This judgment will dispose of Writ Petition No. 1144 of 1976 and 41 other cases shown as connected with it in the daily cause list of this Bench for today.
2. The petitioners in these cases are evictees from Tarbela Dam and were allotted state land. As shown in each respective petition, in various villages of Tehsil Toba Tek Singh as per policy letter of the Government of West Pakistan bearing No. 5036-67/959-CS-I1 dated 23rd May 1968, copy placed on record as Annexure 'A'. In para. (iv) of this policy letter it was laid down that "The land will be given on payment of Market Price and the market price will be based on the price fetched during the last twelve months preceding May 1966, in registered sales (not mutations)."
The case of the petitioners is that the sales which should have been taken into consideration should be sales of land of the same or similar quality as was allotted to the petitioners. They submitted that the land allotted to the petitioners was banjar qadeem, whereas the registered sales taken into account pertained to the nehri lands. According to the petitioners this is illegal and without lawful authority. After having exhausted the departmental remedies, the petitioner have come up in writ petitions to this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan.
3. The grievance and points raised by the petitioners seem to have merit. The word market value is nowhere defined. At this place reference may be made to Vyricherla Narayana Gajapatiraju v.
Revenue Divisional Officer Vizagapatam (AIR 1939 P C 98) where their Lordships at page 102 observed that "it is perhaps desirable in this connexion to say something about this expression "the market price". There is not in general any market for land in the sense in which one speaks of a market for shares or a market for sugar or any like commodity. The value of any such article at any particular time can readily be ascertained by the prices being obtained for similar articles in the market. In the case of land, its value in general can also be measured by a consideration of the prices that have been obtained in the past for land of similar quality and In similar positions, and this is what must be meant in general by "the market value' in section 23" (of the Land Acquisition Act 1 of 1894). As is evident the aforesaid was a case under the Land Acquisition Act, but the general principle enunciated with reference to the world market value is of great significance and can safely be applied here as well. According to the aforesaid, if land granted to the petitioners was baslar qadeem, obviously they could not be asked to pay the market price or nehri land, because, nehri land cannot be said to be of similar quality as the land allotted to the petitioners. Similarly Om Prakash Aggarwala in his "Compulsory Acquisition of Land" 1950 (Third Edition) at page 250 states that "where there are dissimilarities, for example in respect of facilities for irrigation or protection against flood, or on account of lowness or highness, proper allowance must be made, and it is not difficult to make such allowances". On page 253, the learned author further states that "broad classification will be as cultivated, culturable but not cultivated, unculturable waste, jungle and so forth. Cultivated land may be chahi (irrigated by well), nehri (irrigated by canal), maru (dry) and so, forth. Some land might have been prepared and made fit for special crops such as tobacco, sugarcane and the like. So also for lands growing potatoes or vegetables, and plants groves, mango gardens, flowers and so forth". Similarly in Sanjiva Row's "Law of Land Acquisition and Compensation" (1958) (Fourth Edition), revised and enlarged by J. P. Singhal, it is stated at page 401 that "whichever method is adopted, it has Ito be borne in mind, that the value of agricultural land varies according to the productivity of the soil, and must always be kept in view when the value of the land under acquisition is to be determined on the basis of sales of other similar lands. Lands are usually classified as (1) mazrua or cultivated, (2) culturable but not cultivated or ghair mazrua mumkin, (3) uncultivable waste or banjarghair mumkin, (4) jungle and so forth. There may also be various sub-classifications according to circumstances such as grass or straw land rendered fit for special crops such as sugarcane, tobacco and the like. Similarly, land selected and prepared for crops such as potato and other vegetables, platain or mango groves, etc.". See Mst. Fatima and others v. Shah Muhammad and others (PLD 1975 SC 318), which was a case under Rehabilitation Settlement Scheme, where their Lordships took notice of and explained various types and classes of land mentioned therein with reference to the Punjab Settlement Manual by Sir James M. Double. This will show that fixation of market value solely on registered sales of nehri land was not permissible under Condition No. (iv) as laid down in the Government letter dated 23-5-1968 above referred to for a land of different classification, namely, banjar qadeem. The registered sale deeds, in my opinion, should be relevant sale deeds. As for example if land is in one village but sale deeds relied upon pertain to some other village at a distance of say twenty miles, the said sale deeds can hardly be said to be relevant, inasmuch as, they would not be sale deeds of land in the vicinity of the concerned land. Similarly if sale deeds are of a different type of land e.g. Sakni land or urban land or building site again they will not be so much in point for determining price of purely agricultural land not similarly circumstanced or situated. The world market value has a special meaning and when it is to be determined with reference to registered sale deeds, the said sale deeds obviously should be such which do not alter the basic concept of market value which is inherent in that term itself. It is here where, if I can say so with respect to all concerned, the mistake in the instant case has taken place. It is a matter of common knowledge that, for instance, under the West Pakistan Rehabilitation Settlement Scheme nehrt land has a rate of Produce Index Units different from that of a banjar qadeem land. Same had been the position under the Land Reforms Regulation 64 of 1959 and even now under the Land Reforms Regulation 115 of 1972. There is thus no justification to destroy this distinction in the instant case.
