MUHAMMAD IJAZ KHAN, J. Through this single judgment, this Court intends to decide the following two Regular First Appeals and a Cross Objection, the detail of which are as under:- i. R.F.A No. 34-M/2016 titled Muzafar-ul-Mulk Khan v. Government of Khyber Pakhtunkhwa through Secretary Works and Services Department and others; ii. R.F.A No. 39-M/2016 titled Government of Khyber Pakhtunkhwa through Secretary Works and Services Department and others v. Sherin Zada and others; iii. Obj: No. 2-M/2016 In R.F.A 39/2016 tilted Sherin Zada and others v. Government of Khyber Pakhtunkhwa through Secretary Works and Services Department and others.
2. Precisely the facts necessary for the disposal of these appeals/cross objection are that the Worthy Chief Minister, Punjab during his visit to District Swat Khyber Pakhtunkhwa announced establishment of a Hospital in Swat and subsequently to materialize the aforesaid announcement, a committee headed by the Secretary Health Punjab and officials of the Health Department of the Khyber Pakhtunkhwa visited and inspected the site and selected the site for the construction of "Hospital/Specialized Center for Kidney Diseases by the Government of Punjab/Punjab Trust Hospital at Sangota/Manglawar, District Swat" and accordingly the Government of Khyber Pakhtunkhwa through the District Collector Swat declared its intentions for acquisition of the specified property for public purpose by issuing of Notification under section 4 of the Land Acquisition Act, 1894 dated 19.04.2012 and then a corrigendum to the Notification dated 26.04.2012, whereby the property measuring 47 Kanal 17 Marlas in Khasra Nos. 531 to 535, 540, 542, 543, 545 and 547 was ascertained and identified.
3. After the aforesaid Notification, the land owners filed an objection purportedly under section 5 of the Act of 1894 to the effect that the property as find mentioned in the Notification under section 4 of the Act of 1894 dated 19.04.2012 is of highly potential value as the same is situated on main Swat-Kalam road and its market value is not less than Rs. 700 per sq-ft and thereafter, after following of the prescribed procedure, the same culminated into issuance of Award No.7572- 76/295/Acq; dated 28.09.2012, where the market value of the acquired land was fixed on the basis of Ausat Yaksala of different kinds of land, as under:- S. No.Kind of LandArea to be acquiredAusat Yalcsala rate per KanalValulition table rate per KanalCompensation KanalMarla 01Abi 24 18 Rs. 3,84,615/38 ------- Rs. 95,76,923/- 02Bari 06 08 Rs. 5,81,346/85 ------- Rs. 37,20,620/- 03Bagh 14 11 Rs. 9,48,827/93 -------Rs.
1,38,05,446/- 04Chair Mumkin Abadi01 00 Rs. 1,57,915/21 -------Rs. 1,57,915/- 05Digar Chair Mumkin (Lakhtai)01 00 --------------- Rs. 67,000/- Rs. 67,000/- Cost of land 47 17 --------------- -------Rs.
2,73,27,904/- 15 % C.A.A Rs. 40,99,186/- 08 % Compound Interest Rs. 21,86,232/- Total Cost of Land Rs. 3,36,13,322/- 04 % TMA Charges etc Rs. 10,93,116/- Total Land Compensation etcRs.
3,47,06,438/-
4. The land owners being dissatisfied from the above-stated market value, Sherin Zada and 34 others filed a reference under section 18 of the Act of 1894. Later on, one Muzafar-ul-Mulk (appellant of R.F.A No.34-M/2016) filed an application for impleadment as objector in the aforesaid reference, which application was allowed and he was also impleaded as objector No. 36 in the reference vide order/judgment dated 09.04.2013.
5. The respondents/acquiring department were summoned and they submitted their reply and consequently the learned Referee Judge framed as many as 07 issues and the parties were required to produce their pro and contra evidence.
6. In support of their objection/reference, the objectors/land owners produced Hussain Ahmad Patwari Halqa of Moza Sangota Swat as PW-1, Abdul Mateen, the objector No. 22 and attorney of the rest of objectors appeared as PW-1, Samiullah appeared as PW-2 and Amir Sawab as PW3 and they thereafter closed their evidence. In rebuttal, the respondents/acquiring department produced only one witness namely Shahi Sultan Assistant of the office of Deputy Commissioner, District Swat as RW-1.
7. After the close of evidence, the objectors/land owners submitted an application under section 75, C.P.C. for appointment of a local commission, to which the respondents/acquiring department submitted their reply by opposing the same, however the said application was allowed and consequently Hamid Iqbal Manezai Advocate was appointed as local commissioner, who visited the site on 02.08.2015 and accordingly submitted his report on 08.09.2015 alongwith various statements of persons belonging to the area including joint statement of the parties. The Worthy commissioner was examined as CW-1, who also exhibited his report as CW 1/1 (34 sheets).
