EnglishFrenchPortugueseRussianUrdu

P L D 1967 Karachi 61

 

Before Inamullah and Wahiduddin Ahmed, JJ

 

MUHAMMAD YAKOOB ALI MOHAMED -Appellant

 

versus

 

ESTATE OFFICER, GOVERNMENT OF PAKISTAN, KARACHI‑Respondent

 

First Appeals Nos. 145 and 173 of 1960, decided on 20th April 1965.

 

 

Shah Jamil Alam (in I. A. No. 145 of 1960) for Appellant.

 

Dingomal (in I. A. No. 173 of 1960) for Appellant.

 

Dingomal (in I. A. 145 of 1.960) for Respondent.

 

Shah Jamil Alam (in I. A. 173 of 1960) for Respondent.

 

Dates of hearing: 25th, 26th February, 2nd and 3rd March 1965.

 

JUDGMENT

 

WAHIDUDDIN AHMED, J.‑This judgment will dispose 4 First Appeal No. 145/ 1960 and cross First Appeal No. 173/1960, which arise from an award dated 13th September 1960. in land acquisition proceedings. By this award the learned Arbit rator awarded a total sum of Rs. 24,888‑8‑0 to Muhammad Yakoob Ali Muhammad Memon, the owner of the property is dispute as compensation.

 

2. The dispute between the parties is about the acquisition of plot No. 217 measuring 1,595 sq. yards Garden West Quarter, which was requisitioned by the Government of Pakistan on 28th June 1947, under the Sind (Requisition of Land) Act, 1947. It was later on acquired on 31st March 1953. The matter was referred under section 4 of the said Act to Mr. S. Ashhad Ali, Official Assignee of this Court as Arbitrator to determine the compensation payable to the owner of the plot in question.

 

3. The owner of the property raised certain legal objections to the validity of the requisitioning and acquisition but the learned Arbitrator did not express any view on them because he is of the opinion that these points cannot be agitated in arbitra tion proceedings. On merits, the owner claimed Rs. 31,900 (Rupees thirty‑one thousand nine hundred) as compensation at the rate of Rs. 20 (Rupees twenty) per square yard. He further claimed interest at six per cent. on the total value from the date of acquisition till the date of payment and Rs. 1,635 (Rupees one thousand six hundred and thirty‑five) as rent or mesne profits from 1st July 1947, till 30th March 1953, at six per cent. on the valuation of the property. In addition to this he also claimed fifteen per cent. on the valuation of the property in lieu of compulsory acquisition.

 

4. The Government contested the rate at which the com pensation was claimed and offered only Rs. 8 (Rupees eight) per square yard as compensation. Their case is that at the time of requisition the locality in which the plot is situated was undeve loped. The plot was a vacant site and yielding no profit to the owner. They, however, offered rent at three per cent. per annum for the period of requisition.

 

5. On evidence produced by the parties the learned Arbit rator came to the conclusion that the locality in which the plot in question is situated was fully developed at the time of its requisitioning. He further found that the plot is on the main thoroughfare known as Lawrence Road having roads on the West and East on the basis of the plan (Exh. G/5) of the locality. He further found that there were bungalows constructed at the time of requisition round about the plot in dispute. The situation of the plot was further found to be very good, in view of the fact that it was situated in the vicinity of Zoological Garden known as Gandhi Garden and the Tram Terminus and the shop ping centre very near to that place. According to the learned Arbitrator the plot in question was art excellent plot and possessed all the advantages and facilities that can possibly be thought of in a residential area. He accepted the plea of the Government that at the time of requisitioning the plot in question was not yielding any income to the owner. He held that the owner purchased the plot in dispute in 1945, but there was no data available at what rate or price it was purchased. He, however, relied on the extract of sale of plot No. 213, filed in the arbitra tion proceedings for plot No. 203, which proved that lots Nos. 213 and 236 were sold on 21st September 1946, by a single sale‑deed and the average price for both these plots was in the range of Rs. 10‑8‑0 per square yard. The evidence further proved that plot No. 236 is on the main Lawrence Road and possesses the same facilities and advantages as the plot in dispute, while plot . No. 213 is about two plots away on the North of Lawrence Road. On this evidence, the learned Arbitrator held that the value of the plot in September 1946, would be round about Rs. 10‑8‑0 per square yard. But since the market price was to be determined on the basis of the value of the plot on the date of requisitioning namely June 1947, the leaned Arbitrator on consideration of further evidence held that the price in the vicinity of the plot in dispute was increased by Rs. 1‑8‑0 per square yard within a period of four months. In view of this evidence, the learned Arbitrator assessed the market value of the plot in dispute at Rs. 13‑0‑0 per square yard. The learned Arbitrator disallowed the claim of the owner for 15 % over and above the value of the plot in terms of provision of section 23(2) of the Land Acquisition Act, 1.894, because under the relevant Act this provision of law was not applicable. He, however, accepted the claim of the owner at six per cent. per annum for the period of requisitioning from 28th June 1947, till 30th March 1953. But rejected the claim of the interest on the ground that this question was not referred to him and he was not competent to award any interest under the enactment under which the compen sation was to be determined. It is, on these findings that the learned Arbitrator awarded Rs. 24,888‑8‑0 to the owner. as total compensation for the plot irk dispute.

