'MUHAMMAD ALAM KHAN, J.-- -Nawabzada Tahir Bin-eYameen and others have preferred the instant Regular First Appeal against the judgment and decree of the learned Senior Civil Judge/Referee Court through which the Reference Petition No,12/04 of 1996 decided on 10-6-2006 of the expropriated land owners was partly accepted and the compensation of the acquired land of the appellants was enhanced from Rs,4,939.87 per Kanal to Rs,12,000 per Kanal along with 15% compulsory acquisition charges and six per cent simple interest from the date of possession till final recovery of the amount minus the amount if any already paid to the appellants. However, the claim of the appellants regarding five per cent of severance charges was turned down leaving the parties to bear their own costs. The appellants, i,e, the expropriated land owners, being partly aggrieved have filed the instant regular first appeal.
2. Briefly narrated the facts of the case are that the Government N.-W.F.P. For a public purpose, namely, construction of Minor Drain 7 CRBC Project WAPDA D.I. Khan, was in need of some land for the acquiring department i,e, the respondents, and in this connection the land of the appellants was selected and consequently it was acquired.
3. The appellants did not accept the award and filed a reference petition wherein it was specifically averred that the Land Acquisition Collector has neither provided them a chance of hearing, but in their absence has fixed very meager compensation. It was also averred that the acquired piece of land is situated on main Dera Road. On this road, the SDA has acquired some land to which the land of the ex-propriated land owners is adjacent. It was also averred that the acquired piece of land is situated in the proximity of Pakistan Radio Station and Mufti Mehmood Hospital. Thus, it was prayed that the land of the appellants was highly potential in value, amidst the Abadi situated on the road side and thus the compensation per Kanal was under no circumstances less than Rs,30,000 per Kanal.
4. On summoning the defendants filed written statement wherein the allegations contained in the reference petition were hotly contested. The learned Referee Court of the pleadings of the parties framed as many as four issues including the relief. Thereafter, the parties were afforded opportunity to lead pro and contra evidence and the learned trial Court after hearing the parties and their learned counsel and considering the data available on the record enhanced the compensation of the acquired land from Rs,4,939.87 to Rs,12,000 per Kanal as aforesaid and hence the present regular first appeal.
5. Mr. Khuda Bakhsh Baluch, learned counsel for the appellants, submitted that the land was highly potential in value, situated on the main road, was in fact building site and commercial in nature.
The learned Referee Court has not taken these aspects of the case into consideration. It was also averred that the appellants had claimed the relief of five per cent for severance of their land from the other land of chunk of the appellants which too has not been granted. Reliance was placed on the case of Province of Punjab through Secretary Irrigation and Power Department Lahore and 2 others v. Syed Muqarab Ali and 4 others 2008 SCMR 572.
6. Mr. Mazhar Alam Khan Mian Khel, learned counsel for the respondents, submitted that the one year average was in fact lesser than the market value but as the learned Land Acquisition Collector has personally visited the spot and had kept in view the location of the land fixed the compensation at Rs,12,000 per Kanal. The learned counsel, however, conceded that the appellants are entitled to five per cent severance charges which has been denied to them.
7. I have considered the arguments of the learned counsel for the parties and have gone through record of the case.
8. Perusal of the reference petition reveals that the appellants had claimed Rs,30,000 per Kanal and had categorically put challenges to the Award of the Land Acquisition Collector. Perusal of the written statement reveals that there was evasive denial but the learned referee Court failed to frame proper issues and that is why no proper relief could be granted to the appellants. This is on the record that the acquired chunk of land is situated on the main road adjacent to the Abadi and was highly potential in value for which the Land Acquisition Collector ought to have appointed an independent Local Commissioner in order to determine the location of the land, the fact of its situation amidst Abadi and its commercial nature keeping in view the dictum handed down in the cases of Sarhad Development Authority through Chairman Peshawar v. Land Acquisition Collector/Deputy Commissioner Abbottabad and 19 others 1998 SCMR 730, Tanveer Mehboob and another v. Haroon and others 2003 SCMR 480, Muhammad Iqbal Khan and others v. Government of N.-W.F.P. And others 1998 MLD 1075, Muhammad Saeed and 78 others v. Collector Land Acquisition Mansehra and 3 others PLD 1996 Pesh. 22 and Collector Land Acquisition Peshawar and others v.
Rokhan and others PLD 1995 Pesh.
78.
9. In this view of the matter, the instant appeal is accepted, the impugned judgment and decree of the learned Referee Court is set aside and the case is remanded to the trial Court for decision afresh after appointing a Local Commissioner to inspect the spot and submit a detailed report to the trial Court keeping in view the criteria laid down in section 23 of the Land Acquisition Act, 1894.
After receipt of the report of the Local Commissioner, learned trial Court will give a chance of leading pro and contra evidence if the parties wished to adduce and thereafter will decide the lis afresh. As this is a matter fiscal in nature on which six per cent simple interest on public exchequer will be accumulated, it will be highly appreciated if the learned trial Court take up this matter on priority basis. Parties are directed to appear before the trial Court on 16-5-2009.