' MIAN ALLAH NAWAZ, J.---Regular First Appeals bearing Nos.37 and 58 of 1970 are interconnected and arise out of acquisition proceedings regarding 5 acres, 3 kanals and 10 marlas situated in Chah Pannewala in revenue estate Taraf Jumma Khalsa within the municipal limits of Multan.
2. The facts are Not much in dispute. A few undisputed facts arc; that the land was evacuee in nature. The Multan Improvement Trust conceived a development scheme at this land and invoked the provisions of Sections 24/25 in conjunction with Section 28 of the Punjab Town Improvement Act for the purpose of initiation of acquisition proceedings. On 9-64955 a resolution was passed by Improvement Trust (hereinafter referred to as the Trust). The resolution was published thrice in the Government Gazette. The Trust obtained the sanction of Federal Government under section 13(3)
(b) of the Pakistan (Administration of Evacuee Property) Ordinance, 1956 on 28414956. The Government of West Pakistan sanctioned the scheme vide an order dated 9-8-1962 which was published in the Government Gazette on 29-6-1962. Necessary formalities were completed and the case was referred to the Land Acquisition Collector for the purpose of assessment of compensation. The narrative will Not be completed without stating that on account of delay in execution of this scheme, the Federal Government revoked the sanction of sale of land in favour of the Trust and allotted property to Commander Faiz Illahi, Mahmood Illahi, Capt. Mahboob Illahi and Maqbool Illahi (herein appellants) in R.FA. No, 37 of 1970. The Trust took over the possession of the land and the matter was referred to Land Acquisition Collector for the purposes of assessment of compensation. The Land Acquisition Collector by means of award dated 16-2-1966 assessed the compensation at the rate of Rs,24,876.80 per acre. Feeling dissatisfied with this assessment Faiz Illahi and others expropriated owners filed application on 29-3-1966 under Section 18 of the Land Acquisition Act for claiming reference thereunder. It was claimed therein that the price of the land at the time of acquisition was Rs, 2,00,000 per acre.
3. The reference was resisted. On the pleadings of the parties, following issues were framed:-
(1) Whether the objections of the petitioners are time-barred?
(2) Whether the petitioners have accepted the award and are estopped from challenging it?
(3) Whether the petitioners were Not given any Notice regarding passing of the award and what is its effect?
(4) Whether the compensation awarded is Not correct? If so, what is the correct compensation?
(5) Whether the petitioners are entitled to the amount of compensation at the market rate of the year 1961-62 and what is the amount of compensation of that period?
(6) Whether the petitioners have Not been granted any compensation for trees and constructions; if so, to what amount they are entitled in this regard?
(7) Relief.
The reference Court, upon the consideration of evidence adduced by both the parties fixed the compensation at the rate of Rs,48,000 per acre without awarding 15% compulsory acquisition charges and without awarding the compensatory interest under sections 28 and 34 of the Act.
4. Feeling aggrieved with this award both expropriator and expropriated owners have filed these appeals.
5. In disputing the correctness of award Mr.Z.A.Burki appearing on behalf of the owners raised following points:-
(i) It was contended that the Land Acquisition Collector must have assessed the value of the land prevailing in the locality in August, 1962 and Not according to the price prevailing at the date of resolution of the Trust dated 9-6-1955. It was canvassed that there was ample evidence on record which established that the value of the land in year 1962 was about Rs,2,00,000 per acre. Reference was made to transactions of sales incorporated in Mutation No,4365 attested on 28-8-1961 Exh, P-8, Mutation bearing No,4454 attested on 29-9-1961 Exh P-9, Mutation No,4584 attested on 26-1-1962 Exh.P-10, Mutation No,4601 attested on 24-2-1962 Exh.P-11, Mutation No,4602 attested on 24-2-1962 Exh, P42, Mutation No, 5001 attested on 3-6-1963, Exh. P-13, Mutation No,4486 attested on 29-9-1961, Exh. P-14, mutation of sale bearing No, 4497 attested on 3140-1961 Exh. P-15, mutation of sale bearing No,4490 attested on 31-10-1961 Exh. P-16, mutation of sale bearing No,4801 attested on 27- 9-1962, Exh.P-17, mutation of sale bearing No,4560 attested on 23-12-1961 Exh. P-18, and mutation of sale bearing No,4565 attested on 28-7-1962 Exh. P-19. It was argued that these mutations were completely overlooked by the referee Court and that the appellants were entitled to receive compensation at the rate given in these sales that these mutations conclusively reflected the rate prevalent in the locality at which willing buyers were purchasing the land at the rate Not less than Rs,2,00,000 per acre.
