P L D 2004 Peshawar 77 (PLP)

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 petitioners have got a cause of action? (2) Whether petition is within time? (3) Whether petitioner is estopped to file the petition by his (4) Whether application/petition is against the facts? (5) Whether petitioner received compensation without any objection, if so, its effect? (6) Whether price assessed of suit land, in award, is not correct? (7) Whether market value of the suit‑land is Rs.one lac per Kanal? (8) Whether petitioner is entitled to the order, for enhancement of compensation amount, as prayed?

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 price fixed by the Land Acquisition Collector as compensation of the acquired land and upheld by the learned Senior Civil Judge, Swabi is unfair and below the prevailing market rate of the area. He urged that the acquired property was fit for construction and could fetch higher price. It was also submitted that the property of the appellants was located near Swabi Jehangira Road due to which it was bearing potential value. He further contended that in case the existing evidence was not sufficient to establish the actual price of the suit‑land, the learned trial Court should have appointed a Local Commissioner for ascertaining the actual market price.

7. On the other hand the learned counsel for the respondents has while controverting the arguments of the learned counsel for the appellant submitted that the suit‑land is of `Maira' type located far off the road. There was neither any source of drinking water nor for the purpose of agricultural. It was contended that the price of the land was fixed by the Land Acquisition Collector on the basis of one yearly average which is one of the recognized legal mode for determining the price for the purpose of compensation. He further urged that on the available record and in view of the classification of the land being `Maira' type and unfit for agricultural purpose, there was no difficulty in determining the market price by the trial Court and as such there was no need for the appointment of Local Commissioner nor the appellants had made any such request.

8. We have considered the rival contentions of the learned counsel for the parties in the light of the record. Mahmood Khan appellant No.1 appeared and was examined as P.W.2 in his personal capacity and not as an attorney for the remaining appellants. Although he claimed that at the time of acquisition of their property, its market value was Rs.1,00,000 per Kanal and at the time of recording the evidence he claimed its price to be 2/3 lac rupees per Kanal but he could not establish it. He also made reference to the property of H. Fateh Muhammad sold to the Provincial Government. It is, however, significant that neither any document was produced by him nor did he produce H. Fateh Muhammad whose A property was sold to the Provincial Government. No request to the trial Court was made even for the summoning of the record of the Provincial Government. The property of the appellants was situated in Khasra No.7875/1 to 3060. The Aks Shajara‑Kishtwar' Exh.P.W.1/4 indicates that this Khasra number is not located on any road side, therefore, it would be wrong to hold that the property of the appellants had any potential value. The record also does not indicate that the appellants had at any stage of the proceedings of the trial Court made request for the appointment of a Local Commissioner. The. `Patwari Halqa' namely Jehanzeb also admitted it correct that the suit property is `Maira' type. He also admitted the correctness of the fact that Village Shah Mansoor is at a distance from the acquired land. In view of the foregoing circumstances we are of the considered opinion that the appellants have not been able to establish through positive evidence that the price of the suit‑land was in fact higher than that which is determined by the Collector and upheld by the learned Senior Civil Judge. We therefore, do not find any justification to enhance the price of the suit‑land. Consequently this appeal is dismissed, with no order as to costs. H.B.T./22/P Appeal dismissed.