MUNAWAR AHMED MIRZA, CJ.---R.FAs. Nos.26 and 28 of 1991 are directed against same judgment and decree dated 2-10-1991 passed by learned District Judge (Ad hoc), Quetta whereby on setting aside award dated 26-11-1991; compensation of acquired land has been fixed at Rs.3 per, sq. Foot besides compulsory acquisition charges admissible under law. Since legal and factual aspects agitated in both these appeals are identical, as such are being decided through common judgment.
2.Relevant facts concisely stated are that an area of land measuring 203 Acres, 3 Rode 38 Pol situated in Mahal Viala Mehtarzai Mouza MehtarzAi, Tappa Baleli, Tehsil and District Quetta was acquired for establishing Waste Water Treatment Plant (Sewerage Project). Towards 6th May, 1990 Deputy Commissioner-cum-Collector, Quetta was informed that representative of WASA had selected abovementioned area for said purpose. Consequently preliminary notification under section 4 of Land Acquisition Act, 1894 was issued by the Collector, Quetta on 12-9-1990. Respondents/land owners namely; Niaz Mohammad and others riled their objections on 8-10-1990 against acquisition of said land which was contested by WASA authorities. The Collector however, rejected stand of land owners vide order dated 3-11- 1991. Subsequently Commissioner, Quetta Division issued notification under sections 6 and 7 of Land Acquisition Act authorising Assistant Commissioner Sub-Division-cum-Collector to acquire land for carrying out sewerage project. Respondents on the basis of market value claimed compensation at Rs.5 per sq. Foot. Whereas Director Administration WASA pointed out that area sought to be acquired consists of barren, saline and waste land, full of ditches, thus suited for requirement of Sewerage Project. It was professed by WASA authorities that maximum market value in the locality could not be more than Rs.20,000 (Rupees Twenty thousand) per acre. Considering the material brought on record by parties, learned Collector gave award on 26-11-1991 whereby land owners were granted compensation to the tune of Rs.25,300 per acre inclusive of 15% compulsory acquisition charges Respondent/land owners being aggrieved ' on 17-12-1990 submitted at application under section 18 of Land Acquisition Act seeking reference to District Judge, Quetta, and claimed compensation at Rs.5 per sq. Ft. WASA authorities vehemently contested the Reference asserting that market value was less than even twenty thousand rupees per acre. Learned trial Court on 26-5-1991 framed following issues and gave parties opportunity of leading evidence:- 1) Whether the land of the petitioners was acquired by the respondents on less prevailing market value. If so, to what effect?
(2) What was the market value at the time of acquisition of land?
(3) Whether the applicants are entitled for the relief claimed?
(4) Relief.
Record reveals that land owners adduced two witnesses namely (i) Abdul Karim Patwari and (ii)
Mohammad Salim Property Dealer, besides attorney Niaz Mohammad. P,W.1 Abdul Karim Patwari produced copies of Jamabandi Exhs.P/1 to P/5 containing following details:-- S.No,DocumentDate Area of landPrice Location Price calculate on the basis of per acreage R-P Rs, Rs,
1. Exh.P/1 6-10- 198812-6 2,55,000 Mouza 83,950.60
2. Exh.P/2 3-4-19891-5 30,600 Mehtarzai 1,08,800.00
3. Exh.P/3 31-5- 19890-18 58,800 Viala 5,22,666.67
4. Exh.P/4 29-4- 19917-5 2,00,000 Mehtarzai 1,12,280.70
5. Exh.P/5 29-4- 19913-22 1,00,000 Tappa Balelo1,12,276.06 P.W.2 Muhammad Salim deposed that land situated in Killi Mehtarzai Baleli is being sold at the rate of Rs.
Two or two and half lac per acre. During cross-examination he admitted that value of land is dependent upon its location, surroundings, distance from residential locality, size of plot. He conceded that value of a bigger piece of land is generally low and sufficiently different and variable from smaller piece of land.
