P L D 1965 (W (PLP)

ANWARUL HAQ, J.‑This first appeal by the Land Acquisition. Collector, Rawalpindi, arises out of an award made by Mr. M. Jamil Asghar (now Mr. Justice M. Jamil Asghar), the then' District Judge, Rawalpindi, assessing the market price of the land at Rs. 3,270 per kanal for the purposes of determining compensation to be paid to the respondents on account of the acquisition of their land for setting up the Satellite Town, Rawalpindi. The area involved in this case is 39 kanals and 4 marlas situated in Mauza Rawalpindi. The notification under section 4 of the Land Acquisition Act was issued on the 21st of May 1953. The respondents had claimed compensation at the rate of Rs. 5,000 per kanal, but the Land Acquisition Collector awarded only Rs. 932 per kanal on the basis of five years average of sales in the Mauza of Rawalpindi. On a reference being made to the learned District Judge the amount of compensation has been increased to Rs. 3,270 per kanal as already stated.

2. The main contention raised before us by Mr. Ata Ullah Sajjad, the learned Additional Advocate‑General, is that the Land Acquisition Collector had rightly relied upon the five years average of sales, and that, in any case, even the average price of sales of contiguous lands works out to Rs. 2,770‑11‑8, and accordingly there was no justification for the learned District Judge to award Rs. 3,270 per kanal.

3. Cross‑objections have also been filed on behalf of the respondent land‑owners claiming 15%. on the market value as assessed by the learned. District Judge, in lieu of compulsory acquisition as provided in subsection (2) of section 23 of the and Acquisition Act.

4. We shall first take up the question of the assessment of the market value of the land in dispute. It has been brought out in evidence that the land in question is a building site surrounded by buildings on all sides. We consider, therefore, that the learned District Judge was right in remarking that the ausat panjsala relating to sales of agricultural land in the large revenue estate known as Mauza Rawalpindi, was not a true index of the market price in this case, and that the average price relating to sales of contiguous lands falling within a radius of one furlong was a much better guide, in the absence of evidence of recent sales of any part of the property under acquisition. Accordingly, reliance was rightly placed on Exh. R. W. 1/B prepared by Irshad Ahmad, Field Qanungo, pertaining to the sales of land within a radius of one furlong from the land in suit. It has already been stated that the average of these sales works out to Rs. 2,770‑11‑8: It was strenuously contended by Mr. Ata Ullah Sajjad, the learned Additional Advocate‑General, that this' average price should be regarded as the maximum which could be awarded in this case. But this contention of the learned Additional Advocate‑General overlooks the fact that if there are any special circumstances or features pertaining to the land under acquisition, then they have to be taken into account before a final assessment can be arrived at, and there is no inflexible rule that in all cases the average price must he adhered to. In the instant case the learned District Judge has observed that the land under acquisition is surrounded by the abadi and is nearest to Rawalpindi Town, as compared to the lands which are included in the statement of sales Exh. R. W. I/B. It was pointed out by Sahibzada Nasir Ali, the learned counsel for the respondents, that this land was only. 71 feet from land mentioned in sale‑deed Exh. P. 1 according to which Jamadar Abdul Latif (P. W. 1) had purchased 15 marlas of land for Rs. 7,500 in January 1953, i.e., at the rate of Rs. 10,000 per kanal. These factors justify 'the increase of Rs. 500 per kanal allowed by the learned District Judge over the average price of the five years sales of contiguous lands as worked out in Exh. R. W. 1/B. We consider, therefore, that no justification is made out for reducing the market value as assessed by the learned District Judge. The appeal is, therefore, dismissed.

5. We now take up the cross‑objections filed by the respondents to the effect that they were entitled to get 15% extra on the market value in lieu of compulsory acquisition as provided in section 23 (2) of the Land Acquisition Act. A preliminary objection was raised in this behalf of Mr. Ata Ullah Sajjad to the effect that the respondents had not claimed this amount before the Land Acquisition Collector and the District Judge, and, therefore, they should not now be permitted to raise this claim for the first time in appealed in support of this objection the learned Additional Advocate‑General placed reliance on Hafiz Anwar Ali and. others v. Ram Sarup and others (1914 P L R 180); Secretary of State v. C. R. Subramania Ayyar (A I R 1930 Mad. 576) and Pramatha Nath Mullick Bahadur v. Secretary of State (AIR 1930 P C 64). The principle laid down in these authorities is that "the proceedings before the Court are of the nature of objections to the Collector's award, and not a judicial inquiry independently undertaken into such questions as the claimant may raise, and it would not be open to a claimant to make out a fresh case, whether by way of supplementary claim to compensation or otherwise."

