1. MAMOON RASHID SHEIKH, J.--- The instant appeal under section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act"), calls into question the judgment and decree dated 12-6- 2010 whereby the appellants' Reference under section 18 of the Act, against the Award dated 28-5- 2007 announced by the Land Acquisition Collector, National Highway Authority, Islamabad (respondent No.2), has been rejected by thelearned Senior Civil Judge, Rawalpindi (the Referee Court), being barred by time.
2. 2.The facts relevant for the present purposes are to the effect that respondentNo.1acquiredtheappellants'landmeasuring37 kanals, 12 marlas bearing Khasra Nos.1158/816 and 1159/816 situated in village Manga, Tehsil Murree, District Rawalpindi (hereinafter referred to as "the land"), for the purposes of construction of the Islamabad-Muzaffarabad Dual Carriageway Project (hereinafter referred to as "the Project"). The Notification under section 4 of the Act was published in theofficialGazetteon19-5-2001whereastheNotificationunder section 17(4) was published on 22-8-2005. The appellants appeared before respondent No.2 and submitted their objections. Respondent No.2 announced the Award on 28-5-2007. Feeling aggrieved the appellants on 26-11-2007movedanapplicationbeforerespondentNo.2undersection 18 of the Act for onward transmission of their Reference against the Award dated 28-5-2007 to the learned Referee Court.
3. The Reference was remitted to the learned Referee Court. The respondents entered appearance and resisted the Reference. On the basis of the divergent pleadings of the parties the learned Referee Court framed the following issues: (1)Whether the reference is barred by the time? OPR (2)Whether the petitioner had not come to the Court with clean hand? OPR (3)Whether the petitioners have filed the instant reference with mala fide intention and ulterior motive? OPR (4)Whether the instant reference is frivolous and fictitious and liable to be dismissed with special costs under section 35, C.P.C.? OPR (5)Whether the petitioners are entitled to get a decree as prayed for? OPP The recording of the parties' evidence commenced and whilst the matter was pending for recording of the documentary evidence of the respondents an application under Order VII, Rule 11 of the C.P.C. was moved by the respondents for rejection of the Reference on grounds of limitation.
4. The said application was resisted by the appellants. The learned Referee Court, however, through the impugned judgment and decree dated 12-6-2010 rejected the Reference being barred by time.
5. No other finding on any other Issue was given.
6. 3.The learned counsel for the appellants contends that it is settled law that the jurisdiction to be exercised by a Referee Court under the Act is not an appellate jurisdiction. The Referee Court whilst exercising its jurisdiction under the Act cannot go behind the Reference made to it and hold that the Reference was violative of law because the application was made beyond the period of limitation or for any other reason. Contends that the question of limitation can only be determined by the Collector (respondent No.2 in the instant case). Further contends that the learned Referee Court has erred in law in rejecting the Reference being barred by time as it was not invested with the jurisdiction to go into the question oflimitation.Relieson thejudgmentsreportedasGovernmentof N-W.F.P. through District Collector, Abbottabad and 2 others v. Allah Dad and 6 others (1996 SCM R 384), Fazal Karim and 3 others v. Azad Government of the State of Jammu and Kashmir throughChief Secretary, Muzaffarabad and others (PLD 1998 Supreme Court (AJ&K) 26), Jannat Khan v. ChairmanNational Highway Authority, Islamabad and 3 others (2013 CLC 1134) and Muhammad Yousuf v. Collector Land Acquisition, District Skardu and 6 others (2007 CLC 1288).
7. 4.The learned counsel for the respondents submits that the impugned judgment and decree are unexceptionable. They have been passed in accordance with the law. Submits that the appellants were present in person at the time of making of the Award which is established from the fact that their names are mentioned at Sr. No.9 of the Award. As the appellants were present at the time of making of the Award, therefore, under section 18(2)(a) of the Act the prescribed period of limitation for making the application under section 18 of the Act issix (6) weeks from the making of the Award.
