2016 Y L R 2465
2016 Y L R 2465
[Supreme Court (AJ&K)]
Before Mohammad Azam Khan, C.J. and Masood Ahmed Sheikh, J
KHADIM HUSSAIN and 5 others---Appellants
Versus
COLLECTOR LAND ACQUISITION, MANGLA DAM and another---
Respondents
Civil Appeal No.37 of 2014, decided on 16th Noyember, 2015.
(On appeal from the judgment and decree of the High Court dated 9.12.2013 in Civil Appeals Nos. 453 and 463 of 2009).
(a) Land Acquisition Act (I of 1894)---
----Ss.18, 4 & 23---Acquisition of land---Reference to Court---Enhancement of compensation--- Market value--Determination---Scope---Best evidence for determination of market value might be the sale deeds executed prior to the issuance of notification under S.4 of Land Acquisition Act, 1894 and the ones executed thereafter within 12 months period in the vicinity---If sale deeds of the land situated in the same village were not available then sale-deeds executed in the adjoining village could be considered while determining the market value of the land---Compensation of awarded land should be determined while taking into consideration the average value of land prescribed in the sale deeds---Compensation amount was based on average value of sale deeds and not land along witi, 15% compulsory acquisition charges---Impugned judgment was set aside and appeal was allowed in circumstances.
(b) Land Acquisition Act (I of 1894)---
----S. 23--- `Maket value'--- Meaning.
Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project, Zone-1, Mirpur and 2 others 2013 SCR 1224 rel.
Raja Hassan Akhtar, Advocate for Appellants.
Javed Najam-us-Saqib, Advocate for Respondents.
Date of hearing: 27th October, 2015.
JUDGMENT
MASOOD AHMED SHEIKH, J.--The captioned appeal arises out of the judgment and decree of the High Court dated 9.12.2013, whereby the appeal filed by Khadim Hussain and others, appellants, herein, has been accepted, whereas, the appeal filed by WAPDA and others has been dismissed.
2. The precise facts of the case are that three reference applications; one by Khadim Hussain and others; second by Karam Hussain and others; and third by Khalid Jahangir and others, were filed before the Collector Mangla Dam Raising Project, Mirpur under section 18 of the Land Acquisition Act, 1894 against award No.38/2007 dated 15.8.2007. In all the reference applications, it was prayed that the reference applications may be forwarded to the Reference Judge, Mangla Dam Raising Project. The Collector, Mangla Dam forwarded all the reference applications to the Reference Judge Mangla Dam Raising Project. It was alleged in the reference applications that the petitioners are residents of Bhagal Chak, Tehsil Dadyal, District Mirpur. Through award No.38 of 2007, their land was acquired for the purpose of Mangla Dam Raising Project. The compensation of the acquired land determined by the Collector Land Acquisition is less than that of the market value. At present, the value of the land is more than Rs.2,000,000 per kanal. In response to notice received under sections 9 and 10 of the Land Acquisition Act, the petitioners through pleader had submitted written objections, whereby, they categorically stated that the amount of compensation determined by the Collector Land Acquisition is not acceptable by them for the reason of its being less than that of the market value, but the written objections have not been taken into consideration by the Collector Land Acquisition while assessing and determining the amount of compensation. The Collector contrary to the written objections filed by the petitioners-appellants, has determined the amount of compensation of the land for its kind Hail as Rs.500,000 kanal, Maira Awal as Rs.450,000 per kanal and for its kind of Maira Doem as Rs.350,000 per kanal. The learned Reference Judge, consolidated all the reference applications and vide judgment dated 30.10.2008, the amount of compensation for kind of land as Hail was enhanced to Rs.540,000 for Maira Awal as Rs.480,000 and 370,000 of its kind of Maira Doem along with 15% compulsory acquisition charges. Feeling aggrieved from the said judgment of the Reference Judge, the appellants-land owners preferred an appeal in the High Court on 9.1.2009, the WAPDA and others also filed an appeal before the High Court on 28.1.2009. A learned single Judge in the High Court consolidated both the appeals and decided them through the impugned judgment and decree dated 9.12.2013, whereby the appeal filed by WAPDA and others has been dismissed, whereas, while accepting the appeal of the present appellants, the High Court has enhanced the amount of compensation in the following manner:--
Sr. No. Kind of land Value assessed by Reference Judge per kanal Enhanced compensation money by this Court per kanal.
