Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

I^st Appeal No. D – 44 of 2004

Before :

Mr. Justice Muhammad Shafi Siddiqui

Mr. Justice Khadim Hussain Tunio

Appellants : Hafiz Prof: Abdul Ghaffar and another,

through Mr. Raj Kumar D. Rajput, Advocate.

Respondent No.1 : Assistant Commissioner (DDO),

through Mr. Abdul Ghaffar Memon, State Counsel.

Respondent No.2 : Sukkur Motor Works Association,

through Mr. Yousuf Ali, Advocate.

Date of hearing : 06.09.2018.

Date of judgment : 25.09.2018.

J U D G M E N T

MUHAMMAD SHAFI SIDDIQUI, J. – This first appeal impugns an order dated 17.06.2004 passed by designated Additional District Judge, Sukkur in Land Acquisition Suit No.01/2003 in terms whereof plaint / reference was rejected, as being time barred.

2. DDO in consideration of the grievance application, forwarded the Reference under Section 18 of the Land Acquisition Act, 1894 to the District Judge, Sukkur on 22.02.2003. Two survey numbers claimed to have been owned by the appellants i.e. Survey No.231 and Survey No.241 having area of 1-17 acres and 5-14 acres respectively. The award was passed in the year 1997 and 1998 respectively in respect of land which also include aforesaid survey numbers.

3. It is claimed that the plaint / reference could not have been rejected by Additional District Judge as the Reference was within time as the dispute between the two private parties was resolved in the year 2003 in a suit. Learned counsel for the appellants has relied upon the case of Fazal Karim V/S Azad Govt. of the State of J&K, PLD 1998 Supreme Court (AJ&K) 26 and Province of Punjab V/S Babu Khan, 1997 MLD 2577. It is further claimed, that had it been a case of rejection of plaint, the DDO himself could not have forwarded it to the District & Sessions Judge, Sukkur. It is claimed that it is within the domain and jurisdiction of DDO to have rejected the plaint and not by District or Additional District Judge to whom the Reference was forwarded to resolve the questions raised therein on merit, which does not include the question of limitation.

4. On the other hand, Mr. Abdul Ghaffar Memon, learned State Counsel submitted that there is nothing to prevent the appellants from challenging the Award passed in the year 1997 and 1998. For no reason he waited for the judgment of the Civil Court. Though he may not be a party to the proceedings when the Award was passed but he himself moved an application and Section 18 enabled the applicant to challenge the Award within his rights which were subjudice. He has relied upon the judgment of Muhammad Kaleemullah V/S Mst. Rehana Naseer and 2 others, 2017 YLR 275, Haji Muhammad Yunus V/S Land Acquisition Officer and Assistant Commissioner, 2000 YLR 1185 and K. A. Marker, Director, A. D. Marker & Sons, Quetta V/S WAPDA through its Chairman, Lahore, PLD 1979 Quetta 20. He submitted that the requisite amount was deposited at the time when the Award was passed including 15% compulsory charges and 6% interest.

5. I have heard the learned counsel and perused the material available on record. The prime question as raised in this First Appeal is whether the “designated Court” was competent to consider the questions not forwarded through the reference? Whether designated Court could not have exercised judicial powers which otherwise available to a District Judge?

6. The land acquisition proceedings commenced well before 1997 and 1998 and the appellants originally were not made party to the proceedings. The dispute in the shape of Suit No.108/1996 was pending adjudication between private parties which was resolved somewhere in December 2002 as informed. This question of such references being barred by time was considered by different benches having their independent views, however, this question was ultimately set at rest by Hon’ble Supreme Court in the case of Government of West Pakistan (Now Government of N.W.F.P.) through Collector, Peshawar v. Arbab Haji Aimed Ali Jan and others reported in PLD 1981 Supreme Court 516. The Hon’ble Supreme Court, in the aforesaid judgment, examined the judgment of the Full Bench of Peshawar High Court in appeal. The Full Bench of Peshawar High Court was of the view that it is the reference of the Collector which invests the Court with necessary jurisdiction to enquire into objections mentioned in Section 19 of the Act and not the objection application filed by an interested person before the Collector. The relevant passage of the judgment of the Full Bench of Peshawar High Court is reproduced as under:

“ The plain language of these sections reveal that is the reference of the Collector which invests the Court with the necessary jurisdiction to enquire into the objections mentioned in section 19 of the Act and not the objection application filed by an interested person before the Collector. The fact that this how these sections have been construed in some of the second set of judgments should be enough to doubt the correctness of the judgments favouring the affirmative proposition, for therein these sections were completely ignored. But if there be still any doubt on this point, then reference may be made, with advantage, to a judgment of the Indian Supreme Court Kothamau Kanakarthamma and others v. State of Andhra Pradesh (A I R 1965 S C 304), by which this irksome controversy seems to have been finally laid down at rest. ”

7. The Full Bench of Peshawar High Court, thus, declared Section 18 of the Land Acquisition Act as directory as no penalty was prescribed for its violation.

8. The Hon’ble Supreme Court agreed with the formulation of wisdom of the Full Bench of Peshawar High Court as in the absence of any specific provision in the Act itself, the jurisdiction conferred by the relevant section debarred the designated Court from examining the validity of the reference on any other touchstone which is a condition precedent for the designated Court to act accordingly.

9. The Hon’ble Supreme Court held that as the executing Court cannot go behind decree, in the same way the designated Court cannot go behind reference. The Hon’ble Supreme Court went on to observe that whether the application is or is not within time, is the exclusive domain of Collector and the discretion exercised by him is not justiciable qua the exercise of judicial power by designated Court having regard, in particular, to the language of Section 21 of the Act. It was, however, revisable under Section 18-B of the Act and cannot be, thus subjected to a review by designated Court. No appeal preferred by respondents insofar as D.D.O’s order is concerned. Ultimately, the decision of the Full Bench of Peshawar High Court was approved and upheld. The same wisdom was followed in the case of Fazal Karim and 3 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and others reported in PLD 1998 Supreme Court (AJ&K) 26, and in the case of Province of Punjab through Collector, Bahawalpur and another v. Babu Khan reported in 1997 MLD 2577.

10. In view of the above facts and circumstances and in view of the dictum laid down by Hon’ble Supreme Court, we deem it appropriate to set aside the impugned order passed by the designated Court in Land Acquisition Suit No.01/2003 whereby the reference / plaint was rejected as being barred by the time and remand the case for a decision on merits within a period of four (04) months as a considerable time has already lapsed.

11. The appeal is allowed in the above terms.

J U D G E

Abdul Basit