ABDUL MAJEED MALLICK, CJ.- Land measuring 4 kanals 10 marlas comprising survey No. 38-min, in the ownership and possession of Mst. Alif Noor and 5 kanals 8 marlas, comprising survey No. 37/600-min, in the ownership and possession of Sain Khan, situate in village Chela Bandi, Tehsil Muzaffarabad, was acquired vide Award No. 40/86 on November 3, 1986. The Collector Land Acquisition fixed the market value of the land @ Rs. 52,000/- per kanal, in addition to 15% compulsory acquisition allowance. The land-owners feeling dissatisfied with the amount of compensation made reference. The learned District Judge accepted the reference of Mst. Alif Noor and enhanced the amount @ Rs. 70,000/- per kanal. The order was passed on December 11, 1991.
The Reference made by Sain Khan was dismissed on September 27,1989. Separate appeals were addressed against both the orders. The Division Bench comprising my learned brothers Mr. Justice M.H. Gilani and Mr. Justice, Riaz Akhtar Chaudhry, consolidated both the appeals and disposed them together. Mr. Justice M.H. Gilani, the learned Judge arrived at the conclusion that the appellants were entitled to compensation of their land @ Rs. 1,62,230/- per kanal. Mr. Justice Riaz Akhtar Chaudhry, the learned Judge, however, was not in agreement with the aforesaid conclusion, as such recorded his difference of opinion. The learned Judge dismissed both the appeals. On account of difference of opinion, the matter has been referred to this Court.
2. The land in dispute was acquired for the Azad Jammu and Kashmir University. Notification under Section 4, Land Acquisition (Housing and Development Schemes) Ordinance, 1984 was issued on June 27, 1984. It was published in the Official Gazette on July 5, 1984. Vide this notification, an area of 95 kanals, 11 marlas was sought to be acquired. The owners of the land made a representation to the Government that the land sought to be acquired was covered by shops and residential houses, as such, the area under the shops and houses may be excluded. The Government agreed to the proposal and excluded such area from acquisition. The amended notification was issued accordingly on December 31, 1984. The market value of the land was assessed by the Collector Land Acquisition, on the basis of previous Award No. 39/86. In that case, the notification under Section 4 was issued on April 20,1986. The market value of the land was fixed Rs. 59,417.98 per kanal.
On the basis of the previous assessment of the market value, the land under consideration was assessed to market value by lowering its compensation by 12%. The market value were, therefore, assessed @ Rs. 52,000/- per kanal.
3. Mst. Alif Noor produced Baddar Zaman, Bashir Ahmed and appeared herself as witness. She produced copies of sale deeds Ext. 'PY' executed by Baddar Zaman in favour of Syed Muzammal Shah, on December 15,1985, sale deed Ext. 'PL; executed by Muhammad Zaman in favour of Muhammad Hussain, on May 20,1980, sale deed Ext. 'PU; executed by Muhammad Zaman in favour of Abdul Rashid Khan, on April 13, 1981', sale deed Ext, 'PT' executed by Raja Saleem Khan on February 16,1984, sale deed, Ext. 'px' executed by Abdul Ghani on January 1, 1986 and sale deed, Ext. 'PW', executed by Jamid Ali on July 7, 1986. Sain Khan, on the other hand, produced Muhammad Zaman, Muhammad Iqbal and Nawab Khan, his attorney. He produced copies of sale deed, Ext. 'PA', executed. By Muhammad Zaman on October 12, 1978, sale deed, Ext. 'PB', executed by Muhammad Iqbal on September I6, 1984. Kh. Abdul Samad, Estate Officer, representing the University- respondent, appeared as a witness in both the cases and produced copies of the previous award of the Collector, Ext. 'DA'.
4. On account of difference of opinion among the learned members of the Bench, this Court is entrusted with the proposition, to find out as to what is the actual market value of the land under acquisition. This, of course, has to be settled in the light of the evidence on record.
5. The Collector Land Acquisition, based his finding, in respect of the mark value of the land, on the previous award No. 39/86, made on April 20, 1986. In that award, the land from village Chela Bandi, was acquired for Health Department. In that case, the market value was assessed on the basis of sale deeds executed on June 15, 1984, September I6, 1984, August l2, 1985, April 7, 1985, January 1, 1986, March I6, 1986 and February 26,1985. In all those cases, land measuring one kanal and few marlas was alienated during those periods. The average price of the land was assessed @ Rs.
59,417.98 per kanal. The Collector Land Acquisition, while assessing the market value of the land under consideration, reduced the market value @ 12% from the market value assessed in the previous award. It was not explained as to how and why 12% of the market value of the land was lowered down. No rationale has been given in the award.
