ZAKIR HUSSAIN Versus LAND ACQUISITION OFFICER/COLLECTOR, SUI GAS TRANSMISSION COMPANY LTD.
1. MUKHTAR AHMED JUNEJO, J: ‑‑ Petitioners Zakif Hussain and Mst. Kaneez Mansoora have invoked Constitutional jurisdiction of this Court against refusal by respondent No.1 to refer their applications to the concerned District Court under section 18 of the Land Acquisition Act.
2. Admittedly, the petitioners are owners of Revenue Survey Nos.125 to 128 of Deh Baran, Taluka Math, District Badin. Out of said land, Survey Nos.126;‑‑127 and 128 of Deh Baran were acquired by the Government at the expenses of Sui Gas Transmission Company Ltd. for a public purpose. Later on S. No. 1.25 was also acquired. Such Notification was issued under section 4 of the Land Acquisition Act but it was not received by the petitioners, as alleged by them: Petitioners admitted receipt of a notice, dated 16‑9‑1988 issued to them under section 9 of the Land Acquisition Act, showing that their land measuring 6.08 acres from S.Nos. 126 to 128 was acquired for being used by the Sui Gas Transmission Company Limited. Petitioners were required under said notice dated 16‑9‑1988 to appear before the respondent No. 1 on 30‑9‑1988. Petitioners received another notice, dated 12‑2‑1989 under section 9 of said Act in respect of S.No.125.
3. Admittedly on 5‑4‑1989 the petitioners were paid by the respondent No.1 Rs.13,96,550 in respect of the land acquired, and its crops. Petitioners claimed to have received the payment under protest. This payment was in consequence of the award dated 28‑3‑1989 which was not accepted by the petitioners to be adequate. Consequently the petitioners moved an application before the respondent No.1 on 5‑6‑1989 for referring their application to the District Judge under section 18 of the Land Acquisition Act. In their application, the petitioners challenged the award dated 28‑3‑1989 to be ab initio void and liable to be set aside. The petitioners complained of non receipt of notifications issued under section 4, section 6 and section 17 of Land Acquisition Act, despite request for copies of the same, made under letters dated 28‑9‑1988, 2‑11‑1988, 17‑1‑1989 to the respondent No.1. Petitioners alleged that in spite of their objections and claims the Land Acquisition Officer had passed the award at their back on 28‑3‑1989. The petitioners while challenging the award to be illegal and ab initio void, termed the compensation awarded for the acquired land to be scanty. Under a letter dated 25‑6‑1989 the Land Acquisition Officer informed the petitioners that their application under section 18 of the Land Acquisition Act was time‑barred and the same was incompetent because they had already received payment for the acquired land. Hence this Constitution petition.
4. Mr. SA. Shaukat Naqvi, learned counsel for the petitioners argued that the award was given at the back of the petitioners and that the petitioners had written a letter on 6‑4‑1989 to the Land Acquisition Officer protesting against the compensation awarded. Learned counsel. conceded that payment of the acquired land was 'received by the petitioners on 5‑4‑1989 but contended that this was under protest and such telegram was sent to the Land Acquisition Officer on 5‑4‑1989, besides a letter sent to the Land Acquisition Officer on 6‑4‑1989. It was further argued that the petitioners were not served with any notice under section 12(2) of the Land Acquisition Act and that the application having been moved on 5‑6‑1989 was within the period prescribed by the proviso below subsection (2) of section 18 of the Land Acquisition Act. Learned counsel for the petitioners cited the cases of:
(i) Federation of Pakistan v. Saeed Ahmed Khan and others (PLD 1974 SC 151). ,
(ii) Government of Pakistan v. Hamid Akhtar (PLD 1988 SC (Azad J&K) 6).
(iii) Esso Pakistan Fertilizer Co. Ltd., Karachi v. Bashir Ahmed and another (PLD 1977 Kar. 922).
(iv) Province of Punjab and others v. Mufti Muhammad Ishaq and others (PLD 1984 Lah. 261).
(v) Zardad Khan and others v. North‑West Frontier Province and others (PLD 1982 Pesh. 69).
(vi) Mst. Arsha Begum v. Habibullah and others (1990 CLC 1812).
(vii) Ata Muhammad and others v. Assistant Commissioner (General), Bahawalpur and another (PLD 1961 BJ 69).
