' AFTAB HUSSAIN, J.-This order will dispose of R. F. As. Nos. 12 to 39, 48, 49, 93 to 125 of 1972 since they arise out of two consolidated judgments in reference of acquisition of the property made by the same notification and for this purpose.
2. The lands of the appellants and some others were acquired in pursuance of West Pakistan Government Notification No, N-VIII-357/ 10441, dated the 10th October, 1966 issued under section 6 of the Land Acquisition Act. By this notification area in villages Lakhan, Jhewre, Kallory, Kotha Kalan, Mohra Faqiran, Kotha Khurd, Malikpur, Jarahi, Mohri Ghazen, Khatans and Dhaman totalling 3,336 kanals was acquired for defence purposes. The notification under section 6 of the Land Acquisition Act. No, XVII-357/7856, dated the 3rd May, 1967 was also thereafter published. The provisions of sections 5 and 5 (1) of the Land Acquisition Act were waived and a notification under section 17(4) was published in the Gazette of Pakistan. By the award, dated the 28th September, 1967 the Collector divided the entire land into three special blocks. The land in Block 'A' consisting of 251 kanals 19 marlas of area in Mohri Ghazen and 57 kanals 11 rnarlas in village Jhawar, totalling 309 kanals 10 marlas was considered to be potential building site. It was found that this area was situated at a distance of about 3 or 4 furlongs from the main built up area and the rate per Kanal on one year's average varied from Rs, 3,987 to 13,500 for various classes of land. The Collector, therefore, fixed the market price of this area of a sum of Rs, 4,000 per Kanal.
' Block No, 2 consisted of 106 kanals 19 marlas of land in village Lakhan. The whole area under the blocks comprised of Maira class of land for which the average price was worked out at a sum of Rs, 1,740 per Kanal and the same was awarded.
' The rest of the land fell in Block No,
3. This land comprised different kinds of soil. Some of the area was maira while some was chahi and Lapra.
' He distributed the area into further three categories keeping in view its classification as agricultural land i. e. Chahi, Lapra and Maira. The area of Mohri Ghazan which was not included in Block No, 1 was included in the third block. It was found that the average price in the village came to Rs, 13,500 but the Collector did not allow this value on the ground that this price appeared to be the value of the building site. He found that the average price in Kotha Khurd came to Rs, 6,000 per kanal for Chahi land but the date on which this was worked out was on one mutation sanctioned on the 29th March, 1966 between father and son. It was held that this was done with a view to inflate the price since the land owners concerned must have got a clue of the impending acquisition. Treating the cost of the area of Mohri Ghazan, Khatana and Koth Khurd as Chahi he fixed its value at a sum of Rs, 1,600 per kanal. Lapra in villages Mohri Ghazan, Dhama Kotha Khurd, Khatana and Kallrey was valued at a cost of Rs, 1,593 per kanal only on the basis of average of sales in village Khatana. The Maira land in Mohri Ghazan and other villages fluctuated in value. The Collector held that the land of village Dhaman was the main component of this class of land in block No,
3. The price of Maira class of land on one year's average basis of village Dhama comes to Rs, 408 per kanal while that of village Khatana comes to Rs, 680 per kanal. The value of the area in Mohri Ghazan and Phaware was Rs, 3,078 and Rs, 3,634 per kanal but the Collector did not apply that value on the ground that there was not the tur index of the price of agricultural land. Treating the whole block to be at par he assessed the value of Maira class of land in village Khatana and awarded a sum of Rs, 700 per kanal. Some land which was owned by the Provincial Government or which was evacuee in character or which was under the factory was excluded.
3. It may be stated that the claim of the land owners was that the entire area was within the Cantonment limits and was a potential building . Site. The Collector did not agree with this contention and as stated above, he treated only the area in Block No, A to be a building site.
4. Only the land owners of village Mohri Ghazan, Jhaware, Kotha Khurd; Kotha kalan, Khatana, Dhama, Mohri Faqiran, applied for reference to the Civil Court under section 18 of the Land Acquisition Act. The land owners of village Lakhan, Jarohi and Kallrey felt satisfied with the award.
The Administrative Civil Judge disposed of some of the references by order, dated the 24th July, 1971 and raised the value per kanal in village Mohri Ghazan to Rs, 11,500 and the value in villages, Jhaware, Kotha kalan and Kotha Khurd to Rs, 10,000. Fifteen per cent acquisition charges and interest at the rate of 61 per cent from the date of award was also awarded. Other references were disposed of by an order, dated the 31st July, 1972. These references related to villages Khatana, Dhama, Jarahi, Kotha Khurd and Mohri Faqiran where the value awarded was raised to Rs, 10,000 per kanal. The rise in the value was justified on the ground that the entire area acquired in these villages was potential building site. To arrive at this conclusion the learned Administrative Civil Judge took the following matters into consideration :-
(1) The area in question adjoins a thickly populated locality known as Bakar Mandi which was a regular shopping centre having a Branch of the United Bank Limited.
