1. ' NASIM HASAN SHAH, J.--These appeals, by leave of this Court, are directed against the judgment, dated 23-9-1986 of the Peshawar High Court, whereby two Regular First Appeals from the decision of a Civil Court regarding compensation in a land acquisition case, were reversed and orders of remand were passed for fresh decision.
2. ' The relevant facts arc that land belonging to the respondents having been acquired for the use of the appellant-Company, the parties, during the acquisition proceedings, allegedly reached a negotiated settlement on the question of compensation.
3. ' The agreement was based on a joint statement of the representatives of the parties which is reproduced below: "JOINT STATEMENT OF Malik Shaukat Khan, Special Attorney of Malik Muhammad Iqbal, Malik Muhammad Ashraf s/o Haji Khuda Bukhsh in person and Muhammad Bukhsh Malik, Senior Manager, Finance and Mian Aziz-ur-Rehman, Senior Manager. Sales Mustehkam Cement Ltd.
4. Farooqia...... On S.A.
5. ' We have, by negotiation, agreed to the acquisition of Khasra Nos.287, 288, 189, 290, 291, 314 and 319 measuring 243 kanals and 5 marlas situated in the area of village Shadi, Tehsil Haripur as below:
(1) Price of land et Rs,5,457.40 paisas per kanal amounting to Rs,13,27,439.50.
(2) Price of Tube-well, Houses and trees situated in the abovementioned land Rs,6,72,560.50 = Total price of this land Rs,20 lacs.
6. ' 15% compulsory acquisition charges shall also be admissible as allowed by law.
(1) Sd/- Malik Muhammad Shaukat Khan attorney of Malik Muhammad lqbal Khan, owner.
(2) Sd/- Malik Muhammad Ashraf s/o Haji Khuda Bukhsh, owner.
(3) Muhammad Bukhsh Malik, Senior Manager Finance, representative of Acquiring Department.
(4) Mian Aziz-ur-Rehman, Senior Manager Sales, representative of Acquiring Department. {{TABLE}} R.O.&A.C. Sd/- Acquisition Collector, 6-7-1983 Abbottabad." {{TABLE}} ' The Collector made an Award on 25/28-12-1983 in accordance with the aforementioned agreement reproduced above. The respondents/land-owners received payment of Rs,18 lacs in 1983 even before the Award which is alleged to have been made in pursuance of the agreement and at the request of the respondents/land-owners without any objection or protest.
7. Notwithstanding they Filed applications for Reference under section 18 of the Land Acquisition Act on 6-2-1984. However, during the pendency of the Reference, they received an amount of over Rs,4 lacs but this time under protest. Their Reference petitions were, however, dismissed by a learned Senior Civil Judge, Abbottabad on 26-3-1985 on the ground, inter alia, that the objectors had no cause of action on account of their having entered into an agreement with regard to the compensation and having received the same, without protest.
8. ' The respondents' appeals, however, were allowed by the High Court and the case was remanded for fresh trial of the following recast issues:
(1) Whether the petitioner has received the amount of compensation without protest, if so, its effect?
(2) Whether there was lawfully constituted a Negotiation Committee under authority which has assessed the compensation of the property with consent of the parties and to what effect?
(3) Whether the petitioner is estopped to challenge the award and to ask for the enhancement of compensation?
(4) Whether the petitioner is entitled to the compensation of his land at the rate of Rs,90,00 per kanal or so?
9. ' The original issues framed by the learned Referee Judge, it may be mentioned, were as follows:
(1) Whether petitioner has got a cause of action?
(2) Whether petitioner has received the amount without protest, if so, its effect?
(3) Whether petition is within time?
(4) Whether award in dispute is illegal and without jurisdiction?
(5) Whether the petitioner is entitled to recover the compensation for the land acquired Rs,90,000 per kanal alongwith 25% compulsory acquisition charges and 8% compound interest as is prayed for?
10. ' In support of these appeals, Raja Muhammad Akram, inter alia, submitted that the respondents having accepted the compensation in pursuance of a settlement made with the appellant- Company the Reference under section 18 of the Land Acquisition Act was not competent and the Senior Civil Judge was right in holding that no Reference Petition lay under section 18, in the circumstances of the case. Other submissions were also made, to which reference is not necessary on the view which we have arrived at.
11. ' It appears that in pursuance of the judgment of the High Court remanding the case to the Referee Court for decision in accordance with law on the recasted issues, both the parties have led their evidence and the final order alone has now to be made. The main question, and this is common ground, that to come to a finding whether the reference under section 18 was competent it is necessary to determine whether the agreement allegedly made between the parties regarding the amount of compensation payable to the respondents was lawfully made? The respondents had raised several objections in this connection and these could be adjudged only in the light of the evidence of the parties. It seems, however, that the learned Referee Judge (Senior Civil Judge, Abbottabad) did not himself record any evidence at all in the matter. In this connection no doubt he has observed:-- "The learned counsel also relied upon the record already placed on file without recording any further document of evidence."
12. But there is no indication on our record to the effect that he recorded any statement of the learned counsel for the parties stating that they agreed that the evidence on the file of the Land Acquisition Collector may be read as evidence in the case. In the absence of the requisite statements to the above effect the learned Referee Judge could not have relied on the material on the Collector's record.
13. ' On the other hand, full evidence of the parties, on the other relevant questions has now been recorded by the learned Civil Court. We think it would he more appropriate to allow him to give his findings thereon, so that no controversy remains on the factual matters.
14. ' We would, accordingly, desist from interfering with the order of remand passed by the High Court.
15. The appeals arc, accordingly, dismissed but the parties are left to hear their own costs.