1. ' This appeal filed by Military Estate Officer, Hyderabad Circle in the name of Government of Sindh and Government of Pakistan is directed against an order dated 16-11-1991 passed by learned Additional District Judge, Kotri in Land Acquisition Suit No,1 of 1991 whereby he rejected a reference filed under section 18(3) of the Land Acquisition Act (hereinafter to be referred as the Act), holding that the Reference was incompetent and beyond the scope of section 18 of the Act.
2. ' By notification under section 4 of the Act lands measuring 1492-13 acres were acquired for establishment of Pakistan Air Force Field near Bholari. An award to this effect was given by the Land Acquisition Officer, Kotri dated 7-3-1985. Subsequently another piece of land measuring 111-25 acres was acquired for and on behalf of Ministry of Defence in respect of which another notification under section 4 of the Act was issued on 30-5-1984. This was followed by another notification under sections 6 and 17 of the Act issued on 17-1-1985 whereas possession of the lands was given to the Army Authorities on 26-2-1983. In respect of the disputed land measuring 28-10 acres owned by respondents Nos.1 and 2 Land Acquisition Officer, Kotri made an award dated 12-11-1990 awarding compensation of Rs,15,93,170.10 to respondent No,1 and compensation of Rs,10,73,483.58 to respondent No,2.
3. ' Being aggrieved by this award Military Estate Officer, Hyderabad Circle made a Reference under section 18(3) of the Act to the Land Acquisition Officer, Kotri requesting him to refer the award to the District Court for determination and re-examination of the award and acquisition proceedings on a number of grounds. On his part Land Acquisition Officer referred the case to learned Additional District Judge, Kotri who after hearing the parties vide order impugned in this appeal rejected the Reference as being incompetent and beyond the scope of section 18 of the Act as observed earlier.
4. ' Learned counsel appearing for the contesting respondents has raised preliminary objections to the maintainability of the appeal as well as the Reference before the District Court. While referring to the provisions of subsection (3) of section 18 of the Act learned counsel has urged that the Reference in the present case at the behest of Military Estate Officer was totally misconceived, untenable and not warranted by law. For proper understanding and appreciation of the controversy section 18 of the Act may be reproduced with advantage which reads as under:--
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 persons 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 the collector under section 12, subsection (2) or within six months from the date of the Collector's award, whichever period shall first expire.
5. ' On plain reading of the above provision of law it would appear that under subsection (1) any person interested in the award, may, by an application in writing to the Collector require that the matter may be referred for the determination of the Court on the following grounds:--
(a) objection to the measurement of the land;
(b) the amount of compensation awarded;
(c) the persons to whom it is payable;
(d) the apportionment of compensation among persons interested or the amount of costs allowed.
6. ' Subsection (2) envisages the time limit within which an application is required to be made to the Collector which in the case of a person being present or represented before the Collector at the time of making award is six weeks from the date of the award and in other cases within six weeks of the receipt of notice from the Collector under section 12(2) of the Act or within six months from the date of award whichever is earlier. Subsection (3) recognizes right of the Provincial Government in the event of award being not acceptable to it to refer the matter directly to the Court within a period of six months from the date of announcement of award.
7. Subsection (3) of the above section has been amended by Land Acquisition (Sindh Amendment)
8. Ordinance, 1992 with effect from 7-7-1992 whereby for the words "the Provincial Government", "the Federal Government the Provincial Government, a Company or local authority" have been substituted.
9. ' In the light of, aforesaid position in law it has been rightly contended that in the instant case at the relevant time, only Provincial Government was competent to take the matter directly to the Court and the Reference by Military Estate Officer to the Land Acquisition Officer was barred and not maintainable at law.
