UDGMENT MUHAMMAD FAHEEM WALI, J. Petitioners through this writ of certiorari have called in question the vires of Order dated 13.07.2018 of the Land Acquisition Collector, D.I. Khan, whereby their reference under Section 18 of the Land Acquisition Act, 1894, was dismissed being filed beyond six months period from the date of Award.
2. Facts of the case, in brief are that, the respondents acquired the land of petitioners through Award No.11 dated 19.04.2017. Petitioners for the purpose of re-determination of compensation amount, filed a reference under Section 18 of the Land Acquisition Act, 1894, on 04.06.2018. The Land Acquisition Collector, D.I.Khan, rejected the reference vide order dated 13.07.2018 being time-barred.
Hence, petitioners have filed this petition seeking issuance of direction to the Land Acquisition Collector, D.I.Khan, to refer their petition to the Referee Court.
3. Arguments heard and record perused.
4. The record reveals that the Award in question was announced on 19.04.2017 and the Reference under section 18 of the Land Acquisition Act, 1894 (hereinafter referred as the Act) was filed on 04.06.2018 before the Land Acquisition Collector for its transmission to the Referee Court for re- determination of the compensation amount: However, the Land Acquisition Collector rejected the reference petition on the same day i.e. 13.07.2018 on the ground that it was filed beyond six months of the announcement of the Award. Now the moot question before this Court is to see, "Whether the period of six months under clause (b) of the proviso to section 18 of the Act should be reckoned from the date of knowledge of the award of the Collector or from the date of award itself? "
5. A threadbare perusal of the Award in question reveals that the Land Acquisition Collector, after announcing the award on 19.04.2017, communicated its copies to the authorities of CPEC Corridor and National Highway Authority; besides a copy was communicated to Tehsildar Paharpur for preparation of acquittance roll and attestation of mutation. Neither a copy of the Award was communicated to the affected land owners nor there is mention of sending notices under section 12(2) of the Act, 1894, to them. Under Section 18 of the Act, 1894, 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 person to whom it is payable, or the apportionment of the compensation among the persons interested. However, such reference can be filed within six weeks from the date of Collector's award, if the interested person was present or represented before the Collector at the time of making the award; and in other cases, interested person can file a reference 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.' Section 18 of the Khyber Pakhtunkhwa Land Acquisition Act, 1894, is reproduced here under:
18. Reference to the 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 person to whom it is payable, or the apportionment of the 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.
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(4) Notwithstanding anything to the contrary contained in section 21, the Federal Government, the Provincial Government, a local authority or a Company, as the case may be, for or on behalf of whom the land is being acquired, may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award: Provided that the Court shall not entertain the reference unless in its opinion there is a Prima facie case for inquiry and determination of the objection against the award.
6. Clause (b) of the proviso to subsection (2) of section 18 requires a person interested who has not accepted the award, to make an application to the Collector requiring him to refer the matter for determination of the court, within six weeks of the receipt of the notice from the Collector under section 12(2) or within six months from the date of the Collector's award whichever period first expires, if he or his representative was not present before the Collector at the time of making of the award.
7. The reason for providing six months from the date of the award for making an application seeking reference, where the applicant did not receive a notice under section 12(2) of the Act, while providing only six weeks from the date of receipt of notice under section 12(2) of the Act for making an application for reference where the applicant has received a notice under section 12(2) of the Act is obvious. When a notice under section 12(2) of the Act is received, the land owner or person interested is made aware of all relevant particulars of the award which enables him to decide whether he should seek reference or not. On the other hand, if he only comes to know that an award has been made, he would require further time to make enquiries or secure copies so that he can ascertain the relevant particulars of the award.
8. The term "date of the Collector's award" occurring in clause (b) of the proviso, has been interpreted in the case of Raja Harish Chandra Raj Singh v. Dy. Land Acquisition Officer (AIR 1961 SC 1500). According to the said verdict of the Supreme Court of India if the award is pronounced in the presence of the party whose rights are affected by it, it can be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced, the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly, if without notice of the date of its pronouncement an award is pronounced and a party is not present, the award can be said to be made when it is communicated to the party later. The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression 'the date of the award' used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words 'from the date of the Collector's award' used in the proviso to Section 18 in a literal or mechanical way. The relevant excerpt from Raja Harish Chandra case is reproduced hereunder: "--- Therefore, if the award made by the Collector is in law no more than an offer made on behalf of the Government to the owner of the property then the making of the award as properly understood must involve the communication of the offer to the party concerned. That is the normal requirement under the contract law and its applicability to cases of award made under the Act cannot be reasonably excluded. Thus considered the date of the award cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office; it must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position then the literal and mechanical construction of the words 'the date of the award occurring in the relevant section would not be appropriate.
There is yet another point which leads to the same conclusion. If the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it, it can be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement.
Similarly, if without notice of the date of its pronouncement an award is pronounced and a party is not present, the award can be said to be matte when it is communicated to the party later.
The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression 'the date of the award' used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words 'from the date of the Collector's award' used in the proviso to Section 18 in a literal or mechanical way."
