2011 PLP 1489 (MLD)

SYED SAJJAD HASSAN SHAH, J.

Through the instant regular first appeal, National Highway Authority has challenged the judgment and decree passed by Additional District Judge/Referee Judge, D.I.Khan dated 11-3-2010 whereby on acceptance of Reference, the quantum of compensation has been enhanced to Rs.6,74,600 per kanal against an amount of Rs.1,6,96/35 per kanal fixed by Land Acquisition Collector, D.I.Khan.

2. Briefly stated facts of the case are that Land Acquisition Collector, D.I.Khan set in motion the process of compulsory acquisition under the Land Acquisition Act for the construction of D.I.Khan-Serai Gambeela Road, consequently., the Collector Land Acquisition proceeded in accordance with provision contained in section 17-A of the Land Acquisition Act, whereby six shops owned by the respondent situated at Pusha Bridge were acquired for which the market value was fixed as Rs. 1,06,096/35. The respondent/objector being dissatisfied with the market value as fixed by the Collector, challenged the Award by filing Reference Petition which was duly sent to the learned Referee Judge. He averred in the petition that the appellants fixed a meagre amount as the market value of the suit property whereas the respondent spent a huge amount in construction of structure by dumping earth etc. Before filing objection petition, the respondent moved an application to the District Coordination Officer for assessment of the compensation of the acquired shops. The application was sent to the Building Department and according to its schedule, the Sub-Engineer assessed the cost of the structure as Rs.674600/20 and the same amount has been claimed as the compensation of the acquired shops in the objection petition of the respondent. It was further averred that the market value mentioned in the Award is fake and fictitious, without any authentic material.

3. The appellants-acquiring department contested the petition by filing written statement and strenuously controverted the grounds raised in the Reference petition by the respondent/objector. The learned Referee Judge framed issues arising out of the divergent pleas raised by the parties in their pleadings. The parties were afforded ample opportunity to adduce their evidence which they produced. The learned Referee Judge by the impugned judgment, accepted the Reference Petition and awarded the cost of structure at the rate of Rs.6,74,630/28 which was assessed by the Sub-Engineer according to the schedule of the Building Department. Hence, the instant appeal by the appellants.

4. The learned counsel for the appellants contended that the D.C.O has no lawful authority to entertain the application made by the respondent/objector and to send the same to the Building Department for the assessment of the cost of structure. He further contended that the very basis of objection petition is founded on illegal and unlawful document, therefore, the entire superstructure built upon such document is bound to fall on the ground. He also made the reference of the Land Acquisition and Resettlement Plan for Malana Junction, Serai Gambeela section 1 and submitted that the assessment of structure is against the provisions contained in the said Plan. He requested for acceptance of appeal and setting aside the judgment and decree passed by the learned Referee Judge. 4A. As against that the learned counsel for the respondent/objector contended that the D.C.O has not marked the application to the Building Department but it was moved by the respondent/objector for the true assessment of the cost of structure. He further contended that as per paragraph-VI (12) of the Land Acquisition and Resettlement Plan for Malana Junction, Serai Gambeela section 1, 'the District Coordination Officer being Chairperson has ample power to proceed in the matter. He also placed reliance upon Chapter-IV paragraphs-4(1) and 4(2) of the said Plan and paragraph 99 of 10.3.2 dealing with houses, building/ structure. He further contended that the respondent/objector has failed to bring on record any material in order to prove the amount of cost fixed by Sub-Engineer of Building Department. He prayed for dismissal of the appeal.

5. I have considered the above arguments and carefully perused the record.

6. A perusal of the record vividly shows that as per the provision contained in Clause (12) of paragraph-VI, the District Coordination Officer used to chair ALARP Coordination Committee which has been established at District level by, the National Highway Authority. The paragraph is reproduced as under:-- "(12) ALARP Coordination Committee has been established at District level by NHA, chaired by the District Coordination Officer and comprised of the Project Director (its Secretary), District Officer Revenue, LAC of Revenue Department, Land Acquisition, Advisor-NHA, alliance of APCs, representatives of other concerned District Department i.e. Works and Services, Agriculture, Forest etc. and office of District Nazim, Tehsil Nazim, Union Councils. The LCC will provide a forum where NHA, local government agencies and the APs can confront their views on various LAR-related matters. The LCC will play vital role in addressing complaints and grievances by hearing the complaints, if found justified, will support its lodging at the PIU (Project Implementation Unit)." Chapter-IV of the said Plan provides existing legal framework and project resettlement policy background. Para-4.1 deals with Pakistan's law and regulation on land acquisition and resettlement policy background. Para 4.2 is about the ADB's Policy on Involuntary Resettlement which focuses on people as centre of development. It recognized that while projects must proceed for the greater benefit of society, in spite of potential adverse effects on some people, these people must be consulted, compensated for their losses and assisted to rebuild their owns and livelihood at least at a level equivalent before the project. The principle enunciated in the ADB policy, amongst others, the following are of important nature:-- That compensation must ensure the maintenance of the APCs pre-project living standards and lack of formal legal land title should not be a hindrance to deviation. Moreover, compensation/rehabilitation assistance will be paid prior to ground levelling, demolition, and in any case, before an impact occurs. Para 99 of 10.3.2. provides that building/dwellings are valued at replacement cost based on cost of material, type of construction, level, transaction or other construction cover and open constructed areas. No deduction will be applied for depreciation, salvaged materials and transaction costs as per ADB's policy. Construction bates were taken from Provincial Communication and Works and cost of construction was compared with current open market rates, it was found that rates given by Communication and Works Department were compatible with market rates.

