Fazal Moula etc vs Land Acquisition Collector

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR.

JUDICIAL DEPARTMENT

JUDGMENT

Date of hearing. ______13.01.2015______________ Appellant (Fazal Moula etc.) by Shams ul Hadi, Advocate.

Respondent(L.A.C. etc.) by Mr. Sikandar Rashid & Aftab Ahmad, Advocates

MUHAMMAD DAUD KHAN, J.- Through this

Regular First Appeal under section 54 of the Land Acquisition Act, 1884, the appellants have challenged the judgment and decree dated 25.9.2009 passed by learned Additional District Judge-IV/Land Acquisition Judge, Charsadda whereby the learned Referee Judge dismissed the reference of the appellant for enhancement of the amount of compensation. Similarly in the connected RFA No.23/2009, the respondents are also aggrieved from the judgment of the Referee Court with regard to the same award, hence, both the matters

are decided through this single judgment in RFA No.212/2009.

2.Briefly stated, facts of the case are that the suit land in village Dheri Shahbara Tehsil and District Charsadda was acquired for the construction of Islamabad-Peshawar Motorway Project (Guide Bank) under Land Acquisition Act, 1884 (hereinafter referred to as the Act) vide Notification No.224-30/CLA dated 25.7.2001. Thereafter, notices u/s 9 and 10 of the Act were issued to the interested persons for 26.4.2005.

3.On appearance, the objectors submitted their objections. On conclusion of proceeding, the learned Collector determined the compensation for chahi land @ Rs.4500 per marla as per award announced on

4.Dis-satisfied by the said compensation, the appellants made application for Reference u/s 18 of the Act and prayed for enhancement of compensation from Rs.4500/- to Rs.10,000/- per marla, which matter ultimately reached the Referee Court i.e. learned Additional District Judge-IV, Charsadda. The respondents on appearance submitted written statement.

Issues were framed and evidence of the parties was recorded. The learned Referee Judge, after hearing the

learned counsel for the parties, accepted the reference of the appellants and enhanced the amount from Rs.4500/- to Rs.10,000/- per marla vide impugned judgment dated 25.9.2009.

5.Feeling aggrieved the appellants i.e. the affected landowners and the acquiring department both have preferred these Regular First Appeals accordingly.

6.We have heard the learned counsel for the parties and have also gone through the record.

7.It appears that although the appellants’ claim for enhancement of compensation was granted but their express dis-satisfaction is that compensation for the acquired land in the adjacent village ‘Sreek Bela’ was enhanced upto Rs.12750/- per marla by this Court in RFA NO. 107 decided on 06.02.2006; thus they are also entitled for enhancement of the compensation.

8.Perusal of the record would reveal that after Notification u/s 4 of the Act, the Notices u/s 9 and 10 were served upon the appellants. On compliance of said notices, they submitted their respective objections regarding the due compensation to the Collector through objection petition on 29.5.2006; (available on record) through which the appellant made claim of Rs.10000/- per marla as compensation pursuant to

Notice u/s 9 by the Collector. The learned Referee Judge, while deciding the instant Reference, fixed the compensation at Rs.10,000/- per marla as prayed for by the appellants. For convenience, the last para pertaining to prayer in the objection petition filed by appellants before Collector is reproduced as under:-

9.In order to clarify the matter, sub-section (1) of section 25 of the Act is reproduced as under:-

25.Rules as to amount of compensation:-

(1)When the applicant had made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the court shall not exceed the amount so claimed or be less then the amount then the amount awarded by the Collector under section-11.

From the bare reading of the above section, it seems to be mandatory in nature restricting the court to award the compensation between two limits i.e. neither to exceed the amount so claimed nor below the amount awarded by Collector u/s 11 of the Act. The Hon’ble Supreme Court of Pakistan in the case of “Land

Acquisition Officer Vs. Gul Muhammad (PLD 2005 SC 311), has held that:-

“Provision of Section 25 of Land Acquisition Act, 1894 had limited jurisdiction of Court in the matter of enhancement of compensation and no question of waiver of such provisions would arise”.

This principle of law has been followed by this Court in the case of Malik Mumtaz Khan Vs. Water and Power Development Authority (2011 CLC 1586), wherein it has been held that:-

“Where the party had claimed certain amount before the Collector in pursuance of section-9 of the Land Acquisition Act, 1884, he could not claim the larger amount than he had claimed before the Collector”.

10.The main contention of learned counsel for appellants is that one set of the land owners were allowed compensation for their acquired land at the rate of Rs.12750/- per marla in the same award by the Referee Judge so in the light of dictum settled by the Hon’ble Apex Court in the case of Saddaqat Ali Khan Vs. Collector Land Acquisition (PLD 2010 SC 878), the appellants are also entitled for the enhancement of compensation. We are not agreed with the contention of the learned counsel for the appellants, as in the above

referred case, the appellants had neither filed objections u/s 9 of the Act nor claimed any specific amount in the proceedings, whereas in the instant case, the appellants have taken the claim by filing objection petition u/s 9 of the Act. Moreover, in Saddaqat Ali Khan’s case (supra), section 25 of the Act was not discussed. In the instant case, the appellants claimed enhancement of amount of Rs.10,000/- per marla, and for its further enhancement, a statutory clog is available in shape of section 25 (1) of the Act. Even otherwise, no person could be allowed to go beyond his pleadings. Reliance can be placed on the case of Muhammad Wali Khan vs. Gul Sarwar Khan (PLD 2010 SC 965).

Besides, the Hon’ble Apex Court in the case of Abrar Ahmad vs. Irshad Ahmad (PLD 2014 SC 331), has held that no one could be allowed to set up a new case beyond the scope of his pleadings. This dictum of law has been adopted by this Court recently in the cases of Muhammad Akram vs. Razia Sultana (2013 CLC 1048), Mst. Wadegai vs. Mst. Khayal Jana (2013 YLR

611)and Muhammad Amir Khan vs. Musharaf Khan (2014 YLR 931), wherein it was observed that departure from pleadings is not permissible.

11.In view of the above, we find nothing wrong with the findings of learned Referee Court and would maintain the impugned judgment/decree, being based on proper appreciation of evidence available on file.

12.Accordingly, the appeal in hand fails, which is hereby dismissed with no order as to costs.

Announced. CHIEF JUSTICE

JUDGE