' ABDUR REHMAN KHAN, J.---Both the above noted appeals arise from a common judgment dated 15-9-1991 of the learned Acquisition Judge, and therefore, this judgment will dispose of both of them. R.F,A. No,73 of 1991 is by the landowner who feels aggrieved from the assessment made by the Collector and the Acquisition Judge and has, therefore, prayed in the appeal that the amount of compensation may be further enhanced. On the other hand, the relief sought by the Collector in his appeal R.F.A. No,12 of 1992 is that the market value worked out by the referee Judge may be reversed and that fixed by the Collector in his award may be restored.
2. It is to be noted at this stage that Mst. Asmat-un-Nisa and Mst. Musarrat Munir, respondents in these appeals, have moved C.M. No,108 of 1992 in R.F.A. No,12 of 1992 and C.M. No,107 of 1992 in R.F.A.
No 73 of 1991 under Order XLI, Rule 33 read with Order I, Rule 10 and sections 141 and 151, C.P.0 to be impleaded as appellants in the appeals and be allowed compensation at the rate which may be determined by this Court in the appeals. We propose to decide these applications first and would then discuss the merits of the appeals.
3. The applicants made an application on 14-2-1982 to the trial Court for their impleadment as party in the case. The said application was dismissed on 19-5-1983 by the Acquisition Judge. It is, however, curious that no relief was sought in the superior forums against this dismissal order and the present application was made in this Court on 16-5-1992 almost nine years back, therefore, the dismissal order has attained finality against the applicants.
4. The material contents of these applications are that 20 Kanals of land was purchased by Firm M/s. Babu Munir Ghulam Siddique through sale-deed dated 23-11-1942 registered on 18-6-1943.
Babu Munir, husband of Mst. Asmat-un-Nisa and father of Mst. Musarrat Munir was partner in the said Firm which was duly registered under the Partnership Act. It is alleged that the partnership still persists, and therefore, the reference should have been made in the name of the firm as the property was owned by the firm. Babu Munir had died in the year 1954 and was survived by the said two ladies and thereafter, Ghulam Siddique, petitioner No,1, was running the affair of the Firm, therefore, he was bound to file the reference in the name of the Firm as the land was included in the assets of the firm. The exclusion of the applicants from the objection petition was described as mala fide act on the part of Ghulam Siddique, petitioner No, 1 . These applications were opposed both by the objectors as well as by the Land Acquisition Collector.
' In their reply, the applications were termed as barred by time and the petitioners were declared as estopped by their conduct from filing the objection petition. The existence of the firm at the time of filing of the objection petition was denied. It was replied that the objectors and the applicants had specified shares in the acquired land and the applicants received the compensation amount without any protest, therefore, they were estopped to agitate the matter of compensation further.
Moreover, the applicants failed to file any objection down in the said authorities were under different and distinct circumstances and petition in terms of sections 18 and 30 of the Act.
' Khurshid Ahmad, Advocate, appearing for the applicants submitted that when an grant the 'relief even to non-appealing party under Order 41, rule 33 and 352, AIR 1963 Punjab 490, 1985 SCMR 401, 1992 SCM R 1208. The rules laid appeal is filed in an acquisition matter, then the entire lis comes before the Court, remains open for -determination and, therefore, the Appellate Court can sections 141 and 151, C.P.C. In support of this proposition, he relied on PLD 1988 Peshawar 71, PLD 1964 SC 502, PLD 1980 SC 510, AIR 1927 Calcutta.
5. Arguments were heard in detail on these two applications. Mr. Cannot be applied to the facts of this case. In PLD 1988 Peshawar 71, although the relief was given in appeal to the non-appealing party but that party has preferred objection petition in terms of section 18 of the Act. Moreover, the High Court in the appeal had held that the objectors were entitled to the relies which naturally included those who had filed the objection petition. Besides that, the entire land was in dispute in those proceedings. In the instant case, the applicants have not filed any objection petition and they have received without protest the amount of compensation for their specified share. 1992 SCM R 1208 also proceeds on entirely different facts as in that case joint decree in favour of the co- sharer was passed, therefore, it was held that the decree could be executed even at the behest of the decree-holder who was not party to the execution proceedings. The relief granted in PLD 1989 SC 510 was made possible as the Advocate-General did not oppose it. In AIR 1963 Punjab 490, the dictum is that if the property is joint and the co-owner has no distinct and specific share therein, then a reference under section 18 of the Act by one co-owner would benefit the other co-owner.
However, it was also held that in case of specified share, the objector would be competent to act only on his behalf. AIR 1927 Calcutta 352 would also not apply as in that case, the property related to Wakf property and it was held: "Where the property acquired is Wakf property, although the subject of reference is valuation of the property, it is open to any one of the body of trustees to come forward and ask that he should be allowed to appear in the Court of the Judge and be permitted to place before the Court such material as he may have in his power to enable the Court to arrive at a proper decision as to the value of the trust property."
