' ABDUL KHALIQ KHAN, J.-These two Regular First Appeals arise out of the same judgment and decree of the Referee/Judge (Additional District Judge), Haripur, dated 29th May, 1979.
2. The facts relevant for the purpose of their disposal, briefly stated are, that vide No, 16273/Rev, dated 5th May, 1967 the entire estate of `Daragre was notified for acquisition, under section 4 of the Land Acquisition Act, 1894. After going through the necessary preliminaries, the Land Acquisition Collector-II Tarbela, through his Award No, 50, dated 14th December, 1973 classified and assessed the acquired property. The owners of the landed property and that of fruit/non-fruit bearing trees, nearly 400 in number, were not satisfied with the classification as well as of the assessment of the Collector, therefore, they deemed it expedient to file objection-petition under section 18 of the Land Acquisition Act, which was sent to the Referee/Judge for disposal. It was stated therein that their (petitioners 1 to 336/A and B) acquired land is of the best quality of 'Nut Chahi' and that its market price is in no way less than Rs, 5,000 per kanal, but it has been under assessed. Similarly the remaining petitioners (Nos. 337 to 395) objected to the adequacy of compensation allowed to them for their fruit bearing trees. They claimed compensation at the rate of Rs, 1,000 per tree.
3. Notice was issued to the two respondents. The former failed to make appearance and was placed ex parte while the latter (respondent No, 2) resisted the claim of the petitioners and on the divergent pleadings of the parties, the following issues arose for decision :-
(1) Whether the objectors did not respond to the notice under sections 9 and 10 of the Land Acquisition Act, if so, its effect ?
(2) Whether the objectors have received the compensation without protest, if so its effect ?
(3) Whether the objectors' property has been wrongly classified and undervalued by the Collector, if so, what is the correct classification, market value and fair compensation to which the objectors are entitled ?
(4) Whether fruit bearing trees of the objectors have been undervalued by Collector, if so, what is the correct valuation and fair compensation to which the objectors are entitled ?
(5) Relief.
4. After recording such evidence as the parties wished to adduce the learned Referee/Judge vide his judgment, dated 29th May, 1979 discussed issues Nos. 1 and 2 jointly and decided them in the negative. On issue No, 3 it was held an area of 1,098 kanals 1 marla (out of the acquired land) is not fit for irrigation cultivation, therefore, the same will be given the class as fixed by the Collector and that the `Chak Bandi' record produced as Exh.0.W. 3/1 to Exh. 0. W. 3/5 shall form part of the judgment'. The remaining area was held to be of 'Nul Chahi' type and agreeing with the Acquisition Collector, its compensation was fixed at the rate of Rs, 3,301 per kanal. In consequence of his dis cussion on Issue No, 4, he based his assessment of compensation for the fruit bearing trees on the formula prepared by an officer of the Agriculture Department Hazara (who was examined as witness in Court). Keeping the age of each fruit bearing tree, it was directed that the assessments by the expert vide Exh.
0.W. 6/6 and Exh. 0. W. 8/1 were to form part of the judgment. The claim for the non-fruit bearing trees was however, rejected. In result, the objection petition was partly accepted. It needs no mention that the claimants, over and above were allowed 15% by way of compulsory acquisition charges and 8% compound interest on the enhanced amount from the date of taking possession till payment.
5. The contesting parties were not satisfied with the reclassification and assessment of the learned Referee/Judge. They have, therefore, preferred appeals in this Court which have been registered as Nos. 209/79 and 40/79.
6. The Acquisition Authorities in their Appeal (No, 209/79) have called in question the judgment of the learned Referee/Judge on the grounds that he has wrongly and illegally changed the classification of the acquired land excluding only an area of 1,098 kanals 1 marla, as nonNul Chahi type, though the Collector's classification was founded on reliable evidence in the shape of revenue record as it existed at the time of acquisition. Similarly they objected to the compensation for the fruit bearing trees alleging that this assessment was based on evidence which was by and large inadmissible and moreover, the learned Referee/Judge has also excluded from consideration important evidence.
7. On the other band, the claimants too expressed their dissatisfaction with the classification and assessm ent of their acquired property (Appeal No, 40/79). They claimed compensation at the rate of Rs, 10,000 per kanal for their 'Nul Chahi' type of land, Rs, 3,000 per kanal for irrigated/uncultivable land, Rs, 2,000 per fruit bearing and Rs, 1,000 per non-fruit bearing trees. In this connection it was stated that the market value of the land could be determined on the basis of compensation awarded for adjacent lands but the learned trial Court has ignored the judgments with regard to the adjoining villages of Phuldhar', 'Jaura Find' and Kalabat though the award exhibited that village 'Daragari' is bounded by the said villages. They further expressed their dissatisfaction with the assessm ent of the fruit bearing trees.
8. We heard at length the learned counsel for the parties and also perused the record.
9. Taking the appeal of the claimants for consideration being filed earlier in time we deem it necessary to emphasize the legal position that unless an objection is specifically taken in the application for reference with regard to a matter stated in the award of the Collector, such question cannot be urged at the time of hearing of the case before the Court. For support reference can be made to the authority cited as AIR 1927 Cal. 415.
