' YAHYA AFRIDI, J.---By this single judgment, this Court intends to dispose of eight Appeals, as they all challenge the judgment and decree dated 16.9.2008 passed by the learned Additional District Judge/Lzafi Zilla Qazi, Malakand at Dargai and also because common questions of law are involved in all the appeals.
' The particulars of the said appeals are as follows:--
(1) R.F.A. No, 3/2009 titled `Shahzada v. Govt. Of N.W.F.P. Through DOR Batkhela, Malakand' ,
(2) R.F.A. No, 4/2009 Ahmad Said v. Govt. Of N.W.F.P. Through DOR Batkhela, Malakand' ,
(3) R . F . A . MS/2009 Waris Khan v. Govt. Of N. W.F.P. Through DOR Batkhela, Malakand",
(4) R.F.A. No, 6/2009 titled Attaullah Haq v. Haji Badei-uz-Zaman and others',
(5) R.F.A. No, 182/2008 titled 'Project Director NHA v. Muhammad Quresh and others',
(6) R.F.A. No, 183/2008 titled 'Project Director NHA v. Muhammad Saeed and others',
(7) R.F.A. No, 184/2008 titled 'Project Director NHA v. Sahibzada and others, and
(8) RFA No, 185/2008 titled 'Project Director NHA v. Waris Khan and 7 others' .
2. The brief and essential facts leading to the present appeals are that the National Highway Authority ("acquiring department") for the purpose of dualization of Toor (Bridge), situated near Sakhia Kot, Dargai, Malakand Agency requisitioned for acquiring property measuring 2 kanals, 131/2 marlas situated in `Mauza Mehrdin' near Sakha Kot, Dargai ("acquired property"). In pursuance thereof, notification under section 4 of the Land Acquisition Act, 1894 ("Act") was issued on 11.3.2005.
Thereafter, the acquired property was inspected and the proceedings for determining the market price thereof was finalized vide award No, 5, dated 17.8.2006 ("Award"). The market price so determined by the worthy Collector for the acquired property was Rs, 7558/- per marla. It would be pertinent to note that the compensation for the owners so determined in the Award was based on the sole registered sale-deed No, 27, dated 15.2.2005 (Ex.R.W. 1/2) recorded in the area, where the acquired property was situated.
3. The private land owners aggrieved of the compensation determined for the acquired property in the Award, moved references under the enabling provisions of the Act. The Referee Court in order determine and test the veracity of the compensation, so determined in the Award, constituted a commission comprising of M/s. Muhammad Younas, Advocate ("commission."). The commission submitted its report, wherein the market price so determined for the acquired property was Rs, 33,080/- per marla. The commission based its said determination on seven unregistered sale transactions of immovable properties, which had taken place between 11.8.2004 and 13.12.2005. The requisite transfer deeds and the statements of the locals of the area were also annexed with the report.
4. The acquiring department, feeling aggrieved of the report, objected in writing to the said commission report vide its application dated 24.7.2008. The objections raised therein hit hard at the manner and mode of determining the market price of the acquired property.
5. The referee Court, without deciding the objection petition filed by the acquiring department on the commission report, proceeded to frame issues based on the contested pleadings of the parties. Thereafter, evidence of the parties was recorded. Finally, the Referee Court vide its judgment dated 16.9.2008 passed a decree in favour of the owners by enhancing the price of the acquired property from Rs, 7558.13 to Rs, 33,080/- per mark with 6% simple interest and 15% compulsory acquisition charges and 2% transfer of property tax from the date of taking possession of the acquired property till the payment thereof.
6. Aggrieved thereof, all four private owners, have moved this Court in four separate appeals (RFA No, 3/2009 to RFA No, 6/2009). Similarly, the acquiring department also aggrieved of the impugned decision challenged the same through four appeals before this Court (RFAs No, 182/2008, 183/2008, 184/2008 and 185/2008). Hence, the present consolidated decision.
7. The valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
8. Before this Court renders its judgment on the merits of the case, it would be appropriate for the Court to first take up the objection of the learned counsel for the acquiring department that the referee Court had illegally proceeded with the reference Court had illegally proceeded with the references without deciding the objection petition dated.
24.7.2008 filed against the commission report.
9. The provisions provided in Order 26 of CPC relates to the issues arising out of commission being constituted by a Court. The same is very clear in its stipulation that the reason for constitution of a local commission is for the Court to decide a factual controversy, which requires physical inspection of the Court and the same is carried out through the agent of the Court. It is also to be taken into account that there is no clear and express provision provided under Order 26 of CPC, for any objection to the commission report being filed in writing by any party to the proceedings.
However, the Courts entertained the said objections under Rule 10 of Order 26 of CPC. The fact that the objections of a party were not decided prior to rendering a judgment would not always lead to setting aside the final decision. In cases, where the Court, while passing the final judgment addressed all the objections raised therein and rendered its definite findings on the same, the party cannot be said to be prejudiced and thus expose the final decision liable to be disturbed. In this regard reliance may be placed on arecent judgment of this Court in case titled Haji Sharaf Hussain v. Hail Tor Gul (2011 CLC 543).
10. In the present case, the referee Court below has not effectively addressed all the objections of the acquiring department taken in its application dated 24.7.2008. Hence, their case is surely prejudiced and requires judicial interference of this Court.
11. Lest this Court passes any definite finding on said objections, which may prejudice the party, it would be appropriate for this Court to refrain from rendering any such finding thereon.
12. Accordingly, for the reasons stated hereinabove, this Court, partially accepts the present appeals and sets aside the impugned judgments and decrees of the Referee Court and remand the appeals back to the Referee Court to decide tne references, after affording opportunity to the parties of a hearing, and while deciding the same references address all the objections railed by the acquiring department in their application of 24.7.2008. The needful be done within a period of six months, if not earlier, from the date of receipt of this judgment. The office of this Court is also directed to send the record of the cases immediately. No Order as to Costs. Judgment of Referee Court Set Aside/