(2) A Biscuit Factory was near the acquired land.
(3) Some land in the occupation of the Defence Authorities had been turned into grassy ground.
(4) Over some area had been constructed a multi-storied building.
5. The learned Administrative Civil Judge also acted upon his own observation that some of the land acquired was being used as potential building site and the rest of the land had all the potentialities of being used as such.
6. We are not satisfied with the judgment of the learned Administrative Civil Judge which to say the least is perfunctory. It does not at all discuss the oral or the documentary evidence althought we find that a number of witnesses had been produced and a number of documents had been proved and relied upon by the parties. In the absence of any discussion of the evidence on record the judgment in our opinion is not in accordance with the provisions of Order XX rule, 4, C. P. C.
Which provides that the Court's judgment shall contain reasons for decision. Clearly, the points for decision could not be complete without reference to the entire evidence on record.
7. We have gone through the entire record carefully with the assistance of the learned counsel for the parties. We shall consider the evidence of two categories of cases one decided in the year 1971 and the other decided in the year 1972 separately.
8. Although the evidence of the parties is given in a number of cases but we find that there was an order of consolidation in the record of References Nos. 103, 73, 52 and 102 of 1968 (R. F. A. Nos. 14, 15, 20 and 28 of 1972 respectively). In Reference No, 103 of 1968 (R. F. A. No, 14 of 1972) there is a statement by which References Nos. 10, 103, 17, 58, 81, 52, 53, 102, 62, 3, 12, 64, 71, 48, and 2 of 1968 (R. F.
A. Nos. 12, 14, 17, 18, 19, 20, 25, 28, 29, 30, 32, 36, 95, 108, 1 1 1 of 1972, respectively) were consolidated.
Similarly there is an order, dated the 2nd June, 1970 for consolidation of References Nos. 10, 18, 52, 9, 34, 101 of 1968 (R. F. A. No, 12, 13, 20, 23, 27-, 34 of 1972 respectively). Again in the record of Reference No, 102 of 1968, an order of consolidation of References Nos. 27, 61 and 64 of 1968 (R. F. A. Nos. 35, 31 and 36 of 1972 respectively) is to be found. In Record of Reference No, 73 of 1968, there is an order for consolidation of References Nos. 49, 62, 14 and 63 of 1968 (R. F. A. Nos. 39, 29, 16 and 22 of 1972 respectively). Thus, practically all cases out of which arise R. F. A. Nos. 12 to 39, 48 and 49 of 1972 (Except R, F. A. 19) have been consolidated.
9. The evidence of the parties has been recorded only in some cases :-
(i) In the record of References Nos. 10, 18, 73, 14, 63, 9, 62, 61, 101, 27, 15 and 49 of 1968 (R.F.A. Nos. 12, 13, 15, 16, 22, 23, 29, 31, 34, 35, 37 and 39 of 1972) is recorded the evidence of Ch. Muhammad Aslam, Assistant Commissioner, Jhang, who was posted in the year 1967 as Land Acquisition Collector and had given the impugned award. He stated in the cross-examination that in the revenue estate of Mohri Ghazan the area acquired comprised of 88 houses while in village Kotha Khurd the area included only 3 houses. According to one year's average of sales in village Kotha Khurd the price per Kanal came to Rs, 6,000 but he awarded Rs, 16,000 per Kanal. Similarly in Mohri Ghazan the average price came to Rs, 13,500 but he assessed the value at the rate of Rs, 1,600 per Kanal while the area of 16 kanals 18 marlas only was treated as building site for which the compensation was awarded at the rate Rs, 4,000 per Kanal. He admitted that the entire area acquired from different villages formed one block. He also admitted that the village Mohri Ghazan and Jhaware are in close proximity to the metalled road which passed through village Kotha Khurd. He also admitted that there is a Pacca road in village Kotha Khurd. Similarly, reference was made to average sale price of some villages and the price awarded by the award. It is not necessary to mention those villages since either the average price is less than the price awarded or it is almost equal.
(ii) Two witnesses, Lal Khan P. W. 1 and Abdul Qayyum P.W. 2 were examined in Reference No, 103 of 1968 (R. F. A. No, 14 of 1972). The latter produced the files of acquisition about Dhamyal ground. Lal Khan P. W. 1, Mukhtar-e-Aam, of the claimants in that case stated that the entire land was levelled and were classified as Maira, Sakani and Chahi. It has houses. A road passed through it. It was in cantonment limit. There were facilities of electric and water supply. According to him the land was worth Rs, 8,000 per Kanal. This statement pertains to the land in village Mohri Ghazan. According to him the average price of land in village Lakhan was Rs, 1,740 on the basis of which the compensation was awarded. He also admitted that the value of the land in village Dhaman was Rs, 408 per Kanal but the value awarded was in excess of it and was at the rate of Rs, 700 per Kanal.
