SALIM KHAN, J.--- Vide Award No,139 dated 25-1-1995, the value of Bahir Di Abi land was fixed as Rs,1,02,855.80 per Kanal while the value of Ghair Mazrua kind of land was fixed as Rs,998/60 per Kanal. Out of total 24 Kanals 16 Marlas land in Khasra Nos. 700 and 701/3 and others mentioned in the award, 3 Kanals 17 Marlas land was Ghair Mazrua while the remaining 20 Kanals 19 Marlas land was Bahir Di Abi kind of land. It was on 12-9-1993 that notification under section 4 of the Land Acquisition Act, 1894 was issued vide office No 570. The owners of the land demanded compensation of rupees five lacs to rupees ten lacks per Kanal, which was not sanctioned. It aggrieved certain owners.
2. Qaisar Parvez and others filed objection petition under section 18 of the above mentioned Act.
The learned Senior Civil Judge, after recording the evidence of the parties, in case file No,36/4 instituted on 7-9-1995, dismissed the objection petition of Khalil-ur-Rehman and others (who were petitioners along with Qasiar Parvez) on 22-3-2004. Khalilur Rehman and others have brought R.F.A.
No,30 of 2004 on the grounds mentioned in their appeal.
3. Objecting to the same Award No,139, Suleman and others also filed objection petition. Vide judgment in case file No,34 of 2004, the learned Senior Civil Judge, as Referee Judge, dismissed the objection petition. Hence R.F.A. No,31 of 2004 was filed by the legal representatives of Suleman and Safdar, and by others.
4. Parvez Khan and others objected to the fixation of compensation through the same Award No,139 dated 25-1-2005. Their objection petition was also dismissed by the learned Referee Judge on 22- 3-2004 in ease file No,24/4. They also filed R.F.A. No,32 of 2004.
5. The appeal of Muhammad Bashir and others has also come out of the judgment dated 22-3- 2004 in case File No,33/4 by the Referee Judge Abbottabad, based on the objection petition of Muhammad Bashir and others.
6. Though the case of Kamran Khan appellant relates to the land in the same locality, but it was acquired vide Award No,169/Acq. Dated 30-3-2002. The objection petition was dealt with and the learned Additional District Judge, Abbottabad in Civil Case No,6/4 of 2004, dismissed the petition on 11-3-2005. Hence the appeal by Kamran Khan and three others.
7. As the land in all these cases is situated in the same locality of the Revenue Estate Dhamtaur, Tehsil and District Abbottabad, and almost the same questions of fact and law are involved in these cases, these are taken together.
8. The main questions involved in these cases and discussed by the learned counsel for the parties are whether the report of the Local Commissioner was to be accepted or rejected and what should have been the compensation to be paid to the appellants, keeping in view the potential market value of the suit property. Vide order dated 4-9-2000, the learned Referee Judge had appointed Local Commissioner for inspecting the spot and assessing the value of the suit property. It has clearly been mentioned in the report of the Local Commissioner that the acquired land in all the four objections was at a distance of 2 kilometres from the limits of Cantonment Board Abbottabad and was lying on the Murree Road.
9. The land was acquired on the request of Secretary Board of Intermediate and Secondary Education, Abbottabad for their purposes. The learned Referee Judge had not considered the importance of appointment of a Local Commissioner in the light of the evidence of the parties, the objection of the respondents on the application of the present appellants for such appointment, which was accepted and the order had attained finality, and the non-withdrawal of the order dated 1-9-2000, regarding the appointment of Local Commissioner, at any time. The existence of the said order, without its withdrawal, was to be taken into consideration and a new Commissioner was to be appointed to properly assess the land for its compensation, which has not been done by the learned Referee Judge. He however, rejected the report of the Local Commissioner, mainly on the ground that the report was not supported by documentary evidence, and the average price was already shown by the Patwari Halqa.
10. The statement of Patwari Halqa was available on record, even then, the application of the appellants for appointment of Local Commissioner was accepted. It meant that the learned Referee Judge was satisfied that there was need for further assessing the compensation for the lands in question. The evidence recorded by the Local Commissioner is the evidence on record, and has to be read. It has come on record that the land in question is surrounded by other commercial and residential lands, and it is situated near to the Murree Road, at a distance of 2 kilometres from the limits of Cantonment Board, Abbottabad. It is the potential value of the land, and not its value according to one year average or five years average which is to be taken into consideration while assessing the compensation (not the value) of such a land.
11. The word "potential" means the power or strength of something, its possibility and capability, and its worth in latent or undeveloped state. It is the site, situation, strata, status, suitability and surroundings of a land which are to be kept in view while assessing its compensation. A land may be of no worth for one purpose but it may be the most worthful for another purpose. It is not the kind of the land but the use of the land for a specific purpose which is to be kept in mind for the purpose of such assessm ent of compensation.
12. The land was used for construction of buildings of the Board of Intermediate and Secondary Education, Abbottabad and for its other necessities. It is not always necessary that the value of the surrounding land should be high for higher assessment. A land may or may not be suitable for a specific purpose in its undeveloped state, and that suitability or otherwise fixes its potential value.
The kinds of different portions of the land, in such circumstances, become immaterial, because C the total chunk of land, irrespective of its kinds, is used for a certain purpose for which it is found suitable.
