S M ATTIQUE SHAH, J. Record shows that the respondent-department had acquired certain land for the construction of "Link Road from Motorway Wall Interchange to Torn, District Nowshera" vide Award No.2349-55/DOR&E/ACQ/NSR, dated 01.11.2011 and; the compensation amount of the acquired land was fixed as Rs.8006/- per marla along with 15% compulsory acquisition charges.
Being dis-satisfied from the same, the landowners challenged the ibid Award throw their respective Reference petitions under section 18 of the Land Acquisition Act, 1894 before the learned Judge, Referee Court, Nowshera for enhancement of compensation amount to the tune of Rs.1,00,000/- per marla, which were disposed of in terms of entitling the landowners for enhanced compensation amount at the rate of Rs.25,000/- per marla with 15% compulsory acquisition charges and; 6% simple interest on the enhancement amount, minus the amount, if paid to the petitioners.
2. Being aggrieved from the said findings, the landowners have filed the instant appeal as well as connected RFAs. Nos.286 to 288,293, 295, 302 to 304, 321, 322-P/2015 and; 118-P/2023 for further enhancement of the compensation amount of their acquired land while the acquiring department has filed RFAs. Nos.280 to 284, 297, 298, 306, 307, 310 to 314-P/2015 for straightway rejection of the references of the landowners. As the aforesaid appeals filed by the landowners and; the acquiring department pertain to one and; the same Award, therefore, this court intends to dispose of all these appeals through this common judgment.
3. I have heard learned counsel for the parties at a considerable length and; also gone through the entire record with their valuable assistance.
4. A bare perusal of the impugned Award reflects that the worthy Collector Land Acquisition while determining the compensation of the acquired land has failed to conduct a comprehensive inquiry in order to arrive at just conclusion, rather, he while relying upon the average sale price/yaksala of the preceding year had fixed the compensation of the acquired land. Thus, the said determination of compensation being contrary to law cannot be allowed to remain in field in any circumstances.
5. Since the matter in question revolves around the determination of fair, proper and; just compensation of the acquired land, therefore, it is more apt to reproduce section 23 of the Land Acquisition Act, 1894, which reads as under:-
23. Matters to be considered in determining compensation. (1) In determining the amount of compensation to be awarded for land acquired under the Act, the Court shall take into consideration-first, the market-value of the land at the date of the publication of the notification under section 4, subsection (1).
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 land to be acquired if put to a different use shall only be 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 (1) 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 be acquired: Provided that - (i) if the market-value has been increased in consequence of the land being put to a use which is unlawful or contrary to public policy that use shall be disregarded and the market- value shall be deemed to be the market-value of the land if it wete put to ordinary use; and
(ii) if the market-value of any building has been increased in consequence of the building being so overcrowded as to be dangerous to the health of the inmates, such overcrowding shall be disregarded and the market-value shall be 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, moveable or immoveable, 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 the 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.
6. The very purpose and; object of the ibid provision of law is to protect the rights and; interests of the landowners by the Court while determining the true and; correct amount of compensation for their acquired land keeping in mind its potential value and; future prospects in order to save them from the losses and damages sustained by them as well as their other properties injuriously affected by the acquisition of the acquired land.
7. The Honourable Supreme Court of Pakistan has also provided guidelines for the determination of fair, proper and; just compensation of the land compulsory acquired for the public purpose, which postulate that firstly, the value of similar land in the adjoining khasras and; mauzas to the acquired land was taken into consideration for determining the amount of compensation to be awarded to owners of the acquired property; secondly, the escalation of price of land during the acquisition period till its culmination in issuance of the award could be taken into consideration and; thirdly, for assessing the "potential value" of the acquired land, the most critical factor, which is to be kept in mind is the future utility of the proposed acquired land, keeping in view the availability of facilities for its said utilization; and finally, there can be no mathematical formula set for the determination of the compensation, due to the landowners, for the compulsory acquisition of their property. And thus, various factors depending on the circumstances of each case would cumulatively form the basis for determining the "market value" of the acquired land within the contemplation of section 23(1) of the Act. Wapda through Chairman.[1]
8. In another case, the august Apex Court has held that the average price of one year or four years cannot be the sole criteria for determining the amount of compensation of the acquired land, rather, other material brought on record would also be quite relevant to determine the correct amount of compensation for the acquired land. Murad Khan's case.[2]
9. In the case of Mst. Iqbal Begum[3], it has been held 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 price evidence 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 Land Acquisition Act, 1894 of similar land is merely one of the modes for ascertaining market value and is not an absolute yardstick for assessme nt 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. Potentiality of land cannot be determined without examining its future prospects and therefore, compensation cannot be based merely on the basis of "past sales".
10. The term 'compensation' has been defined by the august Apex Court in Abdul Aziz's case[4]in the following words:- "The word "compensation" Means counter balancing, rendering of equivalent, requital, weighing one thing' against another, but it does not mean weighing copper against gold, therefore, one cannot be compensated without requiring equivalent money.
11. Likewise, the phrase 'market value' of the land has been defined in Abdul Waheed's cases[5] in the following words:- "Market value of the land" as used in section 23(1) 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 declaration but its potential value must be taken into consideration.
12. Now, the moot question for determination before this court is to evaluate, whether the compensation, as determined by the Referee Court, is in line with the above provision of law coupled with the guidelines and; principles set by the Honourable Supreme Court of Pakistan in the ibid judgments and; the evidence adduced by the parties or otherwise?
