2017 PLP 14 (YLRN)

ZAFAR AHMED RAJPUT, J.

Through instant petition, the petitioner seeks declaration to the effect that the applications sent by the Deputy Commissioner, Karachi East to the Referee Court, after six years, by way of Civil Reference No.1 of 1986 were belatedly made and/or practically abandoned, and the Reference is improper, illegal and not in accordance with law.

2. Briefly stated, the facts of the case are that on the request of the petitioner i.e. Port Qasim Authority a vast area of land in four Dehs; namely, Pipri, Bakran, Gangiaro and Rehri was acquired for public purposes from the private owners i.e. Respondents Nos. 3 to 252 under Land Acquisition Act, 1894 (the Act) pursuant to Notification dated 14.11.1977, issued by the respondent No.1, i.e. Deputy Commissioner, Karachi East under section 4 of the Act. Thereafter, a further Notification under section 6 of the Act was issued by the Commissioner, Karachi on 18.06.1979 and the notices under sections 9 and 10 of the Act were also issued to the land owners, who filed their statements of claims and; thereafter, the Assistant Commissioner Land Acquisition Officer, Karachi East announced the award on 18.02.1980. Being aggrieved and dis-satisfied with the award, the private respondents Nos. 3 to 252 filed applications under section 18 of the Act, on various dates starting from 23.07.1980 to 28.03.1983, before the respondent No.1 for referring the matter for determination of the Court with regard to compensation awarded, hence, the respondent No. 1 filed Civil Reference No.1 of 1986 before the Referee Court, vide letter dated 20.04.1986. The petitioner, while appearing in the said reference, raised a preliminary objection regarding maintainability of the reference on the ground of limitation and also filed instant Constitutional petition, claiming therein to have been seriously prejudiced due to the entertainment of the reference by the Referee Court, referred by the respondent No.1, after about six years and two months of the announcement of the award. It is also the case of the petitioner that no other efficacious remedy against the said action of respondent No.1 is available, except to invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to seek declaration that the said reference was improper, illegal and not in accordance with law.

3. It is important to note that the respondents Nos. 3 to 29, 34 to 85 and 87 to 115 had filed applications under section 18 of the Act on various dates starting from 23.07.1980 to 10.08.1980, which is within six months of the making award, while the respondents Nos. 30 to 33, 86 and 116 to 252 filed their applications on the dates starting from 18.08.1980 to 28.03.1983 i.e. after the expiry of six months period.

4. On 11.01.2000 this petition was disposed of by this Court with the observation that the point raised in the petition are to be decided by the Referee Court. Against the said order CPLA No.130-K of 2000 was filed by the petitioner and the Hon'ble Supreme Court of Pakistan, vide order dated 26.07.2000, while observing that the Referee Court cannot decide the question of limitation, as held in the case of Government of West Pakistan, through Collector, Peshawar v. Arbab Haji Ahmed Ali Jan and another (PLD 1981 SC 516) and Government of West Pakistan (Now N.W.F.P.) v. Asmatun Nisa and 6 others and Ghulam Siddique and 3 others v. Government of Pakistan (Now N.W.F.P) and 4 others (PLD 1983 SC 109) remanded the case to this Court for decision.

5. Mr. Abdul Razaque Advocate, learned counsel for the petitioner, has submitted that the private respondents Nos.3 to 252/owners of land had participated in the acquisition proceedings and had received the compensation under the award and; thereafter, some of them filed applications under section 18 of the Act within 6 months of the date of making award and the others filed their applications after the expiry of said period; as such, the applications filed after the expiry of six months were not maintainable under the law being time barred; therefore, the respondent No.1 should have rejected those applications which were time barred. As regard the applications filed within six months from the date of award is concerned, the learned counsel has submitted that it was the duty of the private respondents to have inquired about their applications for reference to the Referee Court within reasonable time and should not have let their applications unattended for more than six years, and by not pursuing the same, the said private respondents may be deemed to have abandoned those applications. He has further submitted that there is no justification for the respondent No.1 for forwarding the applications to the Referee Court by way of reference for enhancement of the compensation after six years of the announcement of award. He has also submitted that the reference filed by the respondent No.1 after six years is tainted with impropriety and illegality. He, has; therefore, submitted that sending of the applications by the respondent No.1 to Referee Court is liable to be declared as improper and illegal. In support of his contention, the learned counsel has relied upon the, cases of (1) Ghulam Muhammad v. Government of West Pakistan (PLD 1967 SC 191) (2) Mian Atta Ullah v. Lahore Development Authority Tribunal and 5 others (1996 CLC 1943) and (3) Ata Muhammad and others v. Assistant Commissioner (General), Bahawalpur and another (PLD 1961 Baghdad-ul-Jadid 69).

