SAJJAD ALI SHAH, J.---These nine appeals with leave are directed against consolidated judgment dated 24-10-1988 of Division Bench of the High Court of Balochistan, whereby Regular First Appeals have been dismissed upholding order of District Judge, maintaining awards of compensation at the rate of Rs,5,000 per acre in respect of lands of appellants before us, acquired by the Government. Factual background briefly stated is as under.
2. In the year 1979, lands of appellants herein were acquired by Collector of Lasbella, who is impleaded in these appeals as respondent No,1. Notifications under sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter to be referred as the said Act) were issued on 24-1-1979 and 28- 3-1979 respectively. Compensation was fixed at the rate of Rs,5,000 per acre on the basis of sales made during 1974 to 1979 by the Collector on 25-4-1979. Not satisfied, appellants filed applications under section 18 of the said Act before the Collector, who referred them to the District Judge, Khuzdar. In some references one District Judge determined compensation at the rate of Rs,30,000 per acre for Sikni lands and Rs,25,000 per acre for agricultural lands while in others another District Judge compensated at the rate of Rs,20,000 per acre. Appeals were filed and High Court of Balochistan awarded compensation at the rate of Rs,25,000 per acre. Difference of opinion arose between the learned Judges of Division Bench, hearing appeals, over non-issuance of notices to the Government by the District Judge, hence the appeals came up before third learned Judge for resolution of difference of opinion.
3. While hearing was in progress before the third Judge in the High Court, another legal point arose for consideration, whether District Judge, Khuzdar was only Chairman of Majlis-e-Shoora and not a District Judge under the Civil Courts Ordinance. It was so concluded and in the result proceedings in that forum were declared to be coram non judice. The cases were remanded to the Court of District Judge, Khuzdar for fresh disposal according to law and by that time powers so required were conferred upon him removing jurisdictional defect. Parties produced evidence and examined witnesses. After hearing, references were turned down by District Judge (Mr. Abdul Rehman Brahui) vide order dated 29-9-1987 (Civil Appeals Nos.702-K to 708-K of 1990) and District Judge (Mr. Noor Muhammad Magsi) vide order dated 5-4-1988 (Civil Appeals Nos.700-K and 701-K of 1990), maintaining award of compensation of Collector at the rate of Rs,5,000 per acre. Against those decisions, nine First Regular Appeals have been dismissed by the High Court of Balochistan, vide judgment which is impugned in these appeals before us.
4. Short leave granting order was passed on 30-1-1990, which is reproduced as under:-- "Leave to appeaf is granted to examine the following questions of law:
(1) Whether the average price worked out by the authorities themselves could be reduced by more than one-half (from Rs,75,000 per acre to Rs,30,000 per acre), on the grounds mentioned which, it is stated, are not factually correct?
(2) Whether the registered sale-deeds of the same period have been ignored on factually incorrect and irrelevant basis?"
5. In the award order passed .By the Collector on 25-4-1979, copies of which are available and included in the paper books of these appeals, there are mentioned serial numbers, names of owners and area of the land acquired under separate columns, from which relevant particulars are given as under:-- Civil Appeal No, Name of appellant S.No,Area Acre Rod Pol CA 700-K/90 Maqbool Ahmad 44 48 1 12.
CA 701-K/90 Dr. Yahya Abbas 45 48 0 17 CA 702-K/90 Hassan Imdad (deceased) 28 74 1 13.
CA 703-K/90 Mst. Najmunisa 38 62 3 25 CA 704-K/90 Iradat Muhammad Aufandi 40 86 3 22.