Petitioner Niaz Muhammad disclosed that suit land was situated at a distance of 8 to 9 miles away from Quetta. He expressed that about 20,000 feet of land was facing towards road. He also produced copy of Collector's Award Exh.P/7 given in 1983 fixing compensation of Rs.50,000 per acre in respect of land near AIR PORT which was highest limit under relevant law. He claimed payment of compensation of Rs.5 per sq. Foot.
During cross-examination it was admitted that suit land was purchased by land owners about 10 years back at Rs.11,000 (Rupees eleven thousand) per acre. He however volunteered that subsequently land was levelled with bulldozer. Suggestion about acquired land being barren or consisting of ditches was refuted.
Whereas WASA authorities in rebuttal also adduced two witnesses namely (i) Abdul Karim Patwari and (ii)
Hamid Latif Rana, Land Collector, WASA. Patwari RW/1 has produced copies of Jamabandi record Exhs.R/1-A to R/7-A details whereof are mentioned below:- S.No,Exh. No, date of transactionarea of land soldSale considerationlocation Value calculated per Acre R-P Rs, Rs,
1. Exh.P/1 30-12-1989 16-2 82,000 Mouza 20,436.14
2. Exh.P/2 1-2-1989 3-9 13,000 Mehtarzai16,124.03
3. Exh.P/3 7-12-1988 38-17 1,43,500 Viala 14,938.19
4. Exh.P/4 10-8-1988 307-25 6,52,375 Mehtarzai8,482.73
5. Exh.P/5 4-8-1988 8-2 26,000 Tappa Baleli12,919.25
6. Exh.P/6 17-2-1998 7-29 25,601 13,256.18
7. Exh.P/7 17-2-1988 45-11 1,87,110 16,530.98 R.W.2 Harnid Latif Rani explained that various areas of land were inspected, but eventually suit-land having barren terrain which consisted of ditches etc.Was found suitable for Sewerage Project. According to him market value of suit land was assessed to be Rs.20,000 amount whereof already stood deposited During cross-examination it was not disputed that about 22000 feet of land was alongside Ghaza Band Road.
Learned District Judge on appraisement of evidence modified the award and granted compensation to land owners at Rs.3 per sq.Ft. Beside compulsory acquisition charges admissible under law vide judgment dated 2-10-1991 which has been challenged by both the parties through R.F.As Nos.26 and 28 of 1991.
Operative portion is reproduced hereinunder:- "On basis of the documents produced by the applicants and the respondents it is clear that the assessm ent was made in a very haphazard way. No proper enquiry was conducted by the Collector. The learned District Attorney produced the record pertaining to enquiry by the Collector. It is observed that the enquiry itself is not a judicial enquiry' but a bundle of correspondence between various Government functionaries. The average rate of land calculated by the Collector. Is erroneous. It was confronted to the District Attorney that whether there is any land within a radius of 10 miles in Quetta of which price is 20 paisas per sq. Foot. The learned District Attorney could not give any solid example.
On the basis of the above discussion have come to the conclusion that the rate awarded by the Collector is ridiculous less. The claim of the owners is Rs.5 per sq. Foot which may be market price for the present but in the year when the land was acquired it was not more than Rs.3 per sq. Foot. The average rate of price also comes the same which is based on the Revenue Record made available to the Court by the applicants comprising of transactions effected between some other parties in respect of the adjoining land. The award is accordingly set aside and compensation of the land acquired should be paid to the applicants at the rate of Rs.3 per sq. Foot plus compulsory acquisition charges as admissible under the law. With these observations the references are disposed of. The record received from the Collector be sent back."
Mr. Sharifuddin Pirzada, learned counsel for petitioners emphatically argued that land owners are entitled to fair compensation which a willing buyer normally would pay to a willing seller, keeping in view market - value and potential capacity of land sought to be acquired. Learned counsel contended that suit-land had frontage towards Ghaza Band Road having greater potential value and was being utilized by the land owner for more beneficial purposes. He also canvassed that land owners on account of acquisition were deprived of their livelihood, therefore, fair and appropriate compensation claimed by them ought to have been paid by the authorities. To supplement submission, reliance was placed on the dictum laid in following reported judgments:-- (i)The Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty (AIR 1959 SC 429).
