SYED MUHAMMAD ATTIQUE SHAH, J.---Through the instant appeal under Sectio n 54 of the Land Acquisition Act, 1894, the appellants have called in question the judgment and decree dated 03.5.2018 rendered by learned Referee Judge/Additional District Judge -V, D.I. Khan, whereby on acceptance of reference petition of the respondents, the compensation amount was enhanced to Rs.600000/- per kanal with 15% compulsory acquisition charges and 6% simple interest per annum, on the amount of compensation.
2. The brief facts giving rise to the instant appeal are that the appellants acquired certain land of respondents in Mouza Korai, Tehsil and District D.I.Kha n for construction of Sarai Gambila road Project N 55 D.I.Khan through Award No.14 dated 04.3.2009 for an amount of Rs.200000/- per kanal. The respondents filed reference petition under Section 18 of the Land Acquisition Act, 1894, wherein the learned Referee Judge framed issues, recorded evidence and also appointed local commission, where after the reference was decided vide judgment and decree dated 23.7.201 1.
3. Aggrieved from the judgment and decree dated 23.7.201 1, the respondent filed an appeal, which was accepted by this Court on 10.6.2013 and the case was remanded with the direction to appoint new local commission and to decide the case afresh. After appointment of local commission, the learned Referee Court once again decided the reference vide judgment and decree dated 23.11.2013. The said decision was again challenged before this Court and the matter was once again remanded vide judgment dated 18.10.2017 with certain directions to be followed by the Referee Court.
4. Thereafter the learned Referee Court, vide impugned judgment and decree dated 03.5.2018, accepted the reference petition and enhanced the rate of compensation to Rs.600000/- per Kanal with 15% compulsory acquisition charges and 6% simple interest, hence the instant appeal by the appellants.
5. The learned counsel for the respondents at the very outset challenged the maintainability of the present appeal on the ground of being filed by incompetent persons i.e. (i) Project Director, NHA, Project (N-55), (ii)
General Manager, NHA, G-9, Islamabad and (iii) Collector Land Acquisition NHA, Project (N-55), D.I.Khan, who were not competent under the law to file the instant appeal. He further argued that instant appeal is also liable to be rejected, as the appellants have not affixed the requisite court fee leviable on the instant appeal. So far as merits of the case are concerned, the learned counsel for the respondents defended the impugned judgment of learned Referee Court and argued that the same is based on proper appreciation of evidence and material available on record of the case which does not need any interference.
6. The learned counsel for the appellants controverted the arguments of learned counsel for the respondents by arguing that the appellants were competent to file the appeal and there is no defect in filing the same. He further argued that the appellants have affixed Rs.500/- as court fee which is leviable under the law. The learned counsel for the appellants also attacked the impugned judgment on the ground that the learned Referee Court has not taken into account the available material in its true perspective and erred in enhancing the rate of compensation.
7. I have heard the arguments of learned counsel for the parties and have gone through the record.
8. Firstly, this Court will address the question of maintainability. Perusal of the record reveals that the present appeal has been filed by (i) Project Director, NHA, Project (N-55), D.I.Khan, (ii) General Manager, NHA, G-9, Islamabad and (iii) Collector Land Acquisition NHA, Project (N-55), D.I.Khan. It is worth mentioning that earlier the award under the Land Acquisition Act, 1894, was only to be challenged by the affectees in view of the provisions of Section 21 of the ibid Act, however, subsequently, vide amendment introduced in section 18 of the ibid Act, Federal Government, Provincial Government, local authority or a company has also been given the right to refer the matter to the Court within six months from the date of announcement of award, if it has not accepted the said award, therefore, both the appellants Nos.1 and 2 were well competent to file the instant appeal. So far as the objection of learned counsel for the respondents regarding competency of Collector Land Acquisition, NHA to be a party to the appeal before this Court is concerned, it is observed that Land Acquisition Collector, NHA had initiated and completed the acquisition proceedings and the respondents had also arrayed him as a party in the reference petition before the learned Judge Referee Court, therefore, objection of the respondents at this stage that he cannot be included in the panel of the appellants is not tenable, as the respondents cannot blow hot and cold in the same breath.
