2025 PLP 2768 (YLR)

Muhammad Ijaz Khan, J.

Through this single judgment, this court intends to decide this Regular First Appeal No.03-A/2024 titled "Govt. of KPK etc v. Khalid Rehman Qureshi" as well as Cross Objection No.04-A/2024 titled "Khalid Rehman Qureshi and others v. Collector Land Acquisition and others" as both of them have arisen out of the same judgment of learned Referee Judge with respect to a common Award and common questions of law and facts are involved therein.

2. Precisely, the facts necessary for the disposal of the instant appeal and the connected Cross Objection are that the District Officer, Revenue and Estate/Collector, Haripur (appellant No.1 herein), on the request of Deputy Director Works and Services Haripur (appellant No.2 herein), after fulfilling of all the codal formalities including issuance of notification under section 4 of The Land Acquisition Act, 1894 (hereinafter is to be referred as The Act of 1894), has acquired, through the subject Award No.98 dated 31.10.2009, some land of the landowners/respondents situated in village Pandak Tehsil and District Haripur for "Construction of Lawyers Offices District Bar Haripur" which Award carries the detail of the acquired land qua its Khasra Number and corresponding area, whereby the market value / compensation of the acquired land was determined.

3. Being dissatisfied from the value/compensation of their acquired land as determined/fixed in the subject Award, the respondents/landowners filed Reference/objection petition under relevant section of the Act of 1894 and the appellants (acquiring departments) were summoned and they submitted their written reply to the aforesaid Reference of the landowners contesting the same on various legal and factual grounds and consequently the learned Referee Judge framed issues for the disposal of the Reference and both the parties were asked to produce their respective evidence which they did accordingly. During pendency of case, learned Referee Judge appointed a local commissioner who after conducting spot inspection submitted its report. Thereafter the concerned learned Referee Judge after hearing arguments from both sides, considered the report of the local commissioner to some extent and partially allowed Reference of the respondents/landowners through the judgment and decree dated 23.11.2010 which judgment and decree was set aside by this Court vide judgment dated 04.02.2021 passed in R.F.A.s Nos.64-A/2021 and 166-A/2021 and remanded the case to the learned Referee Judge who after complying the directions of this Court again partially allowed the objection petition vide judgment dated 08.07.2021 which judgment was also assailed through R.F.A. No.170-A/2021 which appeal was allowed by this Court vide judgment dated 06.03.2023 and the case was again remanded back to learned Referee Judge who, after doing the needful, vide impugned judgment and decree dated 30.09.2023 again partially allowed the objection petition of the landowners/respondent. Feeling aggrieved from the aforesaid judgment and decree dated 30.09.2023, the acquiring department as well as the respondents/ landowners have challenged the same before this Court through the instant appeal and the connected Cross Objection.

4. Today arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.

5. During the course of arguments, learned counsel for the appellants/ acquiring department contended that the learned Referee Judge while fixing the market value of the acquired land has not based its decision on valid grounds, however, when he was confronted that whether the Collector has correctly fixed the market value on the basis of one-year average, then thereafter he was unable to defend the same and then he was also confronted that as to whether on the available evidence they have established a fair market value of the acquired land, however, on this score too, he could not make reference to any such evidence/material and rightly so as the whole record/evidence is completely silent about the stance of the acquiring department with respect to a correct and fair market value of the acquired land.

6. Conversely, the learned counsel representing the respondents/landowners stated that neither the Collector nor the learned Referee Judge has determined and awarded a fair market value of the acquired land. He further contended that the Collector has even ignored one-year average while learned Referee Judge has also not regarded the report of local commissioner in its true letter and spirit.

7. In view of the above contentions, following are the moot questions for the determination of this court: (1) Whether the Collector has rightly fixed the market value of the acquired land as mentioned in the subject Award? (2) Whether the learned Referee Judge has rightly enhanced the compensation amount through the impugned judgment and decree? (3) What would be the appropriate compensation amount of the acquired land on the available material/evidence of the parties?

