' MIAN ALLAH NAWAZ, J.---These regular first appeals bearing Nos.36, 37, 38, 39 and 40 of 1975 by WAPDA are under Section 54 of the Land Acquisition Act (hereinafter referred as the Act) and arise out of the acquisition proceedings and award rendered by the reference Court, Administrative Civil Judge, Muzaffargarh on 31-1-1974. Therefore these appeals are being disposed of by a common judgment.
2. The facts in brief are; that by means of Notification under Section 4 of the Act dated 21-6-1966 an area measuring 183 Kanals 13 Marlas situated in village Taliri, Tehsil & District Muzaffargarh was acquired for the purpose of construction of WAPDA Colony. Notice was issued to the respondents under Section 6 of the Act. The Land Acquisition Collector by means of award dated 8-8-1966 assessed the compensation at the rate of Rs,3,300 per acre. Feeling dissatisfied with this assessm ent, Muhammad Siddique, Mst. Shakoori, Abdul Majid, Safdar Hussain, Sultan Mahmood and Qamar-ud-Din, the owners (herein respondents) instituted application under Section 18 of the Act for determination of compensation the Land Acquisition Collector, Muzaffargarh. The learned Land Acquisition Collector sent t"ese references to the Court of learned Senior Civil Judge, Muzaffargarh. In the references, the applicants claimed that the market value of the land at the time of acquisition was Rs,20,000 per acre; that applicants were entitled to a price for the loss caused to them on account of destruction of standing crop and were also entitled to compensation in lieu of the trees of mangoes and dates standing on the land at the time of acquisition. The references were contested. It was pleaded in the written statement on behalf of WAPDA that the compensation was correctly determined by the Land Acquisition Collector; that at the time of acquisition, the market value of the land was Not beyond Rs,3,300 per acre; that the land was agriculture in nature. On the pleadings of the parties the learned referee Court framed following issue:- "Whether the compensation awarded to all the petitioners is Not adequate, if so what is the adequate compensation? OPP.
3. With the consent of both the parties, on 27-11-1967, the learned Court appointed Mr. Ata Ullah, the then General Assistant as local Commissioner for the purpose of determining the compensation of the land. The said local Commissioner recorded the evidence of the parties and submitted his report on 22-5-1968 wherein compensation was assessed at the rate of Rs,6,320 per acre. This report was objected to by both the parties and so with the concurrence of the parties, was set aside on 30-6-1969. On 15-10-1969 Malik Saeed Akhtar, General Assistant, Muzaffargarh was appointed as a local Commissioner who submitted his report on 16-11-1969. This report also met the same fate. This report was set aside and so aNother local Commissioner by the name of Mr. Ghauri was appointed who did Not enter his task and so on 30-11-1971, the Additional Deputy Commissioner (Consolidation), Muzaffargarh was appointed as a local Commissioner. He also followed the aforementioned pattern and so finally Mian Muhammad Iqbal, General Assistant (Revenue) was appointed as local Commissioner. He submitted his report on 12-9-1972. The objections were filed by the parties, the learned referee Court framed following issue arising from the objections to this report:-- ' Whether the report of the local Commissioner is liable to be set aside?
' After hearing both the parties and taking into consideration the report and the evidence furnished by the local Commissioner, learned Administrative Civil Judge, Muzaffargarh by means of order dated 31-1-1974 rendered the award on the basis of determination of compensation made by the local Commissioner. The award was made on the basis of Rs, 8,000 alongwith 15% compulsory acquisition charges. The appellants were further directed to pay 6% per annum interest on the enhanced valuation till adjustment of the award.
4. Learned counsel appearing on behalf of appellants contended that the impugned award was incorrect. It was stressed that the learned reference Court had based his award on the statement of local commissioner without taking into consideration the evidence produced by the appellants.
