HASSAN IMDAD vs DEPUTY COMMISSIONER/COLLECTOR, LASBELLA

' ZAKAULLAII LODI, Acrid. C.

3.-By this judgment we propose to dispose of R. F. A. Nos. 4, 5, 6, 7 and 8 of 1980, 4, 5, 6, 7 and 8 of 1981 and R. F. A. 1 of 1982 filed by various land-owners whose lands have been acquired (hereinafter called "Private Appellants") as well as Cross Appeals filed by the Government of Baluchistan bearing Nos. R. F. A. 9 of 1980 (corresponding to R. F. A. 4 of 1980), 10 of 1980 (corresponding to R. F. A.

5/80), 11 of 1980 (corresponding to R. F. A. 6 of 1980), 12 of 1980) (corresponding to R. F. A. 7/80) 13 of 1980 (corresponding to R. F. A. 8/80), 11 of 1981 (corresponding to R. F. A. 4/81), 10 of 1981 (corresponding to R. F. A. 5/81) 9 of 1981 (corresponding to R. F. A. 6/81), 12 of 1981 (corresponding to R. F. A. 7/81), 13 of 1981 (corresponding to R. F. A. 8/81) as they pertain to common lands and raise identical questions of law and facts. The Government has, however, filed no appeal against the order passed in R. F. A. 1 of 1982.

2. Briefly the facts forming background of these cases are that the Government of Baluchistan intended to establish a fairly large industrial area at Hub, District Lasbella about sixteen miles from Karachi, for which they required land so that the same could be developed and sold away through the Industries Department to the persons interested in installing industry. They accordingly decided to acquire agricultural land measuring about 918 Acres in village Tatra' quite close to the Hub Town and the R. C. D. Highway. The Collector, Lasbella was accordingly directed to proceed in the matter who issued notices under sections 4 and 9 of the Land Acquisition Act, 1894 (hereinafter 'called the Act of 1894) on 24th June, 1979 and 5th April, 1979 respectively to the private appellants. Persuant to such notices, the appellants appeared before the Collector and submitted their demands as to the price of the land which in certain cases was Rs, 40,000 per acre. In some other cases, it was Rs, 90,000 pre acre. They, however, did not object to the acquisition.

3; The Collector heard the appellants and fixed the price of the entire land at a uniform rate of Rs, 5,000 per acre and also awarded statutory allow Ance of 15%, besides compensation for houses and trees etc. Feeling aggrieved by the amount of compensation so fixed by the Collector, the private appellants applied to the Collector to refer the matter to the Civil Court for determination of reasonable compensation. Upon this a reference was made to the District Judge, Khuzdar for decision of the case. He issued notices to the parties, obtained their pleadings, recorded the evidence of both the sides and awarded an increased compensation of Rs, 25,000 per acre in Appeals Nos. 4, 5, 6, Rs, 30,000 or in Appeals Nos. 7 and 8 of 1980 treating some of the land as "Sikni" and Rs, 20,000 per acre in Appeal Nos. 7/81, 8/81, 4, 5 and 6 of 1981 while his successor in office maintained the amount of Rs, 5,000 per acre in Appeal No, 1 of 1982. The private appellants are aggrieved firstly by the amount of compensation fixed by the District Judge on the ground that it was extremely inadequate and, therefore, unreasonable and also on the ground that he had omitted to award the allowance permissible under subsections (3), (4) and (6) of section 23 of the Act of 1894. Further the objection is that he had awarded interest from the date of taking over possession of the acquired lands and not from the date of the notices issued under sections 4 and 9 ; and that he had also failed to award the statutory allowance as envisaged by section 23(2).

They have also prayed that the amount of compensation be increased to the amount claimed by them I e. Rs, 40,000 and Rs 90,000, respectively and Rs, 10,000 per acre for diminution of profits, all from the date of notification under section 4 plus costs.

4, The Government of Baluchistan has also filed cross-appeals in all the cases except in R. F. A. No, 1 of 1982 as it also felt dissatisfied by the order of the District Judge, Khuzdar on the ground that the increase in the compensation made by him from Rs, 5,000 per acre fixed by the Collector to Rs, 25,000 and 20,000 per acre was unreasonable and that the same deserved to be reduced to the original amount of Rs, 5,000 per acre.

5. It may be mentioned here that in the vicinity of the land which I shall be presently describing in detail, vast tracks of land had already been purchased by various industfialists and industries had also been set-up in many a case, or the work was in progress by the time the disputed land was acquired. It may also be mentioned with pertinence that the introduction of an industrial area at Hub was certainly a costly affair for the Government of Baluchistan as it meant the provision of hitherto nonexistent facilities like water, electricity, roads and other infrastructure required for industry and adequate administrative machinery which too carried heavy cost. This phenomenon definitely has reference to the apparent high price charged by the Industries Department, for this very land when after development it was offered to the purchasers. We would deal with this question at a proper place.

' Before proceeding further, however, I may give in suitable detail the quantum of lands involved in each case, the amount of compensation claimed by the relevant appellant for the same and the amount of compensation allowed in each case.\ {{TABLE}} d Survey Amount of Compensa- Date of Z Case No, No, Area compensa- tion awarded judgment tion claimed 4 5 6 Rs, Rs, 1 R. V. A. 4/80 553,554 74-1.13 40,000 25,000 6-4-1980 Cross Appeal and 555 per acre per acre No, 9/80 2 R. F. A. 5/80 531, 534 75.2-24 40,000 25,000 do Cross Appeal and 536 per acre per acre No, 10/80 3 R. F. A. 6/80 551 13-2-15 40,000 25,000 Cross Appeal per acre per acre No, 11/80 4 R. F. A. 7/80 567 67-3-25 40,000 30,000 Cross Appeal per acre per acre No, 12/80 5 R. F. A. 8/80 96, 567/1 47-3-17 40,000 30,000 Cross Appeal of 715/1 per acre per acre No, 13/80 6 R. F. A. 4/81 763 23-3-9 40,000 20,000 30-4-1981 Cross Appeal per acre per acre No, 11/81 7 R. F. A. 5/81 712/1 48-0-17 40,000 20,000 30-4-1981 Cross Appeal per acre per acre No, 10/81 spasom...Wwww.......=1111 iMmEr ....m........

1 2 3 4 5 6 n 8 R. F. A. 6/81 715 48-1-12 40,000 20,000 30-4-1981 Cross Appeal per acre per acre No, 9/81 9 R. F. A. 7/81 86-3-22* 90,000 20,000 24-5-1981 Cross Appeal per acre per acre No, 12/81 10 R. F. A. 8/81 040, 084 89-1-38 90,000 20,000 24-5.1981 Cross Appeal per acre per acre No, 13/81 11 R. F. A. 1/82 816, 817 21-24 No specific 5,000 13-12-1981 No Cross and 775 claim per acre Appeal filed {{TABLE}}

6. In all the appeals of the private appellants the main ground urged before us was that the District Judge, Khuzdar had failed to appreciate the basic principles governing the assessment of the amount of compensation and has, as such, failed to grant reasonable compensation for the acquired lands as also the fringe benefits (referred in Para. 4) and that in this context the evidence led by the appellants to prove the market value of the lands in the vicinity of the acquired lands during the same period was not considered. On the other hand, the contention of the learned Advocate-General is that the claim of the private appellants was grossly exaggerated and that the learned District Judge failed to appreciate the evidence on record while raising the amount of compensation over and above Rs, 5,000 per acre fixed by the Collector, Lasbella.

7. Several ancillary grounds were also raised by the learned Advocate-General who firstly contended that these cases were not, in fact, governed by the Act of 1894 rather the law applicable to them was Acquisition of Land (Housing and Development Schemes) in the Rural Areas Act XVIII of 1974 (hereinafter referred to as the "Act of 1974"), as such, the entire proceedings were untenable in law.

8. He next contended that if it was to be presumed for the sake of arguments that the case was covered by the Act of 1894, then failure of the District Judge to invite objections from the general public (specially the Industries Department) within the meaning of section 20 rendered the entire proceedings legally incompetent.

