P L D 1963 Supreme Court 333 (PLP)

Continuing with the examination of the procedure under the Act, section 11 provides for the Collector to hold an enquiry and thereafter to make an award. Ordinarily, it is only after the making of the award that possession may be taken of the land, whereupon the land vests in the Provincial Government. This is provided by section 16, but in an urgent case, the Government is empowered by section 17 after expiry of 15 days from the publication of the notice under section 9, and before the making of the award, to take possession, whereupon vesting takes place. It was the latter procedure that was followed in these cases. Section 18 provides for contest to be raised in respect of the award, and as originally enacted in 1894 and continued thereafter for 60 years, the right of contest was reserved to "persons interested," who were entitled to demand that the matter; should be referred by the Collector to the Court of the District Judge for determination by that Court of objections which could be as to the measurement of the land, as to the amount of the compen sation, as to the persons entitled to compensation, and as to the apportionment of compensation among the "persons interested." Subsection (2) provides for procedure in respect of such appli cations. In 1984, the Legislative Assembly of the Punjab passed an Act, which, inter alia, added a third subsection to section 18, which reads as follows: "(3) Notwithstanding anything to the contrary contained in section 21, the Provincial Government or a local authority or a company for which land is being acquired may, if it has not accepted the award, refer the matter to the Court within a period of six months from the date of announcement of the award, provided that the Court shall not entertain the reference unless in its opinion there is a prima facie case for enquiry into and determination of the objection against the award." The case has been examined by the Courts below as if the decision turned upon the single question, whether section 18 (3) could be allowed retrospective operation so as to apply to the award given by the Collector in the present cases, which was delivered on the 14th March 1957. The Act came into force on the 7th April 1954, that is some 5 months after the issue of notice under section 9, which fixed a time limit of 15 days in which claims were to be presented. In the view we take of the case, the decision turns upon the true construction of a later section, namely, section 25 of the Act, and it is desirable that we should reproduce that section here: ‑ "25. (1) When the applicant has made a claim to com pensation, pursuant to any notice given under section 9, the amount awarded to him by the Court shall not exceed the amount so claimed [or be less than the amount awarded by the Collector under section 11]. (2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector. (3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector." By the Punjab Act of 1954, the words shown in square brakets in subsection (1) of section 25 were deleted. By the expression "applicant" reference is clearly intended to the expression "application" appearing in subsection (2) of section 18, which, until the amendment of 1954 could only be made by a "person interested who has not accepted the award." Clearly, neither of the expressions "applicant" or "application" is appropriate in relation to the motion which is enabled by the new subsection (3) to section 18, for that subsection speaks of a direct reference by the "Provincial Government or a local authority or a company for which the land is being acquired" to be made to the Court. A plain reading of section 25 shows that it was intended to reserve rights in favour of applicants, i.e. "persons interested," in relation to the award made by the Collector, while at the same time fixing as a ceiling to the amount which the District Judge might award, the quantum of the claim presented under section

9. That ceiling, as an absolute maximum, is applicable in practice only where a claim has in fact been presented by an applicant, and that is the case dealt with in subsection (1), i.e. the maximum that an applicant can get at the hands of the Court is fixed by the amount he has claimed. The section as originally worded fixed, besides this ceiling also a floor, namely, that such an applicant could not receive less than the amount awarded by the Collector, and this was deleted by the Provincial Act of 1954. It is a question, which we shall examine presently, whether, reading section 25 as a whole, this omission necessarily enables the Court to give to a person falling under subsection (1) less than the amount awarded by the Collector. The two other subsections deal with applicants who have failed to make claims at the appropriate time. Three cases are contemplated, namely: ‑ (1) where the applicant has refused to make a claim; (2) where the applicant has omitted without sufficient reason to make a claim ; and (3) where there is omission to make the claim, but for a sufficient reason. In each case, it is for the Judge of the Court of reference to decide, where there is no refusal, whether the omission was, or was not for sufficient reason. The case more favourable to the applicant is that in which although he failed to make a claim, it is held in his favour that there was sufficient reason for his default, and in such a case the Court may award a larger amount than that awarded by the Collector, and is debarred from allowing less than the amount awarded by the Collector. In other words, there is a floor namely, the amount of the Collector's award, but no ceiling such as is provided by subsection (1). The less favourable case for the applicant is where he is shown to have refused to make a claim at the proper time, or to have failed to make such a claim and to have no sufficient reason to explain his default, and in this case there is a single provision, namely, that the maximum amount which may be awarded to such person