' MIAN ALLAH NAWAZ, J.---These two Regular First Appeals bearing Nos.35 and 39 of 1988 are inter - connected. They are by the Province of Punjab, and Pakistan Atomic Energy Commission (hereinafter referred to as the Commission) and under section 54 of the Land Acquisition Act, 1894 (hereinafter described as the Act) from the award dated 13-12-1987 passed by the Senior Civil Judge, Dera Ghazi Khan. Both the appeals involve examination of common questions of law and facts hence are being disposed of by a single judgment.
2. A few relevant facts for the disposal of these appeals are; that the area measuring 17 Acres and 7 Marlas, situated in the Revenue-estate Gadai Gharbi, Tehsil and District Dera Ghazi Khan was acquired by Government of Punjab for the requirement of Commission. The acquisition proceedings were completed under the Act. The possession of land acquired was given to the Commission on 19-3-1980. The Land Acquisition Collector by award dated 6-7-1981 assessed the compensation at the rate of Rs,8,016 per acre alongwith 15% as compulsory acquisition charges and 8% interest from 19-31980 to 5-7-1981.
3. Feeling aggrieved, the owners namely, Shah Rasul, Maqbool Ahmad, Noor Muhammad, Muhammad Hassan, Jiwan, Muhammad Din, Adbullah, Muhammad Shafi, Mst. Sairan, Ghulam Sarwar and Muhammad Boota (herein respondents Nos.1 to 11) in F.RA. No,35/88 and Mian Shah Rasul, Mian Maqbool Ahmad, Col. Ch. Ashraf and Nawab All Shah (herein respondents Nos.1 to 4) in R.FA. No,39/88, submitted applications to the Land Acquisition Collector for claiming reference to Court under section 18 of the Act. The Acquisition Collector sent their references to the Court of Senior Civil Judge, Dera Ghazi Khan.
4. It is pertinent to note that the Reference Court proceeded without issuing notice to the Collector.
The Commission entered appearance, submitted written reply to the Reference, taking up the position that the award rendered by the Land Acquisition Collector was just. The necessary issues were framed. From the record it appears that these two references were heard alongwith number of other references. The evidence was recorded in one reference without making the order of consolidation of references. The learned Reference Court by means of award dated 13-12-1987 enhanced the compensation from 8,016 to 1,20,000 per acre.
5. In disputing the correctness of impugned award the learned counsel for the appellant, Collector raised the following points:- ' Firstly; The Collector was not impleaded as party to the Reference by applicant. The Reference Court started the proceedings without issuing notice to the Collector. According to the learned counsel, the proceedings before the Court were, therefore, null and void on account of being in contravention of sub-clause (c) of section 20 of the Act.
' Secondly; That the Reference Court neither recorded the evidence of the parties nor made any order of consolidation of references. He, in fact, placed on record the photo copies of evidence recorded in some other references. According to the learned counsel this was not permissible and so the proceedings before the Referee Court were destitute of legal efficacy.
' Thirdly; That the respondents had received the compensation under the award of the Collector without any protest and so respondents were legally estopped to make an application for reference under section 18 of the Act.
' Fourthly; The finding of the Reference Court was actually contradictory and was based upon conjectures and surmises. These findings were perverse and fanciful.
6. On the contrary, Muhammad Younas Bhatti, learned counsel appearing on behalf of the respondents supported the impugned award. While replying the point urged by the learned counsel for appellant, he raised preliminary objection regarding the maintainability of these appeals on the ground that the award of the Reference Court was not an independent award but was merely substitutive one. It was added that by virtue of subsection (2) of section 50 of the Act, the award rendered by the Court had become final and cannot be challenged except by the parties" who were expressly conferred the right of appeal. According to him neither the Government of Punjab nor the Commission had a right to file appeal under section 54 of the Act.
