' ZUBDA-TUL-HUSSAIN, J.--- This regular first appeal under section 54 of the Lan Acquisition Acquisition Act, 1894 is directed against the judgment and decree d ted 31-10-2000, passed by the learned Referee Court/Senior Civil Judge, Rahim Yar Khan whereby the reference under section 18 of the Land Acquisition Act was allowed and the rate of compensation was enhanced as against compensation determined in the Award of the Land Acquisition Collector, Rahim Yar Khan.
2. The WAPDA initiated proceedings for acquisition of the land for the construction of B.D,I. Drain in Chak No,227-P, Tehsil and District, Rahim Yar Khan, vide Notification under section 4 of the Land Acquisition Act, 1894, dated 9-12-1981. The acquisition was part of the Scarp Scheme No,VI meant for reclamation of the land and to save it from wastage due to water logging. After taking necessary proceedings the Award No,14 was issued on 28-7-1983. The average cost of the land for the period 9-12-1980 to 8-12-1981 was estimated by the District Collector, Rahim Yar Khan, at the rate of Rs,4000 per acre for the cultivated land and Rs,1000 per acre for the uncultivated land along with 15% compulsory charges and the compound interest at the rate of 8% per annum. Ultimately the land was acquired and the possession was also taken by the appellant WAPDA. In all, the land measuring 27 Kanals, 2 Marlas was acquired out of which the total land belonging to the respondents was 16 Kanals, 1 Marla.
3. Feeling dissatisfied with the Award the respondents challenged the same by filing a reference under section 18 of the Land Acquisition Act before the Referee Court i,e, the learned Senior Civil Judge, Rahim Yar Khan on 15-1-1984. The respondents had contended that the cost of the land was not correctly determined and fixed by the Land Acquisition Collector. They demanded cost of the land at the rate of Rs,40,000 per acre.
4. On the basis of the pleadings of the parties issues were framed, the evidence was recorded and ultimately the learned Referee Court enhanced the amount of the Award from Rs,4000 per acre to Rs,30,000 per acre. The compulsory acquisition charges and the compound interest were maintained.
5. The legality and propriety of the impugned judgment has been challenged on a number of grounds, the major objection being that the learned Referee Court has violated the provisions of section 23 of the Land Acquisition Act and Rule 10(iii)(c) of the Punjab Land Acquisition Rules, 1983.
In this behalf it has been stated that the law has provided a specific basis for computation of the compensation, in that the market value of the land at the date of the publication of the Notification under section 4 of the Land Acquisition Act shall be taken into account with specific reference to the average market price of similar kind of land similarly located and on the basis of the price prevalent for the period of 12 months preceding the date of the publication of the Notification under section 4 (ibid) but the learned Referee Court stepped much ahead of the relevant period and made the basis of the determination of the compensation those sales which were effected much later i,e, in the years, 1989, 1990 and 1992. It has also been contended that the Reference was time- barred as the respondents were present or represented before the Collector at the time when the Award was announced and in view of the proviso (a) to subsection (2) of section 18 of the Land Acquisition Act the Reference had to be filed within six weeks from the date of the Collector's Award but the same having been filed months after was barred by the time.
6. It cannot be disputed that for determining the prevalent market value the crucial period which could be taken into account for the purpose of sales of similar land was 9-12-1980 to 8-12-1981 but it also cannot be denied that five years average price or as was in the present case the average price of the land for one year is not the only criterion for determining the compensation against the acquisition of the land. Primarily section 23 of the Land Acquisition Act, 1894 lays down mode and method for determining the compensation and the matters to be considered in that behalf. This is further supplemented by Rule 10 of the Punjab Land Acquisition Rules, 1983. These provisions have a reference to the market value of the land on the date of publication of the Notification under section 4 of the said Act but as already stated, the mere average price of the land lying in the vicinity is not an exhaustive measure for determining the compensation. There are other considerations enumerated in the law which are deeply relevant for deciding the question of compensation.
7. The words "market value" as such have not been defined in the Land Acquisition Act but by common sense and the ordinary meanings it would imply the price which a buyer would be prepared to pay and seller ready to accept the same if they voluntarily enter into the transaction.
Thus the Refere Court has to determine the value of the land in a broader perspective on the basis of the considerations as would be prevalent in the, open market at, the relevant time. The obvious inference that follows from this position is that only the past sales are not to be C taken into consideration but the value of the land without its potentiality as well has to be determined by examining the evidence produced before the Court. The dictum laid down in the case of Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and others 1999 SCM R 1647 provides necessary guidelines in this behalf. The observations of the Honourable Supreme Court in the case of Malik Hadi Hussain and others v. Land Acquisition Collector PLD 2008 SC 386 can also be referred wherein it was held that while determining the amount of compensation of acquired land a Court has to consider evidence brought on record by the parties and, further, Land Acquisition Collector while determining the compensation has also to consider the potential and future perspective features of land in addition to one year average. It was further noticed that while determining the value of the land acquired by the government and the price which the willing purchaser will give to the willing seller. Only the past sale should not be taken into account but the value of the land with all its potentiality may also be determined while examining the other facts.
