' CH. EJAZ YOUSAF, J.--- These civil appeals under Article 185(2)(d) of the Constitution of the Islamic Republic of Pakistan, 1973 are directed against the judgments dated 7-6-2006 and 6-6-2006, passed by a learned Division Bench of the Lahore High Court, Bahawalpur Bench. Since identical questions of law and facts are involved in these appeals therefore, we propose to decide the same through this common judgment.
2. Facts of the cases, in brief, are that in Civil Appeals Nos.1330 & 1465/2006 land measuring 75 kanals situated in revenue estate Uch Gillani, Tehsil Ahmadpur East, District Bahawalpur, was acquired by the Government, vide notification dated 4-6-1981. The compensation was assessed by the Collector Rs, 15,467/-per acre, on 2-8-1983. Since the land owners disputed the amount of compensation therefore, a reference under section 18 of the Land Acquisition Act, was filed. The Civil Judge, Bahawalpur vide his judgment dated 23-11-1991 determined the compensation @ Rs,10,000 per marla with 15% compensation of compulsory charges for land acquisition with 8% per annum compound interest from the date of possession i,e, 21-3-1983. Against the judgment and decree of the Referee Court, R.F.A. No,3 of 1992 was preferred by the appellant before the High Court in which the present appellants Nos.2 & 3 were impleaded as respondents. The appeal was decided on 28-9-1993 against which Civil Appeal No, 663 of 1993 was filed. The said appeal was allowed by this Court vide order dated 2-5-1995, and the case was remanded to the High Court for decision afresh. On remand the appeal was decided by the High Court vide the impugned judgment and the compensation was ordered to be paid @ Rs,4,000 per marla instead of Rs,10,000 per marla as determined by the Referee Court.
' In Civil Appeal No, 1331/2006 land measuring 17 kanals, 17 marlas in Mouza Uch Sharif Bukhari, Tehsil Ahmadpur East, District Bahawalpur was acquired by the Government vide Notification dated 4-6- 1981. Compensation was assessed by the Collector @ Rs,15,467 per acre, on 12-1-1984. The respondent/land owner objected to the compensation and Reference under section 18 of the Land Acquisition Act was filed. Learned Civil Judge, Bahawalpur, on the report of Local Commissioner, vide his judgment dated 30-1-1993, determined the compensation @ Rs,1,000 per marla R.F.A. No, 52 of 1993 was filed by the appellant before the High Court, which appeal was dismissed vide the impugned judgment.
' In Civil Appeals Nos. 1332 to 1335 and 1466 to 1468 of 2006, land measuring 300 Kanals in Mauza Uch Sharif Bukhari, Tehsil Ahmadpur East, District Bahawalpur, was acquired vide Notification dated 2-5-1983. Compensation was assessed by the Collector Rs,15,467 per Acre, on 2-8-1983. The respondents/landowners objected to the compensation and References under Section 18 of the Land Acquisition Act were filed. Learned Civil Judge, Bahawalpur, on the report of Local Commission, vide his judgment dated 30-1-1993, determined the compensation Rs,1,000 per marla.
Against the said order R.F.As Nos.53, 54 and 56 of 1993 were filed by the appellants/ Government before the High Court, which appeals were dismissed vide the impugned judgment.
3. Learned counsel for the appellants has contended that the learned courts below have, while assessing the prevailing market price of the property in question, gravely erred in relying on the report of the Local Commissioner; that the land in question at the time of acquisition was agricultural land, hence learned Judges in the High Court have erred in describing it as Urban area; that the learned Judges in the High Court have failed to take into consideration the documentary evidence produced by the parties with regard to market value of the property in question by the appellants; and that the respondents/land owners had failed to produce any documentary evidence regarding market value of the property in question or prevailing in the vicinity at the time of acquisition of land, hence the impugned judgment may be set aside and the amount of compensation assessed by the Collector may . Be maintained.
4. Learned counsel appearing on behalf of the respondents (appellants in Civil Appeals 1466-1468 of 2006,) while controverting the contentions raised by the learned counsel for the appellants submitted that sufficient oral as well as documentary evidence was available before the Referee Court, which was fully appreciated in determining the prevailing market price. Further Local Commissioner was appointed and report furnished by him was also taken into consideration in assessing the amount of compensation. He maintained that price determined by the Referee Court i,e, Rs,10,000 per marla was fair and the learned Judges in the High Court have erred in reducing the same to that of Rs,4,000 per marla.
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, with their assistance, minutely.
