SAIDUZZAMAN SIDDIQUI, J.---The abovementioned 99 civil appeals are filed against to separate judgments of a learned Division Bench of Lahore High Court, Bahwalpur Bench, dated 10-3-1993.
These appeals have arisen from to separate proceedings for compulsory acquisition of land situated in village Hansra, Tehsil and district Bahawalpur, initiated under the provisions of the Land Acquisition Act, 1894 (hereinafter to be referred as 'the Act' only). Out of these 99 civil appeals, 48 appeals (Civil Appeals Nos.869 to 916 of, 1993) are direct appeals while in the remaining 51 appeals (Civil Appeals Nos.22 to 72 of 1994), leave has been granted by this Court to consider the following contentions of the appellants:- "3. We have heard Rao Muhammad Yousuf Khan, learned Advocate---on-Record appearing for the petitioners, and we are inclined to grant leave to consider the following questions:-
(i) Whether the High Court was justified in awarding the compensation in respect of the entire land covered by the to notifications on the basis of the market rates obtaining on the date of second notification, namely 29-I-1981, without taking into consideration the market rate obtaining at the the of the above first Notification dated 25-11-1979.
(ii) Whether the High Court was justified to enhance the amount of compensation to the extent it has done in the present case; and (i.e)Whether the High Court was justified in extending the benefit of the above judgment to the respondents/owners who had not filed any appeal against the judgments of the Courts below."
2. The relevant facts for disposal of the above appeals are as follows. By a notification dated 25-11- 1979, issued under section 4 of the Act by Collector Bahawalpur, land measuring 32 Acres, 16 Marlas situated in village Hansra, district Bahawalpur was proposed to be acquired by the Government for extension of Quaid-e-Azam Medical College, Bahawalpur. This notification was later substituted by another notification, under section 4 of the Act dated 29-1-1981 issued by the Collector Bahawalpur proposing to acquire 44 Acres, 2 Kanals and 6 Marlas of land in the same village for the same purpose published in the Punjab Gazette dated 4-2-1981. The Land Acquisition Collector Sadar Sub- division, Bahawalpur after holding enquiry fixed the compensation for the acquired land under section l I of the Act through its award dated 19-4-1983 at the rate of Rs.1,33,120 per Acre for 32 Acres, 16 Marlas (which was originally intended to be acquired under notification dated 25-11-1979) and Rs.1,85,446.22 per acre for the remaining 12 Acres, 1 Kanal and 10 Marlas (which was added by the subsequent notification dated 4-2-1981). The Collector Acquisition, in addition to above compensation also awarded 15% for compulsory acquisition charges, compensation for fruity and non-fruity trees, houses and cultivation existing on the acquired land. The landowners objected to the award and asked for a reference to the Court under section 18 of the Act. The Collector Acquisition, accordingly, referred the matter to the Court. The referee Court, after recording evidence in the cases enhanced the compensation for the entire acquired land at flat rate of Rs.2,89,212.63 per acre (Rs.1,807.57 per Marla) plus 15 % as charges for compulsory acquisition on the compensation anal 8 % interest on enhanced compensation from the date of taking over possession of the land to the date of payment. The compensation awarded by the Collector for fruity and non-fruity trees, houses and cultivation on the land was however, maintained. The appellants challenged the decision of referee Court before a learned Division Bench of the Lahore High Court, Bahawalpur Bench, in R. F. A. Nos.
104 to 167 of 1992. Some of the landowners also. Challenged the decision of referee Court in R.F.As.
58 to 65 of 1992 and a cross-objection No. 178 of 1992 was also submitted in R.F.A. No. 115 of 1992 filed by the appellants. The learned Division Bench of the High Court by its judgment dated -10-3- 1993, (which is impugned before us in C.As. Nos.869, 870 and 879 to 916 of 1993 and 22 to 54 of 1994) dismissed the appeals (R. F. As. Nos. 104 to 167 of 1992), filed by the appellants but allowed R.F.As.
Nos.58 to 65 of 1992 and cross-objection No. 178 of 1992 in R. F. A. No. 115 of 1992, filed by some of the landowners, with the result the compensation for the acquired land was further enhanced to Rs.4,666 per Marla on which 15% compensation on account of compulsory acquisition charges and compound interest at the rate of 8% per annum on the difference of the amount of compensation from the date of taking over possession of acquired land up to the date of deposit or payment of the amount of compensation was awarded. The learned Judges further, in exercise of the powers conferred on them under Order 41, Rule 33, C.P.C., extended the benefit of enhanced rate of compensation to those landowners also who had neither filed appeals against the decision of referee Court nor had filed any cross-objection in the R.F.As. Filed by the appellants.
3. Another notification dated 16-2-1981 under section 4 of the Act proposing to acquire 7 Acres, 7 Kanals and 17 Marlas of land in village Hansra, Tehsil and district Bahawalpur, for the purposes of construction of class-III and IV Government Employees Houses, issued by the Collector Bahawalpur, was published in the Punjab Gazette dated 25-2-1981. The Land Acquisition Collector Saddar Sub-division, Bahawalpur after holding enquiry, fixed the compensation under section 11 of the Act for the acquired land at the rate of Rs.1,89,120 per acre plus 15 % on account of compulsory acquisition charges on the amount of compensation. In addition to above, the Acquisition Collector also awarded compensation to the landowners, who had houses, fruity trees and non---fruity trees and cultivation on their land. The landowners, however, did not accept the award of Collector and asked for a reference to Court under section 18 of the Act which was allowed by the Acquisition Collector and accordingly, the cases were referred to the Court under section 18 of the Act for assessm ent of compensation for the acquired land. The referee Court after recording evidence of the parties fixed the compensation for the acquired land at the rate of Rs.5.000 per Marla in addition to 8% per annum on the amount pf compensation from the date of taking over possession of the acquired land till the payment or deposit of the amount. Aggrieved by the order of referee Court the appellants filed R.F.As. Nos.69 to 93 of 1989, R.F.As. Nos.72 to 99 of 1992, R.F.A. No.102 of 1992 and R.F.A. No.103 of 1992 to call in question the judgment of referee Court while cross-objection No. 14 of 1991 was filed in one of the appeals by the landowner. The learned Division Bench agreed with the assessm ent of rate of compensation for the acquired land determined by the referee Court and accordingly, dismissed all the R.F.As. Mentioned above. However, on the cross-objection No.14 of 1991 filed by one Mst. Sajida, the learned Judges of the Division Bench observed that 15% compulsory acquisition charges, though not mentioned in the decision of referee Court, will be paid to the landowners as it was awarded by the Collector and this part of the order of Collector was not upset by the referee Court. This judgment of the learned Division Bench is the subject matter of appeal before this Court in Civil Appeals No!'871 to 878 of 1993 and Civil Appeal No.55 to 72 of 1994.
