WIQAR AHMAD, J.---This order is directed to dispose of R.F.A No. 17-M of 2016 filed by the appellants against judgment dated 27.01.2016 of the Court of learned Referee Court/Additional District Judge-VI Swat, whereby the amount of compensation of. the acquired land of the respondents was enhanced from Rs. 133/- per sq. feet to Rs. 900/-per sq. feet with 15 % compulsory acquisition charges and 6% simple interest from the date of acquisition.
2. A land measuring 7 kanals owned by the petitioners/land owners was acquired for construction of Police Station Behrain vide an award bearing No. 2340/5/Acq/DC(S) dated 11.02.2013 issued by the Deputy Commissioner/Land Acquisition Collector Swat under section 11 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act"). The cost of land measuring 7 kanals was fixed at the rate of Rs. 7,25,000/- per kanal total amounting to Rs. 50,75,000/- with 15% compulsory acquisition charges amounting to Rs. 7,61,250/-. The petitioners felt aggrieved and filed a reference for enhancement of the amount under section 18 of the Act before the District Collector Swat, which was sent to the learned Referee Court Swat for answering. Both the parties led their respective evidence before the learned Referee Court. After framing of issues and on conclusion of proceedings in the reference, the learned Referee Court through the impugned judgment dated 27.01.2016 ordered enhancement of the rate of acquisition from Rs. 133/- per sq. feet to Rs. 900/- per sq. feet with 15 % compulsory acquisition charges and 6% simple interest from the date of acquisition. The appellants (government) feeling aggrieved from, the said judgment of the learned Referee Court filed the instant appeal under section 54 of the Act.
3. The learned Astt: A:G appearing on behalf of the appellants contended that the petitioners/land owners could not prove their case for enhancement of acquisition through the evidence produced by them, despite that the learned Referee Court ordered enhancement of the amount without any justification. He further added that the mutations produced by them (respondents/government) before the learned Referee Court had not at all been considered and reliance have only been made by the learned Referee Court on the documents produced by respondents and the report of the local commission appointed in the case and thus the judgment was suffering from non-reading and misreading of evidence.
4. The learned counsel for respondents have relied upon judgments reported as PLD 1986 Supreme Court 158, PLD 2010 Supreme Court 719, 2016 SCMR 1141, 2018 SCMR 779, 1996 CLC 1193, 2018 MLD 331 (Peshawar), 2018 CLC Note 117 and 2018 CLC 1445/and submitted that the property of respondents acquired for construction of the police station was admittedly commercial in nature and situated in one of the most scenic place in Swat and same was suitable for construction of hotels and commercial plazas and thus carried greater market value. He further added that the law provides for compensating a landlord's property, who is divested of his rights in property against his will and the judgment of learned Referee Court was therefore based on proper appreciation of evidence which did not warrant any interference.
5. I have heard arguments of learned Astt: A.G appearing on behalf of the appellants, learned counsel for respondents and perused the record.
6. The pivotal question for determination before this Court is, "whether the amount of compensation has rightly been enhanced by the learned Referee Court from Rs. 133/- per sq. feet to Rs. 900/- per sq. feet with 15 % compulsory acquisition charges and 6% simple interest or otherwise?"
7. The petitioners/landlords in order to make out a case for enhancement produced eight (08) witnesses. Their attorney namely Jehanzeb Khan appeared as PW-1 who claimed that the property was situated on the main road leading from Mingora to Kalam and therefore was commercial in nature. He have also asserted in his statement that the property was situated in the midst of Behrain which is a tourist spot and the property was quite feasible for construction of hotels, commercial plazas and residential units etc. On the basis of the said and other assertions he requested for fixation of a fair market value, which according to the witness could not be less than Rs. 1,000/-per sq. feet, in any manner. The other witnesses produced by him as PW-2, PW-3, PW-4 and PW-5 have also supported the said assertions of the attorney of respondents. One Javiq Iqbal Muharir in the office of Sub-Registrar Behrain was examined as PW-6, who produced the record of concerned registration office containing registered deed No. 30 attested on 12.05.2012, registered deed No. 9 attested on 02.12.2012 and deed No. 22 attested on 04.04.2012 and exhibited all the deeds as PW-6/1. Patwari Halqa was examined as PW-7, who has exhibited copy of the current Jamabandi including Aks Shajara Kishtwar as PW-7/1 and PW- 7/2 respectively. PW-8 was the statement of Senior Clerk from Deputy Commissioner Office, in whose statement the award and certain other documents relating to the proceedings of acquisition were exhibited as PW-8/1.