is that awarded by the Collector. In other words, the award of the Collector is prescribed as the ceiling in such a case, and the clear implication is that, in such a case, there being wilful default to make a claim, the Court may, on the result of its enquiry, give such a person less than the amount awarded by the Collector. Reading these three subsections together, it is clear that the equities run best in favour of the applicant who has made a claim for compensation, from the point of view of his adherence and submission to the law, but his own claim fixes the ceiling for the relief which he can get. Where the applicant has failed to comply with the law, he should, in the eye of that law be entitled to less favourable treatment than one who has made compliance, and in this case we see that if his failure is not wilful the law allows to him the full benefit of the Collector's award, as well as the possibility of gaining more than that amount on the result of the Court's enquiry. The appli cant who has refused either actually or notionally to make a claim has the least right to the consideration of the law, and in this case the ceiling of the amount he may receive is fixed at the amount awarded by the Collector. These rights apparently accrue to an applicant who has made a claim, from that time, but rights also are secured to applicants who have made no claim, and it seems to us that the time of accrual should therefore be taken back to the action pursuant to which the occasion for making a claim arose, namely, the issue of a notice under section

9. The section creates vested rights in favour of those who make, as well as of those who do not make, a claim, and as the claim in all cases is to be made in response to a notice under section 9, it is reasonable to assume that these vested rights accrue as from the issue of such notice. The case contended for by the Corporation that an appli cant, under subsection (1), who has complied with the law and made a claim for compensation, as have the appellants in the present cases, is by virtue of the amendment placed in a worse position than an applicant under subsection (3) who has failed, though not willfully to comply with the law. While the latter cannot, despite his default, be given less as compensation than the amount awarded by the Collector, this result is, it is contended, now possible, upon a direct reference by the party compulsorily acquiring the property, where the owner had complied with the law in all respects. That conclusion is sought to be drawn from the mere omission of the words originally in the subsection, which placed a minimum limit upon the amount, which could be awarded in such a case. We find it difficult to place a construction upon a mere Comission, which would effect so great an injustice. If the intention was that the acquiring party should be generally enabled to bring down the compensation awarded by the Collector, by recourse to the Court, we feel no doubt that the third subsection would also have been altered so as to exclude the words "shall not be less than, and", with the result that the Court would have liberty to exceed the Collector's award, without limit on the one hand, and on the other to go below the award, according to its findings. The case being one of compulsory expropriation of property, the law was jealously worded to safeguard the interests of the owners, at least as to the amount of the compensation. Any change in the law must be viewed with the same jealous eye, for it still remains one of the principal purposes and ends of law to assure rights of property to the subject. Therefore, we would incline strongly in favour of the view that power, in the Court, to award less than the amount fixed by the Collector is confined to the case where the applicant willfully defaulted in making his claim, when called upon to do so, but in the case of non‑wilful default, or where a claim is actually made, as here, the lowest amount which the Court may award is that fixed by the Collector, for the law gives such applicants a vested right to the latter amount, as a minimum, effective from the time when the Collector issues his notice under section

9. This was, however, not the basis upon which these cases were dealt with in the Courts below. When they came before the District Judge, he read the new subsection (3) of section 18, and then referred to a later amending Act, viz., the President's Act, No. IV of 19.17, by which the words enabling "a local authority or a company for which land is being acquired" to make a reference to the Court, were omitted with effect from 7th April 1954, i.e., the date of the Act by which subsection (3) was introduced. The District Judge then noted that on the restoration of popular Government in the Province, the Provincial Legislature replaced the President's Act by the Land Acquisition (West Pakistan Amendment) Act, XXVII of 1958, which also excluded the words in question. From this, the District Judge concluded that it was clear that after the omission of these words, the Corporation was not competent ` `to come up with any objections against the award." The matter being taken in revision before the High Court, a learned Single Judge reversed the District Judge's decision, pointing out that applications by the Corporation to the Collector for a reference to the Court had been filed on the 8th May 1957, when the President's Act IV of 1957 had not yet come into force, and further that jurisdiction with respect to a proceeding which is pending before a Court is not taken away by a statute which henceforth puts an end to that jurisdiction unless there be something in the amending statute to this effect. The learned Judge referred to the later West Pakistan Act XXVII of 1958, which confirmed the excision from section 18 (3) of the words in question, but with prospective effect by the use of the expression "shall be omitted". A further objection taken in the High Court was that the cases had not properly been brought before