P L D 1984 Peshawar 219 (PLP)

Qazi Abdur Rashid for Appellant. . Muhammad Waris Khan for Respondents Nos. 1 to 3, 5 and

6. Respondent No. 4 in person. Date of hearing : 9th May, 1984. Shamilat land of village Topi, Tehsil Swabi District Mardan, alongwith other land of the same village, was acquired by Government under the Land Acquisition Act (hereinafter referred to as the Act) for the construction of Tarbela Dam. After following procedure laid down in the Act, the Collector proceeded to announce his award with respect to the compensation payable to the owners whose land was compulsorily acquired. A dispute about the apportionment of the compensation amount with respect to certain share of Shamilat land between Fazal Rehman and his two brothers Shams ur‑Rehman and Aziz‑ur‑Rehman on the one side. and Sahibzada Abdul Hamid on the other side. The first named three persons then filed objection petition wherein they claimed that the Shamilat land which was shown to be the property of Sahibzada Abdul Hamid was in fact their property and they were, therefore, entitled to receive compensation thereof. The objection petition was referred by the Collector to the Court for determination of the dispute, where Mushtaq Ahmed and Arif Ahmed sons of Sahibzada Abdul Hamid were also added as respondents. The Court, after allowing the parties to produce such evidence as they wished to produce, finally determined that the disputed share of Shamilat land was the ownership of Fazal Rehman and his brothers and that Sahibzada Abdul Hamid and his two sons had no concern with it. The objectors were accordingly held entitled to the compensation amount assessed for that land. It is significant to note that though in the written reply filed by the respondents an objection was taken that one Saifur Rehman was in fact the owner of the disputed share of Shamilat land, the Court did not pay any attention to it, with the result that Saifur Rehman remained out of contest in those proceedings. An appeal against the order of the Court was also filed by the respondents in the High Court which was later on, however, withdrawn.

2. Saifur Rehman, petitioner herein, then filed a Civil Suit in the Court of Civil Judge, Mardan for a declaration to the effect that he was owner by purchase of the disputed share of Shamilat land and that he was entitled to receive compensation amount assessed by the Collector therefor and that the award of the Court announced in favour of Fazal Rehman and his two brothers after proceeding under the Act was void and inoperative against his rights. An injunction was also claimed against the Collector not to disburse the compensation amount to Fazal Rehman and his two brothers, who were made defendants 1 to 3 in the case. The suit was contested by these defen dants and a preliminary objection with respect to jurisdiction of the civil Court was taken, which was, however, answered by the learned Civil Judge on 17‑3‑1979 in favour of the plaintiff. I he aggrieved defendants went in appeal to the District Judge, Mardan, who, vide his Judgment and Decree dated 28‑7‑1979, accepted the appeal, holding that the civil Court had no jurisdiction to entertain the suit, and directed the lower Court to return the plaint to the plaintiff under Order VII, rule 10, C. P. C. for presentation before the proper forum. It ‑is against that order of the lean‑d First Appellate Court that the plaintiff has come to this Court in appeal, which is to be treated as first appeal against the order whereby the plaint was returned to the plaintiff.

3. Qazi Abdur Rashid, Advocate, appeared on behalf of the appellant and Mr. Muhammad Waris Khan, Advocate, appeared on behalf of the respondents Nos. 1 to

3. Their arguments were beard and the record of the case perused with their assistance.

4. The learned counsel for the plaintiff‑appellant argued that his client was not aggrieved by the award of the Collector because according to that award he was to get the compensation amount pertaining to the disputed share of Shamilat land through the select committee appointed for the purpose. While making this submission he invited my attention to paragraph 11 of the award available on the record, wherein mode of distribution of the compensa tion amount relating to Shamilat land was laid down. He contended that since the plaintiff appellant was not affected by the said award or by the mode of distribution of the compensation amount relating to Shamilat land specified therein, he bad no cause to file objection, against the award, under section 18 or section 30 of the Act. He further contended that the plaintiff‑appellant was affected by the decision made by the Court in objection Petition No. 40/4, whereby respondents Nos. I to 3 herein were declared to be entitled to receive compensation amount regarding the disputed share of Shamilat land. His contention was that the said decision of the Court could also be challenged in appeal before the High Court, but the appeal, in the circumstances of the case, would have secured no relief to the plaintiff‑appellant because no evidence was brought on the record relating to his title in the disputed share of Shamilat land. For that reason, appeal to the High Court in this case was not an appropriate course to follow, he urged. The only course open to the plaintiff appellant, according to his learned counsel, was to bring a civil suit to challenge the award made by the Court in the Objection Petition which affected his rights. He also contended that the plaintiff‑appellant was neither served with notice under section 9 of the Act nor under section 20 thereof and that being the position, a civil suit by him for his rights was maintainable.

