' BASHARAT AHMAD SHAIKH, J.---The dispute raised in the present cross-appeals relates to quantum of compensation payable in lieu of land acquired for Military purposes. Compensation worked out on three years' average was determined at the rate of Rs,1,046.43 but the Collector awarded Rs,2,000 per Kanal. On the initiation of landowners a reference was sent to the Court of District Judge Bagh who enhanced the rate to rupees twenty thousand per Kanal plus the fifteen per cent compulsory charges fixed by law. Since both the parties, namely, acquiring authorities as well as the landowners, were still dissatisfied, two cross-appeals were filed in the High Court. Both the appeals have been dismissed by a Division Bench of the Azad Jammu and Kashmir High Court.
Both the parties have come to this Court for vacation of the judgment of the High Court.
2. Appellants in Civil Appeal No,2 of 1997 are Azad Government of the State of Jammu and Kashmir and Government of Pakistan acting through the Military Estate Officer. They filed petition for leave to appeal which was granted. However, the landowners, Muhammad Sharif and seven others, filed a direct appeal instead of filing a petition for leave to appeal. When the appeal came up for hearing the learned counsel for the appellants, Sardar Muhammad Azad Tariq, was asked as to how a direct appeal, without grant of leave was maintainable. In reply he relied on clause (d) of subsection (11) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act. Subsection (11) reads as follows:--- "(11)An appeal shall lie to the Supreme Court of Azad Jammu and Kashmir from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir:---
(a) .
(b) .
(c) .
(d) if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below;
(e) .
(f) ."
Although it is correct that the subject-matter of the dispute in the Court of first instance and also in appeal was more than fifty thousand rupees but the Constitutional provision extracted above is applicable only if the decree appealed from has varied or set aside the decree of the Court immediately below. The abovementioned provision has no application to a decree of affirmation.
This legal proposition was judicially settled in judgment of this Court pronounced in Azad Jammu and Kashmir Government through, Chief Secretary v. Sikandar Khan, Contractor and others 1991 CLC 561. It was observed in that judgment that: "In the present case, as already noted, decree passed by the learned District Judge was affirmed by the High Court. The law is clear that clause (d) reproduced above does not apply to judgments of affirmation even if the amount of value of the subject-matter is more than Rs,50,000. The appeal is, therefore, liable to be dismissed on this ground also."
' In the present case the High Court has affirmed the decree passed by the Court below, therefore.
The Constitutional provision under reference is not applicable to the present situation. Realising the mistake committed by him, Sardar Muhammad Azad Tariq, subsequently moved an application that the memorandum of appeal may be treated as petition for leave to appeal. This prayer is in order and we have no hesitation in accepting the petition and we, therefore, treat the memorandum of appeal as a petition for leave to appeal and, keeping in view points involved in the case, we convert the petition as an appeal and proceed to decide it accordingly.
3. Turning to facts of the case, land measuring 49 Kanals and 12 Marlas situated in village Padhar Muhammad Ali, Tehsil Bagh was acquired for Military purposes. The award was announced on 6th of July, 1978. Market rate was determined to be Rs,2,000 to which an amount @ Rs,15% was to be added for compulsory acquisition. When the matter was referred to the District Judge Bagh in 1984, he enhanced the rate of compensation from Rs,2,000 per Kanal to Rs,20,000 per Kanal by the decree passed on 8th of August, 1994. Both sets of appellants were dissatisfied by the decision of the District Judge and challenged it by filing appeal before the High Court. As already stated the High Court has dismissed both the appeals. Both the sets of appellants are not satisfied. The Governments of Pakistan and Azad Jammu and Kashmir want that the rate fixed by the Collector, namely, Rs,2,000 per Kanal may be restored while the demand of the landowners is that the rate of compensation may be raised from Rs,23,000 to Rs,1,05,142.57 which, it is claimed by the landowners, was the market value at the relevant time.
4. The High Court has observed in the judgment under appeal that through sale-deed Exh.P.B.
Executed on 2nd of March, 1976, land was sold at about Rupees twenty thousand per Kanal. It was also observed that sale-deed Exh.D.A., which was placed on the record by Government of Pakistan, also showed that market rate was about rupees twenty thousand. On the basis of these two sale- deeds, Exh.P.B. And Exh.D.A., the learned Judges upheld the conclusions reached by the learned District Judge that rate of compensation was rupees twenty thousand per Kanal plus compulsory acquisition charges.
