' ABDUL HAMEED DOGAR, J.---This appeal by leave of the Court is directed against the judgment dated 8-11-1994 passed by a learned Division Bench of Peshawar High Court, Peshawar, whereby the two Regular First Appeals Nos.16 and 23 of 1989 filed by respondent-XEN Irrigation and the appellant Taj Muhammad and others against each other were dismissed and the amount of compensation enhanced by the learned Referee Judge to Rs,4,000 per Marla was maintained.
2. This Court granted leave to appeal vide order dated 3-6-1996 to consider, inter alia, the following contentions raised by Mr. Abdul Samad Khan, learned Advocate-on-Record: ' "Firstly, that the High Court had erroneously considered the acquisition by virtue of the document Exh.P.W.3/1 and the disputed property to be falling in two different places inasmuch as Kharkai is part of Dargai as is evident from the list of delimitation of constituencies for the year 1987; secondly, that the land acquired for the post office was adjacent to Dargai Bazar and, therefore, the potential value of the land was higher than the awarded amount and; thirdly, that the learned Referee Judge as well as the Division Bench of the High Court have failed to appreciate that the land in dispute had the potential being developed into a commercial property which was surrounded by buildings and was adjacent to the main Dargai Bazar."
3. Brief facts relevant to the filing of the instant appeal are that the landed property measuring 7 Kanals, 9 Marlas comprising Khasra No,139 is situated in village Kharkai, Tehsil Sam Rani Zai. The respondents moved for the acquisition of the same vide letter dated 2-10-1984 and Assistant Political Agent, Dargai, in the capacity of Collector issued notification under section 4 of the Land Acquisition Act (hereinafter called as the Act) on 10-2-1985. Thereafter, notification under sections 6 and 17 of the Act were also issued. The award was passed on 3-8-1985 by the Assistant Political Agent, wherein compensation of the acquired land was assessed on the basis of five years average comprising only two transactions for the years 1979 and 1981 at Rs,2190.47 per Marla alongwith 15% compulsory acquisition charges. The acquired land was owned by one Kachkol Khan who died on 5-2-1987 and thereafter, it was on 5-2-1987, Taj Muhammad and other legal heirs appeared before the Collector and received compensation amount Rs,3,75,336.93 under protest.
They, however, being aggrieved by the award, moved an objection application, under section 18 of the Act, for the enhancement of the amount of compensation claiming that irrespective of the above mentioned land, they were the owners of 2 Kanals in the same vicinity. They attacked the proceedings of the acquisition being held behind their back and were thus void, illegal and not maintainable. They also claimed that in the same vicinity the market value of one Marla of similar kind of land was Rs,15,000. According to them, the compensation of the suit land was fixed on the market value on the basis of five years average of agricultural land whereas the land in question, was situated adjacent to the Bazar and was commercial one, hence the value of the land acquired was much more than mentioned in the award. The Collector sent reference to the learned District Judge for further action and the learned District Judge forwarded the same, to the learned Senior Civil Judge, Malakand at Batkhela, for disposal according to law.
4. The objection petition was resisted by the respondents only through filing written reply on various legal and factual pleas. The parties led their respective evidence and the Senior Civil Judge on the basis of the same enhanced the compensation from Rs,2,190.27 to Rs,4,000 per Marla.
5. Being still dissatisfied, the appellants preferred the above mentioned regular first appeal before the learned Peshawar High Court, Peshawar, which was dismissed as stated above.
6. We have heard Mr. Abdul Samad Khan, learned Advocate-on-Record for the appellants and Sardar Shoukat Hayat, Additional Advocate-General for the respondents and have gone through the record and the proceedings of the case in minute particulars.
7. Learned counsel for the appellants mainly contended that the learned two Courts below have erred in determining the question of potentiality of acquired land. According to him, the appellant had relied upon the sale-deed attested on 8-6-1985 whereby Post Office, Mardan Division had purchased some land in Dargai at the rate of Rs,15,000 per Marla adjacent to the land in question but 'the same was not taken into consideration. The fact that the disputed land was of commercial nature, fit for construction of shops, being surrounded by the buildings and adjacent to the main Bazar of Dargai, was also not appreciated. According to him, the potential value of the land had not been considered as required by the Act, as such the method of acquisition was nullity in the eye of law.
8. In our opinion, both the learned Courts below, have rightly assessed the compensation of the disputed land thus their findings are unexceptional. The Senior Civil Judge in reference while deciding Issues Nos.8 and 12 has taken into consideration' the extracts from the Register concerned and the other documents placed on file and has rightly enhanced the compensation to Rs,4,000 per Marla. While observing so, he had taken into consideration the only transaction which took place during five years prior to ,the issuance of notice under section 4 of the Act, according to which, 10 Marlas of land was sold at the price of Rs,40,000. He had also taken into consideration Exh.P.W.3/1 the photostat copy of transaction dated 4-6-1985 regarding the land acquired for the construction of Post Office but held that that particular area was not within the vicinity of the disputed land.
9. Admittedly, the appellants have failed to bring on record the sale deed pertaining at he relevant time to determine the market value of the land in question. P.W.4 Mukaram Khan has candidly stated that Dargai and Kharkai were two separate Mozas and the record of both these Mozas was different but Wand was the same. The sketch showing the location of the disputed land, referred by the learned counsel for the appellants, was neither produced/exhibited in the evidence nor its maker was examined, as such, it had got no value in the eye of law.
10. Since the appellant has failed to make out the case for enhancement of compensation, as such their appeal is dismissed with no order as to costs.