ZAFAR PASHA CHAUDHARY, J.---This judgment will dispose of the following eight matters i,e,:
(i) Abdul Aziz v. Land Acquisition Collector, R.F.A. No,19 of 1987;
(ii) Mst. Muhammad Jan v. Land Acquisition Collector, R.F.A. No, 20 of 1987;
(iii) A. Khaliq and others v. Land Acquisition Collector, R.F.A. No,21 of 1987;
(iv) Mst. Begum Jan and others v. Land Acquisition Collector, R.F.A. No,22 of 1987;
(v) Sabir Hussain and others v. Land Acquisition Collector, R.F.A. No, 23 of 1987;
(vi) H. Ghulam Hussain and others v. Land Acquisition Collector, R.F.A. No, 24 of 1987;
(vii) Ali Muhammad v. Land Acquisition Collector, R.F.A. No, 25 of 1987:
(viii) Mst. Zuhra Bi and others v. Land Acquisition Collector, R.F.A. No, 26 of 1987.
2. As per Notification under section 4 of the Land Acquisition Act dated 23-9-1981 the land subject- matter of the afore-referred eight appeals was acquired for the construction of New Central Jail, Rawalpindi and the award was announced on 21-3-1982. The appellants being not satisfied with the award tiled references in the Court of learned Senior Civil Judge, Rawalpindi on 2-5-1982 under section 18 of the said Act.
3. The relevant factors relating to filing of the award have been enumerated in detail by the learned Senior Civil Judge. The references were however, resisted by the Land Acquisition Collector and on the pleadings of the parties ten issues were framed. Out of them no evidence was produced on Issues Nos.1, 2, 4, 5 and 6, therefore, they were decided against the respondent because the same had arisen on account of objections raised by the respondent. The Issue No,3 with regard to ownership of the appellants in respective villages and their locus standi to file the references, was decided in favour of the appellants who were petitioners before the learned Senior Civil Judge. The Issue No,7 was disposed of on the ground that predecessor of the learned Senior Civil Judge had already overruled the objection of the respondent.
4. The main issue of course is Issue No,8 which reads as under:-- "What was market value of the land acquired in all the petitions at the time of the notification under section 4 of the Land Acquisition Act? OPP."
5. The appellants produced oral as well as documentary evidence in support of their claim. Four witnesses were produced by them namely Habibur-Rehman A.W.-1, Muhammad Aslam A.W.-2, Haq Nawaz A.W.-3 and Muhammad Yaqub one of the appellants appeared as A.W.-4. They also produced the copies of the sale deed Exh.A-1 and Exh.A-3 to Ddi.A-11. The copies of the sale deeds Exh.A-1 and Exh.A-5 however, pertain to the same sale deeds evidenced by Exh.A-1 and Exh.A-3 respectively. These exhibits were proved through relevant oral evidence.
6. The main contention raised by the learned counsel for the appellants was that the disputed land is situated on a metalled road, having all the facilities like electricity, water and telephone etc. And according to the oral evidence produced the value of the suit property range between Rs,15,000 to Rs,1,00,000 per Kanal respectively. The eight sale deeds produced by the appellants are as follows:- - Description of document Date of sale Rate on which sold Exh.A-1/A-4. 04-10-1981 Rs,40,000.00 per Kanal Exh.A-4/A-5. 23-06-1981 Rs,32,000.00-- do --- Exh.A-6. 02-07-1981 Rs,26,363.60-- do --- Exh.A-7. 13-06-1981 Rs,30,000.00-- do --- Exh.A-8. 13-06-1981 Rs,30,000.00-- do --- Exh.A-9. 09-05-1981 Rs,38,548.20-- do --- Exh.A-10. 24-04-1,981 Rs,35,483.80-- do --- Exh.A-11. 09-03-1981 Rs,22,222.00-- do --
7. By adding the price per Kanal in each sale deed which ranges in-between Rs,22,222 to Rs,40,000 respectively, the average comes to about Rs,32,000 per Kanal.
7-A. As against that the respondent examined Muhammad Sabir Patwari R.W.1 who proved statement of one yearly average sale price of Maira, Lapara, Banjar Qadeem and Ghair Mumkin kinds of land in shape of Exh.R-1, Exh.R-2, Exh.R-3 and Exh.R-4. The price in the award was in fact based on his statement.