6. In the case of Mst. Alif Noor, the learned District Judge, arrived at the conclusion that the market value of the land, in the light of evidence produced before the Court, was Rs. 100,000/- per kanal.
However, it was deemed expedient to bring down the aforesaid market value to Rs. 70,000/- per kanal. The learned Judge failed to assign any reason for reduction of the amount from Rs.
100,000/- to Rs. 70,000/- per kanal.
7. Mr. Justice M.H. Gilani, the learned Judge relied upon the sale deeds Ext. 'PB', executed on September I6, 1984, Ext. 'PY' executed on December 15, 1985 and sale deeds executed on February 16,1984 and July 7,1986, Ext. 'PW' and 'PD'. On the basis of the aforesaid sale deeds, the market value was assessed @ Rs. 1,62,620/- per kanal. Both the appeals were accepted and the amount of compensation was enhanced accordingly. Conversely, Mr. Justice Muhammad Riaz Akhtar, the learned Judge concurred with the finding of the learned District Judge in both the appeals and recorded his disagreement with his colleague. In view of the learned Judge, the market value of the land was to be assessed, in both cases, on the basis of the sale deeds executed on or before the issuance of notification under Section 4 of the Act. The learned Judges supported their findings by reference to various authorities, including the. Observation of the Supreme Court of Azad Jammu and Kashmir, recorded in Hamid Akhtar's case (PLD 1988 S.C. AJK-6).
The first point sought to be resolved pertained to the period of fixation of the market value. Section 23 of the Land Acquisition Act, postulates that in determining the amount of compensation to be awarded for the land under acquisition, the Court shall take into consideration, among others, firstly, the market value of the land at the date of publication of notification under Section 4(1), L.A.A.
It is undenied that according to the language used by the legislature and its interpretation made from the to the, the consensus is that the market value is to be assessed relevant to the issuance of notification under Section 4, L. A.A. In Hamid Akhtar's case, it was observed at page 9 & 10:- The term "market value" is not defined in the Act. The Select Committee also preferred to leave the term undefined as in its view, "no definition could lay down for universal guidance, in widely divergent conditions of India, any further rule by which that price should be ascertained. The superior Courts of the sub-continent equally preferred to avoid laying down any hard and fast definition. The consensus is that "market value" is an amount of price which an owner, though not obliged to sell, is willing to accept and a vendee, not obliged to purchase, is willing to pay". The term "market value" is used in relative sense as in each case it varies and depends upon variety of factors including shape, locality, tenure and presence of local amenities and modern facilities. It also includes in its fold the potential value of land.
Another important condition which regulates the market value is the the factor. It is provided in section 23(1) that the amount of compensation of land shall be determined, among others, on the basis of the market value of the land at the the of publication of notification under section 4(1). The proximity of the is the essence of this restriction. It signifies that whatever method may be applied to assess compensation, the value of property ascertained thereby must correspond to the material date of notification under section 4. The restriction is obviously a check on speculative, fancy and fictitious prices and boom in the prices of land likely to result in abnormally high amount of compensation."
At page 13 of the same varia, it was further observed that the sale of properly in the vicinity having similarity in advantageous location and its the of transaction, falling nearest to the material date of notification, could not be assailed provided the bonafide and genuineness of the transaction was undisputed. Therefore, post notification transactions could not be ignored necessarily unless such transactions were proved fictitious or otherwise unreliable.
9. In AIR 1959 Madras 162, it was observed:- "It has been held repeatedly that in all valuations, judicial or otherwise, there must be room for inference and inclinations of opinion which being more or less conjectural are difficult to reduce to exact reasoning or to explain to others and it is unfair to require an exact exposition of reasons for the conclusions arrived at. In short, the question of fair compensation is not an algebraic problem which would be solved by an abstract formula. Certain methods of valuation have, however, been recognised by the various judicial decisions viz., (a) the price paid, within a reasonable the for the land (b) rents and profits of the land received shortly before the acquisition; (c) price paid for adjacent lands possessing similar advantages and (d) the opinion of valuators or experts."
In Cerstair's case (1985 CLC 2161). Mr. Justice Tanzil-ur-Rehman who spoke for the Court, construed the rule of Islamic jurisprudence in awarding the compensation for land acquired under the provisions of the Land Acquisition Act, in the following manner:- "-while awarding compensation, the doctrines of 'Adi' and 'Ihsan', as propounded by Islam, is to be adhered to in an Islamic State. Since the field of the subject is occupied by statute, the Court may not have resort to the doctrine of 'Ihsan', but certainly it is bound to do 'adl' though within the framework of the statute, 'Adl' as defined by classical Muslim jurists, is................ The placement of the thing at its place. In this case, our anxiety has been to see that the appellants be put in the same position, as far as possible, in which they would have been if there was no acquisition."
