2001 PLP 729 (MLD)

(i) true are of the land; (ii) compensation which in his opinion, having regard to the productions of sections 9 and 10 should be allowed for the land; and (iii) apportionment of such compensation among all the persons known or believed to be interested in the land of whom; or whose claims he has information whether or not they have appeared before him.

8. Compensation. ‑‑‑Where any land is acquired under this Act there shall be paid compensation, the amount of which shall be determined by the Collector who shall be guided by the provisions of sections 9 and 10.

9. In determining the amount of compensation to be awarded for land acquired under this Act, the Collector shall take into consideration‑‑ (i) the market value of the land to the determined on the basis so two years average sale price of land similarly situated and put to similar use preceding the date of notification under section 4(1), (ii) the damage if any, sustained by the person interested at the time of taking possession of the land by reason of severing such land from the other land; (iii) the damage, if any, sustained by the person interested at the time of taking possession of land by reason of the acquisition injuriously affecting his other property, movable, or immovable, in any other manner or his earnings; (iv) if, in consequence of the acquisition of land the person interested is compelled to change his residence or place of business, the reasonable expenses; if any, incidental to such change: Provided that the maximum rate of compensation determined by the Collector under clauses (i) to (iv) shall not exceed Rupees Twenty Thousand per acre; and (v) the damage sustained by the person interested by reason of dispossession of any standing crops or trees or buildings of other structures or installations which may be existing on the land acquired.

10. Factors to be ignored in determining compensation.‑‑‑In determining compensation as aforesaid the Collector shall not take into consideration‑‑ (i) the degree of urgency which has led to the acquisition; (ii) any disinclination of the person interested to part with the land acquired; (iii) any damage sustained by him which if by a private person would not render such person liable to a suit; (iv) any damage which is likely to be caused after the date of the publication of the notification under section 4 by or in consequence of the use to which it will be put; (v) any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired; (vi) any increase likely to accrue to the value of the other land of the persons interested from the use to which the land acquired will be put; or (vi) any outlay or improvements on, or disposal of the land acquired, commenced, made or affected, without the sanction of the Collector after the date of the publication of the notification under section 4, subsection (1). (ii) Payment of compensation.‑‑‑‑The payment of compensation may be made in the form of cash, bounds, debentures, annuities over a period not exceeding 20 years in the form of developed sites or in a combination of such forms in such manner as may be prescribed: Provided that‑‑ (i) payment in case to each landowner shall be‑‑ (a) for the first four Kanals of the area acquired, hundred per cent. or the compensation award; (b) for the next three Kanals of the area acquired seventy‑five per cent. of the compensation awarded; (c) for the next five Kanals of the area acquired seventy‑five per cent. of the compensation awarded; (d) for the next ten Kanals of the area acquired fifty per cent. of the compensation awarded; (e) for the next ten Kanals of the area acquired thirty per cent. of the compensation awarded; and (f) for all additional area acquired, five per cent. of the compensation awarded; (ii) the maximum payment of compensation in case to any individual landowner shall not exceed rupees one lac, the balance being payable in other forms: Provided further that a landowner whose total land acquired does not exceed eight Kanals shall have the opinion to select the form of payment of compensation. (2) Notwithstanding the provisions of subsection (1) in case of acquisition of land for a scheme for improvement of Katchi Abadi no landowner shall be entitled to more than one developed site in lieu of the amount of compensation payable to him. The balance of the amount of compensation may be paid in the form of cash, bonds, debentures to annuities over a period not exceeding twenty years. The size of the developed site, to which the landowner may be entitled, shall be such, as may be determined by Government, or the Official Development Agency,. as the case may be: Provided that the landowner shall not be entitled to any developed site in lieu of the amount of compensation payable to him if the land is acquired only for facilities for health, education, recreation, transportation, communication and the utility services and defined in subsection (1)(e)(iii) of section 2 of the Act. However, in such a case the landowner whose land acquired does not exceed eight Kanals but be paid full amount of his compensation in the form of cash.

