2008 PLP 560 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioners filed R.F.A. No.59 of 1991 against the judgment of the Referee Judge in an acquisition matter praying for the enhancement of the compensation. During the pendency, of the R.F.A. before the learned Peshawar High Court, Peshawar, the petitioners made an application (C.M.A. No.62 of 1996) for treating the RFA partly as constitutional petition as well. Vide order dated 10-7-1999, a learned Single Judge of the Peshawar High Court converted the R.F.A. into a writ petition which was numbered as Writ Petition No.957 of 1999. The same was dismissed by the learned Division Bench of the Peshawar High Court, vide impugned judgment dated 1-7-2004, and the acquisition proceedings were held to be valid.

2. The learned counsel for the petitioners vehemently argued that he had moved an application for conversion of the R.F.A. into a writ petition only to-the extent of questioning the validity and legality of the acquisition proceedings and not regarding enhancement of compensation. Therefore, there was no occasion for the Peshawar High Court to dispose of the matter of enhancement of compensation merely on the ground that the same could not be determined in constitutional petition. It was further submitted that the entire R.F.A. could not be converted as writ petition as the matter for enhancement of compensation was governed by the provisions of the Land Acquisition Act, 1894 which was to be finally disposed of by the learned High Court on merits. It was lastly submitted that the petitioner would not challenge the validity of the acquisition of the land. Therefore they would seek to withdraw their application (C.M.A. No.62 of 1996) so that the R.F.A. could be disposed of on merits by the High Court without entering into any question of legality of acquisition proceedings.

3. The learned counsel for the respondents have stated that they did not have any objection if the application (C.M.A. No.62 of 1996), of the petitioners is allowed to be withdrawn. They have, however, requested for the early disposal of the R.F.A.

4. By consent of the parties, this petition is converted into appeal and the same is allowed. Consequently, the impugned judgment, dated 1-7-2004 passed by a learned Division Bench of the Peshawar High Court passed in Writ Petition No.957 of 1999 is partly set aside and modified to the extent of determination of question of enhancement of compensation. Writ Petition No.957 of 1999 is reconverted into R.F.A. No.59 of 1991 which shall be deemed to be pending for its disposal by the High Court on its merits and in accordance with law only with regard to quantum of compensation of the land. The Registrar of the Peshawar High Court is directed to place the R. F. A. No.59 of 1991 before the learned Chief Justice who may consider the desirability for its early disposal. There shall be no order as to costs. H.B.T./M-190/SC Petition allowed.