CH. MUHAMMAD IQBAL, J.---- Through this single judgment, we intend to decide titled appeal (R.F.A.
No.306/2008) and R.F.A. No.342/2008 as both these appeals have been filed against the same judgment and decree;
2. Through this Regular First Appeal, the appellants have challenged the judgmen t and decree dated 24.06.2008, whereby the learned Referee Court/Senior Civil Judge, Lahore accepted the reference under Section 18 of the Land Acquisition Act, 1894 filed by the respondents Mian Mumtaz Ahmad etc. (appellants in R.F.A. No.343/2008), whereby the compensation of land was enhanced from Rs.350,000/- to Rs.650,0 00/- per Marla along with 15%, compulsory acquisition charges and 8% compound interest of all the compensation amount starting from the date of taking over the possession of the acquired land till its realization and also enhanced the compensation of superstructure of building and granted Rs.1,38,33,000/- along with 15% acquisition charges and 8% compound interest on the same amount.
3. Brief facts of the case are that the appellants acquired land along with superstructure owned by the respondents (Mian Mumtaz Ahmad etc.) comprising Khata No.860 Khatoni No.1691, 1692, 1694, 1695 Khasra Nos.2155/1 164, 2159/1 166, 1168/2, 1167 measuring 03 Kanal 02 Marla 105 Sq. Ft. falling in the revenue estate of Jia Musa, Tehsil Lahore City District Lahore for the construction of Lahore Ring Road Interchange at Niazi Chowk (Package I) through award dated 11.08.2005. The respondents filed objections under Section 9 of the Act ibid whereby the compensation of land was awarded to the respondents at the rate of Rs.350,000/- per Marla and compensation of superstructure was awarded of Rs.1,38,33,000/- along with 15% compulsory acquisition charges and 8% compound interest. Respondents filed objection under Section 9 of the Act ibid and also received the compensation under protest but their objections were rejected. Respondents filed reference under Section 18 of the Act alleging therein that their land was commercial in nature, as such, they are entitled to receive compensation of land at the rate of Rs.800,000/- per marla. The appellants filed reply of the said reference stating therein that the compensation of land at the rate of Rs.350,000/- was rightly determined by the District Price Assessment Committee. Issues were framed, evidence of both the parties was recorded and vide judgment and decree dated 24.06.2008, the learned Senior Civil Judge, Lahore accepted the reference and enhanced the compensation of land from Rs.350,000/- to Rs.650,000/- per Marla along with 15% compulsory acquisition charges and 8% compound interest of all the compensatio n amount starting from the date of taking over possession of the acquired land till its realization and also enhanced the compensation of superstructure of building to the extent of Rs.1,38,33,000/- along with 15% acquisition charges and 8% compound interest on the same amount. Hence, these appeals.
Initially both these appeals (R.F.A. No.306/2008 and R.F.A. No.342/2008) were dismissed by this Court vide judgment dated 19.11.2008 which were challenged by the litigating parties through filing Civil Appeals Nos.23-L of 2009 to 25-L of 2009 and Civil Appeals Nos.38-L of 2009 to 40-L of 2009 and the Hon'ble apex Court vide order dated 11.03.2014 set aside the impugned judgment dated 19,11.2008 and remanded the case to this Court for fresh decision on merits. This Court vide judgment dated 13.04.2015 again dismissed both these appeals. Both the parties assailed the said judgment in Civil Appeals Nos.169-L to 174-L and 177-L of 2015 and the Hon'ble Supreme Court of Pakistan allowed the said appeals, set aside the judgment dated 13.04.2015, passed by this Court and again remanded the matter to this Court for fresh decision.
4. Learned counsel for the appellants submits that the respondents have not proved their case through any concrete evidence and only oral assertions were made and the order passed by the learned Referee Court is patently illegal, passed without any reason and evidence, as such, the same liable to be set aside.
5. Learned counsel for the respondents submits that the respondents proved their case through oral as well as documentary evidence and the learned Referee Court though enhanced the compensation of land as well as superstructure but not as per the claim duly proved by the respondent, as such, the same may further be enhanced.
6. We have heard the arguments of learn ed counsels for the parties and have gone through the record with their able assistance.
7. Issues Nos.2 and 3 are the crucial issue in this case, which are reproduced as under:- "2. Whether the land of the petitioner is abutting main Bund Road and is commercial by nature and is of high market value and the compensation awarded at the rate of Rs.3,50,000/- per marla to the petitioners is very low?
