P L D 1968 Lahore 1176 (PLP)

This appeal raises law point of considerable importance, namely, whether provisions of Order XXII of Civil Procedure Code are applicable to proceedings on a reference by the Collector under section 18 of the Land Acquisition Act, 1894, hareinafter called the Act?

2. The essential facts leading to this appeal are that land measuring 4 acres, 6 kanals and 15 marlas belonging to two brothers, Muhammad Saeed and Muhammad Sharif was acquired for public purpose by the Collector, Lyallpur. He gave his award under section 11 of the Act for the compensation payable for the land. On an application made in that behalf by both the brothers, the Collector made a reference to the Civil Court under section 18 of the Act, which was heard by the Senior Civil Judge, Lyallpur. During the pendency of the proceedings before the Senior Civil Judge, Muhammad Sharif died on the 10th of May 1961. On the 13th of February 1962, that is to say long after ninety days from the death of Muhammad Sharif, his son Muhammad Atiq‑ur‑Rehman applied for bringing on the record the legal representatives of the deceased. An application under section 5 of the Limitation Act, 1908, was also made for condona tion of delay. The application was opposed by the Provincial Government on the ground that there was no good ground for condonation and therefore it was barred by limitation. Further there being no evidence on the record to show that the share of the two brothers in the land acquired were specified, the proceedings abated in toto. On the above facts the learned Senior Civil Judge framed the following issues:‑ (i) Whether the application under consideration has abated. If so to what extent and with what effect ? (ii) Whether sufficient ground exists for condoning the delay in submitting the application fur setting aside the abatement ?

3. The learned Senior Civil Judge found that the proceedings on reference under section 18 of the Act being proceedings in the nature of a suit abated automatically on the expiry of ninety days of the death of Muhammad Sharif. He further found that there was no evidence to show that the shares of the two brothers in the land acquired were specified and therefore the case cannot proceed vis‑a‑vis Muhammad Sharif. Learned Senior Civil Judge opined that in the event of any variation in the rate of compensation there will be two conflicting awards with regard to the same land and to obviate this conflict the proceedings must be held to have abated in toto. On issue No. (ii) the learned Senior Civil Judge found that there was no ground for condoning delay. Accordingly, objection against the Collector's award was dismissed.

4. Order XXII, Civil Procedure Code in terms applied to suits and to appeals. Rule 12 expressly excludes the application of the Order to the proceedings in execution of a decree or order. Therefore, the real question that falls for determination in this appeal is whether the proceedings on reference under section 18 of the Act, are proceedings in a suit, so as to attract the applica tion of Order XXII, C. P. C. 7 Under rule 1 of Order IV, C. P. C. presentation of a plaint is a sine qua non for the institution of a suit. Sub‑rule (2) ibid provides that a plaint in a suit shall comply with the rules contained in Orders VI and VII of the Code. In the instant case, however, the proceedings before the Senior Civil Judge did not commence with the presentation of any plaint by the deceased or his brother Muhammad Saeed or by the Collector. Under section 19(1) of the Act, the Collector is merely required to forward "a statement" to the Court, setting out the information specified therein, with a Schedule under subsection (2) ibid. The statement and the schedule bear no similarity, to a plaint and its requirements under the Code. Again vide section 26 of the Act, every determination by the Court under Chapter III of the Act is termed as "awarded" which "shall be deemed to be decree" and the statement of grounds of award, "a judgment within the meaning" of section 2 of the Code. These provisions leave no manner of doubt that the proceedings under section 18 of the Act are not proceedings In a suit, and hence the necessity of the deeming provision in section 26 of the Act, in order to make the award executable as a decree of a Civil Court. If the award had been a decree in its own force, which would have been the case in the event of the suit, then there was hardly any need, for this deeming provision.

5. The question can also be viewed from another angle. Section 12 of the Act makes the Collector's award final, except as otherwise provided in the provisions of the Act occurring there after. Once "any person interested" who has not accepted the Collector's award, applies for a reference to the Court under section 18 of the Act, the Collector is bound to make the reference and this robs the award made by the Collector of its finality which it might have otherwise attained under section 12 of the Act. Therefore, strictly speaking upon a reference being made, there is no binding award with regard to the compensation for the land acquired by the Government and upon a reference being made it became the duty of the Court to affirm or modify the award under section 26 of the Act so as to make it final and binding upon the parties. That the duty is squarely cast upon the Court, to further the progress of proceedings initiated, at the instance of any interested party, by the Collector, is also manifest from the provision of section 20 of the Act which is in mandatory terms. It reads:‑ "

