KHALIL-UR-REHMAN RAMDAY, J. --- This judgment will dispose of two different sets of appeals which were ordered to be clubbed and heard together through an order of this Court dated 2.11.2009.
However, since some of the factual aspects leading to the said two sets of appeals are somewhat different, therefore, the same are being treated differently except to the extent where they involve common questions of law.
CIVIL APPEALS NOS. 268 AND 942 OF 2009:
2. These two appeals emanate from the acquisition of land for the construction of Islamabad/Peshawar Motorway vide an Award of the Land Accusation Collector bearing No. 14.2 dated 23.10.2003. Some of the landowners raised objections to the rate of compensation determined through the said award and prayed for enhancement of the same which matter ultimately reached the Referee Court i.e. a learned Additional District Judge at Nowshera who, through his judgment dated 11.12.2006, enhanced the same from. Rs. 108.90 per marla to Rs. 7000/- per marla. At this stage, one of the non-objecting landowners namely, Amir Khan respondent also jumped in and filed an Objection Petition under Section 18 of the Land Acquisition Act, which was, however, dismissed being barred by time. The said Amir Khan respondent and six other non-objecting landowners claim to have then approached the relevant Land Acquiring Authorities praying that since the value of the land in question had been determined by a Court of competent jurisdiction as being Rs. 7000/- per marla and since nope had questioned the said determination before any higher forum which had consequently attained finality, therefore, obeying the dictates of justice and fair-play, the said non- objecting landowners whose only fault was that they had decided not-to drag the concerned authorities to the Courts of law, should also be paid compensation in accordance with said judicial determination. Complaining that the said executive authorities who were legally and morally obliged to do justice to all concerned, had refused to grant to the said landowners what was rightfully due to them, they approached the Peshawar High Court through Writ Petition No. 634 of 2007 seeking redress of their grievance and the resultant dispensation of justice to them.
3. One Mst. Shamshad Begum who was also one of the landowners, whose land had also been acquired through the same above-mentioned Award No. 142 for the same above-mentioned purpose, also filed a Writ Petition No 856 of 2007 in the same Peshawar High Court for the same above-noticed relief.
4. The above-mentioned Writ Petition No. 634 of. 2007 came up before a learned Division Bench of the Peshawar High Court which learned Bench relying upon two judgments of this Court reported as 1998 SCMR 2197 (M. Sarwar Khan and others v. Government of Pakistan and others) and NLR 1999 (Rev.) 137 1999 SCMR 2009 (Suleman and others v. Land Acquisition Collector, Abbottabad and others) allowed the said writ petition and found that since the value of the land in question stood determined by a Court of law, therefore, the Land Acquiring Authorities were bound to pay compensation to all the landowners of such acquired area of land in terms of the said determination irrespective of the fact whether those landowners had or had not raised objections in terms of Section 18 of the Land Acquisition Act.
5. The Writ Petition filed by Mst. Shamshad Begum was also allowed through a judgment dated 3.12.2008 declaring that the objection petition filed under Section 18 of the Land Acquisition Act had been wrongly held to be barred by time because the matter was governed by Article 181 of the Limitation Act with a consequent direction to the Land Acquisition Collector to re-consider the objection petition in terms of said Article 181 of the Limitation Act and then refer the same to the Referee Court for adjudication.
6. The land acquisition authorities and the official beneficiaries of the said acquisition i.e., the Chairman and the General Manager of the National Highway Authority of Pakistan, appear to have felt dissatisfied with the said order of the Peshawar High Court directing similar treatment to the similarly placed landowners irrespective of the fact whether anyone of them had or had not dragged them to the Courts of law and filed Civil Revision No. 235 of 2009 in this Court impugning the above-mentioned judgment dated 2.2.2009 passed in the above-mentioned Writ Petition No. 634 of 2007 filed by Amir Khan and others. The said petition came up for hearing before a Bench of this court on 04.03.2009 and leave was granted essentially, on the ground that the said impugned judgment of the High Court was based on the two abdve-mentioned judgments of this Court i.e. 1998 SCMR 2197 (M. Sarwar Khan and others) and 1999 SCMR 2009 = NLR 1999 (Rev.) 137 (Suleman and others) while a different view had been expressed by this Court in two other later judgments reported as 2005 SCMR 1320 (Habibullah's case) and PLD 2007 SC 620 (Land Acquisition Collector v.
Mian Khan). A judgment from the Indian Jurisdiction reported as AIR 1958 Andhra Pradesh 226 (Muhammad Ibrahim Sahib's case) was also mentioned and it was then observed that the said alleged contradiction between the said' two opinions of this Court warranted resolution by a larger Bench of this Court. One of the Hon'ble Members of this leave granting Bench namely Sabihuddin'
Ahmed, J. (as His lordship then was), however, added a note that the two judgments of this Court first above-mentioned i.e. 1998 SCMR 2197 and 1999 SCMR 2009 had been delivered by two Benches of this court each comprising of three Hon'ble Judges while the above-mentioned two later judgments of this Court i.e. '2005 SCMR 1320 and PLD 2007 SC 620 had been decided by ,Benches each of which comprised two Hon'ble Judges of this Court.