1. Hail Rs.5,40,000 Rs.6,00,000
2. Mera awal Rs.4,80,000 Rs.5,30,000
3. Mera doem Rs.3,70,000 Rs.4,10,000
4. Other ghair mumkin Rs.1,65,000 Rs. 1,85,000
3. Raja Hassan Akhtar, Advocate, the learned counsel for the appellants argued that the impugned judgment of the High Court as well as that of the Reference Judge is against law and facts of the case. He further argued that the land of the appellants, land owners, is a precious land and its potential value is very high because of its being situate near Dadyal City, which is a commercial area, but the Collector Land Acquisition has not taken into consideration this important factor while determining and assessing the amount of compensation. He further argued that the market value of the land means the value which a willing purchaser is ready to pay to a willing seller and after assessing the market value the potentiality, location, amount of sale of similar kind of land in the vicinity have to be kept in mind, but the Courts below have ignored this important element while handing down the impugned judgments. The learned counsel maintained that the appellants through reliable evidence before the trial Court have proved the value the importance and the potential value of the land but the evidence was not rebutted by the other side rather the evidence produced by the respondents also supported the version of the appellants, but despite that, a meager amount of compensation was enhanced. In the evidence produced before the trial Court, it has been fully proved that the market value of the acquired land is more than Rs.2,000,000 per kanal for its kind Hail, Maira Avval and Choi and the appellants are entitled to get the compensation amount worth Rs.2,000,000 per. kanal, but the courts below have not appreciated the evidence in its true perspective, therefore, the judgment of the trial Court as well as the High Court is not maintainable.
4. On the other hand, Mr. Javed Najam-us-Saqib, Advocate, the learned counsel for the respondents while controverting the arguments of the learned counsel for the appellants has stated that the Collector Land Acquisition determined the amount of compensation keeping in view the location, market value, nature of property and all other ingredients provided under section 23 of the Land Acquisition Act, 1894 as well as the Land Acquisition Rules, 1994. He further argued that the compensation amount already enhanced by the Reference Judge was sufficient. On filing of appeal by the appellants, herein, before the High Court, the learned High Court while modifying the judgment of the Reference Judge has further enhanced the compensation amount, which is more than enough. Now through the instant appeal the appellants want further enhancement in the amount of compensation, which is not justified in any way as maximum enhancement in the compensation amount has already been made in the impugned judgment. He further argued that the land in dispute was acquired for public purpose to upraise Mangla Dam to generate and enhanced the electricity capacity to meet the energy requirement of the country to improve the agriculture sector so that tne country may be saved from famine and draught, which is in the best interest of general public, therefore, the appeal filed by the appellants may be dismissed.
5. We have heard the learned counsel for the parties and also gone through the record made available. As per version of the appellants the market value of the acquired land is 2,000,000 per kanal and in support of their assertion they led cogent, convincing and reliable evidence before trial Court but the same was not considered by both the Courts below while handing down the impugned judgments. On the other hand, the assertion of the counsel for the respondents is that the Collector Land Acquisition has determined the amount of compensation keeping in view the location of the land, market value, nature of the property and all other provisions provided under section 23 of the Land Acquisition Act, 1894. There appears no dispute between the parties with regard to determination of the compensation amount according to the market value. From the averments of both the parties it is evident that the amount of compensation of the acquired land should have been assessed in line with the market value. The claim of the appellants is that their land has been acquired against a meager amount of compensation less than the market value, whereas, as per stance of the respondents the land of the land owners has been acquired keeping in view the nature and market value of the land. Meaning thereby that both the parties are willing to sell and purchase their land according to market value. Thus, the proposition comes to light here directly relates to interpretation of market value. Therefore, first we would like to explain here the meaning of market value and thereafter it has to be seen in the light of record and evidence produced by the parties in support of their claim that which of the parties succeeds to substantiate the market value. This Court in case reported as Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project, Zone-1, Mirpur and 2 others (2013 SCR 1224), while defining the meaning of market value has observed in para 6 of the referred judgment as under:--
"6. Before proceeding further, it may be observed that the basic principle laid down by the apex Court of Pakistan and the apex Court of the State of Azad Jammu and kashmir is that the land is not to be valued merely by reference to the use to which it is being put at the relevant time, but also by a reference to the use to which it is reasonably capable of being put in future; and the market value is the potential value of the property at the time of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time. The price of the Land acquired had to be fixed in accordance with the aim and rule that willing buyer was ready to pay and willing seller was prepared to receive the price so fixed for whole of the land, had to be kept in view."
