SHAFIUR RAHMAN, J: --In a large number of appeals, for the present all of them from the North- West Frontier Province and against the judgment/orders of the Peshawar High Court, Circuit Bench, Abbottabad, the question of law requiring examination is whether the Central/Federal Government, its departments, a local authority, a company or an institution which is beneficiary of land acquired, is competent to file an appeal under section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) against the decision of the Court on a Reference under section 18 of the Act. This question was examined by this Court and answered in the negative for the first time in the case of Pir Khan through his legal heirs v. Military Estate Officer, Abbottabad and others PLD 1987 SC 485 followed by decisions in Behram Khan and 54 others v. Military Estate Officer and 2 others 1988 SCM R 1160 and Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East), Karachi and others 1989 SCM R 812.
2. In the impugned judgments of the High Court, the appeals were filed by the Central/Federal Government, its departments or the institutions. These Regular First Appeals were filed in the Peshawar High Court in the years 1985--86. The High Court without examining the locus standi of the appellants to file such appeals, accepted them and reduced the compensation awarded by the referee Court. Hence, the erstwhile owners interested in the compensation had come to this Court challenging the very competence and maintainability of those appeals.
3. In questioning the earlier decisions of this Court and in resisting these appeals, the learned Deputy Attorney-General has advanced three separate grounds. The commanding position of the Central Government, and its direct interest in the acquired land has been emphasised by reference to Articles 149, 152 and 173 of the Constitution. Article 149 empowers the Federal Government to give directions to the Provincial Government so as to protect and advance its own executive authority in discharging its responsibilities under the Constitution and the laws, obliging thereby the Provincial Government to comply with such directions. Article 152 empowers the Federation to require the Province to acquire the land required by it at its expense. Article 173 of the Constitution provides that on such acquisition the land shall vest in the Federal Government. On the basis of these provisions of the Constitution, the learned Deputy Attorney-General contended, the Federal Government has a direct interest in the property sought to be acquired, and the Federal Government necessarily becomes "person interested" as defined in section 3(b) of the Act and as explained in Himalaya Tiles and Marble (P.) Ltd. v. Francis Victor Coutinho (dead) by LRs AIR 1980 SC 1118. So it is entitled to file a reference under section 18 and appeal under section 54 of the Act.
4. The second ground taken up is that the Collector and the Provincial Government in complying with the directions of the Federal Government, in taking up proceedings for the acquisition of land under the Act, are mere agents of the Federal Government. Therefore, whatever the agent can within the framework of law do, the principal---the Federal Government, can also do. The right of the Collector and through him of the Provincial Government to be served with notice under section 20 of the Act, to participate in the Reference or to make a Reference and thereafter, if necessary, to file appeal, also, is established from various provisions of the Act. It follows, therefore, that the Federal Government can also do all these acts. In support of this view reliance is placed on the State of Maharashtra Public Works Department v. Bapurao Dnyanoba Chiddarwar and others AIR 1973 Bombay 231.
5. Finally, it was contended by the learned Deputy Attorney-General that in any case, even if the appeals filed in the High Court were not competent, the jurisdiction of the High Court to deal with those appeals as Civil Revisions was not lacking and the impugned decisions can be protected on that view of the matter. Reliance has been placed on the cases of Makhan Lal and others v, Secretary of State AIR 1934 Allahabad 260, Laxmanrao alias Baburao Shridharrao Deshmukh v.
Collector of Nagpur District AIR 1945 Nagpur 146, Messrs S.M. Rahman & Co. v. Motabar and others PLD 1981 SC 282, Wapda and another v. Additional District Judge, Gujrat and 74 others 1987 Monthly Law Digest 2449---Lahore and Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139.
6. The learned counsels representing the appellants, private land-owners whose land has been acquired supported the law laid down by this Court in Pir Khan's case PLD 1987 SC 485 which holds the field:
7. As the controversy with regard to the locus standi of the appellants before the High Court has been raised in all these appeals, there is no limitation or inhibition in examining the same as is present in exercising review jurisdiction.
8. The constitutional supremacy and pre-eminence of the Federal Government over the Provincial Government in matters governed by Articles 149, 152 and 173 of the Constitution is not in dispute. All the same, these provisions of the Constitution have not the effect of creating of their own force locus standi of the Federal Government in proceedings under the Act relating to acquisition of land at the request and for the purposes of the Federal Government. The amplitude of this power does not, as canvassed, extend to supplanting, substituting or taking over the functioning of the Provincial Government in matters on which power to give directions has been recognised, preserved and where the Provincial Government proceeds to act on such directions in accordance with and subject to the law of the land. The locus standi of the Federal Government should be looked for not in these Constitutional provisions but in the provisions of the Act.
