2020 C L C 1680
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ
A.C/SDM SADDAR, QUETTA and others ----Appellants
Versus
MEHRULLAH KHAN and others ----Respondents
R.F.A. No.82 and C.M.A. No.14 of 2012, decided on 12th December, 2019.
Land Acquisition Act (I of 1894) ---
----Ss.18, 23 & 28 ---Reference to court ---Enhancement of compensation ---Market value ---
Determination of ---Procedure ---Referee Judge appointed Local Commission who inspected
the site and submitted his repo rt---Reference filed by the landowner was accepted by the
Referee Judge ---Validity ---Collector Land Acquisition while fixing the rate of compensation
had failed to properly observe the correct market value of the property ---Potential value of
property was to be considered in addition to the market value of the land at the time of
passing the award ---Collector Land Acquisition had failed to consider that property was
commercial in nature rather he had mostly relied on the revenue record ---Average sales of
last one year was not conclusive proof for determination of market value of the land, while
assessing the market value of land its location and potentiality was also to be considered ---
Trial Court while passing the impugned judgment had rightly observed that compensation
amount was not properly assessed and fixed by the Collector Land Acquisition ---Referee
Judge had rightly fixed the amount of compensation and awarded 15% compulsory
acquisition charges as land had been acquired compulsorily ---Landowner had wa ived his
right to the extent of compulsory acquisition charges and he did not claim said amount ---
Impugned judgment passed by the Court below did not suffer from any illegality or
irregularity ---Impugned judgment and decree was modified to the extent of co mpulsory
acquisition charges ---Appeal was disposed of, accordingly.
Province of Sindh v. Ramzan and others PLD 2004 SC 512; Province of Punjab v.
Jamil Ahmad Malik 2000 SCMR 870 and Pakistan Burma Shell Ltd. v. Province of N. -
W.F.P. and 3 others 1993 SCM R 1700 rel.
Muhammad Aslam Jamali, Assistant Advocate General for Appellants.
Najeebullah Khan Kakar and Atta Muhammad Tareen for Respondent No.1.
Muhammad Saleem Lashari for Respondent No.2.
Date of hearing: 26th November, 2019.
JUDGMENT
MUHAMMAD KAM RAN KHAN MULAKHAIL, J. ----Through this common
order, We intend to dispose of the Regular First Appeal No.82 of 2012 and Civil
Miscellaneous Appeal No. 14 of 2012, arising out of the same judgment and Jecree dated
10th April 2012 ("impugned judgment"), pass ed by the Additional District Judge -III, Quetta
("trial court"), whereby the reference under Section 18 of the Land Acquisition Act, 1894
("The Act, 1894"), filed by the respondent No.1 was accepted.
2. Precisely stating facts of the case are that the resp ondent No.1 filed a reference under
section 18 of the Land Acquisition Act, 1894, averring therein that he being an agriculturist
and land owner of various properties in Quetta District, also owned a property in Mahal and
Mouza Chashma Baleli, Tappa Beleli bearing Khasras Nos. 588, 562, 436, 587, 625,
measuring 25 rods 18 - poles, while the Sui Southern Company Limited acquired a piece of
land measuring 2 -rod 15 -poles through appellant in RFA No. 82 of 2012 (AC/SDM Saddar,
Quetta), while the notices issued u nder Sections 4 and 5 of the Act, 1894, by the AC/SDM
Quetta, contained 1 rod and 6 poles. On 16th December 1998 a Notification under Section 4
of the Land Acquisition Act, 1894 bearing No.___/40(6) ACS/98 -Acq was issued for
acquisition of land situated at Mahal and Mouza Chashma Belili, Tappa Bellli, followed by
another Notification under Sections 4 and 5 of the Act, 1894 for the acquisition of land vide
memorandum No. 1782/40(6)ACS/98 dated 19th December 1998 for the same Mahal. The
respondent No.1 filed an objection on 26th December 1998 before the AC/SDM Saddar,
which was not entertained and the AC/SDM issued another Notification
No.44940(6)ACS(Misc) 94 dated 9th April 1998, which was also objected by the respondent
No.1, for not assessing the property a s per prevailing market rate. The reports of the Illaqa
Patwari dated 09th July 1996, wherein the rate of the land was mentioned as Rs. 45/ - per
sq:ft. thereafter, another report was also given by the AC/SDM from the years 1996 to 1998,
which contained the rate of Rs. 107/ -per sq.ft. the reports Were not considered by the
AC/SDM and instead, he fixed the minimum rate as Rs.15/ - per sq.ft. which was not tenable
under the law, consequently the AC/SDM Saddar Quetta passed the award dated 09th August
1999. The reference was sought to be referred to the District Judge, Quetta under Section 18
of the Act, 1894.
