1. This appeal under section 54 of Land Acquisition Act, 1894 is directed against the order dated 30- 6-1996 by the District Judge, Jacobabad in Reference No,1 of 1995 made at the instance of appellants. In view of order proposed to be made presently, the relevant facts and circumstances, succinctly stated are as follows:-- On 6-2-1993 Cantonment Executive Officer, Pano Aqil Cantonment informed Deputy Commissioner, Jacobabad that the P.A.F. Authorities have decided to acquire a piece of land comprising Survey Nos.63, 64 and 65 in Deh Rindwahi, Taluka and District Jacobabad for construction of grid station. The Cantonment Executive Officer, inter alia, sought information with regard to the acquisition cost of the land based on the sale transaction effected in the vicinity during the preceding one year. On 10-2-1993 Assistant Commissioner, Jacobabad called upon Mukhtiarkar, Jacobabad to furnish information so that notification under section 4 of the Land Acquisition Act may be prepared and submitted to the Deputy Commissioner, Jacobabad. After gathering information the Assistant Commissioner and Land Acquisition Officer, Jacobabad intimated that the estimated cost of acquisition was Rs,17,92,735. The said amount was remitted by the Military Estates Officer, Hyderabad Circle, Hyderabad and was credited in the National Bank of Pakistan, Tower Road Branch, Jacobabad on 6-6-1994. This amount was inclusive of 15% compulsory acquisition charges of the land. Thereafter, Notification under section 4 of the Land Acquisition Act was issued and the Assistant Commissioner, Jacobabad started necessary enquiry. The Tapedar and Khatedars were called. Thereafter, Notification under section 6 of the Land Acquisition Act was issued with the approval of Commissioner, Larkana Division. A Notification under section 17(4) was also issued and thereafter necessary requirements of sections 8, 9 and 10 of the Land Acquisition Act were complied with. The physical possession of the land measuring 18-34 acres was handed over to the Defence Department on 2-8-1994. While estimating the cost of land on the basis of information received from the Revenue Authorities the prevailing market price was taken at Rs,85,000 per acre.
2. Objections were invited to the said estimate by the Land Acquisition Collector and the. Military Estates Officer Hyderabad Circle, Hyderabad submitted objections to the effect that no increase should be made to the estimated cost of Rs,85,000 per acre. The landowner/respondent Mst. Sirtaj Bibi stated in her objections that the land is situated in the Municipal limits and is adjacent to the National Highway. It is situated. On the side where Jacobabad town was expending and the land was adjacent to Sabzi Mandi/Fruit Market constructed by the Market Committee, Jacobabad. It was further stated that surrounding lands were disposed of for residential and commercial purposes, and therefore, the potential value of the land has increased several times, as such the value of the land cannot be assessed in terms of acres and the value of the land should be assessed in accordance with its potential value if put to different use. It was asserted that in the above situation the proper value of the land at the time of its acquisition was not less than Rs,100 per sq. Foot and therefore compensation was claimed at the said rate plus 15% compulsory acquisition charges. The Land Acquisition Collector/Assistant Commissioner on receiving the objections again sought information from Mukhtiarkar and City Survey Officer, Jacobabad, Sub- Registrar, Jacobabad and Administrator Municipal Committee, Jacobabad on the point whether the land in question was agricultural or commercial, whether it falls within the municipal limits of the city and consequently is to be categorized as urban and what was the market .Value of the land on 18-4-1993 i,e, the date of publication of Notification under section 4 of the Land Acquisition Act. Sub-Registrar, Jacobabad informed that the land was situated near Sabzi Mandi, Truck Ada, College and District Jail. It was near National Highway and present value of the land was reported to be between Rs,90 to 95 per sq. Foot. Mukhtiarkar, Jacobabad reported that the land was commercial and not agricultural, it fell within the municipal limits and was an urban property and its market value on 18-4-1993 was reported to be between Rs,95 and 100 per sq. Foot. The report of the Administrator, Municipal Committee, Jacobabad was to the same effect. On 7th of March, 1995, Officer Commanding. P.A.F. Base, Shahbaz informed Deputy Commissioner, Jacobabad that due to change in operation plan P.A.F. Does not require this land. It was requested that the acquisition proceedings may not be pursued further. However, the request was not accepted for the reason that under section 48 of the Land Acquisition Act, 1894 acquiring agency has no right to withdraw from land acquisition proceedings after taking over possession. The P.A.F.
