MUHAMMAD ZAHOORUL HAQ, J: -'this appeal is directed against the judgment of a Single Judge of this Court dated 28-4-81 in Civil Reference No. 1/1975.
2. The relevant facts are that on 28-2-1952 the Collector of Karachi issued Notification under Section 45 of Karachi Improvement Trust Act, 1950, (which has effect of notification issued under Section 4 of the Land Acquisition Act, 1894), in respect of certain survey Nos. 34, 36, 66, 26, 27, 28 and 67 situated in Deh Gangrio and Deh Rehri Tapo Landhi Taluka and District Karachi for the purpose of K.DA. Scheme No. 4 Zone 2-B, Landhi Industrial Area, Karachi. The Collector passed the award for compensation at the rate of Rs. 3,000 per acre in Deh Gangrio and 2,800 per acre for Deh Rehri for lands held on unrestricted tenure and Rs. 2,250 and Rs. 2,100 per acre for the restricted tenure. The holders of unrestricted tenure land in Deh Gangrio requested the Collector. And D.C.
Karachi to make-a reference under Section 18 of Land Acquisition Act to the High Court and they claimed compensation at Rs. 3,000 per acre and also at the rate of Rs. 50 (sic) per. Sq. Yd.
3. While giving award the Collector was influenced by the judgment of the High Court in L.PA. 87/61 (Rustom P Cowasjee v. Collector of Karachi) decided on 24th Nov. 1966 as lands in dispute are also related to the same Deh Gangrio.
4. The respondents produced three witnesses, namely, D.W. 1 Muhammad I1assain, an Assistant in Land Development Office of K.DA., D.W. 2 Ahmed Hussain, Assistant Executive Engineer K.DA. And D.W. 3.-Syed Muzamil Hussain another employee of K.DA. Who all stated that the land had been sold by K.DA. From 1951 to 1953 at Rs.3/- per Sq. Yd. The appellant took time on 23--9-1980 to, produce witnesses but on 26-10-1980 the appellant's counsel made a statement that he did not want to produce any witness and his side was accordingly closed. Thereafter arguments were heard and the impugned judgment was made where compensation at the rate of Rs3/- per Sq. Yd.
Was allowed.
5. The preliminary objection was taken by Mr. Hussain Adil Khatri that the appeal was not competent. He relied upon PLD 1975 Peshawar 1 where a Division-Bench took the view that the local authority or the Company for which the land had been acquired could not file an appeal under Section 54 of (he Land Acquisition Act. A number of rulings were noticed in that judgment both from India and Pakistan and it appears that it was unanimous view of the High Courts that the local authority or Company for which land has been acquired under the Land Acquisition Act could not file an appeal against the Compensation awarded. The main basis of these judgments was that the proviso `of Section 50 of Land Acquisition Act had made it very clear that where the land was being acquired at the cost of any fund controlled or managed by a local authority or any Company then no such local authority or Company shall be entitled to demand a reference under Section 18.
6. The argument was that once the local authority or Company is not entitled to demand a reference under Section 18 for referring the matter to the District Judge or the High Court against the award of the compensation by the Collector then they could not have a right of appeal a/s. 54 of the Land Acquisition Act because since they were not a party to the proceedings before the Court under section 20 of the Act therefore, they could not claim to be the persons interested or affected by the Judgment of the Court under Section 20 of the Land Acquisition Act and that if the Company or local authority was interested in getting land acquired under the Land Acquisition Act then they should be satisfied with the award made for the compulsory acquisition of land or else they should have purchased the land on their own by private negotiations and not through the agency of the Govt.
7. Mr. Khalil-ur-Rehman appellant's counsel countered these arguments by submitting that the law had been changed substantially from 1969 and notice of an enquiry under section 11 by the Collector was mandatory to be issued to the department of Govt., Local authority/Company for which the land was being acquired and they were to be required to depute an authorised representative and such authorised representative was given the status of a party to, the proceedings. He also referred to the amendment made in sub-section 20 (c) of the said Act where the Court op receipt of reference from the Collector under Section 18 was required to issue notice to the Collector, department of Government, local authority or Company as the case may-be for which the land was being acquired, if the objection was to area of land or amount of compensation.
8. Mr. Khalil-ur-Rehman contended that once the local authority or the Company was made a party to. The proceedings and was required to be issued notice of enquiry before the Collector under Section 9 of L.A. Act 1894 and also it was to be issued a notice of proceedings before the Court under Section 20 (C) therefore, it was obvious that the law had made a fundamental change in the situation and therefore; the department of Government, local authority - or Company was a necessary party-in these proceedings and it therefore, had a right of filing appeal under section 54.
