2004 PLP 324 (MLD)

2. The short facts of the case are that 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 the 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 landowners. The land measuring four Kanals belonging to the appellants was included in the acquired land.

4. Dissatisfied with the compensation amount, the appellants filed reference before the Senior Civil Judge/Land Acquisition Judge, Swabi. The reference was resisted by the respondents by filing reply thereto and the rival pleadings generated the following issues:‑‑ (1) Whether the petitioners have got a cause of action? (2) Whether objection is within time? (3) Whether the petitioners are estopped to sue? (4) Whether the petitioners have received the compensation without objection, if so, its effect? (5) Whether the market value/compensation assessed by the Collector Land Acquisition is wrong and against the facts? (6) What is the correct market value of the suit‑land? (7) Whether the petitioners are entitled to the enhancement of compensation? (8) 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 assailed the price of the land of the appellants determined and upheld by the Land Acquisition Collector and learned Land Acquisition Judge respectively. He contended that the suit‑land has potential value as the same could be used for the purpose of construction and it is located on the road side. He further argued that land sold out of the same Khasra number vide Mutation No. 13462 attested on 21‑1‑1988 for a sum of Rs.40,000 per Kanal to the Education Department was not taken into consideration. He also urged that for the purpose of determining the compensation of the acquired land the element of future potential value should also be taken into account which in the instant case has been omitted.

7. On the other hand the learned counsel for the respondents has argued that the acquired land of the appellant is of 'Maira' type which can neither be used for agriculture purpose nor could be brought into use for the purpose of construction as the same is located far off the village Shah Mansoor and there is neither any source of water nor other living facilities making the area fit for habitational use. He further contended the mere bald statement of P.W.2' who appeared as attorney for the appellants is not sufficient to establish the claim of the appellant vis- -vis the higher price as there is no‑ supportive evidence to his statement. While making reference to the 'Aks Shajara Kishtwar' Ex. P.W.1/4 he contended that the area of the appellants appears to have been shown through a dotted line which is triangular in its formation and a very meagre portion of their land is linked with a path. He contended that no evidence is forthcoming to show that the land of the appellants had any characteristics of potential value nor there are any further prospects of its potentiality.

8. We have heard and considered the arguments of both the learned counsel in the light of the record. The appellants produced two witnesses, one is Umar Dad Khan 'Patwari Halqa' who produced the 'Jamabandi', one yearly average, five yearly average, file map and copy of 'Khasra Girdawari' Exh.P.W.1/2. Exh.P.W.1/5. Asadullah one of the appellants appeared a P.W.2 as attorney for the rest of the appellants. He stated that adjacent to their property the Provincial Government had purchased land for construction of school from Fateh Muhammad for a sum of Rs.40,000 per Kanal. He claimed that the property of the appellants was suitable of commercial purposes. He also stated that one Kanal of land was sold in the area for Rs. one lac fifty thousand in the near past. The statement of this witness was recorded on 7‑11‑1993 and the evidence was closed with the exception to file an application for appointment of a Local Commissioner. On the consideration of the evidence of the appellants it follows that the appellants have based their claim on bare oral statement and no mutation or other relevant document was produced in support of their claim. P.W.2. very candidly admitted that lie cannot produce any copy of mutation or registered deed regarding the sale which took place at the time of award. He also admitted that he had no attested copy of mutation vide which the Provincial Government has purchased land for Education Department. It is also note worthy feature of the case that no body from the Education Department was produced as a witness. As per the judgment of the Division Bench of this Court reported as PLD 1976 Peshawar 50 it was held that the land owner are under the burden to produce some party to the transaction on which they rely to prove the factum of genuineness and bona fide of the transaction. Their Lordships had gone even to the extent of holding that the mere production of a mutation in evidence was entirely insufficient for establishing the bona fide and genuineness of the transaction. In the instant case even an attested copy of the mutation or registered deed was not brought on record and the same fact is admitted by P.W.2. We have also noted that the learned trial Court while giving findings on Issues Nos.3 and 4 and on making reference to `Qabz‑ul‑Wasool', had held that Mati‑ul‑Haq one of the appellants had received the compensation amount without any sort of protest. This features of the case remained un‑controverted during the arguments before us. It was not argued that such findings are incorrect or extraneous to the record. This factum was considered as an estoppel in the way of the appellants.

9. The perusal of the order‑sheets of the trial Court also indicates that no application for the appointment of the Local Commissioner, for which the appellants had reserved their rights on 7‑11‑1993, was made. This aspect of the case reveals that the appellants were satisfied with the evidence of P.Ws. 1 and

2. On the evaluation of the said evidence and the revenue papers including the `Aks Shajara‑Kishtwar' we feel that the judgment of the learned Land Acquisition Judge does not suffer from any legal infirmity which should be considered as a ground for taking exception to his judgment. The appellants have failed to prove through positive evidence that during the relevant days the price of the land in the vicinity was higher than that determined by the Land Acquisition Collector by applying the formula of one yearly average. We have also not been convinced that the land of the appellants was bearing any potential value. In the circumstances, we feel no force in the instant appeal which is consequently dismissed, with no order as to costs. M.H./979/P Appeal dismissed.