' ABDUR RAHMAN FARUQ PIRZADA, J.--- By this common order I propose to dispose of the above appeals, as they involve the common question of law.
2. The above appeals filed by WAPDA, are directed against the judgment dated 30-5-2007 passed by learned Court of Additional District Judge Tando Adam in various Land Acquisition References, thereby dismissing the references, being not maintainable on question of law and facts.
3. The facts of the case are that WAPDA intended to acquire property of private respondents/opponents for the purpose of installing tube-wells and drains under the project of LBOD. The WAPDA moved Revenue Authorities for the purpose of Land Acquisition process.
Consequently, the notification under section 4 of Land Acquisition Act was issued, which was published on 15-8-1991, and further proceedings ensued. Finally, the respective awards were passed on 20-6-2006. The acquiring agency viz. WAPDA, having not accepted the awards, directly filed references before the learned Referee Court on 1-12-2006, and the same were admitted on 12- 12-2006. The WAPDA had urged the grounds that Land Acquisition Officer had not followed the calculation and procedure of assessment of land, so also compensation as was previously being done, and unnecessarily allowed 25% solatium under section 23(2) of the Act, instead of 15%. An additional compensation at the rate of 15% per annum under section 28(a) of the Act and 6% additional interest under section 34 of the Act were also allowed. As per version of WAPDA, this unlawful exercise by the Land Acquisition Officer had caused huge loss to the acquiring agency and ultimately to the Government at large, to benefit the Khatedars/opponents.
4. Learned counsel for appellant, at the very outset, on being confronted with the question of competence of appellant/applicant to file the references, has conceded that the references directly filed by appellant/applicant before the Additional District Judge, Tando Adam, were not maintainable, in view of the judgment of Honourable Supreme Court as reported PLD 2008 SC 400.
Learned counsel for appellant has further stated that the present appeals filed by WAPDA through Project Director before this Court are also not maintainable, in view of the above cited judgment; however, he has filed an application on behalf of appellant under Order I rule 10 read with section 151, C.P.C, praying therein for transposing the respondent No,1 Land Acquisition Officer, as appellant.
He has contended that the Land Acquisition Officer was competent to move the reference before the referee Court or to file an appeal before this Court, in view of the provisions of section 18 of Land Acquisition Act.
5. Learned counsel for private respondents, has agreed with the above contention of learned counsel for appellant, to the extent that the appellant/applicant was not competent under the law to file direct reference before the referee Court or to file an appeal before this Court. Learned counsel for private respondents opposed the application under Order I, rule 10 read with Section 151, C.P.0 moved on behalf of appellant, on the ground that since the references filed by appellant/ applicant, as well as the present appeals are admittedly not maintainable under the law, as such no question of transposing respondent No,1 as appellant may arise. He has further submitted that the present appeals are themselves based upon the references, which were originally filed by appellant/applicant before the referee Court, and when the references themselves were not competent, then it will be simply superfluous to press the present appeals. Learned counsel for private respondents has contended that the proper course for appellant would be to approach the Deputy District Officer (Revenue)/Land Acquisition Officer, in order to persuade him to file the proper references in the above matters, and then it will be for the Deputy District Officer (Revenue)/Land Acquisition Officer to make a proper decision, as to whether he wants to file references in the matters or not.
6. I have considered the above submissions, made by the learned counsel for appellant, as well as learned counsel for private respondents. For the purpose of resolving the issue, it may be pertinent that the provisions of section 18(3) of Land Acquisition Act may be reproduced as under:--- "18. Reference to Court.---(1) .............................................................
(2) ........................................................................................
(a) ................................................
(b) .......................................................................................................................
West Pakistan.---After subsection (2), the following new subsection shall be added, namely:---
(3) Notwithstanding anything to the contrary contained in section 21, the Provincial Government may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award, provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for inquiry into and determination of the objection against the award."
7. It may be further pertinent to reproduce the provisions of section 50(2) of the Land Acquisition Act as under:--- "50. Acquisition of land at cost of a local authority or Company.- (1)
(2) In any proceedings held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation."
"Provided that no such local authority or Company shall be entitled to demand a reference under section 18."
8. It is clear from the above provisions of law that the beneficiary of acquired land is not competent to directly file a reference with regard to any award having been passed by the Deputy District Officer (Revenue)/Land Acquisition Officer, for acquiring the lands of private respondents.
