2021 PLP 32 (YLR)

AHMAD ALI, J.

Through this single judgment, I intend to decide the following appeals as common question of law and facts involved and all these appeals pertain to the same award No.06 dated 07.10.2011: 1) R.F.A. No.64-A of 2017 Land Acquisition Collector E-35 and others v. Mst. Resham Jan 2) R.F.A. No.65-A of 2017 Land Acquisition Collector E-35 and others v. Ghulam Sarwar 3) R.F.A. No.66-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Akbar son of Noor Muhammad 4) R.F.A. No.67-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Riaz 5) R.F.A. No.68-A of 2017 Land Acquisition Collector E-35 and others v. Noor Muhammad 6) R.F.A. No.69-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Ikram and others 7) R.F.A. No.70-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Ashraf 8) R.F.A. No.71-A of 2017 Land Acquisition Collector E-35 and others v. Aurangzeb 9) R.F.A. No.73-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Ayub 10) R.F.A. No.74-A of 2017 Land Acquisition Collector E-35 and others v. Abdul Waheed 11) R.F.A. No.75-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Shamshad 12) R.F.A. No.76-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Basheer 13) R.F.A. No.77-A of 2017 Land Acquisition Collector E-35 and others v. Gul Nawaz and others 14) R.F.A. No.78-A of 2017 Land Acquisition Collector E-35 and others v. Feroz Din 15) R.F.A. No.79-A of 2017 Land Acquisition Collector E-35 and others v. Ahmad Din 16) R.F.A. No.80-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Shafique 17) R.F.A. No.82-A of 2017 Land Acquisition Collector E-35 and others v. Ijaz ul Haq 18) R.F.A. No.83-A of 2017 Land Acquisition Collector E-35 and others v. Abdur Rasheed 19) R.F.A. No.86-A of 2017 Land Acquisition Collector E-35 and others v. Fazal Din 20) R.F.A. No.87-A of 2017 Land Acquisition Collector E-35 and others v. Mst. Nasim Akhtar 21) R.F.A. No.88-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Irshad 22) R.F.A. No.89-A of 2017 Land Acquisition Collector E-35 and others v. Mst. Razia 23) R.F.A. No.90-A of 2017 Land Acquisition Collector E-35 and others v. Gul Zaman 24) R.F.A. No.91-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Akbar son of Fazal Din 25) R.F.A. No.92-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Sarwar 26) R.F.A. No.93-A of 2017 Land Acquisition Collector E-35 and others v. Gulab Khan 27) R.F.A. No.94-A of 2017 Land Acquisition Collector E-35 and others v. Fazal Din son of Muhammad 28) R.F.A. No.95-A of 2017 Land Acquisition Collector E-35 and others v. Fazeelat Rehman 29) R.F.A. No.96-A of 2017 Land Acquisition Collector E-35 and others v. Syed Taimoor Haider Shah 30) R.F.A. No.97-A of 2017 Land Acquisition Collector E-35 and others v. Rehmat Din son of Kala Khan 31) R.F.A. No.98-A of 2017 Land Acquisition Collector E-35 and others v. Khani Zaman 32) R.F.A. No.99-A of 2017 Land Acquisition Collector E-35 and others v. Mst. Rashida Bibi 33) R.F.A. No.100-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Younis son of Fazal Din 34) R.F.A. No.101-A of 2017 Land Acquisition Collector E-35 and others v. Ali Muhammad son of Fazal Din 35) R.F.A. No.102-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Akram son of Ali Afzal 36) R.F.A. No.105-A of 2017 Land Acquisition Collector E-35 and others v. Abdul Hameed son of Roshan Din 37) R.F.A. No.106-A of 2017 Land Acquisition Collector E-35 and others v. Rehmat Din son of Muhammad Din 38) R.F.A. No.107-A of 2017 Land Acquisition Collector E-35 and others v. Mst. Shamas Jan wife of Gul Nawaz 39) R.F.A. No.108-A of 2017 Land Acquisition Collector E-35 and others v. Ahmad Din son of Fazal Din 40) R.F.A. No.109-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Gulzar son of Hayat Muhd. 41) R.F.A. No.110-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Ashraf son of Muhammad 42) R.F.A. No.111-A of 2017 Land Acquisition Collector E-35 and others v. Abdur Rehman son of Fazal Din 43) R.F.A. No.112-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Gulab son of Fazal Din 44) R.F.A. No.113-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Akram son of Kala Khan 45) R.F.A. No.114-A of 2017 Land Acquisition Collector E-35 and others v. Bashir Ahmad son of Roshan Din 46) R.F.A. No.115-A of 2017 Land Acquisition Collector E-35 and others v. Muhammad Banaris

