Ch. Muhammad Ibrahim Zia, J.--This appeal with the leave of the Court has been addressed against the consolidated judgment and decree of the High Court dated 3.6.2011 whereby Appeal No, 93/2010 filed by Respondent No, 1 has been accepted whereas Appeal No, 140/2010 filed by the appellants herein has been dismissed.
2. Necessary facts for disposal of appeal are that the land measuring 6 marlas comprising Survey Nos, 201/187-202/187 and 182, situated at Mozia Patikah was awarded for the widening of Muzaffarabad, Neelum Road on 29.4.2009 under Award No, 01/2009. The compensation of the awarded land was assessed as Rs, 7,500/- marla for category 'B' and Rs, 4,000/- per marla for category 'C' plus compulsory acquisition charges. Respondent No, 1 filed a reference in the Court of Additional District Judge/Reference Judge Muzaffarabad, against Award Ho. 1/2009, for amendment/enhancement of the amount of compensation. The appellants herein contested the reference. After framing issues, the learned Reference Judge accepted the claim of Respondent No, 1, enhanced the amount of compensation as Rs, 100,000/- per marla along with 15% compulsory acquisition charges. The learned Additional District' Judge further directed the 8 marlas instead of 6 marlas land is proved to have been untilized in the construction of road, therefore, the respondents are bound to issue award to the extent of remaining 2 marlas land. Respondent No, 1 challenged the judgment of Reference Judge before the High Court by way of appeal in which he claimed for further enhancement in the amount of compensation. The appellants herein also filed appeal against the judgment of Reference Judge and prayed for setting aside the same, The learned High Court accepted the appeal filed by Respondent No, 1, enhanced the amount of compensation and directed the appellants to pay Rs, 400,000/- per marla along with 15% compulsory acquisition charges whereas the appeal filed by the appellants herein has -been dismissed. Feeling aggrieved, the appellants challenged the judgment of the High Court dated 3.6.2011 through the instant appeal.
3. Sardar M. R Khan, the learned Additional Advocate-General, after detailed discussion of facts challenged the propriety of the impugned judgment of the High Court on the ground that the judgment suffers from misreading and non reading of evidence. The respondent has failed to bring on record any legal evidence to substantiate his claim of market value of the acquired property. He further submitted that according to statutory provisions, especially after amendment in The Azad Jammu and Kashmir Land Acquisition-Rules, 1994, (hereinafter to be referred as Rules, 1994), the Collector is under the legal obligation while assessing the market value of the land to assess the same on the criteria and conditions laid down in Rule 10. He further submitted that it is also obligatory for the Collector Land Acquisition to assess the market value while keeping in view, the classification of the land and its location. He submitted that the Collector Land Acquisition has already assessed the market value quite in disregard of the law. Thus, by accepting this appeal, setting aside the impugned judgment of the High Court as well as Reference Judge, the value of the acquired property be assessed according to the statutory provisions.
4. Mr. Asghar Ali Malik, Advocate, the learned counsel for the respondent, while controverting the arguments of the learned counsel for the appellants forcefully defended the impugned judgment and submitted that the same is passed after due appreciation of material brought on record. It is the constitutionally guaranteed fundamental right of every citizen that in case of acquisition of property, he should be compensated adequately according to prevailing market value. The acquired property is of commercial nature. The respondent has proved the market value of the property at the relevant time as more than Rs, 400,000/- (four lacs), per marla, thus, the impugned judgment has rightly been recorded which does not call for interference.
5. Keeping in view the important legal proposition raised in this case, some eminent lawyers were also requested to assist the Court on the mode of determination of compensation by the Collector Land Acquisition. Particularly, the points raised by the learned counsel for the appellants that the Collector Land Acquisition is under statutory obligation to determine the compensation following the condition of Rule 10 of the Azad Jammu and Kashmir Land Acquisition Rules, 1994.
