' Brief facts, out ofwhich the present writ petition has arisen, are that Lahore Improvement trust floated a development scheme known as Kashmir Egerton Road on 2-6-1965 under the provisions of Town Improvement Act, 1922. An area of about 61.12 acres situated in Revenue Estate of Moaza Mozang and Moaza Qilla Gujjar Singh, Tehsil and District Lahore was proposed to be acquired for the said purpose. Notice under section 36 of the aforesaid Act was published on 2-6-1965. The scheme was sanctioned by the Provincial Government vide Notification, dated 21-7-1968 and corrigendum was issued vide Notification, dated 4-6-1970. The Land Acquisition Collector invited objections from the landowners and called their claims with regard to the land acquired by Lahore Improvement Trust, on 23-6-1971. The land of petitioner measuring 8 Kanals was also acquired vide aforesaid Notification. However, the award was not announced with regard to the land of petitioner on the ground that the land was under litigation. The petitioner had constructed a bungalow over the land in question in 1962 and had been residing in it alongwith her family since then. The litigation was pending initially in the Settlement Department and finally the case was decided in favour of petitioner by this Court vide judgment, dated 31-1-1975 in Writ Petition No,293/R of 1971. The Land Acquisition Collector (LAC) announced supplementary award qua the land of petitioner on 18-5-1986. The petitioner being dissatisfied with the aforesaid compensation awarded to him submitted application under section 18 of the Land Acquisition Act, 1894 on 16-6-1986 before LAC, who forwarded the same to President, Lahore Development Authority Tribunal. The respondent filed written statement controverting the allegation levelled in the reference. Out of pleading of the parties the following issues were framed:--
(1) What is the date material for the determination of the compensation?
(2) What is the fair and proper compensation for the land under reference?
(3) Whether the petitioner is entitled for damages under section 48-A of the Land Acquisition Act, 1894?
(4) Relief.
' During the pendency of aforesaid reference, the respondent issued exemption policy. The petitioner under the Exemption Policy executed agreement with the respondents on 1st August, 1989. The contents of agreement reveals that the petitioner was granted exemption to the extent of 2/3 approximate of land in question on payment of development charges and for the remaining land measuring 2 Kanals, 9 Marlas and 9 sq. Ft., she was to get compensation from the Land Acquisition Collector at the assessed rate. The said agreement was registered on 3-8-1989. The President, L.D.A. Tribunal decided the reference against the petitioner vide order, dated 1-4-1991. The petitioner being aggrieved filed this, petition.
2. The learned counsel for petitioner submits that the learned Tribunal has erred in law to decide the reference against the petitioner on the basis of agreement, dated 3-8-1989. It is duty and obligation of the President to determine the compensation and discharge the statutory duty in accordance with the provisions of Land Acquisition Act, 1894. He further submits that Order XXIII, rule 3, C.P.C. Is in conflict with the mandatory provisions of sections 18, 19, 21, 23 and 24 of the Land Acquisition Act, therefore, the learned Tribunal was in error to decide the case against the petitioner in view of Order XXIII, rule 3, C.P.C., which is not applicable in view of section 53 of the Land Acquisition Act. He further urged that respondent No,1 was confined to extent of reference and any transgression of the same rendered the impugned order without lawful authority. In support of his contention the learned counsel has relied on PLD 1981 SC 516, AIR 1930 PC 64, 1985 SCM R 1865.
3. The learned counsel for petitioner further submits that the proceedings under the provision of Land Acquisition Act are administrative proceeding and not judicial proceeding as envisaged by section 26 of the Land Acquisition Act. In support of his contention he has relied upon Ezra v.
Secretary of State for India-in-Council and others 32 Indian Cases 93. He further submits that the Tribunal has exercised his jurisdiction under Special Law on the subject, therefore, the provision of section-9 of C.P.C. Is not attracted. In support of his contention he has relied upon PLD 1980 SC 516.
He has further urged that once the proceedings under the provisions of Land Acquisition Act are commenced, the same must be concluded in terms of provisions of the said Act irrespective of any agreement executed between the parties during pendency of reference for decision before the Tribunal. In support of his contention the learned counsel has relied on AIR 1965 Mys.