Thus, it is clear that "market value" means the potential value of property at the time of acquisition which would be paid by a willing buyer to a willing seller. All the sale-deeds mentioned above have been executed willingly amount the buyers and sellers. After elaborating the meaning of "market value", we come to the evidence produced by the appellants in the Reference Court in support of their claim. A perusal of record shows that appellants brought on record the certain sale-deeds in furtherance of their claim to prove the market value of the land. A sale-deed Exh. "PH" registered on 28.6.2005 in respect of land measuring 10 marla, situated in village Bhagal Chak, Tehsil Dadyal in consideration of Rs.550,000. Another sale-deed Exh. "P1" registered on 14.7.2005 in respect of land measuring 6 kanals 5 marla, situate in the same village, which was sold in consideration of Rs.7,500,000. The third sale-deed, Exh. "PJ" executed on 17.12.2004 in respect of land measuring 2 kanal 9 marla in consideration of Rs.3,500,000. Another sale-deed Exh. "PK" registered on 4.1.2005 in respect of land measuring 1 kanal 6 marla, situate in the same village, in consideration of Rs.900,000. The sale-deed Exh."PL" registered on 29.7.2005 in respect of land measuring 1 kanal 9 marla, situate in the same village in consideration of 600,000 and a sale-deed Exh. "PG" registered on 6.10.2003 regarding land measuring 12 marla, situate in the same village in consideration of Rs.1,000,000. In addition to these sale-deeds, the appellants also produced Abdul Waheed, Patwari, Arshad Mehmood, Muhammad Tasleem and one of the appellants, Khalid Jahangir, as witness in support of their reference. Abdul Waheed, Patwari, submitted a report Exh."PA", a copy of Khasra Girdawari and stated in his statement that the kind of land is orchard, which is better than the Hail and Maira Awal kind of the land. In the cross-examination, he stated that survey No.832, is a orchard and was recorded as kind of orchard before the year 1996. The other witnesses of the appellant also supported the averments of the appellants taken in the reference application. On the contrary, the respondents have not produced any kind of oral or documentary evidence to rebut the claim of the appellants. However, the counsel for the respondents before the Reference Court stated that the respondents rely on the record, however, they did not place any kind of record before the Reference Judge rather they mean the record produced and exhibited by the appellants before the Reference Court.
6. The best evidence for determination of the market value of the acquired land may be the sale-deeds executed prior to the issuance of notification under section 4 and the sale-deeds executed thereafter within 12 months period in the same vicinity. If the sale-deeds of the land situated in the same village are not available then the sale-deeds executed in the adjoining village can be considered while determining the market value of the land. The perusal of record shows that in all the reference applications the land-owners have heavily relied upon the sale-deeds Exh. "PH", Exh. "PI", Exh. "PJ", Exh. "PK", Exh.. "PL" and Exh. "PG". Thus, for the purpose of determination of market value of sale-deeds may be taken into consideration. This Court in a case titled Ch. Muhammad Siddigue Advocate and others v. Azad Government and others (Civil Appeal No.25 of 2010, decided on 15.07.2011) while dealing with the identical proposition observed in para 9 as follows:--
"9. The appellants have attached with their reference, a sale-deed, executed on 07.06.2000, through which 11 marlas of the land in village Ballah was sold at the price of Rs.22,00,000 per kanal. Another sale-deed executed on 04.02.2006, through which 2 kanal and 3-1/2 marlas land was sold at the price of 21,86,000 per kanal. Another document which is notification of Collector District Mirpur dated 31.12.2002, in which price of different lands has been shown through valuation table. As provided in the said notification, in village, Ballah, the Agricultural land is valued at Rs.1,10,000 per marla, meaning thereby that the price of one kanal is valued at Rs.22,00,000 per kanal. Though the appellants have also filed a sale-deed of plot No.13 measuring one kanal in Sector F-3 Mirpur, and price of said land has been paid as Rs.1,80,00,000 per kanal. In our view this sale-deed pertains to a developed sector of Mirpur city hence, it is not in comparison with the land situated in village Ballah through the said village is within the Municipal limits of Municipal Corporation Mirpur. We are of the considered view that the Collector, the learned Reference Judge and the learned Chief Justice of the High Court have not kept in view the market value of the land. Respondents, herein, in Appeal No.25 of 2010, who are appellants in Appeal No.26 of 2010 have not produced any evidence, oral or documentary, whatsoever, before the learned Reference Judge."
