' The petition raises a question of jurisdiction of civil Court in respect of the suit land acquired under the provisions of the Land Acquisition Act.
2. The suit land measures 3 Kanals 12 Marlas, comprising Survey No, 208, Mst. Zever Nishan, Mst.
Zaitoon and Gul Zaman, plaintiff-respondents, brought a suit for declaration to the effect that they were owner in possesssion of the land in question and award made by the Collector Land Acquisition, on the behest of the Government and Public Works Department on May 29, 1976, payment of compensation in favour of Ghulam Mustafa and others, defendant-petitioners, was the result of conspiracy against the plaintiffs, as such it was inoperative and ineffective and liable to be set aside. It was further averred that the plaintiffs had constructed a house of the value of Rs, 2,50,000 in the land and the Collector Land Acquisition failed to assess the value of the built-up property which was detrimented to the interest of the plaintiffs. The claim of the plaintiffs was repudiated by the defendants who supported the award and payment of compensation to the defendant-petitioners. The suit was instituted on August 11, 1976. During the pendency of the suit, defendant-petitioners moved an application on April 19, 1981 and alleged that the civil Court had no jurisdiction to try the suit particularly in view of the provisions of section 16 of the Azad Jammu and Kashmir Acquisition of Land (Housing and Development Schemes) Ordinance. The Court overruled the objection through the impugned order.
3. It is pertinent to mention that apart from the averment of title of the plaintiffs in the suit land, in para. 5 of the plaint it was averred that the Government issued a notification for the acquisition of land for the construction of Assembly building, M. L. A. Hostel and other offices, in 1973 and in that Notification, the land in question was excluded from the acquisition proceedings. It was further averred that the land being in share of the plaintiffs and in their possession, the plaintiffs also constructed a house of the value of rupees 2i lac and were residing therein but at the time of assessm ent of value of the land, built-up property was not assessed. It was further averred that the value of the land assessed by the Collector was far less than the market value as at the relevant time the market value was Rs, 10,000 per Kanal, whereas the value of land assessed and awarded was Rs, 4,000 per Kanal. In para. 6, it was stated that the entire acquisition proceedings were carried without a notice and knowledge of the plaintiffs. The action of the Collector was stated to be the result of conspiracy of the defendants against the plaintiffs.
4. The parties are in agreement that the suit land was acquired under the provisions of the Land Acquisition Act of 1894. Section 4 of the Act provided that whenever land in any locality was needed for the public purposes, a notification to that effect shall be published in the official Gazette and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality and the notification shall, among others, set out the boundaries of the land proposed to be taken and intended line of the work. After the preliminary inquiry when the Government was satisfied that particular land was needed for public purposes or for a Company, it was provided under section 6 to make a declaration to that effect and such declaration was to be published in the official Gazette. Section 9 of the Act imposed a duty on Collector to cause public notice on occupier of the land and on all such persons known or believed to be interested therein or entitled to act for persons so interested. The notice was to be served on such persons or was to be given at convenient places, in area near to the land to be taken. In case it was discovered that the person interested resided elsewhere and had no agent to receive the notice, the notice was to be sent to him by post in a letter addressed at his last known residence or place of business.
Sections 10 and 11 empowered the Collector to hold inquiry into the interest of the persons in possession or owner of the land and to take measurement of the land and to assess its value for payment of compensation to the interested persons. The award of the Collector was described as final under section 12 of the Act and subsection (2) of section 12 made it imperative for the Collector to give immediate notice of his award to interested persons, directly or by their representative. In case of dissatisfaction with the award, any person interested who refused to accept the award, was authorised to move the Collector under section 18, requiring him to refer the matter for the determination of the Court, for the settlement of measurement of the land ;
(ii) amount of compensation ;
(iii) person to whom compensation was payable ; or
(iv) apportionment of compensation among persons interested.