(ii) It was next contended that even if it is assumed that the owner made a claim lesser than the amount claimed in the application. The Court was Not bound by the statement of the owner and was required to fix the compensation after taking into consideration the circumstances mentioned in sections 23 and 24 of the Land Acquisition Act (hereinafter referred as the Act)
' The reliance was placed on M. Samiullah v. Collector of Aligarh (AIR 1946 P.C.75)
' It was then maintained that the appellants were entitled to compensatory compensation at the rate of 15% compulsory acquisition charges under subsection (2) of Section 23 of the Act and that sub-clause (2) of clause 10 in schedule to Town Improvement Act, 1922 was invalid, ultra vires of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973. It was suggested that this clause being confiscatory in nature was opposed to the principle of fair compensation and so could Not be given effect to in view of the clear mandate in the Constitution. It was further added that the appellants were entitled to interest under Sections 28 and 34 of the Act. No other point was urged.
6. In reply, the learned counsel appearing on behalf of Government of Punjab supported the award, while learned counsel appearing on behalf of Multan Improvement Trust in R.F.A. No,58 submitted that the assessm ent made by the reference Court was illegal and was at higher side. Regarding the question of 15% compulsory acquisition charges and interest under Sections 28 and 34 of the Act, it was contended that the acquisition proceedings were initiated under Town Improvement Act, 1922, were completed under the said Act and so the appellants were Not entitled to claim 15% compulsory acquisition charges plus interest under Sections 28 and 34 of the Act. The proviso to sub-clause (2) of Clause 10 in schedule to Punjab Town Improvement Act (IV of 1922) (hereinafter referred to as the Act IV) was pressed into service.
7. We have heard the learned counsel for the parties at length and perused the record of the case with their capable assistance and hereon proceed to determine their respective contentions.
8. We will first take up the contention of the learned counsel for owners regarding maintainability of R.F.A. No,58 of 1970 by Multan Improvement Trust Now Multan Development Authority. The contention of the learned counsel for owners is built upon the rule laid down in Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad and others. (PLD 1987 S.C. 485). The relevant passage from this case may be quoted with advantage:- "We agree and would add that the order of the Civil Court on reference made to it by the Land Acquisition Collector is Not an independent order but merely a substitutive order, whereby the award of the Land Acquisition Collector is substituted by the order of the Civil Court, which order then becomes the award. Since, by virtue of subsection (2) of section 50 of the Act, the award made by the Land Acquisition Collector is fmal and canNot be challenged except by a party which has expressly been conferred the right of appeal, hence respondents Nos.1 and 2 who did Not have any such right expressly conferred on them, did Not have any locus standi to file an appeal. As already observed, No such right is to be assumed on any a priori ground and a right of appeal can be exercised only if it has been expressly conferred on a party by statute.
' Furthermore, neither the Central Government Nor the Military Estate Officer can be deemed to be parties who have been adversely affected by the order of the Civil Court. If the Central Government or the Military Estate Officer could get the land in question more cheaply by private negotiations they can refuse to accept the land at the price determined by the Court. They canNot have it both ways. Having chosen to set in motion the special powers given to the Government to acquire land under the Land Acquisition Act for public purposes they are to be confined to those provisions and cannot claim further rights and higher privileges than those provided for under the provisions of the said Act. Since under the provisions of the Act only a special and limited appeal is provided for against the award of the Court, which in the facts and circumstances of this case would be availed of by the Provincial Government or the Collector, No other party including the appellants herein could avail of a right of apeal. As neither the Provincial Government Nor the Collector chose to file an appeal, the appeal filed by the Central Government and the Military Estate Officer was indeed an appeal filed by "strangers" having No locus standi to file it."