7. Leave was also granted against the second above -mentioned judgment of the Peshawar High Court dated 3.12.2008 passed in Mst. Shamshad Begum's Writ Petition No. 856 of 2007, through an order dated 16.7.2009, in the following terms:- "After hearing the learned counsel on either side we are inclined to grant leave to consider the question formulated in our order dated 9.1.2009 as follows:- "It is alleged that the impugned order has been passed on the basis of mistaken interpretation of law of limitation whereas, the fact is that where a special law provides for a period of limitation.
Article 181 of the Limitation Act, 1908 cannot be attracted. Places reliance upon Ghulam Muhammad v. Government of West Pakistan (PLD 1967 SC 191) and Gulzaman v. Collector, Land Acquisition (PLD 1984 Peshawar 35)."
It also needs to be considered as to what should be the remedy to such affectee under the judgments of this Court who has not filed objection petition within the limitation but who has been held entitled otherwise to receive compensation in accordance with the compensation awarded to his co-affecttees. Meanwhile the operation of the impugned judgment is suspended."
8. Hence these two' appeals filed by the concerned governmental authorities.
CIVIL APPEALS NOS. 1949, 1950 AND 1951 OF 2002:
9. Some area of land falling in District Haripur was acquired for Defence purposes through an Award bearing No. 8. Dated 31.7.1989. The owners of the said acquired land filed objections under Section 18 of the Land Acquisition Act essentially questioning the rate of compensation determined through the said award. The matter finally reached the Referee Court which enhanced the rate of compensation through a judgment dated 25.6.1992. Some of the landowners, however, filed appeals before the Peshawar High Court for further enhancement of the said compensation. The Land Acquisition Collector also felt aggrieved of the said enhancement made by the Referee Court and he also filed appeals in the Peshawar High Court seeking reduction thereof. The Peshawar High Court decided all the 22 appeals filed in the said connection through a single judgment dated 25.10.1995 passed in R.F.A. No. 70 of 1992; allowed appeals filed by the landowners and thereby further enhanced the amount of compensation and dismissed the appeals filed by the Land Acquisition Collector:
10. Finding the amount of compensation further enhanced by the High Court, the landowners who had, though filed objections under Section 18 of the Land Acquisition Act, but had not filed appeals in the High Court, approached the executing Court seeking payment of compensation of their acquired-pieces of land in terms of the amount as enhanced by the High Court. The said execution petitions of the said landowners were dismissed on the ground that since they had not filed appeals before the High Court, therefore, they were not entitled to any benefit flowing out of the said appellate judgment. In the meantime, these landowners appear also to have filed some applications in the Peshawar High Court but withdrew the same to enable them to file appeals in the Peshawar High Court which appeals seeking similar enhancement of compensation for them were, however, dismissed as being barred by time since the High Court had refused to condone the delay which had occurred in the filing of the same which was done through a consolidated single judgment dated 01.11.2001 which then led the said landowners to this Court through the above- mentioned appeals filed under Section 54 of the Land Acquisition Act of 1894 read with Article 187 of the Constitution and which appeals were then directed to be heard alongwith the set of appeals first above-mentioned.
11. We propose to deal first with the above- mentioned latter set of appeals i.e. CIVIL APPEALS NOS.
1949, 1950 AND 1951 OF 2002.
12. As has been noticed above the appellants-landowners in these three appeals had expressed dissatisfaction with Award No 8 announced in the said matter; had, through applications under Section 18 of the Land Acquisition Act, sought a Reference to the competent Court seeking enhancement of the compensation allowed to them by the Land Acquisition Collector and the said Referee Court had granted them some relief through some increase in the amount of compensation but then they had not filed further appeals in the High Court seeking further enhancement of the amount of compensation though some other similarly placed landowners had so done and with success.
13. The short and simple question involved in these three appeals would be whether the benefit which had accrued to the landowners who had filed an appeal in the Peshawar High Court seeking further enhancement of the compensation vis-a-vis their acquired land could also be extended to the similarly placed landowners who had, however, not filed any such appeal in the High Court.
14. Such-like questions have been coming-up before superior Courts of this country rather frequently and according to an almost consistent view of this Court, placing reliance on the provisions of Order XLI, rule 33 of the C.P.C.; Section 151 of the C.P.C.; Order XXXIII, Rule 5 of the Supreme Court Rules of 1980 and with a reference also to the provisions of Article 187 of the Constitution, it had almost always been declared that such like non-appealing affected litigants were also entitled to the same treatment which had been offered by the Appellate Court to the similarly placed appealing parties. For the sake of brevity a reference is being made to some only of the judgments of this Court deciding the said issue.
