' ABDUL RAHIM KAZI, J.---The chequred history of the present case is that petitioners own and possess garden land bearing S. No.21/1 and 3, admeasuring 10-26 acres in Deh 75 Nusrat, Taluka and District Nawabshah. The respondent No.3 is said to have published a notification in the Gazette under section 4 of the Land Acquisition Act on 10-4-1983 in respect of the abovementioned land.
The petitioners then filed a civil suit in the Court of Senior Civil Judge, Nawabshah challenging the said notification being Suit No.50/83. In the said suit initially the Court had ordered the status quo to be maintained but subsequently the injunction application was dismissed on 18-7-1983 and the status quo order was vacated. The petitioners then filed Misc. Civil Appeal No.35 of 1983 against the said order but subsequently withdrew the appeal on 11-11-1984. Thereafter the petitioners also withdrew their suit on 18-11-1984. The petitioners then filed C.P. No.680 of 1983 before this Court on 12-9-1983 and by an order passed on 9-1-1984 the parties were directed to maintain the status quo but ultimately on 31-1-1984 the petition was dismissed. However, in the meanwhile respondent No.2 is said to have issued notification under section 6 of the Land Acquisition Act on 12-5-1983 whereby the respondent No.5 was appointed as Land Acquisition Officer who acting as such issued a notice under section 9 of the Land Acquisition Act to the petitioners. The respondent No.5 is then alleged to have passed an award on 6-8-1983 without having jurisdiction and without hearing the petitioners or giving them any notice. It is stated in the memorandum of the petition that for the first time the petitioners acquired the knowledge of the said award in the month of May, 1985 and therefore they moved an application before the Collector for making a reference to the Court, obviously under section 18 of the Land Acquisition Act. It is, however, the case of the petitioners that since no action was taken by the Collector the petitioners issued a reminder to respondent No.5 on 1-9-1985 whereon the respondent No.5 passed the impugned order dated 5-10-1985 rejecting the prayer of the petitioners. Being aggrieved the petitioners have filed this petition with the following prayer:-- ' It is therefore prayed that this Hon'ble Court may be pleased to call for the record and proceedings of the case and after hearing the parties may declare the appointment of respondent No.5 as Land Acquisition Officer to be illegal, void and of no legal effect and consequently all the proceedings held by respondent No.5 in respect of petitioners' land be declared illegal, void and of no legal consequence and in the alternative the respondent No.5 be ordered to refer the matter of compensation in respect of agricultural land bearing S.Nos.21/1 and 3, admeasuring 10-25 acres, Deh 75 Nusrat, Taluka and District Nawabshah to the District Judge, Nawabshah under section 18 of the Land Acquisition Act."
3. The respondents Nos.4 and 5 have contested this petition and filed their objections in the form of preliminary objections and parawise comments wherein they denied the claim of the petitioners and have fully supported the order passed by the respondent No.5. During pendency of this petition on an oral motion of the learned counsel for the petitioners, an order was passed on 5-9- 1989 directing the respondents to deposit the compensation amount in Court. The office report shows that the cheque deposited by the respondents was dis-honoured and the matter was placed in Court for further orders on 20-4-1989. On this date the counsel for the respondent No.4 showed that they had sufficient amount in the Bank and therefore the cheque could not have been dishonoured. However, on this date the Court allowed two days time for deposit of the compensation amount in Court alongwith the markup/interest as ordered earlier and that the said amount was deposited in Court on the very next day. The present petitioner has also moved C.M.A.
429/89 with a prayer that the respondent No.5 be directed to deposit additional amount of 15% per annum under section 28-A of the Act. Another application C.M.A. 277 of 1991 was moved by the respondent No.5 for refund of the amount of the mark up paid by the respondent in the Court.
These two applications were also ordered to be heard alongwith the main petition. We have heard the learned counsel for the parties. It would be appropriate if we take up the main petition first and the Misc. applications thereafter. Accordingly we first take the hearing of the main petition.
