2011 CLC 1586 (PLP)

SYED SAJJAD HASSAN SHAH, J.

Through this single judgment, I propose to dispose of R.F.A. No.5 of 2010 and R.F.A. No.9 of 2010 as both the appeals are the outcome of one and the same judgment and decree dated 6-11-2009 passed by learned Senior Civil Judge, D.I. Khan in connection with' Award No.125 dated 16-9-1995.

2. The facts forming the background of instant appeals are that land measuring 22 kanals, 12 marlas was the ownership of Malik Mumtaz appellant which was acquired by the respondents for construction of Flood Carrier Drain No.1, C.R.B.C. Stage-II Project WAPDA, D.I. Khan. The notification under section 4 of the Land Acquisition Act, 1894 was Issued and published in the official Gazette on 21-4-1992 and immediately thereafter, possession of the land was taken over by the respondents. Award No.125 was announced on 16-9-1995, wherein per kanal price of the land was fixed as Rs.5000/-.

3. Aggrieved from the rate of compensation, the appellant filed Objection Petition under section 18 of the Land Acquisition Act which was forwarded to the learned trial Court. The objection petition was dismissed under Order XVII, Rule 3, C.P.C., against which the appellant filed appeal before this Court. The appeal was accepted and the matter was remanded to the trial Court for decision afresh after affording opportunity to the parties to produce their evidence. During pendency of Reference Petition, the learned Referee Court appointed local commission who also submitted his report. After hearing the arguments, the learned trial Court by accepting the Reference Petition, enhanced the amount of compensation from Rs.5,000/- to Rs.25,000/-per kanal with 5% severance charges, 15% compulsorily acquisition ,6 charges and 6% simple interest from the date of possession till final payment. 3-A. Feeling aggrieved from the impugned judgment and decree dated 6-11-2009, both the parties have filed the instant appeals.

4. The learned counsel for the appellant contended 9} t the learned Referee Judge has failed to take into account future value of the acquired property, its location and potentiality, thus, fixed an incorrect amount of compensation. He further contended that the local commission appointed by the trial Court assessed the market value of the acquired property as Rs.80,000/- per kanal but the trial Court has given no reason to discard the assessment of the local commission. He prayed for enhancement of the rate of compensation on acceptance of his appeal.

5. As against that, the learned counsel for the respondents refuted the arguments of learned counsel for the appellant and contended that the market value of the acquired land was Rs.8000/- per kanal in the year 1992 but the learned trial Court failed to consider this aspect of the case and erroneously enhanced the compensation to a such higher rate, as there is nothing on record to show that in the year 1992, the market value of the acquired land was Rs.25,000/- per kanal. He further contended that the property of the appellant was neither having any future potential prospects nor the same was residential or commercial, thus, the fixation of such a high rate is the result of misreading and non-reading of the record.

6. I have considered the submissions of learned counsel for the parties and carefully perused the record.

7. The only question to be determined in the instant case is whether the appellant can claim the compensation more than what he has claimed before the Collector or not? Perusal of the record reveals that pursuant to notification under section 4 of the Land Acquisition Act, the appellant along with other landowners appeared before the Collector and claimed Rs.25,000/- per kanal as compensation of his land. He has also put his signature on the joint statement Exh.P.W.3/4 recorded on 4-10-1994. In such eventuality, it can be safely said that he has waived of his right to claim compensation as the appellant demanded more than the amount as claimed before the Collector.

8. The provision of section 25(1) of the Land Acquisition Act, 1894 is reproduced below for ready reference:

"When the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section II." The very purpose of enactment is to protect the interest of acquiring body and that the claimant must be vigilant. The principle enunciated in the said section is that where the party has claimed certain sum before the Collector in pursuance of notice under section 9 of the Act ibid, he cannot claim the larger amount than claimed before the Collector. By issuing notice under section 9 of the Act, the interested person is provided an opportunity to file his claim as to quantum of compensation and about the measurement of the property before the Collector for the adjudication of his claim, in absence of which, the Collector has no occasion to adjudicate upon his claim.

9. Section 15 of the said Act provides that in determining the compensation the Court shall be guided by the provisions of sections 23 and 24 of the Act. The said provisions shall be read along with the provisions contained in sections 9, 11, 18 and 25 of the Act ibid not in isolation. The contention that section 15 is not controlled by section 25 would render the provisions of section 25 as redundant. It is settled principle of law that the redundancy cannot be attributed to the legislature. The scheme of the Act reveals that section 25 has been placed in the Act after sections 9, 11, 15 and

23. In such eventualities, the determination of compensation by the Court is subject to the provisions of section 25 of the Act ibid.