9. In the case of "State of Punjab v. Mst. Qaisar Jehan Begum and another" (AIR 1963 SC 1604) the view rendered in the supra case of Raja Harish Chandra Raj Singh was further elaborated in the following words: "It seems clear to us that the ratio of the decision in Harish Chandra's case (supra) is that the party affected by the award must know it, actually or constructively, and the period of six months will run from the date of that knowledge. Now, knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively.
If the award is communicated to a party under S. 12(2) of the Act, the party must be obviously fixed with knowledge of the contents of the award whether he reads it or not. Similarly, when a party is present in court either personally or through his representative when the award is made by the Collector, it must be presumed that he knows the contents of the award. Having regard to the scheme of the Act we think that knowledge of the award must mean knowledge of the essential contents of the award."
10. As far the jurisdiction of the Collector Land Acquisition to reject the award is concerned, suffice it to say that Collector is required under Section 18 to make a reference on the fulfilment of certain conditions, namely, (i) written application by interested person who has not accepted the award;
(ii) nature of the objections taken for not accepting the award; and (iii) time within which the application shall be made. The Collector acts as a statutory authority. The power to make a reference under Section 18 is circumscribed by the conditions laid down therein and one of such condition is a condition regarding limitation to be found in the proviso. In order to determine the limitation on his own power, the Collector will have to decide whether the reference presented by the claimant is or is not within time and specify the conditions laid down under Section 18. The powers to allow, dismiss or reject the reference is only vested in the Referee Court, and Collector, at the most, can transmit the reference to Referee Court, if the same is found within time, otherwise, to pass an order recording therein reasons for not making the reference to Referee Court. The Collector, under the law, cannot reject a reference and therefore, the impugned order whereby the Collect rejected the reference being time barred is nullity and unwananted under the provisions of Land Acquisition Act, 1894.
11. In view of the above, we can interpret the proviso to section 18 of the Act in the following manner: a. If the award is announced in the presence of the person interested (or his authorised representative), he has to make the application within six weeks from the date of the Collector's award itself, h. If the award is not made in the presence of the person interested (or his authorised representative) but served with notice of pronouncement of award under Section 12(2) of the Act 1894 he has to make the application seeking reference within six weeks of the receipt of the said notice. c. If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award. d. If a person interested was not present at the time of announcement of Award but he received a notice under section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under section 12(2) of the Act was the date of knowledge of the contents of the award rather he has to file reference within six weeks after the receipt of notice under Section 12(2) of the Act 1894.
12. Here it would be pertinent to clarify that the presence of a person interested before the, collector within the contemplation of Section 5-A, 9, or 10 of the Act cannot be assumed as a notice under Section 12(2) of the Act; as all the proceedings under Sections 5-A, 9, or 10 of the Act preceded announcement of the Award, whereas, law requires issuance of notice under Section 12(2) of the Act after the announcement of Award.
13. As discussed in the preceding paras, neither the copy of award was forwarded to the affected land owners nor the factum of giving notice under section 12(2) of the Act to them has been mentioned anywhere in the award. As discussed above, presence of any of the petitioners in pursuance to notices under Section 9 or 10 of the Act, cannot be taken as their presence in fulfilment of notice of Section 12(2) of the Act. Thus, it cannot be said that petitioners were having the knowledge of award and as such, limitation starts from the date of knowledge and while rendering this view we are fortified by the dictum laid down by the Hon'ble Apex Court in "Allandino v. Faqir Muhammad" (PLD 1969 SC 582) wherein it was held that in a case where a party is kept in dark about the fate of his case it is wrong to say that for a remedial action against him, as provided by law, time would start to run against him from the date of the order and not from the date when he comes to know about it.
14. Further guidance is also derived from the case of "Muhammad Jan and 4 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 7 others" (1996 CLC 1967) wherein it was held: "Service of notice on affected persons was legal requirement in terms of S. 12, Land Acquisition Act, 1894---No adverse action can be taken against any person by keeping him in dark--- Where petitioners were kept in dark about proceeding or order of award, limitation was to run from date of knowledge---Where application under S. 18, Land Acquisition Act, 1894 was moved within few days from date of knowledge, same was in no way barred by time---Collector acted illegally by rejecting application for reference to Court and his order was declared to be without lawful authority and of no legal effect--Order of High Court was set aside and Collector was directed to refer matter for determination of Court in accordance with law."
15. We are clear in our mind that in case of non-compliance of the mandatory provisions of Section 12(2) of the Act, 1894, the limitation will start from the date of knowledge of the Award and not from the date of passing of award. In this case, record transpired that petitioner were not provided copies of the Award and they finally applied for the same through filing an application dated 19.04.2018 under the provisions of Right to Information Act, 2013, and thereafter petitioners got acquainted with the Award in question, and thus they presented reference under Section 18 of the Land Acquisition Act, 1894, on 04.06.2018 i.e. well within a period of six months from the date of knowledge of the contents of award.
16. In view of the above, we while allowing this writ petition set aside the Order dated 13.07.2018 of the Collector Land Acquisition, and remand the case to Collector with the direction to transmit the reference to the Referee Court, without any delay, not later than one month from the date of receiving copy of this judgment. Cost shall follow the events.