IFTIKHAR MUHAMMAD CHAUDHRY, J.--In above-noted appeals leave was granted by this Court on 26-4-2000 to examine contentions noted therein. The Order is reproduced hereinbelow:-- "162. Acres of lands were acquired by the Government for the sewerages purposes. The Land Acquisition Officer had fixed the value at the rate of Rs,10,000 (Rs, ten thousand) per acre, which in appeal by the High Court was enhanced to Rs,400,000 (Rs,Four Lacs) per acre. The learned counsel contends that the enhancement is without legal justification. The contention raised, requires consideration. Leave is granted to examine the above contentions in the Petitions Nos.45 to 60- K/2000."
2. Facts giving rise to instant appeals are that vide Notification dated 29th September, 1981 published in the Sindh Government Gazette dated 15th October, 1981, the Land Acquisition Officer/Collector acquired land, owned by the respondents for the sewerage treatment plant in Deh Mirzan Pur, Taluka and District Hyderabad. Subsequent thereto the Land Acquisition Officer, vide award dated 7th July, 1986 fixed the compensation of the acquired land @ Rs,10,000 per acre plus 15% compulsory charges. The respondents through their attorneys requested the Land Acquisition Officer for making reference to District Court for enhancement of compensation from Rs,10,000 to Rs,400,000 per acre plus 15% compulsory charges plus 6% interest from the date of possession till the date of payment of compensation. As the application was filed under section 18
(b) of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") therefore, reference was made to the District Judge, who after recording the evidence from both the sides dismissed the reference on 31st August, 1989. As such respondents preferred appeals before High Court of Sindh.
The appeals so filed by the respondents were accepted by means of consolidated impugned order dated 4th November, 1999, whereby compensation was enhanced from Rs,10,000 to Rs,4,00,000 as such instant proceedings have been instituted.
3. Learned counsel contended on behalf of appellant that impugned judgment is not sustainable in law because learned Single Judge, in chambers of High Court of Sindh, accepted the appeals filed by respondent without discussing the evidence and advancing reasons for acceptance of the same, therefore, instant appeals are liable to be accepted on this score alone.
4. When confronted with above position, learned counsel for respondents attempted to support the judgment by making reference to its various parts. However, he failed to pinpoint that portion of the judgment in which, after discussing evidence reasons were advanced to conclude that the respondents/land owners are entitled for compensation at the rate of Rs,4,00,000 per acre instead of Rs,10,000 under section 23 (1) of the Act.
5. We have painfully noted lacuna pointed out in the judgment by the learned counsel for the appellant. However, we believe that such omission has occurred inadvertently because perusal of the judgment reveals that besides noting arguments advanced by both the sides, the evidence has also been reproduced precisely, as such there was no impediment for the learned Judge in discussing the evidence to formulate reasons for the purpose of drawing conclusion on basis of which appeals were allowed. It would tie advantageous to note that judicial pronouncement (judgment) by a Judicial Officer should be based on the evidence/material available on record and reasons must be outcome of the evidence available on record and on the basis of such reasons conclusion should be drawn and if the order lacks of these ingredients it cannot be termed to be a judicial verdict (judgment) in stricto senso and at the best such pronouncement can be termed to be an administrative order incapable to settle controversy judicially between the parties.
Confronted with such situation we were inclined to remand the case by setting aside judgment to the High Court but keeping in view protracted delay which has already taken place in the matter because parties are in litigation from 24th September, 1981, therefore, with consent of the parties' counsel we decided to dispose of the appeals on merits to save parties from another round of litigation and also to do substantial justice between them.
6. Learned counsel for appellants contended that before the Additional District Judge (Referee Judge) respondents based their case for enhancement of compensation on sale deeds dated 31st January, 1981 (Exh.P/31) and 1-12-1985 as well as the award dated 3rd July 1986 pronounced by the Collector in another case. However, the documents produced in evidence were not admissible in law as their photo copies have been tendered during statement of one of the Attorneys of the respondents namely Mushtaq Ahmad. Learned Additional District Judge has discarded the sale deed dated 31-1-1981 relied upon by the respondents for the reasons mentioned in the order. As far as second sale deed dated 1-12-1985 and the award pronounced by the Collector in another case of land acquisition for acquiring land for WAPDA was not acceptable because it was also not proved according to law. Moreover the property mentioned therein is situated in different location ot Deh Mirzan Pur. According to him as far as oral evidence produced by respondents is concerned that is not acceptable to determine the market value of the land in dispute as well as to determine the potentials of the acquired land because mere assertions in the oral evidence with regard to the market value and the potentials of the property will not be accepted unless such oral statement is supported by some other oral as well as documentary evidence.
