MUHAMMAD YUNUS SURAKHVI, J.----This appeal is directed against the judgment and decree passed by the High Court on 30-3-2000 whereby the appeal filed by respondent, herein, was accepted and the market value of the land acquired, as determined by the Collector Land Acquisition, stood restored.
2. The precise facts, forming the background of the present appeal, are that land measuring 9 Kanals and 8 Marlas, situate in village Pettikha, Tehsil Muzaffarabad, was acquired by the Government of Azad Jammu and Kashmir for Public purposes. The Collector Land Acquisition announced the award, whereby the market value of the land acquired was fixed as Rs.47,040 per Kanals. Ch. Salam Din, appellant herein, filed a reference before the Collector Land Acquisition which was sent to the District Judge Muzaffarabad who made it over to Additional District Judge Muzaffarbad for its disposal. The trial Court after the conclusion of the reference enhanced the compensation of the land to the tune of Rs.70,000 per Kanal alongwith 15 % compulsory acquisition charges by accepting the reference filed by Ch. Salam Din. On appeal filed by Azad Government and another, learned Judge in High Court accepted the appeal by setting aside the order of Additional District Judge Muzaffarabad and thus the market value of the land, as determined by the Collector Land Acquisition, stood restored. Hence this appeal by Ch. Salam Din, the owner of the land in dispute.
3. In support of appeal it was vehemently contended by Kh. Muhammad Nasim, the learned counsel for the appellant, that in the trial Court the respondents were proceeded ex parte and they did not produce any evidence in rebuttal of the evidence of the appellant. The learned counsel for the appellant argued that respondents after putting up their appearance in the trial Court purposely absented themselves and did not join the proceedings wilfully until the verdict of the trial Court was recorded against them. The learned counsel for the appellant pressed into service the submission that even if the sale-deeds produced by the appellant before the trial Court regarding small tracts of land are taken out of consideration, there was sufficient material brought on record by the appellant which could have justified the enhancement of the compensation of the land in dispute. The learned counsel pointed out that even in the award of Collector it was observed that from 1986 to IP88 no sale-deed of village Pettikha was shown to have been executed in the Revenue Record. However it was observed by the Collector that the land in dispute was situated near Authmuqam Road. The learned counsel also contended that the Additional District Judge Muzaffarabad has advanced cogent reason for enhancing the amount of compensation of the disputed land to the tune of Rs.70,000 per Kanals alongwith 15% compulsory acquisition charges.
The learned counsel for the appellant in support of his contentions cited reported cases titled Faiz Akbar Khan and others v. Azad Government and others (1996 SCR 132) and Muhammad Sharif and 7 others v. Azad Government and another (1998 CLC 2052).
4. In reply it was contended by Kh. Attaullah, the learned Additional Advocate-General appearing on behalf of respondents, that the trial Court failed to appreciate the evidence on record and virtually it misread the evidence. The learned counsel contended that the sale-deeds of small pieces of land were hardly a relevant consideration for enhancing the amount of compensation but the trial Court fell in error in relying upon the sale-deeds of small pieces of land. The learned Additional Advocate-General contended that the trial Court advanced no sound reasons for enhancing the amount of compensation. In support of his contentions he relied on a reported case titled Land Acquisition Collector Tarbela Dam and others v. Muhammad Ashraf Khan and 3 others (PLD 1989 SC 589).
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that respondents after appearing in the trial Court absented themselves from the Court and they were proceeded ex parte by the order of trial Court, dated 24-8-1989. They produced no evidence in rebuttal of evidence produced by the appellants in the trial Court, nor they applied to the Court for setting aside the ex parte proceedings. The appellant in support of reference examined Muhammad Ashfaq Patwari, Nasir-ud-Din, Raja Muhammad Ilyas and Syed lqbal Hussain Shah as his witnesses and Ch. Salam Din, appellant herein, also appeared as a witness. In addition to the oral evidence the appellant produced documentary evidence; copy of sale-deed Exh.P.C., copy of sale-deed Exh.P.D., copy of judgment passed by District Judge Exh.P.A.
And copy of another sale-deed, Exh.P.B. The trial Court enhanced the amount of compensation from Rs.47,040 to Rs.70,000 per kanals alongwith 15% compulsory acquisition charges while relying upon the oral as well as the documentary evidence Exhs. P.C.,'P.D. And P.A., the copy of judgment passed by the District Judge on 25-3-1993. The trial Court also observed that the sale-deeds Exh.P.C. And Exh.P.D. Were executed on 8-1-1983 and 27-12-1987 much before the award in dispute.
The trial Court also relied upon a judgment of District Judge Exh.P.A. On the basis of which the compensation amount of land measuring 8 Kanals, situate at Balsary, an adjoining village, was fixed as Rs.56,000 per Kanal. The trial Court further observed that while determining the compensation of the land acquired not, only its use but its location and the potential use to which the land can be put in future are the relevant considerations. It was also opined by the trial Court that the land in dispute was situated admittedly on the Neelum Valley Road and its potential value was far better than the other lands. So, keeping in view the sale-deeds, the oral evidence, the potential use of the land and the location of the land acquired, the trial Court enhanced the compensation of the land under reference.
