MUHAMMAD SAEED and 78 others vs COLLECTOR ACQUISITION LAND, MANSEHRA and 3 others

' This first regular appeal is directed against the order of Additional District Judge/Land Acquisition Collector, Mansehra dated 27-34994 vide which the reference/objection petition of the appellants for enhancement of the compensation amount against the Award dated 2-11-1986 was dismissed.

2. Facts of the case briefly stated are that land measuring 153 Kanals and 3 Marlas situated in Revenue's Estate of Ganda, Tehsil Mansehra was acquired for the construction of District Jail, Mansehra at the rate of Rs,15,000 per Kanal alongwith 15 per cent. Compulsory acquisition charges.

A Notification under section 4 of the Land Acquisition Act, 1894 was issued by the Collector on 12- 104985 and thereafter the Award was announced by him on 2-11-1986. Aggrieved by the aforesaid Award the appellants filed objection petition under section 18 of the Act for enhancement of the amount of compensation at rate of Rs,70,000 per Kanal alongwith other benefits.

3. We have heard the learned counsel for the appellants and the learned Assistant Advocate- General for the respondents. While giving finding on issue No,3 the learned Referee Judge did not take into consideration the schedule of averages Exh.P.W. 1/2 and Exh.P.W. 2/1, vide which the Patwari Halqa had calculated Rs,26,132 and Rs,50,421.40 the average price of one Kanal, respectively. The Referee Judge was of the mind that since these two averages have been prepared from the sale mutations which were effected in the Revenue Record for the purposes of construction, hence were not relevant. The report of the Commissioner was also rejected on the sole ground that it was prepared while keeping in view the sale of lands for construction of houses etc. Despite of the fact that respondents subsequently withdrew from their objection on the report of the commission.

4. We are not satisfied with the findings of the learned lower Court recorded under issue No,3. Under the law the consideration in such like circumstances will be "The purpose of sale of land" in comparison to the purpose for which the land was acquired under the Land Acquisition Act.

5. The perusal of the contents of the Notification under section 4 and the Award announced under the provisions of Land Acquisition Act would show that the land under reference was acquired for the purpose of construction of Jail so the only criteria for assessment of the price of land would be that, only those mutations of sale and other evidence will be considered which will be pertaining to transaction effected for construction purposes. Exh.PW 1/2 is the schedule of average prepared by the Patwari Halqa Aide which the average price comes to Rs,26,132 per Kanal. Similarly Exh.P.W. 2/1 gives market value of the suit land as Rs,50,421.40 per Kanal. These two averages have been prepared by the Patwari Halqa on the basis of sale mutations which were effected for the purposes of construction of houses etc. There is yet another attested copy of Mutation No,988 attested on 26-3-1985 vide which similar kind of one Kanal of land was sold for Rs,40,000 in the same village.

The Court had issued a Commission for the determination of the said purpose and according to its report the market value of one Kanal has been assessed as Rs,40,000. It has been averred by the appellants in their reference petition as well as in their evidence that the suit property is situated adjacent to Mansehra Town and near Commercial/Industrial area. In this respect Noorullah Khan, S.O.K. Who appeared as P.W.5 in the trial Court has brought on record the copies of AsleMasavi in respect of village Ganda and Mansehra and had stated: "That the property under reference situates on the main road which leads to Jallou Shahelia from Mansehra. Village Shahelia is contiguous to the Mansehra Town. The property shown in the Exh.P.W. 5/6 has been acquired for Small Industrial Estate. The property in reference situates in the right side of said Jallou and Shahelia Road while Industrial area is situated on the left side of the said estate Road". This witness has not been cross-examined on these versions by the respondents, meaning thereby that they admit the location of the suit property lying adjacent to the Industrial area and also adjacent to Mansehra Town, as correct.

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 `13anjar' 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.

' In the light of the foregoing reasons, this appeal is accepted, the judgment and decree of the Referee Judge is set aside and the award of Collector is modified in the above terms. Costs to follow the events.