Syed Iqbal Shah Vs National Highways Authority

Judgment Sheet

PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

R.F.A No. 123-A of 2010.

JUDGMENT

Date of hearing........................14/12/2017........................................ Appellant(s) (Syed Iqbal Shah etc) by Mr. Muhamamd Naeem Anwar Khan, Advocate...........................

Respondent(s)( National Highway Authority, through its Chairman and others) by Mr. Zahid Idrees Mufti, Advocate.....................................................................

SYED MUHAMMAD ATTIQUE SHAH, J:- By

this single judgment, this court intends to dispose of the following eight Regular First Appeals, as they arise out of Award No.5 dated 29.07.2008 and judgments and decrees of the learned District Judge/Referee Judge, Mansehra dated 26.04.2010 and 29.06.2010, whereby, four objection petitions No.7/4 and 9/4 of 2008, 2/4 and 1/4 of 2009 filed by private owners were disposed of and also that common questions of law are involved in all the appeals.

1.Syed Iqbal Shah etc Vs. National Highway Authority, through its Chairman, Islamad etc (RFA No.123-A/2010)

2.Collector Land Acquisition, NHA, Mansehra and others Vs. Syed Iqbal Shah (RFA Bo.376-A/2010)

3.Syed Rehman Shah Vs. Collector Land Acquisition, NHA, Mansehra and others (RFA No.124-A/2010)

4.Collector Land Acquisition, NHA, Mansehra and others Vs. Syed Rehman Shah (RFA No.375-A/2010)

5.Syed Shabbir Hussain Shah etc Vs. District Officer Revenue qua Collector, District Mansehra and others (RFA No.125-A/2010) 6. Collector Land Acquisition, NHA, Mansehra and others Vs. Syed Shabbir Hussain Shah etc(RFA No.373-A/2010)

7.Syed Yousaf Shah etc Vs. Collector Land Acquisition, NHA, Mansehra and others (RFA No.233-A/2010)

8.Collector Land Acquisition, NHA, Mansehra and others Vs. Syed Yousaf Shah etc (RFA No.374-A/2010)

2.Brief facts leading to the present appeals are that National Highway Authority required land for the purpose of construction of office building of Deputy Director Maintenance, Balakot. Thus, they requested to the acquiring authority i.e. Collector Land Acquisition, Mansehra for acquisition of land measuring 9 Kanals 5 Marlas comprised in Khasra No.2255/2/2, 2257/3/1 and 2257/3/4/1 situated in the revenue estate of Mansehra. After observing all the Codal formalities required under the Land Acquisition Act, 1894, the Collector, Land Acquisition, NHA, Mansehra finally issued Award No.5 on 29.07.2008.

The compensation so determined for the acquired land in the Award was Rs.229,299.20 per Kanal for ‘Rakkar’ kind of land, Rs.57,324.80 per Kanal for

‘Banna’ kind of land and Rs.28662.24 per Kanal for ‘Dakha Drakhan/Chiragh’ kind of land alongwith 15% compulsory charges.

3.The private owners of the acquired property, being aggrieved of the assessment of compensation determined in the Award, challenged the same by filing separate objection petitions under Section 18 of the Act ibid claiming that the compensation be enhanced to Rs.10,000,000/- per Kanal alongwith 15% compulsory charges and interest. The acquiring department contested the objection petitions by filing their written statements.

The learned Referee Court framed the following issues arising out of the divergent pleadings of the parties:

1.Whether objectors have got any cause of action?

2.Whether objectors are estopped to file the present petition/reference?

3.Whether objection petition is time barred?

4.Whether objection petition is incompetent in its present form?

5.Whether this court has got the jurisdiction to entertain the present reference?

6.Whether the reference is ased on malafide intention of the petitioners/objectors?

7.What will be the fate of the pre-reference proceedings before the land acquisition authorities?

8.What is the market value/potential value of the suit property?

9.Whether petitioners are entitled to enhancement in the compensation of the suit land, if so, to what extent?

10.Relief?

4.The learned Referee Court recorded evidence of both the parties as they wished to adduce in support of their respective claims. The learned Referee Court also appointed local commission on the request of the objectors, who submitted his report, which was objected to by the respondents. Subsequently, statement of local commission was also recorded as CW-1, who exhibited his report as Ex.CW 1/1.

