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Petitioner: MILITARY ESTATES OFFICER, HAZARA CIRCLE, ABBOTTABA AND ANOTHER VS Respondent: PIR JUDGMENT
Court Name: Peshawar High Court Judge(s): Syed Usman Ali Shah, Muhammad Khurshid Khan Title:MILITARY ESTATES OFFICER, HAZARA CIRCLE, ABBOTTABA AND ANOTHER vs PIR
JUDGMENT
Reported As: 1980 CLC 1467 Result: Order accordingly Judgment JUDGMENT ' MUHAMMAD KHURSHID KHAN, J.-These are fifteen Regular First Appeals, ten by the Central Government, Registered at Nos. 28/75, 68/75, 91/75, 95/75, 103/75, 107/75, 133/75, 7/76, 8/76 and 9/76 for the reduction of compensation, and five by the owners registered at Nos. 36/75, 111/75, 112/75, 136/75 and 161/75 for the enhancement of amount of compensation, fixed by the Reference Court. There are also two Cross Objections Registered at Nos. 3/76 and 4/76 by the proprietors in connection with two of these appeals, viz. Appeals Nos. 9/76 and 8/76 respectively directed against the compensation awarded to the objectors. All these arise out of twelve references under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act), and registered at Nos. 10/4, 23/4, 36/4, 40/4, 73/4, 78/4, 82/4, 83/4, 90/4, 94'4, 96/4 and 113/4, of 1971 at the instance of the owners of the lands, situate in villages Sultan Pur, Nowshera, Jhangra and Kailag, which have been compulsorily acquired for the Pakistan Ordnance Factory, Havelian project. ' The Notification under section 4 of the Act, bearing No, 32330 was published on the 21st of August, 1969, while Notification No, 7941/Rev. Under section 6 was issued on the 11th of March, 1970.- The award was announced on the 29th of July, 1970. The Collector valued the property on certain basis with which the proprietors were not satisfied. In consequence thereof, twelve. References, detailed above, were made before the Land Acquisition Judge of Hazara. These were decided by two different Judas who increased the compensation in all the cases. Against these decisions, fifteen appeals and two cross objections have been preferred. By this judgment, we propose to dispose of all the appeals and Cross-objections.
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' The dispute before us in all these cases is confined to the compensation determined by the Reference Court Before we enter upon the discussion of this point, we have to deal with a preliminary objection raised by the learned counsel for the respondents-land-owners, that the appeals preferred by the Central Government for which the land had been acquired were incompetent because it was not a party to the proceedings before the Collector. It was urged that notwithstanding the fact that a local authority or Company may appear and adduce evidence for the purpose of determining the amount of compensation as provided under section 50 of the Act, such local Authority or Company would not be entitled to demand a reference under section 18, and for that. Reason will have no right of appeal to the High Court against a decision of the Reference Judge. It was contended that if land is acquired for the benefit of the Central Government, the paid Government for the purpose of the Act, would be registered as a local authority and in that event, it would have no right to demand reference under section 18 much less will it have the right of appeal to the High Court. To support the contention that a local authority or Company, as the case may be, has no right to demand reference or to prefer an appeal, reliance is placed mainly on the case, WAPDA v. Aurangzeb Khan and 17 others (1). ' In that case, a reference had been made by the Collector at the instance of the owners whose lands had been acquired which was heard by an Additional District Judge. WAPDA was interested in that litigation as by reason of subsection (1) of section 50 of the Act, the cost of acquisition had to be defrayed by that Authority. Aggrieved by the decision of the Reference Judge enhancing the amount of compensation, an appeal was filed by WAPDA in the Peshawar High Court, Peshawar. A preliminary objection as to the maintainability of the appeal was raised. Considering the , case-law and the dictum from the treatises of Om Parkash Aggarwala. And Singhal on the subject, their Lordships disapproved the following passage appearing in the treatise of Singhal "No local authority or company is compelled to proceed under the Land Acquisition Act. 11 it can procure any land which it is desirous to acquire more cheaply by private negotiations, it is entirely at liberty to do so, but if it elects to set in motion the special powers given to Government for public subjects it can expect not higher privileges and power than those given to Government itself. Thus