' YAHYA AFRIDI, J.--- This revision petition is directed against the judgment and order dated 7-4- 2011 passed by the learned Referee Judge/District Judge, Haripur, whereby the application of the petitioners for amendment of Reference No,13/4 was dismissed.
2. The events leading to the present petition, in chronological order, are as under:- 2-6-1996 Award No.10 was announced determining the compensation for acquiring land measuring 38 Kanals 10 Marlas situated in Moza Jammu Tehsil Ghazi ("acquired property") by WAPDA for the construction of Ghazi Barotha Hydro Power Project ("Award").
17-7-1999The present petitioners filed their objections to the Collector regarding the apportionment of the compensation determined in the Award in favour of respondents No.3 to 18 and claimed 1/3rd of the said compensation. The said objection of the petitioners was entertained and sent by the Collector to the Referee Court as Reference No.13/4 ("Reference"), which was filed, referred and entertained under section 30 of The Land Acquisition Act, 1894 ("Act").
19-7-1999 Respondents Nos.3 to 18 instituted a Suit No.41/1 of 1999, claiming that they were the exclusive owners of the acquired property on the basis of Mutation No.455dated28-2-1964andMutation88dated14-10-1998.
("Mutations")
23-10- 1999Petitioners filed an application under Order-VI Rule 17 Civil Procedure Code, 1908 ("C.P.C.") for amending the Reference, seeking that instead of 1/3rd, the total compensation, so determined in the Award, be given to the present petitioners. The reason, so stated in the application, for filing the application was that on reviewing the Revenue Record, it transpired that petitioners were owners of the entire acquired property.
26-4- 2000The plaint of Suit No.44/1 filed by the respondents Nos.3 to 18 was rejected by Senior Civil Judge, Haripur.
4-10-2000The District Judge Haripur, dismissed the appeal of the respondents Nos.3 to 18 impugning the decision of 26-4-2000.
5-5-2001 Reference No.13/4 filed by the petitioners pending before Referee Court was adjourned "sine-die", with consent of the parties.
16-4-2002This Court dismissed the revision petition filed by respondents Nos.3 to 18 impugning the decisions of the lower court dated 26-4-2000 and 4-10- 2000.
25-6- 2002Reference pending before Referee Court was restored on the application of the petitioners.
16-9- 2004Application of the petitioners seeking amendment of the Reference was dismissed by the referee Court.
3-1-2011 Revision filed by the present petitioners impugning the decision of the referee Court dated 16-9-2004 was partially accepted and the case was remanded back to the referee Court, to decide the same afresh.
7-4-2011 The referee Court dismissed the application of the petitioners for amendment of the Reference.
5-5-2011 The present revision petition was filed before this Court.
3. The learned counsel for the petitioners vehemently argued that the application of the petitioners for amendment was not barred under. The provisions of the Act; that the contents of the application for amendment did not change the nature of the claim of the petitioners but in fact advanced and preserved the rights of the parties for just decision and thus came within the purview of the provisions of Order-IV, Rule-17 of the C.P.C.; that technicalities should not defeat the ends of justice; that as the petitioners have invoked section 30 of the Act, the restriction provided for proceedings and reference under section 18 of the Act should not be applied; that the issue in hand related to dispute of title and not related to quantum of compensation determined and the share so specified in the award; and that the amendment so applied for by the petitioners ought to have been allowed by the referee Court and thus the refusal thereof was contrary to clear the command of the law. Sought reliance upon judgments rendered in cases titled "Mir Mazar v. Azim (PLD 1.993 SC 332), Ghulam Muhammad and another v. Muhammad Aslam and others (PLD 1993 SC 336), Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345), Shakir Muhammad and another v. The State (PLD 1985 SC 357), Lalzada and another v. Gul Bakhsh Singh and 15 others (PLD 1987 Peshawar 59), Muhammad Sherin Sahibzada v. Lal Badshah and 5 others (PLD 1987 Peshawar 62), Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678), Abdul Majeed v. Khalid Yasin and 2 others (2002 CLC 468), Sardar Muhammad and 2 others v. Haider Zaman and 3 others (PLD 1993 Peshawar 81). Faqir Muhammad Khan and 18 others v. Ghulam Elahi and others (PLD 1993 Peshawar 87), Ahmad Khan v. Rasul Shah and others (PLD 1975 SC 311), Mst. Fatima and others v. Shah Muhammad and others (PLD 1975 SC 318), Ghulam Muhammad v.. Government of West Pakistan (PLD 1967 SC 191), Ihsan Illahi and others v. Hukam Jan (PLD 1967 SC 200), H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another (PED 1969 SC 65), S.M. Jaffar v. A.Q. Shaukat and another (PLD 1969 SC 70), Ghulam Muhammad v. Khan Muhammad Sabar Lal (PLD 1969 SC 71), Muhammad Inayat v. Ch. Muhammad Saleem and 2 others (PLD 1979 Lahore 154), Government of West Pakistan (Now Government of N.-W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmed Ali Jan and others (PLD 1981 SC 516), Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522), Government of West Pakistan (Now N.-W.F.P. And 2 others v. Mst. Asmatun Nisa and 6 others (PLD 1983 SC 109), Mehrban v. Abdul Hamid alias Majid and others (PLD 1983 SC 117), Muhammad Sharif v. Afsar Textile Mills Ltd. And another (1985 SCMR 1181 and 1985 SCMR 1865), Zafrullah Khan v. Punjab Public Service Commission and others (1985 SCMR 1193).
