' JAMIL KHAN MANDOKHAIL, J.---Facts in brief are that a land was acquired for the purpose of construction of road by the appellant and award in this behalf was prepared by the Revenue Authorities. The respondent No,1 feeling aggrieved from the award submitted a Reference before the Court of Addl: District Judge, Kalat. The trial Court after hearing the parties, accepted the reference by means of order dated 30-10-2007, hence this appeal.
2. Learned counsel for the appellant pointed out that the order dated 30-10-2007 passed by the Additional District Judge, Kalat is contrary to the Provision of Order XX Rule 5, C.P.C., as neither any issue had been framed nor any evidence has been recorded to ascertain the matter. According to him, the impugned order is not only illegal, but also a non-speaking one. According to the learned counsel the impugned order is nullity in the eyes of law and requested for setting aside of the same.
3. Learned counsel for the respondent supported the impugned order and stated that the appellant "the National Highway Authority" is not competent to file the appeal, as the Provincial Government alone is competent to file appeal in view of the provision of section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the "Act"). Learned counsel relied upon a judgment in case titled Pakistan Atomic Energy Commission and others v. Land Acquisition Collector and others" reported in 2008 SCM R 1280. Learned counsel further argued that the order of the trial Court is based upon proper appraisal of the evidence, therefore, no illegality has been committed.
4. We have heard the learned counsel for the parties and have gone through record. Before deciding the case on merits, we propose to decide the objection of the learned counsel for the respondent regarding maintainability of the appeal.
5. It is to be noted that initially, under section 18 of the Act, only the Provincial Government was authorized to file an appeal against an order or judgment and decree passed by the Courts below.
It is observed that pursuant to the judgment of the Hon'ble Federal Shariat Court, the Government of Balochistan, on 21st September, 2000, brought an amendment in the sections 18(3), 20, 22-A, 31 and 50 of the Act through the Land Acquisition (Balochistan Amendment) Ordinance V of. 2000, which is reproduced as under:-- "2. Amendment of section 18 of Act I of 1894. ---In the Land Acquisition Act, 1894, in its application to the Province of Balochistan, hereinafter referred to as the said Act, in subsection (3) of section 18, for the words "the Provincial Government", the words and commas "the Federal Government, the Provincial Government, a Company or a local authority, as the case may be, "shall be substituted."
6. In view of the amendment in the law, the concerned Authority for whom the land is to be acquired has the right to file an appeal. Thus, in such view of the matter, the present appeal has rightly and competently been filed by the appellant. In this behalf this Court in the present case has already held that the appeal is competent by means of order dated 14-7-2009. As far as the case- law relied upon by the counsel for the respondent is concerned, facts and circumstances of the same are different than the facts of the present case. Since the amendment has been made in the law pertaining to the Balochistan which point was not under discussion before the Hon'ble Supreme Court of Pakistan, therefore, the citation relied upon is not applicable in the present case.
7. Now considering the merits of the appeal, we have observed that the trial Court while deciding the reference has neither framed any issue nor called any evidence to ascertain the contents of the reference or to consider the objection filed by the appellant. The provisions of the Civil Procedure Code are applicable to the act, as far as the procedure for conducting of the case and decision of the reference is concerned. By not adopting the proper procedure i.e, framing of issues and recording of the evidence, the trial Court acted illegally and unlawfully. The order impugned in our opinion is not in conformity with the Provision of Order XX, Rule 5, C.P.C. Which is an illegality and irregularity on the part of the trial Court.
Thus, in view of what has been discussed hereinabove, we are inclined to accept the appeal, set aside the impugned order dated 30-10-2007 passed by the Additional District Judge, Kalat. The reference shall be deemed to be pending before the trial Court, who should after framing issues, recording evidence and hearing the parties to decide the same strictly in accordance with law possibly within a period of six months.