' NAIMUDDIN, J.-The facts giving rise to this petition under Article 98 of the late interim Constitution briefly stated, are : The lands in all measuring 279 acres 21 guntas and situated in villages Jung, Daharki and Wahi Gul Khan, Taluka Uhauro, District Sukkur, were acquired under the provisions of the Land Acquisition Act, 1894 (hereinafter called 'the Act') for Esso Pakistan Fertilizer Company Ltd., for setting up a Fertilizer Project at Daharki, District Sukkur, by the Notification, dated 24-2-1966, issued under section 4 of the Act and published in the Gazette of West Pakistan, Extraordinary, dated 11-3-1966, and modified by the Corrigendum, Addendum and Deletum No, 89-9-LA/59, dated 8.64966, issued by the Commissioner, Kbairpur Division, and published in the Gazette of West Pakistan, Extraordinary, dated 9-6-1966, and the subsequent notification dated 25-6-1966 published in the Gazette of West Fekistan, Extraordinary, 27-6-1966. The lands acquired included the lands owned by respondent 1. After completion of all the formalities under sections 6, 8 and 9 of the Act, the Assistant Commissioner, Rohri Sub-Division at Ghotki, who was appointed as the Land Acquisition Collector, under section 3 (c) of the Act, gave his award dated 14-12-1967.
2. On 22-1-1968, within the statutory period, respondent 1 filed five applications under section 18 of the Act in the Office of the Deputy Commissioner/Collector, Sukkur, addressed to "the Land Acquisition Collector, Sukkur" requiring him to refer the case to the Court of District Judge, Sukkur, for determination of the amount of compensation as he had objections to the amount awarded to him as compensation by the award dated 14-12-1967.
3. From the record produced before us, on our summoning, it appears that these applications were put up for orders of the Deputy Commissioner/ Collector, along with the Office Note dated 23-1- 1968. It further appears that these applications were forwarded to the Ass stant Commissioner; Rohri Sub-Division at Ghotki, for his remarks under Memo R. B. (C)/1482 dated 3-2.1968 who along with his comments contained in his letter dated 17-4-1968 returned the same to the Deputy ommissioner/Collector. Thereafter, certain correspondence ensued between the Office of the Deputy Commissioner/ Collector and the Office of the Assistant Commissioner, Rohri Sub-Division at Ghotki, which need not be adverted to. However, respondent 1 was informed by the Assistant Commissioner and Land Acquisition Collector by his Letter No, 8510, dated 18-12-1968, received by respondent 1 by post on 26-124968, that his application had been flied because the powers of , the Land Acquisition Collector had been entreated to the Assistant Commissioner and respondent 1 therefore should submit fresh applications/objections. Accordingly, respondent 1 filed fresh applications, dated 3-1-1969, entitled as "the application under section 18 of the Land Acquisition Act, 1894" with the Assistant Commissioner, Rohri Sub-Division at Ghotki. On these applications, therefore, the Assistant Commissioner and Land Acquisition Collector, Ghotki, made reference to the Court of the District Judge at Sukkur on 23.4-1969, through the Deputy Commissioner, Sukkur.
4 In the proceedings before the District Judge, Sukkur, the petitioners after being joined on their own application as p party to the proceedings made another application dated 16-7-1970, under Order VII, rule 11, C. P. C. For rejection of the application inter alla on the ground that the same was barred by limitation. However, Mr. Haider Shah M. Syed, Additional District Judge, Sukkur to whom, it appears, the case was transferred, heard he application and by his order dated 3-5-1971, relying on the Collector of Karachi v. Haji Gala and others (I), rejected the application holding that once the reference was made it was not open to adjudicate upon the question whether the appitration made to the Collector was barred by time or not.
5. Therefore, the petitioners have come up to this Court in this constitution petition and have challenged the order of reference dated 23-4-1969, claiming the same to be illegal, without jurisdiction and of no legal effect.
6. We have heard Mr. Khatid M. Ishaque, Advocate for the petitioners, and Mr. Imam All Kazi, Advocate for respondent 1.
7. Mr. Ishaque has contended that the order of reference by respondent 2 to the Court of District Judge was without jurisdiction on two grounds, namely: (1) respondent 1 had made no prayer in the application under section 18 of the Act for making reference to the Court of District Judge; (2) the application, dated 3-1-1969, made by respondent 1 was barred by time,
8. So far the first ground is concerned, it may be pointed out that the same is not based on proper appreciation of the contents of the application, for the application is entitled under section 18 of the Act, which section provides that any person interested, who has not accepted the award may by written application to the Collector require him to refer the matter for determination of the Court. It also stares that after publication of the award respondent 1 had submitted the application direct tea the Deputy Commissioner, Sukkur, within statutory period. It also contains grounds of objections to the award and the prayer for taking early action in to matter. Therefore, by necessary implication the second application contains a request for referring the matter to the Court for its determination. Further, there is E0 doubt that the first application which has been referred to in the second application expressly contains a prayer for making a reference to the Court and if the two applications are read together they no doubt, lead to the same conclusion. Therefore, this around has not substance and we accordingly reject it.
