' MIAN ALLAH NAWAZ, J---This First Appeal, under section 54 of Pakistan Land Acquisition Act (No, I of 1894), by Syed Masihul Islam and others/expropriated owners, calls in question the property of Award rendered by Senior Civil Judge, Rajanpur/Reference Court dated 31-7-1993.
2. The facts, briefly stated, giving rise to this appeal are: That land measuring 81 Kanals 4 Marlas situated in Square No, 129 within the limits of Municipal Committee, Rajanpur was acquired by the Province of Punjab for the purpose of construction of Government Girls Inter College, Women, Rajanpur. This happened vide Notification No, 485/DRA/dated 18-7-1984 issued under section 4 of the Act. The appellants appeared before the Land Acquisition Collector and claimed that the price of the acquired land was not less than 20,000 rupees per Marla. The Land Acquisition Collector, on the material produced by the parties, found that its market value was 400 rupees per Marla. This did not satisfy the expropriated owners of the land. All of them, including the appellants claimed references under section 18 of the Act. It was alleged therein that the price of the acquired land was not less than 20,000 rupees per Marla. The District Collector sent the Reference to the learned Senior Civil Judge, Rajanur alongwith other four References.
3. These References were contested. The respondents, in their written statement, maintained that the acquired land was not situated within the limits of Municipal Committee, Rajanpur, that it was barren agricultural land and was properly priced by Land Acquisition Collector. In order to prove their case, the appellants besides appellants Nos.4 and 9, examined five witnesses namely Syed Mumtaz Ahmad (P.W. 1), Bashir Ahmad Qureshi (P.W. 2), Noor Muhammad (P.W. 3), & iiq Muhammad Shah (P.W. 4), Rehm Bakhsh (P.W. 6) and appellants Nos. 4 and 9 as P.Ws. 5 and 7. In addition to oral evidence appellants tendered in evidence the certified copies of public documents, i,e, from Exhs. A/1 to A/12. On the contrary, the respondents relied upon 7 witnesses namely Gulab (R.W. 1), Allah Ditta (R.W.2), Anjum Shaheen (R.W. 3), Muhammad Ashraf Qamar (R.W. 4), Saleem Akhtar (R.W.5), Riasat Ali Patwari (RW.6) and Malik Altaf Hussain (R.W. 7). The respondents also tendered into evidence the record of public documents i,e, Exhs. R-1 to R-31. Upon the consideration of evidence so adduced by the parties, the learned Reference Court came to the conclusion that Rejanpur was not a developed city as compared to other cities of the Punjab; that the acquired property was barren agricultural land and that, the Land Acquisition Collector had properly fixed the compensation of the acquired land. This is how this Regular First Appeal has come to this Court.
4. Learned counsel for the appellant assailed the Award of the Reference Court on following grounds:-- ' Firstly: That Reference Court had almost tendered a mechanical, partisan award. According to him, Mutation No, 1259 dated 11-1-1984, Mutation No, 1281 dated 15-2-1984, Mutation No, 1282 dated 15-2-1984, Mutation No, 1290 dated 21-4-1984 and Mutation No, 1293 dated 26-4-1984 related to transactions of sale of similarly situated land and were relevant material for the purpose of determining the compensation of acquired land. On the strength of this circumstance, it was argued that the learned Reference Court had not correctly assessed price of acquired land and the Award so merited to be set aside.
' Secondly: That all the P.Ws had unanimously stated that the acquired land was the part of Town Rajanpur; it was situated by sides of roads; that Eidgah Colony was at a distance of 1/1-2 acres from it; that all the residential colonies were near it and so the acquired property was not barren agricultural land but it was urban residential property having a commercial potential. The learned counsel relied upon map Exh. A/12 to this effect.
