' CH. IJAZ AHMED, J.---We intend to decide the aforesaid appeals by one consolidated judgment having similar facts and law.
2. Necessary facts out of which the present appeals arise are that lands of the private respondents/land owners situated in different villages were acquired by the Land Acquisition Collectors under the provisions of Land Acquisition Act, 1894 for the benefit of Civil Aviation Authority and National Highway Authority for construction of New Islamabad International Airport and Islamabad Peshawar Motorway Project (M-1). The Land Acquisition Collectors after completing legal formalities announced award dated 5-5-2005, 8-6-2000, 19-5-2004 and 19-12-1992. The land owners being aggrieved filed references in the Court of Senior Civil Judge, Attock and Senior Civil Judge , Rawalpindi respectively. The learned Refree Judges/Senior Civil Judges Attock and Rawalpindi accepted references and enhanced compensation vide judgments dates 3-10-2006, 3- 5-2007, 23-6-2008 and 25-7-2008. Appellants being aggrieved filed R.F.A. Nos 26/2008, 3/2007, 110/2008, a68/2008, 69/2008, 70/2008 and 71/2008 in the Lahore High Court Rawalpindi Bench, Rawalpindi. The learned High Court dismissed all the appeals vide impugned judgments dated 28- 5-2009, 19-5-2009, 30-6-2009 and 21-5-2009 respectively. The appeals were dismissed as being incompetent in view of the provisions of Sections 18 and 50 of the Land Acquisition Act 1894 in view of the dictum laid down by this Court in the following judgments:--
(1) Defence Department of Pakistan through Secretary M/o Defence v. Province of Punjab and another (2006 SCMR 402).
(2) BP Pakistan Exploration and Production through Attorney v. Sher Ali Khawaja and another (PLD 2008 SC 400).
(3) Pir Khan through his legal heirs v. Military Estate Officer Abbottabad and others (PLD 1987 SC 485).
' Appellants being aggrieved filed direct appeals under Section 54 of the Land Acquisition Act, 1894 before this Court which were fixed on 5-11-2009 and the following order was passed:-- "The point involved in the instant matters is, as to whether the beneficiary has right to appeal against the judgment of the Referee Court. The consistent view of the Court has been that such beneficiary has no right to appeal and instead the appeal is to be filed by the Land Acquisition Collector.
2. Such view, though consistent, is altogether contrary to the view taken by Shariat Appellate Bench of this Court in Shariat Appeal No,7/89, Muhammad Aslam Khan v. Jamil-ur-Rehman & others decided on 18-2-1991, the copy of which is produced by the learned counsel.
3. In the given circumstances, we believe that it is a case which must be referred to the Larger Bench and notice to Attorney-General for Pakistan be also issued, in order to assist the Court with regard to the jurisdiction of Shariat Appellate Bench vis-a-vis the Supreme Court. The files may be placed before Hon'ble the Chief Justice for constitution of Larger Bench.
4. Up to the date the case is fixed before the larger Bench, the payment of compensation in dispute is stayed."
3. Mr. Gulzarin Kiani, Advocate Supreme Court, submits that RFA No, 26/2008 (C.A. No, 766/2009) was filed by Land Acquisition Collector and four others. RFA No,3/2007 (C.A. No,767/2009) was filed by National Highway Authority through its Managing Director against the private respondents and also against the Land Acquisition Collector who was respondent No,12 R.F.A. No,110/2008 (C.A.
No,1061/2009 was filed by the Land Acquisition Collector and another. RFA No,68/2008 (C.A.
No,1018/2009) was filed by Civil Aviation Authority through Project Director, New Islamabad International Airport and Land Acquisition Collector, Civil Aviation Authority and another. R.F.A.
No,69/2008 (C.A. No,1019/2009) was filed by the Collector, Land Acquisition, Civil Aviation Authority R.F.A. No,70/2008 (C.A. No,1020/2009) was filed by the Collector, Land Acquisition, Civil Aviation Authority R.F.A. No,71/2008 (C.A. No,1021/2009) was filed by the Deputy Collector/General Manager (Land Acquisition. Collector), Civil Aviation Authority. He further submits that learned High Court had erred in law to dismiss R.F.A. No, 26/2008, R.F.A. Nos.68 to 71 and R.F.A. No,110/2008 except R.F.A.