' PLD 1964 SC 502 has no bearing on the points raised in the present case. 1985 SCMR 401 was a case under Arbitration Act which had distinct provisions from the Land Acquisition Act. Moreover, the learned counsel was probably oblivious of the fact that the applicants had received the share of compensation for their specified share in the property and that too, without any protest. The applicants knew about the acquisition amount without any objection. The next contention advanced from the applicant's side was that the property was owned by the Firm and it continued to be as such at the time of acquisition, therefore, the death of the predecessor of the applicants who was a partner of the Firm would not affect the status of the property as property of the Firm.
This argument is devoid of substances as the applicants received compensation of their specified share without any protest which meant that they did not consider the property to be that of the firm. Moreover, there is no material on record to support the stance of the applicants that after the death of their predecessor in 1954, the partnership continued till 1977 when the property was acquired. The last contention was that he earlier decisions against the applicants, as referred to above, would not count to res judicata. There is no cavil with this proposition and the applications are not dismissed on that count. However, no one can be permitted circumvent the process of law.
The applicants were required to have proceeded in the matter in accordance with law and no relief can be given in violation of the requirements of law. Section 18 of the Act provides the manner under which the Collector can be approached for reference of the objection petition to the referee Judge. Contents of such application and the time framed under which it is to be made have been prescribed in that section. The petitioners cannot be, therefore, permitted to bypass the relevant law and to be even relief which they never cared to obtain in a manner provided by law. The applications are, therefore, found without substance and are dismissed as such.
6. In order to appreciate the merits of the case, it would be necessary to give a brief summary of the pleadings and evidence of the parties. By Award o.1835-37/305-P drawn on 26-4-72, the land owned by the appellant in .F.A. No,73 of 1991 was acquired for construction of bus stand. Notification der section 4 of the Land Acquisition Act (henceforth to be referred as the was issued on 15-2-1971.
The Collector Acquisition fixed the market value the acquired land at the following rate:- Shah NehriPer KanaRs.3,895 Banjar Qadim Rs.8,342 Nehri Awal Rs.1,477.20 Ghair Mumkin Rs.2,307.60 ' The appellants in R.F.A. No,73 of 1991 were not satisfied with the assessment of market value in the award of the Collector, therefore, they approached the Collector under section 18 of the Act to refer their objection petition for decision of the Acquisition Judge. It was alleged in the objection petition that the acquired land was situated on the G. T. Road and was rounded by industries, workshops, Cold Storages, Flour Mills etc. It was also that this land was located in the area of Municipal Corporation and had the potentialities for further development. It was also stated that it could fetch .12 per sq. Foot but the Collector has fixed very low price. The compulsory aqaquisition charges were also claimed at the rate of Rs,25 and the interest at the e of Rs,8 was also prayed for.
The objection petition when referred by the Hector for decision of the Court was opposed by the Collector as he sstroverted the allegations relied on for the enhanced claim and maintained that price fixed in the award of the Collector was correct.
7. The evidence examined at the trial consists of the statement of P.W.1 same Khan, Record-Keeper, who produced consolidated ' Aks Shajara htwar' of the village Hazar Khani where the land is situated and the other accent villages Sarbulandpura and Mahal Tukra No,1. P.W. 2 is Sardar Abdus ad Khan, EAC, who proved his report Exh.PW 2/2 which according to him based on the reports of Patwari and Girdawar which comes to Rs,45,000 per 'b. P.W.3 is Gohar Ali, Patwari Halqa, Sarbulandpura. He stated that the d of Hazar Khani is near to Peshawar. He produced one year average .PW 3/1 from the period 20-8-70 to 19-8-1971. Petitioner No,1, Ghulam dique appeared as P.W.4. He stated the land owned by the petitioner is fated on the main G.T. Road. It is in the area of the M.C. And it is also a tension of the Peshawar City. Azim Cold Storage, Iram Cold Storage are mud of the land of the petitioner. There is also a pipe factory in this very poverty. It has become a Bazar because shops have been constructed on either e of the road. There are small factories including the flour mills in the near inity of the area.. Hazar Khawani village is situated at a distance of 1 to 2 es away from this land". This witness also brought on record the decisions of Acquisition Judge, the High Court and the Supreme Court as Exh.PW. 4/14 xh. PW 4/16 respectively and stated "the landed property of similar nature which was away from the G.T. Road was also acquired by the same award and bjection petition was filed by the owner Maj. Muhammad Hasan Khan in the Court of S.C.J., Peshawar which was accepted and the price of erty was fixed at Rs,10 per sq. Foot de Exh.
