Page 1 of 16

ARGUMENTS
Introductory Remarks:
1. Bagh/Chahi/Abadi types of land are grouped as one type of land in the impugned award.
2. Reference to page No.
Page 2 of 16
 Page 3 of 16

during Arguments, is to page numbers of CA 145/2016, unless stated otherwise.

ISSUE: Acquired Land Wrongly Classified & Under-Valued

1st Part of the issue : Wrong Classification of Land

Reference is made to Aks Shajra Kishtwar, EX-OW 2/3 on page 47: It is shown that:
i) Suit Khasra Nos. 24, 25, 26, 27, 32, 33, 34, 35 and 36 form a compact block.
ii) One District Council Road located in khasra No. 31, passes through the entire length of the
compact block and provides extensive contact with the suit khasras.
iii) Second District Council Road is located in khasra No. 23, on the border between village Ghara
and village Khalo. It passes all along the entire length of northern boundary of suit khasra Nos.
24 and 25 and joins the other District Council Road in khasra No.31.

Patwari Halqa OW-2, in his statement before the Learned Referee Judge on page 36 & 37, confirmed the
existence of two roads in and on the border of suit khasras. He also confirmed existence of Abadi in suit
khasra No.25 and other khasras in the vicinity including a mosque. Page 36 & 37 are referred and relevant
parts of the statement of Patwari Halqa are quoted for the sake of convenience:-
(Read highlighted text on page 36 & 37).

Reference is made to Khasra Girdawari, EX-OW 2/2, page 41:

Entries in Khasra Girdawari on page 41confirm that:
i) Khasra No. 23 is a District Council road;
ii) suit khasra Nos. 25 & 26 have Bagh Maiwadar and irrigated crops grown in these khasras, and;
iii) Khasra No. 25 has well and abadi existing in it.
Entries in Khasra Girdawari on page 42 confirm that:
i) khasra No. 31/1 is the second District Council Road, and;
ii) Suit Khasra No. 27 has Bagh Maiwadar and irrigated crops grown in.

Reference is made to Location Map of Suit Lands, EX-OW 6/1, page 49: The compact block of suit lands is
identified in the map as Raqba Mutadaavia.
Noteworthy in the map is that:
i) Raqba Mutadaavia or Comact Block of Suit Lands is located in the middle of three closely located
population centers of Ghazi, Khalo and Ghazi Hamlet. These localities form greater Ghazi town
which is head quarters of the Ghazi Tehsil of District Haripur.
 Page 4 of 16

ii) There is a network of roads connecting the block of suit khasras with Ghazi, Khalo, Ghazi Hamlet
and other surrounding localities. One road from Ghazi town crosses Ghazi Hamlet Road
coming from village Khalo and passing through the entire block of suit lands, goes on to other
villages. This is the same road identified as District Council Road in Khasra Girdawari, EX-OW
2/2 on page 41, located in Khasra No. 31/1. Three roads from Village Khalo off-take from Main
Ghazi-- Tarbela Road and join the link road identified in Khasra Girdawari located in Khasra No.
23. Residential and commercial buildings exist along these roads.

Appellants’ contention that their entire acquired land was Bagh / Chahi / Abadi on spot and in potentiality,
gets support from the case reported in PLD 1982 SC 100, Banaras Khan etc vs. Chairman WAPDA etc.
Relevant part of the judgment is quoted for the sake of convenience:
(Read highlighted text from copy of the cited case;
The suit khasras had a well not only nearby, it existed inside the suit khasra No. 25. Suit Khasra Nos. 25,
26, 27 and Appellants’ un-acquired adjacent khasra No. 28 were irrigated from this well; the fact borne by
Khasra Girdawari on pages 41and 42.
In view of the mentioned facts, all the acquired suit khasras could not but be classified as
Bagh/Chahi/Abadi type of land.

The principles laid down in the cited case, were consistently followed in PLD 1993 Supreme Court 80,
Sadiq Niaz Rizvi vs. Collector District Lasbella and another; 1997 SCMR 1692, Province of Punjab
through Collector Bahawalpur vs. Col. Abdul Majeed and others; 1999 SCMR 1647, Murad Khan through
his widow and others vs. Land Acquisition Collector Peshawar and another; and 2000 SCMR 870,
Province of Punjab through Collector Attock vs. Engr. Jamil Ahmad Malik and others.
In all these cases assessment of the classification and potentialities of the acquired land is made on the
principles:
i) That an entry in the Revenue Record as to the nature of the land may not be conclusive, for example,
land may be shown in Girdawari as Maira, but because of the existence of a well near the land, make it
capable of becoming Chahi land;
ii) that while determining the potentials of the land, the use of which the land is capable of being put,
ought to be considered;
iii) that the market value of the land is to be taken as existing on the date of publication of the notification
of section 4 (1) of the Act but for determining the same, the price on which similar land situated in the
vicinity was sold during the preceding 12 months and not 6 – 7 years may be considered including other
factors like potential value etc.

Location of the compact block of suit khasras on the fringe of Ghazi Town, accessibility by roads,
availability of water and power, existence of a nearby mosque, well and abadi in and around suit khasra
No.25, Bagh Maiwadar, vegetables and other irrigated crops grown in suit khasra Nos.25, 26 and 27,
qualify all the suit khasras to be classified as Bagh/Chahi/Abadi type of land on spot and in potentiality.

So, on the basis of the evidence on record and cited judgments of august Supreme Court of Pakistan, it is
proved beyond any doubt that the entire compact block of suit lands was Bagh/Chahi/Abadi type of land
on spot and in potentiality.
 Page 5 of 16

NOTE: Respondent had objected on admissibility of EX-OW6/1, Location Map of Suit Lands, as
evidence during my Statement before Referee Judge. If this objection is raised now, the same map is
exhibited by Muhammad Afsar Patwari of Collector as one of the attachments in EX-OW 4/5, on page
158. However, the block of suit lands though shown in that map is not identified as Raqba Mutadaavia.