15. Period for payment of cash compensation. ‑‑The compensation payable in cash shall be paid in the prescribed manner within ninety days from the date of announcement of the award." The pertinent provision of Repealing Act 12 of 1985 section 3 is as follows:‑‑

3. Continuation of acquisition proceedings and assessment etc., of compensation--‑‑Where in a case proceedings have commenced under the Punjab Acquisition of Land (Housing) Act, 1973, or under its provisions as incorporated or referred to in any other law, rule or instrument, for the time being in force, the same shall continue and shall be completed under the provisions of the said Act and the rules made‑thereunder: Provided that where in a case an award has not been made under section 7 of the said Act at the time of commencement of this Act, the compensation in such a case shall be assessed, awarded and paid under the provisions of the Land Acquisition Act, 1894 (1 of 1894): Provided further that in a case in which an award has been made before the commencement of this Act under the Punjab Acquisition of Land (Housing) Act, 1973, but the payment of compensation or a part thereof is to be made through bonds, debentures or annuities, the said compensation shall become due for immediate payment in cash on the commencement of this Act unless the owner whose land has been acquired chooses to adjust the same towards the cost of any developed site which may have been given to him as part of compensation. " It is settled proposition of law that preamble is key to understand the Act. The Preamble of the Act reveals that it was enacted to make provisions for the acquisition of land for housing schemes in Urban and Rural areas of the Province and for matters incidental thereto. It is also settled principle of law that Act 8 of 1973 directly interfered with the inviolable right of the people regarding their disposal of property. It was founded upon the maxim of Salus populi suprema lex" that the interests of the public are supreme and that the private interests are subordinate to the interests of the State, therefore, it is well‑established canon of interpretation that in construing the provisions of such Act the principle of narrow construction is to be adopted with an objection of giving benefit to subject. Applying these principles to the facts of the case it is better and appropriate to notice the object and schemes of these two Acts in order to resolve the present controversy. Section 3 of the Act envisaged that the land within the Province of Punjab was made liable in acquisition for Housing Scheme approved and notified by Government or Official Development Agency whereas section 4 empowers the Deputy Commissioner to issue the preliminary notification and under the Scheme of the Act Collector was also empowered to take possession of the land and assessed the compensation. The features of Act 1973 reveal that it retained all the provisions relating to acquisition prescribed in Land Acquisition Act, 1894 except that under section 11 of Act, 1973 different considerations for determining the compensation were provided. This section further prescribed totally different criteria for determining the compensation as well as a new method of payment of compensation to owners in form of bonds debentures etc. over a period not exceeding twenty years. This new formula was apparently to the determinant of owners who were entitled to sock compensation on the basis of market value of land at the time of acquisition, Taking into consideration of this harsh feature in Act 8 of 1973 the Legislature passed the Repealing Act 12 of 1985 lit order to erase front the Statute Book the stringent provisions relating to payment of compensation in compulsory acquisition of land of citizen of State by the Province of Punjab. Now I will examine the submission of both the parties in the light of the object and the spirit of unrepealed and Repealing Act. Basically the dispute is with respect to interpretation of section 3 of the Act 12 of 1985. The 1973 Act was repealed by the Punjab Acquisition of Land (Housing) Repeald Act, 1985 and by its section 3, first proviso, wherein a case and award had not been made under section 7 of the 1973 Act, at the time of commencement of the Repealing Act, 1985 the compensation in such a case shall be assessed, awarded and paid under the provisions of the Land Acquisition Act, 1894. In the present case land of the respondents was acquired under the provisions of the unrepealed Act, 1973 and the award was announced by the Collector vide order, dated 5‑11‑1985. The respondents filed appeal before the Additional Commissioner (Revenue), Gujranawala in the month of November, 1985 which was admitted for regular hearing by him on 11‑11‑1985. The Repealing Act. 1‑985 came into force on 13‑11‑1985. The learned Commissioner decided the appeal keeping in view the provisions of Repealing Act and enhanced the compensation of the land in question from Rs.26,672 per acre to Rs.1,26,577.60. The petitioner's plea was rejected that the Additional Commissioner had to decide the case on the basis of the provisions of the unrepealed Act, 1973 but the same was rejected by the learned Additional Commissioner (Revenue) and accepted the appeal of the respondents on 19‑7‑1986. The petitioner also filed review application before the learned Additional Commissioner reagitated the aforesaid plea but the same was rejected. The, learned Additional Commissioner, Revenue rejected the same on the principle that on the filing of the appeal, the entire matter became reopened and sub judice and had to be decided in accordance with law then prevailing as per principle laid down by the Hon'ble Supreme Court in the Province of East Pakistan v. Muhammad Hussain Mia PL.D 1965 SC 1; PLD 1964 SC 520 (F.A. Khan v. Government of Pakistan). The learned counsel of the respondents in support of the aforesaid proposition also relied upon PLD 1978 SC 220 (Mst. Amino Begum v. Mehar Ghulam Dastgir) In order to resolve the present controversy whether the principle of Repeal on the basis of section 6 of the General Clauses Act is attracted in the present case or not. It is settled proposition of law whenever there is a repeal of an enactment, the consequences laid in section 6 of the General Clauses I Act will follow unless the section itself indicates different intention. It is a case of simply repeal but when the repealed is followed by fresh legislation on the same subject it is necessary not only to look into the Repealed Act but also the provisions of Repealing Act. In arriving to this conclusion I am fortified by the reported judgment 1990 MLD 1725 (Muhammad Aslam v. Deputy Commissioner, Sheikhupura), it is also settled law that where legislation is repealed and enacted in substantially the same term, the sow legislation is taken to have been drafted with knowledge of the judicial decision on the old, and will be interpreted in the light of those decisions as per principle laid down in the following judgments:

