MUHAMMAD AKRAM, J.--This will dispose of the following 21 regular first appeals, 12 filed by the Multan Improvement Trust, Multan, and the nine appeals filed by the respective land--owners, all directed against the award dated the 26th of October 1966, made by the Senior Civil Judge, Multan, in respect of the compensation assessed for the lands acquired by the Trust:- R. F. A. 32-67, 33-67, 36-67, 14-67, 37-67, 15-67, 43-67, 16-67, 38-67, 17-67, 35-67, 18-67, 40-67, 19-67, 41-67, 29-67, 42-67, 30-67, 39-67, 31-67 and 34-67.
2. The Multan Improvement Trust framed a Development Scheme under sections 24 and 25 read with section 28 of the Punjab Town Improvement Act, 1922, for the purposes of providing housing accommodation for middle class people. In this connection the usual notices under section 36 of the Act were published in the newspapers and the Government Gazette during December 1951- January 1952. In course of time the scheme was sanctioned by the Government under sections 41 and 42 of the Act and was notified in the Gazette Notifica--tion No. 1522-53/CNT, dated the 25th of May 1953.
3. This scheme was named as the "Development Scheme for the Middle Class Colony", popularly known as Shamshabad Colony situated on Multan-Khanewal Road, Multan. It is comprised of a total area of 83 acres 7 ka.Nals. Out of this an area of 57 acres 5 kanals and 4 marlas was evacuee property and with the approval of the Custodian of Evacuee Property, its market value was fixed at the rate of Rs. 5,120 per acre on the basis of five yearly average price of the sales in the estate. Out of the acquired land an area measuring 20 acres 6 kanals 1:0 marlas is situated in Taraf Mubarak Awal and the remaining 63 acres 1 kanal and 17 marlas in Taraf Mubarak Doem, Tehsil and District Multan. But it may be mentioned here that there is no separate Hadbast for the two estates forming one Mauza only known as Taraf Mubarak, Tehsil and District Multan according to the revenue records.
4. The learned Land Acquisition Collector, Multan, by means of his award dated the 29th of May 1961, assessed the price for the acquired land at a uniform rate of Rs. 5,120 per acre. He observed that the land in dispute comprised in the scheme is far removed from the walled city although it is situated in the vicinity of a few Improvement Schemes that have recently been set up. According to him the crucial date for the determination of the market value was 10th of October 1951, when this scheme was originally taken up. He found that the entire land comprised in the scheme is homogenous and forms one compact block and that it was neither desirable nor legal to employ different yardsticks for the acquired land situated in Taraf Mubarak Awal and Taraf Mubarak Doem and in his opinion the situation, nature, quantity and other attending circumstances were all similar. On the basis of quinquennial statements of sales separately prepared by the Patwari in respect of these two Tarafs, the learned Land Acquisition Collector observed that the average price per acre in Taraf Mubarak Awal was Rs. 11,150-13-4 and in Taraf Mubarak Doem Rs. 5,120 per acre. He generally observed in his award that Taraf Mubarak Awal is a much better situated area on account of its close vicinity to the Town of Multan and the area in dispute was situated on the farthest extremity more akin to the adjoining Taraf Mubarak Doem away from the city. In his opinion in urban and suburban areas the prices of the adjoining lands have to be considered rather than those in the entire estate. In conclusion, therefore, in applying a uniform scale for the whole of the acquired land, he assessed its market value at Rs. 5,120 per acre on the basis of the average price prevailing in respect of the lands situated in Taraf Mubarak Doem.
5. Some of the land-owners objected against the award and filed 13 separate applications for reference under section 18 of the Land Acquisition Act. In due course these were referred to the Senior Civil Judge, Multan, for his award in the matter. With the agreement of the parties, the proceedings in all these cases were consolidated and the evidence was recorded together in the main case of Sh. Manzoor Hussain. On the 13th of February 1963, the learned Senior Civil Judge, Lahore, framed the following issues common to all the cases arising out of the pleadings of the parties:--
(1) Have the petitioners accepted the award: if so, what is the effect?
(2) Is the reference not according to laws?
(3) Whether the objections have not been filed in time?
(4) What is the market price of the property acquired by the Improvement Trust?
(5) Relief.
6. In the course of the proceedings, on the 9 of December 1963, the learned Administrative Civil Judge, Multan appointed Mr. S. M. Ahsan, Advocate, as a Local Commissioner for ascertaining the market value of the acquired land after enquiry and spot inspection. At the conclusion of his enquiry, the learned Local Commissioner submitted his report to the trial Court on the 6th of October 1964. In his report he observed that both the villages, Taraf Mubarak Awal and Taraf Mubarak Doem were contiguous and quite adjacent to Multan City. The land acquired by the Trust was a compact block and the mere fact that the land under acquisition forms part of two different Tarafs was immaterial and did not make any difference for all practical purposes. After spot inspection he observed that the quality of the land situated in both these Tarafs was good and its vicinity to the town and all other attending circumstances were quite similar. In his opinion, therefore, the market value of the whole of the land acquired by the Improvement Trust in the two villages must be assessed at the rate of Rs. 11,150-13-4 per acre on the basis of the quinquennial statement of the average price for the lands situated in Taraf Mubarak Awal.th
7. On receipt of this report from the Local Commissioner, the Court below invited objections against it from the parties and also gave an opportunity to them for their evidence. Eventually the learned Senior Civil Judge, by a single judgment delivered on the 26th of October 1966, disposed of all the 13 references before him together. He observed that the land--owners have failed to establish that the land in dispute was situated within the municipal limits of Multan at the time when these notifications were issued in the year 1951-52 or that this was urban property at the time. In adverting to the difference of opinion between the Land Acquisition Collector and the Local Commissioner, he observed that both were not correct in adopting the two extreme views formed by them in assessing the market value of the land. In his opinion the lands in Taraf Mubarak Awal and Taraf Mubarak Doem were situated close to each other and they might as well be of the same quality. But nevertheless each village has its own prevailing price. The average price in Taraf Mubarak Doem was Rs. 5,120 only but in Taraf Mubarak Awal it was Rs. 11,150-13-4 per acre. In these circumstances, in his opinion, the average price for the land should be calculated by adopting the mean value between these two extremes. He, therefore, determined the market value for the land in dispute at Rs. 8,135 per acre under issue No. 4. At the hearing before him the Trust did not press and gave up the remaining issues Nos. 1 to 3.