(iii) In Reference No, 22 of 1968 (R. F. A. No, 29 of 1972) there is some oral as well as documentary evidence. The oral evidence consists of the statements of Lal Khan, Muhammad Akbar, Lal Hussain on behalf of the claimants respondents and Ch. Muhammad Aslam P. W.
1. The statement of Ch. Muhammad Aslam is the same as the statement in the cases referred to above. Lal Khan stated that a part of the acquired land was within the cantonment limits and a part of its was outside such limits. Electricity and water facilities were available. The market value of the land in village Jhaware was claimed to be between Rs, 8,000 to Rs, 10,000 per K anal but it was admitted that "we have been selling land in dispute at the rate Rs, 6,000 to Rs, 8,000". Muhammad Akbar stated that there were also a Biscuit Factory and a Poultry Farm nearby and the value of the land at the time of acquisition was between Rs, 10,000 to Rs, 12,000. He produced in evidence the copies of the mutations Exh. P. 2 and P.
3. Lal Hussain assessed the value of the land in village Jhaware from Rs, 6,000 to Rs, 8,000 but he claimed Rs, 8,000 per Kanal. In cross-examination he admitted that the land in dispute at the time of acquisition was being used both for agricultural and residential purposes, but most of it was under housed. Exhs. P. 2 and P. 3 are sale mutations. The area in Exh. P. 2 is of Khasra No, 39 (6 mar/as). It was sold for a sum of Rs, 2,000 after issuance of notification under section 4 of the Land Acquisition Act. The other mutation (Exb. P. 3) pertains to Khasra No, 90/4 (1 kanal) sold for a sum of Rs, 12,000 by sale-deed, dated the 18th May, 1967. This sale also pertains to the period after notification under section 4 was issued.
(iv) The evidence in Reference No, 100 of 1968 (R. F. A. No, 21 of 1972) also consists of oral as well as documentary evidence. The oral evidence comprises of P. W. 1, Irshad Ahmad Patwari Land Acquisition, Hukam Dad P. W.
2. Mumtaz Muhammad Khan, Naib-Tehsidar P. W: 3 and Anwar Baig Claimant P. W.
4. Irshad Ahmad Patwari produced the record of demarcation of property which was clearly under acquisition of the military authorities from the property not so under acquisition. He stated the Khasra No, 1124 (3 kanals 2 marlas in Mohri Ghazan) was not under requisition of the military department. P.W. 2 Hukam Dad proved the application for demarcation Exh. P. 1, his report on Exh. P.
2 proving that 3 kanals 9 marks of land was outside< the earlier requisitioned area. Mumtaz Muhammad Khan Naib-Tehsildar proved his report Exh. P. 3 in the same proceedings which also supported the above claim of the claimant. Anwar Baig P. W. 4 claimed an amount of Rs, 4,000 per Kanal for the above area of 3 kanals 2 marlas. He further stated that the compensation of the land already under acquisition was also insufficient. Similarly he challendged the correctness even of the compensation of Rs, 4,000 per Kanal in village Mohri Ghazan. According to him the rate of the land was about Rs, 8,000 per Kanal at the time of his statement and the rate of the t hahi land was Rs, 13,000 per Kanal. He relied upon Mutations Exhs. P. 4 and P.
5.
Exhs. P. 1 to P. 3, as stated above, relate to the proceedings of demarcation. Exh. P. 4 is the mutation of sale of Khasra No, 1404 in village Mohri Ghazan bearing an area of 6 kanals 7 marlas out of which an area of 1 kanal 10 marlas was sold for a sum of Rs, 21,000. Exh. P. 5 is mutation of sale of Khewat No, 99 (6 marlas) for a sum of Rs, 6,800 by a registered sale-deed, dated the 6th October, 1964.
(v) In Reference No, 102 of 1968 (R. F. A. No, 28 of 1972) Raja Hukam Dad, applicant in that case, and Mazhar Hussain Shah applicant were examined on behalf of the claimants while the same statement of Ch. Muhammad Aslam was recorded as R. W. L The claim referred to land in Kotha Kburd. Raja Hukam Dad stated that the land in dispute comprised Chahi and other kind of land and its market value was Rs, 13,000 per kanal. He further stated that the other land i. e., the land other than Chahi land was worth Rs, 5,000 to Rs, 6,000 per kanal ; but he claimed for this kind of land compensation at the rate of Rs, 8,000 per kanal. Mazhar Hussain Shah stated that in village Khurd Kalan Sui Gas was available. A road passed near the land in suit ;water and electricity facilities were available. There was Biscuit Factory and a number of Poultry Farms. The market value of the land was Rs, 10,000 per kanal. He himself purchased the land by mutation tion No, 72 (Exh. P. 1) at the rate of Rs, 3,000 per kanal.
