PLJ 2024 Quetta (Note) 67
Present: Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ.
SECRETARY COMMUNICATION AND WORKS, GOVERNMENT OF BALOCHISTAN, QUETTA and others—Appellant
versus
MIRWAIS KHAN and another--Respondents
C.M.A. No. 11 of 2022, decided on 17.10.2022.
Land Acquisition Act, 1894 (I of 1894)--
----S. 18--Construction of fly-over--Acquisition of land--Bifurcation of land--Reference filed--Assessment of price--Reference allowed--order of trial Court was challenged--Referenced dismissed--Time-barred--Direction to--Opportunity of producing evidence--Appeal--Delay of five months--The impugned judgment and decree was challenged after delay of five (05) months which had not been explained--Initially Law and Parliamentary Office’s vide letter addressed to AG Balochistan requested for filing appeal against impugned judgment, which was duly replied to Appellant No. 2 that no plausible reason had been provided for delay caused in filing appeal, further appellant No. 2 was directed to explain reason of delay caused and also initiate enquiry against concerned officials who sent appeals to AG Office after lapse of stipulated period--The query of AG Balochistan was not replied with, appeal was not filed through AG Office--It is settled principle of law that where an appeal is not filed within stipulated period creates valuable rights in favour of opposite party, such valuable rights cannot be taken away unless very strong, convincing and solid Grounds are shown for condoning delay--In absence of any valid explanation of delay for each and every day, mere assertion that appellants were unable to accord necessary sanctions timely from law department was not sufficient to condone delay of 5 months and 6 days, as such, instant appeal was not maintainable--Appeal dismissed.
[Para 9 & 10] A, B & C
Mr. Shahid Baloch, Additional A.G for Appellant.
M/s. Rehmatullah Barrech and Ahsanullah Kakar, Advocates for Respondents.
Date of hearing: 3.10.2022.
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 realization 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 purpose of construction of fly-over at SariabPhatak, 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 years 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 respondents 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 submitted, 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 appellants 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 & 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 memo. 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 the 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. Atta Muhammad and another PLD 2008 S.C. 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 condoned 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 appellants were unable to accord necessary sanctions timely from the law department assertion that the 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.
(J.K.) Appeal dismissed
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