OPP
3. Whether the petitioners are entitled to be awarded enhanced compensation at the rate of Rs.8,00,000/- per marla along with compulsory acquisition charges and compound interest including loss of business etc.? OPP"
Onus to prove the said issues was upon the respondents/petitioners. To prove the same, Mian Asghar Ali, general attorney of respondents/petitioners appeared in witness box as P.W.1 who states that their land was acquired for construction of Interchange at Niazi Chowk; that the notification under Sections 17(4) and 6 was issued and award was announced on 11.08.2005; that the appellants gave compensation at the rate of Rs.350,000/- along with interest which was not accepted by them rather they received the said amount under protest; that as the land is commercial in nature having its market value about Rs.800,000/- per Marla; that the compensation of the building was given at lesser rate which may also be enhanced. He produced his power of attorney (Exh.P .1), ownership documents (Exh.P .2 to Exh.P:7), receipt of receiving of compensation (Exh.P .8); attested copy of sale deeds (Exh.
P .9 and Exh. P. 10) , valuation report (Exh. P. 11); notification under Section 17(4) of the Land Acquisition Act, 1894 (Exh.P .12); valuation reports (Exh.P .13 and Exh.P .14); attested copy of sale deed in favour of one Malik Muhammad Munir (Exh.P .15), attested copy of sale deed in favour of Fazal-ur-Rehman (Exh.P .16). In cross examination, he admitted that the there is no dispute regarding the ownership and measurement of the land and that the land was acquired for public purpose. Shamshair (P.W.2) stated that the land measuring 03 Kanal 02 Marla 105 Sq. Ft. including the superstructure of building owned by the plaintif fs was acquired; that the rate of compensation was given at the rate of Rs.350,000/- which was not accepted by the plaintif fs. In cross-examination, he admitted to be an employee of the respondent/petitioner .
Conversely appellants/respondents produced Muhammad Khalid Ghumman, Assistant Land Control Officer, Lahore Ring Road, (R.W .1) who stated that the suit land is situated in Moza Jia Musa Tehsil City District Lahore which was acquired for construction of Interchange at Niazi Chowk; that Gazette notification under Section 4 (Exh.R W.1) was published on 12.11.2004 and similarly notification under Sections 17(4) and 6 (Exh.R.2) was issued on 25.03.2005; that the land owners filed objection under Sections 9 and 10 and recorded the statements (Exh.R.3 and Exh.R.4); that the Assessm ent Committee assessed the average value of the land in Jia Musa and recommended compensation at the rate of Rs.3,50,000/- which was accordingly sanctioned by the Board of Revenue on 04.08.2005 (Exh.R.6); that at the time of acquisition, the site plan was made in respect of the construction by the Committee to asses s the value of superstructure; that the award Ex.P7 of the land was announced at the rate of Rs.350,000/- on 11.08.2005; that the compensation was received by the respondents through receiving (Exh.R.8). Lengthy cross-examination was conducted by the respondents/plaintif fs on this witness but they could not shatter his stance. Tahir Mehmood, Design Engineer , Building Department (R.W .2) stated that the building compensation was assessed as per law .
8. The respondents/claimants were duty bound to prove their claim through concre te and unimpeachable evidence but they have not produced sale deeds of land immediately adjacent to the acquired land situated at Moza Jia Musa, whereas the sale deeds (Exh.P .9, Exh.P .10, Exh.P .15 and Exh.P .16) produce d by the respondents/claimants relates to the other distant land which are not helpful to prove the value of the acquired land. The respondents have not produced any visual site plan to subs tantiate their stance. Furthermore, to prove their stance that the land is situated on Main Bund Road, the respondents should have produced the shajra aks parcha or any other valid document in this regard to prove the exact location of the acquired property but no such material evidence is available on the record. Reliance is placed on the case titled Abdul Sattar v. Land Acquisition Collector Highways Department and others (2010 SCMR 1523 ) wherein it was held that:- "12. In our considered opinion the petitioner has failed to substantiate that the land in question was superior as compared to the other land in the vicinity . It also could not be established that it was a commercial land and it could not be such because construction of brick-kiln installed by the petitioner was not disputed. It would have no bearing on merits of the case as to whether it was functional or otherwise but it indicates the nature of the land which by no stretch of imagination can be termed as commercial. The petitioner also failed even to point out the exact distance between the land in question and that of the road. The learned ASC was asked pointedly that as to how Aks Shajra Kishtwar could be taken into consideration which was never got exhibited hence no evidentiary value could be attached to it but no answer could be given."
