M.S.H.QURAISHI, J.--This appeal, by leave of the Court, arises out of a reference made in connection with the acquisition of land measuring 112 Kanals 8 Marlas owned by Muslims, along with some evacuee lands, for a development scheme titled "41-Acre Asghar Mall Road Scheme, Rawalpindi", under the Punjab Town Improvement Act (IV of 1922). The notice under section 36 of this Act, which is equivalent to notification under section 4 of the Land Acquisition Act, 1894, was published in the Punjab Gazette of 8-4-1955. This was followed by notification under section 42, which is equivalent to section 6 of the Land Acquisition Act, on 7-9-1956. Possession of the land was taken over on 15-7-1957. The Collector made his award on 12-2-1963 fixing the compensation at the rate of Rs.12,000 per Kanal with interest at the rate of 6% per annum from the date of possession. He declined to award 15% as compulsory acquisition charges as the same, in his view, was not admissible under the Punjab Town Improvement Act. The benefi--ciary, that is, the Rawalpindi Improvement Trust, felt aggrieved and at its instance, the West Pakistan Government made a reference under section 18(3) of the Land Acquisition Act. The owners objected to the reference on the ground, Inter alia, that the Provincial Government had no locus standi to make the application.
This was on the basis of the construction put by them on the provision of the said section 18(3) introduced by the Land Acquisition (Punjab Amendment) Act (XII of 1954) and amended by the Land Acquisition (West Pakistan Amendment) Act (XXVII of 1958). But the objection did not prevail and the District Judge by his judgment dated 23-11-1964, reduced the compensation to Rs.6,000 per Kanal but maintained the award of interest.
2. Aggrieved, Muhammad Amin, the predecessor-in-interest of the appellants, filed R. F. A. No.11 of 1965 before the High Court. Some other owners affected by the acquisition also filed R.F.A. No.5 of 1965. Their main objection to the competency of the reference, which proceeded from the assumption that in view of the amending Act XXVII of 1958, the Provincial Government could make a reference only if the acquisition was made for the purposes of that Government and not when it was made for a local authority or a company, was repelled by the Division Bench of the High Court.
On merits, their plea against the reduction of rate of the compensation by the District Judge also failed. Further, the High Court refused their prayer to allow 15% for compulsory acquisition for the reasons that the appellants had felt satisfied with the award of the Collector who had disallowed the same and as such they could be "no sufferer in that regard". The appeals were accordingly dismissed by the impugned judgment dated 2-11-1971.
3. Leave to appeal was granted to consider whether the reference made by the Provincial Government where the acquisition had been made for a local authority, was competent and whether the Court was not under a duty under section 23(2) of the Land Acquisition Act to allow 15% for compulsory acquisition.
4. The Punjab Town Improvement Act (hereinafter called the. Local Act) was enacted in 1922 with the object of making provision for the improvement and expansion of towns, by the creation of Trusts vested with the statutory powers to enable them to acquire land and carry out such improvements and extensions as may be found requisite. Its very first section says that "this section and section 66 shall come into force at once". Section 66 relates to acquisition by a municipal committee or local authority, which latter expression, according to clause 1 of the Schedule to the Act, includes a Trust constituted under the Act. According to this section whenever a local authority acquires land for any of the specified purposes:
(1) ...............................................................
(a) the modifications of the Land Acquisition Act contained in the schedule of this Act shall so far as they are applicable, apply to every such acquisition;
(b) the Provincial Government may constitute a tribunal in accordance with section 60 and the provisions of sections 57 to 66 and of section 73 so far as they relate to the tribunal, shall thereupon apply to such acquisition.
