SHAKEEL AHMAD, J.---Through this single judgment, I propose to decide R.F.A. No.93-D of 2017, filed by Shahid Hamid Khan and connected R.F.A. No. 112-D of 2013 (filed by NHA), arising out of the same judgment dated 26.9.2013, passed by the learned Additional District Judge-II/Referee Judge, D.I.Khan.
2. Brief facts of the case are that the National Highway Authority needed land, measuring 423 kanal 19 marla in Mouza Short Kot, Tehsil .and District Dera Ismail Khan for construction of D.I. Khan-Sarai Gambila Road Project (N-55). NHA filed a requisition for compulsory acquisition of land. The Land Acquisition Collector , D.I.Khan initiated acquisition proceeding and finally announced award No.7 on 09.8.2008, under Section 11 of the Land Acquisition Act, 1894. The rates of acquired land was fixed @ Rs.29,975/- per kanal with 15% compulsory acquisition charges, 6% simple interest w.e.f. the date of taking over possession i.e. 06.9.2007 to 08.8.2008. Not contented with the amount of compensation, the affectees filed objection petitions under Section 18 of the Land Acquisition Act, 1894, whereafter , the Referee Judge enhanced the compensation as follows:- Agricultural Land Rs:1,00,000/- per kanal Commercial Land Rs:5,00,000/- per kanal
3. Note satisfied with the decision of Referee Judge to the extent of fixation of value of agricultural land I@ Rs:1,00,000/- per kanal, the af fectees have filed R.F .A. No.93-D/2017 and N.H.A. filed. RF A No.1 12-D/2013.
4. The learned counsel appearing on behalf of the affectees/ appellant argued that the market value of the agricultural land is of high potential value and is situated in the one compact. He relied upon the report of local commission whereby the price of the agricultural land was fixed at Rs.3,00,000 /4,00,000/- per kanal. He lastly contended that possession of the land was taken over in the year 2007 and since then the price of the land has been increased many fold, therefore, even the price fixed by the Referee Judge to the extent of agricultural land is much less than the actual market value and prayed for its enhancement.
5. On the other hand, the learned counsel appearing on behalf of NHA, contended that the learned Referee Judge erred while enhancing the compensation of commercial as well as agricultural land and much higher price has been fixed without any cogent reason. He next contended that the local commission, after spot inspection and local investigation, wrongly determined the market value of the commercial land at Rs:5,00,000/- per kanal and agricultural land at Rs.3,00,000/4,00,000/- per kanal, which is much higher than actual market value. He lastly contended that the Referee Judge has not considered the average price of the last one year which was much less than the price fixed by the Referee Court.
6. I have heard the learned counsel for the parties and have gone through the impugned judgment and available record minutely .
7. It is evident from the record that appellant/af fectees produced different mutations through Mushtaq Ahmad Halqa Patwari Mouza Short Kot PW-2 and tendered those mutations as Ex. PW 2/3 to Ex. PW 2/8, showing rates of the land in the year 2005/2006, detail whereof are as follows:- Mutation No.Dated Area Sale considered 4738 19.12.2005 1.5 marla Rs.2,50,000/- 4744 19.12.2005 18 marla Rs.20,00,000/- 4776 20.12.2006 20 marla Rs.20,00,000/- 4882 25.5.2006 22 kanal and 5- 1/2 marlaRs.85,00,000/- 4954 28.8.2006 1 kanal and 10 marlaRs.6,00,000/- 4956 28.8.2006 1 kanal Rs.3,00,000/- PW-2 was cross-examined by the learned counsel representing the NHA, but did not put a single question about the compensation of rate recorded in the aforesaid mutations, thus the rate recorded in the mutations remained unchallenged. It is also evident from the record that vide order dated 06.7.201 1, the learned Referee Judge appointed Malik Muhammad Bilal, Advocate as local commission for determination of market value of the land in question. The local commission vide its report dated 09.7.201 1 (Ex. CW 1/1), in view of the potential value of the acquired land, determined the rate of commercial land at Rs.5,00,000/- per kanal and side plot at Rs.3/4 lakh per kanal, as the acquired land is situated in one block/compact and its front is adjac ent to road, though the land in question is agricultural, but can be used for commercial purpose. The learned Referee Judge though accepted the report of local commission and enhanced the rate of commercial land @ Rs.29,975/- to Rs.5,00,000/- per kanal, and that of agricultural land to Rs:1,00,000/- per kanal, however , he did not consider the rate of agricultural land, as suggested by him that too without assigning any reason. It is well settled principle of law that at the time of passing the award, the potential value of the property has to be considered in addition to the market value of the land. In this behalf, reference can be made to the case reported as Province of Sindh v. Ramzan and others (PLD 2004 SC 512). The question as to how the price of acquired land is to be determined has been examined by the august Supreme Court in various cases in a comprehensive manner and guideline has been provided. In this context, reliance can well be placed on the judgment reported as Province of Punjab v. Jamil Ahmad Malik (2000 SCMR 870), wherein it was observed as under:- "---S.23--Acquisition of land---Determination of compensation---Assessment of future prospects of land acquired--- Principles.
