2005 PLP 1453 (CLC)

TALAAT QAYUM QURESHI, J.

Land Acquisition Collector, Swabi Scarp acquired land measuring 187 Kanals, 10 Marlas for reconstruction and remodeling of Bandai Drain in Mauza Doti Tehsil and District Mardan. Award No.9 was published on 11-2-1996 in the official Gazette.

2. The Collector classified the acquired land into the four categories and fixed the following compensation for different kinds of land:-- Kind of land Compensation (i) Shah Nehri land (near the Abadi) Rs.5,900 per Marla (ii) Shah Nehri land (potential residential Rs.14,500 per Marla area) (iii) Shah Nehri land (away from Abadi) Rs.1,500 per Marla (iv) Ghairmumkin Rs.375 per Marla

3. The landowners were also awarded 15% compulsory acquisition charges and simple interest at the rate of 6% from 17-1-1996 to 10-2-1996.

4. The landowners being not satisfied with the amount of compensation fixed by the Land Acquisition Collector filed Objection Petition which were referred to the learned Judge Referee Court for determination. In many cases the learned Judge Referee Court enhanced the amount of compensation to Rs.9,847 per Marla irrespective of kind of land, but in Objection Petition filed by Hamida Begum the amount of compensation was enhanced to Rs.26,000 per Marla. Still not satisfied with the compensation the landowners have filed Appeals bearing (1) R.F.As. Nos.85 of. 2002 (2) 89 of 2003, (3) Cross-Objection No.2 of 2003 (4) 34 of 2004 and (5) Cross-Objection No. 1 of 2005, whereas the Acquiring Department has filed R.F.As. (1) 108 of 2002, (2) 109 of 2002, (3) 72 of 2003, (4) 82 of 2003, (5) 94 of 2003, (6) 21 of 2004, (7) 50 of 2004 and (8) 51 of 2004. Through this single judgment we shall dispose of these appeal and cross-objections as all of them emanate from one and the same Award No.9, dated 11-2-1996.

5. We discuss below each appeal separately.

6. In R.F.A. No. 85 of 2002 (filed by land owners) and R.F.A. No.108 of 2002 (filed by Acquiring Department) land measuring 50 Kanals, 11 Marlas belonging to appellants was acquired. Landowners being not satisfied with the amount of compensation fixed by the Collector filed Objection Petition No.14/4 of 1996 which was resisted by the Acquiring Department. The learned trial Court after framing issues invited the parties to lead evidence in support of their respective claims.

7. Landowners/objector examined Abdur Rahim, Patwari Halga P. W.1, who placed on record Fard Jamabandi for the year 1978-79 Exh. P. W.1/1, Khsara Girdawari from Kharif, 1979 to Kharif 1982 Exh.P.W.1/2, Aks Shajara Kishtwar Exh.P.W.1/3. Acquisition proceedings Exh.P.W.1/4, one year average for the period from 25-5-1994 to 25-5-1995 Exh.P.W.1/5, one year average for the period from 25-8-1996 to 25-8-1997 Exh.P.W.1/6. He also produced record of rights for the year 1978-79 Exh.P.W.1/7, Khasra Girdawari from Kharif, 1983 to Rabi 1997 Exh.P.W.1/8. Aks Shajara Kishtwar for the year 1925-26 Exh.P.W.1/9, Mutation No.20931 Exh.P.W.1/10. Qazi Abdul Raziq appeared for himself and for other objectors as their attorney and placed on record power of attorney Exh. P. W.2/ 1, copy of Award dated 11-2-1996 Exh.P.W.2/2. Later dated 20-9-1995 Exh.P.W.2/3. Khasra Girdawari Exh. P. W.2/4.

8. In rebuttal Hanif Muhammad, Patwari, Swabi Scarp Mardan was examined as D.W.1. He placed on' record copy of Notification under sections 4, 5 and 6, Exhs.D. W.1/1 to 1/3, one year average for the period from 25-5-1994 to 25-5-1995 Exh.D.W.1/4, copy of Award Exh.D.W.1/5, Notices under sections 9 and 10 Exhs.D.W.1/6 and 1/7. Muhammad Ashraf S.E./Director Progress and Coordination was examined as D.W.2. Thus, the evidence of the parties was closed.

