1. This appeal is directed against the judgment and decree dated 25-10-1994 and 30-11-1994 passed by the learned 5th Additional District Judge, Hyderabad dismissing the Land Acquisition Suit No,40 of 1988. The relevant facts are that at the request of National Highway Board, Hyderabad the agricultural land owned by the appellant was acquired to the extent of 2 acres out of S.Nos. 105/1,105/2, and 118/1 under the provisions of Land Acquisition Act, 1894. After acquiring of land in accordance with the provisions contained in the Land Acquisition Act, the question of compensation for the acquired land was considered by the respondent. Notice as required under section 9(3) of the Land Acquisition Act was served on the appellant being an interested person calling upon to state the amount and the particulars of claim of compensation for the land and objection if any to the measurement of the land. The appellant filed objection with the respondent No,1 and the respondent No,1 gave the award on 23-1-1988 allowing compensation at Rs,4,55,660 including the cost of land at the rate of Rs,1,74,273 per acre and compulsory acquisition charges at the rate of 15% and interest at 6% from the date, the possession was taken over. Notice under section 12(2) of the Land Acquisition Act was sent to the appellant intimating the passing of award and the appellant moved an application for referring the matter to the Court to determine the adequate compensation under section 18 of the Land Acquisition Act. The reference was made to the District Judge, Hyderabad who transferred the same to the Court of learned 5th Additional District Judge, Hyderabad. The reference was registered as Land Acquisition Suit No,40 of 1988. The learned Additional District Judge issued notice to the parties and the land acquisit ion officer tiled his written statement in which a plea was taken regarding non-maintainability of the application on the point of limitation. It was further contended by the land acquisition officer that the appellant was served with notice under section 9(3) of the Land Acquisition Act, but they did not file any claim supported with documentary evidence with regard to the market value of the land and that the award has been passed taking into consideration the market value of the land as well-established principle of last 5 years sales of land in the vicinity and that the, award was fair , just and adequate. On the pleadings of the parties, the learned Land Acquisition Judge/5th Additional District Judge, framed the following issues:--
(1) Whether compensation awarded to the plaintif f is inadequate?
(2) What would be the proper compensation for the land acquired?
(3) What should the order be? The appellant examined himself on the above issues. His contention was that he was a builder and developer and he had intention to develop a housing scheme on the land owned by him including the land acquired. He produced no objection certificate dated 7-2-1982 issued by Hyderabad Development Authority (Exh.24) and letter of approval dated 30-3-1983 (Exh.25), lay out plan and no-objection certificate dated 31-3-1984 (Exh.26). No other witness was= examined. On behalf of respondent Assistant in the office of Land Acquisition Officer was examined and he produced the necessary notification issued for acquiring the land. It was contended before the learned Additional District Judge/Land Acquisition Court that the compensation awarded was inadequate and therefore the appellant has objected to it. It was subm itted that the acquired land was included in the project of appellant named as "Gul Fishan Housing Scheme" for which NOC was issued by HDA, but the same was cancelled due to the fact that the land was likely to come under the alignment of the road. It was urged that the project could not materialize due to acquisition of land and therefore the appellant claims compensation to the tune of Rs,9,000,000. It was urged that on advertisement of the scheme inner and outer development he, suffered loss of Rs,35,00,000, as the plots were to be - sold at the rate of Rs,30 per square foot. It was mentioned that land acquisition officer did not treat the land to be property under housing scheme and awarded compensation treating the land to be an urban land subservient to agriculture purpose. It was further contended that the land acquisition officer based his conclusion on the report of Mukhtiarkar mechanically without determining the market value of the land. It was further pleaded that the land acquisition officer ought to have considered potentiality and future use to which the land in question could be put as is required under section 23 of the Land Acquisition Act. The reliance was placed in this behalf on the judgments reported as 1991 MLD 90, 1985 SCMR 45 and KJ) 1986 Karachi 164.
