2020 PLP 1202 (CLC)

AHMAD ALI, J.

The appellant through present appeal has called in question the vires of order dated 12.02.2014 of the learned Addl. District Judge-VIII/Judge Referee Court, Mardan, whereby his reference petition was dismissed as not maintainable.

2. Facts of the case, necessary for disposal of the present petition are that, certain property, included the land owned by present appellants, was acquired for the construction of Khyber Pakhtunkhwa Agriculture University, Ameer Muhammad Khan Campus, Mardan. In this regard, proceedings in accordance with the Land Acquisition Act, 1894, were carried out and finally, the Award No.59/4 was announced on 28.09.2010 whereby compensation of the acquired land was fixed as Rs.2800/- per marla. But, the Collector Land Acquisition awarded compensation of the land of appellant to one Shamsul Hadi son of Abdul Hadi who was arrayed as respondent No.7 in the reference petition. Thus, petitioner filed petition under Section 18 of the Land Acquisition Act, 1894, read with sections 30 and 31 of the Act ibid before the Collector Mardan. However, the Collector while holding the reference under section 18 of the Act as time barred, referred the same to the Referee Court. The learned Referee Court after receiving the Reference, processed the same where respondent No.7 put his appearance and returned the compensation so received by him to the extent of the land of appellant, and accordingly the name of respondent No.7 stood deleted from reference petition vide order dated 06.12.2013. Statement of the Clerk of Deputy Commissioner Office, Mardan, was recorded as PW-1 and thereafter vide impugned order dated 12.02.2014, the reference petition was rejected by the learned Referee Court on the ground that relief under sections 30/31 of the Act has already been awarded to appellant and therefore, no proceedings under section 18 of the Act ibid can be carried out. Hence, appellant has filed present appeal.

3. Arguments heard and record perused.

4. Meticulous sifting of the record reveals that the Award No.59 (hereinafter referred as the Award) was announced on 28.09.2010. In Para No.5 of the Award, the Land Acquisition Collector has given the detail and names of all the land owners and in Para No.6 there is factum of issuance of Notices under sections 9 and 10 of the Land Acquisition Act, 1894 (hereinafter referred as the Act) to interested persons. It is an undeniable fact that the name of appellant is neither mentioned in the ibid list of owners as mentioned in the Award nor compensation was paid to him and instead, compensation was paid to another person namely Shamsul Hadi who thereafter, during pendency of objection petition refunded the amount for payment to proper person/owner i.e. appellant.

5. The appellant in Para No.6 of the objection petition, has mentioned that he was not informed about the acquisition proceedings and award. The list of owners and giving them notices under sections 9 and 10 of the Act, as detailed in the impugned Award and then giving compensation to a wrong person, is the proof of fact that appellant was totally unaware of the acquisition proceedings as well as Award. The knowledge could have been acquired by the appellant either from the notices, under sections 9 and 10 or from the payment of compensation. Besides there is nothing on the record to show that any notice as per the mandate of Section 12(2) of the Act was issued to appellant. If it is presumed that such notices were issued to all the interested persons, even then, the same cannot help the acquiring department as the said notices were issued to interested persons enlisted in the award which does not contain the name of appellant. Hence, it can be safely held that no notice as required under section 12(2) of the Act was issued to appellant. Thus, limitation starts from the date of knowledge and guidance in this regard has been provided by the august Supreme Court of Pakistan in the case titled "Allahdino v. Faqir Muhammad" (PLD 1969 SC 582) wherein it was held that in a case where a party is kept in dark about the fate of his case it is wrong to say that for a remedial action against him, as provided by law, time would start to run against him from the date of the order and not from the date when he comes to know about it. Besides, the august Supreme Court (AJ&K) in the case titled, "Muhammad Jan and 4 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 7 others" (1996 CLC 1967) held: "Service of notice on affected persons was legal requirement in terms of S. 12, Land Acquisition Act, 1894

No adverse action can be taken against any person by keeping him in dark

Where petitioners were kept in dark about proceeding or order of award, limitation was to run from date of knowledge

Where application under S. 18, Land Acquisition Act, 1894 was moved within few days from date of knowledge, same was in no way barred by time

Collector acted illegally by rejecting application for reference to Court and his order was declared to be without lawful authority and of no legal effect

Order of High Court was set aside and Collector was directed to refer matter for determination of Court in accordance with law."

6. Reliance is also placed on the case titled, "Muhammad Meharban and 4 others v. Collector Land Acquisition Mirpur Zone-I and 2 others (2017 YLR 217) and the case titled "Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and another v. Waheed Ahmed Khan and 10 others" (2017 YLR 1895) wherein it was held that in case of non-compliance of the mandatory provisions of Section 12(2) of the Land Acquisition Act, 1894, the limitation starts from the date of knowledge of the Award and not from the date of passing of award.

