2022 PLP 1118 (CLC)

WIQAR AHMAD, J.

This order is directed to dispose of all these connected Regular First Appeals (hereinafter referred to as "RFAs") bearing number R.F.A No. 95-M/2017, R.F.A No. 96-M / 2017, R.F.A No. 101-M/2017, R.F.A No. 106-M/2017, R.F.A No. 107-M/2017, R.F.A No. 108-M/2017, R.F.A No. 109-M/2017 and R.F.A No. 18- M/2018. These connected appeals are arising out of the matter of acquisition of land through award No. 10 dated 18.08.2011 issued by District Officer Revenue and Estate/Collector Malakand at Batkhela under section 12 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Acquisition Act").

2. The Acquiring Department i.e. Deputy Director (North) Frontier Highways Authority Swat requested for acquisition of the land vide his letter No. 21/W/2207 dated 22.01.2009 addressed to then District Officer Revenue and Estate/Collector Malakand at Batkhela. In pursuance thereof, notification under section 4 of the Acquisition Act was issued on 01.06.2010 for starting the process of acquisition of land for improvement and widening of Batkhela Totakan Qulangai road having a length of 22 kilometers. The detail of land which was sought to be acquired through the award from the land of various revenue estates situated on the road has been given in the award as follows; District Tehsil Locality Kanal Marla Serai Area in Spr: feet Malakad Batkhela Batkhela 18 14 0 101741 Khar 11 12 4 63315 Dherai 4 9 2 24,300 Julagram 12 11 6 68,510 Matkanai 19 18 14 10,8 474.5 Totakan 10 6 8 56,305 Qulangai 5 3 4 28,203.5 Total 82 14 1 4,50, 849 Determination of the amount of compensation was based on Rate Reasonability Certificate provided by the Naib Tehsildar Utman Khel and Tehsildar Batkhela and vide their memos Nos. 171 and 420 dated 27.09.2010 and 30.09.2020 respectively. The Rate Reasonability Certificate is also relevant in all these connected appeals.

3. Feeling aggrieved therefrom, respondents in the appeals, who have been land owners in different Revenue Estates ("Muzas") had filed their separate references with District Collector Malakand, which had subsequently been sent to the learned District Judge and then marked to the learned Referee Court for treating the same as References filed under section 18 of the Acquisition Act.

4. R.F.A No. 95-M and R.F.A No. 106- M of 2017 arose out of Reference No.7/4 of 2016 filed by land owners of Revenue Estate of Muza Matkani. Similarly, R.F.A No. 101-M and R.F.A No. 108-M of 2017 arose out of Reference No. 3/4 of 2016 filed by land owners of Revenue Estate of Muza Dujangai Piran. Likewise, R.F.A No. 96-M and R.F.A No. 107-M of 2017 has been filed against the judgment in Reference No. 4/4 of 2016 filed by land owners of Revenue Estate of Muza Qulangai. R.F.A No. 109-M of 2017 and R.FA. No. 18-M of 2018 has arisen out of Reference No. 5/4 of 2016 filed by land owners of Revenue Estate of Muza Khar.

5. On acceptance of all the above-mentioned References the rate of acquired property has been enhanced by the learned Referee Judge as follows; Reference No. 7/4 of 2016 The rate of compensation was enhanced and respective petitioners were held entitled to a rate of compensation of Rs. 600 per square feet for commercial area, rate of Rs. 350 per square feet for agriculture area and rate of Rs. 250 per square feet for mountainous area. Reference No. 3/4 of 2016 The rate of compensation was enhanced and petitioner was held entitled to a rate of compensation of Rs. 1200 per square feet along with 15% compulsory acquisition charges and 6% interest. Reference No. 4/4 of 2016 The rate of compensation was enhanced and petitioner was held entitled to a rate of compensation of Rs. 900 per square feet along with 15% compulsory acquisition charges and 6% interest. Reference No. 5/4 of 2016 The rate of compensation was enhanced and respective petitioners were held entitled to a rate of compensation of Rs. 400 per square feet along with 15% compulsory acquisition charges and 6% interest.