9. Reliance on the decision of Indian Supreme Court in the case of Himalaya Tiles and Marble (P.)
Ltd. AIR 1980 SC 1118 is not out of place. It considers all beneficiaries of land acquisition proceedings to be interested persons under section 3(b) of the Act and for that reason entitled to notice under section 20, to make a Reference under section 18 and one may say to file an appeal under section 54 of the Act. This decision of the Supreme Court was examined in depth in at least four decisions of Indian High Courts, followed by another decision of the Indian Supreme Court.
10. The first such case coming to the High Court in India was of National Thermal Power Corpn. v.
Raghunath Pd. And others AIR 1981 Allahabad 344 where, on the basis of the decision in the case of Himalaya Tiles and Marble (P.) Ltd. AIR 1980 SC 1118, the following conclusion was drawn:-- 7 These decisions make it amply clear that the company for whose benefit land acquisition proceedings are taken is an interested person, entitled to take part in proceedings before the District Judge and to file appeal before the High Court against judgment of the District Judge."
11. Another such case is of M/s. Indo Swiss Time Limited v. Umrao and others AIR 1981 Punjab and Haryana 213 where the following conclusion was drawn:--- 'On a careful consideration of the respective contentions of the learned counsel for the parties, in the light of various decisions cited by them, it f transpires that the view taken in the judgment of the Supreme Court m Himalaya Tiles and Marbles (P.) Ltd. AIR 1980 SC 1118 (Supra), on which reliance has been placed by Mr. Sarin, is in conflict with the view taken in the earlier judgment in Municipal Corporation of the City of Ahmedabad's case (1970) 1 SCWR 183 (supra). As observed by my Lord the Chief Justice, a perusal of the two judgments plainly indicates that there is a direct conflict on the point which needs our decision. Both the judgments have been rendered by a Bench consisting of two Hon'ble Judges and cannot possibly be reconciled. In this situation, a somewhat interesting, though tricky question arises for determination, i.e., when there is a direct conflict between the two decisions of the Supreme Court rendered by co-equal Benches, which of them should be followed by the. High Courts and the Courts below.
On this question, my Lord the Chief Justice in his elaborate judgment has held that the Courts may follow the judgment which appears to them to state the law accurately and that mere incidence of time whether the judgments of the co-equal Benches of the Superior Court are earlier or later is a consideration which appears to be hardly relevant. I have also given my thoughtful consideration to the entire matter and find myself in respectful agreement with the aforesaid observations of my Lord the Chief Justice.
Keeping in view these observations, the next question that arises for determination is as to which out of the two judgments of the Supreme Court should be followed for deciding the point in issue.
After giving my thoughtful consideration to the entire matter, I have not been able to persuade myself to agree with my Lord the Chief Justice in following the view enunciated in Himalaya Tiles and Marbles (P.) Ltd. AIR 1980 SC 1118 (supra), and I would with respect prefer to follow the view propounded in Municipal Corporation of the City of Ahmedabad's case (1970) 1 SCWR 183 (supra), wherein it has been observed thus ........
12. The third case coming up before the High Court in India was that of the Union of India v.
Kashappa and others AIR 1982 Karnataka 322. This is of great relevance to the facts of the present case as in that case too, the right of the Federal Government to appeal as `person interested' in the acquisition was in issue as in these appeals before us. The view taken in that case was as hereunder:- "That the Supreme Court came to the conclusion that the case of the company and the local authority fell under clause (c) is very significant. If the contention of Shri Basavaraju is right, namely, that every person for whose benefit the land is acquired is a person interested in the reference and therefore entitled to be notified under clause (b) of section 20, the Supreme Court would have held that the cases of the company and the local authority dealt with by them would have fallen under clause (b). But the Supreme Court came to the conclusion that their cases fell under clause (c). If their cases could fall under clause (b) the Supreme Court would have said so.
All persons for whose benefit the land is acquired would fall only under clause (c) except when the land is acquired for the Government. The interest of the Government is expected to be taken care of by issue of notice to the Deputy Commissioner under clause (a) of section 20 of the Act. We have therefore no hesitation in taking the view that the Central Government for whom the land in question has been acquired cannot be regarded as a person interested in the reference contemplated by clause (b) of S. 20 of the Act. As already stated, the interest of the Central Government was expected to be protected by giving an opportunity to the Deputy Commissioner of participating in the proceedings."
13. The fourth case coming to the High Court in India was of Gujrat Housing Board, Ahmedabad v.
Nagajibhai Laxmanbhai and others AIR 1986 Gujrat 81 where the conflicting views of the Supreme Court in Himalaya Tiles and Marbles (P.) Ltd. AIR 1980 SC 1118 and the earlier decision were considered and it was held that later decision of the Supreme Court would prevail in case of conflict with the earlier decision.
