P L D 1961 (W (PLP)

This is a reference by the Collector of Karachi under section 18 of the Land Acquisition Act, 1894.

2. The form of the reference, the departure made by the Collector from the procedure prescribed by the Karachi Improve ment Trust Act, 1950, (hereafter referred to as the K. I. T. Act) by acting under the Land Acquisition Act, 1894 (hereafter called the "L. A. Act"), the new stands taken in this Court by the objectors, and the manner in which this reference has been treated in this Court, reveal that there has been a confluence of errors that were made on all sides partly owing to lack of good attention and partly owing to unfamiliarity of the lawyers with this branch of the law. The variety and number of mistakes that have been made, indicates that they were not accidental ; therefore, it will be useful to draw attention to them for future advantage. I propose to narrate the facts in order of their dates and, for facilitating their appreciation, to refer to the relevant provisions of law as well as suggest how the mistakes were made. This will be the first part of my order. In the second part, I shall deal with the objections that have been pressed before me.

3. In 1951, the Government and some prospective industrialists were desirous of quickly setting up industry. They had an area of land in mind for this purpose (see plan Exh. 1/22) which consisted of portions of Deh Sharabi, Deh Gingiare and Deh Rehri situated at a distance of about 14 miles from the City of Karachi, near the Landhi railway station. The industrialists desired to get this land and the Government was willing to help them. A meeting was, therefore, held on the 15th of May 1951, under the chairmanship of the Joint Secretary, Ministry of Industries, in which representatives of several Government Depart ments as well as of the Industrialists were present to devise ways and means for acquiring and allotting the land and for setting up industry. Exh. 2/2 is a copy of the minutes of that meeting which shows that the Chairman of the meeting directed the Collector of Karachi to acquire that part of the land which belonged to private owners: Permission was simultaneously given to those who wanted to establish industry to commence construction on that part of the land which belonged to Government institutions, and a proposal was also made to establish an Industrial, Estate on the pattern of the Sind Industrial Trading Estate. The problem of finding funds, providing residences, lighting the streets, supplying water and power were hurriedly discussed and decided upon.

4. There is no mention in the minutes of any duties entrusted to the Karachi Improvement Trust (hereafter called the "K. I. T."); although the Chairman of the K. I. T., was present at the meeting. Fifty copies of the minutes appear to have been prepared, and one of them supplied to the Board of the K. I. T., who decided, by a resolution dated the 8th of June, 1951, reproduced in Exh. 2/3, to prepare a scheme called the Town. Expansion Scheme, for the development of an Industrial Estate and a satellite town at Landhi, and to form a limited company called the Landhi Industrial Trading Estate with a board of seven directors.

5. The K. Z. T., is under the impression (see the statement of Mr. Muhammad Farooq) that the scheme was prepared by it under directions issued to it by the Central Government in terms of section 41 of the K. I. T. Act, but there is no proof of such directions; nor are directions material because the K. I. T., was itself empowered under Chapter IV of the K.

1. T. Act to prepare an improvement scheme, but what is important to note is that the K. I. T. could not acquire land except as provided ire Chapter V of the Act.

6. As I have to deal with the acquisition of land under this Chapter, it will be useful here to get a general idea of its pro visions. It consists of sections 69 to

90. Under section 69, the Board of the K. I. T. can enter into agreements of purchase, lease or exchange, and under section 70 it can acquire land in terms of the provisions of the L. A. Act with the previous sanction of the Central Government. When proceedings are taken in this manner, the functions which are ordinarily to be performed by the `Court' in terms of the L. A. Act, are performed by a Tribunal appointed under section 71 of the K. I. T. Act and the provisions of the L. A. Act, as modified in virtue of section 72 of the K. I. T. Act, are applicable. The K. I. T. accordingly proceeded in this case to acquire land under Chapter of the K. I. T. Act.

7. Before mentioning the steps that were taken by the K.I.T. to acquire land, I should state that the modifications made in the L. A. Act, in virtue of section 72 of the K. I. T. Act have far reaching effect on the amount of compensation. Three modifica tions are of special interest in this respect. Firstly, the L. A. Act has been modified by the amendment of subsection (1) of section 23 ; secondly, subsection (3) has been added to section 23, and thirdly, section 24‑A has been inserted in the L. A. Act. Sub section (3) contains clause (e) as follows : "The market value of the land shall be the value according to the use to which the land was put at the date with reference to which the market value is to be determined." The value of land is thus to be determined with reference to its use at the relevant time, and not with reference to its potentialities or demand in the market. Section 24‑A contains clause (1) as follows : "When any interest in any land acquired under this Act has been acquired after the date with reference to which the market value is to be determined, no separate estimate of the value of such interest shall be made so as to increase the amount of compensation to be paid for such land." The date mentioned in this clause with reference to which the market value is to be determined is, in terms of the modified section 23 (1), first (b), "the date of the first publication of the notice under section 45 of " the K. I. T. Act. These three provisions‑namely, section 13 (1) first (b), section 24‑A and section 23 (3) (e)‑read together, mean that the market value of land is to be determined on the basis of the use to which it was put on date of the notice issued under section 45 of the K. I. T. Act, and no separate valuation is to be A made for the period of time spent between actual acquisition and the date of such notice. The K.I.T. commenced the proceedings of acquisition by issuing a notice under section 45 of the K.

