SYED ARSHAD ALI, J.--- Through instant appeal, the appellant has questioned the validity , legality and propriety of judgment and decree dated 29.05.2010 passed by learned Additional District Judge-I / Acquisition Judge, Haripur passed in Objection Petition No, 14/4 of 2008, whereby the objection petition filed by the appellants was dismissed.
2. Brief but necessary facts of the case are that vide letter No, 1838/13-C dated 19.12.2005, the Deputy Director , Works and Services Department, Haripur requested the Land Acquisition Collecto r, Haripur for acquisition of land for construction of Chamba Pind Bridge road at village Sarai Gadi, Haripur "acquired land'. Accordingly , notification under Section 4 of the Land Acquisition Act, 1894 was issued on 24.12.2005. The land owners filed their objections contending that`the potential value of the proposed land is higher then as proposed in average year sale, prepared by the Patwari Halqa being situated in close proximity of the populated area and is irrigated from a well. Finally the proceeding culminated in the announcement of Award within terms of Section 11 of the Land Acquisition Act, 1894 'Act' on 28.08.2007, whereby the price of the acquired land was assessed as under;- Kind of land Per Marla Per Kanal Charri Rs. 13,188/12Rs.
2,63,762/44 Maira Rs. 4,39.6/04Rs. 87,920/80 Un-CultivatedRs. 1,099/01 Rs. 21,980/20
3. Aggrieved by the compensation determined in: the Award, the appellants filed objection petition within terms of Section 18 of "Act", by contending that the respondents have not properly assessed the market value of the acquired land, while the price for the trees was also not assessed and prayed that the price of the acquired land be enhanced to Rs. 600,000/- per Kanal. The objection of the petitioners was duly contested by the respondents through filing written reply . The learned Referee Court framed following issues from the divergent pleadings of the parties:- ISSUES:-
1. Whether the objectors have got a cause of action?
2. Whether the objection petition is incompetent and bad in its present form?
3. Whether the objection petition is time barred?
4. Whether the Objectors are estopped to sue?
5. Whether the kind of land of acquired property is wrongly determined by the collector , if so, its ef fects?
6. Whether the valuation of acquired property at spot is wrongly determined by the collector and kind of land is Chai at the spot, if so, its ef fects?
7. Whether the objectors are entitled to the decree as prayed for?
8. Relief.
4. Muhammad Daud Patwari Halqa Kot Najibullah appeared as OW-1 who produced Jamabandi for the year 2002/2003 as Ex. OW-1/1 and one year average from 28.08.2006 to 28.08.2007 as Ex. OW-1/2. He stated that according to the revenue record, the kind of the suit land is Chai, Mera, Ghair Mumkan Abadi, Ghair Mumkan Rasta, houses, Chari and Kund. During cross-examination, he produced one year average from 27.12.2004 to 27.12.2005 as Ex. OW-1/R1. Abdul Khaliq, Land Acquisition Clerk appeared as OW-2 who produced the Award as Ex. OW-2/1, objections of the objector as Ex. OW-2/2, application regarding compensation of the well as Ex. OW- 2/3, detail cost estimate regarding open well as Ex. OW-2/4, application for compensation of trees as Ex. OW-2/5, copy of Qabz-ul-W asool as Ex. OW-2/6 and one year average as Ex. OW-2/7. Muqarab Khan appeared as OW-3 who stated that the price of the acquired land was wrongly assessed as the prevailing rate of the land was Rs.
10,00,000/- per Kanal. Respondents produced and examined only single witness namely Zahoor Elahi SDO Works and Services Department, Haripur as R W-1 and closed their evidence.
5. The learned Referee Judge/ Additiona l District Judge-I, Haripur , vide judgmen t and decree dated 29.05.2010, dismissed the objection petition filed by the appellants/objectors with costs. Hence, the instant appeal.
