' JAVED IQBAL, J.-This appeal with leave of the Court is directed against the judgment dated 26-6- 2003 whereby the Constitutional petition preferred on behalf of respondents has been accepted.
2. Leave to appeal was granted on 10-9-2003 which is reproduced herein below for ready reference:-- "Land Acquisition Collector, Rawalpindi and National Highways Authority Islamabad seek leave to appeal against the judgment dated 26-6-2003 of a learned Single Judge of the Lahore High Court, Rawalpindi Bench in Writ Petition No,573 of 2003 whereby the petitioners were directed to pay compensation of the acquired land measuring 189 kanals 1 marla.
2. For the construction of Islamabad-Lahore Motorway 328 kanals, 11 marlas of land situated in village Dulla was acquired through Award No,49 announced on 26-10-1992. About 24 owners felt aggrieved of the compensation awarded for different classifications of land measuring 139 kanals and filed objection petitions under section 18 of the Land Acquisition Act, 1894. The compensation was enhanced by the Court of reference to Rs,30,000 per kanal and modified by the High Court to Rs,20,000 per kanal.
3. The owners of remaining land measuring 189 kanals 1 marla avoided to resort to the provisions of Land Acquisition Act and instead filed writ petition under Article 199 of the Constitution for enhancement of compensation which was so enhanced.
4. After hearing Mr. Gulzarin Kiani and Ms. Naheeda Mehboob Elahi, we feel convinced that important questions of law of public importance need to be considered, to the effect:--- (a). Whether, in the presence of the provisions of an exhaustive special law of Land Acquisition Act, 1894 and without resorting to section 18 thereof, an owner/affectee can claim enhancement of compensation directly in the High Court by invoking the provisions of Article 199 of the Constitution.
(b). Whether the provisions of Order XLI, Rule 33, C.P.C. Can be brought into play by the Court exercising jurisdiction under Article 199 of the Constitution for giving relief to a party that had never filed an appeal and whether the law applicable to appellate jurisdiction can be invoked during the exercise of Constitutional Jurisdiction.
5. For considering the above points and other points arising from and connected therewith we propose to grant leave, to appeal. The same is hereby granted. Notices be issued to the respondents. Till the decision of this appeal, the payment of enhanced compensation is suspended."
3. Heard Mr. Gulzarin Kiani, learned ASC on behalf of appellants who mainly argued that the Land Acquisition Act, 1894 is a ,complete code as well as capable enough to meet all sort of such eventualities and therefore, the Constitutional jurisdiction as conferred upon the learned High Court could not have been invoked. It is urged with vehemence that the payment of compensation to the land owners of 189 kanals 1 marla was made by whom the award has been accepted and no reference whatsoever was made by them in the civil court and they were not parties to the appeal in High Court to whom relief had been granted by the learned Division Bench of Lahore High Court, Rawalpindi Bench in RFA No,7 of 1995 which aspect of the controversy has not been appreciated in its true perspective by the learned single Judge in chambers as the Constitutional Jurisdiction could not have been invoked to set aside the judgment in R.F.A. No,7 of 1995 passed by a Division Bench. It is next contended by Mr. Gulzarin Kiani, learned Advocate Supreme Court that the provisions as. Contemplated in Order XLI, Rule 33, C.P.C. Have been misinterpreted and misconstrued because writ jurisdiction could not have been equated to that of jurisdiction in appeal. Mr. Gulzarin Kiani, learned ASC on behalf of appellants has stressed emphatically that in RFA No,7 of 1995 filed by the learned Acquisition Collector against the award/judgment of Referee Court dated 27-6-1994 enhancing the compensation at the rate of Rs,30,000 per kanal in favour of only twenty five persons who were owners of 139 kanals of land out of the total acquired land measuring 328 kanals 11 marlas and cross objections No,1 of 1995 were preferred only by 25 affected land owners and the learned Division Bench vide its judgment enhanced the market value to Rs,20,000 per kanal which benefit cannot be extended to the remaining land-owners who had neither filed any reference under section 18 of the Land Acquisition Act, 1894 nor enhancement claimed. The said judgment was never assailed before the apex Court pursuant to the provisions as contemplated in section 54 of the Land Acquisition Act, 1894 and thus it attained finality which cannot be re-opened by the learned single Judge in exercise of Constitutional jurisdiction by allowing relief to other land owners except by whom the appeal as mentioned herein above was filed before the learned High Court. It is also pointed out by Mr. Gulzarin Kiani, learned ASC that no benefit could have been availed by the remaining owners of the land by whom no reference under section 18 of the Land Acquisition Act, 1894 was made and the award was accepted without any protest. It is also argued that the writ petition was never formally admitted and besides that the National Highway Authority was never represented but only comments were filed and thus proper opportunity of hearing was never afforded which resulted in serious miscarriage of justice.
