Muhammad Tufail vs CLA Mansehra

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Regular First Appeal No.12-A/2014

JUDGMENT

Date of hearing..................14/10/2014........................................ Appellant(s)...(Muhammad Tufail and others) by Mr. Khan Afzal, Advocate....

Respondent(s)...(Collector, Land Acquisition, Mansehra and others) by M/s Muhammad Naeem Abbasi, AAG for respondent No.1 and Farman Ullah Khattak, Advocate for respondents No.2 and MRS. IRSHAD QAISER, J:- By this single judgment, this court intends to dispose of two Regular First Appeals, as they arise out of a single judgment and decree of the learned Additional District Judge-I/Referee Judge, Mansehra dated 29.10.2013 and also that common questions of law are involved in both the

appeals. The particulars of said RFAs are given below:-

i. Muhammad Tufail etc Vs.

Collector, Land Acquisition, Mansehra etc (RFA No.12-A/2014); and ii. Pakistan Tobacco Board etc Vs. Saeen Khan etc (RFA No.7-A/2014).

2.The brief and essential facts leading to the present appeals are that the Chief Planning Officer, Government of Pakistan Ministry of Commerce, Pakistan Tobacco Board, N.W.F.P, Peshawar vide letter No.A.P.E-20/419/PTB dated 31.07.2008 requested for acquisition of land bearing ‘Khasra’ Nos.1398, 1399, 1400, 1405, 1406, 1407 and 1408 measuring 14 ‘Kanals’ 13 ‘Marlas’ situated in Labar Kot Tehsil & District Mansehra for the construction of ‘Tobacco Research Sub- Station Mansehra at Labar Kot’. In this regard, the requisite notification under Section 4 of the Land Acquisition Act, 1894 was published on 04.09.2008. The Land

Acquisition Collector, Mansehra, after observing all the legal formalities has announced Award No. 233 on 17.11.2009 and fixed the compensation for the property being acquired as follows:

Classification Rate per Rate Per Total cost Marla Kanal Maira 15443/52 308870/40 1,513,465 Banjar 643/48 12869/60 58,557 Qadeem Banna 1286/96 25739/20 12,869

Ghair 32/74 6434/85 30,243 Mumkin Compulsory Acquisition Charges @ Rs.15% 242,270 The appellants / owners, whose land bearing ‘Khasra’ Nos.1399, 1407 and 1408, was acquired in the said acquisition proceedings through said Award, were aggrieved of the compensation so fixed and thus they contested the same by filing a reference bearing No.8/4 of 2011 under Section 18 of the Land Acquisition Act.

3.The objection petition / reference was contested by the respondents by filing replication thereto. The learned Referee Court based on the contesting claims of

the parties, framed ten issues, which were as follows:-

“1. Whether the petitioners have got cause of action to file instant reference?

2.Whether the petitioners are estopped to sue due to his own conduct?

3.Whether the reference in its present form is maintainable?

4.Whether the reference in hand is time barred?

5.Whether petitioners have sold out their shares in the column of cultivation in the revenue record and they are recorded owners only in Khasra No.399?

6.Whether the process of acquiring the land has not been conducted in accordance with law?

7.Whether the acquired suit property has got much potential value being a fertile Nehri land and situated near the PGC Mansehra and with link road Labarkot?

8.Whether the petitioners are entitled to get compensation for acquired suit property at the rate of Rs.1,500,000/- per kanal

alongwith 25% compulsory acquisition charges with prevailing bank interest rate since 04.09.2008?

9.Whether the petitioners are entitled for decree as prayed for?

10.Relief?”

4.The parties produced their pro and contra evidence in support of their respective claims. In this regard, ‘Patwari’ Land Acquisition appeared as P.W.1 and produced Award No.233 dated 17.11.2009 (Ex.PW 1/1), notification under Section 4 of the Land Acquisition Act (Ex.PW 1/2).

He also produced copies of notifications under Sections 5, 9 and 10 of the Land Acquisition Act and one year average for the period from 04.09.2007 to 04.09.2008 (Ex.PW 1/D-4). ‘Patwari Halqa Labar Kot’ appeared as P.W.2 and produced revenue record, which included one year average (Chakwar) for the year 2008-09 (Ex.PW 2/2), one year averaged for the

period from 04.09.2007 to 04.09.2008 (Ex.PW 2/3), Muhammad Aslam Khan son of Sher Zaman Khan and Muhammad Tufail son of Sain, attorney of appellants were also examined as PW-3 and PW-4 in support of their claim regarding the potentiality and value of the acquired property. Akbar Ali, Farm Manager, Pakistan Tobacco Board, Mansehra appeared as D.W.1 on behalf of the present respondents-Tobacco Board.

5.The Referee Court, after hearing the learned counsel for the parties, enhanced the compensation and fixed it at Rs.25,000/- per ‘Marla’ with 15% compulsory acquisition charges vide judgment and decree dated 29.10.2013.

Aggrieved thereof, the appellants / owners of the land and the Pakistan Tobacco Board, impugned the said judgment and decree through separate appeals, mentioned hereinabove.