8. As noted above the land was acquired on 23-9-1981, therefore, the sales which took place in that year would be relevant and the average is to be determined while taking the same into consideration. As stated by the witnesses produced by the appellants and Muhammad Sabir Patwari R.W.-1 also admitted that the land was situated near a metalled road and had even level (sic). Barani College had been constructed just in front of the land in dispute. It was also admitted that the sales referred to Exh.R-1 to Exh.R-4 were situated far away from the land in dispute. It was also admitted that the boundary wall of Rawalpindi Cantonment was not more than 3 to 4 kilometres from the land in dispute. More important factor was that the surroundings of the disputed land contained a number of houses constructed thereon and they were populated. The area adjoining the main road had practically acquired residential status.
9. Apart from the aforesaid various averments made before the learned Senior Civil Judge, a number of judgments were cited and today as well, the learned counsel for the appellants has referred to some authorities and case-law which include PLD 1970 Lahore 463 laying down that potential value and not actual value has to be considered. On similar grounds PLD 1986 Kar. 164 was cited. A number of judgments on the question that potentialities must be considered were cited by the learned counsel i,e, AIR 1939 Privy Council 98; PLD 1988 SC 32; 1992 SCMR 1245; 1980 SCMR 795; PLD 1968 Lahore 360 and then PLD 1996 Peshawar 22. Then in support of the contention that price and market value does not mean the one and the same thing, PLD 1991 Lah. 76 and PLD 1997 Peshawar 19 alongwith 1978 SCMR 5 and PLD 1951 Peshawar 14 were cited to state that the average determined by the Revenue Authorities is not indicative of the market value.
10. The learned counsel for the appellants argued that in addition to the averments already raised before the learned Senior Civil Judge, the fact that the land in dispute was situated in approximity of the land of New Lalazar, P.I.A. Colony, High School, Barani College and Hostel and others. It was, therefore, argued that in 1982 Rs,20,000 were granted as a compensation of the similar land.
11. We have gone through the evidence produced by the parties, both oral as well as documentary, and have also considered the arguments raised in support of the appeals. We have also gone through the reasons assigned by the learned Senior Civil Judge on references made by the appellants through the impugned order dated 14-2-1987.
12. It is true that on the basis of various documents relied upon by the appellants the average price of the land exactly comes to Rs,31,831 per Kanal but the fact remains that all these pieces of land had been sold for construction of residential houses and were small pieces. Obviously, if a small piece of land located by the side of a metalled road is sold for the purpose of construction of a house the same will fetch much more price but the same price cannot be made basis to assess the value of the remaining land which is not located by the side of the road. Usual mode of determining the price while passing an award is average of yearly price of similar land sold in the locality, therefore, the compensation was fixed in accordance with the statement of one yearly average price. It is, therefore, argued on behalf of the respondent that the award did not suffer.
From any illegality which could be treated as unjust or improper and the compensation should have been allowed on the basis of the same as it was the usual average price of the land in the area. The learned counsel for the respondent, however, has ignored one very important aspect of the case that compensation has to be awarded by keeping in view the value of the land which may, on account of certain circumstances, be different from the average price of the land. The average price of the land as determined through award may be right but in order to compensate the appellants the value of the land which is acquired from them has to be kept in mind and that should be made basis. We find that admittedly the land is situated by or near the metalled road, in the vicinity important residential buildings and other institution have been constructed which existed at the time of acquisition. This development in the area undoubtedly enhanced the value of the land acquired by the respondent. The learned Senior Civil Judge while adjudicating upon the references rightly took into consideration the above facts and thereafter, correctly observed that the area had attained the position of a predominantly residential area, therefore, the average market value should have been made basis of compensation. As to what should be the market value, the findings of the learned Senior Civil Judge that the same could not strictly be fixed on the basis of past one year average price but the appreciation of the price during the year on account of attaining a new shape of the land in the area should be kept in mind. As to what would have been the market value of the land at the relevant time i,e, year 1981-82 it would be more than difficult to assess the same. We are, therefore, constrained to accept the market value assessed by the learned Senior Civil Judge because the same was done after applying judicial mind to the prevailing relevant factors. The learned Senior Civil Judge after making assessment fixed the value as under:- Lapara Rs.9,000.00 per Kanal Maira Rs.12,000.00--do-- Banjar Qadeem Rs.3,472.80 --do-- Chair Mumkin Rs.4,438.40 --do-- He accordingly while recording his findings under Issue No,10 fixed the above titled price for award of compensation.
