P L D 2002 Supreme Court 422 (PLP)

11. Said Kamal Shah. Assistant/Director; MDA was examined as R. W.2 who stated that the acquired land was a waterlogged and saline area and the same had been acquired on the request of the owners whereas the rate of compensation was fixed through private negotiations on the intervention of the Land Acquisition Collector. According to him, this portion of the acquired land was situated on the back of Khasra No.308 and was not in front line of the road. His case was that though the land was of lesser value but to avoid litigation, compensation at higher rate of Rs.90,000 per Kanal was fixed through an agreement. This witness admitted the following boundaries of this portion of the acquired land:‑‑ West Dual Carriage Mardan‑Nowshera Road East Abadi Village Daman North Bungalows of petitioners/objectors, WAPDA Grid Station and Grain Godowns. South Sheikh Maltoon Town,

12. The trial Court through judgment dated 29‑3‑1997 recorded a finding that execution of agreement in dispute covered by award No.67/3 had not been proved. Considering the abovementioned documentary and oral evidence produced by the parties in relation to quality of land and its potentiality, it was held that the objectors were entitled to enhancement of rate of compensation to Rs.8,000 per Marla alongwith 15% compulsory acquisition charges and 6% compound interest for total land acquired from the said objectors. Both the parties feeling aggrieved challenged the same through R.F.A. No.70 of 1997 (Abdul Samad etc. v. MDA, Mardan), R.F.A. No.88 of 1997 (MDA, Mardan v. Abdul Samad etc.) relating to Case N0.37/4 of 1996 and R.F.A. No.104 of 1997 (Saifur Rehman and others v. Government of N.‑W.F.P.) and R.F.A. No.86 of 1997 (Government of N.‑W.F.P. v. Saifur Rehman and others) arising from the decree and judgment of the Senior Civil Judge, Mardan dated 29‑3‑1997 in Reference Case No.34/4 of 1999.

13. The High Court after examining the entire documentary and oral evidence produced by the parties in depth came to the conclusion that the findings of the trial Court that execution of agreement between the owners of the land and the acquiring Department had not been proved, therefore, the owners were entitled to get rate of compensation fixed independently from the said agreement in accordance with law. It was held that land comprising Khasra No.308 which includes Khasra No.309 in its centre was lying adjacent to the Dual Carriage Mardan‑Nowshera G.T.Road. It was also held that Khasra Nos.303 to 307 on the North and 311 to 315 on the South of Khasra No.308 were also of the same situation, use and character. Khasra Nos. 316, 318 to 324 owned by the objectors were found to be adjacent to Dual Carriage Road of Sheikh Maltoon Housing Scheme as shown in Aks Exh.P.W.3/4 and not lesser in value than Khasra No.308 while the land comprising remaining Khasra numbers was lying in rear and was of lesser value comparatively. It was also found that Khasra numbers mentioned above were either adjacent to Dual Carriage Mardan‑Nowshera Road or adjacent to the Dual Carriage Road of Sheikh Maltoon Housing Scheme in the South were equal as regards potentialities and could be utilized equally as commercial market due to the adjacent Sheikh Maltoon Housing Scheme. It was held that compensation at the rate of Rs.8,000 per Marla for the said land was not correctly fixed whereas relying upon Exh.P.W.2/1 and the potentialities of the land as mentioned above and other material brought on the record the compensation was enhanced to Rs.17,000 per Marla and for the rest of the Khasra numbers, the compensation fixed by the trial Court at Rs.8,000 per Marla was affirmed, therefore, Award No.67/3 dated 7‑7‑1992 and judgment dated 29‑3‑1997 of the trial Court were modified to that extent.

14. Saifur Rehman, etc., filed objections under section 18 of the Act in which they had claimed that their predecessor was the owner in Khasra Nos.333, 335, 348 and 347 measuring 25 Kanals, 5 Marlas through registered sale‑deed dated 8‑10‑1971. They further alleged that their predecessor was recorded as owner in the Revenue Record of land measuring 49 Kanals. 6 Marlas with reference to Mutation No.302 attested on 18‑12‑1973 which included the aforesaid purchased land through registered sale‑deed. Their case was that the entire land owned by them measuring 49 Kanals. 6 Marlas was subsequently alienated in their favour by their predecessor through Mutation No.1032. They also alleged that the Abadi Deh measuring 27 Kanals, 7 Marlas was also owned by them and they constructed the superstructure in the shape of houses wherein they were residing. They also objected to the assessment of the superstructure constructed on the acquired land and the trees planted by them on the same.

15. The controversy between the parties in this case was reflected in the following issues framed by the referee Court:‑‑ "(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 peoples 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."

