P L D 1968 Lahore 938 (PLP)

MUHAMMAD FAZLE GHANI KHAN, J.‑

The facts giving rise to the present petition under Article 98 of the Constitution of Islamic Republic of Pakistan are the following.

2. The petitioner, who claims to be a resident of village Hathian in the district of Mardan of former N.‑W. F. Province, owned 10 kana& and 18 marlas of land in village Mandla, Tehsil and District Rawalpindi, which 'has since been acquired by the respondent, the Capital Development Authority, Islamabad. The petitioner's case is that he had purchased this land for a sum of Rs. 8,800.00 vide registered sale‑deed dated the 17th of October 1959 and in addition to this amount he incurred a further expense of Rs. 500.00 on stamps, registration, brokerage, etc. Thus the land in dispute cost him a sum of Rs. 9,300.00. It was contended that the petitioner had purchased this land for the purpose of constructing a bungalow but no building could be started on it when it came under acquisition proceedings for the purpose of Capital at Islamabad.

3. Proceedings for the acquisition of 249 acres 5 kanals and 16 marlas of land including the lands in dispute were under taken in the revenue estate of Mandla by the Additional Director of Land, Capital Development Authority, exercising the powers of Deputy Commissioner under Capital Development Authority Ordinance No. XXIII of 1960 which culminated in an award dated the 22nd of July 1965 which was announced on the 18th of August 1965. The Deputy Commissioner, after hearing objections and claims, classified the land into various categories and since no exception was taken to the classification of the land he proceeded to determine compensation for compulsory acquisition. The Deputy Commissioner found that there was no documentary evidence to support the claim of the owners for the award of the compensation which they wanted from the Authority and, therefore, he rejected their claims. He, however, determined the market value of the land according to its classification and the land of the petitioner being maira land was valued at Rs. 76 per kanal.

4. Dissatisfied with the above award the petitioner went in appeal to the Commissioner, Rawalpindi. He challenged the compensation awarded by the Deputy Commissioner and contended that he was prevented from producing proper evidence to establish his claim for a better valuation because the acquisi tion proceedings were drawn at his back without any notice to him. He maintained that he had purchased the property for Rs. 8,800.00 and had incurred Rs. 500 on extra expenses and he was entitled to get compensation for damages which had resulted on account of compulsory acquisition as he was not able to build the bungalow for which he had purchased this land. This appeal came up before respondent No. 2 alongwith other 23 appeals and the only contention which appears to have been urged before the appellate authority was that the higher rates of com pensation should have been awarded for the land in village Mandla as the land acquired in some adjoining villages had been assessed at a higher rate. The appellate authority found that the average sale price of maira and ghuirmumkin land during the period of 1954‑58 was worked out by the revenue authorities at Rs. 31 per kanal but the Deputy Commissioner had rejected this assessment as it was based only on three transactions during the period in question and had awarded compensation in accordance with the rate for the land in village Jhang Bhagial.

5. The learned Commissioner rejected the rates awarded by the Deputy Commissioner on the basis of village Jhang Bhagial as there was some mistake in the calculation of the Deputy Commissioner and since the Commissioner himself, in the appeal of Jhang Bhagial, had enhanced the rate awarded by the Deputy Commissioner for that village he, therefore, considered it just and fair, and very rightly so, to bring the rates of land in village Mandla at par with the enhanced rates awarded by him in village Jhang Bhagial. Accordingly the Commissioner increased the rates of the different plots of land in village Mandla and the maira land of the petitioner which was previously assessed at Rs. 76 per kanal was assessed by the Commissioner at Rs. 112 per kanal. In the last paragraph of the appellate order the learned Commissioner took note of the special contentions which were raised on behalf of the petitioner in his appeal that the land was purchased by him for Rs. 8,800.00 on the 17th of October 1959 for residential purposes and the compensation should be given to the petitioner accordingly plus some compensation for damages resulting from inability to build the bungalow on the land due to compulsory acquisition. The learned Commissioner observed that the law permitted him to assess the price of the acquired land at the average market value prevailing during the period of 1954‑58 nod, therefore, he could not give the petitioner the price for which the land in dispute was purchased by him in the year 1959.

