1. This judgment shall dispose of Writ Petitions Nos.717 of 1977, 522 of 1983 and 420 of 1977 involving identical questions of law and fact and arising out of identical awards dated 13-11-1976 and 3-1- 1982 of the Lahore Development Authority Tribunal.
2. 2.The facts relevant for disposal of these writ petitions are that Muhammad Zafar Rai petitioner claims to be the owner in possession of land measuring 70 kanals 10 marlas and 25 sq. Ft. Which fell within Katcha Multan Road Development Scheme knowns as "1600 Acres Scheme" notified by the Lahore Improvement Trust for requisition purpose on 29-5-1965 for setting up a Satellite Town thereon. Mst. Sughran etc. Petitioners in Writ Petition No, 522 of 1977 claim to be the owner in possession of land measuring 81 kanals 9 marlas and 20 kanals 214 sq. Ft. Which fell under the same scheme. The scheme was sanctioned by the Basic Democracies and Local Government Department vide No, SOV-7-1/68 dated 24-12-1970, which was published in the Gazette of West Pakistan on 1-1-1971. The notification under section 36 of the Town Improvement Act, 1922 was issued on 29-5-1965. The Land Acquisition Collector announced his award on 30-8-1972. He divided the entire land into three categories and rate for compensation of each category was assessed as follows:-
(i) Category I Rs,300 per marla.
(ii) Category II Rs,176 per marla.
(iii) Category III Rs,10 per marla.
3. 3.I have perused the record of the proceedings of Land Acquisition Collector as well as the Lahore Development Authority Tribunal. Muhammad Zafar Rai petitioner submitted an application on 29- 1-1973 under section 18 of the Land Acquisition Act before the Collector, Lahore Improvement Trust (Local Area Lahore) for making reference in respect of the matter arising from the award dated 30- 8-1972 regarding acquisition of the land in dispute. It would be advantageous to reproduce the following paragraphs of the application:-- "4.That an area measuring 70 kanals 10 marlas and 25 sq.Ft. Of the petitioner has in fact been acquired in the abovementioned scheme. Learned Acquisition Collector gave his award on 30-8- 1972 and by doing so wrongly calculated the ownership of the petitioner as 54 kanals and 83 sq.Ft.
4. The compensation awarded for this area was fixed as Rs,2,61,178.83 i.e, Category I--34 kanals 12 marlas and 199 sq.Ft. Per marla @ Rs,300 = 2,03,558.67.
5. Category II 16 kanals 2 m.203 sq. Ft. @ Rs,176 56,830.79.
6. Category III3 kanals 18 marlas 211 sq. ft. (Ghair Mumkin Rasta) @ Rs,10789,87. 54-0-83 Rs, 2,61,178.83.
7. "6(b). That the petitioner owns an area of 70 kanals 10 marlas 25 sq. Ft. For which compensation was due. The measurement was not rightly taken and the record was not rightly read as the result of which an area of 16 kanals 9 marlas and 142 sq. Ft. Was left out of consideration."
8. 4.During pendency of proceedings of the said Reference before the Lahore Development Authority Tribunal, Muhammad Zafar Rai petitioner purportedly made an application to the Land Acquisition Collector for rectification of the record and for working out his correct area (the said application is neither on record nor the learned counsel for the petitioner Muhammad Zafar Rai was able to produce before this Court). However, Muhammad Sarwar Khan Patwari (P.W.6) deposed before the Tribunal to the same effect. The relevant portion reads thus:-- "The petitioner has made an application for rectification of the record and for working out correct area of the petitioner. This matter has not yet been finalised because we are still working out the correct area of the petitioner."
9. 5.Kafil Ahmad Patwari, Mauza Ichhra (P.W.11) also deposed that the area of the petitioner Zafar Rai was corrected by the Land Acquisition Collector subject to the original award.
10. 6.It would, therefore, be seen that the three supplementary awards were announced by the Land Acquisition Collector during pendency of the Reference proceedings as follows:-- Supplementary Award dated 24-5-1975 Supplementary Award dated 7-6-1975 K M Sq.ft.
11. Supplementary award dated 12-8-1976 1 13 129 9 18 129 2 7 148 Total: 13 19 177 Reference may also be made to the following notes recorded on the supplementary awards respectively:-- "NOTE.--This land has been exceeded vide Mutation No, 14330 (Correction of Area) as such Supplementary Award is being announced."
