' IJAZ UL AHSAN, J.--- This judgment shall dispose of R.F.As. Nos.296 of 2010, 297 of 2010, No,597 of 2009 and No,598 of 2009 as common questions of law have been raised in these petitions.
2. The brief facts of the case are that certain land was acquired by the respondents for the purposes of construction of Umerabad Bye-Pass, Lahore-Sahiwal Section. In this connection the land owned by the appellants was acquired. A notification under section 4 of the Land Acquisition Act was published on 19-10-1996 and combined notice under section 17(4) read with section 6 of the Land Acquisition Act was published in the Gazette on 27-12-1997. It appears that the acquisition proceedings took some time and were ultimately completed in the year 2002 when the award was announced by the Land Acquisition Collector on 17-7-2002 after a lapse of almost six yeaRs, A perusal of the record indicates that compensation in the sum of Rs,3004.69 per marla was awarded to the appellants with 50% acquisition charges and 8% compound interest in terms of section 28 of the Land Acquisition Act. Being dissatisfied with the quantum of compensation awarded, the appellants filed a reference under section 18 of the Land Acquisition Act. In the said reference enhancement of the quantum of compensation was prayed for. The appellants sought enhancement of the rate of compensation to Rs,1,25,000 per marla. Further, 25% compulsory acquisition charges and compound interest under the law was also claimed
3. The referee court (the Senior Civil Judge, Kasur) issued notice to the respondents, who contested the matter. Out of divergent pleadings of the parties three issues were framed. However, for the purpose of determination of this appeal issue No,1 is material which is reproduced below:--- "Whether the price of the eland in question was assessed inadequately? If so, what is the proper amount of compensation to be awarded to the petitioners? OPP."
' The referee court subdivided the aforesaid issue for its own convenience in the following parts:---
(a) Is the Award an independent;
(b) The period which should have been taken into consideration for assessing the value of the land;
(c) Character of the land in question.
(d) What should be the price of the land in question.
4. The parties were called upon to produce their evidence. In oral evidence, the petitioners produced Muhammad Yousaf, Clerk of Court, as A.W.1, Khurshid-uz-Zaman, Record Keeper, District Courts, Lahore, as A.W.2, Imran Mazhar, Halqa Patwari, as A.W.3, Haji Muhammad Razzaq as A.W.4, and Muhammad Ishaq, special attorney of the petitioners, as A.W.5. The petitioners also produced application for supply of Copy bearing No,8851 (Exh.A.1), application for supply of Copy bearing No,8852 dated 8.5.2006 (Exh.A.2), application for supply of Copy bearing No,8853 dated 8-5-2006 (Exh.A.3), copy of Mutation No,3309 (Exh.A.4), copy of Mutation No,3311 (Exh.A.5), copy of Mutation No,3261 (Exh.A.6), copy of register haqdaran Zamin for the year 1997-98 (Exh.A.7), copy of Mutation No,3309 (Exh.A.8), copy of Mutation No,3311 (Exh.A.9), copy of Mutation No,3261 (Exh.A.10), copy of special attorney (Exh.A.W.5/1), certified copy of award dated 26-2-1996 (Exh.A.W.5/2), certified copy of Judgment of this Court dated 12-6-2003 (Exh.A.W.5/3), Order of this Court dated 12-6-2003 (Exh.A.W.5/4), certified copy of Order of honourable Supreme Court of Pakistan dated 31-1-2005 (Exh.A.W.5/5), Judgment of honourable Supreme Court reported in PLD 2004 SC 512 (Exh.A.W.5/6), certified copy of Shajra Shera Kot (Exh.A.W.5/7), certified copy of Shajra Mauza Kot Komboh (Exh.A.W.5/8), certified copy of Shajra Mauza Babu Sabu (Exh.A.W.5/9), letter of LAC to the Senior Civil Judge, Lahore, submitted under section 18 of the Land Acquisition Act, 1894 (Mark-A), copy of letter from Syed Muzaffar Ali Shah, Senior Civil Judge, Lahore, to the LAC (Mark-B) and copy of entry register (Mark-C). On behalf of respondents, Mian Rauf Ahmad, L.A.C., N.H.A., Shahpur Interchange, appeared as R.W.1. Copy of award dated 26-2-1996 is Exh.R.W.1/1, copy of notification with regard to price of land assessed by Price Assessment Committee (Exh.R.W.1/2), letter from Collector District Lahore to Commissioner, Lahore Division, Lahore (Exh.R.W.1/3), notification (Exh.R.W.1/4), copy of notification dated 12-6-1994 (Exh.R.W.1/5), notification as to categorization of land dated 30-3-1994 (Exh.R.W.1/3), notification under section 17(4) of the Land Acquisition Act (R.W.1/4) and notification under section 4 of the Land Acquisition Act (R.W.1/5).
