' MIAN SAQIB NISAR, J.---The noted R.F.A. No, 338 of 2006 as also R.F.A. No,339 of 2006 and R.F.A. No, 340 of 2006 are against the same impugned judgment and decree and also involve the common questions of law and facts, thus are being decided together.
2. The detail of the land, owned by the appellants respectively, which was acquired, the award was made and regarding the enhancement of the compensation thereof, they filed the references'under section 18 of the Land Acquisition Act, 1894 ("the Act"), is as under:-- ' R.F.A. No,338 of 2006.
' Land measuring 6-Kanals, 15-Marlas comprising of Square No,3, Killa No, 1.6 (4-Kanals, 11-Marlas), Square No,3, Killa No,13 (4-Marlas), Square No,2, Killa No,20/2 (2-Kanals) situated in Mauza Buddu, Tehsil Ferozewala District Sheikhupura.
' R.F.A. No,339 of 2006.
' Land measuring 2-Kanals 17-Marlas comprising of Square No,3, Killa No,13 (15-Marlas), Square No,3, Killa No,17 (2-Kanals, 2-Marlas) situated in Mauza Buddu, Tehsil Ferozewala District Sheikhupura.
' R.F.A. No,340 of 2006.
' Land measuring 4-Kanals, 6-Marlas comprising of Square No,3, Killa Nos. 16 and 17, situated in Mauza Buddu, Tehsil Ferozewala District Sheikhupura.
3. The above-mentioned lands were acquired by the Highways Department, Lahore for the construction of Link Road-II, New Ravi Bridge, Lahore and Notification under section 4 of the Act in this behalf was issued on 6-10-1994. As per the award, dated 23-4-1996, the appellants' land was considered to be agricultural and they were granted Rs,12,000 per Marla as the compensation.
Aggrieved of the above, the appellants filed references under section 18 of the Act, which have been decided by the learned Senior Civil Judge, Sheikhupura vide judgment and decree, dated 31- 3-2006 whereby, the character of the appellants' land has been adjudged to be residential in nature and the compensation has been enhanced to Rs,20,000 per Marla.
4. It is the case of the appellants that considering their land of any nature, its value was more than Rs,1,00,000 per Marla; in any case, it was commercial land; it had great future potential; in this behalf, they led documentary evidence to prove that the price of the land in the Mauza during the relevant period was compatible to their claim; Exh.P.2 is sale-deed, dated 29-8-1992 envisaging the sale price of 2-Marlas sold for Rs,2,00,000; Exh. P.3, sale-deed, dated 12-8-1992 showing 2-Marlas' price as Rs,1,50,000; Exh.P.4, sale-deed, dated 12-5-1997 whereby 6-1/2 Marlas land was sold for Rs,4,90,000 and Exh.P.6, sale-deed, dated 5-7-2000 as per which the land measuring 7-Marlas was sold for Rs,7,00,000. It is thus, argued that the average price of the land was around Rs,1,00,000 per Marla and this should have been so awarded as the compensation to the appellants. It is submitted that in paragraph No,25 of the impugned judgment, the Court itself had come to the conclusion that the average price of the land in the Mauza, which the appellants have established, is Rs,83,333 per Marla, however, the less amount i,e, Rs,20,000 was awarded only for the reason that between the land of the appellants and Lahore-Sheikhupura Road ("the Road"), there is a strip pertaining to another Mauza, which is owned by the government, therefore, the land of the appellants cannot be said to be abutting towards the Road or having access thereto; this reasoning according to the learned counsel is against the law and facts on the record, because such a strip of land owned by the government (such as the highway department), is imperatively meant to provide access to the land of the person immediately adjacent thereto. It is further submitted that in one of the cases, the appellant had established a Petrol Pump on the acquired land and the said strip was being used for the access to very Pump; (reliance on the legal question about the position of the strip and right of access has been placed upon the judgments reported as Municipal Committee, Toba Tek Singh through Tehsil Nazim and others v. Mirza Ghulam Sarwar and others (2003 SCMR 1341), Lahore Cantonment Cooperative Housing Society Limited through Secretary v. Messrs Builders and Developers (Pvt.) Ltd. And another (PLD 1999 Lahore 305), and Pakistan National Oils Ltd. And another v. Sattar Muhammad (1980 SCMR 686). It is also argued that as per the settled law, the amount of compensation to the persons, whose property has been acquired, should be liberally considered, determined and awarded; this should be done also taking into account the future potential of the property; in this regard, reference has been made to Muhammad Saeed and others v. Collector, Land Acquisition and others (2002 SCMR 407), Nisar Ahmad Khan and others v. Collector, Land Acquisition, Swabi and others (PLD 2002 SC 25) (at Pages 34 and 35), and Land Acquisition Collector and another v. Abdul Wahid Chaudhry and 3 others (2004 YLR 608).
