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Official Citation: 2023 PLJ 862
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-06-14
Parties: National Command Authority, etc vs Zahoor Azam, etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-06-14, officially reported as 2023 PLJ 862. In this matter between National Command Authority, etc and Zahoor Azam, etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLJ 2023 Lahore 862
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf, Jawad Hassan Title: National Command Authority, etc vs Zahoor Azam, etc Case No.: R.F.A No.83 of 2014 Date of Judgment:2023-06-14 Reported As: 2023 LHC 3306, 2024 CLC 1, PLJ 2023 Lahore 862 Result: Appeal Partly Allowed
JUDGMENT
JUDGMENT Mirza Viqas Rauf, J. By way of this single judgment, we intend to decide the title appeal as well as R.F.As No.53, 84 of 2014 and R.F.A No.155 of 2016 as all these appeals are arising from award No.395/DDO(R) Dated 16th July, 2009 whereby land measuring 177 Kanal 2-Marla situated in village Lab Thathoo, Tehsil Taxila, District Rawalpindi was acquired for the expansion and protection against any security hazard to Air Weapons Complex (hereinafter referred to as "AWC"), Village Lab Thathoo Taxila. 2. Facts forming background are that on the request of the Director Works & Services, Directorate of Works & Services Air Weapons Complex Wah Cantt, Land Acquisition Collector, Taxila (hereinafter referred to as "L.A.C") initiated the proceedings for acquisition of piece of land for expansion and protection against any security hazard to "AWC", a project of vital national importance by issuance of notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as "Act"), which was approved by the District Collector, Rawalpindi and published in the Punjab Gazette on 4th December, 2004, declaring that the land measuring 180- Kanal 2 Marla specified in the notification is required for the purpose of defense project of AWC- PAF, Wah Cantt. This followed a notification under section 17(4) & 6 of the "Act", whereby provisions of sections 5 and 5-A of the "Act" were waived and Collector was authorized under section 7 of the "Act" to take order for acquisition of the said land. The acquiring department, however, excluded 3-Kanal of land and finally 177-Kanal 2-Marla land was notified as per notification under sections 17(4) and 6 of the "Act" from Village Lub Thathoo, Tehsil Taxila, District Rawalpindi. After issuance of notices under sections 9 & 10 of the "Act" and observing other codal formalities, award in terms of
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section 11 of the "Act" was announced wherein compensation for the acquired land was determined in the following manner:- Village Khasra No. Area K-MRate per KanalTotal Cost Lab Thathoo1842 to 1850 136-05 Rs.70,000/-Rs.95,37,500/- 2144/1-2 and 214519-11 CommercialRs.6,00,000/-Rs.1,17,30,000/- 21-06 ResidentialRs.3,50,000/-Rs.74,55,000/- Total 177-02 Total Rs.2,87,22,500/- 15% compulsory land acquisition charges Rs.43,08,375/- Grand Total Rs.3,30,30,875/-
The land owners feeling dissatisfied from the compensation, moved their petitions under section 18 of the "Act" before the "L.A.C", who routed the same to the learned Senior Civil Judge for decision, which were since decided through separate orders, hence these appeals. Brief Background of R.F.A.No.83 of 2014.a 3. This appeal is on behalf of National Command Authority (NCA) and Air Weapons Complex (AWC) (hereinafter referred to as "beneficiary department") under section 54 of the "Act" challenging the vires of order dated 6th December, 2013 passed on a reference petition filed by respondents No.1 to 5 (hereinafter referred as "land owners"), whereby the learned Senior Civil Judge accepted the reference petition and held the "land owners" entitled to receive the compensation @ Rs.3,00,000/- per Marla alongwith 15% compulsory acquisition charges and 8% interest compound interest under section 28 of the "Act" from the date of award till the date of payment of compensation. Brief Background of RFA No.53 of 2014. a 4. This appeal is on behalf of "land owners" arising out of order dated 6th December, 2013 whereby on their reference petition, the compensation was enhanced from Rs.70,000/- to Rs.10,00,000/- per Kanal alongwith 15% compulsory acquisition charges, 8% interest compound interest under section 28 of the "Act" on the enhanced compensation from the date of award till the date of payment of compensation but they still feel unsatisfied. Brief background of R.F.A No.84 of 2014 a