 

6. In First Appeal No. 145/60, filed by the Government the award is attacked on two grounds. Firstly, that the Arbitrator has not fixed the market value on any legal basis or proper appre ciation of the evidence; and, secondly, that the Arbitrator had no jurisdiction to award rent as compensation from the date of requisition.

 

In support of the first objection Shah Jamil Alam, the learned counsel for the Government has referred us to number of sales that took place in the vicinity during the period of 7th February 1947, till 30th July 1947. It is true that the price of plots Nos. 343, 110, 253/6/1 and 367. (vide Exhs. G‑1 to G‑6), which were the subject‑matter of these sales ranges from Re. 1‑0‑0 per square yard to Rs. 6-8‑0 per square yard, but this evidence cannot be of much help to the Govern meat for the reasons given by the Arbitrator. The sale of plot No. 110 was rightly excluded as its location cannot be verified. The‑ evidence shows that plot No. 253/6/1 is a big plot consisting of about 40,000 square yards extending right upto the Lyari River Bank, which is not sub‑divided and has no internal roads. It is on the bank of the Lyari River, an undeve loped area. It is of much inferior quality in every respect and the low price of Re. 1‑0‑0 per square yard fetched for its sale in 1947, cannot be of much assistance for determining the value of the plot in question. Similarly, plots Nos. 343 and 367 are far away from the plot in question and as well as from the main thoroughfare, Lawrence Road and the Arbitrator was right in holding that they are much inferior in quality to the plot in dispute. In these circumstances, the learned Arbitrator was perfectly justified in rejecting the evidence of the Government on the market value. We find no force in the contention of the Government that the Arbitrator has determined the market value without proper appreciation of evidence of the parties or that it is not based or, any reliable evidence. In the circumstances of the present case the learned Arbitrator was justified in relying on the evidence produced by tile owner. We would, therefore, repel the appellant’s contention and hold that the market value of the land was properly fixed at Rs. 13 (Rupees thirteen) per square yard.

 

7. The second objection that the learned Arbitrator had no jurisdiction to award rent as compensation from the date of requisition need not detain us. In view of the amendment made in the Sind (Requisition of Land) Act, 1947, by additioning section 3‑A, which provides for payment of compensation at fair rent in respect of requisitioned property, Shah Jamil Alam had to concede that the Arbitrator properly assessed the fair rent at six percent per annum in accordance with the principles laid down in Karachi Rent Restriction Act, 1952. This contention, therefore, needs no further consideration and is repelled.

