BASHARAT AHMAD SHAIKH, J.-- These two cross-appeals relate to rate of compensation for land acquired by the Government for Upper Chatter Housing Scheme. The Collector assessed the market value of the land at the rate of rupees one lac twenty six thousand per Kanal but the affected persons, appellants Muhammad Miskeen and others, claimed that the market value of the land was rupees six lacs per Kanal. The District Judge upheld' the rate determined by the Collector and rejected the reference filed by the affected persons. The High Court partly accepted the appeal filed by the affected persons and fixed rupees three lacs as the market value per Kanal besides fifteen per cent. Compulsory acquisition charges. Both the parties, the Government as well as the affectees, have filed separate appeals after obtaining leave of the Court.
2. A housing scheme known as the Upper Chatter Housing Scheme was approved by the Government for which land measuring 423 Kanals was acquired in 1979. The aforesaid housing scheme is located in Upper Chatter, which is part of village Chatter Domel within the Municipal Limits of Muzaffarabad. It appears that when large tracts of land were acquired for Upper. Chatter Housing Scheme a piece of land belonging to Muhammad Miskeen and others situated in village Ambor, which adjoins village Chatter, was physically taken possession of, by the Public Works Department but was not acquired. This piece of land measures three Kanals and nine Marlas and is under survey No,582. As stated, owners of the land under reference made representations to the Government praying that they may be paid compensation but their efforts did not bear fruit.
Ultimately they approached the learned Mohtasib who inquired into the matter and issued a direction on 15th April, 1992 that land measuring three Kanals nine Marlas under survey No,582 situated in village Ambor may be acquired by issuing a notification under the Land Acquisition Act.
This direction led to acquisition proceedings mentioned above.
3. The learned counsel for Muhammad Miskeen and others, Syed Mushtaq Hussain Gillani, vehemently contended that the market value of the land in dispute works out at rupees six lacs per Kanal in light of the evidence produced by his clients. He submitted that the land in dispute is part of the Upper Chatter Housing Scheme where price of one Kanal plot is not less than six lacs per Kanal. He relied on the oral and documentary evidence produced by his clients. Documentary evidence consists of three sale-deeds, Exhs.PA, PB and PC. The learned counsel relied on the cases reported as Faiz Akbar Khan and others v. Azad Government and others 1996 SCR 132 and Azad Government and 2 others v. Mst. Razia Farooqi and others 1996 SCR 136 in which it was held by this Court that while assessing the market value of the acquired land the use to which it can reasonably be put in future has also to be considered. He also relied on the following cases in support of his contention. Government of Pakistan v. Humid Akhtar PLD 1988 SC(AJ&K) 6 in which the price of small residential plots was duly considered while assessing the market value of the land in dispute which itself consisted of small residential plots in a Mohallah of Kotli City. Comdr. Faiz Ellahi and 3 others v. Multan Improvement Trust, Multan and another 1992 CLC 267 in which it was held by the Supreme Court of Pakistan that Court has power to examine the inflationary trend and depreciation in currency. Islamia University, Bahawalpur through its Vice-Chancellor v. Khadim Hussain and 5 others 1990 M LD 2158 in which a Division Bench of the Lahore High Court considered a sale-deed in respect of agricultural land in the contiguous chak while determining the market value of the agricultural land. Haji Muhammad Yaqoob and another v. Collector Land Acquisition/Additional Deputy Commissioner, Peshawar 1997 SCM R 1670 and Province of Punjab through Collector, Bahawalpur and another v. Abdul Majeed and 98 others 1997 SCM R 1692. It was held in both the cases that one year's average sale price in the relevant vicinity is only one of the relevant factors for consideration in determining the market value of the acquired land and if there is other evidence on record to establish potential value of acquired land at the higher rate it has to be duly considered.
4. Kh. Atta-Ullah, the learned Additional Advocate-General, arguing on behalf of the Azad Government and other functionaries, vehemently contended that under section 23 of the Land Acquisition Act the market value of the acquired land at the date of publication of notification under section 4 has to be taken into account. He stated that land sold through Exh.PA was a small plot which was sold sixteen months later and, therefore, could not be brought under consideration.
