1. ' This appeal has been filed by the Government of Sind against the judgment and decree passed by the learned District Judge, Khairpur in a reference being Reference No, 1/1981 in a Land Acquisition matter.
2. ' Land bearing Survey numbers 1363, 82, 83 and 84 situated in Gambat was required for public purpose by the Government for laying drainage under the Rural Drainage Scheme of Gambat.
3. According to the appellants a notice was issued by the Assistant Commissioner/Land Acquisition Officer under section 4 of the Land Acquisition Act on 7th of April, 1979 and 4th of September, 1979.
4. On 19th of December, 1979 possession was taken by the Government and on 30th of May, 1981 and award was given by the Assistant Commissioner/Land Acquisition Officer under this award the Assistant Commissioner/Land Acquisition Officer allowed some compensation for the Crops, 15% emergency claims and 8% interest but as these items are not contested I need not discuss them.
5. The controversy has risen on the compensation determined for the value of the land. The Land Acquisition Officer has awarded compensation to the owners at the rate of Rs, 4,000 per Acre treating it to be Banjar uncultivated agricultural land while the owners claim that is a commercial and residential land and the compensation should be fixed on yardage basic. They contend that if the compensation is paid on Acreage basis then it should be not less than Rs, 25,000 per Acre as the land in that area has a market value between Rs, 25,000 to Rs, 40,000 per Acre.
6. ' The owners' case is that all the mandatory provisions of the Land Acquisition Act have been violated in this case. They were never given a notice and the compensation of Rs, 4,000 which has been fixed for the land by the Land Acquisition Officer is arbitrary, without notice and as such without jurisdiction. It may be stated here that a small portion of the land belongs to one Muhammad Usman and the rest belongs to Mst. Aisha and Mst. Alia both minor daughters of Abdullah. Abdullah is brother of Muhammad Usman and real uncle of these minor girls. Objections were filed under section 18 of the Land Acquisition Act before the Assistant Commissioner/Land Acquisition Officer Gambat, District Khairpur on behalf of Muhammad Usman and the two minor girls Mst. Aisha and Alia questioning the validity of the award, dated 19th September, 1980 and praying that the matter may be referred to the civil Court for a proper evaluation and a proper determination of compensation by that Court. On these objections the learned Assistant Commissioner/Land Acquisition Officer made a reference on 29th of June, 1981 to the District Judge, Khairpur. Notice of this reference was given to the parties. The Government filed objections on the 12th of November, 1981 supporting the award and denying the claim of the owners for enhancement of the compensation. The learned District Judge consolidated these two objections and has disposed them of by a single judgment as Reference No, 1 of 1981. The respondents examined Muhammad Usman Exh. 4, Wasi Hyder Exh. 5 and Nasir Ahmed Exh. 6 in support of their case. They were cross-examined by the appellant Government. On behalf of the appellant Mazharuddin a Clerk in the Office of the Assistant Commissioner Khairpur was examined.
7. Muhammad Usman produced a general power-of-attorney Exh. 4/18 and a special power of attorney Exh. 4/19 executed in his favour by Dr. A bdullah a medical practitioner working in Saudi Arabia authorising Muhammad Usman to look after, supervise and manage the affairs of the minor daughters Aisha and Alia and to represent them before the Government or Barrage Department etc. In connection with the acquisition proceedings and to do all deeds, acts, things and matters necessary and conducive to attain the said objects which as a natural guardian he would have done had he been present personally to do all these acts. Muhammad Usman made a statement before the learned District Judge. Some portions of this statement need special mention and are produced below : "No notice whatsoever for acquiring this land was ever served on the owners of the land or attorney of the lands. No notice was also served on us even at the time of fixation of the value of the land and also at the time of passing award. All the above land acquired by the Government is situated within the local limits of Gambat Municipal Committee. The land is also surrounded by a number of residential, commercial, industrial and buildings such as hospital, telephone exchange, Inter- college, ginning factory, ice factory etc. The entire land had been purchased by us for the purpose of using it as residential-cum-commercial. At the time of acquisition of this land people used to purchase land in that vicinity by measurement of Acres as well as footage. At the time of acquisition of this land market rate of the adjoining lands was from Rs, 25,000 to Rs, 40,000 per Acre. I had obtained as much as 17 copies of mutation from the office of Mukhtiarkar Gambat to ascertain the prevailing market rate in that area during the years 1980 and 1981, which I produce as Exhs. 4/1 to 4/17 The Government had fixed Rs, 4,000 per Acre as value of the acquired land. On coming to know about award I had filed objections on my behalf as well as on behalf of the two minors which I produce as Exhs. 4/20 and 4/21. These objections were filed by me under section 18 of the Land Acquisition Act for making a reference to this Court. In fact the value of this land should have been fixed in between Rs, 25,000 and Rs, 28,000 per Acre."
