2015 M L D 1709
2015 M L D 1709
[Peshawar]
Before Abdul Latif Khan and Musarrat Hilali, JJ
IJAZ AHMED and 13 others---Appellants
versus
GOVERNMENT OF N.-W.F.P. through District Collector, District Bunair and 4 others---Respondents
R.F.A. No.139 of 2005, decided on 20th November, 2014.
Land Acquisition Act (I of 1894)---
----Ss.18, 31 (2), 23 & 4---Compensation, determination of---Criteria---Reference to court---Factors to be considered for determination of compensation---Person who had received the amount otherwise than "under protest" was not entitled to make any application under S. 18 of Land Acquisition Act, 1894---No bar existed for appointment of local commissioner by the Referee Judge for determination of market value---Referee Judge, in the present case, appointed local commissioner who assessed the value of land as Rs. 60,000 to Rs. 70,000 per kanal---Potential value of the property was higher than the assessed amount in the award---Referee Judge despite confirmation of report of local commissioner had dismissed the reference which was not in line with law---District Collector had assessed the value of property at the rate of Rs. 19952 per kanal but no evidence had been produced as to how and on what criteria such amount was assessed---No document was on record in support of assessment made by the District Collector---Assessment of price in the light of evidence available had not been made by the Referee Judge---Criteria of one year average prices was not of any help for determination of market value of the acquired land---Classification and nature of land had to be taken into consideration for assessment of market value---Referee Judge had wrongly observed that hike in prices during 10 years was due to the project of the department---Prices of land had jumped high in near past and owners/objectors could not be deprived of such natural phenomenon---Referee Judge had neither properly assessed the evidence available on the file nor the remand order of the court had been complied with---Future prospect of the land acquired should be taken into consideration for determination of compensation---Market value of the land had to be taken as existed on publication of notification under S. 4 of Land Acquisition Act, 1894, and price of the similar land situated in the vicinity during preceding one year as well as from the spot inspection---Compensation fixed by the Collector could not be termed as fair value and the same would require enhancement in the light of prevailing circumstances---Land under reference comprised of different kind of properties having different potential value---Potentiality, future prospect and 'Ausat Yaksala' of the acquired land should also be taken into consideration alongwith other factors for determination of compensation---Findings of Referee Judge were misplaced---Compensation for all kind of agriculture land was assessed Rs. 50,000 per kanal whereas Rs. 1,00,000 per kanal was fixed for land which would come within the ambit of residential property---Impugned order was set aside and compensation amount was enhanced by accepting the reference petition---Appeal was accepted, in circumstances.
Mukhtiar Ahmad Khan for Appellant.
Shakirullah Afridi and Rabnawaz Khan, A.A.-G. for Respondents.
Date of hearing: 20th November, 2014.
JUDGMENT
ABDUL LATIF KHAN, J.---This appeal has been preferred against judgment and decree dated 31-3-2005 passed by learned Senior Civil Judge/Alla Illaqa Qazi, Buner at Daggar, whereby objection petition of the appellants against Award dated 21-5-1999, was dismissed.
2. Brief facts of the case are that vide Award dated 21-5-1999, the land of appellants was, acquired and Rs.19952 per kanal was fixed as compensation alongwith compulsory acquisition charges. Dissatisfied from the same the appellants preferred Objection Petition for enhancement of compensation amount which was contested by the respondents and after recording pro and contra evidence the learned trial Court vide order dated 12-2-2002, partially allowed the Objection Petition. Aggrieved from the same the appellants approached this Court whereas respondents also impugned the said judgment before this Court. Both the appeals were consolidated and disposed of by this Court through single order dated 15-12-2004 whereby judgment and decree of Referee Judge was set aside and case was remanded back to the Referee Judge with certain observations. After remand the Referee Judge recorded additional evidence of the parties and appointed Local Commission who submitted his report and was also examined by the learned Referee Judge and after hearing counsel for the parties learned Referee Judge, vide impugned judgment and decree dated 31-3-2005, dismissed the Objection Petition filed by the appellants, hence the instant Regular First Appeal.
3. Arguments heard record perused.
4. A perusal of record reveals that property measuring 417 Kanals, 4 Marla and 2 Sarsai, was acquired by dint of Award dated 21-5-1999, for the construction of Pehur High Level Canal by the District Land Acquisition Collector, Mardan at the rate of Rs.19952 per kanal. The owners/Objectors being dissatisfied with the award filed Reference under section 18 of Land Acquisition Act, 1894 which was partially allowed along with connected petition. Both the judgments and orders were assailed before this Court and vide judgment and order dated 15-12-2004 on acceptance of appeal the matter was remanded back to the Referee Judge for decision afresh after recording additional evidence.
