The Director Higher Education Colleges KPK Vs Syed Muhammad Khan & others

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) R.F.A No. 44-M/2024

The Director Higher Education Colleges, Khyber Pakhtunkhwa, Peshawar & others ................. (Appellants)

VERSUS

Syed Muhammad Khan and one another ...... (Respondents) Present: Mr. Naeem Khan, Asst: A.G for the appellants.

Mr. Akbar Khan Kohistani, Advocate for the respondents.

Date of hearing: 22.09.2025

JUDGMENT

SALAH-UD-DIN, J.- Instant regular first appeal u/s.54 of the Land Acquisition Act, 1894, (“the Act of 1894”) has been filed by the appellants, the Director, Higher Education Colleges, Khyber Pakhtunkhwa, Peshawar, and others, against the judgment, dated 14.03.2024, of learned Referee Court/Additional District Judge-III, Dir Upper, vide which, the market value of the acquired land as was fixed in the final award as Rs.703,792/- was enhanced to Rs.3,000,000/- per Kanal.

2.Arguments heard and record gone through with the able assistance of learned Assistant A.G for the appellants and learned counsel for the respondents.

3.Perusal of record would manifest that the Government of Khyber Pakhtunkhwa through the Bakht Sher Ali Khan/SSS (S.B.) Hon”ble Mr. Justice Salah-ud-Din

Director, Higher Education (Colleges) of the Khyber Pakhtunkhwa, Peshawar, vide letter No.CPO(HE)/SO/ 2-125/2014-15/637, dated 29.07.2015, approached to the District Collector, Peshawar, as to acquire a piece of land for the establishment of “Government Girls Degree College, Barawal Bandi, District Dir Upper”. In this connection, a suitable site was identified and selected by the acquiring department for the aforesaid purpose and an area total measuring 33 Kanal was agreed to be acquired, which was notified under Section 4 of the Act of 1894 vide Notification bearing Endst: No. 13323-30/ DC/LAB, dated 22.09.2016, followed by declarations u/ss. 6 & 7 bearing Endst: No.9425/4/3-Dir Upper/Reve:/Vol:VII and No.9460/4/3-DIR Upper/Rev:/Vol:VII, dated 27.07.2016, finally a formal Award bearing No.16229-37/DC/Rev (GGDC Barawal), dated 12.07.2018, was passed by the District Collector/Deputy Commissioner, Dir Upper.

As such, a piece of land measuring 33 Kanal situated in the locality of Revenue Estate Nawra of Tehsil Barawal Bandi, District Dir Upper, was acquired and market value of the acquired land was fixed as Rs. 703,792/- per Kanal coupled with 15% compulsory acquisition charges and the cost of fruits bearing trees worked out by the Director Agriculture, Dir Upper.

Bakht Sher Ali Khan/SSS (S.B.) Hon”ble Mr. Justice Salah-ud-Din

The details of payments are reproduced for ease reference as follows:

S# Nature of land Total area of acquired land Amount 1 Agriculture/Abi 33 Kanal Rs.2,322,5136.00 2 15% compulsory acquisition charges Rs.3,483,770.00 Total Rs.26,708,906.00 3 5% District Council Fee and Stamp Duty Rs.1,335,445.00 Total Rs.28,044,351.00 Cost of fruit bearing trees worked out by 4 Rs.4,950,100.00 District Director Agriculture, Dir Upper. Grand Total Rs.32,994,451.00

4.The record further divulges that the quantum of compensation as fixed in the Award was objected to by the respondents/landowners and in result of which, the respondents filed the reference proceedings u/s. 18 of the Act of 1894 before the learned Referee Court. In their objections, the respondents/landowners had claimed that the acquired land forming subject matter of the Award is situated adjacent to the main Barawal Road of Dir Upper, as such, the area adjacent to the road side is commercial in nature and partially irrigated agriculture land;

therefore, they should have been compensated with the rate of Rs. 250,000/- per Marla alongwith compulsory charges and compound interest. During the course of trial, respondent No.2, Maskeen Khan, appeared as PW1 and produced three other private witnesses as PW2 to PW4. On the other hand, the appellants/ Acquiring Department produced only one official witness as DW1, namely, Seraj-ud-Din, a record keeper/junior Bakht Sher Ali Khan/SSS (S.B.) Hon”ble Mr. Justice Salah-ud-Din

Clerk of the office of Deputy Commissioner, Dir Upper.