According to the learned counsel, the documents submitted by the appelant conclusively demonstrated that the price of the land was Not beyond Rs,3,300 as determined by the Land Acquisition Collector. It was further added that the respondents have Not appeared in the Court to prove that the assessm ent of Land Acquisition Collector was incorrect and so the Court was bound to give effect to the presumption that the owners of the land have accepted the award rendered by the Land Acquisition Collector. It was represented with full force that the circumstance of Non- appearance as a witness before the Court led to the presumption under section 114, sub-clause (g) of the Evidence Act to the effect that the claim of the owners set up in application was incorrect. No other point was urged.
5. On the other hand, learned counsel appearing on behalf of the respondents supported the impugned award. It was further added that in view of rule laid down in Pir Khan through his legal Heirs v. Military Estate Officer, Abbottabad PLD 1987 SC 485, the Wapda had No right to file appeal under section 54 of the Act.
6. We have heard the learned counsel for the parties at length and have perused the record with the able assistance of both the learned counsel.
7. Having already set out the evidence, the circumstances, the submissions of both the parties and the finding of the Court below, we herein proceed to determine the respective contentions. We first proceed to determine the objection of the respondents with respect to the maintainability of these appeals. This point came for consideration before the Supreme Court in Pir Khan's case. It would be advantageous to examine the rule laid down in Pir Khan's case. In this case the land was acquired under the Act for the purpose of construction of Pakistan Ordnance Factory, Havelian. The owners of the land filed application under section 18 of the Act. The learned reference Court assessed the market value of the land as Rs, 1,000 and Rs, 2,000 per kanal. The Military Estate Officer, Hazara Circle, Abbottabad and Federal Government through Defence Secretary filed appeal before the High Court of West Pakistan. The owners thereof respondents raised objection with respect to the maintainability of appeal. The Division Bench of Peshawar High Court overruled this contention, accepted the appeal to the extent of compensation and reduced the compensation awarded to the owners by the reference Court. The owners of land filed appeal in the Supreme Court of Pakistan. The Supreme Court accepted the appeal and held that the appeal by the Military Estate Officer was incompetent. Relevant passage in this judgment is being quoted:-- "We agree and would add that the order of the Civil Court on reference made to it by the Land Acquisition Collector is Not an independent order but merely a substitute order, whereby the award of the 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 respondents Nos. 1 and 2 who did Not have any such right expressly conferred on them, did Not have any locus standi to file an appeal. As already observed, No such right is to be assumed on any a prior ground and a right of appeal can be exercised only if it has been expressly conferred on a party by statute.
' Furthermore, neither the Central Government Nor the Military Estate Officer can be deemed to be parties who have been adversely affected by the order of the Civil Court. If the Central Government or the Military Estate Officer could get the land in question more cheaply by private negotiations they can refuse to accept the land at the price determined by the Court. They canNot have it both ways. Having chosen to set in motion the special powers given to the Government to acquire land under the Land Acquisition Act for public purposes they are to be confined to those provisions and canNot claim further rights and higher privileges than those provided for under the provisions of the said Act. Since under the provisions of the Act only a special and limited appeal is provided for against the award of the Court, which in the facts and circumstances of this case would be availed of by the Provincial Government or the Collector No other party, including the appellants herein could avail of a right of appeal. As neither the Provincial Government Nor the Collector chose to file an appeal, the appeal filed by the Central Government and the Military Estate Officer was indeed an appeal filed by "strangers", having No locus standi to file it".
' The aforesaid principle was reiterated in Behram Khan and 54 others v. Military Estate Officer and 2 others (1988 SCMR 1160) and Pakistan Steel Mills Corporation Ltd. And others v. Deputy Commissioner (East), Karachi and others (1989 SCMR 812).
8. In this sequence there is aNother case titled Wapda v. Muhammad Farid and others (1990 SCMR 98). In this case, Wapda filed civil appeal against the judgment of the High Court. The learned Attorney-General took up the point that Pir Khan's case was Not correctly decided as certain provisions of the Constitution of Islamic Republic of Pakistan, 1973 namely Articles 149 and 173 were overlooked. Dealing with these contentions, the Bench of the Supreme Court comprising of three Judges passed the order in following words:-- "We consider that this aspect of the case does indeed require further consideration but as the judgments Noted above have been passed by a Bench of three Judges and the review petition directed against them was dismissed by a Bench of 5 Judges if it is found that the rule laid down in these judgments requires to be varied, dissented from or overruled, a larger Bench of 7 Judges could alone be in a position to do so. These cases may therefore, be put up for appropriate orders before the Hon'bel Chief Justice."
