' This regular first appeal by Land Acquisition Collector and WAPDA etc. Is under section 54 of the Land Acquisition Act (I of 1894) against the award by Reference Court, Senior Civil Judge, Rahimyar Khan dated 24-10-1989 and arises out of following circumstances:- ' That the land (completely detailed in the reference) was acquired by Province of Punjab for the benefit of WAPDA Scarp VT, Rahimyar Khan for the construction of B.D-2 (Abe Hayat) Drain under Salinity Control and Reclamation Programme of WAPDA Rahimyar Khan. The notification under section 4 of the Land Acquisition Act (1 of 1894) (hereinafter referred as the Act) was issued on 7-2- 1985 and was notified in official Gazette on 23-2-1985. Notification under section 6 of the Act was issued on 7-7-1986 and was published in official gazette on 23-9-1986. The matter was referred to the Land Acquisition Collector, Rahimyar Khan, who gave the award on 16-10-1986 wherein the value of the land acquired was assessed to be Rs,5,000 per acre excluding compulsory acquisition charges and cost of fruit trees.
2. Feeling dissatisfied with this award the owners of land submitted reference to the Collector under section 18 of the Act and prayed for reference by the Collector to the Court for determining the correct compensation of the land. Accordingly, the matter was referred to the learned Senior Civil Judge, Rahimyar Khan. In this application the owners of the land claimed that the market value of the land was not less than Rs,50,000 and also laid claim with respect to the fruit trees.
3. The reference was contested by appellant No,1 (WAPDA). No written statement was filed by appellant No,2. On the pleadings of the parties following issue was framed:-- "Whether the petitioners are entitled to receive the compensation at the rate of Rs, 50,000 per acre and the price assessed by the respondent in this respect is inadequate? OPP.
4. The learned Senior Civil Judge after taking into consideration the evidence of both the parties, accepted the reference vide an order dated 24-10-1989 and enhanced the compensation from Rs, 5,000 per acre to Rs,40,000 per acre. The Land Acquisition Collector, WAPDA Scarp VI, Rahimyar Khan and Province of Punjab through Collector District Rahimyar Khan have challenged this award in this first appeal.
5. At the very outset, the learned counsel for respondents raised preliminary objection in respect of maintainability of this appeal in view of rule laid down in Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad (PLD 1987 SC 485), and Bchram Khan and 54 others v. Military Estate Officer and 2 others (1988 SCMR 1160), wherein it was held that the order of the Civil Court on reference made to it, is not independent order but merely a substitutive order whereby the award of Land Acquisition Collector is substituted by the order of the Civil Court which order then becomes the award. Since by virtue of subsection (2) of section 50 of the Act, the award made by the Land Acquisition Collector is final and cannot be challenged except by a party which has expressly been conferred the right of appeal, hence the Military Estate Officer and the Central Government who did not have any such right expressly conferred on them did not have any locus standi to file an appeal.
6. On the other hand, learned counsel for the appellants in reply contended that the Supreme Court in Wapda v. Muhammad Farid and others (1990 SCMR 98) has granted leave to reconsider the view enunciated in the aforenoted authorities, therefore, it was proposed that till the decision of the Supreme Court, this appeal may be kept pending.
7. We have taken notice of this contention with respect to maintainability of the appeal and we are not pursuaded to postpone the hearing of the appeal on a number of grounds. The award of the Reference Court has been challenged in this appeal on both legal as well factual grounds. We are, therefore of the view that this appeal can be heard on merits and be decided.
8. Learned counsel for appellants in support of this appeal contended that the Reference Court had overlooked the entries embodies in Exh. R-3 (23-2-1985 17 24-2-1984 It was contended that vide a Mutation No,223 attested on 27-1-1985 the land in Chak No,48/P, Tehsil and District Rahimyar Khan was sold in consideration of Rs, 25,000. According to this mutation, therefore, the market value of the land in Chak No, 48/P came out to be Rs,5,000 per acre. Elaborating his submission, it was contended that the entries of Exh. P-3 read with the statement of Masood Saleem Leghari, Land Acquisition Collector RW-1 was sufficient in quality and quantity to support the conclusion arrived at by Land Acquisition Collector. According to the learned counsel by overlooking this evidence, the learned Reference Court has committed a grievous error of law and the appeal merited to be accepted on this ground alone. No other point was urged.
