' RAJA SAEED AKRAM KHAN, J. --- This appeal, by leave of the Court, has been directed against the judgment and decree passed by the High Court on 13.6.2011, whereby the appeal filed by the appellants, herein, was dismissed.
2. The brief facts giving rise to the instant appeal are that land measuring 49 kanals, 2 marlas, comprising khewat No, 17, village Onah, Tehsil Dadyal, was acquired for the raising of Mangla Dam Project vide award No, 54 of 2008 dated 12.6.2008 by the Collector, Land Acquisition. The compensation of the Land awarded in respect of the kinds of land, i,e,, hail maira awal and ghair mumkin. Was assessed @ Rs, 5,20,000/- , Rs 4,60,000/- and Rs 1,20,000/- per kanal respectively.
Being dissatisfied with the said award, the appellants moved an application before the Collector, Land Acquisition, for referring the same to the Reference Court, which was accordingly referred to Reference Judge, Mirpur. It was averred in the application that the Collector, Land Acquisition, awarded the land at very low rates and failed to assess the price according to the market value prevailing at the time of acquisition. It was prayed that the compensation @ Rs, 60,00,000/- per kanal along with 15% compulsory acquisition charges may be paid. After hearing the reference, the learned Reference Judge accepted the reference and enhanced the compensation to the tune of Rs 5,70,000/- , Rs, 5,00 900/- and Rs 1,50,000/- Per kanal for the kinds of land, . i,e,. Hail, maira awal and ghair mumkin, respectively along with 15% compulsory acquisition charges, vide judgment and decree dated 7.9.2009. Dissatisfied from the said judgment and decree of the Reference Judge, two appeals were preferred before the High Court: one by the appellants for enhancement of the compensation while the order by WAPDA for reduction of the enhanced amount. The High Court, after hearing arguments, dismissed both the appeals vide impugned judgment and decree dated 13.6.2011. This judgment and decree of the High Court have been assailed through instant appeal.
3. Mr. Imtiaz Hussain Raja, Advocate, the learned counsel for the appellants, has argued that the judgment and decree passed by the High Court are against law and the facts of the case. The High Court failed to appreciate the record available in its true perspective. He urged that the learned High Court, while dismissing the appeal, erred in law while not taking into consideration that the Collector, Land Acquisition, as well as the Reference Judge has not kept in mind the principles laid down by the apex Court for the assessment of the market value of the land. He contended that concrete evidence was produced in support of the claim of the appellants but the Courts below have not given any weight to it which is an illegality on the part of both the Courts below. The learned counsel further submitted that it is also the matter of record that in rebuttal no evidence was produced, therefore, the Collector, Land Acquisition was left with no option except to accept the price claimed by the appellants. He further contended that both the Courts below have not taken into consideration the provisions of section 29 of the Land Acquisition Act according to its spirit which is a misreading and non-reading of evidence on the face of the impugned judgments.
He lastly argued that both the Courts below failed to take into consideration the potential value of the land as the same is situate near the road which was one of the vital considerations while awarding compensation.
4. On the other hand, Ch. Muhammad Jamil, Advocate the learned counsel for the respondents, has strongly controverted the arguments advanced by the learned counsel for the appellants while submitting that the judgment and decree passed by the High Court are perfect and legal, therefore, no interference is required by this Court. He submitted that there are concurrent finding of both the Courts below, who have scanned the evidence available on the record in a proper manner and awarded the compensation accordingly. He further argued that the appellants failed to point out any misreading or non-reading of evidence which is basic ingredient for interference in the concurrent findings recorded by the Courts below. The learned counsel submitted that the appellants failed to prove the price of the land according to their claim. He lastly submitted that the point which was not raised before the lower forums cannot be allowed to be raised for the first time before this Court.
' We have considered the arguments of the learned counsel for the parties and perused the record minutely. The land was acquired for the purpose of Mangla Dam Raising Project and in this regard notification under section 4 of the Land Acquisition Act was issued on 28.11.2005. The compensation of the land for the kinds as hail, maira awal and ghair mumkin was assessed by the Collector, Land Acquisition, @ Rs, 5,20,000/-, Rs, 4,60,000/-and Rs, 1,20,000/- per kanal respectively which was enhanced by the Reference Judge on the application moved by the aggrieved persons under section 18(3) of the Land Acquisition Act. The claim of the appellants is that the land is question is highly valuable and situated near the road, therefore, it was the duty of the Collector, Land Acquisition, to examine its potential value while determining the compensation. This fact has also not been taken into consideration by the Reference Judge as well as the High Court.
