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Constitutional Petitions Nos. 119 of 1975 and 230 of 1978, decided on 13th August, 1985.
---S. 7 Settlement Scheme No.IX Notification No.2/73/K Abadi/1061,dated 11‑6‑1974‑‑Katchi Abadi‑‑Notification, dated 11‑6‑1974 issued by Chief Settlement Commissioner under Settlement Scheme No. IX and signed by Settlement Commissioner on behalf of Chief Settlement Commissioner, held, competently issued.
Haji Seth Wali Muhammad and 4 others v. Member III, Board of Revenue, Baluchistan, Quetta and 5 others P L D 1984 Quetta 131 ref.
‑‑‑S. 7‑‑Settlement Scheme No. IX‑‑Katchi Abadi‑ Petitioners themselves filing their representation, for exclusion of land from Notification declaring it to be Katchi Abadi before Member, Board of Revenue for decision‑‑Petitioners, held, estopped from contending that his representation was wrongly decided or was not decided by competent authority.
‑‑‑S. 4‑‑Words 'transfer' and 'transferee' in S. 4, held, will include any subsequent transfer made by original transferee.‑‑[Interpretation of statutes].
‑‑‑S 4‑‑Act, being beneficial held, is to be construed in a manner which may advance object of Act and not to frustrate it.
‑‑‑S. 4‑‑Katchi Abadi‑‑Cancellation of existing transfers‑‑A permanent transferee has a right to dispose of property transferred to him, but if a law clearly provides for cancellation of such transfer, sale effected by such transferee cannot defeat provisions of law.
Saee Muhammad and another v. Talib Hussain Shah 1970 SCMR 641 and Haji Sultan Muhammad and another v. Muhammad Siddiq P L D 1973 S C 347 rel.
‑‑‑S. 7‑ Settlement Scheme No. IX‑‑Notification No. 2/73/K‑Abadi/1061, dated 11‑6‑1974‑‑Words 'any agreement, contract or instrument', held, are susceptible to a meaning which will include a sale transaction or a sale‑deed or conveyance deed executed by a transferee.
Sh. Hidayatullah v. The Settlement Commissioner (Policy), Punjab Lahore and another 1975 S C' M R 161 rel.
‑‑‑Ss. 2 & 4‑‑Settlement Scheme No. IX‑‑Katchi Abadi Compensation to original transferee‑‑Compensation, held, is to be determined by Government and not by Chief Settlement Commissioner‑‑Chief Settlement Commissioner and Government have been assigned different meanings and used in contradistinction‑‑Chief Settlement Commissioner in absence of an express delegation by Government cannot determine amount of compensation.
‑‑‑S. 4‑‑Compensation to original transferee‑‑Word 'compensation' used in S. 4 of Act without any qualification and without providing any special definition, held, will carry its ordinary literal meaning and will be given same meaning as has been given by superior Courts‑ Determination of compensation envisages application of mind as to arrive at proper and reasonable amount of compensation.‑‑[Words and phrases].
Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan P L D 1957 S C (Pak.) 9; M. Salim Ullah and others v . Province of West Pakistan and Land Acquisition Collector, Lyallpur P L D 1960 (W.P.) Lah. 450 and Land Acquisition Collector v. Abdul Aziz and others P L D 1965 (W.P.) Lah. 327 rel.
‑‑‑S. 4‑‑Compensation‑‑Land declared Katchi Abadi‑‑Amount of compensation fixed for payment to allottees having no nexus with amount of compensation which could be considered to be proper and reasonable‑ Provincial Government directed to fix amount of compensation in terms of S. 4 of Act after notice to parties.
‑‑‑Ss. 2 & 4‑‑Settlement Scheme No. IX‑‑Notification No. 2/73/K‑Abadi/ 1061, dated 11‑6‑1974‑‑Katchi Abadi‑‑Question whether petitioners whose land declared as Katchi Abadi entitled to opportunity of hearing‑‑A right of hearing, held, is to be provided to a person if any adverse order affecting his right to property is to be passed but this is subject to qualification that either by any express provision of law or by necessary implication intendment above right can be taken away‑‑Right of hearing was taken away from petitioners in respect of cancellation of their land for more than one reasons i.e. firstly cancellation of a transfer by operation of law, secondly it was subject to payment of compensation and thirdly it was to extent of land which was not in their physical possession‑‑Contention of petitioners that they were not heard before their land cancelled for Katchi Abadi repelled.
