' HAMID ALI MIRZA, J.---By this common judgment we intend to dispose of the above appeals which are directed against the judgment dated 13-11-1995 passed by Division Bench of the Peshawar High Court, Bench Abbottabad, in R.F.A. No,10 of 1994 (Muhammad Saeed and others v. Collector Acquisition Land, Mansehra and others) whereby the said appeal was allowed, the judgment/decree of the Referee Judge was set aside and the award of the Collector was modified.
Civil Appeal No,811 of 1996 has been filed by the land owners while Civil Appeal No,1745 of 1996 has been filed by Collector, Land Acquisition, Mansehra and another.
2. The facts briefly stated are that land measuring 153 Kanals and 3 Mamas situated in revenue estate of Ganda, Tehsil Mansehra was acquired for the construction of District Jail, Maneshra at the rate of Rs,15,000 per Kanal alongwith 15% compulsory acquisition charges and a Notification under section 4 of the Land Acquisition Act was issued by the Collector on 12-10-1985 and thereafter award was announced by him on 2-11-1986. The land owners, appellants in Civil Appeal No,811 of 1996 filed petition under section 18 of the Land Acquisition Act for enhancement of amount of compensation in respect of land so acquired at the rate of Rs,70,000 per Kanal alongwith other benefits before the Additional District Judge/Land Acquisition Judge, Mansehra who as per his judgment dated 27-3-1994 dismissed the petition holding that the compensation of the land was properly and correctly assessed by the Collector: The land owners thereafter preferred R.F.A. No,10 of 1994 before the Peshawar High Court, Bench Abbottabad, which appeal was allowed and was disposed of as per impugned judgment and decree enhancing amount compensation to Rs,40,000 per 'Kanal besides other benefits admissible under the law. The land owners and the Collector Land Acquisition have preferred these appeals against the impugned judgment.
3. We have heard the learned counsel for the parties and perused the record. The only contention of the learned counsel for the land owners/appellants in C.A. 811/1996 is that the Land Acquisition Collector, the Referee Judge and the learned Division Bench of the High Court have not considered the oral and documentary evidence on record in correct prospective and thus have arrived at wrong conclusion with regard to amount of compensation of land so acquired considering that the land being situated near Mansehra consequently being valuable and of high worth, its rate should not have been less than Rs,70,000 per Kanal in view of its location and potentiality. The learned counsel for the respondents/appellants/Collector Land Acquisition, Mansehra in Civil Appeal No,1745 of 1996 submitted that the learned Division Bench of the High Court has erred in enhancing the rate of compensation of land acquired considering that the property acquired being situated in a village where an average price worked out on the basis of revenue record could not have been brushed aside.
4. From the evidence/material on record we find that the land was acquired for the purpose of construction of Jail. P.W. Muhammad Aslam, Patwari Halqa Mansehra No,II has produced Exh. P.W.
1/2, a schedule of one year average from 12-10-1984 to 12-10-1985 of Chak Chakriali, which showed that the market price of the land would come to Rs,26,132 per Kanal and as per Exh. P.W. 1/3 with regard to Mutation No, 988 attested on 26-3-1985 one Kanal of the land of Maira kind was sold for the consideration of Rs,40,000. The said P.W. Muhammad Aslam, Patwari deposed that Chak Chakriali and village Ganda are contiguous to each other so also village Dhangri is also contiguous to village Ganda from where the land in dispute was acquired. His testimony could not be shaken in the cross-examination by the adverse party. P.W. Muhammad Riaz, Patwari Halaq Mansehra No,1 in his deposition has deposed that as per one year average the land outside the limit of Municipal Committee, Manshera during the period from 12-10-1984 to 12-10-1985, its market value would come to Rs,50,421.40 per Kanal for the Maira kind of land. He also deposed that village Ganda and Manshera are conteiguous to each other. He has produced such one average Exh. P.W.2/l which pertained to period from 9-1-1985 to 15-8-1985. Mr. Shah Muhammad, Advocate was appointed as Local Commissioner by the Referee Court to assess the market value of the land in question who, visited the spot in presence of parties and submitted his report dated 28-6-1992 wherein he opined that the market value of the said land would be Rs,40,000 per Kanal which assessment is based on unrebutted evidence of P.Ws. Muhammad Saeed, (ii) Mir Afzal, (iii) Shafique and (iv) Javed. P.W.3 Muhammad Sadiq in his testimony has deposed that in the year 1985 market value of the land in question was Rs,80,000.00 and the present market value would be between Rs,1,00,000.00 to 1,50,000.00 and further he deposed that the land in question was opposite to Small Industries and Elementary College. P.W. 4 Muhammad Saeed in his testimony has deposed that market value of land would be between Rs,80,000.00 to 85,000.00 per Kanal. P.W. 5 Noorullah Khan produced Asle- Masavi of village Ganda in respect of property under reference as Exh.P.W. 5/1 and deposed that village Ganda was contiguous to village Mansehra and further that the property under reference was situated on the main road leading to Jallou Shehelia from Maneshra. He also deposed that village Shehelia is contigousou to Mansehra Town. He also deposed that property as shown in Exh P.W. 5/6 has been acquired for Small Industrial Estate which property is situated on the right side of said Jallou and Shehelia Road while industrial property is situated on the left side of said estate road. Testimony of all the above P.Ws. Could not be discredited in the cross-examination by the learned counsel of the adverse party consequently their testimony with regard to stated market/average rate of the land in question and it being contiguous to the stated villages and road, so also the location of the land in question was not challenged.