9. The counsel further submitted that since the land was being acquired for the Government department, local authority or the Company, if the compensation is increased then their rights, are adversely affected and therefore, they should have the right of filing the appeal even if they were not a party before the Court which enhanced the compensation.
10. He. Relied upon the case of H.M. Soya decided by the Supreme Court of Pakistan, reported in PLD 1969 Supreme Court page 65 (67). In that case 'M/s. Wazir A.I Industries were not a party in -the original suit but their rights had been affected by au order passed against the defendant in the suit. Wazir A.I Industries filed ah appeal complaining that their rights had been adversely affected.
Respondent H.M. Soya objeete4 for competency of appeal. The High Court of Sin4 rejected their contention and held that if the right of a person had been affected by an order of the Court then even though he was not a party to the original proceedings he had a right of filing an appeal under section 96 of C.P.C. The view of the High Court was upheld by the Supreme Court in that judgment and the Supreme Court held that a stranger to suit or proceedings was competent to file appeal if he is adversely affected by order passed in such suit even if he was not a party to the proceedings.
Counsel also relied upon PLD 1975 Lah. 537 where it was held that if a person might properly pave been a party to the proceedings he may file appeal even if he was not a party to the proceedings in lower. Court. An appeal is ordinarily in continuation of the suit or proceedings and therefore, a party to the proceedings has a right of appeal. Under section 96 C.P.C. An appeal is provided against every decree passed by any court of original jurisdiction. But-it is not specified as to who can file an appeal but it has been held in number of cases that the persons adversely effected may file an appeal even though he was not a party and the matter has been set at rest by the Supreme Court in 1969 Supreme Court 65. This position is therefore, to prevail unless there is some express or implied provision in law.
11. Therefore, ordinarily Government Department, local authority or Company for which land was being acquired should have had the right of appeal against the judgment of a Court under section 20 if the compensation was increased but in innumerable cases it was held that the local authority or Company could not file an appeal under Section 54. AIR 1929 Lah. 10 and PLD 1975 Peshawar, 1, may be referred, where it was held that Government is the only person competent to appeal and not the Company or local authority for which the land had been-acquired.
12. To us it appears that the objection of Mr. Hussain Adil Khatri must prevail. Although under Section 9 of L.A. Act notice of enquiry under section 11 has to be given to the local authority and its authorised representative is to be treated as a party to the proceedings but the same is for the limited purposes of enabling the Collector in arriving at the correct decision in respect of measurement and compensation, etc. But it is remarkable to note that only the authorised representative is given the status of being a party to the proceedings u/s. 11, but the local authority or Company as such has not been assigned the status of being a party. The purpose appears to be a limited one of merely assisting the Collector in arriving at the correct figure of measurement or compensation. Even a notice under section 20 issued by the Court to the local authority is for the same purpose so that person for whose benefit the land is being acquired is able to assist the Collector in respect of proof of Compensation of measurement only. But the basic thing is that a local authority or a Company has not been given the right of asking for a reference under section 18 to the Court against the award of a Collector.
13. Previously even the Government did-not have that right a/s. 18, but now under the amendments of 1969, the Provincial Government has been given the right of making a direct reference to the Court a/s. 18 (3) if it has not accepted, the award. But the local Authority or Company for whom land is being acquired do not find any mention in section 18. U/s. 18(1) any person interested who has not accepted the award is vested with this right of asking the Collector to take a reference to the Court. But section 18 (1) when read in conjunction with Sec. 50 (2) and its proviso make it quite clear that local authority or company cannot demand a reference a/s. 18 but they can only appear and adduce evidence for the sole purpose of determining the compensation and hence the local authority and the Company do not become a full-fledged party and do not even have the right of any sort against the award of the Collector a/s. 19 if no one else either demands or makes a reference a/s. 18.
