Nazir Muhammad VS Collector Land Acquisition Haripur

2013 C L C 1060

[Peshawar]

Before Waqar Ahmad Seth, J

NAZIR MUHAMMAD and another----Appellants

Versus

COLLECTOR LAND ACQUISITION, HARIPUR and 2 others----Respondents

Regular First Appeal No.312 of 2010, decided on 6th March, 2013.

(a)Land Acquisition Act (I of 1894)---

----S. 23---Civil Procedure Code (V of 1908), O.XXVI, R.9---Compensation, determination of--- Criteria---Objection petitions for change of classification and enhancement of compensation was dismissed---Determination of fair compensation and market price of acquired land---In absence of evidence on record the determination of fair compensation was impossible---Referee Court neither referred to any document i.e. mutation, one year average or any assessment carried out by the Patwari Halqa nor any Local Commissioner had been appointed for ascertaining the market value of acquired land---Impugned judgment and decree of referee court was set aside and objection petition was remanded to the referee court for fresh decision.

(b)Land Acquisition Act (I of 1894)---

----S. 23---Civil Procedure Code (V of 1908), O.XXVI, R.9---Compensation, determination of--- Local Commission, appointment of---Matters to be considered in determining compensation--- Non appointment of local commissioner for ascertaining the kind and market value of acquired land----Effect---Nothing was available on record as to how the nature of acquired land and its market value was ascertained---Referee Court left with no option except to have appointed a Local Commission for ascertaining the kind and market value of the acquired land---No impediment existed in appointing Local Commissioner when evidence so produced was insufficient to sort out the market value of the acquired land---Referee Court had not followed the law on the subject and decided the objection petition in hasty manner---Judgment and decree of Referee Court was set aside---Objection petitions were remanded to Referee Court for decision afresh after appointment of local commission to sort out the location, kind and nature of acquired land and its fair compensation.

Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others PLD 2009 SC 16 rel.

Qazi Rasheed Ahmed Arshid for Petitioner.

Syed Amjid Ali Shah for Respondents.

Date of hearing: 6th March, 2013.

JUDGMENT

WAQAR AHMAD SETH, J.--- Land Acquisition Collector, Haripur, on the request of Director-General, Project Management Organization, Joint Staff Headquarter, Chaklala Rawalpindi acquired the suit-land through Award No.15 dated 3-9-1994 and awarded the compensation amount. Feeling aggrieved, the affectees/objectors preferred objection petitions for change of classification and enhancement of compensation amount, which were referred to the referee Court for adjudication. The learned referee Court after recording evidence and hearing the parties dismissed the objection petitions on 22-5-2004. Feeling aggrieved, the affectees/objectors preferred appeals, which were decided as under:--- "The learned counsel for the parties agreed that the present appeals bearing R.F.As. Nos.47, 48 of 2004, 49, 50 and 82 of 2005 be allowed and the cases be remanded to the learned referee Court with the direction to work out the market value of the land acquired through Award No.15 dated 3-5-1994 in the light of section 6 r/w section 23 of he Land Acquisition Act from the date of actual possession and thereafter to decide the cases in accordance with law.

Accordingly, we accept the appeals, set aside the impugned judgments/decrees of the learned referee Court and remand the cases to the learned referee Court with the direction to determine the market price of the acquired land at the time of declaration under section 6 read with section 23 of the Land Acquisition Act, 1894 i.e. from the date of taking actual possession of the land and thereafter to decide the cases afresh on merits and hearing them in accordance with law".

2.However, it is strange that during remand proceedings the learned referee Court has endorsed in para.6, which is as under:---

"On attendance, learned counsel for the parties agreed that they do not want to produce any further evidence as according to them, the available evidence on the record is sufficient to decide the case, as per directions of remand order dated 8-6-2010 of the Hon'ble High Court".

3.The learned referee Court after hearing the learned counsel and perusal of available record partially allowed the objection petitions vide impugned judgments and decrees dated 31-

7-2010. Feeling dissatisfied, the appellants/objectors filed R.F.As. Nos.311, 312, 313,329, of 2010 whereas the acquiring department has filed R.F.As. Nos.338, 339, 340, 341 and 342 of 2010. Since all the appeals have arisen out of one Award, impugned consolidated judgments and decrees and having involved common questions of law and facts therein, therefore, these are proposed to be disposed of by this single judgment.

4.Learned counsel for both the parties stated at the bar that directions of appellate court rendered in the previous round of litigation were not complied with by the parties and the referee Judge and in absence of proper and relevant evidence assessment of fair compensation is impossible.

5.Arguments heard and record perused.

6.Admittedly, this Court, with the mutual consent of the learned counsel for the parties, while remanding the cases back to the referee Court passed specific directions in order to enable the Court for arriving at just and proper decision of cases, which are apparently are found not followed either by the parties or the trial Court in its letter and spirit and in absence of sufficient evidence on record the determination of fair compensation is impossible. In the instant cases neither the learned court referred to any document i.e. mutation, one year average or any assessment carried out by the Patwari Halqa nor any Local Commissioner has been appointed for ascertaining the market value of the acquired land. There is nothing on record that on what standard or evidence, the price of acquired land has been assessed by the learned referee Court. Section 23 of Land Acquisition Act is as under:---

"23. Matters to be considered in determining compensation (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration--

Firstly, the market value of the land on the date of the publication of the notification under section 4, subsection (1).

Principles laid down by the superior Courts for assessment of market value of acquired land are:---

(i)one year average of similar nature of land situated in the same vicinity;

(ii)future potentiality of suit-land; and

(iii)through appointment of local commissioner.

7.There is nothing on record that through which it could be ascertained the nature of acquired land and its market value. Hence, learned referee Court had left with no option except

to have appointed a local commission for ascertaining the kind and market value of the acquired land, because it is yet to be determined that whether the suit-land is a commercial one or not?, and, what is the market value of the acquired land?. These two questions require spot inspection. There is no impediment in appointing local commissioner when evidence so produced is insufficient to sort out the market value of the acquired land. In this regard wisdom can be drawn from case "Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others" reported as (PLD 2009 SC 16), the relevant portion reads as under:--- "Local Commissioner, appointment of---Held, there was no impediment in appointing a Local Commissioner when the evidence brought on record alone was not capable to resolve the controversy---Recourse to O.XXVI, R.9, C.P.C. could be made even without an application by any party".

8.The learned referee Court also appears to have not followed the law on the subject and decided the objection petition in hasty manner. In the facts and circumstances of the case, the impugned judgments and decrees of referee Court be set aside and the objection petitions be remanded to the referee Court for decision afresh after appointment of local commission to sort out the location, kind and nature of the acquired land and its fair compensation as directed by this Court.

9.In the light of the above, all the appeals are allowed. Impugned judgments and decrees of learned referee Court are hereby set aside and the objection petitions are remanded back to the referee Court for decision afresh after appointment of local commissioner and in the light of previous remand order. The needful be done within two months preferably. Parties are directed to appear before the referee Court on 15-3-2013.

JJK/134/P Case remanded.