2023 C L C 752
[Balochistan]
Before Muhammad Ejaz Swati and Sardar Ahmad Haleemi, JJ
The SECRETARY COMMUNICATION AND WORKS, GOVERNMENT OF
BALOCHISTAN, QUETTA and another ----Petitioners
Versus
MIRWAIS KHAN and 6 others ----Respondents
Civil Miscellaneous Appeal No.11 of 2022, decided on 17th October, 2022.
(a) Land Acquisition Act (I of 1894) ---
----S.54 ---Limitation Act (IX of 1908) S.5--- Appeal ---Limitation ---Condonation of delay---
Scope ---Appellants assailed judgment and decree passed by T rial Court ---Appeal was filed
after a delay of 05 months ---Appellants had not been able to sufficiently explain the
inordinate delay within the parameters of law and the only reason furnished by the appellants was that they had been unable to accord the ne cessary sanctions from law department timely -
--In the absence of any valid explanation of the delay for each and every day, the appeal was not maintainable ---Appeal was dismissed.
(b) Limitation Act (IX of 1908)---
----S.5 ---Dismissal of suit, instituted, after period of limitation ---Scope ---Where an appeal is
not filed within stipulated period, it creates valuable rights in favour of the opposite party, such valuable rights cannot be taken away unless very strong, convincing and solid grounds are shown for condoning the delay.
Government of Pakistan through Ministry of Works and another v. Messrs Malbrow
Builders, Contractor, Sialkot 2006 SCMR 1248 and Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462 rel.
Shahid Baloch, Additional A.G. for Appel lants.
Rehmatullah Barrech and Ahsanullah Kakar for Respondents.
Date of hearing: 3rd October, 2022.
JUDGMENT
SARDAR AHMAD HALEEMI, J. ----This appeal is directed against the judgment
and decree dated 13th March, 2021 (hereinafter the "impugned judgment and decree") passed
by the learned Additional Sessions Judge -X, Quetta (hereinafter the "trial Court"), whereby
the Reference filed by the respondents under section 18 of the Land Acquisition Act, 1894
(hereinafter the "Act, 1894") against the award dated 14th May, 2011 was accepted, wherein
the rate of the property in question total measuring 2061 sq.ft. was enhanced from Rs.4200/ -
per sq.ft. to Rs. 5,000/ - per sq.ft. in addition to 15% compulsory acquisition charge from the
date of accrual till realizatio n of amount.
2. The facts, in brief of the instant appeal are that the predecessor in interest of the
respondents filed a reference under Section 18 of the Act, 1894 against the appellants with the averments that the Government of Balochistan for the purpo se of construction of fly- over
at Sariab Phatak, Quetta acquired lands measuring 145019 sq.ft. comprising Ward Nos. 7, 8 and 9 Urban- II, Tehsil and District, Quetta City, wherein the respondent No.4 while
bifurcating lands into following categories also fixed compensation/price lands as under:
Category -A the lands fall in Ward No.9 @ 5000/ - per sq.ft.
Category -B the lands fall in Ward No.8 @ Rs. 4,200/ - per sq.ft.
Category -C the lands fall in Ward No. 7@ Rs. 3,500/ - per sq.ft.
3. It was further case of the respondents that the compensation / price assessed on the
basis of average rate of three years lands transaction affected in the said Mohal and Mouza during the year 2008 -2009 and 2010 and as regards the Ward No.8 where the land of the
respondents was situated, same had neither been sold out by the respondents or their co-owners nor any transaction during such period had been affected; that the land of the
responde nts situated at Ward No.8, was very costly; the respondents through respondent
No.1 contacted the appellants and demanded Rs. 15,000/ - per sq.ft as compensation, which
was not entertained and thereafter the respondents repeatedly approached the appellants, but
no response was given, as such, the respondents filed a complaint to the higher authorities i.e. the Chief Secretary, wherein while taking action, the Board of Revenue was directed to submit report in this regard; consequent thereto, report was submit ted, wherein the
compensation of the land of the respondents was not at par worth market rates, hence the respondents approached this Court by way of filing C.P., which was later on withdrawn. After completion of acquisition proceedings, the appellant No.2 announcement the award
dated 14th May, 2011 wherein the price of commercial property of respondents was assessed less than of the market value; which had caused great prejudice to the respondents, thereafter, the respondents filed the reference.
