' A directive bearing No, 112 dated 21-11-1968 acquiring the land in dispute situated in village Landa Mastal tehsil and district Rawalpindi, was issued by the Deputy Commissioner, Capital Development Authority, under section 25 of the Capital Development Authority Ordinance XXIII of 1960, (hereinafter called the Ordinance). The Deputy Commissioner on 26-12-1968 gave an award fixing the following rates of compensation to be given to the land owners concerned :- {{TABLE}} #TBS Rs, 1170 Rs, 510 Rs, 350 Rs, 265 Rs, 130 Rs, 70 #TBE #TBS Rate of compensation awarded by the Com- m issior er. #TBE 1.
2. 3.
S. No, Nature of land. Rate of compensation awarded by the D. C.
Chahi Rs, 619 Leparah Rs, 270 Mairah Rs, 191 Rakkar Rs, 79 Banjar Qadeem Rs, 40 Ghair Mumkin Rs, 20 {{TABLE}} ' The petitioners filed 77 appeals which were accepted by the learned Commissioner by means of a common order, dated 18-3-1972, whereby he enhanced the compensation at the rate mentioned in last column of the above table. The Commissioner further directed (like the Deputy Commissioner) that "to the total value of tthe land 25% will be added as provided by the Government to meet the difference of rates of 1954-58 and today and that additional 15% will also be added on de total value of the land as compulsory acquisition. The retitioners have come up in writ petition against the aforesaid proceedirgs and orders to this Court. While passing the above order, the learned Commissioner held that he was fixing the aforesaid rates on the basis of an award already announced ou 3-5.1963 in connection with the land acquired in the same village i,e, Landa Mastal though the date of the acquisition directive in the precedent case followed by him was not Indicated.
Re Relevant provisions of Ordinance XXIII of 1960
2. Before proceeding further it is necessary to examine as to what is the criteria and the law for awarding compensation to the land owners whose lands are acquired by the Capital Development Authority under the above-mentioned Ordinance (as amended). For this purpose reference may be made to section 28 of the Ordinance which is headed as "Enquiry and award by Deputy Commissioner" and states that "on the day so fixed, or on any other day to which the enquiry has been adjourned, the Deputy Commissioner shall proceed to enquire Into the objections, if any, which any person interested has stated pursuant to the notice given under section 27 and into the market value of the land and into the respective interests of the persons claiming the compensation, and shall make an award of (i) the true area of the land ; (ii) the compensation which in his opinion would be allowed for the land ; and (iii) the apportionment of such compensation among all the persons known or believed to be interested in the land of whom, or of whose claims, he has information, whether or not they have appeared before him". Section 29 is headed as "Compensation" and states that "where any land is acquired under this Ordinance there shall be paid compensation, the amount of which shall be determined by the Deputy Commissioner, who shall be guided by the provisions of sections 30 and 31". Section 30 deals with "matters to be considered in determining compensation" and states that "(1) in determining the amount of compensation to be awarded for land acquired under this Ordinance the Deputy Commissioner shall take into consideration, first, the market value of the land ; secondly, the damage, sustained by the person interested, by reason of dispossession of any standing crops or trees which may be on the land ; thirdly, the damage, if any, sustained by the person interested at the time of taking possession of the land by reason of severing such land from his other land ; fourthly, the damage, if any, sustained by the person interested at the time of taking possession of the land by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; and fifthly, if, in consequence of the acquisition of the land the person inferested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change. (2) In addition to the value of the land determined as aforesaid, the Deputy Commissioner shall in every case award a sum of fifteen per centum on such value in consideration of the compulsory nature of the acquisition". Section 31 deals with "Factors to be ignored in determining compensation" and states that "in determining compensation as aforesaid, the Deputy Commissioner shall not take into consideration first, the degree of urgency which has led to the acquisition ; secondly, any disinclination of the person interested to part with the land acquired, thirdly, any damage sustained by him which, if caused by a private person would not render such person liable to a suit ; fourthly, any increase likely to accrue to the value of the land acquired from the use to which such land will be put on acquisition ; and fifthly, any increase likely to accrue to the value of the other land of the person interested from the use to which the land acquired will be put". The word "market value" is defined in section 2(k) of the Ordinance and states that "in this Ordinance, unless there is anything repugnant in the subject or contest, market value means (i) in relation to land acquired before the first day of January 1968 the average market value thereof prevailing during the period commencing the first day of January 1954, and ending on the 31st day of December 1958 ; and (II) in relation to land acquired on or after the first day of January 1968, the aggregate of the average market value as aforesaid determined with reference to its classification recorded in the Register of Haqdaran Zemin as in force on that day and 25 % of such value". The word "thereof" in clause (i) and the whole of clause
(ii) of section 2(k) were added by means of the Capital Development Authority (Amendment)
Ordinance VII of 1968 published in the Gazette of Pakistan (Extraordinary) dated 25-10-1968, page 944, section 32 deals with "vesting of land in the Authority" and states that "immediately on the making of the award under section 28, the land shall vest in the Authority free from all encumbrances and thereupon the Deputy Commissioner may, after giving reasonable notice to the occupier, enter upon and take possession of the same".
