This appeal, which purports to be under section 19 (f) of the Defence of India Act, 1939, calls in question the quantum of compensation awarded by the learned Arbitrator in respect of the land of the appellant acquired by the Government of Pakistan, the respondent herein.
2. The facts which have given rise to this appeal are that soon after the outbreak of the Second World War, the Collector of Karachi, by 3 separate notices, No. R/430, dated 7-5-1941, No. R/7007, dated 5-8-1941 and R/899, dated 3-2-1942, acquired an area of 1295 acres and 15 ghuntas of land in Deb Mehran, Doozan, Thano and Tor under rule 79 of the Defence of India Rules. The requisitioned area included 1 acre from Survey No. 164 and 4 acres, 4 ghunras, from Survey No. 165 of the same Deh. These two survey numbers alongwith Survey No. 146, Deh Mehran, were subsequently purchased by the appellant at the rate of Rupee 1 per square yard through a sale deed registered on 23-8-1952. On 7-12-1956, the President promulgated the Requisitioned Land (Continuance of Powers) Order, 1956, hereinafter referred to as the Order, to provide for the continuance of certain emergency powers in relation to requisitioned land in the then Federal Capital of Karachi. In exercise of the powers conferred on him by Article 5 (I) of the said Order, the Collector of Karachi, on 27-11-1960, permanently acquired the requisitioned land, including the appellant's land comprising an area of 13 ghuntas from Survey No. 164, Deh Mehran, and 3 acres and 22 ghunras from Survey No. 165 of that Deb. For determining the compensation payable to the claimants for the acquired land, Mr. Justice Vellani was appointed as an Arbitrator on 11-4-1962 under section 19
(b) of the Defence of India Act, 1939. The appellants preferred claims before the Arbitrator at the rate of Rs. 15 per square yard while according to the objections filed by the respondent the proper compensation payable was at the rate of Rs. 120 per acre. On 28-6-1968, Mr. Justice Vellani gave his award by which he awarded compen--sation to the appellants for their acquired land at the rate of Rs. 6,000 per acre. In addition, he awarded 15 % compulsory acquisition charges and also 6 % on the amount awarded.
3. The only point urged before me by Mr. Iqbal Kazi, the learned counsel for the appellants, was that in awarding the compensation the learned Arbitrator had not followed the criteria, which he himself had laid down, for determination of the compensation payable. The learned counsel submitted that if this criteria had been properly followed by the learned Arbitrator he should have awarded compensation to the appellants at the rate of Rs. 3 per square yard.
4. Mr. Muzaffar Hassan, the learned counsel for the respondents, however, raised a two-fold plea.
His first contention was that no appeal lay against the award of the Arbitrator and consequently the present proceedings were incompetent. His next contention was that the rate of compensation awarded by the Arbitrator was reasonable and in accordance with the evidence adduced before him.
5. In support of his plea that no appeal lay from the award of the Arbitrator, Muzaffar Hassan placed reliance on Article 6 of the Order, and stressed the distinction between the provisions contained therein relating to the application of the provisions of the Defence of India Act, 1939, and the rules thereunder to compensation payable for requisitioned property and these made applicable for determination of compensation payable for acquired land. Mr. Iqbal Kazi also relied on the provisions of the said Article and submitted that on a proper reading thereof, it was clear that the right of appeal to the High Court was preserved under the Order even in the case of an award relating to compensation payable for acquired land. It is, therefore, necessary to examine the provisions of Article 6 of the Order to assess the relative merits of the arguments advanced by the two learned counsel.
The said Article reads as follows :- "6. Payment of compensation.-(1) In respect of the continued subjection of requisitioned land to requisition under this Order compensation shall be determined and paid in accordance with the provisions of section 19 of the Defence of India Act, 1939 (XXXV of 1939), and of the Rules made thereunder.
Provided that all agreements and awards under the said section in respect of the payment of compensation for the period of requisition before the expiry of the said Act shall continue to be in force and shall apply to the payment of compensation for the period of requisition after such expiry.
