' The petitioner challenges the vires of the order of Collector Land Acquisition, dated the 24th of April, 1977, whereby land of the petitioner, comprising survey number 375 was acquired under the Land Acquisition Act and the order of the Commissioner, who dismissed the appeal filed by the petitioner, dated the 23rd of August, 1982, for failure to exercise jurisdiction vested in them.
2. Government-respondent No, 1 decided to acquire land for construction of Forest Rest House at Bagh. To accomplish the object, Notification under section 4 of the Land Acquisition Act was issued on the 21st of September, 1976, Notification under section 5 of the Act was issued on the 13th of October, 1976 and Notification under section 6 of the Act was issued on the 21st of February, 1977. On completion of the formalities, Collector, Land Acquisition, Bagh, made an award by assessing value of the land at the rate of Rs. 5,000 per kanal. The grievance of the petitioner, as is evident from the grounds of appeal before the Commissioner and evidence led before the learned District Judge, was that the Collector, Land. Acquisition failed to assess compensation of a house and trees standing in the land in question. It was urged that failure to assess value and fix the compensation of the built-up property and plants, resulted in failure to exercise jurisdiction vested in the Collector and the learned Additional Commissioner who decided the appeal against the award of the Collector.
3. It is evident from the award of the Collector that petitioner submitted an application in shape of objections alongwith copies of two sale-deeds with the prayer of assessment of compensation of the property under acquisition. The award is silent in respect of the house and plants, claimed to have been standing in the land at the time of issuance of Notification under section 4 and the subsequent Notifications. Failure to examine the claim of the poi, tioner in respect of the property in question, suggests that the Collector did not apply his mind to the claim of the petitioner. The contention of the petitioner finds support from the memorandum ' of appeal filed before the Commissioner. In paras. 4 and 6 of the memorandum, petitioner expressly complained against the Collector for his failure to assess the value of the property. The contention was further supported by placing on the record the copies of statements of Bashir Hussain Patwari, Behram and Lal Khan which are Annexures and key notes to site-plan given in Annexure (j).
4. In addition to the award, the order recorded by the learned Additional Commissioner, Land Acquisition is also shown silent in respect of the real controversy raised by the petitioner. Thus, the impugned orders clearly reflect that the Collector as well as the learned Additional Commissioner refrained from considering the evidence placed before them, in support of the claim of the petitioner.
5. It is settled that this Court seldom allows invoking of special jurisdiction under section 44 of the Azad Jammu & Kashmir Interim Constitution Act in the fashion and manner of its appellate jurisdiction, as the difference between the two, is obvious. Ordinarily, question of appreciation of evidence is permissible to be examined in exercise of appellate jurisdiction and not otherwise. But at the same time, on the satisfaction that a tribunal, vested with exclusive jurisdiction failed to exercise such vested jurisdiction, this Court is not deprived to undertake scrutiny of such an order.
This is particularly done when no alternate or adequate remedy is considered visible to an aggrieved person. This view finds complete support from observations recorded in cases of N. M.
Khan (1) and Habibullah . Khan (2). Both the judgments were recorded by late Justice Shabir Ahmed. The learned Judge was of the opinion that he was clear in his mind that if a tribunal of exclusive jurisdiction had given a finding of fact on the assumption that a piece of evidence did exist while it did not or had kept out of consideration a piece of evidence which could not had been kept out of consideration or had misread any material part of evidence, the order of tribunal of exclusive jurisdiction, would stand at no better footings than the order without jurisdiction, and occasion for issue of writ would arise.
6. On the principle mentioned above, the present case is found on equal footings to the cases referred to above as, here too, the Collector and the learned Additional Commissioner Land Acquisition, fell in error of ignoring the claim of the petitioner and evidence placed before them.
Thus, both of C them failed to exercise jurisdiction exclusively vested in them. Such a failure on their part necessitates indulgence of this Court to redress the grievance of the petitioner.
7. It is, therefore, ordered that the Collector Land Acquisition, Bagh shall proceed to record his findings in respect of the house and plants, if any, as alleged standing in survey number 375 situate in village Kotehri-Qandeel Khan, Tehsil Bagh, in the light of the provisions of the Land Acquisition Act. The petition is, therefore, disposed of accordingly. {{FOOT NOTE}}
(I) PLD 1962 Lah. 468 (2) PLD 1962 Lah. 797 {{FOOT NOTE}}