9. Learned counsel for respondents, supported the impugned decision. It was represented with force that the said witness RW-1 gave evasive reply to the question that the WAPDA had paid the price of land at the rate of Rs,40,000 per acre. This reply alone was sufficient to destroy the argument of appellants.
10. It was further contended that the finding of the Reference Court was based upon consideration of material on record and was in conformity with the applicable law.
11. We have heard the arguments advanced by the learned counsel for the parties and perused the record with care. Before we proceed to give our finding, on the respective contentions of the parties, it will be appropriate to examine they applicable law. It is a settled principle of law that this Act directly interferes with the inviolable right of the people regarding their disposal of property. It is founded upon the doctrine of "salus populi suprema lex" that the interests of the public are supreme and that the private interests are subordinate to the interests of the State, therefore, it is a well-established canon of interpretation that in construing the provisions of this Act, the benefit is to be given to subject. The law dealing with the matters to be considered in determining the compensation is provided in sections 23 and 24 of the Act. Sectors 23 and 24 are as follows:- "23.Matters to be considered in determining compensation.--(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration- ' First, the market-value of the land at the date of the publication of the notification under section 4, subsection(1); ' Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; ' Thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; ' Fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; ' Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and ' Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
(2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition.
24. But the Court shall not take into consideration;-- ' first, the degree of urgency which has led to the acquisition; ' secondly, any disinclination of the person interested to part with the land acquired; ' thirdly, and damage sustained by him which, if caused by a private person, would not render such person liable to a suit; ' fourthly, any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration under section 6, by or in consequence of the use to which it will be put; ' fifthly, any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired; ' sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put; or ' seventhly, any outlay or improvements on, or disposal of, the land acquired, commenced, made or effected without the sanction of the Collector after the date of the publication of the notification under section 4, subsection (1).
12. A bare reference to section 23 of the Act will show that owner of the land is entitled to receive the market value of the land. Market value of the land is not defined in the Act. This important word has come under consideration before the superior judiciary from a very long time and it will be useful to notice certain authorities for reaching the correct conclusions. It was laid down by the Privy Council in Fraser v. City of Fraserville (L.R. 1917) A.C. 194) that;- "It is the value to the seller of the property in its actual condition at the time of expropriation with all its existing advantage and with all its possibilities, excluding any advantage due to the carrying out of the scheme for the purpose for which the property is compulsorily acquired."
13. The same principle was affirmed in R.B. Lala Narsingh Das v. Secretary of State of India (1925 P C 91). This principle was again affirmed in Atmaram Bhagwant Ghudgay v. Collector of Nagpur (AIR 1929 P C 92).
14. The same principles were followed by the superior judiciary of Pakistan after partition. Reference may be made to Sheikh Manzoor Hussain v. The Multan Improvement Trust, Multan and another (PLD 1972 Lahore 225) and Malik Abdul Qayyum etc v. Punjab Province etc. (PLD 1979 Lah. 853).
15. It will be appropriate to examine the latter case-law in which it was held that even the future use of property acquired be taken into consideration in. In Fazalur Rehman and others v. General Manager, S.I.D.B. And another (PLD 1986 SC 158) while considering the question of future use, his Lordship Mr. Justice Aslam Riaz Hussain observed as follows:- "I would, therefore, like to emphasize that that while determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the "past sales" would not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as a Court witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate case there should be no compunction even on the market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of the documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful, and even necessary to examine such witnesses while determining the market price of the land in question, because of the prevalent tendency that in order to save money on the purchase of stamp papers and to avoid the imposition of heavy Gain Tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The 'previous sale' of the land cannot, therefore, be always taken to be an accurate measure for determining the price of the land intended to be acquired."
16. This enunciation of law was noticed in Sub. Haider Zaman and others v. Government of N.-W.F.P and others (1987 SCMR 465). However, no decision on the basis of this principle was rendered in this case.
17. This principle was affirmed in Malik Aman and others v. Land Acquisition Collector and others (PLD 1988 SC 32) but the appeal was dismissed on the ground that the parties have not adduced enough evidence and material for assessment of compensation in accordance with subsequent inflation due to the depreciation of currency under section 4 of the Act and before passing of the award.
