Abid Aziz Sheikh, J.-This constitutional petition has been filed against order dated 08.2.2014 passed by respondent No.1, whereby application of the petitioner for allocation of alternate plot was declined.
2. Brief facts are that father of the petitioner namely Naseem Mumtaz (petitioners father) and his uncle namely Saleem Mumtaz were allotted exempted plots No.160,168,169 and 170 (measuring 04 kanal 24 sq.ft. each) in Shah Jamal Scheme, Lahore on 29.1.1981, in lieu of their land acquired by Lahore Development Authority (LDA) measuring 20 kanal 16 marla and 74 sq.ft. in Mouza Icchra, Lahore. On deposit of development charges of Rs.76909.47/, the exemption agreements regarding plot No.169,170 were executed by LDA with uncle of petition er namely Saleem Mumtaz and regarding plot No.168 with petitioners father. However, exemption of plot No.160 was withdrawn from petitioners father name and same was allotted to one Mst. Ameer-un-Nisa in compliance of this Court order in Civil Revision No.1344/1982.
Thereafter, petitioners father submitted several applications to LDA for allotment of alternative plot in lieu of plot No.160, however, the matter was not decided on one pretext or other. After death of petitioners father on 19.3.2011, the petitioner also filed applications dated 28.2.2012 and 14.5.2012 but no reply was given by LDA. The petitioner eventually filed writ petition No.5237/2013 before this Court in which, direction was issued on 05.3.2013 to LDA to decide application of the petitioner. Respondent No.1 in pursuance to this Court order decided the application of the petitioner, however, rejected the same through impugned order dated 08.2.2014. The petitioner being aggrieved has filed this constitutional petition.
3. Learned counsel for the petitioner submits that petitioners father property was acquired and in lieu thereof exempt plot No.160 (measuring 04 kanal 24 sq.ft.) at Shah Jamal Scheme was allotted, however , after its cancellation, no alternative plot has been given to the petitioner . Submits that petitioners father in his life time and now his legal heirs after his death are deprived of their fundamental right of property guaranteed under Article 23 and 24 of Constitution of Islamic Republic of Pakistan, 1973 (Constitution). He further submits that allotment was made in 1981 and after payment of development charges, vested right accrued in favour of the petitioner , therefore, any subsequent decision or amendment in law cannot be applied retrospectively so as to deprive the petitioner from his lawful right of allotment of alternative plot.
4. Learned counsel for the respondents submits that it is not disputed that petitioner fathe r was allotted exempt plot No.160 (measuring 04 kanal 24 sq.ft.) in Shah Jamal Scheme, Lahore, however , same was withdrawn vide letter No.342 dated 27.8.1990 from the name of father of the petitioner in compliance of order of this Court dated 13.2.1990 in Civil Revision No.1344/1982 and was allotted to one Mst. Ameer-un-Nisa. He submits that though petitioner father and now petitioner applied for alternative plot in lieu of plot No.160, however , same cannot be allotted due to non-availability of plots in Shah Jamal Scheme. He further submits that in any case, governing body of LDA in its meeting dated 25.6.2004 has revised exemption policy (revised policy) and instead of developed plots, allowed payment of cash compensation assessed by Land Acquisition Collector. He submits that Lahore Development Act of 1975 (Act) was also amended on 11.12.2013 and clauses 5 and 6 to Section 25-B was added, according to which, no alternative land or developed site will be allotted and only compensation in cash as is mentioned in award will be granted. He submits that in present case, as per award passed in year 1958, the value of land acquired was assessed at Rs.27680/, which can be given to the petitioner as cash compensation in lieu of plot No.160.
5. I have heard the arguments of learned counsel for the parties and perused the record.
6. Facts are not disputed according to which, petitioners father total property measuring 09 kanal 17 marla and 162 sq.ft. was acquired by LDA and against said land, plots No.160 and 168 (measuring 08 kanal 34 sq.ft.) were allotted as exempt plots vide allotment letter dated 29.1.1981 subject to payment of development charges. It is also not disputed that development charges of Rs.76909.47/- were deposited by petitioner 's father and petitioner 's uncle within time prescribed in 1981. Admittedly , thereafter , exempt plot No.160 (measuring 04 kanal 24 sq.ft.) was cancelled from the name of petitioners father and was allotted to one Mst. Ameer-un-Nisa. It is also not denied that petitioners father during his life time and after his death, petitioner is seeking allotment of alternate land in lieu of plot No.160, but same has not been allotted as yet nor any compensation has been paid. From the arguments of respondents as well as impugned order and parawise comments submitted, it is evident that respondents are not disputing claim of petitioner for allotment of alternative plot but their only defence is that at present, no vacant plot is available for allotment at Shah Jamal Scheme and further as per LDA revised policy dated 25.6.2004 and after amendment of section 25B of the Act on 11.12.2013, alternative plot cannot be allotted but only cash compensation of Rs.27680/- as per award in year 1958 can be paid.
