1. ' ZAFEAR HUSSAIN MIRZA, J.-Civil Appeals Nos. 21-P and 22-P of 1978 are being disposed of by this judgment as they arise out of the same Division Bench judgment as they arise out of the Peshawar High Court, dated 2-7-1978.
2. ' The Manager, G. T. S., Peshawar, required land bearing Nos. 672-Min/ 61F/127/673/227/1, 617/127/I28/129/120-Min, 665/668/116/858/669/118, measuring 34 kanals 10 marlas in Mahal Tukra No. 1, Peshawar City near Hashtnagri, for construction of a new G. T. S. Bus Stand and consequently on his request the Collector of the District commenced proceedings for the acquisition of the land required for the said public purpose. In pursuance of this notification under sections 4 and 6 were issued, vide Gazette Notification No, 3394, dated 19-12-1954 and No, 4100, dated 27-2-1954, respectively. After notice under section 9 of Land Acquisition Act was served the land was handed over to the Secretary, G. T. S., except an area of 5 marlas which were in occupation of some poor people which were accordingly abandoned, so that the area finally brought under the acquisition was 34 kanals and 5 marlas. Out of this land Khasra Nos. 673/618/127 and 673/618/127-Min, measuring 7 kanals 5 marlas were entered as `ghair mumkin godowns' in the revenue record in the names of Babu Munir and Babu Ghulam Siddiq as full owners in Khata No. 1/1/92/2 (respondents 1 to 5 are the legal heirs of Babu Munir and Babu Ghulam Siddiq is respondent No, 6 herein). The remaining land bearing khasra Nos. 617/127/128/129 and 131, 135, 136 and 491/128/1 was entered in the name of Lala Ram Chand etc. As owners while Babu Munir and Babu Ghulam Siddiq were entered as `hair dakhilkar bila legan.
3. ' In order to appreciate the real questions in controversy in these appeals it would be necessary to give the narration of facts which formed the background for the aforesaid entry in the revenue record in respect of the land owned by the Hindu owners to be `ghair dakhilkar bila legan' in the names of Babu Munir and Ghulam Siddiq. On 29-10-1946, Babu Munir and Ghulam Siddiq filed a suit against Lala Ram Chand Seth, Rai Sahib and Lal Dwar Kanash Seth in the Court of Senior Sub- Judge, Peshawar, for specific performance of an agreement for sale of land situated in Chah Chari, Peshawar, described with reference to its boundaries. The case of the said plaintiffs was that the defendants in the suit had entered into a contract for the sale of land on 2-11-1943 for a total consideration of Rs, 1,50,000 out of which an amount of Rs, 5,000 was paid in advance by cheque.
4. The Hindu vendors contested the suit and filed their written statement. However, after some evidence had been recorded on the issues framed by the Court, the defendants migrated from Pakistan and the suit was proceeded with ex parte, resulting eventually in a decree in favour of the said plaintiffs on 17-10-1947. Thereafter, on 16-12-1947, the decree-holders filed an execution application in pursuance whereof the Executing Court by order, dated 8-3-1948 directed the decree-holders to deposit the unpaid balance of the sale price and although they failed to do so, the Court, issued a warrant for the possession of the property. It appears, the decree-holders were actually put into possession of some of the property. It seems that in. The course of the execution proceedings the Court was informed that the original Hindu owners had become evacuees and consequently by order, dated 4-7-1949, notice of the execution application was given to the Additional ,Custodian, N.-W. F. P., Peshawar, in order to determine the question of the competency of the execution proceedings. The Additional Custodian, Evacuee Property, N.-W. F. P. Appeared in response to the notice and raised objection challenging the jurisdiction of the Court to entertain the proceedings on the ground that the property had become evacuee property and was, therefore, exempted from the process of the Court under section 12 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. It was further urged that section 34 of the said Ordinance was also a bar on the jurisdiction of the Court to adjudicate upon any question with regard to the status of the property. The learned Senior Sub-Judge, Peshawar, by his order dated 28-2-1951 dismissed the execution application. The decree-holders successfully challenged in appeal the aforesaid order before the Judicial Commissioner, N.-W. F. P., Peshawar, who by his order dated 10- 1-1952 set aside the order passed by the Executing Court and remanded the case to the Court with the direction to proceed with the matter in accordance with the provisions of section 34(2) of Ordinance XV of 1949.- On remand, in pursuance of the directions of the Appellate Court, a reference was made to the Custodian with regard to the status of the property in dispute and in reply the Deputy Custodian, Evacuee Property, Peshawar, vide his order, dated 26-3-1955 returned the reference with the finding that the property was evacuee property. As a result of this the Executing Court dismissed the application for execution by its order, dated 3-6-1955. The decree- holders once again took the matter in appeal before the Judicial Commissioner impleading the Hindu owners as evacuees through the Assistant Custodian, Evacuee Property, Peshawar.
