' FAIZ MUHAMMAD KHAN, J.--Government of Pakistan in the Ministry of Defence had planned to extend the Pakistan Military Academy, Kakul. For that purpose land was acquired by the Acquisition Collector, Abbottabad. A notification under section 4 of the Land Acquisition Act (hereinafter called the Act) was issued by the Collector of the District on the 14th June, 1981. Subsequently, some more area was added thereto and a Corrigendum for the purpose was issued by the Collector of the District on the 29th March, 1982.
2. Sardar Fakhar-e-Alam, respondent before us, was affected by the said acquisition proceedings.
His land measuring one Kanal 7 Marlas, represented by Khasra Nos. 44 and 45 (subsequently renumbered as 472/44 and 472/45), situated in Village Nawanshehr Shamali, was mentioned to be acquired in the first notification, dated the 14th June, 1981, but his other land measuring 4 Kanals one Marla, represented by Khasras Nos. 42 and 43 (subsequently renumbered as 472/42 and 472/43), situated in the same village, was subsequently added to the notification through the Corrigendum,issued on the 29th March, 1982.
3. The Acquisition Collector, after observing the formalities prescribed in the Act, announced his Award No. 6 on the 3rd October, 1982, whereby the compensation to be paid for all the acquired land of the kind of which the aforesaid land of Sardar Fakhar-e-Alam, respondent before us, was said to be, was assessed at the rate of Rs. 24,422/40 per Kanal. He, like other affectees, was also allowed 15% of the price as compulsory acquisition charges.
4. Sardar Fakhar-e-Alam was not satisfied with the rate per Kanal assessed by the Acquisition Collector as compensation to be paid to him for his land. He, therefore, filed before the Collector, Abbottabad an objection petition against the said award, which was forwarded to the Acquisition Judge for adjudication in accordance with law.
5. Before the Acquisition Judge, the petition filed by Sardar Fakhar-e-Alam was contested by the Acquisition Collector and the Government of Pakistan, on factual and legal pleas. The controversy between the parties is reflected from the following issues framed in the case:
(1) Whether objector/petitioner has got any cause of action?
(2) Whether objector/petitioner is estopped to bring the instant objection petition?
(3) Whether objection petition is within time?
(4) Whether less compensation vide Award No. 6 dated 3-10-1982, regarding 1 Kanal 8 Marlas of land in question which is already in possession of respondent No. 1 has been paid to the objector/ petitioner by the respondent and the said award is void regarding the rest of the land in question?
(5) Whether petitioner is entitled to recover compensation regarding the land in question @ Rs.
1,00,000 per Kanal alongwith 15% compulsory acquisition charges and interest as is prayed for?
(6) Relief.
6. The learned Acquisition Judge, after allowing the parties to produce such evidence as they wished to produce, by his Award, dated 21-4-1984, decided issue No. 1 in favour of the objector, issue No. 2 against the respondents and issue No. 3 in favour of the objector. On issues Nos. 4 and 5, which were discussed by him together, the finding of the learned Acquisition Judge was that the price of the objector's land which was acquired by Government could not be less than Rs.1,00,000 per Kanal, which was equal to the amount claimed by the objector in his petition. He, therefore, assessed the compensation amount awardable to the objector at the rate of Rs.1,00,000 per Kanal.
The objector was, in addition, also allowed the compulsory acquisition charges and the usual rate of interest provided in the law.
7. Government of Pakistan, being not happy with the award of the learned Acquisition Judge, have come to this Court in appeal, which has been filed through Military Estate Officer, Abbottabad.
8. Sardar Ghulam Mustafa, Advocate appeared on behalf of the appellant and Syed Abdus Salam Sarwar, Advocate appeared on behalf of the respondent. They were heard and the record of the case carefully gone through with their assistance.
9. The learned counsel for the appellant argued that the acquired land of the respondent was of 'Maira' kind and the Acquisition Collector had, therefore, rightly assessed compensation therefor on the basis of one yearly average which was worked out for the period preceding the date of notification issued under section 4 of the Act. His contention was that since huge area, consisting of various kinds of lands, was acquired from two villages, the Acquisition Collector, who made a single award in respect of the entire land acquired by Government, was right in excluding from consideration, while assessing the compensation, the fact that some scattered pieces of lands falling within the acquired area had been purchased at high price by a few persons who wanted to construct residential houses thereon. He contended that the report submitted by the Local Commissioner, wherein the price of the disputed land was assessed more than Rs.1,00,000 per Kanal, was based on conjectures as no positive evidence was led before him on the basis of which he could arrive at that conclusion. He also contended that even on the basis of different 'averages' brought by Patwari Halqa on the record the price of the disputed land was not equal to that assessed by the Local Commissioner and the learned Acquisition Judge. While so arguing, he referred on the record to the five-yearly average Exh. P.W. 2/D-1 according to which the price of this kind of land was Rs. 27,219 per Kenal the two-yearly average Exh. P.W. 2/D-2 according to which the price of this kind of land was Rs. 34,529 per Kenal the one-yearly average Exh. 2/D-3 according to which the price of this kind of land was Rs. 31,040 per Kenal and the one-yearly average Exh. P.W.
