IRSHAD HASAN KHAN, C.J.---Through this common judgment, we intend to dispose of the above appeals which, in their own turn, have arisen out of two separate judgments dated 3-2-1999 and 4- 2-1999 of the Peshawar High Court, Peshawar, passed respectively in two batches i,e, R.F.As. Nos. 56, 64, 77 and 81 of 1992 and Nos.24, 25, 26, 32, 43, 51, 78 and 90 of 1992.
2. The background in which the acquisition of land proceedings made progress before the appellants-authorities in two batches may be recapitulated, to begin with.
(A) .1st batch--R.F.As. Nos.56, 64, 77 and 81 of 1999 In the first batch of appeals, the Land Acquisition Collector/Deputy Commissioner, Abbottabad, issued a notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) indicating the intention of the Government to acquire land measuring 5586 Kanals 12 Marlas situated in village Kot Najibullah for the purpose of setting up an Industrial Estate. Out of this area, land measuring 3290 Kanals, 12 Marlas was acquired through Award No,1 dated 21-6-1986. Later, the Department reduced its demand to 903 Kanals, 13 Marlas for which combined notification under sections 6 and 7 of the Act was issued by the Commissioner, Hazara Division, Abbottabad on 22-4- 1997 and through Award No,2 dated 22-6-1988, the Land Acquisition Collector acquired the land on the following rates: Unirrigated land Charri Rs. 21,914.40 per Kanal Kund Rs.10,957.20 per Kanal Maira Rs. 8,217.90 per Kanal Banjar Qadeem/ Ghair MumkinRs.2,739.30 The judgments and decrees dated 28-3-1992 and 25-4-1992 of the learned Referee Judge were successfully impugned by the landowners in appeals before the High Court vide common judgment dated 11-10-1995. The judgment of the High Court was challenged by the Land Acquisition , Collector/Deputy Commissioner, Abbottabad and this Court while allowing the appeals set aside the common judgment of High Court dated 11-10-1995 and remanded the case to the High Court for decision afresh after adverting to the evidence on record and to re-assess the market value of the acquired land in view of this Court's judgment in Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCM R 2164).
(B) 2nd batch--R.F.As. Nos.24, 25, 32;43, 51, 78 and 90 of 1992 In the second batch of appeals, the Land Acquisition Collector/Deputy Commissioner, Abbottabad issued Notification under section 4 of the Act on 15-1-1987 for the acquisition of land measuring 272 acres and 6 Marlas (2176 Kanals, 6 Marlas) of village Kot Najibullah, Tehsil Haripur for the purpose of setting up an Industrial Estate. Subsequently, the demand was reduced to 1004 Kanals, 12 Marlas for which Notifications under sections 6 and 7 of the Act were issued by the Commissioner, Hazara Division, Abbottabad. On 19-5-1987. Later on, Award No,3 was announced on 22-6-1988 for the acquisition of 1004 Kanals, 12 Marlas of land on the following rates: "Irrigated Land Maira Rs.10,889.10 per Kanal Ghair Mumkin etc. Rs.3,629.70 per Kanal Rakkar Rs.7,259.40 per Kanal Unirrigated Land Charri. Rs. 19,358.40 per Kanal Kund.. Rs. 9,679.20 per Kanal Maira. Rs. 7,259.40 per Kanal Rakkar Rs. 4,839.60 per Kanal Banjar Qadeem/ Ghair Mumkin Rs. 2,419.80 per Kanal The landowners preferred objections with regard to wrong classification of land and inadequate nature of compensation for the same. The Referee Judge proceeded with dismissing the same through judgments and decrees dated 29-1-1992, 1-2-1992 and 27-4-1992. Feeling dissatisfied, the landowners preferred Regular First Appeals Nos.24, 25, 26, 32, 43, 51, 78 and 90 of 1992 before the Peshawar High Court contending that Khasra numbers mentioned in their respective causes be classified as Nehri/Commercial lands and the compensation allowed at the rate of Rs,2,00,000 per Kanal alongwith compulsory acquisition charges and compensation. The High Court accepted the appeals through a common judgment dated 11-10-1995. The claim of the landowners regarding wrong classification of soil and enhancement of rates were accepted as under:- "Unirrigated Land Charri. Rs. 35,333 per Kanal Maira Rs. 20,909 per Kanal Irrigated Land Charri. Rs. 35,333 per Kanal Maira Rs. 31,362 per Kanal.
3. As already mentioned under Para.2(A) above, the Government of N.-W.F.P. Questioned common judgment dated 11-10-1995 before this Court. Through judgment dated 19-5-1995 reported as Land Acquisition Collector/Deputy Commissioner, Abbottabad and others v. Sardar Muhammad Safdar Khan and others (1998 SCM R 2142) this Court set aside the impugned common judgment of the High Court and remanded the cases with the observation that the judgment Jacked reference to the evidence on the record and the unreported judgment in the case of Sarhad Development Authority v. Sardar Fakhre Alam in R.F.A. No,3 of 1991 could not be made the basis for the purpose of assessing the market value of the acquired land in view of this Court judgment in Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCM R 2164).
