' MUNIR A. SHEIKH, J.---By this common judgment, we propose to dispose of both the abovementioned civil petitions for leave to appeal as questions of law and facts are indentical in both of them.
2. The petitioner seeks leave to appeal against the judgment, dated 10-12-1997 in the former petition and judgment, dated 27-11-1997 in the latter passed by the Peshawar High Court through which R.F.As. Nos.24 of 1993 and 47 of 1994 respectively filed by the petitioners against the judgments, dated 29-5-1993 and dated 10-3-1994, respectively of the trial Court passed in References under section 18 of the Land Acquisition Act, 1894 enhancing the amount of compensation payable to the respondents for their acquired land have been dismissed with the modification in the case of Civil Petition No,45-P of 1998 to the extent of reducing the rate of compound interest from eight per cent. To six per cent. Per annum.
3. The facts of the case relevant for disposal of these petitions briefly , stated are that the land in dispute subject-matter of both the petitions was acquired under the Land Acquisition Act, 1894 for the construction of Chashma Right Project. The Land Acquisition Collector determined the compensation of the land in both the petitions at Rs,3,910.j3 per Kanal. The respondents/owners of the land feeling dissatisfied made reference under section 18 of the Land Acquisition Act, 1894 to the Collector who referred the same to the Court of learned District Judge. The learned District Judge after recording the evidence enhanced the compensation of the land in Civil Petition 45-P of 1998 at Rs,46,265 per Kanal plust 15% compulsory acquisition charges alongwith compound interest at the rate of 8% and in Civil Petition 46-P of 1998 at Rs,14,000 per Kanal plus 15% compulsory acquisition charges alongwith 6% compound interest through judgments, dated 29-5-1993 and 10- 3-1994 respectively.
4. The petitioners aggrieved filed R.F.As. Nos.24 of 1993 and 47 of 1994 before the Peshawar High Court against the said judgments which have been dismissed through the impugned judgments against which leave to appeal has been sought through these petitions.
5. Learned counsel for the respondents on one of the previous dates of hearing when these petitions came up for hearing orally raised the following two preliminary objections, and thereafter through an application as to maintainability of these petitions and locus standi of the petitioners to file appeal/petition:-- "(1) That from decree of the High Court passed on appeal preferred to it, an appeal lies to the Supreme Court of Pakistan under section 54 of the Land Acquisition Act, 1894. Therefore, in presence of a provision for statutory appeal under the aforesaid Act, a petition for leave to appeal under Article 185(3) of 1973 Constitution did not lie before the Supreme Court. In case, petition for leave to appeal is treated as an appeal under section 54 of the Land Acquisition Act, 1894, the same shall be barred by limitation by 29 days for which there is no explanation provided on record by the petitioner. In somewhat similar circumstances, Civil Appeals Nos.964, 965 of 1997 were dismissed as barred by limitation by a learned Bench of this Court on 23rd April, 1998. This petition must receive similar treatment.
2. That the petitioner WAPDA through its Chief Engineer was not competent in law to file either a petition for leave to appeal under Article 185(3) of 1973 Constitution or an appeal under section 54 of the Land Acquisition Act, 1894 because under the Land Acquisition Act, the beneficiary for whom the land was acquired had no right to demand a Reference under section 18 of the Land Acquisition Act, or to appeal from the Award made by the Reference Court in the High Court and to prefer an appeal from the decree of the High Court passed on appeal by it to the Supreme Court of Pakistan. Apart from others, reference to cases reported as PLD 1995 SC 418, 1995 Law Notes 557, 1994 SCMR 1648 and 1994 SCMR 2091 are in point."
6. Learned counsel for the petitioners has submitted written reply to these objections which are reproduced below in extenso in order' to appreciate his' view-point:-- "Reply to Objection No,1: (i) This petition for leave to appeal has been filed under Order XIII, Rule 1 of the Supreme Court Rules, 1980 because direct appeal under Order XII, Rule 1 or Rule 1(ii) does not lie in this case as the impugned judgment/decree of High Court has not varied/set aside the judgment of the Court immediately below.
(ii) Appeals/petitions are filed against the judgment of High Court to the Supreme Court under Article 185 of the Constitution. As such, a party may avail the right under the provisions of the Constitution and as well as/or under the specific Act providing an appeal to the Supreme Court.
