MUHAMMAD AFZAL LONE, J---Leave to appeal was granted from the judgment dated 18-6-1991, rendered in writ jurisdiction by a Division Bench of the High Court of Peshawar in land acquisition matter to examine the appellant's contention "that the compensation assessed in the award is not in accordance with sale price prevalent in the locality during the year preceding the issuance of Notification under section 4 and that the Government had given them assurance that the cost of the land would be about 21,04,500 which must have been calculated by them on the basis of previous sale transactions... The appellant was not associated in the acquisition proceedings and the award is incomplete, in disregard of law and principle of natural justice.
2. The dispute relates to land measuring 92 Kanals, 3 Marlas. The entire area is situate in village Bhabi except a small piece comprising Khasra No,33 located in Village Taru, Tehsil Noshera, District Peshawar. The land was acquired for the purposes of establishing a depot by the appellant for storage of its petroleum products. The reason being that such a depot earlier maintained by it in the heart of the city of Peshawar was required to be shifted to the outskirts of the city under the directions of the Provincial Government. The site was selected by the appellant itself; notification in respect whereof under section 4 of the Land Acquisition Act was issued on 22-12-1986, followed by Notification dated 21-1-1987 under section 17 of the Act. On the asking of the Land Acquisition Authorities the appellant deposited a sum of Rs, 21,45,000 as estimated cost of the land. The Land Acquisition Collector made and announced his award on 9-2-1987 and assessed the market value of the land at the rate of Rs, 1,00,000 per Kanal. The operative part of the award is as under:-- "Besides, they had produced a copy of Letter No,I-30/347/V/93, dated 1-11-1986 issued by the MEO Circle Peshawar according to which the land belonging to Pakistan Army measuring 6.065 acres Camping Ground at village Taru was sold to Pakistan State Oil Company Ltd. At the rate of Rs, one lac per Kanal. On the other hand, the representative of the Company made no objection on one year average cost of the sale mutations, however, they have deposited the amount of compensation at the rate of Rs, 20,000 per Kanal already intimated to them vide this office No,960/OK, dated 30-12-1986.
Now to determine the compensation of the land we have to look at the date of issuance of notification under section 4 of the Act by going back for full one year, considering all sale mutations of the similar kind of the land that had taken place in the same Mauza in which the land under acquisition is situated, for working out Aust Yaksala. In the instant case the date of issue of notification under section 4 of the Act is 26-9-1986, meaning thereby that we will consult the mutation record of the similar type of land for period between 27-9-1985 to 28-9-1986. But keeping in view the urgency of the shifting of all oil depots from the city area and objection raised by the land owners duly supported by a sale transaction through open auction in the said locality much earlier before this acquisition, it is concluded that as the land under acquisition is one of the highest value having been situated near the National Highway, so the sale transaction through open auction in favour of Pakistan State Oil Company Ltd. Is taken into consideration for evaluation of the land and fix the rate worth Rs, one lac per Kanal.
Now the following position emerged with regard to the compensation of the land on the basis of market value as explained above at the rate of Rs, one lac per Kanal.
(1) Price of land measuring 92 Kanals 7 Marlas at the rate of Rs, one lac per KanalRs, 92,35,000
(2) Compulsory acquisition charged at the rate of 25% for Rs, 92,35,000 comes toRs, 23,08,750 Total Rs,1,15,43,750."
3. On the appellant's move the Land Acquisition Collector made a reference to the Civil Court under section 18 of the Act. The learned Senior Civil Judge, Peshawar, acting as an Acquisition Judge, on the authority of the law laid down in Behram Khan and others v. Military Estate Officer (1988 SCM R 1160) maintained that reference application at the instance of the acquiring agency was incompetent and by order dated 21-4-1990 dismissed the same. The appellant assailed this dismissal through invocation of writ jurisdiction of the Peshawar High Court. The writ petition was dismissed by a learned Division Bench vide judgment dated 18-6-1991, which is under challenge before us. The reasons which prevailed with the High Court in dismissing the writ petition are: firstly, the award having been made on 2-9-1987, the writ petition filed in the year 1990 was barred by laches; secondly the remedy against the award by way of reference under section 18 having been specifically prohibited by law, such prohibition could not be circumvented and relief obtained through writ jurisdiction; thirdly the factual controversy involved in determination of market value of the land fell beyond the limited scope of writ jurisdiction.
4. To deal first with the appellant's last contention reflected by the leave grant order that no opportunity was provided to it to participate in the acquisition proceedings, meaning thereby that notice under section 9 of the Act was not issued to the company; from the perusal of the Land Acquisition Collector's file we find that such notice was sent to the appellant; in pursuance Whereof a representative of the company took part in the proceedings before the Land Acquisition Collector. When confronted with this record, the learned counsel for the appellant did not press this point any further. As regards the alleged assurance of the Government as to the provision of the land against a cost of Rs, 21,39,000, in Order No,962/OK dated 30-12-1986 passed by the Land Acquisition Collector, which is available in his file, it is clearly stated that the assessment of the cost was tentative in character, and at the time of award it was liable to be increased or decreased.
Even otherwise, the land belonged to private parties, arrayed as respondents in this appeal, of which they could not be deprived by the Governmental authorities, except through its acquisition and on payment of fair compensation determined in accordance with law. It is, therefore, idle on the part of the appellant to contend that the Provincial Government had committed itself to provide the land to the company at a particular price. Needless to state that the land was selected by the appellant itself and was not thrust on it. While making the selection the appellant could not have been oblivious of the fact that only a few days before the issuance of Notification under section 4 of the Act, the land in village Taru was purchased in auction by Pakistan State Oil Company Ltd. At the rate of Rs, 1,00,000 per Kanal.