222. He further submits that the Tribunal was erred in law to decide the case on the basis of agreement executed between the parties during the pendency of the reference, which is not in accordance with law laid down by superior Courts. In support of his contention he has relied upon AIR 1946 PC 75. He further submits that none of the parties had submitted any application before the Tribunal to decide the controversy between the parties on the basis of agreement arrived between them. The Tribunal has no jurisdiction to decide the controversy on the basis of agreement arrived between the parties as per the'principle laid down by superior Court. In support of his contention, he has relied upon Pakistan through Secretary v. Abdul Aleem 1987 CLC 2403 and Government of Pakistan v. Abdul Aleem 1991 SCM R 1920. He further submits that Order XXIII, rule 3, C.P.C. Is in conflict with section 31 of the Land Acquisition Act read with other provisions of the same Act i,e, sections 18, 19, 21, 23 and 24. Therefore, Order XXIII, rule 3, C.P.C. Is inconsistent with the provisions of Land Acquisition Act. The learned counsel submits that the Tribunal has erred in law to non-suit the petitioner on the basis of agreement executed between the parties in view of Order XXIII, rule 3, C.P.C. He has relied upon Maung Hlay v. U.Ge. AIR 1939 Rang.
300. He further submits that the petitioner had filed the reference against award and during the pendency of reference the petitioner executed agreement with the respondent, which presumed to be executed under protest. In support of his contention he has relied upon Zardad Khan and others v. Government of N.-W.F.P. And others 1987 SCM R 1387. He further submits that the agreement executed between petitioner and respondent No,4 did not mention the single word qua the reference pending before the Tribunal. As the petitioner executed the agreement in view of the policy of the respondent and in view of clause (4) LAC could not pay the compensation to the petitioner in view of section 31 of the Land Acquisition Act as the same had already been deposited in the Court. In support of his contention he has relied upon Jajatput Dugar v. Puran Chand Nahatta and another AIR 1924 PC 200. He further submits that the learned Tribunal decided the reference of petitioner in violation of principle of consistency. In support of his contention he has referred Rashid Ali Khan v. L.D.A. Reference No,597 of 1976, decided by the learned Tribunal on 20-11-1980.
4. The learned counsel for respondent has submitted that the petitioner filed reference before LAC on 16-6-1986, who forwarded the same to the learned Tribunal in March, 1989. During the pendency of aforesaid reference, the petitioner wilfully executed the agreement with the respondents on 1-8- 1989, which was subsequently registered on 3-8-1989. The petitioner waived his right for enhancement of compensation in the said reference as the petitioner accepted the said agreement, which was acted upon between the parties on the principle of Approbate and Reprobate. He further submits that plot measuring 5 Kanals, 10 Marlas and 216 sq. Ft. Was exempted to her over which she had already constructed house. An area of 4 Marlas was also exempted, over and above her entitlement, therefore, the petitioner was satisfied and his claim was properly adjusted. So, the learned Tribunal was justified to non-suit the petitioner under the provisions of Order XXIII, rule 3, C.P.C. He further submits that the learned counsel for petitioner has failed to point out any infirmity or illegality in the impugned order.
5. In rebuttal, the learned counsel for petitioner has submitted that the property in question was evacuee property, which was transferred to the petitioner, therefore, the petitioner is well within his right to claim full compensation of the land in question. In support of his contention he has relied on Muhammad Hafeez and another v. Lahore Development Authority PLD 1980 Lah.
553. He further submits that compensation from Rs,30,000 to Rs,70,000 in case of Nawab Rashid Ali Khan's case had been increased by the learned Tribunal, whose land is also adjacent with the petitioner's land.
5-A. I have given my anxious consideration to the contention of the learned counsel of the parties and perused the record myself.
6. It is better and appropriate to reproduce the relevant provision of Land Acquisition Act and C.P.C.
To resolve the controversy between the parties.
Land Acquisition Act. Section 53: "Save in so far 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."
Section 31:
(1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by someone or more of the contingencies mentioned in the next subsection.
