ABUDL HAMEED DOGAR, J.---By this common judgment, we propose to dispose of Civil Appeals Nos.2773, 2774 and 2775 of 2001 arising out of a consolidated judgment dated 22-5-2001 passed by a learned Division Bench of Peshawar High Court, Peshawar, in R.F.As. Nos.42, 43, 44, 49, 50 and 51 of 1995 whereby the same were dismissed. R.F.As. Nos.42, 43 and 44 were filed by the appellants whereas R.F.As. Nos.49, 50 and 51 were filed by the respondents respectively.
2. The facts relevant for the disposal of the instant appeals are that some land in the vicinity of Bagh-e-Aram, Mardan was acquired by the appellant for the extension of the college. In respect of which Awards bearing No,39/4 dated 17-4-1985, 38/4 dated 17-7-1985 and 32/4 dated 124-1984 were passed by the Land Acquisition Collector, Mardan after observing legal formalities and issuing necessary Notifications under sections 4, 17, 6 and 9 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'). Vide Award No,39/4 1 Kanal, 3 Marlas of land was acquired at the rate of Rs,1226.85, vide Award No,38/4, 2 Kanals, 10 Marlas was acquired at the rate of Rs,1,314 per Marla and vide Award No,32/4 111 Kanals, 1 Marla was acquired at the rate of Rs,1,242 per Marla. The respondents/affected landowners, feeling aggrieved, instituted Objection Petitions under section 18 of the Act against the aforesaid Awards before the Land Acquisition Collector, who forwarded the same under section 19 of the Act to the learned District Judge, Martha, for disposal, which was entrusted to the learned Senior Civil Judge, Mardan. It remained sub judice in that Court till it was finally sent to the Referee Judge the learned Additional District Judge, Mardan, on 2-1-1995 for adjudication. The appellant contested the objection petitions and submitted written statement respectively. On pleadings of the parties, issues were framed and evidence was recorded. The learned Referee Judge vide judgment dated 5-4-1995 enhanced the rate of compensation from Rs,1,226.85 per Marla to Rs,3,954 per Marla in Award No,39/4, from Rs,1,314 per Marla to Rs,3,154 per Marla in Award No,38/4 and from Rs,1,242 per Marla to Rs,3,954 per Marla in Award No,32/4 alongwith 15% compulsory acquisition charges and 6% simple interest from the date of taking over the possession of the acquired land till final payment is realized.
3. Both the parties challenged the above mentioned judgment before the learned Peshawar High Court, Peshawar through aforesaid R.F.As. Which were disposed of by the impugned judgment.
Hence these appeals.
4. We have heard Hafiz S.A. Rehman, learned Advocate Supreme Court for the appellant and M/s Haji Muhammad Zahir Shah and Muhammad Umar Khan, learned Advocate Supreme Court for the respondents and have gone through the record and the proceedings of the cases in minute particulars.
5. Hafiz S.A. Rehman, learned Advocate Supreme Court for the appellant mainly contended that the learned Referee Judge as well as the learned High Court have committed the error of fact and law patent on record, hence their judgments and decrees are unsustainable and liable to be set aside.
According to him, both the Courts below have not taken into consideration the relevant and admissible evidence while enhancing the rate of compensation without looking to the location, nature, potential value and future use of the acquired land. He vehemently urged that the rate of compensation fixed by the Land Acquisition Collector was just and reasonable and was based on proper appreciation of evidence as such the same may be maintain'.
6. On the other hand, learned counsel for the respondents supported the impugned judgment and stated that the same does not suffer from any-legal infirmity to qualify for being interfered with by this Court. They argued that the learned Referee Judge has enhanced the compensation properly while assessing the value of the land in question being Shah Nahri, its location, potentiality and prices on the report of Halqa Patwari and also on one year average during the period the land was acquired. In support they placed reliance on the cases of Secretary to Government of N.-W.F.P., Peshawar and 15 others v. Haji Fateh Khan and 15 others (2001 SCM R 974) and Pakistan Burmah Shell Ltd. v. Province of N.-W.F.P. And 3 others (1993 SCM R 1700).
7. We are not persuaded to agree with the contentions raised by the learned counsel for the appellant and strike down the enhancement made in the amount of the Awards by the" learned Additional District Judge and :maintained by the learned High Court. In our view, the enhancement has been made validly keeping in view the provisions of section 23 of the Act whereby the dais: relevant for determination of the market value of the land in question is the date of issuance of Notification under section 4 of the Act. The market value has been described as what a willing purchaser would pay to the willing seller. For assessing the market value, it is also essential to look into the location of the land in question, its potentiality and the amount of sale of similar kind of land in the vicinity at the relevant time.
8. At this juncture, a reference to the statement of Patwari Halqa SherBandur (P.W.2) recorded in all the three cases, would be relevant. According to him, the land in question viz. Khasra No,87 was situated on the bank of the main road called Nissatta Road and the same was fit for the purpose of commercial and industrial units and had got higher potential value. He prepared one year average in respect of the whole village from 15-1-1983 to 26-8-1983 and from 28-1-1985 to 12-11-1985.
According to him, the price of per Marla as per one year average came to Rs,4,454.50, Rs,3,954 and Rs,4,974 respectively. He also prepared Roznamcha Waiati dated 20-3-1984, the copy of which was exhibited. During the acquisition proceedings he had inspected the site and assessed the value of improvements made by the respondents and entered the same in the Roznamcha Waqiati. As regards Khasra No,156, the other acquired land, he produced one year average. In respect of land from 10-2-1983 to 10-3-1984. According to which, the price of one Marla was Rs,3,606-58. The said land was linked through metalled road, as such was able to be used for industrial and commercial purpose thus was of high potential value. Whereas regarding Khasra No,157, he stated that the same was situated in Abadi and was linked through a metalled road with the rest of the vicinity. He also produced one year average from 15-1-1983 to 264-1983 and according to this average, the price of one Marla was Rs,3,954. The land was also fit for commercial and industrial purpose and such was of a considerable potential value.
9. Admittedly the above mentioned land was acquired in the year 1983 and Notification under section 4 of the Act was issued during that year. From the perusal of the record as well as the statement of Halqa Patwari, we are of the opinion that the learned Referee Judge has rightly enhanced the rate of compensation while keeping in view the nature, characteristic and potentiality of the acquired land and on one year average in the vicinity. The land in question being Shahi Nahri in nature was also of high potential value. The disputed land is situated out of -the jurisdiction of the Municipal Corporation, Mardan, as such the contention that this Court in Civil Appeals Nos.35-P/91 and 36-P/91, decided on 17-12-1992 had fixed the compensation of the acquired land at the rate of Rs,15,000 per Marla would not be considered as an example in these cases mainly because of the reason that the land in former case was situated within the jurisdiction of Municipal Corporation, Mardan, whereas in the latter the same is situated outside its jurisdiction. In cases referred supra, this Court had also taken into consideration all the above aspects for determining the rate of compensation in the Land Acquisition matters.
10. For all these reasons, we see no lawful basis to interfere with the impugned judgment.
Accordingly these appeals 'are dismissed with no order as to costs.