(2) In respect of any acquisition of requisitioned land under the Act or the Ordinance or this Order the amount of compensation payable shall be such sum as would be sufficient to purchase at the market rate prevailing on the date of notice under Article 5 a piece of land equal in area to, and situated within a distance of three miles from, the acquired land, and suitable for the same use as that to which the acquired land was being put immediately before the date of its requisition, or a sum equivalent to twice the market value of the acquired land on the date of its requisition, whichever is less ; and such amount shall be determined and paid in accordance with the procedure set out in the aforesaid section 19 and the Rules made thereunder.
(3) For the purposes of clause (1), all the provisions of the aforesaid section 19 and the Rules made thereunder, and for the purpose of clause (2) such of these provisions as relate to matters of procedure, shall be deemed to be continuing in force."
6. Mr. Muzafar Hassan strongly urged that whereas the combined effect of clauses (1) and (3) of the said Article was that not only the compensation in respect of requisitioned land was to be determined and paid in accordance with the provisions of section 19 of the Defence of India Act and the Rules framed thereunder, but further for this purpose the said section and the Rules were deemed to be continuing n force, while the effect of clauses (2) and (3) of the said Order was, firstly, that the rate of compensation for acquired land was to be in accordance with the provisions of clause (2), secondly, that only the procedure for determining and paying such compensation was to be in accordance with section 19 of the Defence of India Act and the Rules framed thereunder, and only to this extent, namely, in regard to procedural matters only, the provisions of section 19 of the Defence of India Act and the Rules framed thereunder were deemed to be continuing in force. The learned counsel argued that inasmuch as an appeal is substantive right and not a matter governed by procedure, hence the provisions contained in section 19 (f) of the Defence of India Act regarding appeal to the High Court would not apply in respect of an award for determining compensation for acquired land and consequently the present appeal is incompetent. Mr. Iqbal Kazi, on the other hand, sub--mitted that since compensation for acquired land was to be determined and paid in accordance with the procedure set out in section 19 of the Defence of India Act, it clearly meant determination - of the compensation by the Arbitrator, as modified by the High Court, in cases where an appeal was preferred.
7. Neither of the learned counsel were able to cite any authority in support of the view whether an appeal against an award of an Arbitrator made in pursuance of the provisions of Article 6 of the Order was or was not competent to the High Court. However, Mr. Iqbal Kazi relied upon the decision in Kollegal Silk Flatures v. Province of Madras (AIR 1949 Mad. 39), which decision, according to the learned counsel, at least indirectly supported his contentions. In that case the question which fell for consideration before the Madras High Court was whether the words of exclusion in clause (g) of section 19 of the Defence of India Act, cover the Limitation Act both in respect of proceedings before the Arbitrator as well as an appeal to the High Court. It was observed that "Arbitrator" in clause (g) covers the entire proceedings from their commencement before the Arbitrator to their determination.
8. In my opinion, however, the question whether the provisions of rule 19 (g) of the Defence of India Rules relating to filing of appeal before the High Court are applicable to an award of an Arbitrator determining the compensation payable for acquisition of land under the Order can be determined by a proper appreciation of Article 6 of the Order. Clause (2) of the said Order specifically provides that the amount of compensation shall be determined and paid in accordance with the procedure set out in section 19 of the Defence of India Act. The Order does not provide by whom the amount or rate of compensation is to be determined. However, since the determination has to be in accordance with section 19 of the Defence of India Act, it means that the determination will have to be by the Arbitrator, as in the instant case. The award of the Arbitrator, however, is not final, but according to section 19 (g) of the aforesaid Act is subject to appeal to the High Court. I am, therefore, of the opinion that determination of compensation under the Order for acquired land will be by the Arbitrator, subject to the decision of the High Court in appeal, in cases where an appeal is preferred. No doubt, clause (3) of Article 6 of the Order provides for continuance, for the purposes of determination of compensation of acquired land, only the procedural provisions contained in section 19 of the Defence of India Act, which would suggest the exclusion of- the substantive provisions contained in the said section, but this exclusion, in my humble view, would appear to be limited to matters for which specific provision is made in clause (2) of Article 6 of the Order itself, namely the principles upon which the quantum of compensation is to be worked out, and consequently the provisions contained in section 19 of the Defence of India Act relating to the principles for determination of the amount of compensation would not be applicable. To my mind, the exclusion of the provisions of section 19 of the Defence of India Act could be legitimately excluded only to that extent and the exclusion could not be presumed as far as the appeal to the High Court is concerned. An appeal to a superior Court is an important right and if it was the intention to take away this valuable right, one would naturally expect more explicit provisions in this behalf and not an indirect and ambiguous exclusion. As stated by Craise on "Statute Law", Seventeenth Edition, page 122, "A distinct and unequivocal enactment is also required for the purpose of either adding to or taking from the jurisdiction of a superior Court of Law"., Since there is no such distinct and unequivocal enactment, the exclusion of the jurisdiction of the High Court or the extinction of the right of appeal to the High Court cannot be presumed.