9. Mr. Abdul Sattar Khan, Advocate the learned counsel representing the appellants in R.F.A. No.85 of 2002 argued that the land of the appellants was adjacent to the land of Hassan Khan and Mst.. Hamida Begum to whom the Collector had fixed high compensation of Rs.14,500 per Marla (which was enhanced by Referee Court to Rs.26,000 per Marla), but the appellants were deprived of the same rate in the Award although their land was lying adjacent to their lands.

10. It was also argued that the lands of the appellants had great potential value. There was a road leading adjacent to the said land and there were Cigarettes manufacturing units in the vicinity of the land which fact has been confirmed not only by the appellant in his statement but by Hakim Said, Local Commissioner and Hanif Ahmad, Patwari Halqa D.W.1 and Muhammad Ashraf, S.E. D.W.2 in their statements also. The potentiality of the land was not considered by the learned Referee Judge. Reliance in this regard was placed on the following reported judgments: (i) 1987 SCMR 1647; (ii) 2000 SCMR 870; (iii) 2000 SCMR 1322; (iv) 1991 SCMR 2164; (v) PLD 1997 Pesh. 90.

11. It was also argued that the report of the Local Commissioner was confirmed by the learned Referee Judge which suggested the compensation at the rate of Rs.14,500 per Marla, but the same was ignored without any lawful justification. Reliance was placed on the following judgments:-- (1) PLD 1996 Pesh. 22; (2) 1996 CLC 27; and (3) PLD 1995 Pesh. 78.

12. It was also argued that Muhammad Saddique and Minshad Khan had also tiled Objection Petition No.26/4 of 1999 with regard to their property acquired through Award No.9, the learned Referee Judge fixed Rs.20,000 per Marla compensation vide judgment/decree, dated 2-10-2002.

13. It was also argued that Mst. Hamida Begum had also filed Objection Petition No.7/4 and the learned Referee Court enhanced compensation to Rs.26,000 per Marla for the acquired property of Mst. Hamida Begum. The rule of consistency demands that the appellants should also be given the same rate of compensation as given to the landowners of the adjacent property.

14. Mr. Abdul Qader Khattak, Advocate the learned counsel representing appellants in R.F.A. No.108 of 2002 argued that the Collector Land Acquisition had, while keeping in view the nature of land, fixed proper compensation but Referee Court, without caring for the classification of land while adopting Formula of its own, had enhanced the amount of compensation to Rs.9,847 for which there was no lawful justification.

15. It was also argued that the acquired land was waterlogged before its acquisition, therefore, it was not fit for residential as well as commercial purposes. This fact was ignored by the learned Referee Court.

16. In R.F.A. No.34 of 2004 (filed by landowners) and R.F.A. No.51 of 2004 (filed by Acquiring Department) land measuring 2 Kanals, 11 Marlas belonging to appellants was acquired. The landowners being not satisfied with the amount of compensation fixed by the Collector filed Objection Petition No.7/4 of 1996. The learned trial Court framed issues and invited the parties to adduce evidence in support of their respective claims.

17. The landowners examined Jehanzeb Registration Clerk of the Office of Sub-Registrar Mardan as P. W.1, who produced copy of sale-deed No.67, dated 31-1-1996, deed No.73 registered on 1-2-1996, deed No.77 registered on 6-2-1996 copies whereof were placed on record as Exhs.P.W.1/1 to 1/3. Said Rehman, Patwari was examined as P.W.2. He placed on record copy of one year average for the period from 1-2-1995 to 1-2-1996. Anwar Khan Patwari Halqa was again examined as P.W.2. He produced copy of Fard Jamabandi for the year 1996-97 Exh. P. W.2/1, Fard Jamabandi for the year 1996-97 Exh. P. W .2/2, Fard Jamabandi for the year 1996-97 with respect to Khasra No.478/2 and Khasra No.478/1, Exh.P.W.2/3, Khasra Girdawari Exh. P.W.2/4. Muhammad Bashir, Patwari Halqa was also examined as P.W.2. This witness did not produce any document. Muhammad Anwar A.D.K., Mardan was examined as P.W.3. He placed on record one year average for the period from 1-2-1995 to 1-2-1996 Exh.P.W.3/1. Aks Shajara Kishtwar for the year 1996-97 Exh.P.W.3/2. Abdullah Shah, Patwari Scarp, Mardan also examined as P.W.4. He placed on record copy of Award No.9 Exh.P.W.4/1. Notifications under sections 4, 5, 6, 9 and 10 Exhs.P.W.4/2 to 4/5, one year average for the period from 25-5-1994 to 25-5-1995 Exh.P.W.4/6. Acquaintance Roll Exh.P.W.4/7. Application dated 30-7-1995 submitted by Mst. Hamida Begum Exh.P.W.4/8, Aks Shajara Kishtwar Exh.P.W.4/9. Fard Jamabandi for the year 1978/79 Exh.P.W.4/10 Murad Ali Khan, General-Attorney of landowners was examined as P.W.S. He exhibited general power of attorney of the objectors Exh.P.W.5/1.