3. Authorities were informed accordingly. Prior to that Military Estates Officer, Hyderabad, had taken exception to the collection of fresh information on the point of market value of the land and vide letter dated 1-3-1995 stated that if more than 10% increase was likely to be made over and above the estimated cost of Rs,85,000 per acre he may be intimated before announcement of award so that acquisition proposal is referred to the Federal Government in the Ministry of Defence to abandon or change the site in question, because of unrealistic, unjustified and one-sided, proportionate increase. Objections were also filed by Military Estate Officer to the demand of Rs,100 per sq. Foot by the owner of the land. It was contended that Sabzi Mandi has been acquired by the Market Committee, Jacobabad during the same year at the rate of Rs,75,000 per acre and, therefore, the price demanded by the owner of land is unrealistic and unreasonable. A complaint was also made to Senior Member, Board of Revenue, Sindh by Cantonment, Executive Officer Pano Akil Cantonment vide letter dated 6-3-1995 to the effect that the Assistant Commissioner/Land Acquisition Collector under the influence of landowner has started collecting information afresh and during personal visit to the Assistant Commissioner/L.A.C. It appeared that he was inclined to pass award whereby the Ministry of Defence shall sustain approximate loss of rupees eight crores in one transaction alone and with this precedent on record, the overall loss to the Ministry of Defence would be Rs,44 crores, when the rest of 80 acres are acquired in the same vicinity. It was pointed out that a similar situation arose in District Thatta when the land was acquired for P.A.F.
4. Base Bhulari which put the Government of Sindh in very awkward and embarrassing position.
5. Ultimately the Assistant Commissioner and L.A.C., Jacobabad gave the award under section 11 of the Land Acquisition Act and fixed the price of the land at Rs,85 per square foot and allowed compulsory acquisition charges at Rs,15% of total compensation. The amount of compensation inclusive of Rs,15% compulsory acquisition charges worked out to Rs,8,02,63,111. This award was announced on 7-3-1995 and thereafter, the landowner received under protest the amount of Rs,17,92,735 which was deposited by the acquiring agency, on 8-3-1995. Thereafter, at the instance of Provincial Government on behalf of Federal Government a reference was made to the Court under section 18 of the Land Acquisition Act, 1894.
6. ' During the course of proceeding in reference one Amir BuxTapedar, was examined on behalf of the appellant who produced relevant Revenue Record to show that the land in question was purchased by Mst. Sirtaj Bibi on 14-3-1989 for total consideration of Rs,1,58,000 and the land was "Banjar Qadeem". He further stated that Sabzi Mandi started work from 8th May, 1996. On behalf of respondent/landowner one Bahadur Ali Clerk in Tax Branch Municipal Committee, Jacobabad was examined. He produced record pertaining to the auction of plots on Shikarpur-Jacobabad Road at New Truck Stand, which was held on 15-4-1996. The plots measuring 448 sq. Feet were sold in auction for the pirce ranging between Rs,69,000 to 81,000. The respondent No,1 or her attorney did not enter the witness-box. The learned District Judge, Jacobabad confirmed the award, dismissed the reference and hence this appeal. I have heard Mr. S. Muhammad Zaki, learned Dy. A.-G. For the appellants and Mr. Mushtaq A.
7. Memon, learned counsel for the respondent No, 1 at length. During the course of arguments Mr. Mushtaque Memon, learned counsel for the respondent No,1 contended that the price fixed by the Land Acquisition Officer in the award is on lower side as compared to market value. He has further contended that the future potential of the land is also required to be considered and according to him by now the value of the land has increased manifold. According to the learned counsel if the land is returned to the respondent No,1, she would be able to sell the same in small pieces and would earn many times more than the compensation awarded by the Land Acquisition Officer and upheld by the Court. S. M. Zaki learned Dy. A.-G. Submitted that the land is no more required by the Government of Pakistan, Ministry of Defence and the Government of Pakistan is prepared to withdraw from the acquisition and has no objection if the land is restored to the respondent No, 1 . The learned Dy. A.- G. Further stated that the land in question is "Banjar Qadeem" and is of no use to the Government of Pakistan, Ministry of Defence, therefore, it would be appropriate if with the consent of the parties the acquisition proceedings are de-notified under the directive of this Court so that the Government of Pakistan is saved of colossal loss and the respondent No,1 is able to reap full fruit of his property by selling the same in a smaller pieces as stated by the learned counsel for the respondent No, 1 . However, Mr. Mushtaq Memon submitted that in case the acquisition proceedings are undone the respondent No,1 should be awarded appropriate rent/compensation for the land which remained in possession of appellant No,2 since August, 1994. Mr. Mushtaque Memon submitted that the respondent No,1 was not allowed to take benefit of land for about seven years and, therefore, is entitled for the rent thereof. He initially demanded rent at the rate of Rs,5 per square foot per month. On calculation of rent at this rate the total claim worked out to be Rs,34,20,00,000. Realizing that the demand of rent at the rate of Rs,5 per square foot per month was unrealistic particularly looking to the fact that entire compensation which is objected to in this appeal is worked at Rs,8,20,63,111 only, Mr. Mushtaq Memon, learned counsel for the respondent No,1 stated that in or case pertaining to the land near Larkana, rent was allowed to him by this Court at the rate of Rs,0.05 per square foot per month in sixties. The copy of judgment was not available with Mr. Memon and the particulars of the said land were also not available. The rent calculated at the rate of Rs,0.05 per square foot per month worked out at Rs,3,42,00,000. Mr. S.M.Zaki, learned D.A.-G.
