' MUHAMMAD ALI MAZHAR J.--- This constitutional petition has been filed by the petitioners for seeking directions against the respondents No,2 & 3 to pay the compensation/award amount to the petitioners which 'they have failed to pay.
2. Concisely, the facts of the case are that the petitioners are the owners of Survey Nos. 91/2 (0-16), 92/1 (0-03), 92/2 (0-27), 92/3 (011), 93/1 (0-12), 93/2 (0-20), 93/3 (0-05), 93/4 (0-12), 94/5 (0-15), 96/6 (0-35), 95/4 (0-26) admeasuring 04-22 acres, situated in deh Pano Khaslo, Taluka Ghotki. It is further contended that in the month of March, 1993, the respondents Nos.1 and 2 acquired the aforesaid land for the construction of additional carriageway Sarhad bypass by the respondent No,3 (National Highway Authority of Pakistan) and possession of land was taken over in the year 1993 in view of special powers conferred upon the authority under section 17 of the Land Acquisition Act to deal the cases of urgency. It is further stated, that Notifications under sections 4 and 6 were accordingly issued in official Gazette and after complying with all codal formalities, an award was delivered on 10-7-2007 under section 11 of the Land Acquisition Act and consequently, the said award was filed in the office of respondent No,2 but when the petitioners approached for receiving award money, respondent No,2 replied that funds are not available in his account and letter has been forwarded to the respondent No,4 for release of funds but in spite of all efforts, no payment has been made to the petitioners so far.
3. The respondent No,2, DDO (Revenue) filed brief history of the case in which he admitted that the land in question was acquired by NHA in the year 1993 for construction of additional carriageway.
He further submitted that main award of the project was passed on 19-11-1995 but B-Form of the above land was not received from Survey Department, hence land could not be included in the main award and after receiving B-Form of the land in question award was passed in connection with aforesaid land on. 10-7-2007. The Deputy Director (Maintenance) NHA, Sukkur was not agreed with the award and reported vide letter dated 15-8-2007 that the award is against provisions of Land Acquisition Act, 1894 and in reply to this letter, the Deputy Director (Maintenance), NHA was advised to file an appeal before proper forum against the award passed by the respondent No,2. In separate comments, respondent No,2 has reiterated the similar facts.
4. The respondents Nos.3 and 4 have also filed their comments in which they admitted that they had acquired land in question along with other land with possession for construction of additional carriageway from Sukkur and the initial award was passed on 19-11-1995, but the land in question was not included in the award as B-Form in respect of above land was not received by the Land Acquisition Officer from Survey Superintendent. However, vide award dated 10-7-2007, respondent No,2 illegally and exorbitantly fixed very high rate and failed to consider the price of land prevailing in the area at the time of acquiring possession in the year 1993, but the price was fixed in the subsequent award on the basis of price of land prevailing in the year 2007 when the second award was delivered. It is further contended that at the time of acquiring land in the year 1993, price of land was Rs,70,000/- to Rs,80,000/- per acre which was also confirmed by the Assistant Mukhtiarkar (Revenue) and the Sub-Registrar. It is further stated in the comments that second award dated 10-7-2007 was passed by Land Acquisition Officer after lapse of 14 years of acquisition, therefore, respondents Nos.3 and 4 cannot be held liable for the payment' of exorbitant price of land. Since the award was not accepted, respondent No,4 challenged the second award vide letter dated 10-7-2007 but respondent No,2 failed to exercise his powers under section 18 of the Land Acquisition Act and simply advised the respondent No,4 to file an appeal.
5. By consent of all the learned counsel, the matter was heard for final disposal at katacha peshi stage. The learned counsel for the petitioners argued that valuation of property in question has already been resolved and the respondent No,2 in the award has already considered the price of land properly and after due deliberation award was delivered. He further argued that the respondents are using delaying tactics for non-payment of award money on different pretexts. It was further averred that after delivering the award, respondents have not challenged the same in Court of law nor filed any appeal, therefore, price fixed in the award has attained finality and same cannot be reopened and he finally argued that since there is no alternate remedy available to the petitioners for the implementation of award, therefore, petitioners have opted to prefer this petition in this court for the recovery of compensation and the execution of award.
