SHABBIR AHMED, J.-- The plea, raised in the above appeals, is based on principle of merger of order/decree and it is, whether the "award" passed by the Land Acquisition Officer in terms of Section 11 of the Land Acquisition Act (in short the Act) merges in order passed by the Court rejecting the reference under Section 19(3) of the Act. The contention has been raised in the following circumstances.
2. Since the facts in above appeals are maintainability same, would refer the facts in first appeal No. 36/2003. The decision in this appeal would govern the decisions of others appeals.
3. Briefly, stated, the facts are that the land of appellants were acquired on the request of respondents Np. 2 for public purpose. The respondent 1 passed the award No. 74, dated 10.2.2000.
The respondents did not accept the award and respondent 2 filed as application under Section 18(3) of the Act in the Court of District Judge, Sanghar but withdrew the same and it was dismissed as withdrawn on 31.5.2003. The reference was repeated under Section 18(3) of the Act by the respondent No. 1 in the District Court, Sanghar, which was assigned to Additional District Judge, Sanghar as land acquisition case No. 3/2000, the reference was rejected by the order dated 29.9.2001 on the application filed by the appellants under Order 7, Rule 11, CPC on the ground that the reference was not competently filed. The review application was also dismissed. The respondents have neither tendered the awarded to the applicants nor they have deposited the same in District Court Sanghar under Section 31(2) of the Act.
4. The appellants filed execution application No. 3/2003 before the Additional District Judge, Sanghar. The learned Additional District Judge dismissed the application by order dated 29.3.2003, which has been impugned in the above appeals.
5. The learned Additional District Judge dismissed the execution application with the following observations:- I have come to the conclusion that the applicant of this Execution Application was the defendant in L.A. Suit No. 3/2003. In that L.A. Suit he preferred an application under Order VII, Rule 11, CPC on the ground that plaintiff had no locus standi to file L.A. Suit. Such application was rejected with the observation that the plaintiff had no locus standi/cause of action to file such suit, which, however, could be filed by the Provincial Government u/S. 18(3) of the Land Acquisition Act. Except rejecting plaint no relief of (any) kind whatsoever was granted in that order or in the decree followed by bail order. But surprisingly, in column 9 of this Execution Application, the defendant has mentioned false and fabricated material which was neither, part of order rejecting plaint nor of decree followed by said order. The conduct of defendant also show that he has come before this Court with unclear hands. The Court by exercising powers as Executing Court cannot go beyond the decree and order passed in the matter. Even otherwise, there is nothing in the order/decree to execute the same as only the plaint was rejected. Hence the Execution Application merits no consideration and. The same is hereby dismissed."
6. Mr. Ghulam Rasool Qureshi, learned counsel for the appellants submission was that the learned Executing Court has erred in law by ignoring the rule of manner that once the reference is filed and rejected. The award passed by the Land Acquisition Officer served in the order. The rejection order is a decree under clause (2) of Section 2, CPC and was executable by Court for realization of the awarded amount on the principle of merger. Therefore, the dismissal of execution applications is not sustainable in law.
7. The term "merge" and "merger" have been defined in Corpus Juris Secundum, Volume 57, at page 1067, as follows:- "The verb ' to merge' has been defined as meaning to sink or disappear in something else, to be lost to view or absorbed into something else, to become absorbed or extinguished, to be combined or be swa llowed up.
' Merger' is defined generally as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased, an absorption or swallowing up so as to involve a loss of identity and individuality."
The concept of merger of decree was explained by the Privy Council in Lala Brij Narain v. Kunwar Tejbal Bikram Bahadur (37 I.A. 70) that the Trial Court ceases to have jurisdiction to amend the decree when it has been affirmed by the Appellate Court.
This view has generally been followed in Sub-Continent. Reference in this connection may also be made to:
(1) Harilal Dalsukhram Saheba v. Mulchand Asharam (AIR 1930 Bombay 225).
(2) Saeed Ahmed v. Messrs. Indo Enamel Works Limited, Lahore (PLD 1954 Lah. 490).
The rule of merger was also illustrated, on an exhaustive review of case-law by Kaikaus, J. In his lucid judgment in F.A. Khan v. Government of Pakistan (PLD 1964 SC 520), that:- ".... Once an appeal is filed the matter become sub judice and when the appellate authority passes an order, the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order ..... "
The same view was reiterated by the apex Court in Moulvi Abdul Qayyum v. Syed All Asghar Shah and 5 others (1992 SCMR 241) that after affirmation of the decree of Trial Court, the decree in existence is only that of the Appellate Court.
