' Land Acquisition Collector, Mardan on the request of Executive Engineer, Highway Division, Mardan acquired land measuring 7 Kanals, 44 Marlas situated in the Revenue Estate of Mardan for construction of duel carriage way between Nowshera and Mardan and bypass Road up to Kacha Garhi. Land Acquisition Collector announced Award No,49/1 on. 22-6-1989 whereby he fixed Rs,3,389.69 per Marla. Thereafter another Award No,69/3 was published on 2-9-1992, whereby the Land Acquisition Collector only changed Khasra Numbers of the acquired land but reduced the compensation to Rs,3,042.51 per Marla.
2. Ghulam Ahmad appellant in R.F.A. No,85 of 1997 was owner of land measuring 1 Kanal, 6 Marlas which was acquired he filed Objection Petition No,43/4 of 1996 which was referred to the learned Referee Court for determination. The learned Referee Court after framing issues, recording pro and contra evidence of the parties enhanced the amount of compensation to Rs,5,016.51 per Marla.
Compulsory acquisition charges at the rate of 15% and simple interest at the rate of 6% was also granted vide judgment and decree dated 10-4-1997. Feeling aggrieved with the said judgment and decree, the landowner/appellant has filed R.F.A. No,85 of 1997.
' Muhammad Nawaz Khan etc. Whose land measuring 5 Kanals, 18 Marlas has also been acquired have also filed R.F.A. No,97 of 1997, whereas Abdul Khaliq etc., have filed R.F.A. No,98 of 1997. Since all (Lc the appeals emanate out of the same award and similar question of law and facts are involved, therefore, I shall decide the above mentioned appeals through this single judgment.
3. Mr. Muhammad Alam Khan, Advocate the learned counsel representing appellants in R.F.A. No,85 of 1997 and Mr. Muhammad Aman Khan, the learned counsel representing appellants in R.F.As.
Nos,97 and 98 of 1997 argued that there were two Awards issued for acquiring same property, first Award No,49/1 was issued on 22-6-1989 Exh.O.W.1/2, whereby the Land Acquisition Collector fixed Rs,3,389.69 per Marla for the acquired land and thus, in order to bring alignment of the Road in order, instead of corrigendum another Award No,69/3 was published on 2-9-1992 Exh.O.W.1/1. Only Khasra numbers of the acquired land were changed but astonishingly the compensation was reduced to Rs,3,042.51 per Marla, which was illegal.
4. It was also argued that in Award No,49/1 section 4 Notification was issued on 7-3-1984. The Collector, Land Acquisition based Award on 1 year average commencing from 13-3-1983 to 13-3- 1984, whereas in the second Award No,69/3 Exh.O.W.1/1, section 4 Notification was issued on 1-8- 1991. The said Award was also based on 1 year's average for the period from 8-1-1990 to 8-1-1991.
The compensation between the period of first Award and the second Award was enhanced, but the said period was not taken into consideration either by the learned Acquisition Collector or by the Referee Court.
5. It was also argued that the market value of the land per Marla in the village where the land in dispute was situated was Rs,50,000 per Marla. The learned trial Court while placing reliance upon 1 year's average for the period from 2-9-1991 to 2-9-1992 Exh.O.W.2/10 which was in respect of only Wand and the area but not taking the entire village fixed the compensation. Had the 1 year's average pertaining to the entire area been taken into consideration, the per Marla compensation would have been much higher than the one fixed by the learned Referee Court.
6. It was further argued that 1 year's average for the period 2-9-1991 to 2-9-1992 Exh.O.W.2/10 shows that the price of per Marla comes to Rs,12,654 but the learned Referee Court has misread the evidence and has based his findings on 1 year's average which was not exhibited on record.
7. It was further argued that the learned trial Court had sent a local Commissioner Mr. Hakim Said, Advocate to inspect the spot and submit his report about its market value who submitted his report, according to which the market value of she acquired property 1 years prior to Award, dated 9-2-1992 was Rs,35,000 per Marla. The said report of the Local Commissioner was not objected to by the appellant, but the respondents raised objection, and the learned trial Court did not bother to summon the said Local Commissioner for recording his statement and that was the reason that the report of the Local Commissioner was not exhibited on record.
8. It was further argued that the acquired land is situated on Mardan-Charsadda Road, Amidst Abadi, on the eastern side is the new general bus stand Mardan, on the western side was Mardan Scarp Colony and on the western side is Plaza of Nawab Khan and on the other side is the other Abadi. Mardan Scarp Colony has now been declared as Campus Peshawar Engineering University, Mardan. This fact was admitted by Riazul Islam, Engineer Highway R.W.1 in cross-examination.
9. It was also argued that Sardar Ali, Patwari Halqa 0.W.2 also admitted that the acquired land was situated within the limits of Municipal Committee, Mardan and was surrounded by Abadi and had lot of potentials for residential and commercial purposes.
10. It was also argued that there was ample evidence available on record that the property in dispute was situated within the Abadi and had lot of potentials for commercial as well as residential purposes.
' On the other hand Miss Musarrat Hilali, the learned Additional Advocate-General argued that the learned Referee Judge keeping in view that the notification under section 4 of the Land Acquisition Act was issued on 7-1-1991 and while relying upon the one year average for the period from 2-9- 1991 to 2-9-1992 had fixed Rs,5,016.51 per Marla. The compensation fixed by the Referee Court was based on proper appreciation of Revenue Record, hence needed no interference by this Court.
' I have heard the learned counsel for the parties and perused the record.
' In order to prove their case, the landowners examined Fida Hussain, Head Clerk, Land Acquisition Cell Office of the Deputy Commissioner, Mardan 0.W.1 who placed on record copy of Award No,69/3 Exh.O.W.1/1, Award No,49/1, Exh.O.W.1/2, letter No,7090 dated 27-12-1990 Exh.O.W.1/3, copies of Notification under sections 4 to 6 of Land Acquisition Act Exh.O.W.1/4 to 1/6, 1 year average for the period of 8-1-1990 to 8-1-1991 Exh.O.W.1/7, 1 year average for the period 13-3-1983 to 13-3-1984 Exh.O.W.1/8. Copy, of Notification under section 9 of the ibid Act - Exh.O.W.1/9. Reply of landowners Exh.O.W.1/10, Shajara, Kishtwar and copy of Field Book Exh.O.W.1/11 and Exh.O.W.1/12, 1 year average Exh.O.W.1/13. Copy of Daily Diary report dated 27-9-1987 whereby possession of the property in question was taken over was exhibited as Exh.O.W.1/14.
' Sardar Ali Khan, Patwari Halqa was examined as 0.W.2. He placed on record copy of Jamabandi for the year 1980-81 Exh.P.W.2/1, Aks Shajara Kishtwar Exh.O.W.2/2, site plan of the acquired land Exh.O.W.2/3, copy of acquittance roll Exh.O.W.2/4, 1 year average for the period from 7-3-1983 to 7- 3-1984 and averages from 2-5-1984 to 2-9-1992 Exh.O.W.2/5 to 2/10.
' One of the land owners appeared as 0.W.3 and claimed that the market value of the acquired land was Rs,40,000/50,000 per Marla. Copies of various mutations and registered deeds were placed on record as Exh.O.W.3/1 to 3/8. With this the evidence of the appellants/ landowners was closed.
' In rebuttal the acquiring Department only examined Riazul Islam, Sub-Engineer Highway Division, Mardan as R.W.1, who stated that the Land Acquisition Collector had fixed the compensation on the basis of 1 year average which was reasonable and did not require any enhancement. Neither any document was placed in rebuttal nor any other witness was examined in support of the contention of the acquiring Department. The evidence of the respondents was thus closed.
The question which needs determination in this case is as to whether the compensation has been fixed in accordance with section 23 of the Land Acquisition Act or not. The reply to this question is in negative. While dealing with the question of fixation of compensation in the following reported judgments:--
(1) Government of N.-W.F.P. Through Collector Mardan and others v. Abdul Samad Khan and others PLD 2002 SC 422, (2) Nisar Ahmad Khan and others v. L.A.C., Swabi and others PLD 2002 SC 25, (3)
Province of Punjab through Collector Attock v. Engr. Jamil Ahmad Malik and others 2000 SCM R 870 and (4) Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and others 1999 SCM R 1647.
' The august Supreme Court of Pakistan laid down criteria. In paras. IV to XIII containing some of the principles are quoted below for convenience:- "(iv) The best method of determination of tlie market price of the plots of landowner the acquisition shall rely on instance of sale of its near about the date of notification under section 4(1) of the Land Acquisition Act. The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighbouring locality, the potential value of the land need not be separately awarded because such sale covers the potential value.
(xiii) the value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted should 'be taken into consideration."
' The august Supreme Court of Pakistan in the above mentioned cases has laid down that the basic method is to take into consideration the instances of sales of the adjacent land made shortly before, and after notification. Market value is to be determined on the basis of the instances of sale of land in neighboring locality, the potential value of the land need not be separately awarded because such sale covers the potential value. Moreover, the value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation had been adopted should be taken into consideration.
' In the case in hand the Land Acquisition Collector. Had fixed the amount of compensation in both the awards for the land on the basis of 1 year's average Exh.O.W.1/1 and Exh.O.W.1/8. He had failed to take into consideration the other factors which are relevant for determining the amount of compensation. The Land Acquisition Collector failed to appreciate that the acquired land was situated on main Mardan-Charsadda Highway Road, in the central starting point of all the roads.
On the Southern side is main Sugar Mills Road, on the Eastern side is the New Bus Stand, on the Western side is the office of Pak German IRDB, Shops and Colony for WAPDA Scarp. The appellants successfully proved that the land in question was situated in thickly populated area, on the main road surrounded by market and other shops. What to speak of the evidence produced by the landowners, the sole witness produced by the respondents namely Riazul Islam, Sub-Engineer in cross-examination admitted:-- "I have seen the suit-land. It is situated on the main MardanCharsadda Highway Road. The same is situated in the central starting point of all the roads, Southern side Sugar Mills Road, on the Eastern side new bus stand, on the Western side is the Office of Pak German, IRDP, shops and colony of WAPDA, Scarp, which is at a distance of 1000 feet from the suit-land. It is correct that the market of Nawah Khan is situated in the vicinity but, however, it might be at a distance of 200 feet .Approximately. It is correct that the general bus stand has been set up in 1978. Thereafter the property in its vicinity has become commercial."
' Therefore, it had potential value for commercial 'purposes. Moreover, it was situated within the thickly populated area. It, therefore, had lot of potential for residential purposes.
' Keeping in view the above mentioned evidence and the law laid down by the august Supreme Court of Pakistan, it can be safely held that not only the Collector, Land Acquisition, but the learned referee Judge also ignored the Revenue Record as well as the potential value of the acquired land.
I, therefore, accept the appeals in hand and while relying upon one year average for the period from 2-9-1991 to 2-9-1992 Exh.O.W.2/10 enhance the compensation of acquired land to Rs,12,654 per Marla. The appellants shall also be entitled to 15% compulsory acquisition charges and 6% simple interest on the enhanced amount. There shall be no orders as to costs.