2002 PLP 1942 (CLC)

SHAH JEHAN KHAN, J.‑‑‑ Regular First Appeal No.71 of 1997 (Messrs Swabi Marbles Corporation (Pvt.) Ltd. and another v. Land Acquisition Collector and others) and R.F.A. No.89 of 1997 (Government .of N.‑W.F.P. and others v. Swabi Marbles Corporation (Pvt.) Ltd. and others) arising from the same judgment are disposed of by this common judgment.

2. For the extension of Sheikh Maltoon Township, Mardan and construction of a 200 beds Hospital, the land fully described in the Award No.70/3, dated 28‑101992 was acquired. Swabi Marble Factory and Brekhna Marble Factory constructed over a part of Khasra No.308 were also demolished and the proprietors of the two factories were, awarded a total compensation for the superstructure as Rs.7,13,605.55 including 15 per cent. compulsory acquisition charges and 8 per cent interest for 29 days permissible under the law. In addition to the land beneath the factories at the rate of Rs.1,10,000 per Kanal for the front portion of the acquired land and Rs.90,000 per Kanal for the rear portion of Khasra No.308 in the revenue estate Roria Tehsil and District Mardan.

3. The proprietors of the two factories feeling dissatisfied with the rate of compensation awarded by Land Acquisition Collector filed an objection petition under section 18 of the Land Acquisition Act on 30‑11‑1992 which was referred to Senior Civil Judge, Mardan as Reference Case No.20/4 of 1996 for determination of rate of compensation. The Referee Court framed the following issues arising from the objection petition:‑‑ (1) Whether the Objectors have got a cause of action? (2) Whether the Objectors received compensation without protest, if so, its effect? (3) Whether the objection petition is within time? (4) Whether there was any Abadi, trees and machinery in the acquired land, if so, the compensation awarded by the Collector is wrong and inadequate? (5) Whether Objectors are running the Marble factory in the land acquired, if so, whether they are entitled to the loss of earning and at what rate? (6) Whether the Collector has wrongly classified and under assessed the suit land, if so, what is the correct classification and market value of land acquired? (7) Whether the Objectors have sustained any damage at the instance of the respondents, if so, to what extent and effect? (8) Whether the Objectors are entitled to the enhancement of compensation as prayed for? (9) Relief.

4. Both the parties adduced their evidence as they wished to produce. In the conclusion the learned Senior Civil Judge, Mardan enhanced the rate of compensation of the superstructure of Swabi Marble Factory to Rs.1,06,50,041 and for the superstructure of Brekhna Marble Factory to Rs.5,79,040 and the compensation for land beneath the two factories was enhanced to Rs.1.60,000 per Kanal. Still feeling aggrieved the objectors have filed R.F.A. No.71 of 1997 and the acquiring department being aggrieved from the enhancement made through the impugned decree and judgment has filed R. F. A. No. 89 of 1997.

5. At the very outset learned counsel for the objectors raised a preliminary objection regarding maintainability of appeal filed by acquiring department in view of the judgment reported in WAPDA v. Aurangzeb Khan PLD 1975 Pesh. 1, Province of Punjab v. Naseeruddin 1991. SCMR 2091; Pir Khan v. Military Estate Officer PLD 1987 SC

485. The learned Advocate‑General produced judgment reported in case Military Estate Officer v. Assistant Commissioner‑cum‑Collector, Quetta and 4 others 1997 CLC 556 wherein a Division Bench of the Quetta High Court has overruled such objection on the strength of judgment delivered by Federal Shariat Court in Shariat Petition No.6 of 1988 which was also upheld in Shariat Appeal No.7 of 1989 in the Shariat Appellate Bench of Supreme Court of Pakistan, decided on 18‑2‑1991. In the said judgment sections 18, 22‑A, 50 and 54 of Land Acquisition Act, 1894 were declared against the Injunctions of Islam and recommended amendments to make the law on the subject more consistent and equitable till 30th September, 1991 as the existing law by then not providing a right of cross‑objection? leading evidence for determination of rate of compensation and right of appeal, was found in negation of justice and repugnant to the Injunctions of Islam. It was observed that a party who has to pay money from its funds should have been provided a, right to make reference, to adduce evidence for the purpose of determining the amount of compensation if dissatisfied from the rate of compensation fixed by Land Acquisition Collector and to prefer an appeal if aggrieved from the findings of Referee Court. It was held that if the law should not be amended till 30th September, 1991 the existing law will have no effect after the aforesaid date. The judgment of Federal Shariat Court upheld by Shariat Appellate Bench in the Supreme Court of Pakistan was followed in Muhammad Pervez v. Azizullah Khan PLD 1999 Pesh.

53. In these circumstances we reject the preliminary objection regarding maintainability of the appeal filed by Acquiring Department.