Re : Technical definition of "market value" as contained in sections 2(k) (i) and 2(k)(ii)
3. To open his arguments Raja Said Akbar Khan, learned counsel for the petitioners, referred to Muhammad Yusuf and others v. Capital Development Authority, Islamabad and others (1). That was a case in which the land was acquired by the Capital Development Authority on 10-4-1964. A question arose as to while determining the "market value" of that land any improvement made by the land owners in the nature and condition of land on or by the acquisition day, was to be taken note of in view of the technical definition of the word "market-value" in its original form in section 2(k) of the Ordinance ; or was the compensation amount to be fixed barely with reference to the average market value during the period 1954-1958 without taking note of the improvements or improved conditions of land on the expropriation day. That was a case where the land earlier was not so, but by or on the expropriation day it had become a nehri land and the question cropped up in the context as to whether newt condition/classification of land could be taken note of or rot. The Supreme Court held that the improved conditons and improvements made in the land by or on the acquisition day were not excluded from consideration and could be taken due note of. The actual passage in the judgment of the Supreme Court in this respect is contained at page 757 and reads as follows : "By the introduction of section 2(k) in defining the term "market value" the Legislature has simply pegged up the average prices generally prevailing during 1954 to 1958 in respect of the different kinds of lands in general in the locality. There is nothing in the definition, either express or by necessary intendment, to warrant the conclusion that this embargo against the award on account of any rise in level of prices, was operative in any other direction as well and precluded the landowners from claiming compensation for the bona fide improvements effected in the quality of their acquired lands made during this period". This passage shows that the original definition of "market value" in section 2(k) which is now almost similar to new section 2(k) (0 though left a scope for taking note of improvements and improved conditions of land on the acquisition day, but at the same time contained an embargo and that was "against any rise in level of prices". However, learned counsel for the petitioners submitted that just as the original section 2(k) and as a matter of fact new section 2(k) (i) which dealt with average market value of the land do not on the authority of the aforesaid Supreme Court judgment exclude taking note of the improvements or improved conditions of land while determining overall compensation amount with respect to lands acquired prior to 1.1-1968, the same is the intention of clause (1i) of section 2(k) and it makes no change in that regard at all. He submitted that it could not be the intention of the Legislature to give benefit of the improvements and improved conditions of land to persons whose lands were acquired prior to 1-1-1968 but to deny the same to those whose lands were acquired on or after that date especially when there was no bar in any law for the time being in force to effect improvements in or in the conditions of land in general. He further submitted that the phrase "the aggregate of the market value as aforesaid. . . ." in clause (Ii) has reference to clause (I) of' section 2(k) where scope of taking note of improvements as held by the Supreme Court duly exists. He particularly laid emphasis on the words "as aforesaid" and submitted that average market
(1) PLD 1976 SC 752 ' value "as aforesaid" does not warrant leaving out the improvements and improved conditions of land and rather points to follow the same approach as in the referred-to clause, Taking the argument further he submitted that the later portion of clause (ii) of section 2(k) when it directs determination of the "average market value" as aforesaid with reference to its classification recorded in the Register of Haqdaran Zamin as in force on; that day, it simply means that instead of keeping the matter uncertain take note of and stick to the classification of land on the acquisition day. The words "that day", according to him, mean the acquisition day whether it is 1-1- 1968 or any day thereafter which in any case will also be an ascertained or ascertainable day. This interpretation he submitted will lead to giving fair compensation to landowners with reference to improvements and improved conditions of their land on the expropriation day and at the same time will avoid any discrimination in the matter of compensation on any other artificial basis. He amplified