Find a Lawyer

Civil Appeal No. 143 of 1973, decided on 24th November, 1985.

(Against the judgment and order, dated 3‑8‑1971 of the Lahore High Court, Lahore, in R.F.A. No. 19 of 1967).

‑‑‑Art. 185(3) Land Acquisition Act (I of 1894), S.18‑‑Punjab Town Improvement Act (IV of 1922), Ss. 58 & 59‑‑Land acquisition compulsory acquisition‑‑Additional compensation‑‑Denial of‑‑Effect‑‑Leave to appeal granted to examine inter alia whether a Tribunal and not Senior Civil Judge had exclusive jurisdiction to dispose of a reference under S. 18 of Act (I of 1894) read with Ss.58 & 59 of Punjab Town Improvement Act (IV of 1922) and whether denial to appellant of fifteen per cent additional compensation for compulsory acquisition of land, was in violation of law laid down by Supreme Court in its judgment reported as Province of West Pakistan v. Salimullah P L D 1966 S C 547.

‑‑‑S. 18‑‑Punjab Town Improvement Act (IV of 1922), Ss.58, 59, 60 & 66‑‑Reference for determination of compensation‑‑Competency of‑ Jurisdiction of Senior Civil Judge‑‑Non‑establishment of Tribunal‑‑Effect of‑‑Award of additional compensation for compulsory acquisition‑‑In order to oust jurisdiction of Senior Civil Judge it had to be demonstrated by appellants that Tribunal was established and was functioning‑‑In absence of such Tribunal adjudication by Senior Civil Judge was competent.

‑‑‑Ss. 58, 59, 60 & 66 [as amended by Punjab Town Improvement (Amendment) Act, 1952 (II of 1953)]‑‑Government of India Act, 1935, S. 299(2)‑‑Vires of Act (II of 1953)‑‑Interpretation of statute‑ Supreme Court having upheld view of High Court declaring Act (II of 1953) ultra vires, decision of High Court saving provisions of para. 10(2) of Schedule to Act (IV of 1922) in so far as it related to acquisition made under Act even on strength of Act II of 1953, could not hold field.‑‑[Interpretation of statutes].

Province of West Pakistan v . Salimullah P L D 1966 S C 547 ref.

M. Salim Ullah and others v. Province of West Pakistan and another P L D 1960 Lah. 450 approved.

Land Acquisition Collector v. Abdul Aziz and others P L D 1965 Lah. 327 overruled.

‑‑‑S. 23(2)‑‑Punjab Town Improvement Act (IV of 1922), Sched. para. 10(2)‑‑Government of India Act, 1935, S. 299(2) & (4)‑‑Validity of enactment‑‑Compulsory acquisition of land‑‑Denial of additional compensation for‑‑Provisions of para. 10(2) of Schedule had validity and had effect of competently amending subsection (2) of S. 23 of Act (I of 1894)‑‑Acquisition proceedings having been taken under Act as originally framed, denial of compensation of compulsory acquisition was not violation of any provision and was rightly enforced by High Court‑ Appeal dismissed.

Muhammad Ashraf and others v. Province of West Pakistan 1985 S C M R 707 distinguished.

Laqa Haider Zaidi, Advocate Supreme Court with S. Abdi Nawaz, Advocate‑on‑Record for Appellant.

A. Rahim Khan, Advocate Supreme Court with Rana Maqbool A. Qadri, Advocate‑on‑Record for Respondent No. 1.

Respondent No.. 2 : Ex parte

Ch. Khalilur Rehman, Senior Advocate Supreme Court for Appellants.

Date of hearing: 10th November, 1985.

Leave to appeal was granted to examine, inter alia, whether a Tribunal and not Senior Civil Judge had exclusive jurisdiction to dispose of a reference under section 18 of the Land Acquisition Act, 1894 read with sections 58 and 59 of the Punjab Town Improvement Act, 1922 (hereinafter referred to as the Act) and whether denial to the appellant of fifteen per cent additional compensation for compulsory acquisition of land, was in violation of the law laid down by this Court in Province of West Pakistan v. Salimullah P L D 1966 SC 547.

2. Land measuring 83 Acres 7 Kanals was required by the Multan Improvement Trust under the act for the purposes of establishing a middle class housing colony which later came to be known as Shamshabad Colony. Out of the land required 21 Kanals 7 Marlas was owned by Sheikh Manzoor Hussain, the predecessor‑in‑interest of the appellant. The notice under section 36 of the Act were published in the newspapers and the Punjab Government Gazette during December, 1951 and January, 1952. This scheme was in due course sanctioned by the Punjab Government under sections 41 and 42 of the Act, vide Punjab Gazette Notification, dated 25‑5‑1953. Out of‑ the land to be acquired 20 Acres 6 Kanals 10 Marlas was situated in Taraf Mubarak Awal and the remaining 63 Acres 1 Kanal 17 Marlas in Taraf Mubarak Doem both forming one Mauza or village known as Taraf Mubarak. Out of the land acquired 57 Acres 5 Kanals and 4 Marlas was evacuee property.