2. On behalf of respondent a plea was taken that the appellant though served with the notice under section 9(3) of the Land Acquisition Act did not submit any particular claim as compensation. It was submitted that since no particular amount was claimed before the Collector in response to notice under section 9(3) of the Land Acquisition Act and no documentary evidence was produced on the point of market value of the land therefore the award was proper and adequate. It was further pleaded on behalf of the National Highway Board, Hyderabad that the appellant's housing scheme was approved in the year 1982 which was cancelled in the year 1984 as the revised plan submitted by the appellant was not approved by the Hyderabad Development Authority;. It was urged that the notification for acquisition of the land was issued in the year 1985 and as such it cannot be said that the NOC of the Hyderabad Development Authority was withdrawn due to coming of acquired land in the alignment of road. It was further contended that the rate of Rs,30 per square foot approved by Hyderabad Development. Authority was inclusive of internal and outer development charges but no document was produced to show as to what internal and external development was carried out. On the basis of above contentions the learned Additional District Judge/Land Acquisition Court held that the housing scheme was approved and NOC was issued subject to condition that the project was to be completed by 31-1-1984 and the Hyderabad Development Authority has to charge for the external development in 7 instalments to be paid from 30-4-1984 to 31-3-1984 at different rates. However no evidence was adduced by the appellant to prove the expenses incurred on the development of the scheme for payment of any external development charges to Hyderabad Development Authority . It was further held that a revised plan was submitted which was not accepted by the Hyderabad Development Authority and therefore the NOC already issued was withdrawn on account of the fact that a proposal of highway bye pass alignment was expected to pass over the portion of S.Nos in question. It was noted by the learned Additional District Judge that NOC for housing scheme was cancelled and withdrawn in the year 1983 much before the notification issued under the Land Acquisition Act in respect of the land which was published in Government Gazette in the year 1985. The learned Additional District Judge therefore held that the proposal of Gul Fishan Housing Scheme of the appellant was not cancelled because of the acquisition of the land in question. It was however , observed that no documentary or other evidence was produced as to what was the market value of the land in the vicinity . The learned Judge further observed that undoubtedly the land in question fell within the limits of H.M.C., but according to the appellant's own admission in cross-examination it was surrounded by agricultural land on all sides and therefore the finding of Land Acquisition Officer to the effect that the land was urban subservient to the agricultural purpose was correct. The learned Additional District Judge further noted that the appellant tiled objections in reply to notice under section 9(3) of the Land Acquisition Act, but no particulars of the claim for the acquired land was given in the objection. It was further noted that the appellant conceded in cross-examination that he had not filed any particular claim specifying the amount of compensation before the passing of award though the notices were served upon him under section 9(3) of the Land Acquisition Act. The learned Judge further observed that the amount and particulars of the claim and compensation sought was not furnished with sufficient reasons and therefore the appellant cannot ask the Court to award more compensation than the Collector has already awarded. The reliance was placed in this behalf on the provisions contained in section 25(1)(2) of the Land Acquisition Act and the Judgement of Honourable Supreme Court of Pakistan in the case reported as 1985 SCMR 45 . Learned Additional District Judge ultimately held that .Since the appellant did not file their claim before passing of award therefore no compensation can be allowed in excess of the compensation awarded by the collector and more particularly in the absence of any evidence on the point of market value of the land. The learned Additional District Judge consequently held that the compensation awarded to the appellant was adequate and proper and the reference was dismissed. Being aggrieved with the dismissal of reference the appellant has preferred this appeal under section 54 of the Land Acquisition Act. In the memo. Of appeal same facts have been stated as pleaded before the learned lower Court. It is admitted that the notice unde r section 9 was issued on 23-9-1985 and 25-8-1986 and compensation was received under protest on 17-3-1988 . According to memo. Of appeal the appellant claimed compensation on account of losses to housing scheme and damages amounting to Rs,80,00,000. It is further pleaded that the trial Court dismissed application under Order 13, rule 2, C.P.C. Filed on behalf of the appellant for production of documents in evidence. It is contended that the lower Court has committed illegality in dismissing application under Order 13, rule 2, C.P.C. And not considering the future potentialities of the. Land under consideration. It is pleaded that the evidence has not been considered and that the learned trial Court has committed illegality in not granting 15% additional compensation as per section 28-A, of the Land Acquisition Act. It is further averred that the learned trial Court has illegally non-suited the appellant on the ground of non-filing of objection on notice under section 9 of the Land Acquisition Act. The fact of non; filing of particulars of specific amount of compensation is not controverted/denied in the memo. Of appeal but it is pleaded that the trial Court failed to note that the appellant has not accepted the award and put up his claim in time. I have heard Mr. Sunderdas learned counsel for the appellant and Mr. Masood A. Noorani learned Additional A.-G.
