P L D 2015 Supreme Court 344
P L D 2015 Supreme Court 344
Before Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ
WAPDA and others---Appellants
versus
BASHIR HUSSAIN SHAH and another---Respondents
Civil Appeals Nos. 19 and 20 of 2009, decided on 13th April, 2015.
(On appeal from judgment of Lahore High Court, Rawalpindi Bench dated 27-10-2008 passed in RFAs Nos. 70 and 71 of 2006).
Land Acquisition Act (1 of 1894)---
----Ss. 18(3)(4), 22-A, 50(2), proviso & 54-Constitution of Pakistan, Art.203-D(3)(b)---Appeal against award---Right of Federal Government or beneficiary of acquired land to file appeal---Scope---Necessary parties to the appeal---Appeals filed by Land Acquisition Collector and Provincial Government (beneficiary of the acquisition) were dismissed by the High Court on the grounds that beneficiaries of acquisition were not necessary parties as per the Land Acquisition Act, 1894---Legality---Provisions of Ss.18(3)(4), 22-A, 50(2) & 54 of Land Acquisition Act, 1894, barring right of appeal to Government/beneficiary (of the acquisition) had been declared as repugnant to Injunctions of Islam by Shariat Appellate Bench of Supreme Court vide judgment dated 18-2-1991 in Shariat Appeal No.7/89, after fixing a cut-off date till 30-9-1991, for making therein necessary amendments by competent bodies---According to Art.203-D(3)(b) of the Constitution, any law or its provision declared by Shariat Appellate Court as repugnant to Injunctions of Islam would cease to have effect on date on which its decision would take effect---Government/beneficiaries (of acquisition) after expiry of such cut-off date would have right to an appeal---Impugned judgment of High Court was set aside and case was remanded to the High Court for hearing afresh, after affording due opportunity of hearing to all the concerned parties---Appeal was allowed accordingly.
Land Acquisition Collector v. Muhammad Nawaz PLD 2010 SC 745 ref.
Sardar Muhammad Aslam, Advocate Supreme Court for Appellants (in both appeals).
Nemo for Respondents Nos. 1-3, 5 and 6 (in C.A. No.19 of 2009).
Ex parte: Respondents Nos. 4, 7 and 8 (in C.A. No.19 of 2009)
Muhammad Asif Chaudhary, Advocate Supreme Court for Respondents Nos.16, 20-22 (in C.A.No.20 of 2009).
Ex parte: Respondents Nos. 1-15, 17, 19, 23-27 (in C.A.No.20 of 2009).
Date of hearing: 13th April, 2015.
JUDGMENT
ANWAR ZAHEER JAMALI, J.---These two appeals arise out of the common judgment dated 27-10-2008, passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, in R.F.As Nos:70 of 2006 and 71 of 2006, filed by the appellants, whereby to the extent of appellants Nos.1, 2 and 4 these appeals were dismissed being incompetent and for the remaining appellant No.3, they were dismissed, being devoid of merit.
2. Briefly stated, relevant facts of the case are that for the benefit of appellants Nos.1 and 2 (WAPDA), an area of 301.03 kanals, situated at village Badana Khurd, Tehsil Taxila, District Islamabad was acquired by appellant No.3 for the benefit of appellant No.1. After completion of codal formalities, a consolidated award dated 27-11-1995 was passed, whereby the Land Acquisition Collector had, for the purpose of compensation, classified the acquired land into three categories "A", "B", "C" and awarded compensation at the rate of Rs.75,000, Rs.50,000/- and Rs.26,000/- per kanal respectively, along with 15% compulsory acquisition charges etc. Two groups of land owners, being dissatisfied with such award, had submitted objections under section 18 of the Land Acquisition Act, 1894 ("the Act of 1894"), which were accordingly remitted by the appellant No.3/Land Acquisition Officer to the concerned Court of Senior Civil Judge, Rawalpindi, being References No.2 of 1996 and 14 of 1996. These references were proceeded together and were finally disposed of by the Court of Senior Civil Judge/Referee Judge, Rawalpindi, vide judgments dated 1-2-2006 and 2-4-2006 respectively, whereby in one case the amount of compensation awarded by the Land Acquisition Collector was enhanced to Rs.125,000/-, 100,000/- and 75,000/- per kanal for categories "A", "B" and "C" respectively, with further increase in the percentage of compound interest and compulsory acquisition charges and in the other case (Reference No.14 of 1996) compensation was enhanced from Rs.60,000/- to Rs.70,000/- per kanal with 8% per annum interest. The present appellants, being aggrieved by these two judgments of the Referee Judge then preferred R.F.As. Nos.70 of 2006 and 71 of 2006 before the Lahore High Court, Rawalpindi Bench, which were dismissed by the common impugned judgment.
