2009 SCMR 105 (PLP)

SHEIKH HAKIM ALI, J.

All the above noted appeals filed under section 54 of the Land Acquisition Act, 1894 are being disposed of through this single judgment as the common questions of law and facts are involved therein, and the appeals have originated from one Award No.11, dated 26-5-1993; judgment of learned Referee Judge, Abbottabad, dated 10-11-2000 and that of learned Peshawar High Court, Abbottabad Bench delivered on 18-9-2003.

2. The cause for filing of the above noted appeals can be found from the following facts, the resume of which is given below:

"To acquire the land of private owners for the use of Ministry of Defence, for the expansion of P.M.A. Kakool, the Land Acquisition Collect/Deputy Commissioner, Abbottabad, issued a notification under section 4 of the Land Acquisition Act, 1894 on 5-11-1990 for the compulsory acquisition of land of the present respondents of all the above mentioned appeals, which was measuring 165 Kanals, 12 Marlas, situated in Revenue Estate, Nawanshehr, Shamali and 21 Kanals, 11 Marlas in Revenue Estate, Kakul total land measuring 187 Kanals, 3 Marlas. After issuance of notices under sections 9 and 10 of the above Land Acquisition Act, 1894, ultimately the Collector delivered his Award No.11 on 26-5-1993 by which he fixed the compensation in the following form:

S.No. Name of Village Total Area Cost of Land Kind of Land (per Kanal) Total Amount 1. Nawanshehr 19-K, 5 M. Rs.1,27,134 Rs.24,47,329.50 Shamali, 131-K-5 M Rs.1,08,972 Rs.1,42,97,126.40 Kund Maira Chair Mazroha, 15-K, 3 M, Rs.91,719 Rs.6,054/06 Rs.1,68,36,174.90 Total 165-K, 12 M Rs.25,25,426.10 15% Compulsory Acquisition Charges 2. Kakul Ghair Mazroha, 21-K, 11-M. Rs.29,027.85 Rs.1347 Rs.4,354.18 15% Compulsory Acquisition Charges Grand total Rs. 1,93,94,983.03 (Rupees one Crore ninety-three lacs ninety-four thousand nine hundred and eighty three/3 Paisa only) Dissatisfied from the fixation of compensation for the lands acquired, the owners/respondents filed references under section 18 of the above mentioned Act, before the learned Senior Civil Judge/Referee Judge, Abbottabad, through the prescribed procedure, who after grant of opportunity to both the parties and conduct of proceedings decided it on 22-11-1997 and enhanced the compensation, which is as under: "The upshot of my above discussion on various issues especially on Issue No.6, the objection upto 5 Kanals is commercial area and the price value of the same is fixed Rupees five lees per Kanal, whereas the remaining area is considered to be fit for residential purpose and its price is fixed Rs.3,41,000 per Kanal along with 15% compulsory acquisition charges and 6% simple interest." This judgment and decree announced on 22-11-1997 was further challenged by the respondents before the learned Peshawar High Court, Circuit Bench Abbottabad through separate appeals, which were decided on 18-9-2003 by the learned Peshawar High Court, Abbottabad Bench. The impugned judgment was delivered in R.F.A. No.13 of 1998 with the title of Syed Abdul Wajid Rizvi, Advocate v. Collector Land Acquisition, Abbottabad and 2 others. The learned Peshawar High Court, Abbottabad Bench, decided the appeals filed by the affectees/owner and cross-objections No.1 of 2001. The amount of compensation was further enhanced by the learned Judges of the above mentioned learned High Court at Rs.7 lacs per Kanal in respect of all the lands irrespective the kind of land, along with 15% compulsory acquisition charges and 6% simple interest awarded from the date of possession till payment. This judgment of the learned Peshawar High Court, Abbottabad Bench has been assailed through the above mentioned appeals. 3. Learned D.A.-G. has submitted that enhancement of rate of compensation without classification was not in accordance with the law. The learned Peshawar High Court has not kept in view the average price of the land of the crucial period as described by Land Acquisition Act and Rules made thereunder, while delivering the impugned judgment. Therefore, the judgment of the learned High Court may be set aside. 4. Conversely, the respondent's learned counsel have supported the impugned judgment by their arguments and after referring to the record, it has been stated that the entire land acquired can be classified into two categories. Either the land was commercial or it was consisting of land fit for the purpose of construction of offices or residences. They have further argued that the potential value of the land was kept in view while delivering the impugned judgment, therefore, the assailed judgment may be kept intact. 5. We have considered the arguments and have gone through the record with the assistance of learned counsel of the parties. We have found that the land acquired was lying within the cantonment limits of Abbottabad. Roads, water, gas, electricity, schools and colleges were already in existence within the vicinity of acquired land. Jinnah Abad Colony and Habib Colony, which were popular colonies of the areas were also situated near to the compulsory acquired land in question which had got a great potential of being used for offices and construction of residences. The conclusions drawn by the learned Judges of the High Court cannot be considered to be without any basis. Even during the arguments, the fact that the land acquired, was already being used by the Ministry of Defence after construction of offices and residences, etc. could not be argued that the land had no potential of being used for the above noted purposes. Section 23 of the Land Acquisition Act, 1894 is present on the Statute Book to rescue the land owners for that purpose, which has provided that while determining the compensation of the land acquired, its potential value, i.e. the land shall be used in future, has also to be kept in view. Moreover, the rule that the price of the land acquired has to be fixed in accordance with this aim and rule that willing buyer is ready to pay and the willing purchaser is prepared to receive the price so fixed, for whole of the land has to he kept in view. The entire land was rightly assessed at Rs.8,00,000 (eight lacs) per Kanal, because this price is based upon the one year average price of the period ranging from 26-5-1992 to 26-54993 and 4-11-1999 to 4-11-1990 vide Exh.P.W.1/D-1 and Exh.P.W.2/D-5 and the notification issued under section 2(a) of the Finance Act, 1992 whereunder the land under the MEO was treated at the rates of Rs.8,00,000 (eight lacs) per Kanal and land for residential purpose was fixed at Rs.6,00,000 (six lacs) per Kanal. The notification issued under section 4 in the year 1990 while award delivered on 26-54993 after a span of about three years, in which the prices of the land had increased alarmingly, the fixation of the price/compensation at Rs.7,00,000 (seven lacs) per Kanal by the learned Judges of the Peshawar High Court cannot be considered to be illegal, so as to require the setting aside of the impugned judgment. We dismiss accordingly all the appeals be maintaining the impugned judgment with no order as to costs. M.H./M-65/SC Appeals dismissed.