8. In order to answer the above questions, now this court proceed to analyze and appreciate the evidence and material available on the file(s). As far as question No.1 is concerned, at the very outset, it was noted that the worthy Collector has fixed the market value of the acquired land on the basis of Ost-Yaksala which criterion is, on one hand, not in accordance with the spirit of section 23 of The Land Acquisition Act, 1894 and on the other, the same has since been disapproved by the Supreme Court of Pakistan as well as by this court as it is settled since long that while determining the market value of the acquired land, Ost-Yaksala may be one of the factors, however, the same could not be an exclusive and authoritative factor for the same. The aforesaid established legal position could not be controverted by the learned counsel representing the appellants and rightly so as the Supreme Court of Pakistan in a case has since been held that numerous judgments and dictas given and laid down by this court with binding and laying guiding principles on the subject issue have unfortunately and conveniently been ignored by the Collector as he remained stuck to the one year average without taking care of present and future potentiality of the land acquired. It has been repeatedly laid down that being a compulsory acquisition of land for public purposes, the owners of the land are deprived of its utility while at the same time the Collectors Acquisition simply impose their own opinion ordinarily based on one year average which is not a correct approach to the matter, as has been laid down by this court.

9. As far as questions Nos.2 and 3 are concerned, it is the case of the respondents/ landowners from the very inception that the acquired land is commercial property which is situated near main GT Road, adjacent to old Court premises, offices of DOR, Haripur, Veterinary Hospital, Suzuki Adda, Markets, Pandak Link Road and Haripur-Khanpur Road, therefore, the same is suitable for commercial activities on account of its prime location. The aforesaid characteristic and location of the acquired land is manifestly reflecting from the contents of Objection Petition filed by the landowners as well as their Court statement. Relevant portion of objection petition is as under: Similarly, landowner/objector No.1 namely Khalid Rehman Qurehsi (who is also attorney for objector Nos. 2 to 5) appeared as OW-4 and he has categorically stated in his statement that: "...The property acquired by the respondents Nos. 1 and 2 towards its eastern side there is path of District Council which connects the main GT Road which is at a distance of about 300 feet. The property is commercial and there are facilities of water, electricity and sui gas... The property in suit adjacent to its are the Civil Courts, offices of DOR, Veterinary hospital and Government High School No.1 and main GT Road, bus stand which is at a distance of 300 feet from my acquired property and connects the same with Pandik road...."

10. Similarly, as per report of the local commission (CW-1) who was appointed by the learned Referee Judge, submitted his detail and comprehensive report where it has been observed as under: In view of the above overwhelming evidence available on file from which it can safely be concluded that the acquired land is situated at prime location of Haripur City and is near properties carrying commercial activities, offices, hospital, school, shops and markets etc, therefore, the learned local commissioner has suggested that the market value of the acquired land could be Rs.450,000/- per Marla.

11. Contrary to the aforesaid evidence of the respondents/landowners, though the appellants/acquiring departments have not brought on record any evidence to prove that either the acquired land is not situated near the G.T Road Haripur or its market value is less than that which has been awarded to the landowners through the impugned judgment and decree keeping in view its location qua potentiality as inspected/observed by the local commissioner (CW-1). Furthermore, the Court is not bound to accept the price/value suggested by the local commissioner in exactitude rather it can award the same or more or less than the same, therefore, the learned Referee Judge has not erred while not agreeing with the commissioner's opinion of Rs.450,000/- per Marla as market value of the acquired land and instead by enhancing of compensation amount of the landowners/respondents @ Rs.400,000/- per Marla.