Reliance was placed on Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad and others (PLD 1987 SC 485), Pakistan Steel Mills Corporatioon Limited and others v. Deputy Commissioner (East), Karachi and others (1989 SCMR 812), WAPDA v. Muhammad Farid and others (1990 SCMR 98) and Behram Khan and 54 others v. Military Estate Officer and 2 others (1988 SCMR 1160).
8. In the second place it was contended that the finding of the Court below was based upon material on record and was in consonance with the well- known principles of determination of compensation under section 23 of the Act. As regards the notice to Collector, it was asserted that the land was required for the benefit of Commission. The Collector, therefore, was neither necessary party nor proper party. Therefore, the circumstances of not giving notice to the Collector did not have any vitiative effect on the impugned award. No other point was urged.
9. We have heard the learned counsel for the parties at length and perused the record with the assistance of the parties. The facts of the case are not in dispute. It is uncontested that the respondents submitted application under section 18 of the Act, claiming reference against the compensation determined by the Land Acquisition Collector; that the Senior Civil Judge, Dera Ghazi Khan proceeded with the reference without giving notice to the Collector; that the Collector, in this background had not submitted reply to reference, that the record of the referee-Court indicates that the photostat copies of the evidence recorded in some other references were placed on the record without the consent of the parties.
10. Having set down the facts of the case and contentions of the parties we now proceed to deal with the legal contentions raised by both the parties, in regard the validity of award on account of factum of not sending of notice to the Collector and the competency of appeal by the Government of the Punjab, and the Commission. We propose to take up the objection to the maintainability of appeal. The contention in brief, is that the award/decision made by the Referee Court is, in fact, substitutive of award of Land Acquisition Collector, and so under section 50 of the Act, had become final. Neither the Commission nor Government of the Punjab has any right of appeal under section 54 of the Act against it.
11. In order to appreciate this contention of the parties, it will be advantageous to examine some relevant amendments brought about by the Land Acquisition (West Pakistan Amendment)
Ordinance, 1969 (Ordinance No,XLIX of 1969), namely the newly-added subsection (5) of section 9, addition in section 11, proviso to subsection (2) of section 18, the amendment in clause (c) of section 20 and addition of new section 22-A, which are as follows:- "Subjection (5) of section 9.--The Collector shall also serve notice of the enquiry to be held under section 11 (such notice not being less than fifteen days prior to the date fixed under subsection (2) for determination of claims and objections, on the Department of Government, local authoriry or company, as the case may be, for which land is being acquired, and require it to depute a duly authorised representative to attend the inquiry on its behalf for the purpose of making objections (if any) to the measurement of land, claims to any interest in the land or the amount of any compensation. Such authorised representative shall be party to the proceedings."
"Addition in section 11.--Between the words "any person interested" and the words "has stated" the words and commas "and a Department of Government, a local authority, or a company as the case may be", shall be inserted."
"Proviso to subsection (2) of section 18.--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 prima facie case for inquiry into and determination of the objection against the award."
"Amendment in clause (c) of section 20.--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."
"Section 22-A.--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."
' It is clear from the proviso to subsection (2) of section 18 of the Act that the Provincial Government was given a right to make a reference to the Court under section 18 ibid, within a period of six months from the date of award by the Land Acquisition Collector. Clause (c) of section 20 of the Act, casts a duty upon the Court to serve notice of reference under section 18 of the Act on Department of Government, a local authority, or a company and Collector. It may be further noticed that the newly-added section 22-A gives a right to the Provincial Government or a local authority or a company, to file cross-objection in respect of reference sent to the Court.