After remand:
4. After the remand, the High Court proceeded with passing the impugned judgments dated 3-2- 1999 and 4-2-1999. The operative portion of the impugned judgment dated 3-2-1999 reads thus:
(A) From judgment dated 3-2-1999 in R.F.A. No,56 of 1992 "10. Coming to the question of determining the proper rate of compensation for the land acquired, it may be mentioned that the Land Acquisition Collector has fixed Rs,5,478.60 per Kanal as major portion of the land acquired was 'Maira'. Exh.OW1 /R1 is the sale average of the sales mutations in respect of the land situated in Kot Najibullah, effected during the period from 30-5-1984 to 29-5- 1985. According to this sale average the price per Kanal for 'Maira' land comes to Rs,5,478.60. In the same sale average the price per Kanal for 'Chahi' land comes to Rs,36,520. The Land Acquisition Collector in his Award has specified certain Khasras to be 'irrigated land'. In our view, when a land becomes 'Aabi' (irrigated) its original kind/classification is changed and, therefore, the same cannot be called as 'Maira'. The compensation for such land should be assessed as 'Nehri' lands are used to be irrigated through a canal let out from Khanpur Dam and, therefore, when 'Chahi' kind of land is sold at the rate of Rs,36,520 per Kanal in the years 1984-85, then the irrigated land through the canal at least should have been equated with the sale transactions of 'Chahi' lands in the area for the purpose of compensation. Therefore, the appellants whose irrigated lands have been acquired by the respondents are entitled to the receipt of compensation @ Rs,36,520 per Kanal, which is the rate specified in the one year sale average, Exh.OWl/R1, for 'Chahi' lands sold in the very said area.
11. With regard to the other kinds of land i,e, Charri, Kund, Maira and Ghair Mumkin/Banjar Qadeem we also find that the compensation awarded by the Land Acquisition Collector for such kinds of land is not based on any sound footings, as the Land Acquisition Collector has worked out the compensation on the basis of earlier Award No,1 announced on 21-6-1986 whereby an area measuring 3290 Kanals, 12 Marlas was acquired for the said purpose in the said area As is evident, the earlier award was announced on 21-6-1986 whereas the award in the instant case was announced on 22-6-1988 i,e, after a period of 2 years. It is also evident from the record that'the acquired land was having the potential value of becoming irrigated land in the future. Therefore, we are of the view that 25% increase on the rates already specified in Award No,2 for these kinds of land would be just and proper in the circumstances of the case. Hence after 25% increase the following rate of compensation is fixed: Charri. Rs. 18,262 per Kanal Kund Rs. 9,130 per Kanal Maira Rs. 6,847 per Kanal Ghair Mumkin/banjar Rs.2,282 per Kanal.
(B) Order dated 4-2-1999 reads thus: Arguments heard. For detailed reasons to be recorded in R.F.A. 24 of 1992, the appeal is partially accepted, the impugned judgment and decree dated 29-1-1992 is partially modified and the following rate is fixed for the property acquired: Charri/Irrigated Rs. 36,520 per Kanal The enhancement qua Charri, Kund, Maira, Rakar, Banjar Qadeem and Ghair Mumkin classification is hereby declined and the rates already fixed by the Collector and the Court of Reference are upheld. The parties are left to bear their own costs."
5. Hence these appeals.
6. Mr. M.Sardar Khan, learned Senior Advocate Supreme Court appearing on behalf of the appellants raised the following contentions:
(i) The High Court fell in error in treating Khasra No,2469 as 'irrigated land' because the onus to prove that it was 'irrigated', lay on the landowners-respondents who had failed to discharge the same. In this context he drew our attention to the cross-examination of Abdul Qayyum, Patwari, Halqa Kot Najibullah (0W-1) wherein he has stated that the suit property consisted of Maira/Charri kind of land as well as to the cross-examination of Habibur Rehman, HBC (OW-2) containing an admission that Khasra No,2469 is Maira in kind. He also referred to the statement of Sardar Muhammad Shafqat respondent/landowner (OW-3) in his cross-examination that the entire property under reference was irrigated and though other co-owners were paying 'Abiana', he had neither paid the same nor was in possession of any receipt in that behalf.
