Ministry of Defence vs Muhammad Junaid Khan etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR.

JUDICIAL DEPARTMENT

R.F.A. No. 140/2011.

JUDGMENT

Date of hearings 18.06.2015.

Government of Pakistan Ministry of Defence through Secretary versus Muhammad Junaid Khan etc.

Appellants by Mr. Abdul Sattar Khan, Mr. Zia ur Rehman, Mr. Nasir Mehmood, advocates and Malik Muhammad Rehan Awan, Standing Counsel.

Respondent Mr. Shaukat Ali, advocate.

IRSHAD QAISER, J: - By this single judgment, this Court intends to dispose of (thirty six) Regular First Appeals including (five cross objection petitions), as they involved the same legal and factual controversies, arise out of the same Award dated 21.04.1999, and the judgments passed by learned Additional District Judge-IV, Nowshera dated 14.07.2010 in respect of fixation of compensation of the property acquired through Award dated 21.04.1999.

The particulars of said appeals and cross objections are given below:-

S No. Case No. Title

1.R.F.A. No. 17/2011 Furqan Ali etc Vs Ministry State Officer, Peshawar etc.

2.R.F.A. No. 23/2011 Muhammad Saeed Butt etc Vs Land Acquisition with C.M. No. Collector, Nowshera etc.

3.R.F.A. No. 61/2011 Ehsanullah etc Vs Military Estate Officer, with C.M. No. Peshawar etc.

4.R.F.A. No. 62/2011 Mst. Shaista Faram etc Vs Government of Khyber Ă.ß.ĂWĂŇ

with C.M. No. Pakhtunkhwa etc.

5.R.F.A No. 140/2011. Government of Pakistan Vs Muhammad Junaid Ministry of Defence through Khan etc.

Secretary.

6.R.F.A. No. 141/2011 Government of Pakistan Vs Ashrafuddin etc. with C.M. No.

7.R.F.A. No. 142/2011 Government of Pakistan Vs Muhammad Essar with C.M. No.

8.R.F.A. No. 143/2011 Government of Pakistan Vs Zareen Taja etc 9. R.F.A. No. 144/2011 Government of Pakistan Vs Itbar Gul 10. R.F.A. No. 145/2011 MEO Peshawar Vs Pervaiz Khan etc 11. R.F.A. No. 146/2011 Government of Pakistan Vs Haji Ahmad Din Butt etc 12. R.F.A. No. 147/2011 Government of Pakistan Vs Muhammad Sanadi etc with C.M. No.

13.R.F.A. No. 148/2011 Government of Pakistan Vs Dr. Abdul Rasheed etc 14. R.F.A. No. 149/2011 Government of Pakistan Vs Haji Fateh Khan etc 15. R.F.A. No. 150/2011 Government of Pakistan Vs Ajoon Khan etc with C.M. No.

16.R.F.A. No. 151/2011 Government of Pakistan Vs Furqan Ali etc with C.M. No.

17.R.F.A. No. 152/2011 Government of Pakistan Vs Malik Shahwas Khan etc 18. R.F.A. No. 153/2011 Government of Pakistan Vs Johar Khan etc 19. R.F.A. No. 154/2011 Government of Pakistan Vs Khursheed Ali Khan etc. with C.M. No.

20.R.F.A. No. MEO Peshawar etc Vs Syed Ali Shah etc.

21.R.F.A. No. 162/2011 MEO Peshawar etc Vs Bibi Shaista Faram etc with C.M. No.

199/2011 and C.M.

No. 150/2012.

22.R.F.A. No. 163/2011 MEO Peshawar etc Vs Raj Muhammad Khan etc

23.R.F.A. No. 164/2011 MEO Peshawar Vs Nizam ud Din with C.M. No.

201/2011 with C.M.

No. 152/2011

24.R.F.A. No. 165/2011 MEO Peshawar. Vs Ahmad Sarwar 25. R.F.A. No. 166/2011 Government of Pakistan. Vs Farhat Begum 26. R.F.A. No. 167/2011 Government of Pakistan Vs Tahir Amin with C.M. No.

160/2012 with C.M.

No. 204/2011.

27.R.F.A. No. 168/2011 MEO Peshawar Vs Zahir Shah etc 28. R.F.A. No. 169/2011 MEO Peshawar Vs Saranjam Khan etc 29. R.F.A. No. 170/2011 MEO Peshawar Vs Hassan Khan etc with C.M. No.

207/2011 with C.M.

