Wan Hamid Farooq, J,--BP Pakistan Exploration and Production, Inc. (formerly known as Union Texas Pakistan Inc.), petitioner, through the present petition seeks leave to appeal against the iudgment and decree dated 8.8.2005, whereby, learned High. Court of Sindh at Karachi accepted Respondent No, l's appeal (First Appeal No,2112004), enhanced the compensation and, remanded the case to the learned District Judge Badin for limited assessment of the damages caused due to Acquisition qua the remaining land.
2. Facts, in brief, culminating to the present petition are that Respondent No, 2, on 25.4.1987, commenced acquisition proceedings to acquire land measuring 8.6 acres situated at Deh Khud, Taluka Golarchi, District Badin (hereinafter called questioned land), owned by Respondent No, 1, for the purpose of construction of airstrip at Khashkheli Oil Field for benefit and use of M/s Union Texas Pakistan Inc., under the provisions of Land Acquisition Act, 1894, (the Act). Notification under Section 4 of the Act was issued, the award was rendered on 7.9.1988 and Respondent No, 1 was awarded compensation at the rate of Rs,45,000/- per acre for cultivated land, Rs,30,000/- per acre for uncultivated land and a sum of Rs,76,406.25 as 25% compulsory charges on the total amount of the compensation. Respondent No, 1 felt dissatisfied with the terms of the award and filed an application under Section 18 of the Act, before Respondent No, 2, requiring him to refer the matter to the Court for determination of the amount of compensation. Pursuant thereto, the matter was taken in hand by 1st. Additional District Judge, Badin, and. Respondent No, 2 resisted the same through reply. The learned trial Court framed the necessary issues, recorded the evidence of the parties and ultimately, vide judgment and decree dated 10.8.1998, set aside the award and assessed compensation at the rate of Rs, 50,000/- per acre for the entire land. In addition to the said compensation a sum of Rs,25% as compulsory charges, 15% on the compensation amount as compulsory acquisition charges plus 6% interest with effect from the date of payment of amount already paid at the rate of Rs,50,000/- per acre was also awarded. It was further directed that if Respondent No, 1 has already received any amount as compensation, 25% compulsory charges, shall be excluded from the total amount of compensation awarded by the Court. Respondent No, 1 assailed the said judgment and decree through appeal (First Appeal No, 21/2004) before the learned High Court of Sindh at Karachi, which accepted the appeal and enhanced the compensation from Rs,50,000/- per acre to Rs,200,000/-, per acre vide judgment and decree dated 8.8.2005. The operative portion of the said judgment is reproduced below:-- "Consequently, the appeal, in these circumstances is allowed by grant of compensation at the rate of Rs,200,000/- per acre in respect of land measuring 8.06 acres and further compensation in the sum of Rs,200,000/- per acre being damage due to severance in respect of land measuring 2.20 acres with compensation at the rate of 25% being compulsory acquisition charges, additional 15% sum under Section 23(2) of the Land Acquisition Act with 6% interest w,e,f, the date of acquisition till payment and 25% additional compensation under Section 28-A of the Land Acquisition Act less the amount already paid to the appellant.
For limited assessm ent of damages arising out of the acquisition injuriously affecting the remaining land of appellant measuring 13-14 acres and for compensation for the trees, the matter is remanded to the learned District Judge, Badin, for decision afresh." Hence the present petition.
