BEHRAM KHAN Versus MILITARY ESTATE OFFICER

1. NASIM HASAN SHAH, J. ‑‑This judgment will dispose of Civil Appeals Nos.5 and 12 of 1980, as both of them are directed against a common judgment, dated 23‑12‑1979 passed by the Peshawar High Court.

2. According to the office note, both these appeals are barred by time; Civil Appeal No.5 of 1980 is stated to be barred by 15 days, while Civil Appeal No.12 of 1980 is stated to be barred by 19 days. The office objection is based on the assumption that the prescribed time for filing direct appeals to this Court under Article 185(2)(e) of the Constitution is 30 days; although according to the appellants, the period of limitation in such appeals is 60 days.

3. We observe that the office is relying on Rule 6‑B of Order XII of the Supreme Court Rules, 1956‑‑which were the rules applicable when the appeals were filed‑‑according to which a period of 30 days is prescribed for appeals certified by the High Court as fit for appeal to this Court. However, no specific rule dealing with the period of limitation in direct appeals filed to this Court under Article 185(2)(e) exists in these rules. The practice of the Registry, it appears, has been to consider 30 days to be the period prescribed for such appeals also. However, in a similar situation, wherein a" direct appeal was filed after 55 days of the date of the delivery of the judgment by the High Court and was reported by the office to be barred by 25 days this Court, in view of the uncertainty about the exact Rule applicable in such matters, condoned the delay of 25 days. (See order dated 30‑7‑1978 passed in Province of West Pakistan v. Mst. Bakhat Bibi (Civil Appeal No.45 of 1978). We are inclined to follow the same course in these appeals and would condone the delay of 15 days in Civil Appeal No.5 of 1980 and 19 days in Civil Appeal No.12 of 1980. As for the merits of the case, the appellants in both the appeals were owners of land situated in the Revenue Estate of village Kailag, Tehsil Haripur, District Hazara and their lands were acquired under the provisions of the Land Acquisition Act, 1894, for the purpose of construction of Pakistan Ordnance Factory Havelian. The Land Acquisition Collector, by an award made on 29‑7‑1970, awarded the compensation payable for the acquired land assessing the value of various kinds of land as under:‑‑

4. Village Kailag

5. Kind of land

6. Value assessed

7. Churri

8. Rs.477.40 per kanal

9. Kund

10. Rs.330.80 " "

11. Maira

12. Rs .173.60 " "

13. Rakkar

14. Rs.130.20 " "'

15. Ghair Mazrooba

16. Rs. 43.40 " "'

17. The appellants, however, were not satisfied with the award and submitted an objection petition under section 18 read with section 30 of the Land Acquisition Act for reference of their objections for determination by the Civil Court and, accordingly, the matter was forwarded to the learned Senior Civil Judge, Hazara for adjudication. The learned Senior Civil Judge, after considering the evidence and taking into account the various modes of determining the market value, determined the value of various kinds of land as follows:‑

18. Kind of land

19. Rates Rewarded

20. Churri

21. Rs. 5,081.67 per kanal

22. Kund

23. Rs.1,927.53 " "

24. Maira

25. Rs .1,226.60 " "

26. Rakkar

27. Rs. 700.92 " "'

28. Ghair Mazrooba

29. Rs. 175.23 " "'

30. While the appellants were satisfied with the above judgment and decree of the learned Senior Civil Judge, the same was not acceptable to the Pakistan Ordnance Factory and the Central Government. Accordingly, they challenged it by an appeal (R.F.A. No.103 of 1975) before the Peshawar High Court. The appeal was taken up for consideration alongwith 14 other Regular First Appeals including R.F.A. No.28 of 1975, which were all disposed of by a common judgment dated 23‑12‑1979, whereby the compensation awarded by the learned Senior Civil Judge was reduced. It is, however, relevant to mention that during the hearing of the appeals the appellants herein raised a preliminary objection to the maintainability of the appeals submitting that neither the Military Estate Officer nor the Central Government were competent to file the appeals, notwithstanding the fact that the land was being acquired for their benefit. The said plea was .rejected by the High Court in its judgment delivered on 23‑12‑1979. Hence these appeals before us.

