WIQAR AHMAD, J.---Through the instant Regular First Appeal, appellants have called in question judgment dated 09.01.2018 of learned Judge Referee Court/Additional District Judge-II, Nowshera vide which the objection petition filed by the objectors/ respondents under section 18 of the Land Acquisition Act, 1894 (hereinafter referred called as the Acquisition Act) was allowed to the effect that the amount of compensation was enhanced to Rs. 75,000/- per Marla along with 15% compulsory acquisition charges and 6% simple interest rate as well as compensation for the tube well amounting to Rs. 68,47000/-.
2. Land of the respondents measuring 56 Kanal 2 Marlas was acquired from Khasra bearing Nos. 1924, 1907/3/1 vide Award No. 2/2013 dated 06.09.20] 3 at the following rates:- i. Banjar. Qadeem at Rs. 5571/34 per Marla; ii. Barani at Rs. 6658/41 per Marla; iii. Ghair Mumkin at Rs. 2182/8 per Marla.
The respondents had not felt satisfied and filed an objection to the price fixed in the award before the Collector Land Acquisition, Nowshera. The objection petition was forwarded to the learned Judge Referee Court, Nowshera whereupon proper evidence was recorded. At the conclusion of proceedings in the reference, in which the respondents had claimed Rs. 300,000/- per Marla as the proper price of the acquired land, the learned Judge Referee Court enhanced the acquisition amount to Rs. 15000/- per Marla for Banjar Qadeem and Barani type of land and Rs. 5000/-per Marla for Ghair Mumkin type of land.
3. Both the parties felt aggrieved from judgment dated 03.06.2014 of the learned Judge Referee Court, Nowshera and impugned the same through R.F.A No. 374-P/2014 and R.F.A. No. 315-P/ 2014 before this Court. Both the R.F.As. were allowed to the effect that the judgment of the learned Referee Court dated 03.06.2014 was set aside and the case was remanded to the learned Court, with the following directions:- "To appoint a senior counsel as Local Commission to be accompanied with Patwari Halqa to conduct the proceedings and submits its report to the Referee Court."
4. The learned Referee Judge on receipt of the record resumed the proceedings and appointed Mr. Shaukat Ali Khan, Advocate Nowshera as local commission. The learned local commissioner in his report recommended enhancement of rate to Rs. 300,000/- per Marla. The commission report was however objected to and set aside by the learned Referee Court. The learned Court appointed Mr. Kifayat Ali Khan, Advocate (Late) as another local commission with the following directions:- i. "To visit the spot in the presence of the parties; ii. to ascertain the market value of the acquired land in view of the location potential value and value of the adjacent area; iii. to take snapshots and assessment of the tube well in the acquired land; and iv. to record statements of property dealers and local people in this regard".
The last appointed local commission recommended enhancement of amount of compensation to Rs.1,50,000/- per Marla. The learned Referee Judge thereafter enhanced the amount of compensation for the acquired land to Rs. 75,000/- per Marla which was impugned by the respondents/appellants through the instant appeal.
5. The learned A.A.G appearing on behalf of the appellants contended that no evidence was available with the learned Referee Court which could have justified the enhancement of amount of compensation. He further added that had the learned Referee Court placed reliance on the report of commission, then the amount suggested therein may have been fixed as the rate of amount of compensation but the impugned judgment shows that same has not been fixed as amount of compensation. So, the recommendations of local commission have neither been accepted nor rejected and there has been no other evidence on which reliance has been placed by the learned Referee Judge. He further submitted that the amount fixed in the award may be restored by setting aside the judgment impugned herein.
6. Learned counsel for the respondents submitted that the local commission last appointed was not acceptable to the respondents and was in fact favorite of the appellants. In this respect, he stated that before initiation of proceedings of commission, the respondents have raised an objection on his nomination and when their objection was turned down by the learned Referee Court, they had even filed a revision petition before this Court but when the report came, the respondents as usual raised a number Of objections to the same. He further added that the respondents are being tired of the race for getting compensation and therefore, they even did not file an appeal against the judgment of the learned Referee Court, otherwise there was ample scope of further enhancement in the matter as the learned local commission had recommended a sum of Rs. 1,50,000-/ per Marla while learned Referee Court vide impugned judgment has just awarded Rs. 75,000/-per Marla.
7. I have heard arguments of learned Assistant Advocate General appearing on behalf of the appellants, counsel for the respondents and perused the record.