6.Mr. Khan Afzal, Advocate the learned counsel for the appellants/owners, vehemently contended that the Referee Court had though enhanced the compensation fixed by the Collector to some extent but despite enhancement thereof, the market value of the acquired property was more than the compensation determined by the learned Referee Court;

that the learned Referee Court has ignored the material evidence available on record;

and that the future prospects of similar land could be taken into consideration to determine the reasonable compensation of the acquired property, which was not considered by the Referee Court. Reliance was placed on Land Acquisition Collector and others Vs. Mst. Iqbal Begum and others (PLD 2010 SC 719), Sultan Shah and another Vs. LAC Swabi and others (PLD 2011 Peshawar 60), Mst. Sumera Gul Vs. Land

Acquisition Collector G.S.C. WAPDA Peshawar and others (2011 SCMR 118), Province of Sindh, through Collector of District Dadu and others Vs. Ramzan and others (PLD 2004 SC

512)and Government of N.W.F.P and others Vs. Mst. Jamsehed Bibi and another (PLD 1997 Peshawar 19).

7.Conversely, Mr. Farman Ullah Khattank, Advocate the learned counsel for Pakistan Tobacco Board, controverted the assertions made by the learned counsel for the appellants and contended that the Referee Court had totally ignored the fact that the acquired land was not of much potential value has illegally enhanced the compensation therefor; that the amount so determined and fixed by the Collector was quiet reasonable but the learned Referee Court without any cogent reasons enhanced the compensation amount of the acquired land; and that the enhancement

of compensation by the Referee Court in the amount of compensation determined by the Collector was not in accordance with law and settled principles. Learned counsel for the respondents Board relied upon the case reported as ‘Civil Aviation Authority through Project Director and others Vs. Rab Nawaz and others

(2013 SCMR 1124).

8.Arguments of the learned counsel for the parties heard and the available record of the case perused.

9.Perusal of record would reveal that in the present case Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 04.09.2008, while the Award was announced on 17.11.2009, whereas the possession of the acquired land was taken on 13.03.2010. Now, as per amendment in Section 23 (1) of the Land Acquisition Act, through NWFP Amendment Ordinance XVII of 2001 dated 22.08.2001, the words ‘firstly, the market-value of the land on the date

of the publication of the notification under section 4’, have been substituted with the words, ‘firstly, the market-value of the land on the date of taking possession of the land’. It is obvious from the said amendment that the market value of the acquired land for determination of compensation would be considered, as it was on the day when the possession of the said land was actually taken from the land owners, for to avoid even slightest loss to them and award of compensation commensurate to the price / value on the said very day. Even otherwise, it is not the only factor for determining compensation of the acquired land. The future prospects of the acquired land would also be looked into keeping in view the attending circumstances of each case.

However, in the present case, the learned Referee Court while rendering its findings has observed that:-

“The price/compensation of the property as per one year average Ex.PW 1/D4 in which the price/compensation shown as Rs.15443.52. The one year average of the year 2007-08 Ex.PW1/D4 as well as per award Ex.PW 1/1 shows the same price but one year average chakwar for the year 2007-08 Ex.PW 2/3 shows the price of the same property as Rs.48156/-. One year average chakwar 2008- 09 shows price of the same property per marla as Rs.46343.46 but neither one year average chakwar nor one year average for entire mauza alone can be relied for compensation / price of disputed property as the chakwar one year average are of specific area whereas one year average in respect of entire mauza including all nature of property and the disputed property is acquired one, whereas disputed property as per PW3 and PW4 is near to Sharh-e-Resham intervened by government college and this has come in cross-examination of said PWs. Thus the price/ compensation so fixed is not accordance with nature, local and potential value of the disputed property, therefore, keeping in view location, nature and potential value of the disputed proper the price/ compensation is enhanced and is fixed as Rs.25000/- per

marla with 15% compulsory acquisition charges.”

10.The possession of the property was taken after about one and a half year of the issuance of the Notification under Section 4 of the Act on 13.03.2010. The price of ‘Maira’ kind of land was shown to be Rs.48,156/- per marla in the year, 2007-2008, as per one year average Ex.PW 2/3 for Mauza Labarkot. The acquired property is situated in the same Mauza and its potentiality and future prospects being located in a very close proximity of Sharai-e-Resham and contiguous to Government Post Graduate College, Mansehra, the compensation should have been enhanced in view of the one year average for the year, 2007-2008 Ex.PW 2/3. No cogent reasons have been rendered by the learned Referee Court, for not allowing compensation at the rate of Rs.48,156/- per marla. Thus, it would be

in the interest of justice and the peculiar facts and circumstances of the present case that the rate of compensation is enhanced. Similarly, the learned trial Court has not rendered any finding for not awarding simple interest @ 6% to the appellants / owners of the acquired land.

Under the law, the appellants would be entitled to the grant of simple interest, even after passing of decree and at the time of execution of the decree by the executing Court, if grant thereof is not mentioned in the decree itself. Reliance in this regard is placed on ‘Major (Retd) Akbar Jan VS. Collecto Land

Acquisition, Sui Northern Gas Pipelines Limited (PLD 2010 Peshawar

11.Accordingly, in view of the aforementioned findings, this court holds that the appeal of the Owners being RFA No.153/2007 is partially accepted and the

compensation for the acquired land is enhanced to Rs.20,000/- with the 15% compulsory acquisition charges and 6% simple interest on the enhanced amount.

While the appeal filed by the Pakistan Tobacco Board etc being RFA No.7-A/2014 is dismissed.

No order as to costs.

JUDGE

Announced. JUDGE Dt.14/10/2014.

*/M.S.Awan/*