Section 30 of the Act further postulated that on settlement of amount of compensation under section 11, if any dispute as to whom compensation was payable, the Collector was empowered to refer the dispute to the decision of the Court. It is manifest from the analysis of the various provisions of the Act that apart from the mode of the acquisition of property, the Act provided a scheme containing machinery for taking measurement of the property, assessment of its value and payment of compensation to the persons interested. It also postulated a scheme for providing adequate remedy for adjudication of the rights of the aggrieved persons in accordance with the well-known norms of administration of justice. In case of any dispute, as to the measurement of the property, its value or apportionment, the Act provided a remedy through a reference by the Collector to the civil Court for settlement of the dispute. The scheme of law under the Act, was, therefore, complete and exhaustive.
5. Section 31(2) further laid down that if a person interested in the compensation refused to consent to receive it or if there was no person competent to alienate the land or there was any dispute as to the title to receive the compensation or as the apportionment of it, the Collector was empowered to deposit the amount of compensation in the Court to which reference would be submitted. Proviso 3 under subsection (2) of section 31 laid down that nothing herein contained shall effect the liability of any person, who may receive whole or any part of any compensation awarded under the act to pay the same to the person lawfully entitled thereto. The language used in the proviso, prima facie, enlarged the scope of remedy for an aggrieved person. Including a right of civil suit. The provisions of proviso of section 31(2) received attention of the superior Courts of Sub-Continent innumerably and the consensus was that whenever a person interested failed to avail the remedy provided under section 18 of the Act for want of notice or disability or other sufficient cause, he was not debarred to invoke jurisdiction of civil Court to seek his redress.
Conversely, a person having notice of the award and failing to avail the opportunity by moving the Collector for making reference to the civil Court for redressing his grievance, was not considered eligible to subsequently invoke jurisdiction of the civil Court as such an omission of person interested was hit by the mischief of rule of res judicata. Likewise, a person who availed the remedy by reference but failed to achieve the intended object, was not permitted to turn round and file a civil suit for the satisfaction of his grievance. It appears that the legislature provided a double check to safeguard the rights and interests of true owners of the property. Therefore, keeping in view the rule of limitation applicable under section 18 of the Act, it provided further safeguard in the shape of third proviso to section 31(2), so that the owner of the property was able to seek his redress at any time on knowing detriment caused to him. The powers of the civil Court were, thus, kept open to an aggrieved person not having availed the remedy provided under sections 18 and 30 of the Act.
6. In Hemanta Kumar Banerjee's case (1), where the compensation of the land acquired under the Land Aquisition Act was received by one of the co-sharers in actual possession of the land, the other co-sharers having no notice and thereby deprived of their share in compensation, filed a civil suit for payment of their share. An objection was raised to the competence of the suit hut it was overruled by the following observations :- "it is true that the compensation money stands as a substitute for the property itself. In law all the co-sharers are entitled to enjoy and possess the common property jointly, and if one of them asserts an exclusive title to any portion of such property and ousts his co-sharers from enjoyment or possession of the same, the
(1) AIR 1941 Cal. 635 latter can certainly institute a suit for recovery of joint possession in respect of this particular item without being obliged to sue for partition of the entire joint estate. When a joint property is acquired under the Land Acquisition Act, the enjoyment, which the co-sharers are entitled to under the Act, is to get proportionate share of the compensation money that is given by the award. If one co-sharer receives anything in excess of his share, he should be bound to refund it to the true owners, and this is a right, which as I have said above, is recognised by the proviso to section 31(2), Land Acquisition Act."
' In Shri Deo Sansthan Chinch wad's case (1), Mr. Justice Gokhail who delivered the judgment, expressed his view of the proposition as under "Unless the claim of a person, who is lawfully entitled to a share in the compensation money, is already adjudicated upon under the provisions of the Land Acquisition Act or such person having had notice of such proceedings, appears therein and fails to assert and prosecute his claim to a share in accordance with the provisions of that Act, he would be entitled under section 31(2) proviso 3, to file a suit to recover his share from the person who may have received the whole or any part of the compensation amount awarded under the Act."