8. During arguments, the question that was agitated at the bar was regarding reasonability and justification for enhancement of the compensation by the learned Judge Referee Court. So, the main issue for determination before Referee Court as well as this Court is the question mentioned above. The objectors in order to make out a case for enhancement have produced nine witnesses.
9. Statement of Patwari Halqa of the concerned Moza was recorded as PW-1 who produced fard-jamabandi Zair Kar pertaining to the acquired Khasra numbers exhibited as Ex. PW 1/1. He also produced Khasra Girdawri of the suit land for the period of Kharif 2010 to Kharif 2013 as Ex.PW 1/2. He further produced Naqsha Tasveri/sketch of the area where the suit land existed as well as Naqsha Tasveri/sketch of the suit land as Ex.
PW 1/3 and Ex. PW 1/4. He further produced one year average from 08.12.2012 to 09.12.2013 as PW-1/ D-1.
Muharir from the Office of Sub-Registrar, Nowshera was examined as PW-2 who produced two registered deeds bearing No. 248 attested on 02.08.2013 and 256 attested on 21.08.2013 as Ex. PW 2/1 and Ex. PW 2/2 respectively. Record Keeper of Land Acquisition Office, Nowshera was examined as PW-3 who produced original record pertaining to award No. 2/2013 dated 06.09.2013 as Ex. PW 3/1 and had also produced record pertaining to minutes of private negotiation held on 27.02.2013 as Ex. PW 3/2. AOK of Tehsil Office, Nowshera was examined as PW-4 who produced original record pertaining to mutation bearing No. 6078 attested on 25.10.2010 as Ex. PW 4/1 and had also produced other mutations as Ex. PW 4/2 to Ex. PW 4/5. Scribe of the deeds bearing No. 1949 dated 27.08.2013 and 1948 dated 27.08.2013 appeared as PW-5 who affirmed his signatures and stamp over the above said deeds. Another scribe of the deed bearing No. 1639 dated 04.08.2013 appeared as PW-6 who stated that the said deed was entered in his register at Serial No. 35 on the same date and was also signed by the parties and witnesses. Mr. Zahid Khan Advocate, District Courts, Nowshera appeared as PW-7 who had confirmed his signature and stamp over the sale deed bearing No. 1639 dated 04.08.2013. Statement of the objector/respondent No. 1 was recorded as PW-8 who testified orally in support of his assertions and produced another witness namely Amjad Ali Khan as PW-9.
10. The appellants / respondents produced two witnesses. RW-1 is the statement of Pervez representative of Director PDMA Office, Peshawar who produced Naqsha Tasviri of the suit land as Ex. RW-1/1. One Wahid Aslam, Litigation Clerk in the Office of District Collector, Nowshera appeared as RW-2 and stated that he relies on the statement of Record Keeper of Land Acquisition Office, Nowshera (PW-3) recorded earlier.
11. One year average of the Moza Jalozai for the year 2013 was exhibited as Ex PW 1/1. As per the said document, the average per Marla rate of Banjar Qadeem area came out to be Rs. 7,881.26/-. Three years average sale price of mutations in the said Moza w.e.f. 08.12.2010 to 08.12.2013 came out to be Rs. 6,523.46/- for Banjar Qadeem type of area. The award seems to have been based on three years average sale price of the mutations in the said Moza. It is well settled that the estimated/average price given in three years average is not conclusively determining factor for fixing the amount of compensation and that other factors and evidence brought on record has to be taken into account in the light of the relevant considerations provided for in section 23 of the Acquisition Act. In this regard, reliance is placed on the case of Province of Punjab through Collector Bahawalpur, District, Bahawalpur and others v. Col. Abdul Majeed and others reported as 1997 SCMR 1692, case of Haji Muhammad Yaqoob and another v. Collector, Land Acquisition/ Additional Deputy Commissioner, Peshawar reported as 1997 SCMR 1670 and the case of Muzaffar Khan and 3 others v. Government of N.W..F.P through Secretary Education, Peshawar and 2 others reported as 2016 CLC 1867.
