' FAZL-I-MAHMOOD, J.-The instant ten Regular First Appeals, bearing Nos. 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of 1967, are directed against the consolidated judgments of the learned District Judge, Bahawalpur dated 30-9-1967 answering references of interested persons tiled under section 18 of the Land Acquisition Act, 1894 (Act I of 104). All these appeals are being decided by this judgment since they arise out of the same acquisition proceedings and the points of law are also common and were ordered to be consolidated by an earlier order of this Court.
2. The facts in brief giving rise to these appeals are that under the Land Acquisition Act, 1894, the Provincial Government acquired for the Town Committee, Ahmadpur East, an area 26 acres 5 Kanals and 17 Marlas situated in the revenue estate of Mauza Wahi Qadir Dina within the urban limits of Ahmadpur East for the purpose of construction of a grand market. A notification for this purpose under section 4 of the Land Acquisition Act was issued on 6-3-1961 with a further notification under section 6 on 14-12-1962. The possession of the vacant land was taken over under section 9 of the Act on 15-3-1963. The Land Acquisition Collector gave his award on 24- 6-1963 when none of the respondents was present and it was directed that they be informed about the same. It may be mentioned here that the Collector before giving his award had asked for the opinion of the Tehsildar about the valuation of the land who opined that the compensation for land be given at the rate of Rs, 4,000 per acre as against the demand of the owners at the rate of Re. 1 per sq. Ft. The Collector instead proceeded to assess the compensation on the basis of Ausat Panjsala (five years' average price of the sales). The Collector finally in his award, dated 24-6-1963 treated the land acquired as agricultural and on that basis assessed the compensation in the following terms :- Chahi Nehri Nehri Banjar Jadid Banjar Qadeem Ghair Mumkin Rs, 1,560 per acre 1,000 800 500 300 If
3. The persons interested/land owners, none of whom had accepted the award, instead on various dates between 31-7-1963 and 5-9-1963, filed objection petitions against the Collector's award, dated 24-6-1963, claiming references to the Court under section 18 of the Land Acquisition Act for determination by the Court. It is not disputed that none of the persons interested who are respondents to these appeals, had accepted the compensation offered by the Collector as per his award rendered under section 11 of the Act, prior to filing their objections through written applications under section 18 of the Act. On receipt of these references, which were forwarded by the Collector for adjudication in accordance with law, the learned District Judge, Bahawalpur took up their disposal. It is dtring the post-reference period that some of the respondents received the compensation amount offered by the Collector without protest at the time of accepting payments on various dates between the period 4-6-1964 to 18-5-1967, a fact which stood disclosed through the statement of Muhammad Tufail, Clerk in the office of Revenue Assistant/ Land Acquisition Collector. The payment schedule Exh. D. 16 established these facts. The learned District Judge consolidated all these cases. A common issue to be decided in the cases was framed as follows :- "What was the market value of the land acquired at the time of the acquisition?"
' Thereafter, the parties led documentary and oral evidence. The interested persons/respondents in these appeals examined 37 witnesses while the appellants, the Province of West Pakistan and the Market Committee examined five witnesses in defence.
4. The principal point, according to the learned District Judge, requiring determination was with respect to the market value of the land in question and further whether it was purely agricultural land or Sakni in character. The contest between the parties was that the respondents claimed that the entire land should be valued as Sakni land whereas the appellants (respondents before the learned Ditrict Judge) contended that it should be compensated while considering it to be agricultural piece of land.
5. The learned District Judge on the basis of the material on the record came to the conclusion that in so far as the land in dispute was concerned, it was admittedly situated within the municipal limits of Ahmadpur East. Exh. P. 22 was the sketch map of the entire Mauza Wahid Qadir Dina. A portion of the left corner of this Mauza had been acquired for the grain market. The land in dispute was surrounded on two sides by Pucca roads. On its western side was the main Kotla Musa Khan Ahmadpur East Road and on the north of it was a road which linked the former road with the road leading to railway station. The area beyond two roads was covered with residential houses and other bulidings.
6. After considering the sale-deeds produced at the trial, which were found to pertain to the areas which were either within the disputed land or were very close to it, it was held that the land in dispute had definitely acquired Sakni character. For arriving at this finding, the learned District Judge had taken into consideration the factors that the area was within the municipal limits and was very close to the main roads and was also served by the civic amenities. There was evidence to show that the areas had been purchased for the purpose of construction of houses. The evidence of the purchasers P. W. 9, P. W. 10, P. W. 11, P.W. 18 and P. W. 34 was also considered in that behalf. Support was found for this purpose also from the fact that respondents Ali Muhammad and Allah Ditta had built their purely residential houses of the land purchased by them. According to the learned District Judge, in view of the evidence on the record it would have been unjust to calculate the compensation on the basis of its being an agricultural piece of land. The learned District Judge then threadoare examined 23 transactions relied upon by the interested persons in that behalf. It was observed that 14 of them related to the areas which lay within the acquired land while the remaining areas were within a distance of 200 ft. To three acres of the acquired land. According to him, therefore, the price previously paid for various parcels of the acquired land provided the best evidence for ascertaining the market value. He accordingly came to the conclusion that the market value at the time of the publication of the notification under section 4 of the Act was paisas fifty per sq. Ft. And that would have been the price which a willing seller might reasonably have expected to obtain from a willing buyer.
7. The second question, relevant for the purposes of these appeals, mooted before the learned District Judge was as to the effect of non-protest by some of the persons interested at the time of accepting the payments. The Court, on a perusal of Exh. D. 16 which was the payment schedule produced by the present Ippellants, found that all payments were made between the period 4-6- 1964 to 18-5-1967. It was further held that objections were filed much before even the first payment was made. He, therefore, came to the conclusion that filing of these objections was in itself an irrefutable evidence of the protest made by the persons accepting the payment. According to the learned District Judge, after having filed their objections before the Collector and praying for reference to the Court there was no need to make a formal protest at the time of accepting the payments. The objection raised on behalf of the appellants, therefore, was repelled.