No,3/2007 without adverting to the memo of the appeals. The appeals were filed through Land Acquisition Collector along with the beneficiaries for whose benefit the land in question was acquired whereas in R.F.A. No,3/2007 appellant had impleaded the Land Acquisition Collector as respondent No,12. It was thus the duty and obligation of the learned High Court to order transposition of respondent No,12 as co-appellant in the appeal to cure the defect of incompetency/maintainability of appeal. The appellant in the said appeal (C.A. No, 767/2009) had filed application before this Court under Order XXXIII, Rule 6 of the Supreme Court Rules read with Article 187 of the Constitution of the Islamic Republic of Pakistan for transposition of respondent No,12, Land Acquisition Collector National Highway Authority (M-1) Islamabad, as co-appellant in appeal. The judgments relied by the learned High Court are distinguished on facts and law. The judgments relied by the High Court in the impugned judgments could not take notice of the judgment of this Court dated 18-2-1991 decided by the Shariat Appellate Bench of this Court in Shariat Appeal No,7/1989 wherein it was declared that Sections 18(3) and (4),22-A and 54 of the Land Acquisition Act, 1894 as well as depriving a company or a local authority of the right of appeal in proviso to Section 50(2) of the Act are repugnant to the Injunctions of Islam. .
' The Shariat Appellate Bench further directed that the necessary amendments shall be made before 30th of September, 1991. The Province of Sindh and Balochistan had amended Land Acquisition Act whereas the province of the Punjab failed to amend the aforesaid provisions of the Land Acquisition Act till date. This fact was not considered in the aforesaid judgment and the learned High Court had erred in law to dismiss the appeals as incompetent. The Judgment of the Shariat Appellate Bench was considered by the Division Bench of the Quetta High Court and Peshawar High Court and laid down a law that appeals filed by the beneficiaries are maintainable.
In support of his contention he has relied upon the following judgments.
(1) Military Estate Officer Quetta Circle, Quetta Cantt v. Assistant Commissioner Cum Collector Quetta and 4 others (1997 CLC 556)
(2) Director (IS & ML) N.-W.F.P. v. District Land Acquisition Collector and others (PLD 2004 Pesh. 44).
(3) Haji Muhammad Pervez and 3 others v. Engineer Azizullah Khan and 4 others (PLD 1999 Peshawar 53).
' He had produced a letter dated 20-9-2004 under the heading "Requisition of services of Mr. Mushtaq Ahmad, Tehsildar, from WAPDA Circle-1, Lahore, as Tehsildar (LAC), National Highway Authority, Islamabad" issued by the Principal Secretary to Chief Minister stating therein that Chief Minister has been pleased to approve that services of Mr. Mushtaq Ahmad, Tehsildar, WAPDA Circle-1, Lahore, may be requisitioned to be placed at the disposal of National Highway Authority, Islamabad, for posting as Tehsildar/LAC and further necessary action may be taken accordingly. In obedience to the said directive the Secretary to Government of the Punjab Revenue Department issued notification dated 28-9-2004 whereby the said officer was transferred and posted as Land Acquisition Collector, National Highway Authority, Islamabad against vacant post with immediate effect in the public interest. On the basis of the said letter and notification the learned counsel submitted that appeals filed by the appellant before the High Court were maintainable.
4. Sardar Asmatullah Khan, learned Advocate Supreme Court had adopted the arguments of Mr. Gulzarin Kiani, leraned Advocate Supreme Court. He further urged that all the appeals were filed by the Land Acquisition Collector alongwith the authority of Civil Aviation Authority which were competently filed and the appeals are maintainable before the High Court. Therefore, learned High Court had erred in law to dismiss the appeals as incompetent.
5. The learned counsel for the respondents have supported the impugned judgments and submitted that impugned judgments are in consonance with the law laid down by this Court in various pronouncements. In support of their contentions they have relied upon the following judgments:-
(1) Pir Khan through his legal heirs v. Military Estate Officer Abbottabad and other (PLD 1987 SC 485).
(2) Iftikhar Hussain Shah and others v. Pakistan through Secretary Ministry of Defence Rawalpindi and others (1991 SCMR 2193)
(3) Land Acquisition Collector Abbottabad and others v. Muhammad Iqbal and others (1992 SCMR 1245)
(4) Pakistan Atomic Energy Commission and others v. Land Acquisition Collector and others (2008 SCMR 1280)
(5) BP Pakistan Exploration and Production through Attorney v. Sher Ali Khawaja and another (2008 SC 400)
(6) Defence Department of Pakistan through Secretary M/o Defence v. Province of Punjab and another (2006 SCMR 402)
(7) Pakistan through Military Estate Officer Kharian Cantt. And another v. Abdul Hayee Khan through Legal Heirs and 5 others (PLD 1995 SC 418)
(8) Federation of Pakistan and another v. Abdul Hayee Khan and others (1996 SCMR 1389)
' They further urge that three Hon'ble Judges of this Court who had decided the Shariat Appeal No,7/1989 in Shariat Appellate Bench of this Court were also members of seven members bench who had decided Iftikhar Hussain Shah's case (supra) therefore, the reliance of the appellants on the unreported judgment of Shariat Appellate Bench cannot support the cause of the appellants on the following reasons:
(1) The judgment of the larger Bench has preference over the smaller Bench in case of difference between the two judgments.
