' SHAH JEHAN KHAN YOUSAFZAI, J.---R.F.A. No,82 of 1997 (Ahmad Khan and others v. Government of N.-W.F.P. And others) and R.F.A. No,92 of 1997 (Government of N.-W.F.P. And others v. Ahmad Khan and others) are arising from the same judgment respecting Award No,70/3, dated 28-10-1993, therefore, disposed of by this single judgment.
2. For the extention of Sheikh Maltoon Township, Mardan and establishment of 200 Bed Hospital the M.D.A. Was in need of acquiring property in revenue estate of Rorya Tehsil and District Mardan. On 13-4-1989 notification under section 4 of the Land Acquisition Act was issued for a land measuring 545 Kanals, 9 Marlas. Subsequently, a corregendum notification was issued on 3-2-1990 whereby the area for acquisition was increased to 567 Kanals, 3 Marlas including Khasra No,308 measuring 163 Kanals, 7 Marlas.
' The land owners of various Khasra numbers allegedly entered into an agreement with M.D.A. In respect of land measuring 341 Kanals, 11 Marlas and an award to that effect bearing No, 67/3 was announced on 7-7-1992 and the rate of compensation for the acquired land was fixed Rs,90,000 per Kanal. For the remaining land measuring 171 Kanals, 12 Marlas after issuing the required notice and completion of legal formalities Award No,70/3 subject-matter of the instant litigation was issued on 28-10-1993 whereby the rate of compensation for the land acquired was fixed Rs,1,10,000 per Katlal for the front portion of Khasra Number 308 measuring 25 Kanals and for rest of the land in the rear the rate of compensation was fixed as Rs,90,000 per Kanal. The appellants had some constructed area on the acquired land for which a total compensation for substructure was fixed Rs,13,I5,785.78 including 15% compulsory acquisition charges and 8% interest permissible under the law. The effectee owners feeling dissatisfied with the rate of compensation for land as well as superstructure filed an Objection Petition under section 18 which was referred to Senior Civil Judge referee Court as reference No,81/4 of 1996 for determination of fair rate of compensation.
3. The referee Court after getting the reply flamed the following issues:---
(1) Whether the objectors have got a cause of action?
(2) Whether the objection petition is competent in its present form?
(3) Whether objection petition is within time?
(4) Whether the objectors received compensation with protest if so its effect?
(5) Whether there was any abadi on the acquired land, if so, whether the compensation awarded by the Collector is wrong and inadequate?
(6) Whether the Collector has wrongly classified and under assessed the suit land, if so what is the correct classification and market value of the land acquired?
(7)Whether the objectors have sustained any damages at the instance of respondents, if so to what extent and effect?
(8)Whether the objectors are entitled to the enhancement of compensation as prayed for?
(9)Relief .
4. Both the parties adduced their evidence as they wished to produce and in the conclusion of the trial the referee Court enhanced the rate of compensation for the acquired land to Rs,8.000 per Marla and the rate of compensation for superstructure was enhanced to Rs,43,48,810 with 15% compulsory acquisition charges and 6% simple interest per annum from the date of taking possession till the payment by acquiring Department. Still feeling aggrieved the effectee owners/objectors have filed R.F.A. No,82 of 1997 and the Land Acquiring Department (M.D.A.) and the Government, of N.-W.F.P. Being aggrieved from the enhancement made through impugned judgment have filed R.F A. No,92 of 1997.
5. As regards the rate of compensation for the acquired land, it was stated at the bar that the rate of compensation respecting adjacent Khasra number through award No,67/3, dated 7-7-1992, this Court has further enhanced the compensation to Rs,17,000 per Marla in R.F.A. No,70 of 1997, decided on 18-4-2000 and reported in (2001 CLC 33), which is subject-matter of appeal before the Supreme Court of Pakistan. In view of the aforesaid judgment, no arguments were addressed and the learned counsel for the appellant expressed his satisfaction on the rate fixed in the aforesaid judgment.
6. Undisputedly, Khasra No,308 and the land subject-matter of R.F.A. No,70 of 1997, decided through the judgment, noted above are one chunk of land and this Court while enhancing the rate of compensation for the acquired land observed as follows:--- "In the Aks Shajara Kistwar Exh.P.W. 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 308 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 Daul Carriage Road of Sh. Mattoon Housing Scheme as shown in Aks Exh.P.W. 314 and not lessor in value than Khasra No,308 while rest of the acquired Khasra Nos. Are lying in the rear 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 utilised 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 p.m. 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 Rs,8,000 p.m. Merit no interference."
' As this Court has already enhanced the rate of compensation for the adjacent land having the same location and potentiality we also enhance the rate of compensation for land acquired through Award No, 70/3, dated 28-10-1992 to Rs,17,000 per Marla.
7. The learned counsel for the parties addressed arguments on the findings of the referee Court respecting Issue No,5, Counsel for objectors/Appellants made a reference to the statement of P.W.
