MUHAMMAD AMEER BHA TTI, J. This appeal is directed against the judgment dated 31.01.2013 of the learned Referee Court whereby Reference of the appellants filed under Section 18 of the Land Acquisition Act, 1894, was partially accepted and quantum of compensation was fixed at the rate of Rs.5000/- per marla instead of Rs.50,000/- per marla as claimed by the appellants.
2. Facts of the case are not necessary to be reiterated here as the same have already been articulated in the impugned judgment passed by the learned Senior Civil Judge, Kasur/Referee Court.
3. We have heard the learned counsels for the parties and gone through record of the case with their able assistance.
4. Indubitably the appellant-Falak Sher, who appeared as AW-3, in his testimony admitted price of the land at the time of Notification under Section 4 of the Act, 1894, at the rate of Rs.5000/- per marla, however , he explained therein that price at the time of Award was not less than Rs.50,000/- per marla, therefore, the learned Referee Court committed error by not fixing price of the land prevailing at the time of issuance of Award instead of fixing it what was at the time of Notification. Adds that quantum of price of land should have been determined at the time of announcement of Award. While relying on judgments of Hon'ble Supreme Court in the cases reported as Government of N.-W .F.P. and others v. Faiz Muhammad Khan and others (PLD 2007 Supreme Court 614) and Land Acquisition Collector and others v. Mst. Iqbal Begum and others (PLD 2010 Supreme Court 719), his further contention is that the market value and potential value are not enough to determine the compensation but inflationary trend of currency till announcement of Award shall also be considered and this aspect of the case is missing in the impugned judgment, therefore, the same is unsustainable in the eye of law. It is appropriate to reproduce the relevant para of the case-law cited in PLD 2007 Supreme Court 614 , supra, as under: "12. In Nawabzada Muhammad Saeed Khan v. The Collector , Land Acquisition 1990 MLD 1232 , a Division Bench of this Court after surveying the entire case law laid down the following principles in respect of assessment of a compensation:-- "(1) The market value or market price means the price property would fetch in the market. The price will be highest price a willing buyer would pay and a willing seller would accept both being fully informed and the property being exposed for a reasonable period of time.
(2) The market value may be different from the price a property can actually be sold at a given time. The market value is that price which it might be expected to bring if offered for sale in a fair market.
(3) In assessing the compensation the potential value i.e. the benefits, advantages arising from the present use and future use are to be taken into consideration.
(3) The inflationary trend and depreciation in currency of the country between the date of acquisition under section 4 of the Act and the date of award also should not be totally ignored and be taken into consideration."
However other referred judgment of Hon'ble Supreme Court PLD 2010 Supreme Court 719, supra, is silent with regard to inflationary trend of currency , wherein it has been held: "Various factors have to be taken into consideration i.e. the size and shape of the land, the locality and its situation, the tenure of property , the user, its potential value, and the rise or depression in the value of the land in the locality and even in its near vicinity . In our view real, proper and potential value, keeping in view all the relevant factors have been determined and it is unexceptionable . It is well settled by now that "to determ ine 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 adjoini ng lands. In assessing market value of land, its location, potentiality and price evidenced by transactions of similar land at the time of notification are factors which should be kept in view."(emphasis supplied)
5. On the other hand, learned counsel for the respondents by placing reliance on Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others (2010 SCMR 115) contends that the Reference before the learned Referee Court filed by the appellants was not maintainable and liable to be rejected on account of non-joinder of necessary party viz., the Government of Punjab, being violative of Section 79, C.P .C. and Article 174 of the Constitution of Islamic Republic of Pakistan.