6. Before proceeding further, it may be observed that the basic principle laid down by the apex Court of Pakistan and the apex Court of the State of Azad Jammu and Kashmir is that the land is not to be valued merely by reference to the use to which it is being put at the relevant time, but also by a reference to the use to which it is reasonably capable of being put in future; and the market value, is the potential value of the property at the time of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time. The price of the Land acquired had to be fixed in accordance with the aim and rule that willing buyer was ready to pay and willing seller was prepared to received the price so fixed for whole of the land, had to be kept in view. In this regard guidelines can be taken from a case titled Ch. Salam Din Vs. Azad Government of the State of Jammu and Kashmir through its Chief Secretary Muzaffarabad and 4 others [PLJ 2001 SC (AJK) 123], in which it has been observed as under:--- "7. It is indeed correct that the sale-deeds of small portions of land are normally not a relevant consideration for enhancing the amount of compensation as they are used for commercial as well as residential purposes. In a case reported as Faiz Akbar Khan and others v. Azad Government and others [1996 SCR 132] it was observed by this Court as follows:- ' It may be pointed out here that admittedly the land acquired is situated near Hajira Town, where the land can be also utilized for various commercial purposes. Even the learned counsel for the Government has argued that as the sale-deeds adduced in evidence by Faiz Akbar Khan and others pertain to the lands which were either purchased for the construction of shops or private buildings; the same are not good guide for assessing the market value of the Land in question. It may be pointed out that while assessing the market value, the land is not to be valued merely by reference to the use for which it was being made at the relevant time but also the use to which it can reasonably be put in future.' "
' Again in paragraph 9 of the above referred judgment it has been held as under:- "9. Even if we discard the evidence of sale-deeds relating to small portions of land to form basis for enhancement of compensation, we may point out that it has been held by this Court in numerous cases that the potential value of the land acquired to which it can be put into use in future and the locality of land where it is situated are some of the relevant considerations for determining the market value of the land. In our considered view the trial Court advanced cogent reasons in determining the market value of the land by observing that acquired land was situated on Neelum Valley road and because of its location and the potential use to which it can be put into in future.
The trial Court relied upon the evidence of witnesses who were unanimous on the point that the land acquired was situated adjacent to Pattikha Bazar and was of better quality than the land situated at Balsary. In the judgment passed by the District Judge, Ex.PA, the land was acquired in 1988 but the compensation amount was enhanced to the tune of As 56,000/- per kanal. The trial Court also observed that the sale-deeds Ex. PC and PB were executed in 1983 and 1993 respectively whereas sale-deed Ex. PD was executed on 27.12.1987. Since these sale-deeds were executed prior to the acquisition of. Therefore they could be considered for determining the market value of and in question but as observed earlier even if we discard the sale-deeds of small portions of land for determining the market value of land in question, there is other sufficient material on record, i,e,, the judgment of the District Judge, Ex.PA, the findings recorded by the trial Court that the land in question was situated on the Neelum Valley road and it had the potential to be put into a better use in future. Moreover, all the witnesses produced by the appellant were unanimous on the point that the land in question was situated on the road side near pattika Bazar. The above evidence was further supported by the statement of Ch. Salam Din, appellant, himself that he wanted to utilize the land in question for commercial use and for that purpose he had even raised the construction of some shops which shows that the market value fixed by the trial Court suffers from no illegality or infirmity as pointed out by the learned Counsel for the respondents."
' The apex Court of Pakistan has elaborately laid down the criteria for determination of compensation in a case reported as Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another [1999 SCM R 1647] in the following terms:--- "13. Section 23 of the Acts lays down, by way of criterion, that 'market value' of land on the date of publication of notification under section 4(ibid) would be the amount of compensation. The expression 'market value' has not been defined in the Act. But there is considerable case-law on the point encompassing the period of about time decades in which the expression in question has come to assume almost definite meaning. In this judgment we would, however, refer to a number of very important cases in which the expression 'market value' occurring in section 23 (ibid) has been judicially construed by various High Courts and even the Supreme Court of Pakistan.
According to these judgments the following matters are to be taken into consideration in determining the amount of compensation:---
(i) 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 analyze 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.
(iii) Subsection (1) of section 23 of the and 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 3 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(1) 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 neighboring locality, the potential value of the land need not be separately awarded because such sales cover the potential value.
(v) It is obvious that 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) According to well-settled principle, 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 hands 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 reasonable 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 that 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 sales' of the land, cannot, therefore, be always taken to be an accurate measure for 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) It is a well-settled law that 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 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 objection 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."