10. ' This question was considered by the Hon'ble Supreme Court of Pakistan in the case of Iftikhar Hussain Shah and others v. Pakistan through Ministry of Defence, Rawalpindi and others (1991 SCMR 2193). At page 2205 of the report it was held that where the lands were acquired at the request and for the purpose of Federal Government, appeals filed by the Federal Government, its departments or local authority for whose benefit the land was acquired were filed by persons having no right to appeal to the High Court and all such appeals in the High Court were liable to be dismissed. In this case various judgments from the Indian jurisdiction were discussed and view taken earlier by the Supreme Court in the case of Pir Khan through his legal heirs v. Military Estate Officer, Abbotabad and others (PLD 1987 SC 485), 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) was followed. Contention of the Federal Government raised by the Deputy Attorney-General in the reported case was finally repelled by holding that in the N.-W.F.P. The right of the Provincial Government and, the Provincial Government alone, apart from the affected land owners, has been recognised 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. This view was followed by the Sindh High Court in the case of The Additional Chief Secretary, Sindh v. Assistant Commissioner, Badin and others (1993 MLD 635) in which my learned brother Abdul Rahim Kazi, J. Held that no Reference under section 18(3) of the Act could be made by the Provincial Government through the Land Acquisition Officer but the said subsection (3) provides for a direct Reference by the Provincial Government.
11. ' Learned counsel appearing in support of this appeal has not been able to meet the above proposition of law and in fact no second view could possibly be taken in the circumstances as the proposition of law has been set at rest by apex Court of the country. He, however, referred to a judgment of the Supreme Court in Shariat Appeal No,7 of 1989 decided on 18-2-1991 whereby the Supreme Court dismissed the appeal from the judgment of the Federal Shariat Court recommending to the Federal Government for making appropriate amendments in sections 18, 22- A, 50 and 54 of the Act providing a right to the Federal Government, its departments or the Department of Provincial Government or company or a local authority for whose benefit land is acquired. In any case, this judgment does not advance the case of the appellants as reference was made long earlier and it is perhaps on account of this judgment that the Provincial Governments were persuaded to make appropriate amendments in section 18(3) of the Act.
12. ' It was next contended that the present appeal filed on behalf of Government of Sindh as well as the Government of Pakistan under the signatures of Military Estate Officer through Mr. A.H. Motiwala, Advocate was incompetent and untenable as Mr. Motiwala was neither authorised by the Provincial Government nor by the Federal Government to file this appeal. In terms of Order XXVII, rule 8-B of the Code of Civil Procedure it was pointed out that Mr. Motiwala was not appointed as Government Pleader either by the Provincial Government or by the Federal Government. Even according to order III, rule 2, C.P.C. Mr. Motiwala could not be treated as recognized agent on behalf of the Government of Sindh as well as the Government of Pakistan as no authority has been filed in Court to indicate if he was so authorised to act and appear on behalf of the appellants as shown in the title of the appeal. Vakalatnama filed by the learned Advocate is purported to have been signed by Assistant Commissioner, Kotri and Military Estate Officer, Hyderabad Circle who were nJt legally competent to authorise Mr. Motiwala to file an appeal on behalf of the Provincial as well as Federal Government. Under the provisions of Order XXVII, rule. 1, C.P.C. In any suit by or against the Government, the plaint or the written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case. Undoubtedly neither Assistant Commissioner, Kotri nor the Military Estate Officer, Hyderabad were appointed by the Provincial or the Federal Government to file the present appeal. As such the memo of appeal signed by Military Estate Officer was unauthorisedly filed and wrongly entertained. In this connection I am benefited by judgment of my learned brother Abdul Rahim Kazi, J. In the case of Government of Sindh through Secretary, Housing and 2 others v. Haji Abdul Rehman and others reported in PLD 1992 Karachi 150 in which an appeal filed on behalf of Government by an Advocate who was neither holding the office of the Assistant Advocate-General nor authorised by the Advocate General was held to be incompetent. In the case of Sakhi Muhammad v. Mst. Taj Begum and 4 others (1985 CLC 734 (AJK) it was held that compliance with provisions of Order III, rule 4 and Order XLI,rule 1 is mandatory and not directory. It was authoritatively laid down that where appellant did neither sign memo. Of appeal nor engage any counsel and filed a Form of Vakalatnama which contained neither name of counsel nor an endorsement as a token of acceptance the appellant acted in a most irresponsible manner and such omission could not be allowed by way of amendment.
13. In the light of facts and circumstances stated above it would be just, proper and equitable to hold that the Reference made to the lower Court as well appeal filed before the High Court were completely misconceived and not maintainable at law. Appeal is accordingly dismissed with costs.