2000 Y L R 1185
[Karachi]
Before Zahid Kurban Alavi, J
Haji MUHAMMAD YUNUS‑‑‑Appellant
versus
LAND ACQUISITION OFFICER
AND ASSISTANT COMMISSIONER,
SHAHDADPUR‑‑‑Respondent
First Appeals Nos.22, 23, 24 and 25 of 1992, decided on 6th November, 1999.
Vijayee Kumar for Appellant.
Mian Khan Malik Addl. A.‑G. for the State‑.
Ghulam Rasool Qureshi: Amicus curiae.
Date of hearing: 27th September, 1999.
JUDGMENT
By this common judgment, I intend to dispose of the above noted four appeals as they arise out of common judgment and law facts involved are also the same.
Briefly stated the case of the appellants is that the land in question was notified with the land of others in all 14‑21 acres for acquisition under sections 4 and 6 of the Land Acquisition Act vide notification published in Sindh Gazette dated 2‑7‑1989 and 12‑10‑1989. In Appeal No.25 of 1992 the appellant has further stated that he had purchased the land in question for Rs. 83,000 by registered sale‑deed from M/s. Yousuf and Abdul Shakoor on [0‑10‑1988 for institution of his own factory. The said property has effected in the Revenue Record of rights in his name. He had further contended that he spent huge amount over the leveling of the land and filling ditches and has constructed boundary walls and for construction of go down rooms etc. thereon. He incurred more amount of Rs. 1,50,000 so also he incurred more amount on registration etc. It is further the case of the appellant that the said land is adjacent to Tando Adam Town and is on the Highway. The appellant asserted that he was served with a notice dated 18‑11‑1990 issued by the District Officer Sindh Small Industries Corporation, Sanghar advising him to vacate the illegal encroachment and failing which he was threatened for demolishing of construction which actually was raised by him on his plot in question. The said officer claimed the land of the appellant to be the land of said corporation. The notice was replied to by the appellant on 2‑10‑1990 explaining that he was lawful owner of the land in dispute and as such he was neither encroacher nor he had to vacate any portion of the land. Thereafter, the appellant filed a suit in the Court of Civil Judge, Tando Adam for declaration and permanent injunction against the respondents and obtained status quo. During the pendency of the said suit the appellant came to know that the said land has been acquired by the respondent as such he withdrew his suit and rushed to respondent and approached them but nobody listened to him. Ultimately the fact of the acquisition of the land in question as also the passing of the award was disclosed to the appellant by the office of the respondent on 17‑3‑1991 and on the very day the appellant applied for grant of copy of the award which was delivered to him on 7‑5‑1991 which reveals that the award was passed on 23‑1‑1990 at Shahdadpur by the respondent‑ wherein the price has been determined at Rs. 1,12,000 per acre plus 15 compulsory acquisition charges. The appellant has not received even a single penny from the Land Acquisition Officer as compensation of the land in dispute. According to the appellant the Land Acquisition Officer has not properly assessed the price of the land, hence the appellant claims the valuation of the land sold for Rs. 3,95,000 in the year 1987, 3‑16 acres were sold for Rs.4,88,000 in the year 1988, 11 ghuntas were sold for Rs.87,000 by registered sale‑deed and in this respect he referred some documents produced by the appellant. The appellant further contended that the respondent has condemned him unheard and as such no opportunity of being heard was provided to him to file objections or to take part in the acquisition proceedings as such the award was passed behind his back and is against the principle of natural justice, as inadequate amount has been assessed by the respondent. The appellant further stressed that the respondent has ignored the trend of rapid rise of prices of the lands situated in Tando Adam and its surrounding areas. The respondents have failed to assess compensation of the construction of boundary walls etc. over the land. The appellants claimed Rs. 5,00,000 per acre as compensation be awarded to him.
In Appeal No.24 of 1992, appellant has stated that appellants were the owners of an agricultural land bearing S. Nos.459/4, 465/1.2 total area 9‑09 acres of Deh Tando Adam, within the local limits of Municipal Committee, Tando Adam, District Sanghar.
That the appellants submitted their objections under section 9 of the said Act on 30‑12‑1989 and claimed price of the land at Rs. 5,00,000 (Rs. five lacs only) per acre on the basis of the market price prevailing in the vicinity in the same Deb, as the same land is situated on Tando Adam, Hyderabad Road, and is adjacent rather within Tando Adam Town, which were acquired into under section 11 of the Land Acquisition Act, 1894.
