P L D 2008 Peshawar 3 (PLP)

IJAZ-UL-HASSAN KHAN, J.

The present appeal calls in question the judgment and decree dated 26-1-2006, passed by Senior Civil Judge/Judge Referee Court, Swabi, whereby the value of lands of the respondents acquired for the construction of Islamabad Peshawar Motorway Project National Highway Authority, Risalpur, was enhanced to Rs.9,733.33 per marla from Rs.6,000 per marla, originally fixed by Land Acquisition Collector, Risalpur.

2. Shortly narrated the facts are, that vide award No.124 dated 3-4-2003, land measuring 206 kanals 16 marlas, situated in village Hund, Tehsil Lahor, District Swabi, including the hand of Allauddin and Abdur Rahim respondents, measuring 93 kanals 15 marlas, was acquired by Collector, Land Acquisition, Risalpur, for the construction of `Islamabad Peshawar Motorway Project'. Notification under section 4 of the Land Acquisition Act, 1894, was issued on 18-7-2001. A sum of Rs.6,000 per marlas for 'Nal Chahi' and Rs.82.60ror `chair Mumkin' kind of land was fixed as market price.

3. The respondents, feeling aggrieved, with the compensation awarded by the Collector, filed objection petition under sections 18/30 of the Act ibid, seeking enhancement in the compensation, alleging that the location, situation and future potential value of the land acquired has not been taken into consideration by the Collector while determining compensation, which has resulted in manifest injustice.

4. The objection petition was contested on all grounds legal as well as factual and claim of the respondents was denied. Out of affirmations and denial of the parties, following issues were framed for trial:-- (1) Whether the petitioners have got a cause of action? (2) Whether the petitioners are estopped to sue the respondents? (3) Whether the petition is within time? (4) Whether petition is bad due to non-joinder of necessary parties? (5) What. is the market value of the acquired landed property? (6) Whether the compensation for the acquired land has been properly assessed? (7) Whether the petitioners are entitled to a decree as prayed for? (8) Relicts.

5. After recording such evidence as the parties wished to adduce in support of their respective stances, learned Senior Civil Judge/Referee Judge, Swabi, by means of his judgment and decree dated 26-1-2006, partially accepted the claim of the respondents and enhanced the compensation amount froth Rs.6,000 to Rs.9,733/33 per marla along with 15% compulsory acquisition charges and 6% simple interest from the date of possession till the final recovery of amount, against which the Acquiring Department has filed instant appeal, which is before me for consideration.

6. Mr. Sikandar Rashid, Advocate, for the appellants, confined his arguments to findings recorded on issues Nos. 5 to 7 and attempted to argue that impugned judgment and decree is against law and facts of the case and is also based on misreading and non-reading of evidence and the reasons prevailing with learned Referee Judge for enhancing the amount of compensation, are not sustainable. The learned counsel also reiterated that valuation clause' of the Award has not been taken into account and compensation has been increased without any valid justification.

7. Mr. Muhammad Iqbal Mohmand, Advocate, for the respondents on the contrary, while repudiating the view point as canvassed at bar by learned counsel for the appellants supported the impugned judgment for the reasons enumerated therein with the further submission that a just and fair compensation has been determined after having taken into consideration all the relevant factors and in the light of the principles enumerated in section 23 of the Land Acquisition Act, 1894. To substantiate the contentions, reliance has been placed on Muhammad Saeed and 78 others v. Collector Acquisition Land, Mansehra and 3 others PLD 1996 Pesh. 22 and Mir Alam Khan v. Chairman WAPDA and others 1999 MLD 2107.

8. The question requiring consideration, would be as to whether the compensation for the acquired land has been fixed in accordance with section 23 of the Land Acquisition Act, 1894. While dealing with the question of fixation of compensation, the following observations were made by august Supreme Court of Pakistan in Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647:-- "The best method of determination of the market price of the plot 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 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. 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.".

9. In the instant case, I find that learned Referee Judge has appreciated the evidence on record in its true perspective and compensation has been increased for sound and cogent reasons, which are unexceptionable and cannot be successfully challenged. The mere assertion of learned counsel for the appellants that evidence on record has not been appreciated in right direction and matter has been dealt with mechanically in a slipshod manner, without a positive attempt on his part to substantiate the same, is of no consequence. Jehanzeb Khan Patwari Halqa, Hund (P.W.1), has clearly stated that the acquired land is situated adjacent to 'abadi'. There are also fish farms and orchards in and around the suit land. This portion of the statement of the witness has gone unchallenged. It is by now settled law that if a witness is not cross-examined on a fact and his statement goes un-rebutted and un-questioned, such a statement as a matter of law and principle could be taken to be correct. If an authority is needed on the point, reference can be made to Haji Din Muhammad through legal heirs v. Mst. Hajira Bibi and others PLD 2002 Pesh. 21.

10. In the absence of any other strong evidence, one year average is normally considered as a yardstick for determining the fair compensation to be paid to the land owners/affectees. In this case too one year average was made the basis for determining the fair compensation of the acquired land by learned Referee Judge and the compensation amount determined by the Collector at Rs.6,000 per marlas was below one year average, therefore, the learned Referee Judge was perfectly right in enhancing the compensation to Rs.9,733.33 per marla. The Land Acquisition Collector without any justification, reasons and evidence on record to the contrary failed to award compensation on the basis of one year average which comes to Rs.9,733.33 per marla, therefore, the compensation determined by the Collector was not reasonable and the one determined by learned Referee Judge is in consonance with the spirit of law. The price of land has jumped high in the near past. Criterion of one yearly average price, in appropriate case, is not of any help in determining market value of acquired land.

11. During the course of arguments, learned counsel for respondents has placed on record copy of `Valuation Table' for the year 2007-08 of Swabi District, whereby an amount of Rs.25,000 per marla for `Nal Chahi' type of land, situated in Mauza Hund has been fixed, as compensation. The valuation table has not been challenged seriously.

12. No other point has been raised and rightly so. In the result and for the foregoing reasons, finding no substance in this appeal, I dismiss the same with no order as to costs. H.B.T./185/P Appeal dismisse