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Petitioner: Mst. Lalarukh Saqlain and 3 others VS Respondent: Punjab Health Department through JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Raza Qureshi, Shakil Ahmad Title:Mst. Lalarukh Saqlain and 3 others vs Punjab Health Department through
JUDGMENT
Reported As: 2023 YLR 222 Result: Order accordingly Judgment JUDGMENT SHAKIL AHMAD, J.---This is an appeal that has been filed by Mst. Lalarukh Saqlain and 3 others (hereinafter referred to as 'appellants') under section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act, 1894'), to impugn judgment dated 05.06.2013 passed by learned Senior Civil Judge, Multan (hereinafter referred to as learned Referee Court'). 2. Essential facts giving rise to the filing of instant appeal, in brief, are that Notification No.161/DO(R)/LAC dated 02.06.2005 was issued by District Officer (Revenue)/District Collector, Multan for acquiring land measuring 433-Kanal and 14-Marla in Mouza Dera Muhammadi and Samurana, Tehsil and District Multan for the construction/up-gradation of Civil Hospital, Multan. Total land falling within Mouza Dera Muhammadi was 252- Kanal and 09-Marla. Above hinted notification was published in Punjab Government Gazette on 24.08.2005, whereafter Notification No.441/EDO(R)/ LAC dated 26.12.2006 was issued and published in Punjab Government Gazette on Wednesday 21st February, 2007, whereby total acquired land was reduced to 401-Kanal and 14- Marla, however, the measurement of land falling in Mouza Dera Muhammadi remained intact. Appellants' land measuring 17-Kanal, 10-Marla and 15-Yards, falling in Khewat Nos.342 and 335 and Khatooni Nos.511 and 516 situated in Mouza Dera Muhammadi; was included in the acquired land falling within Mouza Dera Muhammadi. As per minutes of the meeting of District Price Assessment Committee held on 21.12.2005, average sale price of residential property falling, in Mouza Dera Muhammadi was fixed at the rate of Rs.7,672.67/- per Marla, whereas average sale price of agricultural property was fixed at the rate of Rs.2,195/- per Marla. However, Award dated 05.11.2007 was finally issued by DDO(R)/LAC (City) Multan, whereby value of residential land in Mauza Dera
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Muhammadi was fixed @ Rs.7500/- per marla, which according to appellants, was lesser than actual prevailing price in the area. Appellants being aggrieved, moved reference under section 18 of the Act, 1894 before Deputy District Officer (Revenue)/Land Acquisition Collector, Multan on 13.12.2007 against the Award dated 05.11.2007 by stating therein that the grievance of appellants' was not heard by the Revenue authorities regarding less price of their own land and they proceeded to receive award amount Under protest. Reference was sent to learned+ Referee Court. Having received the reference on 24.09.2008, process was issued for summoning of respondents. Respondents opted to file separate written replies by raising some preliminary legal objections besides taking the stance that acquisition process was completed in accordance with law and after observing all legal formalities. According to them, the price of land was assessed by competent forum keeping in view prevailing market rate. Learned Referee Court, in view of pleadings of the parties, proceeded to frame following issues:- ISSUES:- "1. Whether the reference petitioners have no cause of action and locus standi to bring this reference? OPR 2. Whether the reference petitioners have not come to the Court with clean hands? OPR 3. Whether the petitioners are estopped to file this reference on account of their words and conduct? OPR 4. Whether the reference is time barred? OPR 5. Whether the reference is not maintainable in its present form? OPR 5-A Whether the petitioners have received compensation/amount of Award without any protest. If so its effect? OPR-1 and 3 5-B Whether the reference is bad for non joinder of necessary party? OPR-1 and 3 6. Whether the reference petitioners have already received the consideration? If so upto what extent in terms of money? OPR? 7. Whether the reference petitioners have not been adequately compensated through impugned Award? OPA 8. If above issue is proved in affirmative, what should be the actual extent' of compensation to be paid to the reference petitioners? OPA 9. Relief. " Appellants produced total three witnesses namely Ghulam Muhammad (PW- I), Muhammad Aslam Javed (AW-1) and Mushtaq Ahmad (AW-2) and in their documentary evidence by placing on the record attested copy of Notification as Exh.A-3, attested copy of mutation No.12651 of Mauza Dera Muhammadi as Exh.A-4, attested copy of Aks Shajra as Exh.A-5, attested copy of letter regarding acquisition of land dated 12.09.2005 as Exh.A-6, attested copy of minutes of meeting dated 21.12.2005 as Exh.A-7, attested copy of Award