' Through the instant Regular First Appeal Bearing No, 56-D of 2013 filed under Section 54 of the Land Acquisition Act, 1894, (hereinafter to be referred as the Act), Ghulam Yahya and four others, the appellants, have called in question the, legality and propriety of judgment and decree dated 27/7/2013 rendered by the learned Senior Civil Judge/Referee Judge D.1 Khan, whereby reference petition of the appellants under Section 18 of the Act ibid was allowed in terms that the price of their acquired land was enhanced from Rs, 3850/20 to Rs, 25,000/- per kanal coupled with the other requisite acquisition charges and have prayed that the price so fixed and determined by the Referee Court is not in consonance with the prevailing market value of the acquired land which needs further enhancement to the tune of Rs, 30,000/- per kanal and similarly the WAPDA (acquiring department) is also aggrieved from the aforesaid impugned judgment and decree of the learned Referee Judge and have assailed the same through Regular First Appeal No, 107-D of 2013 praying for setting aside the impugned judgment and decree and to restore the compensation of the acquired property as fixed in the Award No, 249 announced by the Collector on 28/5/2002.
2. Since both these appeals are the outcome of one and same judgment and decree of the learned Referee Judge dated 27/3/2013, therefore, this single judgment is directed to dispose of both these matters.
3. This case has a chequered history as this is the second round of litigation between the parties when they have approached this Court separately by filing two different appeals.
4. Brief facts of the case are that vide Award No, 249 announced on 28/5/2002 by the Collector Land Acquisition D.I Khan, some landed property of Ghulam Yahya and four others, (the appellants of RFA No, 56-D of 2013) was acquired for the construction of Disty No, 08 CRBC Stage-III WAPDA D.I Khan and compensation of the acquired land was fixed at Rs, 3,859/20 per kanal of the said award which is Ex.PW-2/4 on the record.
5. Being unhappy over the said determination/fixation of per kanal price of their acquired property, the land-owners preferred an application before the Land Acquisition Collector CRBC Project WAPDA D.I Khan for referring the matter u/S. 18 of the aforesaid Act to the learned District Judge D.I Khan for determination of correct market value of their acquired land alongwith other necessary acquisition charges, inter-alia, on the grounds that the impugned Award was announced in their absence and thus they were condemned unheard, that the price so fixed and determined by the Collector is very meager and flimsy, that the one year average has incorrectly been prepared to benefit the acquiring department; that a huge lot of property was acquired by the WAPDA and the landowners have sustained sufficient financial loss; that the land in question is of high potential value being located on Indus Highway and thus its price so determined and fixed by the Collector is not acceptable to them.
6. The said application of the landowners was accordingly referred to the learned District Judge D.I Khan, who entrusted the same for adjudication to the learned Senior Civil D.I Khan who registered it as Land Acquisition Petition No, 43/4-Neem of 2002/2013. The learned Referee Judge summoned the respondents who appeared and hotly contested the reference petition by filing their written reply: The divergent pleadings of the parties gave birth to the framing of six issues including relief.
Thereafter, pro and contra evidence of the parties were recorded and the learned Referee Court on evaluating the evidence brought on record and considering the arguments of learned counsels for the parties addressed at the bar, vide judgment and decree dated 08/7/2011 accepted the reference petition of the Objectors (present appellants Ghulam Yahya etc;) and enhanced per kanal price of the acquired land from Rs, 3859/20 to Rs, 6,000/- alongwith 15% compulsory acquisition charges and 6% simple interest.
7. Both the parties were not contented from the aforesaid verdict of the learned trial Judge, therefore, they separately assailed the same through two appeals before this Court bearing RFAs No, 232 and 264 of 2011.
8. When these appeals came up for hearing, learned counsel for both the parties stated at the bar that since the learned trial Court had not appointed any local commission for spot inspection and without the report of local commission, the determination of exact market value of the suit property was not possible, thus on their mutual consent, the appeals were accepted, the impugned judgment and decree dated 8/7/2011 of the learned trial Court was set aside and the case was remanded to the Senior Civil Judge/Referee Judge D.I Khan with the direction to appoint a local commission for spot inspection and after submission of his report to decide the matter afresh in accordance with law within a shortest possible time, preferably within a month, vide judgment dated 1/7/2013. The relevant portion of the remand order / judgment is reproduced below:-- "At the very outset the learned counsel for the parties stated that in the instant case, the learned trial Court has not appointed any local commission for spot inspection and without the report of local commission, the determination of exact market value of the suit property is not possible. They mutually agreed that on acceptance of the appeal the impugned judgment and decree may be set aside and the case may be remanded for. Decision afresh, after appointment of local commission."
9. The aforesaid portion of judgment transpires that the commission was appointed by the learned Referee Judge with the consent of both the learned counsel cf the parties, so no exception could be taken by the parties at this stage against the very appointment of Local Commission and determination of market value or compensation suggested by the local commission. Wisdom in this regard is derived from the judgment of the Apex Court reported as "Bahi Khan and others vs. Shakeel and others" 2009 SCM R 594, wherein it has been held that:- "Appointment of local commissioner by High Court for spot inspection with consent of both the parties agreeing to be bound by his report.... Once having given consent for appointment of commissioner and to be bound by his report, defendant could not be allowed to turn ground and object to such report."
10. In compliance to the above said orders of this Court dated 1/7/2013, the learned trial Court vide order dated 18/07/2013 appointed Mian Jamshed Advocate as Ahle/Local Commission who visited the spot in presence of the parties and Patwari Halqa on 21/7/2013 and thus submitted a comprehensive report before the trial Court on 24/7/2013. According to his report, market value of the acquired land was having the value of Rs, 25,000/- per kanal at the time of acquisition.
