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Writ Petition No. 65 of 1984, decided on 1st October, 1985.

‑‑‑S. 18‑‑Acquisition of land‑‑Objection petition‑‑Question of limitation‑ Competency to decide such question‑‑Collector, held, was competent to take decision on limitation with regard to objection petition and forwarding same to Court for adjudication if same filed within statutory time limit‑‑No appeal was competent against such exercise of jurisdiction by Collector.‑‑[Appeal (civil)‑‑Limitation].

‑‑‑ Such principle, held,, was to be read in every statute where same was not specifically provided for, unless expressly or by necessary intendment otherwise provided for in statute.

‑‑‑Art. 9‑‑Land Acquisition Act (I of 1894), S. 18‑‑Limitation‑‑Constitu tional jurisdiction, exercise of‑‑Collectors decision on limitation not appealable‑ ‑Decision of Authority exercising appellate power, not vested in it by law, set aside by High Court in constitutional jurisdiction‑ Requirements of natural justice, having not been adhered to by Collector, case was remanded with direction that objection petition filed against acquisition of property be treated as pending and decided afresh after hearing parties in accordance with law.‑‑[Limitation‑‑Appeal (civil)].

S. Ibne Ali, A.A.‑G. for Petitioners.

Haider Zaman Khan for Respondents.

Date of hearing: 1st October, 1985.

.‑‑In connection with the construction of Khanpur Dam, the property of Faqir Muhammad was also acquired by the Acquisition Collector, Khanpur Dam Project, who announced his Award No 106 on 26‑2‑1976 relating to that acquisition. Faqir Muhammad was said to be a lunatic and for the management of his affairs and property one Karam Sher made an application to the Court of Additional District Judge, Haripur requesting therein that he be appointed guardian of the lunatic for the said purpose. This petition was accepted and on 22‑10‑1981 an order was made by the Court under the Lunacy Act, 1912 appointing Karam Sher as guardian of the property of Faqir Muhammad. Certain conditions were also attached to this appointment. After having been so appointed as guardian of the lunatic, Karam Sher filed objection petition before the Collector requesting therein that the property of Faqir Muhammad, acquired through Award No. 106 made on 26‑2‑1976, had been undervalued and that no compensation had been allowed in respect of the house which was then existing in the land mentioned in that petition. It was further stated in that petition that since Faqir Muhammad was a lunatic and since Karam Sher had been appointed as his guardian by the competent Court on 22‑10‑1981 so the objection petition made was within time and that the same be forwarded to the Court constituted for the purpose for adjudication. By order, dated 24 1‑1982, however. Land Acquisition Collector dismissed the objection petition on the ground that it had been made after a lapse of five years, ten months and 18 days from the date of award and was, therefore, barred by limitation. This order was, surprisingly, conveyed to Faqir Muhammad and not to his guardian appointed by the Court. Aggrieved by this order, Karam Sher, guardian of Faqir Muhammad, filed appeal before the Commissioner, Hazara Division, who after hearing the same made on 11‑1‑1984 an order the operative part whereof is reproduced hereunder in extenso:‑

"Brief facts of the case giving rise to this petition are that Land Acquisition Collector, Khanpur acquired the property for the ward/petition through Award No. 106, dated 26‑2‑1976. The petitioner being of unsound mind, his amount was received by the guardian on 9‑5‑1981 after the civil Court at Haripur, appointed him guardian of the estate of Faqir Muhammad and the certificate to this effect was issued on 22‑10‑1981. The learned counsel for the petitioner argued that Land Acquisition Collector was bound to forward the objection petition and he had no authority to refuse it as time‑barred. It was also stated at the bar that the guardian 'had received the amount of the award on 27‑6‑1981, without protest and the objection petition was rightly rejected as time‑barred. He drew my attention to section 18‑A(i) of the Act. The amendment has since been repealed by Land Acquisition (West Pakistan Amendment) Ordinance, 1969.

Hence the order passed by the Land Acquisition Collector, Khanpur is without jurisdiction, the appeal is accordingly accepted,"

Aggrieved by the aforesaid order of the learned Commissioner, the Chairman WAPDA, and the Land Acquisition Collector Khanpur Dam Project, have filed this Constitutional petition assailing that order on the grounds mentioned herein.

2. Syed Ibne Ali, Additional Advocate‑General, appeared on behalf of the petitioners and Mr. Haider Zaman Khan, Advocate appeared on behalf of the respondents. They were heard and the record of the case carefully gone through with their assistance.

3. The learned Additional Advocate‑General argued that the property which belonged to Faqir Muhammad respondent had been acquired under the Land Acquisition Act (hereinafter referred to as the said Act) and the objection petition had also been filed' under the said Act. He contended that under section 18 of the said Act objection petition could be filed within the period prescribed therein and it was for the Collector to decide whether or. not the objection petition had been filed within the prescribed period. His contention was that the Collector was the sole Judge in the matter in so far as the limitation was concerned, and if in his view the objection petition had been filed beyond the period prescribed in section 18 of the said Act, then he was competent to take a decision that being time‑barred the objection petition should not be forwarded to the Court for adjudication. He further contended that once such a decision had been taken by the Collector who had the jurisdiction to take that decision, the order was final and was not appealable to the Commissioner as there was no provision in the said, Act to that effect. He argued that the impugned order made by the learned Commissioner being without jurisdiction was a nullity, thus of no legal consequence.

