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Petitioner: The Collector, Mardan And 2 Other VS Respondent: Mst. Taj Bibi And 14 Other
Court Name: Peshawar High Court Judge(s): Ghulam Safdar Shah, Abdul Hakim Khan, Shah Zaman Babar Title: The Collector, Mardan And 2 Other vs Mst. Taj Bibi And 14 Other Case No.: Regular First Appeal No. 21 of 1964 Date of Judgment:- Reported As: PLD 1972 Peshawar 197 Result: Reference answered
JUDGMENT
JUDGMENT GHULAM SAFDAR SHAH, C. J.---While hearing R. F. A. No. 21 of 1964 and 11 of 1968 (the former by a Division Bench and the latter by a learned Single Judge) the learned Judges felt some difficulty in regard to the true scope of section 18 of the Land Acquisition Act, 1894 (hereinafter called the Act) in view of conflict of opinion between the various High Courts of Indo---Pak sub-continent and consequently have referred to this Bench for decision the following three questions by two separate referring orders;- R. F. A. No. 21 of 1964: "(1) When once a reference is made by the Collector, whether the District Judge has the jurisdiction to go into the question of limitation for finding out as to whether the objection application had been file before the Collector within time or not? (2) Which is the date from which the period of limitation of six months mentioned in section 18, subsection (2), clause (b) starts and as to whether the six months period of limitation could be extended under any circumstances?" R. F. A. No. 11 of 1968: "(3) Whether a reference can be thrown out by the Court on the ground, that the application was not made to the Collector within six months, particularly when an objection in this regard was already raised and decided in favour of the objector under section 18-B ?" 2. It would be seen that in substance this Bench is required to answer only two questions for one of the questions is common to both the referring orders; except that in R. F. A. No. 11 of 1968, the referring question has alluded to the effect of section 18-B of the Act which was Introduced in it by
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the Land Acquisition (North-West Frontier Province Amendment) Act, 1947 by way of local amendment. 3. The brief facts, forming the background of the above cases are as under:-- R. P. A. No. 21 of 1964.-By Notification dated 20-10-1958, issued under section 4 of the Act, 24 kanals and 5 marlas of land of the respondents was acquired by the Collector, Martian for the construction of Tele-Communication Building. Out of this land 7 kanals and 13 marlas bearing Khasra Nos. 1496 and 1493/2 belonged to Salahuddin and others, the legal representatives of Khan Sher Ali Khan, and 3 kanals and 3 marlas, which is half of Khasra No. 1497, belonged to Colonel Amir Khan and others the heirs of late Nawab of Hoti. Pursuant to notices issued under section 9 of the Collector, Salah-ud-Din appeared before him and claimed compensation at the rate of Rs. 1,000 per marls, whereas the other owners remained absent. The award in the case was delivered by the Collector on 15-4-1959 and the same was delivered by the Deputy Commissioner, Mardan on 16-4- 1959. According to the terms of the award the land was assessed at Ra. 261-1-5 per marla and it was directed that compensation at that rate shall be paid to the respondents together with 15 Years for compulsory acquisition. It is common ground between the parties that after the award was delivered possession of the land was taken by the Collector on 13-1-1960. 4. On 13-11-1959 the respondents filed applications before the Collector objecting to the valuation fixed by him and asked him to make a reference to the Court. However the office while processing these applications observed that these had been filed beyond the prescribed period of limitation and consequently placed both the cases before the Collector for his orders. Before passing an order on these applications the Collector issued notices to the parties, heard them against the Office objection and consequently rejected the applications on 26-12-1960 in these words: "I agree with the note. There has been no material irregularity. The compensation awarded is reasonable and there is no case for reference to the Court." Being aggrieved with this order, the respondents went in appeal before the Commissioner under section 18-B of the Act (as amended by the above local Amendment Act of 1917), who by order dated 2-8-1961 allowed the same and directed the Collector to refer their objections to the Court under section 18 of the Act. In pursuance of this order the Collector accordingly referred the objection petitions of the respondents to the Court of Additional District fudge, Mardan which ware accepted by him, by his order dated 6-7-1964. Being dissatisfied with this order, the Collector, the Islamic Republic of Pakistan through the General Manager, Northern Tele-Communication Region, Lahore and Tele-Communication Department through the Divisional Engineer, Telegraphs, Peshawar came up in appeal to this Court and during the course of arguments assailed the impugned order on the following grounds:- "(1) What was the period of limitation for filing an objection application and whether the petitions ware within time? (2) Whether the Court had jurisdiction to go into the question of limitation; and (3) What was the effect of non-appearance of the petitioners, excepting Salahuddin before the Collector pursuant to notice under section 9?" 