Ajmal Khan vs Govt.of KPK etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

R.F.A No. 404-P/2010

JUDGMENT

Date of hearing: 11.2.2015

Appellant: (Ajmal Khan) by Mr. Jehanzeb Buneri, Advocate.

Respondents: (Provincial Government of Khyber Pakhtunkhwa & others) by Mr. Sabir Shah, A.A.G.

HAIDER ALI KHAN, J.- Through this single judgment we shall dispose of the instant appeal as well as R.F.A No. 498-P of 2010 titled “Provincial Government of KPK and others Vs. Ajmal Khan” as both the appeals are the outcome of one and the same judgment and decree dated 31.7.2010 of the learned Senior Civil Judge/Referee Judge Land Acquisition, Buner.

2.Brief facts of the case are that land owned by the appellant comprising Khasra Nos. 3222 and 3223 measuring 15 Kanal and 16 Marlas situate in District Buner was selected by the Provincial Government for construction of Agriculture Research Center and for acquiring the same a five-members committee was constituted Tajamul Khan/SSS* [R.F.A No. 404-P/2010 Ajmal Khan Vs. Govt. of KPK & others]

which after holding several meetings, unanimously decided to fix the price of the said land as Rs.2,75,000/- per Kanal because of its potentiality while price of other lands was fixed as Rs.2,39,000/- per Kanal. Afterwards, for the reasons best known to the respondents, the District Collector Buner through his award dated 21.8.2008 fixed a low and nominal price of the acquired land of the appellant.

Dissatisfied with the award, the appellant filed an objection petition before the Senior Civil Judge/Referee Court, Buner wherein he prayed that as the price fixed by the respondents is less and nominal, therefore, the same be enhanced to Rs.2,75,000/- per Kanal. The respondents contested the objection petition by filing reply of the same wherein they raised several factual and legal objections. After framing of issues and recording pro and contra evidence, the learned trial Court accepted the objection petition of the appellant vide its judgment dated 31.7.2010 and enhanced price of the acquired land at Rs.15000/- per Kanal. Feeling aggrieved of the said judgment, the appellant has assailed it through the instant appeal while the respondents have challenged the same through R.F.A No. 498-P/2010.

Tajamul Khan/SSS* [R.F.A No. 404-P/2010 Ajmal Khan Vs. Govt. of KPK & others]

3.Learned counsel for the appellant contended that the acquired property is the most valuable in the vicinity and situated on the road, therefore, keeping in view its potential value the enhancement in compensation thereof by the learned Referee Judge is against the facts and material available on the record. Further contended that the appellant has proved through cogent evidence that the market price fixed by the respondents is not just and the respondents have resiled from the price formerly agreed upon by the parties, therefore, the appellant is entitled to receive Rs.2,75,000/- per Kanal as market price of his land.

4.Conversely, learned A.A.G. appearing on behalf of the respondents argued that the District Collector has fixed appropriate market price of the acquired land on the basis of one year average and the learned Referee Judge has unlawfully enhanced the same at the rate of Rs.15000/- per kanal, therefore, judgment of the learned Referee Judge is liable to be set aside and price of the acquired land be fixed at Rs.2,39,000/- per Kanal.

5.Arguments heard and record perused.

6.Perusal of the record would show that from the very beginning the appellant demanded Tajamul Khan/SSS* [R.F.A No. 404-P/2010 Ajmal Khan Vs. Govt. of KPK & others]

Rs.300,000/- per kanal as compensation of his land, however, the Secretary Agriculture, Livestock and Cooperative Department Government of NWFP set up a high level committee vide notification Res-23/2008 dated 07.4.2008 for negotiating the purchase rate with the owners/appellant for establishing Agricultural Research Center at Buner comprising the Director General, Agricultural Research System as chairman and (i) Chief Planning Officer, Agriculture Department (ii) Director Agricultural Research Station, Swat (iii) District Revenue Officer, Buner (iv) District Officer, Agr.

Extension, Buner as its members. The said committee unanimously fixed Rs.2,75,000/- per kanal as the market price of the acquired land of the appellant. It is noteworthy that the land belonging to the appellant was selected out of five selected sites on the basis of soil texture and soil quality of the land as first priority by the said committee. The relevant portion of the notification issued by Director Agriculture Research Institute North, Swat, is reproduced herein below:-

“The committee unanimously decided to agree on the final rates quoted by the farmers given as under:

Tajamul Khan/SSS* [R.F.A No. 404-P/2010 Ajmal Khan Vs. Govt. of KPK & others]

(i)Land of Mr. Ajmal Khan 15 Kanal 16 Marlas Rs.275000/- per Kanal.

(ii)Land of Amir Akbar Khan 24 kanal 7 Marlas Rs.239000/- per kanal”

The committee, constituted for the purpose, was duly authorized to fix the market price of the acquired land and it has specifically mentioned in their report the reason for fixation of higher price of the appellant’s land in the following words:-

“therefore, the higher price of Rs.275000/- per kanal for the land of Mr. Ajmal Khan is proposed because it is lying alongside the road”

Perusal of the record shows that contention of the appellant to demand Rs.2,75,000/- per kanal on the basis of the above mentioned documentary proofs has also been supported by the officials of Agriculture Department, therefore, the appellant is entitled to receive just and reasonable market price of his land. Record further shows that land of the appellant is commercial in nature as the same situates alongside the road, therefore, the appellant is justified to demand higher price of his land as compared to other lands situated away from the road. While issuing the disputed award, the District Collector has not considered the potentiality of the acquired land of the appellant and has fixed the same sale price on the basis of one year average for all the acquired lands irrespective of their Tajamul Khan/SSS* [R.F.A No. 404-P/2010 Ajmal Khan Vs. Govt. of KPK & others]

nature and location. Moreover, the appellant has received the low sale price of Rs.2,39,000/- per kanal as protest as is evident from his statement which shows that the price was compulsorily paid to him.

7.For what has been discussed above, we are of the considered view that land of the appellant has not been acquired in accordance with the approval of the high level committee constituted for the purpose of just and reasonable compensation, therefore, this appeal is allowed, the impugned judgment and decree of the Referee Court is set aside, market price of the acquired land of the appellant is enhanced to Rs.2,75,000/- per kanal according to the approved rates with 15% compulsory land acquisition charges. The respondents are directed to make the remaining payment accordingly. Similarly, the connected R.F.A No. 498-P/2010, being bereft of any merit is dismissed.

Announced.

Dt: 11.2.2015.

JUDGE

JUDGE

Tajamul Khan/SSS* [R.F.A No. 404-P/2010 Ajmal Khan Vs. Govt. of KPK & others]