6. M/s. G.N. Qureshi, Advocate and Sunil Ram Tilreja, A.A.G have appeared on behalf of the official respondents Nos.1, 1-A and

2. They have vehemently refuted the arguments advanced by the learned counsel for the petitioner and maintained that the respondent No. 1 has the jurisdiction to file the references on the applications of the persons aggrieved by the award. Admitting the fact that the respondents Nos. 30 to 33, 86 and 116 to 252 filed their applications under Section 18 of the Act, they have submitted that while reading Section 18 of the Act, the provisions of subsection (2)(a) and (b) (ibid) are also to be taken into consideration and the limitation provided in the law is only directory and not mandatory; hence, the applications of the said respondents cannot be dismissed on the ground of limitation, as the Deputy Commissioner has the authority under the law to ignore such delay, if any. In this regard they have placed reliance on the case of The Collector, Mardan and 2 others v. Mst. Taj Bibi and 14 others (PLD 1972 Peshawar 197). They have further maintained that Section 18 of the Act provides filing of application by the person, who has not accepted the award to Collector for referring the matter for the determination of the Court within six months from the date of award and not for the Collector to refer the matter for determination of the Court and; therefore, with how much of delay the Collector subsequently makes a reference to the Court, is altogether irrelevant for the private landowners/affectees, and once the application is filed and the Collector holds it to be within time and makes a reference to the Referee Court, the question of limitation becomes redundant. In this regard, the learned counsel have relied upon the decision given in the case of Province of Sindh through Collector of District Dadu and others v. Ramzan and others (PLD 2004 SC 512).

7. We have heard the learned counsel at considerable length and have perused the record so also the decisions relied upon by them.

8. Before proceeding any further, we deem it appropriate to reproduce herein below section 18 of the Act: "

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 or the amount of costs allowed. (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 the Collector's award; (b) in other cases, 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." (3)

9. The questions requiring determination by this Court are:- i. Whether the limitation provided under section 18 of the Act for filing an application before the Collector for referring the matter to the Referee Court is directory in nature? ii. Whether the delay of six years and six months in making a reference to the Referee Court by the Collector makes the reference abandoned and improper?

10. Section 18 of the Act entitles a person interested, who has not accepted the award to make an application in writing to the Collector praying that the matter may be referred by the latter for the determination of the Court. The proviso to this Section fixes the period of limitation within which such an application shall be made. Clause (a) of the proviso provides six weeks for filing such application where the person concerned was present or was represented before the Collector at the time when the award was made. Clause (b) deals with other cases and it is under this Clause that the period of six weeks is provided from the receipt of the notice from the Collector under section 12, subsection (2) and the period of six months is provided from the date of the Collector's award, whichever period shall first expire. The language of this proviso makes it ample clear that the farthest point of time before which such a person must file an application to the Collector for reference to the Court is six months from the date of the making of the award.

11. It may be observed that the Collector has the jurisdiction to decide the question whether an application made under section 18 of the Act was time barred or not. However, there is no provision in the Act empowering the Collector to condone the delay in the presentation of such application either suo motu or on application of the party under section 5 of the Limitation Act, 1908, as the Limitation Act, 1908 has not been made applicable to the Land Acquisition Act, which is a special Law and prescribes its own period of limitation for a Reference Application. Section 29 of the Limitation Act, 1908 provides that:- (1)

(2) Where any special or local law prescribes for any suit, appeal or application period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law: (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. (3)

(4)

It is, thus clear from subsection (2) of section 29, Limitation Act that section 5 does not apply to the Land Acquisition Act, which is a special Law, therefore, the Collector has no choice, when an application is presented to him after six months of the making award, but to dismiss the same. So far the contention of learned counsel for the official respondents are concerned that the provision of section 18 of the Act with regard to the period provided for making an application is directory and not mandatory, it is an accepted principle of law that if a Statute requires something to be done and also prescribes the mode for doing it, the requirement of law can be fulfilled only by doing the act in the manner prescribed. In this regard, it has been observed by a Division Bench of Lahore High Court in the case of Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others (PLD 1970 Lahore 321) that:- "

13. There is a string of rulings dilating upon the question whether a provision with regard to the performance of a particular act within a certain limit of time is obligatory or directory. A study of these decisions, however, leads one to the irresistible conclusion that Courts have, as far as possible, refrained from laying down any general principle with regard to the directory or obligatory nature of period of time so fixed. It was observed by Lord Campbell in Liverpool Borough Bank v. Turner (1): "No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed." One has, therefore, to determine each case on its own facts and for that purpose has to look into the subject-matter of the statute with a view to determine the importance of the provisions of law that has been disregarded and finding out the relation of that provision to the general object intended to be secured by the Act. If the object can be secured even without compliance with such provision, it could be falsely dubbed as directory. If that be not so, the provision would be imperative or obligatory and non-compliance with it would result in nullification or vitiation of the act which affects the rights of a citizen." We, therefore, hold that the limitation provided under section 18 of the Act for filing an application before the Collector for referring the matter to the Referee Court is not directory but mandatory in nature.

12. So far the second question is concerned, it does not require any detailed deliberation as the same is covered by the case of Province of Sindh v. Ramzan and others (supra), wherein the Collector referred the matter to Referee Court after the passage of seven years and the Hon'ble Supreme Court of Pakistan has held that "Section 18 of the Act is concerned with the filing of the objection petitions within a specified time, before the Collector and not before the Court. With how much of delay the Collector subsequently makes a reference to the Court, is altogether irrelevant for the landowner affectees. Once the objections are within time and once the Collector holds them to be within time and makes a reference to the Referee Court, the question of limitation becomes redundant and should not be gone into by the Referee Court".

13. Consequently, we allow this petition partly by holding as under:- (i) That the subject reference sent by the respondent No.1 to the Referee Court to the extent of time barred applications filed under section 18 of the Act by the respondent Nos.30 to 33, 86 and 116 to 252 is invalid. (ii) That the subject reference sent by the respondent No.1 to the Referee Court after about six years of making the award on the applications of respondents Nos. 3 to 29, 34 to 85 and 87 to 115, which were within time, is valid. The petition, therefore, stands disposed of in above terms. ZC/P-7/Sindh Order accordingly.