12. The aforenoted unamended provisions of law had come into consideration before the superior judiciary of Sub-Continent in pre-Partition days. There was divergence of opinion on the question whether the Government, Collector, Local authority or the Company for the benefit of which the land was acquired, were necessary party to the reference under section 18 and whether they had a right of appeal under section 54 of the Act. The weight of judicial authority in the cases pertaining to pre-Partition era is in favour of rule that neither the local authority nor the beneficiary company had a right of appeal against the award/decision by the Court under section 54 of the Act. At this stage, some of the cases decided in pre-independent period may be noticed:--
(1) Municipal Corporation of Pabna v. Jegendra Narain Baikut reported in 41 C. 382, in which, the Calcutta High Court held that under section 50 of the Act, a company or a local authority for whose benefit the land has been acquired, may appear and watch the proceedings or it may assist the Secretary of State, but it has no right to ask for a reference under section 18 of the Act or to file an appeal against the award passed by the District Judge in such a reference.
(ii) Faqir Chand v. Municipal Committee, Hazara reported in (1913) 47 PR 225, In the above case, the question was, whether an appeal filed by the owner of the land against the award given by the District Judge under section 18 of the Act without impleading the Secretary of State of India, was competent, though the Municipal Committee, Hamra for whose benefit the land was acquired was made a party. While holding that the appeal was not competent, it was also held by the erstwhile Chief Court of Punjab that the Municipal Committee was stranger to the proceedings under section 18 of the Act.
(iii) Collector and Chairman, District Board, Gujranwala v. Hira Nand reported in AIR 1929 Lah. 10, in which the counsel appearing for the Chairman, District Board, Gujranwala for whose benefit the land was acquired conceded that the Board was not competent to file appeal against an award given by the District Judge under section 18 of the Act.
(iv) Nihal Chand and others v. District Board, Mianwali reported in AIR 1936 Lah. 564, in which case also, the view found favour with the Lahore High Court was that an appeal by a local authority against an award given by the District Judge under section 18 of the Act was not competent. It will now be appropriate to examine some cases of post-independence period:-- "(i) The Pabna Electric Supply Co. Ltd. v. Kaliprashad Bhattacharyya and another reported in PLD 1960 Dacca 461, in which, a D.B. Of the Dacca High Court held that the appellant-Company for whose benefit the land was acquired had no right to ask for a reference under section 18 of the Act or to file an appeal against a decision of the District Judge made upon such reference. The reliance was placed on the case of Municipal Corporation of Pabna v. Jogendra Narain Baikut and others reported in 13 C.W.N. 116 and on the case of the Commilla Electric Supply Ltd. v. Messrs East Bengal Bank Ltd. And others reported in 43 C.W.N.
973.
(ii) Sindh Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and 4 others reported in PLD 1960 (W.P.)
Kar.
826. In the above case, the question before the Court was whether the award or any order passed under the Act can be challenged through a Constitutional petition. While holding that the petitions were not competent, it was also held that under section 50(2) of the Act, the Court was not bound to issue notice to company or local authority concerned. It was also held that the non-hearing of a party who is not required by law to be served with the notice of proceedings, does not amount to breach of natural justice.
(iii) Kasimbhai and another v. The Deputy Commissioner, Dadu and others reported in PLD 1968 Kar.
126. In the above case, a learned Single Judge of the erstwhile High Court of West Pakistan at Karachi dismissed an applicaiton filed by WAPDA under section 151, C.P.C. For becoming a party to a first appeal arising out of an award given by the District Judge under section 18 of the Act. It was held that the local authority for whose benefit the proceedings were initiated under the Act, had no privity with the owner of the land and, therefore, could not claim to be impleaded as a party.
(iv) WAPDA through its Chairman, Lahore v. Aurangzeb Khan and 17 others reported in PLD 1975 Peshawar 1. In the above case a D.B. After reviewing the case-law and the amendment brought about in 1969 by the Ordinance referred to hereinabove, held that the appeal filed by the WAPDA against the award given by the District Judge under section 18 of the Act was not competent in spite of the above amendment of 1969.