6. Conversely, the learned counsel for the respondents Nos. 3 and 4 argued that it is an admitted fact that the land in question was not included in the award dated 19-11-1995 due to non- availability of B-Form of land in question and thereafter respondent No,2 passed the award after delay of at least 14 years from the date of land acquisition and in spite of deciding the Price of land prevailing in the year 1993, an exorbitant amount has been fixed which is in contravention of provisions of Land Acquisition Act. Learned counsel further argued that it is also a matter of record that being dissatisfied with the award dated 10-7-2007, respondent No,4 forwarded a letter in which serious exceptions were shown against the award in question but respondent No,2 instead of considering the objections raised in the letter and to deal the objections under the provisions of section 18 of the Land Acquisition Act, he simply ignored the objections and vide letter dated 21-8- 2007, informed the respondent No,4 to file appeal against the award before the proper forum under the provisions of Land Acquisition Act.
7. The learned A.A.-G. Argued that notification under section 4 of the Land Acquisition Act was published in official Gazette on 20-2-2007, and the Notification under section 6 of the Land Acquisition Act was gazetted on 9-3-2007. He further argued that National Highway Authority failed to deposit the amount of compensation, therefore, amount was not paid. A letter was issued to them but they did not release funds for onward payment. He further argued that possession of the acquired land was handed over to NHA in the year 1993.
8. The main thrust of the arguments of learned counsel appearing for the respondents Nos.3 and 4 is that a letter was written to the DDO (Revenue) on 15-8-2007 in which it was stated that the market rate of the land in question in the year 1993 was Rs,70,000 or 80,000/- per acre, therefore, rate should have been fixed on the basis of price prevailing in the year 1993 when the land was handed over.
9. In order to appreciate the contention raised by learned counsel, it would be expedient to reproduce Section 18 of the Land Acquisition Act as under:--- "18. Reference to Court.--- (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken: ' Provided that every such application shall be made-
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award ;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, subsection (2) or within six months from the date of the Collector's award, whichever period shall first expire".
10. It is clear from the above provision that any person who has not accepted the award, may by written application to the Collector require that the matter be referred to for the determination of Court on the basis of objection in relation to measurement of land, amount of compensation, the person to whom it payable or apportionment of compensation among the person entrusted. It is further provided in subsection (2) that the application shall state the grounds on which objection to the award is taken. Firstly, let it be clarified that in the letter dated 15-8-2007, purported to have been sent under section 18 simply raised a ground that the amount of land should have been determined on the basis of date of compensation of land in the year 1993. In this very letter it is nowhere stated or requested by the Deputy Director, NHA, Sukkur for making any reference by the DDO to the Court for determination of any objection and instead of making clear statement or request, in the end of letter, it was simply stated that the letter may be kept on record.
11. Under section 23 of the Land Acquisition Act, it is provided that at the time of determining the amount of compensation, the foremost consideration would be the value of land on the date of publication of the Notification under section 4, subsection (1) of the Land Acquisition Act. Since the Notification under section 4 of the land in question was issued in the month of February, 2007, therefore, DDO who delivered the award could have easily taken into consideration the price of land prevailing at the time of issuing Notification, but the award shows that he determined Rs,2,45,000/- per acre on the basis of rate of land fixed during year 2002 in the same project. The DDO in his award also stated that Assistant Mukhtiarkar Revenue, Ghotki and representative of Sub-Registrar informed that no doubt price of land was not above one lac in the year 1993 but at present price of land is very high and the present value of land in Deh Pano Khaslo and adjoining Dehs in between Rs,5 lacs to 7 lacs per acre. It shows from the award that after taking into consideration all material aspects in the matter, the rate of land was fixed by the DDO in his award, therefore, objections raised by the respondents Nos.3 and 4 in their letter dated 15-8-2007 that rate should have been fixed as prevailing in the year 1993 are misconceived as there was no hindrances or obstructions for the award making authority to consider the rate on the basis of date when Notification under section 4 was issued, but instead of allowing compensation on that rate, he after due deliberation and hearing the parties fixed rate at Rs,2,45,000/- per acre, to which petitioners have not challenged in any Court of law and they accepted the award without any objection or reservation. The learned counsel for the respondents Nos.3 and 4 referred to 2001 SCMR 794 and PLD 2002 SC 84, but in both cases it was held that crucial factor for determination of market value of the acquired land would be the date on which the Notification under section 4 subsection (1) of the Land Acquisition Act 1894 was issued. The case-law relied upon by the learned counsel are not helpful to his case, but in fact this gives a right to the petitioners to, claim amount of compensation of the land in question on the basis of Notification which was issued in the year 2007, but they have accepted the award without any objection or protest and it is highly unjustified that instead of making payment by the acquiring agency they are delaying the matter and depriving the petitioners from their lawful amount of compensation.