9. While contesting the matter before the referee Court, learned counsel for the appellant/applicant had contended that section 50(2) of Land Acquisition Act had been amended by an Ordinance in year 1992 (Ordinance No,IV of 1992), as such the WAPDA had become competent under the law to file such references. However, as a matter of fact the said Ordinance was never brought before the Legislature for converting it into an Att. Resultantly, the Ordinance in question expired just after the lapse of three months, as such any benefit in the light of said Ordinance of year 1992 was never available to the appellant/applicant in year 2006. Respectfully, the reliance may be placed on the case of Pakistan through Military Estate Officer, Kharian Cantt.
And another v. Abdul Hayee Khan and others PLD 1995 SC 418, in which it was laid down as under:-- - "6. Section 54 of the Land Acquisition Act provided the forum of High Court for any appeal against the award or any part of it. Said section does not specify as to which of the parties e.g. Beneficiary of acquisition or owner of land acquired or acquiring authority, shall have right of appeal, However, a "local authority" or a "company" at whose cost the land is proposed to be acquired, shall not be entitled to demand a reference under section 18, vide the proviso below section 50 of said Act. The case of Pir Khan v. Military Estate Officer and others PLD 1987 SC 485 relates to said point. In said case it was held that section 50(2) of Land Acquisition Act 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 and consequently so far as a local authority or a company is concerned, the award made by the Land Acquisition Collector becomes final and it has neither the right to ask for a reference under section 18 nor a right to prefer an appeal against a decision made by a Court upon a reference made under section 18 of the said Act. In the case of Pakistan Steel Mills Corporation Ltd. v. Deputy Commissioner (East), Karachi and others 1989 SCM R 812 this Court declined to change its view earlier expressed in the case of Pir Khan PLD 1987 SC 485.
The case of Pir Khan was also referred in the case of Behram Khan and others v. Military Estate Officer and others 1988 SCM R 1160 where the view taken in the former case was reiterated. The bar contained in the proviso below section 50 is in respect of demanding a reference under section 18 of said Act. But, as observed in the case of Pir Khan, an order of the Civil Court on reference made to it by the Land Acquisition Collector is not an independent order, but merely a substitutive order, whereby the award of the Land Acquisition Officer is substituted by the order of the Civil Court, which order becomes the award. In the said case of Pir Khan, it was further observed that since by virtue of subsection (2) of section 50 of the Land Acquisition Act, the award made by the Land Acquisition Collector is final and cannot be challenged except by a party which has expressly been conferred the right of appeal, hence the Military Estate Officer and the Central Government, who did not have any such right expressly conferred on them, did not have any locus standi to file an appeal. These observations were reproduced with approval in the case of Behram Khan 1988 SCM R 1160."
10. In the case of B.P Pakistan Exploration and Production through Attorney v. Sher Ali Khawaja and another PLD 2008 SC 400, it was laid down as under:--- "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 me 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-clauses (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."
11. n the light of the above cited authorities of law as laid down by Honourable apex Court, it is crystal clear that under the provisions of law the appellant/applicant was not competent to file any reference, nor was competent to file the present appeals. The same fact has been fairly conceded by learned counsel for appellant himself. Since the references made before the referee Court were themselves not maintainable under the law, the subsequent appeals against the impugned judgment would also be the as not maintainable under the law. It is understandable that if the foundation stone for a judicial or quasi-judicial functionary to exercise its powers/authority is determined in negative, the whole edifice, built on such defective proceedings is bound to crumble down. Respectfully the reference may be made to the case of Khayber Tractors (Pvt.) Ltd. Through Manager v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad PLD 2005 SC 842, in which it was held as under:--- "The jurisdiction of a Court lays down a foundation stone for a judicial or quasi-judicial functionary to exercise its powers/authority and no sooner the question of jurisdiction is determined in negative, the whole edifice, built on such defective proceedings is bound to crumble down as held in the case of Pearey Lal v. Nanak Chand AIR 1948 PC 108, Pervez Iqbal v. Muhammad Hanif 1979 SCM R 367, Chief Settlement Commissioner v. Muhammad Fazil PLD 1975 SC 331."
12. So far as the application under Order I, rule 10 read with section 151, C.P.0 on behalf of appellant is concerned, the same is no more relevant in the attending circumstances, since the very references, as well as present appeals, have been held as not maintainable under the law.
Moreover, it will be for the respondent No,1/Land Acquisition Officer to take a decision in the matter, as to whether he actually chooses to file any such references before the competent Court.
Accordingly, the application under Order I, rule 10 read with section 151, C.P.C. Filed on behalf of appellant, being devoid of merits, is dismissed. However, the appellant will be at liberty to approach the Deputy District Officer (Revenue)/Land Acquisition Officer, with regard to its grievance, whereafter the Deputy District Officer (Revenue)/Land Acquisition Officer may take any appropriate measure in accordance with law.
13. In view of the foregoing facts and circumstances, the appeals are dismissed in limine.