FAZAL SUBHAN, J. Through this appeal, filed under section 54 of Land Acquisition Act, 1894 (Act), the appellants have impugned the judgment and decree dated: 20.04.2019 passed by learned Senior Civil Judge/Judge Referee Court, Battagram, whereby objection petition/reference filed by the respondent/objector was accepted and value of compensation amount of acquired land was enhanced with 15% compulsory acquisition charges and 6% interest from the date of taking over the possession of the land, till payment of the amount.
2. Facts of the case in brief arc that vide Award No. 52 dated: 19.07.2016, the appellants had acquired the land situated in Moza Chappargram and the Collector Land Acquisition, District Battagram fixed the compensation of Hutar Kind of land as Rs. 33175.12/- per Marla and for Banjer Qadeem as Rs. 4146.89/- per marla on the basis of one-year average.
3. Respondent being not satisfied with the compensation so fixed in the award, filed objection petition under section 18 of the Act for enhancement of said compensation. Appellants appeared and contested the objection petition/reference by filing written statement. The learned Referee Court after framing of issues, recording evidence and after hearing learned counsel for parties vide judgment 20.04.2019 accepted the objection petition by enhancing the per marla market value of the acquired land as Rs. 3,45,000/- with 15% compulsory acquisition charges and 6% interest from the date of taking over the possession of land till payment of the amount. Appellants being aggrieved with the judgment passed by the learned Referee Court, approached this Court by filing instant regular first appeal.
4. Arguments heard and record perused.
5. Record transpires that through award No. 52 dated: 19.07.2016, land measuring 25 kanals and 08 marlas in Moza Chappargram was acquired by fixing the following rates of different kinds of land.
S. NoKind of land Cost per MarlaCost per Kanal 01Hutar 33175.12/- 663502.40/- 02Banjer Qadeem414,89/- 82937.80/-
6. The respondent being not in agreement to the compensation/rates fixed in the award, preferred an objection petition/reference under section 18 of the Act. The appellants contested the suit and during trial the respondent examined Fair Muhammad Patwari mouza Chappargram as OW-1, who brought revenue record, out of which more relevant is fard jamabandi Ex OW-1/2, one year averages Ex OW-1/D-1 to Ex OW-1/D-3.
7. The respondent while appearing as OW-2 claimed per marla price as Rs. 5 lacs, claiming the same to be commercial in nature and is situated at Karakuram Highway (KKI I). Further stated that the land is situated near Community Centre, Petrol Pump and Floor Mill etc and therefore, the compensation has not been determined keeping in view its future potentiality.
8. Yar Muhammad Assistant Land Acquisition, DC office appeared as RW-1 and averred that the compensation was determined on the basis of one-year average of makhloot land, hence, price fixed in the award is correct and reference filed by respondent being baseless was to be dismissed.
In cross examination, he admitted that the acquired land is situated on the side of KKH and is adjacent to Social Welfare Department building, Floor Mill and Service Station and further admitted that due to development, there are prospects of increase of prices in the future.
9. Record further reveals that the trial Court appointed local commission for assessment of market value of the acquired land and his report is on file as Lx CW-1/1.
10. From the record, it is evident that as per revenue record, the respondent is owner of entire khasra No. 157 measuing 8 marlas, and in the Misl-e-Haqiqat Ex OW-1/1, it was Huter kind of land but now its nature is changed to Banjar Qadeem. The Land Acquisition Collector has determined the compensation as Rs. 33175.12 for Huter and Rs. 4146.89 for Banjar Qadeer on the basis of one- year average Ex OW-1/D-1.
11. Section 23 of the Act has provided multiple factors for determination of amount of compensation to be awarded for an acquired land, which arc on following: - Matters to be considered in determining compensation:- (I) In determining the amount of compensation to be awarded land acquired under this Act the Court shall lake into consider consideration: ["firstly, the market-value of the Land at the date of taking possession of the land."] EXPLANATION For the purpose of determining the market value, the Court shall take into account transfer of land similarly situated and in similar use. The potential-value of the laud to be acquired if put to a different use, shall only he taken into consideration if it is proved that land similarly situated and previously in similar use has, before the date of the notification under subsection (I) of section 4, been transferred with a view to being put to the use relied upon as affecting the potential value of the land to he acquired: Provided that
(i) if the market-value has been increased inconsequence of the land being put to a use which is unlawful or contrary to public policy that use shall he disregarded and the market-value shall he deemed to be the market-value of the land if it were put to ordinary use; and
(ii) if the market-value of any building has been increased m consequence of the building being so overcrowded as to be dangerous to the health oldie inmates such overcrowding shall he disregarded and the market-value shall he deemed to be the market-value of the building if occupied by such number of persons only as can be accommodated in it without risk of danger to health from overcrowding.
