' ANWAR ZAHEER JAMALI, J.---These civil review petitions, seeking review of the judgment dated 16- 4-2008, passed by this court in Civil Appeals Nos.91 to 93 of 2001, are being disposed of by this common order.
2. In a nutshell, facts relevant for the disposal of these review petitions are that the judgment dated 19-11-1997, passed by a learned Division Bench of Lahore High Court, Rawalpindi Bench in some land acquisition appeals regarding determination of compensation of acquired land, was challenged by the petitioners through above referred three appeals. In these cases, leave to appeal was granted by this Court, vide its common order dated 4-1-2001, inter alia, to examine whether the compensation at the rate of Rs,4000 per kanal, awarded by the Court of Senior Civil Judge, Mianwali vide its judgment dated 22-10-1989, maintained by the High Court in its impugned judgment, was adequate, keeping in view the relevant factors as required to be considered under section 23 of the Land Acquisition Act 1894 (in short the Act).
3. However, later on these appeals were dismissed, vide judgment under review, with the following observations:--- "(4) Admittedly, there are two types of appeals viz. First are the statutory appeals and the second are appeals under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973. The present appeals are under section 54 of the Land Acquisition Act, are direct appeals for which no petition for leave to appeal is required. This Court while granting leave has not considered this aspect of the case as the respondents were not represented. Petitions under Article 185(3) of the Constitution can be converted into appeals where statutory provision is not applicable. In the case in hand _these appeals are direct appeals under section 54 of the Land Acquisition Act which are time- barred and cannot be entertained. Keeping in view the location as well as the structure of the property the price fixed by the Referee Judge is quite reasonable.
(5) In view of all these factors, the impugned judgments of the learned Division Bench of the High Court are based on sound and plausible reasons leaving no room for interference by this Court, Therefore, these appeals are hereby dismissed."
4. In the review petitions, the only grievance voiced by the petitioners, is that the question of limitation, which found favour of this Court in its judgment under review, was not taken into consideration by this Court in its true perspective, thus, it was liable to be reviewed on this account.
5. In this regards, at the outset, Malik Noor Muhammad Awan, learned counsel for the petitioners has given some relevant dates about obtaining the certified true copies of impugned judgment from Lahore High Court, Rawalpindi Bench. He conceded to the position that in case the petitioners had to invoke remedy of direct appeal to the Supreme Court then these appeals having been filed beyond the prescribed period of thirty days were time-barred. However, he urged that once leave to appeal was granted in these matters, these appeals could not have been dismissed as time barred, as delay in the filing of appeals was deemed to have been condoned or in the alternative it could have been condoned in the larger interest of justice. To fortify his submission, he made reference to the provisions of section 54 of the Act read with sections 109 & 110, C.P.C., and placed reliance on the following cases:---
(i) Abdur Rauf Khan v. Land Acquisition Collector (1991 SCM R 2164), (ii) Chairman, N.-W.F.P. Forest Development Corporation v. Khurshid Anwar Khan (1992 SCM R 1202), (iii) Hyderabad Development Authority v. Abdul Majeed (PLD 2002 SC 84), (iv) Taza Gul v. Fazal Subhan 2006 SCM R 504) (v)
Zulfiqar v. Shahadat Khan (PLD 2007 SC 582).
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6. Scanning of above cited cases, goes to show that in the case of Abdul Rauf Khan (supra), a bunch of petitions, arising out of land acquisition cases, was taken up for hearing to examine the availability of remedy of direct appeal under sub-clause (d) of clause (2) of Article 185 and petition for leave to appeal under clause (3) of Article 185 of the Constitution, and in this context, it was held that if a party looses his right to file a direct appeal because of the limitation, he may invoke Article 185(3) of the Constitution for a petition for leave to appeal, which the Court may either grant or decline, either on the ground that the party should have availed remedy of a direct appeal or for the reason that the petition for leave to appeal has no merits. In the case of Chairman, N.-W.F.P.