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5. This appeal is again on behalf of "beneficiary department" against the same order, which is under challenge in R.F.A No.53 of 2014. Brief background of R.F.A No.155 of 2016. 6. R.F.A No.155 of 2016 is also on behalf of one of the "land owner", who has challenged the order dated 29th April, 2016, whereby on his reference petition, the learned Senior Civil Judge, Rawalpindi held him entitled to receive compensation @ Rs.6,00,000/- per Kanal alongwith 15% compulsory acquisition charges, 8% compound interest on the excess amount under section 28 of the "Act". 7. Learned counsel representing the "beneficiary department" submitted that compensation was rightly determined by the Collector in the award. He added that the Referee Court, without adverting to the material pieces of evidence, enhanced the compensation in a flimsy manner. Learned counsel contended that while enhancing the compensation, learned Senior Civil Judge has mainly relied upon an application form for membership of "AWC" Employees Housing Society (Exh.A8), which was even not admissible in evidence. Learned counsel submitted that in view of statement of Muhammad Yasin Abbasi/AW-1, the former DDO (R) and his report Exh.A1, compensation cannot be awarded at the rate determined by the Referee Court. It is vehemently contended by the learned counsel for the "beneficiary department" that the Referee Court proceeded in a mechanical manner without application of judicious mind to the facts of the case and as such impugned orders resulting into enhancement of compensation are not tenable. In support of his contentions, learned counsel placed reliance on FEDERATION OF PAKISTAN through Secretary Ministry of Defence and another v. JAFFAR KHAN and others (PLD 2010 Supreme Court 604), ASKARI CEMENT LIMITED (FORMERLY ASSOCIATED CEMENT LIMITED) through Chief Executive v. LAND ACQUISITION COLLECTOR (INDUSTRIES) PUNJAB and others (2013 SCMR 1644) and MANZOOR HUSSAIN (deceased) through L.Rs. v. MISRI KHAN (PLD 2020 Supreme Court 749). 8. While responding to the contentions of learned counsel for the "beneficiary department", Mr. Imran Hassan Ali, Advocate representing the "land owners" in R.F.A No.83 of 2014, submitted that the acquired land was commercial in nature and to this effect, overwhelming evidence is available on the record. He added that Muhammad Yasin Abbasi, former DDO(R) was examined for the production of documentary evidence in the shape of his report Exh.A1. Learned counsel submitted that in terms of Article 134 of the Qanun-e-Shahadat Order, 1984, said witness could not be cross-examined. Learned counsel emphasized that compensation was not enhanced by the Referee Court merely on the basis of Exh.A8 but whole evidence was taken into consideration for the said purpose. It is submitted that documents Exh.A2 to Exh.A8 were though tendered in the statement of counsel but no objection was taken at the relevant time and as such "beneficiary department" is precluded to take any such objection at the belated stage. Reliance is placed on MUHAMMAD IQBAL v. MEHBOOB ALAM (2015 SCMR 21), GULZAR HUSSAIN v. ABDUR REHMAN and another (1985 SCMR 301), PERVAIZ AKHTAR and others v. LAND ACQUISITION COLLECTOR and others (PLD 2022 Lahore 730), FEDERAL GOVERNMENT OF PAKISTAN through Ministry of Defence Rawalpindi and others v. Mst. ZAKIA BEGUM and others (PLD 2023 Supreme Court 277) and Mst. AKHTAR SULTANA v. Major Retd. MUZAFFAR KHAN MALIK through his legal heirs and others (PLD 2021 Supreme Court 715). 9. Mr. Tanvir Iqbal Khan, Advocate representing the "land owners" in RFA No.53 of 2014 submitted that the land owned by his clients was abutting the main Hazara Road and is of commercial nature. He added that though land in question was of one kind and nature but it was divided into two categories without any rhyme and reason. Learned counsel submitted that the "land owners" were deprived of from due compensation. It is vehemently argued by the learned counsel that while determining the compensation, the Collector did not take into consideration the potential value of the acquired land. In support of his contentions, learned counsel placed reliance on AIR WEAPON COMPLEX through DG v. MUHAMMAD ASLAM and others (2018 SCMR 779).
