1989 PLP 1941 (CLC)

AJMAL MIAN, C.J.‑‑ This is a petition filed by the Provincial Government against the order dated 5‑1‑1982 passed by the learned land Additional District Judge, Nawabshah upon a reference made to him under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) by the Assistant Commissioner/Land Acquisition Officer, Moro on 1‑7‑1980 whereby he increased the amount of compensation from Rs.1.50 per sq.ft. to Rs.3 per sq.ft.

2. The brief facts leading to the filing of the above petition are that the Deputy Commissioner Nawabshah issued a Notification under section 4 of the Act, published in the Sind Government Gazette on 15‑12‑1977, acquiring Survey Nos.22/1 and 22/2 measuring 8.29 acres situated in Deh Lundki for the public purpose of constructing hostel for Mehran Arts College, Moro. After that he issued another Notification under section f> read with section 17(4) of the Act published in the Sind Government Gazette on 4‑4‑1978 whereby he took over the possession of the land. In response to section 9(1) of the Act's notice respondent No.l, the owner of the land, filed his claim at the rate of Rs.1.50 per sq.ft. The Assistant Commissioner by his award dated 4‑4‑1978 awarded at Rs.4,389 as the compensation. However, upon a representation made by respondent No.], he revised the above amount and awarded the compensation at the enhanced rate of Rs.8,000 per acre, by his order dated 23‑4‑1978. After that respondent No.1 received the above amount of compensation. However, on 13‑1‑1979 respondent No.l sent a telegram disputing the above amount which telegram was replied to by the Deputy Commissioner on 14‑2‑1979. After the expiry of more than six months, respondent No.] made a request to the Assistant Commissioner to make a reference to the District Judge under section 18 of the Act, in response to which the Assistant Commissioner made a reference to the District Judge, Nawabshah which was heard by the learned IInd Additional District Judge, Nawabshah, who by his aforesaid impugned order dated 5‑1‑1982 awarded at Rs.3 per sq.ft. The petitioner being aggrieved by the above order has filed the present petition.

3. In support of the above petition Mr. Abdul Hafeez Lakho, learned A.‑G. has urged as follows:‑ (i) That the reference was time‑barred and, therefore, the learned Assistant Commissioner was not justified to make a reference to Additional District Judge. (ii) That since respondent No.l had claimed compensation at the rate of Rs.1.50 per sq. ft., the learned Additional District Judge could not have awarded compensation at the rate of Rs.3.00 per sq. ft. and by doing so he exceeded his jurisdiction. 4.On the other hand Mr. Shamsul Arifin, learned counsel appearing for respondent No.l has raised the following preliminary objections:‑ (i) That the petitioner has no locus standi to file the above petition. (ii) That the petitioner has not approached this Court with clean hands inasmuch as it has suppressed the material facts and hence the petition is liable to be dismissed on this ground. (iii) That the petition suffers from laches. (iv) In reply to the submission of Mr. Abdul Hafeez Lakho on the question that the reference was barred by time, Mr. Shamsul Arifin has submitted that once the reference was made by the Assistant Commissioner, the learned Additional District Judge was bound to dispose of the same on merits. However, he has not made any submission on the merits of the amount of compensation.