(ii)Fazalur Rehman and others v. General Manager, S.I.D.B. And another (PLD 1986 SC 158).
(iii)Mrs. Gunj Khatoon and another v. The Province of Sindh through Secretary, Revenue Department, Karachi etc. (1987 SCM R 2084).
(iv)Market Committee, Kanganpur through Administrator v. Rayyat Ali and others (1991 SCM R 572).
(v)I.C.I. Pakistan Limited v. Salahuddin and others (1991 SCM R 15).
Reference was also made to an unreported judgment, Government of Sindh through Mr. Abdul Majeed Sheikh v. Syed Shakir Ali and others (C.P.L.A. No.236-K of 1991), decided on 27-11-1991. Referring to observations contained in 1991 SCM R 572 it was urged that plus'factors regarding proximity-of suit land to developed area, its frontage towards road, potential capacity were more than disadvantages attached to it, therefore, considering all aspects, claim of Rs.5 per sq.Ft. Was quite fair and justified.
Ch. Ejaz Yousuf, learned counsel for WASA strenuously challenging the impugned judgment urged, that suit-land was admittedly purchased by land owners towards year 1981 for sale consideration of Rs.11,000 per acre which at the relevant time undisputedly was its real and potential value . According to him whatever proportionate increase of value be visualised, property would hardly fetch Rs.20,000 to Rs.30,000 per Acre, as rightly assessed by Collector after comparing various transactions carried out in same Mohal.
Therefore amount of compensation fixed by Collector through Award dated 26-11-1990 reflects true market value of suit-land. It was canvassed that learned District Judge without assigning reasons had arbitrarily arrived at conclusion which are ex facie defective. He maintained that amount granted through award was a fair compensation whereas claim of land owners was highly excessive and unconscionable. Learned counsel explained that acquired area consisted of barren, saline, tract of land having ditches and only small portion was facing towards Ghaza Band Road, which by itself is side approach. According to him it being remotely located waste-land had no potential value, thus found suitable for Sewerage Project. It was argued that evidence produced by land owners does not mention potential or real value of property but on the contrary the documentary evidence negates his claim. However, for opposing claim of land owners reliance was placed by him on the observation in case Market Committee, Kanganpur through Administrator v. Rayyat Ali and others 1991 SCM R 572 and Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 32.
We have carefully considered arguments advanced by learned counsel for parties and also perused the record. It may be seen that broad basis, before the Collector for determining compensation in respect of acquired land are contained in section 23 of Land Acqutisition Act. Similarly prohibiting factors concerning assessm ent of compensation are specified in section 24 of said enactment. Honourable Supreme Court in case Market Committee, Kanganpur v. Rayyat Ali and others 1991 SCM R 572, while discussing various aspects came to following conclusions about plus or minus factors which were also taken note of in AIR 1988 Supreme Court page 165. It would be profitable to reproduce here said aspects for effectively deciding real controversy raised in this appeal.
"Plus Factors---:
(1) Smallness of size.
(2) Proximity to a road.
(3) Frontage on a road.
(4) Nearness to developed area,
(5) Regular shape.
(6) Level vis-a-vis land under acquisition.
(7)Special value for in owner of an adjoining property to whom it may have some very special advantage.
Minus Factors: (1)Largeness of area.
(2)Situation in the interior at a distance from the road.
(3)Narrow strip of land with very small frontage compared t o depth.
(4)Lower level requiring the depressed Portion to. Be filled up. ~ (5)Remoteness from. Developed locality.
(6)Some special disadvantageous factors which would deter a purchaser."
