' SAJJAD ALI SHAH, J.---In this appeal with leave is challenged judgment dated 19-10-1989 of Division Bench of High Court of Balochistan, Quetta, whereby five Regular First Appeals Nos.27 to 31 of 1988 have been dismissed with costs. Present appeal arises from F.R.A. No,31 of 1988. In the Supreme Court, five petitions were filed for leave to appeal and leave was granted vide common order passed on 30-1-1990, converting the petitions into appeals. Vide judgment dated 11-12-1991, other four appeals have been disposed of as partly allowed. Present appeal was left out on the ground that facts mentioned therein are somewhat different and its hearing was postponed.
Relevant facts in the background are as under.
2. Department of Industries of Government of Balochistan, approached Collector of Lasbella (Respondent No,1 herein) for compulsory acquisition of land in connection with establishment of an industrial estate at Tehsil Hub, District Lasbella. Respondent No,1 issued Notification under section 4 of Land Acquisition Act, 1894 on 3rd September, 1979. As the land was acquired under Emergency Section 17 of the said Act, provisions of sections 5 and 5-A were waived and notices under sections 6(1), 9 and 10 of the said Act were given to the owner. Appellant filed his objections and claimed Rs,60,000 per acre plus other charges, Rs,65,625 as additional diminution of profits and Rs,68,905.79 as statutory allowances. Due to oversight neither notification under section 6 of the said Act nor award was pssse d by the respondent No,1 (Collector), hence on 16th March, 1982, he issued notification under section 6 of the said Act and gave his award on 5th March, 1983, at the rate of Rs,5,000 per acre plus 15% statutory allowances on the cost of the land to the appellant.
3. Being dissatisfied, appellant moved an application under section 18 of the said Act before Collector for reference of his claim to Civil Court for determination of compensation. He claimed Rs,60,000 per acre as compensation with interest and 15% statutory allowance.
4. Apart from appellant, four other parties, whose lands were acquired, had filed objections and they were given compensation by the Collector at the rate of Rs,30,000 per acre and Rs,1,000 per acre as severance allowance and 15% statutory allowance. They also filed references and in such manner five references were pending in the Court of District Judge till 5th July, 1986. References were contested and turned down vide common order dated 5th December, 1988.
5. In the circumstances stated above, five Regular First Appeals were filed in the High Court of Balochistan, which were heard together and disposed of by common judgment, whereby appeals were dismissed and in the, result orders passed for compensation by the Collector stood maintanied. High Court proceeded on the assumption that sale-deeds produced by the appellants in those five appeals were fictitious.
6. Against the judgment of Balochistan High Court, five petitions were filed for grant of leave and vide common order dated 30-1-1990, petitions were allowed and converted into appeals which were registered as Civil Appeals Nos.634-K to 637-K of 1990. Appeal numbered last is the present appeal. Leave is granted for examination of following questions:--
(i) Whether the registered deeds of the period from which five years average was prepared could be excluded for working out market value, confining the valuation to mutations alone?
(ii) What is the effect of High Court's, earlier determination of much larger compensation in some of the cases of the same area?
(iii) Whether the potential value of the property has not been taken into consideration?
7. In the record, finding in the award order dated 5th March, 1983 (page 168 of paper-book) passed by the Collector reads as under:-- "Since the area of land in question was actually acquired in 1979 and the same is surrounded by the other lands acquired for establishment of Industrial Estate in 1979, but unfortunately it was not mentioned in the award order through an oversight, therefore, I fix the same price of this land i,e, Rs,5,000 per acre plus 15% as statutory allowance on total cost of the land acquired which was fixed for the similar lands indicated above vide Award Order No,4920/5/95 Rev. Dated 25th April, 1979."
