ORDERKHAWAJA MUHAMMAD SAEED, J.-Necessary facts giving rise to the present controversy, briefly stated, are that the Government started proceedings for Acquisition of Land comprising survey Nos. 173, 170, 196, 178, 179, 180, 192 and 203 measuring 12 kanals and 11 marlas Situate in Village Charwaha Tehsil and District Muzaffarabad for the construction of Hill Farming Project Area road.
Out of this land, land measuring 4 kanals and 11 marlas under survey Nos. 179, 180 and 181 belonged to one Sheroo son of Din Muhammad who happened tfrbe the father of the appellant and respondent No.2 and one Mst. Sarwar Jan and brother of respondent No.1. The Land Acquisition Collector Musaffarabad vide his order dated 16-1-1988, made an award in favour of all these persons. On 22-3- 1988 the present appellant along with her sister Mst.Sarwar Jan applied to the Collector for making a reference under the Land Acquisition Act to the District Judge Muzaffarabad.
After receiving the reference from Collector Land Acqusition Muzaffarabad the learned District Judge Muzaffarabad invited the objections from the other side. On 4-5-1988, the objections were filed on behalf of the respondents whereby it was specifically pleaded as preliminary objection that the reference was filed after more than six weeks as such it is barred by limitation and liable to be dismissed on this ground. In the light of this preliminary objection the learned District Judge Muzaffarabad framed issue about limitation on 5-5- 1988. And later on after hearing the learned Counsel for the parties sustained the preliminery objection with regard to limitation and dismissed the reference by holding it as barred by limitation.
2. It is this judgment of the learned District Judge Muzaffarabad passed on 16-5-1989 which has been assailed in this Court through the present appeal.
3. I have heard the learned Counsel for the parties and have also gone through the relevant record of the case.
4. It was argued by the learned Counsel for the appellant that no notice as contemplated under Section 12, sub section (2), of the Land Acquisition Act was given by the Collector to the appellant, as such in this case the period of limitation which was available to the appellant for bringing her reference was six months, and not six weeks as held by the learned District Judge Muzaffarabad. In support of his contention the learned Counsel relied on P.L.D. 1970 Lahore 321 and P.L.D. 1973 Head Note 124 Page 191.
5. On the other side, it was contended by the learned Counsel for the respondents that a specific ground was taken by the appellant to the effect that due to her illness, she could not file her reference in time. She had also taken the responsibility to produce the medical certificate in support of her illness. She got the chance but could not produce any medical certificate, as such she was not entitled to get extension in period of limitation. It was further argued that objection with regard to the notice under section 12 sub section (2) of the Land Acquisition Act was not taken either in the reference or in the appeal before this Court. The appellant therefore, is not entitled to raise this point at the time of arguments. It was further contended by the learned Counsel for the respondents that the appellant was aware of this fact that period of limitation was six weeks. Due to this reason, she had sought extension in the limitation on the ground of her illness.
6. In the light of the respective contension of the learned Counsel for the parties, I have gone through the record prepared and maintained by the Collector Land Acquisition Muzaffarabad and found that no notice eever was issued by the Collector to any interested party. It was at the early stage-of the acquisition proceedings when Tehsildar Settlement had recorded the statements of the appellant and respondents and also some witnesses who were produced by them in support of their respective claims. The learned Counsel for the parties were also given opportunity to see the file themselves in order to ascertain whether any notice was ever issued to the appellant. But they also agreed that no notice or even any interim order was available on the file in this regard. In this case a notice under section 4 of the Land Acquisition Act was issued on 2-9-1987 stating therein that the land in dispute was required to be acquired for the construction of Hill Farming Project Area. No notification as contemplated by sections 5,6, and 9 of the Land Acquisition Act were issued later on. A notification was issued and published under Section 17 of the Land Acquisition Act of 1894 on 10-10-1987.
7. No doubt the appellant had not taken in her application for reference this ground that no notice under Section 12 sub section (2) of the Land Acquisition Act was served on her. But this point has been specifically taken before this Court in appeal.
8. In this limit compass the question which now requires to be determined is, that even though the point with regard to notice was not raised by the appellant in her application for reference.
Whether she can be permitted to raise this point at this stage.
9. Under section 12 sub section (2) of Land Acquisition Act, the stage to give noticed arises immediatly when the award is made by the Collector. This Section is to be read along with Section 18 of the Land Acquisition Act. By taking both of them jointly in consideration it become obligatory upon the Collector to give notice for making t)f the award as early as possible, because only then an application for reference can be made by any person interested who has not accepted the award. It has been laid down in many authorities that a person interested do&s not mean a person whose interest the Collector is prepared to claim. In this case, the Collector had accepted the interest of the appellant as he had made the award in favour of those whose names appeared in Naqsha- Haqiyyat(._ .....) which was prepared by Settlement Authorities. In Naqsha- Haqiyyat(........... ) the name of the appellant is given; morever there is another entry which shows that except appellant her sister her brother etc. Have received the compensation to the extent of their shares.
