State manager KP, EZDMC Vs Raja Iqbal Hussain etc

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PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

(ludicial Department) R.F.A. No. 125- Al20l7

JUDGMENT

Date of hearing: - 28.03.2024

Appellant: - (State Manaser KP, EZDMC etc.) hv Malik Mshmood Akhtar, Advocute.

Resoondent (Raia lqbul Hussuin & otherst bv:- Mr. Shoukat Zaman Advocate.

MUIIAMMAD FAHEEM WALI. J.- This Regular Irirsl Appeal has been brought against judgment of the learned Referee Court/Additional District Judge- II, Flaripur dated 12.09.2017, whcreby the learned Court while partially allowing thc objection petition filed by the respondent, held him entitled to receive compensation at the enhanced rates, as per onc year average Ex OW-3/4.

2.Landed property of the respondent/ objector, comprised in different Khasra numbers of Mauza Sirya, Haripur had been acquired by the appellants for Pak-China llconomic Zone, through Award |Jo. 105 datr:d 23.11.2010. For enhancement of rates of compensation, respondent/objcctor approached learned Referee Judge/Additional District JudgcrlI, Ilaripur through objection petition which

was contcstecl by the appellants. After recording pro and contra evidence, learned Referee Court partially allowed objection petition of the respondents vide impugned judgment and decree dated 12.09.2011 and held them entitled to receive compensation at the lollowing rates;

S. No Kind of l-and ltatc Pcr Rate Pcr Marla (l{s.) Kanal(l{s.)

llagh, Chari Nehri, 28,9421- 5,78,840/- & Chari

2 KLrnd 10,3661- 2,06,1201-

J IVIaira Nehri & 82691- 1,65,380/- Maira

4 I{akkar 41341- 82,6801-

5.Un-Cultivated 20611- 41,3401-

Feeling aggrieved of the rates fixed by the t learned Referce Court, the appellants approached this Court through appeal in hand with the prayer:

"On acceptance o/' the apPeal of the appellants, the iudgment and decree of the Referee Judge/Lower Court be set-aside and objection petition may he dismissed with heavy cost. "

3.Arguments heard and record peruscd.

4.Perusal of record reveals that

appeilants are aggrieved of judgment dated 12.Og.2Ol7 of the Referee Court l-Iaripur, whereby

J

amount o{'compensation has been enhanced. The Land Acquisition Collector, whiie determining the compensation of the acquired land, had relied on one ycar average Ex PW-216. Said one-year average perlain to the period w.e.f 20.07.2007 to 20.07.2008. No doubt notification under Section 4 of the Land Acquisition Act, was issued in the instant case on 20.06.2008, but the record also rcveals that before annouucement of Award, two corrigendum notifications dated 19.03.2010 (Ex OW-.22) and dated 17.05.2010 (Ex OW-213) were issued. The one-year average pertaining to the year 20CI7-2008, relied upon by the Collector was thus not justified, because thc prices of the land may have enhanced during the intervening period' Section 23 of the Land Acquisition Act, 1894 provides that for the purpose of determining compensation of the acquired land, its market value, at the date of taking its possession should be tahen into consideration. It has remained a ctebatable question as to whether the compensation of the acquired land may be determincd from thc date of issuance of notification under Section 4 or in case the corrigendum notification has been

issued, tlre date of issuance of corrigendum notification would be taken into account, while determining market value. Ilonourable Supreme Court of Pakistan, in the case of "Province of Funjab through Land Acquisition Collector und unother Vs. Begum Aziza" reported as 2014 SCMR 75, held that;

"There is yet another aspect rf the matler which may have a bearing on the value of the properly. The notification under section 4 of the Act was published on 17.04. I98 I ; two corrigenda were issued on 06. 10. l9B2; notification under section 5 was published on 20.07.l9B3; the declaration under section 6 was pttblishecl on l-2-1984 ancl the awartl was announced on 2B-3-1985. Thus it took fou, yeqrs /b, aPPellants to complete the acquisition proceedings. The prices may have escqlated during this period and this escalation has to be kept in view while assessing the potential value of the land. This is irt line u,ith the law laid down bY this Cottrt in Province of Sindh v. Ilamzan (PLD 2004 SC 512), Abdul Majeed etc. v. Muhammad Subhan etc. (1990 SCMR 1245 at 1255) ctnd Pakistan

llurma Shell Limited v. Province of N.W.F.P. etc. (1993 SCMR I700). " Similarly, in the case of "Central government of Pakistan Vs. Sardar Fakhar-e-Alam and another" (1985 CLC Peshawar 2228), this Court held that;