4. On the main petition we have heard the arguments of Mr. Jhamatmal Advocate for the petitioners and Mr. Abdul Hameed Khan for the respondents 4 and 5. Learned AA.-G for respondents 1 to 3 then asked for time on the ground that he does not have the case file which is still with Mr. S. Sarfraz Ahmed, now the Additional Advacate-General Sindh at Karachi who had been previously dealing with this matter. This request of the learned AA.-G. is not only highly deplorable but amounts to an attempt to protract the proceedings. If theAA.G. had the intention to ask for adjournment then he should have asked for the same at the earliest and not after we have heard the other advocates at length. It may also be observed that the order-sheet shows that on this ground the learned AA.-G. had asked for adjournment on 21-10-1991 and again on 16-12-1991 when it was specifically ordered by this Court that no further adjournment will be granted.
Accordingly, we have declined to grant time to AA.-G.
5. Learned counsel for the petitioners at the very outset has stated that he would not press the first part of the prayer made in the petition but he would press for the alternate prayer sought in the petition which is to the effect that. respondent No.5 be ordered to refer the matter of compensation to' the District Court Nawabshah under section 18 of the Land Acquisition Act. From this submission of the learned counsel for the petitioners it appeared that all the petitioners now seek by this petition is the reference to' District Judge Nawabshah under section 18 of the Land Acquisition Act.
The learned counsel has placed on record various documents including his first application to the respondent No.5 made on. 26-5-1985 wherein he has made a prayer through his Advocate for reference. The other document placed on record is another application made by the petitioners through the Advocate on 1-9-1985. These two applications show that 26-5-1985 was the date on which the petitioners for the first time moved application for reference under section 18 of the Land Acquisition Act. The impugned order passed by the respondent No.5 on 5-10-1985 shows that he has rejected the above prayer of the petitioners on the ground that the same was barred by limitation as provided in section 18 of the Act, The learned counsel has pressed his submission on the grounds that the requirement of issuance of notice under section 12(2) of the Act was a mandatory requirement and that in the present case no such notice has been issued or served on the present petitioners, therefore the question of limitation in this case would not arise but the petitioners would be entitled to prefer their application for reference within a period of 6 months from the date of knowledge of the award. In order to appreciate the submission of the learned counsel it would be necessary to reproduce the two provisions which read as under:-- "12. Award of Collector when to be final.--(1) Such award shall be filed in the Collector's office and shall except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.
(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made."
"S.18. Reference to Court.--(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken: ' Provided that every such application shall be made--
(a) if the person making it 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;
(b) in other cases, within six weeks of the receipt of the notice from Collector under section 12, subsection (2) or within six months from the date of the Collector's award, whichever period shall first expire.
(3) Notwithstanding anything to the contrary contained in section 21, the Provincial Government may, if it has not accpeted 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 deteremination of the objection against the award."
6. The learned counsel has submitted that mere knowledge of the petitioners to the effect that award has been passed would not be treated as the period to start the limitation of 6 months provided in section 18(2) (b) but it would be the date of service of notice which will be the relevant date and that in this case notice for not having been served, the petitioners would be entitled to file such application within six months from the date of their knowledge. The learned counsel has placed reliance on the cases of :--
(1) Mst. Maryam Bibi v Lahore Improvement Trust (PLD 1973 Note 124 at p.191.
(2) Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore (PLD 1970 Lahore 321).
Mst. Sardar Begum v. Lahore Improvement Trust (PLD 1972 Lahore 458).
(4) Chairman, WAPDA and another v. Faqir Muhammad and another (1986 CLC 192).
7. We have gone through above referred to judgments cited by the learned counsel. In the first case, a Single Bench judgment of Lahore High Court, the point determined was that in case the provisions of section 12(2) read with section 45(3) of the Land Acquisition Act were not complied with, it will not be treated as a proper notice served on the party and also that the bar of limitation in such cases would require strict interpretation when applied against admitted existing right. In the second case the Division Bench of the Lahore High Court had observed that mere affixation of notice on Notice Board of Union Council could not be treated to the sufficient service in absence of any material on record to indicate if any effort was made by the Process Server to serve the notice on the person concerned. In this case their Lordships have also discussed the obligatory and directory provisions. In this case their Lordships had held that the maximum period of 6 months from the date of award would be available to the applicants for making reference under section 18 where the notice was served after four and half months of making award. In the third case of Mst.
Sardar Begum it was observed by a Division Bench of Lahore High Court that adequate remedy for a petitioner in case where his remedy under section 18 of Land Acquisition Act had become time barred would be to seek remedy through a writ petition as provisions of section 5 of the Limitation Act were not applicable. In the fourth case of Chairman, WAPDA Lahore a Division Bench of Punjab High Court had set aside the order made by the Collector and remanded the case to him with the direction to deem the objection petition as pending for the reasons that the authority had exercised the appellate powers which did not vest by law.
