' MUHAMMAD YUNUS SURAKHVI, J.---The above-captioned two appeals, by way of leave of the Court, arise out of the single judgment of the High Court passed on 18-5-1998, we therefore, propose to dispose of them by a consolidate judgment.
2. The brief facts of the case are that land measuring 29 Kanals, 13 Marlas along with house and two 'Jandars', situate in village Hallan Janoobi, Tehsil Haveli, was acquired by the Government for Federation of Pakistan for construction of a workshop under the provisions of Land Acquisition Act.
The Collector assessed the price of the land at the rate of Rs, 17,800 per Kanal. The value of the house was assessed as Rs,40,484, the 'Jandar' was assessed at the rate of Rs,6,968 and those of trees was assessed as Rs,86,610. The total amount of award was Rs,4,51,033.28. Aggrieved by the award Bahadar Ali and others, the landowners filed a. Reference before the District Judge who enhanced the price of land to the tune of Rs,27,000 per Kanal including 15% compulsory acquisition charges totally amounting to Rs, 31,050 -per Kanal, and the compensation for house was enhanced to Rs,80,000. Similarly the price of two 'Jandars' was also enhanced. Being dissatisfied with the order of District Judge both the parties, the landowners and the Federation of Pakistan, went up in appeal before the High Court, but the same were dismissed observing that the market value had been rightly assessed by the District Judge. Hence the above-captioned two appeals one filed by the Government of Pakistan for setting aside the judgment of the High Court and the other by the landowners for further enhancement of the price of land to the tune of Rs,50,000 per Kanal and Rs,1,00,000 for the house alongwith 15% compulsory acquisition charges and interest on the amount from the date of award till payment according to the provisions of the Land Acquisition Act.
3. A preliminary objection was raised by Syed Nazir Hussain Shah Kazmi, the learned counsel for Government of Pakistan, that instead of filing petitions for leave to appeal direct appeals under section 54 of the Land Acquisition Act should have been filed. Mr. Ashfaque Hussain Kiani, the learned counsel appearing on behalf of Muhammad Shafi and others, has conceded that a direct appeal under section 54 of the Land Acquisition Act instead of filing the petition for leave to appeal was an appropriate remedy. However, he has submitted that the petitions for leave to appeal may be treated as appeals and disposed of as such He has further contended that there is no limitation provided under the Supreme Court Rules for such an appeal as such there is no hindrance to allow his prayer. The learned counsel has further argued that in the impugned judgment it was admitted by the High Court that the awarded land is on the road side, and has very potential value for commercial purposes but on the other hand failed to further enhance the price of the land as well as of the house. The learned counsel contended that the High Court observed in the impugned judgment that in Azad Jammu and Kashmir the prices of the land are very high, however, the registration of sale-deeds is rare, despite this fact the High Court failed to give any consideration to the oral evidence produced by the appellants. The learned counsel pointed out that the District Judge as well as the High Court did not award the 15% compulsory compensation on the price of house and two 'Jandars' which is mandatory under section 23(2) of the Land Acquisition Act. The learned counsel also submitted that the High Court failed to award interest on the compensation amount, from the date of ward till payment under the provisions of the Land Acquisition Act.
4. On the other hand Syed Nazir Hussain Shah Kazmi, the learned counsel for respondents Government of Pakistan and others, has argued that the petitions for leave to appeal could not be treated as appeals particularly when the prayer was made orally at a belated stage and no application was moved in this regard. He has argued that ignorance of law is no excuse and therefore the appeals should have been dismissed as being incompetent. The learned counsel has maintained that the High Court and the District Judge failed to consider that the appellants had not produced oral and documentary evidence for enhancement of compensation of land, 'Jandar' and house. According to the learned counsel the sale-deeds Exhs. P.A, P.C., P.D. And P.E. Were not relevant. The notification under section 4 of the Land Acquisition Act was issued on 15-10-1985 while the sale-deeds Annexures P.A. And P.E. Were not relevant. The notification under section 4 of the Land Acquisition Act was issued on 15-10-1985 while the sale-deeds Anenxures P.A., P.C., P.D. And P.E.
Were registered on 12-7-1988, 26-10-1989, 29-3-1989 and 29-9-1989 respectively, as such these sale-deeds pertain to the period which took place three to five years after notification and these sale-deeds could not have been taken into consideration for enhancement of the compensation amount.
5. We have given our due consideration to the arguments advanced at the bar and perused the relevant record. The first question which needs resolution is as to whether the petitions for leave to appeal in the instant case could be treated as appeals under section 54 of the Land Acquisition Act despite the fact that instead of appeals, the petitions for leave to appeal were filed in this Court. It may be stated that in view of the fact that there has been a common practice to file petitions for leave to appeal instead of direct appeals under section. 54 of the Land Acquisition Act and the fact that this Court has also been allowing such petitions for leave to appeal may be treated as appeals under section 54 of the Land Acquisition Act, particularly so when there is no limitation period fixed for such appea1 either in the Supreme Court Rules or in the Land Acquisition Act. A reference may be made to a case reported as Water and Power Development Authority v..
