' MUHAMMAD ASADULLAH, J.--Land measuring 32 kanals 16 marlas situated in Dera Ghazi Khan was acquired under the Land Acquisition Act, 1894 for expansion of Tele-communication System/ Facilities and construction of Staff Quarters. Notification dated 31-1-1978 under section 4 ibid was published on 6-3-1978. Its corrigendum dated 28-12-1978 through a notification was published on 31-12-1978. The possession was taken on 19-2-1979. The Land Acquisition Collector, D.G. Khan announced its award on 25-2-1979 whereby he assessed the compensation at Rs.15,900/- per kanal plus 15% for compulsory acquisition plus 8% interest. The respondent being not satisfied with the compensation awarded to him claimed reference under section 18 ibid and a reference was accordingly made by the Land Acquisition Collector, D.G. Khan to the learned Senior Civil Judge.
The learned Senior Civil Judge accepted the reference and assessed the compensation at Rs.60,000/- per kanal plus 15% for compulsory acquisition plus interest at 8%. Aggrieved by the said enhancement the appellant has filed this appeal. We have perused the record and have heard the arguments.
2. The appellant or the Provincial Government (or the Collector) did not dispute the assessment of compensation at Rs.15,000/- before the Land Acquisition Collector or before the Senior Civil Judge and do not dispute the same before us. At the same time their main stand relates to a consent letter dated 14-9-1978 (Mark-A) in which allegedly the respondent agreed to receive compensation at Rs.494.72 per marla i.e. Rs.9,894.40 per kanal. This consent letter was denied by the respondent as a P.W. The appellant made an application to the learned Referee Judge for obtaining expert evidence of an hand writing expert in regard to the said consent letter. The said application was dismissed on 8-6-1982. They also made an application for production of Karamat Ullah, a witness (additional evidence) but the same was also disallowed by the said learned Judge on 8-6-1982. He had also, perhaps, to appear in relation to the said consent letter. The consent letter was not produced before the Land Acquisition Collector during the proceedings relating to the award or at the time of making of the award. The said consent letter was not even relied upon during the proceedings before the learned Senior Civil Judge. Obviously no notice for admitting or denying the said letter was issued to the respondent. Neither any expert nor the said Karamatullah were included in any list of witnesses. In these circumstances, the learned trial Court was justified in refusing to allow the additional evidence of any handwriting expert or of Karamat Ullah. Apart from that in the award dated 25-2-1979 the compensation has been assessed at Rs.15,000/- per kanal with the consent of a representative of the appellant and this consent is not disputed by the appellant. In the consent letter, as already mentioned, the rate of compensation allegedly agreed to was Rs.9,894.40 per kanal. If this consent letter had to be relied upon there was no question of accepting the compensation as Rs.15,000/before the Land Acquisition Collector. Similarly, if the said consent letter had been in view of the appellant they would have taken proceedings to challenge the award on the allegation that the agreed compensation was Rs.9,894.40 but the Land Acquisition Collector had awarded the same in excess i.e. At Rs.15,000. Similarly, the appellant would have taken a plea before the learned Senior Civil Judge either through a cross objection or even in arguments that the compensation of Rs.15,000/- was in excess of the demand of the respondent. This was not done. This means that if the consent letter was in existence that was not accepted and in fact it was deviated from by the appellant itself. Therefore, the said consent letter even if it had been proved to be in the handwriting of the respondent would have little value.
3. The learned counsel for the appellant has also argued that the award itself is based on consent of the parties and the respondent is bound by the agreed compensation at Rs.15,000/-. It is quite clear that the two pleas, one mentioned in the foregoing paragraph and the other mentioned in the award itself are self-contradictory. Either the agreed rate could be Rs.9,894.40 or Rs.15,000/- as awarded by the Land Acquisition Collector. This would in fact mean that there was neither any consent letter nor there was any consent in the making of the award. In any case, no consent and writing from the respondent was obtained by the Land Acquisition Collector and therefore, it is difficult to accept that the award was made with the consent of the parties.
