This appeal is filed against the judgment and order of District Judge, Muzaffarabad, dated 11.2.2004 whereby a reference filed against Award No, 10/2003 dated 20.5.2003 has been dismissed.
2. Precise facts forming background of the appeal are that land comprising No, Khasra 92 re- numbered as 430 measuring 1 Kanal 18 Marlas situated in Kham Darang, Shaukat Line, Muzaffarabad, was acquired for public purpose on the move of Deputy Estate Officer, Muzaffarabad, vide Award No, 10/2003 issued on 20.5.2003. Feeling aggrieved from the determination of the compensation, the Government of Pakistan, through Military Estate Officer, Hazara Circle, Abbottabad, filed a reference before Collector land Acquisition, Muzaffarabad. The Collector Land Acquisition, vide order dated 12.12.2003 observed that the reference is time barred, and at the same time referred the same for further proceedings to the District Judge. The District Judge, heard the parties and vide order dated 11.2.2004, opined that as the Collector has stated in unequivocal terms that the reference is time barred, therefore, the reference Court has no jurisdiction to proceed with the matter.
3. Syed Nazir Hussain Kazmi, learned advocate for the appellant, vehemently contended that after receiving the reference, the Collector Land Acquisition, vide his order dated 12.12.2003, referred the same for further proceedings to the learned District Judge, therefore, dismissal of the reference on the ground of limitation by the learned District Judge, is erroneous and violative of law. The learned advocate placed reliance upon Fazal Karim's case [PLD 1998 SC (AJK) 26], in which, it was opined by the apex Court 'that the reference Court had no jurisdiction to determine the question of limitation, such function was within the domain of the Collector who had sent the reference'.
4. Syed Azad Hussain Naqvi advocate, appearing for the other side has controverted the arguments submitting that the facts of the case, referred to and relied upon by the learned advocate for the appellants, are distinguishable and the authority is not applicable to the present case. The learned advocate further contended that in that case the District Judge had not dismissed the reference on the question of limitation alone, rather decided the same on merits, whereas, the present reference was rejected by the District Judge on the ground of limitation. The learned advocate submitted that in the case in hand, the Collector has himself, declared the reference as time barred and thereafter sending the same for further proceedings, is of no use. The learned advocate further submitted that it was the duty of the District Judge/Reference Court to see as to whether the reference has been filed in accordance with the mandatory provisions contained in Section 18 of the Land Acquisition Act or not. The learned advocate further contended that the Court cannot absolve itself from its duty to see as to whether the proceedings before him have been properly instituted. The learned advocate also contended that the Court cannot perform the role of a post man rather the Court has been delegated statutory powers to decide the matter referred to it in proper manner and in light of scheme laid down in the relevant law. The learned advocate argued that the judgment of the District Judge is perfectly right and is liable to be maintained.
5. I have heard the learned advocates for the parties and have also perused the record.
6. In Fazal Karim's case, it was observed by the apex Court that the question of limitation cannot be decided by the reference Court as the same is within the domain of Collector Land Acquisition. In that case, the reference was not rejected by the District Judge, however, on appeal, this Court held that the reference was time barred, therefore, the proposition which needs resolution in the instant case, in my estimation, was not directly involved before honourable Supreme Court in Fazal Karim's case. Under Section 18 of the Land Acquisition Act, 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 determination of the Court for resolution of the disputes covered by the said section, i,e, his objection to the measurement of the land, the amount of compensation, the person to whom it is payable or the apportionment of the compensation among the persons interested. Sub- section (2) of Section 18 postulates that such application shall be made within six weeks from the date of award of the collector, if the applicant was present or represented before the Collector at the time when the award was made and in other cases within six months of the receipt of notice from the Collector under sub-section (2) Section 12, or within six months from the date of award of the collector, whichever period shall first expire. Section 19 postulates the manner in which the collector shall make the reference. For proper appreciation of the matter, Sections 18 and 19 of the Land Acquisition Act, are reproduced as under: "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 persons 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 ward, 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, sub-section (2) or within six months from the date of the Collector's award whichever period shall first expire.
19. Collector's Statement to the Court. (1) In making the reference, the Collector shall state for the information of the Court, in writing under his hand,--
(a) the situation and extent of the land, with particulars of any threes, buildings or standing crops thereon;
(b) the names of the persons whom he has reason to think are interested in such land;
(c) the amount awarded for damages and paid or tendered under Sections 5 and 17, or either of them, and the amount of compensation awarded under Section 11;
(d) if the objection be to the amount of the compensation, the grounds on which the amount of compensation was determined.
(2) To the said statement shall be attached a schedule giving the particulars of the notices served upon, and of the statements in writing made or delivered by, the parties interested respectively."
7. A combined reading of Sections 18 and 19 reveals that it is the duty of the Collector to apply his mind when-ever, on a reference, he is requested to refer the same for determination of the Court.
This power has been delegated by the statute and has to be exercised with open eyes in the manner postulated by the provisions of law referred to herein above. For exercise of power following conditions should be present and complied with:
(i) That there must be an interested party before the Collector;
(ii) The application should have been filed by such person for the resolution of the disputes covered by Section 18; and (iii)The application should be within prescribed period of limitation.