8. There is no cavil with the proposition that order to appeal merges in the Appellate Order. In order to examine the enforceability of rule of merger in the instant case, it is necessary to examine the nature of the proceedings by the Collector under Section 11 of Part-I and the proceedings of the Court under Section 18 of Part-II of the Act and the character of the awards of the above forums.
The proceedings taken by the Collector are not the judicial proceedings and his award is not a decree, as ruled in Dinshaw Italia v, State of Hyderabad (AIR 1955 Hyderabad 203), whereas the proceedings under. Section 18 of Part-II of the Act before Court are not in nature of appeal from the award (Special Land Acquisition Officer, Railways v. Rama Rao and another (AIR 1974 Karnatak 50).
It is a special proceedings and such proceedings are in nature of a suit (Bansi Lal v. Collector of Saharanpur (4 AWM 88).
"The meaning to be attached to the word ' award' under Section 11 and its nature and effect must be arrived at not from the mere use of the said expression in both instances but from the examination of the provision law relating to the Collector's proceedings culminating in the award.
The consideration to which we have referred satisfy us that Collector acts in matter of enquiry and valuation of the land only as an agent of the Government and not as a judicial officer."
9. The legal character of award made by Collector in terms of Section 12 of the Act was constituency by the Indian Supreme Court in Raja Harish Chandra Rao Singh v. The Deputy Land Acquisition Officer and another (AIR 1961 SC 1500). The observations contained in para 5 of the report is relevant which is reproduced as followed:- .................. It is relevant to bear in mind the legal character of the award made by the Collector under Section 12. In a sense it is a decision of the Collector reached by him after holding an enquiry as prescribed by the Act. It is a decision, inter alia, in respect of the amount of compensation which should be paid to the person interested in the property acquired; but legally the award cannot be treated as a decision; it is in law of her or tender of the compensation terminated by the Collector to the owner of the property under the acquisition. If the owner accepts the offer no further proceeding is required to be taken; the amount is paid and compensation proceedings are concluded. If, however, the owner does not accept eh offer Section 18 gives him the statutory right .Of having the question determined by Court, and it is the amount of compensation which the Court may determine that would bind both the owner and the Collector. In that case it is on the amount thus determined judicially that the acquisition proceedings would be concluded. It is because of this nature of the award that the award can be appropriately described s a tender or offer made by the Collector on behalf of the Govt. To the owner of the property for his acceptance."
(emphasis underlined)
10. The form of award by Civil Court and its nature has been given in Section 26 of the Act, which is reproduced as follows:- [126. Form of awards.- (1) Every award under this Part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of Section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same subs ctio i, together with the grounds of awarding each of the said amounts].
[(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2, clause (2), and Section 2, clause (9), respectively, of the Code of Civil Procedure, 1908] The perusal of the above provision shows that only the award specifying the amount awarded under sub-section (1)' of Section 23 including the amounts (if any) awarded under each other clauses of the same section with grounds (reasons) of awarding each of the said amounts shall be deemed to be the decree and the statement of grounds of every such award, a judgment within the meaning of Section 2, clause (2) and Section 2, Clause (9) of CPC respectively.
Any order passed by Court short of the requirements of sub-section (1) of Section 26 shall not be deemed to be a decree.
1.1. The ratio deducible from the above case-law can be summarized as follows:-
(1) The proceedings by the Acquisition Officer under Section 11 of the Act are not the judicial proceedings out inquiry. Such officer is not a judicial officer but an agent of the Government.
(2) The Award passed by the Collector is an offer, tender nor a legal decision.
(3) The proceedings under Section 18 before the Civil Court is a special proceedings and such proceedings are in nature of a suit.
(4) The proceedings before the Court is not an appeal against the award.
(5) The Award by the Civil Court is to be deemed to be a decree.
(6) Every order short of requirement of sub-section (1) of Section 26 is not an award.
13. On the above analysis of the matter, the proceedings of the Court under Section 18 of the Act is not appellate proceedings against the proceedings of the Collector culminating in "award" which is an offer. The execution proceedings for realization of the amount awarded by Land Acquisition Officer cannot be taken before the Court under the cover of ar order rejecting the reference on the principle of merger of order/decree, such principle is applicable where the order passed by original Court is appealed and the appellate authority passes an order, the order cf original authority disappears and merges in order of appellate authority, the order in existence is that of the appellate authority. The impugned under thus legal, proper and unexceptional.
As a consequence thereof, the invocation of the principle of merger in the instant case is misconceived, therefore, the appeals were dismissed in limine, with costs.
These are the reasons for short order announced on 6.5.2003.