Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: GOVERNMENT OF SINDH and others VS Respondent: Mst. SIRTAJ BIBI and another
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui Title: GOVERNMENT OF SINDH and others vs Mst. SIRTAJ BIBI and another Case No.: Civil Appeal No,8 of 1996 Date of Judgment:2001-07-09 Reported As: PLD 2001 Karachi 442 Result: Order accordingly
JUDGMENT
JUDGMENT This appeal under section 54 of Land Acquisition Act, 1894 is directed against the order dated 30- 6-1996 by the District Judge, Jacobabad in Reference No,1 of 1995 made at the instance of appellants. In view of order proposed to be made presently, the relevant facts and circumstances, succinctly stated are as follows:-- On 6-2-1993 Cantonment Executive Officer, Pano Aqil Cantonment informed Deputy Commissioner, Jacobabad that the P.A.F. Authorities have decided to acquire a piece of land comprising Survey Nos.63, 64 and 65 in Deh Rindwahi, Taluka and District Jacobabad for construction of grid station. The Cantonment Executive Officer, inter alia, sought information with regard to the acquisition cost of the land based on the sale transaction effected in the vicinity during the preceding one year. On 10-2-1993 Assistant Commissioner, Jacobabad called upon Mukhtiarkar, Jacobabad to furnish information so that notification under section 4 of the Land Acquisition Act may be prepared and submitted to the Deputy Commissioner, Jacobabad. After gathering information the Assistant Commissioner and Land Acquisition Officer, Jacobabad intimated that the estimated cost of acquisition was Rs,17,92,735. The said amount was remitted by the Military Estates Officer, Hyderabad Circle, Hyderabad and was credited in the National Bank of Pakistan, Tower Road Branch, Jacobabad on 6-6-1994. This amount was inclusive of 15% compulsory acquisition charges of the land. Thereafter, Notification under section 4 of the Land Acquisition Act was issued and the Assistant Commissioner, Jacobabad started necessary enquiry. The Tapedar and Khatedars were called. Thereafter, Notification under section 6 of the Land Acquisition Act was issued with the
---
## Page 2
approval of Commissioner, Larkana Division. A Notification under section 17(4) was also issued and thereafter necessary requirements of sections 8, 9 and 10 of the Land Acquisition Act were complied with. The physical possession of the land measuring 18-34 acres was handed over to the Defence Department on 2-8-1994. While estimating the cost of land on the basis of information received from the Revenue Authorities the prevailing market price was taken at Rs,85,000 per acre. Objections were invited to the said estimate by the Land Acquisition Collector and the. Military Estates Officer Hyderabad Circle, Hyderabad submitted objections to the effect that no increase should be made to the estimated cost of Rs,85,000 per acre. The landowner/respondent Mst. Sirtaj Bibi stated in her objections that the land is situated in the Municipal limits and is adjacent to the National Highway. It is situated. On the side where Jacobabad town was expending and the land was adjacent to Sabzi Mandi/Fruit Market constructed by the Market Committee, Jacobabad. It was further stated that surrounding lands were disposed of for residential and commercial purposes, and therefore, the potential value of the land has increased several times, as such the value of the land cannot be assessed in terms of acres and the value of the land should be assessed in accordance with its potential value if put to different use. It was asserted that in the above situation the proper value of the land at the time of its acquisition was not less than Rs,100 per sq. Foot and therefore compensation was claimed at the said rate plus 15% compulsory acquisition charges. The Land Acquisition Collector/Assistant Commissioner on receiving the objections again sought information from Mukhtiarkar and City Survey Officer, Jacobabad, Sub- Registrar, Jacobabad and Administrator Municipal Committee, Jacobabad on the point whether the land in question was agricultural or commercial, whether it falls within the municipal limits of the city and consequently is to be categorized as urban and what was the market .Value of the land on 18-4-1993 i,e, the date of publication of Notification under section 4 of the Land Acquisition Act. Sub-Registrar, Jacobabad informed that the land was situated near Sabzi Mandi, Truck Ada, College and District Jail. It was near National Highway and present value of the land was reported to be between Rs,90 to 95 per sq. Foot. Mukhtiarkar, Jacobabad reported that the land was commercial and not agricultural, it fell within the municipal limits and was an urban property and its market value on 18-4-1993 was reported to be between Rs,95 and 100 per sq. Foot. The report of the Administrator, Municipal Committee, Jacobabad was to the same effect. On 7th of March, 1995, Officer Commanding. P.A.F. Base, Shahbaz informed Deputy Commissioner, Jacobabad that due to change in operation plan P.A.F. Does not require this land. It was requested that the acquisition proceedings may not be pursued further. However, the request was not accepted for the reason that under section 48 of the Land Acquisition Act, 1894 acquiring agency has no right to withdraw from land acquisition proceedings after taking over possession. The P.A.F. Authorities were informed accordingly. Prior to that Military Estates Officer, Hyderabad, had taken exception to the collection of fresh information on the point of market value of the land and vide letter dated 1-3-1995 stated that if more than 10% increase was likely to be made over and above the estimated cost of Rs,85,000 per acre he may be intimated before announcement of award so that acquisition proposal is referred to the Federal Government in the Ministry of Defence to abandon or change the site in question, because of unrealistic, unjustified and one-sided, proportionate increase. Objections were also filed by Military Estate Officer to the demand of Rs,100 per sq. Foot by the owner of the land. It was contended that Sabzi Mandi has been acquired by the Market Committee, Jacobabad during the same year at the rate of Rs,75,000 per acre and, therefore, the price demanded by the owner of land is unrealistic and unreasonable. A complaint was also made to Senior Member, Board of Revenue, Sindh by Cantonment, Executive Officer Pano Akil Cantonment vide letter dated 6-3-1995 to the effect that the Assistant Commissioner/Land Acquisition Collector under the influence of landowner has started collecting information afresh and during personal visit to the Assistant Commissioner/L.A.C. It appeared that he was inclined to
