D.G. PMDA KP VS Qazi Badar-ul-Wahab

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JI-IDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(J utl ic iu I D ep a rtme n t)

R.F.A No.83-P/2018

Director General Provinciul Disusler Management Aulhority (PMDA) I{hyber Pokhrunkhwu, Peshawar & otlters,..,... .(uppellunts) lrs

Qazi Barlu r- ul- lVu h a b & o|hers,..,,..., (respo n len ts) Present Muhammad Solnil, Asst:A.G Jbr the appeLlunis.

Muhammod Tariq Khan You.rafzai, Advocate for the respondents.

Date of hearing: 06.09.2019

JUDGMENT

WIOAR AHMAD. J.- Through the instar,t Regular !'irst Appeal, appellants have called in cluestion judgment dated 09,01.2018 of leamed Judge Refelce Court/Additional District JudgeJI, Nowshera vide which the objection petition filed by the obj ectorsirespondents under section l8 olthe Land Acquisition Act, 1894 (hereinafter referred called as the Acquisition Act) rvas allowed to the effect that the amount of compensation rvas enhanced to Rs. 75,000/- per Marla along with 1502 cornpulsory acquisition charges and 6ok simple interest rate as well as compensation for the tube well amounting to Rs. 68,47000/-.

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) Land of the respondents measuring 56 Kanal 2 Marlas was acquired ftom Khasra bearing Nos. 1924, 190713/\ vide Award No. 2/2013 dated 06.09.2013 at the follorving rates:- Banjal Qadeerr at Rs. 5571/34 per Marla;

. Barani at Rs. 6658/41 per Marla;

lll. Ghair Mumkin at Rs. 21 8218 per Marla.

The respondents had not felt satisfied and filed an objection to the price fixed in the award befbre the Collector Land Acquisition, Nowshera.

The objectior.r petition was forwarded to the learned Judge Referee Court, Nowshera whereupon proper evidence was recorded. At the conclusion of proceedings in the reference, in which the respondents had clairned Rs. 300,000/- per Marla as the proper price of the acquired land, the learned Judge Referee Court enhanced the acquisition amount to Rs. 15000/- per Marla for Banjar Qadeem and Barani type of land and Rs. 5000/- per Marla for Ghair Mumkin type of land.

3.Both the parties felt aggrieved from judgment dated 03.06.2014 of the leamed Judge Rel-eree Court, Nowshera and irnpugned the sanre through R.F,A No. 374-Pl20l4 and R.F.A No. 315-P/2014 before this Court. Both the R.F.As tnN nl,EMA lutTlCE tvtQAn/llltlAh

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a were allowed to the effect that the judgment of the leamed Referee Court dated 03.06.2014 was set aside and the case was remanded to the learned Court, with the following directions:- "To oppoitrl t senior counsel as Local Contmission to be accompanied with Potwari Halqa to contluct the proceedings ond submits its report lo the Referee Courl,"

4.The learned Referee Judge on receipt of the record resumed the proceedings and appointed Mr. Shaukat Ali Khan, Advocate Nowshera as local mmissior-r. The learned local commissioner in his report recommended enhancement of rate to Rs. 300,000/- per Marla. The commission repofi was however objected to and set aside by the learned Referee Court. The learned Court appointed Mr. Kifayat Ali Khan, Advocate (Late) as another local comrnission with the following directions:- i, "To visit the spol in tlre presence of the porlies;

ii, to ascerlain the markel value of lhe acquiretl land in view of the location potential value ond value of the odiacent area;

iii, to take snapshols and assessment of lhe lube well in the acquired land; and iv. to record statemenls of property deders and local people in lhis regartl".

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t The last appointed local cornnrission recommended enhancement of an'rount of conrpensation to Rs. 1,50,000/- per Marla. The learned Referee Judge thereafter enhanced the amount of con:pensation for the acquired land to Rs. 75,000/- per Malla which was impugned by the respondents/appellants through the instant appeal.

5.The learned A,A.G appearing on behalf of the appellants contended that no evidence was available rvith the leanred Refelee Coult which could have justified the enhancen:ent of arnount of cornpensation. He fur1her added that had the learned Referee Couft placed reliance on the report of cornmission, then the arnount suggested thelein rnay have been fixed as the rate of amount of cornpensation but the irnpugned judgment shows that sanre has not been fixed as arnount of compensation.

So, the reconrnrendations of local commission have neither been accepted nor rejected and there has been no other evidence on which reliarrce has been placed by the learned Referee Judge. He further submitted that the amoLrnt fixed in the award uray be restored by setting aside the.judgment impugned herein.

6.Learned counsel for the respondents submitted that the local corlrnission last appointed ts l) on nt.E Nk tusflcl:filQ^a ^ltnut,

o was not acceptable to the respondents and was in fact favorite of the appeilants. In this respect, he stated that before initiation of proceedings of comrnission, the respondents have raised an objection on his nornination and when their.

objection was turtred down by the learned Referee Court, they had even filed a revision petition before this Courl but when the report came, the respondents as usual raised a number of objections to the same.

