' GHULAM SAFDAR SHAH, C. J.-These three appeals under the Land Acquisition Act, 1894 (hereinafter called the Act) which arise from the same award and in which according to the learned counsel for parties the evidence is common have been brought to this Court under the following circumstances :-
2. By a notification published by Provincial Government under section 4 of the Act on 3rd May, 1967 it was notified that the entire estate of village Gojra, Tehsil Haripur District Hazara, was likely to be acquired for a public purpose, namely the execution of a Tarbela Dam Project. It is common ground between the parties that the entire estate consists of 12257 Kanals and 8 Marlas the classification-wise details of which are as under :- {{TABLE}} Chahi94 kls 6 mls Chari Abi2 kls 8 mls Baherdi Abi15 kls 10 mls Barri Abi18 kls 3 mls Grera Abi17 kls 12 mls Barni160 kls 5 mls Kund250 kls 5 mls Maira570 kls 6 mls Rakkar Kalsi783 kls 7 mls Banjar748 kls 2 mls other Ghairmumkin7206 kls 17 mis other Abadi126 kls 7 mls {{TABLE}}
4. The land-owners including respondents were dissatisfied with the award in question and in order to seek a judicial determination of their rights, they made an application before the Collector under section 18 of the Act asking him to refer cases to the Court of District Judge for adjudication. On receipt of this application, the Collector made the required reference to Court before which the parties later produced their respective evidence. And in consequence, the learned District Judge, disagreed with the award and awarded to land-owners (including respondents) enhanced compensation as under :- {{TABLE}} Chahi Bad Chari and Bari AbiRs. 1753 per kanal Baharai Abi Grera & BariRs. 878 per kanal Kund MairaRs. 430 per kanal Bakkar KalsiRs. 220 per kanal BanjarRs. 110 per kanal other Abadi GharimumkinRs. 55 per kanal other AbadiRs. 1,755 per kanal {{TABLE}}
5. Being aggrieved of this award, Government of N.-W. F. P. Has filed these appeals which were argued by Maulvi Siraj-ul-Haq, Advocate. Whereas from the side of respondents the case was argued by Messrs Fida Muhammad Khan and Haider Zaman, Advocates.
6. It may be mentioned to begin with that in the Court of learned District Judge six issues were framed in these cases but the learned counsel for parties had confined their arguments only to Issues 3 and 5, namely :-
(3) Whether the compensation assessed by the respondent is inadequate and the objectors are entitled to enhanced compensation ?
(4)
(5) Whether the objectors are entitled to claim compulsory acquisition charges at the rate of Rs, 50 per centum ?"
7. In this Court the learned counsel for parties have confined their arguments only to issue 3 having altogether given up issue No,
5. The principal grievance of Maulvi Siraj-ul-Haq, the learned counsel for appellant/Government is that the learned District Judge has in upsetting the finding of Collector, erred by relying only on two mutations Nos. 1643 and 1686 respectively attested on 8th June, 1966 and 7th November, 1966 forgetting altogether that the sale transactions recorded therein had remained unproved. He contended that as against this, the learned Collector had taken pains to inquire into the matter with considerable anxiety to do justice inasmuch as after having declined to rely only on these two mutations for quite weighty reasons, he had proceeded to assess the amount of compensation on the basis of 13 sale mutations regarding the same type of land in the area attested during five years before 3rd May, 1967, when notification under section 4 of the Act had been published. In order to meet this argument, Mr. Fida Muhammad the learned counsel for respondents contended that two mutations, to which exception has now been taken were properly brought on record and thus the learned District Judge was justified to take them into consideration not only because that they were attested within a year preceding the target . Date on 5th May, 1967 where notification under section 4 of the Act was published but also because that in view of the instructions of the authorities of Tarbela Dam Project in that behalf, these two mutations alone had to be taken into consideration in determining the amount of compensation.
7-A. Now the requirement of section 23 of the Act is to determine the amount of compensation to be awarded to land-owners, and in that behalf it lays down by way of criterion, that the market value of the land on the date of the publication of notification under section 4 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 eight decades in which the expression in question has come to assume a definite meaning. At page 119 of his Treatise on Compulsory Acquisition of Land (1970) Edition, Raja Muhammad Muzaffar has referred to a large number of cases in which this expression has been judicially construed by various High Courts to mean the value of the property to the owner judged, of course, by on objective and not a subjective standard, "ordinarily" it has been laid down in these various judgments : "The objective standard would be the price that an 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 declaration but kit's potential value must be taken into consideration excluding any advantage due to the carrying out of the scheme for which the land is compulsorily acquired. The methods of valuation may be : (1) opinion of experts ; (ii) the price paid within a reasonable time in bona fide transaction of purchase of the lands acquired and possessing similar advantages, and (iii) a number of years purchase of the actual or immediately prospective profits of the land acquired. It is generally necessary to take two or all these methods in order to arrive at a fairly correct valuation. Exact valuation is practically impossible, the approximate market value is all that can be arrived at".