9. He also contended that the reference made under section 18 of the Act of 1894 was barred by time in R. F. As. 5, 6, 7 and 8 of 1980 and 7 of 1981 as such, the proceedings before the District Judge were ab initio void. Although the learned Advocate-General attempted to argue the ancillary points referred to by us in Paras. 7, 8 and 9 above, but in fact it was not done seriously as the focus of the parties' counsel was on the point of quantum of compensation. However, since these points had been argued before us at some length, therefore, we would like to dispose them of first.

10. The first objection raised by the learned Advocate-General in the Cross Appeals was with regard to the jurisdiction of the Courts under the Act of 1894. He contended and the Act of 1974 enacted for the Province of Baluchistan substituted the Act of 1894 as such the task of the acquisition of land could be taken in hand under this law alone. The Act of 1974 has different approach to the issue and has different scheme and procedure. We are not, however, impressed by this argument. In fact the plain reading of the Act of 1974 makes it crystal clear that this Act is not all pervasive. It has been enacted to enter for a special field of Housing and Development Schemes in the rural areas and does not, therefore, appear to have replaced the Act of 1894, whose field of activity is very wide. Mr. S. H. Rizvi, appearing for the private appellants referred us to the nomenclature of the Act of 1974 and explained in the light of Muhammad Arshad Khah V. J. P. Coats Pakistan Ltd. Karachi and 2 others (1), that although the word "And" is used in the nomenclature of the Act conjunctively, but in certain cases, it is to be read as disjunctive in order to give correct and logical interpretation to a Statute. He further submitted that as this law was enacted only to make a provision for acquisition for land for housing schemes and such other development schemes as may be connected therewith, therefore, the word "Development" should not be allowed to mislead by stretching its meanings too far. In short according to him, the Act of 1974 was meant to cater for the housing schemes made in the Province and not for any other kind of development, such as, industrial development etc. Which is altogether a different field. In fact, the preamble when read with section 3 of the Act of 1974 would further confirm this position that it does not transgress on the field occupied by the Act of 1894, rather it specifically spares that field. It is thus manifest that both these laws are to operate side by side in their respective fields ; namely one in the Housing and Development connected therewith and the other in the left over field .

11. It was next contended by the learned Advocate-General that the proceedings drawn by the learned District Judge were without jurisdiction as no notice as envisaged by section 20 of the Act of 1894 was given by him to the general public. We specifically enquired from the learned Advocate-General as to who else could be the interested party in these cases so as to know whether any party including the Government had been prejudiced by being left out, and his reply was that the Industries Department should have also been served with a, notice. The relevant section 20 may be reproduced below for reference :-- "Section 20.-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."

It is clear that the provision of notice has been introduced with a view that while the case is being decided by the Court, information should be available to all concerned about the date of hearing so that they could appear and raise objections, if any, with regard to the

(I) PLD 1977 Kar. 83 acquisition of land and other connected matters. This provision specifically mentions at 20(a) and 2u(b) that notices should be served upon the applicant, and such other persons who may be interested in raising objections on any available ground. However, under section 20(b) it is not necessary that notices be sent to such persons also as have consented to receive payment of compensation. In the instant case, the District Judge sent notices to the private appellants at whose initiation the reference had been made to him as also to the Collector and the Advocate-General. Apparently these were the necessary parties in the case. Learned Advocate- General, however, submitted that since the land had been acquired for the Industries Department, therefore, a notice to them was also necessary within the meaning of section 20. In our view this requirement was fully meted out by service of notice to the Collector, as he was the authority who had initiated the proceedings at the directions of the Provincial Government of whom the Industries Department was an organ. He could very conveniently seek instructions from them and in fact he must have done so. Then notice to Advocate-General was a further step in this direction and seemingly met of abundant caution. The learned Advocate-General being the Principal Law Officer of the Province, was expected to have contacted the Government and made necessary arrangements for making appearance before the District Judge. Be that as it may, the Collector appeared through its representative and the cases were adjourned several times to enable him to produce evidence which he did. No other Agency either appeared or showed any interest in the proceedings. It is thus quite clear that the Collector was considered enough to represent the Provincial Government. It is not now open to the learned Advocate-General to contend non- compliance of section 20 of the Act of 1894 unless he is in a position to show to us that he himself or some person authorised by him or the Government wished to make appearance in pursuance to notice by the District Judge but opportunity was denied to him to represent his case. Additionally it is nobody's case either that sufficient opportunity was not provided by the learned District Judge to the parties. We rather feel from the perusal of the record that maximum indulgence was shown by him to the Collector to enable him to defend the case on behalf of the Province of Baluchistan.

Furthermore, learned Advocate-General has also not pointed out any prejudice worth the name that might have been caused to the Government for want of appearance of any specific person or agency. This argument has also no legs to stand upon.

12. Learned Advocate-General took up the point of limitation next. He pointed out that in Appeal No, 5 of 1981, the appellant Dr. Yahya made application on 29th May, 1980, against the Collector's Award dated 24th April, 1979, seeking endorsement of the amount of compensation. But the application for reference under section 18 of the Act of 1894, was in the form of a letter and it could not; therefore, be treated as proper application seeking reference. He further pointed out that this letter too was belated. Similarly he pointed out that in Appeals Nos. 7 and 8 of 1981, reference was made with a delay of two days. The District Judge did not consider this aspect while adjudicating upon the matter and it forms substance of learned Advocate-General's grievance. No objection was, however, raised with regard to other cases. For the facility of reference, we may reproduce below the relevant para. Of section 18 of the Act of 1894 :- "Section 18.-(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 this objection to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.

(2) The application shall state the grounds on which objection to the award is taken :- Provided that every such application shall be made :-

(a) If the person making it was present or represented before the Collector at the time when he made his award, within six weeks from date of the Collector's award ;

(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, subsection (2) or within six months from the date of the Collector's Award whichever period shall first expire."

' It is nobody's case that they were not present before the Collector when the Award was made, as such, the requirement of law was that the application be made to the Collector for reference to the District Judge within six weeks from the date of the Award, but in these cases it was not done so.

The reference and the application for making reference both were belated which fact it is alleged, escaped the notice of the District Judge. In view of this objection the question that arises for decision is whether the District Judge could go behind the legality of the reference including the point of limitation or not. Mr. S. H. Rizvi one of the learned counsel for the private appellants submitted that it was not obligatory upon the District Judge to have made a probe into this aspect of the case because jurisdiction to investigate into the case itself was conferred upon him by the reference so he could not go behind the facts proceeding the assumption of jurisdiction and that was legally beyond the scope of enquiry, (See Government of West Pakistan (Now Government of N.-W. F. P.) through Government of N.-W. F. P. Through Controller, Peshawar v. Arbab Haji Ahmed Ali Jan and others (1). The following paragraph of the judgment may be reproduced here with advantage :-- "It is only when a reference is made under section 18 that the designated Court is empowered to act and not otherwise ; and while exercising its jurisdiction, it cannot go behind the reference and hold that it was illegally made for the reason that the Collector had no power to do so as the application for making the reference was made beyond time. Such exercise of judicial power must be eminent from the jurisdiction otherwise it cannot be exercised."

The case cited applies to the facts of the present case in all fore's as in this case also ; the objection of the learned Advocate-General is with regard to judging the competence of reference by the District Judge which jurisdiction is not available to him. We find no substance in this contention also

(1) P D 1981 SC 510 and hold that the learned District Judge acted lawfully in not going behind this question.

13. Now coming to the main question of quantum of compensation which is the pivotal question by both parties' point of view. We would like first to refer to the evidence which has been adduced by the parties before the learned Collector and then before the learned District Judge, Khuzdar.

Among others, we would first mention to a clarification sent to the learned District Judge by the Collector Lasbella on the application of the Attorney for the private appellants as it provides basis upon which the Collector proceeded to calculate the amount of compensation. He stated that the compensation of Rs, 5,000 per acre was fixed by him keeping in view the market value of similar lands in this village at the time of the issuance of the first Notification for acquisition as envisaged by section 23(I) of the Act of 1894. We shall next proceed to the evidence that he relied upon in this context. But before discussing that, we may mention with emphasis that while passing the impugned order, the Collector gave absolutely no basis for arriving a that conclusion. In fact the order has been slovenly written, as no car-for material for arriving at a particular conclusion, or a detailed discussion of the evidence or reasons for accepting or rejecting any piece of evidence has been taken. In short, no rule of appreciation of evident seems to have found favour with him. All what he has done is that after giving the details of the lands, he has disposed of the matter in two short paragraphs which are reproduced below for reference.