12. Another important aspect which cannot be ignored that the respondents Nos.3 and 4 have not challenged the award in any court of law. First of all neither any case of reference was made out nor any request for reference was made. Notwithstanding, if reference on their letter was not made by the DDO, they could have promptly initiated appropriate legal proceedings for seeking directions against him but no proceedings were initiated by them and it seems from their conduct that they were waiting to take this plea at belated stage when the petitioners will approach this court as a last resort for execution/implementation of award. This is all delaying tactics to frustrate the legitimate claim of the petitioners who handed over the possession of land in good faith on the hopes that adequate compensation will be paid to them swiftly in accordance with law.
13. At this point in time, we would like to refer to a judgment reported in PLD 2010 Supreme Court 719 (Land Acquisition Collector v. Mst. Iqbal Begum), in which, the honorable Supreme Court held that potentiality of land should not be determined merely at the time of issuance of notification under S.4 of the Land Acquisition Act, 1894, but it should also be with reference to the use to which land is reasonably capable of being put in future. Potentiality of land cannot be determined without examining its future prospects, therefore, compensation cannot be based merely on basis of "past sales". Object of Land Acquisition Act, 1894 was to provide complete indemnity to owner and not to allow acquisition of land without proper and adequate compensation. Gold be given for gold and not copper for gold. To determine compensation, the court must ascertain the value on the date of notification, considering various factors including nature and location of acquired land and sale price of adjoining lands. In assessing market value of land, its location, potentiality and price evidence by transactions of similar land at the time of notification are factors, which should be kept in view. One year's average of sales taking place before publication of notification under section 4 Land Acquisition Act, 1894 of similar land is'merely one of the modes for ascertaining market value and is not an absolute yardstick for assessment of compensation. Moreover, status of acquired. Land, its potentialities and its likelihood of development and improvement would be necessary factors for determining rate of compensation. Market value would mean what a willing purchaser would have paid for acquired land. In another judgment reported in PLD 2009 Supreme Court 16 (Province of Punjab v. Sh. Hassan All and others), criteria for determination of compensation of land has been laid down in section 23 of the Land Acquisition Act and it includes, inter alia, the market value of the land on the date of publication of notification under section 4(1) of the Act, the damage sustained by the persons interested by reasons of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession, or by reasons of severing such land from his other land, or by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings, or if a person interested is compelled to change his residence or place of business, and it, also includes the damages from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land, etc., meaning thereby that it is cumulative effect of all the factors involved and compensation cannot be assessed solely on the basis of the entries in the mutation effected at the relevant time.
14. We have no ambiguity in our mind to hold that the respondent No,3 without any lawful reason and or justification is delaying the payment and since 10-7-2007, the petitioners are deprived from their legitimate right of compensation. No concrete or cogent reason has been assigned which might give good reason for non-implementing the award. Article 199 of the Constitution casts an obligation upon this court to act in aid of law, protect the rights of citizens within the framework of the Constitution against infringement of law and Constitution by the Executive Authorities, strike a rational compromise and a fair balance between the rights of citizens and actions of State functionaries, claimed to be in the larger interest of Society. Whenever the executive acts in violation of law, an appropriate order can be granted which can relieve the citizen of the effects of illegal action. Where a Statutory functionary acts mala fide or in a partial, unjust and oppressive manner, this court in exercise of its Constitutional jurisdiction has ample power to grant relief to the aggrieved party. Reference can be made to PLD 2004 SC 271.
15. As a result of above discussion, this petition is allowed. The respondent No,3 is directed to make payment of compensation to the petitioners within a period of one month in terms of award dated 10-7-2007.