(vii) Mutation No, 82 was marked as Exh. P.
2. It is, dated the 31st May, 1966 and proves the sale of Khasras Nos. 66, 661/16, 20 and 19 (Total area 2 kanals 1 marla) for a sum of Rs, 6,000. Mutation No, 72 was marked as Exh. P. 1 and proves the sale of 10 marlas of land in Khasra No, 680/142 for a sum of Rs, 1,500 on the 1st April, 1967, after the issuance of notification under section 4. These documents are found on the file of Reference No, 61 of 1968 (R. F. A. No, 31 of 1972).
10. All the cases which have been decided by order, dated the 31st July, 1972 and the appeals of which range from R. F. A. No, 93 of 1972 to R. F. A. No, 125 of 1972, were consolidated by an order passed on the 8th March, 1972 in Reference No, 2 of 1968 (R. F. A. No, 111 of 1972).
11. The records of References Nos. 20, 25, 30, 4, 79 of 1969 (R. F. A. Nos. 93, 104, 113, 119 and 122 of 1972 respectively) contain certain mutations but they have not been tendered or exhibited. The entire evidence has been led in the record of Reference No, 2 of 1968 (R. F. A. No, 111 of 1972). This evidence consists partly of oral evidence and partly of documentary evidence.
12. Muhammad Iqbal Patwari, P. W. 1, produced the revenue record of the village.
' Qazi Muhammad Akhtar Patwari, P. W. 2, who was previously posted as Patwari, Halqa Dhamyal at the time of acquisition proceedings in villages Dhaman, Khatana Jarahi and Kotha, proved a plan Exh. 'A' as correctly denoting the land acquired from the various status. He stated that the entire land is in one compact block and falls within the cantonment limits. It was surrounded by houses, bungalows and other structures. The entire area is connected with roads. He further stated that there being a Military Camp on the land acquired, the electricity polls could not go beyond the said Camp ; otherwise the surrounded areas had facilities of electric supply. There was a thickly populated area known as Bakar Mandi, a Biscuit Factory and a hospital contiguous to and in the vicinity of the acquired area. The entire area according to him, can be used as building site. In cross-examination, he admitted that no cantonment tax had so far been levied in the area nor did the area have any facility of water supply for drinking purposes. The Bakar Mandi was at a distance of 2 furlongs from the area and there was no regular hospital.
' Riaz Hussain, P. W. 3, stated he had brought an official plan of the cantonment. According to him the area acquired in villages Khatana, Kotha Khurd, Dhaman, Jhaware and Mohri Ghazan was included in the cantonment limits in 1957. He proved letters Exhs. P. 1 and P. 2 which are said to have been issued by the cantonment office. Although he made reference to plan hrought by him but no effort was made to get it proved.
' In cross-examination, however, he admitted that according to that plan the area of Mohri Ghazan only lay inside the cantonment limits while the remaining area was outside it. Village Dhaman and Jarahi, Jhawere or Mohra Faqiran were not shown in the plan. Similarly the word "Khatana" appeared outside the boundary line of the cantonment. The plan marked 'A' according to the witnesses did not tally with this plan since the former plan was not prepared on scale.
' Ch. Bashir-ud-Din Ahmad, P. W. 4 who was posted as Tehsildar from 1964 to 1967, stated that the entire land was within the cantonment limits and was of the urban nature. There was a net-work of metalled road and all the amenities which are available to a town were available there. According to him, the market value of the area acquired "ranges" from Rs, 10,000 to Rs, 15,000 per kanal. This appears to be the rate prevailing on the date he made the statement. On a Court question, however, he stated that the land during his tenure of office as Revenue Officer was sold at the rate ranging from Rs, 10,000 to Rs, 20,000.
' Muhammad Sadiq petitioner, P. W. 5, stated that all these areas were building sites and had facilities of electricity, Sui Gas and water. He fixed the value as ranging from Rs, 10,000 to Rs, 20,000 per kanal. In cross-examination he admitted that inhabitants of all these villages depend for their living upon agriculture, defence services and are also locally employed on daily wages. He admitted that the Defence Department banned construction of houses in the villages under reference. It is clear from his statement that he had not sold or purchased any land before the acquisition in any of the villages under reference. It appears that one Muhammad Siddique was brought as a witness on behalf of the respondents but he was not produced. In reply to a query in cross-examination the witness stated that the land of Muhammad Siddique which was Ghair Mumkin and was sold for Rs, 5,000 but it was situated at a distance of 4 miles from the acquired area. He did not know whether Nazar purchased 67 kanals of land for Rs, 8,000 in 1965.