"In response to the notices issued under sections 9 and 10 of the Lan Acquisition Act, 1894, the land owners have lodged their objection and statement of claims. They have demanded very high prices and claimed different rates for their agricultural land i. e. Rs, 25,000 to 90,000 per acre.

Besides they have claimed high rate for trees, Houses, Jhugis etc. As under :- ' According to the calculation of average price of agricultural land in Mauza Patra Tehsil Hub, comes to Rs, 3,500 per acre. But keeping in view of the prevailing high prices in the area and the importance of establishment of Industries Development Project, I fix the price at Rs, 5000 per acre for land required for the purpose and cost of Katcha/Pacca Houses, Jhugis, Wells and Trees thereon as under :-- {{TABLE}} Katcha Houses ... Rs, 6,000 per room.

Jhugis ... Rs, 3,000 Well drilling ... Rs, 4,000 Trees ... Rs, 500 per tree.

Trees Beni ... R. 200 Pacca Houses ... Rs, 10,000 per room. {{TABLE}} ' In addition to the above rates of compensation I award 15 per cent statutory allowance as admissible under Land Acquisition Act, 1894."

' It can well be seen from this order that it does not satisfy the requirements of law as among others, it is conspicuously silent about the basis on which the prevailing market value of the lands at the time of the issuance of the notice had been assessed by him. But as the case has been examined in detail by the learned District Judge subsequently, therefore, we would not require fresh decision in the case at the Collector's level. It was pointed out by the learned Advocate-General that some mutations whereby some of the disputed lands and some other lands in village 'Patra' and in its vicinity had been purchased by these appellants in early seventies had been taken into consideration by the learned Collector, but since the Order does not make any reference to any such document, therefore we are bound to presume that he has based his findings simply on conjectures or presumptions. Learned Advocate-General's, effort to support the impugned order may otherwise be commendable but can hardly be appreciated by us as it has no legal basis.

14. In fact, it was only before the learned District Judge that the cases proceeded in accordance with law. He consolidated all the cases and recorded whatever evidence was adduced before him.

His is the only judgment which would provide us help in settling the issue. The appellants produced before him certified copies of some registered sale-deeds in respect of lands in "mauza Patra" and its vicinity. These sales pertain to the period from 13th August, 1978 to 14th June, 1979. The average sale price for various pieces of land varies from Rs, 35,000 to Rs, 42,000 per acre or thereabout. It has also come on record that the disputed lands were half a mile to two to three miles away from the R. C. D. Highway and sixteen miles from Karachi. The distance of the lands in the sale-deeds referred to above is also near about the same from the R. C. D. Highway as well as the town as that of the disputed lands. According to evidence, not controverted, upto about 25th mile from Karachi on the Highway different industries have been set-up and many others are in the process of installation. Likewise, several township schemes such as "Iram Town", "Bolan Town" and "Shah Wilayat Town" were also in progress. According to the oral evidence in these township schemes the land was sold at Rs, 16 per square yard. However, we are not much concerned with the Township Schemes and would not consider the prices of the lands thereof as a deciding factor as the entire disputed lands can at no stage of time be expected to be occupied by township schemes. These can only be occupied by the industries being set-up in and around the village or can give increased agricultural yield, in case water resources were developed but about the likelihood or otherwise of such resources nothing has come on record. It was also argued that the township schemes have not been a success for various reasons. Some of them have since been disapproved by the Government and abandoned only sometimes back of which judicial notice can be taken. Therefore, while assessing the market value of the disputed lands at the relevant time, among others, by keeping in view the future possibilities of the use and consequent value etc. As one factor, all what can be kept in consideration is the requirement of these lands for industries for which it is suitable and can fetch good price. That is why, the Government also decided to acquire it besides the industrialists who purchased lands in the neighbourhood on high price. Giving of some details of these sale-deeds would not be irrelevant. The sale-deed dated 13th August, 1978 shows that a plot of land measuring 2-2-17 acres from survey No, 747 of "mauza Patra" Tehsil Hub was conveyed for a consideration of Rs, 91,218.75 to Kashif Industrial Base, a firm of Karachi (Exh.

A/2). Vide sale-deed Exh. A/3, Mst. Najmun Nisa Begum sold 4-2-37 acres of land in survey No, 732/1 in Mauza Patra for a consideration of Rs, 1,65,593 to the Director, Baluchistan Oxygen. Vide sale- deed Exh. A/4, Sadiq Niaz Rizvi sold 4-2-11 acres of Land in survey No, 845 in Mauza Patra to one Ghulam Ali for Rs, 1,82,750. Vide sale-deed Exh. A/5 land measuring 2-1-0 acres in the same Mauza was sold to Nilom Shoes Limited for Rs, 90,000 on 3rd March, 1979. Similarly by Exhs. A/6 and A/7, both executed in 1979, lands were sold to the other industrialists for almost the same price namely above Rs, 40,000 per acre. From these sale-deeds which is sole documentary evidence on the point the market value at the relevant time i. e. : 1979, for the lands in this village and around was Rs, 30,000 to Rs, 42,000 or so per acre. But that is not conclusive in any manner as one cannot lose sight of the fact that these sales were not for the bulk of land but for selected pieces picked up by the purchasers and at least they must have ensured that they will not be required to level the land and that it was not rocky or sandy as the land in this area generally is, or that the land had not been eroded by `nalas' coming down the hills and such other considerations. Such could not be the consideration in case of the acquisition of the disputed land as it was acquired in bulk, naturally including all kinds of land. These lands are thus required to be developed by the Industries Department before they can fetch reasonable price. Besides this, in the said purchases, the purchasers must have chosen the land and fixed their prices after seeing their closeness to the R.

C. D. Highway or any other link road, as well as its closeness to the town of Hub and many other matters of importance. On the other hand, as said above, the disputed lands include all kinds of land inferior as well as superior by the standard heretofore referred.

16. Another important piece of evidence brought on record during the hearing of the appeals was a document issued by the Department of Industries, Commerce, Labour and Mineral Resources under the name and style of "Hub Industrial Estate". This document provides procedure for the allotment of industrial plots by way of long term lease. In this document, the price of land has been fixed at Rs, 2,73,000 per acre. But this is after the development and it is not known as to how much would be the cost of development per acre. Thus only a general idea can be formed about the price of land. There was an objection to the admissibility of this document into evidence by the learned Advocate-General on the ground that it had not been produced earlier and the procedure for adducing additional evidence had also not been complied with. The objection is not sustainable as this document was prepared after the acquisition in question and it being a Government publication, judicial note thereof can at any time be taken. On the basis of this document Mr. S. H. Rizvi submitted that it was anamolous position that the Government was itself selling the same land after acquisition at manifold price and was not prepared to pay a proper and reasonable compensation to the private appellants. This argument does not carry much weight. We have already said that the cost of development by way of construction of roads, supply of water and electricity and levelling etc. Of the land is not known, so F nothing can be said in definite terms about the justification or otherwise of the price fixed by the Government.

17. In. R. F. A. Nos. 7 and 8 of 1981 (Cross Appeals 12 and 13 of 1981) Rs, 90,000 per acre has been claimed as compensation on the ground that these were Sikni land but the amount awarded by the Collector was1 Rs, 5,000 per acre and that awarded by the learned District Judge was G Rs, 30,000 per acre. As we have already mentioned, much importance cannot be attached to Sikni and non-Sickni, as despite conversion of th agricultural land into Sickni it cannot be said that all this area could be covered into residential abodes and if that happened at all, the price of the{ land would go down. We are for such reasons inclined to keep the entire( land on same footings for the purposes of compensation.

