' WAQAR AHMAD" SETH, J.---This judgment shall also dispose of the connected Regular First Appeals bearing Nos., 278, 42 ,272, 249,267,282,170,258,279,328,368,269,193,261,166,284,168,.271,367,198,273,276 ,263, of 2011, 234, 318, 264 and 369 of 2010, as they all have arisen out of Award No,164 dated 22-2- 1999, and common questions of law and facts are involved therein.
2. Brief and relevant facts leading to these appeals are that Land Acquisition Collector, Abbotabad on the request of Provincial Government Planning Environment and Development Department N.- W.F.P. Peshawar acquired the landed property, built-up-property, fruit bearing and non-fruit bearing trees of appellants/objectors at public expense for public purpose. The Land Acquisition Collector, Abbottabad on the basis of one year average commencing from 13-2-1997 to 13-2-1998 awarded compensation of the acquired land, which is reproduced as under:-- ' Bari Rs,21930/20 per kanal ' Maira.................. Rs,6999 per kanal ' Ghair Mazrooa... Rs,466/60 per kanal.
' Whereas, the Land Acquisition Collector, Abbottabad awarded the compensation amount of built up properties, fruit bearing and non-fruit bearing trees on the basis of reports of EADA, Abbottabad, DFO Gallies Division Abbottabad and X-en Building Division Abbottabad along with 15% compulsory acquisition charges.
3. Feeling dissatisfied, the affectees preferred the objection petitions under section 18 of the Land Acquisition Act, 1894 for enhancement of compensation amount of the acquired properties some of the affectess preferred objection petitions under section 30 of the Land Acquisition Act for apportionment of their shares in the acquired areas, which were referred by the Land Acquisition Collector to the referee Judge for adjudication. The rival parties contested the objection petitions and learned referee Court after recording pro and contra evidence and hearing the parties enhanced the compensation amount of the landed property to Rs,1,60,000 per kanal for all kinds whereas maintained the compensation of built up property as well as fruit bearing and non-fruit bearing trees as awarded by the Collector. Feeling aggrieved, Hazara University Dhodial, Mansehra through Registrar filed Regular First Appeals bearing Nos.278, 272, 267, 282, 258, 279, 269, 261, 284, 271, 198, 273, 276, 263, 265, 277, 262, 280, 281, 275, 283, 274, 268, 270, 260, 266, 259, 264 of 2010 against the judgments and decrees of the referee Court whereas the appellants/objectors filed Regular First Appeals bearing Nos.242, 249, 170, 193, 166, 168, 367, 198, 225, 179, 192, 245, 227, 178, 185, 370, 184, 160, 369 of 2010 for further enhancement of compensation amount of the acquired properties while the appellants in Regular First Appeals bearing Nos.236, 135, 328, 369, 189 of 2010, 74, 89 of 2011, 235, 234 and 318 of 2010 prayed for apportionment as well as for further enhancement of the acquired properties. Muhammad Ayaz Khan and another moved C.M. No,121 of 2013 for their impleadment being necessary party in R.F.A. No,236 of 2010 is allowed, as the same has not been opposed by the respondents, therefore, this CM is allowed and the applicants are arrayed as appellants.
4. Arguments of learned counsel for the parties have been heard at great length and record of the cases has been gone through with their valuable assistance.
5. A perusal of contents of Award bearing No,164 dated 22-2-1999 would reveal that initially notification under section 4 of the Land Acquisition Act, 1894 for acquisition of 1495 kanals 3 marlas was issued by the Land Acquisition Collector, Abbottabad vide No,32-36 dated 13-2-1998 whereas the notified area was proposed to be increased to 1549 kanals and corrigendum to the notification under section 4 was issued on 12-5-1998 and lastly another corrigendum for the acquisition of 986 kanals 14 marlas was issued on 13-2-1999 but it is strange that the Land Acquisition Collector instead of applying his independent mind as to the determination of the fair compensation of the acquired land based his award on the average price furnished to him by Tehsil Agency Abbottabad for the period w,e,f, 13-2-1997 to 13-2-1998 while the Award in 'question was announced on 22-2-1999.
