SHAH JEHAN KHAN, J.--- R.F.A. No.70 of 1997 (Abdul Samad etc. v. M.D.A., Mardan) and R.F.A. No.88 of 1997 (M.D.A., Mardan v. Abdul Samad etc.) arising from the same decree and judgment of the Senior Civil Judge, Mardan, dated 29-3-1997 in Reference Case No.37/4 of 1996 and R. F. A. No. 104 of 1997 (Saifur Rehman etc. v. Government of N.-W.F.P.) and R.F.A. No.86 of 1997 (Government of N.- W.F.P. v. Saifur Rehman etc.) arising from the decree and judgment of the Senior Civil Judge, Mardan, dated 29-3-1997 in Reference Case No.34/4 of 1996 both cases respecting the same award No.67/3, dated 7-7-1992 are disposed of by this common judgment.
2. For discussion regarding fixation of rate of compensation for the acquired land record in R.F.A.
No.70 of 1997 is taken first being relating to major portion of the acquired land owned by the objectors jointly.
3. For the extension of Sheikh Maltoon Housing Scheme, Mardan at the instance of Project Director, Mardan Development Authority (hereinafter be called M.D.A.), the District Collector issued a Notification No.383--87/54-HVC, dated 13-4-1989 under section 4 of the Land Acquisition Act, 1884 (hereinafter called Acquisition Act) respecting a total area of 545 Kanals, 9 Marlas situated in Revenue Estate Ruria, Mardan: On 3-2-1990 a corrigendum Notification was issued whereby a part from bringing changes in Khasra Nos. The total area was increased to 567 Kanals, 3 Marlas Notification under section 5 was issued on 17-12-1991.
4. The Project Director, M.D.A. Informed the Land Acquisition Collector vide Letter No.786/MDA, dated 17-12-1991; that an agreement has been arrived at between some of the landowners and acquiring'
Department, in terms whereof rate of compensation for the land under acquisition has been fixed Rs.90,000 per Kanal. Owners of the land bearing Khasra Nos.308, 309, Min, 323 Min, 510/472/311 to 322 Min, 511, 472/311 to 322, 327 Min, 328 Min, 329 Min, 330 Min, 332 Min, 336 Min, 478/347-348 Min, 484/350-351 Min measuring 171 Kanals 12 Marlas out of 567 Kanals 3 Marlas have not consented to the agreement.
5. The Land Acquisition Collector without verifying the genuineness of the agreement from landowners concerned proceeded to pass the disputed Award No.67/3 on 7-7-1992, solely on the basis of agreement. However, the process of compulsory acquisition of land measuring 171 Kanals 12 Marlas noted above was ordered to be continued and Award to that effect would be passed on completion of process.
6. Feeling aggrieved from Award appellants in R.F.A. No.70 of 1997 filed objection petitions under section 18 of the Acquisition Act. The objection petition was entrusted to the Senior Civil Judge, Mardan for disposal. It was alleged in the objection petition as follows:--
(A) That huge chunk of land has been acquired from the petitioners but compensation for lesser area has been awarded .....
(B) That the area acquired is admittedly situated at Mardan-Nowshera Road, is adjacent to the Abadi, amidst of the housing scheme fully developed by the Government and is commercial in nature ....
(C) That the average price per Marla is much higher because the acquired land is hi~hlv potential and under no circumstances the price per Marla is not less than Rs.17 000.
(D) That the possession was taken from the petitioners long ago and hence they are entitled to the 15 % compulsory acquisition charges and 8 % compound interest from the date of possession till the payment of compensation.
7. The objection petition was resisted by the acquiring Department mainly on the ground of alleged agreement between the parties. However, it was conceded that no notice under section 9 was issued to the objectors. It was also admitted that the acquired land is situated on Mardan- Nowshera Road. The Referee Court framed the following issues arising from the pleadings of the parties:--
(1) Whether the petitioners have got a cause of action?