He fllrther added that the respondents are being tired of the race for getting compensation and thelefore, ey even did not file an appeal against the judgment of the learned Referee Court, otherwise there was ample scope of further enhancement in the matter as the learned local commissiorr had recommended a sum of Rs. 1,50,000-/ per Marla while learned Referee Coun vide impugned judgment has just awarded Rs. 75,0001 per Marla.

1 I have heard arguments of leamed Assistant Advocate Genelal appearing on behalf of the appellants, counsel for the respondents and oerused the record.

8 During arguments, the question that was agitated at the bar was regarding reasonability and justification for enhancement of the compensation by (\ A) ON Rt.t: Nk JUSI lct: |IQAX lllnr,tl)

the learned Judge Referee Court. So, the rnairr issue for deterrrrination before Referee Court as rvell as this Court is the question mentioned above. The objectors in order Io rnake out a case for enhancement have produced n ine witnesses.

9.Statenrent of Patwari Halqa of the concerned Moza was recorded as PW- l who produced fard-jantabandi Zair Kar pertaining to the acquired Khasra numbers exhibited as Ex PW l/1.

He also produced Khasra Girdawri of the suit land for the period of Kharif 2010 to Kharif 2013 as Ex W l/2, He further produced Naqsha Tasverilsketch

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of the area where the suit land existed as well as

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Naqsha Tasverilsketch of the suit land as Ex PW l/3 i

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& Ex PW l/4. He further produced one year

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average from 08.12.2012 to 09.12.2013 as PW-l/ D-I. Muharir fiom the Office of Sub-Registrar, Nowshera was examined as PW-2 who produced two registered deeds bearing No. 248 attested on 02.08.2013 and 256 attested on 21.08.2013 as Ex PW 2ll & Ex PW 212 rcspectively. Record Keeper of Land Acquisition Office, Nowshera was exaulined as PW-3 who produced original record pertaining to award No. 2/2013 dated 06.09.2013 as Ex PW 3/l and had also ploduced record perlaining (r r) loiY tl.t nt& J u,vrtct: xlQaa A I tnr/tt

to minutes of private negotiation held on 27.02.2013 as Ex PW 312. AOK of Tehsil Office, Nowshera was examined as PW-4 who produced original record pertaining to mutation bearing No. 6078 attested on 25.10.2010 as Ex PW 4/l and had also produced other mutations as Ex PW 412 to Ex PW 4/5. Scribe of the deeds bearing No. I 949 dated 27 .08.20 13 and 1948 dated 27.08.2013 appeared as PW-5 who affirmed his signatures and stamp over tlle above said deeds. Another scribe of the deed bearing No. 1639 dated 04.08.2013 appeared as PW-6 who that the said deed was entered in his register at Serial No. 35 on the same date and was also signed by the parties and witnesses. Mr. Zahid Khan Advocate, District Courts, Nowshera appeared as PW-7 who had confirmed his signature and stamp oyer the sale deed bearing No. 1639 dated 04.08.2013. Statement of the objector/respondent No. I was recorded as PW-S who testified orally in support of his assertions and produced another wifiress namely Amjad Ali I(han as PW-9.

10.The appellants/respondents produced two witnesses. RW-l is the statement of Pervez representative of Director PDMA Office, Peshawar who produced Naqsha Tasviri of the suit land as Ex $D) |ION'BLE MA- tUAfrcE WQ,1R .4EM,1D

t RW-lil. One Wahid Aslam, Litigation Clerk in the Office of District Collebior, Nowshera appear.ed as RW-2 and stated that he relies on the statement of Record Keeper of Land Acquisition Office, Nowshera (PW-3) recorded earlier.

Il. One year average of the Moza Jalozai for the year 2013 was exhibited as Ex PW l/1. As per the said document, the average per Marla rate of Banjar Qadeem area cat-ne out to be Rs. 7,881.261-.

Three years average sale price of mutations in the said, Moza w.e.f. 08.12.2010 to 08.12.2013 came out to be Rs. 6,523.461- fot Banjar Qadeem type of area, The award seems to have been based on three years average sale price of the n.rutations in the said Moza.

It is well settled that the estimated/average price given in three years avercge is not conclusively determining factor for fixing the amount of compensation and that other factors and evidence brought on record has to be taken into account in the Iight of the relevant considerations provided for in section 23 of the Acquisition Act. ln this regard, reliance is p laced on the case ofProvince of Puniab h ollec r Bahawal ur Distric

Bahawalpur and oth.efs ys 9of. Abdul Maieed and others reporled as 1997 SCMR 1692, case ol lsR) oN Rt,LMR JL).\ncl fi'tQiR 4lltt,l)

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IIa ii Muham mad Ya qoo b and an other VS Collector Land Acq uisi tion/ Ad ition Den utv Co mmrss ioner. P eshawar repofied as 1997 SCMR 1670 and the case olMuzaffar K ha n and 3 oth e rs vs overn m ent of N. W.F.P throush Se cretary Education. Pesha wa r and 2 others reported as 2016 cLC 1867.