(ii) The High Court had not only wrongly classified Khasra. No,2469 and some other Khasra numbers as 'irrigated' but had also fallen in error by fixing the rate of compensation at Rs,36,520 per Kanal on the basis of 'Chahi' kind of land mentioned in 'Aust Yaksala' Exh.OWl/R1 as there was no mention of 'Chahi' kind of land in that Exhibit. Referring to copy of Exh.OWl/R1 at pages 38 to 45 of Part II of Paper Book in Civil Appeal No,1450 of 1999 it was contended that the High Court had fixed the market value of 'Chahi' kind of land by misreading and misconstruing the contents of the above document. Elaborating his contention it was submitted that in the said document only 2 Mutations, mentioned at Serial Nos.14 and 44 i,e, 3061 and 3112 pertain to 'Chahi' kind of land and the total area mentioned therein comes to 2 Kanals, 11 Marlas. Total price of the above parcels of land comes to Rs,16,000, therefore, the price of one Kanal 'Chahi' land is Rs,6,276. However, at the fag- end of the document, the sale price of 'Chahi' kind of land was shown as Rs,36,520 without disclosing any basis therefor.
(iii) He concluded his arguments by submitting that the High Court was misled by Exh.OWl/R1 in treating the average sale price of 'Chahi' kind of land at Rs,36,520 per Kanal. The rate of 'Chahi' kind of land fixed by the Land Acquisition Collector as Rs,21,914 per Kanal was fair and reasonable and was the best assessm ent. The Land Acquisition Collector had inspected the spot and, as a result thereof, fixed the price of 'Chahi' kind of land as Rs,14,609.60 per Kanal. While enhancing the above rate by 50%, the High Court had not fixed the rates of various kinds of acquired land in the light of the directions issued by this Court while remanding the appeals to it and had also not kept in view the rule laid down by this Court in Sardar Abdur Rauf Khan (supra). The High Court had erred in enhancing the compensation by 25% without recording any cogent reasons. The delay of two years was not to be 'calculated from 21-6-1986, when the first award was announced, but from 22-4-1987, when the combined notification was issued in the wake of incorporation of section 48-A in the Act, which reads as under: '48-A. Compensation to be awarded when land not acquired within one year.--(1) If within a period of one year from the date of publication of declaration under section 6 in respect of any land, the Collector has not made an award under section 11 in respect to such land, the owner of the land shall, unless he has been to a material extent responsible for the delay, be entitled to receive compensation for the damage suffered by him in consequence of the delay.
(2) The provisions of Part II of this Act shall apply, so far as may be possible, to the determination of the compensation payable under this section."
The learned counsel specifically mentioned to the date of issue of the combined notification i,e, 22- 4-1987 and the making of the Award on 22-6-1988, to contend that there was delay of only two months, therefore, the landowners were entitled to damages suffered by them, if any, to the extent of 2% to 3% and not to blanket increase of 25%. He contended that R.F.A. No,77 of 1992, giving rise to Civil Appeal No,1451 of 1999 was barred by 46 days and although the appellants before the High Court had made an application seeking condonation of delay, the High Court did not even so much as refer to the question of limitation.
7. Mr. Muhammad Younas Khan Tanoli, learned Advocate-General, N.-W.F.P. Has adopted the arguments addressed at the Bar by Mr. M. Sardar Khan.
8. Mr. Mansur Ahmed, learned Advocate Supreme Court appearing on behalf of the respondents/landowners has contended that the question of fact relating to the locale of Khasra No,2469 in the near vicinity of Khasra numbers which are 'irrigated'/'Aabi' was one of the factors which has been considered by the High Court in resolving the twin question of the nature of soil and the rate of compensation therefor. He referred to Province of Punjab through Collector, Bahawalpur District, Bahawalpur and others v. Col. Abdul Majeed and others (1997 SCM R 1692), Maqbool Ahmed Fatehally and others v. The Collector, District Lasbella and others (1992 SCM R 2342), Fazalur Rahman and others v. General Manager, S.I.D.B. And another (PLD 1986 SC 158 at 161), Collector, Land Acquisition, Mardan and others v. Nawabzada M. Ayub Khan and others (2000 SCM R 1322), Province of Punjab through Collector, Attock v. Engineer Jamil Ahmad Malik and others (2000 SCM R 870), Land Acquisition Collector, Rawalpindi and others v. Dina and others (1999 SCM R 1615), Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another (1999 SCM R 1647), Abdul Qayyum and 15 others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and another (1996 SCM R 1820), Sadiq Niaz Rizvi v. The Collector, District Lasbella and another (PLD 1993 SC 80), Market Committee, Kanganpur through Administrator v.
Rayyat Ali and others (1991 SCM R 572) and Sardar Abdur Rauf Khan (supra) to contend that while considering the question of compensation, the High Court has to keep in view the attending potentialities of the acquired parcel(s) of land. The High Court was right in computing the delay from the date of the first award and not from the date when section 48-A was inserted in the Act.