' In Md. Imran's case (2) Mr. Justice S. Sarwar Ali expressed his view in the following observations "Where no reference has been made either under section 18 or 30 of the Act by the Collector, an aggrieved person is entitled to institute a suit for recovery of compensation from a person wrongfully receiving it. The language of the third proviso to section 31(2) is so clear and the entire scheme of the Act so indicates that although a forum has been provided for raising of dispute as to apportionment which could be settled and finally determined by the Court, yet it could not be said that if no such dispute had been raised, the party is precluded from raising the dispute in a civil Court. If, however, a dispute is raised and decided, that decision in such a dispute would, on the general principles of res judicata, be a bar to obtaining relief in a subsequent suit. In other words, it is not that the jurisdiction of the civil Court is barred so far as settlement of disputes of the parties claiming to be interested in the compensation money, is concerned, but what has to be clearly understood is that if such a dispute is raised and decided by the 'Court' under the Act, such a decision will operate as res judi:ata in a subsequent suit. This, therefore, means that the Land Acquisition Act does not contemplate the complete exclusion of civil Courts in respect of determination of dispute between contesting claimants to the compensation money."
' In Said Umar Shah's case (3), an identical proposition was raised before Mr. Justice Abdul Hakeein Khan, C. J., who observed as :- "Civil Court, jurisdiction of.-Suit for declaration as to ownership of land and for share in compensation payable under Land Acquisition Act, 1894. Plaintiff not having been served with notice under
(1) AIR 1962 Born. 214 (2) A FR 1972 Pat. 482 (3) PLD 1978 Pesh. 3 section 9, Act I of 1894, not required to move Commissioner under Land Acquisition Act, 1894 and could move civil Court for purpose. Civil suit, held maintainable."
7. It is relevant to state here that in view of prevailing conditions, in order to curb delay and shorten legal course, with the object of acceleration of development, it was deemed to introduce another legislation in the shape of Azad Jammu and Kashmir Acquisition of Land (Housing and Development Schemes) Ordinance. Under the provisions of the Ordinance, not only the system or scheme provided under the Land Acquisition Act was considerably changed, it equally changed the forum for providing remedy to an aggrieved interested party. This was so as instead of maintaining presentation of reference under sections 18 and 30 of the Act, the Ordinance postulated an appeal against the award of the Collector and this appeal was to be preferred before the Commissioner under section 11 of the Ordinance. Subsection (2) of section 11 laid down that the Government or the Official Development Agency or any person aggrieved by the awaid of the Collector may, within one month of such award, file an appeal to the Commissioner. It further laid down that wnere the affected person had no intimation of the award, the appeal would be filed within six weeks of the award. The Commissioner was empowered to make suitable order as he may deem fit after serving notice on the parties to the 'appeal before him. Under subsection (3), the order of the Commissioner made on appeal, was described as final as it was not likely to be called into question in aily Court. Section 16 which was originally added as section 15-A, provided that all references, suits, appeals and applications regarding any matter now within the jurisdiction of the Commissioner, under the provisions of the Ordinance, pending in any Court, under any law on the subject, immediately before the commencement of the Ordinance, shall abate forthwith.
However, through a proviso, it was laid down that any party to such reference, suit, appeal or application (referred in subsection (1)) may, within 90 days from the date of such abatement, prefer an appeal to the Commissioner in respect of any such matter which is in issue in such reference, suit, appeal or application. It was in the light of this provision of law that an objection was pressed in the civil Court to declare the abatement of the suit and shifting of venue of the proceedings from the civil Court to Commissioner. It is true that language of section 16 of the present Ordinance which was section 15-A at the relevant time, provide abatement of all reference, suits, appeals and applications pending in different Courts of law and shifting of the forum from those Courts to the Court of Commissioner, but the fact remains that in order to bring the case within the mischief of provisions of the Ordinance it was equally essential to examine that a particular case was fit and qualified to be transferred or shifted as under section 3 of the Ordinance. Section 16 was attracted only to those acquisition proceedings where the land was sought to be acquired for development and housing schemes approved by the Government or Official Development Agency. This proposition was deeply examined by this Court in various cases and it was held 'that the provisions of the Ordinance were attracted only on the satisfaction that the scheme (for which the land was to be acquired was duly approved by the Government or Official Development Agency). This was a condition precedent for acquisition under the Ordinance.
