The supra titled appeal has been directed against the judgment and decree passed by the learned Reference Judge Mangla Dam Raising Project Mirpur dated 20.09.2008, whereby the Court below enhanced the compensation amount @ Rs. 20,000/- P.K along-with 15% CAC.
2. Brief facts forming the background of the instant appeal are that respondents through Award No. 104/2007 dated 16.07.2007 acquired land of appellant comprising Khata No. 153 Khewat No. 42 measuring 30 kanal situated in Village Arnoo Tehsil & District Mirpur for up-raising of Mangla Dam.
Feeling aggrieved from the said award, petitioner/appellant, herein, filed a reference before the learned Reference Judge on 04.09.2007 On filing of the reference, respondents were summoned by the Court below, who filed objections whereby the claim raised in the reference was refuted in toto and submitted that the compensation of the acquired land was rightly been assessed by the Collector while keeping in view the market value of the land and finally requested for dismissal of the reference. The learned Reference Judge in the light of pleadings of the parties framed as many as 8 issues and directed the parties to lead their evidence. On completion of the trial, the learned Court below enhanced the compensation amount of the acquired land @ Rs. 20,000/- P.K along- with 15% CAC, hence, the above titled appeal.
3. Mr. Imtiaz Hussain Raja, Advocate, the learned counsel for appellant, submitted that the appellant is not compensated according to prevailing market value of the awarded land. He next contended that the future potential value of the land under acquisition has to be taken into consideration by the Collector but this crucial aspect has not been considered while assessing the value of the land. The learned counsel further contended that the market value of the land may be enhanced @ Rs. 30,00,000/- P.K. In support of his version, the learned counsel for appellant referred a case reported as [2013 SCR 1224].
4. Conversely, the learned counsel for respondents submitted that the market value of the land has been fixed by the Collector properly but the learned Reference Judge illegally and arbitrarily enhanced the compensation amount. The learned counsel finally craved for dismissal of appeal.
The learned counsel in support of their version referred case law reported as [1999 SCR 381] [2016 SCR 1370].
5. I have heard the learned counsel for the parties and gone through the record of the case carefully.
6. A perusal of record reveals that the land of petitioner/appellant, herein, comprising Khata No. 153, Khewat No. 42 situated in Village Arnoo Tehsil & District Mirpur was acquired by the respondents for up-raising of Mangla Dam. The Collector while determining the market value of the land under reference kept aside the factors relevant to determine the market value of the property like Location of the land, its present and future use and potential market value, and value of the other properties, adjacent to the acquired land, so, the fixation of the compensation, in my view, was arbitrary and based on whims and wishes of the respondents. Initially, the Ex. Collector assessed the market value of the land under reference as Rs. 1,50,000/ - P.K, but later on the value was decreased by the Collector, who issued the award from 1,50,000/- to 10,000/- P.K which is totally against the law and principles governing the matters. The learned Collector should have taken into consideration all those aspects relating to the market prices of the property but instead of adopting the due process he illegally and unfairly lessened the value of land under reference. The learned Reference Judge, in my view, while answering the reference in affirmative, enhanced very tiny amount, which is totally a joke with the land owners as the valuable and commercially used land of the owners was acquired, though or a project of national importance but the same has also commercial aspect too but the land owners have been compensated in a different way, (kind wise) despite the fact that all the land has been acquired for the same purpose and use, which is discriminatory treatment with the land owners.
7. The appellant in support of his version, has produced an oral account of witness namely Ishtiaq Ahmed Qureshi S/o Mohammad Maqbool Qureshi, according to this witness, the market value assessed by the Collector is very low, according to him the market, price of the land under reference was Rs. 30,00,000/- P.K and the owner demanded the same price from his, when, he showed his intention to buy the same. The petitioner/appellant, herein himself entered into the witness box and stated that the land under reference is adjacent to the populated area and its market value is Rs. 30,00,000/- P.K and he had a plan to construct house, thereupon. From perusal of evidence, it reveals that the acquired land was highly valuable as it was situated near residential area and could be used for that purpose, however, their deposition to the extent of its market value seems to be exaggerated one, particularly, when it is not supported by any documentary evidence, which may suggest that any land, therein, was sold for Rs. 30,00,000/- p.k at the relevant time.