(v) Brigade No,1 Chattar Domel and Garhi Dopatta through Military Estate, Hazara v. Custodian, Evacuee Property and 7 others reported in 1986 MLD 2077, in which a D.B. Of Azad Jammu and Kashmir High Court held that an appeal against the judgment of District Judge passed in a reference under seciton 18 of the Act filed by the appellant for whose benefit the land was acquired, was not competent. It was further held that a local authority or company concerned, for whose benefit the land was to be acquired, was competent to appear and adduce the evidence before the District Judge for the purpose of determination of the amount of compensation but had no right to file an appeal."
13. However, there seems to be a D.B. Case of the Sindh High Court, in which, apparently a contrary view was taken, namely in the case of Mirpur Khas Sugar Mills Limited, Karachi v. Moulvi Muhammad Saleh and 3 others (1979 CLC 7). In the above case the question was, whether an appeal filed by the appellant, a company for whose benefit the land was acquired under the Act, was competent. The controversy, however, was set at rest by the decision of the Supreme Court in Pir Khan's case (PLD 1987 SC 485) which reads as follows:-- "We agree and would add that the order of the Civil Court on reference made to it by the Land Acquisition Collector is not an independent order but merely a substitutive order, whereby the award of the Land Acquisition Collector is substituted by the order of the Civil Court, which order then becomes the award. Since by virtue of subsection (2) of section 50 of the Act, the award made by the Land Acquisition Collector is final and cannot be challenged except by a party which has expressly been conferred the right of appeal hence respondents Nos.1 and 2 who did not have any such right expressly conferred on them, did not have any locus standi to file an appeal. As already observed, no such right is to be assumed on any a priori ground and a right of appeal can be exercised only if it has been expressly conferred on a party by statute. Furthermore, neither the Central Government nor the Military Estate Officer can be deemed to be parties who have been adversely affected by the order of the Civil Court. If the Central Government or the Militiary Estate Officer could get the land in question more cheaply by private negotiations they can refuse to accept the land at the price determined by the Court. They cannot have it both ways. Having chosen to set in motion the special powers given to the Government to acquire land under the Land Acquisition Act for public purposes they are to be confined to those provisions and cannot claim further rights and higher privileges than those provided for under the provisions of the said Act. Since under the provisions of the Act only a special and limited appeal is provided for against the award of the Court, which in the facts and circumstances of this case would be availed of by the Provincial Government nor the Collector chose to file an appeal, the appeal Filed by the Central Government and the Military Estate Officer was indeed an appeal filed by 'strangers' having no locus standi to file it."
' The principle laid down in Pir Khan's case was reiterated by the Supreme Court in Behram Khan and 54 others v. Military Estate Officer and 2 others (1988 SCMR 1160) and Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East) Karachi and others (1989 SCMR 812).
14. We are bound by the rule laid down in Pir Khan's case under Article A 185 of the Constitution of Pakistan. We hold that the Commission, herein appellant No,2, had no locus standi to file appeal against the impugned award.
15. Having concluded that the Commission had no right to file appeal, now we turn to the right of the Province of Punjab to file appeal. This question has not been free from difficulty. It came up for consideration in Fakir Chand and others v. Municipal Committee, Hazro (1913 Punjab Record 225). In this case appeal was filed without impleading the Secretary of State by the owners of the land under section 54 of the Act. The Secretary of State was impleaded as party after the expiry of limitation. The Division Bench dismissed the appeal by holding that the Secretary of State was necessary party to contest the reference and the Secretary of State was implcaded after the efflux of limitation and so the appeal was barred by time.
16. In Land Acquisition Collector-II, v. Hakim Khan (PLD 1976 Peshawar 50), it was held that the appeal filed by the Collector was competent. This rule was followed in Punjab Province v. Umar Daraz etc. 1988 MLD 1900.
