SHAHZAD AKBAR KHAN, J.--Gul Namir son of Jan Dad, resident of village Shah Mansoor, Tehsil and District Swabi has tiled this appeal questioning the correctness of the judgment dated 10-12-1996 passed by the learned Senior Civil Judge/Land Acquisition Judge, Swabi, whereby the reference filed by the appellant under sections 18/30 of the Land Acquisition Act was dismissed.
2. The short facts of the case are the land measuring 2123 Kanals 13 Marlas was acquired for the purpose of construction of Shah Mansoor Township. Notification under section 4 of the Land Acquisition Act, 1894 was issued by the then Deputy Commissioner, Swabi vide his office Endst.
No,358-62/DK/HVC, dated 10-6-1989. Declaration under section 6 of the said Act was issued by the then Commissioner, Mardan Division, Mardan vide his office Endst.No,5161-63/HVC, dated 7-10-1990.
The relevant award has been assigned its number as 728-31/ACS, dated 16-3-1991. The area acquired by the Land Acquisition Collector, Swabi was of two kinds i,e, 'Chahi' and 'Maira' land. The price of the 'Chahi' land was determined by Collector as Rs,37,352 per Kanal while that of 'Maira' land was determined as Rs,13,553 per Kanal based on one yearly average.
3. 15% compulsory acquisition charges were also given to the land owners. The land measuring 31 Kanals, 3 Marlas belonging to the appellants was included in the acquired land.
4. Dissatisfied with compensation amount, the appellants filed reference before the Senior Civil Judge/Land Acquisition Judge, Swabi. Thereference was resisted by the respondents by filing reply thereto and the rival pleadings generated the following issues: --
(1) Whether the plaintiff/petitioner has got cause of action?
(2) Whether the reference petition is within time?
(3) Whether the petitioner/plaintiff is estopped by his own conduct to file the present reference?
(4) Whether the petitioner/plaintiff has received the compensation without objection?
(5) Whether the compensation of the suit-land is wrongly assessed, if so, what is the correct and accurate compensation?
(6) Whether the petitioner/plaintiff is entitled to the enhancement of compensation as prayed for?
(7) Relief.
5. Both the parties adduced their respective evidence. However the trial of the matter ended into dismissal of the reference petition.
6. The learned counsel for the appellants has argued that the Collector Land Acquisition had determined the price of the acquired land arbitrarily and has not taken into consideration all the factors relevant for the purpose of determining the compensation for the land acquired. He contended that the suit-land is located near the road and could be used for the purpose of construction of houses. He further argued that the land of the appellant was of 'Chahi' nature but the compensation was given to him that of 'Barani' land. The price claimed by the appellant before the lower Court was Rs,40,000 per Kanal.
7. On the other hand the learned counsel for the respondents has defended the impugned judgment for the reasons mentioned therein and argued that the price fixed by the Collector and upheld by the trial Court is fair as according to the record there was no tubewell or dug-well of the appellant at the time of notification under section 4 of the Land Acquisition Act, 1894. He further contended that the suit-land is situated far-off the 'Pakka' road.
8. We have considered the arguments of the learned counsel for the parties and have examined the record with their assistance. The 'Patwari Halqa' was examined as P.W.1 who had produced the relevant record including the one yearly average from 1-5-1988 to 1-5-1989. He admitted in the cross-examination that the diesel pump is shown in the 'Khasra Girdawari' pertaining to 'Kharif'
1990 and there is no such entry in the 'Khasra Girdawari' before the said year. He also specifically stated that in the 'Khasra Girdawari' pertaining to the year 1989 there is no entry of diesel pump.
This feature of the case was taken into consideration by the learned trial Court while deciding Issues Nos.1, 5 and 6 which concluded that there was no 'Abadi' or diesel pump installed in the suit- land prior to 1990. The Notification under section 4 of the Land Acquisition Act was issued on 10-6- 1989. Thus the installation of the diesel pump was obviously after the issuance of the notification which would not give entitlement to the appellant for any improvement. The 'Patwari Halqa' has also clearly stated that the land in question is of 'Maira' type situated outside the main village. The appellant himself appearing as P.W.2 stated that the land in dispute is at a distance of two furlongs from 'Pakka' road. The Revenue Record does not support the claim of the appellant vis-a-vis the improvement of the suit-land. It was also argued before us by the learned counsel that the learned trial Court should have appointed a Local Commissioner to assess the market value of the suit- land but the record indicates that no such application was ever made to the trial Court. In the circumstances we feel that the price of the land fixed by the Collector and upheld by the learned Senior Civil Judge does not appear to be arbitrary. Consequently this appeal is dismissed, with no order as to costs.