FAZAL ILAHI KHAN, J.---Both these petitions are directed against the judgment and decree dated 13-2-1995 of the Peshawar High Court, Circuit Bench, Abbottabad, whereby, while maintaining the judgment of the Land Acquisition Judge dated 23-1-1993, whereby they enhanced compulsory acquisition charges from 15 per cent. To 25 per cent. In pursuance of the amendment made in subsection (2) of section 23 of the Land Acquisition Act, 1894.
2. Notice under section 4 of the Land Acquisition Act, 1894, hereinafter to be referred as Act, for acquisition of land measuring 4/5 Kanals including the land belonging to petitioners; namely Malik Muhammad Iqbal and Malik Muhammad Ashraf, situated in the limits of village Shadi Tehsil'Haripur for the benefit of Mustehkam Cement Company, hereinafter called the Company, as required for vide letter dated 23-7-1981, addressed by its Managing Director was issued on 17-10-1981.
Subsequently a corrigendum for 290 'Canals was issued on 20-5-1982. The Notifications under sections 6 and 17 of the Act were issued on 10-11-1982. Notices under sections 9 and 10 of the Act were served on the effected-respondents. They submitted their claims. It was stated that the land has residential potentiality and is covered by orchard which is irrigated through tube wells and it is surrounded by industrial area. The Collector supplied the list of fruit bearing trees to the technical staff for valuation, the list of houses was prepared and sent to Building Division for assessment of its compensation, reports were obtained from the revenue authority regarding classification of the land and all these reports were under consideration, when the Collector tentatively demanded a sum of Rs,90,05.036 from the company. A sum of Rs,10,00,000 was placed at the disposal of the Collector while the additional amount of Rs,80,00,000 was still awaited, that the representative of the company and the aforementioned land-owners started negotiation for working out fair compensation of their land. The negotiated settlement arrived at between the parties was reduced into writing vide OW-3/X-8 which was duly signed by Malik Muhammad Ashraf (now dead) and Malik Shaukat Khan, son and special attorney of Malik Muhammad Iqbal on the one side and the two managers of the respondent company from the other. According to negotiated settlement the compensation of the petitionersacquired land was fixed at Rs,20,00,000 with 15 per cent.
Compulsory acquisition charges on 28-12-1983 and under the agreement a sum of Rs,18,00,000 was paid to the petitioners.
3. The Collector in pursuance of this negotiated settlement made an award. The petitioner, however, filed an objection petition against the award under section 18 of the Act in which they prayed for its reference to the Acquisition Judge for determination of fair compensation of their acquired property. On reference the learned Acquisition Judge on 15-3-1985 dismissed the objection petition on the ground that valuation has been fixed on the basis of negotiation between the parties the objector had therefore no cause of action. In appeal by the objector the judgment of the learned Acquisition Judge was set aside and the case was remanded by the learned High Court on 13-9-1986 after re-casting the issues as under:--
(a) Whether the petitioner has received the amount of compensation without protest, if so, its effect?
(b) Whether there was legally constituted a negotiation committee under authority which has assessed the compensation of the property with consent of the parties and to what effect?
(c) Whether the petitioner is estopped to challenge the award and to ask for the enhancement of compensation?
(d) Whether the petitioner is entitled to the compensation of his land at the rate of Rs,90,00,000 per Kanal or so?
4. Order of remand dated 23-9-1986 was challenged by the company in Civil Appeals Nos. 432 and 433 of 1986 before this Court and both of them were dismissed on 8-3-1989 with the observations as under:-- "The main question, and this is common ground to them to give a finding whether the reference under section 18 was competent, it is necessary to determine whether the agreement allegedly made between the parties regarding the amount of compensation payable to the respondent was lawfully made."
5. In compliance with the order of remand the Acquisition Judge decided issues 1, 2 and 3 in favor of acquiring agency and on such finding dismissed the objection petition on 13-12-1989. The matter again came for hearing in R.F.A. No,3 of 1990 before the Honorable High Court and it was observed that reference Judge failed to give its finding on the issues in the light of the evidence particularly that on issue No,4 in spite of specific directions per order of remand so the judgment suffered corn infirmity and the matter was again remanded on 26-6-1990. Again the order of remand was challenged by the Government of N.-W.F.P. Through Collector Acquisition in Civil Appeals Nos. 818 and 819 of 1990, both these appeals were dismissed on 19-2-1992 with the following observations:-- "However, we do agree with the learned counsel that in this case there is a controversy as to what is the effect of the acceptance of Rs,18 lacs of compensation by the respondents. But the learned counsel failed to notice that this particular controversy is the subject-matter of issues re-cast by the High Court, other than issue No,4. No doubt the point raised by the learned counsel did require examination and decision but independent thereof there was a need for examination of the controversy visualized by the High Court in the earlier round in the recast issue No,4; which is to the effect; whether, compensation in this case for the land in question can be "at the rate of Rs,90000 per Canal or so."
