2019 PLP 2770 (YLR)

SHAMS MEHMOOD MIRZA, J.

This appeal is filed under section 54 of the Land Acquisition Act, 1894 (the Act) to challenge judgment and decree dated 29.09.2017 passed by the trial court seeking enhancement in the amount of compensation awarded by Land Acquisition Collector. National Highway Authority (NHA) has also filed appear bearing R.F.A. No.22 of 2018 to challenge judgment and decree dated 29.09.2017 whereby the reference application under section 18 of the Act filed by the appellant in the present appeal was partially allowed and the compensation amount was enhanced to Rs.10,000/- per Marla. This order shall decide both the cross appeals.

2. We do not wish to indulge into lengthy examination of the evidence of the parties in view of the preliminary objection raised by the NHA regarding the maintainability of the reference application filed by the appellant herein.

3. It is submitted that the appellant accepted the amount of compensation from the Land Acquisition Collector without recording his protest. In this regard attention of this Court has been drawn towards Exh.R-7 "Qabaz ul Wasol". It was accordingly contended that by virtue of proviso to subsection (2) of section 31 of the Act, the reference application was not maintainable. Reliance was placed on judgments reported as Government of NWFP and others v. Akbar Shah and others 2010 SCMR 1408 and Land Acquisition Collector (M-I) National Highway Authority, Islamabad and 4 others v. Zahir Shah and 5 others 2016 YLR 462.

4. Learned counsel for the appellant refuted the stance of the National Highway Authority and stated that the proposed amount of compensation was disputed before the Land Acquisition Collector in the course of passing the award.

5. Exh.R-7 "Qabaz ul Wasol" has been perused which does not reflect recording of protest by the appellant at the time of receipt of compensation. The appellant in the reference application did not mention that the amount of compensation was received by him under protest. The NHA in its written reply before the trial court had taken a specific objection regarding the maintainability of the reference application on the ground that the amount of compensation was received by the appellant without recording his protest. 5(sic) A learned Division Bench of this Court in judgment reported as Land Acquisition Collector (M-I) National Highway Authority, Islamabad and 4 others v. Zahir Shah and 5 others 2016 YLR 462 held as follows: It is an established principle of law that if compensation is received without any protest on the part of the person interested whose land has been acquired, then the reference under section 18 of the Land Acquisition Act, 1894 read with second proviso to subsection (2) of Section 31 of the Land Acquisition Act, 1894, is not maintainable ..As the respondent had received compensation without protest, therefore, the second proviso to subsection (2) of section 31 of the Land Acquisition Act, 1894, reproduced therein above, is fully applicable and constitutes a bar to the respondents' right to claim the reference under section 18 of the Act ibid ."

6. Similarly, the Hon'ble Supreme Court in judgment reported as Government of NWFP and others v. Akbar Shah and others 2010 SCMR 1408 laid down the following law: It is established on the record that the respondents/plaintiffs had received compensation as deter-mined by the Land Acquisition Collector through the Award with-out any protest. The respondents/ plaintiffs had no lawful right even to file reference under section 18 of the Land Acquisition Act, 1894 read with sections 30 and 31(2) of the Land Acquisition Act.

7. In view of the unambiguous position of law, it is clear that the reference application filed by the appellant was not maintainable.

8. In the result, this appeal being devoid of any merit is dismissed. Appeal bearing No.22 of 2018 is allowed and judgment and decree dated 29.09.2017 passed by the trial Court is set-aside and the reference application filed by the appellant of R.F.A. No.238 of 2017 is hereby dismissed. SA/A-64/L Order accordingly.