3. At the very outset, Wasim Sajjad, Senior ASC, representing the caveator, has raised a preliminary objection that the present petition for leave to appeal is not maintainable in law on the ground that the judgment and decree passed by the learned Additional District Judge, Badin was varied by the High Court and the value of the subject-matter exceeds Rs, 50,000/-, therefore, direct appeal under Article 185(2)(d), ,before this Court was competent, which remedy was not availed by the petitioner. He has added that in case present petition is allowed to be converted into appeal, it would be barred by time and there are no sufficient grounds for condonation of delay. Makhdoom Ali Khan, learned ASC, when confronted with the afore-noted objections, submitted that the High Court although modified the decree passed by the learned trial Court yet passed composite judgment and also remanded the case to the learned trial Court. He has added that as no appeal is competent against the remand order, therefore, the petition for leave to appeal is the only remedy available to the petitioner. He has relied upon Syed Qadar Dad and others v. Muhammad Afzal and others (PLD 1997 SC 859). He has next contended that the present petition can be converted into appeal by condoning delay caused in preferring the appeal for which there are sufficient reasons supported by the case law. He has further submitted that if two periods of limitation are provided for filing a particular lis or a plaintiff's cause of action falls under different articles of First Schedule of the Limitation Act such an ambiguity should be construed in favour of the petitioner/plaintiff. He has relied upon the cases of Kasturchand Okaji Marwadi v. Hari Govind Wagle (AIR 1934 Bombay 491), Mst. Bibi Khatoon and 7 others v. Abdul Jalil (PLD 1978 SC 213), Nathey Khan v. Government of West Pakistan (Now Punjab) (1980 SCMR 485), Habib Bank Limited v.
Mussarat Ali Khan (PLD 1987 Karachi 86), Muhammad Jahangir, Proprietor Qadeer Brothers v.
Executive Engineer and another (1999 MLD 788). His next contention is that under the facts and circumstances of the present case, notwithstanding the bar of limitation, the petition can be converted into appeal and decided on merits. He has relied upon Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCMR 2164), Hyderabad Development Authority through M.D. Civic Centre, Hyderabad u. Abdul Majeed and others (PLD 2002 SC 84), Chairman NWFP Forest Development Corporation and others v.
Khurshid Anwar Khan and others (1992 SCMR 1202), Haji Muhammad. Saleem v. Khuda Bakhsh (PLD 2003 SC 315), Haji Muhammad Nawaz v. Hussain Shah (1990 SCMR 1621) and Abdul Majeed and another v. Ghulam Haider and others (2001 SCMR 1254). He while referring to letter dated 23.8.2005 addressed to the petitioner by Usmani & Usmani Law Firm (at pages 283 & 284 of paper book), has further stated that since the counsel advised the petitioner that a period of 60 days is available for filing a petition for leave to appeal before this Court, therefore, the present petition was filed under the mistaken advise of the learned counsel, which constitutes sufficient cause for condonation of delay. He has relied upon Nazar Muhammad and another v. Mst. Shahzada Begum and another (PLD 1974 SC 22), Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others (1985 SCMR 983) and Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584).
Wasim Sajjad, learned ASC in reply has reiterated that in this case an appeal was competent and the present petition cannot be converted into appeal as it has become barred by time He has relied upon the case of-Water and Power Development Authority through Chief Engineer v.
Saadullah Khan and others (1999 SCMR 319). He has additionally empathetically argued that the petitioner is the beneficiary of the acquired land, therefore, it is precluded from filing reference or appeal as under the law a beneficiary cannot file an appeal or reference. He has referred to Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (1991 SCMR 2193) and Commissioner of Income Tax/Wealth Tax v. Messrs Hameed Model Industries (Put) and another (2000 SCMR 648). Makhdoom Ali Khan, learned ASC in order to rebut the additional argument of Mr. Wasim Sajjad, has submitted that Section 18 of the Land Acquisition Act, 1894, stood amended by Land Acquisition (Sindh Amendment) Ordinance, 1992 (Ordinance IV of 1992) repotted in (PLD 1993 Sindh Statue-2). In this regard he has referred the cases of Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others (1992 SCMR 1245) and Assistant Commissioner and Land Acquisition Collector, Badin through Additional Secretary (Revenue), Board of Revenue, Sindh v. Haji Abdul Shakoor through legal heirs and another (1996 CLC 2002).
4. We have heard the learned counsel for the parties, perused the case law cited at the bar and minutely examined the available record.