' In another case titled province of Punjab through Collector, Attock v. Engr. Jamil Ahmed Malik and other [2000 SCM R 870], it has been held as under:--- "16. In the case of Province of Punjab through Collector, Bhawalpur and other v. Col. Abdul Majeed and others (1997 SCM R 1692), the following principles of law were laid down for assessing the future prospects of the land acquired under the Land Acquisition Act, 1894 in terms of section 23:
(i) That an entry in the Revenue Record as to the nature of the land may not be conclusive, for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable for becoming Chahi land.
(ii) That while determining the potentials of the land, the use capable of being put, ought to be considered.
(iii) That the market value of the land is normally to be taken as existing on the date of publication of the notification under section 4(1) of the Act but for determining the same the price on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years back may be considered including other factors like potential value etc. ' Similar view prevailed in the cases titled Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner Abbottabad and other [1991 SCM R 2164] and Market Committee, Kanganpur through Administrator v. Rayyat Ali and other [1991 SCM R 572].
7. It may be observed that it is now well settled that one year's average sale price of the land in the vicinity preceding the date of issuance of notification under section 4 of the Land Acquisition Act is only one of the relevant factors for consideration in determining the market value of the land acquired but it alone cannot be adopted as the basis for assessment of the potential value of acquired land at the higher rate. Reliance can be placed on an unreported judgment of this Court titled Maqsood Bibi and others v. Collector Land Acquisition and others [Civil Appeal No,84 of 2011 decided on 10.4.2013].
' This Court in another case titled Abdul Aziz v. Azad Government and 2 others [2010 SCR 47]. Has observed as under:- "6. The only question requiring determination in the instant case is whether the compensation has been determined accordingly by the lower Courts? It is to be noted that where the land is compulsorily acquired, the return proposed to be given in lieu of land to the owner is compensation, not the market value, various matters have to be considered under section 23 of the Land Acquisition Act while determining the compensation of a land. Market value is one of such factors to be considered by the Collector or the Court. The word "compensation" has a very wide meaning. It has been elaborately. Discussed, in the judgment by Mr. Justice Kayani, in the case titled M. Salimullah and others vs. Province of West Pakistan and another [PLD 1960 (W.P.) Lahore 450], who observed that the "compensation" means counter balancing, rendering of equivalent, requital, weighing one thing against another, but it does not mean weighing copper against gold, therefore, one cannot be compensated without requiting equivalent money ' In paragraph 7 it was observed in the case referred to above as under:--- "7. It would not be out of place to mention here that the market value of the land at the time of notification under section 4 of the Land Acquisition Act was merely one of the modes for determining the compensation and was not absolute yardstick for the assessment of compensation. Various matter have to be considered while determining the compensation Again at page 57 of the report it was further observed as under:--- "8. It is the fundamental duty of the Court to also assess the potential value of the property. Factor regarding determination of the market value of land is restricted only to the time of issuance of notification or any period prior to it, but can also relate to the period in future. It is for this reason that the potential value of the land i,e,, the use to which it could be put in future, should also be considered. The schedule of average price of 3 years or even for one year is not the only criterion for determining the amount of the compensation, but the other material brought on record is also quite relevant. Mere one year's average price of the land in the same vicinity or mere classification, nature and kind of land may be taken as relevant consideration, but not as an absolute. An area may be Banjar' or 'Barani', but its market value may be higher than mera-Awal or "Hail" due to its location, neighbourhood and potentiality etc. All these factors have to be considered while determining the market value of the land. The other considerations have also been provided in the law, which would also be relevant for determining the market value of the land of owners whose land has been compulsorily acquired. Section 23 sub-section (1) of the Land Acquisition Act provides that the Court shall take into consideration the market value of the land, loss by reason of severing such land from the other land, acquisition injuriously affecting the other property or earnings in consequence of change of residence or place of business and damage, if any resulting from diminution of the profits of land between the time of the publication of declaration under section 6 and at the time of taking possession of land by the Collector. This, however, is not exhaustive of other injuries or losses, which may be suffered by an owner on account of compulsory acquisition.
9. Where the lands are not transferred through mutual negotiation, but under the power of State conferred upon it and the land owners are deprived of their land, then they are entitled to maximum possible benefits. Courts have to be liberal and generous in fixing the quantum of compensation based on different considerations so that neither the land owner is deprived of his due right nor the acquiring agency is unduly burdened in the transaction...."
' At page 62, it was observed as under:- "1. It would not be out of place to mention here that while determining the compensation, the Court has not only to fix the compensation according to the market rate at that particular time, but it has also to keep in consideration the future value of the land...."