5. The learned counsel for the appellants submits that he would focus his arguments on part (b) and (d) above, insofar as these relate to the date which is relevant for the purposes of determination of compensation and the criteria for determination of price/ compensation.
6. The learned counsel has pointed out that during the trial before the referee court the appellants produced oral as well as documentary evidence. A large number of exhibits were placed on record consisting of sale-deeds and copies of the Revenue Records from the period between 1994 to 2002 in order to show not only the price of the land in question prevalent in 1992 but also the price prevalent when the award was announced in 2002 in order to establish the future potentialities of the land. It is pointed out that the National Highway Authority/respondent only produced two witnesses whose evidence according to the learned counsel is not of much consequence. The respondent did not produce any documentary evidence on this point.
7. The learned counsel for the appellants submits that date relevant for the purpose of calculating compensation is the date of award. In this context the learned counsel has placed reliance on Province of Sindh through Collector of District Dadu and others v. Ramzan and others (PLD 2004 SC 512) in which the apex Court observed that for determining the compensation to be awarded, price of the acquired property is only one of the factors and other factors have also to be kept in mind by the court which include future potentialities of the acquired property. He further submits that the trend of the superior courts in terms of compensation to the landowner is not to focus on the price but to award compensation to the citizen who is forced against his will to give up his property. He therefore submits that there is a distinction between the price and compensation and compensation should include the price, the future potentialities and adequate recompense for taking away livelihood/property of the landowner against his will. In this regard the learned counsel has placed reliance on Chairman WAPDA and others v. Sarfraz Khan and another (2007 SCMR 1054); Mst. Amtul Haseen and another v. Land Acquisition Collector, Highway Department, Lahore and 3 others (PLD 2009 Lah. 524); Murad Khan through his widow and others v. Land Acquisition Collector, Peshawar and another (1999 SCMR 1647) and Haji Abdul Wahid and others v. WAPDA and others (2005 CLC 1453).
8. The learned counsel further submits that as opposed to the evidence produced by the appellants, the respondents did not produce any evidence on the issue of value/price of the acquired property. He therefore submits that the appellants fully discharged the onus placed on them in terms of issue No, 1 . Referring to the evidence, the learned counsel submits that it was admitted by the respondents that the property which was acquired was being used for commercial purposes. Referring to the evidence of R. W.1, the learned counsel points out that it was admitted not only by R.W.1 but also by R.W.2 that the acquired property was being used for commercial purposes and for this reason certain lands situated near the property of the appellants had been acquired at the rate of Rs,1,45,000/- per marla for the purpose of an overhead bridge. He further points out that, in any event, it is an admitted position that the land in the adjacent areas was valued at Rs,50,000/- to Rs,1,75,000 per marla. He therefore points out that the learned referee court erred in law in awarding compensation at the rate of Rs,50,000 per marla after having found that the value of land at the time of notification under section 4 of the Act was Rs,50,000 per marla while at the time of the award (i.e. Six years later) it was valued much more than that, yet while decreeing the enhancement it confined itself to the value in 1994. He therefore prays that the appellants are entitled to receive enhanced compensation in the sum of at least Rs,1,00,000 per marla.
9. On the other hand, the learned counsel for the respondents has drawn our attention to section 23 of the Land Acquisition Act and the explanation to the said section. The learned counsel points out that certain factors are identified in section 23 which need to be considered at the time of determination of the value of the acquired land. He points out that the concept of future potentialities was subsequently introduced by way of an explanation and can only be taken into account in limited circumstances specified in the said explanation. He adds that if at all future potentialities were to be kept in mind, the same were required to ,be established by production of evidence which in the present case was not done.
10. The learned counsel argues that the mechanism for calculation of value of acquired land is provided in the Punjab Land Acquisition Rules, 1983. He has referred to rule 10(3) of the said rules to maintain that one of the major factors to be kept in mind for determination of the value is the average price of land in the period of twelve months preceding the date. Of notification under section 4 of the Act. The learned counsel argues that such value was kept in mind by the Land Acquisition Collector in arriving at aforesaid figure of Rs,3004.69 per marla.