He submitted that land sold through Exh.PB is meant for a Petrol Pump which is a commercial use while the land in dispute is adjacent to the Upper Chatter Housing Scheme. He submitted that Exh.PC was not relevant because it was executed two years after the notification under section 4 and relates to Chela Bandi which is distant from Ambor where the land in dispute is situated. He submitted that land measuring five, marlas only was sold through this sale-deed which is not relevant for bigger tracts of land. It was vehemently contended by the learned Additional Advocate-General that price of the disputed land has increased many times due to the setting up of the Upper Chatter Housing Scheme and if there had been no mistake the owners have been paid compensation assessed in 1979 which was in significant amount as compared to the compensation assessed by the Collector at the rate of rupees one lac twenty six thousand. The learned Additional Advocate-General relied on the case reported as Muhammad Sharif and 7 others v. Azad Government and another 1998 CLC 2052 in which it was laid down as follows.-- "The principle of law is that transaction taking place after the notification under section 4 must be proved to be bonafide and the onus to prove it is on the landowners. Sale-deed Exh.PW 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.PW there is no convincing evidence on the record that it was a bona fide transaction".
5. The learned Additional Advocate-General also vehemently contended that all the three sale- deeds Exhs.PA, PB and PC cannot be considered because the persons who executed them have not been produced as witnesses to find out whether the sale was bona fide or not.
6. Adverting to the evidence, it may be pointed out that it was mentioned in the reference filed by Muhammad Miskeen and others that the land in dispute is situated in Upper Chatter Housing Scheme but from the record it transpires that the land in dispute is not situated in village Chatter but is situated in village Ambor. In his Court statement Abdul Hamid, one of the witnesses produced by Muhammad Miskeen and others, stated that the land in dispute was 10 to 20 yards from Upper Chatter Housing Scheme. He also stated that the land is adjacent to road and school. Another witness Altaf Ahmad also stated about the location of the land in dispute that the land was adjacent to the Upper Chatter Housing Scheme. It follows that the land in dispute is not in the thick of the Housing Scheme but is on its periphery. Another fact which needs to be pointed out is that Muhammad Miskeen and others have filed appeal in this Court for upward revision of the compensation and they are demanding rupees six lacs per Kanal but when Muhammad Miskeen appeared in the Court he stated that the price of land in Chatter Housing Scheme was rupees four lacs per Kanal.
7. Exh. PA is .a sale which was executed on 8th November, 1993 while notification under section 4 was issued on 21st July, 1992 which means that Ex. PA was executed sixteen months after the notification. Through this sale-deed Umer Din S/o Faqir Muhammad sold land measuring sixteen Marlas situated in village Chatter Domel to one Muhammad Miskeen S/o Hashim Ali for an amount of rupees five lacs thirty five thousand. It is stated in the sale deed that the land sold through it was not part of any Government scheme which means that it is not in the Upper Chatter Housing Scheme. Admittedly land in the Housing Colony has more value than out side it. As already noted, according to Muhammad Miskeen himself, the land in the Chatter Housing Colony was selling at rupees four lacs. In this view of the matter it is significant that a sum of ruppes five lacs thirty five thousand was paid for sixteen Marlas of land which was admittedly of lesser value than land in Upper Chatter Housing Scheme. As mentioned above it has been held in Muhammad Sharif's case that when a sale-deed executed after the notification under section 4 of the Land Acquisition Act is produced for being considered while determining the rate of compensation it is incumbent to prove that the sale-deed was a bona fide. It was also held that burden of proving bona fides was on the landowner. In the present case no such attempt has been made. Muhammad Miskeen was particularly asked in cross-examination as to whether the executant of Exh.PA was alive and he replied in the affirmative but he was not produced to prove bona fides. It was also pointed out in the cross-examination that price of the land was not paid in presence of the Sub-Registrar. We have gone through Exh.PA and find that even part payment was not made before the Sub- Registrar and it is recited in the sale-deed that sum of rupees five lacs thirty five thousand had already been received before execution of the sale-deed. In our opinion it has not been proved that the price mentioned in Exh.PA, executed sixteen months after the date of notification under section 4, was in fact paid, the said sale deed has to be excluded from consideration.