that if this construction is not accepted the results would be startling which he tried to demonstrate by saying that take, for example, teat a tract of land is acquired today in year 1977, its classification will be of 1-1-1968 and its price wilt be that of period 1954-1958 and that the same would have been the position had the land been acquired on 1-1-1968. This construction, he submitted, cannot be upheld from whatever angle the case, according to him, may he processed because it is not based on uniformity of any principle or any -plausible rationale and Lives no importance to the date of acquisition while determining 'market value'. Mr. S. M. Chaudhry, learned Advocate went so far as to argue that the concept of pegging the price and the classification will go against the fundamental right as contained in Article 24 of the Constitution which deals with "protection of property rights" and inter alia lays down in clause (2) that "no property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles can and the manner in which compensation is to be determined and given". He submitted that the Ordinance neither fixes the amount of compensation nor specifies the principles and the manner in which the compensation is to be determined and given.
According to the learned counsel pegging of price and pegging of classification does not mean specifying principles or the mannerism of determination of compensation, because, in the process of specification of principles and the mannerism of determination of compensation no pegging or ceiling of the price or classification can be done and the scope of the matter is left open and not closed. The arguments of the learned counsel deserved some probe and I might have examined them in detail, but I think that the observations of the Supreme Court in the precedent case as occurring at page 758 of the report do not leave any scope for me to express any independent views, inasmuch as, according to Article 189 of the Constitution "any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan". The actual relevant passage in the judgment of the Supreme Court is to the following effect: . "So that for the first time under this amendment in relation to land acquired on or after the first day of January 1968, a further clause was inserted in the definition and this had the effect of pegging the classification of the land as recorded in the Register of Haqdaran Zemin as in force on that day, as the criterion for the assessment or the compensation of the acquired land. But before it, as already discussed above, there was no such pegging of the classification of the lands. There was no restriction imposed by the Statute in that direction and the compensation for the acquired land had to be assessed on the basis of its subsisting classification on the date of the acquisition."
If this passage is read along with the passage earlier reproduced it will show that earlier there was pegging against the "rise in level of prices" but by the introduction of section 2(k) (ii) as interpreted by the Supreme Court there was pegging on the classification of land as well. If the classification of land stands pegged then it is no longer open to introduce the concept of improvements and improved conditions so as to change the classification through the aforesaid or any other similar device. Learned counsel for the petitioners submitted that the case before the Supreme Court was of acquisition which had taken place prior to 1-1-1968, namely, on 10-4-1964 whereas the present is a case of post 1-14968 acquisition, and as such, the observations of the Supreme Court holding pegging of classification under section 2(k) (ii) are obiter and should not be considered as declaratory of law or of a binding nature. I am afraid, the plea cannot be accepted. It was laid down in M. Ismail & Sons v. Trans-Oceanic Steamship Co. Ltd., and others (1) that even the obiter observations of the Supreme Court are equally binding and cannot be taken exception to. Once the concept of pegging of classification comes in then obviously pegging has to be on 1-1-1968 and not the acquisition day, because, the acquisition day in each case being different cannot be considered as a pegging day. I hold accordingly.. However, I want to make it clear that this discussion is confined to such" improvements etc. Which purport to change classification of the land for technical definition of "market value" and is not to affect individual merits of a particular piece of land while remaining within and without effecting or altering, its relevant classification for compiling "compensation amount" as distinct from technical market value as aforesaid. This aspect of the matter is discussed in some detail in para. 6 infra.
