P L D 1961 (W (PLP)

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59. For the purpose of acquiring land under the Land Acquisition Act, 1894, for the trust‑‑ (a) the Tribunal shall (except for the purposes of section 54 of the said Act) be deemed to be the Court, and the President of the Tribunal shall be deemed to be the Judge, under the said Act ; (b) the said Act shall be subject to the further modifications indicated in the Schedule to this Act ; (c) the President 'of the Tribunal shall have power to summon and enforce the attendance of witness, and to compel the production of documents, by the same means and (so far as may be) in the same manner as is provided in the case of a Civil Court under the Code of Civil Procedure, 1908 ; and (d) the award of a Tribunal shall be deemed to be the award of the Court under the Land Acquisition Act, 1894 and shall be final." "66. (1) Whenever a Municipal Committee or other local authority acquires land for the purposes of‑ . (i) laying out new public streets in any locality whether previously built upon or not ; or (ii) constructing new buildings and laying out of compounds attached thereto, abutting on such new public streets in any locality, whether previously built upon or not ; or (iii) reclaiming unhealthy or insanitary localities‑ (a) the modifications of the Land Acquisition Act contained in the Schedule of this Act shall, as far as they are applicable, apply to every such acquisition ; (b) the Provincial. Government may constitute a Tribunal in accordance with section 60 and the provisions of sections 57 to 66 and of section 73 so far as they relate to the Tribunal, shall thereupon apply to such acquisition. (2) If the Provincial Government does not constitute a Tri bunal in accordance with clause (b) of subsection (1), all reference to the Tribunal in the Schedule shall be construed as referring to the Court. (3) Whenever the Provincial Government acquires land for the purposes of the setting up of a Satellite Town, whether within or beyond the local limits of a Municipal Committee, or other local authority or Trust, or for any other purpose which in the opinion of the Provincial Government is connected with the setting up of the Satellite Town concerned the pro visions of subsections (1) and (2) shall, as far as possible, apply to such acquisition. Explanation :‑For the purposes of this subsection a `Satellite Town' means new town to be set up in the vicinity of one already existing and includes such town the construction of which has been undertaken by a Co‑operative House Building Society registered under the Punjab Co‑operative Societies Act, 1912."

3. The argument of the learned counsel for the respondent was that the order of the learned District Judge was final and not open to question by means of an appeal or a petition for revision but, at any rate, no petition for revision lay and the petitioner, if he wanted to challenge the order the District Judge, should have done so by an appeal. In support of his contention that the order of the District Judge in the present case was not open to scrutiny by a higher Tribunal at all the learned counsel for the respondent relied on clause (d) of section 59 of the Punjab Town Improvement Act, 1922, wherein it is said inter alia that the order of a Tribunal appointed under section 58 of the Act shall be final. The learned counsel for the respondent contended that when a District Judge is called upon to dispose of a matter connected with compulsory acquisition of land for a Satellite Town, he should be deemed to be a tribunal for the purposes of the Punjab Town Improve ment Act, 1922, and because sub‑clause (b) of clause (iii) of subsection (1) of section 66 of that Act laid down that a tribunal set up under section 66 was to be governed by the provisions contained in sections 57 to 66 and of section 77 of the Act, the impugned order should be held to be sacrosanct and immune from scrutiny. Whether or not an order of a Tribunal set-up in accordance with section 66 of the Punjab Town Improvement Act, 1922, would be open to scrutiny by this Court is a question which does not arise in the present case and, I therefore, say nothing about it. I am, however, clear in my mind that the contention of the learned counsel for the respondent that the impugned order was final is entirely misconceived. It will be noticed that while for the purpose of determining compensation awardable on compulsory acquisition of land for an Improvement Trust set up. in accordance with the Punjab Town Improvement Act, 1922, the setting up of a Tribunal is obligatory under section 58 of that Act, it is, as is clear from section 66 of that Act, within the discretion of the Provincial Government to set up a Tribunal or not when compensation is to be awarded for land compulsorily acquired .by the Provincial Government for setting up a Satellite Town. It is further clear from section 66 of the Act that if the Provincial Government does not appoint a Tribunal for determining the compensation payable for land acquired for setting up a Satellite Town, the dispute between the owner and the Provincial Government will go before the Court contemplated by the Land Acquisition Act, 1894. The provisions of law applicable to the matter make it clear that even if the provisions of section 59 of the Punjab Town improve ment Act (IV of 1922) are applicable to the award of a Tribunal set up under section 66 of that Act‑a question which is not A being determined by me in this case‑the impugned order could not be held to be final as an order mentioned in section 59 of that Act for the simple reason that the order was not of a Tribunal contemplated by section

66. I would, therefore, hold that the contention of the learned counsel for the respondent that the impugned order was not open to scrutiny by this Court at all is without substance.

