Government of Pakistan through Secretary, Ministry of Defence Rawalpindi Military Estates Officer, Hazara Circle Abbottabad Vs Mst. Ayesha Bibi widow and others

Judgment Sheet

WAR HICH COUNT

JUDICIAL DEPARTMENT

Reeular First Appeal No.161-A/2023 with CM No.353-A/2023, CM No.228-Al2023 and CM No.372-Al2023

Govt of Pakistan....... (Appellant) versus

Mst.Ayesha Bibi etc... (Respondents) Present: Syed Shahid Mehboob, Assistant Attorney General for appellant.

Mr.Nasrullah Khan Jadoon, Advocate for respondents.

Date of hearing : 25.09.2023.

JUDGMENT

MUHAMMAD IJAZ KHAN. J.- Through this single judgment, this court intends to decide this Regular F'irst Appeal No.161-A/2023 titled "Govt of Pakistan vs. Mst.Ayesha Bibi etc" as well as the following Regular First Appeals as all of them have arisen from a common Award and common questions of law and facts are involved therein:- (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad Ijaz Khan

1.Resular First Anneal No.162-Al2023 with CM No.354-A/2023. CM No.229-Al2023 and CM No.373-A/2023.

Govt of Pakistan vs. Ahmed Raza

2.Resular First Appeal No.163-A/2023 with CM No.357-Al2023. CM No.311-A/2023. CM No.230-Al2023 and CM No.374-Al2023. Govt of Pakistan vs. Arab Khan and others

3.Reeular First Anpeal No.164-Al2023 with CM No.355-A/2023. CM No.231-Al2023 and CM No.375-A/2023.

Govt of Pakistan vs. Muhammad Imran etc

4.Reeular First Anneal No.165-A/2023 with CM No.347-Al2023. CM No.232-Al2023 and CM No.376-A12023.

Govt of Pakistan vs. Basharat Hussain etc

5.Resular First Anpeal No.166-Al2023 with CM No.377-N2023.

Govt of Pakistan vs. Mst.Shahnaz Asghar etc

6.Resular First Anneal No.l67-Al2023 with CM No.358-A/2023. CM No.295-Al2023. CM No.234-Al2023 and CM No.378-A/2023. Govt of Pakistan vs. Khalid Mehmood etc

7.Resular First Apneat No.168-A/2023 with CM No.360-A/2023. CM No.235-Al2023 and CM No.379-A12023.

Govt of Pakistan vs. Danish Sheryar

8.Begglar First Anneal No.169-A/2023 with CM No.346/2023. CM No.236-Al2023 and CM No.380-A/2023.

Govt of Pakistan vs. Nadeem Khan

9.Bguler First Appeat No.lffi No.342-Al2023. CM No.237-Al2023 and CM No.381-A/2023.

Govt of Pakistan vs. Muhammad Pewaiz Abbasi

10.Resular First Apoeal No.171-Al2023 with CM No.341-A/2023. CM No.238-A/2023 and CM No.382-A/2023.

Govt of Pakistan vs. Mehmood etc (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad ljaz Khan

J

11.Resular First Anneal No.l72-Al2023 with CM No.340-A/2023. CM No.279-Al2023. CM No.239-Al2023 and CM No.383-A/2023. Govt of Pakistan vs. Zakir-ur-Rehman etc

12.Resular First Anneal No.173-Al2023 with CM No.339-A/2023. CM No.240-Al2023 and CM No.384-A/2023.

Govt of Pakistan vs. Khalid Khan etc

13.Reeular First Anneal No.174-Al2023 with CM No.338-A/2023. CM No.241-Al2023 and CM No.385-4/2023.

Govt of Pakistan vs. Mufti Nisar Ahmad

14.Resular First Appeal No.l75-A/2023 with CM No.343-A/2023. CM No.242-Al2023 and CM No.386-A/2023.

Govt of Pakistan vs. Shahzaman Khan etc

15.Resular First Anneal No.176-Al2023 with CM No.344-Al2023. CM No.243-Al2023 and CM No.387-A/2023.

Govt of Pakistan vs. Shakeel Ahmad Mufti

16.Reeular First Anneal No.177-Al2023 with CM No.345-A/2023. CM No.244-Al2023 and CM No.388-A/2023.

Govt of Pakistan vs. Muhammad Riaz Khan

17.Resular First Appeal No.178-A/2023 with CM No.351-A/2023. CM No.345-A/2023 and CM No.389-A/2023.

Govt of Pakistan vs. Muhammad Anwar Khan etc

18.Reqular First Apneal No.179-Al2023 with CM No.361-A/2023. CM No.246-Al2023 and CM No.390-A/2023.

Govt of Pakistan vs. Mst.Mukhtiyar Begum

19.Resular First Anneal No.180-A/2023 with CM No.359-A/2023. CM No.247-Al2023 and CM .0. \ No.39l-A/2023.

