2021 PLP 255 (CLC)

AHMAD ALI, J.

Through this single judgment, I intend to decide the following appeals as common question of law and facts involved and both these appeals pertain to the same award No.03 dated 24.06.1992 and outcome of same Judgment dated 10.06.2017: 1) RFA No.130-A of 2017 with C.Ms. Nos.263 and 264-A of 2017 Collector Land Acquisition Haripur and another v. Col. Sardar Ahmad Yar Jang Durrani and another 2) RFA No.131-A of 2017 Col. Sardar Ahmad Yar Jang Durrani v. Collector Land Acquisition Haripur and another

2. Facts essential for the decision of both the aforementioned appeals are that a chunk of land measuring 57 Kanals 12 Marlas, falling within the precinct of revenue estate of village Kotla Tehsil and District Haripur was acquired by the Highway Division Abbottabad and the rate of compensation was fixed as Rs.3428/40 per kanal for Ghair Mazroha and Rs.82281/60 per kanal for Chari land. The quantum of compensation was not acceptable to affected land owner, Sardar Ahmad Yar Jang Durrani, and he for redetermination of the rate of compensation preferred an objection petitions under section 18 of the Land Acquisition Act, 1894 to the Collector Land Acquisition and the same was ultimately referred to the Referee Court. Previously the learned Judge Referee Court vide Judgment dated 22.11.2003 declined the prayer for enhancement of land however, petition to the extent of refund of amount of compensation so received by the respondent No.2 was allowed. The Objector preferred R.F.A. No.24/2004 before this Court which was allowed vide Judgment dated 07.12.2006 and the case was remanded back to the Referee Court to re-evaluate the potential value and assess the price of trees and then to decide the objection petition afresh. After the remand of case, a local commission was appointed to ascertain and assess the value of trees and then the objection petition was partially allowed vide judgment dated 17.10.2009. However, in appeal R.F.A. No.85/2009, this Court vide Judgment dated 27.01.2015 set aside the judgment dated 17.10.2009 and remanded the case back to learned Referee Court with the following directions: "

and remand the matter to the learned referee Court for decision afresh after proper evaluation of the potential value of the acquired land as well as to assess the prices of the trees. The parties are at library to produce the evidence before the learned trial Judge and, if need be, the learned referee Judge may order for the appointment of another fresh local commission.--"

3. After receiving the case file on remand, the learned referee Court appointed Mr. Inayat-ur-Rehman Advocate as local commissioner to: i. Visit and highlight location of the acquired property; ii. Opine about present status, superstructure and development made over the years; iii. If possible, to report condition and status of the property at the time of its acquisition and for that matter, he may approach and associate any department for the record concerned as well as local inhabitants and the parties for collection of relevant evidence of the period; iv. Determine distance of the property from Islamabad and famous sites and building in the nearby; v. Report nature of the business/commercial activities in the surroundings vi. Determine market value of the property at the time of publication of notification under Section 4 of the Land Acquisition Act, 1894, regarding which he shall associate local inhabitants, property dealers of the area and can collect any evidence;

4. The local commission submitted his blow-by-blow report wherein he specifically mentioned the existence of famous hotels and high potentiality of the acquired land and that now-a-days the land is being sold at least @ Rs.2 million per kanal. According to him the property in question was suitable for high quality business of food. The learned local commission after consulting with the Patwari Halqa, inhabitants of the area and property dealers opined the market value at the time of acquisition Rs.85,000/- per kanal and its present value is ranging from Rs.2 million to Rs.5.5 million. Besides, the local commission also submitted detail report as to the average prices in the vicinity from 1988 to 2016 which show an upward trend in the prices of lands. The statement of local commission recorded as CW-1 is fully in line with the report and nothing material discrepancy could be pinpointed during his cross-examination.

5. There is no cavil with the proposition that the acquired property was adjacent to Pir Sohawa, a known place for commercial activities. In the present case Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 19.10.1989, however, the possession of land was probably taken in the year 1992 and award was announced on 24.06.1992. The statement of Patwari Halqa, recorded as OW-1, and according to him the property in question was located at the bank of road. He also produced one-year average for the year 1992 (Ex.O.W.1/3) showing average price Rs.20,000/- pe kanal and one-year average for the year 1993 (Ex.O.W.1/4) showing average price as Rs.100,00/- per kanal. A considerable high difference in the above-mentioned average prices for the years 1992 and 1993 makes it clear that the acquired property was a valuable chunk of land. Representative of respondents while appearing as RW-1 did not deny the version of objector rather his statement was with regard to the payment of compensation to the respondent No.2 instead of objectors. It is worthy that the claim of objector against respondent No.2 was settled and his name was deleted by the Referee Court nevertheless, he was arrayed in this appeal unnecessarily.