8. Aggrieved against the award order mentioned above, appellant herein filed application for reference under section 18 of the said Act on the grounds that land acquired is Sikni and its market value was not less than Rs,60,000 per acre as the land lay in an area which was declared industrial area since 1970. Secondly that Collector should have awarded interest. Thirdly, that 15% statutory allowance for compulsory acquisition should be paid on the value as finally determined. There were four other references in which objections were raised by owners of the land so acquired and all these references were heard together. Respondents herein contested references and took the stand that value of land determined by the Collector was according to law and objections were liable to be dismissed. Before District Judge, Khuzdar, it was averred on behalf of appellant that land in question was Sikni when acquired and such Sikni order passed by Collector Exh. P/2 was produced. It was submitted that land was in proposed industrial area since 1970 and map Exh.P/3 was produced. Six sale-deeds and one mutation Exh.P/4 to P/10 were produced in order to show that land in the same area had been sold at much higher price than Rs,5,000 per acre fixed by the Collector. Brochure Exh.P/lkof Hub Industrial Estate was produced showing that in the year 1980, a sum of Rs,2,73,000 without development charges had been entered and further at the time of production of brochure, value of land was 14.5 lass per acre but appellant demanded Rs,60,000 per acre because that was market value as contemplated under section 4(1) of the said Act. Appellant also claimed that his land was smooth and there were no rain Nalas and further that his land was semi-developed and had been taken into possession in the year 1979.
9. Learned District Judge rejected sale-deeds produced by the appellant and objectors in other references in order to show market value of adjacent lands on the ground that they were fictitious and were prepared for the purpose of acquiring higher market value. Learned District Judge further observed that appellant and objectors in other references had failed to show that at the relevant time market value of the land was higher than awarded by the Collector. In the result he rejected all the references.
10. Five regular first appeals filed were dismissed by the High Court of Balochistan with observation that no case is made out for interference with awards passed by the Collector.
11. Mr. S.H. Rizvi, learned counsel for the appellant submitted before us that appeal under consideration is different from remaining appeals for the reason that in this appeal Notification under section 4 of the said Act was issued on 3-9-1979, while in the remaining appeals Notification was issued in 1982. In the present appeal award was given by the Collector on 5-3-1983, hence increase in market value should have been considered. He further submitted that there was inordinate delay in the disposal of reference in the Court of District Judge, where file/record was lost and no enquiry was made. For that delay, appellant is not responsible in any way and he should not be made to suffer on that account. In such circumstances, as mentioned above, reference, which was filed in the Court of learned District Judge in the year 1983, came to be rejected on 5-4-1988. In this background it is to be seen that in the award passed on 5-3-1983, market value should not have been same as was available in the year 1979, but should be much more as there is trend of persistent increase in the market value with passage of time. In this context, our attention has been drawn to the award passed by the Collector (at page 168 of the paper-book) in which no reason is given for fixing the market value as was prevailing in 1979, except that through oversight market value of this case was not fixed in the year 1979. Mr. Rizvi further contended before us that learned District Judge should have considered six sale-deeds Exh.
P/4 to P/6 and P/7 to P/10 produced by the appellant in support of claim that at the relevant time lands in the same vicinity were sold at market value at higher price than fixed by the Collector.
Instead learned District Judge rejected these registered sale-deeds on the short ground that they were executed by relatives and further High Court also agreed with that finding. These sale-deeds are mentioned below:--
(1) Exh.P/4 is deed of conveyance regarding land forming part of Survey No,749/1, Mouza Pathra, Tehsil Hub, sold by Shahbaz Anwar to Hydari Gases Ltd., at Rs,42,500 per acre registered by Sub- Registrar vide Registration No,187 dated 14-6-1979.
(2) Exh.P/5 is deed of conveyance regarding land forming part of Survey No,749/1, Mouza Pathra, Tehsil Hub, sold by Shahbaz Anwar to Hydari Gases Ltd., at Rs,42,500 per acre registered by Sub- Registrar vide Registration No,188 dated 14-6-1979.
(3) Exh.P/6 is deed of conveyance regarding land forming part of Survey No,747, Mouza Pathra, Tehsil Flub, sold by Shahbaz Anwar to Rajab Ali, Hashmat Ali, Talib Ali and Mazhar Ali @ Rs,44,320 per acre registered by Sub-Registrar Hub, vide Registration No, 3 dated 15-7-1979.
(4) Exh.P/7 is mutation as per Report No,17 dated 16-9-1979, showing land admeasuring 2 acres sold for Rs,1,00,000 by Abdul Razzaq son of Tayyeb to Pakistan Agro Products Limited.