18. In rebuttal Hamidullah S.D.O. Swabi Scarp, Mardan was examined as R.W.

1. Thus, the evidence of the parties was closed.

19. Haji Muhammad Jamil Khan, representing appellants/landowners argued that the acquired land was most commercial and situated on road side. This fact was also admitted by the Revenue staff while recommending the amount of compensation and the recommendations of the Revenue staff were incorporated in the Award itself. The Revenue staff, while keeping in view the potentiality of the land, proposed compensation at the rate of Rs.26,000 per Marla, but the Collector fixed only Rs.14,500 per Marla.

20. It was also argued that the learned Referee Court failed to appreciate the evidence available on record properly. In order to show that the market value of the land in the said area was Rs.1,00,000 Per Marla, the appellants produced Exh.P.W.1/1, copy of registered sale-deed No.72, dated 1-2-1996. Similarly Exh.P.W.1/2, is copy of registered sale-deed No.73, dated 1-2-1996. Exh.P.W.1/3 was yet another copy of registered sale-deed No.77, dated 6-2-1996. Through all the above mentioned deeds land at the rate of Rs.1,00,000 per Marla was sold, which were conveniently ignored by the learned Referee Judge.

21. It was also argued that neither the official of the office of Sub-Registrar who produced the above mentioned deeds was cross-examined nor the respondents produced any evidence in their rebuttal.

22. It was also argued that land measuring 2 Kanals was acquired for Model School (Primary) in the vicinity in the year 1993 and at that time a sum of Rs.26,000 was proposed compensation for the land acquired by the authorities. The appellant's land is much better located than the land acquired in the year 1993, hence the appellants were entitled for much more compensation than given by the learned Referee Judge.

23. It was also argued that since the acquired land is situated at the main Swabi Road, therefore, its compensation should be enhanced to at least Rs.1,00,000 per Marla. Reliance was placed on the following judgments:-- (1) 1997 SCMR 1692; (2) 1985 SCMR 395; (3) PLD 1986 SC 158; (4) PLD 1988 SC 32; (5) 1996 SCMR 1361; and (6) PLD 1997 SC 1470.

24. Mr. Fida Gul Khan, Advocate the learned counsel representing appellant in R.F.A. No.51 of 2004 and respondents in R.F.A. No.34 of 2004 argued that the Land Acquisition Collector had fixed compensation of Rs.14,500 per Marla for the land acquired on the basis of the report of the Revenue staff, which amount was unnecessarily enhanced by the learned Referee Judge to Rs.26,000 per Marla as there was no lawful justification for the said enhancement.

25. It was also argued that when the land in question was acquired, the same was waterlogged, however, after the construction of Bandai Drain the land became fertile and valuable. This fact was confirmed by Anwar Khan, Patwari Halqa (P.W.2) and Abdullah Shah Patwari, Mardan Scarp (P.W.4) in their statements.

26. It was also argued that the learned Referee Court erred in granting 25% compulsory acquisition charges instead of 15% to the respondent Mst. Hamida Begum though she was not entitled for more than 15%.

27. In R.F.A. No.89 of 2003 (filed by landowners) and in R.F.A. No.94 of 2003 (filed by Acquiring Department) this appeal in fact had not been fixed for today, but the learned counsel for the appellants pointed out the non-fixation of appeal, the file was sent for and office was directed to fix the same for today also. Mr. Fida Gul Khan, Advocate who was present in Court to argue counter-R.F.A. No.94 of 2003 accepted the notice for today. In the above appeals land measuring 13 Kanals of the landowners was acquired. Being not satisfied with the rate of compensation fixed by the Land Acquisition Collector the landowners filed Objection Petition No.13/4.