CA 705-K/90 Siddique Niaz Rizvi 39 47 3 17 CA 706-K/90 Mst. Binte Fatima 21 75 2 24 CA 707-K/90 Mst. Niaz Fatima 27 13 2 15 CA 708-K/90 Mst. Syeda Dilshad Bano 24 89 1 38
6. Reason for acquisition is mentioned in the award that total area of 918-2-11 acres, comprising private lands of owners, was included in the area earmarked for establishment of Industrial estate at Pathra Mouza, Tehsil Hub District Lasbella. Notices required under the provisions of the said Act were issued and necessary formalities were observed. Appellants/owners of the lands lodged objections and statements of claims demanding high different rates for their agricultural lands ranging from Rs,25,000 to Rs,90,000 per acre. Besides, they also claim high rates for trees, houses, Jhugis, etc. Keeping in view prevailing high prices and importance of establishment of Industries Development Project, the Collector fixed price of Rs,5,000 per acre for land plus Rs,6,000 per room of Katcha houses, Rs,3,000 for Jhugis, Rs,4,000 for drinking well, Rs,500 per tree, Rs,200 per Beni tree and Rs,10,000 per room for Pacca houses. Additionally, Collector awarded 15% statutory allowance as admissible under the Land Acquisition Act.
7. We have heard learned counsel appearing for the parties. Mr. Fakhruddin G. Ebrahim, learned ASC for appellants in Civil Appeals Nos.700-K and 701-K of 1990, stated that from two questions specified in leave granting order, only second question relating to registered sale-deeds is relevant in these appeals and it is to be determined whether registered sale-deeds filed by the appellants in the compensation proceedings in order to show value of land sold in vicinity, have been ignored as factually incorrect and on irrelevant basis or not. He further pointed out that in the same proceedings previously two District Judges determined compensation at the rate of Rs,20,000 per acre and Rs,25,000 to Rs,30,000 per acre. In the High Court in appeals both learned Judges agreed on the rate of compensation at Rs,25,000 per acre, but there was :difference of opinion on some other legal point. However, after order of remand passed by the High Court, when the cases went back again to the District Judge, then compensation was fixed afresh at the rate of Rs,5,000 per acre.
8. In Civil Appeals Nos.700 and 701-K of 1990, land of appellant Dr. Yahya Abbas is 48-0-17 acres and of appellant Maqbool Ahmed Fatehali is 48-1-2 acres. Alongwith these lands, land of Mst.
Sakina Faiz Abdul Ali was also acquired vide Award No,4920 dated 25-4-1979. Owners claimed compensation at the rate of Rs,25,000 to Rs,90,000 per acre for their agricultural lands.
9. During the hearing, cross-objections were filed by the Government, in which claim for higher rate of compensation was disputed and strongly resisted. Further stand was taken that lands in question were acquired by the Collector for public utility for setting an industrial estate for which compensation awarded at the rate of Rs,5,000 was more than sufficient and in accordance with market value of the land.
10. On behalf of appellants in two appeals mentioned above, Nooruddin Murad was examined and evidence of P.W. SA. Niaz examined earlier was also brought on the record. On behalf of Government, two witnesses namely Abdul Sattar Patwari and Muhammad All Shaheen were examined. Attorney of appellants, apart from other documents, produced six sale-deeds, relevant particulars of which are given below:-- A-R-P Total price Average per acre.
1.Exh./P/5 2 2 17 1978 91,218.75 Rs,38,273.40 per acre 2.Exh./P/6 4 2 37 19781,65,593.00 3.Exh./P/7 4 2 11 19791,82,750.00 4.Exh./P/8 2 1 00 197990,000.00 5.Exh./P/9 8 0 00 19793,04,000.00 6.Exh./P/10 2 0 00 1979 85.000.00 Rs, 9,18,561.75
11. Attorney also produced copy of notification as Exh. P/12 dated 9-5-1983 showing Government fixing price of plots in Hub Industrial Trading Estate at the rate of Rs,100 per square metre for industrial plot, Rs,125 per square metre for residential plot and Rs,250 per square metre for commercial plot. He also produced booklet of Hub Industrial Trading Estate Exh.P/13 in connection with selling of acquired land on higher price by Hub Industrial Trading and Estate to show that claim made by owners at the rate of Rs,40,000 per acre was reasonable. Claim was supported by P.W. Allay Niaz Rizvi, who stated that sale-deeds Exh.P/5 to Exh.P/10 related to the lands which were situated in Mouza Pathra of which he was attorney and those lands were adjacent to the land of Hub Industrial Estate. He further stated that average value of those lands was Rs,40,000 per acre and he had received the amount of sale..