8. In the instant case the Award wasmadeon28-5-2007whereastheReferencewasmovedon26-11-2007 approximately six months after making of the Award, hence, the Reference was hopelessly time- barred. Contends that it is for the Referee Court to determine if a particular Reference is filed within time or not. The learned Referee Court has, therefore, passed the impugned judgment and decree in accordance with the law. Relies on the judgment reported as Azad Government of the State of Jammu and Kashmir v. Muhammad Shafi (PLD 1971 Azad J&K 33).
9. 5.The learned counsel for the appellants, whilst reiterating his earlier submissions, submits that the appellants were neither present nor represented at the time of making of the Award, therefore, it was mandatory upon respondent No.2 to have given a notice to the appellants under section 12(2) of the Act. No such notice was given to the appellants. The Reference was filed as soon as the appellants became aware of the announcement of the Award and the date of filing of the Referenceiswithintheperiodofsixmonthsasstipulatedin section 18(2)(b) of the Act. Further contends, on the basis of the judgments earlier cited by him, that, in any event the question of limitation does not come under the purview of respondent No.2. The impugned judgment and decree is, therefore, liable to be set aside.
10. 6.Arguments heard and record perused.
11. 7.Bothpartieshavelaidgreatstresson theprovisionsof section 18 of the Act in support of their contentions. The relevant provisions of section 18 of the Act are, therefore, being reproduced hereunder for ease of reference: "18. Reference to Court.
12. (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 person to whom it is payable, or the apportionment of the compensation among the persons interested.
13. (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, subsection (2), or within six months from the date of the Collector's award whichever, period shall first expire.
14. (3)
15. From a perusal of the above it is evident that the Act through section 18 provides that if any person is not satisfied with the Award he may file an application before the Collector to refer the matter to the Referee Court for determination of the Referee Court his objection whether it is in respect of the measurement of the land or the amount of compensation payable or the person to whom it is payable or the apportionment of the compensation amongst the persons interested. If the person making the application was present or represented before the Collector at the time of making of the Award then the application has to be filed within six (6) weeks from the date of the Award.
16. However, if the person making the application was neither present nor represented at the time of making of the Award then the application can be made within six (6) weeks of the receipt of the notice from the Collector under section 12(2) of the Act or within six (6) months from the date of the Award whichever period expires first.
17. 8.It is the case of the appellants that the Reference was filed by them under the provisions of section 18(2)(b) of the Act as they were neither present nor represented at the time of making of the Award. Moreover, no notice as envisaged under section 12(2) of the Act was given to the appellants, therefore, the application was filed by the appellants immediately upon coming to know of making of the Award and in any event was filed within six months of the making of the Award as prescribed under section 18(2)(b) of the Act. On the other hand, it is the case of the respondents that since the appellants had been participating in the proceedings before respondent No.2 and were also present at the time of making of the Award, therefore, the period of limitation for making the application is six weeks from the date of making of the Award as stipulated in section 18(2)(a) of the Act. The application of the appellants was, therefore, beyond limitation.
18. 9.We, however, do not propose to go into the above factual controversyasitissettledlawthattheRefereeCourtcannotgo behindtheReferenceandholdthatitwasillegallymadeforthe reasonthattheCollectorhadnopowertodosoastheapplication for making the Reference was filed beyond the period of limitation. Reliance in this regard is placed on the judgment of the Hon'ble Supreme Court of Pakistan reported as 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) wherein it has been held as under:--- "The question posed for consideration relates to the scope and extent of jurisdiction exercised by the Court mentioned in section 18 of the Land Acquisition Act. Sections 18 and 30 of the Land Acquisition Act authorize the Collector to make references to the Court for the determination of those matters referred to therein. Such matters are enumerated in those sections. For reference sake it will be convenient to reproduce those sections:--- "18.--- (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 compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
19. (2)The application shall state the grounds on which objection to the award is taken: 30.When the amount of compensation has been settled undersection11,ifanydisputearisesastotheapportionmentof the same or any part thereof, or as to the persons to whom the same Collector may refer such dispute to the decision of the Court."