6. In Civil Appeals Nos.1330 and 1465 of 2006, the land in question was acquired by the Government for the construction of Abbasia Link Canal, Tehsil Ahmadpur East at the expenses of WAPDA. The Collector had assessed the price of the land at the rate of Rs,15,467 per acre in the year 1983. It was claimed by the respondents/landowners that the land in question at the relevant time was a valuable land as it was being used as residential as well as commercial property, which, on the other hand was refuted by the appellants. In order to prove their case, oral as well as documentary evidence was led by the parties. The land owners produced Allah Diwaya, Post Master, A.W.I, Qadir Bux, A.W.2, Ghulam Rasool A.W.3, Muhammad Siddique A.W.4 and one of the land owners Hassan Ali appeared as A.W.5. They also produced documentary evidence including Exh.A/I copy of Bainama of the sale deed, Exh.A/2&3, copies of Jamabandies, Exh.P4 copy of Award and Exh.A5 copy of Gazette notification. On the other hand, the appellant/WAPDA had produced Masood Leghari, Collector as RWI and Muhammad Anwar Ali Shah, Naib Tehsildar, as R.W.2, who produced Exh.R1 to R.23. Since evidence of the parties was found deficient in determining market value of the property in question, therefore, Local Commissioner was appointed by the learned trial/Referee Court who after visiting the site and recording evidence of the parties about market value of the land submitted his report mentioning therein that the market value of the land in question at the relevant time was Rs,10,000/- (Rupees ten thousand) per marla. While appearing as A.W.1 Allah Diwaya, Post Master, had deposed that a piece of land measuring 31 marlas was purchased by his department in the year 1974 and in the year 1980-81 such type of land was worth Rs,5,000 to Rs,15,000 per marla iq the vicinity. He had also mentioned that land in question was situated at a distance of about one acre from the office of Town Committee of Uch Sharif and there were also post office building and octroi post adjacent to the land in question. A.W.2 Qadir Bakhsh had deposed that, at the relevant time, such type of land was being sold between Rs,5,000 to Rs,15,000 per marla and that Rest House, Bus Stand and office of Town Committee situated adjacent to the land in question. The learned Judges in the High Court having found that in rebuttal not a single word was uttered' by Mr. Masood Leghari, Collector, A.W.I, and Muhammad Anwar Shah, R.W.2 and copies of mutations Exh.R.5 to R.7 (Pert Patwar) did not show whether the properties transferred through those mutations were agricultural, residential or commercial and the said documents were further deficient to reflect distance from the property in question observed that it was rightly not considered by the learned Referee Judge. It was further observed by the learned Judges in the High Court that the land in question was situated at a distance of an acre from the Town of Uch Sharif, and adjacent to the Post Office, Office of Town Committee, Tehsil Office, Octroi Post of the City Uch Sharif and residential colony, named as Shamas Colony, though situated outside the municipal limits at the time of acquisition i,e, 1989, yet having been subsequently included in the limits of Town Committee of Uch Sharif, vide Exh.P-4 and the location having been verified by the Local Commissioner, potential value of the land was much more than claimed by the appellants.
The learned Judges in the High Court were further of the view that though the Local Commissioner had assessed "market value" of the property in question at Rs,10,000 per marla but keeping in view the provision of section 23 of the Land Acquisition Act as well as other relevant factors it was fair to assess the same at Rs,4,000 per marla. It would be pertinent to mention here that criteria for determination of compensation of land has been laid down in section 23 of the Land Acquisition Act and it includes, inter-alia, the market value of the land at the date of publication of notification under section 4(1) of the Act, the damage sustained by the persons 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, or by reason of severing such land from his other land, or by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings, or if a person interested is compelled to change his residence or place of business, and it also includes the damages from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land, etc, meaning thereby that it is cumulative effect of all the factors involved and compensation cannot be assessed solely on the basis of the entries in the mutation effected at the relevant time '7. It would be pertinent to mention here that in the case of Murad Khan v. Land Acquisition Collector (1999 SCMR 1647) after scanning almost all the case law available on the subject, this Court had summarized the matters/factors required to be taken into consideration in determining the amount of compensation and it would be instructive to reproduce the same which read as follows:-- ' The data from which the market value of the land can be estimated is given in Rule 13 of the North-West Frontier Province Circular No, 54 issued presumably under section 55 of the Act.
(ii) The best method to work out the market value is the practical method of a prudent man laid down in Article 2, Qanun-e-Shahadat, 1984 to examine and analyse all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land.
' Subsection (1) of Section 23 of the Land Acquisition Act provides that, in determining the amount of compensation the Court shall take into consideration the market value, loss by reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, 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 the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition.
(iv) The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of it near about the date of notification under section 4(i) of the Land Acquisition Act. The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighbouring locality, the potential value of the land need not be separately awarded because such sales cover the potential value.
(v) The law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining the market value, classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value may be tremendously high because of its location, neighborhood, potentiality or other benefits.
(vi) While determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration.
(vii) Consideration should be had to all the potential uses to which the land can be put, as well as all the advantages, present or future, which the land possesses in the hand of the owners.
(viii) In determining the quantum of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction.
(ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser...This means that Court has to determine the value of the land in the open market at the relevant time on the assumption that the notification of. Acquisition did not exist.
