' SYED SAJJAD HASSAN SHAH, J.--- The regular first appeal is preferred against the judgment and decree dated 15-1-2007 passed by learned Senior Civil Judge/Judge Land Acquisition Mardan whereby the compensation in respect of the land acquired of the objectors-respondent enhanced from Rs,1250/- to Rs,5000/- per marla.
3. Precisely stated facts are that the appellants acquired land measuring 54 kanals, 9 marlas, vide Award No,4/4 dated 20-2-2002 comprised in khasra Nos.3021 and 3022, which was the ownership of the respondents on payment of Rs,1250/- per maria as market value of the suit land, for the construction of safety wall outside the Kalpani Nallah Mardan to save the valuable Abadi/Properties of Mardan City from flood. The respondents have filed a reference under section 18 of the Land Acquisition Act, 1894 for the enhancement of the market value of the suit property from Rs,1250/- to Rs,200,000/- per maria along with 50% compulsory solatium and 6% compound interest from the date of taking over the possession till the final payment of the compensation.
' The Collector Land Acquisition duly referred the same to the Judge Land Acquisition for adjudication under the law, with respect to its measurement and entitlement as well. The respondents sought the enhancement of the market value of the property on the ground that the suit land situated at the main road, Mardan, in the middle of the Abadi of Mardan Khas surrounded by the Commercial Market, cinema namely Spinzar and Nandara Army Golf Ground, CMH Hospital, Sabzi Mandi and fruit Mandi adjacent to the property belonging to Peer Sattar Park, surrounded by all four sides by roads, commercial markets and also can be used for Abadi. While awarding the compensation to the respondents quite a meagre amount without taking into consideration the potential value, future use of property and purpose of its acquisition.
' It is further averred that notification under section 4 of the Land Acquisition Act, 1894 issued on 5- 5-1993. Award announced on 20-2-2002. The proceedings of acquisition remained as stand still for a period of nine years at the time of issuing said notification the market value of the property was not less than Rs,50000/- per marla. In view of urgency by invoking the provision of section 17 of the Act ibid the appellants took the possession from the respondents on 5-5-1993 and, thus, they are entitled for the said compulsory solatium and 6% compound interest from the date of taking over the possession till the final payment of compensation. The appellants Nos.1-3 contested the reference by filing their written reply, in view of the divergent pleas of the parties, the learned Land Acquisition Judge framed issues, after recording of evidence and hearing of the parties; the learned Judge land Acquisition enhanced the compensation in view of one year average @ Rs,5000/- per maria and also declared that the respondents would be entitled for compulsory acquisition charges @ 15% simple interest and 6% with effect from the date of the delivery of the possession of the acquired land till the date of the final payment to the respondents. Feeling as being aggrieved the appellants have filed instant appeal impugned herein the enhancement so made in favour of the respondents.
3. The learned Counsel for the appellants contended that keeping in view the fact of the kind of land as being Sailabi and Ghair Mumkan, the acquisition was initiated at the instance of Irrigation Department for the construction of safety wall to protect the valuable properties situated along with river, he further contended that the suit property not acquired for any commercial purpose.
The suit property could not be used for any other purpose except for which the appellants have acquired the same. No evidence brought on record by the respondents to substantiate their claim, preferred for the enhancement of compensation as worked out by the Collector Land Acquisition.
He further contended that the learned Land Acquisition Judge not appraised and appreciated the evidence available on the record, thus, committed misreading and non-reading of evidence, without there being any solid and cogent evidence in support of the plea of the respondents, enhanced the compensation and determined much higher market value, than prevailing at the time of issuing notification under section 4 of the Act ibid.
4. The learned counsel for the respondents while rebutting the arguments of the learned counsel for the appellants contended that the compensation amount enhanced by the learned Referee Judge, in the light of entire material available on record. It is further contended that the respondents had produced sufficient cogent and convincing evidence in support of their claim of enhancement in compensation, the rate of compensation fixed by the learned Court below less than the actual value of the suit property. While determining the compensation, the value fixed, in view of the future use of the property and the purpose for which same has been acquired. It is further argued that the suit property is cultureable property, at the time of issuance of notification under section 4 of the Act ibid. The market value of the property was more than Rs,50000/- per marla. The amount of compensation enhanced by the learned subordinate Court was a meagre amount, therefore, the appeal liable to be dismissed and the judgment and decree passed by learned Judge Land Acquisition may be maintained.