8. The learned counsel in support of the appeals argued that the land acquired was rightly treated by the Collector as agricultural land and its market price correctly worked out on the basis of average price for five years and the learned District Judge had no jurisdiction to treat it as Sakni land and to work out the price on that basis.
9. After hearing the learned counsel for the parties and on perusal of the record with their assistance, we find that the objection raised on behalf of the appellants has no merit. We notice that the Collector based his award on the Ausat Panjsala (quinquennial average price) prepared by the Patwari purportedly on the basis of sale transactions between the year 1957 to 17th March, 1961. On careful scrutiny, however, we find that this Ausat Panjsala was worked out by the Patwari after taking into consideration amongst other, two Mutations Nos. 715 and 720. The former mutation was sanctioned on the basis of registered sale-deed dated 11-8-1952, while the latter was sanctioned on 12-9-1958 on the strength of registered sale-deed dated 26-1-1950. The actual sale transactions, therefore, bad taken place in the years 1950 and 1952. These sales which actually took place a decade earlier to acquisition could not thus have validly formed the basis for working out the average price of five years. Out of the rest, Mutations Nos. 724 and 726 were oral sales of 3 Kanals 19 Mathis and 1 Kanal respectively which took place in the years 1957 and 1958. The remaining Mutations Nos. 735, 738 and 733 were, respectively, dated 12-9-1958, 20-10-1959 and 28- 10-1960. While working out the Aural Punjsala the Collector did not advert to the relevant circumstances whether in this large Mauza stretching over 1 miles, the transactions related to adjacent or similar land. The position obtaining in the locality and immediate neighbourhood or the location of the acquired land was also overlooked. We may advantageously refer to the evidence of the appellants' own witness D.W. 3 who clearly stated that it he was unable to say at what distance from the land in dispute, the sales witnessed by these mutations were located.
According to this very witness, Mauza Wahi Qadir Dina was a big Mauza. He further adimitted that the area under acquisition was within the municipal limits and there was also an Ice Factory in existence there. The acquired area was surrounded by two roads and was near the railway station which was about two furlongs away. In view of the abovenoted features, we are inclined to hold that the five years' average was laconically worked out by the Patwari and mechanically relied upon by the Collector.. This could not have furnished a proper basis for working out the market value of the acquired land even on the consideration of five years' average. The Collector while treating the character of the land as agricultural remained oblivious of the true character and potential of the land by merely relying on a few mutations in a Town Committee without realising whether they could be truly reflective of the position obtaining in and around the area in question.
Therefore, in any case, the award given by the Collector would not fulfil the requirements of law and lacked the degree of fairness.
10. Now, we propose to deal with the objection of the appellants as regards the jurisdiction of the learned District Judge to determine the character of the land as Sakni while assessing market value under section 23 of the Land Acquisition Act, 1894, on the date of publication of notification under section 4 of the said Act. We must point out at the very outset that while awarding compensation quinquennial average price though constituting relevant piece of evidence is not by itself conclusive. The rule now firmly settled on a true interpretation of section 23 of the Lan Acquisition Act appears to be that market value should be determined on the criterion of the price what a willing purchaser would have paid for land to a willing seller after taking into consideration all other relevant and attending circumstances. The mere user to which the acquired land was being put may not in all cases reflect the true position. The Privy Council as far back as 1939, when construing the provisions of section 23 of the Land Acquisition Act, had laid down in the case of Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam (1) that there is not in general any market for land in the sense in which one speaks of a market for shares or a market for sugar or any like commodity. In the case of land, its value in general can be measured by a consideration of the prices that have been obtained in the past for similar quality and in similar positions, and this is what must be meant in general by 'the market value' in section 23 of the Land Acquisition Act. It was further observed that sometimes, (15 AIR 1939 P C 98 ' it happens that the land to be valued possesses some unusual, and it may be, unique features, as regards its position or its potentialities. In such a case the arbitrator in determining its value will have no market value to guide him, and he will have to ascertain as best he may from the materials before him, what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities. According to the Privy Council, the land is not be valued merely by reference to the use to which it is being put at the time at which its value has to be determined but also by reference to the uses to which it is reasonably capable of being put in the future. It is possibilities of the land and not its realized possibilities that must be taken into consideration. It was thereafter observed that in the case of land possessing the possibility of being used for building purposes, it would be permissible to consider the evidence of the price paid in the neighbourhood for the land immediately required for such purposes. It was then inter alia observed that the value of the potentiality must be ascertained on such materials as are available to the person charged with responsibility of deciding the matter without indulging in feats of the imagination. Where there is only one possible purchaser, the value should be the sum which is estimated on the basis that a willing purchaser will pay and not what a purchaser will pay under compulsion. The criterion of what a willing purchaser would have paid for the land after considering all the relevant factors has been upheld by the Supreme Court of Pakistan to be the correct one for determining compensation under section 23 of the Land Acquisition Act. Reference may be made to the decision of the Supreme Court in the case of Pakistan through the Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and another v. Malik Muhammad Aslam and S others (1). Next, we may refer to the decision of a Division Bench of this Court In re : Government of West Pakistan v. Subedar Muhammad Hussain and 3 others (2) wherein, after exhaustive analysis of the case-law it was ruled that potential value of land had to be taken into account irrespective of the actual use of the land at the date of expropriation and that in the wording of section 23 of the Land Acquisition Act, there is no such. Restriction or limitation. The contrary argument that such potential value of the land is not to be taken into consideration was, therefore, found to be without merit. To the same effect is the judgment of a Division Bench of this Court in the case of Province of Punjab v.
Muhammad Fail and others (3). The question of jurisdiction raised by the learned counsel for the appellants, therefore, must be repelled in the light of enunciation of law made in the aforesaid precedent cases.
11. Now, after having examined the legal position we may advert to the facts of the present appeals in order to determine whether the learned District Judge had correctly determined the character of the land in dispute as Sakni keeping in view its potential value and further whether the market value awarded was open to exception.