18. From the foregone critical analysis of applicable case-law and sections 23 and 24 of the Act, the following principles emerge in respect of assessment of compensation:--
(1) The market value or market price means the price that property would fetch in the market. The price will be highest price a willing buyer would pay and a willing seller would accept both being fully informed and the property being exposed for a reasonable period of time.
(2) The market value may be different from the price of property which it B can fetch at the time of actual sale. The market value is that price which might be expected to bring if offered for sale in a fair market.
(3) In assessing the compensation the potential value i,e, the benefits, advantages arising from the present use and future use are to be taken into consideration.
(4) The inflationary trend and depreciation in currency of the country between the date of acquisition under section 4 of the Act and the date of award also should not be totally ignored and be taken into consideration.
19. Guided by these principles, we now proceed to examine the evidence on the record. In order to prove their case the respondents/plaintiffs produced PW1, Abdul Sattar, PW-2, Muhammad Shafique, PW-3, Muhammad Aslam Patwari and tendered into evidence the following documentary evidence:-
(1) The certified copy of jamabandi relating to Khata No, 13/11 of the year 1983-84, Exh. P/6.
(2) The copy of jamabandi relating to Khata No, 16/15 of the year 1982-83, Exh. P-7.
(3) The copy of jamabandi relating to Khata No,18/17 of the year 1982-83 Exh. P-10.
(4) The certified copy of jamabandi relating to Khata No, 14/28 of the year 1982-83, Exh. P-11.
(5) The copy of Mutation No,203 attested on 24-4-1983, Exh. P-13.
(6) The copy of Mutation No, 235 attested on 3-1-1986, Exh. P-14.
(7) The copy of Mutation No,229 attested on 1-2-1986, Exh. P-15.
' While appellants produced RW-1 and the copy of award No,174 dated 16-10-1986 and Ausat Yak Sala, Exh. R-3.
20. Quresh Muhammad in his testimony deposed that he purchased the land at the rate of Rs,37,000 per acre about 10 to 12 years back; that the market value of the land at the time of acquisition was Rs, 50,000. Abdul Sattar PW-1 and Muhammad Shafique, P.W.2 supported Muhammad Quresh. Muhammad Aslam Patwari Halqa, Chak No,48/P, stated that Goshwara, Exh.
P-2 related to sales made from 1-7-1982 to 30-6-1983. In this period only 3 acres of land was sold for consideration of Rs,1,08,000 and average price of per acre came to be Rs, 36,000. It was further stated by him that the average price per acre in the year 1985 was Rs,50,000 and that the average price of per acre in the year 1986 came about Rs,36,363. This witness was subjected to cross- examination but nothing was extracted to demolish evidential value of this witness. The evidence produced by the WAPDA and respondent No,2 only comprises of the statement of Masood Saleem Leghari and Exh. R-3. It will be noticed that Exh. R-3 in fact embodies the instance of only one mutation bearing No,223. It is not the "Ausat Yak Sala" at all. Therefore, the market value assessed on the basis of Exh. R-3 is of no help whatsoever to the case of appellants. We, therefore, find the contention of the learned counsel for appellants to be completely untenable and without any merit.
21. The case is to be examined from another important aspect. Muhammad Saleem Leghari was put question that the WAPDA has paid the compensation in the adjoining land at the rate of Rs,40,000 per acre in respect of land acquired in the year 1985-86. The said witness neither denied it nor gave any reply. Muhammad Quresh in his statement repeated this assertion which was not impeached by way of cross-examination by appellants/respondents. It is a settled principle of law that when an assertion made in examination-in-chief is not subjected to cross-examination that assertion is admitted to be true. We, therefore, have no hesitation in coming to the conclusion that the respondent accepted Rs,40,000 to be the market value of the land in dispute.
22. As already noted above, the reference Court assessed the market value of the land on the date of issuance of notification under section 4 of the Act. He neither assessed the compensation by taking into consideration the potential value i,e, the benefits, and advantages from the present use and future use and also did not take into consideration the inflationary trends and depreciation in the currency of the country on the date of acquisition under section 4 of the Act and on the date of award. The Reference Court did not take into consideration these circumstances on account of lack of material on record. Even the respondents have not filed cross-objections or any grievance with respect to this aspect of the case. We do not feel the necessity to examine the compensation on the basis of these considerations in appeal.
23. For the reasons stated above, we do not find any substance in the contention of the learned counsel for appellants on merits. Accordingly we dismiss the appeal with costs throughout.