12. The objectors have brought on record the registered sale deeds Ex. PW 2/1 and Ex PW 2/2 on which they are placing reliance besides other evidence. Ex PW 2/2 reveals that an area of 5 Marlas in the same Moza has been sold for a sum of Rs. 800,000/- on 31.07.2013. Similarly, Ex. PW 2/3 another sale deed dated 20.08.2013 in the same Moza shows that an area of 14 Marlas had been sold for a consideration of Rs. 16,00,000/- through the registered deed. Likewise, copy of mutation Ex. PW 4/1 attested on 14.10.2010 in the same Moza shows that an area of 1 Kanal was sold in consideration of Rs. 14,00.000/-. Another copy of mutation Ex. PW 4/2 in the same Moza shows that an area of 16 Marlas was sold for consideration of Rs. 6,40,000/- on 15.04.2011. Copy of mutation Ex. PW 4/3 in the same Moza shows that an area of 1 Kanal was sold for consideration of Rs.
12,00,000/- on 03.05.2011. Similar is the case of the documents Ex. PW 4/4 and Ex. PW 4/5. When such evidence is read with the report of local commission last appointed for spot inspection, it becomes quite clear that the market value of the land in dispute was much more than the one fixed by the District Collector, Nowshera while passing the award.
13. The learned local commission has relied upon mutations Nos. 7672, 7671 and 6078 annexed with his report as Annexure 'D' and has taken out the average price of Rs. 100,000/- per Marla as estimated sale price for the year 2012. As per Annexure 'D' of his report, he has estimated the average sale price of 1 Marla land at Rs.
200,000/- existing in the year 2013 on the basis of the developmental projects and housing schemes etc. in the vicinity and the statements of certain property dealers of the locality. In pursuance thereof he has recommended Rs. 1,50,000/- to be the average sale price in the year 2013. The process of acquisition started on 19.12.2012 by issuing of Section 4 of the Acquisition Act. The commission report was upheld by the learned Referee Court in the impugned judgment. The learned lower Court has even then adopted a cautious approach and has not fixed the amount of compensation at Rs, 1,50,000/- per Marla as suggested by the learned local commission but fixed it at 50% below the said rate at Rs. 75,000/-per Marla. Besides the commission report, there were other evidence also in the shape of deeds and mutations discussed above and the learned Judge Referee Court was fully justified in enhancing the amount of compensation to Rs. 75,000/- per Marla.
14. The site plan annexed by the local commission with his report as Annexure 'C' also shows that the property acquired by the respondents/ appellants had been possessing a great potential value. A look at the site plan reveals that the acquired property is situated on the main Chirat Road surrounded by housing societies and buildings in which public offices have been housed. Potential value of the said road may well be judged from a glance at the said document. Potential value of the property was held to be a relevant consideration in determining the amount of compensation in the case of Fazalur Rahman and others v. General Manager, S.I.D.B and another reported as PLD 1986 Supreme Court 158. Reliance in this respect is also placed on the case of Malik Aman and others v. Land Acquisition Collector and others reported as PLD 1988 Supreme Court 32.
15. In such circumstances, enhancement of the market value to the sum of Rs. 75,000/- per Marla was not exorbitant or unjustified. The learned Referee Judge has rather adopted a very cautious approach in determining the said amount. While fixing the amount of compensation for the tube well and transformer installed by the respondents in the acquired land, the learned Referee Judge has rightly relied upon the report of local commission. The local commission has in fact mainly relied upon the report of Public Health Department which has estimated the value of the tube well in its report which had been annexed with the report of the local commission as Annexure "U". No exception can be taken to the determination of amount of compensation in the said respect also.
16. While determining the amount of compensation, not only the market value should be taken into account but the fact that the person was deprived of his land against his will, therefore he should be adequately compensated and that's why the word 'compensation' instead of 'market value' has been used in section 23 of the Acquisition Act. It was held by the Hon'ble Supreme Court of Pakistan in the case of Nisar Ahmad Khan and others v. Collector, Land Acquisition, Swabi reported as PLD 2002 Supreme Court 25 at page 37 that where lands are acquired not through mutual negotiations but under the State power conferred upon the State functionaries, the land owners o are entitled to maximum possible benefits; Courts had to be liberal and generous in fixing the quantum of compensation based on different considerations so that neither a land owner is deprived of his due rights nor the acquiring agency is unduly burdened in the transaction.
17. No misreading or non-reading or substantial infirmity could be shown by the learned Assistant Advocate General while appearing on behalf of appellants in the impugned judgment, which may have been sufficient for discarding the, same.
18. For what has been discussed above, the instant regular first appeal was found without any merits and is dismissed accordingly.