(i) PLD 1993 SC 418: (NORTH-WEST FRONTIER PROVINCE GOVERNMENT AND ANOTHER v. ABDUL GHAFOOR KHAN AND 2 OTHERS): Relevant part of this judgment reads as under:- "It hardly needs any emphasis that the entire body of the procedural law is meant for the advancement of the cause of justice and not to. Pose any technical difficulty in the way of the Court to ............................ DO COMPLETE JUSTICE between the litigating parties. Not un-often it has been noticed by the Courts that the provisions of Order XLI, C.P.C. Are not exhaustive ............. Reference may be made to Order XLI, rule 33, C.P C. Which, in ORDER TO PREVENT THE ENDS OF JUSTICE being defeated, GIVES WIDE DISCRETIONARY POWERS to the Appellate Court, to adjudge the rights of the parties as THE ENDS OF JUSTICE MAY DEMAND and pass such decree or order as ought to have been passed. The Court also has INHERENT POWERS under Section 151, C.P.C. TO MAKE SUCH ORDERS as may be necessary for THE ENDS OF JUSTICE and to prevent the abuse of the process of the Court. These are all enabling provisions; the powers thereunder can be exercised by the Court to COVER OSTENSIBLY IMPOSSIBLE SITUATIONS, FOR COMPLETE DISPENSATION OF JUSTICE, for which C.P.C. Has been designed, but despite the best efforts of the draftsman, to cater for all possible situations, if it is found lacking in meeting some eventualities, THE COURT CAN ACT DELICTU JUSTUCIAE, SUPPLY THE OMISSION IN THE PROCEDURE, adopt methodology, for effectually carrying out the purpose in view."
(emphasis and underlining has been supplied)
(ii) 1997 SCMR 1692: (PROVINCE OF PUNJAB AND OTHERS V. COL. ABDUL MAJEED AND OTHERS)
This judgment would really clinch the issue as one of the three questions to consider which the leave had been granted in this case was,' "WHETHER THE HIGH COURT WAS JUSTIFIED IN EXTENDING THE BENEFIT OF THE ABOVE JUDGMENT TO THE RESPONDENTS/OWNERS WHO HAD NOT FILED ANY APPEAL AGAINST THE JUDGMENTS OF THE COURTS BELOW" and this is how a Bench of this Court comprising three Hon'ble Judges answered the said question:- ................................ It is well-established that All PROCEDURAL LAWS are SUBSERVIENT TO THE CAUSE OF JUSTICE and therefore, such laws never limit or control the power of the Court to pass an order or decree which is NECESSARY TO DO FULL JUSTICE ..................... The framers of the Code were a{so alive to the above-stated underlying object of the procedural law and perhaps for this reason and to remove and dispel all doubts in this regard unequivocally provided in Section 151 of the Code that 'Nothing in this code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court'
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 .............................. Therefore, when the Appellate Court reaches a conclusion in a case that by withholding the relief to a NON-APPEALING RESPONDENT 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. ............................... Although it was not so expressly stated in the impugned judgment by the learned Judges but from the trend of reasoning , it is clear to us that the learned Judges were of the view that it would lead to CONTRADICTION in terms, if SOME OF THE LANDOWNERS in the SAME VICINITY are awarded COMPENSATION AT HIGHER RATE while OTHERS are paid at a MUCH LOWER RATE ... ... . .. .."
(emphasis and under-lining has been supplied)
(iii) 1998 SCMR 2197: (M. SARWAR KHAN AND OTHERS V. GOVERNMENT OF PAKISTAN AND OTHERS) Another Bench of this Court comprising three Hon'ble Judges not only affirmed the above-mentioned judgment in Abdul Majid's case but even followed it in the following words:- 'The matter is capable of being approached also in another way. With specific reference to acquisition proceedings, it has been laid down in Province of Punjab v. Abdul Majeed (1997 SCMR 1692), that the benefit of a revision in compensation at the appellate stage, on a parity of reasoning emerging from Order XLI, Rule 33, C.P.C., CAN BE EXTENDED TO NON-APPEALING landowners as well. On this score alone A COMMON ENHANCEMENT OF COMPENSATION by the Court in contemplation of the Land Acquisition Act, SHOULD HAVE ENURED TO THE BENEFIT OF ALL THE AFFECTEES In the background, the executing Court, much as the High Court, was in error firstly, by not allowing the benefits, on due representation, to all the affectees of the award...... (emphasis and underlining has been supplied)
(iv) 1999 SCMR 2009 (NLR (1999) (Rev.) 137): (SULEMAN & OTHERS V. LAND ACQUISITION COLLECTOR & OTHERS)
This was a case where the Referee Court, in pursuance of a petition under Section 18 of the Land Acquisition Act, had enhanced the amount of compensation. The Central Government questioned this enhancement before the High Court through appeals filed for the purpose. The High Court reduced the compensation determined by the Referee Court. Some of the land-owners approached this Court in the matter and the High court judgments and orders were set aside. The land-owners who had not filed appeals before this Court also sought, the benefit arising out of this Court's judgment which was resisted by the concerned authorities and finally denied upto the High Court. On the matter reaching this Court, this is what this Court said:--- "It would be unjust to deprive, the appellants from receiving benefit of the judgment and decree of the Land Acquisition Judge merely for the reason that they had not appealed against the order of the High Court when the same order challenged by other landowners similarly placed had been set aside by this Court we see no reason to deprive the appellants of their share of the compensation in accordance with the said judgment................ And direct the payment of compensation to the appellants in accordance with the judgment and decree of the Land Acquisition Court If