8. ' He was cross-examined by the Government Advocate. The effort of the cross-examiner was to prove that this land had remained uncultivated but on the crucial point that the land was in heart of a commercial complex and as such the basis of determination of its value should be different from that of an agricultural land there is no cross-examination and as such this version goes unchallenged. He denied the suggestion that the lands in the vicinity were being sold at the rate of Rs, 4,000 to 5,000 per Acre. This witness has produced 17 certified copies of sale transactions which have been recorded in the revenue records of Gambat, District Khairpur. It may be stated that the sale transaction of agricultural lands may either be evidenced through the registered sale-deed or through the mutations in the record of rights in revenue record maintained by the Mukhtiarkar of the area. All these 17 transactions of sale fall in the second category. There are endorsements of the Mukhtiarkar that the entries evidencing these transfers are made on the basis of the statements made by the parties and in some cases on the basis of the registered sale deeds produced by the parties. There has been no cross-examination of the witness on these sale transactions proved through the certified copies of the revenue records obtained in due course from the revenue authorities. The supporting evidence to prove the value of the land came from two other witnesses Syed Wasi Hyder and Nasir Ahmed Zamindars of Gambat, District Khairpur. Wasi Hyder made the following statement :- "I have seen the land belonging to Muhammad Usman, Mst. Aisha and Mst. Alia. The land is about 50-60 yards from Ranipur road and behind the hospital and college. The land is situated between two roads, Ranipur road and Gambat Station Road and this entire area is being developed since last 10 years. The land is in the midst of cinema house, ice factory, ginning factory, hospital college, telephone exchange and other important buildings. The other lands adjacent to the above buildings and the lands under dispute are under cultivation. The land in that vicinity is being sold on Acreage basis as well as footage. The rate of the adjoining land is in between 16,000 and 22,000 but I cannot give the rate of footage. The land in question is within the local limits of Municipal Committee Gambat."
9. ' The third witness is Nasir Ahmed a Zamindar of Gambat, District Khairpur. He also made a short statement supporting the version that the value of the land should have been determined on totally different consideration than the Banjar land. Portion of his statement may be repro. Diced "I own lands in Deh Jamra, Deh Miani and Deb Gambat. 1 have seen lands in dispute. In the year 1980 I had purchased about 96 Acres of land in Deh Gambat in Rs, 17 lacs...............
10. ' The land in the area may be about Rs, 12,000 to 13,000 per acre in the year 1980. The area has now considerably been developed. Ginning factory is just adjacent to this land and a number of building have now been constructed in that locality. There is a road between the land in question and the land I purchased."
11. ' In rebuttal Mazharuddin a clerk of the office of Assistant Commissioner Khairpur has been examined but besides talking about the formalities of issuing notices, he has not said a word about the area or the importance of this land in that area from commercial point of view. In his cross- examination he has proved the case of the respondents on the point that no publication was made in the official Gazette before the land was acquired and has admitted that "No notice was also served or issued to the affected parties in the instant case before passing the award of compensation. The award was passed only on the basis of the report submitted by Mukhtiark and without making further inquiry.... According to the file the Assis Commissioner did not inspect the site before passing award in this case. Notification under section 9 of the Act is not published but the notification issued under sections 4 and 6 of the same Act are required to be published I the instant case. I have no copy of the gazette notification on record to show that these notifications were published." On this state of affairs the learn District Judge has rightly held in his order that the proceedings were not in consonance with the requirement of law and could be quashed if the respondents had so desired but they have not done so and are only pressing for enhancement of the compensation of the land. I. Have carefully read this rather detailed and long order passed by the learned District Judge and have an impression that he was dealing with a case in which no material was brought before him to rebut the contention of the owners of the land that the land was situated in a Commercial area which was fact growing commercially, that the location of the acquired land was such that the Government offices and other commercial houses were existing all around, that there were public roads running along the land, that there were sale transactions in which some lands were sold on yardage basis also. All these allegations remain unchallenged. The assessm ent of the value of the land was made on the basis of only a single sale reported by the Mukhtiarkar in respect of some sma ll piece of land in that vicinity. The learned counsel for the respondents explained that this was a very small piece and the owner did not brother to question the assessm ent of 4,000 per acre. This insolated and single transaction has been made the basis to determine the value of the land in question by the learned Assistant Commissioner. In my opinion there was no material placed before the learned District Judge to show that the assessm ent at the rate of Rs, 4,000 was justified. There is no material before me to differ from the value which has been determined by the learned District Judge in the Judgment. But it appears to me that there was no satisfactory evidence before the learned District Judge either to reach at such a figure at which he has set his valuation.
12. ' The learned counsel for the appellant has raised two formal objections ; which I would dispose of first one (1) that the reference is beyond limitation No, 2 (2) that Muhammad Usman could only agitate the grievance for the land which belonged to him and could not represent the two minor girls because, according to the learned counsel the power-of-attorney executed in his favour by the father of the two girls was invalid. The learned counsel contends that when both and father and mother of the girls are alive the mother should have executed the power-of-attorney as the father is living outside Pakistan. For this argument he has relied on a case reported in PLD 1968 Kar.
774. This was a case under the Guardians and Wards Act. The parents of the child were living separately and the mother of the child was divorced. There were cross-actions between husband and wife under section 25 of the Guardians and Wards Act by the father and under section 488, Cr.