7. The objection raised on behalf of appellants that District Coordination Officer has no authority to refer the application to Building Department with the direction to make assessment of the suit property, does not hold field. Moreover, the instructions contained in the above referred Plan also provide for the application of Land Acquisition Act for determination of the market value of the property acquired for the purposes laid down in the Plan.

8. In the written statement; the appellants have neither expressly controverted nor asserted about the structure cost of the suit shops. However, it is averred that the respondent/objector demanded much structure cost than the actual one. The respondent/objector produced Muhammad Arif, Sub-Engineer Works and Services Division, D.I.Khan as P.W.1 who prepared the construction cost according to schedule, 2008 in respect of suit shops which is admitted in evidence as Exh.P.W.1/1 duly signed by AD Buildings and Deputy Director Buildings. He further testified that the price was assessed in line with the direction of the higher authorities about the constructed structure according to schedule of 2008. He also testified his signatures. When Exh. P.W.1/1 was being tendered in evidence by said witness no objection was raised. It is worth mentioning that the structure cost was assessed by Deputy Director Building Works and Services Department, D.I.Khan vide his construction cost as per schedule, 2008. It is well settled principle of law that once a document is admitted in evidence without an objection, it amounts that the same has been duly proved. Reliance placed on PLD 1972 Peshawar

175. The appellants have not disputed Exh.P.W.1/1 at any stage of proceedings in the instant case. Likewise, P.W.2 Ramzan Ahmad Patwari/Clerk NHA deposed in his cross-examination as follows: The respondent/objector was examined as P.W.3 who testified that the acquiring department made the structure of all the projects in the light of the rates fixed by Building Department. However, the respondent/ objector was deprived of the said project structure. Again, P.W.3 has not been cross-examined by the appellants regarding rate of structure as Rs.6,74,630/98 and about Exh.P.W.1/1. It provides the above mentioned cost of the shops as assessed in Exh.P.W.1/1 by P.W-1 Sub-Engineer Works and Services. P.W.3 objector has also stated that the defendants have paid the structure cost respecting their other projects in accordance with the rates of the Building Department. This witness has not been cross-examined on these material aspects of the case which also amounts to admission on the part of the appellants. In this regard, reliance placed on 2002 SCMR 1700 wherein it was held that:-- "The factum of transfer of land by way of hiba-bil-iwaz', constrained relationship between Mst. Mana and her husband Khushi Muhammad and denial of authority for transfer of land went unchallenged which amounts to admission on the part of petitioner."

9. One Hazrat Ali Shah, the representative of the appellants was examined as RW-1 who has neither challenged the cost which is mentioned in the objection petition of the respondent/objector nor referred any other cost of structure of shops. On the other hand, in cross examination, he admitted it as correct that prior to initiating the acquisition proceedings, all the parties were agreed that rate of structure cost would be as assessed and paid by NHA according to rate of C&W. He further admitted it correct that the rate of entire structure was assessed according to rates given by C&W. However, the rate of structure of respondent/objector has not been assessee according to C&W rates. In this regard, no plausible reason put forth by this witness.

10. In view of the above material available on record, the learned Referee Judge while deciding Issues Nos.6, 7 and 8 rendered its findings and fixed Rs.6,74,630/98 as the estimated cost of structure earlier assessed by Sub-Engineer. The appellants in support of cost of structure, produced no evidence, in absence whereof the cost of structure as claimed in the objection petition by the respondent/objector would be considered as the cost of structure, thus, the learned Referee Judge legally and justly fixed the sane as Rs.6,74,630/98.

11. No other point was agitated by the appellants.

12. In view of the above, there is no force in the instant appeal which is hereby dismissed with no order as to costs. H.B.T./207/P Appeal dismissed.