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Civil Petition No. 42‑P of 1979, decided on 21st May, 1983.

(On appeal against the judgment of the Peshawar High Court, Circuit Bench, Abbottabad, dated 13‑12.1978, in R. F. A. No. 149 of 1975).

‑‑‑‑‑‑ S. 23(1),cl. fourthly‑Compensation‑‑Acquisition of house and complete ouster of residents from. Village and anscestral profession and trade‑Compensation for houses and other immovable properties belonging to such residents paid‑Claim of compensation for loss of earnings and trade of ferrying passengers and goods and of extracting floating timber from river‑‑Held, loss and damage or injurious effect for which compensation is claimable has to be necessarily related to land acquired under Land Acquisition Act‑Loss of income as ferry man was not on account of acquisition of houses‑Injury has to be related to land or property acquired being close to same so as to receive effect of acquisition directly, imminently and substantially Claim regarding loss of income, profession and trade not directly relatable to acquisition of houses and persons affected, therefore, not squarely covered by Land Acquisition Act, 1894.

Collector of Dinagepore v. Girja Nath Roy I L R 25 Cal. 346 ref.

Qazi Abdur Rashid, Advocate Supreme Court and S. Safdar Hussain, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 21st May, 1983.

‑The petitioner Malik Ghulam Haider Khan and 111 others seek leave to appeal against the judgment of the Peshawar High Court dated 13‑12‑1978 whereby a regular first appeal filed by them against the denial of compensation for the loss of earnings was dismissed.

The petitioners were all residents of village Darband in District Hazara and the land of the entire village, it is said, was acquired under the Land Acquisition Act for the purposes of constructing Tarbela Dam. The petitioners had houses in Darband and were gainfully employed on the river banks in ferrying passengers and goods and in extracting floating timber from the river. By the acquisition of the houses, the land and the construction of Tarbela Dam they were totally ousted from the village and their ancestral profession and trade. They were duly paid the compensation for the houses and other immovable properties which belonged to them and which were the subject matter compulsory acquisition. That compensation is not the subject‑matter of dispute. The petitioners wanted compensation for the loss of earnings anti trade of ferrying passengers and goods and of extracting floating timber from the river. They claimed Rs.20,000 per earning member of the family. Such a claim was not paid by the Land Acquisition Collector nor by the District Court. Their regular first appeal in the High Court also failed.

The learned counsel for the petitioner contended that the claim made by the petitioner was directly covered by clause fourthly of section 23, subsection (1) of the Land Acquisition Act and further support for it was obtainable from the decision of the Calcutta High Court reported as Collector of Dinagepore v. Girja Nath Roy (I L R 25 Cal. 346). It was contended that the loss of earning was substantial and if an extended meaning were given to clause fourthly or section 23, subsection (1) of the Land Acquisition Act, it should have been possible to allow the claim of the petitioners.

The relevant portion of section 23, subsection (1), clause fourthly reads as follows :‑

"23. Matters to be considered in determining compensation.(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings :"

The loss, the damage or the injurious effect for which compensation is claimable has to be necessarily related to the land acquired under the Act. In the case of the petitioner if that exercise is undertaken the claim for loss of earnings or trade must be related to the houses belonging to them which were acquired and for which compensation was duly paid. By no stretch of imagination, reasoning or logic can it be said that the loss old income as a ferrymen was on account of the acquisition of their houses. If the acquisition is confined only to the residential properties owned by them, for it was the only property belonging to them directly affected by acquisi tion, then they could still continue their profession but for the acquisition of properties belonging to others. Those others have been compensated and their matters are not in issue. The claim made by the petitioners wit regard to the loss of income, profession and trade is not directly relate able to the acquisition of their houses and as such they are not squarely covered by the law. In the case referred to above and relied upon by the learned counsel for the petitioners, on the erection of a bridge on river Tulai the ferry which was owned by Maharajah of Dinagepore went out of commis sion. T he land on which the bridge was to be constructed was acquired from the Maharajah and the ferry which was to be putout of commission was within 100 cubits of the bridge though it was not the subject‑matter of acquisition. The injurious effect of the acquisition and the construction of a bridge on the adjoining lands and rights therein was considered and to the extent of injury compensation was afforded. This case supports the principle that the inquiry has to be related to the land or property acquired being close to it so as to receive the effect of acquisition directly, imrilinentle and substantially. That requirements being absent, the petitioners cannot claim compensation. Leave to appeal is, therefore, refused.

M. Z. M. Leave refused.

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