2003 PLP 1482 (CLC)

SYED JAMSHED ALI, J.

This judgment will dispose of Intra -Court Appeals Nos.241 of 1994, 242 of 1994, 243 of 1994, 244 of 1994, 245 of 1994, 246 of 1994, 247 of 1994, 248 of 1994, 249 of 1994, 250 of 1994 and 251 of 1994 as question of law and fact arising therein are common.

2. The essential relevant facts are noted hereunder.

3. Land measuring 74 Kanals, 4 Marlas in Mauza Niaz Baig was acquired by the Lahore Development Authority under the Punjab Acquisition of Land (Housing) Act (No.VIII) of 1973, for an Area Development Scheme i.e. Johar Town. Award was rendered on 9-10-1982 and the names of the appellants figured therein as the awardees. On 23-12-1982, the contesting respondents filed a suit for declaration claiming that they were owners in possession of the disputed land. Their suit was decreed on 22-11-1986. The appellants filed an appeal, which was dismissed by the learned First Appellate Court vide judgment and decree dated 2-7-1988. They then approached this Court in Civil Revision No.2030/D of 1988, which was dismissed vide judgment dated 22-10-1989. The appellants then filed an application under section 12(2) of the Code of Civil Procedure, which was dismissed, as withdrawn on 6-11-1990. The appellants approached the Hon'ble Supreme Court in Civil Petition No.64/L of 1991 to assail not only the order dated 6-11-1990 but also the " judgment rendered in the civil revision. The said petition was dismissed vide order dated 14-4-1991. Meanwhile, on 13-8-1988, respondents/decree-holders moved the learned Commissioner by way of an appeal under section 14 of Punjab Act No. VIII of 1973 for the necessary amendment in the award on the basis of the Civil Court decree. The said appeal was allowed vide order dated 25-6-1990 with the direction to amend the award dated 9-10-1982 in accordance with the decree of the Civil Court. It was further held that the contesting respondents were entitled to compensation for the land acquired by Lahore Development Authority as against the appellants.

4. The appellants approached this Court in Writ Petitions Nos.781 of 1990, 2402, 2403, 2368, 2390, 2423, 2435, 2380, 2427, 2366 and 2355 of 1991. On 2-11-1992, the learned counsel for the appellants as well as the learned counsel for contesting respondents agreed to appoint Mr. Atizaz Ahsan, to decide the dispute between the parties, Accordingly, it was so ordered and Writ Petition No.7819 of 1990 and other connected writ petitions were disposed of. On 28-7-1993, Mr. Aitzaz Ahsan, rendered his decision according to which the claim of the appellants was rejected, it was held that the appellants were not entitled to any plot of land, however, a sum of Rs.10,000 was directed to be paid by the private respondents to the appellants.

5. The appellants then filed an application under sections 30, 33, 11(2) and 12(2) of the Arbitration Act for setting aside the award of the Arbitrator and for the appointment of another suitable Arbitrator. This application was dismissed vide order dated 21-2-1994, impugned in this appeal. The main consideration impugned order is based is that "the question of title to the acquired land stood finally and conclusively decided in the earlier round of litigation up to the level of Supreme Court, therefore, it was held that in the circumstances it could not be said that the Arbitrator had mis-conducted himself".

6. The learned counsel for the appellants contends that the Arbitration Act does not apply to the proceedings of a Constitutional petition, therefore, the order of the learned Single Judge referring the matter to the Arbitrator, the proceedings conducted by him, the award rendered and the impugned order of this Court are ab initio bereft of lawful authority. Reliance was strenuously placed on Abdul Qayyum Khan v. Government of Punjab through Secretary, Local Government and Rural Development Department and another (PLD 1995 Lahore 205). He submits that the writ petitions filed by the appellants are, therefore, pending adjudication. He next contends that the learned Commissioner, by directing amendment in the award, acted without jurisdiction because the appeal was filed on 13-8-1988, when Punjab Act No.VIII of 1973 stood repealed by Punjab Act No.XII of 1985. He further contends that the impugned order of the learned Commissioner was not even protected by the saving provision of section 3 of Act (XII of 1985). He maintains that the declaratory decree notwithstanding, the impugned order of the learned Commissioner, being without lawful authority, the appellants were entitled to compensation in the form of developed plots because according to the award the land in dispute was owned by the appellants. He further contended that the Limitation Act was not applicable to an appeal filed under section 14 of Punjab Act No.VIII of 1973. He also attacked the decree of the Civil Court on the ground that the title was claimed by the contesting respondents on the basis of adverse possession.

7. On the other hand, Mr. Umar Ata Bandial, Advocate, contended that the rule laid down in the case of Abdul Qayyum Khan (supra) was not attracted because in this case the arbitration was without the intervention of the Court. According to him, the parties agreed for the decision of the dispute by Mr. Aitzaz Ahsan end the writ petitions were disposed of. The order of the Court only reflected the arrangement between the parties and with the disposal of the writ petitions, no lis was pending before the Court, to attract filing of an application under sections 30 and 33 of the Arbitration Act before this Court and the remedy of the appellants lay elsewhere. He submits that since applications against the award were not maintainable before this Court, as per the stance of the appellants themselves, the appeal filed under section 39 of the Arbitration Act against the order passed on the said application is not appealable and if it is to be treated as an appeal under the Law Reforms Ordinance, it is not only barred by time but also that it is hit by the bar of proviso to section 3(2) of the Law Reforms Ordinance. He maintains that the matter was referred to Mr. Aitzaz Ahsan with the consent of the parties, who had also expressly agreed to be bound by the decision of Mr. Aitzaz Ahsan. According to him, he acted in the matter as a Referee. He next contends that unless compensation for the acquired land was paid, the proceedings shall be deemed to be pending by virtue of section 3 of Punjab Act No.XII of 1985 and while directing amendment of the award in accordance with the decree passed by the learned Civil Court, it cannot be said that the learned Commissioner acted without lawful authority. He further submits that right of appeal was a vested right and was not taken away by repeal of Punjab Act No.VIII of 1973. Reliance was placed on Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and 4 others PLD 1985 SC