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10. Mr. Muhammad Asif Chaudhary, Advocate representing the "land owners" in R.F.A No.155 of 2016, while adopting the arguments of learned counsel for the other "land owners" submitted that though land of his client was situated in the same Khasra numbers where land of "land owners" namely M/s Amjad Kamal Malik falls but he was discriminated in the matter of compensation. Learned counsel contended that his client is also entitled for the same treatment as he cannot be discriminated in terms of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. 11. Heard. Record perused. 12. As already observed that on the request of Director Works and Services, Directorate Works and Services, Air Weapons Complex Wah Cantt, land measuring 177-Kanal 2-Marla situated in village Lab Thathoo was acquired for the expansion and protection against any security hazard to "AWC", a project of vital national importance through awarded dated 16th July, 2009. For the purpose of acquisition, notification under section 4 of the "Act" was published in the gazette on 4th December, 2004, which followed notification under section 17 (4) & 6 of the "Act". The acquired land comprising of 177-Kanal 2-Marla formed part of Khasra Nos.1842 to 1850, 2144/1-2 and 2145. It evinces from the award that from Khasra Nos.1842 to 1850, an area of 136 Kanal 5-Marla was acquired for which compensation was awarded @ Rs.70,000/- per Kanal. The portion of acquired land situated in Khasra Nos.2144/1-2 and Khasra No.2145 was, however, distributed in commercial and residential character and while treating 19-Kanal 11- Marla as commercial, compensation was fixed as Rs.6,00,000/- per Kanal whereas for rest of 21-K 6-M, which was treated as residential, Rs.3,50,000/- per Kanal was awarded. There are thus three categories of "land owners" whose land was acquired through award. The "land owners" in RFA No.83 of 2014 were divested from their land measuring 25-Kanal 13-Marla bearing Khasra No.2144/1-2 and 2145 out of which 19-Kanal 11-Marla was treated as commercial whereas 6-Kanal 2 Marla was treated as residential. Their claim in the reference, however, was that whole land was commercial in nature and as such they claimed compensation @ Rs.10,00,000/- per Marla. In support whereof, they produced Muhammad Yasin Abbasi, former DDO(R) as AW-1, in whose statement report dated 29th October, 1997 was tendered as Exh.A1. In addition, one of the "land owners" Zahoor Azam appeared as AW-2, who in his statement reiterated the contents of his reference petition. Syed Ghulam Mustafa Shah was produced as AW-3 to further strengthen the claim, however, copies of notification and awards alongwith copy of record of rights, 'Aks Shajra Kishtwar' and application form for membership was produced in the statement of counsel. It would not be out of place to mention here that all the "land owners" have produced almost similar evidence. 13. In order to diminish the value of the evidence produced by the "land owners", the "beneficiary department" produced Khalid Hussain, Assistant Air Weapon Complex (AWC) as RW-1, who also tendered certain documents in evidence to rebut the claim of the "land owners". 14. After having apprised the evidence, learned Senior Civil Judge enhanced the compensation @ Rs.3,00,000/- per Marla i.e. Rs.60,00,000/- per Kanal. In order to evaluate the findings of the trial Court, we have also reappraised the evidence produced by both the sides. As the acquired land was bifurcated in two categories i.e. commercial and residential but it is claimed by the "land owners" that their land was of commercial in nature, so it would be apt to first determine this fact. 15. In their reference petition, "land owners" at the very outset, asserted that whole land bearing Khasra Nos.2144 and 2145 is commercial in nature and abuts main G.T Road leading towards Abotabad surrounded by many other commercial properties, including petrol pumps/CNG Stations, etc. To this effect, in addition to oral account, the "land owners" also produced 'Aks Shajra Kishtwar' as Exh.A7, which is evident of the fact that their land is located at the periphery of the main Hazara Road. While responding these assertions, the "beneficiary department" did not specifically deny the facts asserted in the petition. In para-1 in the latter portion of their reply, an evasive denial to this effect was though made, which is nothing but an admission of fact on their
