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Regular First Appeal No. 24 of 1960, decided on 2nd March 1960.

S. 54‑Revision from Court's award‑Not competent‑Revision treated as appeal‑Time extended for making up deficiency of court‑fee‑Civil Procedure Code (V of 1908), S. 149‑Extension of lime in one case not treated as extension in other cases arising from same scheme of acquisition Separate applications necessary in each case.

, S. IS‑Acquisition of land for satellite town‑District Judge dismissing reference as incompetent for reason that owner had accepted Collector's award Case covered by Punjab Town Improvement Act (IV of 1922), S. 66 (3) as amended by Punjab Town Improvement (Amendment) Act (II of 1953)‑Government, however, not appointing Tribunal envisaged by S. 66 (1) (b)‑District Judge's order open to revision by High Court under Civil Procedure Code (V of 1908), S. 115 Punjab Town Improvement Act (IV of 1922), S. 59 (d).

A reference, made under section 18, Land Acquisition Act (I of 1894), in respect of land proposed to be acquired for a satellite town, was dismissed by the District Judge for the reason that the owner had accepted the award of the Collector. The owner took a Revision petition to the High Court from the order of dismissal.

On the question whether the Revision petition was competent in view of section 59 (d), Punjab Town Improvement Act (IV of 1922)

Held, that the power to revise an order passed by a District Judge dealing with a case under the Land Acquisition Act, 1894, read with the Punjab Town Improvement Act, 1922, existed in the High Court.

According to sub‑clause (b) of subsection (1) of section 66 of the Punjab Town Improvement Act, if a Tribunal is set up, sections 57 to 66 and section 73 of that Act were to become appli cable, and according to clause (d) of section 59 of the Punjab Town Improvement Act, the award of a Tribunal was to be final. There fore, if the order were that of a tribunal, it would be immune from scrutiny by the High Court either by an appeal or by a petition for revision, but this result does not follow if the case is heard by the District Judge sitting alone which will happen if the Provincial Government does not constitute a Tribunal and leaves the matter to be dealt with by the District Judge sitting alone.

When a reference under section 18 of the Land Acquisition Act, 1894 is made with regard to acquisition of property under the provisions of the Punjab Town Improvement Act, 1922, and it is disposed of by the Court an appeal against the award lies to the High Court by virtue of section 54 of the Land Acquisition Act. Section 3 of the Code of Civil Procedure (V of 1908) makes it clear that for the purposes of that Code, the District Judge is subordinate to the High Court and every Civil Court of a grade inferior to that of the District Judge and every Court of Small Causes is subordinate to the High Court and the District Judge. Section 115 of the Code of Civil Procedure is to the effect that the High Court can call for the record of any case which has been decided by any Court subordinate to the High Court and in which no appeal lies thereto, and can in specified circumstances exercise powers of revision. It follows, therefore, that an order of the District Judge under the Land Acquisition Act, 1894, is open to revision by the High Court under the provisions of section 115 of the Code of Civil Procedure if the conditions mentioned in that section are satisfied, because the District Judge in such cases does not act as persona designata but as the District Court.

Mian Abdul Aziz v. The Punjab Province I L R 1943 Lah. 677 ref.

S. 18‑Reference to District Judge by Collector‑District Judge has jurisdiction to decide whether Reference was at all competent e.g. whether it was time barred or made in spite of acceptance of award by owner‑Civil Procedure Code (V of 1908), S. 115‑Whether Revision lies on ground of jurisdiction from District Judge's order holding Reference incompetent: [Anant Ram v. Secretary of State A I R 1937 Cal. 680 and Mahadev Krishna Parker v. Mumlitdar of Alibag A I R 1944 Bom. 200 rel. ; Sri Venkateswaraswami Varu Bezwada v. Sub Collector Bezwada A I R 1942 Mad. 327 ; Pramatha Nath Mullick Bahadur v. Secretary of State A I R 1930 P C 64 ; Abu Bakar v. Pearey Mohan Mukerjee I L R 34 Cal. 451 and British India Steam Navigation Co. v. Secretary of State I L R 38 Cal. 230 distinguished; S. Attar Singh R. S. Sardar Hari Singh v. Secretary of State A I R 1940 Pesh. 35 dissented from.]

Ss. 18 & 31‑Acceptance of compensation under protest‑Question of fact‑District Judge dismissing reference on ground that owner had accepted compensa tion‑Evidence as to "acceptance under protest" not considered by District Judge‑Revision lies‑Civil Procedure Code (V of 1908), S. 115.

S. 23‑Evidence to prove market value must conform to standard laid down by Evidence Act (I of 1872).

S. 23‑Owner claiming more compensation than amount of Collector's award‑Burden on owner‑ to prove higher amount.

S. 23‑Market value Criterion‑"What a willing purchaser would pay a willing seller."

S. 23 (3) (a)‑"Use to which land was put"‑Land near town not being used for agricul tural purposes but bought for purpose of building‑To be treated as a building site and not as agricultural land:

S. 23‑Land revenue Difference between different kinds of land‑No criterion for fixing market value of such kinds.

S. 23‑Market value Ascertainment‑Standards.

Jamil Hussain Rizvi, A.‑G. and Iftikhar‑ul‑Haq Khan for Appellant.

R. Said Akbar and Muhammad Yusaf Khan for Muhammad Amin Khan for Respondent.

Date of hearing: 26th February 1960.

Land measuring about 800 acres in the Rawalpindi District and situated at no great distance from the City of Rawalpindi was acquired by the Provincial Government for setting up a satellite town. This land was situated in seven revenue estates, namely, Rawalpindi, Dhok Tahlian, Dhok Desraj, Dhok Hayat, Dina Hardo, Dhok Nur and Pindora. The Land Acquisition Collector, Rawalpindi, awarded compensation at the rate of Rs. 932 per kanal for land situate in the revenue estate of Rawalpindi, Rs. 1,238‑10‑4 per kanal for land situated in Dhok Tahlian, Rs. 915‑10‑0 per kanal for land situated in Dhok Desraj, Rs. 989‑11‑0 per kanal for the land situated in Dhok Hayat, Rs. 310‑1‑8 per kanal for the land situated in Dhok Hardo, Rs. 110 per kanal for the land situated in Dhok Nur, and Rs. 406‑11‑4 per kanal for the land situated in Pindora. It appears that most of the owners whose land had been compulsorily acquired were dissatisfied with the award of the Collector and put in applications under section 18 of the Land Acquisition Act with a view to having the cases referred to the Court. References were made by the Land Acquisition Collector, and Mr. Jamil Asghar, the then District Judge, Rawalpindi, dealt with some of them because the Provincial Government did not set up a tribunal which, if they had wanted to, they could have done under the provisions of section 66 of the Punjab Town Improvement Act read with section 60 of that Act. The learned District Judge enhanced the award in almost all cases dealt with by him but some of the references were thrown out by him on the ground that they were incompetent.

