MIAN BURHANUDDIN KHAN, J.-- Leave was granted vide order of .This Court, dated 17-1-1984 on the ground that the learned High Court Judge, while rejecting the compensation assessed by the Additional District Judge, had fallen into the same error as that Court had in not basing its decision upon any acceptable evidence and that in any case the High Court could not, in view of the provision of section 25 (1) o the Land Acquisition Act, 1894 (hereinafter referred to as Act) allow compensation at a rate higher than that claimed.
2. Facts relevant to his appeal are that the land bearing survey Nos. 335, 336, 339 and 454 situated in Deh Jamshoro, Taluka Hyderabad measuring 18 Kanals and 39 Ghuntas owned by the respondent, was acquired by the Government for construction of new water lagoon for Hyderabad Water Supply Scheme, by Notification, dated 20-10-1979. The Land Acquisition authority, treating this land as 'A' category land, awarded compensation @ Rs.20,000 per acre on the basis of sales of similar lands in the area during the last five years with 15% on the above amount as compulsory acquisition charges.
3. The appellant received the compensation awarded by the Land Acquisition Officer under protest and requested for making a reference under section 18 of the Act to the civil Court, and, accordingly, the matter was referred to the Court of III Additional District Judge, Hyderabad. The learned Additional District Judge vide his judgment, dated 25-5-1981 awarded the compensation @ Rs. 2.50 per sq. Ft. i.e. Rs.1,08,900 per acre. Aggrieved from the said order the appellants filed the First Civil Appeal in the Sind High Court and a learned Single Judge, per impugned judgment, dated 19-6-1983, reduced the amount of compensation to Rs.70,000 per acre.
4. Learned counsel for the appellants contended that the learned Single Judge of the High Court has not proceeded on correct principles governing evaluation of compensation in respect of land compulsorily acquired; having held that the compensation awarded by the learned District Judge was not in keeping with the evidence on record and having rejected the evaluation made by the said Court, failed to appreciate that there was no evidence on record to justify his evaluation; that the sale of similar land made in the same area in the vicinity over a period of five years immediately before the acquisition date clearly indicate that average price prevailing in relation to the said sales was Rs. 27,109 per acre; that the learned Judge erred in allowing himself to be influenced by the fact that in the vicinity of the land in question, several housing societies were already in existence at the the when the notification under section 4 of the Act was issued but on record there is no such evidence that any housing societies are functioning near about. In fact the nearest housing society is Gulshan-e-Sajjad which is more than a mile away from the land in question; that the question of potentialities of agricultural land cannot be compared with the potentialities of the land used for construction of residential colonies. In this connection the learned counsel contended that he would like to point out that the agricultural land always changes hands and its potentialities are wholly to be judged in the sphere of agricultural potentialities. It was argued that the learned Judge erred in allowing himself to be influenced by referring to to.
Transactions of sale of land in the so-called vicinity of the land in question wherein the average price per acre in the year 1980 was Rs. 90,000 and, therefore, making the aforesaid transactions as a base the learned Judge reduced the price of the land in question by a sum of Rs. 20,000 per acre and fixed the compensation @ Rs. 70,000 per acre. The said transactions relied upon by the learned Judge were, therefore, not in relation to the land situated in the vicinity. In fact that land was quite far away from the land in question and intervening between those lands and the respondent's land is situated the water filtration plant; that the transac--tion in question No.2 relied upon by the learned Single Judge was by a Housing Society which was known and acknowledged to be transaction of speculative character undertaken by the property builders and developers.
Such transactions can never make a reasonable data for working out the market value of the land acquired. Lastly it was urged that the respondent cannot be awarded compensation exceeding a sum of Rs.60,000 per acre as he himself had claimed this sum before the Land Acquisition Officer vide his application, dated 5-6-1980 as provided by section 25(1) of the Act.
5. Examining the contentions raised by the learned counsel we would refer to the award given by the Assistant Commissioner/ Land Acquisition Officer, City Hyderabad, wherein it is mentioned that Notification was issued under section 4 of the Act in respect of the land by the A.D. C.(I) Hyderabad vide his No. HVA/2303 of 1979, dated 5-7-1979 which was published in the Government Gazette, dated 20-10-1979. Thereafter, Notification, under sections 6 and 17 of the Act, was also issued and published in the official Gazette, dated 2-5-1980. While determining the compensation the learned Land Acquisition Officer framed the following questions: (i)Whether land acquired be treated as Urban agricultural land; (ii)what would be the further utility of land in question; (i.e)potential value and compensation; and (iv)nature of the land.
Regarding the first question it was held by the Land Acquisition Officer that the land in question is situated within the limits of Hyderabad Municipal Corporation, and, therefore, it was urban land but subject to agricultural use. As regards the second question the learned L. A .O. Held that the land was suitable for the purpose of new water lagoons for the Hyderabad Water Supply Scheme and as such the future utility of the said land was considered appropriate for the project. As for the potential value and compensation he held that the land in question, in its present condition, has no appreciable potential value particularly the part of this land which is inside the Fasadiwah and near the River of which some portion is unlevelled and is Kallar land. As regards the compensation of the land, the averge of last three years comes to Rs.12,000 per acre and while average of sale during 1978 is about 22,500 per acre. In order to arrive at a correct market value of the land, included in the whole land acquired, the Land Acquisition Officer visited the area acquired and on the basis of his site inspection and revenue record, the whole land was shown in three categories.
