JUDGMENT SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Civil Revision Application No. 17 of 2012

 

 

APPLICANT

:

Zulfiqar Ali  through  Mr. Mukesh Kumar G. Karara, Advocate

 

RESPONDENTS

NOS.1 AND 2

 

:

 

Pakistan through Secretary Communication and Works and another through Mr. Kalander Bakhsh M. Phulphoto, Advocate

 

RESPONDENTS

NOS.3 TO 7

 

:

 

Deputy Commissioner and others  through Mr. Abdul Ghaffar A. Memon, Advocate 

 

 

 

DATES OF HEARING

:

30.01.2017, 06.02.2017 and 20.02.2017

 

DATE OF JUDGMENT

:

12.05.2017

 

J U D G M E N T

 

Muhammad Humayon Khan, J: This civil revision under Section 115 CPC is filed against the Judgment dated 24.11.2011 and Decree dated 28.11.2011 passed by the learned IIIrd Additional District Judge, Khairpur, in Civil Appeal No.69 of 2009, whereby, the learned Additional District Judge allowed the appeal of the respondents Nos. 1 and 2 and set-aside the Judgment dated 28.04.2009 and Decree dated 03.06.2009 passed by the learned Senior Civil Judge, Gambat, in F.C. Suit No. 36 of 2000. 

2.       The relevant and material facts of the case for the disposal of this revision application are that the applicant filed suit for declaration, compensation and permanent injunction against the respondents on 20.06.2000. The case pleaded in the plaint is that in the year 1995-96, the Federal Government through the technical and administrative assistance of respondent No.2 embarked upon a programe of constructing an additional Highway parallel to the existing National Highway and the new Road was named as “Additional Carriage Way”. It is further pleaded that for the purpose of carrying into effect such a big public project the authorities both at the Federal and Provincial level should have initiated proper proceedings under the Land Acquisition Act and all those parcels and pieces of land which were utilized or likely to be utilized should have been acquired under the said Act in due course of law but this did not happen and lands were acquired, Mosques were demolished and petrol pumps buildings, hotels and similar other installations were raised without even taking permission from their owners. It is further pleaded that the Deputy Commissioner called a meeting of the land owners and officials and decided a rate to be offered as compensation to those who were affected by such illegal acquisitions. It is further pleaded that the applicant owns and runs a Petrol Pump at Hingorja, which was located just a long side the old National Highway and its petrol and diesel units were hardly 67 feet away from the Road, office was situated 165 feet away from the Road and Mosques, hotel and a residential room were also constructed as subsidiaries of Petrol Pump. It is further pleaded that the new carriage way has not been completed at the side of the applicant but his petrol/diesel units and other subsidiaries have been damaged. It is further pleaded that since long period, the applicant has been running from post to pillar for getting compensation for the land and buildings damaged through construction of new Road but his request has not been entertained by anyone. It is further pleaded that the applicant could not ascertain whether any proceedings under the Land Acquisition Act have been taken or not. It is further pleaded that the applicant on account of construction of additional Carriage Way has lost his property and sustained damages of Rs.78,89,196/- and therefore the applicant filed the instant suit against the respondents, wherein, the applicant claimed the following reliefs:-

a)                 By a decree of the Court, it may be declared that the entire action of forcibly taking possession of the land and other installation specifically described above without having any re-course to law OR without initiating proceedings under land Acquisition Act are illegal, malafide, fanciful amounting to infringement of rights of plaintiff in his property.

b)                That the compensation for the loss caused to the plaintiff in the manner and form described in proceeding paragraphs and calculated in para 6 & 10 of the plaint which totally comes to Rs.____ may be awarded through a decree of the Court.

c)                 That costs of the suit and any other relief deemed fit and constant in the circumstances of the case may also be granted to the plaintiff.  

 

3.       The respondent No.2 filed written statement, wherein, the respondent No.2 denied the entire case of the applicant and pleaded that the applicant has been properly fully and adequately compensated and he has received the claim amount without any objection. In the end, the respondent No.2 prayed for the dismissal of the instant suit.

4.       The respondent No.5 filed written statement, wherein, the respondent No.5 raised legal objection that the instant suit is not maintainable and does not fall within the jurisdiction of Civil Court and further denied the entire case of the applicant and pleaded that the Land Acquisition Officer adopted the proper procedure as laid down in the Land Acquisition Act and Award was passed and the applicant has already obtained the compensation in the year 1995. In the end, the respondent No.5 prayed for the dismissal of the instant suit.

