MUHAMMAD FAHEEM WALI, J. This single judgment is intended for the decision of present appeal as well as connected appeal filed by the acquiring department i.e. R.F.A. No.77-D/2020 titled "Project Director NHA and others v. Wazir Badshah and others" as both these appeals are the outcome of one and the same Judgment/ Decree dated 17.06.2020, rendered by learned Judge Referee Court/ JADJ-IV D.I. Khan, whereby the learned Court while allowing the reference of objectors, filed under Section 18 of the Land Acquisition Act, 1894, enhanced per kanal rate of compensation from Rs.17,691/- to Rs.15,00,000/-.
2. Facts forming factual canvas of these connected appeals 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 under 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. Appellants/ objectors for redetermination of the rate of compensation, preferred a petition under section 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 also deputed a local commissioner for spot inspection, whose statement was thereafter recorded. Finally, upon hearing arguments of the learned counsel for parties, the learned Referee Court vide judgment/decree dated 17.06.2020 redetermined and fixed Rs.15,00,000/- per kanal as the rate of compensation of the land acquired from appellants/objectors. The judgment/decree dated 17.06.2020 has been assailed by the objectors in the instant appeal with a claim of further enhancement, whereas, acquiring department filed connected appeal with a prayer to dismiss the reference and to restore the compensation as determined in the award No.17 dated 08.05.2009.
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 counsel, same will be adequately dealt with at appropriate stages in this judgment.
4. Before discussing the merits of these appeals, I deem it apposite to mention that this case has a chequered history as, previously, the reference was decided four times and each time this Court remanded the case after setting aside the decision of Referee Court. However, for the last time, the case was remanded vide judgment dated 20.064019 in R.F.A. No.08-D/2019 with the direction to the learned referee Court to redetermine the rate of compensation with reference to the case of Qari Falaksher etc., who were awarded compensation to the tune of Rs.20,00,000/-. After receiving the case file on remand the learned trial court, Patwari Halqa Mauza Sagu Janubi was examined as CW-1, and then the learned Referee Court distinguished the acquired land in two categories for the purpose of determination of compensation; the land which was adjacent to the lands of Qari Falaksher etc was allowed the rate of compensation Rs.20,00,000/- per kanal, whereas, the land of appellants/objectors was placed in the second category for the award of compensation Rs.15,00,000/- per kanal.
5. Now, adverting to the merits of this case; in view of the appeals from objectors as well as acquiring department, the focal points for determination of controversy are: a. the adequacy of the rate of compensation awarded by the Collector; b. the consequence of rate of compensation redetermined by the Referee Court; c. the scope, if any, of further enhancement of the rate of compensation over and above the rate so determined by the referee Court.
6. In the cases of acquisition of lands, the value in general can also be measured by a consideration of the prices that have been obtained in the past for lands of similar nature, quality and in similar positions, and this is what must be meant In general by 'the market value' in Section 23 of the Land Acquisition Act, 1894 (the Act). No doubt that the nature of land acquired from appellants, as mentioned in the Award, was agricultural but said nature was only for the purpose of maintaining the record of rights and cultivation and same does not mean that the said land was not usable for any other purposes. Sometimes it happens that the land to be valued possesses some unusual, and it may be, unique features, as regards its position or its potentialities. In such a case the Collector in determining its value will have no market value to guide him, and he will have to ascertain as best he may from the materials before him, what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities. For it has been established by numerous authorities that the land is not to be valued merely by reference to the use to which it is being put at the time of acquisition but also by reference to the uses to which it is reasonably capable of being put in the future; and in this regard some factors which the Referee Court has to be kept in mind in re-assessing the compensation are listed below: a. market value of the acquired land at the prevalent time and its potential; b. its likelihood of development and improvement; c. a willing purchaser would pay to a willing buyer in an open market arms-length transaction entered into without any compulsion; d. loss or injury occurred by severing of acquired land from other property of the land owner; e. loss or injury by change of residence or place of business and loss of profit; f. delay in the consummation of acquisition proceedings and; peculiar facts and circumstances of each case.
