Sajjad Khan and others Vs Government of KPK

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

1.W.P No. 835-M/2024 (Sajjad Khan and others vs. Government of Khyber Pakhtunkhwa through Secretary Works and Services, Peshawar and others)

2.W.P No. 631-M/2025 (Mst. Bakht-e-Raja (late) through LRs vs. Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar and other)

3.W.P No. 632-M/2025 (Aziz-ur-Rehman vs. Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar and other)

Present: M/S Muhammad Zahir Khan and Khurshid Ali (Walikhail), Advocates for the petitioners.

Mr. Kamal Khan, Asst:A.G for the respondents.

Date of hearing: 04.07.2025

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- This common judgment shall decide this and the connected W.P No. 631-M2025 titled ‘Mst. Bakht-e-Raja (late) through LRs vs. Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar and other’ and W.P No. 632-M/2025 titled ‘Aziz-ur- Rehman vs. Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar and other’ as in all these cases common questions of law and facts are involved.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

2.Facts of these cases are that the Government of Khyber Pakhtunkhwa through Project Directorate Provincial Expressways, Pakhtunkhwa Highways Authority, Peshawar has expressed the need of acquiring land for “Construction of Swat Expressway Phase-II” in different Mouzas (Parrai, Zarakhela and Barikot). For the purposes, it has issued Notifications u/s. 4 of the Land Acquisition Act, 1894 (“the Act”) respectively on 17.02.2022, 19.01.2022 and 03.03.2022. Thereafter, the proceedings were culminated towards the announcement of the formal Awards on 31.01.2023, whereby land measuring 247- Kanal 19-Marlas in Mouza Parrai, 199-Kanal 05- Marlas in Mouza Zarakhela and 162-Kanal 14-Marlas in Mouza Barikot was acquired and market value of the acquired land was fixed on the basis of valuation table / one-year average. The quantum of compensation as fixed in the Awards was objected to by the petitioners / landowners in terms of section 18 of the Act before the Collector, Swat. However, their objections have been held to be time-barred and were ordered to be dismissed by the Collector vide orders respectively passed on 11.03.2024, 19.02.2024 and 01.04.2024. Feeling aggrieved there-from, petitioners have preferred their respective appeals before the Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Commissioner, Malakand Division but without any success and were dismissed vide the impugned orders dated 03.10.2024 and 20.03.2025. Now petitioners are seeking indulgence of this court in the matter through these particular Writ Petitions.

3.Heard and record perused.

4.In matters of acquisition of property by the State for public purpose, the governing law1 on the subject derives its source or validity from Article 24 of the Constitution of the Islamic Republic of Pakistan, 1973.

This ultimate legal principle as enshrined in Art. 24 inter alia provides that (i) no person should be compulsorily deprived of his property save in accordance with law, and that (ii) no property shall be compulsorily acquired or taken possession of save for a public purpose; and save by the authority of law which provides for compensation thereof and either fixes the amount of compensation or specifies the principles on and the manner in which

compensation is to be determined and given. This particular constitutional dimension of the matter specifically requiring a dire need of devising a structured mode of fixation of due compensation based The Land Acquisition Act, 1894.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

upon potential value of the acquired land has been very aptly taken note of and identified by the Supreme Court of Pakistan in the case of ‘Federal Government of Pakistan v. Zakia Begum and others’2 in the following manner;

“11. The law of acquisition is confiscatory in nature and easily deprives an individual of their property and all rights attached to it. The Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) gives every citizen the right to acquire, hold and dispose of property in every part of Pakistan under Article 23. Property has been interpreted to mean and include a right of proprietorship and includes every possible right or interest abstract or concrete. It includes the right to own, possess and enjoy the property (Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44). The right to own property being a fundamental right is inclusive of the right to possession, right of control and the right to derive income from the property.

