JUDGMENT CH. IJAZ AHMAD, J.- Brief facts out of which the present writ petition arises are that the land of the respondents Nos. 2 to 7 was acquired by the petitioner under the provisions of the Punjab Acquisition of Land ' Housing Act; 1973 and possession of the land in question was taken by the petitioner on 16.3.1985,. The Collector announced the award on 5.11.1985 and determined the price in the following terms:-
(i) Rs. 10,66,880/- for the true area of 320 Kanals in favour of the affected land-owners as shown in the Apportionment List at Annexure-A. .
(ii) As regards to compensation for trees, crops the award in respect of compensation tor the same would be announced separately receiving information from the Revenue Department, (Rates of Crops, etc.).
Corrigendum, was also issued by the Land Acquisition Collector on 11.11.1985 to the following effect:- "Also 30% developed plots, will be given to the Land Owners subject to payment of development charges/'
The private respondents being aggrieved filed appeal before the Addl. Commissioner (Revenue), Gujranwala who accepted the appeal of the respondents vide order dated 19.7.1986 and enhanced the compensation from Rs.26,672/- per acre to Rs. 1,26,577.60 per acre. Petitioner being aggrieved filed review petition before the Addl. Commissioner (Revenue) who- dismissed the same vide order dated 15.11.1986. Hence the present writ petition.
2. Learned counsel for the petitioner submits that since the award had been announced on 5.11.1985 before the Repealing Act, XII of 1985 had came into force, therefore, proceedings were to continue and completed under the provisions of the said Act and the rules made thereunder and not under the provisions of Land Acquisition Act, 1894. He further submits that under the Punjab Acquisition of Land (Housing) Act, 1973 the rate of , compensation was not to exceed Rs.40,000/- per Acre but in the present , case the compensation has been fixed at the rate of Rs. 1,26,577/-. He further submits .
That the Land Acquisition Collector and Addl. Commissioner failed to classify, the land in categories as the major portion of and in question was barren. He further submits that the respondents filed appeal and claimed Rs.80,000/- per acre but subsequently respondents i.e demanded appeal claimed compensation of Rs. 1,26,377/-.. Learned counsel for the petitioner further submits that respondents obtained the order in their favour on account of the concession made by the subordinate staff of the Land Acquisition Collector. He further-submits that there is huge difference between prices fixed by the Land Acquisition Collector and the Addl. Commissioner. He further submits that Addi. Commissioner without applying his mind accepted the appeal of the respondents.
3. Learned counsel for the respondents submits that writ petition is liable to be dismissed as substantial justice has been done as the land in question is situated on two pacca Highway Roads.
1h support of his contention he relied upon the following judgments:- PLD 1973 S.C. 236 (Nawabzada Ronaq Ali's case); 1995 SC MR 305 {Muhammad Sabir's case).
He further submits that impugned order is valid by virtue of provision of Section 3 of the Repealing Act, XII of 1985. He further submits that after the Repealing Act the appellate authority is well within his right to look into the subsequent law and grant relief to the aggrieved person. Iii support of his contention he relied upon the following judgments:- PLD 1978 S.C. 220 (Mst. Amina Begum find another's case).
PLD 1965 S.C. 1 {Muhammad Hussain Mia's case); PLD 1964 S.C. 520 {F.A. Khan's case).
He further submits that appeal is in continuation of the original proceedings. He submits that the Addl. Commissioner is final between the parties by virtue of Section 14(3) of the Punjab Land Housing Act, 1973. He further submits that appeal was admitted for regular hearing on 11.11.1985 and the amended law came into field on 11.11.1985 and the amended law came into field on 13.11.1985. He further submits that bill was introduced in the Assembly qua amendment of the Punjab Land Housing Act, 1973 and Collector mala fidley announced the award. He further submits that writ petition is not maintainable as the land Acquisition Collector has not passed the final award in favour of the respondents as is evident from the clause-B for the award that he did not award any compensation to the respondents qua the trees and crops. He further submits that representative of the petitioner had no objection qua the amendment as is evident from para 2 of the impugned order of the Addl. Commissioner dated 19.7.1986. He further submits that the prices of the land in question was determined in presence of the parties and the. Representative of the petitioner agreed of the market price as is evident from paras 9 and 10* of the impugned order. He further submits that agreed market price was prepared of the land in question and the representative of the respondents did not object the same as is evident from Annexure C.1. He further submits that agreed prices and the amendment in appeal was accepted by the representative of the petitioners. Therefore, to this extent the impugned order is consent order and the writ petition of the petitioner is not maintainable. Learned counsel for the respondents submits .That the land in question is situated near the two Highway Roads as is evident from the contents of the award.
