SHAHID WAHEED, J. These two appeals that have been presented to us are from two land-owners who are also related to each other and whose lands were acquired for the construction of Faisa labad to Multan Motorway (M-4) and both of them are from the judgments of the Senior Civil Judge, Faisalabad answering references filed under Section 18 of the Land Acquisition Act, 1894 (Act I of 1894). Since not only the facts but also the claims to compensation and the evidence in support of them was same in these two appeals, we considered it appropriate to hear them together and also to decide them by a consolidated judgment so that there would be no conflict in our decision.
2. The facts in brief giving rise to these appeals are that on 8th January , 2004, the District Collector , Faisalabad issued a notification (Ex.R.3) under Section 4 of the Land Acquisition Act, 1894 ("the Act") to the effect that an area of 666 Kanals 06 Marlas and 7 Sirsai of Chak No.6-JB, Tehsil & District Faisalabad was intended to be acquired for the public purpose of construction of Faisalabad to Multan Motorway (M-4). This area included 21 Kanals 16 Marlas and 07 Sirsai of appellants of R.F.A. No.781 of 2014 and 21 Kanals 15 Marlas and 06 Sirsai of the appellants of R.F.A No.957 of 2014. On 7th May, 2009 another notification (Ex.R.5) under Section 6 of the Act was issued. After the publication of the above notifications, the Land Acquisition Collector , National Highway Authority , (Faisalabad-Khanewal) Section-I, M-4 Project, Faisalabad initiated proceedings for the determination of compensation payable to the various owners of the land acquired. Notices as required under Sections 9 & 10 of the Act were served upon the affected persons requiring them to deliver their statements regarding nature of their respective interests in the land and particulars of their claims to compensation. In response to the notices, the appellants appeared before the Land Acquisition Collector and got recorded their statements that their land was of commercial kind and near to the Bypass and rates offered to them were not reason able and demanded payment of compensation at the rate of Rs.6,000,000/- per acre. After the usual formalities under the Act had been gone through by the Land Acquisition Collector , he on the basis of evidence and inspection of the site delivered his award on 11th December , 2009 (Ex.R.1) in which the amount of compensation to land-owners was determined by him as under:- Sr. No. Chak No. Acquired Area K M S Rate per acre Cost of land
1. 6/JB Category - A-47 13 0 4,000,000 23,825,000
2. 6/JB Category - B-618 13 7 2,500,000 193,340,278 Total Area 666 06 7 217,165,278 15% compulsory acquisition charges Rs.32,574,792.00 GRAND T OTAL Rs.249,740,070
3. The land of both the appellants was included in Category-B and compensation of Rs.2,500,000/- per acre was determined for them. They were dissatisfied with the award and in order to seek a judicious determination of their rights they made applications before the Collector under Section 18 of the Act asking him to refer their cases to the Court for adjudication. On receipt of these applications, the Collector made the required references to the Court of Senior Civil Judge, Faisalabad. Both references were filed in the Court of Senior Civil Judge on 9th February , 2010.
The reference of appellants of R.F.A. No.957 of 2014 was registered in the Reference Court vide No.08-4 of 2010 while the reference of appellants of R.F.A. No.781 of 2014 was registered vide No.09-4 of 2010. Although the two references were in the same Court yet they were not consolidated; however , they were proceeded simultaneously and the orders passed therein were the same. Since the appellants were related, they presented the same type of evidence. The respondents also produced same evidence in both references. On consideration of the matter , the Senior Civil Judge agreed with the award and the objections raised on behalf of the appellants were not accepted and consequently , two separate judgments were passed on the same date i.e. 20th March, 2014. So, these two appeals.
