LIYAR KHAN vs LAND ACQUISITION COLLECTOR/A. C., SWABI

MIAN SHAKIRULLAH JAN, C.J.-----Liyar Khan son of Ahmad Khan resident of village Shah Mansoor, Tehsil and District Swabi has filed this appeal questioning the correctness of the judgment dated 10-12-1996 passed by the learned Senior Civil fudge/Land Acquisition Judge Swabi, whereby the reference filed by the appellant under sections 18/30 of the Land Acquisition Act was dismissed.

2. The short facts of the case are that and measuring 2123 Kanals, 13 Marlas was acquired for the purpose of construction of Shah Mansoor Township. Notification under section 4 of the Land Acquisition Act, 1894 was issued by the then Deputy Commissioner Swabi vide his office Endst.

No.358---62/DK/HVC dated 10-6-1989. Declaration under section 6 of the said Act was issued by the then Commissioner, Mardan Division, Mardan vide his office Endst. No.5161---63/HVC dated 7- 10-1990. The relevant award has been assigned its number as 728-31/ACS dated 16-3-1991. The area acquired by the Land Acquisition Collector, Swabi was of two kinds i.e. ' Chahi' and Maira' land.

The price of the 'Chahi' land was determined by the Collector as Rs.37,352 per Kanal while that of 'Maira' land was determined as Rs.13,553 per Kanal based on one yearly average.

3. 15% compulsory acquisition charges were also given to the landowners. The land measuring 5 Kanals belonging to the appellant was included in the acquired land.

4. Dissatisfied with the compensation amount, the appellant filed reference before the Senior Civil Judge/Land Acquisition Judge, Swabi. The reference was resisted by the respondents by filing reply thereto and the rival pleadings generated the following issues:-- (1)Whether petitioner has got a cause of action?

(2)Whether petitioner is estopped to sue by his conduct?

(3)Whether the petition is within time?

(4)Whether the petition is liable to be dismissed as petitioner has received the compensation without objection?

(5)Whether price of the acquired suit-land has not been assessed in accordance with the law?

(6)What is the price of the suit-land?

(7)Whether petitioner is entitled to the enhancement of compensation and recovery of the same?

(8)Relief.

5. Both the parties adduced their respective evidence. However the trial of the matter ended into dismissal of the reference petition.

6. The learned counsel appearing on behalf of the appellant has argued that the price of the land determined by the Collector and upheld by the learned Senior Civil Judge was much less than its actual price. He contended that the acquired land could be used for the purpose of construction and it was bearing potential value. The land in the nearby vicinity was sold for higher prices.

7. On the other hand the learned counsel for the respondents has argued in defence of the impugned judgment and urged that the suit-land is 'Maira' non-culturable and was located away from the 'Abadi' of the village. He contended that the price determined was on the basis of one yearly average which is a legal mode of determining the price and there is no evidence on the record to speak about the potential value of the suit-land.

8. We have heard the arguments of the learned counsel for the parties and have examined the record. The reference was admittedly filed beyond period of limitation but no arguments were addressed on this point. We have however, noted that the appellant has taken the plea that since he was out of country, therefore, he could not file the reference in time. In cross-examination the appellant admitted that in his passport no entry stamp at the Peshawar Airport is available. It is not believable that a person coming from abroad would not get an entry stamp at the Airport of his entry in the country. Thus his plea was not established and it was rightly held by the learned lower Court that the reference was filed beyond period of limitation. Even on merits there is no evidence to show that the suit-land had any potential value although the appellant has stated that other lands were sold in the vicinity for a higher price but no party to the said transaction was produced as a witness in support of his claim. The mere production of copy of mutation is entirely insufficient to believe that the price entered in the mutation was true and correct. The landowner is burdened with the duty to produce any of the party to the transaction on which the landowner relies. On this feature of the case we find support from the judgment of this Court reported as PLD 1976 Peshawar

50. On the evaluation of the evidence we feel that the judgment of the trial Court is well --founded on merits as well as on the question of limitation. Consequently this appeal being destitute of merit is dismissed, with no order as to costs.