This Court in another case reported as Akhtar Hussain and others v. Azad Govt. and others 2014 MLD 179 has determined the market value of the acquired land while taking into consideration the sale-deeds executed in the same vicinity. Thus, for determination of the market value of the land the sale-deeds registered on 28.6.2005, Exh. "PH", 14.7.2005 Exh. "PI" , 17.12.2004 Exh. PJ " and 4 .1.2005 , Exh. "PK" , 29.7.2005 Exh. "PL" and 6.10.2003 Exh. "PG" are to be considered.
7. In the case in hand, the sale-deeds relied upon by the land-owners show that the land measuring 10 marla situate in the same vicinity has been sold out against the price of Rs.55000 per marla, the land measuring 6 kanal 5 marla has been sold against a consideration of Rs.60000 per marla, land measuring 2 kanal 9 marla has been sold out in consideration of Rs.71429 per marla, land measuring 1 kanal 6 marla has been sold out against the price of Rs.34616 per marla, land masuring 1 kanal 9 marla has been sold out in consideration of Rs.20690 per marla and land measuring 12 marla has been sold out against a price of Rs.83334 per marla. Thus, while following the dictum laid down in the referred judgments the compensation of awarded land shall be determined while taking into consideration the average value of the land prescribed in the sale-deeds, which comes to Rs.55976 per marla. On the basis of average value of the sale-deeds, the compensation amount is fixed as Rs.55976/- per marla along with 15% compulsory acquisition charges.
The result of the above discussion is that the impugned judgment of the High Court is set aside and the appeal filed by appellants is accepted in the manner as
indicated above. With no order as to the costs.
ZC/11/SC(AJ&K) Appeal allowed.
[Supreme Court (AJ&K)]
Before Mohammad Azam Khan, C.J. and Masood Ahmed Sheikh, J
KHADIM HUSSAIN and 5 others---Appellants
Versus
COLLECTOR LAND ACQUISITION, MANGLA DAM and another---
Respondents
Civil Appeal No.37 of 2014, decided on 16th Noyember, 2015.
(On appeal from the judgment and decree of the High Court dated 9.12.2013 in Civil Appeals Nos. 453 and 463 of 2009).
(a) Land Acquisition Act (I of 1894)---
----Ss.18, 4 & 23---Acquisition of land---Reference to Court---Enhancement of compensation--- Market value--Determination---Scope---Best evidence for determination of market value might be the sale deeds executed prior to the issuance of notification under S.4 of Land Acquisition Act, 1894 and the ones executed thereafter within 12 months period in the vicinity---If sale deeds of the land situated in the same village were not available then sale-deeds executed in the adjoining village could be considered while determining the market value of the land---Compensation of awarded land should be determined while taking into consideration the average value of land prescribed in the sale deeds---Compensation amount was based on average value of sale deeds and not land along witi, 15% compulsory acquisition charges---Impugned judgment was set aside and appeal was allowed in circumstances.
(b) Land Acquisition Act (I of 1894)---
----S. 23--- `Maket value'--- Meaning.
Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project, Zone-1, Mirpur and 2 others 2013 SCR 1224 rel.
Raja Hassan Akhtar, Advocate for Appellants.
Javed Najam-us-Saqib, Advocate for Respondents.
Date of hearing: 27th October, 2015.
JUDGMENT
MASOOD AHMED SHEIKH, J.--The captioned appeal arises out of the judgment and decree of the High Court dated 9.12.2013, whereby the appeal filed by Khadim Hussain and others, appellants, herein, has been accepted, whereas, the appeal filed by WAPDA and others has been dismissed.
