Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ALI AKBAR VS Respondent: THE LAND ACQUISITION COLLECTOR, RAWALPINDI And ANOTHER
Court Name: Lahore High Court Judge(s): Muhammad Nawaz Abbasi, Sajjad Ahmad Sipra Title: ALI AKBAR vs THE LAND ACQUISITION COLLECTOR, RAWALPINDI And ANOTHER Case No.: Regular First Appeal No. 67 of 1967 Date of Judgment:1997-11-11 Reported As: 1999 CLC 29 Result: Order accordingly
JUDGMENT
JUDGMENT MUHAMMAD NAWAZ ABBASI, J.--- This judgment proposes to dispose of the following six connected regular first appeals involving the common subject:-- (1) Ali Akbar v. The Land Acquisition Collector and another Regular First Appeal No.67 of 1967. (2) Sultan Muhammad and others v. Province of West Pakistan and others Regular First Appeal No.72 of 1967. (3) Mian Abdul Ghani v. The Province of West Pakistan and another Regular First Appeal No.80 of 1967. (4) Sh. Altaf Hussain and another v. The Province of West Pakistan and another Regular First Appeal No.81 of 1967. (5) Sh. Altaf Hussain and 4 others v. The Province of West Pakistan and another Regular First Appeal No.86 of 1967. (6) Syed Mubarik Ali Shah v. The Province of West Pakistan and another Regular First Appeal No.89 of 1967. 2. The land measuring 637 Kanals, 17 Marlas owned by Muslim owners in the Revenue Estates, namely, Rawalpindi Mahal, Dhoke Noor, Dhoke Najjo and Dhoke Hayat, situated adjacent to Saidpur Road and Asghar Mall Road, Rawalpindi was acquired by the Land Acquisition Collector, Rawalpindi for the purpose of a residential Scheme designated as "Development Scheme" for the area between Saidpur Road and Asghar Mall Road under the provisions of Town Improvement Act, 1922. A resolution under section 36 of the Town Improvement Act, 1922 was made on 19-11-1958 and in consequence thereof completing the necessary formalities, an award for the payment of compensation was announced on 10-2-1964. The Land Acquisition Collector for the purpose of
---
## Page 2
determination of value of land and working out the compensation to be paid to the landowners divided the land into three blocks. The Collector after grouping the land of Revenue Estate of Rawalpindi in Block "A" the land falling in the area of Dhoke Hayat and Dhoke Noor in Block "B" and land of Dhoke Najjo with some area of Dhoke Noor in Block "C", assessed the compensation at the flat rate of Rs.5,460 for the land of Block "A" and Rs.2,019 and 1,200 for the land of Blocks "B" and "C", respectively. The assessm ent of the compensation payable to the landowners made by the Land Acquisition Collector through the Award, dated 10-2-1964 was on the basis of market value prevailing at the time of publication of notification under section 36 of the Punjab Town Improvement Act, 1922. The market value of the land as referred above was determined on the basis of quinquennial average of the land through its division in separate groups with the nomenclature of Blocks. 3. The landowners including the appellants being not satisfied with the compensation did not accept the award and upon reference under section 18 of the Land Acquisition Act, 1894 to the Senior Civil Judge, Rawalpindi exercising the powers of the District Court for the purpose of reference under Land Acquisition Act, 1894, contested the same with respect to the market value of the land and payment of compensation with compulsory charges. 4. The Referee Court framed the following issues to resolve the controversy raised by-the parties in the references:----------- (1) Whether the petitioner is barred to claim the enhanced compensation? (2) What was the market value of the land acquired at the time of the publication of notification under section 36 of Town Improvement Act? (3) Whether the application is within time? (4) Relief. The following additional issues were framed by the learned Senior Civil Judge:-- 3-A. Whether the description of the land acquired has been correctly given in the application? 3-B. Whether the petitioners have the locus standi to file the present application? 5. Learned Senior Civil Judge after a detailed discussion of the evidence produced on behalf of the parties and the legal issues raised therein regarding the payment of 15 % as compulsory acquisition charges with the determination of the compensation on the basis of potential value of the land, answered the issues against the appellants and affirmed the award vide judgment, dated 22-11-1966 with following observation under para. 12 thereof: "The mutations mentioned at Serial Nos.40 to 48 of the list ' A' pertain to lands which are included in the land now acquired for the Improvement Trust. It would, thus, be proper to take these previous sale transactions of the land forming the subject-matter of the present award for the purpose of determining the market value in the year 1958. From amongst these mutations, those at Serial Nos.41 and 44 pertain to the sale transactions which took place in the year 1954 and it is