6. We are in respectful agreement with the principle stated above, but are of the view that it has no application in the present case. The observations made in these authorities refer to questions which need factual investigation, whereas in the present case the respondents are basing their claim on a statutory provision, namely, subsection (2) of section 23 of 'the Act, which states that "in addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition." If this provision of law applies to the instant case, then it was clearly the duty of the Land Acquisition Collector as well as of the' Court to award this extra sum of fifteen per centum on the market value, and it was not necessary for the land‑owners to make any specific claim in this behalf. The view that we take on this point finds support from Muhammad Sajjad Ali Khan and others v. Secretary of State (A I R 1933 All. 742) and Muhammad Ismail and others v. Secretary of State (A I R 1936 Lah. 599). The question, therefore, is whether section 23(2) of the Land Acquisition Act applies in this case.

7. The land in this case has been acquired for the purpose of setting up a Satellite Town and accordingly the acquisition was made under the Punjab Town Improvement Act which was extended to‑such acquisition by the Amending Act II of 1953. The Amending Act achieved this object by adding a new subsection (3) to section 66 of the Punjab Town Improvement Act, in the following words:‑ "Whenever the Provincial Government acquires land for the purposes of the setting up a Satellite Town, whether within or beyond the local limits of a Municipal Committee or other local authority or trust, or for any other purpose which in the opinion of the Provincial Government is connected with the setting up of the Satellite Town concerned, the provisions of subsections (1) and (2) shall, as far as possible, apply to such acquisition. Explanation.‑For the purpose of this subsection a Satellite Town means new town to be set up in the vicinity of one already existing and includes such town the construction of which has been undertaken by a Co‑operative House Building Society registered under the Punjab Co‑operative Societies Act, 1912." Subsection (1) of section 66 of the Punjab Town Improvement Act lays down that whenever a Municipal Committee or other local authority acquires land for certain purposes, "the modifications of the Land Acquisition Act contained in the Schedule of this Act shall, so far as they are applicable, apply to every such acquisition." Clause (b) of subsection (1) of section 66 contemplates that the Provincial Government may constitute a Tribunal for the purposes of assessing compensation, and subsection (2) of section 66 states that in case the Provincial Government does not constitute a Tribunal in accordance with clause (b) of subsection (I), all references to the Tribunal in the Schedule shall be construed as referring to the High Court, i.e., as defined in the Land Acquisition Act. The combined effect of the various provisions of section 66 of the Punjab Town Improvement Act is that the compensation in the present case has to be assessed in accordance with the provisions of the Land Acquisition Act as modified by the Schedule to the Punjab Town Improvement Act. Paragraph 10 of the Schedule effects certain amendments in section 23 of the Land Acquisition Act. In the present context clause (2) of this Paragraph is directly relevant. It is as under:‑ "10 (2).‑The full‑stop at the end of subsection (2) of section 23 of the said Act shall be deemed to be changed to a colon and the following proviso shall be deemed to be added: Provided that this subsection shall not apply to any land acquired under the Punjab Town Improvement Act, 1922."

8. It has already been stated that subsection (2) of section 23 of the Land Acquisition Act provided that fifteen percent on the market value as assessed has to be paid to land‑owner in lieu of compulsory acquisition. Now the effect o clause (2) of Paragraph 10 of the Schedule to the Punjab Town Improvement Act is that the subsection shall not apply in case of acquisition mentioned in section 66 of the Punjab Tow Improvement Act, including acquisitions for the setting up of a Satellite Town. It was, however, contended on behalf of the respondents that the amendments introduced by Paragraph 10 of the Schedule in the main provisions of the Land Acquisition Act were ultra wires of the constitutional provisions obtaining on the relevant date, namely, the Government of India Act, 1935, in so far as they were applied to acquisition of land for Satellite Towns, with the result that compensation even in such cases will have to be assessed in accordance with the provisions contained in section 23 of the Land Acquisition Act, pure and simple. In support of this proposition reliance was placed on M. Salim Ullah and others v. The Province of West Pakistan (P L D 1960 Lah. 450).