13. In order to prove the claim regarding the status, location and; potential worth of the acquired land, the landowners produced ADK, Nowshera as PW-1, who produced Mutation Nos.10236, attested on 24.11.2010, 10239, attested on 24.11.2010, 10240 attested on 24.11.2010, 10241, 10242 both attested on 24.11.2010 and 10338, attested on 08.04.2011 (Ex.PW-1/1 to Ex.PW-1/6) respectively of Misri Banda, Distriet Nowshera. During cross-examination the witness admitted as correct that neither these mutations are part and; parcel of the Award nor the names of the petitioners are mentioned in the ibid mutations. Patwari Halqa appeared before the Court as PW-2, who produced a list of Osat Yak Sala (Ex.PW-2/4), wherein, the ibid mutation Nos. 10236, 10239, 10240, 10241, 10242 and; 10338 are mentioned. During cross-examination, he admitted that the ibid mutations and; the rates mentioned therein were taken into consideration for Award in question. Attorney of the landowners while appearing before the court as PW-4 deposed that the rate of the acquired land is about Rs.1,00,000/- per marla and; in support of his plea, he also relied upon the ibid mutations produced by the patwari halqa in his court statement. During cross-examination, he admitted as correct that there is no industry or commercial area situated near the acquired land, rather, the same is in front of main motorway, besides high school, hospital and; shops are also present over there. Sarzamin (PW-5) and Hafiz-ur-Rehman (PW-6) also deposed that the properties were sold in the acquired land against the sale consideration of Rs.1,00,000/- per marla and; that there are shops, high school, hospital and; one plaza has also been constructed nearby the acquired land. During cross- examination, both the witnesses admitted as correct that on the ground there is no constructed industry present, however, the land has already been purchased for such purpose.
14. To ascertain the exact location, potentiality and; future prospect of the acquired land for the purpose of determining the fair market value, the learned Judge Referee Court appointed a local commission with certain directions. He visited the spot and prepared his report available on file as (Ex.P1). He was examined as CW-1. According to his report, the acquired land before acquisition was purely agricultural and; very fertile land being irrigated by Upper Swat Canal and; that the price of it, so assessed in Award is very low, keeping in view the presence of Islamabad Motorway, Wali Interchange, Marhatti Flyover, which have increased the potential value of the same in the future as both the sides of the link road, the adjacent land can be utilized for any purpose except agriculture and; finally, suggested that the price of the acquired land is not less than Rs.25000/- per marla. The local commission has also prepared a sketch of the acquired land. It appears from the same that the acquired land for link road is round about 162 kanals. There are under construction booth/sheds of the Interchange, Kacha Roads, Police Post Marhatti, telephone exchange, Government High/Primary Schools for Boys Marhatti at a distance of 500/600 meters and Peshawar-Islamabad Motorway at a distance of one KM from the Link Road, village Abadi, electricity in the village and; also a Police Post Toni at the end of the acquired land.
15. Keeping in view the report of the local commission, the learned Judge Referee Court while handing down the impugned findings not, only confirmed the commission report but also fixed Rs.25,000/- per marla as compensation of the acquired land. This court believes that the impugned findings qua fixation of Rs.25,000/- per marla as compensation of the acquired land are neither reasonable nor justifiable in the peculiar facts and; circumstances of the case, given the fact that neither the local commission had given any reference of the ibid mutations in his report produced by the revenue staff during trial nor inquired about the market value of the acquired land before its acquisition in terms of subsection (1) of section 23 of the Land Acquisition Act. Even otherwise, the local commission has categorically mentioned in his report that the presence of Peshawar-Islamabad Motorway, Wali Interchange, Marhatti Flyover have increased the potential value of the acquired land in the future and; that the same can be utilized for any purpose except the agriculture but despite that the local commission suggested that the price of acquired land is not less than Rs.25,000/- per marla and; confirmed by the learned Referee Court through the impugned findings, are beyond comprehension in the attending circumstances of the case. The mutations (Ex.PW-1/1 to Ex.PW-1/6) respectively produced by the ADK Nowshera before the learned trial Court suggests that the average price of acquired land is not less than Rs.1,00,000/- per marla, however, the same have not been properly appreciated by the worthy Collector while fixing the compensation of the acquired land as Rs.8006/- per marla and; thereafter, the learned Referee Judge while enhancing the compensation amount as Rs.25,000/- per marla also ignored the ibid mutations and; thereby committed gross miscarriage of justice. Keeping in view the potentiality and; future prospects of the acquired land, which is not only admitted by the local commission in his report but also obvious from the sketch appended therewith, coupled with the transaction of sale effected through the ibid mutations one year prior to the issuance of Notification under section 4 of the Land Acquisition Act, 1894 with regard to the acquired land, this court is of the firmed view that the compensation amount, so determined by the learned Referee Court as Rs.25,000/- per marla is contrary to the provisions of section 23 of the Land Acquisition Act, 1894, principles set by the august Apex Court in the judgments (Supra), evidence adduced by the parties and; the material available on the record of the case and; thus, the same is liable to be enhanced in C the larger interest of justice.
16. Consequently, all the appeals of the landowners are allowed; the impugned findings of the learned Referee Court are modified and; in turn the compensation of the acquired land is enhanced from Rs.25,000/- per marla to Rs.100,000/- per marla to be paid to the landowners. While the appeals filed by the Acquiring Department being meritless are, hereby, dismissed.
1. WAPDA through Chairman and others v. Alam Sher and others [2023 SCMR 981].
2. Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and others [1999 SCMR 1647]
3. Land Acquisition Collector and others v. Mst. Iqbal Begum and others [PLD 2010 SC 719]
4. Abdul Aziz v. Azad Govt. of the State of J&K through Chief Secretary, Muzaffarabad and 2 others [PLD 2010 SC AJ&K 97]
5. Abdul Wahid and 9 others v. The Deputy Commissioner, Karachi [1986 MLD 381]