13. P. C. By the divorced wife. The mother was living at Kuwait while the father was living in Karachi. In that context the order came to be passed under the Guardians and Wards Act. It has no bearing on the facts of the case before me.
14. ' On point of limitation the learned counsel for the appellant has contended the award was made on 19th September, 1980 and application objecting to the award praying for a reference to the Court was moved on 18th June, 1981. As such it was beyond the statutory period of limitation prescribed under section 18. In support of his contention the learned counsel has relied on a case reported in PLD 1979 Quetta 20. The learned Judge Mir Hazar Khan Khoso, 5 after examining a large number of cases for and against the point of view whether the question of limitation could or could not be raised before the District Judge agreed with the view that it could raised and be examined by the District Judge. I need not make an attempt to reconcile the conflicting judicial opinion of equal weight and authority on the point because in the present case this becomes extraneous to the issue. In the present case the findings of the learned District Judge are that the entire proceedings starting from the first declaration that the property was required for a public purpose and ending in the' award were without jurisdiction because the mandatory provisions of the1 Land Acquisition Act were completely ignored and all the proceedings were held without any notice and without any knowledge to the owners of the property. Limitation has a point of start and a point of terminus. Unless the point of start exists an attempt to fix the point of terminus would be meaningless. The whole burden of the song of the owners in this case is that every thing happened at their back without their knowledge and without notice to them. As such the question of limitation in this case does not arise and I would hold that the reference by the Assistant Commissioner to the learned District Judge was within time and competent.
15. ' The third contention of the learned counsel was that the enhancement of the compensation from Rs, 4,000 to Rs, 15,000 is not justified. According to the learned counsel the evidence produced by the owner of the land in the shape of 17 transactions was not trustworthy and could not be relied upon because mere production of the revenue record without examining the purchasers or the sellers involving these transaction was not enough. He relied on a reported case PLD 1976 Pesh.
50. The view taken in this case supports the contention of the learned counsel. Relevant para. From this judgment may be produced :- "It is well-settled that the burden to prove their entitlement for higher compensation was on respondents. But they have not discharged this burden. ' The mere abduction of Q. W. 1/1 in evidence was entirely insufficient. It was the burden of respondent to examine some of the parties to the sale-transaction recorded therein. But admittedly they chose not to do so. And the presumption would, therefore, be that had the summoned some of the parties to these transactions, they would not have supported their case."
16. ' If this evidence is excluded from consideration then the only evidence in favour of enhancement would be the oral version of Muhammad Usman and two others Zamindars namely Wasi Hyder and Nasir Ahmed. The question arises whether these oral versions based merely on conjectures and surmises would be sufficient to inspire confidence and fulfil the requirements of section 23 of the Land Acquisition Act. Section 23 of the Act may be reproduced for ready reference :-
23. Matters to be considered in determining compensation.-(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration first, the market-value of the land at the date of the publication of the notification under section 4, subsection (1) ; ' Secondly, the damage sustained by the person interested, by reason of the taking of any standing crop or trees which may be on the land at the time of the Collector's taking possession thereof ; ' thirdly, the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land, by reason of serving such land from his other land ; ' fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of acquisition injuriously affecting his other property movable or immovable, in any other manner, or his earnings ; ' if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change ; and ' sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
(2) In addition to the market-value of the land as above provided, the Court shall in very case award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of acquisition."
17. ' After reading the section there is no doubt that much remains to be done to prove the value of the land. It is true that the evidence on behalf of the Government is most unsatisfactory and the basis of assessm ent by the Assistant Commissioner unreasonable and ridiculous but this is no answer to say that Rs, 15,000 per Acre determined by the learned District Judge should be treated to be a fair and reasonable assessm ent. In the ultimate analysis it may be found to be equitable and a fair assessm ent but for the present it cannot be said that this assessment is based on a proper and convincing evidence of the market-value of the property and is in consonance with the requisitions of section 23. Looking to the statements of the owners and the two Zamindars it cannot be denied that the land is situated in a town area of commercial importance and its assessment on the basis of Banjar land is to say with respect to the Assistant Commissioner most ridiculous. If I revise this value it would be as arbitrary decision as the one under appeal. The contention that the version of the plaintiffs remains unchallenged and unrebutted and as such should be accepted is no answer to the requirements of law which prescribes the rules and sets standard for just and proper determination of the value. Nor failure to produce evidence in support of the assessment by the Assistant Commissioner is a substitute to the mandatory provisions of law clearly laying down guidelines for proving the value of the land. If these 17 transactions for which certified copies of the revenue record have been produced are proved according to law, through their executants the value may be found more than what has been awarded by the learned District Judge. But until that happens the decree of the learned District Judge suffers from lack of proper material to justify the assessm ent at Rs, 15,000 per acre. In the circumstances I have no option but to remand the case to the learned Judge to allow opportunity to the parties to produce proper evidence in support of their points of view and then dispose of the reference according to law. The judgment and decree is set aside, the appeal is allowed and the case is remanded to the District Judge for fresh disposal.