MUHAMMAD IJAZ KHAN, J. Through the instant Regular First Appeal tiled under section 54 of The Land Acquisition Act, 1894 (hereinafter referred to as "The Act of 1894"), the acquiring department/ appellants have challenged the order and judgment of learned Referee Judge dated 04.04.2012 which was delivered by the learned Senior Civil Judge/A'ala Illaqa Qazi Shangla in a reference filed by the respondents/ land owners.
2. At the very outset, the learned counsel representing the appellants states that in this reference the evidence was recorded by the learned District Judge/Zila Qazi Shangla as a Referee Judge, however, vide order sheet No. 19 dated 17.11.2011 the said reference was sent to the learned Senior Civil Judge Shangla prima facie for writing of the judgment alone as by then the whole evidence was recorded by the said Court itself. He further submits that the learned District Judge/Zila Qazi Shangla was a Referee to whom the reference was sent by the Worthy Collector, therefore, he should have been rendered the judgment in this case himself but he instead sent the same to the learned Senior Civil Judge Shangla and thus he has committed a serious illegality which rendered his judgment as void in the eyes of law.
3. As against this, the learned counsel representing the landowners/objectors states that as soon as the order dated 17.11.2011 was passed by the learned District Judge/Referee Judge Shangla whereby the reference was sent to the learned Senior Civil Judge Shangla they, then and there raised an objection that the reference could not be referred, however, his application was also dismissed vide order dated 17.03.2012 and as such his stance was that this commission of an illegality could not be attributed to the landowners/objectors, rather it is the act of the learned District Judge, who was acting as a Referee Judge.
4. In view of the above a legal proposition has emerged that as to whether the Referee Judge who was acting as a Referee and to whom the reference was sent by the Worthy Collector could delegates or passed on his function/authority under the aforesaid Act of 1894 or not?
5. It may be noted that the "Court" within the meaning of The Act of 1894 has been defined in section 3 (d) which is reproduced below;- Definitions.---In this Act, unless there is something repugnant in the subject or context,- a) ........................................................................................................................................................ b) ......................................................................................................................................................... c) .......................................................................................................................................................... d) "Court" means a principal Civil Court of original jurisdiction, and includes the Court of any Additional District Judge and any Civil Judge to whom the Provincial Government may appoint, by name or by virtue of this office, to perform concurrently with any such principal Civil Court, all or any of the functions of the Court under this Act, within any specific area; provided that in the case of a Civil Judge such functions shall be exercised only upto the limits of his pecuniary jurisdiction."
The powers and functions of the Court under The Act of 1894 as against the functions and powers of the ordinary Court, came up before the Hon'ble Lahore High Court in the case of "Malik Muhammad Ishaq v. Land Acquisition Collector. Lahore and 7 others" reported as PLD 1978 Lahore 458 where it was held that when statutory rights and liabilities have been created and jurisdiction has been conferred upon a special Court for the investigation of matters which may possibly be in controversy, such jurisdiction is exclusive and cannot concurrently be exercised by the ordinary Courts, for where the legislature has created an obligation to be enforced in a specific manner as a general rule performance cannot be enforced in any other manner. Similarly, in the case of "Babulan v. The Secretary of State" reported as (4 Calcutta LJ 256 K), the Hon'ble Calcutta High Court has held that as the jurisdiction conferred is a special one created by special statute, the jurisdiction is exclusive and is not meant to be exercised concurrently by the ordinary Courts with the special Court.
In view of the above it can safely be concluded that a Court within the meaning of section 3(d) of The Act of 1894 to whom a reference has been sent by the Worthy Collector shall act as a transferee--cum-delegates and thus under the established judicial principles it cannot further delegate its function or authority and thus the impugned order and judgment of learned Senior Civil Judge Shangla who passed the impugned order/judgment in the case of the appellants is illegal and void-ab-initio. It may also be noted that the Land Acquisition Act is a special law as the same was enacted with specified object to deal with the cases of acquisition, therefore, all functionaries who are performing their functions/duties are to be regulated by the provisions of The Act of 1894. It may also be noted that a Referee Judge under the Act of 1894 to whom a reference has been sent by the Worthy Collector has not been conferred with any power of delegating or further passed on its jurisdiction or function to any other Court/person/authority, therefore, on the basis of the aforesaid principle of law the impugned order of learned Referee Judge/District Judge Shangla dated 17.11.2011 and that of learned Senior Civil Judge Shangla dated 04.04.2012 are illegal and void-ab-initio as well as coram-non-judice.