28. The landowners in support of their claim examined Noorul Basar A.D.K. Mardan as P.W.1, who placed on record one year average for the period from 25-5-1994 to 25-5-1995 Exh.P.W.1/1. Aman Khan appeared as P.W.2 for himself and as attorney for the Objectors Nos.2, 3 and

8. He placed on record copy of power ,of attorney Exh. P. W .1 /2 to Exh.P.W.1/3, copy of Award as Exh.O.W.2/3, copy of Register Haqiat Asami War Exh.O.W.2/4, Fard Jamabandi for the year 1978-79 Exh.O.W.2/5, Khasra Girdawari Exh.O.W.2/6.

29. In rebuttal Abdullah Shah Patwari Halqa Swabi Scarp Mardan was examined as R.W.1. He placed on record copies of Notifications under sections 4, 5 and 6 Exhs.R.W.1/1 to 1/3, one year average for the period from 25-5-1994 to 25-5-1995 Exh.R.W.1/4, Qabzul Wasool Exh.R.W.1/5. Barkatullah sub-Engineer Scarp WAPDA Mardan was examined as R.W.2. The evidence of the parties was thus, closed.

30. Mr. Khalid Khan, Advocate, the learned counsel representing the appellants in R.F.A. No.89 of 2003, argued that the market value of the acquired land was very high but the Land Acquisition Collector fixed very nominal price.

31. It was also argued that the acquired land was not only fit for residential purposes, but was also fit for commercial use also, but these facts were ignored by the learned Referee Court while enhancing the amount of compensation.

32. Mr. Fida Gul khan, Advocate representing appellants in R.F.A. No.94 of 2003 argued that the acquired land was in fact waterlogged and was not fit for residential as well as commercial purposes. The Collector had properly fixed the compensation but the learned Referee Court erred in enhancing the same.

33. In R.F.A. No.21 of 2004 Chairman, WAPDA (Acquiring Department) and in Cross-Objection No.1 of 2005 (the land owners) land measuring 5 Kanals, 14 Marlas was acquired. The landowners being not satisfied with the amount of compensation fixed by the Collector filed Objection Petition No.16/4 of 1996. The learned trial Court framed issues and invited the parties to adduce evidence in support of their claims.

34. The landowners examined Anwar Khan A.D.K., Mardan. He produced one year average for the period from 25-5-1995 to 25-5-1996 as Exh.P.W.1/1, according to which the price of the land comes to Rs.7553195 per Marla. Abdur Rauf, Special Attorney of the objectors was examined as P.W.2. He also placed on record his special power of attorney as Exh.P.W.2/1.

35. In rebuttal Abdullah Shah, Patwari Halqa Scarp Mardan was examined as R. W.1. He placed on record copies of Notifications under sections 4, 5 and 6 of the Land Acquisition Act as Exh.R.W.1/1 to Exh.R.W.1/3. He also placed on record one year average for the period from 25-5-1995 to 25-5-1996 as Exh.R.W.1/4. He also produced copy of Award and Asami War as Exh.R.W.I/5 and Exh.R.W.I/6. 1-Iamidullah S.D.O. Swabi Scarp Mardan was examined as R.W.2 and the evidence of the parties was thus, closed.

36. In Cross-Objection No.1 of 2005 in R.F.A. No.21 of 2004 Mr. Khurshid Ali, Advocate representing the objector/landowners argued that land measuring one Kanal belonging to the objectors comprising Khasra No.505 was acquired by the Acquiring Department. In addition to the said land, the Acquiring Department took possession of 1 Kanal, 6 Marlas in excess without paying any compensation to the landowners for which the appellants filed Suit No.368/1 on 7-3-1996 in the Court of learned Civil Judge, Mardan, which was decreed in their favour on,17-3-2003 and no appeal or revision has been filed thereagainst, hence the judgment and decree, dated 17-3-2003 has attained finality.

