Tariq Javaid, J.- The Regular First Appeal is directed against judgment and decree dated 23.2.2008 passed by learned Senior Civil Judge, Muzaffargarh whereby the trial Court has enhanced the award made by the appellant No. 1 on 24.6.1996.
2. The lands owned by the respondent along with other land owners were acquired in the year 1996 for installation of an oil refinery by the Appellant No. 2. The compensation was assessed and paid to the affectees. Objections by some of the affectees were filed under Section 18 of the Land Acquisition Act, 1894 herein after to be referred as the Act. The present respondent, who associated with some other affectees filed objections in reference titled 'Mst. Rafiqan and others Vs. PARCO", which was pending adjudication before the learned Senior Civil Judge, Muzaffargarh, wherein an application for separation of his reference was filed, which was allowed and reference to the extent of present respondent has been decided vide impugned judgment.
3. The respondent in his objections claimed that he owned the lands which were commercial, fruit trees and residential houses were also constructed over the acquired lands and value whereof has not been properly assessed. It was further alleged that the respondent was entitled to receive the commercial rates and the compensation paid to him was not assessed according to the schedule notified/issued by the Government. Allegedly the respondent received compensation in the sum of Rs. 80,54,900/- under protest and for the enhancement of amount has filed the separate reference before the learned trial Court. Allegedly the learned trial Court without inviting cross objections framed the issues viz:
(i) Whether the assessm ent regarding the price of superstructure and the land mentioned in the award is incorrect and the award dated 24.6.1996 is liable to be rejected, if so what is its correct evaluation? OPA
(ii) Relief.
4. Both the parties led their evidence and the learned trial Court after hearing arguments of both the parties enhanced the award to the extent of further compensation in the sum of Rs.
46,52,765/-; along with profit of 11 years @ 8%, which comes to Rs. 1,08,48,568/-.
5. The learned counsel for the appellant has argued that the respondent had already filed a reference through Collector, which is still pending in the Court of competent jurisdiction. The present proceedings, which were in fact a reference and has been treated as a suit was not competent. It was argued that after separation of respondent's objections, the same should have been routed through the collector. It was also argued that if the reference was to be treated as a suit, to which the learned counsel for the appellant had serious reservations, then the Appellant No. 2 was a necessary party and the impugned judgment has been passed without notice to him. The learned counsel for the appellant also argued that the respondent has failed to prove that he was entitled to the enhanced amount of compensation. Neither any issue with regard to the . compensation for fruit trees was framed nor any evidence was produced to prove the same as well as that the respondent was entitled for compensation of his lands at commercial rates.
6. Conversely, the learned counsel for the respondent has vehemently opposed the appeal and it is argued that the appeal is not maintainable under Section 18 of the Act. However, at the same time the judgment of the learned trial Court was also not supported in as much as that according to the learned counsel for the respondent the compensation awarded by the learned trial Court is far too below the actual value of the property acquired from him. According to the learned counsel for the respondent the entire land acquired by the Appellant No. 1 from the respondent was commercial. It was further argued that the compensation for the superstructure and the fruit trees was also too low and whimsical.
7. Regarding the preliminary objection with regard to the maintainability of the appeal, the learned counsel for the respondent placed reliance on Pir Khan through legal heirs Vs. Military Estate Officer and others (PLD 1987 S.C. 485), Behram,Khan and 54 others Vs. Military Estate Officer and two others (1988 SCM R 1160), Multan Improvement Trust and others Vs. Sultan Mahmood and others (1989 M LD 441), ICI Pakistan Ltd. Vs. Salahud Din & others (NLR 1990 S.CJ 693) and WAPDA Vs. Ghulam Shabbir (2009 SCM R 1051) and argued that the present appeal is not maintainable.
8. In Pir Khan through legal heirs Vs. Military Estate Officer and others (PLD 1987 SC 485), it was held as under:-- "We agree and would add that the order of the civil Court on reference made to it by the Land Acquisition Collector is not an independent order but merely a substitutive order, whereby the award of the Land Acquisition Collector is substituted by the order of the civil Court, which order then becomes the award.
