2015 PLP 676 (CLC)

WAQAR AHMAD SETH, J.

Mst. Mehr Afzoon and other appellants have filed this regular first appeal against the judgment and decree dated 2-7-2009, whereby learned District Judge, Mansehra fixed Rs.12610 per marla as market value of the acquired land.

2. Brief and relevant facts leading to instant appeal are that respondent No.4 compulsorily acquired the landed property of the appellants for the construction of Green spot at the crossing of KKH Shinkiari Road Mansehra Taleh Park and assessed the compensation amount. The appellants feeling aggrieved filed objection petitions under section 18 of the Land Acquisition Act, 1894 for enhancement of compensation amount of their acquired land. The respondents appeared and contested the objection petitions by filing written statements and learned referee Court after recording pro and contra evidence and hearing the parties accepted the objection petitions and fixed Rs.12610 per marla as market value of the acquired land.

3. Arguments heard and record perused.

4. Admittedly, on the request of Administrator Municipal Committee, Mansehra the land situated in Mansehra City was acquired at public expense for public purpose, namely, the construction of Taleh Park Bhut Bridge. Hafiz Muhammad Nasim Advocate Mansehra was appointed as Local Commissioner for spot inspection and determination of compensation of the acquired land. The Local Commissioner visited the spot on 5-6-2009, recorded statements of witnesses on the spot and certain photographs were also taken by him whereas none participated the proceedings on behalf of respondents. The Local Commissioner Submitted as report, which is marked as Exh.CW1/1. It is an admitted fact that the acquired property is situated in the mid of the city on Mansehra-Shinkiari Road and, as such, is suitable for the construction of shops and markets. The Local Commissioner opined that at the time of acquisition of the land its price would be about Rs.2,50,000 per marla. Learned referee Court had ignored the report of Local Commissioner, appointed for the purpose by itself, and has enhanced the compensation on his own accord and that too without any solid basis / evidence or criteria.

5. Now it is settled law that the present trend of extraordinary hike of landed property, the criteria of one year average cannot be made basis for assessment of compensation amount of acquired land. In case of acquisition of land, the land is acquired in the interest of general public at public expense on the basis of sacrifice of an individual, which requires to adequately compensating the individual in extraordinary manner and the compensation should be fixed in the light of criteria of a willing vendor and that of a needy vendee. In this regard wisdom can be drawn from case titled "Land Acquisition Collector and others v. Mst. Iqbal Begum and others" reported as PLD 2010 Supreme Court 719, wherein it has been held as under:

"The principles laid down for determination of compensation reflect anxiety of law-giver to compensate those deprived of property adequately enough so as to be given gold for gold and not copper for gold" .......... One year's average of sales taking place before publication of notification under section 4 of similar land is merely one of the modes of ascertaining market value and is not an absolute yardstick for assessment of compensation. Moreover, status of acquired land, its potentialities and its likelihood of development and improvement would be necessary factors for determining rate of compensation".

6. Page 151 of the appeal file shows that out of acquired land 10 marlas has been handed over to Police Department for establishing Rescue 15 Service and for that purpose the Police Department would erect the building, hence, it cannot be said that the property in dispute is useless and non-potential area. The valuation table, for the year 2005-06 Exh.PW2/2 on the basis of which learned referee Judge has assessed the value of the property is meant for stamp duty and other taxes chargeable and is never meant for compensation purposes, which was followed by the referee Court is not according to legal, equitable criteria, which has been laid down under the law and the wisdom laid down by the apex Court. Hence, for proper assessment of compensation the only available document, which leads to the equitable compensation is the report of Local Commissioner Exh.CW1/1, vide which the compensation has been proposed @ Rs.2,50,000 per marla. The appellants in their objection petitions claimed compensation of the acquired land at the rate of Rs.2,00,000, which seems to be genuine, legal, proper, just and equitable according to the prevailing trend of hike in the prices of landed property, especially when admittedly the acquired land has a future potentiality and is situated in the mid city of Mansehra as well as on the road side. In this respect this Court has already settled the principle for assessment of land so acquired in case of Sultan Shah and another v. Land Acquisition Collector, Swabi and others reported as PLD 2011 Peshawar page 60, wherein it has been held as under:

"Land acquisition

Compensation, determination of

Essential factor liable to be considered being potential value of acquired property in the light of future prospects of similarly placed property

"Yaksala" or "Punjsalas" could and should not be only considered for such determination."

7. Consequently, this appeal is allowed, impugned judgment and decree of referee Court are set aside and appellants are held entitled to the compensation of acquired land at the rate of Rs.2,00,000 per marla besides 6% simple interest from the date of possession till payment. No order as to costs. MH/194/P Appeal allowed.