P L D 2003 Peshawar 193 (PLP)

SHAHZAD AKBAR KHAN, J.

Abdul Jamil and three others residents of village Shah Mansoor, Tehsil and District Swabi have filed this appeal questioning the correctness of the judgment dated 10-12-1996 passed by the learned Senior Civil Judge/Land Acquisition Judge, Swabi, whereby the reference filed by the appellant under sections 18/30 of the Land Acquisition Act was dismissed.

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 Endorsement 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 Endorsement No.5161-63/HVC, dated 7-10-1990. The relevant award has been assigned its number as 728-31/ACS, 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 land owners. The area of the appellants that was acquired was 5 Kanals out of 110 Kanals, 19 Marlas covered by Khasra No.7894/1 to 3060.

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 plaintiffs/petitioners have got a cause of action? (2) Whether the petitioners are estopped to sue?. (3) Whether the petition is within time? (4) Whether the compensation has wrongly determined? (5) Whether the petitioners, have accepted the compensation without objections? (6) Whether the petitioners are entitled to the enhancement of compensation? (7) 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 argued that the price of the land determined by the Land Acquisition Collector was not fair as the is situated near the village 'Abadi' and can be used for the purpose of construction. He also argued that in the same 'Moza' the appellants had purchased land at the rate of Rs.40,000 per Kanal vide Mutation No. 13061 dated 25-4-1986. He also stated that the land which was acquired through the instant award was not for public purpose in its real sense in terms of section 23(2) of the Land Acquisition Act, 1894.

7. On the other hand the learned counsel for the respondents has defended the impugned judgment for the reasons contained therein. He also stated that the price of the acquired land is determined in accordance with the law on the basis of one yearly average. He submitted that the acquired land is 'Barani' having no potential value as neither the same is situated close to the village nor on any road side. He further contended that there were no prospects of raising any private construction on the area as neither any water is available nor, any electricity supply was available in the vicinity.

8. We have heard and considered the rival contentions of the learned counsel for the parties and have gone through the record. The appellants produced 'Patwari Halqa' as P.W.1 who furnished the five yearly average Exh.P.W.1/2, 'Aks Shajara Kishtwar' Exh.P.W.1/3, Khasra Girdawari Exh.P.W.1/4 and 'Fard Jamabandi' Exh.P.W.1/5. The appellants failed to produce and prove the Mutation No. 13061 in accordance with the law. Though P.W.2 has stated that he purchased the suit property for construction at the rate of Rs.40,000 per Kanal but neither the mutation was proved nor the party to the said transaction was produced and examined in support of his claim. P.W.2 also claimed the price of the acquired land as Rs.2,00,000 per Kanal but no evidence in this regard was brought on the record. The mere statement of P. W .2 without any supportive evidence would be inconsequential. So far as the production of a party to the transaction is concerned, in this regard the judgment of this Court reported as PLD 1976 Pesh. 50 is relevant wherein it was held that the burden of proof was on the land owners to have proved bona fide of the transaction through the production of any party to the transaction. It was also held that the mere production of the mutation was entirely insufficient for the purpose of the land owners. There is no evidence to show that close to the acquired land either there is any 'Abadi' having the power connection or there is any water scheme or source of water which is essentially required to make the property purposeful for construction. For the above stated reasons we have not been able to accept the arguments of the learned counsel for the appellant to the effect that the price of the land was fixed improperly. Consequently this appeal having no merits is dismissed, with no order as to costs. M.B.A./867/P Appeal dismissed.