2017 PLP 145 (CLC)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the Court arises out of the judgment of the High Court dated 29.01.2014, whereby the appeal filed by appellant (deceased), herein, has been dismissed.

2. The facts briefly stated are that the appellant filed a declaratory suit in the Court of Senior Civil Judge in respect of land measuring 50 kanals 7, marla bearing Khewat No.24 (old), 19 (new) situate at village Singot, Tehsil Mirpur. The plaintiff-appellant averred that she and proforma-respondents Nos.69 and 73 are legal heirs of Mst. Hussain Bibi, widow of Sefee who was the legal owner of 1/2 share in the land in dispute. The plaintiff further stated that due to being effectee of the Mangla Dam raising project, a compensation of Rs.200,000/-was granted in the name of her husband. At the time of receiving the compensation, her husband came to know that the land of the plaintiff is being acquired for upraising of Mangla Dam Raising Project. The plaintiff further alleged that she approached the Revenue Authorities and inquired about the matter where she came to know that the defendants Nos.1 to 63 with the collusion of defendants Nos.64 to 68 illegally and without any justification got transferred the land of the mother of the plaintiff and pro forma-respondents Nos.69 to 73 in their names. During the proceedings in the Court, the defendants moved an application under Order VII, Rule 11, C.P.C. for rejection of the plaint. After hearing the parties, while accepting the application the suit was dismissed by the trial Court vide judgment and decree dated 21.07.2007. The appellant filed an appeal before the District Judge, Camp Dadyal which was made over to the Additional District Judge, Camp Dadyal. The learned Additional District Judge Dadyal, after hearing the parties dismissed the appeal however, after modifying the judgment and decree of Senior Civil Judge the plaint was rejected. The second appeal filed before the High Court was also dismissed vide impugned judgment and decree dated 29.01.2014, hence this appeal by leave of the Court.

3. Mian Sultan Mehmood, Advocate, the learned counsel for the appellant, after narration of necessary facts submitted that all the Courts below have failed to apply the judicial mind in making proper appreciation of the statutory provisions of sections 18 and 30 of the Land Acquisition Act, 1894. In this case, the civil suit was filed on 9.4.2007 before issuance of award of the disputed land, whereas the award regarding some portion of the disputed land was issued on 17.5.2007. The trial Court has dismissed the suit merely on the ground that as the remedy is provided under sections 18 and 30 of the Land Acquisition Act, therefore, the suit is incompetent. Whereas the learned Additional District Judge has upheld the judgment with the modification of dismissal of suit by substitution of rejection of the plaint. Ultimately, through the impugned judgment, the High Court has also upheld the rejection order of the plaint. He submitted that the conclusion drawn is misconceived and against law, hence, the impugned judgment is not sustainable.

4. M/s. Muhammad Rafique Dar, Ch. M. Suleman and Arshad Mehmood Mallick, Advocates, the learned counsel for the respondents unanimously opposed the appeal on the ground that the judgment is quite consistent with the statutory provision of law and the principles of administration of justice. As the major portion of the disputed land has been acquired and the appellant has also filed a reference against the award, thus, in this state of affairs, civil suit was not competent and the plaint has rightly been rejected by operation of Order VII, Rule 11 of the Code of Civil Procedure.

5. We have considered the arguments advanced at bar on behalf of the counsel for the parties and also examined the record. As in this case, the sole legal proposition requiring resolution is the maintainability of suit. According to the admitted facts, the appellant filed a declaratory suit with the following prayer:

6. In this suit, they have also arrayed the officials of revenue department as well as Collector Land Acquisition in the line of defendants. The averments of the plaint and the prayer clause reproduced hereinabove, speak that some complex and complicated factual and legal proposition including fraud, tampering, misrepresentation etc. are involved in the civil suit. The Courts below have rejected the plaint merely on the assumption that as the award has been issued, hence, civil suit is not competent. For proper appreciation, it will be useful to reproduce here the statutory provisions of sections 18 and 30 of the Land Acquisition Act on the strength of which the plaint has been rejected. Section 18 of the Land Acquisition Act, reads as follows: "

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. (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) The Collector shall forward a reference to the Court within a period of 30 days from receipt of the application under subsection (1) unless the Collector rejects the application within aforesaid period on any of the grounds provided by the Act." A bare reading of Section 18 of the Land Acquisition Act, speaks that it will come into operation after issuance of award and not before that. Section 30 of the Land Acquisition Act reads as under;- "

30. Dispute as to apportionment.

When the amount of compensation has been settled under section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the person to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court." A plain reading of the above statutory provisions of the special law, clearly speaks that the legislature has categorically mentioned the stage at which the Collector has to refer the matter of apportionment of the amount of compensation to the Court. Under the statutory provision, such stage reaches when the Collector Land Acquisition assesses the amount of compensation under the provisions of section 11 of the Land Acquisition Act. Section 11 of the Land Acquisition Act speaks that the Collector will fix the date for inquiry in pursuance to the notice given under section 9 of the Land Acquisition Act. 6.(sic) A perusal of award reveals that in this case, the date of inquiry according to the notice issued under sections 9 and 10 was issued on 14th May, 2007 as mentioned in para 8 of the award. Thus, it is clear that before the stage of determination of the compensation under section 11 of the Land Acquisition Act, civil suit was already subjudice before the trial Court. Thus, according to the statutory provisions, although a civil suit is not expressly barred in all matters but despite this if implied bar is deemed applicable, even then the provisions of section 30 will attract only when the stage of inquiry for determination of compensation by the Collector under section 11 of the Land Acquisition Act reaches and not before that. Whereas in the instant case, the suit was already pending before coming in operation of the proceedings under section 11 of the Land Acquisition Act. Same like the provision of Section 18 of the Land Acquisition Act will operate prospectively from the issuance of award.

7. In this case, as it has already been mentioned hereinabove, that the suit was filed on 9.4.2007 whereas the stage of inquiry under section 11 of the Land Acquisition Act was fixed on 14.5.2007, thus, in view of the above stated dates, in our considered view, the provisions of sections 18 and 30 of the Land Acquisition Act, 1894 are not attracted.

8. The Courts below have failed to make proper appreciation of the statutory provisions in the light of the peculiar facts of this case which resulted into drawing of wrong conclusion. In this state of affairs, we are constrained to accept this appeal, set-aside all the judgments and decrees of the Courts below and remand the case to the trial Court for proceedings according to law and fresh decision of same on merits. The appeal stands accepted in the terms indicated above. No order as to costs. ZC/45/SC(AJ&K) Case remanded.