 

8. This brings us to the cross‑Appeal No. 173/1960, filed icy the owner of the plot in dispute. Before discussing this appeal on merits we propose to dispose of a preliminary objection raised on behalf of the Government that it was time-barred. Shah Jamil Alam, the learned counsel for the Government contended that the award was announced on 13th September 1960, and the appeal was filed on 22nd October 1960. Under rule 7, framed by the Chief Commissioner of Karachi in exercise of the powers conferred by subsections (2) and (3) of section (4) of the Sand (Requisition of Land) Act, 1947 (Sind Act, XLVI of 1947), as in force in the Capital of Federation, read with the Government of Pakistan, Ministry of Interior, Notification No. 3/4‑52‑Kar. 11, dated the 21st October 1952, an appeal ought to have been presented within thirty days of the date of the award. But it was presented much after that time and was late by about nine days. In reply Mr. Dingomal, the learned counsel for the respondent/owner contended that the section 29 of the Limitation Act was applicable to the present case, it provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as arid to the extent to which, they ire not expressly excluded by such special or local law. In support of his contention the learned counsel relied on a decision of the Supreme Court in Tahir Ali v. Chief Judge, Karachi small Causes Court (P L D 1963 S C 147). In that case the ‘Supreme Court “in view of section 29 referred to above applied section 12(2) of the Limitation Act to a revision application under Karachi Rent Restriction Act”. It is not disputed that the Sind (Requisition of Land) Act is a special Act and not governed by the period prescribed in the First Schedule of the Limitation Act. Mr. Dingomal contended that under section 12 of the Limitation Act, the appellant is ‘entitled to exclude, in computing the period of limitation fur appeal, the time required for obtaining the copy of the judgment.

 

9. In support of his contention that the time for the appeal would run from the date of the knowledge of the order, he further relied on the Secretary of State for India in Council v. Gopisetti Narayanaswami Naidu (I L R 34 Mad. 151), Bulchand Keshavdas v. Commissioner of Income‑tax, Bombay ((1930) 128 I C 678) and Municipality of Hyderabad v: Allahdino ((1931) 134 I C 369). It was held in these cases that even in cases in which the starting point of limitation is “the date of the decision ouch date is the date when the decision is passed and it cannot he passed unless it is in some way pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of proving what it contains”.

 

10. In our opinion both the contentions are well founded. Shah Jamil Alam had to concede that the appeal is within time in view of section 29 of the Limitation Act. Otherwise too it stands to reason that an order of the nature under consideration cannot be treated as one within the meaning of the relevant rules unless it is pronounced or published in a manner so as to come within the knowledge of an aggrieved party. This seems to us to be a reasonable interpretation of words “from the date of the order”. We would, therefore, repel the contention and hold that the appeal is within time.

 

11. On merits Mr. Dingomal, the learned counsel for the appellant attacked the award on four‑fold grounds. Firstly, that the market rate, made as the basis of compensation, is not properly reached. Secondly. that there is a clerical error and mathematical mistake in the calculation of the rent awarded the mistake is to the extent of Rs. 3,000 (Rupees three thousand) which should be rectified. Thirdly, that the learned Arbitrator committed an error in disallowing interest from the date of acquisition till its payment and fourthly, that the provision of section 4(3) of the Sind (Requisition of Land) Act, 1947, is ultra vires to the provisions of section 299 of the Government off India Act, and the acquisition is bad in law.

 

12. Sc far as the market rate of the land, on the basis of which the compensation was awarded, is concerned the learned counsel did not press it. In respect of the second objection that there is a clerical mistake in the award to the extent of Rs. 3,000 (Rupees three thousand), it was conceded on behalf of the Government that the compensation for rent should have been Rs. 7,153‑8‑0 (Rupees seven thousand one hundred fifty three and eight annas) instead of Rs. 4,153‑8‑0 (Rupees four thousand one hundred fifty three and eight annas). Undoubt edly, the learned Arbitrator committed a mistake in calculating the amount due to tire owner as rent. We would hold that the award to the extent of Rs. 3,000 (Rupees three thousand) is based on mis‑calculation and the amount of rent awarded as compensation should have been calculated at Rs. 7,153‑8‑0 (Rupees seven thousand one hundred fifty‑three and eight annas). The appeal is allowed to this extent.