5. The arguments of the learned counsel appearing on behalf of the parties considered and record carefully perused.
6. While determining the compensation of the acquired property, the Collector Land Acquisition has failed to take into consideration the location of suit property and its surroundings. Although both the villages namely Mouza Mardan and Mouza Chak Mardan are adjacently situated. The market value of Chak Mardan assessed @ Rs,7000/- per marla whereas the value of the suit property assessed @ 1250/- per marla along with other charges and interest. Notwithstanding, the possession of the suit property taken on 5-5-1993, whereafter award was announced on 20-2- 2002. The compensation worked out by the Collector without any D material before him and just relied upon one year average of the suit property. Record shows that the property was acquired for the purpose which seems to be much more important, as the valuable and commercial properties have been saved from the destruction and calamity of flood. The purpose of acquisition is to protect the valuable properties by constructing safely wall over the suit property owned by the respondents on payment of compensation. However, the enhancement in compensation made @ of Rs,5000/- per marla. If at all at such a low cost carried the acquisition of the property, for protecting the valuable properties situated adjacent to the suit property at the cost of the respondents. The appellant not to have reluctant to pay the disputed enhanced amount to the respondents, because, after the construction of the safety wall, the value of the property would be enhanced several times more than that, prevailing at the time of issuance of notification under section 4 of the Act ibid because of the reason that the properties have been protected and the purchaser being confident of its safety might be willing to pay at much better rates ever since fetched by the said properties.
7. Peer Kamal Shah, Land Acquisition Officer, Mardan examined as P.W.1, produced the record however not given the reasons to justify the assessment of market value @ Rs,1250/- per marla of the suit property. It is by now settle principle of law that while considering the question of enhancement of compensation of the property acquired for public purpose, besides one year average of the adjacent land, the Court would consider the other principles of enhancement laid down by the august Supreme Court, in this regard reliance placed upon a case titled Murad Khan v.
Land Acquisition Collector, reported as 1999 SCMR 1647, provides guidelines for the assessm ent of the compensation regarding the properties compulsory acquired from the land owners, which is as under:--- "Section 23 of the Act lays down, by way of criterion, that "market value" of land on the date of publication of notification under section 4 (ibid) would be the amount of compensation. The expression "market value" has not been defined in the Act. But there is considerable case-law on the point encompassing the period of about nine decades in which the expression in question has come to assume almost definite meaning. In this judgment we would, however, refer to a number of very important cases in which the expression 'market value' occurring in section 23 (ibid) has been judicially construed by various High Courts and even the Supreme Court of Pakistan.
According to these judgments the following matters are to be taken into consideration in determining the amount of compensation:--- ' The data from which the market value of the land can be estimated is given in Rule 13 of the North-West Frontier Province Circular No,54 issued presumably under section 55 of the Act.
(Premier Sugar Mills Limited v. Hayatullah Khan (PLD 1956 (W.P.) Pesh. 67).
(ii) The best method to work out the market value is the practical method of a prudent man laid down in section 3 of the Evidence Act to examine and analyze all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land". The Land Acquisition Collector, Rawalpindi v. Lieut. General Wajid Ali Khan Burki (PLD 1960 (W.P.) Lah. 469).
(iii) Subsection (1) of section 23 of the Act provides that in determining the amount of compensation the court shall take into consideration the market value, loss by reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition. (Province of West Pakistan and another v. M. Salim Ullah and others (PLD 1966 SC 547).
(iv) The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of it near about the date of notification under section 4(i) of the Act.
The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of the sale of land in the neighboring locality, the potential value of the land need not be separately awarded because such sales cover the potential value. (logendra Nath Chatterjee and others v. State of West Bengal (AIR 1971 Calcutta 458). (Underlining provided for emphasis).
(v) It is obvious that the law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining the market value, classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani as in the present case but its location, neighbourhood, potentiality or other benefits. (Pakistan and another v. Rehm Dad and anther (1980 CLC 574). (Underlining provided for emphasis).
(vi) According to the well-settled principle, while determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality have: to be kept in consideration. (Pakistan v. Din Muhammad and others (1983 CLC 1281).
(vii) Consideration should be had to all the potential uses to which the land can be put, as well as the advantages, present or future, which the land possesses in the hands of the owneRs, (Mst.
Khatu and others v. Barrage Mukhtiarkar, Thatta (PLD 1977 Kar. 203).
(viii) In determining the quantum of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction. (Din Muhammad v. General Manager, Communication and others (PLD 1978 Lah. 1135).
(ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser .... This means that we have to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist. (Province of Punjab Sher Muhammad and another (PLD 1983 Lah. 578).
(x) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the 'past sales' should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as court-witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the courts rely on oral testimony alone and do not insist oh the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in questions because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The 'previous sales' of the land, cannot, therefore, be always taken to be an accurate measure for the determining the' price of land intended to be acquired. (Fazalur Rehman and others v. General Manager, S.I.D.B. And another (PLD 1986 SC 158).
(Underlining provided for emphasis).
(xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value.
(Government of Pakistan v. Maulvi Ahmed Saeed (1983 CLC 414).
(xii) It is a well-settled law that in cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act. (Central Government of Pakistan v. Sardar Fakhar-e-Alam and another (1985 CLC 2228).
(xiii)The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted, should be taken into consideration. (Raza Muhammad Abdullah through his Legal Heirs v. Government of Pakistan and others (1986 MLD 252).
(xiv) The phrase "market value of the land" as used in section 23(1) of the Act means "value to the owner" and, therefore, such value must be the basis for determination of compensation. The standard must be not a subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration.
(Abdul Wahid and others v. The Deputy Commissioner (1986 MLD 381).