5. ' It is important to note at this stage that by this time the property in respect of which the decree was under execution had been acquired by the Government for construction of the G. T. S. Bus Stand and constructions also put up on the land so acquired. The Land Acquisition Collector had also given his award on 14-11-1955, making a reference to the pending litigation regarding the title to this portion of the land and directing that the compensation amount for the disputed land be kept in deposit with the Deputy Commissioner. Reverting to the appeal filed before the Judicial Commissioner, it may be pointed out that the Custodian was duly represented in the appeal and his counsel was heard by the Court and the appeal was decided on 17-12-1962, holding that section 34 of Ordinance XV of 1949 was not applicable and that the Civil Court had jurisdiction to pass a decree for specific performance, However, the learned Judicial Commissioner formed the opinion that the question whether the approval of the Custodian was required or not for the contract of sale under section 12(3)(a) of Ordinance XV of 1949, was a substantial question which ought to have been examined by the Executing Court and, therefore, while accepting the appeal, the learned Judges remanded the case to the Executing Court for a fresh decision. It was clarified in the judgment that the Custodian Department will be permitted to raise any objections that they wish to take except that the Executing Court had no jurisdiction under section 34 of Ordinance XV of 1949 of the Administration of Evacuee Property Act. On remand, the matter was taken up by the learned Senior Civil Judge, Peshawar, but in spite of notice no one appeared one behalf of the Custodian before him. The proceedings were, therefore, decided ex parte and it is ordered by the learned Judge, vide his order, dated 20-3-1965, that out of the amount of compensation lying with the Deputy Commissioner, Rs, 176, 425/8/0 shall be paid to the decree-holders after deducting the amount of Rs, 1,45,000, which the decree-holders had to pay to the evacuee owners.
6. ' As regards the land acquisition proceedings, it has already been stated that the Land Acquisition Collector passed an award on 14-11-1955, whereby he fixed the compensation for 7 kanals of land standing exclusively in the names of Babu Munir and Ghulam Siddiq at the rate of Rs, 3 per square foot and for the remaining 27 kanals 5 marias at the rate of Rs 1.25 per square foot. Being dissatisfied with the award, Ghulam Siddiq and successors-ininterest of Babu Munir filed an application for reference to the Court under section 18 of the Land Acquisition Act claiming compensation at the rate of Rs, 7 to Rs, 10 per square foot for the entire land. In pursuance of this application reference was made to the Court by the Land Acquisition Collector which was heard by the Senior Civil Judge, Peshawar, who, after recording evidence of the parties gave his award, dated 30-6-1975 holding that the persons interested were entitled to compensation for the entire land at Rs, 7 per square foot and in addition to an amount of Rs, 25,906 for the superstructure. They were also granted 15 per cent. Compulsory acquisition charges on the entire computation amount, in addition to interest at 6 per cent, per annum from 6-9-1954 to 15-3-1969 and after 15-3.1969, at the rate of Rs, 8 per cent per annum till the payment of the entire compensation.