11. The learned counsel also refers to section 25 of the Land Acquisition Act to submit that it is specifically provided that no compensation will be awarded beyond what has been demanded by the landowneRs, Likewise, compensatiqn less than the amount determined by the Collector cannot be awarded. He has also drawn our attention to the provisions of sections 9 and 10 of the Land Acquisition Act to argue that the notice and proceedings under the Land Acquisition Act provides an opportunity to the landowners not only to object to the proposed price of land but also to produce material in order to substantiate their claims for a higher compensation. He submits that the said opportunity was not availed by the appellants and they are estopped from raising the claim at a subsequent stage. The learned counsel for the appellants has, however, pointed out that the appellants had raised objections and claimed the sum of Rs,1,00,000 before the Land Acquisition Collector on receipt of notice and the proceedings taken thereafter.
12. The learned counsel for the respondents submits that on the touchstone of the case of Ramzan and others (supra), cut off date should be the date of announcement of the award, i.e., 17-7-2002.
He has, however, drawn our attention to Exhibits A.16 to A.23, which relate to transactions after announcement of the award. According to him, such transactions could neither be considered by the referee court nor can the same be considered in this appeal. Referring to Exhs.A.2 to A.15, the learned counsel submits that all the evidence placed on record relates to transactions involving small pieces of land which, in any event, fetch higher prices. He therefore submits that the said transactions cannot be used as a benchmark for the purposes of determination of the value of land measuring 207 kanals, 15 marlas which is the total land acquired by the respondents.
13. The learned counsel finally argues that only oral evidence was produced by the appellants to allege that the acquired property constituted commercial property. He submits that no documentary evidence was placed on record to establish the said character of the land. He also submits that Exhs.P.24 and P.25, the two judgments of the referee court relating to the same land, which were produced by the respondent indicate that the referee court had fixed compensation in the sum of Rs,30,000 per marla. It may be noted that the said judgments relate to land in the same area, although the learned counsel for the appellants points out that it relates to agricultural land and not the land similar to that of the appellants, which was admittedly in commercial use. Even otherwise, being dissatisfied with the two judgments of the referee court, the landowners are statedly before this Court through appeals.
14. We have heard the learned counsel for the parties and have examined the record with their assistance.
15. The main questions raised by the learned counsel and requiring determination are:---
(a) What period should be taken into consideration for assessing compensation to the appellants; and
(b) What is the quantum of compensation to which the appellants are entitled.
16. The notification under section 4 of the Land Acquisition Act was published on 9-10-1996 and the award was announced on 17-7-2002 i.e. 6 years later for no fault on the part of the appellants. The appellants contend that compensation equivalent to the price prevalent at the time of announcement of the award, should be granted to them. Exh.R-4, which is the approval letter of the Board of Revenue, indicates that average sale price for the crucial period was obtained for residential as well as the agricultural land and the same was used as basis for determination of compensation to be paid to the appellants. Although the crucial period is not mentioned in the document, but from Paragraphs-9 & 10 of the award read with section 23 of the Act, it is clear that the average of sale price of the land prevalent in the area, preceding the notification under section 4, was taken into consideration.
17. The question of determination of compensation came up for hearing before the honourable Supreme Court of Pakistan in The Province of Sindh v. Ramzan and others (PLD 2004 SC 512), where it was held as follows:--- "The most important aspect qua the lands compulsorily acquired is that the mandatory returns proposed to be given to the landowners is the compensation and not the market value. Very section 23 provides for various matters to be brought under consideration while determining compensation. Market value is only one of such matters to be considered by Collector or Courts.
Compensation is a very wide term indicating that the landowner, for various reasons, is to be compensated and not merely paid the price of land, which is just an interaction of supply and demand fixed between a willing buyer and willing seller.
' Section 23 was subsequently amended through West Pakistan Ordinance 49 of 1969 whereby the ambit of matters to be considered was widened and it was in this background that the Courts in the country emphasized the phenomenon of potential value of the land. This term potential value is only one word used for the future uses which the, land can be, put to. In Malik Awan's case (PLD 1988 ,X,52) this feature of potential value and had differentiated the same from the term 'market value'. It was held that market value was normally to be taken as one existing on the date of Notification under section 4(1) of the Land Acquisition Act under the principle of willing buyer and willing seller while the potential value, was explained to be one to which the similar lands could be put to any use in future. Factors for determining compensation of land are not restricted only to the time of the aforesaid Notification but can also relate to period in future and that is why in a large number of cases the 'potential value' has been held to be a relevant factor.
