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Regular First Appeal No. 61 of 1980, decided on 14th June, 1983,

‑ ‑ Ss. 9, 10 & 25‑Neither notices nor copies thereof ‑ placed on record ‑No witness examined by Collector to show that notices were in fact served on each objector ‑Before invoking penal clause proof of strict compliance of provisions which constitute prerequisite or application of penal provision essential‑Mere admission of objector in his cross‑examination that notices under S. 9 were distri buted in village, held, not sufficient to prove that each of objectors did receive requisite notice ‑Penal clause of S. 25(2), held further, not attracted in circumstances.

‑‑ Ss. 9, 10 & 18‑Objection petition‑Burden on Collector to prove that objection petition was forwarded to Court by authorised officer‑Failure of Collector to bring anything on record to show that objection petition was forwarded to Court by authorised officer‑In absence of any evidence to contrary presumption would be that official act shown to have been done by Collector was in fact done by Collector.‑[Border of proof].

‑‑ Ss. 4. & 8‑Cost estimates of Guilt‑up property and disputed well prepared by overseer, privately engaged and paid by one of objec tors‑Estimates prepared .on 5th May, 1974 by privately engaged overseer were not enclosed with objection petition which was forward ed by Collector to Court on 23rd September, 1976‑Overseer was examined on 9th June, 1978 and during period from 5tb May, 1974 to 9th June, 1978 estimates prepared by overseer remained in whose custody, was not clarified by objectors and Acquisition Judge also not applying mind to fact‑Held, circumstances create strong suspicion about genuineness of estimates‑Such estimates cannot be relied upon by Acquisition Judge and given preference over cost estimates prepared by official assessors.

R. F. A. .64 of 1980 and R. F. A. No. 94 of 1978 ref.

‑‑ Ss. 4 & 8--estimate of cost of built‑up property and disputed well prepared by semi‑official Government agency and record kept by such agency in ordinary course of business‑‑Such record could be produc ed by person who was having possession of custody of such record Such documents, held, could be admitted in evidence and stood on different footing from documents prepared and kept by private persons or private agency.

P L D 1981 Kar 553 distinguished.

S. Ibne Ali, Addl. A.‑G. for Appellants.

Taj Muhammad Khan for Respondents.

Date of hearing: 24th May, 1980.

‑The immovable property situated in village Phuldar, Tehsil Haripur, now District Abbottabad, was acquired for the construction of Tarbela Dam. 1n that village many houses and wells were situated, the market value of which was assessed by the Assess ment Division formed for the purpose by WAPDA. The Collector Acquisi tion while awarding compensation for the built‑up property and wells relied entirely on the assessment made by the Assessment Division, WAPDA. He announced his award on 14th December, 1983.

2. Mubaras Khan and twenty‑five others were not satisfied With the compensation amount awarded by the Collector Acquisition in respect of the houses and one well and they, therefore, filed objection petition before the Collector under section 18 of the Land Acquisition Act in respect of that property, which was specified in detail in that petition. The objection petition was forwarded to the acquisition Judge for determination of the points raised therein. Before the learned Acquisition Judge the appellants herein raised many pleas, which were reduced to following issues:‑

(1) Whether houses Nos. 13/11‑5, 12, 5, 23, 26, 17 to 20, 108, 110, 111/R‑1, to 111,8‑3, 116, 112, 59. 60, 66/11‑1 and 66/11‑2, 146 145, 70, 28, 29 and well No. 22 have been undervalued, if so, what is the amount of fair compensation

(2) Whether the objection petition is not properly referred to this Court, if so, to what effect

(3) Whether the petition is within time

(4) Whether the objectors have received compensation without' protest, if so, to what effect

(5) Whether the objectors have not responded to the notices under sections 9 and 10 of the Land Acquisition Act, if so, to what effect

(6) Relief.

The learned Acquisition Judge decided Issues Nos. 2, 4 and 5 against the respondents (appellants herein), Issue No. 3 in favour of the objectors and issue No 1 also in favour of the objectors. Consequently, the learned Acquisition Judge, by his judgment and decree, dated 26th April, 1979, raised considerably the amount of compensation in respect of the built‑up property and the well. He based his decision on the estimates prepared by an overseer who was privately engaged by the objectors for making assess ment of the market value of the property now in dispute.

3. The compensation amount assessed by the learned Acquisition Judge was not acceptable to the Collector as well as WAPDA, who have filed this Regular First Appeal in this Court calling in question the findings of the learned Acquisition Judge as bad in law and against facts and the evidence brought on record.

4. S. Ibne Ali, Additional Advocate‑General appeared on behalf of the appellants and Mr. Taj Muhammad Khan, Advocate appeared on behalf the respondents. Their arguments were heard and the record gone through with their assistance.

5. The first argument of the learned Counsel for the appellants was that since the objectors bad not responded to the notices issued under sections 9 and 10 of tie Land Acquisition Act and had omitted, without sufficient reason, to make claim for the enhanced amount, they could not be awarded compensation exceeding the amount awarded by the Collector. In this regard he relied on the mandatory provisions of section 25(2) of the Land ;Acquisition Act and the statement of Abdur Rashid objector (O.W. 2), who in cross‑examination admitted that the notices were distributed in the village, we. however, do not agree with the contention of the learned counsel for the appellants because neither the notices nor copies thereof have been placed on record, nor any witness examined by the appellants; to show that the notices were in fact served on each of the objectors. Before invoking penal clause contained in the law, the Court would always insist upon the proof of strict compliance of the provisions of law which constitute pre requisite for the application of that penal clause. In this case, as already observed, there was no evidence, worth consideration, on the record to show that the objectors were served with the notices issued under section 9 of the relevant Act. The mere admission of Abdur Rashid objector in his cross- examination that notices were distributed in the village would not be sufficient to prove that each of the objectors did not receive the requisite notice. The penal clause contained in section 25 (2) of the Land Acquisi tion Act was, therefore, not attracted to the case. We, therefore, repel the contention of the learned counsel for the appellants as being without‑force.