4. I will now take up the second point raised by the learned counsel for the respondent as his preliminary objection. He contended that the order of the District Judge in the present case was appealable because it shall be deemed to be a decree by reason of section 54 of the Land Acquisition Act, 1894 and consequently a petition for revision was incompetent. The reply of the learned counsel for the petitioner to this contention was that the case was not governed by section 54 of the Land Acquisition Act but by the provisions of law contained in the Code of Civil Procedure. The learned counsel for the petitioner elaborated this contention of his by saying that the order of the District Judge was not appealable because in the present case no appeal against such order was provided for by the Code of Civil Procedure, but the powers of this Court under section 115 of the Code of Civil Procedure to entertain petitions for revision against orders passed by any Court subordinate to it could be invoked by the petitioner. The contention of the learned counsel for the petitioner that no appeal was provided for against the order of a District Judge whereby compensation payable for compulsory acquisition of land for the purposes of setting up a Satellite Town was fixed cannot be accepted because section 66 of the Punjab. Town Improvement Act does not make the provisions of the Land Acquisition Act, 1894, inapplicable to acquisitions mentioned therein, as it is clearly mentioned in that section that the Land Acquisition Act, as modified by the Punjab Town Improvement Act, would apply to the acquisitions dealt with by it. The effect of the provision contained in section 66 of the' Punjab Town Improvement Act is that when an acquisition is made by the Provincial Govern ment for setting up a Satellite Town, the Land Acquisition Act 1894, shall be deemed to be amended to the extent mentioned in the Schedule to the Punjab Town Improvement Act, 1922 and if the Provincial Government sets up a Tribunal the function of the Court under the Act of 1894 will devolve on it. No provision in this Schedule amends section 54 of the Land Acquisition Act, 1894, and, therefore, it is obvious that the order of the District Judge in the present case could be questioned by an appeal in accordance with the provisions of section 54 of the Act of 1894. The provisions of section,115 of the Code o Civil Procedure are to the effect that the High Court may exercise its power of revision with regard to orders against which no appeal lies to it and as in the present case an appeal lay a revision petition would be incompetent. I might, however, make it clear that I am not laying down that the High Court cannot of its own motion exercise powers of revision in a case in which an appeal lay but had become barred by time.

5. The contention raised by the learned counsel for the respondent having succeeded to this extent that an appeal and not a revision lay against the impugned order of the learned District Judge, the question for consideration is whether his contention that the petition for revision should be dismissed on the short ground that a revision did not lie also merits success. It appears to me that the fact that a petition for revision has been filed when an, appeal should have been filed or vice versa is not sufficient for depriving a party of a remedy which has been sought under a wrong nomenclature. The object of the petitioner in the present, case was to have the impugned order examined by this Court and the circumstance that the petition was described as a petition for revision and not as a memorandum of appeal cannot, on only reasonable ground, be considered fatal for the case of the C petitioner. It is open to this Court to treat a petition for revision as a petition of appeal and a petition of appeal as a petition for revision and I direct that the petition in the present case should be treated as a memorandum of appeal.

6. Here another question arises. The learned counsel for the respondent urged that if the petition is treated as a memo randum of appeal, it is not properly stamped. The learned counsel for the parties were not agreed as to the amount of Court‑fee required for an appeal against the impugned order, the learned counsel for the petitioner stating that a Court‑fee of Rs. 10 was sufficient and the learned counsel for the respondent saying that the Court‑fee payable was on the amount which the petitioner wants to have knocked off from the award given by the learned District Judge, but they agreed that the Court‑fee paid on the petition for revision, that is, Rs. 4 was deficient if the petition is treated as a memorandum of appeal. The learned counsel for the petitioner urged that I should exercise my powers under section 149 of the Code of Civil Procedure, and extend the time for payment of the proper Court-fee, while the learned counsel for the respondent said that the discretionary powers vested in me by section 149 of the Code of Civil Procedure to allow a party in default to make up, the deficiency in Court‑fee should not be exercised. Section 3 49 of the Code of Civil Procedure gives very wide power to Courts to allow a party to make up the deficiency in Court‑fee on a document and directs that when the deficiency in Court‑fee has been made up under the orders of the Court, the document shall be deemed to have been properly stamped with court‑fee from the date on which it was put in Court. The discretion under section 149 of the Code of Civil Procedure to extend the time is not circumscribed by the statute, but I agree with the learned counsel for the respondent that it should be exercised in proper cases only.