8. A careful scrutiny of the facts of the present case would show that the same are somewhat different from those as involved in cases referred to above. In the present case it is an admitted position that the petitioner had first filed civil suit and after his application for grant of injunction was rejected he also filed a Civil Misc. Appeal but subsequently on 11th and 18th of November 1984 he had withdrawn both. Thereafter he approached this Court in C.P. No.680/83 wherein an order of maintaining status quo was passed on 9-1-1984 but ultimately the Constitutional petition was dismissed by an order passed on 31-1-1984. It would be appropriate to reproduce the said order which has been placed on record and which reads as under:-- "31-1-1984. Mr. S. Rashid Ahmed, Advocate Mr. Saeed A. Shaikh, Advocate-General alongwith Mr. Arshad Noor Khan, Advocate.
' By notifications dated 10-4-1983 and 12-5-1983 petitioners' lands have been acquired under the Land Acquisition Act. The petitioners have challenged the acquisition proceedings by this petition filed under Article 9 of P.C.O., 1981. Mr. Rashid concedes that alternate remedy by way of suit is available to the petitioners. Mr. Arshad Noor Khan, Advocate has pointed out that in fact the petitioners have filed a suit being Suit No.15/83 in the Court of learned Senior Civil Judge, Nawabshah, which is still pending. It is, therefore, clear that the petitioners have already availed of the alternate remedy. We regret to say that the petitioners have suppressed this fact in this petition. For all these reasons we dismiss this petition in limine. Sd. NAIMUDDIN, JUDGE Sd. KA. GHANI, JUDGE."
9. This order shows that the petitioners did not approach the Court with the clean hands and had suppressed material facts. It is pointed out by Mr. Abdul Hameed Khan the learned counsel for the respondents Nos.4 and 5 that during the pendency of this petition. C.P. No.680/83) comments were called which were filed by the said respondents in the Court and alongwith the comments a copy of award was also filed. Mr. Abdul Hameed Khan has further submitted that the said copy of comments and award was also delivered' to the present petitioners and from this fact it can be safely assumed that before 31-1-1984 the date on which C.P. No.680/83 was dismissed, the present petitioners had acquired the knowledge of the award. Mr. Abdul Hameed Khan has further submitted that even in the present petition the petitioners have suppressed this fact and therefore they have not come to the Court with clean hands. A reference to para. 12 of the memorandum of the petition shows that the contention of the petitioners is "that the petitioners had the knowledge of the award for the first time in the month of May 1985, (underlining is by us) petitioners, therefore made an application to the respondent No.3 for making reference to the Court". This assertion of the petitioners goes to belie the fact that they were served with the copy of award during pendency of the petition before 31-1-1984 which fact is not denied by the learned counsel for the petitioners. He has furhter contended that this is a clear case of deliberate and wilful delay on the part of the petitioners and they would not be entitled to any equitable relief from this Court. He has referred to the case of Ghulam Mohammad v. Government of West Pakistan (PLD 1967 SC 191). In this case their Lordships in the Supreme Court have distinguished between the references made under the two provisions of the Land Acquisition Act i.e. section 18 and section 30. In this case it has been held by their Lordships as under:-- "Under section 18 te reference is of a dispute with regard to the area or the quantum of the compensation or as to the apportionment of the same amongst the persons interested. This reference is strictly limited to the above matters, whereas under section 30 the reference may be made if a dispute arises as to the method of apportionment of the compensation or as to the persons to whom the same or any part thereof is payable. The subject-matter of this latter reference is limited to dispute purely of title in which the Government is not directly interested. The award of the Collector, as pointed out by Lord Buckmaster in the case of T.B. Ramchandra Rao v.
A.N. Ramchandra Rao and others is an award of compensation to be allowed -and the apportionment among the persons interested in the land of whose claims the Collector has information meaning thereby people whose interests are not in dispute, but where there is a dispute as to who are the persons interested or as to the extent of their interests or as to the nature of their respective interests that would not be for the Collector to decide under section 18, but should be left to the Courts to adjudicate upon under section 30.