4. It may be mentioned to begin with that for good administration of justice it is essential that it ought to be not only swift but also fair and for that the Court must examine the preliminary objections to the claim at the outset because upon declaring them to be valid the Cour t is relieved of its duty to take further proceedings in the matter and the parties also stand discharged from further hassle. Mindful of this principle, we considered it prudent to appraise issue No.1 whereby the Reference Court had made the respondents under burden to prove that the appellants had no cause of action. We, therefore, asked the respondents' counsel to explain this objection and also show us as to how from the evidence on record this objection is substantiated. He said that since the appellants had received the amount of compensation determined by the Land Acquisition Collector without any protest, they could no longer be called aggrieved persons nor did they had any cause of action. To prove this objection he took us to the statement of Khalid Mehmood Gill, Land Acquisition Collector , National Highway Authority , who appeared as RW-1 in both the references and during his examination-in-chief had stated before the Reference Court that the appellants had received their compensation. He also referred to the statement of Muhammad Yaqoob (appellant of R.F.A. No.781 of 2014 who appeared as his own witnes s in his reference as AW-1 and supportin g witness in the other reference as AW-2) and Nasir Mahmood (appellant of R.F.A. No.957 of 2014 who appeared as his own witness in his reference as AW-1 and supporting witness in the other reference as AW-2) and said that both the witnesses had stated that although compensation had been received, it was very low. We have carefully read the statements of the witnesses but they do not explain when the appellants (land-owners) received the amount of compensation and whether it was received under protest. Faced with this situation, the respondents' counsel submitted that since the appellants had not received the compensation due to their objections, the Land Acquisition Collector had filed an application under Section 31(2) of the Act in the Reference Court so that the amount of compensation could be deposited in the Court and, that this application was allowed by the Reference Court vide order dated 23rd January , 2012. He further informed us that according to cash register and Qabzul Wasool, the appellants had received the amount of compensation without any protest.
5. It is now clear that the award was made on 11th December , 2009, the appellants on 9th January , 2010 had filed applications before the Land Acquisition Collector asking him to send references to the Court under Section 18 of the Act for determination of their legitimate compensations, accordingly the references were forwarded and on 9th February , 2010 they were received in the Court, and finally during the pendency of the references, the amount of compensation was received by the appellants without recording the remarks "under protest". This brings us to the consideration of the question whether , in the given facts and circumstances of the case, the appellants (land- owners) can legitimately be accused of waiver of their right to have their objections determined by the Reference Court. For this we have to look at Section 31 of the Act, which cast a duty upon the Collector to tender payment of the compensation awarded by him to the persons interested entitled thereto unless "they shall not consent to receive it", in which case he shall depo sit the amount in the Court to which a reference would be submitted.
However , this is subject to the proviso that "any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount". To fully understand the consequences of receiving the compensation with or without protest, it is essential to completely read the provisions of Section 31 of the Act, which is reproduced below: - "31. Payment of compensation or deposit of the same in Court.- (1) When the Collector has made an award under section 1 1-
(a) if the persons interested entitled to compensation and costs (if any) under the award and the Provincial Government accept the award and intim ate their acceptance in writing to the Collector before the expiry of the period prescribed in sub-section (2) of section 18 for making an application to the Collector for referring the award to the Court, or in sub-section (3) of the said section for referring the award to the Court by the Provincial Government, whichever is later, or if the period specified in sub-section (2) of the said section for making an application to the Collector or in sub-section (3) for referring the award to the Court has expired and no such application or reference has been made, the Collector shall, before taking possession of the land, tender payment of the full amount of compensation and costs (if any) awarded by him to the persons entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in sub- section (2);
(b) if the persons interested entitled to compensation and costs (if any) under the award or the Provincial Government object to the award and an application has been made to the Collector under sub-section (2) of section 18 for referring the award to the Court or the award has been referred to the Court by the Provincial Government under sub-section (3) of that section, the Collector shall, before taking possession of the land, tender payment of the compensation and costs (if any) awarded by him or the estimated cost of acquisition of such land as determined by the Collector of the district under sub-section (1) of section 17, whichever is less, to the persons entitled thereto under the award and shall pay it to them unless prevented by some one or more of the contingencies mentioned in sub-section (2): Provided that no payment under clause (b) shall be made until the person entitled to compensation furnishes to the satisfaction of the Collector a security for refund of the amount, if any, which may subsequently be found to be in excess of the compensation awarded to him by the Court.
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation and costs (if any) in the Court to which a referen ce under section 18 would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18 Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation or cost awarded under this Act, to pay the same to the person lawfully entitled thereto.
(3) Notwithstanding anything in this section the Collector may, with the sanction of the Commissioner instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land-revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned.
(4) Nothing in the last foregoing sub-section shall be construed to interfere with, or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contact in respect thereof."