9. Before dilating upon the issue of affixation of proper court fee on memorandum of instant appeal, this Court deems it appropriate to discuss the very object and purpose of the Court Fees Act, 1870. The object of the ibid Act is to secure revenues for the benefit of the state and provisions thereof are not to be used for non-suiting a party on account of some technical/procedural defects or omissions, as the matter of Court fee is between the state and the litigant, therefore the rival party cannot use it as a tool to non-suit a party on failure to deposit the requisite court fee. There are three Schedules appended to the ibid Act. The First Schedule of the ibid Act provides for levy of court fee on ad valorem basis, which has specifically provided that ad valorem fee would be leviable on plaint, written statement, pleading a set-off of counter- claim or memorandum of appeal (not otherwise provided for in this Act) or of cross-objection presented to any Civil or Revenue Court except those mentioned in Section 3. It is worth mentioning that the term "ad valorem" has not been defined by the ibid Act, however, as per its dictionary meaning, ad valorem means 'according to the valuation' and ad valorem duties are always estimated at a certain percentage on the valuation of the property as opposed to fixed or specific duties. Karachi Municipal Corporation v. Masters Mohammad Ali Shaikh PLD 1966 Karachi 42. Now coming to the object of the second Schedule, it relates to fixed fees on applications or petitions, which relates to the matters of an ancillary or adjective or subordinate nature. Whereas, Schedule III prescribes forms of valuation.
10. Apart from the above, Section 8 of the ibid Act, specifically deals with affixation of court fee on appeals filed by the claimants. Section 8 by itself is not a charging Section, it only provides the mode and manner in which the court fee is to be computed. For the sake of convenience, the provision of Section 8 is reproduced below:- Section 8; Fee on memorandum of appeal against order relating to compensation; The amount of fee payable under this Act on a memorandum of appeal against an order relating to compensation under any act for the time being in force for the Acquisition of land for public purposes shall be computed according to the difference between the amount awarded and the amount claimed by the appellant.
It is clear from the ibid provision of Section 8 that the amount of the fee payable on a memorandum of appeal shall be computed according to the difference between the amount awarded and the amount claimed by the appellants. However, the ibid Act has not provided a corresponding provision prescribing the manner of computation of the court fee in the case of an appeal filed by Federal Government, Provincial Government, local authority or a company, therefore, in absence of a corresponding provision, a question arises that under which provision of the ibid Act, court fee would be affixed on the appeals filed by the state or the acquiring department. The ibid question came up for hearing before the superior Courts and has thoroughly been thrashed out by our own jurisdiction and the Indian jurisdiction as well. In this respect, this Court would first refer to the case of The Province of West Pakistan v. Qadir Bux and others (PLD 1960 (W.P) Lahore 665) wherein it was held that:- OPINION OF FULL BENCH ORTCHESOIY , J. The facts of the case are given in the referring order and need not be repeated.
2. The main difficulty in considering the authority under reference, Secretary of State for India v. Basawa Singh is that the learned Judges did not give detailed reasons for their decision on the question of the court fee payable, merely remarking: " The respondents will pay the appellant's costs in this Court, including the court fee of Rs. 10 which is adequate under Article 17 (iv) of the II Schedule to the Court Fees Act; section 8 of the Act being applicable only to appeals by persons claiming compensation". The legal position, at that time, however, was that award of the kind now under discussion did not have the force of decrees, section 26 (?) of the Land Acquisition Act (I of 1894), which granted them that stators, only being added to the said Act in the year 1921.
Schedule I of Article 1 of the Court Fees Act had, therefore, no application, being confined to appeals from decrees. It may be mentioned in this connection that although in Debi Din v. Secretary of State the learned Single Judge considered that no distinction can be drawn under Article 1 of Schedule I between appeals from decrees and appeals which are not from decrees, such a conclusion appears to me, with the greatest respect, to overlook the fact that Article II of Schedule 11 makes special provision for those cases in which the appeal is not from a decree or an order having the force of a decree. The enactment of the latter Article has the effect of limiting Article 1 of Schedule I to appeals from decrees or orders having the force of decrees. The position in which the learned Judges found themselves in Basawa Singh's case therefore was that Article 1 of Schedule I of the Court Fees Act could not be invoked, and as tiny were of the opinion that section 8, of the Act was limited to claimants and not applicable to appears by the Secretary of State, they had to fall back upon some other provision of the Act in deciding the court-fee payable on an appeal falling within the latter category. The only Article that could be pressed into service for that purpose was Article 17 (iv) of the Second Schedule. The learned Judges would probably have been the first to concede that to apply Article 17 (iv) in this manner was to do a certain amount of violence to its language, since the proceedings under discussion are not "suits", nor is the relief sought by the appellant the setting aside of an award, but no alternative presented itself.