‑‑Art. 199‑‑Transfer of Evacuee Land (Katchi Abadi) Act (XIII of 1972), Ss. 4 & 7‑‑Petition against cancellation of petitioner's land declared as Katchi Abadi‑‑Limitation ‑Petition against order of cancellation hit by laches but question involved in petition already before High Court in another petition‑‑Delay in filing petition against impugned order ignored in circumstances.
Jaffar Khan v. The Settlement Commissioner, Karachi and another 1975 P L D Kar. 7 rel.
Basharatullah for Petitioners.
Haji Sarfraz Khan for Respondent No. 2.
Shakeel Ahmed for Respondents Nos. 3, 5, 6, 9, 10, 15, 15‑A to 15‑F, 16 to 18 and 18‑A.
Muhammad Muquim Ansari for Respondent No. 20.
Dates of hearing,: 7th, 11th and 13th August, 1985.
‑‑‑ By this common judgment, we intend to dispose of the above two petitions as they involve some common points of law. The brief facts leading to the filing of the above petitions are as follows:‑
One Syed Muhammad Zahoor Hasan son of Muhammad Athar had verified claim for Agricultural property. He was allotted agricultural land (hereinafter referred to as the 'land') measuring 3 rods, 21 poles and 11‑3/4 feet equivalent to 38.399 sq. ft. out of Khasra No. 5035 situated in Circle No. 1, Ward No. 15, Quetta/Pishin District. Afterwards, the above land was permanently settled and a mutation in the revenue record was effected on 26th January, 1966 having entry No 476. The land was assigned a new Khasra No. 13367/7958/5035, Khewat Khatoni No. 231/280, Tappa Circle No. 1, Quetta City. The said Syed Muhammad Zahoor Hasan sold the land to petitioner No. 1 on 3rd March, 1967 at the rate of Re.l per sq. ft. amounting to Rs.38,399 by getting the mutation effected in his name. It seems that the land was occupied by the private respondents. Some of whom were transferred the portions of land in their respective possession under Scheme No. VI and P.T.Os. were issued in their favour. When the petitioner No. 1 contacted the occupants for the payment of rent, one Muhammad Yamin and others filed revision before the respondent No. 2 (i.e. the Chief Settlement Commissioner) who by his order, dated 30th June, 1972 dismissed the same and ordered the cancellation, of P.T.Os. in their favour by holding that the land was agricultural land and was shown as 'Baghicha Chahi Sarjlarkhati' and it was rightly transferred to said Syed Muhammad Zahoor Hasan. It is the case of the petitioners that the petitioner No. 1 sold half of the land measuring 19,1991 sq. ft. to the petitioner No. 2 at the rate of Re.l per sq. ft. through Mutation Entry No. 751 attested on 29th June, 1973. It may also be stated that the petitioner No. 1 sent a notice, dated 3rd July, 1973 to the occupants and thereafter both the petitioners on 29th January, 1974 asked the occupants to purchase the land. However, upon the enforcement of Settlement Scheme No. IX, w.e.f. 17th October, 1973 framed in pursuance of section 7 of the Transfer of Evacuee Land (Katchi Abadi) Act, 1972 (Act XIII of 1972) (hereinafter referred to as the 'Act') enforced in Baluchistan on 1st June,, 1973, the respondent No. 2 through a Notification, dated 11th June, 1974 (hereinafter referred to as the 'Notification') declared, inter alia, the land as 'Katchi Abadi'. After that same was transferred to the occupants under the scheme. The petitioners made an application, dated 26th September, 1974 requesting that the land be deleted from the Notification, but the same was rejected on 23rd June, 1975. The petitioners, therefore, had filed the above petition on 4th July, 1975.