(v) PLD 1992 SC 590: (CENTRAL GOVERNMENT OF PAKISTAN AND OTHERS V. SULEMAN KHAN AND OTHERS): Following was the view of this Court on the said issue in this case: it................................ Not only this, it is now well-settled that under Order XLI, rule 33, C.P. C. 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. "
(emphasis and underlining has been supplied)
(vi) PLD 1981 SC 148: (AHMED KHAN V. SATTAR DIN): This was a case where a petition for special leave to appeal filed by a party to a lis had been dismissed by this Court as being barred by time. However, in an appeal filed by another party in which the said party. . Whose petition had been dismissed stood cited as respondent, it was found that the said respondent was entitled to relief which was consequently granted to him irrespective of the fact that the petition filed by him for the purpose already stood dismissed. The relevant operative part of this judgment was as under:--- "The question, however, is whether we should give any relief to the respondent in the exercise 9f our power under Order XLI, rule 33 of the Civil Procedure Code or under Article 187 of the Constitution which enjoins the Court to pass any appropriate order for this purpose of doing COMPLETE JUSTICE between the parties according to law. Although the civil petition for leave to appeal MO by the' respondent against the judgment of the High Court was dismissed as being barred by time, the fact remains that he has been illegally deprived .Of his right to obtain possession of khasra No. 110 as well by way of pre-emption. In the circumstances we are of the view that this is a fit case in which we should set aside the decree of the High Court and restore that of the District Court in respect of both the khasra numbers in dispute."
(emphasis and underlining has been supplied)
(vii) PLD 1991 SC 218: (GHULAM HUSSAIN AND ANOTHER V. FAIZ MUHAMMAD AND 7 OTHERS): The portion of the judgment which is relevant for our purposes is as under: "Looked at from this angle, the difficulty visualized by the High Court vis-a-vis the provisions of the Specific Relief Act would not present any insurmountable difficulty. It may be clarified that had there been any much difficulty we would NOT HA VE HESITATED to exercise further INHERENT POWER TO DO COMPLETE JUSTICE SAME POWER was with High Court itself and a SIMILAR POWER is with this Court under Supreme Court Rules Order XXXIII, rule 5, the TRIAL COURT also, it cannot be denied, had INHERENT POWERS in a case like the present one on the analogy of provisions contained in Order XLI, rule 33 and Order XXXIII, rule 5, Supreme Court Rules to DO JUSTICE between the parties before it under Section 151, C.P.C. ...... "
(emphasis and underlining has been supplied)
(viii) 1996 SCMR 1185: (HAMEED AKHTER NIAZI V. SECRETARY ESTABLISHMENT): This was a service matter but the principle laid down is of universal application and the principle is so prescribed:- "We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of this civil servant who litigated, but also of some other civil servants who may have not taken any legal proceedings, in such a case, the dictates of justices and rule of good governance demand that the benefit of the above judgment be extended to other civil servants who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum."
While we are on the subject, we also feel tempted to make reference to another judgment of this Court i.e. PLD 1963 S.C. 382 (Imtiaz Ahmed v. Ghulam A.I and others) in which the view expressed by Kaikous, J. (as His lordship then was) provides guidance in the following terms:- "I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights ....................... Any SYSTEM WHICH BY GIVING EFFECT TO THE FORM AND NOT TO THE SUBSTANCE DEFEATS SUBSTANTIVE RIGHTS, IS DEFECTIVE to that extent. The ideal must always be A SYSTEM THAT GIVES TO EVERY PERSON WHAT IS HIS."
(emphasis and underlining has been added)
15. What is discernable from the above-quoted judgments and others is that the basic object behind establishment of Courts in a society was never just to administer law but was, in fact, to dispense justice. The ultimate goal sought to be achieved by the Courts was thus to do complete justice between the parties, and to ensure that the rights were delivered to those. To whom they belonged and no hurdles were ever considered strong enough to detract the Courts from the reaching the said end. Incorporation of provisions such as Section 151, C.P.C.; Section 561-A in the Cr.P.C.; revisional powers of wide amplitude exercisable even suo motu under Section 115 of the C.P.C. And Section 439 of the Cr.P.C.; various provisions of the like contained in Order XLI, rule 4 and Order XLI, rule 33 of the C.P.C.; the provisions of Order XXXIII, rule 5 of the Supreme Court Rules of 1980; suo motu powers exercisable under Article 182(3) of the Constitution and provisions of Article 187 of the Constitution, are some of the examples which could be quoted as having been made available to the Courts at all levels to surmount any impediments which a Court might confront in the path of doing complete justice. With respect to the proceedings under the Land Acquisition Act, it may also be added that the same are of a rather peculiar nature as in the ultimate analysis what is required to be determined under the said Act is the value of the acquired land. Once the same stands resolved then the Acquiring Authorities become repositories of the said value of land as a trust for the ones who own the same which authorities are then obligated to identify the said persons and to discharge the said trust by paying the same to them.