3. The Collector by an Award, dated 4‑5‑1961 adjudged compensation due to Sheikh Manzoor Hussain at the rate of Rs.5,120 per Acre. The average price worked out by the Collector for Taraf Mubarak Awal was Rs.11,150‑13‑4 per Acre while the average price per Acre in Taraf Mubarak Doem was Rs.5,120. As the land of Sheikh Manzoor Hussain was in the latter estate he was allowed compensation at the rate of Rs.5,120 per Acre.

4. Shiekh Manzoor Hussain preferred a reference under section 18 of the Land Acquisition Act for "correct settlement of the entire acquired land" and for "correct calculation of compensation" and for "correct delivery of the compensation money".

5. This reference under section 18 of the Land Acquisition Act came up for disposal before the Senior Civil Judge, Lyallpur as it then was called, who enjoyed the powers of a District Court for the purposes of reference under section 18 of the Land Acquisition Act. The following issues were framed by the Senior Civil Judge on the controversy raised by this reference and twelve others concerning the same acquisition proceedings:‑

(1) Have the petitioner accepted the award; if so, what is the effect

(2) Is the reference not according to law

(3) Whether the objections have not been filed in time

(4) What is the market price of the property acquired by the Improvement Trust

(5) Relief "

6. The learned Senior Civil Judge appointed a Local Commissioner (Mr. A.M. Ahsan, Advocate) who found the oral evidence led before him of little value and recorded his conclusion in the following words:‑

"According to the Award the average price of land situated in village Taraf Mubarak Awal at the relevant time was Rs.11,150‑13‑4. I have inspected the spot and find that the whole of the land situated in both the villages form a compact block. The quality of land in both the villages is good and its vicinity to the town and all other attending circumstances are quite similar. In my opinion the market price of the whole of the land acquired by the Improvement Trust in both the villages at the time of acquisition was Rs.11,150‑13‑4 and the petitioners are entitled to compensation at this rate. I may make it clear that the compensation awarded by the Land Acquisition Collector, for houses, wells, etc. will be over and above the market price of land."

7. The learned Senior Civil Judge disposed of the reference by holding that the reference was proper, competent and in time. As regards the main issue with regard to the market value of the property, the learned Senior Civil Judge rejected the report of the Local Commissioner as well as the assessment of the Collector and came to his independent conclusion by working out an average of the two estates as would appear from his following conclusion:‑

"In my view the average price should be calculated from the average price of both these villages to apply a uniform rate for payment of the compensation and in my view it will be proper if the average price is worked out from the average market prices of both of those villages. It is worked out as under:‑

Average market price of village Taraf

Mubarak Awal per Acre Rs.11,150.83

Average market price of village Taraf

Mubarak Doem per Acre . Rs.5,120.00

_____________

Total

Rs.16,270.83

_____________

Average price per Acre comes to Rs.8,135.00

In my view the compensation of the land acquired at the rate of Rs.8,135 per Acre is quite adequate."

8. The learned Senior Civil Judge also allowed fifteen per cent additional compensation for compulsory acquisition by holding as follows:‑

"I find that the petitioners are entitled to compensation of the land acquired from them at the rate of Rs.8,135 per Acre instead of Rs.5,120 per Acre. The petitioners are also entitled to 15 per cent on market value for compulsory acquisition which has not been granted to them. P L D 1966 S C 547 has laid down that the provisions of Punjab Town Improvement Amendment Act II of 1953 providing for non‑payment of 15 per cent on the market value is ultra vires."

9. Against such a disposal of the reference as filed before the Collector 21 Regular First Appeals were filed twelve by the Multan Improvement Trust and nine by the affected landowners and they all were disposed of by the impugned judgment of the Lahore High Court.

After consideration of the relevant facts, the High Court came to the conclusion that not 10th of October, 1951 when the scheme for development was prepared by the Improvement Trust but December, 1951 when notices under section 36 were published was the relevant time for determining the market value of the land. It determined the market value at Rs.55 per Marla or Rs.8,800 per Acre giving a marginal benefit to the landowners in respect of enhanced compensation. However, the High Court denied the fifteen per cent additional compensation for compulsory acquisition of the land by making detailed observations as follows: ‑