17. The question although was not directly under examination in Pir Khan's case yet it was observed that the right of appeal could be availed of by the Provincial Government or the Collector. It will be advantageous to quote the relevant passage from the judgment of his Lordship Mr. Justice. Dr. Nasim Hassan Shah, who delivered the opinion in the aforesaid Pir Khan 's case. This passage runs as follows: "Furthermore, neither the Central Government nor the Military Estate Officer can be deemed to be parties who have been adversely affected by the order of the Civil Court. If the Central Government or the Military Estate Officer could get the land in question more cheaply by private negotiations they can refuse to accept the land at the price determined by the Court. They cannot have it both ways. Having chosen to set in motion the special powers given to the Government to acquire land under the Land Acquisition Act for public purposes they are to be confined to those provisions and cannot claim further rights and higher privileges than those provided for under the provisions of the said Act. Since under the provisions of the Act only a special and limite al is provided for against the award of the Court, which in the facts and circusmtances of this case would be availed of by the Provincial Government or the Collector, no other party, including the appellants herein could avail of a right of appeal. As neither the Provincial Government nor the Collector chose to file an appeal, the appeal filed by the Central Government and the Military Estate Officer was indeed an appeal filed by 'strangers', having no locus standi to file it." (Underlinings are mine).
18. From the examination of Pir Khan's case, Behram Khan's case and Pakistan Steel Mills' case it is quite clear that the Collector, Province of Punjab had a right of appeal under section 54 of the Act.
The contention of the learned counsel for the respondents is accordingly repelled.
19. After disposing of the question regarding maintainability of appeals, now we revert to the last question 'whether the award is invalid on account of being in defiance of clause (c) of section 20 of the Act?, The bare look of this provision, makes it clear that the learned Referee-Court was enjoined to serve a notice of reference to the Collector. The Collector has a pivotal role in the scheme of the Act. He is concerned with the acquisition proceedings from inception to finish. Under clause (c) ibid, the Court is required to give a notice 20.
No, of reference to him. According to our considered opinion the Collector is, , therefore, necessary party. He has a right of appeal under the Act. The Court cannot proceed without Collector's participation. A reference may be made to Faqir Chand and others v. Municipal Committee, Hazro (Punjab Record 1913 page 225). We are in respectful agreement with the view taken in the aforesaid case. We have, therefore, no hesitation in coming to the conclusion that the award on account of being in contravention of clause (c) of section 20, is void and cannot be sustained.
20. There is yet another aspect of the case. The proceedings were conducted by the Court in highly arbitrary and slip-shod manner. These two references were heard alongwith number of other references; no order of consolidation was passed. The photostat copies of the evidence recorded in some other case were inserted in these two cases. These two appeals came up for hearing along with appeals bearing Nos.36/88, 37/88, 40 and 41 of 1988. During the hearing of the case the learned Advocate-General appearing on behalf of the Government of the Punjab with the prior approval of Commission proposed that after taking into consideration the circumstances of the case it was desirable that all the owners be paid compensation at the rate of Rs,40,000 per acre along with compulsory acquisition charges and 8% interest. This proposal was owned by the learned counsel appearing on behalf of the Commission and was agreed to by Sycd Abdul Rauf, Land Manager, Commission who stated that Commission would have no objection if the appeals were adjudicated in accordance with the offer made by the learned Additional Advocate-General.
It is to be noticed that the respondents in these two appeals were only persons who did not accept the offer made by the learned Additional Advocate-General and were heard on merits.
21. We note with anguish that the proceedings before the Referee Court were conducted in such slip-shod manner that even we are not able to assess the material on record and fix the compensation in exercise of our appellate authority under Order 41, R.33, C.P.C.
22. In the light of the foregoing anlysis we are constrained to accept the appeals. We set aside the impugned award/decision of the Reference Court and remand the cases to Senior Civil Judge, Dera Ghazi Khan for decision afresh of these two references, on merits in accordance with law.
' Before parting with order we direct that the Referee-Court shall decide these references within six months of the receipt of the order and shall submit the progress report in these cases to the Deputy Registrar (Judi.) of Lahore High Court, Multan Bench. In view of circumstnaces of this case, we are not inclined to pass any order as to costs.