4. Mr. Muhammad Akram Sheikh, learned Sr. ASC appeared on behalf of respondent No,1 and contended that the Constitutional Jurisdiction could have been invoked in such like cases and the benefit can be extended to the remaining land owners by whom no appeal was filed pursuant to the provisions as contained in Order XLI, Rule 33, C.P.C. In order to substantiate his view point the learned Senior Advocate Supreme Court has referred case Mehboob Ali Malik v. Province of West Pakistan (PLD 1963 (W.P) Lahore 575). It is next contended that though subject-matter was the same yet entire award was challenged and therefore, the benefit granted by the learned single Judge in chambers vide judgment impugned can be extended to all the parties of the award irrespective of the fact whether any reference under section 18 of the Land Acquisition Act, 1894 was made by them or any protest was lodged. It is also pointed out that proper opportunity of hearing was afforded in person and in fact it was a consenting order which cannot be questioned. The learned Senior Advocate Supreme Court on behalf .Of respondent has stressed time and again that Constitutional jurisdiction could have been invoked in such like cases. In this regard reference has been made to cases Dewan Salman Fiber Ltd. v. Government of N.-W.F.P. (PLD 2004 SC 441), Muhammad Sarwar Khan v. Government of Pakistan 1998 SCMR 2197).
5. We have carefully examined the respective contentions as agitated on behalf of the parties, scanned the entire evidence and perused the judgment impugned with care and caution. We have also examined the judgment passed in R.F.A. No,7 of 1995 by the learned Division Bench of Lahore High Court on 28-2-2001. The pivotal question which needs determination would be as to whether the judgment in RFA No,7 of 1995 had attained finality and whether it could have been reversed by the learned single Judge in chambers and more-so the land owners who were not party to the R.F.A. No,7 of 1995 can be benefited from the judgment impugned or otherwise?
6. After having an in-depth scrutiny of the record it revealed that R.F.A. No,7 of 1995 was preferred by the Land Acquisition Collector, High Way Department and the following land owners were made as respondents:--
(1) Mian Khan
(2) Said Mir
(3) Jamal Khan sons of Shahna Khan
(4) Ghulam Haider son of Fateh Muhammad
(5) Muhammad Riaz
(6) Ghulam Muhammad son of Fazal Khan
(7) Farman Ali son of Sher Baz
(8) Muhammad Sadiq son of Nawab
(9) Karam Dad son of Muhammad Khan
(10) Faqir Muhammad son of Fazal Khan
(11) Qazi Abdul Shakoor son of Qazi Muhammad Yousaf
(12) Fazal Dad son of Mehr Khan
(13) Allah Yar son of Saadullah Khan
(14) Noor Muhammad son of Ghulam Haider
(15) Mst. Amir Begum wife of Zamir Khan
(16) Mst. Khadija Begum wife of Said Amir
(17) Mst. Malkani wife of Mian Khan
(18) Muhammad Anwar son of Jehandad
(19) Qazi Abdul Ghafoor son of Qazi Muhammad Yousaf
(20) Mst. Allah Rakhi widow of Jehandad Khan
(21) Muhammad Jehangir
(22) Muhammad Aslam
(23) Muhammad Babar
(24) Tariq Mehmood son of Jehandad Khan
(25) Mst. Fehmida d/o Jehandad
(26) National Highway Authority through its G.M., Islamabad.