 

13. We will now take up the point whether the learned Arbitrator was competent and should have awarded interest to the owner on the compensation awarded to him from the date of acquisition till the date of its payment. Mr. Dingomal contended that the amount of compensation awarded should carry a reasonable interest from the date of acquisition till its payment, because he had already been held to be entitled to claim com pensation for the period of requisition. According to the learned counsel in equity he is also entitled to interest for the period during which the amount of compensation is nut paid to him on the ground that the property in dispute had been in possession of the Government and the appellant should be adequately compensated for the loss of possession as owner of the property. On the other hand, Shah Jamil Alam, the learned counsel for the Government contended that the Sind (Requisition of Land) Act, 1947, has not made any provision for the payment of interest and deliberately omitted section 23(2) of the land Acquisition Act by providing that section 23(1) of the Land Acquisition Act would only be applicable. This, according to the learned counsel leads to an inevitable inference that sections 28 and 34 of the Land Acquisition Act which touch the question of awarding interest have no application to the proceedings under the Sind (Requisition of Land) Act, 1947. We have carefully considered the arguments advanced by both the parties. In our opinion, the contention of Mr. Dingomal is not without substance. It cannot be denied that from the time of acquisition of the land in. such cases the owner would not only be deprived of the right to receive rent as compensation for the acquired property but would also have to wait for considerable time before the amount of compensation is determined and paid. The question, therefore, for determination is whether in such cases the Legislature intended that the owner of the property, after the plot was acquired, should be deprived of the loss suffered by him in respect of the income of the property. The contention of Shah Jamil Alam that section 22(3) has been excluded from the purview of the Sind (Requisition of Land) Act, 1947, and as a result sections 28 and 34 of the Land Acquisition Act have also been excluded would lead to the conclusion that the Legislature intended that the Arbitrator should not award any interest from the date of acquisition till the date of payment of compensation, has not impressed us. In equity any party, who has suffered any loss on account of any act of the other party is entitled to compensation. In Inglewood Pulp & Paper Co. Ltd. v. New Brunswick Electric Power Commissioner (A I R 1928 P C 287), the Judicial Com mittee has fully considered this aspect of the question. In their Lordships opinion upon the expropriation of land, under statu tory power, whether for the purpose of private gain or of good to the public at large, the owner is entitled to interest upon tit principal sum awarded from the date when possession was taken, unless the statute clearly shows a contrary intention. In this connection their Lordships further observed that “But for all this, the owner is deprived of his property in this case as much as in the other arid the rule has long been accepted in the inter pretation of statutes that they are not to be held to deprive individuals of property without compensation unless the intention to do so is made quite clear. The statute in the present case contains nothing which indicates such an intention. The right to receive the interest takes place of the right to retain possession and is within the rule”.

 

14. Similarly in Swift & Co. v. Board of Trade ((1925) A C 520), it was held by the House of Lords that on a contract for the sale and purchase of land it is the practice of the Court of Chancery to require the purchaser to pay interest on his purchase money from tire date when he took, or might safely have taken possession of the land. In coming to this conclusion the view of Viscount Cave L. C. in Birch v. Joy ((1852) 3 H L C 565), was followed. It was further observed that this practice rests upon the view that the act of taking possession is an implied agreement to pay interest and was applicable to the cases of compulsory purchase under the Lands Clauses Consolidation Act, 1845.

 

15. In the light of the above discussion, the rule that emerges is that the claim of interest is granted on the genera principle that when the owner of the immovable property lose its possession in equity he is entitled to be compensated in the shape of interest. In lieu of the loss of his right to retain possession of the property in our opinion, the mere fact that section 23(2) was omitted from the Sind (Requisition of Land Act 1947, would not lead to the inference that the Legislature intended that no interest should be awarded in cases under the shove‑mentioned enactment. On the other hand, it can be legitimately argued that the Legislature did not want to tie the Land of the Arbitrator to award interest at six per cent as pro vided under sections 28 and 34 of the Land Acquisition Act, and for this reason left this question to the discretion of the Arbit rator. The argument that the fact that only the words that “there shall be paid compensation, the amount of which shall be determined in the manner, and in accordance with the prin ciples hereinafter set out” are used is section 4(1) of the enactment, rules out the idea of awarding compensation in the shape of interest, has not impressed us. In the first place, it does not refer to the loss suffered by an owner for the intervening periods Secondly, it does not provide that interest ought not to be awarded in any circumstances. Considering that a subject is deprived of his property by compulsory acquisition, we would take a mare liberal view, and hold that the general rule of awarding compensation in his respect hays not been excluded by the provisions under consideration.

