QADEERUDDIN AHMED, C. J.--This appeal arises from the order of a II-Additional District Judge, Hyderabad, dated the 23rd of November 1963, by which he enhanced the amount of compensation after recording evidence and examining the objections of the respondents.
2. The facts which form the background are that 1 acre 4 ghuntas of land from S. No, 105 and 33 ghuntas from S. No, 110, situated in Deh Gujjo in the out-skirts of Hyderabad City were acquired for the requirements of Pinyari Feeder of the Lower Sind barrage. The Collector awarded Rs, 2,577.23 as compensation and sent notice of the award to the predecessor of the respondents, namely, HO Abdul Latif under section 12 (2) of the Land Acquisition Act, 1894 who received it on the 18th of July 1960. He applied for a certified copy of that award on the 20th of July 1960 with the result that the copy was prepared and delivered to him on the 31st of August 1960. He submitted written application to the Collector for reference to be made to the Court in terms of section 18 of the Land Acquisition Act and the required reference was made by the Collector on the 10th of March 1961.
When the reference came up for disposal before the Court it issued notice to the present appellant who submitted objections to the reference on the 18th of January 1962. The first objection was that the reference was barred by time, but it was not embodied in the issues when the Court framed them on the 29th of May 1963. The issues which he framed are as follows : (1)Is the compensation awarded by the Land Acquisition Officer adequate or not?
(2)What should be the reasonable and adequate compen-sation?
(3)Is the reference by the Land Acquisition Officer barred under section 31 of the Land Acquisition Act?
(4)What should the decree be?
Evidence was produced by the parties and thereafter the Court gave its award in terms of section 26 of the Land Acquisition Act. The Government of West Pakistan had preferred this appeal against the order of the Court and was admitted to regular hearing on the 17th of August 1964.
3. Mr. Hyder All Pirzada appearing on behalf of the appellant has raised only one objection which is purely of legal nature. He has contended that the reference was barred by time and that this objection was raised before the Court but it was not embodied in the issues and was neither examined nor decided by the Court. In support of the contention that the reference was barred by time, counsel has referred to clauses (a) and (b) of the Proviso to subsection (2) of section 18 of the Land Acquisition Act, 1894. The provision is as follows : "18 (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."
In this case Haji Abdul Latif on whose application reference was made was not present at the time of the award and notice was sent to him in terms of clause (b) of the Proviso to subsection (2) of section 18 of the Land Acquisition Act, 1894; therefore, the time limit for him to apply for a reference was six weeks from the receipt of the notice from the Collector. He applied for a reference beyond six weeks if the time which was spent in obtaining the certified copy of the award is not taken into consideration but if that time is taken into consideration then his application for reference was within time.
4. Counsel for the appellant has contended that his application and therefore the reference were out of time because the period of six weeks' limitation could not be extended in terms of section 12 of the Limitation Act because this period of limitation was not fixed in the Schedule of the Limitation Act but was fixed by a special legislation, namely, the Land Acquisition Act, 1894.
5. The above statement of the background would indicate to that the first contention of counsel for the appellant that the Court has not applied its mind and decided the objection of limitation and that the reference was barred by time. The correctness of this contention has been disputed by counsel for the respondents who are the heirs of Haji Abdul Latif who has died during the proceedings in which the reference was considered and disposed of. Counsel has argued that irrespective of whether the law specifically permits the exclusion of the time needed for obtaining a certified copy of the order with which a party is dissatisfied it is necessary for such a party to be able to know precisely the grounds of that order, that it should obtain a copy of it and that therefore the time spent by such a party in obtaining a copy of the order should be excluded for computing the period of limitation. Secondly, he argued that the Court which examined and decided the reference had no jurisdiction to go into the question as to whether the reference was within time or not.
6. From the foregoing it follows that the question for consideration in this appeal is as to whether the Additional District Judge who has disposed of the reference had the jurisdiction to examine the question of limitation or not, because for the purposes of his award it is immaterial whether the reference which was before him was made within time or not. This question has been the subject of examination in a large number of cases and conflicting views have been expressed in them.