4. In rebuttal, learned counsel for the private respondents Nos.3 to 18 aggressively opposed the contentions of the learned counsel for petitioners and asserted that there was a distinct difference in the proceedings before the Referee Court initiated through references filed . By the Collector under section 18 and section 30 of the Act; that as far as proceedings before the Referee Court initiated under section 18 of the Act, powers of the Referee Court were limited to only those matters, which were sent to it by the Collector and once the same had been received, the party concerned could not seek any amendment there; and that referee Court had correctly refused the application of the petitioners for amendment. Reliance was sought upon Fazal Muhammad and 3 others v.
Collector, Land Acquisition and 9 others, (PLD 1973 Note 2 Lahore), Deputy Commissioner, Karachi v.
Seth Sadiq Ali and 9 others (PLD 1973 Note-3 Karachi), Government of West Pakistan (Now Government of N.-W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmed Ali Jan and others (PLD 1981 SC 516), Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522), Government of West Pakistan (Now N.-W.F..P.) and 2 others v. Mst. Asmatun. Nisa and 6 others (PLD 1983 SC 109), Mehrban v. Abdul Hamid alias Majid (Hamidullah) (PLD 1983 SC 117), Ch. Muhammad Sharif v. Afsar Textile Mills Ltd. And another (1985 SCMR 1181), Muhammad Rafique v. The State PLD 1985 SC 207, Ms. Khurshid Bibi v. Allah Ditta 1985 SCMR 1097, Afsar Textile Mills Ltd. v. Muhammad Sharif and another (1973 Law Notes NUC 334. Lahore).
5. Valuable arguments of learned counsel for the parties heard and available record thoroughly perused.
6. The provisions of the Act comprehensively regulate issues relating to acquisition of land for public purpose, including the manner and mode of the classification and fixing the area of land to be acquired, the determination of compensation for the said land, the apportionment and payment of the compensation so determined, the objections of `persons interested' on the said determinations in the Award, and finally the mode and manner of resolution of all the disputes thereof that arise between the parties or deemed appropriate or necessary by the Collector.
7. On reviewing the provisions of the Act, it appears that the general scheme envisaged therein, can best be categorized into the following four stages; Stage-I Request is made for acquiring property for public purpose and a notification in this regard is made to the public.
Stage-II The Collector determines the class and area to be acquired, the compensation to be made and the apportionment and payment of the said compensation for the said proposed acquired property.
Stage-III All "persons interested", who have an objection upon the terms determined in the Award, file their objections to the Collector, who in turn refers the same to the referee Court.
Stage-IV The reference so filed by the Collector is to be decided by the Referee Court.
8. In the present case, the most essential and crucial issue for determination is; whether reference pending before the Referee Court under section 30 of the Act can be amended on the application of a party to the said proceedings or otherwise. This controversy relates to Stage-IV, stated hereinabove.
9. The Act provides for two different circumstances in which references can be referred by a Collector to a referee Court. The said two provisions are sections 18 and 30, which read as follows:-- - "Section 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 the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(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 as 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, subsection (2) or within six months from the date of the Collectors award, whichever period shall first expire."
"Section.30. Dispute as to apportionment: When the amount of compensation has been settled under section 11, if any dispute arises as to the apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court.,"
10. The scope and object of the references provided in sections 18 and 30 of the Act have been very comprehensively dealt with by the apex Court in Ghulam Muhammad case's. (supra).
"Act has provided for two references, under section 18 and the other under section 30 of the Act, but the scope and the object of these two references are quite distinct and separate. Under section 18 the reference is of a dispute with regard to the area or the quantum of the compensation or as to the apportionment of the same amongst the person interested. This reference is strictly limited to the above matters, whereas under section 30 the reference may be made if a dispute arises as to the method of apportionment of the compensation or as to the persons to whom the same or any part thereof is payable. The subject-matter of these later references is limited to disputes purely of title in which the government is not directly interested. ...