2. The precise facts of the case are that three reference applications; one by Khadim Hussain and others; second by Karam Hussain and others; and third by Khalid Jahangir and others, were filed before the Collector Mangla Dam Raising Project, Mirpur under section 18 of the Land Acquisition Act, 1894 against award No.38/2007 dated 15.8.2007. In all the reference applications, it was prayed that the reference applications may be forwarded to the Reference Judge, Mangla Dam Raising Project. The Collector, Mangla Dam forwarded all the reference applications to the Reference Judge Mangla Dam Raising Project. It was alleged in the reference applications that the petitioners are residents of Bhagal Chak, Tehsil Dadyal, District Mirpur. Through award No.38 of 2007, their land was acquired for the purpose of Mangla Dam Raising Project. The compensation of the acquired land determined by the Collector Land Acquisition is less than that of the market value. At present, the value of the land is more than Rs.2,000,000 per kanal. In response to notice received under sections 9 and 10 of the Land Acquisition Act, the petitioners through pleader had submitted written objections, whereby, they categorically stated that the amount of compensation determined by the Collector Land Acquisition is not acceptable by them for the reason of its being less than that of the market value, but the written objections have not been taken into consideration by the Collector Land Acquisition while assessing and determining the amount of compensation. The Collector contrary to the written objections filed by the petitioners-appellants, has determined the amount of compensation of the land for its kind Hail as Rs.500,000 kanal, Maira Awal as Rs.450,000 per kanal and for its kind of Maira Doem as Rs.350,000 per kanal. The learned Reference Judge, consolidated all the reference applications and vide judgment dated 30.10.2008, the amount of compensation for kind of land as Hail was enhanced to Rs.540,000 for Maira Awal as Rs.480,000 and 370,000 of its kind of Maira Doem along with 15% compulsory acquisition charges. Feeling aggrieved from the said judgment of the Reference Judge, the appellants-land owners preferred an appeal in the High Court on 9.1.2009, the WAPDA and others also filed an appeal before the High Court on 28.1.2009. A learned single Judge in the High Court consolidated both the appeals and decided them through the impugned judgment and decree dated 9.12.2013, whereby the appeal filed by WAPDA and others has been dismissed, whereas, while accepting the appeal of the present appellants, the High Court has enhanced the amount of compensation in the following manner:--
Sr. No. Kind of land Value assessed by Reference Judge per kanal Enhanced compensation money by this Court per kanal.
1. Hail Rs.5,40,000 Rs.6,00,000
2. Mera awal Rs.4,80,000 Rs.5,30,000
3. Mera doem Rs.3,70,000 Rs.4,10,000
4. Other ghair mumkin Rs.1,65,000 Rs. 1,85,000
3. Raja Hassan Akhtar, Advocate, the learned counsel for the appellants argued that the impugned judgment of the High Court as well as that of the Reference Judge is against law and facts of the case. He further argued that the land of the appellants, land owners, is a precious land and its potential value is very high because of its being situate near Dadyal City, which is a commercial area, but the Collector Land Acquisition has not taken into consideration this important factor while determining and assessing the amount of compensation. He further argued that the market value of the land means the value which a willing purchaser is ready to pay to a willing seller and after assessing the market value the potentiality, location, amount of sale of similar kind of land in the vicinity have to be kept in mind, but the Courts below have ignored this important element while handing down the impugned judgments. The learned counsel maintained that the appellants through reliable evidence before the trial Court have proved the value the importance and the potential value of the land but the evidence was not rebutted by the other side rather the evidence produced by the respondents also supported the version of the appellants, but despite that, a meager amount of compensation was enhanced. In the evidence produced before the trial Court, it has been fully proved that the market value of the acquired land is more than Rs.2,000,000 per kanal for its kind Hail, Maira Avval and Choi and the appellants are entitled to get the compensation amount worth Rs.2,000,000 per. kanal, but the courts below have not appreciated the evidence in its true perspective, therefore, the judgment of the trial Court as well as the High Court is not maintainable.