6. The learned Additional District Judge after re-examining the merits of the case dismissed the reference vide judgment dated 23-1-1993 after giving its finding on all the issues against the petitioner/objector. The judgment was challenged in R.FAs. Nos. 42 of 1993 and 43 of 1993. Justice Jawaid Nawaz Khan Grandeur, the learned Judge in his detailed judgment reconsidered the grounds on which the judgment of the learned Acquisition Judge was challenged and dismissed the appeals on 13-2-1995 against which leave to appeal is prayed for.
7. The judgment of the learned High Court is challenged on the ground that the Acquisition Collector was bound under section 23 of the Act to determine fair compensation of the acquired land, that Collector under section 23 was required to examine the entire record and base his independent judgment on such record which he failed to do as the award was based on the agreement between the parties. In support thereof reliance was placed on M. Samiullah-- appeallant v. Collector of Acquisition-respondent (AIR 1946 PC 75). It was contended that the learned High Court did not comply with the mandatory provision of law as it did not attend to the grounds of appeal and on which the judgment of the learned Acquisition Judge was challenged and failed to give decision thereon. It, was further contended ;that there is no estoppel against the Statute, therefore, the agreement on which the award is based even if approved to have been validly made, could not debar the Collector from looking into other evidence in determining the compensation. It was further contended that Malik Muhammad Shaukat, got the general power of attorney from Muhammad Iqbal, his father, through misrepresentation and when the petitioner came to know of it he revoked the same before the so-called agreement.
8. In order to appreciate the contentionsraised before us it would be appropriate to give the background of the present ease. Initially the land measuring 515 Canals was proposed to be acquired and in order to work out the tentative compensation for the land, the valuation of the fruit bearing and non-fruit bearing trees and the constructed portion of the area were called for from the relevant agencies. It may be \pointed out that subsequently corrigendum for 290 Canals 6 Marla's was issued vide Notification No,2144 dated 20-5-1982 and similarly Notification No,14618- 14625 under sections 6 and 17 of the Act were issued on 10-11-1982. As considerable portion of the proposed land was tube well irrigated, therefore, the Company addressed a letter to the Deputy Commissioner, Abbottabad as under:-- "The Deputy Commissioner, ABBOTTABAD.
Subject: ACQUISITION OF LAND FOR MUSTEOKAM CEMENT LIMITED Dear Sir, Kindly refer to your Letter No,704/ACQN, dated 24th May, 1983 on the above subject and the meeting the undersigned had with you on 2-6-1983 at your office.
During the course of discussion it appeared that the land (490 Kanals and 6 Marlas) included some .243 Kanals and 5 Marlas of tubewell irrigated land as detailed below, the price of which will naturally be very high and Mustehkam Cement, being a public sector organisation, cannot afford to pay such high price on the land required for extraction of clay to be used in the manufacture of cement as such irrigated or non-irrigated land is of least importance to us.
KHASRA No.AREAKANALS MARLAS 287 3 14 288 32 12 289 5 12 290 62 13 291 66 19 314 63 3 319 9 2 243 5 On realization of the facts, you were kind enough to agree to our genuine submission that the above land will be dropped from the total land of 490 Kanals 5 Marla's proposed to be acquired and remaining 247 Kanals 1 Marla will be acquired for the above purpose. We therefore request your goodself to drop tubewell irrigated land stated to consist of 243 Canals 5 Marla's and arrange to acquire the remaining land of 247 Kanals 1 Marla out of 490 Kanals 6 Marlas.
An amount of Rs,100,000.00 already deposited with your office and balance required will be deposited with you on short notice immediately after the award is declared please.
Thanking you, Yours faithfully, For Mustehkam Cement Limited.
Note.--Our letter of even number dated June, 7, 1983 be treated as cancelled.
(Sd.)
Zakir Muhammad Managing Director.'