(2) Whether the petitioners have entered into an agreement with the respondents and the price of Rs.90,000 per Kanal including compulsory acquisition charges was fixed of the acquired land, if so, its effect?
(3) Whether the market price of the suit-land is lesser than the awarded compensation?
(4) Whether the petitioners are estopped to sue?
(5) Whether the petitioners have received compensation so the petition is liable to be dismissed?
(6)Whether the plea of excess possession of the petitioners is incorrect and baseless?
(7) What is the market value of the suit-land?
(8) Whether the petitioners are entitled to the decree for enhancement of compensation as prayed for?
(9) Relief? ,
8. Parties were allowed to adduce evidence in support of their respective claims. The objectors produced 4 witnesses including one of the objector and the Acquisition Department produced Fida Hussain, Head Clerk, L.A.C. Cell and Syed Kamal Shah, Assistant Director, M.D.A. And closed their evidence. The trial Court after elaborate discussion on the issues framed enhanced the rate of compensation to Rs.8,000 per Marla alongwith 15 % compulsory acquisition charges and 6 % compound interest for total land actually acquired measuring 267 Kanals and 9 Marlas, vide impugned judgment, dated 29-3-1997 which has been assailed by both the parties through the R.F.As. Noted in the beginning of this judgment. '
9. We heard the learned counsel for the parties with reference to record of the case. Both the parties are mainly aggrieved from the rate of compensation fixed by the Referee Court through the impugned judgment. The petitioners/objectors are claiming Rs.25,000 per Marla while the Acquiring Department and L.A.C. Are praying for restoration of the rate of compensation fixed through Award No.67/3, dated 7-7-1992.
10. Muhammad Johar, A.O.K., Mardan was produced as P.W.1 who produced copy of various sale Mutations Exh.P.W.l/1 to Exh.P.W.l/12 in--between 11-10-1986 to 9-1-1990. The sale price in all of them are different. Excluding the sale mutations whereby land has been sold by petitioners which are quite high pedestal, a land measuring 2 Kanals, 10 Marlas of land was sold through sale Mutation Exh.P.W.1/10 at the rate of Rs.15,000 per Marla on 22-8-1987 (two years before notification under section 4 of the Acquisition Act).
11. Zar A.I, Assistant Record Keeper, M.C., Mardan was examined as P.W.2. He produced copy of the minutes of meeting, dated 22-12-1991 as Exh.P.W.2/1 whereby the Municipal Corporation Authorities and Revenue Authority participated in the meeting and different rates of different areas within Municipal limits were fixed. The relevant is in respect of lands situated in village Ruria and Bagh-e- Aram (Nowshera Road). The minimum rate for lands in Ruria was fixed Rs.8,000 per Marla (which rate was also fixed through the impugned judgment) and that of main Mardan-Nowshera Road Rs.17,000 per Marla. The witness was not subjected to cross-examination though opportunity given and, thus, the rate fixed by the M.C., Mardan through Exh.P.W.2/1 was admitted correct.
12. Khalid Khan, Patwari, Halqa Ruria appeared as P.W.3 who produced one year average for the period 3-2-1989 to 3-2-1990 (one year prior to corrigendum Notification) as Exh.P.W.3/1 showing an average of Rs.6,699.69 per Marla. He also produced an Aks Exh.P.W.3/2 showing the Kh. Nos. And location of acquired land and the adjacent lands. He also produced copy of sale mutation attested on 8-12-1992. Exh.P.W.3/3 whereby 50 Kanals of land was acquired for a sum of Rs.60,00,000 (Rs.
6,000 per Marla) for the construction of Elementary College. The site acquired for Elementary College in the same vicinity and acquired land was highlighted through Exh.P.W.3/4. In the cross- examination it was clarified that Naeem Marbal Factory and Swabi Marbal Factory and Khasra Nos.306, 311 and 312 are the frontal properties of acquired land and the rest of the property is in a compact block in the said Khasra Nos.