Secondly, the damage sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land: fourthly, the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land by reason of the acquisition injuriously affecting his other property, movable or immovable in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change: and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
[(2) In addition to the market-value of the land as above provided, the Court shall award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition, if the acquisition has been made .for a public purpose and a sum of twenty five per centum on such market-value if the acquisition has been made for a Company].
12. The determination of amount of compensation through market value of the land at the date of publication of notification under section 4(1) of the Act therefore, is one of the mode of determination of compensation, and for that matter the one-year average of the sale price of the properties sold in the same mouza, one year prior to the date of notification under section 4(1) of the Act, are normally taken into account. It needs no reiteration that acquisition of land is a coercive method of taking the land from rightful owner and there is always possibility that by reason of such acquisition, the land owner may lose his only source of earning and therefore, while deciding the objection petition/reference the Authorities/Courts are expected to extend maximum benefit to adequately compensate the person interested and therefore, while determining the compensation, other factors like the location or situation of land, nearness to town or residential area, its proximity to any other building commercially used and closeness to the metaled road/ highways, potential value and future prospects arc other factors which can equally be considered while fixing the fair price of the land.
13. In the present case, there is sufficient material on record which supports the contentions of the respondent that the acquired land is situated right at one side of the KKH and there are buildings like Floor Mill, Social Welfare Complex and Petrol Pump with Service Station and thus has much better future prospects and therefore, mere determination of compensation on one-year average is not a. desirable yardstick for such determination.
14. The learned Referee Court, while enhancing the compensation through impugned judgment has relied upon valuation table Ex OW-1/8 issued by the Deputy Commissioner, for District Battagram, which is also a factor to be legally considered for assessment and determination of fair compensation, keeping in view the locations of the land that it is situated right on the edge of KKH, with many other commercial buildings in the vicinity, the nature of the acquired land is commercial and therefore as per valuation table Ex OW-1/8, the price fixed by the Deputy Commissioner for commercial land is Rs. 345,000/- per marla and therefore, the enhancement of compensation by the Referee Court is within the mandate of law. In arriving to the above findings, reliance is placed on the case of Nisar Ahmad Khan and other Vs Collector Land Acquisition, reported in PLD 2002 Supreme Court 25, wherein, it was held that:- In the instant appeals, we have thoroughly examined the evidence of the Halqa Patwari, the land owners as well as the Sub-Divisional Officer and Patwari, SCARP, WAPDA and the average sale price of the lands similarly E situated and in identical use during the period when these lands were acquired. We are of the considered view that fair market value, as determined by the high Court, does not suffer from any legal infirmity or misappreciation of the material facts. Indeed the landowners are entitled to maximum possible benefit in the circumstances of each case for the reason that such lands are acquired not by way of mutual negotiations but under the State power conferred on the public functionaries. Courts are, therefore, always 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 that behalf.
Similarly, in the case of Province of Sind through Collector of District Dadu and others Vs Ramzan and others reported in PLD 2004 Supreme Court 512, it was held that:- The most important aspect qua the lands compulsorily acquired is, that the mandatory returns proposed to be given to the landowner is the compensation and not the market value. Very section 23 provides for various matters to be brought under consideration while determining compensation. Market value is only one of such matters to be considered by the Collector or Courts. Compensation is a very wider term indicating that the landowners, for various reasons, is to be compensated and not merely paid the price of land which is just an interaction of supply and demand fixed between a willing buyer and willing seller.