Govt of Pakistan vs. Muhammad Younas etc

20.Reeular First Anpeal No.181-A/2023 with CM No.349-Al2023. CM No.248-Al2023 and CM No.392-A12023.

Govt of Pakistan vs. Sohail Khalid (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad ljaz Khan

21.Resular First Anpeal No.l82-A/2023 with CM No.348-A/2023. CM No.249-Ai2023 and CM No.393-4/2023.

Govt of Pakistan vs. Masood-ur-Rehman etc

22.Resular First Anneal No.l83-A/2023 with CM No.337-Al2023. CM No.250-A/2023 and CM No.394-A12023.

Govt of Pakistan vs. Muhammad Anwar Khan etc

23.Repular f irst Anneal 184-N2023 with CM No.352-A/2023. CM No.300-A/2023. CM No.251-A/2023 and CM No.395-A/2023. Govt of Pakistan vs. Mst.Fatima Jan etc

24.Resular First Anneal No.185-A/2023 with CM No.336-A/2023. CM No.252-Al2023 and CM No.396-A/2023.

Govt of Pakistan vs. Mst.Noor-un-Nisa etc

25.Repular First Anneal No.186-A/2023 with CM No.335-A/2023. CM No.253-A/2023 and CM No.397-412023.

Govt of Pakistan vs. Muhammad Jehangir etc

26.Reeular First Anneal No.187-A/2023 with CM No.333-A/2023. CM No.254-Al2023 and CM No.398-A/2023.

Govt of Pakistan vs. Lal Khan etc

27.Resular tr'irst Apneal No.188-A/2023 with CM No.334-Al2023. CM No.255-A/2023 and CM No.399-A/2023.

Govt of Pakistan vs. Ali Gohar etc

28.Resular First Anneal No.189-A/2023 with CM No.332-Al2023. CM No.256-Al2023 and CM No.400-A/2023.

Govt of Pakistan vs. Mst.Tazheen Batol etc

29.Resular First Anneal o.190-N2023 with CM No.331-A/2023. CM No.257-Al2023 and CM a 17 No.401-A/2023.

Govt of Pakistan vs. Mst.Razia Yasmeen

30.Resular First Anneal No.19l-A/2023 with CM No.330-A/2023. CM No.258-A/2023 and CM No.402-Al2023.

Govt of Pakistanvs. Zardad Khan etc (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad ljaz Khan

3l Resular First Anneal No.No.l92-N2023 with CM No.329-Al2023. CM No.259-Al 2023. CM No.493-Al2023 and CM No.403-A/2023 Govt of Pakistan vs. Malik Muhammad Younas

32.Resular First Anpeal No.193-A/2023 with CM No.328-A/2023. CM No.260-Al2023 and CM No.404-Al2023.

Govt of Pakistan vs, Azhar Hussain etc

33.Resular First Anneal No.194-Al2023 with CM No.327-Al2023. CM No.261-Al2023 and CM No.405-A/2023.

Govt of Pakistan vs. Syed Fida Hussain Shah

34.Resular First Anneal No.195-A/2023 with CM No.362-Al2023. CM No.306-A/2023. CM No.262-Al2023 and CM No.406-A/2023. Govt of Pakistan vs. Ghulam Mustafa etc

AND

35.Reeular First Anneal No.196-A/2023 with CM No.l96-A/2023. CM No.263-Al2023 and CM No.407-A12023.

Govt of Pakistan vs. Sarfraz etc

2.Precisely, the facts necessary for the disposal of the aforesaid appeals are that the Ministry of Defence Government of Pakistan approached to the Land Acquisition Collector Abbottabad to acquire a land for defence purpose ,r7 and thus the District Collector Abbottabad declared its intention by issuing a notification under section 4 of The Land Acquisition Act, 1894 (hereinafter is to be referred as Act of 1894) (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad ljaz Khan

dated 29.04.2003 for acquisition of a specific property in Mouza Nawanshehr Shomali Kakul Road Abbottabad, measuring 193 Kanals 7 Marlas for the public purpose i.e. for extension of training area of Pakistan Military Academy (P.M.A) Kakul, the detail of Khasra Number and coresponding area in every Khasra Number is fully mentioned in the aforesaid notification.

