P L D 1978 Peshawar 138 (PLP)

3. Malta and Mitta-Re. 200 per tree.

4. Guava-Re. 200 per tree.

5. Loquate-Rs. 76 per tree.

6. Grapes-Rs. 140.50 per tree.

7. Appricot-Rs. 300 par tree

8. Pomegranate-Re. 300 per tree.

9. Peach-Re. 162.50 per tree.

10. Lemon-Rs. 300 per tree.

11. Persimon-Rs. 161 per tree.

12. Fig-Re. 200 per tree. The grievance of the petitioners is that the learned Addl. District Judge has undervalued the compensation of their various kinds of land, and although the one year average (Exh. O W 1/2) which was the credible document and which was followed by this Court in a case of this nature was before him yet the learned Addl. District Judge allowed himself to draw conjecturous conclusion in assessing the amount of compensation. As regards the amount of compensation in respect of fruit bearing trees, it too, according to the petitioners, was undervalued, for in this respect too instead of placing his reliance on credible documentary evidence in the form of Exh. O W 3/1 which was followed in another case by this Court, he made his own assessment for reasons entirely imaginary. In respect of the amount of compensation upheld by this Court in regard to the various kinds of land, the learned counsel for the petitioners referred to R. F. A. No. 119 of 1974, in which a learned Judge of this Court, by his order dated 13-11-74, upheld the amount of compensation contained in Exh. O W 1/2 awarded by the learned District Judge. The said amount of compensation awarded in that case for various kinds of land may be reproduced Rakkar ....Re. 399.20 per kanal. Kund, Maira ....Re. 978.40 per kanal. Charri, Baila Re. 1,596.80 per kanal. Bahir Di Abi Granger Re. Rs.1,996.00 per kanal. Abi and Craira Abi Chahi, Cheri Abi, Bagh Rs. 3,193.60 per kanal. Banjar Jadid Banjar Qadim Daka Rakh & Daka Chiragah, Bana ... Re. 199.60 per kanal. Ghairmumkin Digar ... Re. 99.80 per kanal. As regards the fruit bearing trees the learned counsel referred to R. F. A. No. 0 of 1976 in which their Lordships of a Division Bench is a case of this nature fixed the amount of compensation for fruit bearing trees at the rate of Re. 302 per tree, vide judgment dated 24th January, 1978. In this respect, this is what their Lordships observed :- "We, therefore, hold that the rate contained in the Schedule Exh. O W 1/1 prepared by Anwar Ali E. A. D. A. must be adopted and the price of the aforementioned trees shall be calculated at the rate or Re. 302 per tree." It may be mentioned that the Award No. 31 dated 2-12-1961 which is the subject-matter in the present case was also the subject-matter in R. F. A. No. 119 of 1974. It will, therefore, be inequitous to allow enhanced compensation in one case and low compensation in another, especially when notice is taken of the fact that the lands acquired in both the cases were of A the same quality. Consequently, we are constrained to allow compensation to the petitioners for their acquired land as has been allowed in R. F. A. No. 119 of 1974, on the basis of Exh. O W 1/2. In regard to the amount of compensation for the fruit bearing trees in this case, we do not feel any difficulty in this respect. It cannot be said that there exists any difference in the present case and in R. F. A. 19 of 1976 as regard the fruit bearing trees. This being the position, we do not see any reason to differ with what has been fixed by their Lordships as compensation for fruit bearing trees in R. F. A. No. 19 of 1976 wherein the same Award No. 31 dated 21-12-71 was the subject-matter se in the present came, for B otherwise we will be giving discriminatory treatment to the petitioners in a case of the same nature which would obviously be in violation of the principle, of equity and prudence. Consequently, we hold that the petitioners in the present case would be entitled to compensation is respect of their fruit bearing trees at the rate, per Schedule (Exh. P W 3/ 1) already ruled upon in R. F. A. No. 19 of 1976 except in the case of fig and guava which the Court below has assessed at the rate of Re. 200 per tree. Mr. Abdul Rashid the learned counsel for the Collector and WAPDA, however, contended that since the petitioners have fixed the valuation for court-fee and jurisdiction as Rs. 60,000, therefore, they would be entitled up to that amount and beyond that amount this Court has no power, as otherwise it would tantamount to entertaining a newly preferred claim for which there would be no justification. The learned counsel was, however, unable to cite any authority in support of his contention. On the other hand, Mr. Fida Muhammad Khan, the learned counsel for petitioners placed reliance upon section 25(3) of the Land Acquisition C Act to show that this Court has the power to award compentation over and above what has been claimed by the petitioners. Section 25(3), ibid, ma be reproduced :- "25.-(3) When the applicant has committed for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than and may exceed, the amount awarded by the Collector." Even a bare reading of this provision will make it abundantly clear that this Court can award the amount of compensation over and above what has been claimed by the petitioners in a reference under section 18 of the Land Acquisition Act, provided sufficient material exists to justify the same. In support of this conclusion, reference may also be made to A I R 1943 Mad.

337. Not only this but it is well settled that if the appellate Court finds that a suit has been undervalued which has prejudiced or affected the disposal of the case, then it would be the duty of the Appellate Court to act as g the Court of first instance and dispose of the appeal on the basis of the, available material on record. In the circumstances of the case, this case appears to us to be just and genuine in which .the petitioners be allowed compensa tion over and above that claimed by them originally. Consequently, we direct that they would make up the deficiency in court-fee and thereafter they would be entitled to compensation awarded to them in the preceding paragraphs of this judgment for their acquired land and fruit bearing trees. This objection application is consequently allowed in terms indicated above. But under the circumstances, there would be no order as to costs. S. A. H. Application allowed accordingly.