13. Abdul Samad Khan one of the objectors/petitioners appeared as P.W.4. In his statement he supported the averments made in objection petition. He placed on record a copy of joint statement of parties in Civil Suit No.80/1 of 1983 and order of the Court in terms of compromise as Exh.P.W.4/1. It was agreed by the M.D.A. Through its Deputy Director in the year 1983 that - if land of the objectors/petitioners is needed for acquisition, shall be paid at the rate of Rs.10,000 per Marla giving the description of acquired land it was stated that it . Is situated on the main Mardan- Nowshera Dual Carriage Road and the rate of such land was fixed Rs.17,000 as minimum in Exh.P.W.3/1. The acquired land is adjacent to Sheikh Maltoon Housing Scheme on the same road and Grid Station and WAPDA Colony on its other side. The acquired land is commercial in nature and highly potential. The M.D.A. Offer the land of Sheikh Maltoon Housing Scheme an area of 1/2 Marla for 2-1/2 lacs for the construction of shops. In his Court statement he strongly denied any private negotiations by petitioners and signing any agreement to which he was confronted as Exh.P.W.4/R-1: The signatures and the fathers' name of petitioners/ objectors and recorded in the agreement were not correct.
14. Fida Hussain R.W.1 produced copy of disputed agreement as Exh.R.W.1/1, Notification under section 4 Exh.R.W.l/2, Corrigendum Notification Exh.R.W.I/3, Notification under section 5 Exh.R.W.l/4, one year average from 20-8-1988 to 20-8-1989 indicating an average of Rs.2,867 per Marla as Exh.R.W.l/5, one year average for the period 11-1-1989 to 11-1-1990. The average comes to Rs.6,716 as Exh.R.W.I/6. He also produced Goshwara of the various Khasra Nos. Acquired as Exh.R.W.l/7. Copy of documents Exh.R.W.I/8 to Exh.R.W.l/23 relates to assessment of price of superstructure on the acquired land belonging to different owners. Exh.R.W.l/24 is photo copy of Aks already placed on record as Exh.P.W.3/4. Copy of Award is Exh.R.W.I/25. Copy of the acquittance roll is Exh.R.W.l/26. He admits that neither compulsory acquisition charges nor 6 % compound interest were paid to the landowners as the land was not compulsory acquired but purchased through private negotiations.
The possession was taken from petitioners/objectors on 30-9-1992 through Exh.R.W.l/1. Payment was made through acquittance roll in July, 1992 which was received under protest. The receipt of payment (3 sheets) is Exh.R.W.l/P-2. The witness admitted that the disputed agreement was not signed in his presence and the rate of compensation was fixed solely on the basis of agreement Exh.R.W.l/1. The witness deposed that officials/functionaries of M.D.A. Four in number officials of Acquiring Department appearing on the last page of disputed agreement were witnesses of the agreement deed. The witness with reference to disputed agreement stated that petitioners/objectors Abdul Samad Khan, Abdul Rashid Khan, Abdul Wahid Khan son of Muhammad Sharif, Farid Khan, Sheryar Khan and Manzoor Khan sons of Ghulam Rasool were party to the agreement as landowners. (The father name of Abdul Samad Khan, Abdul Rashid Khan and Abdul Wahid Khan is Abdul Hamid Khan while the father name of Muhammad Farid Khan, Shehyar Khan and Manzoor Khan is Muhammad Sarwar Khan). However, admitted that petitioners with their correct parentage are not party to the agreement. In his deposition the witness. Admitted that the acquired land is situated on Main Mardan-- Nowshera Road.