5. Mr. Abdul Hameed Siddiqui, learned counsel for respondent No.4 contested the petition and argued that the petitioner No.l was present when the award was made on 28‑3‑1989 vide letter dated 25‑6‑1989, and hence the application under section 18 of the Land Acquisition Act moved on 5‑6‑1989 was time‑barred. Learned counsel next argued that the petitioners have accepted the amount of compensation on 5‑4‑1989 and had signed such receipt and consequently they were estopped from challenging the quantum of compensation. It was further argued that the petitioners were served with notice under section 12(2) of the Land Acquisition Act and they were not entitled to move application under section 18(2) on 5‑6‑1989.
6. It has not been established on record if the petitioners were served with notice under section 12(2) of the Land Acquisition Act. The onus was on the respondent No.1 to establish service of such notice.
7. In respect of the point of limitation, it would be profitable to reproduce the provisions contained in subsection (2) of section .18 of the Land
8. Acquisition Act. These provisions read as follows:‑
9. In respect of the point of limitation, it would be profitable to reproduce the provisions contained in subsection (2) of section 18 of the Land Acquisition Act. These provisions read as follows:‑
10. "Section 18(2).‑‑The application shall state the grounds on which objection to the award is taken:
11. 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."
12. In this respect it was held in the case of Government of Pakistan v. Hamid Akhtar PLD.1988 SC (AJ&K), that the law of acquisition provides a complete scheme for acquiring property, including the rule of limitation, applicable to a reference to the Court for determination of the amount of compensation. In the case of ESSO Pakistan Fertilizer Co. Ltd., Karachi PLD 1977 Kar. 922, it was held that a claimant who has not accepted the award is required to make application within six weeks from the date of the Collector's award if he was present or was represented at the time of the award and in other cases within six week of receipt of notice under section 12(2) of the Act or within six months from the date of the award, whichever is earlier and that the question of limitation was not to be left to the District Judge to decide. In the case of Mst. Arsha Begum (1990 CLC 1812) the view taken was that the period of limitation for filing application under section 18 of the Land Acquisition Act, is to be counted in the light of proceedings under section 12 of said Act, which had prescribed three different periods of limitation. In the case of Ata Muhammad and others (PLD 1961 B.J. 69) the view taken was that sending of a notice under section 12(2) of Land Acquisition Act was not mandatory but it prescribed a period of six months for filing an application under section 18 of said Act, from the date of the award itself, in cases which are not covered by clause (a) or first part of clause (b) of the proviso below subsection (2) of section 18.
13. Perusal of the award dated 28‑3‑1989 shows that petitioner Zakir Hussain appeared before the Land Acquisition Officer and submitted his claim, but it is not clear if said petitioner was physically present before the Land Acquisition Officer on the date of the award. Hence clause (a) of the proviso below subsection (2) of section 18 of Land Acquisition Act will not apply in this case. In absence of proof about any notice having been served upon the petitioners under section 12(2) of said Act, the first part of clause (b) of the proviso below subsection (2) of section 18 of said Act would not apply. Present case would therefore fall under the second part of clause (b) of the proviso below subsection (2) of section 18 of the said Act. Consequently the petitioners were required to move their application under section 18 of the Land Acquisition Act within a period of six months from the date of the award viz 28‑3‑1989. The application under section 18 of Land Acquisition Act was moved by the petitioners before the Land Acquisition officer on 5‑6‑1989 although it could be moved by 28‑9‑1989 and it was therefore within the time prescribed by the proviso below subsection (2) of section 18 of the said Act.
14. No doubt the petitioners had received the payment of Rs.13,96,550 as compensation for the acquired land on 5‑4‑1989 but on the same date they had sent a telegram to the respondents Nos.1 and 4 that they had received the award under protest, as the amount awarded was too meagre and scanty. The petitioners also sent a letter dated 6‑4‑1989 to the Land Acquisition Officer protesting against the award and requiring him to supply attested copy of the award for moving an application under section 18 of the Land Acquisition Act. In these circumstances it cannot be said that the petitioners were estopped from availing the legal remedy provided by section 18 of said Act, if they accepted the compensation under protest.
15. For the aforesaid reasons this Constitution petition is accepted and the impugned order dated 25‑6‑1989 is declared to have been passed without lawful authority and to be of no legal effect and the respondent No.1 is.. required to send the reference to the concerned District Judge in terms of section 18 of Land Acquisition Act on the basis of application of the petitioners dated 5‑6‑1989. No order as to costs.
16. These are reasons for our short order dated 6‑8‑1992 in identical terms.
17. AA./Z‑191/K Petition accepted.