which is set aside.
Resultantly, these appeals are accepted. The cases are remanded to the Referee Court for decision afresh strictly in accordance with law and the evidence on record. He may also allow the parties to produce further evidence in support of their versions. There shall be no order as to costs.