' The above-detailed appeals filed under section 54 of the Land Acquisition Act, arise from a common judgment of the learned Acquisition Judge, dated 14th April, 1987, relate to one and the same award and almost present identical points for determination, therefore, these are concluded through this single judgment.
2. By award No,13648-5 drawn on 28th December, 1983 certain land including that of the objectors was acquired by the Collector for Mustehkum Cement Company Ltd. For procurement of clay.
Notification under section 4 of the Land Asquisition Act, was earlier issued on 17th October, 1981. The price of the land acquired from the owners/objectors was assessed at Rs,4,186.60, per kanal in the award by the Collector and the objectors not satisfied with this award approached the Collector under section 18 of the Land Acquisition Act to refer their claim for enhancement of compensation amount. In the Court of the learned Reference Judge, both the Collector as well as Mustehkum Cement Company contested the objection petitions and filed written statements wherein the allegations made in the objection petitions were refuted. Petitioner appeared as P.W. 2 to support his claim as given in the objection petition. Abdur Razaq Patwari Halqa and Subedar Major Rtd. Mohammad Asghar were examined as P.W. 1 and P.W. 3 respectively to substantiate the view point of the objector as given in the objection petition. The respondents examined R.W. 1 Mohammad Sadiq Patwari Acquisition, in the Office of Acquisition Collector, who brought on record copy of the award as Ex.R.W.1/1 and one year average Ex.R.W.1/2 on the basis of which compensation in the award was determined by the Collector. R.W.2 Zakaud Din Shah Ishrat, Deputy General Manager Administration, Mustehkum Cement Factory appeared for the acquiring body.
3. It is to be noted that an area of 236 kanals 11 marlas in the same vicinity and for the same purpose was also acquired through the award in question from Malik Mohammad Iqbal and Malik Mohammad Ashraf but its price was fixed by the owner and the acquiring company through private negotiation at the rate of Rs,5,447.40 per kanal which was accepted and adopted by the Collector in the award. The learned Acquisition Judge while giving finding on additional issue No,1 relating to classification of the land came to the conclusion that there was no error in fixing the kind of land as Maira in the award as the same kind was shown in the Revenue Record. The issue of market value is additional issue No,2 and while determining this issue, the private negotiated price between the said Malik Brothers and the acquiring cement factory was adopted and accordingly the sale price was estimated to be Rs,5,457.46 per kanal.
4. The decision of the Reference Judge has been challenged by the objectors as well as the Collector, the former pray that the price should be further enhanced to Rs,50,000 per kanal while the latter submits that it should be reduced to Rs,4,186.60 per kanal, the one fixed in the award of the Collector.
5. These appeals were once argued by the learned counsel for the parties finally and the judgments were reserved, but the learned counsel for the appellants in some cases and respondents in other, Khan Imtiaz Mohammad Khan applied for re-hearing the appeals, as according to him he could not properly assist the Court at that time for lack of full preparation and even on the day of hearing he had shown his inability but the Court insisted on hearing the appeals, therefore, he could not render satisfactory assistance. In the interest of justice, these applications were allowed and the learned counsel for both the parties were again afforded opportunity to address the Court.
6. This time, Khan Imtiaz Mohammad Khan raised preliminary objection regarding deficient court- fee on the appeal of the objectors-appellants, the learned counsel of the either side did not seriously resist the preliminary objection and rather agreed to affix the requisite court-fee which subsequently they did within the time which was given for this purpose.
7. The learned counsel pleading for the objectors-appellants challenged the issues covering the allegations of the classification of the land and market value and argued that the acquired land should have either been classified as Charri (near to Abadi) as it was near to built up area or industrial area as it has assumed commercial character. It was next argued that the acquired land could also be treated as `I\Ichri' because Khanpur Canal has been extended to this area and lands round about are irrigated from the said watercource. In order to lend support to his contention the relevant portions of the statements of the witnesses were read out. It was also stressed that potential value of the land, being near to commercial area, and the gap which occurred in between the date of notification under section 4 and the preparation of the award has been overlooked, which has prejudiced his clients. The learned counsel arguing for the Collector submitted that the land in question has correctly been held as Maira because it was so shown in the Revenue Record and that there was no evidence to hold otherwise. Section 23 Clause First of the Land Acquisition Act was then referred to, which describes factors for determning the market value. It was next submitted that neither this land can be classified as commercial nor agricultural as it is far away from industrial area and the irrigation source in the shape of Khanpur Canal had not been put into operation at the relevant time. It was argued that section 25(2) of the Land Acquisition Act will be impediment in the way of the objectors to claim more than that asked for before the Collector. Moreover, the learned counsel was of the view that as no evidence was led before the Collector to justify enhanced compensation, therefore, no increase in this amount was legally justified by the Collector. It was submitted that the land acquired through private negotiation from Malik Brothers cannot be a touch-stone for determination of the sale price in this case as that land was irrigated through tubewell, whereas the one which belonged to the objector was Maira type. It was also pointed out that five years price average Ex.R.W.1/R-2, preceding the date of notification giving Rs,2,536.20 price per kanal should have been adopted in this case. The learned counsel criticized the enhanced amount in the award of the Court and justified that determined by the Collector and extensively referred to various items of evidence to support his view point.
