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Civil Petition No. 123‑R of 1984, decided on 7th April, 1986.

(On appeal from the judgment and order of the Peshawar High Court, Circuit Bench, Abbottabad in R.F.A. No.229 of 1979, dated 14‑2‑1984).

‑‑‑Art. 185. (3)‑‑Land Acquisition Act (I of 1894), S.12‑‑Civil Procedure Code (V of 1908), O.XVII, R.3‑‑Petition for leave to appeal‑‑Acquisition of petitioner's house‑‑Value fixed by Additional District Judge against award made by Collector, set aside by High Court who restored order of Collector by accepting appeal filed by Department‑‑Petitioner urged that evidence produced by him before Additional District Judge was not rebutted by Department and that High Court erred in relying upon report of Overseer on which Collector had based his view because that report had not been produced by Department as evidence before District Court and therefore, petitioner's evidence had gone un-rebutted before that Court‑‑Contentions raised by petitioner having force, leave to appeal granted.

Muhammad Afzal Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

‑The facts giving arise to this petition are briefly that two houses, bearing Nos.418 and 423 which belonged. to the petitioner', were acquired for the construction of Tarbela Dam. The award was announced by the Collector, Haripur on 21‑10‑1971. The compensation award by the Collector for houses in question was as follows:‑

(a) House No. 418 Rs.16,427.30

(b) House No. 423 ... Rs. 7,792.27

2. The petitioners challenged this award under section 18 of the Land Acquisition Act in the Court of the learned Additional District Judge, Haripur. He claimed the value of the two houses to be as follows: ‑

For House No. 418, Rs.30,000 and

For House No. 423, Rs.15,000.

In support of his claim the petitioners produced Malik Haji Ahmad, Overseer CW‑1. He also appeared himself as CW‑2. The respondent Department was given several opportunities by the Court to produce its evidence in rebuttal, but failed to avail of the same and did not produced any evidence. It did not even produce the 'report' of the Overseer of the WAPDA, on which the Collector Haripur had based his estimation of the value of the two houses. The learned Additional District Judge, therefore, proceeded under Order XVII, rule 3, C.P.C. and fixed the value of the two houses as under:

House No. 418 Rs.26,156.25

House No. 423 Rs.15, 000.00

3. The respondent‑Department filed an appeal before the Peshawar High Court which was accepted and it set aside the aforementioned order of the Additional District Judge, holding the value fixed by the Collector.

Hence the present petition for leave to appeal.

4. The learned counsel for the petitioners urged before us that since the Department had not produced any evidence whatsoever in the, Court of learned District Judge, Haripur in rebuttal of evidence produced by the petitioners with regard to the two houses acquired by the Government, the learned High Court had erred in relying upon the report of the Overseer of WAPDA, on which the Collector had based his view, because even that report had not been produced by the respondent‑Department as evident before the learned Additional District Judge, Haripur and the petitioners' evidence had gone unrebutted before that Court. This contention appears to have some force and we, therefore, granted leave to appeal in this case.

5. Security for cost of the respondents in the sum of Rs.1,000.

6. To be heard on the present record with liberty to the petitioners to file additional documents, if any.

M.Y'.H. Leave granted.

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