1993 PLP 181 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to examine whether the decision in Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad and others PLD 1987 SC 485 was correctly invoked for deciding the Regular Second Appeal filed by the Provincial Government before the High Court by its judgment dated 7‑6‑1988.

2. The land in dispute located in Multaq was acquired under the Land Acquisition Act for WAPDA. The Land Acquisition Collector, Multan gave an Award. The Provincial Government objected to the award and filed a Reference application under subsection (3) of section 18 of the Punjab Land Acquisition Act. It was adjudicated upon by the District Court on 5‑5‑1964 whereby the Reference of the Provincial Government for reduction of the Award price was rejected and the compensation awarded by the Collector remained intact. The Provincial Government filed an appeal in the High Court under section 54 of the Land Acquisition Act. It came up for disposal and the High Court declined to entertain it declaring it to be incompetent observing as hereunder:‑ "It is pertinent to note that the WAPDA, for whose sake, the land was acquired, neither objected to the award by filing a reference nor filed any appeal against the judgment of the learned District Judge. Admittedly, the amount of compensation for the land acquired is to be paid by the WAPDA, which is independent from the Province of West Pakistan (now Punjab). We are of the view that the Punjab Province cannot maintain this appeal, as it is not, in any way, affected either by the award made or by the impugned judgment. In support of this view; the rule of law laid down in Pir Khan v. Military Estate Officer, Abbottabad and others PLD 1987 SC 485 may be referred to. The appeal is, therefore, incompetent and is dismissed with no order as to cost as the land owners/respondents have not entered appearance to contest this appeal." 3.The judgment given in Pir Khan's case PLD 1987 SC 485 related to the North‑West Frontier Province where the local amendments made in the Land Acquisition Act had created a materially different position at different stages. In the Punjab Province the history of law with regard to land acquisition has been reproduced in Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193. It was pointed out therein that in the Province of Punjab, by Act XII of 1954, subsection (3) to section 18 was added and new section 22‑A was introduced in the Land Acquisition Act whereby the right to file a Reference under section 18 and to file Cross‑Objections under section 22‑A was conferred on tire Provincial Government, or a local authority or a company for which the land was acquired. By President's Act IV of 1957, the local authority and the company were deprived of the right to file a Reference or Cross Objections leaving in the field only 'the Provincial Government. Finally, by Ordinance XLDC of 1969 in the whole of West Pakistan subsection (3) of section 18 and section 22‑A were so amended as to leave the power of Reference with the Provincial Government.

4. A party which had been given the right of appeal had come before the High Court in appeal. A party not given the right of appeal had not come in appeal. In this context to say that the appeal preferred by the Provincial Government was incompetent could not be legally proper because notwithstanding the fact that the land was required by WAPDA, the dissatisfaction with the award was of the Provincial Government. A party competent to file and agitate against the award had in fact agitated against it. There was no defect in appeal as such.

5. Pir Khan's case PLD 1987 SC 485 could be relevant in the context only to the extent that a party having a right of Reference has necessarily a right of appeal. In the appeal filed by the Provincial Government before the High Court both the conditions were satisfied. Hence, the appeal was competent.

6. We accept the appeal, set aside the judgment of the High Court and remand the case to the High Court for a decision on merits if the Provincial 3overnment continues to be interested in pursuing it. No order is made as to costs. A.A./W‑105/S???????????????????????????????????????????????????????????????????????????????????? Case remanded.