' JAWAID NAWAZ KHAN GANDAPUR, J.---We propose to dispose of the present R.F.A. No,42/93 (Malik Muhammad Iqbal etc. v. The Government of N.-W.F.P. Through Land Acquisition Collector etc) as well as R.F.A. No, 43/93 (Malik Muhammad Ashraf etc. v. The Government of N.-W.F.P. Through Land Acquisition Collector etc) filed against the judgment (s) and decree (s) of the Land Acquisition Judge by this single judgment as similar questions of law and facts are involved in both the appeals.
2. Land belonging to the appellants was acquired by respondent No,1 for respondent No,2 vide award dated 28-12-1983 including trees both fruit bearing and non fruit bearing, tubewells and houses situated in village Shadi, Tehsil and District Haripur.
3. It appears from the record that compensation in respect of 235 Kanals 11 Marlas of land, houses, trees and tubewells was assessed by mutual consent/private agreement arrived at between the appellants Malik Muhammad Iqbal and Malik Muhammad Ashraf Ss/o Malik Khuda Bakhsh and respondent No,2 i,e, Mustehkam Cement Factories Limited. However, the compensation regarding to remaining 253 Kanals 15 Marlas of land belonging to other people were separately assessed on the basis of one year average . Those persons have, not preferred any objection petition in respect of the assessm ent of the compensation of their property.
4. The appellants/objectors, however, challenged the award before the referee Judge on variety of grounds. They alleged that the award was illegal inasmuch as the Collector did not apply his independent mind and instead delegated his authority to the negotiating committee and as such the award being in violation of the law was void ab initio. They also reserved their rights to challenge the award by filing writ petition. Anyhow being interested persons to whom the award was not acceptable, they requested the Land Acquisition Collector to refer their case (s) regarding the determination of the amount to the Court because they were entitled to receive compensation @ Rs,90,000 per Kanal alongwith compulsory acquisition charges and interest.
5. The Land Acquisition Collector forwarded the objection petition filed under section 18 of the Land Acquisition Act, 1894 to the District Judge/Land Acquis'ltion Judge, Abbottabad. It was stated that the compensation was assessed through private negotiation and that a part of the compensation had been received, before the award, without any protest and a part after the award has been received under protest.
6. The referee Judge called upon the respondents to file their written statement. Both the respondents submitted that the reference was not maintainable as the appellants had received the compensation amount without protest. It was also contended that the objection petitions were barred by time. Respondent No,2 Mustekam Cement Factory Ltd raised a novel objection and stated that since the validity of the award has been challenged by the appellants, therefore, the appellants were debarred from filing a reference for the enhancement of the compensation amount under section 18 of the Act. Respondent No, 2 also submitted, in his written statement, that the appellants/objections were stopped by their own conduct to file the objection petitions before the Collector/Land Acquisition Judge and that the land Acquisition Judge had no jurisdiction to entertain or try the same.
7. In both objection petitions the pleadings of the parties were reduced to similar issues, which are to the following effect:--
(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 15% compulsory acquisition charges and 18% compound interest as is prayed for ?
(6) Relief.
8. The respondents filed an application under Order 14 Rule 2, C.P.C. With the result that the referee Judge by considering issues Nos.1 to 4, as preliminary issues , dismissed the objection petitions for not fulfilling the requirements of section 18 of the Act because the validity of the award had been challenged in spite of the fact that the compensation was assessed through private negotiation and the award, as such, amounted to a compromise decree. Besides this it was held that a part of the compensation amount was received by the appellants/objectors without any protest.
9. The judgment and decree of the referee Judge was challenged before this Court and this Court vide its order dated 23-9-1986 accepted the appeal by setting aside the judgment and decree of the learned referee Judge and after recasting the issues remanded the case to the referee Court for decision.
10. Respondent No,2 (Mustekam Cement Factory Ltd) filed two separate appeals (Nos.432 and 433 of 1986) in the Supreme Court of Pakistan wherein Full Bench of the Supreme Court of Pakistan came to the following conclusion vide its judgment dated 8-3-1989:-- "We would, accordingly, desist from interfering with the order of remand passed by the High Court.
The appeal's are, accordingly, dismissed but the parties are left to bear their own costs".
11. After the remand the case came up for hearing before the learned Additional District Judge, Haripur, who vide; his judgment dated 13-12-1989 dismissed the objection petition.
