1994SCMR2091 (PLP)

Mansoor Ahmed Khan, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents (in Civil Appeal No.25 of 1992). Ch. Ejaz Ahmad, Deputy Attorney‑General with Rao Muhammad Yusuf Khan, Advocate‑on‑Record for Appellants (in Civil Appeal No. 266 of 1992). Nemo for Respondents (in Civil Appeal No. 266 of 1992). Ch. Ijaz Ahmad, Dy. Attorney‑General with Muhammad Nawaz Abbasi Assistant Advocate‑General, Punjab and Rao Muhammad Yusuf Khan, Advocate‑on‑Record for Appellants (in Civil Appeal No. 267 of 1992). Muhammad Ismail Qureshi, Advocate Supreme Court and S. Abul Asim Jafferi, Advocate‑ori‑Record for Respondents Nos. l and 2 (in Civil Appeal No. 267 of 1992). Date of hearing: 14th June, 1994. SAEEDUZZAMAN SIDDIQUI, J.‑‑‑In the abovementioned 3 civil appeals a common question of law arises for consideration. We, accordingly, propose to dispose of all these appeals by a consolidated judgment.. Leave was granted in the above noted 3 appeals as follows:‑‑ "Leave to appeal has been sought against the judgment of the High Court dated 11‑11‑1991. The facts of the case are that the land in question was acquired by the Land Acquisition Collector, Rawalpindi, for the use of Rawalpindi Medical College. The Land Acquisition Collector announced the Award on 2‑4‑1984, and the compensation was fixed. The respondents filed objections under section 18 of the Land Acquisition Act, as according to them the compensation was not according to the market value of the land. The learned Referee Judge (Senior Civil Judge, Rawalpindi) disposed of the Reference vide judgment date 13‑12‑1990, and compensation enhanced. The petitioners challenged the judgment of the Senior Civil judge in Appeal before the High Court which was dismissed by the impugned judgment on the ground that appeal at the instance of the Government or the acquiring department, is not competent. Reliance was placed on the cases of (1) Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (1991 SCMR 2193) and (2) Pit Khan through his Legal Heirs v. Military Estate Officer, Abbotabad and others (PLD 1987 SC 485). Learned Assistant Advocate‑General submitted that the appeal by the Provincial Government was competent under the Land Acquisition Act and the judgment of this Court in Iftikhar Hussain Shah's case has not been correctly interpreted by the High Court. Prima facie the contention of the learned Assistant Advocate‑General seems to be correct. Leave to appeal is granted. Stay to continue subject to the condition that the Government shall pay profit at the general average market rate to the respondents' side from the date money become payable, in case the appeal fails. " It is admitted before us that in R.F.A. No. 51 of 1991 filed before the Lahore High Court, Rawalpindi Bench, out of which Civil 'Appeal No.25 of 1992 has arisen, Province of Punjab and Land Acquisition Collector in addition to Principal, Rawalpindi Medical College were the appellants. Similarly, in R.F.A. No. 69 of 1990 filed before the Lahore High Court, Bahawalpur Bench, the appellants were the Land Acquisition Collector, WAPDA Rahimyar Khan and Province of Punjab. However, in R.F.A. No. 19 of 1991 filed before the Lahore High Court, Bahawalpur Bench, out of which Civil Appeal No. 267 of 1992 has arisen, the appellants were only Land Acquisition Collector WAPDA, Lahore and Project Director, G. S.C. WAPDA, Multan. All the abovementioned 3 R.F.As. were dismissed by different Division Benches of Lahore High Court as not maintainable relying on the decision of this Court in the case of Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence and others (1991 SCMR 2193). In the above‑cited case, this Court after taking note of various amendments made in section 18 of the Land Acquisition Act (hereinafter to be referred as 'the Act' only) from time to time held, as follows:‑‑ "