3.After issuance of the afbresaid Notification, other formalities as required under the Act of 1894 were also complied with by issuing Notification under section 5 on 05.06.2004, notification under section 6 on 18.12.2004, notification under sections 9ll0 on 12.01.2005 and thus after fulfilling of the whole prescribed procedure as stated hereinabove, the same 2 culminated into issuance of an Award No.179 dated 28.11.2005 whereby market value of the acquired land was fixed on the basis of Ost- Yaksala. The same is reproduced below:

(Jamil) (5.8.) Hon'ble Mr.Jttstice Muhammad ljaz Khan

A Sr. Kind Area Rate per Rate per Total No. of Kanal Marla Marla Kanal Land I Bahar 193 07 r5318147 3,06,369140 5,92,36,523/19 di Abadi 15 % Compulsory acquisition charges 88,85,478152 Total 6,81,22,002107

3%o Cantt: Board attestation of mutation fees 20,43,660106 Total of land 7 ,01 ,65,662107

B Compensation of fruit bearing trees 14,6001- 15 % compulsory Acquisition charges 2,1901- Total t6,790 C Compensation of non-fruit bearing trees 1,32,830/- l5 % compulsory Acquisition charges 19,924150 Total 1,52,754/50 D Compensation of Built up Property/Foundation etc 4,06,8651- l5 % Compulsory Acquisition charges 61,02917 s Total:- 4,67,894175

Grand total of column A, B, C and D 7,08,03,101t32 Above/total Awarded amount.

(Seven Crore eight lacs three thousand one hundred & one/32 ps: only)

4.The respondents/land owners were dissatisfied from the above stated market value of their land, therefore, they filed their respective References under section 18 of the Act of 1894 and the appellant (then respondent) was summoned and it submitted its written reply to the t? aforesaid References of the land owners and consequently the learned Referee Judge framed as many as f,lve issues and both the parties were required to produce their respective evidence. In (Jamil) (5,8.) Ilon'ble Mr.Justice Muhammad ljaz Khan

support of their References, all the land owners produced their respective evidence and thereafter the appellant/acquiring department also produced its evidence

5.Initially these Objection Petitions were decided by the learned Referee Judge vide judgment and decree dated 21.12.2012 whereby compensation amount for the acquired land was fixed as Rs.20,80,120148 per Kanal, which judgment and decree were challenged before this court and this court vide order/judgment dated 29.05.2014 set aside the same and remanded the Objection Petitions/References back to the learned Referee Judge for appointment of a local commission and thereafter to decide the Objection Petitions afresh. After the remand, Qazi Obaid-ur- Rehman and Mr.Muhammad Ali Khan Advocates were appointed as local commissioners, who submitted their detailed report dated 17.11.2014 and thereafter, the learned Referee Judge vide judgment and decree dated 09.05.2015 enhanced the compensation amount to Rs.15,81,7401- per (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad ljaz Khan

Kanal which judgment and decree were again challenged before this court through RFA No.49- N2015 and other connected RFAs in which both the counsel for the parties, after arguing the case at some length, agreed that let the impugned judgment passed by the leamed Referee Judge be set aside and the case be remanded back to the learned Referee Judge for decision afresh, after deciding the fate of the Objections filed by the respondents over the commission report and in case of disagreement with the report of local commission, afresh local commission may be appointed to determine the market/potential value of the acquired land in the year 2003 to 2005. In the wake thereof, this court vide order/judgment dated 23.02.2020 passed in RFA No.49-Al2015 allowed those RFAs and again remanded the cases back to the learned Referee Judge for decision * afresh in light of the contention and consent given by the learned counsel for the parties. After the said remand, the leamed Referee Judge heard the arguments of all the land owners/objectors as well (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad ljaz Khan

as of the learned counsel representing the acquiring department and thereafter, accepted these Reference Petitions vide judgment and decree dated 27.04.2022 and thereby granted the following relief:

ttKeeping in view my above discussion, the instant Reference is hereby allowed and the petitioners are held entitled to receive the compensation amount of Rs.70,00,000/- per kanal, alongwith compulsory acquisition charges @ tloh and simple interest @ 60/o per annum on the enhanced amount of compensation from the date of taking the possession of the land by the respondents till the final payment of the amount of compensation. Parties Ieft to bear their own cost."

6.Feeling aggrieved of the aforesaid judgment and decree of the learned Judge Referee ,r2 Court, the appellant i.e. acquiring department has filed this and all the connected appeals, whereas, the land owners have not challenged the same.

(Jamil) (5.8.) Hon'ble Mr.Justice Muhammad Iiaz Khan

7.Initially, when these appeals were filed, appellant did not affix the requisite court fee, therefore, the Additional Registrar of this court objected to the same and then thereafter the appellant requested for extension of time, the sarne was accordingly extended to it by the Additional Registrar of this court from 20.02.2023 to 18.03.2023, then to 27.04.2023 and then to 25.05.2023 and again to 24.06.2023 but the appellant did not deposit the requisite court fee, therefore, these appeals were placed before this court where on 21.06.2023 appellant was directed to affix the requisite court fee within a period of one month, however, the said order was not cornplied with and it was on 09.09.2023 when CM No.353-Al2023 in the instant appeal and similar Civil Miscellaneous Applications were filed in all the connected appeals for extension of 'z time to deposit the requisite court fee. During this period, some of the respondents/land owners also filed applications for dismissal of these appeals on the ground of non-affixation of the requisite court (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad liaz Khan

fee despite court direction and both the aforesaid applications were fixed before this court on 18.09.2023, however, it was deerned appropriate that before recording arry decision over these Civil Miscellaneous Applications filed by the rival parties, let the main case be also heard on merits, therefore, these cases were adjourned for today and today it was also brought into the notice of the court that in the meanwhile the appellant has filed CM No.372-Al2023 in this appeal and similarly applications in all the connected appeals whereby it has affixed the requisite court fee, therefore, the fate of all these Civil Miscellaneous Applications is to be decided at the later part of this judgment.

