ASIF SAEED KHAN KHOSA, J.---Through this consolidated judgment we propose to decide Regular First Appeal No.77 of 1994 and Regular First Appeal No.41 of 1995 together as the questions of law and fact involved in both these appeals are similar and they arise out of the same proceedings of acquisition of land.
2. The necessary facts giving rise to Regular First Appeal No.77 of 1994 are that the Water and Power Development Authority (hereinafter referred to as WAPDA) acquired land measuring 1234 Kanals, 18 Marlas of land in village Kotla and 770 Kanals, 15 Marlas of land in village Hala in Tehsil Kot Addu, District Muzaffargarah for a public purpose i.e. Construction of a Power Station, 220 K.V. Grid Station and a colony for the employees. A notification under section 4 of the Land Acquisition Act, 1894 was published in that regard on 17-5-1984. After completion of the necessary formalities an Award in respect of acquisition of that land was announced by the Land Acquisition Collector, WAPDA on 27- 9-1984 at the following rates:-- Village Kotla = 714 Kanals Rs.80,000 per acre = 520 Kanals 8 Marlas @ Rs.38,500 per acre. = 1234 Kanals 8 Marlas Village Hala= 60'Kanals 20 Marlas @ 80,000 per acre. = 293 Kanals 2 Marlas @ Rs.65,000 per acre. = 417 Kanals 1 Marla Q 30,000 per acre. = 770 Kanals 15 Marlas The respondents herein, who were the owners of the acquired land, felt aggrieved of the said Award and they filed an application under section 18 of the Land Acquisition Act, 1894 seeking enhancement of the compensation. Resultantly a reference was brought before the Senior Civil Judge, Muzaffargarh in that respect. The present appellants tiled a reply to the said reference contesting the claims of the respondents. In view of the divergent stands taken by the parties the following issues were framed by the learned Senior Civil Judge, Muzftargarh:---
(1) Whether the application is time-barred? OPR
(2) Whether the applicants have no cause of action? OPR
(3) Whether the impugned order of the Land Acquisition Collector, dated 24-9-1984 is not legal and the same requires to be enhanced? OPA
(4) Relief.
3. In support of their claim the respondents produced Utnar Farooq Ehsan as P.W.1, Muhammad Akram Patwari as P.W.2 and Muhammad Waris respondent appeared as P.W.3. The respondents also tendered in evidence copies of Register Haq-Daran Zameen (Exh.S.P.I and P.2), copies of Khasra Girdawari-(Exhs.P.3 and P.4), copies of the Award (Exhs.P.5 and P.6), copies of mutations (Exhs.P.7 to P.27), a copy of Aks Parcha (Exh.P.28) and a copy of Jamabandi (Exh.P.29). As against that the appellants did not produce any oral documentary evidence in support of their case but instead they only submitted copies of the proceedings of acquisition and the Award in their defence.
4. After attending to all the factual aspects of this case as well as the evidence brought on the record the learned Senior Civil Judge, Muzaffargarh answered all the issues in favour of the respondents. On the all important issue regarding the rate of compensation the learned Senior Civil Judge enhanced the amount of compensation in respect of the land in Mauza Kotla from Rs.44,500 per acre to Rs.73,104 per acre. It was, thus, ordered that the appellants shall make payment to the respondents at the said rate after deducting the amount of compensation awarded to them alongwith 15 % compulsory acquisition charge on the remaining amount. The respondents were further held to be entitled to compound interest at the rate of 8 % per annum of the outstanding amount from the date of compensation till the date of payment of the balance amount. The petition was, however, dismissed to the extent of village Hala. The parties were left to bear their own costs. The said order passed by the learned Senior Civil Judge on 2-3-1994 has been called into question by the appellants before this Court through Regular First Appeal No. 77 of 1994.
5. The facts leading to the tiling of Regular First Appeal No. 41 of 1995 are somewhat identical to the facts mentioned above except that through the impugned order dated 10-11-1994 learned Senior Civil Judge, Muzaffargarh had enhanced the amount of compensation payable to the respondents therein from Rs.80,000 per acre in village Kotla to Rs.2,00,000 per acre.
6. We have heard the learned counsel for the parties at length and have perused the record with their assistance. In support of both these appeals the leaned counsel for the appellants have raised the following two contentions:--
(1) The amount of compensation decided in the Award had been accepted and received by the respondents in both these appeals without any protest and, therefore, by virtue of the provisions of the second proviso to subsection (2) of section 31 of the Land Acquisition Act, 1894 the said respondents could not file an application under section 18 of the said Act. Reliance has been placed in this regard on the cases of Muhammad Iqbal v. Commissioner Multan Division, Multan and 2 others (1991 CLC 131), Suresh Chandra Roy v. The Land Acquisition Collector, Chinsurah (AIR 1964 Calcutta 283) and Umar Farooq v. Acquisition Collector, Bannu and 4 others (PLD 1975 Peshawar 103).