12. In so far as the first matter is concerned, it need not detain us long for the reason that out of the 23 sale-deeds relied upon by the persons interested (namely, Exhs. P. 5 to P. 16, P. 18 to P. 20 and Exhs. P. 34 to P. 40), 14 related to the area actually acquired whereas the remaining transactions were with respect to land located within a distance of 200 ft. To 3 acres from the acquired land. All these documents showed that these transactions
(1) 1978 SCMR5 (2) PLD 1970 Lab. 463
(3) PLD 1968 Lah. 1360 ' had taken place for construction purposes. There was also evidence to show that houses had been built on two plots purchased by the interested persons. The land was located within the municipal limits about few furlongs from the railway station and was surrounded at least on two sides by Pucca road. In the immediate neighbourhood, there were residential houses and other buildings. The area in question was also being served by civic amenities. The documentary evidence also found support from oral evidence of at least five P. Ws. In that behalf which remained unrebutted. Coupled, with this was the evidence of D. W. 3 who admitted that there was also an ice factory in existence, the acquired area was surrounded by two roads and was about two furlongs from the railway station. In our view, all these facts and circumstances go to show that the area had undergone a rapid change in character and its potential value was that of building sites though unconstructed plots were still bearing apparently agricultural look. The learned District Judge appears to us to be right in taking into consideration the potential value of the land and justified in treating it as Sakni.
13. We may in this behalf refer to the decision of this Court in Secretary of State v. Chuni Lal and others (I). In this precedent case, a piece of agricultural land had been acquired which was located toward the extreme end of the civil station and abutted on the road leading from the city to the cantonments. At the time of acquisition it was under cultivation but exactly opposite to it on the other side of the road there was a house and a number of Government and railway offices. There were also on the other side of the road Government buildings and Kothis at a short distance from the site in question. The Division Bench of this Court in these circumstances held that : "This being the situation of this plot, there can be no doubt that it had a special adaptability for being used for building purposes and in my opinin the learned District Judge has rightly treated it as a building site. It is no doubt true that at the time of the acquisition, it had not been built upon and was actually under cultivation. But as observed by Chatterji, J. In Hira Nand v. Secretary of State (1905) 21 P R 1905 =132 P L R 1905.
Where Government takes property from private persons under statutory powers, the Courts in computing the amount of compensation to be awarded to the person interested therein should be guided by the principle that the owner is entitled to have the price of his land fixed in reference to the probable use which will give him the best return and not merely in accordance with its present use or disposition."
The case of the respondents in the present appeals rather stands on a stronger footing. There is unrebutted evidence on the record to show that in the instant case some of the plots out of the land in question had been developed for residential purposes and the sale deeds tendered in evident in respect of various plots of acquired land showed that the sales were for construction purposes. The inference drawn by the learned District Judge was, therefore, based on proper appreciation of the material before hi and suffers no infirmity on the factual or the legal plane. The appellant had failed to bring on record any material evidence which could lend support to any of their contentions in this behalf.
(1) AIR. 1931 Lab. 207
14. In the facts of the present cases, we however feel that in so far as the determination of the market value is concerned, the character of the land is rather of an academic nature. The position would fair no better for the appellants even if the character of the land was to be taken as agricultural in the face of the evidence obtaining on the record. The market value in fact has been determined by the learned District Judge after relying upon transactions of sales of land from the year 1956 up to the year 1960, the notification under section 4 having been issued in the year 1961.
We find that the transaction witnessed by Exh. P. 36, dated 22-8-1956 showed that the price paid as far back as that date was paisas fifty per sq. Ft. The same is the position obtaining in respect of Exhs. P. 5 to P. 15 which are sales that took place from 18-6-1956 to 18-7-1960. All these transactions related to various plots of land located within the area acquired. Then there is sale witnessed by Exh. P. 16, dated 6-7-1960 relating to land at a short distance which was sold at the rate of paisas sixty-two per sq. Ft. The sale-deed Exh. P. 18, dated 15.6-1959 in respect of adjacent land was at the rate of rupee one per sq. Ft. The sale witnessed by Exh. P. 40, dated 24-6-1960 out of the land in dispute is also for paisas fifty per sq. Ft. There are two exceptions provided by sale-deeds Exhs. P. 20 and P. 34, dated 7-2-1956 relating to the disputed land measuring 13 Marlas each showing the rate of paisas thirty-seven per sq. Ft. The preponderance of evidence, therefore shows that the sale price of parcels of land within the land being acquired as far back as the year 1958 was paisas fifty per sq. Ft. And there is further evidence on the record to G show that in subsequent years, as is the position in the case of Exh. P.
18. It was sold at the rate of rupee one per sq. Ft. In the locality. Even if it were to be the case of the appellants that the price remained rather static the determination of market value at the rate of paisas fifty sq. Ft. Would appear to be reasonable and just. We nave, therefore, no hesitation in concurring with the finding of the learned District Judge determining the fair market value of the acquired land at fifty paisas per sq. Ft. This, thus, closes the chapter in so far as the question of determintion of market value is concerned.
15. This now brings us to the next ground urged at the hearing by the learned counsel for the appellants on the strength of second proviso to subsection (2) of section 31 of the Land Acquisition Act. The learned counsel argued that respondents accepted the amount of compensation awarded by the Collector without protest and subsequently filed applications under section 18 of the Land Acquisition Act for reference to the learned District Judge, Bahawalpur, who assumed the jurisdiction contray to law. It was further submitted that condition precedent to the assumption of jurisdiction by the learned District Judge was that the respondents (persons interested) should not have accepted the award but in the present cases the respondents had done so and thus the Court committed excess of jurisdiction in giving the award.
