P L D 1977 Karachi 922 (PLP)

NAIMUDDIN, J.‑The facts giving rise to this petition under Article 98 of the late Interim Constitution briefly stated, are: The lands in all measuring 279 acres 21 guntas and situated in villages Jung, Daharki and Wahi Gul Khan, Taluka Ubauro, District Sukkur, were acquired under the provisions of the Land Acquisition Act, 1894 (hereinafter called 'the Act') for Esso Pakistan Fertilizer Company Ltd., for setting up a Fertilizer Project at Daharki, District Sukkur, by the Notification, dated 24‑2‑19M, issued under section 4 of the Act and published in the Gazette of West Pakistan, Extraordinary, dated 11‑3‑1966, and modified by the Corrigendum, Addendum and Deletsm No. 89‑9‑LA/59, dated 8‑6‑1966, issued by they Commissioner, Khairpur Division, and published in tie Gazette of West Pakistan. Extraordinary, dated 9‑6‑1966, and the subsequent notification dated 25‑6‑1966 published in the Gazette of West Pakistan, Extraordinary, 27‑6‑1966. The lands acquired included the lands owned by respondent

1. After completion of all the formalities under section 6, 8 and 9 of the Act, the Assistant Commis sioner, Robri Sub‑Division at Ghotki, who was appointed as the Land Acquisition Collector, under section 3 (c) of the Act, gave his award dated 14‑12‑1967.

2. On 22‑1‑1968, within the statutory period, respondent 1 filed five applications under section 18 of the Act in the Office of the Deputy Com missioner/Collector, Sukkur, addressed to "the Land Acquisition Collector, Sukkur" requiring him to refer the case to the Court of District Judge. Sukkur, For determination of the amount of compensation as he had objections to the amount awarded to him as compensation by the award dated 14‑12‑3967.

3. From the record produced before us, on our summoning, it appears that these applications were put up for orders of the Deputy Commissioner/ Collector, along with the Office Note dated 23‑1‑1968. It further appears that these applications were forwarded to the Assistant Commissioner, Rohri Sub‑Division at Ghotki, for his remarks under Memo H. B. (C)/1482 dated 3‑2‑1968 who along with his comments contained in his letter dated 17‑4‑1968 returned the same to the Deputy Commissioner/Collector. Thereafter, certain correspondence ensued between the Office of the Deputy Commissioner/ Collector and the Office of the Assistant Commissioner, Rohri Sub‑Division at Ghotki, which need not be adverted to. However, respondent 1 was informed by the Assistant Commissioner and Land Acquisition Collector by his Letter No. 8550, dated 18‑12‑1968, received by respondent i by post on 26‑12‑1968, that his application had been filed because the powers of the Land Acquisition Collector bad been entrusted to the Assistant Commis sioner and respondent 1 therefore should submit fresh applications/objections. Accordingly, respondent I filed fresh applications, dated 3‑1‑1969, entitled as "the application under section 18 of the Land Acquisition Act, 1894" with the Assistant Commissioner. Rohri Sub‑Division at Ghotki. On these applications, therefore, the Assistant Commissioner and Land Acquisition Collector, Ghotki, made reference to the Court of the District Judge at Sukkur on 23‑4‑1969, through the Deputy Commissioner, Sukkur.

4. In the proceedings before the District Judge, Sukkur, the petitioners after being joined on their own application as p arty to the proceedings matte another application dated 16‑7‑1970, under Order VII, rule 11, C. P. C. for rejection of the application inter alia on the ground that the same was barred by limitation. However, Mr. Haider Shah M. Syed, Additional District Judge, Sukkur to whom, it soars, the case was transferred, heard the application and by his order dated 3‑5‑1971, relying on the Collector of Karachi v. Haji Gola and others (P L.D 1965 Kar. 413), rejected the application holding that once the reference mss made it was not open to adjudicate upon the question whether the application made to the Collector was barred by time or not.

5. Therefore, the petitioners have come up to this Court in this constitution petition and have challenged the order of reference dated 23-4‑1969, claiming the same to he illegal, without jurisdiction ant of no legal effect.

6. We have heard Mr. Khalid M. Ishaque, Advocate for the petitioners, and Mr. Imam Ali Kazi, Advocate for respondent 1.

7. Mr. Ishaque has contended that the order of .reference by respon dent 2 to the Court of District Judge was without jurisdiction on two grounds, namely (1) respondent 1 had made no prayer in the application under section 18 of the Act for making reference to the Court of District Judge; (2) the application. dated 3‑1‑1969, made by respondent 1 was barred by tune.

