Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD SHARIF VS Respondent: AFSAR TEXTILE MILLS LTD. And Another
Court Name: Supreme Court of Pakistan Judge(s): Aslam Riaz Hussain, Muhammad Haleem, Shafi-ur-Rehman Title: MUHAMMAD SHARIF vs AFSAR TEXTILE MILLS LTD. And Another Case No.: Civil Appeal No. 164 of 1972 Civil Revision No. 108 of 1968 Date of Judgment:1984-11-05 Reported As: 1985 SCMR 1181 Result: Appeal dismissed
JUDGMENT
JUDGMENT MUHAMMAD HALEEM, C.J.--Leave to appeal was granted to consider the question of law as to whether the Court hearing a reference under section 18 of the Land Acquisition Act can allow an objector to claim increased compensation for the acquired land by making an amendment in the original application filed by him before the Collector requiring a reference under the said section. Certain lands belonging to the appellant were acquired for respondent No. 1 by the Collector by his award dated 1-12-1974 after the issuance of relevant notifications under the provisions of the Land Acquisition Act (hereinafter called the "Act"). The compensation awarded was as follows:-- Nehri Rs. 4,000 per Acre. Chahi Rs. 5,000 per Acre. Barani Rs. 1,000 per Acre. Banjar Jadeed Rs. 750 per Acre. Banjar Qadeem---------Rs.500 per Acre. This was after considering the claim of the appellant in response to the notice issued under section 9 of the Act. Not being satisfied with the amount of compensation awarded, the appellant filed an application before the Collector for referring the matter to the Court for decision. In that application he claimed compensation at a flat rate of Rs. 6,400 per Acre without any reference to the classification of soil. The Collector, accordingly, referred the matter to the civil Court for its decision. During the pendency of the said application, which was registered as a suit, the appellant moved an application under Order VI, rule 17 and section 151 of the Civil Procedure Code seeking to enhance
---
## Page 2
the amount claimed in the application. Instead of the flat rate of Rs. 6,400 per Acre as was claimed earlier the amount now claimed was Rs. 100 per Marla for the rural land and Rs. 500 per Marla for urban land. The Senior Civil Judge; Sheikhupura, by order dated 14th of December, 1967, disallowed the prayer for amending the claim for rural land, but the claim for the urban land was allowed to be enhanced as under:- "That the compensation for the urban area is worth Rs. 100 to Rs. 500 per Marla, according to the transactions made in the vicinity, as recorded in the mutations register of the circle." This was the same rate of compensation as claimed in response to the notice issued under section 9 of the Act. The first respondent went in revision to the High Court against this order and succeeded as it was allowed by judgment dated 7th of April, 1972. The High Court while holding that there was a conflict of judicial authority on this point referred to amongst others the cases reported as R.I Pramatha Nath Mullick Bahadur v. Secretary of State AIR 1930 P C 64, Umar Bakhsh and another v. The Secretary of State 46 IC 906, Secretary of State v. C.R. Subramania Ayyar AIR 1930 Mad, 576, Revenue Divisional Officer v. Sri Rajah Vyricherla Narayana Gajapathiraju Bahadur Garu A 1 R 1937 Mad. 902, Province of Bengal v. Ram Chandra Bhotika and others AIR 1944 Cal. 247 and Collector Peshawar v. Sher Ahmad Khand and others PLD 1966 Pesh. 193, and distinguished the contrary view taken in the Province of Bengal v, P.L. Nun AIR 1945 Cal. 312. The provisions of the Code of Civil Procedure apply to the proceedings before the civil Court on a reference by Collector by reason of section 53 of the Act except when there is inconsistency between any provision of the Code and the Act. Obviously, therefore, Order VI, rule 17 will be applicable to the proceedings but sections 18, 20, 21 and 25 of the Act indicate to what extent it can be pressed into service for allowing an amendment. These provisions read as under: -- "18. Reference to Court. -- (1) Any person interested who has not accepted the award may, by written application to the collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2)The application shall state the grounds on which objection to the award is taken Provided that every such application shall be made -- . (a)if the person making it was present or represented before the Collector at the the when he made his award, within six weeks from the date of the Collector's award; (b)in other cases, within six weeks of the receipt of the notice from the Collector under section 12, subsection (2) or within six months from the date of the Collector's award, whichever period shall first expire." "20 Service of notice.-- The Court shall thereupon cause a notice specifying theay on which the Court will proceed to determine the objection, and directing their appearance. Before the Court on that day, to be served on the following persons namely;--- (a)the applicant; (b)all persons interested in the objection, except such -(if any) of them as have consented without protest to receive payment of the compensation awarded; and (c)if the objection is in regard to the area of the land or to the amount of the compensation, the Collector." "21. Restriction on scope of proceedings:-- The scope of the inquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by the objection." "25. Rules as to amount of compensation,-- (1) When the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the
---
