2010 PLP 330 (YLR)

ARSHAD NOOR KHAN, J.

By this constitutional petition, the petitioner has challenged the order dated 12-1-2007 passed by the learned Additional District Judge, Naushahro Feroze, whereby the application under sections 12(2) and 31(2) of Land Acquisition Act was dismissed on the ground that the petitioner may approach to the Court after examination of some material witnesses, if so desired. The facts leading to the present petition, in brief, are that the land of the petitioner bearing S.Nos.500(1), 501, 67 and 68 Deh Mari Taluka Moro District Naushahro Feroze, measuring 5-19, 5 acres 239035 sq. ft. and acquired plot and land structure measuring 1-9 acres 53361 sq ft. constructed solid bricks platform measuring 218000 sq. ft. installed four pump units, 24 electric polls, constructed pacca park coupled with land so acquired by the respondent No.1 on the request of respondent No.2 for construction of road. The award was passed by respondent No.1 on 31-1-2004. The said award was passed by the respondent No.1 to the tune of Rs.80,99,

484. The said amount of award was neither paid to the petitioner nor was deposited under section 31 of the Land Acquisition Act before the acquisition Court. The petitioner has filed reference under section 18 of Land Acquisition Act, which is pending adjudication before the learned Additional District Judge, Naushahro Feroze. During the pendency of the land acquisition suit, the petitioner filed the aforesaid application for direction to the respondents to deposit the amount of award in Court which request of the petitioner has been turned down by the learned trial Court merely on the ground that it is yet to be ascertained as to whether the award is sustainable or not and the petitioner may apply to the Court after examination of some material witnesses, if so desired. The petitioner has challenged the said finding of the learned trial Court in this constitutional petition. We have heard Mr. Ghulam Shabbir Dayo, learned counsel for the petitioner and Mr. A.M. Mobeen Khan, learned counsel for the respondent National Highway Authority, Mr. Aijaz Ali Mangi, learned DAG for respondent No.6 and Mr. Imtiaz Ali Soomro, learned Assistant Advocate-General for the remaining official respondents. Mr. Ghulam Sabir Dayo, learned counsel for the petitioner has contended that it is the right of the petitioner to have received amount awarded by the land acquisition collector under protest and for that purpose, in case, if the land acquisition officer has not deposited the award amount in Court, the Court can direct land acquisition officer to deposit the amount of award in Court and the prayer of the petitioner has been unlawfully turned down by the learned lower Court on flimsy grounds. Mr. A.M. Mobeen Khan, learned counsel for the respondent National Highway Authority did not controvert the arguments advanced on behalf of the petitioner. However, he has opposed the prayer made by the petitioner in this petition. Mr. Aijaz Ali Mangi, learned D.A.-G. as well as Mr. Imtiaz Ali Soomro, learned Assistant Advocate-General for the official respondents have conceded that in view of section 31 of the Land Acquisition Act the whole award amount is liable to be deposited in Court; therefore, they will not oppose the direction to the respondent National Highway Authority to deposit the award amount in Court. We have considered the arguments advanced on behalf of the parties and have gone through the material available before us. It is not disputed that the land in question belongs to the petitioner has been acquired by the respondent No.1 for the benefit of national highway authority for construction of the road and respondent No.1 has passed the award in the sum of Rs.80,99,484 and respondent No.1 i.e. land acquisition officer, in his comments have candidly admitted that payment of compensation was delayed duet to non-allocation of funds by the acquiring agency. The admission of respondent No.1 therefore, shows that the amount passed by him in the award has not been deposited in Court. Section 31(2) of Land Acquisition Act postulates that in case consent for acquisition has not been given by the land owner or if the person is not competent to alienate the land, or if there is any dispute as to apportionment of it, the Collector may deposit the amount of compensation in the Court, further more, in case if the parties are not receiving the award amount or the parties are not traceable then land acquisition officer is therefore, duty-bound to follow the provision of section 31(2) of Land Acquisition Act though the parties have approached to him for compliance of section 31(2) of Land Acquisition Act or not. Since it is statutory obligation on the part of land acquisition officer to deposit the amount of award in Court but as per comments of the land acquisition officer, he was handicapped to deposit the said amount for want of allocation of funds by the agency for whom the land was acquired. The petitioner rightly drawn the attention of the learned trial Court to seek direction to deposit the award amount in Court in view of section 31 (2) of the Land Acquisition Act but in our humble opinion the learned trial Court without examining the provision of section 31, ibid, passed the order to the effect that it is yet to be ascertained as to whether the award passed by the land acquisition officer is sustainable or not and the petitioner may approach by filing of other application after recording of evidence of the material witnesses. We cannot approve the finding of the learned trial Court for the simple reason that section 31, ibid, is complete code, in case, if the parties have not received the compensation, the land acquisition officer is duty bound to deposit the same in Court. The finding of the learned trial Court; therefore, does not impress us. We, therefore, allow the petition, set aside the findings of the learned trial Court vide order dated 12-1-2007 with direction to respondents Nos.2 to 4 to deposit the award amount before the learned trial Court within two weeks hereof and the learned trial Court will assure that the said amount is deposited before him as per direction of this Court and after deposit of the said amount in Court, he may release the same to the party in accordance with law. Petition stands disposed of in terms of the above observation. M.H./K-16/K Case remanded.