2005 PLP 168 (MLD)

2. Briefly the facts are that the land was acquired by Overseas Pakistanis Foundation in the villages of Ladhiot, Herdogher and Pinc Malkan, Tehsil and District Islamabad. The Land Acquisition Collector announced the Award vide LAC's 527/2(26)-DRA dated 9-6-1999. The present dispute is regarding land bearing Khasra No.551 of village Ladhiot Measuring 74 Kanals 15 Marlas which is Shamlat land. Syed Abdul Qadir Jillani (petitioner in W.P. No.2348 of 2003) earlier filed W.P. No. 1274 of 2003 wherein he claimed that he was a co-sharer in the said Khasra No. vide order dated 20-5-2003, the aforesaid writ petition was disposed of in the following terms:-- "In view of the above, let a copy of this petition be sent to the respondent with a direction that the Land Acquisition Collector, shall proceed strictly in accordance with law particularly section 30 of the Land Acquisition Act, 1894 before he decides to give any compensation to the persons whose claim according to the petitioner is not legal. The Land Acquisition Collector shall decide the matter within 30 days and till the decision he shall not make any payment to the third party claimants. The writ petition is disposed of in the above terms. " In pursuance of the said order, the matter was taken up by the Assistant Commissioner Saddar/District Collector, Islamabad who proceeded to decide the matter upon the following issues:-- "

1. If Land Acquisition Collector is competent to hear the case?

2. If the name of petitioner (Syed Abdul Qadir Jillani) was rightfully incorporated in "Qabzal Wasul" in Award announced for?

3. Who is eligible for receiving payment of compensation?"

3. The petitioner in the instant writ petition namely Mir Fazal son of Najab Khan and L.Rs. of Muhammad Yousaf namely Fazal Jan and others moved before the A.C. for being impleaded as a party on the ground that they were the owners in Khasra No.551 village Ladhiot and that their entitlement be determined before the distribution of compensation to any third party.

4. The learned Land Acquisition Collector/Assistant Commissioner (Saddar), Islamabad was of the view that as the matter was remitted to him by this Court in W.P. No. 1274 of 2003 which was filed by Syed Abdul Qadir Jillani only, the said applicants could not join, the proceedings unless they seek permission of joinder from a competent Court.

5. After refusing to join the said applicants as parties before him, the learned LAC proceeded to pass the impugned order dated 1-7-2003 whereby he rejected the claim to ownership of Abdul Qadir Jillani and decided to Award the entire compensation to Malik Mazhar Hussain respondent No. 4 herein.

6. While in the present writ petition and W.P. No.1759 of 2003, the claim of the petitioners respectively is that Mir Fazal, L.Rs. of Muhammad Yousaf and Muhammad Ashiq were the owners in the disputed Khasra No. and each claimed entitlement to its compensation and made a grievance that they should have been heard by the LAC who should have then proceeded under the provisions of section 30 of the Land Acquisition Act, 1894, the petitioner in W.P. No.2348 of 2003 namely Abdul Qadir Jillani has challenged the order dated 1-7-2003 on the ground that the LAC had misconstrued and mis-appreciated the evidence on the record and erred in rejecting his claim to ownership. It is also urged that the impugned order is a result of collusion between Malik Mazhar Hussain respondent No.4 and the revenue officials.

7. Syed Asghar Hussain Sabzwari, Advocate has put in appearance on behalf of respondent No.4 with the contention that after the case was remitted to the LAC vide order dated. 20-5-2003 in W. P. No. 1274 of 2003, the LAC examined the Revenue Record dispassionately and after examining the claims of Syed Abdul Qadir Jillani qua the claim of Malik Mazhar Hussain had rightly awarded the compensation to the latter:

8. Arguments have been heard and record perused.

9. The point for consideration that has arisen for determination in the, instant writ petition as also in the connected writ petitions is the scope of section 30 of the Land Acquisition Act, 1894. While the petitioners contend that it was incumbent upon the LAC under section 30 ibid to have referred the matter to the Court for adjudicating the respective claims of all the claimant parties, it is urged on behalf of respondent No.4 that the scope of inquiry/decision by the LAC after the case was remitted to it was limited between Abdul Qadir Jillani writ petitioner in W.P. No.1274 of 2003 as also in W.P. No.2348 of 2003 and respondent No.4 namely Malik Mazhar Hussain and that the LAC acted in accordance with law and the record before him to reject the claim upon merits of Abdul Qadir Jillani and accepted that of respondent No.4. In support of the contention that the learned LAC ought to have referred the matter to the Court, learned counsel for the petitioner has made reference to the cases of Syed Ashraf Shah and others v. Muzaffar Khan and others (1994 CLC 2408) and Mst. Khalida Bibi v. Mst. Daryai Khunam and others (1994 MLD 2339) to contend that the word "dispute" as used in the context of section 30 of the Land Acquisition Act, 1894 has been used in a wide and not literal sense implying therein any controversy as to title etc. It is submitted that the Court of reference has to determine the shares/entitlement in accordance with record regardless whether each one of the claimants was a party before it or not. On the other hand, learned counsel for respondent No.4 has placed reliance upon the case of Shahbaz and another v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 5 others (PLD 1992 Peshawar 69) to submit that there is no statutory compulsion imposed upon the Collector under section 30 ibid to refer the matter to Court for decision.

10. As the matter relates to a correct interpretation of section 30 of the Land Acquisition Act, 1894 and the learned counsel for the parties have been heard at length upon this proposition, the present writ petitions are being disposed of as regular cases.

