' SARDAR MUHAMMAD RAZA, J.---The Provincial Government, through Award No,65 announced on 13-10-1986, acquired land measuring 73 Kanals 14 Marlas comprising Khasras Nos.3937/2090 and 5931/2090 to 5936/2090 in Mauza Mansehra for the construction of various public offices as well as circuit house. In the revenue record the property was classified as 'Dhaka Darakhatan'. The Collector fixed a sum of Rs,21,253.60 as the amount of compensation per Kanal.
2. All the owners filed three different objection petitions under section 18 of the Land Acquisition Act which were referred to the Court. The objection petition of Mst. Safia Bibi happened to be heard by Mr. Muhammad Jamil Khan, Additional District Judge, Mansehra who by his order dated 22-3-1994 dismissed the objection petition and declined enhancement while, the objection petition of Mst.
Jamshed Bibi etc. And Jalal Khan etc. Happened to be heard by Mr. Muhammad Arshad Khan, learned Additional District Judge, Mansehra, who vide his judgment dated 9-10-1995 enhanced the compensation to the tune of Rs,31,253.60 per Kanal.
3. Government has filed the instant appeal (R.F.A. No,27) challenging such enhancement while Jalal Khan etc. And Mst. Safia Begum etc. Have also filed appeals (R.F.A. No,28 & R.F.A. No,36) seeking enhancement of compensation. Mst. Jamshed Bibi etc. The objectors were impleaded by this Court as party to R.F.A. No,36 of 1994. All the appeals shall be decided through this single order.
4. Before entering into the factual aspect of the present case, we may say at the very outset that a close examination of section 23 of the Land Acquisition Act, 1894 and the very scheme of the land acquisition would indicate that the amount to be paid to the owner is not the price but the compensation. Word compensation certainly has a different connotation as compared to the word price. The former is always higher than the latter because numerous factors are brought into consideration while forcing a man to part with his property than making payment to a willing seller.
Our discussion hereinafter would indicate that the Courts below have not properly attended to this aspect of the case.
5. The second important feature of acquisition is that the objections are entertained by the Collector under section 18 of the Land Acquisition Act and the same are forwarded as reference to the Civil Court. It is never a civil suit where the parties are subjected to the impact of technicalities of civil law and even harmed at times. It is a matter of reference and the Civil Court despite being a Court has to act like an arbitrator and is supposed to fix perfectly fair compensation, almost ignoring the slight laxities of the parties. We feel that the two Courts below especially Mr. Muhammad Jamil Khan has failed to appreciate the matter in such background.
6. The law on the subject is so liberal that in Ch. Kehar Singh v. Union of India AIR 1963 Punjab 497, a co-sharer having not applied for enhancement of compensation was held entitled to share of enhancement granted to the other co-owner applying under section 18 of the Act.
7. Coming to the matter of enhancement, as such, the learned counsel for the appellants relied upon "Din Muhammad v. General Manager Communications" PLD 1978 Lahore 1135 where the value of property sold in the adjacent street was considered to be a good market value of the property in dispute. The learned Single Judge of Lahore High Court has laid down a criterion that quantum of fair compensation is the price that a buyer would pay to a seller if they voluntarily entered into a transaction. We fad ourselves in respectful disagreement with this latter part of finding because the theory of willing seller and a willing purchaser strictly relates to the theory of supply and demand, the inter action whereof determines the price. We have already held that the compensation is not only different from price but is always higher therefrom. The owner, in view of acquisition, is compensated and not merely paid the market price. We are of the view that the theory of willing seller and a willing purchaser determines the price and not the compensation.
8. In Province of Punjab v. Maulvi Muhammad Faizan PLD 1980 Lahore 632 the property was located in the vicinity of built up area of the city. The buildings already stood constructed near and around whole of land under acquisition. Part of the property fell within the limits of Municipal Committee but because of the aforesaid qualities, the portion not falling within the limits of Municipal Corporation was also allowed the same compensation.
9. The building site potentiality and various sales having taken place in the vicinity for building purposes was considered another favourable aspect for the affectees by the Supreme Court in Land Acquisition Collector v. Abdul Qayum Malik 1980 SCM R 63.
10. In the instant case the revenue record reveals the classification of land as ' Dhaka Daralchtan but mere classification in revenue record is never considered conclusive. Regardless of the classification, the value of a land is determined practically by the use which the land is capable of being put to. Similar was the case Sadiq Niaz Rizvi v. Collector Lasbela PLD 1993 SC 80 where such matters were given close consideration regardless of classification. In that case the property was located near the Highway.
11. At times, the acquiring agencies i,e, Collector etc. Issue a notification under section 4 and thereafter the award is announced with considerable lapse of time during which there occurs some upward trend in prices. This situation was also considered by the Supreme Court in "Collector, Abbottabad Land Acquisition v. Haji Ali Asghar Khan" 1985 SCM R 767. In that case there was a lapse of about two years but in Mansehra city the upward trend in prices is not in terms of years but is in terms of months. We would be attending to this aspect later on.
13. Our own High Court in "Land Acquisition Collector v. Rokhan PLD 1995 Peshawar 78 had very amicably "gone to the extent of observing that even one year's average in certain cases is not a proper yardstick to determine the real value of the land. Even Barani and Banjar lands could be equal in value to irrigated lands provided the location of the former class is attractive and ideal. In such circumstances the appointment of Local Commissioner to determine potentialities of land was considered advisable.
14. We have brought down our discussion to the appointment of the Local Commissioner because it is relevant in the present case as well and because in a latest judgment of our own High Court in Sultan Eraj Zaman v. Land Acquisition Collector, Khanpur 1996 CLC 287, this Court has held that a report of Local Commissioner cannot be brushed aside.
15. We are to observe with concern that in the instant case a Local Commissioner was appointed who had gone to the location and had given his detailed report on 21-5-1995. His report was accepted by both the parties and no objection at all had been raised on either side. The Courts had brushed aside the report of the Local Commissioner according to which the price per Kanal at the time of the award was fixed as Rs,1,30,000 per Kanal. It was also pointed out by the Local Commissioner that at the time of his report the value of the land in dispute was up to Rs,6 Lakhs per Kanal, and it was bound to be further enhanced in due course.
16. With this background in view, we would revert to the land acquired. It is a land situated on the Highway leading to Kashmir and Kaghan. It is within the limits of Municipal Committee, Mansehra.
Its potentiality was such that a modern hotel is being constructed to the north of the land.
Residential houses of the people are located close to the suit land. Important offices of C & W Department and official bungalows are just across the road. Famous rest house holding a panoramic view and the Sessions House are also across the road. The offices of WAPDA and WAPDA residential colony is to the west of the acquired land. Residential bungalows are to the south and close by is a colony known as Kashmir Colony. We are surprised to observe that such an excellent location of the property is altogether ignored and brushed aside by the learned Courts of reference.
17. In the circumstances we are constrained to set aside the impugned judgments and fix the market value of the suit land at Rs,1,00,000 (one lakh) per Kanal which was demanded so by the objectors along with 15% compulsory acquisition charges and 6% simple interest from the date of taking over possession till the time of payment. It may be recalled that the Local Commissioner had fixed the amount at a rate higher than that demanded by the objectors themselves.
18. The appeal of Government etc. (No,27/95) is hereby dismissed while Appeals Nos.28/94 and 36/94 are accepted.