 

16. Apart from this we are further of the view that the claim of the appellant for interest can also be justified under the provisions of tire Interest Act XXXII of 1939. The proviso to section 1 of this enactment expressly saves the power of the Courts, to allow interest in all cases in which it was payable by law at the time when the above enactment came into force. This pain was considered by the judicial Committee in Bengal Nagpur Rly: Co. v. Ruttanji Ramji ((1936‑37) 65 I A 65). In this connection the Judicial Committee observed that—

 

“This proviso applies to cases in which the Court of equity exercises jurisdiction to allow interest.”

 

We have no doubt that the right to receive compensation in lie of possession of immovable property taken away by compul sory acquisition is an equitable right and since Courts have beer awarding interest on equitable grounds for such loss before the above; mentioned enactment came into force, the Arbitrator was fully competent to award interest in lieu of loss of possession from the date of Acquisition till the payment of compensation Reference in this connection may be made to certain decision of Indian Jurisdiction in Surjan Singh v. The East Punjab Govern ment (A I R 1957 Pb. 265), Satinder Singh v. Umrao Singh (A I R 1961 S C 908 at p. 915) and The All India Tea & Trading Co. v. Sub‑Divisional Officer (A I R 1962 Assam 20). It leas held by the Indian Courts in these cases drat “where the lands are acquired under the Land Acquisition Act, and the claimants are awarded compensation, the claimants are entitled to interest ore the amount of the compensation for the period between‑the taking of the possession of the land by the State and the payment of compensation by it to the claimants. The right to receive the interest takes the place of the right to retain possession and the application of this rule is not intended to be concluded by the Punjab Act; XLVIII of 1948, and the mere fact that section 5(3) of the Punjab Act makes section 23(1) of the Land Acquisition Act of 1894 applicable, it cannot reasonably be inferred Oat the Act intends to exclude the application of this general rule in the matter of the payment of interest”

 

17. We will crow proof to consider the last contention of the appellant that section 4 of the Sind (Requisition of Land) Act, 1947 is ultra vices of the provisions of section 299 of the Government of India Act, which was in force at the material time. Mr. Dorab Patel, the learned counsel for some of the appellants in the connected cases, Contended that the above mentioned constitutional provision provided that no person shall be deprived of his property unless the law provides for the payment of compensation for the property acquired. The learned counsel argued that such compensation should be the acquivalent of the property at the time of acquisition. Hut there is a departure in that respect in section 4 of the Sind (Requisition of Land) Act, 1947, which provides that the compensation would be paid not on the basis of the market value of the acquired land on the date of acquisition, but on the basis of its market value on the date of requisition. He, therefore, urged that the compensation for the acquired land on the basis of its market value on the date of requisition cannot be considered to be an adequate compensation within the meaning of section 299 of the Government of India Act. In this connection, the learned counsel referred us to the observation of the Supreme Court Jibendra Kishore Achharyya v. Province of East Pakistan (P L D 1957 S C 9). In that judgment, their Lordships quoted with approval the following passage from Nichols “Eminent Domain” :‑

 

“`Compensation’ as used in the constitutional provision as a limitation upon the power of eminent domain, implies a full and complete equivalent (usually monetary) for the loss sustained by the owner whose land has been taken or damaged.

 

Many of the State Constitutions require that the compensa tion shall be `Just’, `reasonable’ or ‘adequate’, but these words are more epithets rather than qualifications and add nothing to the meaning. The phrase ‘just compensation’ means the value of the land taken and the damage, if any, to land not taken. More than this it does not imply. The adjective `just’ only emphasises what would be true if omitted‑namely, that the compensation should be the equivalent of the property.”

 

After quoting these passages, their Lordships further observed that‑‑

 

“This being the meaning of `compensation’ it has to be admitted that the Act in question is essentially a confiscatory enactment because taking a man’s property by paying him, say twice the annual net income of that property, cannot possibly be held to be an acquisition for compensation.”

