1. ' GHULAM SAFDAR SHAH, C. J.-These two appeals, in which the questions of law and facts are the same, have been brought to this Court, under the Land Acquisition Act, 1894 (hereinafter called the Act), jointly by Land Acquisition Collector Hazara WAPDA and Government, N.-W. F. P. Against the same judgment of Addl. District Judge Hazara dated 28-6-74. The grievance made therein is that the learned Addl. District Judge has upset the award of Collector entirely illegally and thereby awarded to respondents excessive compensation to which they were not entitled.
2. ' The background of the case is that on 30-4-68, the Land Acquisition Collector Hazara published under section 4 of the Act a notification that 23985 kanals and 1 marla of land of village Kia, Tehsil Haripur was intended to be acquired for the purpose of Tarbela Dam Project. In consequence of this notification and after having completed the requirements of sections 5-11 of the Act, the Collector delivered his award on 12-9-72 awarding to respondents, by way of compensation, the following amounts:- Rs.
3. Chahi, Abbi2,500 per kanal Bari 1,250 per kanal Maira 625 per kanal Rakkar-Kalsi416 per kanal Banjar 208 per kanal Ghairmumkin104 per kanal Abadi 1,250 per kanal ' It seems that respondents were not satisfied with this award. And in order to vindicate their claim for higher compensation, they filed before Collector an application under section 18 of the Actpraying therein to refer the matter to the Court of District Judge. The record would show that this application was allowed by Collector and accordingly he referred the case to Addl. District Judge who, in view of evidence brought before him by parties, disagreed with the award and instead awarded to respondents enhanced compensation as under- Rs.
4. Abbi, Abadi and Chahi5,000 Per Kanal Bari 2,500 Per Kanal Kund and Maira 1,250 Per Kanal Rakkar and Katsi 834 Per Kanal Banjar, Bana, Dakha Rakh417 Per Kanal Ghairmumkin 209 Per Kanal ' We have heard Maulvi Sirajul Haq, the learned counsel for appellants and Mr. Fida Muhammad Khan, the learned counsel for respondents. Mr. Fida Muhammad has raised two-fold preliminary objections to the competency of these appeals. He argued (1) that WAPDA would have no locus standi to come in appeal against the award of District Judge and (2) that the appeal of Government, N -W. F. P. Would be incompetent. He pointed out that the Government had neither applied for a certified copy of the award of Additional District Judge nor had obtained a copy of it in its own right and therefore it must be held not to be an appellant in these proceedings in which, taking advantage of a certified copy obtained by Collector, it has simply joined as co-appellant.
5. ' Now as regards the first objection, it is supported by a Division Bench's judgment of this Court in the case of WAPDA through its Chairman B Lahore v. Aurangzeb Khan and 17 others (1). And to this Maulvi Sirajul Haq, the learned counsel, therefore, conceded. This leaves us with the second objection of learned counsel which is based on section 12 of the Limitation Act. In order to appreciate this contention, this section may be reproduced : - "In computing the period of limitation prescribed for an appeal the time requisite for obtaining a copy of the decree appealed from or sought to be reviewed, shall be excluded."
6. ' There is nothing in this section to show that in order to be able to exclude the time requisite for obtaining a copy of the decree appealed from, the appellant himself should have been applicant in that behalf. In C fact, all that this section says is that the time taken for the copy has to be excluded. This being the clear connotation of this section, we asked Mr. Fida Muhammad Khan if he would be able to support his objection by any reason or case-law. But he was unable to do so. On the other hand, Maulvi Sirajul Haq has brought to or notice quite a few judgments out of which it would suffice to refer to two judgments: Chandu v. Mast Ram (2) and Mst. Majidan v. Dalmir Khan and another (3). In the first mentioned case, a similar objection to the maintainability of appeal was taken before Lahore High Court. But Bhide, J., replying on the judgments of Allahabad and Madras High Courts, rejected it. In the second mentioned case, the {{FOOT NOTE}}
(1) PLD 1975 Pesh. 1 (2) AIR 1934 Labs 135
(3) AIR 1951 Pb. 388 {{FOOT NOTE}} ' same view was taken by Punjab High Court. And it would be proper to reproduce from it the following dictum "There is nothing in section 12 which limits the period to that time alone which is taken by the appellant himself in obtaining such a copy. The time which can be excluded is the time taken for the copy which is filed. As a matter of fact, when I was at the Bar I used to notice that copies were always supplied for by or clerks. The appeals were neither signed by the advocates or pleaders or the clients, and to my knowledge such an objection was never raised that the copy has not been applied for by the client himself or his authorised agent. In Chandu v. Mast Ram, Bhide, J., held that the application for copies need not be made by the appellants in person and the same was held in Ram Kishun v. Kashi Bai and Aminuddin Sahib v. Pyari Bi. In the latter case a Division Bench of the Madras High Court held that an appellant who is required to file with his memorandum of appeal a copy of the decree D appealed from, may file a copy obtained by another party ; and under section 12(2), Limitation Act, he is entitled to a deduction o time taken to obtain that copy."