During the course of proceedings, a local commission was also appointed by the Referee Court who was examined as CW1.

5.Upon conclusion of required proceedings, the reference/objections petition of the respondents/ landowners was accepted by the learned Referee Court/ Additional District Judge-III, Dir Upper, vide judgment dated 14.03.2024, whereby they were held entitled to the following relief;

“Consequent to discussion and determination on issues hereinabove, the referrers have successfully established their claims to the extent of enhancement of fair compensation.

The “impugned rate” as fixed by “The Award” is hereby set aside and the reference petition in hand stands decreed with costs.

The fair compensation for acquisition of “acquired property” is worked out as:

Fair compensation for Rs.150,000/- (one lac and “acquired property”. fifty thousand per Marla. 15% of the fair Compulsory

2.compensation of “acquired Acquisition Charges.

property” on enhanced rate.

Likewise, referrers are also entitled to Statutory benefits.”

6.Aggrieved whereof, the appellants/the Govt of Khyber Pakhtunkhwa, approached this Court for seeking appropriate reliefs through preferring instant appeal u/s.18 of the Act of 1894.

Bakht Sher Ali Khan/SSS (S.B.) Hon”ble Mr. Justice Salah-ud-Din

7.The moot question before the Court involved in the present lis is the determination of fair market value of the acquired land, for which, the Court has to first see the suitability, accessibility and feasibility of the location with its future potentialities. Admittedly, the acquired land is selected by the acquiring department for the establishment of Government Girls Degree College, Barawal Banda, Dir Upper, after making thorough assessment, checked its suitability, feasibility and location wise accessibility with future potentiality for the subject purpose as the acquired land is situated adjacent to the main Barawal Banda road which is being commercial in nature. The respondents/landowners have relied upon their oral testimonies as well as documentary evidence in shape of certain private sale-deeds produced by them during the trial as settlement proceedings of land have not been carried out in District Dir Upper till date and it is affirmed that there is no revenue record of the lands yet maintained by the revenue department, whereas, the settlement of lands is yet to be carried out in the district. Furthermore, there is also no sale/purchase of lands made through registered deeds and often, the locals make transactions of sale/purchase via unregistered private deeds and very less, through registered deeds;

therefore, determining the actual fair market value of the Bakht Sher Ali Khan/SSS (S.B.) Hon”ble Mr. Justice Salah-ud-Din

acquired land is very difficult and not an easy task to be carried out, however, a special committee was convened by the District Collector for the above purpose, which consist the following members:-

(1)Assistant Commissioner (Head Quarter) Dir Upper.

(2)Principal govt: Degree College Dir Upper.

(3)Asstt: Professor Govt: Degree College Dir Upper.

(4)District Officer (F&P) Dir Upper.

(5)SDO C&W Deptt: Dir Upper.

(6)Tehsildar Barawal Bandi.

(7)Representative of LG&RDD Dir Upper.

(8)Tehsil Nazim Barawal bandi.

(9)Tehsil Naib-Nazim Barawal Bandi.

(10)President Workder Councilor Village Council Sundrawal.

(11)Nazir Village Council Sundrawal.

(12)Naib Nazim Village Council Sundrawal.

8.The committee of aforesaid persons after making through inquiry and deliberations, the representatives of the government have proposed the market value of acquired land as Rs.1,200,000/- to 1,300,000/- per Kanal, whereas, the public representatives being members of the said committee have proposed the market value of the acquired land as Rs.1,000,000/- per Marla of the area situated adjacent to the main road being commercial in nature and Rs.2,000,000/- to Rs.3,000,000/- per Kanal for the remaining area being agriculture irrigable land, vide minutes of the meeting held on 28.09.2017 (Ex:DW1/8).

Apart from this, the private sale-deeds produced by the Bakht Sher Ali Khan/SSS (S.B.) Hon”ble Mr. Justice Salah-ud-Din

respondent No.1 in his statement recorded as PW1 as well as the documents referred to in the local commissioner report were perused, which reflects different rates as a sale-deed, dated 07.10.2016, mentions the sale amount of one Kanal land as Rs.3,000,000/- and the other sale-deeds having mention the rates upto Rs.5,000,000/- per Kanal.