' We pointed out to the learned counsel for the appellants that the first limb of his argument appeared to be based on a wrotig assumption as to material facts as was borne out from the record. It was uncontrovertible position established on the record that the Collector gave his award on 24-6-1963 while the applications under section 18 of the Act claiming references were filed by the persons interested on various dates between 31-7-1963 to 5-9-1963, whereas the compensation awarded by the Collector was received by interested persons between the period 4-6-1964 to 18-5-1967 as was evident from a perusal of Exh. D-16 (the payments schedule). It was subsequent to forwarding of the references to the Court and even after the learned District Judge bad assumed jurisdiction in the matter that some of the persons interested while receiving payment of compensation awarded by the Collector did not formally write "under protest" while the rest did so.
16. The learned counsel for the appellants in the face of this patent position on the record was unable to deny that the respondents had not accepted payments from the Collector before filing applications under section 18 but received the same during toe post reference stage in the course of the proceedings before the Court. The learned counsel finding himself in a predicament then argued that the award of the Court was nevertheless without jurisdiction as the references were incompetent in view of rigours of second proviso to section 31 (2).
' On behalf of the respondents it was urged that since none of the interested persons had either accepted the award of the Collector or received payments offered by the Collector before filing objections to the award and claiming references for determination by the Court, there arose in the circumstances no question of their cases falling within the mischief of the said proviso. According to the respondents, the references were not incompetent because all the conditions precedent for a valid reference were fulfilled in these cases. According to the learned counsel appearing for the respondents, the proviso was not designed to cover cases in which payments had not at all been received by the interested persons before filing of application under section 18 of the Act and the Collector had himself forwarded the references on finding them to be in order and the Court after assuming jurisdiction in the matter had embarked on adjudication and inquiry. It was further argued that the conduct of the respondents at subsequent stages in accepting the compensation awarded by the Collector without formally writing on the receipt register "under protest" was not such as would amount to waiver of a statutory right. The right after once having been legitimately exercised could not be defeated by remote inferences from subsequent events by travelling backward to a stage which stood crossed long ago and thus their cases were beyond the pale of the second proviso being pressed into service by the appellants.
17. We may for the facility of reference quote the relevant statutory provisions. Section 18 of the Act reads thus :- "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 !And, 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.
' Thereafter section 20, as it stood at the relevant time, may be noted which is as follows :- "20. Service of notice.-The Court shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely :-
(a) the applicant; (b)all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and
(c) If the objection is in regard to the area of the land or to the amount of the compensation, the Collector.
' Then section 31 reads as under :- "31. Payment of compensation or deposit of sum in Court.-(1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to tnem unless prevented by someone or more of the contingencies mentioned in the next subsection.
(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 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."
18. We would now deal with the second point raised by the appellants in so far as it is based on the plea of acceptance of the award by the respondents. On analysis of the provisions of section 18, it has to be observed that it confers a valuable right on and provides a remedy for persons interested to require the Collector to refer their objections to his award for the determination of the Court, whether those objections be to the measurment of the land, amount of compensation, the persons to whom it is payable, or apportionment of the compensation among the persons interested. The exercise of this right is pre hedged by conditions precedent on fulfilment of which conditions alone depends the validity or coinpetence of the reference claimed which are that (a) person interested should not have accepted the award; (b) there should be a written application given to the Collector for the purpose; (c) the objections of the person interested should conform to those listed in subsection (1); and ( ;) the application should state the grounds on which objection to award is taken. The question of prescribed limitation within which such an application can be filed is presently not in point. These are requirements which go to the root of the matter and these must be substantially complied with. We may refer here advantageously to the weighty observations of the Judicial Committee of the Privy Council in the case of Nosserwang v. Mir Mynoodn Khan (1), wherein it has been
(1) 6 M I A 134 ' laid down that wherever jurisdiction is given by an Act of Parliament and such jurisdiction is only given upon certain specified terms contained in the Act itself, it is a universal principle that these terms must be complied with in order to create and raise the jurisdiction. If they be not complied with, the jurisdiction does not arise. It appears to us that this valuable statutory right of the citizens whose lands have been acquired compulsorily to agitate the matter for award of fair compensation or redress of other grievances recognized by law through the intervention of the Court, is not an absolute or unbridled right as is evident from the built in pre-conditions laid down in the very provision conferring the right and the remedy. For the purposes of the present cases, it would suffice to observe that the appellants could succeed in their objection by showing that the respondents were persons interested who had accepted the award and thus one of the essential pre-conditions not being fulfilled, the applications filed thereafter were incompetent and the Collector could refuse to make the references or if made the Court should have thrown out the same being invalid and incompetent.
19. The question to be answered precisely is whether in the facts and circumstances of these appeals it can reasonably be said that the respondents (persons interested) accepted the award of the Collector so as to extinguish the rights and the remedy conferred and provided by section 18 of the Act. It has to be borne in mind while examining the proposition under consideration that this section has not by itself defined or explained as to what constitutes acceptance of award nor spelt out in clear terms what acts of omission or commission or conduct on the part of a person interested would amount to acceptance or non-acceptance of the award. The matter, therefore, can be best answered by examining the facts of each case and on drawing proper inferences therefrom. In order to construe the import of the word `accepted' one has, therefore, to have resort to ordinary dictionary meanings. We propose doing so.
The word 'accept' as per the Concise Oxford Dictionary (New Edition means- "consent to receive (person, something offered); answer affirmative! (invitation, suitor): tolerate; submit to (accept the umpire's decision); receive as adequate or valid. . . . .
' Again, in Black's Law Dictionary (Fifth Edition), the word 'accept' has been explained to mean- "to receive with approval or satisfaction; admit and agree to; concede to or consent to; receive with approval ..."