(2) Shariat Appellate Bench decided the Shariat Appeal No,7/1989 on 18-2-1989 whereas seven members Bench had decided the Iftikhar Hussain's case supra subsequently on 28-7-1991. They heavily relied upon para 16 of the judgment in Iftikhar Hussain Shah's case wherein the relationship of principal and agent as between Federal Government and the Provincial Government on the basis of the Constitutional provisions or on the basis of section 3 (b) of the Act does not come into existence.
6. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce the relevant provisions of the Land Acquisition Act, 1894 amended from time to time and notification on the subject to resolve the controversy between the parties:-
3. Definitions.---
(c) the expression "Collector" means the Collector of a district and includes a Deputy Commission and any officer specifically appointed by the Provincial Government to perform the functions of a Collector under this Act.
18. Reference to Court.---
(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 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".
(4) 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 and determination of the objection against the award."
(22-A). Cross-ob'ection.
' The Provincial. Government or a local authority or a company for which land is being acquired, may lodge a cross-objection to the objection made by any person interested and the Court may reduce the amount awarded by the collector if it considers it just and proper."
(50) Acquisition of land at cost of a local authority or company--- 11
(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.
(54) Appeal in proceedings before Court. --Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award , of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof.
7. It is pertinent to mention here that out of the aforesaid sections, sections 18(3) and (4), 22-A, 54 of the Land Acquisition Act as well as depriving a company or a local authority of the right of appeal in Proviso the section 50(2) of the Act are repugnant to the injunctions of Islam as held by the Shariat Appellate Bench of this Court vide judgment dated 18-2-1991 in Shariat Appeal No,7/89.
A cutoff date was fixed by the Shariat Appellate Bench for the competent bodies for necessary amendment in the aforesaid sections till 30-9-1991. The Shariat Appellate Bench further held as under:-- "The proposed amendments would advance remedy to an aggrieved party. It would be fair and just to give a right to make a reference, file a cross-objection, lead evidence and file an appeal to those parties who have been denied such a right under sections 18, 22-A, 50 and 54 of the Land Acquisition Act.".
' As stated by the learned counsel for the parties that province of the Punjab had not yet amended the said provision in accordance with the directions of the Shariat Appellate Bench judgment dated 18-2-1991 in Shariat Appeal No,7/1989. According to Article 203-D, (3)(b) if any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, such law or provision shall to the extent to which it is held to be so repugnant cease to have effect on the day on which the decision of the Court takes effect. The aforesaid provisions mentioned herein above which were declared against the injunctions of Islam after 30th September, 1991. The aforesaid provision of Land Acquisition Act including provision of section 50(2) of the Act barring right of appeal to Federal Government /beneficiaries shall cease to have effect, therefore, now after the cutoff date the Federal Government/beneficiaries have a right to file an appeal, as per judgment of the Shariat Appellate Bench. This fact was not noted by the learned High Court while rendering the impugned judgments. It is settled principle of law that a Judge must wear all the laws off the country on the sleeve of his robe and failure of the counsel to properly advise Court is not complete excuse in the matter as law laid down in Muhammad Sarwar v. The State (PLD 1969 SC 278). This Court had noted various amendments made in section 18 of the Land Acquisition Act from time to time in Province of Punjab through Collector, Rawalpindi and 2 others v. Naseer-ud-Din and 13 others (1994 SCMR 2091) which are reproduced hereunder:-- "19. There have taken place very many amendments in section 18 of the Act resulting in consequently amendments. How these amendments and their repeal has taken place, and their effect, is very relevant and instructive for the purpose of these proceedings. It was the Province of Punjab which by Act XII of 1954 added subsection (3) to section 18 of the Act in the following words:- -
(3) Notwithstanding anything to the contrary contained in section 21, the provincial government or a local authority or a company for which land is being acquired 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 enquiry into and determination of the objection against the Award'."
' The same Act (ACT XII of 1954) also introduced a new section 22-A) in the following words:-- "22-A. Cross-objection,--The Provincial Government or a local authority or a company for which land is being acquired may lodge a cross objection to the objection made by any person interested and the Court may reduce the amount awarded by the collector if it considers it just and proper.".