 

18. The learned counsel further referred us to a decision of this Court in M. Salimullah v. Province of West Pakistan (P L D 1960 Lah. 450), in which it was held that clause 10 of the Schedule to Punjab Town Improvement Act, 1922, by introducing a new definition of the market value has the effect of reducing it invariably by superseding the advantage of situation, and has made the owners to accept payment of 1/10th of the real market value. In that case on this ground, clause 10 of the Schedule of the said enactment was held to be ultra vices of the provisions of section 299 of the Government of India Act. Mr. Dorab Fatal contended that it contemplated for the payment of full compensation to the owner of the acquired property, and since in the present case section 4 has taken away this valuable right, it is void. Had this been the only argument to be taken into consideration there would have been no doubt that on this reasoning, the principles for determining the compensation in section 4 referred to above are void. But the Constituent Assembly saved the impugned legislation from attack by the Validation of Laws Act, 1956. It not only amended section 299, Government of India Act, but made an express provision that any enactment violating the principles laid down in subsection (2) would not be called in question if they were passed within five years of the Establishment of Pakistan. For proper appreciation, it will be useful to reproduce subsection 3(a) of this provision of law, which is in the following terms:‑

 

“Nothing in subsection 2 shall be construed to invalidate

 

(a) any provision in any law of the kind referred to in that subsection which purports to fix the amount of compensation or to specify the principles on which and the manner in which compensation is to be determined and given on the ground that it contravenes the provisions of that subsection or that compensation is not provided for or is inadequate :

 

Provided that such law has been made or passed within a period of five years next after the establishment of the Federation.”

 

19. The most important question, therefore, for considera tion is whether the Sind (Requisition of Land) Act, 1947 can be considered to be a law which has been made or passed within a period of five years next after the establishment of the Federation. This enactment has a history behind it. It was originally passed by the Sind Legislature in the year 1947, and was immediately applied to the city of Karachi. On 23rd July, 1948, Karachi became capital of the Federation and was no longer part of the Province of Sind. For this purpose by Governor‑General Order No. 14, dated 22nd July, 1948, section 290‑A was added to the Government of India Act. Under this Constitutional provision, the Governor‑General by G,‑G. Order No. 15, dated 23rd July, 1948, demarcated Karachi as the Capital of the Federation. By clause (6) provision was made in respect of the laws which would be applicable to the Capital of the Federation. Clause (6) of the aforesaid order reads as under:‑

 

“Unless and until other provision is duly made, all enact ments and laws, and all notifications, orders, schemes, rules, forms or bye‑laws issued made or prescribed thereunder, which immediately before the date appointed under Article 3 are in force in, or prescribed for, any of the areas comprised in Karachi shall continue to be in force and shall have effect in Karachi.”

 

It was under these circumstances that the Sind (Requisition of Land) Act, 1947 continued to remain in force in Karachi. In Muhammad Ali & Sons v. Chief Commissioner of Karachi (P L D 1957 Kar. 320) a Division Bench of this Court, to which one of us was a party, considered the scope of section 290-A of the Government of India Act, 1935. It was held in that case that the power conferred on the Governor‑General under section 290‑A of the Government of India Act, 1915, in respect of making provisions with regard to the laws which were to be in force .in the Federal Area were undoubtedly legislative,‑ and the Governor‑General when acting under this provision performed the duty of a Legislature within the limit laid down therein. It cannot, therefore, be doubted that the Governor‑General Order No. 15 of 1948, was a legislative enactment and clause (6) by which the Sind (Requisition of Land) Act, 1947 was to continue to be applicable to Karachi was also in the nature of legislative enactment: It is, therefore, quite clear that the Sind (Requisition of Land) Act, 1947, so far as its application to Karachi after 23rd July, 1948 is concerned, came into force by virtue of clause (6) of the above‑mentioned Governor‑General Order. It would, therefore be one of those provisions of law which were made within five years of the establishment of the Federation of Pakistan, and would be saved under subsection (4‑A) of section 299 of the Government of India Act, 1935.

