1980 PLP 687 (CLC)

Date of hearing : 26th June 1979. This order shall also dispose of Writ Petition No. 839/69 involving the same question of law. Both the petitions are directed against the order dated 28th January 1967, by which the Tribunal enhanced the amount of compensa tion from Rs. 101 per marla to Rs. 235 but did not allow the demand of the petitioners.

2. Respondent No. 1 acquired 99 kanlas 6 marlas and 140 Sft. of land to Basti Bela Ram, for construction of New Fruit Market in pursuance to the notification dated 21st May 1962, issued under section 4 of the Land Acquisi tion .Act, 1894. That included au area measuring 12 kanlas, 12 marlas 179 S. ft. owned by the petitioners. Some other area belonged to the other petitioners in W. P. 839-69. The Land .Acquisition Collector (hereinafter referred to as the Collector) awarded a sum of Rs. 101 per marla vide award dated 31st March 1964, in addition to 15of the value for compulsory acquisition An interest at the rate of 6 % was also allowed from 22nd June 1962, the date of taking possession, up to the date of actual payment

3. The petitioners filed appeals before the special Tribunal constituted for the purpose. The Tribunal after hearing the parties and going through the record, came to the conclusion that the compensation awarded by the Collector was low. It, therefore, raised the figure to Rs. 235 per marla vide its order dated 28th January 1967. It is to be notes that the claim of the petitioners in this case was Rs. 2,700 per marla.

4. It is contended by the learned counsel that the Collector proceeded to assess compensation on the basis of subsection (3) of section 23 of the Land Acquisition Act, at; added to it by an amendment in section 66 of the Town Improvement Act, read with its Schedule. It was argued that as the said provision of law had been declared ultra vires by a Division Bench of this Court ii M. Salim Ullah v. Province of West Pakistan (P L D 1960 Lah.450). the award was bad to law. Reliance was also placed on Province of West Pakistan v. M. Salim Ullah (P L D 1966 S C 547) to say that the said view of the Division Bench of this Court was upheld by the Supreme Court also.

5. The learned counsel for the other petitioners in Writ Petition No. 839/69 submitted in addition that as the land had been acquired under the Land Acquisition Act the assessment of compensation under the Town Im provement Act was unlawful. He supported this submission from Collector Quetta-Pishin v. Habibullah (P L D 1970 Quetta 35). He further pleaded that the Collector ought to have taken into consideration the potentialities of the area also.

6. Mr. Farooq Zaman, the learned counsel for the respondents, raised preliminary objection that as Abdul Aziz had died during the pendency of hearing, this petition abated and, therefore, stands disposed of as such. While making this submission he relied on a statement made by the learned counsel for the petitioners on the previous date of hearing. It was clarified on behalf of the petitioners that death took place in December 1972, i.e. after the Law Reforms Ordinance and so there could be no abatement. As onus of abatement would be on the respondents and as the learned counsel has not relied on any evidence to show that the death took place earlier, I am not in a position to throw out this case on that ground.

7. The next submission made on behalf of the respondents was that as the plea, that amendment 23(3) as referred to 'above is ultra vises, had never been raised before, the same cannot be allowed to be taken up at this stage. He relied on Ghulam Mohiuddin v. Chief Settlement Commissioner (P L D 1964 S C 829), Muhammad Hussain v. Fazal Karim (P L D 1969 Lah. 694) and Syed Mu_affar Ali Shah v. Settlement Commissioner (P L D 1969 Kar. 506) in this regard. None of these judgments apply to the resent case. It is well-established legal position that it is the duty of the Court to apply correct law whether the point has beer, raised before it or not. Reference be made to Ghulam Muhammad Khan v. Settlement & Rehabilitation Commissioner (1972 S C M R 359) and Abdullah Khan v. Nisar Muhammad Khan (P L D 1965 S C 690). No commissioner on the part of a litigant may, therefore, relieve the Court duty to apply the correct law. The judgments referred to by the learned counsel hold that relief may be refused in certain circumstances where a party did not raise the question. Reliance is also placed on the following observations in Muhammad v. Board of Revenue (P L D 1967 S C 314) at pages 316-17' "If that were to be accepted as a good ground for denying to the subject the benefit of Article 98 actions in excess or perversion of public powers could gain enormous access of. immunity. Like the law-and order administration. the revenue administration, in its impact on the cultivator has all-pervading authority which the indivi dual cannot be elected to comfort, on allegations of illegality on his own strength. The usual and the wise course that he takes is to submit for the time being, and seek his redress through the more powerful agency of the Superior Courts. These Courts have now been specifically empowered to provide such relief. They cannot be permitted to distinguish that authority by the imposition of such a condition as that which the learned ,fudges have poked in. this case."

8. Another passage from the case of Tufail Muhammad v. Abdul Ghafoor (P L D 1958 SC (Pak.)201) at page 209 may also be reproduced below "Halsbury's Laws of England, Second Edlv 1397 defines the cases where a writ of prohibition may issue. `Prohibition lies not only for excess of or absence of jurisdiction, but also for the contravention of some statute or the principles of the common law'. In Farquharson v. Morgan (1894) 1 Q B 552, it was held that where total absence of jurisdiction appears on the face of the proceedings in an inferior Court, the Court is bound to issue a prohi bition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior Court. The `: reason why, notwithstanding such acquiescence' a prohibition is granted where the want of jurisdiction is apparent on the face of the proceed ings, is explained by Lord Denman in Badenhcm v. Ricketts 6 M & M 170, to be for the sake of the public, lest `the case might become a pre cedent if allowed to stand without impeachment and to this dictum Lord Lopes, L. J. added because it is a want of jurisdiction of which the Court is informed by the proceedings before it, and which the Judge should have observed, and of which be himself should have taken notice. It may, be remarked that no question of laches or acquiescence ever arose in this case."

