SHAH JEHAN KHAN, J.--- Regular First Appeal No.81 of 1997 Mst. Abida etc. v. Government of N.- W.F.P. And Regular First Appeal No.91 of 1997, Government of N.-W.F.P. Etc. v. Mst. Abida etc. Arising from the same judgment are disposed of by this common judgment.
2. For the extension of Sheikh Maltoon Township Mardan and for the construction of. 200 beds hospital, the Government of N.-W.F.P. And Mardan Development Authority (M.D.A.) Mardan was is need of certain property for which the required notification under section 4 was issued on 13-4- 1989 which was subsequently amended through corrigendum notification, dated 3-2-1990 whereby the area was extended from 545 Kanals, 9 Marlas to 567 Kanals, 3 Marlas and Khasra No.308 was included. The land owners of an area measuring 341 Kanals, 11 Marlas entered into a negotiations with the M.D.A. And an Award bearing No.67/3 was announced on 7-7-1992 whereby the rate of compensation for the land was fixed Rs.90,000. However, the acquisition of land measuring 171 Kanals, 12 Marlas was processed under the Land Acquisition Act, 1894 and in the conclusion of the process Award No.70/3 was announced on 28-10-1993 whereby the rate of compensation for the front portion adjacent to Mardan Nowshera Dual Carriage Road was fixed as Rs.1,10,000 and for the rear portion of the acquired land rate was fixed Rs.90,000 per Kanal.
3. Petitioners being owners recorded in the Revenue Record in Khasra Nos.308, 3119, 323, 329, 328, 330, 332, 336, 348-348, 510/472/311 to 322, 51 1 /472/311 to 322 and 350 to 351 situated in revenue estate Roria Tehsil and District Mardan were aggrieved from the rate of compensation. They preferred an application under section 18 of the Land Acquisition Act for determination of fair rate of compensation through Referee Court. The reference was made to the Referee Court. After getting reply of the contesting parties the Referee Court framed the following issues:--
(1) Whether the objectors have got a cause of action?
(2) Whether objection petition is within time?
(3) Whether the objection petition is incompetent in its present form?
(4) Whether the objectors have received compensation without protest if so its effect?
(5) Whether the respondents have occupied more area and has shown it less in the award if so what is the correct measurement of land acquired and to what effect?
(6) Whether the L.A.C. Has wrongly classified the suit-land and has also under assessed it if so what is the correct classification and market value of the land acquired?
(7) Whether the objectors are entitled to the enhancement of compensation?
(8) Relief.
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 to Rs.8,000 per Maria with 15% compulsory acquisition charges and 6--10 simple interest per annum on the enhanced amount from the date of possession till the date of payment in Referee Court. Feeling dissatisfied with the enhancement made by Referee Court the owners objectors and the acquiring department has tiled these two regular first appeals.
4. At the very outset the learned counsel for respondents. Objected to the maintainability of appeal tiled by acquiring department in view of the judgment reported in WAPDA v. Aurangzeb Khan PLD 1975 Pesh.l, Province of the Punjab v. Naseeruddin 1994 SCMR 2091, Pir Khan v. Military Estate Officer .PLD 1987 SC `485. The learned Advocate-General produced judgment reported in case Military Estate Officer v. Assistant Commissioner-cum-Collector, Quetta and 4 others 1997 CLC 556 wherein a Division Bench of the Quetta High Court has overruled such objection on the strength of judgment delivered by Federal Shariat Court in Shariat Petition No.6 of 1988 which was also upheld in Shariat Appeal No.7 of 1989 in the Shariat Appellate Bench of ,Supreme Court of Pakistan, decided on 18-2-1991. In the said judgment sections 18, 22-A, 50 and 54 of the Land Acquisition Act, 1894 were declared against the Injunctions of Islam and recommended amendments to make the law on the subject more consistent and equitable till 30th September, 1991 as the existing law by then not providing a right of cross-objection, leading evidence for determination of rate of compensation and right of appeal, was found in negation of justice and repugnant to the Injunctions of Islam. It was observed that a party who has to pay money from its funds should have been provided a eight to make reference, to adduce evidence for the purpose of determining the amount of compensation if dissatisfied from the rate of compensation fixed by Land Acquisition Collector and to prefer an appeal if aggrieved from the findings of Referee Court. It was held that if the law should not be amended till 30 September, 1991 the existing law will have no effect after the aforesaid date. The judgment of Federal Shariat Court upheld by Shariat Appellate Bench in the Supreme Court of Pakistan was followed in Muhammad Pervez v. Azizullah Khan PLD 1999 Pesh. 53.
In these circumstances we reject the preliminary objection regarding maintainability of the appeal filed by Acquiring Department.
5. We heard the learned counsel for the parties and perused the record. Learned counsel for landowners/objectors contested the finding of trial Court on Issues Nos.6 and 7 regarding the wrong classification and market value of the acquired land and the entitlement of appellant for the enhanced rate of compensation. It was submitted that the rate of compensation for the acquired land has already been enhanced in R.F.A. No.70 of 1997, decided on 18-4-2000 reported in Abdul Samad Khan and others v. Project Director, Mardan Development Authority 2001 CLC 33 and the learned counsel for the appellants submitted that though the appellants have claimed Rupees four lacs per Kanal in view of the potentiality of the acquired land but the appellants would be satisfied if the rate fixed in the aforesaid judgment is allowed to the appellants.th
6. The private counsel appearing for M.D.A., Mardan submitted that the judgment relied upon by the counsel for objectors is subject-matter of appeal before the august Supreme Court of Pakistan and the acquiring department will argue their case before the Supreme Court of Pakistan and conceded that this Court has to follow its own judgment noted above regarding the rate of compensation.
7. In the aforesaid judgment rate of compensation for certain Khasra numbers falling adjacent to the Mardan-Nowshera Road which includes Khasra No.308 the subject-matter in the instant petition and certain other Khasra numbers lying adjacent to the Dual Carriage Road of Sheikh Maltoon Township was enhanced to Rs.17,000 per Maria and the following observations were made which are reproduced below:-- "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 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 numbers are lying in the rear and lesser in value comparatively. The Khasra numbers 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 numbers 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 numbers 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 numbers in the impugned judgment as Rs.8,000 per Marla merit no interference."
8. In view of the discussion made above we accept Regular First Appeal No.81 of 1997 to the extent of Khasra Nos.308 and 323 in respect whereof the rate of compensation has already been enhanced to Rs.17,000 per Maria and for rest of the Khasra numbers the rate fixed by Referee Court was kept intact. We, therefore, are inclined that the rate of compensation for Khasra Nos.308 and 323 subject-matter of dispute herein is enhanced to Rs.17,000 per Marla with 15% compulsory acquisition charges and 6% interest from the date of taking physical possession till the payment is made in Court as permissible under the law. However, claim of the objectors for enhancement of rate for rest of Khasra numbers is rejected. Appeal No. 81 of 1997 is partly accepted in the above terms and Appeal No.91 of 1997 is dismissed being without any merits. No order-as to costs.