' M. JAVED BUTTAR, J.---These appeals are directed against the judgment dated 22.5.2001 passed by a learned Division Bench of Peshawar High Court, Circuit Bench D.I.Khan, whereby RFAs Nos. 5, 6,'
8 and 9 of 2000 instituted by the appellants were partly allowed and the price of the acquired land was fixed as Rs: 50,000/- per kanal alongwith 15%, compulsory acquisition charges and 61/2% simple interest. However, there was no order as to costs.
2. Relevant facts are that vide Award No, 54, dated 26.6.1993- passed by Land Acquisition Collector, the land in dispute measuring 182 kanals, 7 marlas situated in village Kotala Saidan Tehsil & District D.I.Khan was acquired for the henefit,of WAPDA for the construction of Distributory No, 6 CRBC Project at the rate of Rs, 8,000/- per kanal. Notification under section 4 of the Land' Acquisition Act, 1894 was published on 17.4.1988. Notification under Section 17 of the said Act was issued on 23.11:198,8. The above price was fixed alongwith 15% compulsory acquisition charges, 5% severance charges and 6% simple interest from the date of taking over possession fill the date of payment of compensation.
3. The petition of respondents/land owner's for the enhancement of the compensation through a reference under section 18 of the Land Acquisition Act to the Land Acquisition Collector was forwarded to , District Judge D.I.Khan which was transferred to District Judge/Judge Land'
Acquisition, Tank Camp at D.I.Khan who after regular trial vide his judgment dated 7.3.1994 enhanced the rate of compensation to Rs, 22,000/- per kanal alongwith 15% compulsory acquisition charges plus 6% compound interest on the difference from the date of possession till the payment of amount. Being aggrieved thereby, both the parties filed Regular First Appeal in Peshawar High Court Bench D.I.Khan and a learned Division Bench of the said Court at D.I.Khaii Bench vide judgment dated 6.3.1998 remanded the case to learned Referee Court for a fresh decision with the direction to appoint a Local Commissioner to ascertain the market value of the land in dispute at the time of the announcement of the award of the Land Acquisition Collector. On remand Mr. Ghulam Hur. Khan, Advocate was appointed as the local commissioner who after summoning the parties and spot inspection submitted his report to the Referee Judge and the Referee Judge, this time senior Civil Judge, D.I.Khan vide his judgment dated 2.12.1999 fixed the price of the acquired land at the rate of Rs, 68,000/- per kanal alongwith 15% compulsory acquisition charges and 6% simple interest on the difference from the date of possession of the acquired land till the recovery of amount minus what the land owners had received. The appellants assailed the same through RFAs Nos. 5, 6, 8 and 9 of 2000 which resulted in the judgment impugned before us.
4. We have heard learned counsel for the parties and have also seen the available record with their able assistance.
5. It is submitted by learned counsel for the appellants that the Referee Judge determined the market rate of the acquired land merely on the basis of the report of the local commissioner who had no criteria or evidence before him to come to the conclusion that the market rate of the said land was Rs, 68,0001- per kanal, that similarly learned High Court also had no evidence before it to conclude that the market rate was Rs, 50,000/- per kanal, that the acquired land was shown agricultural in nature whereas the rate awarded to land owners by learned High Court was that of urban land and that against the same award the learned High Court decided RFA No, 3 of 1995 on 15.4,1999, the price of the land was fixed at the rate-of Rs, 18,000/- per kanal on the basis of "Osat Yaksala" (one year average) and the same should have been the basis for fixing price of the land in dispute.
6. Learned counsel for the respondents/land owners while vehemently opposing the appeals have firstly taken preliminary objection to the maintainability of the present appeals and have submitted that beneficiaries of the acquired land have no right and locus standi to either file reference against the award of compensation or appeal against the judgment arising out of the reference under section 18 of the Land Acquisition Act, 1894 or any appeal and the same can be filed only by the land owners or the Provincial Government through Collector. Reliance in this regard has been placed on BP Pakistan Exploration and Production through Attorney v. Sher Ali Khawaja and another (PLD 2008 SC 400), Defence Department of Pakistan through Secretary Ministry of Defence v. Province of Punjab and another (2006 SCM R 402), Pakistan through Military Estate Officer, Kharian Cantt. And another v. Abdul Hayee Khan through Legal Heirs and 5 others (PLD 1995 SC 418), Iftikhar Hussain. Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (1991 SCM R 2193) and Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad and others (PLD 1987 SC 485).
' In these judgments, With reference to section 18 and section 50(2) of Land Acquisition Act (I of 1894), it has been held that the beneficiaries of the acquired land have no right to challenge the compensation given to the deprived owners of the land by the competent Court and same could be assailed by the affected land owners or the concerned Provincial Government through Collector and the Federal Government is not authorized to file appeal against the decision of competent Court relating to amount of compensation for the acquired land and the award made by the Land Acquisition Collector becomes final so far as local authority or company is concerned and there is no alternative for such authority or company but to give effect to it ' In answer to above-said preliminary objection, learned counsel for the appellants has referred to a judgment dated 18.2.1991 passed by learned Shariat Appellate Bench of Supreme Court of Pakistan in Shariat Appeal No, 7 of 1989 titled Muhammad Khan v. Jamil-ur-Rehman and others in which the declaration and directions given by the learned Federal Shariat Court in its judgment dated 30.3.1989 in Shariat Petition No, 6/1 of 1988 were upheld and Shariat Appeal No, 7 of 1989 was dismissed.