4. In support of the above appeals, the learned counsel for the appellants pressed only 3 contentions which are noted in the leave granting order of this Court dated 16-1-1994. These contentions have already been reproduced earlier in this judgment. We may, however, clarify here that contentions Nos. l and 3 mentioned in the leave granting order are relevant only in the appeals before this Court which have arisen from the award dated 19-4-1983 while contention No.2 is common in all the appeals.
5. We will first take up contentions Nos. l and 3 which arise only in those appeals which relate to award dated 19-4-1983. In support of the first contention, the learned counsel for the appellants contended that land measuring 32 Acres, 16 Marlas only was originally proposed to be acquired by the Government for extension of Quaid-i-Azam Medical College, Bahawalpur, which was notified through notification issued under section 4 of the Act on 25-11-1979. It is further contended by the learned counsel that subsequently the Government decided to acquire additional area of 12 Acres, 1 Kanal and 10 Marlas of land for the same purpose and accordingly, another notification dated 29- 1-1981 under section 4 of the Act was issued by the authorities which was published in the Punjab Gazette dated 4-2-1981 proposing to acquire an additional area of 12 Acres, 1 Kanal and 10 Marlas in the same vicinity. The contention of the learned counsel for the appellants is that the subsequent notification under section 4 of the Act issued on 29-1-1981 and gazetted on 4-2-1981 was in fact a corrigendum of the earlier notification dated 25-11-1979 and therefore, while determining the compensation for the acquired land, the compensation for 32 Acres and 16 Marlas of land should have been determined according to the market value of the land prevailing on 25-11-1979 (the date of the first notification under section 4 of the Act) while the compensation for the remaining additional area of 12 Acres 1 Kanal and 10 Marlas should have been worked out on the basis of market value of the land prevailing on 4-2-1981 (the date of publication of the second notification under section 4 of the Act). The above contention raised by the learned counsel for the appellants was fully considered by the learned Judges of the High Court and was rejected as follows:- "11. Mr. Tassaduq Hussain Jillahi, learned Additional Advocate---General appearing on behalf of the appellants submitted that subsequent notification issued on 29-1-1981 was in fact in the nature of corrigendum to the notification previously issued on 25-11-1979 therefore, the compensation of the land should have been assessed on the basis of market value of the land prevailing in the locality on 25-11-1979. The argument has no force. Through Notification dated 25-11-1979 land measuring 32 Acres, 16 Marlas was intended to be acquired. However, in the subsequent Notification dated 29-1- 1981 this land as also additional land measuring 12 Acres, 1 Kanal 10 Marlas totalling land measuring 44 Acres, 2 Kanals 6 Mairlas was acquired. The Collector determined the assessment of the land acquired through Notification dated 25-11-1979 on the basis of market price prevailing on the said date whereas for the additional land measuring 12 Acres, 1 Kanal 10 Marlas the compensation was determined by him according to the market price prevailing on 29-1-1981. Had subsequent notification dated 29-1-1981 been intended to be in the nature of only corrigendum the Collector would have determined the price of the whole of the land according to market value prevailing on 25-11-1979. It appears that the Collector treated both the notifications independent from each other and determined the price of parcel of land covered by each of, the said notification separately.
Notification dated 29-1-1981 has been produced in evidence. It is evident from this Notification that the previous Notification dated 25-11-1979 was expressly rescinded/cancelled which means that the concerned authorities expressly abandoned the proceedings for acquisition of land through Notification dated 25-11-1979 and in all respect notification dated 29-1-1981 was a fresh notification through which land measuring 44 Acres, 2 Kanals and 6 Marlas was acquired and the trial Court rightly proceeded to determine the market price of the entire land with reference to the date of the said Notification on the basis of market price prevailing in the locality on the said date It may be observed that it has also been observed by the trial Court in the impugned judgment that learned counsel for both the parties agreed that the compensation of the land should be determined with reference to notification dated 29-1-1981 for the entire land. Keeping in view all these facts it is not possible to argue that notification dated 29-1-1981 was merely a corrigendum to the earlier notification dated 25-11-1979, the same is repelled."
6. The learned counsel for the appellants is unable to point out any legal or factual infirmity in the above reasoning of the learned Judges of the Division Bench. We are inclined to agree with the conclusion of the learned Judges of the High Court that the subsequent notification dated 4-2-1981 issued under section 4 of the Act was neither a corrigendum of the first notification issued on 25-11- 1979, nor the subsequent notification had the effect of only adding an area of 12 Acres 1, Kanal and 10 Marlas of land to the earlier notification dated 25-11-1979. The learned counsel for the appellants concedes before us that the notification dated 4-2-1981 was in respect of 44 Acres, 2 Kanals and 6 Marlas of land and it made no reference to the earlier notification dated 25-11-1979 issued under section 4 of the Act for acquisition of 32 Acres, 16 Marlas of land. It is, therefore, quite clear that notification dated 4-2-1981 was an independent notification under section 4 of the Act and was in supersession of the earlier notification dated 25-11-1979. In these circumstances, we are of the view that the market value of the land i.e. 44 Acres, 2 Kanals and 6 Marlas was to be determined by the Courts below in accordance with the market rates prevailing on 4-2-1981. The first contention of the learned counsel for the appellants, accordingly, fails.