8. Submitted that even this amount was unreasonable. He submitted that admittedly the land in question is Banjar Qadeem and neither the landowner can derive any benefit from the use of land itself nor the Federal Government has derived any benefit out of the land as it is not fit for agricultural purpose and the Federal Government has abandoned the project of construction of Grid Station over the land in question. He contended that this sole project which could be derived from the land in question is the alleged increase in the value of land itself, having attained the status of urban property of commercial use. Thus, the benefit which can be derived from the land is attached to the land itself and if the land is restored to the respondent No,1/landowner, it shall be restored to her with all the benefits i,e, increased value of the land. The learned D.A.-G.Has submitted that during the entire period consumed in the acquisition proceedings, the landowner has not suffered any loss and no damage has been caused to her. On the contrary, with the restoration of land to her as demanded by her counsel, she is likely to earn enormous profit/benefit by sale of the land in small pieces at the increased commercial value alleged by the learned counsel for the respondent No,1. The learned D.A.-G.Has clarified that it should not be taken as concession on his part regarding the commercial nature of the land or increased value thereof justifying the compensation awarded by the Land Acquisition Collector and his contention is based on the assertions made by the learned counsel for the respondent No, 1 . He has further stated that although he would not concede for payment of any rent to the landowner/respondent No,1 in the case of restoration of land to her but if his plea is not accepted that with the restoration of the land, the respondent No,1 on her own assertions shall be greatly benefited and, therefore, no compensation/rent be paid to her, then at the most, the amount of Rs,17,92,735 already received by the respondent No,1 in the month of March, 1995 under protest which was inclusive of 15% compulsory acquisition charges may be allowed to be retained by the respondent No,1. The learned D.A.-G.Has further clarified that the said amount may not be allowed to be retained by the respondent No,1 on the basis of any concession on his part but in the discretion of this Court. After having argued on the above aspects, the learned Advocates stated that there would be another difficulty in deciding the appeal on the above lines, because there is no provision for withdrawal of Government from acquisition of any land of which possession has been taken. In this behalf they have referred to the provisions contained in section 48(') of the Land Acquisition Act which reads as follows: "48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.--(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any' land of which possession has not been taken." The learned Advocates were pointed out that the provisions contained in the above section empowers the Government to withdraw from the acquisition of any land of which possession has been taken, meaning thereby that the Government can exercise such discretion unilaterally and without consent of the landowner or the approval of any authority under the Land Acquisition Act, 1894. For exercise of such discretion on the part of Government no intervention of any authority under the Land Acquisition Act or any Court is required. The learned Advocates were further required to address the arguments if the provision contained in section 48(1) of the Land Acquisition Act shall operate as a prohibition on exercise of inherent jurisdiction by this Court to make an appropriate order which serves the ends of justice. The learned Advocates for the parties did not provide any assistance to this Court on this point, except the statement that in the Land Acquisition Act or any other law there is no prohibition preventing this Court from making an appropriate order to achieve the ends of justice. As already observed the learned Advocates have addressed the arguments on the point of market value of the land in question, however, in view of the order proposed to be made presently I would not like to give any finding on the point of market value of the land. First of all I would like to examine whether this Court is empowered to make an order directing the authorities under Land Acquisition Act to de-notify the acquisition of the land and all other Notifications in this behalf, restore the title and possession of the land to the land owner/respondent No,1 and to restore the position as prevailing at the time of initiation of the acquisition proceedings. The ancillary question for consideration would be whether in doing so a reasonable rent/compensation can be awarded to the landowner. Before giving finding on the above question, I would like to reproduce the relevant provisions of law:-- "Land Acquisition Act, 1894 section 54. Appeals in proceedings before Court.--Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid, an appeal shall lie to the (Supreme Court) subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof. Section 53. Code of Civil Procedure to apply to proceedings before Court.--Save insofar as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, shall apply to all proceedings before the Court under this Act. Civil Procedure Code, section 151.Saving of inherent powers of Court.--Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. Order 41, Rule 33.Power of Court of Appeal.---The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass, or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of .The respondents or parties, although such respondents or parties may not have filed any appeal or objection: Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." A perusal of section 54 of the Land Acquisition Act under which this appeal has been preferred clearly shows that the appeal is preferred subject to the provisions of Civil Procedure Code and the provisions applicable to the appeal from the original decree are applicable. This section makes the provisions relating to the filing of appeals and disposal thereof as are applicable to the appeal from the original decree. Section 53 of the Land Acquisition Act makes all the provisions of the Civil Procedure Code applicable to all the proceedings before the Court under the Land Acquisition Act with the sole condition that if. There is any inconsistency or conflict between the provisions contained in Civil Procedure Code and the Land Acquisition Act, the provisions contained the latter shall prevail. The expression Court is defined in section 3 of the Land Acquisition Act to mean a principal Civil Court of original jurisdiction including the Court of the any Additional District Judge and any Judge whom the Provincial Government may appoint by name or by virtue of his office to perform all or any of the functions of the Court under the Land Acquisition Act. By now, it is an established proposition of law that appeal is the continuation of the original proceedings and the Appellate Court can exercise all the powers and jurisdiction conferred on the Court of original jurisdiction and can make all the orders which the original Court could have made or was empowered to make. This principle is so well-entrenched in the administration of justice that I need not to dilate in detail on this point.
9. A perusal of Order 41, Rule 33, C.P.C. Further shows that very wide discretion is given to the Appellate Court in terms of this rule, in order to prevent the ends of justice from being defeated. The Appellate Court has been fully empowered to do complete justice and can pass any decree or order. It empowers the Appellate Court to ignore such technicalities which tend to defeat the ends of justice and to remove all hurdles. This rule empowers the Appellate Court to interfere where it becomes necessary to adjust or re-adjust the right and interest of the parties or for settlement of mutual right and obligations of the parties in accordance with the justice, equity and good conscience. So far section 151, C.P.C.. Is concerned, it recognizes the inherent power of the Court to make such orders as may be necessary for the ends of justice. No new power is conferred on the Court under section 151, C.P.C. But it merely preserves the inherent power of the Court and removes every doubt about the inherent jurisdiction of the Court by declaring that nothing in the Civil Procedure Code shall be deemed to limit or otherwise affect the inherent powers of the Court. The inherent power of the Court has been reserved to meet a situation where no express provision of law is applicable and such power can be exercised if there is no specific prohibition for a particular Act. It is further to be kept in view that the inherent power cannot be exercised to further injustice as it is specifically stated in section 151, that the inherent power of the Court is to be exercised for making such orders as may be necessary for the ends of justice. This inherent power is necessary because the human conduct and the varying situations in human society are so numerous, unpredictable and sometimes so complicated that any system of law and the general rules contained therein cannot regulate for all the times to come, each and every situation arising in peculiar circumstances and thus, it is not possible to make express provisions so for all the situations that may possibly.Happen.
10. It is the duty of the Judges to apply law, not only to what appears to be regulated by their express proposition, but to all the cases to which a just application of them may be made and which appeared to be comprehended either within the express sense of law or within the consequences of achieving the ends of justice. The principle of law has been laid down in very lucid and precise terms by Mahmood, J., "Courts are not to act upon the principle that every procedure is to be taken to be prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle prohibition cannot be presumed." (5-A-163 F-B, cited in Aamer Raza's Code of Civil Procedure VIIIth Edition 2000, 350). Now I would like to cite a few judgments in support of my above view. His Lordship A.R. Cornelius, C.J. Speaking for the Supreme Court of Pakistan in the case of S.M. Yousaf & Brothers v. Mehdi Muhammad Yoopa PLD 1965 SC 15, held as follows:-- "The terms of rule 33, Order XLI, C.P.C. Are of the widest amplitude to enable an Appellate Court to pass decrees according to the justice of the case. The language referred is affirmative and rule is further strengthened by no obstante clause, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the Appellate Court considers should be allowed within the framework of the suit.
