The above captioned two appeals have been filed against the one and same judgment and decree of learned District/Reference Judge Pallandri, dated 20-5-2003, whereby the price of the land comprising Survey Nos. 921, 887 and 907 belonging to Muhammad Din and Muhammad Yaqoob and land measuring 15 Marlas comprising Survey No,885 belonging to Muhammad Ishaq and Muhammad Farooq was enhanced to Rs,2,20,000 from Rs,1,60,000 per Kanal alongwith 15% compulsory acquisition charges.
2. As both the appeals have. Arisen out of one and the same award and common questions of facts and law are involved, therefore, these 'shall be disposed of through this single judgment.
3. The relevant and necessary facts for the disposal of the instant appeals are, that land measuring one Kanal and 18 Marlas comprising Survey Nos. 921, 887 and 907 and land measuring 15 Marlas comprising Survey No,885 situated at Pallandri-Rawalpindi Road, belonging to the respondents was acquired by the AJ&K Government, for the purpose of widening of Pallandri-Rawalpindi Road.
The Collector Land Acquisition determined the market price of the lands as Rs,1,60,000 per Kanal.
Feeling aggrieved from the said order of the learned Collector Land Acquisition, the respondents, herein, filed reference before the learned District/Reference Judge Pallandri. He, after hearing the parties, enhanced the price of the lands from Rs,1,60,000 to Rs,2,20,000 per Kanal besides 15% compulsory acquisition charges. Now, these appeals have been filed against the said judgments and decrees of the learned District/Reference Judge, Pallandri.
4. Mr. Reaz Naveed Butt, the learned Additional Advocate General argued that the Notification under section 4 of the Land Acquisition Act was issued on February 25th 1994, while the Collector had determined the market value of the land, according to the price of the land prevailing in the year 1995. The learned District Judge has erroneously enhanced the price of the land according to the market value prevailing in 2000. It was further argued by him, that the reference was time- barred and the learned District Judge has failed to consider that when the reference was time- barred, then he was duty bound to dismiss the same, under section 3 of the Limitation Act. It was next contended by him, that the Notification under section 4 was issued in 1994 while the sale- deeds pertaining to the year 1991 and 1995-96 were tendered in evidence, which have no nexus, whatsoever, with the present case. He submitted that the judgments and decrees passed by the lower Court, may be set-as ide .
5. While controverting the arguments of the learned Additional Advocate General, learned counsel for the respondents, argued that the question regarding limitation of the reference can only be looked into by Referring Authority. He contended that when the learned Collector had referred the matter to the learned District/Reference Judge, then he has condoned the limitation and after the reference made by him, the learned District Judge was not competent to decide the point of limitation. He referred PLD 1998 SC AJ&K 30 in support of his contention.
6. I have heard the learned counsel for the parties, perused the record and have given my utmost muse to the respective arguments, advanced by the learned counsel for the parties.
7. The primary question requiring determination in this case was whether the reference before the learned District Judge was time-barred and he was duty bound to dismiss the time-barred reference as contemplated in section 3 of the Limitation Act?
8. It is pertinent to note that the reference was filed before the learned Collector Land Acquisition, who referred the same to the learned District Judge. It is well settled principle of law, that Reference Court could not go beyond the terms of the reference. It can only look into the questions which were specifically referred to it by the Collector. When question regarding limitation has not been considered by the Collector, then the Reference Court, could not look into the question of limitation and, the said Court had no jurisdiction to determine the question of limitation. It was entirely within the domain of the Collector, who had sent the reference. This view finds support from PLD 1998 SC 26(30) which reads as under:-- "In case reported as "Muhammad Rafique Khan v. Province of Punjab 1992 CLC 1775 the view taken by the Supreme Court of Pakistan has been followed and it has been held that the Reference Court could not go behind the reference, it can only go into the question which was specifically referred to it by the Collector. Thus, it was observed that Reference Court had no jurisdiction to determine the question of limitation; such function was within the domain of Collector who had sent the reference. The finding of the Reference Court that reference was time-barred was set aside as being without jurisdiction."