' This Court had also taken notice of the fact that the announcement of award is some times unreasonably delayed after the issuance of Notification under section 4 of the Act. In Malik Aman's case, the period that had elapsed was seven yeaRs, Obviously any escalation in the value of property during such period is a potential value of land which must be taken into consideration.
' Similar view was taken by this Court in Land Acquisition Collector Abbottabad v. Muhammad Iqbal (1992 SCMR 1245) at 1255-K). In the case of Pakistan Burmah Shell (1993 SCMR 1700); it was once again reiterated that consideration of market value at the time of Notification under section 4 of the Land Acquisition Act was merely one of the modes for ascertaining the market value and was not absolute yardstick for assessme nt of compensation. Numerous matters to be considered for determining compensation were elaborately laid down by this Court in Murad Khan's case (1999 SCMR 1647) which was again relied upon in Nisar Khan's case (PLD 2002 SC 25). The crux of the matter is that mere classification or nature of land may be taken as relevant consideration but not as absolute one. An area may be 'banjar' or 'Barani' but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits. All these factors, therefore, cannot be ignored.
' Our attention is invited, to a recent judgment of this Court given in the case of Hyderabad Development Authority PLD 2002 SC 84 where the Court has held that the crucial date for determination of market value is the Notification under section 4(1) of the Land Acquisition Act. We do not disagree with it because that verdict pertains to the determination of 'market value' and not to the determination of the compensation. The question of potential value was considered even in that ruling but was not granted because the landowner had not proved the same, being a question of fact."
18. In this regard, reference may also usefully be made to earlier judgments of various courts PLD 1992 FSC 398, 1993 SCMR 1700, 1993 CLC- 179, 1992 CLC 267, PLD 1991 Lah. 337 & PLD 1990 Peshawar
83. In the case of "Chairman WAPDA and others v. Sarfraz Khan" (2007 SCMR 1054), the interpretation and scope of section 23 of the Land Acquisition Act was considered and the court laid down elaborate principles for determination of questions relating to compensation payable to a citizen; whose property has compulsorily been acquired. It would be useful to reproduce the following portions of the aforesaid judgments:--- ' The above principle was also quoted with approval in the case of Haji Muhammad Yaqoob (supra) wherein it was observed that it is well-settled that one year's average sale price of the land in the vicinity preceding the date of notification under section 4 of the Act, is only one of the relevant factors for consideration in determining the market value of the land but it alone cannot be adopted as the basis for assessme nt of market value, if there is other evidence available on record to establish the potential value of the acquired land at a higher rate.
' In the case, of Province through Collector, Bahawalpur and others v. Col. Abdul Majeed and others 1977 SCMR 1692, the following principles of law were laid down for assessing the future prospects of the land acquired under the Land Acquisition Act, 1894 in terms of section 23: "(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."
' The above principles were also consistently followed in Abdur Rauf Khan v. Land Acquisition Collector 1991 SCMR 2164, Gunj Khatoon v. Province of Sindh 1987 SCMR 2084, Fazalur Rahman v.
Collector PLD 1988 SC 32 and Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. 1993 SCMR 1700.
' Reference may also be made to Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647, wherein one of us (Muhammad Bashir Jehangiri, J.) had exhaustively laid down the criteria for determination, of fair compensation. Relevant portion of the report reads thus:- "The schedule of average price for four years or for that matter even of one year are not the only criterion for determining the amount of compensation but the other material brought on the file is quite relevant to determine the correct amount of compensation for the acquired land. Section 23 of the Land Acquisition Act, 1894 lays down, by way of criterion, that market value of land on the date of publication of notification under section 4 of the said Act would be the amount of compensation. The expression market value has not been defined in the Act.
' Merely one year average price of the land in the same vicinity or the classification thereof is not exhaustive in itself but there are other considerations enumerated in the law which would also be relevant for determining the market value for fair compensation to be awarded to an owner whose land has been compulsorily acquired. It is wrong to look for the classification alone of the land for the purpose of determination of the fair compensation.