' Muhammad Bashir Secretary, Union Council, R. W. 1, brought with him the original plan showing boundaries of Union Council, Dhamyal. He stated that villages Dhaman, Khatana, and Jhawere fell within the limits of the said Union Council. A few houses of village Kotha Khurd were also within the area of Union Council but rest of the area fell within the cantonment of Rawalpindi. Similarly, the Abadi of village Mohri Ghazan was within the Union Council. In cross-examination he stated that the area of villages Kotha Kalan, Kotha Khurd, Dhaman, Khatana, Jarahi, Mohra Faqiran and Mohri Ghazan lies in one belt and is of the same market value. One Biscuit Factory, Poultry Farms and other bungalows are built in the vicinity of the acquired land. Bakar Mandi was also situated nearby. Lalazar Colony is near the land acquired.
' Manzoor Ahmad Patwari R. W. 2 prepared the chart of average sale price for villages Mohra Faqiran, Dhaman and Jarahi (Exhs. R. W. 2/1, R. W. 2/2 and R. W. 2/3) from the Register of Mutations.
He did not have any knowledge about the location of the acquired area.
' Muhammad Riaz Patwari R. W. 3 stated that he had carried out measurement of the land sought to be acquired at the time of its acquisition. There were no schools or bazars on the land acquired nor were any roads. The supply of electricity was confined to the Air Field and the Camp. The market value of the land, according to him, ranged from Rs, 100 to Rs, 400. He admitted in cross- examination that there were some bazars and bungalows nearby as well as a factory. But one bungalow, according to him, was constructed about a year ago.
13. The site plan marked 'A' only shows the relative location but it is not otherwise helpful since it does not denote the Khasra Numbers of the area. It is also not possible to find from this document as to which area has been assessed in the award at a sum of Rs, 4,000 per kanal. Exh. P. 1 is a certificate from the Executive Officer, Rawalpindi Cantonment, stating that the private land in Rawalpindi Cantonment is being sold for residential purposes on a value ranging from Rs, 6,000 to Rs, 15,000 per kanal. Exh. P. 2 is a similar certificate of the Executive Officer, Rawalpindi, stating that Dhamyal Camp and the Air Field Dhamyal are situated in Rawalpindi Cantonment limits. Four Mutations Exhs. P. 5, P. 6, P. 7 and P. 8 were also proved. Exhs. P. 5, P. 6 and P. 8 which are mutations of village Khatana, all attested on the 29th March, 1966, prove the sale of plots of 10 marlas each for consideration of Rs, 4,000. The value per kanal comes to Rs, 8,000. Mutation No, 68 is Exh. P. 7 evidencing the sale of 8 kanals 5 marlas in village Khatana for a sum of Rs, 41,250. This sale was attested on the 28th April, 1966 and brings down the value to about Rs, 5,000 per kanal.
14. Several documents were proved on behalf of the appellants. Exh. R. W. 2/1 is the average of one year's sales in Mohra Faqiran. It refers only to one Mutation No, 45 which was attested on the 20th April, 1966. And by which an area of 10 Kanals 5 Marlas was sold for a sum of Rs, 15,020.41. The value of one Kanal was worked out at Rs, 1,140. Exh. R. W. 2/2 is a statement of one year's average sale of village Dhaman. It has been drawn on the basis of Mutation No, 227 attested on the 30th June, 1966, and, evidences a sale of 3 Kanals 18 Marlas of Banjar Qadeem land for Rs, 2,500. The average per Kanal being Rs, 641. Exh. R. W. 2/3 is one year's average of sales of village Jarahi drawn on the basis of three Mutations Nos. 223, 237, 241. The average value was worked out at a sum of Rs, 820. The latest mutation in this document is Mutation No, 241 which was attested on the 11th April, 1966, and by which an area of 6 Kanal 2 Marlas was sold for a sum of Rs, 6,000.
15. A number of mutation (Exhs. R. 1 to R. 32) were also proved. These pertain to villages Jarahi, Mohra Faqiran, Khatana, Dhaman and Jhawere. Exhs. P. 1 to P. 7 relate to village Jarahi, Exhs. R. 8 to R. 10 to village Mohra Faqiran, Exhs. R. 11 to R. 16 to Khatana, Exhs. R. 17 to R. 28 to village Dhaman and Exhs. R. 29 to R. 32 relate to village Jhawere. The particulars of these mutations are as follows:- {{TABLE}} Date of attes- I Name Exhibit I Quality of I Area Considera- I tation of I of No, I land sold I tion Mutation Village K. M.
