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Civil Revision Petition No. 87 of 1959, decided on 7th March 1960.

S.18(3) [as added by Land Acquisition (Punjab Amendment) Act (XII of 1954)]‑Local authority applying to Collector for reference of award to Court‑Local authority's right to refer, subsequently withdrawn by Land Acquisi sition (West Pakistan Amendment) Act (President's Act IV of 1957), which withdrawal remained intact by virtue of Land Acquisi tion (West Pakistan. Amendment) Act (XXVII of 1955)‑Local Authority's Reference to Court to be disposed of on merits Interpretation of Statutes‑Reference unaffected by subsequent withdrawal, of right‑‑Reference not invalid for being sent through Collector‑Objection not raised before Court deemed to have been waived.

The Collector's award was made on 14th March 1957, and the application to Collector for reference to Court was made by the local authority (Corporation of City of Lahore) on 8th May 1957, when the right to make the application was still in force by virtue of the amendment of the original Act by the Land Acquisition (Punjab Amendment) Act (XII of 1954). The President's Act (IV of 1957), which deleted the words extending the right (to make a reference) to a local authority or a company, came into force on 6th July 1957, followed by a regular Act i.e., the Land Acquisition (West Pakistan Amendment) Act (XXVII of 1958) which continued the deletion.

Held, that on the date on which the applications were submitted the Corporation was entitled to make a reference to the Collector and the District Judge had jurisdiction to hear the matter. A jurisdiction with respect to a proceeding which is pending before a Court is not taken away by a statute which henceforth puts an end to that jurisdiction unless there be something in the amending statute to this effect.

The application for reference filed by the Corporation had not become incompetent by subsequent amendment and must be proceeded with.

Held, further, that the reference was not invalid for being sent through Collector.

In the Land Acquisition Act there is no provision for the "presentation" of an application under section 18, Land Acquisi tion Act, 1894 to the District Judge. All that section 18 (3) says is that the Corporation can make a reference. It does not specify the method for making the reference. 1f the Corporation simply sent a reference to the District, Judge without its being formally presented by a properly authorised attorney or counsel, it could not be said that there was no proper application. If instead of being sent through an agent, it is sent through the Collector, the reference does not become invalid.

Ladgard v. Bull I L R 9 All. 191 considered.

In any case, the objection not having been raised before the District Judge (Court) should be deemed to have been waived.

Proceeding wrongly "presented"‑Proper party subsequently appearing and pursuing proceeding‑Proceedings deemed to be "sufficiently presented".

"Power to do a certain thing in a certain way or not at all"‑Dictum not of unrestricted application‑ "Substantial" compliance with procedure enough.

When power is granted to do a certain thing in a certain way, then the method prescribed has to be complied with but only substantially. The rule laid down by their Lordships in A I R 1936 P C 253: Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all other methods of performance are necessarily forbidden" will not invalidate any proceedings where the law is substantially com plied with, though the result may be different where there is a refusal altogether to comply with the law.

Nazir Ahmad v. King‑Emperor A I R 1936 P C 253 and Tariq Transport Co., Lahore v. Sargodha‑Bhera Bus Service P L D 1958 S C (Pak.) 437 ref.

Ghias Muhammad and Mazhar‑ul‑Haq for Petitioner.

K. E. Chauhan, Muhammad Saleem and A. H. Najfi for Respondent.

Date of hearing : 7th March 1960.

This judgment will dispose of Civil Revision Nos. 87 and 88 of 1959, which arise out of orders passed by the District Judge, Lahore, in proceedings under the Land Acquisition Act.

2. Some land had to be acquired by the Corporation of the City of Lahore, and a notification under section 9 of the Land Acquisition Act was issued on the 13th December 1952. A notification under section 6 followed on the 3rd of October 1953. On the 19th of November 1953 decision was taken by the Corporation of the land in dispute and a notice under section 9 was issued by the Collector, inviting persons interested to put in their claims for compensation. At one stage during the proceedings the Corporation wanted to drop the acquisition proceedings altogether, but the owners of property objected, and as the matter had gone to a fairly advanced stage the pro ceedings continued. On the 14th of March 1957, the Collector delivered his award in the two cases with which I am dealing. On the 8th of May 1957, the Corporation put in two applica tions under section 18 of the Land Acquisition Act, claiming that the amount awarded was excessive and asking for a reference to the District Judge. The Collector forward the proceedings to the District Judge. The District judge came to the conclusion that the Corporation was not entitled to make a reference at all under the Land Acquisition Act and dismissed the applications of the Corporation. The Corporation filed application: for review of this order but without success. In these two revision petitions the orders of the learned District Judge holding that the proceedings before him were incompetent are challenged.