7. ' The erstwhile Government of West Pakistan then preferred a Regular First Appeal against the award passed by the learned Civil Judge and the respondents (in Civil Appeal No, 21-P of 1978 herein) filed cross-objections, claiming increase in the rate of compensation at Rs, 10 per square foot and compound interest at Rs, 8 per cent. Per annum from 6-9-1954, i,e, the date of taking over the possession of the land. By the impugned judgment in these appeals, a Division Bench of the Peshawar High Court partly allowed the appeal filed by the Government and dismissed the cross- objections. It was held by the High Court that respondents (in Civil Appeal No, 21-P of 1978) are not entitled to any compensation for an area of 4 kanas which was declared to be the property of the Hindu evacuee owners exclusively. Both parties being aggrieved have filed these two appeals as of right. Civil Appeal No. 1-P of 1978 ' In support of this appeal it has been urged on behalf of the Government of West Pakistan (now succeeded by the Government of N.-W. F. P.) that the respondents had no right to ask the Collector to make the reference under section 18 of the Land Acquisition Act to. The Court, so far as the disputed land originally owned by Hindu owners is concerned, inasmuch as they had no right or interest in that land since the decree obtained by them was illegal and could not be given effect to.
8. It was further argued that in any case the Court had no jurisdiction to entertain the reference and determine the question of compensation, as the application under section,18 was barred by limitation and the Collector ought not to have made the reference beyond the time prescribed in section 18(2) of the Land Acquisition Act.
9. ' It has been argued by the learned counsel on the first point that the decree obtained by the respondents for specific performance of the contract for sale against the Hindu owners had not yet been executed by the Cohort, with the result that the title to the land had not yet passed to the respondents, before which the land was acquired at a time when it was vesting in the Custodian by virtue of the migration of the Hindu owners to India.
10. ' It may at once be stated that in so far as this contention raises a question as to the right and entitlement of the respondents to receive the compensation for the disputed portion of land, the appellants have no right to raise any such question at this stage. The operative part of the award reads as. Follows:- "1, therefore, pass the award that G. T. S. Through the Manager G. T. S. Should pay Rs, 3,63,312-8-0- Rs, Three lacs sixty-three thousands and three hundred and Twelve annas eight as under Rs, 1,14,240 on account of 15 % Extra on account of compulsory acquisition and Rs, 10,510 on account of 6% interest on the above amount for a period of 1 year and 4 months i. e. In all Rs, 1,41,886. Rs, One lac forty one thousands and eight hundred and eighty-six to Babu Munir deceased through his father Babu Nazir and Babu Ghulam Sadiq in equal shares. As the declaratory suit between the Deputy CUN today and Amir Nazir for the rest of the area is sub judice in the High court the remaining amount of Rs, 2,21,426-8-0 Two lacs twenty-one thousand for hundred and twenty-six annas might be kept in deposit with the Deput Commissioner. The Land Revenue if any shall have to be paid by the Manager 0. T. S. From 6-9-1954, the date of taking over possession. "apportionment of compensation is to be 'disposed of in the manner provided The position under the Land Acquisition Act is that the question of the by section 30, which reads 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 thereof is payable, the Collector may refer such dispute to the decision of the Court."
11. ' Apparently, the Collector was informed that the question of the execution of the decree for specific performance of contract for sale of this land, was pending decision in the High Court, upon which entitlement to receive the compensation was ultimately dependent, and this appears to be the reason why the Collector directed that this portion of compensation may be kept in deposit with the Deputy Commissioner, so that it may be paid to the party found entitled thereto according to the decision in those proceedings.
12. ' None of the parties seems to have been dissatisfied with this direction in the award. Section 31(2) of the Land Acquisition Act also inter alia provides that in the case of any dispute as to the title to receive the compensation, the Collector shall deposit the amount of compensation in the Court to which a reference under section 18 would he submitted and the third proviso to this subsection lays down as under :- "Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto."