(27) Province of Punjab through Collector Chakwal, District Chakwal.
7. The award dated 21-6-1992 was the subject-matter of the above mentioned R.F.A. Which was decided by means of judgment dated 28-2-2001, relevant portion whereof is reproduced herein below for ready reference:- "9. The statement of average sale price for the period from 3-12-1990 till 3-12-1991 shows that 18 kanals 14 marlas of land was sold for Rs,70,000 in the same village and the average valuation per kanal came to Rs,3850/76 per kanal. This is with respect to Maira land. So far as Barani land was concerned, there were about 8 sales in the village at average valuation of Rs,5425. Ex. P-1 is another document showing the sales made in the village for the period from 26-10-1991 to 26-10-1992. The average valuation of these transactions came to Rs,12346 per kanal. According to another statement, Ex.P-2, the valuation of the land was Rs,723/72 per kanal. Similarly, in another statement Exh. P-3, average valuation per kanal worked out was Rs,2369/33. It is surprising that the learned trial court did not at all refer to these documents which had been filed by the respondents themselves. It may be stated that the appellant had not led any evidence whatsoever to show the potential value of the land nor was it the case of the respondents that the area was closely situated to some city and had obtained urban character. However, there is an admission in ground
(a) of appeal that in the award announced in respect of adjacent land of village Dad number the price fixed was Rs,20,000 per kanal. After going through the evidence and considering all aspects we are of the view that this amount would be fair market price of the land in question."
8. It is worth mentioning that the question of cross objections filed by the respondents was also dilated upon and decided in the above referred to judgment as follows:-- "12. Coming now to the cross-objections filed by the respondents, the case of the respondents is that they were entitled to compensation for the damages caused to dam/Bund, which has been constructed by the respondents. They had claimed a sum of Rs,25,00,000 on this account. The evidence led in this behalf by the respondents is extremely weak. No person came forward to state that he was involved in the construction of dam/Bund. It was admitted by A.W.1 Azhar Hussain Patwari, that the existence of Bund has not been mentioned in the revenue record. Muhammad Nawaz, Sarbrah Lambardar, A.W. 2, was the other witness examined by the respondents in support of their claim. He, however, could not state the basis on which he had calculated the loss. On the other hand, he stated that it was Abdullah Khan and Haji, Saleem Khan, who had constructed the Bund, from Whom he had learnt that the damage caused to the Bund was Rs,20,00,000 or Rs,25,00,000. The respondents have not examined Abdullah Khan and. Haji Saleem Khan.
' As a result of what has been said above, compensation awarded by the trial Court is reduced from Rs,30,000 per kanal to Rs,20,000 per kanal while the compensation awarded for the standing crops and the trees is upheld. The appeal as well as cross-objections stand disposed of, in above terms. No order as to costs."
9. The above judgment was passed by a Division Bench of Lahore High Court (Rawalpindi Bench) on 28-2-2001 which had attained finality and it cannot be reversed by learned single Judge in chambers in exercise of his Constitutional jurisdiction and it could only be assailed before this Court pursuant to the provisions as contained in section 54 of the Land Acquisition Act, 1894. It is worth mentioning that award is one and the same which was made on 21-6-1992 and therefore, it cannot be assailed again as its impact, significance and import was decided on 28-2-2001 in R.F.A.