8. This award has given rise to the above 21 appeals in this Court. We heard the learned counsel for the parties in all these appeals at great length and they can best be disposed of together by this judgment as common questions of law and facts were raised before us. The entire land in dispute in these appeals before us is situated in Taraf Mubarak Doem. It was, therefore, asserted on behalf of the Improvement Trust that there was no justification for the learned Senior Civil Judge, Multan, to have deviated from the award of compensation made by the Collector at Rs. 5,120 per acre on the basis of the average market value of the land prevailing .In this Taraf and enhance the compensation awarded at the rate of Rs. 8,135 per acre. On the other hand the land-owners in their cross-appeals before us have claimed the compensation -due to them at the rate of Rs. 80,000 per acre in respect of their acquired lands.
9. In this case the notices under section 36 of the Punjab Town Improvement Act, 1922 were published fn newspapers and the Punjab Government Gazette during December 1951 to January 1952, and, therefore, in accordance with clause 1 of the Schedule to the Town Improvement Act, 1922, the market value of the land has got to be determined with reference to this date. But we find that in this respect, strictly speaking, the learned Land Acquisition Collector was A not justified in observing in his award that the crucial date for determination of the price was the 10th of October 1951, when this scheme was originally taken up.
10. Most of the evidence on the record of the Court below in this case was adduced by Sh. Manzoor Hussain, appellant, and the rest of the land-owners did not lead any independent evidence. He examined in all 29 witnesses and produced a large number of documents before the Local Commissioner appointed by the lower Court. But it was rightly observed by the learned Local Commissioner in his report that most of this evidence was either irrelevant or unnecessary. We shall, therefore, confine our discussion only to the relevant evidence necessary for ascertaining the market value of the land in dispute
11. At the outset it must be stated that in his judgment under appeal the learned Senior Civil Judge was of the opinion that it was not proved before him that the land in dispute was situated within the municipal limits of Multan during 1951-52 and was urban property assessed to tax. But these observations are on the face of it incorrect and patently erroneous. In this respect even the learned Local Commissioner too was not quite sure and had laboured under a mistake. He was examined in Court by the land-owners as a witness (P. W. 3) and deposed that he could not say as to whether the land in dispute was situated within the municipal limits and he did not think it necessary to mention this circumstance in his report. He, however, hastened to add that some of the documents produced before him showed that some parts of the acquired land were situated within the municipal limits. There is ample evidence on the record to warrant the conclusion that actually the land in dispute was situated within the municipal limits.
12. In this connection before the Local Commissioner C. W. 19 Muhammad Anwar Shah produced the original plans of tile municipal limits of Multan in the years 1955 and 1962 and their true copies are Exhs. LAC/12 and LAC/13 respectively. According to LAC/13, the plan for the year 1962 the whole of the Shamshabad Colony in question is shown to be situated within the municipal limits.
Comparing these two plans together it is evident that this colony was situated within the municipal limits even during the year 1955. There is no suggestion that these municipal limits were at any time extended after 1951-52. The land in dispute belonging to Sh. Manzoor Hussain Qureshi is situated on Chah Perrey Shah Wala. C. A. W. No. 19 Saif-ud-Din Patwari of the estate of Taraf Mobarak, on reference to the jamabandi for the year 1950-51. Deposed that the land comprised in Khata No. 1014 corresponding to the old Khata No. 956 is situated on Chah Perrey Shah Wala and was within the limits of the Municipal Committee. Exh. LAC-43 is the jamabandi for the year 1945- 46, relating to the acquired land comprised in Khata No. 956, on Chah Perrey Shah Wala belonging to Sh. Manzoor Hussain, shown to be situated within the municipal limits. Similarly according to copy of the jamabandi for the year 1955-56 (Exh. LAC 42) the land comprised in Khata No. 1014 on Chah Perrey Shah Wala is within the municipal limits. The proceedings taken on a number of mutations (Exhs. LAC/55 to LAC/67) also go to establish that the land comprised in this Khata relating to Chah Perrey Shah Wala, was situated within the municipal limits Exh. LAC/IT is a receipt issued by the municipal committee for the payment of the house tax for the year 1950-51 by Manzoor Hussain Shah, appellant, in respect of his land comprised in Khewat No. 956J situated on Chah Perrey Shah Wala. This was proved by C. W. 15, Abdul Haleem Khan, Ahlmad, Municipal Committee, Multan. Moreover C. W. 17, Shah Muhammad, a retired Patwari of the Nazool Department has proved the plans Exhs. LAC/18 and LAC/19 sanctioned by the Municipal Committee in the year 1947 for buildings on the plots of land situated on Chah Perrey Shah Wala. Exh. LAC/20 is another sanctioned plan to the same effect. CAW 28, Manzoor Hussain appellant in his statement as a witness deposed that the area under acquisition was situated within municipal limits and was assessed to house tax. There is no evidence-- in rebuttal produced by the Improvement Trust in this respect. It is, therefore firmly established that the whole of this land acquired for the purposes of Shamshabad Colony was situated within the municipal limits. A fortiori it can be legitimately presumed that this was also assessed to house tax levied within the municipal limits of Multan.
