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P L D 1984 Peshawar 35

 

Before Fazal Elahi Khan and Inayat Elahi Khan, JJ

 

GULZAMAN‑AND ANOTHER‑Petitioners

 

versus

 

COLLECTOR, LAND ACQUISITION AND OTHERS‑Respondents

 

Writ Petition No. 76 of 1980, decided on 22nd October, 1983.

 

Kh. Abdur Rashid and Muhammad Younas Tanoli for Petitioners.

 

Kh. Nazir Ahmad and Sardar Ghulam Mustafa for Respondents.

 

Date of hearing : 17th July, 1983.

 

JUDGMENT

 

FAZAL ELAHI KHAN, J.‑By this judgment all the three writ petitions shall be disposed of in which identical questions of fact and law are involved.

 

2. The petitioners are the owners in land bearing different Khasras Nos. as detailed in the petitions, situated in Village Sheikhul Bandi, Tehsil and District Abbottabad. The Military Estate Officer, Abbottabad, approached the Land Acquisition Collector for the acquisition of the land for public purpose, at public expense. Accordingly notification under section 4 of the L. A. Act, was published in the official gazette on 19‑7‑1978. However, on the request of the Acquiring Department corrigendum notification under section 4, of the Act was issued on 13‑7‑1978 making an addition in the land to be acquired. The learned Acquisition Collector took action under section 17 (4) of the Act and dispensed with the issuance of notices under section 5‑A of the Act.

 

3. The learned Acquisition Collector, after the completion of the required formalities made an award under section 11 of the Act on‑ 14‑12‑1978 wherein compensation for different kinds of acquired land was fixed. .

 

4. These three objection petitions, viz. Gul Zaman and others v. The Land Acquisition Collector. and another, Aziz‑ur‑Rehman and eight others v. The Land Acquisition Collector, and Abdal Malik and nine others v. The Land Acquisition Collector were made on 17‑3‑1980, 2‑4‑1980 and 12‑2‑1986, respectively. In all these objections prayer was made for reference under section 18 of the Act to the Land Acquisition Judge, for determination of fair compensation of their acquired land. Prayer was also made for the valuation of the trees which had not been accounted for and assessed in the award. The Land Acquisition Collector passed the following order in all the four objection petitions before him .

 

“Subject : Reference under section 18 of the Land Acquisition Act, 1894.

 

(1) Abdul Malik etc. v. L. A. C. etc.

 

(2) Gul Zaman etc. v. L. A. C. etc.

 

(3) Aziz‑ur‑Rehman etc. v. L. A. C. etc.

 

(4) Mughal Khan etc. v. L. A. C. etc,

 

ORDER

 

The above four references have been preferred in this office/Court against the award announced by the Land Acquisition Collector, Abbottabad on 14‑12‑1978 in respect of Land situated in the vicinity of S. S. D.

 

In accordance with the provisions of Land Acquisition .Act, 1894, the period of filing references against the awards is (6) six weeks and six (6) months in case where such awards were announced in presence of the affectees and those having being no knowledge of such award, respectively. In either case, the present references are hoplessly time‑barred having been filed after one year and are therefore, rejected.”

 

5. This order of the learned Acquisition Collector is challenged before us in these three ‑Writ Petitions bearing Nos. 76/1980, 77/1980 and 78/1980.

 

6. It is alleged in these petitions that the petitioners were never served with a notice of the acquisition proceedings in respect of their land nor any attempt was made to serve any notice of the award under section 12(2) of the Act on the petitioners, therefore, the period of limitation given therein under section 18 of the Act would not be mad, applicable to the case. Elaborating his argument, the learned counsel for the petitioners contended that in the absence of service of notices under sections 9 and 10 of the Act, the petitioners were deprived of an opportunity to claim fair compensation for the land. It was further contended that in the absence of notices under section 12(2) of the Act the entire proceedings are vitiated, moreso the bar of limitation would lose its force.

 

7. For our satisfaction we sent for the record of the acquisition proceed ings of the Land Acquisition Collector but the same could not be made available as according to the statement of C. W. 1 (Muhammad Rustam, Girdawar Qanoongo Office of the Land Acquisition Collector Abbottabad), recorded in Court, the same was burnt in the fire which took place in the office of the Collector in the year 1981. We have been informed by the learned Advocate appearing for the respondent that objection petitions against the disputed award, filed by some of the co‑sharers of the acquired land, have been decided by the Land Acquisition Judge, and the amount of compensation has been enhanced in those cases, against which appeals by the Land Acquisition Collector, are still pending for decision.