---
## Page 3
pass award whereby the Ministry of Defence shall sustain approximate loss of rupees eight crores in one transaction alone and with this precedent on record, the overall loss to the Ministry of Defence would be Rs,44 crores, when the rest of 80 acres are acquired in the same vicinity. It was pointed out that a similar situation arose in District Thatta when the land was acquired for P.A.F. Base Bhulari which put the Government of Sindh in very awkward and embarrassing position. Ultimately the Assistant Commissioner and L.A.C., Jacobabad gave the award under section 11 of the Land Acquisition Act and fixed the price of the land at Rs,85 per square foot and allowed compulsory acquisition charges at Rs,15% of total compensation. The amount of compensation inclusive of Rs,15% compulsory acquisition charges worked out to Rs,8,02,63,111. This award was announced on 7-3-1995 and thereafter, the landowner received under protest the amount of Rs,17,92,735 which was deposited by the acquiring agency, on 8-3-1995. Thereafter, at the instance of Provincial Government on behalf of Federal Government a reference was made to the Court under section 18 of the Land Acquisition Act, 1894. ' During the course of proceeding in reference one Amir BuxTapedar, was examined on behalf of the appellant who produced relevant Revenue Record to show that the land in question was purchased by Mst. Sirtaj Bibi on 14-3-1989 for total consideration of Rs,1,58,000 and the land was "Banjar Qadeem". He further stated that Sabzi Mandi started work from 8th May, 1996. On behalf of respondent/landowner one Bahadur Ali Clerk in Tax Branch Municipal Committee, Jacobabad was examined. He produced record pertaining to the auction of plots on Shikarpur-Jacobabad Road at New Truck Stand, which was held on 15-4-1996. The plots measuring 448 sq. Feet were sold in auction for the pirce ranging between Rs,69,000 to 81,000. The respondent No,1 or her attorney did not enter the witness-box. The learned District Judge, Jacobabad confirmed the award, dismissed the reference and hence this appeal. I have heard Mr. S. Muhammad Zaki, learned Dy. A.-G. For the appellants and Mr. Mushtaq A. Memon, learned counsel for the respondent No, 1 at length. During the course of arguments Mr. Mushtaque Memon, learned counsel for the respondent No,1 contended that the price fixed by the Land Acquisition Officer in the award is on lower side as compared to market value. He has further contended that the future potential of the land is also required to be considered and according to him by now the value of the land has increased manifold. According to the learned counsel if the land is returned to the respondent No,1, she would be able to sell the same in small pieces and would earn many times more than the compensation awarded by the Land Acquisition Officer and upheld by the Court. S. M. Zaki learned Dy. A.-G. Submitted that the land is no more required by the Government of Pakistan, Ministry of Defence and the Government of Pakistan is prepared to withdraw from the acquisition and has no objection if the land is restored to the respondent No, 1 . The learned Dy. A.- G. Further stated that the land in question is "Banjar Qadeem" and is of no use to the Government of Pakistan, Ministry of Defence, therefore, it would be appropriate if with the consent of the parties the acquisition proceedings are de-notified under the directive of this Court so that the Government of Pakistan is saved of colossal loss and the respondent No,1 is able to reap full fruit of his property by selling the same in a smaller pieces as stated by the learned counsel for the respondent No, 1 . However, Mr. Mushtaq Memon submitted that in case the acquisition proceedings are undone the respondent No,1 should be awarded appropriate rent/compensation for the land which remained in possession of appellant No,2 since August, 1994. Mr. Mushtaque Memon submitted that the respondent No,1 was not allowed to take benefit of land for about seven years and, therefore, is entitled for the rent thereof. He initially demanded rent at the rate of Rs,5 per square foot per month. On calculation of rent at this rate the total claim worked out to be Rs,34,20,00,000. Realizing that the demand of rent at the rate of Rs,5 per square foot per month was unrealistic particularly looking to the fact that entire compensation which is objected to in this appeal is worked at
---