' Thirdly: That the acquired land was situated in an area where the rating for the purpose of immovable property tax was 3,000 to 6,000 rupees for residential plots and for 15,000 to 20,000 rupees for commercial plots. He referred to map Exh. A/12 to support his contention. The learned counsel relied upon Province of Punjab v. Malik Altaf Ahmad and others (1993 CLC 179) to contend that the price of acquired land was not less than 3,000 to 4,000 rupees per Marla. According to him, the land acquired in Malik Altaf Ahmad's case (supra) was situated outside the Municipal Committee limits of Rajanpur and was inferior in quality to land acquired that the Reference Court in that case had fixed the compensation at the rate of 2,000 rupees per Marla that the decision of the Reference Court was affirmed by Supreme Court.
6. On the contrary, the learned counsel for respondents, supported the impugned Award. He at the outset, submitted that the acquired land was not situated within the urban limits of Rajanpur, was barren agricultural land and its price was not more than 400 rupees per Marla. At the far end, he however, relied upon rule laid down in unreported judgment of this Court titled "Muhammad Rafiq v. P.B.C. (RFA-43/1980/BWP) to contend that if the price of the acquired land was increased by this Court, then the principle laid down in RFA 43/1980/BWP (supra) was applicable to this case also.
The learned counsel for the appellants agreed to the appellant as far as the rule laid down in RFA 43/1980 was concerned.
7. We have heard the learned counsel for the parties at a considerable length, gone through the relevant record with their assistance. Before we embark upon to determine the contentions of the parties, it would be useful to examine the law dealing with the assessment of compensation, as embodied in sections 23 and 24 of the Act. A bare look at these sections shows that the owner is entitled to receive the market value of the land. The market value of the land is not defined anywhere in the Act. The words "market value" however, came up for consideration before Privy Council in the case of Fraser v. City of Freser Vile LR 1917 Act 194 that:- "It is value to the seller of the property in its actual condition at the time of expropriation with all its existing advantages and with all its possibilities, excluding any advantages due to the carrying out of the scheme for the purpose for which the property is compulsorily acquired."
' This principle was followed in R.B. Narsingh Das v. Secretary of State of India (1925 PC 91). This principle was again reaffirmed in Atmaram Ghadgay v. Collector of Nagpur (AIR 1929 PC 92), Vyrincherla Narayana Gajapatriaju v. Revenue Divisional Officer, Vizagapatam (AIR 1939 PC 98), Secretary of State v. Naresh Chandra Bose (AIR 1926 Cal. 1000), Collector of Cingleput District Saida v. Kadir Mohideen Sahib (AIR 1926 Mad. 732), Secretary of State v. Chuni Lal and others (AIR 1931 Lah.
207), Sheikh Manzoor Hussain v. The Multan Improvement Trust, Multan and another (PLD 1972 Lah.
225) and Malik Abdul Qayyum etc. v. Punjab Province etc. (PLD 1979 Lah. 853).
8. It would be useful to examine the case of Fazalur Rahman. And others v. General Manager, SID B and another (PLD 1986 SC 158). In this case the circumstances of future use of property and effect of devaluation of currency and inflatory trends were examined. The relevant passage from the judgment of his Lordship Mr. Justice Aslam Riaz Hussain (as he then was) is noted with advantage: "I would, therefore, like to emphasize that while determining the value of the lani acquired by the Government and the price which a willing purchaser would give to the willing seller, only the past sales would not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as a Court witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In the appropriate case there should be no compunction even on relying upon the oral testimony with respect to the market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful, and ever necessary, to examine such witnesses while determining the market price of the land in question, because of the prevalent tendency that in order to save money on the purchase of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declared or show a much smaller amount at the price of the land purchased by them than the price actually paid. The 'previous sales' of the land cannot, therefore, be always taken to be an accurate measure for determining the price of the land intended to be acquired."
' This rule was again noted in Sub. Haider Zaman and others v. Government of N.-W.F.P. And others (1987 SCMR 465) and Malik Aman and others v. Land Acquisition Collector and others (PLD 1988 SC 32).
9. In Nawabzada Muhammad Saeed Khan v. The Collector, Land Acquisition, Multan (1990 MLD 1232), after the survey of the law and precedents, the following principles were enunciated for the purposes of assessm ent of market value of land under the Act:
(1) The market value or market price means the price property would fetch in the market. The price will be the highest price willing buyer would pay and a willing seller would accept both being fully informed and the property being exposed for a reasonable period of time.