11. "General propositions extracted from the precedent cases are to the effect that the power given by the rule is widely expressed and must be applied with discretion, where interference is required 'to adjust the right of the parties in accordance with the justice, equity and good conscience'. Where the failure to exercise the power 'would lead to impossible, contradictory and unworkable orders', undoubtedly are considerations which would the exercise of the discretion conferred by the rule, but it is right to say that if these propositions are to be understood as limiting the exercise of the power within the circumstances specified, they would be in excess of the powers given to the Courts, to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, affecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation." A Single Judge of this Court (Mr. Justice Naeeumuddin, as his lordship then was) has held in the case of Habib Bank Limited v. Ghazanfarullah Khan, 1980 CLC 694: "Even, otherwise, a Court is entitled to proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same". In support of view reliance was placed on the rule laid down by their Lordships of the Supreme Court in H.M..Saya& Company, Karachi v. Wazeer Ali Industry Limited PLD 1969 SC 65. A learned Single Judge of the Lahore High Court (Muhammad Afzal Loan, J., as his Lordship then was) held in the case of Pakistan v. Agro Marketing Corporation, PLJ 1984 Lahore 141 that, "every Court in the absence of prohibition or procedure in the Code of Civil Procedure is to be deemed to be possessed of such inherent powers embodied in its constitution as may be necessary to do complete justice between the parties according to situation which may arise in the course of the administration of justice. The Civil Procedure Code is not designed to embody express provision to deal with every conclusive issue that may arise for the disposal of the case". It was further held that, "the Code is not exhaustive and the inherent powers of the Court are fairly wide to serve the ends of justice". In another Single Bench judgment of this Court by Saeed-u-Zaman Siddiqui, J. (as his Lordship then was) in the case of Amjad Rasheed Khan v. Zubeda Rasheed Khan, 1984 CLC 2851 has held, "this does not mean that the Court is powerless to do full justice between the parties just because the Code of Civil Procedure does not contain specific provisions to deal with a particular situation.
12. It is an accepted position that in the absence of a specific provision in the Code of Civil Procedure providing for the procedure to deal with a particular situation the Court in its exercise of inherent power can pass such orders as may be necessary to do justice between the parties in the circumstances of the case unless there is some specific prohibition in law to pass such an order".
13. In the case of Begum Mumtaz Riaz v. Masood Siddiqui 1988 CLC 311 (Karachi), which was an appeal under the Cantonments Rent Restriction Act a plea was taken that this Court has no power to remand the case. Learned Single Judge of this Court repelled the contention holding that there was no prohibition in any of the provisions and even otherwise the Court had inherent powers to pass any order, in order to do complete justice, unless it is prohibited by any provision of the Code or the relevant statute itself. In the case of Salahuddin Butt v. Punjab Service Tribunal PLD 1989 SC 597, it has been held by the Honourable Supreme Court that the provisions of Order 41, Rule 33, C.P.C. Are beneficial and could be resorted to give benefit thereof in order to do complete justice between the parties and to prevent the ends of justice from being defeated. In yet another case Ghulam Hussain v. Faiz Muhammad PLD 1991 SC 218, a rule has been laid down that in the case of some difficulty in doing complete justice it should not be treated insurmountable because of the inherent power vested in the original Court under section 151, C.P.C.
14. And the power vested in the Appellate Court under Order 41, Rule 33 and section 151, C.P.C. Dealing with the subject, in the case of Emirates Bank International Limited v. Adamjee Industry Limited 1993 CLC 489, a learned Single Judge of this Court Wajihuddin Ahmed, J., (as his Lordship then was) has held after the detailed survey of the precedent from Pakistan and Indian jurisdiction that, "it is now settled that all procedure is permissible unless found prohibited and the only situation in which aid of section 151 is suchlike situation may not be obtainable is when inherent powers are solicited to perpetuate or further injustice or to condone gross negligence or, generally to defeat the provisions of the Code of Civil Procedure". It has been further held that section 151, C.P.C. Has been enacted with a view to overcome omissions and lacunas in the Code, to soften the rigours of the particular technicalities, to eleviate miseries arising from the absence of an adequate procedural relief and generally, to act ex debi to justified, according to equity, justice and good conscience but always in consonance with the sound judicial principles. In a recent case arising out of the proceedings for compulsory acquisition of land under the provisions of the Land Acquisition Act, 1894, Province of Punjab v. Abdul Majeed 1997 SCM R 1692, the Honourable Supreme Court has held that all procedural laws are subservient to the cause of justice and, therefore, such laws neither limit nor control the power of the Court to pass an order or decree which is necessary to do full justice in the facts and circumstances of the case. While dealing with the power of Appellate Court it has been held that section 107, C.P.C. Is to be read with other provisions of the Code including section 151, which provides that the provisions of the Code do not limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. The Honourable Supreme Court has further held that the power as is referred in section 151 of the Code' is inherent in every Court. For its exercise no support from any enacted law is necessary. While dealing with various provisions contained in Civil Procedure Code the Honourable Supreme Court has further held that the provisions are not exhaustive insofar the powers of the Appellate Court are concerned. The Appellate Court, therefore, in appropriate cases where these provisions do not provide for a remedy, and the jurisdiction of the case so demand may have recourse to the inherent power to pass an order which is necessary to meet the ends of justice. The Honourable Supreme Court has further observed that in granting relief in such cases the Appellate Court will be guided by principle of equity, justice and good conscience.