13. This land is situated on the main highway from Lahore to Quetta popularly known as the L. M. Q.
Road. P. W. 3, Khan Sadiq Muhammad Ahsan, Advocate, the Local Commis--sioner, appointed by the Court below, deposed that it is situated near to the City of Multan. In his cross-examination he stated that Shamshabad Colony is situated on one side of L. M. Q. Road and Officers' Colony and Lawyers' Colony are situated on the other side of the road. He, however,, elaborated that the lands comprised in the Officers' Colony and the Lawyers' Colony were superior as compared to the one under Shamshabad Colony. After spot inspection the learned Local Commissioner observed in his report that the quality of the lands situated in Taraf Mubarak Awal and Tarag Mubarak Doem was good and their vicinity to the town and all other attending circumstances were similar. According to the observations made by the learned Land Acquisition Collector in his award the land comprised in this Scheme is far removed from the walled City although it is situated in the; vicinity of a few improvement schemes which were recently introduced. In his opinion, Taraf Mubarak Awal is much better situated area on account of its close vicinity to the town but the area in dispute was situated on the farthest extremity of the Taraf more akin to the adjoining Taraf Doem away from the City. Exh. D. 1 is a copy of awara made by the Collector for the acquisition of approximately 53.11.
Acres of land situated in the estate of Taraf Mubarak Doem. Tehsil and District Multan on the 19th of January 1952, for the development Scheme known as Gazetted Officers Colony (Babaristan) framed by the Multan Improvement Trust under section 24/25/28 of the Punjab Improvement Act.
According to this award the area in the revenue estate known as Taraf Mubarak Doem vi as so situated that a part of it is inhabited by the urban proprietors, while the rest was a barren track forming the rural area far away from the City. It, however, appears from the award that the Courts, Commissioner's office and some other Government Offices are situated in this estate. Exh. D. 2 is a copy of another award with respect to an area measuring 57 acres 7 kanals 6 marlas situated in Taraf Mubarak Doem, acquired by the Improvement Trust in April 1964, for the extension of the Officers' Colony. Exh. D. 3 is a copy of the award with respect to the land measuring about 6.219 acres situated in Taraf Mubarak Awal acquired on the 1st of April 1957, for the purposes of the Housing Scheme known as Lawyers' Colony framed by the Multan Improvement Trust. According to the statement of the Local Commissioner these Colonies are situated opposite to Shamshabad Colony of the other side of the L. M. Q. Road. A fair idea about the surroundings and the locality in which this land is situated can also be gathered from the two plans (Exh. LAC/ l2 and LAC/13). It is situated outside the old walled city but within the outskirts and suburbs of a fast developing and expanding of Multan. It can, therefore, be conclude that at the relevant time the pressure on the lands in question in thi- locality for development for building purposes was quite considerable.
14. It shall be worthwhile now to critically examine some of the instances of sales brought on the record by the land-owners with a view to determine the market value of the land in dispute. On the 17th of January 1951, Malik Allah Wasaya and another sold a plot of land comprised in Khasra No. 4585, situated within the municipal limits, in the estate of Taraf Mubarak, to one Haji Muhammad Ramzan and others for Rs. 3,500 by means of a registered deed (Exb. LAC/4). Similarly on the 16th of February 1951, Allah Wassaya and others sold another plot of land measuring 1 kanal, comprised in Khasra No. 4585 situated within the municipal limits of Multan, in the estate of Taraf Mubarak, to Haji Muhammad Ramzan and others for Rs. 3,500 by means of another registered deed (Exh.
LCA/7). Also, Malik Allah Wasaya and others sold Ihata with the land underneath measuring 3 marfas 7 sq. Feet, situated in Ward No. 10-Muslim Basti Kasaban Lahori Gate to Abdur Rehman and another for Rs. 5,000 on the 18th of February 1951, by a registered deed (Exh. LAC/6). On the 17th of February 1956, Allah Wassaya and another purchased a house along with the land underneath measuring 15 marlas comprised in Khasra No. 4545/1 situated in the estate of Taraf Mubarak Awai for Rs. 25,000 (Exh. LCA/83). The said Allah Wasaya appeared as a witness (C. A. W. 29) before the Local Commis--sioner to depose to these sales. According to him the area covered by these sales is the same as the one in dispute acquired by the Trust. It lies in the City area and is residential. In his opinion the price of the land in dispute at the time of its --acquisition was Rs. 3,500 per kanal.
But according to C. A. W. 2,. Ahmad Din, who is a marginal witness of the sale deed (Exh. LCA/4) the land covered by the sale was situated near Lahori Gate at a great distance from the Shamshabad Colony. He, however, volunteered to state that it was situated near the Shamshabad Scheme. At any rate, two of these instances (LAC 6 and LAC 83) relate to the sale of Ihata and a house with the lands underneath, and are not helpful is ascertaining the market value of the land alone. There is no reliable and trustworthy evidence before us for comparing the relative merits and demerits of the lands comprised in these instances with the land in dispute, In another transaction, Haji Malik Hakim Qutab-ud-Din sold 31 marlas of land comprised in Khasra No. 10295/9854 situated in the estate of Taraf MubarA Awal to Mian Muhammad Nazir for Rs.2,988 on the 24th of March 1958, by a registered deed (Exh. LCA/1). He, likewise, sold another plot of land measuring 7 marlas 8 -- sqr.
