1993 PLP 414 (MLD)

(3) Notwithstanding anything to the contrary contained in section 21, the Provincial Government may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award; provided that the Court shall not entertain the reference unless in its opinion there is prima facie case for inquiry into and determination of the objection against the award." ,

6. The learned counsel has submitted that mere knowledge of the petitioners to the effect that award has been passed would not be treated as the period to start the limitation of 6 months provided in section 18(2) (b) but it would be the date of service of notice which will be the relevant date and that in this case notice for not having been served, the petitioners would be entitled to file such application within six months from the date of their knowledge. The learned counsel has placed reliance on the cases of: ‑‑ (1) Mst. Maryam Bibi v Lahore Improvement Trust (PLD 1973 Note 124 at p.191. (2) Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore (PLD 1970 Lahore 321). (3) Mst. Sardar Begum v. Lahore Improvement Trust (PLD 1972 Lahore (4) Chairman, WAPDA and another v. Faqir Muhammad and another (1986 CLC 192).,

7. We have gone through above referred to judgments cited by 'the learned counsel. In the first case, a Single Bench judgment of Lahore High Court, the point determined was that in case the provisions of section 12(2) read with section 45(3) of the Land Acquisition Act were not complied with, it will not be treated as a proper notice served on the party and also that the bar of limitation in such cases would require strict interpretation when applied against admitted existing right. In the second case the Division Bench of the Lahore High Court had observed that mere affixation of notice on Notice Board of Union Council could not be treated to the sufficient service in absence of any material on record to indicate if any effort was made by the Process Server to serve the notice on the person concerned. In this case their Lordships have also discussed the obligatory and directory provisions. In this case their Lordships had held that the maximum period of 6 months from the date of award would be available to the applicants for making reference under section 18 where the notice was served after four and half months of making award. In the third case of Mst. Sardar Begum it was observed by a Division Bench of Lahore High Court that adequate remedy for a petitioner in case where his remedy under section 18 of Land Acquisition Act had become time barred would be to seek remedy through a writ petition as provisions of section 5 of the Limitation Act were not applicable. In the fourth case of Chairman, WAPDA Lahore a Division Bench of Punjab High Court had set aside the order made by the Collector and remanded the case to him with the direction to deem the objection petition as pending for the reasons that the authority had exercised the appellate powers which did not vest by law.

8. A careful scrutiny of the facts of the present case would show that the same are somewhat different from those as involved in cases referred to above. In the present case it is an admitted position that the petitioner had first filed civil suit and after his application for grant of injunction was rejected he also filed a Civil Misc. Appeal but subsequently on 11th and 18th of November 1984 he had withdrawn both. Thereafter he approached this Court in C.P. No.680/83 wherein an order of maintaining status quo was passed on 9‑1‑1984 but ultimately the Constitutional petition was dismissed by an order passed on 31‑1‑1984. It would be appropriate to reproduce the said order which has been placed on record and which reads as under: ‑‑ "31‑1‑1984. Mr. S. Rashid Ahmed, Advocate Mr. Saeed A. Shaikh, Advocate‑General alongwith Mr. Arshad Noor Khan, Advocate. By notifications dated 10‑4‑1983 and 12‑5‑1983 petitioners' lands have been acquired under the Land Acquisition Act. The petitioners have challenged the acquisition proceedings by this petition filed under Article 9 of P.C.O., 1981. Mr. Rashid concedes that alternate remedy by way of suit is available to the ‑petitioners. Mr. Arshad Noor Khan, Advocate has pointed out that in fact the petitioners have filed a suit being Suit No.15/83 in the Court of learned Senior Civil Judge, Nawabshah, which is still pending. It is, therefore, clear that the petitioners have already availed of the alternate remedy. We regret to say that the petitioners have suppressed this fact in this petition. For all these reasons we dismiss this petition in limine. Sd. NAIMUDDIN, JUDGE Sd. KA. GHANI, JUDGE."

9. This order shows that the petitioners did not approach the Court with the clean hands and had suppressed material facts. It is pointed out by Mr. Abdul Hameed Khan the learned counsel for the respondents Nos.4 and 5 that during the pendency of this petition. (C.P. No.680/83) comments were called which were filed by the said respondents in the Court and along with the comments a copy of award was also filed. Mr. Abdul Hameed Khan has further submitted that the said copy of comments and award was also deliver the present petitioners and from this fact it can be safely assumed that before 31‑1‑1984 the date on which C.P. No.680/83 was dismissed, the present petitioners had acquired the knowledge of the award. Mr. Abdul Hameed Khan has further submitted that even in the present petition the petitioners have suppressed this fact and therefore they have not come to the Court with clean hands. reference to para. 12 of the memorandum of the petition shows that the contention of the petitioners is "that the petitioners had the knowledge of the award for the first time in the month of May 1985, (underlining is by us) petitioners, therefore made an application to the respondent No.3 for making reference to the Court". This assertion of the petitioners goes to belie the fact that they were served with the copy of 4ward during pendency of the petition before 31‑1‑1984 which fact is not denied by the learned counsel for the petitioners. He has further contended that this is a clear case of deliberate and wilful delay on the part of the petitioners and they would not be entitled to any equitable relief from this Court. He has referred to the case of Ghulam Mohammad v. Government of West Pakistan (PLD 1967 SC 191). In this case their Lordships in the Supreme Court have distinguished between the references made under the two provisions of the Land Acquisition Act i.e. section 18 and section

