2003 PLP 1850 (MLD)

6. It was also argued that the land situated at the back of the acquired property was acquired by the Government at very high rates, but the learned Referee Judge failed to take notice thereof.

7. On the other hand Mr. Fida Gul, Advocate the learned counsel representing the respondents in all the three appeals argued that the award as well as the impugned judgment were based on one year's average prepared by Patwari Halqa and the same was proper, therefore, the impugned judgment/decree needs no interference.

8. It was also argued that the land situated at the back of the acquired land was acquired in year 1978, therefore, the value assessed for the said land cannot be made basis for the land acquired in the year 1976.

9. It was also argued that the acquired land was not situated in the Charasadda Bazar, but was situated away from Bazar, hence had no potential value for commercial purposes.

10. I have heard the learned counsel for the parties and perused the record.

11. Perusal of the record shows that notification under section 4 of the Land Acquisition Act was issued on 5-11-1976. Notification under section 5 was issued on 16-2-1976, notifications under sections 6 and 7 were issued on 30-4-1976, notice under section 9 was issued on 3-5-1976, whereas, the Award No.694 of 1997/MM was issued on 12-11-1976.

12. The appellants/Objectors/landowners in order to substantiate their cases examined Abdul Samad Khan and Jan Akbar Patwari Halqa Mauza Charsadda, who placed on record copies of Fard Jamabandi for the year 1926-27 to 1978-79 Exh. P. W.1/1 to 1/13 Khasra Girdawari from Kharif 67 to Rabi 82 Exh.P.W.1/14 to 1/17. One year's average for the period from 10-2-1976 to 10-2-1977 Exh.P.W.1/18. Wajibul Arz of the area Exh.P.W.1/19, copy of Mutation No.5215 attested on 11-6-1974 Exh.P.W.1/20, copy of Mutation No.5218, 5219, 528 and 5280 attested on 11-6-1974, 11-7-1974 and 17-12-1974 respectively as Exh.P.W.1/12 to 1/24. Samiullah Khan Patwari Halqa also appeared and placed on record one year's average from 5-11-1974 to 5-11-1975, Exh.D.E., 5 years' average from 5-11-1970 to 5-11-1975 Exh.D.F. Bashir Ahmad Durrani appeared as P.W.3 and stated that landowners were entitled for Rs.5,000 per marla as the same was the market value of the land. In rebuttal Muhammad Nihar N.T. Land Acquisition Charsadda appeared as R.W.1 and placed on record copy of Qabzul Wasool Exh.R.W.1/1, Muhammad Aslam Sub-Engineer Civil Division No.1 WAPDA appeared as P.W.2. This witness did not place any document on record. Sanobar Khan was examined as D.W.3.

13. The question which needs determination in this case is as to whether the compensation has been fixed in accordance with section 23 of the Land Acquisition Act or not? The reply to this question is in negative. While dealing with the question of fixation of compensation in Government of N.-W.F.P. through Collector Mardan and others v. Abdul Samad Khan and others (PLD 2002 SC 422), Nisar Ahmad Khan and others v. Land Acquisition Collector Swabi and others (PLD 2002 SC 25), Province of Punjab through Collector Attock v. Engineer Jamil Ahmad Malik and others (2000 SCMR 870) and Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another (1999 SCMR 1647) the august Supreme Court of Pakistan laid down criteria. Paras iv and xiii containing some of the principles are quoted below for convenience:-- "(iv) The best method of determination of the market price of the plots of landowner the acquisition shall rely on instances of sale of it near about the date of notification under section 4(1) of the Land Acquisition Act. The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighbouring locality, the potential value of the land need not be separately awarded because such sale covers the potential value."

(xiii) "The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted should be taken into consideration".

14. The August Supreme Court of Pakistan in the above mentioned case has laid down that the basic method is to take into consideration the instances of sale of the adjacent land made shortly before and after notification. Market value is to be determined on the basis of the instances of sale of land in neighbouring locality, the potential value of the land need not be separately awarded because such sale covers the potential value. Moreover, the value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation had been adopted should be taken into consideration.

