Muhammad Sadiq Vs Government of KP through Secretary Board of Revenue and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

R.F.A No.116-M/2024 Muhammad Sadiq Vs. Government of Khyber Pakhtunkhwa through Secretary Board of Revenue and others.

Present: Mr. Haq Nawaz, Advocate for Appellants. Mr. Kamal Khan, A.A.G for official Respondents.

Date of hearing: 21.01.2026

JUDGMENT

SABIT ULLAH KHAN, J:- This single judgment in the instant petition shall also decide the connected R.F.A No.117-M/2024 as both the matters are the outcome of same award No.06/2021 dated 06.04.2022 besides identical question of law and facts is involved therein.

2.Arguments heard. Record perused.

3.It transpires from the available record that for the purpose of “Construction of Tehsil Chakesar Playground, District Shangla,” the property including khasra Nos. 382 & 389, owned by the appellants, was acquired through the subject award. The rate of compensation of the appellant’s property was fixed @ Rs.4,15,212/- per kanal and they, being aggrieved, have filed References No.1/4 & 02/4 of 2022 u/s 18 of the Land Acquisition Act, 1894; however, the Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

same were ultimately dismissed by the learned Referee Court vide impugned judgments dated 23.10.2024.

4.Record shows that after filing of the references/ objections by the appellants/landowners, the same were duly contested by the respondents through written replies. Issues were framed by the learned Referee Court, evidence was recorded and local commission was appointed for spot inspection, which submitted its report, inter alia, regarding the nature and potentiality of the acquired land. However, in the impugned judgments, the learned Referee Court has neither discussed the evidence led by the parties nor considered the commission proceedings including the statement of CW-1 rather it has outrightly termed the references as not maintainable, mainly on the ground that the landowners had received the compensation amount without protest. By now, it is a well-settled law that the issue of determination of compensation of acquired land cannot be held as non-maintainable before the Referee Court solely based on the protest or lack thereof, by the landowners at the time of receipt of compensation but it must be judicially determined upon filing of objection/ reference under the Act of 1894. The very filing of a reference itself indicates that the landowners had not consented to receive the amount of compensation as determined in the award and in such Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

circumstances, it was not further necessary to withdraw the amount under protest, as the requirement of the first proviso to subsection (2) of section 31 of the Act of 1894, has sufficiently been complied with1. In said case, the apex Court has remanded the matter to the Referee Court for decision on merits. In another case2, the apex Court has held that the act of a landowner in moving a reference immediately after passing the award is itself proof of his non-consent to receive compensation on the basis of the award and consequently, the case was remitted to the Referee Court for decision on merits. Most recently, this Court, in the case3, has held that the very filing of a reference u/s 18 of the Act of 1894 was sufficient to construe protest within the purview of section 31(2) of the ibid Act and accordingly allowed the appeal filed by the landowner remanding the matter to the Referee Court for decision on merits, after recording pro and contra evidence. In this view of the matter, the impugned judgments of the learned Referee Court dismissing the references and that too after recoding of evidence and appointment of local commission are not sustainable in the eye of law.

5.Accordingly, these appeals stand allowed, the impugned judgments of the learned Referee Court dated Zardad Khan Vs. Govt. of NWFP (1987 SCMR 1387 2 Wali Ahmad Vs. Collector Land Acquisition and others (1985 SCMR 224) 3 Hazrat Wali Vs. Land Acquisition Collector Mardan and others (2020 CLC 1202) Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

23.10.2024 are set aside. Resultantly, References No.1 & 2/4 of 2022 shall be deemed pending before the learned Referee Court (Additional District Judge, Shangla), who shall decide the same by re-writing judgment, on merits, in view of the already recorded evidence and commission report strictly in accordance with law, after providing proper opportunity of hearing to both the parties. Since, the matter pertains to the year 2022, as such, the learned Referee Court is expected to decide it preferably within two months, if not earlier, in accordance with law. Record of the cases along with a copy of this judgment be sent to the learned Referee Court forthwith.

Announced

...Sd...

JUDGE

Sabz Ali/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN