MUHAMMAD NASIR MAHFOOZ, J:- Through this single judgment, I propose to dispose of titled RF A as well as; 1) RFA No.79-M/2012 titled Noor Habib & others Vs District Collector District Revenue Officer, Buner & others.
2) RFA No.81-M/2012 titled Govt: of Khyber Pakhtun Khwa through District Officer, (R&E) and others Vs Liaqat Ali Khan & others.
3) RFA No.82-M/2012 Govt: of Khyber Pakhtun Khwa through District Officer, (R&E) and others Vs Noor Habib and others.
4) RFA No.83-M/2012 titled Govt: of Khyber Pakhtun Khwa through District Officer, (R&E) and others Vs Mst.Basreen.
5) RF A No.9-M/2015 titled Govt: of KPK through District Of ficer (R&E) & others Vs. Bacha Said. as common questions of law and facts are involved in all these appeals.
2. Appellants/land owners in the instant appeal have impugned judgment & decree dated 25.09.2012 passed by learned Additional District Judge-II/Izafi Zilla Qazi/Judge Referee Court, District Buner in three connected objection petitions No.4/4, 7/4 and 8/4 of 2004 whereby on the acceptance of their objection petitions, the compensation of acquired land was fixed at Rs.224190.48/- per kanal in addition to 15 % compulsory acquisition charges.
3. Brief facts as per the instant appeals are that vide award announced on 10.09.2004, Collector District Buner acquired land comprising different khasra numbers 4084, 3236, 3232, 3231, 4085, 3229, 3228, 3327, 3330, 3328 and 3328 measuring 81 kanals & 14 and a half marla for the construction of Police Lines at Daggar, Buner. The rate per kanal was fixed at Rs.107513.81/- kanal. Objectors/land owners submitted their respective objection petitions, which were forwarded to the learned Referee Judge who seized off the matter framed 8 issues out of the contentions raised in the objection petition & reply of the of ficial respondents.
ISSUES. {{URDU TEXT}}
4. Since different land owners have separately filed their objections to the award, therefore, in addition to their own statements they have produced their own witnesses in support of their contentions but as this judgment is being announced in the instant R.F.A, therefore, the details of witnesses in this case are mentioned.
However, all the land owners are unanimous on the point that compensation for the acquired land fixed in the award is much below the actual market value & requested for enhancement to Rs.14,00,000/- per kanal.
5. Patwari Halqa appeared as P.W.1 who produced sketch of the suit property as well as one year average details of revenue record for the year 2003/2004 as Ex.P.W.1/1 to Ex.P.W.1/3. In his cross-examination he produced 1 year average for such land as Ex.P.W.1/D-1. P.W.2 Office Qanoongo, P.W.3 Clerk Land Acquisition and objector appeared as P.W.4. Objector/land owner was cross-examined who confirmed the contentions as raised in his objection petition & prayed for enhancement of compensation up to Rs.205817.38/- per kanal and also relied on Ex.P.W.1/1 wherein rate per kanal is Rs.250817.38. His statement was suppo rted by the other P.Ws. These witnesses were cross-examined from different aspects but they did not accept the contentions of acquiring department.
6. On behalf of the official respondents, clerk of the office of Deputy Commissioner appeared as D.W.1 & D.W.2.
D.W.1 produced record of the proceedings of acquisition as Ex.D.W.1/1 to Ex.D.W.1/10, similarly D.W.2 also supported the stand of Collector. Previously too the matter came up to this court and vide order dated 27.06.2012 this court remanded the case back to the learned Referee Judge with directions to appoint a local commission for ascertaining the market value of acquired property keeping in view the future potentiality and market value of the surrounding similar nature property.
7. In compliance thereof, during the proceedings, learned Referee Judge appointed one Mr.Sher Muhammad Khan, Advocate, as local commission with the direction to visit the spot and prepare report to ascertain the market value and potential value of the suit property. He prepared his report and ascertained the market value at Rs.1310761/- per kanal after relying on market value of mutations No.2813 attested on 25.01.2005, 3078 attested on 22.03.2006, 4151 attested on 21.09.201 1, 3809 attested on 26.05.2010, and 3007 attested on 22.11.2005 regarding surrounding khasra numbers.. His statement was recorded as C.W.1 and cross-examined by both the parties.