6. Let us now review the case-law which considered the above cited Section to answer such a question as we are presently discussing. The first case that may be cited in this regard is Ghulam Muhammad v. Government of West Pakistan in which the ownership of the person interested was not clear in the revenue record, therefore, declaring him "disputed item", the Collector deposited the amount of compensation in the Court. Subsequently , the person interested upon getting a mutation sanctioned in his favour recording him as owner received the amount of compensation without any protest and then filed an objection before the Land Acquisition Collector complaining about the inadequacy of the compensation, which was declined. The Collector 's decision was defended in the Supreme Court with the argument that since the land-owner withdrew the compensation without any protest, he had no longer any right to object to the award by reason of the provisions of the second proviso to Section 31(2) of the Act. This argument prevailed upon the Supreme Court and it was held that a person, who had taken payment without protest, would be deemed to have waived his objections to the award, if any, and could not thereafter claim a reference under Section 18 of the Act. It is pertinent to mention here that this principle has been repeated in Govt. of NWFP and others v . Akbar Shah and others .
7. We now consider another case. This is Wali Ahmad v. Collector , Land Acquisi tion and others wherein the land-owner had requested to make a reference to the Court before getting payment of compensation under the award. The facts of that case are that the award had been made by the Collector on 29th July, 1970 but before any compensation could be paid, the land-owner on 24th August, 1970 applied under Section 18 for making reference to the Court. The reference was received by the Court on 22nd April, 1971. It was after this that the land-owner received compensation on 30th May, 1971 on furnishing requisite bond. However , there was no mention in Qabzul Wasool that the amount had been received under protest. The Collector , therefore, opposed the reference on the ground, inter alia, that the land-owner was estopped from claiming enhancement of the compensation. An issue was framed on this point. The findings returned by the Supreme Court were that the fact that the land-owner had already applied for reference, showed that he had not accepted the award and that he had taken the amount under protest and that being so, the absence of a mention of the same in the receipt register was mere inadvertence and a technicality .
8. There is yet another dimension of the matter and it came up in Zardad Khan and others v. Government of N.W.F.P. and others . What happened in it was that the land-owner , feeling dissatisfied with the award, made an application under Section 18 of the Act to the Collector requiring him to refer the matter to the Court for determination of the amount of compensa tion. While the application for reference was still pending, the land-owner applied to the Collector for disbursement of the amount of compensation as determined in the award. The land- owner 's objection petition was later referr ed to the Court for decision. The objection petition was dismissed on the ground that it was not maintainable in view of the provisions contained in the second proviso to subsection (2) of Section 31 of the Act, as the land-owner had, without protest, accepted and withdrawn the compensation amount accessed by the Collector in respect of his land. This decision was challenged before the Supreme Court with the contention that since the land-owner had filed application under Section 18 of the Act regarding inadequacy of the compensation amount, he should be deemed to have lodged protest within the meaning of the second proviso to subsection (2) of Section 31 of the Act. This argument was approved and it was held that in the circumstances where a land-owner had already filed his application for reference of his claim, the receiving of the amount of1 2 3 4 compensation subsequently would be deemed to be under protest, even though the land-owner may not have mentioned the words "under protest" in his application for withdrawal of the amount, if any such application was to be at all made, or in the receipt granted showing that the amount had been received and accepted.
9. Before proceeding further , it is important to note that precedents are the anchors of the law and thus, respect and adherence to them is the rule rather than the exception. Inasmuch as the Supr eme Court is unquestionably the ultimate expositor of law, the High Courts and other Courts are absolutely bound by its precedents. It is not only a matter of owing obedience but also of developing consistency in the evenhanded administration of justice in the Courts . So on careful examination of the case-law , we can confidently say that underlined wisdom of the provisions of Section 18 read with Section 31 of the Act is that the concept of consent and protest cannot go together , and thus, it is essential, that whenever a person feels dissatisfied with the amount of compensation determined in the award, it ought to first raise its protest either by making an application before the Collector asking him to send reference to the Court for determination of his objections or in the alternative receive the amount of compensation under protest otherwise, it shall be precluded to make any grouse and taking out any proceeding.