6. The second argument .of the learned counsel for the appellants was that since the objection petition was not forwarded by an authorised officer to the Court for determination, no action could be taken on it by the Court. This argument is equally without substance. The burden heavily lay on the appellants to prove that the objection petition was not forwarded to the Court by an authorised officer, but they miserably failed to bring anything on the record to show that what was alleged by them was correct. In absence of any evidence to contrary, the presumption would be that the official act shown to have been done by the Land Acquisition Collector was in fact done by him.

7. We nova come to the third argument of the learned Counsel for the appellants. He argued that the cost estimates of the built‑up property and the disputed well prepared by Haji Ahmad, Overseer, who was privately engaged and paid by the objectors for the purpose of preparation of the cost estimated, should not have been relied upon by the learned Acquisition Judge and given preference over 'the cost estimates prepared by the officers of the Assessment Division of WAPDA. His precise argument was that the Assessment Division of WAPDA consisted of experts who were specialised in the job and each estimate prepared by an expert‑officer was checked and re‑checked by officers higher in rank to him and for that reason those estimates were more authentic than the cost estimates prepared by an overseer privately engaged by the objectors. He further argues that in many cases the cost estimates prepared by the Overseer who were privately engaged by the objectors have not been accepted by this Court. In this respect he cited R. F. A. 64 of 1980, decided on 15th May, 1983, and R.F.A. No. 94 of 1978, decided on 17th June, 1980.

8. The learned counsel for the respondents, however, argued that Haji Ahmad, Overseer was produced by the ojectors in the witness‑box, who was also cross‑examined by the opposite party and there was no reason why the estimates prepared by him should not have been accepted by the learned Acquisition Judge. He further argued that the opposite‑party had not pro duced in evidence those officials who had prepared, checked and re‑checked the cost estimates relied upon by the respondent and for that reason those estimates could not be relied upon by the learn4d Acquisition Judge.

9. We have considered the arguments of both the learned counsel in the light of the evidence brought on record. It has come in the statement of Haji Ahmad, Overseer that he had prepared the cost estimates Exh. O. W. 1/1 to Exh O. W. 1/28 on the basis of the Composite Schedule of Rates of 1966‑67. He has also stated that he had taken rough notes regarding the superstructures, when he had visited the spot and it appears that the cost estimates Exhs. O. W. 1 / 1 to Exh. O. W. 1 /28 were prepared by him after wards on the basis of those rough notes, which have not been brought on record to allow us to have a look at them for comparison. In cross‑examination the overseer has stated that he had not determined the age of the superstructures and had not allowed depreciation charges, as he did sot believe in depreciation. He has also admitted in cross‑examination that he had not given the boundaries of each house in the estimates prepared by him, nor had he recorded the statement of anyone on the spot, nor had he served the respondents (appellants herein) with notices about the date of his spot‑inspection. He was privately paid by Mubaras Khan objector for the work done by him. In similar circumstances the estimates prepared by privately‑engaged overseas were not accepted by this Court in R. F. A. No. 64 of 1980 and R. F. A. No. 94 of 1978, already referred to by the learned counsel for the appellants.

10. One more fact of significant nature has also been noticed by us in this case and that is that after visiting the spot on 14th April, 1974, 28th April, 1974 and 5th may, 1974, as stated by Haji Ahmad, Overseer, and after taking rough notes the cost estimates Exh. O.W. 1/1 to Exh. O.W. 1/28 were prepared by the privately engaged Overseer some time later. Those estimates were, however, not enclosed with the objection petition which was forwarded by the Collector to the Court on 23rd September, 1976. The statement of the Overseer was recorded on 7th June, 1978 and during all this period with whom such estimates remained was a mystery for us. It has at least not come on record how and by whom the same were preserved. It was for the objectors to have clarified this position, nor bad the learned Acquisition Judge applied his mind to this fact, which alone was enough t create strong suspicious about the genuineness of such estimates.

11. For the reasons aforesaid, we are of the view that the cost estimates prepared by Haji Ahmad, Overseer were not reliable. Once those estimates were kept out of consideration, on the basis of being unreliable, then the only evidence which remained on the record was the Collector's award based, as it was on the estimates prepared by the Specialised agency of WAPDA, the copies of which were also brought on record. Those estimates were checked and re‑checked by responsible officers having specialised knowledge, such estimates, in similar circumstances, have already been relied upon by this court in earlier Judgments referred to above.

12. There was also no force in the argument of the learned counsel for the respondents that since the makers of the estimates relied upon by the appellants were not produced in Court, those estimates could not be take into consideration by the Acquisition Judge. The appellants are Semi Government Agency and the record of such estimates was kept by such Agency in the ordinary course of business. The documents of which proper record was kept could be produced by the person who was having possession of custody of such record. Those documents could be admitted into evidence and stood on different footing from the documents prepared and kept by the private persons or private Agencies. The authority cued by the learned counsel for the, respondents (P L D 1981 Kar. 553), being distinguishable on this ground, was not applicable to the facts of this case.

13. For the reasons aforesaid, we do not agree with the finding of the learned Acquisition Judge on issue No. 1 respecting re‑fixation by him of the compensation amount for built‑up property and the disputed well.

14. In the result, this appeal is accepted, the judgment and decree, dated 26th April, 1979 of the Acquisition Judge is set aside and the award made by the Collector is restored. We, however, make no order as to costs.

M. Z. M. Appeal accepted.

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