WAPDA THROUGH ITS CHAIRMAN, LAHORE Versus AURANGZEB KHAN

1. GHULAM SAFDAR SHAH, C. J.---- This appeal by WAPDA, filed under section 54 of the Land Acquisition Act, 1894 (hereinafter called the Act), is directed against the decree of Additional District Judge, Haripur (Hazara) dated 5-3-1973, passed by him on a reference made to him by Collector under section 18 of the Act at the instance of respondents, whereby he enhanced the amount of compensation awarded to them by Collector.

2. The learned counsel for respondents has raised a preliminary objection to the maintainability of this appeal saying that WAPDA, in so far as the scheme of the Act is concerned, would be a stranger to the proceedings and thus would have no right to come in appeal to this Court against the decree of Additional District judge. In support of his objection, the learned counsel has referred to quite a few judgments of the superior Courts of Indian sub-continent. But the learned counsel for appellant has, in view of the manifold amendments brought about in the Act, attempted to distinguish these cases with a view to showing that his appeal would be competent.

3. A perusal of the case-law on the subject would show that until Partition, the consistent view of various High Courts has been that a company/local authority would have no right to come in appeal against the decree of a District Judge passed by him on a reference made to him by Collector under section 18 of the Act. The earliest judgment on the point, which could be made available to us by learned counsel for respondents, is from Calcutta High Court in the case of Municipal Corporation of Pabna v. Jogendra Narain Baikut (4 I C 382). And in-there the principle of law laid down is as follows:-

4. "A Company or corporation for whose benefit any land may be acquired is not a necessary party in the proceedings, but the Secretary of State is a necessary party. Under section 50 of the Land Acquisition Act such a company or local authority may appear for the purpose of watching the proceedings; or assisting the Secretary of State, but it has not the power to ask for a reference under section 18, nor does the Act give it the right of appeal."

5. A somewhat similar principle would be found in the case of Faqir Chand v. Municipal Committee, Hazara ((1913) 47 P R 225). In that case, the land of Faqir Chand was acquired by Collector for the use of Hazro Municipal Committee. And when on a reference made to him by Collector under section 18(3) of the Act, the District Judge delivered his award. Faqir Chand went in appeal to the Chief Court of Punjab, although in-there he omitted to implead the Secretary of State as respondent. The body of judgment would show that on 6th June 1912, the Secretary of State was, by order of the Court, brought on record as respondent. But on this date the appeal had become barred by limitation. When the appeal was taken up for hearing the learned counsel for respondent questioned its maintainability saying that Municipal Committee Hazro was a stranger to the proceedings and since the only necessary respondent, namely, Secretary of State, had not been impleaded, there would be no appeal before the Court, especially when the Secretary of State was brought on record as respondent after the prescribed period of limitation. This contention, was, notwithstanding the ingenious arguments of the learned counsel for appellant, accepted by learned Judges of the Division Bench who in consequence, dismissed the appeal with these observations:

6. "To our mind, the case is the same as it would have been had the appellant entirely omitted mention of any respondent, for, though he made the Municipal Committee of Hazro a respondent, it is not denied that under no possible circumstance could a right of appeal in this case have lain against that Committee. In all cases when a reference under section 18 of the Land Acquisition Act, 1894, is made to the Court, the objector is the plaintiff and (when the objection is to the area of the land, or as here to the amount of compensation) the Secretary of State is the defendant (see Exra v. Secretary of State I L R 30 Cal. 36 (89). In point of fact, though the conduct of the proceedings in the lower Court were entrusted by the Collector to the Municipal Committee, the defendant was actually the Secretary of State and Mr. Pestonji was oblighed to concede that the Municipal Committee of Hazro had no locus standi (except possibly, as the Agent of the Secretary of State) in the dispute between the parties."

7. This decision, to our mind, would appear to be rather weighty, for even though Faqir Chand was an `interested person' within the meaning of the Act and thus his right to come in appeal to High Court could not be questioned, all the same his appeal was dismissed, as he had failed to implead as respondent the Secretary of State who, according to their Lordships, was the only necessary party.