1. T. Act on the 15th of July, 1951 and inviting objections to the scheme. A copy of the notice is Exh. 2/4. Another notice was issued to the private owners of the land under section 47 of the K.

1. T. Act on the 27th of July, 1951, and individual objections to the acquisition were invited. The objections that were received are summarised in Exh. 2/7 and 2/8. They were considered and disposed of under section 49 of the K. I. T. Act. This procedure was adopted, in view of section 72 of the K. I. T. Act read with paragraph 2 of the Schedule to the Act, in substitution of the procedure pres cribed by sections 4 to 6 of the L. A. Act. At the disposal of the objections under section 49 of the K. I. T. Act the scheme remained intact and a resolution (Exh. 2/6) was passed by the Board of the K. I. T. to apply to the Central Government for the sanction of the scheme because its estimated cost exceeded one lac of rupees. The Government was entitled under section 50 of the K. I. T. Act to sanction the scheme or not and to sanction it with or with out modifications: If the scheme was sanctioned, the Board could forthwith proceed under section 51 of the K. I. T. Act to execute it by causing claims for compensation to be invited by the Collector under section 9 of the L. A. Act read with section 70 of the K. I. T. Act but the Central Government could not obtain the collaboration of its ministries to quickly sanction the scheme. This delay and a certainty of further long delay led to a review of the situation by the Board. The anxiety of the Board was justified because the Central Government was not able to grant the sanction until the 7th of March, 1958. Mr. Muhammad Farooq, who was the Secretary of the K. I. T. at that time, has stated in this Court that the legal view that prevailed at that time was as follows :‑ "At that time there were certain discussions which indicated doubt about the legality of acquiring the land prior to the receipt of final sanction of the scheme of the Government. On consultation with the Legal Adviser the decision made was that the land should be acquired under emergency clause of section 17 of the L. A. Act. This was done because the Government was pressing for early acquisition. A letter was written by the Ministry of Health and Works, Exh. 1/3, containing a directive to the Collector through the Administrator of Karachi to take action for acquiring the land under the urgency clause of section 17 of the K. I. T. Act." Further: "The advice given to us was that in the event of following the K.I.T. Act, acquisition of the land could not be completed with out the sanction of the Covernment of the scheme which meant delay and therefore the decision was to have recourse to the urgency clause. This decision was made after a discussion with the Land Acquisition Officer of the Administration of Karcahi." Instructions were, therefore,' issued by the Central Government, in terms of section 17 of the L. A. Act to the Collector of Karach' vide the letter dated 20‑10‑1951 (Exh. 1/3) to acquire land under section 17 of the L. A. Act and the Collector issued notifications and notices under section 4 (Exh. 1/25), section (Exh. 1/2), sections 9 and 10 (Exhs. 1/4 to I/11) of the L. A. Act heard the objections of private owners (Exh. 1/12 to Exh. 1/21) and gave his award in terms of section 11 of the Act on 20‑4‑1954

9. The reason why recourse had been taken to section 17 of the L. A. Act is that more speedy procedure is prescribed by this section then section 16 of the Act. Under subsection (1) of section 17, the Collector, can take possession of waste or arable land without hearing objections of private owners and without making an award, merely after waiting for 15 days from the notice prescribed by section 9 of the Act:

10. In this case, the procedure up to the point of hearing and disposal of objections (under section 47 and section 49 of the K.

1. T. Act, section 5‑A of the L. A. Act) had been followed by the K. I. T. before directions were issued to the Collector by the Central Government to proceed under section 17 of L. A. Act. All that had remained to be done was (a) a declaration under section 6 of the L. A. Act that the land was required for a public purpose, (b) issuance of a direction to the Collector to take possession of the land under section 17 of the L. A. Act, and (c) taking the possession of demarcated area on the expiration of 15 days from the notice mentioned in section 9 of the L. A. Act, but the Collector and the Cential Government did not realise that there was no need to repeat the procedure laid down in section 4 of the L. A. Act or to exclude the procedure prescribed by section 5‑A of that Act because it had already been followed. The Collector has thus unnecessarily repeated the procedure prescribed by section 4 of the L. A. Act (see paragraph 8 above) and the Central Government has unnecessarily excluded the application of section 5‑A (vide the Notification Exh. 1/25 which was drafted by the Central Government and sent as an annexure to Exh. 1/3). This unnecessary repetition and curtailment of procedure. has led to an argument in those proceedings by counsel for the objectors that the land has not been acquired by the K. I. T. and that as such the modifications introduced by subsection (3) of section 2? and clause (1) of section 24‑A of the L. A. Act in respect of valuation (see paragraph 7 above) are trot applicable to these proceedings.