This principle furnishes a basis for determining the present issue. In the case at hands, we feel that the appellants at first while not accepting the award (Ex.R.1) had raised their objections to it and also stated the grounds for the objection. They had asserted their right to require a reference under Section 18 of the Act for determination by the Court. The applications were competently entertained and lawfully forwarded. The appellants had clearly expressed their dissatisfaction and disapproved the Collector 's award (Ex.R.1) and then claimed more compensation. In such a set of circumstances, the entire conduct of the appellants cannot even by implication be inferred to amount to consent, acceptance of award or conscious waiver of their existing rights. We would thus, repel the respondents' preliminary objection by holding that receiving of compensation amount by the appellants would be deemed to be under protest and the absence of a mention of the same in the cash register or Qabzul Wasool was mere inadvertence. Issue No.1 is accordingly settled against the respondents.
10. The respondents had two other preliminary objections. One was that the appellants had not come to the Reference Court with clean hands and the other was that the appellants' petition was frivolous, and respondents were entitled to special costs. Issues No.2 and 3 were framed on these two objections but they were not pressed before us and thus, there is no need to dilate upon them.
11. We may now turn our attention to the main question that arises in these two appeals is whether the compensation awarded by the Land Acquisition Collector is correct. It will be noticed that when the case falls under the Act, the question to determine in connection with the compensation payable is the market value at the relevant time. The Land Acquisition Collector in his award dated 11th December , 2009 (Ex.R.1) had fixed the compensation of the appellants' land at Rs.2.500 million per acre. The objection of the appellants to the said compensation was that since the land adjacent to their land was sold on 17th May, 2007 at Rs.7.500 million per Kanal, the compensation of their land, which had an orchard on it and had also come into the commercial area, should have been fixed at Rs.9.000 million per acre. This objection was denied by the respondents with the assertion that the compensation was correctly assessed considering all the potential and relevant factors. The above-stated divergent stances led the Reference Court to frame issue No.4 whereby the appellants were burdened to prove that the award pertaining to their land had determined the low amount of compensation than the actual market value. It is to be noted that though Section 23 of the Act does not provide any method to be adopted for arriving at the market value of the land compulsorily acquired, but the study of different precedents of the superior courts suggests that the best method of fixing the market value is to find what a willing purchaser would pay a willing seller . An instance of a sale which is proximate in time to the date of the notification under Section 4 of the Act in respect of land similarly situate and with similar advantages and which is proved to be a transaction between a willing vendor and a willing purchaser form a reliable guide for determining the market value. It need hardly be said that the evidence produced in Court to prove the market value must be in conformity with the standard laid down by the Qanun-e-Shahadat, 1984. Sub-clause (4) of clause (d) of Article 2 of the Qanun-e-Shahadat, 1984 says that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to5 act upon the supposition that it exists. In the light of the legal position stated above , when we look at the record of this case, it is clear that the appellants presented some documentary evidence consisting of different mutations before the Reference Court in their counsel' s simple statement, without administering an oath to him, so as to prove that the compensation of their acquired land was not correctly determined. The first document that was presented to the Reference Court was mutation No.1475 dated 30th May, 2007 (Ex.A.1) and its contents stated that land measuring 27 Kanals and 2 Marlas was sold for Rs.750,000/-. The second document was mutation No.1978 dated 10th June, 2010 (Ex.A.2) and it indicated that land measuring 1 Kanal and 3 Marla was sold at Rs.300,000/-. The third document was mutation No.2131 dated 6th June, 2011 (Ex.A.3) which evidenced sale of 4 Kanals 9 Marlas land at Rs.25,000,000/-. We cannot bring all these documents into our deliberation as the first reason is that they are not close in time to the notification dated 8th January , 2004 under Section 4 of the Act (Ex.R.3) and the second is that the manner in which the above-mentioned documentary evidence was presented in the Reference Court has not only been disapproved by our Supreme Court but also held that such documents which are not brought on record through witnesses cannot be taken into consideration We are bound to follow this principle and thus, would exclude these documents from our consideration.