5.After hearing learned counsel for the parties, the learned Referee Court, on considering the evidence of the parties, treated the entire acquired land as ‘Rakar’ kind of land and fixed compensation thereof as determined in the Award for ‘Rakar’ kind of land i.e. Rs.229, 299.20 per Kanal alongwith 15% compulsory acquisition charges and 6% simple interest from the date of Award.

6.The private owners and the acquiring department being aggrieved of the judgments and decrees passed by the learned Referee Court in all the above-mentioned four objection petitions filed their separate appeals before this Court.

7.Arguments of learned counsel for the parties heard and record perused.

8.Perusal of the record reveals that the learned Referee Court appointed local commission for determination of market value, nature of the acquired property, its potentiality and future prospects, who after conducting commission’s proceedings, submitted his report Ex.CW 1/1. The respondent-department filed their objections, however, it is astonishing to note that the learned Referee Court has neither confirmed the said report nor rejected the same. Thus, its fate remained undecided. Once learned Referee Court has appointed local commission for the said purpose and in consequence thereof report was submitted, then it was under legal obligation to have rendered its findings thereupon. If the learned Referee Court was of the view that report of the local commission was not serving the purpose, then it should have appointed another Commission. It is by now settled that when the commission fails to conduct the proceedings in accordance with the terms of its appointment, then the learned Referee Court has to set aside its report and under the law it is obliged to appoint fresh local commission for the same purpose.

Reliance is placed on case titled ‘Rashad Khan Vs.

Karachi Development Authority’ (PLD 1989 Karachi 75) wherein it is held that;

“In view of this situation it has become necessary to consider whether another commission can be ordered to achieve something which the previous one failed in achieving. The object of issuance of a Commission for local investigation under Order 26, Rule 5, C.P.C is to seek elucidation of any matter in dispute in a suit and commissions are issued in all cases in which local investigation is deemed requisite or proper for such purpose. Law does not restrict this power in any way and commissions may be issued more than once if that be requisite or proper. I am, therefore, inclined to appoint another commission for such purpose in the context of which Nazir of this Court is once again appointed Commissioner to make site inspection for determination of either or both the above locations and in relation thereto he may seek assistance, once again, from the relevant officers of the C.D.C office as also the survey department.”

In another case titled ‘Siranjam Khan Vs.

Chairman National Highway Authority, Islamabad’ (2016 CLC 216 (Peshawar), it is further held that;

“It is pertinent to mention that for determination of compensation under section 23 of the Land Acquisition Act, 1894, the Court has to consider the evidence brought on record by the parties and in addition to one year average has also to consider potentiality in further prospective of the land. Various facts including location of acquired land, sale price of adjoining land, its potentiality and likelihood of development and improvement, report of Local Commissioner are to be taken into consideration. The appointment of

Local Commissioner in like cases are necessary as merely averages cannot be safely relied upon for the simple reason that general tendency of the vendees to show smaller amount as price of the land purchased by them in order to avoid imposition of heavy gain tax and stamp duty etc.

It is by now established that the appointment of Local Commissioner has become inevitable in cases of enhancement of compensation and Courts are required to consider the case for the purpose at the proper stage in order to avoid remand and to prolong litigation for considerably long time.”

Apart from the above both the learned counsel for the parties argued the present cases on merits, however, this Court at the moment restrains itself to give any findings on their merits, lest it may not prejudice the case of either of the parties before the learned Referee Court.

10.Thus, keeping in view the facts and circumstances stated hereinabove, this Court partially accepts the appeals filed by the appellants, sets aside the decision of the trial Court and remands the cases back to the Referee Court to proceed with the references strictly in accordance with law in order to arrive at a fair rate of compensation for the acquired land after taking into consideration all the material available on record including the report of

commission and thereafter to decide the references according to law. The learned Referee Court, if feels that appointment of another local commission is necessary, then it is at liberty to appoint afresh local commission keeping in view the attending circumstances, in the larger interest of justice.

The Referee Court is further directed to ensure that the references are concluded within a period of sixty days, after the receipt of record, as the same pertain to the year 2008.

JUDGE

Announced.

Dt.14/12/2017.

/*M.Saleem*/