12. "NOTE.--According to Mutation No,11704 (Sehat Tatimma) the area of Khasra Nos.9395/3, 9390/3/6, 9384/21 and 9384/22 increased to 2k-3m26 sq.Ft. And Khasra No,9384/22 has been created as per Fard Malkiyyat prepared by Revenue Patwari dated 29-8-1972."
13. NOTE.--This land has been exceeded vide Mutation No, 14330 (correction of area) as such Supplementary Award is being announced."
14. 7.The Tribunal, after hearing the parties and perusing the evidence led before it enhanced the rate of compensation to Rs,450 per marla in respect of the land in- certain khasras while regarding remaining land the rate was assessed at Rs,350 per marla.
15. 8.Mr. Dilawar Mahmood, learned counsel for the petitioner Muhammad Zafar Rai, argued that the Tribunal, after inspecting the site recorded a finding that the acquired land was ideally situated and on that basis proceeded to enhance the compensation, but re-assessment had been made arbitrarily, inasmuch as, respondent No, 3 fell into an error by rejecting evidence of Hussain Muhammad (PW3) a property dealer of Multan Road, who had offered to purchase the land from the petitioner at the rate ranging between Rs,1,500 to Rs,2,000 per marla. In Support of this contention, reliance was placed by learned counsel for the petitioner on Collector, Quetta-Pishin, Quetta v. Habibullah PLD 1970 Quetta 35, Fazalur Rahman v. General Manager S.I.D.B. PLD 1986 SC 158, Abbottabad Land Acquisition Collector v. Haji All Asghar Khan 1985 SCMR 767, Malik Aman v.
16. Land Acquisition Collector PLD 1988 SC 32, to contend that the factori which ought to have been considered while assessing the compensation under section 23 of the Land Acquisition Act, 1894 are not restricted only to time of issuance of notification or any period prior to it but can also relate to period in future that is the potential value of the property at the time of acquisition, which could be paid by a willing buyer to a willing seller.
17. 9.There is no cavil with the proposition of law laid down in the precedent cases. The question here relates to determination of market value, which is a mixed question of law and fact. Here the learned Tribunal, after appreciating the evidence on record enhanced the compensation by determining the value at the rate of Rs,450 and Rs,300 per marla, which is not open to challenge in these proceedings. I do not find any misreading/disregard of material evidence on record. The determination of market value by Tribunal is based on proper appraisal of oral as well as documentary evidence and the same is not open to scrutiny in the exercise of writ jurisdiction.
18. 10.Mr. Dilawar Mahmood, relying on Fazal-ur-Rahman's case, referred to above, contended that the oral testimony of the property dealers adduced by the petitioner regarding value of land could not be rejected in an arbitrary manner. The contention is misconceived. The question of believing and disbelieving the testimony of a witness was within the exclusive domain of the Tribunal. Here cogent reasons have been given by the Tribunal in duly considering and discarding the evidence of Nadeem Ahmad and Hussain Muhammad P.Ws. This was within The competence of respondent No,3, to which no exception can be taken. The same principle is applicable in respect of appreciation of documentary evidence viz. Registered sale-deeds Exhs.21, 22 and 23 produced by Muhammad Zafar Rai before the Tribunal.
19. 11.It is next argued that the Housing Scheme Exh. P.18 was got sanctioned by the petitioner and the Tribunal also took note of it in its judgment at page 19 but compensation was not adequately enhanced with reference to potentiality of the land. This question again relates to appreciation of evidence which cannot be pressed into service in these proceedings.
20. 12.It is next contended that this was a fit case for the grant of special damages, inasmuch as, as a result of the impugned acquisition proceedings, the annual import licence obtained by the petitioner of the value of Rs,7,50,000 for import of yarn and other raw material was cancelled and in consequence thereof the petitioner Zafar Rai suffered losses for which he was entitled to be compensated by way of special damages. Here the Tribunal recorded a finding that the petitioner could not operate his factory on account of acquisition of the land in dispute and delay in finalization of the scheme, but special damages on account of losses suffered by the petitioner were not awarded, in that, the Tribunal held that there was no provision as such in law.