2nd Part of the Issue : UNDER VALUATION OF LAND

Reference is made to impugned award, EX-OW 4/R-1, page 107. Collector observed which I Quote:
(Read highlighted text on page 107)
In the light of the observation of collector, decision to base the rates in the impugned award on the rates of
award No. 2 of village Khalo, would be justified only if rates in award No. 2 were just and fair.
Reference is made to award No.2, EX-OW4/6, page 121 and 122 for ascertaining fairness or otherwise of
awarded rates. Read highlighted text on page 121 & 122;

1. Collector did not provide any rationale of the formulas on page 122, nor provided any substations of
the rate of Maira land. In this situation formulas and rate of Maira land used in evaluation of lands in
award No. 2 of Village Khalo are arbitrary and not an equitable precedent to emulate for impugned
award.
2. Collector made another observation on page 105, which I Quote: (Read highlighted text on 105)
This observation of collector regarding one yearly mutations prior to issuance of notification U/S 4,
LAA, very low and unreasonable and the observation on page 107, regarding similarities of soil, land-
scape and contiguity of the compact block of suit lands, being just across the road from village Khalo,
lead to the only rational option of Parta based valuation of land in the impugned award, is on the basis
of rate of Rakkar type land in EX OW3/15 (one year average for the period 1995-96), in judgment of
Objection Petition No. 40/4 of 2 001, against award No. 18 of Village Khalo, page 249 to 256,
relevant page being 253. Parta of Village Ghara is on page 61.
3. Rakkar rate in EX OW3/15 is Rs.85, 191.60 /Kanal and Parta ratio of Rakkar land to Chahi land of
Village Ghara is 1 : 8. Hence value of Bagh/Chahi land is, 85,191.60 × 8 = 6, 81,532.80 / Kanal which
rate has to be further enhanced by 50 % considering commercial potential of suit lands; refer page
254.
4. Value of Bagh/Chahi land with commercial potential is = 6, 81,532.80 ×1.50 = Rs.10,22,292.20/
kanal in the impugned award which Hon’ble Court may graciously be pleased to allow.
__________________________________________________________________________________

Following Points may be useful for rebuttal

5. Precedent for use of Parta for evaluation of land-------- Award No. 8 of Ghazi & Bharwasa, Refer
Page No. 50 to 54, relevant page No.52. Judgment of Supreme Court on page 72 to 62, relevant page
is 68.

6. Parta method of evaluation of land is based on the fact that if different types of land have same
potentialities except productivity, then higher rate of land revenue or Parta is levied on highly
productive lands which have higher market rate and lesser rate of land revenue or Parta is levied on
less productive lands which have lesser market rate. Thus market rates of lands in an award are
proportionate to their Partas provided their potentialities other than productivity are same.
 Page 6 of 16

7. The relationship of market rates of lands and their partas in an award provides the only rational
method to determine the market rate of a land which has no mutation in one year period prior to
notification of section 4, LAA, or the mutations are too unreasonably high or low to be accepted as
genuine value of the land, as in the instant case.

8. In actual application of this relationship, market rate of any type of land , say, Maira type of land in an
award is determined in accordance with Sec. 23 LAA and the market rate of any other type of land in
the same award is proportionate to market rate of Maira type in the ratio of their Partas. Parta is
obtained from revenue record of the affected village.

As a precedent of Parta based evaluation of land, Reference is made to Award No. 8 / G-B / Acq, on page
50, issued by Land Acquisition Collector/Deputy Commissioner Abbottabad, acquiring land for Ministry of
Defence, in adjacent village Ghazi. It is noted on page 52 in Para titled ASSESSMENT OF LAND, Village
Ghazi, that: (Read highlighted text on page 52)

After assessment of market rate of Maira type of land in the referred award, collector determined the rate
of Chahi/Aabi type of land relative to the rate of Maira land proportionate to their Partas because there
was no transaction of Abi/Chahi land in one year prior to notification of sec. 4, LAA. And Parta based
evaluation of land was the only rational choice. Page 60 is referred for Parta of village Ghazi.
The litigation following the said award attained finality by the order of august Supreme Court of Pakistan
dated 23.6.1998, upholding the enhancement of Maira land rate by Hon’ble Peshawar High Court,
Abbottabad Bench to Rs. 62,402.80 and rate of Chahi land to 5 x Maira rate amounting to Rs. 3, 12,014.00
on the basis of Parta of Village Ghazi, vide the Judgment of Civil Petition No. 415/96 and CAs. No. 1001
to 1010/1996, dated 23.6.1998, referred on page 62.
_____________________________________________________________________________________

Issue: Fruit Trees Wrongly Counted, Wrongly Classified and Under-Valued

1st Part of the Issue: Wrong Counting & Wrong Classification of

Fruit Trees

Collector asked Development Officer, Fruit & Vegetable Board, Ghazi, for the assessment of the orchards in
the project area; EX-OW 4/1, page 98 is referred.
In response, Development Officer, Fruit & Vegetable Board, Ghazi, submitted two Reports; one report EX–
OW 3/1, on page 92 is about counting of fruit trees. The counting was done by field staff of Fruit Board in
presence of representative of revenue department of collector. The second report, EX-OW 3/2, on page 95,
relates to yearly income from various types of fruit trees. ec
Without refuting the report EX-OW 3/1, collector prepared and acted upon another report of counting of
fruit trees, EX-OW 4/R-11, on page 153. This report was prepared by collector without knowledge and
involvement of Appellants and kept it confidential till announcement of the impugned award by not
disclosing counting & classification of fruit trees in Notice under Sec. 9 & 10 to Appellants; the Notice is
referred on page 155. All these actions of collector are unjustified and mala-fide. In addition to these actions
collector took other actins which confirm the report EX-OW 4/R-11 as a fictitious document: Those actions
 Page 7 of 16