6. Learned counsel for the appellant has argued that the learned trial Court has illegally dismissed the objection petition despite the fact that the average Yaksala for the year from 28.08.2006 to 28.08.2007 was produced, as according to amendment in Section 23 of the "Act", the market rate prevailing at the time of taking possession is to be considered whereas both, the Collector and the learned trial Court had considered the one year average from 24.12.2004 to 24.12.2005. He has further argued that the land of the petitioner has been illegally classified as Maira and Charri whereas actually there was a well in the property of the appellant, hence, the kind of the acquired land from the objectors was Nal Chahi. He has further argued that the disputed property was surrounded by the residential area, hence, potential value of the acquired land is much higher than what has been assessed by the Collector . He further submitted that the application of the objectors for appointment of local commission was also illegally dismissed.
7. On the other hand, learned AAG representing the respondents has defended the judgment of the trial Court being based on properly appreciation of evidence.
8. Arguments heard and record perused
9. Since only the objector has challenged the impugned judgment and decree of the Referee Court through the present appeal, therefore, the issues for determination are issues Nos, 5, 6 and 7. These issues relate to the nature and compensation awarded for the acquired land.
10. Section 23 of the "Act" provides for determining the compensation to be awarded to the land owners for compulsorily acquiring their property , reads as;- "23. Matters to be considered in determining compensation.---(1) In determining the amount of compensation to be awarded for land acquired under this Act, the court shall take into consideration; firstly , the market-value of the land on the date of taking possession of the land, secondly , the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly , the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason severing such land from his other land; fourthly , the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property , movable or immovable, in any other manner , or his earnings; fifthly , if, in consequence Of the acquisition of the land by the Collector , the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly , the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
(2) In addition to the market-value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition."
11. This crucial issue for determining compensation of acquired property has been earlier explained by this Court in 'Sultan Shah's case (PLD 2011 Peshawar 60)', wherein after discussing the decision of the Apex Court, it was held that;- "The two most essential issues on which the present appeals hinges are that;
(i) whether in determining the compensati on of the acquired property only the market value of the same at the time of issuance of Notification has to be considered or future prospects of the said property including future sales prices could also be considered in determination thereof
(ii) whether the "yaksalas' and 'panchsalas' were the only guiding consideration for determining the compensation of the acquired property .
In view of the aforementioned clear annunciation of the august Supreme Court of Pakistan, it is now settled that in order to determine the compensation for the acquired property , the determining factor should not only be the "Market" value of sales taking place at the time of Notification but it should also be with reference to the use to which the acquired property was reasonab ly capable of being put in future. In this regard, future sales could also be taken into consideration while determining the compensation for the acquired property .
In view of the aforementioned discussion on the two essential issues, this court is of the considered view that:.
(i) In determining the compensation for property being acquired, the "potential." value thereof can and should be considered, which would depend upon the future prospects of the similarly placed property . This can be determined by factors including the sale price or the market value of similarly placed property even on a future date, subsequent to the Notification but not beyond the announcement of the Award.
(ii) the 'yaksalas' and punjsalas' can and should not be the only consideration for determining the, compensation for the property being acquired under the Act."
The aforesaid view has been af firmed by the august Supreme Court in 'Begum Aziza's case (2014 SCMR 75 )'.
12. Now considering the evidence of the parties in view of the law laid down by the apex Court. The suit property is comprised of Khasra Nos, 160. 161 and 162. The total land acquired from the aforesaid Khasra numbers is 17 Marlas. the detail of which as per revenue record/extract from field book is as following:- Khasra No,Kind of land Acquired land 160 Maira 3 Marlas 161 Ghair Mumkin Chah2 Marlas 162 Chahi 12 Marlas.
