PIR KHAN Through His Legal Heirs vs MILITARY ESTATE OFFICER, ABBOTTABAD

1. NASIM HASAN SHAH, J.--This appeal under Article 185(2)(e) of the Constitution of Pakistan, 1973, is directed against the judgment dated 23-12-1979 of a Division Bench of the Peshawar High Court, Peshawar, passed in R.F.A. No. 28 of 1975 and arises in the following circumstances: On 21-8-1969 a Notification No.32330 Was issued under section 4 of the Land Acquisition Act 1894 by the Additional Commissioner, Peshawar, wherein it was recited that the land, inter alia, belonging to the appellant measuring 105 Kanals 7 Marlas situated in the revenue estate of Nowshera, Tehsil and District Abbottabad was likely to be required to be taken by the Central Government at public expense for public purposes namely Defence (Construction of Pakistan Ordinance Factory Havelian) and the said land was likely to be acquired for the said purpose. The said notification was followed by Notification No.7941/Rev., dated 11-3-1970 issued by the Commissioner, Peshawar, Division under Section 6 of the Land Acquisition Act declaring that the above-said land, inter-alia, was required for the said purpose and the Collector of Hazara was directed to take order of acquisition of the said land.

2. On 22nd May, 1970, notice under section 9 of the Land Acquisition Act was issued to the effected persons inviting objections and claims to compensation in respect of the interests they might have in the land proposed to be acquired.

3. In purusance of the notice under section 9 the appellant appeared before the Land Acquisition Collector and claimed compensation according to the market value which was Rs.8,000 per kanal.

4. The Land Acquisition Collector, after hearing him and considering all relevant matters, gave his award on 29-7-1970. Herein he assessed the value of various kinds of land as under:- Kind of land.Rate Barri AbiRs.1,033.80 Bahir Di AbiRs. 870.60 Barangar AbiRs. 551.00 MairaRs. 174.20 RakkarRs. 96.80 Ghair MazroohaRs.97.20 Feeling dissatisfied with the award of the Collector, the appellant submitted an objection petition under section 18 read with section 30 of the Land Acquisition Act praying that his objections be referred for determination to the Court. In this petition, the Land Acquisition Collector, Hazara (Abbottabad) was impleaded as the respondent. The petition was thereupon forwarded, as required by law, to the learned Senior Civil Judge, Hazara.

5. The parties adduced their respective evidence for determination of correct market value before the Court and the learned Senior Civil Judge after considering the evidence and taking into account the various modes of determination of market value allowed Rs.3,000 per Kanal for Bari Abi type of land and Rs.2,000 per Ranal for all other types of land by his judgment and decree dated 16-5-1974.

6. While the appellant was satisfied with the above judgment and decree the same was not acceptable to the Central Government. Accordingly, the said judgment and decree was challenged by way of an appeal (R.F.A. No. 28 of 1975) by (i) Military Estate Officer, H.Azara Circle, Abbottabad and (ii) the Central Government of Pakistan through Defence Secretary, Islamabad (respondents 1 and 2 herein) before the High Court of West Pakistan (Peshawar Bench), Peshawar.

7. This appeal was ultimately heard by a Division Bench of the Peshawar High Court on 8-10-1979. At the hearing of the appeal, the appellant herein raised a preliminary objection to the effect that the appeal was not maintainable. The submission was that the appeal against the judgment of the Civil Court filed by the Military Estate Officer and the Central Governmnent was incompetent as they were strangers to the proceedings, notwithstanding the circumstance that the land was being acquired for their benefit. The High Court rejected the above plea in its judgment delivered on 23- 12-1979 and after considering the case on the merits proceeded to accept the appeal of the respondents 1 and 2 to the extent that the rates awarded by the learned Senior Civil Judge were considerably reduced. Feeling aggrieved by the judgment of the High Court the owners of the land have come up in appeal before us.

8. Mr. Sirajul Haq has, in support of this appeal, reiterated the plea that the appeal filed earlier by respondents 1 and 2 in the High Court was not maintainable. He has submitted that under the Act of 1894 no right of appeal has been conferred upon the party for whose benefit land is being acquired, be it a company or a local authority or the Central Government. Since a right of appeal is a statutory right and cannot be conferred or inferred by implication, the appeal filed by the Central Government and the Military Estate Officer in the absence of any statutory provision enabling them to do so was incompetent. In support of these submissions, reliance was placed on a judgment of a Division Bench of the Peshawar High Court viz. WAPDA through its Chairman v. Aurangzeb Khan and others PLD 1975 Pesh. 1.

9. Mr. Sajjad Mahmud Sipra, Deputy Attorney-General of Pakistan was heard, in reply, on behalf of the respondents.

10. According to section 18 of the Land Acquisition Act it is, inter alia provided: "18.--(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 the 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."

11. However, subsection (2) of section 50 of the Act lays down:- "(2) In any proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation: Provided that no such local authority or company shall be entitled to demand a reference under section 18."

12. From a perusal of the above provisions, it is manifest that section 50(2) expressly. And in terms controls section 18 and takes away the right from the local authority or company for whom the land is being acquired to demand a reference under section 18. According to subsection (2) of section 50 a local authority or a company i5 only conferred the right to appear in proceedings before the Collector or the Court and adduce evidence for the purpose of determining the amount of compensation but a reference under section 18 by them is barred (vide the proviso to subsection (2) of section 50). It is, therefore, manifest that whatever may have been the object of the law, in view of plain language of section 50(2), there is no alternative but to give effect to it.