15. In the case in hand the appellants had placed on record copy of Mutation No.5215 attested on 11-6-1974, Exh.P.W.1/20 and copies of Mutations Nos.5218, 5219, 5228 and 5280 attested on 11-6-1974, 11-7-1974 and 17-12-1974 respectively Exh.P.W.1/21 to Exh.P.W.1/24. According to Mutation No.5215 Exh.P.W.1/20 land measuring 1 Kanal, 1 Marla was sold for Rs,250,

000. Vide Mutation No.5218, Exh.P.W.1/21 land measuring 18 Marlas was sold for Rs.95,000, through Mutation No.5219 Exh.P.W.1/22 land measuring 18 Marlas way sold for Rs.95,

000. Similarly vide Mutation No.5228 land measuring 3/1-4 Marlas was sold for Rs.15,

600. Perusal of Mutation No.5280 Exh.P.W.1/24 shows that land measuring 1 Kanal, 4 Marlas 3 Sarsaies was sold for Rs.250,

000. The land mentioned in the above mutations was sold through registered sale-deeds on the basis of which the above mentioned mutations were attested. Perusal of one year's average for the period from 5-11-1974 to 5-11-1975 Exh.D.E. shows that the above mentioned mutations were not included in the same. Had the Patwari Halqa included all the sales which had taken place during the years 1974-75 the one year's average price would have been much higher than the one assessed by the Land Acquisition Collector. The Mutations Exh.P.W.1/20 to 1/24 were ignored not only by the Collector but by the learned Referee Court also, though the same form part of the record. No reason whatsoever has been given for discarding or for not taking those documents into consideration. The judgment and decree passed by the learned trial Court is based on misreading/non-reading of evidence.

16. It is also on record that land situated at the back side of the acquired property was acquired by the T & T Department for construction of Micro-waive Station. Award in that case was announced on 24-5-1980 and the Collector had fixed Rs.2073.29 per Marla as compensation. The learned Referee Judge had enhanced the compensation to Rs.5,000 per Marla, which was maintained by this Court in its judgment dated 5-1-1987 passed in Regular First Appeal No. 12 of 1985 Exh.P.W.3/2. No doubt section 4 notification in that case was issued on 17-12-1978 and Award was announced on 24-5-1980 i.e. after about 4 years of the Award issued in the case in hand, but the fact remains that there was high trend of rise in the price of land of the area because land which was situated at the back side and which was quite far away from the acquired land (in this case) was only after 4 years assessed at the rate of Rs.5,000 per Marla. This factor was also ignored by the learned Referee Court. In the judgments cited above it has been clearly held that the best method for fixing the compensation is to take into consideration the instances of sale of land of adjacent land made "shortly before" and "after" the notification.

17. The acquired land is admittedly situated in Charsadda Bazar This fact has not only been stated by Bashir Ahmad Durram (P.W.3) in his statement, but has also been admitted by Muhammad Nihar N.T. Land Acquisition Charsadda R.W.1 in the following words:-- "I have seen the acquired land. The disputed acquired land is surrounded by Abadi on the east, on west, and on south and on the north the office of WAPDA is situated. The disputed land is situated within the premises of Tehsil Bazar. The disputed land is situated within the Municipal Limits as well. "

18. After the admission of the Naib Tehsildar Acquisition a witness produced by respondents themselves there was left no room to doubt that the acquired land was not situated in Tehsil Bazar Charsadda. It, therefore, had potentiality for commercial purposes. The above-quoted portion of the statement of R.W.1 also shows that the disputed land was surrounded on three sides by the Abadi and on the other side is situated the office of WAPDA, it, therefore, had potential value for the residential purposes also. The Land Acquisition Collector as well as the learned Acquisition Judge has also ignored the potential value of the acquired land.

19. The above discussion leads me to the irresistible conclusion that neither the land Acquisition Collector nor the learned Referee Judge took into consideration the actual market value of the acquired land nor did appreciate the potentiality of the land. The learned Referee Court failed to appreciate the evidence available on record and he did not take into consideration the recent judgments of the higher Courts, whereby criteria for fixation of compensation has been laid down. In Nisar Ahmad Khan and others v. Land Acquisition Collector Swabi and others (PLD 2002 SC 25) it was held that the landowners are entitled to maximum possible benefits for the reason that such lands are acquired not by way of mutual negotiations, but under the State powers conferred on the public functionaries. Courts are, therefore, always liberal and generous in fixing the quantum of compensation based on different considerations. The average price per Marla as per ExhS.P.W.1/20 to 1/24 comes to Rs.7068 per Marla but since the landowners have themselves demanded compensation at the rate of Rs.5,000 per Marla, therefore, keeping in view the evidence available on record, the location, the potentiality of the acquired land and the criteria laid down by the August Supreme Court of Pakistan in the above quoted judgments fix compensation at the rate of Rs.5,000 per Marla. The landowners have already been given 15% compulsory acquisition charges, the appellants shall be entitled to same on enhanced rate also. The perusal of the Award as well as the impugned judgment shows that neither the Land Acquisition Collector nor the learned Referee Court has given interest to the landowners though under the law they are entitled to get the same. Although at the time when their land was acquired they were entitled to compound interest at the rate of 8%, but keeping in view the amendment in law pass decree for 6% simple interest from the date of taking over of possession of the land in dispute till payment of the amount of compensation. The appeals are allowed in the above terms with no orders as to costs. M.B.A./886/P Appeals allowed.