No. 158/2012

30.R.F.A. No. 225/2012 Government of Pakistan etc Vs Abdul Wakeel Khan 31. R.F.A. No. 347/2012 Abdul Wakeel Khan Vs Government of Pakistan 32. Objection Petition Ahmad Sarwar etc Vs Government of No. 2/2012 in R.F.A. Pakistan.

No. 140/2011

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33.Objection Petition Raj Muhammad Khan etc Vs Government of Pakistan No. 3/2012 in R.F.A. etc.

No. 163/2011.

34.Objection Petition Muhammad Esar Vs Government of Pakistan No. 7/2011 in R.F.A. etc No. 142/2011.

35.Objection Petition Hassan Khan etc Vs Government of Pakistan in R.F.A. No. 8/2012. etc

36.Objection Petition Government of Pakistan etc Vs Ahsanullah etc. in R.F.A. No. 8/2013 in R.F.A. No. 8-

P/2013.

2.The brief and essential facts leading to the present appeals and objections petitions are that Land Acquisition Collector, Nowshera acquired land measuring 18680 Acres, 1 Kanal and 18 Marlas in 12 villages namely;- S. No. Villages Area Kanal Marla.

1 Badrashi 300 02 07 2 Manki Sharif 3415 01 11 3 Maharaji 909 00 07 4 Khesrai 2338 06 15 5 Lakarai 1305 00 03 6 Spin Kani 1878 02 03 7 Palosi 621 02 06 8 Azakhail Payan 1673 02 05 9 Pirpai 3100 04 06 10 Aman Garh 1169 03 09 11 Nowshera Khurd 1916 07 02 12 Azakhel Bala 54 01 04 Total 18680 01 18

Situated in District Nowshera through Awards dated 21.04.1999 for the purpose of AFV Army Range Nowshera for Pakistan Army on the basis of the report of Revenue Authorities. The Notification under section 4 of Ă.ß.ĂWĂŇ

Land Acquisition Act, 1894 was issued on 13.05.1977 while the disputed Awards within meaning of section 11 of the Land Acquisition Act, 1894 was announced on 21.04.1999 and fixed the compensation for the properties situated in different Mozajat i.e. Badrashi, Manki Sharif, Speen Kan, Aman Garh and Nowshera Khurd.

3.Appellants/Respondents/Objectors who were also owners in the disputed properties upto the extent of their share in the revenue record filed Objection Petitions before Referee Courts, Nowshera being dissatisfied with the rate of compensation.

4.The objection petitions were contested by the (Appellants/EMO etc) by filing replications thereto. The learned Referee Courts/Additional District Judges, Nowshera framed issues based on the contesting claims of the parties. The parties were afforded the opportunities to produce their pro and contra evidence in support of their respective claims. Objectors produced witnesses including Patwaries of their respective Halqas. On the other hand appellant examined concerned official witnesses and closed their evidence. During trial proceedings land owners/objectors filed applications for the appointment of local Commissions for physical inspection of the spot and Ă.ß.ĂWĂŇ

to determine the actual market value of the acquired land.

Applications were allowed and Mr. Shaukat Ali Khan, Mr.

Wajid Ali and Mr. Hamid Hussain, advocates were appointed as Local Commissioners and after inspection they submitted their respective reports vide which the market value of the acquired land is much higher then the value assessed by acquiring department. Resultantly learned Additional District Judges/Referee Courts accepted the petitions and enhanced the amount of compensation of acquired land at different rates situated in different Mozajats besides 15% compulsory acquisition charges and 6% simple interest. Feeling aggrieved from the orders of learned Additional District Judges, both the parties went in appeal and filed Appeals as well as Cross Objections. At the conclusion of hearing this Court vide order dated 24.11.2009 accepted the appeals and objection petitions and remanded the cases back to the learned Referee Court for decision afresh after attending to the anomalies and disparities with directions that Referee Judge would be at liberty to examine the Patwari or any other witness afresh.

5.After remand of the case again Parties were summoned and examined thoroughly. At the conclusion Ă.ß.ĂWĂŇ

of hearing learned Additional District Judge-IV, Nowshera vide impugned judgments/orders dated 14.07.2010 accepted the objection petitions in favour of owners/objectors belonging to different Mozajat and enhanced the rate of property in accordance with the market value of each Moza. In cases of land relating to Moza Nowshera Khurd the rate was enhanced to Rs. 5821 per Marla, for Moza Manki Sharif rate was enhanced to Rs. 5000, for Moza Speen Kane rate was enhanced to Rs.

5000 and for Moza Aman Garh rate was enhanced to Rs.

6.Being aggrieved and dissatisfied from the judgments of learned Additional District Judge-IV, Nowshera both the parties filed instant appeals and cross objections.