15. Said Kamal Shah R.W.2 is the Assistant Director, M.D.A. Has stated that the acquired land was a' waterlogged and saline area and acquired on the owners' request, while the rate of compensation was fixed through private negotiations on the intervention of the Land Acquisition Collector. The acquired land is on the back of Khasra No.308 and is not the front line of the road. Further stated that though the land was of lesser value but to avoid litigation higher rate of .Rs.90,000 per Kanal was fixed through an agreement signed by landowners and, marginal witnesses. Also deposed that landowners have received the compensation without protest. The acquired land was partly granted to Mardan Medical Complex and partly allotted to private persons as housing scheme (2nd phase). In his cross-examination he admits that Sheikh Maltoon Housing Scheme and acquired land are situated on the dual carriage main Mardan Road and is within the recently extended limits of Municipal Corporation, Mardan. He admitted the following boundaries of acquired land:------ to WestDual Carriage, Mardan-Nowshera Road. to EastAbadi Village Daman. to NorthBungalows of petitioners/objectors, WAPDA Grid Station and Grain Godowns. to SouthSheikh Maltoon Town.
The witness disclosed that he has not participated in the aforesaid private negotiations.
16. Reverting back to the main controversy regarding agreement of the parties copy Exh.R.W.I/1. This agreement deed reveals that it was allegedly executed between Project Director on the one hand and landowners of Muza Roria oh the other hand. The deed comprised of 10 pages, on the first and frontal page there are terms of the agreement and signature of the Project Director with stamp in the margin and the signatures/thumb-impressions of landowners start from overleaf of frontal and 2nd page of the deed up to the 9th page (frontal side of last paper). Up to page 8 at least 195 landowners have put their respective signatures/thumb-impressions. The alleged signatures of petitioners/objectors are appearing on page 9, the last page of the agreement deed. Those whose signatures/thumb-impressions are appearing on pages 2 to 8 have neither filed objection petitions nor parties before us. The two sheets in the beginning are stamp papers of Rs.5 each while the remaining 3 sheets are judicial papers. There is neither stamp vendor's No. Overleaf the stamp paper nor there is any mention that who purchased it. Bilateral agreement is always signed at the bottom of the deed by both 'the parties, but strange enough the signature of Project Director of the Acquiring Department is appearing exclusively on .The frontal page carrying terms of agreement and that too in the margin. It appears that the deed was constructed by Project Director of the Acquiring Department and then signatures/thumb-impressions of individual owners were procured. It is evident from the deed that it started on 22-4-1990 and concluding on 12-8-1991.
The possibility that last page of the deed was subsequently, and mala fidely added could not be ruled out. The mala fide on the part of Acquiring Department is also evident from the fact that fathers' names of six major male members of petitioners/objectors have wrongly been recorded.
Even if the alleged signatures of petitioners are admitted correct (though not legally proved) cannot be used against petitioner Nos.4 (female) and 9 to 11 (minors). Though the genuineness of the agreement was in issue the respondent/Acquiring Department did not bother to produce the scribe of the deed or any member of negotiating team fromM. D. A. The two witness of participation in private bilateral negotiations. None of the landowners who allegedly signed/thumb-impressed the deed or the Project Director of M.D.A. Were produced to prove the contents of deed Exh.P.W.1/1.
Thus, on factual side it is concluded that no agreement was signed between the parties herein regarding fixation of rate of compensation. The finding of the Referee Court on Issue No.2 against the respondent/Acquiring Department is upheld.
17. From the facts and circumstances brought on record, it reveals that compulsory acquisition process was initiated by respondent No.3 issuing Notification under section 4 of the Acquisition Act which was followed by corrigendum Notification and Notification under section 5-A inviting claims from interested persons and after the conclusion of process the impugned award was issued under section 11 of the Act. It was observed in AIR 1946 PC 75 that no agreement of parties could be allowed to override the provisions contained in section 18 of the Acquisition Act. Yet in another reported case AIR (33) 1946 PC 75 it was observed that the Collector or Referee Court shall give his own assessm ent/judgment without being influenced by the agreement of the parties. The Referee Court in his impugned judgment has not acted upon the agreement, copy Exh.R.W.l/1 and apart from pin-pointing the factual flaws in agreement, the following observation was made:-- "If the land was acquired through private negotiation, why the respondents resorted to compulsory acquisition proceedings and issued Notification under sections 4, 5, 6 and the respondents also invoked the emergent provisions of Land Acquisition Act, section- 17 And possession was taken from the petitioners on 29-9-1992 as is evident from certificate copy Exh.R.W.I/P-1. The respondents also announced the award under section 11 and prepared an acquintance roll Exh.R.W.l/26 hence from the narration of admitted facts, the land has been acquired under the compulsory provisions of Land Acquisition Act, 1894 and not through private negotiations as alleged by the respondents."
