1999 PLP 2009 (SCMR)

SH. IJAZ NISAR, J.

This appeal by leave of the Court is directed against the order, dated 25-1-1994, passed by the Peshawar High Court, Circuit Bench Abbottabad, dismissing the appeal filed by Suleman, etc. the appellants herein.

2. The facts, in brief, are that the land measuring 502 Kanals, 3 Marlas, was acquired by the Government of N.-W.F.P. for P.M.A. Kakool. The land owners claimed compensation at the rate of Rs. 1,50,000 per Kanal in addition to the compensation for trees and construction made thereon. The Land Acquisition Collector assessed the market value of the land on the basis of one year average of the sale transaction made in the said village before the issuance of Notification under section 4 as under:

1. Bagh. Rs.80,074.40 per Kanal

2. Bari Abi Rs.52, 707.20 "

3. Bahar Di Abi Rs. 39, 530.40

4. Bari Rs. 37,503.20 "

5. Bela Rs. 36,489.60 "

6. Maira Rs. 16,217.60 "

7. Ghair Mazrooa Rs. 1,013.60 " "

3. Dissatisfied with the Award, the land owners filed petitions under section 18 of the land Acquisition Act, 1894 (hereinafter referred to as the Act) which were referred to the Land Acquisition Judge for determination of fair compensation. After recording evidence of the parties and relying on the judgment of the High Court in respect of the landsituate in the same village in R.F.A. No.21 of 1984, which was upheld by the Supreme Court of Pakistan in Central Government of Pakistan v. Sardar Fakhre Alain and another (1986 SCMR 188) the compensation was assessed at the rate of Rs. 1,00,000 per Kanal irrespective of its situation, kind and potentiality by the Senior Civil Judge, Abbottabad; exercising the powers of District Judge under the Act vide judgment and decree dated 20-10-1985.

4. Dissatisfied with the judgment and decree the Central Government through Defence Secretary, Military Estate Officer, filed R.F.As. in the Peshawar High Court, which were accepted on 20-1-1987 and the Award was modified to the extent that the compensation was fixed at the rate of Rs.25,000 per Kanal plus 15 % compulsory acquisition charges.

5. The land owners excluding the appellants challenged the judgment of the High Court in the Supreme Court by filing appeals, which were accepted on 28-7-1991 and the judgments/orders of the High Court were set aside on the ground that the Federal Government, its departments or the local authority for whose benefit the land had been acquired had no right to appeal to the High Court.

6. The appellants herein, who had not appealed to the Supreme Court against the judgment/order of the High Court filed applications for the execution of the judgment and decree of the learned Senior Civil Judge, Abbottabad, dated 20-10-1985, which had been set aside by the Peshawar High Court but restored by the Supreme Court of Pakistan. The judgment-debtors contested the applications contending that the appellants were not entitled to derive benefit from the judgment of the Supreme Court because they had not filed appeals against the judgment of the High Court.

7. After hearing the arguments of -the learned counsel for the parties, the learned Senior Civil Judge rejected the execution application on 4-7-1973 on the ground that the benefit of the judgment dated 28-7-1991 of the Supreme Court could not be given to non-appealing landowners.

8. The appellants filed appeal in the High Court against the aforesaid order, which was dismissed with the following observations:

"There is no cavil that the law enunciated by the august Supreme Court of Pakistan is to be followed by all the Courts and Tribunals. The reference under the Land Acquisition Act and appeal therefrom to the august Supreme Court of Pakistan was in relation to the facts as to payment of amount-of compensation to the interested persons who are affected by the compulsory acquisition of land. Each case has its own facts and circumstances. The decision on facts of the case by the august Supreme Court of Pakistan is not an enunciation of law. Moreover, the judgment in the cases are not in rem as no public right was involved in the dispute. "

9. Leave to appeal was granted by this Court on 22-6-1994 to the appellants to consider whether they were also entitled to recover the amount of compensation according to the judgment of the Senior Civil Judge, Abbottabad, passed on a Reference under section 18 of the Land Acquisition Act, in view of the judgment of this Court in Civil Appeals Nos.45-P to 51-P of 1987 decided on 28-7-1991, holding that the Federal Government and its Departments had no right to file appeal before the High Court in acquisition matter and dismissing all the appeals before the High Court filed by the Federal Government etc., against the landowners.