31. Mr. Siraj‑ul‑Haq, learned counsel for the appellants in Civil Appeal No.5 of 1980 and Mr. Samad Mahmood, learned counsel for the appellants in Civil Appeal No.12 of 1980 have pointed out that the impugned judgment was also impugned before this Court by another appellant whose case was heard alongwith the case of the present appellants by the High Court (in R . F . A . 28 of 1975) and that this Court has allowed that appeal (Civil Appeal No.3 of 1980) by its judgment delivered on 8th April, 1987 , wherein the objections being raised by the present appellants namely that neither the Military Estate Officer nor the Central Government had the right of appeal to the High Court against the judgment and decree passed by the Senior Civil Judge were raised and the said objections upheld. This judgment is now reported as Pir Khan v . Military Officer, Abbottabad and others P L D 1987 S C 485.

32. According to this Court's judgment in Pir Khan's Case, the award made by the Land Acquisition Collector becomes final, so far as the local authority or the company is concerned and that sue local authority or company is obliged to give effect to it since it has no right to question it by way of an appeal. This conclusion wag based on the reasoning that as such authority or company has neither) the right to ask for reference under section 18 of the Land Acquisition Act it could not, on a parity of reasoning, possess a right to prefer an appeal against the decision made upon such a reference. The Court went on to observe "that the order of the Civil Court on reference made to it by the Land Acquisition Collector is not an, independent order but merely a substitutive order, whereby the award of the Land Acquisition Collector is substituted by the order of the Civil Court, which order :then becomes the award. Since, by virtue of subsection (2) of section 50 of the Act, the award made by the Land Acquisition Collector is final and cannot be challenged except by a party which has expressly been conferred the right of appeal; hence respondents Nos.l and 2 who did not have any such right expressly conferred on them, did not have any‑ locus standi to file an appeal" . It was further observed that no such right is to be assumed on any a priori ground because a right of appeal can be exercised only if it has been expressly conferred on a party by statute.

33. It is manifest that the above judgment is fully applicable t the present appeals; in fact, it has been given in respect of the very same judgment‑of the High Court which is being now impugned before this Court. These appeals are entitled to succeed on that short ground.

34. However, Mr. Raza A. Khan, Deputy Attorney‑General, has submitted that in the precedent case this Court did not consider the effect of the provisions of the Land Acquisition (West Pakistan Amendment) Ordinance, 1969 (Ordinance XLIX of 1969), which was still in force and, therefore, the matter still required consideration.

35. We have, therefore, examined the provisions of this Ordinance with the assistance of the learned counsel but are of the opinion that none of its provisions affect the reasons given in the judgment in Pir Khan's Case P L D 1987 S C 485 in reaching the conclusion that neither the Pakistan Ordnance Factory nor the Central Government had the right to file any appeal before the High Court. The only provision of the amending Ordinance. which could conceivably be invoked is contained in section 15 of the amending Ordinance. By this provision section 22‑A has been inserted in the Act after section 22 of the Land Acquisition Act. This provision is in the following words: ‑

36. ''22‑A. Cross‑objection.‑‑The Provincial Government, or a local authority or a Company for which land is being acquired, may lodge a cross‑objection to the objection made by any person interested and the Court may reduce the amount awarded by the Collector if it considers it just and proper."

37. According to this provision, a Provincial Government or a Local Authority or a Company for which the land is being acquired can lodge a cross‑objection to the objection raised by any person interested (whose land or interest therein has been acquired) and on such cross‑objection the Court may reduce the amount awarded by the Collector to the land‑owner, in proper cases. If such a cross -objection is not decided to the satisfaction of the Provincial Government) or Local Authority or a Company it could file an appeal before the, High Court; but in the instant case the land was being acquired for Pakistan Ordnance Factory (which is a project of the Central Government) and it is the Central Government which is dissatisfied with the order of the Civil Court as it has raised the amount of the compensation assessed by the Land Acquisition Collector by accepting the objections against the amount assessed by him. The Central Government, however, is not included amongst those who have been given the right to file a cross‑objection against the award of the Collector. Accordingly, the question of filing an appeal against the rejection of its cross‑objection does not arise. The Pakistan Ordnance' Factory, which also filed an appeal before the High Court through the Military Estate Officer, is admittedly neither a Local Authority nor a Company. Hence it cannot also avail the provisions of section G2‑A.

38. The result is that no ground exists for reconsidering our earlier judgment in the case of Pir Khan v . Military Estate Officer Abbottabad and others P L D 1987 S C 485. These appeals must, therefore, succeed and are allowed with costs. The judgment and) decrees dated 23‑12‑1979 passed by the High Court are set aside.

39. M. Y. H. /B‑47/S Appeals allowed.