## Page 3
Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section 11. (2)When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector. (3)When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector." Subsection (1) of section 18 enumerates the matters which can form the subject-matter of reference by the Collector for the determination of the Court and one such matter is the "amount of compensation". Subsection (1) of section 25 lays down the "minimum" and the "maximum" within which the Court must limit its award, that is, when the objector has put in his claim for compensation under section 9 of the Act, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section 11 of the Act. Subsections (2) and (3) of section 25 will sot be applicable to the case of the appellant as the situation envisaged in either of the to subsections is not present in the instant case. Section 20 requires service of notice on the applicant, all persons interested in the objection and the Collector if the objection is in regard to the area of the land or to the amount of compensation. Section 21 of the Act again restricts the scope of the inquiry to the consideration of the interests of the persons affected by the objection. Again the word "objection" in this section has the same connotation as in section 18 of the Act. The trial Court while allowing the Civil Revision held as under:-- "Even if it is assumed that Order VI, rule 17, C.P.C. Was attracted to the facts of the present case, the learned Court has acted with material irregularity and illegality in the exercise of its jurisdiction by allowing the amendment. The respondents should be taken to have waived their claim at the rate ranging from Rs. 16,000 to' Rs. 18,000 and to have reduced it to a sum of Rs. 6,400 for acre. Apparently this cannot be termed as a mere clerical error. The amendment claimed introduced. a totally inconsistent plea which should not have been allowed even on the general principles of Order VI, rule 17, C.P.C. It could not also be said that this amendment was necessary for deciding the real dispute in controversy between the parties." A reading of the above sections shows to whet extent the power to allow an amendment under Order VI, rule 17, C.P.C. Is curtailed. An illustration in hand can be where a reference under section 18 of the Act relates to a dispute regarding apportionment between A and B. The Court cannot allow C and D to be added on their own application to contest the award on a ground not raised in the reference. The point altogether is not free from difficulty as there is divergence of opinion between different High Courts and not only this there is also difference of opinion in the same High Courts. The starting point is the decision of the Judicial Committee in the case of Pramatha Nath Mullick Bahadur v. Secretary of State AIR 1930 Privy Council 64. In that case although the award of the Collector was based on measurements but no question as to their correctness was raised in the application filed for referring the dispute under section 18 to the Court for determination. The objection taken was to the valuation of the land only. In the Court a plea was taken that either the Government should admit a larger area or in the alternative there should be a fresh measurement. The trial Court disallowed the prayer and so did the High Court but again on appeal from the order of the trial Court this ground was taken which was repelled. It was this refusal which was the subject-matter of decision by the Judicial. Committee. The Judicial Committee referred to sections 18, 20 and 21 and held as under:- "Their Lordships have no doubt that the jurisdiction of the Courts under this Act is a special one and is strictly limited by the terms of these sections. It only arises when a specific objection has been
---
## Page 4
taken to the Collector's award, and it is confined to a consideration of that objection. Once therefore, it is ascertained that the only objection taken is to the amount of compensation, that alone is the "matter" referred, and the Court has no power to determine or consider anything beyond it." What appears to be the ratio decidendi of this case seems to me to be that, the jurisdiction of the Court in dealing with the reference under section 18 is restricted by the terms of section 18 as enjoined by sections 20 and 21 of the Act. As said earlier there is difference of opinion on this question, and so also the above dictum of the Judicial Committee has been construed differently by the High Courts. In Secretary of State v. C.R. Subramania Ayyar AIR 1930 Mad. 576, the objector lodged his claim by the addition of to new items, e.g., the cost of constructing new walls and the cost of erecting latrines before the Court. This was objected to on behalf of the Government, and it was argued that the Court had no power to entertain such newly-preferred claim. The trial Court allowed the claim in respect of the latrines, but disallowed it in respect of the walls. A revision was taken to the High Court against the allowing of the claim in respect of the latrines. In this context, Curgenven, J., while holding that the trial Court had no power to allow a supplementary claim to compensation, observed:-- "In all ordinary circumstances, therefore, a claimant can and should present his case fully before the Collector, and should be held bound throughout the proceedings by what may be termed his pleading's. Turning then to section 18, it enables a person interested to require the Collector to refer the matter for the determination of the Court:- "Whether the objection be to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation amount to the persons interested." Under subsection (2) he has to state the grounds on which objection to the award is taken. The proceedings before the Court are thus of the nature of objections to the Collector's award, and not a judicial inquiry independently undertaken into such questions as the claimant may raise. On this view, it would not be open to a claimant to make out a fresh case, whether by way of supplementary claims to compensation, or otherwise. The point is practically bare of authority, the only opposite case 'cited to me being a decision to this effect by a Judge of the Punjab Chief Court in Umar Baksh v. Secretary of State." Two points emerge from the decision, which limit the jurisdiction exercised by the Court. The first is that the objector should fully present his case before the Collector and that he should be confined to his claim throughout the proceedings