14. The original Section 50 had provided that no local authority or Company , shall be entitled to demand a reference under Section 18, has remained unchanged to this extent inspite of the fact that a number of amendments were introduced in Land Acquisition Act in 1969 and even this very section 50 was, itself amended partly by addition of. Subsection (1-A). The intention of the legislature, therefore, appears to be clear that even though the representative of a local authority or company has been given the status of a party before the Collector in enquiry under section 11 but it does not have the right of demanding reference under Section 18 against the order of the Collector even though it may feel offended against the same and may contend that higher compensation than was necessary had been awarded by him. It is therefore, obvious that even if exorbitant compensation had been awarded by Collector, the local authority or company would not have the right of asking for reference under Section 18 because the proviso of Section 50 completely bars such right. In such a case if no other person challenges the award of the Collector under Section 11 then it would become final and the local authority even if aggrieved against the sama, will have no right of getting the same reagitated before the Court under Section 20. Once the local authority or Company cannot seek a reference to the Court under Section 20 which is only for the purpose of facilitating the determination of compensation or measurements before the Court as is made clear in Section 50(2). Notice a/s. 20, therefore, does not appear to be giving a right to the Company or local authority to be treated at par with the Collector who is in fact a party to the proceedings on a reference under section 20 or for that matter the claimants. It does not appear to be plausible that a person who does not have a right of demanding a reference under section 18 against the award of the Collector will become invested with the right of filing an appeal against the decision of the Court which is itself based upon a reference under section 18. A person to whom the legislature did not give the right of demanding a reference u/s. 18, should not have right of agitating the matter further in appeal even though his rights were adversely affected by that judgment. It appears to us that the legislature by denying the right of reference to a local authority or company under section 18, has by clear implication denied it the right of filing an appeal against the judgment of the Court under Section 54. This appeal is therefore, not found to be competent.
15. Mr. Khalil, then contended that the appeal was competent a/s. 3 of Law Reforms Ordinance XII of 1972 as amended by Ord. XXXIV of 1972. This argument is of no use to the appellant. Of course an appeal is competent to a Bench of the High Court from an order passed by a Single Judge of the High Court in the exercise of its original Civil Jurisdiction. But the question is as to who is competent to file the appeal. The Collector could file the appeal in this Court, but not the local authority like K.D.A. Who can merely assist the Court in arriving at a decision about measurement or compensation but does not have all the rights and incidents of a party in the case and in any case the right of appeal to such Local authority or company is impliedly barred by the provisions of Sec.
50 of the Land Acquisition Act 1894., Therefore the Law Reforms Ordinance 1972 as amended does not make any change in respect of the person who could file an appeal in respect of the Land Acquisition Act. The words of Sec. 54 of LA. Act 1894 and those of Sec. 3 of Law Reforms Ordinance 1972 are similar in nature in respect of the person of the appellant and hence this argument also fails.
16. However, since the matter was heard at length therefore, we had heard Mr. Khalil-ur-Rehman on merits as well and it is therefore, proper to note his arguments on merits. The counsel for appellant contended that the Compensation in this case should have been fixed keeping in view the provisions of section 4 of The Land Control (Karachi Division) Ordinance XXVI of 1948. Same provided that notwithstanding anything to the contrary, the Market value of any land lying within the specified area shall for determining the amount of compensation awarded therefore, if such land is acquired after 31st March, 1948 be the lower Market value of the land determined with reference to its Market value.
(a) On the 31st March, 1948, and (b)on the date of the notification or, as the case may be, of the notice aforesaid.
We are of the view that this contention has no force. Section 4 of Ordinance XXVI of 1948 talks of the Market value of any land within the specified area, and specified area is defined in Section 2 of the same Ordinance as any area specified in the Schedule.
We have perused the Schedule of Ordinance XXVI of 1948 and we find that the land in Tapo Landhi is not included in this Schedule, and the land beyond Malir and Malir Cantonment appears to be outside the limits prescribed in the Schedule, with particular reference to boundaries on the South and East. It is therefore, obvious that the land in question which is situated in Landhi is not within the specified area given in the Schedule of Ordinance XXVI of 1948 and hence section 4 of that Ordinance was not attracted to this case and therefore, the Market value of 31st March, 1948 could not be the basis of determining the compensation of this land and hence compensation had to be determined in accordance with the factors to be considered in determining compensation as provided in section 23 of the Land Acquisition Act 1894.
That learned counsel then contended that the compensation in this case should have been determined according to the view taken in L.P.A. 87 of 1961 where a compensation of Rs. 3,000 per acre had been awarded in respect of the land which had been acquired in the same Deh Gangrio in 1951. We do not agree with this submission. L.PA. 87 of 1961 was decided on the basis of its own facts and the learned Single Judge against whose Judgment this appeal had been filed has dealt with this aspect of the case and has rightly held that increased compensation in that case could not be awarded because the parties before the Court in that case had not been able to produce evidence to show that the Market value of the land or that of adjacent land had been more than Rs.