4. On the other hand, Mr. Javed Najam-us-Saqib, Advocate, the learned counsel for the respondents while controverting the arguments of the learned counsel for the appellants has stated that the Collector Land Acquisition determined the amount of compensation keeping in view the location, market value, nature of property and all other ingredients provided under section 23 of the Land Acquisition Act, 1894 as well as the Land Acquisition Rules, 1994. He further argued that the compensation amount already enhanced by the Reference Judge was sufficient. On filing of appeal by the appellants, herein, before the High Court, the learned High Court while modifying the judgment of the Reference Judge has further enhanced the compensation amount, which is more than enough. Now through the instant appeal the appellants want further enhancement in the amount of compensation, which is not justified in any way as maximum enhancement in the compensation amount has already been made in the impugned judgment. He further argued that the land in dispute was acquired for public purpose to upraise Mangla Dam to generate and enhanced the electricity capacity to meet the energy requirement of the country to improve the agriculture sector so that tne country may be saved from famine and draught, which is in the best interest of general public, therefore, the appeal filed by the appellants may be dismissed.
5. We have heard the learned counsel for the parties and also gone through the record made available. As per version of the appellants the market value of the acquired land is 2,000,000 per kanal and in support of their assertion they led cogent, convincing and reliable evidence before trial Court but the same was not considered by both the Courts below while handing down the impugned judgments. On the other hand, the assertion of the counsel for the respondents is that the Collector Land Acquisition has determined the amount of compensation keeping in view the location of the land, market value, nature of the property and all other provisions provided under section 23 of the Land Acquisition Act, 1894. There appears no dispute between the parties with regard to determination of the compensation amount according to the market value. From the averments of both the parties it is evident that the amount of compensation of the acquired land should have been assessed in line with the market value. The claim of the appellants is that their land has been acquired against a meager amount of compensation less than the market value, whereas, as per stance of the respondents the land of the land owners has been acquired keeping in view the nature and market value of the land. Meaning thereby that both the parties are willing to sell and purchase their land according to market value. Thus, the proposition comes to light here directly relates to interpretation of market value. Therefore, first we would like to explain here the meaning of market value and thereafter it has to be seen in the light of record and evidence produced by the parties in support of their claim that which of the parties succeeds to substantiate the market value. This Court in case reported as Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project, Zone-1, Mirpur and 2 others (2013 SCR 1224), while defining the meaning of market value has observed in para 6 of the referred judgment as under:--
"6. Before proceeding further, it may be observed that the basic principle laid down by the apex Court of Pakistan and the apex Court of the State of Azad Jammu and kashmir is that the land is not to be valued merely by reference to the use to which it is being put at the relevant time, but also by a reference to the use to which it is reasonably capable of being put in future; and the market value is the potential value of the property at the time of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time. The price of the Land acquired had to be fixed in accordance with the aim and rule that willing buyer was ready to pay and willing seller was prepared to receive the price so fixed for whole of the land, had to be kept in view."
Thus, it is clear that "market value" means the potential value of property at the time of acquisition which would be paid by a willing buyer to a willing seller. All the sale-deeds mentioned above have been executed willingly amount the buyers and sellers. After elaborating the meaning of "market value", we come to the evidence produced by the appellants in the Reference Court in support of their claim. A perusal of record shows that appellants brought on record the certain sale-deeds in furtherance of their claim to prove the market value of the land. A sale-deed Exh. "PH" registered on 28.6.2005 in respect of land measuring 10 marla, situated in village Bhagal Chak, Tehsil Dadyal in consideration of Rs.550,000. Another sale-deed Exh. "P1" registered on 14.7.2005 in respect of land measuring 6 kanals 5 marla, situate in the same village, which was sold in consideration of Rs.7,500,000. The third sale-deed, Exh. "PJ" executed on 17.12.2004 in respect of land measuring 2 kanal 9 marla in consideration of Rs.3,500,000. Another sale-deed Exh. "PK" registered on 4.1.2005 in respect of land measuring 1 kanal 6 marla, situate in the same village, in consideration of Rs.900,000. The sale-deed Exh."PL" registered on 29.7.2005 in respect of land measuring 1 kanal 9 marla, situate in the same village in consideration of 600,000 and a sale-deed Exh. "PG" registered on 6.10.2003 regarding land measuring 12 marla, situate in the same village in consideration of Rs.1,000,000. In addition to these sale-deeds, the appellants also produced Abdul Waheed, Patwari, Arshad Mehmood, Muhammad Tasleem and one of the appellants, Khalid Jahangir, as witness in support of their reference. Abdul Waheed, Patwari, submitted a report Exh."PA", a copy of Khasra Girdawari and stated in his statement that the kind of land is orchard, which is better than the Hail and Maira Awal kind of the land. In the cross-examination, he stated that survey No.832, is a orchard and was recorded as kind of orchard before the year 1996. The other witnesses of the appellant also supported the averments of the appellants taken in the reference application. On the contrary, the respondents have not produced any kind of oral or documentary evidence to rebut the claim of the appellants. However, the counsel for the respondents before the Reference Court stated that the respondents rely on the record, however, they did not place any kind of record before the Reference Judge rather they mean the record produced and exhibited by the appellants before the Reference Court.