" Before we proceed /urther to evaluate the evitlence which wos brought on record before the learned Acqtisition Judge on the basis of u,hich he determined the con'tpensation to be paid to the responde'nl -fur his land, we v,ould like to record our fincling on the much clebated question as to which would be the malerial date for determining the amount of compensation to be awarded for the land acquired under the Act in accordance with lhe measure lctiC down in the first c:lause to subseclion (I ) of section 23 qf the Act. As alreadv menlioned, lwo notiJicalions were issued rutder section 4 of the Act by the Colleclor of the District, one on the l4th June, l9\l wherein many Khasra numbers, including Khctsras y'y'os. 44 and 45 measuring I Kanal 7 Marlas belonging lo the respondent, were menlioned w'hich were likely to be acquired by Government for the public pltrpose, aruJ llte other (by **ay of corrigendum) on the 29th ilfiarch, I982 wlrcrein the Khasra nwnbers already noti/ied and the additictnal area likely to be needed, including the land measuring 4 Kanals I marla repre,sented by Khasra

Nos. 12 and 43 belonging to the respondent, were mentioned. This Corrigendum, which w'as a full-fledged nolification issued under section 4 of the Acl, is availahle at pages 18-19 o.f the record o/' the Acquisilion Judge. The learned counsel for lhe appellant contended that the material date for the purpose of determining the compensation would be the llth June, l99l on which date the .first notdication was issued, but tlrc learned counsel for the respondenl, as olready mentioned, argued that this date wottld be the 29th Mctrch, 1982 on which date the corrigendum was issued. LVe are inclined to accept lhe contention of the learned counsel for the respondent because what was expressed by the Collector, of the District to be a Corrigendum was in fact a noli/icalictrt, c:omplete by itself, issued under section 4 of the Act. It contained details of all the Khasra numbers, including those earlier notiJied, which were needed bY (lovernment to be acquired /br a public purpose. It, being complete and seA- conlained, had, infact, supersed.ed the first ncttification issued on lhe l4lh ,lune, 1981. The material date for the purpo-se o.f dete.rmining the crtmpensation lo be awarded .fa, the acquirecl land was, therefore, tlte 29th fuIarch, 1982."

It rvas also held by this Court in the case of "Miangul Badshuh snd 7 others Vs. Land

Acquisition Collector, Deputy Commissioner Swat qnd 5 others" QAl2 CLQleshawar l2l2), that provisions of Section 23 of the t,and Acquisition Act, 1894 was not the sole criteria for fixation of market value of the acquired land and when there was delay of two to three years in notification under Section 4 and announcement of Award, then the factors of escalation in price and lirture potentials should also be kept in mind while a.ssessing compensation. Relevant findings are reproduced hereunder for ready relbrence;

" We have lo see as to what should be the market value of the accluired property on the strength ?f available record irre,spective of the fact as to whether the antended provisions of seclion 23 of the Act ibid were extended to the I'}ATA area ( or not. The adherence of the trial Court to the provisions of section 23 of the Act ibid fbr fixation of compensatiort on the basis o/'market value prevailing one year prior to publication of the Nolifi.cation under section 4 of the Act ibiC, in. the peurliar circumstances of the case, cannol be held to be tawful and iustiJied. Provisions of' section 23 (1) of the Act can never be held as the sole criteria for /ixation of markel value" The factor of potential and /uture t,alue of the acquired land has also to be

kept in mind while determining the compensation of the acquired property. Escalation of prices between the period of publication of notification under section 4 and the announcement of aw,ard is yet another aspect of the c:ase. Delalt of lwo or three years between two dates has been considered as a faclor /br enhancing the compensation whereas in the case in hand, lhere is a delay of tuelve years plus in beltueen the date ,/ publication of notification under section 4 and announcement of award. Even the irtjlationary trend and deprecictlion in the currency of the counlry belween the lwo dates cannot be ignored. The apex Court in lhe case of Mst. Iqbal Begum and others held that the gold be given /br gold and not copperfor gold."

Thus it is clear that the market value of the acquired iand should be assessed lrom the date, when ther acquisition process is actually carried out, either by way of issuing corrigendum notihcation or by way of taking possession of the property, lollowed b), announcernent of au'ard in accordance u.ith the provisions of l.and Acquisition Act'

5.In the instant case, the land of the responclents has been acquired for construction of Pak-China Economic Zone. In the Award, the

collector assessed compensation of the acquired land as per one year average price of the land prevailing at the time when first notification under Section 4 of the Land Acquisition Act, 1894 was issued, while the learned Referce Court rightly taken into consideration the fact that after issuance of corrigendum notification, first notification under Section 4 of the Act, lost its worth and thc corrigendum notification was the notification under Section 4 for all intents and purposes.

6.ln this case, the corrigendum notification was issued on 19.03.2010 and 17.05.2010. So price of land in the casc in hand I'or tlre purposc of compettsation has rightly bcen fixcd as per average Ex OW-3/4 from 23.11.2009 to 24.11.2010. Learned Referee Court has rightly taken into consideration all the relevant aspects of the case, while deciding objection petition of the respondent and passed a balanced judgment, to uihich no exception could be takcn. No illegality, irregularity or mis-reading and non-reading of evidence coulcl be pointed out by the learned counsel for the appella,ts, warranting interference

b), this Court in the irnpugncd judgment ol'lcamcd Itefcrce Court

7 For what has been discussed above, appeal in hand is fiound divesterl of merits and therefore, stands dismissed acr:ordingly.

ANNOUNCED

Dt: 28. .2024

.IUDGE

Tufail.t