8. Maulvi Siraj-ul-Haq the learned counsel for appellant/Government argued that if the award of the Collector and that of the learned District Judge both are scrutinized it would be seen that the former had conducted himself strictly according to these guidelines, whereas the learned District Judge, although he too seems to have been conscious of them, has disregarded them. He contended that in any event, mutations Nos. 1643 and 1686 respectively attested on 8th June, 1965 and 7th November, 1966 could not form the sole basis for his award as in the first place this would be violative of the above guidelines and in the second place the sale transactions recorded therein were not proved according to law.
9. The award of Collector would show that he was fully conscious of mutations Nos. 1643 and 1686 attested on 28th June, 1966 and 7th November, 1966 respectively. But he was unable to persuade himself to rely on them as the sole basis for the award which he eventually delivered. In order to show that while determining the value he had considerable pains to apply his mind to all conceivable evidence on record, Perhaps it would be proper to reproduce his own reasoning on the point : - "Naib-Tehsildar Aquisition was deputed to collect the list of sale-mutations attested during the one year period preceding the date of notification i. e. 3rd May, 1967 of village Gojra under acquisition.
The Naib-Tehsildar reported that mutations Nos. 1643 and 1685 attested on 28th June, 1966 and 7th November, 1966 respectively have been attested for one kind of land viz. Kund through which 8 Kanals, kund type of land has been sold against Rs, 5670 which shows that the land of kund type has been sold at Rs, 679 per kanal. No more than one mutation has been attested for any type of land except kund as mentioned above in the period required for working cost of land in village Gojra and in my opinion the rate of Rs, 679 per kanal of Maira type of land in village Gojra under acquisition seems excessive to some extent. Therefore, 1 got collected a data of sale mutation for mixed type of land attested during the one year prescribed period and it was found that through mutations Nos. 1528, 1643, 1644, 1645, 1633, 1648, 1656, 1663, 1678, 1687, 1688 and 1701 an area measuring 171 Kanals 18 Marlas of different kinds of land has been sold against Rs, 25,045 during the prescribed one year period mentioned above. According to the ratio of Parta Bandubastion the basis of above 13 mutation rates of each type of land per kanal worked out and reported by the Naib-Tehsildar Acquisition as under :-
(a) Bagh, Chahi Bari Abi & AbadiRs. 1,190 per kanal
(b) Bari Abi Greta, Abi & BariRs. 595.20-do--
(c) Kund and MairaRs. 297.60-do--
(d) Rakkar & KalsiRs. 148.80-do-- (e). BanjarRs. 74.40-do--
(f) Other GhairmumkinR s. 37.20-do- ' From the perusal of the above data prepared by the Naib-Tehsildar Acquisition the prices worked out on the basis of 13 mutation No, 1656 attested on 23rd July, 1966 an area measuring 3 Kanals 10 Marlas was sold against Rs, 700 at Rs, 200 per Kanal is unjustified. Therefore, rates seem also unreasonable. On the result of the circumstance explained above it was the only way to fix the prices of the area under acquisition on the average market price of the land in respective village Gojra for five years sale transaction occurred in the village. So get prepared a data of five years sale mutations preceding the date of notification i. e. 3rd May, 1967. As reported by the Naib- Tehsildar Acquisition 11 sale mutations bearing Nos. 1232, 1254, 1256, 1257, 1260, 1352, 1379, 1391, 1560, 1643 and 1686 have been attested for kund type of land during the prescribed period mentioned above i. e. 2 to 2nd May, 1967 through which 37 Kanals 9 Marlas kund kind of land has been sold against Rs, 1,643 at Rs, 438 per kanal. As reported that the other mutations are not to be taken into account for the reason that they were attested for mixed more than one kind of land in each case.
