2017 PLP 113 (CLCN)

CH. MUHAMMAD IBRAHIM ZIA, J.

This judgment shall dispose of the titled appeal by leave of the Court which has been filed against the judgment of the High Court dated 12.02.2015 whereby the appeal filed by the appellants, herein, has been dismissed.

2. In brief, the facts of the case are that the appellants, herein, filed a reference application before the Collector, Mangla Dam Raising Project, on 06.05.2009 against the award No. 43/2006 dated 26.11.2006. It was stated that their father purchased the land measuring 3 kanal 17 marla 4-1/2 sarsahi, from Khewat No. 8 situate in Mozia Kunjri Mahal through sale-deed dated 19.02.1968 and a mutation No. 221 was attested. The said land was acquired through above award and the compensation of the land measuring 1 kanal 16 marla 1-1/2 sarsahi has been wrongly assessed in favour of respondents. The matter was referred to the Reference Judge. The learned Reference Judge, through judgment and decree dated 22.02.2010 dismissed the reference application being time barred. The appellants filed an appeal in the High Court which has been dismissed through impugned judgment, hence this appeal by leave of the Court.

3. Mr. Muhammad Younas Arvi, Advocate, the learned counsel for the appellants after narration of facts submitted that both the Courts below fell in error of law. It is almost settled that once a reference is sent by the Collector Land Acquisition to the reference Judge, the referee Court is not competent to agitate the question of limitation because it is the sole authority of the Collector. Both the Courts below on the question of limitation have drawn incorrect conclusion. The appellants have proved their version through evidence. The application for producing additional evidence has also been improperly rejected. Same like, the findings of reference Judge on the question of power of attorney are also against law. The apex Court of Pakistan has enunciated principle of law that in reference cases neither party nor the Court can travel beyond the contents of the reference. Thus, once the reference is treated by the Collector as validly filed within prescribed period, the proposition of limitation cannot be reopened by the reference Court. He further argued that in the substantial matters the technicalities should be avoided and the justice should be administered on merits. He referred to the case reported as Government of West Pakistan v. Arbab Haji Ahmed and others [PLD 1981 SC 516].

4. Conversely, Mr. Muhammad Khalil Ghazi, Advocate, the learned counsel for the respondent strongly opposed the appeal while defending the impugned judgments. He argued that according to the provisions of section 18 of the Land Acquisition Act, 1894, the limitation prescribed for filing reference is 6 months, whereas, in this case the reference has been filed after almost 2 years' period. The appellants received the compensation without any protest within 3 months' time of the award. It is settled principle of law that the negligent party does not deserve for relief. The matter of compensation is substantial and not mere technical matter. If it is deemed technical then there will be no end to litigation. The appellants have failed to prove any legal right or interest involved in the case. The litigation is futile and initiated for ulterior motives, therefore, this appeal is not maintainable.

5. We have considered the arguments of learned counsel for the parties and examined the record made available. The first proposition involved is of limitation for filing the reference. The law on the subject is very much clear. Section 18 of the Land Acquisition Act, 1894 reads as follows: "

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 person 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 Collector's award; (b) in other cases, within six weeks of the notice from the Collector under section 12, subsection (2), or within six months from the date of Collector's award, whichever period shall first expire. (c) the Collector shall forward a reference to the Court within a period of 30 days from receipt of the application under subsection (1) unless the Collector rejects the application within aforesaid period on any of the grounds provided by the Act." 6 The argument of learned counsel for the appellant that once a reference is referred by the Collector Land Acquisition the question of limitation cannot be agitated, is without any substance. Neither there is any statutory provision supporting the consistent with the spirit and scheme of law. While dilating upon the identical proposition, this Court in a case titled Shah Sawar v. Collector Land Acquisition and others (Civil P.L.A. No. 139/2014 decided on 18.6.2015) held as follows:- "5...According to the enforced law i.e the Land Acquisition Act and the rules made thereunder, limitation for filing of reference against award has been provided. Under the provision of clauses (a) and (b) of section 18 of the Land Acquisition Act, limitation has been provided for filing of reference against award i.e (1) when the award is made in presence of the person who presented the reference before the Collector, within six weeks from the date of the Collector's award; (2) otherwise 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. This section has been amended in 2007 by adding subsection (3) which has made compulsory for the Collector to refer the matter to Reference Court within a period of thirty days from receipt of application for reference. Same like by insertion of new section 28-A, period of 180 days has been provided for decision of reference by the Reference Court. Under these statutory provisions, there appears no bar that reference Judge cannot resolve the question of limitation. Thus, the intention of legislature regarding expeditious disposal of the matter of acquisition of property is very much clear. The argument of learned counsel for the petitioner in this regard appears to be misconceived. He has relied on a judgment which has already been overruled by this Court in the case reported as Government of Pakistan and another v. Syed Ghulam Haider Shah and 5 others [2007 SCR 175], wherein it has been observed as under: '

9. The facts of this case are completely different to the facts of the cases which culminated into finding recorded by the Supreme Court of Pakistan or Supreme Court of Azad Kashmir. In the case before us the Collector Land Acquisition categorically held that the reference filed by the appellants is time barred and with this note/report forwarded the reference to the Reference Court which in turn dismissed the reference on the ground that it has been filed beyond limitation provided by proviso to section

18. Therefore, we hold that the reference filed by the Collector was rightly dismissed by the Reference Court which has the jurisdiction to consider whether a valid reference has been filed or not. The judgment of this Court reported as Fazal Karim v. Azad Govt. [PLD 1998 SC(AJ&K) 26] is overruled by holding that the designated Court has jurisdiction to determine as to whether the reference filed before it is a valid reference or not and can dismiss the same on the ground that it has been filed with the Collector after expiry of the statutory period of limitation and as far the powers of the Collector are concerned, he cannot waive the objection in respect of limitation. The Court and Tribunal are bound to determine whether a valid application has been filed before them and whether they have jurisdiction to hear the lis'." This principle has not only been enunciated by this Court in the case reported as Government of Pakistan and others v. Syed Ghulam Haider Shah and others [2007 SCR 175] but also followed in the case reported as Azad Govt. and others v. Riaz Ahmed and others [2007 SCR 468] and in Shah Sawar's case supra. In the light of hereinabove enunciated principle of law, it can be safely concluded that the reference Judge is competent to resolve the proposition of Limitation and mere Collector's act of referring the matter to the reference Judge does not debar the reference Court from deciding the question of limitation.

7. It is obviously clear that in this case the award was issued on 26.11.2006. The appellant's own produced document, Register of dispensation of compensation (annexed herewith as Annexure "G"), clearly proves that they received the compensation on 21.02.2007. Thus, the learned reference Judge has rightly observed that not earlier but at least on 21.02.2007 they were in full knowledge of the award but despite this they have not bothered to file the reference till 28.10.2008. Thus, the findings recorded by the reference Judge on the point of limitation are quite in accordance with law.

8. Although, some other propositions have also been resolved by the trial Court but as it has been conclusively decided that the reference was hopelessly time barred, thus, the deliberation on other propositions is just academic discussion. The judgments of the Courts below are legal one calling for no interference. Therefore, finding no force this appeal stands dismissed. No order as to costs. ZC/28/SC(AJ&K) Appeal dismissed.