9. In the judgment relied upon by the learned counsel for the respondents the provisions of law which came under direct challenge was clause (3) of Paragraph 10 of the Schedule to the Punjab Town Improvement Act, by which the definition of market value of the land as given in subsection (1) of section 23 of the Land Acquisition Act was radically altered. Kayani, C. J., delivering the judgment of the Court, observed that clause (3) of Paragraph 10 of the Schedule to the Punjab Town Improvement Act introduced an artificial definition of the term "market value" which amounted to depriving the land‑owner of just and adequate compensation which was due to him, and the payment of which was a constitutional requirement under section 299 of the Government of India Act, 1935. He went on to say that "clause 10 of the Schedule to the Punjab Town Improvement Act, 1922, therefore, violates the principle enunciated in section 299 of the. Government of India Act and would have been bad law if it had not been a law in force at the date of the passing of the Government of India Act, 1935, and, therefore, protected by subsection (4) of section 299 thereof. This protection was extended in 1951 by the addition of subsection (4) (a) to laws made within a period of three years next after the establishment of the Federation, and in 1956 the period of three years was extended to five years restrospectively. Now, since the amendment of 1953 is neither existing law, nor a law made within five years of the Federation in so far as it conflicts with section 299, it is beyond the competency of the Legislature. We, therefore, hold that clause 10 of the Schedule cannot to this extent, be applied to Satellite Towns, and that compensation for the acquisition of land for such towns should be assessed purely under the Land Acquisition Act."

10. It will be seen that in Salim Ullah's case their Lordships were considering the constitutionality of clause (3) of Paragraph 10 of the Schedule to the Punjab Town Improvement Act in relation to its applicability to Satellite Towns by virtue of Amending Act II of 1953 and the conclusion, reproduced above, relates exclusively to this clause. It cannot be extended automatically to cover all the clauses of Paragraph 10 of the Schedule, in spite of some general statement in the body of the judgment which may create such an impression. The validity of clause (2) of Paragraph 10 of the Schedule wag not in question in Salim Ullah's case and we are, therefore, not persuaded that the judgment in that case has declared this clause also to be ultra vires of section 299 of the Government of India Act, 1935, in its application to acquisition of land for Satellite Towns. However, it was urged at some length before us that the reasoning in Salim Ullah case applied mulatis mutandis in respect of clause (2) as well and we should, therefore, come to a similar conclusion with regard to its validity.

11. Section 299 of the Government of India Act is in the 'following words:‑ "299.‑Compulsory acquisition of land, etc. (1) No person would be deprived of his property save by authority of law. (2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising a compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest, in, or in any company owning any commercial or industrial undertaking, unless the law provides for giving compensation for the property acquired and either fixes the amount of the compensation, of specifies the principle on which, and the manner in which, it has to be determined and given. (3) . . . . . . . . . . (4) . . . . . . . . . . (4-A) . . . . . . . . . .

12. It is contended on behalf of the respondents at the term "compensation" as used in section 299 of the Government of India Act, 1935 must be held to include an element over and above the market value of the land plus compensation for damages,, etc., so as to compensate the land‑owner for compulsory acquisition, and ii any law seeks to take away this extra payment on account of compulsory acquisition, then by necessary implication it has the effect of taking away property without due compensation as required by the Constitution. It is common ground that the Amending Act II of 1953 having been enacted beyond the period of five years since the establishment of the Federation is not protected by subsection (4) (A) of section 299 of the Government of India Act, 1935 which protection is available to clause (2) of Paragraph 10 of the Schedule to the Punjab Town Improvement Act in its application to acquisition for purposes originally mentioned in subsection (1) of section 66 of the Punjab Town Improvement Act. The question, therefore, is whether the element of fifteen per centum on the market value of: the property as assessed under subsection (1) of section 23 of the Land Acquisition Act is an essential ingredient of compensation which must be paid to an owner in accordance with the requirements of subsection (2) of section 299 of the Government of India Act, 1935.