According to subsection (2) of this section, "If the Provincial Government does not constitute a tribunal in accordance with clause (b) of subsection (1), all reference to the tribunal in the Schedule shall be construed as referring to the Court". Section 58 directs that "A Tribunal shall be constituted as provided in section 60, for the purposes of performing the functions of the Court in reference to the acquisition of land for the Trust, under the Land Acquisition Act, 1894". The incorporation of the Land Acquisition Act was, however, subject to modifications given in section 59 which reads:- "59. Modification of the Land Acquisition Act, 1894.--For the purpose o acquiring land under the Land Acquisition Act, 1894, for the Trust-- (a)the tribunal shall (except for the purposes of section 54 of the said Act) be deemed to be the Court, and the President of the tribunal shall be deemed to be the Judge, under the said Act;
(b) the said Act shall be subject to the further modifications indicated in the schedule to this Act;
(c) the President of the tribunal shall have power to summon and enforce the attendance of witnesses, and to compel the production of documents, by the same means and (so far as may be) in the same manner as is provided in the case of a civil Court under the Code of Civil Procedure, 1908; and
(d) the award of a tribunal shall be deemed to be the award of the Court under the Land Acquisition Act, 1894, and shall be final."
The modifications indicated in the Schedule are by amendment of certain sections of the Land Acquisition Act for the purposes of the applicability to the local Act. Section 60 deals with the constitution of the tribunal. Section 65 lays down to the award of the tribunal is to be determined.
5. This incorporation of the Land Acquisition Act in the local Ac, is an instance of legislation by reference. The effect of the adoption ox one statute by another by reference is the same as if the adopted statute had been written into the adopting statute. Such incorporation is meant to avoid the necessity of repeating such provisions in the subsequent Act dealing with the same matter. The effect of the incorpo--ration by reference to the provisions of a former Act is as if the new Act has come into force containing all those provisions subject, ox's course, to such modifications and alterations, if any, as may be indicated in the adopting Act.
6. The objection to the competency of the reference was grounded in the effect of the amendments made in section 18 of the Land Acquisition Act. Under subsection (1) of this section, "any person interested who has not accepted the award may require that the matter be referred by the Collector for the determination of the Court...". The expression, "any person interested" includes all persons claiming an interest in the I compensation to be made on account of the acquisition of the land but does not include the Government, or a local authority or a company on whose behalf or for whose benefit the land has been acquired. By they Land Acquisition (Punjab Amendment) Act (XII of 1954) subsection (3) was added to section 18, which was as follows:- "Notwithstanding anything to the contrary contained in section 21, the Provincial Government or a local authority or a company for which land is being acquired may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of the announcement of the award, provided that the Court shall not entertain the reference unless in its opinion, there is a prima facie case for inquiry into and determination of the objection against the award."
This subsection (3) was amended by the Land Acquisition (West Pakistani Amendment) Act (XXVII of 1958), whereby the words "or a local authority or a company for which land is being acquired" were omitted. The effect of the omission was that while a local authority or a company ceased to have any right to apply for reference, the Provincial Government continued to have such right.
7. A question was raised whether the amendments made to section 18 of the Land Acquisition Act by, Act XII of 1954 and Act XXVII of 1958, which amendments were subsequent to the enactment of the local Act and which had not beer. Expressly made applicable to the local Act, were applicable to a case of acquisition of land under the local Act. This was on the principle that the incorporation in the local Act being of the provisions of the Land Acquisition Act as they stood at the the of the incorporation, any subsequent amendment to those provisions could not automatically get incorporated unless an intention to that effect was clearly manifested. The argument, therefore, was that the subsequent amendments, in the absence of such express intention, were not applicable and that there being no provision in section 18 of the Land Acquisition Act as originally incorporated in the local Act, enabling the Government to make a reference, the reference was incompetent. We, however, find that the appellants' objection before the Courts below, to the competency of the reference had not been on account of inapplicability of the said subsequent amendments and no such objection having been raised or argued there, no opinion was expressed by those Courts. No such specific objection had even been taken in the petition for leave before this Court nor had leave been granted to consider such question. We are, therefore, not called upon in the present case to embark upon a discussion of the question of the applicability or otherwise of the said subsequent amendments.
8. The main objection to the competency of the reference concerns the right of the Provincial Government, even under the amendment provision of section 18, to have made a reference.