5. We are not inclined to dilate upon the question as to whether in the present case the petition for leave to appeal is competent or direct appeal under Article 185(2)(d) of Constitution should have been filed and other allied questions and we propose to decide this petition on the issue as to whether the petitioner, being beneficiaries for whose benefit and use the questioned land was acquired, has any right and locus standi, under the law, to file reference or appeal.
6. Admittedly, the questioned land was acquired for benefit and use of M/s Union Texas Pakistan, Inc., lately known as BP Pakistan Exploration and Production, Inc. (the petitioner) and thus it is beneficiary of the acquired land. Now the question arises as to whether a beneficiary of the acquired land has any right and locus standi to file a reference or appeal against the determination or/and enhancement of the compensation. Consistent view of this Court, till date, is that a beneficiary has no right to challenge the compensation awarded to the deprived owners of the acquired land by the competent Court. It appears appropriate to give resume of the case law on the subject which is to the following effect:--
(i) Pir Khan through his legal heirs v. Military Estate Officer, Abbottabad and others (PLD 1987 485).
This Court, in this case, has held that the award made by Land Acquisition Collector becomes final so far as a local authority or a company and that such authority or a company has neither right to ask for a reference under Section 18 of the Act nor a right to prefer an appeal against decision made upon a reference under Section 18. It appears appropriate to reproduce certain portions out of the said judgment which read as fellows:-- "From a perusal of the above provisions, it is manifest that Section 50(2) expressly and in terms controls Section 18 and takes away the right from the local authority or company for whom the land is being acquired to demand a reference under Section 18. According to sub-section (2) of Section 50 a local authority or a company is only conferred the right to appear in proceedings before the Collector or the Court and adduce evidence for the purpose of determining the amount of compensation but a reference under Section 18 by them is barred (vide the proviso to sub- section (2) of the Section 50). It is, therefore, manifest that whatever may have been the object of, the law, in view of plain language of Section 50(2), there is no alternative but to give effect to it.
Hence, so far as a local authority or a company is concerned, the award made by the Land Acquisition Collector becomes final; it has neither the right to ask for a. reference under Section 18, nor on a parity of reasoning, a right to prefer an appeal against a decision made upon a reference under Section 18 of the Act by the Court. The above legal position was firmly established by the decisions of the Courts of this country see the Pabna Electric Supply Co. Ltd. v. Kaliprashad Bhattacharyya & another (PLD 1960 Dacca 461), Kasimbhai and another v. The Deputy Commissioner, Dadu and others (PLD 1968 Karachi 126) and WAPDA through its Chairman v. Aurangzeb Khan and .others (PLD 1975 Peshawar 1), but the learned Judges in instant case have departed from this view on the ground that the situation has changed on account of this Court's judgment in H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65). In this case, it was held that a party which was adversely affected by an order passed in a suit or proceeding was competent to file an appeal against it even if it had not been impleaded as a party therein. We have considered the above reasoning of the High Court but are not persuaded to agree. In our view, the dictum in Saya's case (PLD 1969 SC 65) is not apposite in the facts and circumstances of the present case. Indeed this point was also discussed in WAPDA through its Chairman v.
Aurangzeb Khan and others (PhD 1975 Peshawar 1) and it was observed:-- Furthermore neither the Central. Government nor the Military Estate Officer can be deemed to be parties who have been adversely affected by the order of the Civil Court. If the Central Government or the Military Estate Officer could get the land in question more cheaply by private negotiations they can refused to accept the land at .the price determined by the Court. They cannot have it both ways. Having chosen to set in motion the special powers given to the Government to acquire land under the Land Acquisition Act for public purposes they are to be confined to those provisions and cannot claim further rights and higher privileges than those provided for under the provisions of the said Act. Since under the provisions of the Act only a special and limited appeal is provided for against the award of the Court, which in the facts and circumstances of this case would be availed of by the Provincial Government or the Collector, no other party, including the appellants herein could avail of a right of appeal. As neither the Provincial Government nor the Collector chose to file an appeal, the appeal filed by the Central Government and the Military Estate Officer was indeed an appeal filed by "strangers", having no locus standi to file if.
