JAWAD HASSAN, J. Through this Appeal, filed under Section 54 of the Land Acquisition Act, 1894 (the "Act"), the Appellant calls in question the validity of the judgment and decree dated 24.02.2020 passed by the Senior Civil Judge (Civil Division), Rawalpindi whereby reference application filed on behalf of the Respondent No.1/landowner under Section 18 of the "Act" against the award dated 17.08.2016 passed by Land Acquisition Collector, Rawalpindi was allowed.
2. The facts out of which this appeal has arisen may be briefly stated: An extent of plots No.3,4 and 5 having Survey No.542/3,542/4 and 542/5, alongwith its superstructure situated at 263, Shabbir Sharif Road, Rawalpindi belonging to the Respondent No.1 was acquired by the Land Acquisition Collector, Rawalpindi on requisition of Army Authorities through Government of Punjab for defense purpose. The Land Acquisition Collector, made an award dated 17.08.2016 determining the compensation of land at the rate of Rs.600,000/- per marla. The land owner had apparently on 08.09.2016 (this date finds mentioned at Page 8-16 of paper book) applied under Section 18 of the "Act" to the Land Acquisition Collector/Assistant Commissioner, Rawalpindi requesting him to make a reference to the Civil Court having jurisdiction. Thereafter, the Respondent No.1 filed amended application under Section 18 of the "Act" on 22.12.2017 (this date finds mentioned at Page 17-26 of paper book) for the same purpose. The Land Acquisition Collector turned down the reference filed by the Respondent, No.1 on 14.12.2016. The said order was assailed by the Respondent No.1 through W.P.No.144 of 2017 which was allowed vide order dated 15.03.2017 and case was remanded to the Collector concerned for transmitting the reference to the referee Judge pursuant to which quasi- judicial order dated 24.02.2020 was passed.
3. The learned Law Officer inter alia contends that the impugned judgment and decree being a result of misreading and non-reading of documentary evidence produced by the Appellant is liable to be set aside in as much as, documentary evidence of the Appellant has not been considered; that the trial Court has not taken into consideration the procedure for enhancement of compensation; that the Appellant made all payments in respect of agreement dated 15.07.2016 (Ex.A10) executed with the Respondent No.1 which has been received by him but the trial Court has neither considered nor given any findings on receipt of consideration amount by the Respondent No.1; that the Respondent No.1 opted to file reference under Section 18 of the "Act" rather than to fulfil terms and conditions of Ex-A10; that the factum of coercion as alleged by the Respondent No.1 was based on malafide and no proper issue in this regard was framed.
4. Conversely the learned counsel for the Respondent No.1 has argued that the learned trial Court after analyzing the evidence available on file has comprehensively dealt with the case and passed an eminent judgment, and that the enchantment was made by the trial Court keeping in view essential factors enumerated in Section 23 of the "Act". He has further argued that the Land Acquisition Collector had wrongly assessed the value and compensation of the land of the Respondent No.1 and he was put under pressure to execute agreement Ex-A10 just to deprive him from valuable property and that the amount received, in this respect, was taken by him 'under protest'. He adds that the Respondent No.1 approached the Land Acquisition Collector for enhancement of compensation in terms of reference filed under Section 18 of the "Act". He lastly prayed for dismissal of the instant appeal.
5. Arguments heard. Record perused.
6. Pursuant to directions passed in W.P.No.144 of 2017 on 15.03.2017, the trial Court captured the disputed area of facts by framing the following issues:-
1. Whether the Petitioner is entitled for the enhancement of compensation as prayed for? OPA.
2. Whether the application is not maintainable and same is liable to be dismissed with costs u/s 35-A CPC? OPR.
3. Whether the Petitioner has not approached the court with clean hands and has suppressed the material facts from this Court? OPR.
4. Whether the Petitioner has no cause of action? OPR.
5. Relief.
7. After recording evidence of the parties, the learned trial Court accepted the reference and enhanced the rate of compensation from Rs.600,000/- to Rs.4,000,000/- per marla vide judgment and decree dated 24.02.2020. The findings on issue No.1 are pivotal and relevant which require re- determination by this Court.