9. However, the second ground that the second application on which reference was made to the Court of the District Judge was barred by time as the same was filed after about 11 months of the expiry of time has force. Under section 18 of the Act, a claimant who has not accepted the award is required to make application within six weeks from the date of the Collector's award if he was present or represented before the Collector at the time when he made his award, and 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 should first expire.
Since the award was made on 15-2-1967, and the second application was filed on 3-1-1969, the same was no doubt, beyond time, respondent 2 was aware of this fact. However, he left the question for decision of the Court on the assumption that the Court could go into it. But the assumption was wrong in view et' two decisions of this Court in Sind Industrial Trading estates v. 1st Assistant Judge, Hyderabad, West
(1) PLD 1965 Ker. 413 ' Pakistan an 4 others (1) and Collector of Karachi v. Haji Gala and others, a decision of Lahore Bench of erstwhile High Court of West Pakistan, in Bashir Ahrnad and others v. The Collector, Mahan
(2) and a Full Bench decision of the Peshawar High Court in the Collector, Mandan and 2 others v.
Taj Bib! And 14 others (3).
10. However, the controversy does not end there. Respondent 1 earlier on 22-1-1968, had filed five applications in the office of the Deputy Commissioner/Collector, Sukkur, which were well within time. But since these applications were presented in the office of the Collector no reference was made thereon, as, according to respondent 2, they were not filed at the proper p' lace.
' The learned counsel for respondent 1 however, submitted that under section 18 of the Act the claimant was required to make an application to 'the Collector' which expression according to the learned counsel, means the Collector of the District and since respondent 1 bad filed the applications in the office of the Collector within time they were properly presented. He, therefore, argued that either the reference ought to be deemed to have been made on the earlier applications or, in any case, the said applications ought to be deemed still pending.
11. In reply the learned counsel for the petitioners submitted that the reference could not be deemed to have been made on the earlier applications as the Assistant Commissioner/Collector in the reference stated that, "since notice under section 12(2) admitted by the applicant was served upon him, an application for reference should have heel filed within prescribed time at the proper place (underlining* is ours for emphasis). The claimant did not file. As a result, he Goes not appear to have the remedy of 'reference under section 18 available to him. However, the matter is left for the Court to determine", whicle leads to the conclusion teat the reference was made on the subsequent applications. We agree with him.
12. As regards the submission relating to pendency of the previous applications, the learned counsel for the petitioners submitted that since respondent 2 had chosen to invite fresh applications notwithstanding the fact that the previous applications were referred to him twice by the Collector, first under the cover of Memo No, 1482 dated 3-2-19e8, and the second time when he informed respondent No, 1 to file fresh applications. The applications ought to be deemed to have been disposed of as the same were not presented to the proper authority and at proper place as held by respondent 2.
13. In order to appreciate the respective submissions of the learned counsel for the parties it is necessary to refer to the definition of 'the Collector' given in subsection (c) of section 3 of the Act which expression means, 'the Collector of a district and includes a Deputy Commissioner and any officer specially appointed by the Provincial Government to perform the functions of a Collector under the Act Under section 18 of the Act application has to be made to the Collector which expression according to the Act, means the Collector of the district and which expression also includes the Deputy Commissioner and any other officer specially appointed by the Provincial Government to perform functions of a Collector under this Act. Since it cannot be disputed that
(1) PLD 1960 Ku. 826 (2) PLD 1962 Lah. 292
(3) PLD 1972 Pesh. 197 ' the officer in whose office the first applications were filed was the Deputy Commissioner, Sukkur, and also the Collector of the District appointed under section 8 of the Sind Land Revenue Code, 1879 then in force and subsequently with effect from 1-1-1968, under section 7(2) of the West Pakistan Land Revenue Act, 1967, whereunder the Deputy Commissioner of th District or an officer performing, for the time being, functions as such, became the Collector of the District, and the said officer was therefore, the Collector within the meaning of the Act, and therefore, reference could properly be made to him. So was the Assistant Commissioner who was specially appointed by the Provincial Government to perform the functions of the Collector. In this view of the matter the application could be made to either of them. But, even if the making of an application is considered t be restricted to the Assistant Commissioner who was the officer specially appointed in the present case to perform the functions of the Collector I would suffice to point out that the application was in fact, correctly addressed to him as it was addressed to 41n the Court of Land Acquisition Collector, Sukkur", as would appear on the face of the applications. Therefore, the applications were made to proper authority although filed in a wrong office In such a ease the office of the Deputy Commissioner should not hav accepted the applications or should have returned the same to respondent for presentation to the proper officer. However, as stated earlier the office of the Deputy Commissioner had forwarded the same to the Assistant Commissioner who bad returned the same with his comments and to whom they were again returned. Therefore, respondent 2 should have dealt with the first applications and ought not have required respondent 1 to file fresh applications. In this view of the matter we think respondent 2 unduly refused to exercise the jurisdiction in relation to the said applications and made a fetish of technicality. We, therefore, consider the applications still pending.