' The declaration and directions of the learned Federal Shariat Court were as under:-- ' "For the aforesaid reasons we declare that omission to give right of making reference, filing cross- objections and appeal to the Federal. Government or to the department of the Federal Government or of the Provincial Government or a company or a local authority for whose benefit land is acquired in Sections 18(3) and (4), 22-A and 54 of the Land Acquisition Act, 1894 as well as depriving a company or a local authority of the right of appeal in Proviso to Section 50(2) of the Act are repugnant to the Injunctions of Islam".
7. Learned Shariat Appellate Bench of Supreme Court of Pakistan while upholding the declaration and directions (reproduced above) of the learned Federal Shariat Court in its abovesaid judgment dated 30.3.1989 through the judgment dated 18.2.1991 in Shariat Appeal No, 7 of 1989, after referring to sections 1$, 22-A, 50 and 54 of the Land Acquisition Act, 1894 held as under:-- "6. A person who has not accepted the award has a right of reference to the Court under S. 18 of the Act. A reference under this section can be made only on the application of an interested person.
"The person interested", according to Section 3(b) of the Act, "includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interest in land if he is interested in an casement affecting the land".
By means of sub-section (3) of Section 18 of the Act, 'a Provincial Government has been authorized to refer the matter to the Court if it has not accepted the award. This section does not, provide any reference on behalf of the department of the Federal Goverment or the Provincial Government for which -the land has been acquired. In case a reference has been made by the Collector on the application of an interested person, a right has been granted to the Provincial Government or a local authority or a Company for which land is being acquired; by means of Section 22-A, to file a cross-objection to the objection made by any person interested, and the Court may reduce the amount awarded by the Collector. Under this section, the Provincial Govt. Has been authorized to file a cross-objection but no such right has been afforded to the Federal Govt. Or its department or department of the Provincial Govt. For which, land is being acquired. According to Section 50(2) of the Act, in any proceeding held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation provided that no such local authority or Company shall be entitled to demand a reference under Section 18. This section gives a right to appear in proceeding and adduce evidence before a Collector or Court for the purpose of determining the amount of compensation but a reference under Section 18 is barred by the same proviso. No such right has been granted to the Provincial Government or its department. Learned counsel for the appellant referred to Article 152 of the Constitution and submitted that a Provincial Government may file a cross-objection on behalf o the Federation and' therefore there is no necessity of any amendment as proposed by the Federal Shariat Court. This contention is devoid of force.
' Article 152 of the Constitution' only contemplates that the Federation may require the Province to acquire the land on its behalf, and at the expense of the Federation or, if the land belongs, to the Province, to transfer. It to the Federation on such terms as may be agreed. According to this Article, the. Federation may ask .a Province to acquire land on its behalf. The determination of the terms may be decided by an agreement between the Federation and the Province or in default of agreement, may .Be determined by an arbitrator appointed by, the Chief Justice of Pakistan. This Provision of the Constitution is not relevant to the determination of the controversy raised before the Federal Shariat Court. This Court in Pir Khan v. Military Estate Officer, (PLD 1987 SC 485) has held that "Section 50(2) of the Land Acquisition Act, 1894 expressly and in terms controls section 18 and takes away the right from the local authority or company for whom the land is being acquired to demand a reference under Section 18. According to sub-section (2) of section 50 a local authority or a company is only conferred the right to appear in proceedings before the Collector or the Court and adduce evidence for the purpose of determining the amount of compensation but a reference under section 18 by them is barred."
7. The grounds which weighed with the Federal Shariat Court in making the recommendation are cogent and sound. The amendments in the aforesaid provisions of the Act would make the law more consistent and equitable. It is against all cannons of principle and equity that the Provincial Govt. May have a right refer the matter to Court and file a cross-objection but the Federal Government and its department are not given such a right. It would amount to negation of justice and is repugnant to the Injunctions of Islam. The wisdom behind such amendments would be to give all the parties a fair opportunity to prove regarding the reasonable amount of compensation to be awarded. A party who has to pay the money from its own funds should have been given ,a chance to adduce evidence for the purpose of determining the amount of compensation. The proposed amendments would advance remedy to an aggrieved party. It would be fair and just to give a right to make a reference, file a cross-objection, lead evidence and file an appeal, to those parties who have been denied such a right under Sections 18, 22-A, 50 and 54 of the Land Acquisition Act."
' In view of what has been stated above, we see no force in this appeal. The same is dismissed.
Necessary amendments shall be made before 30th of Sept., 1991."
8. We have been informed that consequently a necessary amendment has been made in the Provinces of Sindh and Balochistan but no such .Amendment has been. Made in other Provinces.