Agreeing with the report of Naib-Tehsildar Acquisition at the end I am of the opinion that the formula of five years average mentioned above is very reasonable and I fix the following class-wise rates of the land per kanal on the basis of the above 11 mutations attested during the five years period preceding the date of notification 4. The ratio of land according to the Parta Bandubasti per acre and the rates per kanal are recorded as under ;- {{TABLE}} Chahi, Bagh Bahir di Kund Rakkar Chari & Barri Abi Maira Kalsi Abi Bari Parta Bandubasti per acre 6.00 3.03 152 0.81 Price per kanal Rs, 1,755 Rs, 878 Rs, 439 Rs, 220 BANJAR OTHER GHAIRMUMKIN ABADI Parta Bandubasti per acre Price per kanal Rs, 110 Rs, 55 Rs, 1,755 {{TABLE}} ' As there is no Parta Bandubasti on the uncultivated kind of land has been recorded in the revenue record the rate of Banjar kind of land was fixed as half of Rakkar and other Ghairmumkin as half of Banjar. The land covered by village Abadi kind of land is fixed equal to the highest class of land as Rs, 1,755 per Kanal. The above rates worked out by the Naib-Tehsildar. Acquisition on the basis of sale transactions in village Gojra itself which are allowed. The affected persons' demand for the highest cost cannot be considered without any legal proof."
10. We must say that we are at once in agreement with these views of learned Collector. He has furnished quite weighty reasons in support of his view that mutations Nos. 1643 and 1686 alone could not form the basis for his award for the transactions recorded therein pertained to kund type of land and the price of Rs, 679 per Kanal at which it was shown to have been sold, was highly inflated when compared to the price of Rs, 297.60 per kanal at which similar type of land was sold in the vicinity one year before the publication under section 4 of the Act.
11. The learned counsel for respondents has made no grievance of the fact that the learned Collector was justified to take into consideration those mutations which were recorded for kund type of land during five years prior to the publication of section 4 notification on 3rd May, 1967, in preference to the ones relating to the sale of mixed type of land during the preceding one year. We can readily appreciate the reason for which this concession has been made for the formula of five years' average adopted by the Collector is more beneficial to respondents. But even so they are not satisfied. Mr. Fida Muhammad Khan their learned counsel argued that by declining to take into consideration mutations Nos. 1643 and 1686 the learned Collector had not only ignored the requirement of law but also the instruction of Committee of Tarbela Dam Project that mutations nearest in point of time to the date on which section 4 notification is published in official Gazette are to be preferred to those attested earlier. There cannot be any quarrel with this proposition, provided the mutations in question are free from suspicion and the transactions recorded therein are shown to be bona fide. In this respect we have the evidence of Muhammad Iqbal (0. W. 1)
(respondents' own witness), in which he has admitted that the instructions of committee of Tarbela Dam Project relate only to those mutations which are recorded on the basis of registered sale- deeds. And considering that no objection was taken to his evidence by respondents such as to have declared him hostile, they cannot possibly extricate themselves from the effect of that admission. Mr. Fida Muhammad Khan, however, argued that under section 91 of Evidence Act, Muhammad Iqbal could not be permitted to depose to the written contents of the said instructions without producing a copy of it on record. But he forgets that he was his own witness. In any event he did not deny that according t. The instructions of the Committee of Tarbela Dam Project, only those sale mutations are to be taken into consideration, which have been attested on the basis of registered sale-deeds. But all the same he attempted to wriggle out of the admission of his own witness, saying that in the absence of a copy of it having been brought on record his admission must be ignored. With respect we are not impressed by his submission which in view of the facts and circumstances of these cases appears to be only technical.
12. Even otherwise mutations No, 1643 and No, 1686 would appear to us to be suspicious. A look at mutations No, 1643 and 1686 respectively attested on 3rd June, 1966 and 17th November, 1966 would show that both of them relate to the sale of kund type of land. But even so the price recorded in one is Rs, 300 per Kanal whereas in the other it is Rs, 986 per Kanal. Faced with this position we do not see as to how the learned Collector could be blamed to look upon these mutations with suspicion, and in order to show that he had no option in the matter. Maulvi Siraj-ul-Haq the learned counsel invited our attention to a judgment of defunct West Pakistan High Court (from its Lahore Seat,) in the case of Land Acquisition Collector Rawalpindi v. Lieut-General Wajid All Khan Burki on that point. In this case the learned District Judge had relied on revenue mutations produced before him by Halqa Patwari but they were disregarded by their Lordships with these observations :- 'Before the learned District Judge, the General produced the Patwari who produced some mutations which evidence sale of pieces of land in the vicinity near about the time of compulsory acquisition. The learned District Judge accepted the prices mentioned in the market value of the land compulsorily acquired from the General as Rs, 40,000 per kanal. It is extremely common 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 the 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 a locality for a purpose which will enhance the value of the land in that vicinity reaches the owners of property in that locality prices go up. All these things have to be kept in view before coming to the conclusion what the market value of the price of land compulsorily acquired at the relevant time was. But as in his order dated the 27th of November, 1958, the learned District Judge accepted the prices mentioned in the mutations as correct overlooked some important matters which should have been kept in view."1
13. Some of these observations would appear to apply to the facts of these cases for long before mutations Nos. 1643 and 1686 were attested on 28th June, 1966 and 7th November, 1966 respectively. Considerable land in the vicinity of land in these cases had already been notified to be acquired for the purpose of Tarbela Dam Project and thus the possibility could not be ruled out that the prices shown in these mutations were deliberately inflated therefore, the learned Judge should have taken care not to have taken them into consideration without any proof of their contents, namely the exaggerated price of Rs, 679 per Kanal at which kund type of land was shown to have been sold therein.