5. Conversely, the learned counsel for the respondents has argued that the appellants have failed to establish the proximity and location of their land qua the land sold through the noted sale deeds, therefore, the price mentioned therein cannot be considered as the criteria for determining the compensation in the present cases; he has pointed out to Exh.R.11 and Exh.R.12, the plans depicting the location of the acquired land and states that in between it and the Road, there exists a strip, which forms part of a different Mauza and, therefore, it cannot be argued by the appellants that they have direct access from the Road; according to the price settled by the Board of Revenue, the commercial area of the Mauza was evaluated at Rs,40,000 per Marla thus, when the appellants have not been able to prove that their land was commercial, the Court below by rightly holding it to be residential has fixed the compensation.
6. We have heard the learned counsel for the parties and find that as per the documentary evidence produced by the appellants, the average price of the land in the Mauza is Rs,83,333 per Marla and this is also acknowledged by the Court below in paragraph No,25 of the judgment when it is held "If average of all the three transactions Exh.P.2, Exh.P.3 and Exh.P.10 be calculated that comes Rs,83,333 per marla." However, the Court refused to allow the compensation at the above rate for the reasons "I am not inclined to allow the compensation on the basis of average sale price of only three sale transactions. Average sale price can only be made basis for compensation for at least one year." It may be pertinent to mention here that "Aust Yaksala" is not the only piece of evidence for determining the price, though it may be one of the relevant; no presumption in law could be drawn against the appellants if "Aust Yaksala" has not been produced as they (the appellants) may earnestly have believed that the registered title documents are more credible in this A regard; the respondents, in order to disprove the sale price of the transactions adduced by the appellants, have also not produced "Aust Yaksala", when they hid the opportunity to do so and, therefore, the Court was bound to decide the matter on the basis of the evidence available on the record, rather on the basis of something which was not there. While considering the oral evidence of the witnesses of the respondents, the Court below has stated "In cross-examination R.W.1 admitted that there is Malik Town in the west side of the acquired land. He admitted the fact that petitioners demanded the compensation @ Rs,1,00,000. He admitted in the cross-examination that at one side of the acquired land there is Dosaco Chowk and on the other side there is Lahore Sheikhupura main Road. He also admitted that there is service station owned by Khalid Butt (one of the appellants) (underline words are mine). He also admitted that there is abadi on both sides of the road across Begum Kot towards Lahore. There are also factories, petrol pumps on both sides of the main road. He admitted the fact that Malik Town was developed by Malik Mahmood, the general attorney of Mst. Umtul Haseen (appellant in one of the cases) (underline words and mine).
He admitted the fact that compensation was received by the petitioners under protest."
Furthermore, it is mentioned in the impugned judgment that "Muhammad Rafique Girdawar appeared as R.W.2. He depicted that Mst. Umtul Haseen was owner of 3 kanals, 1 marla out of land measuring 7 kanals 9 marla. R.W.2 admitted that there are factories, petrol pumps on both sides of Lahore Sheikhupura main road. He also admitted that Khalid Mahmood Butt one of the petitioners has installed service station on his acquired land. He also admitted the fact that petrol pump and Polka Factory is in existence opposite to the acquire land." It may also be added here that the oral evidence led by, the appellants is almost to the same effect, on which no cross-examination to controvert the specific assertions about the location, the nature and the value of the land, has been conducted. Yet the relief has been denied to the appellants for another reason that "As for as situation of the land of all four references is concerned, respondents have took the version that same do not touch the main Lahore Sheikhupura road. Allegedly a strip of 50/60 feet falls in between the main road and land owned by the petitioners. This strip belongs to Mauza Khaki.
Khalid Mahmood Butt, Assistant Land Control Office present in the Court has referred the Aks Masavi of Mauza Khaki and Aks Masavi of Mauza Buddo Exh.R.10 and Exh.R.11. These documents make it clear that a strip of 50/60 feet belonging to Mauza Khaki falls in between main road and land owned by all the petitioners. So, lands of all' the four references do not fall under the category of commercial." The point, which has been missed by the Court below is, that such strip of land is one, which provides the access to the appellants' land from the Road. It is the strip, which belongs to the government and is obviously for the widening of the Road; in any case, the appellants had the right of access from the Road through the strip which could not be blocked under the law and therefore, for all intents and purposes, the acquired land as a compact unit shall be considered abutting towards the Road. It may also be stated here that the entire oral evidence, which has been led by the appellants, has been ignored by the Court below, which proves that the entire area where the land of the appellants was located is commercial in nature.