' On proper construction of section 18 and on appreciation of the fact and circumstances of these appeals, it appears obvious to us that the respondents could not be dubbed as being guilty of submitting to Collector's award or receiving the same with approval or satisfaction so as to amount to their acceptance of it and thus precluded from filing applications under section 18 of the Land Acquisition Act, 1894 o subsequently to have the references determined on merits in accordance with law. The respondents indeed bad done no such acts as could be construes by the Collector or the Court to amount to consent or to receive as adequat or valid the money offered by the Collector so as to attract the bar contain in section 18 itself. On the contrary not only the respondents did not acre? The Collector's award but being dissatisfied raised objections thereto and stated the grounds for such objections. They also did not, before exercising their rights, factually receive the compensation amount offered by the Collector as per his award but instead filed applications before him requiring him, inter alia, to refer their objections to the compensation awarded for determination by the Court. In this set of circumstances, it is not possible to accept the contention that the respondents bad in any manner demonstrated their intention to accept the award and they thereby lost statutory right or remedy to receive enhanced compensation as determined by the Court for their acquired lands. We are inclined to hold that the applications under section 18 submitted to the Collector for references were competent and validly made. In such a situation, the Collector was left with no alternative but to refer the matter on such applications being made within the period prescribed by section 18 and being also not barred by second proviso to section 31(2) of the Act. Jagarnath Lall v. Land Acquisition Deputy Collector, Patna (1). The Collector himself construed the position in no different manner by actually forwarding the references to the Court for determination.
' As regards the assumption of jurisdiction by the Court, the position which had to be examined by it at the time of taking cognizance of the references, therefore, was whether on the date of the institution of the applications under section 18 of the Land Acquisition Act or on receipt of references by the Court, they were incompetent for non-compliance with the statutory conditions precedent or barred by limitation or the bar contained in second proviso to section 31(2) of the said Act. If the references forwarded by the Collector were found in breach of any of the pre-conditions spelt out by section 18 or hit by statutory bars against institution of the applications, the Court too would be obliged, after holding them to be incompetent and invalid, to dismiss them, of course, after hearing the applicants and those opposing them. These statutory bars would correspondingly determine the jurisdiction of the Court to proceed with determination of the references on merits. There being no such element present in the cases under consideration.
Placing a clog in the way of determination of references, no fault can be found with assumption of jurisdiction by the Court. The argument as presented by the learned counsel for the appellants thus merits rejection.
20. It still remains to examine the effect of subsequent events pointed out on behalf of the appellants in the course of the proceedings for adjudication of objections. After deep thought we are of the considered view that these events are of no effect and cannot render void the competently instituted applications and validly forwarded references by the Collector to the Court which lawfully assumed jurisdiction. We find no warrant in law for the proposition canvassed in the absence of some legal provision being cited which was designed to achieve such a result. The proceedings before the Court are to be conducted and references decided in accordance with the Civil Procedure Code except to the extent of inconsistency between the Code and the land Acquisition Act. No provision in the latter law could be cited by the learned counsel to achieve the desired result apart from the argument based upon section 31 of the Act which aspect of the matter has been found not applicable to the post-reference proceedings as held by us in other parts of this judgment. Therefore, on no reasonable hypothesis this Court has felt persuaded at first to give an artificial colour to a provision of the Act and then to stretch it basic to render the very institution as incompetent or to deprive the tribunal or the Court of their undoubted jurisdiction. The principle that the jurisdiction of
(1) AIR 1940 Pat. 102 (S. B.) a Tribunal is determinable at the commencement and not at the conclusion of the inquiry is well- summed up by the learned Supreme Court In re: Settlement and Rehabilitation Commissioner v.
Manuu Khan and 3 others (1).
21. It must not be overlooked at the same time that the Land Acquisition Act is designed to deprive citizens of their valuable rights in property through a somewhat coercive measure by the State exercising authority under a statute. The provisions of the Land Acquisition Act, therefore, are to be strictly construed and are not to be given an artificial meaning, loose construction or unnecessarily stretched to the prejudice of the citizens contrary to the spirit and the scheme of the statute. The respondents not having accepted the award of the Collector during the pre-reference period, their subsequent act of acceptance of the compensation offered to them by the Collector without formally writing at that time "under protest" during the advanced stages of determination by the Court, cannot be construed as or equated with acceptance of the Collector's award in terms of section 18 of the Act. The Court cannot close its eyes to the realities demonstrated by the conduct of persons interested in lodging their protest earlier against the Collector's award and listing their objections and demanding fair compensation as determined by the Court. What else can be construed as a protest. In the case of Meyer v. Clark (2) as per Black's Law Dictionary (Third Edition), "protest" was held to mean a formal statement, usually in writing, made by a person who is called upon by a public authority to pay a sum of money, in which he declares that he does not concede the legality or justice of the claim or his duty to pay it, or that he disputes the amount demanded; the object being to save his right to recover or reclaim the amount, which right would be lost by acquiescence. Thus, taxes may be paid under "protest. The same would appear to hold good in a converse situation where an amount is to be received under protest and the receiver who acquiesced would lose the right to claim more subsequently. We agree that this is done usually in writing but it is not an invariable necessity. The Land Acquisition Act does not ordain receipt under protest in writing. It is a matter of inference from the facts and circumstances of a given case. Even if it be assumed to be a requirement to be expressed in writing then the same appears to have been met through written objection in applications under section 18 of the Act, thereby negating all chances of holding the respondents guilty of acquiescence. It could be that a person interested orally stated before the Collector that he would receive the money under protest and this fact was recorded by him. Such a person could not reasonably be held to have thus lost his valuable right.
The same inference N can be drawn from the demonstrative conduct of a person interested and mere reliance regarding his hidden state of mind would not suffice. That is not the situation obtaining in the facts of the present appeals.