9. It is clear from the order of the Supreme Court in Wapda v. Muhammad Farid and others' case that the leave was Not granted and it was proposed that the case be put up before the Hon'ble Chief Justice for the purpose of placing it before the larger Bench of 7 Judges who alone will be in a position to vary, dissent or overrule a view affirmed by the Bench of 5 Judges. Seen in this background, it is obvious that the rule laid down in Pir Khan's case and affirmed in Behram Khan's case is still in the field. This being the law declared by the Supreme Court, is binding on us under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. Accordingly we have No difficulty in reaching the conclusion that these appeals are incompetent.
10. Even otherwise, we have critically examined the submissions made by the parties and perused the record. After careful consideration, we find No merit in these appeals. Before we proceed to examine the merit of the contentions of the parties, it is appropriate to examine the applicable law.
The acquisition proceedings were commenced under the Act for the benefit of Wapda for the purpose of construction of Colony. It is a well settled law that this Act determines the mode of acquisition and as such directly interferes with inviolable rights of the people regarding the disposal of their property. It is founded upon the doctrine of "salus populi suprema lex" that the interests of 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 the subject. The law dealing with the circumstances to be considered for determination of compensation is contained in sections 23 and 24 of the Act. A bare reading of sections 23 and 24 of the Act indicates that neither the value of the land Nor the market value of the land is defined in it. In sections 23 and 24 the circumstances are provided for the purpose of computing the compensation. The sections 23 and 24 have engaged the attention of the superior judiciary in a number of cases. It was laid down by the Privy Council in Fraser v. City of Fraserville (L.R.(1917) AC 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 advantages 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."
' The same principle was reaffirmed in R.13. Lala Narsingh Das v. Secretary of State of India (1925 Privy Council 91). This principle was again reaffirmed in Atmaram Bhagwant Ghadgay v. Collector of Nagpur (AIR 1929 Privy Council 92), Vyicherla Narayana Ajapatiraju v. Revenue Divisional Officer VI. Gapatam (AIR 1939 Privy Council 98) and Malik Abdul Qayyum etc. v. Punjab Province etc. (PLD 1979 Lahore 853). The same golden principles for the purpose of assessing the compensation/market value of the land were followed with eNough emphasis in Secretary of State v. Naresh Chandra Bose (AIR 1926 Calcutta 1000), Collector of Chingleput District, Saida v. Kadir Mohideem (AIR 1926 Madras 732) and Secretary of State v. Chuni Lal and others (AIR 1931 Lahore 732).
11. The law relating to compensation has passed through evolutionary development. The first case on this point is Fazalur Rehman and others v. General Manager, S.I.D.B. And aNother (PLD 1986 SC 158). In this case the circumstance of future use of property was also taken into consideration while considering this question, his Lordship Mr. Justice Aslam Riaz Hussain observed as follows:-- "I would, therefore, like to emphasise 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 cases there should be No compunction even on relying upon the oral testimony with respect to the market value of the property intended to be acquired, because even while deciding cases involving questions of life and death, the Courts rely on oral testimony alone and do Not insist on the production of 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 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 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."
12. In Nawabzada Muhammad Saeed Khan v. The Collector, Land Acquisition, Multan and aNother (1990 MLD 1232), a Division Bench of this Court after surveying the entire case-law laid down the following principles in respect of assessment of a compensation:-- "(1) The market value or market price means the price 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 a property can actually be sold at a given time. The market value is that price which it 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."