19. There have taken place very many amendments in section 18 of the Act resulting in consequential amendments. How these amendments and their repeal has taken place, and their effect, is very relevant and instructive for the purpose of these proceedings. It was the Province of Punjab which by Act XII of 1954 added subsection (3) to section 18 of the Act in the following words:‑‑ (3) Notwithstanding anything to the contrary contained in section 21, the Provincial Government or a local authority or a company for which land is being acquired may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award, provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for enquiry into and determination of the objection against the Award'." The same Act (Act XII of 1954) also introduced a new section 22A) in the following words:‑‑ "22‑A. Cross‑objection,‑‑‑The Provincial Government or a local authority or a company for which land is being acquired may lodge a cross objection to the objection made by any person interested and the Court may reduce the amount awarded by the Collector if it considers it just and proper." President's Act IV of 1957 modified subsection (3) to section 18 of the Act introduced by the Punjab Act XII of 1954 so as to delete from therein ' or a local authority or a company for which land is being acquired' leaving only the Provincial Government in the field. What was accomplished by President's Act IV of 1957 was repealed by the West Pakistan Act XXVII of 1958. By Ordinance No. XIV of 1968, for the areas of Punjab, subsection (3) to section 18 and section 22‑A were added as hereunder:‑‑ "(3) Notwithstanding anything to the contrary contained in section 21, the Provincial Government may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award: Provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for enquiry into and determination of the objection against the award. 22‑A.Cross‑objection.‑‑‑The Provincial Government or a local authority or a company for which land is being acquired, may lodge a cross objection to the objection made by any person interested and the Court may reduce the amount awarded by the Collector if it considers it just and proper. " Then, West Pakistan Ordinance XLIX of 1969 enacted for the whole of West Pakistan subsection (3) to section 18 followed by an amendment in section 20 and introduced section 22‑A, in the following words:‑‑ "(3) Notwithstanding anything to contrary contained in section 21, the Provincial Government may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award; provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for enquiry into and determination of the objection against the award. In section 20 of the said Act, in clause (c), between the word "Collector" and the full‑stop at the end, the words and commas 'and the Department of Government, local authority or Company, as the case may be, for which land is being acquired" shall be inserted.' 22‑A. Cross‑objection.‑‑‑The Provincial Government, or a local authority or a company for which land is being acquired, may lodge a cross‑objection to the objection made by any person interested and the Court may reduce the amount awarded by the Collector if it considers it just and proper. " A consequential amendment to give effect to the right of the Provincial Ordinance XLIX of 1969. This Ordinance XLIX of 1969 was made into West Pakistan Act III of 1969 and the same was repealed by Ordinance No. VI of 1971. The language used was somewhat unusual as hereunder: ‑‑ "Repeal of W.P. Act, III of 1969.‑‑‑The Land Acquisition (West Pakistan Amendment) Act, 1969, is hereby repealed and shall be deemed never to have been enacted, and the amendments effected thereby in the Land Acquisition Act, 1894 (Act I of 1$94), shall be deemed never to have been effected." In the N.‑W.F.P., Ordinance No. XI of 1972 was enforced which omitted subsection (3) of section 18, mandating the abatement of any pending Reference made by the Provincial Government, and so was an appeal by or on behalf of the Provincial Government pending in any High Court or Supreme Court on a Reference made by the Provincial Government under subsection (3) of section 18 to abate forthwith. It was in 1978 that in the N.‑W.F.P. by Ordinance XVI of 1978 a subsection (4) was added to section 18 in the following words:‑‑ "Notwithstanding anything to the contrary contained in section 21, the Provincial Government may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award: Provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for enquiry and determination of the objection against the award.

