P L D 1970 Lahore 377 (PLP)

(i) Land in Revenue Estate of Haji Pura situate within the Municipal Limits of Sialkot . . . . . Rs. 200 P. M. (ii) Land in revenue estate of Haji Pura situated outside the Municipal Limits of Sialkot . . . . . Rs. 175 P. M. (iii) Land in revenue estate of Fatehgarh . . . . . Rs.

50. The land of Mian Muhammad Hussain fell within the second ,category, enumerated above.

3. The award of the Land Acquisition Collector (hereinafter referred to Collector) was announced on 23‑7‑63 i.e. after the death of Mian Muhammad Hussain. However, the award was accepted by the present petitioners, who are his heirs and this fact is specifically mentioned in para. 9 of the grounds for the petition. The said para. is in the following words "That the petitioners who were to receive the compensation being the successor‑in‑interest of late Mian Muhammad Hussain, Advocate, accepted the award as such without raising any objection under section 18 of the Land Acquisition Act." Respondent No. I (The Province of the West Pakistan) filed a petition under section 18 (3) of the Land Acquisition Act, raising objections to the award and requiring the Collector to refer the clatter for determination of the Court. The matter was accord ingly referred to the Administrative Civil Judge, Sialkot (herein after called the Court). It needs to be mentioned that the challenge to the award was made on the ground that the com pensation or the price of the land per marla was excessive and that interest etc. could not be awarded to the owners of the lands. All the owners of the lands, whose lands had been acquired, were impleaded as respondents to this petition, and in the afore mentioned objection application submitted by the respondent Provincial Government, in the array of respondents the late Mian Muhammad Hussain was shown as a respondent, at serial No. 35 and No. 48 (the repetition is admittedly a clerical mistake) instead of the present petitioners. On the process‑server's reporting back to the Court that Mian Muhammad Hussain, Advocate, has died, the respondent Provincial Government submitted an application under Order XXII, rules 4 and 9 to bring the present petitioners on the record as respondents on 21‑7‑

64. The petitioners submitted a reply to this petition raising several objections which gave rise to six preliminary issues of which issues Nos. 3, 5 and 6 are alone relevant and reproduced hereunder: (3) Has this petition abated. If so, to what extent? O. P. P. (4) Whether the respondent No. 48 died before the announce ment of award? O. P. R. (5) On proof of foregoing issue, is this application maintain able? O. P. P.

4. The learned Court found that the petition under section 18(3) of the Act had abated to the extent of the rights of the predecessor‑in‑interest of the present petitioners in so far as the said predecessor‑in‑interest had died before the announcement of the award. However, in regard to the issue as to what was the effect of this on the Provincial Government's petition, it was held that the proceedings before the Collector were not an absolute nullity but only irregular. Accordingly the award was "remanded to the Collector, Sialkot, for retrial from the date of the death of respondent No. 48".

5. Learned counsel for the petitioners has contended that the view expressed by the learned Court that with the death of respondent No. 48 proceedings before the Collector became irregular is erroneous. It is submitted that the acquisition pro ceedings had in fact been completed in the lifetime of the said respondent and the only change, that was brought about by his death, was that the compensation of the land instead of being received by him was to be taken by the present petitioners. It is further urged that the learned Court did not have the power to remand the award for fresh enquiry, as the jurisdiction of the Court under sections 18 to 28 of the Act is a special jurisdiction empowering the Court to enquire into the objection made to the Collector's award and then to make an award itself and that he cannot remand the matter to the Collector for fresh enquiry. In this connection reliance is placed on Revenue Division Officer etc. v. Yalia Raja of Chirakkal Kovilagam (A I R 1944 Mad. 539). 1t is further added in this connection that the jurisdiction of the Civil Court is confined to a consideration of the objection mentioned in the application for reference. Since the only objection taken related to the amount of compensation, the Court had no power to determine or consider anything beyond it and that it should have confined itself to the matter referred to it. Attention has been invited to Pramatha Nalh Mullick Bahadur v. Secretary of State (A I R 1930 P C 64). It is further argued that the respondent No. 48 died on 28‑12‑62 whereas the petition under section 18(3) of the Act was filed by the Provincial Government on 15‑1‑64, long after his death. It is suggested that the question of abatement arises only if a party to a proceedings dies during the pendency of the proceedings,. whereas in the instant case a dead person was impleaded as a respondent and as such this was not a case of abatement. It is finally argued that the date of the Collector's award being 23‑7‑63 and the Provincial Government's application to bring the present petitioners on the record having been moved on 21‑7‑64 the petition was time‑barred in so far as the period prescribed for having the objection application referred to a civil Court is only six months.

6. Learned counsel on behalf of the Provincial Government has in his reply argued that the award of the Collector becomes final only if notified to the persons interested as are either not. present personally or by their representatives, when the award is made. This requirement of the law contained in section 12(2) of the Act, is mandatory and that an award is not made until it is announced to the persons interested. Reliance in this behalf is placed on a Division Bench ruling of the Punjab Chief Court reported as Macdonald v. Secretary of State for India‑in‑Council (4 I C 914) It is contended, therefore, that the award dated 23‑7‑63 was not valid and the reference would also be invalid and the Court could go into the question of the validity of the reference. Atten tion in this behalf is also invited to Abdul Sattar etc. v. Mst. Hamida Bibi (P L D 1950 Lah. 370) and The Land Acquisition Collector, Rawalpindi v. Lieut.‑General Wajid Ali Khan Burki (P L D 1960 Lah. 469).