Yards comprised in Khasra No. 8518/4531 situated in the estate of Taraf Mubarak Awal for Rs. 7,000 on the 21st of June 1962 (Exh. LCA/2). By means of yet another sale deed he sold a third plot of land measuring 10 marlas comprised in Khasra No. 10295/9854 for Rs. 8,000 on the 11th of July 1960 (Exh.
LCA/3). C. A. W. 1, Hakim Qutab-ud-Din, the vendor, appeared as a witness to depose that he has sold those plots for residential purposes. But his evidence is not at all helpful in this case for a comparative study in ascertaining market value of the land in dispute. Moreover, these sales relate to a period long after the crucial date in this case. Khan Sadiq Muhammad Khan, Advocate, the learned Local Commissioner appointed by the Court below, purchased a plot of land measuring 6 marlas comprised in Khasra No. 10565/ 13005/2 situated in Taraf Mubarak Awal, within the municipal limits, for Rs. 2,152, on the 8th of August 1960 (Exh. P. 19) and the mutation for it is Exh. P. 21.
He deposed that the land purchased by him was very excellent. Even otherwise we cannot safely rely on this instance in ascertaining the market value of the land prevailing in the year 1951-52. All this evidence is not very helpful in assessing the market value of the land in dispute prevailing during 1951-52.
14. But we find that there are a number of attested mutations on the record relevant for the purposes of this enquiry before us. These are Exhs. LAC/55 to LAC/67 relating to the sales of various plots of land comprised in Khasra No. 8580, Khata No. 956 old, corresponding to Kbata No. 1160 new, situated on Chah Perrey Shah Wala in the estate Taraf Mubarak, mostly sold by Sh. Manzoor Hussain, appellant, to the different purchasers from 17-I-1947 to 28-12-1950 in the form of small plots. The details about all these transactions can be found in the schedule separately attached with and forming a part of this judgment for the sake of convenience.
15. The three plots covered by mutations Exhs. LAC 56, LAC 57 and LAC 58 were sold during January 1947, at the ate of Rs. 29-11-0, Rs. 37-8-0 and Rs. 12-8-0 per marla respective--ly. On the 27th of March 1947, another plot of land was sold as is evident by mutation Exh. LAC 55 at Rs. 19-8-0 per marla. In September 1948, in all seven different plots of land were sold by means of mutations Exh.
LAC 59 to LAC 65 at the rates ranging from Rs. 22-6-0 per marla to Rs. 38-12-0 marla. The Mutation Exh. LAC 65 shows that another plot was sold at the rate of Rs. 70 per marla on the 14th of June 1949.
On the 21st of November 1949, two other plots of land were sold (as per mutations Exhs. LAC 65 and 67) at the rate of Rs. 43-7-0 and Rs. 58-5-0 per marla respectively. Last of ail on the 28th of December 1950, one Abdullah sold a plot measuring seven marlas to Karim Bakhsh for Rs. 5,000 (mutation Exh. LAC 50) at a fabulous price of Rs. 714-4-0 per marla. In fact this land was originally purchased by the vendor from Manzoor Hussain Shah appellant (vide mutation Exh. LAC 57) on the 20th of January 1947 at the rate of Rs. 37-8-0 per marla only. In this locality there has been an understandable rise in the price from Rs. 12-8-0 per marla at the minimum in the year 1947 to Rs. 70 per marla at the maximum in 1949. But there is no explanation for the sudden jump in the price to Rs. 714-4-0 per marla recorded on the 28th of December 1950, in mutation Exh. LAC 50. It is not safe to rely on this sole transaction which appears to be out of ordinary, altogether unusual and mot easy to explain. Excluding this one from consideration, the overall average sale price of the plots of lands in this locality on the basis of the remaining transactions comes to Rs. 53-7-0 per marla. The average price of the four plots sold during 1947 comes to Rs. 23-5-0 per marla. It was Rs. 29 per marla during 1948 and rose up to Rs. 57 per marla in 1949. All along there was a clear tendency discernable for a rapid increase in the prices of the plots of land for building purposes in this locality. All these instances of sales are directly relevant and greatly helpful in ascertaining the market value of the acquired land. All these plots sold by the different mutations are situated in the same locality and in general they compare favourably with the land in question. Some of these sales are also proximate in point of time.
15-A. However, in arriving at any conclusion due regard must be had to the understandable rise in the prices of the plots of land in this locality during the two years from 1949 to December 1951. In this connection in our opinion it shall be reasonable to allow for a 30 to 40 percent rise in the prices of plots of land in this locality during this period. At the same time it must be borne in mind that the aforementioned instances relate to sales of developed plots of land, and their prices ate for the net area sold away after leaving the roads and open spaces etc. There is no hard and fast rule for the allowance made on this account. Each case must depend on its own facts. In this connection in Bombay Improvement Trust v. Mervangi Monekji Mistry (AIR 1926 Bom. 420) it was observed that the deduction might vary between 33 to 50 percent of the gross area of the land involved. Taking all these factors into consideration in our opinion the market value of the land in dispute on the material date should be assessed atRs. 55 per marla or Rs. 8,800 per acre in respect of the entire gross area of the acquired land in dispute.
16. These sales of a number of plots of land in this locality during a period of about four years from January 1947 to December 1950, sufficiently indicate that they were sold for building purposes.