376. He next contended that the title of the respondents to the disputed land stands affirmed up to the Hon'ble Supreme Court and any interference of this Court will bring about an unjust consequence i.e. .to set at naught the judgments rendered in the civil litigation between the parties. According to him it was otherwise a fit case for the exercise of judicial restraint. Reliance was placed on Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Syed Ali Shah v. Abdul Saghir Khan Sherwani PLD 1990 SC

504. He lastly contended that even if it could not be said that Mr. Aitzaz Ahsan acted as Referee, he will be deemed to have acted as a mediator and if the parties elect a special mode of decision of a lis, they cannot turn around to repudiate it.

8. The submissions made by the learned counsel for the parties have been considered and the record perused. In fact the dispute between the parties is as to who is entitled to compensation in the form of developed plots from the Lahore Development Authority. This aspect of the matter was duly considered by the learned trial Court and in para. No.8 of the judgment, following observations were made:-- "

8. It is admitted position among the parties that suit property has now been acquired by L.D.A. It is admitted further by the learned counsel for the parties during course of arguments that L.D.A. has yet to pay the compensation of the suit property to its rightful owners. In the circumstances, seeking of possession by the plaintiff is not plausible. Since the L.D.A. has to pay compensation to the rightful owner of the suit property so a mere declaration of title is sufficient. I think that effect of acquisition does not bar the present suit to be adjudicated between the parties. The suit, as in its present form is maintainable because a mere declaration of title will suffice. After declaration, the rightful owner of the suit property can contact Lahore Development Authority for grant of compensation as per rules of the L.D.A. The defendants have failed to prove this issue and the sane is decided against the defendants.

9. This judgment and decree was maintained not only by the First Appellate Court but also by this Court and ultimately by the Hon'ble Supreme Court. Therefore, on the basis of the aforesaid decree, it is clear that the, contesting respondents/decree-holders alone are entitled to compensation. A perusal of the said judgment further shows that Lahore Development Authority had not paid compensation for the acquired land in the shape of the developed plots and thus, the proceedings under Punjab Act No.VIII of 1973 shall not be deemed to have been concluded within the contemplation of section 3 of Punjab Act No.XII of 1985. Therefore, it could not be said that the order passed by the learned Commissioner impugned, in the writ petitions was without lawful authority. We are of the view that even if the case stricto senso did not fall in the saving clause contained in section 3 of Punjab Act No.XII of 1985, the direction of the Commissioner for amending the award in accordance with the decree of the Civil Court was only a consequential order and the Lahore Development Authority was otherwise bound to act in accordance with determination of the title by the aforesaid decree of the Civil Court. The entire effort of the appellants has been to re-open the controversy and defeat the judgments and decrees passed in civil litigation between the parties. Therefore, we are of the view that interference by us will bring about a patiently unjust consequence i.e. that the judgments and decrees passed in the civil litigation are reduced to nullity. For another reason, we are not inclined to exercise our discretion in the matter. The appellants themselves elected a special mode of decision and also undertook that they will be bound by the decision of Mr. Aitzaz Ahsan, although he was described as an Arbitrator but to our mind, in essence, he was appointed as a mediator because while referring the matter to Mr. Aitzaz Ahsan, he was called upon to "decide" the dispute. An Arbitrator only renders an award and does not "decide" the dispute. After the decision was against the appellants, they could not be permitted to resile from their undertaking to be bound by the decision of Mr. Aitzaz Ahsan.

10. The contention of the learned counsel for the appellants that since in the award, compensation was settled in favour of the appellants, they were entitled to it leaving the contesting respondents to recover it from them, has no merit. Undisputedly, in this case, compensation is to be awarded in the shape of developed plots by the Lahore Development Authority. The award was rendered on 9-10-1982 while the contesting respondents filed the suit on 23-12-1982, before the compensation was paid. Thus, a dispute had arisen as to the persons to whom, compensation was payable, and in accordance with section, 30 of the Land Acquisition Act, the Collector was bound to refer such dispute to the decision of the Court. Apart from the reference contemplated by section 30, aforesaid, according to section 31(1) in case of dispute as to title to receive compensation, the Collector shall deposit the compensation in the Court to which a reference under section 18 would be submitted and, according to the third proviso to section 31 the person who may receive compensation is bound to pay to the person lawfully entitled to it. Both sections 30 and 31 are intended to protect the interest of a rightful owner of the land entitled to compensation. Since in this case compensation had not been paid, only the contesting respondents, by virtue of the decree of the Civil Court in their favour as rightful owners, are entitled to compensation. Therefore, we do not consider it necessary to examine the contentions of the learned counsel for the parties based on the case of Abdul Qayyum Khan (supra).

11. For what has been stated above, we find no force in these appeals, which are, accordingly, dismissed. No orders as to costs. M.H./G-274/L Appeals dismissed.