The land of the respondent was placed in category 'A'. According to the L. A .O. This category included developed and cultivated lands outside the Fasadiwah i.e. Between the Fasadiwah and Recovery Beds of Filter Plant/Loop Bund. It was observed by the Land Acquisition Officer that the said lands were surrounded by Colhis Colony, Karan Khan, Shoro village and existing structure of the Filter Plant and Recovery Beds of Water Supply Scheme. The said Officer also found some housing schemes ahead to Filter Plant in this belt; that the agricultural produce of this land was easily transportable due to its proximity to National High Way, Jamshoro Road and in the past three years, lands to this portion were sold out at quite higher cost due to better comparative prospects.
As a result thereof the L.A.O. Held the market value of 'A' category land at Rs. 20,000 per acre and fixed the same amount in the Award. Against this the respondent sought reference under section 18 of the Act and the learned III Additional District Judge, in his judgment, dated 25-5-1981, enhanced the value of the land to Rs. 1,08,900 per acre on the ground that the deposition of the defence witnesses had established that the Land Acquisition Officer had assessed the market value of the land improperly and arbitrarily; that he had failed to issue notice or afford an opportunity to the said Khatedar to plead his case at the the of assessment; that the value of the land is to be assessed on the potentialities of the land as has been held in PLD 1968 Lah. 1360. He also referred to a case reported in 1980 C L,C 574 wherein it was held that: "sections 18 and 23-- while determining the compensation and fixing the market value of the land at the relevant the, its classification and nature is not to be taken into consideration for the award of compensation on the basis of market value merely by reference to actual use but also by reference of its future use as well."
Thus, the learned Additional District Judge enhanced the amount of land as aforesaid. Against his judgment an appeal was filed in the Sind High Court which reduced the amount of compensation to Rs.70,000 per acre vide judgment, dated 19-6-1983. Thereafter leave was granted by this Court vide order, dated 17-1-1984 on the ground that the learned Courts below have fixed the market value of the land in violation of the provisions of section 25 and S. 23(1)(1) of the Act, and no other ground was urged. Therefore, we would be dealing here with these points on which leave has been granted by this Court.
6. Section 25 of the Land Acquisition Act, 1894 reads as follows: 25 Rules as to amount of compensation--(1) When the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court, shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section 11.
(2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, tsie amount awarded by the Court shall in no case, exceed the amount awarded by the Collector.
(3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court, shall not be less than, and may exceed, the amount awarded by the Collector."
The section provides for three classes of cases. The first clause of the section refers to the case where the applicant has made a claim for compensation pursuant to a notice given under section
9. In that case, the amount awarded to him by the Court i.e. By the Judge to whom the reference is made, shall not exceed the amount so claimed and at the same the it shall not be less than the amount awarded by the Collector under section 11. The second clause provides for the case where the applicant has refused to make such a claim or has omitted, without sufficient reason, to make such a claim. In such a case, the amount awarded by the Court, shall in no case, exceed the amount awarded by the Collector. It follows, therefore, that if without any sufficient reason he has refused to take action before the Collector when the award is made, he cannot afterwards ask the Court, to which the matter may be referred, to award more than the Collector has already done.
The third case is under clause (3) and that relates to cases when the applicant has omitted for a sufficient reason to make such a claim. In such a case, the amount awarded to him by the Court, shall not be less than and may exceed the amount awarded by the Collector.
7. In the present case the appellants, in their first appeal, having not specifically raised the issue that the Court of reference or the Court of appeal could not have awarded compensation exceeding Rs.60,000 claimed by the respondent in his application for reference to a civil Court under section 18 of the Act, all what in the ground of appeal is mentioned reads as follows: "The learned lower Court erred illegally in ignoring the value of claim assessed by the respondent himself to the tune of Rs.60,000 (rupees sixty thousand only) per acre in response to the notice under section 9 of the Land Acquisition Act and erred in awarding the claim exorbitantly to the tune of rupees one lac, eight thousand per acre without applying his mind to determine the sufficiency of cause of enhancement."
When the respondent was examined in Court by the learned Additional District Judge, Hyderabad, no question was put to him in cross-examination as to whether he had received a notice under section 9 of the Act; nor it was put to him that in his application for reference under section 18 he had claimed. Rs. 60,000 only. The appellants, through their counsel Mr. Muhammad Ibrahim Soomro, examined Mir Hussain Head Clerk to A.C. City Hyderabad who stated that the plaintiff had submitted an application stating that he received compensation under protest. In the said application he did not mentioned any rate of land or any other fact. 'In cross-examination by Mr. Ghulam Rasool Qureshi, Advocate for the petitioner he answered: "It is correct that no notice was issued to the plaintiff prior to assessment. It is correct that there was sales of lands in vicinity at greater rates than demanded by the plaintiff. It is correct that nowhere in Hyderabad Municipal Limits any lands has been sold at price less than Rs. 3 or 4 per sq.
Ft."
This statement clinches the matter. Where it was established that notice under section 9 were not served upon the claimant and the notices were not produced in the Court, it was held that it was not possible to say that the requisite notices according to section 9 were issued. The provisions of section 25(2) could not be invoked. As the claimants have omitted for sufficient reasons, to make their claim, they are entitled to enhanced compensation. It was found that the claimant acted in good faith and there did not appear to be any negligence on their part. As the Courts below have found it appropriate to condone the default, it is not a matter on which the High Court could take a contrary view and set aside the decisions of the Court below in second appeal. The stringent provision of section 25(2) can only be applied after a notice, which is strictly in compliance with section 9, subsections (2) and (8) has been served upon the land-owners. (AIR 1973 Mys. 22) Thus.
The appeal fails on this ground.
As regards the market value, the learned Judge, in his judgment, has referred to the fact that the property is situated close to the housing societies which are fastly developing. Therefore, we do not consider that the award of compensation at Rs.70,000 per acre is excessive or exorbitant. Appeal dismissed with costs.