7. In his final reply the learned counsel for the petitioners argues that the provisions of section 12(2) of the Act are directory and not mandatory and the mere absence of notice of the award to all concerned does not render the award as extinct. Reliance for this submission is placed on Ata Muhammad and others v. Assistant Commissioner (General), Bahawalpur etc. (P L D 1961 B J 69). He further submits that the present petitioners have accepted the award and do not challenge its correctness and since the provisions of the Act regarding reference to the Court under section 18 are of a remedial character, they should be interpreted so as to advance the remedy. In this case the petitioners, it is urged, are not aggrieved by the non‑issuance of the notice to them especially as they accept the award. It is, therefore, submitted that the setting aside of the award on the ground of non‑issuance of the notice would be prejudicial to their interest and this result not desired by them and is a course to which they are strongly opposed.

8. The controversy in essence falls, therefore, in a narrow compass, namely whether the award was rendered invalid by the non‑issuance of the notice by the Collector to the heirs of respondent No. 48? The principle relied upon by the learned Court, founded on the principle enunciated in Allah Rakha v. Nur Hussain (P L D 1966 Lah. 960), namely, that a decree passed after the death of a party is not an absolute nullity but is only erroneous and liable to be set aside and it can be rectified by setting aside the ‑proceedings taken after the death of the parties and by taking proceedings afresh in the presence of his legal representatives, is based on the consideration that prejudice caused to the legal representatives by not being before the Court during the proceedings should be avoided. In this case the present petitioners are vociferously claiming that they have not been prejudiced by non‑issuance of the notice of the making of the award and that they gladly accept its terms. A remand is therefore, not only not to their benefit but a course which is stoutly resisted by them. Accordingly the rule laid down in P L D 1961 B J 69 that in the absence of prejudice to the parties concerned, the non‑issuance of the notice of the making of the award would not invalidate the award seems to be apposite to the facts and circumstances of this case. The order of remand passed by the learned Court, therefore, is erroneous and requires to be set aside. This is apart from the question whether such an order of remand could at all have been made by the Court, on which point I do not express any final opinion, as it is not now necessary to decide this question.

9. The next question is whether the petition under section 18 (3) of the Act has become time‑barred so far as the petitioners are concerned. In this connection learned counsel for the petitioners relied upon P L D 1961 B J 69 already cited and certain observations contained in Ghulam Muhammad v. Government of West Pakistan (P L D 1967 S C 191) for his plea that since the period prescribed for making the objection application requiring the Collector to refer the matter for determination of the Court under section 18(2 (6) is six months, and as the said period cannot be extended, the reference so far as it relates to the present peti tioners is barred by time. This contention cannot be accepted. It will be observed that this argument militates against the earlier contention raised by the petitioners. According to them the finding of the learned Court to remand the matter on the: footing that the award of the Collector was invalid as it was made in respect of a person who was already dead and that, therefore, it was necessary that the award proceedings should be: taken afresh after impleading the legal representatives of Mian Muhammad Hussain, was not correct because the petitioners automatically stopped into the shoes of their predecessor‑in interest and that the defect pointed out for invalidating the award, namely, the non joinder of his legal representatives and non -issuance of any notice to them of the making of the award was not such a defect as would invalidate the award itself, in the absence of any prejudice. However, the present contention of the petitioners in essence is that the application of the respondent Government requiring the reference of the award to the Court wherein the petitioners' predecessor‑in‑interest is shown as respondent is bad and that the petition under section 18(3)1 preferred by the said respondent‑Government should be taken, as against them, as having been made for the first time on 21‑7‑641 i.e., when the application for impleading them as parties was submitted and not on 15‑1‑1964 when the original objections petition was filed. Such an inconsistent stand can hardly be permitted to prevail.

10. Under section 18 (1) of the Act it is provided that any person interested who has not accepted the award may be written application to the Collector, require that the matter be referred by the Collector for the determination of the Court. The particulars of the parties are not required to be furnished under this provision of law. No doubt under section 19 the Collector while making the reference, shall state for the information of the Court, inter alfa, the names of the persons whom he has reason to think interested in the land and notice of the objection is then to be served on all persons interested in the objection. The Court is thereafter to proceed to decide the objection, taking into consideration the relevant factors laid down in the law. It seems, therefore, that if the award is held not to have been invalidated by the absence of service of notices on the petitioners, the objection application filed against the said award by the Provincial Government, under section 18 of the Act, on 15‑1‑64 must be held to have been made within time. Thereafter it is for the Court to bring before itself all the interested parties. The proceedings before the Court in connection with a reference under section 18 of the Act are not proceedings in a suit, attracting the penal provisions of the Civil Procedure vide Muhammad Saeed v. Govern ment of West Pakistan (P L D 1968 Lah. 1176) and hence if all the interested persons have not been cited in the information conveyed by the Collector under section 19 of the Act, this fact atone will not affect the situation if the award has been challenged in time. The sub mission that the law of limitation has to be applied irrespective of equities of the matter and that the period of six months prescribed by the law cannot at all be extended, is a submission that not only does not arise in the present case, but also over looks from consideration that the petitioners have accepted the award and that the mention of the name of their father in the array of respondents is thus only a mistake and that the respon dent‑Government has indeed put in an objection with respect to the compensation awarded to them under the impugned award, within time. It is also noteworthy that the objection that the application for impleading the present petitioners is barred by time, which was the subject‑matter of issue No. 2 before the trial Court, was give! up before the learned trial Court and is not, therefore, admissible. The result is that the trial Court erred in disallowing the application of the respondent‑Government to bring the present petitioners on the record.

11. The upshot is that the order of remand passed by the Court dated 23‑11‑1967 is found to be unsound in law and is hereby set aside. The Court is directed to allow the present petitioners to be impleaded as respondents and is further directed to proceed to dispose of the reference in accordance with law after hearing all the interested persons, as expeditiously as it is possible. Since the success is divided, the parties are left to bear their own costs. S. A. H. Order accordingly.