' The fact that admittedly no notice of the filing of the award was served upon the appellant under section 12(2) of the Act is; in no way, relevant for the purpose of deciding this controversy as to the time within which the objection should be filed for, under section 18, proviso (b), it would appear that if notice is served the period of limitation is only six weeks from the date of the service of the notice but in other cases six months from the date of Collector's award. This proviso fixes a special period of limitation and since the Land Acquisition Act does not make the provisions of the Limitation Act applicable it-would appear that in the same case of an objecion under section 18 the maximum period allowed is six months from the date of the making of the award in accordance with section 11.
' I am also inclined to agree with the view taken by the Calcutta High Court in the case of Solomn that the award must, in order to be a complete award, contain a formal declaration with regard to all the matters referred to in section 11 and be signed by the Collector. But even accepting this view I find myself unable to agree that in the present case the award made by the Collector in June 1958, was not in every way final ,in accordance with the provisions of section 11. It specified the area to be acquired, it specified the rate of the compensation payable and also made the apportionment, but since it did not accept the title of the appellant of whose interest it was duly made aware by the entry in the revenue record it referred the question of the appellant's title to the landlord and to receive the compensation to the Court under section 30. The award was, therefore, complete in every way and it could not be challenged after the expiry of six months from that date.
The argument that the appellant would have had no locus standi to object to the award until his title was determined is clearly untenable, for, under the definition given in section 3 he was entitled to be treated as a person interested even if he merely claimed an interest in the compensation. In any event, from the date the mutation in his favour was sanctioned in 1959 his right to be a person interested could not be possibly disputed. The Collector and the High Court were, therefore, in my opinion, right in holding that the appellant's objection filed in December 1962, was well out of time.
I also find it difficult to accept that the appellant was not aware of the award that had been made.
At any rate. from the date when the Court of Civil Judge gave him notice to appear in 1961 he was certainly aware of the award. He did not file this objection even within six months of this date.
(Underlining is done by us)
' For the reasons given above I am of the view that this appeal must fail and would accordingly, dismiss the same but would make no order as to costs."
' In the other case of Gul Zaman and another v Collector, Land Acquisition and others (PLD 1984 Pesh. 35), similar view has been taken by the learned Division Bench of Peshawar High Court. In this case it has also been observed that it is within the exclusive power of the Collector to give decision on question of limitation within his jurisdiction. In the above case of Peshawar High Court reliance has been placed on the case of Collector, Karachi v. Fida Hussain Muhammad Ali.
10. From. the above discussion it can safely be assumed that the petitioners had the knowledge of this award at least on the date when they were served with copy of the award alongwith the comments through their advocate in C.P. No.680 of 1983 at least before 31-1-1984 and yet they slept over the same and preferred their application for reference under section 18 for the first time on 26- 5-1985. This not only shows the same being beyond a period of six months as provided in clause
(b) of subsection (2) of section 18 but also goes to belie the contentions of the petitioner as made in para. 12 of the petition. A plane reading of the above provisions of sub-clause (b) of subsection
(2) of section 18 would clearly show that the words "or within six months from the date of the Collector's Award" referred to those cases when no notice under section 12(2) of the Act has been served on the party but the party acquires knowledge of the award by any other means. In this view of the matter and relying on the abovesaid judgment of the Honourable Supreme Court we are not inclined to allow this petition so far as the alternate prayer in the petition is concerned.
Accordingly the petition stands dismissed.
11. Now we take up the two Misc. Applications. The first application, C.MA. 277/91 is moved by the present respondent No.5 with the prayer that the amount of mark-up, already withdrawn by the petitioners from the Court be ordered to be refunded. This application has not been pressed by the learned counsel and is accordingly dismissed as not pressed.
12. The second application C.MA. 429/89 has been moved by the present petitioners with the prayer that the respondent No.5 be direged to pay additional amount of 15% per annum under the newly- added section 28-A of the Land Acquisition Act. The facts of the present case show that the award was made on 6-8-1983 while section 28-A was added subsequent to the making of the award vide Land Acquisition (Sindh Amendment) Ordinance XXIII of 1984. The petitioners have not made any prayer for amendment in the present petition nor they have sought additional relief in the petition.
The amount under section 28-A, if due against the present respondents, the same being a case for recovery of money it will be open for the petitioners to approach the concerned authorities for recovery of such amount in accordance with law. With this observation we dismiss this application also.
12. Above are the reasons for the short order announced by us in Court on 14-5-1992.