5. The main plank of the arguments of the learned counsel for the appellant is that the Land Acquisition Collector should have estimated the market value on the footing of "Aust Yaksala" but he illegally ignored it and rested the estimation on a solitary sale transaction through auction, which according to him did not furnish correct criterion to determine the market value. He thus, reiterated the ground urged in the leave grant order that the compensation assessed by the Land Acquisition Collector was excessive and not in conformity with the prevalent market value in the locality at the relevant time. Reference was also made by him to section 24 of the Act, which ordains that in determining the compensation the Court shall not take into consideration "the degree of urgency which has led to the acquisition". The learned counsel invited our attention to the remarks appearing in the award that "keeping in view the urgency of shifting of all depots from the city area"; the sale transaction through open auction in favour of Pakistan State Oil Company was taken into consideration and urged that the Land Acquisition Collector unequivocally banked on the degree of urgency for acquisition of the land in violation of section 24, which was fatal to the sustenance of the award.
6. We are not persuaded to strike off the award on the rectitude of these submissions. Section 23 makes mention of various matters to be considered in determining the compensation. One of such factors enumerated therein is that the date relevant for determination of market value is the date of the notification under section 4. Not unoften the market value has been described as what a willing purchaser would pay to the willing seller. It may be observed that in assessing the market value of the land, its location, potentiality and the price evidenced by the transaction of similar land at the time of notification are the factors to be kept in view. One year's average of the sales taking place before the publication of the notification under section 4 of similar land is merely one of the modes for ascertaining the market value and is not an absolute yardstick for assessment.
From the perusal of the record we find that there are two "Makhloot Ausat Punjsala" on the land acquisition file; one for village Bhabi for the period from 21-7-1985 to 21-7-1986 comprising 5 transactions yielding an average sale price of Rs, 9,000 per Kanal only; and the other is for village Taru covering the period from 9-7-1984 to 9-7-1985, but only one transaction is mentioned in it; of which the sale price comes to Rs, 24,280 per Kanal. It is significant to point out that there is nothing on the land acquisition file to give any indication regarding the location, potentiality and other characteristics of the different pieces of land included in these "Aust Yaksala". Neither their distance from the land in question is ascertainable nor it is known as to whether or not these are possessed of similar advantages and capable of prospective use as the land acquired by the appellant. The "Aks Shajra" of the land of the appellant amply demonstrates that it is a well shaped, one rectangular compact block having a fairly wide frontage and on one side, it abuts on the railway line. The Land Acquisition Collector's observation in the award that this land is of highest value and situate near the National Highway, for the purposes of assessment of its market value is of paramount importance. We have glanced through the MEO's letter dated 1-11-1986 referred to in the award under which an area measuring 6.065 acres situate in village Taru-Bhabi was sold to Pakistan State Oil Company for consideration of Rs, 48,00,000. It is pertinent to point out that all the Oil Companies were directed by the Provincial Government to shift their storage depots from Peshawar City and it was in this connection that the Pakistan State Oil Company purchased a piece land in village Taru-Bhabi. It seems to us that the locality being lucrative the appellant also chose to acquire land therein. In these circumstances, the reliance of the Land Acquisition Collector on the said sale transaction for determination of the market value of the land is not open to exception.
7. The case may also be examined from another angle. As laid down in West Pakistan WAPDA v. Mst.
Hiran Begum (1972 SCM R 138) the market price of land is a question of fact. The basis of fixation of the market value adopted by the Land Acquisition Collector is not unsound, muchless to be dubbed as perverse; rather it is fair and reasonable. There is thus, no good ground to disturb such a finding of fact, particularly when no cogent material or basis to fall back on for assessing the compensation, has been brought on the record by the appellant. As regards the attack on the validity of the award on the ground of contravention of section 24, we may observe that the Land Acquisition Collector's observations made therein relied upon by the appellant's learned counsel, are merely passing remarks with no intention to affect the fixation of compensation, by the Provincial Government's directive to the Oil Companies to remove away their storage depots from Peshawar City. We are of the view that even if the correct legal position envisaged by section 24 was present to the mind of the Land Acquisition Collector, his assessment would not have been different one.
8. Only the question of laches remains to be disposed of. In this behalf the appellant's case is that there has been some divergence in the judicial opinion as to whether or not an acquiring department has the right to file reference under section 18 of the Act. The submission is that the remedy by way of reference before the Acquisition Judge, and then the challenge thrown before the High Court, to the validity of his order, refusing to entertain the reference, were all prosecuted in good faith and at no stage the appellant acquiesced in the award. Upon these facts, in the submission of the learned counsel, the writ petition should not have been dismissed on the ground of laches. There is substance in these contentions. It seems to us that the appellant bona fide believed that the remedy sought by it before the forums below was availabe in law. The fact that subsequently this assumption turned out to be incorrect is not material. What is material is that at no stage the appellant accepted the award and acted upon it. Mere delay in approaching the High Court, by itself, is not sufficient for refusing the judicial review. Such a refusal may be called for when the delay is attributable to the petitioner's conduct suggestive of waiver and acquicsence in the order sought to be removed. But, such is not the position here. In these circumstances, we feel that the writ petition could not have been thrown away on the ground of laches. The appellant's success on this point, however, cannot advance its cause, for, on merits the appeal is bound to fail.
For all these reasons we see no lawful basis to interfere with the Collector's award. Accordingly, this appeal is dismissed, but the parties are left to bear their own costs.