5. The learned Referee Judge in compliance to the order of this Court recorded evidence and dismissed the petition vide impugned judgment dated 31-3-2005. Statement of Girdawar Circle Totalay, Buner was recorded after remand who has produced the five years average Exh.RW.1/1. Gul Jamal, Muhammad Israr and Rahimul Wahab were examined in favour of the objection petition. The Local Commissioner was appointed who submitted his reports Exh.CW.1/1 to Exh.CW.1/4 and his statement was also recorded as CW.1. The Local Commissioner has assessed the value of land under reference at the time of acquisition as Rs.60,000 to Rs.70,000 per kanal. He has also given the future potential of the property and in his opinion and site plan prepared by him, the potential value of the property is higher than that assessed in the award by the District Collector. The Referee Judge despite confirmation of report of Local Commissioner has dismissed the reference which is not in line with law. The District Collector has assessed the value of property at the rate of Rs. 19952 per kanal but no evidence has been produced as to how this amount was assessed and what was the criteria with the District Collector as no document has been brought on file in support of his assessment. The assessment of price in the light of evidence available has not been made by the Referee Judge with special reference to the effect that prices of land jump high in the near past and even criteria of one year average prices in appropriate cases was not of any help for determination of market value of the acquired land.
6. It is pertinent to mention that resorting to the spot inspection through Local Commissioner to evaluate the land on the basis of future potentiality of acquired land and for determining the market value ample power exists with the Referee Judge and there is no legal bar for appointment of local commission to determine the value of land, classification and nature of land has to be taken into consideration for assessment of market value. The Referee Judge has wrongly observed that hike in prices during last 10 years was due to the project of the respondents. It may be one of the supporting features however the prices of land jumps high in near past and the objectors/owners cannot be deprived of this natural phenomenon solely on the ground that the prices were raised due to project of respondents. The evidence available on file has not been properly assessed nor the remand order of this Court has properly been complied with. Astonishingly the Referee Judge has observed that Exh.P.W.2/D-1 the acquaintance Roll does not contain the factum of receipt of compensation under protest by owners despite the fact that admittedly the word 'protest' is found mentioned in the column of receipt and it has been observed that as the word 'protest' has not been mentioned with the signature of objectors therefore the objectors are estopped to claim the enhancement as they have received the amount without any objection. Thus findings of the Referee Judge are misplaced for the reason that acquaintance rolls containing word 'protest' and is sufficient to prove that the amount has been received under protest. Learned counsel for respondents confined himself only to this aspect of the case and has not questioned the merit of the case and has referred to proviso of subsection (2) of Section 31 of Land Acquisition Act, 1894 which provides that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18 of the Act ibid. This provision is not attracted to the instant case as Exh.P.W.2/D-1 does contain the word 'protest' which cannot be held safely that the appellants/objectors have received the compensation amount without any objection.
7. The factors requiring consideration for determination of compensation were given in Section 23 of the Land Acquisition Act, which are to be taken into consideration for the assessment of future prospect of the land acquired and while determining the potential of land its use in future ought to be considered. The market value of the land is normally to be taken as exists on publication of notification under section 4 of the Act for determining the exact value and the price of the similar land situated in the vicinity during preceding one year, as well as the amount to be assessed from spot inspection. The vicinity where the acquired land is situated and the location speaks for potentiality of the same which should be taken into account for determination of correct market value. The compensation fixed by the Collector could not be termed as fair value and requires enhancement in the light of prevailing circumstances. Needless to mention that compensation is altogether different implication than that the price of land which is to be considered in the light of inconveniences suffered by the owners/objectors and are on different considerations than the price of the land. The available evidence of the parties and report of Local Commissioner leads to the conclusion that land under reference comprise upon different kind of properties having different potential values, the compensation of which has to be assessed not only upon the 'Ausat Yaksala' but all the factors are to be taken into consideration including potentiality and future prospect of the acquired land and as such the compensation for all kind of agriculture land is assessed Rs.50,000 per kanal whereas Rs.1,00,000 per kanal is fixed for land comes within the ambit of residential property.
8. For the aforesaid reasons I allow the instant petition, set aside the impugned order and on acceptance of reference petition enhance the amount of compensation as above. Order accordingly.