3. The only question for decision is whether the Corporation could have made a reference to the District Judge for a decision of the dispute as to valuation. The section of the Land Acquisition Act which deals with objections to the award of the Collector is section 18 which, as it originally stood ran as follows :‑‑

"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 determina tion of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person 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 shall 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." It will be observed that it is only a "person interested" who is entitled to move the Collector for a reference to the District Judge. "Person interested" has been defined in section 3 (b) which runs:‑--

"The expression "person interested" includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act ; and a person shall be deemed to be interested in land if he is interested in all easement affecting the land."

Although the word "includes" is used, the definition does suggest that it is only the persons who assert a claim to the payment of compensation as are within this definition, but the matter has been made clear so far as a Company or local authority is concerned by section 50 of the Act which runs :‑

"50. (1) Where the provisions of this Act are put in force for the purpose of acquiring 'land at the cost of any fund controlled or managed by a local authority or of any Company, the charges of and incidental to such acquisition shall be defrayed from or by such fund or Company.

(2) In any proceeding held before a Collector ox 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."

The last part of this section debars a Company or a local authority from demanding a reference under section 18, although the Company may take part in the proceedings before the Collector. The position therefore, in the Act, as it originally stood, would appear to be that neither the Government nor a Company or a local authority for whose benefit land was acquired, could prefer any objection to the valuation of the Collector.

4. In order to enable the Government and the local authority o: Company, subsection (3) was added to section 18 by the Land Acquisition (Punjab Amendment) Act (XII of 1954). The amending section of this Act runs :‑

"8. The following shall be deemed to have been added as subsection (3) to section 18 of the said Act:

"(3) Notwithstanding anything to the contrary contained in section 21, the Provincial Government or a local authority or a company for which land is being acquired may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award, provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for enquiry into and determination of the objection against the award."

It will be observed that by this provision the Provincial Govern ment as well as a local authority or a company was entitled to refer the matter to the Court. There is a difference in language of the first and third parts of section 18. Under the first part, which entitles a person interested to object to the award, an application is to be submitted to the Collector for a reference to the Court, whereas under the third part the Govern ment or a local authority or a company can itself refer the matter to the Court.

5. Had this amendment continued, there probably was not much to decide in the present revision applications, but by means of Act IV of 1957, which was a President's Act, the words "a local authority or a company for which land is being acquired" were omitted from subsection (3). The President's Act was followed by the Land Acquisition (West Pakistan Amendment) Act (XXVII of 1958), which is a permanent statute, the President's Act having expired. The words used in Act XXVIII of 1958 are the same as in the President's Act. The amending section says "In subsection (3) of section 18 of the said Act as added by the Land Acquisition (Punjab Amendment) Act, 1954, the words "or a local authority or a company for which land is being acquired" shall be omitted."

