Documents exibit under statement of council are inadmissible in eyes of law.
Stereo. H C J D A-38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
RFA No.20881 of 2023
National Highway Authority, Islamabad through its
Project Director Zafar Mehmood
Versus
Muhammad Afzal Bhatti & another
J U D G M E N T
Date of hearing: 03.06.2024.
Appellant by:
M/s Muhammad Saim Chaudhary, Dewan
Zakir Hussain
and
Saima Safdar
Chaudhry, Advocates.
Mr. Muhammad Zain Qazi, Assistant
Attorney General on Court’s call.
Respondents
Mr. Najaf Muzammal Khan, Advocate.
Mr. Muhammad Saad Bin Ghazi, Assistant
Advocate General on Court’s call.
MUHAMMAD SAJID MEHMOOD SETHI, J.-
Through instant appeal, appellant has challenged judgment
dated 07.01.2023, passed by learned Senior Civil Judge (Civil
Division), Gujranwala, whereby Reference Application under
Section 18 of the Land Acquisition Act, 1894 (“the Act of
1894”), filed by respondent No.1, was accepted and he was
held entitled to get compensation of acquired land @
Rs.20,00,000/- per Acre along with 15% compulsory
acquisition charges, compound interest @ 8% from the date of
possession i.e. date of issuance of Notification u/s 4 of the Act
of 1894 till payment of compensation with interest and costs of
the suit.
2.
Brief facts of the case are that land of respondent No.1
measuring 22 Kanal & 7 Marla situated in village Hayati Tehsil
Kamoki District Gujranwala was acquired for construction of
Lahore-Sialkot Motorway and compensation was granted @
Rs.1,43,750/- per Kanal or Rs.11,50,000/- per Acre through
Award dated 16.06.2017. Respondent No.1 filed Reference
Application for enhancement of compensation of the acquired
RFA No.20881 of 2023
land, which was contested by the Land Acquisition Collector
and appellant / National Highway Authority by filing written
replies. Out of divergent pleadings of the parties, the Referee
Court framed following issues: -
ISSUES:
1.
Whether petitioner’s property was not evaluated and
assessed by respondents according to market value and
petitioner is being compensated for lesser amount and is
entitled to enhanced compensation? OPA
2.
Whether petitioner is entitled to receive compensation of his
acquired land and damages he sustained @ Rs.20,00,000/-
/25,00,000/- per Acre along with interest instead of
Rs.11,50,000/- per Acre? OPA
3.
Whether possession of petitioner’s property was taken
immediately after issuance of Notification u/s 4 whereas
Award was announced on 16.06.2017? OPA
4.
Whether petitioner has not come to Court with clean hands?
OPR
5.
Whether petitioner has no cause of action and locus standi
to file this Reference? OPR
6.
Whether Reference of petitioner is not proceedable in its
present form due to mis-joinder and non-joinder of
necessary parties and same is liable to be dismissed? OPR
7.
Relief.
After recording evidence and hearing arguments from all
sides, the Referee Court, vide judgment dated 07.01.2023,
accepted the Reference Application in above terms. Hence, this
appeal.
3.
Learned counsel for appellant submits that all the
documentary evidence, adduced by respondent No.1, was
exhibited in the statement of learned counsel, therefore, the
same has no evidentiary value in view of dictum laid down by
the superior Court. He adds that even all these documents were
executed after issuance of Notification u/s 4 of the Act of 1894,
thus, the same are irrelevant as per Rule 10(1)(iii)(C) of the
Punjab Land Acquisition Rules, 1983. He argues that certain
documents were produced and only ‘marked’, therefore, such
documents had no legal value and sanctity in the eye of law.
He further submits that respondent No.1 failed to prove exact
price of the acquired land through tangible evidence and
RFA No.20881 of 2023
received the award amount without any objection, hence the
Referee Court was not justified to amplify the compensation to
such a huge magnitude. He contends that the reference
application remained pending for five years for no fault on the
part of acquiring agency, hence, there was no lawful
justification to award the compound interest, which even
otherwise is not mandatory rather is discretionary as per section
28 of the Act of 1894. In support of his contentions, he has
relied upon Government of N.-W.F.P. and others v. Akbar Shah
and others (2010 SCMR 1408), Manzoor Hussain (deceased)
through L.Rs. v. Misri Khan (PLD 2020 Supreme Court 749),
Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik
through his legal heirs and others (PLD 2021 Supreme Court
715), Mst. Fatima and 2 others v. Najeeb Ullah and another
(2020 CLC 780), Lahore Ring Road Authority and others v.