22. The learned counsel for the appellants himself appears to be treating the expressions "accepted the award" and "consented to receive payment" as somewhat synonymous terms. It could be legitimately argued that in cases covered by sections 18 and 31(2), a person who receives payment in silence and with satisfaction without anything more would be being so without protest and thus demonstrated acceptance of the award. This would be fatal to his subsequent institution of application claiming reference or to the demand for forwarding of such incompetent reference as per the scheme of the Land Acquisition Act. There are, however, to be found no deeming provisions incorporated in the statute to achieve the same result in respect of even those cases where no such things were dome but persons interested received payments of money offered to them long after registering their objections when the
(1) 1973 SCMR 1962 (2) 2 Daly (N Y) 509 ' stages contemplated by the law to attract the statutory bars were over. In the facts of the present cases, it is difficult to accept the plea that the conduct of some of the respondents, objected to by the appellants, in accepting payment, under the circumstances already noticed by us, during the pendency of the post-reference proceedings, when even the stage contemplated by section 20(00 had tong been passed, could either render a reference validly made and entertained as incompetent ab initio or debar the persons interested of their right to receive fair compensation as per determination by the Court or deprive the Court itself of jurisdiction to adjudicate upon the matters in dispute and finally decide them on merits.
23. After having examined the various aspects in the preceding paragraphs, it still remains to evaluate in depth the impact and effect of section 31 of the Land Acquisition Act, and in particular the fast and second provisos to its subsection (2), on the fate of present appeals.
' Learned counsel for the appellants while trying to support his objection based on section 31, felt contented by reading out the first and second provisos to subsection (2) of this section. He then stressed on plain reading of these provisos that those of the respondents who received payments offered by the Collector otherwise than under protest thereafter lost entitlement to make any application under section 18 of the Act. We can enter no cavil with this statement in so far as it goes. The legal position stands authoritatively settled by the learned Supreme Court of Pakistan by enunciating the law In re: Ghulam Muhammad v. The Government of West Pakistan (1). This argument, however, would be of no avail to the appellants because none of the respondents had been guilty of such a conduct, i. e. Receiving payments first without protest and thereafter filing applications under section 18.
' In the present appeals, the learned counsel has raised rather a different question. He argued that even those of the respondents who received payments, according to him, without protest, at the subsequent stages when the Court was in the process of determining the objections to the award, would be equally hit by the rigours of second proviso and consequently the references were liable to be thrown out as incompetent and invalid and furthermore, the Court itself stood denuded of the jurisdiction to decide them. After giving deep consideration to the proposition in the form in which it has been canvassed before us on behalf of the appellants, we are firmly of the view that it lacks total merit for a variety of reasons. The learned counsel appearing for both the sides stated at the Bar that there were available no direct precedents from Pakistani jurisdiction as regards the import and applicability of the provisos to section 31(2) to those cases where payments were received by persons interested after the references on being validly submitted to the Court were being determined by it. No precedents were, therefore, cited On this point. We considered it desirable, therefore, to ourselves took up the available case-law and to examine the matter in some detail by recording elaborate reasons for our opinion.
24. First of all, we feel that the learned counsel for the appellant is not well-advised in undertaking the exercise to grapple with the few words employed in a proviso to a subsection of the statute in isolation or vacuum ignoring its context or the provisions which precede or follow it. This somewhat perilous exercise has many pitfalls. The proper and indeed, desirable course to follow is, where necessary, to construe the enactment as a whole
(1) PLD 1967 SC 191 ' and examine the provisions being mooted in their proper context. Every word has to be given its due meanings. The task of interpretation of statutes appears to us designed to achieve the sole purpose of discovering the true intent of those who made it. When travelling in that direction it undoubtedly would be of great assistance to the Court for proper construction to ascertain and keep in view the real object and purpose sought to be achieved by the Legislature by enacting that provision.
25. In the above light, we would like to undertake the detailed examination of the provisions of section 31 of the Act. The section is found placed in Part V of the statute under the heading "Payment". Its subsection (1) makes it obligatory for the Collector on making of an award under section 11, to tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and it further obliges him to pay it to them unless prevented by someone or more of the contingencies mentioned in subsection (2). A reading of subsection (2) further brings out that if a person interested entitled to compensation of money being offered by the Collector does not consent to receive it (other factors listed in the main part not being relevant for these appeals), then the Collector in obedience to the law to deposit such amount of the compensation in Court to which a reference under section 18 would be submitted.
The overall scheme of section 311 makes it abundantly clear that this section applies to a stage before the reference application has been filed and forwarded to the Court. The legislative intent appears manifest from the use of underlined words and also from the nature of the consequences spelt out by the second proviso itself.
It is thereafter that two provisos have been introduced to the main subsection (2). The first proviso then lays down that any person "admitted to be interested" may receive such payment under protest as to the sufficiency of the amount. In other words, it means that the persons interested entitled to receive compensation offered by the Collector as per his award who do not consent to receiving it under main part of subsection (2) of section 31 would be those who either actually did not receive the money being offered by the Collector or while receiving it at that stage demonstrated their protest by way of dissent or disapproval of the amount of compensation as per Collector's award. The object of such a declaration generally being to save the right conferred by the statute which would be lost to him if his implied consent could be made out. The effect of such a conduct would, therefore, be fatal to those receiving the amount offered without protest, i. e.
Denoting assent. These persons interested are thereby to be held to have lost entitlement to make any kind of application under section 18. It follows that if such persons in spite of it were to move applications thereafter, the same would be met by a plea of being incompetent and invalid institution on account of being hit by the statutory bar of section 31(2). The conduct or acts of omission or commission on the part of a person interested must be such as should be equitable with the "consent to receive it" as provided in the main part of subsection (2) and equally should amount to acceptance of the award as contemplated by section 18 of the Act. , Both these situations appear to bring about the same result. We may here refer to a decision from the Indian jurisdiction In re: Mrs. S. Thomas v. The Collector of Madras (I), wherein it has been held that the acceptance of an award under section 18 and the consent referred to in section 31(2) of the Land Acquisition Act connote the same idea and is an inference drawn from the same facts. When section 31 speaks of a receipt without protest as debarring a person for making further claims, the same
(1) AIR 19511 Mad. 186 ' Criterion must apply to the construction of section 18 and when admittedly the owner received the compensation awarded without protest it must be taken that he accepted the award.