6. As already stated, the award has in this case been made on the 14th of March 1957 and applications by the Corporation had been filed on the 8th of May 1957. On the 8th of May 1957 as yet the amendment effected by Act XII of 1954 was in force. The President's Act which deleted the words relating to a local authority or a company came into force on the 6th of July 1957. It is thus clear that on the date on which the applications were submitted the Corporation was entitled to make a reference to the Collector and the District Judge would have jurisdiction to hear the matter. A jurisdiction with respect to a proceeding which is pending before a Court is not taken away by a statute which henceforth puts an end to that jurisdiction unless there be something in the amending statute to this effect. The main argument of learned counsel for the respondents is that in the present case the intention of the President's Act as well as of Act XXVII of 1958 was to take away jurisdiction with retrospective effect and for this proposition he relies upon the words of the amending section. He refers to the introduction of subsection (3) by Act XII of 1954, which, he contends, is retrospective in effect, and he argues that as the original amendment was retrospective and the new amendment refers to the subsection "as added", the intention here too was to make the deletion retrospective. Now I am prepared to assume that the introduction of subsection (3) to section 18 was intended to have retrospective effect for, according to the section which introduced this amendment, this subsection is to be "deemed to have been added", but the mere fact that the introduction of subsection (3) was to be with retrospective effect will not necessarily lead to the conclusion that the use of the words 'as added' was intended to create a retrospective effect. The words "as added" had to be used because subsection (3) had been later added and did not exist in the original Act. According to the contention of learned counsel for the respondents, the words "as added" were deliberately used for the purpose of creating retrospective effect, but if the legislature was consciously using these words to create retrospective effect, why could it not use clear words 7 It could have said that the words "local authority or a company" were to be deemed never to have existed in subsection (3). It is to be kept in mind that section 3 of Act XXVII of 1958 does not make an amendment in the amendment but in the Act itself. If section 3 had said that from the Amending Act of 1954 the words referring to local authority or a company were to be deleted, there may have been a possible argument that as the words we deleted from the amendment, the intention was that they should be deemed as never having been inserted in subsection (3). I do not know if I will be prepared to accept even that argument, but in any case the present amendment only says that the words "local authority or a company" in subsection (3) "shall be omitted" and that can only mean that they shall henceforth be omitted. At the same time, we have to take note of the period that elapsed between the introduction of subsection (3) and the deletion of the words "local authority or company". Sub‑ section (3) had been introduced on the 17th of April 1954 and the deletion of the words occurred in July 1957. If I am to accept the argument of learned counsel for the respondents then all the proceedings relating to a local authority or a company which had been taken in the meantime would be null and void, although .in those cases awards may have been changed by the District Judge or by the High Court on appeal I will not impute to the legislature an intention of nullifying all the pro ceedings which were taken validly before the District Judge or in the High Court in the absence of a clear intention to the contrary. I hold, therefore, that the petitions filed by the Corporation have to be proceeded with and have not become incompetent on account of the subsequent amendment.

7. Another objection taken on behalf of the respondents is that in the present case there was not a proper reference under section 18 (3). They rely on the fact that instead of approaching the District Judge direct the Corporation submitted applications to the Collector for reference to the District Judge. The objection is too technical to be given effect to and I am not prepared to accept that even technically it is quite correct. Subsection (3) only says the local authority may refer the matter to the Court. It does not say what from this reference is to take. If instead of approaching the District Judge direct' a reference is made to the District Judge through the Collector, can it be said that the matter has not been referred to the Court The Corporation had appeared before the District Judge in support of the reference made and proceedings had been taken by the District Judge on the reference. The best that could be urged in favour of the respondents was that the reference should be deemed to have been made only on the date on which the proceedings actually reached the District Judge, but before me there is no objection as to the proceedings having become time‑barred on that account. The limitation provided in subsection (3) is six months. 1t is not the case of the respondents that within six months proceedings were not taken by the District Judge. Nor is there any objection that proceedings had not reached the District Judge before the deletion of the words "local authority or company". Learned counsel for the respondents relies upon some judgments where it has been held that if a case be transferred from a Court which has no jurisdiction to try it, the proceedings before the transferee Court will also be not in accordance with law. Reliance has been placed particularly on the judgment of their Lordships of the Privy Council in Ladgard v. Bull (ILR 9 All. 191). In that case a suit with regard to patent, which had to be instituted in the Court of the District Judge, was instituted in the Court of the Senior Subordinate Judge who had no jurisdiction to try it. On application being made to the District Judge, he transferred the case to his own file. An objection was taken at the earliest stage by the defendant that the District Judge had no jurisdiction to pass the order of transfer at all and, therefore, the proceed ings before the District Judge had not been properly initiated and were void. To this objection the defendant struck throughout the proceedings. He even moved the High Court for setting aside the order of transfer passed by the District Judge. Their Lordships of the Privy Council expressed the opinion that even though there be no lack of inherent jurisdiction in a Court to try a particular proceeding, still if there be irregularities with respect to the initiations of the proceeding and the defendant takes objection to the jurisdiction of tae Court on account of such defect, then the proceedings would not be in accordance , with law and should be set aside, but if no objection to the irregularity in the initiation of proceedings is taken . and there is a trial on merits, the proceedings would be perfectly valid. It is convenient to quote here a passage from their Lordships' judgment where they deal with this matter. Their Lordships say‑"The defendant pleads that there was no jurisdiction in respect that the suit was instituted before a Court incompetent to entertain it, and that the order of transference was also incompetently made. The. District Judge was perfectly competent to entertain and try the suit if it were competently brought, and their Lordships do not doubt that, in such a case, a defendant may be barred, by his own conduct, from objecting to irregularities in the institution of the suit. When the Judge has no inherent jurisdiction over the subject‑matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure which, if objected to at the time, would have led to the dismissal of the suit. The present case does not come strictly within these authorities, because the defendant's plea was stated before issue was joined on the merits, and in reliance on that plea, he objected to the case being tried and withheld his objections to the validity of the patent. It is, therefore, necessary to consider the facts from which their Lordships are asked to infer that the defendant did, in point of fact, waive all objection to the competency of the suit, and engage that the cause should be tried on its merits by the District Judge."