4. The ap pellants contested the reference on the ground that after given due
consideration, the award was announced after completion of all codal formalities under the Act, 1894 as well as per market rate prevailing in the area.
5. Out of divergent pleadings of the parties, issues were framed. Whereafter, the trial
Court after adducing evidence from both the parties, allowed the reference vide impugned judgment and decree, hence this appeal.
6. Heard the learned counsel for the parties and perused the record.
7. Perusal of record reveals that the Government of Balochistan acquired lands for the
purpose of over -fly at Sariab Phatak, Quetta, which was carried out under the Act, 1894,
wherein, the respondent No.4 bifurcated the lands into three categories, detail whereof is
given in para No.2 (supra). Consequent thereto, for the said purpose, the Communication and Works Department acquired the landed property of the respondents measuring 145019 sq.ft. bearing different Khasra numbers situated at Mahal and Mouza Ward Nos. 7, 8 and 9, Tappa
Urban 2 and 3, Tehsil City, District Quetta after fulfilling all the codal formalities and thereafter the appellant No.2 announced the award on 14th May, 2011 in presence of land owners and valued the same as per categories mentioned in para No.2 supra.
8. The respondents thereafter filed a Reference under section 18 of the Act, 1894, which
was dismissed by the learned Additional District Judge -III, Quetta vide judgment dated 5th
September, 2013 being barred by time, which was challenged before this Court. This Court vide order dated 10th April, 2017 remanded the matter back to the Court of learned Additional District Judge -III, Quetta with the direction to decide the same after providing
opportunity of producing evidence.
9. Perusal of mem o of appeal reveals that the impugned judgment and decree dated
13.03.2021 was challenged on 16.09.2021 after delay of five (05) months which has not been explained. It further reveals that initially the Law and Parliamentary Office's vide letter dated 8th July, 2021 addressed to Advocate General Balochistan requested for filing appeal against
the impugned judgment, which was duly replied vide letter dated 11.08.2021 to appellant No.2 that no plausible reason has been provided for the delay caused in filing the appeal,
further the appellant No.2 was directed to explain the reason of delay caused and also initiate
enquiry against the concerned officials/officers, who sent the case/appeals to Advocate General Office after lapse of stipulated period. The query of Advocate General Balochistan was not replied with, therefore, the appeal was not filed through the Advocate General Office.
10. The contents of application for condonation of delay reveals that the appellants have
not been able to sufficiently explain t he inordinate delay of 5 months and 6 days within the
parameters of law and the only reason furnished by the appellants is that they have been unable to accord necessary sanctions from law department timely, therefore, we see no sufficient cause to condone the delay. It is settled principle of law that where an appeal is not
filed within stipulated period creates valuable rights in favour of the opposite party, such valuable rights cannot be taken away unless very strong, convincing and solid grounds are shown for condoning the delay. In this regard reliance is placed in the case of Government of
Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractor, Sialkot, 2006 SCMR 1248, wherein it held as follows: -
"The question of limitation being not a mere technicality cannot be taken lightly and the rights accrued to the other party due to limitation cannot be snatched away without sufficient cause and lawful justification."
Similar view has been taken in the case of Imtiaz Ali v. At ta Muhammad and another
PLD 2008 SC 462, wherein it held as under:
"The appeal, having been filed after one day of the period of limitation, had created
valuable right in favour of the respondents, and as such even the delay of only one day was not condone d by the Hon'ble Supreme Court as no sufficient cause was found
for filing the appeal beyond the period of limitation."
Thus, in absence of any valid explanation of the delay for each and every day, mere
assertion that the appellants were unable to accord necessary sanctions timely from the law
department is not sufficient to condone the delay of 5 months and 6 days, as such, the instant appeal is not maintainable.
11. For the above reasons, the appeal is dismissed.
SA/190/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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