Sadullah Khan and others 1999 SCM R 319, wherein the petitions for leave to appeal were treated as appeals under section 54 of the Land Acquisition Act, despite were treated as appeals under section 54 of the Land Acquisition Act, despite the fact that the petitioners did not move an application in that regard but merely made an oral request during the course of arguments at a belated state. The petitions for leave to appeal were converted into appeals despite the fact that the petitioners had been all along insisting that the petitions for leave to appeal were competent, irrespective of the provisions contained in section 54 of the Land Acquisition Act. Therefore, we treat these petitions for leave to appeal as appeals under section 54 of the Land Acquisition Act read with section 42(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
6. Coming to the merits of the case the landowners in support of their claim produced Rashid Ahmed son of Munshi Fateh Muhammad and Nazir Muhammad son of Fazal bin, as their witnesses and also produced the sale-deeds Exhs.P.A., P.O P.B., P.C. And P.D. The attorney of the landowners also appeared as a witness. The District Judge has observed that sale-deeds Exhs. P.A., P.E. P.D. And P.C. Pertain to land which is adjacent to the land acquired by the Government. According to these sale-deeds the average price comes to Rs,1,50,000 to Rs,2,00,000 but the land purchased through sale-deeds is in Marlas which is for commercial purposes. However, the learned District Judge has held that he land acquired is on the road side and situated at an important place which can be used for a potential purpose. On behalf of Government no satisfactory evidence has been produced in rebuttal. However, these sale-deeds were executed long after the issuance of notification under sections 4 and 11 of the Land Acquisition Act. The High Court while discussing the sale-deeds observed that the notification for the acquisition of land was issued on 15-10-1985 and obviously sale-deeds Exhs.P.A., P.B., P.C. And P.D. Pertain to the sales which took place three to five years after the notification and those, as such, cannot be taken into consideration. In the opinion of the High Court the sale-deed which was registered on 20-9-1986 Exh. P.E. Can at the most be considered. Through this sale-deed one Marla and six Sarsahis of land has been sold for consideration of Rs,10,000: This being a small portion of land cannot be made basis for determining the market value of the land. However, the High Court ultimately observed that as pointed out by the District Judge that the land was on the road side and has very potential value for commercial purposes under these circumstances the request of Government of Pakistan for reduction of amount of compensation awarded by the District Judge cannot be considered. The High Court also observed that there is a scarcity of land in Azad Kashmir, the owners are not prepared to part with the land. In very small towns or the localities near the towns, the price of land is very high however the registration of sale-deeds is very rare, therefore, the real market price can hardly be proved. In the locality, like Hallan Janoobi, the award of Rs, 27,000 per Kanal is reasonable and not excessive.
7. It may also be highlighted that the District Judge while enhancing the amount of compensation at the rate of Rs, 27,000 per Kanal and that of house as Rs, 80,000 was persuaded by the production of a sale-deed on behalf of landowners which pertained only to a small piece of land, which has said earlier, can never be a guide or deciding factor in determining the compensation amount.
There are numerous cases from Pakistan jurisdiction as well as from this Court that the above factor can never be a guide for enhancement of compensation amount. However, the observation made by the District Judge as well as by the High Court that the acquired land is situated at the road side and the same can be put to commercial use is not an irrelevant consideration for determining the compensation amount.
8. In a case titled Faiz Akbar Khan v. Azad Government of the State of Jammu and Kashmir Civil Appeal No, 1 of 1996, decided on 8-1-1996, this Court observed that as the land was situated in the town and was capable of being put to, commercial use, the sale-deeds which pertained to small acreage of land cannot be ruled out of consideration while assessing the compensation amount. It was observed by this Court that while dealing with the compensation amount, it should be seen as to whether the land acquired has potentials or for the site for residential or commercial purposes and if it is found so, the sale-deeds of smaller pieces of the land would also furnish good guide for ascertaining the market value of the land acquired.
9. In another case reported as Fazalur Rehman v. General Manager, S.I.D.B. PLD 1980 SC 158 it was opined as under:--- "There are other factors which have to be taken into consideration e.g. The land is not to be valued merely be reference to the use to which it is being put at the time at which its value has to be determined, but also the reference to the uses to which it is reasonable capable of being put in future; and market value is the potential value of the property at the time of acquisition which could be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time."
' It was further observed as under:--- "I may add that 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. For instance in Cedar Rapids Manufacturing and Power Co. v.
Lacoste (1914) AC 569, it was held that although any advantage which accrues due to the carrying out of any scheme for which the property is acquired, may be excluded, but while assessing the value of the acquired land, the probably use to which the owner might have put the land, must be taken into consideration. This includes all the advantages which the land possesses, present or future, in the hands of the owner and he is entitled to have the price assessed in reference to these advantages."
10. It was observed in a case reported as Water and Power Development Authority, Lahore v.
Qamar-ud-Din 1992 CLC 258 that although the land acquired was used at the relevant time for agriculture purposes, yet it had the potential for being a site for residential or a commercial purpose. It was also observed that as there was a degree college and a work shop these factors would be considered while fixing the market value of the land acquired.
11. It is evident from the case-law cited at the Bar that the Supreme Court of Pakistan and this Court have taken the view that if the geographical position of the land acquired is such that it has the potential for being put to the use for business or the same can be used for the construction of the residential accommodation, the market value of the land can be based even on the sale-deeds which pertain to smaller portion of the land.
12. For the afore stated reasons, as the land acquired is situated on the road side and it has been opined by the District Judge as well as the High Court that it has a potential value therefore in our view the District Judge and the High Court committed no error in enhancing the amount of compensation of land to Rs, 27,000 per Kanal plus 15% compulsory acquisition charges and similarly enhanced the amount of house to Rs, 80,000. It may be pointed out that the landowners were, however, not given the compulsory acquisition charges on the value of the house. Therefore, it would be in the interest of justice to modify the judgments and decrees of the District Judge and the High Court to the extent that the landowners shall also be entitled to 15% compulsory acquisition charges on the price of the house: Thus, the appeal filed by the Government of Pakistan for reduction of the compensation amount is dismissed and the other filed by the owners to the extent Mentioned above is partly accepted. However, the appeal filed by the landowners for further enhancement of compensation amount stands dismissed. In the circumstances of the case, we pass no order as to costs.