11. A large number of private owners whose land has been acquired have accepted the award but about a dozen and a half have objected to it by making 12 applications to the Collector under section 18 of the L. A. Act for reference to this Court. Under this provision they could only object to‑ the measurement of the land, the amount of compensation awarded to them, the persons to whom compensation was made payable and the apportionment of compensation, but most of the objectors who are members of the Parsee community, have under the leadership of Rustom Fakirjee Cowasjee,, alleged breach of‑ faith by Pakistan against the minority community of Parsees. They have expressed their resentment at compulsory acquisition of land as denial of the rights of landlords and have advocated the policy of free trade. Those who have followed his leadership have gone to the length of " saying: "Our main objections on principle are that according to the promises given by the Founders and Builders of Pakistan from Platforms and by declarations on the Floors of the Constituent Assembly, the rights of the Minorities were considered to be their "SACRED TRUST" and they were not to be flagrantly violated as is being attempted to by the application of Land Acquisition Act. We furthermore object on behalf of ourselves and all the Parsi holders of land in the affected area that there is no such urgency to warrant possession of lands being taken before settling the compensation due to the landlords as : all said and done it is not for some Military urgency or for reasons of some heavenly disturbance or for immediate construction of a Railway. or an airfield that these plots of land are required: Although the Act may give certain powers to the Government it was never intended that Government should misuse such powers and deprive the rightful owners of their lands in such unceremonious manner without real urgency being in existence to warrant such a course." They have omitted to produce evidence before the Collector, and their leader has sent similar protests as are reproduced above to the highest authorities ; but whether they intended to non‑co operate with the Government for communal greed, which was given the shape of a political demand, or criticised the policy of interference with private ownership on the principle of laissez‑faire is irrelevant, because I am to be guided by the provisions of section 18 of the L. A. Act.

12. Neither the Collector nor the objectors have given proper attention to the provisions of the statutes. The Collector' reference ought to have contained the information required by section 19 of the L. A. Act to be included in it but those provisions have been hardly sit all complied with. Moreover, the reference is addressed to the. Registrar, High Court of West Pakistan (Karachi Bench), although section 18 of the Act mentions "Court" which is defined in section 3 (d) of the Act as: " . . a principal Civil Court of Original Jurisdiction . . . " The District Court of Karachi is a Civil Court of original jurisdic tion competent to entertain proceedings upto the value of Rs. 25,000 and some of the objections at least which have been raised by the objectors against the award were of lower value than this amount. A suggestion was, therefore, made at the bar the objections should have been referred by the Collector to the District Court. Counsel for the Collector had no answer, and the order made. by S. A. Haq, J., in Civil Revision No. 36 of 196 could be said to support the suggestion, but there is no reference in his order to section i 1 of the K. I. T. Act, which lays down that a Tribunal is to discharge the functions of a `Court' in those cases in which land is acquired for the K. I. T., as in this case. In the absence of the appointment of such a Tribunal, the "Chief Court of Sind on its Original Side" is to function as the Tribunal in virtue of the definition of `Tribunal' contained in section 2 (e) of the K. I. T. Act. As a Tribunal has not been appointed, reference of the objections to this Court on its original side is in order.

13. This, reference ought to have been registered as a reference under the L. A. Act on the Original Side of this Court, but this has not been done. Firstly it was registered as, a "Judicial Miscellaneous Application" made under a Special Act and was attended to by the Appellate Branch of this Court. Constantine, J. pointed out, in another connection, that references ‑made under the L. A. Act were in the nature of suits. His remarks was mis understood and this reference was registered as a suit on the Original Side of this Court. When his remark came to my notice I pointed out the mistake but owing to some misapprehension this L 'reference has continued to be treated as a Judicial Miscellaneous Application. One result of this treatment has been that notices were issued to the objectors to show cause against the appli cations" and in consequence fresh objections were submitted by the objectors in this Court, although they could not according to some Judges even urge fresh grounds in terms of sections 18 to 20 of the L. A. Act much less could they raise new objections in this Court. The notices ought to have been issued in terms of section 20 of the L. A. Act, merely "specifying the day on which the Court" was to "determine the objections" that had been referred to this Court by the Collector.

14. This brings me to the second part of my order, which is the disposal of objections: The new objections taken by the objectors in this Court and some of those objections which were raised by them before the Collector are to be disregarded for two reasons: "Firstly, because new objections could not be raise in this Court. See in this respect Pramaiha Narh v. Secretary of State A I R 1930 P C 64 ; Promotha Narh Afullick v. Secretary State A I R 1924 Cal. 1036.(2) ; Gujapati v. Annapurnamma A I R 1941 Mad. 660 and Land Acquisition Officer v. Hiranand A I R 1941 Sind

152. Secondly, because some of the objections that were raise before the Collector fall outside the scope of section 18 of the L. A. Act. For instance, the validity and propriety of the order of acquisition cannot be challenged in these proceedings. The proper forum for that purpose maybe a Civil suit or a writ petition, but not objections and references under section 18 of the L. A. Act. See in support of this view British India Steam Navigation Co. v. Secretary of State for India I L R 38 Cal. 230 , Dinshaw v. State of Hyderabad A I R 1955 Hyd. 203."