2. One of the cases dealt with by the learned District Judge on merits related to the acquisition of land measuring about 15 kanals situate in the revenue estate of Rawalpindi which belonged to Lt.‑General Wajid Ali Khan Burki, the present Health Minister in the Central Government. Another of the cases dealt with on merits related to the acquisition of 50 kahals 2 marlas of land, of which 30 kanals 2 marlas was barani or maira and 20 kanals chahi, situated in village Dhok Tahlian which belonged to Raja Muhammad Razzaq Khan. One of the cases which were thrown out by the learned District Judge on the ground that the reference was incompetent related to acquisition of 13 kanals 6 marlas of land in village Dhok Hardo belonging to Allah Dad; one related to acquisition of 3 kanals 7 marlas of land situated in Dhok Dalal‑which is evidently a part of Dhok Hardo ‑belonging to Qazi Khan; one related to acquisition of 10 kanals 3 marlas of land situated in Dhok Hardo belonging to Mst. Zarda Begum; one related to the acquisition of 21 kanals 19 marlas of land belonging to Karam Dad situated in Dhok Dalal, and another related to acquisition of 18 kanals of land belonging to Sultan Muhammad situated in Hardo Dina. The references made to the learned District Judge in the cases of Allah Dad, Qazi Khan, Mst. Zarda Begum, Karam Dad and Sultan Muhammad were dismissed by him on the ground that they were not competent for the reason that the owner had in each case accepted the award of the Collector. The order of the learned District Judge refusing to entertain the references has been questioned by civil revisions, that put in by Allah Dad being Civil Revision No. 56 of 1959 ; that of Qazi Khan being Civil Revision No. 69 of 1959 ; that of Mst. Zarda Begum Civil Revision No. 70 of 1959 ; that of Karam Dad Civil Revision No. 71 of 1959, and that of Sultan Muhammad Civil Revision No. 72 of 1959. The award of the learned District Judge relating to the land of Lt.‑General Wajid Ali Khan Burki which was given by order dated the 17th. of November, 1958, was not questioned by the owner who was awarded Rs. 4,000 per kanal by the District Judge, while the Collector had awarded him Rs. 932 per kanal. The Land Acquisition Collector, Rawalpindi, put in a petition for revision (Civil Revision No. 52 of 1959) with a view to having the amount of compensation awarded by the learned District Judge reduced to the amount .warded by himself. In the case of Raja Muhammad Razzaq Khan, the order of the District Judge dated the 28th of February 1959, whereby he awarded Rs. 3,000 per kanal for 30 kanals 2 marlas of maira land and Rs. 3,750 per kanal for 20 kanals of chahi land, was questioned by Raja Muhammad Razzaq by presenting an appeal (R. F. A. No. 66 of 1959) with a view to having the compensation for 20 kanals of chahi land fixed at three times the amount fixed for barani land. The Land Acquisition Collector also questioned the award of the learned District Judge with regard to the land of Raja Muhammad Razzaq by putting in a revision petition (Civil Revision No. 171 of 1959) with the object of having the amount of compensation awarded by the District Judge reduced to the amount awarded by himself. As some of the questions that require‑ determination in these cases will be common to most of them, all of them will be disposed of by this order.

3. The case of Lt ‑General Wajid Ali Khan Burki came up before me sitting in Single Bench in the form of Civil Revision No. 52 of 1959. It was contended before me by Raja Said Akbar, Advocate, the learned counsel for the General, that an appeal and not a revision lay against the order of the District Judge. By my order dated the 22nd January, 1960, 1 accepted this contention, but exercising powers given to Courts under section 149 of the Code of Civil Procedure to allow the deficiency in court‑fee on any document to be made up, I directed the Land Acquisition Collector, Rawalpindi to make up the deficiency in the court‑fee by the 15th February 1960, and treated the Civil Revision put in by the Land Acquisition Collector against Lt.‑General Wajid Ali Khan Burki as an appeal. That case is now Regular First Appeal No. 24 of 1960.

4. Though no order was passed with regard to the Civil Revision Petition No. 171 of 1959, that is the petition put in by the Land‑ Acquisition Collector against the award of the learned District Judge in the case of Raja Muhammad Razzaq, the learned Advocate‑General put in court‑fee on the civil revision petition as if it were a regular first appeal. This additional court‑fee was put in on the 15th of February 1960, on which date the deficiency in the court‑fee in the case of Lt.‑General Wajid Ali Khan Burki was made up. The office of this Court was under the impression‑as it would appear was the Advocate‑General, West Pakistan‑that my order dated the 22nd of January 1960, in the case of Lt.‑General Wajid Ali Khan Burki was applicable to all cases relating to acquisition of land for the purposes of the satellite town of Rawalpindi which had come to this Court in the form of revisions. This impression was clearly incorrect and when the' learned Advocate‑General was apprised of the fact that my order dated the 22nd of January 1960 in the case of Lt.‑General Wajid Ali Khan Burki applied to that case alone, he put in an application under section 149 of the Code of Civil Procedure praying that the civil revision petition put in by him against Raja Muhammad Razzaq should be treated as regular first appeal and the deficiency in court‑fee, which had already been made up, should be held to have been validly made up. In my order dated the 22nd of January 1960, in Civil Revision No. 52 of 1959, I had considered the question of the making up of the deficiency in court‑fee and as considerations that arise in the case of Raja Muhammad Razzaq are in no respect different from those that arose in the case of Lt.‑General Wajid Ali Khan Burki, the application under section 149 of the Code of Civil Procedure was granted and Civil Revision No. 171 of 1959, put in by the Land Acquisition Collector, Rawalpindi, against Raja Muhammad Razzaq was treated by the Court as Regular First Appeal No. 26 of 1960, which it had been marked as by the office of this Court without an order of the Court granting the petition for revision the status of an appeal.

