' ROOH-UL-AMIN KHAN, J.---Through this single judgment, I propose to dispose of the instant R.F.A.
No.35/2011 as well as R.F.As. Nos.54/2011, 72/2011 and 73/2011 as all the four appeals are the outcome of one and the same Award No.135 dated 23-9-1995 vide which land was acquired for construction of Flood Carrier Drain No13, CRBC Stage-II. WAPDA, D.I.Khan.
2. The brief facts giving rise to the instant appeals are that the acquiring department acquired the land of land owners through Award No. 135 dated 23-9-1995 for construction of Flood Carrier Drain No.3, CRBC Stage-II, WAPDA, D.I.Khan for a compensation amount of Rs.4852/per kanal. Aggrieved of the rate of compensation, the land owners filed reference petitions under section 18 of the Land Acquisition Act, 1894 which were referred to the learned Referee Judge, D.I. Khan. The learned Referee Judge framed issues from the pleadings of the parties and after hearing the arguments, accepted the reference petitions on 21-12-2010 and 23-12-2010 respectively and enhanced the rate of compensation from Rs.4852 to Rs.12,000 per kanal with 15% compulsory acquisition charges and 6% simple interest per annum from the date of taking over possession till the final payment of compensation.
3. Aggrieved with the above mentioned judgments and decrees, the land owners have preferred R.F.As. No.35/2011 and 54/2011 respectively whereas the acquiring department has impugned the judgments of Referee Court through filing R.F..As. Nos.72/2011 and 73/2011.
4. Learned counsel for the land owners contended that the land acquired is highly potential and being situated near village abadi, its value is tremendously high. They also contended that due to the approach of C.R.B.Canal, the prices of lands situated in the area have been increased to a high level; that the local commissioner in his report had assessed the market value of the acquired land as Rs.65,000 per kanal but the learned Referee Court failed to fix the same amount without any cogent and sound reasons.
5. Conversely, the learned counsel for the acquiring department argued that the learned Referee Judge has not properly appreciated the evidence available on file; that the Referee Judge has wrongly enhanced the compensation from Rs.4852 to Rs.12,000 per kanal along with 15% compulsory acquisition charges and 6% simple interest; that the land owners have failed to justify the enhancement but even then, the enhancement was totally in conflict to the principles laid down for enhancement of compensation.
6. I have considered the submissions of learned counsel for the parties and perused the record minutely.
7. Perusal of the record would reveal that the case in hand has a chequered history. Initially, the reference was filed in the year 1996 which was referred to the Referee Court on 12-3-1996. The learned trial Court, after recording pro and contra evidence of the parties, decided the case on 21- 9-2005 and enhanced the compensation from Rs.4852 per kanal to Rs.6000 per kanal. However, the judgment and decree dated 21-9-2005 was impugned before this Court in R.F.A. No.29/2005 which was allowed and the case was remanded to the Referee Court vide judgment dated 20-5- 2009, with the directions to appoint a local commissioner in order to ascertain the location of the land, its potential value and suitability of the building sites in view of the dicta handed down in various cases of the august Supreme Court as well as High Courts. The trial Court was further directed to assess the market value of the acquired land and its potential value in accordance with the criterion enumerated in section 23 of the Land Acquisition Act, 1894.
8. In compliance of order of this Court, the learned Referee Court appointed Mr. Aamir Farid Saddozai Advocate as commissioner, but his report was not confirmed and Miss Farhana Jabeen Advocate was appointed to visit the spot and submit her report in accordance with the directions of this Court. Her report too was rejected and for the third time, Haji Mohammad Shakeel, Advocate was appointed to comply with the order of this Court. His report received on 2-9-2010 was objected by the acquiring department. He was examined as C.W and during recording of his statement, it was found that the report was scanty of some very important information and guidelines provided by this Court, therefore, he was again directed to inspect the spot and submit a detailed report.
Resultantly, the same was submitted on 8-12-2010. After hearing the parties, the learned Referee Court while deciding the reference, enhanced the compensation to the tune of Rs.12,000 per kanal with 15% compulsory acquisition charges etc.
9. On scanning the record, it was found that in the close vicinity, the acquiring department acquired certain land of one Haji Abdur Rehman through same Award No.135 and its rate was fixed as Rs.4852 per kanal. The land owner Haji Abdur Rehman brought a reference for enhancement of the compensation and the Referee Court after examining all the material and report of the same commissioner i.e. Haji Mohammad Shakeel, accepted the reference and enhanced the compensation of land from Rs.4852 to Rs.1,00,000 per kanal along with other allied charges. It is also borne out of record that a chunk of land of the land owners in the instant case acquired by the acquiring department has been divided into parts, through construction of drain and the left over carved land on both sides of the drain has lost its utility. The record also depicts that the acquired land is situated near the village abadi, linked to main to Dera-Daraban road with mettled road.
10. In the year 1993, certain property was acquired for telephone exchange against a sale consideration of Rs.1,00,000 per kanal. The same property is situated in the limits of Dera Development Authority at a distance of 1/2 kilometer from the acquired land. Likewise, in the same year, the property of one Tahir Binyamin in Khasra No.770, Mouza Teekan was acquired by the Health Department for a sale consideration of Rs.1,00,000 which is also lying at a distance of 1/2 kilometer from the acquired land. The record further depicts that Mufti Mehmood Memorial Teaching hospital is situated at a distance of 11/2 kilometers from the property of land owners. The local commissioner, during his visit to the spot, has affirmed the above narrated situation in his report and has opined that in the year 1993, the market value of the acquired land was not less than Rs.65,000 per kanal and at present (i.e. In the year 2010), the market value in the vicinity is Rs.350000 to Rs.4,00,000 per kanal.