Since, by virtue of sub-section (2) of Section .50 of the Act, the award made by the Land Acquisition Collector is final and cannot be challenged except by a party which has expressly been conferred the right of appeal, hence Respondents 1 and 2 who did not have any such right expressly conferred on them, did not have any locus standi to file an appeal. As already observed, no such right is to be assumed on any a priori ground and a right of appeal can be exercised only if it has been expressly conferred on a party by statute."
8. The above rule was stretched further by the Hon'ble Supreme Court when Abdul Shakurul Salam, J rendered judgment in the case of ICI Pakistan Limited Vs. Salah-ud-Din of others (NLR 1990 SCJ 693). It was observed, "4. A word may be added that under the occurrence of eminent domain, the State acquires citizen's property. It does so for a public purpose. Land Acquisition Act allows acquisition for a company if it feels that the utilization of the acquired land by a company 'would be for the benefit of the citizens.
Whether the State does so for its own purposes i.e. public or, for a company, on acquisition the land vests in the State. The relationship or transaction is between the citizen and the State. No third party has any right. Even if it is permitted that a company for whose benefit the property is sought to be acquired may appear in a reference for determination of the compensation payable to the citizen, that does not mean that it is also conferred a right to appeal against the decision on reference. It is trite law that right of appeal is a creation of statute. If it does not confer, none has it. Invasive provisions over the rights of citizens have to be construed strictly. This is axiomatic.
5. It is to be kept in view and not overlooked that under the Land Acquisition Act, a citizen is being deprived of his land which in most case may be the only means of his livelihood keeping him busy in tilling it and living on it, having no education or other trade. And this too without any fault of his.
Compensation is paid on determination by an officer of the acquiring Authority-with a hope of its being equitably done on reference by a Court. As soon as that is determined, he is entitled to be paid and left alone. If he were to be dragged in litigation by a company, who has got his land acquired for setting up a business-to which he is no match in power, resources or otherwise, by sophistry or ingenuity, the citizen having lost his property may have no means to carry on the litigation and find himself at dead end. No interpretation of law can be just which puts a citizen in such like quandary. When people are deprived of their rights, dragged into unnecessary litigation and driven to the wall, they are likely to lose heart-resulting in withdrawal or aggression, neither of which is conducive to either administration of justice or sustenance of the State. The petitioner company should be content to take the respondents' land for setting up its business for making money and not try to deprive them further of the compensation allowed to them by a competent Court."
9. The dictum laid down in the above cases was followed in. Multan Improvement Trust and others Vs. Sultan Muhammad and others (1989 M LD 441) and WAPDA Vs. Ghulam Shabbir (2009 SCM R 105).
10.The rule of law enunciated in the above said judgment does not call for any further elaboration. However, the learned counsel for the respondent appears to have lost sight of the provisions of Section 22-A of the Act which allows for filing of the cross objections by the Provincial Government, local authority or a company.
11.In Behram Khan and 54 others Vs. Military Estate Officer and two others (1988 SCM R 1160) the Hon'ble Supreme Court came to the conclusion that according to Section 22-A of the Act a Provincial Government, local authority or a company had a right to file the cross objections. While considering the effect of. Section 22-A Nasim Hassan Shah, J observed as under:-- "We have, therefore, examined the provisions of this Ordinance with the assistance of the learned counsel but are of the opinion that none of its provisions affect the reasons given in the judgment in Pir Khan's Case PLD 1987 SC 485 in reaching the conclusion that neither the Pakistan Ordnance Factory nor the Central. Government had the right to file any appeal before the High Court. The only provision of the amending Ordinance, which could conceivably be invoked is contained in Section 15 of the amending Ordinance. By this provision Section 22-A has been inserted in the Act after Section 22 of the Land Acquisition Act. This provision is 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 interested and the Court may reduce the amount awarded by the Collector if it considers it just and propr."