5. In our view it will be pertinent First to take up the above preliminary objections of Mr. Shamsul Arifin. As regards his first submission that `the petitioner has no locus standi to file the above petition, it may be observed that in support of the above submission he has referred to the case of Pir Khan through his Legal Heirs v. Military Estate officer, Abbotabad and others, reported m PLD 1987 SC 485, in which the Hon'ble Supreme Court while construing sections 18 and 50 (2) of the Act, has held that "subsection (2) of section 50 expressly and in terms controls section 18 of the Act and takes away the right from the local authority or company for whom the land is being acquired to demand a reference under section 18 of the Act and that the right of a local authority or a company under subsection (2) of section 50 is the right to appear in proceedings before the Collector or the Court and adduce evidence for the purposes of determining the amount of compensation, but a reference under section 18 by them is barred because of above subsection (2) of section 50 of the Act. It has further been held that the order of the Civil Court on reference made. to it by the Land Acquisition Collector is not an independent order, but merely a substantive order, whereby the award of the Land Acquisition Collector is substituted by the order of the Civil Court, which order then became the award and that since by virtue of subsection (2) of section 50 of the Act the award by the Land Acquisition Collector is final and cannot be challenged except by a party which has expressly been conferred the right of appeal, hence the party, who did not have any such right expressly conferred on them, did not have locus standi to file an appeal. I1 has also been held that no such right is to be assumed on any priori ground and the right of appeal can be exercised only if it has been expressly conferred on a party by Statute. The Hon'ble Supreme Court quoted with approval the case of WAPDA through its Chairman v. Aurangzeb Khan and others PLD 1975 Pesh. 1, the case of The Pabna Electric Supply Co. Ltd. v. Kaliprashad Bhattacharwa and another PLD 1960 Dacca 461 and the case of Kasimbhai and another v. The Deputy Commissioner, Dadu and others PLD 1968 Kar. 126_ 6.There is no doubt that the ratio decidendi of the above Supreme Court case is that the local authority or a company or even the Government for whose benefit the land is acquired, has no right to make an application under section 18 of the Act for getting the reference made to the District Judge for determining the amount of compensation, and that nor they have any right to file an appeal against the judgment of the District Judge passed by him on receipt of a reference under section 18 of the Act. The above conclusion is in consonance with provisions contained in subsection (2) of section 50 of the Act which provides that in any proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation. The proviso to the above subsection provides that "provided that no such local authority or company shall be entitled to demand a reference under section 18 of the Act. The object of the above provisions seems to be to ensure prompt payment of the amount of compensation to the owner of the property which has been acquired and of which the possession was taken over without payment of any compensation. The above object cannot be defeated by allowing a local authority or a company to initiate any other legal proceedings in place of reference under section 18 of the Act or an appeal none of which they can invoke because of express prohibition under proviso to subsection (2) of section 50 of the Act. It must, therefore, follow that generally the Court will be reluctant to entertain a constitutional petition against an award or a judgment given by a District Judge upon a reference under section 18 of the Act. However, in exceptional case where the Court finds that the award or the judgment given by the District Judge upon a reference made to him under section 18 of the Act is perverse and contrary to law, the Court may entertain a constitutional petition, as an authority or tribunal or a Court which is invested with jurisdiction to decide a particular matter has no jurisdiction to decide it rightly or wrongly, but the condition of grant of jurisdiction is that it should decide the matter in accordance with law, and when the authority or tribunal or Court goes wrong in law, it goes outside jurisdiction conferred on it because it has jurisdiction to decide rightly, but not the jurisdiction to decide wrongly. Reference may be made in this behalf to the latest pronouncement of the Hon'ble Supreme Court in the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others reported in PLD 1987 SC 447.

7. Adverting to the second preliminary objection of Mr. Shamsul Arifin that the petitioner has not approached this Court with clean hands inasmuch as it has suppressed the material facts and hence the petition is liable to be dismissed on this ground, it may be observed that he has invited our attention to the factum that the petitioner has not made any reference to the facts that it had filed objections to the execution application which was dismissed on 22‑8‑1982 and its application under section 12(2) C.P.C. was dismissed on 3‑4‑1983, and that Civil Misc. Appeal No.29 of 1983 was also dismissed on 12‑2‑1984, and that two revisions are pending against the aforesaid dismissal of the petitioner's objections and the application under section 12(2) C.P.C.

8. The above petition was filed on 14‑6‑1983 and, therefore, the petitioner could mention the factums that its objection to the execution and application under section 12(2) C.P.C. were dismissed and that they had filed an appeal and a revision. There is nothing on record to indicate that the above omission on the part of the petitioner's Advocate was prompted for some ulterior motive like the one to mislead the Court or to obtain an order which the petitioner would not have been otherwise entitled to. Since in view of the above judgment of the Hon'ble Supreme Court in the case of Pir Khan the above proceeding were of no legal effect, in our view it will not be just and proper to non‑suit the petitioner on the ground of omission on the part of the Advocate of the petitioner to refer to the above facts.

9. Reverting to the third preliminary objection that the petition suffers from laches, it may be observed that it was vehemently contended by Mr. Shamsul Arifin that the instant case was a case of gross negligence and, therefore, delay of about 1‑1/2 years in riling of the above petition cannot be overlooked by this Court. It may be observed that admittedly the petitioner has been riling various legal proceedings for getting the judgment passed by the learned Additional District Judge set aside inasmuch as it has filed objections to the execution, then an application under section 12(2) C.P.C., then an appeal, then a revision and, therefore, the delay in filing of the above petition has taken place. There seems to be no acquiescence on the point of the petitioner. On the contrary it has been manifesting the intention not to accept the judgment passed by the learned Additional District Judge. In the case of Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 it has been held by the Hon'ble Supreme Court recently that the Court should not dismiss a petition simpliciter on the ground of laches, but is required to examine the case on merits as well. It has been further held that there is absolutely no justification to equate laches with statutory bar of limitation. We have examined the case on merits and for the reasons referred to hereinbelow we are of the view that the order/judgment passed by the learned Additional District Judge is such which cannot be sustained in law. The question whether a petition should be dismissed on the ground of laches or not, depends on the facts of each case. The delay of few months in a given case may be fatal, but the delay of few years, if reasonably explained, may be overlooked while entertaining a constitutional petition. We are inclined to hold that the instant case is not such a case where we should dismiss the petition on the ground of laches.