13. ' The person lawfully entitled to the compensation amount can always, therefore, recover the amount from' the person who receives the same in the land acquisition proceedings. It is important to note that the reference contemplated under section 30 of the Land Acquisition Act is to be made by the Collector suo motu and as already pointed out he is under no obligation to make the reference to the Court for determination of the question of title to receive compensation. He can instead, follow the procedure provided in section 31(2) and deposit the amount in Court, leaving the parties to pursue their remedy for adjudication of this question. The Land Acquisition Act provides a special remedy in this regard under section 18 if any person is dissatisfied with the award and he may require the Collector to refer the matter for determination of the Court, if it relates to the measurement of the land the amount of compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested. It is now well settled that the referee Court which receives the reference under section 18 cannot go behind the reference and would have jurisdiction only to determine the questions specifically referred to it. In Government of West Pakistan v. Ahmed All Jan and others while interpreting section 18 and section 30 of the Land Acquisition Act, it was observed :- "Clearly, therefore, the extent of this jurisdiction is not the same as one conferred on a Court of general jurisdiction while hearing a suit under' section 9, C. P. C. It is only when a reference is made under section 18 that the designated Court is empowered to act and not otherwise ; and while exercising its jurisdiction, it cannot go behind the reference and hold that it was illegally made for the reason that the Collector had no power to do so as the application for making the reference was made beyond time."
14. ' It follows, therefore, that if the question of apportionment or right of a party to receive compensation is not made the subject-matter of reference and other questions are referred for determination like the quantum of compensation, then the Court will have no jurisdiction to permit such questions uncover ed by the reference to be raised and decide them. Having regard to this legal position and the admitted fact that the reference to the Court was made at the instance of the respondents who only objected as to the quantum of compensation, clearly the question of apportionment of the compensation or B the right of the respondents to receive it was not before the Court. No application was made by or on behalf of the Custodian under section 18 requesting for reference of the question of apportionment of compensation to the Court. The first contention is, therefore, not entertainable in these proceedings.
15. ' Be that as it may, from the background of the litigation between the parties as stated in the earlier part of this judgment, the Custodian of Evacuee Property was very much a party in the civil proceedings in which final orders were passed holding that the respondents were entitled to receive compensation for the lands owned by the Hindu owners on the basis of the decree for specific performance. Against the orders passed by the Civil Court, dated 20-3-1965, no further appeal or any other remedy was sought by the Custodian and, therefore, that order has attained finality. It does not now lie even in the mouth of the Custodian to challenge that order which decided the question finally between the parties as to the entitlement to receive compensation for the acquired land which was the subject-matter of the decreed under execution. It was conceded at the bar by the learned counsel for the appellants that the Custodian had received an amount of Rs, 1,45,000 as directed by the said order. There is no dispute that a decree was obtained by the respondents wherein they were entitled through execution to obtain title to the land after proper proceedings in execution but if the land was acquired in the meantime the decree obviously could not be executed. As held in Joydeb Agarwala v. Baitulmal Karkhana Ltd. the contract of sale of land does not get frustrated by acquisition proceedings if such proceedings 'D intervene to prevent the contract from being specifically performed and the vendee would in such a case be entitled to receive the compensation amount. Even otherwise, the question as to who would be entitled to the compensation amount was left by the award, on its face, to be determined by the Civil Court where these proceedings were pending.
16. ' Lastly, in so far as the first contention is concerned, there is another aspect of the case which has been ignored while pressing this contention. The present appeal (Civil Appeal No, 21-P of 1978) has been filed, as conceded, on behalf of the Government, for whose benefit the land was acquired and not on behalf of the Custodian. In regard to questions contemplate E in section 30, namely, apportionment of the compensation or persons to whom the same is payable, the Government is never a party interested, as such disputes arise between the parties whose land has been subjected to acquisition or expropriated under the Land Acquisition Act. Reference may be' made1 2 to Ghulam Muhammad v. Government of West Pakistan . The appellant Government, therefore, has no locus stand to agitate questions relating to apportionment or title to receive compensation in regard to any portion of the acquired land. This disposes of the first contention raised on behalf of the Government.