## Page 4
Rs,8,20,63,111 only, Mr. Mushtaq Memon, learned counsel for the respondent No,1 stated that in or case pertaining to the land near Larkana, rent was allowed to him by this Court at the rate of Rs,0.05 per square foot per month in sixties. The copy of judgment was not available with Mr. Memon and the particulars of the said land were also not available. The rent calculated at the rate of Rs,0.05 per square foot per month worked out at Rs,3,42,00,000. Mr. S.M.Zaki, learned D.A.-G. Submitted that even this amount was unreasonable. He submitted that admittedly the land in question is Banjar Qadeem and neither the landowner can derive any benefit from the use of land itself nor the Federal Government has derived any benefit out of the land as it is not fit for agricultural purpose and the Federal Government has abandoned the project of construction of Grid Station over the land in question. He contended that this sole project which could be derived from the land in question is the alleged increase in the value of land itself, having attained the status of urban property of commercial use. Thus, the benefit which can be derived from the land is attached to the land itself and if the land is restored to the respondent No,1/landowner, it shall be restored to her with all the benefits i,e, increased value of the land. The learned D.A.-G.Has submitted that during the entire period consumed in the acquisition proceedings, the landowner has not suffered any loss and no damage has been caused to her. On the contrary, with the restoration of land to her as demanded by her counsel, she is likely to earn enormous profit/benefit by sale of the land in small pieces at the increased commercial value alleged by the learned counsel for the respondent No,1. The learned D.A.-G.Has clarified that it should not be taken as concession on his part regarding the commercial nature of the land or increased value thereof justifying the compensation awarded by the Land Acquisition Collector and his contention is based on the assertions made by the learned counsel for the respondent No, 1 . He has further stated that although he would not concede for payment of any rent to the landowner/respondent No,1 in the case of restoration of land to her but if his plea is not accepted that with the restoration of the land, the respondent No,1 on her own assertions shall be greatly benefited and, therefore, no compensation/rent be paid to her, then at the most, the amount of Rs,17,92,735 already received by the respondent No,1 in the month of March, 1995 under protest which was inclusive of 15% compulsory acquisition charges may be allowed to be retained by the respondent No,1. The learned D.A.-G.Has further clarified that the said amount may not be allowed to be retained by the respondent No,1 on the basis of any concession on his part but in the discretion of this Court. After having argued on the above aspects, the learned Advocates stated that there would be another difficulty in deciding the appeal on the above lines, because there is no provision for withdrawal of Government from acquisition of any land of which possession has been taken. In this behalf they have referred to the provisions contained in section 48(') of the Land Acquisition Act which reads as follows: "48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.--(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any' land of which possession has not been taken." The learned Advocates were pointed out that the provisions contained in the above section empowers the Government to withdraw from the acquisition of any land of which possession has been taken, meaning thereby that the Government can exercise such discretion unilaterally and without consent of the landowner or the approval of any authority under the Land Acquisition Act, 1894. For exercise of such discretion on the part of Government no intervention of any authority under the Land Acquisition Act or any Court is required. The learned Advocates were further required to address the arguments if the provision contained in section 48(1) of the Land Acquisition Act shall operate as a prohibition on exercise of inherent jurisdiction by this Court to make an appropriate order which serves the ends of justice. The learned Advocates for the parties did not provide any assistance to this Court on this point, except the statement that in the Land
---
## Page 5
Acquisition Act or any other law there is no prohibition preventing this Court from making an appropriate order to achieve the ends of justice. As already observed the learned Advocates have addressed the arguments on the point of market value of the land in question, however, in view of the order proposed to be made presently I would not like to give any finding on the point of market value of the land. First of all I would like to examine whether this Court is empowered to make an order directing the authorities under Land Acquisition Act to de-notify the acquisition of the land and all other Notifications in this behalf, restore the title and possession of the land to the land owner/respondent No,1 and to restore the position as prevailing at the time of initiation of the acquisition proceedings. The ancillary question for consideration would be whether in doing so a reasonable rent/compensation can be awarded to the landowner. Before giving finding on the above question, I would like to reproduce the relevant provisions of law:-- "Land Acquisition Act, 1894 section 54. Appeals in proceedings before Court.--Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid, an appeal shall lie to the (Supreme Court) subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof. Section 53. Code of Civil Procedure to apply to proceedings before Court.--Save insofar as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, shall apply to all proceedings before the Court under this Act. Civil Procedure Code, section 151.Saving of inherent powers of Court.--Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. Order 41, Rule 33.Power of Court of Appeal.