8. To resolve the controversy involved in the case, we have scanned the whole evidence brought on the record in support of the version of the appellants. The record reveals that in support of their claim, the appellants produced before the Collector, Land Acquisition, two sale-deeds. Ex.PC and PD. Through sale-deed, Ex.PC, the land measuring 5 marlas was sold for the consideration of Rs, 3,00,000/- while vide sale-deed, Ex.PD, land measuring 1 kanal 3 marlas was sold for the consideration of Rs, 15,00,000/-. These sale-deeds were executed in the year 2002 whereas the award in the instant case was issued on 28.112005, i,e,, three years after the execution of the aforesaid sale-deeds. During these three years, the prices of the land have gone mush high. The learned Collector, Land Acquisition, has awarded the compensation of the land for three different kinds Rs, 5,20,000/-, Rs,4,60,000/- and Rs, 1,50,000/- per kanal whereas the average price of the land of the vicinity, according to the aforesaid sale-deeds, comes to Rs, 12,52,174/- per kanal.
Therefore, in our estimation, the learned Referee Judge as well as the High Court has not given any weight to the sale-deeds, referred to above on the ground that the same were executed three years prior to the issuance of notification under section 4 of the Land Acquisition Act. We are not convinced with the finding recorded by the High Court as the sale-deeds executed after the issuance of notification under section 4 would not be relevant because definitely, after the acquisition of the land, the prices of that area may automatically rise but the rejection of the sale- deeds which were executed prior to the issuance of the notification under section 4 cannot be turned down merely because they were executed three years prior to the acquisition of the land in question. If the price of land sold three years prior to the issuance of notification under section 4 of the Land Acquisition Act was so high, then how the price of the land in question can be assessed lesser than the price prevailing three years prior to issuance of notification, especially so when the acquired land is situated on the road side.
9. Here we may refer to the statements of the witnesses produced by the appellants in support of their version. Raja Faisal Khan son of Raja Ilyas Khan deposed as under:--- {{URDU TEXT}}} ' It may be stated that Raja Faisal Khan is an independent witness and as per his statement he has no relationship with the appellants.
' Sadaqat Khan son of Sher Baz Khan, one of the witnesses of the appellants, has deposed in his statement before the Court in the following terms:- {{URDU TEXT}} ' Similarly, Raja Marawat Khan, appellant No,1, has stated as under:- {{URDU TEXT}}
10. The record shows that not an iota of evidence has been produced by the respondents in rebuttal of the evidence produced by the appellants and this fact has also been observed by the High Court in the following manner:- ' In both the appeals the one and only point to be resolved is the compensation, firstly assessed by the Collector and then determination of the compensation by the learned Reference Judge. The Court has to resolve this point that whether the compensation of the awarded land was or was not properly ascertained and determined by the concerned forums. The owners of the land produced the witnesses namely Raja Faisal Khan, Sadaqat Khan and Raja Marawat Khan before the Court and got exhibited two attested copies of the sale-deeds Exh. PC and Exh. PD in support of their version. No oral or documentary evidence was produced by the Collector or WAPDA before the Court."
(Underlining is ours)
' Once High Court itself came to the conclusion that there was no evidence in rebuttal, therefore, according to our estimation, the finding of the High Court that the appellants failed to substantiate their claim is not sustainable in the eye of law. This fact has also been ignored by the reference Judge while making enhancement @ Rs,5,20,000/-, Rs, 4,60,000/- and Rs, 1,20,000/- per kanal for three different kinds of land.
11. As we have observed in the preceding paragraphs on the strength of the law laid down by the apex Court of Pakistan as well as by this Court, that sale-deeds executed 12 months' prior to the issuance of the notification under section 4 of the Land Acquisition Act is not a sole criteria to determine the market value. That is only one of the factors which can be taken into consideration while determining the market value.
12. In view of what has been discussed above, we are convinced that the respondents failed to produce any sort of evidence in rebuttal. In such state of affairs, there was no other option left for the Collector, Land Acquisition, except to award the average price of the land acquired while keeping in view the sale-deeds, Ex.PC and PD, as we have already observed that the High Court has ignored these two sale-deeds on the ground that the same were executed three years prior to issuance of notification under section 4 of the Land Acquisition Act.
' Resultantly, while accepting this appeal, the judgment and decree passed by the Reference Judge and upheld by the High Court are hereby set aside and the market value of (Para 1) the land in question is fixed as Rs, 12,52,174/- per kanal irrespective of any kind of land plus 15% compulsory acquisition charges. Thus, the award stands modified accordingly. Civil .