2012 M L D 32
[Balochistan]
Before Jamal Khan Mandokhail and Abdul Qadir Mengal, JJ
NATIONAL HIGHWAY AUTHORITY through General Manager ---Petitioner
Versus
Mehrullah Khan and another ---Respondent
Civil Miscellaneous Application No.14 of 2007, decided on 16th August, 2011.
Land Acquisition Act (I of 1894) ---
----S. 18 (3) [as amended by Land Acquisition (Balochistan Amendment) Ordinance (V of
2000), S. 2] ---Civil Procedure Code (V of 1908), O. XX, R. 5 ---Appeal by acquiring
authority ---Maint ainability ---Acquiring authority was aggrieved of increase of compensation
made by Trial Court on reference filed by landowners ---Plea raised by acquiring authority
was that judgment passed by Trial Court was violative of the provisions of O.XX, Rule 5,
C.P.C.---Contention of landowner was that appeal was not maintainable as same could only
be filed by Provincial Government and not by the acquiring authority ---Validity ---In view of
the amendment in law, authority for whom land was to be acquired had the rig ht to file
appeal, thus appeal was rightly and competently filed by acquiring authority ---Trial Court
while deciding reference neither framed any issue nor called any evidence to ascertain the
contents of reference or to consider objections filed by acquir ing authority ---Provisions of
Civil Procedure Code, 1908, were applicable to proceedings under Land Acquisition Act,
1894, as far as procedure for conducting the case and decision of reference was concerned ---
By not adopting proper procedure i.e. framing o f issues and recording of evidence, Trial
Court acted illegally and unlawfully ---Judgment passed by Trial Court was not in conformity
with the provisions of O.XX, R. 5 C.P.C. and the same was an illegality and irregularity on
the part of Trial Court ---High Court set aside the judgment passed by Trial Court and
remanded the matter for decision afresh after framing of issues, recording of evidence and
hearing the parties ---Appeal was allowed in circumstances.
Pakistan Atomic Energy Commission and others v. Land Acquisition Collector and
others 2008 SCMR 1280 distinguished .
Muhammad Qahir Shah for Appellant.
S.A.M. Quadri for Respondent No.1
ORDER
JAMIL KHAN MANDOKHAIL, J. ---Facts in brief are that a land was acquired for
the purpose of construction o f road by the appellant and award in this behalf was prepared by
the Revenue Authorities. The respondent No.1 feeling aggrieved from the award submitted a
Reference before the Court of Addl: District Judge, Kalat. The trial Court after hearing the
parties, accepted the reference by means of order dated 30 -10-2007, hence this appeal.
2. Learned counsel for the appellant pointed out that the order dated 30 -10-2007 passed
by the Additional District Judge, Kalat is contrary to the Provision of Order XX Rule 5,
C.P.C., as neither any issue had been framed nor any evidence has been recorded to ascertain
the matter. According to him, the impugned order is not only illegal, but also a non -speaking
one. According to the learned counsel the impugned order is nullity i n the eyes of law and
requested for setting aside of the same.
3. Learned counsel for the respondent supported the impugned order and stated that the
appellant "the National Highway Authority" is not competent to file the appeal, as the
Provincial Governme nt alone is competent to file appeal in view of the provision of section
18 of the Land Acquisition Act, 1894 (hereinafter referred to as the "Act"). Learned counsel
relied upon a judgment in case titled Pakistan Atomic Energy Commission and others v.
Land Acquisition Collector and others" reported in 2008 SCMR 1280. Learned counsel
further argued that the order of the trial Court is based upon proper appraisal of the evidence,
therefore, no illegality has been committed.
4. We have heard the learned counse l for the parties and have gone through record.
Before deciding the case on merits, we propose to decide the objection of the learned counsel
for the respondent regarding maintainability of the appeal.
5. It is to be noted that initially, under section 18 of the Act, only the Provincial
Government was authorized to file an appeal against an order or judgment and decree passed
by the Courts below. It is observed that pursuant to the judgment of the Hon'ble Federal
Shariat Court, the Government of Balochistan , on 21st September, 2000, brought an
amendment in the sections 18(3), 20, 22 -A, 31 and 50 of the Act through the Land
Acquisition (Balochistan Amendment) Ordinance V of 2000, which is reproduced as under: --
"2. Amendment of section 18 of Act I of 1894. ---In the Land Acquisition Act, 1894,
in its application to the Province of Balochistan, hereinafter referred to as the said
Act, in subsection (3) of section 18, for the words "the Provincial Government", the
words and commas "the Federal Government, the Provincial Government, a Company
or a local authority, as the case may be, "shall be substituted."
6. In view of the amendment in the law, the concerned Authority for whom the land is to
be acquired has the right to file an appeal. Thus, in such view of the matter, the present
appeal has rightly and competently been filed by the appellant. In this behalf this Court in the
present case has already held that the appeal is competent by means of order dated 14 -7-
2009. As far as the case -law relied upon by the counsel for the respondent is concerned, facts
and circumstances of the same are different than the facts of the present case. Since the
amendment has been made in the law pertaining to the Balochistan which point was not
under discussion before the Ho n'ble Supreme Court of Pakistan, therefore, the citation relied
upon is not applicable in the present case.
7. Now considering the merits of the appeal, we have observed that the trial Court while
deciding the reference has neither framed any issue nor cal led any evidence to ascertain the
contents of the reference or to consider the objection filed by the appellant. The provisions of
the Civil Procedure Code are applicable to the act, as far as the procedure for conducting of
the case and decision of the re ference is concerned. By not adopting the proper procedure i.e.
framing of issues and recording of the evidence, the trial Court acted illegally and
unlawfully. The order impugned in our opinion is not in conformity with the Provision of
Order XX, Rule 5, C.P.C. which is an illegality and irregularity on the part of the trial Court.
Thus, in view of what has been discussed hereinabove, we are inclined to accept the
appeal, set aside the impugned order dated 30 -10-2007 passed by the Additional District
Judg e, Kalat. The reference shall be deemed to be pending before the trial Court, who should
after framing issues, recording evidence and hearing the parties to decide the same strictly in
accordance with law possibly within a period of six months.
M.H./98/Q Case remanded.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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