' The controversy raised herein pertains to jurisdiction of Additional District Judge in disposal of reference made to him by the Collector Land Acquisition, against an award dated 6th of July, 1978, in the light of the provisions of section 18 of the Land Acquisition Act (hereinafter to be referred as the Act) and section 16 of the Azad Jammu and Kashmir Acquisition of Land (Housing and Development Schemes) Ordinance, 1980 (hereinafter to be referred as the Ordinance).
2. . The land was acquired under the Land Acquisition Act and award was given on 6th of July, 1978 ; compensation was fixed @ Rs: 2,000 per Kanal. The award was not accepted by the owners of the land and they preferred an application before the collector, requiring him that the matter may be referred for determination of the Court. The reference was accordingly made to the Court, on 30th of July, 1978. The District Judge transferred the reference to the Additional District Judge, Bagh. For disposal. During its pendency, the Government introduced a new law for acquisition of land known as the Azad Jammu & Kashmir Acquisition of Land (Housing and Development Schemes)
Ordinance, 1979. Section 16 of the Ordinance provided that all references, suits, appeals and applications, regarding any matter hereinafter within the jurisdiction of the Commissioner under the provisions of the Ordinance, pending in any Court under any law on tile subject, immediately before the commencement of the Ordinance, shall abate forthwith. Section 11 of the Ordinance conferred powers of appeal and review on the Commissioner. It was provided therein that any person entitled to compensation under the award and Government or the Official Development Agency, aggrieved by award of the Collector, may, within one month of such an award, file an appeal to the Commissioner. In view of the aforesaid provisions of section 11 read with section 16 of the Ordinance, the learned Additional District Judge dismissed the reference vide his order dated 21st of June, 1980. In presence of the decision of the Additional District Judge, the land-owners preferred an appeal against the award before the Commissioner. The Commissioner transferred the appeal to the Additional Commissioner who was equally competent to decide it. The Additional Commissioner modified the award by an 'increase in compensation from Rs, 2,000 to Rs, 3,000 per Kanal, vide his order dated 30th of June, 1983. The land-owners, feeling still dissatisfied with the rate of compensation and having no other remedy, sought legal advice to seek their redress. Under the circumstances, jurisdiction of this Court was invoked under section 54 of the Act.
3. Mr. Abdul Khaliq Khan, Advocate who represents the respondents, asked for dismissal of the appeal for want of limitation. Mr. Sardar Khan, the learned counsel for the appellants, on the other hand, submitted that the memorandum of appeal was likely to be treated as a revision petition, as no appeal was available against the order of the Additional District Judge. According to the learned 'counsel for the appellants, the order was not covered under section 54 of the Act, as such, it was likely to be quashed in exercise of revisional jurisdiction of this Court.
4. To appreciate the proposition in its true perspective; it is considered necessary to review the provisions of the Ordinance. The preamble of the Ordinance suggests that a special law was introduced to meet the urgency for accomplishment of housing and development schemes expeditiously within the limit of financial capacity of the Government. It was, therefore, thought conducive and expedient to frame law in the shape of the Ordinance. The aforesaid vied finds support from the manner and procedure for acquisition of land as well as reduction in status and change in the forum of appeal. Under the Land Acquisition Act, an interested person in the property under acquisition, was vested with a right to prefer a reference against an award and such reference was 'decided by the principal Court i,e, District Judge, whose award was subject to appeal to the High Court, under section 54 of the Act and further subject to ultimate scrutiny of the Supreme Court. The scheme of the Ordinance contrarily, shows that a person aggrieved by an award of the Collector, was provided with the remedy of appeal to the Commissioner. The Order of the Commissioner was final and it was not left open to judicial review in the light of the provisions of section 11 of the Ordinance. Thus, on one hand, the procedure for acquisition, was shortened and on the other hand, the scope of remedy to an aggrieved person was reduced only to single appeal.
Besides the position discussed above, the scope of application of the Ordinance is to be tested from the definition of "Housing and Development Schemes" as described under section AN and (g).
The "development scheme" has been defined to mean any public welfare scheme, including Water Supply, Roads, public buildings, Electric installation and land used for Industrial purposes or Army purposes or any other similar purposes specified by the Official Development Agency. "Housing Scheme" is defined as a scheme which provides for residential sites, houses or apartments, including ancillary land used such as- . (i) building and other facilities for health, education, culture, transportation, communication and shopping ;
(ii) environmental improvements ; and
(iii) utility services, that is to say water supply, drainage, sewerage, sanitation, electricity and fuel.