5. The questions that arise in the five revision petitions which are directed against the orders of the learned District Judge to the effect that the reference made by the Collector were not competent, may first be dealt with, and for that purpose it is necessary to have a clear picture of the relevant law in force at the material time. The main statute which applied to compulsory acquisition of property is the Land Acquisition Act, 1894. In 1922, however, an Act called the Punjab Town Improvement Act was passed by the then Legislative Council of the Punjab, and having received the assent of the Governor of the Punjab on the 26th of September 1922, and that of the Governor General of British India on the 29th of October, 1922, was placed on the statute book as Punjab Act IV of 1922. The Punjab Town Improvement Act (IV of 1922), brought about some amendments in the provisions of the Land Acquisition Act, 1894, which were to be applicable if the property compulsorily acquired was required for the improvement trusts which could be set up under the Punjab Town Improvement Act, 1922. These amendments will be considered at their proper places as questions covered by them arise. An amendment in the Punjab Town Improvement Act 1922, which is germane to the present cases, was contained in the Punjab Act 11 of 1953 which inserted subsection (3) in section 66 of the Punjab Town Improvement Act (IV of 1922). After the amendment brought about by the Punjab Act II of 1953, section 66 of the Punjab Improvement Act, 1922, read as follows :‑

"66. (1) Whenever a Municipal Committee or other local authority acquires land for the purposes of‑,

(i) laying out new public streets in any locality whether previously built upon or not ; or

(ii) constructing new buildings and laying out of compounds attached thereto, abutting on such new public streets in any locality, whether previously built upon or not ; or

(iii) reclaiming unhealthy or insanitary localities‑

(a) the modifications of the Land Acquisition Act contained in the Schedule of this Act shall, so far as they are applicable, apply to every such acquisition ;

(b) the Provincial Government may constitute a tribunal in accordance with section 60 and the provisions of sections 57 to 66 and of section 73 so far as they relate to the tribunal, shall thereupon apply to such acquisition.

(2) If the Provincial Government does not constitute a tribunal in accordance with clause (b) of subsection (1), all references to the tribunal in the Schedule shall be construed as referring to the Court.

(3) Whenever the Provincial Government acquires land for the purposes of the setting up of a satellite town, whether within or beyond the local limits of a Municipal Committee, or other local authority or Trust, or for any other purpose which in the opinion of the Provincial Government is connected with the setting up of the satellite town concerned, the provisions of subsections (1) and (2) shall, as far as possible, apply to such acquisition.

(Explanation).‑For the purposes of this subsection a satellite town' means new town to be set up in the vicinity of one already existing and includes such town the construction of which has been undertaken by a Co‑operative House Building Society registered under the Punjab Co‑operative Societies Act, 1912."

The Provincial Government, as already mentioned, did not set, up a Tribunal and, therefore, the jurisdiction to hear a reference made under section 18 of the Land Acquisition Act read with the provisions of the Punjab Town Improvement Act, 1922, could be exercised by the Court which could have exercised that jurisdiction if the case had fallen under the Land Acquisition Act, 1894, alone, and did not attract the Punjab Town Improvement Act (IV of 1922) as amended by Punjab Act II of 1953.

6. The first question that arises in this connection is whether a petition for revision lies to the High Court against the order of the District Judge in a case falling under the Punjab Town Improvement Act. Sub clause (b) of sub section (1) of section 66 of the Punjab Town Improvement Act makes it clear that if a tribunal is set up, sections 57 to 66 and section 73 of that Act were to become applicable, and according to clause (d) of section 59 of the Punjab Town Improvement Act, the award of a tribunal was to be final. It is hardly open to question, therefore, that if the order were that of a tribunal, it would be immune from scrutiny by this Court either by an appeal or by a petition for revision, but I am clear in my mind that this result does not follow if the case is, heard by the District Judge sitting alone which will happen if the Provincial Government does not constitute a Tribunal and leaves the matter to be dealt with by the District Judge sitting alone. Under the provisions of the Land Acquisition Act, reference by the Collector under section 18 of that Act is to be made to the Court. The expression "Court" has been defined in clause (d) of section 3 of the Land Acquisition Act, 1894, as follows :‑

"The expression Court' means a principal Civil Court of original jurisdiction, unless the Provincial Government has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the Court under this Act."

This definition makes it clear that the case will be dealt with by a judicial officer. According to the definition given in clause (15) of section 3 of the General Clauses Act (X of 1897), the expression "District Judge" is defined as the Judge of a principal Civil Court of original jurisdiction, but shall not be deemed to include the High Court in the exercise of its ordinary or extraordinary original jurisdiction. When a reference under section 18 of the Land Acquisition Act, 1894, is made with regard to acquisition of property under the provisions of the Punjab Town Improvement Act, 1922, and it is disposed of by the Court an appeal against the award lies to the High Court by virtue of section 54 of the Land Acquisition Act. Section 3 of the Code of Civil Procedure (V of 1908), makes it clear that for the purposes of that Code, the District Judge is subordinate to the High Court and every Civil Court of a grade inferior to that of the District Judge arid every Court of Small Causes is subordinate to the High Court and the District Judge. Now section 115 of the Code of Civil Procedure is to the effect that the High Court can call for the record of any case which has beer decided by any Court subordinate to the High Court and in which no appeal lies thereto, and can in specified circumstances exercise powers of revision. It follows, therefore, that an order of the District Judge under the Land Acquisition Act, 1894, is open to revision by the High Court under the provisions of section 115 of the Code of Civil Procedure if the conditions mentioned in that section are satisfied, because the District Judge in such cases does not act as persona designata but as the District Court. As the orders under consideration were passed by the District Judge, it is not necessary to consider whether or not a revision petition could be entertained by the High Court if the person appointed as the Court under the provisions of the Land Acquisition Act, 1894, were a judicial officer other than the District Judge, for example if he happened to be a Judge of the High Court. The view I have taken with regard to the order of the District Judge under the Land Acquisi tion Act, 1894, being open to revision by the High Court receives support from the decision by a Division Bench of the Lahore High Court in Mian Abdul Aziz v. The Punjab Province (I L R (1943) XXIV Lah. 677). That was a case under the Electricity Act, but that fact does not alter the position with regard to the point under consideration. I hold that the power to revise an order passed by a District, Judge dealing with a case under the Land Acquisition Act, 1894, read with the Punjab Town Improvement Act, 1922, exists in this Court.