the interest of the local authority must be subservient to that of Government and it would be dangerous to alloy private individuals, local authorities and companies to interfere in a proceeding under Part III of the Act. Under such circumstances if Government declines to prefer an appeal the local authority cannot be permitted to do so except in cases of patent injustice." ' Their Lordships considered some pre-Partition cases, namely, Municipal Corporation of Patna v. Jugandra Narain Raikut (2). Fakirchand v. Municipality Hazro (3), Collector and Chairman v. Hiranad (4) and Nihalchand and others v. District Board, Mianwali (5) and came to the conclusion that if the Government did not prefer an appeal against the judgment of the Reference Judge, a local authority could not be permitted to call the Moment in question. It was therefore held that the appeal at the instance of WAPDA did not lie. - Although there is a contrary decision recent in time as reported in 1979'CLC.7 laying clown that a local authority or Company or a department of the Government interested in the acquisition (1) PLD 1975 Pesh. 1. (2) 410 382 (3) (1913)47 P R 225 (4) AIR 1929 Lab. 10 (5) AIR 1936 Lah. 564 proceedings have the same right of appeal as devolves on a party before a Civil Court, we are not called upon to decide this point in the present cases, unless of course, it is held that the Central Government comes within the purview of a local authority. The tie in, "Local authority" has nowhere been defined in the Act. In order to find out as to what does this expression exactly mean, reference may be made to section 3 of the General Clauses Act, 1897. In that Act, the term "Local authority" has been defined to mean a Municipal Committee, district board, body of port Commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund. This definition would undoubtedly hold good for construing the expression "local
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authority" occurring in the Act. It may at once be stated that the Government, whether Central or Provincial, cannot possibly be brought within the purview of the expression "local authority" as used in the Act. That being so, the case referred to, and relied on, by the learned counsel for the respondents-owners is clearly distinguishable and would have no application to the cases like the present one. ' The matter may be looked at from another point of view as well. It may be, although before us it was never, urged that since the lands in question had been acquired for the benefit of the Central Government; the law would not permit the said Government to go in appeal to the High Court. Such an argument, in our view, would not hold the field. There is no dispute on the point that acquisition proceedings were instituted for the benefit of the Central Government. It is also not in dispute that the said Government has been affected by the impugned decisions of the Reference Court whereby the amount of compensation determined by the Collector has been enhanced and in some cases to a considerable extent. Further, the Central Government was also impleaded as a party in the applications submitted by the land-owners themselves for making references under section 18 of the Act and it also actively participated in the proceedings before the Reference Court. Section 54 of the Act does not state at whose instance an appeal would lie. It, however, provides for appeals to the High Court subject to the provisions relating to appeals from original decrees under the Civil Procedure Code, under which an aggrieved party has a right of appeal. Reading sections 53 and 54 of the, Act together, the conclusion we have arrived at is that the Central Government has the same right of appeal as devolves on a party before a civil Court. But even if it be assumed for the sake of argument that such a right is not provided by these sections, it cannot at the same time be disputed that there is no provision in the Act or elsewhere prohibiting the Central Government from filing such an appeal. The most that can be said is that there is omission of an express provision permitting the Government to prefer an appeal against an order of the Acquisition Judge. This omission, however, cannot be understood to amount to prohibition. In this connection, reference may usefully be made to H. M. Siya & Co., Karachi v. Wazir Ali Industries Limited, Karachi and another (I) .Where the appellant had omitted to make Wazir Ali Industries Limited and their partners parties in the contests. The Supreme Court, while deciding the case, laid down a principle based on furtherance of administration of justice, so that on a decree or order being appealed against, such 'persons who are