This judgment will dispose of 3 Regular First Appeals bearing Nos. 42/65, 4 3/65 and 44/65.
2. The land measuring 22 kanals 19 marlas was acquired for the extension of Islamia High School, Lalamusa in the revenue estate of village Saida Gol, Tehsil Kharian. On 29-9-1962 an agreement under section 41 of the Land Acquisition Act, 1894 (hereinafter called the Act) was entered upon between the Commissioner, Rawalpindi Division and Anjuman Islamia, High School Lalamusa through their Manager, that the costs of extension of the school will be borne by Anjuman Islamia.
Notification under section 4 of the Act was issued by the Commissioner, Rawalpindi, on 19-11-1962.
In view of the urgency of the matter the Commissioner dispensed with the requirements of sections 5 and 5(a) of the Act. Notification under section 6 was issued on 9-2-1963 for the acquisition of the abovementioned land. The Land Acquisition Collector, on 30-6-1963, after bearing all the parties gave the awards. According to these awards, compensation to the land owners was assessed at the rate of Rs. 20 per marla and 15 % compulsory land acquisition charges over the actual compensation were also allowed. The total compensation was calculated as Rs. 10,511. Out of the land acquired 17 kanals 11 marlas was barani land and 5 kanals 6 marlas was banjar qadeem.
While giving award the Land Acquisition Collector treated the entire land as of the same quality and, therefore, treated banjar qadeem at par with the barani land. Some owners with regard to the aforesaid awards claimed reference under section 18 of the Act, which was decided by the learned Administrative Civil Judge, Gujrat, on 1st March, 1965. It appears that in view of the agreement under section 41 of the Act, the Collector, Land Acquisition, did not contest before the learned Civil Judge and the reference was contested only by Anjuman-e-Islamia High School,
3. In support of their claim the landowners produced Faiz Rasool Patwari, P. W. 1, who proved and elaborated the five years' average (Ausat Panjsala) El. P. 1 in relation to each category of land. The land owners also placed reliance on mutations Exhs. P. 2 and P. 3 wherein this very land was shown to have been purchased in the year 1921 at the rate of Rs. 52 per marls. The average worked out indicated that the banjar type of lands in the village Saida Gol were being sold at the rate of Rs. 69 per marla. The fact that the land in question is situated within the Municipal limits of Lalamusa is not disputed. Learned Administrative Civil Judge mainly relied on Exh. R. 1 which according to him was more precise and elaborate as it covered many transactions during this period. While determining the price the other consideration that weighed with the learned Administrative Civil Judge was the location of this land being contiguous to the High School and in fact it was acquired for the extension of the School. Learned Civil Judge did not consider it fair to rely on Exh. R. 1 which pertains only to five mutations, and it is not clear as to where these tracts of land were situated.
The learned Civil Judge after considering all the material evidence on the record assessed the compensation at the rate of Rs. 60 per marls. Anjuman-e-lslamia has filed three appeals against the aforesaid judgment of the Administrative Civil Judge. Muhammad Alain and Muhammad Hasham (respondents in Appeal No. 42/65) claimed 7115th share in Khatas Nos. 702/1 and 1512/1 measuring 12 marlas were awarded compensation of Rs. 951 at the rate of Rs. 69 per marla and 15 compulsory charges. On the same rate learned Civil Judge awarded Rs. 3,795 besides 15 compulsory charges to Ghulam Rasool (respondent in R. F. A. 43/1965) as he owned 2 kanals 15 marlas. Lal Khan (respondent in R. F. A. No. 44/1965) was allowed Rs. 5,382 besides 15 % charges for compulsory acquisition.
4. The only point urged by the learned counsel for the appellant is that in the instant case the compensation should have been assessed on the basis of Ausat Panjsala shown in Exh. R. 1, according to which the average price of land come; to Rs. 20 per marls. Fazal Kareem Patwari, Land Acquisition, author of R. 1, appeared as R. W.