However, section 54 of the Land Acquisition Act makes mention of, section 110 of C.P.C. Which has already been repealed and stands omitted. Appeals to the Supreme Court are also provided under section 9 of C.P.C., but since C.P.C. Does not apply to the Supreme Court and only the Supreme Court Rules apply, therefore, under the provisions of Supreme Court Rules read with Article 185 of the Constitution, the appeals/petitions are competent. Moreover, it has always been held that the technical objection as to which section of law is applicable is not a hindrance to the filing of appeal/petition which otherwise is competent under the law. Furthermore, in most eases the appeals/petitions are filed against the impugned judgments/decrees of High Court under the'
Supreme Court Rules. As such, when the petition is competent, the objection is liable to be overruled. The appeals mentioned in the objection may have been dismissed as claimed therein, but in the present case, no appeal lies to the Supreme Court under the rules and this case is distinguishable as stated above. Reliance is placed on PLD 1975 SC 678.
Reply to Objection No,2:
(i) That vide judgment, dated 18th February, 1991 in Shariat Appeal No,7 of 1989, the Shariat Appellate Bench of the Supreme Court, as regards sections 18, 22-A, 50 and 54 of the Land Acquisition Act reached to the conclusions as under:-- ' 'The grounds which weiged 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 departments 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 reference, file cross-objections, lead evidence and file an appeal under sections 18, 22-A, 50 and 54 of the Land Acquisition Act (The above quotation has been reproduced in 1997 CLC page 59 in the case reported in 1997 CLC 556')."
7. In support of his first-mentioned objection, learned counsel for the respondents referred to an order passed by this Court in Civil Petitions Nos.246 and 247-P of 1996 which were directed against the judgments of the High Court made in the proceedings arising from acquisition of land and reference made under section 18 of the Land Acquisition Act, 1894 in which a similar objection' based on section 54 of the Act i.e, that an appeal directly was maintainable against the said judgment was upheld and those petitions were converted into appeals and dismissed through judgment, dated 23-4-1998 passed in Civil Appeals Nos.964 and 965 of 1997 as time-barred. He submitted that period of limitation prescribed for an appeal before this Court against the judgment of the High Court is thirty days whereas it is sixty days for a civil petition for leave to appeal and since the appeals had become barred by time, therefore, in order to circumvent the bar of limitation., the petitioners had with mala fide intention adopted the device of filing civil petitions in order to avail period of limitation of sixty days in order to bring these petitions within limitation.
8. The reliance of the petitioners' counsel is mainly on Article 185 of the Constitution and Supreme Court Rules, 1980 as contained in Order XIII to maintain that these petitions were maintainable. In amplification of the contentions raised in the reply which have been reproduced above, learned counsel for the petitioners submitted that appeal under section 54 of the Land Acquisition Act, 1894 is to be regulated by section 110, C.P.C. As per terms of the said provisions of law and the said section 110, having been omitted from C.P.C. By way of amendment through P.0.4 of 1975 is no more part of the parent Statute, therefore, appeal under section 54 of the Act can no longer be filed. He further submitted that if the same can still be filed, the petitioners have both the remedies one under section 54 of the Land Acquisition Act of an appeal and the other of filing a petition under Article 185 of the Constitution and they having selected one of the said remedies cannot be non- suited and the petitions should be heard on merits.
9. Since learned counsel for the petitioners has also raised the question of non-maintainability of appeal under section 54 of the Land Acquisition Act, 1894 on account of section 110, C.P.C. Having been repealed in C.P.C. To which reference has been made in this section which according to the learned counsel was to regulate the appeal under the said section, therefore, for facility of ready reference, it is appropriate to reproduce section 54 of the Act:-- "54. Appeals in proceedings before Court.- -Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings' under this Act to the High Court from the award. Or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to (the Supreme Court) subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof."
10. Learned counsel for both the parties, it appear from the arguments addressed by them and from their applications and the reply pertaining to these objections, are not on principle in disagreement that section 54 of the Land Acquisition Act does provide remedy of filing appeal against the judgment and decree of the High Court passed in appeal arising from the proceedings initiated through reference under section 18 of the Act. Learned counsel for the petitioners submission was that the said remedy has become inoperative and ineffective on account of omission of section 110, C.P.C. From the parent Act by way of amendment which according to him controlled the substantive part of section 54 of the Land Acquisition Act providing right of appeal and secondly that the petitioners had remedy of appeal under section 54 of the Act as well as of filing petition under Article 185 of the Constitution and it was privilege of the petitioners to choose one of the said remedies and once he had selected the remedy of filing a petition instead of appeal, the said right could not be denied to him and he could not be non-suited on that account.
11. In order to resolve this controversy, it is necessary to examine the relevant provisions of the Constitution and the law.
' Article 175(1) of the Constitution provides that there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established under or by any law. Clause
(2) of this Article, however, ordains that no Court shall exercise jurisdiction unless it is conferred upon it by or under any law. Article 187 of the Constitution empowers this Court to pass any judgment and decree in a case before it which, in the circumstance of the case, it deems fit, which power is controlled by clause (2) of Article 175 (ibid) which is indicative of the express command of the Constitution that jurisdiction conferred on this Court by or under any statute has been saved.
