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Petitioner: HABIBULLAH KHAN AND 4 OTHERS VS Respondent: COLLECTOR, QUETTA
Court Name: Balochistan High Court Judge(s): Muftikhar-ud-Din, Muhammad Jaffar Naim Title: HABIBULLAH KHAN AND 4 OTHERS vs COLLECTOR, QUETTA Case No.: Regular First Appeal No, 2 of 1979 Date of Judgment:1983-10-30 Reported As: PLD 1984 Quetta 11 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' MUFTAKHIR-UD-DIN, J-This Regular First Appeal under section 54 of the Land Acquisition Act, 1894 is preferred by the land-owners and is from the judgment of the learned District Judge, Quetta (Ch. Muhammad Aslam) dated 31st December, 1978, on a reference under section 18 of the Land Acquisition Act, 1894 (hereinafter called the Act of 1894) and is concerned with the question of what is the proper sum to be awarded to the appellants by way of compensation in respect of the acquisition by the Provincial government of Baluchistan of Lands situated in Chashma Baleli, Tappa Baleli on the request of P. I. D. C. To establish a Textile Mill at Baleli in colloboration with the Iranian Government. 2. The circumstances in which the land was acquired are as follows ' The P. I. D. C. Had requested the Government to acquire the land measuring 118 acres, 3 rods and 37 pols situated in Chashma Balali, needed for the establishment of a Textile Mill at Baleli and the Government for that purpose issued a notice under section 4 of the Act of 1894 on 20th March, 1975. Survey of the area was carried out and declaration as required under law was made vide Notification dated 18th June, 1975 by the Commissioner, Quetta Division. Since the matter was considered urgent and the acquisition was for public purpose, the emergency provisions of section 17, subsection (1) were invoked and it was required through a notice under section 9 of the Act of 1894 that on the expiry of fifteen days of the publication of notice, possession of the lands was to be taken by the Collecter. It was further declared that the provision of section 5(a) shall not apply to this case. Notices as required under section 9 were served on all the land-owners. The Collector started proceedings for the determination of compensation payable to the owners and ultimately vide his award dated 27th August, 1975, determined the compensation at the rate of Rs, 4,326-06
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per acre. This award was based on the two years average sale price of the land in locality as intimated by the Tehsildar, Quetta through the Assistant Commissioner, Quetta to the Collector. In addition to the amount of compensation the Collector has allowed 15% by way of solatium on account of compulsory nature of acquisition. The appellants owned 38 acres out of the total area acquired. Being dissatisfied with the award, the present appellants made an application on 8th September, 1975 and desired the Collector to make a reference to the Civil. Court. Since this application is to be referred in this judgment, it is necessary to reproduce the same :- "In the Court of Assistant Commissioner-mm-Collector in the Land Acquisition Act Quetta Division, Quetta. Date of Award 27-8-1975 ' Subject Acquisition of Land measuring 108-3-1937 acres situated in Chashma Baleli Tappa Baleli, Tehsil Quetta. ' The applicants who are owners of the land situate in Chashma Baleli, Tappa Baleli, Tehsil, Quetta which has been acquired by the Government begs to submit as under : - (1) That the applicants are owners of lands bearing Khasra Nos. 455, 461, 453, 454, 462, 464, 472, 456, 458, 460, 494, 469, 473, 477, 483, 491, 459, 468, 465, 466, 468, 470, 471, 474, 485 and 467, situated in Chashma Baleli, Tehsil Quetta. The above-stated land has been acquired for the purpose of Establishment of Bolan Textile Mill in Baleli by the Pakistan Industrial Corporation, Quetta. The notification for the acquisition of the said land as contemplated under section 4 was issued on 20-L-1975 vide No, 211/3/75 land and ultimately an award recommending the payment as compensation to shareholders of the above-said lands at the rate of Rs, 4,326.06 acre has been passed by the Collector, Quetta Division, Quetta vide his award No, 893/3/75-Land, dated Quetta 27-8-1975. (2) That the applicants who are the owners of above-stated lands are dissatisfied with award and are not prepared in any case to accept the same. The award has been given by the learned Collector, under the Land Acquisition Act, Quetta, without properly examining the facts and circumstances, necessary for determination of price of the land. The compensation has been assessed without any basis or justification and without looking into relevant factors. The decision arrived at and the award given by the Collector with regard to above-mentioned lands of the applicants is improper, arbitrary and highly prejudicial to the rights and interest of the land- owners. The relevant date, rise in prices and connected factors and circumstances which were placed before the Collector, Land Acquisition, Quetta and were available under his control in the nature of Revenue Record has been totally ignored by him. The amount of per acre compensation awarded by the Collector, Land Acquisition under the award in question is extremely