18. As against the above discussed evidence of the private appellants, the representative of the Collector Mr. Abdul Sattar appeared on behalf of the Province. He attempted to support the amount fixed by the Collector. He submitted that the disputed land was situated 2-3 miles from Hub Town and 3-4 miles from R. C. D. Highway. It was `chair-Mumkin' land. He admitted that on some of these lands various industries had been established. On the question of price of the land, he produced two mutation entries Exhs. D/2 and D/3 showing the sale of some of the lands in the same area by some of the present private appellants or their predecessors in interest. Exh. D/3 goes to indicate that on 26-2-1980, two acres of land was sold at Rs, 10,000. Exh. D/2 shows that one acre was sold for Rs, 5,000. He has said nothing about the quality and location etc. Of the land. It is noteworthy that in case of small pieces of lands the price may be very high if they are selected pieces of land. But at the same time if they are too small, they may be unattractive price-wise and the owners of adjoining land may succeed in purchasing them for munchies than normal price.

' In fact no serious effort has been made on behalf of the Collector to bring any cogent and convincing evidence on record. Much has been left out to the guess of the Court.

19. The picture that emerges from the evidence on record is that the disputed land is situate 2-4 miles on the main road and R, C. D. Highway; on sixteen miles or so from Karachi, as such, it is suitable for industrial activity, for which infra-structure is also available. It is also close to the Hub Town. Further that some portions of land in this area have since been utilized for the installation of industries. In fact some lands from village Tatra' have been used for such purposes. According to the private appellants' evidence, the land in the vicinity was sold by them and others to various industrialists during the years 1978 and 1979 and the sale price varied from Rs, 35,000 to 42,000 per acre. According to the evidence produced by the Collector namely Exhs. D/2 and D/3, the sale price of some of the lands in the vicinity was approximately Rs, 5,000 per acre in the year, 1978. It is thus noteworthy that almost during the same period, some land was sold at Rs, 5,000 per acre. It has also come on record that in case of Sickni land, the price was 16 per square yard but that may be so in solitary cases. Then in the circumstances of the case we do not find it just to treat Sic kni and non-Sickni lands separate for our purposes and add or subtract any concessions on that score. It is practically a matter of entries in the revenue records, otherwise for all purposes all these lands stand on same footings.

20. We may further mention that no assessment of different pieces of lands belonging to various appellants has been done either by the Collector or by the learned District Judge, as such, we cannot assess the price of each piece, of land keeping in view its location, formation, quality i. e.

Whether it was rocky, even, uneven, eroded by `nalas' coming from the nersy hills etc. And that was also not possible, as it would have, entailed long time and expenditure on the part of both the parties. Thus for the entire land a uniform rate of compensation has been fixed by both the Courts below.

21. Since the evidence on record did not cover a very wide range and our desire was to go through as much of evidence as possible to assess the prevailing market value as accurately as possible, we summoned the Revenue Officer during the course of hearing and on the request of learned Advocate-General allowed both the parties to place on record such documentary evidence, which may be admissible without the formality of proof and may be helpful in assessing the market value of the disputed lands. Persuant thereto copies of some revenue entries have been placed on record on behalf of the Province. Some of these are marked as Annexures "A", "B", "C" and "D".

According to Annexure 'A', one Mir Ghulam Qadir Khan sold 150-3-37 acres of land in village Patra to Hassan Imdad appellant in R. F. A. No, 4 of 1980 for a sum of Rs, 15,000 on 5th November, 1970 i,e, at the rate of Rs, 150 per acre approximately. Vide Annexure 'B' one Mst. Aisha sold one acre of land on 10th April, 1978 for Rs, 5,000 to one Zainab. Similarly vide Annexure 'C' about two acres of land was sold by one Abdul Razzaq to one Madad Ali for Rs, 10,000 and vide Annexure Wali Muhammad and others sold 300 acres of land to Muhammad Rafique and others for rupees six lacs. From the above, it is quite clear that in village Patra and other villages in the neighbourhood the land was very cheap in early seventies but later on the prices appreciated. It was so because of the facilities given for installation of industries by the Province and resultant coming up of Hub as an industrial Town. However, it may be mentioned here that the purchase price of the acquired land has no relevance in the assessm ent of the compensation which, as we shall see later, is solely dependent on the market value at the time when the notification for acquisition of land is issued. By 1978-79 as we have seen, the prices were Rs, 5,000 per acre to Rs, 42,000 per acre and Rs, 2,70,000 per acre in case of Government land. It appears that such a situation persuaded the learned District Judge to fix the price at uniform rates of Rs, 20,000; 25,000 and 30,000 per acre. However, his successor in office maintained the amount of compensation of Rs, 5,000 per acre in R. F. A. No, I of 1982 for want of sufficient evidence.

22. Now adverting to the principles governing the fixation of compensation, we would first refer to section 23 of the Act of 1894 which is as below :- "Section 23.-(1) in determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration :- First, the market value Of the land at the date of the publication of the notification under section 4, subsection (I).

Secondly, the damages sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof : Thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land ; Fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings ; Fifthly, if in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change ; and Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.

(2) In addition to the market-value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition."

It will be seen that in the matter of fixation of the compensation, foremost importance is attached to the market value of the land at the date of publication of Notification under section 4 of the Act of 1894. The second consideration is to the damages, if any, to the standing crops or trees etc. Sustained by the interested person by reason of such taking over at the relevant time. Thirdly the damages, if any, caused by reason of severing the land acquired from any other lands. The fourth consideration is injury, if any, caused to the other property movable or immovable in any other manner. Fifth is the replacement of the person by reason of such a possession and the sixth is the damages, if any, bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the taking over of the possession. Then lastly, subsection (2) requires that fifteen per cent. Over and above the compensation would be given to the person concerned because of the compulsory nature of acquisition. It is quite evident from the evidence on record that clauses 3rd to the do not apply at all so the present cases. As far as the second clause is concerned, there were no standings crops on this land at the relevant time.

Of course, there were houses and trees for which compensation has been awarded by the Collector and has not been disturbed by the learned District Judge. There is also no dispute with this aspect of the case. Accordingly for us the only requisite is to assess the compensation in view of the market value at the relevant time and ancillary relief as per law which shall present no difficulty. Mr. S. H. Rizvi, learned counsel for the private appellants submitted that in fixing the market value potentialities and not only the existing possibilities were to be kept in view which approach did find favour with the learned District Judge. His precise argument is that although at present no mentionable agricultural activities were in progress over the lands in dispute but future possibilities were very bright as after the water supply from Hub Dam (nearing completion) was secured, these lands would yield valuable crops. He cited Province of Punjab v. Muhammad Fazil and others (1), wherein it was held that the compensation must he determined by a reference to the. Prices which a willing vendor might reasonably expect to obtain from a willing purchaser, and that the land was not to be valued merely by reference to the use to which it is being put at the time at which its value has been determined, but also by reference to the uses to which it is reasonably capable of bring put in the future. But in these cases, there is no evidence to show as to what particular future probabilities with regard to the more beneficial use of these lands could be within sight. In the

(1) PLD 1968 Lab. 1360 absence of evidence, as far as water for agricultural purposes is concerned, it is only a question of imagination as to whether or not water from Hub Darn was to flow over these lands. The only other possibility or potential in view can, therefore, be industrialization and that is the premises upon which we are proceeding.