likely to be affected be permitted to challenge the same. The passage which is most (1) PLD 1969 SC 65 important from our point of view is that found at page 68 where their Lordships observed that : "There can be no dispute that the only party which was adversely affected by the order of ad interim injunction was respondents No, 1. We are satisfied that Saya & Co. Deliberately omitted to make them parties with the intention of avoiding a contest. They knew fully well that the reliefs sought were really directed against Wazir Ali Industries Limited, and their bankers. A stranger to a suit or a proceeding is not Prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the Civil Procedure Code deals with appeals from decrees and section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal. The Code, however, lays down that it is the decree or the order that has to be appealed against. If the decree or ordered appealed from adversely
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affects a person he should he permitted to challenge the same in appeal even if he was not made a party to the original suit or proceeding." Since the Central Government in the present case was a party before the Reference Court and is interested in the result of the litigation, as the cost of acquisition is to be defrayed by it, we are of the view that even on the basis of the rule laid down by the Supreme Court in the above-cited case, it (Central Government) was entitled to maintain the present appeals. We, therefore, hold that the present appeals preferred by the Central Government are maintainable. ' Having disposed of the preliminary objection, we now proceed to deal with the cases on their merits. There are four groups of cases, each group pertaining to a different village. It will be convenient to deal with the cases village wise. ' Sultan Pur : ' The Land Acquisition Collector proceeded on the basis of five years average. He assessed the compensation per kanal at the rate of Rs, 2,469.60 1,920.80 and 1,574.80 for Bari Abi, Bahir Di Abi and Maira, respectively. Two references registered at Nos. 82/4 and 96/4 of 1971, out of which Regular First Appeals Nos. 95/75 and 68/75 have arisen, were decided by the Land Acquisition Judge on 4th of February, 1975, and 18th November, 1974, respectively and he valued the Bari Abi and Bahir Di Abi at the following rates per kanal :- (i) Bari Abi ... Rs, 3,658.20 (ii) Bahir Di Abi ... Rs, 2,854.20 ' Reference No, 113/4 of 1971, the decision of which gave rise to Regular First Appeals Nos. 161/75 and 9/76 as well as Cross Objections No, 3/76, was decided on the 4th of Septembel', 1975, by the same Judge and he valued the lands at the following rates per kanal :- (i) Bahir Di Abi ... Rs, 2,262.20 (ii) Maira ... Rs, 1,674.80 (iii) Ghair Mazrooha ... Rs, 285.00 ' As regards Bari Abi, the Judge observed that its Market value per kind, on the basis of the Goshwara Exhibit P. W. 1/9, was Rs, 1,780.20 and since the compensation for this type of land had been assessed by the Collector at more than its market value, the claimants-petitioners would naturally get the amount in accordance with the award. ' It would be seen that the Land Acquisition Judge, Mr. Shamso Qamar Safi, adopted two different yardsticks in valuing the property of the same kind although the sale mutations on the basis of which the market value of the lands had to be worked out were the same. In Reference Nos. 82/4 and 96/4 of 1971, he valued Bari Abi of Bahir Di Abi per kanal at the rate of Rs, 3,658.20 and 2,854.20 respectively, whereas in Reference No, 113/4, he assessed the value and Bari Abi and Bahir Di Abi per kanal at the rate of Rs, 1,780.20 and 2,262.20 respectively. The reasons given by the Land Acquisition Judge for allowing higher amount of compensation in the two references and for fixing the amount at a much lesser rate in the third one are obviously conflicting and cannot be reconciled. On a careful analysis of the material on the record, we find that the Reference Judge, in valuing the Bari Abi and Bahir Di Abi in all these three cases, has not proceeded on correct premises. In References Nos. 82/4 and 96/4, he proceeded to rely on Goshwara Exh. P.1/1 which relates to the sales of mixed kinds of land while in Reference No, 113/4, he discarded this Goshwara exhibited as Exh. P. W. 1/8 saying that it was not helpful because it related to mixed type of land. There he relied on one year's average worked out on the basis of sale mutation attested during the period from 21st August, 1968 to 21st August, 1969, as is evident from Exh. P.W. 1/9. We are of the view that the proper course would be to find out the value of the lands as prevailing at, or near, the time of notification under section 4 of the Act. A reference to the document Exh. P. W. 1/9 in Reference No, 113/4 would show that the sale incorporated in Mutation No, 5 attested on the 3rd of July, 1969, was in closer promixity to the notification under section 4, and it would, therefore, give us a correct idea of the market value of
