1. This is a first appeal by Mst. Bibi Rehmania and 14 others from the judgment dated 12-7-62 whereby Amirzada Khan, Additional District Judge, Peshawar held the reference application to his Court, under section 18 of the Land Acquisition Act (hereinafter to be referred to as the Act), as not valid or legal because it is time-barred and hence dismissed.
2. The facts of the case are as under:-- An area of 110 acres and 2 kanals in village Palosi Talarzai, Tehkal Bala No, 1, and Sufaid Dheri, has been acquired by the Award of Acquisition Collector, Peshawar, dated 10-9-1956. Before the Award, Notifications under sections 4 and 6 of the Act were duly issued. Possession of the land was taken over on 14-3-1956 under section 17 of the Act after giving notices to the owners thereof under section 9 of the Act. Mst. Bibi Rehmania and others alleged that they had submitted an application under section 18 of the Act to the Acquisition Collector on 5-3-1957. This petition was, however, not forwarded to the Court of District Judge, Peshawar. It appears that the petitioners submitted an application dated 16-6-1961 to the Collector, referring to their alleged application dated 5-3-1957.
3. The statement of P. W. 16 Sher Ahmad Khan, Acquisition Qanungo, Peshawar and copy of the report (Exh. P. W. 16/1) dated 5-7-61 of H. V. C. of the Officer of the Deputy Commissioner, Peshawar show that such an application was not traceable in the office of the Collector nor there was any record about its having been properly instituted before the Collector. Under these circumstances, the H. V.
4. C. suggested to the Collector (Deputy Commissioner) that if approved, the petitioners be asked to make a fresh objection petition for onward submission to the District Judge, Peshawar. This suggestion was approved by the Deputy Commissioner by his order dated 6-7-61, copy Exh, P, W.
5. 16/2 in the words "as proposed". A note dated 20-7-61 in Urdu on this report further reveals that Sultan Muhammad Khan, Attorney of Mn. Bibi Rehmania was informed of the order of the Deputy Commissioner.
6. The petitioners in view of the proposal of fresh application submitted an application under section 18 of the Act on 4-8-61. In this application it is prayed that the matter be referred by the Collector for the determination of a competent Court, so as decision be given: (1)that the land measuring 23 kanals 13 marks mentioned in para. 1 of the application is the property of the applicants, (2)that the price of the land be fixed at Rs, 100 per maria, total Rs, 47,300, and (3)that the applicants be awarded compensation to the tune of Rs, 6,000 which they had spent on the construction of walls in their lands.
7. This petition was forwarded to the Court and was received in the Court of District Judge, Peshawar on 28-8-61. The petition was returned to the Collector for certain corrections on 23-9-61 by the District Judge, Peshawar. It was received back on 3-10-61. The petition was transferred to the Court of Additional District Judge, Peshawar on 17-10-61.
8. The application was resisted by the Collector alone. The pleadings of the parties gave rise to the following issues:-- (1)Whether the application is within time?
9. (2)Whether the application is against law and does not lie?
10. (3)What is the market value of the land in suit?
11. (4)Whether the applicants are the previous vendees of the land in suit and as such it is they and not the respondents who are entitled to compensation for the land?
12. (5)Relief.
2. Mr. Amirzada Khan, Additional District Judge, Peshawar, by his judgment dated 12-7-1962, in his finding on issue No, 1 observed as under:-- "The learned counsel for the petitioners has argued that this Court should determine the points raised in the objection petition sent to this Court by the Collector, and that this Court has no jurisdiction to throw out the objection on the question of limitation. According to the learned counsel the question of limitation was to be decided by the Collector and not this Court, and since the Collector had made a reference, the objection petition should be deemed to be within time.
13. This argument, however, has got no force in it because the Collector, in my opinion, has no power to contravene the express provisions of the Land Acquisition Act. If the Collector could contravene the provisions relating to limitation and could make a reference to this Court at any time, even after the expiry of the limitation period prescribed by the Land Acquisition Act, there was no necessity for inserting such a provision in the Act. This Court can go into a valid and legal reference made by the Collector and not otherwise. In the present case the reference is not valid or legal because it is time-barred. I, therefore, decide the issue against the petitioner."