8. Thereafter, the arguments of all stakeholders were heard in detail and the reference was answered as follows vide the impugned order/ judgment dated 03.05.2016:- "Relief: Keeping in view of my above discussion, the land owners' compensation of acquired land is enhanced to Rs. 300/- per sq.ft along with 15 compulsory compensation acquisition charges.
Compensation of building, trees and wells etc. fixed in award are maintained along with 6% simple mark-up/inflation rate per annum from the date of award till to date. Parties are left to bear their own cost."
9. Feeling aggrieved of the aforesaid order/judgment, one of the land owner namely Muzafar-ul- Mulk has filed R.F.A No. 34-M/2016 titled "Muzafar-ul-Mulk Khan v. Government of Khyber Pakhtunkhwa through Secretary Works and Services Department and others", the acquiring department has filed R.F.A No. 39-M/2016 titled "Government of Khyber Pakhtunkhwa through Secretary Works and Services Department and others v. Sherin Zada and others" and other land owners have filed Cross Objection No.2-M/2016 in R.F.A 39/2016 tilted "Sherin Zada and others v.
Government of Khyber Pakhtunkhwa through Secretary Works and Services Department and others".
10. Arguments of learned counsel for the private parties as well as the learned Asst: A.G representing the Provincial Government were heard in detail and the record perused with their able assistance.
11. The main epitome and nucleus of the controversy between the parties is the "market value" of the acquired property. The land owners have objected that while ascertaining the market value of the acquired property, neither the Collector nor the learned Referee Judge has appreciated the potentiality of the acquired land, whereas the acquiring department is of the view that the Collector has properly fixed the compensation amount while the Referee Judge his wrongly enhanced the compensation amount from Rs. 170 sq-ft to Rs. 300 sq-ft.
12. In view of the above, the moot questions for determination of this Court are as under:- i. Whether the Worthy District Collector Swat has rightly fixed Rs. 170 per sq-ft? ii. Whether the learned Referee Judge has rightly enhanced the compensation amount from Rs.
170 per sq-ft to Rs. 300 per sq-ft? iii. What would be the proper compensation amount on the available evidence/materials?
13. In order to answer the above questions, now this Court proceeds to analyze and appreciate the evidence available on file. It is the case of land owners/objectors right from inception that the acquired land is a commercial property and it has the potentiality of all kinds of utility like construction of market, construction of houses, as well as is agricultural land of 1st class. The aforesaid qualities/characters of the acquired land are fully reflected from their objection petition filed under section 5-A of the Act of 1894 with specific reference to market value of Rs. 700 per sq-ft and later on before the Referee Judge when they appeared in Court, they remained sticked to their stance. In this regard, when PW-1 namely Abdul Mateen appeared for himself as well as attorney for rest of the land owners, he made the following statement:- In cross-examination, it was brought from him as under-- Similarly, when PW-2 namely Samiullah appeared, he stated as under:-- In cross-examination, the following admission was brought from him:- Similarly, when PW-3 namely Amir Sawab appeared, he stated as under:-- In cross-examination, it was brought from him:-- In view of the above, it can safely be concluded that the acquired land is situated within 100 meters of the main Swat-Kalam road and the same can be utilized for commercial, residential and agricultural purposes.
14. The aforesaid full of potential character of the acquired land has also been admitted by the respondent/government official himself when Shahi Sultan, Assistant of the office of Deputy Commissioner, District Swat appeared as RW-1, who has candidly admitted as under:- The aforesaid fair and honest admissions made by the respondents witness clearly shows that the acquired land is a high class of land and as such is its present utility and specially its future potentiality could not be disputed.
15. It is also a matter of record that on the application of the land owners, a commission was appointed, who too, visited, inspected and submitted its report, where too he has made some serious efforts to come up with the existing and future potentiality of the acquired land as well as of the adequate compensation which could be paid to the land owners. In his report, he stated as under:- The aforesaid commissioner report strongly established that the acquired land is having existence and future potentiality of commercial activities, it can be used for residential purpose and over and above that the present market value of the same is Rs. 500/- per sq-ft.
16. In view of the above evidence available on file, it is held that neither the Collector nor the Referee Judge has fixed a proper and adequate compensation amount of the acquired land.
17. It is also worth consideration that the land has been acquired in a hilly area, where the prime and main factor for potentiality and future prospect is entirely depended that the land is plane and accessible to the nearby road which is exactly the case here as the acquired land comprising of plane area and situated just 100 meters from main Swat-Kalam Road, but this aspect too was ignored by the two fora below while determining the market value of the acquired land.