8. The next decision is from Lahore High Court, in the case of Collector and Chairman, District Board, Gujranwala v. Hira Nand (A I R 1929 Lah. 10). The facts of the case were that after the usual proceedings before Collector, he delivered his award. But on an application made to him by land-owners, he referred the case to District Judge for his decision. It seems that the learned District Judge accepted the objections of land-owners against the amount awarded to them by Collector and in consequence enhanced the amount of com pensation. Feeling aggrieved of his order, the Chairman, District Board, Gujranwala went in appeal to High Court stating in the heading of appeal as if it had been filed both by him and Collector. The body of judgment would, however, show that when the learned counsel for appellant bad to concede, under the stress of case-law against him, that his client, namely Chairman, District Board, Gujranwala had no locus standi to come in appeal, he changed his strategy and argued that the appeal in question should be deemed to have been filed by Collector. But unfortunately for him, it was discovered that the Collector had given him no power of attorney for that purpose and thus his appeal was found to be incompetent and dismissed as under:-

9. "Mr. Niaz Mahomed then resiled from his original position and argued that as the party really affected by the award of the District Judge was the District Board which had to pay the compensation, it was competent to appeal. But the land is acquired by the local Govern ment, and this being so section 79, Civil Procedure Code comes into play, which lays down that suit by or against the Government shall be instituted by or against the Secretary of State for India-in-Council. This rule must apply to appeals also. We, therefore, find that the appeals have been filed by a person not competent to do so Mr. Niaz Mahomed prayed for permission to have the power of attorney signed by the Collector which, for obvious reasons, we refused to grant."

10. Nihal Chand and others v. District Board, Mianwali (A I R 1936 Lah. 564), is another case on the point. Although in-there the proceedings were remanded to learned District Judge for the correction of his award with observations that if the appellant was still dissatisfied he might again come in appeal to High Court, however, the finding given in regard to the competency of appeal filed by the party, for whom the land had been acquired by Collector, was that it was incompetent. And we would like to quote the following dictum from that judgment:

11. . . . . The third point, however, has more force. It appears clear from a reading of the Act and of the authorities, namely, Fakirchand v. Municipal Committee, Hazro (59 P R 1913) and Municipal Corporation of Pabna v. Jogendra Narain (13 C W N 116) that the only party to an appeal of this kind and to the proceedings before the learned District Judge, where the question is as to the amount of compensation or of the area involved in the acquisition, is the Secretary of State through the Collector. The learned counsel for the appellants has endeavoured to contend that the party for whom the land is acquired is also a proper party, and he rests his contention on section 50 of the Act. He contended that the substantial party is the party for whom the land is being acquired and who is responsible fur the costs and the amount of the compensation to be paid to the claimant. Even from section 50, however, it is clear that the party for whom the land is acquired can only assist the Collector on the question of the amount of compensation to be paid to the claimant. It cannot apparently assist the Collector on the question of the area acquired though this may affect the amount of the compensation. It, therefore, appears to me that section 50, far from supporting the contention of the learned counsel, is really, when properly read, against him, and the Secretary of State through the Collector was therefore a necessary party to this appeal as well as to the proceedings before the learned District Judge."

12. This view has, after the Partition of sub-continent, commended itself to High Courts in Pakistan. And in this respect, two judgments were brought to our notice; one from Dacca High Court in the case of Pabna Electric Supply Co. Ltd. v. Kaliprashad Bhattacharyya and another (P L D 1960 Dacca 461), and another from Karachi Bench of defunct West Pakistan High Court in the case of Kasimbhai and others v. Deputy Commissioner, Dadu and others (P L D 1968 Kar. 126). The facts in the Dacca case were that a piece of land had been acquired by Collector for the use of Pabna Electric Supply Co. Ltd. And after the usual pro ceedings had been gone through before Collector and District Judge, the company went in appeal to High Court. But the appeal was dismissed as incompetent, for in the absence of Collector, who evidently had not appealed, the company was held to have no locus standi, as in the Scheme of the act it was a complete stranger.