dated 05.11.2007 as Exh.A-8, attested copy of notification dated 26.12.2006 as Exh.A-9, attested copy of letter dated 05.03.2007 as Exh.A-10, original valuation table as Exh.A-11, attested copy of registered sale deed No.6129 dated 12.02.2007 as Exh.A-12, attested copy of registered sale deed No.3334 dated 06.05.2005 as Exh.A-13, attested copy of sale deed No.5973 'dated 09.07.2007 as Exh A -14, original copy of form as Exh.A-15, report of LAC Multan as Exh.A-15/1, photocopy of valuation table dated 28.10.2010 as Mark-A, photocopy of register of record of rights for the year 2002-03 (tour in number) as Mark-B, Mark-B/1 to Mark-B/3, photocopy of notice dated 21.12.2007 (four in number) as Mark-C, Mark-C/1 to Mark-C/3, photocopy of Aks Shajra as Mark-D, photocopy of letter dated 05.07.2007 as Mark-E, copy of payment of compensation under protest dated 05.11.2007 (four in number) as Mark-F, registered power of attorney No.150 dated 05.06.1997 as Exh.P-1 and general power of attorney No.1275 dated 04.06.1997 as Exh.P-2, closed their evidence. Respondents produced two witnesses namely Khalil Ahmad and Muhammad Javaid Ashraf as RW-1 and RW-2, respectively and by tendering in documentary
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evidence copy of Notification No.161 as Exh.R-1, copy of Notification No.441 as Exh.R-2, copy of report of Field Revenue Staff as Exh.R-3, copy of 'Roznamcha Waqiyati" as Exh.R-4, copy of average sale price of Mauza Dera Muhammadi as Exh.R-5, copy of average sale price of disputed property as Exh.R-6, copy of average sale price of agricultural land as Exh.R-7, copy of detailed report of Mauza Dera Muhammadi as Exh.R-8, copy of minutes of meeting of DPAC as Exh.R-9, copy of letter No.726 dated 10.07.2007 as Exh.R-10, copy of order of MBR as Exh.R-11, copy of Award dated 05.11.2007 as Exh.R-12, copies of mutations Nos. 9232, 9257, 9271, 9272, 9318, 9440, 9969, 9492, 9525, 9565, 9592, 9639, 9687, 9774, 9713, 9854, 9882, 9897, 9880, 10017, 10018, 10028, 10035 as Exh.R-13 to Exh.R-36, attested copy of register regarding compensation received by the appellants as Exh.R-37, office order dated 08.11.2007 as Exh.R-38, voucher regarding payment of amount of Award No.47/4919 in favour of appellants as Exh.R-39, certified copy of register pertaining to Award amount received by Ghazala Saleem as Exh.R-40 and certified copy of register pertaining to Award amount received by Muhammad Ameen Shahid as Exh.R-41, closed their evidence. After hearing learned counsel for the parties, learned Referee Court proceeded to accept the reference and fix the compensation at the rate of Rs.12,000Y- per marla also holding the appellants entitled to 15% compulsory acquisition charges and compound interest at the rate of 8% per annum from the date of taking possession of disputed property from appellants. Being dis-satisfied, appellants filed instant appeal with the following prayer:- "...................the appeal may be accepted the judgement and decree of the referee court dated 05,06.2013 may be amended and compensation awarded to the appellants may be enhanced to compensate them for depriving from their valuable property and price may be granted at the rate of Rs.60,000/- per Marla. It is further prayed that all other casts, compensations and benefits may be enhanced and awarded to the appellants which are provided by law and also recommended and approved by the superior courts." 3. Learned counsel for appellants while opening his arguments, contended that Land Acquisition Collector and learned Referee Court failed to determine the price of land as per the evidence produced by appellants. It was argued that the principle of willing purchaser and willing seller was not applied by Land Acquisition Collector and learned Referee Court. Added that, while assessing the price authoritative pronouncements of Superior Courts were also ignored by Land Acquisition Collector as well as learned Referee Court. Learned counsel went on arguing that Land Acquisition Collector and learned Referee Court also failed to take note of the fact that land in question was situated on the bypass road of Mutton and same was also surrounded by industrial concerns, commercial centers and residential colonies. Learned counsel argued that as per evidence produced by appellants, market price of the land was not less than Rs.60,000/- per marla. It was further argued that while determining the market price of the land, Land Acquisition Collector and learned Referee Court failed to consider the increase of price of land during the acquisition period and also failed to assess the potential value of the acquired land in view of future utility of the acquired land. For his arguments, learned counsel placed reliance on cases reported as "Collector, Land Acquisition, Mardan and others v. Nawabzada M. Ayub Khan and others" (2000 SCMR 1322), "Province of Punjab through Collector, Artock v. Engr. Jamil Ahmad Malik and others" (2000 SCMR 870), "Government of Pakistan through Military Estate Officer, Abbottabad and another v. Ghulam Murtaza and others" (2016 SCMR 1141). "Air Weapon Complex through DG v. Muhammad Aslam and others" (2018 SCMR 779). 4. As against that, learned Law Officer supported the impugned judgment by arguing that value of the land was correctly assessed by Land Acquisition Collector and even learned Referee Court rightly enhanced the said amount. Added that as per evidence available on the record, price of land was not more than the amount awarded by Land Acquisition Collector and even by the