13. Although we are in agreement with the learned Senior Civil Judge that the market value prevailing at the relevant time should be the basis to determine the compensation, yet we are not satisfied with the difference of price of different categories of land from the above data wherein Lapara, Maira and Banjar Qadeem have been assessed to Rs,9,000, Rs,12,000 and Rs,3,472.80 per Kanal respectively. The aforesaid average of the land is relevant for agricultural purposes. Say for example, Lapara land or Maira land are more expensive because both are cultivatable and suitable for different kinds of crops, therefore, they are assessed at a higher value but by keeping into consideration only their productive value for agriculture. But if the price of the land in question is being assessed on the ground that the same has become attractive and its potential for residential purposes stands admitted then to raise construction of houses or any other premises the distinction of the land as Lapara, Maira or Banjar Qadeem would become meaningless. It would, therefore, be inappropriate to classify these lands differently because if a similar piece of land, may be it is Lapara, Maira or Banjar Qadeem, is sold for the residential purposes and only for that reason the market price is being awarded then an intending purchaser for (sic) would not make any distinction on the basis of its category as Lapara, Maira or Banjar Qadeem. The relevant factors would be its location or situation. The land may be Lapara, Maira or Banjar Qadeem; all the three would go for construction, therefore, distinction of price or its value as specified by the learned Senior Civil Judge does not appear to be proper or justifiable. We accordingly treat all these lands, may be Lapara, Maira or Banjar Qadeem as similar and accordingly order that in respect of all these three categories of land Rs,12,000 per Kanal will be awarded as compensation.
The same will be paid by the respondent to the appellants after deducting the amount, if any already paid.
14. While coming to Ghair Mumkin land, the compensation has been awarded as Rs,4,438.40 per Kanal. Ghair Mumkin land is the one which is not fit for cultivation, therefore, its price compared to the cultivatable land is always far less. However, this category has furtheron a large number of subcategories e.g. The land can be Ghair Mumkin being, Ghair Mumkin Chappar, Ghair Mumkin Kowan, Ghair Mumkin Bhatta etc. If this land is Ghair Mumkin and its reason for being the same is also recorded then it can be easily determined whether the same is suitable for raising construction or not e.g. If the land is Ghair Mumkin Abadi or Ghair Mumkin Haveli then in that event it is not available for cultivation but for grant of compensation of the land in the light of the criterion enumerated above, Ghair Mumkin land cannot in any manner be treated or evaluated as inferior to other categories of land. As we do not have complete record before us, we therefore, cannot find out as to what type of Ghair Mumkin land is subject-matter of compensation. However, to provide a guideline to determine the compensation it is held as follows:--
(a) If it is Ghair Mumkin of the type which is suitable to raise construction then the respondent will provide compensation equivalent to the price fixed as compensation with regard to the above- noted three categories of land,
(b) If the land is Ghair Mumkin whereon no construction can be raised or unsuitable for building a house or any similar structure then of course the amount of compensation already prescribed i,e, Rs,4,438.40 per Kanal will be given to the concerned claimants; and
(c) If the Ghair Mumkin land is of a type which is neither suitable for construction nor for agricultural purposes nor can be put to any other use then the price already fixed by the Land Acquisition Collector would be just and proper compensation.
15. All the eight appeals are therefore, disposed of with the above described enhancement of compensation in respect of Lapara and Banjar Qadeem i,e, the 'compensation amount has been raised from Rs,9,000 to Rs,12,000 and from Rs,3,472.80 to Rs,12,000 per Kanal respectively. The compensation as regards Maira land i,e, Rs,12,000 is upheld and maintained. The land falling in category Ghair Mumkin the compensation shall be reassessed after determining the reasons of its being Ghair Mumkin as detailed supra and compensation shall be given accordingly. The appellants shall be entitled to Rs,15% compulsory charges as well.