15. Twenty‑two issues were framed by A. S. Farooqui, J. on all the objections but Mr. Zahoorul Haq and Mr. Qazi, whose arguments have been adopted in these proceedings by all other counsel, have in view of the relevant provisions of the law confined their address in this Court to three contentions only. They are, (i) That the amounts of compensation awarded by the Collector for agricultural land were wrong because satisfactory evidence was not before him and because wrong principles were followed by him ; (ii) That the area of survey No. 40 of Deh Gangiaro as stated , in the award is wrong ; (iii) That Mrs. Baimai Shavaksha has, contrary to the statement contained in the reference, not . accepted the award and, therefore, the above objections, which have been raised on her behalf also, should be considered relating to her share of the land.

16. The third contention should prevail because the lady had in writing objected to the award, vide Exh. 1/3, one day before receiving the amount offered to her and has stated in Court that the had received it under protest.

17. As to the second contention, I should point out that the award is to be taken as correct until this presumption is, demolished : See Assistant Development Officer, Trombay v. Tayabalh Allibhoy Bohori (A I R 1933 Bom. 36), Secretary of State v. Fauja Singh and others (A I R 1934 Lah. 97) and Ananta Ram Bannerji v. State (A I R 1937 Cal. 680). Nobody has stated in this Court, not even R. F. Cowasji, that the area of this plot of land is more than nineteen acres. and seven ghuntas. Mr. Qazi has criticised the correctness of this area on two grounds : Firstly, that it has been taken by the Collector to be correct on the basis of a report of the Mukhtiarkar said to have been prepared by, him, from the entries of the record of rights, but copies of those entries were not placed on the Collector's record and, therefore, the Collector's award cannot be regarded as based on sound evidence. The initial onus of disproving the award is on the objectors, but the onus probandi varies in proportion to the probative value of the Collector's inquiry, as pointed out in Fink v. Secretary of State for India (I L R 34 Cal. 599), therefore, some slight evidence against the correctness of this area should be sufficient to disapprove it. Secondly, the sanad, Exh. 1/29, dated 4‑10‑1917 is good evidence to prove the area to be 24 acres 2 ghuntas. The first argument is sound, but the shcona is not, because the area stated in Exh. 1/29 could have changed during 33 years for a variety of reasons. It is too old a document to prove the area as it existed at the time of acquisition. The objectors could easily produce copies of entries from the revenue records relating to the material date, but they have not done so. There is thus a presumption against them. The objection is overruled.

18. The first is the most important of the three contention and has been elaborately discussed by Mr. Zahoorul Haq and Mr. Qazi. Mr. Zahoorul Haq opened his attack by contending that the Collector has wrongly applied the Land Control (Capital of the Federation) Ordinance, 1948 (Ordinance XXVI of 1948) which is not applicable to the facts of this case. Counsel for the Collector conceded at the outset that the Collector was mistaken in this respect because the land in question was not included in the "specified area" as defined by section 2 of the Ordinance. Mr. Zahoorul Haq and Mr. Qazi then pressed their contentions that the principle of valuation introduced in the L. A. Act by the K. I. T. Act were not applicable to this case because they apply when land is acquired "by" the K. I. T. They contended that the provisions of clause (e) of subsection (3) of section 23 and section 24‑A of the L. A. Act (reproduced above in paragraph 7) Which were introduced in the statute in virtue of section 72 (a) of the K. I. T. Act for prescribing a new measure of valuation were not applicable to this case because the land was not acquired "by" the Board of the K. I. T. in terms of section 70 read with section 72 (a) of the K. I. T. Act but by the Collector "for" the Board of the K. I. T. under the L. A. Act in pursuance of an .order issued to him by the Central Government vide Exh. 1/3. In consequence, compensation could not be determined with reference to "the use to which the land was put" at the relevant date. In the first part of this argument emphasis is impliedly laid on the language of section 70 of the K. I. T. Act, which is as follows: ‑ "The Board may, with the previous sanction of the Central Government, acquire land under the provisions of the Land Acquisition Act, 1894, for carrying out the purposes of this Act." Under it the "Board may acquire land" but there is nothing in it to make it necessary that the acquisition proceeding be taken by the Board of the K.

1. T. itself. It is true that the opening sentence of section 72 of the K. I. T. Act contains the words "by the Board," as follows: ‑ "acquiring of land by the Board under the Land Acquisition Act, 1894," but these words merely refer to acquisition of land by the Board and do not make it necessary that the acquisition pro ceedings be held by the Board itself. Such a provision could not be made because the function of taking proceedings to acquire the land is of the Collector. It is to be noted that subsection (1) of section 71 of the K. I. T. Act and section 24‑A contain the expressions "acquisition of land for the Board" and "any land acquired for the Board." The Board had the desire to urgently acquire the land and acquisition proceedings were urgently taken by the Collector of Karachi under section 17 of the L. A. 'Act in pursuance of the directions given by the Government, vide Exh. 1/3 to do so. There was thus acquisition of land "by the Board" as well as "for the Board."