Already there was a considerable pressure and demand on the land for the purpose. During 1947- 48 the Municipal Committee, Multan, sanctioned the building plans Exhs. LAC 18, LAC 19 and LAC 20 for some of the plots of land situated on Chah Perrey Shah Wala according to the testimony of C. A.
W. 17 Shah Muhammad, retired Patwari, Nazool Department, discussed above. The land in dispute was situated in the urban area of Multan in the midst of a fast developing locality. It had already been developed and acquired the character of a full-fledged building site by the time of the acquisition in December 1951-January 1952. It must, be treated as actual, rather than merely a potential, building site on the date of the notification for the purposes of' its valuation.
17. The land-owners have produced summaries of the year-wise mutations of sales of land sanctioned in the urban area in Taraf Mobarak Awal and Doem from 1947 to 1961 (Exhs. P. 1 to P. 14).
According to these statements the prices of land in this estate were ranging from Rs. 70,000 to-- Rs. 1,00,000 per acre during this period. In the year 1947 (Exh. P. 1) in all land measuring 7 kanals was sold for Rs. 69,797 according to the different mutations. According to P. 4 during 1950 the average price per marla was about Rs. 70,000 per acre. The approximate average price during 1951. (Exh. P.
5) came to Rs. 1,04,000 per acre. But there is hardly any evidence brought on this record necessary for a critical comparison of the lands covered by these mutations with the acquired land and it is not possible to examine and appreciate their relevant merits and demerits. These averages based on the sale of all and sundry kinds of land differently situated do not and cannot furnish a satisfactory criterion and are least helpful as a guide for the determination of the prevailing market value for the acquired land situated in a particular locality with its own advantages and disadvantages. These mutations picked up at random without drawing any parallel between them and without due regard to the situation and locality in which the land i9 situated are remotely relevant for determining the prices for this land in question.
18. Similarly the land-owners have also produced a statement (Exh. LAC 22) showing that on the basis of the sales for the five years from 1947-51 the average sale price was worked out to be Rs.
641.1 per marla in the urban area of Taraf Mobarak Doem. LAC 23 is a similar statement about the average price of Rs. 747-47 per marla prevailing on the basis of the sales of the years 1952 to 1956.
Also on the basis of the sales during 1957 --61 in this estate the average price at Rs. 1,000 per marls has been worked out vide Exh. LAC 24. These statements were prepared by C. A. W. 20 Malik Sher Muhammad Patwari of the Estate of Taraf Mobarak Awal in respect of all and sundry kinds of lands, differently situated and are least helpful in the light of our above discussion.
19. The best method for determination of the market value is to find out what a willing purchaser is prepared to pay for the land to a willing seller. In this connection in the Land Acquisition Collector, Rawalpindi v. Lieut.-General Wajid Ali Khan Burki (PLD 1960 Lah. 469) the Court observed as under:- "Instances of sale of lands in the vicinity are a good guide for arriving at the market value of the land which has been compulsorily acquired, but before the prices mentioned as having been fixed for sales of land in the vicinity are accepted as a helpful piece of evidence, it should be established not only that the sales took place near about the time at which the land was acquired but also that the sales related to the property so very much similar to the property that has been acquired as to make it almost certain that the price paid for the property cited as an instance would have been paid for the property which has been compulsorily acquired if a willing purchaser were buying it from a willing seller."
The Court deprecated the practice in vogue adopted generally by the revenue officers in ascertaining the market value on the basis of average price of sales in the estate. In this connection the Court further observed:- "This method of considering all the sales in the revenue estate is generally adopted by the Land Acquisition Collectors for arriving at the market-value of the land which is acquired, but to my mind it is not a satisfactory method, because a revenue estate must be comprised of big area and until and unless it is proved that the land sold was extremely similar to the land compulsorily acquired the price fixed for the land sold cannot be a safe guide."
The best evidence to prove what a willing purchaser would pay for the land under acquisition would be the evidence of genuine sales effected about the time of the notification for acquisition either in respect of the same land or lands precisely parallel in all its circumstances to the acquired land. The evidence of bona fide transactions of the sales of the same or similar lands in the vicinity having similar facilities are most helpful and should be taken into consideration.
19-A. As already discussed above in this case the Land Acquisition Collector fixed the market value of the acquired land at Rs. 5,120 per acre in his award dated the 29th of May 1961. He based his findings in this connection entirely on the quinquennial average price of the sale transactions sanctioned in Taraf Mobarak Doem. On the other hand the Local Commissioner appointed by the Court below based his report on the five yearly average price of the sale transaction attested in Taraf Mubarak Awal and assessed the market value of acquired land accordingly at Rs. 11,150-13-4 per acre. But the learned Senior Civil Judge thought it advisable to take the mean of these two average prices and fixed the market value of the acquired land at Rs. 8,135 per acre in his judgment under appeal. But all these estimates are based on the average price of lands sold in these estates without due regard to the respective merits and demerits of the land in each case and without drawing any comparison with the acquired land. For the reasons already discussed by us in the preceding C paras. Of this judgment. Such an estimate of the prices cannot furnish a safe guide and is least helpful in determining the market value of the acquired land prevailing on the material date.
