' This judgment will dispose of F.A.O. No.114 of 1998 instituted by Rehman Shah and 6 others against the Collector, Land Acquisition, Indus Highway, Peshawar and 3 others as well as R.F.A. No.16 of 2001 instituted by Hajj Madar Khan and 9 others against the Land Acquisition Collector, Indus Highway and National Highway Authority/Indus Highway Project through the Projected Director, Peshawar.
2. The brief facts are that the Collector, Land Acquisition acquired certain lands vide Award No. 5 dated 6-2-1993 which was modified time by time. The lands in both the above mentioned appeals are covered by the same Award. The learned Referee Court fixed the compensation of land in the case of Rehman Shah etc. At Rs.835 per Marla vide order dated 29-9-1997. The compensation for land in the case of Haji Madar Khan etc. Was, however, fixed at Rs.2,000 per Marla in Reference No.10/4 of 1993 decided on 23-11-2000. Both the sets of appellant are aggrieved of the said order, and judgment/decree. I heard Haji Abdur Raziq, Advocate, for the appellants in F.A.O. No.114 of 1998, Mr. Said Rehman, Advocate, for the appellants in R.F.A. No.16 of 2001 and Mr. Sikandar Rashid, Advocate, for the respondents in both the appeals, and I also perused the respective record.
3. The lands in both the cases are in the same area and have been acquired for the purposes of construction of road/extension of road. As already mentioned above, the per Marla value of land in the case of Rehman Shah and others, vide order dated 29-9-1997, has been fixed at Rs.835, while the per Marla value of land in the case of Haji Madar Khan and others has been enhanced to Rs.2000, vide judgment and decree dated 23-11-2000. In the case of Raza Khan and other v. Same Collector, Land Acquisition in Objection Petition No.7/94 decided on 19-7-2000, per Marla value of the land has been increased to Rs.2,000. In the case of Khan Baz and others v. Collector Land Acquisition, in Objection Petition No.20/4 decided on 1-11-2000, the value of land has been enhanced to Rs.4000 per Marla. While dealing with and disposing of F.R.A. No.112/2000 instituted by the Collector, Land Acquisition, Indus Highway Project, Peshawar against the judgment and decree in the case of Raza Khan and others my learned brother (Mr. Justice Talaat Qayum Qureshi, J.) dismissed the appeal and upheld the judgment and decree of the learned Referee Court dated 11- 7-2000. The observations of my learned brother in the said case, which are relevant for the purposes of these cases, are as under:- "This Court also while deciding R.F.A. No.9/2000 arising out of same Award No.5 dated 6-2-1993, on 4-3-2002 has increased the amount of compensation from Rs.2,000 per Marla to Rs.4,000 per Marla. Respondents' land was of similar nature and was acquired through the same award, but since there is no Cross Objection/Appeal at the moment, therefore, I have not enhanced the amount of compensation by exercising powers vested under Order XLI, Rule 33, C.P.C."
' In the case of Sultan and others v. Land Acquisition Collector and another, my learned brother (Mr. Justice Talaat Qayum Qureshi, J.) held as under:-- "The Collector also failed to appoint any Commission for ascertraining the market value of the land.
I therefore, allow the appeal in hand (R.F.A. No.9/2000) and enhance the amount of compensation from Rs.2,000 to Rs.4,000 per Marla. The land owners/appellants shall be entitled to compulsory acquisition charges at the rate of 15% and simple interest at the rate of 6% from the date of taking over possession till final payment on the enhanced amount."
4. The learned counsel for the respondents had already informed this Court that an appeal in the case of Sultan and others is still pending before the august Supreme Court of Pakistan, but no stay order has been issued for the purposes of the appeals in hand. These appeals are to be dealt with in accordance with their own merits and the law shall have its own course for the purposes of these cases after final decision of the case of Sultan and others.
5. Some of the precedent judgments on the subject are 1985 SCMR 395, Feroz Khan and others v.
Mst. Wazeran Bibi 1987 SCM R 1647 and Mrs. Gunj Khatoon v. The Province of Sindh and others 1987 SCM R 2084, 1988 SCM R 87, 1996 SCM R 1361, 1997 SCM R 1692, 1998 SCM R 2197, 1999 SCMR 747, 2001 SCM R 1032, and 2005 SCM R 394, as well as PLD 1986 SC 158, PLD 1988 SC 32, PLD 1997 SC 1470 and 1999 SCM R 2009, besides the judgments referred in the judgments in R.F.As Nos.9 and 112 of 2000 of Peshawar High Court.
6. In the light, and as a result, of the precedent cases, the following principles, besides others relating to compulsory acquisition of land, are well-settled.
(a) The amount paid to the land owners in consequence of the proceedings under the Land Acquisition Act, 1894, is not the price of the land acquired, rather it is compensation to the land owners from whom the property is taken. A willing seller of the property makes up his mind to sell the property after considering his need, the worth of the amount to be paid to him as consideration as well as the uses of the said amount. On the other hand, the land acquired from the land owners is so acquired without the urgent need of the land owners, without their consent, and without any immediate requirement of the land owners for the amount paid in lieu of transfer of that property.
The amount of compensation, therefore, should never be less than the sale price of the property in the market, but may be more than that in the circumstances of each case.
(b) The compensation is to be paid, keeping in view the date of Notification under section 4 of the Land Acquisition Act, 1894, but the potential value of the property, besides its current market value, is to be kept in view while fixing the amount of compensation.
(c) The compensation for agricultural lands which have Commercial or residential potentiality is generally more than the value of the agricultural lands used for only agricultural purposes. The value of such lands, even if Banjar-eQadeem or Ghair Mumkin, may be more than Shah Nehri or Nal Chahi kinds of land, if such lands are Usable for residential or commercial purposes.
(d) When the value of a certain kind of land under the same Award is enhanced by the Superior Courts in a certain case of one or more land owners, the land owners of nearby lands of the same kind stand entitled to the same amount of compensation for their lands acquired under the same Award, irrespective of the fact that they were not parties to the said case or they had not submitted Objection Petitions/References/Appeals regarding their lands.
7. On going through the contents, and the referred judgments in R.F.As Nos.9 and 112 of 2000, as well as the record of two appeals in hand, I do not find any material on record which could have led me to differentiate these appeals from those mentioned appeals. On facts, these two appeals are regarding the same kind of lands in the same area and under the same Award. These lands have their commercial and residential value due to their proximity to the road, and the nearby residential areas. I, therefore, find myself in full agreement with my learned brother (Mr. Justice Talaat Qayum Qureshi, J.) in the conclusions arrived at in the referred R.F.As..
8. Keeping the above principles in view, as well as the judgments in the precedent cases, I have come to the conclusion that both the sets of appellants in F.A.O. No.114/1998 and R.F.A. No.16 of 2001 are entitled to the enhancement of compensation of their lands. I, therefore, enhance the amount of compensation for the lands of Haji Madar Khan and others in R.P.A. No.16 of 2001 from Rs.2;000 per Marla to Rs.4,000 per Marla with compulsory acquisition charges at the rate of 15 per cent, and simple interest at the rate of 6 per cent on the enhanced amount of compensation, from the date of taking of possession of their lands by the respondents till the final payment of amount of compensation to them. I also enhance the rate of compensation for the lands of Rehman Shah and others in F.A.O. No.114 of 1998 from Rs.835 per Marla to Rs.4,000 per Marla with compulsory acquisition charges at the rate of 15 per cent, and simple interest at the rate of 6 per cent. On the enhanced amount of compensation, from the date of taking of possession of their lands by the respondents till the final payment of the amount of compensation to them. Parties are left to bear their own costs.