Land Acquisition Collector VS Banaris Khan

I

@ry )

JT]DGMENT SHEET

PESHAWAR HIGH COURT ABBOTTABAD BENCH

JADICIAL DEPARTMENT

R.F.A No.44-N2018.

JUDGMENT

Date of hearing 24.09.2018.

Petitioner by: Mr. Shahid Aziz, Advocate. Respondents by: IvIr. Muneer Hussain Lughmani, Advocate.

SYED MUHAMMAD A AE SHAH. The

appellants through the instant appeal have called into question the validity and legality ofjudgment and decree passed by the learned Referee Judge/Additional District Judge-IV, Abbottabad dated 11.10.2017, whereby he while partially accepting the objection petition of the respondents/objectors, held them entitled to receive compensation at the rate of Rs. 1,50,000/- per Marla along with 15 o% compulsory acquisition charges and 6% simple interest from the date of taking possession till payment.

7 Brief facts of the case are that the land of the petitioners comprised in Khasra Nos. 933/7681211 arrd 93317681213 of Mauza Tannan, Tehsil & District Abbottabad was acquired by the appellants for expansion of KKH road through award No. l0 dated 04.10.2010. In t

the said award the compensation of the acquired land was fixed at the rate of Rs. 19004/65 per Marla. Feeling aggrieved, the land owners/respondents filed objection petition claiming therein that the price of land is much higher than the one assessed by the acquiring department keeping in view the location and future potentiality and prayed for fixation of price of acquired land as Rs.60,00,000/- per Kanal. The said objection petition was referred to the leamed Referee Judge for adjudication. The leamed Referee Judge, on receipt of objection petition, summoned the respondents who put appearance and contested the same on various legal as well as factual grounds. After framing issues and recording pro and contra evidence, the leamed Referee Judge partially allowed the objection petition through impugned judgment and decree dated 11.10.2017, by enhancing the amount of compensation from Rs.19004/65 per Marla to Rs.1,50,000/- per Marla with consequential acquisition charges, hence the instant R.F.A.

3.Today, at the very outset ofthe proceedings, leamed counsel representing the respondents have challenged the very maintainability of present RFA being barred by time. He argued that the leamed Judge Referee t

J

Court passed the impugned judgment and decree on 11.10.2017, whereas the appellant applied for the certified copies of the same vide reoeipt No. 1448 dated 26.01.2018, which were delivered to him on 03.02.2018.

Thereafter, he filed the instant RFA on07.02.2018, which is barred by 22 days as Article 156 of the Limitation Act, 1908 provides a period of90 days for filing appeal against the judgment and decree of Referee Judge. He funher argued that no sufficient cause has been shown by the appellant for the condonation ofthe said delay and prayed for dismissal of the instant RFA being barred by time.

4 Against that, leaned counsel for the

appellants has referred to his application for condonation of delay and submitted that delay in such like cases is immaterial because in such like cases, prior permission from the high ups is required which usually consumed sufficient long time and prayed for accepting his application for condonation of delay.

5.Perusal of record would unfold that the impugned judgment was passed by the leamed Referee Judge on ll.l}.2}l7. The appellant applied for the attested copies of the same vide receipt No. 1448 dated 26.01.2018 i.e. after 107 days, which were delivered to t

him on 03.02.2018, while the present RFA was filed on 07.02.2018. Thus the present appeal is barred by 22 days.

Anicle 156 of the Limitation Act 1908 provides a period of 90 days for filing an appeal before the High Court against the judgment and decree passed by a Referee Judge and in case ofany delay in filing the appeal, the delay of each and every day has to be sufficiently explained while filing application for condonation ofdelay under Section 5 of the Limitation Act, 1908. Admittedly, in the instant case, the appeal has been filed after ll2days ofpassing of the impugned judgment and decree, which is barredby 22 days. The sole ground/reason assigled by the appellant for such delay in his application for condonation of delay is that the time was consumed in obtaining departmental approval and since valuable rights of the appellant/department are involved, therefore, the delay is immaterial. I am afraid, this argument of leamed counsel for the appellants would not help him because it has long been settled by the Superior Courts that in cases particularly pertaining to Land Acquisition the govemment or its department as a party would be treated alike just an ordinary litigant and the govemment could not be entitled for any preferential treatment and in this

I

respect reliance is placed on"Collector Land Acquisition Chashma Righl Bank Canal Project, lfAPDA, D.I.

Khan Vs. Ghulam Sadiq and others (2002 SCMR 677)".

In a similarly situation in the case of "Government of Pakistan Vs. Sarkar and others (1997 CLC 434)" this Court has held:- "The impugned judgment and decree were passed on 11.05.1993, the application for certi/ied copies was moved on 18.04.1994, the copies were supplied on 05.05.1994 and this appeal was filed on 27.07.1994. The appeal is thus barred by 3j4 days. It is not only a case ofindifference on the part ofthe counselfor the appellants in the trial Court but also a case of gross negligence on the part of the appellants and their representatives to keep themselves in touch with the progress ofthe case. On both counts, the main ground for condonation of delay cannot be termed as 'sufficient cause'within the scope of section 5 of the Limitation Act. Reference in this context may be made to Jahanda v. Maqbool Hussain etc. (1908 SCMR 126). h is needless to mention that in the matter of limitation the Government is at par with an ordinary t

litigant. Besides, the appellants have not explained every day ofthe delay. A case for condonation of delay is thus not made out."

The said view has been further re-affirmed by the august Supreme Court of Pakistan it "Food Department Gujranwala Vs. Ghulam Farid Awan (2010 SCMR 1899), Cholistan Co-Operative Wood Developmenl Marketing Union Ltd. Bhawalpur Vs.

Bashir Ahmed and another (1983 SCMR 1105), Commissioner Income Tax Vs. Zabeel Palace Hotel Peshawar (2011 SCMR 361), Federation of Pakistan through Secretary Ministry of National Food Security and Research Vs. Agritch Limited (2016 PLD SC 676) and Government of Pakistan Vs. Frontier Chemical industries Ram Bagh Mardan (2016 SCMR 1410).

Consideringthe above aspect of the case, plea of the leamed counsel for the appellants that the impugned decision on merits suffered from legal infirmity would lose all its significance, because Section 3 of the Limitation Act, 1908 clearly provided that every suiUappeal preferred and application made after period of limitation prescribed therefor by the first schedule shall be t

dismissed. For sake of convenience, Section 3 of the Limitation Act, 1908 is reproduced:- 3, Dismissal "f suit, etc.

instituteil, etc. after perioil of limitation ---Subject to the prooisions contained in sections 4 to 25 (inclusioe), eoery suit instituted appeal preferred, anil application made afer the period of limitation prescribed therefore by the First Schedule shall be dismissed although limitation has not been st up ns a defena."

Reliance is also placed on "Collector Land Acquisition Chashma Right Bank Canal Poiect, WAPDA, D.I Khan and others vs. Ghulam Sadiq and others (2002 SCMR 677)".

6 Since the appellant has failed to explain the delay ofeach day satisfactority in filing ofpresent appeal' therefore, the same is dismissed being time-barred'

ANNO UNCED

J //;r{b

TuJailf Hon'ble Juslice Syd ifulunnod Auiqw Stuh.