(2) The rate of compensation had been enhanced by the learned Senior Civil Judge, Muzaffargarh on the basis of a selective sample of mutations which did not correspond with the character of the land which had been acquired and, thus, an exaggerated rate of, compensation had been fixed by the learned Senior Civil Judge which was divorced from reality.
As against that the learned counsel for the respondents in these appeals have maintained that WAPDA could not tile an appeal before this Court against the impugned orders passed by the learned Senior Civil Judge, Muzaffargarh. Reliance in this regard has been placed on the cases of Water and Power Development Authority v. Ghulab Din (1988 CLC 1979), Muhammad Mushtaq Ahmed Khan and 2 others v. The Assistant Commissioner, Sialkot and 3 others (PLD 1983 Lahore 178), Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad and others (PLD 1987 SC 485) and Rehman Khan and 54 others v. Military Estate Officer and 2 others (1988 SCMR 1160). It has further been argued by the learned counsel for the respondents that no evidence was led by the respondents before the learned Senior Civil Judge, Muzaffargarh so as to rebut the evidence produced by the respondents and, therefore, the appellants are in no position to question the rate of compensation determined by the learned Senior Civil Judge on the basis of the evidence led by the respondents.
7. After hearing the learned counsel for the parties and going through the record of these cases we have failed to find any merit in both these appeals. As tar as the contention of the learned counsel for the appellants that receipt of the compensation by the respondents without protest disentitled them to tile an application under section 18 of the Land Acquisition Act, 1894 we cannot do better than reproducing the following paragraphs from the judgment rendered by a learned Division bench of this Court in the case of Province of Punjab and others v. Mufti Muhammad lshaq and others (PLD 1984 Lahore 261):-- "
18. We would now deal with the second point raised by the appellants in so far as it is based on the plea of acceptance of the award by the respondents. On analysis of the provisions of section 18, it has to be observed that it confers valuable right on and provides a remedy for 'persons interested to require the Collector to refer their objections to his award for the determination of the Court, whether those objections be to the measurement of the land, amount of compensation, the persons to whom it is payable, or apportionment of the compensation among the persons interested: The exercise of this right is pre-hedged by conditions precedent on fulfilment of which conditions alone depends the validity or competence of the reference claimed which are that (a) person interested should not have accepted the award; (b) there should be a written application given to the Collector for the purpose; (c) the objections of the person interested should conform to those listed in subsections (1); and (d) the application should state the grounds on which objection to award is taken. The question of prescribed limitation within which such an application can be filed is presently not in point. These are requirements which go to the root of the matter and these must be substantially complied with. We may refer here advantageously to the weighty observations of the Judicial Committee of the Privy Council to the case of Nosserwang v. Mir Mynoodn Khan (6 MIA 134), wherein it has been laid down that wherever jurisdiction is given by an Act of Parliament and such jurisdiction is only given upon certain specified terms contained in the Act itself, it is a universal principle that these terms must be complied with in order to create and raise the jurisdiction. If they be not complied with., the jurisdiction does not arise.
It appears to us that this valuable statutory right of the citizens whose, lands have been acquired compulsorily to agitate the matter for award of fair compensation or redress of other grievances recognized by law through the intervention of the Court, is not an absolute or unbridled right as is evident from the built in pre--conditions laid down in the very provision conferring the right and the remedy. For the purposes of the present cases, it would suffice to observe that the appellants could succeed in their objection by showing that the respondents were persons interested who had accepted the award and thus, one of the essential pre-conditions not being fulfilled, the applications filed thereafter were incompetent and the Collector could refuse to make the reference or if made the Court should have thrown out the same being invalid and incompetent.
19. The question to be answered precisely is whether in the facts and circumstances of these appeals it can reasonably be said that the respondents (persons interested) accepted the award of the Collector so as to extinguish the rights and the remedy conferred and provided by section 18 of the Act. It has to be borne to mind while examining the proposition under consideration that this section has not by itself defined or explained as to what constitutes acceptance of award nor spelt out in clear terms what acts of omission or commission or conduct on the part of a person interested would amount to acceptance or non-acceptance of the award. The matter, therefore, can be best answered by examining the facts of each case and on drawing proper inference therefrom. In order to construe the import of the word 'accepted' one has, therefore, to have resort to ordinary dictionary meanings. We propose doing so.
The word 'accept' as per the Concise Oxford Dictionary (New Edition) means--- ---consent receive (person, something offered); answer affirmatively (invitation, suitor): tolerate; submit to (accept the umpire's decision); receive as adequate or valid------..'
Again, in Black's Law Dictionary (fifth Edition), the word 'accept' has been explained to mean-- 'to receive with approval of satisfaction; admit and agree to; concede to or consent to; receive with approval...'
