-Determination of compensation--Section 23 of Act provides mechanism to be considered for determining amount of compensation to be awarded to landowners for compulsorily acquiring their property, which ......

  PLJ 2024 Quetta (Note) 63

Present: Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ.
DEPUTY COMMISSIONER/COLLECTOR, QUETTA--Appellant
versus
HABIB-UR-REHMAN and others--Respondents
C.M.A. No. 20 of 2021, 02, 10, 139 to 141, 143 & 152 of 2022,
decided on 27.10.2022.

Land Acquisition Act, 1894 (I of 1894)--

----Ss. 4 & 18--Acquisition of land--Reference for enhancement of compensation--Partially allowed--Enhancement of compensation and construction rate--Challenge to--Suit land was commercial in nature--The property in question was situated in urban area within limit of Municipal Corporation--The land in question price had been escalated as land in question was situated in mid of city of Quetta and most properties were commercial in nature--The documentary evidence had not been refuted by appellant--The impugned judgment/decree passed by Referee Court was in accordance with settled principle of law and based on correct appreciation of evidence on record and thus warrant no interference by High Court--Appeals dismissed.        [Para 7] B & C

Land Acquisition Act, 1894 (I of 1894)--

----Ss. 4 & 23--Determination of compensation--Section 23 of Act provides mechanism to be considered for determining amount of compensation to be awarded to landowners for compulsorily acquiring their property, which includes market value of land at date of publication of notification under Section 4 of Act, damages sustained by person interested by reason of his construction, deprivation of running business by force displacement.    [Para 6] A

PLD 2010 SC 719, 2014 SCMR 75, 1999 SCMR 1647, 1996 SCMR 1361, 1996 CLC 1193, PLJ 1996 Peshawar 107 (DB), 1972 SCMR 138 & 1978 SCMR 5 ref.

Mr. Shahid Baloch, AAG for Appellant.

Mr. Jameel Shah, Advocate for Private Respondents.

Date of hearing: 25.10.2022.

Judgment

Muhammad Ejaz Swati, J.--These civil miscellaneous appeals have been filed by Deputy Commissioner (Revenue Section), Quetta against the judgment/decree dated 17-08-2021 and 1-6-2022, passed by Additional District and Sessions Judge-V Quetta (Referee Court) and judgment/decree dated 12-10-2021, passed by learned Additional District and Sessions Judge-III Quetta and judgment/decree dated 22-11-2021, passed by Additional District and Sessions Judge-VII Quetta, whereby reference under Section 18 of the Land Acquisition Act, 1894 (the Act) filed by the private respondents were partly allowed and compensation of land was enhanced from
Rs. 700/- to Rs. 7000/-and Rs. 200/- rate of construction was also enhanced with 15% compensation cost and 15% additional cost from accrual of cause of act till realization of the amount.

2. The facts of the cases in brief are that land measuring 12268 square feet bearing Khasra Nos. 606, 607, 589, 608, 609, 610, 37, 38, 104, 60, 48, 105, 106, 107, 108, 111, 112, 113, 59, 46, 109, 110, 115, 116, 43, 39, 114, 93, 50, 58, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 66, and 66/1, situated in Ward No. 05, 06, 07 and 08 Urban-II, Tehsil City, District Quetta was acquired by the Deputy Commissioner/ Collector Quetta for public purpose namely widening/extension of Joint Road Quetta from Dukani Baba Chowk to ChamanPhattak. Notice under Section 4 of the Act was issued on 31-05-2018 and objection  were invited from land owners under Section 5 (A) of the Act through advertisement published in daily “Mashriq” newspaper dated 30-6-2018. On 3-8-2018 notice under Sections 6 & 7 of the Act was issued by Commissioner Quetta and on 7-8-2018 final notice under Section 9 of the Act was issued for providing opportunity to landowners for putting their objections within period of fifteen days. The learned Deputy Commissioner/Collector Quetta gave award dated 24-10-2018 Ex.AW/3-B, wherein rate of land of Ward No. 5 & 6 were fixed as Rs. 700/- per square feet respectively and for Ward No. 8 Rs. 800/- per square feet. Since the private respondents/landowners disputed the amount of compensation, therefore, they filed their separate references under Section 18 of the Act and claimed compensation at the rate of Rs. 12000/- per square feet. The learned trial/Referee court vide separate impugned judgments/decrees while partly allowing the references enhanced the compensation as mentioned herein above. The appellant assailed the above separate Judgments/decrees by way of filing above separate civil miscellaneous appeal.