Accordingly, the right to own property under Article 23 of the Constitution means the right to own economically productive property associated with agriculture, commerce, industry and business. Hence, it is a source of livelihood and provides economic security to a person. This goes to the underlying right to dignity of an individual and their home, as prescribed in Article 14 of the Constitution. Article 24 of the Constitution protects the right to own property such that no person can be deprived of his property save in accordance with law under Article 24. The exception

PLD 2023 SC 277.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

to this fundamental right as per Article 24 is compulsory acquisition for public purpose, which means that the State can acquire private property for public purpose under the authority of law, which provides for compensation and either fixes the compensation or provides for a mechanism to fix compensation. The Constitution, therefore, mandates that if there is any acquisition by the State, it will be under a Statute, which provides for due process and compensation. So the Constitution has ensured that if acquisition is necessary it comes at a cost, which is compensation. The right to compensation under the authority of a law has a constitutional underpinning that is the protection given to the right to own property. In the context of acquisition it means that a person who owns property has to be compensated on account of being deprived of their property. When a person is deprived of their right to own property, even if in accordance with law, they are deprived of their right to control, possess and earn from that property. And this deprivation is what must be compensated.”

[Emphasis supplied]

In Para-18 of the aforesaid judgment, it was further ruled;

“18. Ideally, there should be guidelines to calculate this value, however, since the efforts of the government have been to undervalue the land, no real effort has gone into devising a scheme to calculate potential value over the years. This is why there is so much litigation on just Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

this issue. Under the circumstances, there is a dire need to legislate on the issue and to devise a methodology to calculate potential value and market value so that it is neither arbitrary nor left to the whims of the Collector. This should be a priority for the government as acquisition cannot be at the expense of the financial loss of a landowner. Where there is acquisition for public purpose, the Act mandates that a fair value is prescribed based on the market value and the potential value of the land and the cases of this Court give sufficient guidance on calculating market value and potential value, hence, there appears to be no justification to continue with archaic concepts whilst valuing the land. In these cases, market value and potential value has been assessed at Rs.30,000/- per kanal based on the willing buyer, willing seller formula as well as on the available amenities such as transport, electricity, urban development and industrialization, which shows there is potential for the area to be fully developed. This is based on the evidence and calculation of future prospects. Unfortunately, a great amount of time was consumed for the land owners to get the worth of their land all of which could have been avoided, had the value been properly assessed.”

[Emphasis supplied]

5.Having underscored the constitutional command and requirement of paying appropriate compensation for compulsory acquisition of property, the provisions of Section 18 of the Act dealing with filing of objections to the Award within a prescribed period of Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

limitation are also to be taken and construed in line with the ultimate legal principle. These stipulations of the Act as contained in Section 18 lay down a timeframe in terms that (i) if an interested person was present or duly represented before the Collector at the time of passing the Award, he has to file such Reference within six weeks from the date of the Award

(ii)whereas, in all other cases, the Reference must be filed within six weeks from the date of receipt of notice under Section 12(2) of the Act, or (iii) within six months from the date of the Award in cases where no such notice is served, whichever period shall first expire. As the apex court has ruled in the Zakia Begum supra that provisions of the Act dealing with compulsory acquisition of land are confiscatory in nature, therefore, while interpreting the text of Section 18 and limitation period provided therein for questioning the Award are to be interpreted in a manner that command of the Constitution providing for fixation of due compensation are not compromised and are rather fully implemented. All technical hurdles coming across are to be dealt with in a manner by putting maximum effort so that fundamental guarantees of the interested persons specified in Art. 4, 9, 10-A, 14, 23, 24 and 25 of the Constitution are not compromised at all.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

6.With this very approach towards the matter, in the first place it has been noted that in all these matters, the petitioners who claimed ownership and interest in the acquired land have not participated in the acquisition proceedings. Their stance is that they were neither present at the time of passing of the Awards in question nor were they represented through any agent or counsel. More importantly, it has also not been shown by the respondents that any notice as contemplated under the provisions of Section 12(2) of the Act was ever issued or served upon the petitioners.