8.Today arguments of learned counsel for the appellant as well as for the land owners were heard in considerable detail and the record perused with their able assistance.

9.The main objection of the leamed counsel for appellant was that the learned Referee Judge while fixing the market value of the acquired land (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad liaz Khan

has not based its decision on valid grounds nevertheless he admitted at the bar that the worthy Collector has not fixed the market value of the acquired land in a fair manner by applying the criterion of One-Year Average which is not a correct criterion, so he was then confronted that whether the appellant has established any fair market value of the acquired land through its evidence if at all the same has neither rightly been determined by the Collector in the Award nor by the Referee Judge in the impugned order and judgment, he was unable to positively answer the same and rightly so as the whole record/evidence is completely silent about the stance of the appellant with respect to the correct market value of the acquired land. As against this, the stance of the respondents/land owners was that the market value fixed by the Collector in the Award was absolutely unfair and unjustified, whereas the leamed Referee Judge has correctly appreciated the materials on record by determining and fixing the market value of the acquired land.

(Jamil) (5.8.) IIon'ble Mr.Justice Muhammad liaz Khan

10.In view of the above contention of both the parties, the main epitome of the controversy between the parties is the fair determination of the market value of the acquired land and thus the following are the moot questions for the determination of this court:

(1)Whether the worthy District Collector, Abbottabad has rightly fixed the market value of the acquired land as Rs.3,06,369140 per kanal?

(2)Whether the learned Referee Judge has rightly enhanced compensation amount from Rs.3,06,369/40 per kanal to Rs.70,00,000/- per kanal?

(3)What would be the appropriate compensation amount of the acquired land on the available material?

11.In order to answer the above questions, now this court proceed to analyze and appreciate the evidence and material available on the file. As far as question No.1 is concemed, at the very outset, c it was noted that the worthy Collector has fixed the market value of the acquired land on the basis of Ost-Yaksala ()6t tl) which criterion is, on one (Jamil) (5,8.) Hon'ble Mr.hrstice Muhamntad ljaz Khan

hand, not in accordance with the spirit of section 23 of The Land Acquisition Act, 1894 and on the other, the same has since been disapproved by the Apex Court as well as by this court as it is settled since long that while determining the market value of the acquired land, Ost-Yaksala may be one of the factors, however, the same could not be the exclusive and authoritative factor for the same. The aforesaid established legal position has honestly been conceded by the worthy Assistant Attorney General at the bar as well and rightly so as the Apex Court in the case titled "Government of Pakistan throush Militarv Estate Officer. Abbottabad and another vs Ghulam Murtaza and others" reported as 2016 SCMR 1141 has since been held that numerous judgments and dictas given and laid down by this court with binding and laying guiding principles on the .c subject issue have unfortunately been conveniently ignored by the Cotrlector as he remained stuck to the one year average without taking care of present and future potentiality of (Jamil) (5.8.) IIon'ble Mr.Justice Muhammad liaz Khan

the land acquired. It has been repeatedly laid down that being a compulsory acquisition of land for public purposes, the owners of the land are deprived of its utility while at the same time the Collectors Acquisition simply impose their own opinion ordinarily based on one year average which is not a correct approach to the matter, as has been laid down by this court.

12.As far as questions No.2 and 3 are concerned, it is the case of the respondents/land owners from the very inception that the acquired land is situated in the heart of the Abbottabad city and it is within the cantonment area and the acquired property is a commercial property and it has the potential of all kinds of its utilities like construction of markets or of residential colonies, patrol pumps etc. It is also part of the evidence that the acquired land is one of the posh areas of Abbottabad and the same is surrounded by other posh residential colonies like Habibullah Colony and Jinnahabad Colony. It is also part of the record that PMA Kakul is a training institute of a (Jamil) (5.8.) Hon'ble illr.Justice Muhammad liaz Khan

high repute and the acquired land is adjacent to it as the same was acquired for the purpose of its extension. It is also part of the record that the acquired land could be used for commercial, residential and agricultural purposes. It is also part of the record that all social amenities like electricity, goS and water etc are available on the acquired land. The aforesaid characteristics/ qualities of the acquired land are manifestly reflecting from the Objection Petitions filed by the land owners, their statements' as well as statements of their witnesses as PW 2 and PW-3 namely Muhammad Javed and Mir Zaman

(Objector Attorneys) have categorically stated in their statements that:

"..The land is situated on PMA Kakul road opposite Bilal Masjid.