12 The objectors have brought on record the registered sale deeds Ex PW 2/1 andEx PW 2/2 on which they are placing reliance besides other evidence. Ex PW 2/2 reveals that an area of 5 Marlas in the same Moza has been sold for a sum of Rs. 800,0001 on 31.07.2013. Similarly, Ex PW 2/3 another sale deed dated 20.08.2013 in the same Moza shows that an area of l4 Marlas had been sold lor a consideration of Rs. 16,00,000i- through the registered deed. Likewise, copy of mutation Ex PW 4/l attested on 14.10.2010 in the same Moza shows that an area of I Kanal was sold in consideration of Rs. 14,00,000/-. Another copy of mutation Ex PW 412 in the same Moza shows that an area of 16 Marlas was sold lor consideration of Rs. 6,40,000/- on 15.04.2011. Copy of mutation Ex PW 413 inthe same Moza shows that an area of I Kanal was sold for consideration of Rs. I 2,00,000/- on 03.05.20 I I (s t,) tk)i"N-li^rt JullTlcL tflQA&Atltt,ltt

o Similar is the case of the documents Ex pW 414 and Ex PW 4/5. When such evidence is read with the report of local commission last appointed for spot inspection, it becomes quite clear that the market value of the land in dispute was much more than the one fixed by the District Collector, Nowshera while passing the award.

13.The leamed local commission has relied upon mutations No. 7672, ?671 & 6078 annexed with his l€poft as Annexure 'D' and has taken out the average price of Rs. 100,000/- per Marla as estimated sale price for the year 2012. As per exure 'D' of his report, he has estimated thc average sale price of I Marla land at Rs. 200,000/- existing in the year 2013 on the basis of the developmental projects and housing schemes etc in the vicinity and the statements of certain property dealers of the locality. In pursuance thereof he has recommended Rs. 1,50,000/- to be the average sale price in the year 2013. The process of acquisition started on 19.12.2012 by issuing of Section 4 of the Acguisition Act. The commission report was upheld by the learned Releree Court in the impugned judgment. The learned lower Court has even then adopted a cautious approach and has not fixed the lt ti) llJN t)l,Entn tu.\l'rct:. tvtQ) N ,i t,trt l)

il o amount of compensation at Rs. 1,50,000/- per Marla as suggested by the iearned local commission but fixed it at 50%o below the said rate at Rs. 75,000/- per Marla. tsesides the commission report, there were other evidence also in the shape of deeds and rnutations discussed above and the learned Judge Referee Court was fully justified in enhancing the amount of compensation to Rs. 75,000/- per Marla.

14.The site plan annexed by the local commission with his report as Annexure 'C' also shows that the property acquired by the respondents/ appellants had been possessing a great potential value. A look at the site plan reveals that the acquired property is situated on thc main Chirat Road surrounded by housing societies and buildings in which public offices have been housed. Potential value of the said road may well be judged tiom a glance at the saicl document. Potential value of the property was held to be a relevant consideration in determining the amount of compensation in the case of Fazalur Rahman and others vs General Manager. S.I.D.B and another reported as PLD 1986 Supreme Court 158. Reliance in this respect is also placed on thc case of Malik Aman and others (l lt) lhr" lJl.lt irk JlSttct: tltA,tR alttlll)

o vs Lan d Acq uisiti on Collector and others repofted as PLD 1988 Suprenrc Court 32.

15.In such circurlstances, enhancement of the market value to the sum of Rs. 75,000/- per Marla was not exorbitant or unjust.ified. The learned Referee Judge has rather adopted a very cautious approach in deten:rining the said amount. While fixing the amount of compensation for the tube well and transformer installed by the r-espondents in the acquired land, the learned Referee Judge has rightly relied upon the report of local commission. The local commission has in fact mainly relied upon the report of Public I lealth Department which has estimated the value of the tube well in its reporl which had been annexed with the report of the local commission as Annexule "U". No exception can be taken to the determination of amount of compensation in the said respect also.

16.While determining the amount of compensation, not only the market value should be taken into account but the fact that the person was deprivecl of his land against his will, therefore he should be adequately compensated and that's why the word 'compensation' instead of 'market value' has been used in section 23 of the Acquisition Act. lt (\lt) ltoN at.L MR, tu,\lt(E t'lQAfiAlttl,u)

r3 a was held by the Hon'ble Supreme Court o1'Pakistan in the case of Nisa r A h ma d Khan and others vs Collector. La n d cquisition. Swabi reported as PLD 2002 Suprente Court 2S at page 37 that where lands are acquired not through mutual negotiations but under the State porver conferred upon the State functionaries, the land owners 'are entitled to rnaximum possible benefits; Courts had to be liberal and generous in fixing the quantum of cor:rpensation based on different considerations so that neither a land owner is deprived of his due rights nor the acqulnng agency ls undulv burdened in the transaction,

t7 No rn isreading or non-reading or substantial infirmity could be shown by the learned Assistant Advocate General while appearing on behalf of appellants in the inrpugned judgtnent, which nray have been sufficient for discarding the same.

18.Fol what has been discussed above, the instant regular first appeal was fouttd without any merits and is dismissed accordingly.

Autrounced Dt:06,09.2019

DGE

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