12. On the other hand Abdul Sattar, witness of respondents, who is Patwari of the area, stated that lands in question were uncultivated and unsmooth and prevalent value of those lands ranged from Rs,2,000 to Rs,5,000 per acre. In support, he produced six mutation entries from the record relating to years 1978, 1979, 1980 and 1981, showing average price of Rs,2,735.80 and Rs,4,063.69 per acre. Respondents produced Muhammad All Shaheen, representative of the Industries Department, who produced list of 113 persons whose lands were acquired and were paid compensation including Jam Mir Ghulam Qadir Khan at the rate of Rs,5,000 per acre.
13. Evidence of sale-deeds was rejected on the grounds firstly that originals were not produced and photostat copies were produced. Secondly, lands in the sale-deeds were selected pieces and not in bulk requiring levelling with other minus points like lands being rocky, sandy and eroded by rain Nalas. Thirdly, lands in the sale-deeds were close to Highway and town of Hub. Similarly, document Exh.P/3 issued by Industries Department was not considered in support of claim of appellants for the reason that prices mentioned in it would apply after development of industrial plots and laid down the procedure of long term leases. Learned District Judge preferred to accept evidence produced by respondents in favour of market value of Rs,5,000 per care. This valuation was supported by official record of the Government. D.W. Abdul Sattar was examined as Patwari of the area and D.W. Muhammad Ali Shaheen represented Industries Department. Market value mentioned by them was further supported by entires in the mutation register showing sale of land in the same area and near about same time. In such circumstances and for reasons aforementioned, rate of Rs,5,000 per acre as mentioned in the award of Collector was maintained by the learned District Judge.
14. Before District Judge, in references arising from Civil Appeals No,702-K to 708-K of 1990, S.A. Niaz Rizvi appeared as attorney of appellants and produced similar documents as produced in other two appeals mentioned above including five sale-deeds Exh.P/10 to Exh.P/14. He admitted in his evidence that in the lands acquired by the Government, no money was spent on development. On behalf of respondents same evidence of two witnesses Abdul Sattar Patwari and Muhammad Ali Shaheen was produced. Sale-deeds were not relied upon as they were not proved according to law and secondly were of not much assistance as they pertained to selected lands when on the other hand Collector had acquired bulk of lands. Evidence produced by respondents was relied upon and compensation was awarded at the rate of Rs,5,000 per acre.
15. In the High Court, there was joint hearing of both sets of appeals mentioned above and on behalf of appellants, criticism was made that while determining the market value, no weight or significance was given to the sale-deeds produced on behalf of the appellants in reference proceedings. Dealing with this contention, High Court observed as under:-- "There is no force in his contention. Ostensibly indeed acquisition, of lands for the purpose of industries was in sight of the appellants. Possibility of manipulation of fake sales cannot be ruled out. Witness Patwari Abdul Sattar has given independent and correct average value of lands.
Hence for purpose of determination for compensation of the lands we are not inclined to take into consideration these transactions."
16. Before us learned counsel for the appellants urged forcefully that mutations should not have been taken into account and instead registered sale-deeds should have been considered because in the mutations there is no evidence about quality or locality of the land. In respect of transactions mentioned in the mutations, witnesses were not examined. On the other hand, lands mentioned in the sale-deeds were pin-pointed and were in the vicintity. Mr. Ashraf Khan Tanoli, learned counsel for the respondents submitted before us that at the time of award, proceedings were ex parte because nobody appeared on behalf of appellants in response to notices. There was material available before Collector and Revenue Record for the purpose of determination of compensation and the Collector had relied upon Revenue Record which did not reflect sale-deeds.
Copies of the sale-dees were not sent to Tehsildar as required under section 42 of the Land Revenue Act, 1967. Before District Judge, references were contested and both parties had appeared and produced witnesses who were examined. Appellants could not produce any evidence to show that lands in sale-deeds were near Highway and they were unable to prove that compensation was inadequate as burden was upon them.