6. Mr. Abdul Rashid Abbasi and Raja Muhammad Hanif Khan, the eminent senior lawyers assisted the Court on the legal point. Both of them unanimously submitted that the provisions of Rule 10 of the rules, 1994 deals with the peculiar situation which is mentioned in Section 17 of the Land Acquisition Act, 1984, (hereinafter to be referred as the Act). According to scheme of law, in the case of eventualities mentioned in Section 17, the Collector has to calculate the estimated price of the land according to yardstick mentioned in this rule. The provision of this rule does not relate to the Collector Land Acquisition while conducting the proceedings of award to determine the market value of the property for acquisition. 'For the purpose of determination of market value, criteria has been laid down under Sections 23 and 24 of the Act. They further argued that even otherwise the rules are subordinate legislation which cannot override or control the provisions of parent law. The Collector Land Acquisition is under legal obligation to assess the market value according to the parameters of Sections 23 and 24 of the Act.
7. We have heard the arguments advanced at bar by the learned Advocates and perused the record of the case. First of all we would like to resolve the vital legal point, raised on behalf of the appellants that the Collector Land Acquisition is bound to determine the market value of the property, sought to be acquired according to Rule 10 of the Rules, 1994. For proper appreciation of this legal proposition, the whole scheme and spirit of the Land Acquisition Act shall have to be kept in mind. Section 17 of the parent law (Land Acquisition Act) does not speak of estimation or calculation of the price of the land sought to be acquired in ordinary manner. For convenience, it will be useful to reproduce the amended Section 17 of the Act, which reads as under:-- "17. Special powers in cases of urgency.--(1) In cases of urgency whenever the Commissioner so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, subsection (1) take possession of any waste or arable land needed for public purpose or for a Company. Such land shall thereupon vest absolutely in the Government, free from all encumbrances: Provided that the Commissioner shall not issue any direction to the Collector under this sub- section unless the department of Government, the local authority, or company, as the case may be, for which the land is being acquired, has first deposited the estimated cost of acquisition of such land as determined by the Assistant Commissioner of sub=division keeping in view the provisions of Sections 23 and 24.
(2) Whenever, owing to any sudden change in the channel of any navigable, river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, or when ever owing to a similar emergency it becomes necessary for the Commissioner to acquire the immediate possession of any land for the purpose of maintaining traffic over a public road, the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the Commissioner enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours' notice of his intention . so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.
(3) In every case under either of the preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops- and trees (if any) of such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in Section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.
(4) In the case of any land to which, in the opinion of the Commissioner the provisions of sub- section (1) or sub-section (2) are applicable, the Commissioner may direct that the provisions of Sections 5-A and 6 shall not apply, and, if he does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under subsection (1) of Section 4."
A careful perusal of this statutory provision reveals that only in case of urgency or extraordinary situation and eventualities mentioned in this section where taking of possession of the property to be acquired is necessary for public purpose or company, the estimated cost of acquisition shall be determined by the concerned authority, to be deposited.-
8. It is also important to mention here that the Government is empowered to make rules under Section 55 of the Land Acquisition Act but the rules have to be made in consistence with the Act and not in derogation. Section 55 speaks as following: "Power to make rules.--(1) The Provincial Government shall have power to make rules, consistent with this Act for the guidance of officers In all matters connected with its enforcement, and may from time to time alter or add to the rules so made."
Thus, it is obviously clear that the rules made under the provision of the Act have to be governed and controlled by the provision of the Act and if any rule is not consistent with the provision of the Act, it will have no force and shall be deemed as not existing. It need not be discussed in detail that the rules are made to carry out the purpose of the parent law or Act. The Rules, 1994 have been made to carry out the purpose including the eventualities mentioned in Section 17 of the Act.
9. A juxtapose examination of the Rules and Act leave no doubt in our minds that Rule 10 has been framed and subsequently amended to carry out the purpose of Section 17 of the Act and it is only confined to this extent. It has no overriding or controlling effect on the provisions of Section 23 and 24 of the Act. The Collector Land Acquisition has to follow the procedure and mode prescribed in the Act and for determination of the market value, the criteria is incorporated in Section 23 and 24 of the Act.