Counsel for the appellant has given a list of those cases which were decided in India before Partition and after Partition and in which the view taken was that it was open to the Court to which reference is made by the Collector to consider and decide whether the reference was made within time or not. According to the list given by counsel, this view was taken in 16 cases before Partition and in four cases after Partition. We do not think that the list can have any claim to being exhaustive. Apart from the cases which were decided in India many cases have been decided after Partition in Pakistan also. A list of those cases has been given by counsel for the respondents which is as follows : (1)Abdul Sattar and another v. Mst. Hamida Bibi PLD 1950 Lah. 370.
(2)The Land Acquisition Collector, Rawalpindi v. Lt.-Genf. Wajid AU Khan Burki PLD 1960 Lah. 469.
In these two cases view which prevailed was that the question of limitation could be considered by the Court at the time of disposing of a reference. The other cases are: (1)Sind Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad and others PLD 1960 Kar. 826.
(2)Bashir Ahmad and others v. The Collector, Multan PLD 1962 Lah. 292.
(3)The Collector of Karachi v. Fida Hussain Muhammad Ali Latta PLD 1965 Kar. 573.
(4)Collector of Karachi v. Haft Gola and others PLD 1965 Kar. 413.
(5)Government of West Pakistan v. Ch. Muhammad Saddiq PLD 1968 Kar. 697.
In these cases the view which was accepted was that the question of limitation could not be examined by the Court to whom the reference was made by the Collector in terms of section 18 of the Land Acquisition Act, 1894. The Full Bench judgment in the case of Abdul Sattar and another v.
Hamida bibi was written by the Chief Justice Muhammad Munk. We think that two extracts from his judgment may be reproduced for clarification of the idea. He has observed at page 384 as follows: "It cannot, therefore, be said that there was any dispute before the Collector as to the person to whom the amount of the compensation was payable, and that being so, no reference under section 18 of the Act could be made. In fact that application asked for no reference to the Court, and in this respect the case is similar to the Allahabad case in Sukhbir Singh v. Secretary of State for India I L R 49 All. 212, where it was held that if the application on which reference is made under section 18 of the Act does not ask for a reference, but a reference is made by the Collector, the Court is entitled to refuse to act on the reference."
The view of law which has led to the above view is explained at page 383 as follows: "Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction, and where the jurisdiction of such tribunal is dependent upon the existence of certain facts or circumstances, it is its obvious duty to see that those facts and circumstances exist to invest it with jurisdiction. And where a tribunal derives its jurisdiction from the statute that creates it, and that statute also defines the conditions under which that tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen. As was remarked by the Privy Council in Nussarwanjee Pestonjee v. Meer Mynoodeen Khan 6 M I A 134 at page 155, wherever jurisdiction is given to a Court by an Act of Parliament, and such jurisdiction is only given upon certain specified terms contained in that Act, it is universal principle that these terms must be complied with, in order to create and raise the jurisdiction, for, if they be not complied with, the jurisdiction does not arise. Therefore the Court functioning under the Land Acquisition Act being a tribunal of special jurisdiction, it is its duty to see that the reference under that Act is made to it by an authority competent to make the reference and that the reference relates to a matter which can be referred to it under that Act.
I agree with the observations of Beaumont, C. J., with which Rajodhyaksha, J. agreed in Mahadeo Krishna Parkat v. Mameledar of Alibagh AIR 1944 Boma 200 that since the Collector has power to make a reference " on certain specified conditions the Court is bound to satisfy that the reference1 made to it by the Collector complies with those conditions, so as to give the Court jurisdiction to hear the reference, because if the reference does not comply with the terms of the Act, than the Court cannot entertain it."