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learned Referee Court. It was further submitted that appellants after receiving the compensation as back in the year 2007, were not supposed, by their act and conduct, to file the reference as they practically accepted the price fixed by the Land Acquisition Collector. Learned law officer went on arguing that price of the land was assessed as per the parameters provided under the provisions of section 23 of the Act, 1894, as such there exists no ground for the acceptance of this Appeal. Learned Law Officer prayed for dismissal of this appeal with cost. 5. Arguments heard. Record perused. 6. Before going into the merits of the instant case, we find it apt to have a glance over relevant provisions of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the 'Constitution') and law dealing with the rights of a citizen to acquire, possess and dispose of property. Article 23 of the Constitution enjoins that citizens have been vested with a fundamental right to hold, acquire and dispose of property in any part of Pakistan, subject to the constitution and any reasonable restriction imposed by law in the public interest. Provisions of Article 24 Of the Constitution provide that no person shall be deprived of his property save in accordance with law. It has further been contemplated in the said provisions that no property shall be compulsorily acquired or taken possession of except for a public purpose and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on the basis of which compensation has to be determined and given. 7. Acquisition process employed to deprive someone of his property, therefore, is an exception that has been visualized by the Constitution. The process must be in consonance with conditions, parameters and the manner as laid down in Article 24(2) & (3) of the Constitution. Even if property of any person is taken over for a public purpose, the person being deprived of his property has to be given adequate, fair, just and due compensation. The provisions of Act, 1894 had constitutional backing as the same have been covered under the exception as contained in Article 24 (2) of the Constitution. It may further be observed that the provisions of Act, 1894 are self-contained for acquisition of land besides payment of compensation. Raison detre of the provisions of the Act, 1894 is twofold. Firstly, to fulfill the needs of the Governments and Companies for land required by them for their projects and secondly, to determine and pay compensation to those persons whose land is to be acquired. The main intention and object of the legislature is to provide an indemnity to the owner that no property can be acquired without proper and 'adequate compensation. An exhaustive and inbuilt modus operandi, for the redress of grievances of the persons from whom land is compulsorily acquired, has been provided in the Act, 1894. The provisions of section 23 of Act, 1894 contemplate in detail the matters that have to be considered while determining compensation. Guidance has been sought from the cases reported as "Federal Government Employees Housing Foundation (FGEHF), Islamabad and others v. Malik Ghulam Mustafa and others" (2021 SCMR 201) and "Land Acquisition Collector and others v. Mst. Iqbal &gum and others" (PLD 2010 SC 719). 8. Acquiring authority and even the courts while determining the compensation indeed have to firstly adhere to the provisions of section 23 of the Act, 1894 and secondly are also a bound to follow the dicta laid down by the apex court for determining the market value of the property so acquired. In case reported as "Pakistan Burmah Shell Ltd. v. Province of N.W.F.P and 3 others" (1993 SCMR 1700), it was observed by the apex Court that in assessing the market value of land, its location, potentiality and the price, evidenced by the transactions of similar land at the time of notification were the factors to be kept in view. It was further observed that one year's average of the sales taking place before the publication of the notification under section 4 of the similar land was merely one of the modes for ascertaining the market value and was not an absolute yardstick for the assessm ent.
