RAN-UD-DIN Versus MUHAMMAD ASLAM

This revision petition arises out of a reference made under section 30 of the Land Acquisition Act on an application filed by Abdus Sattar deceased predecessor-in-interest of respondents Nos. 1 to 11. The Court referred the matter back to the Collector for fulfilling all the necessary formalities and re-submitting the reference. The reference was re-submitted before the Court on 4-3-1991 and notices were issued to the parties for 30-3-1991. On that date, only Abdul Sattar deceased/applicant appeared before the Court. A proclamation was published in the daily 'Awam', Faisalabad for 4-4-1991 for appearance of the petitioner and respondent No. 12 in the Court on 25-4-1991. A copy of newspaper was sent to the respondent vide the postal certificate dated 4-4-1991. The petitioner as well as respondent No. 12 failed to appear before the Court whereupon an order for ex parte proceedings was passed against them on 25-4-1991. The case was adjourned for 9-5-1991 and ex parte evidence was recorded. Then it was fixed for arguments on 20-5-1991 and ex parte decision was made on 28-5-1991.

2. Raheem-ud-Din petitioner filed an application for setting aside the ex parte decision on 10-7-1991 which was dismissed on 2-11-1991. He filed an appeal on 11-11-1991 before the District Judge which was returned on 25-5-1993 for filing it before the High Court under the provisions of section 54 of the Land Acquisition Act.

3. On the other hand, the respondent's learned counsel submits that by virtue of the provisions of section 54 of the. Land Acquisition Act, an order to set aside the ex parte decision arising out of proceedings under section 30 of the Act was appealable before the High Court and not the District Judge. In this connection he places reliance on the case of Malik Muhammad Ishaq v. Land Acquisition Collector, Lahore and 7 others (PLD 1978 Lahore 458).

4. After hearing learned counsel for the parties, I find that the arguments of the petitioner's learned counsel carry considerable weight. The provisions of section ;4 of the Act can be invoked to challenge the award or any part of the award. In the present case the award was announced on 7-7-1977 which was not challenged by any party. After about 13 years Abdus Sattar deceased, predecessor-in-interest of respondents Nos. 1 to 11, filed a petition under section 30 of the Act claiming apportionment of the compensation for land measuring 1 Kanal and 3 Marlas. In his application Abdus Sattar deceased did not challenge any part of the award but merely claimed a certain share in the compensation assessed under the award. An order passed under section 30 of the Act is to be treated as a decree and not an award so as to be appealable under the provisions of section 54 of the Act. The above view finds support from the judgment in the case of Krishna Udayan v. Chinna Pillai (AIR 1948 Mad. 416) relied upon by the petitioner's learned counsel. A relevant portion of the said judgment is reproduced below:

"It is contended on behalf of the petitioner that in respect of proceedings under section 30, Land Acquisition Act the only remedy open to a claimant is to treat the order against him as part of the award and appeal under section 54, Land Acquisition Act to this Court, and that Order 9, R. 13, Civil P.C.. does not apply to such proceedings. This contention cannot be accepted in view of the decision of a Bench of this Court in ILR 1940 Mad. 791. There, it was held that a Subordinate Judge appointed by the Provincial Government under section 3(d), Land Acquisition Act to decide a dispute referred under section 30 of the Act is a Civil Court and that the decision therein is a decree and an appeal lies from such decision as an appeal against a decree. It is there observed that in the light of the Privy Council decision in 45 Mad. 320, an order determining a reference under section 30 is to be regarded as a decree and not as an award."

It was further held that an order rejecting the application under Order IX, Rule 13 of the C.P.C. was appealable before the District Judge. In Raghunathdas Harjivandas v. District Superintendent of Police, Nasik (AIR 1933 Bombay 187) it was held that an order passed under section 30 of the Act for apportionment of the compensation was appealable as a decree and not as an award. It was further held that a decision on a disputed question of title between rival claimants as regards the amount of compensation was a decree appealable in the ordinary manner laid down in the Civil Procedure Code. The case of Malik Muhammad Ishaq relied upon by the respondent's learned counsel proceeds on distinguishable facts and does not appear to be relevant to the controversy involved in the present case. The precise question regarding competence of the appeal, either before the High Court or District Court, was neither agitated nor decided in the said case. Therefore, the learned Additional District Judge appears to have acted illegally and with material irregularity in passing the impugned order returning the appeal to the petitioner for filing it before the High Court.

5. For the foregoing discussion, this revision petition is accepted, the impugned order dated 25-5-1993 passed by the learned Additional District Judge is set aside leaving the parties to bear their own costs. The learned Additional District Judge shall treat the petitioner's appeal as pending and decide it on merits in accordance with law.

H.B.T./R-145/L ?????????????????????????????????????????????????????????????????????????????????? Revision accepted.