7.Learned counsel for the appellants/owners, vehemently contended that after remand of the case, learned Referee Court had though enhanced the compensation fixed by the Collector to some extent, but, despite enhancement thereof, the market value/potential value of the acquired property was much higher 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 Ă.ß.ĂWĂŇ

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.

8.Conversely, learned counsel appearing for MEO and Government of Pakistan while controverted the assertions made by the learned counsel for the appellants/land owners contended that the trial Court has enhanced the rate of the land on the basis of oral evidence and has neither considered the revenue record nor observed the mandatory provisions of Land Acquisition Act, 1894. The rate of acquired land as fixed by the acquiring authority in the Award is according to the Osat Yaksala and other revenue record and provisions of Land Acquisition Act, 1894. The respondents/objectors never proved their case for enhancement of compensation amount as no cogent/documentary evidence was produced by the respondents/objectors. That in fact the land acquired is a barren land comprising of ditches and hilly area, which has no potential value but can well be used for the firing range by Armed Forces for defence purposes. It is further contended that the appellants/MEO etc through documentary evidence had proved that the acquired land being “Banjar Qaeem” was in their possession since long Ă.ß.ĂWĂŇ

as mortgaged property and the respondents/objectors have not claimed any ownership on the same since 1955. The Objectors/respondents are not entitled to the enhancement of compensation under Land Acquisition Act, 1894 and their Objection Petitions/appeals are liable to be dismissed.

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

10.Admittedly all the appeals and objection petitions are time barred as these have not been filed within time.

Both the parties have submitted their respective applications for condonation of delay. The reasons for delay given by the parties are that due to natural calamity and historical flood in July/August 2010 in Nowshera the record of almost all the cases of the Courts of District Nowshera have been damages/destroyed and misplaced;

therefore, sufficient time was elapsed in the collection of relevant record. Since the reasons given for delay are genuine and unavoidable therefore, all the C.Ms for condonation of delay are accepted and delay is condoned.

11.From the record it is suggestive that when at initial round of litigation Referee Judges Courts/Additional District Judge enhanced the amount of compensation of Ă.ß.ĂWĂŇ

acquired land, beside 15% compulsory acquisition charges and 6% simple interest both the parties filed appeals and cross objection in this Court, the same were accepted and cases were remanded back to the trial Court for decision afresh.

12.Admittedly the objectors who have filed objection petitions for enhancement of value of the land belonging to them, was acquired by the appellants/MEO etc. Patwari Halqa produced record in this respect and they also supported the contention of objectors that they are land owners. Now the main question for determination is that what is the value of the land and whether the amount of compensation fixed is inadequate and not in accordance with the potential value of the suit land and at the time of assessing the value the status, location and nature of the acquired land was not considered?

13.From the perusal of contents of Award and the evidence produced by the parties it reveals that acquiring department had acquired land from 12 villages and some of the villages like Palosay, Lakaray and Spin Kane etc have no yearly average and the value was assessed on the basis of the yearly average of adjacent village without taking into consideration its potential value. It is now Ă.ß.ĂWĂŇ

settled law that while assessing the compensation the Collectors has not only to consider the market value for the land in question but its potential value. The market value is normally taken up as one existing on the date of Notification under section 4(1) Land Acquisition Act, 1894, under the principle of willing buyer and willing seller. While the potential value was the value to which similar land could be put to any use in future. Thus in determining the quantum of compensation the exercise may not be restricted to the time of Notification, but, its future value may be taken into account.

14.In this respect reference may be made to (2009 SCMR 771) “Land Acquisition Collector, Abbottabad and others versus Gohar ur Rehman Abbasi” wherein it is held;-

“At the time of passing of award, potential value of the property had to be considered in addition to market value of the land. Average sales of last one year was not conclusive for determination of market value of land and while assessing the market value of the land, its location and potentiality had to be considered”.

15.In case ‘Malik Aman and others versus Land Acquisition Collector’ (PLD 1988 SC 32) it is held;- Ă.ß.ĂWĂŇ

“Factors for determination of market value of land are not, therefore, restricted only to time of issuance of Notification or any period prior to it but can also relate to period in future and it is for this reason that “potential value” of land i.e. the use to which it can be put in future has in a large number of cases been held to be a relevant factor - - Fact that long period had elapsed between issuance of Notification and announcement of Award coupled with fact that during that period prices of land in question land risen sharply, held, was a factor which ought to and should have been taken into account while determining value of land for the purpose of compensating the owner”. In case Province of Punjab through Land Acquisition Collector and another versus Begum Aziza 2014 SCMR 75 it is held;-