6. We are conscious of the law laid down by the apex Court in PLD 2007 Supreme Court 614, relied upon by the learned counsel for the appellants providing for the guidelines viz-a-viz determination of price-compensation to be particularly taken into account are the inflationary trend and depreciation in currency of the country from the period of notification to the date of announcement of Award whereas the dictum laid down in 2010 SCMR 115, referred to by the learned counsel for the respondents is silent in this regard for the obvious reason that mandate of Statute for determination of price limited upto issuance of notification went till announcement of Award considering various factors including nature, location of acquired land, sale price of adjoining lands and potentiality . Entitlement of the landlord to claim the price of land at the time of taking over possession/notification, is always mandatory consideration, therefore, the other formality regarding announcement of Award will not affect the price of the land; hence any period consumed in holding such formalities cannot be reckoned as fatal and provide any advantage to the landlord to call for reconsideration/redetermination of compensation of land because rights/interest of the vendors/landlords have already been duly protected under the law by granting 15% compulsory charges compensation and 8% compound interest till its payment. In such eventuality , inflat ionary trend and depreciation in currency of the country had been adequately met with and for this probable reason this portion of consideration was never endorsed by Hon'ble Supreme Court in latter judgment PLD 2010 Supreme Court 719 , supra.
7. The criteria for determination of compensation of acquisition laid down by the superior Courts of the country is termed as, "market value of acquired property , its potentiality , nature, size, shape and strategic location. Civil Aviation Authority through Project Director and others v. Rab Nawaz and others (2013 SCMR 1124) unequivocally encompassed the proposition in the following manner:- "Keeping all the factors like potentiality , Location, Market value and the absence of the free will to sell, the amount of Rs.70,130 per kanals is the compensation that could be awarded to the landowners of the above mentioned 4 adjoining villages whose land has been acquired." We do not find that such reasoning and the view set forth by the learned High Court, is against the established principles for the appreciation of the evidence on the record, especially in regard to the fixation of "market value" for the acquisition of the properties under the Act."
"Land Acquisition Collector , G.S.C., N.T.D.C., (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan"
(2015 SCMR 28), "Land Acquisition Collector , Abbottabad and others v. Gohar-ur-Rehman Abbasi" (2009 SCMR 771), "Fazal Haq College through Vice-Ch airman v. Said Rasan and others" (PLD 2003 Supreme Court 480), "Province of Punjab throu gh Collector , Attock v. Engr . Jamil Ahmad Malik and others" (2000 SCMR 870), "Water and Sanitation Authority and another v. Niaz Muhammad and 5 others" (1994 SCMR 1648 ), "Land Acquisition Collector , Abbottabad and others v. Muhammad Iqbal and others" (1992 SCMR 1245 ), "Government of Pakistan through Military Estate Officer, Abbottabad and another v. Ghulam Murtaza and others" (2016 SCMR 1141), "Province of Punjab through Land Acquisition Collector and another v. Begum Aziza" (2014 SCMR 75) and "Government of N.W.F.P. and others v. Faiz Muhammad Khan and others" (PLD 2007 Supreme Court 614) are quoted with advantage.
8. On the other hand, Hon'ble Supreme Court while interpreting Section 25 of Land Acquisition Act in case reported as Land Acquisition Officer and Assistant Commissioner , Hyderabad v. Gul Muhammad through Legal Heirs (PLD 2005 Supreme Court 311) has held that compensation cannot be awarded beyond the claim of the landlord at the time of notification. It means that apex Court specifically declared compensation beyond the scope of landlord's own claim at the time of notification; coming to the naught. Relevant para of the said case-law is reproduced hereunder:- "In the instant case admittedly the respondents/plaintiffs upon whom notices under subsection (3) of section 9 of the said Act were duly served as observ ed above and pursuant to that in the application respondent specifically claimed Rs.40,000 per acre and in view of other documentary as well as oral testimony on record, the respondents/plaintiffs would not be entitled to claim more than what they had claimed in pursuance of service of notice under section 9(1) of the said Act i.e. Rs.40,000 per acre hence there was no jurisdiction in law vested with the learned Judge in Chambers to enhance the rate of compensation from Rs.40,000 to 70,000 per acre in the cross-objections filed before him. Learned Judge in Chambers has placed relianc e upon the case of Hyderabad Development authority (supra) but in the said cited case notice under section 9 of the said Act was not served upon the