That an Award had been made on 23‑1‑1990 at Shahdadpur by the learned Assistant Commissioner and Land Acquisition Officer, Shahdadpur, wherein price had been determined at Rs. 1,12,000 per acre. This fact of passing of the award was concealed, though the appellants had visited the office of the said L.A.O. several times in this regard, ultimately on or about 24‑1‑1991 the appellants learnt about the passing of the said award from the office of the said L.A.O., Shahdadpur, the appellants then made prayer for grant of true copy of the award, the appellants were informed that they should approach to the A.C. and L.A.O., Tando Adam (newly‑created sub‑division Tando Adam). The appellants applied for grant of true copy of the Award on 16‑2 1991, and the same was delivered to him on 19‑2‑1991, which revealed that the award was passed on 23‑1‑1990 at Shahdadpur by the A.C. and L.A.O., Shahdadpur, wherein the price has been determined at Rs. 1,12,000 per acre + 15 % compulsory acquisition charges, the total amount of the said land of the appellants acquired became Rs. 5,94,090 a part of which, the appellants each have received under protest.
In Appeal No 23 of 1992, appellant has stated that he was the owner of the land bearing S. No.459/4 area 9/1‑2 ghuntas 9346 sq. ft. and S. No.465/11 area half ghunta 548 sq. ft. total area 10894 sq. ft. situated in Deh Tando Adam at Tando Adam.
That the said land was purchased by the appellant, i.e. 10 ghuntas 10894 sq. ft. was purchased by him under registered sale -deed for Rs. 87,000 on 10‑10‑1988 for installation his own factory, mutation of the said property was also effected in the Revenue Record of rights in his name, as such the appellant became full owner of the said land.
That the appellant thereafter, filled khadas, levelling the land and raising boundary walls and construction of rooms and godown etc. incurred Rs. 1,50,000 more thereon. He also incurred more amount on registration broker fees etc.
That the appellant was served with the notice dated 18‑11‑1990 issued by the District Officer Sindh Small Industries Corporation, Sanghar, advising him to vacate the illegal encroachment, and failing which he was threatening for the demolish of construction which actually was raised, by him on the plot in question. The said. officer claimed the land of the appellant to be the land of the Corporation. The notice was replied by the counsel of the appellant on 2‑12‑1990 explaining therein that he was lawful owner of the land in as such neither he was encroacher nor he had to vacate any portion of the land. Thereafter, the appellant filed a Civil Suit in the Court of the Civil Judge Tando Adam, for declaration and permanent injunction against the said District Officer and obtained status quo order, during pendency of the said suit the appellant came to know that the said land had been acquired by the respondent for the establishment of Small Industries Estate for Power Loom Section at Tando Adam, as such he withdrew his suit and rushed to the office of the respondent to ascertain the truth, but nobody listen to him. Ultimately, the fact of the acquisition of the land in question, so also passing of the award was disclosed to the appellant by the office of the respondent orx 17‑3‑1991 and on the very day the appellant applied for grant of true copy of the Award, which was delivered to him on 7‑5‑1991, which reveals that the award was passed on 23‑1‑1990 at Shahdadpur by the respondent wherein the price had been determined at Rs. 1,12,000 per acre plus 15 % compulsory acquisition charges. The appellant has not received even a single pie from the respondent towards compensation of the land in question. According to the appellant the L.A.O. has not properly assessed the price of the land, the price of which as per market value was approximately Rs. 5,00,000 per acre, the respondent was under obligation to assesses the valuation of the land, as per market value, so also to grant 15 compulsory acquisition charges plus 15 % more Add compulsory acquisition charges under section 28‑A of the L.A. Act, and also 6% interest as provided under the Act.
In Appeal No.22 of 1992, the appellant has stated that he was the owner of the land bearing S. No.466/3 measuring 2‑35 acres and S. No.465 area 0‑21 ghuntas total area 3‑16 acres situated at Tando Adam, Deh Tando Adam.
That the appellant spent huge amount over the levelling of the land by filling ditches etc. by using hired machinery thereon. Apart from this he incurred expenses over the registration of the land and brokers fees. The said land is in Tando Adam and is on the Highway. He after fulfilment of all the formalities introduced a Housing Scheme in the name of Yunis Villas, after preparing of site plan and formation of 102 plots of different categories as per site plan disposed of about 90 plots amongst the members and only 12 commercial plots were lying vacant with him for disposal. The appellant’s said land was notified with the land of others (in all 14‑21 acres) for acquisition under section 4 and then under section 6 of the Land Acquisition Act vide notification published in the Sindh Government Gazette dated 2‑7‑1989 and 12‑10‑1989, for the establishment of Small Industries Estate Power Loom Section, at Tando Adam.