' The following matters are to be taken into consideration in determining the amount of compensation--
(i) the data from which the market value of the land can be estimated as given in Rule 13 of the North-West Frontier Province Circular No,5 issued presumably under section 55 of the Act.
(ii) The best method to work out the market value is the practical method of a prudent man laid down in Article 2, Qanun-eShahadat, 1984 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.
(iii) Subsection. (1) of section 23 of the Land Acquisition 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 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.
(iv) The best method of determination of the market price of the ploLs of land under the acquisition is to rely on instances of sale or it near about the date of notification under section 4(1) of the Land Acquisition 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 sale of land in the neighbouring locality, the potential value of the land need in the neighbouring locality, the potential value of the land need not be separately awarded because such sales cover the potential value.
(v) 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 but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits.
(vi) while determining the value of the compensation of market value of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration.
(vii) consideration should be had to all the potential uses to which the land can be put as well as all the advantages, present or future which the land possesses in the hands of the owneRs, (viii)In determining the quantum of fair compensation the main criterion is the price which a buyer would pay a seller for property if they voluntarily entered into the transaction.
(ix) The measure of fair compensation is the value of the properly in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser this means that Court has 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.
(x) While determining the value of the land acquired by the Government and the price which a willing purchaser would given 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 properly 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 on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind that 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 question, 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 levies on sale of property, people declare or show a much smaller amount as the price of the land purchased by them thin the price actually paid. The "previous sales" of the land cannot, therefore, be always taken to be an accurate measure for determining the price of land intended to be acquired.
(xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value.
(xii) In case of compulsory acquisition effort has to be made out 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 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.
(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.
(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."
19. The case of "Amtal Hussain and others v. Land Acquisition Collector, Highway Department Lahore" (PLD 2009 Lahore 524) involved the same questions of law and the facts and after discussing judgments of the honourable Supreme Court of Pakistan as well as this Court, a Division Bench of this Court came to the following conclusions : --- ' 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 shelterless. 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 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 depressed portion to be filled up (5) Remoteness from developed locality
(6) some special disadvantageous factor which would deter a purchaser.
' 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 land owners are entitled to maximum possible benefit. Courts have to be liberal and generous in fixing the quantum of 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 touchstone of the above dictums; taking into account the documentary as well as oral evidence of the appellants, the admission 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 entitled 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,100,000 per marla, as they have demanded, at least the Courts 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 mark the appellants are allowed the compound interest 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."
20. The record indicates that the land of the appellants although not officially classified as commercial was being used for commercial purposes. A.W.1 Pervaiz Ahmad, one of the petitioners stated in his evidence that the land was being used for commercial purposes and was being sold in the shape of commercial and residential plots. It also came in evidence that a vegetable and fruit market, a petrol pump and a complex consisting of 18 shops and a warehouse existed on the land acquired by the respondents. It also came in evidence of A.W.1 that a grain market also existed in the adjoining areas. Further, developed residential areas were also in existence in close vicinity to the acquired land, which is situated on the main Multan Road. The said witness was subjected to cross-examination but nothing came out to shake his credibility. Likewise, Malik Wajid Hussain A.W.2 and Malik Sohail Mukhtar, Naib Nazim of the town also appeared as a witness and categorically stated that portions of the acquired land was being used for commercial purposes, shops, petrol pumps and markets existed in and around the acquired land, which was undergoing rapid developed and is also developing as a residential area. Although the Land Acquisition Collector appearing as A.W.1 did not say anything about the character of land in his examination- in-chief, he admitted in his cross-examinaiton that damages had been paid to some property owner, who had petrol pumps, markets, warehouses and shops on the acquired land. Likewise, the Assistant Land Control Officer of the respondent authority also admitted that a market, warehouse, petrol pump and shops existed on the acquired land for which compensation was paid to the owneRs,
21. From the above analysis of the evidence of both parties, it is evident that the land in question was being used for commercial purposes and was fast developing as a residential area. In view of the law laid down by the superior courts, law and justice demand that the affected owners should be paid compensation keeping in view the value of the similar lands situated in the same locality and the future potentialities which is evident from the fact that evidence was brought on record showing rapid increase in the price of land between 1996 when notification under section 4 was issued and the year 2002 when the award was announced.