37. It was also argued that the Referee Judge has followed formula of compensation of its own. The compensation proposed by the Government for three kinds was divided by three and Rs.9,847 per Marla was fixed. Had the compensation fixed for Mst. Hamida Begum at the rate of Rs.26,000 per Marla been also added and the entire amount divided by four, then the amount of compensation would have been Rs.13,885 per Marlas, which would still be much higher than the one fixed by the learned Referee Court.

38. It was also argued that the land of the objectors was situated adjacent to the road side. This fact was admitted by Abdullah Shah Patwari, Mardan Scarp as R.W.1 in his statement, which is to the effect that the acquired land is situated in village Hoti and Pakka Road leads to the said land.

39. In R.F.A. No.82 of 2003 (filed by the Acquiring Department) and Cross-Objection No.2 of 2003 (filed by landowners) land measuring 4 Kanals 4 Marlas was acquired. The landowners being not satisfied with the amount of compensation fixed by the Collector filed Objection Petition No.25/4 of 1996. The learned trial Court framed issues and invited the parties to produce evidence in support of their respective claims.

40. The landowners examined Said Rehman, Patwari Halqa Mauza Hoti, Mardan, ,who placed on record Fard Jamabandi for the year 1996-97, Khasra Girdawari from Kharif, 1999 to Rabi, 2000 as Exhs.P.W.1/4 and 1/5. Jehanzeb Khan A.O.K. Mardan was examined as P.W.2. He placed on record copy of mutations (10 sheets) as Exh. O. W. 2/1. Vide Mutation No.20615 land measuring one Kanal was sold at the rate of Rs.10,000, vide Mutation No.20607 land measuring 21 Kanals, 9 Marlas 4 Sarsaies was sold for Rs.1,50,000, vide Mutation No.20386 land measuring 11 Kanals, 11 Marlas was sold for Rs.1,00,

000. Said Anwar, Special Attorney of the objectors was examined as O.W.3. He placed on record copy of his special power of attorney as Exh.O.W.3/1. He also placed on record copy of Award as Exh.O.W.3/2.

41. In rebuttal Abdullah Shah, Patwari was examined as R.W.1. He placed on record Notifications under sections 4, 5 and 6 of the Land Acquisition Act as Exh. R. W.1/1 to Exh. R. W.1/3. He also placed on record one year average as Exh.R.W.1/4, copy of Acquaintance Roll as Exh.R.W.1/5. Barkatullah sub-Engineer was examined as R.W.2. The evidence of the parties was thus, closed.

42. Mr. Khalid Khan, Advocate while appearing on behalf of respondents in R.F.A. No.82 of 2003 argued that the land of the respondents/land owners was very valuable. It was situated on the road side adjacent to a Patrol Pump and lands of Hassan Khan, Mst. Hamida Begum and Murad are situated 'at the back of the property of the respondents. The learned Referee Court had fixed Rs.26,000 for the lands of Mst. Hamida Begum and Murad whereas the respondents were deprived of the said price.

43. Mr. Abdul Qadir Khattak, Advocate the learned counsel representing appellants Land Acquisition Collector in R.F.As. Nos.109 of 2002, 72 of 2003, 108 of 2002, 82 of 2003, and respondents in R.F.A. No.21 of 2004 and representing respondents in Cross-Objection Nos. 1 of 2005 and 2 of 2003 argued that paragraph No.13 of the Award the Land Acquisition Collector had classified the land into four categories and fixed their compensation differently keeping in view there nature but the Referee Court without caring for the classification of the land and while adopting formula of its own had enhanced the amount of compensation to Rs.9,847 per Marla in most of the cases, whereas while deciding Objection Petition of Mst. Hamida Begum compensation at the rate of Rs.26,000 per Marla was awarded and while deciding the Objection Petition of Muhammad Siddique etc. a sum of Rs.20,000 per Marla as compensation was fixed. The Award being the same, land acquired from the same Chunk, evidence almost in all the cases being the same, it was not proper for the learned Referee Judge to determine the compensation at different yardstick without giving any cogent reasons for the same. All the cases should, therefore, be remanded to the learned trial Court for re-examination the evidence and deciding the same while applying yardstick.

44. The main question which needs determination by this Court is as to whether the learned Referee Judge has fixed the amount of compensation in accordance with law and dicta laid down by the superior Courts or the same needs further enhancement?