(ii) Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East), Karachi and others (1989 SCMR 812).
In this case a Bench comprising of five Hon'ble Judges of this Court while relying upon the case of Pir Khan through his legal heirs v. Military Estate Officer, Abbottabad (ibid) took the similar view and dismissed the appeal filed by the beneficiaries of the acquired land. The relevant 'portions of the said judgment are reproduced below:-- "The High Court in all these matters has answered this question in the negative relying on this Court's judgment in Pir Khan v. Military Estate Officer Abbottabad (PLD 1987 SC 485), wherein it was held that an order of the Civil Court on a reference made to it by the Land Acquisition Collector is final and cannot be challenged except by a party which has expressly been conferred the right of appeal. Since no such right is conferred upon a local authority or a Company for whose benefit the land is being acquired by the statute such a party cannot prefer an appeal against the decision made by the Civil Court upon a reference made under Section 18 of the Act".
"Insofar as the impugned judgments of the High Court in the above matters are founded on this Court's judgment in Pir Khan's case, no interference therewith is warranted".
(iii)Iftikhar Hussain Shah and other, v. Pakistan through Secretary, Ministry of Defence. Rawalpindi and others (1991 SCMR 2193).
In this case, a Bench comprising of seven Hon'ble Judges of this Court dismissed the appeals after coming to the conclusions that appeal filed by the Federal Government, its acquiring appartment or local authority, have no right to appeal to the High Court. Para-21 of the said judgment reads as follow:- "21. In view of the discussion above, the appeals are accepted, the impugned judgments/orders of the High Court are set aside and appeals filed by the Federal Government, its departments or local authority for whose benefit the land was acquired are held to have been filed by persons having no right to appeal to the High Court and all such appeals in the High Court are hereby dismissed with no order as to costs".
(iv) Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others (1992 SCMR 1245).
This Court while relying upon the cases of Pir Khan and Iftikhar Hussain Shah and others (ibid), has held that the local authority or a company on whose behalf the land is acquired by the Collector has no right to file an appeal against a judgment arising out of the reference under Section 18 of the Act. It would be advantageous to reproduce paras-9, 10 and 11 of the said judgment:- "9. It may be pointed out that because of the above proviso to sub-section (2) of Section 50 of the Act, it has been consistently held by this Court that the local authority or a company on whose behalf the land is acquired by the Collector, has no right to file an appeal against a judgment arising out of the reference under Section 18 of the Act. In this regard reference may be made to the case of Pir Khan through his Legal Heirs v. Military Estate Officers, Abbottabad and other; (PLD 1987 SC 485), wherein after referring to the relevant case-law, the following proposition of law was propounded.
10. In the above case, it has been held that though the land was acquired for the Central Government, but neither the Central Government nor the Military Estate Officers was competent to file an appeal under Section 54 of the Act but the special and limited right of appeal provided under the above provisions could be availed of by the Provincial Government or the Collector. If we were to agree with Mr. Abdul Hakeem Khan, it would mean that a judgment of a Referring Judge would be final as far as the authority or the company on whose behalf the land has been acquired, but the owner would have a right of an appeal, which would be against all canons of justice. The Collector in fact files an appeal as an agent for the authority or the company for whose benefit land is acquired.
11. The above view has been recently reiterated by a larger Bench of this Court, comprising 7 Judges, in the case of Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi (1991 SCMR 2193), in which one of us, namely, Shafiur Rahman, J., while rendering the judgment besides referring to the relevant case-law has succinctly, referred to the legislative history and the amendments brought about by the Provincial Legislatures in respect of appeal"..
(v) Pakistan through Military Estate Officer Kharian Cantt and another v. Hayee Khan through legal heirs and 5 other (PLD 1995 SC 418).