18. It had been a consistent view of the Hon'ble Supreme Court of Pakistan as well as of this Court that while determining the market value of the acquired land, not only the existing potentiality and market value of the acquired land is to be considered but its future potentiality and tendency of inflated rate in future is also to be considered. It has also to be borne in mind that it is not a transaction between a willing purchaser and willing seller rather it is a transaction which has forced upon the land owner and is against his consent. It has also to be kept in mind while determining the market value of the acquired land that through compulsory acquisition process, a fundamental right of the land owner as enshrined in Article 24 of The Constitution of Islamic Republic of Pakistan, 1973 has been made subservient to the Land Acquisition Act and as such through such process, a citizen has been pushed to a disadvantageous position. With such background of the transaction, a land owner has every right that he/they may be compensated on the basis of celebrated phenomena of "gold for gold and not copper for gold".
19. In this case, the worthy Collector and the learned Referee Judge based their decision/ judgment on the existing potentiality of the acquired land and the factor of its future potentiality has totally been ignored' and as such on the face of record, they have erred in determining the market value of the acquired land. It is settled since long that while determining the market value of the acquired land, multiple factors including its location, existing potentiality, proximity to road or any commercial building and over and above its future prospects have to be considered.
When seen on the above touchstone, both the worthy Collector and the learned Referee Judge has not properly fixed the market value of the acquired land, specially one fails to understand that how and on what material the learned Referee Judge has fixed the rate as Rs. 300/- per sq-ft as the whole evidence either speaks of Rs. 700/- per sq-ft or at least of Rs. 500/- per sq-ft.
20. The Hon'ble apex Court recently in the case titled Sarhad Development Authority N.W.F.P.
(Now KPK) through COO/CEO (Officio) and others v. Nawab Ali Khan and others reported as 2020 SCMR 265 has dilated upon that how and in what manner and on the basis of various factors, the market value of the acquired land is to be determined. In para-13 of the judgment, it was held that before parting with the issue in hand, it is pertinent to note that, precedents reflect a consistent trend to also consider for the purposes of determining. the "market value" of property to be acquired, its "potential value" or essentially, the future use to which the said property can be put to.
And in doing so, there is judicial consensus in considering sale transactions of similar nature of immovable property in the adjoining khasras or even mauzas taking place even after the date of publication of the Notification under section 4(1) of the Act for adjudging the "market value", and in doing so to finally fix the amount of compensation to be awarded to the landowners for the property acquired. In the case of Province of Punjab through Land Acquisition Collector and another v. Begum Aziza reported as 2014 SCMR 75, the Hon'ble apex Court has further clarified and expanded the scope of considering sale transactions, as to its time and location, for determining the amount of compensation to be paid for the acquired land in terms that:- "The market value is normally taken up as one existing on the date of notification under section 4(1) of the Land Acquisition Act under the principle of willing buyer and willing seller while the potential value was the value to which similar lands could be put to any use in future. Thus in determining the quantum of compensation the exercise may not be restricted to the time of the aforesaid notification but its future value may be taken into account 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 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.............
The notification under section 4 of the Act was published on 27.04.1981; two corrigenda were issued on 6.10.1982; notification under section 5 was published on 20.7.1983; the declaration under section 6 was published on 1.2.1984 and the award was announced on 28.03.1985. Thus it took four years for appellants to complete the acquisition proceedings. The prices may have escalated during this period and this escalation has to be kept in view while assessing the potential value of the land. This is in line with the law laid down by this Court in Province of Sindh v. Ramzan (PLD 2004 SC 512), Abdul Majeed and others v. Muhammad Subhan and others (1999 SCMR 1245 at 1255) and Pakistan Burma Shell Limited v. Province of N.-W.F.P. and others (1993 SCMR 1700)."
In the case of Land Acquisition Collector, G.S.C., N.T.D.C., (WAPDA), Lahore and another v. Mst.
Surraya Mehmood Jan reported as 2015 SCMR 28, the Hon'ble apex Court has confirmed its earlier views in terms that while undertaking this exercise, 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 classification of the land in the Revenue Record cannot be the sole criteria for determining its value and its potential i.e. the use of which the said land can be put, must also be a factor. In this behalf, the use of the land in its vicinity needs to be examined.