17. Section 23 of Land Acquisition Act requires that for determination of compensation, factor's to be considered are market value of the land on the date of publication of notification under section 4 of the said Act, damages sustained at the time of taking possession, on account of severance of such land, affecting other property movable or immovable, sufferance of change of residence or place of business and diminution of profits. In addition to market value, the Court shall award a sum of 15% on such market value in consideration of compulsory nature of the acquisition.Section 24 of the said Act further specifies matters which are to be neglected while determining the compensation. It is left open to the Court to determine compensation after taking into consideration factors and criteria mentioned above. No hard and fast rule can be laid down as to what kind of evidence is to be accepted or not because it is dependent on the quality of evidence and peculiar facts of that case. Basic requirement is objective assessment of evidence produced by the parties before the Court in order to determine compensation according to criteria specified in sections 23 and 24 of the said Act. In support of this view, reference can be made to the case of Market Committee, Kanganpur v. Rayyat Ali and others (1991 SCM R 572). Normally mutation in the record-of-rights is final step in the transaction of transfer of title to be considered as conclusive proof unless it is rebutted. It is open to the Court to prefer registered sale-deeds as against entry of mutation if the Court is satisfied on the basis of quality of evidence produced before it by the parties. Question of previous sales of land in this context came up for examination in the Supreme Court in the case of Fazalur Rehman and others v. General Manager, S.I.D.B. And another PLD 1986 Supreme Court 158. It was held that while determining the value of land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the "past sales" should not be taken into account but the value of the land with all its potentialities may also be determined by examining 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 this context it has been further observed that 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 sales" of the land cannot, therefore, be always taken to be an accurate measure for determining the price of the land intended to be acquired. Above rule is followed in the case of Province of Punjab through Collector, Sheikhupura v. Akbar All and others (1990 SCM R 899). In the case of Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector, Abbottabad and others (1991 SCM R 2164), question of compensation was considered in the light of future prospects of the land and following principles of law have been laid down for consideration of future prospects of land while determining compensation:--
(i) That an entry in the Revenue Record as to the nature of the land may not be conclusive, for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable of becoming Chahi land;
(ii) that while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered;
(iii) that the market value of the land is normally to be taken as existing on the date of publication of notification under section 4(1) of the Land Acquisition Act but for determining the same, the prices on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years may be considered including other factors like potential value etc."
18. In the appeals under consideration, keeping in view the legal position stated above, we are satisfied with the reasons assigned by the High Court for relying upon the evidence produced by respondents and not accepting evidence of sale-deeds in preference to mutations for determination of compensation. Additionally we are of the view that no evidence has been produced to show that lands in the sale-deeds, although in the same Mouza Pathra, and near to the Highway were in close proximity with lands acquired. In Civil Appeals Nos.700-K and 701-K of 1990, sale-deeds Exh.P/5 to Exh.P/10 are shown to be in Survey Nos.747, 732/1, 845, 747, 749 and 749/1. Survey numbers mentioned above, appear in the map to be in close neighbourhood of RCD Highway. Reason is obvious that when lands in the survey numbers were sold and purchased between private parties, price was high and in the range of Rs,40,000 per acre, because these were selected plots and very near to the Highway. As against that land acquired is in bulk and is not developed land as admitted by the attronies of the appellants in their evidence and further that the land has been acquired to set up Industrial estate and in one particular area which is specified.
Lands acquired cannot be compared with lands shown in the sale-deeds for valid reasons mentioned above. Same argument would apply to cover sale-deeds produced in Civil Appeals Nos.702-K to 708-K of 1990.
19. It is submitted that land is acquired for industrial estate which is being set up near the Highway and on that account its potentiality and future prospects are to be considered in line with principles laid down in the case of Market Committee, Kanganpur v. Rayyat Ali and others (1991 SCM R 572). For facts and reasons aforementioned, we increase the price per acre by Rs,2,000 with interest and 15% acquisition charges. Appeals are allowed in the above terms with no order as to costs.