3. For the respondent.
4. The learned counsel for the appellant has reiterated the points raised before the lower Court and the contentions raised in the memo. Of appeal. The main plank of the arguments on behalf of the appellant before me was on the point that the future potentiality of the land has not been taken into consideration for ale purpose of determining the market value of the land. The finding of the learned trial Court that in reply to the notice under section 9(3) of the Land Acquisition Act, the appellant did not furnish any particulars of amount or details of the claim and therefore no compensation in excess of the compensation awarded by Collector can be allowed has not been rebutted. No material has been produced to show that any particulars of compensation and the details thereof were furnished at any time before the Collector prior to the passing of award. The learned counsel for the appellant has placed reliance on the following rulings containing guiding principles for determining the compensation and the market value of land in the proceedings pertaining to land acquisition:
(i) 1997 SCMR 1692 .
(ii) PLD 1998 SC 32.
(iii) 1996 SCMR 1820 .
(iv) 1992 CLC 1775 .
(v) 1993 CLC 179 .
(vi) 1991 MLD 90 .
(vii) 1994 CLC 160. An unreported judgment of this Court in 1st Appeal No,19 of 1990 (Abdullah and others v. Assistant Commissioner and Land Acquisition Of ficer, Hyderabad and another), dated 4-1 1-1999 has also been produced.
5. The learned Additional Advocate-General has supported the impugned order of learned Additional District Judge and has submitted that the appellant having failed to file the specific claim and details in response to notice under section 9(3) of the Land Acquisition Act is debarred from claiming any amount in excess of compensation awarded by the collector . I have carefully considered the contention raised before me, the impugned judgment and the material available on record. I am of the opinion that the learned Additional District Judge has rightly dismissed the reference by placing reliance on the judgment of Honourable Supreme Court of Pakistan in case of Hyderabad Development Authority and another v. Karam Khan Shoro 1985 SCMR 45. In the cited judgment the land was acquired in Deh Jamshoro, Taluka Hyderabad in October , 1979. Incidentally the land in the present appeal is also situated in the same vicinity .
6. The compensation in the cited case was awarded at Rs,20,000 per acre. In the cited case also the land in question was situated in the vicinity of several housing societies. In the cited case learned 3rd Additional District Judge, Hyderabad awarded the compensation at Rs,1,08,900 per acre which was reduced by this Court to Rs,70,000 per acre. In the cited case also land was situated within the limits of Hyderabad Municipal Corporation and it was held to be urban land but subject to agricultural use. The Honourable Supreme Court of Pakistan considered the provision contained in section 25 of the Land Acquisition Act, 1894, which reads as follows:-- "25. es as to amount of comoensation.-3(1) n the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the collector under section 1 1.
(2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector .
(3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed , the amount awarded by the Collector ." After reproducing above section, the Honourable Supreme Court has held as follows:-- "The section provides for three classes of cases. The first clause of the section refers to the case where the applicant has made a claim for compensation pursuant to a notice given under section 9. In that case, the amount awarded to him by the Court i,e, by the Judge to whom the reference is made shall not exceed the amount so claimed and at the same time it shall not be less than the amount awarded by the Collector under section 11. The second clause provides for the case where the applicant has refused to make such a claim or has omitted, without sufficient reason, to make such a claim. In such a case, the amount awarded by the Court shall in no case, exceed the amount awarded by the Collector . It follows, therefore, that if without any sufficient reason he has refused to take action before the Collector when the award is made, he cannot afterwards ask the Court to which the matter may be referred, to award more than the Collector has already done. The third case is under clause (3) and that relates to case when the applicant has omitted for a sufficient reason to make such a claim. In such a case the amount awarded to him by the Court, shall not be less than and may exceed the amount awarded by the Collector ." In the cited case a plea was taken that the compensation awarded was violative of the provision contained in section 9 of the Land Acquisition Act. However it was found that no notice unde r section 9 was served on the interested person and therefore the plea taken on behalf of Hyderabad Development Authority was repelled and it was held that where notice under section 9 was not served the stringent provision of section 25(2) of the Land Acquisition Act cannot be applied. The Honourable Supreme Court held as under:-- "This statement clinches the matter . Where it was established that notices under section 9 were not served upon the claimant and the notices were not produced in the Court, it was held that it was not possible to say that the requisite notices according to section 9 were issued. The provisions of section 25(2) could not be invoked. As the claimants have omitted for sufficient reasons, to make their claim, they are entitled to enhance compensation. It was found that the claimant acted in good faith and there did not appear to be any negligence on their part. As the Courts below have found it appropriate to condone the default, it is not a matter on which the High Court could take a contrary view and set aside the decisions of the Courts below in second appeal. The stringent provision of section 25(2) can only be applied after a notice, which is strictly in compliance with section 9, subsections (2) and
(8) has been served upon the landowners (AIR 1073 Mys.22). Thus, the appeal fails on this ground."