' Since we have reached the conclusion that respondent 2 in spite of the fact that he was conscious of the question of limitation left it to be decided by the Court of the District Judge which question, as stated above, could not have been left for decision of the Court of District Judge, he D failed to exercise the jurisdiction vested in him and accordingly his order is without jurisdiction so also is the order whereby he refused to refer the question of compensation under section 18 of the Act to the Court of the District Judge on the first applications. Now, therefore, the order of reference has to be declared to be without lawful authority and accordingly we declare the same to be so and following Yousufali v. M. Aslam Zia (1) on which reliance was rightly placed by the learned counsel for the petitioner, we also declare all subsequent orders based thereon without lawful authority and of no legal effect as no statutory provisions or principle of law recognising as legal the changed position of the parties was brought to our notice and as we are conscious of the fact that the petitioners had questioaed the validity of reference on the ground of limitation before the District Judge although in view of the decisions referred by us hereinabove, they were precluded from doing so. But at the same time equities of the case require, us to declare the five applications dated 22-1-1968, still pending, which we hereby do and we would therefore, direct respondent 2 to consider the question of reference under section 18 of the Act, afresh on the said applications after notice and giving opportunity of hearing to the parties. We would have been inclined to hold that order of reference was made on,
(1) PLD 1958 SC (Pak.) 104 ' the first applications treating the second applications in continuation of the first applications on the facts and in the background of this case. But since the petitioners were not heard by respondent 2 earlier, at any stage, although they, being interested parties, were entitled to be heard in view of the provisions of section 30 of the Act, particularly of subsection (2) thereof, which gives them a right to appear and adduce evidence for the purpose of determining the amount of compensation, therefore, the petitioners are also the party who should have notice of the applications, under section 18 of the Act for mak ng a reference to the Court, for unless they have notice, they cannot point out any defects in the applications or raise any other objections which could be considered only at that stage and not subsequent ly.
' We may also mention here that the learned counsel for respondent 1 vehemently relying upon Messrs Lyalipur-Sahiwat Bus Service v. AppelLte Authority and 2 others (it, submitted that the wrong decision on the question of imitation does not make it a question of jurisdiction. In the cited case, while considering Malik Khizar Hayat Khan Tiwana and another v. Mst. Zainab Begum and others (2), their Lordships of the Division Bench of the Lahore High Court, observed as fellows:- "This decision is not apposite to the case before us because, as has been seen above, the defect of limitation is not a defect of jurisdiction; wherefore, any erroneous view of law taken on such a point would not be covered by this ruling because according to it, an erroneous view of law or an erroneous assumption of facts upon which the jurisdiction of the Court itself depends can be scrutinized under Article 98 ef the Constitution."
However, in the present case the question of limitation was not at all decided by respondent 2 and was erroneously left by him to be decided b the Court which makes it a case of refusal to exercise jurisdiction vested in him, and is therefore one of jurisdiction. In Ahsan All v. District Judge (3 their Lordships of the Supreme Court had remanded the case to the Settlemen Court for consideration inter ally the question of limitation as the same was not considered by it earlier.
' In the result, we declare the order of reference, dated 18-4-1969, to have been passed without lawful authority and of no legal effect and direct respondent 2 to pass fresh orders on the first applications according to law after issuing notice to the petitioners and respondent 1 and providing them opportunity of hearing.
' In the circumstances of the case we leave the parties to bear their own costs.
(1) PLD 1970 Lah. 775 (2) PLD 1967 SC 403
(3) PLD 1969 SC 167