6. The best evidence for determination of the market value of the acquired land may be the sale-deeds executed prior to the issuance of notification under section 4 and the sale-deeds executed thereafter within 12 months period in the same vicinity. If the sale-deeds of the land situated in the same village are not available then the sale-deeds executed in the adjoining village can be considered while determining the market value of the land. The perusal of record shows that in all the reference applications the land-owners have heavily relied upon the sale-deeds Exh. "PH", Exh. "PI", Exh. "PJ", Exh. "PK", Exh.. "PL" and Exh. "PG". Thus, for the purpose of determination of market value of sale-deeds may be taken into consideration. This Court in a case titled Ch. Muhammad Siddigue Advocate and others v. Azad Government and others (Civil Appeal No.25 of 2010, decided on 15.07.2011) while dealing with the identical proposition observed in para 9 as follows:--
"9. The appellants have attached with their reference, a sale-deed, executed on 07.06.2000, through which 11 marlas of the land in village Ballah was sold at the price of Rs.22,00,000 per kanal. Another sale-deed executed on 04.02.2006, through which 2 kanal and 3-1/2 marlas land was sold at the price of 21,86,000 per kanal. Another document which is notification of Collector District Mirpur dated 31.12.2002, in which price of different lands has been shown through valuation table. As provided in the said notification, in village, Ballah, the Agricultural land is valued at Rs.1,10,000 per marla, meaning thereby that the price of one kanal is valued at Rs.22,00,000 per kanal. Though the appellants have also filed a sale-deed of plot No.13 measuring one kanal in Sector F-3 Mirpur, and price of said land has been paid as Rs.1,80,00,000 per kanal. In our view this sale-deed pertains to a developed sector of Mirpur city hence, it is not in comparison with the land situated in village Ballah through the said village is within the Municipal limits of Municipal Corporation Mirpur. We are of the considered view that the Collector, the learned Reference Judge and the learned Chief Justice of the High Court have not kept in view the market value of the land. Respondents, herein, in Appeal No.25 of 2010, who are appellants in Appeal No.26 of 2010 have not produced any evidence, oral or documentary, whatsoever, before the learned Reference Judge."
This Court in another case reported as Akhtar Hussain and others v. Azad Govt. and others 2014 MLD 179 has determined the market value of the acquired land while taking into consideration the sale-deeds executed in the same vicinity. Thus, for determination of the market value of the land the sale-deeds registered on 28.6.2005, Exh. "PH", 14.7.2005 Exh. "PI" , 17.12.2004 Exh. PJ " and 4 .1.2005 , Exh. "PK" , 29.7.2005 Exh. "PL" and 6.10.2003 Exh. "PG" are to be considered.
7. In the case in hand, the sale-deeds relied upon by the land-owners show that the land measuring 10 marla situate in the same vicinity has been sold out against the price of Rs.55000 per marla, the land measuring 6 kanal 5 marla has been sold against a consideration of Rs.60000 per marla, land measuring 2 kanal 9 marla has been sold out in consideration of Rs.71429 per marla, land measuring 1 kanal 6 marla has been sold out against the price of Rs.34616 per marla, land masuring 1 kanal 9 marla has been sold out in consideration of Rs.20690 per marla and land measuring 12 marla has been sold out against a price of Rs.83334 per marla. Thus, while following the dictum laid down in the referred judgments the compensation of awarded land shall be determined while taking into consideration the average value of the land prescribed in the sale-deeds, which comes to Rs.55976 per marla. On the basis of average value of the sale-deeds, the compensation amount is fixed as Rs.55976/- per marla along with 15% compulsory acquisition charges.
The result of the above discussion is that the impugned judgment of the High Court is set aside and the appeal filed by appellants is accepted in the manner as
indicated above. With no order as to the costs.
ZC/11/SC(AJ&K) Appeal allowed.
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