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be, any dispute as to the title to receive the compensation or as to the appointment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted: ' Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: ' Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section. 18: ' Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.
(3) Notwithstanding anything in this section the Collector may, with the sanction of the (Provincial Government) instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned.
(4) Nothing in the last foregoing subsection shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof. Section 21: ' The scope of the inquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by objection. Section 18:
(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken: ' Provided that every such application shall be made,--
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, subsection (2) or within six months from the date of the Collector's award, whichever period shall first expire."
Order 23, Rules 1 and 3, C.P.C.:
(1) Withdrawal of suit or abandonment of part of claim.--- (1) At any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied--
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter or a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.
Compromise of suit: ' Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance with so far as it relates to suit.
7. Mere reading of the aforesaid provision of law, I do not find any inconsistency between the provisions of C.P.C. And Land Acquisition Act. Keeping in view of special circumstances of the present case as the petitioner secured developed plots out of total land acquired by respondents and also respondents had to pay compensation amount of remaining 1/3rd land of the petitioner as assessed by the Land Acquisition Collector, therefore, the contention of the learned counsel of the petitioner that the impugned order of the learned Tribunal is nonexisting in the eyes of law as the learned Tribunal decided the controversy between the parties on the basis of Order 23, rule 3, C.P.C. Has no force. I would like to reproduce the operative parts of the judgments relied upon by the petitioner's counsel to resolve the present controversy which are as under:-- ' M. Sami Ullah v. Collector of Aligarh AIR (33) 1946 PC 75: "It is clear, therefore, that the Land Acquisition Officer, in awarding the amount of compensation under 'section 11, is performing a statutory duty, a duty the exercise of which, in cases where land is to be acquired for a public purpose, concerns the public, since it affects the expenditure of public money. In assessing compensation he is bound to exercise his own judgment as to the correct basis of valuation, and his judgment cannot be controlled by an agreement between the parties interested. On a reference under section 18 the District Judge must also exercise his own judgment and consider, amongst other things, whether the award of the Land Acquisition Officer was based on a correct principle. If in this case, the District Judge considered that the market value of the land to be acquired could be better ascertained by basing it upon a sale of neighbouring land in which the conditions closely resembled those affecting the land to be acquired, rather than by taking an average of prices obtained on a large number of sales in which the conditions were less similar, he was entitled and bound to act upon his own view. In appeal the Judges of the High Court were free to disagree with the District Judge if they thought him wrong, but this they do not appear to have done. They held that the District Judge was not free to act upon his own view because it conflicted with the agreement between the parties. Their Lordships have thought it right to make there observations lest they should be supposed to countenance a construction of the Act which in their view unjustiably restricts the duties and obligations of the Land Acquisition Officer and the Court there under."
' Jagatput Dugar alias Kalidas Dugar v. Puran Chand Nathatta and another AIR 1924 PC 200: "They are of opinion that the parties were not ad idem in connection with this compromise, and that the compromise has thus failed as a settlement of the suit between the parties."
' Rai Pramatha Nath Mullick Bahadur v. Secretary of State AIR 1930 PC 64: "Their Lordships have no doubt that the jurisdiction of the Courts under this Act is a special one and is strictly limited by the terms of these sections. It only arises when a specific objection has been taken to the Collector's award, and it is confined to a consideration of that objection. Once, therefore, it is ascertained that the only objection taken is to the amount of compensation, that alone is the 'matter' referred, and the Court has no power to determine or consider anything beyond it."
' Government of West Pakistan (now Government of N.-W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmad Ali Jan and others PLD 1981 SC 516: "It is only when a reference is made under section 18 that the designated Court is empowered to act and not otherwise; and while exercising its jurisdiction, it cannot go behind the reference and hold that it was illegally made for the reason that the Collector had no power to do so as the application for making the reference was made beyond time. Such exercise of judicial power must be eminent from the jurisdiction otherwise it cannot be exercised."