6. In this petition learned counsel has challenged the award of the Deputy Commissioner as well as the appellate order cm various grounds. In the first place, it was submitted that the Deputy Commissioner determined the compensation without issuing notice to the petitioner and thus the petitioner was prevented from leading evidence to prove that he was entitled for some better compensation than what has been given to him by the Deputy Commissioner. We do not find that there is any substance in this argument of the learned counsel. From the contents of paragraph 2 of the order of the Deputy Commissioner we find that claims and objections were heard on the 20th of April 1965. It is, therefore, clear that proper procedure for service of notice, etc. was duly followed by the Deputy Commissioner before the proceedings culminated in his award. Moreover this objection was taken on behalf of the petitioner in the memo. of appeal but it seems to have been given up at the time of the hearing of the appeal as it does not find mention in the appellate order of the Commissioner. In spite of the fact that the Commissioner had heard all the 24 appeals from village Mandla and disposed of all of them by one consolidated order nevertheless he had meticulously recorded all the conten tions which were raised before him and since a singular contention was raised on behalf of the petitioner he took a separate note of it and disposed of the same in the last paragraph of his impugned order. It is, therefore, obvious that the con tention that the petitioner was not served before the Deputy Commissioner was not pressed into service at the time of arguments in appeal before the Commissioner. We, therefore, do not consider that it lies in the mouth of the petitioner to challenge the validity of the award at this stage before us on the ground that no notice of acquisition proceedings was given to him by the Deputy Commissioner before making the award when he himself abandoned this plea before the appellate authority. Moreover, the petitioner was given full opportunity to vindicate his position by the appellate authority and if there was any evidence which he wanted to adduce which he could not produce before the Deputy Commissioner for want of a notice there was nothing to stop him from doing so at the appellate stage before the Commissioner. We also called upon the learned counsel for the petitioner to show what was that evidence which he wanted to produce before the Deputy Commissioner and on account of its non‑production he claims that the case of the petitioner has been prejudiced but he was not able to give us any satisfactory answer and ultimately conceded before us that notice of hearing was given to the petitioner by the Deputy Commissioner in acquisition pro ceedings.

7. Even if, under the Capital Development Authority Ordinance of 1960, we were to presume for the sake of argument that the petitioner was not given hearing at the initial stage he was heard by the appellate authority and all his contentions were taken note of and the order of the Deputy Commissioner was modified and the rate of compensation was enhanced from Rs. 76 to Rs.

112. We, therefore, conclude that the principles of natural justice have sufficiently been complied with and the impugned order cannot be set aside for this reason alone. The question of the application of principles of nawral justice has been discussed at length in a lull Bench decision of this Court in Muhammad Ishaq v. Saiduddin Swaleh (P L D 1959 Kar. 669) and has subsequently been reiterated in Gladys M. Jacob v. Chief Settlement Commissioner (P L D 1966 Lah. 464). Thing into consideration the concession made by the learned counsel as well as various decisions of this Court, discussed above, we are satisfied that no prejudice has been caused to the petitioner even if he was not heard by the Deputy Commissioner before making the award.

8. The next argument of the learned counsel for the petitioner centred round one point, namely, that the petitioner had purchased this land for a sum of Rs. 8,800.00 and the total compensation awarded by the Commissioner at Rs. 112 per kanal will come to about Rs. 1,200.00, therefore, the Commissioner was wrong in ignoring the actual price which was paid by the petitioner at the time of the sale of this and in his favour in the year 1959 and that market value of the land should have at least been determined according to the actual expenses incurred by the petitioner. We have our full sympathy with the petitioner as it appears to be a case of great hardship in which the land in dispute on which a sum of Rs. 9,300,00 was spent in the year 1959 has been acquired in the year 1965 for a sum of Rs. 1,200.00 only but we do not find that the Commissioner has committed any illegality in the impugned order which requires our interference in exercise of our Constitutional jurisdiction. Under the Capital Development Authority Ordinance of 1960 the market value has been defined in section 2(k) as under :‑-- "2 (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 ;" therefore, it was not open to the Deputy Commissioner or the Commissioner to travel beyond the limits prescribed for them by law and to award the petitioner the actual price of land or compensation according to its potential value. Had the Commissioner or the Deputy Commissioner awarded the petitioner a compensation in accordance with the sale made to him in the B year 1959 their orders would have been ultra vires of the Ordi nance and as such we are satisfied that the Deputy Commissioner as well as the Commissioner acting as appellate authority under the Ordinance, have proceeded in the correct directions to determine the market value of the land according to the formula laid down in the Ordinance of 1960 and have properly rejected from consideration the price paid by the petitioner in the year 1959.

9. Another contention of the learned counsel for the petitioner was that the Deputy Commissioner as well as the Commissioner were wrong to have assessed the compensation of this land on the basis of the compensation awarded for maira hand in village Jhang Bhagial although in the other adjoining village maim land has been assessed at a higher price than maira land in this village. In this connection he has cited the examples of various villages and has also placed on the record copies of the awards of Sambal Korak and Chak Sihali as Annexure "E" and "E/1" where the price of maira land has been determined at Rs. 385 and 350 respectively. We regret we are not in a position to embark upon an enquiry which may land us into the realm of facts. No argument was raised on behalf of the petitioner or any one of the other 23 appellants that the land in village Mandla was in the vicinity of the village Sambal Korak, etc., and the compensation should be awarded to them on the basis of the compensation for maira land in those villages and not in village Jhang Bhagial. We, therefore, cannot determine, in these proceedings, the proximity of the various villages in which maira land hash been assessed at more than Rs. 112, neither we can substitute our own reasons for assessing the price of maira land in village Mandla at the price of maira land in other village than village Jhang Bhagial. It was open to the petitioner to have raised this contention and convince the Commissioner that his land was the type of land which required assessment according to the assessment of maira land in other villages and not in village Jhang Bhagial. We are, therefore, unable to take any notice of this contention in these proceedings that the land in other villages was assessed at a higher rate than village Rang Bhagial.