“Notification for acquiring land in question was issued on 27.04.1981, while the Award was announced on 28.03.1985, thus it took four years for the authorities to complete the acquisition proceedings, and prices might have escalated during such period - - - Such escalation had to be kept in Ă.ß.ĂWĂŇ

mind while assessing potential value of the land - - - Judgment of High Court was in consonance with the spirit of Section 23 of Land Acquisition Act, Guidance may also be sought from case “Province of Sindh through Collector of District Dadu and others versus Ramazan and others” (PLD 2004 Supreme Court

512)it is held;-

“Announcement of Award is sometimes unreasonably delayed after the issuance of Notification under section 4 of the Act. Any escalation in the value of property during such period is a potential value of land, which must be taken consideration. Market value at the time of Notification under section 4 of the Land Acquisition Act, 1894 is merely one of the modes for ascertaining the market value and is not absolute yardstick for assessment of compensation. Mere classification or nature of land may be taken as relevant consideration, but it not an absolute one. An area may be “Banjar” or “Barani”, but its market value may be tremendously high because of its location, neighbourhood, potentiality Ă.ß.ĂWĂŇ

or other benefits. All these factors, therefore, cannot be ignored.”

16.It has repeatedly been held by superior Court that in acquisition case the owner of the acquired land should be paid compensation and not the price because there is difference between compensation and price while assessing the award compensation on the basis of one year average is not sole criteria in the present trend of extra ordinary hike of landed property. The land is acquired in the interest of General Public at public expenses on the basis of sacrifice of an individual, which requires to adequately compensating the individual in extra ordinary manner and the compensation should be fixed in the light of criteria of a willing vendor and that of a needy vendee.

In this respect wisdom can be drawn from the “Land Acquisition Collector and others versus Mst. Iqbal Begum and others” reported in (PLD 2010 SC 719) wherein it is held as under;-

“The principles laid down for determination of compensation reflect anxiety of law giver to compensate those deprived of property adequately enough so as to be giver gold for gold and not copper for gold one years average of sales taking price before

Ă.ß.ĂWĂŇ

publication of Notification under section 4 of similar land is merely one of the mode of ascertaining market value and is not an absolute yardstick for assessment of compensation.”

17.In this respect reference may also be made to;- 1999 SCMR 1647. “Murad Khan through his widow and 13 others versus Land Acquisition Collector, Peshawar and another” PLD 1956 (W.P) “Premier Sugar Mills versus Qazi Hayat Peshawar 67. Ullah”.

PLD 1960 (W.P) Lahore “Land Acquisition Collector Rawalpindi 469. versus Lieutenant General Wajid Ali Khan”.

PLD 1966 SC 547. “Province of W.P versus Salimullah” 1980 CLC 574. “Pakistan versus Reham Dad” 1983 CLC 1281. “Pakistan versus Din Muhammad” PLD 1977 Karachi 203. “Khata versus barrage Mukhtiar Kar Thatta” PLD 1978 Lahore 1135. “Din Muhammad versus G.M. Communication” PLD 1983 Lahore 578. “Province of Punjab versus Sher Muhammad” PLD 1986 SC 158. “Fazal ur Rahman versus G.M, S.I.D.B.” 1985 CLC 2228. “Government of Pakistan versus Fakhar Alam” 1986 MLD 252. “Raza Muhammad Abdullah versus Government of Pakistan.”

1986 MLD 381. “Abdul Wahid versus D.Comimission, Karachi.”

18.Before discussing the market and potential value of the acquired land we deem it proper to determine whether the 15% compulsory acquisition charged provided in the Award and accepted by Referee Judge is correct or it should also be enhanced.

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19.Admittedly land was required to Pakistan Army for the purpose of firing range; therefore, it was acquired for AFV/range at Nowshera. Pakistan Army is regulated by Pakistan Army Act, 1952 passed by Parliament of Pakistan). It falls with in the definition of company as defined in section 3(e) and section 23(2) of Land Acquisition Act, 1894. Relevant section is reproduced as under;-

“23(2). In addition to the market value of the land as above provided, the Court shall Award a sum of 15% on such market-value, in consideration of the compulsory nature of the acquisition, if the acquisition has been made for a public purpose and a sum of 25% on such market-value if the acquisition has been made for a company”.

Reference is made to PLD 1983 Lahore 1781 and

2007 SCMR 974.

In such view of the matter the owners are entitled to compulsory acquisition charges at the rate of Rs. 25% instead of 15%.

20.From the careful perusal of the whole record it reveals that almost all the owners/effecties have filed objection petition for the enhancement of rate of land and Ă.ß.ĂWĂŇ

claimed that the value of their land is more than Rs.