3. Mr. Ghulam Abbas Jafri attempted to argue that as, by section 26(2) of the Land Acquisition Act, compensation awards are to be deemed to be decrees and the statements of the grounds of such awards "judgments " within the meaning of section 2, clause (2), and section 2, clause (9), respectively of the Code of Civil Procedure, the proceedings leading up to such awards must be classed as suits. In support of this proposition he cited Balram Singh v. Dudh Nath (AIR 1949 All. 100) in which it was held that when the word "suit" has not been defined in the General Clauses Act, it should not be given a restricted meaning, but the object of giving the expression "suit" so extended a meaning as to cover proceedings under section 12 of the U.P. Agriculturists' Relief Act was that the right of the parties to have their disputes settled by a tribunal of their own choice should not be taken away, whereas, as the law now stands, it is unnecessary to give such a wide meaning to the term in order to assess the court fee payable on the present appeal.
4. I have no hesitation in holding that Article 17 (iv) of the Second Schedule to the Court Fees Act is inapplicable to the present proceedings. Apart from the fact that the said proceedings cannot be regarded as a "suit" within the ordinary meaning of that word, the relief sought is, as already pointed out, not the setting aside of an award. On this point the remarks of Bennet, J. In Debi Din v . Secretary of State may be usefully quoted:-- "The appellant before the High Court does not ask that the award of the tribunal should be set aside and that he should have no other relief. On the contrary what he asks for is that an award should be granted by this Court in appeal giving him an amount of compensation which is Rupees one lakh greater than the compensation awarded by the Court below. He therefore contemplates that as a result of the appeal there would be an award decreed by this Court. Such an appeal cannot be described as an appeal to set aside an award. The remedy of setting aside the decision of the lower Court would only be a part of the remedy asked and there is the further remedy of granting a larger award. The present appeal therefore will not come under Sch. 2, Art. 17 (iv)."
5. For the reasons given above I am of the view that if the amendment to the Land Acquisition Act which gave awards such as the present the force of decrees had been in existence when the learned Judges decided Basawa Singh's case, they would, in view of their opinion that section 8 of the Court Fees Act was limited to appeals by claimants, have held Schedule 1 of Article 1 to be applicable, but, however, that may be, it is clear that under the law as it now stands the two alternatives are section 8 and Schedule I, Article 1. The only difficulty appears to me to be that whereas, in the case of appeals by claimants, section 8 of the Act, which is not itself a charging section, lays down the manner in which the court fee is to be computed, there is no corresponding provision prescribing the method of computation of the court fee in the case of an appeal by the State, and if to cover the case of claimants, it was considered necessary to add a special section, it is unfortunate that no similar provision, exists in the case of State appeals. It would, however, be in the highest degree inequitable that whereas a claimant is compelled by section 8 to pay ad valorem court-fee, the State should be entitled to file an appeal on payment of a fixed court fee of , Rs.10 and there is no doubt that though section 8 does not in terms apply to State appeals, its provisions should be invoked by analogy, and the court fee in appeals by the State fixed under Article 1 of Schedule I of the Court Fees Act."
Similarly , in the case of Indore Development Authority v. Tarak Singh and others (AIR 1995 SC 1828) it was held that:- "In this context, it is relevant to note section 8, of the M. P . Court Fees Act which reads thus:- "Fee and memo, of appeal against order relating to compensation:- The amount of fee payable under this Act on a memo of appeal against an order relating to compensation under any Act for the time being hi force for the acquisition of land for public purpose shall be computed according to the difference between the amount awarded and the amount claimed by the appellant."
