Fazal Rahim Khan vs Land Acquisition Collector

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR.

JUDICIAL DEPARTMENT

JUDGMENT

Date of hearing. __________13.01.2015_________________ Appellant (Fazal Rahim Khan etc.) by Mr. Shams ul Hadi, Advocate

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

MUHAMMAD DAUD KHAN, J.- Through this

appeal under section 54 of the Land Acquisition Act, 1884, appellants have challenged the judgment and decree dated 25.6.2009, passed by learned Land Acquisition Judge/Additional District Judge-II, Charsadda, whereby Reference Petition of appellants was dismissed.

2.Briefly stated, facts of the case are that land of Mouza Dheri Shah Bara, Tehsil and District Charsadda, was acquired for the construction of

Islamabad/Peshawar Motorway (Guide Bank) under Land Acquisition Act, 1884 (hereinafter referred to as the Act) vide Notification No.224-30/CLA dated 25.7.2004.

3.Notices under sections 9 and 10 of the Act were issued to the interested person for 26.4.2005, whose land has been acquired. On appearance, the interested person, divided into two groups, i.e. some persons demanded that award should be on the basis of ‘Qabza Hissardari Bar Moqa’ while the other group including appellants demanded the same on the basis of ‘Malkiat’ (ownership). After hearing the parties, the learned Collector, respondent No.1 announced the apportionment, vide impugned Award, relevant portion of which is reproduced as below:-

“Apportionment

11.The land owners shall be entitled for compensation of their due shares according to possession on the spot subject to their rights in the ownership column of ‘Register Haqdaran Zamin’ of Mauza Sarikh Bela, Tehsil and District Charsadda. The acquittance Rolls shall be prepared in quadruplicate by Revenue Staff of Tehsil Charsadda.

4.Feeling aggrieved, the appellants made application of Reference u/s 18/30/31 of Act to the Collector, who referred the matter to the Referee Judge i.e. Land Acquisition Judge, Charsadda for decision.

The application of Reference was contested by rival interested persons wherein they raised legal as well as factual objections. In the light of divergent pleadings, the Referee Judge framed six issues alongwith relief.

5.Both the parties produced their evidence and on conclusion of trial, the learned Referee Judge was of the view that as appellants are out of possession and could not deliver the possession of the land to the acquiring authority, they were held not entitled for compensation and dismissed the objection vide its judgment and decree dated 25.6.2009. Hence, the instant Appeal.

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

7.The only question that needs to be dealt with by this court is whether only those land owners shall be entitled for compensation of their share, who are found in possession of the land on the spot and whether co- owners, who are not owner in possessions, are not entitled for the compensation?

8.To resolve this question, we have to determine the legal position of co-sharer, who is out of possession of the property.

9.It is well settled principle of law that in case of joint immoveable property, each co-sharer is interested in every inch of the subject matter irrespective of the quantity of his interest. Reliance can be taken in the case of Ali Gohar Khan Vs. Sher Ayaz and others (1989 SCMR 130). Besides, the Supreme Court of Azad Kashmir in the case of Beeroo vs. Said Bibi (1990 CLC 164), has clearly held that peaceful possession of co-sharer, for whatever length of time, would not be adverse to those who were out of possession of the property. Similarly, the above

principle of law was further followed by the Hon’ble Apex Court in the case of Jan Muhammad vs Abdur Rashid (1993 SCMR 1463) and Roshan Akhtar vs.

Muhammad Boota (2000 SCMR 1845), wherein it has been held that possession of one co-sharer in law is the possession of all co-sharers. Likewise, the Hon’ble Supreme Court of Pakistan in the case of Syed Shabbir Hussain Shah and others Vs. Asghar Hussain Shah and others ( 2007 SCMR 1884), it has been held:

“When property was joint and not partitioned, than every co-owners/co- sharer would be considered to be in possession of each inch of un- partition land according to his share. In the light of above dictum of law the compensation given only those owner who are possession of land and deprived the other co-owner is illegal, discriminatory and is not sustainable in the eyes of law”.

10.Taking guidance from the dicta laid down by the superior Courts, we are of the firm-view that all co- sharers are entitled for compensation according to law and thus the award announced by the learned Collector with regard to apportionment, which has been upheld by the learned Additional District Judge-II, Charsadda

is illegal and not sustainable in the eyes of law, hence, is liable to be set aside.

11.The other view taken by the learned Referee Judge that appellants being out of possession of their joint property could not be able to deliver the possession of the same is also misconception of law as Sections 16 and 17 of the Act, provide the procedure for taking the possession of land from land owner. For convenience, sections 16 and 17 of the Act are reproduced below:-

16.Power to take possession.—When the Collector has made an award under Section 11,, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances.

17.Special Powers in cases of urgency.—

(1)In case of urgency, whenever the Provincial Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), take possession of any waste or arable land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.

(2)Whenever, owing to any sudden, change in the channels of any navigable river or other unforeseen emergency, it

becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river side or ghat station, or of providing convenient connection with or access to any such station, the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and within the previous sanction of the Provincial Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances. Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty- eight hours’ notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.

(3)In every case under either of the preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and tree (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.

(4)In the case of any land to which, in the opinion of the Provincial Government, the provision of sub-section (1) or sub- section (2) are applicable, the Provincial Government may direct that the provisions of section 5-A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at

any time after the publication of the notification under Section4, sub-section Accordingly, this appeal is accepted, the impugned judgment and decree dated 25.6.2009 of the learned trial Court is set aside and the Reference Petition filed by the appellants is accepted with no order as to costs.

Announced CHIEF JUSTICE

JUDGE