45. As per section 23 of the land Acquisition Act, the following factors are to be kept in mind while fixing compensation: "First, the market value of the land at the date of the publication of the notification under section 4, subsection (1); secondly, the damage sustained by the person interested, by reasons of the taking of a standing crops or trees which may be on the land at the time of Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land, by reasons severing such land from his other land; fourthly; the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earning; fifthly; if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly; the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. (2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition."

46. The august Supreme Court of Pakistan while relying upon the following judgments:-- (1) Province of Punjab through Collector Attock v. Engineer Jamil Ahmad Malik and others 2000 SCMR 870; (2) Nisar Ahmad Khan and others v. Land Acquisition Collector and others PLD 2002 SC 25; (3) Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164; (4) Sadiq and others v. The Deputy Commissioner, East Karachi and another 1988 SCMR 87; (5) Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 3; (6) Mrs. Gunj Khatoon and another v. The Province of Sindh through Secretary, Revenue Department, Karachi and another 1987 SCMR 2084; (7) Fazlur Rehman and others v. General Manager, S.I.D.B. and another PLD 1986 SC 158; and (8) Banaras Khan and others v. Chairman, WAPDA and others PLD 1982 SC 100. enunciated the following principles with regard to consideration of future prospects of land while determining compensation:-- (i) that an entry in the Revenue Record as to the nature of the land may not be conclusive, for example., land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makers it capable of becoming Chahi land; (ii) that while determining the potentials of the land, the use to which the land is capable of being put, ought to be considered; (iii) that the market value of the land is normally to be taken as existing on the date of publication of the notification under section 4(1) of the Act but for determining the same, the prices on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years may be considered including other factors like potential value etc."

47. Thereafter while dealing with the question of fixation of compensation the august Supreme Court of Pakistan while relying on the following judgments laid down, criteria:- (1) Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647 and (2) Province of Punjab through Collector Attock v. Engineer Jamil Ahmad Malik and others 2000 SCMR 8970 and held: (i) The date from which the market value of the land can be estimated is given in Rule 13 of the North-West Frontier Province, Circular No.54 issued presumably under section 55 of the Act. (ii) The method to work out the market value is the practical method of a prudent man laid down in Article 2, Qanun-e-Shahadat Order, 1984 to examine and analyse all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land. (iii) Subsection (1) of section 23 of the Land Acquisition Act provides that in determining the amount of compensation the Court shall take into consideration the market value, loss by reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition. (iv) The best method of determination of the market price of the plots of landowner the acquisition is to 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 sales cover the potential value. (v) The law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining the market value, 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 of its location, neighborhood, potentiality or other benefits. (vi) While determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration. (vii) Consideration should be had to all the potential uses to which the land can be put, as well as all the advantages, present or future, which the land possesses in the hands of the owners. (viii) In determining the question or fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction. (ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser this means that Court has to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist. (x) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the "past sales" should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as Court-witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind that it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in question, because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The "previous sales" of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired. (xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value. (xii) In cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act. (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. (xiv) The phrase `market value of the land' as used in section 23(1) of the Act means `value to the owner' and, therefore, such value must be the basis for determination of compensation. The standard must be not a subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration."

48. The Supreme Court of India has also laid down criteria or factors taken note of as plus and minus factor in case reported as Chimanal Hargovinddas v. Special Land Acquisition Officer, Poona and another AIR 1988 SC 1652 in the following manner: "Plus factors.

(1) Smallness of size. (2) Proximity to a road. (3) Frontage on a road. (4) Nearness to developed area. (5) Regular shape. (6) Level vis-a-vis land under acquisition. (7) Special value for an owner of an adjoining property to whom it may have some very special advantage. Minus factors (1) Largeness of area. (2) Situation in the interior at a distance from the road. (3) Narrow strip of land with very small frontage compared to depth. (4) Lower level requiring the depressed portion to be filled up. (5) Remoteness from developed locality. (6) Some special disadvantageous factor which would deter a purchaser."