7. The question to consider now is whether or not the present revision petitions have any substance. Sahibzada Nasir Ali, Advocate, who appeared for the petitioners in all the five revision petitions, urged that in coming to the conclusion that the references made to him were incompetent, the learned. District Judge had exercised a jurisdiction not vested in him by law. The argument was that once the Collector has made a reference under section 18 of the Land Acquisition Act, 1894, all that the Court has to do is to see whether or not the objections with regard to the matters mentioned in the reference were justified and the Court has no jurisdiction to determine whether or not the reference had been made within the four corners of the law. To support his contention, the learned counsel relied on the following decisions :‑

(i) Sri Venkateswaraswami Varu Bezwada v. Sub‑Collector, Bezwada A I R 1942 Mad. 327.

(ii) Pramatha Nath Mullick Bahadur v. Secretary of State AIR 1930 PC 64.

(iii) Abu Bakar v. Peary Mohan Mukerjee I L R 34 Cal. 451, and

(iv) British India Steam Navigation Co. v. Secretary of State I L R 38 Cal. 230.

No doubt some remarks made in some of these decisions were to the effect that the jurisdiction of the Court is limited to the decision of the questions referred to it under section 18 of the Land Acquisition Act, but a careful study would show that they do not lay down that if a reference has been made by the Collector under section 18 of the Land Acquisition Act, the Court cannot go into the question whether or not the reference was competent. The argument of the learned counsel for the petitioners would mean that even if the Collector has made a reference on an application presented beyond the period of limitation prescribed by section 18 of the Land Acquisition Act, 1894, the Court has no jurisdiction to throw the reference out on the ground that it was made after the period prescribed by law for putting in such application had expired. In my view such a contention cannot be accepted. I am clear in my mind that if the Court comes to the conclusion that the reference made by the Collector cannot be deemed to be a reference under section 18 of the Land Acquisition Act, 1894, for example if it is made without an application though the law says that a reference can be made only if an application in that behalf is made to the Collector, the Court can throw it out on the short ground that it is incompetent. Sahibzada Nasir Ali, Advocate, cited S. Attar Singh R. S. Sardar Hira Singh v. Secretary of State (A I R 1940 Pesh. 35) to show that the Court cannot go into the question whether the application for reference was made to the Collector in time but with all respect, this view is untenable. My view receives considerable support from the following decisions:‑--

(1) Anant Ram v. Secretary of State A I R 1937 Cal. 680.

(2) Mahadev Krishna Parker v. Mumlitdar of Alibag A I R 1944 Bom. 200.

The fact that the Collector has made a reference purporting to act under section 18 of the Land Acquisition Act, 1894, does not preclude the Court from determining the question whether or not the reference conforms to that provision of law. If this were not the law, the Collector would have to be held to have been given unlimited powers to make a reference to the Court in spite of the fact that the law in very clear terms limits those powers. It is true that under the provisions of that Act the Court will get jurisdiction to look into the matter only if a reference is made under section 18 of the Land Acquisition Act but from that it cannot be inferred that if the matter has come to the Court on a reference under section 18 the Court is bereft of its ordinary power to determine that the proceedings it is called upon to take can be taken by it. If the Legislature had intended that once a reference has been made, the Court has to concern itself only with the questions referred to it, one would have expected that the Legislature would not have laid the conditions which must exist before a reference can be made by the Collector, but one finds that in section 18 of the Land Acquisition Act, 1894, the Legislature has mentioned the conditions on the existence of which a reference can be made by the Collector. I would, therefore, hold that the learned District Judge was competent to decide whether or not the reference made by the Collector was in accordance with law, and it was open to him to find that it was not so, and reject it, or to proceed with the hearing after holding that it was properly made.

8. I pass on to the consideration of the question whether or not the clients of Sahibzada Nasir Ali, Advocate, i.e., the persons the references in whose cases were thrown out by the learned District Judge on the ground that they were incompetent, are entitled to the grant of any relief by this Court. Because, as held by me, the learned District Judge had the jurisdiction to deter mine whether or not the references were competent, his orders on the point cannot be set aside by this Court under section 115 of the Code of Civil Procedure unless it were established that he had acted illegally or with material irregularity in the exercise of his jurisdiction, and I would, therefore, address myself to the question whether any such ground existed. The material facts are these. It appears that the clients of Sahibzada Nasir Ali Khan were informed of the award and on receiving the intimation took from the Collector, on the 15th of June 1957, the amount which had been fixed as compensation for their lands which had been acquir ed compulsorily. The next day, however, they put in a joint application before the Collector requesting that a reference under section 18 of the Land Acquisition Act be made to the Court, because the compensation awarded to them was too low and they had accepted it under protest. It was on this application, the court‑fee stamp affixed on which bears the same date on which the money awarded was taken from the Collector, that the refer ences were made to the learned District Magistrate. Now, sub section (1) of section 18 of the Land Acquisition Act which is the provision of law relevant for the purposes of these cases, reads as follows:‑--

"Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested."