No,7 of 1995. All those land owners who had not raised any objection or filed reference under section 18 of the Land Acquisition Act, 1894 cannot be benefited by the judgment impugned for the simple reason that they were satisfied. Had they not been satisfied they must have invoked the provisions as enumerated in section 18 of the Land Acquisition Act, 1894 which was never done. A complete mechanism has been provided for the acquisition of land, its compensation and redressal of the grievance of the aggrieved land owners and therefore, the question of invocation of Constitutional jurisdiction does not arise. The provisions as enumerated in Order XLI, Rule 33, C.P.C. Cannot be made a ground for, providing relief to those land owners who had neither challenged the award by way of reference under section 18 of the Land Acquisition Act, 1894 nor filed any appeal before the High Court. It is to be noted that Mian Khan was one of the respondents in R.F.A. No,7 of 1995 which was decided on 28-2-2001 and never assailed before this Court pursuant to the provisions as contemplated in section 54 of the Land Acquisition Act, 1984 and therefore, the question of invocation of Constitutional jurisdiction again in a matter which was already settled does not arise.
10. We have' dilated upon the question as to whether the land owners who were not party in R.F.A.
No,7 of 1995 could get any benefit from the judgment impugned or otherwise? In our opinion they are not entitled to get any benefit for the reason as mentioned herein above. A similar proposition was examined in case State v. Narayani Pillai (AIR 1959 Kerala 136) and it was observed as follows:- - "(2) The position taken up by the appellant gains full support from the relevant sections in the Land Acquisition Act and also from a series of reported decisions where the identical question had come up for consideration. The Land Acquisition Act which empowers the State to make compulsory acquisition of property has made provision for payment of adequate compensation to the owners of the property thus acquired.
' Special provisions have also been made for resolving the disputes that may arise in relation to the distribution of the amount of compensation or as to the quantum of the compensation. Such disputes have to be referred to the Civil Court for adjudication as provided for in Ss. 18 and 27 of the Travancore Act corresponding to Ss. 18 and 30 of the Indian Act. In dealing with such references the court is not exercising its normal jurisdiction under S.9 of C.P.C. But only the special jurisdiction conferred by Ss. 18 and 30 of the Land Acquisition Act. (Emphasis provided)
' A reference by a Land Acquisition Officer under either of these sections is a condition precedent to the exercise of the court's special jurisdiction to adjudicate upon the matters covered by the reference. The exercise of such a special jurisdiction must necessarily be subject to the conditions and limitations imposed by the Statute which has conferred the special jurisdiction on the court.
(3) The award made by the Land Acquisition Officer is an offer made on behalf of the State, of the price agreed to be paid in respect of the property acquired. If the party in whose favour the award is made accepts the same, the matter becomes final and conclusive. In such a case there can be no reference to the Civil Court as contemplated by Ss. 18 and 30 of the Act. A reference under S. 18 can be asked for only by the party who does not accept the award made by the Land Acquisition Officer". (Emphasis provided)
1.1. In case Begum Jan v: Abdul Wahab (PLD 1988 SC [AJ&K] 142) the question under consideration was examined and it was concluded as follows:-- "A special procedure has been prescribed in the Land Acquisition Act, 1894 for an aggrieved party to redress his grievance. Therefore, if a. Person had an opportunity and knowledge to question the validity of the award or any part thereof but fails to avail the remedy by seeking a reference under section 18 of the Act, he cannot be subsequently permitted to seek the redress of his grievance by filing the civil suit both on the principle of res judicata as well as' in view of the fact that special procedure has been prescribed. In the Land Acquisition Act to seek the adjudication of a controversy. The scheme of the Land Acquisition Act clearly shows that any redress. Arising out of an award must be sought by the procedure provided by the Act itself; until and unless, of course, it is shown that the person concerned had no knowledge of the proceedings under the Act or of the award and the period of limitation for moving the Collector in making a reference had expired due to ,no fault of such person. Even when there is statutory ouster of jurisdiction of the Civil Court a civil suit is competent if it is shown that the Tribunal or the Court whose order is being assailed lacked the jurisdiction in the matter or was actuated by malice, but in the proceedings arising out of the Land Acquisition Act any ground on which an award can be challenged in a separate civil suit, the same can be 'raised before the Court to which a reference is made under section 18 of the Land Acquisition Act. (Emphasis provided). It' is incorrect to suggest that the Court to which . Reference is made can adjudicate upon a particular controversy arising out of 'an award yet a separate civil suit is competent even if the aggrieved party had the knowledge and opportunity to redress his grievance by seeking a reference.