13. The learned counsel for the respondents referred us to the following remarks appearing on page 490 of Sanjiva Row's Law of Land Acquisition and Compensation, 1958 Edition: "The Select Committee in their Preliminary Report on the Land Acquisition Act remarked: `It appears more convenient to insert here than in a latter part of the Act, the instruction contained in section 42 of the Act, that in addition to the amount of compensation due to the owner of the land acquired, 15 per centum on the market value shall be given in consideration of the compulsory nature of the acquisition. We have accordingly added a clause to this effect m the section by which we amend section 42 of the Act (X of 1870) and the Collector or Judge making the award will find embraced in a simple section the whole of the detail required for the completion of his estimate of compensation.' This statutory allowance of 15 percent. over and above the market value of the land, which is to be given in consideration of the compulsory nature of the sale, was also intended to compensate the owner for his disinclination to part with his property, a factor which has to be left out of consideration in estimating the compensation. This, it was thought, was more, of a sentimental than of a real grievance, but yet could hardly be altogether ignored. Even in England where there is no express provision corresponding to the present subsection it is the established practice to allow 10 percent. on the value of the land. `The exact purpose of this allowance is a little uncertain, but the correct view probably is that it was adopted in practice as a convenient means of providing for the cost of re‑investment and other incidental expenses which the owner might incur in connection with the taking of his land. This allowance is intended as a bonus and to cover the loss ‑ arising from the necessity of re‑investing the money'."

14. Reliance was also placed on the observations contained in Paragraph 281 of Volume 10 of Halsbury's Laws of England, Third Edition, to the effect that: "On a compulsory sale the amount of compensation will include in the price of land, not only its market value, but also compensation for the personal loss imposed on the owner by the forced sale. It will include the incidental loss in connection with any business he has been carrying on or, in appropriate cases, the costs of re‑instatement."

15. Finally, reference was made to the dictum in Horn v. Sunderland Corporation ((1941) 2 K B 26 C A). In that case their Lordships were dealing with the question of compensation for disturbance to the owner of an agricultural farm which was being compulsorily acquired as a building site under the Housing Act of 1936. The majority of the learned Judges took the view that "since the value of the land as building land could only be realised by the removal of the business, compensation for disturbance could not be awarded because the value as building land exceeded the sum of the value of the land as agricultural land plus the value of the minerals plus the loss by disturbance. If the sum of these items exceeded the value as building land, then the applicant would be entitled to the difference." 16.' It seems to us that the observations relied upon by the learned counsel for the respondents do not really go to the root of the matter, namely, what is the true meaning of the term "compensation" as used in cases of compulsory acquisition. There is no doubt that the aggregate amount of compensation payable in each case would consist of several elements, and the authorities quoted on behalf of the respondents deal with one element or the other, with particular reference to the statutes under which the acquisition had been made in each case. When we are considering the constitutionality of a statute dialing with acquisition of property, it is clear that the answer is not to be found merely by reference to the provisions of another parallel statute. The constitutionality of the impugned legislation is to be judged with reference to the requirements laid down in the Constitution itself. Now, in the present case the requirements which must be satisfied by the impugned legislation, as prescribed by section 299 of the Government of India, Act, 1935, are as follows:‑ (a) the law must provide for giving compensation for the property acquired, (b) it should either fix the amount of compensation, or (c) it should specify the principle on which, and the manner in which, compensation has to be determined and given.

17. In the present case it is conceded that the law fulfills the requirement of laying down the principles on which, and the manner in which, compensation has to be determined and given inasmuch as it applies the provisions of subsection (1) of section 23 of the Land Acquisition Act in this behalf, which section enumerates the various elements which are to be taken into account in determining the amount of compensation to be awarded for land acquired. Incidentally, it may be stated that the fifth clause of subsection (1) of section 23 allows an element of compensation for disturbance, a question which was considered in Horn v. Sunderland Corporation. The only challenge, therefore, to the constitutionality of clause (2) of Paragraph 10 of the Schedule to the Punjab Town Improvement Act, and consequently of the amending Act II of 1953, is that by excluding 15 percent. on the market value as determined under subsection (1) of section 23 of the Land Acquisition Act, the law seeks to give to the land‑owner something less than compensation for the property acquired.

