2017 C L C 1637
[Balochistan]
Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ
Malik WALI MUHAMMAD and 40 others ----Appellants
Versus
AC/SDM AND COLLECTOR SADDAR SUB -DIVISION, QUETTA and another ----
Respondents
First Appeal No.28 of 2000, decided on 17th April, 2017.
Land Acquisition Act (I of 1894) ---
----Ss. 4, 5 & 18---Acquisition of land---Reference against award ---Ground of market value
higher than compensation awarded---Proper valuation of land---Scope ---Appellants/landowners
contende d that valuation of their acquired land was not assessed on market value ---Authorities
contended that proper valuation was assessed as per prevalent market value and that appellants
could not agitate as they had received the compensation money, though unde r protest ---Validity -
--High Court, in the light of directions of Supreme Court, perused the documentary evidence produced by appellants before District Judge which were sale deeds and revenue record but the same were of no avail to appellants because value shown in the exhibited documents were lesser
than the market value as asserted by the attorneys of the appellants in the Trial Court ---Referee
Judge in order to ascertain the exact market value of the acquired land, himself visited the site in presence of all the landowners and at that time the landowners failed to produce any evidence in
support of their claim ---Referee Judge observed that land acquired was uneven and never
cultivated and mentioned that all the mutations on the basis whereof the average had been ascertained were of the lands which had given some yield whereas the acquired land was located around "lake" which was completely uneven and mountainous ---Contention of the authorities
was that amount assessed had already been received though under protest, and by receiving the
amount the matter attained finality ---High Court observed that under the law the appellants had
every right to raise objection on the award even after receiving amount, under protest ---Perusal
of material available on record revealed that Trial Court, after attending all legal as well as factual aspects of the case, passed a well -reasoned and speaking judgment which did not suffer
from any illegality, irregularity, omission or inherent defect, hence was not open to any excepti on---Appeal was dismissed accordingly.
Province of Punjab and others v. Basheer Ahmed Shah and others 2007 MLD 336 ref.
Syed Mumtaz Hanfi Baqri for Appellant.
Naseer Ahmed Bangulzai, A.A.G. and Syed Shabir Shah Standing Counsel for Respondents.
Date of hearing: 13th March, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. --- Instant appeal is directed against the
Judgment/decree dated 02.05.2000 passed by learned Additional District Judge -III, Quetta
whereby the reference made by appellants was dismissed.
2. Brief facts of the case are that on 14th September, 1994 a Notification under Section 4 of
the Land Acquisition Act, 1894 was issued by the respondent No.1 for acquiring the land
situated near Hanna Lake belonging to the appellants on the request of the respondent No. 2. The appellants expressed their willingness subject to payment of compensation at market rate. After observing Codal formalities, the respondent No.1 announced the award on 4th September, 1995
whereby the following value of the landed property w as fixed.
1. Mohal and Mouza Hanna Rs.46000/ - Per Acre.
2. Mohal and Mouza Khushkaba Shumali
(1) Khushkaba Rs.30,000/ - Per Acre.
(2) Cultivable Rs 20,700/ - Per Acre.
(3) Ghair Mumkin Raqba/Ghundi Rs. 9,000/ - Per Acre
The appellants being dissatisfied with the award filed an application under Section 18 of
the Land Acquisition Act, 1894 for referring the matter to District Judge. The learned District
Judge, Quetta after receiving the Reference issued notices to the respondents who filed their objections to the application, on the basis whereof the following issues were framed on 20th of
July 1997: -
1. Whether the suit is barred by time?
2. Whether the relevant provisions of law were not complied while making the
proceedings for acquisition of the land?
3. Whether proper valuation of the land was made at the time of notification issued
under Section 4 of the Land Acquisition Act?
4. Whether the applicants are entitled for compensation as claimed by them?
5. Relief?
3. On 8th September, 1998 the Reference was transferred to the file of learned Additional
District Judge -III, Quetta for proceedings in accordance with law. In support of their claim the
appellants produced 5 witnesses and got recorded their statement through attorney. Similarly the respondents als o produced their respective representatives. The learned Additional District
Judge -III, Quetta after hearing the parties through the learned counsel and evaluating the
evidence found the compensation proper, as such dismissed the Reference filed by the app ellants
as mentioned hereinabove. The appellants being aggrieved of the judgment/decree passed by the
Additional District Judge -III, Quetta preferred appeal before this Court. This Court vide
judgment dated 2nd May, 2006 dismissed the appeal. The appellant s still not satisfied with the
judgments passed by this Court and the trial Court filed C.A No.1655/2006 before the Hon'ble
Supreme Court. The Hon'ble Supreme Court vide judgment dated April 24, 2014 remanded the
matter to this Court with the following obs ervations: -
"Upon perusal of the judgments of the Referee Judge and the High Court we found the
arguments of the learned counsel valid. Neither of the two Courts have discussed the above exhibits which were foundation of the appellants' case. The Courts ha ve only
dilated upon the oral evidence produced by the appellants. However; we in our constitutional jurisdiction will not embark upon determination of the market price in the light of the said documents, which must be read together with other relevant evi dence.
