Find a Lawyer

Civil Appeal No.50 of 1986, decided on 10th December, 1988.

(On appeal from the judgment of the High Court dated 4 7 1985, in Writ Petition No. 50 of 1985).

S.44 Appeal to Supreme Court time barred by fifteen days Condonation of delay when to be allowed Appellant"s plea that High Court having heard preliminary arguments, had reserved the order, announcing the same subsequently without notice to him and that he came to know about the disposal of petition on a particular date Such plea supported by affidavit was not controverted by respondents by counter affidavit Perusal of High Court"s interim order did not show whether the order was reserved or announced on the crucial date Condonation of delay in filing appeal was allowed by Supreme Court in circumstances.

Ss.18 & 23 Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44 Acquisition of land by Government for the benefit of appellant Department Appellant"s entitlement to be impleaded in acquisition proceedings Appellant cannot claim to be impleaded in the proceedings arising out of acquisition proceedings Land had been acquired by the Government, at the instance of appellant, therefore, interests of appellant would be defended by the Government Appellant"s position would just be of a "person", for whose benefit such land had been acquired Appeal by appellant being incompetent was dismissed in circumstances.

Nihal Chand and others v. Dist. Board Mianwali A I R 1936 Lah. 564; The State of Maharashtra Works Department v. Bapurao Dnyanoba Chiddarwar and others A I R 1973 Bom. 231; Land Acquisition Collector II Tarbela Dam Resettlement Organisation, WAPDA and others v. Haji Hakim Khan and 41 others P L D 1976 Pesh. 50, Brigade No.l, Chattar Domel & Garhi Dopatta through Military Estate Hazara v. Custodian Evacuee Property and 7 others P L J 1982 AJK 55; Sind Industrial Trading Estate Ltd. v. First Assistant Judge, Hyderabad, West Pakistan & 4 others P L D 1960 Kar. 826, The Pabna Electric Supply Co. Ltd. v. Kaliprashad Bhattiacharyya and another P L D 1960 Dacca 461 and Kasimbhai and another v. The Deputy Commissioner Dadu and others P L D 1968 Kar. 126 ref.

Raja Muhammad Hanif for Appellant.

Kh. Muhammad Saeed for Respondents.

This appeal, by leave, has been directed against the judgment of the High Court dated 4 7 1985, whereby the writ petition filed by the appellant, herein was dismissed in limine.

2. The brief facts giving rise to the present appeal are that: the land comprising survey No.1629, which was allotted to Kh. Noor Muhammad, was acquired beside some other land for the use of the Army vide award dated 31 7 1970. At the initiation of the respondent, a reference, was made to the District Judge which was rejected on 29 6 1974. Kh. Noor Muhammad, respondent, went up in appeal before the High Court which succeeded on 30 4 1979, and the compensation money was enhanced vide judgment of the High Court dated 31 10 1984. The Collector Land Acquisition called upon the appellant to deposit additional amount in view of the judgment of the High Court. The appellant feeling aggrieved by the order of the Collector filed a petition for leave to appeal in this Court which was dismissed by the learned Chief Justice on 8 1 1985 on the ground that as the appellant was not a party either in reference or before the High Court, he was not competent to seek leave to appeal. However, it was observed by the Court that the appellant, if so advised, may seek the redress of his grievance by resorting to appropriate proceedings. Consequently, the appellant preferred a writ petition before the High Court on the ground that as the appellant was not made a party in reference or in appeal before the High Court, he was not bound to deposit the additional amount in pursuance of the judgment of the High Court. The learned Single Judge in the High Court dismissed the writ petition in limine holding that as the land was acquired by the Government, the appellant was not a necessary party either before the District Judge or in the appeal filed in the High Court. Thus, the contention of the appellant that the orders of the High Court and that of the Collector are without lawful authority was repelled and the writ petition was dismissed in limine.

3. We have heard the arguments and gone through the file. A preliminary objection has been raised by the learned counsel for the respondents that the appeal was time barred by 15 days. It has be contended by the learned counsel for the appellant that the High Court had heard the preliminary arguments in the writ petition on 4 7 1985 and reserved the order. Subsequently, no notice was issued to the appellant and he came to know about the disposal of the petition on 12-9 1985. He has further argued that he did not know that the impugned order was passed by the High Court on 4 7 1985. There is an affidavit in support of the aforesaid assertions; no counter affidavit has been filed by the respondents. The perusal of the interim order dated 4 7 1985 shows that it is not recorded that either the order was reserved or it was announced. In view of the fact that there is an affidavit in support of the said contention and the fact that the interim order dated 4 7 1985 does not incorporate that the order was announced, we are of the view that this is a fit case in which the delay in filing the appeal should be condoned. Hence, the preliminary objection raised by the learned counsel for the respondents is hereby repelled and the delay in filing the appeal is hereby condoned,

4. It has been contended by Raja Muhammad Hanif, the learned counsel for the appellant, that the Federation of Pakistan was necessary party and should have been impleaded as such in the appeal filed in the High Court. His case is that although the land in question was acquired by the Azad Jammu and Kashmir Government yet the same was acquired for the Army purposes at the instance" of the Government of Pakistan, as such the Federation of Pakistan was necessary party in the proceedings. According to the learned counsel the Federation of Pakistan should have been impleaded as respondent in the High Court. Elucidating his argument, the learned counsel has further submitted that as the compensation amount is to be paid by the Government of Pakistan the Federation of Pakistan was a necessary party. The learned counsel has cited following authorities in support of his contention:

