Govt. of NWFP through Collector District Mardan and others have filed this regular first appeal against the judgment and decree of the learned Senior Civil Judge/Judge Land Acquisition Mardan dated 14.2.2002 in Reference Petition No, 6/4 of 1997 through which the learned Referee Court enhanced the compensation of the acquired land of the respondents and fixed the same at the rate of Rs,3500/- per marla with 15% compulsory acquisition charges and 6% simple interest.
2. Briefly narrated the facts of the case are that Govt. of &WFP was in need of acquiring land for the remodeling of Murdara Drain for the acquiring Department namely WAPDA Scarp through Project Director Mardan, Appellant No, 2, (now Swabi Scarp) comprising Khasra No, 1008/1, Khata No, 100/182 situated in the revenue estate of Takkar, Tehsil Takht Bhai, District Mardan as per Jamabandi for the year 1991 92 and acquired it vide impugned Award No, 35 dated 19.6.1997. The affected area from the expropriated land owners-respondents is four kanals. The preliminary Notification under Section 4 of the Land Acquisition Act was issued on 01.4.1996 Bearing No, 342/DK/HVC. The land owners being aggrieved from the Award of the learned Land Acquisition Collector filed a Reference Petition under Section 18 of the Land Acquisition Act, inter-alia, on the grounds that the land acquired from the respondents was a valuable tract of land, was situated on the main Takht Bhai-Takkar road, was amidst the Abadi and the price per marla under no circumstances was less than Rs, 15,000/-. It was also averred that the learned Land Acquisition Collector has awarded a meager compensation i,e, Rs, 846/26 per marla which Award has not been accepted by the respondents-land owners.
3. On receipt of the Reference Petition, the learned Land Acquisition Judge summoned the appellants who submitted a detailed written statement and out of the pleadings of the parties, the following issues were framed:--
1. Whether the petitioner has got a cause of action?
2. Whether the petitioners are estopped from suing?
3. Whether the petition of the petitioners is not within time?
4. Whether the petition of the petitioners is bad for non-joinder of necessary parties?
5. Whether the petition of the petitioners is bad for misjoinder of necessary parties?
6. Whether the Award was prepared with the help of revenue record?
7. Whether the price was fixed according to the price of the surrounding land and mutations?
8. Whether the acquired land has been acquired for the interest of nation?
9. Whether the reference petition is not according to law?
10. Whether this Court has go no jurisdiction?
11. Whether the Collector has fixed the price of the suit land according to the market value?
12. Whether the petitioners are entitled for the enhancement?
13. Relief.
The parties produced their respective evidence as they wished to adduce and the learned Referee Court, after hearing the counsel for the parties and perusing the data available on the record, enhanced the compensation to Rs, 3500/- per marla. Now the Govt. of NWFP and others appellants being aggrieved and dissatisfied from the judgment of the learned Referee Court have filed the instant regular first appeal.
4. Mr. Abdul Qadir Khattak, learned counsel for the appellants submitted that the preliminary Notification in this case was issued on 01.4.1996 and the learned Referee Court was duty bound to have considered the one year average commencing from 01.4.1995 to 01.4.1996 regarding the Shah Nehri type of land as the acquired land was entered in the revenue record, as Shah Nehri. It was also argued that the learned Land Acquisition Collector has rightly taken into consideration the one year average of Shah Nehri type of land in fixing the compensation at the rate of Rs,864.26 per marla. The learned Referee Court was not justified in enhancing the compensation to Rs,3500/- per marla.
5. It was also argued that there was no basis or evidence available on the record warrant the enhancement of compensation and the land owners-respondents were not entitled to the enhanced compensation.
6. On the other hand, Mr. Fazal-ur-Rehman Khan, learned counsel appearing on behalf of the expropriated land owners-respondents submitted that the acquired piece of land was situated on the main Takht Bhai-Takkar road, was amidst the Abadi and the same was commercial in nature besides being highly potential in value and the learned Referee Court has rightly enhanced the compensation to Rs, 3500/- per marla alongwith 15% compulsory acquisition charges and 6% simple interest from the date of taking over possession till the final payment of the compensation.
7. I have gone through the record of the case and have considered the respective contentions of the learned counsel for the parties.