49. When examined the impugned judgments and decrees passed by the learned Referee. Court we are of the view that neither the Land Acquisition Collector nor the Referee Court in R.F.As. No.85 of 2002, 89 of 2003 and Cross-Objection No.2 of 2003 has fixed the proper and adequate compensation in accordance with law quoted above. The Collector, Land Acquisition bifurcated the acquired land into two categories i.e. Shah Nehri near Abadi and Shah Nehri away from Abadi. We feel that this categorization was not proper because land measuring 187 Kanals, 10 Marlas had been acquired from one Chunk and how could the land which has been classified away from Abadi be less valuable than the one situated near to Abadi, therefore, the classification of the land into above two categories was not based on any record and was not reasonable. The Referee Court also failed to fix proper and adequate compensation in accordance with law quoted above. We, therefore, tend to enhance the amount of compensation to Rs.14,500 per Marla for reasons:-- Firstly, the acquired land was fit for commercial purposes also. The' existence of Abadi near the acquired land was admitted by Muhammad Ashraf S.E./Director Progress and Coordination WAPDA House Peshawar, who was examined as D.W.2 in (R.F.A. No.85 of 2002) in the following words:-- Urdu Page 1468 Secondly, the acquired land was fit for residential purposes also. The existence of Abadi near the acquired land was admitted by the representative of Acquiring Department during his Court statement. Even otherwise the Land Acquisition Collector also appreciated this position at the time of award. In para. 12 of his Award he admitted:- "It is an admitted fact that Mardan city and Hoti have almost become one city and as such the land in the close proximity of these two cities has become extremely valuable as it is required for residential and commercial buildings etc." Thirdly, the acquired land had been taken from one Chunk, which was near to road. This fact was stated in examination-in -chief by Abdur Rahim Patwari Halqa Hoti, Mardan, when examined as P:W.1 in R.F.A. No.85 of 2002 in the following words:-- "I have visited the spot where the land acquired from the petitioner is situated adjacent to each other and on Pakka Road.." He further admitted in cross-examination:- "The lands of the petitioners are situated in between Pakka Road and the drain in question."

50. The fact that the acquired land was more valuable was also stated by Abdul Samad Patwari Halqa Hoti in his statement when examined as O. W.1 in Cross-Objection 11o.2 of 2003. He placed on file Revenue Record i.e. one year average for the period from 25-5-1994 to 25-5-1995, according to which market value of suit-land is Rs.10,252.32 per Marla. Fourthly, the learned Referee Court while deciding the Objection No.26/4 of 1999 filed by Muhammad Siddique and Munshed Khan decided on 2-10-2002 arising out of the same Award No.9 had fixed a sum of Rs.20,000 per Marla for their acquired land and the Acquiring Department did not file any appeal in the higher forums, thereby accepting the said compensation. Fifthly, the Court below, in order to assess the market value of the acquired land, had appointed Local Commission who, after inspecting the spot, recording statement of the parties, submitted his opinion that compensation at the rate of Rs.14,500 be given to the landowners. It is by now settled law that in appropriate case even criterion of one yearly average price is not of any help and that there is no bar for resorting to appointment of Local Commissioner for inspection of spot and evaluate the land on the consideration of potentialities of land. In Collector Land Acquisition, Peshawar and others v. Rokhan and others PLD 1995 Pesh. 78 a Division Bench of this Court held:-- "It is by now a settled law that in appropriate case even criterion of one yearly average price is not of any help and that there is no bar for resorting to appointment of Local Commissioner for inspection of the spot and evaluate the land on the consideration of the potentialities of the land."

51. Similarly in Muhammad Saeed and 78 others v. Collector Acquisition Land Mansehra and 3 others PLD 1996 Pesh. 22 it was held:-- "No bar existed for resorting to appointment of Local Commissioner for inspection of spot to evaluate land on consideration of potentialities of land. For determining market value of land, classification or nature of land, could be taken as relevant consideration but that was not the whole truth as area could be `Banjar' but its market value could be tremendously high because of its location, neighbourhood, potentiality and other benefits."

52. When the report of the Local Commissioner made evidence recorded by him after spot inspection having gone unrebutted from both sides, trial Court, should have justifiably recorded findings on the strength of that evidence as the same was cogent and sufficient. Reliance in this regard is placed on the following reported judgments:-- (1) Akbar Ali and others v. Province of Punjab and others 1990 CLC 718; (2) Government of N.-W.F.P. through D.C. Bannu and others v. Muhammad Khan alias Ann 1990 CLC 1898; and (3) Muhammad Hussain v. Fauji Foundation Hospital 1989 CLC 1.

