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Petitioner: SHAFQATULLAH and others VS Respondent: COLLECTOR and others
Court Name: Peshawar High Court Judge(s): Salim Khan, Hamid Farooq Durrani Title: SHAFQATULLAH and others vs COLLECTOR and others Case No.: W.P. No, 49 of 2005 & 20 other W.Ps Date of Judgment:2006-05-31 Reported As: PLJ 2006 Peshawar 265 Result: Case remanded
JUDGMENT
JUDGMENT Salim Khan, J.--This judgment will dispose of the below mentioned 21 writ petitions as the broad facts, the applicable laws, and the main legal questions involved in them are common. These have arisen out of the awards for lands of the same area, and the petitioners of these writ petitions are demanding the same benefits which have been granted to the parties (appellants or respondents) of other objection petitions/appeals coming out of the same awards. The main facts leading to the filing of execution petitions by the present petitioners, their dismissal their filing appeals, and, after withdrawing the appeals against the orders of the Executing Court, their filing the present writ petitions, are that some lands were acquired in the area of Mauza Kotnajibullah of District Haripur vide Awards Nos, 2, 3, 7, 8. Then R.F.A. No, 3 of 1992 titled `Sarhad Development Authority Versus Sardar Fakhr-e-Alam and others' R.F.A. No, 9/1992, R.F.S. No, 11/1992, R.F.As. 24 of 1992, 25 of 1992, 56 of 1992, 64 of 1992, 77 of 1992, and 81 of 1992, were filed when the objection petitions of land owners, other than the petitioners of these writ petitions, were decided. The matter then went to the august Supreme Court of Pakistan, and, vide judgment and order dated 23.1.2001, the august Supreme Court of Pakistan dismissed the Appeals Nos, 1449 to 1460 of 1999. A review petition was also submitted but the same was also dismissed by the august Supreme Court. It is contended that F.A.Os. Nos, 7 to 10 of 2003 were also decided on 13.5.2004 where compulsory acquisition charges at the rate of 15% under Section 23(2) of the Land Acquisition Act and simple interest at the rate of 6% were allowed. 2. Then the petitioners filed their respective execution petitions. The learned Reference Court/Presiding Officer Executing Court dealt with these execution petitions, first the mind was given that the execution petitions on the basis of decree in favour of other persons, specially in
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R.F.A. No, 25 of 1992 and R.F.A. No, 56 of 1992, were executable and the petitioners were to get benefit of the decisions given in favour of other land owners, on the ground that the petitioners were similarly placed persons and were entitled to the same benefits to which the others were declared entitled. But then the learned Presiding Officer of the Executing Court, vide his judgments and orders, impugned in these writ petitions, dismissed the execution petitions. The petitioners of different writ petitions before us filed their respective first appeals against orders, but, after discussion in the. Court, they were constrained to withdraw the appeals and to file writ petitions. Hence the present writ petitions before us. 3. The individual exclusive facts of each of these writ petitions are given as below:-- W.P. No, 49/2005 `Shafqatullah and others vs. Collector and others'. The land of the petitioners was acquired, alongwith the lands of other owners, vide Award No, 2 dated 22.6.1988. Faqir Muhammad, predecessor-in-interest of the petitioners filed, objection petition which was dismissed vide judgment and decree dated 13.5.1992 of the learned District Judge/Referee Judge, Haripur. No further appeal was filed by the petitioners or their predecessor-in-interest. On the basis of decrees in R.F.As. Nos, 3 of 1991, 56 of 1992, 64 of 1992, 77 of 1997, and 81 of 1992, Faqir Muhammad filed execution Petition No, 6/10 before the Executing Court, where it was decided that the execution petition was not maintainable, because no decree was passed in favour of the petitioners. It was contended by the petitioners that execution Petition No, 8/10 (Sardar Shaukat vs. Collector) showed that the objection was only with regard to the amount assessed by the decree holder in Goshwara and the learned Executing Court had directed the respondents for deposit of dectetal amount. The petitioners further referred to the case of Gulab Khan vs. Collector and contended that the order of the learned Executing Court was incorrect, where it was held that there was no decree in favour of Gulab Khan or the petitioner. The petition of Faqir Muhammad was dismissed on 20.9.2004. The petitioners filed appeal before this Court, which was withdrawn, and the present writ petition was filed. (ii) W P. No, 51/2005 `Gulab and others vs. Land Acquisition Collector Haripur and others'. The land was acquired by the Collector Haripur vide Award No, 3 dated 26.6.1988 and Award