19. The directions issued to the Collector in Exh. 1 /3 have served the purpose of "the previous sanction" of the Govern ment contemplated in section 70 of the K. I. T. Act. Mr. Zahoorul Haq has contended that they do not constitute such a sanction because there is no reference in them to section 70, and because the Secretary to the Board has stated that the sanction which had been asked for under section 49 of the L. A. Act was meant to serve as the sanction contemplated in section 70 of the K. I. T. Act. That sanction came in 1958 (vide Exh. 2/9), long after the acquisition proceedings had commenced ; therefor, according to counsel, there was no such sanction as is required under section 70 of the K. I. T. Act. I do not think that the Secretary's interpretation is right ; nor do I think that it was necessary to make a reference to section 70 in the request for sanction or in the sanction itself, because there is no prescribed form which makes this necessary. The approval of the Central Government given before the acquisition of land is enough. It is clear from the record that the Central Govern ment desired to acquire the land for the scheme of the K.

1. T. The notices issued by the Collector under sections 4 and 6 of the L. A. Act (Exhs. 1/25 and 1/2) make this clear. More over, the direction contained in Exh. 1/3 also stated : "That the Government of Pakistan have decided that about 320 acres of private land marked on the plan enclosed herewith should be acquired under the urgency clause of the Land Acquisition Act, 1894 by the Collector of Karachi for the Karachi Improvement Trust in connection with their Landhi Town Expansion (Industrial Area) Scheme." The reference in the above quotation to "their Landhi Town Expansion (Industrial Area) Scheme" is significant. The land was acquired after the above direction‑cum‑sanction was issued by the Government. It is immaterial that the Secretary has not relied on it in his evidence, or that the sanction on which he has relied is not satisfactory. If I am right in this view, then compensation should be fixed on the principles contained in clause (e) of subsection (3) of section 23 and section 24‑A o f the L. A. Act, 1894, subject to the consideration of two more arguments‑one advanced by Mr. Qazi and the other by Mr. Zahoorul Haq‑both of which were aimed at criticising the procedure in order to exclude the application of these provisions.

20. Mr. Qazi has argued that the Collector had take completely fresh proceedings under the L.A. Act and that, therefore, section 72 of K.

1. T. Act cannot be invoked now. Counsel has argued that the Board of the K. I. T. bad commenced proceedings under sections 45, 47 and 49 of the K. I. T. Act but abandoned them; therefore, fresh proceedings were so commenced by the Collector for the purpose of section 17 of the L. A. Act as to have nothing in common with the previous proceedings. A reference to this contention has been made before (para. 13 above). It has no substance because it is based on two minor facts only. The first is that the Govern ment directed under section 17, (4) of L. A. Act that the provisions of section 5‑A of the L. A. Act were not to be applied although the procedure prescribed by sections 47 and 49 (1) of the K. I. T. Act had been completed. In this respect I should point out that since the proceedings taken under sections 47 and 49 (1) of the K. I. T. Act which were equivalent to the proceedings prescribed by section 5‑A of the L. A. Act had been completed before the proceedings were commenced by the Collector ; the direction issued under section 17 of the L. A. Act that the provisions of section 5‑A of the L. A. Ac were not to apply made no difference. Apart from the pro ceedings taken under sections 47 and 49 (1) of the K. I. T. Act, very little had been accomplished up to the, time from which the Collector commenced proceedings. If all that had been done up, to that time had been fully utilised by the Collector, then he could only omit to issue a notice under section 4 of the L. A. Act (Exh. 1/25) in view of the notice (Exh. 2/4) that had already been issued under section 45 of the K. I. T. Act. The notice issued under section 4 of the L. A. Act is the second fact on which counsel has laid emphasis in support of his contention that the Collector bad acted independently of the K. I, T. but the argument does not prove the point because in terms of paragraph 2 (1) of the Schedule to the K. I. T. Act the notice issued under section 45, K. I. T. Act (Exh. 2/4), being the earlier notice, was effective and the over‑lapping notice (Exh. 1/25) of subsequent date was of no effect. These two discrepancies were the result of abundant caution, and nothing else

