MUHAMMAD NAEEM ANW AR, J. This single judgment in the instant petition shall also decide the connected W.P No.274-M/2022 titled "Hassan Ali and another Vs. Government of Khyber Pakhtunkhwa throug h Chief Secretary and others" as an identical question of law and facts is involved in both the petitions.
2. By invoking the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have questioned the legality and validity of notification No.27299/204/Acq/DC(S) dated 16.08.2021, with further prayer in terms of directing respondent No.3 for acquisition of land of the kind of 'banjar' instead of the agricultural owned by them.
3. Facts lying in the background of the instant petition are that the petitioner is the resident of Sambat, Tehsil Matta , District Swat. As per his contention, he is owner of the properties situated in the revenue estate of Sambat; that he is office bearer of Jamiat Ulema-e-Islam (JUI) of the Constituency of PK-09 (Swat), to which Chief Minister of the Province belongs and that he is social and political worker of the locality , as such, he plays a key role in the welfare of the society . He has challenged notification dated 16.08.2021 issued u/s 4 of the Land Acquisition Act, 1894 (the Act of 1894) for the purpose of "PURCHASE OF LAND FOR MUNICIP AL GRA VEYARD AT MOZA SAMA T TEHSIL MATTA DISTRICT SWAT BY TMA MATTA SHAMIZAI SWAT" on the ground that through another notification bearing No.27672/82/Acq/DC(s)Nol-III-dated 23.08.2021, land was acquired for the purpose of "BAGH DHERAI FLOW IRRIGA TION SCHEME DISTRICT SWAT (RURUSKHLE BALA + DURUSHKHELA PAYEEN + BAIDARA + SAMBA T + KHARERAI)" , wherein the property bearing Khasra No.470 owned by him was acquired which is contiguous to property bearing Khasra Nos. 457 & 458 measuring 05-kanal and 04-marla and 02-kanal, respectively , the nature of which from `sadin' and `banjar qadeem' has been changed after the construction of water channel and as such now his property is being irrigated through the canal, for which, earlier land was acquired and construction of the canal was completed. It was also alleged that there is a suitable non-agricultural property owned by the residents of village Sambat , especially the property of Shamilat , as such, his property , which is agricultural one, could not be acquired in accordance with the provisions of the Khyber Pakhtunkhwa Land Acquisition Rules, 2020 (the Rules of 2020) . He also alleged that not only the provision of section 17 of the Act of 1894 was violated but the process of the acquisition is also in negation of the Rules of 2020, hence, this petition.
With almost similar prayer , the connected petition has been filed by the petitioners of the connected petition.
4. Respondents were put on notice, who in response to the notice appeared and submitted their parawise comments, wherein they have opposed the issuance of writ on various legal and factual objections.
5. Arguments heard and record perused.
6. In view of the contention of learned counsel for the petitioner , the points for determination in the matter are: i. Whether the property owned by the petitioner bearing Khasra No.457 & 458 is agricultural? ii. If point No:1 is decided in positive, whether the property of the petitioner is being irrigated from the canal of Bagh Dherai Flow Irrigation Scheme District Swat? and iii. Whether the respondents have violated the provisions of section 17 of the Land Acquisition Act, 1894 or the process of acquisition is in negation of the provisions of the Khyber Pakhtunkhwa Land Acquisition Rules, 2020?
7. Though, the petitioner has annexed an extract from the jamabandi for the year 2012-13 of the revenue estate of Samba t, however , Patwari Halqa appeared before the Court in connection with instant case, and stated at the bar that as reflected from the extract of periodical record for the year 2012-13, the nature of the property bearing Khasra No.457 measuring 05-kanal 02 Marla is `sadin' whereas Khasra No.458 measuring 02-kanal is 'banjar qadeern' . The contention of the petitioner that the nature of the property has been chan ged at the spot due to construction of canal for the purpose of irrigation, for which, property bearing Khasra No.470 owned by the petitioners was also acquired, has been refuted by the respondents. Aks Shajara-i-Kishtwar and for that matter , the location of the properties at the spot, pertaining to the flow of water would be the determining factor for flow of water toward the properties of the petitioner bearing Khasra No.457 & 458, the nature of which was reflected in the revenue papers as sadin (barani) and banjar qadeem . Official of the revenue hierarchy/Patw ari Halqa of the revenue estate of Sambat stated at the bar that the properties owned by the petitioner i.e., Khasra No.457 & 458 are not being irrigated from the canal because both the Khasra numbers owned by the petitioner are situated upward to Khasra No.470. This question about the change of nature of the property at the spot cannot be determined through instant petition as it requires recording of evidence and spot inspection in terms of Order XXVI Rule 9 read with section 75 of the Code of Civil Procedure, 1908 (C.P.C). Apart from above, Aks az masavi or Shajara-i-Kishtwar for determination of the contiguity of the property owned by the petitioner and Khasra No.470, acquired for the purpose of construction of Bagh Dherai Flow Irrigation Scheme District Swat, though placed on record by the of ficial respondents does not support the version of the petitioners.