7.. Learned counsel for the respondents raised preliminary objections regarding maintainability of the appeals as well as locus standi of appellant to invoke jurisdiction of this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan. Objections so raised by him shall be dealt with separately. However, on merits he stated that respondents have brought on record three documents reference of which has been made by the counsel for appellant in his arguments.
According to him as per documentary evidence the average price of acquired land per acre comes to Rs,4,00,000 therefore, the High Court has rightly enhanced the compensation vide impugned judgment. He further argued that the respondents have adduced convincing oral evidence to prove potential and market value of the property and as statements of the witnesses got recorded by them in this behalf have gone unchallenged, therefore, respondents are entitled for grant of enhanced compensation at the rate of Rs,4,00,000 per acre.
8. It may be noted at the very outset that for determination of market value of the acquired land the crucial date would be on which a notification under section 4(1) of the Act has been issued.
Reference in this behalf may be made to the case of Land Acquisition Collector v. Ch. Muhammad Ali (1979 CLC 523). It is equally important to note that consistent practice for determining such value is that the sale average of the preceding years is to be taken into consideration for the purpose of grant of compensation. As far as the transactions which have taken place subsequent to the issuance of Notification under section 4 (1) of the Act are concerned same are not considered proper to achieve the object. In the instant case Notification Under section 4 (1) of the Act was issued on 29th September, 1981, therefore, the sale deed dated 1-12-1985 and the award of the Collector pronounced in some other case wherein the land was acquired for the benefit of WAPDA dated 3rd July, 1986 are kept out of consideration outrightly.
9. As far as sale deed dated 31st January, 1981 Exh.P-31 is concerned, learned Additional District Judge has discarded it. Besides adopting the reasons for not accepting this document in evidence, we further add that as per the statement of Mushtaq Ahmed, this conveyance was taken on record subject to its admissibility because the witness tendered its photocopy. Inasmuch as later on no steps were taken by the respondents to prove the contents of this document by leading primary or secondary evidence in terms of Articles 75 and 76 of Qanun-e-Shahadat Order, 1984. Therefore, this document also cannot be taken into consideration. It is also to be noted that merely be tendering a document in evidence it gets no evidentiary value unless its contents are proved according to law. The burden of proof was _upon the respondents to establish that the compensation of the land which has been awarded by the Collector is inadequate, therefore, it should have been enhanced adequately. As far as Collector or Land Acquisition Officer is concerned, he does not exercise judicial powers but only is appointed to conduct an inquiry and formulate his opinion on the basis of the same. However, during hearing of Reference under section 18 of the Act, judicial proceedings are conducted, therefore, party interested for enhancement of the compensation owes a duty to discharge the burden by producing convincing evidence. Since the sale deed dated 31-1-1981 Exh.P-31 is not admissible in evidence, therefore, we draw inference that this piece of evidence has not advanced the case of the respondents in any manner.
10. Now adverting towards oral evidence led by respondents, it is to be noted that the witnesses produced by them have made assertion that the market value of the property is Rs,400,000 and their such assertion is based on sale deed dated 31-1-1981 and once this document is kept out of consideration, this portion of statement becomes unbelievable. As far as other assertions made in this behalf are concerned with regard to potential value, no supporting evidence was brought on record by them. In this regard, a close scrutiny of the statement of one of the witnesses Mushtaq Ahmed would indicate that perhaps the acquired land was not cultivable because no Dhal (Revenue) was being paid by its owner. No evidence has been brought on record from independent source that the land has been cultivated or developed by its owner for the purpose of Housing Scheme etc. Therefore, on basis of mere, oral assertion on behalf of respondent, the potential value of the property cannot be determined. As such we are of the opinion that as the respondents have failed to discharge the burden o proving the market value as well as potentials of the property, therefore, for such reasons we are persuaded to draw a conclusion that learned Single Judge, in Chambers of High Court was not justified in enhancing the compensation from Rs,10,000 to Rs,4,00,000 per acre.