Land Acquisition (Sindh Amendment) Ordinance, IV of 1992 was promulgated by the Governor of Sindh and gazetted on 7th July, 1992. In sub-section (3) of section 18 of the above Act for the words the Provincial Government", the words and commas "The Federal Government, the Provincial Government, a Company or a Local authority, as the case may be," were substituted.
Consequential amendments were also made in sections 20, 22A,' 31 and 50 of the above Act.
Similar amendments were made in the Province of Balochistan through Land Acquisition (Balochistan Amendment) Ordinance V of 2000 gazetted on 3rd October, 2000. However, the effect of Land Acquisition (Sindh Amendment) Ordinance IV of 1992 was considered by this Court in BP Pakistan Exploration and Production through Attorney v. Sher Ali Khawaja and another (PLD 2008 SC 400) and it was held that since the Ordinance had not been laid before the Provincial Assembly, therefore, it did not attain the status of an Act and stood repealed at the expiration of three months from its promulgation and thus lost its efficacy on 6.10.1992 as the life of the Ordinance under the Constitution was only 90 says.
9. As regard the judgments passed by this Court which have been relied upon by learned counsel for the respondents to contend that the present appeals are not maintainable, it may be mentioned that the above-said judgment dated 18.2.1991 passed by learned Shariat Appellate Bench of the Supreme Court of Pakistan in Shariat Appeal No, 7 of 1989 has not been reterred to and the effect of said judgment has not been considered.
' We may add here that Article 149 empowers the Federal Government to give directions to the Provincial Government so as to protect and advance its own executive authority in discharging its responsibilities under the Constitution and the laws, obliging thereby the Provincial Government to comply with such directions. Article 152 empowers the Federation to require the Province to acquire the land required by it at its expense. Article 173 of the Constitution provides that on such acquisition the land shall vest in the Federal Government. The Federal Government, in such cases has a direct interest in the property sought to be acquired, and the Federal Government necessarily becomes "person interested" as defined in section 3(b) of the Act. In Himalaya Tiles and Marble (P) Ltd. v. Francis Victor Coutinho (dead) by L.Rs, (AIR 1980 SC 1118), it was held by the Indian Supreme Court, with reference to Section 18 of the Land Acquisition Act (1894), that the definition of a 'person interested' given in Section 18 is an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or indirectly, interested either in the title to the land or in the quantum of compensation. Thus the definition of "person interested" in Section 18 must be construed so as to include a body, local authority, or a company for whose benefit the land is acquired and who is bound under an agreement to pay the compensation. This view accords with the principles of equity, justice and good conscience.
' If the above interpretation is followed the. Beneficiary A would be entitled to file a reference under section 18 and appeal under Section 54 of the Act.
10. In view of the above-mentioned, it is doubtful that respondents can successfully argue that the present appeals filed by the beneficiaries are incompetent. We have expressed doubt because we have not been assisted properly. In any case, in our opinion, for the reasons given below, these appeals are liable to be dismissed on merits, therefore, we are ,not going into the issue of maintainability of the present appeals and leave this question open for decision in future at some appropriate time in some appropriate case.
11. Learned Counsel for the respondents, on merits, have submitted that the Local Commissioner after hearing .Both the parties and after spot inspection and after holding a detailed inquiry, had correctly concluded that the market value of the land in dispute at the time of making of the award, was Rs, 68,000/- per kanal and since the land owners have not assailed the judgment impugned before us whereby the rate of compensation has been reduced from Rs, 68,000/- to Rs, 50,000/-, they would be satisfied if the same is kept intact. Learned counsel in this, regard have taken us through the report of the Local Commissioner and have further submitted that keeping in view the potential of the land in dispute, the price of land in dispute has been reasonably worked out by the learned High Court with some modification in the correctly worked out price by the Referee Judge. Reliance in this regard has been placed on Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another (1999 SCM R 1647) and Province of Punjab through Collector, Attock v. Engr. Jamil Ahmad' Malik and others (2000 SCMR 87Q).
12. We have given our anxious consideration to the entire facts and circumstances of the case. We have also noted that there is no allegation of mala fide on the part of the local Commissioner in regard to his report. He was appointed under the remand order passed by the High Court. We have also noticed that the land in dispute had the potential of urbanization because the neighbouring village Taiken had acquired the status of a Town and Dera Development Authority had already been established there at the time of announcement of the award, therefore, the land in dispute at the time of its acquisition had good potential of urbanization. Learned Judges of the High Court after taking into consideration the evidence available on the record and the entire circumstances of the case, correctly concluded that it was safe to fix Rs, 50,000/- per kanal as the market value of the land at the time of its acquisition which in our opinion, a potential buyer would have been willing to pay to a willing seller. As regards previous decision dated 15.4.1999 of the High Court in R.F.A. No, 3/1995, we have no information about the location and situation of subject land of said R.F.A. Except that it was part of same award, which is not sufficient.
' In view of the above-mentioned, we find no merit in these appeals which are dismissed with costs throughout. Miscellaneous applications (CMAs Nos. 917 to 920/09) moved by the respondents for setting aside the order of the ex-parte proceedings also stand disposed of.