20. In the N.‑W.F.P. the right of the Provincial Government and of the Provincial Government alone, apart from the affected land‑owners, has been recognized in the matter of filing a Reference, which right has been denied by express words of section 50(2) of the Act to the local authority or company for whose benefit the acquisition is made. Since 1978, the Province of N.‑W.F.P., a right of Reference and consequently of appeal is available to the Provincial Government as the expression Government in the Provincial Statute would imply a 'Provincial Government' and not the 'Federal Government'. " It is, therefore, quite clear that the right of making a Reference as well as filing of an appeal in so far a Provincial Government is concerned was not affected by the amendments introduced in the Act. We have examined the record of the High Court in Civil Appeals Nos. 25/92 and 266/92 and find that Province of Punjab was very much a party in both these cases namely the R.F.As. filed before the High Court against the judgment given by the Court of .s. Reference under section 18 of the Act. The learned Judges of the High Court, therefore, wrongly dismissed R.F.As. on the ground that the appeals were filed therefore, wrongly dismissed R.F.As. on the ground that the appeals were filed only by Land Acquisition Collector, WAPDA who was not competent to file the above appeals. In doing so, the learned Judges clearly omitted to properly go through the memo. of appeal in which not only the land Acquisition Collector but Province of Punjab were also shown as appellants in the R.F.As. We therefore, allow both these appeals, set aside the impugned judgments in Civil appeals Nos. 25/92 and 266/92 and remand the cases to High Court for decision in accordance with the law. In Civil Appeal No. 267 of 1992, it is admitted by the learned counsel for the Government that in R.F.A. No. 19/91 from which Civil Appeal No.267/92 has arisen, only the Land Acquisition Collector and Project Director, G.S.C., Multan; were appellants. It is, however, contended by the learned counsel for the appellants that although Province of Punjab was not a party, the appeal filed by Land Acquisition Collector, who was one of the appellants before the High Court in the R.F.A., was competent in law. The learned counsel for the appellants invited our attention to the Notification issued by the Government of Punjab on 3‑2‑1987 whereby the Governor of the Province in exercise of his power under section 3(c) of the Act, conferred powers of Collector under the Act on Land Acquisition Collector (G.S.C.) WAPDA, and he was further authorised to exercise these powers within the limits of Province of Punjab subject to the control of Collector(s) of the districts with effect from the date of issue of the Notification. The learned counsel for the appellants also relied on the Government of West Pakistan, Services and General Administration Department Letter No. O&M (1).2/4‑63 dated 19‑8‑1963 whereby the Land Acquisition Officers appointed by the Government in WAPDA were placed directly under the control of Deputy Commissioners concerned ..,both, administratively and judicially and that the office accommodation was also provided within the premises of the office of the Deputy Commissioner. The effect of the 2 Notifications referred to above clearly was that the Land Acquisition Officer, WAPDA was for all practical purposes a Land Acquisition Collector under the provisions of the Act. In the case of Central Government of Pakistan and others v. Suleman Khan and others (PLD 1992 SC 590), after analysing the effect of the case of Pir Khan v. Military Estate Officer (PLD 1987 SC 485) and WAPDA v. Muhammad Farid and others (1990 SCMR 98), this must made the following observations: "In the meanwhile another development has taken place. Several appeals including two Civil Appeals Nos. 242 and 538 of 1990 filed by the Land Acquisition Collector came up for hearing before this Court. They were decided on 24th March, 1992. After analysing the two judgments of this Court in the cases of Pir Khan PLD 1987 SC 485 and Iftikhar Hussain's case 1991 SCMR 2193, the question; as to whether, an appeal filed by the Collector would have met the objection as to the competency was also examined and it was held that the appeal by the Collector would, be‑ competent. Accordingly, two Civil Appeals Nos. 242 and 538 of 1990 were not only considered on merits but also allowed. While doing so, the objection as to the maintainability of the R.F.As before the High Court was not found sustainable." In view of the aforesaid observations in the case of Central Government of Pakistan‑and others v. Suleman Khan (supra), we are of the view that R.F.A. No. 19 of 1991 filed by the Land Acquisition Collector was also competent. We, accordingly, allow Civil Appeal No. 267 of 1992 also, set aside the impugned judgment of High Court and remand the case to High Court for decision of the appeal in accordance with the law. In the circumstances of the cases, there will be no order as to costs. M.B.A./P‑244/S. Case remanded.