This Court while relying upon the cases of Pir Khan, Pakistan Steel Mills Corporation Limited (ibid) and Province of Punjab and others v. Naseer-ud-Din and others (1994 SCMR 2091) and on the basis of other judgments, referred to in the said judgment, has held that the right of appeal is a creation of statute and the appellant being beneficiary of land acquired had no right to challenge compensation given to the deprived owners of the land by the competent Court. It appears appropriate to reproduce para-7 of the judgment which reads as follow:-- "7. In the leave granting order reference has been made to the case of Government of Pakistan v.
Maulvi Ahmad Saeed and another Civil Appeal No, 389 of 1986 decided on 8.10.1991. In said case it was held on the authorities of Pir Khan PLD 1987 SC 485, Behram Khan 1988 SCMR 1160 and Pakistan Steel Mills Corporation Limited 1989 SCMR 812 that the Federal/Central Government, its departments, the local authority, a company or an institution, which is beneficiary of land acquired, is not competent to file an appeal under Section 54 of Land Acquisition Act against the decision of the Court on a reference under Section 18 of the Act".
(vi)Federation of Pakistan and another v. Abdul Hayee Khan and others (1996 SCMR 1389).
This Court relying upon the cases of Pir Khan, Pakistan Steel Mills Corporation Limited, Province of Punjab etc., Iftikhar Hussain Shah etc. (ibid) and referring to other cases as well on the subject has held that Federal Government being beneficiary of the land acquired had no right to challenge compensation given to the deprived owners of land. Para-10 of the judgment reads as follow:-- "10. It would be necessary to consider the case of Province of Punjab and others v. Naseer-ud-din and others (1994 SCMR 2091) cited by learned counsel for the appellant where Punjab Amendments in the Land Acquisition Act were considered. In the said case it was held that the right of making a Reference as well as filing of an appeal in so far as the Provincial Government is concerned, was not affected by the amendments introduced in the Land Acquisition Act. There was no observation in the said case enabling the Federal Government to file appeal against decision of the Court under Section 18 of Land Acquisition. Act".
(vii) Defence Department of Pakistan through Secretary Ministry of Defence v. Province of Punjab and another (2006 SCMR 402).
This Court relying upon the case of Pakistan v. Abdul Hayee (ibid), had held that a reference by the beneficiaries is not competent and no case for revisiting the view taken by a full Bench is made out.
Para-2 of the judgment reads as follow:- "2. Learned Deputy Attorney General contended that the Referee Court dismissed the reference without any legal justification. When his attention has been drawn towards the case of Pakistan v.
Abdul Hayee Khan (PLD 1995 SC 418), wherein it has been held that appellants being beneficiaries of the land acquired, had no right to challenge the compensation given to the deprived owners of the land by the competent Court, he stated that the view so taken by the Court is required to be revisited. We are not inclined to agree with the contention of learned Deputy Attorney General for the reason that Full Bench of this Court on having taken into consideration all attending circumstances of the case and the law on the subject, had formed the opinion that a reference under Section 18 of the Land Acquisition Act, 1894 before the Referee Court by a beneficiary, is not competent, therefore, no case for revisiting the earlier view taken by a Full Bench of this Court in reported judgment, is made out.
Thus, for the foregoing reasons, petition is dismissed".
(viii) Messrs Union Taxas Pakistan Inc. v. Ahmed and others (2007 CLC 1835).
Learned single Bench of Sindh High Court after taking into account almost all the judgments, referred to above, except the cases of Pakistan through Military Estate Officer and another and Defence Department of Pakistan through Secretary Ministry of Defence (ibid) has followed the view taken by this Court in number of judgments. Interestingly the petitioner in the present case and in the case before High Court Karachi is the same viz M/s Union Texas Pakistan Inc. It appears appropriate to reproduce paras-10, 11 and 12 of the judgment:-
10. After discussing the merits of the determination of compensation, this Court came across several decisions of the Honourable Supreme Court in which it is held that the local authority or the company for whose benefit land is acquired has no right or locus standi to question the determination of compensation by way of 'reference or appeal.