' It was further argued by Mr. Rizvi that the possibilities of future price rise should be assessed keeping in view the prices fixed in the year 1979 by the Industries Department for the developed plots at Rs, 2,73,000 per acre and that appreciation was likely year by year. We have already said that the Government of Baluchistan has made no attempt to bring on record any material to show as to how much was the approximate development cost per acre in the seemingly high price fixed, so that value of the land could be separately assessed with certain degree of accuracy nor have the appellants done so. Mr. Rizvi also referred to Collector, Quetta Pishin, Quetta v. Habibullah and 14 others (1) and Government of West Pakistan v. Subedar Muhammad Hussain and 3 others (2), which reiterate the principle that the value of the land was not to be assessed merely in accordance with the use to which it is being put but also by reference to the uses to which it can reasonably be put in future. We have since discussed this aspect and need not repeat it. This proposition would be more apt in such cases in which land might be lying unutilized and that too close to a township and the speed of expansion of the town may indicate that such land too would fetch high price in foreseeable future as a building site etc. Or to the cases where agricultural lands in the vicinity of a township could be said to fetch higher price because of the possibility of its conversion into "sickni" land. In the cases in hand, such possibilities are out of question. Of course, if in future sufficient water and electricity was available and the Government patronage was also extended, some of these lands could be utilized for industrial purposes and thereby fetch higher prices than at the present and we already have a picture of the same in our view. In the alternative, these lands could be used for agricultural purposes but as we have said there was no evidence on record as to the availability or otherwise of the same. Furthermore, in the industrial sector too, it all depends on the quantum of industries which can be installed here. There are vast tracks of land available for industries also and this fact is suggestive of intense competition. Learned counsel submitted further that the transactions closest in point of time to the issuance of notification should have been kept in view whereas both the Collector and the learned District Judge have disregarded this fact and have assessed the transactions of the distant past. He referred to Deputy Commissioner, Karachi v. Abu Bakar and others (3) and West Pakistan WAPDA v. Mst. Hiran Begun: (4), to support his contention. There is no dispute with this proposition. However, as has been referred earlier, the evidence before the learned District Judge was of certain private transactions whereby the private appellants had themselves sold land to some industrialists vide registered sale-deeds. These are mainly of the years 1978-79 and have been brought on record by none else but by the appellants themselves. They are closest in point of time to the notification, dated 5th April, 1979 under section 9 of the Act of 1894. These sale-deeds show that the prices ranged approximately between Rs, 5,000 to Rs, 42,000 per acre. Then there was evidence produced by

(1) PLD 1970 Quetta 35 (2) PLD 1970 Lah. 463

(3) PLD 1972 Kar. 128 (4) 1972 SCMR 138 the Cone Actor i. e. Exhs. D/2 and D/3. These are also the transactions of the same period i. e. ; December, 1978 and February, 1980. In the revenue record produced during the hearing i, e. Mark "A", "B", "C" and "D". Some transactions are of earlier dates also but they were not before the District Judge. The argument is accordingly without force. It is thus evident that definite prices cannot be fixed for different pieces of land as the value of each piece will differ with the quality of land, distance from the city and the R. C. D. Road etc. It is the difference of the quality of land on these scores which is responsible for fluctuation in the prices ; otherwise during the period from 1978 to 1980 which is the period closest to the acquisition notification, various pieces of land fetched widely ranging price i. e. From Rs, 2,000 to Rs, 42,000 per acre. The Government has offered its land (after development) at a high price of Rs, 2,73,000 per acre. It cannot, therefore, be said that the learned District Judge while fixing a uniform rate for all the disputed lands, inferior or superior, did not take into consideration the prices prevailing in the region closest to the date of notification. Of course, the learned Collector handled the matter very lightly and we hardly find in his order any basis for fixing Rs, 5,000 per acre as the compensation.

23. Mr. Rizvi also referred us to Din Muhammad v. General Manager Communication (1) to canvass that prices received by the owners on private sale furnish a more accurate yardstick, in determining the market value. The proposition is not disputed but it cannot be treated to be the only or best yardstick in these cases. The reason being that some of these lands may be selected ones from the vast tracks of available land lying on both sides of the road and might have, therefore, fetched higher price. As far as the disputed land is concerned, it is a wholesale bargain and includes all kinds of lands, therefore, it cannot be measured with the same yardstick as the selected lands. Other considerations, however, apart. Thus the up short of this discussion is that these lands fetched prices in private sales at Rs'. 5,000 to Rs, 42,000 per acre during the same period.

24. Mr. M. M. Pirzada, learned counsel appearing in R. F. A. Nos. 4, 5 and 6 of 1981 (Cross Appeals Nos.

9, 10 and 11 of 1981) and Private Appeal No, 1 of 1982 adopted the arguments of Mr. S. H. Rizvi.

However, he added that in some of the cases to which we have already made a reference, the land was Sickni and should have fetched more price than the other land. This proposition has already been discussed earlier.

25. Mr. Pirzada next referred to R. F. A. 1- of 1982- and argued that the land in this case being situate in the same locality and all conditions for and against which prevailed in the other cases being common, the appellant at best deserved the compensation that has been allowed in other cases.

The argument has sufficient force, but as this case was separately tried, the appellant should have got on record sufficient evidence which he apparently failed to do.

26. As a result of above discussion, we consider that a uniform rate of Rs, 25,000 per acre would be reasonable, besides 15 % compensation under section 23(2) of the Act of 1894 and the interest allowed by the learned District Judge in the impugned order. Accordingly, we dismiss the appeals of the private appellants for enhancement of the amount of compensation of Rs, 25,000 in R. F. A.

Nos. 4/80, 5/80, 6/80, 7/80 and 8 of 1980. Cross Appeals No, 9/80, 10/80, 11/80, 12/80 and 13/80 partially

(1) PLD 1978 Lab. 1135 succeed. The rest of the appeals filed by the Government of Baluchistan are, also dismissed. As far as R. F. A. I of 1982 is concerned, the case is remanded back to the learned District Judge, Khuzdar for fresh decision and he is directed to record complete evidence in the case which the parties may like to produce before him and decide the case afresh.

' In the circumstances of the case, the parties are left to bear their own costs.

' ABDUL QADEER CHAUDHRY, J.-I have read the judgment proposed to be delivered by my learned brother. He has exhaustively dealt with the case and recorded his finding. However, I have not been able to agree with the observation made in Para. 11 of the proposed judgment in view of the clear provision of law that notice under section 20 should have been given to the Industries Department for which the area was acquired by the Collector. By means of Ordinance XLIX of 1969 Land Acquisition (West Pakistan Amendment) Ordinance, 1969 the following amendment has been made in section 20 of the Land Acquisition Act, 1894 :- "Amendment of section 20 of Act I of 1894 :- ' In section 20 of the said Act, in clause (c), between the _ word "Collector" and the full-stop at the end, the words and commas "and the Department of Government, local authority or Company, as the case may be, for which land is being acquired" shall be inserted."

According to this amendment notice to the Department of the Government for which land was acquired is a condition precedent for proceeding with the reference. Notice to the Collector is necessary when the objection is in regard to the area of the land or to the amount of compensation ; but notice to the department of Industries was necessary in view of amendment made in law so that the representative of the department should appear and adduce evidence for the purpose of determining the compensation. As the notice contemplated under the amended subsection (c) has not been given to the Department of the Government, the orders of the learned District Judge impugned in Cross-Appeals No, R. F. A. 9, 10, 11, 12 and i3 of 1980 and 9, 10, 11, 12 and 13 of 1981 cannot be sustained on this ground alone. The cross-appeals filed by the Government against the judgment of learned District Judge are accepted. As a result of the same the cases are remanded back to the District Judge for trial. As a necessary consequence the appeals filed by the land owners i. e. R. F. A. Nos. 4, 5, 6, 7 and 8 of 1980 and 4, 5, 6, 7 and 8 of 1981 are dismissed as the matters are being remanded for fresh trial.

' In view of the above-noted infirmity I agree with my learned brother that R. F. A. No, 1 of 1982 to be remanded back to the learned District Judge for fresh trial.

' MUFTAKNIRUDDIN, J.-These matters have been referred to me on account of difference of opinion between the two learned Judges of this Court who have heard these appeals. My learned brother Abdul Qadeer Chaudhary, J on account of a preliminary legal objection has, come to the conclusion that notice as required under amended section 20 of the Land Acquisition Act, 1894 having not been given to the Department for whose benefit the land was acquired the entire proceedings stand vitiated and has 'accordingly remanded the cases for trial, he did not discuss any other point raised in appeals, while the Acting Chief Justice has considered this point also in Para. 11 of the Judgment and disagreed with the view taken by Abdul Qadeer, J.

' Today Mr. Munawar Ahmed Mirza, the learned Advocate-General at the outset has raised a new plea altogether i. e. At the relevant time there was no District Judge at Khuzdar because provisions of Civil Courts Ordinance, 1962 were not extended in that area and Sessions Judge was merely a Chairman Majlis-e-Shoora who is an appellate authority under the provisions of Dastoor-ul-Amal Diwani Kalat and does not enjoy the powers of principal Civil Court of original jurisdiction, therefore the order passed by the Chairman Majlis-e-Shoora is void and of no legal effect. Mr. S. H. Rizvi objects to the raising of this objection before me as according to him this point has not been urged before the Division Bench. I am also of the opinion that as a referee Judge I can hear only the point referred to rue and the new plea is certainly not a point referred. The case may therefore be laid before the Division Bench to formulate the point or points of reference to be heard by me.