It was argued by learned counsel for land owners that plus factors were larger in number than minus. He attempted to enumerate them by referring to nature of suit-land. However, scrutinizing the evidence in the light of available material it may be seen that acquired land measures 203 Acres 3 Rodes 38 Poles. It was candidly conceded that area obviously being large would constitute minus factor. Suit-land is located about 8 to 9 miles away from Quetta City. It does not have close proximity to main Highway. Portion of said land however faces towards side-road known as Ghaza Band Road. According to attorney of land owners about 20,000 feet or 22,000 feet of acquired land has frontage towards Ghaza Band Road. It would be appropriate to mention here that one acre of land consists of 43,560 sq.Feet. Whereas size of plot measuring one acre in rectangle shape would be 198' x 220' and for a square piece comes to almost 208.70' x 208.70'. Thus calculating the area falling towards frontage approximately would cover 10 or 11 acres It is therefore quite-apparent that more than 190 acres from acquired land would be considerably away towards depth, clearly indicating minus factors. No evidence has been led by land owners to show nearness of acquired land to developed area. On the contrary evidence of opposite side suggests that suit-property is saline, barren and waste land consisting of ditches far away from developed area, therefore, more suited for Sewerage Project. Obviously vagueness of the evidence adduced by land owners dissuades from accepting stand canvassed on their behalf. There is no material to suggest that suit-land constitutes. Source for the subsistence of land owners. They have not even alleged cultivation of land in their original claim. Nor any source for irrigating said land has been even pointed out. Absolutely no evidence showing payment .Of Malia or Ushr, has been produced. Testimony of attorney rather negates facturn of cultivation over any portion of acquired land. In this background and evidence we would proceed to examine market value or real potential value of suit-land, propriety. Of Collector's award as well as impugned judgment. A Court while awarding compensation under Land Acquisition Act must ascertain value on the date of first Notification E3 considering various factors including nature and location of acquired land and sale price of adjoining lands. In the instant case acquired land was admittedly purchased by land owners towards year 1980-81. It remained in the same position till process of acquisition was completed. However, with passage of time, prices have considerably increased but estimated value must be based on material brought on record through evidence.
Notification for acquisition under section 4 of Land Acquisition Act was issued on 12-9-1990. Land owners have produced 5 copies of mutations Exh.P/1 to P/5 for establishing market value of lands in Mohal Mehtarzai. Exh.P/1 concerns sale of lands on 6th October, 1988 for about Rs.83,950.60 per acre. Exh.P/2 shows sale of very small piece measuring I Rode and 5 Poles on 3rd April, 1989 for value of Rs.1,08,800 per acre. Exh.P/3 relates to sale of only 18 Rodes on 31-5-1989 for Rs.58,800 indicating approximately Rs.5,22,066 per acre. Exh.P/4 discloses sale of 7 Rodes 5 Poles on 29th April, 1991 for Rupees two lacs, which comes to approximate value of Rs.1,12,280 per Acre. Similarly Exh.P/5 wherein sale of 3 Rodes 22 Poles which also took place on 29-4-1991 showing sale consideration of Rs.1,12,676.00 per acre. Whereas Jamabandis Exh.R/1 to R/7 brought on record by WASA authorities show an approximate sale price of Rs.8,482 to Rs.20,436 per acre during February, 1988 till December, 1989. Regarding the nature of property land P.W.3 Niaz Muhammad attorney has unambiguously admitted that land owners did not themselves cultivate the acquired land. His version about cultivation of suitland by previous owner is fully contradicted by his assertion that bulldozers for levelling the land were used during year 1983. On the basis of above discussed evidence, the Court has to ascertain market value which a willing purchaser would pay to a willing seller and potential capacity of acquired land. None of the witnesses adduced by land owners including their attorney have mentioned a word concerning potential value or capacity of acquired land. No doubt mere past-sales cannot legitimately form basis for fixing compensation, nevertheless land owners are bound to satisfactorily establish potential value if any and use to which said land could be put in near future, so that real value- could be ,appropriately ascertained. It is pertinent to note that Exh.P/4 and Exh.P/5 relate to sale transaction of land in the same Mohal which prima facie had been voluntarily effected between different