(2) The market value may be different from the price a property can actually be sold at a given time. The market value is that price which might be expected to bring if offered for sale in a fair market.
(3) In assessing the compensation the potential value i,e, the benefits advantages arising from the present use and future use are to be taken into consideration.
(4) The inflationary trends and depreciation in currency of the country between the date of acquisition under section 4 of the Act and the date of award also should not be totally ignored and be taken into consideration."
10. The survey of the case-law will not be complete without noting the two judgments of Supreme Court of India reported in Special Land Acquisition Officer, Dayangere v. P. Veerabhadarappa etc. (AIR 1984 SC 774) and Chimanlal Hargovinddas and 2 others v. Special Land Acquisition Officer, Poona and another (1989 MLD 2392). In Special Land Acquisition Officer Devengere's case, it was held:-- "It is the value to the seller of the property in its actual condition at the time of expropriation with all its existing advantages and with all its possibilities, excluding any advantages due to the carrying out of the scheme for the purpose of which the property is compulsorily acquired."
' This golden principle was reiterated with meticulous consistence in R.B. Lal Narsingh Das v.
Secretary of State of India (1925 Privy Council 91), Vyricherla Narayana Gojapatriaju v. Revenue Divisional Officer Vizagapatain (AIR 1939 Privy Council 98), Secretary of State v. Naresh Chandra Bose (AIR 1926 Calcutta 1000), Collector of Chingleput, District Saida v. Kadir Mohideen Sahib (AIR 1926 Madras 732), Secretary of State v. Chuni Lal and others (AIR 1931 Lah. 207), Sheikh Manzoor Hussain v. Multan Improvement Trust and another (PLD 1972 Lahore 225) and Malik Abdul Qayyum etc. v. Punjab Province etc. (PLD 1979 Lah. 853).
11. Guided by the above principle, now we turn to deal with the rival contentions of the parties. As already noted, the oral evidence of the appellants comprises of Syed Mumtaz Ahmad Shah, P.W. 1, Bashir Ahmad Qureshi P.W.2, Noor Muhammad P.W.3, Sadiq Muhammad Shah P.W.4, Rahim Bakhsh P.W. 6 and appellants Nos.4 and 9 as P.W.s 5 and 7. All these witnesses fully described the situation of acquired land and stated that it was near Fatehpur Road which led to Fatehpur Air Base; that residential Colonies namely Ali Town, Eidgah Colony, Rajanpur were also near it. These witnesses stated that District Jail, National Bank of Pakistan, United Bank, Muslim Commercial Bank were also situated near it and that the market value of the land was Rs,4,000 per Marla. They brought to the notice of the Court that the Provincial Government had acquired other piece of land for the purposes of construction of District Complex which was situated at a distance of one mile from the Civil Court its compensation was worked out to be Rs,2,000 per Marla; that this assessment was upheld by this Court as well as by the Supreme Court. These witnesses were subjected to lengthy cross-examination but nothing was extracted to demolish/impeach their evidential value. As against this testimony, respondents banked upon Gulab R.W. 1, Allah Ditta R.W.2, Anjum Shaheen R.W.3, Muhammad Ashraf Qamar R.W.4, Saleem Akhtar R.W.5, Riasiat Ali Patwari R.W.6 and Malik Altaf Hussain R.W.7 R.Ws. 3 to 5 are Lecturers of Government Colleges. They are employees of respondent and so no reliance can be placed upon them. The testimony of the appellant's witnesses seeks full support from Riasat Ali Patwari/RW.6, who admitted that acquired land was near Warraich Colony, Purhar Colony and Ali Town; that it was near Fatehpur Road. Even otherwise, the Government of Punjah acquired this land for the purpose of setting up a Government Degree College for Women. Naturally for such an institution, a place is selected which is accessible to all the proples and which is connected by infrastructure of Roads. This aspect was wholly overlooked by the learned Reference Court. On the assessment of material available on record, we have no hesitation in coming to the conclusion that the acquired land was urban residential property with prospect of being put to commercial use.