14. In the case of Santosh Kumar and others v. Central Warehousing Corporation and another AIR 1986 SC 1164, the Supreme Court made no reference to its earlier decision in Himalaya Tiles and Marbles (P.) Ltd. AIR 1980 SC 1118 but held as hereunder:--- "In our view there cannot be any possible doubt that the scheme of the Act is that, apart from fraud, corruption or collusion, the amount of compensation awarded by the Collector under S.11 of the Act may not be questioned in any proceeding either by the Government or by the Company or Local Authority at whose instance the acquisition is made. Section 50(2) and S. 25 lead to that inevitable conclusion. Surely what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Art. 226. Art.226 is not meant to avoid or circumvent the processes of the law and the provisions of the statute. When S.50(2) expressly bars the company or local authority at whose instance the acquisition is made from demanding a reference under S.18 of the Act, notwithstanding that such, company or local authority may be allowed to adduce evidence before the Collector, and when S.25 expressly prohibits the Court from reducing the amount of compensation while dealing with the reference under S.18, it is, clearly not permissible for the company or local authority to invoke the jurisdiction of the High Court under Art. 226 to challenge the amount of compensation awarded by the Collector and to have it reduced."
15. In Pakistan, this question was examined earlier by the Dacca High Court in the case of the Pabna Electric Supply Co., Ltd. v. Kaliprashad Bhattacharyya and another PLD 1960 Dacca 461, where the Court on the basis of decisions in the Municipal Corporation of Pabna v. Jogendra Narain Raikut and others 13 Calcutta Weekly Notes 116 and The Comilla Electric Supply, Ltd., v. Messrs East Bengal Bank Limited and others 43 Calcutta Weekly Notes 973, came to the conclusion as hereunder:- " .....We find that the provisions of section 50 and section 41 of the Act will indicate that although the person for whose benefit the land is acquired is entitled to appear and adduce evidence for the purpose of determination of compensation, he has no right to ask for a Reference under section 18 of the Act and much less has he a right to prefer an appeal against a decision of the District Judge made upon a Reference under section 18 of the Act:'
16. The relationship of principal and agent as between Federal Government and the Provincial Government on the basis of the Constitutional provisions or on I the basis of section 3(b) of the Act does not come into existence. Such a relationship exists between the Provincial Government and the Collector and this fact was taken note of in the case of Ezra v. Secretary of State for India (1903)
ILR 30 Cal. 36, approved by the Privy Council in (1W5) 32 ILR Cal. 605 and considered in N. Bommon Bchram and another v. The Government of Mysore and others AIR 1970 Mysore 89 and the State of Maharashtra (Public Works Department) v. Bapurao Dnyanoba Chiddarwar and others AIR 1973 Bom. 231. The Collector acquiring the property on behalf of the Provincial Government has been held in these decisions to be exercising an executive authority and an administrative power and in doing so acting as an agent of the Provincial Government. The same principle cannot be extended to make the Provincial Government an agent of the Federal Government in the matter or the Collector as agent of the Federal Government so as to clothe the Federal Government with an authority not otherwise possessed by it within the framework of the law. Neither section 18 nor section 50 of the Land Acquisition Act confer a right of reference either on the company or on the local authority for whose benefit the land is being acquired.
17. The third contention of the learned Deputy Attorney-General that in the absence of right of appeal to the Federal Government or its acquiring department, the appeals filed in the High Court could be treated as Civil Revisions and on that account the decisions given by the High Court could be protected as within jurisdiction, also cannot prevail because the order against which the revision is said to be competent is an appealable order and in view of our decision in S. Azizul Hasan and another v. Malik Ghulam Muhammad 1971 SCM R 123 and Muhammad Ibrahim and another v. Group Captain Salehuddin and others 1987 SCM R 218 a revision would not be competent, the order being otherwise appealable.
18. Coming to the statutory provisions on the subject, an examination of the Act, as originally framed, shows that (i) clause (b) of section 3 defining the interested person; (ii) section 20 prescribing a notice after a reference under section 18 of the Act has been lodged; (iii) section 50 with regard to the liability of a local authority or a company and their right to participate in the proceedings; and (iv) section 54 regarding appeals in proceedings before Court remained unchanged after independence except for certain special laws like the Soil Reclamation Act etc. In the Punjab which is not relevant. These sections [section 3(b), 20, 50 and 54 of the Land Acquisition Act---hereinafter referred to as the Act] arc reproduced hereunder:- "3(b). The expression "person interested" includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an casement affecting the land."
20. Service of notice.---The Court shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely:-
(a) the applicant;
(b) all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and
(c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector.
"50. Acquisition of land at cost of a local authority or Company.---(1) Where the provisions of this Act are put in force for the purpose of acquiring lard at the cost of any fund controlled or managed by a local authority or 4 of any Company, the charges of and incidental to such acquisition shall be defrayed from or by such fund or Company.