8. The documentary evidence produced by the petitioner/appellant in support of his version is Exh.
"PD" a registered sale-deed dated 27.06.2006, according to which land measuring 1 Kanal 11 Marla was sold in lieu of Rs. 7,00,000/-, similarly,. according to Exh. "PE" a registered sale-deed dated 20.10.2006, according to that sale-deed the land measuring 1 kanal 4 marla was sold for consideration of Rs. 11,50,000 /- in the vicinity of the acquired land, (Average of both is Rs. 7,04,972/- P.K and Rs. 35,248/ - per marla).
9. Now after survey of the evidence, I have come to the conclusion that the learned Reference Judge has not appreciated the evidence in its true perspective and he has not considered the documentary evidence produced by the petitioner/appellant regarding the sale-deeds, which shows sales of the land adjacent to the acquired land. It is said that a man can tell lie but the documents do not. The learned Court below has not given any findings in this regard and enhanced a very meager amount. The Court has to consider the sales of lands of the areas adjacent to the acquired land, its present potential value and future use, as well.
10.The law is well settled that the market value is that value which a willing purchaser is ready to pay to a willing buyer and the learned Reference Judge has not bothered to go into the material brought on record to determine the market value of the acquired land.
11.It is established principle of law that each and every case is to be decided upon the strength of evidence produced in that case, so, automatically and mechanically the same compensation cannot be fixed for another land.
12.The general principles for fixation of compensation amount has been given in a case reported as 1999 SCM R 1647. The relevant factors, to be considered for determination of the market value are usefully reproduced, hereunder:--
(i) ..................
(iii) ...............
(iv)the best method of determination of the market price of the plots of land under the acquisition is ,to rely on instances of sale of it near about the date of Notification under Section 4(i) of the Act.
The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the Notification. When the market value is to be determined on the basis of the instances of sale of land in the neighboring locality, the potential value of the land need not be separately awarded because such sales cover the potential value.
(v)It is obvious that the law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining the market value, classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani as in the present case but its market value may be tremendously high because of its location, neighborhood, potentiality or other benefits.
(vi)According to the well settled principle, while determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration.
(vii) Consideration should be had to all the potential uses to which the land can be put, as well as all he advantages, present or future, which the land possesses in the hands of the owners.
(viii) .....................
(ix)......................
(x)......................
(xi).....................
(xii) ....................
(xiii) ...................
(xiv) ...................
13. The above reproduced golden principles, laid down by the apex Court of Pakistan, for determination of the market value of the land to be acquired, lead this Court to conclude that the market value of the land under reference should have been fixed as the average price of the other land sold in the area in the light of the documentary evidence, as Rs. 704972/- per kanal, which is fair and just and can neither be termed as excessive nor meager, one. Furthermore, in the supra mentioned case the Hon'ble Supreme Court of Pakistan has observed that a Banjar Qadeem land may be highly valuable. So, the compensation should be according to its market value.
14.The Hon'ble apex Court has also fixed the compensation amount in "Murawat Khan's case; and in some other cases, as well at the same rate, irrespective of the kind of land and the same principle was followed by this Court in many a cases, with the obvious reason that the whole land was acquired and used for the same purpose.
15.In the light of above observation, this Court is of the considered view that the appellant/land owners were entitled to the compensation amount of Rs. 704972/ - per kanal, alongwith 15% CAC irrespective of its kinds.
16.The nutshell of the above discussion is that the instant appeal filed by the land owner/appellant is accepted and the judgment and decree passed by the learned Reference Judge stands modified in terms that the appellant is also entitled to receive the compensation amount @ Rs. 7,04,972/- P.K (Rs. 35, 248/- per maria) along-with 15% CAC, irrespective of its kind.
The respondents are directed to manage the payment of remaining compensation amount after deduction of the amount already paid. The needful shall be done within four months of the judgment, positively.