16. In support of their case, the said objectors examined five witnesses in all including Amir Rehman one of the objectors who appeared as attorney, for himself and other objectors. In the statement, grievance highlighted by him was that the compensation paid to them was for lesser area than the area actually acquired from them. He also deposed that compensation for superstructure should be enhanced on the basis of the earlier award drawn in 1987 wherein Rs.30 per square feet for Kacha Abadi was allowed to them while in the instant case, Rs.68. per square feet for Kacha Abadi and Rs.25 per square feet for Pakka Abadi had 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 land owned itself. Sher Rehman O.W.5 who appeared as attorney for a number of other objectors also deposed regarding the rates of compensation for superstructure and the crop and trees affected by the acquisition process, but said nothing about the rate of compensation of the land. 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 objectors had claimed Rs.12,000 per Marla as compensation for the acquired land but the same was not found to have support of any evidence on the record. Since the objectors in this case mainly stressed the question of quantum of compensation of the superstructure and the trees, therefore, the trial Court appointed the Local Commissioner for assessment 6f rates of compensation for the trees owned by the objectors. The Local Commissioner after visiting the spot, examining the parties and the Patwari Halqa submitted his report on 2‑5‑1993 according to which, Ghafoor Rehman, objector was found entitled for the compensation of the trees amount to Rs.12,460, Ibrahim, objector for Rs.14,490, Saida Khan, objector son of Sher Ali for Rs.8,850, Sher Afzal objector for Rs.250, Hazrat Khan, objector for Rs.100, Saida Khan son of Sheradin for Rs.100 and Ghafoor Rehman for Rs.390. The objections were filed against the report of the Local Commissioner by both the parties and the Local Commissioner was examined in the Court who was subjected to cross examination by both the parties but no mention was made either about the rejection or acceptance of the said report of the Local Commissioner. As regards size of the land owned by these objectors because they claimed ownership qua land on the strength of Mutation No.302 attested on 18‑2‑1972 which was also being claimed by Abdus Samad Khan, therefore, the decision of this part of their objection was left to be decided along with the case of Abdus Samad Khan.

17. In this case, the trial Court through judgment dated 29‑3‑1997 had not granted any compensation for the trees. The said objectors filed R.F.A. No. 104 of 1997 (Saifur Rehman and others v. Government of N.‑W.F.P.) whereas R.F.A. No.86 of 1997 (Government of N.‑W.F.P. v. Saifur Rehman and others) was filed against the same judgment of the trial Court in their cases before the High Court of Peshawar against the compensation of the land at Rs.8,000 per Marla. The High Court in these appeals upheld the compensation of the land as granted by the trial Court but in addition thereto, they were also granted compensation for the superstructure and the trees as determined by the Local Commissioner as aforementioned.

18. On the basis of the classification about potentialities made in these cases, the compensation of the entire land was determined accordingly through the judgment impugned in these appeals by the Peshawar High Court. Civil Appeals Nos. 1057 to 1059 of 2000 and 1984 to 1993 of 2000 have been filed by the Government/Collector whereas the other appeals have been filed by the landowners.

19. In Civil Appeal No. 1693 of 2001, learned counsel for the appellants submitted that Muhammad Sharif Khan was the owner of half of the land comprising Khasra No.308 measuring 81 Kanals, 17‑1/2 Marlas inherited from his forefather who through Mutation No. 146 dated 27‑4‑1966 gifted the said land alongwith other land to them who are their grant children, etc. Muhammad Sharif Khan subsequently sold the same land in Khasra No.308 measuring 81 Kanals, 17‑1/2 Marla through registered sale deed dated 12‑11‑1968 to the respondents in this appeal. It was claimed by the appellants that on the basis of mutation of gift, a suit for partition of land was filed in which‑ a decree was passed. One Abdul Hakam the contesting respondent including the predecessor‑in‑interest of the respondents challenged the said proceedings in the civil suit instituted in the year 1977 which was dismissed on 2‑11‑2000 confirming the partition decree in favour of Abdus Samad. It was claimed that since the respondents could not become the owners of the land on the basis of the said sale‑deed executed subsequent to the gift of land by Muhammad Sharif Khan owner as he was left with no title in the land as such compensation of the said land should be paid to them i.e., Abdus Samad Khan. The trial Court, the First Appellate and the High Court found that the factum of gift of the said land by Muhammad Sharif Khan in favour of the appellants had not been proved. Learned counsel for the appellants submitted that alongwith the said land comprising one half share of Muhammad Sharif in the Khasra in dispute, Muhammad Sharif through the same mutation by way of gift transferred this land comprising other Khasra numbers and the gift qua the other said Khasra had not been challenged by anybody. The gift being one single indivisible transaction could not be held to have proved qua the land in dispute i.e. half of share of Muhammad Sharif in Khasra No.308.