claimant and the notices were not produced in the Court, therefore it was observed by this Court at page 50 of the said judgment that it was not poss ible to say that requisite notices according to section 9 were issued consequently the provision of section 25(2) of the said Act could not be invoked and it was also observed that the claimant have omitted for sufficient reasons their claim therefore they were entitled to enhanced rate of compensation and it was also found that claimant acted in good faith and there did not appear to be any negligence on their part. However , in the instant case the notices under section 9 of the said Act were duly served and in response to the said notice the claimants made a statement in the form of an application claiming not less than Rs.40,000 per acre, therefore in view of subsection (1) of section 25 of the said Act, it was mandatory for the Court not to enhance the amount than what was claimed by the claimant in pursuance of the notice issued under section 9 of the said Act. Reference may be made to (i) Prasannakumar Datta v. Secretary of State AIR 1934 Calcutta 525, and (ii) Punjab State v. M/s. Lachman Dass Sons AIR 1964 Punjab 68, wherein learned Division Bench of the Punjab Indian High Court has observed that provisions of section 25 limited the jurisdiction of the Court in the matter of enhancement of compensation and thus there can be no question of waiver of these provisions. A Court cannot do what the statute expressly forbids. Neither by consent nor by waiver the mandatory provision for the statute can be either modified or waived. It is a statutory duty which is cast on the Court and effect must be given to it. It is not a benefit which is conferred on any party ."
In this case, AW-3/appellant was candid to testify that the price of land at the time of notification @ Rs.5000/- per marla; accordingly compensation was enhanced by the learned Referee Court vide its impugned judgment, hence the learned trial Court had not committed any illegality to award the compensation explicitly delineated by the appellants as price of the land at the time of notification by the appellants in their evidence.
9. So far as the contention of the learned counsel for the respondents for rejection/disposal of the Reference on account of non-joinder of necessary party/Government of Punjab is concerned, it carries no substance because Section 20 of the Land Acquisition Act, 1894, which is special provision to deal with acquisition matters, provides the issuance of notice to Government or department for whose benefit land was acquired as obligatory , therefore, Referee Court is under legal obligation to issue notices to all stakeholders including the Government through Collector , acquiring agency/body and even those landlords who have not accepted the price fixed in Award irrespective of their non-impleadment, hence omission to implead them as defendant/respondent in Reference will not turn out to be fatal. Even otherwise it is settled law that special provision will take precedence over the general provision, which stands reaffirmed by Honourable Supreme Court in Brig. Sher Ali Baz and another v. The Secretary , Establishment Division and others ( PLD 1991 SC 143 ), which reads as under:- "There is a very well entrenched principle of interpretation of statutes and statutory instruments and it is Generalia specialibus non derogant meaning 'General words do not derogate from special provisions, or, "special provisions will control general provisions."
Similarly , Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/Sargeant Traffic through S.P., Traffic, Lahore and others ( 1996 SCMR 826 ) interpreted as follows: "It is well-settled principle of interpretation that whereas general law as well as special law applied to a particular case then to the extent of application of special law in that case the provisions of general law stand displaced. Rule 8 of the Rules of 1974 referred by the learned counsel for the respondents, is a general provision of law applicable to all directly recruited civil servants in Punjab for determining their seniority inter se while rule 12.2(3) of the Rules, which also deals with the same subject, is applicable only to a specific category of civil servants, namely , members of Police Force. Rule 12.2(3) of the Rules , therefore, is a special provision of law while rule 8 of the Rules of 1974 is a general provision of law, both dealing with the same subject. The former being applicable to a specific category of civil servants while the latter is applied to the whole body of civil servants in Punjab. Therefore, if the provision of rule 12.2(3) of the Rules applied to a case, to that extent rule 8 of the Rules of 1974 will be inapplicable."
10. In this view of the mater , the learned Referee Court has not committed any illegality and irregularity while fixing the quantum of compensation in terms of appellants' claim at the time of passing of notification, therefore, this appeal has no force and is dismissed accordingly . No order as to cost.