MAULVI ANWARUL HAQ, J.- Land measuring 7 kanals, 16 marlas comprising Khasra No. 526 situated in village Jatial, District Attock belonging to the appellant was acquired by the Provincial Government for extension of Domestic Colony MRF PAC Kamra. Notification under Section 4 of the Land Acquisition Act, 1894 was published in the Punjab Gazette on 26-10-1988. After observing other formalities an award was announced by the Land Acquisition Collector Attock, on 26.9.1991. The compensation for land located in Jatial was awarded at the rate of Rs 50,000/-per kanal with 15% compulsory acquisition charges. The appellant did not accept the award and filed an application under Section 18 of the Land Acquisition, 1894. The Land Acquisition Collector referred the same to the learned Senior Civil Judge, Attock, where it was registered as Reference No. 18/11 of 1992. it was stated that the land is located at G. T. Road and land in vicinity is being sold at the rate of Rs 2 lacs per kanal. The respondents filed reply objecting that the application is barred by the. Now we find that it was stated in this reply that earlier land was accrued in the vicinity and after development effected by the Federal Government the value of the adjacent land was enhanced manifold.
However, the allegation that the land is located on the berm of G.T. Road was denied. The learned Senior Civil Judge, Attock consolidated the said references with other references and conducted the proceedings in Reference No. 4/II of 1992. He framed following issues:
1. Whether the petitioners of all the references received compensation without protest?
2. Whether the references are bad for non- joining of necessary parties?
3. Whether the objectors of all the references are estopped by their act and conduct to bring these reference?
4. Whether all the references are barred by limitation?
5. Whether all the petitioners have no case of action and locus standi to bring these references?
6. Whether the respondents are entitled to special costs u/s 35-A CPC, if so, to what extent?
7. Whether the lands of the petitioners of all the reference have been undervalued and underestimated by the L.A.C?
8. Whether the impugned Award No. A- 64/514/AC/LAC dated 26.9.1991 is liable to be set aside for the reasons enumerated in the reference petitions, if so, then what would be the formula for the compensation?
Evidence of the parties were recorded. Vide award and decree dated 4-12-1995 learned Trial Court decided issues No. 1, 2, 4, and 5 against the respondents. Issues No. 3, 5, 7 and 8 were taken up together and were answered against the appellant with the conclusion that the appellant and other petitioners had failed to prove that market value of the suit property was not properly assessed. The application was accordingly dismissed.
2. Learned counsel for the appellant contends that the reading of the impugned award gives the impression that the learned Referee Court had taken upon itself not to consider any piece of evidence supporting the appellant at all. According to the learned counsel it remained un rebutted on record that the land was located on the berm of G.T.Road and was surrounded by residential and commercial areas and was within Cantonment Limits of Kamra. Learned Federal Counsel on the other hand, supports the impugned award and decree of the learned Referee Court.
3. We have examined the Trial Court records with the assistance of the learned counsel and learned Law Officer. Now we find that regarding the location of the land 'Aks Shajra' Exh. P 2 was produced by the appellant. According to Register Haqdaran Zamin Exh. P.1 the appellant was exclusive owner of land measuring 7 kanals 16 marlas comprising Khasra No. 526. According to Exh.
P.2 the said Khasra is located towards South East of the G.T.Road on its berm. AW -1 Farhat Ali Patwari, Halqa Patwari Jatial is stated that Khasra No. 526 is located on G.T Road. Towards North is G.T. Road and towards South is residential Colony of Kamra. The Cantonment market is located 300 feet towards West of the land. Usmania Hotel is located further West of the said market. There is yet another market owned by some individuals. There is a school in Colony. Kamra has also a club and playing ground. Presently a Petrol Pump stands installed on the said Khasra number. Another witness Khalid Mehmood also explained location of the acquired land. Now no evidence was led in rebuttal to state location of the land otherwise. On the other hand, he find that the very document i.e. Exh. R 8 on which implicit reliance has been placed by the learned Referee Court narrates that acquired area is commercial area located on the berm of Road and market value of the adjacent area is Rs. 1 lac. Per kanal. This document is attested by the Land Acquisition Collector, Attock and was produced in evidence by the respondents themselves.
4. Then we find that a Local Commissioner was appointed by the learned Trial Court who reported location of the land in consonance with said witnesses produced by the appellant. According to this report the market value was not less than 51/2 lacs per kanal. Of course, this report was objected to by the respondents which objection was resisted. Learned Trial Court instead of examining Local Commissioner as a Court witness enabling the respondents to cross-examine him and thereafter to dispose of objections, summarily rejected the report on the simple ground that since Local Commissioner visited the site several years after acquisition it cannot be said that the existing position was the same at the the of issuance of preliminary notification. However, said observations of the learned Triaf Court is not supported by anything on the record.
5. Having thus examined the record, we do agree with the learned counsel that somehow or the other learned Trial Court opted to completely close its eyes to the evidence on record and failed to read the same. Needless to state that nature of the land or its classification in the revenue record is hardly the criteria. On the other hand, the consistent view of the superior Judiciary of the country is that potential value of the land is to be seen with reference to its location and vicinity and then the compensation is to be determined on the principle what a willing buyer should pay for the land to a willing purchaser, it has oft been repeated by the superior Courts that the landowner is entitled to be paid gold for gold and not copper for gold. The impugned judgment clearly reflects that the said principle had not been kept in view by the learned Trial Court while passing the impugned award and decree. This RFA is according allowed. The impugned award and decree dated 4-12- 1995 of learned Senior Civil Judge, Attock, is set aside. The result would be that Reference No. 18/11 of 1992 filed by the appellant shall be deemed to be pending in the Court of learned Senior Civil Judge, Attock, where the parties shall appear on 22-I-2004. Trial Court records alongwith a copy of this judgment be immediately remitted to the learned Senior Civil Judge, who shall in the first instance given opportunity to the respondents to summon the Local Commissioner for cross- examination as a Court witness. Similarly opportunity to be given to the appellant as well and thereafter to dispose of objection filed by the respondents. After completing this exercise the learned Senior Civil Judge shall read the entire evidence on record and proceed to decide issue No. 7 and 8 afresh and consequently the reference petition. Needless to state that in view of unchallenged findings on issue No. 1, the issue No. 3 does not arise at all. Non- filing of claim in response to a notice under Section 9 does not at all debar a land owner from claiming reference.
So tar as issue No. 5 is concerned admittedly land of the appellant has been acquired by the respondents and they have not accepted the award. Besides reference has been made by the Land Acquisition Collector. No question of absence or otherwise of cause of action arise.
6. No order as to costs.