That the appellant had no knowledge about the proceedings regarding the acquisition of the land, as the same were taken in his back with ulterior motive and mala fide intention. The appellant when came to know about the proposed acquisition, he appeared before the L.A.O. and filed objections, but the same were not looked into in the light of justice and the Award was passed at his back. He came to know about the passing of the award on 8‑1‑1991 in respect of the acquisition of his land alongwith the land of others, after receipt of notice by him for vacation of the said land on 18‑11‑1990 from District Officer, Small Industries Corporation, Sanghar. He then visited the office of the respondent and moved an application for grant of true copy of the Award if passed, which was avoided from time to time on false pretext that no award was passed. He then on 9‑1‑1991 had succeeded to get only photo stat copy of the award from the respondent, when‑payment voucher in the sum of Rs. 4,37,920 alongwith the photo stat copy of the award was handed over to him for producing the same before the Treasury Officer, Sanghar. The said award reveals that the same was passed on 23‑1‑1990 at Shahdadpur wherein the price has been determined at Rs. 1,12,000 per acre plus 15 % compulsory acquisition charges. This fact of passing of the award was concealed though the applicant visited the office of the respondent on several occasions in this regard, ultimately on 8‑1‑1991 he came to know about the passing of the award. The appellant received an amount of Rs. 4,37,920 under protest and recorded such protest note with the respondent. The appellant had stated that the valuation of his said land is more than Rs. 4,00,000 per acre in the locality, but the amount of compensation shown in the award is inadequate.
The appeal was admitted for regular hearing on appreciation of the following:
That the learned Judge has failed to grant 15 % Additional Compensation charges under section 28‑A of the Land Acquisition Act, 1894 to the appellant.
That adjacent the said land of the appellant and land of others shown in the said award, the telephone department has got acquisition of the land through the same Land Acquisition Officer (respondent) at the rate of Rs.33 per sq. ft. Photostat copy of such award dated 21‑9‑1991 is filed herewith. This prove the real and potential of the land.
That the prayer of the appellant of grant of compensation of his land subject -matter of the appeal, at the rate of Rs. 5,00,000 per acre is genuine one, but instead of granting such request an amount of Rs. 2,50,000 per acre only has been award by the learned Additional District Judge, Shahdadpur, which is inadequate.
That the appellant is entitled to have compensation at the rate of Rs. 5,00,000 per acre, he is also entitled to have Add. Compensation under section 28‑A of Land Acquisition Act, 1894, at the rate of 15 fixed on the basis of the market value prevailing on the date of notification under section 4 to the date of payment of the compensation, and also an interest on the entire compensation amount at Rs.6% from the date of expropriation, till the payment is actually made, by the L.A.O. apart from this the appellant is also entitled to have more 15 % compulsory acquisition charges under the law.
During the course of the proceedings, this Court was of the opinion that arguments should be led on the point of limitation and section 18 of the Land Acquisition Act. Under the circumstances Mr. Ghulam Rasool Qureshi, learned senior counsel was asked to assist the Court as an amicus curaie.
The matter was heard at length and the counsel for the appellant went through the points raised by him in the appeal and insisted that based upon the written and oral evidence that was brought on record the impugned order, dated 20th April, 1992 is fit to be set aside on various grounds, specially the grounds mentioned above.
The learned counsel on behalf of the appellant and in support of his appeal has drawn my attention to the registered sale‑deed which is Exh.5, copy of record of rights, certificate of Mukhtiarkar and valuation certificate. He has also drawn my attention to Exh.29 which are extracts from the record of rights of different lands which has been purchased. According to him the claim in the appeal is justified, and therefore, he has prayed that compensation be given to him at the rate of Rs. 5,000 per acre. He has also claimed Additional Compensation under 28‑A of the Land Acquisition Act at the rate of 15 % based upon the market value prevailing on the date of the notification. He has also claimed interest on the entire compensation as well as 15 % compulsory acquisition charges.