21. In the case of Land Acquisition Collector and others v. Mst. Iqbal Begum and others reported as PLD 2010 Supreme Court 719, the Hon'ble apex Court has also held that 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 pride 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 assessm ent 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. Similarly, it was also held by the Hon'ble apex Court in the case of Mst. Bibi Shah Ban (deceased) through L.Rs. and others v. Land Acquisition Collector, A.C., Mardan and others reported as 2019 SCMR 599 that Article 24(1) of the Constitution of the Islamic Republic of Pakistan ("the Constitution") stipulates that, "No person shall be deprived of his property save in accordance with law." And, Article 24(2) of the Constitution mandates the payment of compensation for land compulsorily acquired. Depriving a person of property is an exception to the fundamental right to hold and enjoy property. The owner must be promptly compensated for the compulsorily acquired property.
22. This Court in the case titled Collector Land Acquisition, Haripur and another v. Col. Sardar Ahmad Yar jung Durrani and another reported as 2021 CLC 255 has also held that it is very important to note that in the Land Acquisition Act, 1894, for the payment of price of land to affected landowners, the word "COMPENSATION" is used and not the word "MARKET VALUE" however, compensation should not be less than the market value. There is much difference between the terms 'compensation' and 'market value'. The market value is a highest price for which a property is exchanged on the date of valuation between a willing buyer and a willing seller in an arm's- length transaction wherein the parties acted knowledgeably, prudently, and without compulsion.
Whereas, the term 'compensation' though used in various sections of the Land Acquisition Act, 1894 but has not been defined therein. But, as per dictionary meaning the compensation means "something, typically money, awarded to someone in recognition of loss, suffering, or injury" or "money that is paid to someone in exchange for something that has been lost or damaged or for some problem". As the property was acquired against the will of owner, therefore, in order to eliminate the sense of deprivation and discrimination, the affected landlord is compensated with the amount not less than market value prevailing at the time of acquisition. It would be unjust to the landowner if the amount of compensation is less and similarly it would be unjust to the public interest, if he is awarded more and it is based on the principle 'quid pro quo'. The Holy Prophet (peace be upon him) has guided us with saying, "Sell gold in exchange of equivalent gold, sell silver in exchange of equivalent silver, sell dates in exchange of equivalent dates, sell wheat in exchange of equivalent wheat, sell salt in exchange of equivalent salt, sell barley in exchange of equivalent barley, but if a person transacts in excess, it will be usury. However, sell gold for silver anyway you please on the condition it is hand-to-hand (spot) and sell barley for date anyway you please on the condition it is hand-to-hand (spot)." Therefore, in order to maintain equilibrium between individual interest of an affected landowner and general interest of public at large, the compensation should always be that amount on which a seller can willingly sell his land and that is not much or less than the market value.
23. As far as fixation of the market value on the basis of one year average price sale alone is concerned, such criteria has never been approved and affirmed by the Hon'ble Apex Court as well as by this Court. In the case of Government of Pakistan through Military Estate Officer Abbottabad and another v. Ghulam Murtaza and others reported as 2016 SCMR 1141, the Hon'ble apex Court has held that numerous judgments and dictas given and laid down by this Court with binding and laying guiding principles on the subject issue have unfortunately been conveniently ignored by the Collector as he remained stuck to the one year average without taking care of present and future potentiality of the land acquired. It has been repeatedly laid down that being a compulsory acquisition of land for public purposes, the owners of the land are deprived of its utility while at the same time the Collectors Acquisition simply impose their own opinion ordinarily based on one year average which is not a correct approach to the matter, as has been laid down by this Court.
24. So, in view of the above and keeping the evidence brought on record by the parties qua the location of the acquired land which is situated 100 meters from the main Swat-Kalam Road, and existence of commercial building including Petrol Pumps, markets, shops and by applying the aforesaid yardstick consistently elucidated and approved through numerous judicial pronouncements, the order/judgment of the learned Referee Judge dated 03.05.2016 is modified to the extent that the compensation of the acquired land is further enhanced from Rs. 300/-per sq-ft to Rs. 500/- per sq-ft along with 15% compulsory acquisition charges. Rest of the order/judgment is maintained/upheld. Consequently, the R.F.A No. 34-M/2016 and Cross Objection No. 2-M/2016 in R.F.A No. 39-M12016 are disposed of in the above terms, whereas R.F.A No. 39-M/2016 is dismissed.
Cost shall follow the event.
25. C.M No. 945-M/2016: Through the instant application, the applicant/objector/respondent No.28 namely Mian Badshah son of Abdul Jabbar seeks his transposition from the panel of respondents to that of the appellants.
26. Since, the interest of the applicant/ objector and that of the appellant is one and the same, therefore the instant application is allowed and he is hereby transposed from the panel respondents to that of the appellants. The office is directed to make necessary entries in the memo of this appeal as well as in the relevant record.