R. 1 Maira 0-10 150 10-11-65 Jarahi R. 2 Maira 1-4 250 24-3-66 ,, R. 3 Ghair Mumkin 2.0 1,000 28-4-66 R. 4 Ghair Mumkin 4-6 900 '0 R. 5 Maira 1-3 230 23-11-65 '0 R. 6 Maira 1-4 250 29-3-66 Jarabi R. 7 R. 8 Maira Maira 3-2 10-17 1,000 600 3-5-65 27-10-62 MohraFaqiran R. 9 Maira 7-15 600 29-6-63 R. 10 Maira 2-15 270 9-4-65 R. 11 Lapara 2-3 1,000 1-1-63 R. 12 Maira 3-4 300 22-3-65 Khatana R. 13 Ghair Mumkin Gar 11-8 2,500 23-11-65 R. 14 Maira 5-17 4,000 8-2-66 R. 15 Lapara 1-10 3,000 29-3-66 R. 16 Lapara 0-18 1,000 27-3-66 R, 17 Ghair Mumkin 128-0 8,662/8 18-7-56 R. 18 Banjar Qadeem 93-16 3,000 21-5-59 R. 19 ,, 1-3 435 15-9-60 R. 20 Ghair Mumkin 2-13 500 6-5-65 R. 21 Maira 3-0 6,000 5-6-65 R. 22 Ghair Mumkin 3-0 2,500 28-9-65 R. 23 Maira 18-10 4,600 31-1-66 'R. 24 Maira 11-12 3,000 31-1-66 R. 25 Maira 12-10 5,000 16-5-66 R. 26 Banjar Qadeem 5-10 3,000 30-6-66 Dhaman R. 27 99 6-7 4,000 R. 28 Maira 4-0 1,733 18-1'0-66 R. 29 Maira 0-7 1,000 14-6-66 Jhawere R. 30 Maira 1-0 3,000 30-6-66 R. 31 Maira 1-1 25,000 12-10-66 R. 32 Maira 1-1 2,500 18-10-66
16. The learned counsel for the appellants argued that none of the evidence had been considered in the two judgments by the learned trial Judge. He had also not considered that in certain cases, e. g. Reference No, 74 of 1968 (R. F. A. No, 101 of 1972) and Reference No, 23 of 1968 (R. F. A. No 102 of 1972) the land owners had demanded much less in their reference than was granted to them. In reference No, 74 of 1968 (R. F. A. No, 101 of 1972) the respondents had demanded Rs, 5,000 per Kanal for Khatana and in the other case they demanded Rs, 6,000 per Kanal for village Dhaman. Similarly, the evidence of respondents' witnesses in some cases proved such less value. He further argued that the Land Acquisition Collector had given a reasoned award in so far as classification of land was concerned.
17. Sh. Ghias Muhammad, Advocate, appearing for the respondents in R. F. A. Nos. 93, 97, 107, 111, 114, 116 and 117 of 1972 argued that the land in question had not been put to agricultural use since 1942 when an area of 1497 Kanals 6 Afarlas was requisitioned and taken on lease by the Air Port Authorities. Consequently it was not assessable as agricultural land. He further argued that having regard to the probable future use and potentialities, this area had been rightly assessed as a building site. Similarly the award as treating a part of the land as agricultural is fallacious as the Collector disregarded the nature of the present use of the land and omitted to consider the factor of potentiality. He relied upon the admission made by R. W. 1 that the entire area composed of a compact block and argued that various parts of the land could not be assessed differently. He further argued that such factor that the Government had imposed restrictions on construction in the year 1964 under section 3 read with section 7-A of the Works of Defence Act XVII of 1903 was of no consequence for determining the nature of the land. Lastly, he argued that the transactions which had taken place after the issuance of the notification under section 4 of the Act could not be ignored. To support his arguments the learned counsel referred to an illustration of the case of Syed Ahmad Hassan and Syed Muhammad Hussain (Reference No, 11 of 1968) against which the Government had not filed an appeal. On this basis he argued that this amounted to acceptance by the Government of the value fixed by the learned Administrative Civil Judge. The learned counsel for the respondents referred to the nearness of the area acquired to Lalazar for which there is no evidence on record. Mr. Muhammad Iqbal, Advocate appearing for the respondents in R. F. A.
Nos. 15 and 18 of 1972 argues on the same lines but he added that the fact that on account of restrictions placed upon the building on the same area in 1964 the Government cannot plead that the area in dispute was not a building site. He urged that since the respondents were deprived by the appellant of their right to build, the appellant could not, turn back to say that the area in dispute was not a building site.
