ARAB Versus PAKISTAN

This appeal is directed against the award, dated 1‑1‑1976 made by Mr. G.N. Qadri, retired District and Sessions Judge (respondent No.4) in respect of the land belonging to the appellants which was acquired by the Federal Government in 1972 (185/72) under rule 121(2) of Defence of Pakistan Rules 1971 and possession of which was obtained by the Federal Government on 30‑9‑1972. Under section 18 of Defence of Pakistan Ordinance, 1971, the following mode of procedure is laid down for payment of compensation to the owners of land which has been compulsorily acquired by the Federal Government.

(a) Where the amount of compensation can be fixed by an agreement, it shall be paid in accordance with such agreement.

(b) Where no such agreement can be reached, the Central Government shall appoint as Arbitrator a person who has been, or is qualified for appointment as, Judge of the High Court.

Since the compensation could not be settled through an agreement, the Central Government, in accordance with section 18(1)(b), appointed Mr. G.M. Qadri, retired District and Sessions Judge, as Arbitrator. Learned Arbitrator, after recording exhaustive evidence from both the sides, delivered his award on 1‑1‑1976. The appellants/owners have felt aggrieved from this award on various grounds taken in the memo of appeal but their main grievance is that the rate of compensation (Rs.5,000 per acre for cultivable land and Rs.3,000 per acre for uncultivable land) is far too inadequate. Eversince the admission of the appeal efforts were being made to trace the original record of the arbitration proceedings but it is now evident that the same is not traceable anywhere. Letter dated January 1988 from S.P. Anti‑Corruption, Sukkur, to the Registrar of this Court shows that this record was with them for sometime but the entire record was taken away by Deputy Assistant Military Estate Officer Cantonment, Karachi Circle, on 2‑1‑1976. On his part, the Military Estate Officer, Hyderabad Circle, Hyderabad Cantonment vide his letter, dated 12‑9‑1988 informed the Registrar of this Court that no original documents were available in his office.' Similarly, Assistant Commissioner and ALC Sukkur also informed the Registrar of this Court vide letter, dated 15‑6‑1988 that this record was not available with him either. According to Assistant Commissioner the record was with the Military Estate Officer which, vide letter, dated 12‑9‑1988, stated that no original documents were available with him. These were the only three agencies which could be expected to be in possession of the original record. The Arbitrator had admittedly returned all the record when he submitted his award. Now, in the absence of any record, it is not possible to hear the appeal on merits. In fact, both the learned counsel state that they would need the original record to prepare their briefs.

2. Learned counsel for the appellants has also raised an objection that the Federal Government had appointed Mr. G.N. Qadri as Arbitrator in violation of the qualifications laid down for him in section 18(1)(b) of Defence of Pakistan Ordinance, 1971 which provides that an Arbitrator must either have been a Judge of the High Court or must be a person who qualifies for such appointment. Since Mr. G.N. Qadri had not been a Judge of the High Court and since, having been retired from service, he was also‑not qualified for such appointment in future, he was, according to learned counsel, not competent to 'be appointed as Arbitrator. According to learned counsel, the award was liable to be set aside on this ground as well.

3. It appears to me that award cannot be sustained. In the absence of the original record of the proceedings before the learned Arbitrator, it is no possible, as conceded by both the learned counsel that no rational finding c be given on the award. The objection of the learned counsel for the appellant as to the disqualification of the Arbitrator to be appointed as such also appear to have force although it may be argued that having submitted to the appointment of Mr. G.N. Qadri as the Arbitrator and having appeared before him, the appellants are estopped from raising such objection. I would therefore set aside the award, dated 1‑1‑1976 given by MI.G.N. Qadri. The dispute shall now go before the Federal Government which shall of course first try to determine the compensation through agreement under clause (a) to section 18(1) of the Ordinance or, failing therein, shall proceed under clause (b) of the Ordinance and shall appoint a fresh Arbitrator for the purpose.

4. In view of the circumstances of the case, the parties are left to bear their own costs.

A.A./A‑1094/K Case remanded.