Re : Word "aggregate" in the definition of "market value" in section 2(k)
4. The next plea raised by some of the learned counsel for the petitioners in connected cases which were heard along with this case, was that the sentence "the aggregate of the average market value as aforesaid determined with reference to its classification recorded in the Register of Haqdaran Zamin as in force on that day and 25% of such value" refer back to clause (I) of section 2(k) where it is written that market value means in C relation to land acquired before the first day of January 1968, the average market value thereof prevailing during the period commencing the first day of January 1954 and ending on the 31st day of December 1958. So far this approach is correct. However, they further submitted that just as section 2(k) (t) referred to "URDU TEXT" (of period 1-1-1954 to 31-12.1958) similarly the word "aggregate" in section 2(k) (II) suggested that the Deputy Commissioner should go on determining "URDU TEXT" of each next five years period after 1958 I e. Period, for example, 1-1-1959 31-12-1963 and then 1-1-1964 to 31-12-1968 and so on, and then take the aggregate average value of each of such quinquennial period. The plea, to speak with respect, though very ingenious cannot be endorsed, because, the word
(I) PLD 1966 Dacca 296 "aggregate" has reference to aggregate (or to put it differently) the sum total of average price during 1954.1958 period plus 25% over and above that.
Re: Word "thereof" in section 2(k) (i)
5. At this place something may be said about the word "thereof" as added in section 2(k) (i) which did not exist earlier in the original bare section 2(k). While referring to the "market value" as contemplated in original section 2(k), the Supreme Court in the case above referred to at pages 756-757 observed that "in his endeavour in assessing the compensation, the Deputy Commissioner is required to ascertain the average market value prevailing during the period from 1-1-1954 to 31- 12-1958. The above definition of the term "market value" does not even specifically advert as much to the land under acquisition and in awarding the compensation the enquiry is made into the average market value generally prevailing for the lands in the locality during this period". It was probably to cover the aforesaid technical aspect that the word "thereof" was added in section 2(k)
(1) while recasting section 2(k) for the purpose of simply clarifying that the transactions, if any, of the particular tract of land under acquisition were also to be taken due note of along with sales of other similar lands in the neighbourhood, vicinity or locality as the case may be. In fact the process already involved this exercise though, as the Supreme Court pointed out, there was no specific mention of it in so many words. In other words, as already indicated, the word "thereof" was merely of a clarificatory nature, inasmuch as, it neither adds any such new factor which was not already there - nor it excludes any such factor which was already there and was covered within the scope of the definition of? The term "market value". To put it differently even though it highlighted consideration of the relevant transactions of the very land under acquisition, at the same time it did not eliminate the transactions of similar lands in the neighbourhood, vicinity or locality, as the case may be, during the relevant period. This is particularly so, because, possibility cannot be ruled out that every tract of land acquired or the land of every lando alter may not have any requisite direct sale-purchase quinquennial history during 1954-1958 period, with the result that, from that point of view, if sales in the neighbourhood, vicinity or locality, as the case may be, are not taken note of then the land under acquisition would have to be held to possess no "market value" within the strict letter of the definition of that term as contained in the enactment under examination and obviously will defeat the very aim and object of laying down the "market value" as the base factor forwarding compensation. In fact the "market value" compiled in the overall manner heretofore mentioned will legally still be the average market value "thereof" i,e, of the land under acquisition, though the process involves taking into account the relevant transactions of the land acquired and of the similar land in the neighbourhood, vicinity or locality, as the case may be.
Re : 'Compensation amount" as distinct from technical definition of "market value" and the relevancy of potential value of land and its other merits and demerits on acquisition day.