In addition to above, according to Section 23 of the Land Acquisition Act, 1894 (as amended by Khyber Pakhtunkhwa Ordinance No. XVII of 2001) firstly the rate of compensation is to be determined on the basis of market-value of the land at the date of taking possession of the land.
While rendering this view I am fortified by the dictum laid down by the worthy Apex Court in the case of "Air Weapon Complex through DG v. Muhammad Aslam and others" (2018 SCMR 779).
7. Honourable Supreme Court of Pakistan in the case of "Land Acquisition Collector and others v.
Mst. Iqbal Begum and others" PLD 2010 Supreme Court 719) enlisted certain factors for determination of compensation i.e. a. size and shape of the lend, b. the locality and its situation, c. the tenure of property, the uses, its potential value, and d. the rise or depression in the value of the land in the locality and even in its near vicinity.
8. There is no doubt that in ascertaining the value of such land the possibility of its being used for building purposes would have to be taken into account. But it is equally true that the land must not be valued as though it had already been built upon. That is the effect of the principle embodied in fifth clause of Section 24 of the Act which is expressed by saying that it is possibilities of the land and not its realised possibilities that must be taken into consideration.
9. In evaluating a particular piece of land which can possibly be used for building purposes, the potential or the future possibility must be estimated by the Land Acquisition Collector or the Referee Court as best as it may from the materials before it for the land in that particular position and with those particular, potentialities. However, compensation for the future utility or potentiality cannot be ascertained with mathematical accuracy. It must be estimated by prudent business calculations and not by mere speculative and impractical imagination. The principle that in the case of land which can reasonably be put to future use as a building site, it must be evaluated not on the basis of its existing value as a piece of agricultural land but with the future potentiality added to it, is too well settled to be the subject-matter of any controversy at the present date.
Indeed, the learned trial Judge has taken into account the fact that the land under acquisition must be evaluated not only on the basis of its present market value but also on the basis of its having a future potentiality. The claim of appellants/objectors in this appeal is that some erroneous principle has been invoked but that the future potentiality has not been adequately valued.
10. Before the learned Referee Court there was the case of Qari Falaksher etc., whose lands too were acquired through the same Award No.17 and the Referee Court assessed Rs.20,00,000/- per kanal as the rate of compensation. This rate was confirmed by this Court in R.F.A. No. 09-D/2014 vide Judgment dated 04.12.2014 which was further upheld by the august Supreme Court of Pakistan.
Besides, this Court vide Judgment dated 20.06.2019 in R.F.A. No.08-D/2018, had remanded the instant case and other similar cases with the direction to the learned Referee Judge to determine whether potentiality of the land of objectors and as to whether the land of objector is identical to the land whose compensation has been enhanced to Rs.20,00,000/- per kanal or otherwise.
11. It is almost admitted position that the land acquired under Award No.17 is superior land, and a metalled road i.e. D.I.Khan-Bannu Road, was already passing through it and acquisition was only for the purpose of expansion of the Road. In the Commission Report Ex.C.W.2/1, the learned local commissioner noted the nature of acquired land to be semi commercial which could be used for corporate or residential purposes at any time. Moreover, in Para-C of the Award in question, there is mention of market value of residential/commercial property to be Rs.10,00,000/- per kanal at the time of issuance of Notification under Section 4 of the Act but such rate was, thereafter, altered to Rs.200,000/- per kanal. After the remand vide Judgment dated 20.06.2019 by this Court with the direction to ascertain the similarities of the acquired land of appellants with that of the Qari Falaksher and then fix the rate of compensation, the learned Referee Judge for the purpose of assistance, recorded statements of Patwari Halqa of Mauza Sagu Janubi and ADK D.1.Khan and in the light of their assistances, the land acquired through award No,17 was divided into two categories, firstly the category of land similar to that of the Qari Falaksher etc for which the rate of compensation was assessed to be Rs.20,00,000/- per kanal; and the second category different from the first one whereby rate of compensation was fixed as Rs,15,00,000/- per kanal. In support of the latter kind of lands, the learned Referee Judge referred the cases of Lahore Khan and Muhammad Ramzan, who were awarded rate