"In this connection M. Salim Ullah and others v. Province of, West Pakistan and another P L D 1960 Lah. 450 cited before us is distinguishable. The facts in that case were that during the course of the acquisition proceedings initiated under the Land Acquisition Act the Land Acquisition Collector had invoked the application of subsection (3) of section 66 of the Punjab Improvement Act, added by the Punjab Town Improvement (Amendment) Act, 1953 for the acquisition of land for the Satellite Town and, according to the use to which the land was put at the time of the issuance of the notification under section 4, had assessed to market value and disallowed the claim of the land owners for 15 on the market value as compulsory acquisition allowance. The landowners challenged the validity of the award by means of a writ petition against it in the High Court of West Pakistan. The High Court found that the Punjab Improvement (Amendment) Act II of 1953 to the extent it made applicable clause 10 of the Schedule to the main Act to acquisition of land for Satellite Town was ultra vires of subsection (2) of section 299 of the Government of India Act and that compensation for the land acquired in the case must, therefore, be assessed in accordance with the provisions of the main Act. At the same time the Court significantly observed; clause 10 of the Schedule to the Punjab Town Improvement Act, 1922, violates the principles of compensation enunciated in section 299 of the Government of India Act, 1935 and would have been bad law if it had not been law in force at the date of the passing of Government of India Act, 1935 and, therefore, protected by subsection (4) of section 299 thereof. On appeal against this decision the Supreme Court of Pakistan in Province of West Pakistan and another v . Salim Ullah and others PLD 1966 S C 547 upheld the view that the Punjab Town Improvement (Amendment) Act II of 1953 to the extent it applied clause 10 of the Schedule to the Punjab Town Improvement Act, 1922 to the main Land Acquisition Act for the acquisition of land for setting up of Satellite Towns was ultra vires of subsection (2) of section 299 of the Government of India Act and that the compensation for the land acquired in the case must, therefore, be assessed in accordance with the provisions of the main Act. However, in the meantime a Division Bench of the High Court of West Pakistan in Land Acquisition Collector v. Abdul Aziz and others P L D 1965 Lah. 327 dis tinguished the case of M. Salim Ullah and others v. Province of West Pakistan and another PLD 1960 Lah. 450 and was of the opinion that clause 2 of paragraph 10 of the Schedule to the Punjab Town Improvement Act made applicable for the purposes of setting up of satellite towns by virtue of Punjab Improvement (Amendment) Act II of 1953 could not be regarded as ultra vires of section 299 of the Government of India Act, 1935. But whatever the position, we are clear in our mind that all the amendments made by virtue of section 59 read with the Schedule to the Punjab Town Improvement Act, 1932 in section 23 of the Land Acquisition Act, 1894 were protected as the existing law by virtue of Article 225 of the late Constitution of the Islamic Republic of Pakistan, 1962. These provisions have been continued in force up‑to‑date. In the circumstances under clause 2 of paragraph 10 of the Schedule to the Punjab Town Improvement Act, 1922 the landowners are not at all entitled to the compulsory acquisition allowance for the acquisition of these lands in dispute for the purposes of the Trust."

10. After the leave to appeal was granted in this case Sh. Manzoor Hussain died. His legal representatives, two daughters and a widow have been brought on record. There is also a claim made by one of the daughters brought on record, namely, Mst. Nawazish Fatima that the deceased Manzoor Hussain was a Shia by faith and had made a will exclusively in her favour with' regard to the enhanced compensation if any adjudged due to him for the acquisition of disputed land. The other two legal heirs of the deceased appellant, his widow and the other daughter have admitted this claim. Therefore, any relief that is to be granted in view of such admissions by these would have to be of avail to Mst. Nawazish Fatima alone.

11. There was before the High Court another appellant Syed Hassan Jahanian Shah, who had failed in the High Court, his appeal having been disposed of by the same consolidated judgment impugned before us. He also, it appears, died and his four sons filed in these proceedings before us an application (Civil Miscellaneous Petition No 39 of 1984). This application was filed on 2‑4‑1973 and it has been prayed that:‑

"In case the appeal is allowed the decision of this Honourable Court is likely to affect the rights of the present applicants. Moreover, this Honourable Court has power under Order XLIX, rule 5 to grant relief to any party to the proceedings. It is, therefore, in the interest of justice that the present applications are allowed to be impleaded as party in the Civil Petition for Special Leave to Appeal No. 14 of 1972.

It is, therefore, humbly prayed that the applicants be impleaded as party to the Petition for Special leave to Appeal No. 14 of 1972 titled as Sheikh Manzoor Hussain v. The Multan Improvement Trust Multan and another."

12. Ch. Khalil‑ur‑Rehman, Advocate, has appeared in this application and sought either by formally impleading his clients as party in this appeal or otherwise, to avail of the benefit, if any, arising out of the decision of the appeal of Sheikh Manzoor Hussain".