18. Mr. S. M. Chaudhry, Advocate, appearing in R. F. A. No, 94 of 1972 argued that Msr. Gul Jehan respondent had died on the 30th May, 1971 but her legal representatives were impleaded on the 3rd September, 1971. The appeal was, however, only against one legal representative namely, Asmat Khan while the other three legal representatives had not been impleaded. Although these respondents had been impleaded on the 15th November, 1974, but the learned counsel argued that by that time the appeal had abated.
19. We agree with the learned counsel for the respondents that the classification of the area as potential building site and an agricultural land by the Collector is too arbitrary. There appears to be no reason why only a small area of village Mohri Ghazan and village Jhawre should be treated to be a potential building site and the rest of the area as agricultural. It appears to us that some area of Chak Jhawre, village Lakhan, village Khatana could also have been treated as potential building site on the Collector's own reasoning since that area also appears to be near the Bakar, Mandi Bazar and other residential bungalows. Similar is our comment upon the compensation at the rate of Rs, 700 awarded to all Maira land in Block No, 3 or slightly higher value for other categories of land notwithstanding the proof of such higher rate in some villages on the basis of average of sales for 5 years or one year. These averages in case of most of villages is much higher. In Jhawre the average on the basis of five years' sales and one year sales both is several times more than the compensation award. No reliance can, therefore, be placed upon the award. At the samenme, as stated above, we are not satisfied with the way the learned Administrative Civil Judge has dealt with these cases in his judgment. He has not considered the evidence on the record and has treated the entire area acquired which consists of several thousands Kanals, as being a potential building site. It is also correct that he has not taken into consideration the claim made by some of the respondents in their respective petitions for reference of much lesser compensation. He has also failed ,to consider that in some of the statements the witnesses of the respondents have assessed the market value of land in some villages at less than Rs, 10,000 per Kan al.
20. We, however, find it difficult to appreciate evidence on the record and to draw any conclusion, therefore, in the absence of a site plan and Aks Shajra denoting all the Khasra Numbers as well as the distance location of the Bakar Mandi, Biscuit Factory, Poultry Farms, residential bungalows, etc. The question whether a particular Khasra Number could C be treated as building site on the basis of its nearness to the Abadi, Bazars of Factory, etc., cannot be decided unless Khasra Numbers and the Bazars, etc., are clearly marked on a site plan prepared on the scale. The parties have produced a number of documents in support of their plea that some property had been for a higher price or lower price, as the case of the parties may be, but it is not possible to give a decision on the basis of these documents unless the land so sold by different mutations, is marked on such a plan. It appears from the documents produced on behalf of the Government that the areas which are the subject-matter of these sales were sold for either agricultural purposes or they were sold for urban use. The value thereof was in some cases negligible. On the other hand the documentary evidence produced by the respondents establishes that some areas were sold for a very high consideration since they were presumably likely to be used as building site. But unless the location of the area so sold is marked out in the site plan it is not possible to draw any conclusion from the evidence.
21. The oral evidence is also of not much value This evidence does not throw any light about the Abadi surrounding the area in dispute. Some of the respondents have placed on record of the appeals two plans but these documents cannot be considered unless they are admitted in evidence. In our view the proper course to follow is to remand these cases to the District Judge, Rawalpindi for a fresh decision after allowing the parties to produce additional evidence.
22. Before passing an order of remand we may dispose of some other objections in certain appeals. R. F. A. No, 19 of 1972 has been filed against the order passed in Reference No, 81 of 1968. On going through the record of that reference we find that it has not been disposed of so far. Some proceedings in that case were taken even in the year 1973 although all these appeals pertain to the year 1972. The evidence of two witnesses was recorded on the 13th of July, 1973. The last order is dated 7th of September, 1973, by which the case was adjourned to the 8th of October, 1973 since the Presiding Officer was on leave. It appears that thereafter the record of the case was sent to this Court. Alongwith the R. F. A. Has been filed a short order, dated 24th of July, 1971 purporting to have been passed in Reference No, 81 of 1968, by which market value was fixed by the Court at a sum of Rs, 10,000 per kanal. No such order is on the record of this case nor such an order could be passed since the case as stated above was ever decided. R. F. A. No, 19 of 1972 is, therefore, dismissed as premature. The record of Reference No, 81 of 1972 is now transferred to the file of the learned District Judge, Rawalpindi to whom we propose to remit the case.
' There is a preliminary objection in R. F. A. No, 28 of 1972 about the bar of limitation. The order under appeal was passed on the 24th July, 1971. An application for certified copy of the order was submitted on the 13th November, 1971 and the copy was prepared and supplied on the same date.