7. It is argued by the learned Assistant Advocate General that from the sale deeds of the land produced by the appellants, they have not been able to connect their land with those sold through the deeds. However, when confronted he has not been able to controvert that the land of the appellants, which is acquired, is at the front, whereas that land sold and envisaged by the sale deeds is at the rear. This is so clear even from Exh.10 and Exh.R.11, therefore, obviously the appellants' land shall be even more valuable than the one covered by the sale deeds, as it is better located and is in close proximity of the Road, having direct and/or close access there-from.
8. While considering the question about the grant of compensation, a Division Bench of this Court in the judgment reported as Land Acquisition Collector and another v. Abdul Wahid Chaudhry and 3 others (2004 YLR 608) had held that "If property of any person is being taken over to serve the public purpose and interest, such person is to be given adequate fair, just and due compensation.
Property to be acquired in a particular case may be the only source of income or the acquisition may render the owner shelter-less. Court being guardian of fundamental rights of citizens has to keep all such factors in mind while dealing with the cases of such nature and ensure award of due and fair compensation to the landowners." In the same dictum, the Court has given the plus factors such as (1) Smallness of size (2) Proximity to a road (3) Frontage on a road (4) Nearness to developed area (5) Regular shape (6) Level vis-a-vis land under acquisition (7) special value for an owner of an adjoining property to whom it may have some very special advantage. And the minus factors as (1) Largeness of area (2) Situation in the interior at a distance from the road (3)
Narrow strip of land with very small frontage compared to depth (4) Lower Level requiring the D depressed portion to be filled up (5) Remoteness from developed locality (6) some special disadvantageous factor which would deter a purchaser.
9. From the evidence available on the record, it is the plus factors which tilt in favour of the appellant and none from the minus or negative has been pointed out by the respondents to establish that the appellants are not entitled to due and fair compensation, which they proved on the record on account of the documentary as well as oral evidence. In the judgment reported as Nisar Ahmad Khan and others v. Collector, Land Acquisition, Swabi and others (PLD 2002 SC 25), the Honourable Supreme Court while fixing the criteria for the compensation has held:-- "Where lands are acquired not through mutual negotiations but under the State power conferred upon the State functionaries the have to be liberal and generous in fixing the quantum of land owners are entitled to maximum possible benefit. Courts compensation based on different considerations so that neither a landowner is deprived of his due rights nor the acquiring agency is unduly burdened in the transaction."
' Thus, considering the merits of these cases on the touchsone of the above dictums; taking into account the documentary as well as oral evidence of the appellants, the admissions made by the respondents' witnesses, the portions of which statements have been highlighted above, it is established on the record that the land of the appellants was of prime quality, which almost was located on the main Lahore-Sheikhupura Road and/or was in the close proximity thereof, thus, it was the commercial property, and even if assuming it was not, still the price of the land sold in the Mauza of any nature (as proved through the sale deeds) was above Rs,85,000 per marla.
Therefore, the appellants Were titled to the compensation adjudging the property as commercial and on that basis; besides, keeping in view the future potential of the property as has been held in the judgment reported as Muhammad Saeed and others v. Collector, Land Acquisition and others (2002 SCMR 407), that "while determining the amount of compensation, Court is to consider evidence brought on record by the parties and the Land Acquisition Collector while determining compensation of acquired land in addition to one year average price, has also to consider the potentiality and future prospective of the land."The future prospective of the land in question undoubtedly was of immense commercial nature, therefore, the appellants if not entitled to Rs,1,00,000 per Marla, as they have demanded, at least the Court below should have granted them Rs,85,000 per Marla. Besides the above, the learned counsel for the appellants has argued that in case the appellants are found entitled to the amount in excess of the compensation awarded in the award by the Collector, the compound interest at the rate of 8% per annum should also be granted to them. The request is undoubtedly in line with the provisions of section 28 of the Act, therefore, for the enhanced compensation of Rs,85,000 per Marla, the appellants are allowed the compound uMerest in terms of the above section. Moreover, the learned Court below has failed to grant the additional compensation to the appellants according to section 28-A of the Act, therefore, they are also granted the amount of 15% of the enhanced compensation by the Courts (inclusive of the trial Court and this Court), which shall be paid to the appellants from the date of the Notification under section 4 of the Act till the date of the payment thereof. Resultantly, by allowing these appeals, the judgments and decrees of the Court below are accordingly modified.