Mian Mumtaz Ahmad and others (2021 CLC 178) and
Muhammad Hussain and another v. Province of Punjab
through District Officer Revenue, Multan and others (2021
YLR 2310).
4.
Conversely, learned counsel for respondent No.1 submits
that the acquired land was of prime quality for cultivation of
vegetables / farming and being near to village abadi was
suitable for residential purpose as well, therefore, the value /
price of compensation should have been assessed at
Rs.25,00,000/- per Acre. He adds that appellant has evasively
denied the stance of respondent No.1 instead of rebutting the
same through any direct evidence, which amounts to admission
on the part of appellant. He adds that the price assessed by the
Land Acquisition Collector was neither proper nor adequate as
relevant factors, inter-alia, market value at the relevant time
coupled with its potential value, time consumed in finalization
of acquisition proceedings / payment of compensation and trend
of increasing prices of lands located adjacent to the lands of
RFA No.20881 of 2023
respondent No.1 have not been taken into consideration at the
time of announcement of award. In the end, he prays that
compensation fixed by the Referee Court be maintained. He has
placed reliance on Wasab Khan and another v. Mst. Bagh Bhari
and 5 others (2017 MLD 1552), Muhammad Munawar v.
Abdul Razaq and 6 others (2018 CLC 1227), Usman Khan v.
Mst. Shehla Gul and 2 others (2020 CLC 910), Muhammad
Akhtar v. Mst. Manna and 3 others (2001 SCMR 1700), Malik
Tariq Mahmood and others v. Province of Punjab and others
(2023 SCMR 102), Federal Government of Pakistan through
Ministry of Defence Rawalpindi and others v. Mst. Zakia
Begum and others (PLD 2023 Supreme Court 277), National
Highway Authority v. Rai Ahmad Nawaz Khan and others
(2023 SCMR 700) and Nawabzada Abdul Qadir han and
others v. Land Acquisition Collector Mardan and others (2023
SCMR 950).
5.
Arguments heard. Available record perused.
6.
Undeniably, land of respondent No.1 was acquired and
he was held entitled to get compensation of the same by the
Land Acquisition Collector, therefore, issues No.4, 5, 6 & 7
were rightly decided against appellant. Even, these issues have
not been seriously pressed before this Court.
The major controversy revolves around issues No.1 to 3,
gist whereof is whether value determined by the Referee Court
was accurate or that fixed by the Land Acquisition Collector
was fair and just?
7.
Respondent No.1 himself appeared as AW-1 and
produced Safdar Ali as AW-2. Documentary evidence contains
documents Ex.A-1 to Ex.A-17 and Mark-A to Mark-H.
Whereas, Syed Mohsin Raza Naqvi, Assistant Director Land
appeared in the witness box as RW-1 & Safwan ul Haq,
Tehsildar Kamoke as RW-2 and mutations of Mouza Hayati
RFA No.20881 of 2023
bearing Nos.613, 615, 617 & 618 were tendered as Ex.R-1 to
Ex.R-4, respectively.
8.
Learned counsel for appellant has raised serious
objection qua admissibility of documentary evidence tendered
by respondent No.1, being exhibited in the statement of learned
counsel, however he frankly admitted the genuineness and
veracity of Ex.A-4, which is minutes of meeting of District
Price Assessment Committee (DPAC), held on 03.08.2016.
This document shows that schedule rate of off-road land of
Mouza Hayati was assessed as Rs.10,50,000/- and market value
as Rs.15,00,000/- per Acre, by the Assistant Commissioner
Kamoke, however column average sale price per Acre is blank.
When confronted with the legal position that the
documentary evidence was exhibited in the statement of
counsel and the same has no evidentiary value, learned counsel
for respondent No.1 submits that he would be satisfied if
compensation is fixed as per market value of acquired land
given in Ex.A-4 i.e. Rs.15,00,000/- per Acre.