13. The facts in the case of Karachi were somewhat interesting, in that a piece of land had been acquired by Collector for the use of WAPDA, but after the District Judge, upon a reference made to him under section 18 of the Act, delivered his award the land-owners went in appeal against it to High Court. During the pendency of appeal in question an application was made on behalf of WAPDA under section 151, C. P. C. praying that it be brought on record as respondent. But the application was opposed by land owners contending that in the scheme of the Act WAPDA would be a stranger to the proceeding, and thus the application filed by it would be incompetent. The position taken by the learned counsel for WAPDA was that his clients would be "interested persons" within the meaning of the Act, inasmuch as land had been acquired for their benefit, and considering that they alone would be liable to pay to land-owners the amount of com pensation, they would be necessary parties to the proceedings, moreso when the case was one of patent injustice, as the District Judge had enhanced the amount of compensation from 3 paisas per sq. ft. to 50 paisas per sq. ft. and yet the Government had failed to appeal against his judgment. In support of his contention, the learned counsel relied on a passage from the Commentary on Compulsory Acquisitions of Land by Om Prakash Aggrawala (1950-Edition), which is to the following effect:-

14. "The interest of the local authority must be subservient to that of Government and it would be dangerous to allow private individuals, local authorities and companies to interfere in the proceedings under Part III of the Act. Under such circumstances if Government declines to prefer an appeal the local authority cannot be permitted to do so except in cases of patent injustice."

15. The learned Judge, who decided that case, found himself substantially in agreement with the view expressed in this passage, for evidently it eras in accord with the consistent view taken by High Courts on the subject. But he did not agree with the learned author (as he had given no reason to support his contrary view) that in cases of "patent injustice" a local authority might be permitted to file appeal against the award of District Judge. In point of fact, the learned Judge referred to another passage from the Treatise of one J. P. Singhal (to the addition of which, however, he has made no reference), and we would like to reproduce that passage as in-there this learned author seems to have pinpointed the reasons for which a party, for whom land is acquired under Act, is said to have no locus standi to go in appeal against the order of District Judge:

16. "No local authority or company is compelled to proceed under the Land Acquisition Act. If it can procure any land which it is desirous to acquire more cheaply by private negotiations, it is entirely at liberty to do so, but if it elects to set in motion the special powers given to Government for public objects it can expect not higher privileges and powers than those given to Government, itself. Thus the interest of the local authority must be subservient to that of Government and it would be dangerous to allow private individuals, local authorities and companies to interfere in a proceeding under Part III of the Act. Under such circumstances if Government declines to prefer an appeal the local authority cannot be permitted to do so except in cases of patent injustice."

17. It would be noted that in the last sentence of this passage, the learned author also has reiterated the same view as expressed by Om Prakash Aggrawala that in cases of "patent injustice" a local authority might be permitted to go in appeal to High Court against the order of District Judge. But again the learned Single Judge was not impressed with this part of his opinion, as cases of "Patent Injustice" were not explained by him, nor he had -supported his view by reference to any principle or case-law.

18. We, on our part, therefore respectfully agree with the learned Judge, for in the view that he has taken he is supported by an unbroken chain of authorities beginning with the judgment of Calcutta High Court in the case of Municipal Corporation of Pabna v. Jogendra Narain Raikut. It seems to have escaped the notice of learned authors that the Act, with which they were dealing, was in the nature of a special enactment and thus it was not open to them to engraft on its provisions the general principles of Civil Procedure Code. In a case coming before Privy Council. Rangoon Potatoung Co. Ltd. v. The Collector, Rangoon (I L R 40 Cal. 21), their Lordships had the occasion to deal with a similar question, although in a slightly different context, and this s what they had to say on the subject:---

19. " . . . A right of appeal from any decision of any tribunal must be given by express enactment. A special and limited appeal is given by the Land Acquisition Act from the award of "The Court" to the High Court. No further right of appeal is given. Nor can any such right be implied."

20. Dealing with an argument based on section 54 of the Act, namely:-

21. "Subject to the Provisions of the Code of Civil Procedure applicable to appeals from original decrees, an appeal shall lie to the High Court from the award or from any part of the award of the Court in any proceedings under this Act."

22. Their Lordships observed that:-- "they cannot accept the argument or suggestion, that when once the claimant is admitted to the High Court, he has all the rights of an ordinary suitor, including the right to carry an award made in an arbitration as to the value of land taken for public purposes up to this Board as if it were a decree of the High Court made in the course of its ordinary jurisdiction."