are:
1. Notice under Sec. 9 & 10, was issued to Appellants on 22 November 1995 for submission of
objections whereas collector had already heard and decided the objections falling in the purview of
Sec. 9 and 10 on 31 October 1995; 22 days before issuing the Notice under Section 9 & 10 to
Appellants; page 100, Para 3 of the impugned award, is referred.
2. Providing no information about fruit trees as given in report EX-OW 4/R-11 in Notice under sec. 9 &
10 and issuing the Notice after the date set for deciding the objections of affectees, cannot be un-
intential. In the first place, it may please be noted that reserved space for details of trees in the Notice
Form, has been left empty whereas space for landed property details is duly filled in. It is not possible
to leave reserved space for trees empty unless left intentionally; secondly, there is no resemblance
between the dates of 31 October and 22 November that one would get mixed up, especially when the
date of 31 October must have been written repeatedly several times when filling the Notice Form for
other affectees, and thirdly, Appellants being unaware of preparation of report EX-OW 4/R-11 and
expiry of date set for receiving and deciding objections under sec. 9 & 10, requested collector for
setting a new date for receiving and deciding objections after counting of their fruit trees; EX- OW
4/5, page 157, point 5, is referred; (Better copy on page160 may be referred for convenience)
This request must have reminded collector of providing details of counting and classification of fruit
trees to Appellants given in report EX-OW 4/R-11 for enabling Appellants to submit objections under
sec. 9 & 10. Collector did not respond to this request for which unsuspecting Appellants waited in vain
for response from collector till impugned award was announced. Appellants were thus denied of their
valuable legal right to have objected and requested for recounting of their fruit trees. Collector acquired
orchard of Appellants irregularly without fulfilling the requirements of sec. 9 & 10, LAA.
3. Reference is made to impugned award, EX-OW4/R-1, page 99. On page 111 of the impugned award,
Collector took following actions pursuant to report, EX-OW4/R-11.
a) Classified 145 orange trees, 73 mango trees 15 guava trees of ages 5 to 10 years as “nursery” and
112 apple trees and 3 almond trees, both, of age 8 years, as “ornamental”.
b) Reduced the number of fruit trees from 892 in EX-OW 3/1 to 781 in the impugned award, by non
counting 111 fruit trees without refuting the report of counting of fruit trees EX-OW 3/1, and;
c) Acquired the so called nursery, ornamental and non counted fruit trees numbering 459, without
paying any compensation, not even as fuel wood, by arbitrary classification, biased counting with
impunity, going to the extreme limit of violation of Article 24 of constitution of Pakistan.
4. Inconsistencies, discrepancies, fallacious assessment and unjustified decisions by collector in report
EX-OW4/R-11 were noted by Hon’ble Peshawar High Court, Abbottabad Bench in impugned
judgment of RFA No. 30/2000, dated 24.5.2005; page 166 is referred. Relevant part of the observation
of the Hon’ble Abbottabad Bench of Peshawar High Court is quoted for ease of reference:
(Read highlighted text on page 166;
All these actions of collector, in pursuance of report EX-OW4/R-11 confirm the report to be a biased and
fictitious document. In fact collector is not competent to overrule the opinion of Fruit Board expert in
matters like classification and yearly income from different kinds of fruit trees and that is why collector
asked Fruit Board, Ghazi, for assistance in assessment of compensation of fruit trees under acquisition; EX-
OW 4/1, page 98 is referred.
Hon’ble Peshawar High Court, Abbottabad Bench, giving partial relief in impugned judgment of RFA No.
30/2000 date 24.5 2005 allowed compensation of the fruit trees classified by collector as “nursery”.
 Page 8 of 16

However, the yearly income from fruit trees allowed by Hon’ble Court was not according to EX-OW 3/2,
given on page 95, nor capitalized the yearly income for 20 years in accordance with WAPDA Guidelines
in Resettlement Action Plan, EX-OW 1/R-1, on page 35. It is submitted that the compensation of orchards
has already been assessed and paid according to EX-OW3/2 and capitalized for 20 years, in award No. 2
of adjacent village Khalo, acquiring orchards for the same project. Field Book of Counting and Estimate
of Fruit Trees in award No. 2, page 187, is referred.
Assessment of compensation of Orchards on yearly income as in EX-OW 3/2, capitalized for 20 years
has been up held by Hon’ble Peshawar High Court, Abbottabad Bench in common judgment of RFA No.
65 of 2004 in three identical RFA Nos. 65 to 67/2004, filed by WAPDA, page 182 is referred. WAPDA
did not file appeal against the common judgment of RFA No. 65 of 2004 in august Supreme Court of
Pakistan. Thus capitalizing period of 20 years and yearly income from fruit trees on the basis of EX-
OW3/2 stands accepted by WAPDA and this issue has reached finality.
Hon’ble Peshawar High Court, Abbottabad Bench, gave no verdict in the impugned judgment of RFA No.
30/2000 in respect of classification and compensation of 112 Apple trees and 3 Almond trees of age 8 years ,
classified by collector as “Ornamental”. In this respect it is submitted that:
a. Hon’ble Peshawar High Court, Abbottabad Bench allowed compensation of Apple trees, in the
clubbed case, RFA No. 136 / 2003 dated 24.5.2005. Page 170 is referred and quoted for the sake of
convenience. (Read highlighted text on page 170)
However, the yearly income from fruit trees allowed by Hon’ble Court was not according to EX-OW
3/2 (page 95), nor capitalized the yearly income for 20 years in accordance with WAPDA
Guidelines in Resettlement Action Plan, EX-OW 1/R-1(page 35).
No verdict by Hon’ble Peshawar High Court, Abbottabad Bench on classification and compensation
of Appellant’s Apple trees appears to be an oversight.
b. None other than collector, granted compensation of apple trees in award No. 3 of adjacent Village
Ghazi acquiring orchards for the same project though compensation granted was not according to
EX-OW 3/2, nor was it capitalized for 20 years in accordance with EX-OW 1/R-1; pages 146 and
147 are referred.
c. Fruit Board official, Shafi-ur-Rehman, OW-3, stated in his statement before the learned Referee
Judge, that, “apple trees in question were of ‘Ana’ kind which bears fruit in this part of the country”;
page 90 is referred.
d. Compensation of Almond trees was paid in award No. 2 of adjacent village Khalo, acquiring orchards
for the same project. Denying compensation of Almond trees to Appellants will be discriminatory.
Field Book of Counting and Estimate of Fruit Trees in award No. 2 of village Khalo, page 187 is
referred.
Hon’ble Peshawar High Court, Abbottabad Bench, also gave no verdict in the impugned judgment of RFA
No. 30/2000 in respect of reduction in number of fruit trees.
In this respect it is submitted that the number of fruit trees was reduced by collector on the basis of Report
EX OW 4/R-11 which has been proved to be a biased and fictitious document. Against this Report is the
un-refuted report of counting of fruit trees EX OW- 3/1, prepared by Fruit Board, Ghazi, on orders of
collector, counting the fruit trees in presence of collector’s staff.
So, the report, EX-OW 4/R-11 is liable to be set aside, along with classification of 145 Orange trees, 15
Guava trees and 73 Mango trees as “nursery” and 112 apple trees and 3 almond trees as “ornamental” and
counting of fruit trees is allowed as given in Report EX OW 3/1.
 Page 9 of 16