C.W.4/14. He claimed "we are entitled to Rs,12 to Rs,15 per sq. Foot keeping in view the location of the land. The present value of the land is not less than Rs,400/500 per square foot". It appears that the statement of this witness remained intact as no cross-examination was directed against it. P.W.5 is Gohar Ali, Patwari, who stated: "This area is contiguous to Tukra No,1 and Sarbilandpura--towards the north of the G.T. Road. While village Chughalpura is about 3/4 miles away towards Nowshera side on the G.T. Road. Similarly WAPDA Gride Station is at a distance of two furlongs and is in the limits of village Sarbilandpura. As the Bunjura lands are mainly near the vicinity of the Peshawar City, therefore, for construction, its rates are very high. The disputed property situate in the M.C.
Limits. The property in dispute is in-between the land of village Sarbilandpura and Peshawar City".
O.W. 6 is Muhammad Yousaf Khan, Patwari, Tukra No,1, who stated that the property in dispute and the lands of Tukra No,1 and Sikandar Town are contiguous. He also gave detail of prices given in the following mutations:-- Mutation No.Date of AttestationArea Price 2114 3-4-1971 7-MarlaRs.22,000 2003 1-5-1971 2 KanalsRs.8,000 4 Marlas 1887 6-2-1970 7 MarlasRs.65,000 ' As against this, the respondents preferred not to produce any evidence in rebuttal.
8. We heard the learned counsel for both the parties and went through the record.
9. The Acquisition Collector has fixed the price per Kanal as indicated above. The learned Acquisition Judge mainly relied on Exh. C.W. 4/14 which is the decision of the learned Acquisition Judge regarding the claim of the other owners in respect of the disputed award and which was delivered on 6-11-1982. In this judgment, the price fixed was Rs,10 per sq. Foot plus Rs,15% compulsory acquisition charges. This judgment was confirmed in appeal by the High Court by judgment dated 29-8-1983 (Exh. PW 4/15) and was also approved by the Supreme Court on 6-4- 1985 as is clear from Exh. C.W. 4/16. The learned Acquisition Judge in this case was of the view that Rs,10 per foot would be adequate price as that was fixed earlier in the judgment Exh.C.W. 4/14 which was confirmed up to the Supreme Court. We are also of the view that the earlier decision of the Acquisition Judge could be made basis for fixing the price as that was approved by the High Court as well as the Supreme Court. However, the following important observation in the said judgment has escaped consideration of the Acquisition Judge in this case:--- ' In the present case, according to Exh. P.W.5/15 to Exh. P.W. 5/17 the land was sold at the rate far more higher than the price claimed by the objectors, therefore, keeping in view the above discussed factual and legal position it is held that the claim of the objectors that they are entitled to receive compensation at the rate of Rs,10 per sq. Foot, is not excessive and the same is held to be market price of the suit land."
' It is thus clear that in that case, the acquisition Judge had come to the conclusion that the rate proved on record per foot was far more higher than Rs,10 sq. Foot but as the petitioner had claimed Rs,10 per sq. Foot therefore, they could not be awarded more than that. However, in the present case, the petitioners have in their objection petition clearly stated: {{URDU TEXT}} Similarly in his statement in Court, Ghulam Siddique petitioner while appearing as OW-4 clearly stated: "We are entitled to Rs,12 to Rs,15 per square foot keeping in view the location of the land". The objectors in this case were entitled to Rs,12 per sq. Foot as they claimed this amount and the Acquisition Judge had come to the conclusion that the price per foot is far more than Rs,10 per sq.
Foot. Even otherwise, in this case the three mutations referred to in the statement of OW-6 and reproduced above almost support the claim of the petitioners of Rs,12 per sq. Foot. By Mutation No,2114 attested on 3-4-1971, an area of seven Marlas was sold for Rs,22,000, the price calculated per foot comes to Rs,11. By Mutation No,1887 sanctioned on 6-2-1970, an area of seven Marlas was sold for Rs,65,000 and the price per foot comes to Rs,34. Similarly, by Mutation No,2003 attested on 1-5-1971, an area of 2 Kanals 4 Marlas was sold for a sum of Rs,80,000. Average price per foot of all these three Mutations comes to Rs,17. Moreover, the objection petition was filed on 3-2-1973 and was decided on 15-9-1991 i,e, after more than 18 years, therefore, keeping in, view on the one hand, the hike in prices and on the other, the inflation and devaluation in currency and the fact that the petitioner would receive this two rupees enhancement after 18 years of the institution of their objection petition, this increase of two rupees is very reasonable. In the earlier judgment, the objectors were found entitled to compound interest at the rate of Rs,8% as at that time that was the prevailing rate of interest. The petitioner is also entitled to the said rate of interest as at the time of the disputed award and at the time of filing of the objection petition in this case that was the prevailing rate of interest.
10. Consequently, while accepting this appeal, we enhance the rate per sq. Foot from Rs,10 to Rs,12 and also allow compound interest at the rate of Rs,8% on the enhanced amount from the date of possession till the date of recovery minus whatever they have already received and as such, the Appellate Court judgment is modified to the said extent. There would be no order costs.