8. Exh.PB was registered on 28th June, 1992, just before the issuance of notification under section 4.
Through this sale-deed land measuring three Kanals situated in village Chatter Domel was sold to the department known as "Behbood Fund and Group Insurance Trust for Non-Gazetted employees of the Azad Government of Jammu and Kashmir" for sum of rupees eighteen lacs. This is a genuine document because it was executed before the notification under section 4 and also because money has been paid out of welfare and group insurance fund administered by the Government.
However, land sold through this sale-deed has nothing in common with the land in dispute. The reason is that the land sold through Exh.PB is situated on the National Highway leading to Rawalpindi, a fact which is duly mentioned in the judgment of the High Court. Contents of Exh.PB also contain specific recital that it is on the National Highway. It is stated that a Petrol Pump has been installed over the land sold through this sale-deed. The Petrol Pump is adjacent to commercial banks and is located in the posh area of Muzaffarabad city while the land in dispute is situated in village Ambor. Therefore, sale-deed Exh.PB cannot be considered for determining compensation in the present case.
9. Exh.PC was registered on 14th June, 1994 almost two years after notification under section 4.
Under the said sale-deed 'land measuring five Marlas situated in village Chela Bandi was sold for a sum of Rupees one lac. Based on this sale-deed price of land comes approximately to rupees four lacs per Kanal in Chela Bandi which is situated in northern periphery of Muzafarabad city. Piece of land sold through this sale-deed is only five Marlas which as is well-settled, is not an accepted basis for determining compensation of larger tracts of land. Another factor is that it was executed two years after notification under section 4 in respect of the land in dispute but there is nothing on record to show that it was a bona fide transaction. On this point we have already referred to Muhammad Sharif's case.
10. The High Court while accepting the appeal filed by Muhammad Miskeen and others, enhanced the rate of compensation from rupees one lac twenty six thousand to rupees three lacs per Kanal.
The relevant observations may be reproduced below:-- "The question for determination now arises as to how much difference in value of the land would be or should be under these circumstances? The land in dispute has remained with the acquiring department since passing the first award in 1979. The owner of the land has not derived or taken any benefit from the land, as against that the acquiring agency has allotted the land in plots for construction purposes to different allottees. Thus, the land though brought under the use by the acquiring agency, could not be notified nor awarded, either due to inadvertence, negligence or whatever the cause may be, but it was treated and used in the similar way as other land acquired through the proper award. Had the land been awarded then the price of the land would have been the same as fixed for other land. But the fact remains that the owners did not use the land, they are not paid the price, they had to undergo the litigation for the land or for its compensation and it was due to the litigation that the land is awarded. Had they been paid in time, they could have utilized the amount. The rupee since 1979 has devalued exorbitantly and the cost of living has abnormally increased. Keeping this in view, the proper course would be to adopt a moderate course. The course would be based on the principle of {{URDU TEXT}}. Thus, half of the value of the land transferred through Exh.PB and Exh.PA, which comes to rupees three lacs per Kanal besides compulsory acquisition charges, is the proper and just value of the land.
11. It will be seen that the High Court brought under consideration Exhs.PA and PB. Exh.PB in respect of the Petrol Pump which is on the National Highway and this fact was mentioned in para. 6 of the judgment of the High Court. Still the High Court made it a basis for determining compensation in the present case which is an obvious error. Apart from that, the principle of is not applicable to the present case because price has to be determined on the basis of evidence produced by the parties in order to determine the market value. Thus, the appeal filed by the Government has force and the judgment of the High Court has to be vacated.
12. It also follows from the above that the appeal filed by Muhammad Miskeen and others also has no merit. The rate of compensation awarded to them by the High Court has turned out to be unsustainable, therefore, its further enhancement is out of question. As already seen Muhammad Miskeen and others have not produced evidence to substantiate their claim.
13. Therefore, Civil Appeal No,81 of 1999 filed by Muhammad Miskeen and others is dismissed while Civil Appeal No,82 of 1999 titled Azad Government and others v. Muhammad Miskeen and others is accepted and the judgment of the High Court is vacated. The result is that the judgment passed by the District Judge shall stand restored.