5. It is evident from the aforesaid definitions that the provisions of Ordinance shall be attracted exclusively to acquisition of land meant for all or any of the schemes falling within the ambit of development schemes and housing schemes and in no other case. At this stage, it may be mentioned that the acquisition proceedings likely to be carried under the provisions of the Ordinance, are subjected to further limitations imposed under section 3 of the Ordinance. Section 3 enjoins that notwithstanding the provisions of Land Acquisition Act or any other law for the time being in force, all lands within Azad Jammu and Kashmir shall be liable to acquisition at any stage under this Ordinance, for development and housing schemes, approved by the Government or Official Development Agency. This shows that the acquisition of land under the Ordinance can only be undertaken in presence of an approved scheme and such approval is to be accorded by the Government or Official Development Agency. Thus, approval of scheme for which land was to be acquired, by the Government or the Official Development Agency, was a condition precedent. In other words, any acquisition under the Ordinance in absence of approval of the scheme by the Government or the Official Development Agency, was beyond the scope of the Ordinance. The word, "Government" refers to and means the Azad Government of the State of Jammu and Kashmir and the words, "Official Development Agency" mean any nation-building Department and includes- (i)autonomous and semi-autonomous body established as such under any law for the time being in force ;
(ii) any Organization or Organizations that the Government may declare to be Official Development Agency.
' The definition given above, obviously, refers to autonomous and semi-autonomous bodies which are constituted and established within the State and their status as such is acknowledged or declared by the Government.
6. It has become clear that the provisions of the Ordinance were exclusively attracted in the cases of acquisition of land required to he made for the object and purposes of housing and development schemes and such schemes were necessarily to be approved, prior to acquisition, by the Government or the Official Development Agency. In the present case, land was acquired for the Army purposes, for extension of the Cantonment area. It has already been noticed that the acquisition of land for Army purposes is included in development schemes, as defined under section 2(b) of the Ordinance. But in order to attract the provisions of the Ordinance, it was further necessary to prove that the acquisition was undertaken under the approval of the Government or the Official Development Agency. It is nobody's case that the scheme for extension of Cantonment area was either approved by the Government or an authorised official Development Agency.
Despite the fact that the defence was organized and controlled by the Government of Pakistan and not by the Azad Government of the State of Jammu and Kashmir, yet the law empowered the Collector to acquire the land for Army purposes. But the authority of Collector to acquire the land for Army purposes was restricted under section 3 of the Ordinance. The land can only be acquired for Army purposes provided such scheme was approved by the Government or Official Development Agency. In absence of proof of approval of scheme for acquisition for Army purposes, by the Government or Official Development Agency, the Collector was not vested with the power to undertake acquisition under the Ordinance. The conclusion is that the acquisition for a scheme undertaken for Army purposes, is equally subject to the restrictions contained under section 3 of the Ordinance. No exception to the rule was available in the Ordinance. As the acquisition was not shown to have been made for accomplishment of the scheme approved by the Government or the Official Development Agency, it is not available to the respondents to suggest that the provisions of the Ordinance were attracted in the case.
7. It was imperative for the learned Additional District Judge to analyse the scheme of law contained in the Ordinance and to satisfy that the provisions of the Ordinance were fully applicable to the case in hand, only then to dismiss the reference on account of its abatement. The order of the Additional District Judge shows that he failed to analyse the true scope and position of law and fell in error to entertain erroneous consideration under a misapprehension of law and facts of the case. Jnstead of applying his mind deep to the provisions of law, he assumed exclusion of jurisdiction and thereby C dismissed the reference by a cryptic order. Mr. Abdul Khaliq Khan, the learned counsel for the respondent, was asked to satisfy this Court as to how the case fell within the purview of the provisions of the Ordinance. The learned counsel was unable to elaborate and satisfy that the case, in an manner, fell within the ambit of the provisions of the Ordinance. It is, therefore, clear that unless the necessary ingredients enumerated under the provisions of the Ordinance were shown to exist, the provisions of sections 11 and 16 of the Ordinance, in no circumstances, can be invoked in aid of the impugned order. This view finds support from Tariq Hussain Farooqi's case (I).
8. The second part of the proposition, sought to be settled, is whether an appeal lies against the order of Additional District Judge or not. It is already decided that the provisions of the Ordinance are not attracted in the case. In presence of the finding, the scope of second part of the controversy relating to appeal, is to be settled in the light of the provisions of section 54 of the Act.