The learned District Judge has held that the references were incom petent because the persons who had made applications for making them had accepted the award of the Collector and had, therefore, divested themselves of the right to apply to the Collector to make references to Court with regard to their property. The only circumstance on which this finding is based is that all the five clients of Sahibzada Nasir Ali, Advocate, had taken from the Collector the money which had been fixed by that officer as com pensation for the pieces of land belonging to each of them which had been compulsorily acquired for the purposes of the Rawalpindi Satellite Town. Section 31 of the Land Acquisition Act, 1894, is to the effect that only an owner of land compulsorily acquired who has not accepted the compensation awarded by the Collector or has accepted it under protest can apply to the Collector for the making of a reference. Whether or not the money was accepted under protest is a question of fact and I would not have differed from the finding of the learned District Judge had it not been for the fact that he overlooked pieces of relevant evidence which support the evidence of the petitioners that they had accept ed the money, awarded by the Collector, under protest. One of these circumstances is that the application making this assertion was presented to the Officer to whom the protest is said to have been made. Another of these circumstances is that the Collector made the references to the Court which it is highly unlikely he would have done if he had been of the opinion that the assertion in the application that the money was accepted under protest was baseless. Yet another circumstance which had been completely overlooked by the learned District Judge is that no evidence was led on behalf of the Government to controvert the depositions of the petitioners that they had accepted the money under protest. If a Court which has jurisdiction to decide a question of fact does not consider a relevant piece of evidence, it acts in the exercise of its jurisdiction illegally and with material irregularity and the provisions of section 1 15 of the Code of Civil Procedure apply to the order passed by it. I would, therefore, hold that the order of the learned District Judge that the references in the cases of the clients of Sahibzada Nasir Ali were wrongly made cannot be sustained. Civil Revisions Nos. 56, 69, 70, 71 and 72 of 1959 are accepted and the cases are sent back to the District Judge, Rawalpindi, for disposal on merits. It is further directed that the petitioner will in each of these cases get costs from the respondent.

9. The three appeals, namely, that filed against Lt.‑General Wajid Ali Khan Burki. (R. F. A. 24 of 1960) and the two appeals relating to the land of Raja Muhammad Razzaq, i.e., one instituted by him) R. F. A. 66 of 1959) and the other instituted by the Land Acquisition Collector, Rawalpindi, (R. F. A. No. 26 of 1960) may now be taken up. The main question that arises in these three appeals is whether the compensation awarded by the Collector is correct. In this connection one has to bear in mind the provisions of the law applicable. If the case were under the Land Acquisi tion Act, 1894, pure and simple, i.e., if the acquisition did not attract the provisions of the Punjab Town Improvement Act, 1922, the case would be governed by section 23 of the Land Acquisition Act, 1894. The cases under consideration, however, fall under the Punjab Town Improvement Act (IV of 1922) as is made clear by subsection (3) of section 66 of the Punjab Town Improvement Act which has been reproduced in paragraph 5 of this judgment. Section 59, clause (b) of the Punjab Town Improvement Act enjoins that for the purposes of acquisition falling under that Act the Land Acquisition Act, 1894, is to be subject to certain modi fications. These modifications are mentioned in the Schedule to the Punjab Town Improvement Act, 1922. Paragraph 10 of the Schedule modified section 23 of the Land Acquisition Act, 1894, and on the date of the notification with regard to the Satellite Town, Rawal pindi, under section 4 of that Act, section 23 as applicable to the compulsory acquisition in question read as follows:‑--

(1) In determining the amount of compensation to be award ed for land acquired under this Act, the Court shall take into consideration‑

first, the market‑value of the land at the date of the publication of the notification under section 4, subsection (1) ;

secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof ;

thirdly, the damage (if any) sustained by the person interest ed, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land ;

fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking posses sion of the land, by reason of the acquisition injuriously affect ing his other property, movable or immovable, in any other manner, or his earnings;

fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change ; and

sixthly, the damage (if any) bona fide resulting from diminu tion of the profits of the land between the time of the publi cation of the declaration under section 6 and the time of the Collector's taking possession of the land.

(2) In addition to the market‑value of the land as above pro vided, the Court shall in every case award a sum of fifteen per centum on such market‑value, in consideration of the compul sory nature of the acquisition:

Provided that this subsection shall not apply to any land acquired under the Punjab Town Improvement Act, 1922.

(3) For the purposes of clause first of subsection (1) of this section‑

(a) the market‑value of the land shall be the market‑value according to these use to which the land was put at the date with reference to which the market‑value is to be determined under that clause ;

(b) if it be shown that before such date, the owner of the land had in good faith taken active steps and incurred expen diture to secure a more profitable use of the same, further compensation based on his actual loss may be paid to him ;

(c) * * * * * * * *

(d) * * * * * * * *

(e) if the market‑value is specially high in consequence of the land being put to a use which is unlawful or contrary to public policy, that use shall be disregarded, and the market value shall be deemed to be the market‑value of the land if put to ordinary use ; and

(f) when the owner of the land or building has after the passing of the Punjab Town Improvement Act, 1922, and within two years preceding the date with reference to which the. market‑value is to be determined, made a return under any enactment in force of the rent of the land or building the rent 4 the land or building shall not in any case be deemed to be greater than the rent shown in the latest return so made, save as the Court may otherwise direct, and the market‑value may be determined on the basis of such rent:

Provided that where any addition to, or improvement of the land or building has been made after the date of such latest return and previous to the date with reference to which the market‑value is to be determined the Court may take into consideration any increase in the letting‑value of the land due to such addition or improvement."

(The proviso to subsection (2) and the whole of subsection (3) were to be applicable to compulsory acquisitions covered by the Punjab Town Improvement Act, 1922.)

10. It will be noticed that when the case falls under the Land Acquisition Act, 1894, pure and simple, or under that Act as modified by the Punjab Town Improvement Act, 1922, as amended by Punjab Act It of 1953, the main question to determine in con nection with the compensation payable is the market‑value of the land at the relevant time. Neither section 23 of the Land Acqui sition Act, 1894, nor that section as modified by the Punjab Town Improvement Act, 1922, lays down what method should be adopted for arriving at the market‑value of the property compulsorily acquired and it need hardly be said that the evidence produced in Court to prove the market‑value must conform to the standard laid down. by the Evidence Act. Section 3 of the Evidence Act, says that a fact is said to be proved when after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. When a. reference under section 18 of the Land Acquisition Act comes to Court and the owner claims more com pensation than that allowed by the Collector he has to establish I that the award given by the Collector does not fix the market‑value correctly. The best method of fixing the market‑value is to I find what a willing purchaser would pay a willing seller. Instances of sale of lands in the vicinity are a good guide for arriving at the market‑value of the land which has been compulsorily acquired, but before the prices mentioned as having been fixed for sales of land in the vicinity are accepted as a helpful piece of evidence, it should be established not only that the sales took place near about the time at which the land was acquired but also that the sales related to property so very much similar to the property that has been acquired as to make it almost certain that the price paid for the property cited as an instance would have been paid for the property which has been compulsorily acquired if a willing purchaser were buying it from a willing seller. When, however, instances of sales of similar land are not available and the land itself is under cultivation, or that in its neighbourhood is, 20 times the annual net profits of the land is taken as a safe guide and this method cannot be said to be unreliable.

