1990 PLP 98 (SCMR)

‑‑‑ Practice and procedure‑‑‑When a judgment of the Supreme Court had been passed by a Bench of three Judges of the Supreme Court and the review petition directed against said judgment was dismissed by a Bench of five Judges, if it is found that the rule laid down in the said judgment required to he varied, dissented from or overruled, a larger Bench of seven Judges could alone be in a position to do so.‑‑[Practice and procedure]. Yahya Bakhtiar, Attorney‑General for Pakistan, Asif Hussain Siddiqi, Advocate Supreme Court, M. Sardar Khan, Advocate Supreme Court, Fida Mohammad Khan, Advocate Supreme Court, Moulvi Sirajul Haq, Advocate Supreme Court, Samad Mahmood, Advocate Supreme Court, Abdul Hakeem Khan, Senior Advocate Supreme Court, Haji M. Rafiq Awan, Advocate Supreme Court, Qazi Abdur Rashid, Advocate Supreme Court, Maqbool Elahi Malik, Advocate Supreme Court, Khan Imtiaz Muhammad Khan, Advocate‑on‑Record, Nur Ahmad Khan, Advocate‑on‑Record, Muhammad Afzal Siddiqi, Advocate -on‑Record, Manzoor Elahi, Advocate‑on‑Record, Ch. Akhtar Ali, Advocate‑on- Record, Khawaja Mushtaq Ahmad, Advocate‑on‑Record, Ch. Gliulam Dastgir, Advocate‑on‑Record and Karam Elahi Bhatti, Advocate‑on‑Record for Appellants. Moulvi Sirajul Haq, Advocate Supreme Court, Mian Muhammad Ajmal, Additional Advocate‑General, N.‑W.F.P., Sardar Khan, Advocate Supreme Court, Saifur Rehman, Deputy Attorney‑General, Abdul Hakeem Khan, Advocate Supreme Court, Nur Ahmad Khan, Advocate‑on‑Record, Ch. Akhtar Ali, Advocate‑on‑Record, Khan Imtiaz Muhammad Khan, Advocate‑on‑Record and Manzoor Elahi, Advocate‑on‑Record for Respondents. Date of hearing: 16th October, 1989. NASIM HASAN SHAH, J.‑‑A preliminary objection has been raised in the above matters to the effect that the appellants have no locus standi to prefer these appeals and thus the appeals riled by them are not maintainable. In this connection, reliance is placed on two judgments of this Court namely Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad and others (P L D 1987 S C 485) and Behram Khan and 54 others v. Military Estate Officer and 2 others (1988 S C M R 1160). Herein it was 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 substitutive order, whereby the award of the Land Acquisition Collector is substituted by the order of the Civil Court which order then becomes the award. Since, by virtue of subsection (2) of section 50 of the Land Acquisition Act the award made 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 Military Estate Officer and the Central Government (who were appellants in the case) who did not have any such right expressly conferred on them, did not have any locus standi to file an appeal". Accordingly, they were found strangers to the proceedings despite the 1 fact that the land was being acquired for their benefit. Mr Yahya Bakhtiar, learned Attorney‑General for Pakistan, in support of these appeals has contended that in these two judgments certain provisions of the Constitution of Pakistan 1973 have been overlooked namely Article 152 which, inter alia, provides that "the Federation may, if it deems necessary to acquire any land situate in a Province for any purpose connected with a matter with respect to which Parliament has power to make laws, require the Province to acquire the land on behalf and at the expense of the Federation"; Article 149 which empowers the Federal Government in exercise of its executive authority to give all necessary directions to a Province and Article 173 according to which the executive authority of the Federation and of a Province extends, subject to any Act of the appropriate Legislature to the purchase or acquisition of property on behalf of the Federal Government. It is further submitted that the land in these cases was required for the benefit of and on behalf of the Federal Government: they were, therefore, not strangers to the proceedings and had the right to file cross‑objections against the award of the Collector as well as appeals against the order of the Civil Court passed on reference. We consider that this aspect of the case does indeed require further consideration but as the judgments noted above have been passed by a Bench of three Judges and the review petition directed against them was dismissed by a Bench of 5 Judges if it is found that the rule laid down in these judgment requires to be varied, dissented from or overruled, a larger Bench of 7 Judges could alone be in a position to do so. These cases may, therefore, be put up for appropriate orders before the Hon'ble Chief Justice. M.B.A./W.76/S. Order accordingly