9. Now the next question emerges whether the compensation was wrongly enhanced by the Reference Court? The Reference Court, while determining the price of the land has to consider the matters provided in section 23 of the Land Acquisition Act. It is well settled principle of law that while determining the compensation, the provisions of Land Acquisition Act are to be construed liberally in favour of the public and strictly against the Government. This view finds support from NLR 1991 (Rev) 31 and MLD 1990 2158. The fundamental purpose of the Land Acquisition Act was to provide complete indemnity to the owners. This view finds support from AIR 1922 Cal. 386 (388), which reads as under:-- "Buckland J.--I agree that this appeal should be allowed and the compensation increased by the sum claimed. The intention of section 23 of the Land Acquisition Act, taken as a whole is to provide a complete indemnity to a person whose land is compulsorily acquired.
10. The compensation is a "quid pro quo" and an equivalent in terms of money for the land with a view to fully reimburse and remedy the loss for expropriation of acquired land. Whenever a land is acquired, the interest of the owners of the land is to be safeguarded. Principle laid down for determining the compensation reflect anxiety of law giver to compensate those deprived of property adequately enough so as to give `gold for gold' and not 'copper for gold'. This view finds support from PLD 1990 Lahore 472 (480), which reads as under:-- "While interpreting the provisions of law like the Land Acquisition Act or the Rules framed thereunder it is to be kept in mind that acquisition implies compulsory deprivation of property of an individual. Art. 24 of the Constitution of Islamic Republic of Pakistan, 1973 lays down that no property shall be compulsorily acquired or taken possession thereof save for public purpose and save by authority of law which provides for compensation thereof. The Land Acquisition Act, according to its preamble not only provides for the acquisition of land for public purpose but also ensure that adequate compensation is paid to the landowners. The different provisions of this enactment underline the legislature to ensure that due compensation is paid to the landowners. It need not be reiterated that compensation means equivalent in value of the land acquired, i,e, 'gold for gold'." This view further finds support from 1981 CLC 556 (562).
11. The Government should have more consideration for a citizen, whose land if not acquired compulsorily by the Government would be of worth million. This view finds support from 1985 SCMR 165.
12. It is pertinent to note that compensation for acquired property must be fair, adequate and uniform as far as possible, while weighing evidence for determining the market value of the land, liberal attitude should be taken towards the persons whose land is acquired. This view finds support from PLD 1986 Karachi 164 (174) which reads as under:-- "In the exercise of weighing the evidence for assessing the market value of the compulsorily acquired land, a liberal attitude is to be taken towards the persons whose lands have been acquired compulsorily i,e, if more than one inference can be drawn from any piece or pieces of evidence, such inference be drawn and accepted which is in favour of the claimants. Reference may be made to PLD 1961 Karachi 639".
13. It is to be noted that while determining the compensation, the status of the land acquired and its potentiality and its likelihood of development and improvement would be a criteria for determining the rate of compensation. By 'potential value' means the value on account of the use to which the land may be put in future. This view finds support from AIR 1964 Orisa 12 (14) which reads as under:-- "(6) The main controversy is as regards the estimation of the market value. Ever since the decision of the Privy Council in Narayana Gajpatiraju v. Revenue Divisional Officer, AIR 1939 PC 98, it is well settled that the potential value of the land should also be taken into consideration in fixing its market value. By, 'potential value' is meant the value on account of the uses to which the land may be put in future. The value of the land should depend on the actual use to which it was put on the date of the Notification under section 4(1) of the Land Acquisition Act. The land in question is admittedly situated on the outskirts of Berhampur town which is steadily growing. The area in which the land is situated is also developing as an industrial site. Adjacent west of the site was a timber depot. The land was purchased, not for agricultural purposes, but for the establishment of a workshop or industry. Hence the land should be valued not merely as a vegetable garden but also with reference to other uses to which it can be put in future."
