ROOH-UL-AMIN KHAN, J.---Being dissatisfied with the judgment & decree dated 23.9.2010, passed by learned Additional District Judge-II/Referee Court, Mardan whereby the compensation of acquired land under the impugned Award No, 36 dated 2.2.2009, was enhanced from Rs, 2318/- to Rs, 100,000/- per marla with 15% compulsory acquisition charges and 6% simple interest, the land owners (herein after referred to as the Appellants) have filed instant appeal against the respondents (herein after referred to as Respondents).
2. Brief but relevant facts of the instant appeal are that through Award No, 36 dated 2.2.2009, the Acquiring Department acquired a piece of land measuring 74 kanals & 7 marlas, situated at Moza Behram Khan, Tehsil &. District Mardan, for the construction of Mardan-Swabi Bypass Road. The acquisition proceedings were initiated by invoking the provisions of section 4 of the Land Acquisition Act, 1894, under which notification dated 27.3.2008 was issued and published followed by proceedings under section 17(4) and (6) of the Act (ibid), by issuing the requisite notification.
Likewise, notice in terms of section 9 was issued to respondents-land owners and ultimately the Land Acquisition Collector published the impugned award, whereby the quantum of compensation @ Rs, 2318/- per marla alongwith 15% compulsory acquisition charges were determined for the said. Land. Having felt aggrieved with the rate of compensation assessed in the award, the appellant herein, filed Reference under section 18 of the Land Acquisition Act, 1894 before the Additional District. Judge-II, Mardan.
3. The learned Referee Court, on conclusion of trial, vide impugned judgment & decree dated 23.9.2010, enhanced the compensation amount from Rs, 2318/- to Rs, 1,00,000/- per ,marla alongwith 15% compulsory acquisition charges and 6% interest from the date of possession till the payment. Still feeling aggrieved, the appellants have filed the instant appeal.
4. Arguments of learned counsel for the parties heard and record gone through carefully with their valuable assistance.
5. Admittedly the land of appellants were acquired by the respondent-Provincial Government for construction of Mardan-Swabi bypass road @ Rs, 2318/- per marla, vide award No, 36 dated 2.2.2009 on the basis of one year average. The appellants, by filing reference before the Referee Court, have claimed that the per marla price of the acquired land, at the time, of acquisition was more than Rs, 2,00,000/- whereas the respondents-department have assessed a very meager amount of Rs, 2318/- per marla. During the trial, appellants produced Patwari Halqa and examined him as PW-3 who placed on file certain sale-deeds and mutations showing the transactions in the nearby vicinity prior to acquisition of the laud of appellants. Similarly (Pir Kamil Shah) PW-2, Head Clerk. Of Land Acquisition Collector Mardan was 'examined, who disclosed the condition and position of the area and location of the land under acquisition. Arshad Khan, Patwari Halqa recorded his statement as PW-3, according to which the land of appellants is situated on main Nowshera-Mardan Road, surrounded by residential and commercial properties. Likewise Malik Farhad (PW-4) attorney of the appellants averred in his statement that the acquired land is highly potential and valuable being situated on the main Nowshera-Mardan Road which is suitable for residential and commercial Abadi. He disclosed that all the basic facilities i.e, electricity, telephone and water are available in the vicinity as well as the acquired land being situated on the bank of metaled road is suitable for construction of shopping center and fuel filling station. The potentiality and prime elevated status of the land coupled with the location and market price in the vicinity have not been considered by the acquiring authority. He claimed that the value of the acquired land is not less than Rs, 3,00,000/- per marla at any cost. The statement of PW-4 was further supplemented by the respondent's witness namely Usman Nabi who appeared and recorded his statement before 'the referee Court as' RW-1, wherein he admitted it correct that the land of present appellants are situated on main Nowshera-Mardan road, now known as Mardan-Swabi bypass road which is surrounded by every kind of commercial as well as residential properties. He also admitted it correct that on the main Nowshera road the petrol pumps, CNG' fillings stations, Industrial Estate of Sheikh Maltoon Residential Town are situated.
