TALAT QAYUM QURESHI, J.----On the directions of Provincial Urban Development Board, land measuring 37 Kanals, 5 Marlas comprising Khasra No.4695/2/2/2/3/1, situated at Ghazi Kot, Tehsil and District Mansehra was acquired for extension of Ghazi Kot Township for creation of parks, recreational facilities and commercial purposes, vide Ward No.3057-64/ LAC/ PUDB, dated 5-7- 1992. Preliminary notification under section 50 of the Provincial Urban Planning Ordinance, 1978 was issued vide No.2052-60/LAC, PUDB, dated 11-5-1992. The Land Acquisition Collector fixed compensation as follows:--- Rakkar . . . @ Rs.75,300 P. K.
Banjar Qadeem. . . @ Rs.18,225 P. K.
Dhaka Rakh . . . @ Rs.18,225 P.K.
Compulsory acquisition charges at the rate of 15 % were also granted. Being not satisfied with the rate of compensation, petitioners filed appeal in the Court of learned Additional Commissioner, Hazara Division, Abbottabad against award, dated 5-7-1992. The learned Additional Commissioner after providing opportunity to the parties to adduce evidence to substantiate their respective claim, accepted the appeal and enhanced the compensation to the tune of Rs.3,000 per Kanal. The landowners were not satisfied with the said enhancement, therefore, they have filed writ petition in hand (75/95) against the compensation fixed by Collector as well as learned Additional Commissioner, Hazara. The Collector Land Acquisition has also filed writ petition No. 111 of 1995 against the judgment and decree passed by the learned Additional Commissioner, dated 4-5- 1995. Since both the writ petitions arise out of the same order, therefore, we propose to dispose of the same through single judgment.
2. Mr. Ejaz Afazal Khan, Advocate, the learned counsel representing the land owners/petitioners argued that the Additional Commissioner has neither appreciated the record of the case nor the evidence produced by the petitioners nor the documents placed on file were properly appreciated.
3. It was further argued that the Collector as well as the learned Additional Commissioner while fixing the compensation altogether ignored the criteria laid down by law and by the superior Courts. It was further argued that the acquired land is situated in a compact block and has tremendous commercial value because on the one side is Ghazi Kot Township and across the road there is a hotel and commercial shops and is situated at Karakuram Highway though the Commissioner has admitted in his judgment that the property has commercial status and has most commanding view of the site but still the petitioners were deprived of the proper compensation.
4. On the other hand, Mr. Muhammad Haseeb Abbasi, the learned counsel representing the respondents argued that as per section 55 of the Provincial Urban Planning Ordinance, 1978 the amount of compensation is to be determined on the basis of two years sale average similarly situated and put to similar use preceding the date of notification under section 50 the learned Additional Commissioner has acted against the provisions of section 55.
5. It was also argued that the learned Additional Commissioner under section 66 of the Ordinance could appoint Local Commissioner for inspection of the property but had no jurisdiction to personally inspect the site or to make investigation on the spot. The enhancement of Rs. 3,000 per Kanal made by the learned Additional Commissioner it was prayed be set aside and the compensation fixed by the Land Acquisition Collector be maintained.
6. We have heard the learned counsel for the parties and perused the record.
7. It is an admitted fact that land measuring 37 Kanals, 5 Marlas was acquired by the Land Acquisition Collector 'for creation of 'parks, recreation facilities and commercial purpose for the extension of Ghazi Kot Township on the directions of Provincial Urban Development Board and preliminary notification under section 50 of the Provincial Urban Planning Ordinance, 1978 was issued on 11-5-1992 whereas award published on 5-7-1992. The Collector Land Acquisition keeping in view the two years average ,for the period commencing from 11-5-1990 to 11-5-1992 fixed Rs.75,300 per K4nal for Rakkar kind of land and Rs.18,825 per Kanal for Banjar Qadeem and Dhaka Rakh. The Collector while fixing the compensation only kept in view the two years' average and did not consider the location, prevailing market value, potential of land and the purpose for which it was put to use. Similarly, the learned Additional Commissioner though admitted that the acquired property is situated on road side, located within the limits of Municipal Committee capable of being used as building site and other commercial like hotel etc. and is having most commanding view of the city has an edge over the other property situated in the area but still only enhanced the rate of compensation by Rs.3,000 per Kanal. The findings of the learn, ed Additional Commissioner are reproduced for convenience:-- "It is no doubt correct that the property acquired is situated on the road side; it is located within the limits of the Municipal Committee; it is capable of being used as a buildings site and other commercial buildings like hotels etc. as, one is already constructed across the property acquired.