15000/- per Marla on the ground that their land is situated adjacent to Nowshera Manki Road, Armour Housing Society, Nowshera Cantt, industrial area being used for commercial purposes as well as for residential purposes and that all the other basic necessities of water, electricity, road etc are available near the acquired land.

21.It appears from record that the assertion of the objectors have not been denied or contravened by the appellants/respondents. It is also clear from the record that the Land Acquisition Collector, Nowshera had assessed the value of the acquired land by taking the average rate of the sales for the preceding year i.e. from the date when Notification under section 4(1) of Land Acquisition Act, 1894 was issued in the year 1977. The possession of the land was taken on 13.05.1977 while the Award was announced on 21.04.1999. No valid reasons have been shown which caused the delay of 22 years for announcement of Award. It is also a fact that from time to time corrigendum were issued by Collector and finally Award was passed in the year 1999. The contents of Award reveal the lengthy process of the acquisition of land. First they acquired 24194 Acres of land consisting of Ă.ß.ĂWĂŇ

14 villages, then it was reduced to 19311 of 13 villages. In 1984 due to some discrepancies it was reduced to 19054 and lastly corrigendum in notification under section 4 was made on 24.08.1987 whereby 18680 Acres 1 Kanal and 18 Marlas was acquired from 12 villages. Though land noted above were acquired, but neither the interest of owner was taken into consideration nor the market value of the acquired land has been assessed in accordance with settled principles an enunciated in section 23 of Land Acquisition Act, 1894. The indifferent attitude and the inefficiency of the acquiring department can easily be assessed from the contents of the Award and in this respect a para of the Award is reproduced as under;- “The Deputy Secretary, Law Department N-W.F.P Peshawar sent the reply vide memo No. OP 15 (163) LD/BOR/91/9039 dated 23.09.1992 from which no fruitful result was achieved in favour of land owners”.

22.Due to the inordinate and unexplained delay by the concerned authorities not only the market value of the acquired land increased, but its potential value was also enhanced many fold due to the passage of the time. More so during this period the market value of the surrounding Ă.ß.ĂWĂŇ

land was also increased. Since the acquired land is situated at valuable places and has potential value; therefore, the future value of the land so acquired was required to have been assessed keeping in view the time of determining the compensation of land. Thus the fixation of Rs. 37.87, Rs.

22.24, Rs. 27.34 and Rs. 20.20 per Marla for different mozajat situated adjacent to each other seems to be imaginary and without considering the existing market value of the surrounding as well as its potential value in the future. In such a situation the market rates or the transaction that took place in the year 1977 in the acquired land has become meaningless. Authorities had no solid reason as to why Award was kept pending for 22 long years and thus deprived the land owners from the fruit of their land without cogent reasons. According to record before notification under section 4 of the Act the acquired property was in possession of appellant/respondent since 1955-56 under lease. Competent Authority was also conscious about the rights of the land owners and in this respect a letter No. 3/0/A dated Nowshera 07.08.1998 was issued by Collector Land Acquisition, Nowshera to the Commandant School of Artillery, Nowshera wherein it is pointed out that delay in Award would cause damage and Ă.ß.ĂWĂŇ

complication and suggested that rate has to be assessed on the basis of per year average of 1996-1997. This letter itself justified the claim of the land owners.

23.From the record it is suggestive that both before and after the remand the land owners have produced Patwari Halqa of different Mozajats and villages. Before remand Muhammad Azam Patwari Halqa of Nowshera Khurd was examined as PW-1. He produced copies of registers owners Ex.PW-1/1, similarly he produced Osat Yaksala (‘ )غيرممکنGhair Mumkin’ for the year 1996-97 Ex.PW- 1/4 according to which the market value of acquired land is Rs. 9375/- per Marla. After remand Patwari Halqa Moza Nowshera Khurd, District Nowshera was re- examined as RCW-1. He produced one year average for the period 1998-99 Ex.RCW-1/1. According to which the average price of land comes to Rs. 5821.95 per Marla.