of compensation Rs. 15,00,000/- per kanal for land acquired through the same Award and in the same vicinity vide Judgment dated 11.11.2013 by the learned ADJ-III/Judge Referee Court and such rates were affirmed by this Court vide Judgment dated 04.12.2014. Thus, there can be no denial of the fact that there had been two indices for assessm ent of the rate of compensation for lands acquired through Award No.17, whereby one category was worth Rs.20 lac per kanal and the other one worth Rs.15 lac per kanal. The learned trial court after recording statements of Patwari Halqa and ADK of D.I.Khan as court witnesses ascertained that the land of appellants was comprising Khasra Nos.290, 291, 292, 306, 321 and 322 which was 400 feet away from the land of said Muhammad Ramzan (compensation was awarded Rs. 15 lac per kanal), whereas, the land of Qari Falaksher was acquired from Khasra No.98 which was already a built-up property, which is not the case of appellants; and thus the rate of compensation for acquired land of appellants stood fixed at Rs.15,00,000/- per kanal by the learned trial court in view of the compensation of similar lands of the vicinity. Reliance in this regard may be derived from the verdict laid down by the august Supreme Court in the case of "Sarhad Development Authority N.W.F.P. (now KPK) through COO/CEO (Officio) and others v.
Nawab Ali Khan and others" (2020 SCMR 265).
12. Now, the objectors and the acquiring departments are both dissatisfied; objectors claim that having recognised the need for evaluating the potentiality, the lower Court made an underestimate of that potentiality by putting it at Rs. 15 lac per kanal, while counsel for acquiring department is of the view that lower Court really indulged in a feat of imagination in valuing the potentiality of the land at the said rate. There is no evidence adduced by the affectees that there were any prospective purchasers who were willing to buy the acquired land for house building purposes. It is, therefore, contended by the learned counsel for acquiring department that in the absence of any such evidence, the lower Court should have confirmed the compensation awarded by the Land Acquisition Collector as being the best under the circumstances.
13. The learned trial Judge, as already mentioned hereinabove, did recognise the need for evaluating the potentiality. I am in agreement with the lower Court that the land under acquisition has a potentiality but in evaluating the potentiality the fact must be taken into account that particular land was already situated at the brink of D.I.Khan-Bannu Road and this acquired land was surrounded by residential areas, petrol pump, brick kiln, hotels and shops. In evaluating the potentiality these facts cannot be ignored and it is, therefore, that I have come to the conclusion that the acquiring department was not justified in fixing the value of potentiality at Rs.17,691/- per kanal for agricultural or Rs.200,000/- per kanal for residential nature lands. This Court is thus not persuaded that the learned Counsel representing acquiring department is right in his contention that this potentiality should not be evaluated. On an overall consideration of the facts of the case, this Court thinks that the lower Court has struck a via-media between two extremes and I see no ground for interference with the valuation arrived at by the lower Court, because no erroneous principle has been invoked by the lower Court and no important piece of evidence has been overlooked or mis-applied, these being the grounds on which an appellate Court would interfere in appeals involving questions of valuation. The Judgment of learned trial Court was in-fact in line with the observation of the worthy Apex Court in the case of "Land Acquisition Collector, G. S. C, N.
T.D. C., (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan" (2015 SCMR 28), wherein it was observed: "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."
14. In view of the above, it is held that the value so assessed by the collector in the impugned award was unjust and too meagre which was adequately enhanced to the tune of Rs.15,00,000/- by the learned Referee Court, keeping in view the nature, locale, potential value and the rate of compensation of similar lands acquired in the same vicinity under the same award. There is no scope of further enhancement of the compensation; and no evidence, record or any other documentary proof in the support of claim of further enhancement could have been referred. The only assertion that the appellants may be awarded the compensation equal to that, which was awarded to Qari Falaksher etc., cannot be considered to be valid as the land acquired from Qari Falaksher etc. was built-up property whereas there was no building site in the property acquired from appellant.
15. In the nutshell, both the appeals, filed by objectors and acquiring department respectively, are devoid of merits and thus, dismissed. Cost shall follow the events.