The petitioner had a verified claim in respect of agricultural land owned by him in District Hoshiarpur at the time of partition of India. In lieu of the above verified claim, he was transferred the land measuring 1 Acre, Zero rod and Zero pole, out of Khasra No. 7959/5035 under Extra‑Assistant Commissioner, Quetta Sub‑Division Office Order No. 184‑1/B/Reh; dated 15th January, 1960. After that Mutation Entry No. 264 attested on 15th July, 1960 was made in his favour. After that, entry in Jamabandi through Khewat No. 231, Khatoni No. 260 Khasra No 10167/7958/5035 measuring 43,536 sq. ft. and classifying as Aabi land was also made. It is the case of the petitioner that he had raised twenty‑two houses over the land and had let out the same to some of the occupants, which fact has been denied by the private respondents who are 48 in number and the above denial seems to be, prima facie, correct for the reason that they were transferred the portions of land in their respective possession through P.T.Os. and certain documents on record indicate that they were in possession even at the time when the land was transferred to the petitioner. In this petition also, the Chief Settlement Commissioner through the Notification, dated 11th June 1974 (hereinafter referred to as the 'Notification') declared the land as 'Katchi Abadi' and transferred the same to the private respondents in 1974, but the above petition was filed on 12th April, 1978 i.e. after expiry of nearly four years from the date of the above Notification.
3. Both the above petitions have been contested by the private respondents. They have averred that they had been in possession of the land for about thirty years much before the transfer of the same to the petitioners in respect of Constitutional Petition No. 119 of 1975 and to the petitioner in Constitutional Petition No. 230 of 1978, inasmuch as P.T.Os. were issued in their favour for the land on the basis of their possession and construction.
4. In support of the above petition, Mr. Basharatullah, learned counsel for the petitioners in Constitutional Petition No. 119 of 1975 has urged as follows:
(i) that the Notification has not been issued by the Chief Settlement Commissioner;
(ii) that since the petitioners are purchasers from the transferee of the land and are not the original transferee, the land could not have been declared as 'Katchi Abad:' within the ambit of the Act;
(iii) that their representation for exclusion of the land from the Notification was not disposed of by the competent authority;
(iv) that under the Act, the compensation is to be determined by the Government and not by the Chief Settlement Commissioner and
(v) that the compensation to be paid under section 4 of the Act, should be proper and reasonable and not notional.
5. Mr. Iftikhar Muhammad, learned counsel appearing for the petitioner in Constitutional Petition No. 230 of 1978 has adopted the above arguments of Mr. Basharatullah, but submitted his arguments on the question of laches as his petition was filed after the expiry of nearly four years from the date of Notification.
Haji Sarfraz Khan learned counsel appearing for the official respondents has candidly submitted as follows:
(i) that Mr. Fateh Khan Khajak who had issued the Notification was never appointed as the Chief Settlement Commissioner; and
(ii) that the petitioners are entitled to proper and reasonable amount of compensation.
6. On the other hand, Mr. Muqim Ansari, learned counsel for the private respondents in the first petition has urged as under:‑
(i) that the petitioners in Constitutional Petition No. 199 of 1975 have not raised any ground as to the validity of the Notification, but have, inter alia, challenged the vires of the Act;
(ii) that even otherwise, the Notification was issued under the order of the Chief Settlement Commissioner and, therefore, it was validly issued;
(iii) that the petitioners in Constitutional Petition No. 119 of 1975 have no locus standi to impugn the Notification, as they are not the original transferee of the land and
(iv) that the compensation amount has been reasonably and properly fixed.
7. Mr. Shakeel Ahmed, learned counsel appearing for the private respondents in Constitutional Petition No. 230 of 1978 has adopted the above submissions of Mr. Muqim Ansari, Advocate and further contended that Constitutional Petition No. 230 of 1978 suffers from laches and, therefore, is liable to be dismissed on that account. He has further submitted that the averments contained in para. 5 of the counter‑affidavit of respondent No. 49, dated 22nd July, 1985 have not been denied by the petitioner by filing any rejoinder and, therefore, it is to be presumed that the above averments as to the competency of the Notification are accepted by the petitioner.