(5) Exh.P/8 is conveyance deed regarding land forming part of Survey No,891, Mouza Pathra, Tehsil Hub, sold by Alexander John Pinto to Crescent Golden Fibre Industries Ltd. At Rs,48,000 per acre registered by Sub-Ristrar Hub vide Resgistration No, 20-10-1979.
(6) Exh.P/9 is deed of conveyance regarding land forming part of Survey Nos.746 and 747, Mouza Pathra, Tehsil Hub, sold by Shahbaz Anwar to Paruma Industries Ltd. At Rs,1,00,000 per acre registered by Sub-Registrar Hub, vide Registration No,479 dated 21-5-1980.
(7) Exh.P/10 is deed of conveyance regarding land forming part of Survey Nos.745 and 747 (measuring 1-0-12), Mouza Pathra, Tehsil Hub, sold by Shahbaz Anwar to Manzoor Ellahi son of late Ehsan Ellahi, for consideration of Rs,1,07,500 registered by Sub-Registrar Hub, vide Registration No,480 dated 21-5-1980.
12. Appellant examined his father and attorney Allay Niaz Rizvi (page 84 of paper-book), who produced documents mentioned above. He stated that when land in question was acquired from him it was Sikni and since 1970 was included in the proposed industrial area. In view of documents produced by him, which are mentioned above, he demanded Rs,60,000 per acre as compensation.
He also claimed that his land was semi-developed and there was no rain Nala in it. He was cross- examined by District Attorney on behalf of Collector. He admitted that copies of sale-deeds produced by him related to period from 14-6-1979 to 21-5-1980 and lands mentioned in them were at a distance of one mile from Highway. Mouza Pathra spread up to 10/11 miles from Highway. He denied that those sale-deeds were used in land acquisition cases. He admitted having purchased the land in question on 25-3-1973 for Rs,1,000 and he ploughed the land. He further stated that even before he purchased the land, there was cultivation. He admitted that on account of industrial estate, price of the land is increased. He admitted that in the year 1979, lands of several persons were acquired from which five persons applied for increase in the amount of compensation and he is attorney of those five persons. In the whole cross-examination, no challenge is made to the sale- deeds on the ground that they were executed between the parties who are related inter se. There is only one question which is answered by the Attorney in which it is admitted by him that he is attorney of all those five persons who have demanded higher rate of compensation. We are, therefore, of the view that there was no justification for rejecting the sale-deeds on the short ground that they were fictitious documents as they were executed by the parties who are related inter se.
13. We have seen these documents and also have gone through the evidence produced by the parties and brought on the record. These documents are seven from which six are sale-deeds and one Exh.P/7 is mutation. Exhs.P/4, P/5 and P/6 are sale-deeds from which first two are dated 14-6- 1979 and third is dated 5-7-1979 and are in close proximity with date of notification which is 3-9- 1979 issued under section 4 of the said Act. From remaining three sale-deeds Exh.P/8 is dated 20- 10-1979 while Exhs.P/9 and P/10 are dated 21-5-1980 which are after the issue of notification in this case. From three sale-deeds two were executed in the month of June, 1979 and third in the month of July, 1979, which was hardly 3 and 2 months respectively before notification about which appellant could have knowledge that it was coming. Similarly, three other sale-deeds are after the issue of notification and from them, in five Allay Niaz Rizvi, father of appellant, is himself attorney on behalf of vendors. Abovementioned sale-deeds are to be read in the light of documents and material produced by the respondents herein. Respondents have examined three witnesses and from them, statement of P.W.1 Abdul Sattar Patwari was treated as statement of witness on behalf of appellant at his own request. P.W.1 Abdul Sattar stated that he was Patwari of the area and land acquired in this case was situate 1-1/2 miles away in East from the main road. When the lands were acquired for Industries Department in the year 1979, the rate was from Rs,2,000 to Rs,5,000 per acre.
14. P.W. Abdul Sattar produced Mutation No,409 dated 20-12-1978 as Exh.D/1, showing father of appellant having sold 200 acres of land at the rate of Rs,2,000 per acre. He produced Mutation Entry No,429 dated 15-2-1979, showing sale of about 27 acres at the rate of Rs,5,000 per acre by Nasima, Wahida to Muhammad Ashraf. He produced Mutation Entry No,432 dated 14-3-1979 Exh.
