UMAR FAROOQ KHAN Versus NORTH-WEST FRONTIER PROVINCE

ABDUL KARIM KHAN KUNDI, C.J .‑‑‑Regular First Appeals No.5 of 1992 and No.10 of 1993 titled Umar Farooq v. Government of N.‑W.F.P. etc. and Malik Umar Daraz v. Government of N.‑W.F.P. etc., respectively, were dismissed by the Peshawar High Court, Peshawar vide judgments and orders, dated 16‑3‑1985. However, in Civil Appeal No.12‑P of 1988 and Civil Appeal No.13‑P of 1988 Supreme Court of Pakistan on acceptance of appeals, remanded the cases to the High Court for purposes of considered decisions on the subject taking into account the earlier decisions of the Supreme Court published in PLD 1966 SC 824 at 920 and PLD 1963 SC 296 at 308 and also earlier decisions of the High Court itself with particular reference to a judgment in Regular First Appeal No.38‑D of 1979, dated 26‑10‑1982 and further a judgment published in PLD 1978 Peshawar 138.

2. We have heard the learned counsel for the parties. Mr. Dost Muhammad Khan counsel for the appellants has extensively laboured in pointing out that the original notification under section 4 of the Land Acquisition Act was published in the Gazette on 26‑2‑1973 which was challenged in Writ Petition No.59 of 1973 and a Division Bench of the High Court, vide its judgment reported in PLD 1975 Peshawar 103, quashed the Acquisition proceedings conducted by the Collector in pursuance of the said notification under section 4 of the Land Acquisition Act. The Collector proceeded to initiate acquisition proceedings afresh and in supersession of its earlier award, dated 2‑3‑1973 there was drawn a fresh award on 16‑8‑1977, also meanwhile adding some Khasra numbers in a corrigendum, dated May, 1977 to the notification under section 4 of the Land Acquisition Act, dated 26‑2‑1973. The latest award was contested by the land affectees in different references. In reference of one Muhammad Yousaf bearing No.3/Acquisition instituted on 12‑9‑1977 Mr. Javed Nawaz Khan Gandapur, Senior Civil Judge/Land Acquisition Judge enhanced the compensation of the land situate in village Sokari Jabor from Rs.3,000 per Kanal to Rs.14,750 per Kanal. In a reference of Gul Paidar Shah bearing No.l/Acquisition instituted on 12‑9‑1977 and decided on 2‑7‑1979 the same Land Acquisition Judge had also enhanced the compensation of the affectees land situate in Moza Sokari Jabor from Rs.3,000 per Kanal to Rs.14,750 per Kanal. However, in respect of the affectees land situate in Village Hinjal Noor Baz the compensation fixed at the rate of Rs.5,000 per Kanal by the Land Acquisition Collector was maintained intact. Sher Wali and Barkat Ali had also brought a reference No.4/Acquisition of 1977 for the enhancement of their land situate in Village Hinjal Noor Baz but the learned Senior Civil Judge, by his judgment and order, dated 2‑9‑1979, dismissed their reference and maintained and affirmed the compensation determined by the Land Acquisition Collector at Rs.5,000 per Kanal. All the three sets of affectees came up in appeals before the High Court while the Provincial Government filed appeal as against the judgments and awards of the Land Acquisition Judge having enhanced the compensation of the lands of Muza Sukari Jabor. A Division Bench of this Court, by a consolidated judgment, dated 26‑10‑1982, dismissed the appeal of the Government as well as the affectees and maintained the judgments and awards of the Land Acquisition Judge vis‑a‑vis the lands of village Hinjal Noor Baz at the rate of Rs.5,000 per Kanal and the land of Moza Sukari Jabor at the rate of Rs.14,750 per Kanal.

3. Umar Farooq and Malik Umar Daraz had filed separate references under section 18 of the Land Acquisition Act for the enhancement of compensation of their land in Moza Sukari Jabor and the learned Senior Civil Judge/Land Acquisition Judge, Mr. Aziz Akhtar Chughtai dismissed their references under observations that the judgments/awards of his predecessor in the Land Acquisition References with respect to the same award were not binding on him since they have been challenged in appeals before the High Court in which the decisions were not given as yet. Umar Farooq and Malik Umar Daraz filed Regular First Appeals Nos.5‑D and 10‑D of 1982 in the High Court as against the judgments and awards of the Land Acquisition Judge, dated 19‑5‑1982 and their appeals were dismissed but the cases were remanded by the Supreme Court for decision afresh.

4. Now at the time of hearing of the appeals in the Supreme Court, it was not known whether any appeal was brought against the decision in Regular First Appeal No.2‑D of 1980 before the Supreme Court. It has, however, now been ascertained from the parties and their counsel that no appeal whatsoever was taken against decision in Regular First Appeal No.2‑D of 1980 before the Supreme Court and, as such, the judgment of Division Bench of the High Court in Regular First Appeal No.2‑D of 1980 having confirmed the enhancement of compensation of land in Moza Sokari Jabor from Rs.3,000 per Kanal to Rs.14,750 per Kanal assumed finality. We have, therefore, been left with no choice but to accept these appeals, set aside the judgments and awards of the Land Acquisition Judge and the Land Acquisition Collector and to determine the compensation of the lands of the appellants in Moza Sukari Jabor at the rate of Rs.14,750 per Kanal. We shall also order the award of 15% compulsory acquisition charges to the affectees. Besides, the affectees shall also be entitled to 8% compound interest on the amount of compensation from the date of taking possession of the land till 22‑5‑1983 and, thereafter, at 6% simple interest until payment or the deposit of the amount of compensation provided that there has not been made such payment or deposit of the amount in Court earlier. Parties are left to bear their own costs.

5. Before parting with the case we have also taken notice of glaring irregularities, rather illegalities, in the proceedings in Reference No.2/Acquisition instituted on 13‑8‑1984 and decided on 20‑1‑1985. The Deputy Commissioner/Land Acquisition Collector, Bannu was served with a notice in the reference on 23‑10‑1984 personally and he has deputed one Hayatullah Khan, A.D.K. as his representative to appear in the Court on 4‑11‑1984 who was directed to file a written statement on 18‑11‑1984 but on the day he absented from the proceedings and the respondents were placed ex parte. Again, the award was announced by the Deputy Commissioner/Land Acquisition Collector, Bannu on 16‑8‑1977 whereagainst objection petition was filed before the Land Acquisition Judge after 7 years that he made a time‑barred reference on 2‑9‑1984 which was received in the Court of Senior Civil Judge on 13‑10‑1984. Under section 18(2)(b) of the Land Acquisition Act, 1894 the period of limitation for filing objection is prescribed as six months. The Land Acquisition Collector should have withheld the reference but he has still made a time‑barred reference to the Land Acquisition Judge. Further, neither there was made an application to the Land Acquisition Judge for setting aside the ex parte decree nor there was made an appeal as against ex parte judgment and award. There was caused a huge financial loss to the Exchequer by the negligence or collusion of the Land Acquisition Collector/Deputy Commissioner, Bannu. Registrar would send a copy of this judgment to the Chief Secretary, Government of N.‑W.F.P., Peshawar for necessary action against the delinquent officer.

A. A./2214/P ?????????????????????????????????????????????????????????????????????????? ??????????? Order accordingly