4. Learned counsel for the petitioner in rebuttal submits that the land in question is barren and there is no evidence on record to show that the land in question is situated on the two Highway Roads.. He further - submits that Annexure-C/1 does not reveal whether the average price market prepared on the basis of the mutation of the land which was similar to the land of the respondents.
This document does not speak which type of the land i.e. Barren or not on the basis of the average price was made. He further submits that official of the petitioners have only to produce the record.
Therefore, concession made by them does not bind the petitioner. He further submits that they even did not accept this document that the land in question is similar to the land on the basis of which market price was determined.
I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is better an appropriate to reproduce the relevant provisions of Un- Repealed Act, 1973 (Punjab Acquisition of Land Housing Act, 1973) which are as under:- "3. Liability to acquisition:- Notwithstanding anything to the contrary contained in the Land Acquisition Act, 1894 or any other law for the time being in force, all "land Within the Province shall be liable to acquisition at any time under this Act for a housing scheme approved and notified by Government or Official Development Agency.
7. Inquiry and award by Collector.- Qn the day so fixed, or on any other day to which the inquiry has been adjourned, the Collector shall proceed to inquiry into the objections, if any, which persons interested, the Government of Official Development. Agency of the land to the measurements made under Section 6 and into the value of the land to the measurements made under Section 5 and into the respective interests of the persons claiming the compensation and shall make answer to the-
(i) true area of the land;
(ii) compensation which in his opinion, having regard to the 1 productions of Sections 9 and 10 should be allowed for the llnd; and (i.e) apportionment of such compensation amount all the persons known or believed to be interested in the land of Whom; or whose claims, he has information whether or not they have appeared before him.
8. Compensation:- Where any land is acquired under this Act there shall be paid compensation, the amount of which shall be determined by the Collector who shall be guided by the provisions of Sections 9 and 10.
9. In determining the amount of compensation to be awarded for land acquired under this Act, the Collector shall take into consideration-
(i) the market-value of the land to be determined on the basis of two years average sale price of land similarly situated and put to similar use preceding the date of notification under Section 4(1);
(ii) 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 the other land; (i.e) the damage, if any, sustained by the person interested at the time of taking possession of land by reason of the acquisition injuriously affecting his other property, movable, or immovable, in. Any other manner or his earnings;
(iv) If, in consequence of the acquisition of land the person interested is compelled to change his residence or Place of business, the reasonable expenses, if any, incidental to such change: Provided that the maximum rate of compensation determined by the Collector under clauses (i) to
(iv) shall not exceed Rupees Twenty Thousand per acre; and:
(v) the damage sustained by the person interested by reason of dispossession of any standing crops or. Trees or buildings of other structures or installations which may be existing on the land acquired.
10. Factors to be ignored in determining compensation.- In determining compensation as aforesaid the Collector shall not take into consideration.
(i) the degree of urgency which has led to the acquisition;
(ii) any disinclination of the person interested to part with the land acquired; (i.e) any damage sustained by him which if by a private person would not fender such person liable to a suit;
(iv) any damage which is likely to be caused after the date of the publication of the notification under Section 4 by or in consequence of the use to which it will be put;
(v) - any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired; "
(vi) any increase likely to accrue to the value of the other land of the persons interested from the use to which the land acquired will be put; or
(vi) any outlay or improvements on, or disposal of the land acquired, commenced, made or affected, without the sanction of the Collector after the date of the publication of the notification under Section 4, subsection (1).
11. Payment of compensation.- The payment of compensation may be made in the form of cash, bounds, debentures, annuities over a period not exceeding 20 years in the form of developed sites of in a combination of such forms in such manner as may be prescribed: Provided that-
(i) payment in case to each land-owner shall be-
(a) for the first four kanals of the area acquired, hundred per cent, or the compensation award;
(b) for the next three kanals of the area acquired seventy- i.e per cent, of the compensation awarded;
(c) for the next i.e kanals of the area acquired, sixty- i.e per cent of the compensation awarded;
(d) for the next ten kanals of the area acquired, fifty per cent, of the compensation awarded;
(e) for. The next ten kanals of the area acquired, thirty per cent of the compensation awarded; and
(g) for all additional area acquired, i.e per cent of the compensation awarded;
(ii) the maximum payment of compensation in case to any individual land-owner shall not exceed rupees one lac, . The balance being payable in other forms: Provided further that a land-owner whose total land acquired does not exceed eight kanals shall have the opinion to select the form of payment of compensation.