3. Sardar Muhammad Aslam, learned Advocate Supreme Court for the appellants in both the appeals, at the outset of his submissions, has taken us to the contents of paragraph No.6 of the impugned judgment, which read as under:--
"6. These appeals have been filed on behalf of the beneficiary of the acquisition, Province of Punjab and on behalf of the Land Acquisition Collector. Province of Punjab and beneficiary of acquisition are not necessary parties as has been held in the case of BP Pakistan Exploration and Production, through attorney v. Sher Ali Khawaja and another (PLD 2008 SC 400). The appeal to the extent of appellants Nos.1, 2 and 4 is incompetent and is dismissed.".
4. In order to fortify his submission that the above conclusion recorded by the High Court is contrary to the applicable law, he has referred before us the judgment in the case of Land Acquisition Collector v. Muhammad Nawaz (PLD 2010 SC 745) delivered by a honourable six Member Bench of this Court, relevant discussion wherein reads as under:
"7. It is pertinent to mention here that out of the aforesaid sections, sections 18(3) and (4), 22-A, 54 of the Land Acquisition Act as well as depriving a company or a local authority of the right of appeal in Proviso the section 50(2) of the Act are repugnant to the injunctions of Islam as held by the Shariat Appellate Bench of this Court vide judgment dated 18-2-1991 in Shariat Appeal No.7/89. A cut off date was fixed by the Shariat Appellate Bench for the competent bodies for necessary amendment in the aforesaid sections till 30-9-1991. The Shariat Appellate Bench further held as under:
"The proposed amendments would advance remedy to an aggrieved party. It would be fair and just to give a right to make a reference, file a cross-objection, lead evidence and file an appeal to those parties who have been denied such a right under sections 18, 22-A, 50 and 54 of the Land Acquisition Act.".
As stated by the learned counsel for the parties that province of the Punjab had not yet amended the said provision in accordance with the directions of the Shariat Appellate Bench judgment dated 18-2-1991 in Shariat Appeal No.7/1989. According to Article 203-D, (3)(b) if any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, such law or provision shall to the extent to which it is held to be so repugnant cease to have effect on the day on which the decision of the Court takes effect. The aforesaid provisions mentioned herein above which were declared against the injunctions of Islam after 30th September, 1991. The aforesaid provision of Land Acquisition Act including provision of section 50(2) of the Act barring right of appeal to Federal Government/beneficiaries shall cease to have effect, therefore, now after the cut off date the Federal Government/beneficiaries have a right to file an appeal, as per judgment of the Shariat Appellate Bench. This fact was not noted by the learned High Court while rendering the impugned judgments. It is settled principle of law that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise Court is not complete excuse in the matter as law laid down in Muhammad Sarwar v. The State (PLD 1969 SC 278).".
5. On the basis of above discussion, further submission of the learned Advocate Supreme Court for the appellants is that due to such grave illegality the appellants have been condemned unheard, therefore, the impugned judgment is liable to be set aside and the case is to be remanded to the High Court for deciding both the appeals on merits, after affording due opportunity of hearing to all the concerned parties. His next submission is that on merits too, the Award dated 27-11-1995, passed by the Land Acquisition Collector, EHV WAPDA, Lahore, categorizing the acquired land admeasuring 301.03 kanals into three classes "A", "B", "C" and awarding compensation at the rate of Rs.75,000/-, Rs.50,000/- and Rs.26,000/- per kanal respectively with 15% compulsory acquisition charges etc., is strictly in conformity with the provisions of sections 23 and 24 of the Act of 1894 qua the ground realities and the facts of the case. Therefore, the judgments dated 1-2-2006/2-4-2006, passed by the Court of Senior Civil Judge/Referee Judge in References Nos.2 of 1996 and 14 of 1996, as upheld by the High Court through its impugned judgment are the outcome of gross misreading and non-reading of evidence and thus, liable to be set aside.