10. The provision of Rule 10- has no nexus and application for determination of market value for the purpose of award, therefore, the argument that the Collector Land Acquisition has to determine the market value according to the parameters of Rule 10 of the Land Acquisition Act, is not correct appreciation of law.
11. Now we come to the facts of the case in hand. The respondent's land has been acquired through Award No, 1 of 2009 dated 29.4.2009. The Collector Land Acquisition Pathika (Naseerabad), Muzaffarabad, issued a notification for acquisition under Section 4 of the Act on 26.11.2008. The Collector Land Acquisition, after issuance of notices to the land owners, failed to proceed further according to law. A perusal of record reveals that the Collector Land Acquisition referred the matter for determination of the value of the land to the Collector District (Chairman Price Assessment Advisory Coma/it-tee). The committee, in its meeting dated 6.12.2008 assessed the price, category wise. According to this assessm ent, the price of land falling under category "A" was assessed as Rs, 10,000/- per marla, category "B" as Rs, 7,500/- per marla and category ''C" as Rs, 4000/- per marla.
12. The perusal of award reveals that the Collector Land Acquisition, either is ignorant of law or has deliberately failed to act according to law and apply the judicial mind. We are in agreement with the finding recorded by the learned Reference Judge in this regard which speaks as following:--. {{URUD TEXT}} Thus, we are constrained to observe with heavy heart that the conduct of the Collector Land Acquisition is totally against law and regrettable which resulted into miscarriage of justice.
13. The Act contains a comprehensive mode for determination of market value of the property under acquisition, which requires independent application of mind by the Collector Land Acquisition. It is century's old law and the superior Courts in this regard have enunciated the celebrated principle of law which is now almost settled that the property of a citizen can only be acquired for public purpose or company in lieu of adequate compensation which means the prevailing market value. The Courts have laid down a comprehensive yardstick for determination of the market value, the price of property which in open market, a willing seller and purchaser agree for transaction. In the case in hand, the Collector Land Acquisition has totally failed to apply the judicial mind, or take into consideration the matters enumerated under Section 23 and 24 of the Act for determination of the market value of the land. The total process adopted for assessm ent of the market value, as it is depicted from award is consisting of only three lines which reads as -following:-- {{URUD TEXT}}
14. The mode adopted by the Collector Land Acquisition is totally in derogation of law and such conduct of a public officer amounts to clear misconduct, inefficiency and misuse of the process of law.
15. Now the question arises whether in this state of affairs, the matter should be referred to Collector for de novo proceedings according to spirit of law. Although, the mode adopted by the Collector Land Acquisition demands for such but this Court has to do justice with both the parties, especially the litigant public. We are conscious of the fact that due to remand of the matter, the concerned interested parties will have to face unbearable agony of litigation for an indefinite period which may consume decade's time, the natural consequence of which will be justice delayed justice denied. Therefore, with the above observations and showing our serious concern with heavy heart, for the ends of justice, we have to decide the matter burdening ourselves with extraordinary labour of scrutiny of the record instead of remanding the case to the Collector for de novo proceedings.