8. Perusal of the record reveals that the preliminary notification under Section 4 of the Land Acquisition Act was issued in this case on 01.4.1996, so, naturally the price/compensation prevailing at the target date i,e, one year prior to the notification ibid will be paid to the expropriated land owners. In this respect, the respondents-land owners have produced Fazal-ur-Rehman, Patwari Halqa Takkar, District Mardan as PW-1 who has placed on record one year average statement of the entire village Takkar (Ex.P.W.1/3). This one year average is from 13.7.1997 to 14.7.1998 and the price per marla determined through this average comes to be Rs, 16942/67. Similarly, one year average from 2.4.1995 to 30.4.1996 (Ex.C.W.1/1) was also placed on record and according to this average the price per marls comes to be Rs,3199/78. CW-1 has also prepared the one year average commencing from 2.4.1995 to 1.4.1996 regarding the sale of various tracts of land which is Ex.C.W.1/2 and according to which the price per marla comes to be Rs,8020/76. The two averages Ex.C.W.1/1 and Ex.C.W.1/2 are in close proximity to an year prior to the publication of notification under Section 4 of the Land Acquisition Act. PW-1 has also placed on record the site-plan of the acquired tract of land Ex.P.W.1/6 and the Aks Shajra Kistwar Ex.P.W.1/5. The site-plan of the acquired piece of land would show that the suit land is a levelled tract situated on Takht Bhai-Takkar road, District Mardan and is not only commercial in nature but also building sites. Statement of Lal Sharif Khan, Advocate was recorded as PW-2 and he has also given the location and high potentiality of the acquired land. Statement of Muhammad Ayaz petitioner was recorded as PW-4 who has described the location of land and its commercial nature. These witnesses were subjected to a very lengthy cross-examination but nothing has been squeezed out in the cross-examination to shatter their testimony. The respondents produced Dil Said Patwari Halqa Swabi Scarp and Tawas Khan SDO Swabi Scarp as RWs-1 & 2 respectively. In the cross-examination both of these witnesses admitted that the acquired tract of land is situated on the main mettaled road known as Takht Bhai-Takkar road. It was also admitted by these witnesses that the major portion of frontage of the disputed Khasra numbers, which touches the said road, has been acquired from the respondents-land owners. So, in this situation the high potential nature of the suit land is proved from the record of the case. The contention of the learned counsel for the appellants, that the acquired land is Shah Nehri as recorded in the revenue record and it should have been assessed by the learned Land Acquisition Judge as Shah Nehri, is without any substance for the reason that the land may be recorded as Shah Nehri but the Court has to take into consideration the location of the land, the high potentiality of the same and its proximity to road to find out as to whether it can be utilized for building purposes. One year average is not always a true criterion for determination of the market value of the acquired land.
9. It is repeatedly held by the superior Courts that the expropriated land owners should be paid the compensation and not the price of the acquired land and the location, proximity to road and its future use should always be taken into consideration as held in the cases of Province of Punjab through Collector Attock Vs. Engineer. Jamil Ahmad Malik and others (2000 SCM R 870) and Collector, Land Acquisition, Mardan and others. Vs. Nawabzada M. Ayub Khan and others (2000 SCM R 1322).
10. Another principle of law is that the land owners should be paid the compensation and not the price and one of the factors for determining market value would be the date of notification under Section 4 of the Land Acquisition Act. Market value of the property has always to be determined with respect to the location, potentiality and the transactions of similar land at the time of notification under Section 4 of the Land Acquisition Act are other factors which must be kept in mind while fixing the market value and the price what a willing purchaser would pay to a willing seller should always be kept in mind as held in the cases of Pakistan Burmah Shel Ltd. Vs. Province of NWFP and three others (1993 SCM R 1700), Muhammad Saeed and 78 others Vs. Collector Acquisition Land, Mansehra and 3 others (PLD 1996 Peshawar 22) and Govt. of Sindh through Deputy Commissioner, District Dadu and another. Vs. Ramzan and others (2000 CLC 99 Karachi).
11. So, in these circumstances and in view of the dictum of the apex Court the learned Referee Court has rightly fixed the compensation of the acquired land to be Rs,3500/- per marla alongwith 15% compulsory acquisition charges and 6% simple interest from the date of takings over the possession till the payment of the entire awarded compensation.
12. The judgment and decree of the Referee Court is based on sound judicial principles of law and the evidence has been scanned strictly in accordance with the established principles of appreciation of evidence which calls for no interference.
13.In view of the facts and circumstances of the case narrated above, there is no merit in this appeal which is hereby dismissed with no order as to costs.