According to Mr. Abid Hassan Minto, learned counsel for the appellants, this right was restricted to only such cases of acquisition as had been made for the purposes of the Government. In other words, where the land was acquired by the Provincial Government for a local authority or a company, then an application for reference either by the Provincial Government or the local authority or the company will not be within the scope of subsection (3) of section 18 as amended by Act XXVII of 1-958. This does not appear to have been the legislative intent, for, the right of the Government to seek a reference is not circumscribed by any limita--tion that the relevant acquisition must be only for the purposes of the Government. The legislative intent, on the other hand, could possibly be to avoid multi fariousness of reference and to give the Government a control in the matter of making such reference because it is through the Government that the acquisition is made for the local authority or, the company. The High Court was, therefore, justified in holding that:- "In such a case it cannot be said that because the words "or a local authority or a company for which land is being acquired" have been deleted, the amendment was intended to deprive the exercise of right by such beneficiary through the Provincial Government; rather it appears that the legislature in order to confine the reference by and through the Provincial Government alone deleted those words, leaving it for the Provincial Government to move in the matter and if the right of lodging cross-objections to the objection made by any person interested has been left to the exercise by a local authority, or a company, independently of the Provincial Government, that will not in any manner be construed to control the interpretation and application of section 18(3)."
We see no reason to disagree with the view taken by the High Court. The objection, therefore, fails.
9. As already mentioned, a reference under section 18 of the Lane Acquisition Act has, in terms of section 58 of the local Act to be mad to a tribunal constituted under section 60 of the Act, which tribunal shall be deemed to be a Court under clause (a) of section 59. As itnobody's case that such a tribunal had been constituted, the reference to the Court in terms of subsection (2) of section 66 of the Act war competent.
10. Now coming to the second point on which leave had been grantee and which relates to disallowing of 15% on the market value as compensation in consideration of compulsory acquisition, we find that the payment of such compensation is directed under subsection (2) of section 23 o~ the Land Acquisition Act, which reads: "In addition to the market-value of the land as above provided, the Court shall award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition, if the acquisition has been made for a public purpose and a sum of twenty-five per centum on such market-value ii the acquisition has been made for a company."
By clause 10(2) of the schedule to the local Act this subsection (2) o1 section 23 of the Land Acquisition Act was made inapplicable to any land acquired under the local Act. But this modification by the Schedule was struck down by this Court in Province of West Pakistan v. Salim Ullah PLD 1966 SC 547 as being ultra vires of subsection (2) of section 299 of the Government of India Act. The ruling is fully applicable to the instant case also because the first notification, which is relevant for the purpose, had beep issued on 8-4-1955 when the Government of India Act, 1935, was still in force. The provision of section 23(2) is of mandatory nature and the District Judge was bound to comply with it. The learned Judges of the High Court have given no reasons for distinguishing the above ruling of this Court which had been pressed before them nor had they taken into consideration the following obser--vation made by a Division Bench of their own Court in Land Acquisition Collector v. Abdul Aziz PLD 1965 W.P. Lah. 327:- "If this provision of law applies to the instant case, then it was clearly the duty of the Land Acquisition Collector as well as of the Court to award this extra sum of fifteen per centum on the market value, and it was not necessary for the land-owners to make any specific claim in this behalf. The view that we take on this point finds support from Muhammad Sajjad Ali Khan and others v. Secretary of State AIR 1933 All. 742 and Muhammad Ismail and others v. Secretary of State AIR 1936 Lah. 599."
Unfortunately, the Division Bench in Land Acquisition Collector v. Abdul Aziz held, on the basis of pare. 10(2) of the Schedule to the local Act, that subsection (2) of section 23 of the Land Acquisition Act was not applicable which view was no longer valid having been overruled by this Court in PLD 1966 SC 547 (supra).
11. We, therefore, partly allow this appeal to the extent that the appellant shall be paid fifteen per centum on the market-value in terms of section 23(2) of the Land Acquisition Act in addition to the compensation awarded by the District Judge. There shall be no order as to costs.