5. It is settled law that while determining amount of compensation, Court is to consider evidence brought on the record by the parties and further Land Acquisition Collector while determining compensation of acquired land has also to consider the potentiality and further prospective of land in addition to one year average. Reference may be made to (i) Land Acquisition Collector/Deputy Commissioner, Abbottabad and others v. Sardar Muhammad Safdar Khan and others (1998 SCM R 2142), (ii) Collector, Land Acquisition, Mardan and others v. Nawabzada M. Ayub Khan and others (2000 SCM R 1322), (iii) Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCM R 2164), (iv) Deputy Commissioner/Land Acquisition Collector and others v. Sardar Muhammad Shafqat and others (PLD 2001 SC 405), (v) Land Acquisition Collector and others v. Dina and others (1999 SCM R 1615) and (vi) Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another (1999 SCM R 1647). The learned Division Bench of the High. Court in paras. 5 to 7 of the impugned judgment has observed:- "5 It has been stated in para. No,3 of the award: 'The land which is being acquired is of Maira type.
One year average cost of the land comes to Rs,11,171/20 per Kanal. The land being situated near the.
Mansehra is very much valuable. The market value of the land is also very much high than the one year average'. In spite of it the Collector had assessed the market value of the land as. Rs,15,000 per Kanal. He has not taken into consideration the location and potentiality of the land."
"6 The price of land has jumped high in the near past. Criterion of one yearly average price in appropriate cases, was not of any help in determining market value of acquired land. No bar existed for resorting to appointment of Local Commissioner for inspection of spot to evaluate land on consideration of potentialities of land. For determining market value of land, classification or nature of land, could be taken as relevant consideration but that was not the whole truth as area could be 'Banjar' but its market value could be tremendously high because of its location, neighbourhood, potentiality and other benefits."
"7 In this view of the matter we are inclined to hold that the amount of compensation awarded to the appellants by the Land Acquisition Collector was not adequate. Keeping in view, the location, neighbourhood and potentiality of the land and taking into consideration the schedule of averages Exh.P.W. 1/2 and Exh.P.W.2/1 besides Sale Mutation No,988 attested on 26-3-1985 alongwith report of the Commission and fix price of land as Rs,40,000 per Kanal besides other benefits admissible under the law.
6. The respondents/appellants/Collector Land Acquisition have not brought any reliable and satisfactory evidence on record to controvert/rebut the evidence produced by the land owners with regard to the potentiality and further prospective of the land so acquired. The land under reference is also adjacent to the Mansehra Town and near to industrial 'estate. It is also situated on the main road leading to Jallou Shehelia from Mansehra. It has higher potentiality and future prospective value. One year average and market rate as per evidence on record, the compensation awarded by the Collector Land Acquisition and affirmed by Referee Judge is inadequate. In the circumstances considering various factors including location of acquired land, sale price of adjoining land, its potentiality and likelihood of development and improvement, the report of the Local Commissioner, the evidence on record produced by the land owners not having been controverted satisfactorily, general tendency of the vendees to show smaller amount as to price of land purchased by them than the actual price paid by him in order to avoid imposition of heavy gain tax and the stamp duty and etc. So also the inflationary trends and depreciation in currency in between date of acquisition and the date of award, the learned Division Bench was justified in awarding compensation at the rate of Rs,40,000 per Kanal which would be adequate in the circumstances of the instant case hence required no further enhancement or reduction in the rate of compensation per Kanal. The contentions of the learned counsel for the appellants/Collector Land Acquisition that the Division Bench has erred in enhancing market value of the acquired property (ii) misread the evidence and (iii) has not considered the revenue record have no merit and substance.
7. We are of the view that the learned Division Bench has given valid and cogent reasons in awarding the rate of compensation at enhanced rate of Rs,40,000 per Kanal with other benefits permissible under the law hence no interference is required by this Court. The appeals have no merit consequently same are dismissed maintaining the judgment and decree of the learned Division Bench of Peshawar High Court, Abbottabad Bench.