18. In Salim Ullah's case, the true meaning of the term "compensation" was clearly brought out in the judgment of Kayani, C. J. and we think that we cannot do better than refer to the definition given therein. His Lordship observed a under:‑ "`compensation' means counter‑balancing, rendering equivalent; requital, weighing one thing against another (Oxford Dictionary Volume II), but it does not weigh copper against gold. Therefore, you cannot compensate a man without requiting him for his land, without rendering to him, of an equivalent in money . . . . . ."

19. Reliance was also placed in that judgment on observations appearing in Jibendra Kishore's case (P L D 1957 S C (Pak.) 9) in which their Lordships of the Supreme Court had, in turn, quoted with approval the following passage from Nichol's "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 compensation shall be just, reasonable or adequate, but these words are mere 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 could be true if omitted, namely, that the compensation should be the equivalent of the property."

20. The same idea is expressed in Paragraph 284 of Volume 10 of Halsbury's Laws of England. When dealing with the measure of compensation the learned author observes as follows:‑ "All the rights which the person enjoys because he has ownership or occupancy are to be considered in valuing the land; the compensation must not, however, exceed the owner's total loss; the principle of equivalence is the root of statutory compensation and the owner is to be paid neither more nor less than his loss." This quotation is taken by the learned author from Horn w. Sunderland Corporation.

21. The essence of the concept of compensation being the rendering of an equivalent in money, it seems to us that the amount of compensation as determined in accordance with the provisions of subsection (1) of section 23 of the Land Acquisition Act, which applies in the instant case, does achieve this result This subsection provides that in determining the amount of compensation the Court is to take into consideration not only the market value of the land but also the damage which may be sustained by the person interested on account of several factors including the loss of standing crops or trees, the severance of the acquired land from his other land, the adverse effect of acquisition on his other property, movable or immovable or his earnings, or on account of his being compelled to change his residence or business, and finally the damage, if any, bona fide resulting from the diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. The compensation assessed under subsection (1) of section 23 is thus the aggregate of the market value of the land plus the monetary equivalent of the damage which may be sustained by the person interested on account of all or any of the items mentioned in the section. The various items listed in this section follow closely the elements of compensation which are mentioned in the English statutes and judicial authorities. It is clear to us that the amount determined in accordance with the various clauses of subsection (1) of section 23 of the Land Acquisition Act can reasonably be regarded as compensation, within the meaning of that term as used in section 299 of the Government of India Act, 1935.

22. It. was contended that the provision made in sub section (2) of section 23 of the Land Acquisition Act regarding the grant of 15 percent. of the market value of the land over and above the amount of compensation as assessed under subsection (1) of that section is intended to compensate the land‑owner for his disinclination to part with his property, which is inherent in compulsory acquisition. That may be so, but the concept of compensation in the sense of equivalent in value of the property acquired does not contain any such ingredient as an essential item and, therefore, although a statute may make provision in this behalf, yet we cannot regard the grant of this extra sum as a constitutional requirement. The result, therefore, is that if a statute omits to grant this extra sum over and above the market value, it cannot be regarded) as being ultra vires of section 299 of the Government of India Act, 1935. On this view of the matter, the Amending Act of 1953, in so far as it has the effect of applying clause (2) of Paragraph 10 of the Schedule to the Punjab Town Improvement Act to acquisition of land for Satellite Towns, cannot be regarded as, ultra vires of the Government of India Act, 1935. The respondents are, therefore, not entitled to claim the benefit of subsection (2) of section 23 of the Land Acquisition Act.

23. For the foregoing reasons, the cross‑objections filed by the respondents are also dismissed. In view of the failure of both the parties in appeal and. the cross‑objections against the appeal, they are left to bear their own costs. K. B. A. Appeal and cross‑objections dismissed.