2nd part of the Issue; Under-valuation of Fruit Trees

 Reference is made to EX-OW 1/R-1, page 35 regarding WAPDA Policy Guidelines in

Resettlement Action Plan for valuation of orchards.
It is noted in Resettlement Action Plan, Article 8.4, Para 2, that, I quote: “For orchards, the
valuation will be based on the net annual income from the orchard, capitalized for 20 years”
unquote.
Collector asked Fruit & Vegetable Development Officer, Ghazi for assessment of affected fruit
orchards; EX-OW 4/1, on page 98 is referred. Fruit & Vegetable Development Officer submitted
estimate of yearly income from various types of fruit trees vide letter No. 402/FVDO /FVDB
/Ghazi, dated 14 September 1995; EX-OW3/2, page 95 is referred.
 Reference is made to impugned award, page 108, Para 15. It is noted in this Para and I
quote, (Read highlighted text on page 108;

Collector reiterated in Para 23, in the impugned award, on page 110 that, “ The detail of
compensation of fruit bearing trees runs as follows with a loss of 20 years.” After having noted in
the impugned award twice that compensation was assessed through Fruit & Vegetable Board with
loss of earning for a period of 20 years, collector adopted estimate of highly reduced annual income
from fruit trees than estimate of yearly income submitted by Fruit Board Ghazi in EX-OW 3/2 and,
also reduced the period for capitalizing annual income from 20 years by deducting the age of fruit
trees at the time of award. By reducing the yearly income from fruit trees and reducing the
capitalizing period of compensation, collector contradicted his twice repeated statement in Para 15
and 23 in the impugned award and also violated WAPDA Policy Guide lines in EX OW 1/R-1;
compensation assessed by Collector is referred on page 111. Collector did this despite the
compensation of orchards had been assessed and paid in accordance with EX-OW 3/2 and
capitalized for 20 years, in award No. 2, acquiring orchards for the same project. Field Book of
Counting and Estimate of Fruit Trees in award No. 2 of village Khalo, page 187 is referred.
After payment of annual income from fruit trees capitalized for 20 years in award No. 2, WAPDA
filed three Objection Petitions against parts of Awards No.2, 4 and 6 for capitalizing yearly income
from orchard for 20 years and reducing the capitalizing period from 20 years by deducting the age of
fruit trees from 20 years. On dismissal of Objection Petitions, three identical RFA Nos. 65 to
67/2004 were filed by WAPDA, which were also dismissed by Hon’ble Peshawar High Court,
Abbottabad Bench, vide the judgment dated 28.3.2007, being without merit and upheld the period
for capitalizing the annual income as 20 years.
Relevant parts of the judgment are referred on page 185 and quoted for convenience: (Read the
highlighted text on page 185 in two places.)
WAPDA did not dispute the market value of net produce of fruit trees as assessed by the expert, has
been included by the acquisition collector in the impugned award (award No. 2). WAPDA did not
file appeal against the common judgment of RFA No. 65 of 2004 in august Supreme Court of
Pakistan. Thus capitalizing period of 20 years and net yearly income from fruit trees on the basis of
estimate of Fruit Board expert (EX-OW3/2) stands accepted by WAPDA and this matter has reached
finality.
Appellant’s contention for capitalizing the yearly income of fruit trees for 20 years, gets further
 Page 10 of 16

support from judgment of Hon’ble Peshawar High Court, Abbottabad Bench in RFA No. 29 of 1999;
Malik Asghar Ali, v. Land Acquisition Collector Ghazi Barotha Hydropower Project, relevant parts
are quoted:-(Read the highlighted text from copy of the RFA)
Allowing RFA No. 29 of 1999, Hon’ble Abbott Abad Bench of Peshawar High Court held, in
paragraph 6, that, (Read the highlighted text from copy of RFA 29/1999)
Constitution of Pakistan, Article 25, guarantees that all the citizens of Pakistan are equal before law.
Therefore all the citizens of Pakistan are to be treated equally without discrimination. Estimate of
annual income from fruit trees EX-OW 3/2, capitalized for 20 years was allowed and paid in award
No. 2 of village Khalo and stands accepted by WAPDA by not filing appeal against common
judgment of RFA No. 65 of 2004 as discussed earlier. While in the instant case, Appellants were
discriminated against by deducting age of fruit trees at the time of impugned award from the
capitalizing period of 20 years and fixing much less rates of fruit bearing trees in the impugned
award than the rates awarded in award No.2.
So considering the principle of equal treatment without discrimination, Appellants’ are entitled to
valuation of their fruit trees at the rate as given in EX-OW 3/2, capitalized for 20 years.

NOTES:Objection on Ex-OW3/1& EX-OW3/2 by Respondent’s lawyer during statements of Shafi

ur Rehman and Niaz Ahmad regarding admissibility of these Exhibits as evidence. Please refer to
statements of both O.Ws.
Following Comments are offered for consideration to respond the objection o, n these Exhibits:-
i) Muhammad Afsar Patwari, OW- 4, stated on page 96, “In response to this letter (EX-OW4/1)
Niaz Ahmad, Fruit &Vegetable Development Officer submitted his report about the approximate
income of fruit bearing trees EX-OW3/1 (three sheets already exhibited). I produce the original for
the inspection of the Court.” After submission of original of EX-OW3/1 by respondent’s
representative, objection no longer remains valid.
ii) Regarding objection on EX-Ow3/2, Niaz Ahmad, OW-5 stated before Learned Referee Judge
that, “In response to letter dated 10.9.95 of respondent No. 1, copy of which is EX-OW4/1, I
submitted my report dated 14.9.95, the attested copy of which is EX.O.W.3/2 on the file”.Niaz
Ahmad, further stated that, “The original of O-W. 3/2 signed by me and this attested copy is also
signed and attested by me. The compensation of the fruit trees of the objector was also assessed by
me and my staff one of which was Shafiur Rehman.”