1. He deposed that this land was shown at the time of acquisition as banjar gadeem, though soon after it was recorded as ghair mumkin playground in the Khasra Girdawari. In view of the evidence on the record the contention of the learned counsel cannot be accepted, as Exh. R. 1 is silent about the situation of the land mentioned therein. Land in dispute, according to the testimony of this witness, is situated within the Municipal limits and is adjacent to the High School. This witness also placed on record Ausat Panjsala pertaining to years 1958 to- 1962, which is at pages 35 to 39 of the lower Court's file. The transactions shown at Items Nos. 28 to 43 reveal that during this period pieces of land were even sold at the rate of Rs. 100 per marls and the average calculated for this period comes to Rs. 69/27 per marla. The contention of the learned counsel is also not tenable on the ground that the agricultural nature of the land alone cannot form a valid basis for determining the correct compensation, the potential value of such land is also an important factor which cannot be ignored for the purposes of determining the price.
The Collector while giving the award bypassed this material fact that this land is situated within Municipal limits. He also failed to consider that in -the year 1922, a portion of the very land was purchased at the rate of Rs. 52 per marla (Exhs. P. 2 and P- 3). For these reasons Ausat Panjsala shown in Exh. R. 1 was rightly rejected by the learned Civil Judge, and I find no reasons to disagree with him. Reliance in this respect can be placed on Government of West Pakistan v. Subedar Muhummad Hussain and 3 others (PLD 1970 Lah. 463), where Karam Elahi Chauhan, J. While dealing with a similar situation made the following observations : "The contention cannot be accepted for various reasons. Firstly, because the Ausat Punjsala prepared by Muhammad Aslam Patwarl (D. W. 1), according to his own deposition, does not keep regard of the fact as to whether the land was near the abadi or away from it. Secondly, in this Ausat Punjsala, he has not included the sale transaction evidenced by Exh. P. 3, dated 29-4-1961, which showed that the land involved therein which consisted of Khasra Nos. 54, 65, 56_ and 57/1041 was sold at the rate of Rs. 100 per marla. Thirdly, the witness himself admitted that in that locality sales during the past three or four years had been made at the rate of Rs. 100 per marls, which means that this deposition on oath was different from the excerpt prepared by him. Fourthly, this report lays emphasis on the agricultural nature of the land and ignores the point of view of "potential value". The locality where the land in dispute is situated is a commercial or factory area., in which are set up numerous factories and to evaluate such land as an agricultural land is not justified. This Ausat Panjsala was not accepted by the learned civil Court and we are in agreement with him that it cannot constitute a valid basis for working out the amount of compensation for the land in dispute."
5. Learned counsel for the appellant also pointed out that some other land owners whose land was acquired have accepted the award of the Collector and did not claim any enhancement. May, it be so, if they were satisfied with the award of the Collector and they did not ask for a reference under section 18 of the Act, they will not be entitled to get compensation at the enhanced rate. This proposition was also discussed in the above-cited case and it was held that : "Learned counsel for the appellant argued that certain land owners whose land was involved in a different award (Exh. P. 11), had been awarded compensation at the rate of -Rs. 40 per marls and that the said land owners had not challenged the said award which, according to the learned counsel, showed that this was a fair rate and from that point of view the same should be fixed here.
The plea cannot be accepted because as laid down in Atmaram Bhagwant Ghadgay v. Collector of Nagpur such a course is not to be adopted. In that case, the Appellate Court had referred to the evidence as to the price accepted by other owners in respect of certain other plots, the conditions of which were not fully before it. The Privy Council did not approve of this practice and held, "it is in short hardly too much to say that the Appellate Court, in its exclusive reliance upon the attitude of the owners other than the appellant, were within an act of ignoring the prohibition imposed upon them by section 21 of the Act and of extending the range of the inquiry beyond the statutory limit thereby set."
In my view and the discussion made above, rate of compensation awarded by the Collector, Acquisition was based on wrong premises and was not a valid assessment. The learned Civil Judge has given cogent reasons for not accepting Exh. R.
1. The assessment made by him is quite appropriate, reasonable and well warranted by the facts of the case and I see no reason to disagree with him.
6. As a result, all the three appeals fail and are accordingly dismissed. The parties are, however, left to bear their own costs.