6. The august Supreme Court of Pakistan in the case titled Land Acquisition Collector and others v. Mst. Iqbal Begum and others (PLD 2017 SC 719) was pleased to hold: "It is well settled by now that "to determine compensation the Court must ascertain the value on the date of notification, considering various factors including nature and location of acquired land and sale price of adjoining lands. In assessing market value of land, its location, potentiality and price evidenced by transactions of similar land at the time of notification are factors which should be kept in view. 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."

7. It is very important to note that in the Land Acquisition Act, 1894, for the payment of price of land to affected landowners, the word "COMPENSATION" is used and not the word "MARKET VALUE" however, compensation should not be less than the market value. There is much difference between the terms 'compensation' and 'market value'. The market value is a highest price for which a property is exchanged on the date of valuation between a willing buyer and a willing seller in an arm's-length transaction wherein the parties acted knowledgeably, prudently, and without compulsion. Whereas, the term 'compensation' though used in various sections of the Land Acquisition Act, 1894 but has not been defined therein. But, as per dictionary meaning the compensation means "something, typically money, awarded to someone in recognition of loss, suffering, or injury" or "money that is paid to someone in exchange for something that has been lost or damaged or for some problem". As the property was acquired against the will of owner, therefore, in order to eliminate the sense of deprivation and discrimination, the affected landlord is compensated with the amount not less than market value prevailing at the time of acquisition. It would be unjust to the landowner if the amount of compensation is less and similarly it would be unjust to the public interest, if he is awarded more and it is based on the principle 'quid pro quo'. The Holy profit (peace be upon him) has guided us with saying, "Sell gold in exchange of equivalent gold, sell silver in exchange of equivalent silver, sell dates in exchange of equivalent dates, sell wheat in exchange of equivalent wheat, sell salt in exchange of equivalent salt, sell barley in exchange of equivalent barley, but if a person transacts in excess, it will be usury. However, sell gold for silver anyway you please on the condition it is hand-to-hand (spot) and sell barley for date anyway you please on the condition it is hand-to-hand (spot)." Therefore, in order to maintain equilibrium between individual interest of an affected landowner and general interest of public at large, the compensation should always be that amount on which a seller can willingly sell his land and that is not much or less than the market value.

8. The learned Judge Referee Court in the impugned Judgment dated 10.06.2017 enhanced the rate of compensation as Rs.20,000/- per kanal in view of the one-year average price of the year 1992 (Ex.O.W.1/3) by keeping aside the report commission. The learned trial court erred a-lot in holding that the local commission assessed the present market value of the property which ranges between Rs.2 million to Rs.5.5 million per kanal which is the rate of land 25 years after the acquisition. The learned court below failed to comprehend the Report Commission (Ex.C.W.1/1) wherein besides present rates of the land i.e. from Rs.2 to 5.5 million, rate prevailing at the time of acquisition i.e. Rs.85,000/- per kanal has also been mentioned. Both the parties, during the course of cross-examination of local commissioner as CW-1, could not shatter the opinion of local commissioner which was according to on-spot position of the land in question. Even otherwise, the average price of land in the year 1992 vide Ex.O.W.1/4 was Rs.100,000/- per kanal, therefore, I do no hesitate to hold that the market price Rs.85,000/- per kanal as suggested by the local commission in his report Ex.C.W.1/1 is quite justified and without any exception. The claim of objector for fixing the rate of compensation Rs.500,000/- per kanal is without any backing. The judgment of learned referee Court with regard to the compensation of trees and other charges is based on proper appreciation of the record and law, therefore, the same to this extent do not warrant any interference by this Court.

9. In the premises aforesaid, the compensation of the acquired land is hereby enhanced to Rs.85,000/- per kanal and the impugned Judgment of the learned Referee Court is, as such, modified to this extent only. Accordingly, the R.F.A. No.130-A/2017 filed by the acquiring department with pending CMs stand dismissed, whereas, the R.F.A. No.131-A/2017 filed by the Objector stands disposed-off in the above terms. Cost shall follow the events. ZC/180/P Order accordingly.