Regarding the price of the land, the respo ndents/petitioners relied upon sale deeds (Exh.P .15) and (Exh.P .16) and stated that the rate of the compensation be fixed according to the said sale deeds but perusal of sale deed (Ex.P .15) shows that it is related to a property falling in Khata No.845 Khasra No.21 79/1270 situated at Band Road, Moza Jiya Mosa, Lahore but it does not prove that property , subject matter of sale deed (Exh.P .15), is situated immediately adjacent to the acquired property of the respondents. Further the said sale deed (Exh.P .15) also shows that the said property is a factoty where the commercial/industrial elect ricity and gas connections are installed whereas the respondents did not produce any such evidence in support of their claim to prove the nature of the property acquired by the appellants. Sale deed (Exh.P .16) also does not show that it is situated adjacent to the property of the respondents/petitioners, as such, these documents lend nil support to claim of the respondents and the same cannot be considered as a convincing ground for the enhancement of the compensation amount, as even variation of a few feet in the location of property drastically change the value of the property . So far as the evidence of the land expert PWs produced by the respondents/petitioners is concerned, it is well settled law that mere opinion of an expert without support of any documentary evidence cannot by itself be considered enough for enhancement of compensation. Reliance is placed on Habibullah Khan and 4 others v. Collector , Quetta (PLD 1984 Quetta 11) and Land Acquisition Collector , Sargodha and another v. Muhammad Sultan and another (PLD 2014 SC 696 ).
9. Under Section 18 of the Land Acquisition Act, 1894, it was the mandatory duty of the respondents to mention the details of their property regarding size, location etc. of the land with supporting documents but in the reference all the required information has neither been mentioned nor any documentary evidence has been furnished in this regard, whereas an elaborate procedure for assessment of price has been provided in Rule 10 (1)(iii)(c) of Land Acquisition Rules, 1983 whereby average market price of similar kind of land similarly located, on the basis of the price prevalent during the period of twelve months preceding the date of publication of Notification under Section 4 of the Land Acquisition Act, 1894 in the area sold, has to be followed. In this regard, initially the Price Assessment Committee fixed the price of the acquired land of Moza Jiya Masa, Lahore measuring 112 Kanal 08 Marla at the rate of Rs.225,000/- per marla with 15% compulsory acquisition charges but subsequently on the request of the respondent/petitioner , a new committee was constituted who after considering all the other facts enhanced the compensation amount from Rs.225,000/-to Rs.350,000/- per Marla as per the requirement of section 23 of the Land Acquisition Act, 1894. As the respondents showed disagreement with the price fixed in the award the onus was upon him to prove the claimed amount through corroborative, cogent, convincing, trustworthy documentary evidence but the same are lacking. Reliance is placed on the judgment of the Hon'ble Supreme Court of Pakistan cited as Abdul Sattar v. Land Acquisition Collector Highway Department and others (2010 SCMR 1523 ) wherein it is held that the burden to prove such claim lies upon the land-owner and mere oral assertion of the land- owner without any supporting documentary evidence would not be considered. Relevant portion of the judgment (supra) is reproduced as under: "7. It is worth mentioning that the determination of learned Referee Judge has been upheld by the learned Division Bench of High Court after having, taken into consideration the oral and documentary evidence. The relevant portion of the judgment impugned is reproduced herein below for ready reference:- "The appellant failed to bring on record any document to show that the land of the appellant is superior as compared to the other owners of the Mauza in question and the land of the appellant is situated on the road side whereas the trial court has rightly after appraisal of evidence given finding against the appellant that value of the land of the appellant was decreased on account of brick kiln installed by the appellant which was not in working condition. In other words there has not been adduced evidence about the location of the suit land as at what distance the suit land is situated from the road except that land is situated at 87/88 Karam from road which brings the case of the appellants in the area that it is a case of insufficient evidence on record. It is settled law that burden of proving the entitlement to higher rate of compensation is on the land owner . Reference in this context may be made to Government of India and others v. Muhammad Usman and others (1984 CLC 3406 ). The mere statement of owner without supportive evidence would be inconsequential."