6. Feeling aggrieved from enhancement of the amount of compensation for the acquired land, the Acquiring Department i.e. Khyber Pakhtunkhawa Highway Authority has filed their appeals bearing R.F.A No. 106-M, R.F.A No. 107-M, R.F.A No. 108-M and R.F.A No. 109-M of 2017, while the District Collector Malakand and other authorities of the provincial government have filed their separate appeals bearing R.F.A No. 95-M, R.F.A No. 96-M, R.F.A No. 101-M of 2017 and R.F.A No. 18-M of 2018. Since the award was one and the same and the acquired area was also contiguous, therefore all these cases were clubbed together and are sought to be disposed of through the instant consolidated judgment.

7. I have heard arguments of learned counsel for the parties and perused the record.

8. Perusal of record reveals that settlement of land has not been carried on, in the area acquired through the award, therefore revenue record has not been existing. This has caused substantial problems for the acquiring authorities, in determining the compensation of land, as well as for the learned Referee Judge while deciding upon references of the parties. Job of the Acquiring Department has further been complicated by the fact that they could not find even a single registered deed regarding sale of any property in the revenue estates wherefrom land has been acquired. The Acquiring Department has therefore based its determination of rates on the Rate Reasonability Certificate. The certificate has been issued in all these connected cases by Naib Tehsildar of the concerned Tehsil, for determination of rates of acquired lands in all the revenue estates, and is therefore relevant for the present discourse. Contents of the said certificate are reproduced hereunder for ready reference; "OFFICE OF THE NAIB TEHSILDAR UTMAN KHEL AT TIMERGARA No. 171 Dated 27.09.2010 RATE REASONABILITY CERTIFICATE Certified that settlement has not been carried out in District Malakand. In absence of revenue record, most of the transactions are being made amongst both the parties through mutual understanding without mutations and registration. However, the rate worked out by Revenue Filed Staff in various Muzas are as under; S.No. Name of locality/Muza Rate per sq.fee 1 Khar . Rs. 275/-. 2 Gul Nergus ....... Rs. 225/- 3 Dheri Julagram... Rs. 250/-. 4 Matkani...... Rs. 200/- 5 Totakan . Rs. 250/- 6 Qulangai.... Rs. 175/- Rates of compensation had subsequently been determined by District Collector in the award as follows; AWARD On analyses of the material on record it transpired that the mode of Acquisition in the case was compulsory acquisition. Moreover, the Acquiring Department sent the amount through cross cheques mentioned above with the request to make payment to the Land Owners.