3. The appellants, contested the reference by filing written statement, whereby the claim
of the respondent No.1 was strongly repudiated and it was also de nied that an area of 2 rod
and 15 poles was utilized, rather only an area of 1 -rod and 6 -pol was utilized for the gas
transmission pipe line.
4. The trial court out of the divergent pleas of the parties,
framed the following issues:
1. Whether the Sui Southern Gas Company acquired the land of the petitioner measuring
2 rod 15 pole?
2. Whether the market value of the land situated in Mohal, Mouza Chashma Belili is not
less than Rs. 200/ - per sq.ft?
3. Whether the petitioner filed an objection on 26.12.19 98 before AC/SDM Saddar
Quetta on which no request was heard then the AC/SDM again issued a Notification
NO. 44940(6)ACS (Misce).94 dated 9.4.99 on which petitioner again replied
objection filed on 20.4.1999 thereafter petitioner again filed a representati on on
4.9.1999 in which petitioner specifically agitated the rate of the land was not given by
the Collector/AC/SDM Saddar in accordance with the market value?
4. Whether the land in dispute is situated in one of the best area of Quetta and was a
constant source of earning of the petitioner hence, he is entitled to compensatory cost
which was not awarded by the respondents?
5. Whether the petitioner is entitled to claim the relief for the compensation with regard
to acquired land by the respondents?
5. The respondent No.1 in order to prove his case produced four witnesses and finally
recorded his own statement, while in rebuttal the representatives of both the appellants also
recorded their statements. On conclusion of the trial the learned trial court vide judgment and
decree dated 19th June 2002, dismissed the reference of the respondent No.1. Feeling
aggrieved the respondent No.1 preferred Regular First Appeal No. 41 of 2002 before this
court, which was partly accepted and the matter was remanded back to t he trial court for
deciding afresh after affording opportunities of hearing to both the parties. On remand the
learned trial court appointed a local commissioner, who on inspecting the site prepared the
report. The learned trial court again on hearing the parties, accepted the reference vide
judgment and decree dated 10th April 2012. The appellants (SSGC & AC/SDM Saddar
Quetta) feeling aggrieved of the judgment of the trial court, respectively preferred instant
appeals.
6. I have heard the learned counsel f or the parties at reasonable, length and have also
gone through the record.
7. The respondent No.1 pressed his reference being aggrieved of the measurement of the
land acquired by the appellants and also from the rate fixed by the AC/SDM vide award EX -
D/B, with the contention that the appellants have acquired land measuring 2 rod and 15
poles, but contrarily, the award was issued only to the extent of 1 Rod and 6 pol, whereas,
the market value of the land was around about 200 per sq:ft, but the appellant (A C/SDM) has
fixed the rate of Rs. 15/ - per sq:ft. In order to prove his stance, the respondent No.1 produced
four witnesses. PW -1 Wazir Muhammad, Patwari, Halqa Belili produced the revenue record
of the ownership of the land of respondent No.1 as Ex -P/1, Ex -P/2 and Ex -P/3. PW -2 Abdul
Hameed, deposed that the property in question is situated in between the railway line and the
main road, which is in the ownership of Mehrullah Bazai. On the land of the respondent
No.1, the gas pipe line was laid some 5/6 years ago. The land on which the pipe line is laid,
measuring 24000/25000 sq.ft. The value of the adjacent land is 130/ - per sq.ft. PW -3, Abdul
Habib, deposed that the property in dispute is situated near Belili check post, the gas pipe
line was laid down some 4/5 years back and the land adjacent to the suit property is sold @
Rs.80/90 per sq.ft and he himself has purchased the land @ Rs. 90/ - per sq:ft adjacent to the
land in question. PW -4 Haji Dad Khan Patwari, Tehsil Office, Saddar Quetta, produced the
Mutat ion Entries Nos. 441 and 446 as Ex -P/4-A Ex -P/4-B respectively.