In Nihal Chand and others v. Distt. Board Mianwali [A.I.R. 1936 Lah. 564], it was held that the party for whom the land is acquired can. only assist the Collector on the question of amount of compensation to be paid to the claimant. It cannot apparently assist the Collector on the question of the area acquired though this may affect the amount of the compensation. Thus, it was opined that the Secretary of the State through the Collector was a necessary party. Apparently, the aforesaid authority does not help the case of the appellant, because it is nowhere "held that a company, person or Corporation for whose benefit the land is acquired is necessary party in the proceedings and should be impleaded as such.

In The State of Maharashtra Works Department v. Bapurao Dnyanoba Chiddarwar and others [A.I.R. 1973 Bom. 231], it was held that the real person who would be interested in challenging the enhanced compensation made by the Court in a reference under Section 18 is the Government; and if the Collector acting as an agent of the Government can file an appeal, it cannot be said that if the Government itself files an appeal that would be incompetent. Thus, it was opined that the Government was also competent Ao file an appeal. It may be observed here that in the instant case the position of the Government of Pakistan is not synonymous with the Government of Azad Jammu and Kashmir. The land has been acquired for the benefit of Army at the instance of the Government of Pakistan yet it has been acquired by the Azad Jammu and Kashmir Government. Thus, there can be hardly any controversy 0that it is the Government of the State of Azad Jammu and Kashmir which was to defend the interests of the Government of Pakistan and the position of the Federation of Pakistan would be merely that of a person for whose benefit the land is acquired.

In Land Acquisition Collector II Tarbela Dam Resettlement Organisation, WAPDA and 2 others v. Haji Hakim Khan and 41 others [P L D 1976 Pesh. 50], it was held that as the WAPDA being the Department of the Government of Pakistan was entrusted with the task of carrying on a project on behalf of the Government, it was competent to file an appeal. Thus; the authority has also no bearing on the facts of the case in hand, because in the instant case the appeal has not been preferred by the Army acting as the agent of the Government of Pakistan; rather the appeal was filed by the appellant and the Government of Azad Jammu and Kashmir and Collector were impleaded as respondents.

5. The learned counsel for the respondents, Kh. Muhammad Saeed, has argued that the authorities cited by the learned counsel for the appellant have no bearing to the facts of the present case. He has contended that the principle enunciated in the authorities cited by the learned counsel appearing on behalf of the appellant does not controvert the proposition that only the Government or the Collector is necessary party in the acquisition proceedings. The learned counsel has argued that there is ample authority for the proposition that the authority for whose benefit the land is acquired is not a necessary party in proceedings. The learned counsel has referred some authorities in support of his contention.

In Brigade No.l, Chattar Domel & Garpi Dopatta through Military Estate Hazara v. Custodian Evacuee Property and 7 others [P.L.J. 1982 AJK 55], the land was acquired by the Government of Azad Jammu and Kashmir for the benefit of the Army. The Army Authorities preferred an appeal against the judgment and decree of the District Judge in the High Court. An objection was raised that as only the Government of Azad Jammu and Kashmir could file appeal and not the representatives of the Army, the appeal was incompetent. It .was held that the authorities or the company concerned for whose benefit the land is acquired is competent to appear and adduce evidence for the purpose of determining the amount of compensation but such authority or agency was not competent to initiate reference or prefer an appeal against the judgment and decree made or initiate a reference. It was held that only the Government was competent to prefer an appeal.

In Sind Industrial Trading Estate Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and 4 others [P L D 1960 Kar. 826], a writ petition was filed by the authority concerned for whose benefit the land is acquired and the award was challenged. It was held that the Court was not bound to issue notice to the company or the local authority for whose benefit the land was acquired; the writ petition was dismissed. The facts of the case are identical to the facts of the case in hand.

In The Pabna Electric Supply Co. Ltd. v. Kaliprashad Bhattiacharyya and another [P L D 1960 Dacca 461], it was held that the company benefiting from the land acquired had no right to ask for reference under section 18 or to prefer an appeal against the decision made upon such reference.

In Kasimbhai and another v. The Deputy Commissioner Dadu and others [P L D 1968 Kar. 126], the appeal was not filed by the Government but the same was preferred by the authority for whose benefit the land was acquired. It was held that the local authority has no privity with the owners of the land and cannot claim to be impleaded as a party.

6. The survey of the case law on the subject leaves no doubt in our mind that a party for whose benefit the land is acquired cannot claim to be impleaded as such in the proceedings arising out of acquisition proceedings. In the instant case the appellant seeks to deprive the respondents to get the benefit from the dictum which was passed in their favour by the Court of competent jurisdiction on the ground that as they were not made party in the High Court, C they were not bound by the judgment of the said Court. It has already been pointed out that the appellant cannot be regarded as necessary party in the proceeding arising out of the award. Therefore, it was not necessary that the appellant should be arrayed in the line of the respondents.

In the light of what has been stated above finding no force in this appeal it is hereby dismissed. In the circumstances of the case we make no order as to the costs.

A.A./235/SC(AJK) Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.