' MUHAMMAD JEHANGIR ARSHAD, J.---The Province of Punjab and others have filed this appeal under section 54 of the Land Acquisition Act seeking reversal of judgment and decree, dated 19-1- 1992 passed by learned Senior Civil Judge, Rahim Yar Khan whereby the learned Senior Civil Judge while answering Reference under section 18 of the Land Acquisition Act, determined the price of the disputed land at the rate of Rs,38,375 per acre, as against Rs,888 per acre for cultivated land and Rs,414 per acre for uncultivated land announced by Land Acquisition Collector in his award, dated 8-3-1988 (Exh. P . 1).
2. The facts giving rise to the institution of present R.F.A. Are that for the purposes of construction of 2-L/MD-2 Drain, land measuring 13 acres, 1 Kanal and 19 Marlas situated in Chak No,127-P, Tehsil Rahim Yar Khan owned by the respondents was acquired at the instance of Water and Power Developments Authority (WAPDA) and Notification under section 4 of the Land Acquisition Act was issued on 26-6-1985 followed by Notification under section 17(4), dated 7-7-1987 and under section 6 of Land Acquisition Act, dated 10-2-1988 and Award determining the compensation was announced by the Collector Land Acquisition on 8-3-1988. As the respondents were not satisfied with the above-mentioned price, on their initiation the Land Acquisition Collector referred the matter to the Senior Civil Judge, Rahim Yar Khan as Referee Judge under section 18 of Land Acquisition Act vide order, dated 20-4-1988. The learned Senior Civil Judge/Referee Judge on receipt of the said Reference issued notices to the parties. The respondents affectees of the disputed property in their reply based their claim challenging the price determined in the Award and pleaded for raising the same to Rs,40/50,000 per acre. The learned Senior Civil Judge keeping in view the claim of the owners and the reply of the appellant frafned the following issues and put the parties at trial:-- Issues:--
(1) Whether the petition is within time? OPA
(2) Whether the petitioners are estopped by their act and, conduct to file the present petition? OPR
(3) Whether the petition is not maintainable in its present form? OPR
(4) Whether the compensation assessed by the Collector is inappropriate and inadequate. If so, what should be the appropriate compensation? OPA.
' The respondents in support of their claim got examined Muhammad Hanif P.W.1, Sardar Muhammad P.W.2, Abdul Hameed P.W.3 and closed their evidence by tendering Award, dated 8-3- 1988 (Exh.P-1), List of Voters (Exh.P-2), Award of Land Acquisition Collector, dated 21-9-1988 (Exh.P- 3), registered agreement to sell (Exh.P-4), registered sale-deed (Exh.P-5) and receipt (Exh.P-6). As against, the appellants produced Muhammad Shafi D.W.1 Naib Tehsildar (WAPDA) and closed their evidence by tendering documents Exh.D-1 to Exh.D-8. In rebuttal, the respondent produced one Umar Khan, P.W.4 and also tendered copy of registered sale-deed Exh.P-7. On the conclusion of trial and after appraisal of evidence, the learned Senior Court Judge/Referee Judge answered the Reference by deciding issue No,4 in favour of respondents and determined the price of the disputed property at the rate of Rs,38,375 per acre. The respondents were also allowed compulsory acquisition charges at the rate of 15%. However, interest/Riba was refused having been declared unIslamic. Feeling aggrieved of the judgment of learned Senior Civil Judge/Referee Judge, the Province of Punjab, etc. Have filed this appeal.
3. Hafiz Muhammad Abdul Qayyum, learned Advocate appearing on behalf of the appellants had vehemently argued that the findings of the learned Senior Civil Judge are based on no evidence at all and also suffer from misreading and non-reading of evidence, inasmuch as the learned Senior Civil Judge has not determined the compensation in terms of section 23 of the Land Acquisition Act and has fixed the price irrespective of determining the nature of the property and also keeping in view the inferior quality of the same. He has further argued that the learned Trial Court while passing the impugned judgment was mainly relied upon the oral evidence of the respondents, whereas in acquisition cases, it is an established principle of law that oral evidence cannot be made sole basis for the determination of compensation/market value of the acquired property, if there is documentary evidence available in the case. It is next argued that in terms of Rule 10(1)(iii)
(c) of the Land Acquisition Rules, while determining the price of the acquired land the average price of one year preceding from acquisition has to be taken into consideration only.
4. On the other hand, Mr. Basit Babar Chughtai, learned Advocate appearing on behalf of the respondents has strongly supported the findings of the learned Trial Court by arguing that the price determined by the learned Trial Court is still disproportionate as compared to the location and quality of the land in dispute. But in order to avoid furtherlitigation the respondents have accepted the judgment of the Trial Court and opted not to file any appeal seeking further enhancement of the price.
5. We have considered the arguments of the learned counsel for the parties, gone through the entire evidence and also appraised the evidence available before us.
6. Admittedly the Notification under section 4 of the Land Acquisition Act was issued on 26-6-1985 and in terms of Rule 10(1)(iii)(c) of Land Acquisition Rules, 1983 average market price of similar kind of land similarly located, on the basis of the price prevalent during the period of twelve months preceding the date of publication of Notification under section 4 of Land Acquisition Act in the area sold has to be followed which in the instant case was 26-6-1984 to 25-6-1985. Hence, the sale- deed Exh.P-4 relating to sale of land on 11/12-4-1987 was of no help to the respondents being later to the Notification under section 4 of the above Act and there is considerable force in the contention of the learned counsel for the appellant that the learned Senior Civil Judge was not right in considering the said document while determining the price. However, the sale taking place through agreement to sell, dated 5-11-1984 Exh.P.5 followed by receipt Exh.P-6 and sale-deed, dated 20-11-1984 based on agreement to sell, Exh.P-5 whereby 120 Kanals, 13 Marlas of land was sold for a price of Rs,4,10,000 could be and was validly relied upon by the learned Senior Civil Judge having taken place A between 24-5-1984 to 25-6-1985 i,e, the period requisite in terms of Rule 10(1)
(iii)(c) of Land Acquisition Rules. We however, agree with the contention of learned counsel for the appellant that the learned Senior Civil Judge was not justified in relying oral evidence while determining the price. The learned counsel has also argued that the Land Acquisition Collector determined the price after spot visit and also determination of classification of disputed land cultivated or uncultivated in nature. But at the same time the learned counsel has not been able to refer to any evidence produced by the appellant to the effect as to what evidence was available before the Land Acquisition Collector while determining the classification/nature of the land i,e, cultivated or uncultivated and also the market value of the same at the relevant time. Hence, in the absence of any other evidence, we have no option but to rely upon Exh.P-5, Exh.P-6 and Exh.P-7 by which land measuring 120 kanals 13, marlas was sold for a price of Rs,4,10,000 which has not been disputed by the appellant and according to these documents average sale price during the above mentioned period in terms of Rule 10(1)(iii)(c) of above Rules comes to Rs,27,333 per acre which may be considered as appropriate and accordingly we accept the same.
7. The upshot of above discussion is that this appeal is partly allowed, the impugned judgment is modified and the compensation/ market value of the disputed property as determined by the learned Senior Civil Judge, is reduced from Rs,38375 per acre to Rs,27,333 per A acre. However, the respondents shall be entitled to compulsory acquisition charge at the rate of 15% in terms of section 23(2) of the Land Acquisition Act, 1894.