Liaqat Ali khan Vs District Collector/District Revenue Officer Buner & others.

I

.Tu.[qment Sfieet

PESITAWAR HIGH COURT, MTNGORA BENCH (DAR-UL-QAZA),

SWAT.

JUDICIAL DEPARTMENT

R.F.A No.78-IW2012.

JUDGMENT

Date of hearing... 09/02/20 I 8... ... .. Appellant (Liaqat Ali Khan) By Mr.Wilayat Ali Khan, Advocate............ Respondents (District Collector/District Revenue Officer, Buner) By Mr.Rafique Ahmad Asstt: A.G......

MUHAMMAD NASIR MAIIEQQZ.T Through this single judgment, I propose to dispose of titled RFA as well as;

1)RFA No.79-IW20l2 tit\ed Noor Habib & others Vs District Collector District Revenue Officer, Buner & others.

2)RFA No.81-M/2012 titled Govt: of Khyber Pakhtun Khwa through District Officer, (R&E) and others Vs Liaqat Ali Khan & others.

3)RFA No.82-Ml20l2 Gott: of Khyber Pakhtun Khwa through District Officer, (R&E) and others Vs Noor Habib and others.

4)RFA No.83-W2012 titled Govt: of Khyber Pakhtun Khwa through District Officer, (R&E) and others Vs Mst.Basreen.

% 5) RFA No.9-M/2015 titled Govt: of KPK through District Officer (R&E) &. others Vs. Bacha Said.

as common questions of law and facts are involved in all these appeals.

2.Appellants/land owners in the instant appeal have impugned judgment & decree dated 25.09.2012 passed by learned Additional District Judge-IVlzah Zllla QazilJudge Referee Court, District Buner in three connected objection petitions No.4/4, 714 and 814 of 2004 whereby on the acceptance of their objection petitions, the compensation of acquired land was fixed at Rs.224190.48/- per kanal in addition to 15 % compulsory acqu isition charges.

3.Brief facts as per the instant appeals are that vide award announced on 10.09.2004, Collector District Buner acquired land comprising different khasra numbers 4084, 3236, 3232, 3231, 4085, 3229, 3228, 3327, 3330, 3328 and 3328 measuring 81 kanals & 14 and a half marla for the construction of Police Lines at Daggar, Buner. The rate per kanal was fixed at Rs.107513.81/- kanal. Objectors/land owners submitted their respective objection petitions, which were forwarded to the leamed Referee Judge who seized off the matter framed 8

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issues out of the contentions raised in the objection petition & reply ofthe official respondents.

ISSUES.

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4.Since different land owners have separately filed their objections to the award, therefore, m addition to their own statements they have produced their own witnesses in support of their contentions but as this judgment is being announced in the instant R.F.A, therefore, the details of witnesses in q this case are mentioned. However, all the land owners are unanimous on the point that compensation for the acquired land fixed in the award is much below the actual market value &

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requested for enhancement to Rs.14,00,000/- per kanal.

5.Patwari Halqa appeared as P.W.l who produced sketch of the suit property as well as one year average details of revenue record for the year 200312004 as Ex.P.W.1/l to Ex.P.W.1/3. In his cross-examination he produced I year average for such land as Ex.P.W.l/D-1. P.W.2 Office Qanoongo, P.W.3 Clerk Land Acquisition and objector appeared as P.W.4.

Objector/land owner was cross-examined who confirmed the contentions as raised in his objection petition & prayed for enhancement of compensation up to Rs.205817.381- per kanal and also relied on Ex.P.W.l/l wherein rate per kanal is Rs.250817.38.

His statement was supported by the other P.Ws. These witnesses were cross-examined from different aspects but they did not accept the contentions of acquiring department.

6.On behalfofthe official respondents, clerk of lkl the office of Deputy Commissioner appeared as D.W.l & D.W.2. D.W. I produced record of the proceedings of acquisition as Ex.D.W.l/l to Ex.D.W.l/10, similarly D.W.2 also supported the stand of Collector. Previously too the matter came up

to this court and vide order dated 27.06.2012 this court remanded the case back to the learned Referee Judge with directions to appoint a local commission for ascertaining the market value of acquired property keeping in view the future potentiality and market value of the surrounding similar nature property

7.In compliance thereof, during the proceedings, learned Referee Judge appointed one Mr.Sher Muhammad Khan, Advocate, as local commission with the direction to visit the spot and prepare report to ascertain the market value and potential value ofthe suit property. He prepared hrs report and ascertained the market value at Rs.1310761/- per kanal after relying on market value of mutations No.28l3 attested on 25.01.2005, 3078 attested on 22.03.2006, 4l5l attested on 21.09.2011,3809 attesred on 26.05.2010, and 3007 attested on 22.1 1.2005 regarding surrounding khasra numbers.. His statement was recorded as C.W.l and cross-examined by both the parties.

