1. Javed Iqbal, J.--The above captioned appeals emanate from the same judgment and similar questions of law and facts are involved, hence the same are being disposed of by this common judgment.
2. Precisely stated the facts of the case are that the Land Acquisition Collector acquired land measuring 99 Kanals 8 Marlas for construction of Narai Drain in Mardan SCARP vide Award No.260 dated 22.3.94 situated at Mauza Saro Shah Tehsil Takht Bhai District Mardan. He fixed Rs.1022/- per marla for Shah Nehri kind of land and Rs.255.50 for Ghair Mumkin kind of land. 15% compulsory acquisition charges and simple interest at the rate of 6% was also given to the land owners. Abbas Sarfaraz whose land measuring 15 Kanals 4 Marlas was acquired filed Objection Petition No 9/4, whereas Sarfaraz Khan, whose land measuring 18 Kanals was acquired filed Objection Petition No. 10/4 of 1994. The above mentioned Objection Petitions were referred to the learned Referee Court for determination. The learned Referee Judge after framing issues, recording pro and contra evidence of the parties enhanced the amount of compensation to Its. 1643/- per marla for Shah Nehri and Rs.600/- for Ghair Mumkin kind of land. 15% compulsory acquisition charges and simple interest at the rate of 6% from the date of taking over possession till final payment was also granted on the enhanced amount vide judgment and decree dated 25.3.96." Being aggrieved the Chairman WAPDA preferred an appeal and simultaneously land owners have also filed appeals before the Peshawar High Court, Peshawar, Which were disposed of by means of judgment impugned whereby .the appeals preferred on behalf of Chairman WAPDA have been dismissed.
3. Heard Mr. Abdul Qadir Khattak, learned ASC at length who mainly argued that the legal and factual aspects of the controversy have not been appreciated in its true perspective and the compensation amount has been enhanced by the learned Referee Judge at first instance which was further enhanced by the learned Single Judge of Peshawar High Court in chambers without having gone. through the potentials of the land in question and besides that the enhancement of compensation amount is based on conjectural presumptions. It is next contended that the learned Single Judge in chambers has heavily relied on the award Bearing No. 196 dated 21.8.91 which had no nexus whatsoever with the land in question. It is argued that the Courts below have not dilated upon the controversy with diligent application of mind but on the contrary toed the award Bearing No. 196 dated 21.8.91 without any rhyme and reason resulting in serious Miscarriage of justice. It is next argued that some local commissioner could have been conveniently appointed to determine the prevalent price of the land in question which could not be done for the reasons best known to the learned Referee Judge. It is urged emphatically that the land in question had no potential value and it was neither suitable for construction nor it could have been used for any commercial or residential purposes.
4. We have carefully examined the contentions as canvassed at bar on behalf of Chairman WAPDA (appellant), examined the entire record and perused the judgment of learned Referee Judge as well as the judgment impugned. The pivotal question which needs determination would he as to whether the compensation has been determined and enhanced in accordance with the provisions as contained in Section 23 of the Land Acquisition Act, 1894 and commercial/potential value of the land in question has been kept in view or otherwise? The question as to how the price of acquired land is to be determined, has been examined and answered by this Court in various cases in a comprehensive manner and guideline has been provided in case Province of Punjab v. Jamil Ahmad Malik (2000 SCM R 870), which is reproduced herein below for ready reference:--
10. The cardinal principle for ascertaining the value of the land under acquisition is to find out the price acceptable to a willing seller from a willing purchaser. Attending this principle, we notice that the rate of compensation given by the Referee Court being much-less to that of the claim made. y the owners was not exorbitant arid, therefore, taking the.. relevant factors into consideration, the rate of compensation awarded by the Referee Court was fair Undoubtedly, there is no rule that, a post notification transaction of sale of similar land cannot be looked into to find out the correct value of the land, but it is seen that after publication of the notification under Section 4 of the Land Acquisition Act, 1894, the price of the land in the locality. .is affected and, therefore, to place reliance on such a transaction of sale will not be a proper guidance for the determination of the market value of the acquired land. However, in the present case, the collector or the Referee Court did not include any such transaction for the purpose of calculation of the market value of the land and, therefore, the determination of the market value of land acquired by the .Referee Court on the basis of the documentary evidence of the mutations of sale alongwith the other factors was supported by cogent reasons."