not considered fair to take these sale transactions into consideration as these happened at a much earlier period. The argument of the learned counsel for the petitioners then is that only the sale transaction respecting 4 Marlas in consideration of Rs.5,000 as evidenced by mutation (copy at Exh.P.W.7/1) should be taken as the basis for determining the market value of the land under acquisition because this sale took place near about the date of publication of notification under section 36, Town Improvement Act. This argument is, however, not tenable because it would be unsafe to determine the market value on merely one single transaction. This land measuring 4 Marlas was purchased l-y Muhammad Alam (P.W.7). He has stated that the land is situated in Dhok Hayat where exists the custom of pre-emption. This being the position the possibility of an inflated sale price being shown in the sale-deed cannot be ruled out because it is not an uncommon feature that with a view to defeating the right of the prospective pre-emptors, the prices of the lands purchased, which are subject to pre-emption, are shown in the mutations or the sale-deeds
---
## Page 3
rather on a higher side than the actual sale money handed over to the vendors. There is another factor which inclines me to hesitate in taking this single sale transaction (Exh.P.W.7/1) to be the basis for determining the market value. These four Marlas sold for Rs.5,000 in the year 1958 are situate in Khasra No.7035/6352 which admittedly is a Tatima Khasra number of the main Khasra No. 1308. Now in this very Khasra number viz. 1308 land measuring 5 Marlas was sold for Rs.800 in the year 1954 as evidenced by mutation (copy at Exh.R.W.2/14). A comparison of these two sale transactions taking place in the year 1954 and in the year 1958 would show that whereas a part of land in Khasra No. 1308 was sold in the year 1954 at the rate of Rs.3,200 per Kanal, the other part of the same Khasra number was sold only four years afterwards at the rate of Rs.25,000 per Kanal. This rise in the price to the extent of eight times within the span of four years only is abnormal and no circumstances have been brought - out on the record of this case to show particular features which had the effect of stepping up the price of the land to eight times within the span of only four years. Khasra No. 1323 happens to be similarly situated as Khasra No. 1308 vide Aks Shajra (Exh.R.2). A piece of land included in this Khasra No. 1323 measuring 17 Marlas was sold in March, 1956 for Rs.8,000 and another piece of land measuring 11 Marlas was sold in the same Khasra number in January, 1957 for Rs.3,000 vide mutations' (copies at Exhs.P.W.13/3 and R.W.2/2). This would show that the eight-time rise in the price of land in Khasra No.1308 as evidenced by mutation (copy of Exh.R.W.7/1) was an artificial one and was not a true index of the market value. Taking all these facts into consideration I consider it fair that the average price worked out on the basis of the sale transactions involved in mutation mentioned at Serial Nos.40, 42, 43 and 48 of Statement at ' A' would be a safe guide for determining the market value stated that the sale transaction of 17 Marlas of land vide mutations (copies Exh.P.W.13/3 and P.W.13/4) are evidenced by the registered sale--deeds (Exh.P.W.8/1 and P.W.8/2). Ali Akbar (P.W.8) is the vendor of these two pieces.-of lands. He has stated that he received the entire consideration money at the time of the registration of the sale-deeds. Now the sale money passed at the time of registration is Rs.6,200 in each case. In the circumstances, I would find the sale of 17 Marlas of land for Rs.6,200 instead of 8,000. On this basis the average price per Kanal works out to Rs.6,620 per Kanal as compared with the price fixed by the Land Acquisition Collector at the rate of Rs.5,461 per Karl: I, however, do not find any justification to interfere in the price fixed by the Land Acquisition Collector because the average worked out by me is based on the sales of small pieces of lands and the sale price thereof cannot be too strictly applied to the sale price of land measuring hundred of Kanals as is the case in regard to the land under acquisition. The result of the above discussion is that the price fixed by the Land Acquisition Collector viz. Rs.5,461 per Kanal for Block ' A' is confirmed by me." 6. The appellants being aggrieved of the judgment of the learned Senior Civil Judge, Rawalpindi whereby he confirmed the price of the land determined by the Collector filed the above-referred regular first appeals claiming the compensation of the land in the following manner:------- Ali Akbar appellant in Regular First Appeal No.67 of 1967 (since died and represented by his legal representatives) without accepting the award claimed compensation at the rate of Rs.12,000 per Kanal of his land measuring 40 Kanals under acquisition falling in the area categorised as Block "A", the price of which was determined at the rate of Rs.5,460 per Kanal by the Collector in the award. Asghar Ali and other appellants in Regular First Appeal No.72 of 1967 originally claimed compensation at the rate of Rs.20,000 per Kanal with the assertion that the land owned by them being situated between the area of Saidpur Road and the Government College at a short distance from Asghar Mall Road and falling with the . Municipal limits, was more valuable. However, the appellants in this appeal being unable to pay court-fee, reduced their claim to the tune of Rs.9,561 only. It is stated that a separate award for another land forming part of the land under acquisition pertaining to Asghar Mall Scheme determining the price of land at the rate of Rs.10,000 per Kanal was announced on 12-2-1963. It was claimed that the land of the appellants being of superior
---
## Page 4
quality to that of the land of the award, referred above, the compensation at a less rate to that of the award in question was not justified. Mian Abdul Ghani appellant in Regular First Appeal No.80 of 1967 owner of the land detailed therein initially claimed compensation at the rate of Rs.20,000 per Kanal for his land under acquisition before the Referee Court but in appeal the claim at the rate of Rs.10,000 per Kanal with interest at the rate of 6 % was reduced. Sh. Altaf Hussain and other appellants in Regular First Appeal No.81 of 1967 being owners of the land under acquisition in Dhoke Najjo similarly demanded compensation at the rate of Rs.20,000 before the. Referee Court but in, appeal, they confined the claim to the minimum rate of Rs.10,000 per Kanal. The appellant, in Regular First Appeal No.86 of 1967 also in the beginning made a claim of Rs.20,000 per Kanal as compensation for their land but later at appellate stage reduced the same to Rs.10,000 per Kanal. Syed Mubarik Ali Shah appellant in Regular First Appeal No.89 of 1967 claimed compensation at the different rate for the different land. He having categorised his land as commercial and residential, claimed compensation at the rate of Rs.40,000 for commercial land and Rs.20,000 per Kanal for residential land. He was awarded compensation for all land at the rate of Rs.5,461 per Kanal. The appellant, however, consolidating his claim reduced the same in appeal to the tune of Rs.17,206 per Kanal to avoid payment of court-fee. Additionally the appellants in the above-referred appeals also claimed 15 % compulsory charges on the compensation for the acquired land as provided under section 23 of the Land Acquisition Act, 1894 alongwith the interest on the amount of compensation as provided under sections 28 and 34 of the said Act. 7. Learned Senior Civil Judge/Referee Court while disposing of the references confirmed the award with the observation that the market value of the land was not determinable differently to that of the value fixed by the Land Acquisition Collector. The learned Judge further observed that the consideration for determination of value of land for payment of compensation under the provisions of the Town Improvement Act, 1922 being not the same as given under section 23 of the Land Acquisition Act, 1894, the actual market value on the basis of its use at the time of publication of notification under section 36 of the Town Improvement Act, 1922 was to be ascertained and not the potential value in terms of section 23 of the Land Acquisition Act, 1894. The appellants were also not found entitled to the payment of compulsory acquisition charges at the rata of 15 per centum permissible under section 23 of the Land Acquisition Act, 1894 being inapplicable to the land acquired under Town Improvement Act, 1922. In a nutshell, the market value of the land determined by the Collector on the basis of the actual use of the land on the date of publication of notification under section 36 of the Town Improvement Act, 1922 as modification made through the Schedule (clause 10 thereto) to the Land Acquisition Act, 1894 was maintained. Judging the matter with reference to the conflicting view taken regarding the legal status of Town Improvement (Amendment) Act, II of 1953, in context with Government of India Act, 1935 and the explanation added thereto through Land Acquisition (Punjab Amendment) Act, XII of 1954, in M. Salim Ullah and others v. Province of West Pakistan and another PLD 1960 (W.P.) Lah. 450, and the Land Acquisition Collector, Rawalpindi v. Lieut---General Wajid Ali Khan Burki PLD 1960 (W.P.) Lah. 469, the Referee Court formed opinion that the market value of the land for the purpose of Town Improvement Act, 1922 would be according to the actual use to which the land is put at date, with reference to which the market value is to be determined. Placing reliance on Province of West Pakistan and another v. M. Salim Ullah and others PLD 1966 SC 547, the Referee Court further observed that Exception to subsection (1) of section 23 of the Land Acquisition (Punjab Amendment) Act, XII of 1954 having held to be violative of subsection (2) of section 299 of the Government of India Act, 1935, the compulsory acquisition charges under section 21(2) of Land Acquisition Act, 1894 were not