10. It is undenied that the notification under Section 4, Acquisition of Land (Housing and Development Schemes) Ordinance, 1984 was published in the official gazette on July 5, 1984. This was done as initially, the acquisition proceedings were initiated under the Azad Jammu and Kashmir Acquisition of Land (Housing and Development Schemes) Ordinance. Subsequently, the Ordinance lapsed, as such the Collector deemed expedient to carry on the proceedings under the provisions of the Land Acquisition Act. Thus, notifications under Sections 6, 9 and 10 were made under the provisions of the Land Acquisition Act. The provisions relating to assessment of the market value were different under the Azad Jammu and Kashmir Acquisition of Land (Housing and Development Schemes) Ordinance than the provisions of Sections 23 and 24, L.A.A. Be that as it may, the market value in the present case is to be assessed in the light of the provisions of Sections 23 and 24, L.A.A.
11. In Mst. Alif Noor's case, the appellant produced sale deed Ext. 'PB', executed on September I6, 1984. Vide this sale deed, Muhammad Iqbal alienated the land measuring one kanal for a sum of Rs. 100,000/-, in favour of Sher Zaman. The land was situate in village Chela Bandi, in the vicinity of the land in dispute. The sale deed was executed about 4 months after the issuance of notification under Section 4, L.A.A. Raja Saleem Khan alienated land measuring 10 marlas for a sum of Rs.
1,80,000/- including built-up property. The sale deed was executed on February I6, 1984. This sale deed was executed in respect of the site and built-up property, as such it was not of any assistance to assess the market value unless, of course, the value of the built-up area was assessed separately. Rest of the sale deed produced by the appellant pertained to 1985 and to 1986. There was a marginal gap between the issuance of notification under Section 4, L.A.A. And execution of those sale deeds, as such, those sale deeds could not be considered relevant to assess the market a value of the land.
12. In the case of Sain Khan, the appellant produced sale deed executed by Muhammad Iqbal, on September I6,1984. Vide this sale deed, land measuring one kanal was alienated for a sum of Rs.
100,000/-. The other sale deed pertained to the year 1978, as such, it was of no use in the present case. The University- respondent relied upon Award No. 39/86, Ext 'DA'. This award was made the basis by the Collector for the assessment of the market value of the land. No other evidence was led in rebuttal.
13. The only evidence relevant to the period of issuance of notification under Section 4, L.A.A. Is the sale deed executed by Muhammad Iqbal, in favour of Sher Zaman, on September I6, 1984. The land alienated vide this sale deed was situate in village Chels Bandi, in the vicinity of the land under dispute. The price entered in the sale deed, was in the sum of Rs. 10,000/-. A sum of Rs. 90,000/- was admitted to have been received earlier and Rs. 10,000/- at the the of registration of the sale deed. The bonafide of the transaction was not assailed by the respondents. Therefore, despite the fact that the sale deed was executed post notification under Section 4, L.A.A., due to proximity of the and the gap being very close, it was safe to rely on this sale deed. This was more so as no other evidence to assess the correct market value of the land, was available on record. Therefore, keeping in view the principle of justice as enunciated in the aforesaid authorities, it was safe to rely on the sale deed, Ext. 'PB', executed on September I6, 1984.
14. The market value of the land under dispute is, therefore, assessed @ Rs. 100,000/- per kanal, in addition to 15% compulsory acquisition allowance.
15. Here, it may be relevant to state that the area of the acquired land in dispute is not much larger than the land described in the sale deed, made a basis for the assessment of the market value, so as to hold that its value may be less than the value of land entered in the sale deed relied in the present case. The exact area under acquisition has already been described. Therefore, this factor coupled with the factor of the gap between the publication of notification under Section 4, bring to the logical and fair conclusion, described above. For it is generally noticed that in present the, prices of land in cities and suburb, very fastly. This is more so in Azad Jammu and Kashmir and particularly in Muzaffarabad, Mirpur and Kotli. In this view of the position, it is permissible to take into consideration closely post-dated sale deeds of the land in the same vicinity and put to identical use. Therefore, it is reasonable and just to assess the market value on the aforesaid evidence. No other point was canvased in support of the appeals. The reference made by the learned Judges of the Division Bench is, therefore, answered in the aforesaid manner.