16. As it has been noted hereinabove, that due to failure of the Collector Land Acquisition to comply with the provision of the Act for determination of the value of the land no material has been brought on record. Therefore in such state of affairs we will have only to rely upon the proof and evidence produced by both the parties before the reference Court. The respondent, land owner, in the reference Court has produced documentary and oral evidence. He has claimed Rs, 400,000/- per marla as compensation on the ground that the acquired property is commercial in nature. In support of his contention, he has tendered in evidence the certified copies of the sale-deed of the adjoining villages. According to these documents (Exb. PE & PF), a piece of land measuring one marla situated in village Karka Chamitta has been transacted for a consideration of Rs, 300,000/- (three lacs) vide sale deed registered on 22.11.2008 whereas one marla piece of land situated in village Ghundi has been sold for consideration of Rs, 150,000/- on 23.1.2008. These documents have been tendered in evidence by the respondent to vendee and vendor of the property, who have appeared as witnesses. The contents of these documents have also been testified by Naib Tehsildar and Partwari Halqa. All the witnesses have stated that the acquired property is of commercial nature and situated at main road. The evidence produced by the respondents remained un rebutted, even the material deposition made in examination-in-chief has not been controverted in the cross-examination. The only witness produced by the appellants is one Ch. Muhammad Saghir, SDO, who states that for determination of price, the Government has constituted a price assessm ent committee. He has not uttered a single word regarding the market value of the property rather he has stated that :-- {{URUD TEXT}}
17. According to the celebrated principle of law, the Courts have to decide the civil cases on the strength of the proof of the parties. If the evidence remains un-rebutted, it always under the provisions of Article 118 of Qanoon-e-Shahadat Order, 1984 read with Order XVIII of the Civil Procedure Code, is treated as sufficient proof. In a case titled Shah Zaman & 9 others vs. Azad Government of the State of Jammu and Kashmir through Chief Secretary Muzaffarabad & 59 others, reported as [1993 MLD 1186], Division Bench of the Azad Jammu and Kashmir High Court observed as under:-- "15. Before discussing the evidence, it seems to be important to mention here that Muzaffarabad city is situated on the banks of two rivers, namely, Neelum and Jhelum. This city is covered by hills of different heights. On account of its importance, as being capital of Azad Kashmir, the city is always found short of land. The land which has been acquired for the construction of Stadium being plain, could be presumed as God's Gift as a plain land to this magnitude is hardly available on hilly stations like Muzaffarabad City. The land in question is adjacent to Noral area which is the most prestigious of Muzaffarabad city as there stands constructed file Prime Minister and President's Houses and residential colony for the high-ups of the Azad Jammu and Kashmir Government. In this view of the matter, while discussing the evidence led in this case, the above mentioned features would have to be taken into consideration. The claimants-appellants besides oral evidence have produced documentary evidence, whereas only the Director Sports appeared on behalf of the respondents and got his statement recorded. In civil matters when a party has adduced its evidence to discharge burden of proof then it is for the other party to lead evidence in rebuttal. In the present case, only Director Sports appeared for the respondents and no material evidence was given by him. In this view of the matter, the evidence led by the appellants in determining the amount of compensation on the dace of publication of the Notification under Section 4 of the Act is to be accepted as correct. This view finds support from PLD 1980 Lah. 145 wherein at page 151 it has been observed as under: -- "The onus of an issue in a civil case is not permanently fixed but is constantly shifting, the moment some evidence is placed on record, this shifts the onus on the other side who would fail if he is unable to rebut."
(underlining is ours)
In the same judgment, while discussing the admissibility of the copies of the sale-deed for the purpose of determination of the market value, it is observed that: "16. We are aware of the sale-deeds which have been placed on the file wherein a very small portion of land was transferred through sale-deeds. We are also alive of the fact that only those sale-deeds could be taken into consideration while assessing the market value of the land in dispute which were executed during the period when the notification under Section 4 of the Act, was issued. Exh. PB is a sale-deed which was executed on 1st of January 1986 whereby land measuring one kanal was transferred for a consideration of Rs, 100,000/-, Exh. PF is another sale- deed which was executed on 7th of July, 1986 with regard to the land measuring one kanal one marla, one sarsai and 18 feet for a consideration of Rs, 1,78,100. There are some other sale-deeds too, but those either pertain to the year 1985 or 1988..."
Thus, in the light of hereinabove discussed evidence and the principle of law, we are left with no option except to resolve the question of determination of compensation according to the evidence brought on record by the parties, especially non-rebutted evidence produced by the respondents.
18. Another aspect of the matter is that keeping in view the overall scheme of law dealing with the position of property, what would be the prime sole criteria for determining the compensation.
According to the centuries old celebrated principle of law, if it could be summarized in one word, is it is the prevailing value of the property.