6. It is relevant to mention here that in the recent past this Court in the case of "Zia Ullah and 6 others v. Govt: of KPK and 6 others" reported as 2022 MLD 1705 has dealt with a situation akin to the present case with the only difference that in the Supra case, the Collector under The Act of 1894 has passed on the reference to the Additional Deputy Commissioner and as such he had delegated its function/authority to the said Additional Deputy Commissioner and thus this Court while dilating with the aforesaid legal proposition has observed and declared in Paras 8, 9 and 10, which are reproduced below:-
8. Another question which emerges from the facts of this case is that as to whether the Collector can delegate its authority to any other officer as was done by him by sending the reference of the petitioners to respondent No. 5 and who further passed on the same to respondent No. 6. A careful combined perusal of Section 3 (c) and Section 18 (1) of The Act of 1894 clearly manifest the true intent of the legislature. The authority of entertaining a reference filed under section 18 of The Act of 1894 has clearly been vested in the "Collector" alone and under section 3 (c), a "Collector" would mean the Collector of the District or any officer especially appointed either by the Board of Revenue or the Commissioner to perform the functions of a "Collector" but in no manner it confers any authority on the Collector to delegate its function to any other person/officer including respondent No. 5 or respondent No. 6 and as such the very entrustment of the reference by the respondent No. 3/Collector to respondent No. 5/Additional Deputy Commissioner, Dir Lower was beyond his authority and thus any such proceedings conducted and order passed by such delegatee would be of no legal effect and would be nothing but a futile exercise and wastage of public time. It is settled since long that a delegator could delegate its authority to the delegatee provided there is a provision of statutory delegation and as such in absence of such statutory backing, the authority would not be competent to delegate its function. In the case of Muhammad Ashraf Tiwana and others v. Pakistan and others reported as 2013 SCMR 1159, the Hon'ble Apex Court has held that it is well settled in our jurisprudence that a discretionary authorization conferred on a person or body by statute, cannot be delegated. It has repeatedly been held by our Constitutional Courts that the exercise of such discretionary function is in the nature of entrustment and the statutory functionary who is entrusted with exercising his judgment, acts as a fiduciary. Apart from the fact that such fiduciary is obliged to exercise discretionary decision-making functions himself, it is also a necessary concomitant of such fiduciary performance of duties, that the same are exercised in good faith for furtherance of the objectives of the statute. It is further held in para-49 of the said judgment that here it is helpful to reemphasize the general principle of our law that all statutory authority is fiduciary in nature; it is vested in the functionary or both specified in the statute and is therefore, as a rule non- delegable. The maxim delegatus not poles' delegare sums it up: the delegatee cannot further sub-delegate. A leading authority on administrative law, states that: "It is a well-known principle of law that when a power has been confided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another." Justice (R.) Fazal Karim, a former Judge of this Court and a leading legal scholar and academic summarizes the position thus: "In deciding whether a person has the implied power to delegate, one has to consider the nature of duty and the character of the delegating person... [T]here are powers which, though administrative in nature, cannot normally be delegated. Similarly, in the case of Haji Ghulam Zamin and another v. A. B. Khondkar and others reported as PLD 1965 Dacca 156, it was held that no power inherent in executive except that vested in it by law. It may also be noted that where legislatures have expressly provided a provision of delegation of power in an authority, then such authority can competently delegate its function to the delegatee and such provision in a statute is called "statutory delegation". As an example, Section 18 (g) of The National Accountability Ordinance, 1999 could be best quoted, under which the Chairman NAB has been entrusted with power to authorize any officer, who shall as delegatee of the Chairman could appraise the material placed before him during the inquiry or investigation and if he decides to proceed further, he shall refer the matter to a Court. Under The Capital Development Authority Ordinance, 1960, collection of fees is statutory function of the authority itself. A contract was given by the authority (CDA) to a Contractor to collect the fees on behalf of CDA.
The issue when landed before the Islamabad High Court in a case titled Shell Pakistan Limited (PLD 2015 Islamabad 36), where it was held that the Capital Development Authority has trot delegated its statutory functions to the Contractor, the Contractor has merely assigned the duty of collecting the fees on behalf of the authority without delegating any discretionary powers like taking any coercive measures on his own against the defaulting licensees and it was held that such assignment did not run counter to the principle of delegatus non potest delegare (one to whom power is delegated cannot himself further delegate that power).
9. To sum-up, it is concluded that where a statute has authorized an authority to perform a function himself without any power of delegation of its function, then such authority has to perform the function as entrustee and could not delegate to any other person, however, when such power of delegation has been bestowed upon it, then such authority could delegate its function. It is worth mentioning that under The Land Acquisition Act, 1894, no such power of delegation has been conferred upon the Collector to delegate its function to any other person, therefore, the entrustment of the reference of the petitioners by the Collector, Dir Lower to Additional Deputy Commissioner, Dir Lower is held to be beyond his power.
10. Somewhat identical issue as the case of the present petitioners came in the case of Federation of Pakistan through Ministry of Defence and 2 others v. Muhammad Khan and another reported as PLD 1991 Supreme Court (AJ&K) 33, where the proceedings initiated by the Revenue Assistant as Acquisition Collector were declared to be coram non judice on the same analogy as in the present case. Similarly, in the case of Mayapati and another v. The State of Haryana and others reported as AIR 1973 Punjab and Haryana 356, the Shri Jagbir Singh being a General Assistant had acted as a Deputy Commissioner in a land acquisition process and as such the same was found against the spirit of the law.
In view of the above discussion and exposition of law a Court functioning under The Act of 1894 is acting as a Referee/transferee Judge and thus it cannot passed on or delegates its function and jurisdiction to any other person, therefore, the impugned judgment/order rendered by the learned Senior Civil Judge/A'ala Illaqa Qazi Shangla as a delegatee of learned District Judge/ Zila Qazi Shangla is coram-non-judice and thus the same is liable to be set aside.
7. Accordingly this Regular First Appeal is allowed the impugned order/judgment passed by learned Senior Civil judge/A'ala Illaqa Qazi Shangla dated 04.04.2012 is set aside and this case is remanded back to the learned District Judge/Zila Qazi Shangla who shall itself re-write the judgment in the instant reference after providing of an opportunity of hearing to the parties and on the basis of evidence already recorded by both the parties.
8. Before parting with this judgment it is observed that since on the original side it is the case of 2007, therefore, the learned District judge Shangla is expected to render its judgment within a period of 30 days from the receipt of judgment of this Court. It may also be clarified that if anybody who is aggrieved of the aforesaid judgment of Referee Judge and who may have preferred an appeal before this Court, then the office of this Court shall fix the case within a period of four months from the date of filing an appeal as both the parties have suffered a lot due to the pendency of this case for more than 15 years. Order accordingly.