11. In the case of Lt.‑General Wajid Ali Khan Burki, the Collector had, by his award dated the 6th of April 1957, fixed the market price of the land at Rs. 932 per kanal. He arrived at this figure on the basis of average price of the sales that had taken place in the revenue estate of Rawalpindi. This method of consi dering all the sales in the revenue estate is generally adopted by Land Acquisition Collectors for arriving at the market‑value of the land which is acquired, but to my mind it is not a satis factory method, because a revenue estate must be comprised of a big area and until and unless it is proved that the land sold was extremely similar to the land compulsorily acquired the price fixed for the land sold cannot be a safe guide. Before the learned District Judge the General produced a patwari who produced some mutations which evidenced sales of pieces of land in the vicinity near about the time of the compulsory acquisition. The learned District Judge accepted the prices mentioned in the mutations as correct and fixed the market‑value of the land compulsorily acquired from the General as Rs. 4,000 per kanal. It is extremely common that persons buying property have a higher price men tioned in the document evidencing the sale in order to discourage the pre‑emptors and it is clear that suspicion that a higher price has been mentioned in the relevant document should at once arise if one finds that the price has suddenly shot up. Another thing that cannot be lost sight of is that as soon as information that Government is about to acquire land in a locality for a purpose which will enhance the value of the land in that vicinity reaches the owners of property in that locality, prices go up. All these things have to be kept in view before coming to the conclusion what the market‑value of the piece of land compulsorily acquired at the relevant time was, but as in his order dated the 27th of November 1958, the learned District Judge accepted the prices mentioned in the mutations as correct he overlooked some impor tant matters which should have been kept in view.

12. In the case of the land of Lt.‑General Wajid Ali Khan Burki, one has, however, a valuable piece of evidence to go by namely the sale in his favour which took place on the 26th of June 1949. The General appeared as a witness in the Court of the learned District Judge and deposed that he had paid Rs. 21,500 for his land which has been compulsorily acquired and I have no hesitation in accepting that statement as correct. It was not the case for the owner that the price charged from him was lower than the market price which could possibly have been the case if the vendor were either a friend or a relative of his, or for some reasons wanted to do him a favour by charging a prices lower than that he could have got from another customer. It follows, there fore, that in June 1949, the market‑value of the land of Lt.‑General Wajid Ali Khan Burki, which was compulsorily acquired, was about Rs. 1,500 per kanal. That being so, the burden was on him to prove to what extent the price had gone up by the time that the notification for the acquisition of his land was issued on the 1st of May 1953. In his petition to the Collector, which was sent to the District Judge as a reference, the General had claimed that his land was worth Rs. 5,000 per kanal on the date of the acquisition and in support of this assertion, produced, as already mentioned, some copies of mutations regarding sales of pieces of land situated in the revenue estate of Rawalpindi. According to mutation No. 6844, which was decided on the 14th of March 1.952, Major Ghulam Husain and Abdul Haq had sold land measuring 2 kanals 4 marlas for Rs. 6,000. The next document is mutation No. 6893, decided on the 19th of July 1952 according to which Mst. Aziza Mahmud bought land measuring 3 kanals 10 marlas for Rs. 10,000. The next document is mutation No. 6980 which was sanctioned on the 20th of August 1952. According to this mutation, 4 kanals of land was sold by Abdul Rahman to Raja Said Akbar for Rs. 8,500. It may be mentioned here that Raja Said Akbar mentioned in this mutation is the gentleman who appeared as the Advocate for the General. The next docu ment is mutation No. 6897 sanctioned on the 23rd of August 1952 according to which land measuring 17 marlas was sold by Khuda Bakhsh and Hayat Bakhsh to Col. Allah Dad Khan for Rs. 6,000. The next mutation 'is No. 6926 sanctioned on the 17th of March 1953 which evidenced the sale of 15 marlas of land for Rs. 7,500 by Khuda Bakhsh to Jamedar Abdul Latif. The last document was a copy of mutation No. 6930 which was sanctioned on the 17th of March 1953, according to which land measuring 18 marlas was sold by Khuda Bakhsh to Mst. Feroza Begum for a sum of Rs. 10,000. It must have been noticed that the areas of the pieces of land in the sales cited as instances were much smaller than the area of the land of Lt.‑General Wajid Ali Khan Burki which was compulsorily acquired. The smallness of the areas shows that these purchases were made for building purposes. Appearing as his own witness Lt.‑General Wajid Ali Khan Burki bad stated that his land was purchased for building purposes and had been prepared for that purpose, and it is hardly open to question that it was so. The prices mentioned in the mutations relied upon would not consequently be entirely worthless as guides. It must, however, be borne in mind that if a small area is sold for building purposes the possibility of a very large part of it being near a road is very much greater than in the case of a large area because quite substantial part will in that case ordinarily be away from the road. It follows, therefore, that even if the prices mentioned in the mutations relied upon be accepted as absolutely correct, they are not a safe guide far arriving at the conclusion that the average prices of one kanal of land in the vicinity of the land compulsorily acquired from Lt.‑General Wajid Ali Khan Burki was Rs. 4.000 at the time of the issue of the notification under section 4 of the Land Acquisition Act, 1894. If the prices mentioned in some of the mutations relied upon as evidence be accepted as correct, it would appear that the value of the land had gone up about eight times. I am not prepared to believe that such collosal increase occurred in the prices of land in that vicinity in the space of four years particularly as it is not shown that any such thing had occurred as would make the price of land in the vicinity shoot up like a rocket. If the sellers and the purchasers had been produced as witnesses and had given evidence which would dispel the suspicion that the prices mentioned in the mutations were inflated, it would have been a different matter, but one finds that no attempt was made to produce any of the purchasers or sellers mentioned in the mutations sought to be used as conclusive evidence of the market‑value of the land in the vicinity of the land compulsorily acquired. I am of the opinion that acting on an unsatisfory and unsafe method the Collector, in his award dated the 6th of April 1957, fixed the compensation lower than it should have been and the learned District Judge, in his order dated the 27th of November 1958, fixed it higher than ho should have.