The iand is adjacent to Jinnah Abad, Habibullah Colony, Hassan Town, Lala Zar Colony, Shah Zaman ,r7 Colony where all the facilities of life were available...The property can be used for the commercial as r,vell as residential purposes."

(Jarnil) (5.8.) Hon'ble Mr.Justice Mtrhammqd ljaz Khan

Similarly, PW-5 namely Sajjad Akhtar has also confirmed the aforesaid characteristics of the acquired land as in his court statement he has categorically stated that:

L p' ,! i" Jr l, z i', t){( gt tt, 6lttr " , f /,,, ? 0l vt o.r) L tf ildeat ,,t ,Y iV' z-a L ,f* gft.,r -? Jv 6 4' , ."* 6/ du g,rl 6 ciu ,t' ..;V e( ,,r du dtu J$.

!t/ Jk d dV,' L -fr> gftrr ,tr Oiv dh-* -{o gfrrr -? 0t, vt !.tr o/ .frt 6fr,t -.- ;/ "c( { Potential Value ,!f X i ,\) /D gittt value D.t/ * -?(td, L,-+, [,] ,f { - J{ uv {t) 8o <- 7o i &,t,;t ,zooo /, afDr tLh L ! J*' ,',* d ,.c,")( 6l ,f {,,r G rr:.1 ,-f '+L/ { { O.,V ;t, ,zoos p. cttv .,{; ),t1' t J' L/ Ut { ot Uf t,t OU { , ,- C+ it{,r / tl) ltat tt _et <-.,./.i u6 Lt { & * ) arl

' Similarly, PW-7 namely Muhammad Siddique has also stated that:

)/ iv l- rf t,i ;t -? ,f(, J,/ ,f ,t gf t,t' -* 4 ,,/ t l:," ( '-t, gt; -rtY L & vt '>L.t.,,t dtt solgo 1- yt2 L *' {.,1 u.t/ t! 6Fu .fp ,? 1 t /rp 6Fr.,t -ff--V ) *.tr ,{ { *- Jd u,., giur--,;,f! jiii ),, Jk e ! r.+ dt ),, 6 6V, .,,,; ,f ,/,t -L Oc V 6 JPt t/ xf )" -t-''f

(Jamil) (5.8,) Hon'ble Mr.Justice Muhammacl liaz Khan

In his cross-examination he also stated that:

lc,gC d,,zoos Jv ,.f,.,r L 1f* ,f,r.,r I a,.,, - 'i, c- /n' dti k ,>,)) *d oi ; ,f Ll UV{ ,-( sl t ,f t L,/-tt s?..r' ,:,b -Ki L gt/tPMAiA {tt sol:o 4 tL,,:t t! *bur ,;s{, ,f* f,ut L, ,,{ "-7Jd0g',

13.Similarly, as per direction of this court, the local cornmission was appointed to visit the spot and to report about the location, ftiture potentiality and market value of the acquired land, who accordingly submitted their detail and comprehensive report where it has been observed as under:

t|'li t! PMA .,,r iy PMAO; +V ( 6Fu{ ,tiv a' 6rli 6)trPMA ,! t t vn-? i', ,4t ,t{v 1 .tila dr )/r PMA I JV -? + *rtd.i ttt ttfr JVt 4, -? dt ti L i tlT , (,{ ,.P e :rib e} L Jtfitttt\ cf .*: stt s.,P.i jV, ,t{V-t-a J" ,! ,-l{ ,; ' et,r ( t?

Otl g): 18 l/rtt ty s ui ,;V Jrl t/ iA-7 t1.21,(.i( & l,'U( dl,q/'t{V-? t)v,0 tf ', r) (,'D ,!V /-* eill 0V, L L ,>b li L ul ,,{rt , ,>l o)\ ,>t} , ,+ctivittessf/ ovt('ffU,,f ',/,.,r I o{ ? oilv 0V' ,f L -g[s?/

(Jamil) (5.8.) Hon'ble Mr.Justice Muhantmad ljqz Khan

In view of the above overwhelming eviclence available on file from which it can safely be concluded that the acquired land is situated in the hearl of Abbottabad city and the same can be used for all kinds of commercial activities as well as for residential colonies and even for agricultural purposes. It is also relevant to mention here that while considering Rs.70,00,000/- per Kanal for the acquired land, the worthy commissioner has observed that the market value of the acquired land is more than one crore per Kanal, therefore, the learned Referee Judge has rightly enhanced the compensation amount.