5. The learned counsel for the respondents Nos. 1 to 3, however, con tended that since under the Act a special jurisdiction was created and a special remedy was provided, the plaintiff‑appellant was legally bound to approach, for redress, the special forum created under the Act, and a civil suit by him for the enforcement of his alleged rights was not competent. He contended that the learned lower appellate Court was legally right in directing the return of the plaint to the plaintiff‑appellant for presentation before the competent forum. In this regard the learned counsel mainly relied on unreported judgments of this Court in C. R. No. 66/69 and R. S. A. No. 17 of 1975.

6. The perusal of the record would show that the plaintiff appellant was not made party to the objection Petition No. 40/4 of 1971, decided by the Additional District Judge, Haripur on the 15th of July, 1975. In consequence of this decision the respondents Nos. 1 to 3 were declared to be entitled to receive the entire compensation amount relating to the disputed share of Shamilat land. The plaintiff‑appellant, allegedly claiming ownership of this share, was affected by this decision. The record would further show that the plaintiff‑appellant was not served with any notice under section 9 of the Act, nor under section 20 thereof by the Court before starting pro ceedings. The learned counsel for respondents Nos. 1 to 3, upon question during the course of arguments as to whether or not the plaintiff‑appellant was served with any notice under the said two sections of law, replied that since the plaintiff‑appellant had no interest in the disputed share of Shamilat land, he was not served with any notice under ether section of the Act. The accepted position,, therefore, was that the plaintiff‑appellant was not served with notice under section 9 of the Act when the Collector had proceeded under sections 10 and 11 thereof. He was also not made aware by the Court of the proceedings under section 20 of the Act. In such circumstances, the authorities relied upon by the learned counsel for respondents Nos. I to 3 were of no help to the respondents' case. In those cases it was established on the record that notice under section 9 of the Act had been served on the plaintiffs who had instituted civil suits without resorting to the remedy provided in section 18 or section 30 of the Act. In my view where a persona is not given any notice under section 9 of the Act, then he has a remedy to establish his right by a civil suit. The third proviso to subsection (2) of section 31 of the Act clearly so provides, as held in Bego's case (A I R 1926 Lah. 321) and Said Umar Shah's case (P L D 1978 Pesh. 3), with whom I am in respectful agreement.

7. It is undisputable that where a special forum is created by a statute and a special remedy is provided for redressing the grievances arising there under in accordance with procedure prescribed therein, then that forum shall have exclusive jurisdiction to adjudicate upon such matters. The disputes adjudicatable by such a forum shall, therefore, not be brought before a civil Court, unless the statute creating such a forum provides otherwise. No doubt, the Act provides that any person aggrieved by the award of the Collector may raise objections under section 18 or section 30 of the Act with respect to the matters specified therein, but if a person is not aggrieved by such award, the question of his raising objections under section 18 or section 30 of the Act would not arise. In this case, the plaintiff‑appellant, as urged by his learned counsel, was not aggrieved by the award of the Collector. He was, therefore, not required by law to raise any objection to that award. In the objection petition filed by respondents Nos. 1 to 3 the plaintiff-appellant was not impleaded as party and he, therefore, did not have the opportunity of leading any evidence before the Court with respect to his alleged rights. In such circumstances, to close the door of the civil Court to him would amount to refusing him the right of being heard in support of the claim which may prove to be true.

8. In the result, while accepting this appeal, I hereby set aside the impugned order of the learned District Judge, Mardan, passed in Civil Appeal No. 4/14 of 1979, and restore that of the learned Civil Judge passed on 17‑3‑1979. The case stands remanded to the learned Civil Judge, who shall now proceed with the case in accordance with law and try to dispose it‑ of as expeditiously as possible. The plaint of the suit which has been filed in this Court shall expeditiously be returned by the office to the learned Civil Judge, alongwith other record, for placing it on the file of the suit. The parties are directed to appear before the learned Civil Judge on 16‑6‑1984. The costs shall follow the event. M. Z. M. Appeal accepted.