' President's Act IV of 1957 modified subsection (3) to section 18 of the Act introduced by the Punjab Act XII of 1954 so as to delete from therein or a local authority or a company for which land is being acquired' leaving only the Provincial Government in the field. What was accomplished by President's Act IV of 1957 was repealed by the West Pakistan Act XXVII of 1958. By Ordinance No, XIV of 1968, for the areas of Punjab, subsection (3) to section 18 section 22-A were added as hereunder:--
(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 enquiry into and determination of the objection against the award.
22-A. Cross Objection.-- The Provincial Government or a local authority or a company for which land is being acquired may lodge a cross objection to the objection made by any person interested and the Court may reduce the amount awarded by the Collector if it consider it just and proper."
' Then, West Pakistan Ordinance XLIX of 1969 enacted for the whole of West Pakistan subsection (3) to section 18 followed by an amendment in section 20 and introduced section 22-A, in the following words:- "(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 enquiry into and determination of the objection against the award.
' In section 20 of the said Act, in clause (c), between the word "Collector" and the full-stop at the end, the words and commas and the Department of Government, local authority or Company, as the case may be, for which land is being acquired" shall be inserted."
"22-A. Cross Objection,-- The Provincial Government or a local authority or a company for which land is being acquired may lodge a cross objection to this objection made by any person interested and the Court may reduce the amount awarded by the Collector if it considers it just and proper."
' A consequential amendment to give effect to the right of the Provincial Ordinance XLIX of 1969.
This ordinance XLIX of 1969 was made into West Pakistan Act III of 1969 and the same was repealed by Ordinance No, VI of 1971. The language used was somewhat unusual as hereunder:-- "Repeal of W.P. Act, III of 1969.---The Land Acquisitions (West Pakistan Amendment) Act, 1969, is hereby repealed and shall be deemed never to have been enacted, and the amendment effected thereby in the Land Acquisition Act, 1894 (Act 1 of 1894), shall be deemed never to have been effected."
' In the N.-W.F.P., Ordinance No,XI of 1972 was enforced which omitted subsection (3) of section 18, mandating the abatement of any pending Reference made by the Provincial Government, and so was an appeal by or on behalf of the Provincial Government pending in any High Court or Supreme Court on a Reference made by the Provincial Government under subsection (3) of section 18 to abate forthwith. It was in 1978 that in the N.-W.F.P. By Ordinance XVI of 1978 a subsection (4) was added to section 18 in the following words:-- "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 enquiry and determination of the objection against the award.
20. In The N.-W.F.P. The right of the Provincial Government and of the Provincial Government alone, apart from the affected land-owners, has been recognized in the matter of filing a Reference, which right has been denied by express words of section 50(2) of the Act to the local authority or company for whose benefit the acquisition is made. Since 1978, the Province of N.-W.F.P., a right of Reference and consequently of appeal is available to the Provincial Government as the expression government in the Provincial Statute would imply a Provincial Government and not the Federal Government.
' Notification dated 3-2-1987 issued by the Government of Punjab was also noted in the said judgment whereby the Governor of the Province in the exercise of his power under section 3(c) of the Act, conferred powers of Collector under the Act on Land Acquisition Collector (G.S.C.) WAPDA, and he was further authorized to exercise these powers within the limits of Province of Punjab subject to the control of collector(s) of the districts with effect from the date of issue of the Notification. Letter dated 19-8-1963 was also noted in the aforesaid judgment whereby the ' Land Acquisition Officers appointed by the Government in WAPDA were placed directly under the control of Deputy Commissioners concerned, both administratively and judicially and that the office accommodation was also provided within the premises of the office of the Deputy Commissioner. After considering the aforesaid amendments, notification and instruction the following observations were made:-- "In the meanwhile another development has taken place. Several appeals including two civil Appeals Nos.242 and 538 of 1990 filed by the Land Acquisition Collector came up for hearing before this Court. They were decided on 24th March, 1992. After analyzing the two judgments of this Court in the cases of PIR Khan PLD 1987 SC 485 and Iftikhar Hussain's case 1991 SCMR 2193, the question, as to whether, an appeal filed by the Collector would have met the objection as to the competency was also extended and it was held that the appeal by the Collector would be competent.
Accordingly, two Civil Appeals Nos. 242 and 538 of 1990 were not only considered on merits but also allowed. While doing so, the objection as to the maintainability of the R.F.As before the High Court was not found sustainable.