14. In this view of his decision on issue No, 1, he considered all the other issues to have become redundant and, therefore, dismissed the petition.
3. The applicants Mst. Bibi Rehmania and 14 others have come up on first appeal to this Court.
15. The learned counsel for the appellants contended that the District Judge was not competent to throw out the application on the plea of limitation as the Collector had not raised any such objection and forwarded the same for decision on merits.
16. The learned A.-G. appearing for the respondents argued that it was within the competency of the Court of Additional District Judge, Peshawar, to whom a reference was made by the Collector under section 18, to reject the reference made to him by the Collector beyond the period of limitation laid down in section 18 (2) of the Act. Section 18 of the Act is reproduced below :-- "18. Reference to 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 persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall slate 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.
17. (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."
4. The learned counsel for the appellants supported his contention by the following authorities:-- (1)Secretary of State v. Fauja Singh and others , where it is ruled that it is for the appellant to show that the decision of the District Judge was erroneous.
18. (2)S. Attar Singh and another v. Secretary of State , where it is held:-- "The decision on a question of limitation on an application under section 18 rests with the Collector and not with the District Judge section 19 also indicates that the question of limitation is to be decided by the Collector. The District Judge cannot sit as a Court of Appeal over the Collector when the latter has come to the conclusion that the application is made within time. The function of the District Judge is confined to giving a decision on objections raised."
19. (3)Sind Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and 4 others . At page 839, it is observed :-- "It would appear from the above observation that the proposition laid down by the various Courts that the civil Court cannot go into the question of limitation after the reference has been made by the Collector has not been disapproved."
20. (4)Bashir Ahmad and others v. The Collector, Multan . In this authority it is stated:-- "Where it was argued that when an application under section 18 of the Land Acquisition Act, 1894 is made the Collector has no jurisdiction to refuse to make the reference even if the application in his opinion was time-barred: Held, that the Collector has jurisdiction to decide the question whether an application made under section 18 of the Land Acquisition Act, 1894 is time-barred or not and refuse to make a reference if it is found to have been made beyond the period of limitation. Reading sections 20 and 21 of the Act together, it is clear that the inquiry by the Court is restricted to a consideration of the objections raised by the interested parties in accordance with subsection (1) of section 18 of the Act. It does not contemplate the decision on the question of limitation, because that apparently is a matter for the Collector to decide."
21. (5)Collector of Karachi v. Haji Gola and others , wherein it is laid that it is for the Collector to determine the question of limitation. Even if time-barred application was referred to the Court, the objection regarding limitation cannot be raised on behalf of the Government.
22. (6)Sh. Muhammad Saeed and others v. Deputy Commissioner, Karachi where it is observed :- "The scheme of the Land Acquisition Act, 1894 as disclosed by the provisions embodied in Part III thereof leaves no doubt whatsoever, that the Court, while dealing with a reference under section 18 of the Act, does not act as a Court of general jurisdiction, but as a tribunal of special jurisdiction restricted to the matters enumerated in subsection (1) of section 18. The intention of the Legislature is made abundantly clear by the direction contained in section 21 of the Act to the effect that the scope of the inquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by the objection. It follows, therefore, that not only was the Provincial1 2 3 4 5 6 Government not competent to raise the objection which it did but that the Court was not empowered by law to examine that objection and to remand the case back to the Collector for a fresh decision, as no such power could be spelt out from the relevant provisions of the statute.
23. While dealing with a reference under section 18 of the Act the Court must confine itself to the matters mentioned in subsection (1) of that section and the only party competent to raise such matters is 'a person interested' as defined in clause (b) of section 3 of the Act. The Court is, therefore, not empowered to go behind the reference so as to examine either the legality of the acquisition proceedings or the legality and validity of the award except at the instance of a person interested, and that too only in respect of the matters specified in the section. It follows, therefore, that it has no power to remand the case back to the Collector for a fresh decision. Its duty is to proceed to give its own award in the light of the provisions and principles embodied in Part III of the Act."
