1. ' IFTIKHAR MUHAMMAD 'CHAUDHARY, J.---By this common judgment, we intend to dispose of Appeals Nos.30 and 45 of 1995, as both appeals are arising out of same judgment and identical questions of law and facts, are involved therein.
2. ' Facts of the case are that vide Notification, dated 14th May, 1990, Assistant Commissioner/Collector, Quetta, on observing all legal formalities, pronounced the Award to pay compensation to appellants-landlords at the rate of Rs,11 per square feet, exclusive of 15% compulsory acquisition charges in respect of the lands entering into Khasra Nos.315/316/317/541/319/309/321/ 322/314/318/308/320/389/1/555/335/623/336, 624/337 and 334 measuring 18 acres 1 rod 13 pols, situated at Mahal and Mouza Karez Mubarak Shah, Tappa Beleli, Mouza Khezai, Tehsil and District Quetta, which was acquired for the benefit of Military Estate Office, Quetta Circle. The owners/private appellants claimed compensation at the rate of Rs,30 p.s.f. While submitting their reply to the notices issued under sections 4 and 9 of the Land Acquisition Act.
3. (hereinafter referred to as 'the Act'). As such, feeling aggrieved from rate of compensation owners/ appellants filed reference under section 18 of the Act. The Collector, as well as Military Estate Officer on behalf of Defence, contested the reference. The learned District Judge framed following issues for determination:---
(1) Whether the amount of compensation awarded by the Collector is not according to the prevailing market value?
(2) Whether the applicants are entitled to the compensation of Rs,30 per sq. Ft.?
(3) What should be the relief?
4. ' The owners/private appellants got recorded statements of P.Ws. Aslam Pervez, Chengaz Khan, Abdul Karim and Abdullah Khan, whereas Assistant Commissioner/Collector, and Military Estate Officer, produced to Amir Jan and Muhammad Farooq, respectively.
5. ' The learned Additional District Judge, to whom in the meanwhile reference was transferred vide judgment, dated 22nd August, 1995, enhanced the rate of compensation from Rs,11 to Rs,12 p.s.f.
6. With 15% compulsory acquisition charges.
7. ' Private appellants vide R.F.A. No,30 of 1995, preferred appeal, claiming following relief:- "It is accordingly respectfully prayed that the judgment and decree dated 22-8-1995 passed by Additional District Judge-I, Quetta may kindly be modified and the amount of compensation may be enhanced from Rs,12 to Rs,13 per sft. As claimed by the appellants and the decree may be accordingly passed..
8. ' Any other relief as may be deemed fit and appropriate in the circumstances of the case may also be granted along with cost of the appeal."
9. ' Whereas M.E.O. Had filed R.F.A. No,45 of 1995, seeking following relief:--- "It is, therefore, respectfully prayed that order and decree, dated 22-8-1995, passed by the Additional District Judge-I, Quetta, whereby the reference of the respondents have been accepted may kindly be suspended till final disposal of the appeal, in the interest of justice."
10. ' Mr. Shakeel Ahmad, learned Advocate, appeared on behalf of appellants, whereas Raja Rab Nawaz, Deputy Attorney-General, appeared on behalf of Military Estate Officer.
11. ' Both the learned counsel for parties, contended that learned Additional District Judge had passed the impugned order, contrary to the considerations laid down under section 23 of the Act, to determine compensation.
12. ' The counsel for owners/landlord urged that modification in Award from Rs,11 to Rs,12 p.s.f. Has been made contrary to evidence available on record. He frankly conceded that rate be enhanced to Rs,14 p.s.f.
13. ' Whereas learned Deputy Attorney-General, contended that as the lands acquired for the purpose of defence, are barren in nature, therefore, no enhancement in compensation, was warranted.
14. ' Chaudhry Ejaz Yousaf', learned Additional Advocate-General, supported the Award pronounced by Collector, because as per his stand, the Collector had taken into consideration the market value of the land, which was prevailing at the time, when Notification was issued. Therefore, his argument was that enhancement in compensation by learned Additional District Judge, is based on extraneous reasons.
15. ' We have heard the parties counsel at length and considered their respective contentions.
16. As per section 23 of the Act. Burden of proof lies upon the owners/landlords claiming compensation to establish the market value of the property which was prevailing on the date of publication of notice under section 4 of the Act and the Collector is required to determine compensation, keeping in view the parameters laid down under section 23 of the Act. Including the fact that what price a willing vendor could reasonably expect to obtain from a willing purchaser. In addition to this, it is also obligatory upon the Collector to keep in mind the status of the property with reference to the place where it is situated, its future prospects towards the development of the area, the damage which vendor will sustain if portion or his land is acquired and the factors that on 'acquiring such portion of land the utility of his remaining property, will impair or improve.
17. ' Both parties produced number of documents, in support of their contentions. The landlords produced mutation entries and agreements including the Award' of Collector, previously made by him in respect of acquiring the lands for other Agency, as Exhs.P/A to P/J, which pertains to the year 1988-89. In these documents Exh.P/E is the report of Tehsildar dated 28-1-1992, in which he has fixed compensation of the land which is subject-matter of appeal, at the rate of Rs,25 p.s.f. Similarly Exh.P/F is an agreement dated 13-9-1988 to sell the land by one of the appellants to C & W Department, which was subsequently cancelled. As these documents are not based on any evidence, therefore, they are to be kept out of consideration. However, on the basis of remaining mutation entries the average price comes to Rs,13.66 p.s.f. In these transactions there are certain lands which were better category-wise as they were situated on road side, having shops built on them, whereas the disputed land is away from the main road and no construction of whatsoever nature was raised over it, nor evidence has come on record that they were cultivable.
18. ' On the other hand, Collector produced mutation entries of some area pertaining to the year 1988- 89 as Exhs.R/1 to R/9, average price of which comes to Rs,10.94.
19. In view of material available on record and considering all other relevant factors, the learned Additional District Judge has rightly fixed the compensation at the rate of Rs,12 p.s.f. Plus 15% compulsory charges.
20. ' As a result of above discussion, both appeals fail thus are dismissed. Parties are left to bear their own costs.