23. This principle would equally apply to an award/decree of a District Judge, passed by him on a reference made by Collector under subsection (3) of section 18 of the Act, for in the proceedings in question he cannot be said to be exercising ordinary jurisdiction. The legal position is too well established to need any reference to case-law (although in the above passage quoted by us the Privy Council has restated the said principle) that a right 'of appeal from any decision of any tribunal must be given by express enactment falling which it cannot be implied. It seems to us that in the two passages quoted by us from the Treatises of Aggrawala and Singhal, the learned authors were aware of this principle. But even so, they came to put a rider on their view saying that in cases of patent injustice a person, for whom land is acquired under the Act, might be permitted to go in appeal to High Court against the award of District Judge. Quite independently; of the fact that in support thereof the authors have furnished no reason whatever, we, on our part, cannot conceive of any case of patent injustice arising from land acquisition proceedings, for, and here again we would like; to quote from the foregoing passage from the treatise of Singhal:--

24. "No local authority or company is compelled to proceed under the Land Acquisition Act. If it can procure any land which it is desirous to acquire more cheaply by private negotiations, it is entirely at liberty to do so, but if it elects to set in motion the special powers given to Government for public objects it can expect no higher privileges and powers than those given to Government itself. Thus the interest of the local authority must be subservient to that of Government and it would be dangerous to allow private individuals, local authorities and companies to interfere in a proceeding under Part III of the Act."

25. The learned author seems to have correctly analysed the scheme of the Act. And we would agree with him. After all, if a local authority/company has, instead of acquiring land for itself through private negotiations, chosen to take advantage of the special powers given to Government for public purposes, then it should also be prepared to suffer the corresponding disadvantages. It would therefore be obvious that in proceedings under the Act, the provisions of the Code of Civil Procedure, in so far as they have been judicially construed to concede to a person (although not a party to the proceedings) a right of appeal against an order/decree by which his interest has been adversely affected, would have no application, for they would be inconsistent with the scheme of the Act. And it is precisely for this reason that Legislature has, in section 53 of the Act, expressed itself as under:---

26. "Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under this Act."

27. The learned counsel for WAPDA, however, argued that the judgments cited by the other side are distinguishable, in that the Act has since been amended conceding to his clients the right of appeal against the decree of District Judge. In support of his contention, the learned counsel referred to subsection (5) of section 9, section 11, subsection (3) of section 18, clause (c) of section 20, section 22-A, section 31 and subsection (2) of section 50 of the Act. But before we consider his submission, it would be proper to survey the substance of these provisions.

28. These provisions, it may be pointed out, were introduced in the Act by West Pakistan Ordinance XLIX of 1969 conceding for the first time to the Department of Government/local authority/company the right to be served with notice by Collector and District Judge, in regard to the proceedings pending before them. But with this difference, of course, that if in response to a notice served on them under subsection (5) of the Act, they elect, through their authorised representative, to appear in the proceedings, the latter shall become a party thereto. There is no corresponding provision in clause (c) of section 20 of the Act, by which a District Judge is required to issue similar notice to the Department of Government, local authority or company. But even so, the learned counsel relied on subsection (5) of section 9 of the Act in which the expression used is "such authorised representative shall be a party to the proceedings". However when we questioned him as to why these words were omitted from clause (c) of section 20, he was unable to clear our doubts.

29. We, on our part, are of the firm view that by adding subsection (5) to section 9 and clause (c) to section 20 of the Act, all that the West Pakistan Ordinance XLIX of 1969 had intended to achieve was to magnify therein the existing legal position contained in subsection (2) of section 50 of the Act, namely:--

30. "In any proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidences for the purpose of determining the amount of compensation:

31. For, it is axiomatic that only a party to the proceedings is entitled to notice and to adduce evidence. And considering that under subsection (2) of section 50 of the Act, this right had been conceded to a company/local authority, without mentioning in there, of course, that it would be a party to and entitled to receive notice of the proceedings, the Legislature moved into the matter and by Ordinance XLIX of 1969 added subsection (5) to section 9' and clause (c) to section 20 of the Act as a measure of abundant caution. It is significant, however, that the words of former subsection do not occur in clause (c) of section 20 of the Act. And hence it would be impermissible to import into it the said words, particularly when notice is taken of the fact: that both these sections were amended by the same Ordinance.

