' IJAZ-UL-HASSAN KHAN, J.--- The present appeal instituted under section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) is directed against the judgment and decree,. Dated 22-1-2002 passed by learned Senior Civil Judge/Referee Court, Peshawar, whereby Reference filed by Muhammad Sharif appellant under section 18 of the Act, seeking enhancement of compensation amount, relating to his land, was dismissed and the value of land determined by acquiring Department was maintained.
2. Concisely stated facts of the case are, that land, bearing Khasra Nos.111/1, 112/1. 113/1 114/1, 109/1 and 110/1, measuring 53 Kanals, 2 Marlas, situated in Mauza Yaseen Abad Peshawar owned by the appellant was acquired by the National Highway Authority, Islamabad, respondent No,1, on the basis of Award No,86. Dated 26-10-2000 for the construction of "Islamabad - Peshawar Motorway Project". The Revenue Field Staff of Peshawar submitted average of sale price as per "Ausat Yaksala" at Rs,12,000 per Marla based on two mutations each of five Marlas. The price found high was not considered and compensation given to the owners of land at the rate of Rs,2,409 per Marla in the adjacent village of Tember Pura, Peshawar, was made basis of compensation.
3. The appellant feeling dissatisfied with the above price of the land preferred a Reference under section 18 of the Act before the Senior Civil Judge, Peshawar, which was strongly opposed and the assessm ent was claimed to have been made fairly and properly in the light of "Ausat Yaksala". In view of the pleadings of the parties following issues were framed:-- 41) Whether the petitioners have got a cause of action?
(2) Whether the compensation was not properly assessed?
(3) Whether the petitioner is entitled to enhancement of compensation?
(4) Relief.
4. In evidence, Hamid Sharif son of Muhammad Sharif appellant appeared as P.W.2 and he produced Fazli Rabbi, Patwari Halqa Yaseen Abad, Peshawar as P.W.1. In rebuttal the solitary statement of Tilawat Khan, Patwari N.H.A. Was recorded as R.W.1 on behalf of respondents.
5. Upon consideration of the evidence adduced by the parties, learned trial Judge decided Issues Nos.2 and 3 together and dismissed the Reference holding that the awarded compensation was fair and reasonable.
6. Sheikh Wazir Muhammad, Advocate, for the appellant contended, inter alia, that learned trial Court has failed to give weight to the evidence produced on behalf of appellant; that the decision was based on misreading of evidence; that it was a result of perverse appreciation of evidence and that the Court below had not taken into account evidence of the appellant in its proper and true context and in the light of criteria laid down by the superior Courts. He also submitted that the impugned judgment and decree is in contravention of statutory provision of section 23 of the Act so much so that even one year average of the land acquired, prepared from the Revenue 'Record has been ignored and kept out of consideration. He placed reliance on Arbab Fazlur Rehman Khan and others v. Collector, Acquisition (Industries) (W.P.) Now N.-W.F.P. Peshawar 1986 SCM R 1118, Fazalur Rahman and others v. General Manager, S.I.D.B. And another PLD 1986 SC 158 and Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagaopatam AIR 1939 PC 98. The learned counsel also placed on record copy of a judgment, dated 13-9-2002 recorded by Senior Civil Judge/Judge Land Acquisition, Peshawar (Muhammad Akbar Khan son of Haji Khan Shinwari, petitioner v. Land Acquisition Collector, Peshawar and 8 others. Respondents) whereby 138 Kanals, 11 Marlas of land at Sardar Garhi, District Peshawar was acquired for the same purpose i.e, construction of "Islamabad -Peshawar Motorway Project" and an amount of Rs,15,744 per Marla was determined as market price of the acquired land. The learned counsel complained that statement of Tilawat Khan, Patwari N.H.A. (R.W.1) was relied upon in the said case whereas his statement was totally discarded in the case of appellant without any justifiable reason.
7. Mr. Sikandar Aziz, Advocate, appearing on behalf of respondents, controverted the arguments of learned counsel for appellant and reiterated that the market price of land in question was properly assessed and adequately determined.
8. We have heard at length, the arguments of learned counsel for the parties with reference to the material on the file and the case-law cited at the bar.