There is also no cavil with the proposition that this property is having most commanding view of the city and as such it has an edge over the other properties situated in the area. Keeping in view all these facts and other attending circumstances I am of the firm and considered view that- the market value of the property deserves enhancement to the tune of Rs.3,000 per Kanal plus 15% compulsory acquisition charges plus market value of the standing trees as worked out by the Forest Department and accept the appeal accordingly."
8. The landowners in order to substantiate their claim before the learned Additional Commissioner examined Muhammad Riaz Patwari Halqa, Mansehra as C.W.1 who produced on record one year average for the period commencing from 5-7-1991 to 4-7-1992 Exh.P.W.l/1. Azhar Mehmood, Ranger Officer Forest was examined as P.W.2 who gave his statement regarding the ages of the trees. Haji Muhammad Aslam, Ranger Officer was also examined as P.W.3. He deposed about the compensation regarding the trees in the property in dispute. Muhammad Jawaid, landowner appeared as P.W.4. He produced copies of mutations through which land was sold in Khasra No.4695. The said mutations were placed on record as Exh.P.W.4/1. He also stated that the acquired property was situated at main Karakuram Highway and had the best scenic beauty and was fit for construction of hotels and other commercial buildings. He demanded compensation at the rate of Rs.5,00,000 per Kanal. This witness was not cross-examined with regard to the situation of the property and about its commercial potentiality. The Land Acquisition Collector did not produce any evidence in rebuttal. The learned counsel appearing for the Collector gave a statement that tile department did not want to produce any evidence.
9. The evidence available on record shows that the acquired property is situated in a compact block having one Khasra number. On the one side is the Ghazi Kot Township where bungalows have been constructed and published on 5-7-1992. The Collector Land Acquisition keeping in view the two years average ,for the period commencing from 11-5-1990 to 11-5-1992 fixed Rs.75,300 per K4nal for Rakkar kind of land and Rs.18,825 per Kanal for Banjar Qadeem and Dhaka Rakh. The Collector while fixing the compensation only kept in view the two years' average and did not consider the location, prevailing market value, potential of land and the purpose for which it was put to use. Similarly, the learned Additional Commissioner though admitted that the acquired property is situated on road side, located within the limits of Municipal Committee capable of being used as building site and other commercial like hotel etc. and is having most commanding view of the city has an edge over the other property situated in the area but still only enhanced the rate of compensation by Rs.3,000 per Kanal. The findings of the learn, ed Additional Commissioner are reproduced for convenience:- - "It is no doubt correct that the property acquired is situated on the road side; it is located within the limits of the Municipal Committee; it is capable of being used as a buildings site and other commercial buildings like hotels etc. as, one is already constructed across the property acquired.
There is also no cavil with the proposition that this property is having most commanding view of the city and as such it has an edge over the other properties situated in the area. Keeping in view all these facts and other attending circumstances I am of the firm and considered view that- the market value of the property deserves enhancement to the tune of Rs.3,000 per Kanal plus 15% compulsory acquisition charges plus market value of the standing trees as worked out by the Forest Department and accept the appeal accordingly."
8. The landowners in order to substantiate their claim before the learned Additional Commissioner examined Muhammad Riaz Patwari Halqa, Mansehra as C.W.1 who produced on record one year average for the period commencing from 5-7-1991 to 4-7-1992 Exh.P.W.l/1. Azhar Mehmood, Ranger Officer Forest was examined as P.W.2 who gave his statement regarding the ages of the trees. Haji Muhammad Aslam, Ranger Officer was also examined as P.W.3. He deposed about the compensation regarding the trees in the property in dispute. Muhammad Jawaid, landowner appeared as P.W.4. He produced copies of mutations through which land was sold in Khasra No.4695. The said mutations were placed on record as Exh.P.W.4/1. He also stated that the acquired property was situated at main Karakuram Highway and had the best scenic beauty and was fit for construction of hotels and other commercial buildings. He demanded compensation at the rate of Rs.5,00,000 per Kanal. This witness was not cross-examined with regard to the situation of the property and about its commercial potentiality. The Land Acquisition Collector did not produce any evidence in rebuttal. The learned counsel appearing for the Collector gave a statement that tile department did not want to produce any evidence.