low. It may, however, be also mentioned that the land in question was also brought under cultivation at different occasions by the landowners/appleants on the availability of water. Moreover in view of devaluation, sudden and general rise in prices increase in the market value of the disputed land. In the given circumstances the value of land per acre award by the Collector, Land Acquisition, Quetta is ridiculously low, minimum price of the land in question ought to have been Rs, 50,000 (Fifty thousand) per acre. It is not out of place to mention here that only recently near Baleli Customs Post, which is situated at greater distance from Quetta than the land in question and obviously is of lesser market value have been acquired for Baluchistan Constabulary at the rate of Rs, 25,000 per acre. Similarly within this year various other lands have been acquired at the rate much big than Rs, 25,000 per acre. Apart from that the applicants/land owners have also prepared the lands for making a garden and have thus spent huge amount on it. These are also wells existing over the lands. These facors have also not been taken into consideration, by the Hon'ble Collector, Land Acquisition, Quetta Division at the time of passing the impugned award. The award dated 27-8-1975, therefore, is improper, erroneous, illegal, mala fide, patently oppressive, arbitrary
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and clearly prejudicial to the interest of landlords/applicants. The compensation for land in question ought to have been fixed at rupees fifty thousand (50,000) per acre at the minimum. (3) That the measurement of the land in question has also not been properly made on account of which also the amount due has not been correctly calculated. ' It is accordingly respectfully prayed that reference be made to the Court of District Judge for determination of the exact area and the amount to which the applicant is lawfully entitled in view of the circumstances, in the interest of justice." ' Quetta, Applicants." ' Dated 8-9-1975. ' The Collector, Quetta forwarded the said application to the learned District Judge, Quetta and furnished information in respect of the land and in reply to the claim of Rs, 50,000 per acre as preferred by the appellants, it was contended that before the Tehsildar, Quetta some of the claimants had agreed to receive the compensation at the rate of Rs, 25,000 per acre. It was also pointed out by the Collector that the compensation was fixed keeping in view the provision of an Act of the Provincial Government of Baluchistan passed in the year, 1974 whereby maximum compensation payable per acre has been fixed at Rs, 25,000. 2-A. The learned District Judge, Quetta framed the following issues (1) What should be the price of land in question in the light of the value of the property of the adjoining land; (2) Whether the land in question is agricultural land and what should be the value of the land in view of such nature of classifications; (3) What should be the amount of compensation to be paid to the land-owners and what should be the term of answering the reference? ' According to the learned District Judge, Quetta the issues were interconnected and were framed for the determination of the compensation. The issues were disposed of jointly and after considering the evidence led by the appellants, the learned District Judge came to the conclusion that the appellants have failed to establish their case and the award of the Collector needed no interference. The application for enhancement of claim of compensation at a rate of Rs, 50,00 per acre was rejected on 31st December, 1978. Against this order of the learned District Judge, Quetta the present appeal has been filed and it has been prayed - "that the decree and orders of the learned District Judge, Quetta dated 31st December, 1978 be set aside and the appellants be awarded compensation at the rate of Rs, 50,000 per acre for the land belonging to them sad acquired by the Collector, Quetta Sub-Divisiout or the case be remanded to the Collector for the initiation of proceedings afresh under law. Cost of appeal may also be awarded to the appellants." 3. The memorandum of appeal contains numerous grounds but only the following have been urged before us (1) The acquisition being done on behalf of Pakistan Industrial Development Corporation under Act XVIII of 1974 (Baluchistan Acquisition of Land (Hou-ing and Development Schem6s) in the Rural Areas Act of 1974 which came in force on 13-8-1974), the liability was determinable under this Act of 1974. The initiation of proceedings to acquire the land under the Land Acquisition Act, 1894 and all steps taken in this behalf until the making of the award by the Collector, not having the sanction of law, are acts without jurisdiction, and are thus void. Consequently the initial assumption of the Authority by the Collector being unlawful, the entire superstructure built thereon is rendered illegal and ineffective. (2) The notice of acquisition issued by the Collector, Quetta Sub-Division purports under section 4 of the Land Acquisition Act, 1894 is without lawful authority, the land belonging to the appellants has not thus been lawfully acquired and is an act violative of Article 4 of the Constitution.