8. There is no analogy in the case before their Lordships and the present case. Here there was no transfer of a case from the Court of Collector where it may have been pending without juris diction to the Court of the District Judge. The matter in dispute was in the present case being referred through the Collector to, the District Judge. Nor can it be said that there was any defect in the initiation of the proceedings in the present case. The defect before their Lordships was that a plaint which had under the law to be "presented" to the Court which was to try the suit had not been presented to it. In the Land Acquisition Acts there is no provision for the "presentation" of an application under section 18 to the District Judge. All that section 18 (3) says is that the Corporation can make a reference. It does not specify the method for making the reference. If the Corporation simply sent a reference to the District Judge without its being formally presented by a properly authorised attorney or counsel, it could not be said that there was no proper application. If instead of being sent through an agent, it is sent through the Collector, the reference does not become invalid.

9. There are some questions which do arise in my mind with regard to the trial by a Court to which a plaint has not been properly presented, and I must state them. Suppose a case which was pending in a Court which had no jurisdiction was transferred to a Court which had jurisdiction. The order of transfer was not valid in law, but the plaintiff was appearing before the transferee Court in support of his plaint and the defect in the order of transfer was discovered. In order to validate the proceedings before that Court what is it that the plaintiff should do 7 When this question is put to the learned counsel for the respondents all that he can say is that the plaintiff should first take the plaint back then present the plaint to the very same Court saying "I present it". I am not at all impressed by this technical objection. When a person appears in a Court in support of a plaint then he is presenting the plaint and asking for a decision on it. In questions relating to limitation where a plaint or appeal is not presented by the proper person we always regard the plaint or appeal having been presented on the date on which the party itself or a properly authorised person appears before the Court to prosecute the case. I do not see why the same principle should not be applicable to a case where the plaint or appeal has not been properly presented and has been received under an invalid order of transfer. Con sistently with what we have been holding in cases of limitation we would have to hold that on the date on which the party appears in Court in prosecution of its case it has sufficiently presented the plaint. I do not see what difference it would make if the party also took hold of the plaint when it appeared in Court and said "I am presenting it". It cannot be denied that if he had done that the proceedings would henceforth be valid and with jurisdiction.

10. Even on the principle of waiver as enunciated by their Lordships of the Privy Council, the proceedings before the District Judge would be valid. There was no objection before the District Judge that the proceedings before him were incompetent on the ground that the application had not been submitted to him but had come through the Collector. As will appear from the perusal of their Lordships' judgment, it is necessary that the party should take such an objection before the case is tried on merits.