 

In the absence of the original record before us, we have to rely on the contents of the award, made by the statutory authority, to which presumption of correctness is attached. The relevant portion of the award dealing with the issuing of notices under sections 9 and 10 is as under :‑

 

“Notice under section 9 of the L. A. Act, 1894 was served on the affected land‑owners and Acquiring Department vide this office endorsement No. 4653‑54/19‑ACA/ACQ, dated 13‑8‑1978 to prefer their claims, objections on the date fixed i.e. 28‑8‑1978. In response to the notice certain affected land‑owners appeared before the Land Acquisition Collector, Abbottabad on 28‑8‑1978 and submitted their claims in writing as under :

 

(1) That our land measuring 189 kanals and 19 marlas situated in Village Sheikhul Bandi has been acquired for S. S. D. before two years.

 

(2) That the cost of land is more than the cost claimed. At, present land is being sold at higher rates in the vicinity.

 

(3) the price of land should be based on the market value which raised upto 50,000 per Kanal.

 

(4) That no compensation has been assessed for trees. etc. and the same is necessary.

 

(5) That the land is situated in Cantonment area.

 

(6) That in the same vicinity previous year an award was announced by the Land Acquisition Collector, Abbottabad at the rate of Rs. 35,000 per Kanal.

 

(7) That the compensation should be apportioned between the owners according to “Khana Malkiat” of the current jamabandi.

 

Representative of the Acquiring Department was also present and submitted his claims/objections as under :

 

(1) That the cost of land at the rate of Rs. 50,000 is too high.

 

(2) That after spot inspection compensation of trees should be assessed which will be paid to the affected land‑owners vide written statement dated 28‑8‑1978 on the file.”

 

9. In the circumstances of the case and in view of the clear mention of the notice under section 9 of the Act having been issued, and the fact that some of the land‑owners/affectees have preferred objections before the Land Acquisition Collector, we are not inclined to hold that notice under section 9 of the Act was not served on the petitioners. Even if we presume, for the sake of arguments, that notice under section 9 was not served on the petitioners that would make no difference as far as the question involved in the case is concerned. In the absence of the proof of service of notice under section 9 of the Act, the bar under section 25 of the Act, to claim enhanced compensation of the acquired land in determining the fair compensation in an objection petition referred to Court in accordance with the law, would not be available to the Land Acquisition Collector in defence.

 

10. The learned counsel for the petitioners next argued that in case notice is not served on the affectees, after making of the award, under section 12(2) of the Act, and the service of notice, when denied, is not proved to have been affected in accordance with section 45 of the Act, the period of limitation for making an objection petition would be six months from the date of knowledge and not from the date when the award was made.

 

11. In order to appreciate the contention so raised, section 12 of the Act is reproduced as under :‑

 

“S. 12. Award of Collector when to be final.‑(1) Such award shall be filed in the Collector’s Office and shall, except as hereinafter provided be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, the apportionment of the compensation among the persons interested (2). The Collector shall give immediate notice of his award to such of the persons interested as ‘are not present personally or by their representatives when the award is made.”

 

12. From the perusal of the award and in the absence of the original record of the Land Acquisition Collector, we are satisfied that there is no material before us to hold that notice under section 12(2) was issued and served on the petitioners in the present case. The learned Collector has made the award on the presence of those interested persons who were present before him on that date. However the names of. those persons who were present ‘t are not given therein. Furthermore, though the intimation of the award, as it appears, has been given to the Department concerned and others. But there is no order or direction that the same is to be notified to all the interested persons. We are, therefore, positively of the view that notice of the award made was not proved to have been given to the petitioners what to say of the same having been served in the manner provided under section 45 off the Act.

 

13. Presence of the person interested at the time of making of the award, or receipt of the notice under section 12(2) of the Act is relevant in determining the period of limitation for making an objection petition under section 18 of the Land Acquisition Act. Section 1 8 of the Act which provides different periods of limitation for filing of an objection petition, reads as under :‑

 

“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 to be the measurement of the land, the amount of 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 Provided that every such application 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.”

 

14. The main question requiring determination in the case is whether the period of limitation of six months provided for under section 18(b) would start from the date when the award was made or from the date of knowledge of the award by the persons interested.

 

15. In support of his contention the learned counsel for the petitioners relied on Khajana Lakshmana Rao v. Revenue Divisional Officer (A I R 1954 Mad. 942), wherein their Lordships held :

 

“In cases where notice of the date on which the award would be made is not communicated to the claimant, the Collector has to send notice of the award to the persons interested under section 12(2). Where such notice has been issued, the claimant has six weeks from the receipt of the notice under section 12 (2) for the purpose of filing the reference application., Where the claimant has notice that an award would be made on a particular date, bur was not present personally or by representative at the time the award was rendered, and the award under section 12(2) the claimant would have a period of six months from the date of the award to apply for the reference. In my opinion, this is the precise scope of the provision granting six months from the date of the award referred to in the concluding portion of the proviso to section 18 (2). In other cases he would have six months from the time the claimant has information that an award has been passed.”