ZC/503/P Appeal allowed.
[Peshawar]
Before Abdul Latif Khan and Musarrat Hilali, JJ
IJAZ AHMED and 13 others---Appellants
versus
GOVERNMENT OF N.-W.F.P. through District Collector, District Bunair and 4 others---Respondents
R.F.A. No.139 of 2005, decided on 20th November, 2014.
Land Acquisition Act (I of 1894)---
----Ss.18, 31 (2), 23 & 4---Compensation, determination of---Criteria---Reference to court---Factors to be considered for determination of compensation---Person who had received the amount otherwise than "under protest" was not entitled to make any application under S. 18 of Land Acquisition Act, 1894---No bar existed for appointment of local commissioner by the Referee Judge for determination of market value---Referee Judge, in the present case, appointed local commissioner who assessed the value of land as Rs. 60,000 to Rs. 70,000 per kanal---Potential value of the property was higher than the assessed amount in the award---Referee Judge despite confirmation of report of local commissioner had dismissed the reference which was not in line with law---District Collector had assessed the value of property at the rate of Rs. 19952 per kanal but no evidence had been produced as to how and on what criteria such amount was assessed---No document was on record in support of assessment made by the District Collector---Assessment of price in the light of evidence available had not been made by the Referee Judge---Criteria of one year average prices was not of any help for determination of market value of the acquired land---Classification and nature of land had to be taken into consideration for assessment of market value---Referee Judge had wrongly observed that hike in prices during 10 years was due to the project of the department---Prices of land had jumped high in near past and owners/objectors could not be deprived of such natural phenomenon---Referee Judge had neither properly assessed the evidence available on the file nor the remand order of the court had been complied with---Future prospect of the land acquired should be taken into consideration for determination of compensation---Market value of the land had to be taken as existed on publication of notification under S. 4 of Land Acquisition Act, 1894, and price of the similar land situated in the vicinity during preceding one year as well as from the spot inspection---Compensation fixed by the Collector could not be termed as fair value and the same would require enhancement in the light of prevailing circumstances---Land under reference comprised of different kind of properties having different potential value---Potentiality, future prospect and 'Ausat Yaksala' of the acquired land should also be taken into consideration alongwith other factors for determination of compensation---Findings of Referee Judge were misplaced---Compensation for all kind of agriculture land was assessed Rs. 50,000 per kanal whereas Rs. 1,00,000 per kanal was fixed for land which would come within the ambit of residential property---Impugned order was set aside and compensation amount was enhanced by accepting the reference petition---Appeal was accepted, in circumstances.
Mukhtiar Ahmad Khan for Appellant.
Shakirullah Afridi and Rabnawaz Khan, A.A.-G. for Respondents.
Date of hearing: 20th November, 2014.
JUDGMENT
ABDUL LATIF KHAN, J.---This appeal has been preferred against judgment and decree dated 31-3-2005 passed by learned Senior Civil Judge/Alla Illaqa Qazi, Buner at Daggar, whereby objection petition of the appellants against Award dated 21-5-1999, was dismissed.
2. Brief facts of the case are that vide Award dated 21-5-1999, the land of appellants was, acquired and Rs.19952 per kanal was fixed as compensation alongwith compulsory acquisition charges. Dissatisfied from the same the appellants preferred Objection Petition for enhancement of compensation amount which was contested by the respondents and after recording pro and contra evidence the learned trial Court vide order dated 12-2-2002, partially allowed the Objection Petition. Aggrieved from the same the appellants approached this Court whereas respondents also impugned the said judgment before this Court. Both the appeals were consolidated and disposed of by this Court through single order dated 15-12-2004 whereby judgment and decree of Referee Judge was set aside and case was remanded back to the Referee Judge with certain observations. After remand the Referee Judge recorded additional evidence of the parties and appointed Local Commission who submitted his report and was also examined by the learned Referee Judge and after hearing counsel for the parties learned Referee Judge, vide impugned judgment and decree dated 31-3-2005, dismissed the Objection Petition filed by the appellants, hence the instant Regular First Appeal.
3. Arguments heard record perused.
4. A perusal of record reveals that property measuring 417 Kanals, 4 Marla and 2 Sarsai, was acquired by dint of Award dated 21-5-1999, for the construction of Pehur High Level Canal by the District Land Acquisition Collector, Mardan at the rate of Rs.19952 per kanal. The owners/Objectors being dissatisfied with the award filed Reference under section 18 of Land Acquisition Act, 1894 which was partially allowed along with connected petition. Both the judgments and orders were assailed before this Court and vide judgment and order dated 15-12-2004 on acceptance of appeal the matter was remanded back to the Referee Judge for decision afresh after recording additional evidence.
