' KHAWAJA MUHAMMAD SAEED, J.---This order will dispose of the above-noted two appeals, as they are directed against the same order passed by the District Judge, Muzaffarabad on 5th of October, 1991 and raise a common question of law and facts.
2. The facts giving rise to the present appeals shortly stated are that land measuring 100 Kanals situate in village Domel Syedan and Norol Tehsil and District Muzaffarabad was acquired by the Government for the construction of Stadium under the provisions of Land Acquisition Act (hereinafter to be called the Act) for which purpose a Notification under Section 4 of the Act, was issued on July 12, 1986. Later on this Notification was followed by two further Notifications issued under Sections 6 and 17 of the said Act on 29th of August 1986 whereby the possession of the land was taken from the owners prior to the completion of the proceedings under the Act. In the meantime, the Collector, Land Acquisition, Muzaffarabad issued two notices under Sections 9 and 10 of the Act to the owners of the land on 28th of October 1986. In response to the said notices they filed their objections wherein they firstly prayed that their land may not be acquired. Alternatively, they pleaded that they may be allowed compensation amount at the rate of Rs,2,00,000 ptr Kanal.
However, the Collector, Land Acquisition declared the appellants entitled to get the compensation amount at the rate of Rs,60,000 per Kanal, vide award dated June 28, 1987. Feeling dissatisfied with the aforesaid award, the contesting appellants moved an application before the Collector, Land Acquisition praying for a reference to the District Judge, Muzaffarabad. Consequently, reference was made to the District Judge, Muzaffarabad, who vide judgment under appeal, modified the award and enhanced the amount of compensation from Rs,60,000 to Rs,87,000 per Kanal. The appellants feeling aggrieved have filed appeals to this Court whereby the respondent-Government and the Director Sports on whose initiation, the proceedings under the Act, were taken, have also filed separate appeal against the above-referred order of the District Judge, Muzaffarabad. As common questions of law and fact are involved in both the appeals and further they are the outcome of the proceedings which were taken for acquiring the land on public expenses and for public purpose, namely, for the construction of Stadium, it appears proper to dispose them of through this single order.
3. We have heard the learned counsel for the parties and have perused the record of the case.
4. Before deciding the appeals on merits, it will not be out of place to mention here that Civil Appeal No, 2 of 1992 has been preferred by Azad Jammu and Kashmir Government and by Director, Sports of Azad Jammu and Kashmir Government. Director, Sports on whose initiation the land in dispute was acquired, has got no right to prefer the appeal against the decision of the learned District Judge, Muzaffarabad. No doubt, he had a right to produce evidence before the Collector, Land Acquisition for the determination of fair price but the law has denied him the right to ask for a reference to the District Judge or file an appeal against the order of the District Judge. The proposition came up for consideration recently, before the Division Bench of Punjab High Court Lahore, in a case reported as "Province of Punjab, Lahore and another v. Shah Rasool and 30 others"
1992 CLC 67. After discussing the pre-partition and after partition authorities from India and Pakistan jurisdiction, on the subject, the view taken by the Pakistan Supreme Court in a case titled "Pir Khan v. Military Estate Officer" PLD 1987 SC (Pak.) 485 was followed. The Supreme Court in this case has observed as under:- "From a perusal of the above provisions, it is manifest that section 50(2) expressly and in terms controls section 18 and takes away the right from the local authority or company for whom the land is being acquired to demand a reference under Section 18. According to subsection (2) of section 50 a local authority or a company is only conferred the right to appear in proceedings before the Collector or the Court and adduce evidence for the purpose of determining the amount of compensation but a reference under Section 18 by them is barred (vide the proviso to subsection (2) of section 50). It is, therefore, manifest that whatever may have been the object of the law, in view of plain language of section 50(2), there is no alternative but to give effect to it.
Hence, so far as an authority or a company is concerned, the award by the Land Acquisition Collector becomes final; it has neither the right to ask for a reference under Section 18, nor on a parity of reasoning, a right to prefer an appeal against decision made upon a reference under section 18 of the Act by the Court."
