NATIONAL HIGHWAY AUTHORITY through Chairman Versus JAMIL-UR-REHMAN
ROZI KHAN BARRECH, CJ.--- Briefly narrated the facts of the case are that the Government of Balochistan acquired the land situated at Mohal Karez Akbar, Mouza Malazai, owned by the private landowner, namely Jameel ur Rehman (appellant), for NHA (respondent) for construction of Kuchlak Bypass KQC N-25 vide award dated 17.07.2017, whereby the compensation amount of the acquired land was fixed at Rs.20/- per Sq.Ft along with 15% compulsory acquisition charges. Being dissatisfied, the appellant Jameel Ur Rehman challenged the award through his respective reference petition filed under Section 18 of the Land Acquisition Act, 1894, (hereafter "the Act" ) before the learned Additional District Judge Kuchlak ( referee judge ) for enhancement of the compensation amount to Rs.700/- per Sq.Ft, which was disposed of in terms of judgment dated 24.03.2020 ( impugned judgment ) entitling the landowner/appellant for enhanced compensation amount from Rs.20/- to that of Rs.120/- per Sq.Ft with 15% compulsory acquisition charges.
Being aggrieved from the said findings of the referee judge, the landowner filed the C.M. Appeal No. 05 of 2020 before this court for further enhancement of the compensation amount of his acquired land, while the acquiring department, i.e. NHA, filed C.M. Appeal No. 05 of 2020 for straightway rejection of the reference of the landowner.
After hearing arguments of learned counsel for the parties, both the appeals were dismissed by this court vide judgment dated 28.12.2020. Being aggrieved from the judgment dated 28.12.2020 passed by this court both the parties filed civil petitions before the Hon'ble Supreme Court which were disposed of on 25.07.2022 and the case was remanded to this court with direction that "to dispose of the cases on merit and it was also directed that both the parties may produce such additional documents as they consider appropriate subject to all just and legal exceptions or objections taken by either side".
Since both the parties through their respective appeals, seek to establish their respective success, they question the validity, propriety and legality of the impugned judgment dated 24.03.2020 passed by the referee judge, therefore, the rights and interests of the respective parties are determined through this single judgment.
2. We have heard the learned counsel for the parties and perused the record.
3. The respondent (NHA) questioned the impugned judgment in order to nullify the impact of the determination by the court of first instance, pursuant whereto while partially allowing the Reference Application filed by the appellant, the amount of compensation was enhanced from Rs.20/- per Sq.Ft to Rs.120/- per Sq.Ft along with 15% compulsory acquisition charges. Conversely, the appellant herein, through his connected appeal, seeks further enhancement of compensation by modification of the impugned judgment.
Since the matter in question revolves around the determination of fair, proper and just compensation of the acquired land, therefore, it is more apt to reproduce section 23 of the Land Acquisition Act, 1894, which reads as under:-
23. Matters to be considered in determining compensation. (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-first, the market-value of the land at the date of the publication of the notification under section 4, subsection (1).
EXPLANATION-For the purpose of determining the market-value, the Court shall take into account transfer of land similarly situated and in similar use. The potential-value of the land to be acquired if put to a different use shall only be taken into consideration if it is proved that land similarly situated and previously in similar use has, before the date of the notification under subsection (1) of section 4, been transferred with a view to being put to the use relied upon as affecting the potential value of the land to be acquired:
Provided that (i) if the market-value has been increased in consequence of the land being put to a use which is unlawful or contrary to public policy that use shall be disregarded and the market-value shall be deemed to be the market-value of the land if it were put to ordinary use; and
(ii) if the market-value of any building has been increased in consequence of the building being so overcrowded as to be dangerous to the health of the inmates, such overcrowding shall be disregarded and the market-value shall be deemed to be the market-value of the building if occupied by such number of persons only as can be accommodated in it without risk of danger to health from overcrowding.
Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof. thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, moveable or immoveable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
(2) In addition to the market-value of the land as above provided, the Court shall award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition, if the acquisition has been made for a public purpose and a sum of twenty-five per centum on such market-value if the acquisition has been made for a Company.
The very purpose and; object of the ibid provision of law is to protect the rights and; interests of the landowners by the Court while determining the proper and; correct amount of compensation for their acquired land keeping in mind its potential value and; future prospects in order to save them from the losses and damages sustained by them as well as their other properties injuriously affected by the acquisition of the acquired land.