26. However, in the facts of the present appeals, what needs to be determined is whether the rigours of the second proviso to section 31(2) of the Act would apply to a case after an application under section 18 had been moved, reference treated as valid and competent by the Collector and forwarded to the Court for the determination of objections raised and the inquiry was well in progress. After careful consideration of the relevant provisions and the spirit and the scheme of the statute, we have reached the conclusion that where the Legislature makes something permissible to be done in a given manner and also provides the consequences for its breach then the Court would give effect to that provision in accordance with the express intent of the Legislature without questioning the wisdom of the makers of the law. The matter would thus be judged not on general concepts or principles. The stage of offer of payment or receipt of compensation contemplated by section 31 clearly is one prior to filing of any application under section 18 by a person interested for claiming reference to the Court. This inference must flow from a combined reading of section 18 (which confers a right to claim reference) and section 31 which obliges the Collector to tender payment of the compensation awarded by him on making of an award under section 11. In the event of interested persons not consenting to receive the compensation amount, it is obligatory for the Collector under section 31(2), as is evident from the use of words "the Collector shall deposit" to deposit the amount of compensation in the Court. In the facts of the present appeals, the respondents had not accepted the award nor consented to receive the compensation offered by the Collector and as such the Collector was required to obey section 31(2) and deposit the compensation amount in the Court. Thereafter, no proper occasion arose for the Collector to make an offer of payment of compensation to the persons interested, in terms of section 31 itself. The section not having been obeyed, there equally arose no question of interested persons incurring a disqualification under or by virtue of it. ##T##
27. Now, examining the proposition in band from another angle, we feel that the second proviso to section 31(2), as it stands worded, merely precludes a person from filing any application under section 18 after he has without protest received the compensation offered to him by the Collector.
What the learned counsel for the appellants in asking us to do is to give artificial meaning to the said proviso and to stretch its scope to meet a situation not contemplated or designed by the Legislature to be covered by it. In substance, what he urged was that we should read the proviso in a manner as would bring about the result that even in cases where a person interested who did not accept the award and lodged his protest by way of objections thereto but during the pendency of the determination of his objections to the Collector's award and awaiting award of compensation by the Court, received payment of money without at that time formally writing "received under protests', the proceedings before the Court shall stand abated or terminated by the second proviso to section 31(2). If that were to be the intention of the Legislature, there was nothing to prevent it from stating in clear words an eventuality of this nature 1. e. Abating or terminating the judicial proceedings based upon a valuable right of a citizen. On the other hand, the Legislature has in unequivocal terms expressed itself by saying "shall be entitled to make any application under section 18". The result desired by the learned counsel cannot be schieved without first doing violence to the language of the statute and secondly, without good basis assuming it to be a case of casus omissus. Indeed, the learned counsel for the appellants were unable to cite before us any provision of the Land Acquisition Act reflecting legislative intent which could justify such a course. Therefore, the result desired by the learned counsel for the appellant cannot be achieved unless we were to make an inroad into legislative field which tendency the Courts have firmly eschewad while interpreting statutory provisions. We, therefore, see no warrant or justification for the purposes of the present appeals to add anything to plain words of second proviso to section 31(2) in order to be able to put the clock back to a pre-reference stage or to make the axe fall undeservedly on innocent necks for the purpose of bringing to a close the proceedings of references which at the time of the institution of the applications under section 18 and at the subsequent stage of assumption of jurisdiction by the Court were valid and competent.
The proviso cannot be given effect to in this manner.
28. We may further examine second proviso to section 31(2) in the light of the plain language employed therein. In cases properly covered by the second proviso, no person shall be entitled to make any application under section a8. The word `entitled' has no defined legal meaning. The expression "be entitled to" needs to be understood and explained. We are, therefore, called upon to construe the word "entitled". In the case of Meyers v. Hennell (1), the Court was required to construe a provision which stated that "no nominated or co-operative manager shall be entitled to act as a foundation manager unless he had signed a declaration that he is a member of the Church of England". Eve, J. Observed-"I think the words 'be entitled to' do qualify the nature of the prohibition...And that they are used as equivalent to the words 'be qualified to'. In the present cases as well, we are of the opinion that a person who receives payment without protest before making any application under section 18 would not thereafter be qualified to make such an application. It cannot therefrom reasonably follow that at the relevant time when these applications under section 18 were moved, despite the fact that the applicants were qualified to move them, the subsequent events would retroactively wipe out that qualification in the absence of clear words to that effect employed by the Legislature in the statute.
29. Now, we may examine the same proposition in a rather broader perspective in the light of the facts and circumstances admitted or proved on the record. We feel that the respondents at first while not accepting the award had raised their objections to it and also stated the grounds for the objections. They had asserted their right to require a reference for determination by the Court. The applications were competently entertained and lawfully forwarded. The respondents bad clearly expressed their dissatisfaction and disapproval of the Collector's award and then claimed more compensation. In such a set of circumstances, the entire conduct of the respondents cannot even by implication be inferred to amount to consent, acceptance of award or conscious waiver of their existing rights. A party which has filed objections to the award of the Collector on ground of inadequate compensation can, by no plausible process of reasoning, be treated as the one accepting the award. The concept of protest and consent and satisfaction, in our view, cannot go together. It would, therefore. Appear to be unjust to adopt an interpretation which would have the effect of visiting the respondents with a penalty which they had not earned. It is z well-settled by now that the provisions of the Land Acquisition Act are to be
(1) (1912) 2 Ch. 256 ' strictly construed and even if there are two interpretations possible, one favouring the citizen should be adopted. We have kept in view this rule in repelling the appellant's contention. ##T##
30. We find support for the view taken by us from the enunciation made by the learned Supreme Court in the case of Ghulam Muhummad. The Court speaking through Hon'ble Mr. Justice Hamoodur Rahman held :- "Reading this proviso alongwith section 18 it will appear that a person, who has taken payment without protest, must be deemed to have waived his objections to the award, if any, and cannot thereafter claim a reference under section 18. The opening words of section 18, subsection (I), also seem to indicate that only a 'person interested who has not accepted the award' may require that the matter may be referred by the Collector."