9. In order to determine the amount of compensation to the persons who are deprived of an interest in lands the market value has to be assessed by taking into consideration principles laid down under section 23 of the Act. It is well-settled that under this section the owner is entitled to charge the price of his land fixed with reference to the probable use which gives him the best return and not merely in accordance with its present use and disposition. The compensation must be determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser. The land is not to be valued merely in accordance with the use to which it is being put, but also by reference to the uses to which it was reasonably capable of being put in the future. The method of valuation to be adopted in ascertaining the market value of the land on the date of the notification under section 4(1) are (i) opinion of experts; (ii) the price paid within a reasonable time in bona fide transaction of purchase of the land acquired or the lands adjacent to the land acquired and possessing similar advantage; (iii) a number of years purchase of the actual or immediately prospective profits of the land acquired. These factors, however, do not preclude the Court from taking any other special circumstances into consideration, the requirement being always to arrive as near as possible at an estimate of the market value. In arriving at a reasonable correct market value, it may be necessary to take even two or all of those methods into account inasmuch as the exact valuation is not always possible as no two lands may be the same either in respect of the situation or the extent of the potentiality nor is it possible in all cases to have reliable material from which that valuation can be actually determined. The market value at the date of acquisition has to be ascertained. Ascertainment of market value means that the valuation must be made on the basis that the property was put up for sale in the open market at the date of acquisition. That would mean what has to be ascertained is the price which a willing purchaser would pay on that date. It needs no reiteration that while determining .The market value of the land or fair compensation thereof, reference is to be made to the present use and also to the use to which the land can be put in near future. In the case of Pakistan Burma Shell Limited v.
Province of N.-W.F.P. And 3 others 1993 SCM R 1700 the august Supreme Court of Pakistan observed:- - ' "We are not persuaded to strike off the award on the rectitude of these submissions. Section 23 makes mention of various matters to be considered in determining the compensation. One of such factors enumerated therein is that the date relevant for determination of market value is the date of the notification under section 4. Not unoften the market value has been described as what a willing purchaser would pay to the willing seller. It may be observed that in assessing the market value of the land, its location, potentiality and the price evidenced by the transaction of similar land at the time of notification are the factors to be kept in view. One year's average of the sales taking place before the publication of the notification under section 4 of similar land is merely one of the modes for ascertaining the market value and is not an absolute yardstick for assessment. "
10. It may be seen that an amount of Rs,2,409 per Marla has been evaluated the market price of the land in question and the land in the adjacent village of Tember Pura, Peshawar. The land owners of these villages have been treated alike. The "Aust Yaksala" prepared in the case, having been found extremely high, has not been taken into consideration for reasons mentioned therein. It may not be out of place to mention here that 138 Kanals, 11 Marlas of land was acquired through Award No,75, dated 9-8-2000 in village Sardar Garhi at the rate of Rs,10,000 per Marla which was subsequently enhanced to Rs,15,744 in a reference filed by the owners on 17-11-2000, titled Muhammad Jabbar Khan petitioner v. ' Land Acquisition Collector and eight others respondents. The average prepared in this case by Tilawat Khan, Patwari was made basis of the decision whereas the same has been ignored in the present case. Learned counsel for the appellant has contended with justification that evidence in this case has not been properly assessed and scrutinized which hhs resulted in manifest injustice. We have it in the statement of Hamid Sharif (P.W.2) that the acquired property is situated near metalled road and it is commercial in nature and potentiality of the property has been completely ignored. Fazli Rabbi (P.W.1) Patwari Halqa Yaseen Abad and Tilawat Khan (R.W.1)
Patwari N.H.A., have also substantiated the assertion of P.W,2 and clearly stated that the land in question has potential value and it is situated near the metalled road. There is nothing on file to "rebut the claim of the appellant. It is not denied that due to inclusion of acquired land under the metalled road, the value of adjacent land will increase considerably than average value of one year sale price of land located in the vicinity. All these factors appear to have escaped notice of the Collector Acquisition and learned Referee Judge while considering the valuation of the property in question.
11. Having considered the matter from all angles and keeping in view the considerations prevailing with the quarter concerned for disbelieving "Aust Yaksala" prepared in respect of land acquired we are of the view that the Acquisition Collector overlooked the potential, value of the acquired land and fixed its price arbitrarily in disregard of the well-established principles laid down by the superior Courts for ascertaining the market value of the lands acquired. We also find that the learned Referee Judge recorded the impugned judgment and decree in a mechanical manner without application of mind which has materially prejudiced the interest of the appellant.
12. In the result and for the foregoing reasons we accept the appeal, set aside the impugned judgment and decree and enhance the market price of land in question from Rs,2,409 per Marla to Rs,5,000 per Marla. The appellant shall also be entitled to 15% compulsory acquisition charges and 6% simple interest on the enhanced amount. We make no order as to costs.