' Undoubtedly in some cases of acquisition of land the schedules of average prices of mutations and sale-deeds have been considered for the determination of the 'market value' an expression occurring in section 23 of the Act. In one case the Collector Acquisition has squarely relied upon the Schedules Exh.O.W.5/1 to award the compensation to the respondents at Rs,40,000 per kanal. As has been held in the Government of Pakistan v. Maulvi Ahmed. Saeed (1983 CLC 414), cited at Serial No,(xi) ante the sale-deeds and mutation entries do serve as aids as to the prevailing market value. Nonetheless, this is not the sole criterion for the determination of the market value.
Consequently, the learned Collector Acquisition, the learned Civil Court and the learned Chief Justice of the Peshawar High Court had fallen into error to place reliance solely on the entries of mutations incorporated in the two Schedules Exh. OW-5/1 " .
8. For fair and just determination of compensation of the immovable property compulsory acquired at the instance of Government, all the criterion and principles laid down from time to time by the superior courts summarized in the above referred judgment, are the best guideline to be kept in view while determining the question of compensation.
9. The august apex Court laid down the distinction between the compensation and the market value of the property acquired for the public purpose. Even fair and proper determination of market value hardly can be made on the basis of one year average of similar situated property in proximity of the acquired property, therefore, the compensation can only be determined when all the relevant factors would be considered and followed, whereof, the court would arrive at a lawful conclusion. It is emphasized, obviously for the reason that a lawful owner is being compelled to part with his property, resultantly, deprived of his valuable proprietary rights in the immovable property being acquired, as against this, he must be paid proper and adequate compensation. The provision of Article 24 of the Constitution dealing with the compulsory acquisition of property by State for public purpose. The protection provided to the owners of the property that according to the same provision, the State is under obligation to pay the fair and just compensation of the property so acquired, thus, the Constitution has raised this obligation to the status of fundamental right in this regard, the provision of Article 24 of the Constitution, reproduced as under:--- ' Art.24...Protection of property rights...
(1) No shall be compulsory deprived of his property save in accordancpersone with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation, therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.
(3) .................................................
(4) .................................................
10. In order to substantiate the claim for enhancement of compensation the appellant produced the above named witness, when was cross-examined on behalf of the respondents, admitted as follows:- "It is correct that due to the protection wall rest of the objector's land, became safe from flood water."
11. While deciding Issue No,5 the learned Trial Judge has also considered Ex.P.W.2/4 whereby the average price of the acquired land fixed as Rs,5084/-, the same was produced by patwari halqa who was examined as P.W.2. He has also testified that prior to the construction of protection wall, the adjacent properties and Abadi to have affected by the flood water, on account of the construction of protection wall, the value of the property to have been increased much higher as compared to the value prevailing prior to the construction of the wall.. P.W.4 AOK Mardan was examined, who has produced the sale mutations and stated that according to those mutations, per marla rate of land is Rs,2325/, Rs,2500/- and Rs,5000/- respectively. The statement of a witness namely Kafyatullah Lambrdar Chak Mardan, was examined as P.W.4 in Suit No,20/4 on 9-9-2006.
He testified that the suit property situated on the main road side. The market value of the acquired property is Rs,40000/- to Rs,50000/- per marla moreover, he has acknowledged his signatures made on the sale mutations. P.W.5 Naveed Khan stated that the market value of the property not less than Rs,50000/- per marla as situated on the road side and adjacent to commercial markets, fruit vegetable markets, Golf Club. And on the other side of the suit property, abadi and the houses are situated. This portion of the statement of the witness has not been cross examined by the appellants, therefore, admitted by opposite party as correct. Muhammad Ajaml Khan Zilladar Irrigation Department was examined as RW-1, admitted in his cross examination in the following words:- "It is correct that adjacent to the acquired property towards the eastern side there is a road of Bughdada Kas, Kuroona and also the abadi of Kas Kuroona Mardan. It is correct that towards the western side there is Golf Club. The distance between the acquired property and the fruit, ex-sabzi mandi is at a distance of 2000 feet. Witness volunteered that these are lying to the other side of the property. Some about 15 days before from today the Sabzi Mandi and fruit mandi has been shifted by the Govt. Of N.-W.F.P. Towards the Eastern side of the acquired property on the Kas Kuroona Road 2/3 shops. The distance between the timber market shops of Bughdada is situated at a distance of 2000 feet from the property. It is incorrect to suggest that the acquired department straightaway ignored the potential value of the acquired property and a very low amount is assessed by the department".
12. The learned Land Acquisition Judge while deciding Issue No,5, enhanced the compensation amount as Rs,5000/- per marla, supported by the available evidence. The learned Counsel for the appellant only questioned the findings returned by the learned Land Acquisition Judge under issue No,5, however, the rest of the findings have not been challenged.
13. In view of the above discussion, the findings rendered by the learned Land Acquisition Judge is, hereby, maintained as not suffering from any legality or irregularity or misreading or non-reading of evidence.
14 The appeal is being without substance is, hereby, dismissed, with no order as to costs.