8. A ground was urged by Law Officer that the trial Court has not properly followed the procedure for enhancement of compensation. Now the question arises what should be the actual compensation of acquired land. The mode for determining the same is provided in Section 23 of the "Act" according to which the landowner is entitled to compensation and not just market-value and, therefore, loss or injury occasioned by its severing from other property of the landowner, by change of residence or place of business and loss of profits are also relevant. The delay in the consummation of the acquisition proceedings cannot be lost sight off. While conducting the aforesaid exercise, oral evidence, if found, credible and reliable can also be taken into account. In "ABDUR RAUF KHAN Versus LAND ACQUISITION COLLECTOR/D.C." (1991 SCMR 2164) the august Supreme Court of Pakistan while dilating upon the question of rate of compensation laid down the following principles germane to Section 23 of the "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."
9. The findings of learned trial Court on issue No.1 are of much importance which read as: "It is found that the compensation awarded by the Collector through the impugned award was not based on reasoning as the land was not to be valued mere in accordance of its usage but the potential of land is the essential factor to be taken into consideration. The Land Acquisition Collector while determining the compensation of the acquired land had overlooked the potential value thereof and fixed its price arbitrarily in disregard of well-established principle of law lay down by the superior courts."
10. The contention of Respondent No.1 in impugned reference with regard to measurement of the acquired land being 700 sq. yards, instead to that of 611 sq. yards calculated by authorities finds strengths from unrebutted document Ex.A2 having been adduced in evidence without any objection. Conversely, the Respondent No.1 himself appeared as AW-1, a perusal of whose evidence shows that he admitted point that the nature of acquired property has now been converted into commercial. The existing status and future potential of the acquired land also finds support from another unrebutted, rather admitted officially prepared document Mark-A7 related to award of compensation in connection with another acquired land for construction of Rawalpindi-Islamabad Metro Bus Project. The said acquired land admittedly is located mere 300 to 350 yards away from land subject of instant lis. Significantly, vide above mentioned admitted document Mark-A7, market value of land subject thereto was assessed @ Rs.4,000,000/- per marla prior to award in question. Needless to mention here that though a document which has been made part of record only as Mark ordinary cannot be treated as admissible in evidence but in the present case, since authenticity of Mark-A7 is not disputed by any of the sides so being public document, the Court can take judicial notice of the same for arriving at the just decision of the case. The learned trial Court thus has correctly based upon said valuation of other acquired land in same vicinity located not too far from subject land of instant lis has assessed and calculated market value of subject property. Even otherwise, the Appellant not only is unable to dislodge said finding of fact with any reliable record, but he has been unable to drag on record any other document leading inference of court with regard to market value of acquired subject land other than so assessed by learned trial Court. Reliance is placed on "LAND ACQUISITION COLLECTOR GSC NTDC (WAPDA), LAHORE Versus SURRAYA MEHMOOD JAN" (2015 SCMR 28) the apex Court after taking into consideration guidelines laid down in the judgment reported as "PROVINCE OF PUNJAB THROUGH LAND ACQUISITION COLLECTOR AND ANOTHER Versus BEGUM AZIZA" (2014 SCMR 75) and discussing the plethora of judgments on the subject has held that the term "market-value" as employed in section 23 of the "Act" 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.
11. Learned Law Officer though has agitated hard that, after entering into agreement Ex.A10 as well as after having received amount of compensation struck therein, the Respondent No.1 was available with no locus standi to retreat from his said act to step ahead for institution of reference under Section 18 of the "Act". While on the other hand, the version of the Respondent No.1 is that the aforesaid agreement was forcibly executed just in order to deprive him from valuable property and that the enhancement was made by the trial Court keeping in view the value of land in question.
12. The "Act" was promulgated for the acquisition of land for public purposes and for Companies.
Before proceedings further it is imperative to discuss the preamble of the "Act" which deals with acquisition of land required for public purposes and for determining the amount of compensation.