In this very context, it would be relevant to mention here that the obligation under Section 12(2) is mandatory, which requires the Collector to give immediate notice of the Award to all persons interested who were not present or represented at the time the Award was made. The purpose of this notice is to inform the interested parties of the making of the Award so that they may, if aggrieved, exercise their right by way of filing a Reference under Section 18 of the Act. Without such notice, a person unaware of the Award cannot be expected to seek redress within the prescribed period of limitation. Period of limitation for filing a Reference under Section 18(2)(b) is either six weeks from receipt of the notice under Section 12(2), Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

or six months from the date of Award, whichever expires first. However, the initial six weeks period begins to run only upon the actual receipt of the notice under Section 12(2). In absence of such service, the limitation period cannot be deemed to have commenced under the said clause. Mere passing of the Award and taking of possession does not absolve the Collector from the statutory duty to inform interested parties. It is also relevant to note that the References in all these cases appear to have been filed shortly after the petitioners have acquired knowledge of the Awards at the time of receipt of compensation amount under protest. So, their right to question the quantum of compensation fixed in the Award cannot be taken away in these circumstances on the technical plea of limitation particularly when they had not been served with any notice as contemplated in section 12 of the Act.

7.Secondly, during the course of arguments, learned counsel for petitioners has also produced copy of some official correspondence in the form of letter No. 6241/201/Barikot/Acq/DC(S) dated 22.03.2024, whereby the Collector / Deputy Commissioner, Swat has referred the Reference (objections filed by some other landowners namely Niaz Muhamamd Khan and 39 others) to the learned Referee Judge for disposal.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

He has also produced copies of two other References sent on the basis of written objections filed by certain landowners, which show that objections have been filed by various other persons and have been entertained by the Collector and have then forwarded to the learned Referee Judge for decision in accordance with law, which are now pending before the said court.

It is these petitioners before this court who have been discriminated against and treated differently by the Collector on the plea of limitation. The pendency of various other References (filed within time) against the same Award before the learned Referee Judge could also be one of the relevant considerations to refer the objections in hand to the Referee Judge for decision on merits instead. While doing that, it is noted that in matters of ordinary appeals and petitions, the superior courts have consistently ruled that where a judgment or order is challenged by various persons through separate and independent appeals / petitions etc.; some of which are filed within the prescribed period of limitation while others are time barred, then in that situation all such appeals or petitions are to be entertained and are to be decided on merits including those which have been rendered time-barred. The rationale behind this approach is to avoid conflicting Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

decisions on the same issue and to promote consistency and fairness3. By way of analogy, the aforesaid principle could well be applied to the proceedings in hand where objections by most of the landowners have been filed within the prescribed period of limitation and they have been entertained by the Collector and have been sent as References to the competent court of law for decision on merit. In such an eventuality, the present objections forming subject matter of this judgment are also to be entertained and are to be sent to the learned Referee Court for decision in accordance with law upon merits of the case.

8.Finally, while holding that objections of the petitioners could not be left out of consideration on the plea of limitation alone, this court is also fortified by the celebrated principle laid down by the superior courts in matters relating to land acquisition, whereby it has been consistently ruled that if upon a Reference filed by some of the landowners compensation amount is enhanced, then same enhanced compensation is to be paid to all such interested persons who did not even ‘FBR through Chairman, Islamabad and others vs. Messrs Wazir Ali and Company and others’ 2020 SCMR 959, ‘Muhammad Ashraf and others vs. U.B.L. and others’ 2019 SCMR 1004 and ‘Mehreen Zaibun Nisa vs. Land Commissioner, Multan and others’ PLD 1975 SC 397.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

object to the Award4. Keeping that principle in mind, dismissal of present objections filed by petitioners / landowners on the point of limitation would be inconsequential and futile, when other objections filed by similarly placed landowners have been entertained by the Collector and are already sent to Referee Judge for decision on merit. In case compensation amount is enhanced in the pending Reference(s), same compensation would be payable to the petitioners as well. But by disallowing them to agitate their objections in the manner as has been done by the Collector, petitioners would be deprived of participation in the process of computation of due compensation etc. which is violative of Art. 10-A of the Constitution of Pakistan. Thus, in such circumstances petitioners cannot be treated differently even if their resort to the Collector was apparently found belated and time-barred. Their objections are nonetheless to be entertained as References, and are to be decided on merit like all others.

9.Resultantly, the Writ Petitions in hand are allowed, as a result whereof the impugned orders are set-aside and the References filed by the petitioners ‘Saddaqat Ali Khan through L.Rs. and others vs. Collector Land Acquisition and others’ PLD 2010 SC 878.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

shall be deemed pending before the Collector for onward transmission to the learned Referee Court for decision in accordance with law and on its own merits.

Announced Dt: 04.07.2025 Sd/-

JUDGE

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah