1. AMIR-UL-MULK MENGAL, J.---By this order we intend to dispose of preliminary legal objections raised by the respondents' counsel as regards maintainability of appeal under section 54 of Land Acquisition Act, 1894 (hereinafter referred to as the "Act") filed by Military Estate Officer, Quetta Circle, Quetta Cana.
2. The Military Estate Officer has assailed judgment and decree passed by Additional District Judge-I, Quetta on 31-5-1995 'whereby Reference made by appellant was dismissed as well as against Award announced on 27-11-1989 passed by Assistant Commissioner with powers of Land Acquisition Collector.
3. When this appeal came up for hearing on 26-6-1996, a preliminary legal objection was raised by respondents' counsel Mr. Amanullah Khan as regards competency and maintainability of this appeal. We heard the counsel for the parties on 17-9-1996 on preliminary legal objection alone.
4. According to Mr. Amanullah Khan neither Reference before the District Judge nor present Appeal before this Court by the present appellant was competent in view of proviso to section 50 of the Act. Another legal objection raised was that Military Estate Officer was not competent to file an appeal on behalf of Federal Government, as he was not so authorised. However, main question urged was that in view of proviso to section 50 neither Reference to the District Judge nor Appeal in the High Court was maintainable. Reliance has been placed on 1996 CLC 412, PLD 1995 SC 418 as well as 1994 SCM R 2091.
2. As against above contentions, learned Deputy Attorney-General in order to meet the first legal objection contended that Federal Shariat Court in its original jurisdiction in Shariat Petition No.6 of 1988 declared that the Federal Government or a concerned Department of the Federal Government or of the Provincial Government as also the Company or local authority for whose benefit acquisition is made shall be competent to file an Appeal for which directions were made to amend law. Para. 7 of the judgment is reproduced as under: - "We order that the aforementioned sections of the Act shall be amended so as to provide for right of making reference, filing cross-objections and appeal to Federal Government or the concerned department of the Federal Government or of the Provincial Government as also the Company or the local authority for whose benefit the acquisition is made. In that context the proviso to section 50(2) of the Act shall be deleted. "
3. Feeling aggrieved of the order, Shariat Appeal No.7 of 1989 was filed in the Shariat Appellate Bench of Supreme Court which was decided on 18th February, 1991 and the said judgment was upheld and appeal was dismissed with further direction that necessary amendment shall be made for amendment in law before 30th September, 1991.
4. Learned Deputy Attorney-General on the basis and strength, of aforementioned judgment of Shariat Appellate Bench of Supreme Court contended that the law impliedly stood amended in the light of the said judgment with effect from 30th of September, 1991.
5. However, respondents' counsel relied on judgment reported in 1991 SCM R 2193 ' in which, inter alia, it was held that neither section 18 nor section 50 of the Act confer a right of reference either on a company or a local authority for whose benefit the land was being acquired. Furthermore, in case of Pakistan v. Abdul Hayee Khan reported in PLD 1995 SC 418 the Supreme Court held that the Federal Government was not authorised to file appeal against decision of competent Court relating to amount of compensation for the acquired land and the judgment of the High Court not allowing Government to file appeal against verdict of competent Court relating to compensation of land acquired was maintained and upheld. It was further observed in the said judgment that right of appeal is a creation of statute. If statute does not confer right of appeal it does not exist.
6. Incidentally the facts of the case were identical to the case in hand. There in the cited case also, Federal Government through Military Estate Officer, Kharian Cantonment required land for cantonment purposes but the respondents who were exclusive owners of the acquired land filed a joint application under section 18 of the Act seeking reference to the Civil Court for determination of value of their land. The appellants challenged the compensation which was determined by the Senior Civil Judge in the Lahore High Court. The appeal was dismissed on a legal objection to the effect that the appellants being the beneficiaries of the land acquired, had no right to challenge the compensation given to the land owners by the competent Court. The matter went before the Supreme Court and the view taken by the Lahore High Court was approved and reliance was placed on 1991 SCM R 2193. We are now confronted with a situation where the Hon'ble Supreme Court has taken a consistent view but the Shariat Appellate Bench of the Supreme Court while approving the view taken by Federal Shariat Court as regards sections 18, 22-A, 50 and 54 of the Land Acquisition Act thus reached to the conclusions as under:-- "The grounds which weighed with the Federal Shariat Court in making the recommendations are cogent and sound. The amendments in the aforesaid provisions of the Act would make the law more consistent and equitable. It is against all cannons of principles and equity that the Provincial Government may have a right to refer the matter to the Court and file a cross-objection but the Federal Government and its department are not given such a right. It would amount to negation of justice and is repugnant to the Injunctions' of Islam. The wisdom behind such amendments would be to give all the parties a fair opportunity to prove regarding the reasonable amount of compensation to be awarded. A party who has to pay the money from its own funds should have been given a chance to adduce evidence for the purposes of determining the amount of compensation. The proposed amendments would advance remedy to an aggrieved party. It would be fair and just to give a right to make a reference file a cross-objection, lead evidence and file an appeal to those parties who have been denied such a right under sections 18, 22-A, 50 and 54 of the Land Acquisition Act. "
7. Aforesaid judgment was announced in Rawalpindi on 18th February, 1991.
8. Then a larger Bench comprising of 7 Hon'ble Judges of the Supreme Court including Justice Nasim Hassan Shah, Justice Shafiur Rahman and Justice Abdul Qadeer Chaudhary (as they then were) and who were also members of the Shariat Appellate Bench in case of Iftakhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence on 28th July, 1991 as under:-- "The relationship of principal and agent as between Federal Government and the Provincial Government on the basis of the Constitutional provisions or on 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 ILR 30 Cal. 36, approved by the Privy Council in ILR 32 Cal. 605 and considered in N.Bommon Behram 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. "
9. Mr. Amanullah argued that the judgment of the larger Bench being latter in time shall hold the field, and thus the observations that the appeals filed by Central/Federal Government, its department or institutions were not competent and that such appeals having been filed by Federal Government, its department or local authority, for whose benefit the land was acquired were held to have been filed by persons having no right to file appeal to the High Court as such all the appeals were dismissed.
10. While deciding the lis, we have to follow the principle as laid down by the Hon'ble Supreme Court in two capacities i.e. The Full Bench Judgment (1991 SCM R 2193) and the judgment of Shariat Appellate Bench of Supreme Court announced in February, 1991. We have already stated in the preceding paras. That the Federal Shariat Court declared provisions of section 18 and section 50 of the Act as being in contravention of Injunctions of Islam in so far as it prohibited or barred a local authority, a company or the Federal Government or its department either to make a Reference or to file an appeal. Upon the appeal filed by the Government the Shariat Appellate Bench of the Supreme Court while upholding the said view declared that a party who has to pay the money from its own funds should have been given a chance to adduce evidence for the purpose of determining the amount of compensation. The proposed amendments would advance remedy to an aggrieved party. It would be fair and just to give a right to make a reference, file a cross- objection lead evidence and file an appeal, to those parties who have been denied such a right under sections 18, 22-A, 50 and 54 of the Land Acquisition Act.
11. Here it is pertinent to observe that according to Article 203-D sub-Article 3 (b) of the Constitution of Islamic Republic of Pakistan, 1973, if any p law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, such law or provision shall to the extent to which it is held to be so repugnant cease to have effect on the day on which the decision of the Court takes effect.
12. Thus, by virtue of the aforesaid Constitutional provisions the relevant sections of Land Acquisition Act i.e. Sections 18, 22-A, 50 and 54 of the Act, barring a right of appeal to the Federal Government or to make a reference are deemed to have ceased to have effect from 30th September, 1991. The position of law as it emerges after the aforementioned date would be that Federal Government is deemed to have been conferred a right of making reference or filing an appeal against the compensation fixed/determined by the Collector in the award.
13. However, the moot question before us is to see the crucial date i.e. 30th of September, 1991 the day when law is deemed to have been amended.
14. It is pertinent to mention here that directions were given for amendment of law by the said date but none of the parties placed before us any amendment made by the Federal Government or Provincial Government of Baluchistan to the said effect. However, after the crucial date the provisions barring the Federal Government to make a reference or to file an appeal has ceased to have effect, therefore, the Federal Government could make a reference or tile an appeal after 30th of September, 1991, as after judgment bar for filing such appeal has been removed.
15. We are clear in our mind that there is no contradiction in the judgments of the larger Bench of the Supreme Court (1991 SCM R 2193) and the judgment of Shariat Appellate Bench of Supreme Court, although at a cursory view there appears to be a drastic contradiction. The reason being that while deciding appeals the larger Bench held that no right of appeal has been conferred in law to the Federal Government or its department to make a Reference under section 18 of the Act or appeal under section 50 read with section 54 of the Act because all those appeals had been filed in the High Court prior to the judgment of Shariat Appellate Bench. The judgment of Shariat Appellate Bench by which such a right was conferred upon the Federal Government, a company or local authority would definitely take effect prospectively i.e. From 30th of September, 1991; whereas all those appeals were filed in the High Court prior to the crucial date, therefore, it was the old law which was in vogue and considered by the Hon'ble Supreme Court as such we do not find any mention of the judgment of Shariat Appellate Bench for obvious reason that while considering the appeals the Supreme Court dilated upon it under the old provisions of Act under which appeals had been filed in the High Court.
16. However, after 30th of September, 1991 proviso of section 50 of the Act barring a right of appeal to the Federal Government shall cease to have effect, therefore, now after the said crucial date the Federal Government has a right to file an appeal, as per judgment of Shariat Appellate Bench.
17. Keeping in view this principle, we have to see the date when present appeal has been filed. It is clear that this appeal is, dated 7th September, 1995 which is clearly competent in view of the judgment of Shariat Appellate Bench of Supreme Court. The preliminary objection is thus answered accordingly.
18. However, as to the award or Reference made we shall determine the competency of the same at the time of final hearing.
19. Now attending to the second preliminary objection that Military Estate Officer was not competent on behalf of Federal Government to file appeal, it may be observed that Government has issued S.R.O. No.1013(K)/71, dated 28th of August, 1971 authorising the officers prescribed in the Schedule to sign and verify the plaint or written statement in any suit by or against the Federal , Government in the Ministry of Defence or against a public officer in the Service of the Federal Government, of which defence is undertaken by that Government. In item (h) of the Schedule as regards Militan Lands and Cantonment Department, Military Estate Officer and Additional Military Estate Officer are clearly mentioned. Thus this objection is also devoid of an), force.
20. After holding so we are now left to consider the merits of the case as well as other legal questions, like limitation, competency of reference etc. At the time of final hearing of appeal.
21. Two preliminary objections raised are thus answered accordingly. The matter now be fixed for regular hearing for a date in office.