7. I have carefully examined the above stanc e of the respondents and found it to be not only irrational and unreasonable but rather absurd. The right of property is guaranteed under Article 24 of the Constitution. The relevant sub-articles of Article 24 of the Constitution are reproduced hereunder:- Article 24. Protection of property rights:-
(1) No person shall be deprived of his property save in accordance with law .
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given".
8. There is no cavil with the proposition that right of property under Article 24 of the Constitution is not absolutely right and where a person is deprived of his property under the authority of law and according to the provisions of an enactment, he will have no ground for complaint. However , Article 24 ensures that person cannot be deprived of his private property except in accordance with law and on payment of compensation. The word compensation in Article, 24 of the Constitution, does not mean payment of any meagre and inadequate amount at the unbridled discretion of Public Functionaries. Where a person is to be deprived of his private property , the compensation must be fair and adequate keepi ng in view the market value of said property . In the present case, admittedly , petitioners father property measuring 09 kanal 17 marla 162 sq.ft. was acquired by LDA and in lieu thereof plot No.160 measuring 04 kanal and 24 sq.ft. at Shah Jamal Scheme was allotted but cancelled.
Now, any attempt by respondents to deprive the petitioner from allotment of alternative plot against plot No.160 or payment of inadequate and unfair compensation in lieu of alternative plot will not only be violative of Article 24 of the Constitution but will also offend Article 4 and 23 of the Constitution, which requires that every person shall be dealt with in accordance with law.
9. The argument of learned counsel for the respondents that as per LDA revised policy dated 24.6.2004 and amendment in section 25-B of Act on 11.12.2013, alternative plot cannot be given, is also mis-conceived. The revised policy dated 25.6.2004 and amended subsection 5 and 6 of section 25-B of the Act, are reproduced for convenience hereunder:- Revised Policy 25.6.2004 "The Authority has approved revision of exemption policy in the scheme acquired under Land Acquisition Act, 1894 and allowed payment of cash compensation only assessed by the Land Acquisition Collector under the law in his award. No developed plot shall be allowed in future in old scheme where land was acquired under Land Acquisition Act, 1894."
Subsection 5 and 6 of Section 25-B (5)-The Authority shall not provide alternate land or developed site in any scheme except the scheme for which the property was acquired.
(6)-Where provision of alternate land or developed site is part of a scheme but for any reasons, such land or developed site cannot be provided, the Authority shall pay compensation in cash at such rate as is mentioned in the award of the Collector".
The perusal of revised policy and amendment in law show that they are much later in time and cannot be applied retrospectively to deny the claim of alternative plot to petitioner . Right of the petitioner and his father was already established when their land was acquired and thereafter in 1981, exempt plot No.160 (measuring 04 kanal 24 sq.ft.) Shah Jamal Scheme was allotted on 29.1.1981 and its development charges were also paid. It is settled law that policy decisions by executives unless beneficial, cannot be applied retrospectively . It is also well settled principle of interpretation of statutes that in absence of stipulation to the contrary any change in law effecting substantive rights has to have prospective effect.
The revised policy and subsections 5 and 6 of section 25 B of the Act, if applied retrospectively to the case of the petitioner , they will not only divest, but also adversely affect vested right already accrued in favour of the petitioner and his father for allotment of alternative plot in lieu of exempt plot No.160 at Shah Jamal Scheme, Lahore.