6. The next point argued by the learned counsel for the petitioners was that there was a difference between what is called technical definition of the word "market-value" as contained in section 2(k)
(1) and 2(k) (ii) of the Ordinance on the one hand and "the compensation amount" to be paid to the land owners on the other hand. Compensation amount, he submitted, was total and overall amount whereas market value was simply one of the items to be taken note of in fixing or compiling the compensation amount. The market values in other words was just a base and starts and rot the end of the process of compiling the compensation value. The argument seems to be correct. The wordings of sections 28, 30 and 31 of the Ordinance fully bear it out but if support is needed reference may again be made to the Supreme Court precedent where at page 757 it is written that "after having ascertained the average market value, the Deputy Commissioner is then required to exercise his judicial mind and form his own judgment in awarding compensation for the acquired land in question before him. Section 28 does not lay down that having ascertained the average market value and collected the data as the basis, the Deputy Commissioner is left with no discretion. Indeed his real difficulty lies in the task in forming his opinion, in assessing the compensation for the acquired land in question with tine regard to its relative merits and demerits and the data of the average price complied by him". Proceeding further learned counsel for the petitioners then referred to clause "fourthly" of section 31 of the Ordinance which says that while determining the compensation amount the Deputy Commissioner shall not take into consideration "any increase likely to accrue to the value of the land acquired from the use to which such land will be put on acquisition". He submitted that no doubt post acquisition use due to or on account of acquisition is not to be taken tote of but this does not mean that potential value of the land even on the acquisition day is also to be ignored and this potential value, according to him, despite pegging of classification of land on 1-1-196e can safely be attended to because pegging is only for compiling average marke value of 1954.1958 period so as to be simply kept in view and is not directed towards other directions or for other purposes. In my opinion, the plea raised is quite sound. Here attention is invited to section 23 of the Land Acquisition Act (I of 1894) where it is written that while determining the amount of compensation the Court shall take into consideration first the market value of the land at the date of the publication of the notification under section 4, subsection (1). There is then a further provision in clause fifthly of section 24 of that Act which says that the Court shall not take into consideration any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired. Interpreting that clause the Privy Council in V. Narayana v. Revenue Divisional Officer, Vizagapatam (1) held it means no more than this that in valuing the land acquired, on the date of the notification under section 4(1) of the Act it must be valued as it then stood and not as it would stand when the land had been acquired and used for the purpose for which it was acquired. However, it may be mentioned that generally speaking there are two types of buyers, namely, (1) those who are described as "potentiality buyers" as opposed to (2) "poramboke buyers" or ordinary buyers who would not pay on the prospect of exploiting the potentiality. Where there are other purchasers in the market who would pay for the value of the potentiality the case is simple but position is not altered even if the acquiring body was the only possible put chaser in the market who could utilise the potentiality.
The question would be what the body would have paid as a willing purchaser not under compulsory acquisition. The actual passage in the Privy Council
(1) AIR 1939 P C 98 judgment occurs at page 106, column 2, and reads "for these reasons, their Lordships have come to the conclusion that, even where the only possible purchaser of the land's potentiality is the authority that has obtained the compulsory powers, the arbitrator in awarding compensation must ascertain to the best of his ability the price that would be paid by a willing purchaser to a willing vendor of the land with its potentiatity in the same way that he would ascertain it in a case where there are several possible purchasers and that he is no more confined to awarding the land's "poramboke" value in the former case than he is in the latter". (strictly speaking poramboke laud is that land which does not yield any revenue to the Government and includes unassessed waste land). Coming to the present case, I may respectfully similarly observe that classification of a tract of land even fixed with reference to its description in the Register of Haqdaran Zamin as in force on 1-1-1968 simply for technical definition of "market value" will not detract anything from the potential value of that land for determining "compensation amount" because for example a land being agricultural land in urban municipal limits may be described nehri but it does not mean that its value for compensation purposes will only be as an agricultural land without its probable pc tentialities. Again the aforesaid pegging of classification which is meant only for technical definition of the "market value" does not warrant that individual and exceptional merits of any particular piece of land within the same relevant classification can be ignored for compiling "compensation amount' when by so doing no change in that classification in any manner takes place.