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part as per contemplation of Order VIII Rule 5 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as "CPC"). The statement of Zahoor Azam, AW-2 is also unequivocal to this effect. Khalid Hussain, RW-1, during cross-examination, also confirmed the status of the acquired land as commercial in the following words: - The above extract of the evidence of the parties leads us to an irresistible conclusion that acquired land was of commercial nature at the time of its acquisition. 16. Next comes the matter relating to the compensation of acquired land. Since we have already noted the rate at which the Collector fixed the compensation and the land owners claimed it from the Referee Court and the amount for which they were held entitled on their reference, so we would not go into desultory details to that effect, so as to avoid the repetition. 17. Section 23 of the "Act" provides the mechanism for the determination of compensation for its award to the landowners in lieu of acquisition of their land. For ready reference and convenience, same is reproduced below: - "23. Matters to be considered in determining compensation.- (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration- Firstly, the market value of the land at the date of the publication of the notification under section 4, sub-section (1); Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; Thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land. Fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and Sixthly, the damage (if any) bona fide 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. (2) In addition to the market-value of the land as above provided, the Court shall award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition. (3) For the purpose of clause first of sub-clause (1) of this section the market value of the land shall be determined on the basis of the average net income of that land for the five years preceding 1st September, 1961: Provided that if in any of these years that land or any portion of it has not been cultivated, the net income of such land or portion in that year shall be taken to be three times the land revenue assessed thereon, if no land revenue has been so assessed, three times the lowest rate of land revenue assessed on neighboring land; Provided further that in respect of land which is situated in town or village abadi or land which is attached to a house, manufactory, or other building and is reasonably required for the enjoyment and use of the house, manufactory, or building, the market- values shall be the market-value according to the use to which the land was being put on the 1st September, 1961." From the bare reading of the above provision, it is apparent that the intent of legislature was to give it wider scope so the factors for the purpose of determination of compensation cannot be restricted to some specific conditions. While interpreting the true import of section 23 of the "Act",
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the Superior Courts have outlined the salient features to be taken into consideration for assessing the compensation of acquired land. Most commonly derived of which are as under: - (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 circumstances of each case. 18. Section 23 of the "Act", thus, does not hinge upon a single factor, rather it provides for various matters to be taken into consideration while determining compensation. Initially, there was a trend that while determining the compensation, market value of the land at the date of publication of notification under section 4 of the "Act" was mainly taken into consideration but with the passage of time, law to this effect has gone under radical change and now the dominant factor is the potential value of the land. Market value is only one of such factors to be considered for the purpose of award of compensation to the land owners. Location, neighborhood, potentiality or other benefits, which may ensue from the land in future could not be ignored. The most dominant and guiding factor would be that the compensation should be determined at the price, which a willing buyer would pay to a seller as per his satisfaction. But at the same time, one cannot lose sight of the fact that compensation cannot be awarded to the "land owners" as a bounty of state. 19. It would not be out of context to mention here that initially the term "potential value" was not so recognized to section 23 of the "Act" but gradually it attained paramount importance and became the most dominant factor for the determination of compensation. Reference to this effect can be made to AIR WEAPON COMPLEX through DG versus MUHAMMAD ASLAM and others (2018 SCMR 779). In the recent past, this Court has also reiterated the above principles in the case of PERVAIZ AKHTAR and others v. LAND ACQUISITION COLLECTOR and others (PLD 2022 Lahore 730) but the most recent case is FEDERAL GOVERNMENT OF PAKISTAN through Ministry of Defence Rawalpindi and others v. Mst. ZAKIA BEGUM and others (PLD 2023 Supreme Court 277). The relevant extract from the same is reproduced below: - "11. The law of acquisition is confiscatory in nature and easily deprives an individual of their property and all rights attached to it. The Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) gives every citizen the right to acquire, hold and dispose of property in every part of Pakistan under Article 23. Property has been interpreted to mean and include a right of proprietorship and includes every possible right or interest abstract or concrete. It