2. 14.Reference may also be made to Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. and 3 others (1993 SCM R 1700) and Haji Muhammad Yaqoob and another v. Collector, Land Acquisition/Additional Deputy Commissioner, Peshawar (1997 SCM R 1670).
3. 'In the case of Pakistan Burma Shell (supra) this Court observed as under:- "6. We are not pursuaded 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 that 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."
4. 15.The above principle, was also quoted with approval in the case of Haji Muhammad Yaqoob (supra) wherein it was observed that it is well settled that one year's average sale price of the land in the vicinity preceding the date of notification under Section 4 of the Act, is only one of the relevant factors for consideration in determining the market value of the land but it alone cannot be adopted as the basis for assessme nt of market value, if there is other evidence available on record to establish the potential value of acquired land at a higher rate.
5. 16.In the case of Province of Punjab through Collector, Bahawalpur and others v. Col. Abdul Majeed and others (1997 SCM R 1692), the following principles of law were laid down for assessing the future prospects of the land acquired under the Land Acquisition Act, 1894 in terms of Section 23: (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, makes it capable for becoming Chahi land.
6. (ii)That while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered.
7. (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 price on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years back may be considered including other factors like potential value etc. 17.The above principles were also consistently followed in Abdur Rauf Khan v. Land Acquisition Collector (1991 SCM R 2164), Gunj Khatoon v. Province of Sindh (1987 SCM R 2084), Fazalur Rahman v.
8. Collector (PLD 1988 SC 32) and Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. (1993 SCM R 1700).
9. 18.Reference may also be made to Murad Khan through' his widow and 13 others v. Land Acquisition Collector, Peshawar and another (1999 SCM R 1647), wherein one of us (Muhammad Bashir Jehangiri, J.) had exhaustively laid down the criteria for determination, of fair compensation.
10. Relevant portion of the report reads thus:-- "The schedule of average price for four years or for that matter even of one year are not the only criterion for determining the amount compensation but the 'other material' brought on the file is quite relevant to determine the correct amount of compensation for the acquired land. Section 23 of the Land Acquisition Act, 1894 lays down, by way of criterion, that `market value' of land on the date of publication of notification under Section 4 of the said Act would be the amount of compensation. The expression 'market value' has not been defined in the Act. , 'Merely one year average price of the land in the same vicinity or the classification thereof is not exhaustive in itself but there are other considerations enumerated in the law which would also be relevant for determining the market value for fair compensation to be awarded to an owner whose land has been compulsorily acquired.
11. 'It is wrong to look for the classification alone of the land for the purpose of determination of the fair compensation.
12. 'The following matters are to be taken into consideration its determining the amount of 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.
13. (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.
14. (iii)Sub-section (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 publicaiton 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.
15. (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(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.
16. (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 p; 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.
17. (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.
18. (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.
19. (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 levies, 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.
20. (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."
5. We have carefully examined the above captioned appeals On the touchstone of the criterion as laid down in various cases and mentioned herein above. There is no denying the fact that the land in similar vicinity was acquired by awarding Rs.2400/- per marla as compensation for the remodelling of Murdara Drain. The learned ASC was asked pointedly that as to how the Award No, 196 dated 21.8.91 (Ex.P.W.1/1) has wrongly been relied upon by the learned single Judge in chambers while enhancing the compensation but neither any satisfactory answer could be given nor any distinction could be made. The respondents in our considered view have produced worthy of credence documentary evidence such as Jamabandi for the year 19911992 (Ex.O.W.1/1) one year's average, commonly known as Ost yak sala for the period 31.3.92 to 31.3.93 (Ex.O.W.1/2). One year's average for the period 26.10.92 to 26.10.93 was also got exhibited as (Ex.O.W.1/3). Besides that Aks Shajara Kishtwar was also produced (Ex.O.W. 1/4). The dociimentary evidence could not be rebutted by the appellant by producing any worthy of credence evidence. The question relating to potentials of land, its market and commercial value being questions of facts have rightly been determined by the learned single Judge in chambers vide judgment impugned which being well based does not warrant interference. The appeals being devoid of merit are dismissed.