' The same principle was reaffirmed in Behram Khan and 54 Military Estate Officer and 2 others 1988 SCM R 1160 and in Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner
(East) Karachi and others 1989 SCM R 812. In this case the Pakistan Steel Mills Corporation Limited a company for whose benefit land was acquired under the Act filed an appeal against the order of reference Court under section 18 of the Act. The High Court relying upon the rule laid down in Pir Khan's case dismissed the appeal. The Pakistan Steel Mills Corporation instituted a Civil petition for leave against the order of the High Court. The Supreme Court re-affirmed the rule laid down in Pir Khan's case and dismissed the petition.
' In this sequence is the case of WAPDA v. Muhammad Farid and others 1990 SCM R 98, in which case the WAPDA filed civil appeals against the judgment of High Court. In this case the learned Attorney-General took up the point that in Pir Khan's case certain provisions of the Constitution of Pakistan were overlooked namely Article 152 which inter alia provides that" the Federation may, if it deems necessary to acquire any land situate in a Province for any purpose connected with a matter with respect to which Parliament has power to make laws require the province to acquire the land on behalf and at the expense of the Federation", Article 149 empowers the Federal Government to give all necessary directions to a Province. Therefore, it was contended that the Federal Government in view of these Constitutional provisions was a necessary party in proceedings relating to acquisition made by the Province on its behalf. The Supreme Court granted leave and held that Pir Khan's case was decided by the three Judges of the Supreme Court. The rule laid down in Pir Khan's case was approved by a Bench comprising of 5 Judges of Supreme Court. It was, therefore, necessary that this case be placed before a larger Bench of 7 Judges.
9. We have considered the ratio decidendi in Pir Khan's case. We are quite clear in our mind that the Multan Improvement Trust (hereinafter referred to as the Trust) for which land was acquired had No locus standi to file appeal under Section 54 of the Land Acquisition Act (I of 1894)
(hereinafter referred to as the Act). If the Trust was aggrieved of the award of the reference Court it could have straightaway declined to acquire the land and abandon the scheme. In result, the appeal filed by the Trust is found to be incompetent and is accordingly dismissed.
10. Having dealt with the question regarding the maintainability of R.FA. No,58 of 1970 by the Trust and having already described the facts, findings of the reference Court and contentions of the parties, we herein proceed to determine R.FA. No,37 by owners on merit. The points calling for consideration, emerging from the arguments of the parties can be summarised as follows:-
(i) Whether the referee Court was correct in disallowing 15% compulsory acquisition charges and compensatory interest under Sections 28 and 34 of the Act?
(ii) Whether the Court was competent under the law to assess compensation on the basis of sales pertaining to period commencing from November, 1954 to 1955?
' We will take up the question No, (i) first. This is a pure question of law. The abjection is premised on the ground that the provision 10 (2) of schedule of Act IV of 1922 is incorrect, ultra vires of section 299 of the Government of India Act, 1935. Articles 24 and 25 of the Constitution. There is No cavil with the fact that the acquisition proceedings were initiated on 9-6-1955 when Government of India Act was still in force. The relevant provisions dealing with this issues are as follows:- Section 299 of the Government of India Act, 1935.
"299.--(1) No person shall be deprived of his property save by authority of law.
(2) Neither the Dominion Nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land or any commercial or industrial undertaking or any interest in, or in any company owing any commercial or industrial undertaking, unless the law provides for payment of compensation for the property acquired and either fixes the amount of the compensation or specifies the principle on which, and the manner in which it is to be determined.
(3) No Bill or amendment making provisions for the transference to public ownership of any land or for the extinguishment or modification of rights therein, including rights or privileges in respect of land revenue, shall be introduced or moved in the Dominion Legislature without the previous sanction of the GoverNor-General, or in Chamber of a Provincial Legislature without the previous sanction of the GoverNor.
(4) Nothing in this section shall affect the provisions of any law in force at the date of the passing of this Act.
(5) In this section "Land" includes immovable property of every kind and any rights in or over such property, and "undertaking" includes part of an undertaking.
10 (1) and (2) of Schedule of Act IV of 1922.