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Bari Abi kind of land. By virtue of this mutation, 10 marlas of Bari Abi were sold for Rs, 1,400. Worked out on this basis, the market value of one kanal of Bari Abi, would come to Rs, 2,800, and we fix the same value in respect of this type of land involved in the present litigation. ' As regards Bahir Di Abi, we find that there are only three sales. Incorporated in Mutation Nos. 9, 10 and 19 as shown in Exh. P.W. 2/D/1 in Reference No, 82/4, which are in close proximity to the notification under section 4. By these mutations, 1 kanal, 3 marlas of Bahir Di Abi was sold for Rs, 3,000. Worked out on this basis, the value of one kanal of land comes to Rs, 2,600. We would, therefore, hold that the market value of the land, Bahir Di Abi, involved in the case under discussion, was Rs, 2,600 per kanal. ' Coming now to the Maira kind of land, it may at the outset be stated that according to one year's average for the period preceding the notification under section 4, its market value comes to Rs, 1673.80 per kanal. ' It appears to us that sale embodied in mutation No, 2734 attested on the. 4th of August, 1969, which was in closer proximity to the notification under section 4 and by which 11 marlas were sold for Rs, 400 only, does not represent the correct market value because mutation No, 2791 which was attested earlier, i,e, 14th June, 1969 pertains to a sale of 2 kanals of Maira type of land for Rs, 4,000. In the circumstances, it would rather be safe to rely on one year's average which has also been accepted by the Reference Court, and according to which the market value of one kanal comes to Rs, 1,673.80. This amount has, however, been shown as Rs, 1,674.80 in the impugned judgment. Since the difference is very nominal, we would not interfere with the amount so fixed in the present case. ' It may be mentioned here that two out of the claimants of Reference No, 113/4, namely, Haji Baland Khan and Kala Khan, also claimed compensation for trees and a well respectively. None of these two claimants appeared into the witness box to support his own claim. The Reference Court came to the conclusion and we think rightly, that the evidence produced before it did not substantiate the claim of Haji Baland Khan regarding the trees. As regards the claim put forth by Kala Khan for the enhancement of compensation in respect of a well, the Court found that there was no reliable evidence to suggest that the amount of compensation fixed by the Collector was inadequate. A Commissioner was, no doubt, appointed for evaluating the well but the report submitted by him was set aside by the Court vide order dated 7th January 1974. In view of this position, no importance could be attached to the report. We have not been shown that in refusing the claim of Haji Baland Khan and Kala Khan, the Reference Court acted improperly or that its findings on the point are based on inadequate evidence. In such a situation, we would maintain its findings on the point. ' In the remaining three References pertaining to the lands of village Sultan Pur, viz., Nos. 7414, 78/4 and 83/4 which have led to Regular First Appeals Nos. 112/75, 133/75 and 111/75 respectively, there is also controversy in regard to the classification of the land. The Collector treated all the land involved in these references as Banjar Qadeem and valued it at the rate of Rs, 326 per kanal. The Reference Judge did not accept the claim of owners in Reference Nos. 74/4 and 83/4 with regard to the classification of the land. He, however, enhanced the compensation in these two references, from Rs, 326 to 597.40, in the first, and from Rs, 326 to Rs, 454 in the second reference vide his two separate orders dated 6th February 1975. In the third reference No, 78/4, he accepted the petitioners claim for the land being Maira and awarded him compensation at the rate of Rs, 1,574.80 per kanal, vide his judgment dated 7th April 1975. ' The land which is the subject matter of Reference No, 74/4 measures 5 kanals, 17 marlas and was comprised in Khasra Nos. 1597 and 1598. It was owned by Mohammad Miskeen and 5 others. The fact that this land was Maira and continued to be recorded as such till a little before the publication of notification under section 4. Is borne out by the entries in the revenue papers as well as the statement of Ali Gohar Patwari who was examined as P. W.
