1. ' SYED ZAHID HUSSAIN, J.---For the establishment of Small Industry Estate No,3, Sialkot, Notification under S.4 of the Land Acquisition Act, 1894, dated 2-6-1990 was issued to acquire the land in dispute. Award dated 11-2-1993 was announced by the Land Acquisition Collector, who assessed the compensation of the land near to the road at Rs,3716/-per marla and for the land away from the road at Rs,549.48 per marla. The landowners, appellants, feeling dissatisfied with the assessm ent of compensation filed Reference, which was heard by the learned Senior Civil Judge, Sialkot. Before that Court the Corporation made an application for being impleaded as party, which was, however, dismissed on 13-7-1994, which order gave rise to C.R. No,3330/1994. The revision petition was ultimately dismissed having become infructuous, as in the meantime the Reference had been decided and appeal had been filed there against. This was vide order dated 29-3-2002. After trial of the Reference, the learned Senior Civil Judge, Sialkot came to the conclusion that "the petitioners are entitled to receive Rs,1500 per marla by way of compensation of the disputed land". The Province of Punjab and the Collector, Land Acquisition has assailed the determination of compensation so made by the Court through R.F.A. No,40 of 2000 whereas the landowners have also appealed against the same judgment through R.F.A. No,126 of 2000. In both the appeals the Corporation has made applications for being impleaded as party. These matters are sought to be disposed of by means of this judgment.
2. The learned counsel for the parties have been heard and record perused.
3. There is a consensus that issue No,3 is of relevance in the matter, which reads as follows:-- "3. What was the market value of the land acquired by the respondents at the relevant time and to what amount the petitioners are entitled to recover from the respondents as compensation? OPA"
2. ' Since the Corporation had been declined to be impleaded as party, the evidence in the matter was produced for and against the landowners and the Collector.
3. ' Section 23 of the Land Acquisition Act, 1894 in regard to the factors to be kept in view, while assessing compensation has received extensive judicial consideration from time to time. In Province of Punjab through Collector, Shikhupura and others v. Akbar Ali and others 1990 SCMR 899, a larger Bench of the Honourable Supreme Court of Pakistan took into consideration the situation of land in close vicinity to a metalled Road (Lahore-Sargodha Road) where there was a factory, a petrol pump, a grid station, a tent age factory, Dawood factory, shops and it was observed "even though it (land) may not be built upon for the time being and used for agricultural purposes, yet it is potentially a building site and the learned Judges of the High Court were perfectly right in so holding". It was further held that "the land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, but also with referenced to the uses to which it is reasonably capable of being put in the future". In Market Committee, Kanganpur through Administrator v. Rayyat Ali and others 1991 SCMR 572, it was observed that average of sales in one year "is seldom decisive but always relevant". Factors (Plus and minus) were listed referring to a judgment of the Supreme Court of India i,e, Chimanlal Hargovinnddas v.
4. Special Land Acquisition Officer, Poona and another AIR 1988 SC 1652, such as:-- "Plus factors:
(1) Smallness of size.
(2) Proximity to a road.
(3) Frontage on a road.
(4) Nearness to developed area.
(5) Regular shape.
(6) Level vis-a-vis land under acquisition.
(7) Special value for an owner of an adjoining property to whom it may have some very special advantage.
5. Minus factors:
(1) Largeness of area.
(2) Situation in the interior at a distance from the road.
(3) Narrow strip of land with very small frontage compared to depth.
(4) Lower level requiring the depressed portion to be filled up.
(5) Remoteness from developed locality.
(6) Some special disadvantageous factors which would deter a purchaser" In Sardar Abdur Rauf Khan and others v. The Land. Acquisition Collecltor/Deputy Commissioner Abbotabad and others 1991 SCMR 2164, it was observed that while determining compensation future prospects of land, such as the use to which the land was capable were also relevant. In Maqbool Ahmed Fatehally and others v. The Collector, District Lasbella and others 1992 SCMR 2342, it was reiterated that only the past sales should not be taken into account but the value of the land and its overall due potentiality may also be a determining factor. In Land Acquisition Collector, Rawalpindi and others v. Dina and others 1999 SCMR 1615 it was observed that the fact that the land was situated within the limits of Rawalpindi Cantonment and was accessible to urban amenities with a potential for being used as residential purposes was to be kept in view. It was further observed that the owner who is being deprived of the land as a result of compulsory acquisition is entitled to fair compensation. In Murad Khan through his widow and 13 others v. Land Acquisition Collector and another 1999 SCMR 1647, it was observed that merely one year average price of the land is not decisive in itself for the determination of compensation but other considerations have also to be kept in view. On appreciating number of precedents, considerations relevant for determining the compensation were highlighted by their Lordships. In Collector, Land Acquisition, Mardan and others v. Nawabzada M. Ayub Khan and others 2000 SCMR 1322 it was held that potential value and future prospects of the land under acquisition in addition to one year average was to be kept in view. The Hon'ble Supreme Court has in Fazal Haq College through Vice-Chairman v. Said Rasan and others PLD 2003 SC 480, reiterated that "The market value has been described as what a willing purchaser would pay to the willing seller. For assessing the market value, it is also essential to look into the location of the land in question, its potentiality and the amount of sale of similar kind of land in the vicinity at the relevant time". The trend of judicial authority indicates that consideration& and factors for determining the compensation of the land vary from time to time, location to location keeping in view the use present and future, its vicinity and ambience. There cannot be any fixity of criteria. It is thus that assessment of fair compensation is to be made objectively. Needless to state that burden of proving the entitlement to higher rate of compensation is on the landowner. Reference in this context may be made to Government of Sindh and 2 others v. Muhammad Usman and 2 others 1984 CLC 3406.