However instead of remitting the matter back to the Trial Court as no further evidence need to be recorded, we would remand the matter to the High Court. Consequently, the appeal is allowed. The impugned judgment is set aside and the case is sent ba ck to the
High Court of Balochistan where the R.F.A No. 28 of 2000 shall be deemed to have been pending and be disposed of on merits".
4. The learned counsel for the appellants argued that the judgment/decree passed by the trial
court is contrary to law, f acts and principles of natural justice because while dismissing the
Reference neither it has taken into consideration the evidence produced by the appellants nor the same was discussed properly. He criticized the judgment impugned on the ground that it was
based on the findings of Collector without applying judicial mind independently. He added that
the appellants produced sufficient ocular and documentary evidence in support of their claim in respect of market value of the land in question being much highe r than that fixed by the
Collector, therefore, the learned trial court was bound under the law to have enhanced the rate of compensation on the basis of proven fact but it failed to do so without any justifiable reason. He further added that the trial cour t failed to take into consideration the average market value at least
fixed by the Revenue Officials themselves but not acceded to by the Collector. He criticized the judgment by submitting that the learned trial court erred in law by holding that the appe llants
failed to produce evidence before the Collector which was patently wrong and Illegal because the court itself was under legal obligation to have assessed the evidence produced, independently and without being influenced from the award of the Collect or, but the learned trial court failed to
do so which ultimately caused miscarriage of justice to the appellants.
On the other hand the learned Additional A.G. strongly opposed the appeal by submitting
that the judgment/decree passed by the learned trial court is based on proper appreciation of evidence. Nothing is available on record showing that conclusion arrived at by the learned trial court was based on misreading or non- reading of evidence. He added that the property was
assessed and valued properly as per prevailing market value and the trial Court rightly
appreciated the same. He maintained that the learned counsel for the appellants failed to point out any specific illegality or irregularity in the judgment impugned, as such appeal filed by the appellants merits dismissal.
5. We have heard the learned counsel for the parties at length and gone through the record.
Before dilating upon the contention of learned Counsel for the appellant we would like to discuss
Exhs.P/1 to P/7 as directed by the Hon'ble Supreme Court. It may be seen that Exh.P/1 shows that in the year land measuring 4 Rod 7 pole was sold against an amount of Rs.1,50,000/ -
(Rupees One Lac Fifty Thousand Only), Exh.P/2 reveals that land measuring 1 Rod 10- 1/4 pole
was sold against an amo unt of Rs.65,264/ -(Rupees Sixty Five Thousand Two Hundred and Sixty
Four Only) whereas Exh.P/3 shows that land measuring 2 Rod 27 pole was sold against an
amount of Rs.8,02,267 (Rupees Eight Lacs Two Thousand Two Hundered and Sixty Seven
Only). Exhs.P/4 to 8 are revenue record wherein it has been mentioned that the prevailing market
value is Rs.20/ - per square feet. To our perception Exhs.P/1 to 7 are of no avail to the appellants
because attorney of appellants deposed before the trial Court that the market value of land in
Mouza Hanna was 15/16 Lacs per acre and in Mouza Khushkaba Shumali Rs.3,00,000/ - (Rupees
Three Lacs Only) per acre. The Referee Judge in order to ascertain the exact market rate of the acquired land, on 04- 09-1995 himself visited the site in presence of all the land owners and the
representative of M.E.O. as per the judgment passed by the Referee Judge at that time the appellants failed to produce any evidence in support of their claim. The learned Referee judge observed that during the ye ars 1991 to 1993 average rate of Mohal and Moza Hanna was
Rs.13/33 per Sq. ft which comes to Rs.6,02,434/ - (Rupees Six Lacs Two Thousand Four
Hundred and Thirty Four Only) per Acre. The learned Referee Judge also mentioned that this is the rate of fully de veloped land whereas the land acquired by respondent is uneven and never
cultivated. So far as Mohal and Mouza Khushkaba Shumali, Mouza Khan is concerned, average rate as per the Referee Judge in the years 1991 -1993 was Rs.1/17 per Sq. ft. which come to
Rs.50,965/20 (Rupees Fifty Thousand Nine Hundred Sixty Five and Twenty Paisa Only) Per
Acre. The learned Referee Judge further mentioned that all these mutations on the basis whereof the average has been ascertained are of the lands which have given some yield whereas the acquired land is located around Hanna Lake which is completely un even and mountainous. The
learned counsel during arguments failed to rebut the findings of the trial court either by producing any documentary evidence or orally. It would be worthwhile to mention here that the Referee Judge ascertained the average of land on the basis of previous transactions and after personally visiting the site which cannot be taken lightly especially in absence of any contrary material.
