' SH. HAKIM ALI, J.---Through this RFA, Land Acquisition Collector, WAPDA SCARP prays to this Court, to set aside the judgment/decree dated 5-11-1989 passed by the learned referee Court, presided by learned Senior Civil Judge, Bahawalnagar in case of Muhammad Ismail (succeeded by Muhammad Ashraf and others, legal representatives during the pendency of the lis) v. WAPDA SCARP and others.
2. Facts, which led to the finding of this appeal, had commended with the publication of a notification under section 4 of the Land Acquisition Act, 1894. On 3-5-1990, when the WAPDA SCARP through the above-noted notification declared its intention to acquire the land measuring 57 Kanals, 1 Marla of Muhammad Ismail and others for the construction of drain, situated in Chak No,4 Fordwah, Tehsil Chishtian. After survey, the lands were acquired by the WAPDA SCARP, Land Acquisition Collector. The possession of the lands was taken by him on 4-11-1990 while the award was announced on 27-10-1991.
3. Dissatisfied with the award dated 27-10-1991 the rate fixed for the lands and the amount determined, the owner, Muhammad Ismail, filed an application before the Land Acquisition Collector, WAPDA SCARP, to refer the dispute of the fixation of compensation of the lands to the referee Court, which was duly submitted by the aforesaid Collector to the learned Senior Civil Judge, Bahawalnagar, and was received by that Court on 12-1-1992.
4. Parties were summoned and directed to prove their case after framing of two issues, which are as follows:--
(i) Whether the petitioner is entitled to the enhancement of the compensation?
(ii) Relief.
5. To prove his case, Muhammad Ismail, the predecessor of respondent produced, Ghulam Ali, Patwari, A.W.1, Waqar Hussain, Patwari, WAPDA SCARP, A.W.2, Faqir Muhammad, A.W.4 while Muhammad Anwar, one of the L.Rs, of Muhammad Ismail appeared as A.W.3 in the oral evidence while documentary evidence was produced by the aforesaid L.Rs, of Muhammad Ismail, deceased ranging from Exh.A.1 to Exh.A.27.
6. To disprove the version/assertion of the petitioner/respondent, Collector WAPDA SCARP brought Muhammad Aslam, Patwari as R.W.1 while in the documentary evidence Exh.R.1 to Exh.R.5 were produced and the evidence was closed by the present appellant. The learned referee Court after evaluating and appreciating that evidence of both the parties came to the conclusion that the amount fixed through the award dated 27-10-1991 was not commensurate with the price prevailing in the locality. So, it awarded the respondent with the compensation of the land as the rate of Rs,2,000 per Marla. Rs, 40,000 per Kanal = (Rs,3,20,000 per Acre) while the compensation fixed by the Collector at the rate of Rs,28,111 per Acre was discarded by the aforesaid referee Court. The learned Court also granted 8% interest from the date of possession i.e, 4-11-1990, up to the date of payment, on the enhanced amount in addition to compulsory charges of 15% amount per Marla.
Thus aggrieved from this decision/award of the referee Court dated 5-11-1998 the appeal has been filed by Land Acquisition Collector, WAPDA Scrap, Bahawalnagar.
7. The learned counsel appearing on behalf of the appellant has disputed the fixation of the amount to the tune of Rs,2,000 per Marla, which calculated came to Rs,3,20,000 per Acre as being too exorbitant as to be proportionate with the prevailing market rate at the time of acquisition.
According to the learned counsel for the appellant, the learned referee Court has wrongly and incorrectly enhanced the price of the land without adverting to the documentary evidence produced by appellant as Exh.R.4 and Exh.R.5 brought on the record. As per learned counsel, the land acquired was not of so much value or of having that of important situation, as to fetch the enhanced fixed compensation. Therefore, it has been prayed that the award be set aside and the matter be referred back for re-appreciation of correct compensation to the learned Court below.