The third contention of the learned counsel for the appellants as noted in the leave granting order is, that as some of the respondents/landowners had not preferred any appeal or filed cross- objection in the appeals preferred by the appellants before the High Court, the High Court had no jurisdiction to extend the benefit of its judgment to the non-appealing respondents or to those who did not care to file cross-objection in the appeals filed by the appellants before the High Court. The learned Judges of the Division Bench while addressing this aspect of the case observed in the impugned judgment as follows:-.
"23. The next question which falls for consideration which has engaged our serious consideration is as to whether those objectors who have neither filed appeals nor cross-objections should be granted this relief or not. Under Order 41, Rule 33, C.P.C. The appellate court is vested with judicial mind to other factors in order to determine the compensation correctly so that none of the parties and particularly the owners whose land has been acquired adversely suffer. It may be mentioned here that though Notification under section 4 was issued in January, 1981, the award was made by the Collector in 1983. It cannot be ignored that once the property is subject to acquisition, the title of the owners becomes under clouds and for the entire period between the issuance of initial Notification under section 4 uptill the finalization of the properties with the pronouncement of Award the owners are not in a position to derive full benefit from the property. In this case, the owners have suffered on that account to, therefore, while determining the sale price of the land, the evidence produced regarding sales made of the land even after the issuance of Notification in 1981 relating to period close to the said date will also be taken into consideration in determining the assessm ent. As observed above, the parties always tried to fix low price in the sale-deeds in order to avoid taxes, therefore, the assessm ent of sale price of the land by the authorities for the purpose of charging gain tax would also be relevant for determination of the sale price as the price assessed by each authorities are always based on the market price prevailing at the relevant the in the area. According to A.W. 3/1 to Exh. A.W.6, the sale price of per Marla land sold in the area comes to Rs.5,000 to Rs.6,000. No doubt some of the said assessments relate to the sales made subsequent to notification but the same are with regard to period very close to the said Notification. Ext. A.7 is a sale-deed dated 27-9-1980 through which a plot of five Marlas was sold for an amount of Rs.35,000 and the price per Marla comes to Rs.7,000. This land is situated in Trust Colony which is adjacent to the land of Muhammadia Colony and the land in dispute. Exh.A.4 is a sale-deed dated 6-5-1980 through which land about three Marlas was sold for an amount of Rs.7,000 in Muhammadia Colony as price per Marla comes to Rs.2,333. If the average sale of these to sales is taken the same comes to Rs.4,666 per Marla which is nearer to the price assessed by the gains tax authorities through Exh. A.W.1 to A.W.3/6 which in our view furnishes strong evidence for determining the price of land at the relevant the prevailing in the locality which a willing purchaser would have offered. The determination of assessment by the Collector and the power to pass any decree different from the one passed by the trial Court which should have been passed, in favour of any of the parties, any appeal notwithstanding that such party had not challenged the same or filed cross-objections. In our opinion this is eminently a fit case for exercise of this power in favour of such objectors who are respondents in R.F.A. No.105 of 1992 to R.F.A. No.167 of 1992 because we feel they cannot be deprived of their right to get compensation of their property on any ground.
We, therefore, pass decree/award in favour of the respondents in the said R.F.As. For payment of compensation at the rate of Rs.4,666 per Marla alongwith 15% as compulsory acquisition and compound interest at the rate of 8 % per annum on the difference of amount from the date of taking over possession of the land up to the date of payment of the amount. With a view to remove any doubt as to the manner of calculation of compensation granted to the owners it is hereby clarified that to the compensation awarded to the owners of the land on account of value of land at the rate of Rs.4,666 per Marla shall be added the compensation granted to them by the Collector regarding fruit/fruitless trees and harvest. On the total amount thus calculated 15% compulsory charges shall be paid. On the total amount thus become due compound interest at the rate of 8 % per annum shall be paid."
The learned counsel for the appellants vehemently contended that some of the landowners had either omitted to prefer any appeal against the order of referee Court or failed to file cross objections in the appeals filed by the appellants. It is contended that, such landowners could not be granted any relief by the High Court, much less the reliefs granted to landowners who had either preferred appeals against the ,judgment of referee Court or had filed cross-objection in the appeals preferred by the appellants. It. Is further contended by the learned counsel for the appellants that the power of appellate Court is contained in section 107, C.P.C. Which does not authorise the appellate Court to grant relief to a non-appealing respondent or to a respondent who has failed to prefer any Cross-objection in the appeal. It is also argued that by providing in Order 41, Rule 33, C.P.C. That the appellate Court could grant relief to a party who had neither filed appeal nor preferred cross-objections. The rule making authority conferred by section 122, C.P.C.
Has been transgressed and as such to the extent the High Court granted reliefs to the landowners who had neither filed appeals nor cross-objections, the judgment was not sustainable. The contention of the learned counsel does not appear to be correct.
7. The Code of Civil Procedure, 1908 (hereinafter to be referred as 'the Code' only) was enacted to regulate the proceedings before the civil Courts. The provisions contained in the Code are mainly rules of procedure. It is well-established that all procedural laws are subservient to the cause of justice and therefore, such laws neither limit nor control the power of the Court to pass an order or decree which is necessary to do full justice in the facts and circumstances of the case.
Interpretation of procedural law in a manner, it tends to obstruct the course of justice has to be avoided as far as possible. The framers of the Code were also alive to the above stated-------- -..Underlying object of procedural law. And perhaps for this reason and to remove and dispel all doubts in this regard unequivocally provided in section 151 of the Code that 'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.' Section 107 of the Code relied by the learned counsel for the appellants reads as follows:- "107. Powers of Appellate Court.--(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
Section 107, (ibid), however, is not to be read in isolation. It is to be read with other provisions of the Code. We have already referred earlier to section 151 of the Code which provides that the provisions of the Code do not limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. The power as is referred in section 151 of the Code is inherent in every Court and for its exercise no support from any enacted law is necessary. Section 2(18) of the Code defines "rules" as the rules and forms contained in the First Schedule or made under section 122 or 125 of the Code. Section 121 of the Code states that the rules in First Schedule shall have effect as if enacted in the E body of the Code until annulled or altered in accordance with the provisions contained in part X of the Code.
