1998 PLP 1233 (SCMR)

FAZAL ILAHI KHAN, J.

Leave to appeal is prayed for in this petition against the judgment of learned Peshawar High Court, Circuit Bench, Abbottabad dated 23-2-1995 whereby the petitioner's R.S.A. No.79 of 1992 against the judgment of the learned Acquisition Judge was modified and the compensation of 2 Kanals and 6 Marlas of land was enhanced from Rs.8332.80 to Rs. 12,400 per Kanal.

2. Petitioner's objection petition under section 18 of the Land Acquisition Act, 1894 against the Award No.31 dated 17-10-1983 was partially accepted by the learned Acquisition Judge on 17-9-1991 in terms that he was held entitled to get compensation of the remaining area of 2 Kanals and 6 Marlas of land at the rate of Rs.8,332.80 per Kanal treating it as "maira" kind of land. He was also allowed the interest and 15 per cent compulsory acquisition charges.

3. In appeal filed in the High Court the petitioner claimed enhanced compensation for his acquired land, the boundary wall and further claimed the amount for damage caused to his house. The learned High Court on re-appraisal of the entire evidence in this regard found that land measuring 4 Kanals and 10 Marlas was acquired out of Khasra No. 1250 but compensation was paid only for 2 Kanals and 4 Marlas as was evident from the report of Local Commissioner That the Acquisition Judge had assessed compensation of the land at Rs.8332.80 per Kanal treating it as "Maira" kind of land, though according to the entry in Khasra Girdawari 2 Kanals out of 14 Kanals, 10 Marlas of land was recorded to be of 'Bahir-Di-Abi' kind and assessed it at the rate fixed for "Bari" type of land which is Rs.12,400 per Kanal. With such modification the appeal was dismissed.

4. The contention of the learned counsel for the petitioner that the acquired land of the petitioner is in the vicinity of village Abadi and is on the road-side, therefore, it should have been assessed as building site, has not been so proved in the evidence. It has, therefore, no force. The Courts below have relied on oral and documentary evidence in assessing the market value of-the land and the same is unexceptionable unless misreading or non-reading of the evidence is proved. The contention of the learned counsel that the boundary wall and the house of the petitioner was damaged due to blasting in the construction of the road as such petitioner is entitled to damages under section 23(1) "fourthly". Is also misconceived. Section 23(1) "fourthly", on which reliance is placed, reads as follows:- "

23. Matters to be considered in determine compensation.

(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration. firstly,

secondly,

thirdly,

fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable, in any other manner, or his earnings;

5. Damage according to the petitioner's own statement was sustained as a result of blasting during construction of the road by the Contractor, therefore, it cannot be said that the damage was sustained at the time of taking possession of the land or by acquisition of the land the other property of the petitioner was affected. For the reasons stated above we find no substance in the contention and refuse to grant leave. Petition is, accordingly, dismissed. A.A./G-17/S Leave refused.