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9. In another case reported as 'Haji Muhammad Yaqoob and another v. Collector, Land Acquisition/Additional Deputy Commissioner, Peshawar" (1997 SCMR 1670), it was observed by the apex Court that one year average sale pried of the land in the vicinity preceding the date of notification under section 4 of the Act, 1894 was only one of the relevant factors for consideration in determining the market value of the land but it alone could not be adopted as a basis for the assessm ent of market value, if there is other evidence available on the record to establish the potential value of acquired land at a higher rate. In another case reported as "Province of Punjab through Collector, Attack v. Engr. Jamil Ahmad Malik and others" (2000 SC M R 870), while approving the dicta laid down in Pakistan Burmah Shell Ltd. and Haji Muhammad Yaqoob's cases referred supra, apex Court inter alia observed as under: - "18.... The following matters are to be taken into consideration in determining the amount of compensation:- (i) The dam from which the market value of the land can be estimated is given in Rule 13 of the North-West Frontier Province Circular No. 54 issued presumably under section 55 of the Act. (ii) The best method to work out the market value is the practical method of a prudent man laid down in Article 2, Qanun-e-Shahadat 1984 to examine and analyze all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land. (iii) Subsection (1) of section 23 of the Land Acquisition Act provides that in determining the - amount of compensation the Court shall take into consideration the market value, loss by reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land, This, however, is not exhaustive of other Injuries or loss which may be suffered by an owner on account of compulsory acquisition. (iv) The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of it near about the date of notification under section 4(1) of the Land Acquisition Act. The next best Method is to take into consideration, the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighboring locality, the potential value of the land need not be separately awarded because such sales cover the potential value. (v) The law provides determi-nation of compensation not with reference to classification or nature of land but its market value at the relevant, time. No doubt, for determining the market value, classification p; the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani but its market value maybe tremendously high because of its location, neighborhood, potentiality or other benefits. (vi) While determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration. (vii) Consideration should be had to all the potential uses to which the land can be put as well as all the advantages, present or future which the land possesses in the hands of the owners. (viii) In determining the quantum of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction. (ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser this
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means that Court has to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist. (x) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the "past sales" should not be taken into account but the value of the lam! with all its potentialities may also be determined by examining (if necessary as Court-witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired; because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind that it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in question, because of the prevalent tendency that in order In save money on the purchases of stamp papers and to avoid the imposition of heavy gain lax levies on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The "previous sales" of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired., (xi) The sale-deed and mutation entries do serve as an said to the prevailing market value. (xii) In cases of compulsory acquisition effort' has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act. (xiii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted should be taken into consideration. (xiv) The phrase 'market value of the land as used in section 23(1) of the Act means 'value to the owner' and, therefore, such value must be the basis for determination of compensation. The standard must be not a subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration." 10. In case reported as "Government of Pakistan through Military Estate. Officer, Abbottabad and another v. Ghulam Murtaza and others" (2016 SCMR 1141), it was observed as under: "Numerous judgments and dictas given and laid down by this court with binding and laying guiding principles on the subject issue have unfortunately been conveniently ignored by the Collector as he remained stuck to the one year average without taking care of present and future potentiality of the land acquired. It has been repeatedly laid down that being a compulsory acquisition of land for public purposes, the owners of the land are deprived of its utility while at the same time the Collectors Acquisition simply impose their own opinion ordinarily based on one year average which is not a correct approach to the matter, as has been laid down by this court.' In another case reported as "Air Weapon Complex through DG v. Muhammad Aslam and others" (2018 SCMR 779), it was observed as under:- 7. It is settled law that in assessing compensation of acquired land, the following factors are to be taken into consideration:
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(a) its market value at the prevalent time and its potential; (b) one year average of sale taken place before publication of notification under section 4 of the Act of the similar land; (c) its 'likelihood of development and improvement; (d) a willing purchaser would pay to a willing buyer in an open market arms length transaction entered into without any compulsion; (e) loss or injury occurred by severing of acquired land from other property of the land owner; (f) loss or injury by change of residence or place of business and loss of profit; (g) delay in the consummation of acquisition proceedings and; (h) peculiar facts and circum-stances of each case." 11. In case reported as "Sarhad Development Authority N. W. F. P (Now KPK) through COO/CEO (Officio) and others v. Nawab Ali Khan and others" (2020 SCMR 265), it was observed by the apex Court that precedents reflect a constant trend to also consider the purposes of determining the market value of the property to be acquired, its potential value or essentially the future use to which the said property can be put to. It was further observed as under:- "13 And in doing so, there is judicial consensus in considering sale transactions of similar nature of immovable property in the adjoining khasras or even mauzas taking place even after the date of publication of the Notification under section 4(1) of the Act for adjudging the "market value", and in doing so to finally fix the amount of compensation to be awarded to the landowners for the property acquired." While answering the first proposition as formulated in Paragraph No.7 of Sarhad Development Authority's case referred supra, it was observed by the apex Court as under:- "17. Thus, in view of the above, it would be safe to state that not only -in Khyber Pakhtunkhwa, but even in other three provinces, where section 23(1) of the Act has not been amended, it is noted that: firstly, the value of similar land in the adjoining khasras and mauzas to the acquired land was taken into consideration for-determining the amount of compensation to be awarded to owners of the acquired property; and secondly, the escalation of…
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