1. ABDUR REHMAN KHAN, J.---This judgment will dispose of the above-noted appeals along with C.
2. M. No. 106 of 1992 filed in R. F. A. No. 33 of 1987 and C.M. No.110 of 1992 moved in R.F.A. No.56 of 1987.
3. Both the appellants are aggrieved from the decision delivered by the learned Acquisition Judge on 28-1-1987 whereby the market value of the acquired land was fixed at Rs.30 per sq. Foot and the petitioners were also held entitled to the compulsory acquisition charges and interest on the enhanced rate. The appellants in Appeal No.33 of 1987 were owners of the acquired land and they are not satisfied with the sale price determined by the referee Judge, therefore, they have fled the appeal under section 54 of the Land Acquisition Act (henceforth to be referred as the Act). As they claim that they are entitled to receive compensation at the minimum rate of Rs.100 per sq. Foot.
4. The Collector, Land Acquisition and the acquiring department are aggrieved of the compensation, as their stance is that the price worked out by the learned Acquisition Collector was correct and the enhancement in the market value made by the referee Judge was not legally justified. ,
2. The factual background of the controversy agitated in these appeals is that by Award No.9 drawn on 29-5-1978, the Acquisition Collector acquired Khasra No.5277/4905/2 measuring 4 Kanals of land for the construction of bus stand at G.T. Road, Peshawar, Notification under section 4 of the Act was issued on 15-3-1977. The. Collector Acquisition fixed the price of the land at Rs.3,895 per Kanal. The appellants in Appeal No.33 of 1987 approached the Collector, Land Acquisition under section 18 of the Act to refer their objection petition against the fixation of the sale price in the award of the Collector for decision of the Court. The relevant averments of this objection petition are that the land owned by the objectors has been assessed at a very low price because on account of its location and potential value, its price was not less than 8.100 per sq. Foot. It is alleged that the acquired land is situated in industrial and commercial area and is surrounded by ' Abadi'.
5. The Collector, Land Acquisition and the acquiring department, respondents 1 and 2, in their joint written statement opposed the claim of the petitioners to the enhancement and maintained that the price worked out by the Collector was correct.
3. It is to be noted at this stage that the applicants in C.M. No. 106 of 1992 in R.F.A. No.33 of 1987 and in C.M. No.110/92 in R.F.A. No.56 of 1987 had been arrayed as respondents 3 and 4 in the objection petition. However, it appears that they did not contest the objection petition. It would be proper to dispose of the said two applications at this stage as, thereafter, in the judgment, the merits of the case would be determined between the contesting parties. The applicants in the two miscellaneous applications are Mst. Asmat-un---Nisa and Mst. Musarrat Munir. These applications have been submitted under Order XLI, Rule 33 read with Order 1, Rule 10 and sections 141 and 151 of the Civil Procedure Code to imsplead the said two applicants as appellants in the two appeals and to allow them compensation which may be fixed by the Court in respect of the acquired land. The material contents of these applications are that 20 Kanals of land was purchased by Firm M/s. Babu Munir Ghulam Siddique through sale-deed dated 23-11-1942 registered on 18-6-1943. Babu Munir, husband of Mst. Asmat-un-Nisa and father of Mst. Musarrat Munir was partner in the said firm, which was duly registered under the partnership Act. It is alleged that the partnership still persists, and therefore, the reference should have been made in the name of the firm as the property was owned by the firm Babu Munir had died in the year 1954 and was survived by the said two ladies and, thereafter, Ghulam Siddique, petitioner No.1, was running the affair of the firm, therefore, he was bound to file the reference in the name of the firm as the land was included in the assets of the firm. The exclusion of the applicants from the objection petition was described as mala fide act on the part of Ghulam Siddique, petitioner No. 1. These applications were opposed both by the objectors as well as by the Land Acquisition Collector. In their reply, the applications were termed as barred by time and the petitioners were declared as estopped by their conduct from filing the objection petition. The existence of the firm at the time of filing of the objection petition was denied. It was replied that the objectors and the applicants had specified shares in the acquired land and the applicants received the compensation amount without any protest, therefore, they were estopped to agitate the matter of compensation further. Moreover, the applicants failed to file any objection petition in terms of sections 18 and 30 of the Act. Although the applicants had applied to the Acquisition Collector on 6-11-1982 to be impleaded as party but that application was rejected on 19-5-1983 holding it as misconceived. Similarly, they applied to the Acquisition Judge to be transposed as petitioners in the objection petition but that was rejected on 24-10-1984 as it was held that the applicants had not filed any objection petition within time and that they could not be legally transposed. It was, therefore, alleged that both the said orders against the applicants had attained finality and as such they were not legally entitled to impugn these orders by way of collateral proceedings.