Rule 33 of Order XLI which is part of First Schedule reads as follows:- "33. Power of Court of appeal.--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.
Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
Section 122 of the Code confers powers on the High Court to frame rules regulating their own procedure and the procedure of the Civil Courts subordinate to it. It is not disputed before us that provision contained in Rule 33 of Order 41 of the Code has not been amended so far in its application to Province of Punjab. The combined effect of sections 121 and 122 of the Code is that section 107 is to be read alongwith the provisions contained in Order 41, Rules 1 to 37 of the Code.
The provisions contained in section 107 and Order 41 of the Code are, however, not exhaustive in so far the powers of Appellate Court j are concerned. The Appellate Court, therefore, in appropriate cases where these provisions do not provide for a remedy, and the justice of the case so demands, may have recourse to its inherent power to pass an order which is necessary to meet the ends of justice.
The power of the appellate Court to grant relief to a respondent who neither preferred any appeal nor filed cross-objection has been the subject of consideration in a number of cases before this Court. In the case of WAPDA v. Khanzada M. Abdul Haque Khan Khattak & Co. (PLD 1990 SC 359) which was a case arising out of arbitration proceedings, this Court while dealing with the appeal arising from the award made the following observations with regard to power of the Court under Order 41, Rule 33, C.P.C.:- "But the appellants had also filed an appeal from the decree passed on award and if the trial Court had not awarded interest as provided in section 29 of the Arbitration Act, the appellate Court has had ample powers under Order 41, rule 33, C.P.C. To pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power could be exercised by the Court in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection."
In the case of Ghulam Hussain v. Faiz Muhammad (PLD 1991 SC 218), the matter was brought before this Court out of a suit of inheritance in which the appellants and respondents both were parties before the trial Court. A learned Judge in the High Court declined to grant relief to one of the parties to the proceedings on the ground that she was only a pro forma defendant in the suit and no proceeding by way of suit claiming right of inheritance was instituted by her. This Court did not approve the above approach of the High Court and made the following observations with reference to the powers of an appellate Court under Order 41, Rule 33, C.P.C.:- "This, with respect, was not a correct approach to the difficulty for solving the same. Order XLI, Rule 33, C.P.C. Permitted the first appeal Court to grant a decree in favour of Mst. Mureedan respondent before it. It reads as follows:- .
Order XLI Rule 33; Power of Court of Appeal.---The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or .Refused to make such order.
Looked at from this angle the difficulty visualised by the High Court, vis-a-vis, the provisions of the Specific Relief Act would not present any insurmountable difficulty. It may he clarified that had there been any such difficulty we would not have hesitated to exercise further inherent power to do complete justice by undoing an unIslamic mode of devolution of inheritance of Lal Khan deceased, the last male-holder in this case whereby a female heir Mst. Mureedan would have been deprived of her valuable right to inheritance. See for the support of this view Ghulam Ali and 2 others v. Mst.
Ghulam Sarwar Naqvi PLD 1990 Supreme Court 1. But it is not necessary.
Same power was with the High Court itself and a similar power is with this Court under Supreme Court Rules Order XXXIII, Rule 5. The trial Court also, it cannot be denied, had inherent power in a case like the present one on the analogy of provisions contained in Order XLI, Rule 33, C.P.C. And Order XXXIII, Rule 5, Supreme Court Rules to do justice between the parties before it, under section 151, C.P.C. If there was any need for an order for transposing a defendant as a plaintiff the same also could have been done under other provisions of C.P.C. Including general enabling provision in this behalf,, namely, section 153, C.P.C. This error or defect could be remedied by any of the Courts and could also be resorted to by this Court if there would have been any need but in view of the availability of the other more elaborate and effective power under Order XLI, Rule 33, C.P.C. The to lower appellate Courts and under Order XXXIII. Rule 5 of this Court, there is no need to resort to the said provisions of C.P.C. Including sections 151 and 153, thereof."
Similarly, in the case of Central Government of Pakistan v. Suleman Khan (PLD 1992 SC 590) which was a matter arising out of land acquisition proceedings the question arose whether the High Court having found that the appeal filed by the Central Government was not maintainable, could in exercise of its powers under Order 1, Rule 9 and 10, C.P.C. Transpose the Collector, who was respondent in the appeal to grant relief. In course of discussion on the power of High Court under Order 1, Rule 9 and 10, C.P.C. The provisions of Order 41, Rule 33, C.P.C. Also came under consideration and following observations were made with regard to the power of appellate Court under this provision:- "In our view, the High Court has taken to strict view of the power granted to the Court by the provisions of the Code of Civil Procedure. Order 1, Rule 10, C.P.C. Is very wide in its scope. The power to transpose is derived amongst others, from the said provision which has always been interpreted liberally so as to achieve the complete adjudication of all the questions which are involved in the lis, one of the purpose being to avoid multiplicity of the proceedings. In other words the power to transpose is to be exercised liberally and no technical hurdle is considered so strong as to override the considerations of 'adjudication' or right to justice. It is in that very context that when a defendant/respondent is transposed as plaintiff/appellant no question of limitation as such is involved.