17. ' So far as the second contention is concerned, there is no difficulty in repelling the same as, while disposing of a similar point, this Court I PLC 1981 SC 516 held that the Court cannot go into the question whether the application under section 18 was barred by limitation. The relevant passage from the judgment has already been quoted above. In an case the finding of the High Court after reference to the Collector's file under section 18 was that the application was made within proper time and nothing was shown from the record that this conclusion of the High Court was in any manner unwarranted.
18. ' No other question was raised in support of Civil Appeal No, 21-P of 1978 and for all the reasons mentioned above, therefore, there is no force in that appeal, which is accordingly dismissed with no order as to costs. Civil Appeal No, 22-P of 1978 ' In this appeal the grievance of the appellants is as under :-
(1) That compensation should have been awarded at the rate of Rs, 10 per square foot.
(2) That the High Court has erred in holding that the appellants are not entitled to compensation in respect of 4 kanals and 4 marlas of the acquired land on the ground that it exclusively belonged to evacuee owners.
(3) That the rate of interest had been wrongly fixed at 6% although in his award the Land Acquisition Judge had awarded interest at 6% from 6-9-1954 to 15-3-1969 and after 15-3.1969 at 8% per annum till the payment of the entire compensation amount
(4) That compound interest at 8 % per annum from the date of taking over of possession of the acquired land be granted.
19. ' After hearing the learned counsel for the parties we are not satisfied that the appellants in this appeal are entitled to higher rate of compensation which in or opinion has been properly assessed by the Land Acquisition Judge in his award as upheld by the High Court ' As far as the question of 4 kanals and 4 marlas is concerned, it has already been pointed out that in the Collector's award the land was divided into two categories, one relating to 7 kanals which was originaly owned by the respondents and the other comprising 27 kanals 5 marlas which was owned by the Hindus but was in the possession of the respondents under the terms of the decree for specific. Performance. The learned Civil Judge who decided the reference in the first instance also proceeded on this basis and there was no question of any area to be treated exclusively as evacuee property owned by the Hindu owners. There was no justification, therefore, for the High Court to deprive the appellants in this appeal of the right to receive compensation for the entire remaining area In any case as discussed above the Government had no locus standl to agitate the question of the right to the receipt of compensation or any part thereof as the Custodian had not raised any such dispute before the Collector or had it referred under section 18 of the Land Acquisition Act ' to the Court. We are, therefore, of the opinion that the appellants in this appeal are entitled to receive compensation for the entire remaining area comprising 27 kanals 5 marlas in addition to their own land forming part of the acquired land.
20. ' As regards the remaining grounds relating to payment of interest, the position is that under section 28 of the Land Acquisition Act as it originally stood the Court, in case higher compensation is granted, may directed that the Collector shall pay interest on such excess at the rate of 6% per annum from the date on which he took possession of the land to the date of payment of such excess in to Court. On 15-3-1969, by virtue of the Land Acquisition (West Pakistan Amendment) Act, 1969, the rate of interest has been substituted by compound interest on such excess at the rate of 8 Clearly, therefore, the appellants were entitled to compound interest at 8% per annum on the3 excess amount of compensation awarded to them over and above the rate determined by the Collector, from the date on which possession of the land was taken up to the date of payment of such excess.
21. ' In the result, Civil Appeal No, 22-P of 1978 is allowed to the extent stated above. In the circumstances of the case, the parties are left to bear their own costs. PLD 1981 S 516 PLD 1965 SC 37 PLD 1967 SC 191