Next Issue: Damage Sustained by Appellants, by Reason of

Acquisition of Appellants Tube well, Injuriously Affecting their Adjacent Un-
acquired Irrigated Land and the Orchard, was not Considered.
 Reference is made to EX-OW 2/2, khasra Girdawari, page 42. (Read following text)
Suit Khasra No. 27 measured 4 kanal 5 marla from which only 4 marlas were acquired leaving 4
kanal 1 marla un-acquire. Adjacent un-acquired khasra No. 28 of Appellants measured 2 kanal 14
marlas. Un-acquired part of khasra No. 27 and khasra No. 28, collectively measured 6 kanal 15
marlas which was Bagh/Chahi/Abadi type of land, having orchard and other irrigated crops grown
in. The source of irrigation of both the khasras was the tube well located in suit khasra No. 25 which
was acquired along with khasra Nos. 25 and 26. As a consequence of acquisition of the tube well the
adjacent, un-acquired land, measuring 6 kanal 15 marlas, got downgraded from highly productive
 Page 11 of 16

Bagh/Chahi/Aabadi type land to non irrigated and less productive Maira type land. In addition, the
orchard consisting of 232 orange plants in these khasras were destroyed due to non availability of
irrigation water; Sheet No. 3, EX-OW3/1. Page 94 is referred This
eventuality was foreseen and attention of collector was drawn to the injurious effect of acquisition of
well on the remaining orchard outside of land acquisition limit; response to Notice under Sec. 9 and
10 LAA,EX-OW 4/5, point 9, page 161 is referred. Collector did not consider this damage in
determining the compensation for the lands acquired and Learned Referee Judge dismissed the issue
without giving any reason.
The destruction of Orchard due to acquisition of source of irrigation also gets support from
statement of OW-3, Shafi-ur-Rehman, an official of Fruit Bord, before the learned Referee Judge.
OW-3 visited the Orchard of Appellants in connection with assessment of Orchards on order of
collector, and counted the fruit trees in presence of representative of revenue department of
collector.
 Reference is made to statement of OW-3 on page 90. OW-3 stated and I quote for
convenience of Hon’ble Court: (Read highlighted text on page 90)
Reference is made to Section 23(1), LAA which I quote for convenience of the Hon’ble Court:
“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………………..Skip, being irrelevant.
secondly ……….. Skip being irrelevant.
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, movable
or immovable, in any other manner, or his earnings”
Justice demands that compensation is paid for the degradation of Bagh/Chahi/Abadi land measuring
6 kanal 15 marlas to Maira land at the rate of difference between the enhanced rate of
Bagh/Chahi/Abadi land and the rate of Maira type land in the impugned award, and compensation of
232 Orange plants at the rate of yearly income as given in EX-OW 3/2; capitalized for 20 years.
So, in accordance with Sec. 23 (1) of LAA, Appellants are entitled to compensation for
Bagh/Chahi/Abadi type land, measuring 6 kanal 15 marla, at the rate of difference between the
enhanced rate of Bagh/Chahi/Abadi land and the rate of Maira type land and the compensation for
loss of 232 orange plants, at the rate of yearly income as given in E X- OW 3/2, capitalized for 20
years.

Next Issue: Built- Up Property was Under- Valued

(Read following text)
 Reference is made to EX OW 1/R-1, page 34, Article 8.3; Valuation of Buildings, for
WAPDA Policy Guidelines.
(Read highlighted text of the EXHIBIT in Para 2 to Para 6;
and after that read following text.
Built-up Property consisted of a Farm House and Farm Buildings & Other Structures. The
 Page 12 of 16

methodology for evaluation of both types of buildings is different, therefore, each one is discussed
separately.
 First I take up Under-Valuation of Farm House
Impugned award was announced on April 21, 1996 and the covered area rates given in RAP for
evaluation of houses, being applicable for 1995, had become inapplicable and appropriate revision
of these covered area rates was due in accordance with WAPDA Policy Guidelines in RAP. Without
revising these rates, collector evaluated the compensation of Appellants house on the inapplicable
covered area rates, EX-OW1/1, page 24, 26 and 30 are referred. Also, the compensation was not
paid immediately after announcement of the impugned award and was paid to Appellants on June
22, 1996; EX OW 4/R-10, page 152, is referred.
In these circumstances the replacement housing could be constructed in the period July 1996 to June
1997 and therefore, the covered area rates should have been enhanced equal to the inflation rate
during the Fiscal Year 1997.
Inflation rate for FY1997 could be calculated by relevant Inflation Indices obtained from Pakistan
Bureau of Statistics (former Federal Bureau of Statistics), Gov’t. of Pakistan.
Relevant inflation Index in case of Built-up property is Wholesale Price Index, abbreviated as
(WPI), because it covers Building Materials as a major commodity group.
Index Numbers of Wholesale Prices in Fiscal Year 1997 and Fiscal Year 1996 are 181.96 and
161.10, respectively; Page 363 Pakistan Statistical Year Book 2004, Gov’t. of Pakistan, Statistic
Division Federal Bureau of Statistics, is referred.
Formula for calculating Inflation rate in Fiscal year 1997 is WPI Fiscal year 1997(−) WPI Fiscal
year 1996 (÷) WPI Fiscal year 1996 (x) 100, expressed as percentage. The Inflation Rate in Fiscal
Year 1997 is (181.96–161.10) / 161.10 x 100 = 12.9%.
Covered area rate Rs. 3,200 per sq meter for Type B House of Appellants, identified in EX-OW1/1,
Srl.No.1 on page 30, should have been enhanced by 12.9% which is Rs. 3, 200 + Rs. 4 12.80 = Rs.
3,612.80 /sq m.
So, Appellants are entitled to compensation of their House, S.No.1 on page 30, on the covered area
rate revised to Rs. 3, 612.80/sq m and not at the rate Rs. 3, 200/sq m.