' Jogesh Chandra Roy v. Secy. Of State of State AIR 1919 Cal. 724; Cal. 4; Cheddi Ram v. Ch. Ahmad Shafi and others AIR 1933 Oudh 100; Mt. Krishana ,Dei v. Governor General in Council and others AIR 1950 All. 1 and KamalaKunwar v. Lakshan. Goala and another AIR 1967 Ca1.105."
12. The above mentioned proposition was also examined slightly in a different angle in case Zainuddin v. Assistant Commissioner cumCollector (1996 MLD 731) which was authored by one of us (Mr. Justice Javed Iqbal a's Judge of High Court of Balochistan) and it was observed as under:- "We have not been able to pursue ourselves to agree with Mr. Basharatullah, Advocate, that the provisions as contemplated under section 18 of the Act, could not be invoked due to the correspondence made by WAPDA to Collector indicating to acquire another piece of land at Viala Baz, as the scrutiny of record is indicative of the fact that correspondence was initiated after the announcement of the Award and more so, it was never finalized as to whether the suit land should be abandoned or not? It was however, decided to acquire this land finally for public purpose (details mentioned by Muhammad Anwar Cheema D.W.2), hence the correspondence made in- between WAPDA and Collector cannot be considered. The appellants have failed to avail the appropriate remedy for the redressal of their grievance as provided under section 18 of the Act and filed civil suit after a lapse of about 2 years. In case of dissatisfaction with the Award, the appellants could have filed an application to Collector for referring the mater to District Judge for the redressal of their grievances, which was not done and the appellants remained quiet for a considerable long period, and thereafter, preferred to file a civil suit. No doubt, that in certain cases the jurisdiction of a Civil Court can be invoked, but it was an essential prerequisite to show that the award was either based on mala fides, or in violative of the provisions of the Act, or due to some grave illegality or serious infirmity, it was nullity in the eyes of law and only thereafter the appellants could have redressed their grievances by filing a civil suit. There is no cavil to the Proposition that the Civil Courts are not competent to reopen and determine matters disposed of in accordance with the provisions as contemplated in the Act. (Emphasis provided). "The Civil Courts are not competent to re-open and determine Matters disposed of in accordance with the Land Acquisition Act in a separate suit". (17 Ind. Cas. 684 + 16 PWR 1913 + 1946 A11.246). "The validity of- the Award and acquisition proceedings were never challenged even in the civil suit but initiation of fresh proceedings was prayed for in order to get maximum compensation keeping in view the prevalent mallet prices". The Award which had already attained finality ftd made in accordance with the provision of the Act cannot be disturbed by filing a simple civil suit and ignoring the mandatory provision and prescribed procedure as laid down in the Act. (Emphasis provided). It must be kept in view that "the Civil Courts cannot substitute their own direction for the persons or, bodies selected by the Legislature for that purpose". (1876 4 Ch. D. 635 + (1876) 2 QBD 30). Nor does any presumption arise against the finality of a decision by an authority with statutory powers to pronounce in respect of a duty or /liability created by the statute. For that "there is no ouster of the jurisdiction of the ordinary Court; for they never had any". (Maxwell's Interpretation of Statutes 29 Bom. 480). Where the law provides a particular manner for the doing of a particular thing, it must be done in that manner (PLD 1967 Lah. 227). It hardly needs any elaboration that where the claimant fails to apply for reference under section 18 of the Act, Award attains finality and thereafter it cannot be questioned. (32 Cal. 605 (PC)". (Emphasis provided)
13. There is no cavil to the proposition and it is-well settled by now that "if a land-owner has accepted the amount of compensation without protest (and it is conceded at the bar that other land-owners in this case have done so), he would be unable to seek even a reference to the Court of Reference Judge under section 18 of the Act, much less to be able to come in appeal against the award of Collector or to lay challenge to it in the constitutional jurisdiction of the High Court". (Umar Farooq v. Acquisition Collector PLD 1975 Pesh.103).