21. Mr. Zahoorul Haq has argued that the law of acquisition of land being one of expropriation it should be interpreted liberally in favour of private owners and strictly against the acquisition authorities. He has referred to Qamar‑uz‑Zaman Khan v. Punjab Province (P L D 1955 Lah. 612) and Manzoor Ellahi v. State (P L D 1960 Kar. 607) in support of his contention that interpretation should be strict and has relied on the following passage from District Labour Officer v. Yenkatasubrahmanya Sastri (A I R 1931 Mad. 50), in support of his further contention that the benefit of any doubt in interpreting the provisions of procedure should be given to private owners : "If there is any real dubiety in interpretation in matters of procedure in the Land Acquisition Act, the benefit of the doubt ought to be given to the party." This is a principle to be kept in mind, but firstly, there is no doubt about the validity of procedure in this case and; secondly, questions as to the validity of procedure are not appropriate questions to be raised. in a reference made under section 18 of the L. A. Act. Counsel did explain that he did not wish the proceedings to be declared invalid, but was merely arguing that the provisions of section 70 and section 72 of the K. I. T. Act had not in fact been utilised and that, therefore, the principle of section 23 (3) (e) and section 24‑A of the L. A. Act, which are applicable only if section 70 and 72 of the K. I. T. Act are applied, should be excluded from consideration. His criticism of the procedure, just like the criticism made by Mr. Qazi, is nevertheless in the nature of an attack on the regularity of the proceedings. Moreover, neither the defects on which counsel have dwelt nor the contention in support of which they have been emphasised are included in the objections that were submitted to the Collector and, therefore, strictly speaking, they are a doubtful subject‑matter of this reference in terms of sections 18 and 2 of the L. A. Act.

22. I need not say more in this respect because in my view,' sections 70 and 72 of the K. I. T. Act have been duly acted upon and fully complied with. Mr. Zahoorul Haq has next contended that on the principle of section 23 (3) (e) of the L. A. Act the price at which Maulvi Karamatullah had purchased the land on the 7th of August 1951, vide Exh. 1/24, about a month after the notice (Exh. 2/4,) dated 15‑7‑1951 that was issued under section 45 of the K. I. T. Act should be accepted to be the market price, because his intention to use the land for industrial purpose should be taken to be the use of the land during the period in which he waited to implement the intention. He has cited Salim Ullah v. Province of West Pakistan (P L D 1960 Lah. 450) and Land Acquisition Collector, Rawalpindi v. Wajid ' Ali Khan Bukri (P L D 1960 Lah. 469 (484)) to interpret the provision. It is clear from these judgments that the words :‑ "that market value of the land shall be the value according to the use to which the land was put at the date with reference to which the market value is to be determined", in which section 23 (3) (e) is couched, do not mean that there is no value of a piece of land if it did not at all yield income on the relevant date, but Shabir Ahmed, J., appears to go further in Wajid Ali Khan Barki's case and lay down that the intention and purpose of the owner are relevant to determine the value of land according to its use. He has observed as follows :‑ "Suppose there are three contiguous plots of land measuring one acre each. One of them is used for agricultural purposes, one is used as a fruit‑growing garden, while the third is not put to any use because the owner intends to build a house on it. The first of these plots is being used as agricultural land, the second is used as a garden and the third as a'site for building a house. If land situate near a town is not being used, for agricultural purposes and is proved to have been o bought for the purpose of building thereon, it cannot be treated as agricultural land for the purposes of the compulsory' acquisition and has to be treated as a building site, and it is treating the land of Lt. General Wajid Ali Khan Burki as a building site that the Collector fixed the amount of com pensation payable to him." The Privy Council has expressed its views on the provision in Babu Kailash Chandra v. Secretary of State (73 I A 131), as follows :‑ "It would appear that, in the view of the Full Bench in Makhan Das's case I L R 50 All. 470, neither a plot of land used by its owners as a garden at the relevant date, nor a plot of agricultural land lying fallow at the relevant date, is being put to any `use' within the meaning of section 23, because the owner is deriving no profit therefrom ; consequently, in the view of the Full Bench, the owner is not entitled to any com pensation on its compulsory acquisition. Their Lordships are unable to assent to this view. On the true construction of section 23 the former plot ought to be valued as a garden and the latter plot ought to be valued as agricultural land. The effect of section 23, subsection (3) (a) of the Act of 1894 as so amended is that the possibility of the garden or agricultural plot being used (e.g.) for building purposes in the future must be disregarded."

23. The learned Judge appears to have taken the view that the intention of the owner and the purpose for which a piece of land is purchased may be deemed to be the use to which it was put, if it was not actually put to any other use at the material time, but the Privy Council did not go as far as that. It has pointed out only that receipt of profit was not material ; there fore, agricultural land was to be treated as such even if it was lying fallow. With respect, I concur with and follow the view of the Privy Council.

24. Its effect on this reference is that the land which has been acquired is to be treated as agricultural land and valued as such irrespective of the possibility of its use as an industrial area or a building site. It is, therefore, immaterial that lease of a part of this land was granted vide Exh. 1/26, by the Government as a site on which buildings could be erected or that the agree ment, Exh. 6/2, contains a recital of the permission to build superstructures on the land or that industry was being set up and developed in the surrounding area.