6. ' The learned counsel for the parties as also for Small Industries Corporation (Applicant to be impleaded as party) have addressed arguments with reference to the claim of the Corporation to be impleaded as party and heard in the matter. The learned counsel for the applicant makes reference to S.20(c) that the applicant was entitled to notice, which was not issued by the Court. He also makes reference to S.22A to contend that this amended provision enabled the applicant to lodge cross-objections and the Court could even reduce the amount awarded by the Collector. He also makes reference to subsection (2) of S.50 of the Land Acquisition Act, 1894 that the law permitted the applicant to adduce evidence for the purposes of determination of the amount of compensation. All such provisions which are sought to be invoked were result of amendment through Ordinance No,XLIV of 1969.
7. ' In Pir Khan through his Legal Heirs v. Military Estate Officer Abbotabad and others PLD 1987 SC 485 an issue arose as to whether the beneficiary of the acquisition could file appeal against the judgment of the Reference Court. It was observed with reference to S.18 and S.50(2) of the Land Acquisition Act, 1894 that "a local authority or a company is only conferred the right to appear in proceedings before the Collector or the Court and adduce evidence for the purpose of determining the amount of compensation but a reference under section 18 by them is barred (vide the proviso to subsection (2) of section 50). It is, therefore, manifest that whatever may have been the object of the law, in view of plain language of section 50(2), these is no alternative but to give effect to it.
8. Hence, so far as a local authority or a company is concerned, the award made by the Land Acquisition Collector becomes final; it has neither the right to ask for a reference under section 18, nor on a parity of reasoning, a right to prefer an appeal against a decision made upon a reference under section 18 of the Act by the Court," Such a view was affirmed and followed subsequently in Behram Khan and 54 others v. Military Estate Officer and 2 others (1988 SCMR 1160), Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (1991 SCMR 2193), Land Acquisition Collector, Abbotabad and others v. Muhammad Iqbal and others (1992 SCMR 1245) and Pakistan through Military Estate Officer, Kharian Cantt and another v. Abdul Hayee Khan through Legal Heirs and 5 others (PLD 1995 SC 418).
9. It may be observed that in the instant case the applicant does not seek or ask for remedy of appeal, his emphasis is that in view of provisions of S.20(c), S.22A and S.50(2), the applicant was entitled to notice (S.20), to lodge objections (S.22A) and to appear and adduce evidence for the purpose of determining the amount of compensation (S.50(2)). In India, incidentally the provisions of subsection (2) of S.50 of the Land Acquisition Act, 1894 are similarly worded and has received interpretation from time to time. In U.P., Awaz Evam Vikas Parishad v. Ghan Devi (dead) by L.Rs, and another etc. AIR 1995 SC 724 such an issue arose in somewhat similar situation and it was observed "Thus, on an interpretation of the provisions of S.50(2) of the L.A. Act, it must be concluded that, subject to the limitation contained in the proviso, a local authority for whom land is being acquired has a right to participate in the proceedings for acquisition before the Collector as well as the reference Court and adduce evidence for the purpose of determining the amount of compensation and the said right imposes an obligation on the Collector as well as the reference Court to give a notice to the local authority with regard to the pendency of those proceedings and the date on which the matter of determination of amount of compensation would be taken up. The recognition of this right raises the question whether the local authority, feeling aggrieved by the determination of the amount of compensation by the Collector or the reference Court, can take recourse to any legal remedy." And as per majority, the view expressed was that:- "1. Section 50(2) of the L.A. Act confers on a local authority for whom land is being acquired a right to appear in the acquisition proceedings before the Collector and the reference Court and adduce evidence for The purpose of determining the amount of compensation.
