' SHAH JEHAN KHAN, J---Regular First Appeal No,99 of 1997 (Wali Muhammad v. Government of N.- W.F.P. , and others) and Regular First Appeal No,90 of 1997 (Government of N.W.F.P. And others v.
Wali Muhammad Khan and others) are arising from the same judgment, therefore, disposed of by this single judgment.
2. For the extension of Sheikh Maltoon Township, Mardan and establishment of 200 beds hospital, the Government of N.-W.F.P., was in need of acquisition of certain property. Notification, under section 4 for acquisition of a total land measuring 545 Kanals and 9 Marlas was issued on 13-4- 1989. The notification was amended through a corrigendum notification issued on 3-2-1990 whereby the area was enhanced to 567 Kanlas, 3 Marlas and Khasra No,308 subject-matter herein was added. As area of 341 Kanals, 11 Marlas was acquired through Award No,68/3, dated 7-7-1992 on the basis of negotiations and for the remaining land under acquisition measuring 171 Kanals, 12 Marlas the disputed award No,70/3 was announced on 28-10-1993.
3. The appellant, Wali was running a Marble Factory, namely, Naeem Marble Factory constructed at Khasra No,308 (apart of the land under requisition) was not, satisfied with the compensation awarded to him for the superstructure. He submitted an objection petition under section 18 which was referred to Senior Civil Judge, Mardan as Reference Case No,21/4 of 1996 for determination of rate of compensation of the superstructure owned by objector. After procuring attendance of the parties and receiving pleading of the parties, the following issues were framed.
(1) Whether the objector has got a cause of action?
(2) Whether the objection petition is within time?
(3) Whether the objector received the compensation without protest, if so, its effect?
(4) Whether the project was running a Marble Factory known as Naeem Marble Factory on the land acquired?
(5) Whether the respondents during acquisition proceedings removed Marble Factory of objector and did not pay his adequate/reasonable compensation for the superstructure if so, what is the correct cost for the damage sustained by the objector?
(6) Whether the objector is entitled to enhancement of compensation?
(7) Relief.
4. Hamayun Huma. Chief Executive National Consulting Engineer (Registered) was examined as O.W.1. He stated that after consulting by Wali Muhammad objector for valuation of his Marble Factory be inspected the factory in running condition and after making an assessment of the valuation of the superstructure of the factory, he issued certified copy Exh.O.W.1/1, determining total cost of building as Rs . 5,33,400.
5. Roohul Amin Khan, Assistant Director, MDA, Mardan was examined as O.W.2. In his statement, he stated that on the direction of Project Director for phase 3 Sheikh Maltoon Extension Project, he conducted as servey of the land under requisition. The proprietor of Naeem Marble Factory was asked to provide the expenditure incurred on the establishment of factory and thereafter he submitted this report Exh.O.W.2/1. The assessment made by him was based on. The information furnished by objector without verifying the cost of different articles.
6. Wali Muhammad, appellant appeared as O.W.3. He stated that at the time of acquisition, his factory, namely, Naeem Marble Factory was in running condition within 3 crush machines operated through five electric motors of various horse power. There was a switch room to control the machinery and a shade was built up for the protection of machinery. There was also a 15 horse power marble powder machine installed separately in the veranda. There was an office, a godown and a room with a kitchen for mechanic. The total area covered by the factory was 4 Kanals of land which was covered through a boundary wall. The cost of superstructure was worked out as Rs,3,87,000 by Assistant Director, MDA through Ex.O.W.2/1. The subsequent estimate prepared by MDA after a year amounting to Rs,40,000 was made on his back which was objected through applications, copies whereof are Exh.O.W.3/1 and Exh.O.W.3/2 which were rejected by the Project Director through Exh.O.W.3/3. On 8-9-1992, he was served with a notice to remove the machinery and hand over the vacant possession to MDA within 24 hours but the said notice was suspended by an interim order of the High Court which was subsequently vacated and consequently his factory was bulldozed on 29-9-1992 causing a loss of Rs,1,95,000 to him. He produced a detail of the loss suffered by him as Exh.O.W.3/4 to Exh.O.W.3/14. He also produced photograph of the factory in the running condition as Exh.O.W.3/15 to Exh.O.W.3/17 and the photographs of demolished factory as Exh.0.W.3/18 to Exh.O.W.3/23. The factory was installed in 1973 and the 'total cost of machinery was stated to be Rs,45,000 but no receipt was produced being destroyed at the time of removal of the factory. He could not produce any documentary proof regarding 3 crushing machines with 5 electric motors. The land beneath the factory was stated to be owned by Ali Haider his brother-in- law a part of Khasra No,308. He admitted that two crush machines were installed by him after removal from the acquired land with an expense of Rs,3,22,000.