6. The controversy with regard to the fair compensation was raised before the august Supreme Court of Pakistan in case titled Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another (1999 SCMR 1467) wherein after scanning the entire case-law on the subject, the august Court was pleased to observe that the schedule of average price for four years or for that matter even of one year is not the sole criterion for ascertaining the amount of compensation, rather the material brought on the record with regard to location, potentiality and market values of the acquired land is also to be considered It was emphasized that the best method for working out the market value would be the practical one of a prudent mind laid under Article 2 of the Qanoon-e-Shahadat Order, 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 a willing seller. In the case in hand, plethora of evidence has been produced showing the potentiality and nature prospect of the property. As per Exh.PW-315, not controverted by the respondents-department, the acquired land is situated on main Nowshera-Mardan road where all the civic facilities area available. In the recent past this Court while deciding several appeals through single judgment dated 1.10.2015, rendered in Regular First Appeal No, 277/2013 with regard to inadequate compensation of land adjacent to the lands of appellant, has determined the market value of land to the tune of Rs, 125,0001- per marla, on the basis of average price of the land in the surrounding vicinity, alienated in-between 2005 and 2008. The learned counsel for respondents when confronted with the above position, he could not wriggle out of the situation, however stated that the award and purpose of acquisition in the above-referred appeals were different from the instant one.He, in lukewarm manner, admitted the fact that the properties acquired through both the awards are situated in the same vicinity. There is no cavil to the proposition that the rate of compensation determined by the Collector for acquisition of land in one award shall not be made applicable to the land acquired through another award, rather for determination of fair rate of compensation of the acquired land the peculiar facts and circumstances of each case to be taken into account separately. However in the instant case, the land acquired through both the awards have the same characteristics being situated adjacent to each other. In such an eventuality, the compensation awarded to the adjacent owners cannot be overlooked. It is settled law that the best mode of determination of the market price would be to take into consideration the instance of sale of adjacent land made shortly before or after the notification under section 4 of the Land Acquisition Act, 1894. In the case in hand, it transpired from the un-rebutted evidence .On record that the acquired property is situated near Nowshera- Mardan dual carriage road duly linked with a double Mardan-Toru road where all the modern civic facilities like schools, colleges, fuel, CNG filings stations and commercial community centre are situated. The suit property and land acquired through Award No, 48 dated 15.2.2010 situated in the same moza in Behram Khan Kalay Mardan are adjacent to each other, where the price of land has been assessed by this Court in RFA No, 277/2013, to the tune of Rs, 125,000/- per marla. From the above discussion it, is manifest that the average price of the land in the surrounding area is not less than Rs, 125,000/- per marla. Thus keeping in view the nature, location, market value, rate in the close proximity of laid and deriving wisdom from the principle enunciated by august Supreme Court of Pakistan in cases titled, (i) Province of Punjab v. Jamil Ahmad Malik (2000 SCM R 870), (ii)
Muhammad Saeed and others v. Collector Land Acquisition and others (2002 SCM R 407), (iii) Nisar Ahmad Khan v. Collector Land Acquisition Swabi and others (PLD 2002 SC 25) and (iv) Province of Punjab through Land Acquisition Collector and others v. Begum Aziza (2014 SCM R 75), the market value of the land acquired through Award No, 36 dated 2.2.2009 is assessed as Rs, 125,000/- per marla with 15% compulsory acquisition charges and 6% simple interest from the date of acquisition till final payment.
7. In view of the above, the instant appeal is allowed, the impugned judgment & decree dated 23.9.2010, passed by the learned Referee Court, is modified to the extent that besides 15% compulsory acquisition charges and 6% simple interest from the date of acquisition till final payment, the appellants are entitled to the compensation of the acquired land @ Rs, 1,25,000/- per marla.