8. For a proper reference the Collector has to comply with the conditions enumerated in Section 19 reproduced hereinabove. It is also the duty of the Collector to see as to whether the reference has been filed within the prescribed period of limitation. If a reference/application is not filed within the prescribed period, then it is enjoined upon the Collector to reject the same forthwith. The limitation provided in Section 18 must be strictly adhered to. The Collector is not competent to ignore the same and any action contrary to this mandatory provision has an effect of violating the law. In the present case, the Collector has categorically stated that the application is time barred. As stated above, the award was made on 20.5.2003 and the reference was filed before the Collector on 12.12.2003, which was referred to the District Judge on 17.12.2003. The reference was received in the office of District Judge on 19.12.2003, thus, the reference was clearly beyond the prescribed period of limitation and there was no occasion for the Collector to refer the same to the District Judge for further proceedings after holding the same as time barred. The District Judge has rightly passed the impugned order as the learned Judge was performing judicial functions, therefore, could not shut his eyes nor could act as a stooge. The position would have definitely been otherwise if the question of limitation had not to be decided by the Collector and the matter was to be referred for determination to the District Judge, in that eventuality the authority referred to and relied upon by the learned advocate for the appellants could be relied upon. Where a reference is void ab-initio then the assumption of jurisdiction would equally be a nullity in the eye of law. A reference can be made to the case titled as Rashid Khan v. State' (1972 SC 272). At page 272 of the report, the apex Court of Pakistan has observed as under: "If a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any orders passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction."
9. Section 18 of the Land Acquisition Act, has also received attention of a learned Judge of Quetta High Court. Mr. Justice Mir Hazar Khan Khoso (as his lordship then was), after reviewing an earlier case law on the subject, opined as under: "29. All these conditions are matter of substance and indeed their compliance is essential to the exercise of the powers, either by the Collector or by the Court. The Collector, before exercising such powers has to satisfy himself whether the application requesting for reference of the case fulfils the conditions laid down in the section or not. If any one of the conditions misses, the application becomes untenable and it renders the reference ab initio void. The reference itself becomes non- existent in the eye of law. If the Collector closes his eyes and refers the matter to Court, the reference Court cannot close its eyes. On the contrary, it becomes sacred duty of the Court to look into the validity of the reference. If the Court closes its eyes and fails to look into the validity of the reference and decides the matter, such decision indeed would become void and non-existent in the eye of law."
10. Same view has been taken by a Division Bench of this Court in a case titled as 'Azad Government of the 'State of Jammu and Kashmir v. Muhammad Shafi' (PLD 1971 AJK HC 33). The learned Judges while dealing with similar situation, at page 40 of the report, observed as under: "My view is 'and I hold that before a Collector can make a reference and the Court can entertain it, the conditions prescribed by Section 18, Land Acquisition Act, must be complied with and these conditions are:
(1) a written application to the Collector;
(2) by a person interested who has not accepted the award;
(3) stating the grounds of objections as to the measurement of land, or as to the person to whom it is payable or as to the apportionment of compensation money amongst the persons interested; and
(4) within the period of time prescribed by Section 18, sub-section (2).
These formalities are matters of substance and their compliance is an essential condition to the exercise of the powers of reference under this section."
11. Again at page 42 of the same judgment, it was opined as under: "As a result of the above discussion and Agreeing with the view expressed in AIR 1946 Mad. 184 I hold that the Collector acting under Part III of the Land Acquisition Act, in which Section 18 is included, acts as a statutory authority and that he is not acting as an agent of the Government and, therefore, he is not competent to waive the objection of limitation and if the Collector refers a reference application made by an owner beyond the prescribed time, the reference Court is competent to go into the question of limitation. It is competent for the reference Court to see that the four conditions enunciated by me above are there in which is also included the condition of the limitation so as to clothe himself with the jurisdiction to hear and decide the reference application.
The reference Court can go behind the reference (through not beyond the reference) to see that the four conditions existed.
The longest period of limitation prescribed for a reference application under Section 18, sub- section (2), clause (b) (ii) is six months from the date of the Collector's award. the collector's award was given on 31.8.1965 and the present reference application was made on 31.7.1969, therefore, I have no hesitation in holding that the reference application is hopelessly time barred."
12. The view has also been approved by Indian Supreme Court in Muhammad Hasnuddin's case (AIR 1979 SC 404). The apex Court of India also pleased to resolve the controversy after reviewing the earlier case law on the subject. The relevant observation of the apex Court has been recorded at page 411 in paras 24 to 29. It would be useful to reproduce these observations for further guidance which are to the following effect.
"24. The word 'require' in S. 18 of the Act implies compulsion. It carries with it the idea that the written application makes it incumbent on the Collector to make a reference. The Collector is required to make a reference under S. 18 on the fulfilment of certain conditions. The first condition is that there shall be a written application by a person interested who has not accepted the award. The second condition is as to the nature of the objections which may be taken, and the third condition is as to the time within which the application shall be made. The power of the Collector to make a reference under S. 18 is thus circumscribed by the conditions laid down therein, and one condition is the condition regarding limitation to be found in the proviso.
