Tehsil Municipal Administrator, District Mardan, has filed the instant Regular First Appeal against the judgment and decree dated 30.11.2005 of the learned Senior Civil Judge/Judge Land Acquisition Mardan, through which while accepting the Reference filed by the respondents, the awarded compensation for the land/property acquired was enhanced from Rs, 3,799/- per marla to Rs, 25,000/- per marla, alongwith simple interest at the rate of six percent from the date of taking over the possession till the payment of compensation and also fifteen percent as compulsory acquisition charges.
2. Briefly narrated the facts of the case are that the Government of N.W.F.P. was in need of land measuring 2 kanals, 9 marlas and 3 sarsies comprising Khasra Nos, 188/1 189/1, 190/1 and 96/1, situated in the revenue estate of Moza Bagh-e-Ram, Tehsil and District Mardan, for acquiring department, i,e, Tehsil Municipal Administration Mardan, for a public purpose, namely, for construction of a path from Nissata Road to Gharib Abad Killey near Fazal Haq College Mardan, and in this respect a Notification under Section 4 of the Land Acquisition Act was issued on 5/5/1999. Subsequently, notice under Section 9 of the Act ibid was issued and the Ex-propriated land owners were directed to submit their objections to the acquisition of their lands to which the respondents duly replied.
3. After completion of the proceedings, the Land Acquisition Collector passed his Award Bearing No, 1/4 dated 1/12/1999 and awarded the compensation to the respondents/land owners at the rate of Rs, 3,799/- per marla alongwith fifteen percent compulsory acquisition charges and six percent simple interest under the provisions of Land Acquisition Act, 1894.
4. The respondents/land owners were aggrieved from the Award of the Land Acquisition Collector and. so they filed a Reference under Section 18 of the Land Acquisition Act in which the quantum of compensation awarded by the Land Acquisition Collector was challenged. The Reference was entrusted to the learned Senior Civil Judge/Land Acquisition Judge Mardan who summoned the respondents. The respondents filed detailed written statement and out of the pleading of the parties, the following issues were framed:--
(i) Whether the petitioners have got the cause of action? OPP (ii)Whether the petitioners are estopped to sue by their own conduct? OPD.
(iii)Whether the petition is incompetent in its present form? OPD (iv)Whether the Award has been rightly been announced? OPD (v)What is the market value of the acquired land? OPP (vi)Whether the petitioners are entitled to the decree for enhancement of compensation as prayed for? OPP
(vii) Relief.
5. The parties produced their respective evidence as they wished to adduce and the learned Referee Court, after hearing the learned counsel for the parties and taking into consideration the data available on record, answered the Reference in positive and awarded compensation for the acquired land at the rate of Rs, 25,000/- per-mar/a alongwith fifteen percent compulsory acquisition charges and six percent simple interest from the date of taking over the possession till the payment of entire awarded compensation to the respondents. The Tehsil Municipal Administrator of the erstwhile District Council Mardan being aggrieved has filed this regular first appeal.
6. Counsel for the appellants submitted written arguments, while attorney, namely, Israr Bacha for respondents, argued the case himself.
7. It was submitted by the appellants that the judgment and decree of the learned trial Court is not in accordance with law in so far as the learned trial Court has taken into consideration only two mutations and two other Awards adjacent to the acquired land. Further submitted that the trial Court has ignored the main factors and potential value of the acquired land and thus has wrongly enhanced the compensation. It was also argued that the acquisition for a public purpose, i,e, construction of a path and the land acquired was 'Shah Nehri' as recorded in the revenue record, thus the enhancement of the compensation was not warranted under the circumstances of the case.
8. In rebuttal to that, Israr Bacha, attorney for the respondents submitted that the acquired piece of land was highly potential in value. It was amidst the Abadi and was lying on the main Mardan- Nissata road. It was also argued that the acquired piece of land was commercial and in fact was building site and the learned trial Court has rightly enhanced the compensation of the acquired land.
9. I have gone through the record of the case and the data available on the file was perused.
10.Perusal of the record reveals that Ex.PW.2/2 is the site plan of the acquired piece of land which shows its location. On Northern side is the main Mardan Nissata road. On Southern side is the self- owned property of Muhammad son of Shahzad and towards East is the property of Darwaish while towards, West is situated Fazl-e-Haq College, a renowned Educational Institution and also Gharib Abad road which shows the best location of the acquired tract of land. The learned Land Acquisition Collector has taken into consideration the one year average of 'Shah Nehri' type of land.
In para-6 of the Award, he has admitted that he personally visited the site which is situated on Nissata road near Fazl-e-Haq College Mardan. So the best location and potential value has been admitted by the learned Land Acquisition Collector himself in the impugned award. On the file there is a registered sale deed Bearing No, 505 dated 25.8.1998 on behalf of Doctor Mushtaq in favour of Hazratullah son of Hayatullah, vide which land measuring 2 kanals was sold for a total sale consideration of Rs, twenty-five lacs. Further more, Mutation No, 1861 attested on 21.3.1998 was also brought on record whereby land measuring three marlas was sold by Mst. Mutahira in favour of Mohib Shah for a total sale consideration of Rs, one hundred thousands. The mutation and registered deed are nearer to the time of notification under Section 4 of the Land Acquisition Act.
11.In rebuttal to this evidence, the appellant has not produced any cogent and convincing evidence to dislodge the presumption attached to these important documents. The appellant has only produced Faiz-ur-Rahman, Prosecutor of TMA Mardan and he has only placed on record the impugned award of the learned Land Acquisition Collector and has requested for the dismissal of the reference petition.
12.The law as enunciated by the Superior Court on the subject is very clear that the owners of the acquired land should be paid compensation and not the price because there is difference between compensation and price and while assessing the awarded compensation, the one year average is not the sole criterion. The location, potential value and witness for Abadi of the acquired tract of land should also be taken into consideration. Furthermore, the principles enunciated by the Superior Courts is that the price of a willing purchaser and willing seller should be paid to the Ex- propriated land owners as held in the cases reported 'as Murad Khan through his widow and 13 others Vs. Land Acquisition Collector Peshawar and another (1999 SCMR 1647), Province of Punjab through Collector Attdck Vs. Engr. Jamil Ahmad Malik and others (2000 SCMR 870), Province of Sindh through Collector of District Dadu and others Vs. Ramzan and others (PLD 2004 Supreme Court 512), Government of N.W.F.P. and others Vs. Mst. Jamshed Bibi and another (PLD 1997 Peshawar 19) and Ghulam Ahmad Vs. Govt. ETC. (NLR 2003 Revenue 130).
13.The judgment and decree of the learned referee Court is strictly in accordance with law and in consonance with the evidence available on the record which calls for no interference.
14.In view of the facts and circumstances narrated above, there is no force in the instant appeal which is hereby dismissed with no order as to costs.
Above are the reasons for my short order of even date.