9.Other than the above, Mian Haider Ali Shah, Advocate was appointed as a local commissioner by the learned referee Court for proper and fair determination of potential market value of the acquired land, who inspected the area in the presence of respondent No.2, representatives of the appellants, Patwari-Halqa and many other persons were present there on the spot. The local commissioner thoroughly inquired about assessing fair potential value of the acquired land, recorded statements of the parties as well as the witnesses willing to record their testimonies and took pictures of the acquired land with surroundings. Who, assessed the fair potential market value of the acquired land as Rs.3,000,000/- (rupees thirty lacs) per Kanal, which is not below the said ratio of price at any cost, substantiated it through mentioning the potential market values of other similar lands via different sale-deeds. In support whereof, the local commissioner was examined before the Court as Bakht Sher Ali Khan/SSS (S.B.) Hon”ble Mr. Justice Salah-ud-Din

CW1, who exhibited his report in his Court statement as CW1/2 and he was thoroughly cross-examined by the appellants but nothing was brought contrary to the above stated potential market value of the acquired land.

Besides, the appellants also filed objections against the report (Ex:CW2/3) of local commissioner but were rejected being not based on plausible and logical reasons.

10.Keeping in view the close proximity of the acquired land, which is situated adjacent to the main road of Barawal Bandi in the heart of Tehsil Headquarter, so, it can be safely concluded that potentiality of the acquired land and its future prospect is quite bright. In such a situation, learned Judge of Referee Court has rightly considered the private sale deeds coupled with placing reliance on the report of local commissioner in relation to enhancement of the potential market value of the acquired land. The Hon’ble Supreme Court of Pakistan has dilated upon the constitutional dimension of the award of compensation in land acquisition matters has held that 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 Bakht Sher Ali Khan/SSS (S.B.) Hon”ble Mr. Justice Salah-ud-Din

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. 1

11.Thus, the learned Referee Court through the impugned judgment/decree has also properly appreciated the law on subject as well as the evidence available on record in its true perspective and by doing so, it has rightly enhanced compensation of the acquired land from Rs.703,792/- to Rs.3,000,000/- per Kanal alongwith compulsory acquisition charges and other statutory benefits.

PLD 2023 SC 77, ‘Federal Govt of Pakistan through Ministry of Defence Rawalpindi and others v/s Mst. Zakia Begum and others’.

Bakht Sher Ali Khan/SSS (S.B.) Hon”ble Mr. Justice Salah-ud-Din

12.During the course of arguments, learned counsel representing the respondents/landowners has argued that though the learned Referee Court has enhanced compensation of the acquired land and also granted statutory benefits but could not clarify request of the respondents with regard to 6% interest under the provisions of Section 34 of the Act of 1894. Such request was resisted by the learned Asst:A.G, who stated that same has rightly been left out of consideration. It is by now settled that entitlement of landowner to such interest is a statutory right duly recognized by the provisions of Section 34 of the Act of 1894 and same cannot be denied.

In numerous cases, the Hon’ble apex Court has interpreted and dilated upon the provisions of Section 34 of the Act of 1894 and has consistently held that these provisions impose penal consequences for failure to pay or deposit compensation prior to or at the time of taking possession2.

13.Needless to mention that the learned Referee Court has not clarified the statutory benefits by not awarding the interest @ 6% under section 34 of the Act of 1894 to the respondents/ landowners and thereby it has wrongly deprived them from their statutory right.

2015 SCMR 1440, Mst. Nasreen Zahra and others v/s Multan Development Authority and others and PLD 2016 SC 64, Sheikh Muhammad Ilyas Ahmad v/s Pakistan and others.

Bakht Sher Ali Khan/SSS (S.B.) Hon”ble Mr. Justice Salah-ud-Din

Thus, while relying upon the case-law referred to above, the respondents/landowners are also held entitled to receive interest @ 6% from the date of taking over possession of the acquired land till full payment of compensation including the enhanced value of the acquired land.

14.In view of what has been discussed above, learned Asstt: A.G for the appellants has not been able to pinpoint any illegality, material irregularity, misreading, non-reading of evidence and misapplication of law on the subject in the impugned judgment and decree, which is maintained, however, with the above modification as observed in para 14 above.

15.Resultantly, instant regular first appeal being bereft of merits, stands dismissed.

Announced Dt: 22.09.2025 Sd/-

JUDGE

Bakht Sher Ali Khan/SSS (S.B.) Hon”ble Mr. Justice Salah-ud-Din