16. And what is further deducible from the long line of judgments, some of which have been quoted above, is that once a judicial determination, be it of a point of fact or of a point of law, has been made and if such a determination covers not only the ones litigating before the Courts but some others also, then the dictates of determination should not be restricted only to the litigating parties justice would command that the benefits accruing from such a but should be extended even to those who had not indulged in litigation unless there were some extra-ordinary un-exceptionable reasons to the contrary and that all powers, including the powers inherent in the Courts be invoked for the purpose.
This would not only ensure justice for al but would also have the effect of eliminating unnecessary litigation. And respectfully following these judgments, we endorse the views expressed therein.
17. Reverting now to the facts and the merits of the above-mentioned three appeals, it would be noticed that the only reason which had weighed initially with the executing Court and finally with the High Court through the impugned judgment, for denying to the non-appealing landowners what had been judicially determined to belong to them, was that they had not filed appeals before the High Court in proper time to seek further enhancement of the amount of compensation like some of their fellow affectees had done.
18. In view of the above-noticed -provisions of Order .XLI, rule 33 of the C.P.C. As interpreted by the superior Courts as noticed above, the executing Court which had been approached by the non- appealing landowners was in error in having refused to pay to them the value of their land as finally determined by the High Court through the above-mentioned R.F.A. No 70 of 1992. Similar mistake was then repeated by the High Court through the impugned judgment by refusing them the sad relief which High Court stood obliged to do complete justice by not depriving the wronged persons of whatever stood granted to their similarly placed fellow affectees. The High Court failed to appreciate that such was a gross discrimination as some of the landowners stood paid much higher price as compared to the others and such .a discrimination, injustice and contradiction in terms warranted resolution and it was to meet such like situations that the provisions such as Order XL!, rule 33 and Section 151 of the C.P.C. Stood incorporated in the said Code.
19. We are also shocked and pained at the conduct of the governmental authorities who were adamant in denying to the present appellants what rightfully belonged to them and this 'these authorities were doing by seeking shelter under mere technicalities of law. They failed to realize that a Government and its various departments and agencies enjoyed a parental status vis-a-vis the subjects and it never behoved a Government or its agents to deny to the subjects what stood judicially determined to be belonging to them. The law of Limitation may be an impediment, though surmountable, in the way of a Court to grant a deserved. Relief but it would never be a bar in the way of the repository of a trust to discharge his obligations. A person would never qualify as a gentleman if he was to refuse to re-pay a debt only because he had managed to hold on to the same for more than three years. Needless to say that a government is expected to be a gentleman ---- nay, the noblest person in a state. Once, the price of an area of land had been finally and judicially determined, then it is distressing and agonizing to find the Government, saying brazenly to its subjects and its wards that yes the Court has found you entitled to a given amount of compensation but I shall not pay it to you because you did not disgrace me by dragging me to the Courts of law. This is, to say the least, not a conduct befitting a gentle and a noble man. The appellants before us appear to be petty landowners owning small land-holdings and enrichment of the governmental agencies at the cost of such like poor subjects could never be said to be civilized, moral or an ethical conduct.
20. Having thus examined all aspects of the matter we find that the concerned Courts hadfailed in their duties to ensure justice to the appellants in these appeals before us inasmuch as they had refused to exercise the discretion vesting in them under Order XLI, Rule 33 of the C.P.C. And the other enabling provisions including the provisions of Section 151, C.P.C. Consequently, we find that the appellants before us in these three appeals had been treated discriminately and that justice had been un-deservedly denied to them and further that the impugned orders and judgments had led to a gross contradiction in terms which warranted rectificatjon.
21. The learned senior ASC appearing for the official respondents in these three appeals had vehemently argued that since the appellants in these appeals had felt satisfied with the compensation as determined by the Referee Court; since they had not questioned the said determination before any higher forum and had thus acquiesced in the matter and that since the appeals filed by them culminating in the impugned judgment of the High Court were grossly barred by time, therefore, their appeals deserved to be dismissed.
22. The submissions lose sight of the provision of Order XLI, rule 33 of the C.P.C. If the said submission of the learned senior ASC was to be accepted then the same would lead to ludicrous and absurd results. It would mean that an affected person who had not filed any appeal ever at all, would be entitled to relief in terms of Order XLI, rule 33 of the C.P.C. But a similarly affected person who does file an appeal,* though beyond time, would - be thrown out on account of delay in filing the same. Such an interpretation would lead to laughable results and could not be accepted.
23. As has been noticed above, the non-appealing landowners were entitled to the relief sought by them initially on the strength of the judgment passed in the above-mentioned R.F.A. No. 70 of 1992 and subsequently at the hands of the executing Court which was not done. It is the said illegality which deserves to be cured to do complete justice in the matter. Resultantly in view of the said provisions of Order XLI, Rule 33, C.P.C. Read with Section 151 of the said Code read further with the provisions of Order =011, Rule 5 of the Supreme Court Rules, 1980 and the provisions of Article 187 of the Constitution, we accept these three appeals i.e. Civil Appeals Nos. 1949, 1950 and 1951 of 2002 as a result whereof we set aside the impugned judgment dated 25.1.2002 passed by the. Peshawar High Court and declare that the affected non-appealing landowners, including, the present appellants, would be entitled to the same compensation which was determined by the Peshawar High Court in pursuance of R.F.A. No. 70 of 1992 for the kind of land which such landowners owned.