8. As regards the first contention that the Notification has not been issued by a competent person, it may be observed that no such ground has been raised in the above Constitutional Petition No. 119 of 1975, but such a ground has been raised in the other petition. If we would not have been deciding the above Constitutional Petition No. 119 of 1975 pertaining to the Notification which is also the subject‑matter of the second petition, we would have dismissed the above second petition on the ground of laches, as there seems to be no prima facie plausible explanation for the delay for the entire period of nearly four years. Since we have not dismissed the above second petition on the ground of laches, we have examined the soundness of the above contention as to the competency of the person who had issued the Notification. It may be advantageous to reproduce the above Notification which reads as follows:‑
Dated, Quetta the 11th June, 1974.
No. 2/73/K‑Abadi/1061.‑‑ In exercise of the powers conferred upon him under the Settlement Scheme IX for Disposal of Evacuee Land situated in 'Katchi Abadi' published in the Baluchistan Extraordinary Gazette, dated 20 10‑1973, the Chief Settlement Commissioner, Baluchistan declares the following Khasra numbers of Urban Agricultural Land, situated within the limits of Quetta Municipality as 'Katchi Abadi'. All allotments/ transfers against verified land claims of persons not in possession of the land are hereby treated as cancelled as per section 4(2) of 'Katchi Abadi' Act No. XIII of 1972 published in Extraordinary Gazette of Pakistan, dated 18‑7‑1972:‑
(1)Khasra No. 5035 measuring 140,185 sq. ft. except the area coming in road.
(2) Khasra No. 5156 measuring 161,208 sq. ft.
(3) Khasra No. 5152 measuring 40,611 sq. ft.
(4) Khasra No. 10138/7012 measuring 21,780 sq. ft.
(5) Khasra No. 490 measuring 21,356 sq. ft.
The allottees of these Khasra numbers will be paid compensation at the rate of Rs.20 per produce index unit in the shape of promissory Bonds redeemable after 3 years.
Applications from the occupants of Katchi Abadi are hereby invited in the prescribed pro forma laid down in Katchi Abadi Scheme, referred to above within 10 days from the date of publication of this Notification which should be submitted to the Deputy Settlement Commissioner, Quetta. The transferees will be required to pay the transfer price in lump sum or in six half‑yearly instalments at their option in accordance with the assessment made by the Chief Settlement Commissioner, Baluchistan.
(Sd.)
Settlement Commissioner,
for Chief Settlement Commissioner,
Baluchistan. "
A perusal of the above Notification indicates that the same has been issued by the Chief Settlement Commissioner, Baluchistan and has been signed by the Settlement Commissioner for the Chief Settlement Commissioner. In this regard, it may also be pertinent to reproduce para. 5 of the aforesaid counter‑affidavit. of the respondent No 49 in Constitutional Petition No. 230 of 1978, dated 22nd July, 1985, which reads as follows:‑
"5. The contents of para. 7 are admitted to the extent that Notification, dated 11th June, 1974 was issued by Mr. Fateh Khan Khajjak which was in accordance with law and he was vested with authority to do so. It may be pointed out here that the issuance of notification in question was approved by the Chief Settlement Commissioner as would be evident from the record of the Settlement Authorities which, if desired, may be summoned. The said notification was issued by the competent authority within the four corners of jurisdiction lawfully vested in it."
It is evident from the above‑quoted para. 5 of the counter affidavit that the respondents in the said petition have taken express plea that the notification was approved by the Chief Settlement Commissioner and they ,had also requested for summoning of the record of the Settlement Authorities. The petitioner in above Constitutional Petition No. 230 of 1978, did not file any rejoinder to repudiate the above averments.‑ In this view of the matter, it can be presumed that factually the Notification was issued in pursuance of the order of the Chief Settlement Commissioner. Even otherwise, from the contents of the Notification, reproduced hereinabove, as pointed out earlier, it is evident that it was issued by the Chief Settlement Commissioner though signed by the Settlement Commissioner on behalf of the Chief Settlement Commissioner. There is a presumption of regularity of the official act.