Patwari Halqa of Moza Manki Sharif was also examined, in their respective cases as RCW-1. He produced one year average Ex.RCW-1/1 and stated that as per one year average for the year 1998 to 1999 the price of per Marla is Rs. 4914/-, but in his cross examination he admitted that one year average Ex.RCW-1/1 include mutation No. 1438 Ă.ß.ĂWĂŇ

in which 2 Kanals area was sold for Rs. 3,16,000/- on 22.10.1998. It means that the value of one Marla in 1998 is Rs. 9000/- (316000 ÷ 40 = 9000). Patwari Halqa Moza Aman Garh was examined as RCW-1. He also produced one year average for the period 1998 to 1999 Ex.RCW- 1/1. According to it the average price of per Marla came out to Rs. 6484.28. In cross examination he admitted that previously he produced one year average wherein per Marla price of the property was shown as Rs. 6530.61. He admitted the difference of the same year and stated that in present one year average the per Marla price is shown as Rs. 6484.28, while in the previous one year average the price was shown as Rs. 6530.61. Record shows that prior to remand Patwari Halqa Manki Sharif was examined as PW-1. He produced revenue record and one year average and stated;-

حال ہی ميں ارمی نے اس اراضی کے کچھ حصہ پر گندم کاشت کی اور مالٹوں کا باغ بھی لگايا جس کے ليے ٹيوب ويل بھی لگائے۔ اراضی متدعويہ ميں چھوٹا ائيرپورٹ بھی موجود ھے۔ اوسط پيش کرتا ہوں۔20.04.1999 تا21.04.1998 يکسالہ برائے معياد ھے۔ جسکے مطابق اراضی متدعويہ کی بازاری جو ھے۔ قيمت He has not been cross examined in this respect. In one year average Ex.PW- 1/2 the detail of mutation No.

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1425 is given vide which the land measuring 31⁄2 Marlas was purchased for Rs. 45,000/-. According to which the value of one Marla is about 13000/-.

24.From the perusal of different, one year average, record before and after remand in respect of same Mozajat for the same year it reveals that the value assessed by same Patwaries are different. These differences had also been pointed out by this Court at the time of remand of these cases and held;-

“Another strange and surprising facts in the cases mentioned above is that one year average of village Manki Sharif for the year 1998-99 comes to Rs. 6300/- in one, Rs. 5000/- in another and Rs. 4911/- in yet another set of cases. This gives rise to an impression that neither the Patwari Halqa was fair and faithful producing evidence nor the Courts hearing the References were discreet and discursive in examining the evidence thus produced. How this difference, duality and double standards can be justified”.

25.Even after the remand the Patwari Halqas, producing one year average for the year 1996-97 and 1997-98 of different Mozajats could not determine the Ă.ß.ĂWĂŇ

exact market value of the area in the year 1997-98.

However, they admitted that similar land in the same locality was disposed of at the rate of Rs. 13000/9375 per Marla.

26.In such situation the value cannot be assessed only on the basis of one year average. There are certain other modes to determine the “potential” value and the “future prospect” and “potentiality” of the acquired land other than one year average. The factors for evaluating the market value/price mentioned in section 23 Land Acquisition Act, 1894 does not preclude the Courts from taking any other special circumstances in consideration and requirement being always to arrive to a reasonable correct value. In this respect reliance is placed on 1993 SCMR page 1700, wherein it has been observed by august Supreme Court;-

“That assessing the market value of the land its location, potentiality and the price evidenced by the transaction of similar land at the time of Notification are the factor to be kept in view. One year’s average of the sale of similar kind of land is merely one of the modes for ascertaining the market value and is not absolute yardstick for assessment”.

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Reference is also made to case “Land Acquisition Collector versus Mst. Muqesha Begum” (2011 CLC 1488) wherein it is held;-

“Collector, Land Acquisition, while determining the compensation of acquired property, had failed to take into consideration the location of suit property and its surroundings possession of suit property was taken in 1993, while Award was announced in the year 2002, about nine years of taking the possession - - - Compensation was worked out by the Collector without any material before him and just relied upon one year average of the suit property- - - Fair and proper determination of market value hardly could be made on the basis of one year average of similar situated property is proximity of the acquired property - - - Lawful owner – having been compelled to part with his property, must be paid proper and adequate compensation - - - Provisions of Art. 24 of the Constitution, dealt with the compulsory acquisition of property by State for public purpose - - - State was under obligation to pay the Ă.ß.ĂWĂŇ

fair and just compensation of the property so acquired.”

27.Record shows that in order to assess the proper and accurate value of the land the Referee Court had appointed three local Commissions on the application of land owners to assess the market and potential value of different disputed Mozajats. Three Commissioners were sent by the Court for assessment of its market value. Per report of Commissioner Mr. Shaukat Ali, advocate its market-value was assessed at the rate of Rs. 4,00,000/- per Kanal which comes to Rs. 20000/- per Marla. He was examined as CW-1. He submitted his report Ex.CW-1/2.

He was cross examined at length. He admitted;- “I have assessed the market value of the property keeping in view the nature of the property and the documents provided to me by the petitioner”.