 

20. It may be further mentioned that the Sind (Requisition of Land) Act, 1947 was amended in 1948 by the Sind Legislature by Act 10 of 1948. By this amendment section 3‑A was added to it. The fact that it was amended in 1948 would further show that it is one of those Acts which were made or at least amended within five years of the establishment of the Federation of Pakistan. The validity of this enactment was also upheld by the Supreme Court in Pakistan v. Muhammad Ali and others (PLD 1960SC60), In this connection, ‑Cornelius, J., as he then was, observed at page 71 of the report as under:‑‑

 

“It is relevant to note here that by the Validation of Laws Act, 1956, Sec. 299 of the Govt. of India Act, 1935, was amended by a section which replaced a portion of sub section (4‑A) by directing that certain words `shall be substituted and shall be deemed always to have been substituted’ for the original words in that subsection. That subsection had itself been added in the year 1951. The relevant portion of the amended, subsection (4‑A) for the purposes of this case is the following:‑

 

‘Nothing in subsection (2) shall be construed to invali date‑

 

“(a) any provision in any Law of the kind referred to in that subsection which purports to fix the amount of compensation or to specify the principles on which and the manner in which compensation is to be determined and given on the ground that it contravenes the provisions of that subsection or that compensation is not provided for or is inadequate:

 

Provided that such law has been made or passed within a period of five years next after the establishment of the Federation.”‘

 

The amending law of 1948 clearly satisfied the condition of having been passed within five years after the establishment of the Federation of Pakistan. On the 23rd March, 1956, the Constituent Assembly enacted the late Constitution of Pakistan, and included in chapter of `Fundamental Rights’ a provision that no property shall be compulsorily acquired or taken possession of‑save by the authority of law which provides for compensation therefore’. This provision is found in subsection (2) of Article 15 of the Late Constitution, but subsection (3) by the use of the following words viz.,

 

`nothing in this Article shall affect the validity of any existing Law’.

 

has the effect of saving taws which were in existence on the 22nd. March, 1956, from the invalidating effect of subsection t2) of the same Article. Neither the amendment in section 299 of the Government of India Act, 1935, nor Article 15 of the late Constitution of Pakistan was in existence at the time when the judgment in‑ the case of Miran Khan v. Mehrban Hussain was delivered. The action taken by the Rent Controller which forms the subject of the present appeal, relates to the last few days of 1955, and decided on the 7th January, 1957. The effect of the saving provision in Article 15 of the late Constitution was to bring the case on the point of the validity of the law in question within, the provisions of section 299 of the Government of India Act, as it stood on the date when the impunged action was takers. As has been seen, the amendment of 1956 in section 299 was expressed to take effect from the time when subsection 4(a) of that section was first inserted, and that took place in the year 1951. Consequently, the duty of the learned Judges in the High Court in deciding the present case, was to examine it in the light of the amended subsection (4‑A) of section 299 of the Govern ment of India Act. In proceeding on the basis of the judgment of Miran Khan v. d1ehrban Hussain where the question of the change in the law did not arise for consideration, they would appear to have fallen into error. For, by the amendment in section 299, it was made clear that a law such as the Sind (Requisition of Land) Act, 1947, as it stood after the amendment of 1948, could not be challenged for vires on the ground that compensation is not provided for’.”

 

In view of this authoritative announcement it is quite clear that the vires of the Sind (Requisition of Land) Act, cannot ha challenged on the ground that it does not provide proper compensation as contemplated in section 299 of the Government of India Act. We would, therefore, repel the contention of the learned counsel for the appellant in this respect.

 

21. In the result the appeal of the Government is dismissed. The cross‑appeal of the owner is partially accepted. His appeal is allowed to the extent of Rs. 3,000 (Rupees three thousand) which was not included in the compensation awarded to him on account of a mistake in calculation: His appeal is further allowed in respect of the claim of interest. In view of our finding he will be allowed interest at four per cent per annum on the amount of compensation from the date of acquisition till the date of its payment. In the special circumstances of this case the parties in both the appeals would bear their own costs.

 

K. B. A.

 

Appeal partly accepted.

 

Print Friendly, PDF & Email