Ch. Muhammad Iqbal, J. Through this Regular First Appeal, the appellants have challenged the validity of the order dated 23.06.2021 passed by the learned Referee Court / Senior Civil Judge, Rahim Yar Khan who dismissed the Reference under Section 18 of the Land Acquisition Act, 1894 filed by the appellants.
2. Brief facts of the case are that the respondents No.1 to 4 acquired land measuring 545 Kanal 14 Marla situated at Moza Tolha Tehsil Sadiqabad for public purpose i.e. construction of Karachi- Lahore Motorway Project Sukhar-Multan Section and notification under Section 4 of the Land Acquisition Act, 1894 [hereinafter referred to as the "Act"] was issued on 19.07.2014 which was gazette on 06.08.2014 and thereafter Award No.6 was issued on 26.12.2015. Out of the aforesaid acquired land, the appellants owned land measuring 212 Kanal 01 Marla. The compensation was granted at the rate of Rs.850,000/- per Acre. The appellants prayed for enhancement of compensation on the ground that the market value of the land is much more than the value granted by the respondents and that the land owned by the appellants is commercial in nature.
The respondents filed contested reply. The learned Referee Court framed issues, recorded evidence of the parties and finally dismissed the Reference vide order dated 23.06.2021. Hence, this Regular First Appeal.
3. We have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
4. Issues No.1 and 4 are the pivotal issues in this case, which are reproduced as under: "1. Whether the compensation assessed in the impugned Award, the subject matter of this reference, is adequate? If so, what is fair compensation of the acquired land for the petitioners?
OPA
4. Whether the petitioners have received the compensation without protest, hence, the instant reference is liable to be dismissed? OPR"
As regard issue No.1, the appellants in the Reference took stance that the market price of their acquired land is in the following terms: i. General agricultural landRs.25,00,000/- per Acre ii. Land having garden Rs.50,00,000/- per Acre iii. Commercial land Rs.100,000/- per Marla The appellants/claimants were duty bound to prove their claim through concrete and unimpeachable evidence but they have not produced any sale deed/sale documents of land immediately adjacent to the acquired suit. Furthermore, to prove their stance that the suit land is situated on main road, the appellants should have produced the shajra aks parcha or any other valid document in this regard to prove the exact location of the acquired property but no such material evidence is available on the record. Reliance is placed on a case titled Abdul Sattar Vs. Land Acquisition Collector Highways Department and others (2010 SCMR 1523) wherein the Hon'ble Supreme Court of Pakistan has held that:- "12. In our considered opinion the petitioner has failed to substantiate that the land in question was superior as compared to the other land in the vicinity. It also could not be established that it was a commercial land and it could not be such because construction of brick-kiln installed by the petitioner was not disputed. It would have no bearing on merits of the case as to whether it was functional or otherwise but it indicates the nature of the land which by no stretch of imagination can be termed as commercial. The petitioner also failed even to point out the exact distance between the land in question and that of the road. The learned ASC was asked pointedly that as to how Aks Shajra Kishtwar could be taken into consideration which was never got exhibited hence no evidentiary value could be attached to it but no answer could be given."
5. Under Section 18 of the Act, it was the mandatory duty of the appellants to mention the details of their acquired property, regarding size, location etc. of the land with supporting documents but in the reference all the required information has neither been mentioned nor any documentary evidence has been furnished in this regard, whereas an elaborate procedure for assessment of price has been provided in Rule 10 (1)(iii)(c) of Land Acquisition Rules, 1983 whereby average market price of similar kind of land similarly located, on the basis of the price prevalent during the period of twelve months preceding the date of publication of Notification under Section 4 of the Land Acquisition Act, 1894 in the area sold, has to be followed. As the appellants showed disagreement with the price fixed in the award, the onus was upon them to prove the claimed amount through corroborative, cogent, convincing, trustworthy evidence but the same are lacking.
