DEPUTY COMMISSIONER, KARACHI (SOUTH) Versus DIRECTOR, TRAFFIC ENGINEERING BUREAU

This is a reference under section 18 of Land Acquisition Act, 1984

2. The facts giving rise to this reference may be stated briefly as under:‑

A portion of plot, bearing survey No. CL‑5/23/2 situated in Civil Lines Quarters, Karachi in the posh locality of Saddar in front of Hotel Metropole, was acquired by K.D.A. Traffic Engineering Bureau for public purpose namely channelisation/installation of traffic signals under section 4 of the Land Acquisition Act. Consequently a notification under section 6 of the said Act was issued invoking the provisions of section 17(1) and in exercise of the provisions of section 17(4) of the Act the Government directed that provisions of section 5 and 5‑A of the said Act shall not be applicable to this case. The Government then appointed Assistant Commissioner (South) Karachi to perform the function of the Collector for the proceedings to be taken in respect of the land in question and also directed him under section 7 of the said Act to take steps for acquisition of the land in question. The Collector entered upon the reference and after taking into consideration the objections filed by the interested persons gave his award whereby he awarded compensation to the owner at the rate of Rs.5,800 per sq. yard. He also allowed the owner 15$ statutory allowance and thus the total compensation came to Rs.14,82,207.40. Traffic Engineering Bureau of the K.D.A. made an application to the Collector requesting him to make a reference to this Court on the grounds, inter alia, 'that the quantum of compensation determined by the Collector was very high and that he had not taken into consideration the objection of the applicant that it was not going to earn anything from this plot which was acquired purely for the benefit of the public. Consequently the Deputy Commissioner South Karachi made a reference to this Court under section 18 of the Land Acquisition Act. On the last hearing I called upon the Advocate for the applicant at whose instance this reference is made to satisfy the Court as to how this reference was competent in view of the prohibition contained in the proviso to subsection (2) of section 50 of the Land Acquisition Act.

3. Mr. Dasti M. Ibrahim Advocate who appeared on behalf of the applicant in reply submitted that section 18 (3) of the Land Acquisition Act provided that such a reference was maintainable. I do not find myself in agreement with the contention of Mr. Dasti M. Ibrahim. It will be useful to reproduce section 18 of the Land Acquisition Act.

"18.‑(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested.

(2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made:‑

(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;

(b) 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 shall first expire.

(3) Notwithstanding anything to the contrary contained in section 21, the Provincial Government may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award; provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for inquiry into and determination of the objection against the award."

4. It may be clarified that subsection (3) of section 18 gives right only to Provincial Government to refer the matter to the Court if it does not accept the award within six months of the date of the announcement. This section does not in any way confer any right upon a local authority for whose benefit the land has been acquired to seek a reference under section 18. As against this, proviso to subsection ( 2 ) of section 50 ) of the Land Acquisition Act which reads as under, clearly prohibits the making of any reference by a local's authority under section 18:‑

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

Hence I am quite clear in my mind that d local authority or a company was not entitled to demand a reference under section 18 of the Land Acquisition Act.

5. Similar situation had arisen in the recent case of Pir Khan v. Military Estate Officer, Abbottabad reported in PLD 1987 SC 485, where it was held by the Supreme Court as follows:‑

"From a perusal of the above provisions, it is manifest that section 50(2) expressly and in terms controls section 18 and takes away the right from the local authority or company for whom the land is being acquired to demand a reference under section 18. According to subsection (2) of section 50 a local authority or a company is only conferred the right to appear in proceedings before the Collector or the Court and adduce evidence for the purpose of determining the amount of compensation but a reference under section 18 by them is barred (vide the proviso to subsection (2) of section 50).It is, therefore, manifest that whatever may have been the object of the law, in view of plain language of section 50(2), there is no alternative ,but to give effect to it. Hence, so far as a local authority or a company is concerned, the award made by the Land Acquisition Collector becomes final; it has neither the right to ask for a reference under section 18, nor on a parity of reasoning, a right to prefer an appeal against a decision made upon a reference under section 18 of the Act by the Court."

6. In their above decision the Supreme Court had relied upon the case of Pabna Electric Supply Co. Ltd. v. Kaliprashad Bhattacharyya and another reported in PLD 1960 Dacca 461, Kasimbhai and another v. The Deputy Commissioner, Dadu and others reported in PLD 1968 Kar. 126 and WAPDA through its Chairman v. Aurangzeb and others reported in PLD 1975 Pesh.

1. The Supreme Court distinguished their previous decision in the case of S.M. Saya & Co. .Karachi v. Wazir Ali Industries Limited reported in PLD 1969 SC 65.

