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Civil Appeals Nos. 9‑P to 14‑P of 1974, decided on 16th March, 1986

(On appeal from the judgment dated 18‑12‑1973 of the Peshawar High Court, Peshawar in R.F. As. Nos. 17 to 22 of 1971).

‑‑‑S. 4‑‑Acquisition of land‑‑Area in question acquired for industrial purposes‑‑No sale admittedly had taken place, in villages being acquired, during the last 15 years because of ban on sales by Government‑‑ Reference to sales in adjoining villages, held, was entirely appropriate.

Maulvi Sirajul Haq, Senior Advocate Supreme Court and M. Qasim Imam, Advocate‑on‑Record for Petitioners. (in all appeals).

Bashirullah Khan, Asstt. A.‑G. N.‑W.F.P. with Nur Ahmad, Advocate‑on‑Record (absent) for Respondent.

Qazi Attiqur Rehman, Advocate Supreme Court for the Sarhad Development Authority.

Date of hearing: 6th March, 1986.

‑This judgment will dispose of six appeals, namely, Civil Appeal No.9‑P of 1974 to Civil Appeal No.14‑P of 1974 because all the said appeals are directed against a common judgment, dated 18‑12‑1973 passed by the Peshawar High Court.

The facts forming the background to these appeals are that in order to meet the growing demand of industrialisation the Government of the erstwhile Province of West Pakistan decided to establish industrial estates at various places including Peshawar. In this connection, it was proposed to acquire land measuring 1216 Acres 4 Kanals 9 Marlas in villages Tehkal Bala and Achini Payan on either sides of the G . T .Road. The area to be acquired was ultimately reduced to 704 Acres 5 Kanals 6 Marlas in village Tehkal Bala and 163 Acres 3 Kanals in village Achini Payan. Notifications for acquisition under section 4 were issued on 26‑11‑1964 but the owners of the area in question did not object to the acquisition but merely prayed that compensation be allowed to them at the rate of Rs.30,000 per Acre. The Land Acquisition Collector, Peshawar, in his award dated 22‑12‑1964, however, awarded compensation at the rate of Rs.3, 000 per Acre only alongwith compulsory acquisition charges at 15%.

The land owners objected to the rate of compensation awarded in their favour and the matter was referred under section 18 of the Land Acquisition Act, 1894 to the civil Court for determination of the proper compensation of the acquired land and this matter was taken up by the learned Senior Civil Judge, Peshawar.

Before the learned Senior Civil Judge the appellants alone led evidence in support of their claim and no evidence whatever was led in rebuttal by the respondents.

It appears that no sale had taken place in the villages in which the land was being acquired during the last 15 years presumably on account of the ban on sales of lands under the Warsak Project Act. In this situation, the appellants, to establish their claim, produced evidence of sales which had taken place in the adjoining villages such as Sufaid Dheri, Pawaka, etc. Accordingly, copies of the sale mutations and copies of the awards pertaining to the land acquired in village Sufaid Dheri, etc. were produced through Saeedullah Khan, Qanungo, P.W.5 (Exh.P.W.5/1 to Exh.P.W.5/5). Fazal Rehman, Patwari Halqa Achini Payan, P.W.1, Khalilur Rehman, Patwari Halqa Sufaid Dheri, P.W.2 and Sahibzada Shamsur Rehman, Patwari Halqa Tehkal Payan, P.W.3 were also produced to show that no sale transaction had taken place within the last 15/20 years on account of the Kabul River Project Act and that village Nauthan Payan was adjacent to the land of the area of village Sufaid Dheri. The copies of the award produced by the appellants showed that the market value of the land acquired in village Pawaka was assessed at Rs.55,000 (Exh.P.W.5/2) and in these awards a reference was also made to the lands situated in village Sufaid Dheri. In the award (Exh.P.W.5/4), dated 13‑11‑1965 the Collector had assessed the market value of the land acquired from village Pawaka and Sufaid Dheri at Rs.34,000 per Acre. The learned Senior Civil Judge taking into account the material produced before him assessed the compensation payable for the land of the appellants at Rs.16,000 per Acre. He also allowed the compulsory acquisition charges at the rate of 25% instead of 15% by his judgment, dated 26‑11‑1970.