12. We have examined provisions of different Statute which provide right, of appeal against the orders, judgments or decrees passed thereunder to the Supreme Court independent from Article 185 of the Constitution which has the sanction of Article 175(2) of the Constitution and the Supreme Court in such cases having been conferred the jurisdiction to hear appeals, therefore, the aggrieved person has to avail the said remedy for if no appeal is filed thereunder, the proceedings taken thereunder and the judgment and order passed would attain finality by virtue of the concerned Statute itself. We may mention some of such Statutes.
' Section 48(3) of the Senate Election Act, 1975 and section 67(3) of the Representation of the People Act, 1976 provide right of appeal to a person aggrieved by the decision of the Election Tribunal. Section 10(1) of the Companies Ordinance provides right of appeal against any order, decision or a judgment of a High Court. Likewise, section 137(1) of the Income Tax Ordinance also provides a right of appeal from any judgment of the High Court delivered on a reference under the said Ordinance.
13. Land Acquisition Act, 1894 is a complete Code as regards acquisition of land, making of reference under section 18 thereof in case there is dispute about adequacy of compensation to be awarded for the acquired land to the owners thereof etc., and the decisions/judgments passed by the Court on such reference. The said section is also a complete Code as regards remedies of an aggrieved person against the said judgments passed by the Courts and section 54 provides that an appeal would lie to the Supreme Court against the judgment of the High Court passed in those proceedings of course with reference to section 110, C.P.C. If no appeal is filed as provided in this section, the legal consequence to follow is that the judgment and decree would become final as regards the said Act and would be enforced and given effect to.
14. No doubt that section 54 of the Land Acquisition Act provides that the procedure as regards appeal under it would be regulated with reference to section 110, C.P.C. From a bare reading of section 54 of the Act, it is clear that section 110, C.P.C. Is not to override or control the substantive provision of the section as regards remedy of appeal itself but it only provide that the procedure to be followed for filing the appeal would be the same as provided in section 110, C.P.C. Which merely lays down certain matters as regards value of the subject-matter etc.
15. The argument of the learned counsel for the petitioners is based on the erroneous assumption of law that with the omission of section 110, C.P.C. From the present statute by way of amendment, the same stands automatically omitted and repealed from section 54 of the Land Acquisition Act, 1894 and was no more part of the same and applicable. Section 110, C.P.C. Had been legislated by way of reference in section 54 of the Act, therefore, the same shall be deemed to have been incorporated in the said section as it was part of C.P.C. On the date of its incorporation and would continue to be the part of section 54 thereof till' the said section itself is amended and reference to section 110, C.P.C. Is omitted. Mere omission of section 110, from C.P.C. Would not automatically operate and its omission from section 54 of the Land Acquisition Act. Even if it be assumed for the sake of argeements that with the repeal of the said section from C.P.C., it cannot be read as part of section 54 of the Act, the same in our calculated opinion would not render ineffective the substantive provision of remedy of appeal as provided in the said section rather the appeal would lie without fulfilment of any condition as prescribed by section 110, C.P.C. It could not be maintained by the learned counsel for the petitioners on the basis of accepted principles of interpretation of statutes that by omission of section 110, C.P.C., as argued the remedy of appeal itself had been frustrated or destroyed.
16. In the light of the above discussions and the scrutiny of the different provisions of different laws and in particular Articles 175(2) and 187 of the" Constitution, we are of the firm view that in this case, the remedy of the petitioners was to file appeal under section 54 of the Land Acquisition Act, 1894 and these petitions are not maintainable on that account.
17. Learned counsel for the petitioners argued that as was done in Civil Petitions Nos.246 and 247-P of 1996, these petitions may also be converted into appeals and decided accordingly. These petitions are hereby ordered to be converted into appeals and the Office shall register the same as such.
18. The appeals are admittedly barred by time by 29 days. No application for condonation of delay has been made by the appellants even after the objection of maintainability of civil petitions having been raised long before orally and thereafter by written application. It is well-settled law that ignorance of law is no excuse. The appellants had been insisting upon that they could maintain the civil petitions and avail of the said remedy even if remedy under section 54 of the Land Acquisition Act of filing appeal was also available. We see no reason to condone the delay as the respondents have acquired a valuable right arising from the impugned judgments and decrees which provide compensation for the land acquired from them.
19. Since the appeals are liable to be dismissed on the ground of limitation, we are not called upon to decide the second preliminary objection as to locus standi of the appellants to file appeals which may be considered in some other appropriate case in which it would be necessary to decide the same in order to . Dispose of the case.
20. For the foregoing reasons, these appeals are dismissed as time-barred. The above are the reasonings for our short order, dated 7-10-1998 which were to be recorded later. There will, however, be no order as to costs.