15. From the principles laid down in the above judgments I find no hesitation in holding that this Court is fully competent to pass an appropriate order to achieve the ends of justice and prevent the abuse of the process of law. Ends of justice should not be defeated or crucified at the altar of technicalities. The Court can always exercise its inherent powers to do the complete justice in accordance with the principles of equity and good conscience. This Court is not only the Court of law but is Court of equity and justice as well. Until and unless any course is specifically prohibited in the Code of Civil Procedure or any other statute law, this Court is fully competent to adopt the course which serves the ends of justice and prevents the perpetuations of injustice. The absence of any specific provisions and technicalities should never be treated as insurmountable hurdle in the dispensation of justice. The learned Advocates for the parties frankly conceded that there is no prohibition in the Land Acquisition Act on exercise of jurisdiction by this Court directing the withdrawal of Government from acquisition proceedings, de-notifying of all the notification under the Land Acquisition Act in the acquisition process, restoring of land to the landowner and putting the parties as well as the land in question in the same position as they were at the time of initiation of acquisition proceedings. So far provisions contained in section 48(1) of the Land Acquisition Act is concerned, I have already expressed my view that it does not deal with the jurisdiction of the Court but merely empowers the Government to unilaterally withdraw from the acquisition of any land of which possession has not been taken. Looking to the language of the provisions, this power can be exercised by the Government without seeking consent of the landowner and without any sanction or approval from any authority under Land Acquisition Act or from any Court. The sole liability with which the Government shall be saddled in the case of withdrawal from any such acquisition is the payment of the compensation determined by the Collector, because of any damage suffered by the owner in consequences of the notice or of any proceedings thereunder and the payment of costs reasonably incurred by person interested, in prosecution of the proceedings under Land Acquisition Act, 1894. So far the power, authority and jurisdiction of the original Court on reference under section 18 of the Land Acquisition Act is concerned, it is governed under section 53 of the Land Acquisition Act, which provides that save insofar as they may be inconsistent with anything contained in the said Act, the provisions of the Civil Procedure Code shall apply. Thus, the Land Acquisition Collector, who is not a Court, has limited jurisdiction but the Courrt as defined in section 3(d) of the Land Acquisition Act has wide powers conferred on Civil Court under Civil Procedure Code.
16. So far this Court is concerned, while hearing appeal under section 54 of, the Land Acquisition Act, it is empowered to exercise all the powers and jurisdiction conferred on the Appellate Court under section 107 and Order 41, C.P.C. Read with section 151, C.P.C. At his juncture I would like to observe that a reading of section 54 of the Land Acquisition Act shows that the provisions of Civil Procedure Code, 1908, applicable to appeal from original decrees have been made applicable to the appeals preferred before this Court specifically and under section 53, the entire Civil Procedure Code except provisions inconsistent with anything contained in Land Acquisition Act, has been made applicable generally, to all the proceedings before the Court under the principles of legislation by reference or incorporation. These principles envisage that when any law to which reference is made, is incorporated/made applicable to the proceedings under any special statute or the statute having reference, then all the provisions contained in the statute to which reference has been made are attracted except those which are expressly excluded. I have carefully perused the entire Land Acquisition Act and have not found anything contrary or inconsistent to the provisions contained in section 107, Order 41 and section 151, C.P.C., therefore, all these provisions are fully applicable to the appeal proceeding before this Court under section 54 of the Land Acquisition Act. The result is that in the absence of any prohibition on the exercise of jurisdiction by the Court, in the Land Acquisition Act or Civil Procedure Act, this Court is fully empowered to invoke its inherent jurisdiction in deciding the appeal in such manner which serves the ends of justice and is beneficial to both the parties. As already observed in the earlier part of this judgment, the learned counsel for the respondent No,1/landowner contended that the market value of the land has been enhanced enormously and if the land in question is restored to the landowner, she would be able to earn much more by selling the land in small pieces as compared to the compensation determined by the Land Acquisition Collector in the award and confirmed by the Court and the learned D.A.