This portion of the impugned judgment was neither objected at the bar nor the record justify interference in the said findings.
18. After holding that there was no private negotiations respecting the sale and rate of compensation between the petitioners and the Acquiring Department Report is to be made to section 23 for fixation of rate of compensation. The August Supreme Court has drawn the principles for fixation of compensation in a number of reported cases.
19. In this respect the leading judgment N. W .F. P through Collector v. Haji A.I Asghar Khan and others. 1985 SCM R 767 can be relied upon wherein the following guidelines were drawn:-- "It is an admitted position that the average market value of the sales in village Mirpur, during the relevant period, works out at Rs.23,000 per Kanal. We, therefore, think that even on the criteria laid down by the learned Senior Civil Judge and upheld by the High Court for working out the rate at which compensation should be allowed and also taking into account the fact that the notification of the acquisition was issued in 1978 and the award made some two years later and there was an' upward trend in the prices of the land during the period, the value of the land for purposes of payment of compensation should, in our opinion, be fixed at Rs.25,000 per Kanal. We would, therefore, award compensation at tile rate of Rs.25,000 per Kanal for the land acquired in this case."
20. In Fazalur Rahman and others v. General Manager, S.I.D.B. And another 1986 SCMR 158 for determination of the market value the august Supreme Court has laid down the following dictum:- - "There are other factors which have to be taken into consideration e.g. The land is not to be valued merely by reference to the use to which it is being put at the tune at which its value has to be determined, but also by reference to the uses to which it is reasonably capable of being put in the future; and market value is the potential value of the property at the time of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time. "
21. In Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 32 their Lordships of the Supreme Court observed as follows:-- "It is, therefore, evident that the factors for determination of the market value of the land proposed to be acquired are not restricted only to the time of issuance of the notification under section 4 of the Land Acquisition Act or any period prior to it, but can also relate to the period in future (i.e. To period after the issuance of notification under section 4 of the Act). It is for this reason that the 'potential value' of the land i.e. The use to which it can be put in future, has in a large number of cases been held to be a relevant factor. As such the fact that long period has elapsed between the issuance of notification under section 4 of the Act and the announcement of the award coupled with the fact that during that period the prices of land or the property in question have arisen sharply, is a factor which ought to and should have been taken into account while determining the value of the land in dispute for the purpose of compensating the owner. This view is supported by the observation of this Court in Sub. Haider Zaman and others v. Government N.-W.F.P. And others 1987 SCM R 465. "
22. In the instant case it is an admitted fact that the acquired land for the extension of Sheikh Maltoon Housing Scheme was in a chunk/compact block and situated on main Mardan-Nowshera Road and across the road on opposite side there is a house of Nawabzada Abdul Ghafoor Khan Hoti, the Ex-Governor, N.-W.F.P. The Sheikh Maltoon Housing Scheme first phase is lying adjacent towards the south, on the north adjacent are the bungalows of the petitioners/objectors, WAPDA Grid Station and grain godown, towards the East there was Abadi of village Daman which was demolished in the instant acquisition process. It is also an admitted fact that in frontal part of the acquired land on main Mardan-Nowshera Road, There were Marble Factories and, thus, it was suitable for residential as well as commercial purposes and could not be valued as agriculture/barren land. The statement of R. W.2 stating that the acquired land is a water logg and saline area and barren is of no importance with reference to its location and use.
23. In Sadiq Niaz Rizvi v. The Collector, District Lasbella and another PLD 1993 SC 80 their Lordships of the 'Supreme Court laid down the following principles for fixation of rate of compensation with reference to section 23 of the Acquisition Act which reads as follows:--
(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 well near the land, makes 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 normally to be taken as existing on the date of publication of notification under section 4(1) of the Act but for determining the same, the prices 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."