No, 7 dated 27.6.1990, the property of the present petitioners was also included in the said awards. The other main facts have been mentioned above. The petitioners had not filed any objection petition or the first or second appeal. Relying on the judgments in R.F.As. Nos, 9 of 1992, 11 of 1993 and others, the petitioners filed execution Petition No, 5/10 dated 23.6.2000 before the District Judge, Haripur/the Executing Court. Their petition was first accepted, on 16.3.2000 and the respondents were directed to make the payment to the petitioners, but, lateron, the learned Addl; District Judge, Haripur the Executing Court dismissed the petition vide his order dated 28.10.2004 on the ground that there was no decree in favour of the petitioners, and the Executing Court did not have authority to execute the prayer without any decree. (iii)W.P No, 97 of 2005 Qazi Muhammad Afzal and others vs. Collector and others'. Certain lands were acquired vide Award No, 2 dated 22.6.1988. The petitioners had not filed any objection petition. The ground of the petitioners is that Petitioners Nos, 1 to 5 were minors while Petitioner No, 6 was a Parda Nashin lady. The other facts are common as narrated above. The petitioners filed execution Petition No, 18/10 on the ground that the benefit of R.F.A. No, 25 of 1992 dated 3.2.1999 and No, 56 dated 4.2.1999 be extended to the petitioners/land owners. The said petition was dismissed vide judgment and order dated 20.9.2004. The petitioners filed appeal which was allowed to be withdrawn, hence, the present writ petition. (iv)W.P. No, 98/2005 Qazi Shafahat Ahmad and others v. Collector and others'. The petitioners contended that certain land in Kotnajibullah, including the land of the petitioners, was acquired vide Award No, 2 dated 22.6.1988. The petitioners filed objection Petition No, 9/4 alongwith other Petitions Nos, 4/4, 34/4, 35/4 and 38/4 against the said award but those were dismissed on
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25.4.1992. The petitioners did not file any appeal while the others continued with the litigation upto the august Supreme Court of Pakistan, where decision was given in Civil Appeals Nos, 1449 to 1460 of 1999. FAO Nos, 7 to 10 of 2003 were also decided on 13.5.2004, whereby compulsory acquisition charges at the rate of 15% and interest at the rate of 6% were allowed. The petitioners filed Execution. Petition No, 19/10 on the ground that they were entitled to the benefit of judgments/decrees in RFA. Nos, 25 of 1992 and 56 of 1992. But, the learned Executing Court dismissed the execution petition on 20.9.2004, on the ground that there was no decree in favour of the petitioners. An appeal was filed, which was withdrawn by the petitioners, and the present writ petition was filed. (v) W.P. No, 114/2005 `Abdur Rehman and others vs. Collector and others'. The petitioners contended that certain land in Kotnajibullah, including the land of the petitioners, was acquired vide Award No, 2 dated 22.6.1988. The petitioners filed objection Petition No, 3/4 alongwith other petitioners which was dismissed on 28.3.1992. The petitioners did not file any appeal while the litigation of other land owners continued upto the august Supreme Court of Pakistan, where final judgment was given in C.P. Nos, 1449 to 1460 of 1999. The petitioners claimed benefit of judgment in R.F.A. No, 25 of 1992 and No, 56 of 1992. But the learned Executing Court dismissed the Execution Petition No, 10 of 2002 of the present petitioners on the ground that there was no decree in their favour. They filed appeal before this Court, which was withdrawn, and the present writ petition was filed. (vi)W.P. No, 115/2005 'Ma Janat Khatoon and others vs. Collector and others'. The petitioners contended that their lands, alongwith the other lands, situated in Kotnajibullah were acquired vide Award No, 2 dated 22.6.1988, and that the objection petition of the present petitioners was dismissed on 5.9.1992, but the petitioners did not file any appeal against the same. They were of the view that the benefit of judgments in R.F.A.No, 25 of 1992 and No, 56 of 1992 was extendable to them, hence, they filed execution petition/Application No, 44/6 dated 19.6.2002. But the same was dismissed vide order dated 20.9.2004. The appeal filed by the petitioners through F.A.O. No, 13 of 2005 was withdrawn, and the present with petition was filed. (vii) W.P. No, 116/2006 `Sardar Muhammad Bakhsh and others V. Collector and others. The petitioners contended that their land, alongwith the land of others, was acquired vide 'Award No, 8 dated 27.6.1990, that the petitioners filed Objection Petition No, 16/4, which was dismissed on 27.6.1993, but the petitioners did not file any appeal. They contended that the benefit of R.F.A. No,74 of 1993 was extendable to them, hence, they filed execution petition/Application No, 52/6 which was dismissed