' The plea raised in the above appeals is based on principle of merger of order/decree and it is, whether the 'award" passed by the Land Acquisition Officer in terms of section 11 of the Land Acquisition Act (in short the Act) merges in order-passed by the Court rejecting the reference under section 18(3) of the Act. The contention has been raised in the following circumstances.
' By the order, dated 29-3-2003 passed by the learned Additional District Judge, Sanghar dismissed the execution applications filed by the appellants for realization of awarded amount under separate awards passed by the Land Acquisition Officer (B&R), Hyderabad on 10-2-2002 in favour of the appellants. The appellants filed separate execution applications on the analogy that on rejection of reference the "award" passed by Land Acquisition Officer merged in the "order of the Court" rejecting the reference. The order in rejection is a decree, executable by the Court.
2. Since the facts in above appeals are substantially same, I would refer the facts in First Appeal No,30 of 2003. The decision in this appeal would govern the decision of others appeals.
3. Briefly, stated, the facts are that the land of appellants were acquired on the request of respondent No,2 for public purpose. The respondent 1 passed the award No,74, dated 16-2-2000.
The respondents did not accept the award and respondent No,2 filed an application under section 18(3) of the Act in the Court of District Judge, Sanghar but withdrew the same and it was dismissed as withdrawn on 31-5-2003. The reference was repeated under section 18(3) of the Act by the respondent No,1 in the District Court Sanghar, which was assigned to Additional District Judge.
Sanghar as Land Acquisition Case No,3 of 2000, the reference was rejected by the order, dated 29- 9-2001 on the application filed by the appellants under Order 7, rule 11, C.P.C. On the ground that the reference was not competently filed. The review application was also dismissed. The respondents have neither tendered the award amount to the applicants nor have they deposited the same in District Court Sanghar under section 31(2) of the Act.
4. The appellants filed Execution Application No,3 of 2003 before the Additional District Judge, Sanghar. The learned Additional District Judge dismissed the application by order, dated 29-3- 2003, which has been impugned in the above appeals.
5. The learned Additional District Judge dismissed the execution applications with the following observations:-- "I have come to the conclusion that the applicant of this execution application was the defendant in L.A. Suit No,3 of 2002. In that L.A. Suit he preferred an application under Order VII, rule 11, C.P.C. On the ground that plaintiff had no locus standi to file L.A. Suit. Such application was rejected with the observation that the plaintiff had no locus standi/cause of action. To file such suit, which, however, could be filed by the Provincial Government under section 18(3) of the Land Acquisition Act. Except rejecting plaint no relief of (any) kind whatsoever was granted in that order or in the decree followed by said order. But surprisingly, in Column 9 of this execution application, the defendant has mentioned false and fabricated material whin was neither part of order rejecting plaint nor of decree followed by said order. The conduct of defendant also shows that he has come befote this Court with unclean hands. This Court by exercising powers as Executing Court cannot go beyond the decree and order passed in the matter. Even otherwise, there is nothing in the order/decree to execute the same as only the plaint was rejected. Hence the Execution Application merits no consideration and the same is hereby dismissed."
6. Mr. Ghulam Rasool Qureshi, learned counsel for the appellants' submission was that the learned Executing Court has erred in law by ignoring the rule of merger that once the reference is filed and rejected, the award passed by the Land Acquisition Officer merged in the order. The rejection order is a decree under clause (2) of section 2, C.P.C. And was executable by Court for realization of the awarded amount on the principle of merger. Therefore, the dismissal of execution applications is not sustainable in law.
7. The terms "merge" and "merger" have been defined in Corpus Juris Secondum,-Volume 57, at page 1067, as follows:-- "The verb 'to merge' has been defined as meaning to sink or disappear in something else, to be lost to view or absorbed into something else, to become absorbed or extinguished, to be combined or be swa llowed up.
' Merger' is defined generally as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased, an absorption or swallowing up so as to involve a loss of identity and individuality"
' The concept of merger of decree was explained by the Privy Council in Lala Brij Narain v. Kunwar Tejbal Bikram Bahadur 37 I.A. 70 that the trial Court ceases to have jurisdiction to amend the decree when it has been affirmed by the Appellate Court.
' This view has generally been followed in Sub-Continent. Reference in this connection may also be made to:-- "(1) Harilal Dalsukhram Saheba v. Mulchand Asharam AIR 1930 Bom. 225 and (2) Saeed Ahmed v.
Messrs Indo Enamel Works Limited, Lahore PLD 1954 Lah.
490."
The rule of merger was also illustrated, on an exhaustive review of case-law by Kaikaus, J. In his lucid judgment in F.A. Khan v. Government of Pakistan PLD 1964 SC 520 that:-- Once an appeal is filed the matter becomes sub judice and when the Appellate Authority passes an order, the order of the original authority disappears and merges in the order of the Appellate Authority so that there remains in existence only the Appellate order ' The same view was reiterated by the apex Court in Moulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCM R 241 that after ID affirmation of the decree of trial Court, the decree in existence is only that of the Appellate Court.
