MUHAMMAD NAEEM ANWAR, J. Through this single judgment in the instant petition, we propose to decide instant petition as well as WP No.1206-M/2022 titled "Gul Muhammad Vs. Government of Khyber Pakhtunkhwa through Chief Secretary and 09 others" as an identical question of law pertaining to the reference/objection petition filed under sections 18/30 of the Land Acquisition Act, 1894 (the Act of 1894) turned down by respondent No.4 (Collector/ Deputy Commissioner, Malakand at Batkhela), being time barred.
2. Petitioner of instant petition is the resident of village Palai while that of connected petition is the resident of village Ali Khel, Thana, District Malakand. Both the petitioners, being aggrieved from the Award No.43 (Part-II) dated 17.01.2019 issued u/s 11 of the Act of 1894 of two Interchanges i.e., Pul Chowki area Alladhand and Palai "Construction of Swat Expressway/Motorway" on the ground that in the award measurement of the acquired property has wrongly been entered whereas, at the spot, excess area of the petitioners has been taken into possession by the respondents, for the purpose of award; that in connected petition, name of respondent No.10 was shown in acquaintance roll whereas, the petitioner is entitled for receipt of compensation amount; that the total property acquired from the petitioner of the instant petition and possessed at the spot is measuring 17,500 square feet whereas in the award it was shown as 12055 square feet and in the connected petition land of the petitioner was taken into possession measuring 1380 square feet whereas in award it was shown as 1010 square feet, which is against the facts. They alleged their entitlement for compensation of the property, which was actually taken into possession by the respondents, alongwith contentions under sections 18 of the Act of 1894. Both the petitioners have submitted their respective objections/reference under sections 18/30 of the Act of 1894 on 27.09.2019 & 17.09.2019, respectively, whereas award No.43 (Part-II) was announced on 07.01.2019, through Collector/Additional Deputy Commissioner, Malakand, however, their objection petitions were turned down, being time barred and it was also held that section 30 the Act of 1894 is not applicable to the objection of both the petitioners. The impugned orders bearing No.16470/LAB dated 20.08.2019 and No.19357/LAB dated 25.09.2019 have been assailed by the petitioners, through instant petitions.
3. Mr. Alam Khan Adenzai, A.A.G present before the Court in connection with some other cases accepted notice of instant petitions on behalf of the official respondents. He submitted that a specific procedure for filing of a reference/objection has been provided in the Act of 1894 and it has not been left open to the parties/owners/objectors to file their reference/objection as and when they wish, however, the objection could only be filed within the ambit of section 18 of the Act of 1894, within six weeks or within six months as provided therein whereas, both the objection petitions of the respective petitioners were barred by time and thus were rightly turned down by respondent No.4. He supported the impugned orders of the Collector/Additional Deputy Commissioner, Malakand.
4. Arguments heard and record perused.
5. Perusal of record reveals that for the purpose of construction of Swat Expressway (Passes through from the Villages Alladhand, Zalam Kot and Palai) Tehsil Batkhela, District Malakand the land of petitioners was acquired. Notification u/s 4 of the Act of 1894 was issued in respect of property, situated at Alladhand, Zalam Kot and Palai District Malakand, measuring 32-kms. The rate pertaining to different kind of land was properly scheduled in award, after assessment and measurement of the houses/structures worked out by the concerned department as reflected from the award scheduled therein. It is indisputable that the award was announced and signed on 17.01.2019. It is also undisputed that objection/reference was filed by the petitioner of instant petition on 29.07.2019 and that of connected petition on 17.09.2019. Both the objection petitions were filed u/s 18 read with section 30 of the Act of 1894. In order to determine as to whether there is any limitation for filing of reference/objection u/s 30 of the Act of 1894 provided by legislature in the Statute, we have gone through from the section 30 of the Act of 1894, which for convenience is reproduced as under: "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 tfiereof is payable, the Collector may refer such dispute to the decision of the Court."