20. The Court shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely (a) the applicant ; (b) all persons interested in the objection, 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 the compensation, the Collector." A plain reading of the section makes it clear that the Court is not only bound to issue notice of the proceedings to the applicant but also under clause (b) the `all persons interested' in the objection. This expression is of the widest amplitude and in my opinion in the absence of any qualifying words would include the legal representatives of the deceased who immediately became interested in the objection by devolution of the interest in the estate of the deceased, by operation of law. This section stands in sharp contrast with the provisions of Order XXII of the Code, which makes it obligatory upon the plaintiff or the defendant as the case may be, to apply within the prescribed time for bringing) the legal representatives of a deceased party on the record, if the right to sue survives. Upon this view of the matter, section 20 of the Act is plainly inconsistent with the provisions of Order XXII of the Code, and on the principle of generalia speciallus non derogent, must prevail as against the latter provision.

6. The above interpretation of section 20 of the Act, can also be supported on another general principle governing, the interpretation of the status. By and large, the provisions of the Act are remedial in the sense that the Act inter alia, devises a machinery "for determining the amount of compensation to be made on account of compensation" (See Preamble to the Act). In such cases, as observed in "Maxwell on Interpretation of Statutes," 1962 Edns. at p. 66, it is the duty of the Courts to construe the provisions liberally so as to advance the remedy. And indeed while construing remedial provisions Courts have always leaned in favour of beneficial construction. In the instant case, the above construction of section 20 is also agreeable with justice, equity and good conscience.

7. Learned Advocate‑General on the other hand relied upon section 53 of the Act which reads:‑ "Save in so far as may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under this Act." The argument was that the section is in general terms which makes all the provisions of the Code including Order XXII applicable to the proceedings on reference by the Collector under section 18 of the Act. The argument, however, overlooks the limiting words occurring in the beginning of the section. A similar argument canvassed in the case of Abdul Karim v. The State of Madhya Pradesh (AIR 1964MP171) was repelled by the learned Judges on the ground that the essential condition in the application of the provisions the Code to the proceedings under section 16 of the Act is that the provisions of the Code must not be inconsistent with any thing contained in the Act. It was, however, observed that for the purpose of inconsistency it is not necessary that there should be an express provision to the contrary in the Act itself. It would be enough if the applicability of a provision of the Code to any proceedings before the Court under the Act would be incompatible with the nature of the proceedings. The learned Judges also took the view that once a reference is made under section 18 a Court is under an obligation to make an award under section 26 which again is a mandatory provision, no matter whether the person at whose instance the reference has been mad:, appear or fails to appear before the Court fails to produce evidence in support of his objection. On the basis of the provisions of the Act, therefore, the learned Judges came to the conclusion that the application of Order XXII of the Code is "altogether inconsistent with the very nature and scope of the proceedings under section 17". I respectfully concur with the above conclusion and the reasons upon which it is based.

8. Learned Advocate‑General, however, argued that in view of the later judgment of the Indian Supreme Court in State of Punjab v. Nathu Ram (AIR 1962 S C 89) the view taken in the case of Abdul Karim had become obsolete. The case before the Indian Supreme Court is clearly distinguishable on facts. That was a case of acquisition of land belonging to two brothers `L' and `N' under the Defence of India Act, 1939. The owners of the land refused to accept compensation offered by the Collector and on an application made in that behalf the State Government referred the matter to an arbitrator under rule 10 of the Punjab Land Acquisition (Defence of India) Rules, 1943. The arbitrator made a joint award granting a higher compensation and also a certain sum on account of Income‑tax. The State Government appealed against the award to the High Court. During the pendency of the appeal `L' one of the brothers died, and his legal representatives were not brought on the record. It was in these circumstances that the appeal of the State Government was held to have abated in toto. It is plain that in this case the acquisition of land was under a different statute which provided entirely a different machinery for the assessment of compensation. In the instant case, the matter in controversy turns on the proper interpretation of sections 20 and 26 of the Act which did not fall for the interpretation of the India Supreme Court. Therefore, the precedent case relied upon by the learned Advocate‑General is unavailing to the respondent. Accordingly, I hold that the view taken by the learned Senior Civil Judge, that Order XXII of the Code applied to proceedings under section 18 of the Act, is wholly mistaken.

9. On the above view of the matter it becomes unnecessary to determine the further question as to whether or not in the circumstances of the case proceedings before the learned Senior Civil Judge abated in toto.

10. For the foregoing reasons I accept the appeal, set aside the order of the learned Senior Civil Judge and remand the case for further proceedings in accordance with law after notice to all the persons interested including legal representatives of Muhammad Sharif deceased. In the circumstances of the case, however, I leave the parties to bear their own costs. A.E. Appeal accepted.