9. As regards the amount of compensation, it has to be the sum which is sufficient to purchase at the market rate a similar aria of land as the acquired land, and situated within 3 miles of the acquired land and suitable for the same use as that to which the acquired land was being put immediately before the date of its requisition. The alternative valuation' at the rate of twice the market value of the acquired land on the date on requisition will not be applicable in the instant case as it is not known what was the market value of the land in 1949, when it was first requisitioned I. Now so far as the market value of the land in question is concerned in 1960,1 when it was acquired, the learned Arbitrator referred to the award of the Collector of Karachi, in respect of certain land in Deh Mehran which was also acquired in the year 1960. In respect of that land, the Collector had awarded compensation at the rate of Rs. 3 per square yard. It was pointed out to Mr. Iqbal Kazi that a reference to the map showed that this land was near the Malir Road and further it was at least 2 miles away, as the crow flies, from the land of the appellants, as observed by the learned Arbitrator.
In view of these circumstances, Mr. Iqbal Kazi very fairly conceded that he could not claim for the appellants compensation awarded by the Collector at Rs. 3 per square yard. He, however, submitted that there was evidence of genuine sales of land, near about the lands of the appellant, much before 1960 and the appellants were entitled to compensation at least at that rate. He relied upon Reference No. 405 of 1965 which pertained to sale of land at point `0' in map 2, only a short distance away from the land of the appellants. This land was acquired in the year 1953-54. The High Court in that case awarded compensation at the rate of Its. 989.66 per acre, which according to it was the then prevailing market rate. Mr. Lqbal Kazi also relied upon the judgment of the High Court in Reference No. I of 1966 which related to compensation for Survey Nos. 1.39 and 140, which also were close to the land of the appellants. In this reference, the land had been acquired in the year 1949. It was held by a learned Judge of this Court that compensation payable to the claimants should be at the rate of Rs. 2 per square yard. In view of these two decisions, I am clearly of the view that much prior to the acquisition of the land of the appellants, the market value of the land in its vicinity was Rs. 9,899 per acre. I would accordingly modify the award of the learned Arbitrator and award compensation to the appellants for their land at the said rate of Rs. 9,899 per acre.
10. The learned Arbitrator, in addition to the market value of the land, had awarded to the appellants compulsory acquisition charges at the rate of 15 %. However, the order makes no provision for the payment of such charges. As already pointed out, the order itself provides how the amount of compensation is to be worked out and makes no reference to the provisions of the Land Acquisition Act, 1897, which provides for payment of compulsory acquisition charges. When this position was pointed out to Mr. Iqbal Kazi, he very fairly conceded that he could not claim compulsory acquisition charges on behalf of the appellants. These charges are therefore not allowed to the appellants. However, they would be entitled to the interest as allowed by the learned Arbitrator.
11. The appeal is accordingly partly allowed and the award of the Arbitrator is modified to the extent indicated above. Since there has been mixed success, there will be 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.