In view of the un-reasonable conduct of the official respondents noticed above, they are ordered to bear the costs of these appeals which are fixed at rupees one hundred thousand in case of each appeal.
24. This brings us to the other sets of appeals i.e. CIVIL APPEALS NOS. 268 OF 2009 AND 942 OF 2009 filed by the Chairman of the National Highway Authority and others and by the Collector Land Acquisition and another, respectively.
25. We have held above that it would. Be highly un- just and against the established norms of equity, fair-play and good conscience if .Some of the landowners were, allowed compensation for their acquired land at a much higher rate than the others owning similar lands only because the said others had not opted to drag the concerned land acquiring authorities to the Courts of law.
We have also found that it was a legal and a moral obligation cast on the said authorities not to grudge payment of compensation to such-like non-appealing landowners according to the rate judicially determined for the land in question. Since it has riot been denied that this compensation so assessed had attained finality, therefore, the least that could be said was that the dictates of justice demanded that all the similarly placed landowners be paid. Compensation according to the said judicial determination irrespective of the fact whether they had or had not approached the Courts of law for the purpose Our emphasis on the fact that the value of the pieces of land required since judicially settled, stood admittedly and fir determined and there was no longer any dispute about the value of the same. And since aiming to the "ad of wronged non-Objecting land- owners was a step towards doing justice to them and since it was rule too well established by now that the Courts would refuse to interfere with an order, even if the same suffered from any iliegality, which had refused to perpetuate something which was patently un-just or worked injustice, therefore, the two impugned judgments would not admit of any interference. Reference in this connection may be made to one only of the many decisions of this Court, namely, NAWAB SYED RAUNAQ ALI's CASE (PLD 1973 S.C. 236).
26. As has been noticed above, while issuing the writs through the two impugned judgments, the Peshawar High Court had placed reliance on two above-quoted judgments of this Court reported as 1998 SCMR 2197 and 1998 SCMR 2009 = NLR 1999 (Rev.)
137. It had been canvassed before the leave-granting Bench that a different view had been taken by this Court in two latter judgments, namely in HABIBULLAH's case (2005 SCMR 1320) and in Land Acquisition Collector's case (PLD 2007 S.C. 620). And it was for this reason tnat leave had been granted in these two cases in the following terms:- "As an important question of law has been raised and two seemingly different views have been placed before us we think it proper to refer the case, for decision, to a larger Bench of at least five Hon'bIe Judges."
27. So far as the judgment reported as 2005 SCMR 1320 which was a leave refusing order passed by a Bench of two Hon`ble Judges of this Court of which one of us (Khalikur-Rehman Ramday, J.) was also a member, is concerned, the main reason which had weighed in refusing leave in that case was that the dispute_ being raised through a petition under Article 199 of the Constitution related to the determination of compensation for the trees allegedly standing on the acquired land in the form of an orchard. The award relating to the said alleged orchard had never been questioned through a reference envisaged by section 18 of the Land Acquisition Act. The reason which had weighed with this Court a 3 refusing to come to the aid of the landowners was absolutely different and was that:-- "Pie determination of compensation for trees is admittedly a question of fact which certainly cannot be made in the exercise of Constitutional Jurisdiction."
This case has thus no bearing or relevance vis-a-vis the matter in hand before us because in the present case the determination of compensation stands made; had attained finality and was not in dispute.
28. The above-referred case i.e. The one reported as PLD 2007 S.C. 620, was again a judgment delivered by a Bench of this Court comprising two Hon'ble Judges. The two afore-mentioned judgments of this Court which had been relied upon by the Peshawar High Court in passing the impugned judgments i.e. 1998 SCMR 2197 and 1999 SCMR 2009 were judgments passed by three Hon'ble Member Benches of this Court and had in fact followed an earlier three Member Bench judgment of this Court delivered in Col. Abdul Majeed's case (1997 SCMR 1692) quoted at No. (ii) in para 14 (supra). The 2007 case mentioned above had noticed this Abdul Majeed's case, with approval, in para 16 of the judgment in the following words:- "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 (Province of Punjab v. Abdul Majeed) (1997 SCMR 1692)"
(emphasis and underlining has been added)
It would thus not be right to say that in the said 2007 case, this Court had taken a view different from the one taken in the 1997 SCMR 1692 case or in the cases reported as 1998 SCMR 2197 and 1999 SCMR 2009. It is, however, true that the 2007 case had not been decided in terms of these three cases but the reason therefore was not that a different view was being taken but because the same were not found applicable to the facts of the said 2007 case as explained by Their Lordships themselves in the following words:- "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 learned 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 28.02.2001"
(emphasis and underlining has been supplied)
29. In this view of the matter, the impression that the two judgments reported as 2005 SCMR 1320 and as PLD 2007 S.C. 620, had taken a view different from the ones expressed in the above noticed earlier cases decided by this Court and relied upon by the Peshawar High Court, was misplaced. It may be added that a judgment from the Indian Jurisdiction (Andhra Pradesh) mentioned in the leave-granting order is of no consequence in view bf the judgments on the subject from our own jurisdiction.