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(3) The evidence led by appellants about the price of land has not been properly appreciated; the evidence led by the appellants could not be discarded. (4) Sales of land of some mahal though in different mouzas should have been considered. (5) The judgment of the learned District Judge has .Failed to take notice of the principles enunciated under section 23 of the Act on which the market value is to be determined. (6) The copies of the awards filed by the appellants in the Court of the District Judge formed a good piece of evidence for determining the market value of the land in question. (7) The potential value of the property acquired has not been kept in view. The land could be used as a building site. (8) That there was no justification for calling a report from Tehsildar and considering the same for determination of average sale price. ' The grounds (1) and (2) being about'the validity and proprietary of the acquisition proceedings are outside the scope of section 18 of the Act of 1894. Apart from the fact that no conteution to that effect was raised in the application under section 18 of the Act whereby the reference for determination of compensation was sought and indeed such a contention can hardly be raised in appeal before us. ' The function of the Court upon a reference under section 18 begins from the procedure laid down in section 20 of the Act of 1894 and is made to determine the objections made by the interested persons. The scope of enquiry is to be restricted to a consideration of interest of the person effected by the objections (section 21) the Court has jurisdiction to consider the award; only by virtue of the reference made by the Collector and its jurisdiction to deal with the award is confined to the matters referred and that if the objecter wishes to take different objections falling under more than one of the different heads mentioned in section 18(1) should expressly state each of hi objections and subsection (2) requires him to set out the grounds on which his objection is taken. The Privy Council in (Kai) Pramatha Nath Mullick Bahadur v. Secretary of State (1), has held that the jurisdiction of the Court under this Act is a special one and strictly limited by the terms of sections 18, 20 and 21. It arises when a specific objection has been take to the Collector's award and it is confined to a consideration of that object. Once, therefore, it is ascertained that the only objection taken is the amount of compensation, that alone is the "matter" referred and the Court has no power to determine or consider anything beyond it. This judgment of the Privy Council was followed by Qadeer-ud-Din, J. (as he then was) in PLD 1961 Kar. 639 and it was observed by him that the validity and property of the order of acquisition cannot be challenged in proceedings under section 18 of the Act and are outside the scope of section 18 of the Act. The controversy stands resolved by the Supreme Court of Pakistan by the judgment reported in Ghulan: Muhammad v. Government of West Pakistan (2), wherein it has been held that under section 18 the reference is of a dispute with regard to the area or the quantum of the compensation or as to the apportionment of the same amongst the persons interested and this reference is strictly limited to the above matters. In the face of these authorities and in view of the clear intention of the legislative as expressed in the several sections contained in Part III of the Act we have no doubt in our minds that while dealing with a reference under section 18 of the Act the Court must confine itself to the matters mentioned in subsection (1) of that section and the Court is, therefore, not empowered to go behind the reference to examine the legality of the acquisition proceedings. We have therefore no hesitation in repelling the contentions as not well founded. 5. Before we consider the other grounds, we may mention that where the claimants are not satisfied with the award and move for a reference C to the Civil Court, the claimants must realize that they were in the position of the plaintiffs and if they do not lead legal evidence to show that the conclusions in the award were inadequate and the award offered unsatisfactory