13. It appears to me, however, that it will not be rash to presume that the price of land did go up between June 1949 when Lt.‑General Wajid Ali Khan Burki bought the land in question, and May 1953 when the notification under section 4 of the Land Acquisition Act, 1894, was issued, and the question for determina tion is by how much it had gone up. This question has to be carefully considered so that neither the owner whose land has been compulsorily acquired nor the party which acquired it should suffer. Raja Said Akbar, Advocate, who appeared for Lt.‑General Wajid Ali Khan Burki, as well as for Raja Muhammad Razzaq, urged that the Court should not be meticulous in the matter of fixing the market‑value in these cases because the Provincial Government was not paying the price from its own resources but by selling the land acquired in plots and the persons to whom the plots were allotted will have to pay something over and above the amount paid by the Government for the compulsory acquisi tion. This argument of the learned counsel merits little notice, because it not having been urged that the acquisition was not allowed by law: the Court is only concerned with the provi sions of law applicable and should not allow its judgment to be affected one way or the other any extraneous considerations. Mr. Jamil Husain Rizvi, the learned Advocate‑General, who appear ed for the Land Acquisition Collector, contended that at the time of the notification under section 4 of the Land Acquisition Act the land of Lt.‑General Wajid Ali Khan Burki was not used for building purposes and, therefore, it should not be treated as if it were land situate in a town and meant for building pur poses. The reliance of the learned Advocate‑General was on clause (a) of 'subsection (3) of section 23 of the Land Acquisition Act, reproduced in paragraph 9, which is to apply if an acquisi tion, like the one under consideration, is under the Punjab Town Improvement Act, 1922. That clause lays down that in determin ing the compensation payable the Court should fix the market- value according to the use to which the land was put at the relevant time. What the clause means is that unless it is established that it is being put to a more lucrative use, the Court will presume that it was being put to a use which was for that kind of land the least lucrative. I will explain my interpretation of this provi sion of law by an illustration. Suppose there are three contiguous plots of land measuring one acre each. One of them is used for agricultural purposes, one is used as a fruit‑growing garden, while the third is not put to any use because the owner intends .to build a house on it. The first of these plots is being used as agricul tural land, the second is used as a garden and the third as a site for building a house. If land situate near a town is not being used for agricultural purposes and is proved to have been bought for the purpose of building thereon, it cannot be treated as agricultural land for the purposes of the compulsory acquisition and has to be treated as a building site, and it is treating the land of Lt.‑General Wajid Ali Khan Burki as a building site that the Collector fixed the amount of compensation payable to him. There is no cogent evidence to show the extent of the increase in price of land in the vicinity of Rawalpindi Town, between June 1949 and May 1953 and one has, therefore, to make a rough estimate. If the learned District Judge had included the sale in favour of Lt.‑General Wajid Ali Khan Burki in the sales on the basis of which he arrived at the figure of Rs. 4,000 per kanal as the average price of the land in the vicinity‑which because of the fact that the sale in favour of the General took place within four years of the compulsory acquisition should have been taken into consideration‑the figure arrived at by him would have fallen by about Rs. 1,250 per kanal. Considering the matter from all aspects, I have arrived at the conclusion that the proper compensation payable for the compulsory acquisition of the land of Lt.‑General Wajid Ali Khan Burki was Rs. 2,750 per kanal. I might, however, add that from the fact of my arriving at this figure I am not to be deemed to have accepted as correct, the prices mentioned in the mutation relied upon by the owner and I have made some use of them only because there was no other evidence to go by for the purpose of accurately determining the market price of the land. In view of what I have said above, I would accept Regular First Appeal No. 24 of 1960 to this extent that the amount of compen sation payable to Lt.‑General Wajid Ali Khan Burki the respon dent to the appeal, is fixed at Rs. 2,750 per kanal. In addition the respondent will be entitled to get interest at the rate of 6% per annum on that part of the sum awarded which is in excess of the sum awarded by the Land Acquisition Collector, from the date on which possession of the land was taken by the Provincial Government to the date on which the excess was paid in the Court, but the parties will bear their own costs in both the Courts.

14. I will now take up the case relating to acquisition of the land of Raja Muhammad Razzaq which, as already mentioned, is the subject of two appeals. In his appeal, Raja Muhammad Razzaq prayed that the price of his chahi land should have been fixed at three times the price of his maira or barani land. In his order dated the 6th of April 1957, the Collector fixed the price of the land at about Rs. 1,240 per kanal irrespective of whether it was maira or chahi, but the learned District Judge, by his order dated the 28th of February 1959, held that the market‑value of the maira land of Raja Muhammad Razzaq was a little over Rs. 4,000 per kanal, but because the owner had claimed Rs. 3,000 per kanal for maira land he could be awarded that amount only, and that the market‑value of the chahi land of Raja Muhammad Razzaq was Rs. 3,750 per kanal.

15. Raja Said Akbar Khan, Advocate, who appeared for Raja Muhammad Razzaq, contended that the market‑value of the chahi land should have been fixed at five times that of the maira land because the land revenue fixed for the chahi land was five times that fixed for the maira land, and supported this contention by saying that in another case of compulsory acquisition this method had been acted upon. I am clear in my mind that this is not the proper approach to the question. If it were established that the land revenue was a specified part of the income of the land the contention would have had some weight but as there is nothing to show that the land revenue was fixed in the above‑mentioned K manner the proportion that the land revenue payable for one kind of land has to the land revenue payable for another kind of land cannot be taken to be the correct index of the relative prices o these lands. Raja Said Akbar further contended that even according to the formula acted upon by the learned District Judge himself, he should have fixed the market‑value of the chahi land of Raja Muhammad Razzaq at a little over Rs. 5,000 per kanal. In this connection, the learned counsel pointed out that the learned District Judge had accepted the suggestion made by an official working with the Land Acquisition Collector that, the price of chahi land should be fixed as 25% more than that of maira land and added that though the compensation awarded to Raja Muhammad Razzaq for maira land was Its. 3,000 per kanal, the figure arrived at by the learned District Judge on the basis of the average of sale‑prices in other cases was over Rs. 4,000, and the learned District Judge should have kept in view the average price and not that awarded for the maira land when calculating the market‑value of the chahi land. That the chahi land is superior to maira land is undeniable and I am of the view that the market value of the former should be fixed as 25% more than that of the latter. I would, therefore, proceed to consider what the market value of the maira or chahi land of Raja Muhammad Razzaq was proved to be. If there is cogent proof about the market‑value of even one kind of land, the difficulty is solved, because if the market value of maira land alone is known, the market value of chahi land will be fixed at 5/4th of that and if the market‑value of chahi alone is known, that of the maira land can be arrived at by multiplying that figure by 4/5. Just as in the case of Lt.‑General Wajid Ali Khan Burki, all the material placed before the learned District Judge with a view to having the award of the Land Acquisition Collector held to be on the extremely low side, was copies of some mutations, the only difference being that while in the case of General Burki, the number of mutations was half a dozen, their number in the case of Raja Muhammad Razzaq was one dozen. The reasons I have given in the case of General Burki for not placing implicit reliance on the mutations for arriving at the market‑value of the land in question apply to this case also, and I need not repeat them.