6. Adverting to the arguments of learned counsel for appellant and careful perusal of record
indicates that the learned trial court did not erred in law by holding that the property valued and assessed by the Collector was improper, unjustified or contrary to the prevailing market rate of the property. Record further shows that the process of assessment was completed after adopting due course, each and every portion of the property was assessed and valued separately, detail thereof has already been mentioned in para supra. It may not be irrelevant to mention here that
the best evidence for determination of market value might be sale deed if executed prior to the issuance of notice under Section 4 of the Land Acquisition Act, 1894 and sale deed is executed thereafter within 12 months period in the same vicinity, should have been brought on record by the appellant but they failed to do so. In this respect reliance can be placed on the case titled as Province of Punjab and others v. Basheer Ahmed Shah and others, reported in 2007 MLD 336, wherein it was held as under: -
"Admittedly the Notification under Section 4 of the Land Acquisition Act was issued on
26-6-1985 and in terms of Rule 10(1)(iii)(c) of Land Acquisition Rules, 1983 average
market price of similar kind of land similar ly located, on the basis of the price prevalent
during the period of twelve months preceding the date of publication of Notification
under Section 4 of Land Acquisition Act in the area sold has to be followed which in the instant case was 26 -6-1984 to 25- 6-1985. Hence, the sale -deed Exh.P -4 relating to sale of
land on 11/12- 1987 was of no help to the respondents being later to the Notification
under Section 4 of the above Act and there is considerable force in the contention of the
learned counsel for the a ppellant that the learned Senior Civil Judge was not right in
considering the said document while determining the price. However, the sale taking
place through agreement to sell, dated 5- 11-1984 Exh.P.5 followed by receipt Exh.P -6
and sale -deed, dated 20 -11-1984 based on agreement to sell, Exh.P -5 whereby 120
Kanals, 13 Marlas of land was sold for a price of Rs.4,10,000 could be and was validly relied upon by the learned Senior Civil Judge having taken place between 24- 5-1984 to
25-6-1985 i.e. the period re quisite in terms of Rule 10 (1)(iii)/(c) of Land Acquisition
Rules. We however, agree with the contention of learned counsel for the appellant that the learned Senior Civil Judge was not justified in relying oral evidence while determining the price. The l earned counsel has also argued that the Land Acquisition
Collector determined the price after spot visit and also determination of classification of disputed land cultivated or uncultivated in nature. But at the same time the learned counsel has not been a ble to refer to any evidence produced by the appellant to the effect
as to what/evidence was available before the Land Acquisition Collector while determining the classification nature of the land i.e. cultivated or uncultivated and also the market value o f the same at the relevant time. Hence, in the absence of any other
evidence, we have no option but to rely upon Exh.P -5, Exh.P -6 and Exh.P -7 by which
land measuring 120 Kanals 13, Marlas was sold for a price of Rs.4,10,000 which has not been disputed by t he appellant and according to these documents average sale price
during the above mentioned period in terms of Rule 10 (i) (iii) (c) of above rules comes
to Rs.27,000 per acre which may be considered as appropriate and accordingly we accept the same."
7. It has been further noticed that the amount assessed had already been received though
under protest. As per statement of the learned counsel for the respondents by receiving the amount the matter attained finality but to that extent we are not in agreement with him because under the law the appellants have every right to raise objection on the award even after receiving amount under protest.
8. Reverting to the merits of the case we are of the considered view that valuation assessed
for the property in quest ion mentioned in the opening paras of the appeal was proper, justified
and not in conflict with the prevailing market rates of the area, therefore claim of the appellants for enhancement of compensation was improper, unjustified and devoid of any documenta ry
evidence permissible under the law. In the given circumstance of the case there was no other option with the learned trial court except to dismiss the Reference filed by the appellants. No Specific illegality, irregularity, misreading or non reading of evidence or misapplication or wrong application of the relevant law could be pointed out by the learned counsel for the appellants. Perusal of material available on record reveals that the learned trial court after attending all legal as well as factual as pects of the case passed a well -reasoned and speaking
judgment which does not suffer from any illegality, irregularity, omission or inherent defect, hence is not open to any exception.
In view aforementioned facts and circumstances of the case appeal filed by the appellants
is hereby dismissed with no order is costs. Decree sheet be drawn.
MQ/68/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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