10. Learned counsel for the petitioner vehemently urged before us that the consideration of the market value of the land which prevail in determining the market value of the land under the Land Acquisition Act should in fact weigh for determining the market value of the land acquired under the Capital development Authority Ordinance No. XXIII of 1960, and, therefore, the petitioner is not only entitled to get compensation for the land acquired according to its market value but also according to its potentiality. We were not impressed by this argument in the least. In the first place, we would like to point out that while calculating compensation even under the Land Acquisition Act the Court cannot take into account the amount which a claimant might have expended in the purchase and improvement of the land on the same basis as if he had invest, the amount in a business enterprise so as to demand a commercial return of investment or at least to claim the amount spent by him with the rate of interest and treat the total amount so arrived at as the market value of the land. Similarly the market value cannot be estimated by the cost of what might have been done either to preserve the land or by the investment of the money which the owner might have spent in improvements because the possibility that the invest ment in the land might not yield a good result cannot be excluded. Even under the Land Acquisition Act the potential value of the land acquired after the scheme of acquisition is implemented has to be ignored. At any rate, we cannot import the considerations which normally weigh with the Collector while determining the market value under section 23 of the Land Acquisition Act in a case where the market value has been defined by a special provision of the law under which the acquisition proceedings are drawn as in the present case. The Legislature has fixed the market value as stated earlier at the average value for the years 1954‑‑58 and, therefore, all considerations about the investment made by any particular individual after the year 1958 as well as the potential value to which it might have developed has to be altogether excluded from consideration.

11. A similar question arose before one of us (Wahiduddin Ahmad, C. J.) in a case under the Land Control (Capital of the Federation) Ordinance XXVI of 1948 in Collector of Karachi v. M. N. E. Dinshaw (P L D 1965 Kar. 557). In that case it was held that the market value of the land lying within the specified area of Capital of Federation notified for acquisition was to be determined with reference to lower market value on date of such notification and on the 31st of March 1948 as section 4 of the Ordinance of 1948 entitled the claimant owner to the market value of the land with reference to its value (1) on 31‑3‑48 and (2) on the date of the notification and the ordinary principle that the owners were entitled to the value of property with all existing advantages and future possibilities at the time of its appropriation were to be ignored. The provisions of the law under section 4 of the Land Control (Capital of the Federation) Ordinance No. XXVI of 1948 are in pari materia with the provisions of section 2(k) defining the market value as average market value between 1954‑58 under the Capital Development Authority Ordinance of 1960 and the principle laid down in the above‑noted decision is equally applicable to the present case.

12. Learned counsel for the petitioner cited certain authorities at the bar in support of his contention including Land Acquisition Collector v. Wajid Ali Khan Burki (P L D 1960 Lah. 469) wherein it has been laid down that under section 23 of the Land Acquisition Act of 1894 the criterion for determining the market value of certain land is what a willing purchaser will pay to a willing seller and that under section 23 the land which was near the town and not being used for agricultural purposes but was bought for the purpose of building was treated as a building site and not as an agricultural land. But as already discussed above these authorities are not relevant to the facts of the present case as the market value in this case had to be determined by the Deputy Commissioner. in accordance with section 2(k) of the Capital Development Authority Ordinance of 1960 and the case is fully covered by the decision of this Court in Collector of Karachi v. M. N. E. Dinshaw discussed above.

13. The last argument of the learned counsel for the petitioner was based on the decision of the Privy Council in Atmaram Bhagwant Ghadgay v. Collector of Nagpur (AIR 1929 PC 92) for the contention that where a Court ignores all the considerations pertinent to claimant's own lands and finds itself exclusively on the evidence as to the price accepted for other plots (acquired at the same time) the conditions of which were not fully before it, the principle applied by the Court in awarding com pensation on the basis of compensation accepted by the owners of other lands were erroneous. We do not find that any such circumstance exists in this case. There were only three transactions of sale during the period of 1954‑58 in village Mandla. The average price of those transactions was worsted out at Rs. 31 per kanal. The Deputy Commissioner considered it too low and gave the petitioner the same price which he had granted to the owners of maira land in adjacent village, Jhang Bhagial. The Commissioner has increased the rate of this village. In these circumstances it cannot be said that the Deputy Commissioner as well as the Commissioner have ignored the price valuation of the land in village Mandla and have wrongly assessed its valuation on the basis .of valuation of village Jhang Bhagial. In fact that authorities have been more liberal and instead of average price of Rs. 31 per kanal for village Mandla they have given the enhanced rate of compen sation of the adjoining village Jhang Bhagial at Rs. 112 per kanal.

14. We, therefore, do not find that the Deputy Commis sioner and the Commissioner while determining the compensation for the land of the petitioner have committed any illegality so as to require any interference at our hands in exercise of our jurisdiction under Article 98 of the Constitution of the Islamic Republic of Pakistan. The writ petition is, therefore, summarily dismissed. K.B.A. Petition dismissed.