4. The learned counsel for the respondent has argued that even if there were any consent by the respondent through the said consent letter dated 14-9-1978 (Mark-A) or as stated in the award neither the Land Acquisition Collector nor the learned Senior Civil Judge was bound by the same and the compensation had to be awarded without taking into consideration the said consents. It is the duty of the Land Acquisition Collector and the Reference Court to assess the fair compensation payable to land owner whose land has been acquired for public purposes. In this respect he has referred to Mr. Samiullah v. Collector of Aligarh (AIR 1964, P.C. 75) and Sarkar v. Ghulam Muhammad and another (PLD 1963 A J & K 26). In the first case it was held that the Land Acquisition Collector, in assessing the compensation was bound to exercise his own judgment in regard to the valuation of the acquired property and his judgment cannot be controlled by an agreement between interested parties and similarly the Referee Judge must exercise his own judgment in assessing the fair compensation. The basis of the said ruling was that the property was to be acquired for public purpose and the compensation, therefore, was also to be made from public money and in doing so neither the interest of the State should be injured nor the owner of the property concerned should be deprived of the fair compensation. In the second case the owners had agreed to the compensation at Rs.1,000/- per kanal through their statement made on 20-10-1961 but then retracted from the said statement through an application dated 13-11-1961 and it was held that since the statement dated 20-10-1961 was made in ignorance of their legal rights the admission of Rs.1,000/- per kanal would not bind the land owners. It was held that under section 23 of the Land Acquisition Act, 1894 the fair compensation had to be assessed by the Land Acquisition Collector keeping in view the criteria mentioned in the same. We are in full agreement with the law laid down in the said two cases. In section 23 of the Land Acquisition Act, 1894 the ingredients to be kept in view while assessing the compensation of the market value have been very clearly detailed. It does not admit of the determination of compensation with the agreement of the parties unless of course the case is of fair compensation according to the judgment of Land Acquisition Collector himself or of the Referee Judge. The principle of assessment and payment of fair compensation is based on a Constitutional Fundamental Right. Article 24 of the Constitution of Islamic Republic of Pakistan deals with the protection of property rights. Clause (2) says that no property shall be compulsorily acquired save for a public purpose and save by the Authority of law which provides for compensation. Not only that it also says that the law should be such that it either fixes the amount of compensation or specifies the principles on or manner in which the compensation is to be determined and given. Therefore, while the said Article as an exception permits of compulsory acquisition of property for public purposes it also provides that the mode of assessment and payment of compensation shall be laid down by law. This means that in fact the Constitution envisages that ordinarily no property shall be compulsorily acquired but if it is so acquired and that too only for public purposes its adequate and fair compensation should be assessed and paid according to law. It is in this context that the consent of the parties cannot be the sole factor for determination of the fair compensation. It may be that such consent can be taken into consideration, if at all, alongwith the other evidence that comes on record. In this case the criteria for determination of fair compensation is laid down in the Land Acquisition Act, 1894 and particularly in section 23 thereof. The Constitution provides that the compensation should be assessed according to the principles and in the manner provided in law and not otherwise.
' Under this principle the compensation is to be assessed under section 23 ibid and not otherwise.
Therefore, even if the said consent letter dated 14-9-1978 is taken to be genuine and even if the consent mentioned in award dated 25-2-1979 is taken to be correct even then compensation for the land in dispute coud not be awarded solely on the basis of the same. In this particular case the consent letter mentioned the compensation at Rs.9,894.40 per kanal and the consent mentioned in the award gave the rate at Rs.15,000/- per kanal. The deviation in the two rates itself shows that the parties did not know as to what was the fair compensation. Therefore, the said consents had no significance or value and the Land Acquisition Collector could not assess compensation only on the basis of any of the two. If he was to take into consideration the consent of the respondent and if the appellant wanted to base the assessment on the rate given in the consent letter then there was no question of agreeing to compensation at Rs.15000/-. The appellant itself discarded the consent allegedly recorded in the consent letter dated 14-9-1978 and they could not, therefore, make use of the said consent letter even before the learned Senior Civil Judge and cannot take benefit from the same before this Court. Accordingly, as discussed above, the Land Acquisition Collector and the Referee Judge were bound to assess a fair and adequate compensation for the property acquired for public purposes and no element of consent of a party or of the parties could be made the sole basis for assessme nt of fair compensation. The owner is being deprived of the property through compulsory acquisition and is being unsettled therefrom and it is he who is the sufferer and it is he whose suffering is to be compensated fairly and adequately. Therefore, the compensation should be the price which a willing purchaser would pay to a willing seller.