2/2 (which related to the period after the date of notification) according to which the price of this kind of land was Rs.36,480 per Kenai. He urged that neither the assessment of the price made by the Local Commissioner was correct nor the one allowed by the Acquisition Judge. While concluding, he submitted that the award made by the learned Acquisition Judge be set aside and the one made by the Acquisition Collector be restored.
10. The learned counsel for the respondent contended that in this case the material date for assessing the compensation to be paid for the land was 29-3-1982 when the corrigendum was issued by the Collector and not the date when the original notification under section 4 was issued by him, that Abbottabad being a Hill-Station where land available for construction purposes was not in abundance a willing purchaser to pay a high price for a building side was always available, that the disputed land was situated in Cantonment area and on the material date was surrounded by built-up property and in fact was meant to be used for construction purposes and not for cultivation purposes; that the local investigation made by the Local Commissioner and the site plan prepared by him clearly indicated that the disputed land was situated on road-crossing and being a corner plot had great potential value as it was not only capable of being converted into use for constructing houses thereon but could also be used for commercial purposes that in his statement before the Acquisition Judge the Local Commissioner stated (on cross-examination by the learned counsel for the appellant) that the disputed land could be brought into commercial use, and that the appellant led no evidence worth consideration before the Acquisition Judge in rebuttal of the Local Commissioner's report and the overwhelming reliable evidence brought by the respondent on record. The learned counsel contended that the material brought on record fully supported the conclusion reached by the Acquisition Judge in this case.
11. Before the Acquisition Judge respondents had produced Patwari Helga, Urban, Area Abbottabad Patwari Helga, Nawanshehr Shamali and three other witnesses, including his attorney. Two other witnesses, a local Advocate and an Income-tax Officer living in Jinnah Abad Colony, were also produced by the respondent before the Local Commissioner. As against this evidence the appellant had produced before the Acquisition Judge only one witness, Gul Bahadur Khan, S.D.O., M.E.S., Office Abbottabad, and none before the Local Commissioner. The Local Commissioner was examined as a Court witness, who testified to his report and its enclosures as correct. He was cross-examined by both the parties.
12. Before we proceed further to evaluate the evidence which was brought on record before the learned Acquisition Judge on the basis of which he determined the compensation to be paid to the respondent for his land, we would like to record our finding on the much debated question as to which would be the material date for determining the amount of compensation to be awarded for the land acquired under the Act in accordance with the measure laid down in the first clause to subsection (1) of section 23 of the Act. As already mentioned, two notifications were issued under section 4 of the Act by the Collector of the District, one on the 14th June, 1981 wherein many Khasra numbers, including Khasras Nos. 44 and 45 measuring 1 Kanal 7 Marlas belonging to the respondent, were mentioned which were likely to be acquired by Government for the public purpose, and the other (by way of corrigendum) on the 29th March, 1982 wherein the Khasra numbers already notified and the additional area likely to be needed, including the land measuring 4 Kanals 1 marla represented by Khasra Nos. 42 and 43 belonging to the respondent, were mentioned. This Corrigendum, which was a full-fledged notification issued under section 4 of the Act, is available at pages 18-19 of the record of the Acquisition Judge. The learned counsel for the appellant contended that the material date for the purpose of determining the compensation would be the 14th June, 1981 on which date the first notification was issued, but the learned counsel for the respondent, as already mentioned, argued that this date would be the 29th March, 1982 on which date the corrigendum was issued. We are inclined to accept the contention of the learned counsel for the respondent because what was expressed by the Collector of the District to be a Corrigendum was in fact a notification, complete by itself, issued under section 4 of the Act. It contained details of all the Khasra numbers, including those earlier notified, which were needed by Government to be acquired for a public purpose. It, being complete and self-contained, had, in fact, superseded the first notification issued on the 14th June, 1981. The material date for the purpose of determining the compensation to be awarded for the acquired land was, therefore, the 29th March, 1982.