Order I, rule 9, C.P.C. Gives also, very strong support for the foregoing approach regarding interpretation and application of Order 1, rule 10, C.P.C. This provision (Rule 9) is in a mandatory negative form; namely, that no suit shall be defeated by reason of the misjoinder or non joinder of parties and the Court may in every suit deal with the mattes in controversy so far as regards the rights and interests of the parties are concerned. It is not at all in dispute nor the High Court had any such constraint that what is applicable to the plaintiff and defendant at the trial stage can also apply in appeal, to the appellant and the respondent in so far as these to provisions in Order I, Rules 9 and 10, C.P,C. Are concerned. Not only this it is now well-settled that under Order 41, Rule 33, C.P.C. That the High Court and under Order 33 Rule 5 of the Supreme Court Rules this Court can exercise the appellate powers in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection. See Province of West Pakistan through Secretary Revenue Department, Lahore v. Associated Hotels of India Ltd. 1973 SCM R 367. It is clear that what can be done under Order 1, Rule 10, C.P.C. For purpose of transposition on an oral request or specific application, can also be done by the Court concerned suo motu without any application. "
The scope of the provision of Order 41, Rule 33, C.P.C. Was also examined in depth by a learned Bench of this Court in the case of S.M. Yousaf & Brothers v. Muhammad Mehdi Pooya (PLD 1965 SC 15). In that case the appellant had filed suit against to defendants. The first defendant was sued as principal while the second defendant was sued as the agent of first defendant. The first defendant took the plea that second defendant had no authority to raise the loan on his behalf. The trial Court held that the second defendant borrowed the money on behalf of first defendant and accordingly, decreed the suit against first defendant. On appeal-by first defendant the High Court reversed the.
Decree of trial Court but. Refused to grant a decree against the second defendant although he admitted the liability for loan on the ground that no counter-appeal was filed by the plaintiff against the judgment of trial Court. This Court did not agree with this approach of High Court and observed that the High Court in exercise of its power under Order 41, Rule 33, C.P.C. In such circumstances could grant relief as the second defendant was very much a party in the appeal filed by the first defendant. These were the observations of this Court:- "As to the legal point, Mr. S.A. Nusrat for the appellant firm has urged that the learned Judges in the High Court were in error in thinking that they did not have power under Order XLI, rule 33, C.P.C., to grant a decree against Amanullah Kirmani in the circumstances of the present case. He referred to the terms in which the rule is expressed, which are indeed extremely wide and may be reproduced here with advantage:- 'The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require; and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection."
The terms employed to confer the power are of the widest amplitude to enable an appellate Court to pass decrees according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non-obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the appellate Court considers should be allowed within the framework of the suit. The non-obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the appellate Court's power. Here the whole decree was before the appellate Court, but the other non-obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff not having filed an appeal against the failure of the trial Court to. Grant a decree against Amanullah Kirmani would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle as stated in the judgment of the High Court, namely, that 'in the absence of a counter-appeal being filed a decree against another defendant cannot be given not only constitutes a fetter upon the extremely wide power given to the appellate Court by the Code, but may also be thought to be in direct contravention of a clear provision in the rule.
We have accordingly referred to the earlier judgment of the same Court in the earlier case of Bakhsh Illahi & Sons to examine the arguments there set out. Four precedent judgments are cited.
From three of them, which are mentioned without reference to their particular facts, general propositions are extracted to the effect that the power given by the rule is widely expressed and must be applied with discretion, where interference is required 'to adjust the right of the parties in accordance with justice, equity and good conscience' or where the failure to exercise the power' 'would lead to impossible, contradictory and unworkable orders'. These particular considerations undoubtedly are circumstances which would justify the exercise of the discretion conferred by the rule, but it is right that we should say that if these propositions are to be understood as limiting the exercise of the power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation. Such an interpretation cannot be extended to all or any other cases, for, in each one, the application of the rule must be made beneficially, and in accordance with the relevant facts."
8. From the preceding discussion, it follows that the power conferred on the Appellate Court under Order 41, rule 33, C.P.C. Is of the widest amplitude and in exercise of this power the Appellate Court is competent to grant relief to a party, notwithstanding the fact that such party failed to prefer an appeal or submit any cross objection. However, in granting relief in such cases the appellate Court will be guided by principles of equity, justice and good conscience and the fact that withholding of relief would result in a contradictory, unworkable or impossible order/decree. Therefore, when the Appellate Court reaches a conclusion in a case that by withholding the relief to a non-appealing respondent or to a respondent who omitted to file cross-objection grave hardship or injustice is likely to result to it or that the judgment or orders will be rendered contradictory, it will be a good ground for exercise of power under Order 41, Rule 33, C.P.C. To grant appropriate relief to a non- appealing respondent or to a respondent who omitted to file cross-objection in the appeal. In the case before us, the learned Judges of the High Court having reached the conclusion that the price of land acquired should have been assessed at Rs.4,666 per Marla, were of the opinion that in the circumstances of the case it would be unfair if the benefit of such assessment of market value of the land is not extended to those land owners also who failed to file the appeals or cross- objections. Although it was' not so expressly stated in the impugned judgment by the learned Judges but from the trend of reasoning, it is clear to us that the learned Judges were of the view that it would lead to contradiction in terms, if some of the landowners in the same vicinity are awarded compensation at higher rate while others are paid at a much lower rate of assessment.
The learned Judges, therefore, took the view that the case was fit for exercise of power by them under Order 41, Rule 33, C.P.C. By awarding compensation at a uniform rate even to those respondents who had either omitted, to file the appeals against the judgment of referee Court or had failed to prefer cross-objections in the appeals filed by the appellants. The above approach by the learned Judges for exercise of their jurisdiction under Order 41, Rule 33, C.P.C. Cannot be treated as unjustified or irrelevant so as to call for interference by this Court. We, therefore, find no force in the contention of the learned counsel for the appellants that the High Court had no jurisdiction to extend the benefit of higher assessment of compensation for acquired land to land owners/respondents who had failed to file appeals or cross-objections in the appeals filed by the appellants.
9. We now take up the second contention of appellants, which is common in all the appeals. In support of second contention, the learned counsel for the appellants mainly relied on the order passed by the Land Acquisition Collector and contended that the assessment of market value of the acquired land was made by the Collector on the basis of one year average sale price of the land preceding the dates of notifications which was the accepted and acknowledged criteria for assessm ent of compensation for acquired land. It is, accordingly, contended by the learned counsel that assessm ent of compensation for the acquired land by the Collector could not be lightly interfered with by the referee Court or by the High Court. It is further contended by the learned counsel for the appellants that the land acquired in the to notifications referred to above was a waste land used for agricultural purposes, and therefore, the fixation of compensation by the referee Court as well as learned. Judges of the High Court as residential building site was wholly uncalled for.
