' Amir Alam Khan, petitioner No,4, with 22 others has filed this Constitutional petition praying that the order, dated 6th April, 1980 passed by Assistant Commissioner/Collector, Land Acquisition Rahimyar Khan (hereinafter called respondent No,1) be declared as illegal and without lawful authority whereby the petitioners' application, dated 1st April,1980 made under section 18 of the Land Acquisition Act (hereinafter called the Act) had been dismissed on the grounds that Amir Alam Khan, the sole signatory of the application, did not appear and also the application was not accompanied by a document showing him the authorised attorney of the other co-applicants.
2. The relevant facts giving rise to this petition briefly are that the land measuring 9 Acres 7 Kanals 6 Marlas owned by the petitioners, etc., situated in Rahimyar Khan town was acquired at the behest of Health Department, Government of the Punjab, for the construction of district headquarters hospital, and award was announced by respondent No,1 on 19th February,1980. The petitioners filed an application through their attorney Amir Alam Khan (hereinafter called petitioner No,4) under section 18 of the Act before respondent No,1 on 1st April, 1980 requiring the Collector to refer the matter to the Court for determining the sufficiency of amount of compensation. The same day, respondent No,1 made note on the application directing that it may be put up before him alongwith the original file without specifying the future date. On 5th April,1980, the application alongwith the original file was placed before respondent No,1 for necessary orders, who marked the presence of petitioner No,4 and asked him to produce his counsel on the following day. On 6th April, 1980, respondent No,1 noted that petitioner No,4 and his counsel were absent; the application was signed only by petitioner No,4 as general attorney of the remaining petitioners but neither original nor photo copy of the power-of-attorney was appended with it; and the Vakalatnama also bore signatures of petitioner No,4 alone, therefore, he consigned the application to record as being not maintainable". As the petitioners did not receive any notice from the civil Court for many months, they got worried and applied to respondent No,1 on 16th December, 1980 requesting that they may be informed if a reference on their application, dated 1st April,1980 has been made to the civil Court so that they may pursue the matter there. On this application respondent No,1 made an endorsement on 11th February,1981 to the effect "LAC/ summon the connected file from record room and place before me" but no progress appears to have been made thereafter. Feeling aggreved, therefore, the petitioners filed the instant petition, through petitioner No,4, their general attorney.
3. Parawise comments on the petition from respondent No,1 were obtained wherein he admitted that 9 Acres 7 Kanals 6 Marlas of land owned by the petitioners situated in Rahimyar Khan town was acquired for extension of district headquarters hospital; that application of the petitioners under section 18 of the Act was received on 1st April,1980 and no date for its nearing was fixed; that on 6th April,1980 the said application was dismissed being incompetent as it was neither signed by all the petitioners nor any document authorising petitioner No,4 to act as their attorney was appended with it. However, he admitted to have allowed the payment of compensation money of all the petitioners to petitioner No,4 after satisfying about his "authority/title to receive the payment" which he received under protest. A representative of respondent No,1 appearing before me with record today has also taken up almost the same position.
4. Learned counsel for the petitioners disputed the correctness of the order, dated 5th April, 1980 wherein respondent No,1 has marked petitioner No,4 as present and directed him to appear on 6th April,1980. He further stated that respondent No,1 personally knew that petitioner No,4 was the authorised attorney of the remaining petitioners as he had been appearing as such throughout in acquisition proceedings and also received the compensation on behalf of all the petitioners under protest. Further, argued that even if it is conceded that petitioner No,4 made default by not appearing on 6th Apri1,1980 yet respondent No,1 did not have the authority to consign the, application to record, rather under the law he was supposed to make a reference to the civil Court.
In this connection reliance has been placed on Ghulam Muhammad v. Government of West Pakistan PLD 1967 SC 191, Abdul Karim Moosa v. Deputy Commissioner PLD 1973 Kar.323 and Zardad Khan v. N.-W.F.P. PLD 1982 Pesh.
69.
5. I have carefully considered the view point of the parties and also perused the record in the light of the case-law cited at the bar.
6. It is well-settled that section 18 gives statutory right to the interested person who has not accepted the award as to the measurement of the land, amount of the compensation, etc., to require the Collector to make a reference to civil Court for determination of said question by the Court". If an application satisfies the conditions mentioned in the section then the Collector is left with no option but to refer the matter to the Court. Limitation Act does not apply to the proceedings under the Act but the proviso to section 18 fixes a special period of limitation which says that an objection under the section shall be made within 6 weeks of the making of award if the person making objection was present or represented before the Collector at such time and in other cases the period is 6 months. As for the case in hand is concerned, respondent No,1 had not dismissed the application of the petitioners as being time-barred or that the petitioners were not interested persons. Rather he observed that the petitioners were absent and that there was no evidence that petitioner No,4 was the authorised attorney of the remaining applicants. Respondent No,1 after announcing the award, in my view, had become functus officio, therefore, he had no authority to dismiss an application made under section 18 of the Act in default. It has been admitted in the comments sent by respondent No,1 and also by his representative before me that petitioner No,4 had been continuously appearing in his own right and also as attorney of the remaining petitioners during the acquisition proceedings and also received compensation on their behalf "under protest".There is thus left no doubt in my mind that petitioner No,4 was an authorised agent and an attorney of the other petitioners and, therefore, he validly made application, dated 1st April, 1980 under section 18 to respondent No,1 which was in order and within time. In the circumstances, respondent No,1 had no authority in law to withhold that application. The language of section 18 clearly envisages that an interested person 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 sufficiency of compensation, etc., by the Court', therefore, I am clearly of the view that respondent No,1 acted without lawful authority by consigning the aforesaid application of the petitioners instead of referring it to the civil Court..
6. For what has been stated above, the impugned order is declared as illegal and without lawful authority and in result thereof the application of the petitioners shall be deemed to be still pending before respondent No,1 who shall refer it in accordance with law to the appropriate Court. In the circumstances, however, the petitioners shall not be entitled to the costs.