32. The learned counsel, when he was faced with this difficulty, argued that once a company/local authority becomes, through its authorised representative a party to the proceedings before Collector, within the meaning of sub section (5) of section 9 of the Act, when the same would be the position in the Court of District Judge. But we were not impressed. We have already mentioned that by the unambiguous language used in subsection (5) of section 9 of the Act, a company/local authority would, through its authorised representative, be a party to the proceedings before Collector. But there are no words in clause (c) of section 20 which would lead us to the same conclusion.

33. It seems to us that by making this submission the learned counsel has, been unable to distinguish the nature of proceedings before Collector from those before the District Judge-evidently disregarding the fact that Collector is not a Court within the meaning of clause (d) of section 3 of the Act-See Durga Das Rukhit and another v. Queen-Empress (I L R 27 Cal. 821). To put it somewhat differently, a Collector, in the performance of his functions under the Act; would appear to be simply an inquiry officer charged with the duty to acquire land for public purposes, to ascertain its value and to deliver his award from which no appeal/revision would lie to any Court. The only remedy, which under section 18 of the Act has been provided to an `Interested person', is that if he is dissatisfied with the award of Collector he may file a written application before him requiring him to refer the matter to the Court of District Judge for the determination of his objections in regard to the measurement of land, the amount of compensation, the persons to whom ii, is payable or the apportionment of compensation amongst the persons interested. It is true that by virtue of subsection (3), added to that section by Ordinance XLIX of 1969, the Provincial Government has been given the, right to refer the matter to Court within a period of six months from the date of announcement of the award, provided it has not accepted the award. But then a company/local authority has not been given any right. It would therefore follow that if the Government accepts the award or else does not refer the matter to Court under section 18(3) of the Act, a company/local authority would have no such right in view of the express bar contained in proviso to subsection (2) of section 50 of the Act, which reads:-

34. " . That no such local authority or company shall be entitled to demand a reference under section 18."

35. To insist, therefore, that a company/local authority shall have the right to appeal against the decree of District Judge would be evidently fallacious for if it has no right to seek a reference to the Court of District Judge, it cannot possibly claim the higher right of appeal.

36. Section 11, section 22-A and subsection (2) of section 31 are in the nature of consequential amendments, introduced in the Act, in view of the addition of subsection (5) to section 9 and clause (c) to section 20 of the Act by Ordinance XLIX of 1969, and thus they would need no discussion. The learned counsel, however, argued relying on a judgment of Supreme Court of Pakistan in the case of H. M. Saya & Co., Karachi v. Wazir Ali Industries Ltd. Karachi and another (PLD 1969 SC 65), that since the land in this case has been acquired for his clients, who alone would be liable to pay to respondents the amount of compensation, their appeal would be competent, as by the decree of learned Additional District Judge their interest has been adversely affected. We are afraid, there is no force in this contention. A perusal of the judgment .of Supreme Court would show that the appeal in that Court had arisen out of a suit proceedings instituted by H. M. Saya & Co., Karachi against Habib Bank Ltd., without impleading therein as defendants, Messrs Wazir Ali Industries Ltd. who, according to the finding of Supreme Court, were .a necessary party. It seems that during the pendency of their suit H. M. Saya & Co. were able to secure from trial Court an order of interim injunction against Habib Bank Ltd. But since by the order in question the interest of Messrs Wazir Ali Industries Ltd., Karachi was adversely affected, they went in appeal against that order to the Court of District Judge who admitted the appeal and stayed the operation of that order. Being aggrieved, H. M. Saya & Co. went in revision to High Court contending, inter alia, that since Wazir Ali Industries Ltd., Karachi were not a party to their suit, their appeal before District Judge would be incompetent and the consequent order passed by that Court without jurisdiction. The High Court was obviously not impressed with this contention and dismissed their revision application. As a last resort, H. M. Saya & Co. went in appeal to the Supreme Court, but their appeal was dismissed with these observations:--

37. " . We are satisfied that Saya & Co., deliberately omitted to make them parties with the intention of avoiding a contest. They knew fully well that the reliefs sought were really directed against Wazir Ali Industries Limited and their bankers. A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. This Court ought not to act on the principle that every proceeding is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the Civil Procedure Code deals with appeals from decrees and section 104 deals with appeals from orders. The provisions do not in terms say, who is entitled to prefer an appeal. The Code, however, lays down that it is the decree or the order that has to be appealed against. If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceedings."

