COLLECTOR, LAND ACQUISITION, MARDAN and others vs Nawabzada M. AYUB

' CH. MUHAMMAD ARIF, J.---The above appeals under section 54 of the Land Acquisition Act (No,1 of 1894), hereinafter referred to as the Act, are directed against a common judgment of the Peshawar High Court, Peshawar in R.F.As. Nos.40 and 41 of 1993 whereby the present appellants' appeals were dismissed with the result that the enhancement of the rate of Rs,800 per Marla allowed by the learned Senior Civil Judge/ Referee Judge, was maintained.

2. Respective portions of the land in both the R.F.As. i,e, 30-acres inR.F.A. No,40 of 1994, and 88- Kanals 10-Marlas in R.F.A. No,41 of 1994 situated in Mauza Ghalla, Dher Tehsil and District Mardan were acquired for Industrial Estate Mardan. The rate of compensation for 3-acres of land was fixed at Rs,97.42 per Marla while that for 88-Kanals, 10-Marlas was fixed at Rs,101.72 per Marla in Awards No,1633-36/LAC, Mardan dated 3-7-1982 and 29/4 dated 22-1-1984, respectively. The respodnents/ owners preferred applications under section 18 of the Act for reassessment of rate of compensation through Court. Their case was that in view of the location of the acquired land on the G. T. Mardan Nowshera Road where Industrial and Residential Colonies are also located, the Land Acquisition Collector has ignored the potential value and prevailing market price of the suit lands which should be at the rate .Of Rs,2,000/5,000 per Marla. The learned District Judge, Mardan sent the applications to the Senior Civil Judge for disposal by order of the High Court. The following issues were framed in R.F.As. Nos.40 and 41 of 1994: ' R.F.A. No,40/94: "(1) Whether the compensation assessed for the suit property was not according to the market value of the suit property?

(2) What was the market value of the suit property at the time of its acquisition?

(3) Whether the suit property situated in industrial Area on Nowshera Mardan Road, and what is the potential value to the suit land?

(4) What should be the appropriate compensation of the suit property payable to the petitioners?

(5) Relief." R.F.A. No,41 of 1994: "(1) Whether the suit property situated on road side and adjacent to industrial area, if so its effect?

(2) Whether market value determined by the respondent is incorrect?

(3) What was the market value of the suit property at the time of its acquisition?

(4) Whether petitioners were not served through notice before acquisition of suit property, if so, its effect?

(5) Whether the petitioners was entitled to the relief sought?

(6) Relief."

' After receiving whatever evidence the parties wanted to adduce in support of their respective claims, the learned Judge /Referee Court enhanced the rate of compensation and fixed the same at Rs,800 per Marla along with 15% acquisition charges and 60% simple interest per annum on the enhanced amount from the date of possession till the date of payment.

3. The learned Judge in Chambers was seized of the R.F.As. Above-mentioned and after considering the evidence on the record exhaustedly and, after hearing the respective arguments on their behalf, came to the following conclusions: ' ...It was conceded in the course of arguments that the land acquired for construction of Foodgrain Godown situated on G. T. Mardan Nowshera Road is situated in the vicinity of land acquired through the aforesaid disputed Award. The appellants objected to the fixation of rate of compensation at the strength of judgments noted above on the ground that the properties therein are situated in the limits of Municipal Committee, Mardan and about 4/5 Kilometres away from the land in question. Yet the appellants failed to distinguish the nature of land in question and the land acquired for the construction of Foodgrain Godown.

"In view of the facts and circumstances brought on record it is an admitted fact that the land acquired by the respondents for Industrial Estate, Mardan is situated on G. T. Mardan-Nowshera Road, the land acquired for Foodgrain Godovvn was fixed Rs,800 per Marla. Sheikh Maltoon Township, Mardan is also in the vicinity and on the G. T. Road, Mardan-Nowshera lying in series one after the other and a commercial property. In view of the spirit of section 23 of the Land Acquisition Act,, 1894 the Land Acquisition Collector has to consider the potential value and future prospects of the land under acquisition in addition to one year average. The respondent-objectors have successfully established that there was an upward trend in the price of lands. The adjacent land for construction of Foodgrain Godown was acquired at the rate of Rs,800 per Marla. In these circumstances, the learned Senior Civil Judge/ Referee Judge has rightly enhanced the rate to Rs,800 per Marla."

4. Mr. Abdul Samad Khan learned Advocate Supreme Court appearing on behalf of the appelants- Collector, Land Acquisition, Mardan and 2 others, has objected to the impugned judgment of the High Court on the ground that the location of the acquired land has not been properly noticed by, the learned Judge Referee Court as well as the learned Judge in Chambers with the result that the enhancement of the price to Rs,800 per Marla cannot be sustained. According to him, the Land Acquisition Collector had given cogent reasons for fixing the rate at Rs,97.42 and Rs,101.72 per Marla and as the land was being sold privately to different persons at the rate shown in various mutations, the mere purchase for industrial area could not lead to enhancement of the price of the land. Contrarily, Mr. Muhammad Jamil, learned Advocate Supreme Court appearing on behalf of the respondents, has supported the impugned judgment/s whole-hog.

5. We have considered the arguments addressed at the Bar and have also gone through the available material with the help of the learned counsel for the parties. It is not the case of the appellants that the observations made by the learned Judge in, Chambers to the effect that (1) the Industrial Area, Mardan is situated on G.T., Mardan-Nowshera Road, (2) the rate of land acquired for Food grain Godown was fixed at Rs,800 per Marla and (3) Sheikh Maltoon Township, Mardan is also located in the vicinity and on the G. T. Mardan-Nowshera Road lying in series one after the other and is a commercial property. Same is position with regard to the observation made by the learned Judge in Chambers that the spirit of section 23 of the Act is tentamount to mandating the Collector to consider the potential value and future prospects of the land under acquisition, in addition to one year average. We further find that the learned Judge in Chambers had come to the right conclusion that the respondent-objectors "....have successfully extablished that there was an upward trend in the,price of lands. The adjacent land for construction of ood rain odown was acquired at the rate of Rs,800 per Marla. In these circumstances, the learned Senior Civil Judge/Referee Judge has rightly enhanced the rate to Rs,800 per Marla." (Underlining is for emphasis).

6. No other point was urged.

7. Before parting with this judgment, it may be noticed that these appeals were beyond time by 15 days each and that no ground for condoning the delay has been raised in the unnumbered applications in these appeals. The assertion therein that the resolution of the question about period of limitation of 60-days by this Court only in February 1999, is of little help to the appellants who filed these appeals on 8-3-1999 against the impugned judgments and decrees of High Court dated 19-10-1998. As the appeals are being dismissed on merits, there is no need for dismissing the same as barred by time. We order accordingly. No costs.