QALANDAR ALI KHAN, J:- The present revision petition by Abdur Razaq, petitioner, is the outcome of judgment and decree of the learned Additional District Judge, Battagram, dated 5.08.2008, whereby, while dismissing appeal of respondents No.1, 2, 3 / appellants, determined compensation of the land in occupation of the respondents/appellants at the rate of Rs.65,000/- per 'Kanal' with 15% compulsory acquisition charges and 6% simple interest from the date of taking possession of the suit land; as against the determination of compensation at the rate of Rs.370,212/- per 'Kanal' and total amount of Rs.2,199,993/- for total area of 7 'Kanals' by the learned Civil Judge-II, Battagram vide his judgment and decree dated 14.12.2004.
2. Arguments of learned counsel for the parties were heard and record perused.
3. The petitioner/plaintiff had lodged suit against respondents/defendants for declaration in respect of the suit land measuring 7 'Kanals' on the ground that initially notification under section 4 of the Land Acquisition Act was issued for the acquisition of the land in question and on the basis of the notification, possession of the land was taken without payment of compensation to him and even construction was raised by the latter. The said Notification was however cancelled later on, but neither the land was returned to the petitioner/plaintiff nor compensation was paid to him despite the fact that respondents/defendants had raised construction on the suit land and were also making use of the same while depriving the petitioner/plaintiff of its usufruct. Besides praying for perpetual injunction, the petitioner/plaintiff also prayed for payment of the present market value of the suit land at the rate of RS.400,000/- per 'Kanal' and other compulsory charges in the alternative. The suit was resisted by the respondents/defendants No., 2, 3 and in their written statement, they not only disputed the ownership of the petitioner/plaintiff but also alleged that they had already deposited compensation amount of Rs.210,000/- but the petitioner was not willing to accept private transaction regarding the suit land with his younger brother, Dr. Abdul Khaliq, who was medical officer in BHU Pagora. The respondents/defendants claimed that millions of rupees were spent on the construction of BHU for public welfare with the consent of the petitioner/plaintiff. They denied the contention of the petitioner/plaintiff that the suit land was situated in commercial area and had potential values and claimed that the land was situated 6/7 kilometers away in village Pagora from Battagram Bazar and headquarter. As many as eleven issues were framed and after recording evidence of both the parties and inspection of the land through local commission, the learned Civil Judge-II, Battagram, through his judgment and decree dated 14.12.2004, found relief claimed in 'Alif' and 'Bay' of the plaint in favour of the petitioner/ plaintiff. The respondents/defendants, mentioned above, dissatisfied with the judgment and decree dated 14.12.2004 of the learned Civil Judge-II, Battagram, lodged appeal, which was disposed of by the learned Additional District Judge, Battagram vide his impugned judgment and decree dated 5.08.2008, thereby holding the petitioner/plaintiff entitled to the possession of the suit land or compensation in the alternative. The learned Additional District Judge, Battagram declared that if the respondents/defendants wanted to retain possession of the suit land they ought to pay compensation to the petitioner/plaintiff of the area in their possession at the rate of RS.65,000/- per 'Kanal' with 15% compulsory acquisition charges and 6% simple interest from the date of taking possession of the suit land or that they could initiate fresh acquisition proceedings, if they considered the same to be in the public interest in accordance with law.
4. The learned counsel for the petitioner/plaintiff, at the outset, stated at the bar that since construction has been raised on the suit land and BHU is operational, without lawful acquisition of the land or payment of compensation to the petitioner/plaintiff, he would not stress on the relief of return of possession of the suit land to the petitioner/plaintiff and would, rather, urge compensation for taking unlawful possession of the suit land from the petitioner/plaintiff by the respondents/defendants, and also making use of the land in question. The learned counsel pointed out that the learned Additional District Judge, Battagram while taking into consideration Ex.PW 1/4 and Ex.PW 3/D-2 fixed price of the land at Rs.65,000/- per 'Kanal' but the learned Appellate Court totally overlooked this aspect that the respondents/defendants illegally took possession of the suit land despite cancellation of notification under section 4 of the Land Acquisition Act, and unlawfully raised construction and have been making use of the suit land, while depriving the petitioner/plaintiff of its use and usufruct. Therefore, determination of compensation on the basis of one yearly / five yearly average without consideration of nature and location of the land would not be justified. The learned counsel further pointed out that the trial Court also appointed local commission which assessed value of the suit land on the basis of five yearly average from 1998 to 2003 at the rate of Rs.419,046/- per 'Kanal', total value of land measuring 7 'Kanals' at the rate of Rs.2,933,322/- but, nevertheless, the learned trial Court based his assessment on three years average (Ex.PW 3/9) and assessed the value per 'Kanal' at the rate of Rs.370,212/- and assessed total value for the suit land measuring 7 'Kanals' at Rs.2,199,933/-, while erroneously assessed value of per 'Kanal', per Ex.PW 3/8 at Rs.370,212/-, though per 'Kanal' per Ex.PW 3/9 was assessed at Rs.314,284.80.
5. In the circumstances, when both the trial and Appellate Courts arrived at concurrent findings that without proper acquisition of the suit land, taking possession of the same, raising construction thereon and making use of the land in question by the respondents/defendants had no justification, whatever, in law and therefore the petitioner/ plaintiff was entitled to the possession of the suit land or its compensation if the respondents/defendants wanted to retain its possession; and when they have nowhere expressed their intention to part with the possession of the land and construction raised thereon, they are legally and morally under obligation to pay reasonable compensation to the petitioner/plaintiff . Keeping in view location of the land and its potential value, together with the loss suffered by the petitioner/plaintiff due to forcible occupation of the land by the respondents/defendants despite cancellation of notification under section 4 of the Land Acquisition Act, the compensation determined by the learned Civil Judge on the basis of record placed before him, and also accepted as reasonable by the petitioner/appellant, appears more akin to the demands of justice and good conscience; whereas the assessment of the learned Appellate Court on the basis of probable market value of the suit land in the year 1990 at Rs.65,000/- per 'Kanal' appears to be bereft of application of judicial mind to the facts and circumstances of the case as well as ground reality.
6. As a sequel to the above discussion, on the acceptance of the instant revision petition, the judgment and decree of the learned Additional District Judge, Battagram/Appellate Court dated 05.08.2008 is modified to the extent of assessment of compensation rate of the suit land as RS.65,000/- per 'Kanal' and while restoring the judgment and decree of the learned Civil Judge-II, Battagram / trial Court in respect of assessment of the compensation amount, the value of the suit land is fixed at Rs.314,284.80 per 'Kanal' and therefore the total compensation amount of suit property measuring 7 'Kanals' at Rs.2,199,933/-.
7. The revision petition is disposed of accordingly.