9. The learned counsel also contended that the land was acquired for establishing an Industrial Estate and after its acquisition the same is being sold to willing buyers at about Rs,1,00,000 per Kanal.
10, While exercising his right of rebuttal, Mr. M. Sardar Khan took the Rostrum and submitted that to his knowledge even after incurring heavy expenses on the development of the area in question, Sarhad Development Authority is disposing the property, in question w the rate of about Rs,1,70,000 per acre.
11. We have considered the arguments addressed at the bar and have also perused the available material with the help of the learned counsel for the parties. As regards the plea raised on behalf of the appellants that the High Court was in error in treating Khasra No,2469 and other Khasra numbers as 'irrigated' in view of the material on the record, we suffice by observing that after remand of the cases by this Court the High Court did consider the material on record; including the fact that during the period between the issuance of notifications under the Act and the making of the Awards, the value of the properties had considerably appreciated and the potentialities of lands in question to resolve the twin question relatable to the kind/classification of Khasras Nos.2469, 2372, 2377, 2467, 2378 and to the rate of compensation for the said Khasra numbers. The landowners had claimed the potentiality of the aforementioned Khasra numbers to partake of irrigated kind supported by documents pertaining to 'Chakbandi' placed on the records of the respective files. The conclusions reached by the High Court that the earlier classification of lands as Ghair Mazrua and Banjar Qadeem etc had become immaterial as the land was to be utilised for non-agriculture purpose i,e, for establishing an Industrial Estate and that when land becomes 'Aabi'
(irrigated) its original kind/classification is changed and, therefore, the same cannot be called as- 'Maira' have not shown to be violative of the principles enunciated in the precedents pressed into service by Mr. Mansur Ahmed generally and Sadiq Niaz Rizvi and Sardar Abdur Rauf Khan (supra) in particular. The learned Members of the Division Bench of the High Court were of the correct view that those landowners whose irrigated lands have been acquired by the respondents are entitled to- the receipt of compensation @ Rs,36,520 per Kanal, which is the rate specified in Exh.OWl/R1, for 'Chahi' lands sold in the very area.
12. Be that as it may, what meets the eye is that the fixation of the rates of compensation by the Land Acquisition Collector and the dismissal of the objections of the landowners by the Referee Court were not countenanced by the High Court after noticing the contents of the examination-in- chief as also the cross-examination of O.Ws. 1 to 3 and the perusal of Exh.OWl/R1. In relation to claims made by some of the landowners to classify some Khasra Numbers as 'irrigated', it was observed by the High Court that their such claims cannot be allowed. The specific observations by the High Court to the above effect read as under: "In R.F.A. No,25 of 1992, the three Khasra numbers 2317, 2316 and 2278 were not declared as irrigated land. Exh.OW.2/1 (Chakbandi) speaks that the Khasra numbers are at a sufficient distance from the canal. The Land Acquisition Collector has basically based his award on the report of Irrigation Department. No evidence whatsoever has been brought on record to prove that the said Khasra numbers were being irrigated. Mere inclusion of the said Khasra numbers in the 'Chakbandi' and that too when the said Khasra numbers are also lying at sufficient distance from the canal, would not entitle the appellant to claim compensation for their lands at the rates of Chahi/irrigated lands. Similar is the position in R.F.A. No,26 of 1992 wherein Khasra No,2268 of the appellants has not been declared as irrigated one and rightly so because it lies at sufficient distance from the canal and also in the Jamabandi, Exh. OW1/2 it is mentioned as 'Maira' kind of land. No reliable proof is available on record to favour the appellants' contention."
13. The learned counsel for the appellants was not in a position to controvert the plea raised by Mr. Mansur Ahmed, learned Advocate Supreme Court appearing on behalf of the respondent- landowners that the decision of a question of fact i,e, locale of Khasra Nos.2469, 2372, 2377, 2467, 237 and 2392 in the near vicinity of those parcels of land which were admittedly 'irrigated' could not but be considered sufficient in law to treat the same as irrigated PChahi'r Aabi', as done by the High Court. Same is the position with regard to the plea of Mr. Mansur Ahmed that the basis for the sanctification of increase of 25% in the impugned judgments does not suffer from any illegality much less a jurisdictional error within the contemplation of section 54 of the Act.
14. As the learned Members of the Division Bench have rightly proceeded with considering the potentialities of the lands in question for the purpose of award of compensation to the respondent-landowners and that too after bringing to bear the law declared by this Court in Collector Bahawalpur, District (supra), Maqbool Ahmed Fatehally (supra) and Fazalur Rahman (supra) on the peculiar facts and circumstances of this, we are not inclined to the view that any interference is called for in the impugned judgments of 3-2-1999 and 4-2-1999.
15. No other point was urged.
16. Resultantly, the appeals fail and are hereby dismissed with no orders as to costs.