10 (1) In clause first and clause sixthly of subsection (1) of Section 23 of the said Act, for the words "publication of the declaration relating thereto under Section 6" and the words "publication of the declaration under section 6" shall be deemed to be substituted---
(a) if the land is being acquired under subsection (3) of section 32 of this Act the words "issue of the Notice under sub-section (3) of section 32 of the Town Improvement Act, 1922" and
(b) in any other case the words "first publication of the Notification under section 36 of the Town Improvement Act, 1922.
(2) The fullstop at the end of subsection (2) of section 23 of the said Act shall be deemed to be changed to a colon and the following proviso shall be deemed to be added:- "Provided that this subsection shall not apply to any land acquired under the Town Improvement Act, 1922."
' The aforeNoted provisions came up for consideration in M. Salim Ullah and others v. (1) Province of West Pakistan and (2) Land Acquisition Collector, Lyallpur (PLD 1960 (W.P.) Lahore 450). In this case 12 owners of land instituted a Constitution petition against the award of Land Acquisition Collector, assessing the price of acquired land at the rate of Rs,1,627-6-0 per acre. The land was situated on main Lyallpur Station Metalled Road and was within the proposed new boundary of Lyallpur Municipality. The land was acquired for the purpose of Satellite Town. The Land Acquisition Collector had disallowed 15% compulsory acquisition charges to the owners. It was prayed that the award of the Land Acquisition Collector be set aside, the provision of 10 (2) of Act IV of 1922 be declared ultra vires of Section 299 of the Government of India Act, 1935. After the survey of the relevant case-law and the provisions Noted above, the Division Bench of this Court accepted the petition and concluded that the provision of 10 (2) of schedule of Act IV of 1922 was ultra vires of the Section 299 of the Government of India Act. The relevant passage from the opinion of the Division Bench delivered by his Lordship Mr. Justice M.R. Kiani, who was then the Chief Justice is worth reproducing, which is as follows:- "Clause 10 of the Schedule to the Punjab Town Improvement Act, 1922, therefore, violates the principle enunciated in section 299 of the Government of India Act; and would have been bad law if it had Not been a "law" in force at the date of the passing of the Government of India Act, 1935, and, therefore, protected by subsection (4) of section 299 thereof. This protection was extended in 1951 by the addition of subsection (4-A) to laws made "within a period of three years next after the establishment of the Federation", and in 1956, the period of three years was extended to five years retrospectively. Now, since the amendment of 1953 is neither existing law, Nor a law made within five years of the Federation in so far as it conflicts with section 299, it is beyond the competency of the Legislature. We, therefore hold that clause 10 of the Schedule canNot, to this extent, be applied to satellite towns, and that compensation for the acquisition of land for such towns should be assessed purely under the Land Acquisition Act.
11. The view taken in Saleem Ullah's case was approved by the Supreme Court in Province of West Pakistan and the Revenue Assistant, exercising the Power of Land Acquisition Collector. Lyallpur v.
M. Salim Ullah and others (PLD 1966 SC 547).
12. Applying the ratio in Saleem Ullah's case, to the facts of the case we are of opinion that the reference Court was Not justified, in refusing the award of compulsory acquisition charges plus compensatory interest under sections 28 and 34 of the Act.
13. Now we proceed to examine the second question. It is hardly necessary to repeat that scheme was conceived by the Trust in year 1955 and resolution to this effect was got published thrice in Government Gazette. We further Note that the relevant Gazette Notification has not been brought on record by the parties. It is also Not in dispute that the Government of West Pakistan sanctioned the scheme by means of order dated 8-9-1962 and the matter was referred to the Land Acquisition Collector. The Land Acquisition Collector rendered the award on 16-12-1966 by assessing compensation on the basis of sales commencing from November, 1954 to 1955, it is necessary to examine the nature of the Act. It is a settled principle of law that the power of Government to take private property/land for public use by the State, Municipalities and Corporation rests upon the doctrine of eminent domain. The scope of the word eminent domain is defined in Black's Law Dictionary in following words. It is the right of the State, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the State on account of public exigency and for the public good. Thus, in time of war or insurrection, the proper authorities may possess and hold any part of the territory of the State for the common safety; and in time of peace the legislature may authorize the appropriation of the same to public purposes, such as the opening of roads, construction of defences, or providing channels for trade or travel.