8. We studied the record in the light of the arguments addressed at the Bar.
9. The acquired land has been classified as `Maira' in the Revenue Record and there is no satisfactory reliable evidence to dislodge the presumption attached to the Revenue Record, therefore, we agree with the finding of the Acquisition Judge and the Collector regarding the classification of the land and affirm the same. It is, however, noticed that the learned Reference Judge failed to consider the evidence on record relevant to determine the potential value of the acquired land. The factors for determining the compensation as given in section 23 of the Land Acquisition Act are not exhaustive and it cannot in all cases be confined to the period of notification under section 4 but can cover the period in future in appropriate cases. When the evidence on record justifies such a course, the owner will be entitled to demand the price of his land with reference to the use to which it can reasonably be put in future. The value is, therefore, to be assessed keeping in view its potentialities in future. P.W.1 Patwari in his statement stated, "Khasra No,160 is at a distance of 160 karams from Farooqia Cement Factory. In the Aks I have shown with green colour, canal which comes from Khanpur Dam. In the site plan part (II) a Pakka Kathi coming out from the canal, passing from Khasra No,64865 has been shown by me. This Kathi comes to Khasra No,164 and onwards from that Khasra number there is a Katcha Kathi upto Khasra No,158".
The objector himself while giving the location of his land deposed, "My land which has been acquired is Maira type of land as the canal of Khanpur Dam has been extended to this area and, moreover, this land is situated near village Abadi and it is situated within industrial area. There are several factories like Mustehkum Cement Factory, Ali Asbestos, Hazara Woollen Mills, Kawa-Saki and Flour Mills". P.W. 3 described it, This land is Nehri type of land, as canal from Khanpur has been extended to this area and again said, "this land is surrounded on one side by Mustehkum Cement Factory, on the other side is village Abadi of Nazar Abad. Railway Station, Road and Bus Stop are quite near to the land under reference". The area in which this land is situated has come under industrial area as several industries have been installed there. R.W. 2 in his statement stated, " I have seen the land being acquired for the said purpose in this objection and the other connected objections pertaining to this land. At the time of acquisition the land was agricultural land" and again said, "There is a canal of Khanpur Dam which passes from the area of village Shadi as well as from near the area under acquisition. In the area of village Shadi there is a Hazara Woollen Mill which has been installed for the last 5/6 years" and again said, "Jadoon Flour Mill has also been installed near Farooqia Cement Factory at a distance of 1/2 mile. Similarly, Dalda, Tyre and Rubber manufacturing factory had been installed at a distance of 1/2 mile from our factory. It is correct that the station constructed near Cement factory is used for general public travelling by train" and again, "The water canal was constructed about two and a half years ago and came into operation since about 2 years". The learned Reference Judge has also admitted, "No doubt, the land in dispute is in the neighbourhood of respondent No,2 which is a huge industrial concern but as it was not acquired as a building site for an industry but was acquired for procuring clay which is an important ingredient in the manufacture of cement, therefore, it could not be classified as industrial/commercial site". It is manifest from the evidence on record that the land in question had sufficient capabilities and chances in future either to become agricultural through Khanpur Canal or could be used for construction of shops/houses etc. In view of its proximity with Mustehkum Cement Factory and other nearby commercial units. The potential value of the land should have been kept in view by the Reference Judge while assessing the price. Moreover, the interval of more than 2 years that elapsed in between the notification under section 4 and the award cannot be overlooked on account of sharp rise in the prices of the land and excessive depreciation of the value of the currency. It is laid down in P.L.D. 1988 S.C. 32, "It is, therefore, evident that the factors for determination of the market value of the land proposed to be acquired are not restricted only to the time of issuance of the notification under section 4 of the Land Acquisition Act or any period prior to it, but can also relate to the period in future (i.e, to period after the issuance of notification under section 4 of the Act)". In 1985 S.C.M.R. Page 767 it has been observed, "Ss.4 & 18-- Compensation---Working out---Notification of acquisition issued in 1978---Award made some two years later when there was no upward trend in prices of land---Average market value of sales of land in village during relevant period being Rs,23,000 per kanal---Value of land for purposes of payment of compensation was ordered to be enhanced to Rs,25,000 per kanal. Instead of Rs,20,000 per kanal in circumstances.--(Compensation)".
10. In the present cases we have got satisfactory evidence in shape of Ex.P.W.1/3 which gives one year average value from 20th May, 1982 to 19th May, 1983 of similar kind of land as the one acquired from the objectors. According to this average the price per kanal comes to Rs,6,482.40 although this relates to a period a bit later to the notification under section 4 but earlier than the preparation of the award, therefore, in the light of the dictum laid down in 1985 SCM R 767, (ii) PLD 1988 SC 32,
(iii) PLD 1986 SC 158 and (iv) PLD 1970 Quetta 35, there appears no hurdle in adopting it as basis for the determination of compensation in these appeals. The objection of the learned counsel for the respondent regarding the bar of section 25(2) is misplaced as there is no evidence of any notice having been served on the objectors in terms of section 9 of the Act.
11. Consequently the appeals filed by the objectors-appellants are partially allowed to the extent that the price per kanal is enhanced to Rs,6,482.40 per kanal and the judgment and decree of Acquisition Judge in these appeals are accordingly modified to this limit. These appellants will also be entitled to 15% compulsory acquisition charges apart from simple interest at the rate of 6% per annum on the excess amount from date of possession till its payment. The appeals of the Collector automatically fail and are