14. In case of Government of Azad Jammu and Kashmir v. Muhammad Shafi (PLD 1971 AJ&K 34) it was observed that "the legal position is that where two persons are dissatisfied with the award as to the amount of the compensation allowed under an award, and one of them makes a reference application and the other does not make a reference application, and application of the party making the reference application, the benefit of the enhanced rate shall go only to the party making the reference application and shall not be allowed to the party that does not make the reference application." (Emphasis provided).
15. The above mentioned point was also examined in case Abdul Wakeel Khan v. Land Acquisition Collector (1995 CLC 548) with the following observation:-- "In the instant case the contesting respondents never adopted this course as provided by law. No doubt C.P.C. Is applicable for certain purposes in proceedings before the Land Acquisition Judge but he could not entertain the application of the respondents for their implement in the case under Order I, Rule 10(2), C.P.C., the matter having arisen under a special law which provides for a special procedure for the "interested persons" to go before the Land Acquisition Judge in cases relating to apportionment or rate of compensation etc. Of the land acquired under the Act ibid through the Collector of the District who had issued notifications under sections 4 and 11 of the Act. (Emphasis provided). This would be besides the question that not only the application filed by the contesting respondents before the Reference Judge was hopelessly barred by limitation, they having accepted the Award and by receiving the compensation amount without protest could not seek any remedy even by way of a reference under section 18 of the Act."
16. In our considered view the learned single Judge could not have invoked the Constitutional Jurisdiction and re-opened a final and closed transaction by Division Bench by means of judgment dated 28-2-2001 in R.F.A. No,7 of 1995. Besides that the writ petition filed by Mian Khan was never admitted properly and record is silent as to whether power of attorney by Mian Khan for the remaining land owners was proper as their names were never disclosed but they were impleaded as a party. There is no cavil to the proposition "that the power conferred on the Appellate Court under Order XLI, Rule 33, C.P.C. Is of the widest amplitude and in exercise of this power the Appellate Court is competent to grant relief to a party, notwithstanding the fact that such party failed to prefer an appeal or submit any cross-objection. However, in granting relief in such cases the appellate Court will be guided by principles of equity, justice and good conscience and the fact that withholding of relief would result in a contradictory, unworkable or impossible order/decree.
Therefore, when the Appellate Court reaches a conclusion in a case that by withholding the relief to a non-appealing respondent or to a respondent who omitted to file cross objection grave hardship or injustice is likely to result to it or that the judgment or orders will be rendered contradictory, it will be a good ground for exercise of power under Order XLI, Rule 33, C.P.C. To grant appropriate relief to a non-appealing respondent or to a respondent who omitted to file cross-objection in the appeal. "
(Province of Punjab v. Abdul Majeed 1997 SCMR 1692). It is worth mentioning to note that the dictum laid down in case Province of Punjab v. Abdul Majeed (supra) and relied upon by the learned single Judge in chamber and referred to by the leaned Senior Advocate Supreme Court on behalf of respondent cannot be made applicable in this case as the controversy had already been set at naught in R.F.A. No,7 of 1995 by means of judgment dated 28-2-2001.
In sequel to above mentioned discussion we are of the considered opinion that in land acquisition cases subject to certain exceptions the invocation of Constitutional jurisdiction does not arise and the learned single Judge has erred while exercising his Constitutional jurisdiction, in a case which was already decided and finalized by learned Division Bench of Lahore High Court (Rawalpindi Bench.) The appeal is accordingly accepted and the judgment impugned is set aside.