16. But here again there is a reliable piece of evidence with regard to the price paid by a willing purchaser to a willing seller for land .in the vicinity. The reference is to the sale in favour of General Burki on the 26th of June 1949 of a piece of land which is situate at no great distance from that of Raja Muhammad Razzaq and to which a reference has already been made while dealing with the case of the General. In the opinion of the Land Acquisition Collector, the land in Dhok Tahlian was superior to that in Rawalpindi Tehsil, but this remark which takes one revenue estate as one unit and the other as another unit is too vague to be of any assistance, because every piece of land has to be considered from all aspects when it is to be compared to some other piece of land. The area acquired from Raja Muhammad Razzaq was 50 kanals 2 marlas of which 10 kanals 2 marlas was barani land or maira, and 20 kanals was chahi. The evidence on the record shows that the land of Lt.‑General Wajid Ali Khan Burki, though situ ated in the revenue estate of Rawalpindi, the land in which estate would appear on the average to be slightly inferior to the land situated in Dhok Tahlian, was in a better locality. The land of the General abutted on the road between Rawalpindi and Murree while the land of Raja Muhammad Razzaq does not enjoy that facility. It is true that the land of Raja Muhammad Razzaq is near a road and in fact it would appear that there is a junction of three roads near the land of Raja Muhammad Razzaq but those roads are not as important as the Rawalpindi‑Murree Road was even at the time when the notification under section 4 of the Land Acquisition Act was issued with regard to compulsory acquisition of land for the Satellite Town Rawalpindi. Moreover, it is clear that the part of the land of Raja Muhammad Razzaq abutting on the road is not as large as in the case of the land of Lt.‑General Wajid Ali Khan Burki. In addition, there is the fact that at the relevant time the land of Raja Muhammad Razzaq was admittedly used for agriculture, while that of General Burki was used as a building site. The fact, however, that the land of Raja Muhammad Razzaq was used for agricultural purposes at the time of the notification under section 4 of the Land Acquisition Act will not very adversely affect the market value of that land in comparison with the land of General because the land of Raja Muhammad Razzaq being near the town will be a valuable piece of agricultural land especially because people had started building houses in that vicinity. Taking everything into consideration, I have arrived at the conclusion that the proper compensation for the land of Raja Muhammad Razzaq is Rs. 2,1,00 per kanal for barani or maira land and Rs. 2,500 per kanal for the chahi land. I would, therefore, dismiss the appeal of Raja Muhammad Razzaq (R. F. A. No. 66 of 1959) with costs, but would accept the appeal of the Land Acquisition Collector, Rawal pindi (R. F. A. 26 of 1960) to this extent that the compensation payable to Raja Muhammad Razzaq is fixed at Rs. 2,000 per kanal for barani or maira land and Rs. 2,500 per kanal for chahi land. In addition, Raja Muhammad Razzaq would be entitled to get interest at the rate of 6% per annum on that part of the sum awarded which is in excess of the sum awarded by the Land Acqui sition Collector, from the date on which possession of the land was taken by the Government to the date on which the excess was paid in Court, but would leave the parties to bear their own costs of both the Courts in Regular First Appeal No. 26 of 1960.

17. The result, therefore, is that while Civil Revision Nos. 56, 69, 70, 71 and 72 of 1959 are accepted in their entirety, R. F. A. No. 24 of 1960 and R. F. A. No. 26 of 1960 are partly accepted to the extent indicated above, and R. F. A. No. 66 of 1959 is dismissed in its entirety.

I am in respectful agreement with the findings of my learned brother and have nothing to add to the very exhaustive judgment which he has recorded, covering all the points arising in these cases, except to say that an ascertainment of the market‑value of a piece of land acquired under the Acquisitions laws is at best an effort at "approximation" without any formula to attain mathematical precesion. It is the same where the acqui sitions take place for purposes of the Town Improvement Act1 and where market‑value is to be fixed according to the use to which the land was put at the relevant date.

2. The standardised factors commonly applied in this behalf like the five years average of the sale price of lands of the same or similar quality sold in the same or adjoining areas, the twenty years net profits or twenty times the land revenue of the land, the prices fetched by contemporaneous sales of the land in the same area or the neighbouring areas are themselves useful guides, but none of them is an infallible test to produce results wholly

3. The best method to work out the market‑value is the practical method of the prudent man of section 3 of the Evidence Act to examine and analyse all the material and evidence available on the point and to determine; as my learned brother has very neatly put "the price which a willing purchaser would pay to a willing seller for purchase of the acquired land" in the prevailing normal circumstances, without the bargain being influenced by any extraneous consideration.

4. This practical test would rule out of consideration any fancy prices which some customers may pay for necessity or fanci fully to unwilling sellers, or the bottom prices which greedy buyers sometimes pay to the sellers in need. This test would also rule out inflationary prices which are very commonly entered in the formally executed documents for ulterior motives, but which are neither fixed in good faith nor actually paid.

5. The "willing bargain price", if I may so call it, as the nearest approximation to the market‑value must take into account all the material circumstances and in the cases in hand an effort has been made to do this with results, which I venture to think, are fair and equitable to the parties concerned on standards of all fair computation.

A.H. Order accordingly

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