It is true that the appellant is not the claimant but when the appellant seeks to avoid the decree, which is made by the reference Court, it must be construed that the appellant is seeking to avoid the amount of higher compensation determined by the reference Court, as claimed by the land owners, therefore, the appellant is required to pay the Court fee on the memorandum of appeal to the extent on which the appellant seeks to avoid the higher compensation awarded by the Reference Court under the Central Act. When its legality is challenged by filing the appeal under section 54, the difference of the amount for which appeal is pled ad volarem court fee under section 8 is required to be paid. Article 11 of the Schedule II has no application, since it is expressly covered by section 8 of the M.P. Court Fees Act."
Therefore, in view of the above, affixation of court fee on appeals arising out of the judgments and decrees of the Judge Referee Court will be covered under the provisions of Section 8 of the Court Fees Act, 1870, irrespective of the fact whether filed by the claimants or the acquiring department. In the instant appeal, court fee of only Rs.500/- has been affixed, which is not in terms of the provisions of Section 8 of the Court Fees Act, 1870. However , as no appeal could be dismissed on account of the deficiency of court fee, unless an opportunity is provided to the appellants to make good the said deficiency , therefore, the appellants are required under the law to make good the deficiency of the court fee. Siddique khan and others v. Abdul Shakur khan and another PED 1984 SC 289 and Noor Mohammad and others v . Mohammad Ashraf and others SCMR 1988 1955 .
11. So far as merits of the case are concerned, this Court vide judgment dated 18.10.2017 in RFA No.18-D/2014 accepted the appeals, set aside the judgments and decrees dated 23.11.2013 and remanded the cases to learned Referee Judge/Additional District Judge-V, D.I.Khan for re-writing of judgments and giving its findings on the report of local commission after hearing the parties and in case the learned Referee Court arrived at a conclusion that the report of local commission is not believable, it may appoint a fresh local commission for spot inspection to ascertain correct market value of the acquired land. After remand, the learned Referee Judge, vide impugned judgment, allowed the reference and enhanced the compensation at the rate of Rs.6,00,000/- per kanal with 15% compulsory acquisition charges and 6% simple interest. It appears that the learned Referee Court has been influenced from (Ex.C.W.1/2) the site plan and fixed the compensation at the above rate. However, the report of commission was objected by the appellants by way of filing objections against the said report, but perusal of the impugned judgment shows that the report of local commission (Ex.C.W.1/1) was neither confirmed by the Referee Court nor any findings were given on the objections filed by appellants. Furthermore, the learned local commissioner had also not conducted the commission proceedings in accordance with the terms of its appointment. It is well settled that if local commission fails to conduct proceedings in accordance with the terms of its appointment, then the Court should appoint a fresh local commission in order to reach at a proper conclusion. The commission proceedings in the matters of land acquisition are of great significance and play a vital and decisive role in determining the true and real market value of the acquired land, as the land owners are always deprived of their lands against their will by resorting to compulsory acquisition proceedings under the Land Acquisition Art, 1894. Moreover, in most of the acquisition proceedings, the amount of compensation is determined on the basis of one year average, which is not the true and real determining factor, therefore, for determination of true, and accurate compensation, the appointment of local commission is essential. Reliance in this respect is placed on the case of Syed Iqbal Shah and others v. National Highway Authority through Chairman and others (2018 CLC Note 117). Reliance is also placed on Sar Anjam Khan v: Chairman National Highway Authority, Islamabad (2016 CLC 216) and Rashad Khan v.