-G. Has consented to the restoration of land to the respondent No,1 for the reason that the land is no more required by the Federal Government, which fact was intimated to the Land Acquisition Collector much before the passing of award, I am of the opinion that it would serve the ends of justice to direct the withdrawal of acquisition proceedings and all subsequent orders in this behalf. I am persuaded to agree with the proposition convassed by both the learned counsel during the course of the arguments, for the further reasons that the land is no more required by the Government, which fact was intimated to the Land Acquisition Collector as far back as 7th March, 1995 and in the case of upholding of the acquisition proceedings by merely determining the market value of the land in question, the Federal Government is bound to make further payment of amount in crores, which shall be nothing but sheer wastage of the public revenue. It requires no emphasis that the public revenue is a sacred trust and it is to be spent strictly for the purpose of State necessity, by maintaining highest financial discipline and for achieving a particular purpose. A huge public revenue should not be thrown and wasted just because of a technicality and inadequacy of the statute to meet the peculiar situation. However, I am fully conscious of the principle that the State necessity until and unless unavoidable should not injure and affect the rights of the individuals guaranteed in the Constitution and the law. I would not have proposed to undo the acquisition proceedings merely for protecting the public revenue if it would have affected the rights of the respondent No,1.
17. However, I am persuaded to accept the proposed arrangement additionally for the reason which has priority over the protection of public revenue that the arrangement proposed is more beneficial to the respondent No, 1 . If mere market value of the land is determined by this Court, it shall be on the date of publication of notification under section 4(1) of the Land Acquisition Act, as provided in section 23 of the said Act, which was issued in the year 1994, when the Subzi Mandi situated across the road had not become operational. The Sabzi Mandi started working from May, 1996 and thereafter the price of land has increased manifold. Thus, as contended by Mr. Mushtaque Ahmed Memon, learned counsel for respondent No,1 if land is returned to the landowner now she would be able td earn much more amount by selling the land in small pieces. It is obvious that de-notifying the acquisition proceedings shall be more beneficial to the landowner/respondent No,l. For the foregoing reasons and keeping in view all the attending circumstances, I deem it fit, in exercise of the inherent jurisdiction to direct the authorities concerned under the Land Acquisition Act to de-notify all the Notifications issued in the Acquisition proceedings in pursuance of the direction of this Court. The award passed by the Land Acquisition Collector and the impugned judgment dated 30-6-1996 by the District Judge, Jacobabad in Reference No,1 of 1995 are hereby set aside. Consequent to the above directions, the Federal Government is directed to withdraw from the acquisition proceedings and to hand over the vacant possession of the land in question to the landowner/respondent No,1 without any delay. The concerned officers in the Ministry of Defence/Military Estate Officer/Cantonment Executive Officer, shall immediately give necessary instructions to the Revenue Authorities to hand over the physical possession of the land in question to the landowner/respondent No,1 without any delay. However, the above directions are not the end of the matter as the question of payment of rent/compensation for remaining in possession of the land is yet to be determined. As already shown above the rent demanded by Mr. Mushtaque Memon is very exorbitant and does not appear to be reasonable. The learned D.A.-G. Initially argued that in case the land is returned to the landowner/respondent No,1, no further compensation be paid to her because the land has not been put to any use by the Federal Government and admittedly the land was "Banjar Quadeem' at the time of acquisition and still continued to be so. No damage has been caused to the land.
