CH. MUHAMMAD IQBAL, J. Through this regular first appeal under Section 54 of the Land Acquisition Act, 1894, the appellant has challenged the validity of the judgment and decree dated 22.09.2023 whereby the learned referee Court/Senior Civil Judge, Kasur accepted the reference under Section 18 of the Act ibid filed by the respondents.
2. Brief facts of the case are that the respondents filed a reference under Section 18 of the Land Acquisition Act, 1894 and contended that they were the owners of land situated in Chak No.22 Tehsil Partoki, District Kasur fully described in paragraph No.1 of the reference and the said land was acquired by the appellant/National Highway Authority for construction of Lahore Sahiwal Section road. Award was announced on 02.03.2011 and compensation was assessed by the appellant at the rate of Rs.1900/- per Marla along with % compound interest from the date of possession till announcement of the Award. Being aggrieved of the less quanttun of compensation, the respondents filed a reference under Section 18 of the Act ibid. The appellant filed contesting written reply. Out of the divergent pleadings of the parties, the learned referee Court/Senior Civil Judge, Kasur framed issues, recorded evidence of the parties and vide judgment and decree dated 18.09.2020 accepted the reference by increasing the compensation from Rs.1,900.58 per Marla to Rs.65,000/- per Marla along with 15% compulsory acquisition charges and 08% compound interest per annum from the date of possession till payment of compensation. The appellant assailed the said judgment and decree through an appeal [R.F.A. No.586/2021] which along with other appeals was accepted with the concurrence of the parties vide order dated 24.03.2022 and the case was remanded to the referee Court for fresh decision. In post-remand proceedings, the parties produced further documentary evidence in support of their respective claims. The referee Court again accepted the reference by increasing the compensation from Rs.1,900.58 per Marla to Rs.65,000/- per Marla along with 15% compulsory acquisition charges and 08% compound interest per annum from the date of possession till payment of compensation. Hence, this appeal:
3. We have heard the arguments of learned counsel for the parties and have gone through the record.
4. Main controversy involved in this case revolves around Issue No.1 which is reproduced as under: "Whether compensation awarded by Land Acquisition Collector was inadequate and improper against the market value of the suit land and same is liable to be enhanced as prayed for along with interest? OPA"
Muhammad Iqbal (A.W.1), one of the respondents/petitioners, deposed that they were owners of land which was acquired for construction of road; that the land is costly and commercial in nature.
During cross-examination, he deposed that they did not file any written objections on award before the Land Acquisition Collector; that he received the compensation; that it is correct that the department has assessed the value of the land on the basis of the average sale price. Muhammad Ishaq (A.W.2) deposed in support of the respondents. During cross-examination, he admitted that the acquired land was agricultural in nature; that he has given statement what the petitioners had told him.
5. Conversely, appellant produced Shams-uz-Zaman, Land Acquisition Collector (R.W.1) who deposed that at the time of announcement of award in the year 2011 he was posted as Land Acquisition Collector, NHA; that land was acquired for construction of road; that notification under Section 4 of the Land Acquisition Act, 1894 was issued on 12.01.1993; that the award was announced and compensation was received by the land owners without any protest; that after fulfillment of all legal and codal formalities, land was acquired and compensation was given. During cross- examination, he deposed that the compensation was assessed at the Crate of Rs. 1900.58. Mst.
Yasmeen Nighat, Assistant Director NHA (R.W.2) deposed that land was acquired for extension of road; that the petitioners received compensation without any protest as such reference is not maintainable. Abdul Hameed Qanugo (R.W.3) deposed that was acquired for expansion of Multan Road; that the petitioners received compensation without any protest.
6. The burden to prove the issue was upon the respondents/claimants to prove their case for the enhancement of compensation through concrete and unimpeachable evidence but the respondents have not produced nay visual site plan or shajra aks parcha or any other valid document in this regard to prove the exact location of the acquired property that it is situated at the main road and has commercial characteristic but no such document/evidence has been brought on the record to substantiate their pleaded stance.
7. Even otherwise, an elaborate modus regarding assessment of value of property is provided in Rule 10 (1)(iii)(c) of Land Acquisition Rules, 1983 whereby average market price of alike kind of land similarly located and its price prevalent value 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. The respondents showed disagreement with the price fixed in the award, thus onus was upon them to prove the exact price and it was the mandatory duty of the respondents under Section 18 of the Act ibid to mention the details of their property regarding size, location etc. of the land with supporting documents along with the reference and to prove the claimed amount through corroborative, cogent, convincing and trustworthy evidence which are missing and respondents failed to dissipate the burden. A learned Division Bench of this Court has elaborately discussed this issue in a judgment cited as Lahore Ring Road Authority and others v. Mian Mumtaz and others (2021 CLC 178) as under: "8. The respondents/claimants were duty bound to prove their claim through concrete 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) produced 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 substantiate 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 respondents/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.2179/1270 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 factory where the commercial/industrial electricity 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 assessm ent 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 Assessm ent Committee fixed the price of the acquired land of Moza Jiya Mosa, 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'blc 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 mower statement of owner without supportive evidence would be inconsequential."