28.In his commission report he stated;- اس اراضی حصول شده کے جانب مانکی روڈ اور اے ۔ سی کواپرئيٹو سوسائٹی کالونی ھے۔ جس ميں تمام بنيادی سہوليات چھ الکھ روپيہ فی،زندگی ميسر ہيں۔ اور اس اراضی کی قيمت پانچ کنال ھے۔ جبکہ شرق شمال پر کنٹونمنٹ بورڈ نوشھره متصل ھے۔ جہان اراضی کی قيمت دس الکھ فی کنال ھے۔ جانب شمال امان گڑه انڈسٹر يل سٹيٹ اور موضع نوشھره خورد کی ۤابادی ہے۔ جو جگہ بہ جگہ حصول شده اراضی ميں مکانات تعمير ہو چکے ہيں۔ مگر Ă.ß.ĂWĂŇ

زياده ابادی اس ليے اس اراضی ميں نہ ھو سکی کہ يہ اراضی زير قبضہ ارمی تھی۔ متدعويہ اراضی کے ساتھ متصل اراضيات ميں جو خريد وفروخت ھوئی ھيں۔ بطور ثبوت چند انتقاالت لف کئے جاتے ھيں۔ چونکہ حصول شده اراضی صنعتی اور رہائشی مقاصد کے ليے صوبہ سرحد ميں سب سے زياده بہتر اور موزوں جگہ ھے۔ موجوده متصل اراضيات کی قيمت افاديت اور استعمال کو پيش نظر رکھ کر ميں اس نتيجے پر پہنچا ھوں۔ کہ اراضی حصول شده زير عذرداری کی قيمت کسی طور بھی چار الکھ روپيہ فی کنال سے کم نہ ھے۔ اگر عذرداران کو اسی حساب يعنی 4الکھ روپيہ فی کنال کے حساب سے عوضانہ کی ادائيگی کی جائے تو درست ھو گا۔ Second commission report Ex. CW-1/3 was

submitted by Wajid Ali Khan, Advocate. He was also examined as CW-1 and stated that the market value of the land is Rs. 4000/- per Marla. The third Commission report was submitted by Hamid Hussain, advocate who was also examined as CW-1. In his report he submitted;- اہل کمشن زمينی حقائق کو مدنظر رکھ کر اس نتيجہ پر پہنچا کہ اراضی حصول شده کی قيمت 12000سے لے کر 14000روپے فی مرلہ ھے۔

29.Record shows that all the three Commission reports are infield. There is nothing that these have been rejected by the Referee Courts. Rather to some extend the Referee Courts have also placed reliance on these reports at the time of enhancement of the value of the land. In such view of the matter when once the learned Referee Judges got to Ă.ß.ĂWĂŇ

the conclusion that value of the land has to be ascertained on the basis of “what a willing purchaser would pay to a willing seller”, then the Referee Judges were bound to ascertain the actual price of acquired land by taking into consideration the reports of Local Commissioners as well as the one year average “noted above” submitted by different Patwaries on different occasions.

30.Since it is proved from the record that despite issuance of Notification under section 4 of Land Acquisition Act, 1894 in the year 1977, the Award was issued in the year 1999 and the concerned authorities had delayed the issuance of Award for considerable period i.e.

for 22 years, therefore, they were required to have adequately compensated the petitioners keeping in view the increase in the market rates and its potential value;

however, these aspects have been ignored at the time of passing of Award as well as the Referee Courts at the time of passing of impugned judgments and the land owners are entitled to enhanced compensation for the acquired land.

31.Keeping in view the above facts and circumstances of the case including the one year average of different Mozajat produced by Patwaries, reports of Commissions, Ă.ß.ĂWĂŇ

the potential value of location of the acquired land as well as the long standing agonies both physical and financial of the land owners till date, market value/compensation fixed by trial Court is modified and enhanced and the

rate/compensation of the acquired land in all the Mozajats are fixed as Rs. 12,000/- per Marla. In addition to that, they are also to be paid 25% compulsory acquisition charges instead of 15% and 6% simple interest on the enhanced amount.

32.Thus as per below mentioned table, appeals filed by Government of Pakistan/M.E.O are hereby dismissed,

while, appeals and cross objection filed by owners are allowed. Similarly applications for condonation of delay in all appeals are hereby allowed, while other miscellaneous applications in all appeals are hereby disposed of.

S. No. Case No. C.M. C.M Nos. Title. Result.

Nos. which are which disposed are of.

allowed.

1.R.F.A. No. 166/2011 395/2013 Government of Pakistan versus M. Dismissed. 140/2011 83/2014, Junaid Khan.