19. While dealing with the question of market value, in a case titled District Welfare Officer, Cuntur vs. Pillala-marri Ramakrishna Somayajuly and others, reported as AIR 1963 Andra Pradesh 328 it is observed as under:-- "...The compensation must be determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser. The best evidence to prove what a willing purchaser would pay for the land under acquisition would be the evidence of genuine sales effected at or about the time of the notification for acquisition either in respect of the land or any portion thereof of the sale of lands sprecisely parallel in all its circumstances to the land , under compulsory acquisition. The onus of proving the value of land acquired lies upon the claimant and to establish the value and selling prices of neighbouring lands, it is necessary for him to adduce numerous or at least sufficiently numerous instances of sales of land in similar condition and use for similar purposes in the neighbourhood."
Whereas while dealing with the question of market value, in a case titled Azad Govt. & others v.
Muhammad Anwar Shah, reported as [2000 SCR 391], following three cases have been referred:-- "In case reported as West Pakistan WAPDA v. Mst. Hiran Begum [1972 SCMR 138], it has been held that the best guide to fix the market value of the land is the price on which the lands were sold in the adjoining village.
In case reported as District Welfare Officer, Gunter v. Pillalamarri Ramakrishna Somayajuly and others [AIR 1963 Andhra Pradesh 328], it was held that while dealing with the market value of the land the considerations envisaged under Section 23(1) of the Land Acquisition Act should be kept in mind and those stipulated under Section 24 of the said Act must be excluded from consideration."
In case reported as Deputy Commissioner Karachi v. Abu Bakar and others [PLD 1972 Karachi 128], it has been held that the price fetched by sale of the adjoining land closest in point of time to the notification issued under Sections 4 and 6 of the Land Acquisition Act would furnish a reliable guide for determining the market value of the suit land."
We have also benefited from the wisdom of a scholarly judgment of the apex Court of Pakistan, handed down in Sindh Bench, in the case titled Province of Sindh through Collector of District Dadu and others is. Ramzan & others, reported as [PLD 2004 Supreme Court 512], in which the question of market value, especially with reference to acquisition of land has been discussed in detail. Relevant Paragraphs 9. and 10 of the judgment are reproduced below:-- "9. This Court had also taken notice of the fact that the announcement of award is some times unreasonably delayed after the issuance of Notification under Section 4 of the. Act. In Malik Aman's case, the period that had elapsed was seven years. Obviously any escalation in the value of property during such period is a potential value of land which must be taken into consideration.
10. Similar view was taken by this Court in Land Acquisition Collector Abbottabad v. Muhammad Iqbal, 1992 SCMR 1245 at 1255-K). In the case of Pakistan Burmah Shell (1993 SCMR 1700), it was once again reiterated that consideration of market value at the time of Notification under Section 4 of the Land Acquisition Act was merely one of the modes for ascertaining the market value and was not absolute yardstick for assessment of compensation. Numerous matters to be considered for determining compensation were elaborately laid down by this Court in Murad Khan's case (1999 SCMR 1647) which was again relied upon in Nisar Ahmed's case (PLD 2002 SC 25). The crux of the matter is that mere classification or nature of land may be taken as relevant consideration but not as absolute one. An area may be `banjar' or `Baranr but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits. All these factors, therefore, cannot be ignored."
20. In view of the peculiar facts of this case, the respondent has brought on record un-rebutted piece of evidence regarding market value of the land situated in adjoining villages. According to one sale-deed executed at the nearest time of the notification under Section 4 of the Act, the acquired land was sold, for a consideration of Rs, 300,000/- per marla whereas through another sale-deed which has been tendered in evidence, the price of one marla land is mentioned as Rs, 1,50,000/-.
In our opinion, the enhancement of the compensation by the learned High Court up to Rs, 400,000/- (four lacs), per marla appears to be not fixed on the basis of evidence produced by the parties. The respondent, owner, himself has brought on record two sale-deeds which are of the adjoining villages and have been transacted during the period, nearest to the publication of the notice under Section 4 of the Act. Thus, according to these document, the average price of both the sale-deeds becomes 2,25,000/- per marla. In our view, by taking into consideration the whole evidence, it appears to be reasonable to fix the market value of the acquired land as Rs, 2,25,000/- per marla. Therefore, while accepting this appeal the impugned judgment and decree of the High Court are modified to the extent of per marla rate of compensation of the awarded land in the above terms, without any orders of costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.