7. Whether or not a case is one which calls for exercise of powers under section 149 of the Code of Civil Procedure must necessarily depend on the facts of each case. Cases can arise where a party has purposely paid deficient Court‑fee to gain an g advantage and it is obvious that the Court will not exercise its power under section 149 of the Code of Civil Procedure in favour of such a party. The present is not a case of that type because the Court‑fee was to be paid by Government and though the money which the Government will have had to pay was to be converted into court‑fee stamps, it would have remained with the Government and having been taken from one department of the Government would be placed to the credit of another department, It is also clear that in cases in which the question of the Court‑fee payable is not difficult to decide yet deficient Court‑fee has been paid, the Court will be slow to exercise its powers under section 149 of the Code of Civil Procedure. The Court‑fee paid by the petitioner on the petition for revision is Rs. 4 which would have been the amount payable if a petition for revision law, but as an appeal and not a revision lies the deficiency in Court‑fee has occurred. The learned counsel for the petitioner urged that a petition for revision was lodged because in many other cases from the same locality and concerning the same acquisition as in the present case, which have come to this Court at the instance of private persons, petitions for revision and not of appeal were instituted and the counsel, who lodged the petition on behalf of the petitioner was misled by that fact. That a number of cases with regard to acquisition of land for the purposes of the Satellite Town, Rawalpindi are pending in this Court is not denied by the learned counsel for the respondent and as some of those cases are before the Court in the form of revision petitions, I can see no reason for not accepting the statement of the learned counsel for the petitioner that what was done in other cases by counsel for private parties had misled the counsel for the petitioner and had led to a petition for revision being instituted instead of a petition of appeal.

8. I am further of the view that in cases where the mistake of a counsel engaged on behalf of Government is likely to result in loss to Government, the Courts should, provided their jurisdic tion in the matter is not circumscribed by law, be inclined t overlook the mistake unless it is of a serious character. M reason for this view is that, in a manner, the Government is but a custodian of the property which belongs to the citizens of the country and while it is true that the mistake of a counsel engaged on behalf of Government is a mistake of a counsel engaged by a party to the proceedings before the Court, the result of a mistake of a counsel engaged on behalf of the Government leads indirectly to loss to the tax‑payers the majority of whom had had no direct connection with the engagement of the counsel whose mistake will result in loss to them. I am not to be understood to be laying down that all mistakes of counsel engaged on behalf of Government are to be overlooked because if a mistake of such a counsel is inexcusable, I would be the last person to overlook it but as in the present case I am of the view that the mistake i.e., the filing of a petition for revision instead of a petition of appeal was not as inexcusable as it may, at the first sight, appear to be, I have decided to exercise the powers given by section 149 of the Code of Civil Procedure. Another circumstance also has weighed with me while considering the question whether or not to exercise the power given by section 149 of the Code of Civil Procedure in favour of the petitioner. I have already mentioned that the respondent brought for Rs. 21,500 the land acquired by Government in 1953 for the Satellite Town, Rawalpindi, but the money awarded by the learned District Judge to the respondent is about two and three quarter times the price paid by him barely four years before the acquisition, and the question whether or not the value of the land in that locality had gone up as much as it would appear from the order of the learned District Judge to have done, attains quite some importance by reason of the fact that a large number of other cases with regard to the same acquisition are pending in this Court and I understand in the Court of the District Judge of Rawalpindi also. If the order passed by the learned District Judge in the present case were to be allowed to become final though in law it is not, the price awarded to the respondent could be cited by the other parties as a precedent with the result that if the award by the learned District Judge errs in favour of the respondent, a lot of public money may have to be paid out unjustifiably. Consequently, I have decided to exercise the powers given to Courts by section 149 of the Code of Civil Procedure and allow the petitioner time till the 15th February 1960, to pay the balance of the Court‑fee. If the Court‑fee is paid within the period granted by me; the appeal shall stand admitted to a hearing as a first appeal and will be heard at a very early date along with the other cases of compensation for acquisition of land for the Satellite Town, Rawalpindi, which are pending in this Court. If the appeal is to be heard by a Bench of two Judges, the record need not be printed because it is not really necessary to do that in this case. If, however, the deficiency in the Court‑fee is not made up by the date mentioned above, the petition shall be placed before me in the presence of the counsel for the parties as soon after that date as possible. The petitioner shall pay the respondent a sum of Rs. 150 as costs for the unnecessary adjournment of the case necessitated by reason of the mistake of his counsel. A. H. Order accordingly.