1989SCMR590 (PLP)

Date of hearing: 8th October, 1988. SAAD SAOOD JAN, J.‑‑Land falling in village Thapia of Abbottabad District was acquired by the authorities in connection with the construction of the Tarbela Dam. Proceedings were initiated by the Land Acquisition Collector for the determination of the compensations and the apportionment thereof among persons interested therein. In this appeal we are concerned with a piece of land, measuring 7 kanals and 4 marlas , falling in four khasra numbers. Admittedly, three‑fourths share in this land was owned by the respondents who are real brothers. As regards the remaining one‑fourth share, it was owned by the appellants but had been mortgaged with the respondents. The dispute between the parties who are related inter se relates to the compensation payable in respect of this one‑fourth share.

2. Before the Land Acquisition Collector the owners in the village allegedly made a joint statement to the effect that the compensations should be apportioned among them in accordance with the entries in the revenue record and that the mortgagees should be paid only the principal amounts. The Land Acquisition Collector acted on this statement and, accordingly, allowed the respondents only the principal amount in respect of their mortgage right. Being dissatisfied with this decision they applied to the Collector for making a reference to the Court under section 18, Land Acquisition Act. Their case was that even though the revenue record showed them only as mortgagees in respect of the share in dispute, yet, on account of the failure of the mortgagors to redeem the mortgage within the prescribed period, they had become its owners too; consequently, they were entitled to receive compensations for the whole land. The Collector allowed their application and made a reference to the Court. The Additional District Judge however rejected the reference on the ground that instead of being preferred under section 30 it had been made under section 18, Land Acquisition Act, and that he was not competent to entertain it.

3. The respondents called in question the legality of the order of the learned Additional District Judge in the High Court through a revision petition. A learned Single Judge accepted their revision petition, holding that so long the reference had been properly made, it was immaterial whether it had bear preferred under section 18 or under section 30 of the Act. Accordingly, he remanded the case to the learned Additional District Judge for a decision on merits.

4. In this appeal the main contention on behalf of the appellants is that in view of the joint statement of the land‑owners of the village before the Land Acquisition Collector that the compensations be paid in accordance with the entries of the revenue record and that the various mortgagees should receive only the principal amounts, it was not open to the respondents to ask the Collector to make a reference to a Court. 1n support of this contention, reliance has been placed upon section 29, Land Acquisition Act which reads as follows:‑‑ "Where there are several persons interested, if such persons agree in the apportionment of the compensation, the particulars of such apportionment shall be specified in the award, and as between such persons the award shall be conclusive evidence of the correctness of the apportionment".

5. On the other hand, the respondents reiterate their stand that as the appellants did not redeem the mortgage within the prescribed period, they have no longer any right in the land in dispute and as such they cannot be regarded as persons interested in the apportionment of compensations within the meaning of section 29, ibid. They also dispute the correctness of the joint statement and point out that one of them was not a party to it.

6. After hearing the learned counsel for the parties, we are of the view that the questions whether the appellants have lost their rights in the land in dispute and whether by the alleged joint statement the respondents had given up their claim to the entire amounts of compensation, need a proper trial and in the A absence thereof the dispute between the parties cannot be resolved. Any observations made by this Court at this stage may prejudice the case of one of the two parties at the trial. We would accordingly withdraw the leave granted to the appellants and dismiss their petition. There will be no order as to costs. A.A./A‑385/S Petition dismissed.