6. We heard the learned counsel for the parties on merits and perused the record. The objectors have claimed Rs.5,00,000 per Kanal as rate of compensation for the land measuring 20 Kanals a part of Khasra No.308. Counsel for appellants/objectors stated at the Bar that rate of compensation for the acquired land has already been enhanced by this Court in R.F.A. No.70 of 1997, decided on 18‑4‑2000 regarding the adjacent lands reported in Abdul Samad Khan, and others v. Project Director, Mardan Development Authority 2001 CLC 33 which has now been challenged in the august Supreme Court of Pakistan and the rate of compensation for land be fixed in terms of cited judgment noted above. It was observed in the aforesaid judgment regarding the land sub-judice in the instant appeals as follows:‑‑ "In the `Aks Sharja Kishtwar' ‑Exh.P.W.3/4 it is evident that Khasra No.308 which includes Khasra No.309 in its centre is lying adjacent to the Dual Carriage, Mardan‑Nowshera, G.T. Road. Likewise Khasras Nos.303 to 307 on the North and 311 to 315 on the South of Khasra No.308 are also of the same use and character. Khasras Nos.316, 318 to 324 owned by the objectors are 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 rest of the acquired Khasras Nos. are lying in the rear and lesser in value comparatively. The Khasra Nos. mentioned above either adjacent to Dual Carriage, Mardan? Nowshera Road or adjacent to Dual Carriage Road of Sheikh Maltoon Housing Scheme in the South are equal in potentiality and could be utilized equally as commercial market due to the adjacent Sheikh Maltoon Housing Scheme. In these undisputed facts we feel no hesitation in holding that the rate of compensation for the aforesaid Khasra Nos. was wrongly fixed on the basis of rate fixed for Roria after relying on Exh.P.W.2/1 and the fair and justifiable rate for these Khasra Nos. should be fixed at Rs.17,000 per Marla as determined for land lying on Mardan‑Nowshera Road through Exh.P.W.2/1. The rate fixed for remaining Khasra Nos. in the impugned judgment as Rs.8,000 per Marla merit no interference."

7. In view of the aforesaid finding we are inclined to enhance the rate of compensation for the land beneath the two factories measuring 20 Kanals to Rs.17,000 per Marla.

8. As regards the rate of compensation for the superstructure of the two factories a total compensation was claimed Rs.2,11,96,200 in the objection petition. To substantiate the aforesaid rate of compensation for superstruture Hamoyun Khan, Chief Executive of the National Consulting Engineers was produced as C.W.3. He deposed that on the request of Haji Wazir Muhammad objector Managing Director, Swabi Marble Corporation and Proprietors Brekhna Marble Factory he visited the site on 12‑9‑1992 and provided his valuation certificate (Exh.O.W.3/1) respecting Swabi Marble and (Exh.O.W.3/2) respecting Brekhna Marble. He also prepared a sketch‑of the two factories as Exh.O.W.3/3. He admitted that private persons are charged for valuation certificate on the basis of per square foot.

9. Abdullah was produced as O. W.4 who exhibited his report as O. W .4/ 1 showing the total damage caused to the spare parts of the two factories. He also produced an estimate of the damage caused to the gang saw machine as Exh.O.W.4/2, the cost of damage caused to the electric goods workshop, air compressor, marble tiles/slabs in Swabi Marble Factory as Exhs.O.W.4/3 to O.W.4/6, and the cost of damage to the marble tiles/slabs in Brekhna Marble Factory as Exh.O.W.4/7 and estimated cost of damage caused to the electrical implements of Brekhna Marble Factory as Exh.O.W.4/8. He has admitted that the assessment/estimate was drawn by an employee of the owner and he has just signed it. The aforesaid damage reports are not believable being prepared after the dismantling of two factories. The witness is not a technically qualified person but a matriculate. The aforesaid documents were prepared by employees of the objector and the witness has just signed it along those employees and the same were handed over to the objector.

10. The acquiring department has produced Mian Khaliq Shah, S.D.O., C&W Secretariat, Peshawar as R.W.1 and Said Kamal Shah, Assistant Director, M.D.A., Mardan as R.W.2. On the request of M.D.A. both the witnesses alongwith ,technical staff visited the site and prepared their estimate as Exh.R.W.1/1. No site plan was prepared and even the measurement notices were not prepared by the two witnesses and allegedly made by M.D. A. Staff. No specification was obtained from the objectors. Both the witnesses are employees of the Provincial Government and M.D.A., thus partisan and the estimate drawn by them Exh.P.W.1/1 was rightly turned down by the Referee Court vide his detailed discussion under Issue No.4.

11. Hamayun Khan (O.W.3) is qualified Civil Engineer who inspected the. site of the two Marble Factories on 12‑9‑1992 and prepared a detailed report Exh.O.W.3/1. He has drawn the total estimated cost of the damage caused as Rs.1,06,50,041 for Swabi Marble Factory and Rs.5,79,040 for Brekhna Marble Factory. The said report was accepted by the Referee Court in his impugned decree and judgment and the objectors cannot be allowed to claim more than the evidence led by them. The acquiring department has miserably failed to shatter the deposition of Hamayun Khan (O.W.3) though subjected to lengthy cross‑examination.

12. As a result of the above discussion we arrived at the conclusion that the impugned decree and judgment is not suffering from any illegality, misreading or non‑reading of evidence and has rightly given effect to Bxh.O.W.3/1 for fixation of the value of the superstructure of two factories Swabi Marble Corporation and Brekhna Marble .Factory. Both these appeals are hereby dismissed except to modify the rate of compensation for the acquired land to Rs.17,000 per Marla on the strength of judgment reported in 2001 CLC

33. No order as to costs. H.B.T./569/P ? Appeals dismissed.