10. The doctrine of law that change in substantive law shall have prospective application unless by express legislation or by necessary intendments or implication, such law has been made applicable retrospectively , has been enunciated by august Supreme Court, as well as, this Court in the following judgments:- F.B Ali vs. State (PLD 1975 SC 506), Sutlej Cotton Mills Ltd vs. Industrial Court (PLD 1966 SC 472), Shohrat Bano vs. Ismail (1968 SCMR 574), Garikapati vs. Subbiah Chaudhry (AIR 1957 SC 540), P.I.A Corporation vs. Pak Saaf Dry Cleaners (PLD 1981 SC 553), Nazir Begum vs. Qamarunnisa (1982 CLC 2271 ) and Muhammad Ibrahim vs. Surrayiaun Nisa (PLD 1992 SC 637). The above view is inline with the law laid down by the august Supreme Court in Mian Rafi un Din vs. Chief Settlement and Rehabilitation Commissioner (PLD 1971 SC 252 ) where it was observed as under:- "It is well settled that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun and not the law that existed at the date of the judgment or order. This is, however, subject to the exception that the new law shall apply if it is a mere rule of procedure or if it has been applied retrospectively to pending proceedings. This rules, as stated in Craies on Statue Law, Sixth Edition, page 400 is as follows:- "It is general rule that when the Legislature alters the right of parties by taking away or conferring any right of action, its enactment, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely where enactment merely affect procedure and do not extend to rights of action".
Similar view was expressed by the august Supreme Court of Pakistan in Nagina Silk Mill, Lyallpur vs. The Income Tax Officer etc (PLD 1963 SC 322), Adnan Afzan vs. Capt. Sher Afzal (PLD 1969 SC 187), Nabi Ahmed etc vs. Home Secretary , Government of West Pakistan etc (PLD 1969 SC 599), Province of East Pakistan vs. Sharafatullah etc (PLD 1979 SC 514), Sona etc vs. The State etc (PLD 1970 SC 264), Hassan and others vs. Fancy Foundation (PLD 1975 SC 1), The Collector Customs etc vs. M/s Rais Khan Limited through Muhammad Hashim (1996 SCMR 83), Malik Gul Hasan etc vs. Allied Bank of Pakistan (1996 SCMR 237), Manzoor Ali etc vs. United Bank Limited (2005 SCMR 1785 ), Commisioner of Income Tax vs. Messrs Eli Lilly Pakistan (Pvt.) Ltd (2009 PTD 1392 ), Muhammad Tariq Badar etc vs. NBP etc (2013 SCMR 314 ) and Badshah Gul W azir vs. Governemnt of KPK etc (2015 SCMR 43 ).
11. Above discussion leave no doubt that respondents are bound to give alternative plot in lieu of exempt plot 160 (measuring 04 kanal 24 sq.ft.) Shah Jamal Scheme to the petitioner and other legal heirs of petitioners father against their land acquired. In case, there is no alternative vacant plot available, then they will be entitled to cash compensation as per current market value of the plot measuring 04 kanal 24 sq.ft. at Shah Jamal Scheme, Lahore. The stance of the respondents that petitioner is only entitled for Rs.27680/- cash compensation for plot measuring 04 kanal 24 sq.ft. being amount assessed by Land Acquisition Collector is arbitrary, perverse and beyond understanding of a man of ordinary prudent. The respondents being public functionaries are bound to act justly and fairly and if at all, compensation is to be paid, then petitioner and other legal heir must be given current market value of similar plot.
12. Land Acquisition Act, 1894 (Act of 1894) also awarded for land acquired, the market value of the land shall be taken into consideration. The term "market value " used in section 23 of Act of 1894 was discussed by august Supreme Court in Province of Punjab through Land Acquisition Collector and another vs. Begum Aziza (2014 SCMR 75) and Land Acquisition Collector , G.S.C, N.T.D.C (WAPDA), Lahore and another vs. Mst. Surraya Mehmood Jan (2015 SCMR 28) and after considering entire case law, in later referred judgment, following principles were laid down to determine market value under section 23 ibid:-
8. The mode for determining such market-value and the other relevant factors, which must necessarily be considered, while arriving at a fair and just decision, as to the compensation due and payable upon acquisition of land under the Act of 1894 have variously came up for adjudication before this Court and have been consolidated in a recent judgment of this Court, reported as Province of Punjab through Land Acquisition Collector and another v. Begum Aziza (2014 SCMR 75). It would be advantageous to reproduce the relevant portion of the said judgment, which reads as under:-- "(6) ... Thus in determining the quantum of compensation the exercise may not be restricted to the time of the aforesaid notification but its future value may be taken into account. In Abdur Rauf Khan v. Land Acquisition Collector/D.C. (1991 SCMR 2164 ) this court while dilating upon the question of rate of compensation laid down following principles germane to section 23 of the Land Acquisition Act which may be kept in view .
Those are as follows:-- "(i) That an entry in the Revenue Record as to the nature of the land may not be conclusive, for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable of becoming Chahi land;
(ii) That while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered;
(iii) That the market value of the land is normally to be taken as existing on the date of publication of the notification under section 4(1) of the Act but for determining the same, the prices on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years may be considered including other factors like potential value etc."
