2017 PLP 764 (CLC)

MUHAMMAD YOUNIS THAHEEM, J.

Through instant regular first appeal the appellants have assailed the judgment and decree dated 16.11.2009 rendered by learned Additional District Judge-II, Nowshera, whereby their objection/reference petition has been dismissed.

2. Brief facts of the case are that vide Award No.908-14 announced on 20.09.2008 by the Collector Land Acquisition Nowshera, some landed property of appellants and others, was acquired for the construction of Jabba Khattak Dam and compensation of the acquired land was fixed @ Rs.3000/- Per Kanal for Ghair Mumkin/Banjar Qadeem, Rs.8000/- per Kanal for Barani and Rs.15000/- Per Kanal for Nalchahi. The said award is lying on the record as Ex.PW-5/1. Being aggrieved from the said compensation and determination of per kanal price of their acquired property, the land-owners preferred an application before the Land Acquisition Collector for referring the objection petition under section 18 of the aforesaid Act to the learned District Judge Nowshera for determination of just and fair compensation according to prevailing market value of their acquired land at the time of notification under section 4 of the Land Acquisition Act along with other compulsory acquisition Charges and interest. The said application of the landowners was accordingly referred to the learned District Judge, Nowshera, who entrusted .the same for adjudication to the learned Additional District Judge-II, Nowshera.

3. The learned Referee Judge summoned the respondents who appeared and contested the reference petition by filing their written reply. The divergent pleadings of the parties gave birth to the framing of eight issues including relief.

4. Thereafter, pro and contra evidence of the parties was recorded and the learned Referee Court on evaluating the evidence on record and considering the arguments of learned counsel for the parties dismissed the reference petition of the objectors present appellants vide judgment and decree dated 16.11.2009, hence, the instant appeal.

5. Arguments heard and record perused.

6. Perusal of the record reveals that the respondents Nos.1 to 3 vide Award No.908-14/DOR/Acq: dated 20.09.2008 acquired land measuring 228 Kanals and 14 Marlas, for construction of Jabba Khattak Dam, Nowshera. It is evident from the record that the mouza in which land was acquired no sale mutation has been attested till initiating of acquisition process so much so in the adjacent mawazat also no sale mutation has been attested which could be one of the factors to determine just and fair market value of the acquired land. While the evidence produced by the appellants is also not sufficient to determine the market value under section 23 of the ibid Act. The record reveals that during pendency of reference petition, the appellants had moved an application for determination of market value by appointment of local commission, but that application was turned down by the impugned judgment. In absence of one year average price in the same mauza or adjacent mawazat, just and appropriate price for compensation could only be determined by appointing local commissioner for which there is no bar under the law. At this juncture, learned counsel for the parties agreed before the court for appointment of local commission for determination of just and fair market value of the acquired land.

7. For the reasons mentioned above, without dilating upon other merits of the case, lest it may not prejudice the case of either party, the instant regular first appeal is accepted, the impugned judgment and decree of the learned Referee Judge is set aside and the case is remanded to the learned trial Court with the direction to appoint local commission with consent of the parties for ascertaining market value of the acquired land with reference to its location, potentiality, proximity to road, building sites and other relevant factors should be considered in view of the guide lines held in the judgment august. Supreme Court, in case titled "Land Acquisition Collector and others v. Mst. Iqbal Begum and others" (PLD 2010 Supreme Court 719) and decide the case afresh within two months. Parties shall appear before the learned trial Court/Referee Court on 18.12.2015. ZC/118/P Appeal allowed.