---The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass, or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of .The respondents or parties, although such respondents or parties may not have filed any appeal or objection: Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." A perusal of section 54 of the Land Acquisition Act under which this appeal has been preferred clearly shows that the appeal is preferred subject to the provisions of Civil Procedure Code and the provisions applicable to the appeal from the original decree are applicable. This section makes the provisions relating to the filing of appeals and disposal thereof as are applicable to the appeal from the original decree. Section 53 of the Land Acquisition Act makes all the provisions of the Civil Procedure Code applicable to all the proceedings before the Court under the Land Acquisition Act with the sole condition that if. There is any inconsistency or conflict between the provisions contained in Civil Procedure Code and the Land Acquisition Act, the provisions contained the latter shall prevail. The expression Court is defined in section 3 of the Land Acquisition Act to mean a principal Civil Court of original jurisdiction including the Court of the any Additional District Judge and any Judge whom the Provincial Government may appoint by name or by virtue of his office to perform all or any of the functions of the Court under the Land Acquisition Act. By now, it is an established proposition of law that appeal is the continuation of the original proceedings and the
---
## Page 6
Appellate Court can exercise all the powers and jurisdiction conferred on the Court of original jurisdiction and can make all the orders which the original Court could have made or was empowered to make. This principle is so well-entrenched in the administration of justice that I need not to dilate in detail on this point. A perusal of Order 41, Rule 33, C.P.C. Further shows that very wide discretion is given to the Appellate Court in terms of this rule, in order to prevent the ends of justice from being defeated. The Appellate Court has been fully empowered to do complete justice and can pass any decree or order. It empowers the Appellate Court to ignore such technicalities which tend to defeat the ends of justice and to remove all hurdles. This rule empowers the Appellate Court to interfere where it becomes necessary to adjust or re-adjust the right and interest of the parties or for settlement of mutual right and obligations of the parties in accordance with the justice, equity and good conscience. So far section 151, C.P.C.. Is concerned, it recognizes the inherent power of the Court to make such orders as may be necessary for the ends of justice. No new power is conferred on the Court under section 151, C.P.C. But it merely preserves the inherent power of the Court and removes every doubt about the inherent jurisdiction of the Court by declaring that nothing in the Civil Procedure Code shall be deemed to limit or otherwise affect the inherent powers of the Court. The inherent power of the Court has been reserved to meet a situation where no express provision of law is applicable and such power can be exercised if there is no specific prohibition for a particular Act. It is further to be kept in view that the inherent power cannot be exercised to further injustice as it is specifically stated in section 151, that the inherent power of the Court is to be exercised for making such orders as may be necessary for the ends of justice. This inherent power is necessary because the human conduct and the varying situations in human society are so numerous, unpredictable and sometimes so complicated that any system of law and the general rules contained therein cannot regulate for all the times to come, each and every situation arising in peculiar circumstances and thus, it is not possible to make express provisions so for all the situations that may possibly.Happen. It is the duty of the Judges to apply law, not only to what appears to be regulated by their express proposition, but to all the cases to which a just application of them may be made and which appeared to be comprehended either within the express sense of law or within the consequences of achieving the ends of justice. The principle of law has been laid down in very lucid and precise terms by Mahmood, J., "Courts are not to act upon the principle that every procedure is to be taken to be prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle prohibition cannot be presumed." (5-A-163 F-B, cited in Aamer Raza's Code of Civil Procedure VIIIth Edition 2000, 350). Now I would like to cite a few judgments in support of my above view. His Lordship A.R. Cornelius, C.J. Speaking for the Supreme Court of Pakistan in the case of S.M. Yousaf & Brothers v. Mehdi Muhammad Yoopa PLD 1965 SC 15, held as follows:-- "The terms of rule 33, Order XLI, C.P.C. Are of the widest amplitude to enable an Appellate Court to pass decrees according to the justice of the case. The language referred is affirmative and rule is further strengthened by no obstante clause, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the Appellate Court considers should be allowed within the framework of the suit. "General propositions extracted from the precedent cases are to the effect that the power given by the rule is widely expressed and must be applied with discretion, where interference is required 'to adjust the right of the parties in accordance with the justice, equity and good conscience'. Where the failure to exercise the power 'would lead to impossible, contradictory and unworkable orders', undoubtedly are considerations which would the exercise of the discretion conferred by the rule,
---
## Page 7
but it is right to say that if these propositions are to be understood as limiting the exercise of the power within the circumstances specified, they would be in excess of the powers given to the Courts, to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation." A Single Judge of this Court (Mr. Justice Naeeumuddin, as his lordship then was) has held in the case of Habib Bank Limited…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.