5. Sardar Muhammad Azad Tariq submitted that the High Court committed mathematical error in determining the rate on which the land was sold through the sale-deeds forming part of evidence.
One sale-deed was executed on 20th of March, 1978 through which land measuring seven Marlas was sold for a sum of fifty thousand rupees which means that land was sold for Rs,7,143 per Marla.
Land measuring 5 Marlas was sold for rupees six thousand through sa1e-deed executed on 2nd of March, 1976 which worked out as Rs,1,143 per Marla. According to his calculations the per Marla average comes to Rs,4,143 or Rs,82,860 per Kanal. It was vehemently contended by Sardar Muhammad Azad Tariq that sale-deed of 20th of March, mentioned above executed subsequent to the announcement of the award which showed upward trend, should have been legally taken under consideration. He relied on some reported cases in support of his contentions. On this point he relied on N.-W.F.P. Through Collector, Abbottabad Land Acquisition and others v. Haji Ali Asghar Khan and others 1985 SCMR 767 in which the facts were that the notification of acquisition was issued in 1978 while the award was made some two years later. There was upward trend in the prices of the land daring the intervening period. The Supreme Court determined the value of the land for purposes of compensation on the basis of the upward trend mentioned above.
6. The learned counsel for the landowners also relied on Faiz Akbar Khan and others v. Azad Government and others 1996 SCR 132 in which this Court has laid down that while assessing the market value, land is not to be valued merely by reference to the use for which it was being made at the relevant time but also the use it could reasonably be put in future. The same view was expressed by the Supreme Court of Pakistan in another case relied upon by the learned counsel which is reported as Fazal-ur-Rehman and others v. General Manager, S.I.D.B. And another PLD 1986 SC 158.
7. On the other hand Raja Muhammad Hamt Khan, the learned counsel for the Governments of Pakistan and Azad Jammu and Kashmir not only opposed the prayer that the rate of compensation fixed by the District Judge which was subsequently upheld by the High Court may not be further enhanced but also vehemently contended that the compensation fixed by the Collector in the award pronounced by him was in fact the correct compensation. He contended that sale-deeds of small pieces of land cannot legally form basis of determining the value of large tracts of land. He further contended that market value is to be determined on the basis of the value which existed at the time of publication of the notification. He also submitted that fixation of market value of the property and compensation payable in lieu of acquisition must be based on judicial findings inevitably depending on legal evidence. He also submitted that mere production of documentary evidence was not enough and it is incumbent for the landowners to examine some parties to the same transactions. Raja Muhammad Hanif Khan relied on the following reported judgments.
8. In Koyappathodi M. Ayisha Umma v. State of Kerala 1992 PSC 1280 Supreme Court of India held that small piece of land did not form any reasonable basis of guide for determining value of large tract of land. The Supreme Court of India also considered the fact that the acquired lands were possessed of potential value as building sites as the lands were situated in the city itself and there was all round development around the lands. In Habibullah Khan and 4 others v. Collector, Quetta PLD 1984 Quetta 11 it was held that it is for the claimant to lead legal evidence to show that rates were inadequate and compensation was unsatisfactory. It was also held that finding on market value of property must inevitably depend on legal evidence. In Rathamasari and others v.
Secretary of State AIR 1923 Mad. 332 it was held that the market value of big piece of land cannot be determined from small plot. In Manmatha Nath Mullick v. Secretary of State AIR 1924 Cal. 574 it was held that market value of the land means the price which would be obtainable in the market for a concrete parcel of land with its particular advantages and its particular drawbacks. It was held in Choithram Begraj v. Secretary of State AIR 1931 Sindh 52 that the market value of the land to be acquired is to be considered at the date of the publication of the notification under section 4. It was also observed that the value of the property is to be determined with reference to the future utility, but it must not be entirely conjectural. In Land Acquisition Collector-II Tarbela Dam Resettlement Organisation, WAPDA and 2 others v. Haji Hakim Khan and 41 others PLD 1976 Pesh. 50 it was laid down that sales taking place after the publication of notification under section 4 may be considered if their bona fides were established by producing evidence. It was held that it can be done by producing parties to these transactions.