The learned counsel for the respondents/land owners on the other hand supported the to impugned judgments and contended that the lands which were acquired on to different dates, were potential building site as these were surrounded from all sides by well-developed housing societies and had thus acquired great potential value with the passage of the. It is not disputed by the learned counsel for the appellants that the acquired land was situated in close proximity of Muhammadia Colony, Trust Colony, Officers colony and Quaid-e---Azam Medical College. In fact from the site plan of the area produced at page 278 of the paper book of Civil Appeal No.879 of 1993 by the appellants, it is quite clear that the acquired land was surrounded on all sides by fully developed areas. The acquired land was also situated in close proximity of cantonment area, High Court building, Noor Mahal Road and Circular Road. Even part of some of the rectangles of acquired area were also part of the nearby, residential colony. In these circumstances, even if it is accepted that the property was shown as agricultural land in the Revenue Record it undoubtedly had the great potential value being situated in close proximity of the to well-developed housing societies and being close to the cantonment area as well to the old area of the city.
10. It is now a well-settled law that in assessing the market value of the land, its present use alone is not relevant. The possibility of land being used for a different purpose in future and its potential value on account of its situation near the developed area/land are important factors which the Courts have to keep in view while determining the market value of the acquired land. The market value of land is often described as the price which a willing purchaser is ready to offer for the land to a willing seller, and therefore, one year's average sale price of similar lands in the vicinity preceding the date of notification under section 4 of the Act, cannot be adopted as the sole yardstick for assessing the market value of the acquired land.
11. In the case of Abdur Rauf Khan v. Land Acquisition Collector (1991 SCM R 2164), a learned Bench of this Court after referring to various reported decisions enunciated the following principles for assessing the future prospect of the land acquired under the Act.
"
13. Suffice to observe that in abovecited cases, the following principles of law have been enunciated:-
(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; (i.e)That the market value of the land is normally to be taken as existing oil the date of publication of the notification under section 4(1) of the Act but for determining the same, the price on which similar land situated in the vicinity was sold during the preceding 12 months and no 6-7 years back may be considered including other factors like potential value etc."
In the case of Gunj Khatoon v. Province of Sind (1987 SCM R 2084), this Court while rejecting the assessm ent of compensation for the acquired land made only on the basis of the sales made in the locality, observed that in assessing the market value of the land the potential value of the land should also be kept in view. The observations of this Court were as follows:- "15. Thus, the approach of the High Court in the instant case that the market value of the land for purposes of compensation under the Land Acquisition Act must be determined according to the rates at which sales were made in the locality in question cannot be upheld, as it ignores the fact that for ascertaining the market value of the land its 'potential value' is also a very relevant factor.
16. This brings us to the question as to what are the factors that must be taken into consideration for assessing this 'potential value'. Some guidance on this question is provided by the following observations of, Lord Romer in Gajapatiraju's case (AIR 1939 PC 98):- 'There is not in general any market for land in the sense in which one speaks of a market for shares or a market for sugar or any like commodity., The value of any such article at any particular the can readily be ascertained by the prices being obtained for similar articles in the market. In the case of land, its value in general can also be measured by a consideration of the prices that have obtained in the past for land of similar quality and in similar positions and this is What must be meant in general by the market value, in section 23. But sometimes it happens that the land to be valued possesses some unusual and it may be, unique features as regards its position or its potentialities.
In such a case the arbitrator in determining its value will have no market value to guide him and he will have to ascertain as best as may be from the materials before him. What a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities. For it has been established by numerous authorities that the land is not to be valued merely by reference to the use to which it is being put at the the at which its value has to be determined (that the under the Indian Act being the date of the notification under section 4(1) but, also by reference to the uses to which it is reasonably capable of being put in the future. No authority indeed is required for this proposition. It is a self-evident one.
No one can suppose in the case of land which is certain, or even likely to be used in the immediate or reasonably near future for building purposes but which at the valuation date is waste land or is being used for agricultural purposes, that the owner, however, willing a vendor, will be content to sell the land for its value as waste or agricultural land as the case may be. It is plain that in ascertaining its value, the possibility of its being used, for building purposes would have to be taken into account. It is equally plain, however, that the land must not be valued as though it has already been built upon, a proposition that is embodied in section 24(5) of the Act and is sometimes expressed by saying that it is the possibilities of the land and not its realized possibilities that must be taken into consideration."
In the case of Fazalur Rahman v. General Manager, SIDB (PLD 1986 SC 158), this Court observed that while assessing the compensation for the acquired land, the use to which the land was presently put should not be made the sole criteria for assessment but its potential value should also be kept in view. The following observations from the concurring note of Aslam Riaz Hussain, J. (as he then was) may be quoted herewith advantage:- '
'I respectfully agree with the observations of my learned brother Mr. Justice Burhanuddin Khan (with which Mr. Justice M.A. Zullah has concurred) that:- 'there are other factors which have to be taken into consideration (while determining the value of the land to be acquired) e.g. The land is not to be valued merely by reference to the use to which it is being put at the the at which its value has to be determined, but also by a reference to the used to which it is reasonably capable of being put in future; and the market value is the potential value of the property at the the of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that the.'