4. Arguments were heard in detail on these two applications. Mr. Khurshid Ahmad, Advocate, appearing for the applicants submitted that when an appeal is filed in an acquisition matter, then the entire lis comes before the Court, remains open for determination and, therefore, the Appellate Court can grant the relief even to non-appealing party under Order 41, rule 33 and sections 141 and 151, C.P.C. In support of this proposition, he relied on PLD 1988 Pesh. 71, PLD 1964 SC 502, PLD 1989 SC 510, AIR 1927 Cal. 352, AIR 1963 Punjab 490, 1985 SCMR 401, 1992 SCMR 1208. The rules laid down in the said authorities were under different and distinct circumstances and cannot be applied to the facts of this case. In PLD 1988 Pesh. 71, although the relief was given in appeal to the non-appealing party but that party had preferred objection petition in terms of section 18 of the Act. Moreover, the High Court in the appeal had held that the objectors were entitled to the relief, which naturally included those who had filed the objection petition. Besides that, the entire land was in dispute in those proceedings. In the instant case, the applicants have not filed any objection petition and they have received without protest the amount of compensation for their specified share. 1992 SCMR 1208 also proceeds on entirely different facts as in that case joint decree in favour of the co- sharer was passed, therefore, it was held that the decree could be executed even at the behest of the decree-holder who was not party to the execution proceedings. The relief granted in PLD 1989 SC 510 was made possible, as the Advocate-General did not oppose it. In AIR 1963 Punjab 490, the dictum is that if the property is joint and the co-onwer has no distinct and specific share therein, then a reference under section 18 of the Act by one co-owner would benefit the other co-owner, However, it was also held that in case of specified. Share, the objector would be competent to act only on his behalf. AIR 1927 Cal. 352, would also not apply as in that case, the property related to Wakf property and it was held: "Where the property acquired is Wakf property, although the subject of reference is valuation of the property, it is open to any one of the body of trustees to come forward and ask that he should be allowed to appear in the Court of the Judge and be permitted to place before the Court such material as he may have in his power to enable the Court to arrive at a proper decision as to the value of the trust property. "
6. PLD 1964 SC 502 has no bearing on the points raised in the present case. 1985 SCMR 401 was a case under Arbitration Act, which had distinct provisions from the Land Acquisition Act. Moreover, the learned counsel was probably oblivious of the fact that the applicants had received the share of compensation for their specified share in the property and that too, without any protest. It is also on record that the applicants had approached the Collector Acquisition as far back as 6-11-1982 to be impleaded as party but their prayer was turned down by order-dated 19-5-1983. They again applied to the Acquisition Judge for transposition as petition but that application was also dismissed on 24-10-1984. The applicants did not impugn these orders in any forum, therefore, the present application filed on 30-11-1993 besides being belated one is also bad under the principle of estoppel. The applicants knew about the acquisition proceedings and received the compensation amount without any objection. They also knew about the proceedings before the Acquisition Judge as they were arrayed respondents therein. They applied to be transposed as appellants but failed.
7. However, they kept quiet all along for about a decade and therefore, the orders passed against them attained finality. The next contention advanced from the applicants' side was that the property was owned by the firm and it continued to be as such at the time of acquisition, therefore, the death of the predecessor of the applicants who was a partner of the firm would not affect the status of the property as property of the firm. This argument is devoid of substance as the applicants received compensation of their specified share without any protest, which meant that they did not consider the property to be that of the firm. Moreover, there is no material on record to support the stance of the applicants that after the death of their predecessor in 1954, the partnership continued till 1977 when the property was acquired. The last contention was that the earlier decisions against the applicants, as referred to above, would not amount to res judicata.
8. There is no cavil with this proposition and the applications are not dismissed on that count.
9. However, no one can be permitted to circumvent the process of law. The applicants were required to have proceeded in the matter in accordance with law and no relief can be given in violation of the requirements of law. Section 18 of the Act provides the manner under which the Collector can be approached for reference of the objection petition to the referee Judge. Contents of such application and the time framed under which it is to be made have been prescribed in that section. The petitioner cannot be, therefore, permitted to bypass the relevant law and to be given relief which they never cared to obtain in a manner provided by law. The applications are, therefore, found without substance and are dismissed as such.