8. On the other hand, the defendants (government) produced one Shah Sultan, Assistant in the office of Collector Swat as DW-1, who produced the relevant record in respect of acquisition of land for construction of police station at Behrain. Likewise, Hazrat Younas, ADK was produced as OW-2 who produced the relevant revenue record of the Muaza. One Ghulam Sarwar Tehsildar Behrain appeared as DW-3 and reiterated the stance of the respondents (government).
9. Certain facts asserted by the PWs have not been specifically agitated against during the course of cross - examination. Noticeable among these facts, were that the property acquired through the award in hand was situated on the main road leading from Mingora to Kalam. Behrain is not only falling in the way to the main tourist destination of Kalam but by itself is a place possessing great attraction for the tourists. The property acquired was measuring 7 kanals and comprised of one chunk of land and was thus suitable for the construction of hotels and other buildings, which may have had commercial use and utility. The said facts have not been denied by the witnesses of respondents also (appellants herein). DW-1 have stated during his cross- examination that it is correct that Behrain of District Swat was a favorite tourist destination. Similarly, DW-3 have also stated in his cross-examination that the property of the objectors was situated adjacent to Behrain road.
The Aks Shajara Kishtwar exhibited as PW-7/2 also shows the property to have been situated on the side of the main road.
10. The learned Referee Court had also appointed Mr. Saif-ul-Malook, Advocate as local commissioner with the following TOR; {{URDU TEXT}} The learned local commissioner conducted the necessary proceedings and submitted his report which was later on exhibited in his statement as Ex.CW-1/1. The local commission has described the layout of the area acquired and its surroundings as well. The learned local commission had also gathered certain mutations and sale deeds in the surroundings of the acquired property and had prepared a detailed break-up {{URDU TEXT}} of the mutations whereby he had taken out market value of the property to be Rs.1475.50 per sq. feet. The learned local commission had also annexed with his report the sale deeds relied upon by him, statement of the Patwari Halqa and certain revenue record as well as letter dated 30.12.2009 of the office of District Collector Revenue and Estate Swat, wherein commercial land had been defined as "land falling within one hundred yards on both sides of the main road". He had finally suggested that at the time of acquisition of the property the market rate of the property in dispute was Rs. 1,000/- per sq. feet as claimed by the respondents/land owners. The local commissioner was also examined in Court as CW-1. Nothing beneficial to the case of the appellants could be extracted from the mouth of learned local commissioner in his cross-examination.
11. The learned Astt: A.G has however raised objection that the local commission had not considered all the mutations of the Muaza while preparing his detailed report on one year average basis for determining the market value. The learned Astt: A.G had also raised the objection to the judgment of the learned Referee Court, while arguing his case before this Court that the mutations produced by ADK while testifying as DW-2, copies of which were exhibited on record as DW-2/1, had not been read as evidence by the learned Referee Court. It is important to be noted that the said mutations had been entered in the entire Mauza of Behrain. The Land Acquisition Collector had also based his valuation of the market value of the property in dispute, on one year average of the year of issuance of Notification under section 4 in the year 2011. The said one year average {{URDU TEXT}} containing the mutations entered in Mauza Behrain during the period commencing from 19th September 2010 and ending on 19th September 2011 was also produced in evidence as Ex. DW-1/5. The first line of cross-examination of DW-2 is relevant in this respect which is reproduced hereunder for ready reference; {{URDU TEXT}} Further assertion made in his cross-examination is also relevant which is reproduced hereunder for ready reference; {{URDU TEXT}} The reproduced part of the statement of DW-2 itself shows that the appellants could not establish the fact that the mutations produced by them were related to the area surrounding or falling in the vicinity of the acquired land. No clue or guess is available as to what part of area was sold through the mutations produced by them or relied upon by the Collector while determining the market value. It is also clear that Behrain is a hilly area and may carry totally different rates in cases of commercial, residential, cultivable area and uninhabitable barren hilly area. The Hon'ble Supreme Court of Pakistan in the case of "Murad Khan v. Land Acquisition Collector, Peshawar and another" reported as "1999 SCMR 1647" has held as follows;
12. We are of the considered view, however, that the schedule of average price for four years or for that matter even of one year are not the only criterion for determining the amount of compensation but the "other material" brought on the file is quite relevant to determine the correct amount of compensation for the acquired land.