7. ' On or part, we respectfully agree with the principle laid down in these cases. We, therefore, reject the preliminary objections of learned counsel for respondents.
8. ' As to the merit of the case, the learned counsel for parties have confined their arguments only to the quantum of compensation. The grievance of Moulvi Sirajul Haq is that whereas the Collector had, keeping in view the requirements of sections 23 and 24 of the Act, awarded to respondent the correct compensation at the market rate, the learned Addl. District Judge doubled that amount without any legal justification. In support of his contention, he has taken us through the two awards, the evidence on record and the various provisions of the Act, and we find that his contention is not without substance. The award of Collector would show that the land of village Kia is said to be very fertile and the best kind of land of all lands acquired for the purpose of Tarbela Dam Project.
9. Proceeding on this basis, he observed that according to the decision reached in a presidential meeting held on 3-5-67 at Peshawar, the market value of the land was to be assessed on one year's average of sale-transactions preceding the date of notification under section 4 of the Act.
10. On this basis and on the basis of the ratio of parta bandubasti he calculated the market price of the land as under :- Rs.
11. Chahi 3,912 Per Kanal Bari 1,956 Per Kanal Maira 978 Per Kanal Rukkar-Kalsi 652 Per Kanal Banjar 326 Per Kanal Digar Ghairmumkin163 Per Kanal Abadi 1,956 Per Kanal Having reached this conclusion, however, he proceeded to consider the effect of an earlier award dated 17-11-71 in regard to similar kind of land of the adjacent village Khabal, for it is situated in the same assessm ent circle of village Kia and the section 4 notification in regard to both was published on 30-4-68. Now according to the award of village Khabal, the market price per Kanal of Chahi kind of land wa3 calculated at Rs. 1,840. But the ratio of parta bandubasti of both these villages was different: Rs. 1.83 per acre for Khabal and Rs. 3.14 per acre for Kia. On this basis, therefore, he calculated the market price of the land in this case as under:- Rs.
12. Chahi 3,157 Per Kanal Bari 1,578 Per Kanal Maira 789 Per Kanal Rukkar-Kalsi 526 Per Kanal Banjar 263 Per Kanal Digar Ghairmumkin132 Per Kanal Abadi 1,578 Per Kanal It seems that the Collector considered these rates rather excessive. He, therefore, proceeded to assess the market-value of the land on the average of 5 years' sale transaction preceding the date of notification under section 4 of the Act. During this period, 21 mutations of Chahi kind of land are said to have been attested. But even so, the Department had ignored 7 of these mutations and accordingly proposed the assessm ent of market-value of land as under:- Rs.
13. Chahi 1,838 Per Kanal Bari 919 Per Kanal Maira 460 Per Kanal Rukkar-Kalsi 303 Per Kanal Banjar 152 Per Kanal Digar Ghairmumkin76 Per Kanal Abadi 1149 Per Kanal The learned Collector, however, did not agree with the Department. He seems to have rightly come to the conclusion that except for muta--tion No. 263 through which the land had been sold by one real brother to another, the other six mutations could not be ignored by the Department simply because the land thereunder had been sold at higher rates or else in some of them (mutations Nos. 937 and 273) the value of wells was also included. Having reached this conclusion and ignoring another muta--tion No. 255 attested on 20-4-67 by which 4 kanals 4 rnarlas of Makhloot kind of land was sold for Rs. 800, he proceeded to assess on the basis of these 20 mutations the market-value of the land as under :- Rs.
