P L D 1978 Peshawar 3 (PLP)

Said Umar Shah has moved this revision petition, feeling aggrieved by the order dated 31-5-1973, of the District Judge, Mardan-whereby the learned Judge on acceptance of appeal by Hasham Khan defendant against the judgment and decree of the learned Senior Civil Judge, Mardan dated 31-10..1971, granting a declaration to plaintiff that he had become the owner of half of Khans No. 96 situated in Kiyara Tohsil Swabi, on account of time barred mortgage and as such was entitled to Rs. 1,382 the amount of compensation paid to Said Umar Shah by Tarbela Dam authorities, directed that the plaint be returned to the plaintiff for presentation to the proper forum, as the jurisdiction of the civil Court was barred under the Land Acquisition Act. In this respect reliance was placed by the learned District Judge on 141 I C 674 and a decision of this Court dated 14-8-1972 in Said Akbar v. Umattullah Jan etc. C. R. No. 66 of 1969.

2. It has been submitted on behalf of the petitioner that the view of the matter taken by the learned District Judge is in conflict with Bago v. Roshan Beg (A I R 1926 Lab. 321) and that the unreported judgment of this Court will also not be conclusive, for on that very that date that very Judge fn Muhammad Ibrahim etc. v. Shah Muhammad etc. S. A. O. No. 17 of IV69 appears to be of the view that a suit for declaration as to ownership alongwith the refund of the compensation amount payable under the Land Acquisition Ast, was maintainable in a civil Court. The learned counsel for the petitioner placed reliance on Ma0ul Ahmed Majhi alias Makbul Ahmed Chowdhury v. Abdul Jalil Chowdhary (P L D 1965 Dacca 402) and A I R 1926 Lah.

321. On the other hand, the learned counsel for the respondents submits that the judgment of the learned Single Judge in C. R. No. 66 of 1969, referred to several authorities, one being Privy Council and the other being from the Supreme Court of Pakistan and the petitioners being persons interested as defined in the Lead Acquisition Act, they were bound to pray for a reference under section 18, even if they had not been shows as persons interested and served as such in the proceedings before the Collector.

3. On going through the judgment of the learned Single Judge in C. R. No. 66 of 1969, what I find is this that in para. No. 5 thereof. It has been observed that the admitted position before his Lordship was "that the respondents withdrew their share of the compensation amount from the Collector without any protest and further that they did not file any application before the Collector for seeking reference to the District Judge under section 18 of the Act." It was further observed by his Lordship that In these circumstances the suit of the respondents for the recovery of part of the compensation amount from the petitioner would not lie in the civil Court because they had failed to avail themselves of the various remedial provisions of the Act. After all it is well established that if by an act of the Legislature a special jurisdiction is created which provides for a special remedy then such jurisdiction would be exclusive and civil Courts would have no jurisdiction to adjudicate upon any matter for which provision has been made in the special enactment, Zaffarul Ahsan v. Republic of Pakistan P L D 1960 S C 113.

4. It appears to me that the legal position has been, indeed, too broadly stated by the learned Single Judge and that in, Zaffar-ul Ahsen v. The Republic of Pakistan the dictum on the point of jurisdiction was that if a statute provides that an order made by an authority acting under it shall not be called in question in any Court it was necessary to establish that the conditions laid down in the statute were satisfied and therefore, the ouster was complete. Be that as it may, the fact remains that the present case is clearly distinguish able. The plaintiff petitioner was not allocated any share of the compensation by the Collector; he did not draw any amount; and it is conceded that he was not served with any notice by the Collector under section 9 of the Land Acquisition Act.

5. It is true that section 18 of the Land Acquisition Act, gives right to a person interested who has not accepted the award to move a written application to the Collector for a portion of the amount of compensation or determination of the person entitled to compensation but It will be difficult for me to persuade myself to agree to the interpretation that the words "in other cases" in the beginning of clause (b) of the proviso to subsection (2! of the Act also bar the remedy o1 a person who was never taken to be as person interested by the Collector and whose claim had, therefore not been adjudicated upon by him. The aforesaid words are suscept to the only interpretation that a person who had raised a claim before the Collector but his claim did not get a favourable consideration, can come to the Court within 6 weeks of the receipt of notice under section 12, subsection (2) of the Act, or within six months from the date of the Collector's award in case no notice was served, assuming always the person had lodged an objection or was considered to be an interested person by the Collector in the proceedings. If the intention of the Legislature was that person whose case was not considered by the Collector at any stage; could not seek redress of their grievance except through an objection under section 18 or under section 30 of the Land Acquisition Act there was no point in adding third proviso to subsection (2) of section 31 of the Act which reads: - Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensa tion awarded under this Act, to pay the same to the person lawfully entitled thereto to ensure that there is no prejudice to an action by a person who might be lawfully entitled thereto. The predecessor of the Land Acquisition Act, 1894, the provisions whereof en this point are in para materia was considered by their Lordships of the Privy Council in I L R 7 P C 338 and the head note which reads as follows: In proceedings under the Land Acquisition Act (X of 1870), sections 38 and 39 the persons entitled to take land compulsorily, deal only with those who are in possession of it, or who are ostensibly its owners. It may happen that the real owner, being an infant, or a person other wise under the disability does not appear, and is not dealt with in the first instance. Thane is, therefore, a proviso in section 40, to the effect that nothing contained in that or the preceding sections shall affect the liability of any person who may receive the whole, or any part of any compensation awarded under the Act to pay the some to the person lawfully entitled thereto. This applies only to persons whose rights have not been dealt with in adjudication in pursuance of sections 38, 39 and 40 3 and does not permit a person whose claim has been disposed of in the manner pointed out in the Act, to have that claim re-opened, and again heard, in another suit, is indeed illuminating. In A I R 1922 Cal. 4, the view taken was that it would not be reasonable to hold that the Legislature having provided a special remedy in the Land Acquisition Act, intended is make it optional with a party to apply for a reference under section 18 as to institute a suit in the ordinary civil Court. But it must be mentioned that that was a case where a person had been served with a notice under section 9 and as such he was bound to apply for a reference under section

18. The view of their Lordships of the Calcutta High Court follows the Privy Council authority and it could not be in conflict with it. In 141 I C

674. There is a case where the person aggrieved from the award was a party to the apportionment proceedings and it was, therefore, held that he could not re-open the question by a regular suit, relying on the third proviso to subsection (2) of section

31. In A I R 1933 Oudh 100 also the person who had brought a suit had been served with a notice under section 9 and he had received compensation without protest. His failure to move a reference under section 18 was, therefore, considered to be fatal to his suit. In the view of the matter that I take I am supported by A I R 1926 Lah. 321 and P L D 1965 Dacca

402. I will accept this petition and B setting aside the order of the District Judge, remand the case to him for disposal on merits. The parties are directed to appear before him on 6th of July 1977. Costs shall follow the event. S.A.H Appeal dismissed.