SHAHID MUBEEN, J. --- The appellants have instituted this Regular First Appeal under section 54 of the Land Acquisition Act, 1894, praying therein that the judgment and decree dated 13.03.2010 passed by the learned Senior Civil Judge, Attock be set aside and Award No, 7 dated 08.06.2004 be restored and maintained, in the interest of justice.
2. Briefly the facts of the case as discernable from this appeal are that the appellant land measuring 04-kanals, 03-marlas comprising khasra No, 1079 khewat No, 425/670 situated in M3uza Vardag, tehsil and District Attock, for the construction of Islamabad-Peshawar motorway through Award NU. 0I anted 08.06.2004. The appellants paid compensation amounting to Rs, 607,966/- to the respondents. The compensation paid at the time of acquisition was correctly assessed in accordance with law and the same was more than the market rate. The compensation was worked out by the District Assessm ent Committee on the basis of average sale price in the village.
Keeping in view the market value and other relevant factors the rates as received from the District Officer Revenue and approved by the Board of Revenue Punjab, Lahore were fixed being reasonable and fair. The respondents had not raised any objection on the assessed compensation a received the same without any protest. The response filed a reference under section 18 of the Land Acquisition Act, 1894 before the learned Senior Civil Judge Attack. The reference was contested by the appellants by filing written statement wherein they denied the averments made in the reference.
3. Out of the divergent pleadings of the parties the following issues were framed by the learned Trial Court:-- "(1) Whether the reference in question is not maintainable also 18 of the LAA? OPR (2)Whether the reference is barred by time? OPR (3)Whether the compensation awarded to the petitioners is inadequate and they are entitled to its enhancement, if so. to what extent? OPA (4)Relief."
4. The parties led their evidence pro and contra to prove their respective contentions. After scanning the entire record and available evidence, the learned Trial Court vide impugned judgment and decree dated 1103.2010 accepted the reference filed by the respondents and modified the .Award to the extent that the respondents are entitled to receive compensation at the rate of Rs, 3,00,000 kanal alongwith 15% Compulsory Acquisition Charges and 8% Compound Interest. Hence this Regular First Appeal.
5. Learned counsel for the appellants submits that reference under section 18 of the Land Acquisition Act (I of 1894), was not competent as the respondents had received compensation as determined by the Land Acquisition Collector through Award No, 7 without raising any objection. He further submits that the respondents had no locus standi to file reference under section 18 of the Land Acquisition Act, 1894 read with second proviso to sub-section (2) of section 31 of the Act ibid. On the other hand learned counsel for the respondents contends that the respondents received the compensation under protest. He further submits that filing of reference under section 18 of the Land Acquisition Act, 1894 would amount to protest as envisaged under second proviso to sub- section (2) of section 31 of the Act ibid. He relies on case titled Wall Ahmad vs. Collector Land Acquisition and others (1985 SCM R 224).
6. We have heard the learned counsel for the parties and also perused the record of this case with their able assistance.
7. The respondents in paragraph No, 1 of their reference filed under section 18 of the Land Acquisition Abt, 1894, stated that an amount of Rs, 607,966/- was paid to them in accordance with Award No, 7/2004. It is nowhere mentioned in the reference that they had received the compensation under protest. Further Zahir Shah, one of the respondents appeared as AW-1 and categorically stated in his examination-in-chief that compensation of Rs, 607,966/-was paid in respect of acquired land. He too had not stated that the same was received under protest.
8. Contrary to that, in preliminary objection No, 2 of their written statement, the appellants have specifically stated that reference under section 18 of the Land Acquisition Act, 1894 is not maintainable as the respondents received compensation without raising any protest. In support of their stance they produced Aftab Ahmed Patwari as RW-1 who categorically stated in his examination-in-chief that compensation was received by the respondents without any protest. It is pertinent to mention here that the learned counsel for the respondents neither made any suggestion nor put any question that they had received. the compensation under protest.
9. It is an established principle of law that a statement of a witness made in his examination-in- chief which is material to the controversy of the case. if not challenged by the other side directly or indirectly, then such unchallenged statement should be given full credit and the portion not cross- examined, will be accepted to be true. Reference may be made to the case-law titled "Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba All Naqvi" (1991 SCM R 2300), 10.It is an established principle of law that if compensation is received without any protest on the part of the person interested whose land has been acquired, then the reference under section 18 of the Land Acquisition Act, 1894 read with second proviso to sub-section (2) of section 31 of the Land Acquisition Act, 1894, is not maintainable. For facility of ready reference, the second proviso to sub- section (2) of section 31 of the Act ibid is reproduced herein below:-- ""(2) If they shall not consent to receive it or if there be no person competent to alienate the land or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18.--" (emphasis supplied)
11.Astherespondents had received compensation without protest, therefore the second proviso to sub-section (2) of section 31 of the Land Acquisition Act, 1894, reproduced herein above, is fully. applicable and constitutes a bar to the respondents' right to claim the reference under section 18 of the Act ibid, as they can no longer be treated persons interested. Reference may be made to case titled Govt. of N.W.F.P. and others vs. Akbar Shah and others (2010 SCM R 1408). The relevant portion of the judgment is reproduced herein below:- "It is established on the record that the respondents/plaintiffs had received compensation as determined by the Land Acquisition Collector through the Award without any protest. The respondents/ plaintiffs had no lawful right even to file reference under section 18 of the Land Acquisition Act read with sections 30 and 31(2) of the Land Acquisition Act."
As already observed above the reference is not maintainable, therefore, there is no need to discuss the merits of the case.
12. Learned counsel for the respondents has relied upon case titled Wall Ahmad vs. Collector Land Acquisition and others (1985 SCM R 224) but the said judgment is distinguishable on facts. In the said judgment the Award was made by the Collector on 29.07.1970 but before any compensation could be paid the appellant (of the said judgment) on 224.08.1970 applied under section 18 for making a reference to the Court. The reference was received by the Court on 22.04.1971. It was after this that the appellants received compensation on 30.05.1971 on furnishing the requisite bond. In the case in hand the situation is entirely different and from the available record it is manifestly clear that the respondents had received the compensation without any protest on 31.08.2004, much prior to the filing of reference under section 18 of the Land Acquisition Act, 1894. The respondents had not placed on record any documentary proof that they had protested over the receipt of compensation prior to the filing of reference before the Civil Court. The contention of the learned counsel for the appellants is further supported by the document Ex.R/4 {{URDU TEXT}}which shows that the respondents had received the compensation of Rs, 607,966/- without raising any protest on their part on 31.08.2004.
13. The upshot of the above discussion is that this appeal is accepted and the impugned judgment and decree dated 13.03.2010 passed by the learned Senior Civil Judge, Attock is hereby set aside.
No order as to costs.