13. Hence, so far as a local authority or a company is concerned, the award made by the Land Acquisition Collector becomes final; it has neither the right to ask for a reference under section 18, nor on a parity of reasoning, a right to prefer an appeal against a decision made upon a reference under section 18 of the Act by the Court.

14. The above legal position was firmly established by the decisions of the Courts of this country see The Pabna Electric Supply Co. Ltd. v. Kaliprashad Bhattacharyya & another PLD 1960 Dacca 461, Kasimbhai and another v. The Deputy Commissioner, Dadu and others PLD 1968 Karachi 126 and WAPDA through its Chairman v. Aurangzeb Khan and others PLD 1975 Peshawar 1, but the learned Judges in instant case have departed from this view on the ground that the situation has changed on account of this Court's judgment in .H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd. , Karachi and another PLD 1969 SC 65. In this case, it was held that a party which was adversely affected by an order passed in a suit or proceeding was competent to file an appeal against it even if it had not been impleaded as a party therein.

15. We have considered the above reasoning of the High Court but are not persuaded to agree. In our view, the dictum in Saya's case PLD 1969 SC 65 is not apposite in the facts and circumstances of the present case. Indeed this point was also discussed in WAPDA through its Chairman v.

16. Aurangzeb Khan and others PLD 1975 Peshawar 1 and it was observed:- "The learned counsel, however, argued relying on a judgment of Supreme Court of Pakistan in the case of H . M . Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65, that since the land in this case has been acquired for his clients, who alone would be liable to pay to respondents the amount of compensation, their appeal would be competent, as by the decree of learned Additional District Judge their interest has been adversely affected. We are afraid, there is no force in this contention. A perusal of the judgment of Supreme Court would show that the appeal in that Court had arisen out of a suit proceedings instituted by H.M. Says & Co. Karachi against Habib Bank Ltd. , without impleading therein as defendants, Messrs Wazir All Industries Ltd. , who, according to the finding of Supreme Court, were a necessary party. It seems that during the pendency of their suit H.M. Saya and Co. Were able to secure from trial Court an order of interim injunction against Habib Bank Ltd. But since by the order in question the interest of Messrs Wazir Ali Industries Ltd. Karachi was adversely affected, they went in appeal against that order of the Court of District Judge who admitted the appeal and stayed the operation of that order. Being aggrieved, H . M . Saya & Co. Went in revision to High Court contending, inter alia, that since Wazir Ali Industries Ltd., Karachi were not a party to their suit, their appeal before District Judge would be incompetent and the consequent order passed by that Court without jurisdiction. The High Court was obviously not impressed with this contention and dismissed their revision application. As a last resort, H.M.

17. Saya & Co. Went in appeal to the Supreme Court but their appeal was dismissed with these observations:- "...We are satisfied that Saya & Co. Deliberately omitted to make them parties with the intention of avoiding a contest. They knew fully well that the reliefs sought were really directed againt Wazir Ali Industries Ltd., and their bankers. A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an , appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. This Court ought not to act on the principle that every proceeding is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same.

18. Section 96 of the Civil Procedure Code deals with appeals from decrees and section 104 deals with appeals from orders. The provisions do not in terms say, who is entitled to prefer an appeal. The Code, however, lays down that it is the decree or the order that has to be appealed against. If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceedings."

19. We respectfully are bound by this dictum. But do not see as to how would it help the appellants.

20. The appeal before their Lordships of Supreme Court had originated from a civil suit, to which all the provisions of the Code of Civil Procedure would be applicable."

21. We agree and would add that the order of the civil Court on reference made to it by the Land Acquisition Collector is not anindependent 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 1 and 2 who did not have any such right expressly conferred on them, did not have any locus stand to file an appeal. As already observed, no such right is to be assumed on any a priori ground and a right of appeal can be exercised only if it has been expressly conferred on a party by statute.

22. Furthermore, neither the Central Government nor the Military Estate Officer can be deemed to be parties who have been adversely affected by the order of the Civil Court. If the Central Government or the Military Estate Officer could get the land in, question more cheaply by private negotiations they can refuse to accept the land at the price determined by the Court. They cannot have it both ways. Having chosen to set in motion the special powers given to the Government to acquire land under the Land Acquisition Act for public purposes they are to be confined to those provisions and cannot claim further rights and higher privileges than those provided for under the provisions of the said Act. Since under the provisions of the Act only a special and limited appeal is provided for against the award of the Court, which in the facts and circumstances of this case would be availed of by the Provincial Government or the Collector, no other party, including the appellants herein could avail of a right of appeal. As neither the Provincial Government nor the Collector chose to file an appeal, the appeal filed by the Central Government and the Military Estate Officer was indeed an appeal filed by "strangers", having no locus standi to file it.

23. The upshot is that the preliminary objection with regard to the non-maintainability of the appeal before the High Court had force and in rejecting it the learned Judges of the High Court were in error. This appeal against the said erroneous determination, therefore, succeeds and is allowed, with costs. The result is that the impugned judgment of the High Court dated 23-12-1979 is set aside and that of the Senior Civil Judge dated 16-5-1974 restored.