Submitted for orders.

' ZAKAULLAH LODI, ACTG. C. J.-The facts forming the background of these cases need not be given here as they have been elaborately dealt with in our dissenting judgment dated 23rd October, 1983.

Suffice' it to say that there was no difference of opinion between us on any other aspect of the case except on the point of notice under section 20 of the Land Acquisition Act, 1984 (hereinafter called the 'Act') to the Industries Department for whose benefit the land forming subject-matter of these cases had been requisitioned. One of us (Mr. Justice Zakaullah Lodi) was of the view that no separate notice by the District Judge was necessary to the said department as the notices served upon the Advocate-General and the Collector (who had acquired the land for the said department) served the purpose. Such view, however, did not find support by Mr. Justice Abdul Qadeer Chaudhary as such, he directed remand of the cases for fresh decision by the District Judge, Khuzdar. However, there was consensus on the remand of R. F. A. 1 of 1982, fresh decision of which was directed. This case is even now free from any controversy.

2. A difference of opinion having thus arisen, the cases were referred to a third Judge (Mr. Justice Muftakhiruddin) on 23rd October, 1983 as required by section 98 of the Code of Civil Procedure (hereinafter called the `Code') for his decision on the point of dissent.

' It may be mentioned here that the point of dissent had not been reduced in the form of an issue while referring the cases to the learned Referee Judge, but it is apparent that he was, in his mind, quite clear about the same, as he has referred to it in his order, dated 26th November, 1983, whereby he referred back the cases to this Bench.

' A point with regard to the jurisdiction of the District Judge, Khuzdar, which had never been raised either before us or before him (District Judge) was raised by the respondents before the learned Referee Judge, who sent back the cases recording his impression on such point and without touching the point of dissent which had formed the basis of reference.

3. ' The position with regard to the erstwhile Kalat State may be referred here with precision. It never had District Judges, as the first appellate Court was `Majlis-e-Shoora' which had the powers to hear all civil appeals, On the criminal side, there were Sessions Judges who also functioned as Presidents of the Majlis-e-Shoora. Such situation existed in Khuzdar Division as well as other Sessions Divisions until 19th April, 1962 when in Lasbella District (a part of Khuzdar Civil Division) Civil Courts Ordinance, 1962 was extended and by another Notification, dated 16th May, 1982, the Sessions Judge-cum-President, Majlis-e-Shoora was appointed District Judge for the purposes of the cases emanating from the District of Lasbella. There is, however, absolutely no dispute about it that when these cases were referred by the Collector to the District Judge, Khuzdar, there was only a Sessions Judge-cum-President, Majlis-e-Shoora who decided these cases, wrongly considering himself to be the District Judge for the purposes of the 'Act'. Learned Referee Judge appreciating this position, referred the cases back to this D. B. And sought permission to decide the point of jurisdiction, and as said above, did not touch the point of dissent. It appears that he was of the view that the opinion on the point of dissent was no more necessary in face of the Nital question of jurisdiction, which he thought, he was competent to decide. When these appeals came back, the following two issues cropped up for consideration. Realising their importance, we requested Messrs Basharatullah, Aslam Chishti and Raja M. Afsar, Advocates to assist us 2s amicus curaie :-

(i) Whether a proper reference had been made to the learned Referee Judge ?

(4) Whether the conflicting judgments written by us in the case, in any manner, amounted to a 'Judgment' as described by C. P. C. And were couched with finality, particularly when no decree could flow from them. And if they were not final judgments, whether this Court was yet seized of the jurisdiction to consider any new point, including the point of jurisdiction, cropping up after these judgments ?

' For the effective disposal of these appeals we have added to the above said issues another issue namely ; 'as to what course should be adopted in the peculiar circumstances of these cases'.

4. Dealing with the validity or otherwise of the reference, we may first examine the scope and requirements or section 98 of the Code. It reads as under :- "Section 98.- Decision where appeal heard by two or more Judges. -(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is such majority which concurs in a judgment varying of reversing the decree appealed from, such decree shall be confirmed : Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the. Appeal,' including those who first heard it.

(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.

Two things are quite clear from the above, that (1) only the point of dissent among the Judges of the D. B. Shall be referred to the Referee JudgelM and in the light of his findings, the final judgment shall be 'delivered i,e,! By majority, and (ii) the jurisdiction of the Referee Judge is confined only to giving his opinion on the point so referred.

' Here we may also refer to clause (26) of the Letters Patent, Lahore High Court 1919 which by virtue of the Governor-General's. Order 19 of 1955 became Letters Patent of the High Courts of erstwhile West Pakistan and now of all the High Courts of Pakistan. (See PLD 1955 Central Statutes 298 and Muhammad Sayyar v. Vice-Chancellor, University of Peshawar (1) ). Under this clause, a point of fact is also referable to the Referee Judge alongwith the point of law, whereas the scope of section 98 of the Code is restricted to the points of law alone.

' In the case Royal Calcutta Turf Club through Acting Secretary, D. J. Leckie v. Lala Kishan Chand Manchanda Advocate (2), the function of Referee Judge under section 98 of the Code was discussed and it was held that the Referee Judge must return his finding on the point of difference alone to the D. B. For pronouncing the decision of appeal by majority. Another case, the State of Bihar v. Ram Ballabh Das Jan and another (3), may also be referred. In this case a point of vital importance had not been raised before the D. B. The Judges of which had differed on certain points but was raised for the first time before the third Judge, and it was urged that that point could not be raised earlier as the party raising such point was not represented by a lawyer. But despite this seemingly convincing ground, it was held that no new point could be urged before the third Judge as his jurisdiction did not extend beyond the consideration of the point specifically referred to him.

5. However, in this background, let us examine the question as to whether a reference should necessarily state the point (in the form of an issue etc.) upon which the Referee Judge is required to give his opinion. Mr. Rizvi, learned counsel for the private appellants submitted that omission to state such point in the order of reference does not constitute any illegality as that is only a technical or formal requirement; for, by reading the dissenting judgments, the points of difference become manifest. He relied upon Muhammad Akram and others v. Ch. Muhammad Saleem (4), in which with reference to section 98 of the Code and clause 26 of the letters Patent of the Lahore High Court, such view was confirmed and it was explained that it was not necessary for the Members of the D. B. To expressely record the point or points on which they differ and such an omission would not render the reference without jurisdiction or materially defective. With reference to clause 26 of the Letters Patent, it was further held that although this provision of law states respecting the Judges of the Division Bench that," . . . . . They shall state the point upon which they differ . . . . .", but no special form was prescribed for stating such point or points. Likewise in Jyoti Prokash Mitter v. Honourable Chief Justice Mr. Justice H. K. Bose of the High Court of Calcutta (5), also this point came up for consideration with reference to clause 36 of the Letters Patent (Calcutta) which is in para materia to clause 26 of our Letters Patent. Here as well, the Referring Judges had not formulated the points of difference and upon examining the language used in the said clause as also the purpose behind formulation of such points, it was held that even without formulation of the point of reference, the Referee Judge before whom both the views of the Judges of D. B. Had been placed, could decide the necessary issue and

(1) PLD 1974 SC 257 (2) AIR 1943 Lah. 84

(3) AIR 1960 Pat. 400 (4) PLD 1964 Lah, 490

(5) AIR 1963 Cal. 483 #TBS (1) PLD 1955 Dacca 9 (2) PLD 1962 Lah. 161 #TBE that by virtue of judicial sanctity attached to the order of reference of D. B., it could not be considered illegal for want of fulfillment of a mere technicality. Resultantly, although in the absence of the formulation of the points upon which the Judges of the D. B. Differ, the reference to a third Judge would not be illegal ; but keeping in view the language of section 98 of the Code and clause 26 of the letters Patent, it is desirable that the point of difference should be formulated with clarity but that is just to ward of the chances or likelihood of any confusion that might otherwise arise.

