1998 PLP 730 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

Petitioner-Authority is seeking leave to appeal against the order of a learned Division Bench of Peshawar High Court, Abbottabad Bench, Abbottabad, dated 25-5-1995 whereby an Advocate was appointed as a Commissioner to find out the actual location of the disputed land at the time of its acquisition.

2. In order to appreciate the real controversy raised before us we may shortly state the facts of the case which are as follows: A Regular First Appeal was filed by the owners-respondents against the Collector, Land Acquisition, Abbottabad and another one by the petitioner-Authority against the judgment, dated 5-12-1992 whereby their objection petition preferred under section 23 of the Land Acquisition Act (I of 1894) and cross-objections filed by the petitioner Authority were dismissed. During the course of arguments, the learned Judges in the High Court appointed the Advocate of Abbottabad as a Local Commissioner "to find out the actual location of the land acquired at the time of issuance of the notification under section 4 of the Land Acquisition Act (I of 1894) and particularly the distance of this land from the Hattar Industrial Estate which may help in determining correctly the potential value of the land in dispute at the time of its acquisition".

3. Haji Ghulam Basit, learned counsel for the petitioner, contended that actual location of the acquired land having been fixed by the Patwaris Halqa Dingi and Kot Najibullah, it could not be referred again to a Commissioner under Order XXVI, rule 9, C.P.C.

4. We have examined the testimony of the two Patwaris which has been placed on this file. Patwari Halqa, Hattar, had neither inspected the spot nor had prepared any report qua the actual location of the acquired land. Patwari Halqa, Dingi had conducted the spot inspection in compliance with the direction of the learned Referee Judge. He admitted in his cross-examination that no notice was issued to the respondents before conducting the spot inspection; that the measurements were not checked from the Aks Shajra Kishtwar; that the measurement described by him in the report and "the distances delineated by him were the result of his- inquiry from the locals" but he had not recorded the statements of those locals and lastly; that he had not verified the distances from the record which were described by him in his report Exh.OW.2/2. In para. 3 of the objection, petition giving rise to R.F.A. No.37/1993, enhancement of compensation amount was claimed, inter alia, on the ground of potential value of the land under acquisition. It is by now settled proposition that the Courts may, if they deem it appropriate, besides other considerations, appoint a Commissioner for inspection of the spot with a view to evaluating the fair compensation particularly for the purposes of finding out its potentiality. Apparently, there was, therefore, ample legal justification for the appointment of a Commissioner in order to evaluate the land acquired to find out the potential value of the land. Under Order XXVI, rule 9 ibid when the Court deems it proper for the purpose of elucidating any point it. dispute or for ascertaining any matter referred to in the said rule, a Commissioner is deputed for the required purpose. The object of the local investigation is to obtain evidence which from its peculiar nature can best be had from the spot inspection itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record. It clarifies and explains any point which is left doubtful or deficient in the evidence on the record. Even the power of the Appellate Court to appoint a Local Commissioner for elucidating certain points which were deficient or doubtful cannot be denied.

5. It was next contended that the appointment of a Local Commissioner was tantamount to allowing additional evidence which discretion was exercised arbitrarily with a view to filling up gaps in the evidence of the owners respondents and thus, contravened the provisions of Order XXI, rule 27, C.P.C.

6. We have not been impressed by this submission either. The learned Judges of the Division Bench did not order or allow the production of additional e evidence, but merely directed a Commission to inspect the spot and report the actual location of the land acquired and find out the distance of this land from the Hattar Industrial Estate with a view to determining correctly the potential value of the land. We do not visualise anything illegal in this order. Moreover, we understand that the learned Judges found themselves unable to decide the appeal on the record as it stood at the time.

7. The impugned order was not described to be one under Order XXI, rule 27, C.P.C. If the impugned order conveys an impression that the appointment of the Commissioner for carrying out the specified job was tantamount to allowing the additional evidence still under the circumstances of the case the learned Judges in the High Court were justified in passing an order for additional evidence within the contemplation of rule 27 of Order XXI, C.P.C., as they had deemed it proper to do it. No possible exception can, therefore, be taken to the impugned order which is substantially just and proper. The petition for leave to appeal is, therefore, dismissed. A.A./S-38/S Leave refused.