1. Total cost of the Land measuring 450849, Sqr. feet Rs. 12,58,64,550/-

2. Compulsory charges @ 15% ... Rs. 1,88,79,682/-

3. Total cost of erected building .. Rs. 3,09,74,778/- Grand total Rs.17, 57,19,010/- The amount of the land compensation as mentioned above has already been placed at the disposal of the undersigned for payment to the Land Owners. Therefore, the Owners of the land/Building are hereby allowed to receive their compensation of land measuring 450849 sqr. Feet and buildings with 15% compulsory acquisition charges. Owners of revenue estates of Khar, Gul Nergus, Dherai Julagram, Matkani, Totakan and Qulangai had felt aggrieved therefrom and filed their separate References before the District Collector Malakand, which had subsequently been sent to the learned Referee Court for adjudication. During proceedings of the references, the objectors had relied upon certain documentary evidence as well as oral assertions. Evidence of reliance of the parties in all the References are briefly discussed below; R.F.A No. 95-M and R.F.A No. 106-M of 2017 These RFAs have arisen out of judgment dated 26.10.2017 of the learned Referee Court in Land Acquisition Case No. 7/4 of 2016 bearing title "Residents of Village Matkani through representatives v. Government of Khyber Pakhtunkhwa and others". The reference had been filed on behalf of all the owners in Muza Matkani numbering 147 in representative capacity. During proceedings of the Reference, Clerk from the office of Sub-Registrar Batkhela at Malakand namely Wahidullah was examined as PW-1, who had stated that no deed of sale in Muza Matkani had been registered in the office of Sub-Registrar in the year 2010. Beside the oral evidence, objectors have also examined Tehsildar Batkhela namely Shah Jehan Khan as DW-2. In his statement he had produced copy of award No. 10 as Ex.DW-2/4 (consisting of 4 sheets) and rate reasonability certificate as Ex. DW-2/5. R.F.A No. 101-M and R.F.A No. 108-M of 2017 These RFAs have arisen out of judgment dated 07.11.2017 of the learned Referee Court in Land Acquisition Case No. 3/4 of 2016 bearing title "Habib-ur-Rehman v. Government of Khyber Pakhtunkhwa and others". The reference had been filed by Habib-ur-Rehman against the Provincial Government of Khyber Pakhtunkhwa and others. During proceedings of the Reference, Kanoongo namely Fazal Wahid of Tehsil Batkhela District Malakand was examined as PW-4, who had produced a sale deed No. 17 dated 28.01.2012 as Ex. PW-4/1 in respect of ownership of the acquired land. Beside the oral evidence, objectors have also examined Tehsildar Batkhela namely Shah Jehan Khan as DW-1. In his statement he had produced copy of the award as Ex.DW-1/2 (consisting of 4 sheets), rates determination certificate as Ex. DW-1/5 and the sale deed as Ex. DW-1/6 (consisting of 8 pages). R.F.A No. 96-M and R.F.A No. 107-M of 2017 These RFAs have arisen out of judgment dated 07.11.2017 of the learned Referee Court in Land Acquisition Case No. 4/4 of 2016 bearing title "Khali-ur-Rehman v. Government of Khyber Pakhtunkhwa and others". The reference had been filed by Khalil-ur-Rehman against the provincial government of Khyber Pakhtunkhwa and others. During proceedings of the Reference, Bacha Rahman, record keeper of the office of ADC Batkhela was examined as PW-1, who had produced the rate reasonability certificate as Ex. PW-1/1. Beside the oral evidence, objector have also examined Tehsildar Batkhela namely Shah Jehan Khan as DW-2. In his statement he had produced copy of the award as Ex.DW-2/2 (consisting of 4 sheets), rate reasonability certificate as Ex. DW-2/5 and notice under sections 9/10 of the Acquisition Act as Ex.DW-2/6. R.F.A No. 109-M of 2017 and R.F.A 18-M of 2018 These RFAs have arisen out of judgment dated 28.11.2017 of the learned Referee Court in Land Acquisition Case No. 5/4 of 2016 bearing title "Majeedullah and others v. Government of Khyber Pakhtunkhwa and others". The reference had been filed by Majeedullah and 2 others against the provincial government of Khyber Pakhtunkhwa and others. During proceedings of the Reference, the appellant Majeedullah appeared in Court as PW-1. Beside the oral evidence, objectors have also examined Tehsildar Batkhela namely Shah Jehan Khan as DW-1. In his statement he had produced copy of the award as Ex.DW-1/2 (consisting of 4 sheets), rates determination certificate as Ex. DW-1/5 and notices under sections 9/10 of the Acquisition Act as Ex. DW-1/8 to Ex. DW-1/9.

9. The sale deeds produced in different cases have not been relied upon by the learned Referee Court. The sale deeds have been executed much after the date of award. Although it may have been relevant for the purpose of discerning potentiality of the acquired land in light of the principles laid down in the case of "Province of through Collector of District Dadu and others v. Ramzan and others" reported as PLD 2004 Supreme Court 512 and the case of "Land Acquisition Collector and others v. Mst. Iqbal Begum and others" reported as PLD 2010 Supreme Court 719, but it was not safe to rely upon these sale deeds in peculiar facts and circumstances of these connected matters. The deeds were unregistered, and some of the parties therein have also been parties in the instant proceedings. It cannot be entirely ruled out that such deeds may have been executed, and the amount of consideration shown inflated so as to get help in getting a higher market value in these cases.

