P L D 1988 Peshawar 24 (PLP)

FAZAL ELAHI KHAN, J.--Notification under section 4 of the Land Acquisition Act, 1894 for acquisition of land measuring 515 Kanals 5 Marlas situated in Village Banda Qazi was published on 21-6-1978. The land was acquired for the construction of Ayub Medical College, a public purpose, at public expenses. After the issuance of the required notification and hearing the persons interested and the land owners in compliance of the notices issued the Land Acquisition Collector vide his Award No. 190-95/RA/Acquisition/44/A.M.C. assessed the compensation of the acquired land at the following rates:- Hoter Rs.8,563.80 P. K. Bari/Bela Rs.7,164 P. K. Kund/Maira Rs.3,424 P. K. Rakkar Kalsi Rs.1,027 P. K. Ghair Mozora Rs.171 P. K. The valuation was based on the one year average preceding of notification under section 4 of the lands sold in the vicinity of Banda Qazi. He also worked out the compensation for fruit and non-fruit bearing trees given in the' list prepared by the Patwari Halqa in the presence of the representatives of the acquiring department. The method for the valuation of the trees was based on the formula prepared by the Agricultural Department. Apart from above the learned Collector also worked out the valuation of 'Katcha' and 'Pakka' built up-property assessed by the Executive Engineer.

2. Ghulam Mustafa and three others did not accept the award and made an objection petition challenging the award of the Land Acquisition Collector in their objection petition and claimed enhanced compensation of fruit and non-fruit bearing trees in the acquired land. This objection petition was referred to the Land Acquisition Judge where it was registered as land acquisition Case No.68/4. The learned Senior Civil Judge exercising the powers of Land Acquisition Judge accepted the objection petition and the objectors were held entitled to receive enhance compensation for the trees claimed in their objection petition in addition to compulsory acquisition charges and interest permissible under the law vide his order dated 20-2-1986. The judgment and order of .the Acquisition Judge is challenged in R.F.A. No.97 of 1986.

3. Sheikh Abdul Aziz and another also challenged the award wit respect to the compensation of the fruit bearing trees in their acquired land bearing Khasra Nos. 1027 and 1028 in village Banda Qazi. The objection petition was referred to the Acquisition Judge where it was registered as reference No.6/4 on 7-6-1981. They claimed a sum of Rs. 7,70,288 as compensation for the fruit bearing trees. Both these Khasra Numbers measure 10 Kanals 16 Marlas in all. The defendants resisted the objection petition whereafter framing the issues evidence was led by both the parties. The learned Acquisition Judge vide his judgment and order dated 10-10-1986 enhanced the compensation to Rs. 7,70,288 as claimed in the objection petition. This judgment and decree of the Land Acquisition Judge is challenged in R.F.A. No.36, of 1986. As both the appeals arise out of the same award and common questions of fact and law are involved we propose to dispose of both of them by this single judgment.

4. Before dealing with the merits of the cause, we may point out that both the original objection petitions are not available on the file. There are, however, photostat copies of the same, which are available on the file of the Acquisition Judge. There is an application on the file of the Acquisition Judge in the case of Ghulam Mustafa, the contents of which are as follows:- This application was addressed to the Collector. However, there is a reference application dated 8-7-1982 on the file purportedly signed/ initialled by the Land Acquisition Collector Abbottabad. Strangely enough, the photostat copies of the alleged objection petitions do not bear the signatures or initials of the Land Acquisition Collector. It only bears the signature of Senior Civil Judge, Abbottabad dated 7-6-1987. No application for permission to lead secondary evidence is forthcoming on the file of the Land Acquisition Judge. The Land Acquisition Judge, however, has proceeded in the 'natters treating the photostat copies of the objection petitions as the original objection petitions.

5. In the former case in support of the objectors plea, that in their acquired land there were fruit and non-fruit bearing trees they produced. Syed Nizakat Shah, Assistant Director Agricultural as P.W.1 who produced the Goshwara Exh.P.W.1 regarding the prices of different types of fruit bearing trees. Fazal-ur-Rehman D.F.O. Watershed examined as P.W.2 stated that he had not visited the spot and had not prepared any list of non-fruit bearing plants. Hence he was not in a position to produce any record in this regard. Aurangzeb Patwari Halqa Banda Qazi examined as P.W.3/1 produced the original Revenue record and from it placed copy of Fard Nambarwar, which is Exh.P.W.3/1, and copy of Khasra Girdawari from Rabi 1978 to Rabi 1983, which is Exh.P.W.3/2. Muhammad Afsar was examined as P.W.4 who stated that on the direction of Ghulam Mustafa he had dug ditches for plantation of Safaida and apple plants in the year 1975 and the plantation was made in the year 1976. He further stated that within the period of 2 years 1300 to 1400 plants were planted of which 150 were apple plants. He further stated that there were about 1000 Safaida trees of the age of 5 years at the time of acquisition and that the apples were fruit bearing. In his cross-examination he admitted that he is a Mistri by profession and he neither owned land nor had got a Bungalow. He further stated that he did not recollect the actual date of plantation but stated that it was in the year 1975. In order to test his veracity he stated that East Pakistan was attacked by India in the year 1965 but showed his ignorance of the fact whether as a result of the attack Bangla Desh came into existence. He also could not remember the date of death of Quaid-i-Azam when examined on the point. This witness could not be relied upon he being a Mistri having no special skill in fruit plantation. He is also not an ordinary labour and is not expected to have been engaged for the purpose. In support of his evidence no other supporting material is available on, the file. Ghulam Mustafa objector in his statement deposed that he `purchased the acquired land in the year 1972 and planted apple and Safaida trees in the years 1975-76. That after the plantation he had kept a chowkidar Mir Alam` by name to whom he used to pay Rs.200 per month, but he died in the year 1980. He further stated that he had made an application to the Collector in which he had claimed Rs. 4/5 lacs as compensation for his fruit bearing trees and prayed for its verification on the spot but the Collector allowed him Rs.8,