20. The High Court found that though the names of Abdus Samad Khan etc. were appearing in the Jamabandis of the year 1969‑70 but the same had been changed subsequently that too through two different inks which was affirmed by the witnesses who appeared in the case from the Revenue Department. It was also found that likewise in Khasra Girdawaris from Kharif 1979 to Rabi 1983 (Exh.R.W.I/R‑6), the names of Abdus Samad Khan, etc., appellants were admitted to be recorded through different inks respecting Khasra No.308 in dispute. Abdul Qayyum, ADK Mardan was examined on oath as R.W.3. who produced Tamlik Mutation No. 146 attested on 27‑4‑1966 in favour of the appellants copy whereof was produced as Exh.R.W.3/1. In his cross‑examination, he stated that the original Jamabandi of 1969‑70 had been lost and the case was registered against the peon namely Dost Muhammad under the Anti‑Corruption Laws who was ultimately convicted and subsequently he died. He produced the original Jamabandi of 1978‑79 regarding Khasra No.308 as Exh.R.W.3/R‑1 wherein the names of Abdus Samad Khan, etc. appellants were not appearing in the column of ownership. However, their tames were mentioned in the column of cultivation at the bottom, He neither affirmed nor denied the suggestion that the ink used for the names of appellants were different than the ink used for other entries.

21. After examining the record, we find that the concurrent findings of the Courts below on question of gift regarding land in Khasra No.308 by Muhammad Sharif in favour of the appellants do not suffer from any legal infirmity calling for interference by this Court. Not only making of gift had not been established but delivery of possession thereunder also does not stand established. If Muhammad Sharif Khan had made gift, there was no reason as to why he should have executed a registered sale‑deed in favour of the respondents of the same land. We are not convinced by the arguments of the learned counsel for the appellants that merely because the gift of land was made comprising other Khasra numbers through the same mutation had not been challenged, the gift made regarding Khasra No.308 should also be accepted, for in the other case, the land was not sold by Muhammad Sharif to any other person as such it was not contested.

22. Reverting to the question whether the appellants had succeeded in proving that apart from land comprising Khasra Nos.333, 335, 348 and 347 measuring 25 Kanals, 5 Marlas purchased by them through registered sale deed dated 8‑10‑1971, they proved ownership of the other portion of the land allegedly acquired through Mutation No.302 attested on 18‑12‑1973 to make total area in the ownership of Saif‑ur‑Rehman, etc. .to 49 Kanals, 6 Matlas.

23. We have examined the objection/reference in which though mention of acquisition of land through the said mutation was made but it was not stated as to whether the said mutation was based on sale either orally or registered document or a gift. No particular of the transaction on the basis of which the said mutation was sanctioned was given. The said objectors were rightly found to be not entitled to the compensation of the said additional land on the basis of said mutation being not its owners.

24. The only question which arises for determination is whether the enhancement of compensation by the High Court of a part of the land to Rs.17,000 per Marla was legally justified and was based on correct appraisal of evidence produced by the parties. Learned Advocate‑General who appeared on behalf of the N.‑W.F.P. Government submitted that as is apparent from the site plan, whole of the land for which the compensation was fixed at Rs.17,000 per Marla was not on the road side whereas a bigger portion of the same comprised rear portion, therefore, compensation of the said land should have been fixed at par with the other land at Rs.8,000 per Marla. He also pointed out that enhancement of compensation to Rs.17,000 based on Exh.P.W.2/1 was not justified as the said document was prepared merely for the purpose of recovery of municipal tax on the same and purchase of the land within the municipal corporation.

25. We have perused the map of the land Exh.P.3/2 and find that land comprising Khasra No.308 which included Khasra No.309 in its centre is lying adjacent to the Dual Carriage Mardan‑Nowshera G.T. Road. Likewise Khasra Nos. 303 to 307 are situated on the North and 311 to 315 are on the South of Khasra No.30$ which is compact block and has approach from, Mardan‑Nowshera Road from the West. Likewise Khasra Nos.316, 318 to 324 are also adjacent to the Dual Carriage Road of Sheikh Maltoon Housing Scheme and, therefore, were rightly held to be of not lesser in value than Khasra No.308. The decision of the Revenue Authorities and the Municipal Authorities as contained in Exh.P.W.2/3, we find was rightly given consideration by the High Court, as supporting evidence in addition to other evidence on the record that the said land on account of its situation and potentialities was valuable and there was no reason why the compensation should not be fixed on the basis of the said document, though the same as argued by learned Advocate‑General has been prepared for other purpose. i We have already referred a number of mutations produced in evidence regarding sales made either prior or after the acquisition of land which also support the findings recorded by the High Court while making enhancement of compensation on the criteria of potentialities of the land as determined by it.