13. Guided by these principles, we herein proceed to exmine the evidence produced by the parties before the local commissioner. The evidence on behalf of respondents comprises of the testimony of Karim Bakhsh, P.W.2 Allah Wasaya, P.W.3, Nazar Hussain P.W.4, Malik Ghulam Nabi P.W.5, Jamshed Khan, P.W.6 and Abdul Majid P.W.7. The respondents submitted the certified copies of mutations of sales bearing No, 2292, 255 and 64 marked as Exhs,C-1, C-2 and C-3. The Wapda produced Munshi Khadim Hussain Patwari and Mian Muhammad Fazal, XEN Wapda Colony. Learned counsel appearing on behalf of Wapda produced the certified copies of the Revenue Record and the copy of award of Land Acquisition Collector. From the perusal of this evidence, it is quite clear that the land in dispute was situated near the city of Muzaffargarh. It lay by the side of Multan-Muzaffargarh Road. In the vicinity of this land was situated Degree College. There was a workshop of District Bus Service, there was one saw machine and a shop. From the examination of these features of the land, we have No hesitation in coming to the conclusion that the land at the time of acquisition was though being used for agricultural purposes, had potential of being a site for residential as well as commercial purpose. We are quite clear in our mind that neither the local commissioner Nor the referee Court had correctly determined the nature of the land. The finding of the referee Court, that the land was agricultural in nature is without solid footing and is contrary to record. As a matter of fact the land was being used for agricultural purposes but had potential of being used for both commercial and residential purposes. Having concluded about the nature of the land Now we proceed to the contentions of the learned counsel for the appellant regarding the assessment of compensation by the referee Court. The Court took into consideration the assessment made by the local commissioner. The local commissioner in fact took mean of average price of sales in the relevant revenue estate pertaining to the year 1965, 1966 and mean of mutations tendered in evidence by the owners. According to the statements prepared by the Patwari, the average price relating to year 1965 was Rs,6,320 per acre, the average price relating to year 1966 came to be Rs,7,300 per acre while the mean of mutations relied by owners came to be Rs,11,000 per acre.
These average prices are in statements prepared by the Patwari and are on the record as map {{URDU TEXT}} On the aforesaid basis the Land Acquisition Collector came to the conclusion that the price of land at the time of acquisition was Rs,8,207 per acre. The learned referee Court awarded his claim at the rate determined by the local Commissioner. The point for consideration is whether the compensation determined by the referee Court is correct or Not. As we have already Noticed that the referee Court has incorrectly determined the nature of the land and failed to examine the potentiality of it, we feel that the compensation granted by the referee Court was inadequate and Not in consonance with the market value of the land at the time of acquisition. In the aforesaid background, we Note with anguish that the respondents/owners of the land were most probably tired of this protracted litigation with respect to compensation of their land compulsorily acquired by the Acquisition Authorities. They neither filed appeal against the award of referee Court Nor filed any cross-objection in these appeals perhaps with the fear that they might be landed into vortex of litigation again. Despite our finding that compensation has been determined on the basis of erroneous finding regarding the value of land and by overlooking the principles contained in Sections 23 and 24 of the Act in conjunction with the enunciation of law by the superior judiciary, we are unable to go any further on account of circumstance of Not filing appeal or cross-objection in the present appeals.
14. It is a settled principle of law that appellate Court will Not disturb a decree unless there is appeal or cross-objection. Reference may be made to the rule laid down in V.P.R.V. Chochalingam Chetty v. Seechai Ache and others (AIR 1927 P.C. 252), Anath Nath Biswas and others v. Dwarka Nath Chakravarti and others (AIR 1939 P.C. 86) and Raja Ram v. Lehna and aNother (AIR 1942 Lahore 87).
The same view was taken by the Supreme Court in Khairati and 4 others v. Aleem-ud-Din and aNother (PLD 1973 SC 295). The relevant passage from this case is quoted as under:- "It is No doubt true that a respondent can support a decree even on points decided against him, but a respondent canNot attack a decree or ask for its variation without a cross-objection. In the present case, the trial Court had found as a fact that the suit for specific performance was Not barred by time. Therefore, by contending that the suit was so barred, the respondent in this case was Not seeking to support the decree as it was but rather to attack a finding in the decree; and this he could Not do without filing any cross-objection."
15. In the light of foregoing analysis, we have No difficulty in reaching the conclusion that these appeals have No merit. We accordingly dismiss these appeals. The appellants shall bear the costs of proceedings throughout.