' MUHAMMAD DAUD KHAN, J.--- Since the instant R.F.A. Bearing No,174-P of 2008 titled "Muzafar Khan v. Govt. Etc." and connected R.F.A. Bearing No,187-P of 2008 titled "Mukaram Gul v. Govt. Etc." arises out of the impugned judgment dated 30-09-2008 rendered by learned Additional District Judge-I/IZQ Dir Lower, therefore, these are being disposed of by way of this single judgment.
2. Backgrounds of the dispute as reflected from the record are that the appellants filed objection petition under section 18 read with section 30 of the Land Acquisition Act, 1894 (hereinafter called as Act) for assessm ent of proper compensation of the land acquired by the respondents vide Award No,3913 dated 21-07-2005. According to averments of :the petition, the respondents/University of Malakand were in need of land for expansion of physical and academic block and the property of the appellants situated at the Northern side of the University was acquired at the following rate: S.# Description Rate per Kanal
1. Aabi Land Rs,55,000
2. Barani Land Rs,45,000
3. Ghair Mumkin Land Rs,15,000
4. Land levelled for housesRs.45,000
5. Ghair Mumkin Abadi Rs,45,000
6. Land under Tube WellRs .55,000 ' Notification under section 4 was issued on 29-06-2002 and Award was announced on 21-07-2005 without giving an opportunity to the appellants for hearing; that the same Award is not acceptable because the property in question is situated adjacent to University, thus it is not only suitable for Abadi but also commercial in nature, therefore, carried highly potential value; that the notification under section 4 of the Act was issued in the year 2002, while Award was made in the year 2005, wherein price assessed on basis of one year average was relied upon and the Collector fixed the above compensation; that the amount of compensation was assessed at very meager rate arbitrarily ignoring all factors necessary for such assessment; that more property was taken into possession than entered in Award/mutation; that the appellants are entitled for enhancement of compensation along with compulsory acquisition charges and compound interest.
3. When put on notice by the Referee Court, respondents/ defendants contested the reference by submitting their written replies, wherein they raised several objections both legal and factual. From the divergent pleadings of the parties. The learned Referee Judge framed as many as 09 issues including relief and the parties were allowed to produce their evidence.
4. Thereafter, hearing both the parties, on conclusion of reference, the learned Referee Judge enhanced the rate of the land acquired by respondents including 6% simple interest vide its judgment dated 30-09-2008 in the following manner: S.# Description Rate per Kanal
1. Aabi Land Rs,100,000
2. Barani Land Rs,80,000
3. Ghair Mumkin Land Rs,25,000
4. Land levelled for housesRs.70,000
5. Ghair Mumkin Abadi Rs,60,000
6. Land under Tube WellRs .80,000
5. Aggrieved by the aforesaid judgment, the appellants have preferred the instant appeals before this Court.
6. We have heard arguments of the learned counsel for the parties and gone through the record of the case with their valuable assistance.
7. It appears from the record available on file that the property under reference was acquired by the respondents/University of Malakand while the appellants/objectors claimed its market value at the enhanced rate. It is imperative to note that the notification under section 4 of the Land Acquisition Act, 1894 was issued on 29-06-2002, while Award was made on 21-07-2005, though the future potential value and the inflation in prices during intervening period between issuance of notification under section 4 of the Land Acquisition Act, 1894 and the Award was considered by the learned Referee Judge while determining rate of compensation but it was not clear as to how the said amount had been determined.
8. The schedule of average price for four years or for that matter even of one year are not the only criterion for determination the amount of compensation but the "other material" brought on the file is quite relevant to determine the correct amount of compensation for the acquired land. The expression "market value" has not been defined in the Act. Likewise, yardstick of one year average in compensation in an acquisition case could not be applied to a case, without examining all the attending circumstances and analogies applicable to the acquisition in questions. Moreso, amount to be paid to owner for acquiring his land is not price thereto, but compensation which is always higher than price. Numerous factors have to be considered while forcing the owner to part with this property as against making payment to willing seller.
9. Though in the present case, the parties have never taken pain to request the Referee Judge for appointment of Local Commissioner to ascertain the status of the property, location and future potentiality in order to reach at a correct conclusion in determination of compensation to be awarded to the Objectors/owners but it was the bounden duty of the Court too, to appoint Local Commissioner as per provisions of Order XXVI, Rule 9, C.P.C. For the purpose of determination of market value/compensation of the land under reference. In our view, Court was bound to appoint local commission for determination of market value/compensation of land under reference and report of local commission were to be taken into consideration for determination of compensation.
Average could not be relied upon in such like cases without appointment of local commission. It is by now established that the appointment of Local Commissioner has become inevitable in cases of enhancement of compensation and Courts are required to consider the case for the purpose at the proper stage in order to avoid remand and to prolong litigation for considerably long time.
10.Without touching other merits of the case lest it prejudice the case of either party, we deem it appropriate to send the case back to the learned Referee Judge with the direction to appoint the Local Commission to determine the status of the property, location and future potentiality and decide the case afresh in the light of observations made above within shortest possible time but not later than six months positively strictly in accordance with law. The impugned judgment of the learned Referee Court is set aside and the instant appeals are allowed in the above terms. CM No,1026/2013 for impleadment being bereft of merits is dismissed while CMs Nos.1062/2013 and 51/2016 are hereby dismissed being infructuous.