Haji GHULAM MOHAMMAD Versus PROVINCIAL GOVERNMENT GB through Chief Secretary
ALI BAIG, J.--- This writ petition under Article 71(2) of Gilgit-Baltistan Empowerment and Self-governance Order, 2009 has been filed against the impugned order dated 23/11/2016 passed by land acquisition collector, Kharmang whereby the learned land acquisition collector Kharmang has dismissed reference petition of the petitioners filed under Section 18 of Land Acquisition Act, 1894 for enhancement of compensation amount.
2. Through this single judgment we intend to dispose of Writ Petitions Nos.04/2017 and 05/2017 as common question of law and facts are involved in both writ petitions.
3. Brief facts of the case giving rise to the filing of these writ petitions are that the respondent No.2/land acquisition collector Kharmang had acquired land of petitioners for construction of 1.5 MW power house phase-III project Tolti vide award bearing No.DK-8(3)/2015 dated 02/05/2016 at the rate of Rs.150000/- per kanal for cultivated land and 130000/-per kanal for uncultivated land. Feeling aggrieved and dissatisfied with the compensation amount assessed by the Collector Kharmang, the petitioners had filed reference petition under Section 18 of Land Acquisition Act 1894 before the Land Acquisition Collector/Deputy Commission Kharmang with the request to refer the said petition to referee court for determination of compensation amount but the learned Land Acquisition Collector Kharmang vide order dated 23rd November, 2016 has dismissed aforesaid reference petition holding that the reference petition is time barred, hence this writ petition.
4. The learned counsel for the petitioners contended that the impugned order passed by the learned land acquisition collector Kharmang is contrary to law and facts on the record of case as such the impugned order passed by the Collector is not maintainable and liable to be set aside. The learned counsel for the petitioners further contended that the reference petition filed by the petitioners before the land acquisition collector Kharmang was well within time as the respondent No.2/land acquisition collector has not issued any notice under Section 12(2) of Land Acquisition Act and neither the petitioners were present nor they were represented before the land acquisition collector at the time when the Collector made/ passed the award. The learned counsel for the petitioners further contended that limitation for filing of reference petition is 06 months from the date of Collector's award as Collector has failed to issue notice under Section 12(2) of Land Acquisition Act to the petitioners.
5. On the other hand the learned Addl. Advocate General vehemently opposed this writ petition by contending that the petitioners were present at the time of passing of award and they had knowledge regarding the passing of award dated 02/05/2016, as such time provided for filing of reference is 06 weeks under section 18 subsection 2(a) of Land Acquisition Act, 1894 but the petitioners have failed to submit reference petition before the Collector within time, hence reference petition filed by the present petitioners was hopelessly time barred and the learned land acquisition collector, Kharmang has rightly dismissed the aforesaid reference petition.
6. We have heard the learned counsel for the parties at considerable length and perused the record with their able assistance.
7. From perusal of record it transpires that the disputed award was passed by the land acquisition collector, Kharmang on 02/05/2016 and reference petition was filed by the petitioners before the Collector on 25/10/2016 i.e. after 05 months and 23 days of the passing of the disputed award. Period/limitation for filing of reference petition has been provided in Section 18 of Land Acquisition Act 1894, which is reproduced herein as under:--
"18. Reference to Court:---(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 measurement of the land, the amount of the compensation, the persons 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: 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."
8. Plain reading of above reproduced provisions of Land Acquisition Act reveals that if a person who is aggrieved from the award and he was present or represented before the Collector at the time of passing of award, he can file reference petition before Collector within 06 weeks from the date of Collector's ward. In other cases within 06 weeks of receipt of notice from the Collector under Section 12(2) of Land Acquisition Act or within 06 months from the date of Collector's award.
9. Admittedly, the petitioners were not present or represented before the Collector at the time of passing of disputed award nor any notice under Section 12(2) of Land Acquisition Act has been issued/served upon the petitioners, as the respondents have failed to produce any such notice before this Court. Accordingly limitation for filing of reference petition is 06 months from the date of Collector's award as provided under Section 18 subsection (2)(b) of Land Acquisition Act, 1894. The petitioners have filed reference petition before the Land Acquisition Collector, Kharmang within 05 months and 23 days after passing the disputed award, hence the reference petition was well within time and the learned land acquisition collector, Kharmang has wrongly dismissed the reference petition of the petitioners holding that the reference is petition barred by time.
10. In view of the above discussion, this writ petition is allowed. Consequently, the Land Acquisition Collector, Kharmang is directed to refer the reference petition of the petitioners to concerned Referee Judge/District Judge, Skardu for the determination/trial. File be consigned to record after its due completion.
ZC/168/GB Petition allowed.