11. Reliance has also been placed on the judgment of their Lordships of the Privy Council on Nazir Ahmad v. King Emperor (AIR 1936 P C 253), where their Lordships said that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. This judgment is frequently being cited by counsel in support of strict compliance with procedural provisions and I intend dealing with it at some length. The case before their Lordships was one under sections 164 and 364, Criminal Procedure Code. The appellant before their Lordships had been convicted on the strength of a confession said to have been made before a Magistrate which had not been recorded in accordance with section 164, Criminal Procedure Code. The Magistrate had been directed by the District Magistrate to go to the scene of occurrence in order that the accused may point out the various places connected with the dacoity. While the accused was pointing out places he made a confession before the Magistrate who took rough notes and later prepared a memorandum from them which was signed by him and which also contained a certificate that the Magistrate believed the confession to have been made voluntarily. The question before their Lordships was whether the oral statement of the Magistrate before the Sessions Judge as to the confession by the accused was admissible in evidence It has been conceded on behalf of the prosecution that the Magistrate did not purport at all to act under section 164, Criminal Procedure Code. The conten tion was that there was no need to comply with section 164 and that the evidence as to the confession would be admissible in the same way as if the confession had been made to a person who was not a Magistrate. Their Lordships held that the evidence was inadmissible. The actual decision would be an authority only for the proposition that evidence as to a confes sion made to a Magistrate cannot be given unless the provisions of section 164 are complied with. During the course of the discus sion, however, their Lordships relied on a principle which they stated in the following words:

"Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."

It is contended on behalf of the respondents, as it is generally contended by counsel in cases where they are arguing in favour of a strict interpretation of a procedural matter, that the rule laid down by their Lordships precludes any departure from the procedure which is provided for the exercise of a power.

12. A number of propositions appear to me to be evident in connection with this argument. The first is that their Lord ships could not possibly be lying down a; rule that all provisions relating to procedure are mandatory. If the argument of the learned counsel for the respondents were to be accepted, then any departure from the provisions of the Civil Procedure Code by a Civil Court would render proceedings invalid for power is given to the Civil Court to decide a matter in accordance with the Civil Procedure Code and, therefore, the Civil Procedure Code must be complied with. Yet the contention can hardly be put forward by any person that all provisions of the Code of Civil Procedure are mandatory and failure to comply with any of them would result in nullifying the proceedings.

13. Their Lordships were dealing with a case where the Magistrate did not purport to comply with the procedure provided at all. Had he purported to act in accordance with the procedure provided and had complied with it not strictly but only sub stantially, any irregularity could have been cured under section 533, Criminal Procedure Code. Their Lordships did refer to section 533, but said that it had no application because the Magistrate was not acting under section 164, Criminal Pro cedure Code. So the clear distinction between a case where a provision relating to procedure is not fully complied with and the case before their Lordships is that in the case before their Lordships there was a denial of the need of complying with procedure at all. The result may have been altogether different if the contention was that the procedure had been substantially complied with. When power is granted to do a certain thing in a certain way, then the method prescribed has to be complied with but only substantially. The rule laid down by their Lordships will not invalidate any proceedings where the law P is substantially complied with, though the result may be different where there is a refusal altogether to comply with the law. Their Lordships of the Supreme Court of Pakistan have, in Tariq Transport Co., Lahore v. Sargodha‑Bhera Bus Service (P L D 1958 S C (Pak,) 437), laid down that any irregularity in procedure adopted by an officer authorised by law to pass a certain order will not render the order illegal unless the irregularity be material. What is laid down by their Lordships of the Supreme Court is not in any way inconsistent with what was laid down by their Lordships of the Privy Council in Nazir Ahmad v. King‑Emperor.

14. Another rule laid down by their Lordships was one which will not always apply but which may be proved applicable. That is why after stating the rule their Lordships went fully into the provisions of sections 164 and‑ 364, Criminal Procedure Code, and pointed out that they would be rendered nugatory if a confession made before a Magistrate without compliance with section 164, Criminal Procedure Code, was also admissible in evidence. Had the rule been of general application, the whole of the discussion would have been unnecessary. There would have been 'no need to rely on the fact that otherwise the pro cedural provisions would have no effect.

15. I have already held that the petitions filed by the Corporation have not become incompetent and have to be proceeded with. These revision petitions are accepted and the orders of the learned District Judge refusing to exercise juris diction are set aside. The District Judge now proceed to hear the references on the merits. There shall be no order as to costs. I may state there that the Corporation has deposited in the treasury some amounts for payment to the respondent to which they are admittedly entitled, whatever may be the result of the reference before the District Judge. These amounts the respondents shall be entitled to withdraw from the treasury.

A.H. Petitions accepted.

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