(x) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the "past sales" should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as Court-witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in question, because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The "previous sale" of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired.
(xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value.
(xii) In cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act.
(xiii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted, should be taken into consideration.
(xiv) The phrase "market value of the land" as used in section 23(1), of the Act means "value to the owner" and, therefore, such value must be the basis for determination of compensation. The standard must be not a subjective standard but an objective one.
' Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration.
' It would also be worthwhile to mention here that the principles laid down in the case of Murad Khan (supra), were reiterated and reaffirmed by this Court in the case of Province of Punjab v.
Jamil Ahmad Malik (2000 SCMR 870). In addition, the following reported judgments may also be referred to in this regard:-
(1) Province of Sindh v. Ramzan and others (PLD 2004 SC 512)
(2) Muhammad Saeed v. Collector, Land Acquisition (2002 SCMR 407)
(3) Nisar Ahmad Khan v. Collector, Land Acquisition (PLD 2002 SC 25)
(4) Collector, Land Acquisition v. M. Ayub Khan (2000 SCMR 1322)
(5) Province of Punjab v. Abdul Majeed (1997 SCMR 1692)
(6) Pakistan Burmah Shell Ltd. v. Province of N.-W.F.P. (1993 SCMR 1700)
8. As regards the contention that Local Commissioner could not have been appointed without application by any party and that the report furnished by the Commissioner could not have been taken into consideration in determining the amount of compensation by the Referee Court, it may be pointed out here that legally there is no impediment in appointing a Local Commissioner when the evidence brought on record alone is not capable to resolve the controversy.
' It may be mentioned here that in any suit, in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profit, or damages or annual net profits, the Court may, under Order XXVI, Rule 9, C.P.C., issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court and the application of this method has not only been appreciated in determining the amount of compensation but approved in the case of Sarhad Development Authority v. Land Acquisition Collector (1998 SCMR 730) and Muhammad Saeed and others v Collector, Land Acquisition (2002 SCMR 407). Reference in this regard may also be usefully made to the following reported judgments:--
(1) Mian Sarfraz Gul v. Collector, Land Acquisition (2005 CLC 710)
(2) Syed Aolad Ali Shah Gillani v. Government of Azad J&K (1998 CLC 1779)
(3) Muhammad Saeed & others v. Collector, Land Acquisition (PLD 1996 Peshawar 22)
(4) Collector, Land Acquisition, Peshawar v. Rokhan and others (PLD 1995 Peshawar 78)
Since primarily it was the duty of the Court to determine the amount of compensation, therefore, a recourse to Order XXVI, Rule 9, C.P.C. E could have been made even without an application by any party. The contention, therefore, is devoid of force.
9. It may be noted here that in Civil Appeal No, 1331 of 2006, which arises out of R.F.A. No,52 of 1993, both the courts below after considering the evidence produced by the parties particularly statements of Malik Ghulam Rasool, A.W.I, Malik Dodha A.W.2, Allah Wasaya Malik A.W.3, Murid Ahmad Khan, respondent, who appeared himself as A.W.4, and perusing the relevant documents i,e, copies of the Sale Deeds particularly Exhs.P-3, P-4, and P-6, and keeping in view the fact that the property in question was situated in the suburbs of Uch Sharif Gillani City came to the conclusion that amount of compensation of the land at the rate of Rs,1,000 per marla was fair, therefore, there appears to be no infirmity in the findings of the courts below.
10. In Civil Appeals Nos. 1332 to 1335 of 2006 and 1466 to 1468 of 200.6, which arises out of R.F.As. Nos 53 to 56 of 1993, too, the Referee Court as well as the learned Judges of the High Court after evaluating the oral evidence i,e, the statements of A.W.1 Khawaja Imtiaz Hussain, A.W.2'Muhammad Yousaf, AW-3 Sadiq Hussain and A.W.4 Akhtar Ali Shah one of the land owners, and after perusing the documentary evidence, particularly Exhs.A-1, A-2 and A-3, and also after evaluating the evidence produced by the WAPDA, i,e, statement of R.W.1 Muhammad Yaqoob and the documents Exh.R-2 to R-18 came to the conclusion that the land in question was situated in the suburbs of the Uch Sharif city and compensation of the land assessed at Rs,1,000 per marla by the Referee Court was fair and just and thus maintained the same, therefore, we see no infirmity in the judgments of both the courts below.
11. Since in these cases the learned Judges in the High Court after fully appreciating the entire evidence available on record have assessed the sale price of the lands in question and the findings have also the support of the material placed on record and while determining the amount of compensation the Courts below have also considered potentiality of the land in question and likelihood of its development and improvement, therefore, the impugned judgments, in our view do not suffer from any legal infirmity, so as to call for interference by this Court.
12. Upshot of the above discussion is that these appeals being misconceived are hereby dismissed.
No order as to costs.