200. He did state that notification under section 4 of the Act in the case was issued on 21-6-1978, when cross-examined he did admit that he had not shown in his income-tax returns the payment made rib the Chowkidar and the income derived from the fruit bearing trees. Haroon Rashid P.W.6 stated that Khasra No.1036 measuring 1 Kanal 13 marlas owned by Arshad Jadoon had 258 Safaida of the age of 5/6 years and its rate at that time was Rs.250 per tree. He did admit that he was neither an expert nor a dealer in the Safaida trees. Haji Ali Asghar P.W.7 stated that at the time of acquisition of his land it contains 40 trees of which one was 'Toot' and the other were 'villow'. He frankly admitted that he had pointed out all these trees to the Collector when he visited the spot during the acquisition proceedings. He also admitted that the Collector had visited the spot in presence of his father and had prepared a goshwara of trees in his presence. No other evidence was led by the objectors in support of their claim.

6. On the other side there is the statement of Muhammad Daud representative of the defendants who simply deposed that the Collector had correctly worked out compensation for the acquired land and the trees standing thereon. There are available on the file certified copies of the list of fruit bearing and fruit bearing trees in the acquired Khasra numbers prepared at the relevant time. Apart from it there are certified copies of Jamabandi of the acquired Khasra number of the relevant period in which the suit land is entered as "Ghair Mumkin Maira and Bela". There is no mention of any orchard or Darakhtan in it. Even otherwise according to the statement of Ghulam Mustafa notification regarding the trees was issued under section 4 of the Act on 21-6-1978 and even if it is admitted that the plantation was made in 1976 the plants were of two years of age at the relevant time and its nursery price would be Rs.5 per tree at the most. Unfortunately the learned Acquisition Judge failed to take into consideration whether such large numbers of trees as claimed could have been placed for beneficial fruit bearing purposes in the acquired land. In a book by the name of "HUMARY PHALL" published by the Bureau Agricultural Information, West Pakistan Lahore first edition published, in 1965 page

488. The number of apple trees for fruit bearing purposes per acre is given as under:- The learned Acquisition Judge without applying his judicial to the evidence led by the objectors and proper scrutiny strangely made the following observation: I have given my anxious thought to the arguments advanced by the learned counsel at the Bar. From the perusal of the record it transpired that the Collector at the time of formulation of the Award did not assess the number of trees (both fruit bearing and non-fruit bearing) their ages and the kind. The objectors are entitled to the enhanced amount of compensation claimed in their objection petition." In the concluding para of his judgment it was held: "As a sequal to my above discussion the objection petition of the objectors succeeds, and the objectors are granted decree to the extent that they are entitled to receive the enhanced amount of compensation for the trees claimed in their objection petition."

7. No evidence worth reliance has been produced by the objectors to prove that the compensation worked out by the Land Acquisition Collector was unfair or that there were trees standing in the land, which were not accounted for. The learned Acquisition Judge while giving his decision did not appreciate the evidence led by the parties. He did not scrutinize the evidence of the objectors nor considered it reliability. He further ignored the documentary evidence available on the file in the shape of copies of the Jamabandis, to which presumption of correction is attached, and the copies of Khasra Girdawari of the relevant period. He also failed to take into consideration the evidence of Ali Asghar Shah objector wherein he admitted that at the time of acquisition proceeding the-Collector had visited the land to whom the objectors pointed out the trees standing in the land thereon. On the file there is available the list of the trees with its number and the ages prepared at the time of the acquisition proceeding and subsequent to the issuance of the notification under section 4 of the Act. It is very unfortunate that the learned Acquisition Judge without applying his mind to the facts of the case held the objectors entitled to the amount, which they had claimed in their objection petitions without substantiating it with cogent reasons.

8. We on consideration of the evidence on the files have reached the irresistible conclusion that there was no legal evidence on the files in support of the claim made by the objectors.

9. Consequently we would accept R.F.A.No.97 of 1986 and R.F.A. No.36 of 1986, set aside the judgments and decree of the Courts below and dismiss the objection petition. Parties are, however, left to bear their own costs. A.A./584/P Appeal accepted.