' YAHYA AFRIDI, J.---This revision petition is directed against the judgment and decree dated 16-11- 2009 passed by the Additional District Judge-IV, Haripur, whereby, the appeal of the petitioner against the judgment and decree dated 21-10-2009 of Civil. Judge-III, Haripur, was dismissed.
2. The brief and essential facts as averred by the present petitioner in the plaint are that Basic Health Unit Bagra ("BHU") was constructed on metalled Road known as "Durshkhail Karwala" in the year. 1982 and there was no need of any path for the said BHU; that the respondents Nos.1 to 3, at the instance of respondent No,4, were bent , upon to acquire an area measuring 1 'Kanal' 6 'Marlas' from 'Khasra' Nos.718 and 719, situated in village Durshkhail Tehsil and District Haripur ("disputed property") owned and possessed by the petitioner, for construction of a path to BHU, Bagra; that in this regard the petitioner instituted. Civil Suit No,273/1 and while the same was pending in the Civil Court, the respondents in order to defeat the rights of the petitioner in the said suit, wrongly and illegally wanted to acquire the disputed property and due to the said illegal act of the respondents, the petitioner would suffer irreparable loss; and that the petitioner also prayed for permanent injunction restraints restraining from acquiring the disputed property or issuing notification under section 4 of the Land Acquisition Act, 1894 ("Act").
3. The respondents contested the suit of the petitioner by filing their written statement, wherein, they denied the assertions of the petitioner.
4. The learned trial Court, after hearing the learned counsel for the parties, dismissed the suit of the petitioner by invoking provisions of Order VII, Rule 11 of Civil Procedure Code, 1908 ("C.P.C.") for not having jurisdiction to entertain matters relating to acquisition of property by the Government.
5. Aggrieved thereof, the petitioner preferred an appeal before the Appellate Court, which too, was dismissed. Hence, this revision petition.
6. The learned counsel for the petitioner vehemently contended that the decisions of both the Courts below are against the law and facts and based on illegal exercise of jurisdiction with material irregularity and illegality; that the civil Court had the jurisdiction to determine the important legal questions regarding the acquisition of disputed property in the public interest for BHU Bagra or otherwise; that both the Courts below have failed to exercise jurisdiction to resolve the controversy between the parties; and that there to is no clear and express bar in the Act barring the jurisdiction of Civil Court, which under provisions of C.P.C. Has exhaustive powers to hear and decide all matters relating to civil nature. In support thereof he seeks reliance on the case of Noor Avenue Cooperative Housing Society, Hanjarwal Lahore v. Lahore Development Authority and others "(2008 CLC 200), Ghulam Hassan and another v. Provincial Government and others (2007 CLC 1211) and Provincial Government Northern Areas v. Safar Khan and others (2007 CLC 1587).
7. The Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
8. This Court had vide order dated 68-2012 noted that:- "A.A.-G. Seeks time to assist the Court and undertakes to file affidavit of the concerned official to confirm regarding the status of the acquisition of property, which has been challenged in the present petition."
' In consequence thereof, today, the learned D.A.G. Has submitted an affidavit which is placed on file, which reads that:- I Muhammad Naeem Khan, District Officer, Revenue and Estate/Collector Haripur do hereby solemnly affirm on oath that on the request of Deputy District Officer WS&S Department Haripur vide his letter No,01/G-35 dated 10-9-2009 Draft Notification under section 4 of the Land Acquisition Act, 1894 was issued vide No,Acqn:/ 258/DOR&E(H) dated 21-10-2009 for acquisition of land measuring 01 Kanal and 06 Marlas at village Dureshkhel (Bagra) bearing Khasra No,718/1 and 719/1 for the public purpose namely construction of road/path leads to BHU Bagra, It is pointed out that as per attached report of local commission comprised of Civil Judge-V, Haripur followed by the order dated 16-11-2009 of the learned Additional District and Sessions Judge, Haripur. After observing all the codal formalities under Land Acquisition Act, 1894, the Award was announced vide No,99 dated 26-11-2009. (Reference attached).
'It is further added that the petitioner has also filed an objection petition to enhance the rate of land, in question, which is under trial in the court of learned Additional District and Sessions Judge-I, Haripur. As far as the Commission comprised of Tehsildar, Haripur is concerned, the same was appointed after the announcement of Award, as such it has no legal value, nor can its report be preferred over the report of local commission comprised of learned Civil Judge-V Haripur followed by the order of Additional District and Sessions Judge IV Haripur. It is imperative to mention that the piece of land under acquisition is beyond of shrine/graveyard. Road has already been completed and thousands of peoples are benefited.
' It is also further added that this 'affidavit is being produced in the case titled Syed Mehboob Shah Advocate v. Land Acquisition Collector Haripur and others before the honourable High Court, Abbottabad Bench, Abbottabad."
(emphasis provided)
9. Perusal of the record would reveal that the present petitioner had filed the present suit, seeking, 'inter alia' , declaration and permanent injunction restraining the respondents from issuing Notification under section 4 of the Act and the said suit was dismissed by the trial Court on 21-10- 2009 and the respondent No,1 had issued Notification under section 4 of the Act; that the petitioner filed appeal against the judgment of the trial Court in the Court of Additional District Judge-IV, Haripur on 22-10-2009; that the learned Appellate Court sent Mr. Muhammad Irfan, Civil Judge-V, Haripur, as local commission for spot inspection, on 4-11-2009; and that the appeal of the petitioner was, based on the finding of the commission, dismissed on 16-11-2009; and that Notification under section 6 of the Act was issued on 19-11-2009 and that the Award was made under section 11 of the Act on 26-11-2009.