5.       The respondent No.6 filed written statement, wherein, the respondent No.6 denied the entire case of the applicant and pleaded that the Land Acquisition Officer adopted the proper procedure as laid down in the Land Acquisition Act and Award was passed and the applicant has already obtained the compensation in the year 1995. In the end, the respondent No.6 prayed for the dismissal of the instant suit.

6.       The learned Senior Civil Judge framed the following issues:-

i)                   Whether the suit of the plaintiff is not maintainable in law?

ii)                Whether this Court has got no jurisdiction to decide the matter?

iii)              Whether the defendants adopted legal course by acquiring the land of plaintiff under the land acquisition for the constructing new additional Carriage way?

iv)              Whether the Additional Carriage way has been constructed within the limit of 220 ft. reserve right of National Highway Authority?

v)                Whether the defendants without any notice to plaintiff have constructed newly additional carriage way by demolishing pacca construction of Hotel, Mosque, office occupying 27225 sq. ft. metaled surface area of plaintiff destroying pumping units?

vi)              Whether the plaintiff has sustained loss/damage of Rs.78,89,196/- as claimed in Para No.6 of the plaint?

vii)           Whether plaintiff has been paid any compensation in respect of his claim by the defendants?

viii)         Whether the suit of the plaintiff is barred under the terms and conditions of no objection certificate for establishment of Petrol Pump of plaintiff situated at Hingorja just side of old National Highway whether plaintiff himself has purchased land out of S. Nos. 3 of Deh Machar adjacent to his Petrol pump and High way at the rate of Rs.40,000/- per acre in the year 1998?

ix)              Whether the plaintiff is entitled to the relief?

x)                What should the decree be?

 

7.       The applicant examined himself and one witness namely Amanullah and produced documents. On the other hand, the respondents examined Munir Ahmed (Deputy Director National Highway) and Anis Ahmed Dasti (DDO- Revenue).

8.       The learned Senior Civil Judge by his Judgment dated 28.04.2009 decreed the instant suit against the respondents.

9.       Against the aforesaid Judgment, the respondents Nos.1 and 2 filed Civil Appeal No. 69 of 2009, which was allowed by the learned Additional District Judge vide Judgment dated 24.11.2011 and consequently instant suit of the applicant was dismissed.

10.     Against the aforesaid Judgment of the learned Additional District Judge, the applicant has filed this revision application under Section 115 CPC.

 11.    I have heard the learned counsel for the parties and perused the material available on the record.

12.     The learned counsel for the applicant raised the following contentions:-

i)                   The learned Additional District Judge has not framed points for determination and decided the appeal and hence the impugned Judgment is in violation of mandatory provisions of Order 41 Rule 31 CPC. In support of this contention, he relied upon the cases of (i) Syed Iftikhar-Ud-Din Haidar Gardezi and 9 others Vs. Central Bank of India Ltd. Lahore and 2 others (1996 SCMR 669), (ii) Allahyar and others Vs. Jiand and others (2010 CLC (Karachi) 1931) and (iii) Dr. Ghulam Hussain and 3 others Vs. Ahmed Nawaz and 8 others (2013 MLD (Sindh) 1845);

ii)                Since the provisions of Land Acquisition Act have not been followed, Civil Court has jurisdiction to entertain and decide the instant suit. In support of this contention, he relied upon the cases of (i) Pakistan through Secretary, Ministry of Communication and Works and others Vs. Syed Muhammad Ismail Shah and others (2014 SCMR 806), (ii) Muhammad Afzal Vs. Government of N.W.F.P. through Collector Revenue DCO, D.I. Khan and 4 others (2013 MLD (Peshawar) 1480) and (iii) Mian Rafat Mehmood and 5 others Vs. Director General, Lahore Development Authority, Lahore and 3 others (2016 CLC (Lahore) 408).

 

13.     On the other hand, the learned counsel for the respondents Nos.1 and 2 raised the following contentions:-

i)                   Province of Sindh has not been sued through the Secretary and therefore the instant suit is not maintainable and fit to be dismissed on this ground alone. In support of this contention, he relied upon the case of Government of Balochistan, CWPP&H Department and others Vs. Nawabzada Mir Tariq Hussain Khan Magsi and others (2010 SCMR 115);

ii)                Similarly, National Highway Authority has not been sued but its Chairman has been sued and therefore the suit is not maintainable. In support of this contention, he relied upon the case of Naveed Merchant and another Vs. Pakistan Institute of International Affairs through Accountant and another (PLD 2012 Sindh 23);

iii)              Since the Award was made, further remedies are available under the Land Acquisition Act and Civil Court has no jurisdiction to entertain instant suit. In support of this contention, he relied upon the case of Abdul Mannan and another Vs. Chairman, WAPDA and another (1990 CLC (Karachi) 1377);

iv)              Since the applicant has received the compensation and gave undertaking for not claiming any more compensation, he is estopped to resile from his undertaking. In support of this contention, he relied upon the case of Farzana Rasool and 3 others Vs. Dr. Muhammad Bashir and others (2011 SCMR  1361.

