RAJA SHAKEEL AHMED, J. The instant matter reached before this court on the basis of judgment passed by this honorable court vide judgment dated 06/04/2011 in civil 1st Appeal No. 02/2009 where in the impugned judgment/decree of the learned Referee Court/Land Acquisition Judge Skardu passed in Reference Petition under section 18 of Land Acquisition Act, has been set aside and the impugned Award No. DK-1(3)/87 dated 04/10/1987 is enhanced as prayed for in petition under section 18 of the Act with 15% compulsory Charges and 8% of compound interest till realization of the enhanced amount.
2. Facts of the case are that in the year 1987 the respondents acquired some land of petitioners along with the other inhabitants of the area mentioned in documents prepared by the revenue staff during process of award for construction of road at Muaza Kamngo Sub Division Kharmang, but the collector determined the compensation of the land at the rate of Rs 15000/per Kanal Cultivable and Rs 12000/ per Kanal for un cultivable lands which was not in accordance with the prevailing market rate. Being aggrieved by the award of the collector the affectees of the acquired land challenged the award of the Collector through reference under section 18 of the Land Acquisition Act with the contention that at the time of acquisition proceedings the value of land in the area was Rs 30000/ and 20000/ per Kanal for cultivable and uncultivable lands respectively.
Besides the un acceptable rates the owners of the land have also challenged the validity of award on the ground that mandatory notices are pre requisite to an award which have not been served upon them as such the impugned award is bad in the eye of law. The learned trial court/referee Court Skardu vide Judgement/decree dated 22/11/2008 dismissed the reference petition under section 18 of the Land Acquisition Act submitted by the then petitioners. Being aggrieved by the impugned judgment the then petitioners assailed the judgment of Referee Court before this honorable Court through CFA No.02/2009. This Court set aside the impugned judgment dated 22/11/2008 passed by the Referee/Land Acquisition Judge Skardu and the impugned Award No. DK- 1(3)/87 dated 04/10/1987 and enhanced the compensation amount as prayed for in petition under section 18 of the Act with 15% compulsory Charges and 8% of compound interest till realization of the enhanced amount.
3. Although the lands of the petitioners amongst the others had been acquired for the construction of above road and their names and quantity of lands acquired in the acquisition process are reflected in the documents prepared during proceedings for preparation of impugned award, and payments thereto but with one reason or other their navies are not included in the petition/reference under section 18 of the Act and in the Memo of appeal before the Chief Court.
4. On the basis of the Judgment/decree dated 06/04/2011 passed by this court the petitioners of the reference petition had filed execution petition before the referee court and the present respondent assailed the judgment of this court dated 06/04/2011 before the Apex Supreme Appellate Court at Skardu Registry but during the pendency of the CPLA before Apex Court the decree holders (the then petitioners) and present respondents (judgment debtors) have patched up the matter out of the court. Accordingly, the learned executing court has recorded the statement of the attorney of the decree holders and counsel of the respondents and disposed of the execution petition.
5. Despite the fact that the lands of the present petitioners was acquired for the construction of road and the amount of award of the collector was enhanced on the direction of the his court and the enhanced amount is paid to the other persons who's land was acquired for the same purpose but after enhancement of the award amount the petitioners were denied by the respondents with the plea that their names do not appear in the list of the petitioners in reference petition filed under section 18 of the Land Acquisition Act.
6. Losing hope of redress of their grievance from the respondents the present petitioners have submitted the instant writ petition before this court with the prayer that the petitioners are the owners of the acquired land for the construction of link road at Muaza Kamngo, Tehsil and District Kharmang and are entitled for the enhanced compensation amount awarded by this Court on 6/04/2011 and sought directions against the respondents to pay the petitioners their due compensation from the amount which has already been deposited by the respondents in compliance of the decree of this Honorable court passed on 06/04/2011.
7. The respondents submitted para wise comments wherein they have denied the contention of the petitioners on certain legal and factual grounds and challenged the maintainability of the present writ petition being time barred. The respondents also challenged the locus standi of the petitioners to file the instant writ petition against the answering respondents because the petitioners have already received land compensation in 1987 without protest.
8. The learned counsel for the petitioner argued that petitioners are the owners of the acquired land for the construction of link road at Muaza Kamngo, Tehsil and District Kharmang and are entitled for the enhanced compensation amount awarded by this honor able court on 6/04/2011.
The learned counsel for the petitioners further argued that in compliance of the decree of this honorable court cited above the Acquiring Department deposited the enhanced decretal amount with the Collector. The learned Collector paid the enhance compensation amount to the ones whose names appeared in the reference made under the section 18 of the Land Acquisition on Act 1894. The petitioners were denied payment on the sole plea that their names do not appear in the reference and ultimately in the award/decree of this Hon'ble Court despite the fact that there is no dispute of acquiring and taking possession of their lands for construction of road which is apparent from perusal of documents produced by the petitioners along with this writ petition as well as the documents furnished by the respondents along with their para-wise comments submitted before this Hon'ble Court. The learned counsel for the petitioners further argued that the Collector is not in consonance with the equitable justice, rule of law despite the factual position of the facts admitted by the both the parties. He further argued that the petitioners are poor souls and illiterate persons could not arrange counsel and even fail to incorporate their names in the reference submitted under section 18 of the Act. He continued his arguments contending that the constitutional rights of the petitioners in the acquired property cannot be extinguished on the basis of technicalities of procedural law. The decree passed by this Hon'ble Court pertains to the fixation of the rates of compensation for landed properties in general and therefore, it is a judgment in rem and therefore applicable to all land owners whom lands have been acquired during acquisition process. The learned counsel for the petitioners further argued that on the basis of the judgments of apex Courts of Pakistan, the petitioners are entitled to get direction against the respondent to pay the petitioners their due compensation for the lands they have been deprived of. By summing up his arguments, the learned counsel for the petitioners prayed that the writ petition may kindly be allowed with the direction to pay the compensation amount of enhanced award to the petitioners also as the award passed by this Hon'ble Court was to benefit for all the affectees of acquisition process. To substantiate his contentions, the learned counsel for the petitioners referred the case laws; PLD 2010 SC 878, 2015 CLC 97, 1998 SCMR 2197, 1999 SCMR 2009, PLD 2007 SC 620.