3. Since identical question of law and facts are involved in these appeals and all the appeals arising out of common award dated 24-10-2018, therefore, we propose to decide the same through this common judgment.

4. The learned AAG contended that the learned trial Court while assessing the prevailing market price of the acquired land has based its findings on verbal assertion of Aw’s. That the private respondents have failed to produce any documentary evidence with regard to market value of the property in question or in the vicinity at the time of issuance of notification under Section 4 of the Act. That the impugned judgments/decrees reflect misreading and non-reading of the evidence, based on presumption and liable to be set aside.

5. The learned counsel for the private respondents contended that beside oral evidence documentary evidence was also produced, which had not been rebutted by the appellants and the learned trial Court fully appreciate the same in determining the market price of the land in question, therefore, the same is liable to be sustained.

6. We have heard the learned counsels for the parties and perused the record. Section 23 of the Act provides mechanism to be considered for determining the amount of compensation to be awarded to the landowners for compulsorily acquiring their property, which includes the market value of the land at the date of publication of notification under Section 4 of the Act, the damages sustained by the person interested by reason of his construction, deprivation of running business by force displacement. The next best method is to take into consideration the instance of sale of the adjacent land in the neighboring locality, its potentialities and its likelihood of developing and improvement and past sale would be necessary factor for determining rate of compensation. Reliance is placed on cases Land Acquisition Collector and other versus Mst. Iqbal Begum and others (PLD 2010 SCL 719), Province of Punjab through Land Acquisition Collector and another versus Begum Aziza (2014 SCMR 75), Murad Khan through its widow and 13 others versus Land Acquisition Collector, Peshawar and another (1999 SCMR 1647), Government of Sindh and two others versus Syed Shakir Ali Jafri and six others (1996 SCMR 1361), Collector, Land Acquisition, Nowshera and another versus Abdur Rashid and others (1996 CLC 1193), Collector Land Acquisition, Nowshera versus Abdur Rashid and others (PLJ 1996 Peshawar 107 (DB)), West Pakistan WAPDA versus Mst. Hiran Begum (1972 SCMR 138) and Government of Pakistan, Rawalpindi and another versus Malik Muhammad Aslam and five others (1978 SCMR 5).

In case titled Land Acquisition Collector and other versus Mst. Iqbal Begum and others (PLD 2010 SC 719), the Honorable Supreme Court of Pakistan observed as under:

“The principles laid down for determination of compensation reflect anxiety of law-giver to compensate those deprived of property adequately enough so as to be given gold for gold and not copper for gold.” (Nazarul Hussain v. Collector PLD 1990 Lahore 472, Land Acquisition Officer v. Kambar Ali Beg (1981 CLC 556). Various factors have to be taken into consideration i.e. the size and shape of the land, the locality and its situation, the tenure of property, the user, its potential value, and the rise or depression in the value of the land in the locality and even in its near vicinity. In our view real, proper and potential value, keeping in view all the relevant factors have been determined and it is unexceptionable.”

In case titled Province of Punjab through Land Acquisition Collector and another versus Begum Aziza (2014 SCMR 75), the Honorable Supreme Court of Pakistan while expending the scope observed as under:

“The market value is normally taken up as one existing on the date of notification under Section 4(1) of the Land Acquisition Act under the principle of willing buyer and willing seller while the potential value was the value to which similar lands could be put to any use in future. Thus in determining the quantum of compensation the exercise may not be restricted to the time of the aforesaid notification but its future value may be taken into account.