2. I may add that this salutary principle is often ignored by the functionaries of the Government while assessing the amount of compensation to be awarded to the persons whose land is compulsorily acquired. The principle that, the use to which the land is capable of being put, to the advantage of the owner, is a factor which ought to be considered by the assessing authority, has been enunciated in a number of cases. For instance in Cedar Rapids Manufacturing and Power Co. v. Lacoste (1), it was held that although any advantage which accrues due to the carrying out of any scheme for which the property is acquired, may be excluded, but while assessing the value of the acquired land, the probable use to which the owner might have put the land, must be taken into consideration. This includes all the advantages which the land possesses, present or future, in the hands of the owner and he is entitled to have the price assessed in reference to these advantages. The same view was taken in;- Lacus Chester Field Gas and Water Board (1909) 1 KB 16; 'Fraser v. City of Fraservile (1917) AC 187; and Baily v. The Isle of Thanet Light Co. (1900) 1 QB 722 In the same strain it was held in Collector, Quetta-Pishin, Quetta v. Habibullah and others (2), that-- ... The learned District Judge was justified in assessing the compensation for this land not merely by reference to the use to which it was being at the the of its acquisition. Its value must be assessed as a building site with all its potentialities for its development in the near future.'
In Province of Punjab v. Muhammad Fazil (1), it has been held, inter alia, that the land is not to be valued merely in accordance with the use to which it is being put but also by reference to the use to which it was reasonably capable of being put.
I would, therefore, like to emphasize that while determining the value of the land acquired by the Government and the price which 'a willing purchaser would give to the willing seller, only the 'past sales' should 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 axe likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases 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 questions of life and death, the Courts rely on oral testimony alone and 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 even 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 declare or show a much smaller amount as 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."
In the case of Malik Aman v. Land Acquisition Collector (PLD 1988 SC 32), the following principles were enunciated for assessing the compensation of the acquired land under the Act:- "4. We have carefully considered the contentions of the learned counsel. This Court has observed in Sub. Haider Zaman and others v. Government of N.-W.F.P. And others (1987 SCM R 465 at p. 467) that matters mentioned in section 23 of the Act as factor to be considered while determining the market value of the property acquired are not exhaustive. In other words factors other than those mentioned in section 23 can also be taken into account for the said purpose.
Although market value of the land is normally to be taken as existing on the date of publication of Notification under section 4(i) of the Act, yet it is common knowledge that for determining the market value the Courts often look at the prices on which similar lands were sold during the preceding 12 months, and similarly in other cases factors bearing on the value of the same land in future e.g. The "potential value" of the property are also taken into consideration. It has been observed in Fazal-ur-Rehman and others v. General Manager, S.I.D.B. And others (PLD 1986 SC 158):-- "There are other factors which have to be taken into consideration e.g. Land is not to be valued merely by reference to the use to which it is being put at the the at which its value has to be determined, but also by a reference to the usage to which it is reasonably capable of being put in future; and the market value is the potential value of the property at the the of requisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that the."
5. It is, therefore, evident that the factors for determination of the market value of the land proposed to be acquired are not restricted only to the the of issuance of the notification under section 4 of the Land Acquisition Act or any period prior to it, but can also relate to the period in future (i.e. To period after the issuance of notification under section 4 of the Act). It is for this reason that the 'potential value' of the land i.e. The use to which it can be put in future, has in a large number of cases been held to be a relevant factor. As such the fact that long period 'has elapsed between the issuance of notification under section 4 of the Act and the announcement of the award coupled with the fact that during that period, the prices of land or the property in question have arisen sharply, is a factor which ought to and should have been taken into account while determining the value of the land in dispute for the purpose of compensating the owner. This view is supported by the observation of this Court in Sub. Haider Zaman and others v. Government of N.- W.F.P. And others 1987 SCM R 465). "
In the case of Pakistan Burmashell Ltd. v. Province of N.-W.F.P. (1993 SCM R 1700) this Court specifically considered the relevant of one year's average of sale price of the land preceding the publication of notification under section- 4 of the Act and held that one year's average sale price cannot be made the sole criteria for determining the compensation for the acquired land. The observations made by this Court in this behalf were as follows:-- "6 We are not persuaded to strike of the award on the rectitude of these submissions. Section 23 makes mention of various matters to be considered in determining the compensation. One of such factors enumerated therein is that the date relevant for determination of market value is that date of the notification under section 4. Not unoften the market value has been described as what a willing purchaser would pay to the willing seller. It may be observed that in assessing the market value of the land, its location, potentiality and, the price evidenced by the transaction of similar land at the the of notification are the factors to be kept in view. One year's average of the sales taking place before the publication of the notification under section 4 of similar land is merely one of the modes for ascertaining the market value and is not an absolute yardstick for assessment. "
In view of the above discussion, we now proceed to consider whether the compensation determined by the High Court for the land acquired under the to notifications dated 4-2-1981 and 25-2-1981 represented a fair assessm ent of the market value of the acquired land.
12. As stated earlier, 44 Acres, 2 Kanals and 6 Marlas of land was acquired through notification dated 29-11-1980 which was published in Punjab Gazette on 4-2-1981 while an area of 7 Acres, 7 Kanals and 17 Marlas was acquired through smother notification which was dated 16-2-1981 but was published in the Punjab Gazette on 25-2-1981. Under section 23 of the Act, the relevant date is the date of publication of notification under section 4 of the Act which in the first case was 4-2-1981 while in the second case it was 25-2-1981. The Land Acquisition Collector in the first, case assessed the value of compensation in respect of 12 Acres, 1 Kanal and 10'Marlas at the rate of Rs.1,85,446.22 per acre and in the case of land acquired under notification dated 25-2-1981 at the rate of Rs.1,89,120 per acre. The, referee Court in the first case enhanced the compensation for acquired land at the flat rate of Rs.1,807.55 per Marla while in the second case compensation was fixed at the rate of Rs.5,000 per Marla. The learned Judges of the High Court in the first case assessed the compensation for the acquired land by enhancing the rate of compensation to Rs.4,666 per Marla while it confirmed the assessm ent of referee Court in the other case ac Rs.5.000 per Marla.
13. We have already given the dates of publication of to notifications in. Pursuance whereof the to awards were made in the above cases. The date of~ publication of notification under section 4 of the Act in the first. Case was 4-2-1981 while the date of publication of notification the second case was 25-2-1981. Since both the notifications were published in February 1981 and the gap between the to dates of notifications is only about 21 days. We are of the view that the market value of the acquired land should have been fixed respect of the land acquired under the to notification.