9. On the other hand, the learned Addl. Advocate General and Legal Advisor for the respondents 3&4 vehemently opposed the contentions of the counsel for the petitioners and contended that the instant constitutional petition is not competent in present shape. The petitioners do not have any locus standi to file the instant writ petition as the petitioners had received compensation amount in the year 1987 without any objection. They further argued that being barred by time the present petitioners could not ask for payment of an amount which is past and closed transaction. They further argued that the judgment of this Hon'ble Court has no relevancy with the claim of the petitioners because they were not a party to the said reference in which this Hon'ble Court has passed the judgment/decree dated 06.04.2011. At the end, the learned AAG and L.A for the respondents requested to dismiss the instant writ petition declaring it to be meritless and hopelessly time barred.
10. We have heard the arguments advanced by the learned counsel for the parties and perused the record of the case minutely with their able assistance.
11. The short and simple question involved in this litigation would be "whether the benefit which had accrued to the land owners who had filed reference in Referee Court and filed appeal in this Court for further enhancement of compensation vis-a-vis their acquired land could also be extended to the similarly placed land owners (the present petitioners) who had however not filed any such reference or appeal in the Chief Court"
12. Such like questions have been coming up before superior Courts of this country rather frequently and accordingly to an almost consistent view of the superior courts always been declared that such like non-appealing, affectees were also entitled to the same treatment which had been by the appellate court to the similarly placed appealing parties. For the sake of brevity reference is being made to some only of the judgments of Supreme Court of Pakistan deciding the same issue.
(i) 1999 SCMR 2009 This was a case where the Referee Court, in pursuance of a petition under section 18 of the Land Acquisition Act had enhanced the amount of compensation. The government questioned this enhancement before the High Court through appeals filed for the purpose. The High Court reduced the compensation. Some of land owners approached before the apex court in the matter. The land owners who had not filed appeals also sought the benefit arising out of the benefit of the judgment which was resisted by the concerned authorities which was finally denied upto the High Court on the matter reaching to apex Court of Pakistan it was held that "it would be unjust to deprive the appellants from receiving benefit of the judgment merely for the reason that they have not filed reference or appeal against the judgment of High Court when the same order challenged by the other land owners similarly placed had been set aside by the Court and enhanced the compensation amount. We see no reasons to deprive the appellants/non-appealed petitioners and direct the payment of compensation to the appellants/petitioners in accordance with the judgment and decree passed in favour of similar appellants."
(ii) PLD 2010 SC 878 In this landmark judgment of Supreme Court of Pakistan, it is held that, "we accept these three appeals i.e. Civil Appeals Nos.1949, 1950 and 1951 of 2002 as a result whereof we set aside the impugned judgment dated 25.01.2002 passed by the Peshawar High Court and declare that the affected non-appealing land owners including the present appellants would be entitled to the same compensation amount which was determined by the Peshawar High Court in pursuance of CFA No.70 of 1992 for the kind of land which such land owners own." It is also held in this judgment by the lordships that, "it was a legal and moral obligation cast on the authorities not to grudge payment of compensation to such like non-appealing land owners according to the rate judicially determined for the land in question. Since it has not been denied that the compensation so accessed had attained finality, therefore, the least that could be said was that the dictates of justice demand that all the similarly placed land owners be paid said compensation according to the said judicial determination irrespective of the fact whether they had or had not approached the courts of law for the purpose"
12(sic) As far as, the arguments of AAG regarding the limitation of the matter before this Court and request of dismissal of the writ petition on the ground of limitation is concerned, the issue of limitation in such like cases is also discussed in the same judgment of the august Supreme Court, wherein at page 82 of PLD 2010 SC it is held that "if the said submission of the counsel was to be accepted then the same would lead to ludicrous and absurd result. It would mean that an affected person had not filed any appeal ever at all would be entitled to relief in terms of Order XLI, Rule 33, C.P.C. but a similarly affected person who does file an appeal, though beyond time would be thrown out on account of delay in filing the same. Such an interpretation would lead to laughable results and could not be accepted. The non-appealing land owners were entitled to relief sought on the strength of the judgment passed by the High Court which was not done. It is the said illegality which deserves to be cured to do complete justice, in the matter."
13. In view of above detailed discussion, this writ petition is hereby allowed. Consequently, the respondents are directed to pay the enhanced compensation amount to the petitioners in the light of judgment dated 06.04.2011 passed by this Court in CFA No.02/2009 as prayed for in the petition under section 18 of the Act with 15% compulsory charges and 8% compound interest till realization of enhanced compensation amount. Parties are left to bear their own costs. File