8. Opposing the prayer for acceptance of the appeal and rebutting the arguments of the learned counsel for the appellant, it has been argued by the learned counsel for the respondents that the referee Court has thoroughly scanned the oral as well as documentary evidence produced by the parties and had drawn correct conclusions from the record. According to the learned counsel, the land acquired by the WAPDA SCARP was situated near to an important location having in its vicinity, the metalled Road, Market High School, Post Office, Hospital and other facilities. To prove the fixation of the amount of compensation to be correct, he has referred to Mutation No,659 sanctioned on 2-2-1988 (Exh.A.17) in favour of one Manzoor Ahmed son of Allah Ditta on 2-2-1988 for the land of which consisting of 2 Marlas, 2 Sarsahi, the price was fixed at Rs,3,550, Mutation No,758 attested on 18-12-1990 (Exh.A.15) has also been referred, which was got sanctioned by one Muhammad Majeed in favour of Muhammad Hanif and others, with regard to 16 Marlas of land for Rs,64,000. He has also referred to other mutations, which they had produced in their documentary evidence. The learned counsel for the respondent has also referred to the statement of R.W.1, Muhammad Aslam, Patwari, who while deposing in cross-examination had admitted that the market price of he land per Marla would be Rs,6,000. So according to the learned counsel this admission from the mouth of appellant's witness was sufficient for the dismissal of this appeal.
9. We have considered the arguments addressed by the learned counsel of both the parties and have examined the record of the case, minutely.
10. Before proceeding further to discuss the merits and demerits of the case, we would like to comment upon the referred statement of R.W.1, Muhammad Ismail, Patwari, who in the cross- examination had stated that the market price of the land would be Rs,6,000 per Marla. In fact, this statement has not been read with its true and correct perspective. The words, which are pertinent to be considered are" {{URDU TEXT}} ' These words do not connote that the witness had based his opinion upon any documentary evidence. This was mere an opinion, which was got expressed by the respondents from a witness in his cross-examination, without referring to any documentary evidence. Such-like concessions from the mouth of a witness of an adverse party, which had got no foundation cannot be accepted true, especially when it is a case where the price of the land has to be proved through documentary evidence. The oral evidence and particularly opinion evidence, in the face and presence of documentary evidence cannot be blessed with approval by this Court. If we consider it a true assessm ent, even then we have found that this admission is a manipulated one, by the respondents, which they got it from an official during the cross-examination to get benefit in the case. It is settled law that opinion evidence according to Article 61 of the Qanun-eShahadat Order, 1984 cannot be accepted unless it is shown to have been based upon cogent evidence or reasons.
Therefore, we cannot hold it as an admission or a statement having any repercussion on the assessm ent or for the fixation of compensation for the lands in dispute.
11. If this evidence is to be considered to decide the fate of a case, then the similar position was found by us of the statement of Ghulam Nabi, Patwari, who was produced by the respondents into their evidence as A.W.1, who had in his cross-examination admitted that Mutation No,46, dated 18- 1-1991 was in respect of a sale of land for 2 Marlas and 7 Sarsahis sanctioned for the amount of Rs,1,000. He has also admitted that Mutation No,39, dated 6-4-1990 was in respect of land measuring 4 Marlas and 6 Sarsahis for Rs,1,000. So, this cannot be held criterion to fix the amount of compensation. All the documentary evidence, which is relevant, admissible and is for the prescribed period has to be given preference.
12. The place and situation of the acquired land should be the arch consideration to be given thoughtful attention for the assessme nt of compensation of the land. No doubt Exh.A.1 has depicted the nearness of the acquired land to Hospital and other such places yet it may be kept in mind that the land, which is abutting to a road having commercial complexion has got more value than the other places such-like, Hospital Bus Stop and School and others. All the lands of 57 Kanals cannot be considered and held to be adjacent to the road, which consists of only bricks paved road. As the road has been found not a metalled road from Exh.A.1, so this cannot be considered to be the value of nature of a commercial metalled city road. Even if the land adjoining to that paved road be considered to be having an importance, even then it would not lose its nature of village road and it would consist of a few Marlas of land, which would be adjoining to the aforesaid paved road, while the land on the rear side would be treated as rural agriculture land. It is a land of 'Chak' and not of a City, therefore, hiking of the price, nature and potential of the urban land cannot be considered to be criterion while fixation of compensation of these lands. The parties have failed to produce any evidence with regard to the enhancement of prices and showing the index of its increase year- wise from where the price percentage of the year-wise increase, could be determined. The criteria, which the law has provided for the determination of the price of the land to be acquired is settled.