25. The objectors have produced evidence to prove the prices at which transactions relating to this land were made. It consists of three completed transactions and two offers which were not accepted. The completed transactions are : Exhibit 6/2.‑Agreement of sale dated 18‑11‑1913 of 4 acres of land situated in Deh Sharabi for Rs. 5,001, i.e, about Rs. 1,111 per acre. Exhibit 6/3.‑Agreement of sale dated 19‑9‑1921 of land situated in Deh Gangarxs at Rs. 800 per jireb, or Rs. 1,600 per acre. Exhibit 1/24.‑‑Sale‑deed dated 7‑8‑1951 of land situated in Deh Sharabi at Re. 0‑13‑0 per sq. yard or about Rs. 3,933 per acre. The agreements (Exhs. 6/2 and 6/3) are very old. Moreover, their contents show that the object of the intended sales was building superstructures on the land. The sale‑deed (Exh. 1/24) shows that the chances of the land being used as urban property had become so certain that its price was calculated per square yard which, according to Mr. Muhammad 17mar Memon, Land Acquisition Officer, K. D. A. is not the normal manner of calculating the price of agricultural land. As the element of expectation is to be disregarded, the value stated in these documents is to be substantially reduced for being taken to be the value of agricultural land.

26. There are other weaknesses also. For instance, there is no document to prove that sales took place in pursuance of the agreements of sale. The sale (Exh. 1/24) was brought about by Ali Muhammad broker, who has described his own business and the transaction as follows : "I am able to arrange one transaction or two transactions in a year. I do not maintain any record of the transactions brought about by me. I have not paid income‑tax as a broker as some of those only who are known to me employ my services .... The seller was a friend of Moulvi Karamatullah, and had sold the land just for nothing." 'Moreover', the broker and another witness, who is a son of the purchaser have stated that the purchaser had received an offer for the land purchased by him at the rate of Rs. 1‑8‑0 per square yard but that it was turned down because :‑ "this offer was made in 1951 but we did not sell the land because we expected higher price in view of the development which was taking place in the surrounding area." This information suggests that the hope of industrial develop ment was prominent in the transactions which took place about this time.

27. The other offer was made by S. A. Qureshi of Karachitta Syndicate Ltd., vide his letter Exh. 3/4 dated, 4‑2‑1951 to buy land situated in Deh Sharabi from one of the‑ objectors, namely, D. H. Sachinwala, at the rate of Rs. 2 per square yard. This offer. it is said, was not accepted and Rs. 3 per square yard were demanded. Exh. 3/4 has, b.‑en taken on record subject to the objection of counsel for he Collector that it was not produced before the Collector ; nor was it produced in this Court until it was shown to the witnesses of the objectors for proving it without producing its writer on the excuse that he was ill. The manner in which the document has been produced and proved is not convincing. The value of the offer is further reduced because there is no explanation why the purchaser offered that exorbitant price. If the reason was that he intended to use it for industrial purposes, then these considerations are to be disregarded for reasons stated above. That buyers can be actuated by various motives for making offers cannot be denied, but in this case the influence of motives is glaring because the price stated in the sale‑deed, Exh. 1 /24, dated the 7th of August, 1951, is 0‑13‑0 per square yard, whereas the price offered in the letter Exh. 3/4 dated 4‑2‑1951 for land situated in the same village is Rs. 2‑0‑0 per square yard. If Rs. 2 per square yard was the real price, then sale would not have been made in August, 1951 for 0‑13‑0 per square yard. In these circumstances, I attach no importance to Exh. 3/4 and the alleged offer of Rs. 1‑8‑0 per square yard.

28. The two offers are, therefore, of no value, but the three transactions proved by Exhs. 6/2, 6/3 and 1/24, have to be more carefully examined in spite of their weaknesses and. their effect is to be assessed.

29. Before doing so, I may mention that the Collector has referred in his award to a few transactions of 1948, 1949 and 1950, but ‑the evidence of those transactions cannot be said to be on this record because the proceedings of the Collector do not form a part of this record. This is obvious, but I would refer to Assistant Development Officer, Trombay‑ v. Tayaballi Allibhoy Bohori and point out that the Collector's inquiry is an executive act and his award merely the offer of an accredited agent of them State, whereas these proceedings are of judicial nature, conducted by this Court in exercise of special jurisdiction as a statutory tribunal within the meaning of section 2 (e) of the K. I. T. Act.