13. It is a well-settled law that in cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act. In this case, therefore, it was necessary to find out as to what was the complexion and character of the disputed land on the material date. If on that date the land belonging to the respondent had acquired the complexion and character of building site, then it was to be treated as in use as a building site in awarding the compensation for its compulsory acquisition under the Act, irrespective of what the entry in the revenue record was with respect to it. The learned counsel for the appellant, basing his argument on the entries in the revenue record tried to pursuade us to accept that on the material date the land respecting which the matter has come before us for adjudication was a 'Maira' kind of land and for that reason compensation therefor was to be assessed on that basis. The learned counsel for the respondent, however, forcefully contended that even on that date, leaving aside the future potentiality, this land had acquired the complexion and character of a building site, to be used for residential as well as commercial purposes, and was, therefore, to be assessed as such. In this regard he invited our attention to the report submitted by the Local Commissioner, the statements of two respectable witnesses recorded by him at the spot and the statement of the attorney of the respondent who appeared before the Acquisition Judge and deposed to that effect, which all went unquestioned and unchallenged as no question in that regard was put to them in cross-examination nor any contrary suggestion made, nor was any cogent evidence led by the appellant in rebuttal during the proceedings before the learned Acquisition Judge.
14. We find substance in the arguments of the learned counsel for the respondent. In order to prove his claim before the Acquisition Judge the respondent produced before him as many as 5 witnesses, one of whom was his attorney. In his statement before the Acquisition Judge, the attorney (P.W. 5) of the respondent stated on Oath that the disputed land was a cornor plot around which Bungalows had been constructed and that this land had assumed the complexion and character of building site which could also be used for the construction of shops for commercial purposes. He also deposed to the fact that one party from Karachi was willing to pay, through Khawaja Abdur Rashid, Advocate, Rs.1,25,000 per Kanal to respondent who refused to accept the same. The said Khawaja Abdur Rashid, Advocate appeared as a witness before the Local Commissioner and testified to this fact with slight variation in the price. No question was put to the attorney of the respondent on these points by the appellant, nor was any contrary suggestion made to him in that respect, which would mean that the facts so stated by the attorney of the respondent before the learned Acquisition Judge were accepted by the appellant. This would clearly establish the fact the even before acquisition of the property in dispute by the Acquisition Collector there were available purchasers who were willing to purchase the disputed property for more than Rs.1,00,000 per Kanal and the respondent was then unwilling to part with it at that price.
For local investigation, at the request of the respondent, the learned Acquisition Judge had appointed a Local Commissioner, who visited the site after serving on the counsel for the parties a notice for the purpose. He submitted his report, alongwith the site plan prepared by him and other enclosures, to the learned Acquisition Judge. That report and the site plan prepared by him clearly indicated that the land acquired from the respondent had acquired the character and complexion of a building site earlier to acquisition and that it could be used both for commercial as well as residential purposes. The two witnesses who appeared before the Local. Commissioner and whose statements went unquestioned, because none had appeared before the Local Commissioner on behalf of the appellant to cross-examine them, testified to the fact that the land had acquired such character. They also put its price at more than Rs.1,00,000 per Kanal on which then were not questioned. Their assessm ent in this regard went unrebutted before the Local Commissioner, who based his conclusion on what he heard from them and what he saw on the spot. No evidence was led by the appellant before the Acquisition Judge in rebuttal of the Local Commissioner's report, which, therefore, merited acceptance. The solitary statement of an S.D.O., who appeared as a witness for the appellant was not sufficient to rebut the overwhelming evidence brought on the record by the respondent with respect to the complexion and character of the land at the time of its acquisition and with respect to the price which it could fetch in the open market on the material date. The evidence given by the Local Commissioner before the Acquisition Judge also favoured the respondent. We, are, therefore, of the view that on the material date the land acquired from the respondent had acquired the complexion and character of a building site and was to be treated as in use as such site on the material date and was to be assessed for the purpose of compensation on that basis. That being so, all the averages of the prices of the agricultural lands produced by Patwari Halqa before the Acquisition Judge and those relied upon by the Acquisition Collector, in so far as they related to the land acquired from the respondent, were irrelevant. What were near in point of fact were the one-yearly averages of the prices which the building sites and houses in the Urban area of Abbottabad could fetch on the material date. These have been mentioned in Exh.
P.W. 1/1 and Exh. P.W. 1/2, according to which the price per Kanal was more than what was claimed by the respondent and what was assessed by the learned Acquisition Judge.
15. For the aforesaid reasons, there is no merit in this appeal which is hereby dismissed with costs.