We are, therefore, of the view that the Notification has been competently issued. Learned counsel for the petitioners have referred to the case of Haji Seth ‑Wali Muhammad and 4 others v . Member III, Board of Revenue, Baluchistan, Quetta and 5 others reported in P L D 1984 Quetta 131, in which, a D.B. of this Court had declared the Notification in question as without lawful authority to the extent of declaring the portion of the land transferred to the petitioners in the said petition measuring 18,551 sq. ft. out of Khasra No. 5035 on the ground that the petitioners were actually in possession of the said land and, therefore, the said transfer was saved by subsection (2) of section 4 of the Act. In our view, the above‑cited case has no application firstly, for the reason that the declaration of the Notification without lawful authority was to the extent of the land measuring 18,551 sq. ft. transferred to the petitioners in the said petition and, secondly, that the above transfer was saved by subsection (2) of section 4 of the Act.
9. Adverting to Mr. Basharatullah's second contention that the petitioner's representation was not decided by a competently authority, it may be observed that no such ground has been raised in the petition. Even otherwise, the same is devoid of any force. The order, dated 23rd June, 1975 passed on the petitioner s representation indicates that the petitioners had made representation before the Member, Board of Revenue and the same was decided by him. It cannot, therefore, be urged that the above representation was not decided by the competent authority. The petitioners having filed the representation themselves before the Member Board of Revenue are estopped from contending that it was wrongly decided by the Member, Board of Revenue. Additionally, in our judgment, dated 30th July, 1985 given in Constitutional Petition No. 119 of 1976 Muhammad Hussan and three others v. Member III, Board of Revenue and 20 others we have held on the basis of the relevant provisions of the enactment and Notifications that the Member, Board of Revenue was competently appointed as the Chief Settlement Commissioner for the purposes of the Act.
10. Reverting to Mr. Basharatullah's contention that the petitioners in Constitutional Petition No. 119 of 1975 being the purchasers from the original transferee Syed Muhammad Zahoor Hasan , the land could not have been declared as 'Katchi Abadi' it may be advantageous to reproduce section 4 of the Act, which reads as follows:‑
"4. Cancellation of allotments and transfers of evacuee land.‑ (1) All allotments and transfers of evacuee land in any 'Katchi Abadi' shall stand cancelled as from the appointed day, and the allottees or transferees of such land shall be paid such compensa tion therefor as may be determined by Government.
(2) Nothing in subsection (1) shall apply to such evacuee land as was occupied by its allottee or transferee on the appointed day and does not exceed his verified claim."
A plain reading of the above section manifests that all allotments and transfers of evacuee land in any 'Katchi Abadi' stood cancelled as from the appointed day subject to the right of the allottee or transferee of such land to be paid compensation to be determined by the Government. Furthermore, as per amended definition of the term 'Evacuee Land given in clause (d) of subsection (1) of section 2 of the Act, evacuee land includes any land, plot or vacant site allotted. Transferred or otherwise disposed of by the Chief Settlement Commissioner or by any other Authority under either of the acts i.e. The Displaced Persons (Rehabilitation and Settlement) Act, 1958 and The Displaced Persons (Land Settlement) Act, 1958. The allotment or the transfer was to stand cancelled with effect from the appointed day upon declaring by the Chief Settlement Commissioner inhabited area of evacuee land as 'Katchi Abadi'. In .our view, the words 'transfer' and 'transferee' have wide connotation and will include any subsequent transferee and subsequent transfer made by the original transferee. The above construction is supported by the language of the enactment; firstly, inasmuch as, subsection (1) of section 4 contemplates the payment of compensation to be determined by the Government for the cancellation of the transfer. This would not have been provided for, if it would have been intended to cover only the original transferees, as under the Rehabilitation/ Transfer Scheme, the amount of cash compensation for the verified claim in respect of agricultural land for each verified index unit was fixed, which could have been paid to the original transferee; secondly, that the Act was designed to permanently settle the persons who have raised constructions on evacuee land by transferring the portions in their respective possession, at the same time, it has saved the transfers under subsections (2) of section 4 of the Act of the portions of land actually in physical possession of a transferee to the extent of his verified claim, and thirdly the above construction is supported by section 3 referred to hereinbelow. The Act being a beneficial Act is to l be construed in a manner which may advance the object of the Act and D not to frustrate it.