5. The order of the learned Judges of the Division Bench shows that lengthy arguments, in which a number of authorities were cited before them, were addressed on these points and since these authorities were in conflict with each other in regard to the first two points, they felt difficulty and consequently referred them for the decision of this Bench. 6. R. F. A. No. 11 of 1968.---By Notification dated 8-8-1960, issued under section 4 of the Act, the Collector, Peshawar acquired certain land of the respondents with a view to facilitating the digging of the gravity flow canal connected with the Warsak Dam Project. After issuing the subsequent notifications, under sections 6 and 9 of the Act, the Collector delivered his award on 29-11-1962 and determined the rate of compensation at Rs. 625 per kanal. Being dissatisfied with the rate of
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compensa--tion, respondent Arbab Ahmad Ali Jan and two others filed objection petitions before the Collector and asked him to refer the question of valuation to the Court under section 18 of the Act. But it appeared that the objection petitions were hit by the bar of limitation, and in order to tide over this difficulty the respondents pleaded that they had come to know of the award on 19-8-1964, for notices under sections 9 and 12 of the Act had not been properly served on them. This stand of the respondents did not impress the Collector who rejected their applications holding that these were barred by limitation. Being dissatisfied with this order the respondents went in appeal before the Commissioner under section 18-B of the Act (as amended by the above local Amendment Act) and the same was allowed by him directing that the Collector should make a reference to the Court as required by section 18 of the Act. The required reference was then made by the Collector to the Court of Additional District Judge, Peshawar before whom manifold objections were taken by the Collector which in consequence gave rise to the following issues:- (1) Is the application within time? (2) Whether the land has been inadequately assessed, if so, what is the proper value? (3) Whether the petitioner was not served with a notice nor procedure as required by sections 9 and 12(2) read with section 45 adopted, if so, to what effect? (4) Was there any crop standing on the land when it was possessed by the respondent and the petitioner has not been compensated for the crop, if so, what is the value of that crop? 7. The order of the Additional District Judge shows that he found issues Nos. 1 arid 3 in favour of the respondents; on issue No. 2 his finding is that the land had been inadequately assessed, whereas he found issue No. 4 redundant, for respondent Arbab Ahmad Ali Jan admitted before him that he had already been compensated for the standing crop. In view of this conclusion, the learned Additional District Judge disposed of the reference before him by order dated 1-11-1967. But since the Collector felt aggrieved of this decision he came up in appeal before this Court which in consequence has given rise to the above reference at the Instance of a learned Single Judge for the decision of this Bench. 8. To begin with, we would like to deal with the question which is common to both the references. In substance, the question is, and this is notwithstanding the phraseology in which it has been worded in the two referring orders, whether a Court would be competent to go behind the reference of a Collector to see if the objection application filed before him was within time as prescribed in the proviso to section 18 of the Act? On this point, the learned counsel for the parties have addressed us at great length, and in support of their respective contentions referred to a large number of cases. 9. In support of the affirmative proposition, the learned counsel for the Collector referred to the following decisions:- (1) Pana Lal and others v. The Collector, Etah AIR 1959 A11. 576. (2) Mahadeo Krishna Parkar v. Mamlatdar of Alibeg AIR 1944 Bom. 200. (3) G. J. Desal v. Abdul Mazid Kadri and others AIR 1951 Bom. 156. (4) Khatisdas Gangaram v. First Land Acquisition Collector, Calcutta AIR 1946 Cal. 508. (5) A. K. Subramania Chettlar v. Collector of Coimbatore AIR 1946 Mad. 184. (6) Kana Navanna Narayanappa Naidu v. Revenue Divisional Officer, Sivakasi AIR 1955 Mad. 23. (7) Mst. Bibi Rahmania and 14 others v. Government through Director, North Regional Research Laboratories and Collector, Peshawar and 13 others PLD 1971 Pesh. 191. (8) Azad Government of the State of Jammu & Kashmir v. Muhammad Shafi PLD 1971 Azad J & K 33. (9) Ghulam Muhyuddin and another v. Secretary of State AIR 1914 Lah. 394. (10) Abdul Sattar and another v. Mst. Hamida Bibi PLD 1950 Lah. 370. (11) The Land Acquisition Collector, Rawalpindi v. Lieut-General Wajid Ali Khan Burki PLD 1960 Lah. 469.