on 20.9.2004. The petitioners filed F.A.O. No, 13 of 2005 which was withdrawn, and the present writ petition was filed. (viii) WP. No, 117/2005 `Mian Dad and others vs. Collector and others'. The petitioners were of the view that their land, alongwith the land of other landowners, was acquired vide Award No, 2 of 1988. The objection Petitions Nos, 5/4, 11/4 and 30/4 alongwith other petitions against the same award were dismissed. The petitioners did not file any appeal. The cases of other land owners went upto the august Supreme Court of Pakistan, where judgment was granted in Civil Appeal Nos, 1449 to 1460 of 1999 (judgment reported as PLD 2001 SC 405). The petitioners filed execution Petition No, 4/10 on the strength of R.F.A. No, 25 of 1992 and No, 56 of 1992, claiming the benefit of decrees in the said cases. The execution Petition No, 4/10, however, was dismissed on 20.9.2004, the appeal was withdrawn by the petitioners, and the present writ petition was filed. (ix)WP. No: 118/2005 'Abdul Malik and others vs. Collector and others. The petitioners contended that their lands, alongwith the lands of other co-owners, situated in Kotnajibuliah were acquired vide Award No, 2 of 1988, that objection Petition No, 12/4 was filed by the petitioners but, on its dismissal, the petitioners did not file any appeal, however, the other landowners and the respondents went upto the august Supreme Court of Pakistan where final judgment was granted as aforementioned. The petitioners filed objection Petition No, 7/10 on the strength of R.F.A. No, 25 of
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1992 and No, 56 of 1992. But the execution petition was dismissed on 20.9.2004. the petitioners first filed appeal, which was withdrawn by them, and the present writ petition was filed. (x) W.P. No, 130/2005 `Gohar Rehman and others us. Collector and others'. The petitioners referred to Award No, 2 of 1998 regarding their lands, their objection Petition No, 36/4 which was dismissed, the litigation of the other land owners, the execution Petition No, 14/10 of the petitioners, their appeal and its withdrawal, and the filing of the present writ petition. The other facts of the case are the same as mentioned for the other above mentioned cases. (xi)W.P.No, 131 of 2005 Sardar Muhammad Nawaz and others v. Collector and others.' 23 kanals land in Khasra No, 4773 in Kotnajibullah owned by the petitioners was acquired by the Collector Land Acquisition vide Award No, 2 dated 22.6.1988. The petitioners did not file any objection petition while the other landowners litigated as mentioned above, while giving detailed facts. The petitioners filed execution Petition No, 13/10 dated 12.12.2002 claiming the benefit of R.F.A. No, 56 of 1992. The same was rejected by the Addl: District Judge/Executing Court vide judgment and order dated 20.9.2004. The petitioners filed appeal, but this Court allowed the petitioners to withdraw the same, and they filed the present writ petition. (xii) W.P. No, 132/2005 `Makkan vs. Collector and others'. The only difference between the present writ petition is that the objection petition filed by him was shown as No, 3/4 and the execution petition as No, 7/10. The other facts of this writ petition are similar with the other cases. (xiii) W.P. No, 133/2005 `Ghulam Sarwar and others vs. Collector and others'. The award number of the petitioners is No, 3 of 1998. The petitioners did not file any objection petition or appeal. The submitted execution Petition No, 10/10 on the strength of judgment and decree in R.F.A. No, 24 of 1992 dated 4.2.1979. But their execution petition was dismissed, their appeal was withdrawn, and they filed the present writ petition. (xiv) W.P. No, 134/2005 'Muhammad Shafi v. Collector and others'. The petitioner contended that his land was acquired vide Award No, 3 of 1988. He filed objection Petition No, 3/4 of 1992 for land measuring 19 kanals 14 marlas in Khasra No, 2363 situated in Kotnajibullah, the objection petition was dismissed, but the petitioner did not file any appeal. He relied on the litigation of other landowners and filed execution petition/Application No, 1/6 claiming therein that he was entitled to the benefit of judgment and decree in R.F.A. No, 24 of 1992. But the execution petition was dismissed. The petitioner filed but withdrew his appeal, and filed the present writ petition. (xv) W.P. No, 139/2005 `Miskin vs. Collector and others'. The petitioner claimed the acquisition of his land through Award No, 2 of 1988.He further contended that his objection Petition No, 34/4 was dismissed but he did not file appeal. He filed execution petition/Application No, 9/6 on the strength of R.F.A. No, 56/1994, but the same was dismissed on 20.9.2004. The appeal of the present petitioner was withdrawn by him and he filed the present writ petition. (xvi) W.P. No, 140/2005 'Muhammad Nawaz and others