5. The learned counsel for the appellant has referred to Umar Farooq v. Acquisition Collector, Bannu and 4 others (PLD 1975 Pesh. 103) and Wall Muhammad v. Collector Land Acquisition, Hazara (1980 CLC 1090) and has argued that when an owner has given a consent for the awarded compensation he cannot thereafter dispute the same. The said two cases do not relate to the consent either given before the Land Acquisition Collector or before the Referee Judge. In fact the said cases relate to the receipt of the compensation with or without protest. It has been held that if the campensation is received under protest then the owner will have a right to dispute the compensation in accordance with law and if he has received the compensation without protest the position will be otherwise. In this case it is not even alleged that the respondent received the compensation without protest. In fact he claimed and made a reference dated 8-4-1979 without loss of any time. Therefore, he was not debarred from seeking a reference.
6. As already pointed out above the compensation is to be assessed keeping in view the criteria provided in section 23 of the Land Acquisition Act, 1984. The criteria provided therein is mainly the determination of the market value of a similar property with a smilar situation. No evidence whatsoever was produced before the Land Acquisition Collector in regard to the determination of the market value. He did not even bother to get average price calculated on the basis of the earlier transactions of sale. Therefore, no material for determining the market value is available from the proceedings that took place before the Land Acquisition Collector. However, sufficient evidence was produced before the learned Senior Civil Judge in this respect. It is an admitted fact that the land in dispute is in D.G. Khan and even at the time of acquisition, Abadi had grown near and around it. The land began to be sold at high rates. Some land near the land in dispute was taken over and developed by the Provincial Government and then sold out to the public. Mutations Nos.
1193, 1194, 1278,1186 Exts. P.2 to P.5 based on registered sale deeds dated 26-11-1977, 26-11-1977, 23-1- 1978 and 17-10-1977 respectively were produced and proved on record through Ghulam Haider Patwari P.W.1. The first two sales of 10 Marlas each took place at Rs.30,000 each. The third sale of 5 Marlas took place for Rs.10,000 and the 4th sale of 14 Marlas took place for Rs.16,000. If the average of the said sale prices is calculated it will be much above Rs.60,000 per Kanal. Sanaullah Khan Sub- Engineer appeared as P.W. 2 and stated that the Government land was auctioned from Rs.6,500 to 10,500 per Marla. That land was fully developed. Even if the development charges are taken to be 50% of the same, the price would come to much more than Rs.3,000, per Marla (or Rs. 60,000 per Kanal). P.Ws. 1 and 2 are not private persons. They are officials, one belonging to the Revenue Department and the other to the Department of the appellant. They were produced to give evidence on the basis of documents and record. Therefore, they had no interest for the respondent which could motivate them for favouring him. In fact they could show no favour to him. They were deposing just with the aid of the record and from the record. Their evidence therefore is according to the situation at the spot and according to the facts which are supported by the official record.
Muhammad Yousaf, Supervisor (RW.1) has stated nothing in regard to the market value and he is the sole witness prooduced by the appellant. As such there is no rebuttal whatsoever in regard to the market value from the side of the appellant. The learned Senior Civil Judge was, therefore, quite justified in determining the compensation at Rs.60,000 per Kanal for the land in dispute.
7. In view of above discussion the appeal is dismissed. The parties shall bear their own costs throughout.