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compensation, the award must be confirmed, because by the reference, they are asking for a judicial decision on the correctness of their claim and judicial findings on the market value of the property must inevitably depend upon the legal evidence produced before the Court. This principle of law that when a reference ,is made to a civil Court, the claimant is to be regarded as a plaintiff was considered and approved by the Privy Council in Azra's case (3). The same view was expressed by the Bombay High Court in AIR 1959 Born. 520 and very recently this view has been adopted by a Division Bench of Lahore High Court in the case of Province of Punjab v. Sher Muhammad (4). It is thus for the appellant to show as pointed out in AIR 1931 Lah. 364 that the assessm ent of the Land Acquiring officer/ Collector is wrong and is based on no good principles or is too low. 6. The consideration provided for determining the amount of compensation is only the market value of the land at the date of the publication of the notification under section 4 of the Act as contained in section 23(0 which reads :- "23(1) In determining the amount of compensation to be awarded for {{FOOT NOTE}} (1) AIR 1930 P C 64 (2) PLD 1967 SC 191 (3) I L R 1937 Cal. 605 (4) PLD 1983 Lab. 57$ {{FOOT NOTE}} ' the land acquired under this Act, the Court shall take into consideration :- ' First, the market-value of the land at the date of the publication of the notification under section 4, subsection (1)." ' An explanation was added by Ordinance XLIX of 1969 to section 23(i) in these words :- "For the purposes of determining the market-value, the Court shall take into account transfers of land similarly situated and in similar use. The potential value of the land to be acquired if put to a different use shall only be taken into consideration if it is proved that land similarly situated and previously in similar use has, before the date of the notification under subsection (1) of section 4, been transferred with a view to being put to the use relied upon . As affecting the potential value of the land to be acquired." ' The provisions of the Act of 1894 are designed- to provide fair compensation to the persons whose property is being acquired by the State. The word "value" as pointed out by Mr. Justice Muhammad Shall in Premier Sugar Mills Ltd. v. Qazi Hayatu/lah Khan (I), is certainly distinct from the word "price". A person may pay an abnormally high or fancy price for a certain thing but when that thing is to be acquired by the Government for the public purposes, it is not the price which is to be paid to him, but it is the value" and thus the fair compensation is the value of the property in open market which a seller who voluntarily enters into a transaction of sale can reasonably demand from a person but no buyer pays a price based on speculative quantities of the property though the seller takes into account its E exploitable capabilities, and these capabilities can be determined with reference to the use which the property can be put to either in immediate use or in the near future. We may quote with advantage the weighty observations of the Privy Council in Gajapaliraju v. Revenue Divisional Officer (2). At page 102 of this judgment, it is said "no one can suppose in the case of land which is certain, or even likely, to be used in the immediate or reasonable near future for building purposes but which at the valuation 'date is waste land or is being used for Agricultural purposes, that the owner, however, willing a vendor, will be contended, to sell the land after its use as waste or Agricultural land as the case may be. It is plain that in ascertaining its value, the possibility of its being used. For building purposes, would have to be taken into account. It is equally plain, however, that the land must not be valued as though it has already been built upon, a proposition that is embodied insection 24(5) of the Act of 1894 and it is
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sometimes expressed by saying that it is the possibility, of the land and not its realised possibilities that must be taken into consideration." It is thus clear that section 23 of the Act of 1894 lays down the principle to be taken into consideration and its intention is to provide indemnity to a person whose land is compulsorily acquired, and various sub-clauses of section 23 give effect to the principles enumerating the heads under which the compensation may be awarded and the relevant provision is section 23(i) which is applicable in the instant case whereas section 24 enumerates the {{FOOT NOTE}} (1) PLD 1956 Pesh. 67 (2) A I 14 1939 P C 9$ {{FOOT NOTE}} ' matters to be neglected in determining the compensation, clause "fifthly" would particularly be relevant which is reproduced :- "Fifthly-any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired." 7. Keeping in view these guidelines, we have to examine the evidence produced by the appellants in the Court. The appellants have adopted the usual methods of valuation and they may be classified under three heads :- (1) The opinion of the experts who have examined witnesses Muhammad Gul and Sher Muhammad ; (ii) The transaction of sales and relied upon, the mutations Exhs. A/A to A/E; (iii) The awards of the Collector in respect of the lands situated in (A) Mahal Khushcaba in Kasi and Yasinzai and (B) in respect of the land acquired in Mahal Chashma Habib, Tehsil Quetta. 