24. The law relating to fixation of rate of compensation with reference to sections 4, 5, 5-A, 6, 16 and 23 of the Acquisition Act was thoroughly considered by a Larger Bench to bring the same in conformity with -the Injunction of Islam reported in PLD 1992 FSC 398 and the following conclusion was drawn: "In the light of the above on the issue of fixation it may be concluded that the basic and fundamental date for fixation of the compensation for land acquisition in the public interest, is the market value on the date of actual acquisition of land. A notification issued under section 4 only expresses an intention of the Government that it may or may not acquire the land. Furthermore, section 4 of the Act confers certain powers on the Government to enter on the land and survey which to some extent resembles the concept of Khiyar Ruyat the option of sight by the intended purchaser of the thing intended to be purchased, which may, perhaps be applicable in the matter of acquisition of land by the Government , or other Authority. This cannot be said to be the date of actual acquisition, which is further denoted by ensuing provisions of the Act. That is to say, section 5 makes a provision, for making claim by the owner, for damaging the property during survey etc. By virtue of section 4. Section 5-A provides for filing objections against the desired acquisition of the land, and section 6 provides for disposal of those objections, one way or the other. If the objections are rejected further proceedings of acquisition are taken up which include the awarding of compensation, so much so that section 16 of the Act provides for taking possession of the land.
We are, therefore, of the view that the date of the issue of the notification under section 4 is not crucial date but it is the date of actual acquisition which follows the step taken in the matter of acquisition after disposal of objections under section 6 of the Act, which is required to be substituted in section 23(1) of the Act."
25. The legal provisions as envisaged in sections 16 and 23(1) of the Acquisition Act was declared against the Injunction of Islam and the Government was directed to amend the said sections of law within the period of 6 months in the light of observation made in the judgment failing which the said provisions were ordered to be taken to have been amended on the expiry of 6 months and the existing, provisions shall seize to operate with effect from 1st November, 1992.
26. In the instant case P.W.3 has produced a map of the acquired land as Exh.P.W.3/2. The witness was though subjected to cross-examination but the map Exh.P.W.3/2 was not seriously objected and the only question put to the witness was that the same does not contain various Khasra Nos.
The location of the acquired land highlighted in Exh.P.W.3/2 has not been disputed. Exh.P.W.3/2 is indicative of the fact that towards the north is the 6 bungalows of the petitioners and vacant commercial plots; to the south is dual carriage road of Sheikh Maltoon Housing Scheme; towards the East is the vacant plots of Sheikh Maltoon Housing Scheme and some built-up houses of Sheikh Maltoon Housing Scheme. Towards the West is the dual carriage Nowshera-Mardan G.T. Road across whereof is the Bungalow of Nawabzada Abdul Ghafoor Khan, ex-Governor, These boundaries were also admitted by the R.W.2 appearing on behalf of the Acquiring Department in his statement before the Court. From the map Exh.P.W.3/2 no distinction could be drawn in property acquired from the appellants/objectors and the land comprised in Khasra No.308 which is not the subject-matter of the instant appeals. Though R.W.2 has said in his statement before the Court that the land acquired from the appellants/objecto4 is not on the front line of the road but is situated on the back of Khasra No.308 but this deposition will not adversely affect the potentiality of the land acquired from the appellants/ objectors. In the Aks Shajra Kistwar Exh.P.E.3/4 it is evident that Khasra No.308 which includes Khasra No.309 in its centre is lying adjacent to the dual Carriage Mardan-Nowshera G.T. Road. Likewise Khasra Nos.303 to 307 on the North and 311 to 315 on the South of Khasra No.308 are also of the same use and character. Khasra Nos.316, 318 to 324 owned by the objectors are adjacent to Dual Carriage Road of Sh. Maltoon Housing Scheme as shown in Aks Exh.P.W.3/4, and not lesser in value than Khasra No.308, while rest of the acquired Khasra Nos.