5. Now we would refer to the merits of the case to determine as to whether the compensation allowed in the impugned judgment is legal and borne out from the material on record. The contents of the objection petition and written statement have already been referred to above and now it would be pertinent to give brief summary of the evidence on record for proper understanding of the merits of the case of both the sides.
6. P.W.1 is Syed Imdad Ali Shah, Patwari, who brought on record 'Akas Shajara Kishtawar' and certain mutations. He also stated: "The acquired Khasra No.5277/4905 which is located on the main road i.e. G.T. Road". This witness also stated "that Mahal Hazar Khani is spread out in a huge area". P.W.2 is Niaz Dil Khan who had some time remained the Land Acquisition Collector of P.D.D.E., Peshawar. He had submitted a report during his tenure in his office and brought on record a copy of that report as Exh.P.W.2/1 according to which, the price of the land was worked out at the rate of Rs.30 per sq.
10. Foot. It is to be noted that this report was made basis by the Acquisition Judge for fixing the market value in this case. P.W.4 is Shamroz Khan, Patwari Halqa, Tukra No. 1. He deposed "the suit land acquired for the bus stand is at a distance of one furlong from Sikandar Town". P.W.5 Syed Anwar Shah Bokhari is Record-- keeper, Municipal Corporation, Peshawar. This witness produced the sale certificates in respect of Plots Nos.3, 4, 5 and 20 situated in Khushal Colony and Sikandar Town as Exh.P.W.5/1 to Exh.P.W.5/3. Sufi Abdur Rashid is P.W.6 who stated that the suit land is situated on G.T.
11. Road and this area is very populous. Pakistan Flour Mills, G.T.S. Workshop, and Sethi Town are close to it. Some 5/6 years back he had contacted Ghulam Siddique as he wanted to purchase a portion of the acquired land and the price demanded -by Ghulam Siddique at that time was Rs.120 per sq.
12. Foot and he had offered Rs.100 per sq. Foot as a purchase price. P.W.7 Muhammad Ashraf is property dealer who almost confirmed the statement of P.W.6 about the price. He further clarified that the acquired land is situated on the road and Flour Mills, Azim Cold Storage and bulbs factory are situated hereby, out of which some have been constructed 5/6 years back while some 10/12 years back. He also stated that tote rate in Sikandar Town is 8.100 to Rs.125 per bq. Foot. Ghulam Siddique petitioner appeared as his own witness who brought Sale Mutations Exh.P.W.9/2 to Exh.P.W.9/17. He also stated that Tukra No.1 is close to Village Hazar Khani and that Sikandar Town, office of Municipal Corporation, Khushal Colony and Nishtar Abad are situated in Tukra No.1. In cross-- examination, he deposed.
13. Against this evidence, the respondents produced no evidence in rebuttal. It is thus manifest that the documentary evidence in the case is contained in the sale certificate Exh. P.W.5/1 to Exh.P.W.5/4 and the sale mutation Exh.P.W.9/2 to Exh.P.W.9/17. According to P.W.5 who produced the sAle certificate "The Plots Nos.3, 4 and 5 situated in Khusal Colony were auctioned in the year 1974. Plot No. 20 in Sikandar Town was sold in 1977". The total area of these four plots comes to 16748 sq. Ft.
14. While the total sale price is Rs.10,31,279. The average calculated per foot is Rs.61.9. However, if we calculate the average per foot of Plots Nos. 3, 4, 5 which were sold in 1974, then the price per foot would come to Rs.56. The number of mutations exhibited on record from Exh.P.W.9/2 to Exh. P.W.9/17 comes to 11 and according to the calculation; the average price per foot comes to 37.75. It is, however, to be explained that some of the mutations like No. 1887 was attested on 6-2-1970 (Exh.P.W.9/14) and No.6236 was sanctioned on 16-12-1972 (Exh.P.W.9/17). One mutation Exh.P.W.9/6 No. 5671 was attested on 25-10-1975. Out of the other mutations, some are of the year 1977 while three of them pertain to the year 1978.