8.Leamed appellate court has fixed Rs.223 190.48 per kanal as market value of the suit

property in addition to l5yo compulsory acquisition charges through his impugned order. Aggrieved against the same, objectors/land owners and the govemment have also filed separate connected appeals which are being decided through this order.

I have heard arguments of the learned counsel for the appellants & learned A.A.G. for the official respondents who have strongly resisted the arguments raised by the appellants.

9.In order to ascertain market value of any property its proximity to the surrounding area is the best possible touch stone and only then the fixation of fair compensation could be properly determined.

The suit property is being acquired for construction of police lines which is stated to be yards away and not kilometers away from the judicial complex of District Buner, besides other ofhces of the Govemment departments.

10.Respondents could not deny the suitability of the area for construction of Police Lines and so its potential value is much higher than any other area in the close proximity. It may be mentioned that in R.F.As No.32-1W2017 to 35-M/2017, R.F.A No.76-

Ml20l7 and R.F.A No.l4-lW20l7 this court on 06.02.2017 has though fixed Rs.14,00,000/- per kanal as market value of the property acquired for construction of the same police lines, Buner but in those cases some additional land was acquired vide Award No. 1 of 201 3 and so market value was fixed according to the prevailing rate in the year 2013. ln these cases, the award has been announced on 10.09.2004 which is about 9 years earlier and no doubt that the instant award is also issued for the construction of police lines, Buner but this is earlier to the said Award of 2013 so the rate prevailing in the year 2004 shall be considered as it is the requirement of law under section 23 of the Land Acquisition Act, 1894.

ll. The leamed Referee Judge has relied on the market value fixed in mutations No.2505 attested on 25.06.2003, 2493 attested on 15.08,.2003, 2494, 2507 and 2508 attested on 15.08.2003. Though the leamed Referee Judge has referred to Ex.P.W.l/l as a deciding factor for determination of market value of the suit property but failed to note that the market value assessed in Ex.P.W.1/l is fixed at

Rs.12540.86 per marla and Rs.250817.38 per kanal, which is quite different from the rate fixed and no explanation for not relying on this market value has been given in the impugned judgment. A court has either to accept a document as whole or reject a document as a whole, therefore, accepting the average as fixed in the above mentioned mutations by the officials of Revenue Department tn Ex.P.W.l/1, I feel that the leamed Referee Judge has committed material irregularity and illegality ln fixing Rs.223190.48 which requires to be interfered with in the instant appeals. Whereas the market value fixed by the local commission is exaggerated because he has relied on mutations attested in the year 2005-2006 which are much later than the instant award so this could not be considered. The findings in the impugned judgment on issues No.5 & 6 are defective and requires to be interfered with.

12.Moreover, Hon'ble Supreme Court of 214 Pakistan in a number of judgrnents considered the inflationary trends in the society while fixing compensation of acquired lands. In this respect reliance is placed on Sardar Muhammad Ashraf

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deceased Vs. Govt: of Khyber Pakhtunkhwa reported as (2011 SCMR 1244) and Govt: of Pakistan Ys. Ghulam Murtaza (2016 SCMR ll4l) para No.9 is reproduced as under:- "Numerous judgmenls and dictas given and laid down by this court with binding and laying guiding principles on the subjecl issae have unfortunately been conveniently ignored by the Collector as he remained stuck to lhe one yeu average withoul taking care of present and future potentialily of lhe land acquired. Il has heen repealedly laid down that being a compulsory acquisilion of land for public purposes, the owners of the land are deprived of its utility while at the same time the Collector Acquisition simply impose their ownqinion ordinarily based on one year average which is not a correcl approach lo the malter, as has been laid down by lhis courl".

In another judgment titled Province of Punjab through LAC & another Vs. Begum Aziza reported as (2014 SCMR 75) relevant para is reproduced as under:-

"The market value is normally laken up as one existing on the date of noliJication ander section 4 (l) of the Land Acquisition Acl under the principle of willing buyer and willing seller while the potential value was the vslue to which similar lands could be put to any use in future. Thus in determining the quantum of compensation the exercise may not be reslricted to the lime of the aforesaid noti/ication but its futare value may be taken into accounl".

13.Having considered all the evidence on record and the material placed on file I would, therefore,

allow the instant appeal as well as R.F.A No.79- W2012 and fix the market value at Rs.250817.38 per kanal in addition to l5o/o compulsory acquisition charges modified to the said extenUset aside the judgment and decree of learned Referee Judge, while RFA No.81-M.2012, R.F.A No.82-IW2012, R.F.A No.83-W2012 and R.F.A No.9-lW20l5 are dismissed.

Announced.

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JU6hE Dt.09/02/2018.

HON'BLE MR.JUSTICE MMAD NASIR MAIIFOOZ.

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