' At this stage, learned counsel for the Capital Development Authority submitted that this construction of law will do violence to the language of section 2(k) (ii) of the Ordinance and the concept of 'market value' as technically defined therein and will make the description and classification different from 1-1-1968 as the basis for determining the said "market value". The contention has no merit. Firstly because what I have said above pertains to "compensation amount" and not 'market value'. Secondly as observed by the Supreme Court the pegging for example in section 2(k) (as it originally stood) was aimed at stopping "rise in level of prices" and was "not operative in any other direction as well". While using the phrase "not operative in any other direction as well" the Supreme Court did not tabulate all the other passible directions which were thus excluded from pegging against "rise in price level". However, the two aspects which were separately excluded from the aforesaid pegging as noted by the Supreme Court were (a) the improvements in the classification and condition of land and (b) the principle of awarding compensation amount with reference to the value of the land on the acquisition day. By adding clause (ii) to section 2(k) such improvements which may change the classification of land may now be hit but despite the pegged classification the potential value of land was neither earlier excluded and nor is it even now excluded from compilation of actual compensation amount. As regards the other aspect, namely, to fix compensation amount with respect to acquisition day so that it may reasonably be termed, considered or felt as real compensation, there again the amended clause 2(k) (ii) does not operate in that direction and K nowhere fixes any other date as the date for determining compensation amount though no doubt it does fix and retain the pegging against rise in level of prices both due to the pegging period and classification-wise, but there is no indication to alter the acquisition day as the date of compensation, which apart from being otherwise a general law is still clearly ductile from the oven rail provisions of the Ordinance under discussion as well. Actually the Supreme Court also in the precedent case endorsed the same views, inasmuch as, at page 759 they observed that "as already discussed above under section 28(11) read with section 2(k) of the Ordinance, the Deputy Commissioner is required to make an award of the "compensation" which should be allowed to the landowner for his land under acquisition. In Malik Khizar Hayat Tiwana v. Punjab Province (1) late M. R. Kayani, J. (as he then was) observed that compensation means "counter-balancing", "renderings of equivalent", "requital". And that it was not possible to compensate a man without requiring him for his land, without the rendering to him of an equivalent in money. In Atmaram Bhagwant Chadgap v. Collector of Nagpur
(2) their Lordships of the Privy Council observed that the owner of the land is entitled to the value of the property in "its actual condition at the time of expropriation" with all its existing advantages.
This indeed is the general law". Earlier at page 756 they observed that "in the instant case the material date for the assessm ent of compensation for these lands was 10-4-1964, when the Authority had issued the necessary directions to the Deputy Commissioner under section 25 to undertake this acquisition of the lands in question". As a matter of fact the whole of the judgment of the Supreme Court lays emphasis at various places that the material date for compensation in the Ordinance is only acquisition date and no other date. The matter can, however, be approached from another point of view and also from another provision of the Ordinance as hereinafter explained. In Manmatha Nath Mitter v. Secretary of State (3), while dealing with a clause in section 25 of the Land Acquisition Act X of 1870 which corresponds to section 24 (fifthly) of the Land Acquisition Act I of 1894 and fourthly of section 31 of the present Ordinance, the Privy Council observed that "there is an express provision in section 25 (now section 24) under Act X of 1870 (old Land Acquisition Act) that the assessor shall not take into consideration any increase in the value of the land acquired likely to accrue from the use to which it will be put. That points-(if I can very respectfully add by process of elimination or deduction)-to the time when the land is acquired as the time for ascertaining its value. Independently of that provision it would lead to very strange and capricious results if changes in the conditions of the land between the time when it was taken and the actual conclusion of the award were to increase or lessen its value. The time of awarding compensation must be construed as meaning the time of compensation, the time at which the right to compensation attaches". Concluding this aspect of the discussion, therefore, I would hold that there is nothing in the technical definition cf "market value" in section 2(k) (1) and 2(k) (ii) to hold that that definition operates in altering the date of acquisition from being the date of assessing the compensation. If that is so then potential value of the land on the acquisition day cannot be ignored from consideration when the Deputy Commissioner is to make award of "the compensation which in his opinion should be allowed for the land", which suggests that he is not to ignore the merits and demerits of the particular land involved before him and is not to confine himself merely to the technical aggregate market value which, as already mentioned, is simply one of the material (and not the sole material) to be attended to.