2. Now taking up 2nd part of the Issue:

Under-Valuation of Farm Buildings & Other Structures:
Reference is made to EX-OW 1/1-R1, Para 6 on page 34, it is noted that: (Read highlighted text;
after that read following text)
The estimate of compensation of Farm Buildings & Other Structures on replacement cost basis has to
be prepared on the market rates of building materials and labour of the year 1996, in accordance with
the methodology given in RAP.Instead, Collector estimated the compensation of thse Structures on
the rates of WAPDA Schedule of Rates, 1990 and to account for the rise in prices of building
materials and labour in 6 years period, the estimate so prepared was arbitrarily raised by 20 %;
statement of Zahid Hussain, OW-1, on page 22 is referred.
Collector changed the methodology of estimating the compensation of Farm Buildings & Other
Structures from the methodology given in Resettlement Action Plan for reasons not given in award
but by doing so, collector introduced an arbitrariness in updating the estimate of compensation
prepared on 6 years old WAPDA Schedule of rates.
 Page 13 of 16

The 20 % rise in prices in six years assumes uniform annual inflation rate of about 3% which is
inconsistent with observation of collector in the impugned award on page 107, Para 12: (Read the
highlighted text and after that read following text)
In the circumstances, fair approach was to adjust the compensation estimated on WAPDA Schedule
of Rates 1990, on the basis of inflation during the period fiscal year 1991 to fiscal year 1996.
Index Numbers of Wholesale Prices in Fiscal year 1996 and Fiscal Year 1991 are 176.90 and
100.00, respectively; Page 363 of Pakistan Statistical Year Book 2004, Government of Pakistan,
Statistical Division; Federal Bureau of Statistics is referred.
Inflation in the period FY1991 to FY 1996 = (WPI 1996–WPI 1991) / WPI 1991x 100
= (176.90–100) /100 x 100= 76.9%.
The estimate of compensation of Farm Buildings & Other Structures of Appellants should have
been enhanced by 76.9%.
So, Appellants are entitled to the compensation of their Built-up Property, estimated on WAPDA
Schedule of Rates 1990, EX OW1/1, Items No. 1 to 21, on pages 30 to 32, enhanced by 76.9%,
except Items No.1, 14 and 21, being market rates, and not at 20%.

Inflation Concepts
Inflation is increase in the general level of prices over a period of time and,
Inflation Rate is percentage increase in the general level of prices over a year.
If P0 is the current average price level and P1 is the average price level a year ago, the
Inflation Rate during the year is equal to (P0 –P1 /P1) x 100, expressed as percentage.
Inflation reduces purchase power of currency and Afte a Year the purchase power of a unit of
currency is reduced to 1/ (1 +Inflation Rate).
Price Index: Price inflation in a year, measured relative to a chosen base year, is called Price Index for
that year.
Most common Inflation Indices are Consumer Price Index (CPI) and Wholesale Price Index (WPI).

Next Issue: Compulsory Acquisition Charges

1. Compulsory Acquisition Charges (CACs) are covered by Sec. 23 (2) LAA. It is pertinent to quote
this clause: I quote, “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.”
Collector acquired the suit khasra Nos. for construction of Ghazi-Barotha Hydropower Project for
WAPDA and awarded 15% CACs whereas there are pro and contra judgments of Hon,ble High Courts
and august Supreme Court of Pakistan on CACs, at 15 % and 25% in cases involving land acquired for
WAPDA.
The judgments in favour of 15% CACs hold the view that the determining factor entitling the land
owners 25% or 15% CACs, is the “public purpose”, even if the property has been acquired for a
Company.
The judgments against this point of view hold that WAPDA is an Authority, a body corporate and
has separate entity from Government, therefore, for the purpose of Sec.23 (2) read with Section 3
(e), LAA, WAPDA falls within the definition of Company and liable to pay CACs at 25%.
 Page 14 of 16

2. Section 40(1), LAA entitles Companies to acquire Land under LAA. All the three purposes for
which a Company can acquire land under LAA are either for public purpose or for benefit of people
as a community and not for benefit of a specific individual or a group of persons. Company cannot
request for compulsory acquisition of land through the machinery of law if it is meant for its private
holding, vesting and use.
This view gets support from the judgments reported in 2000 YLR 1711, Gulshan Hussain & other
vs. Commissioner (Revenue) Islamabad & others and 2000 MLD 322, Nazir Ahmad & others vs.
Commissioner Lahore Division, & others. Hon’ble Lahore High Court giving various precedents of
August Supreme Court of Pakistan, held in case reported in 2000 MLD 322 that land of a citizen of
Pakistan cannot be acquired under the provisions of Land Acquisition Act without public purpose.
NOTES:
1. Sec. 40 (1) (b), LAA, KPk, “that such acquisition is needed in the public interest for the
purposes of a Company” was amended by Khyber Pakhtunkhwa Ord. No. IX of 1952. It appears to be
in conflict with Article 24 of Constitution of Pakistan which was promulgated in 1973 and it is
possible this sub section remained un-amended by omission.
2. In my opinion this Ss, in its present form does not affect our argument because
the Company in the instant case is WAPDA which acquires land for public purpose under Sec. 13
(3)WAPDA Act which is same as in Sec.40(1) (aa) of LAA, KPk and still remains liable to 25% CACs.
Do we have to modify our Argument that land acquisition under LAA is permitted only for public
purpose? Pl.check.

It is also the spirit of principle of administration of justice that a person cannot be deprived of his
property by compulsory acquisition other than for public purpose. Any compulsory acquisition of
land other than for public purpose is ultra vires of Article 24 of the Constitution of Pakistan.
It is clear from this discussion that both the land acquiring entities in Sec. 23 (2), LAA, can acquire
land only for public purpose. If public purpose is the determining factor for the rate of CACs, even
if the acquisition was for a Company, then in all cases of land acquisition, CACs would be awarded
at the rate of 15 % because compulsory land acquisition is not permitted under LAA for any purpose
other than for public purpose. There would be no land acquisition under Land Acquisition Act which
would entitle land owners 25% compulsory acquisition charges. This scenario would render Sec. 23
(2) redundant, defeating the very purpose for which Sec. 23 (2), LAA, was amended, enhancing
CACs in case of acquisitions for a Company. This cannot be attributed to the legislature; it simply
concludes that the assumption of public purpose as the determining factor for the CACs is not
correct.