30. How then is the effect of the three transactions to be assessed. To answer this question, let me begin by noting that according to the award the value of the land in Deb Sharabi and Deb Gangario is Rs. 803 per acre, and in Deb Rehri is Rs. 701 per acre, and by asking the question whether this valuation can be correct in the circumstances that land was agreed to be sold in Deb Gangario vide Exh. 6/3 in 1921 at; the rate of Its. 1,600 per acre when there were no prospects of the industrialisation of the area and that it was actually sold in. Deb Sharabi at the rate of 0‑13‑0 in 1951, vide Exh. 1/24 when the prospects of industrial development had become a certainty ? The proof (i.e. Exhs. 6/3 and 1 /24) is weak, but I have to. keep in mind that clear cut Evidence of the price that prevailed at the material time is often not available, nor are the recognised methods of assessing the price often accurately applicable to given circumstances ; nor is it expected that value should be assessable with precision. I shall, therefore, try to assess the value which may be as just and accurate a guess in the existing circumstances A as I can make. It is a part of this process that the situation should be viewed as a‑ whole, that the recognised principles of law and valuation should be applied as far as possible and that there should be a tendency to be liberal towards those whose property is taken from them against their will. It will be useful here to explain the nature of this method by reproducing two passages from Assistant Development Officer, Trombay v.Tayaballi Allibhoy Bohori. One of them at page 364 is as follows :‑. "It is no doubt true that the valuation of immovable property is not an exact science. As Macleod, C. J., said in his judgment in Frenchman v. The Assistant Collector, Havel! A I R 1922 Bom:‑399, (24 Born. L R: 786) :‑ `. . . the very best efforts of an export or a Court to fix a market value for a property like this can never amount to much more than a quasi‑scientific gaess, which the Court should in the case of compulsory acquisition temper with liberality.' But I can call in aid the general tenor of the judgments of that learned Judge in land acquisition cases to support me where I say that the Court is bound to treat the matter judicially as far as possible and it should only guess when science or commonsense will not point to a definite conclusion. The Judge ought to be liberal in the sense that he should not be too meticulous or pedantic in dealing with the evidence. The value of property should not be unduly depreciated in order, that Government may acquire as cheaply as possible, and seeing that an exact calculation to annas and pies is usually impossible, the Court is justified in taking a broad, view as favourable to the owner as the evidence permits." The other at page 363 is as follows :‑ "I may mention also section 24,. Land Acquisition Act, in which it is provided‑ that the Court shall not take into con sideration inter alia any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired ; or any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put. Nevertheless I doubt if anything can be found in these authorities which would justify the conclusion that post‑notification transactions must necessarily be ignored altogether. All transactions must be relevant which can fairly be said to afford a fair criterion of the value of the property as at the date of the notification. If any considerable interval has elapsed the Court will naturally attach little or no value to subsequent sales, just as transactions long prior to the notification will usually be discarded."

31. I am prepared to concede that price of land has increased after 1921 irrespective of whether it was Rs. 1,600 per acre in that year or less. That it has increased is illustrated by the sale of land at 0‑13‑0 per square yard, vide Exh. 1/24, dated 7‑8‑1951 and by the fact that the K. I. T. has itself valued the land as stated in the award, at Rs. 1,210 per acre. The bare fact that so high a price as 0‑13‑0 per sq. yard was paid in August, 1951 makes it .incumbent, (irrespective of the irrelevant considerations that were involved in the sale), that the land should not be acquired in the same year ‑for less than Rs. 1,210 per acre. . The precise question, therefore, is not as to‑what was the market price but how much more than Rs. 1,210 it was on the material date.

32. The Collector was mistaken as to the material date. According to him, 31‑3‑1948 was the date in terms of section 4 of the Land Control (Capital of the Federation) Ordinance, 1948, but that statute is not applicable, as pointed out above, and that, therefore, the material date in terms of section 23 (1) first (b) read with section 72 and paragraph 7 (1) of the Schedule to the K. I. T. Act is, 15‑7‑1951, because that is the date of the notice, Exh. 2/4, which was issued under section 45 of the K. I. T. Act.

33. The difference between Rs. 1,210 (the price conceded by the K. I. T.) and Re. 0‑13‑0 per sq. yard or Rs. 3,93 3 per acre (the price which the land has actually fetched) is striking. The explanation is that there were irrelevant considerations owing to which 0‑13‑0 per sq. yard were paid, but can the entire difference between the two prices be attributed to those con siderations, Mr. Zahoorul Haq has argued that the price could not have been paid in the hope of future development because the transaction took place a month after the notice was given under section 45 of the K. I. T. Act. Such a notice necessarily carries with it the threat of compulsory acquisition and, therefore, it scares the purchasers away rather than encourages them to pay more than the normal price. The price that has been paid should, therefore, be taken to be the normal price. The argument has some force, but is not entirely true to facts because there is no other transaction previous to the notice which comes anywhere near the price for which the sale was‑effected by Exh. 6/3. The force that 1 concede to the argument is that the purchaser, who was a Minister of a State and presumably was aware of the notice, could not have paid the high price owing to the future prospects only without any relationship between the price which he paid and the prevailing market price of land as agricultural land. Applying the test of reasonableness of risk that a man of ordinary prudence would be prepared to take, I conclude that‑the purchaser who brought the land a month after the notice, Exh. 2/4, could not have taken the risk of losing more than 50 to 60 per cent. of the price paid by him in the event of the land being acquired in pursuance of the notice. In other words, he may have paid about the double of the normal price of the land. The normal price of the land situated in Deh Sharabi, therefore, was between rupees 16 hundred and 2 thousand per acre. I fix its market value to be Rs. 1,800 per acre. The value in Deh Gaugario should be the same. Counsel have not disputed that the land situated in Deh Rehri is of lower value. I, therefore, fix its market value to be Rs. 1,700 per acre. I allow interest under section 28 of the L. A. Act at the rate of six per cent. per annum on the sum allowed by me in excess of the sum awarded by the Collector from the 19th of June, 1952 on which date he took possession of the land up to the date of payment of such excess, and fifteen per cent, interest on the market value in consideration of compulsory nature of acquisition in terms of section 23 of the L. A. Act. A. H. Order accordingly.