12. There is another good reason to ignore the above-stated documentary evidence. In Nirman Singh and others v. Lal Rudra Partab Narain Singh and others it has been observed that it is an error to suppose that proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries institut ed in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. This being the well settled principle of law, it is clear that before the three mutations (Ex.A.1 to Ex.A.3) could be relied upon by the Reference Court, it was the duty of the appellants (land-owners) to prove mutations by adducing evidence either of vendor or vendee or the witnesses of passing of the consideration under the mutations, to prove that the sale transactions are genuine transactions between the willing vendo r and willing vendee; that the consideration had in fact been passed, represent the prevailing market value; and also the lands under acquisition and the lands concerning the sale are similarly situated and possessed of same or similar nature, advantages, etc. The rationale of the foregoing duty is that empirical study suggests a common practice that persons buying property have a higher price mentioned in the document evidencing the sale in order to discourage the pre-emptors and it is clear that suspicion that a higher price has been mentioned in the relevant document should at once arise if one finds that the price has suddenly shot up. Another thing that cannot be lost sight of is that as soon as information that Government is about to acquire land in that vicinity reaches the owners of property in that locality , prices go up. Since in this case the appellants (land-owners) had not made any attempt to bring on record any kind of evidence for meeting the above-stated requirements of law, it could not be held that through mutations (Ex.A.1 to Ex.A.3) the appellants, in terms of Article 2(4)(d) of the Qanun-e-Shahadat, 1984, had been able to prove that the award (Ex.R.1) pertaining to their land had determined the low amount of compensation than the actual market value.
13. Now adverting towards oral evidence led by the appellants, it is to be noted that it is identical in both cases and it consists of the statements of two witne sses, one of whom is Muhammad Yaqoob (appellant of R.F.A. No.781 of 2014) and the other is Nasir Mahmood (appellant of R.F.A. No.957 of 2014). No evidence had been brought on record from independent source that the land had an orchard and had also come into commercial area. Thus, on the basis of mere oral assertion on behalf of the land-owners/appellants of both the appeals, the potential value of the land could not be determined . As such we are of the opinion that inasmuch as the appellants had failed to discharge the burden of proving the market value as well as potential value of the land, the Reference Court was justified in declining the objections by maintaining the compensation determined in the award (Ex.R.1).
14. In the end the appellants' counsel, realizing the above-stated shortcomings of the case, made a feeble attempt to persuade us to enhance the compensation, pleading an argument that the land of the appellants and the land classified as Category-A in the award (Ex.R.1) are identical and thus, the appellants are at least entitled to6 7.
8 9 10 compensation which has been determined for Category-A, that is, at the rate of Rs.4.000 million per acre. To substantiate his argument, he drew our attention to the statement made by the Land Acquisition Collector (RW-1) in his cross-examination when he said that the area that abutted on the metaled road was put in Category-A and it was correct that the area of the appellant s abutted on the bypass. This argument carries no weight and we reject it on the grounds that firstly , although it has been stated in the oral evidence that the land of the appellants is adjacent to the bypass, no witness has stated that the bypass road had already been constructed before the date of notification under Section 4 of the Act or award; secondly , the appellants had not brought on record any evidence to prove the exact location of their land and that of the land of category-A and thirdly , this was neither an objection of the appellants nor was it a claim in the reference made under Section 18 of the Act.
15. The net result is that the impugned judgments are maintained and these appeals fail and are hereby dismissed.
There will, however , be no order as to costs. PLD 1967 Supreme Court 191 2010 SCMR 1408 1985 SCMR 224 1987 SCMR 1387 Muhammad Saif Ullah v . Lahore Development Authorities and others ( PLD 2021 Lahore 168 ) The Land Acquisition Collector v. Ch. Muhammad Ali (1979 CLC 523) Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v . Abdul Majeed and others (PLD 2002 Supreme Court 84) Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604 ) Manzoor Hussain (deceased) through L.Rs. v . Misri Khan (PLD 2020 SC 749) A.I.R. 1926 PC 100 North West Frontier Province v. Shad Mohammad Khan & others (1975 Law Notes 338) Land Acquisition Collector-II Tarbela Dam Resettlement Organisation, WAPDA and 2 others (PLD 1976 Peshawar 50)
Government of Sindh and 2 others v. Muhammad Usman and 2 others (1984 CLC 3406 ) Liyar Khan v. Land Acquisition Collector/A.C., Swabi ( 2003 YLR 3287 ) Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 Supreme Court 84) Saeedur Rehman and others v. Assis tant Commissioner/Collector Acquisition, Swabi (2004 CLC 378) Abdul Sattar v. Land Acquisition Collector Highways Department and others ( 2010 SCMR 1523 )