11. The site map prepared by the local commissioner would reveal that the acquired land of the land owners had assumed residential and commercial status due to construction of Mufti Mehmood Memorial Hospital, Gomal Medical C College, Radio Station, PTCL exchange and village abadi of mouza Teekan. Had the land of land owners been not acquired by the acquiring department, it would have been used for commercial purposes in the vicinity.
' The matter of fair compensation was raised before the august Supreme Court of Pakistan in Murad Khan's case (1999 SCM R 1447) and his Lordship Mr. Justice Mohammad Bashir Khan Jehangiri while speaking on behalf of the Bench, had scanned the entire law on the subject and laid down the criterion in the light of section 23 of the Land Acquisition Act for determination of compensation of compulsorily acquired land. In the judgment (supra), the august apex Court was pleased to rule that besides schedule of average for four years and even of one year, the other materials brought on the file are quite relevant to determine the correct amount of compensation.
In case of compulsory acquisition, efforts have to be made to find out what 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 the date of acquisition can also be kept in view in determining the fair compensation to be awarded to the owners who are deprived of their lands as a result of compulsory acquisition.
13. It is well settled law that the market value of the land as enumerated in section 23 of the Act ibid shall be the basis for determination of a compensation, but it must not be restricted only to the past sale of adjacent land or properties situated in the vicinity, rather the potential value of the acquired land shall also be considered at the time of determining the market value.
14. The market value of each and every land, even acquired through one and the same Award, shall be determined independently, strictly in accordance with the guidelines provided in Murad Khan's case .(supra). I have observed that the land acquired for construction of PTCL exchange, construction of Mufti Mehmood Memorial hospital were situated on the main Dera-Daraban road.
The price of the above referred land has rightly been determined by the acquiring department and therefore, the learned Referee Court while deciding the case of Haji Abdur Rehman has rightly fixed the compensation at the rate of Rs.1,00,000 per kanal at par with the adjacent land. Admittedly, the property of land owners in the instant case is situated at a distance of 1/2 kilometer from the above mentioned property, therefore, its potential value would not be treated at par with the said land.
15. The contention of learned counsel for the acquiring department that the land owners are not entitled to get compensation more than their claim in the reference is unpersuasive and without any substance. For determination of compensation, the claim of land owners is immaterial. The Courts are under legal obligation to determine the fair compensation irrespective of the claim of land owners as that may be less or exorbitant. The Court can award the amount of compensation over and above what has been claimed by the land owners in reference under section 18 of the Land Acquisition Act, provided sufficient material exists to justify the same. Wisdom may be derived from a judgment of this Court in the case of Sher Muhammad Khan and 4 others v. Land Acquisition Collector (PLD 1978 Peshawar 138). In case titled Sadaqat Ali Khan v. Land Acquisition Collector .(PL,D 2010 SC 878), the august Supreme Court of Pakistan was pleased to hold entitle those land owners who were satisfied with the compensation as determined by the Referee Court and had not questioned the said determination before any forum, for the same relief who had filed appeal against judgment of Referee. Court. It was emphasized in the judgment (supra) that the basic object behind the Court in the society was never just to administer law but was, in fact, to dispense justice and to ensure that the rights were delivered to those to whom they belonged.
16. It would not be out of place to mention here that after remand of the case from this Court, the learned Referee Court has made hectic efforts to dig out the exact market and potential value of the acquired property through appointment of local commissioner. It succeeded to do so by appointing Haji Muhammad Shakeel Advocate, but erred to partially disagree with his exhaustive and deliberate report. No doubt the report of the local commissioner is not binding on the Court, but when it supports the material evidence available on record, it may not be ignored.
17. Though the acquiring department had objected the report of the local commissioner before the Referee Court through fling objection petition, but could not bring on record an iota of evidence suggesting any illegality or irregularity in the report ibid. The acquiring department failed to refute the market value of the acquired land i.e. Rs.65,000 per kanal assessed by the local commissioner.
The local commissioner while inspecting the spot and submitting his report has considered all the relevant aspects in determining the value, potentiality of land and mechanism provided by section 23 of the Land Acquisition Act, 1894. In support of above observations, I am fortified by the judgments of august apex Court in cases titled Province of Punjab v. Jamil Ahmad Malik (2000 SCM R 870), Muhammad Saeed v. Land Acquisition Collector (2002 SCM R 407), Nisar Ahmad v.
Collector Land Acquisition (PLD 2002 SC 25) and Province of Sindh v. Muhammad Ramzan (PLD 2004 SC 512) and 2014 SCM R 75.
18. For the reasons mentioned above, I accept R.F.As. Nos.35/2011 and 54/2011 filed by the land owners and modify the impugned judgments and decrees of the learned Referee Judge to the extent that the rate of compensation of the acquired land of the land owners is further enhanced from Rs.12,000 to Rs.65,000 per kanal whereas the remaining judgments and decrees are maintained. However, R.F.As. Nos.72/2011 and 73/2011 filed by the acquiring department being without substance are hereby dismissed.