53. We, therefore, accept R.F.As. Nos.85 of 2002, 89 of 2003, and Cross-Objection 2 of 2003 and enhance the amount of compensation to Rs.14,500 per Marla. The landowners shall be entitled to 15% compulsory acquisition charges and simple interest at the rate of Rs.6% from the date of taking possession till payment. Resultantly, R.F.As. Nos. 108 of 2002, 109 of 2002, 72 of 2003, 82 of 2003, 94 of 2003, 21 of 2004, 50 of 2004 filed by the Acquiring Department are, therefore, dismissed.

54. So far as R.F.A. No.34 of 2004 is concerned, we tend to maintain the amount of compensation fixed by the Land Acquisition Collector. The argument of the learned counsel for the appellant (in R.F.A. No.34 of 2004) that through registered sale-deeds copies of which are placed on record as Exh. P. W.1/1 to Exh.P.W.1/3 land was purchased for Rs.1,00,000 per Marla has no force for the reasons:-- Firstly, because the lands mentioned in deeds Exh.P.W.1/1 to Exh.P.W.1/3 were sold after issuance of Notification under section 4 of the Land Acquisition Act; and Secondly, small pieces of lands were sold through registered sale-deeds, therefore, the same were rightly not taken into consideration by the learned trial Court.

55. So far as compensation in Cross-Objection No.1 of 2005 is concerned, we feel that the compensation fixed by the Referee Court is inadequate, therefore, we enhance the same to Rs.26,000 for the reasons:-- Firstly, that the acquired land is situated on main Swabi Mardan Road and has great commercial value. This fact was admitted by Abdullah Shah Patwari Halga, who appeared as R.W.1 in Cross-Objection No.1 of 2005. Secondly, it is on record that there are Schools, Petrol Pump, Banglows, and Flour Mills situated adjacent to the acquired property which fact stands admitted by Said Rehman Patwari Halqa (P.W.1), the representative of the Acquiring Department. Thirdly, the Deputy Commissioner, Mardan, on receipt of application by Mst. Hamida Begum had after due enquiry recommended that she be given compensation at the rate of Rs.26,000 per Marla as her land was situated on Mardan Swabi Road and the learned Referee Court while deciding the Objection Petition No.7/4 of 1996 filed by Mst. Hamida Begum had fixed Rs.26,000 per Marla for the acquired property of Mst. Hamida Begum. Since the property acquired in Objection No.1 of 2005 is also situated on the main Swabi Mardan Road contiguous to Khasras Nos.498 and 499 (of Mst. Hamida Begum) and is of the same characteristics, therefore: there is no justification to deprive them of the same compensation for which land of Mst. Hamida Begum has been acquired. Fourthly, some other Acquiring Department had acquired land measuring 2 Kanals for Model Primary School in the year 1993 for which sum of Rs.26,000 was proposed as compensation by the Land Acquiring Authorities. If the same land 'could be assessed for Rs.26,000 per Marla in the year 1993, there is no justification as to why the. same landowners be not given compensation at the same rate in the year 1996, when it is a matter of common knowledge that there is trend of rise of price every where in the country.

56. We, therefore, while maintaining compensation at the rate of Rs.26,000 per Marla in R.F.A. No.34 of 2004 enhance the amount of compensation in Cross-Objection No.1 of 2005 to Rs.26,000 per Marla.

57. So far as the compulsory acquisition charges given in R.F.A. No.34 of 2004 are concerned, we do not find any justification to grant compulsory acquisition charges at the rate of Rs.25%. As per subsection (2) of section 23 of the Land Acquisition Act, which is reproduced hereunder for convenience: "(2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition."

58. The appellant was, therefore, entitled to 15% compulsory acquisition charges. Not only this Court but august Supreme Court of Pakistan in Nisar Ahmad Khan and others v. Land Acquisition Collector Swabi PLD 2002 SC 25 and in Collector Land Acquisition v. Muhammad Saeed 2001 SCMR 1032 hold that under section 23(2) of the Land Acquisition Act the landowners were entitled to 15% compulsory acquisition charges. We, therefore, partially allow R.F.A. No.51 of 2004 and reduce the compulsory acquisition charges from 25 % to 15%. H.B.T./426/P Order accordingly. ***