1998 PLP 2197 (SCMR)

WAJIHUDDIN AHMED, J.

Land measuring 1242 Kanals and 9 Marlas, situated in village Mirpur, Tehsil Abbottabad, was acquired for extension and construction of P.M.A., Kakul. On 3-10-1982, the award followed. An application under section 18 of the Land Acquisition Act was submitted by seven of the landowners for a reference to the Court, where the applicants also acted for and representatives of as many as a total of 1070 such owners, the affectees of the award. Compensation was enhanced per order of the Court dated 9-10-1985. In the meantime, an application, under Order 1, rule 8, C.P.C., to sue in a representative capacity, was also submitted in the Court and the matter was treated in the following words:-- "The petitioners have filed the instant petition as representatives as it is mentioned in Order I, Rule 8 of C.P.C. According to Land Acquisition Act the section 53 is very much clear on this point that the Civil Procedure Code is applicable in the proceedings in petitions preferred to this Court by the Collector which reads as:- '

53. Code of Civil Procedure to apply to proceedings before Court.--Save in so far as they may be inconsistent with anything contained in this Act the provision of the Code of Civil Procedure shall apply to all proceedings before the Court under this Act.' Now from the contents of section 53 I come to the contents of Order 1 Rule 8 of C.P.C. which allows a person or a group of persons to sue or defend on behalf of all the persons in the same interest. In the instant petition an application under Order 1, rule 8 has also been filed by the petitioners alongwith the objection petition. I produce the contents of Order I, rule 8 which reads as under: '

1. Where there are .numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend in such suit, on behalf or for the benefit of all persons so interested. But the Court shall in such case give at the plaintiffs expense notice of institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court at each case may direct.' In the present case the application under Order 1, Rule 8 was admitted by the Court and the parties were allowed and permitted to proceed with the case." An appeal taken against the enhanced compensation was accepted by the High Court on 20-1-1987. The affectee landowners thereupon approached this Court and their appeal was allowed, restoring the order of the referee Court. When, however, compensation was not paid to all the persons interested in terms allowed by the Court, the unpaid owners applied for execution. The executing Court, vide order dated 4-7-1993, dismissed the execution on the ground that Order I, rule 8, C.P.C. did not apply to the proceedings and the enhanced compensation was payable only to those of the landowners who had sought reference to the Court. An appeal taken by the affectees to the High Court failed on 21-3-1994. In the resultant petitions for leave, one of us namely, Saiduzzaman Siddique, J., who authored the order of this Court, allowed leave to consider the following questions:- (1) Whether by mentioning the names of all the 1070 affectess of the acquired land in a separate list filed alongwith the objection petition filed under, section 18 of the Land Acquisition Act by only some of the claimants, the reference to the Court by the Collector shall be deemed to have been made on behalf of all the affectees of the land so as to entitle all of them to the benefit arising from the order of the Court passed on the reference? (2) Whether the procedure prescribed under Order I, Rule 8, C.P.C. was applicable to proceedings arising under Land Acquisition Act? If so, whether the petitioners who were not specifically made party in the proceedings could take advantage of the orders passed from time to time by the Courts in respect of acquired land? As already adverted to at the outset, the application to the Collector under section 18 of the Land Acquisition Act was filed in the names of seven of the landowners but the rest, included in the appended list supplied of 1070 persons, were represented by such seven applicants in the undernoted words:- Besides as seen, an application under Order 1, rule 8, C.P.C. was preferred upon the reference before the referee Court and that Court in Objection Petition No.46/4 of 1983, decided on 9-10-1985, treated with the subject, in the manner shown hereinbefore. Now, the executing Court and then the High Court in the impugned order dated 21-3-1994 have rejected the claims, largely drawing upon the phraseology of sections 18 and 53, of which the latter has been recast by the referee Court whereas the former with the relevant N.-W.F.P. amendment runs thus:- "

18. Reference to Court.

(1) Any person interested who has not accepted the award may be written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the ground on which objection to the award is taken: , Provided that every such application shall be made,-- (a) If the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, subsection (2) or within six months from the date of the Collector's award, whichever period shall first expire." (3) deleted in the N.-W.F.P. (4) 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 a prima facie case for inquiry and determination of the objection against the award." (for N.-W.F.P. only). An application requiring reference of a disputed award in terms of section 18 (ibid). has to be made in writing "to the Collector". Yet, pursuant to section 53 (supra), unless otherwise provided in the Act, "the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under this Act". Thus, while their can be no dispute as to applicability of the Code in the proceedings "before the Court", the only question is whether the procedure in the Code would be invokable also in relation to the applications under section 18 made "to the Collector". It admits of no two opinions that an application under section 18 "to the Collector" is to be referred to the Court, without saying more, for being dealt with by the Court, In reality and in effect, therefore, such application "to the Collector" is an application designed to be placed before the Court. The crucial words in section 53 of the Land Acquisition Act is "before" and that, inter alia, signifies "in front of someone" or "for the attention of some one". It matters little as to whom the application under section 18 of the Act is to be addressed. That is to be referred to and placed "before the Court" and for such reason alone the provisions of the Code of Civil Procedure are, mutatis mutandis, to apply to the application. On this plane of reasoning, not only the application to the Collector by necessary implication was made for and on behalf of all the affectees, but as seen above, the provisions of Order I, rule 8, C.P.C. can were expressly invoked and the matter finally culminated in an order by this Court. The matter is capable of being approached also in another way. With specific reference to acquisition proceedings, it has been laid down in Province of Punjab v. Abdul Majeed, 1997 SCMR 1692, that the benefit of a revision in compensation at the appellate stage, on a parity of reasoning emerging from Order XLI, rule 33, C.P.C., can be extended to non-appealing landowners as well. On this score alone a common enhancement of compensation by the Court, in contemplation of the Land Acquisition Act, should have enured to the benefit of all the affectees. In this background, the executing Court, much as the High Court, was in error firstly; by not allowing the benefits, on due representation, to all the affectees of the award and secondly, by going behind the main orders in the acquisition, which had attained finality. Indeed, this is a case involving much ado, signifying nothing, because it was conceded by Moulvi Anwarul Haq, the learned Deputy Attorney-General, before us, that, as a fact, 817 of the persons interested have already been paid and the controversy is now confined to only 206 of such persons. Both the questions in the leave -granting order stand answered accordingly. In the result, the orders of the executing Court and of the High Court require to be set aside and these appeals resultantly allowed. The appeals are allowed, but there shall be no order as to costs. M.B.A./M-196/S Appeals allowed