6. Now it is settled law that the present trend of extra ordinary hike of landed property, the criteria of one year average cannot be made basis for assessment of compensation amount of acquired land. In case of acquisition of land, the land is acquired in the interest of general public at public expense on the basis of sacrifice of an individual, which requires to adequately compensating the A individual in extra ordinary manner and the compensation should be fixed in the light of criteria of a willing vendor and that of a needy vendee. In this regard wisdom can be drawn from case titled "Land Acquisition Collector and others v. Mst lqbal Begum and others" reported as PLD 2010 Supreme Court 719, wherein it has been held as under:-- "The principles laid down for determination of compensation reflect anxiety of law-giver to compensate those deprived of property adetjuately enough so as to be given gold for gold and not copper for gold" One year's average of sales taking place before publication of notification under section 4 of similar land is merely one of the modes of ascertaining market value and is not an absolute yardstick for assessment of compensation. Moreover, status of acquired land, its potentialities and its likelihood of development and improvement would be necessary factors for determining rate of compensation".
7. Thus, the compensation awarded by the Land Acquisition Collector in its award is not found according to legal, equitable criteria, which has been laid down under the law and the wisdom laid down by the Apex Court. Hence, for proper assessment of compensation the only available peace of evidence is the report of local commissioner appointed in the objection petition of 'Abida Jadoon v. Collector', who after spot inspection in presence of the parties, consulting the revenue record submitted a detailed report, which was confirmed by the referee court vide order sheet No,101 dated 28-3-2006, and no appeal/revision/writ petition was filed there against, which still holds the field. According to the report of local commission the compensation of acquired land as Rs,1,00,000 is fair one whereas adjacent property was earlier acquired through Award No,87 in 1992 and the compensation amount was enhanced by the High Court. The acquired property is situated in one compact block and objectors produced list of 22 mutations to the local commission and according to which compensation of the acquired land has been worked out to be Rs,1,60,000 per kanal. The assessm ent made by the local commission regarding compensation of acquired land irrespective of its kind as Rs,1,60,000 in the light of mutations and spot inspection is not only found reasonable but genuine, legal, proper, just and equitable according to the prevailing trend of hike in the prices of landed property, especially when admittedly the acquired land has a future potentiality as it is situated on the road side. In this respect this Court has already settled the principle for assessment of land so acquired in case of Sultan Shah and another v. Land Acquisition Collector Swabi and others reported as PLD 2011 Peshawar page 60, wherein it has been held as under:-- "Land acquisition---Compensation, of---Essential factor liable to be considered being potential value of acquired property in the light of future prospectus of similarly placed property--- "Yaksala" or "Punjsalas" could and should not be only considered for such determination".
8. Admittedly, the acquired property is situated near the road, which is not only important for commercial point of view but for the purpose of residential as well and the land situated near the road is always considered more valuable than the land situated at some distance from the road. In the instant case the initial notification was issued on 13-2-1998 followed by corrigendums dated 12- 5-1998 and 13-2-1999 and the award was announced on 22-2-1999, which fact has also not been considered by the Land Acquisition Collector at the time of announcement of impugned award.
The Land Acquisition Collector despite being aware of the situation of the acquired land has awarded very meagre amount of compensation and, as such, the amount enhanced by the learned referee Judge in no case is found either exaggerated or exorbitant keeping in view the high trend of prices of landed property in the area and is maintained.
9. A perusal of award would also show that none of the affectees raised any dispute or objection as to the apportionment of the acquired land, however, the Land Acquisition held entitled the persons to the compensation of Shamilat Land, who were found in possession of the same since 194849 and the learned referee Court in its judgments minutely consulted the revenue record and passed the impugned judgments and decrees regarding the shares of the affectees according to their entitlement as per record of rights. Learned counsel failed to point out any misreading or non- reading of evidence in this respect and, as such, the impugned judgments and decrees regarding apportionment are maintained.
10. Although the Land Acquisition Collector has awarded compensation for built-up-property, fruit bearing and non-fruit bearing trees as per reports of EADA, DFO Gallies and X-en Building Division Abbottabad but the objectors have neither produced any estimated costs of their built up property by any competent engineer nor any proof about the fruit bearing trees as to which kind of fruit trees were there and what was their annual income for the purpose of determination of enhanced compensation, so, the learned referee Judge, in view of the evidence on record, rightly held the objectors entitled to the compensation of trees and built up property, as assessed by the Forests Department and C&W department.