The respondent was represented by the learned Additional Advocate‑General who has basically confined his arguments to the fact that the reference to District Judge under section 18 of the Land Acquisition Act was barred by limitation. According to him the reference has to be made within six weeks. Section 18 of the Land Acquisition Act is reproduced as follows:‑‑
“18. Reference to Court.‑‑‑(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. “
According to the counsel in First Appeal No.22 of 1992 the reference was made on 21‑1‑1991, in First Appeal No.23 of 1992 which was made on 27‑5‑1991 and in First Appeal No.24 of 1992 it was made on 27‑5‑1991 and in First Appeal No.25 of 1992 on 4‑3‑1991. According to him all these references were time bar. He has also pointed out that the reference was wrongly made as it was to be made to the District Judge and the Court to whom the reference was made should have noted this aspect, and therefore, the order is without jurisdiction. Furthermore, he has pointed out that the so -called Mukhtiarkar’s statement/certificate is in fact issued by a architect and not much reliance can be placed upon it. Besides, taking the legal objection the learned Additional Advocate‑General has challenged that the amount claimed by the appellant as compensation is fair. In support of his contention the learned counsel has relied upon the reported case of Province of Punjab through Project Director, Housing and Physical Planning Department v. Sher Muhammad and another PLD 1983 Lah. 578 where their Lordships has held that if reference was not made within six months of award then it is barred by limitation. In the same case their Lordships had also held that it would be unsafe to make an estimate of price of entire land on the basis of mutation. He has also relied in the case of Ghulam Muhammad v. Government of West Pakistan PLD 1967 SC 191 where it is held that the maximum period for filing objection under section 18 was six months. He has also relied in the case of Azad Government of the State of Jammu and Kashmir v. Muhammad Shafi PLD 1971 Azad J&K 33. In this case their Lordships while relying‑on PLD 1967 SC 191 have added that ‑coon 5 of the Limitation Act would nr be applicable to Land Acquisition Act the counsel has also drawn my attention to 1998 CLC 1520 where the maxim has been held as follows:‑‑
“‘ A communi observatia non est recedendum (Where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done, it would not be lawful.)”
Mr. Ghulam Rasool Qureshi was called upon to assist this Court has first summarised the fact which are worthwhile reproducing: ‑‑
Admitted facts of the case are that the lands of the appellants was acquired for public purposes. The notification under sections 4 and 6/1 were published on 29‑7‑1989 and 12‑10‑1989 respectively. The possession of the land was taken on 12‑10‑1989. Award was passed on 23‑1‑1990 wherein the L.A.O. Mr. Mukhtar Hussain allowed compensation as under:?
(a) Market value at Rs. 1,12,000 per acre under section 23(1) of Land Acquisition Act.
(b) Compulsory acquisition charges under section 23(2) of the Land Acquisition Act. He omitted to allow’ Additional Compensation at 15 P.A. under section 28(A) and simple interest 6% P.A. under section 34 of Land Acquisition Act. The appellant hotly contested before L.A.O. Mr. Vishan Das took over the charge. The appellant made the applications as under:
(i) In C.A. No.22 of 1992 M. Younus filed application under section 18 of Land Acquisition Act on 21‑1‑1991 (after 11 months 28 days of award dated 23‑1‑1990).
(ii) In C.A. No.23 of 1992 Islamuddin filed application under section 18 of Land Acquisition Act on 27‑5‑1991 (after 1 year 4 months 4 days of award dated 23‑1-1990).
(iii) In C.A. No.24 of 1992 Ashraf filed application under section 18 of Land Acquisition Act on 27‑5‑1991 (after 1 year 4 months day of award dated 23‑1‑1990).
(iv) In C.A. No.25.of 1992 M. Yousuf on 4‑3‑1991 (after 1 year 1 month 18 days of award dated 23‑1‑1990).
He has argued on three main points, on point No. 1 it was argued:
Whether the L.A.O. Mr. Vishan Das was hand in glove with the appellants while making references?
The Land Acquisition Officer sent the references (in Appeals Nos.22 of 1992 and 23 of 1992) to A.D.J., Shahdadpur though he ought to have sent to District Judge, Sanghar through his letter dated 11‑2‑1991 and 1‑6‑1991 and the remaining two matters were sent without any reference letter. He obliged the appellants purposely and did not examine the legal position as to whether he was competent to make reference in these matters? And that what was the procedure of making the reference in Land Acquisition matters? Mr. Vishan Das also obliged the appellant before the learned Additional District Judge as well, when he was served with summons from the learned Additional District Judge he made appearance once and thereafter, remained absent and did not file the written statement. The learned Additional District Judge even after the evidence of the appellants, served the notice on L.A.O. but he remained absent to oblige the appellant. And the learned Additional District Judge was forced to pass ex parte order which shows that Mr. Vishan Das, L.A.O. was hand in gloves with the appellants for reasons not recognized by law. Thus, they have deliberately caused loss to the Government.