14. We first take up the case of acquisition of land under the second notification measuring 7 Acres, 7 Kanals and 17 Marlas. The compensation for the land in this case was fixed by the Land Acquisition Collector at the rate of Rs.1,89,120 per acre taking into consideration only the one year's average sale price of land in the area preceding the date of notification under section 4 of the Act.
The referee Court enhanced the rate of compensation for the acquired land in this case to Rs.5,000 per Marla in the light of the evidence produced by the parties before it which was not interfered with by the High Court in appeal. The referee Court while fixing valuation of f the acquired land took into consideration the following documents produced by the parties:--
1. Sale-deed dated 2-12-1981 (Exh. P/1) for 10 Marlas, sold at the rate of Rs.5,500 per Marla;
2. Sale-deed (Exh. P/2) dated 1-4-1980 2 1/2 Marlas of land sold at the rate of Rs.2,400 per Marla;
3. Exh. P/3, copy of sale-deed dated 6-5-1980 sold at the rate of Rs.2,400
4. Copy of sale deed dated 8-2-1984, Exh.P/4, measuring 3 Marlas at the rate of Rs.5,250 per Marla;
5. Copy of sale-deed dated 17-10-1984 for land measuring 7 Marlas sold at the rate of Rs.4,500 per Marla;
6. Award dated 31-8-1983, Exh.R/1, average sale of one year, R.4, R.5.
Out of above mentioned five sales in the adjoining area taken into consideration by the referee Court the last mentioned to sales were dated 8-2-1984 and 17-10-1984. These to sales having taken place long after the date of notification under section 4 of the Act in our view, could not be taken into consideration for assessing the correct market value of the acquired land on the date of publication of notification under section 4 of the Act. We are, therefore, not inclined to take into consideration the to sales dated 8-2-1984 and 17-10-1984 (Exhs. P.4 and 5) respectively, for the purposes of assessing the compensation of. Acquired land. If the abovementioned to sales or the year 1984 are kept out of consideration the average sale price of the acquires t land on the basis of three sales which were in the close proximity of the date of notification comes to about Rs.3,500 per Marla.
15. In the other case, which related to the acquisition of land under notification dated 4-2-1981 the Land Acquisition Collector assessed the compensation at the rate of Rs.1,33,120 per acre for 32 Acres, and 16 Marlas and ks.1,85,446.22 per acre for 12 Acres, 1 Kanal and 10 Marlas on the basis of one year average sale price preceding the dates of to notifications dated 25-11-1979 and 29-1-1981 respectively. The referee Court fixed the compensation for the acquired land at the flat rate of Rs.1,807.55 per Marla on the basis of evidence produced before it. This conclusion was based on about 19 sales which took place between the period from 13-1-1980 to 29-11-1980. The learned Judges of the High Court assessed the compensation for the acquired land in this case at the rate of Rs.4,666 per Marla. There did not exist any, justifiable reason for assessment of different rates of compensation of the land in the to cases when the to notifications under section 4 of the Act were issued in the month of February 1981 with a gap of only about 20 days.
16. The compensation for the acquired land in both the cases was determined by the Land Acquisition Collector only on the basis of one year's average sale price of land in the area, preceding the dates of notifications under section 4 of the Act. The determination of market value of the land by the Land Acquisition Collector not being in accordance with the criteria laid down by the superior Courts for determination of compensation for the acquired land could not be accepted. The referee Court in one case determined the compensation for the acquired land at the rate of Rs.5,000 per Marla while in the other case it, found the market value of Rs.1,807.55 per Marla only. The admitted position is that the acquired land in both cases formed a single compact block in village Hunsra. The dates of notification under section 4 of the Act in the to cases being in the same month and same year with a gap of only 20 days, there was no justifiable reason available for determining the compensation in the to cases at such varying rates. The learned Judges of the High Court worked out the market value/compensation for the acquired land at the rate of Rs.4,666 per Marla on the basis of six registered sale-deeds which were effected between the period from January to September 1980 as well as the capital gain certificates showing payment of capital gain tax on the sales of land Exh. AW 3/1 to AW 6. The average sale price of the land shown in the sale deed (Exhs. AW 2 to 4, AW 6, 7 and 10 relied by the High Court) comes to Rs.2,670.77 per Marla but the learned Judges did not consider this average as the appropriated compensation for the acquired land. They, accordingly, also took into consideration the capital gain certificates, Exhs.AW.3/1 to AW 6. Which showed much higher price of the land in the area.
These capital gain certificates relied by the learned Judges of the High Court though were of the dates later than the dates of notifications in these cases but these were in close proximity to the date of the notification under section 4 of the Act. The certificates were issued between the period from August, 1981 to November, 1981 and one of these certificates is dated 12-7-1982. We may, however, mention here that the value of land mentioned in I the capital gain certificates (AW 3/1 to AW 6) could not be taken to be the true market value of the acquired land for the reasons that firstly, these certificates did not spell out the necessary details of the transactions anti secondly, these transactions related to a fully developed area where all facilities like toad, sewerage, water and light were available while the acquired land was still undeveloped and lacked these facilities.
We have already referred to six sales of land in adjoining areas immediately before the date of notification which were taken into consideration by the learned Judges of the High Court.
According to these sales, the average price works out to Rs.2.670.77 per Marla. We have already mentioned earlier while considering the other set of appeals that the average price of land worked out on the basis of --sales in close proximity of the date of notification in those areas comes to Rs.3.500 per Marla. Since we are of the view that the rates of compensation should have been same in both the cases, we consider that the compensation at the rate of Rs.3,500 would be a fair compensation for the acquired land keeping in view its potential value. We, accordingly, partly allow the appeals and hold that the compensation for the acquired land will be payable at a flat rate of Rs.3,500 per Marla in respect of the entire land under the to notifications dated 4-2-1981 and 25-2-1981. However, the charges for compulsory acquisition, rate of interest, compensation for fruity and non-fruity trees and the houses need no interference. Appeals are, accordingly, disposed of with no order as to costs.