14.     The learned counsel for the respondents Nos.3 to 7 has adopted the arguments of the learned counsel for the respondents Nos. 1 and 2.

15.     The first point for determination in this revision application is that whether the Judgment of the learned Additional District Judge is in accordance with the mandatory provisions of Order 41 Rule 31 CPC.

16.     Rule 31 of Order 41 CPC provides that the Judgment of the Appellate Court shall be in writing and shall state (a) the points for determination, (b) the decision thereon, (c) the reasons for the decision and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. In view of this provision of law, I have carefully examined the Judgment of the learned Additional District Judge and found that instead of framing points for determination, he has decided the appeal issue-wise. Accordingly, the said Judgment is in accordance with the provisions of Order 41 Rule 31 CPC. My this considered view is supported by the case of  Syed Iftikhar-Ud-Din Haidar Gardezi and 9 others Vs. Central Bank of India Ltd. Lahore and 2 others reported in 1996 SCMR 669, wherein, their Lordships have held that:-

“This case is also hit by rule 31 as all the points which were argued and relied upon by the learned counsel for the appellants were not considered for their proper determination on the basis of available evidence. The Civil Courts had to decide the disputes issue-wise as far as it would be practicable in the given situation in each case. It is not the case of learned counsel for respondents that issues were abandoned with consent of learned counsel for the appellants. In case, learned counsel for the parties agree that specific issues alone should be dealt with, then, of course, Courts need not enter into discussion on other issues for their decision. No such consent was, admittedly, obtained in this case when the appeal was decided. We would also hold that evidence of Saeed Ahmed D.W. was not considered by the High Court for the just decision of the appeal. This being so, the appeal of the appellants shall be deemed to be still pending decision before the High Court.”

 

17.       The next point for determination in this revision application is that whether after the Award was passed, Civil Court has jurisdiction to entertain and proceed with the suit.

18.     The applicant himself has admitted in his cross-examination that the Land Acquisition officer has fixed compensation amount of his consumed property due to construction of Road. He has further deposed that he has given undertaking before receiving compensation amount that he will not claim again the compensation of same property. In view of this undertaking given by the applicant himself, the applicant is estopped from taking any somersault from the stand already taken by him.  

19.     The applicant’s witness Amanullah produced Award Statement as Exhibit 40-B, which is sufficient proof that Award was passed by the Land Acquisition Officer under the Land Acquisition Act. Accordingly, after the Award was passed all further remedies were available to the applicant under the Land Acquisition Act and Civil Court had/has no jurisdiction to entertain the suit.

20.     The learned counsel for the applicant has relied upon the cases of (i) Pakistan through Secretary, Ministry of Communication and Works and others Vs. Syed Muhammad Ismail Shah and others (2014 SCMR 806), (ii) Muhammad Afzal Vs. Government of N.W.F.P. through Collector Revenue DCO, D.I. Khan and 4 others (2013 MLD (Peshawar) 1480) and (iii) Mian Rafat Mehmood and 5 others Vs. Director General, Lahore Development Authority, Lahore and 3 others (2016 CLC (Lahore) 408) but none of the said case-law is applicable to the facts and circumstances of the instant matter.

21.     Apart from this, to attract the provisions of Section 115 CPC, the applicant has to satisfy this Court that the sub-ordinate Court has:-

a)              exercised a jurisdiction not vested in it by law, or

b)             failed to exercise a jurisdiction so vested, or

c)              acted in the exercise of the jurisdiction illegally or with material irregularity.

 

The learned counsel for the applicant has not been able to point out any illegality or irregularity committed by the learned Additional District Judge in the impugned Judgment. However, I have carefully gone through the pleadings and evidence of the parties and both the Judgments of the Courts below and I came to the conclusion that the Judgment of the learned Senior Civil Judge was contrary to law and the learned Additional District Judge was perfectly right in setting-aside the said Judgment. In these circumstances, the learned Additional District Judge has exercised jurisdiction in accordance with law and has not committed any illegality and irregularity in deciding the instant matter.

22.     In view of the above discussion, this revision application alongwith listed application is dismissed with no order as to costs.

 

J U D G E