14. We also agree with Maulvi Siraj-ul-Haq, the learned counsel that the learned District Judge had failed to appreciate the utility of revenue mutations. He contended that the object of revenue mutations is no more than in the nature of fiscal inquiries. And in support of his contention he relied on Privy Council Judgment in the case of "Thokur Nirman Singh and others v. Thakur. Lal Rudra Partab Narain Singh and others in which their Lordships had the occasion to lay down the following principle :- "Revenue mutations were no more than in the nature of fiscal inquiries instituted in the interest of the State for the purposes of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation 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 two mutations Nos. 1643 and 1686 could he relied upon by the learned District Judge respondents should have proved its contents by producing the evidence of vendor/vendee in order to establish the bona fide nature of the transaction recorded therein. It is conceded before us that no attempt in that regard had been made by respondent and thus they alone are to blame for their predicament.
15. Mr. Fida Muhammad Khan, the learned counsel however referred to a judgment of defunct West Pakistan High Court (from its Quetta Circuit) in the case of Collector, Quetta-Peshin Quetta, v.
Habibullah and others in order to show that in that case also only a revenue mutation was brought on record without the proof of its contents and the same was taken into consideration in assessing the market acquired land. We are afraid this is not the correct position. It is true that in the case the relevant mutation through which land had been sold earlier at a certain price in the same vicinity as that of the land in appeal before the High Court was taken on record as evidence but to prove its contents namely, the price at which the land was sold one Haji Lal Khan appeared as P. W. Who was examined and cross-examined.
' In these cases, however, nothing of this sort had been even attempted to be done and consequently the judgment relied upon by the learned counsel would not help respondents.
16. We have already reproduced passage from the award of the learned Collector to show his anxiety to do full justice to respondents. To begin with he took into consideration mutations Nos.
1643 and 1686. But declared to make them the sole basis of his award for very weighty reasons.
Thereafter he proceeded to take into consideration 13 other mutations relating to sale of mixed type of land in the same vicinity attested during the period of one year prior to the publication of section 4 notification. But these too were disregarded by him, for according to him, the average price worked out on their basis was to unreasonably work against the interest of respondents. It would thus be obvious that having disregarded both sets of said mutations, learned Collector was left with no option but to take into consideration 11 sale mutations in regard to kund land in the vicinity in order to determine the amount of compensation to which the respondents would be entitled. It is conceded that in these mutations were also included mutations Nos. 1643 and 1686 which were admittedly more favourable to respondents and it was, on these basis that the learned Collector relying on the ratio of land in Parat Bandu Basti finally determined the amount of compensation of various types of land acquired by him in all these cases.2 3
17. Mr. Fida Muhammad Khan the learned counsel for respondent has not taken any exception to this approach of Collector and quite rightly for in the absence of any other evidence on record this was the only method available by which he could determine the market value of the land. The reason for which we are mentioning this fact that the same objection, for which mutations Nos.
1643 and 1686 have been disregarded by us, would perhaps also arise in the case of these mutations. But in reality it could be met by a vai Id answer, whereas mutations Nos. 1643 and 1686 were as we have already observed attested at a time when considerable land in the vicinity had already been acquired for the purposes of Tarbela Dam Project, thus making it possible that the prices recorded therein were deliberately inflated, the mutations relied upon by the learned Collector were far removed from the target date of 3rd May, 1967 inasmuch as they encompass the antecedent period of five years. In these circumstances, the mutations in question would be free from suspicion and in the absence of any other evidence on record would appear to furnish to the Collector the proper basis to determine the market value of land of respondents.
' We are, therefore, satisfied that while the Collector had delivered his award strictly according to the principles bearing upon the determination of the amount of compensation in cases coming before him under the Land Acquisition Act, the learned District Judge had disagreed with him for reasons which cannot be supported.
' In this view, we would allow these appeals, set aside the judgment of learned District Judge, restore the one delivered by Collector with direction that parties should bear their own costs. PLD 1960 Lah. 469 AIR 1926 P C 100 PLD 1970 Quetta 35