 

16. In giving decision in the case the learned Judges made reference to the following observation in case Muthian Chettiar v. Commissioner (A I R 1951 Mad. 204)

 

“We consider that the rule laid down by the learned Judges in the above two decisions, is based upon a salutary and just principle, namely that if a person is given a right to resort to a remedy to get rid of an adverse order within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and, therefore, must be presumed to have had knowledge of the order.”

 

17. The learned counsel further placed reliance on Allah Dino v. Faqir Muhammad and another (P L D 1969 S C 582), where their Lordships while considering the period of limitation for filing of an appeal. or revision against an order passed on the back of a party held :

 

“it is clear from this circumstances that the appellant did not know about the result of his revision petition which was decided behind his back until the intimation received from the Reader on the 28th of March, 1963. His review application brought within 90 days from that date was, therefore, within time. In a case where litigant is kept in dark about the date of his case, it is wrong to say that for a remedial action against it as provided by law, time would start to run against him from the date of the order and not from the date when he comes to know about it.”

 

18. The learned counsel appearing for the respondents, however, argued that the Land Acquisition Act is a special statute and has provided different period of limitation under section 18 of the L. A. Act for filing an objection petition, as under

 

“(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(2) or within six months from the date of the Collector’s award, whichever period shall first expire.”

 

19. As we have already observed, no notice of the award was given to the objectors under section 12(2) of the Act, so the first two eventualities are missing in the case of the objectors before us. We are, now left to determine whether period of six months is to start from the date of making the award or from the date of its knowledge. The authority of the Supreme Court of Pakistan relied upon pertains to the general proposition of law where an order is announced on the back of a party, the period is to be recknoned from the date of the knowledge of such order or receipt of notice. However, under the Land Acquisition Act special provision has been made in the section itself keeping in view the nature of the proceedings and in giving the award of Collector finality. It has already been made incumbent upon the objector to come to Court before the expiry of the period of six months from the date of award irrespective of the period of six weeks provided from the date of notice. Therefore, to hold that the period of six months is to be calculated from the date of knowledge would be importing something into the statute which the legislature has expressly avoided. The period of six months has been fixed so as to give finality to the acquisition proceedings. In case the period of six months is calculated from the date of knowledge, that would create a contradictory and anomalous position. In case when award is made and announced in the presence of the affectee the period of limitation for filing of objection petition would be six weeks while on the other hand when award is made in the absence of the affectee the period would be extended and would be six months from the date of its knowledge.

 

20. We are, therefore, respectfully not in agreement with the proposition of law laid down in the decision of the Madras High Court, referred to above.

 

21. The learned counsel further referred to Allah Muhammad and others v. Assistant Commissioner (PLD1961BJ69), where their Lordships has held that the of six months is the maximum period provided for making of the objection petition. It was further held that law of limitation being a technical law is to be strictly applied. In Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore (P L D 1970 321), the period of six months was held to be the maximum period after the making of the award in which an objection petition could be filed. , It was further held that the provision of section 5 of be Limitation Act would not be attracted to an objection petition under section 18 of the Land Acquisition Act.

 

22. This view is also supported by a judgment of the Supreme Court of Pakistan in Ghulam Muhammad v. Government of West Pakistan (P L D1967 S C 191), wherein it has been held

 

“The fact that admittedly no notice of the filing of the award was served upon the appellant under section 12(2) of the Act is, in no way, relevant for the purpose of deciding this controversy as to the time in which the objection should be filed for, under section 18, with proviso (b), it would appear that if notice is served the period of p limitation is only six weeks from the date of the service of the notice but in other cases six months from the date of the Collector’s award. This proviso fixes a special period of limitation and since the Land Acquisition Act does not make the provisions of the Limitation Act applicable it would appear that in the same case of an objection under section 18 the maximum period allowable is six months from the date of the making of the award in accordance with section 11.

 

23. After going through the authorities referred to by the learned counsel for the parties we are of the view that the contention raised in this writ petition stands answered by the judgment of the Supreme Court of the Pakistan in the aforementioned case.

 

24. Next we are also of the view that the power of the learned Acquisition collector to give decision on the question of limitation is exclusively within his jurisdiction and we are supported in this view by the observation of their Lordships in Collector of Karachi v. Fida Hussain Muhammad Ali (P L D 1962 Kar. 292).

 

25. Consequently the power conferred on the Land Acquisition Collector having been exercised in accordance with the law the cases need no interference in writ jurisdiction.

 

26.These writ petitions are, therefore, dismissed. However keeping in view the legal questions involved, the parties are left to beat their own costs.

 

M. Y. H. petition dismissed.

 

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