In rebuttal the representative of appellant (SSGC) recorded his statement and deposed
that the dispute between the parties is with regard to compensation, the land in question is
situated at Belili check post, which was in the ownership of respondent No.1 and others and
was acquired by the Sui Southern Gas Company through award. He produced the award
dated 09th August 1999 as Ex -D/B. The respondent No.1 was given opportunity, but he did
not fi le any objection. The respondent No.1's assertion is that some extra land was also
acquired, while the amount of the acquired land as pre the then market value was paid to the
respondent No.1. In cross -examination he showed ignorance that how the rate of l and @ Rs.
15/- was fixed.
The representative of appellant (AC/SDM, Saddar, Quetta) also recorded his
statement and produced notice under Section 4 as Ex -D/1, detail of service of notice as EX -
D/2, objection filed by the respondent No.1 as EX -D/3, Notifica tion of Commissioner as EX -
D/4, Notice under Section 9 as Ex -D/5, application filed by the respondent No.1 as Ex -D/6,
covering letter of the Deputy Commissioner, Quetta along with application of the respondent
No.1 as EX -D/7. In cross -examination he showed ignorance that the market value of the land
in dispute is Rs.200 -300/- per sq.ft. He admitted that when the notice under Sections 4/9 was
given to the respondent No.1, he objected the same and also filed an application.
8. The respondent No.l's first clai m was that the appellant has acquired land measuring
2-Rod 15 -Pol, while the award was passed only to the extent of 1 -rod 6 -pole. The perusal of
the record shows that the stance of the respondent No.1 was specifically denied by the
appellants, while the no tice issued under Section 4 of the Act, 1894, also contained the
measurement as 1 -rod and 6 -poles and the declaration issued under Sections 6 and 7 EX -D/4
and Notice under section 9 (EX -D/5) dated 09th April 1999 contains the area 12523 sq.ft.
The objectio n filed by the respondent No.1 also confirmed the fact, as he in his objection
instead of acquired land showed his apprehension that his land would be wasted, which also
confirms that the land so acquired by the appellants was not more than, as mentioned i n the
award.
9. The local commissioner appointed by the learned trial court also inspected the site,
who was appointed to inspect the site in respect of measurement of the land, nature of the
land and effect of Gas pipe line as laid down. The local commiss ioner in presence of the
parties and patwari, got measured the land and found the length of the land 400 sq.ft, and
width as 32 feet, total 12800 sq.ft. The report of the local commissioner also elucidates the
picture that land measuring about 12800 was be ing utilized by the appellants for the purpose
of laying the gas pipe line, which was acquired by the appellants for the said purpose.
10. The appellant (AC/SDM Saddar Quetta) wile acquiring the land of the respondent
No.1 fixed the rate of the land so acq uired @ Rs. 15/ - per sq.ft, which was objected by the
respondent No.1 with the contention that the market value of the area was around about
Rs.200/ - per sq.ft. The stance of the respondent No.1 was not supported by his own
witnesses, the PW -2, himself sta ted that the market value of the adjacent land was around
about Rs.130/ - per sq.ft, whereas the PW -3 stated that he has purchased the land adjacent to
the land in dispute @ Rs. 90/ - per sq.ft. The respondent No.1 also produced the revenue
record of the are a as Ex -P/1, which shows that an area measuring 250 sq.ft was sold out by
the respondent No.1 against the sale consideration of Rs.50,000/ - (Rs.200 per sq.ft), Ex.P/2
shows that 20000 sq.ft was sold out against the sale consideration of Rs. 23,00,000/ - (Rs. 115
per sq.ft), while as per EX -P/3 a piece of land measuring 25591 was sold out against the sale
consideration of Rs. 2328781/ - (Rs. 91 per sq.ft), all these transactions took place in the year
1998. As per report of the local commissioner, the land is commercial in nature, as godowns,
petrol pump and shops existed nearby. Whereas the award EX -D/2 contains the highest,
lowest and average percentage rate in the area during the years 1996, 1997 and 1999 as
Rs.107.65/ -, Rs.5.19/ - and Rs.56.42/ -, respectivel y, and on relying the same, the appellant
(AC/SDM Saddar, Quetta) passed the award and fixed the compensation as Rs. 15/ - per sq.ft.