Section 54 of the Act is attracted when an award is made by the Court in reference preferred under section 1.8 of the Act. It .Enjoins that subject to the provisions of the Code applicable to the appeals from the original decrees, notwithstanding anything to the contrary in any enactment D for the time being in force, the appeal shall only lie to the High Court from the award or from any part of the award of the Court. A close study of the provisions suggests that the proceedings undertaken under the Act when culminate in an award or part of the award of the Court, it is subject to an appeal to the High Court. In other words, for preferring an appeal, against the order of subordinate Court to High Court, the. Condition precedent is that the order under appeal must be constituted as an award or part of an award of the Court. The word, "award" was not defined under the Act. The meaning and scope of award, as contemplated be the Act, is ascertainable from the provisions of sections 11 and 26 of the. Act. Section 11 falls within the sphere of powers of the Collector, authorised to make an award. It contemplates that the Collector, on completion, of an inquiry, undertaken by him, shall make an award under his hand,.:-- (i)the true area of the land
(ii) the compensation which in his opinion should be, allowed for the land ; and
(iii) the apportionment of the said compensation among all the persons, known or believed to be interested in the land, of whom or of whose claims, he has information, whether or not, they have respectively appeared before him.
The essentials to constitute an award of the Collector consist of area of the. Land, the amount of compensation of such land and the persons entitled to the compensation. Absence of any one of the aforesaid essentials, would not constitute the finding of the Collector as an award. Section 26 of the Act equally provides a scheme for making an award by the Court. It enjoins upon the Court which makes an award, to specify the amount awarded by it under clause first of subsection (I) of section 23, and also the amounts (if any) respectively awarded under each of the other clauses together with the ,E grounds of awarding each of the said amounts. The award of the Court shall, therefore, contain, in addition to the area of land and particulars of persons found claimants, the exact amount of compensation assessed and fixed by the Court under clause (i) of subsection (I) of section 23 of the Act and the amount awarded under the succeeding clauses, if any. It is made incumbent upon the Court to advance reasons and grounds in support of its assessment and fixation of amount of compensation. It is for this reason that under subsection (2) of section 26 of the Act, an award of the Court was assigned the status of a decree, as contemplated under section 2(2), C.P.C. The word, "Award" has been defined in 'Wharton's Law Lexicon', as under:- "An award is accordingly, in the first place, the taking a matter into consideration and pronouncing judgment upon it; but in later times {{FOOT NOTE}}
(1) PLD 1981 Azad J & K 38 {{FOOT NOTE}} the designation has been transferred exclusively to the consequent judgment-Wedgo.), a document containing the determination of commissioners, under an Inclosure Act or other public statutes; also an instrument embodying an arbitrator's decision on a matter submitted to him. It must follow the submission, but need not necessarily be in writing, unless so prescribed. An award is generally considered as published as soon as the arbitrator has done some act whereby he becomes functus officio, and has declared, and can no longer change, his final mind. As soon as the award is executed, notice thereof should be given to all the parties that it is made and ready to be delivered; and if the submission direct that it be delivered to the parties by a certain day, in order to be valid, it must be so delivered accordingly. It is usual for an arbitrator to keep the award until his costs are paid. The award must be stamped with a 10s. Stamp.
' Any words expressive of a decision are an award. Recitals ar unnecessary. The award must be entire, final, on all the matters reerred, or it will be void in two; unconditional, but it may be alternative, without reservation or delegation, except as to ministerial acts, certain, mutual, possible, and consistent, without palpable mistake; when partly good and partly bad, the good part, if separable from the bad, will be valid.
' A valid award is ordinarily final and conclusive on all matters referred by the submission, but it may be stated in the form of a case for the High Court, unless the submission exclude such power.
The arbitrator himself may correct any clerical error or omission in his award."
9. It is manifest that an award of the Court must consist of the following :--
(i) Area of the land acquired; (ii)name and particulars of the persons interested or claimant;
(iii) the amount of compensation assessed and fixed by the Court. Along-with the grounds and reasons independently arrived at by it; and
(iv) it is final and conclusive on all matters.
' In other words, an award of the Court or part of the award, is an order or judgment determining finally the compensation of land. It is recorded on final and conclusive evidence. Orders or judgment short of the aforesaid essentials, cannot be termed as award of the Court. An order excluded from the purview of the award of the Court may be counted as order of dismissal of reference in default; rejection of reference for want of jurisdiction, or failure of the party to furnish complete particulars of opposite-party, for its summoning, or failure to deposit necessary fee for summoning the opposite-party or to produce evidence or failure to act in compliance with the direction of the court, necessary for the progress of the case or its final disposal. In the instant case, reference was not decided on merits, as the same was dismissed for want of jurisdiction, under the provisions of section 16 of the Ordinance. The order, in no circumstances, can be deemed as an award of the Court. This position of the case, obviously, suggests the. The impugned order not being an award of the Court, was not appealable under section 54 of the Act.