10. As observed in the' earlier part of the judgment, after the receipt of notice under section 9 of the Act, the appellant did appear before the Collector and lodged his claim for compensation. His statement along with others was recorded which he has duly signed and same has went unquestioned by the objector, therefore, the provisions of section 25(1) of the Act are fully applicable.

11. The provisions of section 25 of the Act, as stated above, were considered by the august Supreme Court in the case Hyderabad Development Authority and another v. Karam Khan Shoro (1985 SCMR 45).. In the titled case, the landowners preferred their claim before, the Collector for a compensation of Rs.60,000/- per acre. The Collector allowed compensation of Rs.20,000/- per acre. The Referee Judge enhanced the compensation to the tune of Rs.1,08,900/- which was reduced in appeal to Rs:70,000/- per acre. The provisions of section 25 of the Act were considered by the august Supreme Court which are reproduced for ready reference as under:

'The section provides for three classes of cases. The first clause of the section refers to the case where the applicant has made a claim for compensation pursuant to a notice given under section

9. In that case, the amount awarded to him by the Court i.e. by the Judge to whom the reference made, shall not exceed the amount so claimed and at the same time it shall not be less than the amount awarded by the Collector under section 11." In another case titled Muhammad Sharif v. Afsar Textile Mills Ltd. and another (1985 SCMR 1181) the compensation was determined for different categories of land by the Acquisition Collector after adverting to the claim of landowners. The landowners claimed o6mpensation in their reference application at a flat rate of Rs.6400/- per acre without reference to the classification, however, during the hearing of the reference, the landowners sought the enhancement of the flat rate of Rs.6400/- per acre, claimed Rs.100 per marla (Rs.16000 per acre for the rural land) and Rs.500/- per marla (Rs.80,000/- per acre for the urban land). The amendment was allowed by the learned Referee Court on the ground that the same amount was claimed by the applicants in response to notice under section 9 of the Act. This order was challenged by the other side and the matter was taken before the august Supreme Court. In the light of section 11 read with sections 8, 12 and 18, it was observed that: "Section 11 of the Act provides for an inquiry by the Collector into the objections made by a person interested pursuant to the notice given under section 9 of the Act in respect of the interest in the land, the measurements made under section 8 and the value of the land at the date of the publication of the notification under section 4(1) of the Act. The inquiry is of an administrative nature and the award made is a decision conclusive qua the Collector under section 12 of the Act. It is only if a judicial ascertainment of value is desired by the owner that he can obtain it by requiring the matter to be preferred by the Collector to the Court under section 18 of the Act. Reading sections 9, 11, 18 and 21 together what is imperative is that the claimant must give out the particulars of the claim as to the nature of the interest and the amount of compensation desired for it. In other words he should fully present his case before the Collector as this in terms is his pleadings to which he remains confined till the decision of the Collector in regard to the compensation payable. Necessarily, therefore, he is precluded from making out a fresh case either by way of supplementary claim to compensation or otherwise at the stage of judicial determination. This is what is emphasized by Curgenven, J., in Secretary of State v. C.R. Subramnia Ayyar AIR 1950 Mad. 576, and I see much substance in it as the pleadings are a foundation for the grounds on which an objection is taken to the award while seeking a judicial determination under section 18 of the Act. In effect, therefore, it alone becomes a matter referred under section 18 of the Act and the Court has no power to determine or consider anything beyond it. In the present case a higher amount was claimed pursuant to the notice issued under section 9(2) but in the written application filed before the Collector a flat rate of Rs.6,400/- per Acre was claimed as the value of the land acquired which to all intents and purposes had not been pleaded and did not become the subject-matter of inquiry under section 11 of the Act. This being so it was a case where he had intentionally waived his right to claim a higher amount with the full knowledge of his existing right which, in law, amounted to an implied agreement not to claim a higher amount. Therefore, he could not later be allowed before the Court to which the matter was referred to re-assert his existing right to a higher amount as the matter referred for determination was his specific objection to the award, that is, the value per Acre of the land, as its market price, irrespective or classification, and, accordingly, the amount claimed was its integral part."

12. In view of the above principle as laid down by august Supreme Court, there is no room left for further discussion on the subject-matter, as such, the appellant is also legally not entitled for seeking the amount of compensation of the property acquired more than that which he had claimed before the Collector i.e. Rs.25,000/- per kanal. He is entitled at the rate as he himself sought as compensation of his land.

13. In view of what has been discussed above, both the appeals fail and are hereby dismissed, leaving the parties to bear their own costs. H.B.T./203/P?????????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.