---
## Page 5
admissible to the appellants. Proceeding further, the lower Court after detailed discussion of the documentary evidence consisting upon various mutations/sales of the different lands before and after the acquisition of the land hereinbefore referred in para. 12 of the judgment making departure to the findings given therein regarding the average price to be calculated Rs.7,300 per Kanal, mentioned as Rs.6,620 per Kanal through clerical mistake, confirmed the price of award fixed by the Land Acquisition Collector. 8. The payment of the compensation with 15 per centum compulsory acquisition charges on the market value of the land being claimed alongwith the interest under section 28 of the Land Acquisition Act, 1894 is common demand of all the appellants except Syed Mubarik Ali Shah appellant in Regular First Appeal No.89 of 1967, who having not paid compensation under the award given by the Land Acquisition Collector till now has claimed interest under section 34 of the Land Acquisition Act, 1894. 9. The first contention raised by the learned counsel for the appellants was that the market value of the land to be acquired under Town Improvement Act, 1922 being determinable under the provisions of section 23 of the Land Acquisition Act, 1894, the implication of proviso to subsection (2) to section 23 thereof, which is to the following effect:-- "Provided that this subsection shall not apply to any land acquired under the Town Improvement Act, 1922. " added through Punjab Act, XII of 1 1954, being discriminatory and ultra vires to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 was ineffective and consequently 15 per centum compulsory charges could not be refused to the appellants. Learned counsel placing reliance on Muhammad Ashraf and others v. Province of West Pakistan 1985 SCM R 707 vehemently contended that modification of the provision of subsection (2) of section 23 of the Land Acquisition Act, 1894 by clause 10(2) of Schedule to Punjab Town Improvement Act, 1922, making the said provision inapplicable to the land acquired under Town Improvement Act, 1922, having declared ultra vires of section 299(2) of Government of India Act, 1935 by the Honourable Supreme Court with the following observation, the learned Referee Judge was bound to follow the same:-- "By clause 10(2) of the Schedule to the local Act, this subsection (2) of section 23 of the Land Acquisition Act was made inapplicable to any land acquired under the local Act. But this modification by the Schedule was struck down by this Court in Province of West Pakistan v. Salim Ullah PLD 1966 SC 547 as being ultra vires of subsection (2) of section 299 of the Government of India Act. The ruling is fully applicable to the instant case also because the first notification, which is relevant for the purpose, had been issued on 8-4-1955 when the Government of India Act, 1935, was still in force. The provision of section 23(2) is of mandatory nature and the District Judge was bound to comply with it." 1986 SCMR 643, the apex Court having examined clause 10(2) of the Schedule to the Town Improvement Act, 1922, which was held valid on the strength of Punjab Act, II of 1953 in Salim Ullah's use PLD 1966 SC 547, reconsidered the provisions of Land Acquisition Act, 1894 through Amended Act XII of 1954 for the purpose of Town Improvement Act, 1922 in the light of subsection (2) of section 299 of Government of India Act, 1935, which provides as under:-- "299(2). Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land or any commercial or industrial undertaking, or any interest in or in any company owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, it is to be determined." It was observed that subsection (4) of section 299 of the Government of India Act, 1935 provided that "nothing shall affect the provisions of any law in force at the date on the passing of this Act",
---
## Page 6
protected para. 10(2) of the Schedule to the Act and even if there could be any conflict, it could not be declared ultra vires the power of Legislature. In para. 19 of the judgment, it was held as under:-- "The position with regard to Punjab Act II of 1953 was different. It did not .Enjoy the protection of subsection (4) of section 299 of the Government of India Act. It was a law made subsequent to the enforcement of Government of India Act, 1935 and had to conform to the requirements of section 299, which was found lacking. In the case of Muhammad Ashraf it appears that this aspect of the case was not brought to notice. In the circumstances, the provisions of sub-para. (2) of para. 10 of the Schedule to the Act had the validity and had the effect of competently amending subsection (2) of section 23 of