The appellant (AC/SDM Saddar Quetta), while fixing the rate of compensation, failed to
properly observe the correct market value of the property and also failed to consider that the
property was commercial in nature, rather mostly relied on the revenue record. It is well
settled principle of law that at the time of passing the award, the potential value of the
property has to be considered in addition to the market value of the land. In this behalf,
reference can be made to the case reported as 'Province of Sindh v. Ramzan and others' (PLD
2004 SC 512). The question as to how the price of acquired land is to be determined, has
been examined by the august Supreme Court in various cases in a comprehensive manner and
guideline has been provided. In this context, reliance can well be placed on the judgment
reported as `Province of Punjab v. Jamil Ahmad Malik' (2000 SCMR 870), wherei n the
Following principles were drawn for assessing the future prospects of the land acquired
under the Land Acquisition Act, 1894 in terms of section 23: -
(i) That an entry in the Revenue Record as to the nature of the land may not be
conclusive, for exa mple, land may be shown in Girdawri as Maira, but because of
existence of well near the land, makes it capable for becoming Chahi land.
(ii) That while determining the potentials of the land, the use of which the land is
capable of being put, ought to be considered.
(iii) That the market value of the land is normally to be taken as existing on the date
of publication of the notification under section 4(1) of the Act but for determining the
same, the price on which similar land situated in the vicinity was sold during the
preceding 12 months and not 6 -7 years back, may be considered including other
factors like potential value etc".
11. It is now well settled that the average sales of last one year is not conclusive proof for
determination of the market val ue of land while assessing the market value of the land, its
location and potentiality has also to be considered. Reference in this regard can be made to
the case of Pakistan Burma Shell Ltd. v. Province of N. -W.F.P. and 3 others (1993 SCMR
1700), wherein it was observed as under: -
"We are not persuaded to strike off the award on the rectitude of these submissions.
Section 23 makes mention of various matters to be considered in determining the
compensation. One of such factors enumerated therein is that t he date relevant for
determination of market value is the date of the notification under section 4. Not un -
often the market value has been described as what a willing purchaser would pay to
the willing seller. It may be observed that in assessing the marke t value of the land, its
location, potentiality and the price evidenced by the transaction of similar land at the
time of notification are the factors to be kept in view. One year's average of the sales
taking plate before the publication of the notificati on under section 4 of similar land is
merely one of the modes for ascertaining the market value and is not an absolute
yardstick for assessment".
The AC/SDM Saddar Quetta solely relied upon the revenue record of the adjacent
areas, but failed to assess the market value properly keeping in view the principles laid down
by the Hon'ble Supreme Court. The trial court while passing the impugned judgment rightly
observed that the compensation amount was not properly assessed and fixed, and rightly
concluded and fixed the amount of compensation.
12. As far as the additional amount of 15% compensation in consideration of compulsory
acquisition under Section 23(2), is concern ed, the same has rightly been awarded by the trial
court, as the land was not voluntarily given by the respondent No.1. Rather the same has
been acquired compulsorily. Whereas, the additional amount of 15% per annum of the
compensation from the date of not ification under Section 28 of the Act, 1894 is concerned,
the learned counsel and the attorney for respondent No.1 present in person, waives the right
to the extent and does not claim the amount of 15% under Section 28 of the Act, 1894.
In view of above d iscussion, we are clearly of the opinion that the learned trial court
has rightly passed the impugned order dated 10th April 2012, which does not suffer from any
illegality or irregularity, warranting interference by this court, however, the additional
amount of 15% granted under Section 28 of the Act, 1894, being waived of by the attorney
for the respondent No.1 is accepted and the decree to this extent only is hereby modified.
The petition stands disposed of with above modification, however, the parties are left
to bear their own costs.
Office to draw decree sheet in the above terms, by excluding 15% additional amount
granted under Section 28 of the Land Acquisition Act, 1894.
ZC/61/Bal. Order accordingly.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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