9. While going through the record we have found that in the application filed by Muhammad Sharif and others, the landowners, before the Collector of Land Acquisition for filing a reference before the District Judge it was stated in para. 2 that they had demanded compensation at the rate of twenty two thousand rupees per Kanal and had also adduced proof in support of their above-mentioned claim but the Collector wrongly fixed two thousand rupees per Kanal as the rate of compensation.
In the prayer clause it was specifically requested that compensation may be paid at the rate of twenty two thousand rupees per Kanal. However, during proceedings before the Court an application for amendment was moved stating that it had inadvertently been stated that compensation may be fixed at twenty two thousand rupees per Kanal and that permission may be granted to substitute rupees one lac twenty two thousand instead of rupees twenty thousand. This application was rejected by the learned District Judge on 27th of December, 1988. Although it was stated in para. 3 of the application filed before the Collector Land Acquisition that in the same vicinity lands situated on the road side were being sold at rupees six thousand per Marla but it was not stated that the acquired land was also on the road side. Of vital importance is the fact that the demand made in the prayer clause was that compensation be paid at the rate of twenty two thousand rupees per Kanal. In light of this fact the demand subsequently raised by the appellants that the compensation may be fixed at rupees one lac twenty thousand per Kanal were clearly not permissible under law. The District Judge had already fixed the amount of compensation at twenty thousand rupees per Kanal to which fifteen per cent compulsory acquisition charges have to be added. This amount is approximately the same as has been demanded by the landowners.
10. Apart from that it is well-settled that the price of small pieces of land cannot form basis of market value of big tracts of land. In both the sale-deeds produced by the landowners small pieces of land (7 Marlas and 5 Marlas) were sold. The price paid for them is not relevant for a big tract of 49 Kanals and 12 Marlas.
11. Even otherwise, if land is sold for a higher price due to its peculiar location it does not mean that all lands in the same vicinity must also be assessed at the same rate. For doing so it is the duty of claimant to prove that the acquired land can also be put to the same use. For instance if a piece of land is purchased for construction of shop, lands which are in the same vicinity cannot fetch the same price unless they are so situated that shops can also be constructed there. Muhammad Ashraf, Muhammad Akbar Khan and Muhammad Aziz Khan, the witnesses produced by the landowners, stated that the land in dispute was one furlong away from Haari Gall Bazar. They did not state that the acquired land was situated in a Bazar or that it could be used for commercial purposes. One of the landowners Muhammad Maqbool Khan appeared as a witness but did not state that the land could be put to commercial use. He admitted in cross-examinations that the land was situated at a distance of one and a half furlong from the Harri Gall Bazar.
12. Notification under section 4 in respect of the land under dispute was issued on 28th of August, 1977. On 2nd of March, 1976 land measuring 5 Marlas was also sold through Exh.P.B. Produced by the landowners for rupees six thousand. The price comes to Rs,1,143 per Marla. The amount determined by the District Judge and upheld by the High Court is almost the same as is incorporated in Exh.P.B.
Although it was only a small piece which was sold through the aforementioned sale-deed. The principle of law is that transaction taking place after the notification under section 4 must be proved to be bona fide and the onus to prove it is on the landowners. Sale-deed Exh.P.W. By which land measuring 7 Marlas is stated to have been sold for rupees fifty thousand, was executed more than six months after the notification. We have gone through the evidence and find that about Exh.P.W. There is no convincing evidence on the record that it was a bona fide transaction.
13. The appeal filed by the Government of Pakistan and Azad Jammu and Kashmir also has no force because nothing has been brought to or notice to show that the compensation fixed by the District Judge is a result of any wrong legal approach or it is otherwise suffers from any misreading of evidence.
14. To sum up when the proceedings for determining the compensation were initiated, three years average price was determined at Rs,1,046.43 per Kanal. The landowners demanded from the Collector that they should be paid compensation at the rate of rupees twenty two thousand but the Collector only raised the rate from Rs,1,046.43 to Rs,2,000. In the reference filed before the District Judge the landowners again demanded compensation at the rate of Rupees Twenty two thousand. They have already been allowed approximately the same amount. Apart from that, as already seen, the principles of law applicable to the present matter also lead us to the conclusion that the rate of compensation has been correctly fixed in accordance with law.
' We, therefore, do not find any merit in both the appeals and order their dismissal.