12. Having determined the nature of land, we turn to ascertain its compensation. We have thoroughly assessed material available on record and are constrained to say that the testimony of both sides is highly biased and depicts an over-exaggerated picture. The Province of Punjab relied upon R.Ws. 3, 4 and 5 to prove that the market value of the land at the relevant time was Rs,400 per Marla. Unfortunately, all of these witnesses were employees of Government of Punjab and none of them had ever purchased any piece of land over there. They have not dealt with the matters of property at all. For the above, we are of considered opinion that their evidence is not of much value.
The documentary evidence adduced by the respondents is equally without any credit. The respondents tendered into evidence certified copies of mutations of sales Exhs.R/2 to R/24 and R/31. Exhs. R/2 to R/9 are mutations which incorporate the transactions of sale having taken place in 1981. Similarly Exhs.R/10 to R/15 pertain to year 1982. Exhs.R/16 to R/21 pertain to transactions of sales which had been completed in year 1983. Exhs.R/22 and 31 are the mutations of sales relating to year 1986 and so on and so forth.
13. The above resume would show that none of the documents has any value for the purpose of assessing the compensation of acquired land. The testimony of RW.6/Patwari furnishes some reliable material for the purpose of fixing compensation of acquired land. He, in cross-examination gave instances of certain sales which were made with regard to similar situated land in the same locality. These are reflected in the chart which is as follows:-- {{TABLE}} S. No, Name of Revenue Estate. No, of Muta tion. Date of attesta- tion. Property Mutated.
K - M Price per Marlas Total Value. Rs, Rajan 1259 11-1-1984 2 - 00 4,000 1,60,000 Pur. -do- 1281 15-2-1984 0 -07 5,500 38,500 -do- 1282 -do- 0 - 06 5,500 33,000 -do- 1290 21-4-1984 1 - 10 600 18,000 -do- 1293 26-4-1984 0 -06 5,000 30,000 Total: 4 - 09 20,600 2,79500 {{TABLE}}
14. The above sales relate to period commencing from 11-1-1984 to 26-4-1984. These, however, pertain to sales of pieces of land ranging from 6 Marlas to 2 Kanals. The prices of such piece of land cannot furnish conclusive criterion for fixing the compensation of the acquired land which was 81 Kanals 4 Marlas. We have, therefore, decided to take mean of prices enumerated in these mutations. When we undertook to calculate the mean we were confronted with discharmony. The mean calculated from the price per Marla contained in the chart comes to Rs,4,120 but when we tried to calculate the mean of total price of property alienated through Mutations Nos. 1259, 1281, 1290 and 1293 by dividing it by total land it comes to Rs,3,140.45. By following the principle of caution we have, therefore, decided to take mean of the two averages which comes to Rs,3,630.23 per Marla. This will be a solid and satisfactory criterion for assessing market value of the acquired land.
Since the acquired land was 81 Kanals 4 Marlas and it was acquired for the purpose of construction of college etc. We are inclined to follow the rule of deductions as laid down in judgment rendered in RFA No, 43 of 1980-BWP (Muhammad Rafiq v. P.B.C.). In such a case the Court is entitled to deduct 20% area from the total area. Guided by this principle we hold that the appellants shall be entitled to compensation at the rate of Rs,3,630.23 per Marla for 81 Kanals 4 Marlas excluding of the said land.
13. As a result of the foregoing discussion we have no difficulty in reaching the conclusion that the award rendered by the Land Acquisition Collector is untenable and is, accordingly, set aside. The appellants are adjudged to be entitled to compensation of acquired land at the rate of Rs,3,630.23 per Marla for 64 Kanals 19.20 Marlas in proportionate to their entitlement. The appellants shall be further entitled to 15% compulsory acquisition charges alongwith benefit under sections 28 and 34 of the Act. There shall be no order as to costs.