8. The evidence available on record clearly shows that the acquired land by its classification was cultivable and the record gets mention of the fact that on both sides of the land there existed roads as well. There IS also some mention of the circumstances which may tend to show that the land was not a far fetched place totally devoid of civic character. It is thus obvious that the land deserved to be identified as a property some D thing more or over and above the usual agricultural land.
9. In the above context the learned Referee Court had a fine justification to go beyond the normal yearly average price as well as for taking into account consideration the mutations for the period other than those strictly falling within the ambit of one year preceding the date of Notification under section 4 of the Land Acquisition Act, 1894. From this point of view the mutations for the period from 1989 to 1992 have relevancy to show the potential of the land which could fetch much higher price than the one determined by the Award. A perusal of the said mutations shows that in the year, 1989 the price was about 16/17 times of the rate given in the Award. In the year, 1990 it was even more and had shooted upto 25 times higher rate. Almost same is the position shown by the other mutations. These observations, of course, do not mean to lay down that the price prevailing after a period of more than a decade can be made the basis for calculation of the average market value or the value of the compensation. The only fact which follows from these observations is that this evidence tends to show the future potentiality of the land to fetch much higher price. The learned Referee Court also did not enhance the compensation equivalent to these mutations but it only took the same into consideration for assessment of the fair price/market value as could have been prevailing for the disputed land at the relevant time.
10. The cumulative effect of all the factors and the evidence mentioned above is that the amount of Rs,30,000 per acre determined by the learned Referee Court as compensation for the land in question was just reasonable. The findings of the learned Referee Court in this behalf cannot be interfered with.
11. There is an objection of the appellant that the learned Referee Court while deciding the issues framed by it dilated upon the merits of Issue No,1 only and while giving an incompetent finding on issue No,2 had ignored the implications of Issues Nos.3, 4 and 5 which primarily were based on questions of law and could not be brushed aside on the excuse that no argument was advanced by the learned counsel for the appellant on these issues. The issue No,2 was framed on the objection of the appellant that the respondents were estopped by their conduct to file the Reference. The objection was particularly based on the contention that the respondents had participated in the proceedings of the Reference and had also accepted the result, The evidence on record, however, does not support this view because the statement of the DAVI clearly reveals that only one of the respondents had signed the Award. There was no other evidence to show that the petitioners had been duly served and they participated in the proceedings or they voluntarily accepted the Award. The objection of the appellants was therefore, rightly turned down by the learned Referee Court.
12. Issue No,3 was regarding the maintainability of the Reference in Form No,5. Issue No,4 covered the objection of jurisdiction of the learned Referee Court whereas issue No,5 was regarding the objection of limitation. The Reference having been filed in accordance with the terms contemplated by the law, no exception could be taken to the maintainability of the Reference. It is not understandable how the Referee Court presided over by the learned Senior Civil Judge was not vested with the jurisdiction to decide the matter in issue.
13. The objection regarding limitation was based on the allegation that the respondents were very much before the Collector during the proceedings of the Award and if they had any objection to it they could file the Reference under' Proviso A to subsection (ii) of section 18 which provides a period of six weeks for filing the Reference from the date of the Collector's Award. The fact of the matter, however, is that except Abdul Hamid none of the respondents was shown to be present before the Collector. The appellants also failed to lead tangible evidence to show their presence or representation before the Collector. If a reference is made to the statement of the D. W.1 it becomes crystal clear that none except Abdul Hamid was present or represented before the Collector.
14. Where the person making the Reference is not present or represented before the Collector his case is covered by proviso to the aforesaid subsection (ii) of section 18 which provides a period of six weeks from the receipt of notice from the Collector under section 12(2), or the period of six months from the date of the Collector's Award whichever, period shall first expire. There being no evidence for the service of the notice under section 12(2), the case of the respondents was covered by the second part of proviso (b) to subsection (2) of section 18 and the period of six months was available to them for filing the Reference. When computed accordingly, it is revealed by the record that the Award was given on 28-7-1983 while the Reference was filed on 16-1-1984, meaning thereby that it was filed within the prescribed period of six month. The objection, therefore, had no force and probably it was for this reason that the learned counsel for the appellants did not press Issues Nos.3, 4 and 5 before the learned Referee Court.
15. For what has been discussed above, this appeal has no force which is dismissed with costs.