(2) In any proceeding held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation: Provided that no such local authority or Company shall be entitled to demand a reference under section 18." .
"54. Appeals in proceedings before Court.---Subject to provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the Award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908 and in Order XLV thereof,"
Note: This section 54 was substituted by section 3 of the Land Acquisition (Amendment) Act, 1921 (X of 1921), for the original section.
19. There have taken place very many amendments in section 18 of the Act resulting in consequential amendments. How these amendments and their repeal has taken place, and their effect, is very relevant and instructive for the purposes of these proceedings: It was the Province of Punjab which by Act XII of 1954 added subsection (3) to section 18 of the Act in the following words:- ---- .
"(3) Notwithstanding anything to the contrary contained in section 21, the Provincial Government or a local authority or a company for which land is being acquired may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award, provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for enquiry into and determination of the objection against the award."
The same Act (Act XII of 1954) also introduced a new section (section 22A) in the following words:-- -- "22-A. Cross objection.---The Provincial Government, or a local authority or a company for which land is being acquired may lodge a cross objection to the objection made by any person interested and the Court may reduce the amount awarded by the Collector if it considers it just and proper."
President's Act IV of 1957 modified subsection (3) to section 18 of the Act "'f introduced by the Punjab Act XII of 1954 so as to delete from therein "or a local authority or a company for which land is being acquired" leaving only the Provincial Government in the field. What was accomplished by President's Act IV of 1957 was repeated by the West Pakistan Act XXVII of 1958. By Ordinance No.XIV of 1968, for the areas of Punjab, subsection (3) to section 18 and section 22-A were added as hereunder:- "(3) Notwithstanding anything to the contrary contained in section 21, the Provincial Government may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award; provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for enquiry into and determination of the objection against the award.
22-A. Cross Objection.---The Provincial Government, or a local authority or a company for which land is being acquired, may lodge a cross objection to the objection made by any person interested and the Court may reduce the amount awarded by the Collector if it considers it just and proper."
Then, West Pakistan Ordinance XLIX of 1969 enacted for the whole of West Pakistan subsection (3) to section 18 followed by an amendment in section 20 and introduced section 22-A, in the following words:----- "(3) Notwithstanding anything to the contrary contained in section 21, the Provincial Government may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award; provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for enquiry into and determination of the objection against the award.
In section 20 of the said Act, in clause (c), between the word "Collector" and the full-stop at the end, the words and commas "and the Department of Government, local authority or Company, as the case may be, for which land is being acquired" shall be inserted."
"22-A. Cross Objection.---The Provincial Government, or a local authority or a company for which land is being acquired, may lodge a cross objection to the objection made by any person interested and the Court may reduce the amount awarded by the Collector if it considers it just and proper."
A consequential amendment to give effect to the right of the Provincial Government to make a Reference was also made in section 31 of the Act by this Ordinance XLIX of 1969. This Ordinance XLIX of 1969 was made into West Pakistan Act III of 1969 and the same was repealed by Ordinance No.VI of 1971. The language used was somewhat unusual as hereunder:---- "Repeal of W.P.Act. IIIof 1969.--- The Land Acquisition (West Pakistan Amendment) Act, 1969, is hereby repealed and shall be deemed never to have been enacted, and the amendments effected thereby in the Land Acquisition Act, 1894 (Act 1 of 1894), shall be deemed never to have been effected:"
In the N.-W.F.P., Ordinance No.XI of 1972 was enforced which omitted subsection (3) of section 18, mandating the abatement of any pending Reference made by the Provincial Government, and so was an appeal by or on behalf of the Provincial Government pending in any High Court or Supreme Court on a Reference made by tic Provincial Government under subsection (3) of section 18 to abate forthwith. It was in 1978 that in the N.-W.F.P. By Ordinance XVI-of 1978 a subsection (4) was added to section 18 in the following words:---- "Notwithstanding anything to the contrary contained in section 21, the Provincial Government may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award: Provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for enquiry and determination of the objection against the award."
20. In the N.-W.F.P. The right of the Provincial Government and of the Provincial Government alone, apart from the affected land-owners, has been recognized in the matter of filing a Reference, which right has been denied by express words of section 50(2) of the Act to the local authority or company for whose benefit the acquisition is made. Since 1978, in the Province of N.-W.F.P., a right of Reference .And consequently of appeal is available to the Provincial Government as the expression Government in the Provincial statute would imply a `Provincial Government' and not the `Federal Government'.
21. In view of the discussion above, the appeals are accepted, the impugned' judgments/orders of the High Court are set aside and appeals filed by the Federal Government, its departments or local authority for whose benefit the land was acquired are held to have been filed by persons having no right to appeal to the High Court and all such appeals in the High Court are hereby dismissed with no order as to costs.