4. When confronted with the above situation, the learned AdvocateGeneral argued that in paragraph (iv) of the Government letter, which constituted conditions for sale of this land, issued under section 10 of the Colonization of Government Lands (Punjab) Act (V of 1912) it was nowhere stated that the registered sales during the last twelve months should have only been of banjar qadeem land and' that no sales of other typas of lands were to be taken note of. The lea as advanced is not correct, No doubt, the words used in paragraph (iv) of the letter are "registered sales", but it does not mean that registered sale deeds should be such which are not of similar lands in the vicinity, because, otherwise they would destroy the very concept of the "market value" as above highlighted. The learned Advocate-General then argued that there was no registered sale deed available of banjar qadeem lands and it was for this reason that sale deeds of nehri lands were taken into account. That may be so, but then from these sale deeds due allowances should have been made for the land in dispute being inferior in quality from the nehri land. As this was not done, fixation of price on the sole basis of the price of superior lands, was not justified.
Another point argued was that shortly within a span of nine months or so all the petitioners were successful in getting water for their lands, and as such, the Department was justified to call their land as, or equate the same with nehri land. I am afraid that this again is not warranted.
Procurement of water was an act under a different provision of law, namely, the Canal and Drainage Act VIII of 1873 and it took place after allotment of land to the petitioners. Any improvement made in the allotted land after the date of allotment was not relevant, because, price had to be fixed with reference to allotment date and not with reference to any events subsequent thereto. The learned Advocate-General submitted that the Government was kind to these petitioners that it gave land to them and in cases where a Tarbela Dam evictee owned in Tarbela Dam area less than 12 -- acres he was given land equal to 12 --acres. This may be very creditable, but the question is not as to how much area a landowner was to be given, but as to how much price was to be charged from him. The letter referred to, obviously was issued as conceded by the learned Advocate-General under section 10 of the Colonization of Government Lands (Punjab) Act V of 1912, and as such, constituted statutory conditions on the basis of which land to the petitioners was allotted and where under they entered into possession of the same. So long as the basic conditions of allotment-(which I was told were arrived at in consultation with the advisory committee representing the evicted) -remain the same, the Government cannot charge anything more from the petitioners, who contributed towards a public purpose of construction of Tarbela Dam and were compelled to shift their place of residence to various villages in a far off Tehsil of Toba Tek Singh, District Lyallpur. (I have said far off, because, Toba Tek Singh is at quite a long distance from the site of Tarbela Dam). In these circumstances, it is not possible to charge such amount from them which is not warranted by law. The land in dispute was given to the petitioners in consideration for their land which had come under the dam and, therefore, they can be asked to pay only that which is warranted by the law hereinbefore referred to.
5. The upshot of the above discussion is that the present 42 writ petitions are accepted. The orders and proceedings impugned in these cases are quashed and the cases are remanded to the learned Member, Board of Revenue, to re-fix the prices of the allotted land to the petitioners strictly in p conformity with para. (4) of Government letter dated 23-2-1968 as explained and interpreted above. The parties shall bear their own costs. Short orders in each connected case are being passed separately with reference to the present judgment. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.