25. The conditions laid down in S. 18 are matters of .substance and their observance is a condition precedent to the Collector's power of reference', as rightly observed of reference', as rightly observed by Chandavarkar J. in Re Land Acquisition Act, (supra). We are inclined to the view that the fulfillment of the conditions, particularly the one regarding limitation, are the conditions subject to which the power of the Collector to make the reference exists. It must accordingly be held that the making of an application for reference within the time prescribed by proviso to S. 18, sub-sec.
(2) is a sine qua non for a valid reference by the Collector.
26.From these considerations, it follows that the Court functioning under the Act being a tribunal of special jurisdiction, it is its duty to see that the reference made to it by the Collector under S. 18 complies with the conditions laid down therein so as to give the Court jurisdiction to hear the reference. In view of these principles, we would be extremely reluctant to accept the statement of law laid down by the Allahabad High Court in Abdul Karim's case (AIR 1963 All 556) (FB-) (supra).
27.Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction and whether the jurisdiction of such tribunal is dependent on the existence of certain facts or circumstances. Its obvious duly is to see that these facts and circumstances exist to invest it with jurisdiction and where a tribunal derives its jurisdiction from the statute that creates it and that statute also defines the conditions under which the tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen. As observed by the Privy Council in Nusservanjee Pastonjee v. Meer Mynoodeen Khan, (1855) 6 Moo Ind App 134, wherever jurisdiction is given to Court by an Act of Parliament and such jurisdiction is only given upon certain specified terms contained in that Act it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction for if they be not complied with the jurisdiction does not arise.
28.If an application is made which is not within time, the Collector will not have the power to make a reference in order to determine the limits of his own power, it is clear that the Collector will have to decide whether the application presented by the claimant is or is not within time and satisfies the conditions laid down in S. 18. Even if a reference is wrongly made by the Collector the Court will still have to determine the validity of the reference because the very jurisdiction of the Court to hear a reference depends on a proper reference being made under S. 18, and if the reference is not proper,. there is no jurisdiction in the Court to hear the reference. It follows that it is the duty of the Court to see that the statutory conditions laid down in S. 18 have been complied with, and it is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference.
It is only a valid reference which gives jurisdiction to the Court and, therefore, the Court has to ask itself the question whether it has jurisdiction to entertain the reference.
29. In deciding the question of jurisdiction in a cases of reference under Section 18 by the Collector to the Court, the Court is certainly not acting as a Court of appeal; it is only discharging the elementary duty of satisfying itself that a reference which it is called upon to decide is a valid and proper reference according to the provisions of the Act under which it is made. That is a basic and preliminary duty which no tribunal can possibly avoid. The Court has, therefore, jurisdiction to decide whether the reference was made beyond the period prescribed by the proviso to sub-sec.
(2) of S. 18 of the Act, and if it finds that it was so made, decline to answer reference."
13.A further reference can also be made to a case titled "M/s Swatantra Land & Finance Private Ltd. v. The State of Haryana." [AIR 1975 Punjab & Haryana 52] (FB). The relevant observation is as follows:-- "It is a well known principle of law that any provision of law, which authorities a competent authority to receive an application and to take action thereon if it is made within time, given an inherent power to that authority to reject the same and not to act thereupon if it is made beyond time. The Collector has not been given any authority to condone the delay and therefore, any reference made on a time-bared application will be illegal and not in accordance with the provisions of the Act. The fact that the Collector forwarded the time-barred applications to the Civil Court does not take away the jurisdiction of the Court to consider the contention of the State that the reference applications were barred by limitation."
14. These findings have been approved by the apex Court of India in Muhammad Hasnuddin's case referred to herein above. In view of aforementioned precedents, I am of the view that after the decision of the Collector that the reference is time barred, there was no occasion for the District Judge to proceed in the matter and refusal on his part cannot be held illegal.
15. Viewing the controversy from another angle, even if it is assumed that the reference could not be rejected on the question of limitation, even then, the same was not maintainable for the following reasons:--
(i) The appellants have not arrayed the Collector Land Acquisition as a party to the reference, who is a necessary party and in his absence no effective order can be passed. A reference can be made to NLR 1994 Revenue 146;
(ii) The reference filed in its present form is not maintainable for having been filed by an incompetent authority. The Federation of Pakistan cannot be represented by Military Officer or Deputy Military Estate Officer; (iii)The power of attorney filed on behalf of the appellants/ petitioners has not been signed by any of the officer competent to sign and institute the proceedings on behalf of the Federation of Pakistan, as is envisaged under Rule 7 of the Rules of Business, 1973. More-over, neither any sanction for institution of the proceedings nor any power of attorney on behalf of Secretary Defence, Government of Pakistan has been filed either with reference or appeal. Therefore, it is concluded that the reference was filed without lawful authority and remand will not serve any purpose.
16. Upshot of above discussion is that finding no force, the appeal is hereby dismissed with costs.