(2) Notwithstanding the provisions of sub-section (1) in case of acquisition of land for a scheme for improvement of katch abadi no land-owner shall be entitled to more than one developed site in lieu of the amount of compensation payable to him. The balance of the amount of compensation may be paid in the. Form of cash, bonds, debentures to annuities over a period not exceeding twenty years. The size of the developed site, to which the land-owner may be entitled, shall be such, as m; y be determined by Government, or the Official Development Agency, as the case may be: Provided that the land owner shall not be entitled to any developed site in lieu of the amount of compensation payable to him if the land is acquired only for facilities^for health, education, recreation, transportation, communication and the utility services and defined in subsection (l)(e)
(i.e) of Section 2 of the Act, however, in such a case the land-owner whose land acquired does not exceed eight kanals but be paid full amount of his compensation in the form of cash.
15. Period for payment of cash compensation.- The compensation payable in cash shall be paid in the prescribed manner within ninety days from the date of announcement of the award."
The pertinent provision of Repealing Act 12 of 1985, Section 3 is as follows:-
3. Continuation of acquisition proceedings and assessment, etc. Of compensation.- Wherein a case proceedings have commenced under the Punjab Acquisition of Land (Housing) Act, 1973, or under its provisions as incorporated or referred to in any other law, rule or instrument, for the time being in force, the same shall continue and shall be completed under the provisions of the said Act and the rules made thereunder: Provided that where in a case an award has. Not been made under Section 7 of the said Act at the time of commencement of . This Act. The compensation in such a case shall be .Assessed awarded and paid under the provisions of the Land Acquisition Act, 1894 (I of 1894): Provided further that in a case in which an award has been made before the commencement of this Act under the Punjab Acquisition of Land (Housing) Act, 1973, but the payment of compensation or a part thereof is to be made through bonds, debentures or annuities, the said compensation shall become due for immediate payment in cash on the commencement of this Act' unless the owner \whose land has been acquired chooses to adjust the same towards the cost of any developed site which may have been given to him as part of compensation."
It is settled proposition of law that preamble is key to understand the Act. The Preamble of the Act reveals that it was enacted to make provisions for the acquisition of land for housing schemes in Urban and Rural areas of the Province and for matters incidental thereto. It is also settled principle of law that Act 8 of 1973 directly interfered with the inviolable right of the people regarding their disposal of property. It was founded upon the maxim of Salus Populi Supreme Lex" that the interests of the public are supreme and that the private interests are subordinate to the interests of the State therefore, it is well-established canon of interpretation that in construing the provisions of such Act the principle of narrow construction is to be adopted with an object of giving benefit to subject. Applying these principles to the facts of the case it' is better and appropriate to notice the object and schemes or these two acts in order to resolve the present controversy. Section 3 of the Act envisaged that the land within the Province of .Punjab was made liable in acquisition for Housing Scheme approved and notified by Government or Official Development Agency whereas Section 4 empowers the Deputy Commissioner to issue the preliminary notification and under the Scheme of the AcT the Collector was also empowered to take possession of the land and assessed the compensation. The features of Act, 1973 reveal that it retained all the provisions relating to acquisition prescribed in Land Acquisition Act, 1894 except that under Section 11 of Act, 1973 different considerations for determining the compensation were provided. This section further prescribed totally different criteria for determining the compensation as well as a new method of payment of compensation/owners in form of bonds debentures etc. Over a period not exceeding twenty years.
