Collector Land Acquisition Haripure Vs Col. Sardar Ahamad Yar Jang Durrani

Judgment Sheet

IN THE PESHAWARHIGH COURT,

ABBOTTABAD BENCH.

(Judicial Department)

RFA No.130- A of 2017 with CMs No.263 & 264-A of 2017

Collector Land Acquisition Haripur & another Versus Col. Sardar Ahmad Yar Jang Durrani & another

JUDGMENT

Date of hearing: 09.01.2020

Sardar Muhammad Asif, AAG, for appellants.

Mr. Muhammad Saleem Awan, for respondent No.1.

AHMAD ALI J.- 'fhrou gh this single judgment, I intend to decide the following appeals as common question of law and # facts involved and both these appeals perlain to the same award No.03 dated 24.06.1992 and outcome of same Judgment dated 10.06.20t7:

l) RFA No.l30-A of 2017 with CMs No.263 & 264-A of2017 Collector Lund Acquisition Haripur & anothet Vs. Col' Sardar Ahmod Yar Jang Durrani & another

2)RFA No.131-Aof 2017 Col. Sardar Ahmad Yar Jang Durrani VS. Collector Lsnd Acquisition Haripur & another

2.Facts essential for the decision of both the aforementioned appeals are that a chunk of land measuring 57 Kanals 12 Marlas, falling within the precinct of revenue estate of village Kotla Tehsil & District Haripur was acquired by the Highway Division Abbouabad and the rate of compensation was fixed as Rs.3428l40 per kanal for Ghair Mazroha and Rs.82281/60 per kanal for Chari land. The quantum of compensation was not acceptable to affected iand owner, Sardar Ahmad Yar Jang Durrani, and he for redetermination of the rate of compensation preferred an objection petitions u/s 18 of the Land Acquisition Act, 1894 to the Collector Land Acquisition and the same was ultimately referred to the Referee Court.

previously the learned Judge Referee Court vide Judgment V dated 22.11.2003 declined the prayer for enhancement of land however, petition to the extent of refund of amount of compensation so received by the respondent No.2 was allowed' The Objector preferred RFA No'24/2004 before this Coutt which was allowed vide Judgment dated 07.12.2006 and the case was remanded back to the Referee Court to re-evaluate the potential value and assess the price of trees and then to decide

the objection petition afresh. After the remand of case, a local commission was appointed to ascertain and assess the value of trees and then the objection petition was partially allowed vide judgment dated 17.10.2009. However, tn appeal RFA No.85/2009, this Court vide Judgment dated 27.01.2015 set aside the judgment dated 17.10.2009 and remanded the case back to learned Referee Court with the following directions:

"--- and remand the matter to the learned referee Court for decision afresh after proper

evaluation of the potential value of the acquired land as well as to assess the prices of the trees. The parties are at library to produce the evidence before the learned trial Judge and, if need be, the learned rekree Judge may order for the appointment of

anol her fresh local commission.---"

V 3 After receiving the case file on remand, the learned referee Court appointed Mr. Inayat-ur-Rehman Advocate as local commissioner to:

Visit and highlight location of the acquired property;

ll. Opine about present status, superstructure and development made over the Years;

iii. If possible, to repoft condition and status of the property at the time of its acquisition and for that matter, he may approach and associate any deparlment for the record concerned as well as local inhabitants and the parlies for collection of relevant evidence of the period;

iv. Determine distance of the propefty from Islamabad and famous sites and building in the nearby;

v. Reporl nature of the business/commercial activities in the surroundings

vi. Determine market value of the properly at the time of publication of notification under Section 4 of the land acquisition Act, 1894, regarding which he shall associate local

I

-\Lt-/ inhabitants, property dealers ofthe area and can

TT

collect any evidence;

4.The local commission submitted his blow-by-blow report wherein he specifically mentioned the existence of famous hotels and high potentiality ofthe acquired land and that now-a- days the land is being sold at least @ Fis.2 million per kanal' According to him the property in question was suitable for high quality business of food. The leamed local commission after

consulting with the Patwari Halqa, inhabitants of the area and properly dealers opined the market value at the time of acquisition Rs.85,000/- per kanal and its present value ls ranging from Rs.2 miliion to Rs.5.5 million. Besides, the local commission also submitted detail repod as to the average prices in the vicinity from 1988 to 2016 which show an upward trend in the prices of lands. The statement of local commlsslon recorded as CW-1 is fully in line with the report and nothing material discrepancy could be pinpointed during his cross- examlnatlon

5.There is no cavil with the proposition that the acquired propefty was adjacent to Pir Sohawa, a known place for commercial activities. In the present case Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 19.10.1989, however, the possession of land was probably v taken in the year 1992 and award was announced on 24.06.1992. The statement of Patwari Halqa, recorded as OW- 1 , and according to him the property in question was located at the bank of road. He also produced one-year average for the year 1992 (Ex.O.W.l/3) showing average price Rs.20,000/- pe kanal and one-year average for the yeat 1993 (Ex'O'W'1/a) showing average price as Rs.100,00/- per kanal. A considerable high difference in the above-mentioned average prices for the

year 1992 and 1993 makes it clear that the acquired property was a valuable chunk of land. Representative of respondents while appearing as RW-l did not deny the version of objector rather his statement was with regard to the payment of compensation to the respondent No.2 instead of objectors. It is worthy that the claim of objector against respondent No.2 was settled and his name was deleted by the Referee Courl nevertheiess, he was arrayed in this appeal unnecessarily.