14.It is also part of the record and very relevant to mention here that in the year 2006 the same Pakistan Military Academy had acquired u some land through the acquisition process and at that time the said land was acquired @ Rs.65 lacs per Kanal though as per record it was a triangle shape of plot and it was in slant GIPD form, (Jarnii) (5.8.) Hon'ble Mr.Justice Muhammad liaz Khan

whereas the land of the respondents/land owners is a plain and huge area, therefore, the market value of the acquired land ought to be more than the aforesaid amount keeping in view its multiple characteristics, therefore, on this score too, the learned Referee Judge has rightly enhanced the compensation amount.

15.It is also worth consideration that Hazara Division including Abbottabad is a hilly area where prime and main factor for the potentiality and future prospect of a land is its plain kind of nature which is exactly the case here as the acquired land is a huge plain chunk and is situated in the heart of the Abbottabad city and that too within the cantonment area and the same is surrounded by patrol pumps, markets, shopping malls, schools, universities and hospitals, therefore, by all standards, the acquired land is situated at an ideal place, therefore, such aspects of these cases irave rightly been appreciated by the learned Referee Judge.

(Jamil) (5.8.) Hon'ble Mr.Justice Muhammad ljaz Khan

16.It has been the consistent view of Honourable Apex Court as well as of this court that while determining the market value of the acquired land, not only the existing potentiality and market value of the acquired land is to be considered but its future potentiality is also to be considered. It has also to be born in mind that it is not a transaction between a willing purchaser and a willing seller rather it is a transaction which has been enforced upon the land owners. It is also to be kept in mind while determining the market value of the acquired land that the land owners are not only to be paid the market value of the acquired land but they are to be compensated in such a manner so that they may not feel any depravation in future and as such by applying the aforesaid yardstick, the learned Referee Judge has rightly fixed the market value of the acquired v land. It was noted with great pain that the worthy Collector had fixed the market value of the acquired land only on the basis of One-Year Average and no other factors and matters were (Jamil) (5.B.) Hon'ble Mr.Justice Muhammad ljaz Khan

considered, therefore, his Award was rightly corrected by the learned Referee.

17.As far as the objection of the learned Assistant Attorney General that the Referee Court has granted compensation amount to the respondent/land owners, which they have not even prayed in their objection petitions, suffice it to say that had the respondenVland owners been paid in the year 2005, then of course there would have been some force in the plea of leamed Assistant Attorney General, however, it is highly painful that even after lapse of more than 18 years till date respondent/land owners have not been paid a single penny and in this long period, the market value of the land generally and in city areas and more particularly in Cantonment areas has substantially increased, therefore, in their court statements which were recorded in the year 2010, the objectorsll,and owners have claimed a ry compensation of Rs.80/90 lacs per Kanals. The factor and concept of future potentiality is exactly the same which means that how and in what (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad ljaz Khan

manner the acquired land could be utilized in the future and by then what would be the market value of the acquired land, therefore, the learned Referee Judge has rightly granted Rs.70,00,000/- per Kanal over and above the claimed amount. In the case titled "Riaz Ahmad Khan vs. District Land Acquisition Collector. Mardan And 5 @" reported as ,

it was held that the availability of all the basic civic facilities in shape of Petrol/ CNG filling stations, hotels, hospital, townships, schools and colleges, Gas, Electricity, clearly speak about the present and future potentiality of the acquired land. It has also been observed in the aforesaid case that the Court can award the amount of compensation over and above what has been claimed by the petitioners in a reference under section 18 of the Land Acquisition Act, provided sufficient material exists to justifu the same. No ,7 doubt, the appellants have claimed an amount of Rs. 70,000/- per marla as market value of the acquired land, but the law is settled on the subject (Jamil) (5.8.) Hon'ble lv[r.Justice Muhammad ljaz Khan

that while determining the price of compensation the Referee Court shall consider evidence on record and to see whether the Land Acquisition Collector has considered the nature, location and future potentiality of the land acquired, in addition to the oneyear average price. For determination of compensation the demand of the land owners would also be immaterial. The Courts are under legal obligation to determine the fair compensation irrespective of the claim of land owner as that may be less or exorbitant. In the ibid case, the land owner had claimed an amount of Rs.70,0001- per marla which was granted by the Referee Judge, however, this court while partially allowing the appeal, enhanced the same to Rs. 1 25,00 0 I - per marla.

18.Another objection of the learned counsel for the appellant was that the learned Referee 7 Judge has entirely based the impugned judgment qua enhancement of the compensation amount on the report of local commissioner and thus as per his estimate, he has erred in law, however, it is (Jamil) (5.8.) LIon'ble Mr.Justice Muhammad ljaz Khan

clarified that in the earlier first round, appeals of the land owners were allowed and the cases were remanded back to the learned Referee Judge with the mutual consent of the parties including the appellant for the appointment of the local commissioner which was accordingly appointed and who submitted his detailed report, therefore, at this stage, such objection could not be raised.