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10. For the contrary proposition the following decisions were cited:- (1) Secretary of State v. Bhagwan Prasad and another AIR 1929 All. 769. (2) Secretary of State v. Bhagwan Prasad AIR 1932 All. 597. (3) Sri Venkateswa raswa mi Varu v. Bejwada by Trustees Rampilla Appalaswami and another v. Sub-Collector and others AIR 1943 Mad. 327. (4) S. Attar Singh R S. Sardar Hira Singh v. Secretary of State AIR 1940 Pesh. 35. (5) Sind Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and 4 others PLD 1960 Kar. 826. (6) Collector of Karachi v. Haji Gola and others PLD 1966 Kar. 413. (7) The Collector of Karachi v. Fida Hussain Muhammad Ali Lotia PLD 1965 Kar. 573. (8) Government of West Pakistan v. Ch. Muhammad Sadiq PLD 1968 Kar. 697. (9) Government of West Pakistan through the Land Acquisition Officer, Hyderabad v. Haji Abdul Latif (represented by his 7 heirs) PLD 1971 Kar. 692. (10) Bashir Ahmad and others v. The Collector, Multan PLD 1962 Lah. 292. 11. The learned counsel for the parties did not claim, and quite rightly, that these lists are exhaustive. But in regard to the view taken by the municipal High Courts, no other case could be cited by them for or against the proposition. Now the perusal of the two sets of judgments would show that except for three cases; one from Lahore, the other from Peshawar and the third from Azad Jammu & Kashmir, the view taken by the High Courts in Pakistan has been consistently uniform that the Court would have no jurisdiction to go behind the reference of the Collector to decide whether the objection application filed before him was within time. But before we come to consider these three cases, we would like to briefly deal with the two sets of judgments for and against the proposition. 12. The careful reading of the judgments, in which the affirmative proposition has found favour, would reveal that in these the learned Judges appear to have proceeded on the assumption as if the filing of objection application before the Collector, within the period prescribed in proviso to section 18 of the Act, was as essential a condition-precedent to the jurisdic--tion of the Court, as the other conditions mentioned in subsection (1) of section 18, namely, that the objector has made a written application to the Collector asking him to refer the matter for determination to the Court, he has not accepted the award; his objections relate to the measurement of land, or the amount of compensation, or the persons to whom it Is payable, or the apportionment of the compensation amongst the persons interested. Having formed this view of section 18 and its proviso, the learned Judges reached the conclusion that the question of limitation being a condition-precedent to the validity of its own jurisdiction, the Court was bound to go behind the reference of the Collector. 13. The other set of judgments, in which the contrary view was accepted, appear to have favoured the assumption that unlike the requirements mentioned in subsection (1) of section 18 of the Act, which were in the nature of conditions-precedent to the valid exercise of jurisdiction by the Court, she question of limitation, within which objection application has to be filed before the Collector, was a matter exclusively within the jurisdiction of the Collector; it did not form part of reference and once he has decided thins question, the Court would have no jurisdiction to go behind his reference to decide this question again. 14. There is no doubt that the learned Judges who endorsed the view affirming the proposition, were all jurists of considerable eminence and, therefore, their views are entitled to the highest respect, but by analysing their judgments carefully it appears to u8 that unlike most of the judgments in which the contrary view has been taken, their Lordships in these cases seem to have taken no notice of the scheme of the Act, the object which it intended to achieve, nor of sections 19. 20 and 21 thereof, in reaching their respective conclusions. Their Lordships also appear to have assumed as if the Court, for the purposes of the Act, was a Court of general jurisdiction and was, therefore, competent to review the order of the Collector even on the point of limitation. But with