30. Having thus examined all aspects of the matter, we find that since the two impugned judgments of the Peshawar High Court which are the, subject-matter of these two appeals, were steps in the advancement of the cause of justice; had the effect of doing justice to the gravely wronged land-owners and since interference with these would work in-justice to the affected parties, therefore, the same were not open to exception.
31. Resultantly, Civil Appeals Nos. 268 of 2009 and 942 of'2009 are dismissed with costs fixed, at Rs.
One hundred thousand in each appeal, to be paid by the appellants on account of their conduct above-mentioned.
Civil .
RAHMAT HUSSAIN JAFFERI, J. --- I have had the privilege of going through the judgment authored by my respected and learned brother (Khalil-ur-Rehman Ramday, J.) by which two sets of appeals have been disposed of. I agree with the findings arrived at and the decision taken in respect of Civil Appeals Nos. 1949, 1950 and 1951 of 2002.
2. As regards Civil Appeals No. 268 and 942 of 2009, I have not been able to persuade myself to agree with the findings and the decision taken qua these appeals. The main question involved in these appeals is. As to whether a landowner, who had accepted the award, can avail the benefit given to the landowners, who had not accepted the award and his case was referred to the Court for judicial determination of compensation arising out of one and the same award. My finding on the above point is in the negative for the following reasons. ,
3. The facts of the case have already been mentioned in the judgment, therefore, there is no need to repeat the same.
4. A perusal of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') reveals that it is a complete code, exhaustive special law- and capable enough to meet all sorts of eventualities. The scheme of the Act is . That after passing the award by the Collector, the compensation is required to -bs distributed amongst various landowners, whose properties were acquired and such. Landowners would either accept the said award or otherwise. If a landowner accepts the award, then his case is closed.
However; if a land owner does not accept the award, then he is required to file a written application to the Collector requesting him that the matter may be referred for determination of the Court as to measurement of the land, amount of compensation, the persons tc whom it is payable or the apportionment of the compensation amongst the persons interested within a period of six weeks- from the date of the award, if he was present or represented before the Collector; in other cases within six weeks of the receipt of the notice from the Collector under Section 12(2) of the Act or within six months from the date of award, whichever expire earlier in point of time as required under Section 18 of the Act that read as under:--- "18. Reference to Court. (1) Any person interested who has not accepted the 'award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of Lie land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons.
(2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made:---
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six. Weeks from the date of the Collector's award;
(b) in other cases, within 'six weeks of, the receipt of the notice from the Collector under Section. 12, sub-section (2) or within six months from the date of the Collector's award, whichever period shall first expire."
5. After receipt of such application, the Collector is required to refer the matter to the Court for determination of the point involved in the matter. The Court after receipt of the reference from The Collector is required to issue notice to the applicant, all persons interested in the objection, except the landowners, who have accepted the award and the Collector to proceed further to determine the objection mentioned in the reference filed on the application of landowner, who had not accepted the award, as required under Section 20 of the Act, which reads as under:--- "20. Service of notice. The Court shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely:---
(a) the applicant;
(b) all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and
(c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector.
6. It is important to note that the scope of proceedings before the Court on such reference is restricted to consider the interest of the persons/landowners affected by the objection, therefore, the conduct of the other persons or landowners whose land was acquired under the same award or who has not claimed any enhancement of compensation by accepting the award cannot be considered for the reason that the Collector had not sent the case of the landowner who had accepted the award as provided under Section 21 of the Act, which reads as under:- "21. Restriction on scope of proceedings. The scope of the inquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by the objection."
Thus, the jurisdiction of the Court is limited to decide the specific question taken to the award and to consider the matter referred to by the Collector. The Court cannot go beyond the above scope.
7. The Court while determining the amount of compensation is required to consider the market value of the land on the date of publication of notification under Section 4(1) of the Act in respect of the land of the landowner on whose request the reference was sent. Damage sustained by such landowner for the reasons of taking of any standing crops or trees, taking possession of the land by severing such land from his other land, injuriously affecting his other moveable or immovable property or compelled to change his residence or place of business etc. As provided under Section 23 of the Act. All those points are personal and individual of the landowner on whose request the reference was sent. The Court is also required to consider the conditions mentioned in Sections 24 & 25 of the Act. At the conclusion of the proceedings award is to be passed under Section 26 of the Act that reads as under:- 126(1)] Form of awards. Every award under this part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of subsection (1) of Section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts.
(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, clause (2), and Section 2, clause (9), respectively, of the Code of Civil Procedure, 1908.]"
Thus the award passed by the Court would be the decree between the landowner on whose request . The reference was sent and the Collector in respect of the land of such owner.
