2016 PLP 216 (CLC)

ABDUL LATIF KHAN J:- This appeal has been preferred against the judgment and decree dated 29.2.2012 of the Additional District Judge-VII/Referee Judge, Peshawar whereby the Objection Petition filed by the appellants was partially accepted. Arguments heard record perused.

2. A perusal of record reveals that the land under Reference was acquired for construction of Islamabad and Peshawar Motorway (End Point Interchange) at Peshawar vide Award No.169 dated 15.7.2010. The owners/objectors made a reference under section 18 of the Land Acquisition Act, 1894 wherein enhancement of compensation of land measuring 15 Kanals, 9 Marlas in village Kamboh was sought which was partially allowed by learned Referee Judge vide judgment dated 29.2.2012. The parties filed separate appeals before this Court which were dismissed by way of common judgment announced on 9.5.2013. Civil Appeals Nos.114-P/13 and 150-P/13 filed by the parties separately which were heard on 17.6.2014 and remanded to this Court with the following observations:- "Heard. We find that the learned High Court has misread the record and the view set out that the appellants themselves asked for Rs.3,00,000/- per marla as the compensation is not supported by any document/admission on their part; besides no evidence led by the appellants has been considered. Resultantly such judgment cannot sustain which is hereby set aside and the matter is remanded to the learned High Court to decide the appeals of the appellants afresh deeming those pending before it on the basis of the material evidence on the record. In light of the above, these appeals are disposed of accordingly."

3. It is pertinent to mention that notification under section 4 Ex.OW4/1 was issued on 24.5.2008 whereas Award No.169 was passed on 15.7.2010, wherein compensation amount was fixed as Rs.1,15,170.77. The objectors have claimed the market value at the rate of Rs.10,00,000/- (Ten lac) per marla on the ground that the nature of property is commercial one and is situated on the bank of the road having future potentiality and keeping in view this status, the market value assessed in the award was too meager. The trial Court/Referee Judge assessed the market value at the rate of Rs.3,00,000/- per marla however it is not clear that how the amount has been determined. Averages available on file have not been taken into consideration nor statements of the Property dealers and elders brought on file through OW.4, Girdawar NHA/respondent have been taken into consideration.

4. Above all, the parties have never taken pain to request the Referee Judge for appointment of Local Commissioner to ascertain the status of the property, location and future potentiality in order to reach at a correct conclusion in determination of compensation to be awarded to the Objectors/owners. It was the bounden duty of the Court too, to appoint Local Commissioner for the purpose of determination of market value/compensation of the land under reference. The Land Acquisition Collector has also referred to acquisition in the same vicinity taken place in the year 2006 at the rate of Rs.3,00,000/- and Rs.4,00,000/- per marla which too have lost the sight of the Court and has not considered the same for the purpose of evaluating the correct value of the land. The impugned judgment is silent about the compensation fixed by it at a rate of Rs.3.00,000/- as no cogent evidence has been discussed in this regard. Similarly the claim of objectors to the tune of Rs.10,00,000/- specifically agitated has not been properly addressed which warrants re-appraisal in the light of evidence available on record and further evidence if needed to be recorded as the Referee Court deems fit.

5. It is pertinent to mention that for determination of compensation under section 23 of the Land Acquisition Act, 1894, the Court has to consider the evidence brought on record by the parties and in addition to one year average has also to consider potentiality in further prospective of the land. Various facts including location of acquired land, sale price of adjoining land, its potentiality and likelihood of development and improvement, report of Local Commissioner are to be taken into consideration. The appointment of Local Commissioner in like cases are necessary as merely averages cannot be safely relied upon for the simple reason that general tendency of the vendees to show smaller amount as price of the land purchased by them in order to avoid imposition of heavy gain tax and stamp duty etc.

6. It is by now established that the appointment of Local Commissioner has become inevitable in cases of enhancement of compensation and Courts are required to consider the case for the purpose at the proper stage in order to avoid remand and to prolong litigation for considerably long time.

7. Without touching the merits of the case lest it prejudice the case of either party, we deem it appropriate to send the case back to the learned Referee Judge with the direction to consider and evaluate the available evidence in the light of documents and statements of the disinterested persons qua the recommendations of District Acquisition Collector, NHA and also record fresh evidence if needed and to appoint the Local Commission to determine the status of the property, location and future potentiality within shortest possible time but not later than three months positively strictly in accordance with law. The learned Referee Judge is further directed to treat the matter on day to day basis. Order accordingly. The impugned judgment and decree of trial Court is set aside and the instant appeal is allowed in the above terms. ZC/98/P Case remanded.