3,000/-. L.PA. 87 of 1961 having been decided on the basis of the evidence produced by claimants before it, the same cannot be considered to be of a binding force in respect of other claimants who are in a position to adduce evidence. And we find that in this case the respondents have been able to adduce evidence which has been relied upon by the learned Single Judge and therefore, the compensation awarded in L.P.A. 87 of 1963 could not be regarded as a complete bar to any increase of compensation.
The appellant's counsel further contended that the impugned Judgment had not proceeded on the basis of correct facts and that the learned Judge had mis-construed the lease deed Exhibit 5/1 which had been produced before him. Counsel contended that only Rs. 3/0 per Sq. Yd. Had been charged as development charges by the K.D.A. While the learned Judge has treated the same differently from development charges. We have perused the contents of Ex. 5/1 and we find that there is a mention m the opening part of the said lease Deed that the lessee in that case had paid to K.D.A. Rs. 2,69,491/31 plus a sum of Rs. 1,403/62 being one year's advance rent. And we also find that in the latter part of the said lease there is a mention of the tenant yielding and paying a development charge at the rate of Rs. 3/- per Sq. Yd. Payable in three equal installments, first instalment payable on or before the date of execution of lease, second on or before the expiry of 12 months thereafter and the third and last instalment on or before the expiry of 24 months from the date of execution of the lease, and yearly rent during the said term at the rate of one quarter per Sq. Yd. Per annum. We also find that in the impugned Judgment the learned Single Judge has noted exactly the same items and therefore, he does not appear to have mis-construed the lease in any manner which clearly shows that the KDA. Itself had charged Rs. 3/- per Sq. Yd. As the price of this land.
Mr. Khalil-ur-Rehman submitted that the lease Deed was a mere formal document and that the development charges mentioned in the latter part of this lease Deed were in fact the same which had been mentioned in the beginning of the same being Rs. 2,69,491/31. We do not find any justification for this submission in view of the fact that witness No.1 for the respondents, namely, S. Muhammad Hussain who was an Asstt. In KDA. In the Land Department and who had brought record of Landhi Industrial area had deposed that land had been sold to Divisional Engineer T & T on 8-9-1952 at the rate of Rs. 3/- per Sq. Yd. And that the price did not include development charges. He also deposed that between 1st October, 1951 to 21st January, 1953 which were sold at the rate of Rs. 3/- per Sq. Yd. And he again made it very clear statement of the concerned Assistant in the Land Department of the KDA. The submission of the Counsel of the KDA. That development charges were included in the price of the land does not appear to be correct.
17. Mr. Khalil-ur-Rehman referred to the cross-examination of this witness where he had expressed his lack of knowledge whether any development charges were recovered in respect of there plots, and contended that this cross--examination showed that the development charges were a part of the price charged. We do not agree with the submission. Lack of knowledge about actual recovery of the development charges cannot be brought at .Par with the definite statement made by this witness that the price of the plots did not include development charges by the KDA.
18. We are therefore, of the view that the learned Judge has correctly construed the documents and the evidence before him and has rightly come to the conclusion that the KDA. Has sold these plots to different allottees at Rs. 3/- per Sq. Yd. Even Syed Muzzamal Hussain has stated that the price charged of the plot was Rs. 3/- per Sq.Yd. This witness was also an Assistant in the Land and Estate Department of the KD.A. The only question in cross--examination put to him was that the land was barren at the time that it was acquired.
19. It appears to us that the learned Judge has taken into consideration the sales of different plots made by KDA. In this area to different allottees between 1951 and 1953 and the learned Judge has based his judgment on the same and awarded a sum of Rs. 3/- per Sq.Yd. As compensation. He was justified in his approach particularly when the evidence had come from the three witnesses of KDA. Itself. If KDA. Was not satisfied with the depositions of these witnesses it could have easily examined an Estate Officer or Land Officer and could have easily proved that only Rs. 3/- per Sq.
Yd. Had been recovered from the allottees of land both for the purposes of price of the plot as well as towards the development charges. But KDA. Has miserably failed to do so and in fact it did not examine a single witness on its behalf and therefore, they are themselves responsible for the impugned judgment where compensation was awarded at Rs. 3/- per Sq. Yd. The learned Judge had no other evidence before him and therefore, he was justified in relying upon the evidence produced before him on behalf of the respondents.
20. Consequently we find that there is no force in this submission made on behalf of the appellants.
This appeal is therefore, found to be incompetent as well as without merit and was therefore dismissed by short order passed on 3-4-1984.
A.A.K-133/K