9. In the meantime, efforts for negotiated settlement were going on with the land-owners. The petitioners being owners of the acquired land, one of them i,e, Malik Muhammad Iqbal executed a registered power of attorney on 20-6-1983 in favour of Malik Shaukat Khan, his son. It is specifically mentioned in the said registered power of attorney that he being owner of agricultural land under acquisition being an aged person empowers his son Malik Shaukat Khan to pursue the acquisition proceedings in respect of the land required for Mustehkam Cement Factory Faroqia. He was empowered to do all the needful detailed therein including his power to compromise and appoint arbitrator and to receive compensation. It was on the strength of such power of attorney that Malik Shaukat Khan and Malik Muhammad Ashraf, brother of Muhammad Iqbal, co-owner of the acquired land, entitled into a negotiated settlement with Malik Muhammad Bakhsh, Senior Manager Finance, and Mian Azizur Rehman, Senior Manager Sales, Mustehkam Cement Factory Faroqia, on behalf of the company and made their joint statement before the Collector in respect of land measuring 243 Kanals 5 Marlas bearing Khasra Nos. 287, 288, 289, 290, 291, 314 and 319 and the valuation agreed upon was as under:--
(1) Price of land @ Rs,5,457.40 paisa per Kanal, amounting to Rs,13,27,439.50.
(2) Price of tubewell, houses and trees situated in the abovementioned land: Rs,6,72,560.50 Total price of this land was worked out to be Rs,20 lacs with 15% compulsory acquisition charges as admissible under the law.
10. The above negotiated settlement reduced into writing was duly signed by Malik Shaukat Khan (Attorney of Malik Muhammad Iqbal, petitioner), Malik Muhammad Ashraf, the land-owner and Muhammad Bakhsh, Senior Manager Finance and Mian Azizur Rehman, Senior Manager Sales on behalf of the company on 6-7-1983. This settlement stands rebutted on the record.
11. In pursuance of such settlement, petitioners received the compensation amount of Rs,19 lacs on 19-7-1983 and 7-9-1983 before the award was made and announced while the remaining amount was received on 24-5-1984 and 12-6-1984. The major portion i,e, Rs:19 lacs of the compensation was received in pursuance of the above settlement without any protest and reservation while the smaller portion of it i,e, the remaining amount was received under protest.
12. The learned Collector while making the award did take into consideration the average price of the land worked out on the basis of sales transactions made between 20-5-1981 and 20-5-1982 i,e, a year prior to the issuance of corrigendum. The negotiated settlement was accordingly relied upon and the claim made for compensation at enhanced rate was found unreasonable and rejected. It: therefore, cannot be said that the Collector did not apply his mind and failed in making his own judgment in determining fair compensation for the acquired land. There is no dispute with the legal proposition put forward by the learned counsel for the petitioners that the Collector while determining compensation of the acquired land has to apply his own mind to exercise his own jurisdiction and to form his own judgment but still the importance of negotiated settlement between the land-owners and the acquiring department cannot be ignored. In determining the valuation of the acquired land such settlement conforms to the cardinal principle that fair compensation of the acquired land is the one which a willing purchaser would pay to the willing seller.
13In M. Samiullah--appellant v. Collector of Aligarh--respondent (AIR t946 Privy Council 75), the facts of the case were that parties to the acquisition proceedings had agreed that for determination of value of the land all the sale deeds relating to the sales in respect of an area less than 75 yards should be struck off, and secondly, that the exemplars for evolving sales, i,e, sale deeds relating to other sales,should be taken into consideration as far back as year 1930 i,e, seven years preceding the year 1930, excluding the transaction which had same special grounds for being too high or too low or which might be inadmissible on any other ground to be decided by the Land Acquisition. Officer The Land Acquisition Collector decided to apply a flat rate in respect of the lands under acquisition and fixed that flat rate at 5 annals, 1 pie per square yard and he fixed the compensation payable to the appellant on that basis. It was, however, not shown in the award how the figure was arrived at but it was noted by the learned High Court that 28 exemplars, selected from a much larger number, which had taken place within the previous 7 years, and that he added up the number of square yards sold in such transactions and the prices paid thereon and by striking an average reached the figure. When reference was made to the Land Acquisition Judge for determination of compensation of the acquired land, it was in that context that it was held that the "agreement only relates to the evidence to be relied upon for the purpose of determining the valuation, and that the parties had not consented to be bound by the conclusion drawn by the Land Acquisition Officer on the basis of such evidence". It was also found that the determination so made was not in conformity with this statement and that flat rate was fixed and market value was not fixed in accordance with such settlement. It was further held as under:-- "It was objected by the appellant that the High Court was wrong in treating all the 28 exemplars on precisely the same footing in relation to occupancy tenants without making any inquiry into the circumstances of particular cases, and further, that 8 an. Naps per square yard is too heavy a deduction to make merely on account of trouble and expense in getting rid of occupancy tenants.
