1974 PLP 354 (SCMR)

MUHAMMAD GUL, J.

By means of Mutation No. 708, attested on 27‑3‑1950, State land measuring 9 kanals 16 marlas out of Khasra No. 480, situate in Mahal Tukra No. I, Tehsil and District Peshawar was transferred to the petitioner herein for Rs. 2,

450. However, physical possession of the area transferred to the petitioner could not be delivered because it was then in occupation of nomads who had raised some Kutcha structure over it and who refused to part with the possession of the land in favour of the petitioner. In 1952, the Government asked the petitioner to reconvey the land to the Government on payment of Rs.2,450, the price he had earlier paid for the same, to the Government. This being unacceptable to the petitioner, the Government proceeded to acquire the land under the Land Acquisition Act, 1894 (hereinafter called the Act). Accordingly, a notification was issued under section 4 of the Act on 5‑4‑1954. This was followed by another notification under section 6 of the Act on 14‑4‑1954, declaring that the land was needed for public purpose. The Acquisition Collector thereupon proceeded to determine the market value of the land which vide his award dated 4‑12‑1954, was assessed at Rs.2,450, besides 15% of the same being payable as compensation for compulsory acquisition. Dissatisfied with the above award, the petitioner went up in appeal to the Commissioner who directed that the matter be referred to the District Judge under section 18 of the Act. The matter thus came up for consideration of the Additional District Judge, Peshawar who vide order dated 30‑1‑1961, assessed the market value of the land at Rs.2,12,428, besides 15 % for the compulsory acquisition of the land. Two appeals were preferred against that order, one by the petitioner for the enhancement of the market value and the other on behalf of the Collector for its reduction. During the pendency of the appeals, notifications Nos. 14352/Rev,, dated 8‑5‑1962 and 18620/Rev., dated 4‑7‑1964 were issued cancelling the earlier notifications of 5‑4‑1954 and 14‑4‑1954, and thus withdrawing from the acquisition proceedings. As a result of these notifications it was prayed on behalf of the Collector that the two appeals against the order of the Additional District Judge be dismissed as having become infructuous. The petitioner on the other hand alleged actual delivery of possession of the land to the Government and that, therefore, the said two notifications issued in April 1954 could not validly be cancelled. As there was no evidence on the file about the delivery of possession of the land to the Government under the notifications issued under sections 4 and 6 of the Act, the High Court sent the record of the case to the Acquisition Collector for a report after recording evidence of the parties as to whether possession of the land had been delivered to the Government. The Acquisition Collector, vide his report dated 17‑10‑1972, found that the petitioner was never in possession of the land, nor its possession was delivered to the Government under notifications of April 1954. Agreeing with the report of the Acquisition Collector, the learned Judges of the Division Bench held that the Government was within its right to withdraw from the acquisition under subsection (1) of section 48 of the Act and a fortiori, the two appeals had become infructuous and were dismissed as such. The case, however, was remitted to the Acquisition Collector for determining the amount of com pensation, if any, to which the petitioner might be entitled under subsection (2) of section 48 of the Act. In seeking leave against the above order of the High Court,, the petitioner's learned counsel contended that the High Court was wrong to have remitted the case to the Acquisition Collector for an enquiry about the delivery of possession of the land to the Government. The argument was that the two appeals taken to the High Court were from the order of the Additional District Judge and not that of the Acquisition Collector, and, therefore, the case, if at all, should have been remitted to the Additional District Judge for further enquiry and not to the Acquisition Collector. As we look at the matter, the question whether possession of the land was taken by the Government was essentially one of fact which stands concluded against the petitioner by the concurrent findings of the learned Additional District Judge and the High Court. Therefore, the High Court was right to hold that the Government was within its rights to withdraw from, the acquisition proceedings under section 48(1) of the Act. The objection taken on behalf of the petitioner concerns matter of procedure only which has not affected in any manner, the merits of the case. We find no merit in this petition which is hereby dismissed. Leave refused.