the Court by the Corporation when they moved by way of application to the Collector for a reference. By section 50 (2) proviso, the Land Acquisition Act still lays down that no "Local authority or company shall be entitled to demand a reference under section 18." The learned Judge held that the error of procedure was not fatal, Section 18 (3) indeed provided that a local authority could refer a matter to the Court directly, but on the date when the reference reached the Court through the Collector, there was still an ample balance of limitation left to run, so that there was no difficulty in the way of regarding the reference as having been made directly to the Court. For these reasons, the‑learned Judge reversed the order of the District Judge, and holding that the petitions filed by the Corporation had not become incompetent, he directed that the District Judge should proceed to hear them on the merits. Leave to appeal against this order was granted in each case by this Court, to consider whether section 8 of the amending Act of 1954, adding the third subsection to section 18, was intended to be retrospective in effect. It has been pointed out by Mr. Muhammad Asaf for the appellants that there are no words in the Act of 1954 to indicate with precision from what date it was the intention of that Act that the provision enabling the acquiring Government or body to make a reference to the Court should take effect. The Act states that it was to come into force at once, and as to the new subsection (3) it merely said that it was to be "deemed to have been added" in section 18 of the parent Act, but without any indication as to the date from which such adding was to be deemed to have taken effect. Mr. Ghias Muhammad for the Corporation admitted that the amending Act did not fix such a date, but he attempted to rely on the fact that some of the other provisions in the amending Act did not use the method of deeming, but directed that certain words should be substituted or added, for the argument that whenever the amending Act said that words to be deemed to have been added or substituted, it should be supposed that the intention was that such addition or substitution should take effect from the date in 1894 when the parent Act was passed. The learned Judge in the High Court did not reach any positive finding upon this question. The question was dealt with in the Bourse of a discussion of the effect of the President's Act IV of 1957 which said that certain words "as added'.' by the amending Act of 1954 should be deleted with effect from the date on which the Act of 1954 came into force, i.e. the 7th April 1954, and in this connection the following observation was made: ‑ "Now I am prepared to assume that the introduction of sub section (3) to section 18 was intended to have retrospective effect, for according to the section which introduced this amendment, this subsection is to be deemed to have been added, but the mere fact that the introduction of subsection (3) was to be with retrospective effect will not necessarily lead to the conclusion that the use of the words `as added' was intended to create a retrospective effect. The words `as added had to be used because subsection (3) had been later added and did not exist in the original Act." That cannot be regarded as a determination of the question of retrospective effect as it has been raised in the present appeals. Here, the argument advanced, which we have accepted, is that by the wording of section 25, rights accrue to "persons interested" who commence proceedings under section 18, and those rights accrue, not from the date of the award, but from the date upon which a notice under section 9 is issued by the Collector. The Collector's award was made on the 14th of March 1957, but the notice under section 9 was issued on the 3rd of November 1953. The question being one of sequestration of vested rights, not in any ordinary case, but in a case of compulsory expro priation under forms of law, express words or the very strongest of necessary implications would be required in order to uphold the contention made on behalf of the Corporation, namely, that by the amending Act not only was the local authority made competent to move the Court, but the Court was also enabled to reduce the compensation below that awarded by the Collector, and all this with effect from the year 1894. In our view, and speaking with respect to the learned Judge, it is not possible to draw a conclusion of retrospective operation from the mere use of the words "shall be deemed to have been added" without any indication of the intention of the Legislature as to the date from which the deeming was to take effect. The addition of the reference to deeming would then be mere surplus age and the phrase would be understood as in every way equivalent to the phrase "shall be added." As a result of the above discussion, we are clearly of the opinion that the rights of the appellants in respect of this acquisition are to be governed by the law as it stood on the 3rd November 1953, when the Collector issued the notices to them under section 9 of the Land Acquisition Act, at which time, it is clear that it was not competent to the local authority, at all, to move against the award of a Collector under section 18, and it was clearly not open to the Court to act in these cases other wise than as expressly laid down in subsection (1) of section 25, as it then stood, namely, that the ,amount awarded to them by the Court could not be less than that awarded by the Collector. The reference by the local authority namely, the Corporation was expressly for the purpose of obtaining a reduction in the11 Collector's award, and we are clearly of the opinion that it was not competent for the Court to make such an order in the case. Accordingly, we allow these appeals and reversing the decision of the Court below, we restore the order of the District Judge, but for different reasons. We allow the appellants their costs throughout. A. H. Appeals allowed.