13. The learned counsel representing Sh. Manzoor Hussain, and after him his legal representatives, Mr. Laqa Haider, Advocate, pointed out that the two legal points on which leave to appeal was expressly granted stand decided by this Court in the case of Muhammad Ashraf and others v. Province of West Pakistan 1985 S G M R 707 wherein the question whether a reference to the Senior Civil Judge was competent in the absence of the establishment of a Tribunal under the Act was determined against him while the main issue of denial of fifteen per cent additional compensation for compulsory acquisition under Para. 10(2) of the Schedule to the Act was decided in his favour. In consequence and following that decision, the additional compensation should be made available to the appellants particularly to the one in whose favour the will has been made and is supported by the other legal representatives of Sheikh Manzoor Hussain.

14. So far as the jurisdiction of the Senior Civil Judge as a District Court under section 18 of the Land Acquisition Act read with sections 58 and 60 of the Act is concerned, it is clear that this legal objection was not taken at any earlier stage and has not, therefore, been dealt with. However, the factual basis for it is not that a tribunal existed or even if it did not exist, it alone had the jurisdiction. Section 66, subsection (2) of the Act specifically provides that "if the Provincial Government does not constitute a tribunal in accordance with clause (b) of subsection (1), all reference to the tribunal in the schedule shall be construed as referring to the Court". In order to oust the jurisdiction of the Senior Civil Judge, it had to be demonstrated by the appellants that in fact a tribunal as required under section 60 of the Act was established and was functioning. That being not the case I and never to have been the case section 66, subsection (2) will govern the situation and as the Senior Civil Judge enjoyed the powers of District Court for the purposes of dealing with references under section 18 of the Land Acquisition Act, the adjudication by him was competent.

15. As regards the second legal point, it has to be noted that in the case of Salimullah, the High Court in its judgment P L D 1960 Lah. 450 examined the vires of Punjab Act 11 of 1953 whereby land acquired for establishing Satellite Towns in Punjab without paying compulsory, acquisition charges was held to be ultra vires the powers of legislature so far as non‑application of subsection (2) of section 23 of the Land Acquisition Act on the strength of sub‑para. (2) of para. 10 of the Schedule to the Act was concerned. This was in view of section 299, subsection (2) of the Government of India Act. This Court on appeal upheld that view. In Collector v. Abdul Aziz P L D 1965 Lah. 327 the Lahore High Court had saved the provisions of para. 10(2) of the Schedule to the Act in so far as it related to acquisition made under the act even on the strength of Act II of 1953. This Court having subsequently upheld that view of the High Court in Salimullah's case declaring Act II of 19,1.3 ultra vires the decision in the case of Abdul Aziz on the question of law cannot hold the field.

16. Para. 10, sub‑para. (2) of the Act as originally framed provided as follows:‑

"(2) The full-stop at the end of subsection (2) of section 23 of the said Act shall be deemed to be changed to a colon and the following proviso shall be deemed to be added:‑

"Provided that this subsection shall not apply to any land acquired under the Punjab Town Improvement Act, 1922."

The only amendment made in this sub‑para. was by West Pakistan Ordinance XVIII of 1962 wherein the word "Punjab" occurring immediately before "Town Improvement Act, 1922" was omitted.

17. Subsection (2) of section 293 of the Government of India Act, 1935 provided that:‑

"(2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking or any interest in or in any company owning, any commercial or industrial undertaking, unless the law provides for the compensation of the property acquired and either fixes the amount of compensation, or specifies the principles on which, and the manner in which, it is to be determined."

18. Subsection (4) of section 299 provided that "nothing in this section shall affect the provisions of any law in force at the date on the passing of this Act".

It is the provision of subsection (4) of Government of India Act (section 299) which protects para. l0, sub‑para. (2) of the Schedule to the Act and even if there be any conflict it could not be declared ultra vires the powers of the Legislature as the test of section 299 was not available in view of subsection (4) of section 299.

19. The position with regard to Punjab Act II of 1953 was different. It did not enjoy the protection of subsection (4) of section 299 of the Government of India Act. It was a law made subsequent to the enforcement of Government of India Act, 1935 and had to conform to the requirements of section 299 which was found lacking. In the case of Muhammad Ashraf it appears that this aspect of the case was not brought to notice. In the circumstances, the provisions of sub‑para., (2) of para. 10 of the Schedule to the Act had the validity and had the effect of competently amending subsection (2) of section 23 of the Land Acquisition Act and as in the present case the acquisition proceedings had been taken under the Act as originally framed the denial of compensation of compulsory acquisition was not violative of any provision and had to be enforced and was rightly enforced by the High Court.

20. We find no merit in the appeal and the same is dismissed. The parties are left to bear their own costs. The application filed by the heirs of Syed Hussain Jahanian Shah also fails and is dismissed.

M. I. Appeal dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.