The consideration behind the above observations clearly shows that a reference which is outside the jurisdiction of the Court to which it is made should not be entertained merely because the jurisdiction of the Court is limited. On the contrary it is a concomitant of limited jurisdiction that inquiry into the existence of such conditions which confer such jurisdiction should be made. In that case the reference was made without an application ; therefore, it suffered from a defect which was patent on the face of the record. In the second case of the Land Acquisition Collector, Rawalpindi v. Lt.-General Wajid Ali Khan Burki a Division Bench considered the question of the competence of the referring Court to examine the question whether it had the jurisdiction to entertain the reference or not, Shabir Ahmad, J. wrote the leading judgment in which he mentioned four cases which were inconsistent with the view that it had such jurisdiction and two cases which were consistent with that view. The learned Judge has observed at page 477 as follows :-- "The fact that the Collector has made a reference purporting to act under section 18 of the Land Acquisition Act, 1894, does not preclude the Court from determining the question whether or not the reference conforms to that provision of law. If this were not the law, the Collector would have to be held to have been given unlimited power to make a reference to the Court in spite of the fact that the law in very clear terms limits those powers. It is true that under the provisions of that Act the Court will get jurisdiction to look into the matter only if a reference is made under section 18 of the Land Acquisition Act but from that it cannot be inferred that if the matter has come to the Court on a reference under section 18 the Court is bereft of its ordinary power to determine that the proceedings it is called upon to take can be taken by it. If the Legislature had intended that once a reference has been made, the Court has to concern itself only with the questions referred to it, one would have expected that the Legislature would not have laid the conditions which must exist before a reference can be made by the Collector, but one finds' that in section 18 of the Land Acquisition Act, 1894, the Legislature has mentioned the conditions on the existence of which a reference can be made by the Collector. I would, therefore, hold that the learned District Judge was competent to decide whether or not the reference made by the Collector was in accordance with law, and it was open to him to find that it was not so, and reject it, or to proceed with the hearing after holding that it was properly made."
The background of the above observations also appears to be that conformation to the provisions of law under which a reference is made goes to the root of the matter ; therefore, the existence of the conditions which confer the jurisdiction to decide a reference should be ascertained by the Court, to which reference is made but this view has been considered to be clinched by reason of the conditions which are the pre-requisite of a reference under section 18 of the Land Acquisition Act, 1894, which difficulty with respect to this view very respectfully is that the existence of the pre- requisite conditions in the section does not perhaps necessarily lead to the conclusion that any particular officer should have the jurisdiction to decide whether it exists or not. In this connection, we feel it appropriate to invite attention to the definitness with which the jurisdiction of the Court to which reference is made has been circumscribed by the relevant provisions of law. The relevant provisions for the purposes of this discussion are sections 18, 19, 20 and 21 of the Land Acquisition Act, 18)4. Section 18 lays down the circumstances under which a reference can be made. It is as follows : "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 the2 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."
Subsection (1) says that the matters which can be referred by the Collector for determination by the Court are only an objection to the measurement of the land, to the amount of compensation, to the persons to whom it is payable and the apportionment of the compensation amongst the persons interested. The information which the Collector has to send to the Court is specified in section 19. That section is as follows :- "19, Collector's statement to the Court.
(I) In making the reference, the Collector shall state for the information of the Court, in writing under his hand,-- (a)the situation and extent of the land, with particulars of any trees, buildings or standing crops thereon ; (b)the names of the persons whom he has reason to think interested in such land; (c)the amount awarded for damages and paid or tendered under sections 5 and 17, or either of them, and the amount of compensation awarded under section 11 ; and (d)if the objection be to the amount of the compensation, the grounds on which the amount of compensation was determined.
(2) To the said statement shall be attached a schedule giving the particulars of the notices served upon, and of the statements in writing made or delivered by, the parties interested respectively."
The above provision shows that matters of limitation and all those matters which fall outside the provisions of the above section are outside the competence of the Collector for referring to the Court. Section 20 contains directions for the Court, to which reference is made. The section is as follows :- "20. Service of notice.--The Court shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons namely :- (a)the applicant ; (b)all persons interested in the objection except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and (c)if the objection is in regard to the area of the land or to the amount of the compensation, the Collector."
A glance at the above provision will show that immediately on receipt of a reference the Court has to cause a notice to be given specifying the date on which it is to proceed to determine the objection which is referred to it. All persons interested in the objection are to be notified but the purpose of the hearing is nothing more than the disposal of the objection that is referred to the Court. Section 21 restricts the scope of the proceedings specifically. It is as follows :-- "21. Restriction on scope of proceedings.--The scope of the inquiry in every such proceedings shall be restricted to a consideration of the interests of the persons affected by the objection."