' Ch. Muhammad Sharif v. Afsar Textile Mills Ltd. And another 1985 SCM R 1865: "The provisions of the C.P.C. Apply to proceedings before the Civil Court on a reference by Collector by reason of section 53 of the Act except when there is inconsistency between any provision of the Code and the- Act. Obviously, therefore, Order VI, rule 17 will be applicable to the proceedings but sections 18, 20, 21 and 25 of the Act indicate to what extent it can be pressed into service for allowing an amendment."
' Zardad Khan and others v. Government of N.-W.F.P. And others 1987 SCM R 1387: "Similar view taken in the case of Shanta Bai v. Special Deputy Collector, Land Acquisition AIR 1971 Andh. Pra. 117 holding that the very fact that the petitioner had earlier filed a petition for reference was indication positive of the protest and it was not further necessary to withdraw money under protest as the requirement of the first proviso to subsection (2) of the section 31 of the Act was sufficiently complied with. This Court had also the occasion to examine the same question, though in the background of somewhat different facts in the case of Wali Ahmad v. Collector, Land Acquisition and others 1985 SCM R 224 and depreciating technical interpretation of the relevant provisions contained in section 31 of the Act, it was held that the fact that the appellant had immediately, after the award, moved' his application for reference indicated that he had not consented to receive the amount of compensation. The view taken in the above case is based on just and reasonable interpretation of the relevant provisions of the Act and we would hold accordingly."
' Pakistan through the Secretary, Communication, Islamabad v. Abdul Aleem 1987 CLC 2403: "Accordingly, as discussed above, the Land Acquisition Collector and the Referee Judge were bound to assess a fair and adequate compensation for the property acquired for public purposes and no element of consent of a party or of the parties could be mad; the sole basis for assessment of fair compensation. The owner is being deprived of the property through compulsory acquisition and is being unsettled therefrom and it is he who is the sufferer and it is he whose suffering is to be compensated fairly and adequately. Therefore, the compensation should be the price which a willing purchaser would pay to a willing seller."
8. The aforesaid judgment was upheld by the Honourable Supreme Court in case Government of Pakistan v. Abdul Aleem 1991 SCM R 1920. Now I intend to reproduce the relevant clause of agreement executed between the parties to resolve the controversy between the parties keeping in view the aforesaid principle laid down by the superior Courts in the cited judgment:-- "The second party further agrees to surrender interests in his/her/their share of land measuring 2 Kanals, 9 Marlas and 216 Sq. Ft. Equal to 1/3rd approximately of the holding to the first party as proportionate contribution for roads and open space and he/she/they shall be paid compensation at the assessed rate by the Land Acquisition Collector, Local Area, The Lahore Improvement Trust if not already paid."
9. It is admitted fact that the petitioner was offered for an exemption of plot. She accepted this plot and paid development charges of the same during the pendency of reference. It is pertinent to mention here that the respondents had exempted plots to the petitioner over which the petitioner had already constructed the house since 1961. In view of these circumstances Order 23, rule 3, C.P.C.
Is applicable as per principle laid down in case Maung Hlay. v. U.Ge. AIR 1939 Rang.
300. The relevant observation is as under:-- "Where the subsequent to the making of the award, it has been shown that the parties themselves treated it as a concluded adjustment by agreement within the meaning of Order 23, rule 3, then the Order applies. It matters not how the parties came to terms provided a genuine compromise of their dispute has been reached."
It is admitted fact as mentioned above that the petitioner accepted exempted plots, therefore, the writ petition is liable to be dismissed on the well-known principle of approbate and reprobate as per principle laid down by the Honourable Supreme Court in Ghulam Rasool's case PLD 1971 SC 376.
10. It is also settled principle of law that Constitutional jurisdiction is discretionary in character since substantive justice has been done between the parties as the petitioner secured the developed plot to the extent of 2/3rd out of her total land whereas 1/3rd was taken by the respondents for the purpose of development of roads and other utilities. In this view of the matter, I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Honourable Supreme Court in Syed Nawab Raunaq Ali's case PLD 1973 SC 236. It is pertinent to mention here that controversy has already been settled in similar matter by the Honourable Supreme Court in Mst. Irshad Begum v. L.D.A. 1987 SCM R 816.
