' It is not necessary to mention the 'lengthy details through which the present case has been passing and for the purpose of the order which I propose to pass it will be sufficient to state that by means of his order, dated 14-6-1968, the Commissioner remanded the case to the Deputy Commissioner, Capital Development Authority, for fresh determination of the compensation, if any, to be paid to the petitioner with regard to a brick-kiln situated in village Dinna Hardo, Tehsil and District Rawalpindi which was acquired by the Capital Development Authority under an acquisition directive dated 4-10-1961 issued under section 25 of the Capital Development Authority Ordinance XXIII of 1960. The order dated 14.6-1968 was challenged by the petitioner by means of Writ Petition No, 1500/1968 which was dismissed by a Division Bench of this Court consisting of A. R. Sheikh and Shaukat Ali, JJ. On 18-9-1968. Though the validity of the aforesaid order of the Commissioner has again been challenged in this petition, but, in my opinion, in the face of the previous order of this Court, this cannot be done. I hold accordingly.
2. However, to proceed with the narration of facts, it may be stated that after remand the learned Deputy Commissioner by means of his order dated 3-4-1969 (or 23-4-1969) held that the petitioner was not entitled even to a penny as compensation, because, according to him, the brick-kiln was an evacuee concern which already existed in the concerned land and the petitioner was only its lessee or sub-lessee having obtained the lease or sub-lease from Pakistan P. W. D. For a period of three years with effect from 18-3-1960 for supply of bricks to the authorities mentioned in the lease deed. The petitioner filed an appeal against that order, but the same was dismissed by the learned Additional Commissioner on 9-10.1969. The petitioner has come up in writ petition challenging also the last mentioned proceedings and orders.
3. It is significant to note that the petitioner was a lessee or sub-lessee of the land in dispute where there already existed a brick-kiln. He was granted a lease or sub-lease for supply of the bricks to P.
W. D. On 18-3-1960. The lease or sub-lease was to last for a period of three years. However, before the expiry of the aforesaid term of the lease or sub-lease, the land was acquired by means of an acquisition directive issued under section 25 of the Capital Development Authority Ordinance XXIII of 1960 by the Deputy Commissioner on 4-10-1961. The point to be attended to, therefore, was as to whether the petitioner had suffered any loss of business due to the premature termination of his lease or sub-lease or not. It was argued by the learned counsel for the petitioner that the authorities concerned failed to decide the case in this perspective which tantamounts to failure or refusal to exercise jurisdiction vested in them under the law. The contention seems to have merit. In Nishat Sarhad Textile Mills Ltd. v. Sher Ahmed Khan (1), it was laid down that in such cases compensation for loss of business, if any, could be given. Syed Sardar Shah Bokhari, learned counsel for the Capital Development Authority, argued that neither the land underneath kiln nor the kiln itself belonged to the petitioner. That may be so and rather that will always be so in cases of "lessees" who are not owners but only lessees of a piece of land or an enterprise compulsorily
(1) PLD 1976 SC 531 acquired. In their case the compensation is to be awarded on principles contained in the aforesaid precedent of the Supreme Court. For further study see 'Compulsory Acquisition of Land' by Om Prakash Aggarwal 1950 (Third Edition) at page 289 heading "Valuation of Leaseholds" and also page 349 heading "Landlord and Tenant" etc. Which shows as to how in case of leasehold the compensation money is to be determined for lessees whose leases come to an end due to acquisition and how apportionment of different interests is to be made. Again the petitioner claimed to have raised certain quarters and a well in the kiln area. This factual aspect of the case is not denied, though it has been found by the Deputy Commissioner that under the terms of lease or sub-lease the petitioner was not entitled to make any pucca construction on the spot without previous permission of the lessor and it was for this reason that no compensation for the same was also granted. That may be so but these additions or constructions firstly go with the loss of business and secondly even if they are unauthorised vis-a-vis the lessor, the Capital Development Authority cannot get them free of cost and vis-a-vis the Capital Development Authority the said constructions/additions belong to the lessee and if they are to be taken over compensation for the same shall have to be paid to the lessee. Moreover in their very nature the aforesaid incidents in a way purported to improve the condition of the brick-kiln or, looked at from another angle, it was the improved condition (with improvements if any) which were to be taken into consideration and not the kiln minus those improvements. See Muhammad Yusuf and others v. Capital Development Authority and others (1). The order of the Deputy Commissioner, C. D. A., who failed to apply proper law on the subject, tantamounts to refusal or failure to do that which be was required to do or determine under the correct relevant law on the subject in hand.
4. It was argued by the learned counsel for the Capital Development Authority that the appeal of the petitioner before the Commission against the order dated 3-4-1969 was time-barred and, therefore, the petitioner is not entitled to the relief prayed for in this petition. The contention has no merit. There is nothing to indicate as to when the order passed by the Deputy Commissioner was communicated or conveyed to the petitioner. Even otherwise, since the order of the Deputy Commissioner maintained by the Additional Commissioner is really a nullity, it will net get any sanctity merely because the Commissioner refused to decide the matter on merits and the objection raised from an over-all point of view cannot be given effect to due to the peculiar facts and circumstances of this case especially when according to Constitution in the matter of acquisition of property it is constitutional duty of the acquiring authorities to pay compensation to the persons aggrieved. The present order simply purports to ask the authorities concerned to act in accordance with the Constitution and the law on the subject.
5. The result is that the present writ petition is accepted, the orders passed by the learned Deputy Commissioner dated 3-4-1969 and by the learned Additional Commissioner dated 9-10-1969 are hereby quashed and the case is remanded to the learned Deputy Commissioner for fresh decision in accordance with law, keeping is view the observations hereinbefore made and the precedents of the Supreme Court cited above. There shall be no order as to costs.
(1) PLD 1976 SC 752