The references are to be sent to Courts strictly within the provision of section 18 of the Land Acquisition Act and on the prescribed Pro forma No.VII being a mandatory requirement but the L.A.O. totally ignored the provision of law.
It is settled law by now that where a thing was provided to be done in a particular manner, it had to be done in that manner and if not done so, it would not be lawful. 1998 CLC 1520 and PLD 1964 SC 536.
The Court is under a duty to show awareness of the law of the land and to apply I it, irrespective of the fact whether parties or their Counsel invoked it or not? 1994 SCMR 107 (F.B.).
The references ought not to have been sent and if sent, ought to have been rejected by the learned Additional District Judge on the above sole referred legal position.
Point No.2.
Whether the L.A.O. had the jurisdiction to make these references?
Point No. 3.
Whether the learned referee Court had the jurisdiction to entertain and adjudicate these references?
The L.A.O. has power to make reference subject to certain conditions i.e.:
(a) There should be a written application by the person interested, who has not accepted the award.
(b) Nature of objections must be given.
(c) The time, within which, the application shall be made. The L.A.O. is bound to satisfy itself that the reference made by him comply with the specified conditions so as to give the Court, jurisdiction to hear the references and if the references do not comply with the terms of the Act, then the Court cannot entertain them. If the applications under section 18 of Land Acquisition Act are made after the maximum period of six months to the L.A.O., the L.A.O. shall reject such applications and even if he makes the references on such applications, the Court shall reject the same and shall not have the jurisdiction to entertain such references and to adjudicate them. In the present cases the Learned Additional District Judge has given the judgment without any jurisdiction as such the judgment passed by him suffers from total want of jurisdiction and are void.
I am supported in the above by the following decisions:
(1) 1996 CLC 1943.
(2)1997 MLD 2359.
(3) PLD 1983 Lah. 578.
(4) AIR 1963 Ker. 3.
(5) AIR 1965 And. Pra. 25.
(6) AIR 1962 J&K 59.
(7) AIR 1959 Allahabad 576.
(8) PLD 1971 Azad J&K 33.
Limitation Act is not applicable to proceedings under Land Acquisition Act.
(a) PLD 1967 SC 191. (F.B.) PLD 1971Azad J&K 33 (D.B.).
In view of the facts and law, the references made by Mr. Vishandas is without any jurisdiction and for his ulterior motives.
It is further observed that the learned Additional District Judge had no jurisdiction, whatsoever to entertain and to adjudicate on the references which were illegal and did not confer jurisdiction on him. The judgments passed by the learned Lower Court has no legal sanctity and are void for all purposes.
(a) For the reasons stated above, the references are bad in law and did confer jurisdiction to Additional District Judge to entertain them and the judgment passed by the learned Additional District Judge is declared as void being corum non judice, as already discussed in the case of Assistant Commissioner, Mianwali and another v. Muhammad Amir and 4 others 1987 CLC 2095. The Land Acquisition Officer becomes functus officio once the reference is sent to the District Judge.
The learned counsel for the appellant has also relied on the following case laws:‑‑
(1) Nazar Muhammad Khan v. Collector NLR 1980 Revenue Lah. 36.
(2) Muhammad Mustafa v. Excise and Taxation Officer and another PLD. 1992 SC 398.
(3) Sardar Abdus Samad Khan v. Land Acquisition Collector 1990 MLD 972.
(4) Government of Sindh and 2 others v. Syed Shakir Ali Jafri and 6 others 1996 SCMR 1361.
(5) Land Acquisition Officer, L.B.O.D. WAPDA, Hussainabad, Hyderabad v. Abdul Hamid Ali and 2 others 1999 MLD 2922.
(6) Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472.
(7) Water and Sanitation Authority and another v. Niaz Muhammad and 5 others 1994 SCMR 1648.
(8) Haji Muhammad and others v. Deputy Commissioner, Karachi (East) 1990 MLD 923.
(9) Falak Sher v. Ali Ahmad Noor and others 1999 CLC 1297.
Now the award dated 23‑1‑1990 passed by Mr. Mukhtar Hussain Land Acquisition Officer remains as the only legal order in the field, which also requires modification to the extent of relief under section 28(A) and under section 34 of Land Acquisition Act. Since it was mandatory on Land Acquisition Officer to award the above relief which, he has omitted. The relief under section 28(A) and under section 34 of the Land Acquisition Act is allowed on the compensation already awarded by the Land Acquisition Officer, up to the date the compensation was paid to the appellant.
Q.M.H./M.A.K./M‑487/K
Order accordingly.