These, however, are mere questions relating to value on which it is not the practice of their LordshipsBoard to interfere, recognizing as they do, that the local knowledge of Courts in India on such matters is of the greatest value. Their Lordships will -therefore humbly advise His Majesty that the appeal be dismissed."
13. . From the bare facts of the case, stated above, it is clear that even if parties have mutually agreed to the determination of market value of the land, even then the Collector had the jurisdiction to independently determine the value and to arrive at his own judgment but that by itself would not oust the jurisdiction of the Collector to base his finding on negotiated settlement which was found reasonable. .
14. In Government of Pakistan through Secretary Communication, Islamabad---petitioner v. Abdul Alim-respondent (1987 CLC 2403), parties had agreed to pay Rs,9,894.40 per Canal as compensation for the land under acquisition through a consent letter addressed to .The Collector but the Collector determined compensation of the acquired land at the rate of Rs,15,000 per Canal.
When the objection petition to the award, made by the land-owners, was referred to the learned Acquisition Judge, the compensation was enhanced to Rs,60000 per Canal. Admittedly, the valuation fixed by the Land Acquisition Collector was not challenged by the department, therefore, when the matter came up before the learned High Court, no interference was made with the judgment. The award and the consent letter both were ignored. The reasons for ignoring such document was that firstly it was not relied upon by the Collector and secondly, that the finding of the Collector bypassing and ignoring the consent letter was not challenged by the department in competent proceedings. It was, therefore, in that context and peculiar circumstances of the case that it was observed by the learned High Court that the Collector had rightly resolved the controversy in exercise of his jurisdiction under section 23 of the Land Acquisition Act. In the instant case nothing like that had happened as the negotiated settlement was found reasonable and acted upon. . The petitioners having acted upon the negotiated settlement received major portion of the compensation amount, before the award was made and announced. There is nothing substantial on the record nor any convincing evidence was led that there was considerable difference between the value fixed through the negotiated settlement and the market value of the land, year before the issuance of notification under section 4 of the Act. Even no objection was raised before the Collector when he was making the award. It has been concurrently held by both the Courts below that the compensation agreed upon by the parties and awarded was fair enough and willfully accepted by the landowners. . We, therefore, find no force in the contention of the learned counsel for the petitioners that the Collector failed to exercise his jurisdiction in 19 accordance with law. .
15. . The contention that the learned High Court did not consider the objection raised to the judgment of the learned Acquisition Judge in the grounds of appeals is misconceived. The Appellate Court is required to address itself to the point urged before it and need not touch upon the point which are not deemed necessary by the counsel for the appellant and which is not pressed and argued, specially question of fact, and left c out. However, in a case in which the Appellate Court feels that the finding arrived at by the trial Court, which is challenged before it, is based on proper appraisal of the evidence and is in conformity with the settled principle of law need not discuss the entire evidence in affirming such finding. However, it becomes necessary when the finding of the Courts below are going to be disturbed or reversed. In the instant case, no such infirmity was pointed out. .
16. As far as the authority of the attorney to enter into negotiated settlement is concerned, the execution of the registered power of attorney is not denied. The attorney is not an outsider but the elder son of the petitioner and the nephew of Malik Muhammad Ashraf, petitioner, Malik Muhammad Ashraf joined the attorney in arriving at the negotiated settlement which cannot be presumed to be without the blessings of Malik Muhammad Iqbal, petitioner. Malik Muhammad Iqbal acted upon such negotiated settlement and received major portion of the compensation before the award was announced which fact has not been denied or challenged in the proceedings in question. It appears that Malik Muhammad Iqbal petitioner in collusion with his son and attorney after having received major portion of the compensation collusively challenged the award and resorted to the litigation. It is in the evidence that even during the reference proceedings before the learned Acquisition Judge such attorney was all along pursuing the matter.
There is nothing on the record to show that the said power of attorney was revoked to the knowledge of the acquiring department before the amount of Rs,19 laces was paid as compensation on the basis of negotiated settlement, or before the award was announced.
For what has been stated above, we find no justification to interferes D with the judgment of the learned High Court. Accordingly, leave to appeal is refused and both these petitions are dismissed. .