6. The learned Advocate Supreme Court for respondents No.16, 20 to 22, Mr. Muhammad Asif Chaudhry, has conceded to the first submission of the learned Advocate Supreme Court for the appellants to the extent that in view of the ratio of judgment in the case of Land Acquisition Collector v. Muhammad Nawaz (supra), the dismissal of the two appeals filed on behalf of appellants Nos.1, 2 and 4, without due opportunity of hearing to them, was illegal and on that account alone the impugned judgment is liable to be set aside, so as to afford them full opportunity of hearing before final adjudication of these appeals. However, as to the merits of the case, he stated that since the case is being remanded to the High Court for rehearing of the appeals, therefore, all issues relating to the quantum of compensation etc. and its merits or otherwise per the judgments dated 1-2-2006/2-4-2006, passed by the Referee Judge shall also be left open for fresh adjudication by the High Court.
7. The perusal of case record reveals that on behalf of respondents Nos.1 to 3, 5 and 6 in Civil Appeal No.19 of 2009, nobody has bothered to place his appearance, while respondents Nos.4, 7 and 8 in Civil Appeal No.19 of 2009 and respondents Nos.1 to 15, 17 to 19 and 23 to 27 in Civil Appeal No.20 of 2009 have been already declared ex parte.
8. We have carefully considered the submissions of the learned Advocate Supreme Courts for the parties, perused the case record and found that the ratio of judgment in the case of Land Acquisition Collector v. Muhammad Nawaz (supra) is squarely applicable to the facts of the case in hand and thus on this score alone the impugned judgment, which is common in both the appeals, is liable to be set aside with the directions that the R.F.As Nos.70 of 2006 and 71 of 2006 shall be heard afresh by the High Court and decided on merits and in accordance with law.
9. As a sequel of the above discussion, the impugned judgment is set aside and the case is remanded to the Lahore High Court, Rawalpindi Bench for hearing R.F.As Nos.70 of 2006 and 71 of 2006 afresh, after affording due opportunity of hearing to all the concerned parties, preferably within three months.
MWA/W-1/S
Before Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ
WAPDA and others---Appellants
versus
BASHIR HUSSAIN SHAH and another---Respondents
Civil Appeals Nos. 19 and 20 of 2009, decided on 13th April, 2015.
(On appeal from judgment of Lahore High Court, Rawalpindi Bench dated 27-10-2008 passed in RFAs Nos. 70 and 71 of 2006).
Land Acquisition Act (1 of 1894)---
----Ss. 18(3)(4), 22-A, 50(2), proviso & 54-Constitution of Pakistan, Art.203-D(3)(b)---Appeal against award---Right of Federal Government or beneficiary of acquired land to file appeal---Scope---Necessary parties to the appeal---Appeals filed by Land Acquisition Collector and Provincial Government (beneficiary of the acquisition) were dismissed by the High Court on the grounds that beneficiaries of acquisition were not necessary parties as per the Land Acquisition Act, 1894---Legality---Provisions of Ss.18(3)(4), 22-A, 50(2) & 54 of Land Acquisition Act, 1894, barring right of appeal to Government/beneficiary (of the acquisition) had been declared as repugnant to Injunctions of Islam by Shariat Appellate Bench of Supreme Court vide judgment dated 18-2-1991 in Shariat Appeal No.7/89, after fixing a cut-off date till 30-9-1991, for making therein necessary amendments by competent bodies---According to Art.203-D(3)(b) of the Constitution, any law or its provision declared by Shariat Appellate Court as repugnant to Injunctions of Islam would cease to have effect on date on which its decision would take effect---Government/beneficiaries (of acquisition) after expiry of such cut-off date would have right to an appeal---Impugned judgment of High Court was set aside and case was remanded to the High Court for hearing afresh, after affording due opportunity of hearing to all the concerned parties---Appeal was allowed accordingly.
Land Acquisition Collector v. Muhammad Nawaz PLD 2010 SC 745 ref.
Sardar Muhammad Aslam, Advocate Supreme Court for Appellants (in both appeals).
Nemo for Respondents Nos. 1-3, 5 and 6 (in C.A. No.19 of 2009).