5. The learned Advocate-General in support of his argument relied on the following authorities :- (1)Mahadeo Krishna Parkar v. Mamlatdar of Alibag where it is laid :- "On a reference under section 18 the Court is bound to satisfy itself that the reference made by the Collector complies with the specified conditions so as to give the Court jurisdiction to hear the reference. It is not a question of the Court sitting in appeal or revision on the decision of the Collector ; it is a question of the Court satisfying itself that the reference made under the Act is one which it is required to hear. If the reference does not comply with the terms of the Act then the Court cannot entertain it. It is the duty of the Court to see that the statutory conditions have been complied with and the reference is within time."
24. (2)A. K. Subramania Chettiar v. Collector of Coimbators where it is held :-- "In a reference made by a Collector under section 18, Land Acquisition Act, the Court has got power to go into the question of limitation, all the more so where the Collector has himself included the question of limitation as part of the reference in his letter accompanying the reference and has not decided the question himself."
25. (3)Kano Navanna Narayanaopa Naidu v. Revenue Divisional Officer, Sivakasi it is laid: "The necessary 'sine qua non' of the reference by Collector under section 18 is the basic fact that the application for such a reference must be made in accordance with the provisions of that section and within the period specified in the proviso to that section. If those provisions are not complied with, there cannot be any valid application at all and necessarily if such an application does not exist, a positive reference is incapable of existence.
26. No Court can be compelled to adjudicate upon matters which do not come before it in strict conformity with the requirements of law. It is within the inherent power of the Court to find out whether the matter that comes before it, is in the proper form and in accordance with the requirements of particular statutes. A passive attitude which the Court is compelled to adopt in case it is asked to adjudicate upon invalid references cannot be founded on law or reasons.
27. It is, thus, within the competency of the Court to which a reference is made by the Collector under section 18 to reject the reference made to it by the Collector beyond the period of limitation laid down in proviso (a) to subsection (2) of section 18 of the Land Acquisition Act."
28. (4)The Land Acquisition Collector, Rawalpindi v. Lieut.General Wajid All Khan BurKi wherein it is held that in a reference by the Collector to the District Judge, the District Judge has jurisdiction to decide whether the reference was barred by time, and as such was incompetent.
29. (5)In Azad Government of the State of Jammu and Kashmir v. Muha runad Shafi the High Court, after discussing numerous decisions on the subject has held:-- "Before a Collector can make a reference and the Court can entertain it, the conditions prescribed by section 18, Land Acquisition Act must be complied with and these conditions are : (1) a written application to the Collector; (2) by a person interested who has not accepted the award; (3)7 8 9 10 11 stating the grounds of objections as to the measurement of land, or as to the person to whom it is payable or as to the apportionment of compensation money amongst the persons interested; and
(4) within the period of time prescribed by section 18, subsection (2). These formalities are matters of substance and their compliance is an essential condition to the exercise of the powers of reference under this section.
30. The Collector acting under Part Ill of the Land Acquisition Act, in which section 18 is included, acts as a statutory authority and he is not acting as an agent of the Government, he is not competent to waive the objection of limitation and if the Collector refers a reference application made by an owner beyond the prescribed time, the reference Court is competent to go into the question of limitation. It is competent for the reference Court to see that the four conditions enunciated above are there in which is also included the condition of the limitation so as to clothe himself with the jurisdiction to hear and decide the reference application. The reference Court can go behind the reference (though not beyond the reference) to see that the four conditions existed."
6. After giving my thoughtful consideration to the argument of the learned Advocate-General and the authorities produced by him in support of his argument, I am inclined to hold the view that if a reference application has been made by the Collector beyond the period of limitation, the reference Court is empowered to go into the question whether the application under section 18 of the Act was made to the Collector within the prescribed time and as such the reference made by the Collector to the Court on a time-barred application was proper in form and valid in accordance with the requirements of the Act.
7. In conclusion, the impugned judgment of the Additional District Judge, Peshawar, merits no interference in this appeal, and hence the appeal in dismissed. Parties to bear their own costs. AIR 1934 Lah. 97 AIR 1940 Pesh. 35 PLD 1960 Kar. 826 PLD 1962 Lah. 292 PLD 1965 Kar. 413 PLD 1969 Kar. 314 AIR 1944 Born. 200 AIR 1946 Mad. 184 AIR 1955 Mad. 23 PLD 1960 Lan. 469 PLD 1971 Azad J& K 33