1999 PLP 1589 (SCMR)

CH, MUHAMMD ARIF, J.

The lands of the appellants and others, situated in the revenue estate of Bokra, Tehsil and District Rawalpindi, were the subject-matter of acquisition in the year 1968 by their respondents under the provisions of the Capita! Development Authority Ordinance (No.XXIII of), 1960. Two awards in respect of the lands of the petitioners and others were made on 7-12-1968 and 30-12-1968 which were challenged in appeal before the respondent-Commissioner, Capital Development Authority, C.D.A. for short, who remanded the case to the Deputy Commissioner, C.D.A.

2. The demand of the appellants to compensate them on the prevailing market price as their land was potential building site and situate close to large number of industrial concerns, was not agreed to by the Deputy Commissioner, C.D.A. who proceeded with delivering the Award as per classification of the land entered in the Revenue Record.

3. The appellants challenged the award of Deputy Commissioner, C.D.A. dated 12-3-1973 in appeal before the Commissioner, CDA who vide his order dated 30-8-1973 enhanced the compensation. Feeling dissatisfied with the appellate-order, the appellants/expropriated land owners challenged the order dated 30-8-1973 through W.P. No. 1693 of 1975 which was dismissed by the learned Judge in Chambers of the Lahore High Court on 18-1-1993 with the observation that the orders passed by the respondents do not, in law, qualify to he treated as without lawful authority.

4. Para. 7 of Leave Grant Order dated 21 -6-1993 reads thus: "

7. The contention raised by the learned counsel for petitioners is that the land in question was acquired in 1968, and the same being a potential building site, located close to large number of industrial concerns, the detail whereof was given in para. 5 of the petition, neither the acquiring authority in determining the compensation nor the High Court adverted to this aspect of the case, resulting in grave injustice, besides substantial pecuniary loss to the petitioners. In support of his submission learned counsel relied on Malik Aman and others v. Land Acquisition Collector and others (PLD 1988 SC 32) and Land Acquisition Collector and others v. Muhammad Iqbal (1992 SCMR 1245), wherein, this Court held, that for determination of compensation, the potentiality of the land and use to which, the land is capable of being put ought to be considered.

5. Hence this appeal.

6. Mr. Bashir Ahmed Ansari, Advocate Supreme Court has raised the same contention which did not find favour with the learned Judge in Chambers. According to him, the potential value of the land in question was not kept in view by respondent- Authorities and the case of the appellants has been resolved against them without considering the ratio decidendi in the a cases of Malik Aman and others v. Land Acquisition Collector and others (PLD 1988 SC 32) and Land Acquisition Collector, Abbotabbad and others v. Muhammad Iqbal and others (1992 SCMR 1245). He was also of the view that 5 years' average sale price of lands, similarly placed as those of the appellants, is a misleading yardstick for determining the value thereof. In support of the latter proposition he placed reliance upon Pakistan through the Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and another v. Malik Muhammad Aslarn and 5 others (1978 SCMR 5), Province of Punjab and others v. Mufti Muhammad Ishaq and others (PLD 1984 Lahore 261) and Faqir Shah and others v. Khalo Khan and others (PLD 1951 Peshawar 14). He concluded his arguments with the plea that in the matter of calculation of the value of lands of citizens the letter of the law contained in sections 23 and 24 of the Land Acquisition Act (No.1 of 1894), do provide the time tested method of considering the potential value of the land and if such course is not resorted to by the appropriate authorities, the rights of the citizens cannot be termed as having been given due weight to.

7. We have gone through the precedent cases as also the available material, with the help of learned counsel for the appellants, The first two precedents were noticed in the Leave Grant Order as well. The said precedents deal with sections 18, 23 and 24 of the Land Acquisition Act. The case of Malik Aman (supra) was distinguished in the case of Land Acquisition Collector, Abbottabad (supra) with the observation that "There cannot be any cavil with the proposition that the Court while assessing the amount of compensation may take into consideration the potentialities but anything, which is prohibited under section 24 of the Act, cannot be made basis for awarding the amount of compensation". There is no, need for dilating upon this aspect any further in that reference to sections 23 and 24 of the Act made by Mr. Bashir Ahmed Ansari, learned counsel for the appellants in support of this appeal, loses sight of the fact that the provisions of the Land Acquisition Act (ibid) were made applicable by amending the Capital Development Authority Ordinance, 1960 with effect from 8-1-1996 through Ordinance (No.I of) 1996. The initial clause (k) of section 2 of the C.D.A. Ordinance ibid read thus: "(k) 'market value' means the average market value prevailing during the period commencing the first day of January, 1954, and ending on the thirty-first day of December, 1958; It was through Ordinance (No.VII of) 1968 that the afore-quoted definition was substituted with the following sub-clauses (i) and (ii) to clause (k) of section 2 with effect from 11-12-1968: "(k) 'market value' means,