Ex parte: Respondents Nos. 4, 7 and 8 (in C.A. No.19 of 2009)
Muhammad Asif Chaudhary, Advocate Supreme Court for Respondents Nos.16, 20-22 (in C.A.No.20 of 2009).
Ex parte: Respondents Nos. 1-15, 17, 19, 23-27 (in C.A.No.20 of 2009).
Date of hearing: 13th April, 2015.
JUDGMENT
ANWAR ZAHEER JAMALI, J.---These two appeals arise out of the common judgment dated 27-10-2008, passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, in R.F.As Nos:70 of 2006 and 71 of 2006, filed by the appellants, whereby to the extent of appellants Nos.1, 2 and 4 these appeals were dismissed being incompetent and for the remaining appellant No.3, they were dismissed, being devoid of merit.
2. Briefly stated, relevant facts of the case are that for the benefit of appellants Nos.1 and 2 (WAPDA), an area of 301.03 kanals, situated at village Badana Khurd, Tehsil Taxila, District Islamabad was acquired by appellant No.3 for the benefit of appellant No.1. After completion of codal formalities, a consolidated award dated 27-11-1995 was passed, whereby the Land Acquisition Collector had, for the purpose of compensation, classified the acquired land into three categories "A", "B", "C" and awarded compensation at the rate of Rs.75,000, Rs.50,000/- and Rs.26,000/- per kanal respectively, along with 15% compulsory acquisition charges etc. Two groups of land owners, being dissatisfied with such award, had submitted objections under section 18 of the Land Acquisition Act, 1894 ("the Act of 1894"), which were accordingly remitted by the appellant No.3/Land Acquisition Officer to the concerned Court of Senior Civil Judge, Rawalpindi, being References No.2 of 1996 and 14 of 1996. These references were proceeded together and were finally disposed of by the Court of Senior Civil Judge/Referee Judge, Rawalpindi, vide judgments dated 1-2-2006 and 2-4-2006 respectively, whereby in one case the amount of compensation awarded by the Land Acquisition Collector was enhanced to Rs.125,000/-, 100,000/- and 75,000/- per kanal for categories "A", "B" and "C" respectively, with further increase in the percentage of compound interest and compulsory acquisition charges and in the other case (Reference No.14 of 1996) compensation was enhanced from Rs.60,000/- to Rs.70,000/- per kanal with 8% per annum interest. The present appellants, being aggrieved by these two judgments of the Referee Judge then preferred R.F.As. Nos.70 of 2006 and 71 of 2006 before the Lahore High Court, Rawalpindi Bench, which were dismissed by the common impugned judgment.
3. Sardar Muhammad Aslam, learned Advocate Supreme Court for the appellants in both the appeals, at the outset of his submissions, has taken us to the contents of paragraph No.6 of the impugned judgment, which read as under:--
"6. These appeals have been filed on behalf of the beneficiary of the acquisition, Province of Punjab and on behalf of the Land Acquisition Collector. Province of Punjab and beneficiary of acquisition are not necessary parties as has been held in the case of BP Pakistan Exploration and Production, through attorney v. Sher Ali Khawaja and another (PLD 2008 SC 400). The appeal to the extent of appellants Nos.1, 2 and 4 is incompetent and is dismissed.".
4. In order to fortify his submission that the above conclusion recorded by the High Court is contrary to the applicable law, he has referred before us the judgment in the case of Land Acquisition Collector v. Muhammad Nawaz (PLD 2010 SC 745) delivered by a honourable six Member Bench of this Court, relevant discussion wherein reads as under:
"7. It is pertinent to mention here that out of the aforesaid sections, sections 18(3) and (4), 22-A, 54 of the Land Acquisition Act as well as depriving a company or a local authority of the right of appeal in Proviso the section 50(2) of the Act are repugnant to the injunctions of Islam as held by the Shariat Appellate Bench of this Court vide judgment dated 18-2-1991 in Shariat Appeal No.7/89. A cut off date was fixed by the Shariat Appellate Bench for the competent bodies for necessary amendment in the aforesaid sections till 30-9-1991. The Shariat Appellate Bench further held as under:
"The proposed amendments would advance remedy to an aggrieved party. It would be fair and just to give a right to make a reference, file a cross-objection, lead evidence and file an appeal to those parties who have been denied such a right under sections 18, 22-A, 50 and 54 of the Land Acquisition Act.".