7. Fida Hussain, Head Clerk in the office of Deputy Commissioner, Mardan appeared as R.W.1 in the referee Court. He produced recprd Award No,70/3 announced on 28-10-1993 containing notification under section 4, dated 13-4-1989 as Exh.R.W.1/1 corrigendum notification under section 4 dated 3- 9-1990 Exh.R.W.1/2. Notice issued under section 5 dated 9-10-1996 as Exh.R.W.1/3, declaration under section 6 dated 29-9-1992 as Exh.R.W.1/4, notification under section 17 dated 29-8-1990 as Exh.R.W.1/5, notice under section 9 to all the interested effectees for appearance on 29-7-1992 as Exh.R.W.1/6. The final notice was issued to the proprietor of Marble Factories of 8-9-1992 directing them to vacate the machinery and deliver vacant possession of the acquired land to the Project Director M.D.A., Mardan till 10-9-1992 as Exh.R.W.1/7. He produced Exh.R.W.1/8 to Exh.R.W.1/11 the document relating to the estimated price of the trees on the acquired land and assessment of superstructure. He also produced the award copy where of is Exh.R.W.1/12 whereby the proprietor of Naeem Marble Factory was allowed to total compensation of Rs,53,737.36 on the basis of Exh.R.W.1/8 to Exh.R.W.1/11 which include cost of trees, 15% compulsory acquisition charges and 8% per annum interest for 29 days.
8. Mian Khaliq Shah, S.D.O. (C&W) Project Division No,1 Peshawar was examined as R.W.2. In the year 1992-93 while posted as S.D.O. Education Project Building Sub: Division, Mardan, he attended a meeting with M.D.A. Authorities for the assessment of value of superstructure on the land under acquisition. After visiting the spot for a number of time and holding a thorough probe in the matter, he submitted his report Exh.R.W.1/11. The estimate was based on the schedule prepared by department for construction. The estimate drawn through Exh.R.W.1/11 was based on factual position on 7-6-1992 nothing was left undetermined on the spot and the factory was found unoperational. Before demolition, the owners were allowed to take the materials and the compensation fixed in the award was paid over and above the removal of superstructure material which were lifted by objector/appellant. The assessment drawn by R.W.2 has been acted upon in the disputed award.
9. Said Kamal Shah, Assistant Director, M.D.A., was examined as R.W.3. He stated that the Land Acquisition Collector constituted a committee comprising representative of M.D.A., C & W Department and E.A.C. Mardan with technical staff for determination of the cost of superstructure after visiting the site. He alongwith R.W.2 inspected the spot, took details measurement of different items and a report Exh.R.W.1/11 based on prevailing .Market price of the material duly signed by him and R.W.2 was submitted. He denied that there was boundary wall around the property beneath the Naeem Marble Factory. The factory building was consisting upon an office, 3 shades, garrage, kitchen, godown, a switch room and a room for powdering machine. The dismantle material was stated to be capable of re-utilizing except the R.C.C. Foundation.
10. We heard the learned counsel for the parties and perused the record. This is an admitted fact that the crush machine and other superstructure capable of removing and installation somewhere else were were removed by the objector. The compensation amounting to Rs,53,737,36 was paid to the objector/appellant over and above the removed material under protest. The objector has failed to establish through cogent evidence that he has sustained a loss of Rs,8,00,000 as claimed by him in the objection petition, O.W.1, an Engineer of the private firm, assessed the total cost of the Naeem Marble Factory through report dated 12-4-1992 based on cursory look on the spot. No receipt of the implements of the factory or the construction made by onwer/objector was produced to him. O.W.1, an Engineer of private firm was not associated with a representative of the acquiring department and his report Exh.O.W.1/1 based on cursory look and without cogent evidence cannot be relied upon. O.W.2, Roohul Amin Khan was Assistant Director, M.D.A. (the acquiring department) was produced by objector and he affirmed his assessment report Exh.O.W.2/1 whereby the total cost of the superstructure/damage done to the objector was assessed Rs,3, 87,000. He was not seriously cross-examined by the acquiring department being its employee and thus, his report was relied upon by the lower Court in the impugned decree and judgment. The objector cannot claim beyond the evidence led by him, and O.W.2 was produced as witness of the objector who visited the spot on 6-12-1989 when the factory was not demolished.
11. The evidence led by acquiring department is not worth reliance. Assessment report Exh.R.W.1/11 was prepared on the back of objection and without any detail.
12. O.W.2 being an employee of the acquiring department Cannot be disbelieved and the referee Court has rightly relied upon his assessment Exh.O.W.2/1 and has enhanced the compensation for superstructure to Rs,3,87,000 with 15% compulsory acquisition charges and 6% simple interest from the date of taking physical possession till payment of compensation in Court as permissible under the law.
' In view of the discussion made in the preceding paras. We found both these appeals without any merit and both are hereby dismissed with no orders as to costs.