Are lying in the area and lesser in value comparatively. The Khasra Nos. Mentioned above either adjacent to Dual Carriage Mardan-Nowshera Road or adjacent to the Dual Carriage Road of Sheikh Maltoon Housing Scheme in the south are equal in potentiality and could be utilized equally as commercial market due to the adjacent Sheikh Maltoon Housing Scheme. In these undisputed facts we feel no hesitation in holding that the rate of compensation for the aforesaid Khasra Nos.
Was wrongly fixed on the basis of rate fixed for Roria Mohal after relying on Exh.P.W.2/1 and the fair and justifiable rate for these Khasra Nos. Should be fixed at Rs.17,000 per Marla as determined for land lying on Mardan-Nowshera Road through Exh.P.W.2/1. The rate fixed for the remaining Khasra Nos. In the impugned judgment as Rs.8,000 per Marla merit no interference.
27. In view of the discussion made above R.F.A. No.70 of 1997 is partly accepted in respect of Khasra Nos.300 to 307, 309, 311 and 312 to 324 and the rate of compensation of the land comprised in these Khasra Nos. Is enhanced and fixed at Rs.17,000 per Marla and the impugned decree and judgment, dated 29-3-1997 of the Senior Civil Judge, Mardan in Reference Case No.37/4 of 1996 and Award No.67/3, dated 7-7-1992 is modified to that effect. Rest of the impugned judgment is upheld.
28. The appellants/objectors in R. F. A. No. 104 of 1997 (Saifur Rehman etc. v. Government of N.- W.F.P.) has claimed that their predecessor was the owner in Khasra Nos. 333, 335, 348 and 347 measuring 25 Kanals and 5 Marlas through registered sale-deed, dated 8-10-1971. Further alleged that their predecessor was recorded owner in the. Revenue Record of land measuring 49 Kanals, 6 Marlas with reference to Mutations Nos.302 attested on 18-12-1973 which include the aforesaid purchased land through registered sale-deed. The entire land owned by them measuring 49 Kanals, 6 Marlas was subsequently, alienated in their favour by their predecessor through Mutation No. 1032. Also alleged that the Abadi Deh measuring 27 Kanals, 7 Marlas was also owned by them and constructed the superstructure in the shape of houses wherein they were residing.
29. As regards the agreement regarding fixation of the rate of compensation for the acquired land it was stated that they were not party to the said agreement and the rate of compensation fixed in the Award was objected to on the basis of one year average but no proper and justifiable rate was suggested or claimed in their objection petitions.
30. The appellants/objectors seriously objected on the assessment of compensation for the superstructure owned by them on the acquired land and the trees planted by them on the acquired land.
31. The controversy between the parties was formulated in the following issues:--
(1) Whether the objectors have got a cause of action?
(2) Whether the objectors are estopped to bring the objection petition?
(3) Whether the compensation for land and Abadi has been determined with consent/mutual agreement of parties, if so, its effect? ;
(4) Whether the objectors received compensation without protest?
(5) Whether the objectors are exclusive owners of the land in dispute but the revenue staff has wrongly shown other people as co-sharers therein?
(6) Whether the Collector wrongly determined the compensation of the suit-land and superstructure, if any, thereon if so, what should be the correct compensation for the land acquired?
(7) Whether the objectors are entitled to the enhancement of the compensation alongwith other charges?
(8) Relief.
32. The appellants/objectors produced five witnesses at all which include Amir Rehman appellant who appeared as attorney for appellants Nos. l to 3. In his statement before the Court he deposed about the payment of compensation to the appellants for lesser area than the actual acquired.