As appellant was one of the party in whose favour, the award was made, it was therefore, mandatory for the Collector Land Acquisition to effect the service on her as laid down by Section 12 sub section (2) of the Land Acquisition Act. The question of limitation for the purpose of Section 18 is to be decided in the light of Section 42 of the Land Acquisition Act. The appellant therefore, can raise this point even at this stage. It was held in P.L.D. 1970 Lahore 321. That if notice is not given to interested person of the making of the award within such time as would leave enough respite to a person to move an application under section 18 within a period of sue months from the date of the making of the award. It would be a non-compliance with an obligatory part of the statute and the result would be that the award given by the Collector would be vitiated and action under section 11 shall have to be taken afresh so that a new award be made.The relevant observation is given below from page 329 of the same authority for the convenience of the ready referent.
"In this view of the matter, the giving of a notice under Section 12 is an imperative provision of law and read with the proviso to section 18 it becomes obligatory upon the Collector to give notice of the making of the award within such time as would leave enough respite to a person to file an application under section 18 within a period of six months from the date of the making of the award. If such a notice is not given it would be a incompliance with an obligatory part of the statute and the result wdB be that the award given by the Collector would be vitiated and action under section 11 shall have to be taken afresh so that a new award be made".
10. The question of limitation under Land Acquisition Act came up for consideration in various authorities. It would be expedient to consider some of them. In A.I.R. 1943 Mad-327. It was observed at Page 330 as under:- "Under Section 18 any person interested could make an application if the person making 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 or in other cases, within six weeks of the receipt of the notice from the Collector under S.12 (2), of within six months from the date of the Collector's award, whichever period shall first expire".
In A.I.R. 1960 AJ&K 80 Para 13. It was observed as under:- "Although in strict law there is sufficient reason to set aside the entire land acquisition proceedings, the petitioner's learned Counsel, in view of the fact that very costly buildings have already been reared on the land, did not press for quashing of the entire proceedings. Towards the end of the arguments, he unambiguoualy stated that he wanted only a reference to be made by the Collector to the Court for determination of the quantum of compensation. No notice of the award was given by the Collector to the petitioners who were the owners of the property acquired. Nor were the petitioners present in person before the Collector at any time in the course of the proceedings; nor were they represented before the Collector at the time when he made his award or at any time previous to that. In the circumstances, as the petitioners did not know of the making of the awards, they could not have been expected to apply under S. 18 within six months from the date of the Collector's award.In the circumstances of this case, a true and proper construction of the provisions of S.18 will be to require the petitioners to apply within six months from the date of their knowledge of the Collector's award. Although they made an application within six months after they came to know of the making of the award, it was rejected on the superficial ground of being time-barred. This was not a correct view to take when the law expressly provided that an owner of property is entitled to ask the Collector to refer the matter to a court, and attempt should be made to consture that provision of law realistically after taking into consideration the fact that the time- limit prescribed in that provision pre-supposes the knowledge of the passing of the award on the part of the applicant".
In P.L.D. 1973 Note 124CLahorel. It was observed at page 192 as under:- "The law of limitation requires strict interpretation when it is applied against an admitted existing right of a citizen. Under sub clause (b) of section 18(2) the limitation shall be six weeks only if there is proof of "the receipt of notice from the Collector under Section 12, subsection (2)". There is nothing in sub-clause(b) to indicate that knowledge obtained in any other manner would also be covered by the first part of that clause or could be treated as substitute of the requirement provided therein for a notice under section 12 (2). Had it been the intention of the Legislature in such cases also to fix limitation of six weeks, then the acquisition of knowledge of the award by a party would have been specifically mentioned as another alternative in sub-clause (b) or another subclause would have been added".12. From the above survey of the case-law it is evident that the question of limitation for making reference under Section 18 of the Land Acquisition Act is a mixed question of law and facts. It cannot be decided in isolation keeping in view only section 18 of the Land Acquisition Act.
The priod of limitation for filing application for reference under Section 18 is to be counted in the light of proceedings taken under section 12 of the Land Acquisition Act. It is further evident that the land Acquisition Act has prescribed three different period of limitation. Six weeks limitation from the date of the award, if the applicant was present either personally or though his recognized agent at the time when the award was made. In case the applicant was not present either personally or through his agent, then a six weeks time from the date of the notice received under Section 12 sub section (2) or if no notice was served, then six months from the date of the award.
The learned District Judge in this case, due to erroneous assumption of material question of law with regard to limitation, declared the reference filed by the appellant barred by limitation, whereas it was filed well within limitation because the period of limitation in this case was thus six months and not six weeks as held by the learned District Judge Muzaffarabad.
13. For the view I have taken in the matter, I set aside the judgment of the learned District Judge Muzaffarabad dated 16-5-1989 and remand the case back to the District Judge Muzaffarabad to proceed with the reference in accordance with law. The costs shall follow the result. The parties who are presentin the Court are directed to appear before the learned District Judge Muzaffarabad on 10-5-1990.