2.R.F.A. No. 168/2011 928/2011 Government of Pakistan versus Dismissed. 141/2011 and Ashrafuddin.

3.R.F.A. No. 170/2011 171/2011 Government of Pakistan versus Dismissed. 142/2011. Muhammad Issar

4.R.F.A. No. 172/2011 Nil. Government of Pakistan versus Mst. Dismissed. 143/2011 Zareen Taja.

5.R.F.A. No. 174/2011 175/2011 Government of Pakistan versus Itbar Dismissed. 144/2011 Gul.

6.R.F.A. No. 176/2011 Nil. M.E.O versus Pervaiz Khan Dismissed.

7.R.F.A. No. 178/2011 147/2012 Government of Pakistan versus Haji Dismissed. 146/2011 Ahmad Din Butt.

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8.R.F.A. No. 180/2011 148/2012 Government of Pakistan versus Dismissed. 147/2011 Muhammad Sanadi

9.R.F.A. No. 182/2011 412/2012 Government of Pakistan versus Dr. Dismissed. 148/2011 Abdur Rasheed.

10.R.F.A. No. 184/2011 Nil. Government of Pakistan versus Haji Dismissed. 149/2011 Fateh Khan.

11.R.F.A. No. 186/2011 Nil. Government of Pakistan versus Ajoon Dismissed. 150/2011 Khan.

12.R.F.A. No. 188/2011 410/2012 Government of Pakistan versus Furqan Dismissed. 151/2011 Ali.

13.R.F.A. No. 189/2011 Nil Government of Pakistan versus Malik Dismissed. 152/2011 Shahwas Khan

14.R.F.A. No. 190/2011 234/2011 Government of Pakistan versus Johar Dismissed. 153/2011 and Khan.

15.R.F.A. No. 191/2011 53/2012 Government of Pakistan versus Dismissed. 154/2011 Khursheed Ali Khan.

16.R.F.A. No. 198/2011 149/2012, M.E.O. versus Said Ali Shah. Dismissed.

P/2014.

17.R.F.A. No. 199/2011 150/2012 M.E.O versus Mst. Bibi Shaista Faram Dismissed.

18.R.F.A. No. 202/2011 151/2012, M.E.O. versus Raj Muhammad Khan Dismissed.

19.R.F.A. No. 201/2011 152/2012 M.E.O versus Nizam ud Din. Dismissed.

20.R.F.A. No. 202/2012 153/2012, M.E.O versus Ahmad Sarwar Dismissed.

P/2014

21.R.F.A. No. 203/2011 154/2012, Government of Pakistan versus Mst. Dismissed. 166/2011 185/2012 Farhat Begum

22.R.F.A. No. 204/2011 155/2012, Government of Pakistan versus Tahir Dismissed. 167/2011 160/2012 Ameen.

23.R.F.A. No. 205/2011 156/2012, M.E.O versus Zahir Shah Dismissed.

24.R.F.A. No. 206/2011 85/2011 M.E.O versus Siranjam Khan Dismissed

25.R.F.A. No. 207/2011 158/2012, M.E.O versus Hassan Khan Dismissed

26.R.F.A. No. Nil 126/2014, Government of Pakistan versus Abdul Dismissed. 225/2012 387/2014 Wakeel Khan.

27.Objection Nil Nil Government of Pakistan versus Dismissed. Petition No. Ehsanullah.

8/2013 in R.F.A. No.

28.Objection Nil. Nil. Muhammad Issar versus Government of Allowed. Petition No. Pakistan.

7/2011 in R.F.A. No.

29.Objection Nil 109/2014 Ahmad Sarwar versus Government of Allowed. Petition No. Pakistan.

2/2012 in R.F.A. No.

30.Objection Nil. Nil. Raj Muhammad Khan versus Allowed. Petition No. Government of Pakistan.

3/2012 in R.F.A. No.

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31.Objection Nil Nil. Hassan Khan versus M.E.O. Allowed. Petition No.

8/2012 in R.F.A. No.

32.R.F.A. No. Nil Nil Furqan Ali versus M.E.O. Allowed.

33.R.F.A. No. 30/2011 Nil Muhammad Saeed Butt versus Land Allowed. 23/2011 Acquisition Collector

34.R.F.A. No. 66/2011 Nil Ehsanullah versus M.E.O. Allowed.

35.R.F.A. No. 67/2011 Nil Mst. Shaista Faram versus Government Allowed. 62/2011 of Khyber Pakhtunkhwa.

36.R.F.A. No. Nil Nil Abdul Wakeel Khan versus Government Allowed. 347/2012 of Pakistan.

JUDGE

JDUGE

Announced

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