In absence of proof of such approval by the Government or Official Development Agency, the provisions of the Ordinance were not applicable. In other words, the provisions of Ordinance applied retrospectively where the condition of previous approval of the scheme by the Government or Official Development Agency was established. In all other cases provision did not apply. In Muhammad Sharif's case (1), the land in question was acquired under the provisions of the Land Acquisition Act and reference under section 18 of the Act was sub judice before the learned District Judge when the Ordinance came into force. An objection to the jurisdiction in the light of' provisions of section 16 of the Ordinance was raised. The learned District Judge sustained the objection and dismissed the reference but on revision before this Court, on examining the relevant provisions of law on the point, it was held that the approval of the Government or Official Development Agency for initiating acquisition of property for development and housing schemes, was a condition precedent. In absence of such an approval, it was not available to press the objection to exclude jurisdiction of the civil Court under the provisions of the Land Acquisition Act or general law. The objection was, therefore, overruled. In the present case, likewise, in order to successfully raise the objection, it was imperative for the petitioners to satisfy that the land in question was acquired strictly in accordance with the provisions of the Ordinance. Unless such a condition was positively established, in my estimation, the objection to exclude jurisdiction of civil Court cannot be availed.
8. It is already noticed that in the pleadings of the plaintiff. Respondents, it was expressly stated that the plaintiffs had no notice or knowledge of the acquisition of award of the Collector and that they being owner in possession of the land, were deprived of the compensation by manipulation of the defendant-petitioners. Having no knowledge of the award, they were unable to agitate their right and interest in accordance with the provisions of section 18 of the Act but at the same time, they were not deprived to do so in civil suit as section 31(2), proviso 3 enabled them to seek their remedy by suit to a civil Court. In view of the circumstances of the case listed above, the civil Court was not deprived of its jurisdiction.
9. It is relevant to state here that an objection to jurisdiction of the Court was not raised in the written statement but through a miscellaneous application moved on April 19, 1981. As the application was opposed by the plaintiffs, the trial Court disposed of the objection of jurisdiction at the earliest stage. Order VIII, rule 2, C. P. C. Made it imperative that the defendant must raise all grounds of defence by His pleadings, as if such grounds of defence were not raised at the earliest, subsequently, it was likely to take the opposite party by surprise. Therefore, under the Rule, it was provided that all the grounds of defence. Including fraud, limitation, release, payment, performance or facts showing illegality including question of jurisdiction, were to be raised in the pleadings. Rule 8 postulated that any ground of defence arising after the institttion of the suit or presentation of the written statement, could be raised by the defendant in his written statement and rule 9 further provided that no pleading subsequent to the written statement of a defendant other than by way of defence to a set off, shall be presented except by the leave of the Court and upon such terms as the Court think fit. In present case, the aforesaid provisions of law were disregarded by , the parties as we. As by the Court. This was so as the question of jurisdiction was not listed in the grounds of defence in the written
(1) P I. D 1984 Azad J & IC, 22 statement. In the alternative, such a ground was to be raised through an amendment in the pleadings but this was not done. The effect of such an omission, therefore, was that no issue was framed and no evidence requiring the fulfilment of the conditions by production of evidence analysed in the preceding part of the order, could be produced.
10. In their pleadings, the plaintiffs specifically denied notice of the award or knowledge and invoked jurisdiction of civil Court through a suit in the light of the provisions of section 31(2), proviso 3 of the Land Acquisition Act. In order to exclude jurisdiction of the civil Court, therefore, it was enjoined upon the defendant-petitioners to prove otherwise. The question of jurisdiction, in absence of evidence on the point, therefore, cannot be finally determined. The trial Court after an amendment in the pleadings of defendants, shall frame an issue and record evidence of the parties and shall reconsider the proposition in the light of this decision. There is no force in the petition. It is, therefore, dismissed.