Even otherwise, the collection of evidence through local commissioner is an admissible mode duly recognized by the Code of Civil Procedure and the mode of collection of evidence by a local commissioner has approved by the Apex Court in many cases including the case of "E4gsan @ vs Atta Muhammad (deceased) throush his Leeal Heirs" reported as 2021 SCMR 857 by holding that it is not always necessary that the Court may record evidence itself. For a variety of reasons, it may be recorded through a Commission. The Court as a principal may '7 exercise powers and delegate authority, under section 75 or Order XXVIII, for personal appearance of a witness in front of the (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad ljaz Khan

Commission either out of its own accord or on application of either party.However, it does not bar the Court itself of the authority to examine the witness where it is not satisfied. Similarly, in the case titled "Malik Tariq Ma and others VS Province of Puniab and others" reported as 2023 SCMR 102, the Apex Court has held that the Referee Judge has rightly relied on the report of the local commissioner who has visited the spot, prepared the site plan, recorded statements of the parties and witnesses and prepared his report stating that the land was very valuable and of commercial nature.

19.In view of the above discussion and expositions of law, it is held that the learned Referee Judge has rightly fixed the compensation amount of the acquired land and he has considered all those factors which are judicially approved by the superior courts of this country.

The Apex Court recently in the case titled ry .FEDERAI, GOVERNMENT OF PAKISTAN Throueh Ministrv of Defence Rawalnindi And Others vs 'o

(Jamil) (5.8.) Hon'ble Mr.Justice iv[uhammad ljaz Khan

reported as has

traced out judicially approved criteria for the determination of the fair market value of the acquired land. Para No.9 of the said judgment being relevant is reproduced below:

"9. This Court, while interpreting Section 23 of the Act has interpreted potential value to mean and include the following factors:

(i)The land has potentiality if it is in close proximity to a residential area, or the municipal limits of a city. Also to be considercd is that the acquisition of such land is proof of its potential for development. (Land Acquisition Collector and others v. Abdul Oqltum Malik and others 1980 scMR 63).

(ii)The land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, but also by reference to the uses to which it is reasonably capable of being put in the future; and market-value is the potential value of the property at the time of acquisition which would be paid by a willing buyer to a willing seller, rvhen both are ,r7 a<;tuated by business principles prevalent in the locality at that time. (Fazalur and others v. General Manager, S.I.D.B and another PLD 1986 sc 1s8)

(iii)Revenue record is not conclusive (Jamil) (5.8.) Hon'ble lvlr.Justice Muhammad Ijaz Khan

of the value of the land, rather it is the value of the use which the land is capable of and the use of the land in the vicinity. (Sardar Abdur Rau-f Khan ond others v. The Land Acquisition Collector/ $sloner Abbottabad and others 1991 SCMR 2164 and Land Acquisition Collector G,q C A/ T.D. (- (WAPDA.), Lahore and another v. Mst. Suruqta Mehmood Jan 2015 scMR 28).

(iv)The Court is to take into consideration the potentialities of the land, which may even include the price escalation, (sic) the issuance of notification under section 4(1) of the Act. (Land Acquisition Collector. Abbottabad and others v. Muhammad lqbal and others 1992 SCMR 1245) and Sarhad Development Authoriqt.

COO/CEO (Qfficio) and others v. Nawab Ali Khan and others 2020 scMR 26s).

(v)For determining the price which a willing purchaser would give to the willing seller relying only on past sales is not enough as the value of the land with all its potentialities may be determined by examining local propcrty dealers or other persons who arc likely to know the price that the e property can fetch in the open market. Where land is acquired near the Highway, its potentiality and future prospects are to be considered (Maqbool Ahmed Fatehallv and others v. The Collector, District Losbella and others 1992 SCMR2342).

(Jamil) (5.B.) Ilon'ble Mr.Justice Muhammad ljaz Khun

(vi)The possibility of land being used for a different purpose in future and its potential value on account of its situation near the developed area is important. (Province of Puniab throush Collector Bahawalpur, District Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692).

(vii)Classification or the naturc of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits. The potential uses to which the land can be put to is relevant. (Murad Khan throush his widow and 13 olhers v. Land Acquisition, Collector Pe..s and another

1999 SCMR 1647).

(viii)Amenities such as roads, water, gas, electricity are relevant as is availability of schools and colleges in the vicinity of the acquired land. Urbanization of the area shows great potentiality of the area. (Ministry o-f De_fence throuqh Secretarv. Governrusnlt (\ of Pakistan and othqrs y. Syed b/ Uqidj_Ba!!2009 SCMIT 105 and WAPDA throu S.E. Acquirins Cell CRBC Project \VAPDA. D.l. Khan and another v. Sy,ed Ali and others 2010 SCMR 82)."