3 and qualification architect who has prepared the estimate cost of superstructure as Exh.P.W.3/1 amounting to Rs,1,30,000 and surmised that the referee Court has disbelieved the statement of O.W. 3 without any reasons. On the other hand, learned private counsel for the acquiring Department supported the rate of compensation fixed in the award and submitted that report of the Local Commission in a separate suit namely, Jamshed Ali, Advocate, who appeared as C.V. 2 cannot be relied upon in the instant proceedings for the enhancement of rate of compensation for the built-up property.
8. O.W.3 private architect was produced as witness of the objector. He stated in his Court statement that Ahmad Khan one of the objectors contanced him to work out the cost of superstructure owned by him upon the acquired land. He allegedly visited the spot in second week of January, 1991 and prepared his report as Exh.O.W. 3/1. He has admitted that Exh.O.W. 3/1 was prepared in his office and has also admitted that the mosque mentioned at Serial No,1 of his report Exh.O.W.3/1 of estimated value of Rs,5,67,900 was still intact and expressed his ignorance that whether the same has been acquired or not. He has admitted that being a private architect he worked for public on payment. In his deposition he has not deposed that any representative of the acquiring department was present at the time of hit visit to the site or preparation of Exh.O.W. 3/1 prepared in 1991 much later than notification under section 4 in 1989. The assessment drawn by O.W.3 was not relied upon.
9. Mr. Jamashed Ali, Advocate also appeared as witness of the objectors who was examined as O.W.2. He deposed that he was appointed as Local Commissioner for determination of the nature and extent of construction on the suit land in Civil Suit No,30/1 of 1992, (Sultan Begum v.
Muhammad Azam Khan). He inspected the spot in presence of parties and prepared his report Exh.O.W.2/1, a site plan Exh.O.W.2/2 and the details of measurement in Exh.O.W.2/3. The construction was made by predecessor of objectors herein and he assessed the cost of construction as Rs,43,48,810. Though he was subjected to cross-examine but his deposition respecting the assessm ent of cost of superstructure was neither seriously cross-examined, nor shattered except that he is not an engineer by profession but clarified that he has got sufficient experience in the field of construction. The report of O.W.2 was acted upon by the referee Court for enhancement of compensation for the superstructure and the objectors cannot be allowed to deviate from their own evidence. O.W.2 was a disinterested person having no against either of the parties and the report Exh.O.W.2/1 was prepared and submitted at the time when the acquisition process had not yet started.
10. In rebuttal, the acquiring department has produced Fida Hussain Head Clerk as R.W.1 who stated in his statement before the Court that the cost of construction owned by objectors were assessed through Assessm ent Committee Exh.R.W.1/13 prepared by S.D.O. Building Mardan and the Assistant.
Director M.D.A. The Exh.R.W. 1/13 and the objectors were also granted 15% compulsory acquisition charges and 8% interest in addition to the estimated cost. Mian Aqil Shah was produced as R.W.2 who stated that during 1992-93 he was serving as S.D.O. Education Project Sub-Division Mardan. On the request of M.D.A. For assessm ent of the cost of superstructure in accordance with the prevailing rates of Government Department, after holding a meeting with the M.D.A. Authorities they jointly visited the site and prepared the estimate placed on file. The witness denied preparation of site plan/estimate, himself being the job of M.D.A. Which was carried in his absence and he made the same basis for his report Exh.R.W. 1/13. He has based the Government rates for assessment through Exh.R.W.1/13. The objectors were not asked to produce any oral or documentary evidence regarding the cost of superstructure.
12. Said Kamal A.D. M.D.A. Mardan was produced as R.W. 3 who has supported R.W. 2, and added as added as follows:--- "I have not estimated the building rates but that is done by the R.W. 2, only. It is correct that I am not in possession of that record which is in possession of LAC. The site in dispute is adjacent to M.D.A.
Area. The value of electrical and mechanical dismental costs were not taken out by us because we were not concerned with that and we were only estimate the superstructure of the building and the foundation of the machinery. As I was on medical leave for 3/4 months, therefore, I did not inspect the spot."
The report of Local Commission Exh.O.W.2/1 has rightly been relied upon by the referee Court and we see no reason to interfere in the rate of compensation fixed by referee Court for the superstructure owned by objectors and demolished by the respondent to get the vacant possession of the site for the proposed scheme of extention of Sheikh Maltoon Township and construction of 200 Beds Hospital. The referee Court has elaborately discussed Issues Nos.5 and 7 which need no interference.
' In view of the discussion made above. R.F.A. No,92 of 1997 is dismissed with no order as to costs and R.F.A No,82 of 1997 is partially accepted and the findings of referee Court on Issue No,6, are modified to the effect that the objectors/appellants are held entitled to receive compensation in the acquired land at the rate of Rs,17,000 per marla and thus, Appeal No,82 of 1997 is partially accepted in the above terms. Rest of the findings of the referee Court No order as to costs.