8. We now proceed to examine the evidence. The witness Muhammad Gul is a Retired Telegraph Messenger and claims to have sold 60 to 70 pieces of property but has not produced any record of these transactions and admits that he has not kept any entry of the sale, nor remembers the names of the parties except a few. He had also no experience in agricultural land and has no land of his own. This witness has no place of business and has been on his feet as a broker. Similarly Sher Muhammad another broker examined by the appellants is a person having no office and place of business G and has no land of his own. He also claims to have arranged some transactions but has not furnished particulars of the property sold through him and it is not known where those properties were situated, nor nature of the land has been established. In view of these facts, it is difficult to accept them as experts. One would like to have some information as to their qualifications as valuers of landed property which these witnesses have not furnished about themselves. They have also not given any basis of their assessment. An expert is a person who has special knowledge and skill in the particular calling to which the enquiry relates. In considering the value of the evidence of an expert, it must be borne in mind that an expert witness, however, impartial he may wish to be, is likely to be unconsciously prejudiced in , favour of the side which calls him. It must also be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds view favourable to its interest AIR 1933 Lah. 561 and AIR 1921 Lah. 126 may he referred. The Privy Council in Judah v. Isolyne Bose (1), has, therefore, held that there cannot be more unsatisfactory evidence than that of an interested party called as an expert. It is for these reasons that it has been insisted by the Courts that opinion of an expert by itself may be relevant but that would carry little weight with a Court, unless it is supported by a clear statement of what he noticed and on what he built his opinion. Thus the expert's evidence is a week type of evidence and much j reliance cannot be placed on their evidence unless it is supported by documents. The evidence of the so-called experts is entirely valueless for the reasons stated by the learned District Judge, Quetta. We have also carefully been through the evidence and weighed it and found it wanting. None of them has produced any Account Book or
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Register showing that they have been selling similar type of land in the vicinity at or near the time the K Notification was issued and gave no real data in support of their opinion. It has been held in Secretary of State v. Sirla Dawi (2), "that where the experts {{FOOT NOTE}} (I) AIR 1945 P C 174 (2) AIR 1924 Lah. 548 {{FOOT NOTE}} ' give no real data in support of their opinion, the evidence may be admissible but may be excluded from consideration as affording no assistance in arriving at the correct value." The tendency of the courts is, therefore, to rely more on recent sale of the property than that of opinion of the experts. The L evidence of these witnesses therefore can be safely criticized as "Guesses" and had to be rightly caste aside and as unsatisfactory. 9. P. W. Abdullah Jan is a Zamindar of the area. The transactions of sale referred to by him relate to the year, 1967. The location and the nature of the land sold, nor its distance from the land acquired has been stated. This transaction of the year 1967 has also not been proved. The testimony of this witness has, therefore, been found, rightly by the learned District Judge to be of no avail for determining the value of the land acquired and we find no reason to differ from him. 10. The transactions of sale mentioned in mutation entries also do not help the appellants. The lands mentioned in Exhs. A/A to A/C are small pieces of land situated in different "Mahals". The transactions were admittedly held after the Notification under section 4 of the Act of 1894 in the instant case. The learned A. A.-G. Has pointed out with reference to a chart which he got prepared through the Revenue Authorities that the land under Mutation Entry No, 337, 338 and 336 are situated more than two miles away on the West from the land acquired, while the land under Mutation No, 387 (Exh. A/E) is situated towards East about 4 miles away from the land and land mentioned in Mutation No, 192 (Exh. A/D) is far away at more than ten miles away. All these lands are in different Mahals and in different directions. The learned District Judge while discussing these mutations entries has rightly observed that no witness has been examined to prove the sale of these lands, condition of the soil and other relevant factors connected with the transactions. As…
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