6. A learned Judge in the High Court while accepting the appeal of respondents observed that the trial Court committed an error in taking into consideration the sale-deeds which were of small tracts of land and the price entered therein was hardly a relevant consideration for enhancing the amount of compensation. The High Court observed that there was no other material on record which could have substantiated the case of appellant.
7. It is indeed correct that the sale-deeds of small portion of land are normally not a relevant consideration for enhancing the amount of compensation as they are used for commercial as well as residential 'purposes. In a case reported as Faiz Akbar Khan and others v. Azad Government and others (1996 SCR 132) it was observed by this Court as follows:-- "It may be pointed out here that admittedly the land acquired is situated dear Hajira Town, where the land can be also utilised for various commercial purposes. Even the learned counsel for the Government has argued that as the sale-deeds adduced in evidence by Faiz Akbar Khan and others pertain to the lands which were either purchased for the construction of shops or private buildings; the same are not good guide for assessing the market value of the land in question. It may be pointed out that while assessing the market value, the 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 to which it can reasonably be put in future."
At the end of this citation it was also observed that potential use of land acquired should also be kept in view while assessing the market value.
" ------it is well-settled that the price of small pieces of land cannot form basis of market value of big tracts of land."
8. The above-referred last authority, cited by the learned counsel for respondents, is distinguishable as it was observed by the Supreme Court of Pakistan that it was dangerous to rely on the so-called final awards regarding similar land in the similar village except in very rare cases, like the one where record was tampered with on a large scale. It was further observed by the Supreme Court of Pakistan that the question of finality of award in this context would depend upon the circumstances of each case.
9. Even if we discard the evidence of sale-deeds relating to small portions of land to form basis for enhancement of compensation, we may point out that it has been held by this Court in numerous cases that the potential value of the land acquired to which it can be put into use in future and the locality of land where it is situated are some of the relevant considerations for determining the market value of the land. In our considered view the trial Court advanced cogent reasons in determining the market value of the land by observing that acquired land was situated on Neelum Valley Road and because of its location and the potential use to which it can be put into in future.
The trial Court relied upon the evidence of witnesses who were unanimous on the point that the land acquired was situated adjacent to Pettikha Bazar and was of better quality than the land situated at Balsary. In the judgment passed by the District Judge Exh.P.A., the land was acquired in 1988 but the compensation amount was enhanced to the tune of Rs.56,000 per Kanal. The trial Court also observed that the sale--deeds, Exhs.P.C., and P.B. Were executed in 1983 and 1993 respectively whereas sale-deed, Exh.P.D. Was executed on 27-12-1987. Since these sale--deeds were executed prior to the acquisition of the land, therefore, they could be considered for determining the market value of land in question but as observed earlier even if we discard the sale-deeds of small portions of land for determining the market value of land in question, there is other sufficient material on record, i.e. The judgment of the District Judge Exh.P.A., the findings recorded by the trial Court that the land in question was situated on the Neelum Valley Road and it had the potential to be put into a better use in future. Moreover, all the witnesses produced by the appellant were unanimous on the point that the land in question was situated on the road side near Pettikha Bazar. The above evidence was further supported by the statement of Ch. Salam Din, appellant, himself that he wanted to utilise the land in question for commercial use and for that purpose he had even raised the construction of some shops which shows that the market value fixed by the trial Court suffers from no illegality or infirmity as pointed out by the learned counsel for respondents.
10. We have also observed in the previous part of the judgment that respondents after putting their appearance in the trial Court absented themselves and they were proceeded ex parte. The evidence thus, produced by the appellants was not at all rebutted by the respondent. The witnesses for appellant have categorically stated that the land in question is situated on the Neelum Valley Road and it has the potential in future to be used for commercial purposes. The evidence of the witnesses of the appellant and the statement of appellant (petitioner) was not questioned in cross-examination by the respondents. The law on the point stand settled that if the evidence of a witness is not challenged, the same shall be deemed to have been admitted by its adversary.
11. In this view of the matter the High Court failed to appraise the evidence in true perspective; rather in our view the High Court has failed to read the evidence and to appreciate it in accordance with the settled principle of law. The respondents had been negligent enough to absent themselves and they opted not to apply for setting aside the ex parte proceedings. They had been negligent enough in prosecuting their case and to cross-examine the witnesses produced by the appellant. It has been observed that conduct of those who are responsible to prosecute or defend the cases on behalf of the Government is not satisfactory and calls for rectification but hardly any improvement has been made in that regard. A copy of this judgment shall be sent to the Chief Secretary for necessary action in future.
11. In view of above, we accept the appeal by setting aside the impugned judgment and decree of the High Court and restore that of the trial Court, with no order as to costs.