5.
In the light of the abovementioned cases, it is clear that company or the local authority on whose initiation the land was acquired, is not entitled to ask for a reference under section 18 of the Act, nor has it a right to prefer an appeal against the decision of the District Judge made upon a reference.
In this view of the matter, the appeal filed by the Azad Jummu and Kashmir Government and Director Sports to the extent of Director Sports is dismissed as being incompetent.
6. However, Appeal No,2 of 1992, has been competently filed by the Azad Kashmir Government, because the interest of local authority for whose benefit the land is acquired, is considered and taken as subservient to the Government in land acquisition proceedings. In this connection, reference may be made to the cases titled "Collector and Chairman, District Board, Gujranwala v.
Hira Nand" AIR 1929 Lahore 10 and "Kasimbhai and another v. The Deputy Commissioner, Dadu and others" PLD 1968 Kar.
126. The scheme of the Act contemplates, even, that the Government represented by the Collector would sufficiently even safeguard the interest of the local authority, for whose benefit, the land is acquired and further that such local authority may seek redress of any grievances, through Collector. As said earlier the Government has got right to make a reference to a Court and definitely has right to come in appeal against the order of the Court upon the reference.
7. We have heard the learned Counsel for the parties in support of their respective appeals and have also perused the entire record of the case very carefully.
8. The learned Counsel for the claimant-appellants Sardar Rafique Mahmood Khan, argued that the land in dispute is situated in the heart of Muzaffarabad city. The market price of the land was not less than rupees two lacs per Kanal. But without taking into account the oral evidence led by the appellants, the learned District Judge observed that in the light of the evidence of the claimant-appellants, the market value of the land was Rs,1,14,000 per Kanal. But despite these observations, he awarded compensation at the rate of Rs,88,000 per Kanal. He further argued that it was the duty of the Government-respondent to prove fair compensation that was payable to the claimant-appellants. But the Government-respondent has failed to discharge the burden of proof in this regard as only Director Sports appeared on behalf of the respondent and made self- contradictory statement.
9. While controverting the arguments of the learned Counsel for the appellants, the learned Advocate-General, Mr. Sardar Khan, vehemently argued that under the Land Acquisition Act, it is always the duty of the claimant-appellant to prove that the compensation given in the award was insufficient. He further emphasized that claimant-appellants have failed to prove that less compensation was awarded to them by the Collector, Land Acquisition. He further argued that sale-deeds which have been produced by the claimant-appellants relate to the very small portions of the land for the purpose of raising construction of residential buildings.
10. Under the Land Acquisition Act, the offer of the Collector prevails unless the claimant-appellants before the District Judge, can prove by leading cogent evidence that the offer was inadequate. The burden of proof under the Act, is upon the owners claiming more compensation than the amount of Collector's award. If the owners-claimants are not satisfied with the award and move for a reference of the case to the concerned Civil Court, that means that they have taken burden of proof on their own shoulders to prove that amount of compensation recorded in the award was inadequate. This view finds support from PLD 1960 Lah. 469 wherein a similar proposition was resolved in the following words:-- "When a reference under section 18 of the Land Acquisition Act comes to Court and the owner claims more compensation than that allowed by the Collector he has to establish that the award given by the Collector does not fix the market-value correctly. The best method of fixing the market-value is to find what a willing purchaser would pay to a willing seller."
11. The same proposition was confirmed by the Peshawar igh Court in a case reported as PLD 1976 Pesh.
50.
12. The above survey of case-law brings us to the conclusion that burden of proof is always on the owners of the land claiming the compensation in higher amount than that determined by the Collector in his award. However, the Government as well as any other department or local authority for whose benefit the land is being acquired, has a right alongwith the claimants to produce the evidence to prove the fair compensation that is payable to the claimants.