as if it was his pleadings; and the second is that the proceedings before the Court are not a judicial inquiry independently undertaken as apart from the specific objection referred to. Accordingly, this judgment follows the ordinary rules of pleading that the litigant should be bound by his own pleadings. There is no reference to Pramatha Nath Mullick Bahadur's case, but the decision turns on the interpretation of section 13 of the Act, and in that context there is emphasis on the rigidity of pleadings. In Umar Bakhsh and another v. Secretary of State 46 I C 906, although there is no discussion in the judgment but it is clearly laid down that the claim for damages for severance if not claimed before the Collector in pursuance of the notice under section 9 of the Act, cannot be entertained by the civil Court. Obviously this has a reference to the jurisdiction exercised by the civil Court in regard to the specific objection referred to for decision, and anything beyond it could not be taken notice of. In Revenue Divisional Officer v. Sri Rajah Vyricheria Narayana Gajapathiraju Bahadur AIR 1937 Mad. 902, out of six questions framed for consideration only to need to be mentioned, which are; firstly, whether the compensation for the value of the 'special adaptability' of the land acquired for supplying drinking water otherwise than to the unacquired lands of the objector was, in fact, claimed either under section 9 of the Act or in his objection to the award; and, secondly, if no such
---
## Page 5
claim was made before the Collector then could this be awarded by the civil Court. In answering these questions, it was said that the claim fell under the second head in section 18(1) namely, compensation and that by reason of section 53 which makes the Code of Civil Procedure applicable to all proceedings before the Court the allegations of Pleaders if they are not inconsistent can be taken into consideration in framing the issue as provided under Order XIV, rule 3. From this as was held it would follow that the Courts have jurisdiction to frame an issue which does not directly arise from the objection taken provided that it was not totally inconsistent with it. Additionally, the Court also held that it was also permissible if Order VI, rule 17 of the Code of Civil Procedure applies to the proceedings to grant leave at the the of framing the issues to amend the statement of objections by including in it a claim for the value of the natural suitability for water supply of the land acquired subject, of course, to such terms as might be proper. In holding so, the learned Judges of the Court observed that the import of the decision of the Judicial Committee in Pramatha Nath Mullick Bahadur's case was nothing more than to emphasize that the objection considered must fall under the same category in section 18(1) of the Act as the objection pleaded. Having said so, the decision of Curgenven, J., in Secretary of State v. C.R. Subramania Ayyar, was commented upon as having gone to far if it was taken to mean that the Court has no jurisdiction in a proper case to allow the claimant to vary the basis of his objection or to frame an issue relating to the same head of petition, but not arising precisely out of the pleadings. Accordingly, it was held that it was sufficient if the claim had fallen in the same category, i.e., compensation in section 18(1) of the Act. An appeal was taken against the decision of the High Court to the Pivy Council which is reported as Vyricherla Narayana Gajapathiraju v. Revenue Divisional Officer, Vizagapatam AIR 1939 P C 98. As the appeal of the Revenue Division Officer, Vizagapatam, had succeeded in the High Court, the appellant challenged the legality of the valuation on the ground that the High Court was in error in not awarding the compensation on a proper consideration of sections 23 and 24(5) of the Act. For a better understanding of the judgment of the Privy Council it would be necessary here to refer to the finding of the High Court: -- "Let us apply the law as laid down in these rulings to the facts of the present case. It has been shown that there was at the the of the notification no other purchaser besides a harbour who was reasonably possible as a purchaser for the drinking water supply on the respondent's land. That being so, this special adaptability has no value apart from the value created by the scheme for the purpose for which it is acquired. Even if we are to take into account the speculative rise of price which might have taken place by reason of the owner conceiving the possibility of the development of some such scheme as has been put forward, it is on the evidence apparent that no one foresaw this scheme until the actual investigation began and there is no evidence whatever of any speculative rise of price until after the scheme had resulted in the notification. Though the special adaptability existed, it had no prospect of becoming an element of value apart from the scheme; its value, therefore, was the result of the scheme and to award compensation for it is to do that which cannot be done with reference to S. 24(5) of the Act, i.e. To take into account the increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired. It follows that the learned Subordinate Judge erred in awarding compensation for the special adaptability of this land to supply drinking water to persons outside the respondents' estate." And the decision of the Privy Council turns on the consideration of the legal question as to the amount of compensation receivable upon an interpretation of these provisions of the Act. It was the respondent before the Privy Council who had taken the objection in the High Court as to the impropriety of the claim for compensation for value of the special suitability of the land acquired for supplying drinking water as it was not taken in the application before the Collector, and no question arose before their Lordships of the Privy Council as to the correctness of the High Court in
---