13. It is true that market value of land is normally to be taken as existing at the date of publication of the notification under section 4(1) of the Land Acquisition Act and potential value of the property with reference to price on which similar land was sold, could be taken into consideration. Here on account of losses claimed to be suffered by the petitioner on account of acquisition, he was allowed additional compensation to the extent of Rs,200 per marla of his entire land under section 23(3)(b) of the Land Acquisition Act and, therefore, there was no justification to award any further special damages claimed by the petitioner.
14. When faced with this, Mian Dilawar Mahmood reiterated his plea with reference to the cases reported as; Collector, Quetta-Pishin, Quetta v. Habibullah PLD 1970 Quetta 35; Afzal Shah v. Land Acquisition Collector PLD 1990 Pesh. 83; Abbottabad Land Acquisition Collector v. Haji Ali Asghar Khan 1985 SCMR 767; Fazalur Rahman v. General Manager SIDB PLD 1986 SC 158 and Malik Aman v.
21. Land Acquisition Collector PLD 1988 SC 32, that the Court is competent to award increase in the compensation in consideration of compulsory acquisition of land. Suffice it to say, there is no cavil with the proposition of law laid down in the aforementioned cases. Here the Tribunal has taken into account all the factors which ought to and should have been taken into account under section 23 of the Land Acquisition Act while determining value of the land in E dispute for the purpose of compensating the petitioners and the compensation was increased accordingly, but since the question of further enhancement of compensation is a matter relating to appreciation of evidence, the same cannot be undertaken in these proceedings. In so far as the grant of three supplementary awards is concerned, which are subject-matter of Writ Petition No,717 of 1977, suffice it to say that only one award is to be announced by the Land Acquisition Collector and the law does not envisage "supplementary award" in respect of objections relating to measurement of the land, the amount of compensation, the persons to whom it is payable or the apportionment of the compensation among c the persons interested. Such a dispute can only be made by making an appropriate reference under section 18 of the Land Acquisition Act as is apparent from its bare perusal. Section 18 may be reproduced with advantage:-- 18.Reference to Court. ---(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the 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 the 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."
22. 15.In the instant case, a bare perusal of the application under section 18 made by the petitioner on 29-1-1973 before the Collector would show that the grievance of Zafar Rai was that the Land Acquisition Collector had wrongly calculated the ownership of the land as 54 Kanals 83 sq. Ft. And on that basis, the following relief was claimed in the said reference:-- "In the circumstances, it is most respectfully prayed that the impugned award dated 30-8-1972 be set aside and order may be passed for giving the applicant:--
(i) The compensation for his whole land i.e, 70 kanals 10 marlas and 25 sq. Ft. At the rate of Rs,1,500 per marla.
(ii) Compulsory acquisition charges @ 15% of the market price under section 23(2) of the Land Acquisition Act and special allowance according to the market price under section 48-A of the Land Acquisition Act.
(iii) Interest at the current rate on the market value.
(iv) The costs."
16. The question whether the petitioner was entitled to compensation to the extent of area measuring 70 kanals 10 marlas and 25 sq. Ft. And not for an area measuring 54 kanals and 83 sq.
23. Ft. As stated in the original award could only be determined by the Tribunal on the basis of the reference made to it. The Land Acquisition Collector had, after announcement of the first award dated 30-8-1972 become functus officio and had no jurisdiction to increase the compensation through contrivance of the three supplementary awards. The method adopted by the. Land Acquisition Collector in awarding the supplementary awards is not supported by any provision of law and is ex facie without lawful authority. I am fortified view by the judgment of the Supreme Court in the case of Raja Sultan Zaman WAPDA PLD 1988 SC 29, -wherein such awards were declared as without lawful authority and the :undesirable practice in -regard thereto had been deprecated. The relevant portion of the: judgment reads.
24. It is however clear that section 23 deals with some matters to be . Taken into consideration for awarding compensation few the 'land'. The sub-clauses of subsection (1) thereof do not independently relate to separate properties to be compensated separately. They are some of the `considerations' or the 'matters' which can be taken into, account regarding the land, the compensation for which is to be determined. Thus, it is 'to be one whole compensation. It was so determined here in the first original award. If the petitioners felt aggrieved then the matter mentioned in clause fourthly of section 23(1) was, not taken note of in that award proper remedy through reference should have been sought. A new, or supplementary award as if for another property or person could not have been sought or obtained in this behalf. The entire exercise of the supplementary awards in dispute regarding loss of earnings, in these two petitions was misconceived "and the awards have rightly been set aside."