9. As regards Writ Petition No. 839/69, the learned counsel as said it on, the ground of Caches. He submitted that the order of the Tribunal was passed on 25th July 1967, whereas the writ petition had been filed on 31st May, 1969. He further submitted that though a review had been filed but the same did not lie in law, and hence no allowance of time can be given on that score. He added that in any case the review was dismissed in default on 11th January 1968, and an application for restoration also failed on 21st September 1968.

10. The petitioners have failed to offer any plausible explanation for the delay in filing this petition (Writ Petition No. 839-69). A remedy of review is not available unless one is provided by law as held in Alst. Zainab Khatoon Mian Ghulam Shabbir (P L D 1965 S C '55). No review being available in such a situation can be given for it. In view of that the petition is likely to fail shot ground, 11. for the mum point, it is to a noted that though the Collector did mention the amendment referred to above, yet he did not follow that in to his conclusion. He considered the entire evidence before him and reasons why he was not following some of the transactions relied upon his conclusion he relied on only one transaction out of those produced fore him. The relevant portion of his order ma 'be reproduced withstanding. "As regards the 'valuation of land, it appears appropriate to make only these transactions which relate to the area in the close proximity to the scheme area as the basis of assessment of market value of the scheme land. Since the transaction recorded at serial 15 relates to the piece of land which is located in the scheme area itself, I am inclined to take the average of this transaction as most relevant for the assessment of the price of tile scheme land. This transaction also warrants particular consideration since it relates to the period nearest to material date, i.e. three days-earlier and thus tends to give the texture of prices prevailing at the time of acquisition. According to this transaction the average sale price per marla works out to Rs. 100.60 p.m. In the above circumstances the compensation for the land in question is awarded at the flat rate of Rs. 101 p.m. on the basis of its market value."

12. A cursory glance at the mutations tabulated in the Collector's award would show that only two of those related to the land included in the scheme under consideration. Most of the other transactions are not only for very smaller areas but the land involved in those is situate at a distance of 400 to 875 feet. The mutations referred to in the award at other places are at much longer distances and are particularly situate on the southern side, i,e. the built up area. The Collector, however, considered the situation, the suitability of the land for construction purposes and its urban nature before coming to his conclusion. The Collector, therefore, rightly relied on mutation at Serial No; 15.

13. The Tribunal set aside even the above valuation and awarded 2-35 times over. It too never followed the impugned amendment. On the other hand, it took into consideration the spirit of section 23 of the Land Acquisi tion Act, as well as the accepted award given in a sister scheme located adjacent.

14. It is to be noted that the petitioners had demanded, in appeal, Rs. 400 per marla as the adequate compensation. The evidence produced before the Tribunal showed that the land was cultureable and no part of it had been constructed upon. The Tribunal also did not feel that the notifica tion for acquisition of land for the New Vegetable Market had made any difference. The Tribunal, however, thought that the awarded compensation was low and raised it to Rs. 235 as that amount bad been agreed to by the interested parties in the acquisition for the `New Vegetable Market'.

15. Even otherwise, the compensation allowed to the petitioners appears to be more than adequate, therefore, there should have no grievance It is to be noted from the award given by the Collector Annex. 'A' that the amount claimed before him ranged between Rs. 800 and Rs, 2,700 per marla. In appeal the demand came down to Rs. 400 per marla. Messrs Abdul Ghani and Abdul Wahid (also interested persons) admitted that they had purchased their land at Rs. 95 per marla only 1i months earlier to the appointed date. That I think was the best indication of the price that a willing buyer was ready to pay to a willing seller. The transaction related to a part of the demised land.

16. Another look at the tabulated mutations would show that the two mutations at Serial Nos. 13 and 15 could at the most be taken into considera tion. They pertained to the land situate within the scheme. The one at serial No. 15 took place only three days before the appointed date. The price in that case is Rs. 100 per marla as referred to above. The price in the case at Serial No. 13 works out to Rs. 62.50 per marla. Thus what has been given to the petitioners by way of compensation is rather on the higher side.

17. The learned counsel further submitted that it was the market value and not five years average that was to be worked out in the present case. He relied on Pakistan v. Muhammad Aslam (1978 S C M R 5). He contended that as the Collector took into consideration only one mutation the award was defective. The two submissions are diametrically opposed to each other. There could be no question of five years average if only one transaction was taken into consideration. The transactions referred to by the Collector in the table ranged between 1st October 1960 and 1st May 1962, and not five years. The Collector, on the other hand, relied on only one transaction which took place on 18th May 1962. By that deal an area measuring about 2 kanals had been sold for Rs. 4,000, i.e. at the rate of about Rs. 100 per marla. This land was situate within the scheme. It is, therefore, not correct to say that the Collector fixed the price on the five years average price basis. In view of the above, I do not find any merit in these petitions which are dismissed. The parties shall bear their own costs. M. A. K, Petition dismissed.