10. In the appeals under consideration, we shall, therefore, confine ourselves to the objection referred to in the petition under section 18 of the Land Acquisition Act, wherein the claimants have objected to the classification of the land contending that theirs is land of good quality of 'Nul Chahi' and that its market value is not less than Rs, 5,000 per Kanal. It is thus crystal clear that they have circumscribed their claim to classification of the land and in result have asked for compensation at the rate of not less than Rs, 5,000 per Kanal. In view of their declared claim, we are only to determine. Firstly, how much of their required land was of 'Nul Chahi' type and secondly to assess its compensation which in view of their pleadings could be up to Rs, 5,000 per Kanal. They, in the circumstances could not be permitted either to add other kind of land to their claim or enhance the earlier claimed compensation amount for 'Nul Chahi' type of land. Even the evidence of Mir Afzal Khan, the only objector who was examined in support of the objection petition of the claimants, will be sufficient to negate their contention. He has deposed that our lands are 'Nul Chahi'. We should be paid compensation for the land as 'Nul Chahi'. It may however, be noted that he has failed to specify the compensation amount.
11. The first question that falls for determination would be if the entire acquired land is of 'Nul Chahi' type as submitted by the claimants.
12. We have perused the available record and are of the view that the finding of the learned Referee/Judge in this respect finds support from the documents. After the due consideration of the revenue record it was determined that except for the land measuring 1,098 Kanals 1 Marla, the remaining acquired land was 'Nul Chahi'. We find no cogent evidence to prove the contrary. In the circumstances, we see no reason to differ with the finding of the lower Court.
13. The next question for consideration would be with regard to the adequacy of compensation awarded for 'Nul Chahi' kind of land. We are in full agreement with the learned counsel for the claimants that the compensation for the acquired property must be D 'fair', adequate and as far as possible uniform, but here it will require determination, what in the facts and circumstances shall be the compensation considered adequate. It may be necessary to state at the outset that valuation of immovable property is not an exact science. It is in fact, as they say, an enquiry relating to a subject 'abounding in uncertainties where there is more than ordinary guess work and where it would be very unfair to require an exact exposition of reasons for the conclusions arrived at'. It has been held repeatedly that in all valuations, judicial or otherwise there must be room for inference and inclinations of opinion, which being more or less conjectural are difficult to reduce the exact reasoning. Each case is required to be decided on its own merits and no cut and dried formula can be laid down which can be applied to all cases uniformly.
14. In the case before us, the Acquisition Collector has founded the award on various sale mutations attested in the estate during the relevant time but it was argued that as this Court has awarded compensation at much higher rate for the land of the same class in the adjacent village of `Kag', therefore, the present claimants be also awarded compensation at the same rate.
15. It is however, worthy to note that no such claim was made in the grounds of appeal and in fact, the claimants asked for compensation as awarded for the acquired land of three other adjacent villages,E namely, Phuldar, Jaura Pind and Khalabat. Their contention at the stage of arguments, hence, would have no validity. However, in the circumstances, it would be more fair if we adopt the formula as suggested by the learned counsel for the Land Acquisition Collector and others, that instead of following the rates of one village of the choice of the claimants, we work out the compensation on the basis of the 'average' for such kind of land as allowed in the adjoining villages, namely, Phuldar and the village under discussion Daragri. The assessed compensation founded on this formula shall be calculated as below :- {{TABLE}} Village Compensation awarded for such kind of land Jaura Pind Rs, 3,100 per Kanal Khalabat Rs, 3,112 Baseera Rs, 3,000 Kag Rs, 7,000 Phuldar Rs, 3,301 Daragri Rs, 3,301 ' The average per Kanal on calculation would come to Rs, 3,802.22. {{TABLE}}
16. Having disposed of the questions of classification and compensation for the landed property, objected to in both the appeals we are now to consider compensation as awarded by the Referee/Judge for the fruit bearing plaints/trees. It is to be noted that the learned Referee/Judge has been impressed and taken into consideration, the 'age' of the fruit bearing plants. However, no such limitation was placed on assessing the various kinds of fruit bearing trees in Sher Ahmed Khan and 4 others v. The Land Acquisition Collector and 2 others (1). We have been following this assessm ent and see no reason to depart from it. On the basis of the said authority the fruit bearing trees mentioned therein stand assessed at the following rates :- {{TABLE}} Mango Rs, 300 per tree Plum Rs, 240.50 Malta/Mitha Rs, 200 Guava Rs, 200 Louqat Rs, 76 ff Grapes Rs, 140.50 Appricot Rs, 300 Pomegranate Rs, 300 Peach Rs, 162.50 Fig Rs, 200 {{TABLE}}
17. In the precedent case, fruit bearing trees of this kind of Almond, Ber, Malbery, Banana, Pear and Sevile Orange were not involved, therefore, keeping in view the formula of the expert, which has been followed, while ignoring their age, the compensation for them shall be as follows :- {{TABLE}} Almond Rs, 306.75 per tree Ber Rs, 241 Mulbery Rs, 75.50 Banana Rs, 16.50 Pear Rs, 210.50 Sevile Orange Rs, 75.25 {{TABLE}}
18. In result we would partially accept the two appeals and would hold the claimants/owners entitled for their Nul Chahi' type of land at the rate of Rs, 3,802.22 per'Kanal and for the fruit bearing trees at the rates detailed above. In addition they shall be entitled to 15% by way of compulsory acquisition charges and 8% compound interest on the enhanced amount from the date of taking possession till payment. The parties, in the circumstances, are however, to be left to bear their own costs.
19. (1) PLD 1978 Pesh. 138