(1) PLD 1955 Lab. 88 (2) AIR 1929 P C 92
(3) I L R 25 Cal. 194 Re a Summing up of the relevent law re a "compensation amount"
7. The principles deducible from the above law for fixing the compensation value so far as relevant for the present case may now be summed up as follows :-
(1) The Deputy Commissioner is first to determine and find out as to what is the classification of land acquired as recorded in the register of Haqdaran Zamin as in force on 1-1-1968 ;
(11) he is then to determine and find out as to what was the average market value thereof during the period 1-1-1954 to 31-12-1958. While so doing, it may be noticed, that the classification recorded in the Register of Haqdaran Zamin which was in force on 1-1-1968 has to be given a retrospective effect and it is to be considered as if the classification of 1-1-1968 was in force during the period 1-1- 1954 to 31-12-1958 ;
(iii) to the average value so determined he is then to add 25% thereof
(iv) the aggregate so obtained by adding (ii) and (iii) will thus come out and constitute to be the "market value" of the land within the meaning of section 2(k) (ii) of the Ordinance, which the Deputy Commissioner is inter alla required to keep under consideration while awarding and assessing compensation under section 31 ;
(v) the material date for compensation however is the date of acquisition and not any other date ;
(vi) that while compiling the compensation amount, the potential value of the land as on the acquisition day is not to be lost sight of and is to be duly taken into consideration for whatever worth it may be ; (see the deductions made while interpreting section 31 fourthly and-other analogous provisions) ;
(vii) he is also not to exclude from consideration the individual merits of a particular land acquired within the same classification to which that land belongs or in other words without affecting or changing the general classification of that land ;
(viii) as per section 3 of the Capital Development Authority (Amendment) Ordinance VII of 1968 any award of compensation made before the commencement of this Ordinance in respect of any land acquired on or after the first day of January, 1968, shall be modified so as to raise the amount of compensation specified therein to the amount which would have been awarded had the award been made after the commencement of this Ordinance.
Re : merits and facts of the case in the light of the relevant law.
8. Stage is now ripe to attend to the relevant facts and circumstances of the present case. The land under acquisition here is situated in village Landa Mastal within the municipal limits of Rawalpindi city. It is adjacent to the Holy Family Hospital, Rawalpindi. It is surrounded by villages Dawar, Surain and Than. The learned Deputy Commissioner in certain respects followed average market value of 1954.1958 and in certain cases where the said average value was higher and in favour of the land owners, be refused to adopt the same without assigning any reason and rather treated the land as of a classification different from the one recorded in the relevant revenue record. Similarly he refused to agree to the applicability of potential value concept. He in some cases followed what he called produce index formula applicability whereof just in abstract was highly doubtful on principle.
The following chart will explain the position {{TABLE}} #TBS Price actually fixed by him. Same i,e, Rs, 270 based on average market value principle solely, Rs, 191 per kanal on produce index value formula. Rs, 30 per kanal on produce index formula. Land under abadi to be treated as Leparah for no reasons given. Rs, 40 per kanal on produce index formula. Rs, 79 per kanal on produce index formula. Rs, 619 per kanal on produce index formula. To be classified according to adjoining classification of land which was not particularly specified. #TBE S. Class of land as Average price as No, per revenue per years 1954- record. 1958 Leparah Rs, 270 per kanal.
Mairah Rs, 50 per keno!.
Gher Mumkin Rs, 215 per kanal.
Gher Mumkin Rs, 2000 per Abadi kanal.
Bat jar Qadeem Not indicated in Award.