14. Chahi 2,872 Per Kanal Bari 1,436 Per Kanal Maira 718 Per Kanal Rukkar-Kalsi478 Per Kanal Banjar 239 Per Kanal Ghairmumkin120 Per Kanal Abadi 1,436 Per Kanal His award would, however, show that despite the care and pain taken by him in reaching this conclusion, he discarded these rates without any reason saying that they seem to be excessive, whereas the rates proposed by the Department were on the lower side. He therefore, concluded that:- ". . . . . I ignore both these assessm ents and fix the rate of Chahi kind of land as Rs. 2,500 which in my opinion is the fair market --value of the Chahi kind of land, and the value of other kinds of land is worked out at the ratio of parta bandubasti and in this way I fix the follow--ing rates of other kinds of land:- Rs.
15. Chahi 2,500 per Kanal Bari 1,250 per Kanal Maira 625 per Kanal Rukkar-Kalsi416 per Kanal Banjar 208 per Kanal Ghairmumkin104 per Kanal Abadi 1,250 per Kanal ' We are inclined to agree with the learned Addl. District Judge that in regard to this part of his reasoning the learned Collector was not right. Having assessed the market-value of the land on the basis of 20 sale mutations attested during the antecedent period of 5 years it was not open to him to abandon his own calculation without any reason whatever. The difficulty, however, is that the learned Addl. District Judge has awarded to respondents compensation at double the rates than what was awarded to them by Collector relying only on the average of one year of mutations attested between 1-5-67 to 30-4.68. He was of the view that since in the presidential meeting held at Peshawar on 3-5-67, it was decided that the market-value of land would be assessed on the basis of one year's average, the Collector would have no option but to follow that decision. But in this respect, he seems to have been mistaken. It is common knowledge, of which we take judicial notice, that in regard to whatever land was intended to be acquired for Tarbela Dam Project, two notifications were published under section 4 of the Act on 3-5-67 and 30-4-68. Assuming for a moment that the Collector was bound to follow the decision reached in the said presidential meeting, he would still be required to apply his own mind to each and every mutation recorded within the period 1-5-67 to 30.4-68 in order to ensure that the however, is that the bulk of these mutations were recorded after the publication of first notification under section 4 of the Act on 3-5- 67 when people in the area had already known that their lands were likely to acquired, and consequently it was the burden of, respondents to prove that the transactions recorded therein were bona fide. It is true that their witness, namely Muhammad Sarfaraz (OW-1), did produce in his evidence goshwara (Exh. CW1/1), in which sale-mutations are recorded for the period 1-5-67 to 30- 4-68. But none of the parties to these transactions was produced to show as to why the land there had changed hands for abnormally high prices. Not only this but in regard to their claim that by leaving some of their lands uracquired and not compensating them for the loss of tax, which they used to receive on account of floating timber, the Collector had evidently assessed their compensation at lower rates, they did not bring any evidence before the Addl. District Judge. In this respect, respondents had produced only one witness, namely, Dadu Khan (OW 2). But in cross- examination, he was unable to prove the claim of respondents. In fact, in regard to their claim of yearly income by way of floating timber, all that he was able to say was that the account in that respect was maintained by the lambardar of the village. But neither the lambardar was produced nor were the account books brought forth in evidence.
16. ' The principles for the determination of market-value of acquired land as contained in section 23 of the Act which are as follows :- "23. Matters to be considered in determining compensation.-In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration first, the market value of the land at the date of the publication of the notification under section 4, subsection (1).
17. 'Explanation.-For the purpose of determining the market value, the Court shall take into account transfer of land similarly situated and in similar use The potential-value of the land to be acquired if put to a different use shall only be taken into consideration if it is proved that land similarly situated and previously in similar use has, before the date of the notification under subsection (1) of section 4, been transferred with a view to being put to the use relied upon as affecting petential value of the land to be acquired : ' Provided that-
(i) If the market value has been increased in consequence of the land being put to a use which is unlawful or contrary to public policy that use shall be disregarded and the market-value shall be deemed to be the market-value of the land if it were put to ordinary use ; and
(ti) if the market-value of the building has been increased in consequenc; of any building being so over-crowded as to be dangerous to the health of the inmates, such overcrowding shall be disregarded and the market-value shall be deemed to be the market-value of the building if occupied by such number of persons only as can be accommodated in it without risk of danger to health from over-crowding ; ' Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof ; ' Thirdly, the damage, if any, sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land : ' Fourthly, the damage if any, sustained by the person interested at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earning : ' Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change ; and ' Sixthly, the damage, if any, bona fide resulting from diminuation of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
2. In addition to the market value of the land as above provided the Court shall award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition, if the acquisition has been made for a public purpose and a sum of twenty-five per centum on such market value if the acquisition has been made for a company."