12. This judgment (s) and decree (s) was challenged before another learned Division Bench of this Court which vide: its order dated 26-6-1990 held as under :-- "Resultantly we allow the appeal (s) set aside the impugned judgment (s) of the learned Additional District Judge/Reference Judge Haripur dated 13-12-1989 and, without entering into the merits of the case, remand the same with the direction to decide the matter by giving its finding on each issue, including issue No,4, in the true perspective of the evidence forthcoming in support or denial thereof, to deal with the matter more objectively and decide the case within a maximum period of 3 months"
13. Respondent No,2 Mustekam Cement Factory Ltd challenged the vires of the judgment of the High Court before the Supreme Court of Pakistan in Civil Appeals Nos.818/90 and 819/90. The Hon'ble Supreme Court of Pakistan held:-- "After hearing the learned counsel we do not find any justification for interference in so far as the order of remand is concerned. Hence these appeals merit to be dismissed on this short ground.
That being so, we do not consider it necessary to examine the objection raised by the learned counsel that although one of the appellants in this case is the Provincial Government and thus a condition laid down in Iftikhar Hussain Shah v. Pakistan (1991 SCM R 2193) stands satisfied; but the Provincial Government not having objected to the award it could not ;have filed appeal. This question may be examined in some other case, if necessary.
"14. The learned referee Judge after receiving the case file and hearing the learned counsel for the parties on 14-10-1992 passed the following order:-- "Parties present as before . After going through the record it has been felt that to arrive at a correct conclusion summoning and examination of Malik Shaukat son of Malik Muhammad Iqbal (who acted on behalf of objector during acquisition proceedings) as Court witness is necessary. Hence he should be summoned as such for 14-11-1992.
15. Respondent No,2 Mustehkem Cement Factory Ltd feeling aggrieved of the order instituted Civil Revision No,15/92 on 11-11-1992. His Lordship, Mr. Justice Jalal-ud-Din Akbarji, vide: his judgment dated 5-12-1992 accepted the revision petition and set aside the order of the learned Senior Civil Judge. The 'trial Court was directed to comply with the orders of this Court dated 26-6-1990.
16. After receiving the file back from the High. Court the referee Judge/Additional District Judge, Zia- ud-Din Siddiqui, vide: his judgment dated 23-1-1993 dismissed both the petitions leaving the parties to bear their own costs.
17. Feeling aggrieved by the said judgment (s) and decree (s) of the referee Judge the appellants have knocked at the door of this Court for the redress of their grievance and have challenged the vires/legality of the said order.
18. Muhammad Abdul Wahid Advocate for the appellants/objectors and Raja Muhammad Advocate for the respondents present and heard. We have had the advantage of going through the record of the case with the help of the learned counsel for the parties carefully and are of the view that the judgment (s) and decree (s) of the learned District Judge/Acquisition Judge is based on correct appreciation of evidence and that he has committed no illegality/irregularity.
19. It may be mentioned, with advantage, that before the announcement of the award both the owners of the land namely Malik Muhammad Iqbal through his son and special attorney Malik Shaukat Khan and Malik Muhammad Ashraf had settled the price with the representative of the acquiring institution and consequently an agreement was executed, the copy of which is Exh.
0.W. 3/x-8. The relevant portion of this agreement dated 6-7-1983 is as under:-- ' We have by negotiating agreed to the acquisitional of Khasra Nos. 287, 289, 290, 291, 314, and 319 measuring 243 Kanals and 5 Marlas situated in the area of village Bhui, Tehsil Haripur as below:--
(1) Price of land Rs,5457/40 paisa per Kanal amounting to R s.1327439/50.
(2) Price of Tubwell, houses and trees situated in the above mentioned land Rs,672560/50. Total price of this land Rs,20 Lacs. 15% compulsory acquisition charges shall also be admissible as allowed by law."
20. As a result of this agreement before the finalization of the award in question, on the written request of the appellants-objectors a sum of Rs,18 Lacs, in two different instalments of Rs,10 lacs and Rs,8 lacs, was paid to them. This fact has also been admitted by the appellant (s) objector (s) when he was examined on oath as O.W.7. Since the amount of Rs,18 lacs was paid to the appellants-objectors, at their request, on agreed rates and was received by them without any protest, therefore, the settlement reached between the parties was also accepted by the Collector who then based his award on the said settlement on 28-12-1983. After the announcement of the award the remaining amount of Rs,4 Lacs was also received by the appellants-owners but this was the amount which was received by them under protest. There is nothing on the file to suggest that they were forced or compelled to receive this amount and it is clear that they had received the same. In the circumstances we, do not find ourselves persuaded to interfere with his well reasoned judgment.
21. Since the land belonging to the appellant (s) have been acquired for the use of a Company (Mustehkam Cement Factory Limited), therefore, while dismissing the appeal (s) we order that the rate of compulsory acquisition charges shall be 25% instead of 15% as fixed by the Land Acquisition Collector in view of the amendment made in subsection (2) of section 23 of the Land Acquisition Act, No,1894. No order as to costs.