Although by the time the application for copy was submitted the limitation for appeal had already expired, yet the appeal was filed on the 4th February, 1972. There is no application under section 5 of the Limitation Act, for condonation of delay. The learned counsel for the appellant, however, referred to Civil Miscellaneous No, 1130/C of 1972 which is on the record of R. F. A. 12 of 1972. This petition purports to have been submitted in R. F. A. No, 256 of 1972 ,Pakistan v. Raja Hukam Dad Khan and others. The learned counsel, however, argued that this appeal is the same which has been registered as R. F. A. No, 28 of 1972. This, however, does not appear to be the correct position since in this petition prayer is for condoning the delay in the addition of respondents Nos. 4 to 11.
We, therefore, agree with the objection taken by the learned counsel for the respondents and dismiss R. F. A. No, 28 of 1972 as barred by time.
23, There is a preliminary objection in F. R. A. No, 30 of 1972 also about the constitution of the appeal.
This appeal arises out of the judgment in Reference No, 3 of 1968. The objection is that Reference No, 3 of 1968 was submitted by 14 persons but the appeal has been filed only against Raja Hukam Dad Khan and other 13 persons have not been impleaded as party. This objection is correct since it appears from the copy of the order in Reference No, 3 of 1968, that it was filed by Raja Hukam Dad Khan and 13 others. The names of these 13 other persons are as follows (11 Mst. Sardar Begum wife of Hukam Dad Khan.
(2) Mst. Taj Mahal daughter of Hukam Dad Khan.
(3) Auragnzeb son of Feroze Khan.
(4) Muhammad Siddique.
(5) Muhammad Aslam.
(6) Muhammad Zubair.
(7) Muhammad Naseem.
(8) Mst. Mahboob Jan.
(9) Mst. Razia Jan.
(10) Mst. Irshad Begum.
(11) Mst. Sultan Begum
(12) Saeed Akhtar.
(13) Pir Badshah ' This appeal is, therefore, liable to be dismissed on the ground 01 being improperly constituted and it is accordingly dismissed.
24. A similar objection has been raised in R. F. A. No, 94 of 1972. It appears from the record of the trial Court that the petition under section 18 of the Land Acquisition Act was submitted by the legal repressentatives of Mst. Gui Jehan Begum deceased. The names of these legal representatives in the heading of the petition are given as Major Aslam Khan, Major Asghar Khan, Muhammad Asmat Khan and Asghar Khan sons of Major Sajjad Hussain. The appeal was, however, filed against Mst.
Gul Jehan Begum and Muhammad Asghar Khan. The other three brothers were impleaded on their own request by an order, dated the 13th June, 1975 passed on Civil Miscellaneous No, 3703/C of 1974 long after the expiry of the period of limitation.
25. Mr. S. M. Chaudhary, Advocate, who appeared for the respondents argued that the appeal is liable to be dismissed as having abated. We do not agree with this contention since Mst. Gul Jehan Begum deceased was not alive when the reference under section 18 was submitted. It was for that reason that the reference was filed by and on behalf of her four sons. These four sons were necessary party to the appeal but appeal had been filed against one only. The appeal was, therefore, improperly constituted.
26. The learned counsel for the appellant, however, contended that this objection is waived by the respondents who had been impleaded as a party in the appeal on their own petition Civil Miscellaneous No, 3703/C of 1974. We do not agree with this contention, since it is clear from paragraph 4 of the petition that four legal representatives of Mst. Gul Jehan Begum had reserved their right to raise an objection that the appeal was barred by time and they had submitted the application only to enable them to be present in Court and to urge this point, there is no waiver, acquiescence or estoppel in this case. The objection of the respondents prevails. We, therefore, dismiss R. F. A. No, 94 of 1972 also.
27. We allow all other appeals, i. e. R. F. A. Nos. 12/72, 13/72, 14/72, 15/72, 16/72, 17/72, 18/72, 19/72, 20/72, 21/72, 22/72, 23/12, 24/72, 25/72, 26/72, 27/72, 29/72, 31/72, 32/72, 33/72, 34/72, 35/72, 36/72, 37/72, 38/72, 39/72, 48/72, 49/72, 93/72, 95/72, 96/72, 97172,98/72, 99/72, 100/72, 101/72, 102/72, 103/72, 104/72, 105/72, 106/72, 107/72 108/72, 10)/72, 110/72, 111/72, 112/72, 113/72, 114/72, 115/72, 116/72, 117/72, 118/72, 119/72, 120/72, 121/72, 122/72, 123/72, 124/72 and 125/72 and remand these cases to the learned District Judge, Rawalpindi, who shall decide them afresh after giving full opportunity to the two parties to produce additional evidence, In case the parties do not take any step to produce Aks Shajra and the site plan prepared on the scale showing the Khasra Numbers as well as Abadis, Bazars, Factories, Poultry Farms, etc. The learned District Judge will ensure by summoning Court witnesses that these documents are placed on the record.
' We leave the parties to bear their own costs.