2. A summarize background of all the appeals is that the national Highway authority for the purpose of construction of "Hassan Abdal-Havelian-Mansehra Expressway (E-35) Project" acquired a chunk of land measuring 122 Kanals 18 Marlas of village Ali Khan, Tehsil and District Haripur and fixed the per marla compensation of acquired property in view of the kind of land i.e. Rs.10535.60 for Maira, Rs.5267.80 for Rakhar, Rs.21071.20 for Kund and Rs.2633.90 for Ghair Mazroha. The quantum of compensation was not acceptable to affected land owners and they for the redetermination of the rate of compensation preferred reference petitions under section 18 of the Land Acquisition Act, 1894 to the Collector Land Acquisition and the same were ultimately referred to the Referee Court. The learned Judge Referee Court/Addl. District Judge -II Haripur, processed all the Reference Petitions in accordance with procedure and finally decided the fate of same vide Judgments dated 27.02.2017 whereby the rate of compensation was enhanced according to the rate of compensation as fixed in the Award No.7 pertaining to adjacent village Shah Muhammad i.e. Rs.23,305.67 per marla for Maira, Rs.11652.83 per marla for Rakkar, Rs.34958.50 per Marla for Kund and Rs.5826.41 per marla for Ghair Mazroha land. The Acquiring Department/ NHA is aggrieved of the enhanced rate of compensation and they filed supra captioned appeals to dismiss the Reference Petitions and restore the rate of compensation as awarded by the Collector in the impugned Award.

3. I have heard arguments of learned counsel for parties at length and have gone through the record.

4. A meticulous perusal of the impugned Judgment dated 27.02.2017 reveal that the learned Judge Referee Court, in the absence of any other material considered the date of announcement of award as the date of taking over possession of the land. Under Section 23 of Land Acquisition Act, 1894, the compensation should be according to the market rate of land prevailing at the time of taking over possession of the land. Learned trial court, while recording its findings under issue No.2 was conscious about this legal aspect; nevertheless, while fixing the rate of compensation, the learned Court relied upon the quantum of compensation as determined in the Award No.7 dated 07.10.2011 regarding adjacent Mauza Shah Muhammad by holding that properties in both the villages i.e. Ali Khan (acquired through award No.6) and village Shah Muhammad (acquired through award No.7) are similar in nature but erred a-lot by not considering the fact that the prices in the Award No.7 ibid were also fixed on the basis of Ausat Yaksala prepared by Revenue filed staff and countersigned by District Officer (R&E) Haripur.

5. Although the prices of neighbouring and adjacent lands are substantial factor to determine the market value of an acquired land nevertheless potential prospects, future use of land and commercial/residential activities in the close proximity should also be taken into account. The only way to determine these factors vis- -vis market value prevailing at the time of taking over possession is the appointment of a local commissioner to visit the spot and determine its market value according to its proximity to residential and commercial activities in the area coupled with future prospects and potential of the acquired land. In the case titled Murad Khan through his widow and 13 others v. Land Acquisition, Collector, Peshawar and another (1999 SCMR 1647) the august Supreme Court of Pakistan was pleased to provide following guidelines to be taken into consideration in determining the compensation: (i) The data 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 best method to work out the market value is the practical method of a prudent man laid down in Article 2, Qanun-e-Shahadat, 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 land under the acquisition is to rely on instances of sale of it near about the date of notification under section 4(i) 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, neighbourhood, 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 quantum of 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 and 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.

6. This view of the august Apex Court was further affirmed in the case of Province of Punjab v. Jamil Ahmad Malik (2000 SCMR 870) and Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others (PLD 2009 Supreme Court 16). Besides the august Court in the supra case of Sh. Hassan Ali was further pleased to hold that for the appointment of local commissioner, application by any party is not necessary, nor there is any impediment in appointing a Local Commissioner and to consider his report when the evidence brought on record alone is not capable to resolve the controversy.

7. For what has been discussed above, the impugned Judgments dated 27.02.2017 are hereby set aside and all the cases are remanded back to the learned Judge Referee Court with the direction to: a. appoint a local commissioner to visit the acquired land and determine the market value prevailing at the time of taking over possession of land in view of the status and location of acquired land, proximity to commercial/residential activities, its potentialities and its likelihood of development and improvement in the future. The local commission should consider the evidence and documentary proof, if produced by parties at the time of spot inspection, helpful for determination of the market value in view of the foregoing discussion and submit a self-contained report. b. Invite objections of parties on the report commission and then the fate of report commission should be decided in a comprehensive manner. In case of rejection of report commission, the option of appointing a fresh local commission would be available. c. Determine the adequate rate of compensation in accordance with the provisions of Section 23 of the Land Acquisition Act, 1894 and by taking assistance from the supra quoted guidelines of august apex Court coupled with the report commission. d. The learned Referee Court may allow the parties to bring additional evidence to establish the market value of acquired land at the time of taking over its possession.

8. The learned Referee Court instead of appointing individual local commissioners in all the cases, should appoint a joint local commissioner. Fee commission shall be borne by the parties in equal shares. The learned Referee Court is directed to decide the cases afresh within a period of three months after receiving the case file. All the appeals disposed-off in the above terms. Parties are left to bear their own cost. ZC/175/P Case remanded.