20. Exhibit P. 15 is a copy of the resolution No. 24 dated the 15th of June 1969, passed by the Improvement Trust, Multan, showing that after acquisition the plots in Shamshabad Colony were sold by the Trust at the rate of Rs. 13 per square yard. Similarly according to a letter dated the 11th of May 1963, from the Chairman, Multan Trust addressed to Pir Manzoor Hussain Shah, appellant, the Trust accepted his last bid of Rs. 15 per square yard for plot No. 109 in Shamshabad Colony, Multan put to auction. By means of another letter dated the 23rd of June 1961 (LAC 29) from the Secretary, Multan Improvement Trust to the Manager, Multan Central Co-operative Bank Ltd., Multan, the Trust recommended the sale of the Nazool land comprised in Khasra No. 299 situated in Porana Baraf Khana, Multan at Rs. 50 per square yard. But these transactions represented the potential value of the plots of land equipped with the usual amenities and disposed of after the Trust has incurred huge expenditure on their development and lay out. In our opinion this data is not helpful in assessing the market value of the land in dispute acquired under the Punjab Town Improvement Act. Moreover there is nothing on this record to compare these plots with the acquired land and draw any parallel between them.
21. Under the general law, in a case of compulsory acquisition, the endeavour always is to determine "compensation" for the acquired land. It is a "quid pro quo" and an equivalent in terms of money for the land with a view to fully reimburse and remedy the loss for the expropriation of the acquired land. The measure for the award of this compensation is laid down in section 23 of the Land Acquisition Act, 1894. In this connection subsection (1), firstly, of this section lays down that in determining the amount of "compensation" to be awarded for the land acquired under the Act the Controller shall take into consideration the "market value" of the land on the relevant date. In Municipal Council of Colombo v. Kuna Mana Nawanna Sutra Letchiman Chettiar (PLD1947PC40) their Lordships of the Privy Council observed that the market value is the price which a willing vendor might be expected to obtain for his land in the open market from a willing purchaser. This was recognised as a time-honoured test by the Privy Council in another case in The Minister v.
Christopher Bowes Thistlethwayte and another (PLD1947PC40). In this connection the Court further observed that it must not be forgotten that it is the value of the land to the owner that has to be ascertained and that the willing seller and purchaser is merely a useful and conventional method of arriving at a basic figure.
22. In this case the land in question was acquired under the Punjab Town Improvement Act IV of 1922 for the purposes of the Multan Improvement Trust, Multan. According to section 59 read with the Schedule to the Act certain modifications were made fn the Land Acquisition Act, 1894 in its application E to and for the purpose of acquiring land for the Trust. A significant change was effected in section 23 of the Land Acquisition Act and by virtue of Clause 10(3) of the Schedule to the Punjab Town Improvement Act, 1922 the following was, added at its end:- "The market value of the land shall be the market value according to the use to which the land was put at the date with reference to which the market value is to be determined under this clause."
An obvious effect of this amendment is that in determining the market value of the land acquired for the Trust it shall have to be ascertained according to the use to which the land was put. In other words future potentialities or possibilities. For a more adventitious use of the land in future must be ignored in arriving at the market value of the land. In inter--preting a similar provision in section 23, subsection (PLD 1955PC58), Clause 1 of the Land Acquisition Act (as amended), a Full Bench of-- the Allahabad High Court in Secretary of State v. Makhan Das (AIR 1928 All. 147=I L R 50 All. 470)-- observed that the market value of the land must be calculated exclusively according to the use in which the land was being put on the material date and where on such date the acquired land was not put to any use its market value could be nil. This case was followed with approval by a Division Bench of that Court in Debi Din v. Secretary of State for India and' others (AIR 1942 All. 186).
23. But these remarks by the Full Bench were disapproved by their Lordships of the Privy Council in Babu Kailash Chandra .Lain v. Secretary of State (AIR 1946 P C 132). Under the identical provisions of section 23(3) (a) of the Land Acquisition Act, 1894 as amended, by the United Provinces Town Improvement Act VIII of 1919, the Privy Council observed as under:- "It would appear that, in the view of the Full Bench in 50 All. 470 neither a plot of land used by its owner as a garden on the relevant date nor a plot of agricultural land lying fallow at the relevant date, is being put to any `use' within the meanings of section 23, because the owner is deriving no profit therefrom; consequently, in the view of the Full Bench, the owner is not entitled to any compensation on its compulsory acquisition. 'Their Lordships are unable to assent to this view. On the true construction of section 23, the former plot ought to be valued as a garden and the latter plot ought to be valued as Agricultural land. The effect of section 23(3)(a) of the Act of 1894 as so amended is that the possibility of the garden or agricultural plot being used (e.g.) for building purposes in the future must be dis--regarded. It is significant that sub-clause (b) of that subsection make provision for the case of the owner staving taken active steps and incurred expenditure to secure a more profitable use of the land. In such a case the owner may be paid `further compensation based on his actual loss'. Apart from such a case, only the present use of the land can be considered for the purposes of arriving at the market value."
In the case before the Privy Council there were four different pieces of the acquired land and buildings for which the market value was separately assessed by the Land Acquisition Officer. They were comprised of (1) the garden of House No. 8, Mohallah Chah, Allahabad; (2) 504 square yards of parti land with enclosure well known as No. 32 Mohalla Chah-Chard, Allahabad; (3) land with a long shed on one side of it known as No. 13, Mohalla Mohajani Tola, Allahabad; and (4) parti land No. 22, Mohalla Mahajani Tola, Allahabad. The Land Acquisition Officer awarded compensation with respect to first piece of land on the basis of the net annual rental of the building taking into account the attached garden. In his award with respect to the second the officer awarded compensation for the cost of the enclosure wall in addition to the value of the land at the rate of Rs.
