' JAVED IQBAL, J.---The controversy revolves around award No,187. Accordingly the above captioned appeals are being disposed of by this single Judgment. The facts of the appeal have been mentioned elaborately in the judgment impugned, hence reproduction whereof would be of no use.
2. Mr. Abdul Qadir Khattak, learned Advocate Supreme Court entered appearance on behalf of Government of N.-W.F.P. (appellant) and contended strenuously that the factual and legal aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is next contended that the Award of the Collector was based on award No,187 dated 27-3-1994 whereby the land of village Surkh Dheri was acquired for Murdara drain but no mutation whatsoever was got attested 'during the period 18-10-1988 to 18-10-1989 in village Surkh Dheri. It is further contended that the previous Award was based on agreement executed between WAPDA and the land owners which escaped the notice of learned High Court. It is also contended that the potential value of the land and other relevant factors have not been taken into consideration and compensation enhanced in an arbitrary manner. It is urged with vehemence that, there was no legal justification whatsoever for further enhancing the compensation from Rs,2924 to Rs,3634 as determined by the learned Acquisition Judge after having taken into consideration all the pros and cons of the controversy. It is contended that the documentary evidence which has come on record has been misinterpreted and misconstrued causing serious prejudice against the appellants. It is also pointed out that as a result of enhancement made by means of judgment impugned huge amount is required to be paid from the public exchequer as fair and just compensation could not be determined.
3. Mr. Safeerullah Khan, learned Advocate Supreme Court and Mian Inamul Hag, learned Advocate Supreme Court entered appearance for the respondents and while repudiating the view point as canvassed at bar by the learned Advocate Supreme Court on behalf of appellant supported the judgment impugned for the reasons enumerated therein with the further submission that a just and fair compensation has been determined after having taken into consideration all the relevant factors and in the light of the principles enumerated in section 23 of the Land Acquisition Act, 1894.
4. We have carefully examined the respective contentions as agitated on behalf of the parties, perused the award, judgment of learned Referee Judge as well as the judgment impugned. We have also scanned the entire evidence led by the parties in support of their respective claim. There is no denying the fact that the land in question is situated on Mardan Nowshera road near Sheikh Maltoon Township and therefore, its potential value can be well assessed. It is also an admitted feature of the case that major chunk of the acquired land is 'Shah Nehri'. The learned High Court has made a comparative analysis of Exh.RW1/9 (Ausat Yaksala) and Exh.PW1/1 (sale average of different kinds of land) and the price was determined as Rs,4841/99 per marla which is neither arbitrary nor exorbitant. We are not persuaded to agree with the prime contention of learned Advocate Supreme Court on behalf of appellant that the price as determined in village Surkh Dheri should have been made applicable to the land in question for the simple reason that the mutation regarding said land was got attested on 10-5-1990 which is beyond one year preceding to the date of notification issued pursuant to the provisions enumerated in section 4 of the Land Acquisition Act, 1894 and as such would have no application in so far as the acquisition of the land in question is concerned. A line of distinction is to be drawn between the two lands which could not be done by the learned Referee Judge and the omission has been rectified vide judgment impugned, relevant portion whereof is reproduced herein below for ready reference:-- "9. The mutation in respect of the land vide which certain lands were transferred to the Federal Government in village Surkh Dheri through mutually agreed price between the landowners and the Government shows that total area of 109 kansls was purchased out of which 72 kattals of land was `Banjar Qadeem' and only 37 kanals was Shah Nehri land at a fixed price of Rs,50,000 per kanal. The said mutation was attested on 10-5-1990 which is beyond one year preceding to the date of notification under section 4 of the Land Acquisition Act and was, therefore, having no proper relevancy to the period which was required to be taken into consideration for the purpose of determining the average sale price of the acquired lands. The learned Referee Judge has, therefore, not properly appreciated this aspect of the case in light of the evidence adduced by the parties. Exh.PW1/9 is one year average prepared by the Extra Assistant Settlement Officer, Mardan in which transaction of Shah Nehri lands have been mentioned only and there are also no allegation or proof of containing any, fake transaction and, therefore, the same was required to be considered for the purpose of awarding proper compensation , for the lands acquired in village Surkh Dheri for the reasons that major portion of the property acquired through Award No,187 was first class Shah Nehri and also fit for the purpose of Abadi. The importance given to the sale transactions vide which the Federal Government purchased certain lands, major portion of which was Banjar Qadeem through private negotiations without properly ascertaining the potential nature and its market value and that too having no relevancy to the period Which was required to be considered for determining the average sale price, finds no support from the evidence on record and the Collector as well as the learned Referee Judge both have erred in placing reliance on the same in presence of other documentary proof which clearly justify the award of compensation at the rate of Rs,3634/07 per marla. Similarly, as no sale transaction had taken place in village Khat during the relevant period and as the lands acquired in village Khat were lying adjacent to the lands in village Surkh Dheri, therefore, the landowners of village Khat were also entitled to the same compensation. We are, therefore, of the view that the landowners./appellants before us are entitled to receive compensation for their Shah Nehri land at the rate of Rs,3634/07 per marla as worked out in Exh.RW1/9 on the basis of sale transaction effected during the period 8- 10-1988 to 8-10-1989 for Shah Nehri land in village Surkh Dheri. The rates determined for other kinds of land, however, requires no interference as there is nothing on recorded to show that such rates are also inadequate."