6. In the instant case, validity of the reference cannot be challenged for an additional reason also, i,e, that the Referee Judge while sending back the cases to us recorded an order in which the point of dissent referred to him has been explained. Thus it is quite clear that no confusion whatsoever, was created in his mind for want of formulation of the point U referred to him for decision. We are, therefore, of the view that the reference was valid though the learned Judge was somehow persuaded not to decide it but to advert his attention to the point of jurisdiction raised before him ; and undoubtedly that is very vital point for the disposal of the appeals before us.

7. The next point for consideration was whether our dissenting judgment pronounced in the Court while making reference to third Judge amounted to a final judgment and was couched with finality or we were yet seized of the jurisdiction to consider the point of jurisdiction raised before the learned Referee Judge. Mr. Rizvi contended that the judgment of the D.B. Had become final all in respects once it was announced except the point of difference upon which final disposal of the cases and the passing of the decree depended and that would happen upon the receipt of the opinion of the learned Referee Judge. In short, according to him, the judgment had become final to the extent of agreement between us. Let us examine the definition of the word 'judgment' before proceeding further. Section 2(9) of the Code defines it as under :- "The statement given by the Judge of the grounds of a decree or order."

' Order XX rule (3) of the Code is also relevant :- "The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by section 152 or on review."

' Reading these two provisions together, it is manifest that the judgment should be such statement of the Judge which may be capable of forming basis of a decree or order and it is such judgment which is unalterable after pronouncement. Mr. Rizvi, in support of his argument that our judgment had become final and was thus unalterable now, also placed reliance upon Abdul Manan Bhuiver v. Lal Hussain and Darya Kundi (1). In this case, a learned Judge wrote and announced the judgment and then subsequently rescinded and replaced it by another judgment which too was pronounced in open Court. In such circumstances, it was held that a judgment once written, signed and announced could not be rescinded and replaced by another judgment except upon an application for review or otherwise within the limited scope of section 152 of the Code, if need be.

He also relied upon Ruknuddin and others v. Hafeezuddin (2). In this case which pertains to Rehabilitation and Settlement Scheme (Punjab), an Additional Rehabilitation Commissioner dismissed by a formal judgment, the claim of a party, but did not decree the disputed land in favour of the petitioner. The consequences of non-passing of decree were considered in this letters patent appeal and, it was held that effect could be given to a positive decree alone and such decree should have flown from the judgment.

The crux of the discussion, therefore, is that a judgment would mean that signed and pronounced statement of a Court which is capable of giving rise to a decree. But both the above-cited cases have no application to the present cases as the dissenting judgment announced by us was incapable of producing a decree, unless a reference had been returned agreeing or disagreeing with the question referred to the Referee Judge. In case he had held that notice to the Industries Department was necessary and non-compliance in this regard rendered the proceedings before the District Judge of no legal effect, the result would have been a remand for the retrial of the cases, but if he had held to the contrary, the judgment of the District Judge, Khuzdar would have been confirmed (with the modifications mentioned in the leading judgment) and a decree in favour of the private appellants, would have been passed. But the position as it stood at the time when the cases were referred to the learned Referee Judge was that our judgments did not dispose of the appeals even partially i,e, decreeing or refusing to decree the claims in the appeals and the counter-appeals; not to call of a final decree. Thus, the final result depended upon the opinion of the learned Referee Judge and that is not available even now ; thus the cases are very much open with two opions ; (i) either to refer back the cases to the learned Referee Judge for his opinion on the point of dissent ignoring the point of jurisdiction which he has sought to decide. Or

(ii) to proceed to decide the point of jurisdiction and then take necessary steps in the light of the finding on this point. In short, the virtual position is that we are still clung to the stage at which the reference had been made to the learned Refere Judge. It may be referred here that there are no two views on the point that the orders under appeal were wholly without jurisdiction on the ground that whereas the 'Act' required a reference to be made by the Collector to a District Judge ; in the instant cases, reference was made to a Sessions Judge (under the Code of Criminal Procedure)- cum-President, Majlis-e-Shoora (under Dasturul-Amal Diwani, Kalat) and that there was no District Judge at Khuzdar Sessions Division, although later on, by the introduction of Civil Courts Ordinance, 1962, in the District of Lasbella, the Sessions Judge and President of Majlis-e-Shoora, Khuzdar became the District Judge for the purpose of all civil cases of District Lasbella which is a part of Khuzdar Sessions Division, as such, if the cases are now referred to him, the decision would be with jurisdiction. Mr. Rizvi attempted to convince us that the President, Majlis-e-Shoora, Khuzdar should be treated as District Judge, as otherwise. The appellants would be left with no remedy and such a situation wasnot contemplatable by law. Though this question does not directly attract our attention, for, the position is quite different now, but we may remark that the Qazis being principal civil Courts in the whole of Kalat Division, such cases could perhaps be referred to them in the absence of a District Judge. Mr. Rizvi relied upon Jia Ram v. Sint Kurdana Wanti (1), to contend that the Sessions

(1) PLD 1978 Quetta 91 Judge-cum-President Majlis-e-Shoora having been declared in this case District Judge for the purposes of the Succession Act, could also be considered District Judge for the purposes of the Land Acquisition Act.

' In fact, in this case a Full Bench of this Court considered the question as to which Court should deal with matters arising out of the Succession Act, in the absence of the District Judges throughout erstwhile Kalat Division (now Mekran and Kalat Divisions). In the light of this case, notification, dated 28th January, 1979, was issued promulgating Baluchistan Ordinance (1 of 1979), whereby the Succession Act of 1925, was amended so as to empower the President of Majlis-e- Shoora in Kalat and Khuzdar Civil Districts, to act in place of District Judges. But the President of the Majlis-e-Shoora was not declared District Judge for any purpose. Be that as it may. The position apparently remained the same in so far as all other laws were concerned. Mr. Rizvi tried to persuade us to hold that since the Presidents of Majlis-e-Shoora could act in place of the District Judges for the purposes of Succession Act, they may also be considered the District Judges for the purpose of the 'Act' following the de facto doctrine. He further submitted that the said authority had already acted as District Judge and passed the judgment and lack of jurisdiction did not matter much as far as the parties were concerned. He relied upon Gokaraju Rangaraju v. State of Andhra Pradesh (1). In this case, the appointment of a Sessions Judge was in controversy and it was held subsequently to be defective. An order passed by him was later on challenged as illegal and without jurisdiction for want of valid appointment. It was in these circumstances that following the de facto doctrine, it was held that "the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure". This citation is inapt as there the office of Sessions Judge did exist and only the appointment of a proper person was found wanting, therefore, it was held that while in office, the cases were decided by him between the parties assuming that he had the, jurisdiction to decide such cases. But in the instant cases, position is altogether different, in it, that that office did not exist at all and the authority which was conferred the powers to act under the Succession Act remained President, Majlis-e-Shoora i,e,, a creation of Dastur-ul-Amal Diwani, Kalat and not the District Judge under the Code, and even if he had been appointed as District for the purposes of the Succession Act, the position would not have improved as the span of jurisdiction would have been restricted to the Succession Act and no further. Thus the position that comes out crystal clear now is that the judgments under appeal are without jurisdiction.

8. The main question that requires consideration is as to whether we can decide the question of jurisdiction ourselves or after having pronounced the dissenting judgment (though it was far from final judgment) IQ we are devoid of any jurisdiction or powers in the matters and, therefore, we should press for the decision on the point of dissent by the Referee Judge and then confining ourselves to what has already been held by us in the dissenting judgment, we should decide the cases finally in the light of the opinion of the learned third Judge.

'9. Messrs Basharatullah and Aslam Chishti, learned amicus curaie, submitted with reference to the limitation contained in section 98 (3) of

(1) AIR 1981 SC 1473 the Code and clause 26 of Latters Patent, that under section 98, it was optional to refer to the third Judge the point upon which the Judges of the D. B. Dissent, whereas under the said clause 26, it was obligatory and that under the former provision, only a law point could be referred to a Referee Judge, whereas under the latter, both points of law and fact could be referred and that since we had announced the, judgment and referred the point of dissent to the learned Referee Judge, we had become functus officio, and were left with no jurisdiction whatsoever except to obtain the opinion of the learned Referee Judge and announce the judgment by majority in view of the same.