11. In the case of Pir Khan v. Military Estate Officer, Abbottabad and others, reported in PLD 1987 SC 485, which is held as follows:-- Since under the provisions of the Act only a special and limited appeal is provided for against the award of the Court, which in the facts and circumstances of this case would be availed of by the Provincial Government or the Collector, no other party, including the appellant herein could avail of the right of appeal. As neither the Provincial Government nor the Collect chose to file an appeal, the appeal filed by the Central Government and the Military Estate Officer was indeed an appeal filed by 'stranger', having no locus standi to file it.
13. This view of the Honourable Supreme Court was affirmed by another judgment in the case of Land Acquisition Collector Abbottabad and others v. Muhammad Iqbal and others, reported in (1992 SCMR 1245). Similar views have been taken in the case of Behram Khan and 54 others v.
Military Estate Officer and 2 2 others, reported in (1988 SCMR 1160); Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East), Karachi and others, reported in (1989 SCMR 812), ICA Pakistan Limited v. Salahuddin and others, reported in (1991 SCMR 15) and Iftikhar Hussain Shah and others u. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others, reported in.
(1991 SCMR 2193). Therefore the appellant i,e, Union Texas Pakistan Inc., being the company for 'whose benefit land was acquired has no locus standi to file the present appeal and hence cannot question the validity of the impugned judgment on any ground. The appeal is therefore dismissed as not maintainable".
7. It is evident from the above narrative that the consistent view of this Court is that a beneficiary of the acquired land has no right and locus standi to file reference or appeal against award of compensation to the deprived land owners. In view of the enormous case law on the subject, we are not persuaded to deviate from the established principle enunciated in the said judgments and reaffirm that a beneficiary of the acquired land has no right and locus standi to either file reference against the award of compensation or appeal against a judgment arising out of the reference under Section 18 of the Act.
8. Now adverting to the amending Ordinance i,e, Land Acquisition (Sindh Amendment) Ordinance 1992, referred to by the learned counsel for the petitioner. This Ordinance was promulgated by the Governor of Sindh in exercise of his powers under Clause (1) of Article 128 of the Constitution of Islamic Republic of Pakistan. Said Article of the Constitution empowers the Governor of a Province to promulgate an Ordinance when the Provincial Assembly is not in session and he is satisfied that existing circumstances require immediate action. Sub-clause (2)(a) of Article 128 of the Constitution, inter alia, provides that every such Ordinance shall be laid before Provincial Assembly and shall stand repealed at the expiration of three months from its promulgation. It appears that the said Ordinance (IV of 1992) was not laid before the Provincial Assembly and thus it could not attain status of an Act. To the best of our research, we have not been able to find out any statute on the book known as Land Acquisition Sindh Amendment Act, 1992. The Ordinance (IV of 1992) stood repealed at the expiration of three months from its promulgation and thus lost its efficacy on 6th October, 1992, as the life of an Ordinance under the Constitution is only 90 days. It is true that Ordinance (IV of 1992) does find mention in the judgment reported as Assistant Commissioner and Land Acquisition Collector, Badin through Additional Secretary (Revenue), Board of Revenue, Sindh v. Haji Abdul Shakoor through legal heirs and another (1996 CLC 2002) relied upon by the learned counsel of the petitioner, however, it appears that the aspect of repeal of the Ordinance was not brought to the notice of the Court. It may be noted that the said case was decided on 18.10.1992, but it was reported four years thereafter. Thus, the reliance of the learned counsel on the amending Ordinance and the cases of Assistant Commissioner and Land Acquisition Collector (ibid) is of no avail to the petitioner.
9. In the above perspective, we are of the firm view that, the petitioner being the beneficiary of the acquired land has no right and locus standi to file petition/appeal and we are persuaded to dismiss it on the said ground.
10.For the foregoing reasons and enormous case law on the subject, the present petition is incompetent and not maintainable under the law, thus, the same stands dismissed and leave to appeal is refused.