(emphasis supplied)
10. So far as the assessm ent 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 issuance 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 period 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 appellant 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 M.D. 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 enhancement 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 others (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)."
The judgment (supra) was assailed through Civil Appeals [Nos. 157-L, 161-L, 162-L, 170-L, 171-L and 172-L of 2020] and the Supreme Court of Pakistan has dismissed all aforementioned appeals and upheld the decision of this Court vide order dated 23.11.2020.
8. Even otherwise, the respondents while receiving the compensation assessed in the Award, did not raise any objection qua the quantum of compensation as such they were debarred to file reference for enhancement of compensation. Proviso to subsection (2) of Section 31 of the Act ibid is relevant in this regard, which is reproduced as under: "Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18"
The aforesaid provision is very much clear that only such person is entitled to file application for enhancement of compensation who has received compensation under protest whereas the respondents did not file any application to show their protest at the time of receipt of the compensation amount. On the other hand, the appellant has tendered documentary evidence (Exh.R.9 to Exh.R.11), exhibited without any objection of the respondent side, shows the receiving of the compensation amount by the respondents without any protest, thus, the Reference is liable to be dismissed on this score. Reliance in this regard is placed on a case cited as Ghulam Muhammad v. Government of West Pakistan (PLD 1967 SC 191) wherein the Hon'ble Supreme Court of Pakistan has held as under: "... He has now filed a petition to say that no such application was made, but a copy of the receipt granted at the time that the cheque was received from the Court has been filed by Government. It does not, as already stated, show that the money was withdrawn under protest. The second proviso to section 31(2) is, therefore, fully applicable and would appear to constitute a bar to the appellant's right to now claim a reference under section 18, for, he can no longer be treated to be a person interested who has not accept the award."
Another reliance is placed on a case titled Government of N.W.F.P. and others v. Akbar Shah and others (2010 SCMR 1408) wherein the Hon'ble Apex Court has held that: "6....It is established on the record that the respondents/plaintiffs had received compensation as determined by the Land Acquisition Collector through the Award without any protest.
Respondents/plaintiffs had no lawful right to file reference under section 18 of the Land Acquisition Act read with sections 30 and 31(2) of the Land Acquisition Act as law laid down by this Court in Ghulam Muhammad's case PLD 1967 SC 191."
Further reliance is placed on a case cited as Land Acquisition Collector (M-I), National Highway Authority Islamabad and 4 others v. Zahir Shah and 5 others (2016 YLR 2462).
In these circumstances, the respondents were debarred to file Reference claiming enhancement of compensation as they had not recorded any protest at the time of receipt of the compensation.
9. Moreover, the documentary evidence (i.e. Exh.A.5 to Exh.A.14) was produced on behalf of the respondents by their counsel in his statement whereas it is mandatory requirement of law that documents relied upon should be produced in the evidence by party in its own statement so that the adverse party may have a fair opportunity to cross-examine the same, as such the documents produced by the respondent counsel lack intrinsic value and such documents can validly be excluded from consideration. Reliance is placed on the case title Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 SC 715). Similar view has been reiterated by the Hon'ble Supreme Court of Pakistan in its latest judgment cited as Rustam and others v. Jehangir (deceased) through LRs. (2023 SCMR 730) wherein it is held as under:-
7. As regards the other two documents i.e. mutation No.1836 (Exh.D-9) and mutation No.1837 (Exh.D- 8), it is suffice to say that according to principle settled by this Court in the cases reported as Mst.
Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996), Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604), Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172) the document should be produced in the evidence by the party itself and a fair opportunity should be given to the opposite party to cross-examine the same, as such, the said two documents produced by the defendants counsel in his statement could not be taken into consideration."
(emphasis supplied)
10. In these circumstances, the respondents failed to prove their claim through any solid, trustworthy, concrete and unimpeachable oral as well as documentary evidence thus, the findings of the referee Court on issue No.1 being against the law as well as record, are hereby reversed and this issue is decided against the respondents and in favour of the appellant.
11. For what has been discussed above, this appeal is hereby allowed and by setting aside the judgment and decree dated 22.09.2023 passed by the referee Court, the reference under Section 18 of the Land Acquisition Act, 1894 filed by the respondents/claimants is hereby dismissed. No order as to costs.