5. A similar proposition was discussed in case 1992 CLC 258 and it was observed as follows:-- "The law dealing with the circumstances to be considered for determination of compensation is contained in sections 23 and 24 of the Act. A bare reading of sections 23 and 24 of the Act indicates that neither the value of the land nor the market value of the land is defined in it. ' In sections 23 and 24 the circumstances are provided for the purpose of computing the compensation.
' The sections 23 and 24 have engaged the attention of the superior judiciary in a number of cases.
It was laid down by the Privy Council in Fraser v. City of Farmerville (L.R. [1917] AC 194) that:- "It is the value to the seller of the property in its actual condition at the time of expropriation with all its existing advantages and with all its possibilities, excluding any advantage due to the carrying out of the scheme for the purpose for which the property is compulsorily acquired."
' The same principle was reaffirmed in R.B. Lala Narsingh Das v. Secretary of State of India 1925 Privy Council 91. This principle was again reaffirmed in Atmaram Bhagwant Ghadgay v. Collector of Nagpur AIR 1929 Privy Council 92, Vyicherla Narayana Ajapatiraju v. Revenue Divisional Officer VI, Gapatam AIR 1939 Privy Council 98 and Malik Abdul Qayyum and others v. Punjab Province and others PLD 1979 Lahore 853. The same golden principles for the purpose of assessing the compensation/market value of the land were followed with enough emphasis in Secretary of State v. Naresh Chandra Bose AIR 1926 Calcutta 1000, Collector of Chingleput District, Saida v. Kadir Mohideem AIR 1926 Madras 732 and Secretary of State v. Chuni Lal and others AIR 1931 Lahore 732.
11. The law relating to compensation has passed through evolutionary development. The first case on this point is Fazalur Rehman and others v. General Manager, SIDB and another PLD 1986 SC 158.
In this case the circumstance of future use of property was also taken into consideration while considering this question, his Lordship Mr. Justice Aslam Riaz Hussain observed as follows:-- "I would therefore, like to emphasize that 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' would not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as. a 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 on relying upon the oral testimony with respect to the market value of the property intended to be acquired, because even while deciding cases involving questions of life and death, the. Court 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 their testimony. It would be useful and even necessary, to examine such witnesses while determining the market price of the land in question, because of the prevalent tendency that in order to save money on the purchase 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 determining the price of the land intended to be acquired."
12. In Nawabzada Muhammad Saeed Khan v. The Collector, Land Acquisition 1990 M LD 1232, a Division Bench of this Court after surveying the entire case law laid down the following principles in respect of assessm ent of a compensation:-- "(1) The, market value or market price means the price property would fetch in the market. The price will be highest price a willing buyer would pay and a willing seller would accept both being fully informed and the property being exposed for a reasonable period of time.
(2) The market value may be different from the price a property can actually be sold at a given time. The market value is that price which it might be expected to bring if offered for sale in a fair market.
(3) In assessing the compensation the potential value i,e, the benefits, advantages arising from the present use and future use are to be take into consideration.
(4) The inflationary trend and depreciation in currency of the country between the date of acquisition under section 4 of the Act and the date of award also should not be totally ignored and be taken into consideration."
6. The market value, potential value and the inflationary trend have been kept in view by the learned High Court and as such there is no question of extra burden on the public exchequer as pressed time and again by the learned Advocate Supreme Court on behalf of appellant.
' The upshot of the above discussion is that the appeals being devoid of merit are dismissed.