3. In order to establish status of WAPDA as a Company or a Government Department, reference is

made to Sec.3 WAPDA Act:
(Read Sec.3 WAPDA Act and then read following text)
From the provisions of Sec.3, WAPDA Act, it is clear that WAPDA has separate legal entity from
Government. Hence WAPDA is not a government department and falls within the definition of a
Company, for the purpose of Sec.23 (2) read with Section 3 (e), LAA.
 Reference is made to Sec. 25, WAPDA Act which I quote:
(Read Sec.25 WAPDA Act and then read following text)
 Page 15 of 16

Earning reasonable return on investment means WAPDA power projects are like any other private
power project, selling power to Distribution Companies, recovering all costs including CACs and
earning return or profit on investment. It is submitted that earning profit on investment is the realm
of Companies and not of Government. Government makes investments in non profitable but socially
useful tasks like roads, schools, hospitals, law and order, police services, Defense services and
cantonments etc which do not give any monitory return to government.

4. Adverting to a pro judgment of Apex Court on this issue, reference is made to the case reported in
1991 SCMR 2164, Sardar Abdur Rauf Khan & others vs. Land Acquisition Collector/ Deputy
Commissioner Abbottabad & others, august Supreme Court of Pakistan observed in Para 20 of the
Judgment that, I QUOTE,
(Read Para 20 from the text of the judgment; after that, read the following text)
As regards disjunctive reading of the text of Sec. 23 (2), LAA and reading the word “and” as
“or” and vice versa, it is not clear from the enunciation of the august Apex Court as to what in the
context of the language of Sec. 23 (2), warrants the disjunctive reading of the statute and how this
construction would have bearing upon the rate of CACs.
Regarding concluding part of the observation that, “It cannot be denied that the land was
acquired for a public purpose for establishing industrial estate for the development of N.W.F.P. We
may observe that it seems the above point was not urged before the Courts below and, therefore, we
are not inclined even otherwise to entertain the above submission”,
5. It is submitted that land acquiring entity in Sec. 23(2), LAA, other than Company, is a public
purpose. This legal term has been taken on its apparent meanings most of the times without defining
it. Its definition is necessary for arriving at correct conclusion.
Black’s Law Dictionary (Sixth Edition), the most widely cited legal book in the world, explains
this term which is summarized as:
a) This is a term of classification to distinguish the objects which government is to provide, from
those which are left to private interest.
Here public purpose is the object of a government in contrast to that of private individuals or a
Company.
b) Public purpose that will justify expenditure of public money generally means such an activity
which will benefit the community as a body and not merely individual or class of persons and which
at the same time is directly related function of government.
Here public purpose is such a governmental activity that purports to benefit populace as a whole.
c) The term public purpose is synonymous with governmental purpose.
The term is too obvious to need any more explanation.
d) A public purpose has for its objective the promotion of public health, safety, morals, general
welfare, security, prosperity and contentment of all the inhabitants within a state, the sovereign
powers of which are exercised to promote such public purpose.
In the light of these explanations, public purpose is a Governmental activity that benefits the
community as a body and not merely individual or a class of persons.
As already discussed, land can be acquired under LAA, even for a Company, only for public
purpose. Promotion of public purpose is the common objective of both the land acquiring entities in
 Page 16 of 16

Sec. 23(2), LAA with difference only in commercial interest in the project for which land is
acquired. One land acquiring entity, Governmental purpose, does not envisage any return on
investment and has no commercial interest in the land acquisition, therefore, is liable to 15% CACs
and the second land acquiring entity is a Company, WAPDA in the instant case, by virtue of earning
return on investments, has commercial interest in land acquisition, is, therefore liable to 25 % CACs.
It is apparent that right approach neither renders Sec. 23(2), LAA, redundant nor is required any
construction to replace word “and” with “or” and vice versa. It affirms our earlier assertion that
public purpose as the determining factor for the rate of CACs is not correct. It is the return on
investment that makes WAPDA liable to 25% CACs with intent to pass on a bit of the profit to
land losers, some of whom even lose their livelihood with the land.

In another pro case reported in 1997 SCMR 1670, Haji Muhammad Yaqoob and another vs.
Collector Land Acquisition/Additional Deputy Commissioner, Peshawar, it was observed by august
Supreme Court on page 1682 that, “The learned counsels for landowners are unable to demonstrate
that the acquisition of the land by the Government was for a ‘Company’ and not for a “Public
purpose”.
It is respectfully submitted that status of WAPDA as a Company is no longer an issue because even
the judgments of august Apex Court favouring 15 % CACs in case of acquisition for a Company
explicitly accept WAPDA as a Company. Case reported in PLD 2002 SC 25, Nisar Ahmad Khan &
others v. Collector Land Acquisition Swabi & others (Copy required) is referred and I quote:
“Learned Division Bench further held that WAPDA though a “company” but since lands in question
had been acquired for public purpose, land owners were entitled to 15 % compulsory charges under
section 13 (2) of the Act instead of 25 %.” Unquote. Land acquisition for construction of residential
colony for the employees of WAPDA was for a public purpose but the public purpose as the
determining factor for 25% CACs even for a Company has already been discussed and proved to be
incorrect assumption. In view of this submission WAPDA, as a Company, remains liable to 25%
CACs because of commercial interest in the acquired land.
Further on in next Para on the same page of the referred case, it was observed that, “The learned
counsels for the landowners are unable to demonstrate that acquisition of land by the Government
at public expense for construction of residential colony for the employees of WAPDA did not
constitute a public purpose.”
Regarding acquisition of land for residential colony of WAPDA employees at public expense is
concerned, it is respectfully submitted that WAPDA has an “Authority Fund” which is utilized by the
Authority to meet the charges in connection with its functions under WAPDA Act; Sec. 22 WAPDA Act
is referred. Therefore these charges were at the expense of WAPDA, as a Company, and not at
public expense.
Regarding failure to demonstrate that the residential colony for WAPDA employees did not
constitute a public purpose, it is submitted that in view of entitlement of WAPDA to acquire land for
construction of residential colony for its employees as a public purpose this demonstration is not
required any more because the assumption of public purpose as determining factor for 25% CACs
has been proved to be incorrect. It is the commercial interest of WAPDA in the acquisition of land
which makes WAPDA liable to pay CACs at 25% as provided for in Sec. 23 (2), LAA and therefore
both the demonstrations required in the referred case are out of place.
 Page 17 of 16

Referring to the case reported in 2013 SCMR 1124, Civil Aviation Authority & others v. Rab Nawaz
& Others; it is submitted that this case along with the other two cases referred in it, namely Nisar
Ahmad Khan v. Collector Land acquisition Swabi, PLD 2002 SC 25 and Collector Land Acquisition
v. Muhammad Said through Lrs & others, 2001 SCMR 1032, repeat the same assumption of public
purpose as the determining factor for the rate of CACs even for a company which has been proved
to be incorrect..