2 per square yard. Similarly with respect to third piece he awarded the compensation for the building on the basis of its net annual assessed income in addition to the value of the contiguous land at the rate of Rs. 2 per square yard. The award with respect to the Fourth piece was made at the rate of Rs. 2 per square yard for the area acquired. In this connection the Land Acquisition Officer observed that: "there have recently been cases in the neighbourhood in which the land has been valued in private transactions at the rate less than Rs. 2 per square yard." This award made by the land Acquisition Officer was substantially affirmed on reference made to the Tribunal constituted for the purpose and was upheld on appeal by the High Court of Allahabad. In affirming the award the Privy Council observed that "Their Lordships are unable to find that either the officer or the Tribunal failed to assess the market value according to the use to which the four pieces of land were put at the relevant date". In this connection their Lordships further thought it desirable to say that some of the observations by the Full Bench in I L R 50 All. 470 could not be supported. It was in this context that the Privy Council made the observations above do extenso. Needless to recapitulate in their Lordships: "The effect of section 23 (3) (a) of the Act of 1894 as so amended is that the possibility of the garden or agricultural plot being used (e.g.) for building purposes in the future must be disregarded." In our respectful opinion this is indeed the essence of the change in the general law brought about by these amendments. The value to be ascertained is the value to the seller of the property its actual condition with sill its existing advantages, by the course excluding all its future prospects which must be ignored altogether. In an unreported case from the Lahore High Court in Governor-General for India and others v. Haji Muhammad Sadiq R. F. A. 197 of 1942 the Delhi Improvement Trust acquired a small plot of land measuring 88 square yards situated in the Delhi Municipal area from the respondents under the Land Acquisition Act, 1894, as amended by the United Provinces Town Improvement Act, VIII of 1919, as extended to the Province of Delhi. The Collector awarded a total sum of Rs. 937 to the owners by way of compensation. The owners objected to the award on the ground that the market value of the property was Rs. 2,000, that the Collector had ignored the price they paid for it and that the potential value was wrongly ignored. The Court refused to accept the contention that the market value of a vacant plot in the centre of a prosperous town was nothing. The evidence produced before the Court was relating to
(a) the price at which the plot was bought In 1934, and (b) the price of similar plots in the neighbourhood recently sold. In this connection the High Court observed that:- "I do not think that it was open to the assessors to assume that these prices took into account some un-ascertained pro--portion representing potential value: no material was supplied to them to enable them to determine what (if any) proportion, of the market value as ascertained by them was due to potential value. The assessors having considered the evidence before them, and arrived at a finding supported by the evidence, I do not see how it is open to me to hold that they have reached wrong conclusion; as they have taken the minimum figure given in the evidence, no scope for reduction of the award on the ground that it is excessive remains, Nor do I think that the learned Judge was entitled to ignore the only evidence of market value on the record or to assume without expert evidence that the prices proved as having been paid included potential value, I refuse to interfere with the award because I have no evidence on which I can do so: if it had been shown that the market price as ascertained has been inflated by the introduction of any such element as potential value, I should have been constrained to exclude the amount due to that element."
24. The matter was also discussed in the Land Acquisition Collector, Rawalpindi v. Lieut.-General Wajid Ali Khan Burk. In adverting to this amendment in section 23 of the Land Acquisition by the Punjab Town Improvement Act, 1922, the Court observed that this clause lays down that in determining the compensation payable the Court should fix the market value according to the use to which the land was put at the relevant time. This clause means that unless it is established that the land is being put to a more lucrative use, the Court will presmue that it was being put to a use which was for that kind of land the least lucrative, In this connection the Court further observed that:- "I will explain my interpretation of this provision of law by an illustration. Suppose there are three contiguous plots of land measuring one acre each. One of them is used for agricultural purpose, one is used as a fruit-growing garden, while the third is not put to any use because the owner intends to build a house on it. The first of these plots is being used as agricultural land, the second is used as a garden and the third as a site for building a house. If land situate near a town is not being used for agricultural purposes and is proved to have been bought for the purposes of building thereon, it cannot be treated as agricultural land for the purposes of the compulsory acquisition and has to be treated as building site . . . . . . . . . .: '
These illustrations are quite apt. A fortiori it follows that in case a land situated near a town is proved to have already, for all intents and purposes, acquired the complexion and character of a building site in its existing condition on the material date it must be treated as in use as a building site in awarding the compensation for its compulsory acquisition under these special provisions in the law.
25. But before us learned counsel for the Improvement Trust, Multan urged that the land in dispute was actually in use for agricultural purpose on the date of the acquisition. So that, the learned counsel maintains that its valuation should be fixed as agricultural land only in accordance with the use to which it is being put under the law applicable to this case. In this connection he has drawn our attention to the fact that according to the entries in the Khasra Girdawari for Kharif 1952 for the land in dispute belonging to Manzoor Hussain, appellant it was actually under his cultivation at the time. According to the jamabandi for the year 1945-46 (Exh. LAC 43) this land in dispute is recorded as culturable. Also in the latest jamabandi for the year 1955-56 (LAC 43) the land is entered as culturable. P. W. 1, Munshi Muhammad Shafi Patwari for the estate deposed that the land in dispute was culturable at the time of its acquisition and according to C. A. W: 24 Faiz Muhammad, Land Acquisition Clerk it was understanding crops which were destroyed by the Improvement Trust at the time of the delivery of possession. From all these facts and circumstances the learned counsel for the Improvement Trust has strenuously argued that the valuation of the acquired land must be determined as purely agricultural to nature according to the use to which it was being put at the time. He maintains that the potential use of this property as a building site in future must necessarily be ignored. We have given our careful consideration to this argument advanced before us. As already discussed above, we have found that the land in dispute has already acquired the character of a building site situated in the midst of a fast developing Abadi since 1947. The primary importance of this land lay in its use as a building site and the mere fact that it was also being brought under cultivation at the same time did not detract from its valuation as a building site. In our opinion its use for the purposes of agriculture was altogether secondary in nature. In our above discussion we have based our decision on the instances of sales of similar land situate on one and the same Chah Perrey Shah Wala. There is hardly any evidence adduced before us that the prices of the plots of lands sold on this well were not fixed according to their the then existing disposition and these also included some elements of their future potential value. We, therefore, find no force in this contention advanced before us by the learned counsel.