Rakkar -do- Chahi -do- Land under hutmuts -do- {{TABLE}} A perusal of this chart will show that the learned Deputy Commissioner made inconsistent approaches and acted on extraneous and arbitrary considerations and the learned Commissioner was thus perfectly justified in ignoring his award. As the award of the Deputy Commissioner is no longer in the field, I need not deal with its infirmities in detail. So far as the learned Commissioner is concerned, he summarily followed a previous a ward dated 3-5-1963 which as regards the concerned acquisition date was a decade earlier acquisition about some land in the same village.
However, the case of the Capital Development Authority itself with regard to the aforesaid earlier award before the learned Commissioner was that the same should not be followed because the material about that award was not on the record. The Commissioner did not repel this factual plea.
The Commissioner also does not appear to have adverted to the use of land on the acquisition day ; nor to its potential value due to nearness to Rawalpindi town and nor to the market value classification-wise. Before following the far earlier award he did not compare the conditions of the present land with the previously acquired land and nor their respective dates of acquisition. His sole reason for following the previous award dated 3-5-1963 was that "the purchasing power of money has sufficiently reduced". This is hardly an adjudication on the subject-matter of compensation under consideration and if at all it was relevant it should have led to increase of price rather than making it stationery with the value prevalent during far earlier period.
In my opinion, the petitioners as laid down in Atmaram Bhagwant Chadgay v. Collector of Nagpur were justified in claiming compensation on the basis of the qualities of their own land and not on an award of certain other land acquired far earlier especially when the conditions of that land were not fully on record and the learned Deputy Commissioner had refused even to make a spot inspection to just note down the nature and the particulars of the present land despite a formal request of the landowners in that respect. In the aforesaid case even though the land in previous award was acquired at the same time still the Privy Council did not approve of adopting the same qua land of other land owners when conditions of earlier plots were not before the Court. The present case is all the more strong, because, here the earlier award was with regard to land which was not acquired at the same time as the present land but rather much prior thereto and was based on old definition of market value as contained in original section in the form of section 2(k) and not 2(k) (1) and 2(k) (ii) which was to be applied here. There is nothing to show whether the old award was scrutinised with reference to the law laid down in Muhammad Yusuf and others v. C. D.
A. Islamabad and others or in the light of section 3 of the amending Ordinance VII of 1968 when applied to the present land. Again the values as fixed in the instant case did not advert to the actual use of the land on the acquisition day nor to its potential value due to its location in general or as pleaded due to its already being within the municipal limits and near the Holy Family Hospital a well-known thickly populated urban area of Rawalpindi town. Similarly there is no dscussion and consideration of the award with regard to similar lands in the same neighbourhood, vicinity and locality Le. Adjoining villages which were pointedly relied upon by the petitioners. The impugned orders suffer from omission to attend to the relevant evidence. As against all this the stand of the learned counsel for the Capital Development Authority was that the award giving authorities were bound to consider only "the average market value" and nothing else. This is not a correct approach and if the authorities concerned have decided this case under that notion without having regard to the principles formulated in para. 7 above, their orders obviously will have to be struck down on this short ground. It appears that the authorities concerned have not done, within the phraseology of Article 199 of the Constitution, what they were required by law to do and similarly have rather done that which they were not required by law to do.
10. The upshot of the above discussion is that the orders impugned in this case, due to the various acts of omission and commission on the part of the authorities concerned and due to not applying the correct law or correct principles of law on the subject, shall have to be declared as to be without lawful authority and of no legal consequence against the petitioners in so far as they refused to enhance or consider their claims for more price than the one awarded by the learned Commissioner, and are liable to be set aside which I hereby do. The result is that the case is remanded to the learned Deputy Commissioner Capital Development Authority for fresh decision and award, keeping in view the law and principles above-mentioned and the observations made in connection therewith. The case should be taken up for consideration of the subject of enhancing the amount of compensation and not reducing it from the rates fixed by the Commissioner, inasmuch R as, the learned counsel for the Capital Development Authority has not taken exception to these rates and nor the Capital Development Authority filed any counter writ or cross-objections and in a way accepted and supported the same. Obviously in these circumstances the scope of remand will have to be limited to consider increase in the compensation amount and not curtailing it. The petitioners will get their costs.