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Civil Petition No. 107/R of 1979, decided on 12th February 1980.

(On appeal from judgment and order dated 7th March 1978, of Lahore High Court at Lahore in Writ Petition No. 1274 of 1976).

-- S. 29-Compensation-Petitioner's counsel urging Commissioner to award at least same rates of compensation as awarded by him in specified case-Commissioner while accepting such plea, can not be said to have acted without lawful authority by not adverting to an order neither placed before him nor relied upon: [Compensation].

-- S. 29-New plea-Plea which could have been raised before Com missioner not raised before him but raised for first time: before High Court-Plea not allowed to be raised in Supreme Court.

Bashir Ahmad Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate- on-Record for Petitioner.

Sirajul Haq, Advocate Supreme Court and M. A. Siddiqul, Advocate-on -Record for Respondents.

Date of hearing : 12th February 1980.

-Leave to appeal is sought from the order dated 7-3-1979, passed by a learned Single Judge of the Lahore High Court, whereby a writ petition arising out of a dispute relating to award of com pensation for land acquired in Islamabad, was dismissed.

The petitioners were owners of land in the revenue estate of Thatta Gujran. The directive No. 1I5 for its acquisition was issued on 5-12-1968. The Deputy Commissioner, C. D. A., made an award of compensation on 21st of January 1969, which was set aside in appeal and the case was remanded for fresh decision. However, the Deputy Commissioner vide his 16-5-1972 gave the same compensation as was awarded earlier. The petitioners again filed appeal which was allowed by the Commissioner, C. D. A. on 26th of February 1973. Despite contest from the C. D. A, the compensation was increased on the ground that there was no justification for awarding "less rate than the rates previously awarded for the adjoining village Chahan". The Commissioner had also, before deciding the appeal seen the land in question.

Dissatisfied with the increase of compensation in appeal, the petitioners challenged the order of the Commissioner, C. D. A., through a writ petition in the High Court. The same having been dismissed they have filed this petition for leave to appeal.

Learned counsel for the petitioners has contended that the Commissioner having laid down the rule for the land in village Thatha Gujran with reference to the compensation awarded for the land in village Chahan, should have awarded the same rates as were fixed by his predecessor in the order dated 28-7-1964, whereby the appeals of the land owners of village Chahan were disposed of. The rates of Lapara and Las categories of land in that award, were nearly double the rates awarded by the Commissioner in this case. They were substantially better in case of Maira, Rakkar and Banjar lands but slightly lesser in case of Ghairmumkin lands. Same argument was raised before the learned Single Judge in the High Court but it was repelled for several reasons including; that the copy of the order (dated 28-7-1964) was not produced in the High Court and that the statutory functionaries, after applying the mind to the question' raised by the petitioners, had accepted the petitioners' plea for awarding the same compensation as awarded for village Chahan in the order dated 1-1-1972.

After hearing the learned counsel, we are of the view that the approach of the High Court was unexceptionable. Learned counsel for the petitioner' appearing before the Commissioner who passed the impugned order had urged that "they should be awarded at least the same rates which were awarded by the Commissioner, C. D. A., by his order dated 1-1-1972 in appeal for village Chahan". The Commissioner accepted the plea raised before him from the petitioners side. It cannot be said that he acted without lawful authority by not adverting to the order dated 28-7-1964 which was neither placed before him nor was relied upon. Similarly; for the same reason the High Court was justified in refusing to accept the argument that the award of village Chahan made in 1964 should have been the basis for the] compensation for their lands.

Learned counsel tried to argue that the award of 1964 and not that of 1972, in the circumstances of this case, could be treated as final award for village Chahan and that at the time of the acquisition in this case, the 1964, award only could be taken into consideration. It is 'not necessary for us to examine this argument. The plea raised by the learned counsel for the petitioners before the Commissioner was based on the award dated 1-1-1972. As noted earlier, the High Court was justified when deciding the writ petition, in exercise of its discretionary jurisdiction, not to accept the fresh plea which could have been raised before the Commissioner. Same consideration would apply to the point raised by the learned counsel in support of this petition. It is accordingly dismissed.

Petition dismissed.

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