includes the right to own, possess and enjoy the property (Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44). The right to own property being a fundamental right is inclusive of the right to possession, right of control and the right to derive income from the property. Accordingly, the right to own property under Article 23 of the Constitution means the right to own economically productive property associated with agriculture, commerce, industry and business. Hence, it is a source of livelihood and provides economic security to a person. This goes to the underlying right to dignity of an individual and their home, as prescribed in Article 14 of the Constitution. Article 24 of the Constitution protects the right to own property such that no person can be deprived of his property save in accordance with law under Article 24. The exception to this fundamental right as per Article 24 is compulsory acquisition for public purpose, which means that the State can acquire private
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property for public purpose under the authority of law, which provides for compensation and either fixes the compensation or provides for a mechanism to fix compensation. The Constitution, therefore, mandates that if there is any acquisition by the State, it will be under a Statute, which provides for due process and compensation. So the Constitution has ensured that if acquisition is necessary it comes at a cost, which is compensation. The right to compensation under the authority of a law has a constitutional underpinning that is the protection given to the right to own property. In the context of acquisition it means that a person who owns property has to be compensated on account of being deprived of their property. When a person is deprived of their right to own property, even if in accordance with law, they are deprived of their right to control, possess and earn from that property. And this deprivation is what must be compensated." 20. Now adverting to the matter in issue, so as to examine the question relating to the proper compensation to the "land owners", it is observed that "land owners" in R.F.A No.83 of 2014 were owning land measuring 25-Kanal 13-Marla forming part of Khasra No.2144/01 and 2144/02 out of which 19-Kanal 11-Marla was treated as commercial and rest as residential. Since we have already determined the status of acquired land as commercial in the light of our discussion in preceding paras, so we shall now proceed on the same analogy to this extent. At the cost of repetition, we observe that compensation was claimed by the "land owners" at the rate of Rs.10,00,000/- per Marla in their reference petition, which tends to Rs.20,000,000/- per Kanal. To this effect, statement of Muhammad Yasin Abbasi (AW-1) in the first instance is of significant importance. It is though stance of the "land owners" that he was only examined for the purpose of tendering report Exh.A1 but admittedly he was not summoned by the orders of the Court as is required under Order XVI Rule 6 of "CPC". AW-1 was even not the court witness, so no other legal inference can be drawn except that he was produced by the "land owners" for their own cause, as such he shall be treated as their witness, being examined to support their claim. 21. So far contention of learned counsel for the "land owners" that in terms of Article 134 of the Qanun-e-Shahadat Order, 1984, AW-1 could not be subject to cross-examination, suffice to observe that Article 134 only immunes a witness from the test of cross-examination if he was summoned to produce a document but this is not the case. As already observed that AW-1 was never summoned as was required under Order XVI Rule 6 "CPC", rather he was produced by the "land owners" as their own witness. Article 134 of the Qanun-e-Shahadat Order, 1984 would thus not come into play and as such said witness was rightly cross-examined. Needless to mention that AW-1 had though served in the revenue department but at the relevant time, he was not in service and apparently he appeared in his personal capacity to support the cause of the "land owners". As per his statement, at the time of his inspection, the valuation of the commercial property was Rs.3,00,000/- per Kanal. AW-1 also tendered his report as Exh.A1 wherein it is mentioned that "land owners" demanded the compensation at the rate of Rs.40,000,00/- per Kanal. In this regard, we cannot ignore the statement of AW-2, who during cross-examination deposed as under: - 22. It appears that the Referee Court, while ignoring the above noted material pieces of evidence, rested its findings mainly on Exh.A8, which was made part of record through the statement of counsel for the "land owners" depriving the "beneficiary department" to raise any objection qua its admissibility. Before us, to this effect both the sides have referred various judgments. First of the series is GULZAR HUSSAIN v. ABDUR REHMAN and another (1985 SCMR 301), which…
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