(1894) 2 Ch. 557 (Re: Budgett's case); (1964) P. 303 (lames v. James); (1964) 2 QB 687 (Fire Auto and Marine Co. Ltd.'s coos); (1965/Ch. 148 (Re~ Yeovel Glove Co. Ltd.'s coed), and (1965) P. 117 (Alford v. Alford). The judgments relied upon by the Additional Commissioner, Revenue and by the learned counsel for the respondents are distinguished on facts and law and have no relevancy to resolve the present controversy. It is also admitted fact that rate of compensation of Rs.20,000 is fixed by the Statute by virtue of sections 10 and 11 of the unrepealed Act and this Court has laid down principle that the same is not justiciable in Malik Abdullah v. Multan Development Authority 1986 CLC 2073, decided on 18‑12‑1985, in view of the Provisional Constitution Order, 1981 as the fundamental rights were held in abeyance. Mere reading of the proviso 1 of section 3 of Repealing Act, 1985 reveals that compensation has to be determined under the' provisions of the Land Acquisition Act, 1894 in case an award has not been made under section 7 of the unrepealed Act,. 1973 at the time of commencement of the Repealing Act, 1985. The award was announced on 5‑11‑1985 and the Repealing Act, came into force on 13‑11‑1995, therefore, impugned‑orders of the learned Additional Commissioner are in violation of this provision of the Repealing Act. The contention of the learned counsel of the respondents that award, dated 5‑11‑1985 is a partial award has no force as in the award the Collector has determined the final compensation of the land in question through the award dated 5‑11‑1985. The Collector did not have determined the compensation for trees and crops. The Collector has to fix the compensation keeping in view the provisions of Land Acquisition Act, 1894, qua the compensation of trees and crops. In view of what has been discussed above this writ petition is accepted and orders of the learned Commissioner are set aside and award of the Collector dated 5‑11‑1985 is upheld. M.A.K./Q.M.H./P‑18/L Petition allowed.