1989 PLP 1305 (SCMR)

USMAN ALI SHAH, J.‑‑The abovementioned direct appeals brought by the appellants, against the judgment and order of the Peshawar High Court, Circuit Bench, Abbottabad, dated 19‑9‑1982, passed in R.F.A. No.81/78 of the appellants and R.F.A. No.100/79 of the respondents, whereby objection petition of the appellants against the compensation award, dated 12‑10‑1973 by the Land Acquisition Collector, before the learned Addl. District Judge, Abbottabad was partially accepted. The facts of the case are briefly stated, that in pursuance of a Notification, dated 3‑5‑1967 under section 4 of the Land Acquisition Act of N.‑W.F.P., the Land Acquisition Collector No.IV, Tarbela Dam, Haripur, (respondent No.l herein) Hide his award, dated 12‑10‑1973, acquired the entire estate of Village Kalabut measuring 11,604 kanals and 17 marlas, comprising of various types of land including wells, fruit bearing trees etc., of the owners, fixing the following rates of compensation excluding 15% compulsory acquisition charges:‑‑ (a) Bagh Chahi Rs. 3,112.00 per Kanal (b) Chari Abi & Nal Chahi Rs. 2,188.00 " (c)Bahir Di Abi Rs. 883.00 " (d)Baranger Abi & Maira Rs. 212.00 " (e)Banjer Oadeem Rs. 106.00 " (f)Ghair Mumkin Rs. 53.00 " (g)Abadi Rs.3,112.00 " While on 25‑5‑73, all the affected owners had filed their objections and claimed the following rates:‑ (a) Bagh Abi, Bagh Chahi, Chahi & Charri Abi. Rs. 7,000.00 per Kanal (b) Bahir Di Abi Rs. 4,500.00 " (c) Baranger Abi Rs. 3,000.00 " (d) Abadi Rs.7,000.00 (e) Other Ghair Mumkin R s. 700.00 " (f)Banjar Rs.3,000.00 " (g) Charri Rs.5,000.00 " (h) Maira Rs.3,000.00 " The owners/appellants being not satisfied with the rates as per award, dated 12‑10‑1973 of the Land Acquisition Collector and in order to vindicate their claim for reclassification of their acquired land and for higher compensation filed an application to Collector under section 18 of Land Acquisition Act for referring the matter to a Referee Judge. The learned Referee Judge after recording the evidence and hearing the learned counsel for the parties rejected‑the claim of the owners/appellants with regard to the reclassification of their acquired land but enhanced their compensation, award as per following rates:‑‑ (a) Chahi, Bagh & Bagh Chahi Rs. 4,792.00 per Kanal . (b) Charri Abi & .Nal Chahi Rs. 3,354.80 " (c) Bahar Di Abi Rs. 1,522.20 " " (d) Baranger Abi Maira Rs. 479.20 " (e) Banger Qadeem Rs. 239.60 " (f) Ghair Mumkin Rs. 239.60 " (g) Abadi Rs.4,792.00 " In addition to the above enhanced rates, the objectors/appellants were also held entitled to 15% compound interest over the excess amount from the date of taking possession by the acquisition department till the, date of payment, vide judgment dated 19‑4‑1978. Both the parties being not satisfied with the judgment of the Referee Judge, went in appeals before the Peshawar High Court, Circuit Bench, Abbottabad. A learned Division Bench of the High Court which heard the appeals, vide its judgment, dated 19‑9‑1982, partially accepted the appeals of the appellants by upgrading the classification of land comprised in Khasra Nos.1348, 1349, 1352. 1353 and 1051 to that of Chahi and compensation of which was ordered to be assessed as such class of acquired land. The learned Judge also partly accepted the appeal filed by the respondents and reduced the compensation award of the Referee Judge to the following rates:‑‑ (a) Bagh Chahi, Chahi Bagh Rs. 3,112.00 p.k. (b) Charri Abi, Nal Chahi Rs. 2,188.00 " (c) Bahir Di Abi Rs. 1,522.20 " (d) Baranger Abi Rs. 304.40 " (e) Maira Rs.304.40 " (f) Banjar Rs.152.30 " (g) Ghair Mumkin Rs. 75.00 " (h) Abadi Rs.3,112.00 " The appellants in all the appeals not being satisfied with the finding of the Division Bench come up to invoke the appellate jurisdiction through these direct appeals. We have heard the learned counsel for the parties, perused the record and judgments of the Courts below. The learned counsel for the appellants contended that while modifying the judgment of the learned District Judge, the learned Judges of the Division Bench of the High Court have ignored to consider the fact that the Notification under section 4 of the Land Acquisition Act was issued by the Provincial Government of N.‑W.F.P. on 3‑5‑1967 and the award by the Acquisition Collector was announced on 12‑10‑1973. The Collector had based the market value of the acquired properties for Tarbela Dam Project, on the date of Notification when the market value of land etc. was considerably lower than the time when the award was announced. In such cases under the Land Acquisition Act, the compensation is given to the affected persons to help them in their rehabilitation and thus the amount claimed by the objectors/appellants was quite reasonable and according to the prevailing market. A perusal of the record shows that the learned counsel for the parties had on 19‑4‑1978 agreed, so far as `Bahir Di Abi' type of land is concerned, on the market value at the rate of Rs.1,522.20 per kanal, before the learned Referee Judge. The learned Judges of the High Court, decided the case while keeping in view the "Parts" of the various kinds of land and made the following observation:‑ "It is clear from a cursory perusal of the joint statement that the learned counsel for the parties agreed that the market value of `Bahir Di Abi' type of land be fixed at Rs.1,522.20 per kanal. Having agreed on compensation of one kind of the acquired land, necessarily it follows that the other kind of land is to be in proportionate to their "Parts". The learned Judges of the High Court further observed that the compensation assessed on the basis of "Parts" regarding Bagh, Chahi, Charri Abi, Nal Chahi falls short of the assessed compensation by the Collector therefore the assessment of the Collector regarding said type of land will be maintained while compensation for the other types of land shall be in accordance with the compensation assessed on the basis of "Parts". In our view the observations made by the learned High Court basing the "Parts" for other kinds of land is not sustainable. So far as `Parts' is concerned, this formula in the land revenue relates only to the productivity and profitability of the land and does not deal with the price of the land. There is no statutory indication that for the sale `Parts' is to be taken for evaluation of the land, because it is not a recognized mode for assessment of the market value of different kinds of lands. Five years' average for evaluation of the market value was the first guideline, then by executive instructions, after Presidential meeting at Peshawar on 3‑5‑1967. it was ultimately reduced to one year's average period and was made the basis for evaluation of the market value of the lands. This policy was adopted only with the intention to give benefit to the affected land owners. Hence; under the circumstances if two years average is more beneficial than one year, then it should be applied for the evaluation of the market value and the owners would not be tied up with one year's average. The learned Add District Judge, Haripur had adopted this method for assessing the market value of different types of land acquired by the Tarbela Dam Project, which according to our view is the more equitable method and the same is to be upheld. In N7ew of the foregoing discussion, we accept all the above noted appeals with costs, set aside the impugned judgment of the High Court dated 19‑9‑1982 and restore that of the Addl. District Judge. Haripur dated 19‑4‑1978, 14‑5‑1979, 15‑5‑1979. 23‑6‑1979 and 2p‑0‑1979 A.A./R‑83/S Appeals accepted.