Feeling dissatisfied the respondents filed appeals before the Peshawar High Court and a learned Division Bench of the said learned Court, vide its judgment and decree, dated 18‑12‑1973, reversed the findings of the learned Senior Civil Judge recorded in his judgment, dated 26‑11‑1970 and restored that of the Collector, dated 22‑12‑1964 with the result that the compensation for the acquired land was reduced from Rs.16,000 to Rs.3,000 per Acre. The rate of compulsory acquisition charges was also reduced from 25% to 15%. These appeals have been preferred against the last‑mentioned judgment of the High Court.

It may be mentioned that the learned counsel for the appellants have not challenged the order of the High Court reducing the rate of compulsory acquisition charges from 25% to 15% which is in conformity with the provisions of subsection (2) of section 23 of the Land Acquisition Act. The dispute is only with regard to the reduction made by the High Court in the amount of compensation awarded regarding the land acquired.

It appears that the High Court considering that the evidence led before the Senior Civil Judge was not directly in relation to the villages in which the land was acquired, was pleased to summon Phool Badshah, Naib Saddar Qanungo, Peshawar, to give additional evidence before it and also to furnish a detailed sketch of the land showing its location and distance from the land governed by the awards produced by the appellants. The said witness, in his testimony, deposed that the distance between the village Abadi of Sufaid Dheri and the industrial area would be about 21 miles and that between Tehkal Payan and the industrial estate would be 41 miles. He could not say what the distance between Achini Payan and the industrial estate was. However, he corrected himself and stated that it would be approximately 2 miles. The distance from The distance from village Pawaka was stated to be 6 miles. The learned Judges interpreted, this evidence to imply that reference to the sales and awards of the neighbouring villages was irrelevant and proceeded to reverse the judgment of the Senior Civil Judge, observing as follows:‑

"We are satisfied that by assessing the market value of their land at Rs.3,000 per Acre the respondent would appear to have been amply compensated even in regard to the prospective user of their land to irrigation by Warsak High Level Canal. After all, the price of best kind of irrigated land in the colony districts of Punjab would at best be no more than Rs.4,000 per Acre and keeping this figure in view, the price of Rs.3,000 per Acre awarded to respondents would appear to be entirely reasonable."

In support of these appeals the learned counsel for the appellants have submitted that the evidence upon which the learned Senior Civil Judge had acted was quite relevant. The area in question was being acquired for industrial purposes and admittedly no sales had taken place in these villages during the last 15 years. Consequently, reference to the sales in the adjoining village was entirely appropriate. In these circumstances, to ignore the entire evidence relating to the said sales was not justified. The High Court had, therefore, acting on irrelevant considerations ignored relevant material and its judgment was perverse. I n coming to the conclusion that the compensation at the rate of Rs.3, 000 per Acre awarded by the Collector was entirely reasonable and the enhancement therein ordered by the Senior Civil Judge was liable to be set aside the High Court was wholly unjustified.

The learned counsel for the respondents Mr. Bashirullah Khan, Assistant Advocate‑General, N.‑W.F.P. and Qazi Attiqur Rehman for the Sarhad Development Authority were unable to give any satisfactory answer to these submissions.

We have gone through the entire record and are inclined to agree with the submissions of the learned counsel for the appellants. The reference to the Punjab Colony District in the context appears to be totally irrelevant and in the circumstances the evidence brought on the record by the appellants regarding the sale mutations and awards relating to the adjacent coupled with the oral testimony of the Halqa Patwaris concerned could legitimately form the basis of the compensation of the land acquired allowed by the Senior Civil Judge. In these circumstances, we consider that the judgment of the learned Senior Civil Judge did not merit interference.

The result is that we would allow these appeals, set aside the judgment of the High Court, dated 18‑12‑1973 and restore that of the Senior Civil Judge, dated 26‑11‑1970 subject to the modification that the compulsory acquisition charges shall be calculated at the rate of 15% instead of 25%.

The appeals are allowed in the above terms but there shall be no order as to costs.

M.B.A. Appeals allowed.

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