1. MUHAMMAD YOUNIS THAHEEM, J.---Through this single judgment, we are going to dispose of instant RFA No.105-P/ 2013 filed by acquiring authority and Cross Objection No.05/2014 filed by the land owners, against the judgment and decree dated 4.10.2012 passed by learned Senior Civil Judge, Mardan in Reference No.74/4 Neem of 201.1, whereby the compensation amount was enhanced to Rs.6000/- per marla.
2. Brief facts of the case are that vide Award No.63 dated 25.8.1998, the suit land was acquired by the Land Acquisition Collector for the purpose of remodeling of Nauranji Drain at Mauza Ghari Ismailzai, Tehsil and District Mardan and compensation for Barani land was fixed as Rs.1015/- per marla, for Banjar land as Rs.933/- per marla, for Chahi land as Rs.2375/- per marla, for Shah Nahri as Rs.2056/- per marla and for Ghair Mumkin as Rs.1107.18 per marla, along with 15% compulsory acquisition charges and 6% simple interest were fixed by the Land Acquisition Collector. The Land owners/ respondents (petitioners in Cross Objection No.05-P/2014) being aggrieved of the said compensation awarded by the Land Acquisition Collector, filed Reference/ Objection Petition under section 18 of the Land Acquisition Act, 1894 before the Land Acquisition Collector, which was referred to the Referee Court/Senior Civil Judge, Mardan, where the acquiring authority/appellants (respondents in Cross objection No.05-P/2014) were summoned who submitted their written statements. Thereafter issues were framed and the learned Referee Court after recording pro and contra evidence as well as hearing arguments of parties, dismissed the Reference vide order dated 8.3.2004. Aggrieved from the same, the land owners filed Regular First Appeal No.69 of 2004 before this Court which was allowed and the case was remanded back to the Referee Court vide judgment dated 27.1.2011, with the directions to the Referee Court to appoint commission for determination of market value/compensation amount, which are as under:-- "We allow this appeal, set aside the impugned judgment and decree dated 8.3.2004 of the Senior Civil Judge/Land Acquisition Judge, Mardan and send the case back to him for decision afresh by attending to the questions mentioned above, after appointing a local commission at the expenses of the appellants."
2. 3.After remand of the case, the learned Referee Court appointed Mr. Shakir Ullah, Girdawar Circle as local commission to visit the spot and conduct commission. However despite issuance of notices, the said local commission failed to attend the Court so another Revenue Officer (Retd.) Raj Bahadar was appointed as local commission who after conducting local commission submitted his report. The learned Referee Court while relying on the same report of local commission determined compensation of suit land as Rs.6000/- per marla along with 15% compulsory acquisition charges and 6% simple interest. Dissatisfied from the same, the instant Regular First Appeal was filed under section 54 of the Land Acquisition Act, 1894, by the acquiring authority whereas the land owners have filed Cross Objection No.05-P/2014 for enhancement of compensation as Rs.15000/- per marla.
3. 4.It is pertinent to mention that 12/13 other Regular First Appeals and Cross objection were also clubbed and fixed together with the instant RFA for today but at the request of both the learned counsel for the parties, the instant RFA along with cross objection were separated/de-clubbed from other RFAs as these pertained to award No.63 only.
4. 5.Arguments heard and record perused.
5. 6.From the perusal of record it reveals that after remand, the local commission was appointed by the learned Referee Court, who submitted his report on 21.10.2011 consisting of eight pages, which was objected by both the parties through filing their respective objections. Thus the said local commission was examined by the learned Referee Court as CW.1 on 23.5.2012 by affording opportunity to cross examine him but was not cross examined by both the parties, so after hearing the parties, the learned trial Court determined the compensation amount impugned herein by both the parties.
6. 7.Perusal of Award No.63 Ex.OW.I/O, reveals that the Collector Land Acquisition while determining the compensation amount in the impugned Award, unilaterally relied upon a circular issued by Board of Revenue bearing No.13436/Rev;V/LA-318 dated 20.6.1998 and did not pay any heed to all aspects for the purpose of determination of compensation amount regarding nature of land, i.e., its market value, its proximity to the roads, building sites so the learned Referee Court in compliance of the direction set forth by this Court vide its judgment in RFA No.69 of 2004, appointed local commission who submitted his report Ex.CW.1/1, and during examination in the Court as CW.1, he was not cross examined by any party. Thus the arguments of learned counsel for appellants/acquiring authority at this stage that local commission has assessed high market value is not convincing as the local commission was not cross examined by the appellants which amounts to admission of his opinion about determination of compensation.
7. 8.Similarly the land owners also did not cross examine the local commission so now through cross objection, their arguments that the local commission has fixed a very meager amount of compensation and the market rate of acquired land at that time was as Rs.15000/- per marla, is not tenable.
8. 9.From perusal of report of local commission, it divulges that he had prepared site plan of Garhi Ismail Zai road, showing that a road namely Gumbat Dubian, leads to north of Garhi Ismailzai, Mardan road so the report of local commission was rightly taken into consideration and relied upon by the Referee Judge being admitted by both the parties by not cross examining him while appearing as CW.1.
10. The provisions of Section 23 of Land Acquisition Act, 1894 provides a set of guidelines in various matters for taking into account at the time of determination of compensation. The market value is only one of such matters to be considered by the Collector or Referee Court and would mean that a willing purchaser would have paid compensation for acquired land to a willing seller which would be a price fixed between them. In this respect wisdom is derived from the judgment of Hon'ble Supreme Court of Pakistan cited in 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."
9. 11.Likewise, in another case reported as PLD 2010 Supreme Court 719(a), it was also held by the apex Court that:-- "Potentiality of land should not be determined merely at the time of issuance of notification under section 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.
10. Potentiality of land cannot be determined without examining its future prospects; therefore, compensation cannot be based merely on the basis of "past sales."
11. It has also been held in the above cited judgment that:-- "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.
12. For assessment of status of acquired land its potentialities and its likelihood of development and improvement would be necessary factors for determining rate of compensation. What a willing purchaser would have paid for the land in question."
13. 12.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.
14. 13.For what has been discussed above coupled with the referred judgments of apex Court, we found the findings of learned Referee Court being based on correct appreciation of evidence and law who had rightly relied upon the report of commission which was not objected by the parties by not cross examining him while appearing as CW.1, which needs no interference by this Court.
15. Resultantly, the instant Regular First Appeal along with Cross Objection No.05-P of 2014 being devoid of any force are dismissed.