P L D 1980 Lahore 23 (PLP)

MUNAW WAR ELAHEE RANA, J.-This appeal is directed against the decision dated 26-11-1960, whereby the learned Civil Court (District Judge, Rawalpindi) dismissed the appellant's application made under section 18 of the Land Acquisition Act (I of 1894) mainly on the ground that no prima facie case was made out for an enquiry.

2. Land measuring nearly 393 acres, 5 kanals and 3 marlas situated in and around Rawalpindi Town was needed by the Government for the purposes of the Satellite Town Scheme, in respect of which relevant notifications under sections 4 and 6 of the Act were issued. The Collector under section 11 of the Act enquired into the objections to the value of . the land, and compensation was allowed to every interested person by an award dated 6-4-1957. It may be pointed out that instead of valuing the property separately, the Collector awarded uniform rates for different categories of the land situated in each village. Since possession of the land was obtained earlier in point of time than the award, interest with effect from the date of possession to the date of payment of compensation was, therefore, also allowed.

3. Feeling dissatisfied with the award the Province made an application under section 18 of the Act for reduction of the price. Ordinarily it is the interested person alone, who is enabled to get the matter referred by the Collector for the determination of the Court provided he has not accepted the award, but by virtue of section 8 of the Land Acquisition (Punjab Amendment) Act (XI I of 1954) a subsection (3) was added to the parent Statute -which provided that notwithstanding. Anything to the contrary contained in section 21, the Provincial Government 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 inquiry into and determination of the objection against the award. The Provincial Government is thus authorised to refer the matter to the Court under section 18 (3) of the Act provided the award is not accepted by it. Reference on behalf of the Government cannot be entertained unless in the opinion of the Court there is a prima facie case for inquiry into and determination of the objection against the award. It was for this reason that the learned Court was obliged to frame a preliminary objection in the following manner : (1) Is there a prima facie case for inquiry into and determination of the objection raised by the petitioner against the award 7

4. In support of this issue the appellant examined a witness, namely, Khan Masood Ahmad, Tehsildar as P. W. 1. he stated that he had based the averages on the potential values of the land. The learned Court found that the witness did not support the appellant, inasmuch as he did not establish that the appellant had a prima facie case. The petition was consequently dismissed. Hence this appeal.

5. Many of the deceased respondents were substituted by their legal representatives through the intervention of the Court, and many of them have since been proceeded ex parte. However, a question of abatement was raised by Mr. Iftikharul Haq Khan, Advocate, stating that respondent No. 3 had died about 12/13 years ago and his legal representatives were not brought on record. By an order of this Court dated 2-10-1977 a copy of the application dated 2-10-1977 (C. M. 3986/C of 1977) was given to the learned counsel for the appellants with a directive to check up whether the representation of all the parties was complete. But iii spite of that the appellants have failed to make an application for impleading the legal representatives or for setting aside the abatement. Of the respondent No 3 was very much interested in the result of the appeal and he had a right in the land acquired, he was a necessary party and his presence could not be dispensed with. In the circumstances the appeal shall be deemed to have abated on account of non-representation of the deceased. The appellants' counsel was apprised of the situation, but he was not in a position to defend the same. A question would arise whether on account of the absence of the proper representation of respondent No. 3, the appeal ha abated wholly or in part. It is a cardinal principle that abatement as such takes place only as regards the defendant or respondent who dies, and when the "total abatement" of a suit or appeal on the death of one of the defendants or respondents is spoken of, it is meant that on account of the situation that is created by the abatement of the suit or the appeal as against a party, the suit or the appeal cannot, for one reason or the other,' proceed at all. In accordance with rule 4 of Order XXII, Code of Civil Procedure the suit abates only as against the deceased defendant, and by virtue of rule 11 in case of appeals "respondent" has to be substituted for "defendant". The law is enunciated in Wall v. Manak Ali (P L D 1965 S C 651) that the word "as against the deceased defendant" were added in the Civil Procedure Code, 1908, so as to set at rest the conflict. According to the amended provision, abatement, therefore, takes place only as regards the deceased party and it will greatly add to the clarity of thought if the expression "total abatement" was altogether avoided when dealing with a situation as in that case. In the instant case the parties have calculated, separate and distinct interests, quite independent of each other. No total abatement, therefore, takes place on account of the death of one of the respondents. We, therefore, hold that abatement of appeal had taken place in respect of and to the extent of respondent No. 3 and no more.

