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

ISSUE: Acquired Land Wrongly Classified & Under-Valued

Wrong Classification of Land.

 Reference is made to Aks Shajra Kishtwar, EX-OW 2/3 on page 47: (Read following text)
It is confirmed 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.
 Reference is made to the statement of Patwari Halqa, O.W 2 before the Learned Referee
Judge on pages 36 and 37. Patwari Halqa 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. Statement of Patwari Halqa is 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:
(Read following text)
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: (Read following
text)
The compact block of suit lands is identified in the map as Raqba Mutadaavia.
Noteworthy in the map is hat:
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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.
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;
And after that read following text)
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
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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. Classification of some of the suit
khasras as Maira type land in the impugned award is liable to be set aside and all the suit
khasras are classified as Bagh/Chahi/Abadi tobserved ype of land.

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 RaqbaMutadaavia over there.

2. Now I take up 2nd Part of the Issue, that is, UNDER VALUATION OF LAND

 Reference is made to impugned award, EX-OW 4/R-1, page 105 and 107 for two
observations of Collector. Collector observed on page 105, which I Quote:
(Read highlighted text on page 105)
Collector made another observation on page 107, which I Quote:
(Read highlighted text on 107and after that read following text
In the light of these observations 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;
after that read following text:
Collector did not provide any substantive information or justification of the
recommendations of Land Valuation Committee Report. He stated only that the report was
sent to him by Deputy Commissioner Haripur in a confidential letter suggesting value of
Maira land as Rs. 62,415/- per kanal which was to be considered as base for valuation of
other types of land. Other lands were evaluated using arbitrarily selected multiples to the
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suggested value of Maira land, enhanced further by 10 %. Collector did not provide any
logic for selection of multiples and 10 % enhancement for evaluation of other types of
land. Collector’s actions on confidential recommendations of LVC Report do not inspire
confidence in this report. Failure of collector to provide any substantiation of the formulas
used for valuation of other types of land in award No. 2 makes the entire exercise of
evaluation of land in award No.2 of village Khalo completely arbitrary. There is no
justification to make such arbitrarily fixed rates of land based on a non transparent LVC
report in award No. 2 as base for evaluation of respective types of land in the impugned
award.
Formulas used in award No.2 of village Khalo are a distorted version of another method of
evaluation based on rate of land revenue or Parta, as called in revenue terms. 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 fetch higher market rate and lesser rate of land revenue or
Parta is levied on less productive lands which fetch lesser market rate. Thus market rates of
lands in an award are proportionate to their Partas provided their potentialities other than
productivity are same.
This relationship of market rates of different 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.
In actual application of this relationship, market rate of Maira type of land 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. Parta based evaluation of land is
entirely rational and there is no element of arbitrariness in the whole process.
 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.
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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.
 Reference is made to Para 10 on page 105, wherein collector observed that,
(Read highlighted text on page 105;
After that read following text )
In the circumstances of the instant case, Parta based evaluation of land in the impugned
award is the most appropriate and equitable method.
Collector also observed in Para 12 on pages 107 that: (Read highlighted text;
After that read following text)
In view of these similarities noted by collector and contiguity of the compact block of suit
lands, being just across the road from village Khalo, it is fully justified to make value of
Maira land in award No. 2 of village Khalo as base and evaluate other types of land in the
impugned award proportionate to their Parta with Parta of Maira type land of Village Khalo.
(Submit copies of the Order of Collector Land Settlement for Village Khalo to the Court;
After that read following text)
Ratio between Parta of Maira and Chahi land of village Khalo is 1:10; copy of the order of
Collector Land Settlement for village Khalo is referred.
So, based on Maira rate of Rs. 68,656.00 per kanal in award No.2 and Parta ratio of Maira to
Chahi as 1 to 10 of village Khalo, the fair assessment of market value of Bagh/Chahi/Abadi
type of land in the impugned award is Rs 10 x 68,656 amounting to Rs. 6, 86,656/- per kanal,
which Hon’ble court may graciously be pleased, to allow.