25. 17.Reference be also made to the case of Prag Narain v. The Collector of Agra (AIR 1932 Privy Council 102), notices in the case of Raja Sultan Eraj (Supra); wherein it was held that the duty of the Collector under section 11 Of the Land Acquisition Act was to make an award in regard to three matters viz. (1) the area of the land included in the award; (2) the total compensation to be allowed for that land; and (3) the apportionment of that compensation among all the persons interested in that land. It was held that any one piece of land in which more than one persons have interest, for which they can claim compensation ought not to be made subject of more than one award.
26. 18.When faced with this, Mr. Dilawar Mahmood, learned counsel for the petitioner vehemently argued that the petitioner never raised an objection before the Tribunal regarding invalidity of the supplementary awards nor this question had been raised by the Lahore Development Authority in Writ Petition No,420 of 1977 and, therefore, they cannot be permitted to raise this question. The contention has no force. The question raised by Mr. Khaqan Babar goes to the root of the case. It is true that this point was not taken in the writ petition, but with permission of the Court Mr. Khaqan Babar was allowed to raise this point and the case was adjourned to enable the learned counsel for the parties to further prepare it. Mr. Dilawar Mahmood then argued that the ratio laid down in the case of Sultan Eraj Zaman (supra) would not apply to the case of the petitioner, in that, two additional supplementary awards were announced with regard to loss of earnings, which was not noticed earlier by the Land Acquisition Collector. Here the dispute relates to a separate property and, therefore, there was no bar to the impugned supplementary awards being given and the same did not suffer from any invalidity. I am afraid, the ratio laid down in the aforementioned authorities is quite clear and does not support the argument of Mr. Dilawar Mahmood.
27. Notwithstanding the legal position as stated above, in view of the dictum laid down by the Supreme Court in Nawab Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236, this is not a fit case for interference in the impugned order. I further find and Muhammad Zafar Rai petitioner took a specific ground in the reference that the Land Acquisition Collector wrongly calculated the land owned by him as 54 kanals and 83 sq. Ft. The Lahore Development Authority never disputed this question of fact before the Tribunal nor led any evidence to the contrary. On the other hand, it is stated in paragraph 4 of the Writ Petition No,420 of 1977 filed by the Lahore Development Authority that the total land owned by Muhammad Zafar Rai in the said Scheme comes to 69 kanals 4 marlas 39 sq. Ft. Falling in Khasra Nos.9337, 9382 to 9385, 9387, 9389 to 9399, 9401, 9423, 9487 and 10372, Mauza Ichhra, and therefore, on this short ground alone the petitioner Muhammad Zafar is entitled to claim compensation for the land owned by him. Here a finding of fact has been recorded by the Tribunal regarding the land owned by the petitioner and was assessed accordingly on the basis of uniform rate of compensation for the, entire land of the petitioner forming subject-matter of the original award as well as three supplementary awards.
28. Viewed from this angle as well the making of the three impugned supplementary awards has not affected merits of the case. Furthermore, the land in dispute was acquired vide notification dated 29-5-1965 and substantial justice having manifestly been done to the parties, I am not inclined to interfere in the exercise of my discretionary Constitutional jurisdiction.
29. 19.Mr. Imran Malik, learned counsel for the petitioners in Writ Petition No,522 of 1983, submitted that he had nothing to add to the submission of Mr. Dilawar Mahmood and adopted his arguments relating to the impugned award, in that, no supplementary award had been made in his case. The relief for enhancement of compensation in this petition is also based on appreciation of evidence, which as earlier pointed out cannot be undertaken in these proceedings.
20. Adverting to Writ Petition No,420 of 1977 filed by the Lahore Development Authority, the arguments raised by Mr. Khaqan Babar were mainly restricted to the quantum of increased compensation granted by the Tribunal. This plea is also based on appreciation of evidence which cannot be gone into in the exercise of Constitutional jurisdiction.
30. In view of the foregoing discussion, all the three writ petitions are dismissed, but the parties shall bear their own costs.