As stated by the learned counsel for the parties that province of the Punjab had not yet amended the said provision in accordance with the directions of the Shariat Appellate Bench judgment dated 18-2-1991 in Shariat Appeal No.7/1989. According to Article 203-D, (3)(b) if any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, such law or provision shall to the extent to which it is held to be so repugnant cease to have effect on the day on which the decision of the Court takes effect. The aforesaid provisions mentioned herein above which were declared against the injunctions of Islam after 30th September, 1991. The aforesaid provision of Land Acquisition Act including provision of section 50(2) of the Act barring right of appeal to Federal Government/beneficiaries shall cease to have effect, therefore, now after the cut off date the Federal Government/beneficiaries have a right to file an appeal, as per judgment of the Shariat Appellate Bench. This fact was not noted by the learned High Court while rendering the impugned judgments. It is settled principle of law that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise Court is not complete excuse in the matter as law laid down in Muhammad Sarwar v. The State (PLD 1969 SC 278).".
5. On the basis of above discussion, further submission of the learned Advocate Supreme Court for the appellants is that due to such grave illegality the appellants have been condemned unheard, therefore, the impugned judgment is liable to be set aside and the case is to be remanded to the High Court for deciding both the appeals on merits, after affording due opportunity of hearing to all the concerned parties. His next submission is that on merits too, the Award dated 27-11-1995, passed by the Land Acquisition Collector, EHV WAPDA, Lahore, categorizing the acquired land admeasuring 301.03 kanals into three classes "A", "B", "C" and awarding compensation at the rate of Rs.75,000/-, Rs.50,000/- and Rs.26,000/- per kanal respectively with 15% compulsory acquisition charges etc., is strictly in conformity with the provisions of sections 23 and 24 of the Act of 1894 qua the ground realities and the facts of the case. Therefore, the judgments dated 1-2-2006/2-4-2006, passed by the Court of Senior Civil Judge/Referee Judge in References Nos.2 of 1996 and 14 of 1996, as upheld by the High Court through its impugned judgment are the outcome of gross misreading and non-reading of evidence and thus, liable to be set aside.
6. The learned Advocate Supreme Court for respondents No.16, 20 to 22, Mr. Muhammad Asif Chaudhry, has conceded to the first submission of the learned Advocate Supreme Court for the appellants to the extent that in view of the ratio of judgment in the case of Land Acquisition Collector v. Muhammad Nawaz (supra), the dismissal of the two appeals filed on behalf of appellants Nos.1, 2 and 4, without due opportunity of hearing to them, was illegal and on that account alone the impugned judgment is liable to be set aside, so as to afford them full opportunity of hearing before final adjudication of these appeals. However, as to the merits of the case, he stated that since the case is being remanded to the High Court for rehearing of the appeals, therefore, all issues relating to the quantum of compensation etc. and its merits or otherwise per the judgments dated 1-2-2006/2-4-2006, passed by the Referee Judge shall also be left open for fresh adjudication by the High Court.
7. The perusal of case record reveals that on behalf of respondents Nos.1 to 3, 5 and 6 in Civil Appeal No.19 of 2009, nobody has bothered to place his appearance, while respondents Nos.4, 7 and 8 in Civil Appeal No.19 of 2009 and respondents Nos.1 to 15, 17 to 19 and 23 to 27 in Civil Appeal No.20 of 2009 have been already declared ex parte.
8. We have carefully considered the submissions of the learned Advocate Supreme Courts for the parties, perused the case record and found that the ratio of judgment in the case of Land Acquisition Collector v. Muhammad Nawaz (supra) is squarely applicable to the facts of the case in hand and thus on this score alone the impugned judgment, which is common in both the appeals, is liable to be set aside with the directions that the R.F.As Nos.70 of 2006 and 71 of 2006 shall be heard afresh by the High Court and decided on merits and in accordance with law.
9. As a sequel of the above discussion, the impugned judgment is set aside and the case is remanded to the Lahore High Court, Rawalpindi Bench for hearing R.F.As Nos.70 of 2006 and 71 of 2006 afresh, after affording due opportunity of hearing to all the concerned parties, preferably within three months.
MWA/W-1/S
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