In the said judgment, the Hon'ble Court had taken pain to consolidate the main principles from the then existing case law on the subject of "determination of market value", very beautifully in the following words;
(i) The data from which the market value of the land can be estimated is given in Rule 13 of the North- West Frontier Province Circular No.54 issued presumably under section 55 of the Act.
(ii) The best method to work out the market value is the practical method of a prudent man laid down in Article 2, Qanun-e-Shahadat, 1984 to examine and analyse all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land.
(iii) Subsection (1) of section 23 of the Land Acquisition Act provides that in determining the amount of compensation the Court shall take into consideration the market value, loss by reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, 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. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition.
(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(1) of the Land Acquisition 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 neighbouring locality, the potential value of the land need not be separately, awarded because such sales cover the potential value.
(v) 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 but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits.
(vi) 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 the advantages, present or future, which the land possesses in the hands of the owners.
(viii) In determining the quantum of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction.
(ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser this means that Court has to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist.
(x) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the "past sales" should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as Court- witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in question, because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The "previous sales" of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired.
(xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value.
(xii) In cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on 'the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act.
(xiii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted, should be taken into consideration.
(xiv) The phrase "market value of the land" as used in section 23(1), of the Act means "value to the owner" and, therefore, such value must be the basis for determination of compensation. The standard must be not a subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration.
12. In the case in hand it was established in the evidence that the area acquired through the award had been an area of commercial use and utility. It is also common knowledge that the market value of other areas like residential and agriculture in nature may not be compared to a commercial part of the land in the said Mauza and there may be a hell of difference in the two. The said difference may get further widened in places like Behrain where the area of commercial utility may be utilized for construction of hotels etc and in an uninhabitable part which may not be of any utility. The average sale price deducted from the mutations of property effected in the whole Mauza was not establishing a proper touchstone for discerning market value of the acquired land. The mutations have rightly been ignored by the local commission as well as the learned Referee Court.
13. Beside the report of the local commission, the petitioners/landlords have brought on record registered deeds, copies of which have been exhibited in the evidence as PW-6/1. No objection has been raised to the said documents by the appellants at the time of its exhibition. Through sale deed No. 9 attested on 02.02.2012 an area of 377 sq. feet was sold for a sum of Rs. 11,00,000/-. The rate of the property sold, comes out to be Rs.
2,917/-per sq. feet. Another area of 500 sq. feet was sold for Rs. 15,00,000/-vide sale deed No. 22 dated 04.04.2012, the rate of the property sold thus comes out to be Rs.3,000/- per sq feet. Another area of 1289 sq feet was alleged to have been sold for consideration of Rs.40,00,000/- vide sale deed No. 30 dated 12.05.2012 and in this case the rate per sq. feet comes out to Rs.3,103/- The learned local commission have found these transactions of sale to be in respect of an area having a similar market value. The respondents have also led oral evidence in respect of the areas sold through the said deeds, to have been similar to the property acquired in terms of its market value. These transactions have been executed after issuance of notice under section 4 of the Act on 09.09.2011 but the gape in between is not that much wide. These properties have not been sold by the respondents, but other people in the normal course of their transactions and nobody could be presumed to have been disposing property of their commercial value in the vicinity through registered deeds, just for giving benefit to the respondents. The market value given in the said deeds have therefore rightly been considered by the learned Referee Court while assessing the value of compensation in the case in hand. Reliance in this respect is placed on the judgment of the Hon'ble Lahore High Court given in the case of "Government of Pakistan v. Mulvi Ahmad Saeed" reported as "1983 CLC 414" and the judgment of Hon'ble Calcutta High Court in the case of "Jomendra Nath Chatteriee v. State of West Bengal" reported as "AIR 1971 Calcutta 458", both of which had been quoted by the Hon'ble Apex Court with approval in the case of Murad Khan Supra.
14. The conclusion and findings of the learned Referee Judge, whereby he had fixed Rs. 900/- per sq. feet as appropriate amount of compensation in the case in hand, is found to be suitable in the circumstances of the case and no instance of misreading or non-reading could be pointed out by the learned Astt: A.G while arguing the case on behalf of the appellants.
15. In light of what has been discussed above, the appeal in hand was found to have been without any merits and same is accordingly dismissed.