According to Aks Shajra Kishtwar , all the three Khasra numbers are contiguous and in Khasra No, 161, there is a well, which according to the petitioner is used for the purpose of irrigation of rest of the property . Although in the revenue record Khasra No, 160 wherefrom only '3 Marlas land has been acquired is -shown as Maira (un-cultivated land), however , the said Khasra is contiguous to Khasra No, 162 and Khasra No, 162 is Chahi (the land which is to be irrigated from well), therefore it is beyo nd comprehension that from the well situated in Khasra No, 161, the land adjacent to the well will not be irrigated. Therefore, the assertions of the appellan t that the entire acquired land is indeed Chahi in nature and as such he is entitled for compensation against the land at the rate fixed for Chahi kind of land, seems to be correct and supported by record. The worthy Collector has granted compensation keeping in view the nature of the land as Charri, Maira and uncultivated whereas no compen sation has been granted in the said award for Chahi land. Indeed the appellant is entitled for compensation of his acquired land being Chahi.
13. One year average provided by the Patwari Halqa to the worthy collector contain the valuation of the land for all kinds i,e, Chahi, Charri, Kund, Maira etc. According to the one year average sale, provided by the Patwari Halqa to the worthy Collector , the rate for Chahi kind of land is Rs. 36,376.24 per Maria, whereas the rate for Charri as well as Maira kind of land is Rs. 13188.12 per Marla. The existence of well in the suit property is admitted fact because separate compensation has been evaluated and granted to the petitioner for the well which Was situated in Khasra No, 161, hence, from the available record, this Court hold that nature of the land acquired from the petitioner from Khasra Nos, 160, 161 and 162 is Chahi and as such, petitioner is entitled for compensation for Chahi kind of land.
14. The next question is the crucial date for determination of the compensation of the land acquired. In the present case, notification under Section 4 of the "Act" was issued on 24.12.2005 whereas the impugned award was announced on 28.08.2007. The worthy Collector had considered the compensation for the acquired land on the basis of average one year sale from 24.12.2004 to 24.12.2005, the date when notification under Section 4 of the "Act" was issued, whereas under Section 23 of the "Act", the crucial date for deter mination of compensation is the market value of the land on the date of taking possession of the land. The Relevant provision of Section 23 was amended through Land Acquisition (W est Pakistan Amendment) Ordinance, 49 of 1969, which reads as under:-- "Amendment of Section 23.---(1) In clause first and clause sixth of subsection (1) of Section 23 of the said Act; for the words, figures, brackets and comma "at the date of publication of the notification under Sec 4, sub-section (1) " 'and the words and figure "the time of the publication of the declaration under Section 6" shall be deemed to have been substituted by the words, letters and figures "on 1st September , 1961", at both the places."
Subsequently , the said .Section was further amended through North-W est Frontier Province Land Acquisition (Amendment) Ordinance, XVII of 2001 as under:- "N.-W .F.P Amendment: [Section 23, in subsection (1), for the words and figures "firstly , the market-value of the land on the date of the publication of the notification under Section 4, subsection (1) ", the words and comma "firstly , the market-value of the land on the date of taking possession of the land" shall be substituted.]"
In this regard, the Patwari Halqa produced during the trial, one year average sale of the property sold from 28.08.2006 to 28.08.2007 exhibited as Ex, W-1/2 according to which the average price of Chahi kind of the land was Rs. 29630.53 per Marla. Other than average Yaksala Ex. OW-1/2, the appellant could not produce any further evidence regarding the potential value of the acquired land at the relevant time. Even otherwise, the learned counsel for the appellant has frankly conceded that he will be satisfied if the appellant is granted compensation according to Ex. OW-1/2. Indeed, the appellant is entitled to compensation at least at the rate as provided in Ex.
OW-1/2.
15. Regarding the compensation for trees, suffice it to mention that the objector has neither mentioned the number of trees which were planted/ grown in the suit property nor any positive evidence has been produced during the trial to establish his assertion. The learned Referee Court has rightly declined the compensation allegedly claimed .against the trees.
16. With these observations, this appeal is allowed and accordingly the amount of compensations for the land acquired from the petitioner is enhanced to Rs. 29630.53 per Marla with all inciden tal charges as envisaged by the "Act", revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.