(emphasis supplied)
10. So far as the assessment of market value of a property is concerned, suffice it to say that the market value is normally taken up as the one existing in -the preceding year of the date of issuan ce of notification under Section 4(1) of the Land Acquisition Act, which date is relevant for assessment of price according to the statute and not date of pronouncement of award as claimed by the respondents. In this regard, reliance is placed on the judgments of the Hon'ble Supreme Court of Pakistan reported as Province of Punjab through Land Acquisition Collector and another v. Begum Aziza (2014 SCMR 75) and Secretary to Government of N.W.F.P. Peshawar and 15 others v. Haji Fateh Khan and 15 others (2001 SCMR 974). A learned Division Bench of this Court, in an unreported judgment passed in R.F.A. No.284 of 2011, while dealing with the similar proposition has observed as under:- "It is an established principle of law that in land acquisition cases a party interested for enhancement of the compensation owe a duty to discharge the burden to disprove the determination of compensation by the Land Acquisition Collector by producing convincing and legal evidence. As per Rule 10(1)(iii)(c) of Punjab Land Acquisition Rules, 1983, the relevant perio d while determining the market value is the one prevalent during the one year preceding to the notification under Section 4 of the Land Acquisition Act and in his case the said notification was published on 24.08.2005. The appe llant in order to discharge the burden of proving Issues Nos.7 and 8 produced sale deed dated 9.07.2007 (Ex.A-3), sale deed dated 12.07.2007 (Ex.A4), Sale deed dated 27.6.2007 (Ex.A5) and sale deed, dated 20.6.2007 (Ex.A-6). All these sale deeds are not relevant as the same do not precede the notification under section 4 of the Land Acquisition Act. It is settled principle of law that the transactions which take place subsequent to the Notification under Section 4(1) of the Land Acquisition Act are not considered proper for determination of compensation and in this regard reference may be made to the case of Land Acquisition Collector v. Ch. Muhammad Ali (1979 CLC 523). Besides the afore-stated reasons for not accepting the above said sale deeds, we further add that the appellant did not take any step to prove the contents of these documentary evidence. It is to be noted that merely by tendering a document in evidence. It is to be noted that merely be tendering a document in evidence, it gets no evidentiary value unless its contents are proved according to law and for this purpose reference may be made to the case of Hyderabad Development Authority through MD Civil Center Hyderabad v. Abdul Majeed and others (PLD 2002 SC 84). Now the only evidence which is left for consideration is oral statement of the witnesses. We are afraid that oral evidence is not sufficient as in the land acquisition cases it is a consistent view of the Hon'ble Supreme Court of Pakistan that mere bald statements of the witnesses produced by land owner are not sufficient to accept the claim of a higher price of acquired land. In this regard reliance may be made to the case of Abdul Sattar v. Land Acquisition Collector Highway Department and others (2010 SCMR 1523 ). In view of above, the appellant failed to discharge the burden of proving Issues Nos. 7 and 8 and, therefore, findings to this effect recorded by the learned trial court are reversed."
The respondents/petitioners were under legal obligation to prove the exact price as well as the location of the acquired land through tangible evidence but he neither proved the price nor the exact location of the land through document of Aks Shajra Kishtwar , as such, the respondents/claimants have failed to discharge the above burden, which flaw rendered the impugned enhan cement of compensation as erroneous. Reliance in this regard is placed on judgment (supra) (2010 SCMR 1523 ). It is settled law that the party approaching the Courts for grant of relief would have to discharge the burden of proving his claim and has to stand on his own legs and any weakness in case of opposite party lend least support to his claim. Reliance is placed on the cases of Sultan, Muhammad and another v. Muhammad Qasim and othe rs (2010 SCMR 1630 ) and Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1). As such, the learned Referee Court was not justified in enhancing the compensation, mere on assumptions and against the available record, as such, the same cannot remain in field. Reliance is placed on Chairman, WAPDA and others v. Sarfraz Khan and another (2007 SCMR 1054 ) and Section Officer, Government of Punjab, Finance Department and others v . Ghulam Shabbir (2010 SCMR 1425 ).
11. The respondents/plaintif fs have failed to prove through any unimpeachable and trustworthy evidence the asserted price of the land, as such, the findings of the learned Referee Court on Issues Nos.2 and 3, being against the record, are hereby reversed and the same are decided against the respondent/plaintif f. Consequently , the enhancement made by the learned Referee Court is declared illegal.
12. For what has been discussed above, this appeal is hereby partly allowed and the findings of the learned Referee Court on Issues Nos.2 and 3 are set aside and the enhancement of compensation from Rs.350,000/- to Rs.650,000/- is declared illegal and comp ensation assessed in the award at the rate of Rs.350,000/- per Marla is upheld along with 15% compulsory acquis ition charges and 8% compound interest of all the compensation amount starting from the date of taking possession of the acquired land till its realization whereas rest of the findings on other issues are upheld, and the connected appeal (R.F.A. No.342/2008) filed by the respondents/petitioners is hereby dismissed. No order as to costs.