' A little later in the judgment it was also observed :- "He has now filed a petition to say that no such application was made, but a copy of the receipt granted at the time that the cheque was received from the Court has heen filed by Government. It does not, as already stated, show that the money was withdrawn under protest. The second proviso to section 31(2) is, therefore, fully applicable and would appear to constitute a bar to the appellant's right to now claim a reference under section 18, for, he can no longer be treated to be a person interested who has not accepted the award."
' It seems obvious from the enunciation made by the Supreme Court quoted above that a person after having, received the money awarded by the Collector without protest would be treated as having accepted the award and "cannot thereafter claim a reference under section 18". And that the second proviso to section 31(2) would in such a case fully apply and appear to constitute a bar to such a person's right "to now claim a reference under section 18". The word "now" is very significant because in the precedent case compensation was first received without protest and thereafter application under section 18 filed and reference was being claimed subsequently. We may here also refer to a decision from Indian jurisdiction in the case of Amar Singh v. Union of India
(1) where section 31 of the Land Acquisition Act was in force in the same form as in Pakistan. The Delhi High Court while interpreting this provision of law observed as under t At the time the present petitioner preferred his application under section 18 he had not accepted the payment of compensation either with or without protest, nor had he done anything to show that he ' had accepted the award. His application for reference was, therefore, perfectly valid. After having applied for the reference, it was certainly not necessary for the petitioner to subsequently endorse expressions of his protest against the award on every occasion or on every material paper coming up before the Collector or the Court. The second proviso to subsection (2) of section 31 of the Act which has been relied upon by the Court below only applies to those cases where before the making of the application for reference "party receives the amount without registering protest.
But obviously the proviso is not attracted to a case where the application for reference has already been made. In such cases it cannot be said that the acceptance of the compensation amounted to acceptance .Of the award and the party had waived his
(1) A t R. 1974 Delhi 34 right to apply for its enhancement by reference to the Court. In this case the receipt of the amount is certainly subject to the application for reference moved by the party."
31. We have considered it unnecssary to examine the scheme of section 20 of the Land Acquisition Act for the purposes of the present appeals in depth and detail as the stage contemplated by it stood crossed when payments were received by the applicants. Suffice to observe that, prima facie, applicants are not designed to be non-suited and rather it is obligatory for the Court under clause (a) of section 20 to serve notices on such persons. It does not appear to be the legislative intent to condemn a person unheard even if the objection be regarding the competence of the proceedings instituted. The persons contemplated by clause (b) would be "persons interested in the objection", of course, of the applicant. Such persons would thus appear to be those other than the applicant and include those who wish to oppose these objections. We would, leave this question open for examination in a suitable case as and when it properly arises.
32. Before closing, we may now advert to a further question whether the respondents can legitimately be accused of waiver of their right to have their objections on pending reference determined by the Court. As per Corpus Juris Secundum (Volume 92) at page 1040, the word "waive" is defined generally as meaning to relinquish ; to give up claim to ; to throw away ; to cast off ; to desert ; to give up, to abandon, and relinquish ; to put off, to put aside for the present, or omit to pursue'. The same word, as used in Law, has been construed to mean 'to relinquish intentionally a known right or intentionally to do an act inconsistent with claiming it ; to relinquish voluntarily a right which one may enforce if he chooses; to relinquish (a right, claim, or contention) either by express declaration or by some, intentional act which by law is equivalent to this ; to renounce, to repudiate or to surrender a claim, privilege, or right'. As used in old English Law "waive" means `to forsake; to desert; to abandon'. Next, while dealing with the word "waiver" (at pages 1041 to 1043) it is stated thus - "it has been said that the most concise, and the most frequent, common, and generally accepted definition is that waiver is the intentional relinquishment of a known right, or the voluntary relinquishment of a known right, or conduct such as warrants an inference of the relinquishment of a known right ; it involves the voluntary relinquishment of some known right which is at the time available."
' Keeping the above in view and adverting to the facts of the present appeals, it cannot reasonably be said that the appellants by accepting the payment at a stage when the references were under adjudication by the Court had, by conduct or otherwise, done any act which warranted an inference of voluntary relinquishment of a known right which was at that time available to the appellants. The respondents indeed, as has already been observed, had not accepted the award in terms of section 18 of the Act. They had not consented to receive the payment of compensation offered by the Collector in terms of section 31(2). Instead, they had while not accepting the award demonstrably raised objections to the compensation offered by the Collector and stated reasons therefor. The Collector had forwarded the references finding the same to be valid and the Court had taken seizing of the matter and proceeded with the determination of the references being fully conscious that the respondents were protesting against the award and were dissatisfied with the money offered to them and they were asking for enhanced payment of compensation to be determined by the Court. The right in existence at that point of time was the right to have the references determined in accordance with law. There is not an iota of evidence or circumstance to suggest that they had any intention to relinquish that right or to omit to pursue the reference proceedings. Indeed, they contested those proceedings to the end and led evidence both oral as well as documentary. Therefore, the inference is irresistible that all the circumstances are a pointer to the fact that the respondents had not the remotest intention of waiving their right. The respondents in these appeals are rustic people belonging to a far flung backward area. They should be given the benefit of men of ordinary prudence in construing the provisions of second proviso to section 31(21 of the Act in the form in which it stood. It will be too much to expect of them to have desisted from accepting payments at belated stages when the second proviso did not any more appear to govern the proceedings.
33. We do not feel it necessary to multiply reasons as sufficient has been said to show that the provisions of second proviso to section 31(2) of the Land Acquisition Act are of no avail to the appellants and are of no legal effect on the competence of reference proceedings determined by the Court.
34. In our view, therefore, the learned District Judge was right in repelling the objection of the appellants by not throwing out the proceedings on references in the facts and circumstances of the case.
35. No other point was urged at the hearing.
36. The net result is that the impugned judgments are maintained and these appeals fail and are hereby dismissed. There will, however, be no order as to costs as somewhat novel law points requiring consideration were raised.