18. ' There is nothing in the evidence of respondents to prove that they had suffered any damages under clauses secondly, thirdly and fourthly, nor indeed have they proved anything under clause fifthly to show that in consequence of the acquisition of their land, they have been compelled to change their residences for which they should have been allowed reasonable expenses. In regard to clause sixthly also, they have not complained. And thus we are left with the first clause which deals with the assessm ent of the market-value of their land for which the prescribed date is the date of publication of notification under section 4 of the Act.
19. ' Now Exh. OW-1/1 would seemingly appear to furnish the type of evidence required by the first clause (ibid). But this is not the case. It is well-settled that the burden to prove their entitlement for higher compensation was on respondents. But they have not discharged this burden. The mere adduction of 0. W. 1/1 in evidence was entirely insufficient. It was the p burden of respondents to examine some of the parties to the sale-transactions recorded therein. But admittedly they chose not to do so. And the presumption would, therefore, be that had they summoned some of the parties to these transactions, they would not have supported their case. Raja Muhammad Muzaffar has, at page 119 of his Commentary on the Act, referred to various judgments as to how market value has to be assumed and this is what he has said in this connection :- "Method of determining market-value.-Thebasis for determination of the market value of land' within section 23(I)(i) of the L. A. Act is the value of the land to the owner. But the value to the owner must be judged by an objective and not a subjective standard. Ordinarily, the objective standard would be the price that an owner willing and obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the declaration but its potential value must be taken into consideration excluding any advantage due to the carrying out of the scheme for which the land is compulsorily acquired. The value of the land to the owner may also be determined by capitalizing the rent. The rent which the owner was actually receiving at the relevant point of time may be taken to be the amount of annual rent to be capitalized; but such rent is not conclusive on the point. Any other figure which the Court may consider to be fair rent for the land in question may be taken to be such amount. If the land is likely to continue to produce the same rent which is being paid for it, that rent does offer the basis on which the value is to be capitalized. It is necessary that one should be certain that the rent is likely to continue undiminished. One of the tests would be whether the rent that is being paid is a fair local rate at the time and not a fancy rent (48 C W N 609). The methods of valuation may be; (1) opinion of exports, (ii), the price paid within a reasonable time in bona fide transaction of purchase of the land acquired or the lands adjacent to the lands acquired and possessing similar advantages, and (iii) a number of years of the actual or immediately prospective profits of the land acquired (1959 SC 429; See also 1954 Mys. 713,1959' Mad. 462). It is generally necessary to take two or all of these methods in order to arrive at a fairly correct valuation. Exact valuation is practically impossible, the approximate market-value is all that can be arrived at (11 C W N 875, 1933 757; 145 Ind. Cas. 795, 22 Ind. Case 78)."
20. ' It would be seen that from the various methods suggested in this passage, the prices paid within a reasonable time for similar kind of land, adjacent to the land acquired, has to be taken into consideration, provided the transaction is bona fide. Enough has been said by us that none of the transactions recorded in Exh. OWl/i, in which the land of village Kia is shown to have been sold between 1-5-67 to 30-4-68 at abnormally high prices, was proved by any evidence whatever. The fact that they were recorded soon after the first notification under section 4 of the Act on 3-5-67 would show that they were not bona fide, for by then the people in the area had come to know that large tracts of land were intended to be acquired for Tarbela Dam Project and thus they conveniently inflated the prices.
21. ' In a recent judgment of this Court in the case of North-West Frontier Province v. Shad Muhammad Khan and others (1), the question of the effect of similar mutations had come up for consideration.
22. And in-there the following principle, laid down in the case of Land Acquisition Collector Rawalpindi v. Lieut-General Wajid All Khan Burk I (2) was recalled with approval :- `Before the learned District Judge, the General produced the patwart who produced some mutations which evidenced sale of prices of land in the vicinity near about the time of compulsory acquisition. The learned District fudge accepted the prices mentioned in the market-value of the land compulsorily acquired from the General as Rs, 40,000 per kanal. It is extremely common that persons buying property have a higher price mentioned in the document evidencing the sale in order to discourage the pre-emptors and it is clear that the suspicion that a higher price has been mentioned in the relevant document should at once arise if one finds that the price has suddenly shot up. Another thing that cannot be lost sight of is that as soon as information that Government is about to acquire land in a locality for a purpose which will enhance the value of the land in that vicinity reaches the owners of property in that locality prices go up. All these things have to be kept in view before coming to the conclusion what the market-value of the piece of land compulsorily acquired at the relevant time was. But as in his order dated the 27th of November 1958, the learned District Judge accepted the prices mentioned in the mutations as correct overlooked some important matters which should have been kept in view."