## Page 6
distinguishing the case of the Secretary of State v. C.R. Subramania Ayyar, as leave was only granted to consider the error of the High Court in not following the correct principle for determining the compensation. Accordingly, this question was res integra and open for review. I may here observe that in Secretary of State V . C . R . Subramania Ayyar, the facts were altogether different as a claim for the costs of constructing walls and latrines was freshly made before the Court and entertained. It was in that context that emphasis was laid on the fact that the objector should fully make out his case before the Collector and having once taken a position he should be made to be bound by it as his objection to the award in regard to the quantum of compensation receivable by him. The line of distinction drawn from the observations in Pramatha Nath Mullick Bahadur's case does not seem to follow as it then would not be a specific question referred for decision nor can it be regarded as a basis of valuation as it was a supplementary claim made for the first the in Court and not taken as an objection to the award before the Collector. Again if according to the Privy Council case the jurisdiction only arises to answer the specific question then this could not be a matter of procedure only which could readily be included either by way of an amendment to the claim or otherwise for decision. In Province of Bengal v. Ram Chandara AIR 1944 Cal. 247, the objector before the Collector claimed Rs.1,500 as compensation for the trees whereupon this question was referred to the Court for decision under section 18 of the Act. Thereafter he was allowed to enhance his claim from Rs.1,500 to Rs.10,000, and he was accordingly awarded Rs.3,650 as being the fair market value of the trees. An appeal was taken to the Calcutta High Court and it was contended on behalf of the Province of Bengal that the Court had no jurisdiction to allow the objector to amend his application after the matter had come before the Court. A Division Bench of the Calcutta High Court, relying on the case of Pramatha Nath Mullick Bahadur, held:- "That the only matter which was referred for the determination of the Court was whether the trees should be valued at Rs.400 or at Rs.1,500, and on the principles laid down by the Judicial Committee of the Privy Council in 57 Cal. 1148, the Court had no power to consider anything beyond what had actually been referred to it. In these circumstances, I do not think that it was open to the Court to allow the claimant to amend the application after the matter had come before the tribunal, because the amendment had the effect of placing before the Court for consideration a matter which had not actually been referred to it within the meaning of section 18(1), Land Acquisition Act." Further in holding so, the language of section 18(1) was considered and it was held that the words "require that the matter be referred by the Collector for the determination of the Court" merely mean that the point on which the Collector's award is disputed may be referred to the Court at the instance of a claimant, and when such a dispute has been referred to the Court the scope of the inquiry is limited within the bounds of the dispute which had actually arisen before the Collector. This is how section 18(1) has been construed as following the dictum laid down in Pramatha Nath Mullick's case. Here I may also highlight that the opinion of the Division Bench in the case of Revenue Divisional Officer (supra) was canvassed against this proposition but it was distinguished on the ground that the decision in that case rested on the plane that in a proper case the Court had jurisdiction to consider the effect of evaluation made on a different basis from that which had been adopted before the Collector which is not the case here. The decision in this case is in line with the view taken by Curgenven, J., in Secretary of State v. C.R. Subramania Ayyar. However, a contrary view was taken by the Calcutta High Court in Province of Bengal v . P.L. Nun AIR 1945 Cal. 312. In this case what happened was that the objector claimed Rs.80,000 as compensation for the land and building under section 9 of the Land Acquisition Act. The Collector awarded a sum of Rs.47,765 as compensation. In his objection to the award, the objector contended that the compensation awarded was far below the market value of the property which should have been at
---
## Page 7
least Rs.56,000. It was also urged in the objection that the Collector had not taken into consideration special advantages and the disposition of the land while awarding the sum of Rs.47,765. After reference to the Court, the objector made an application for the amendment of the petition of reference and sought enhancement of the amount to Rs.74,666 in place of Rs.56,000, which was said to have been mentioned by mistake. This application was resisted, but the Court allowed the objector to amend the petition of reference as prayed. The precise objection taken against the amendment was that the sum of Rs.56,000 in the petition of reference was an integral part of the matter under reference and hence a change in that figure would make the matter of the reference quite different from the matter originally referred to the Court and hence the Court had no jurisdiction to allow the amendment. While rejecting this submission, the Division Bench observed:- "The contention of the learned Advocate for the appellant is supported by the judgment of a Division Bench in I L R (1943) 1 Cal. 69, which on the facts is on all fours with the case before us. There the claimant in his 'statement of claim before the Collector made under section 9 of the Act claimed Rs.2,800 as compensation for the trees standing on the acquired land. The Collector awarded Rs.400 only. In the petition of reference under section 18, the claimant valued the claim at Rs.1,500. The claimant thereafter applied to Court to amend his petition of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.