10. It is undisputed that the proceedings in the reference pending before the District Judge or the Additional District Judge, as the case may be, are open to scrutiny of the High Court. The High Court in exercise of its supervise. Gory jurisdiction, is competent to call for the record of the case decided by subordinate Court and to make orders, suitable just and expedient in its view; provided the order of the subordinate Court was not assailable in an appeal. The High Court was empowered to scrutinize An order or decision of the subordinate Court, on its satisfaction that the subordinate Court appeared- (i)to have exercised a jurisdiction not vested in it by law; or
(ii) to have failed to exercise a vested jurisdiction; or
(iii) to have acted in exercise of its jurisdiction illegally or with material irregularity.
' In presence of all or one of the conditions, enumerated above, it was enjoined upon the High Court to vacate the Illegal order of the subordinate Court by making a just and legal order.
It is already settled that the impugned older was not subject to an appeal under section 54 of the Act and it is equally seen that the Additional District Judge was not justified to dismiss the reference on the ground of abatement under section 16 of the Ordinance. As erroneous approach of the subordinate Court resulted in its failure to exercise a vested jurisdiction, it is, therefore a fit case where in exercise of revisional jurisdiction, this Court is called upon to rectify the mistake by setting aside the impugned order and by restoration of the reference to the file of the subordinate Court for decision on merits.
11. The objection of limitation was equal pressed ,by the learned counsel for the respondent, in laying hands on the case, in exercise of revisional jurisdiction of this Court. It was pointed out that even a revision was not maintainable on expiry of 90 days. It is uncontroverted that no limitation is prescribed for a revision. It is only a practice that ordinarily revisions against the orders of the subordinate Courts are entertained by this Court, provided they are preferred within 90 days. The rule was not an absolute one The primary function of the Court is to do complete justice and not to allow an injustice and iilegality to perpetuate. It is equally enjoined upon the Court to protect and safeguard the vested rights of the parties. Dispensation of justice does not acknowledge the rules which are patently repugnant to any rules of justice. As there is no limitation prescribed in the case of revision, the fact that ordinarily revisions are entertained within I 90 days, by itself is not sufficient to preclude the petitioners from successfully seeking their redress. In an identical situation faced by this Court in Muhammad Yusuf's case (I) this Court entertained a revision petition after more than 15 years and set aside ex parte decree, passed in illegal exercise of jurisdiction by the Sub-Judge, Rawalakot, in exercise of its revisional jurisdiction coupled with its powers under the Constitution Act, 1970 and Courts and Laws Code Act. In Shafait Muhammad's case' (2), the learned Judge, in answer to an objection of limitation in the case of revision petition, observed that the limitation does not stand in the way of exercise of revisional powers. In opinion of the learned Judge, Court once seized of a case in exercise of revisional jurisdiction, may make such orders in the case as it thought fit. In Sardar Ismail Khan's case (3), Mr. Justice Muhammad Yusuf Saraf, who recorded the judgment on behalf of the Court, observed as under :- ' In our opinion in a case like the instant one in an appeal which is time-barred because on the wrong advice of a lawyer it had been earlier filed in a wrong Court, the appellant is entitled to a deduction of the period spent in such Court. In the light of the case-law discussed {{FOOT NOTE}}
(1) PLD 1972 Azad & K 90 (2) PLD 1975 Azad J & K 114
(3) PLD 1975 Azad J & K 131 {{FOOT NOTE}} above we are of the view that the principle embodied in section 14 is a sufficient cause within the meaning of section 5."
In the case cited above, appellants, on wrong advice of the lawyer, preferred the appeal in wrong Court. After a considerable time when the defect. Was brought to light, the memorandum on appeal was withdrawn and the same was preferred in the High Court. There too, an objection of limitation was raised but the learned Judges condemned the delay in tiling the appeal, occurring due to filing of appeal in a wrong Court, due to wrong advice of the lawyer. The purpose of reference of the authorities is to show that in presence of a genuine and sufficient cause, delay, even in the case of an appeal where period': of limitation is prescribed in the statute, is condonable.
In the present cast,' apart from the . Fact that the Additional District Judge illegally dismissed the reference by his misapprehension of the provisions of law; the petitioners were not ascribed negligence in pursuing their case. They preferred their appeal K before the Commissioner in the light of erroneous order of the 'Additional District Judge and due to wrong advice of the lawyer. On getting correct advice, after disposal of the appeal by the Additional Commissioner, they lost no time in invoking the jurisdiction of this Court. The delay, whatever it may be, is excusable. The objection is, therefore, not sustained. ,
12. The appeal is, therefore, treated as revision petition and in exercise of revisional jurisdiction, the order of the Additional District Judge is quashed. As the order of the Additional District Judge is found illeia1, the order of L, the Additional Commissioner recorded in appeal, having been found without jurisdiction is equally not sustainable. The reference is, therefore, restored to. The life of Additional District Judge, Bagh, who shall decide the same on merits. 'The parties are left to bear their own costs.