23. ' It seems to us that the learned Addl. District Judge was not correctly informed about the scope of the decision reached in presidential meeting held on 3-5-67 at Peshawar. What was decided in that meeting was that only those mutations, which were recorded on the basis of registered sale- deeds, were to be taken into consideration. But this was not the case in regard to Exh. OW1/1. It is true that on this aspect of the case, there is no evidence on record. But we would like to take judicial notice of this fact, in view of {{FOOT NOTE}}
(1) 1975 Law Notes Pesh. 338 (2) PLD 1960 Lab. 469 {{FOOT NOTE}} ' or finding, in the case of North-West Frontier Province v. Shad Muhammad Khan and others which is as follows ' In this respect, we have the evidence of Muhammad Iqbal (0. W. 1) (respondent's own witness), in which he has admitted that the instructions of Committee of Tarbela Dam Project relate only to those mutations which are recorded on the basis of registered sale-deeds. And considering that no objection was taken to his evidence by respondents such as to have declared him hostile, they cannot possibly extricate themselves from the effect of that admission. Mr. Fida Muhammad Khan, however, argued that under section 91 of Evidence Act, Muhammad Iqbal could not be permitted to depose to the written contents of the said instructions without producing a copy of it on record. But he forgets that he was his own witness. In any event, he did not deny that according to the instructions of the Committee of Tarbela Dam Project, only those sale mutations are to be taken into consideration, which have been attested on the basis of registered sale deeds ..........
24. ' It is pertinent to note that Mr. Fida Muhammad Khan, the learned counsel who appeared in that case for respondents, is also appearing for respondents in this case.
25. ' Quite apart from this position, however, the learned Addl. District Judge seems to have misconceived the scope of revenue mutations. In this respect, we would like to refer to a judgment of the Privy Council in the case of Thaukar Nirman Singh and others v. Thaukar Lal Rurda Partab Narain Singh and others (1) in which their Lordships had this to lay down by way of legal principle : "Revenue mutations were no more than in the nature of fiscal inquiries in the interest of the State for the purposes of ascertaining which of the several claimants for the occupation of certain denomination of immovable property may be put into occupation with greater confidence that the revenue for it will be paid."
26. ' The mutations recorded in Exh. OW1/1 were not required to be taken into consideration for the purposes of ascertaining the market-value of the land unless, of course, some of the parties to these transactions were produced in evidence to establish their bona fides. It is true that the learned Collector also had to rely on sale-mutations. But this objection would not apply in his case.
27. For in the first place, the mutations relied upon by him were spread over a period of five years, prior to the publication of section 4 notification. And in the second place, in the absence of any other evidence before him, he had no option but to rely on these mutations in line with the practice which seems to have been approved by superior Courts.
28. ' We are, therefore, satisfied that the enhancements of compensation by Addl. District Judge, in favour of respondents was not only unjustified but highly exaggerated. For instance, he has awarded to respondents for chahi, rabbi and abadi type of land Rs, 5,000 per kanal or Rs, 40.000 per acre. If one was to apply his principle to the best kind of land in the colony District of Punjab, a square of land, which consists of 25 acres, would be worth Rs, one million-a fantastic figure by any reckoning. We are, therefore, of {{FOOT NOTE}}
(1) AIR 1926 P C 100 {{FOOT NOTE}} ' the view that the award of Collector which seems to be the product of considerable labour and care, is not only reasonable but has awarded to respondents entirely adequate compensation. In this respect, we are referring to that part of his award from which he seems to have departed without any reason and which is as under :- Rs.
29. Chahi, Abbi2872 Per Kanal Bari 1436 Per Kanal Maira 718 Per Kanal Rakkar-Kalsi478 Per Kanal Banjar 239 Per Kanal Ghairmumkin120 Per Kanal Abadi 1436 Per Kanal ' With this modification of the award of Collector, and allowing to respondents compensation at the said rates, we allow these appeals and set aside the judgment of learned Addl. District Judge.
30. Under the circumstances, however, the parties would bear their own costs.