6. The appellant has questioned the correctness of the award made by the Collector. In an application under section 18(3) of the Act, the appellant averred that the compensation granted was exorbitant, very high and not acceptable to the Provincial Government, for the reason that the Collector was influenced by some other awards in respect of different lands situated nearby, that according to law the Market value of the land was to be determined according to the use to which it was being put at the time of the first notification, and that the Collector had improperly ignored the preliminary estimate sent to the Government giving better assessment of the market value. It was, however, asserted that the Government did not accept the award. The contentions were denied in the reply and it was maintained that the appellant had accepted the award as was evident from the written statements filed on behalf of the Provincial Government in all the references pending in the Court. It was, therefore, contended that the appellant was estopped from making a reference. It was also denied that the Government had a prima facie case for enquiry into and determination of the objections against the award. In support of the contention the appellant, as stated earlier, had produced one witness who could not prove the material facts. On the basis of a few decisions, the learned counsel for the respondents has urged that they were successful in getting the market value increased, and that the Government did not go in for an appeal against the decision of the Court, but had, without protest, paid the compensation to the interested persons. This act, according to the learned counsel, was sufficient to infer that the Government had consented to the award. We cannot give much importance to this argument; for, the relevant judgments in respect of different references were not placed on record showing that the price of the land in dispute was raised by the Court at the instance of the respondents and that the Government had acquiesced in the award by paying the revised compensation.

7. For referring the matter to the Court under section 18(3) of the Act, it was a condition precedent that the applicant (appellant) should not have accepted the award. The contention that the award was never accepted was categorically denied, but the solitary statement of the witness (P. W. 1) establishes that the Government, after accepting the award, had made payments to the various land owners whose land had been acquired. This statement made by the appellant's own witness in respect of the existence of a prima facie case for an enquiry and acceptance of the award has the effect of binding the appellant. - Once a party, whether he is an interested person under section 18(1) or the Government under section 18(3) of the Act, accepts the award, he becomes incapacitated to get his matter referred to the Court. In the instant case, the acceptance of the award is proved by P. W. 1, and for that reason the Government is estopped from questioning the award. It had, in these circumstances, no prima facie case for an enquiry. The learned District Judge was, therefore, justified in holding that the appellant Government had no arguable case for reference and for an enquiry into and determination of the objection against the award.

8. It has been contended that the Land Acquisition Collector, while making the award, was influenced by some other awards in relation to the lands in the vicinity, that he had erred in working out quinquennial average taking into consideration the entire set of transactions made for the period as back as from 21st May, 1953, and that preliminary estimates were ignored. The argument has no force for the reason that the Collector is not supposed to act as a Court and be restricted to the procedural technicalities except to observe the fundamental principles of natural justice. All that is required of the Collector is to make an enquiry under section 11 of the Act, which provides that on the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections, if any, which any person interested, a Department of Government, a local authority or a Company, has stated pursuant to a notice given under section 9 to the measurements made under section 8, and into the value of the land at the date of the publication of the notification under section 4, subsection (1), and into the respective interests of the persons claiming the compensation and shall make an award under his hand of (i) the true are of the land ; (ii) the compensation which, in his opinion, should be allowed for the land ; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims he has information, whether or not they have respectively appeared before him. The Collector is only bound to enquire into the objections to the value of the land, but the law has provided no particular procedure or mode of enquiry which the Collector is bound to adopt. Section 11 makes it clear that to awarding compensation the Collector should first of all estimate the value of the land and with that value, as a basis take into consideration any other special factors and calculate the proper compensation to be paid. In making the award the Collector is not acting as a judicial officer, but as held in Collector of Karachi v. Haji Gola and others (1) inquiry should not be of a summary character. The persons interested have to be heard and given opportunity to adduce evidence. It is not alleged or made out in the instant case that the Collector had ever failed to record evidence or afford the parties an opportunity of being heard. It is nowhere mentioned in the application made under section 18(3) of the Act or in the grounds of appeal that an opportunity to lead evidence with regard to the price claimed by the interested persons was denied to the Government. The Collector is, therefore, only bound to exercise his own judgment in respect of the assessment of compensation, and this is what he has, while making the award, done. However in determining compensation a guideline has been provided by section 15 and section 23 of the Act. Various factors have been enumerated in section 23 to be kept in mind, whereas some others given in section 24 of the Act are required to be ignored. The award and the statement of P. W. 1 do not say that the Collector had deviated from the provisions contained in law. The, appellant had, thus, no prima facie case for reference. For the reasons stated above, there is no substance in the appeal and the same is dismissed with costs. s. G. D. ? Appeal dismissed. (1) P L D 1965 Kar. 413