10. In all the connected references, learned Judge Referee Court had appointed a local commission for local investigations, who has accordingly submitted his reports. In all the cases, learned Referee Judge has relied upon reports of the local commission for determination of the amount of compensation and thus the questions whether reliance on report of local commission were justified, require determination. In the peculiar facts and circumstances of the cases, approach of the learned Referee Judge may be justified as there has not been any other reliable evidence before him. The local commission has been summoned to the Court in all these cases, examined and cross-examined but nothing could be extracted from him, which may have vitiated the authenticity of his reports or the propriety of the proceedings conducted during the course of local investigations. The reports have rightly been relied upon by learned Referee Court. This Court in its earlier judgment given in the case of "WAPDA through Chairman and 4 others v. Jamil Ahmad Khan and others" reported as 2017 YLR 2272 had relied upon the report of local commission for determining the market value of the acquired land. Same was the case in another judgment of this Court in the case of "Ehsan-ul-Haq and others v. Executive Engineer Highway and others" reported as 2006 CLC

210. Similarly, Hon'ble Lahore High Court had also adopted a similar approach in its judgment given in the case "Province of Punjab through Member Board of Revenue, Lahore and 3 others v. Haji Ahmad Ali" reported as "2006 YLR 729". The learned Referee Judge has therefore rightly relied upon the reports of local commission for determination of the amount of compensation, particularly when other evidence had not been available.

11. Beside the reports of local commission, there has not been any other reliable evidence before the learned Referee Court, as discussed earlier. The Acquiring Authorities had based its determination of the market value on the Rate Reasonability Certificate of the Naib Tehsildar. Such a determination of rate of compensation made by the Acquiring Department, had not been based on proper appraisal of market rate. The Naib Tehsildar had itself not based its report on any data or any evidence to that effect but had rather conducted a subjective assessment. Such a determination of rate conducted by the Acquiring Department have not been accepted by the learned Referee Court for the right reasons. While deciding the References, learned Referee Court was not only supposed to determine the market rate as it existed at the time of issuance of notice under section 4 of the Acquisition Act, but had to ensure that the affected land owners were adequately compensated. Hon'ble Supreme Court of Pakistan in its judgment given in the case of "Province of through Collector of District Dadu and others v. Ramzan and others" reported as PLD 2004 Supreme Court 512 has held in this respect; "The most important aspect qua the lands compulsorily acquired is, that the mandatory returns proposed to be given to the landowner is the compensation and not the market value. Very section 23 provides for various matters to be brought under consideration while determining compensation. Market value is only one of such matters to be considered by the Collector or Courts. Compensation is a very wider term indicating that the landowners, for various reasons, is to be compensated and not merely paid the price of land which is just an interaction of supply and demand fixed between a willing buyer and willing seller." In the case of "Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another" reported as "1999 SCMR 1647", Hon'ble apex Court had summarized guidelines for determining the market value of land for payment of compensations in cases of compulsory acquisition of land for public purposes, on the basis of already existing case law, which may be reproduced herein advantageously; The following matters are to be taken into consideration in determining the amount of compensation; (i) The data from which the market value of the land can be estimated is given in Rule 13 of the North-West Frontier Province Circular No.54 issued presumably under section 55 of the Act. (ii) The best method to work out the market value is the practical method of a prudent man laid down in Article 2, Qanun-e-Shahadat, 1984 to examine and analyse all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land. (iii) Subsection (1) of section 23 of the Land Acquisition Act provides that in determining the amount of compensation the Court shall take into consideration the market value, loss by reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition. (iv) The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of it near about the date of notification under section 4 (i) of the Land Acquisition Act. The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighbouring locality, the potential value of the land need not be separately , awarded because such sales cover the potential value. (v) The law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining the market value, classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits. (vi) While determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration. (vii) Consideration should be had to all the potential uses to which the land can be put, as well as all the advantages, present or future, which the land possesses in the hands of the owners. (viii) In determining the quantum of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction. (ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser this means that Court has to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist. (x) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the "past sales" should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as Court - witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in question, because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The "previous sales" of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired. (xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value. (xii) In cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on 'the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act. (xiii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted, should be taken into consideration. (xiv) The phrase "market value of the land" as used in section 23(l), of the Act means "value to the owner" and, therefore, such value must be the basis for determination of compensation. The standard must be not a subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration. On the basis of ratio of the judgment in the case of "Mehinwal Khan v. Khuda Bakhsh and others" reported as 1996 MLD 252 it had also been reiterated in bullet point No. xiii reproduced above that if value of land of an adjoining area, which was simultaneously acquired, and for which a different formula of compensation has been adopted, should also be taken into consideration.