(Jamil) (5.8.) Hon'ble Mr.Justice Muhammad ljaz Khan

In another case titled "Malik TARIO MEHMOOD and others vs PROVINCE OF PUNJAB and others" reported as 2023 SCMR W, the Apex Court has traced out all those factors which are to be considered while fixing the market value of the acquired land. Para No.7 of the said judgment being relevant is reproduced below:

"lJnder section 23(l) of the Act, compensation is to be determined on the basis of the market value of the land at the date of publication of the notification under section 4 of the Act. The Court assessing compensation is required to take into consideration not only the present purpose or the present use to which the land is applied but also any other more beneficial purpose to which it might reasonably be put by the owner. Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer. Vizagapatam IAIR 1939 PC 981. Indubitably, it is true that regard can be had only to the existing conditions and what is likely to happen in reasonably near future and compensation cannot be fixed on the basis of what might happen in the dim and distant future. Where there is a reasonable possibility of the land being put to a more profitable use within a reasonable period the same cannot be ignored in assessing its value. Bailgy y. Isle of Thanet Lieht Railwavs Comoanv [(1990) 1 QB 722]. Compensation has (Jamil) (5.B.) Hon'ble Mr.Justice Muhammad ljaz Khan

always to be determined by reference to the price which a willing vendor may reasonably expect to obtain from a willing purchaser Fazahx Rehman and others v. General Manager. SIDB and another IPLD 1986 SC 1581. When the land possesses some unusual, special or unique features as to its location or potentialities, due weight must be attached to all these elements. Askari Cement through Chief Executive v. Land Acquisition Collector (Industries) Punjab. etc 12013 SCMR 1644). After considering all the circumstances, the Court has to arrive at a fair estimate with reference to the surrounding circumstances and evidence in the case and to award a fair compensation on that basis. The Court further ought to be liberal in the sense that it should not be too meticulous or pedantic in dealing with the evidence. It is also true that an entry in the revenue record as to the nature of the land may not be conclusive. If the land acquired is found to be useful both for agricultural or non- agricultural purposes, merely on the ground that it was used as agricultural land by the owner till the time of its acquisition, its potentiality as non-agricultural land cannot be ignored. Sardar Abdut Rauf Khan and others v. Land Acquisition Collector/Deputy Commissioner, Abbottabad and others [1991 SCMR 2164)."

a Recently in two cases i.e. titled "National Highwav Authoritv vs Rai Ahmad Nawaz Khan and others" reported as @ and

(Jamil) (5.8.) Hon'ble Mr.Justice tr4uhammad ljqz Khan

JJ

titled "

vs Land Acquisition llector Mardan and g1!@" reported as @, the Apex

Court has extended the scope of section 23 of the Land Acquisition Act by observing that since a citizen/land owner is subject to eminent domain of the government, therefore, the claims of the land owners is to be considered sympathetically. Para No.8 of the judgment reported as 2023 SCMR 700 being relevant is reproduced below

"8. It is important to state that the intention of the legislature behind section 23 was that whenever a Court is determining the quantum of compensation to be awarded to those who had been subjected to exercise of the power of eminent domain under the LAA 1894, it needs to be considerate and sympathetic towards the claims made by those whose property was compulsorily taken by the state against their will for a public purpose. Section 23 allows a Court to compensate such landowners for giving up their properties for the greater good, on the doctrine of individual rights must give way to the greater public interest (salus populi suprema lex esto)."

0 So keeping in view the above string of authorities and the evidence brought by the parties as well as the commission report and the judicial (Jamil) (5.8.) I{on'ble Mr.Justice Muhammad ljaz Khan

consensus developed so far qua the matters which are to be considered for determination of the market value of the acquired land, the learned Referee Judge has rightly fixed the market value of the acquired land and he has not committed any illegally or irregularity, therefore, the impugned judgments and decrees need not any interference.

20.Accordingly, in view of the above discussion and expositions of law on the subject, the instant Regular First Appeal as well as all the connected appeals being bereft of any merits are hereby dismissed and consequently the impugned judgment and decree of the learned Referee Judge, Abbottabad dated 27.04.2022 is maintained and upheld.

CM No.353-A/2L23, CM No.228-Al2023 No.372-A12023.

MUHAMMAD IJAZ KHAN. J.- The appellant has filed CM No.3 53-N2023 for the extension of c time to deposit the court fee as well as CM No.372-A12023 for permission qua affixing the requisite court fee. The grounds mentioned therein, seem genuine, therefore, both these CMs (Jamil) (5.8.) Hon'ble Mr.Justice Muhammad liaz Khan

are aliowed and appellant is permitted to affix the court fee in the instant appeal and as the main Regular First Appeal has been dismissed on merits, therefore, CM No.228-N2023 filed by the appellant for suspension of the impugned judgment and decree has become infructuous, hence, the same is dismissed

ANNouncrn.

(Jamil)

JUDGE

(5.8.) Hon'ble Mr.Justice Muhammad ljaz Khan