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respect, this does not appear to be the correct position. After all the Court, under the Act, is only a tribunal of limited jurisdiction (PLD 1950 Lah. 370) and consequently it would have no such power, unless the same could be spelt out from the Act itself. 15. Now by looking at the various provisions of the Act, it is clear that it is expropriatory in character, for the land of the owner can be acquired without his consent and all that he would A be entitled to is to claim compensation. On this point we would be saying more a little later, but by referring to it at this stage our object is to furnish the background In which the relevant provision of the Act, namely, sections 18, 19, 20 and 21 will have to be properly understood. 16. We have already mentioned the requirements of section 18 and the same may not be reproduced. Section 19, which visualises the making of reference by the Collector to the Court, says that the Collector shall, under his hand, state for the information of the Court in writing:- (a) the situation and extent of the land, with particulars of any trees, buildings or standing crops thereon; (b) the names of the persons who he has reason to think interested in such land; (c) the amount awarded for damages and paid or tendered under sections 5 and 17, or either of them, and the amount of compensation awarded under section 11; and (d) if the objection be to the amount of compensation, the grounds on which the amount of compensation was determined. 17. Section 20 is the next section and it says that when a reference is received by the Court, it shall cause a notice to be served on (a) the applicants, (b) all persons interested in the objections except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and (c) if the objection is in regard to the area of the land or to the amount of compensation, the Collector; specifying the day on which it will proceed to determine the objection and directing that on that day the parties shall appear before him. The scope of enquiry before the Court is delineated in section 21 of the Act and it says that it would be restricted to the interests of the persons affected by the objection. 18. At a glance at these provisions, it would be seen that on receipt of a reference, the Court has to issue notices to all Interested persons specifying therein the date on which It is to proceed to consider the objections. But in view of the restricted nature of enquiry under section 21, the purpose of the hearing would be no more than the disposal of objections referred to ft by the Collector. In other words, when the Court is seized of a reference from the Collector, all that it is empowered to do is to confine its enquiry to the objection referred to it under section 19. And this would obviously exclude the consideration of the question of limitation which is not part of the reference of the Collector. The position, had the Court for the purposes of the Act been a Court of general jurisdiction, might have been different. But since it is not so, it would be futile to claim for it jurisdiction over matters, other than those which have been referred to it under section 19 of the Act. 19. The plain language of these sections reveals that it is the reference of the Collector which invests the Court with the necessary jurisdiction to enquire into the objections mentioned in section 19 of the Act, and not the objection application filed by an interested person before the Collector. The fact that this is how, these sections have been construed in some of the second set of judgments should be enough to doubt the correctness of the judgments favouring the affirmative proposition, for therein these sections were completely ignored. But if there be still any doubt on this point, then reference may be made, with advantage, to a judgment of the Indian Supreme Court----Kothamau Kanakara--thamma and others v. State of Andhra Pradesh (AIR 1965 SC 304), by which this irksome controversy seems to have been finally laid down at rest. 20. The question before the Supreme Court in that case was a little different in that notwithstanding the application of the interested persons, that the valuation question be referred to the Court, the
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Collector did not make the required reference under section 18 of the Act. In these circumstances what the Court was called upon to consider was whether it was competent to go into that question? The High Court answered the question in the affirmative, but the supreme Court disagreed with its con--clusion, holding that since the Collector's reference was made under section 30 of the Act, namely, for the apportionment of the compensation amount, the Court had no jurisdiction to consider the quantum of compensation, for on that point no reference had been made to it by the Collector within the meaning of section 19 of the Act. In reaching this conclusion, the Supreme Court took the view that under the circumstances the Court suffered from inherent lack of jurisdiction. But while dealing with this question, it had the occasion to consider the various sections of the Act and had this say on the subject:- "The proviso to subsection (2) prescribes the time within which an application under subsection (1) is to be made. Section 19 provides for the making of a reference by the Collector and specifies the matters which are to be comprised in that reference. Thus the matter goes to the Court only upon a reference made by the Collector. It is only after such a reference is made that the Court