We have to keep into consideration the period, which had elapsed with the passage of previous year from the notification issued under section 4 of the Land Acquisition Act i.e, from 3-5-1989 to 3- 5-1990. The sales during this period are of the determinative consideration. So, we have worked out the following average of the price on the basis of these mutations, noted at Serial Nos.2.To 5 which had come into existence during this period and were entered in Average Sale price of residential lands, produced into evidence by respondents themselves as Exh.A.5. The following is the details of those mutations, their price and the average:-- ' Mutation No,51 sanctioned on 13-6-1989 for 9 Marlas, 3 Sarsahi for Rs,30,000.
' Mutation No,52 sanctioned on 26-7-1989 for 9 Marlas, 3 Sarsahi for Rs,10,000.
' Mutation No, 53 sanctioned on 9-8-1989 for 15 Marlas for Rs .3 ,500 .
' Mutation No, 54 sanctioned on 9-9-1989 for 5 Marlas for Rs . 5,000 .
' Total lands: 36 Marlas, 6 Sarsahi. Total amount: Rs,80,000 ' Per Marla: Rs,2181.78 ' Per Kanal: Rs,43,635.60 ' Per Acre: Rs,3,49,084.80
13. It may be pointed out here that these sales are referable to residential pieces of lands and cannot be applied to rural agricultural lands. The other documentary evidence produced is as under:-- ' Exh.A.2. Average sale price is based upon mutations, which were sanctioned during the period of 10-8-1990 to 25-6-1991, the period, which is not relevant for the purpose of this case.
' Exh.A.3. Contains one year average sale price for the period of 5-11-1990 to 5-11-1991, which period is not apropos for the determination of the present controversy and is related to residential lands.
' Exh.A.4. The same is the position as noted above.
' Exh.A.14 and Mutations Nos.783 and 758 sanctioned on 29-4-1991 and 16-12-1990.
' Exh.A.15 are already entered in Exh.A.2 vide above, so the discussion above apply here also.
' Exh.A.16 and Mutation have also no material bearing upon the Exh.A.24. Case because of these being not related to the required period.
14. After the above discussion, now remain two opinions for us. Firstly to remand the case for decision afresh, which would not be conducive to the interest of both the parties, as prolongation of case has created already an adverse impact and would tantamount to denial of justice. The second choice is to fix the amount under rule of thumb on the basis of value found and assessed for the crucial period pertaining to residential sites, which are treated as double the amount than those of rural lands.
15. So, we, have found Rs,2,181.78 per Marla average sale price from the transactions of residential plot, which would be one half of that amount i.e, Rs,1090.89 per Marla, to make it round figure it may be treated as Rs,1,091 per Marla, for the lands acquired those of the respondents. Accordingly, the appeal is accepted with this modifications that appellant would be liable to pay to respondents compensation for their acquired c lands at the rate of Rs,1,091 per Marla equivalent to Rs,21,820 per Kanal or in other words Rs,1,74,560 per Acre from the date of possession i.e, 4-11-1990 up to the date of payment with interest at the rate of 6 per cent as prescribed by section 28 of Land Acquisition Act on the enhanced amount along with 15% compulsory acquisition charges per Marla.
16. Therefore, keeping in view, the requirement of law, considering the sales during that period, we have fixed the above noted rate of compensation. So, the judgment/order of the learned referee Court is modified to the above extent.