Reliance is placed on the judgment of the Hon'ble Supreme Court of Pakistan cited as Abdul Sattar v. Land Acquisition Collector Highway Department and others (2010 SCMR 1523) wherein it is held that the burden to prove such claim lies upon the land-owner and mere oral assertion of the land- owner without any supporting documentary evidence would not be considered. Relevant portion of the judgment (supra) is reproduced as under: "7. It is worth mentioning that the determination of learned Referee Judge has been upheld by the learned Division Bench of High Court after having taken into consideration the oral and documentary evidence. The relevant portion of the judgment impugned is reproduced herein below for ready reference:- "The appellant failed to bring on record any document to show that the land of the appellant is superior as compared to the other owners of the Mauza in question and the land of the appellant is situated on the road side whereas the trial court has rightly after appraisal of evidence given finding against the appellant that value of the land of the appellant was decreased on account of brick kiln installed by the appellant which was not in working condition. In other words there has not been adduced evidence about the location of the suit land as at what distance the suit land is situated from the road except that land is situated at 87/88 Karam from road which brings the case of the appellants in the area that it is a case of insufficient evidence on record. It is settled law that burden of proving the entitlement to higher rate of compensation is on the land owner.
Reference in this context may be made to Government of India and others v. Muhammad Usman and others (1984 CLC 3406). The mere statement of owner without supportive evidence would be inconsequential."
(emphasis supplied)
6. The respondents produced the document (Exh.R.3) showing the market price of the land of the area on which basis the compensation was assessed. The appellants failed to rebut the documentary evidence produced by the respondents through any document. It is settled principle of law that documentary evidence always takes preference over the oral deposition. A document can be rebutted by the document having better legal sanctity only. In this regard, reliance is placed on the cases of Abdul Ghani & Others. Vs. Mst. Yasmeen Khan & Others (2011 SCMR 837) and Saleem Akhtar Vs. Nisar Ahmad (PLD 2000 Lahore 385).
In these circumstances, the learned Referee Court has rightly decided this issue against the appellants and in favour of the respondents.
7. As regard the Issue No.4 that "Whether the petitioners have received the compensation without protest, hence, the instant reference is liable to be dismissed? OPR". Proviso to sub-Section (2) of Section 31 of the Act is relevant in this regard, which is reproduced as under: "Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18"
The aforesaid provision is very much clear that only such person is entitled to file application for enhancement of compensation who has received compensation under protest whereas the appellants did not file any application to show their protest at the time of receipt of the compensation amount. On the other hand, the respondents have tendered documentary evidence (Exh.R.9 to Exh.R.11), exhibited without any objection of the appellants' side, shows the receiving of the compensation amount by the appellants without any protest, thus, the Reference was liable to be dismissed this score. Reliance in this regard is placed on a case cited as Ghulam Muhammad Vs. Government of West Pakistan (PLD 1967 SC 191) wherein the Hon'ble Supreme Court of Pakistan has held as under: "... He has now filed a petition to say that no such application was made, but a copy of the receipt granted at the time that the cheque was received from the Court has been filed by Government. It does not, as already stated, show that the money was withdrawn under protest. The second proviso to section 31(2) is, therefore, fully applicable and would appear to constitute a bar to the appellant's right to now claim a reference under section 18, for, he can no longer be treated to be a person interested who has not accept the award."
Another reliance is placed on a case titled Government of N.W.F.P and others Vs. Akbar Shah and others (2010 SCMR 1408) wherein the Hon'ble Apex Court has held that: "6....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.
Respondents/plaintiffs had no lawful right to file reference under section 18 of the Land Acquisition Act read with sections 30 and 31(2) of the Land Acquisition Act as law laid down by this Court in Ghulam Muhammad's case PLD 1967 SC 191."
Further reliance is placed on a case cited as Land Acquisition Collector (M-I), National Highway Authority Islamabad and 4 others Vs. Zahir Shah and 5 others (2016 YLR 2462). The case law cited as Wali Ahmad Vs. Collector, Land Acquisition and others (1985 SCMR 224) referred by the learned counsel for the appellants regarding maintainability of the Reference, is totally distinguishable from the facts of the instant case and does not held the appellants as in Wali Ahmad's case, the claimant received compensation after filing of the Reference.
In these circumstances, the appellants were debarred to file Reference claiming enhancement of compensation as they had not recorded any protest at the time of receipt of the compensation, as such, the learned Referee Court right decided this issue in favour of the respondents and against the appellants.
8. The appellants failed to substantiate the assertions made in the Reference through any concrete and trustworthy oral as well as documentary evidence, as such, the learned Referee Court has rightly dismissed the Reference which just decision does not require any indulgence from this Court.
9. Learned counsel for the appellants has not been able to point out any illegality, material irregularity or misreading of evidence in the impugned judgment & decree of the learned trial court, which does not call for any interference by this Court in its appellate jurisdiction.
10. For what has been discussed above, we do not find any merit in this appeal, hence, the same is hereby dismissed. No order as to costs.