11. Mr. Basharatullah has referred to the following cases:‑
(i) Sae Muhammad and another v. Talib Hussain Shah 1970 S C M R 641, in which, the honourable Supreme Court while dismissing an appeal, maintained the judgment of the erstwhile High Court of West Pakistan, Lahore Bench, holding that upon permanent transfer of the agricultural land under The Displaced Persons (Land Settlement) Act, 1958, the right of pre‑emption can be claimed by the person entitled to it.
(ii) Haji Sultan Muhammad and another v. Muhammad Siddiq P L D 1973 S C 347. In the above case also, it was held that a permanent transferee is competent to sell the land transferred to him and that the right of pre‑emption in respect thereof can be claimed.
12. In our view, the above cases have no application. There cannot be any cavil to the proposition that a permanent transferee has the right to dispose of the property transferred to him, but if a law clearly provides for the cancellation of such transfer, the sale effected by such transferee cannot defeat the provisions of the Act, particularly, when section 3 of the Act provides that this Act shall have effect notwithstanding anything to the contrary contained in any other law or any decree, judgment or order of any Court or other authority or any agreement, contract or instrument. The words "any agreement, contract or instrument" are susceptible to a meaning which will include a sale transaction or a sale‑deed or conveyance deed executed by a transferee.
13. In this regard, it may be pertinent to refer to an order of the honourable Supreme Court relied upon by Mr. Muqim Ansari, learned counsel for the private respondents, passed in the case of Sh. Hidayat ullah v. The Settlement Commissioner (Policy), Punjab Lahore and another 1975 S C M R 161, in which, the honourable Supreme Court while declining a leave against the judgment of the Lahore High Court passed in a Constitutional petition, in which, vires of the Act were impugned, observed as follows:‑
"Learned counsel has not been able to challenge the consti tutionality of the Ordinance or to point out any violation of the scheme framed under section 7 (ibid). This piece of legislation only reflects the implementation of the new policy and programme of social justice and is aimed at providing shelter to the homeless and the poor. No exception can be taken to its retrospective enforcement of the constitutional or legal plane. We have not been able to spell out any justification for the grant of leave to appeal. The petition is, therefore, dismissed "
The construction, which we have placed on the relevant provision of the Act is supported by the above observation of the honourable Supreme Court.
14. As regards Mr. Basharatullah's contention that under the Act, the compensation is to be determined by the Government and not by the Chief Settlement Commissioner, it may be observed that in clause (c) of section 2 of the Act, the Chief Settlement Commissioner has been defined as means the Chief Settlement Commissioner appointed by the Government under either or both the Acts i.e. The Displaced Persons (Compensation and Rehabilitation) Act, 1958 and The Displaced Persons (Land Settlement) Act, 1958, whereas, "Government" has been defined as means a Provincial Government. It is, therefore, evident that the terms Chief Settlement Commissioner and the Government have been assigned different meanings and have been used in contradistinction and hence, the Chief Settlement Commissioner in the absence of an express delegation by the Government cannot determine the amount of compensation as subsection (1) of section 4 of the Act, quoted herein above, provides determination of the compensation amount by the Government and not by the Chief Settlement Commissioner. The Notifica tion indicates that the amount of compensation has been fixed by the Chief Settlement Commissioner and not by the Government. However, it was urged by Mr. Muqim Ansari, Advocate that under the Rehabilitation and Settlement Scheme for each verified P.I. Unit for each district, the amount of compensation was fixed by the Settlement Authorities with the concurrence of the Government and, therefore, the amount mentioned in the Notification, namely, Rs.20 per produce index unit, is reproduction of the said amount fixed under the scheme. The above contention is devoid of any force. No document has been placed before us to indicate that on what basis of Rs 20 per produce index unit mentioned in the Notification, have been fixed. It is not the case of the department that the above compensation amount was fixed by the Government.