26. Coming to the facts of Civil Appeal No. 1983 of 2001, it may be stated that the compensation of land determined by the referee Court underneath the appellants' factory measuring 20 Kanals was at the rate of Rs.17,000 per Maria as was done in the case of Abdus Samad. Learned counsel for the appellants .has not been able to persuade us that the appellants in this appeal were entitled to enhancement of compensation of the said land. We have already discussed in detail the evidence produced by the parties as regards compensation of land and found that the compensation granted by the referee Court to the tune of Rs.17,000 per Marla was correctly fixed, therefore, the same is hereby affirmed.

27. The compensation claimed for the superstructure of the two factories standing on the land namely Swabi Marble Factory and Brekhana Marble Factory was Rs.2,11,96,200 the break‑up of which is as follows:‑‑ Swabi Marble Factory = Rs.1,06,50,041 Brekhana Marble Factory = Rs.5,79,040

28. In support of their claim of compensation as to superstructure of the factories, the appellants examined Hamayun Khan, Chief Executive of the National Consulting Engineers as C.W.3 who produced the valuation certificate of both the factories, Exh.O.W.3/1 as regards Swabi Marble Factory and Exh.O.W.3/2 regarding Brekhana Marble Factory. He also prepared a sketch of the two factories which was produced in evidence as Exh.O.W.3/3. the referee Court relying upon the said evidence produced by the appellants granted the compensation accordingly to which no exception can be taken by the appellants.

29. Learned counsel, however, submitted that sufficient overwhelming evidence such as Exh.O.W.4/3 to O.W.4/6, Exh.O.W.4/7 and Exh.O.W.4/8 was produced on account of damages caused to the machinery of the factory which according to learned counsel was not given due consideration.

30. We have gone through this evidence. Abdullah was examined to prove these documents. He was a person appointed by the appellants themselves. Exh.O.W.4/1 is the report which depicts the total alleged damage caused to the spare part of the two factories. Exh.O.W.4/2 contains the details of damage allegedly caused to the gang, saw machine. The details of alleged damage caused to the electric guards, workshop, air‑compressor, marble tiles/slabs in Swabi Marble Factory have been given in Exh.O.W.4/3 to Exh.O.W.4/6 and the cost of damage to the marble tiles/slabs in Brekhana Marble Factory has been shown in Exh.O.W.4/7. The estimated cost of the damage caused to the electrical implements of Brekhana Marble Factory has been shown in Exh.O.W.4/8. This witness admitted in the cross‑examination that the assessment/estimates were reflected by an employee of the appellants and he had just put his signatures. The report of this witness was rejected by the referee Court on the ground that the same had been prepared after the two factories had been dismantled. It was also observed that the witness who produced the same was not qualified but a matriculate apart from the fact that the said documents were prepared by the employee of the appellants and the said witness merely put his signatures and handed over to the appellants. It was, therefore, rightly found that sufficient and reliable evidence was not available to prove entitlement to any compensation on account of any alleged damage to the machine. Learned counsel for the respondents has not been able to persuade us that these findings suffer from any illegality such as misreading or non‑reading of any material piece of evidence, therefore, no case has been made out for interference with the findings of the referee Court as regards compensation of superstructure of both the factories which we find has been granted on the higher side on the basis of evidence of the witnesses of the appellants as such no injustice has been done as the appellants have been granted adequate compensation for the superstructure of the factories and they are not found entitled to any enhancement in respect thereof.

31. In view of what has gone before, we are of the considered view that in all these cases, the compensation of land has been correctly fixed in accordance with law based on relevant considerations and the criteria laid down by the superior Courts from time to time. The impugned judgments of the High Court in all these appeals do not suffer from any illegality such as misreading or non‑reading of any material piece of evidence. To the contrary, we find that they are based on careful and elaborate consideration of each item of evidence available on the record. Neither the landowners nor the acquiring Department/Provincial Government has been able to persuade us that any interference is justified either to reduce the compensation or enhance the same. In our view, justice has been done to the parties and no interference is called for.

32. For the foregoing reasons, all the appeals are found to be meritless, therefore, they are hereby dismissed with no order as to costs. S.A.K./G‑92/S Appeals dismissed.