13. The land acquisition proceedings are not a direct transaction between a willing vendor and a willing vendee. It is the will, choice and selection of the Government Authority or Company with regard to a land which stands paramount, and the landowners have no right to hinder such will, choice and selection, except to demand the reasonable compensation. The landowners could expect high value of their lands in the near future due to the location of the land, and due to the development of the areas not far away from their property. The land in question, if not acquired for the purposes of Board of Intermediate and Secondary Education, Abbottabad, could be expected to fetch high price in market due to changing environments in the surrounding areas and rapid structural developments in Abbottabad valley.
14. All that has been said above, with regard to R.F.As. Nos. 30, 31, 32 and 33 of 2004 is applicable to the case in R.F.A. No,28 of 2005 on the ground that the area mentioned in the said case is adjacent to the area acquired vide Award No,139 dated 15-1-1995. It was Award No,169 dated 30-3-2002 that land in the same vicinity was acquired, after about 7 years of the first mentioned award. It is always expected in the circumstances mentioned above that the said area would have fetched a very high price when surrounding area was already developed and, even, the adjacent area was used for the purposes of Board of Intermediate and Secondary Education.
15. The learned counsel for the respondents contended that the suit property in Appeal No,28 mentioned above was a useless land which was acquired only for the purpose of draining the waste water of the already acquired area towards the said land. Such use of the property does not lower the status of the land as it was to be used for a purpose, which if not implemented, would have damaged the proper use and utility of the already acquired area. The acquisition of the land in this case was found essential, and was conducted on the will, choice and selection of the Board itself.
16. As has already been mentioned, the lands in question were not far away from the limits of Cantonment Board, Abbottabad. It has always been considered proper to take into consideration the value of the surrounding areas, even though situated in the adjacent Mauza. It is admitted fact that the lands in question are situated at some distance from the lands of Mauza Nawanshehr. The learned counsel for the appellants relied on a judgment of this court in R.F.A. No,13 of 1998.
Notification under section 4 of Land Acquisition Act, regarding the lands in Mauza Nawanshehr Shumali and Mauza Kakul was issued on 5-11-1990, and Award No,11 dated 26-5-1993 was issued on 26-5-1993. It is worth repetition at this stage that the impugned Award No,139 was issued on 25-1- 1995 while the impugned Award No,169 was issued on 30-3-2002, long after the issue of Award No,1 mentioned above. The Hon'ble Judges dealing with R.F.A. No,13 of 1998 had come to the conclusion that the compensation of the acquired land was to be further enhanced, which was enhanced and was fixed at Rs,7,00,000 (rupees seven lacs) per Kanal, irrespective of the kinds of land, along with 15% compulsory acquisition charges, and 6% simple interest from the date of possession of the land in question till payment of the compensation. This judgment was granted on 18-2-2003.
17. The Division Bench headed by the Honourable Judges of this Court, while dealing with R.F.As. Nos.
8 to 12 of 2001, and cross R.F.As. Nos. 26 to 30 of 2001 held that the judgment/decree in R.F.A. No,13 of 1998 dated 18-9-2003 was a judgment/decree of their Lordships of a Division Bench of this Court, and that D.B. Was bound by the said judgment, unless it was reversed or modified by the honourable Supreme Court, but neither appeal against that judgment had been filed nor it had been reversed or modified till 12-3-2004 (the date of announcement of the latter mentioned judgment). The said former, mentioned judgment therefore, was followed in its letter and spirit. It has not been clarified before us that either the above mentioned judgments/decrees have been modified or reversed by the august Supreme Court of Pakistan, or the order of recovery of the decreed amounts, if paid, has been so passed.
18. The learned counsel for the parties took up the question whether the amount in the case of Kamran Khan and others was to be paid to all the owners recorded in the Jamabandi in the column of ownership, or to the owners recorded in the column of cultivation in their Hissadari possession. Once it is proved that the appellants in that case were in Hissadari possession of the property and the land in their possession was not more than their share in the properties, jointly owned by them along with other joint owners, and in view of a no objection till now by the other co- sharers, it will be in the interest of justice and may avoid any future disputes/litigation among the co-sharers, that the compensation is paid to the appellants who have been in Hissadari possession of the suit property. The legal rights of the joint owners/co-sharers shall, however, remain intact against the appellants for apportionment of their lands and, even, for apportionment of the compensation of the lands in dispute and its recovery from the appellants, but subject to a decree of a Court of competent jurisdiction.
19. The lands in question in the four cases before us have been assessed by the Local Commissioner at Rs,5,00,000 per Kanal for about five Kanals, and the value of the remaining area was fixed as Rs,3,50,000 per Kanal. We have already discussed that it is not the kind of land but the use of land, to which it is to be put, which is to be taken into consideration for the purpose of assessing compensation of lands which are acquired as one block. We, therefore, set aside the impugned order of the learned Referee Judge with regard to the report of the Local Commissioner, and we accept the said report, but with the modification that the value of all types of land out of the suit property is Rs,5,00,000 per Kanal for the purpose of payment of compensation to the appellants.
20. For the said purpose, we accept R.F.As. Nos. 30, 31, 32, 33 of 2004 and 28 of 2005, set aside the impugned judgments/decrees in all the five cases mentioned above, and enhance the compensation of the suit land in all the five cases, irrespective of their kinds, for payment to its respective land owners, at the rate of Rs,5,00,000 (rupees five lacks) per Kanal, with 15% compulsory acquisition charges and 6% interest/profit from the respective dates of taking possessions of the said properties to the date of payment of the compensation.