22. In the oral evidence, A.W.1 one of the appellants stated that at the time of acquisition, the market value of the land was Rs,1,00,000 per marla. He claimed that presently the price of similar lands in the same locality is more than Rs,5,00,000 per maria and around the land of the appellants, construction activity had taken place. It may be noted that the oral evidence produced by the appellants is consistent and inspires confidence.
23. In addition to the oral evidence, the appellants have brought on record the following documents in order to establish the increasing trend of price, and market value of similar land at the time'of announcement of the award:--- "Exh.A.2 Mst. Almas Perveen sold land measuring 2 marlas vide sale-deed registered on 21-7-1993, at the rate of Rs,40,000 per marlas.
' Exh.A.3 Mst. Farkhanda Begum sold land measuring 2 marlas, against Rs,80,000 vide sale-deed registered on 24-5-1994 at Rs,40,000/- per marla ' Exh.A.4 Mst. Jameela Begum and others sold land measuring 7 marlas, against Rs,3,00,000 vide Mutation No,4491 dated 18-8-1994. The price per marla, comes to Rs,44,444 per maria.
' Exh. A.5 Jameel Ahmad sold land measuring 0-01 maria against a sum of Rs,2,50,000 vide Mutation No,4243 sanctioned on 31-5-2000.
' Exh.A6 Pervaiz Ahmad etc. Sold land measuring 0-1 marla against a sum of Rs four lcs vide Mutation No,4109, sanctioned on 29-11-2000.
' Exh.A7 Malik Pervaz Ahmad etc. Sold land measuring 0-02 marlas vide sale-deed registered on 13- 10-2001 for Rs,2,50,000 along with malba amounting to Rs,50,000.
' Exh.A.8 Mst. Zubeda Younas sold land measuring 0-1 marla, vide sale-deed registered on 18-6- 2001 against a sum of Rs, 2,50,000 ' Exh.A.9 Mutation No,4678 dated 30-9-2001 shows that Justice Malik Muhammad Qayyum and others sold land measuring 0-01 maria against a sum of Rs, one lac.
' Exh.A.10 Mutation No,4699 shows that Muhammad Arshad sold land measuring 0-01 maria against a sum of Rs,4,50,000 ' Exh.A.11.Justice Malik Muhammad Qayyum sold land measuring 001 marla vide Mutation No,480 against a sum of Rs,1,00,000 ' Exh.A.12 Mst. Zubeda Younas sold land measuring 0-01 marla vide sale-deed registered on 19-8- 2008, against a sum of Rs, two lacs.
' Exh.A.13 Mutation No,4508 dated 30-5-2002 evidences that Mehboob Ahmad son of Muhammad Rafi sold land measuring 0-01 marlas vide registered sale-deed dated 13-5-2001, against a sum of Rs,2,20,000.
' Exh.A.14 Mutation No,4512 dated 15-6-2002 evidences that Mst. Rukhshinda lqbal sold land measuring 0-228 feet through sale- deed registered on 5-6-2002 against a sum of Rs,50,000.
' Exh.A.15 Mst. Memona lqbal sold land measuring 0-01 maria vide Mutation No,4720 sanctioned on 8-6-2002 against a sum of Rs,three lacs.
' Exh.A.16 Justice Malik Muhammad Qayyum sold land measuring 1 maria and 30 sq. Ft. Vide Mutation No,4677 sanctioned-on 30-9-2002, against a sum of Rs,one lac.
' Exh.A.17 Muhammad Mushtaq etc. Sold land measuring 0-8 marlas, vide Mutation No,4761 sanctioned on 16-1-2003, against a sum of Rs, five Lacs.
' Exh.A.18 Mutation No,4537 dated 30-7-2003, against a sum of Rs,two lacs.
' Exh.A.19 Mutation No,4925 evidences that Shafqat Ali sold land measuring 0-01 maria through sale-deed registered on 4-7-2003 against a sum of Rs,one lac.
' Exh.A.20 Sohail Mushtaq sold land measuring one maria vide Mutation No,4763 sanctioned on 16- 1-2003 against a sum of Rs,two Lacs.
' Exh.A.21. Allah Ditta sold land measuring 90-3 marlas against a sum of Rs,5,90,000/- vide Mutation No,4742 sanctioned on 16-1-2003.
' Exh.A.22 Shabbir Hussain sold land measuring 0-7 marlas against a sum of Rs four lacs: Vide Mutation No,4760 sanctioned on 16-1-2003.