Karachi Development Authority (PLD 1989 Karachi 75). The question of determination of proper and adequate compensation came up for hearing before the apex Court in the case of Land Acquisition Collector v. Mst. Iqbal Begum and others (PLD 2010 SC 719) wherein it was held that:- "It would be relevant to mention here that the land in question is situated in the surroundings of 'Ravi River' and the average value of the land as per mutations (Ex-P/3 to Ex-P/8) an amount of Rs. 20,000/ per marla plus 15% compulsory acquisition charges and 8% compound interest as admissible under law cannot be declared to be on the high side when examined in the light of prevalent market price in the adjoining Mouzas as is indicative from the Ex.-P/9. The nature of land has been considered by taking into consideration its potentiality and locations. It is worth mentioning that the potentiality of land should not be determined merely at the time of issuance of notification under Section 3 of the Act but it should be also with reference to the use to which land is reasonably capable of being put in the future. Reference in this regard can be made to Market Committee v. Rayyat Ali (1991 SCMR 572). Here at this juncture we may like to point out that the main object of Land of Acquisition Act is to provide complete indemnity to the owner and no property is to be acquired without proper and adequate compensation. (Chairman, Serampore Municipality v. Secretary of State for India AIR 1922 Calcuta 386, West Pakistan WAPDA v. Hiran Begum 1972 SCMR 138). The learned ASC on behalf of appellant was asked pointedly that the compensation as determined by the learned High Court in accordance with the plus factors contained in Section 23 of the Act and minus factors contained in Section 24 of the Act and why it should be reversed but no satisfactory answer could be given by the learned ASC on behalf of appellant except that the compensation appears to be on high side. He, however, could not substantiate "high side" by mentioning any cogent and concrete evidence. "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 gold for gold and not copper for gold." (Nazarul Hussain v. Collector PLD 1990 Lahore 472, Land Acquisition Officer v. Kambar Ali Beg (1981 CLC 556). Various factors have to be taken into consideration i.e. the size and shape of the land, the locality and its situation, the tenure of property, the user, its potential value, and the rise or depression in the value of the land in the locality and even in its near vicinity. In our view real, proper and potential value, keeping in view all the relevant factors have been determined and it is unexceptionable. It is well settled by now that "to determine compensation the Court must ascertain the value on the date of notification, considering various factors including nature and location of acquired land and sale price of adjoining lands. In assessing market value of land, its location, potentiality and price evidenced by transactions of similar land at the time of notification are factors which should be kept in view. One year's average of sales taking place before publication of notification under section 4 of similar land is merely one of the modes of ascertaining market value and is not an absolute yardstick for assessment of compensation.
Moreover, status of acquired land, its potentialities and its likelihood of development and improvement would be necessary factors for determining rate of compensation. "(Water and Sanitation Authority v.
Niaz Muhammad PLD 1992 Quetta 75, Pakistan Buremah Shell Ltd. v. Province of N.-W.F.P. PLC 1993 SCMR 1700, Land Acquisition Officer, Badin District v. Altaf Hussain Shah 1994 CLC 160, Government of Sindh v. Shakir Ali Jafri 1996 SCMR 361). We are not impressed by the contention of learned Advocate Supreme Court on behalf of appellants that the determination of compensation should be based merely on the "past sales" for the reason that the potentiality of land cannot be determined without examining its future prospects and therefore, compensation cannot be based merely on the basis of "past sales". In this regard, we are fortified by the dictum laid down in the following authorities:-- Collector , Land Acquisition v. Abdur Rashid (1996 CLC 1193), West Pak WAPDA v. Hiran Begum (1972 SCMR 138), Islamic University , Bahawalpur v. Khadim Hussain (1990 MLD 2158 ), Government of Pakistan Rawalpindi and another v . Malik Muhammad Aslam and 5 others (1978 SCMR 5 ).
6. We cannot overlook the well entrenched principle i.e. "what a willing purchaser would have paid for the land for the land in question" which is to be followed while fixing the compensation. If any authority is needed, reference can be made to Government of Pakistan Rawalpindi and another v. Malik Muhammad Aslam and S others (1978 SCMR 5 )."
12. For the reasons mentioned above, this appeal is accepted with the condition that the appellants shall make good the deficiency of Court fee in analogy with the provisions of Section 8 of Court Fees Act, 1870, within a period of thirty day from the date of passing of this judgment, failing which, the appeal would be deemed to have been dismissed, the impugned judgment and decree dated 03.5.2018 is set aside and the case is remanded to learned Referee Court/Additional District Judge-V, D.I. Khan with the direction to appoint a fresh local commission with consent of the parties for ascertaining true and accurate market value of the acquired land with reference to its location, potentiality, proximity to road, building sites and its future prospects, strictly in accordance with the guidelines given by the august apex Court in the above referred judgment and decide the reference afresh after hearing learned counsel for the parties. It will be appreciated if the reference is decided within a period of four months after receipt of the record of the case, as the matter pertains to the year , 2009.