8. As regards the payment of compensation, Section 31 of the Act deals with such question, but the_ second proviso to sub-section (2) of Section 31 of the Act is important for the purpose of this case, which reads as under:- "(2) if they shall not-consent to receive it, or if there, be no person competent to alienate the !And, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under. Section 18 would be submitted: Provided that any person admitted to be interested may receive such payment under protet as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any-application Section 18: Proided also that nothing herein contained shall affect the liability of any person, who may received the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto."
From the above provisions of law, it. Is manifest that a specific bar has been created against a landowner who has accepted the award by receiving the full or any part of the amount without protest disentitling him from moving any application under Section 18 of the Act.
9. The combine effect of the provisions of the Act is that award of Collector is an administrative award. For judicial determination of compensation etc, a reference Within the meaning of Section 18 of the. Act is essential, without such reference the Court has no jurisdiction to determine the compensation etc. Further the scope of proceedings- is -a narrow to the extent of consideration of objection raised to the award by the landowner, who had not accepted the award in respect of his land. The landowner, who has accepted the award by receiving the whole or part of the amount of compensation without protest, he is barred from filing reference under Section 18 of the Act. Therefore, his case of compensation in respect of his land cannot be considered oy the Court, as it has jurisdiction to determine such question only on reference sent by the Collector under Section 18 of the Act. Thus a landowner, who accepted the award, cannot take any benefit directly. It is weksettled that if a person is not entitle to take benefit directly then he cannot take same benefit indirectly. Further, when the Court determines the compensation etc, is required to pass an award and the said award is deemed to be a decree between the parties of the reference i.e. The landowner who had not accepted the award of Collector and the Collector The landowner, who has accepted the, award, is not a party in such proceedings, as no notice is required to be issued to him. As such, he would be a stranger to such decree.
10. The High Court, while allowing the appeals has relied upon Muhammad Sarwar Khan v.
Government of Pakistan (1998 SCMR 2197) and Suleman v. Land Acquisition Collector (1999 SCMR 2009). The facts of the first authority are that seven landowners made an application under Section 18 of the Act to the Collector, where they also acted for and representatives of as many as a total of 1070 other landowners, the affectees of the award. An application' under Order I, Rule 8,'
C.P.C. Was filed for treating the reference, filed in representative capacity, which was allowed by the referee Court. The order was confirmed by the High Court in appeal and reached its finality. T compensation' was enhanced and it was paid to all the persons interested, but some of landowners were not paid the compensation, therefore, they filed execution application which was dismissed on the ground that. Order C.P.C. Did not apply to the proceedings' of compensation, which order was upheld by the High but this Court allowed the appeal and set aside It where a learned Deputy AttOrney General made a that 817 of the persons interested had already been paid the amount and the controversy was confined to only 2 remaining persons. In such circumstances, .The appeal was allowed
11. The facts of the second case viz suleman are that the appellant alongwith other landowners did not accept the award, therefore, application was moved before the Collector for sending a reference to the Court for determination of the compensation of their land. Therefore, in terms of Section 18 of the Act, a reference was filed before the Court and the Court enhanced the compensation. The Central Government preferred an appeal before the High Court, which was accepted and the rate at compensation was reduced. Some of the landowners excluding the appellant challenged the judgment of the High Court before this Court by filing appeal, which was accepted and the order of the High Court was set aside on the ground that the Federal Government or its departments or Local authorities for whose benefit the land was acquired had no right to appeal to the High Court. In pursuance of the said judgment the appellants approached the executing Court for execution of the decree, but the same was dismissed, on the ground that the appellants did not file appeal before this Court, therefore, they were not entitled for the benefit of the judgment of this Court. The appellants filed appeal before the High Court, which was dismissed and then the appeal was preferred before this Court. It was observed by this Court that after setting aside the judgment of the High Court the decree of the Civil Court was in the field, therefore, it was required to be executed and the appellants were entitled to claim compensation, as held by the referee Court.
12. From the above authorities, it is clear that in both the cases, the appellants did not accept the award and requested the Collector to send the reference to the Court and then the reference was filed under Section 18 of the Act, therefore, the decisions were given on the said facts. But in the present case, the appellants accepted the award as they did not request the Collector to send the reference to the Court. As such both the authorities are not applicable to the facts and circumstances of this case.
13. This Court in the case of Land Acquisition Collector v. Mian Khan (PLD 2007 Supreme Court 620) examined the above formulated question in detail and after relying upon various authorities at page 627 observed as under :- "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".
At page 631 thereof, it has been observed as under:--- "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."
14. In view of the above position, I am of the considered view that the persons, who had not filed objection before the Collector against the award and had accepted the award passed by the Collector, cannot take benefit of the decree passed in favour of the other landowners of the award, as it reached finality in respect of such landowner. If the above proposition is replied otherwise, the Sections 18, 20, 21 and 2nd proviso to Section 31(2) of the Act would become redundant, which cannot be attributed to the Legislature.
15. In the light of what has been discussed above, the impugned judgments of the High Court are set aside and the appeals (Civil Appeals Nos. 268 and 942 of 2009) are. Allowed.