The preamble to a statute is though not an operational part of the enactment yet it is a gateway, which opens before us the purpose and intent of the legislature, which necessitated the legislation on the subject and also shed clear light on the goals which the legislator aimed to secure through the introduction of such law. The preamble of a statute, is therefore, holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law. The Preamble of the "Act" laid strong emphasis to deal with matters of acquisition of land and payment of compensation to be made on such account. The August Supreme Court of Pakistan in "DIRECTOR GENERAL, FIA AND OTHERS Versus KAMRAN IQBAL and others" (2016 SCMR 447) laid down the similar principle by holding that: "indeed, preamble to a Statute is not an operative part thereof, however, as is now well laid down that the same provides a useful guide for discovering the purpose and intention of the legislature.
Reliance in this regard may be placed on, the case of Murree Brewery Company Limited v.
Pakistan through the Secretary of Government of Pakistan and others (PLD 1972 SC 279). It is equally well-established principle that while interpreting a, Statute a purposive approach should be adopted in accord with the objective of the Statute and not in derogation to the same."
13. It evinces from the record that the process of acquisition of certain lands including the land of the Respondent No.1, bearing 542/3,542/4 and 542/5, alongwith its superstructure situated at 263, Shabbir Sharif Road, Rawalpindi, was started in year 2014 when Military Estate Office, Rawalpindi requested for acquisition of aforesaid land for defence purpose pursuant to which the Land Acquisition Collector, Rawalpindi issued notification under Section 4 of the "Act" on 13.12.2014 which was published in Punjab Official Gazette on 14.01.2015 followed by notification under Section 17(1)(4) read with Section 6 of the "Act" in the Government of Punjab Gazette on 31.07.2015. The District Collector, Rawalpindi on the recommendations of District Price Assessment Committee, Rawalpindi in its meeting held on 24.07.2015 assessed the market price @ Rs.600,000/- per marla and later on, alleged agreement to sell (Ex.A10) was executed between one Colonel Tabraiz Akhtar Abbasi and the Respondent No.1 on 15.07.2016 pursuant to which award in respect of Respondent No.1's property was announced on 24.08.2016 and possession of property was taken over by the Appellant on 15.08.2016 by making payments which was received by the Respondent No.1 "under protest" (Ex.A13).
To fully understand the consequences of receiving the compensation with or without protest, it is essential to completely read the provision of Section 31 of the "Act", which is reproduced below:
31. Payment of compensation or deposit of the same in Court.- (1) When the Collector has made an award under section 11-
(a) if the persons interested entitled to compensation under the award and the Provincial Government accept the award and intimate their acceptance in writing to the Collector before the expiry of the period prescribed in sub-section (2) of section 18 for making an application to the Collector for referring the award to the Court, or in sub-section (3) of the said section for referring the award to the Court by the Provincial Government, whichever is later, or if the period specified in sub-section (2) of the said section for making an application to the Collector or in sub-section
(3) for referring the award to the Court has expired and no such application or reference has been made, the Collector shall, before taking possession of the land, tender payment of the full amount of compensation awarded by him to the persons entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in sub-section (2);
(b) if the persons interested entitled to compensation under the award or the Provincial Government object to the award and an application has been made to the Collector under sub- section (2) of section 18 for referring the award to the Court or the award has been referred to the Court by the Provincial Government under sub-section (3) of that section, the Collector shall, before taking possession of the land, tender payment of the compensation awarded by him or the estimated cost of acquisition of such land as determined by the Collector of the district under sub-section (1) of section 17, whichever is less, to the persons entitled thereto under the award and shall pay it to them unless prevented by some one or more of the contingencies mentioned in sub-section (2): Provided that no payment under clause (b) shall be made until the person entitled to compensation furnishes to the satisfaction of the Collector a security for refund of the amount, if any, which may subsequently be found to be in excess of the compensation awarded to him by the Court].
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.
(3) Notwithstanding anything in this section the Collector may, with the sanction of the [Commissioner] instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land-revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned.