' Exh.A.23 Malik Parvaiz Ahmad sold land measuring 0-01 marla against a sum of Rs, two lacs vide Mutation No,5014 sanctioned on 10-2-2004.
24. From a perusal of the documentary evidence adduced by the appellants, it stands established that the market value of similar lands and in the same locality ranged between Rs,40,000 to Rs,45,000 per marla in the year 1993-94 i.e. 2/3 years before the issuance of notification under section 4 of the Land Acquisition Act. The escalation in market price is evident from the subsequent sale transactions which took place between the years 2000 to 2003 ranging from Rs,1,00,000 to Rs,2,00,000 per marla. Nothing has been brought on record in rebuttal to the effect, either, that the prices mentioned were incorrect or that they related to land situated in other areas.
25. It is also evident that documents were placed on record indicating that some of the appellants had themselves sold certain portions of land owned by them in the same vicinity for prices ranging between Rs,1,00,000 to Rs,2,00,000 per marla in the time period between the years 2000 to 2001 and 2002.
26. There is no valid reason why the appellants should be forced to accept a lesser amount of compensation against similar property by reason of the fact that the same has been compulsorily acquired.
27. It is interesting to note that the learned trial court, after recording findings that the value of the acquired land reached between Rs,40,000/- to Rs,45,000/- per marla two years before it was acquired and having been convinced that the market price at the time of announcement of the award, had jumped to amounts in excess to Rs,1,25,000, proceeded to award compensation at the rate of Rs,50,000 per marla for which we do not find any justification. From the record, we find that:- --
(a) the market price of the land similar to and located in the same vicinity as the acquired land during the period 1993-94 ranged between Rs,45,000 to Rs,50;000 per marla;
(b) the market value of the land in the vicinity and similar in location of the acquired land in the year 2002-2003 ranged between Rs,1,00,000 to Rs,1,50,000 per marla;
(c) The acquired land had been put to and had the potential to be put to commercial and residential use which is evident from the fact that petrol pump, shops, markets and storage facilities had been constructed on the acquired land for which compensation/ damages had been paid. Despite recording evidence on the aforesaid factors which were duly supported by the evidence did not consider the future potentialities of the land and proceeded to use the estimated market price of land prevailing at the time of issuance of notification under section 4 of the Land Acquisition Act to calculate compensation payable to the appellants; and
(d) There was no credible evidence to rebut the aforesaid facts, which stood established on the record.
28. In view of the aforesaid findings and respectfully following the dicta of the superior courts including the principle of law laid down in Ramzan's case, we hold that for determining compensation before the award; the price of the acquired property at the time of publication of notification under section 4 of the Land Acquisition Act is only one of the factoRs, Other factors are equally important including future potentialities of the acquired property, which become evident from any price escalation occurring between the period of publication of the notification and announcement of the award and any developments affecting the nature and value of the property that takes place in the meantime. The trend of the superior courts in terms of award of compensation to the landowner is not to focus on the price, but to adequately compensate the citizen, who has been forced, against his will to give up his property. In this regard, the factors mentioned in section 23 of the Land Acquisition Act also have to be kept in mind.'
29. It is noticed that R. W.1 and R.W.2 who were witnesses produced by the authority admitted that land situated in very close vicinity to the properties owned by the appellants had been acquired for the purposes of overhead bridge at the rate of Rs,1,45,000 per marla. We are, merefore, inclined to hold that the average of the price prevailing at the time of publication of the notification under section 4 of the Land Acquisition Act and the price prevailing at the time when the award was announced would constitute a reasonable basis for calculating compensation payable to the appellants. Looked at from that angle using Rs,50,000 as the estimated price at the time of publication of the notification and Rs,1,25,000 per marla at the time that the award was announced, we conclude that an average of the two figures would furnish a reasonable amount of compensation to the appellants.
30. Accordingly, we modify the order of the learned referee court and enhance the compensation payable to the appellants to a sum of Rs,87,500 per marla. This shall be in addition to compulsory acquisition charges at the rate of 15% of the amount in excess of the compensation awarded by the Land Acquisition Collector and compound interest at the rate of 8% per annum. Resultantly, by allowing this appeal, judgments and decrees of the learned subordinate courts are accordingly modified.
31. For the aforesaid reasons, R.F.As. No,296-2010 and No,297- 2010 are allowed while connected R.F.As. No,597-2009 and No,598- 2009 are dismissed. .