the Land Acquisition Act and as in the present case the acquisition proceedings had been taken under the Act as originally framed the denial of compensation of compulsory acquisition was not violative of any provision and had to be enforced and was rightly enforced by the High Court. " 10. The legal position regarding the non-application of subsection (2) of section 23 of Land Acquisition Act, 1894 for payment of 15 per centum additional charges on the acquisition of land under Town Improvement Act, 1922, having settled the modification through para.10(2) of the Schedule to the Town Improvement Act, 1922 was declared valid under section 299(2) of Government of India Act, 1935. The result was that benefit of proviso to subsection (2) of section 23 of the Land Acquisition Act, 1894 being not available to the appellants was not granted. Learned counsel without conceding the knowledge of above-referred judgments on the subject, contended that in view of divergent opinion expressed in the abovesaid judgments, the view taken in the earlier judgment can be followed on the basis of beneficial interpretation. We are afraid, no departure can be made to the law laid down by the Supreme Court on the question of non- payment of additional charges at the rate of 15 percentum permissible under section 23(2) of Land Acquisition Act, 1894, for the land to be acquired under Town Improvement Act, 1922. In the latter judgment, in an unequivocal terms, it was held with strong observations that section 299(2) of Government of India Act, 1935 was not considered in the earlier case. We, therefore, following the dictum laid down by the Honourable Supreme Court of Pakistan in the above judgment maintained that payment of compulsory charges at the rate of 15 percentum being not permissible under Town Improvement Act, 1922, the claim of the appellants is unfounded, which has been rightly refused by the lower Court in the reference. 11. We proceed with the next contention regarding the prevailing market value of the land under acquisition at the time of notification under section 36 of the Town Improvement Act, 1922 and its potential value. It is contended by the learned counsel that preponderance of evidence available on record would show that the price of the land for residential use was not less than Rs.20,000 per Kanal. Describing the character of land, it is argued that the same being situated within the commercial locality had potential value to be used for commercial purposes and consequently the transactions of sale and purchase of the land adjacent to the land in question possessing similar advantages were the best evidence in proof of the correct market value of the land but the Land Acquisition Collector as well as the learned Senior Civil Judge travelling on the mechanical formula of fixing the price on the basis of average calculated by the subordinate revenue staff, determined the value of land without taking into consideration the actual and potential value of the same at the relevant time. 12. Learned counsel appearing on behalf of Syed Mubarik Ali Shah in Regular First Appeal No.89 of 1967 taking us to the evidence in his case forcefully argued that the land of the appellant being of superior quality and of commercial character could fetch the price of Rs.50,000 per Kanal. 13. The perusal of record and the grounds of appeals unambiguously show that except Syed Mubarik Ali Shah, the remaining appellants inducing the initial claim of compensation demanded not more than Rs.10,000 per Kanal before this Court in appeal. Syed Mubark Ali Shah appellant
---
## Page 7
demanded compensation at minimum rate of Rs.20,000 per Kanal before the Referee Court and Rs.17,200 before this Court in appeal with the explanation that he claimed less value to that of the reference to save the court-fee. The review of the evidence, will necessarily be helpful in resolving the controversy regarding the character of land and its market value prevalent at the relevant time. 14. Maj. Syed Waris Shah (P.W.6) describing the value of land of Syed Mubarik Ali Shah at the rate of Rs.1,000 per Marla stated that the appellant was offered this .Price through him by a third person but the appellant demanded Rs.1,500 per Marla and bargain could not struck. According to him, the land owned by Syed Mubarik Ali Shah was surrounded by houses, a girls school, water works, constructed before the partition and residential scheme of Satellite Town, Rawalpindi developed in 1952. However, the witness has not been able to disclose the name of purchaser, who offered Rs.1,000 per Marlas for the purchase of the land in question. Muhammad Aslam (P.W.7) claimed purchase of four Marlas of land for a consideration of Rs.5,000 in 1958 in the vicinity of the land under acquisition, whereas Akbar Ali (P.W.8) claimed purchase of 17 Marlas of land for a consideration of Rs.8,000 in 1956 at a distance of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.