18. Because of subsequent development such as establishment of Subzi Mandi, Truck Stand etc., in the vicinity, the market value of the land is alleged to have increased and the land shall be returned to the respondent No,1 alongwith the benefits attached and accrued to the land, thereby providing opportunity to have full benefit of the alleged potentialities of the land and the alleged increase in the market value. The benefit to the respondent No,1 on return of land to her, shall be tremendous and enormous as stated by the learned counsel for the respondent No,
1. However, at the end of arguments he stated without conceding and without prejudice to his earlier contentions that at the most the amount of estimated costs received by the respondent No,1 under protest in the year 1995 may be allowed to be retained by her as compensation for retaining of the land by the Federal Government and on account of the expenses/cost, which she might have incurred in prosecution of the proceedings under the Land Acquisition Act relating to the said land. After very careful and anxious consideration I am persuaded to agree with the submission of the learned D.A.-G. There is sufficient force in his contention that land in question is 'Banjar Qadeem' and, therefore, no profit could be earned by putting the land to any agricultural use. The sole virtue of the land is alleged to be its future potential for residential and commercial use, which gives with land itself. When the land is returned to the respondent No,1 it is returned with all its incremental value and the entire benefit shall accrue to the respondent No,1. However, it does not mean that the landowner should not get any compensation whatsoever for remaining out of possession of her land for about 7 years. I am of the opinion that the Legislature has itself provided a guideline under subsection (2) of section 48. It is provided, that whenever, the Government withdraws from any acquisition under subsection (1) of section 48, the person interested shall be paid compensation for the damage suffered by the owner in consequence of the notice in the proceedings, together with all costs reasonably incurred by him in the prosecution of the proceedings under the Land Acquisition Act, relating to the said land. The learned D.A.-G.Further submitted that if the estimated cost of Rs,17,92,735 which was received by the respondent No,1 under protest in March, 1995 was invested in any Saving Scheme, the amount would have been doubled by now. Since this amount was utilized by respondent No,1 therefore, this factor should also be kept in view. Taking all these aspects and factors in considerations, it is directed that the amount of estimated costs received by the respondent No, 1/landowner in March, 1995, shall be retained by her and the Government of Pakistan shall not be entitled to refund thereof. This amount shall be treated as rent/compensation to the respondent No,1 for the damage suffered by her in consequence of acquisition proceedings and on account of costs incurred by her in prosecution of the acquisition proceedings. Before parting with the order, I would like to emphasise on the Provincial Government to issue strict instructions to all the Revenue Authorities and particularly the Land Acquisition Collector to be more vigilant and responsible in intimating the estimated cost of acquisition to the Provincial and Federal Governments. The lack luster attitude on the part of Revenue Authorities and the Land Acquisition Collector in estimating costs of acquisition and subsequent assessment of land in the award at an amount having no proposition to the estimated cost, puts Provincial and Federal Government in embarrassing situation which is always a cause of irritation. The reason being that for every proposed project, the funds are provided to the Departments of the Provincial and Federal Governments at specified amount. The costs of the project is estimated by the concerned departments keeping in view the estimated costs of the acquisition of land. Thus, if normal increase made at the time of final assessment in the award over and above estimated costs, it does not cause any problem as such eventuality is always kept in view. However, as in this case in the first instance Land Acquisition Collector intimated on the basis of information collected from Mukhtiarkar and Tapedar that the estimated costs was Rs,17,92,735. But after the Federal Government was put in possession of the land and an account of technical reasons was prevented from withdrawing acquisition proceedings, the same authority i,e, Land Acquisition Collector by collecting fresh information from several sources including Mukhtiarkar, assessed the value of the compensation of the land in the award at Rs,80,02,63,111. A similar situation arose when the land was acquired in District Thatta for PAF Base Bholari. There should be some nexus in the estimated cost and assessed cost so that the Provincial and Federal Governments are not trapped by giving misleading information and for technical reasons and are put in a very embarrassing situation which is bound to result in causing colossal loss to the public revenue. It is very unfortunate that an attitude and tendency has developed in his country to act in a very negligence and irresponsible manner in respect of the public revenue. The public revenue is a sacred trust and every single rupee of the public revenue is to be scrupulously saved and the public functionaries are enjoined upon to demonstrate full responsibility and very high standard of discipline whenever and wherever the use of public revenue is involved. The failure on the part of public servants in this regard should be met with very strict action. It is expected that the Provincial Government shall institute the necessary enquiry in this case through a senior officer on the point as to why proper enquiry was not conducted and the correct information about the estimated cost of the land was not gathered, at the time of the estimating costs and as to why misleading information was furnished to the Federal Government on the point of costs of land at the initial stage. If the correct Information would have been furnished to the Federal Government, it would have considered the possibility of acquiring another land which was not within the Municipal limit of the Jecobabad Town, thereby reducing the cost of the project. The word 'estimated' is defined in Chambers Law Dictionary, "to judge or calculate (size, amount, or value etc.). Roughly or without measuring to submit to a possible client a statement of the likely costs of carrying out a job, a calculation of the probable cost of a job". Thus, estimate is required to be probable costs and not a cost which has no nexus with ground realities. After holding a proper enquiry the Provincial Government should consider the possibility of taking suitable action against the officers found responsible for acting negligently in discharge of their official duty, which resulted in unnecessary embarrassme nt to the Federal Government and inconvenience to a citizen i,e, respondent No,1. A copy of this judgment be sent to the Chief Secretary, Government of Sindh for necessary action.
19. With the above observation, the appeal is disposed of in the manner as indicated above, with no order as to costs.