NOTE: Sec. 13(3) WAPDA Act

13  (3)   The acquisition of any land or any interest in land for the Authority under this section, or
for any scheme under this Act, shall be deemed to be an acquisition for a public purpose within the
meaning of the Land Acquisition Act, 1894, and the provisions of the said Act shall apply to all such
proceedings.
COMMENT: WAPDA acquiring land for “public purpose” in Sec. 13 (3) WAPDA Act, is same as
the acquisition under Sec. 40 (1) (aa), LAA. A Company (WAPDA) is entrusted to promote a
“Governmental purpose, synonymous with “public purpose”, on behalf of Government under Sec.
13 (3), WAPDA Act, which also is its entitlement under Sec. 40 (1) (aa), LAA.

6. August Supreme Court and Hon’ble High Courts have held in several cases that WAPDA is a
Company within the meaning of Company as defined by Section 3(e) of Land Acquisition Act and
as such liable to CACs at 25% for land acquired for WAPDA.
6.1 Reference is made to the case reported in 2011 SCMR 118, Mst. Sumaira Gul v. Land
Acquisition Collector G.S.C WAPDA, Peshawar and others. August Supreme Court observed and
held in Paras 7, 8, 9 and 10 of judgment of the case that, I quote:
(Read highlighted text from copy of the case.)
6.2 In case reported in 2001 SCMR 974 = PLJ 2001 SC 1162, Secretary to Government of
N.-W.F.P, Peshawar v. Haji Fateh Khan, august Supreme Court hed that, I quote:
(Read highlighted text from copy of the case.)

6.3 PLD 1983 (Lah) 178, Muhammad Mushtaq Ahmad Khan and others v. The Assistant
Commissioner, Sialkot and others. (Copy required) The Hon’ble High Court held that, I quote: ? ? ?
6.4 2014 M L D 567 (Pesh.), WAPDA and others v. Muhammad Usman khan, RFA 99 of
2007; Hon’ble Peshawar High Court held that: ( Read highlighted text from copy of the
case)
6.5 RFA 104/2005, titled Qamar Zaman Khan and others v. LAC Ghazi
Barotha Hydropower Project and other; Hon’ble Abbottabad Bench of Peshawar High Court
held that: (Read highlighted text from copy of the case.)
6. 6 RFA No. 04/2006, LAC Ghazi Barotha Hydropower Project v. Shah Dad Khan; Hon’ble
Abbottabad Bench of Peshawar High Court granting 25% Compulsory Acquisition Charges, held
that WAPDA is a Company and not a Government Department

So, WAPDA is a Company in terms of section 3(e) of Land Acquisition Act and liable to pay 25%
compulsory acquisition charges pursuant to Sec. 23(2) of Land Acquisition Act. Appellants are,
therefore, entitled to compulsory acquisition charges at the rate of 25 % of the compensation of their
acquired properties and not at 15 %.
 Page 18 of 16

Next Issue: Indexing Delayed Compensation Payment

It is respectfully submitted that the impugned award was announced on 21 April, 1996 and delay in
compensation payment is about 22 years so far. The case is still in Hon’ble High Court and, there
will be further unknown delay in august Supreme Court of Pakistan. Currency loses its value due to
inflation every year. In the extended delay of the instant case this loss is tremendously high.
WAPDA has realized this huge loss to project affected persons and has provided for relief in their
own document titled Dassu Hydel Power Project, Social and Resettlement Management Plan,
Volume 5: Resettlement Action Plan. It is noted in this document at Article 5.7.4, Compensation and
Entitlement Policy, that, “If the payment is delayed more than two years from the date of valuation,
the values will be indexed annually before payment”. A copy of the relevant extract is attached at
page 248 available on Web link:-
http://www.wapda.gov.pk/phocadownload/DASU_Envroin/Design_ESR/SRMP%20Vol.%205-
RAP_Final_March%202014.pdf
In the situation that WAPDA has accepted the principle of indexation of delayed payments for Dasu
Hydel Power Project, principles of equality and non discrimination demand that outstanding
compensation payments of other project affected persons are also paid by WAPDA, in the same
manner as those of Dassu Hydel Power Project.
Reliance is placed on the case reported in PLD 2006 Supreme Court 66, Javaid Iqbal v. Abdul Aziz
and another, wherein it is stated in the judgment Para 10, page SC 72 that, “All procedural laws are
subservient to the cause of justice and, therefore, such laws neither limit nor control the power of
Court to pass an order or decree, which is necessary to do complete justice in the facts and
circumstances of the case. Construction of procedural law in a manner, which tends to obstruct the
course of justice, must be avoided as far as possible. The authors of Civil Procedure Code, 1908,
were fully conscious of the underlying object of procedural law and in all probability, in order to
remove and dispel all doubts in such regard, categorically provided in S.151 in Civil Procedure
Code, 1908 that nothing in the Code shall be deemed to limit or otherwise affect the inherent power
of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of
process of the Court”.
Reliance is also placed on case reported in PLD 2010 Saddaqat Ali Khan through L. Rs & others v.
Collector Land Acquisition & others.
2014 MLD 567 (Pesh), WAPDA and others Versus Mhuammad Usman khan, wherein 25 % CAC
were granted though 15 % CAC were requested in the Prayer of the case.

So, It is respectfully PRAYED that allowing the appeal the Hon’ble Court may graciously be
pleased to give relief as prayed in each issue, adding Compulsory Acquisition Charges at 25% of
the total amount of compensation and gross payable amount thus arrived at, is adjusted considering
Consumer Price Index Inflation (General Group ) since April 21, 1996, till the date of payment.