10. It is contended that the learned High Court misconceived the legal position by observing that the judgment delivered by the Court was not an enunciation of law. It is further stated that after setting aside the judgment and decree passed by the Peshawar High Court the only executable decree in the field was the one passed by the Senior Civil Judge, Abbotabad on 20-1-1993, and the appellants like the other landowners were entitled to the same compensation received by them according to the judgment and decree of the Senior Civil Judge. In support of the above contentions reliance was placed on Sultan Muhammad Salah-ud-Din Khan v. The Land Acquisition Collector, Industries of Pakistan through Deputy Commissioner, Bannu and another (PLD 1988 Peshawar 7 1). The facts of the said case were that the Government of West Pakistan through P.I.D.C. acquired 796 Kanals and 7 Marlas of land situated in village Hafizabad, Lakki Tehsil for an agricultural farm and notification under section 4 of the land Acquisition Act was accordingly published on 12th May, 1961. The P.I.D.C. subsequently with a view to set up a sugar mills decided to acquire more area of 942 Kanals and 17 Marlas and in this respect notification under section 4 of the Land Acquisition Act was published on 7th December, 1962. The Land Acquisition Collector allowed Rs. 109.6 annas per Kanal plus compulsory charges at the rate of 15 % for the land acquired for agriculture farm and Rs.175 per Kanal with 15% compulsory charges for 942 Kanals and 17 Marlas acquired for the purposes of the sugar mills. Out of the land acquired for sugar mills 660 Kanals and 2 Marlas belonged to Mst. Nargis Khan and others while an area of 282 Kanals and 15 Marlas belonged to Sultan Muhammad Salahuddin Khan and two others. Since the land owners were not satisfied with the award they filed independent objections which were referred to the District Judge who by this order, dated 8th March, 1986 assessed the value of the land acquired for the sugar mills at the rate of Rs.225 per Kanal plus compulsory charges at the rate of 25 % and Rs. 140 per Kanal for the land acquired for the agricultural farm. Mst. Nargis Khan etc. feeling dissatisfied with the award filed Regular First Appeals No. 15 of 1966 and No. 14 of 1966 while the Government also filed cross-objections No. 17 of 1966 and No. 16 of 1966 in the Peshawar High Court, Peshawar against the judgment and decrees of the learned District Judge, and the High Court as per its order dated 4-1-1972 fixed the price of the land as Rs.300 per Kanal with respect to the land acquired for the purpose of sugar mills and Rs.200 per Kanal with respect to the land acquired for agricultural farm. The landowners were also allowed 15% compulsory charges and 8% compound interest. The objections. of both the parties namely Mst. Nargis Khan etc. and Sultan Muhammad Salahuddin etc. were adjudicated upon by the learned District Judge, Bannu through the same judgment and decree in consolidated proceedings. Mst. Nargis Khan etc. filed appeals in the High Court, while Sultan Muhammad Salhuddin etc. preferred no appeal against the verdict of the District Judge. Against the judgment of the Peshawar High Court referred to above W.P.I.D.C. through sugar mills Bannu filed Civil Appeals Nos.42-P of 1972 and 43-P of 1972 and the Land Acquisition Collector, Bannu filed two Appeals Nos.44-P of 1972 and 45-P of 1972 in the Supreme Court of Pakistan. However, by the order, dated 13th November, 1982 the Supreme Court upheld the judgment of the High Court referred to above and dismissed all the four appeals. Sultan Muhammad Salahuddin filed execution petition on 1-3-1983. The Executing Court by order dated 2-6-1986 paid a cheque of Rs.22,620 to Sultan Muhammad Salahuddin holding that the share of the decree- holder in the light of the judgment of the District Judge at the rate of Rs.225 per Kanal for the land acquired plus 25 % compulsory execution charges came to that amount. Sultan Muhammad Salahuddin, the decree holder, received that amount under protest claiming that in the light of the judgment of the High Court he was also entitled to the compund interest on the enhanced rates. He then filed an appeal in the High Court against the order dated 2-,6-1986 of the executing Court. The learned High Court after discussing the case law at length allowed the appeal filed by Sultan Muhammad Salhuddin Khan with the following observations:-- "From the above discussion it can very easily be inferred that the decree of the Court of first instance merges into the appellate decree which alone is capable of execution and that presently the decree of the Court which requires execution is the one granted by the High Court and subsequently affirmed by the Supreme Court of Pakistan and despite the fact that Sultan Muhammad Salahuddin did not challenge the decree of the District Judge in the High Court, the High Court has granted relief to all the objectors including Sultan Muhammad Salahuddin by implication and, thus, the decree executable in favour of Sultan Muhammad Salahuddin is also that of the Honourable High Court. Accordingly I accept this First Appeal and set aside the order dated 2-6-1986 of the learned executing Court and allow the appellant to file amended execution application in accordance with the terms of the decree passed by the High Court referred to above and remand the case to the executing Court for proceedings with the execution in the light of the above observations."

11. In another case titled Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185), under Civil Servants Act (LXXI of 1973), this Court had observed that if the Supreme Court decides a point of law which covers not only a civil servant, who litigated, but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictates and rule of good governance would demand that the benefit of such judgment be also extended to other civil servants, who may not be parties to the litigation.

12. The judgment dated 20-1-1987 of the High Court was set aside by this Court on the ground that the Federal Government, its Departments, or the local authority for whose benefit the land had been acquired, had no right to appeal to the High Court, and it was the Provincial Government alone apart from the affected landowners who could appeal against the orders of the Land Acquisition Judge. In consequence, the orders of the Land Acquisition Judge remained in the filed only. Since the appeals filed in the High Court were held to have not been filed by the parties having the right to appeal, the orders of the High Court shall be deemed to be void and the appellants could not be made to receive the compensation as fixed by the High Court in pursuance of the said void order. The necessary corollary of the dismissal of the appeals filed by the Federal Government in the High Court was the restoration of the judgment and decree of the Land Acquisition Judge dated 20-10-1985. It would be unjust to deprive the appellants from receiving benefit of the judgment and decree of the Land Acquisition Judge merely for the reason that they had not appealed against the order of the High Court when the same order challenged by the other land owners similarly placed had been set aside by this Court. The appellants are said to be the owners of 18 Kanals and 6 Marlas of land out of the total acquired land measuring 502 Kanals and 3 Marlas. All the other landowners are reported to have received compensation as per-judgment of the Land Acquisition Collector and we see no reason to deprive the appellants of their share of the compensation in accordance with the said judgment.

13. Accordingly, we accept the appeal, set aside the order of the learned High Court and direct the payment of compensation to the appellants in accordance with the judgment and decree of the Land Acquisition Court currently holding the field. However, the parties are left to bear their own costs. H.B.T./S-130/S Appeal accepted.