8. Learned appellate court has fixed Rs.223190.48 per kanal as market value of the suit property in addition to 15% compulsory acquisition charges through his impugned order. Aggrieved against the same, objectors/land owners and the government have also filed separate connected appeals which are being decided through this order.
I have heard arguments of the learned counsel for the appellants & learned A.A.G. for the official respondents who have strongly resisted the arguments raised by the appellants.
9. In order to ascertain market value of any property its proximity to the surrounding area is the best possible touch stone and only then the fixation of fair compensation could be properly determined. The suit property is being acquired for construction of police lines which is stated to be yards away and not kilometers away from the judicial complex of District Buner, besides other offices of the Government departments.
10. Respondents could not deny the suitability of the area for construction of Police Lines and so its potential value is much higher than any other area in the close proximity . It may be mentioned that in R.F.As No.32-M/2017 to 35- M/2017, R.F.A No.76- M/2017 and R.F.A No.14-M/2017 this court on 06.02.2017 has though fixed Rs.14,00,000/- per kanal as market value of the property acquired for construction of the same police lines, Buner but in those cases some additional land was acquired vide Award No.1 of 2013 and so market value was fixed according to the prevailing rate in the year 2013. In these cases, the award has been announced on 10.09.2004 which is about 9 years earlier and no doubt that the instant award is also issued for the construction of police lines, Buner but this is earlier to the said Award of 2013 so the rate prevailing in the year 2004 shall be considered as it is the requirement of law under section 23 of the Land Acquisition Act, 1894.
11. The learned Referee Judge has relied on the market value fixed in mutations No.2505 attested on 25.06.2003, 2493 attested on 15.08,.2003, 2494, 2507 and 2508 attested on 15.08.2003. Though the learned Referee Judge has referred to Ex.P.W.1/1 as a deciding factor for determination of market value of the suit property but failed to note that the market value assessed in Ex.P.W.1/1 is fixed at Rs.12540.86 per marla and Rs.250817.38 per kanal, which is quite different from the rate fixed and no explanation for not relying on this market value has been given in the impugned judgment. A court has either to accept a document as whole or reject a document as a whole, therefore, accepting the average as fixed in the above mentioned mutations by the officials of Revenue Department in Ex.P.W.1/1, I feel that the learned Referee Judge has committed material irregularity and illegality in fixing Rs.223190.48 which requires to be interfered with in the instant appeals. Whereas the market value fixed by the local commission is exaggerated because he has relied on mutations attested in the year 2005-2006 which are much later than the instant award so this could not be considered. The findings in the impugned judgment on issues No.5 & 6 are defective and requires to be interfered with.
12. Moreover, Hon'ble Supreme Court of Pakistan in a number of judgments considered the inflationary trends in the society while fixing compensation of acquired lands. In this respect reliance is placed on Sardar Muhammad Ashraf deceased Vs. Govt: of Khyber Pakhtunkhwa reported as (2011 SCMR 1244) and Govt: of Pakistan Vs. Ghulam Murtaza (2016 SCMR 1141) para No.9 is reproduced as under:- "Numerous judgments and dictas given and laid down by this court with binding and laying guiding principles on the subject issue have unfortunately been conveniently ignored by the Collector as he remained stuck to the one year average without taking care of present and future potentiality of the land acquired. It has been repeatedly laid down that being a compulsory acquisition of land for public purposes, the owners of the land are deprived of its utility while at the same time the Collector Acquisition simply impose their own opnion ordinarily based on one year average which is not a correct approach to the matter, as has been laid down by this court".
In another judgment titled Province of Punjab through LAC & another Vs. Begum Aziza reported as (2014 SCMR 75) relevant para is reproduced as under:- "The market value is normally taken up as one existing on the date of notifica tion under section 4 (1) of the Land Acquisition Act under the principle of willing buyer and willing seller while the potential value was the value to which similar lands 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 the aforesaid notification but its future value may be taken into account".
13. Having considered all the evidence on record and the material placed on file I would, therefore, allow the instant appeal as well as R.F.A No.79- M/2012 and fix the market value at Rs.250817.38 per kanal in addition to 15% compulsory acquisition charges modified to the said extent/set aside the judgment and decree of learned Referee Judge, while RFA No.81-M.2012, R.F.A No.82-M/2012, R.F.A No.83-M/2012 and R.F.A No.9- M/2015 are dismissed.