vs. Collector and others'. The case of the petitioners is the same to the extent of Award No, 2 and the common details given above. His objection Petition is No, 33/4 and his execution petition/application is No, 21/6. On withdrawal of his appeal, he filed the present writ petition. (xvii) W.P. No, 141/2005 'Muhammad Gulzar and an other vs. Collector and others'. The case of the petitioners was the same to the extent of Award No, 2 the litigation of the other land owners, but their objection petition number was 35/4 while their execution petition number was 11/6. The facts of dismissal of the same, the filing and withdrawal of appeal, and the filing of the present writ petition are the same as in other cases. (xviii) W.P. No, 142/2605 `Sardar Muhammad Nawaz and others v. Collector and others'. 20 kanals 10 marlas land situated in Kotnajibullah, owned by the petitioners, was acquired vide Award No, 3 dated 22.6.1988 by the Collector Land Acquisition. The petitioners did not file objection petition. The other landowners continued their litigation as per detail mentioned above. The petitioners filed
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execution Petition No, 12/10 dated 12.12.2002, claiming the benefit of the judgment in R.F.A. No, 24 of 1992 dated 4.2.1999. That execution petition was dismissed by the learned Addl. District Judge, Haripur/Executing Court on 20.9.2000 on the ground that there was no decree in favour of the petitioners. An appeal was filed by the petitioners in this Court, which was withdrawn on 30.3.2005, and the present writ petition was filed. (xix) W.P. No, 143/2005 'Muhammad Sadiq and others vs. Collector and others'. The objection petition of petitioners is shown as 9/4 and the number of his execution petition/application is 6/6, while the award number is 2 of 1988. The other facts till filing of the present writ petition are common with others. (xx) W.P. No, 144/2005 `Mehboob Elahi and others vs. Collector and others'. The same is the position of the case of these petitioners, except that their objection petition number is shown as 35/4, while execution petition/application number is 12/6 of 2002. (xxi) W.P. No, 145/2005 `Mst. Mumtaz Bibi and others vs. Collector and others'. Mst. Mumtaz Bibi and others contended that their objection petition was No, 38/4 and their execution petition was No, 14/10. The other details given by them are the same as in other writ petitions. 5. We heard the arguments of the learned counsel for the respective parties and perused the record. The learned counsel for the petitioners, while arguing the different writ petitions as mentioned above, referred to 1965 SC 382, PLD 1979 SC 599, PLD 1986 SC 188, PLD 1990 S.C. 361, 1996 SCMR 1185, CLC 1996 1640, 1998 SCMR 2197, 1999 SCMR 2009, PLD 1999 SC 592, PLD 2000 SC 263, 2002 SCMR 72, PLD 2005 Karachi 164 and 2006 SCMR 688 in support of their arguments. The learned counsel for the respondents, on the other side, referred to PLD 1965 SC 37, PLD 1976 Lahore 15, PLD 1976 Karachi 793, PLD 1977 SC 599, 1997 SCMR 1692, PLD 1999 S.C. 250, 2005 MLD 768 and 2005 MLD 1140 in support of their arguments. 6. The basic questions, which were taken up by the learned counsel for the parties, were argued at the initial stage, which are that whether the writ petition was maintainable in the circumstances of the cases in hand, whether third party could be impleaded in execution proceedings and whether question of compensation could be decided in a writ petition. The learned counsel for the respondents relied on 1995 CLC 548, PLD 1997 A.J.K. 33, 2000 YLR 2016, 1996 MLD 1399 and 2005 MLD 768. The present petitioners had filed appeals against the judgments and orders of the learned Presiding Officer of the Executing Court, but the same were withdrawn, after discussion in the Court. Some of the counsel for the petitioners contended that the petitioners were advised by the Court during the arguments that they should withdraw the appeal and file writ petitions. They further contended that the act or order of the Court could not prejudice a party. 7. In fact, the appeals were against the judgments and orders of the Presiding Officer of the Executing Court, and the discussion hereinafter will reveal that the fate of those appeals would be dismissal. The reason for the same is that, as to be clarified lateron, it was to be seen whether the Executing Court could go beyond and behind the decree and could add parties to the execution petitions, who were not parties to the main cases, in which the decrees before the Presiding Officer of the Executing Court for the execution were passed. The writ petition has its own peculiarities. The Court can direct a person to do something which he is required by law to do, or to avoid doing something which is prohibited by law. The filing of writ petitions in the circumstances of these cases, was the proper course. The Court cannot decide the question of compensation and cannot enhance the compensation while dealing with a writ petition. But, the Court can direct the concerned persons or authorities dealing with the fixation and enhancement of compensation, in the light of Article 199 of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the Constitution'), to act in accordance with law and to avoid acts not permitted by law. Such persons or authorities shall, in consequence of a decision in a writ petition, have to take up proceedings for proper fixation or proper enhancement of the compensation and for the related