D/3 showing one acre sold for Rs,1,500. He produced Mutation. Entry No,88 dated 13-1-1980 showing sale of about 4 acres at the rate of Rs,5,000 in the case in the Court between Muhammad Ali Singu v. Sadiq Niaz Rizvi. He produced another Mutation Entry No,626 dated 16-8-1981 showing sale of land of about 19 acres at the rate of Rs,3,750 per acre in a case entitled Dost Muhammad v. Inayat Ali, Advocate. He produced Mutation Entry No,661 dated 15-11-1981 showing sale of land of two acres at the rate of Rs,5,000 per acre. He also produced other Mutation Entries Exhs.D/6 and D/7 showing sale of land at the rate of Rs,1,000 par acre. All the mutations stated above, pertain to Mouza Pathra, Tehsil Hub.
15. P.W.2 Muhammad Ali Shaheen, representative of Industries Department, when examined stated that Department requested for acquisition of land in the year 1979 to set up industries and in the award lands of 113 persons were acquired. He produced list of 113 persons Exh.D/24, showing that with the exception of few, all the remaining persons accepted compensation. Jam Mir Ghulam Qadir also accepted compensation at the rate of Rs,5,000 per acre. Industries Department had acquired the land for construction of roads. P.W.3 Abdul Majeed Patwari, representative of Collector, Lasbella, stated that by award dated 4-5-1982, land comprising 23-326 acres situate in Mouza Pathra (in other four cases) was acquired at the rate of Rs,31,000 plus 15% which was correct and reasonable for the reason that the land so acquired was in-between Highway, Lasbella Canal and Industries.
16. From the evidence commented upon above, it has become crystal clear that Mouza Pathra is spread up to 10 to 11 miles from the Highway and it is not necessary that land situate at the tail-end of 12th mile from Highway would fetch the same price as land within one mile from Highway just for the reason that Mouza is same. Crucial point to be decided is as to where the land in question which is acquired is situated for the purpose of valuation. Compensation for lands acquired in the same Mouza (Civil Appeals Nos.634-K to 637-K of 1990) was fixed at Rs,30,000 per acre for the reason that lands acquired came within 3/4 of a mile from R.C.D. Highway. In the instant case, land acquired is not situate within the range of 3/4 of a mile but is 1-1/2 miles away from R.C.D. Highway, hence cannot be treated as land of that category entitled to that compensation.
17. In any case appellant in his evidence has failed to prove that land acquired in this case is equated with land for which higher compensation was paid as mentioned above. On the contrary evidence discussed above produced by the parties is clearly indicative of the fact that land was acquired in this case in 1979, which is similar to lands acquired in cases (Civil Appeals Nos. 700-K to 708-K of 1990) in which Award No,492/5/95/Rev. Was passed on 25-4-1979 and inadvertently this case was left out and subsequently award was passed on 5th March, 1983.
18. It is submitted by Mr. Rizvi on behalf of the appellant that since the land was acquired in the year 1979, but award was passed in the year 1983, hence market value should not have been set to be same as in 1979 for the reason that with the passage, of time, there was increase in the market value. In support, reliance is placed by him upon the case of Sardar Abdur Rauf Khan and others v.
The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCM R 2164. In the reported case there is discussion on the interpretation of section 23 of Land Acquisition Act, 1894, which relates to the determination of compensation. Case-law on the subject has been discussed and in the light of case-law, principles have been enunciated which are mentioned as under:-- "(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 the notification under section 4(1) of the 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."
19. Mr. Rizvi has further submitted that land in question in this case is acquired for industrial estate which is being set up near Highway and on that account its potentiality and future prospects are to be considered in line and principles laid down in the case of Market Committee, Kanganpur v.
Rayyat All and others 1991 SCM R 572. We have already done so in similar cases of same category in which similar award was passed on 25-44979 in Civil Appeals Nos.700-K to 708-K of 1990 (9 appeals) in which price per acre by Rs,2,000 has been increased with interest and 15% acquisition charges. We pass the same order in this appeal, which is allowed to the extent that price is increased by Rs,2,000 per acre with interest and 15% acquisition charges.
20. For facts and reasons stated above, appeal is allowed to the extent and in the manner stated above with no order as to costs.