2. The said right carried with it the right to be given adequate notice by the Collector as well as the Reference Court before whom acquisition proceedings are pending on the date on which the matter of determination of compensation will be taken up." Observations appearing in M/s. Neyvely Lignite Corpn. Ltd. v. Special Tahsildar (Land Acquisition), Naively and others (AIR 1995 SC 1004) are of also relevance, which read as under:- "The right given under subsection (2) of section 50 is in addition to and not in substituting of or in derogation to all the incidental, logical and consequential rights flowing from the concept of fair and just procedure consistent with the principles of natural justice. The consistent thread that runs through all the decisions of this Court starting from Himalayan Tiles case, (AIR 1980 SC 1118), is that the beneficiary, i,e,, local authority or company, a co-op. Society registered under the relevant State law, or statutory authority is a person interested to determine just and proper compensation for the acquired land and is an aggrieved person. It flows from it that the beneficiary has the right to be heard by the Collector or the Court. If the compensation is enhanced it is entitled to canvass its correctness by filing an appeal or defend the award of the Collector. If it is not made a party, it is entitled to seek leave of the Court and file the appeal against the enhanced award and decree of the Civil Court under section 26 or of the judgment and decree under section 54 or is entitled to file writ petition under Art.226 and assail its legality or correctness. When the award made under section 11 of the Collector is vitiated by fraud, collusion or corruption, the beneficiary is entitled to challenge it in the writ petition apart from the settled law that the conduct of the Collector or Civil Judge is amenable to disciplinary enquiry and appropriate action. These are very valuable and salutary rights. Moreover in the language of Order I, Rule 10, C.P.C., in the absence of the beneficiary who ultimately is to bear the higher compensation, no complete and effectual determination of binding just and proper compensation to the acquired land would be made. So it is concomitantly a proper party if not a necessary party to the proceedings under Order I, Rule 10, C.P.C. The denial of the right to a person interested is in negation of fair and just procedure offending Art.14 of the Constitution:"
10. ' There is a later judgment of the Indian Supreme Court reported as Abdul Rasak and others v.
11. Kerala Water Authority and others (PLJ 2004 SC (India) 185), wherein by following the above view it was observed that "the right conferred on the local authority under S.50(2) of the Land Acquisition Act, in the light of the scheme of the Act, carried with it the right to be given adequate notice by the Collector as well as the reference Court before whom acquisition proceedings are pending of the date on which the matter of determination of compensation will be taken up; the local authority is a proper party in the proceedings before the reference Court and is entitled to be impleaded as a party in 'those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard." The judgment passed by the High Court remanding the matter to the trial court for decision afresh was maintained. Similar view appears in Rajpipla 'Municipality v. Smt.
12. Manekben and others (AIR 1981 Gujarat 210), Indian Oil Corporation Ltd., Rajkot v. Amratlal Chimanlal and others (AIR 1989 Gujarat 32) and Victoria Xavier and others v. The Greater Cochin Development Authority and another (AIR 1993 Kerala 95).
13. ' Though in Hassan Imdad v. Deputy Commissioner/Collector, Lasbella (PLD 1985 Quetta 1) the issue was limited to the provisions of S.20 of the Land Acquisition Act, 1894 and not S.22A and S.50(2), yet the matter was remanded for decision afresh as notice had not been given to the concerned department.
14. In the instant case the Corporation had applied before the Reference Court to be impleaded as party but the said request was turned down by the Reference Court, on 13-7-1994, on its view that the Corporation was not a necessary party but observed that "if the corporation wants to bring material on record for the purposes of disputed value it can produce the witnesses as well as documents into the Court." The revision petition (C.R.No,3330 of 1994) filed against that order was dismissed as having become infructuous on 29-3-2002 with an option to agitate the matter in the present appeal, as by then the Reference had been decided and matter was pending in appeal.
15. The judgment of the Reference Court dated 22-10-1999 is subject matter of appeals filed by both sides i,e, the landowners considering that the compensation has been determined on lower side whereas by the Collector that the enhancement made by the Reference Court was unjustified. It goes without saying that ultimately whatever may be the adequate and reasonable compensation, the burden will be on the applicant/Corporation. We are therefore, of the view that the Corporation was entitled to be impleaded as party and heard in the matter, which affected it.
16. Since the Corporation was not initially served with any notice as contemplated by S.20(c) of the Land Acquisition Act, 1894 and had no opportunity of lodging cross-objections, as contemplated by S.22A and was not allowed to be impleaded/appear and adduce evidence by the Court, despite the provisions of S.50 (2) of the Land Acquisition Act. 1894, the judgment rendered by the Reference Court is liable to be set aside. The Reference Court will proceed to make determination of compensation on the Reference filed by the landowners by keeping in view the above referred principles and affording full opportunity to them accordingly.
17. ' Both the appeals are disposed of in the above terms, as also the applications. The parties to appear before the Reference Court on 4-1-2008. Being conscious of the long pendency of the matter, we will direct the Reference Court to conclude the matter, even if it may have to proceed on day to day basis, before 30th June, 2008. No order as to costs.