7. In the present case it is admitted position that the notice under section 9 was served on the appellant and therefore the law as laid down by the Honourable Supreme Court in the above case is fully attracted. The Honourable Surpeme Court reiterated the law laid down in the case cited above in another judgment in the case of Muhammad Sharif v . Afsar Textile Mills Ltd. 1985 SCMR 1 181 in the following Terms: - "Strict jure, the exercise of the jurisdiction of the Court under sections 18 to 28 of the Land Acquisition Act is confined to the matter referred for determination, that is, to inquire into the objections to the collector's award and to make an award upon the evidence before it. Sections 23 and 24 provide a criteria for determining the compensation to be awarded for the land acquired under the Act. These criteria also bind the Collector while assessing the amount to be awarded for the land acquired and it is for this purpose that subsection (2) of section 9 enjoins that all persons interested in the land should state the nature of their respective interest in the land and the amount and particulars of their claims to compensation for such interests, and their objections, if any to the measurement made under section 8 of the Act. Section 11 of the Act provides for an inquiry by the Collector into the objections made by a person interested pursuant to the notice given under section 9 of the Act in respect of the interest in the land, the measurements made under section 8 and the value of the land at the date of the publication of the notification under section 4(1) of the Act. The inquiry is of an administrative nature and the award made is a decision conclusive qua the Collector under section 12 of the Act. It is only if a judicial ascertainment of value is desired by the owner that he can obtain it by requiring the matter to be referred by the Collector to the Court under section 18 of the Act. Reading sections 9, 11. 18 and 21 together what is imperative is that the claimant must give out the particulars of the claim as to the nature of the interest and the amount of compensation desired for it. In other words he should fully present his case before the Collector as this in terms is his pleadings to which he remains confined till the decision of the Collector in regard to the compensation payable. Necessarily , therefore, he is precluded from making out a fresh case either by way of supplementary claim to compensation or otherwise at the stage of judicial determination. This is what is emphasise d by Cutgenven, J., in Secretary of State v. C.R. Subramania Ayyar AIR 1950 Mad. 576, and I see much substance in it as the pleadings are foundation for the grounds on which an objection is taken to the award while seeking a judicial determination under section 18 of the Act and the Court has no power to determine or consider anything beyond it. In the present case a higher amount was claimed pursuant to notice issued unde r section 9(2) but in the written application filed before the Collector a flat rate Rs,6,400 per acre was claimed as a value of the land acquired which to all intents and purposes had been pleaded and did not become the subject-matter of inquiry under section 11 of the Act. This being so it was a case where he had intentionally waived his right to claim a higher amount with the full knowledge of his existing right which, in law, amounted to an implied agreement not to claim a higher amount. Therefore, he could not later be allowed before the Court to which the matter was referred to re-assert his existing right to a higher amount as the matter referred for determination was his specific objection to the award, that is, the value per acre of land, as its market price, irrespective of classification, and accordingly , the amount claimed was its integral part. A case directly in point is the Province of Bengal v. Ram Chandra Bhutika and others AIR 1994 Cal.
