2005 PLP 710 (CLC)

Through this single judgment, I propose to dispose of the instant appeal (R.F.A. No.53 of 1999) as well as connected appeal (R.F.A. No.69 of 1999) between the same parties relating to different nature of the property acquired for a common purpose.

2. Respondent No.2 processed the case for acquisition of land situated in village Maira Abazai, Tehsil and District Charsadda for the purpose of remodeling of lower Swat canal. The disputed property consisted of land as well as built up area in the shape of houses, shops and mosque. Respondent No.2 announced two awards, the one relating to built up property ad wells whereas the second award was given in respect of the landed property. The appellants filed two objection petitions against the two awards which were forwarded to the Referee Court for disposal under the Land Acquisition Act. Both the objection petitions were processed and after framing issues and recording evidence, both the objection petitions were dismissed by the learned Additional District Judge, Charsadda vide his judgments dated 13-5-1999 and 11-9-1999. These judgments have been assailed through the present appeals.

3. The learned counsel for the appellants at the outset stated that under section 53 of the Land Acquisition Act, 1894 the provisions of the Civil Procedure Code are applicable to all the proceedings before the Land Acquisition Court and therefore, the learned Court was bound to have drawn the decree sheets along with the judgments. Section 33 of the Civil Procedure Code provides that the Court, at the conclusion of the hearing of the case, shall pronounce the judgment and on such judgment a decree shall follow. A judgment without the decree sheet cannot be subjected to appeal because under section 96 of the C.P.C. an appeal lies against the decree and not against the judgment and the learned counsel argued that he made all the efforts to get the copy of the decree sheet but the same was not drawn, hence, the appeals were filed without the said requirements. Similarly, he referred to Rule 1 of Order 41, C.P.C. which requires that every memorandum of appeal shall accompany the copy of a decree sheet appealed from and of the judgment on which it is founded. Since the learned trial Court has not complied with the said requirement, therefore, by following the principle laid down in 2001 CLC 1847 the case has to be remanded for doing the needful.

4. In addition to the ground of non-availability of the decree sheet, there are several other defects in the impugned judgments. In one objection petition, the property consisted of the land as well as the superstructure and since the possession of the property had to be taken immediately for the purpose of completion of the Project, therefore, the learned trial Court has appointed Muhammad Taimur Khan, Advocate as Local Commissioner for assessment of appropriate value of the superstructure in possession of the appellants. The report of Local Commissioner has been cursorily rejected by the learned trial Court on the only ground that the said Local Commissioner was himself not a construction expert and he was not accompanied by an appropriate Engineer, so, the assessment of the Engineers of the acquiring department was believed. This attitude is violative of the principles laid down in the earlier judgment of this Court reported as CLC 1985 (Peshawar) 228 and PLD 1995 Pesh. 78 also supported by 1990 CLC (Lahore) 718 and the final verdict of the Honourable Supreme Court of Pakistan reported as PLD 1990 SC 1248 holding therein that the valuation by Engineering staff of acquiring department is not binding on the Court whereas the value of the superstructure by the Local Commissioner appointed by the Court has superior binding force. Moreover, the report of the Local Commissioner indicates that representative of the department i.e. S.D.O. was present and he signed the report in token of correctness of measurement. The Local Commissioner had reportedly assessed the price on the basis of local inquiry, therefore, such a report had considerable evidentiary value which has been ignored in the impugned judgments.

5. In R.F.A. No.69 of 1999 it has been pointed out that the learned trial Judge has carried an impression that the property was uncultivable and therefore, its price can be assessed as determined by the Land Acquisition Collector. There is considerable evidence available on the file to show that the property was being used for residential purposes and the basic amenities were available to convert it from agricultural land to the type fit for residential purpose. This fact was also ignored by the learned trial Court.

6. Similarly, in the judgment of the Land Acquisition Case No.22/4 of 1998 as many as seven issues, were reproduced but excepting the discussion on Issues Nos.5 and 7, the remaining issues, particularly issues Nos.2, 3 and 4, were neither discussed in the judgment nor any observation was made relating to those issues.

7. Since both the impugned judgments of the trial Court suffered from several defects, therefore, without commenting further on the merits of the case, both the appeals are accepted and the cases are remanded back to the learned trial Court for recording judgment on all the issues after listening to the arguments on behalf of the parties. Parties are directed to appear before the learned trial Court on 1-3-2005. H.B.T./333/P Order accordingly.