8. No doubt, the petitioner is the purchaser of Khasra No.457, 458 & 469, where from 01-kanal property has already been sold by him through mutation No.6478 dated 24.08.2021, whereas from Khasra Nos. 457 & 458 along with other property total measuring 45-kanal and 16.82-marla were notified was the subject of impugned notification dated 16.08.2021, for the purpose of "MUNICIP AL GRA VEYARD AT MOZA SAMA T TEHSIL MATTA DISTRICT SWAT BY TMA MATTA SHAM IZAI SWAT". But the intriguing aspect is that the instant petition was filed on 30.10.2021, the respondents were put on notice who submitted their parawise comments and through C.M No.683-M/2021 , they have also placed on file certain documents, which reflect that award No.38483/204/Acq/DC(S) dated 12.11.2021 u/s 11 of the Act of 1894 has already been issued for the purpose of "MUNICIP AL GRA VEYARD AT MOZA SAMA T TEHSIL MATTA DISTRICT SWAT BY TMA MATTA SHAMIZAI SWAT", by which Khasra Nos. 446, 448, 451, 452, 453, 454, 455, 457, 458, 459, 460, 461 & 498 of the locality of moza Sambat measuring 45-kanal 16.82-marla has been acquired and kind of land, area, ausat yaksala and compensation of the property has been particularized in headnote No. A of the award, which, for ready reference, is reproduced as under: A. Revised Cost of land Moza Kind of landArea proposed to be acquiredAusat Yaksala rate per kanalValuation Table rate per kanalLand Compensation etc Kanal Marla Sambat Sadin 17 2.82 1305277.6/- -- Rs.2,23,73,763.34 B. Qadeem 2 14 12,12,312/- Rs.32,73,242.4/- D.
Charagah26 0 70000 TOTAL Rs.2,74,67,006/- Cost of land....... Rs.2,74,67,006/- 15% CAC............ Rs.41,20,051/- 02% Stamp Duty ........... Rs.5,49,340/- Grand T otal......... Rs.3,21,36,397/- B. Compensation of Non Fruit trees per assessment report of....... Nil C. Compensation of Fruit trees per assessment report of......... Rs.1,58,728/- D. Compensation of objects damaging in the scheme of per report of Public Health Engineering, Swat.......... Nil E. Cost of Structure/Superstructure per estimate of C&W , Building Division, Swat...... Nil.
Grand T otal (A+B+C+D & E) .......... Rs. 3,22,95,125/- Outstanding amount......... Rs.5,49,340/-"
9. The schedule as reproduced above, promulgates that 17-kanal and 02.82-marla land is sadin (barani), 02-kanal & 14-marla is banjar gadeem and 26-kanala is Dhaka Charagah , for which, total amount of Rs.3,21,36,397/- has been fixed as compensation and deposi ted the amount of compensation etc vide cheque bearing No. A471 184 dated 28.09.2021, whereas only the remaining amount of Rs.5,49,340/- which is 02% Stamp Duty of total amount, has not been deposited yet. One of the arguments of learned counsel for the petitioners was non-deposition of compensation fixed in terms of section 23 of the Act of 1894, but the contention of the petitioner was repelled from the contents of the award. These documents were placed on record by the respondents through C.M No.683- M/2022 on 24th March, 2022, even then neither the issuance of award nor any other notification issued after filing of these petitions has ever been challenged by the petitioners.
10. Moreover , learned counsel for the petitioners strenuously criticised the proceedings conducted by the acquiring agency , while referring to the proviso to sub-section 1 of Khyber Pakhtunkhwa Amendment of section 17 in the Act of 1894 that unless the amount of compensation, in view of provisions of sections 23 & 24 of ibid Act is determined and deposited, no proceedings could be conducted. Not only the compensation of the property has been determined but it has also been deposited and when learned counsel for the petitioners was confronted with this legal and factual aspect, he was unable to answer .