No doubt, section 18 of the Act of 1894 provides the period of limitation for filing of reference/objection within a period of six-week u/s 18 (2)(b) and six months u/s 18 (4) of the Act of 1894 whereas, the above reproduced section has not provided any limitation for an aggrieved person for redressal of his grievance. Section 18 of the Act of 1894 pertains to the person whose grievance is only in respect of determination of the compensation as mentioned in acquaintance roll, whereas the objection of section 30 of the Act of 1894 is open to any person either who is named in the revenue papers or otherwise as owner or whose name is mentioned in qabz-ul- wasool, or in whose name the compensation has been determined during the process of assessm ent. He may be the person claiming his entitlement but not named in the revenue papers or not mentioned in the acquaintance roll for his entitlement and if any dispute arises as to apportionment of the same or any part thereof or as to the person to whom the same or any part thereof is payable, the Collector may refer such dispute for decision of the Referee Court. The duty of the Collector is to adjudge when the reference is made/submitted before him for its onward transmission to the Court, however, when it is filed u/s 18 of the Act of 1894 he has to see as to whether it is within time or not and when the matter was referred by the Collector to Referee Court, it shall be deemed that the reference was filed within time, as such, to the extent of section 18 of the Act of 1894, it is his bounden duty to determine the factor of limitation and if it is within time, then to send it to the Referee Court but when reference is u/s 30 of the Act of 1894, the Collector has got no authority either to hold it as time barred or to determine that the question of dispute pertaining to title/apportionment/distribution of compensation amount or any portion thereof on the sole analogy that this is power of the Court to which the matter is referred. Whenever any person is claiming his entitlement in any portion of, the property alleged by him to have been acquired or possessed by the acquiring agency under the shelter of award and the aggrieved person is seeking his entitlement for compensation of the property so acquired irrespective of this fact that it is properly measured and shown in the award or otherwise. The duty of Collector is only to refer it to the Court. In the instant matter, the findings of Collector that the objection petition does not cover section 30 of the Act of 1894 are beyond the scope and powers of the Collector.
6. In the case of "Dr. G.H Grant Vs. State of Bihar" (AIR 1966 SC 237), it was observed by the Hon'ble Supreme Court that: "A person who has not appeared in the acquisition proceedings before the Collector may, if he is not served with notice of the filing, may raise a dispute relating to apportionment or to a person to whom it is payable, and apply to the Court for a reference under s. 30, for determination of his right to compensation, which may have existed before the award, or which may have devolved upon him since the award. Under s. 18 an application made to the Collector has to be made within the time prescribed by sub-be of sub-section (2) of section 18 but no such period is prescribed under section 30.
In the case of "Ghulam Muhammad Vs. Government of West Pakistan" (PLD 1967 SC 191), the apex Court has held that: "Where there is a dispute as to who are the persons interested or as to the extent of their interests or as to the nature of their respective interests that would not be for the Collector to decide under section 18, but should be left to the Court to adjudicate upon under section 30."
Reliance may also be placed on the cases of "Government of West Pakistan Vs. Arbab Haji Ajmad Ali Jan and others" (PLD 1981 SC 516) and "Pir Muhammad Salim Gilani Vs. Syed Muhammad Ashraf Shah Gilani" (PLD 1963 Azad J&K 66), wherein it was held that: "When an objection is filed u/s 30 of the Act of 1894, it can be made at any time or even the collector may suo motu refer it to the Court for determination of rights of interest persons."
Likewise, this Court in the case of "Mst. Khalida Bibi Vs. Daryai Khunam and others" (1994 MLD 2239, Peshawar), in the matter of acquisition of the property and dispute pertaining to section 30 of the Act of 1894, has also held that: "When a statute confers an unqualified discretion upon some authority, this is usually interpreted as meaning that the authority may act either entirely of his own motion or upon being moved by some interested party, and his powers are regarded as limited if this is required by some necessary implication. No such implication appears to arise in the present instance. If section 30 is read in its plain sense, this simply means that the Collector must refer a question of title if required to do so by an application received within the prescribed time, but if an application is received after that time, he then has the option of referring the matter to the District Judge or refusing to do so; and if the Collector, while forwarding the reference himself, mentions that the application is received after the prescribed time, it is to be presumed that he is intentionally making a reference under section 30. As already mentioned, no specific time is provided within which a reference under section 30 should be made, nor has our attention been drawn to any authority in which it has been definitely held that such a reference cannot be made any time".