12. During the course of arguments, the learned counsel representing the appellants/acquiring department vehemently argued that the learned Referee Judge has unnecessarily and wrongly attached a legal weightage to the commission report, however, it merits to mention here that the collection of evidence through local commissioner is an admissible mode duly recognized by the Code of Civil Procedure and the mode of collection of evidence by a local commissioner has approved by the Supreme Court of Pakistan in many cases including the case of Hassan Nawaz, whereby it was held that it is not always necessary that the Court may record evidence itself. For a variety of reasons, it may be recorded through a Commission. The Court as a principal may exercise powers and delegate authority, under section 75 or Order XXVIII, for personal appearance of a witness in front of the Commission either out of its own accord or on application of either party. However, it does not bar the Court itself of the authority to examine the witness where it is not satisfied. Similarly, in another case the Supreme Court has held that the Referee Judge has rightly relied on the report of the local commissioner who has visited the spot, prepared the site plan, recorded statements of the parties and witnesses and prepared his report stating that the land was very valuable and of commercial nature.

13. It has been the consistent view of Honourable Supreme Court of Pakistan as well as of this court that while determining the market value of the acquired land, not only the existing potentiality and market value of the acquired land is to be considered but its future potentiality is also to be considered. It has also to be born in mind that it is not a transaction between a willing purchaser and a willing seller rather it is a transaction which has been enforced upon the land owners. It is also to be kept in mind while determining the market value of the acquired land that the land owners are not only to be paid the market value of the acquired land but they are to be compensated in such a manner so that in future they may not feel any depravation for striking a losing transaction and as such by applying the aforesaid yardstick, the learned Referee Judge has rightly fixed the market value of the acquired land and as such, the same needs not any further enhancement as prayed by the landowners in their cross-objection.

14. The Supreme Court of Pakistan recently in a case has traced out judicially approved criteria for the determination of the fair market value of the acquired land. Para No.9 of the said judgment being relevant is reproduced below: "