is empowered to determine the objections made by a claimant to the award. Section 21 restricts the scope of the proceedings before the Court to consideration of the contention of the persons affected by the objection. These provisions thus leave no doubt that the jurisdiction of the Court arises solely on the basis of a reference made to it. No doubt, the Land Acquisition Officer has made a reference under section 30 of the Land Acquisition Act, but that reference was only in regard to the apportionment of the compensation amongst the various claimants. Such a reference would certainly not invest . . . The Court with the jurisdiction to consider a matter not directly connected with it." 21. These are no doubt weighty pronouncements. But the thing which is worth noting is that in that case the Supreme Court took due notice of the fact that by filing the required objection applications within time, as prescribed in proviso to section 19 of the Act, the interested persons had done all which was required of them, and yet the finding reached by the Court was that since the Collector had made no reference on these objections, the Court would be incompetent to consider them. From this the obvious principle of law, which is deducible, is that the Court, being a tribunal of limited jurisdiction, acquires its jurisdiction not on the basis of the objection application filed before the Collector, but upon a reference made by him to the Court under section 19 of the Act. It would, therefore, follow that the scope of enquiry into the reference, restricted as it is by section 21, would be confined to the consideration of those objections which properly fall within the purview of section 19 of the Act, and this would exclude the consideration of any other question. 22. Now the set of judgments, in which the same view has been taken, appear to have laid down the correct law, for therein not only the same line of reasoning was adopted, but due notice was taken of the above sections of the Act. In fact this view has found favour in the latest judgment of a Division Bench of Sind & Baluchistan High Court in the case of Government of West Pakistan v. Haji Abdul Latif (PLD 1971 Kar. 692) in which AIR 1940 Pesh. 35 was cited with approval. Qadeeruddin, C. J., as his Lordship then was, had the occasion to consider a number of judgments for and against the proposition, and after analysing the various sections of the Act reached the conclusion that unless the question of limitation, within which an interested person is required to make an application to the Collector, can be decided upon the defects patent on the face of record, the Court would be incom--petent to consider that question after a reference had been made to it by the Collector. We respectfully agree with this view, supported as it is by a number of judgments, including the judg--ment of the Indian Supreme Court, and hold that the contrary view propounded in the other set of judgments is not acceptable. 23. The learned counsel for the Collector however tried to distinguish these cases by relying upon the Full Bench judgment of Lahore High Court in the case of Abdul Sattar and another v. Mst.
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Hamida Bibi, but we are not impressed. In that case the question of limitation was not involved; in fact it was assumed by the Court that the objection application had been filed before the Collector within time. However since the matter had been referred to the Court substantially under section 32 of the Act, it was held to be incompetent, for the amount of compensation had already been paid by the Collector to Mst. Hamida Bibi, and without it being deposited in Court, as provided by subsection (2) of section 31 of the Act, the Court was held to have no jurisdic--tion in the matter. It was in these circumstances that the Full Bench observed that the Court would be competent to go behind the reference of the Collector, and we respectfully agree with that view, for unlike the proviso to section 18, which is in the nature of procedural law, the requirement of subsection (2) of section 31 was obviously mandatory and in the absence of any amount deposited in Court, it would be helpless to grant relief to the interested party and consequently its proceedings would be wholly futile. Not only this but by reading the judg--ment as a whole it seems to have not disapproved the view (as held in a D. B. Judgment of the former Karachi Bench of the West Pakistan High Court in the case of Sind Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and 4 others) that once the Collector has decided the question of limitation then the Court, after reference has been made to it, would be incompetent to go behind the reference to decide that question again. 24. We have mentioned elsewhere that except for three judgments of Lahore, Peshawar and Azad Jummu & Kashmir the…
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