8. So far the first ground is concerned, it may be pointed out the same is not based on proper appreciation of the contents of the applica tion, for the application is entitled under section 18 of the Act, which section provides that any person interested, echo has not accepted the award may by written application to the Collector require him to refer the matter for determination of the Court. It also states that after publication of the award respondent 1 had submitted the application direct to the Deputy Commis sioner. Sukkur, within statutory period. It also contains grounds of objections to the award and the prayer for taking early action in the matter. Therefore, by necessary implication the second application contains a request for referring the matter to the Court for its determination. Further, there is n o doubt that the first application which has bean referred to in the second application expressly contains a prayer for making a reference to tae Court and if the two applications are read together they no doubt, laid to the same conclusion. Therefore, this around has not substance and woes accordingly reject it.

9. However, the second ground that the second application on which reference was made to the Court of the District Judge was barred by time as the same was filed after about 11 months of the expiry of time has force. Under section 18 of the Act, a claimant who has not accepted the award is required to make application within six weeks from the date of the Collector's award if he was present or represented before the Collector at the time when he made his award, and in other cues, 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 s period should first expire. Since the award was made on 15‑2‑196 P, and the second application was filed on 3‑1‑1969, the same was no doubt, beyond time, respondent 2 was aware of this fact. However, he left the question for decision of the Court on the assumption that the Court could go into ft. But the assumption was wrong in view of two decisions of this Court in send Industrial Trading estates v. Ist Assistant Judge, Hyderabad, West Pakistan and 4 others (P L D 1960 Kar. 826) and Collector of Karachi v. Haji Gola and others, a decision of Lahore Bench of erstwhile High Court of West Pakistan, in Bashir Ahmad and others v. The Collector, Multan (P L D 1962 Lah. 292) and a Full Bench decision of the Peshawar High Court in the Collector, Martian arid 2 others v. Taj Bibi and .14 others (P L D 1972 Pesh. 197).

10. However, the controversy does not end there. Respondent 1 earlier on 22-1‑1968, had filed five applications in the office of the Deputy Commis sioner/Collcotor, Sukkur, which were well within time. But since these appli cations were presented in the office of the Collector‑no reference was made thereon, as, acc‑=girding to respondent 2, they were not filed at the proper place. The learned counsel for respondent 1 however, submitted that under section 18 of the Act the claimant was required to make an application to 'the collector' which expression according to the learned counsel, means the Collector of the District and since respondent 1 had filed the applications in the office of the Collector within time they were properly presented. He, therefore, argued that either tire reference ought to be deemed to have been made on the earlier applications or, in any case, the :said applications ought to be deemed still pending. 11. 1n reply the learned counsel for the petitioners submitted that the reference could not be deemed to have been made on the earlier applica tions as the Assistant Commissioner/Collector in the reference stated that, "since notice under. section 12(2) admitted by the applicant was served upon him, an application for reference should have been filed within prescribe, time at the proper place. The claimant did not file. As a result, he does not appear to have the remedy of reference under section 18 available to him. However, the matter is left for the Court to determine". which leads to the conclusion teat the reference was made on the subsequent applications. we agree with him.