11. From the scope and object of the Land Acquisition Act, 1894, it is manifest that apart from the mode of acquisition of a property, the Act provides a -scheme containing machinery for taking measurements of the property; assessment of its value and payment of compensation to the persons interested. It also postulates a scheme providing adequate remedy for adjudication of the rights of the aggrieved persons in accordance with the well known principles of administration of justice. In case of, any dispute as to the measurement of the property, its value or apportionment, the Act provides a remedy through a reference by the Collector to the Civil Court for settlement of the dispute. The scheme of law under the Act is therefore, complete and exhaustive. At this juncture, it is relevant to note that under section 3(b) of the Act, the expression person interested includes all persons claiming and interested in any compensation to be made on account of the acquisition of the land under this Act.

12. It needs no gainsaying that the proceedings of acquisition commenced with the issuance of a notification under section 4 ibid. This notification is merely an introductory measure and is tentative in nature. Its purpose is to carry on preliminary investigation with a view to finding out after necessary survey whether land was suited for the purpose for' which it w as sought to be acquired. In other words, this notification becomes the foundation for subsequent proceedings for, acquisition.

13. According to the general scheme of the Land Acquisition Act, after a declaration is made that the purpose for which the land is required is indeed a public purpose, the Collector is then required to cause notice to all persons interested in the land and to state the nature of their respective claims in the land and particulars of their claims to compensation. Although, such a notice is mandatory, there may be several cases where a bona fide claimant fails to make such a claim. Unless this failure is a result of negligence or want of good faith, a person should not be deprived of putting forth his claim even after the announcement of the Award. A duty is cast on the Court to apply its mind to the question whether the failure of the claimants to make a claim was with or without sufficient cause. It is only fair that the matter should be properly considered and decided.

14. This would take us to the nature of inquiry and the subsequent Award by the Collector as envisaged under section 11 of the Act. Although, the inquiry contemplates the determination of the actual area of the land, the compensation which in the opinion of the LAC should be allowed for the land and the apportionment of the said compensation among all the persons known or believed to be interested in the land, or of whom or of whose claims; he has information whether or not they have appeared before him, the nature of such proceedings are by and large administrative. The Collector while making an Award under section 11 ibid acts merely as an Officer of the Government making inquiries in order to determine what money the Government would offer to the persons whose land is acquired. He neither acts as a Tribunal nor a Judicial Officer and indeed his inquiry or ward cannot be conclusive of the rights of claimants who had failed to prefer their claims unde4 section 9 ibid.

15. It shall now be appropriate to examine section 30 of the Act in the afore-cited back drop. Section 30 is reproduced as under:-- "

30. Dispute as to apportionment.

When the amount of compensation has been settled under section 11, if any dispute arises as to the apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court." The broad features of this provisions of law is that wherever a dispute arises as to the method of apportionment of compensation or as to the persons to whom the same or any part thereof is payable, the subject-.matter of reference under this section primarily relates to a dispute which, is necessarily one of title. Where it appears to the Collector under section 30 that a dispute regarding title has to be decided, he may refer such dispute for the decision of the Court. This would apply to a person who was a party to the Award as well as to a person who was not previously before him. Whenever such a person appears and makes a claim in respect of the acquired land, the Collector shall be justified in making a reference of the dispute to the decision of the Court If a reference is made by the Collector, a person interested may also apply to the Court to be joined as a party to the reference made by a Collector.

16. The underlying principle of such procedure is to strike a balance between the right of Government compulsorily acquiring the land and right of expropriated owners to claim adequate compensation for the same. Where the Collector has made an Award under section 11 but has not made the payment, a new person, not previously before him appears and makes a claim, the Collector may make a reference under section 30 of the Act. Reference is made to the cases of Pir Muhammad. Salim Gilani v. S. Muhammad Ashraf Shah Gilani (PLD 1963 AJ&K 66) and The State of Bihar v. Dr. G.H. Grant and another (AIR 1959 Patna 343).

17. There is also no cavil with the proposition that the word "dispute", used in the context of section 30 is to be construed in a wide and not literal sense and shall imply any controversy as to title.

18. The impugned order dated 1-7, 2003 of the Land Acquisition Collector when viewed in the light of the above discussion does not appear to be legally sound. In the first place, the LAC should have allowed the petitioner Mir Fazal, the L.Rs. of Muhammad Yousaf and Muhammad Ashiq petitioner to be joined as parties to the proceedings and considered their claim to compensation in respect of the disputed Khasra No.551 along with the claims of Syed Abdul Qadir Jillani and Malik Mazhar Hussain The Collector should have then made a reference under section 30 to the Court for a complete adjudication of the title of; the respective parties. The LAC erred in not hearing the aforementioned petitioners and also erred in taking upon himself the responsibility of deciding the question of title amongst the two contesting claimants who were allowed to appear before him. Neither of these courses were permissible.

19. Resultantly, all these writ petitions are allowed, the order dated 1-7-2003 is set aside and the matter is remitted to the Land Acquisition Collector to firstly join the petitioner Mir Fazal, the L.Rs. of Muhammad Yousaf and Muhammad Ashiq to the proceedings before him and subsequently to make a reference under section 30 of the Land Acquisition Act, 1894 to the Court where all the claimants could agitate the basis of their title. It is noticed that the spirit of the order passed by this Court on 20-5-2003 in Writ Petition No.1274 of 2003, was not appreciated by the LAC in its true perspective with reference to the applicability of section 30 of Land Acquisition Act. S.A.K./M-625/L Petition allowed.