' ROOH-UL-AMIN KHAN, J.---Feeling aggrieved from the judgment and decree dated 15-2-2012 passed by the learned Additional District Judge-III/Referee Judge D.I.Khan, whereby the quantum of compensation of their land acquired by the Government for the construction of D.I.Khan-Serai Gambila Project (55) was enhanced from Rs,4000 per kanal to Rs,5,343/50 per kanal together with the requisite acquisition charges, the land-owners/appellants herein, namely, Hamid Khan etc; have questioned the same through the instant appeal praying for adequate enhancement of compensation of their acquired property as prayed in the Reference petition.
2. Facts of the case leading to the filing of the appeal in hand are that some landed property of the appellants fully described in the Reference situated in Mouza Muqeem Shah, Tehsil and District D.I.Khan, was acquired by the Land Acquisition Collector D.I.Khan for the construction of D.I.Khan- Serai Gambila Road Project (N-55) NHA vide Award No-8 announced on 8-10-2008 by fixing its compensation at the rate of Rs,4000 per kanal and notifications in this respect under sections 4, 6, 7 and 17 of the. Land Acquisition Act were accordingly issued. The land-owners/appellants herein were unhappy over the aforesaid determination of the compensation of their acquired land and, therefore, they filed reference petition before the learned Referee Judge who vide judgment dated 10-4-2010 accepted the same and enhanced the market value of the acquired property. From Rs,4000 per kanal to Rs,2,00,000 per kanal and kept intact the other requisite charges. Being unhappy over the said verdict of the learned Referee Judge, the National Highway Authorities challenged the same through R.F.A. No,49 of 2010 before this Court which was accepted with the mutual consent of the parties and the case was remanded to the Referee Court for appointment of a Local Commissioner to inspect the spot in presence of the parties and prepare his report keeping in view the potential value of the suit property. The needful was accordingly done and thus on 13-2- 2012, statement of the Local Commissioner was recorded as CW-1. After considering the data available on record, the learned Referee Court enhanced the market value of the suit property from Rs,4000 per kanal to Rs,5343/60 per kanal with 6% simple interest from the date of possession till date and 15% compulsory acquisition charges vide judgment and decree dated 15-2-2012. The land-owners are still not satisfied with the said enhancement and again the same through the appeal in hand.
3. I have carefully considered the arguments of the learned counsel for the parties in the light of record of the case.
4. The claim of the appellant that the acquired land is commercial in nature is unimpressive and not proved from the record. The revenue record placed on file; during the trial, clearly reflects that the property in question is Barani in nature'. The attorney of the appellant (P. W.4), while recording his statement before the trial court showed his inability to produce any proof in support of his claim regarding commercial A nature of the property. It is further evident from the record that the acquired land is situated far away from the District Headquarter in a backward area, therefore, there is no probability, that the same would be Converted into the commercial property in the near future. The Local Commissioner, in compliance of the order of the court, visited the spot and has submitted a comprehensive report along with the site plan, from which it can be easily gathered that the property in question is `Barani Agricultural'.
5. The record further depicts that the District Officer, (Revenue and Estate) D.I.Khan had determined the market value of barani agricultural land and nehri agricultural land/commercial land as Rs,25,000 and Rs,60,000 per kanal respectively. In this respect, the relevant para of Award No,8 dated 8-10-2008 is worth perusal, which is reproduced as under:-- "(c) COMPENSATION. Notification under section 4 of the Land Acquisition Act, 1894 was published on 4-4-2006. The District Officer Revenue and Estate/Collector D.I.Khan was requested to provide market rate of the land under acquisition according to the classification of land. He accordingly vide his letter No,100/TLA(R)-NHA dated 1-3-2007 (copy placed on file) provided one average rate based on the sale mutations attested during one year prior to the date of publication of notification under section 4 for Agricultural land @ Rs,5771/02 per kanal. He also provided market rate of Barani agricultural land @ Rs, 25,000 per kanal and Rs,60,000 per kanal for nehri agricultural land. He also provided market rate for commercial/residential land Rs,60,000 per kanal. However, later on he withdrew the above referred letter vide No,281/TLA.(R)-NHA dated 5-5-2007. He then reviewed the above referred rates and provided one year average rate for Nehri/Nal Chahi Land Rs,15,203/99 per kanal and market value Rs,16,724 per kanal, vide his office No,348/TLA(R)-NHA dated 28-5-2007. He also provided average rates for Rod Kohi/Barani Land Rs,1,119/48 per kanal and market rate @ Rs,1,231 per kanal. However, he ignored to give rates for other classifications."
6. The learned Referee Judge has not taken into consideration the above position, i,e, change in market value, at the time of passing the impugned judgment. The record further indicates that in another case entitled Janat Khan v. Chairman NHA and others (Land Acquisition Ref No,18/IV of 2011 decided on 23-12-2011, the learned Referee Judge has enhanced the market value of land-owner, namely, Janat Khan, from Rs,4000 to Rs,25000 per kanal in the same Award No,8 dated 8-10-2008 in same Mouza Muqeem Shah, where some of his landed property was acquired for the same, but has determined the market value of property of the appellants to a lesser amount which is against all the norms of justice and equity. The learned trial Judge was legally required to have adopted one and the same yardstick, while determining the market value of the acquired land of the appellants. The Referee Court has failed to ensure justice and has treated the appellant discriminately, which is violative of the dicta laid down by the honourable Supreme Court of Pakistan in the land-marked judgment entitled Sadaqat Ali Khan through L.Rs, and others v. Collector Land Acquisition and others PLD 2010 Supreme Court 878), wherein it was held as under:-- "Once a judicial determination, be it of a point of fact or of a point of law, has been made and if such a determination covers the ones litigating before the courts but some others also, then the dictates of justice would command that the benefits accruing from such a determination should not be restricted only to the litigating parties but should be extended even to those who had not indulged in litigation unless there were some extraordinary unexceptionable reasons to the contrary and that all powers, including the powers inherent in the courts be invoked for the purpose. Such would not only ensure justice for all but would also have the effect of eliminating unnecessary litigation. It would be highly unjust and against the established norms of equity, fair play and good conscience if some of the landowners were allowed compensation for their acquired land at a much higher rate than the others owning similar lands only because the said others had not opted to drag the concerned land acquiring authorities to the courts of law".
6. The record was thrashed out thoroughly but I could not find any justification for issuance of letter dated 1-3-2007, whereby the market value/compensation was reduced to Rs,4000 from Rs,25,000 for Barani Agricultural land. Even the letter bearing No,100/TLA(R)-NHA dated 1-3-2007 allegedly issued by the DOR D.I.Khan has not been produced by the respondents to justify the fixation of market value of the suit property at Rs,4,000 per kanal. As such, the impugned findings of the learned Referee Judge are not based on correct legal footings and are liable to be set at naught.
7. As a result, while placing reliance and drawing wisdom from the case-law reported as Saddaqat Ali Khan through L.Rs, and others v. Collector Land Acquisition and others (PLD 2010 Supreme Court 878), Government of N.-W.F.P. And others v. Mst. Jamshed Bibi and another (PLD 1997 Peshawar 19), this appeal is partially accepted, the impugned judgment and decree of the learned Referee Judge is modified to the extent of market value of the suit property. The price of the acquired land of the appellants is enhanced from Rs,5343/60 per kanal to Rs,25,000 per kanal, while the other acquisition charges mentioned in the impugned judgment shall remain intact.