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1. It is in his statement, and indeed there is nothing to suggest the contrary, that the land was shown as uncultivated since 15th day, 1969. The notification under section 4, as indicated already, was published on 21st of August, 1969. This short period of about 3 months intervening between these two dates could not have the effect of converting Maira kind of land into Banjar Qadeem. We are, in the given circumstances, of the view that the land ought to have been treated as Maira and valued accordingly. ' The land which was the subject matter of Reference No, 784 measured .32 kanals 3 rnarlas and bore Khasra Nos. 1601 and 1602. These numbers correspond to old Nos. 1343 min and 1344 min respectively. The position of this land in the revenue papers appear to be exactly the same as that of the land bearing Nos. 1597 and 1598. The Reference Judge declared the land as Maira and for the reasons given by us in respect of the land bearing Khasra Nos. 1597 and 1598 we would hold that the view of the matter taken by the Acquisition Judge that the land ought to have been treated as Maira was correct. ' The case of the claimant of Reference No, 83/4 with regard to the classification of land stands on stronger footings than the case of the claimants of the References 74/4 and 78/4. In order to find out the nature of the land of Reference No, 8314 the Collector asked Mohammad Ismail Kanungo P. W. I to visit the spot. The latter went there and found that the land was cultivated and was not Banjar. There is no reason to discard the testimony of the said official. It follows, therefore, that this land was also Maira and never became Banjar. ' It would be seen that the lands which were the subject matter of the above three references were of Maira type. In the circumstance, what now requires to be seen is as to what was its market value at the relevant time. According to one year's average which should hold good, the market value comes to Rs, 1.673 80 per kanal. We are inclined to base our decision on one year's average It is obvious, therefore that the claimants were entitled to compensation for Maira type of land at the rate of Rs, 1,673.80 per Canal. It may, however, be added that the petitioners of Reference No, 78/4 would be entitled to compensation at the rate of Rs, 1,574.80 per kanal as fixed by the Land Acquisition Judge because they have neither preferred an appeal nor have they filed cross- objections for the enhancement of the amount so fixed. ' Nowshera: ' Regular First Appeals, 176;75 prefaced by the owners and 7/76 filed by the Central Government, arise out of Reference No, 23/4, while Regular First Appeals Nos. 76/75 preferred by the 'owners, and 107/75 on behalf of the Central Government, have arisen out of Reference .No, 10/4. Another Reference No, 36/4 has given rise to Regular First Appeal No, 28/75. ' The Land Acquisition Collector, on the basis of 5 years average, valued different kinds Of land at the following rates per kanal :- (i) Bari Abi (ii) Bahir Di Abi (iii) Barangur Alp( (iv) Maira (v) Rakar (vi) Ghair Mazrooha. ' The subject-matter of references Nos. 10/4 and 23/4 is only one kind of land, namely, Bahir Di Abi. These two references were decided on the Ist of April, 1975 and 12th of July, 1975 respectively by the same Land Acquisition Judge, Mr. Shamso Qamar Safi. In the first of these references, he valued the land at the rate of Rs, 1,463.60 per kanal. In the other reference, he assessed the price at the rate of Rs, 1,075 per kanal. In both the cases, he had before him the same mutations for the determination of the market value of the land acquired. Unfortunately, he adopted two different yardsticks in these cases having the same facts and for that he had to give reasons which were mutually
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destructive without going into the reasons advanced by him which undoubtedly, lack uniformity, we have decided to rely on two mutations Nos. 1959 and 1960 attested on 4th of July, 1969 which related to sales in closer proximity of the notification under section 4. On their basis, 34 kanals 19 marlas of Bahir Di Abi was sold for Rs, 50,000. The value of one kanal works out at Rs, 1,429. We, therefore, find that the market value of Bahir Di Abi was Rs, 1,429 per kanal. It will not be out of place to point out here that in Reference No, 23/4, the price of a well fixed in the award was also sought to be enhanced. The Reference Judge, however, declined to accept this prayer and we are of the view that he did so rightly because the evidence before him did not justify the enhancement of the amount fixed in the award. ' The third reference, namely, 36/4, was disposed of by the Land Acquisition Judge, S. Mir Muhammad Shah (since removed from service). He valued Bari Abi and Bahir Di Abi at the rate of Rs, 3,000 and Rs, 2,000 respectively. .This was, 'in fact. The amount at which the owners had claimed the compensation. The said Judge also awarded compensation at the rate of Rs, 2,000 per kanal even for Baranger Abi, Maira and Rakar Ghair Mazrooha, although for these types of land, the owner had claimed compensation at the rate of Rs, 1,500, Rs, 1,000, Rs, 700 and Rs, 500 respectively. ' It will be seen that the decisions of the Land Acquisition Judge, Mr. Shamso Qamar Safi, in the first two references decided by him on the 1st 'of April 1975 and 12th of July, 1975, in regard to the market price of Bahir Di Abi are at variance with each other…
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