This new formula was apparently to the determinant of owners who were entitled to seek compensation on the basis of market value of land at the time of acquisition. Taking into consideration Of this harsh feature in Act 8 of 1973 the Legislature passed the Repealing Act, 12 of 1985 in order to erase from the Statute Book the stringent provisions relating to payment of compensation in compulsory acquisition of land of citizen of State by the Province of Punjab. Now I will examine the submissions of both the parties in the light of the object and the spirit of un- repealed and Repealing Act.. Basically the dispute is with respect to interpretation of Section 3 of the . Act 12 of 1985. The 1973 Act was repealed by the Punjab Acquisition of Land (Housing) Repealed Act, 1985 and by its Section 3,. First proviso, wherein a case and award had not been made under Section 7 of the 1973 Act, at the time of commencement of the Repealing Act, 1985 the compensation in such a case shall be assessed awarded and paid under the provisions of the Land Acquisition Act, 1894. In the present case laid of the respondents was acquired under the provisions of the un-Repeal ed Act, 1973 and the award was announced by the Collector vide order dated 5.11.1985. The respondents filed appeal before the Addl. Commissioner (Revenue) Gujranwala in the month Of November, 1985 which was admitted for regular hearing by him on 11.11.1985. The Repealing Act, 1985 came into force on 13.11.1985. The leaned Commissioner decided the appeal keeping in view the provisions of Repealing Act and enhanced the compensation of the land in question from Rs.26672/- per acre to Rs. 1,26,577.60. The petitioner's plea was rejected that the Addl.
Commissioner had to decide the case on the basis of the provisions of the an-Repealed Act, 1973 but the same was rejected by the learned Addl. Commissioner (Revenue) and accepted the appeal of the respondents on 19.7.1986. The petitioner also filed review application before the learned Addl. Commissioner re-agitated the aforesaid plea but the same was rejected. .The learned Addl. Commissioner Revenue rejected the same oh the principle that on the filing of the appeal, the entire matter became reopened and subjudicial and had to be decided in accordance with law then prevailing as per principle laid down by . The Hon'ble Supreme Court in the Province of East Pakistan Vs. Muhammad Hussain Mia (PJD 1965 S.C. 1), PLD 1964 S.C. 520 (F.A. Khan Vs. Government of Pakistan). The learned counsel of the respondents in support of the aforesaid proposition also relied upon PLD 1978 S.C. 220 (Mst. Amina Begum Vs. Mehar Ghulam Dastgir). In order to resolve the present controversy whether the principle of Repeal on the basis of Section 6 of the General Clauses Act is attracted in the present case or not. It is settled proposition of law whenever there is a repeal of an enactment, the consequences laid in Section 6, of the General Clauses Act will follow unless the section itself indicates different intention. It is a case of simply repeal but when the repealed is followed by fresh legislation on the 'same subject it is necessary not only to look into the Repealed Act-but also the provisions of Repealing Act, In arriving to this conclusion I am fortified by the reported judgment 1990 M LD 1725 (Muhammad Aslant .Vs. Dy.
Commissioner, Sheikhupura). It is also settled law where legislation is Repealed-and enacted in substantially the same terms, the new legislation has taken to have been drafted with knowledge of the judicial decision on the old, and which be interpreted in the light of those decisions as per principle laid down in the following judgments:- (1894) 2 Ch. 557 (Re: Budgetts case); \ .
(1964) P.303 (James Vs. James); (1964) 2.Q.B. 687 (Fire Auto and Marine Co. Ltd's case); (1965) Ch. 148 (Re: Veovel Glove Co. Ltd. 's case); (1965) P.117 (Alford Vs. Alford).
The judgments relied upon by the Addl. Commissioner Revenue and by the learned counsel for the respondents are distinguished on facts and law and have no relevancy to reolve the present controversy. It is also admitted fact that rate of compensation of Rs.20,000/- is fixed by the Statute by virtue of Sections 10 and H of the un-Repeal ed Act and this Court has laid down* principle that the same is not justiciable in Malik Abdullah ' Vs. Multan Development Authority (NLR 1986 Revenue 13) decided on 18.12.1985). In view of the Provisional Constitution Order, 1981 as the fundamental rights were held in abeyance. Mere reading of the Proviso 1 of Section 3 of Repealing Act, 1985 reveals that compensation has to be determined under the provisions of the Land Acquisition Act, 1894 in case an award has not been made under Section 7 of the Un-Repealed Act, 1973 at the time of commencement of the Repealing Act, 1985. The award was announced on 5.11.1985 and the Repealing Act came into' force on 13.11.1985 therefore, impugned orders of the learned Addl.
Commissioner are in violation of this provision of the Repealing Act. The contention of the learned counsel of the respondents that award dated 5.11.1985 is a partial award has no force as in the award the Collector has determined the final compensation of the land in question through the award dated 5.11.1985. The Collector did not have determined the compensation for trees and crops. The Collector has to fix the compensation keeping in view the provisions of Land Acquisition Act. 1894 qua the compensation of trees and crops.
In view of what has been discussed above this writ petition is accepted and orders of the learned Commissioner are set aside and award of the Collector dated 5.11.1985 is upheld.