On being faced with the above, learned counsel for
appellant admits that the aforesaid market value of the acquired
land was fixed by the Assistant Commissioner concerned but
the DPAC reduced it to Rs.10,50,000/- per Acre. He was asked
to show the reasons for reducing the compensation of the
acquired land and further confronted with the facts; that the
AWs claimed market value of the acquired land from
Rs.20,00,000/- to Rs.25,00,000/- per Acre in their depositions
and during cross-examination their stance remained the same;
that the RWs, who are neither members of DPAC nor persons
who assessed the value, could not substantiate that the LAC
fixed the compensation by keeping in view the market value
and potential value of the acquired land; and that the market
value of off-road lands in adjacent villages i.e. Pul Shah Dola (a
nearest village) has been assessed as Rs.17,00,000/- per Acre,
RFA No.20881 of 2023
however the same was not considered while fixing the
compensation of the acquired land. In response, learned counsel
could not advance any satisfactory reply.
10. The Referee Court has taken into consideration the
market value, potentiality and value of the adjacent lands on the
basis of documentary evidence tendered by respondent No.1,
which clearly shows value / price of adjacent lands on higher
side. However, the Apex Court of the country has laid down in
a number of judgments that documentary evidence cannot be
exhibited in the statement of counsel including the cases
reported as Manzoor Hussain (deceased) through L.Rs. v.
Misri Khan (PLD 2020 Supreme Court 749), Mst. Akhtar
Sultana v. Major Retd. Muzaffar Khan Malik through his legal
heirs and others (PLD 2021 Supreme Court 715) and Mst.
Rasoolan Bibi v. Province of Punjab and others (2023 CLC
1171). The verdict given by the Supreme Court is binding on
all Courts of the country within the contemplation of Article
189 of the Constitution of the Islamic Republic of Pakistan,
1973.
11. In this view of the matter, compensation of the acquired
land is being fixed by adopting the market value mentioned in
Ex.A-4, which document although brought on record in the
statement of learned counsel for respondent No.1 but learned
counsel for appellant has admitted it to be correct and has
neither raised serious objection for determination of
compensation in line thereof nor could show that the said
determination was not in conformity with the market price
through any irrefutable documentary proof. In the given
circumstances, this Court finds no exception to it especially
when learned counsel for respondent No.1 has also agreed to it
to end the litigation.
12. Needless to say that the concept that documents cannot
be admitted into evidence solely through the statement of
RFA No.20881 of 2023
counsel during evidence is rooted in the fundamental right to
cross-examination, which is an essential aspect of the
adversarial legal system. The right to cross-examination allows
the opposing party to challenge the veracity, authenticity, and
relevance of the evidence presented, including documents. If
documents were to be admitted solely on the statements of
counsel, it would indeed compromise the right of the other
party to cross-examine, which is not warranted by law.
Therefore, the trial Courts must ensure that all documentary
evidence is subject to the scrutiny of cross-examination to
uphold the principles of fairness and due process. Documents
exhibited solely through the statements of counsel without the
opportunity for cross-examination would not meet the legal
standards for admissibility of evidence. This ensures the
integrity of the judicial process and the rights of the parties
involved. The superior Courts of the country have also enriched
the law through their judgments, setting precedents for the
proper admission of documents and evaluation. The Courts
must ensure so far as it is possible that these legal standards are
met to maintain the integrity of the judicial process and uphold
the rights of the parties involved.
13. Before parting with this judgment, I am constrained to
observe that in this case, respondent No.1 got exhibited as
many as seventeen (17) documents during statement of his
learned counsel, and the Referee Court as well as learned
counsel for the parties in total oblivion of the legal position
developed so far allowed the documents to be exhibited,
however such exercise is not permissible under well-established
principles of law enunciated by the superior Courts in a number
of judgments, some of them have also been cited supra. In this
way, the best evidence being helpful to resolve the controversy
is lost which seriously affects the precious rights of the parties.
Therefore, this Court directs that copy of this judgment be
RFA No.20881 of 2023
circulated to all the Courts in District Judiciary Punjab as well
as Presidents of Bar Associations at Tehsil and District levels
throughout Punjab for strict adherence to ensure substantial
justice and to save the parties from substantial loss.
14. In view of the above, instant appeal is partly allowed in
the manner that compensation of acquired land of respondent
No.1 is hereby fixed as Rs.15,00,000/- per Acre along with
15% compulsory acquisition charges and compound interest @
8% from the date of possession of the acquired land to the date
of payment of enhanced amount of compensation.
(Muhammad Sajid Mehmood Sethi)
Judge
APPROVED FOR REPORTING
Judge
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