According to the above provision, the persons interested are those who are to get compensation.
7. In this connection we may refer to the view expressed by a Division Bench of the Peshawar Judicial Commissioner's Court in S. Attar Singh R. S. Sardar Hira Singh v. Secretary of State . The relevant observations are as follows :-3 "In our opinion a reference to the Act itself indicates that the decision on a question of Limitation on an application under section 18, Land Acquisition Act, rests with the Collector and not with the District Judge. Section 18 requires the Collector on application made to him to refer for the determination of the Court any objection as to the measurement of the land, the amount of compensation, the persons to whom it is payable or the apportionment of the compensation amongst the persons interested. The grounds of the objection are to be stated in the application to the Collector and in the same section there is a proviso relating to the time within which the application is to be made to the Collector, section 19 then states that in making the reference the Collector has to give certain information to the Court. It is to be noted that the section does not specifically direct the Collector to make the reference. Section 20 then directs the Court to proceed to determine the objection and section 21 limits the scope of the inquiry to a consideration of the interests of the persons affected by the objection."
The above views were expressed in a case in which the District Judge, Peshawar, had rejected the objections of the petitioner on the ground that they were time-barred. That order of the District Judge was questioned in a revision petition and was accepted. The District Judge was directed to dispose of the objections on merits.
8. The above judgment has been cited with approval by a Division Bench of the Karachi Seat in Sind Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and others and also by a Division Bench of the Lahore Seat in Bashir Ahmed and others v. The Collector, Multan .
The above-mentioned three judgments emphasise the positive restrictions on the scope of the inquiry that have been placed by the law. These restrictions appear to lead to the conclusion that the observations contained in the Full Bench judgment of the High Court of Lahore about the general principle of law that a tribunal of limited jurisdiction is entitled to consider whether the prerequisites of the exercise of that jurisdiction exist or not becomes excluded by virtue of these restrictions.
9. In order to examine the above aspect we have heard counsel for the parties on two days and felt difficulty in the beginning to make up our mind because it appeared odd to us to take a view which can give the impression that the Collector is the final arbiter of the existence or non-existence of the conditions in which a reference can be made. We felt that such a view could be said to have the impropriety of depriving the Court to which reference is made to consider whether such conditions at all exist or not. On the other hand, we do not see our way for getting over the restrictions which are positively placed on the scope of the inquiry from the time of making a reference until its disposal. During the progress of the arguments and in consequence of a large number of judgments which were cited before us we felt that the solution of this problem lay in the existence of revisional and Constitutional jurisdictions of the High Court to rectify jurisdictional errors made by the Collector. In the Peshawar case to which a reference has been made above a revision application was entertained and due directions were given. The remedy of revision was also adopted in Ahmed Ali Khan Alawi v. Secy. of State . From the judgment of the Supreme Court in Ghulam Muhammad v. Government of West Pakistan we find that the Constitutional jurisdiction of the High Court was invoked for getting such errors made rectified.
10. The overall conclusion is that it is not within the power of the Court to which reference is made to decide matters which are not referred to it, which fall outside the information which is supplied to it by the Collector under section 19 of the Land Acquisition Act, 1894 and with respect to which only he can issue notice to the interested persons for appearance, and lastly which are outside the scope of the proceedings in terms of section 21 of the Land Acquisition Act, 1894. This, however, does not mean that if there is a defect patent on the face of the record such, for instance, as a reference by somebody who is not the Collector or a reference made without an application for it, then the Court to which reference is made is not bound to go ahead in futile exercise of holding4 5 6 7 proceedings. We think that the distinction between these defects which are patent on the face of the record and other defects which may be discoverable by peeping inquisitively into the matter is not unknown. We feel that this view does not create a problem for the aggrieved party because it is open to him to seek remedy by invoking the revisional, Constitutional or any other jurisdiction of the High Court that may be available.
11.In conclusion, we dismiss this appeal with no order as to costs. PLD 1950 Lah. 370 PLD 1960 Lab. 469 AIR 1940 Pesh. 35 PLD 1960 Kar. 826 PLD 1962 Lab. 292 AIR 1932 Sindh 180 PLD 1967 SC 191