13. In determining the amount of compensation, in case of compulsory acquisition under the Land Acquisition Act, the Court is to take into consideration the market value of the land on the date of the publication of the Notification under section 4 of the Act. In this regard, it has been repeatedly laid down that the compensation must be determined by reference to the price which a willing vendor may reasonably expect to obtain from a willing purchaser. Values of the land vary from time to time. Certain events considerably change the value of the land. In the present case, in the light of the above discussion, the dispute relates between the parties about the market value of the land in dispute on 12th of July, 1986 when the Notification under section 4 of the Act was issued.
14. While assessing the fair compensation in the respect of agricultural land, the fictitious sale- deeds which are often executed in respect of small portions of land with the purpose to obtain compensation at higher rates, are usually ignored. But in the city like Muzaffarabad which is always found short of land, the land is purchased either for residential purposes or for commercial purposes. For either of these purposes, the small portion of land is purchased by desired persons keeping in view their needs and their financial position. In this view of the matter, the sale-deeds pertaining to the small portions of land are to be taken into consideration while assessing the market value of the land.
15. Before discussing the evidence it seems to be important to mention here that Muzaffarabad city is situated on the banks of two rivers, namely, Neelum and Jhelum. This city is covered by hills of different heights. On account of its importance, as being capital of Azad Kashmir, the city is always found short of land. The land Which has been acquired for the construction of Stadium being plain, could be presumed as God's Gift as a plain land to this magnitude is hardly available on hilly stations like Muzaffarabad city. The land in question is adjacent to Noral area which is the most prestigeous of Muzaffarabad city as there stands constructed the Prime Minister and President's Houses and residential colony for the high-ups of the Azad Jammu and Kashmir Government. In this view of the matter, while discussing the evidence led in this case, the above-mentioned features would have to be taken into consideration. The claimants-appellants besides oral evidence have produced documentary evidence, whereas only the Director Sports appeared on behalf of the respondents and got his statement recorded. In civil matters E when a party has adduced its evidence to discharge burden of proof then it is for the other party to lead evidence in rebuttal. In the present case, only Director Sports appeared for the respondents and no material evidence was given by him. In this view of the matter, the evidence led by the appellants in determining the amount of compensation on the date of publiCation of the Notification under section 4 of the Act is to be accepted as correct. This view finds support from PLD 1980 Lah. 145 wherein at page 151 it has been observed as under:--- "The onus of an issue in a civil case is not permanently fixed but is constantly shifting, the moment some evidence is placed on record, this shifts the onus on the other side who would fail if he is unable to rebut."
16. We are aware of the sale-deeds which have been placed on the file wherein a very small portion of land was transferred through sale-deeds. We are also alive of the fact that only those sale-deeds could be taken into consideration while assessing the market-value of the land in dispute which were executed during the period when the Notification under section 4 of the Act, was issued. Exh. PB is a sale-deed which was executed on 1st of January, 1986 whereby land measuring one Kanal was transferred for a consideration of Rs,1,00,000. Exh.PF is another sale-deed which was executed on 7th of July, 1986 with regard to the land measuring one Kanal one Marla, one Sarsai and 18 feet for a consideration of Rs,1,78,100. There are some other sale-deeds too, but those either pertain to the year 1985 or 1988. The District Judge after discussing these sale-deeds in his order observed as under:--- {{URDU TEXT}} ' but contrary to his finding has assessed the price of the disputed land arbitrary at Rs,87,000 per Kanal by observing that:-- {{URDU TEXT}}
17. In this background of facts, we fully agree with the learned counsel for the appellants, Shah Zaman and others, that the market value of the disputed land is not less than Rs,1,00,000 per Kanal at any cost. The District Judge should have ascertained the price on the basis of the proof which was brought on the file by the parties but he has wrongly relied on the entries of the award of Collector Land Acquisition without formal proof of the entries recorded therein, while determining the market-price of the land in question at the rate of Rs,87,000 per Kanal. Therefore, while accepting the Appeal No,50 of 1991 of the land owners, the award is modified and the amount of compensation is enhanced from Rs,87,000 to Rs,1,00,000 per Kanal.
18. In the light of what has been stated above, finding no force in the appeal of the Azad Kashmir Government, it is hereby dismissed with no order as to costs.