Eminent domain is the highest and most exact idea of property remaining in the Government, or in the aggregate body of the people in their sovereign capacity. It gives a right to resume possession of the property in the manner directed by the Constitution and the laws of the State, whenever the public interest required it.
14. The Act being expropriatory/confiscatory in nature is to be given strict construction. This point came up for consideration in Islamia University, Bahawalpur through its Vice-Chancellor v. Khadim Hussain and 5 others (1990 M LD 2158). After surveying Sections 23 and 24 of the Act and the case- law, following principles in respect of assessment of compensation were laid down:-
(1) The market value or market price means the price property would fetch in the market. The price will be highest price a willing buyer would pay and a willing seller would accept both being fully informed and the property being exposed for a reasonable period of time.
(2) The market value may be different from the price a property can actually be sold at a given time. The market value is that price which property might be expected to bring if offered for sale in a fair market.
(3) In assessing the compensation the potential value i,e. The benefits, advantages arising from the present use and future use are to be taken into consideration.
(4) The inflationary trend and depreciation in currency of the country between the date of acquisition under section 4 of the Act and the date of award also should not be totally ignored and be taken into consideration.
15. It is evident from the foregoing examination that the Court has power to examine the inflationary trend, depreciation in the currency of the country between the date of acquisition under section 4 of the Act and date of award also apart from the date of notification under section 4 of the Act.
16. We have noticed the evidence furnished by the appellants as well as the respondent. The evidence is both oral as well as documentary. The evidence of appellants comprises of P.W.1, Rab Nawaz Patwari, Halqa Taraf Juma Khalsa, P.W.2, Ghulam Shabbir, Mehboob Ellahi one of the appellants as P.W.3 and documentary evidence consisting of Ex.P.1 to P-22. The mutations Exh. P.14 and P.25 pertain to sales having been made on 22-1-1955 and 3-5-1956 while Ex. P.25 pertains to sale having been made on 11-12-1966. The sales incorporated in Exhs. P.3, P.27 and P-18 relate to year 1958. Ex.P-19 and P-26 are of year, 1960, Exhs.P.15, P.8, P.13, P.9, P.16, P.12, P.11 and P.17 relate to the year, 1961. The last one relates to the year 1962.
17. It is hardly necessary to take into consideration the mutation of sales noted above. The price of sale in each mutation is variant. The most noteworthy feature of the case is that P.W.3 Mehboob Ellahi (herein appellant) when appeared in witness box stated that the market value of the land at the time of award was between Rs,24,000 to Rs,30,000 per Begha. This assessment is not in consonance with the price of sale given in mutation of sale. It is settled principle of law that the admissions under Article 151 of Qanun-e-Shahadat, 1981 although are not conclusive proof of matter admitted, yet are of decisive significance, if they remain unchallenged. We are, therefore, of opinion that in view of price given by the appellants in a statement made under oath is to be preferred to documentary evidence furnished by them. It is evident from the record that the appellant neither tried to controvert the evidential value of his admission nor even disowned this value in the memo of appeal. We are, therefore, clear in our mind that the price of land given by the appellant in his statement is an admission and is binding on the appellant. We are further of the view that the reference Court was not justified in assessing the compensation on the basis of sales relating to the period of year 1955 to 1959.
18. In result we accept the appeal of the owners to the extent of compensation and enhance it from Rs,48,000 per acre to Rs,60,000 per acre. The appeal filed by the Trust fails and is dismissed with costs throughout.
19. In view of our finding, the compensation to the appellant shall be in the following terms:- {{TABLE}} Market value at the rate of Rs,60,000 per acre. Rs,3,02,250 Compulsory acquisition allowance at the rate of 15% Rs,45, 337.50 Total: Rs,3,47,587.50 Less already awarded Rs,2,41,800.00 Additional compensation. Rs,1,05,787.50
20. The appellant shall be entitled to compound interest @ 8% of enhanced compensation with effect from the date of taking of possession of land by Trust. Further more the appellant shall be entitled to compensatory interest @ 8% per anum from the time of taking possession under Section 34 of Land Acquisition Act, if the amount of compensation determined by the Land Acquisition Collector was not paid or deposited on or before taking the possession of the land.