38. We respectfully are bound by this dictum. But do not see as to how would it help the appellants. The appeal before their Lordships of Supreme Court had originated from a civil suit, to which all the provisions of the Code of Civil Procedure would be applicable. And thus the ratio of that judgment cannot be imported into this case, which is covered by a special enactment. We have already dealt with this point in sufficient detail, and consequently would avoid being drawn into the same argument again, as it would serve no useful purpose.

39. Quite independently of this position, the appellants are faced with another formidable difficulty arising out of the amendment of the Act by N.-W. F. P. Ordinance XI of 1972. By section 3 of this Ordinance a new section 18-A was added to the Act, which for the sake of facility may be reproduced:-

40. "Abatement of reference and appeals.-(I) Any reference made by or on behalf of the Provincial Government in pursuance of subsection (3) of section 18 and pending in the Court shall forthwith abate.

(2) Notwithstanding anything to the contrary in this enactment, any appeal by or on behalf of the Provincial Government arising out of the reference made under subsection (3) of section 18 and pending in the High Court or Supreme Court shall forthwith abate."

41. By section 4 of the same Ordinance the existing subsection (1) of section 31 was also substituted by a new subsection which reads as under :-

42. "(1) When the Collector has made an award under section 11-

(a) If the person interested entitled to compensation under the award accepts the award and intimates his acceptance in writing to the Collector before the expiry of the period prescribed in subsection (2) of section 18 for making an application to the Collector for referring the award to the Court or if the period specified in subsection (2) of the said section for making an application to the Collector for referring the award to the Court has expired and no such application or reference has been made, the Collector shall before taking possession of the land, tender payment of the full amount of compensation awarded by him to the persons entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in subsection (2).

(b) If the person interested entitled to compensation under the award objects to the award and an application has been made to the Collector, under subsection (1) of section 18 for referring the award to the Court, the Collector shall, before taking possession of the land, tender payment of the compensation awarded by him or the estimated cost of acquisition of such land as determined by the Collector of the District under subsection (1) of section 17 whichever is less, to the persons entitled thereto under the award and shall pay it to them unless prevented by some one or more of the contingencies mentioned in subsection (2):

43. Provided that no payment under clause (b) shall be made until the person entitled to compensation furnishes to the satisfaction of the Collector a security for refund of the amount, if any, which may subsequently be found to be in excess of the compensation awarded to him by the Court."

44. Now by reading these two provisions together, it is clear that all references, which the Provincial Government have made to the Court of District Judge, under subsection (3) of section 18 of the Act, and the con sequent appeals filed by it against the decress of District Judge, have, on the coming into force of the N: -W. F. P. Ordinance XI of 19 72, abated as also that now the Provincial Government would have no right to refer to the Court of District Judge the award of Collector for his decision. In other words, subsection (3) of section 18 of the Act, by which this right was conferred on Provincial Government by West Pakistan Ordinance XLIX of 1969, would be no more in the field. And consequently the only right now left in the Government would be to appeal to High Court against the decree of District Judge passed by him on a reference made to him by Collector in pursuance of an application filed before him by an interested person.

45. Even during the time, when the West Pakistan, Ordinance XLIX of 1969; was in force, a company/local authority had no right to seek a reference to the Court of District Judge, although a right of this kind was, by the said Ordinance, given to Provincial Government which alone, under the scheme of the Act, was a party to acquisition proceedings in a case in which land was acquired by it for the use of a company or local authority. The fact that of this right too the Provincial Government has been deprived by virtue of N. W. F. P. Ordinance XI of 1972 it would be obvious that for practical purposes the scheme of the Act, as it was originally enacted, has been restored. And consequently the various judgments cued before us by the learned counsel for respondents would fully apply to the facts of this case.

46. In view of this discussion, we are entirely satisfied that this appeal by WAPDA is wholly incompetent and it is dismissed. In view of the rather uncertain legal position however we would direct that the parties would bear their own costs.

47. S. A. H. Appeal dismissed.