(i) in relation to land acquired before the first day of January, 1968 the average market value thereof prevailing during the period commencing the first day of January, 1954, and ending on the thirty-first day of December, 1958 and (ii) in relation to land acquired on or after the first day of January, 1968, the aggregate of the average market value as aforesaid determined with reference to its classification recorded in the Register of Haqdaran Zamin as in force on that day and twenty-five per cent. of such value. To complete the picture with regard to the matter of determination of the average market value and the applicability of the discipline in vogue in the Province of the Punjab in accordance with the provisions of the Land Acquisition Act, 1894, the addition of sub-clause (iii) to clause (k) of section 2 in the Capital Development Authority Ordinance, 1960 may be reproduced at this juncture: "(iii) in relation to land acquired on or after the first day of January, 1996, the market value as may be determined in accordance with the provisions of the Land Acquisition Act, 1894, applicable in the Province of the Punjab." It is not the case of the appellants that while determining the amount of compensation to be paid to the appellants (and others) the respondent-Authorities were not possessed of the jurisdiction to rely upon the letter of the law contained in section 2 (k) of C.D.A. Ordinance (ibid), as initially applicable during the time when the lands of the appellants were acquired i.e. in the year 1968. To put it differently, the constraint of calculating the amount of compensation, in terms of the earlier discipline which proceeded with an exhaustive definition of the term "market value" to mean the average market value prevailing during the period commencing the first day of January, 1954 and ending on the thirty-first day of December, 1958. It was in the year 1968 that this definition was extended to remain exhaustive of sub-clauses (i) and (ii), afore-quoted. The addition of sub-clause (iii) in clause (k) of section 2 of the Capital Development Authority Ordinance, 1960 cannot but have prospective operation w.e,f. 8-1-1996.

8. Be that as it may, there is no force in the contention that the respondent-Authorities were bound to take into account the potential value of the lands in question during he time that the orders dated 12-3-1973 and 30-8-1973 were made by the Deputy Commissioner, C.D.A. and Commissioner, C.D.A. respectively. The Award of D.C. was appropriately amended by respondent Commissioner, C.D;A. and consequential increase in the price brought to bear on the award in relation to lands of the appellants. In the absence of any 'legislation by incorporation' making the provisions of sections 23 and 24 of the Land Acquisition Act (ibid) applicable with retrospective effect, the appellants cannot press into service the afore-mentioned provisions in their case.

9. Out of the remaining three precedents, the first two also fall in the same category as the cases of Malik Aman and Land Acquisition Collector, Abbottabad i.e. they also deal with the exercise of authority by the functionaries of State under the Land Acquisition Act (No.1 of 1894). The argument that 5 years' average-formula is mislaeading in a case under the Land Acquisition Act (ibid) and, therefore, it be treated as such is this case as well, is of no avail to the appellants in that the determination of the amount of compensation in relation to the case of the appellants in the year 1968 was to mean average market value prevailing during he period commencing the first day of January, 1954 and ending on the thirty-first day of December, 195-8. As regards the 3rd case, we need not discuss it in this context in that it dealt with a pre-emption matter and has got no nexus whatsoever with the concept of 'acquisition 6f lands'.

10. Before parting with this judgment we may observe that Mr. Bashir Ahmed Ansari, learned counsel for the appellants, had prefaced his arguments, based on the strength of the precedents aforereferred, with the submission that if the determination of calculation is to be exclusively -done on the basis of the provisions in clause (k) of section 2 of the C.D.A. Ordinance, 1960 then, in the presence of clause (4) of Article 24 of the Constitution, he has no case to argue, Clause (4) of Article 24 (ibid) reads thus: "(4) The adequacy or otherwise oi any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any Court." As we have already held that, in relation to the appellants, the then discipline was all that was to be brought to bear upon the matter in relation to the acquisition of the lands of he appellants (and others) in the year 1968, this appeal is-sans merit.

11. Looked at from whatever angle, the orders made by the respondent Authorities under the Capital Development Ordinance (No,XXIII of 1960) have not been shown to be suffering from any taint in law.

12. No other point was urged.

13. For all that has gone before, the instant appeal is dismissed with no order as to costs. H.B.T./K-26/S , Appeal dismissed.