5. The learned Referee Judge in compliance to the order of this Court recorded evidence and dismissed the petition vide impugned judgment dated 31-3-2005. Statement of Girdawar Circle Totalay, Buner was recorded after remand who has produced the five years average Exh.RW.1/1. Gul Jamal, Muhammad Israr and Rahimul Wahab were examined in favour of the objection petition. The Local Commissioner was appointed who submitted his reports Exh.CW.1/1 to Exh.CW.1/4 and his statement was also recorded as CW.1. The Local Commissioner has assessed the value of land under reference at the time of acquisition as Rs.60,000 to Rs.70,000 per kanal. He has also given the future potential of the property and in his opinion and site plan prepared by him, the potential value of the property is higher than that assessed in the award by the District Collector. The Referee Judge despite confirmation of report of Local Commissioner has dismissed the reference which is not in line with law. The District Collector has assessed the value of property at the rate of Rs. 19952 per kanal but no evidence has been produced as to how this amount was assessed and what was the criteria with the District Collector as no document has been brought on file in support of his assessment. The assessment of price in the light of evidence available has not been made by the Referee Judge with special reference to the effect that prices of land jump high in the near past and even criteria of one year average prices in appropriate cases was not of any help for determination of market value of the acquired land.
6. It is pertinent to mention that resorting to the spot inspection through Local Commissioner to evaluate the land on the basis of future potentiality of acquired land and for determining the market value ample power exists with the Referee Judge and there is no legal bar for appointment of local commission to determine the value of land, classification and nature of land has to be taken into consideration for assessment of market value. The Referee Judge has wrongly observed that hike in prices during last 10 years was due to the project of the respondents. It may be one of the supporting features however the prices of land jumps high in near past and the objectors/owners cannot be deprived of this natural phenomenon solely on the ground that the prices were raised due to project of respondents. The evidence available on file has not been properly assessed nor the remand order of this Court has properly been complied with. Astonishingly the Referee Judge has observed that Exh.P.W.2/D-1 the acquaintance Roll does not contain the factum of receipt of compensation under protest by owners despite the fact that admittedly the word 'protest' is found mentioned in the column of receipt and it has been observed that as the word 'protest' has not been mentioned with the signature of objectors therefore the objectors are estopped to claim the enhancement as they have received the amount without any objection. Thus findings of the Referee Judge are misplaced for the reason that acquaintance rolls containing word 'protest' and is sufficient to prove that the amount has been received under protest. Learned counsel for respondents confined himself only to this aspect of the case and has not questioned the merit of the case and has referred to proviso of subsection (2) of Section 31 of Land Acquisition Act, 1894 which provides that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18 of the Act ibid. This provision is not attracted to the instant case as Exh.P.W.2/D-1 does contain the word 'protest' which cannot be held safely that the appellants/objectors have received the compensation amount without any objection.
7. The factors requiring consideration for determination of compensation were given in Section 23 of the Land Acquisition Act, which are to be taken into consideration for the assessment of future prospect of the land acquired and while determining the potential of land its use in future ought to be considered. The market value of the land is normally to be taken as exists on publication of notification under section 4 of the Act for determining the exact value and the price of the similar land situated in the vicinity during preceding one year, as well as the amount to be assessed from spot inspection. The vicinity where the acquired land is situated and the location speaks for potentiality of the same which should be taken into account for determination of correct market value. The compensation fixed by the Collector could not be termed as fair value and requires enhancement in the light of prevailing circumstances. Needless to mention that compensation is altogether different implication than that the price of land which is to be considered in the light of inconveniences suffered by the owners/objectors and are on different considerations than the price of the land. The available evidence of the parties and report of Local Commissioner leads to the conclusion that land under reference comprise upon different kind of properties having different potential values, the compensation of which has to be assessed not only upon the 'Ausat Yaksala' but all the factors are to be taken into consideration including potentiality and future prospect of the acquired land and as such the compensation for all kind of agriculture land is assessed Rs.50,000 per kanal whereas Rs.1,00,000 per kanal is fixed for land comes within the ambit of residential property.
8. For the aforesaid reasons I allow the instant petition, set aside the impugned order and on acceptance of reference petition enhance the amount of compensation as above. Order accordingly.
ZC/503/P Appeal allowed.
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