15. The August Supreme Court of Pakistan in the case of Land Acquisition Collector, G.S.C, N.T.D.C., (WAPD4), Lahore and another-Vs-Mst. Surraya Mehmood Jan reported in 2015 SCMR 28, it was authoritatively held that: - The facts of the instant case have necessarily been examined in the light of aforesaid case-law. In this case, Notification under section 4 of the Act of 1894 was issued on 17-2-1977 and the declaration under section 6 of the Act of 1894 was made on 31-5-1986. It appears that possession of the land or a part thereof was taken over on 30 12-1985 and the Award was announced on 30- 6-1988 and the amount of compensation, as per the Award, was Rs. 6,000 per marla (which was enhanced to Rs. 8,000 per marla by the learned Referee Judge/Senior Civil Judge, Kasur and maintained by way of the impugned judgment). Vide letter dated 9-4-1988 issued by the Deputy Commissioner/District Collector, Kasur, addressed to the Commissioner, Lahore Division, Lahore, which is available at page 104 of the paper-book, indicated that the present market price of the land in question is Rs. 8,000 per marla. The said letter i.e. Exh-R-I is also indicative of the escalation of the market price of the land from the date of Notification under Section 4 of the Act of 1894: and the pronouncement of the Award. The potential value of the land in view of its strategic location cannot be ignored. It is in evidence that the land in question is situated on the main Lahore- Kasur-Ferozpur Road, Lahore, within the limits of the Municipal Committee, Kasur, near the Sessions Court, Kasur, opposite the Cantonment Area, in the vicinity of the Tehsil Municipal Office and the District Courts and is adjoining the Highway Rest House. The Canal Colony is also located nearby. It has also been brought on the record that in the year 1991, the Municipal Committee, Kasur, sold property near the land in question in an open auction, which fetched price at the rate of Rs. 13,750 per marla. It is also available on the record that at the time of announcement of the Award, a Representative of appellant No.2 i.e. WAPDA was present and stated that the rate of Rs.
6,000 per marla was acceptable to the Department. It is on the basis of the aforesaid evidence that the learned Referee Judge/Senior Civil Judge, Kasur, concluded that the compensation to which the respondent is entitled was at the rate of Rs. 8,000 per marla.
Likewise, the August Supreme Court of in case titled: Province of Punjab through Land Acquisition Collector and another-VS-Begum Aziza reported as 2014 SCM R 75, has also held that:- Admittedly the suit land is located about 25 karams away from Murree Road and opposite to the office of Survey of Pakistan. P. W. Sardar Khan, Deputy MEO admitted in cross-examination that there are shops on one side of the said office as well as on its back; that adjacent to the land is the Ojhri Camp; that across the said camp also there are shops and that on the other side of the road are commercial as well as residential properties including a petrol pump. Muhammad Riaz A.W.2 an official of the office of Deputy Commissioner, Rawalpindi, admitted that as per the valuation table issued by the office of the Deputy Commissioner, the commercial land is assessed at Rs. 2,25,000 per marla whereas the residential land is assessed as Rs. 35,000 per marla in the said area. The valuation table was prepared and notified in terms of section 27-A of the Stamp Act, 1899. This valuation table by itself may not furnish conclusive evidence qua the value of the property but this can be taken note of particularly in absence of any evidence to the contrary regarding the value of the property and other factors reflected in the evidence with regard to the potential value of the property. While assessing the compensation, the Collector has not only to consider the market value of the land in question but its potential value. 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 he 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. In Abdur Raul Khan v. Land Acquisition Collector/D.C. (1991 SCMR 2164) this court while dilating upon the question of rate of compensation laid down following principles germane to section 23 of the Land Acquisition Act which may he kept in view. Those are as follows:-- "(i) That an entry in the Revenue Record as to the nature of the land may not be conclusive, for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable of becoming Chahi land;
(ii) That while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered:
(iii) That the market value of the land is normally to be taken as existing on the date of publication of the notification under section 4(1) of the Act but for determining the same the prices on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years mar he considered including other factors like potential value etc."
16. In view of the above, it is held that the learned Referee Court after properly evaluating all the characteristics of acquired land, has fixed/enhanced its compensation amount. Learned counsel for appellants railed to point out any illegality, irregularity or jurisdictional defect in the impugned judgment, therefore, the instant appeal is hereby dismissed, accordingly.