14. It is also to be noted that in the instant case, the Notification under section 4 was issued on February 25th 1994, while the award was announced on September 29th 2000. Now, the question arises whether the compensation was to be assessed according to market value of the land prevailing at the time of Notification under section 4 of the Land Acquisition Act. No doubt, that section 23(1) contained that while determining the amount of compensation, the Court shall take into consideration the market value of the land on the date of publication of Notification under section 4(1) of the Land Acquisition Act. The section 4(1) of the Land Acquisition Act, only expresses an intention of the Government to acquire the land. Even after the Notification under section 4(1), the Government may or may not acquire the land, because after the issuance of Notification under section 4, the Collector has to hear the objections under section 5A of the Land Acquisition Act. For having proper perception, I would like to reproduce section 5A, which reads as under:-- "5-A. Hearing of Objections.--(1) Any person in any land which has been notified under section 4, subsection (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under subsection (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision of the (Government), together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the [Government] on the objections shall be final.
(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act."
15. Under the aforesaid provisions of law, after receiving the objections, the Collector shall provide an opportunity of hearing to the objectors and submit the case for the decision to the Government with his own recommendations on the objections. Under section 6 of the Land Acquisition Act, the Government after considering the report made under section 5-A, declare that the land.Shall be awarded or not. Therefore, it would have been more appropriate if the value of the land would have been determined on the basis of market value of the land on the date of declaration under section 6 of the Land Acquisition Act. The same like proposition arose before the Federal Shariat Court and it was held by .The said Court that basic and fundamental date for determination of compensation of the land would be the date on which a declaration under section 6 of the Land Acquisition Act was made by the Government. As such was held by the Federal Shariat Court in PLD 1992 FSC 398 (407), which is as under:--
22. "In the light of the above on the issue of fixation it may be concluded that the basic and fundamental date for fixation of the compensation for the land acquisitioned in the public interest, is the market value on the date of actual acquisition of land. A notification issued under section 4 only expresses an intention of the Government that it may or may not acquire the land.
Furthermore, section 4 of the Act, confers certain powers on the Government to enter on the land and survey which to some extent resembles the concept of Khiyar Ruyat {{URDU TEXT}} the option of sight by the intended purchaser of the thing intended to be purchased, which may, perhaps be applicable in the matter of acquisition of land by the Government or other Authority. This cannot be said to be the date of actual acquisition, which is further denoted by ensuing provisions of the Act.
That, is to say, section 5 makes a provision for making claim by the owner, for damaging the property during survey etc, by virtue of section 4. Section 5-A provides for filing objections against desired acquisition of the land, and section 6 provides for disposal of those objections, one way or the other. If the objections are rejected further proceedings of acquisition are taken up which include the awarding of compensation, so much so that section 16 of the Act provides for taking possession f the land. We are, therefore, of the view that the date of the issue of the notification under section 4 is not crucial date but it is the date of actual acquisition which follows the step taken in the matter of acquisition after disposal of objections under section 6. Of the Act, which is required to be substituted in section 23(1) of the Act."
16. In view of the aforesaid judgment of the FSC, section 23(1) was amended as discussed in the earlier part of this judgment.
17. In the instant case, the Collector Land Acquisition Poonch on May 20th 1995 assessed the market value of the land in dispute as Rs,9,000 per Marla and in this way, the market value of one Kanal was Rs,1,80,000. While awarding, the compensation the Collector instead of Rs,1,80,000 awarded the compensation to the respondents at the rate of Rs,1,60,000 per Kanal and there was no justification for awarding this amount of compensation. The learned District Judge has rightly enhanced the compensation to Rs,2,20,000 per Kanal, keeping in view the potentiality and its likelihood for development and improvement, a criteria for determining the rate of compensation, therefore, it could not be said that the learned District Judge has wrongly enhanced the compensation of the land. The upshot of the above discussion is that, finding no substance in these appeals, these are hereby dismissed. A copy of the judgment shall be placed on each file.