12. It needs mention here that this Court had earlier dismissed appeals of the Acquiring Department arising out of one and same award No. 10 dated 18.08.2011, whereby enhancement of rates by the learned Referee Judge made in similar manner had been under challenged. The judgment of this Court dated 25.06.2020 had been rendered in R.F.A No. 72-M of 2017 bearing title "Government of Khyber Pakhtunkhwa through Secretary and 7 others v. Bakht Karam and 2 others". This Court is not going to give a different treatment to the instant RFAs because it would be violative of the principle which goes in favour of maintaining consistency in judicial verdicts.

13. One of the objections of learned counsel for appellants was regarding irregularity in the procedure adopted by learned Referee Judge while adjudicating upon Land Acquisition Reference No. 7/4 of the year 2016 filed by affected owners of Muza Matkani in their representative capacity and thus this question also requires determination. Objectors have filed a list of 147 persons as affected owners in Muza Matkani, and an application under Order I, Rule 8, C.P.C along with their reference, but before conducting proceedings of the reference the learned Referee Court could not issue a notice to all the affected owners thereof. Such an irregularity has been addressed by the learned Reference Court in the impugned judgment in the following words; By condoning the irregularity substantial justice has been done, which has been the basic object behind establishment of Courts in a society, as held by Hon'ble apex Court in the case of "Saddaqat Khan through LRs and others v. Collector Land Acquisition and others" reported as PLD 2010 Supreme Court

878. A larger Bench of the Hon'ble Supreme Court of Pakistan had also held in the judgment that benefit which had accrued to the land owners who had filed an appeal in the High Court seeking further enhancement of compensation vis- -vis their acquired land, could also be extended to similarly placed land owners, who had not filed any such appeal in the High Court. Aggrieved owners i.e. respondents herein could not be allowed to be given a technical knock-out when such a relief was being extended to the other affected land owners in the surrounding Muzas, whose land had been acquired through one and same award. Even otherwise, learned counsel for respondents, in response to the said objection of learned counsel for appellants had produced an original power of attorney on behalf of all 147 persons who had been suing in representative capacity and requested for placing the same on record. Since appeal had largely been argued by then, therefore the power of attorney was allowed to be placed on record. The special attorney stated that none of the affected owners of village Matkani had got any objection on filing of the reference in representative capacity, on their behalf and that they had been owning and ratifying all the acts done by the representatives of village Matkani. Had an objection come from any of the owners, the situation would have been otherwise. It however does not lie in the mouth of the Acquiring Department, or the acquiring authority to raise such an objection. None of their rights has been prejudiced by the act of filing of reference in a representative capacity. Hon'ble Supreme Court of Pakistan in the case of "Islam-ud-Din and others v. Ghulam Muhammad and others" reported as PLD 2004 Supreme Court 633 had not treated non-following of the procedure under Order I, Rule 8, C.P.C., as fatal, when it found that it had not been causing any substantial prejudice to the case of either party.

14. In light of what has been discussed above, all these connected Regular First Appeals were found to have been lacking substance and same are accordingly dismissed.

15. Since the main appeals have been dismissed therefore C.Ms. Nos. 1569, 1583, 1584, 1585, 1586 and 1587 of 2017 have become infructuous and same are disposed of, accordingly. SA/32/P Appeals dismissed. ***