6.l'he august Supreme Courl of Pakistan in the case titied Land Acquisition Collector and others Vs. Mst. Iqbal Begum and others (PLD 2017 SC 719) was pleased to hold:

"tt is well settled by now that "to determine compensation the Court must ascertain the

value on the date of notification, considering various factors including nature and location of acquired land and sale price of adjoining lands.

+{/ In assessing market value of land, its location, potentiality and price evidenced by transactions of similar land at the time of notification are factors which should be kept in view. One

year's average of sales taking place before publication of notification under section 4 of similar land is merely one of the modes of ascertaining market value and is not an

absolute yardstick for assessment of compensation. Moreover, status of acquired

land, its potentialities and its likelihood of development and improvement would tre

necessary factors for determining rate of

compensation."

7 . It is very important to note that the in the Land Acquisition Act, 1894, for the payment of price of land to affected landowners, the word "COMPENSATION" is used and not the word "MARKET VALUE" however, compensation should not be less than the market value. There is much difference between the terms 'compensation' and 'market value'. The market value is a highest price for which a property is exchanged on the date of valuation between a willing buyer and a willing seller in an arm's-length transaction wherein the pafties acted knowledgeably, prudently, and without il/ compulsion. Whereas, the term 'compensation' though used in various sections of the Land Acquisition Act, 1894 but has not been defined therein. But, as per dictionary meaning the compensation means "something, typically money, awarded to someone in recognition of loss, sutTering, or injury" or "money that is paid to someone in exchange for something that has been lost or damaged or for some prob1em". As the propefty was acquired against the will of owner, therefore, in order to

eliminate the sense of deprivation and discrimination, the affected landlord is compensation with the amount not less than market value prevailing at the time of acquisition. It would be unjust to the landowner if the amount of compensation is less and similarly it would be unjust to the public interest, if he is awarded more and it is based on the principle 'quid pro quo'.

The Holy proftt (peace be upon him) has guided us with saying, "Sell goltl in exchange of equivalenl gold, sell silver in exchange of equivalent silver, sell dates in exchange of equivalent dates, sell wheal in exchange of equivalenl wheat, sell salt in exchange of equivalent salt, sell barley in exchange of equivalent barley, but if a person transacts in excess, it will be asury, However, sell gold for silver anywty you please on the condition it is hand-to-hand (spol) and sell barley for date anyway you please on the condition it is hund-to-hand (spot)-" Therefore, in order to maintain equilibrium between individual interest of an affected s/ landowner and general interest of public at large, the compensation should always be that amount on which a seller can willingly sell his land and that is not much or less than the market value.

8.The learned Judge Referee Court in the impugned Judgment dated 10.06.2017 enhanced the rate of compensation as Rs.20,000/- per kanal in view of the one-year average price of the year 1992 (Ex.O.W.ll3) by keeping aside the report

commission. The learned trial court erred a-lot in holding that the local commission assessed the present market value of the property which ranges between Rs.2 million to Rs.5.5 million per kanal which is the rate of land 25 years after the acquisition.

The leamed courl below failed to comprehend the Report Commission (Ex.C.W.1/1) wherein besides present rates of the land i.e. from Rs.2 to 5.5 million, rate prevailing at the time of acquisition i.e. Rs.85,000/- per kanal has also been mentioned.

Both the parties, during the course of cross-examination of local commissioner as CW-1, could not shatter the opinion of local commissioner which was according to on-spot position of the land in question. Even otherwise, the average price of land in the year 1992 vid,e Ex.O.W.1/4 was Rs. 100,000/- per kanal, therefore, I do no hesitate to hold that the market price Rs.85,000/- per kanal as suggested by the local commission in his report Ex.C.W. 1/1 is quite justihed and without any exception. The claim of objector for fixing the rate of compensation Rs.500,000/- per kanal is without any backing.

The judgment of leamed referee Court with regard to the compensation of trees and other charges is based on proper appreciation of the record and law, therefore, the same to this extent do not warrant any interference by this Court.

9 In the premises aforesaid, the compensation of the acquired land is hereby enhanced to Rs.85,000/- per kanal and the impugned Judgment of the lear-ned Referee Court is, as such, modified to this extent only. Accordingly, the RFA No.130-4/2017 filed by the acquiring department with pending CMs stand dismissed, whereas, the RFA No.131-A/2017 filed by the Objector stands disposed-off in the above terms. Cost shall follow the events.

Announced Dt.09.03.2020

M

JUDGE

(SR)Hon hk ltlr ./"stt.c,lhnrdd Alt