9. This Court, while interpreting Section 23 of the Act has interpreted potential value to mean and include the following factors: (i) The land has potentiality if it is in close proximity to a residential area, or the municipal limits of a city. Also to be considered is that the acquisition of such land is proof of its potential for development. (Land Acquisition Collector and others v. Abdul Qayyum Malik and others 1980 SCMR 63). (ii) The land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, but also by reference to the uses to which it is reasonably capable of being put in the future; and market-value is the potential value of the property at the time of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time. (Fazalur Rahman and others v. General Manager, S.I.D.B and another PLD 1986 SC 158). (iii) Revenue record is not conclusive of the value of the land, rather it is the value of the use which the land is capable of and the use of the land in the vicinity. (Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/ Deputy Commissioner, Abbottabad and others 1991 SCMR 2164 and Land Acquisition Collector, G.S.C., N.T.D.C., (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28). (iv) The Court is to take into consideration the potentialities of the land, which may even include the price escalation, (sic) the issuance of notification under section 4(1) of the Act. (Land Acquisition Collector, Abbottabad and others Muhammad Iqbal and others 1992 SCMR 1245) and Sarhad Development Authority, NWFP (now KPK) through COO/CEO (Officio) and others v. Nawab Ali Khan and others 2020 SCMR 265). (v) For determining the price which a willing purchaser would give to the willing seller relying only on past sales is not enough as the value of the land with all its potentialities may be determined by examining local property dealers or other persons who are likely to know the price that the property can fetch in the open market. Where land is acquired near the Highway, its potentiality and future prospects are to be considered (Maqbool Ahmed Fatehally and others v. The Collector, District Lasbella and others 1992 SCMR 2342). (vi) The possibility of land being used for a different purpose in future and its potential value on account of its situation near the developed area is important. (Province of Punjab through Collector Bahawalpur, District Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692). (vii) Classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value may be tremendously high because its location, neighbourhood, potentiality other benefits. The potential uses to which the land can be put to is relevant. (Murad Khan through his widow and 13 others v. Land Acquisition, Collector, Peshawar and another 1999 SCMR 1647). (viii) Amenities such as roads, water, gas, electricity are relevant as is availability of schools and colleges in the vicinity of the acquired land. Urbanization of the area shows great potentiality of the area. (Ministry of Defence through Secretary, Government of Pakistan and others v. Syed Wajdi Rizvi 2009 SCMR 105 and WAPDA through S.E. Acquiring Cell CRBC Project WAPDA, D.I. Khan and another v. Syed Ali and others 2010 SCMR 82)." In another case, the Supreme Court of Pakistan has traced out all those factors which are to be considered while fixing the market value of the acquired land. Para No.7 of the said judgment being relevant is reproduced below: "Under section 23(1) of the Act, compensation is to be determined on the basis of the market value of the land at the date of publication of the notification under section 4 of the Act. The Court assessing compensation is required to take into consideration not only the present purpose or the present use to which the land is applied but also any other more beneficial purpose to which it might reasonably be put by the owner. Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam [AIR 1939 PC 98]. Indubitably, it is true that regard can be had only to the existing conditions and what is likely to happen in reasonably near future and compensation cannot be fixed on the basis of what might happen in the dim and distant future. Where there is a reasonable possibility of the land being put to a more profitable use within a reasonable period the same cannot be ignored in assessing its value. Bailey v. Isle of Thanet Light Railways Company [(1990) 1 QB 722]. Compensation has always to determined by reference to the price which a willing vendor may reasonably expect to obtain from a willing purchaser. Fazalur Rehman and others v. General Manager, SIDB and another [PLD 1986 SC 158]. When the land possesses some unusual, special or unique features as to its location or potentialities, due weight must be attached to all these elements. Askari Cement through Chief Executive v. Land Acquisition Collector (Industries) Punjab, etc [2013 SCMR 1644]. After considering all the circumstances, the Court has to arrive at a fair estimate with reference to the surrounding circumstances and evidence in the case and to award a fair compensation on that basis. The Court further ought to be liberal in the sense that it should not be too meticulous or pedantic in dealing with the evidence. It is also true that an entry in the revenue record as to the nature of the land may not be conclusive. If the land acquired is found to be useful both for agricultural or non-agricultural purposes, merely on the ground that it was used as agricultural land by the owner till the time of its acquisition, its potentiality as non-agricultural land cannot be ignored. Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner. Abbottabad and others [1991 SCMR 2164]." Recently in two cases, the Supreme Court of Pakistan has extended the scope of section 23 of the Land Acquisition Act by observing that since a citizen/land owner is subject to eminent domain of the government, therefore, the claims of the land owners is to be considered sympathetically. Para No.8 of the judgment reported as 2023 SCMR 700 being relevant is reproduced below: "

8. It is important to state that the intention of the legislature behind section 23 was that whenever a Court is determining the quantum of compensation to be awarded to those who had been subjected to exercise of the power of eminent domain under the LAA 1894, it needs to be considerate and sympathetic towards the claims made by those whose property was compulsorily taken by the state against their will for a public purpose. Section 23 allows a Court to compensate such landowners for giving up their properties for the greater good, on the doctrine of individual rights must give way to the greater public interest (salus populi suprema lex esto)."

15. So keeping in view the above string of authorities and the evidence brought by the parties as well as the commission report and the judicial consensus developed so far qua the matters which are to be considered for determination of the market value of the acquired land, the respondents/ landowners are entitled qua enhancement in compensation amount to the one fixed in the impugned Award, therefore, the learned Referee Judge has rightly enhanced the same through the impugned judgments and decree and the same needs not any further enhancement as prayed by the respondents/landowners, in their cross-objection.

16. In view of the above discussion and expositions of law on the subject, it is held that the impugned judgment and decree of the learned Referee Judges is sound and well-reasoned, therefore, the same needs no interference at all by this Court, therefore, the instant appeal as well as the connected Cross-Objection being meritless are accordingly dismissed and consequently the judgment and decree of the learned Referee Judge, Haripur dated 30.09.2023 is maintained and upheld. MH/127/P Appeal dismisse