' ABDUL HAMEED DOGAR, C.J.--- This direct appeal has been filed against the judgment dated 12-1- 2007 passed by learned Single Judge in Chambers of Peshawar High Court, Abbottbad Bench whereby R.F.A No,50 of 2003 filed by respondent was allowed and order of the learned Referee Judge was partially set aside and the amount of market value was enhanced to Rs,1,00,000 per Kanal with 15% compulsory acquisition charges along with 6% annual interest from the date of taking over the possession till payment.
2. Brief facts of the case are that the respondent was the owner of land measuring 3 Kanals, 15 Marlas bearing Khasra Nos.2315, 2316, 2318 to 2321 and 5265, situated in Mauza Dalola, Tehsil and District Abbottabad. The said land was acquired by the Land Acquisition Collector on the request of DE(M), Abbottabad for the construction of playground for Government High School, Dalola vide Notification dated 9-2-2002. The Collector fixed compensation of the land for Rs,94,151 along with 15% acquisition charges through Award No,140 dated 25-1-1995. The respondent filed Reference under section 18 of the Land Acquisition Act, 1894 before the Referee/Senior Civil Judge, Abbottabad, which was partly decreed and the compensation was enhanced to Rs,30,000 per Kanal. Being aggrieved, the respondent filed R,F.A. No,50 of 2003 before the Peshawar High Court, Abbottabad Bench which was allowed vide impugned order as stated above, hence this appeal.
3. Learned Advocate-General, N.W.F.P vehemently contended that learned High Court has erred while enhancing the compensation amount and much higher price has been fixed without any cogent ground. The learned High Court has wrongly fixed the market value of the acquired land on the basis of agreement agreed between the respondent and the Headmaster of GHS, Dalola whereby the price of land was fixed at Rs,1,00,000 per Kanal. He further contended that although after the private negotiations between the respondent and the Headmaster of Government High School, Dalola, the price of land was agreed as Rs,1,00,000 per Kanal, on which the department had expressed its willingness and the document was forwarded to the higher-ups for approval but the same was not approved and the department opted to obtain the land through acquisition, therefore, the said agreement cannot be relied upon. He further stated that the claim of respondent about the nature of land being "Bari" land was not true. He contended that the local commissioner after spot inspection and local investigation, wrongly determined the market value of "Bari" land at Rs,1,03,572 per Kanal, "Maira" land at Rs,47,346 and "Ghair Mumkin" land as Rs,2959/20 per Kanal which is much higher than the actual market value. He further stated that learned Peshawar High Court has not considered the average price of the last one year which was much less than that of price fixed by the High Court.
4. On the other hand, respondent present in person stated that the acquired land was a "Bari" land which has high potential value and the learned High Court was rightly enhanced the market value.
He further stated that the Headmaster of GHS, Dalola, was ready to purchase the acquired land at the rate of Rs,1,00,000 per Kanal and an agreement was also executed in this regard but later on the department with mala fide and dishonest intention, in order to grab the respondent's land opted for acquiring the land through acquisition proceedings. He relied upon the report of the Hifzur Rehman, Assistant to Commissioner Political Abbottabad, as Local Commissioner whereby the price of "Bari" land was fixed at Rs,1,03,572. He further stated that the land was acquired and the possession was taken over in the year, 1995 and since then the price of the properties has been increased many fold, therefore, even the price fixed by the learned Peshawar High Court is much less than the actual market value.
5. We have heard the parties at length, have gone through the impugned judgment and available record minutely. It is admitted by the appellant that before the acquisition proceedings, the Headmaster of Government High School, Dalola, through private negotiations, was willing to purchase the acquired land at the rate of Rs,1,00,000 per Kanal and in this regard the document was also executed and the same was forwarded to high-ups of the Education Department but the department opted to acquire the land through acquisition proceedings. It is evident from the record that before the passing of Award No,140 dated 25-1-1995, Mr. Hifzur-Rehman, Assistant to Commissioner (Political) Abbottabad was duly appointed as Local Commission by the Land Acquisition Collector, for the determination of the market value of the suit-land, vide letter dated 26-3-1994, on the ground that the price agreed through private negotiations was much higher than that of one year average price. The said Local Commission vide its report dated 17-5-1994, stating that the revenue record for the period 13-5-1993 to 6-4-1994 had showed a sharp increase in the prices of lands and the agreed price of Rs,3,00,000 was justified, as the acquired land was situated in the best and most suitable locality. It is well-settled principle that at the time of passing of award, the potential value of the property has to be considered in addition to the market value of the land. In this behalf reference can be made to the cases of Province of Sindh v. Ramzan and others PLD 2004 SC 512. 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 y. Jamil Ahmad Malik 2000 SCM R 870, which is reproduced hereinbelow 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 by the owners was not exorbitant and, therefore, taking the relevant factors into consideration, the rate of compensation awarded by the Referee Court was fair."
6. It may also be noted here that the average of sales of last one year is not conclusive for the determination of the market value of land and while assessing the market value of the land, its location and potentiality has also to be considered. Reference in this regard can be made to the case of Pakistan Burma Shell Ltd. v. Province of N.-W.F.P and 3 others 1993 SCM R 1700, wherein this Court observed as under:--- "(6) We are not persuaded 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 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."
7. In the case of Province of Punjab through Collector, Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCM R 1692, certain principles of law have been laid down for assessing the market value of the land acquired under the Land Acquisition Act, 1894 in terms of section 23, the relevant portion of the said judgment is reproduced herein below:---
8. "(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.
(ii) That while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered.
(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."
8. The upshot of above discussion is that no ground is made out for interference in the impugned judgment which is well reasoned. The appeal being devoid of any merit is dismissed with no order as to costs.