9. The evidence available on record shows that the acquired property is situated in a compact block having one Khasra number. On the one side is the Ghazi Kot Township where bungalows have been constructed and on the front side is Karakuram Highway. Across the Highway a hotel has been constructed and there are other commercial shops also present with the hotel. This fact has been admitted by the learned Additional Commissioner, Hazara Division in his order, dated 4- 5-1995. It is by now a settled lark that while determining the market value the Court should see the location, neighbourhood, potential uses to which the land can be put and other benefits and advantages present or future which the land possesses in the hands of owners, which in the case in hand as mentioned above has not been considered. The disputed property possesses a lot of potential for construction of houses and commercial properties. A lot of housing and commercial construction has been raised in the lands adjacent to the one in dispute within 2/3 years of acquisition of the said land. It is situated on the main Karakuram Highway. A hotel and many shops exist across the road and it has the most commanding view of the city, as such has an edge over the other property situated in the area, therefore, we feel it appropriate that nature and classification of the soil of the land was not relevant, it was the purpose and prospect emerging out of the project for which it was being acquired which should have been considered at the time of fixing of the compensation
10. The argument of the learned counsel for the respondents (Land Acquisition Collector/PUDB) that the learned Additional Commissioner has committed violation of section 66 by inspecting the spot himself has no force at all, section 66 empowers Collector and Commissioner to have powers of Civil Court, section 66 of N.-W.F.P Urban Planning Ordinance, 1978 is reproduced hereunder-- "66. Collector and Commissioner to have powers of Civil Courts, etc---The Collector making any enquiry or conducting any proceedings of the Commissioner exercising power of appeal or review under this Ordinance shall have same powers in respect of the following matters as are vested in a Civil Court, when trying a suit, under the Code of Civil Procedure, 1908 (V of 1908), namely:--- (a)summoning and enforcing attendance of any person and examining him on oath or affirmation; (b)requiring the discovery and production of any document; (c)requisitioning any record from any Court or Office; (d)issuing commissions of examination of witnesses, inspection of property of making any local investigation; (e)appointing guardians ad item or next friends; (f)adding or substituting representatives of deceased parties to proceedings; (g)adding or dropping parties from pending proceedings; (h)dismissal in default of appearance and restoration of cases dismissed for default; (i)consolidating and splitting up cases; and (j)any other matter connected with the holding of any inquiry or hearing of an appeal or review."
Plain reading of section 66 shows that the Commissioner while exercising powers of appeal or review under the Ordinance has the same powers in respect of the matter as are vested in Civil Courts when trying the suit under the Code of Civil Procedure, 1908. When the Commissioner has all those powers which are vested in Civil Courts when trying the suit then Commissioner has committed no illegality or irregularity and has not violated the provisions of section 66 by inspecting the spot himself because under Order 18, Rule 18, C.P.C. the Court has powers to inspect the spot itself. Order 18, Rule, 18, C. P. C. is reproduced hereunder: --- "18,Power of Court to inspect.---The Court may at any stage of a suit inspect any property or thing concerning which any question may arise."
11. The Court can either inspect the spot itself or under section 66(d) issue commission for inspection of property for making any local inspection. Moreover, no bar existed for inspection of spot by the Additional Commissioner to evaluate land for consideration of potentialities of land.
12. Keeping in view the above discussion, we accept Writ Petition No.75 of 1995 and enhance the rate of Banjar Qadeem and Dhaka Rakh kind of land to that of Rs.78,300 per Kanal qua the property of the petitioners for the reasons; firstly, the land is situated in a compact block and in one Khasra number; secondly, the law provides determination of compensation not with reference to classification or nature of land but its market value at relevant time. No doubt the classification or nature of land may be taken as relevant consideration but this is not the whole truth. The Banjar Qadeem or Dhaka Rakh land in this area has a very high market value because of its location, neighbourhood, potentiality and other benefits. Reliance is placed on "Collector Land Acquisition, Peshawar and others v. Rokhan and others" PLD 1995 Peshawar 78, "Pakistan and another v. Rahim Dad and another" 1980 CLC 574 thirdly, the property is situated at main Shahrah-e-Karakuram; fourthly, in its neighbourhood Ghazi Kot Township has developed and huge bungalows have been constructed therein and across, the road there is a hotel and other commercial shops in existence; fifthly, the property is situated within Municipal Committee limits of Mansehra and all immunities of life including electricity, Sui-gas and water etc. are available; sixthly, due to its best location it has most commanding view of city and has an edge over other property situated in the area as admitted by the learned Additional Commissioner in his findings; seventhly, it has a lot of potential value in that the acquired land can be used for construction of commercial buildings, shops, plazas and market besides being used for construction of bungalows and houses etc.; eighthly, it is not the nature and classification of the soil of the land but the prospects emerging out of the project for which it was being acquired. In the case in hand, land has been acquired for creation of parks, recreation facilities and commercial purpose for extension of Ghazi Kot Township. Wisdom has been sought from "N.W.F.P. through Collector, Abbottabad Land Acquisition and others v. Haji Ali Asghar Khan and others 1985 SCMR 767.
13. Due to the abovementioned reasons we dismiss the Writ Petition No.111 of 1995 (Collector, Land Acquisition v Muhammad Javed Khan etc.) with no orders as to costs.