Also deposed for the enhancement of rate of compensation for superstructure on the basis of earlier award drawn in 1987 wherein Rs.30 per square foot for Kacha Abadi was allowed to them while in the instant case Rs.8 per square foot for Kacha Abadi and Rs.25 per square foot for Pukka Abadi has been awarded through the disputed award. He also claimed compensation for the crop and standing trees harvested through the acquisition process but did not claim any enhanced rate for compensation of the acquired land owned by them. Sher Rehman C.W.5 who appeared as attorney for certain appellants/objectors also deposed regarding the rate of compensation for superstructure and the crop and trees affected through the acquisition process but said nothing about the rate of compensation. Hazrat Khan O.W.6 also deposed in respect of compensation for the superstructure, crop and trees as well as measurement of the acquired land. However, in the memorandum of appeal, the appellants have claimed Rs.12,000 per Marla at the rate of compensation for 'the acquired land but the same has got no support of the evidence on record.
33. From the aforesaid narration it transpired that the appellants/objectors in the instant R.F.A.
Were aggrieved mainly on the rate of compensation assessed for the superstructure as well as the crop and trees on the acquired land and the aforementioned compensation for the acquired land owned by them. The trial Court after evaluating the evidence adduced by the parties fixed the rate of compensation for the acquired land at Rs.8,000 per Marla after taking into consideration the location of the acquired land. The rate of compensation for the superstructure was enhanced to Rs.30 per square foot for Kacha Abadi and Rs.100 per square foot for Pukka Abadi alongwith 50% compulsory charges and 6% simple interest per annum on the enhanced amount from the date of possession till the date of payment. Regarding the apportionment of compensation for land it was left open for decision in the aforementioned Case No.21/4 (Government v. Abdul Samad) pending before the Land Acquisition Collector. The claim regarding trees and crop allegedly affected in the acquisition process was neither considered nor granted.
34. The trial Court appointed a Commission for the assessment of rate of compensation for the trees owned by the appellants/objectors. The Commission after visiting the spot, examined the parties and the Patwari Halqa submitted its report on 2-5-1993 whereby Ghafoor Rehman appellant was found entitled for the compensation of trees amounting to Rs.12,460, Ibrahim appellant for Rs.14,490, Saida Khan appellant son of Sher A.I for Rs.8,850, Sher Afzal appellant for Rs.250, Hazrat Khan appellant for Rs.100, Saida Khan son of Sheradin for Rs.100 and Ghafoor Rehman for Rs.390. Though objections were filed on the report of the Commission by both the parties and the Local Commissioner was examined in Court which was subjected to cross- examination by both the parties on 21-12-1993 but astonishingly the said report of the Commissioner has neither been considered nor rejected in the impugned decree and judgment.
The learned counsel for M.D.A., Mardan did not seriously object to the said report of the commission during the course of arguments. In this view of the matter the objectors are found entitled for the said compensation determined by the Local Commissioner.
35. The objection regarding the measurement of the land has rightly been dealt by the trial Court to the effect that the same would be determined in the aforementioned Case No.21/4 (Government v. Abdul Samad) we do not want to interfere in the said finding.
36. Resultantly, we find the impugned decree and judgment in this appeal merit interference of this Court qua the cost of trees determined by the. Local Commissioner with no other relief claimed. As regards R.F.A. No. 104 of 1997 the impugned decree and judgment of the trial Court of Senior Civil Judge, Mardan, dated 29-3-1997 in Civil Suit No.34/4 of 1996 is modified `and the appellants are also granted decree for compensation of trees as determined in the report of Local Commissioner, dated 2-5-1993 as explained in Para.34 above. Rest of the impugned decree and judgment shall remain intact. The impugned Award No.67/3, dated 7-7-1992 is also modified in the above terms.
37. R.F.A. No.70 of 1997 (Abdul Samad etc. v. M.D.A., Mardan) and R. F. A. No. 104 of 1997 (Saifur Rehman etc. v. Government of N.-W. F. P.) are partly allowed in the terms mentioned in paras. 27 and 36 respectively while R.F.A. No.86-of 1997 (Government of N.-W.F.P. v. Saifur Rehman etc.) and R.F.A. No.88 of 1997 (Government of N.-W.F.P. v. Abdul Samad Khan etc.) are dismissed with no order as to costs.