parties subsequent to date of notification. Land owners have themselves relied upon the same as substantial piece of evidence., These documents disclose sale consideration little above Rs.1,12,000 (Rupees one lac twelve thousand) per acre. There is nothing on record to reflect that said value has been incorrectly mentioned by the parties or for any reason lower price than actually paid was incorporated while recording Exh.P/4 and Exh.P/5. It may be seen that Exh.P/4 and Exh.P/5 speak of small. Pieces of land whereas acquired land relates to large-tract therefore normally prices vary, admittedly by all standards price of small piece of land in comparison to big area is always on sufficiently higher side. Considering these aspects even if maximum latitude is shown for ascertaining real potential value of acquired land, we have to bank upon best evidence produced by land owners. Obviously Exh.P/4 and Exh.P/5 relate to period subsequent to notification which normally has neither relevancy nor evidentiary value. Anyhow real, proper or potential value is to be ascertained keeping in view nature and size of acquired land, its intended use, proximity with developed area and frontage on main road. Exh.P/1 relates to sale of land on 6th October, 1988 at about Rs.83,950 per acre, whereas Exh.P/2 mentions sale of land approximately at Rs.1,08,800 per acre. The comparison of all these transactions shows gradual and moderate increase in value concerning small piece of land in Mohal Mehtarzai. Normak value of such small pieces cannot form effective basis for large tract of land. However, even if for purpose of awarding compensation the value of land on the basis of evidence led by petitioner is considered, the price per acre would range between Rs.83,000 to that of Rs.1,12,000. Attempt was made through oral evidence to establish that acquired land has market value to the tune of Rupees two lacs or two and half lacs per acre. But there is absolutely no corroboration in that respect. On the contrary documentary evidence through Exh.P/1, Exh.P/2, Exh.P/4 and Exh.P/5 produced by land-owners completely belies the same. Besides entries Exh.R/1 to Exh.R/7 also negate such evidence. Thus no reliance can be placed on said verbal testimony.
It is pertinent to mention here that Award Exh.P/C relates to acquisition of about 4 Acre R/1-P/5 of land on Airport Road for installation of PME/VOR equipment at Quetta Air Port. The location size, nature and potential value of said area of land has marked difference, from area acquired in the instant case which therefore cannot form basis for evaluating its correct market value. No doubt WASA authorities have produced evidence indicating maximum sale price of Rs.20,000 per acre in said Mohal for similar kind of land. The amount mentioned in revenue entries Exh.P/1 to Exh.P/7 of same Mohal supplements stand taken by WASA. Admittedly land owners purchased suit-land in year 1981. No portion of said land has at all been alienated or sold during this period. There is no tangible evidence of improvement carried out on said portion of land. Documentary evidence mentions value of land situated in the Mohal without specifying its potential capacity. Thus on the basis of availble material, market and potential value of acquired land, in our opinion at best would be the amount contained in Exh.P/4 and Exh.P/5, in addition to compulsory acquisition charges, admissible under the law.
It is regretfully noted that learned trial Court while passing impugned judgment has made certain remarks about methodology adopted by Collector while giving award dated 26-11-1990, but surprisingly itself fell in serious error by failing to give reasons for determining amount of compensation payable to the land owners. The trial Court has based conclusion merely on whims or guess, without making reference to material brought on record by the parties thus disregarding established norms and requirement of law for recording judgment. It is not understandable from impugned judgment, how learned trial Court has ascertained prevailing market value of suit-land in Respect of time-period when Notification for acquisition was issued by Collector. Thus slipshod method by arbitrarily jumping at the conclusion without assigning reasons, is highly disapproved.
For the foregoing discussion and consideration of ratio decided in aforequoted reports we are inclined to hold that it would be just and fair to award compensation to the land-owners at the rate of Rs.1,12,000 per Acre. They shall also be entitled to compulsory acquisition charges as admissible under the law. Payments on said basis be made to land owners promptly. Impugned judgment and award of Collector are modified accordingly.
Appeals are disposed of in above terms. Parties are however left to bear their own costs.