12. As regards the submission relating to pendency of the previous applications, the learned counsel for the petitioners submitted that since respondent 2 had chosen to invite fresh applications notwithstanding the fact that the previous applications were referred to him twice by the collector, first under the cover of Memo No. 1482 dated 3‑2‑1‑fob, and the second time when he informed respondent No. 1 to file fresh applications, the applications ought to be deemed to have been disposed of as the same were not presented to the proper authority and at proper place as held by respondent 2. 13. in order to appreciate the respective submissions of the learned counsel for the patties it is necessary to refer to the definition of 'the Collector' given in subsection (c) of section 3 of the Act which expression meant, "the Collector of a district and includes a Deputy Commissioner and any officer specially appointed by the Provincial Government to perform the functions of a Collector under the Act". Under section 18 of the Act application has to be made to the Collector which expression according to the Act, means the Collector of the district and which expression also includes the Deputy Commissioner and' any C other officer specially appointed by the Provincial Government to perform functions of a Collector under this Act. Since it cannot be disputed the officer in whose office the first applications were filed was the Deputy Commissioner, Sukkur, and also the Collector of the District appointed under section 8 of the Sind Land Revenue Code, 1879 then in force and sub sequently with effect from 1‑1‑1968, under section 7(2) of the West Pakistan Land Revenue Act. 1967, whereunder the Deputy Commissioner of the District or an officer performing, for the time being, functions as such, became the Collector of the District, and the said officer was therefore, the Collector ,iithin the meaning of the Act, anal therefore, reference could properly made to him. So was the Assistant Commissioner who was specially appointed by the Provincial Government to perform the functions of the Collector. In this view of the matter the application could be made t either of them. But, even if the making of an application is considered t be restricted to the Assistant Commissioner who was the officer specially appointed in the present case to ‑perform the functions of the Collector would suffice to point out that the application was in fact, correctly addressed to him as it was addressed to "In the Court of Land Acquisition Collector, Sukkur", as would appear on the face of the applications. Therefore, the applications were made to proper authority although filed in a wrong office In such a case the office of the Deputy Commissioner should not ho v accepted the applications or should have returned the same to respondent 1 for presentation to the proper officer. However, as stated earlier the office of the Deputy Commissioner had forwarded the same to the Assistant Commissioner who had returned the same with his comments and to whom they were again returned. Therefore, respondent 2 should have dealt with the first applications and ought not have required respondent 1 to file fresh applications. In this view of the matter we think respondent 2 unduly refused to exercise the jurisdiction in relation to the said applications and made a fetish of technicality. We, therefore, consider the application: still pending. Since we have reached the conclusion that respondent 2 in spite of the fact that he was conscious of the question of limitation left it to decided by the Court of the District Judge which question, as stated above, could not have been left for decision of the Court of District Judge, hew failed to exercise the jurisdiction vested in him and accordingly his order is without jurisdiction so also is the order whereby he refused to refer the question of compensation under section 18 of the Act to the Court of the District Judge on the first applications. Now, therefore, the order of reference has to be declared to be without lawful authority and accordingly : we declare the same to be so and following Yousuf ali v. M. Aslam Zia (P L D 1958 S C (Pak.) 104) . on which reliance was rightly placed by the learned counsel for the petitioner, we also declare all subsequent orders based thereon without lawful authority and of no legal effect as no statutory provisions or principle of law recognising as legal the changed position of the parties was brought to our notice and as we are conscious of the fact that the petitioners had questioned the validity of reference on the ground of limitation before the District cadge although in view of the decisions referred by us hereinabove, they were precluded from doing so. But at the same time equities of the case require us to declare the five applications dated 22‑1‑1968, still pending, which` we hereby do and we would therefore, direct respondent 2 to consider the question of reference under section 18 of the Act, afresh on the said applications after notice and giving opportunity of hearing to the parties. We would have been inclined to hold that order of reference was made on the first applications treating the second applications in continuation of the first applications on the facts and in the background of this case. But since the petitioners were not heard by respondent 2 earlier, at any stage. although they, being interested parties, were entitled to be heard In view of the provisions of section 30 of the Act, particularly of subsection (2) thereof, which gives them a right to appear and adduce evidence for the purpose of determining the amount of compensation, therefore, the petitioners are also the party who should have notice of the applications, under section 18 of the Act for making a reference to the Court, for unless they have notice, they cannot point out any defects in the applications or raise any otter .objections which could be considered only at that stage and not sub sequently. We may also mention here that the learned counsel for respondent 1 vehemently relying upon Messrs Lyallpur‑ Sahiwal Bus Service v. Appellate Authority and 2 others (P L D 1970 Lah. 775), submitted that the wrong derision on the question of limitation does not make it a question of jurisdiction. In the cited case, while: considering Malik Khizar Hayat Khan Tiwana and another v. Mst. Zainab Begum and others (P L D 1967 S C 403), their Lordships of the Division Bench of the Lahore High Court, observed as follows:‑ 'This decision is not apposite to the case before us because, as has been seen above, the defect of limitation is not a defeat of jurisdic tion; wherefore, any erroneous view of law taken on such a point would not be covered by this ruling because according to it. an erroneous view of law or an erroneous assumption of facts upon which the jurisdiction of the Court itself depends can be scrutinized under Article 98 of the Constitution." However, in the, present case the question of limitation was not at all decided by respondent 2 and was erroneously left by him to be decided by the Court which makes it a case of refusal to exercise jurisdiction vested in him. and is therefore one of jurisdiction. In Ahsan Ali v. District Judge (P L D 1969 S C 167) their Lordships of the Supreme Court had remanded the case to the Settlement Court for consideration inter alia the question of limitation a3 the same was not considered by it earlier. In the result, we declare the order of reference, dated 18‑4‑1969, to have been passed without lawful authority and. of no legal effect and direct respondent 2 to pass fresh orders on the first applications according to law after issuing nonce to the petitioners and respondent 1 and providing them opportunity of hearing. In the circumstances of the case we leave the parties to bear their own costs. S. A. H. Petitions accepted.