In case titled Land Acquisition Collector, Lahore and another versus Mst. Surraya Mehmood Jan (2015 SCMR 28), the Honorable Supreme Court of Pakistan observed as under:

“The principles that can be gleaned from the aforesaid judicial Precedents are that the term “market-value” as employed in Section 23 of the Act of 1894 implies the price that a willing Purchaser would pay to a willing buyer in an open market arms Length transaction entered into without any compulsion. Such Determination must be objective rather than subjective. While Undertaking this exercise, contemporaneous transactions of the Same, adjoining or adjacent as well as the land in the same vicinity or locality; in dissenting precedents, may be taken into Account. An award of compensation of a similar, adjacent, adjoining land or in respect of the land acquired in the same vicinity or locality cannot be ignored. The classification of the land in the Revenue Record cannot be the sole criteria for determining its value and its potential i.e. the use of which the said land can be put, must also be a factor. In this behalf, the use of the land in its vicinity needs to be examined.

A bare reading of the provision in question i.e. Section 23 of the Act of 1894 reveals that the landowner is entitled to compensation and not just market-value, hence, loss or injury occasioned by its severing from other property of the landowner, by change of residence or place of business and loss of profits are also relevant. The delay in the consummation of the acquisition proceedings cannot be lost sight of. While conducting the aforesaid exercise, oral evidence, if found, credible and reliable can also be taken into account.”

In case titled Sarhad Development Authority N.W.F.P (Now KPK) through COO/CEO (Officio) and another versus Nawab Ali Khan and others (2020 SCMR 265), the Honorable Supreme Court of Pakistan highlighted the determination of market value within the preview of Section 23 of the Act and other factors and observed as under:

“Thus, in view of the above, it would be safe to state that not only in Khyber Pahktunkhwa, but even in other three provinces, where Section 23(1) of the Act has not been amended, it is noted that: firstly, the value of similar land in the adjoining khasras and mauzas to the acquired land was taken into consideration for determining the amount of compensation to be awarded to owners of the acquired property; and secondly. The escalation of price of land during the acquisition period till its culmination in issuance of the award could be taken into consideration; and thirdly, for assessing the “potential value” of the acquired land, the most critical factor, which is to be kept in mind is the future utility of the proposed acquired land. Keeping in view the availability of facilities for its said utilization; and finally, there can be no mathematical formula set for the determination of the compensation due to the landowners for the compulsory acquisition of their property And thus, various factors depending on the circumstances of each case would cumulatively form the basis for determining the “market value” of the acquired land within the contemplation of Section 23(1) of the Act.”

7.  In the instant case the property in question is situated in urban area within the limit of Municipal Corporation of Ward No. 6, 7 and 8 of District Quetta. The Deputy Commissioner/Collector Quetta in the year 2011, while giving an award of adjacent Property/land dated 14-5-2011 Ex.AW/3-A produced in civil miscellaneous Appeal No. 20 of 2021 had also acquired land situated in Mahal & Mouza Ward No. 7, 8 & 9 Tappa Urban 2 & 3, Tehsil & District Quetta for public purpose namely “construction of flyover at Sariab Phattak Quetta”, wherein compensation of Rs. 5000/-, Rs. 4200/- and Rs. 3500/- per square feet was fixed and after seven years of the above award, the land in question price has been escalated as the land in question is situated in the mid of the city of Quetta and most properties are commercial in nature. The above documentary evidence has not been refuted by the appellant. The impugned judgment/decree passed by the learned Referee Court is in accordance with settled principle of law and based on correct appreciation of the evidence on record and thus warrant no interference by this Court.

In view of above, the Civil Miscellaneous Appeals No. 20 of the 2021 and Civil Miscellaneous Appeals No. 2, 10, 139, 140, 141, 143 and 152 of 2022 are dismissed. The parties are left to bear their own cost. Decree sheet be drawn.

(Y.A.)  Appeals dismissed