11. Thereafter, objections of the parties were invited on report of the local Commission which they did and statement of the local Commissioner was recorded as CW-1. Report of Commission is Ex.PW-1/1 which consists of 34 sheets including site plan, statements of some persons and other documents.
12. The learned trial/Referee Judge scanned the entire materials brought on record including the report of Local Commission. Thereafter arguments of learned counsels for the parties were heard and the compensation amount of the acquired land was determined at the rate of Rs, 25,000/- per kanal as per report of the Local Commissioner.
13. I have heard and anxiously considered the valuable arguments of learned counsels for the parties and have thoroughly examined entire record of the case.
14. The learned Referee Court has determined the market price of the acquired land keeping in view all aspects of the case i,e, the nature of land, its market value, its proximity to the road, building sites and future potentiality. The respondents had not been able to produce any contradictory market value or its less potential value with reference to the building sites and the Abadi Deh in the neighborhood. Thus the learned Judge Land Acquisition/Senior Civil Judge D.I Khan vide his judgment and decree dated 27/7/2013 accepted the reference petition and enhanced the price of acquired land from Rs, 6,000/- to Rs, 25,000/- per kanal alongwith 15% compulsory acquisition charges and 6% simple interest from the date of possession till final recovery of the amount, minus the amount, if any, already paid to the landowners.
15. Now this is the second round of litigation between the parties that they are still not satisfied over the aforesaid enhancement by the learned Referee Judge vide judgment and decree dated 27.07.2013 and have questioned the same through the instant two appeals.
16. The moot question for determination before this Court is that whether the determination of compensation based on the report of local commission is on correct legal footings or otherwise.
17. In this respect, Section 23 of the Land Acquisition Act, 1894 deals on the subject which provides various matters for taking into account while determining compensation. Market value is only one of such matter to be considered by the Collector or Court and mean would me that a willing purchaser would have paid for acquire land. Compensation of the acquired land has a wide term indicating that landowner for variety of reasons is to be compensated and not merely paid the price of the acquired land, which would be just a price determined through the interaction of twin forces of supply and demand or fixed between a willing buyer and a willing seller. Reliance in this context is placed on case law reported as PLD 2004 Supreme Court 512 (a) which reads as follows:- - "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 the collector or Court.
Compensation is a very wider term indicating that landowner for various reasons is to be compensated and not merely paid the price of land which is just and interaction of supply and demand fixed between a willing buyer and a willing seller."
18. To the same effect is the judgment of Honourable Supreme Court of Pakistan reported as 2010 Supreme Court 719 (a). It would be advantageous to reproduce the same which is to the effect that:--
(a) Potentiality of land should not be determined merely at the time of issuance of notification u/S. 4 of the Land Acquisition Act, 1894 but it should also be with reference to the use to which land is reasonably capable of being put in future.
(b) Potentiality of land cannot be determined without examining its future prospects; therefore, compensation cannot be based merely on the basis of "past sales."
19. Similarly, in the same judgment it has been held that:--
(c) The principles laid down for determination of compensation reflect anxiety of law giver to compensate those deprived,of property adequately enough so as to be given for gold and not copper for gold;
(d) Various factors have to be taken into consideration i,e, 'the size and shape of the land, the locality and its situation, the tenure of property, the use its potential value, and the rise or depression in the value of the land in the locality and even hi its near vicinity. In our view real, proper and potential value, keeping in view all the relevant factors have been determined and it is unexceptionable;
(e) For assessm ent of status of acquired land its potentialities and its likelihood of development and improvement would be necessary factors for determining rate of compensation;
(g) What a willing purchaser would have paid for the land in question.
20. The above head a note of citation of the referred judgment is sufficient to note that the above factors were not considered by the Land Acquisition Collector while announcing the Award.
Moreover, mere classification or nature of land could not be taken as a single relevant factor for the determination of market value or compensation, so location of the acquired land, its potentiality, neighborhood or escalation of price and other benefiting factors for landowners could not be ignored at the time of determination of compensation but shall be taken into consideration.
21. The site plan. Prepared and other material collected by the local commissioner during spot inspection placed on record as Ex.CW1/1 shows its potential value with reference to its vicinity and neighborhood.
22. Perusal of record discloses that while, submitting his report, the Local Commissioner has prepared site plan which is available on file as Annexure "C" which indicates that the acquired land is agriculture in nature and irrigated through perennial system of irrigation, which is further supported by its pictures drawn by the Commission annexed as 'D'. The agricultural nature of the acquired land is also not doubtful because the Local Commission while inspecting the spot was accompanied by Patwari Halqa. He has considered an the legal and factual aspects of the case and has furnished a comprehensive and detailed report showing various famous buildings in the vicinity and the road while proposing the market value of the acquired land as Rs, 25,000/- per kanal to which no vital deficiency was pinpointed by the counsel for objectors / (Wapda) at the relevant time, neither they have any other cogent evidence regarding suggested market value before the Referee Court nor learned counsel for the landowners (appellants) could brought on record any cogent proof in respect of market value to be more than Rs,30,000- per kanal. So the report of local commission was rightly taken into consideration and relied upon by the learned Referee Judge.
23. For the reasons discussed above and deriving wisdom from the ratio of judgments of the Apex Court referred to above, the findings of the Court below are based on correct appreciation of evidence as well as report of local commission, which need no interference by this Court, hence, upheld. Resultantly both the appeals being bereft of any merits are dismissed.