FOZIA BEGUM Versus GOVERNMENT OF N.-W.F.P.
ABDUL KARIM KHAN KUNDI, J By an award dated 14-12-1978 the land Acquistion collector Abbottasbad acquired 15 Kanalas 1 Marla area in Khasra Nos, 344,345 and 1487/346 situated in the vicinity of Village Jhangi Tehsil and District Abbottabad for the construction of office and staff quarters of public Health Engineering Department and awarded the compensation of the land at the rate of Rs. 31.372,80 per kanal after considering the entire land as of Hotar kind although land in Khasra Nos. 345 and 1487/346 was of inferior Bela kind he also awarded 15% compulsory acquisition charges over and above the amount of compensation.
2. For acquisition of the land a notification under section 4 of the Land Acquisition Act, 1894, hereinafter referred to as Act, was published in the gazette notification on 15‑3‑1978 informing the affected land owners about the ensuing acquisition of the land by the Government. Thereafter, notifications under sections 5 and 6 of the Act were published and last notices under section 9 of Act were served on the affected land owners that in response Mst. Fozia Begum the appellant had claimed the compensation of the land at the rate of Rs.80,000 per Kanal due to the potentiality and suitability of the suit land for the purpose of construction. The Land Acquisition Collector had however, awarded the compensation on the basis of one year average of Hotar kind of land preceding the notification under section 4 under a pretext that the land was being acquired for construction purposes. Reasoning may not be apparently sound.
2‑A. Feeling dissatisfied with the award of compensation a reference was taken before the learned Senior Civil Judge through the Collector under section 18 of the Act where the appellant produced voluminous Revenue record of averages but all pertaining to post acquisition period. Appellant further examined Saith Akbar Ali, her attorney and husband, who stated to have purchased the suit land for the construction of houses and that he had the plans to later on convert the suit property into commercial area on account of its situation on the main road adjoining to Burn Hall College, Abbottabad. The learned Acquisition Judge has not considered the post acquisition averages relevant to the point in issue and had also found the authenticity of such one year average as doubtful. He had further held that the affectees had already been done favour by the Land Acquisition Collector as only 14 Marlas area was of Hotar kind while the entire land was adjudged by the Collector as of Hotar kind and accordingly awarded compensation at the rate of better kind.
3. After going through the evidence on record and hearing the learned counsel for the appellant we posed him a simple query that herein the notification under section 4 of the Act was published on 7‑3‑1978 and the award was formulated on 14‑12‑1978 within a period of 9 months after the completion of the processes of notifications under sections 5 and 6 and notices under section 9 of the Act and that as such the market value of the land at the date of the publication of the notification under section 4 of the Act shall be the determinative factor as so required under section 23(1) (firstly) of the Act and the transactions effected subsequent to the said notification will not be considered for determining the compensation. We, however, readily agreed to his argument that market price means one at which a willing purchaser is prepared to purchase and a willing seller is prepared to sell but in any case the determinative date would be that of the publication of the notification under section 4 of the Act. We enquired from the learned counsel for the appellant that as per jamabandi Zer‑e‑Kar prepared by Patwari Halqa on 4‑11‑1981 placed on file by him there was no reference to any transfer mutation effected in his favour and that how he had become owner of the acquired land. Learned counsel for the appellant stated at the bar that his client had purchased the suit land by a registered deed sometimes after the publication of notification under section 4 of the .act but before the notices under section 9 of the Act as she had duly participated in the proceedings before the Land Acquisition Collector and had claimed the enhanced compensation. He had not placed on file the sale‑deed to determine the price paid by a willing purchaser for the suit land on or after the notification under section 4 of the Act. In a way best available evidence has been withheld by the appellant, necessarily for ulterior motive, since it has been only stated at the trial that the property has been purchased by the appellant for the construction of the house without mentioning the sale price, however, when pressed at the bar present in Court he state that he had purchased the suit land at the rate of Rs.25,000 per Kanal but had entered the sale price at Rs.15,000 per Kanal to evade stamp duty and registration charges. The jamabandi Zer‑e‑Kar was also referring to one mutation. No. 3553 attested on 28‑7‑1976
1 vide total land of 9 Kanals 19 Marlas was purchased for Rs.1,20,000 which comes to about Rs.12,000 per Kanal.
4. Herein the market value of the land at the date of the publication of the notification under section 4 of the Act shall be the first and most important factor in determining the amount of compensation to be awarded for the land acquired since the acquisition process was finalized and award formulated within a reasonable period of 9 months. A notification under section 4 of the Act is a first step towards the commencement of acquisition proceedings whereby the intention of the Provincial Government to acquire the land for public purpose is notified impliedly warning the public at large that any transaction whatsoever A with regard to the land intended to be acquired would be made by the transferees at their own risk. A transferee of the acquired land, after the notification under section 4 of the Act would not be entitled to go for business and claim a higher compensation than what he/she had paid for. Herein the appellant has already been awarded compensation at a much higher rate than the price she has paid for Resultantly finding no merit in this appeal, we hereby order its dismissal with costs.
A/A./P Appeal dismissed