Forest Development Corporation (supra), the provisions of Order XII rule 2 of the Supreme Court Rules, 1980, providing thirty days time for filing of appeal, and section 109 C.P.C., providing for remedy of appeal before Supreme Court, were taken into consideration by the Court to examine the question of limitation for the purpose of filing of direct appeal before the Supreme Court, and it was held that the Supreme Court, acting under the rules framed by virtue of the constitutional powers, was not bound to follow any statutory dispensation, which comes in conflict with the independence of judiciary, thus, it was not even bound by the provisions of C.P.C. Or Cr.P.C. Insofar as the regulation and control of practice and procedure of the Supreme Court itself was concerned. However, in this case, on oral request of the learned counsel for the department to convert the appeal in to a petition for leave to appeal and allow the same, reconverting it into appeal, was allowed after hearing both the learned counsel and in this background it was observed that the question of limitation, in such circumstances, has lost its significance. In the case of Hyderabad Development Authority (supra), examining the question of condonation of delay in a land acquisition matter, it was observed that where on merits respondent had no case then limitation would not be a hurdle in the way of appellant for getting justice as in such cases Courts should not be reluctant in condoning the delay, depending upon the facts of the case under consideration. In the case of Taza Gul (supra), dealing with the question of condonation of delay in a civil matter, it was held that in a case where the petitioner was neither guilty of negligence or recklessness in prosecuting his remedy before the Supreme Court and the office has also not raised objections as to limitation and maintainability of the petition on that account, condonation of delay would be justified. In the case of Zulflqar and others (supra), the golden principle of administration of justice, that the act of the Court shall not prejudice any one, was affirmed and at the same time, it was also observed that expiry of period of limitation having the effect of creating a valuable right in favour of opposite party, is subject to discretion of the Court.
7. Learned counsel Malik Noor Muhammad Awan also contended that the question of condonation of delay in the filing of appeal in such cases was squarely dependent upon the merits of each case, thus, looking to the genuine claim of the petitioners, and taking into consideration the ing order, it was a fit case for condonation of delay, if any, in the filing of the appeals, but, this aspect of the case was not properly adverted to by the Honourable Bench of this Court, while passing its impugned judgment under review. As regards Civil Review Petition No,76 of 2008, further submission of the learned counsel was that on the criterion laid down under section 110, C.P.C.
Regulating the remedy of second appeal, no right of appeal was available to the petitioner in the said case due to the lesser valuation of the subject matter of that appeal, thus, even otherwise, a petition for leave to appeal in the said case was competent, In the same context, making reference to the case of WAPDA v. Saadullah Khan, (1999 SCM R 319), Malik Noor Muhammad Awan also contended that despite omission of section 110 from the CPC, it has remained part of section 54 of the Act, therefore, such omission would not change the position about the right of appeal conferred under section 54 of the Act.
8. Raja Muhammad Ibrahim Satti, learned counsel for the respondents, in his submissions, firstly, invited our attention to the two concluding paragraphs of the judgment under review, to question the maintainability of these review petitions moved only to seek review of the findings in the judgment on the point of limitation qua condonation of delay. According to him, since disposal of all the three appeals was made by the Hon'ble Bench of this Court, not only on the point of limitation, but also on merits, therefore, judgment under review was not open to question through these petitions, on the sole ground of limitation. About the mode of availing the remedy of appeal under section 54 of the Act, learned counsel made reference to the language of said section read with Order XLV, C.P.C. To show that in the appeals preferred before the Apex Court against the judgments in appeal passed by the High Court in land acquisition cases preparation of decree was not required, as for the purpose of appeal the judgment itself was a decree, in view of the clear language of Order XLV, rule 1, C.P.C. To fortify this submission, he placed reliance on the case of Imtiaz Ali v. Atta Muhammad (PLD 2008 SC 462). In this case, making reference to the provisions of order XII, rule 2 of the Supreme Court Rules 1980 and Order XLV, rule 1, C.P.C., it was held that, if a judgment has been delivered, that can easily be challenged through filing of appeal in Supreme Court according to the above indicated rule, as the law has not bound down the appellant to file appeal against a decree only. The period spent waiting for the preparation of decree, therefore, cannot be exempted. Further a distinction was to be kept in view with regard to a case, wherein an appeal cannot be filed without decree and has mandatorily to be filed against a decree, and those cases in which appeal can be filed even against the judgment/order only. In the former case, period consumed in the preparation of decree would be allowed while in the latter case, the period of limitation would commence with the birth and announcement of the judgment/order to be appealed against.
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9. Mr. Satti also made detailed reference to the judgment of this Court in the case of WAPDA (supra), which, according to him had furnished complete reply to each and every contention of the petitioners, raised in these review petitions. Lastly Mr. Satti highlighted the limited scope of review to show that discretion once exercised judiciously by this Court was not open to question in review.