Next Issue: Fruit Trees Wrongly Counted, Wrongly Classifi ed and

Under-Valued

1. First I take up Wrong Counting & Wrong Classification of Fruit Trees

 Reference is made to EX-OW 4/1, page 98. (Read following text )

Collector asked Development Officer, Fruit & Vegetable Board, Ghazi, for the assessment of
the orchards in the project area in presence of his field staff.
In response, Fruit & Vegetable Board, Ghazi, submitted two Reports; one report concerned
counting of fruit bearing trees counted by field staff of Fruit Board in presence of
representative of revenue department of collector; EX–OW 3/1, on page 92, is referred. The
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second report is referred as EX-OW 3/2, on page 95, which related to yearly income from
various types of fruit trees.
Without refuting the report of counting submitted by Fruit Board, Ghazi, EX-OW 3/1,
prepared on orders of collector, another report of counting of fruit trees, EX- OW 4/R-11,
given on page 153, was prepared and acted upon by collector in the impugned award.. This
report was prepared by collector without knowledge of Appellants. Neither the Report nor
the purported inspection which generated this report has the date of issue of the Report or
the date of the inspection.
 Reference is made to Notice under Sec. 9 & 10, LAA, issued on 22/11/1995 and served on
the Appellants on 16/12/1995, given on page 155. (Read following text)
Your honour may kindly note that the Notice does not contain any counting or classification
of fruit trees, non fruit trees or any measurements of Built-up property of Appellants under
acquisition, as requird in Sec. 8, LAA. In this situation Appellants were unable to submit
objections on the above mentioned properties and requested collector for setting a new date
for this purpose when counting of fruit trees and measurements of built-up property was
made known to Appellants. EX- OW 4/5, page 157, point 5, is referred; (Better copy on
page160 may be referred for the sake of convenience).
Collector did not respond to Appellant’s request and kept the report prepared by him
confidential, till announcement of the impugned award. Appellants were thus denied their
legal right to have contested the report, EX-OW4/R-11 if its contents were given in Notice
under Sec. 9 &10. Collector’s acquisition of Appellants Orchard without fulfilling the
requirements of Sec. 8 and 9, LAA, is an irregularity and denial of the valuable rights of
Appellants.
 Referring to impugned award, EX-OW4/R-1, on page 111, collector took following drastic
actions pursuant to report, EX-OW4/R-11.
(Read following text)
i) Classified 145 orange trees, 73 mango trees 15 guava trees of age from 5 to 10 years as
“nursery” and 112 apple trees and 3 almond trees, both, of age 8 years, as
“ornamental”.
ii) 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, submitted by Fruit Board staff on orders of collector, although
counting of fruit trees was done by Fruit Board staff jointly with representative of
revenue staff of collector, and;
iii) Acquired these fruit trees numbering 459, without paying any compensation, not even
as fuel wood, in violation of Article 24 of Constitution of Pakistan.
The fictitious report, EX-OW 4/R-11 could not remain un-noticed by Hon’ble Peshawar High
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Court, Abbottabad Bench, during proceedings of impugned RFA No. 30/2000 dated
24.5.2005. Inconsistencies, discrepancies, fallacious assessment and unjustified decisions by
collector in this report were noted by Hon’ble Peshawar High Court, Abbottabad Bench in
the impugned judgment of RFA No. 30/2000; 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;
After that read following text).
Hon’ble Peshawar High Court, Abbottabad Bench, giving partial relief allowed compensation
of the fruit trees classified by collector as “nursery”. However, the yearly income from fruit
trees allowed by Hon’ble Court was not according to EX-OW 3/2, the report of yearly income
of fruit trees submitted by Fruit Board on orders of collector, at page 95, nor capitalized for
20 years in accordance with WAPDA Guidelines in Resettlement Action Plan, EX-OW 1/R-1,
on page 35, though the compensation of orchards has 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 rates of 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:
1. Hon’ble Peshawar High Court, Abbottabad Bench allowed compensation of Apple trees,
in the clubbed case, RFA No. 136 / 2003 dated 24.5.2005 and giving no verdict on
classification and compensation of Appellant’s Apple trees appears to be an omission.
Page 170 is referred and quoted for the sake of convenience.
(Read highlighted text on page 170;
After that read following text)
2. 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.
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3. None other than collector, granted compensation of apple trees in award No. 3 of
adjacent Village Ghazi acquiring orchards for the same project; pages 146 and 147 are
referred.
4. Compensation of Almond trees was paid in award No. 2 of adjacent village Khalo, Field
Book of Counting and Estimate of Fruit Trees in award No. 2 of village Khalo, page 187 is
referred.
Collector failed to dispense justice by arbitrary and discriminatory assessment of Appellants
compensation of fruit trees. Collector applied different yardstick in different awards for
compensation of Apple and Almond trees.
Regarding reduction in number of fruit trees, it is submitted that the number of fruit trees
was reduced by collector on the basis of fictitious Report EX OW 4/R-11 which contained
clear inconsistencies and discrepancies and Hon’ble Peshawar High Court, Abbottabad Bench
noted in the Judgment of RFA No. 30/2000, that, “the learned counsel for the
respondents/acquiring department was unable to convince the Court that the report
submitted and acted upon by collector in all probabilities is fair one.” Page 166 is referred.
Preparation of the report EX-OW4/R-11 by collector without involving Appellants, keeping it
secret to deny Appellants the right to have contested it, irregular and illegal acquisition of
fruit trees without fulfilling requirements of Sec. 8 & 9, LAA and acquiring 459 fruit trees
without paying any compensation violating the Constitution of Pakistan, clearly proves the
report EX-OW4/R-11 as a non transparent, biased and fictitious document prepared for
ulterior motives. Against this Report is the un-refuted Report EX OW3/1of counting of fruit
trees, prepared and submitted by Fruit Board official on the orders of collector and counting
in presence of representative of revenue staff of collector.
So, the report, EX-OW 4/R-11 is liable to be set aside including 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.