4. The learned counsel for the respondents argued that it was wrong to say that the Collector was competent to take decision not to forward the objection petition made by an aggrieved person to the Court on the ground that it was barred by limitation under section 18 of the said Act. He contended that once an objection petition was filed before the Collector, he had no option but to forward it to the Court for adjudication of the matters stated therein. In regard to the powers of the Commissioner to intervene in such like situations, the learned counsel submitted that the Collector being his subordinate on executive said, the Commissioner, had the power to upset the order made by the Collector, even though it had been made in exercise of statutory powers. His other argument was that even if it be assumed for the sake of arguments that the learned Commissioner had no jurisdiction under the said Act to make the order impugned herein, yet the order made by the Collector being illegal could be set aside by the Commissioner even by an illegal order and that in such situation this Court may not exercise extraordinary jurisdiction to set at naught the order made by the learned commissioner. His precise argument was that an illegal order could be set aside even by an illegal order and in such cases High Courts generally do not interfere, in exercise of their Constitutional jurisdiction in the last order so that an illegality committed by a public functionary is not allowed to perpetuate.

5 We have given our anxious consideration to the arguments addressed at the bar. It cannot be denied that the property of Faqir Muhammad had been acquired under the said Act and the objection petition had also been filed thereunder. It is true that section 18 of the said Act gives to the aggrieved person a right to file an objection petition against the award. However, it further provides that in the circumstances mentioned therein such objection petition has to be filed within the period therein stated The objection petition is also to be filed before the Collector and it is he who has to take steps to forward the same to the Court constituted for the purpose for adjudication. It is, therefore, illogical to say that the Collector before whom the objection) petition is filed has no jurisdiction to determine whether or not it has been made within the time limit prescribed in section 18 of the said Act. That being so, as a necessary corollary, it would follow that if the objection petition is not made within the time limit prescribed in the said section, then it may not be forwarded to the Court for adjudication. We are, therefore. in agreement with the learned Additional Advocate‑General that in this case the Collector was legally competent to determine whether or not the objection petition filed before him on behalf of Faqir Muhammad was within time. We also agree with him that the Collector was competent to take a decision not to forward to the Court for adjudication the objection petition which in his view had been filed beyond the period prescribed under section 18 of the said Act. It is also undisputable that there is no provision in the said Act authorising the Commissioner to hear appeal against the order made by the Collector refusing to forward the objection petition to the Court for adjudication as being time‑barred. We are unable to accept the contention of the learned counsel for the respondents that as an Executive head the Commissioner could, by an executive order, set aside the order made by the Collector in exercise of the power given to him by the statute. Such a suggestion, if accepted, would not only invest the executive hierarchy with powers to upset statutory order made by their subordinates, but would also amount to reading in the relevant law a provision which does not exist there. We are, therefore, constrained to observe that the learned Commissioner wrongly assumed jurisdiction to make the order impugned herein and his order, on that score ' being a nullity was of no legal consequence.

6. The matter, however, does not end here as we have to attend to the last argument of the learned counsel for the respondents, which in our view was more important in the circumstances of this case. The argument was that this Court may not upset the illegal order made by the learned Commissioner because by that order the illegality committed by the Collector in not forwarding the objection petition made on behalf of Faqir Muhammad to the Court was corrected. From the record placed before us it is evident that in the objection petition allegations were made that Faqir Muhammad, who was affected by the award of the Acquisition Collector, was a person of unsound mind and for that reason Karam Sher had been appointed his guardian by the Court having jurisdiction in the matter. It was further urged in the same petition that because of that reason and on account of late appointment of Karam Sher as guardian of the property of Faqir Muhammad, objection petition had been made after a lapse of many years. We have noticed that the learned Collector while rejecting the objection petition on the ground that it ‑was barred by limitation even did not care to give notice to the guardian of Faqir Muhammad before making that order nor did he attend to the aforesaid allegations made in the petition. Where such were the allegations as made in the objection petition, it was incumbent upon the Collector to have at least heard the guardian of Faqir Muhammad, and if necessary to have made summary enquiry into the facts alleged in the petition, before making an adverse order against the objector in not forwarding his objection petition to the Court of adjudication. This principle of natural justice, it is undisputable, is to be read in every statute where it is not specifically provided for, unless expressly or by necessary intendment otherwise provided for in the statute, which was not the case here. On this ground, therefore, the order made by the learned Collector was not immune from attack.

7. In the result, though we hold that the impugned order made by1 the learned Commissioner being without jurisdiction has no legal existance, yet we would, after also setting aside the order made by the Collector, remand the case to him with the direction to deem the objection petition filed on behalf of Faqir Muhammad as pending and after hearing the guardian of Faqir Muhammad as well as the authorities representing WAPDA, and after making summary enquiry, if deem appropriate by him, to redecide the matter in accordance with law. We shall make no order as to costs.

A. A. Order accordingly.

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