The Land Acquisition Act is a complete Code in itself prescribing mainly to provide fair and adequate compensation to the land owners whose land have been acquired compulsorily. The land measuring only 8 Kanals of the petitioner was acquired by the respondents out of which 5 Kanals, 10 Marlas and 216 sq. Ft. Was exempted to her and the remaining land measuring 2 Kanals, 9 Marlas and 216 sq. Ft. Equal to 1/3rd approximately of the holding of the petitioner was taken by the respondents has proportionate contribution for roads and open plot. This fact brings the case in the area that the compensation was fairly and adequately secured by the petitioner in the shape of developed area alongwith additional 4 Marlas over and above her entitlement coupled with fact that she had to allow compensation of remaining land as assessed by Land Acquisition Collector. It is also admitted fact that the area was developed by the respondents. The petitioner voluntarily executed agreement with respondents. In view of the aforesaid peculiar circumstances, the judgments cited by the learned counsel for the petitioner are distinguished on facts and law. It is settled principle of law that each and every case has to be decided on its own peculiar circumstances.
11. There is also another aspect of the case. The same Tribunal qua the same adjacent land which was acquired by the same notification decided otherwise in Reference No,597 of 1996 titled Nawab Rashid Ali Khan v. L.D.A. On 20-11-1980 and enhanced the compensation from Rs,30,000 to Rs,70,000.
The petitioner has taken specific stand in para. No,2(c) of the writ petition in the following terms:-- "Alongwith other evidence, oral as well as documentary, the petitioner filed a certified copy of the award of the L.D.A. Tribunal, Lahore, dated 19-1-1980 in Reference No,597 of 1976, titled Nawab Rashid Ali Khan v. L.D.A. And others which was marked as Exh.P.5 in the reference of the petitioner.
The land forming the subject-matter of Reference No,597 of 1976 was situated in the scheme and was a few yards away from the land of the petitioner. The amount of compensation in Reference No,597 of 19'76 was enhanced from Rs,30,000 to Rs,70,000 per Kanal. Certified copy of the Aks Shajra (marked Exh.P.6 in the reference) giving actual, location of the land of the petitioner and that of Nawab Rashid Ali Khan attached as Annexure 'D'."
12. The respondents in para. No,2(c) of the writ petition took the following stands:-- "That para. No,2(c) of the writ petition needs no comments."
13. In view of aforesaid circumstances, - the question for determination for me is whether the judgment of the learned Tribunal, dated 9-1-1980 in case Nawab Rashid Ali Khan v. L.D.A. And others is admissible or not. It is settled principle of law that previous decisions in the land acquisition cases are relevant in a subsequent case where the market value of the lands in the same neighborhood is in issue. In forming this view, I am fortified by Madan Mohan Burman v. Secretary of Estate for India 1978 Indian Cases 557 and AIR 1925 Cal.
481. The relevant observations are reproduced hereunder:-- "The reason he gave was that in these cases the awards were made as the result of decisions given by the Civil Court in judicial proceedings and he held that the judgments were inadmissible under the provisions of the Indian Evidence Act relating to judgments and orders. I am unable to agree with him on this point. In assessing the market value of a piece of land the price paid in other transactions relating to land in the neighbourhood must be of some value. What its value is, it is for the Court of fact to determine but I hold that it cannot be rejected as inadmissible on the ground given in the judgment of the learned President."
14. It may also be noted that the Privy Council had admitted in evidence judgments and orders not between the same parties for certain purpose and with certain objects in the subsequent suits.
Reference may be made to:-- ' Ram Ranjan Chuckerbutty v. Narain Singh and others (1894) 22 IA 60 and Bitto Kunwar's case (1897) 24 IA 10.
The equity demands that the petitioner is also entitled to the same compensation as was awarded by the Tribunal to Nawab Rashid Ali Khan, therefore, the impugned judgment is modified and partly accepted to this extent. The respondents are directed to pay enhanced compensation of the land measuring 2 Kanals, 9 Marlas and 9 sq. Ft. At the rate of Rs,70,000 per Kanal as determined by the Tribunal in the said judgment.
' For what has been discussed above, the writ petition is partly accepted with the aforesaid terms.
No order as to costs.