15. We are, therefore, of the view that the above contention of Mr. Basharatullah is in consonance with the Act. This leads us to the second limb of the argument of the learned counsel for the petitioners that the compensation amount should be reasonable and proper and not notional. In furtherance of his above submission, Mr. Basharatullah has referred to the following cases:‑
(i) Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan P L D 1957 S C (Pak.) 9, in which, the honourable Supreme Court while construing the word compensation' used in Article 15 of the late Constitution of Pakistan, 1956 observed as follows:‑
"It is not disputed by Mr. Brohi, and it appears to me to be otherwise plain, that the word 'compensation' here is used in the sense in which it is used in the law relating to the exercise of the power of eminent domain, namely, as meaning the market value of the property acquired. While defining compensation Nichols in his book 'Eminent Domain', 1950 Edition Vol. I, states at pages 28‑29:‑
'Compensation', as used in the constitutional provision as a limitation upon the power of eminent domain, implies a full and complete equivalent (usually monetary) for the loss sustained by the owner whose land has been taken or damaged'.
Many of the State Constitutions require that the compensation shall be 'just, reasonable' or adequate, but these words are mere epithets rather than, qualifications and add nothing to the meaning. The phrase 'just compensation' means the value of the land taken and the damage, if any, to land not taken. More than this it does not imply. The objective 'just' only emphasises what would be true if omitted, ‑‑namely, that the compensation should be the equivalent of the property.' This being the meaning of 'compensation' it has to be admitted that the Act in question is essentially a confiscatory enactment because taking a man's property by paying him, say twice the annual net income of that property, cannot possibly be held to be an acquisition for compensation. If, therefore, the Act had been passed after the Constitution came into force, it would undoubtedly have been constitutional; but our Constitution‑makers in their wisdom and for reasons best known to them decided to provide in the Constitution that whereas no property could in future be acquired without compensation, the acquisition laws that had already been passed, however, piratical, were not to be called in question on the ground of want or inadequacy of compensation."
(ii) M. Salim Ullah and others v. Province of West Pakistan and Land Acquisition Collector, Lyallpur (Faisalabad) P L D 1960 (W.P.) Lah. 450. In the above case, a D.B. of the erstwhile High Court of Lahore while considering the question of compensation for the land compulsorily acquired under the Land Acquisition Act, observed as follows: ‑
"13. It was held by one of us in Malik Khizar Hayat Khan Tiwana v. Punjab Province P L D 1955 Lah. 88 that 'compensation' means the rendering of 'an equivalent in money', and when it was argued that the omission of the word 'just' or 'equitable' as an adjective qualifying 'compensation' could suggest that compensation need not represent the full money equivalent, the reply was that:‑
'That is a notion too preposterous for words. Indeed I am not going to say, for the benefit of a headnote in a law journal, that 'compensation' means just compensation; for it means neither more nor less than what it means to the English language. It means 'counter‑balancing', 'rendering of equivalent', 'requital' weighing one thing against another' (oxford Dictionary, Volume II), but it does not mean weighing copper against gold. Therefore, you cannot compensate a man without requiring him for his 'land' without the rendering to him of an equivalent in money. If the Government acquires the Shah Din Building on the Mall for twenty‑five rupees, will owner be compensated Then if the Court is not to decide whether a person has been 'compensated' under section 299, and the reference to the District Court is also excluded by the amending Acts, let it not be said in this new era of freedom and conscience that this is a fundamental principle of British Jurisprudence and International Law; let us not profane the Fundamental Rights of Man'.
'The use of the word 'just' or 'adequate' with 'compensation' is, 1 shall permit myself to say a tautological aberration."
(iii) Land Acquisition Collector v Abdul Aziz and others P L D 1965 (W . P.) Lah. 327 , in which case also, the question before a D . B. was as to the construction of the word 'compensation' used in the relevant section of the Land Acquisition Act. The learned Members of the Bench after making a reference to the above Supreme Court case and also to paragraph 284 of Volume 10 of the Halsbury's Laws of England, 3rd Edition, held that the essence of the concept of compensation being the rendering of an equivalent in money.
