MUHAMMAD FAHEEM WALI, J. Appellants through this appeal filed under Section 54 of the Land Acquisition Act, 1894, have impugned the Judgment/Decree 23.01.2021 whereby the learned Judge Referee Court/ADJ-VI D.I.Khan, while allowing the reference petition u/s 18 of the Act, re-determined the rate of compensation as Rs.200,000/- per kanal by enhancing the same from Rs.17,691/- per kanal.
2. Facts of the case, in brief are that, in order to complete a Road Project known as "D.I.Khan -- Sarai Gambila Road Project (N-55)" a chunk of land measuring 282 Kanals and 13 Marlas was intended to be acquired by the National Highway Authority. In this context, acquisition process set into motion through issuance of Notification u/Section 4 of the Land Acquisition Act, 1894, on 31.08.2007 which was published in the official gazette on 06.09.2007. After fulfilling other codal formalities, the Collector Land Acquisition finalized the acquisition process by issuing Award No. 17 dated 08.05.2009, however, fixed per kanal rate of compensation Rs.200,000/- for residential lands and Rs.17,691/- for agricultural lands. Respondents/objectors for redetermination of the rate of compensation, preferred a petition u/s 18 of the Land Acquisition Act, 1894, which was processed in accordance with the procedure, whereby, learned Judge Referee Court recorded evidence of parties and finally, upon hearing arguments of the learned counsel for parties, redetermined and fixed Rs.2,00,000/- per kanal as the rate of compensation of the land acquired vide judgment/decree dated 23.01.2021. Hence, present appeal by the acquiring department.
3. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
4. Record transpires that the land in question was acquired for the construction of D.I.Khan-Sarai Gambila Road (N-55) vide Award No.17 from Mauza Saggu Janubi. The said road has been constructed by expanding already existing D.I.Khan-Bannu Road and the land of respondents was front face to the main road, part and parcel of village site, used for agricultural purposes, residential houses and shops were constructed and business activities were carried on in these shops situated a few kilometres away from the main city D.I.Khan at a 15 minutes' drive. It is also admitted fact that cities are spreading with accelerated speed, encroaching over nearby agricultural land adjoining the city boundaries and the surrounding areas near cities are becoming part and parcel of the city. The land under consideration on account of its location, near to the main city of D.I.Khan and situated on front to front with already established highway running parallel to it, certainly having great potential and could be used for construction of multistorey buildings, shops and other business like installation of gas and petrol pumps etc. the acquiring authority had not denied therefrom the nature of prospective use of the land, however stuck to one year average rates, as supplied by the Collector, based on some sale mutations effected in the area. The status of land acquired is on very high pedestal keeping in view the peculiar location lying adjacent to the busy road next to the populous city of D.I.Khan. it is established principle of law enunciated time and again by Courts that gold be given for gold and copper for copper.
5. Potentiality of land could not be determined without examining its future prospects and therefore, compensation could not be placed merely on the basis of past sales. Compensation shall be taken in its broad meaning and only market value could not be the proper compensation for a land acquired compulsorily. The paramount consideration in determining compensation of land compulsorily acquired would be its location and nature of future use, its location to the main cities and its future prospects to become part of the main cities.
6. Moreover, there can be no denial of the fact that, besides respondents, other land owners too had filed their separate objection petitions and the rate of compensation of the land in the same village acquired through the same award was enhanced upto Rs.20,00,000/- per kanal by dividing the acquired land into four categories, whereby lowest one was paid Rs.500,000/- and those at higher side, their rate, as aforesaid, was fixed at Rs.20,00,000/- per kanal. Other appeals in respect of the affected land owners of same award and same vicinity were also fixed before this Court for hearing and decided today by maintaining the market rates of Rs.20,00,000/- and Rs.15,00,000/- per kanal as awarded by learned Referee Court.
7. In determining the rate of compensation, contemporaneous transactions of the same, adjoining or adjacent as well as the land in the same vicinity or locality; in dissenting precedents, may be taken into account. An award of compensation of a similar, adjacent, adjoining land or in respect of the land acquired in the same vicinity or locality cannot be ignored. The basic criteria for determining value of the land is the future use of a land. In rendering this view, I am fortified by the verdict of the worthy Apex Court laid down in the case of "Mst. Surraya Mehmood Jan" (2015 SCMR 28), and "Sarhad Development Authority N.W.F.P. (now KPK) through COO/CEO (Officio) and others Vs. Nawab Ali Khan and others" (2020 SCMR 265).
8. Needless to mention that although respondents have not filed an appeal before this Court for further enhancement of the rate of compensation so awarded vide impugned judgment but, in this appeal of acquiring department filed under Section 54 of the Land Acquisition Act, 1894, which provides that, subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees and notwithstanding anything to the contrary in the enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the Court. Thus, the appeal under Section 54 of the Act has the same meaning like filed under Section 96 CPC. It is well settled that an appeal is a continuation of the original proceedings and the Appellate Court has ample power to scrutinize the documents on the record. An Appellate Court while hearing an appeal against an order/judgment or a decree of a trial court exercises the same jurisdiction which vested in the trial court. In an appeal, the lis becomes open and the Appellate Court can do all that the original Court could do. Reference in this regard may be made to the law laid down in the cases of "Gul Rehman vs. Gul Nawaz Khan"
(2009 SCMR 589), "Inayat vs. Darbara Singh" (AIR 1920 Lahore 47), "North-West Frontier Province Government, Peshawar vs. Abdul Ghafar Khan" (PLD 1993 SC 418) and "Province of Punjab through Collector Bahawalpur vs. Col. Abdul Majeed" (1997 SCMR 1692).
9. The nutshell of above discussion is that though learned referee Court below fixed the rate of compensation as Rs.200,000/- per kanal but there was absolutely no record or evidence in support thereof except that in the impugned Award rate of residential nature of land was fixed as such. In the circumstances, where this Court while sitting in appellate jurisdiction can reopen all the controversy, the rates of lands, so fixed by the Referee Court and upheld by this Court as well as worthy Apex Court, in the same vicinity acquired under the same award, are the best available evidence and cannot be ignored in fixing the rate of compensation in the instant case. As above mentioned, the lands acquired under Award No.17 were divided into four different categories whereby the bottom rate was fixed Rs.500,000/- per kanal, therefore, propriety demands that the rates in the instant case too be fixed at lowest side i.e. Rs.500,000/- per kanal to eliminate the aspect of discrimination among affected land owners. Besides, the worthy Apex Court declared that such like non-appealing affected land owners were also entitled to the same treatment which had been offered by the Court to the similarly placed appealing parties. Guidance in this regard is derived from the case of "Saddaqat Ali Khan through L.Rs. and others Vs. Collector Land Acquisition and others" (PLD 2010 Supreme Court 878).
10. In view of the foregoing, I while allowing this appeal, modify the impugned judgment/decree dated 23.01.2021 and fix the rate of compensation as Rs.500,000/- per kanal with 15% compulsory acquisition charges and 6% simple interest from date of taking over possession till the date of final payment. Parties are, however, left to bear their own cost.