' In Glaxo Laboratories Limited v. Inspecting Assistant Commissioner of Income Tax and others PLD 1992 SC 549 same view was expressed that on appeal the original order merges in the Appellate order.
8. There is no cavil with the proposition that order on appeal .Merges in the Appellate order.. In order to examine the enforceability of rule of merger in the instant case, it is necessary to examine the nature of the proceedings by the Collector under section 11 of Part I and the proceedings of the Court under section 18 of Pan II of the Act and the character of the awards of the above forums.
The proceedings taken by the Collector are not the judicial proceedings and his award is not a decree, as ruled in Dinshan Italia v. State of Hyderabad AIR 1955 Hyd. 203, whereas the proceedings under section 18 of part II of the Act before Court are not in nature of appeal from the award Special Land Acquisition Officer, Railways v. Rama Rao and another AIR 1974 Karnatak 50. It is a special proceeding and such proceedings are in nature of a suit (Bansi Lal v. Collector of Saharnpur 4 AWM 88).
' In Azra v. Secretary of State ILR 30 Cal. 36 it has been held that:-- "The meaning to be attached to the word 'award' under section 11 and its nature and effect must be arrived at not from the mere use of the said expression in both instances but from the examination of the provision of law relating to the Collector's proceedings culminating in the award. The consideration to which we have referred satisfy us that Collector acts in matter of enquiry and valuation of the land only as an agent of the Government and not as a judicial officer."
9. The legal character of award made by Collector in terms of section 12 of the Act was considered by the Indian Supreme Court in Raja Harish Chandra Raj Singh v. The Deputy Land. Acquisition Officer and another AIR 1961 SC 1500. The observations contained in para. 5 of the report is relevant, which is reproduced as follows:-- ".... It is relevant to bear in mind the legal character of the award4nade by the Collector under section 12. In a sense it is a decision of the Collector reached by him after holding an enquiry as prescribed by the Act. It is a decision, inter alia, in respect of the amount of compensation which should be paid to the person interested in the property acquired; but legally the award cannot be treated as a decision; it is in law an offer or tender of the compensation determined by the Collector to the owner of the property under the acquisition. If the owner accepts the offer no further proceeding is required to be taken; the amount is paid and compensation proceedings are concluded. If, however, the owner does not accept the offer section 18 gives him the statutory right of having the question determined by the Court, and it is the amount of compensation, which the Court may determine that would bind both the owner and the Collector. 'In that case it is on the amount thus, determined judicially that the acquisition proceedings would be concluded. It is because of this nature of the award that the award can be appropriately described as a tender or offer made by the Collector on behalf of the Government to the owner of the property for his acceptance." (emphasis underlined).
10. The form of award by Civil Court and its nature has been given in section 26 of the. Act, which is reproduced as follows:-- "[26. Form of award.--- (1) Every award under this part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of subsection (1) of section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same subsection, together with the grounds of awarding each of the said amounts].
4(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2, clause (2), and section 2, clause (9), respectively, of the Code of Civil Procedure, 1908].
' The perusal of the above provision shows that only the award specifying the amount awarded under subsection (1) of section 23 including the amounts (if any) awarded under each other clauses of the same section with grounds (reasons) of awarding each of the said amounts shall be deemed to be the decree and the statement of grounds of every such award, a judgment within the meaning of section 2 clause (2) and section 2 clause (9) of C.P.C. Respectively.
' Any order passed by Court short of the requirements of subsection (1) of section 26 shall not be deemed to be decree.
11. The ratio deducible from the above case-law can be summarized as follows:--
(1) The proceedings by the Acquisition Officer under section 11 of the Act are not the judicial proceedings but inquiry. Such officer is not a Judicial Officer but an agent of the Government.
(2) The Award passed by the Collector is an offer, tender and not a legal decision.
(3) The proceedings under section 18 before the Civil Court is a special proceeding and such proceedings are in nature of a suit.
(4) The proceedings before the Court are not an appeal against the Award.
(5) The Award by the Civil Court is to be deemed to be a decree.
(6) Every order short of requirement of subsection (1) of section 26 is not an Award.
13. On the above analysis of the matter, the proceedings of the Court under section 18 of the Act are not appellate proceedings against the proceedings of the Collector culminating in "award" which is an offer. The execution proceedings for realization of the amount awarded by Land Acquisition Officer cannot be taken before the Court under the cover of an order rejecting the reference on the principle of merger of order/decree, such principle is applicable where 'the order passed by original Court is appealed against and the Appellate Authority passes an order. The order of original Authority disappears and merges in order of Appellate Authority the order in existence is that of the Appellate Authority. The impugned order is thus legal, proper and unexceptional.
' As a consequence thereof, the invocation of the principle of merger in the instant case is misconceived; therefore, the appeals were dismissed in limine with costs.
' These are the reasons for short order announced on 6-5-2003.