11. Learned counsel for respondents objected on the maintainability of the appeals on the ground that under section 54 of the Act, direct appeal is competent before this Court and according to Order XII of Supreme Court Rules, 1980 time prescribed for appeal is 30 days but appellant filed petition for leave to appeal beyond period of 30 days and if the petitions are treated as appeals then they are barred by 8 days and for condonation of such delay no application has been filed.
Reliance in this behalf was placed by him on a judgment of this Court reported in NLR 1999 Rev.
90.
12. Learned counsel for the appellant contended that this Court while granting leave to appeal has already converted the petitions into appeals without making any observation in respect of determination of question of limitation at the time of final hearing of the appeals, therefore, it may be presumed that if there was any delay in filing of appeals that has been condoned. He further stated that the judgment relied upon by respondents' counsel is distinguishable because in that case petitions for leave to appeal were dismissed at the preliminary hearing whereas in the instant case leave to appeal was granted by this Court without making any observation in respect of limitation.
13. We have no doubt in our mind that against decree of the High Court a direct appeal shall lie to the Supreme Court under section 54 of the Act for which time of 30 days has been prescribed under Order XII, Rule 2 of Supreme Court Rules, 1980 and if appeal has not been filed then a petition for leave to appeal is competent under Article 185(3) of the Constitution of Islamic Republic of Pakistan if filed within 60 days as per Order XIII, Rule 1 of Supreme Court Rules, 1980. Normally in land acquisition cases against the order of the High Court appeal should have been filed but instead of filing appeal if a petition has been preferred then Court is competent to convert it into an appeal and also condone the delay if appeal is found barred by time in the interest of justice as it has been held in the case of Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCM R 2164. Relevant para. Therefrom is reproduced hereinbelow:-- "8. We are inclined to hold that if a party loses his right to file a direct appeal because of the limitation, he may invoke clause (3) of Article 185 of the Constitution for a petition for leave to appeal, which the Court may either grant or decline either on the ground that the party should have availed of a direct appeal or for the reason that the petition for leave to appeal has no merits." The view taken in the above judgment has again been reconfirmed in the case of Chairman, N.- W.F.P. Forest Development Corporation and others v. Khurshid Anwat Khan and others 1992 SCM R 1202. It is to be noted that in the judgement, which the learned counsel has relied, these two judgments were not cited at the bar during arguments. There is yet another distinction in the case relied upon by learned counsel namely that in that case petition for leave to appeal was dismissed at a preliminary stage because leave to appeal was refused whereas in these cases leave has already been granted, therefore, keeping in view the merits of the case which have been discussed hereinabove we are of the opinion that if there is delay of 8 days in filing the appeal that is to be condoned in the interest of justice because merely for such technical reason appellant cannot be non-suited and the impugned order dated 4th November, 1999 passed by the High Court cannot be upheld which on face of it is not sustainable in the eye of law as it has been pointed out hereinabove while discussing merits of the case. Therefore, while condoning the delay it is held that the appeals were duly instituted. Even otherwise if on merits the respondents have no case then limitation would not be a hurdle in the way of appellant for getting justice and in such-like situation the Courts should not feel reluctant in condoning the delay depending upon facts of the case under-consideration.
14. Learned counsel for the respondents also objected on the maintainability of the appeal on behalf of the appellant in view of the provisions of section 54 of the Act but when it was pointed out to him that respondents filed Reference against the appellant and they contested the same, therefore, if an adverse order has been passed against them then they can file the appeal, he could not answer satisfactorily and stated that he would not press this point.
Thus for the foregoing reasons appeals are allowed, as a consequence whereof impugned order dated 4th November, 1999 is set aside and order of Additional District Judge, dated 31st August, 1989 is restored. Parties are left to bear their own costs.
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