7. The petitioners have taken certain specific objections, the determination of which could only be made by the Court and Collector cannot decide it or cannot hold that who is entitled, to whom the amount is be paid, what would be the amount to be paid and how much area of the property was taken into possession. Likewise, the Collector has got no authority to make an order for determination of actual property taken into possession or the property as mentioned in the award within the parameters of section 30 for resolution of controversy of apportionment which according to the Black's law defined as "the division, partition, or distribution of a subject-matter in proportionate parts, the determination of the amount of rent to be paid when the tenancy is terminated at some period other than one of the regular intervals for the payment of rent, where several persons are interested in an estate, apportionment , as between them, is the determination of the respective amounts which they shall contribute towards the removal of the incumbrance or pro tanto division or a division of the right of common between several persons, among whom the land to which, as an entirety, it first belonged has been divided. In essence, it is admeasurement, division, allocation, allotment, disbursement, sharing, dispensation, sharing, distribution, dispensation, splitting, measuring out, meting out, parceling out. All these being the questions were requiring recording of evidence by the aggrieved party, with proper opportunity of defence to the acquiring agency or to the respondents, as the case may be. In the matter in hand, the Collector, while making a reference that the objections were not relating to section 30 of the Act of 1894, is beyond the scope, powers and authority of Collector.
8. It is by now well settled that when an authority is required to act in accordance with law, it is duty bound to act in the manner as provided therein and not otherwise. In this respect, reliance can be placed on the principle enunciated in cases titled "Qamar Javed vs. Gul Jahan" (2005 MLD 1329), "Syed Bashir Hussain vs. Abdul Waheed" (2013 MLD 1675),"SNGPL VS. OGRA" (PLD 2013 Lahore 289), "Cantonment Board Clifton vs. Sultan Ahmad Siddique" (2016 CLC 919), "Muhammad Akram Javid vs. Bashir Ahmad Soauk" (2016 CLC 1751), "Hassan Bakhsh vs. Sultan" (2016 MLD 1157). "Muhammad Hanif Abbasi v. Imran Khan Niazi" (PLD 2018 SC 189), "Shahida Bibi v. Habib Bank Limited" (PLD 2016 SC 995) and Human Rights Cases Nos.4668 of 2006 and others (PLD 2010 SC 759). The Hon'ble Supreme Court in the case of "Ajmir Shah, Ex-Sepoy vs. the Inspector General, Frontier Corps Khyber Pakhtunkhwa and another" (2020 SCMR 2129) has held that: "Where a law requires doing of something in a particular manner it has to be done in the same manner and not otherwise. Reliance in this respect is placed upon the cases of Muhammad Hanif Abbasi v. Imran Khan Niazi (PLD 2018 SC 189), Shahida Bibi v. Habib Bank Limited (PLD 2016 SC 995) and Human Rights Cases Nos.4668 of 2006 and others (PLD 2010 SC 759)."
9. Thus, for the reasons discussed above in juxtaposition with the controversy involved qua the specific provision of section 30 of the Act of 1894 and while making reliance on the principle enunciated by the apex Court in the case of Ghulam Muhammad Vs. Government of West Pakistan (supra) pertaining to interpretation of section 30 of the Act of 1894, within the parameters of interpretation of Statute, we have reached to an irresistible conclusion that the impugned orders of the Collector are unwarranted, unjustified, without authority, illegal, as such, both these petitions are allowed and the impugned orders are set aside. Resultantly, the references/ objections of the petitioners filed under the provision of the Act of 1894 shall be deemed pending before the Collector/ Deputy Commissioner, Malakand, who shall refer same to the Referee Court for its decision in accordance with law. Parties are directed to appear before the Collector/ Deputy Commissioner, Malakand on 22.11.2022.