11. Besides above, another objection was that no notice was issued to the petitioners who were the owners and interested persons of the property in order to submit their grievance in term of objection under the provision of ibid Act, suffice is to say that the impugned notification u/s 4 of the Act was issued 16.08.2021 whereas the instant petitions was filed on 30.10.2021 while connected petition on 22.03.2022, as such, this objection of the petitioners is also not sustainable because they could approach to the authority and submit their objection u/s 5-A or under other relevant provision of the Act of 1894 till the issuance of the award. Even after the issuance of award dated 05.11.2021, the petitioners could challenge it u/s 18 or 30 of the Act of 1894 before the competent forum either within six weeks or six months, as the case may be, because they alleged that they were not served with a notice, their objection could be filed, entertained , tried, if filed within a period of six mont hs. A complete mechanism has been provided for redressal of grievance for an aggrieved person under the provisions of the Act of 1894 but the petitioners have not adhered to it.
12. Last submission of learned counsel for the petitioners was the violation of the provisions of Para No. V (Supplemental proceedings) under rule 31 of the Rules of 2020. Before discuss ing it legal aspect, it would be appropriate to reproduce Rule No.31, which reads as under:
31. Certificates by the Collector . While forwarding the draft notification under section 5 or section of the Act to the Commissioner , the Collector shall keep in view the considerations and append the following certificates with the case namely; a certificate to the effect that estimated cost as worked out under clause (d) of sub-rule 17 has been physically placed at the disposal of the Land Acquisition Collector and deposited in the Treasury under the Head "Revenue Deposit" as security for payment compensation; a certificate to the effect that the land is not agricultural, if no other land is available except agricultural land, a certificate may be given that endeavors were made to select the less productive land for acquisition; a certificate to the effect that any State or waqf or evacuee land, tomb, graveyard or place of religious character has not been included in the draft notification; a certificate to the effect that endeavors to obtained land through private negotiations have been unsuccessful or have been considered inexpedient; a recommendation to the effect that the area sought to be acquired is not exce ssive and is reasonable for the purpose of declaration under section 6 of the Act or for taking possession under section 17 of the Act; site plan of the land involved; and the classification of the land, i.e. whether ghairmumkin or banjar , culturable or under cultivation, whether irrigated or not and its distance from the main road and town to enable the Commission to form an opinion whether it would be proper to acquire such land or whether the possibility of acquiring some other less valuable land needs to be explored to minimize loss to the agricultural economy ."
The bare perusal of the above reproduced rule reflects that requisite certificates were required to be considered by the Collector . The official respondents through C.M No.683-M/2022 have annexed the certificates within the parameters of rule 31 of the Rules of 2020, which were issued from the office of Deputy Commissioner on 15.10.2021 i.e., urgency certificate, fund certificate, certificate regarding State/ Waqf/Evacuee land and the award reflects that the property owned by the petitioners is non-agricultural. Goshwara in respect of the acquired property for the purpose of graveyard has also been annexed with the comments by respondent No.3, which depicts that the properties, which were acquired, were of the kind of Dhaka Charagah, sadin and banjar qadee m from total thirteen Khasra numbers , wherein not even a single Khasra number is of the kind of agricultural land, as per the contention of the respondents. Furthermore, on the directions of this Court, Tehsildar Matta, Assistant Commissioner Matta and Patwari Halqa Sambat appeared before the Court and a coloure d copy from masavi of first ever settlement i.e., 1981-82 was also placed on record alongwith Aks Shajara-i-Kishtwar but even from these documents, the petitioners could not substantiate their contention regarding the irrigation of land and the nature of land etc.
13. Insofar as, the objection of the adde d private respondents that the proposed graveyard is far away from the village and that there are considerable properties in the shape of shamilat property owned by the proprietors of village Sambat is concerned, the particulars of added respondents reflect that they are the residents of Sambat , Cham Rahim Abad, Teshil Matta, District Swat, whereas the graveyard, as per record, is a Municipal Graveyard at Moza Sambat, Tehsil Matta, District Swat by the T.M.A Shamizai , which is not exclusive for the residents of any particular village, rather it may be for the territory of any Patwar circle or Moza Sambat. Likewise, the contention of the petitioners that shamilat-e-deh is suitable place for the purpose of graveyard, suffice it to say, it was the consideration of the acquiring agency keeping in view the nature of the public purpose, for which, they proposed a particular site, process was completed and ultimately the award was issued but neither the petitioners nor the residents of Sambat Cham Rahim Abad or anyone else, as per the available record, approached to the authorities concerned for redressal of their grievance, if any. Neither the petitioners nor added respondents who were supporting the petitioners' contentions have been able to establish the violation of law, the infringement of their fundamental rights or contravention of the statutory provision i.e., the Land Acquisition Act of 1894 and the Khyber Pakhtunkhwa Land Acquisition Rules, 2020, as such, the petitioners have not been able to make out a case for issuance of the writ.
14. When so, these petitions, being without merits, are hereby dismissed.