10. In the first instance, in order to determine whether the civil Court had jurisdiction to adjudicate or entertain the claim of the petitioner, this Court considers it appropriate to identify the matters, wherein the Referee Court has the jurisdiction and the remedies available to an aggrieved person against any order under the Act.
Any person or the landowners aggrieved of the acquisition of the land by the Government may avail the remedies at different stages under the provisions of the Act, are described as follows: "5-A. Hearing of objections.---(1) Any person interested in any land which has been notified under section 5 as being needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under subsec- ' tion (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision of the Executive District Officer (Revenue) together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the Executive District Officer (Revenue) on the objections shall be final.
(3) Where land is needed for Company, the Collector shall, after making such enquiries as he deems necessary, also make his recommendations to the Executive District Officer (Revenue) with regard to the area that in his opinion is reasonable for the purpose.
(4) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.
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 person 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 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.
(3) Notwithstanding anything to the contrary contained in section 21, the Provincial Government may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award; provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for inquiry into and determination of the objection against the award.
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.
49. Acquisition of part of house or building.---(1) The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired: ' Provided that the owner may, at any time before the Collector has made his award under section 11, by notice in writing withdraw or modify his expressed desire that the whole of such house, manufactory or building shall be so acquired: ' Provided also that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of this section, the Collector shall refer the determination of such question to Court and shall not take possession of such land until after the question has been determined.
' In deciding on such a reference, the Court shall have regard to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use for the house, manufactory or building.
(2) If, in the case of any claim under section 23, subsection (1), thirdly, by a person interested, on account of the severing of the land to be acquired from his other land, the Executive District Officer (Revenue) is of opinion that the claim is unreasonable or excessive, he may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms apart.
(3) In the case last hereinbefore provided for, no fresh declaration or other proceedings under sections 6 to 10, both inclusive, shall be necessary; but the Collector shall without delay furnish a copy of the order of the Executive District Officer (Revenue) to the person interested, and shall thereafter proceed to make his award under section 11."
11. Now, the question which begs an answer would be whether the Act provides a remedy for a person aggrieved of the acquisition of property on the ground of 'mala fides' or 'illegalities' and that too prior to the issuance of the Notification under section 4 of the Act. The answer is in the negative.
' This Court further notices that there is no provision in the Act, which has either in express or implied terms ousted the jurisdiction of the civil Court to adjudicate and decide the grievance of a landowner on acquisition based on 'mala fide' in identification of a property to be so acquired under the Act.
' Thus, the exclusion of the civil Court's jurisdiction cannot be readily inferred and that such exclusion must be expressly provided in clear terms or be clear by implied terms of the Act. Section 9 of the Civil Procedure Code; 1908 ("C.P.C.") signifying this principle reads: "9. Courts to. Try all civil suits unless barred. The court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
' Explanation I. ---A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
' Explanation II. ---For the purpose of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place."
' This Court further seeks guidance from the judgment of apex Court in Abbasia Cooperative Bank's case (PLD 1997 SC 3), wherein, the full Bench of the Hon'ble Supreme Court has very eloquently described principles concerning the determination of jurisdiction of civil Court to examine the validity of an action or an order of executive authority or a special tribunal, which was challenged on the ground of ouster of jurisdiction of the civil Court. It was held that the following 'condition precedents' were to be fulfilled; "(a) that the authority or the tribunal was validly constituted under the Act,
(b) that the order passed or the action taken by the authority or tribunal was not mala fide;
(c) that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal; and
(d) that in passing the order or taking the action, the principles of natural justice were not violated.
' Unless all the conditions mentioned above are satisfied, the order or action of the authority or the tribunal would not be immune from being challenged before a Civil Court. As a necessary corollary, it follows that where the authority or the tribunal arts in violation of the provisions of the statutes which conferred jurisdiction on it or the action or order is to excess or lack of jurisdiction or mala fide or passed in violation of the principles of natural justice, such an order could be challenged before the Civil Court in spite of a provision in the statute barring the jurisdiction of Civil Court."
' In Hamid Hussain's case (1974 SCM R 356), the apex Court has gone to the extent by holding that:- "Such tribunal of special jurisdiction has no jurisdiction to determine any facts on the basis of which it will have the power to assume jurisdiction and made order falling within its jurisdiction. "
' In view of above legal discourse, it is clear that the civil Court has the jurisdiction to adjudicate upon the grievance of the petitioner, as he has challenged the very identification and purpose of the property being acquired by the respondents on the ground of ' mala fide' and in addition, the same was made before the issuance of notification under section 4 of Act was made.
' In view of the factual disputes, especially when there are three divergent reports on the record,, this Court in revisional jurisdiction would not deem it appropriate to interfere with the matter, which requires proper adjudication by the trial Court itself. The questions which require adjudication by, the trial Court as 'preliminary issues' are:-
(I) Whether the property of the petitioner, which was acquired by the respondents has actually been utilized for the 'public purpose' for which it was acquired or some other property is being utilized for the same, and;
(II) Whether the petitioner has invoked the provisions of the Act for enhancement of the compensation for property acquired, and if so what would be its effect to the present suit.
12. Accordingly, for the reasons stated hereinabove, this revision petition is accepted, the impugned judgments and decrees of the Courts below are set aside and the case is remanded back to the trial Court for decision afresh for finally settling the dispute between the parties, in accordance with law, and that too in the light of observations made hereinabove.
13. Parties are directed to appear in the trial Court on 13-3-2013.