20. This is not all. There are other sections which follow section 18, that is, sections 19, 20 and 21 which determine the scope and extent of jurisdiction exercised by such Court. Section 19 relates to the information to be furnished to the Court which also includes, amongst it the objection of the persons interested. Section 20 regulates the procedure for the determination of the objection and section 21 confines the scopes and inquiry of proceedings only to the consideration of the interest of the persons affected by the objection. Similarly, section 30 restricts the scope of jurisdiction to the determination of the apportionment of the amount of compensation. These sections are a part of a special Act which provides for the acquisition of land for a public purpose and the determination of the compensation payable to the persons affected by such acquisition. Therefore, the extent and scope provided therein must constitute the jurisdiction of the designated Court which hears the reference. Such is the connotation of the word "jurisdiction".AsheldbythisCourtinStatev.Zia-ur-Rahman (1):--- "It may well be asked at this stage as to what is meant by 'jurisdiction'? How does it differ from 'judicial power'? Apart from setting up the organs the Constitution may well provide for a great many other things, such as the subjects in respect of which that power may be exercised and the manner of the exercise of that power. This it may provide that the Courts set up will exercise revisional or appellate powers or only act as a Court of a cessation or only decide constitutional issues. It may demarcate the territories in which a particular Court shall function and over which its writs shall run. It may specify the persons in respect of whom the judicial power to hear and determine will be exercisable. These are all matters which are commonly comprised in what is called the jurisdiction of the Court.
21. It expresses the concept of the particular res or subject-matter over which the judicial power is to be exercised and the manner of its exercise. Jurisdiction is, therefore, a right to adjudicate concerning a particular subject-matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court.
22. It is, accordingly, in aid of this jurisdiction that the judicial power, which resides in it, is exercisable for resolving the matters in controversy. Clearly, therefore, the extent of this jurisdiction is not the same as one conferred on a Court of general jurisdiction while hearing a suit under section 9, C.P.C.
23. It is only when a reference is made under section 18 that the designated Court is empowered to act and not otherwise; and while exercising its jurisdiction, it cannot go behind the reference and hold that it was illegally made for the reason that the Collector had no power to do so as the application for making the reference was made beyond time. Such exercise of judicial power must be eminent from the jurisdiction otherwise it cannot be exercised."
24. 10.The above precedent has been consistently followed as is evident fromthejudgmentsreportedasGovernment of West Pakistan (now N-W.F.P.) and 2 others v. Mst.
25. Asmatun Nisa and 6 others (PLD 1983 SC 109), Muhammad Rafique Khan v. Province of Punjab through Collector Bahawalpur and another (1992 CLC 1775), Muhammad Sharif and 12 others v. Oil and Gas Development Corporation, Club Road Branch, Karachi throughChairman and 2 others (2001 YLR 618); and the judgments cited at the bar by the learned counsel for the appellants viz. Government of N-W.F.P. through District Collector,Abbottabad and 2 others v. Allah Dad and 6 others (1996 SCM R 384), Fazal Karim and 3 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzatfarabad and others [PLD 1998 Supreme Court (AJ&K) 26], Jannat Khan v. Chairman National Highway Authority, Islamabad and 3others (2013 CLC 1134) and Muhammad Yousuf v. Collector Land Acquisition, District Skardu and 6 others (2007 CLC 1288).
26. 11.In view of the above stated position of the law we find that in the facts and circumstances of the case the question of limitation could not have been decided by the learned Referee Court as whilst exercising its jurisdiction under section 18 of the Act it could not have gone behind the Reference and rejected the Reference being barred by limitation or to indeed hold that the Reference had been illegally made as the application for making the Reference was beyond time.
27. 12.Under the circumstances, we accept the appeal, set aside the impugned judgment and decree dated 12-6-2010 and remand the matter to the learned Referee Court for decision in accordance with the law on Issues Nos.2 to 5, quoted in para 2 hereinabove, after affording opportunity to the parties to complete their evidence. The record of the case be remitted forthwith.
28. There is no order as to costs.