26. At the early stages of the hearing before us, the learned counsel for Syed Manzoor Hussain Shah, appellant, also ventured to argue that both the Land Acquisition Collector and the Court below have failed to award to him the full amount of the compensation for his entire area acquired by the Trust. But before us the learned counsel for the Improvement Trust has made a statement, reduced to writing on the 3rd of November 1970, to the effect that the Trust has by means of Resolution No. 2, dated the 24th of December 1963, decided to release the land measuring 5 kanals 11 marlas comprised in Khasra Nos. 5121-5123-5124-5125-5127-5128 and 5144 Min situated in Taraf Mobarak Doem Tehsil and District Multan which was excluded from the acquisition. On this the appellant agreed before us that the compensation may be awarded to him for his remaining land acquired by the Trust. He, therefore, gave up this objection before us.
27. In these cases relying on the provisions contained in subsection (2) of section 23 of the Land Acquisition Act, 1894 the learned counsel for the land-owners attempted to argue before us that in addition to the market value of the land they were also entitled to a sum of 15 % on the market value, in consideration of the compulsory nature of the acquisition. But this contention has no force.
The acquisition in this case was made for the purposes of the Improvement Trust. Multan under the Punjab Town Improvement Act, 1922. Clause (2) of Para. 10 of the Schedule to the Punjab Town Improvement Act in terms lays down that subsection (2) of section 23 of the Land Acquisition Act shall not apply to any land acquired under the Town Improvement Act, 1922, As such the land- owners were not entitled to the 15 % compulsory acquisition allowance under this law.
28. In this connection M. Salim Ullah and others v. Province of West Pakistan and another (PLD 1960 Lah. 450) cited before us is distinguish--able. The facts in that case were that during the course of the acquisition proceedings initiated under the Land Acquisition Act the Land Acquisition Collector had invoked the application of subsection (3);of section 66 of the Punjab Improvement Act, added by the Punjab Town Improvement (Amendment) Act, 1953 for the acquisition of land for the Satellite Town and, according to the use to which the land was put at the time of the issuance of the notification under section 4, had assessed the market value and disallowed the claim of the land--owners for 15 % on the market value as a compulsory acquisition allowance. The land- owners challenged the validity of the award by means of a writ petition against it in the High Court of West Pakistan. The High Court found that the Punjab Improvement (Amendment) Act II of 1953 to the extent it made applicable clause 10 of the Schedule to the main Act to acquisition of land for Satellite Town was ultra vires of subsection (2) of section 299 of the Government of India Act and that compensation for the land acquired in the case must, therefore, be assessed in accordance with the provisions of the main Act. At the same time the Court significantly observed: Clause 10 of the Schedule to the Punjab Town Improvement Act, 1922, violates the principles of compensation enunciated in section 299 of the Government of India Act, 1935 and would have been bad law if it had not been a law in force at the date of the passing of Government of India Act, 1935 and therefore, protected by subsection (4) of section 299 thereof". On appeal against this decision the Supreme Court of Pakistan in Province of West Pakistan and another v. Salim Ullah and others (PLD 1966 SC 547) upheld the view that the Punjab Town Improvement (Amendment) Act II of 1953 to the extent it applied clause 10 of the Schedule to the Punjab Town Improvement Act, 1922 to the main Land Acquisition Act for the acquisition of land for setting up of satellite towns was ultra vires of subsection (2) of section 299 of the Government of India Act and that the compensation for the land acquired in the case must, therefore, be assessed in accordance with the provisions of the main Act. However, in the meantime a Division Bench of the High Court of West Pakistan in Land Acquisition Collector v. Abdul Aziz and others (PLD 1965 Lab. 317) distinguished the case of H. Salim Ullah and others v. Province of West Pakistan and another and was of the opinion that clause 2 of paragraph 10 of the Schedule to the Punjab town Improvement Act made applicable for the purposes of setting up of satellite towns by virtue of Punjab Improvement (Amendment) Act II of 1953 could not be regarded as ultra vires of section 299 of the Government of India Act, 1935.
But whatever the position, we are clear in our mind that all the amendments made by virtue of section 59 read with the Schedule to the Punjab Town Improvement Act, 1922, in section 23 of the Land Acquisition Act, 1894 were protected as the existing law by virtue of Article 299(4) of the Government of India Act, 1935 and likewise by virtue of Article 225 of the late Constitution of the Islamic Republic of Pakistan (1962). These provisions have been continued in force up-to-date the circumstances under clause 2 of paragraph 10 of the Schedule to the Punjab Town Improvement Act, 1922 the land--owners are not at all entitled to the compulsory acquisition allowance for the acquisition of these lands in dispute for the purposes of the Trust.
29. For the foregoing reasons we find and hold that the landowners are entitled to the compensation at the rate of Rs. 55 per marls or Rs. 8,800 per acre only in respect of their lands acquired by the Trust. All the above appeals are disposed of accordingly. There shall be no order as to costs in the circum--stances of these cases.