30. In this case it has been held by their Lordships as under: ‑‑ "Under section 18 the reference is of a dispute with regard to the area or the quantum of the compensation or as to the apportionment of the same amongst the persons interested This reference is strictly limited to the above matters, whereas under section 30 the reference may be made if a dispute arises as to the method of apportionment of the compensation or as to the persons to whom the same or any part thereof is payable. The subject‑matter of this latter reference is limited to dispute purely of title in which the Government is not directly interested. The award of the Collector, as pointed out by Lord Buckmaster in the case of T.B. Ramchandra Rao v. A.N. Ramchandra Rao' and others is an award of compensation to be allowed and the apportionment among the persons interested in the land of whose claims the Collector has information meaning thereby people whose interests are not in dispute, but where there is a dispute as to who are the persons interested or as to the extent of their interests or as to the nature of their respective interests that would not be for the Collector to decide under section 18, but should be left to the Courts to adjudicate upon under section

30. The fact that admittedly no notice of the filing of the award was served upon the appellant under section 12(2) of the Act is; in no way, relevant for the purpose of deciding this controversy as to the time within which the objection should be filed for, under section 18, proviso (b), it would appear that if notice is served the period of limitation. is only six weeks from the date of the service of the notice but in other cases six months from4the date of Collector's award. This proviso fixes a special period of limitation and since the Land Acquisition Act does not make the provisions of the Limitation Act applicable it‑would appear that in the same case of an objection under section 18 the maximum period allowed is six months from the date of the making of the award in accordance with section

11. I am also inclined to agree with the view taken by the Calcutta High Court in the case of Solomn that the award must, in order to be a complete award, contain a formal declaration with regard to all the matters referred to in section 11 and be signed by the Collector. But even accepting this view I find myself unable to agree that in the present case the award made by the Collector in June 1958, was not in every way final in accordance with the provisions of section

11. It specified the area to be acquired, it specified the rate of the compensation payable arid also made the apportionment, but since it did not accept the title of the appellant of whose interest it vas duly made aware by the entry in the revenue record it referred the question of the appellant's title to the landlord and to receive the compensation to the Court under section

30. The award was, therefore, complete in every way and it could not be challenged after the expiry of six months from that date. The argument that the appellant would have had no locus standi to object to the award until his title was determined is clearly untenable, for, under the definition given in section 3 he was entitled to be treated as a person interested even if he merely claimed an interest in the compensation. In any event, from the date the mutation in his favour was sanctioned in 1959 his right to be a person interested could not be possibly disputed. The Collector and the High Court were, therefore, in my opinion, right in holding that the appellant's objection filed in December 1962, was well out of time. I also find it difficult to acct that the appellant was not aware of the award that had been made. At any rate, from the date when the Court of Civil Judge gave him notice to appear in 1961 he was certainly aware of the award. He did not file this objection even within six months of this date. (Under lining is done by us) For the reasons given above I am of the view that this appeal must fail and would accordingly, dismiss the same but would make no order as to costs. In the other case of Gul Zaman and another v Collector, Land Acquisition and others (PLD 1984 Pesh. 35), similar view has been taken by the learned Division Bench of Peshawar High Court. In this case it has also been observed that it is within the exclusive power of the Collector to give decision on question of limitation within his jurisdiction. In the above case of Peshawar High Court reliance has been placed on the case of Collector, Karachi v. Fida Hussain Muhammad Ali.

10. From. the above discussion it can safely be assumed that the petitioners had the knowledge of this award at least on the date when they were served with copy of the award alongwith the comments through their advocate in Q. P. No.680 of 1983 at least before 31‑1‑1984 and yet they slept over the same and preferred their application for reference under section 18 for the first time on 26‑5‑1985. This not only shows the same being beyond a period of six months as provided in clause (b) of subsection (2) of section 18 but also goes to belie the contentions of the petitioner as made in para. 12 of the petition. A plane reading of the above provisions of sub‑clause (b) of subsection (2) of section 18 would clearly show that the words "or within six months from the date of the Collector's Award" referred to those cases when no notice under section 12(2) of the Act has been served on the party but the party acquires knowledge of the award by any other means. In this view of the matter and relying on the above said judgment of the Honourable Supreme Court we are not inclined to allow this petition so far as the alternate prayer in the petition is concerned. Accordingly the petition stands dismissed.

11. Now we take up the two Misc. Applications. The first application, C.M.A..277/91 is moved by the present respondent No.5 with' the prayer that the amount of mark‑up, already withdrawn by the petitioners from the Court be ordered to be refunded. This application has not been pressed by the learned counsel and accordingly dismissed as not pressed.

12. The second application C.MA. 429/89 has been moved by the present petitioners with the prayer that the respondent No.5 be directed to pay additional amount of 15% per annum under the newly‑added section 28‑A of the Land Acquisition Act. The facts of the present case show that the award was made on 6‑8‑1983 while section 28‑A was added subsequent to the making of the award vide Land Acquisition (Sindh Amendment) Ordinance XXIII of 1984. The petitioners have not made any prayer for amendment in the present petition nor they have sought additional relief in the petition. The amount under section 28‑A, if due against the present respondents, the same being a case for recovery of money it will be open for the petitioners to approach the concerned authorities for recovery of such amount in accordance with law. With this observation we dismiss this application also.

12. Above are the reasons for the short order announced by us in Court on 14‑5‑1992. H.B.T./M‑1648/K Petition dismissed.