Following are the principles of assessing the future prospects of the land acquired under the Land Acquisition Act, 1894 in terms of section 23.
(i) That an entry in the Revenue Record as to the nature of the land may not be conclusive, for example, land may be shown in Girdawri as Maira, but because of existence of well near the land, makes it capable for becoming Chahi land.
(ii) That while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered.
(iii) That the market value of the land is normally to be taken as existing on the date of publication of the notification under section 4(1) of the Act but for determining the same, the price on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years back, may be consid ered including other factors like potential value etc".
In this behalf, reliance can also be placed on the cases reported as Province of Punjab through Collector , Bahawalpur and others v. Col. Abdul Majeed and others (1997 SCMR 1692 ); Abdur Rauf Khan v. Land Acquisition Collector (1991 SCMR 2164 ); Gunj Khatoon v. Province of Sindh (1987 SCMR 2084 ); Fazalur Rahman v. Collector (PLD 1988 SC 32); Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. (1993 SCMR 1700 ) and Murad Khan and 13 others v . Land Acquisition Collector , Peshawar and another (1999 SCMR 1647 ).
8. It is now well settled that the average sales of last one year is not conclusive proof for determination of the market value of land while assessing the market value of the land, its location and potentiality has also to be considered. Reference in this regard can be made to the case of Pakistan Burma Shell Ltd. v. Province of N.-W .F.P. and 3 others (1993 SCMR 1700 ), wherein it was observed as under:- "---Ss. 4 & 23---Matters to be considered in determining compensation---One of the factors for determining market value would be the date of notification under S. 4, Land Acquisition Act, 1894---Market value had often been described as what a willing purchaser would pay to the willing seller---In assessing market value of land, its location. potentiality and the price evidenced by the transactions of similar land at the time of notification would be the factors to be kept in view---One year's average of the sales taking place before the publication of notification under S. 4, Land Acquisition Act, 1894, of similar land was merely one of the modes for ascertaining the market value and was not an absolute yardstick for assessment".
9. In the case of Province of Punjab through Collector , Bahawalpur and others v. Abdul Majeed and others (1997 SCMR 1692 ), certain principles of law have been laid down for assessing market value of the land acquired under the Land Acquisition Act, 1894, in terms of Section 23. The relevant portion is reproduced as under: "---S.23---Acquisition of land---Payment of compensation--- Matter to be considered---Market value-- Determination--- Factors---Acquired land was though shown as agricultural land in Revenue Record but was surrounded on all sides by fully developed areas and was situated in close proximity of Cantonment area, High Court and Circular Road---Part of some of the rectangular of acquired area were also part of the nearly residential colonies---Such land, in circumstances, had the great potential value being situated in close proximity of the two well-developed housing societies and being close to the Cantonment area as well the old area of city---In assessing the market value of the land, its present use alone was not relevant---Possibility of land being used for different purpose in future and its potential value on account of its situation near the developed area/land were important factors which the Courts had to keep in view while determining the market value of the acquired land--- Market value of land is often described as the price which a willing purchaser is ready to offer for the land to a willing seller , and therefore, one year's average sale price of simple lands in the vicinity preceding the date of notification under S.4, Land Acquisition Act, 1894 could not be adopted as the sole yardstick for assessing the market value of the acquired land".
In this behalf, reliance can well be place d on the case reported as Land Acquisition Collector , G.S.C., N.T.D.C., (WAPDA) Lahore and another v . Mst. Surraya Mehmood Jan (2015 SCMR 28 ), wherein it was held as under:- "---S. 23---Acquisition of land---Compens ation--- "Market value" of land acquired, determination of--- Principles---Contemporaneous transactio ns of land in the same vicinity--- Potential use of land--- Term "market- value" as employed in S.23 of the Land Acquisition Act, 1894 implied the price that a willing purchaser would pay to a willing buyer in an open market arm's length transaction entered into without any compulsion---Such determination must be objective rather than subjective---While undertaking such exercise, contemporaneous transactions of the same, adjoining or adjacent as well as the land in the same vicinity or locality may be taken into account---A ward of compensation of a similar , adjacent, adjoining land or in respect of the land acquired in the same vicinity or locality could not be ignored---Classification of the land in the Revenue Record could not be the sole criteria for determining its value and its potential i.e. the use of which the said land could be put, must also be a factor---For such purposes, the use of the land in its vicinity needed to be examined".
10. Thus, for the foregoing reasons, the R.F.A. No.93-D/2017 is partially allowed and rate of the agricultural land is enhanced from Rs.1,00,000/- to Rs.3,00,000/- per kanal, however , the compensa tion of commercial land fixed in the impugned judgment by the Referee Judge being based on cogent reasons, needs no interference, consequently , the R.F .A. No.1 12-D/2013, filed by the NHA is dismissed.