Zafrullah Khan vs Chairman NHA etc

JUDGMENT SHEET

PESHAWAR HIGH COURT D.I.KHAN BENCH

JUDICIAL DEPARTMENT

RFA No. 94-D of 2011 Date of hearing 29.01.2015 Appellant / petitioner (Zafarullah Khan and others) by Mr. Jamal Abdul Nasir Advocate Respondent (Chairman NHA and others) by Mr. Amir Muhammad Khan Baloch Advocate

MUHAMMAD GHAZANFER KHAN J.-This appeal is directed against the judgment and decree dated 4-10-2011 passed by learned Referee Judge/Additional District Judge-VI D.I.Khan, whereby the objection petition of appellants filed under section 18 of Land Acquisition Act, 1894 was dismissed.

2.Brief facts of the case are that the respondents after acquiring certain property for construction of road from D.I.Khan to Serai Gambeela Project No.55, while constructing the road the respondents forcibly demolished the bricks kiln alongwith the bricks, woods, Paka House which was built for the labourers and the parts of machinery which was available in the factory was also damaged.By this

illegal act of the respondents, appellants sustained a loss of Rs. 3,13,66,750/-.

3.To recover the above said damages, the appellants brought a civil suit which was entrusted to Civil Judge-VI D.I.Khan for adjudication.

4.After the respondents were summoned and filed their written statement, the respondents also moved an application for rejection of plaint, which was dismissed by the trial court vide order dated 21-11-2008.

5.The respondents feeling dis-satisfied of the above said order preferred revision petition before this Courtwhich was accepted on 7-10-2010 and set aside the order of trial court dated 21-11-2008 with directions to the respondents/Collector to treat the plaint of the appellants as an objection petition and refer it under section 18 of the Land Acquisition Act 1894 to the Referee Court for adjudication on merits.

6.In compliance of the orders of this Court, the case was referred and entrusted to Referee Judge/Additional District Judge-VI D.I.Khan for disposal who after hearing the parties dismissed the reference on the sole ground of limitation vide his order dated 4-10-2011, hence the present appeal.

7.We have heard learned counsels for the parties and gone through the record of the case.

8.The only legal question before us is that whether in the light of clear cut orders of this Court that the lis should be decided on merits, the Referee Judge wasempowered to take exception to that order or he was bound to follow the orders of this Court in letter and spirit. Secondly whether the Referee Judge can decide the matters extraneous to the reference?

9.Careful perusal of the order passed by their Lordships of this Court transpires that the Referee Judge was directed to dispose of the matter in hand on merits but the Referee Judge has skipped over the jurisdiction vested in him under law by refusing the remedy to the appellants merely on technical grounds. Furthermore, the order passed by the Referee Judge is also in negation of the directions of this Court which amounts to delinquency. Besides, the Referee Judge cannot turn beyond the reference. The Collector has referred the matter to the Referee Judge without any objection qua the limitation, hence the Referee Judge was precluded to adjudge the matter not referred to him. In this respect,

wisdom can be derived from case law reported in PLJ 2005 Supreme Court-262.

10.Sequent to above discussion, we accept this appeal, set aside the impugned judgment and decree of trial/referee Judge and remand the case to Referee Judge to decide the same purely and strictly on merits.

ANNOUNCED JUDGE

JUDGE