247. Support is also available from the review of other case such as the Land Acquisition Officer, Karachi v.
8. Hiranand Lilaram AIR 1941 Sindh 52, Secretary of State v. C.R. Subramania Ayyar AIR 1930 Mad. 576 and Secretary of State v. Tikka Jagtar Singh AIR 1936 Lah. 733 and as held by the Judicial Committee in Pramata Nath Mulick Bahadur's case, the jurisdiction of the Court did not extend beyond the determination of this question as that was the specific matter . In this view of the matter , it could not be the case where the Collector had failed to consider any relevant criterion for assessing the market value of the land as provided in sections 23 and 24 of the Act as was the case in Province of Bengal v . P.L. Nun AIR 1945 Cal.
9. 312."
10. The law as laid down by the honourable Supreme Court has been followed by the Peshawar High Court in case of Pakistan through Secretary , Ministry of Defence and another v. Nizakat Shah and 7 others 1987 CLC 1844 . It has been held in this case that the claimant must give out particulars of his claim, the nature of his interest and amount of compensation claimed for it. Claimant should fully present his case before Collector because it would be his pleading to which he would remain confined till decision of Collector . It has been further held that the claimant is precluded from making out a fresh case either by supplementary claim of compensation or otherwise at the stage of judicial determination. It has been further held that the pleadings are foundation for grounds on which objection is taken to award while seeking judicial determination under section 18 and Court has no power to determine or consider . Anything beyond pleadings. Respectfully following the dictum, laid down by the Honourable Supreme Court in the judgments cited above, I am of the considered opinion that the learned Additional District Judge has rightly rejected the reference for enhancement of compensation. Section 9(2) of the Land Acquisition Act reads as follows:- "9(2). Such notice shah state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at the time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice) and to state the nature of their respective interests in the land and the amount and particulars of their claim to compensation for such interests, and their objections (if any) to the measurements made under section 8. The notice shall furthermore contain a direction to the effect that any person interested may, if he so chooses, while preferring his claim to compensation for his interest in the land, intimate to the Collector in writing his option that compensation be paid to him. The Collector may in any case require such statement to be made in writing and signed by the party or his agent--
(a) on the basis of the average price derived from the sale transaction in respec t of which mutations have been attested during the five years immediately preceding the 30th June, 1939, and which relate to the same class of land in the same revenue estate in which the land to be acquired is situated; or
(b) if no mutations of sale transactions of land in that revenue estate were attested during the five years preceding the 30th June, 1939, then on the basis of the average price derived from the sale transactions relating to the same class of land about which mutations have been attracted during the said period, in all contiguous revenue estates in the same assessment circle."
11. The Collector before giving award is required to hold inquiry under section 11 of the Land Acquisition Act. The claim as is required to be preferred and the particulars of the claim are in the nature of pleadings on behalf of claimant which forms foundation for subsequent inquiries including the inquiry under section 11 of the Land Acquisition Act by the Collector and reference made to the Court under section 18. The Collector is required to confine the inquiry to the pleadings and the Court is also required to consider and to determine the amount of compensation on the basis of specific claim preferred by the claimant before the Collector . If no claim is preferred or no particulars and details of the compensation are filed in response to notice under subsection (3) and the objection is filed before the Collector in general terms, the stringent condition as expressed by the Honourab le Supreme Court, contained in section 25(2) of the Land Acquisition Act shall come into play and preclude the Court from awarding any compensation exceeding the amount awarded by the Collector .
12. In view of the unrebutted fact that particu lars and specific amount of compensation was not furnished before the Collector in response to notice under section 9(3) of the Land Acquisition Act, it is held that the learned Additional District Judge rightly dismissed the reference to which no exception can be taken. The rulings on which the learned counsel for the appellant has placed reliance cannot be considered in the presence of bar contained in subsection
(2) of section 25 of Land Acquisition Act. The impugned judgment and decree is therefore upheld on the point of compensation. However , I am persuaded to agree with the contention that the learned Additional District Judge ought to have allowed additional compensation under section 28-A of the Land Acquisition Act at 15%. The judgment and decree is therefore modified to the extent that the appellant is entitled to additional compensation at 15% per annum of the compensation awarded by Collector and upheld by the learned Additional District Judge which shall be paid from the date of notification under section 4 of Land Acquisition Act to the date of payment of compensation as provided under section 28-A of the Land Acquisition Act. The appeal is partly allowed to the extent and manner indicated above.