(7) The afore-referred ratio was reiterated with greater depth in Murad Khan v. Land Acquisition Collector (1999 SCMR 1647 ) wherein the court found that though the expression "market value" appearing in section 23 of the Land Acquisition Act has not been defined but its import can be appreciated from the precedent case-law . The Court deduced from the precedent case-law the following principles:--
(i) The data from which the market value of the land can be estimated is given in Rule 13 of the North-W est Frontier Province Circular No.54 issued presumably under section 55 of the Act. (Premier Sugar Mills Limited v. Hayatullah Khan (PLD 1956 (W .P.) Pesh. 67).
(ii) The best method to work out the market value is the practical method of a prudent man laid down in section 3 of the Evidence Act to examine and analyse all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land. "The Land Acquisition Collector , Rawalpindi v.
Lieut. General W ajid Ali Khan Burki (PLD 1960 (W .P.) Lah. 469).
(iii) Subsection (1) of section 23 of the Act provides that in determining the amount of compensation the Court shall take into consideration the market value, loss by reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting 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 Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition. (Province of West Pakistan and another v. M. Salim Ullah and others (PLD 1966 SC 547).
(iv) The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of it near about the date of notification under section 4(i) of the Act. The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighbouring locality , the potential value of the land need not be separately awarded because such sales cover the potential value. (Jogendra Nath Chatterjee and others v. State of W est Bengal (AIR 1971 Calcutta 458).
(v) It is obvious that the law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining the market value, classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani as in the present case but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits. (Pakistan and another v. Rehm Dad and another (1980 CLC 574.).
(vi) According to the well-settled principle, while determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration. (Pakistan v. Din Muhammad and others (1983 CLC 1281).
(vii) Consideration should be had to all the potential uses to which the land can be put, as well as all the advantages, present or future, which the land possesses in the hands of the owners. (Mst. Khatu and others v. Barrage Mukhtiarkar , Thatta ( PLD 1977 Kar . 203 ).
(viii) In determining the quantum of fair compensation the, main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction. (Din Muhammad v. General Manager , Communication and others ( PLD 1978 Lah. 1 135).
(ix) The measure of fair compensation is the value of the property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser this means that we, have to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist. (Province of Punjab v . Sher Muhammad and another ( PLD 1983 Lah. 578 ).
(x) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the past sales' should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as Court witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in questions because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The previous sales of the land, cannot, therefore, be always taken to be an accurate measure for the determining the price of land intended to be acquired. (Fazalur Rehman and others v. General Manager, S.I.D.B. and another (PLD 1986 SC 158).
(xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value. (Government of Pakistan v.
Maulvi Ahmed Saeed ( 1983 CLC 414 ).
(xii) It is a well-settled law that in cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and - character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act. (Central Government of Pakistan v. Sardar Fakhar-e-Alam and another (1985 CLC 2228).
(xiii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted, should be taken into consideration. (Raza Muhammad Abdullah through his Legal Heirs v.
Government of Pakistan and others ( 1986 MLD 252 ).
(xiv) The phrase "market value of the land" as used in section 23(1), of the Act means "value to the owner" and, therefore, such value must be the basis for determination of compensation. The standard must be no, subjective standard but an objective one. Ordinarily , the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser . The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration. (Abdul Wahid and others v. The Deputy Commissioner ( 1986 MLD 381 ).
13. The principles that can be gleaned from the aforesaid judicial precedents are that the term "market value" as employed in section 23 of the Act of 1894 implies, the price that a willing purchaser would pay to a willing buyer in an open market arms length transaction entered into without any compulsion. Such determination must be objective rather than subjective and while undertaking this exercis e, contemporaneous transactions of the same, adjoining or adjacent the land may be taken into account. From the abov e case law and provision of Article 24 of the Constitution, it can safely be concluded that quantum of compensation payable to the petitioner and other legal heirs of his father are to be current market value of plot No.160, Shah Jamal Scheme, Lahore.
14. In view of above discussion, this constitu tional petition is allowed with direction to respondents to allot alternat ive plot to the petitioner and other legal heirs of petitioners father in lieu of plot No.160 (measuring 04 kanal 24 sq.ft.) Shah Jamal Scheme, Lahore of same value and measurement/description or as an alternative pay cash compensation at the current market rate of the aforesaid plot forthwith. The above allotment and payment will indeed be subject to verification of particulars of petitioner and others, who claim to be legal heirs of original allotee (Mr . Naseem Mumtaz, deceased).