15. Notification under section 4 of the Act in this case was issued on 15-3-1977, therefore, the sale certificates of the auction, which took place in 1974 and the mutations, which were attested in 1970, 1972 and 1975 are of a date much prior to this notification. In any case, to adopt a more safe and guarded method for assessing the market value, the price is to be worked out from the joint prices given in the sale certificates and sale mutations and on this calculation the average per foot comes to Rs.49.76. It is in the evidence of the objectors that the area sold through the sale certificates is in the proximity of the acquired land and that the acquired land is in the Municipal Corporation and is surrounded by Flour Mills, built up area etc. Although the period to be considered for determining the market value would be the dare of notification under section 4 of the Act but it is not a rule of universal application and some period thereafter can also be considered on account of the upward trend of prices. In PLD 1992 FSC 398, it has been laid down that:-- "Basic and fundamental date for fixation of compensation for the land acquired in the public interest was the market value on the date of actual acquisition on land---Date of the issue of notification under section 4, was not crucial date but it was the date of actual acquisition which followed the step taken in the matter of acquisition after disposal of objections under section 6, which was required to be substituted in S.23 (1) of the Land Acquisition Act, 1894."
16. In a case reported in 1985 SCMR 767, the price per Kanal was enhanced from Rs.23,000 to Rs.25,000 on account of upward trend in the prices as award had been made two years later from the notification under section 4 of the Act. The gap between the notification and award in this case is more than one year. The rule laid down in PLD 1988 SC 32 is to the effect: "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). It is for this reason that the 'potential value' of the land i.e. The use to which it can put in future, has in a large number of cases been held to be a relevant factor."
17. Similarly, the rule enunciated in PLD 1986 SC 158 is an under:-- "There are factors which have to be taken into consideration (while determining the value of the land to be acquired) e.g. The land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, but also by a reference to the uses to which it is reasonably capable of being put in future; and the market value is the potential value of the property, at the time of acquisition which would be paid by a willing buyer to a willing seller; when both are actuated by business principles prevalent in the locality at that time.
18. This salutary principle is often ignored by the functionaries of the Government while assessing the amount of compensation to be awarded to the persons whose land is compulsorily acquired. The principle that the use to which the land is capable of being put, to the advantage of the owner, is a factor, which ought to be considered by the assessing authority, has been enunciated in a number of cases.
19. While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, on 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 a 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. In appropriate cases there should be no compunction even on relying upon the oral testimony with respect to the market value of the property intended to be acquired, because even while deciding cases involving questions of life and death, the Courts rely on oral testimony alone and do not insist on the production 9f documentary evidence."
20. The perusal of the judgment of the trial Court would reveal that it has not taken into consideration the location of the acquired land, its potentialities and the use to which it can be put in near future.
21. The evidence on record and particularly the statement of the objector clearly proves that the disputed land was situated in Municipal Corporation Area and was surrounded by various commercial units and built up area. As has been earlier stated, the evidence of the petitioner goes un-rebutted as no evidence has been led by the Collector in support of their stand. It is a matter of common knowledge and everyday observation that residential building, commercial building and industrial units spring up all along very quickly and in this case as the property in question at the time of acquisition was situated in the Municipal Corporation Area and according to 'Aks Shajra Kishtwar' (Exh.P.W.I/9), the original Khasra No.4905 lay on the road-side, therefore, it could also be used for industrial and commercial purposes. The trial Court has, therefore, erred in not taking into consideration all the evidence, referred to above, the potential value and has only relied on a report, which alone could not be made basis of the assessment. The steep rise in the prices and the devaluation of currency is also a factor, which ought to have been taken into consideration by the learned referee Judge. The rule laid down in PLD 1970 Quetta 35 is: "Where the acquisition of land has to be made under the Land Acquisition Act, 1894, the compensation is to be assessed in accordance with the principles laid down under section 23 of this Act. It is well settled that under this section the owner is entitled to charge the price of his land fixed with reference to the probable use which will give him the best return and not merely in accordance with its present use and disposition. The compensation must be determined by reference to the price, which a willing vendor might reasonably expect to obtain from a willing purchaser. The land is not to be valued merely in accordance with the use to which it is being put, but also by reference to the uses to which it was reasonably capable of being put in the future .................
22. Its value has to be assessed as a, building site with all, its potentialities for its development in the future."
23. We accept this appeal for the reasons stated above and enhance the price of the land from Rs.30 per sq. Foot to Rs.49.76 per sq. Foot. We direct that simple interest at the rate of Rs.6 % per annum and compulsory acquisition charges should be paid to the appellants on the enhanced amount.
24. There would be no order as to costs. The connected R.F.A. No.56 of 1987 automatically fails and is dismissed with no order as to costs.