So the question of hearing the case on any other point, howsoever important it might be, was out of all possibility due to the limitations imposed by section 98 of the Code. They relied upon Muhammad Sayyar v. Vice-Chancellor of University Peshawar (1), Chaudhary Muhammad Tufail v.

Mst. Barkat Bibi (2) and The State of Bihar v. Rain Ballabh Das Jan and another referred to supra.

With reference to the function of the Referee Judge also, they submitted that he too could not decide the said point as it was outside the scope of reference. According to these learned counsel, the case should be referred back to the learned Referee Judge for his opinion on the point of difference and after the receipt of his opinion, the final judgment may be announced and the point of jurisdiction raised by the learned counsel for the official appellant be just overlooked. In case the parties desired decision on this point they could file a review petition or seek a decision by the Supreme Court. We pointed out to them that admittedly the orders under appeal were without jurisdiction and the entire exercise suggested to us would be of no avail. Rather it would be against all reasonableness as, if the Referee Judge agrees with the leading judgment, we shall be confirming (with certain modifications) the order of the District Judge knowing it to be a nullity.

Contrarily, if the dissenting view of one of us (Mr. Justice Abdul Qadeer Choudhary) was supported by the learned Referee Judge, it would amount to remanding back the cases to the trial Court not on the ground of want of 'jurisdiction' but on the ground of his failure to follow the procedure of the 'Act' in full. In other words, admitting an illegality or at least keeping quiet on the point, so vital in the case would be too anomolous a position. Mr. Chishti suggested that review could later on be filed.

This appears to be a very perverse approach to the problem, in it, that a Court should pass a wrong order knowingly it quite consciously v to be so, just under the pressure of certain technicalities. The Courts are, in fact, not supposed to resort to such a course.

10. Mr. Munawar Ahmad Mirza, learned Advocate-General appearing for the official appellants and Mr. Afsar Raja, learned amicus curaie submitted that since the learned Referee Judge has not decided the point referred to him, this D. B. Is yet in the season of the cases as it was at the inception of the cases and was not powerless to decide the cases effectively and finally, including the hearing of the point of jurisdiction. They further submitted that it was neither desirable, nor was in consonance of the established legal norms to pass orders against law only because of a technical hitch and then wait for some move to be made so that the error was corrected. They further submitted that the reference made in these cases was of no legal consequence as that had not been dealt with by the learned third Judge, as such, except for the announcement of the dissenting

(1) PLD 1974 SC 257 (2) P 1955 Lab. judgment on the points considered, nothing more had been done and that those points were not intended to be pressed for reconsideration. Rather a new point not heard and decided was to be heard and to that extent no impediment stood in way of this D. B. Learned Advocate-General further pleaded that the Court should ignore mere technicalities and formalities in so far as permissible by law to arrive at a just conclusion of a case. We also feel that it is highly improper to sacrifice the demands of justice at the altar of technicalities. The position would have been different if the difficulty faced by the Court was in some way insurmountable, such as flagrant disregard of some mandatory principles of law or rules had been involved for hammering out a solution from the present tangle but that is not the position here. All what is needed is to hear the cases on a new point of utmost importance after having announced an incomplete judgment. Mr. Munawar invited our attention to Manager, Jammu and Kashmir Estate Property in Pakistan v.

Khuda Yar (1). In this case, it was held with reference to procedural law that legal formalities and technicalities should not be allowed to defeat the ends of justice unless'the hurdle offered by such law was insurmountable. We reproduce below the following two paragraphs from this judgment :- "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history.

It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide."

"In Giovanni Di Santo v. Commonwealth of Pennsylyania it was observed that the logic of words should yield to the logic of realities, particularly while dealing with adjustment of conflicting authorities. The salutory principle of interpretation which also points to the same direction appears to have been derived from the observation of Bowen L. J. In Curtis v. Stovin, which reads as follows :- "If it is possible, the words of a statute must be construed so as to give a sensible meaning to them.

The words ought to be construed ut res rnagis valeat quam pereat."

' Learned Advocate-General also very pertinently pointed out and, we ourselves feels that in the event of upholding the order of the District Judge (if that situation ultimately arose) after the return of the reference, what shall we be confirming or upholding? Admittedly an order which we knew and believe to be illegal and which we would have unhesitatingly struck down, had the procedural difficulty presented by section 98 of the Code not come in our way. In the alternative the cases would have been remanded but in ignorance of a point which went to the root of the case. He further relied upon Muhammad Sawali v. Messrs United Gram & Folder Agencies (2), Yousuf Ali v.

Muhammad Aslam Zia and others (3), Khuda Bakhsh v. Khushi Muhammad and others (4) and Chittaranjan Cotton Mills

(1) PLD 1975 SC 678 (2) PLD 1964 SC 97

(3) P D 1958 SC 104 (4) PLD 1976 SC 208 Limited v. Staff Union (1). In the first mentioned case an ex parte order and decree passed without notice was under challenge and it was held that an order passed in violation of statutory provisions of la'w or principles of natural justice should be struck down unhesitatingly. In the second mentioned case also, the order assailed before the Supreme Court was one which had not been passed with authority. It was held by Mr. Justice Muhammad Munir, Chief Justice (as he , then was) that "an order to be final must be within power of the authority making it." In the third mentioned case also, an order of the Chief Settlement commissioner, without jurisdiction was in question and was meted out with the treatment that it deserved. It was held in this case that "the order of the Chief Settlement Commissioner dated 7th November, 1966 had merely pointed out the want of jurisdiction in the order dated 9th May, 1962. The order dated 9th May, 1962 was void ab initio on account of want of jurisdiction in the Chief Settlement Commissioner to pass the order and it was, therefore, a nullity and could be ignored. Such an order did not require to be set aside in appeal or in any other proceedings". In the last mentioned case, the proceedings before a Laboar Court were in question and it was contended before the Court that even if there was defect in the constitution of the Court, its proceedings could be validated in view of the provisions of section 44 and section 96 of the act. Section 96 of Industrial Disputes Act dealt with constitution of the Court and section 44 was a saving clause. It was held by the Supreme Court that the later provision could be pressed into service only if a Court had been properly constituted under the earlier mentioned provision gfici as one of the members constituting the Court, was incapable of sitting or refusing to sit, the Court was ab initio not properly constituted with the result that it was coram non judice and the order passed by it was finally set aside. It was further held that such an objection could be raised at any stage.

' There is a wealth of case law on the point and we need not embolden the judgment with further citations as the trend of Superior Courts can well be appreciated from the cases cited. With regard to the point of jurisdiction, it was held in the case mentioned last that the question relating to the jurisdiction of the Court can be raised at any stage and we are confronted with one such problem and the stage of the cases is when we have not yet parted with them finally. The orders in question, as said above, are admittedly illegal. Furthermore, in respect of R. F. A. Nos. 4 to 8 Si of 1980 and Cross-appeals Nos. 9 to 13 (in all ten appeals) Mr. Rizvi has already conceded that in these cases, the requirement of section 20 of the `Act' had not been complied with in letter and spirit as no notices had been directed to the concerned department, therefore, these cases shall necessarily be sent back for fresh trial to the learned District Judge. It is also settled that the decision of all these cases depends on common evidence and probably all or many of these cases could be consolidated and disposed of by a single judgment, therefore, the parties too shall not stand to suffer any uncalled for hardships or inconvenience, if all the cases were re-heard and disposed of at one place.

(Underlining* is mine]

11. For the reasons given above, we would set aside the orders dated of 1981 by the private 6th April, 1980 of the Sessions Judge-cum-President, Majlis-e-Shoora, Kalat T (now also a District Judge) on the subject in both the sets of these appeal (R. F. As. 4 to 8 of 1980 and R. F. As. 4 to 8

(1) PLD 1971 SC 197 Mere in italics) appellants and R. F. As. 9 to 13 of 1980 and R. F. As. 11/81, 10/81, 9/81, 12/81 and 13/81 filed by the official appellant) and remand back to him the cases for fresh decision. We further direct expeditious disposal of these cases.. These shall, however, be no orders as to costs.

12. Before parting with these cases, we would like to express our appreciations for the valuable assistance provided to us by Messrs Basharatullah Aslam Chishti and Raja M. Afsar, learned amicus curiae.

1.0.1MRIMON