8. It was then submitted by Mr, Dasti M. Ibrahim Advocate that since the Provincial Government can make a reference under section 18 (3) of the Land Acquisition Act therefore this reference which was made by the Deputy Commissioner South may be treated as a reference by the Provincial Government and therefore is maintainable under section 18 (3) of the Land Acquisition Act. There is no substance in this argument as well. Subsection (3) of section 18 reads as under:

"Notwithstanding anything to the contrary contained in section 21, the Provincial Government may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award; provided that the Court shall not entertain the reference unless in 'its opinion there is a prima facie case for inquiry into and determination of the objection against the award."

This subsection was added by the Land Acquisition (West Pakistan Amendment) Ordinance (49/69). Prior to this amendment the consensus of judicial decisions was that neither the Government nor the local authority nor the company on whose behalf the land was acquired has any locus standi to challenge the award, because the scheme of the Act appears to be that the State represented by the Collector was expected to safeguard the interest of the Local authority or the company for whose purpose the land is acquired. In the following cases it was clearly held that neither the Government nor the Company for whose benefit the land was acquired could claim a reference under section 18 of the Land Acquisition Act.

(1) BISN Co. v. Secretary of State reported in ILR 38 Cal 230.

(2) Ezra v. Secretary of State, ILR 1930 Cal. 36.

7. Since in India no such amendment has been made as was made in West Pakistan which now includes the area of whole of Pakistan, the law there even after 1969 continues to be that the Government or the company for whose benefit the land was acquired had no right to ask for a reference under section 18. This is clear from the following Indian decisions (1) AIR 1972 Andra Pradesh 362. (2) AIR 1975 Oressa 90. However, after the amendment referred to above, the law in Pakistan is that the Provincial Government can itself refer the matter to the Court within a period of 6 months from the date of the B award. There is an additional check‑)n such reference and it is that the Court can summarily dismiss the reference if it is of the opinion that there is no prima facie case.

8. This reference has not been made by the Provincial Government directly to the Court. The Provincial Government had not even asked the Deputy Commissioner to make a reference against the award. It must be remembered that while entertaining a reference under section 18, this Court would be a Court of limited jurisdiction and is bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its jurisdiction. Where the jurisdiction is dependant upon the existence of certain facts or circumstances, it is its obvious duty to see that those facts and circumstances exist to invest it with jurisdiction. Where a Court derives its jurisdiction from the Statute that creates it and that Statute also defines the conditions under which that Court can function, it goes without saying before that Court assumed jurisdiction, it must be satisfied that the conditions requisite for its acquiring seisin of that matter had in fact arisen. The Court functioning under Land Acquisition Act being a Court of Special jurisdiction it is its duty to see that the reference under that Act is made to it by an authority competent to make a reference and that the reference relates to a matter which may be referred to it under that Act.

10. Reference in this connection may be made to Abdul Sattar v. Hameed Bibi reported in P L D 1950. Lah. 370, where it was held as follows:‑

"Therefore, the Court functioning under the Land Acquisition Act being a tribunal of special jurisdiction, it is its duty to see that the reference under that Act is made to it by an authority competent to make the reference and that the reference relates to a matter which can be referred to it under that Act. I agree with the observations of Beaumount C.J, with which Rajodhyaksha, J., agreed in Mahadeo Krishna Parkar v. Mamledar of Alibagh. AIR 1944 Bom. 200 that since the Collector has power to make a reference on certain specified conditions the Court is bound to satisfy itself that the reference made to it by the Collector complies with those conditions, so as to give the Court jurisdiction to hear the reference, because if the reference does not comply with the terms of the Act, then the Court cannot entertain it."

11. It may be clarified that I am not unmindful of the fact that a company or local authority on whose behalf the land is being acquired is a "person interested" within the meaning of section 3 (b) of the Land Acquisition Act if it has an interest in the lands that are the subject of acquisition, and it has, therefore, a right to demand a reference under section 18 of the Act, but for that interest only. The proper interpretation of the proviso to section 50 (2) is that it relates only to that subsection and makes it clear that a company or local authority has not been granted a power to demand a reference as to compensation by virtue of the power given therein to appear and adduce evidence before the Collector or Court on the subject. It does not, therefore, take away the rights which the company or the local authority might enjoy as claimants or persons interested under Section 18 of the Act.

12. The Deputy Commissioner has not made the reference on his own accord but he has made it quite clear in his reference that he I was making the reference in pursuance of an application received from the Directorate of Engineering Bureau K.D.A. Karachi under Section 18 of the Land Acquisition Act and therefore 'it cannot be said that the reference was made by the Deputy Commissioner on his own. Apart from this the Deputy Commissioner Karachi is not the Provincial Government. The right of making reference has been specifically given under subsection (3) to the Provincial Government. It is the Provincial Government alone which can make a reference and not the Deputy Commissioner.

13. I am, therefore, of the clear view that the reference is note competent. Hence I dismiss the same.

A . A . / D=24/ K Reference dismissed.