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matters. 8. While dealing with the provisions of Order XLI Rule 33 read with sub-section (2) of Section 107 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code'), or with the provisions regarding execution, the proposition whether a third party can or cannot be impleaded in execution proceedings, alongwith the question whether a party who received compensation without protest, and did not file objection petition, can claim enhancement in compensation will be discussed. The question whether the judgments in land acquisition cases are judgments in personam and are not judgments in rem and whether a party filing reference only can gt benefit of the decree will also be discussed. The learned counsel for the parties discussed in detail the relevant provisions of law regarding execution proceedings. 9. Section 38 and Order XXI of the Code deal with execution of decrees. Section 38 provides that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Order XXI prescribes the mode, manner, processes and proceedings regarding execution of a decree. Rule 10 of the above said Order provides that where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or, if the decree has been sent under the provisions of Rules 5 to 9 of the said Order to another Court, then to such Court or to proper officer thereof. Sub-rule (2) of Rule 11 of the Order provides that save as otherwise provided in the case of a decree for the payment of money where the immediate execution thereof has been asked for by the arrest of the judgment- debtor, every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the particulars as mentioned therein. It means that the execution proceeding shall be initiated on a written application on prescribed form. 10.The word 'decree' has been defined in Section 2(2) of the said Code which means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint, the determination of any question within Section 144, and an order under Rules 60, 98, 99, 101 or 103 of Order XXI but shall not include. (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default: It is explained that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. The decree is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. 11.The word `decree-holder', according to Section 2(3) of the Code, means any person in whose favour a decree has been passed or an order capable of execution has been made. The word `judgment-debtor', according to Section 2(10) of the Code, means any person against whom a decree has been passed or an order capable of execution has been made. Section 26 of the Land Acquisition Act, 1894 (I of 1894) provides that every award shall be in writing, signed by the Judge, and shall specify the amount awarded as mentioned therein, alongwith the grounds of awarding each of the above said amounts. It further provides that every such award shall be deemed to be a decree and the statement of the grounds of every such award to be a judgment with the meaning of Section 2 of the Code. 12.An Executing Court, 'therefore, must have an application in writing as prescribed by Rules 10 and 11 of Order XXI of the Code before it in order to execute a decree, formally expressed by the Court, conclusively determining the right of the parties. A third party, not party to the proceedings of the suit or appeal in which decree has been passed, is not, and cannot be made, a party to the execution proceedings. A person, who has a cause of action, only can move a Court of law to
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initiate legal proceedings. A landowner, who receives the awarded compensation without a protest, relinquishes' his right to claim enhancement of compensation, and stands estopped by his own conduct. He loses his cause of action, and cannot, at a later stage, ask for the enhancement of compensation of his lands. An Executing Court being corum non judice has no power and authority to go beyond or behind the decree, and has to remain within the limits prescribed by the decree in respect of the rights and liabilities of the parties. Such a Court has no power or authority to make any modification, change, deletion, alteration, insertion or…
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