10. Mr. Shamsul Arifin has referred to the case of Mohsan Khan and another v. Chief Settlement Commissioner West Pakistan, Lahore and others reported in 1969 SCMR 306, in which the Hon'ble Supreme. Court, while declining leave against the judgment of the erstwhile High Court of West Pakistan, Lahore passed in a letters patent appeal observed that "it is true that mere delay is not by itself a sufficient ground for non‑suiting a party in a proceeding of this nature but where the delay is accompanied by such circumstances as indicate a clear negligence on the part of the applicant to pursue his remedy with due diligence or conscious acquiescence in the adverse order made against him, then that would be a very good ground for denying this extraordinary remedy." The above case is distinguishable for the reasons already referred to hereinabove.

11. We may now take up the question, whether the contention of Mr. Abdul Hafeez, Lakho, learned A.G., that the reference under section 18 of the Act was barred by time, has any merits. In this regard, he has pointed out the respondent No.1 accepted the payment of the amount of compensation in or about April, 1978, whereas the request for making a reference was made by him on 30‑8‑1979. It has therefore been contended by Mr.Abdul Hafeez Lakho that the above reference was barred by time as clause (a) of sub‑section (2) of section 18 of the Act provides six weeks time from the date of the Collector's award for making a request for reference.

12. On the other hand Mr. Shamsul Arifin has submitted that once a reference was made, the learned Additional District Judge could not have declined the same on the ground of limitation. Reliance has been placed by him on the case of Government of West Pakistan (Now Government of N.‑W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmad Ali Jan and others PLD 1981 SC 516 in which the Hon'ble Supreme Court has held that "designated Court empowered to act with a reference made to it under section 18 of the Act and not otherwise and that while exercising its jurisdiction it cannot go behind reference made to it and hold the same having been illegally made for reason of the Collector having had no power to do so since the application for making reference made was beyond time." The above judgment of the Hon'ble Supreme Court seems to be a complete answer to the above submission of Mr. Abdul Hafeez Lakho.

13. This leads to the last question whether the instant case is a case where this Court should press into service its constitutional jurisdiction, it may be observed that Mr. Abdul Hafeez Lakho, learned A.‑G. has vehemently contended that the order/judgment passed by the learned Additional District Judge is perverse arid in excess of jurisdiction inasmuch as the respondent No.] had himself claimed compensation at the rate of Rs.1.50 per sq.ft. and therefore, the learned Additional District Judge could not have increased the above rate by 100% by awarding at the rate of Rs.3 per sq.ft. In furtherance of his above submission he has referred to the case of (1) Muhammad Sharif v. Afsar Textile Mills Ltd. and another reported in 1985 SCMR 1181 and (2) Pakistan through Secretary, Ministry of Defence, Rawalpindi and another v. Nizakat Shah and 7 others, reported in 1987 CLC 1844. In the above first case, the Hon'ble Supreme Court, while dealing with a case under the Land Acquisition Act, held that "pleadings are a foundation for grounds on which an objection was taken to award while seeking a judicial determination under section 18 of the Act and that such pleading in effect alone becomes a matter referred under section 18 of the Act and the Court has no power to determine or consider any thing beyond that." In the second case a Division Bench of the Peshawar High Court, while dealing with a case of compensation under the Land Acquisition Act has held that "the claimant should fully present his case before Collector because it would be his pleadings to which he would remain confined till decision of Collector and that he is precluded from making out fresh case either by way of supplementary claim to compensation or otherwise at the stage of judicial determination. It has been held that "the Court has no power to determine or consider any thing beyond pleadings."

14. We are inclined to hold that a claimant cannot make a claim for compensation for the property acquired more than what he had claimed before the Collector/Land Acquisition Officer and that the learned District Judge will ; be acting in ‑excess of jurisdiction, if he grants compensation more than what was claimed by the claimant before the Collector/Land Acquisition Officer. In the instant case it is an admitted position that respondent No.l had claimed compensation at the rate of Rs.1.50 per sq.ft. before the Assistant Commissioner/Land Acquisition Officer. In this view of the matter the learned Additional District Judge could not have increased the amount of compensation beyond the rate of Rs.1.50 per sq. ft. and therefore, the impugned order of the learned Additional District Judge granting the compensation in excess of Rs.1.50 per sq.ft. is in excess of jurisdiction. We would, therefore, allow the above petition and declare that the impugned order/judgment of the learned Additional District Judge dated 5‑1‑1982 to the extent of granting any amount in excess of Rs.1.50 per sq.ft. is without jurisdiction and therefore, being without lawful authority and of no legal effect. The respondent No.l would be entitled to receive compensation at the rate of Rs.1.50 per sq.ft. and not at the rate of Rs.3 per sq.ft. Before parting with the above discussion, we may observe that the case was reserved for judgment on 25‑5‑1989 Mr. Shamsul Arifin on 28‑5‑1989 filed a statement pointing out that the Assistant Commissioner had not granted compensation at the rate of Rs.1.50 per sq.ft. We had issued notice to the learned counsel for the parties for 31‑5‑1989 for hearing on the above aspect. After hearing them on 31‑5‑1989, we reserved the case again for judgment. A.A./G‑130/K Petition accepted.