7. The record further manifests that the objection petition was filed under sections 18, 30, 31 of the Act which was referred to the Referee Court by the Collector vide letter No.5012/L.A. Cell dated 27.06.2012, which is reproduced hereunder for ready reference: OFFICE OF THE DISTRICT OFFICER (R&E) MARDAN No.5012/L.A. Cell dated 27.06.2012 To: The District and Sessions Judge, Mardan. Subject: REFERENCE PETITION UNDER SECTIONS 18/30/31 OF THE LAND ACQUISITION ACT, 1894 Memo: Enclosed is a reference petition under sections 18/30/31 of the Land Acquisition Act, 1894 titled Hazrat Wali v. Land Acquisition Collector Mardan etc received in this office on 26.06.2012 for disposal under sections 30/31 as section 18 mentioned therein is barred by limitation. Sd/- District Officer (R&E)/ Collector Mardan.

8. From the above letter, it is clear that the Collector forwarded the petition under sections 18/30/31 of the Act to the Referee Court, however, the letter is ambiguous and there is no specific order as to the rejection of objection petition to the extent of Section 18 of the Act, rather it is mentioned that Section 18 of the Act is barred by limitation.

9. There is no cavil with the proposition that there is no specific method for filing reference under sections 30 and 31 of Act, rather Section 18 of the Act deals in the filing of reference which also encompasses the purpose as defined in Sections 30 and 31 of the Act. Provisions of Sections 30 and 31 cannot be taken in isolation of the Section 18 of the Act nor section 18 can be separated from the provisions of Sections 30 and 31 of the Act ibid. Section 18, 30 and 31 of the Land Acquisition Act, 1894, are reproduced below for ready reference.

18. Reference to Court: (1) Any person interested who has not accepted the award may, by 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 grounds 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.

30. Dispute as to apportionment: When the amount of compensation has been settled under Section 11, if any dispute arises as to the appointment of the same or any part thereof or as to the persons to whom the same or any part thereto is payable, the Collector may refer such dispute to the decision of the Court.

31. Payment of compensation or deposit of same in Court: (1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by someone or more of the contingencies mentioned in the next subsection. (2) If they shall not consent to receive it, or if there by no person competent to alienate the land, or if there by any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto. (3) Notwithstanding any-thing in this section the Collector may, with the sanction of the Provincial Government, instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land-revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned. (4) Nothing in the last foregoing subsection shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof.

10. It is clear from the above provisions that Section 18 of the Act is not limited to the re-determination of compensation amount rather it only provides a mechanism to file an application to the Collector, requesting him to refer the matter for determination of the Court for determination of his objections regarding: i. measurement of the land; ii. the amount of the compensation; iii. the persons to whom compensation is payable; or iv. the apportionment of the compensation among the persons interested.

11. Whereas, section 30 deals in the dispute as to apportionment of the amount of compensation which also falls within the domain of Section 18 ibid. Admittedly no payment was made to appellant which was so refunded by Shamsul Hadi, during pendency of the present Reference, therefore, the filing of reference itself is sufficient to construe protest within the purview of subsection (2) of the Section 31 of the Act.

12. Thus, provisions of Sections 30/31 and that of the Section 18 of the Land Acquisition Act, 1894, cannot be separated from each other. If objection petition was barred by the provisions of Section 18 of the Act then the same would not have been referred to the Referee Court and Collector was required to dismiss the same in its entirety; and once it referred to the Referee Court then the Referee Court cannot blow hot and cold together by entertaining the objection petition to the extent of apportionment of the compensation and by denying to entertain it to the extent of re-determination of the compensation. Such an act is not the scheme of law. If an objection petition once referred to the Referee Court then the referee court should have determined all the four objections as defined under Section 18 of the Act, 1894 and it cannot make pick and choose. The letter of Collector as referred above is self-contradictory, as on one hand Collector is denying to refer the matter by considering it as barred by limitation under section 18 of the Act, whereas on the other hand, he is referring the matter to the Referee Court which by all practical purposes fall within the domain of Section 18 of the Land Acquisition Act, 1894. It is settled law that once, the reference is made to the Referee Court then there remains only option for the referee court to proceed it in accordance with law and the Court cannot take a back-step on the ground of limitation. Reliance is placed on the case titled Jannat Khan v. Chairman National Highway Authority, Islamabad and 3 others reported in 2013 CLC 1134 [Peshawar].

13. For what has been discussed above, while allowing the present appeal the impugned order is set aside and the case is remanded back to the learned Referee Court to decide the same fully in accordance with the provisions of Section 18 of the Land Acquisition Act, 1894, by recording pro and contra evidence of parties, but not later than six months after receiving the case file. No order as to cost. ZC/8/P Case remanded.