' In view of the aforesaid observation in the case of Central Government of Pakistan and others v.
Suleman Khan (Supra), we are of the view that R.F.A No,19 of 1991 filed by the land Acquisition Collector was also competent. We, accordingly, allow Civil Appeal No,267 of 1992 also, set aside the impugned judgment of High Court and remand the case to High Court for decision of the appeal in accordance with the law. In the circumstances of the cases, there will be no order as to costs."
7-A. It is settled principle of law that judgment of the Shariat Appellate Bench of this Court dated 18-2-1991 in Shariat Appeal No,7/89 has been competently rendered by Shariat Appellate Bench therefore no Court or tribunal including the apex Court can entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or the decision of the Shariat Appellate Bench or vary in any way its judgment/order that it shall have effect as from 30-9-1991 as law laid down by this Court in various pronouncements. See Mst. Aziz Begum and others v.
Federation of Pakistan and others (PLD 1990 SC 899).
8. In view of what has been discussed above , we approve and uphold the view laid down by the Quetta High Court and Peshawar High Courts in the following judgments which is in accordance with the command of Article 203-D(3)(b) of the Constitution:--
(1) Military Estate Officer Quetta Circle, Quetta Cantt. v. Assistant Commissioner Cum Collector Quetta and 4 others (1997 CLC 556)
(2) Director (IS&ML) NWFP v. District Land Acquisition Collector and others (PLD 2004 Pesh. 44).
(3) Haji Muhammad Pervez and 3 others v. Engineer Azizullah Khan and 4 others (PLD 1999 Peshawar 53)
' The appeals were filed by the appellants in the High Court after the cutoff date, prescribed in the judgment of Shariat Appellate Bench of this Court, therefore, the learned High Court has erred in law that appeals were incompetent except one appeal wherein Land Acquisition Collector was Respondent No,12 as law laid down by the Lahore High Court in Province of Punjab through Collector, Muzaffargarh and 2 others v. Muhammad Ramzan and 47 others (2001 MLD 459). The relevant observations is as follows:- "Adverting now to the contention of the learned counsel for the respondents that WAPDA could not file the present appeals before this Court suffice it to observe in that context that in the present appeals the Province of Punjab through collector Muzaffargarh as well as the Land Acquisition Collector, WAPDA are also co-appellants of WAPDA and, therefore, even if WAPDA is taken out of the array of appellants still present appeals have been competently filed by the Province of Punjab and the Land Acquisition Collector."
' The said view is also in consonance with the law laid down by this Court in Central Government of Pakistan and others v. Suleman Khan and others (PLD 1992 SC 590 at 593). The relevant para is reproduced herein below:-- "After analyzing the two judgments of this Court in the cases of Pir Khan PLD 1987 SC 485 and Iftikhar Hussain's case 1991 SCMR 2193, the question, as to whether, an appeal filed by the Collector would have met the objection as to the competency was also examined and it was held that the appeal by the collector would be competent."
It is settled principle of law that Division Bench has to follow the earlier judgment of equal number or refer the matter to the Hon'ble Chief Justice for constitution of larger Bench as law laid down by this Court in Multilane Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423) Appellants had filed application for transposition of respondent No,12 as co-appellant. The application is allowed in terms of the law laid down by this Court in Central Government of Pakistan and others v.
Suleman Khan and others (PLD 1992 SC 590). The relevant observations are as follows:-- "Not only this it is now well-settled that under Order XLI, Rule 33, C.P.C. That the High Court and under Order XXXIII, Rule 5 of the Supreme Court Rules this Court, can exercise the appellate powers in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection. See Province of West Pakistan through Secretary Revenue Department, Lahore v. Associated Hotels of India Ltd. 1973 SCMR 367. It is clear that what can be done under Order I, Rule 10, C.P.C. For purpose of transposition on an oral request or specific application, can also be done by the Court concerned suo motu without any application."
9. In view of what has been discussed above all the appeals are accepted. Consequently the impugned judgments are set aside meaning thereby that appeals filed by the appellants shall be deemed to be pending adjudication before the learned High Court and the High Court will decide the appeals filed by the appellants on merits in accordance with law. The partiers are directed to appear before the Lahore High Court, Rawalpindi Bench, Rawalpindi, within a period of two weeks after receipt of the judgment of this Court. The Deputy Registrar of Lahore High Court, Rawalpindi Bench, Rawalpindi, is directed to fix the cases before appropriate Bench immediately after receiving the judgment. Being conscious regarding long pendency of the matter we hope that learned High Court shall decide the matter, even on day to day basis within a period of two months preferably after receipt hereof.