' SHAHID WAHEED, J.--- This appeal under Section 54 of the Land Acquisition Act, 1894 (herein after called the Act) calls into question the judgment dated 07.12.2012 of the learned Senior Civil Judge, Narowal whereby the reference filed by the appellant for enhancement of compensation for his land, which was acquired for the construction of District Headquarter Hospital, Narowal, was dismissed.
2. The background of the case is that on 01.05.1999 the District Collector, Narowal published under Section 4 of the Act a notification that 119 kanals, 15 marlas of land was intended to be acquired for the purpose of construction of ,District Headquarter Hospital, Narowal. Consequent upon the said notification the Land. Acquisition Collector initiated process to make his award determining'the compensation for the acquired land. During said process the present appellant moved this Court through a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 i.e, Writ Petition No,7368 of 2000 with a prayer that a direction be issued to the Land Acquisition Collector to look into his grievance/request while determining the price of the land. This petition was disposed of vide order dated 28.04.2000 with the observation that the contention/evidence of the appellant as to the quantum of compensation, would be duly considered by the competent authority while assessing the compensation for the appellant's land. Pursuant to the said order the appellant along with another land owner, i.e, Professor lnam son of Jan Muhammad appeared before the Land Acquisition Collector and led evidence for determination of compensation. The Land Acquisition Collector after recording evidence dismissed the objections raised by the land owners including the present appellant and made' the award (Ex.D-16) under Section 11 of the Act.
After the announcement ' of award, the present appellant made an application dated 21.04.2001 (Ex.D-17) before the Assistant Commissioner/Collector, Narowal for the payment of compensation.
This application was allowed and the appellant accordingly vide voucher No,31 (Ex.D-18) received the compensation without any protest.
3. Before proceeding further it is worth mentioning here that the other land owner, that is, Muhammad Inam being aggrieved by the compensation determined by the Land Acquisition Collector filed a reference under Section 18 of the Act. This reference was dismissed by the Referee Court vide judgment dated 16.03.2006 (Mark-A). On the contrary, the appellant on 27.02.2001 instituted a suit for permanent injunction against the respondents. This suit was, however, dismissed as withdrawn vide order dated 18.11.2006. After the dismissal of the said suit, the appellant on 15.01.2007 for enhancement of compensation for his land measuring 09 kanals, 10 marlas filed a petition under section 18 of the Act before the Collector praying therein to refer the matter to the learned Senior Civil Judge. Since this petition was filed after 06 years, the Collector sought opinion of the Executive District Officer (Law) as to whether the same was within time and maintainable? The record does not show as to whether the Executive District Officer (Law) had made any opinion; and, as to whether the Collector allowed the petition through any order. This fact was not adverted to by the learned Trial Court while passing the impugned judgment. The claim set up in the reference was, however, controverted by the present respondents. On pleadings the learned trial Court framed following issues and directed the parties to adduce evidence in support of their respective claims:- ISSUES:
1. Whether the application is within time? OPA.
2. Whether the award in dispute is liable to be modified on account of improper assessment of compensation? OPA.
3. Relief.
4. In compliance with the direction of the learned Trial Court parties to the reference led oral as well as documentary evidence in support of their respective claims. On consideration of the matter the learned Senior Civil Judge while returning findings in respect of issue No, I held that the reference filed by the appellant was beyond the period of limitation as prescribed in Section 18 of the Act, therefore, the same was barred by time. On the basis of said findings the reference was dismissed being barred by time vide judgment dated 07.12.2012.
5. The appellant through this appeal has assailed the judgment dated 07.12.2012 on the ground that the Trial Court had no jurisdiction to dismiss the reference under Section 18 of the Act on the ground of limitation. We confronted the learned Additional Advocate General with the said objection and asked as to how the learned Trial Court could dismiss the reference under Section 18 of the Act on the ground of limitation. He could not give any plausible reply. After hearing both sides we find substance in the above noted ground. It is now well settled that once the Collector has made reference to the Court, the Court would be incompetent to go beyond the reference to see whether the petition A under Section 18 of the Act had been filed within time as prescribed in proviso to Section 18 of the Act. In this regard reference may be made to the case of "Government of West Pakistan (Now Government of N. W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmed Ali Jan and others" (PLD 1981 Supreme Court 516).
6. Notwithstanding above there is another aspect of the matter which has engaged our attention.
In the present case the Land Acquisition Collector after evaluating the evidence led by the appellant determined the compensation of the land vide his award (Ex.D-16). Subsequently, the present appellant on 21.04.2001 moved an application (Ex.D-17) before the Collector for the payment of said compensation. It is evident from the evidence that the appellant received the compensation without any protest vide voucher No, 31 (Ex.D-18). We also asked learned counsel for the appellant as to whether any protest was raised by the appellant while receiving the compensation. He replied in the negative. This aspect of the matter was important and, therefore; could not be ignored particularly in view of the principle settled by the Hon'ble Supreme Court of Pakistan in the case of "Government of N.W.F.P. And other v. Akbar Shah and others" (2010 SCM R 1408). It was held in the said precedent case that land owner after having received awarded compensation without protest had no lawful right even to file reference under Section 18 read with Sections 30 and 31(2) of the Act.
7. We confronted learned counsel for the parties with the principle settled by the Hon'ble Supreme Court of Pakistan in the case of Akbar Shah (Supra) and sought their assistance for the order to be proposed in this appeal. Learned counsel for the parties jointly submit that since the above noted aspect of the matter was neither considered by the learned Trial Court nor an opportunity was given to the parties to explain their position, it would be appropriate to remit the case to the learned Trial Court with the direction to decide the same afresh in accordance with law. It is also jointly submitted that while remitting the matter the learned Trial Court be also directed to record its findings on the following questions/issues:-
(a) Whether the Collector had decided the appellant's petition under Section 18 of the Act through any order?
(b) Whether the Collector had sent the reference to the Court through any letter/memorandum etc.?
(c) Whether the appellant after having received awarded compensation without protest had any lawful right' to claim enhancement in compensation?
8. In view of the joint request made by the learned counsel for the parties this appeal is allowed and judgment dated 07.12.2012 of the learned Senior Civil Judge, Narowal is hereby set-aside.
Consequently the matter is remitted to the learned Senior Civil Judge. Narowal who shall decide the same afresh in accordance with law. The learned Trial IC Court is also directed to decide the above noted questions/issues (recorded in para 7 hereinabove) while deciding the reference under Section 18 of the Act. Parties shall appear before the learned Senior Civil Judge, Narowal on 04.11.2016. No order as to costs.