16. We are inclined to hold that the word 'compensation' used in section 4 of the Act without any qualification and without providing any special definition, will carry its ordinary literal meaning and will be given the same meaning as has been given by the superior Courts while construing the same in relation to the Land Acquisition Act or Article 15 of the Constitution of Pakistan, 1956. Determination of compensation envisages the. application of mind as to arrive at proper land reasonable amount of compensation. In the instant case, the petitioner No. 1 in Constitutional Petition No. 119 of 1975 had purchased the land for a sum of Rs.38.399 at the rate of Re.1 per sq. ft., whereas, as per order, dated 26th June, 1974 passed by the Settlement Commissioner in pursuance of discussion with the Chief Settlement Commissioner, the private respondents were charged price of the land at Rs.1.50 per sq. ft. (Annexure 'K' to the Petition No. 119 of 1975). In the Notification, the compensation amount fixed is Rs.20 per produce index unit. The land was transferred to said Syed Muhammad Zahoor Hasan against 27 P I. Units and, therefore, the petitioners as per Notification, would be entitled to Rs.540, as the total amount of compensation i.e. 20 x 27 and that too in the shape of promissory bonds redeemable after three years.
17. In our view, the amount of compensation fixed by the Chief Settlement Commissioner in the Notification has no nexus with the amount of compensation which can be considered to be proper and reasonable.
18. Before concluding the discussion on the submissions of Mr. Basharatullah, learned counsel for the petitioners in the first petition, it may be observed that while narrating the contentions on 7th August, 1985, he had submitted that since the impugned Notification was issued without hearing the petitioners, the same was void being in violation of the principles of natural justice, but during his submissions on 11th August, 1985, he did not elaborate his above submission However, we may observe that a right of hearing is to be provided to a person, if any adverse order affecting his rights to property is to be passed, but this is subject to qualification that either by an express provision of law or by necessary implication intendment, the above right can be taken away. From the Act in question, it seems that by necessary intentment, such a right was taken away for more than one reasons; firstly, that the cancellation of a transfer is by operation of law, secondly, it is subject to payment of compensation and, thirdly, it is to the extent of land which is not in actual possession of a transferee. In the instant case, it is admitted position that the petitioners were not in physical possession of the land. They had themselves approached the occupants for the sale of the land.
19. As regards the question of lathes, in Constitutional Petition No. 230 of 1978, it may again be stated that the impugned Notification was issued on 11th June, 1974 and the above petition was filed on 12th April, 1978 i.e. after the expiry of nearly four years. The petitioner has averred in the petition that he had gone to Faisalabad after letting out twenty‑two houses allegedly constructed by him and there he had fallen ill. Apart from the fact that there is no material on the basis of which it can be inferred that factually the petitioner had raised any construction we have already observed hereinabove that factually, the above averment of the petitioner is not correct. Furthermore, we find that the Secretary, Board of Revenue by his letter, dated 4th November, 1976 had informed the petitioner that the land was transferred to the 48 persons mentioned therein. He has filed the above letter as Annexure 'H' to the above Petition No.230 of 1978. It is, therefore, evident that the petitioner had come to know about the transfer in any case in November, 1976. Furthermore, record of this Court indicates that the petitioner had got the affidavit in support of the petition attested on 8th December, 1977. In other words, the petitioner's petition was ready on 8th December, 1977, but he filed the same on 12th April, 1978. As stated hereinabove, we would have dismissed the above petition on the. ground of laches but since in the other petition the same Notification , is the subject‑matter, we have not non‑suited the petitioner. Mr. Iftikharl' Muhammad, learned counsel for the petitioner has referred to the case of Jaffar Khan v . The Settlement Commissioner, Karachi and another PLD 1975 Kar. 7, in which a learned Single Judge of the erstwhile High Court of Sind and Baluchistan did not dismiss the petition on the ground that the question involved in the petition filed after the lapse of five years, was already involved in a petition already filed in the High Court.
20. For the aforesaid reasons, we allow the above two petitions to the extent of directing the Provincial Government to fix the amount of compensation in terms of section 4 of the Act after notice to the parties. However, there will be no orders as to costs
The above are our reasons in pursuance of short order of even date
M . Y . H Petition allowed.
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