P L D 1989 Peshawar 64 (PLP)

Muhammad Younas Khan Tanoli for Respondents. Date of hearing: 17th October, 1988. IBNE ALI, J.‑‑This first appeal under the Land Acquisition Act has arisen in the following circumstances:‑ Some land in the area of village Lengra, Tehsil and District Abbottabad was acquired for public purposes by the Government to construct a bridge called Ayub Bridge. A notification under section 4 of the Act was accordingly issued on 20‑7‑1977. Two Flour Mills comprised in Khasra Nos. 1680 and 1681 owned by the respondent herein were situated in the vicinity of the bridge in question and on account of the construction of the bridge the said two Flour Mills were perpetually rendered inoperative and came to stand‑still, depriving the respondent of permanent income. The respondent, therefore, filed before the Collector objection petition under section 23 of the Land Acquisition Act claiming Rs. 1,00,000 as compensation with respect to the two Flour Mills the Collector referred the Objection Petition to the Reference Judge who, recorded evidence of the parties and also appointed Commissioner to visit the spot and assess the damage caused to the respondent on account of the two Flour Mills. The Commissioner assessed the damage to the tune of Rs. 30,000 per Mill. The learned Acquisition Judge, however, disagreed with him and fixed Rs. 50,000 per water mill and passed decree in the following terms, vide his order dated 4‑9‑1985:‑- "The crux of my above discussion is that I decide the reference in the terms that the petitioners/ objectors have been badly affected due to damage to their two water mills situated in Khasras Nos. 1680 and 1681 by acquisition, their compensation was not paid to the objectors/ petitioners. They be paid Rs. one lac (50,000 per water flour mill) with 15% compulsory acquisition charges and 8% compound interest from the date of possession till 22‑5‑1983 and simple interest @ 6% per annum from 23‑5‑1983 till the final payment to the petitioners. As regards annual income of one flour mill, I would fix Rs. 2,100 per year. There were two water flour mills in all. The income of flour mills awarded will be from 20‑7‑1977 till the payment of money with 15% compulsory acquisition charges, 8% compound interest till 22‑5‑1983 and @ 6% simple interest with effect from 23‑5‑1983 till the final payment to the petitioners. With no order as to costs".

2. We have heard the learned counsel for the parties and gone through the evidence on record. The learned counsel for the appellant has raised two‑fold preliminary objection to the competency of the Objection Petition of the respondent, namely:‑-- (1) That the Objection Petition was to be filed under section 18 of the Act and the respondent filed it under section 23 thereof, the Objection Petition was incompetent and the Acquisition Judge would have no jurisdiction to entertain it. (2) That the Objection Petition filed by the respondent was res judicata and that he had already filed the suit for the same relief in the Civil Court and his suit was dismissed and his appeal also failed.

3. As regards the first objection, we have not been able to appreciate it in the facts and circumstances of‑this case. It is conceded that the Objection Petition has arisen out of the same acquisition proceedings or for that matter, cause of action accrued to the respondent out of the same proceedings therefore, he was to have sought his remedy under the law governing the same proceedings. Now even though the respondent filed Objection Petition under section 23 of the Act instead of under section 18 thereof, it should not be the ground to deprive him of the remedy available to him under the relevant law viz. the Land Acquisition Act. The Objection Petition filed by him under section 23 of the Act was just a misdescription and it should not render it incompetent. It may be observed that in a given case the Court, while adjudicating upon the matter, will not go into technicalities of trivial nature if the law under which remedy has been sought is applicable to the case. We, therefore, hold that as section 23 of the Act under which the respondent filed the Objection Petition was a misdescription and as otherwise his case was covered by the same Act, the Objection Petition is 'to be treated under section 18 of the Act. 3‑A. As regards the second objection, this was also raised before the learned Acquisition Judge but the appellant failed to bring any evidence worth consideration to show that for the same relief the respondent has already litigated in the civil Courts. Before us also the learned counsel was unable to bring on record any positive proof in support of this objection. The learned Acquisition Judge was therefore, right to repel the objection. Even otherwise, this objection has not beer raised in the present appeal and on this score also, the learned counsel cannot be allowed to raise it at the time of hearing of this appeal, the moreso as he was unable to produce any cogent evidence of unimpeachable character that the respondent had already failed in securing the relief before the civil Court.

4. On merits, we find that the decree of the learned Acquisition Judge is based on evidence. It is clear from the evidence on record that the watercourse was changed due to the construction of Ayub Bridge and the two water mills of the petitioner became inoperative and came to standstill. Thus it is obvious that the damages in terms of financial loss were perpetually caused to the respondent.

5. Now as regards the amount of compensation in the sum of Rs.50,000 per mill awarded to the respondent it seems to us to be rather excessive. He had appointed Commissioner to visit the spot and assess the damages caused to the petitioner on account of the two water mills. The Commissioner was examined in support of his report but nothing was brought out from him to show that the assessment of Rs.30,000 fixed by him was minimum. We are, therefore, of the view that the sum of Rs.30,000 per mill would be just and fair compensation to be awarded to the respondent.

6. As a result we, while partially allowing this appeal, fix the amount of compensation in the sum of Rs.30,000 per mill instead of Rs.50,000 per mill and in other respects the decree of the learned Acquisition Judge is maintained, with no order as to costs. A.A./678/P Appeal partly allowed.