According to this provision, a Provincial Government or a Local authority or a Company for which the land is being acquired can lodge a cross-objection to the objection raise by any person interested (whose land or interest therein has been acquired) and on such cross-objection the Court may reduce the amount awarded by the Collector to the land-owner, in proper cases. If such a cross-objection is not decided to the satisfaction of the Provincial Government or Local Authority or a Company it could file an appeal before the High Court; but in the instant case the land was being acquired for Pakistan Ordnance Factory (which is a project of the Central Government) and it is the Central Government which is dissatisfied with the order of the Civil Court as it has raised the amount of the compensation assessed by the Land Acqtisition Collector by accepting the objections against the amount assessed by him. The Central Government, however, is not included amongst those who have been given the right to file a cross-objection against the award of the Collector. Accordingly, the question of filing an appeal against the rejection of its cross-objection does not arise. The Pakistan Ordnance Factory, which also filed an appeal before the High Court through the Military Estate Officer; is admittedly neither a Local Authority nor a Company. Hence it cannot also avail the provisions of Section 22-A."
12. After hearing both the parties and perusal of the above said judgments we are of the considered opinion that the appellant being a Company had a right under Section 22-A of the Act to file the cross- objections. While exercising jurisdiction under the Act, the learned trial Court, as held in Pir Khan through legal heirs Vs. Military Estate Officer and others, supra, merely to substitute the order of the Land Acquisition Collector. Therefore, under Section 22-A, the Company had a right to file cross objections. It was imperative for the learned trial Court to invite the cross-objections and thereafter to frame the issues. The issues framed by the learned trial Court were also not proper as specific objections with regard to the nature of property, whether it was commercial or not, the fact that whether there were any fruit trees and superstructures needed proof through evidence. The Mark-"A" relied by the learned trial Court is also a disputed document. The conclusions arrived at by the learned trial Court are also not supported by the evidence on record.
Although the learned counsel for the respondent has raised objections to the maintainability of the appeal yet he has not supported the judgment of the learned trial Court and instead demurred that the enhancement allowed by the learned trial Court is not sufficient, that too without filing cross-objections to the appeal and assailing the judgment impugned herein.
13.The question arises whether we can grant any relief to the respondent, who has not assailed the judgment by filing any appeal or revision and yet has shown his grievance during the arguments and prayed for enhancement of the amount awarded to him by the learned trial Court.
14. In Manager Jammu & Kashmir State property in Pakistan Vs. Khuda Yar (PLD 1975 Supreme Court 678) the Hon'ble Supreme Court held that this Court has the jurisdiction to grant a relief where the judgment passed by the learned trial Court is not otherwise sustainable under Section 115 of the CPC. It was observed at page 697 that, The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and Secondly, the Court may make such order in the case as it thinks fit."
15.Similarly in Mst. Gumbad Vs. Member Board of Revenue (1996 SCM R 1755) the revisional jurisdiction exercised by this Court in absence of any appeal was upheld. The precise question was whether this Court could exercise suo motu revisional jurisdiction while an appeal was competent but it was not filed? The Hon'ble Supreme Court held as follows:- "14. In such view of the fact we are inclined to hold that the learned Single Judge of the High Court was competent to take suo motu action in its revisional jurisdiction under Section 115, C.P.C."
16.In present case the appellants, who were entitled to file cross-objections were not either invited to file the same or as alleged by the appellant an opportunity to file the cross-objections was not afforded. This fact has not been disputed by the respondent. Neither the proper been produced. Both of the parties feel aggrieved of the judgment. issues were framed nor evidence with regard to the actual objections has, Therefore, we feel that in the interest of justice as well as following the dictum laid down in 1988 SCM R 1160, PLD 1975 SC 678 and 1996 SCM R 1755 reproduced above the impugned judgment merits to be set aside. The case is remanded to the learned trial Court to allow the appellant to file cross-objections, reframe the issues and allow the respondent to produce his evidence in support of his claims. Since it is an old case the learned trial Court shall decide the same expeditiously, preferably within a period of four months.