On proper construction of section 18 and on appreciation of the facts and circumstances of these appeals, it appears obvious to us that the respondents could not be dubbed as being guilty of submitting to Collector's award or receiving the same with approval or satisfaction so as to amount to their acceptance of it and thus, precluded from filing applications under section 18 of the Land Acquisition Act, 1894 or subsequently to have the reference determined on merits in accordance with law. The respondents indeed had done no such acts as could be construed by the Collector or the Court to amount to consent or to receive as adequate or valid the money offered by the Collector so as to attract the bar contained in section 18 itself. On the contrary not only the respondents did not accept the Collector's award but being dissatisfied raised objections thereto and stated the ground for such objections. They also did not, before exercising their rights, factually receive the compensation amount offered by the Collector as per his award but instead filed applications before him requiring him, inter alia, to refer their objections to the compensation awarded for determination by the Court. In this set of circumstances, it is not possible to accept the contention that the respondents had in any manner demonstrated their intention to accept the award and they thereby lost statutory right or remedy to receive enhanced compensation as determined by the Court for their acquired lands. We are inclined to hold that the applications under section 18 submitted to the Collector for reference were competent and validly made. In such a situation, the Collector was left with no alternative but to refer the matter on such applications being made within the period prescribed by section 18 and being also not barred by second proviso to section 31(2) of Act. Jagarnath Lall v. Land Acquisition Deputy Collector, Patna (AIR 1940 Pat. 102 (S.B.)). The Collector himself construed the position in no different manner by actually forwarding the reference to the Court for determination. "
The factual position in the present cases was not in any manner different from that in the above- referred precedent case. Apart from that we have also noticed that no objection at all had been taken by the appellants in their reply to the reference under section 18 of the Land Acquisition Act, 1894 before the learned Senior Civil Judge, Muzaffargarh regarding the respondents' disentitlement to file an application under section 18 of the said Act on this score. Furthermore no such issue was claimed or framed before the Senior Civil Judge nor any argument had been advanced before the said Court in that regard by the appellants. Even in the memoranda of the present appeals no such ground had been taken by the appellants in so many words. Thus, in our view it is now too late in the day for the appellants to advance such a plea at such a stage of the matter. It also goes without saying that the question whether the respondents had received the amount of compensation under the Award without protest or not is a question of fact which cannot be agitated before or adjudicated upon by this Court in the first instance in the absence of any material in that regard. In this view of the matter we have felt no hesitation in rejecting the said contention of the appellants.
8. As regards the second contention of the, learned counsel for the appellants in respect of determination of the rate of compensation by the learned Senior Civil Judge, Muzaffargarh on the basis of selective and unrepresentative material suffice it to observe that the findings of the learned Senior Civil Judge in that regard had to be based on the evidence about the market price of the land in question produced by the respondents alone as admittedly no evidence was led before the learned Senior Civil Judge by the appellants in that regard. The witnesses produced by the respondents before the learned Senior Civil Judge had stated about the market price of the land in question as well as about the sales which had taken place in the area but surprisingly the said witnesses were not cross-examined by the appellants on those scores. For instance Muhammad Waris (P.W.3) stated that market price of the land in the area was Rs.2,00,000 per acre, that there were houses and orchards on the land in question and that an adjacent and similar land had been acquired by the Railways Department at the rate of Rs.4,00,000 per acre. These assertions of fact were never challenged in the cross-examination of the said witness. Even the Patwari produced by the respondents was not questioned by the appellants in that regard. During the hearing of these appeals we required the learned counsel for the parties to calculate the average sale price on the basis of the mutations available on the present record and the said average indeed came to be far higher than the rate of compensation decided by the learned Civil Judge in favour of the respondents. In view of these reasons we have concluded that even this contention of the learned counsel for the appellants does not hold much water.
9. Adverting now to the contention of the learned counsel for the respondents that WAPDA could not file the present appeals before this Court suffice it to observe in that context that in the present appeals the Province of Punjab through Collector Muzaffargarh as well as the Land Acquisition Collector, WAPDA are also co-appellants of WAPDA and, therefore, even if WAPDA is taken out of the array of appellants still the present appeals have been competently filed by the Province of Punjab and the Land Acquisition Collector.
10. At this stage the learned counsel for the appellants have maintained that the lands subject- matter of both these appeals are identical and are situated in the same vicinity and, therefore, the learned Senior Civil Judge could not determine different rates of compensation in both these cases. In response to this argument of the learned counsel for the appellants it has been pointed out by the learned counsel for the respondents that the land subject-matter of Regular First Appeal No. 77 of 1994 was mostly uncultivated whereas the land subject-matter of Regular First Appeal NoA1 of 1995 was cultivated land with orchards and crops available thereon and, thus, the learned Senior Civil Judge. Muzaffargarh was amply justified in determining different rates of compensation for these different lands. Even otherwise we would have considered enhancement of the rate of compensation in Regular First Appeal No.77 of 1994 if any cross-objection or an appeal had been filed in that case before us by the respondents therein.
11. For what has been discussed above both these appeals are dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.