(4) Nothing in the last foregoing sub-section shall be construed to interfere with, or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contact in respect thereof.
14. From bare reading of proviso to subsection (2) of section 31 reveals that the entire "Act", does not provide any particular mode, manner and method of protest by a claimant at the time of receipt of amount of compensation, awarded under Section 11 of the "Act", hence, the protest can be made either in writing or through reference under Section 18 of the "Act" prescribed period of limitation which admittedly was filed by the Respondent No.1 against low assessment of compensation given by Land Acquisition Collector. Moreover, Section 31(4) of the "Act" clearly demonstrates that for the payment of compensation of acquired land to person interested, only Collector concerned is competent to execute any contract while in the case in hand, the agreement (Ex-A10) was admittedly executed between the Respondent No.1 and one Col. Tabraiz Akhtar Abbasi who was not competent to execute the same. By no means it can be gathered from record that Appellant or Collector were not aware of the law reproduced above with regard to the agreement in question, which was not followed. The Appellant jumped out of mode prescribed by law to enter in agreement with Respondent No.1, which agreement by no means may force in any estoppels against institution of reference on behalf of Respondent No.1. Likewise, the Appellant is available with no justification at all with regard to ignoring law in that regard. Prior to questioning any act of the Respondent No.1, the Appellant was aspired to expose his claim with clean hands, but his above mentioned default in course of execution of agreement to sell Ex.A10 disentitles him to raise fingers against subsequent acts of the Respondent No.1. Superstructure built upon said[61] agreement Ex.A10 is bound to collapse on earth to bite dust, particularly in situation that learned trial Court ended up with opinion that the said agreement was the result of coercion carrying no binding effect upon the Respondent No.1. It is the basic principle of law that if law provides a mechanism for doing an act, taking an action or initiating certain measures, then the same must be complied with as and when the law provided that things to be done in a particular manner, the same are to be done in that manner and if anything is done contrary or in deviation to that, the same shall be deemed to have not been done at all. Requirement of making agreement with the Collector with regard to making compensation was a mandatory requirement under Section 31(4) of the "Act", and the Appellant's failure to comply with the same, has rendered its action astray from the course of law and thus cannot be termed in accordance with law and cannot get the protection of the very provision, which is violated by the Appellant. It is settled principle of law that if base/foundation of any order or action is illegal then whole superstructure built thereupon cannot be sustained. When the law specifies a particular manner and procedure then it is obligatory for the functionary of the state to adhere to the same and comply with it in all respects and any negligence, failure or omission to do so invalidate the proceedings on account of which whole superstructure raised on such defective foundation automatically crumbles down. The Larger Bench of Honorable Supreme Court in "YOUSAF ALI Versus MUHAMMAD ASLAM ZIA and 2 others"
(PLD 1958 Supreme Court (Pak.) 104) expounded this principle by observing that "if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded." Similarly, the Honorable Supreme Court in "EXECUTIVE DISTRICT OFFICER (EDUCATION), RAWALPINDI Versus MUHAMMAD YOUNAS" (2007 SCMR 1835) also held that "It is a settled law that when the basic order is without lawful authority then the superstructure shall have to fall on the ground automatically". Whereas the August Supreme Court in "REHMATULLAH and others Versus SALEH KHAN and others" (2007 SCMR 729) also upheld the similar principle by observing "it is settled law when the basic order is without lawful authority then all the super structure shall fall on the ground automatically as law laid down by this Court in Yousaf Ali's case PLD 1958 SC 104 and Crescent Sugar Mills' case PLD 1982 Lah."
14. We, therefore, fully agree with the findings of the learned trial Court and do not find any illegality in the impugned judgment and decree which has been passed in consonance with the spirit of law, hence, does not call for interference by us.
15. In the above circumstances, this Appeal, being devoid of any merit, is hereby dismissed with no orders as to cost.
16. Needless to mention that the amount received by the Respondent No.1 under protest in terms of agreement Ex.A10 shall be adjusted in decretal amount and to this extent, the counsel of both parties have no objection.