2. Now taking up 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,. (Read following text)
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.
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 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;
After that read following text)
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 that compensation was assessed through the Fruit &
Vegetable Board with loss of earning for a period of 20 years, collector adopted his own
estimate of highly reduced annual income without refuting the estimate of annual income
from fruit trees, EX-OW3/2, submitted by Development Officer Fruit Board, Ghazi on asking
by collector. In addition, collector reduced the period for capitalizing annual income from 20
years by subtracting the age of fruit trees at the time of award, in violation of 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 Award No.2 for capitalizing yearly
income from orchard for 20 years and against impugned award and award No. 6, for
obtaining legal cover for violation of WAPDA Policy Guidelines by reducing the capitalizing
period 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 file appeal against the common judgment of RFA No. 65 of 2004 in august
Supreme Court of Pakistan. Also, WAPDA not dispute the market value of fruit trees as
assessed by Fruit Board Expert, EX- OW 3/2, in RFAs No. 65 to 67/2004. Thus capitalizing
period of 20 years and yearly income from fruit trees on the basis of EX-OW3/2 stands
accepted by WAPDA and has reached finality.
Appellant’s contention for capitalizing the yearly income of fruit trees for 20 years, gets
further 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)
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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 was allowed and paid
in award No. 2 of village Khalo while in the instant case, Appellants were discriminated
against by 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 on 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: In Determining the Amount of Compensation Awarded for the Land Acquired, the
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 Bagh/Chahi/Aabadi
type land to non irrigated and less productive Maira type land. In addition, the orchard
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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

 Page 12 of 20

(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
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 x
12.9% = Rs. 4, 128 /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. 4, 128/sq m and not at the rate Rs. 3, 200/sq m.

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

 Page 13 of 20

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.
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).
 Page 14 of 20

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%.

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.
 Page 15 of 20

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)

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
 Page 16 of 20

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 Sec. 23(2), LAA with difference only in commercial interest in the
 Page 17 of 20

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
 Page 18 of 20

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.

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
 Page 19 of 20

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 %.

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
 Page 20 of 20

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.

Also, refer to case of Farman in which compensation was enhanced by 30 % over and above
gross compensation after adding compulsory acquisition charges and 6% bank mark up on
account of delay in compensation payment????

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.

FOOT NOTE: Difference between files “ Arguments 3112” and “Arguments 1912” is only in
evaluation of Landed Property. Evaluation of Landed Property in “Arguments 3112” is based on Maira
rate and Parta of Village Khalo whereas in file “Arguments 1912” evaluation is based on Maira rate and
Parta of village Ghara.