But where there is a dispute as to who are the persons interested or as to the extent of their interest or as to the nature of their respective interest that would not be for the Collector to decide under section 18 but should be left to the Courts. To decide upon under section 30'. (emphasis provided)
' The case-law cited at the bar by the learned counsel for respondents Nos.3 to 18 relate to proceedings of referee Court under section 18 of the Act, while the present petition relates to powers of the referee Court to amend the reference under section 30. Hence, the said case-taw cited is distinguishable and cannot be applicable to the facts and circumstances of the present case. Having noted the same on reviewing the decision of the apex Court on the general powers of a referee Court, this Court finds that a very strict view has been taken by the superior Courts in allowing amendments during the proceedings of a reference by referee Court. The reasons for the said strict view have been mainly attributed to the following reasons: ' Firstly, the amendments sought were refused as the same prayed for enhancement of quantum of compensation, which was contrary to the clear provisions of sections 21 and 25 of the Act.
' Secondly, the amendment sought in the reference related to the classification, area or the amount of the compensation of the acquired property. The rational for the refusal of the same was essentially that the proposed amendment affected the government policy or the public exchequer.
' Thirdly, the initial claim of the amount of compensation by the interested person was considered as his admission. Thus he was estopped by his conduct to enhance the quantum of compensation.
' Finally, the apex Court even while refusing amendments in the pending references under the Act, has not closed all doors to all amendments. In this regard, in 'Muhammad Sharifs' case' (supra) the Supreme Court has held that;-- "In effect, therefore, it alone becomes a matter referred under section 18 of the Act and the court has no power to determine or consider anything beyond it .... This being so it was a case where he had intentionally waived his right to claim a hire amount with full knowledge of his existed right, which in law amounted to an implied agreement not to claim a higher amount therefore, this was not a case in which an amendment could have been allowed. . However, no hard and fast rule can be laid down as each case has to be decided on its own facts and to what extent an amendment can be allowed is again a matter which has to be decided on the facts and circumstances of that case . (emphasis provided)
11. Keeping the 'ratio decided' of the aforementioned judgments of the apex Court and the provisions provided in the Act, it is but clear that the amendment so sought by the present petitioners, is neither expressly barred by any provisions in the Act nor does it affect the government policy or the public exchequer. Hence, the provisions for amendment, as provided in the C.P.C. Would be applicable, as is stated under section 53 of the Act.
12. This Court is also alive to the legal position that the Collector has discretion and authority to refer issues regarding the propriety interest of the 'persons interested' to a referee Court, even when there is no objection made to him by the said 'interested persons'. The reference so referred to the referee Court is adjudicated and preceded by the referee Court under section 30 of the Act. Hence, curtailing or restricting the power of the referee. Court in doing complete justice, in such circumstance, would be against the settled principles of safe administration of justice.
13. In the present case, the petitioners are seeking an amendment of their objections, which goes to the very root of their title over the acquired property. They ought to be provided an opportunity to produce evidence to support their claim. They cannot be denied the right to produce evidence in support thereof
14. It may also be noted that the petitioners sought the amendment soon after filing of their objections to the Collector. As there was no long protected delay in seeking the present amendment, it can safely be stated that the petitioners did not intent to abuse the process of law or were indolent in protecting their rights and interest. Moreover, this Court cannot lose sight of the fact that the parties are related to each other and that the acquired property was in fact owned by their common predecessor-in-interest.
15. Now, moving on to the governing provision relating to amendment provided under C.P.C.; Order VI, Rule 17 is relevant and the spirit behind the said provision is to serve and advance justice and thereby to preserve the valuable rights of the parties. Procedure should never be the alter, where justice and rights of parties are to be sacrificed. In fact, technicalities have to be avoided, if not brushed aside, for advancing justice to the parties.
16. Before parting, this Court would like to point out that the findings of the referee Court regarding the Mutations were not legally proper, as the evidence concerning the same was yet to be recorded. Hence, the said findings should not be considered conclusive, unless supported by the evidence produced by the parties.
17. Accordingly, for the reasons stated hereinabove, this Court accepts the present petition and thereby setting aside the impugned judgment and order passed by the referee Court dated 7-4- 2011 The Referee Court is directed to allow the petitioners to amend the reference and thereafter the proceedings are to be expedited and concluding within a period of six months, if not earlier, from the receipt of this judgment.