10. We have carefully considered the submissions of the learned counsel noted above, and minutely perused the case record as well as the case law cited at the Bar. Indeed, in some of the cases cited by Malik Noor Muhammad Awan, the question of condonation of delay in filing of appeal in the land acquisition matters vis-a-vis the scope of appeal under section 54 of the Act has been examined and a liberal view has been taken in those cases, where the appellant was found to have a good arguable case on merits. However, the most appropriate citation, which covers all the material aspects of the case involved in these review applications is the case of WAPDA (supra), which, inter alia, lays down as under:--- "(13) Land Acquisition Act, 1894 is a complete Code as regards acquisition of land, making of reference under section 18 thereof in case there is dispute about adequacy of compensation to be awarded for the acquired land to the owners thereof etc., and the decisions/judgments passed by the Court on such reference, The said section is also a complete Code as regards remedies of an aggrieved person against the said judgments passed by the Courts and section 54 provides that an appeal would lie to the Supreme Court against the judgment of the High Court passed in those proceedings of course with reference to section 110, C.P.C. If no appeal is filed as provided in this section, the legal consequence to follow is that the judgment and decree would become final as regards the said Act and would be enforced and given effect to.
(14) No doubt that section 54 of the Land Acquisition Act provides that the procedure as regards appeal under it would be regulated with reference to section 110, C.P.C. From a bare reading of section 54 of the Act, it is clear that section 110, C.P.C. Is not to override or control the substantive provision of the section as regards remedy of appeal itself but it only provide that the procedure to be followed for filing the appeal would be the same as provided in section 110, C.P.C. Which merely lays down certain matters as regards value of the subject-matter etc.
(15) The argument of the learned counsel for the petitioners is based on the erroneous assumption of law that with the omission of section 110, C.P.C. From the present statute by way of amendment, the same stands automatically omitted and repealed from section 54 of the Land Acquisition Act, 1894 and was no more part of the same and applicable. Section 110, C.P.C. Had been legislated by way of reference in section 54 of the Act, therefore, the same shall be deemed to have been incorporated in the said section as it was part of C.P.C. On the date of its incorporation and would continue to be the part of section 54 thereof till the said section itself is amended and reference to section 110, C.P.C. Is omitted. Mere omission of section 110, from C.P.C. Would not automatically operate and its omission from section 54 of the Land Acquisition Act. Even if it be assumed for the sake of arguments that with the repeal of the said section from C.P.C., it cannot be read as part of section 54 of the Act, the same in our calculated opinion would not render ineffective the substantive provision of remedy of appeal as provided in the said section rather the appeal would lie without fulfilment of any condition as prescribed by section 110, C.P.C. It could not be maintained by the learned counsel for the petitioners on the basis of accepted principles of interpretation of statutes that by omission of section 110, C.P.C., as argued the remedy of appeal itself had been frustrated or destroyed.
(16) In the light of the above discussions and the scrutiny of the different provisions of different laws and in particular Articles 175(2) and 187 of the Constitution, we are of the firm view that in this case, the remedy of the petitioners was to file appeal under section 54 of the Land Acquisition Act, 1894 and these petitions are not maintainable on that account."
11. Thus, it will be seen that after the omission of section 110, C.P.C., the rigors of said provision of C.P.C., applicable to appeals under section 54 of the Act have been diluted, therefore, in Civil Appeal No,92 of 2001, which is subject matter of Civil Review Petition No,76 of 2008, also remedy of direct appeal under section 54 of the Act was the proper remedy, which was not availed in time.
12. Admittedly, on computation of period of limitation for the purpose of direct appeal under section 54 of the Act, from the date of impugned judgment dated 19-11-1997, till the filing of these petitions for leave to appeal on 16-10-1998, (excluding the period lawfully consumed in obtaining certified true copies of judgment), it is evident that it stood expired much earlier. Thus, following the ratio of judgment in the case of WAPDA (ibid), dismissals of these appeals through the judgment under review were in accordance with law and not open to review. Again, the question of condemnation of delay was discretionary in nature, which this Court has declined to exercise in favour of petitioners as there was even no application for condemnation of delay moved by the petitioners.
In any case, such exercise of discretion by this Court, being made judiciously, is not open to review.
13. Besides, we are in agreement with the arguments of Mr. Satti that disposal of three appeals, vide judgment under review dated 16-4-2008, was also made, keeping in view the merits of the case, thus, on this count too no case for its review is made out.
14. For the foregoing reasons, listed civil review petitions are dismissed.