4. The august Supreme Court in a number of judgments has provided guidelines for the determination of fair, proper and; just compensation of the land compulsory acquired for the public purpose, which postulate that firstly, the value of similar land in the adjoining khasras and; mouzas to the acquired land was taken into consideration for determining the amount of compensation to be awarded to owners of the acquired property; 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. Reliance can be placed on the cases Land Acquisition Collector and others v. Mst. Iqbal Begum and others (PLD 2010 SC 719), Province of Punjab through Land Acquisition Collector and another v. Begum Aziza (2014 SCMR 75), Murad Khan through its widow and 13 others v. Land Acquisition Collector, Peshawar and another (1999 SCMR 1647), Government of Sindh and 2 others v. Syed Shakir Ali Jafri and 6 others (1996 SCMR 1361), Collector, Land Acquisition, Nowshera and another v. Abdur Rashid and others (1996 CLC 1193), West Pakistan WAPDA v. Mst. Hiran Begum (1972 SCMR 138) and Government of Pakistan, Rawalpindi and another v. Malik Muhammad Aslam and 5 others (1978 SCMR 5) .
5. The fate of both the connected appeals will be dependent on analysis of material available on record and scrutiny of quantitative and qualitative impact of depositions as well as documentary evidence, which would lead to evaluating the findings contained in the impugned judgment and decree in contrast to the respective claims of the parties. In order to prove the claim regarding the status, location and potential worth of the acquired land, the landowner produced Muhammad Riaz (PW-2). According to his version, he also has a property in the said mouza and the rate of the front side of the road, according to him, is Rs.400/- per Sq.Ft and the rate of property on the backside of the road is also Rs.300/- per Sq.Ft. He stated before the court that he also sold his property at Rs.700/- per Sq.Ft. During cross-examination he stated that it is correct that he did not produce any document/sale deed regarding the property which he sold in the said mouza. The said witness did not produce even a single document or transaction deed whereby he sold the property in the said mouza at the rate of Rs.700/- per Sq. Ft. The other witness, namely Aimal Khan (PW-4), also stated in his statement that in the year 2016, a property was sold at Rs.700/- per Sq.Ft in the said mouza, but during cross-examination, he stated that he cannot tell the name of the person who sold the said property. He further stated during cross-examination that it is correct that he did not produce any document or sale deed to establish that the property was sold at Rs.400/- to Rs.700/- per Sq.Ft in the said mouza. The landowner/appellant also appeared before the court and stated in his statement that in the year 2016, the rate of the property in the said mouza was Rs.460/- per Sq. Ft, but he failed to produce any evidence or any sale deed to establish that in the year 2016 the property was sold out by any person at the rate of Rs.700/- per Sq.Ft. It is noted from the cross-examination of both the witnesses that they admitted to not producing sale deed or any document to establish that the property was sold out at Rs.700/- per Sq.Ft in the year 2016, and no document was adduced in evidence.
6. The most important piece of evidence in the instant case is the document produced by PW-1, namely Hayatullah, representative of the Deputy Commissioner's Office, i.e. Ex.P/I-G, which is the report of Tehsildar Kuchlak, which was submitted to the Deputy Commisioner at the time of acquisition of the land, according to which in mouza Malazai, the rate of property is Rs.120/- to Rs.130/- per Sq.Ft. The said document is not rebutted by the respondent (NHA) as well as the Deputy Commissioner. Further it has come to our attention that the property of the appellant is located far from the Quetta-Chaman road. The said property is not situated on the front side of the Quetta-Chaman road, and it is a barren land.
7. The examination of deposition as well as documentary evidence demonstrates that the appellant in the instant appeal and NHA in the connected appeal neither produced evidence of such a quality expected by law to be cogent and creditworthy nor quantity of witnesses or documentary evidence proving their claim produced before the court of first instance. For example, the claim of the landowner before us as well as before the learned lower Court throughout remained dented as the witness PW-2 Muhammad Riaz and PW-4 Aimal Khan themselves conceded that they did not produce in evidence any sale deed or documentary proof with respect to the rate of the property at Rs.700/- per Sq.Ft. Admittedly, the subject matter property was neither residential nor commercial nor agricultural, therefore, it could have never been claimed that the rate of acquired property fixed by the referee court was at a higher or lower in quantum than the one proposed by the Award.
8. The examination of evidence demonstrates that the appellant neither produced evidence of such a quality expected by law nor a quantity that might have justified his claim for enhancement of compensation. He was bound to produce tangible, trustworthy and credible evidence in support of his claim. His failure to place on record material evidence directly linked with the nature of the claim and an expected mode to discharge the onus was deficient, and in such a case, the referee court rightly enhanced the amount of compensation from Rs.20/- per Sq.Ft to that of Rs.120/- per Sq.Ft.
9. No illegality or irregularity whatsoever has been pointed out by both the parties in the impugned judgment passed by the referee court, which is in accordance with the settled principle of law and based on a correct appreciation of the evidence on record and thus warrants no interference by this court.
In view of the above, the Civil Miscellaneous Appeals Nos. 04 and 05 of 2020 are dismissed. The parties are left to bear their own costs. A decree sheet be drawn.
MQ/120/Bal. Appeal(s) dismissed.