P L D 1976 Supreme Court 752 (PLP)

MUHAMMAD AKRAM, J.-This is an appeal by special leave from the judgment dated 9th December, 1968 delivered by a Division Bench of the then High Court of West Pakistan at Lahore dismissing the writ petition filed by the appellants herein against the respondents under Article 98 of the late Constitution of Islamic Republic of Pakistan. Briefly the relevant facts are these. Respondent No. 1 is the Capital Development Authority, Islamabad established under section 4 of the Capital Development Authority Ordinance XXIII of 1960 (hereinafter called the Ordinance) for making arrangements for the planning and develop ment of Islamabad within the framework of an approved development plan. In pursuance to a directive, issued on the 10th April, 1964, by the Capital Development Authority, respondent No. 3, the Deputy Commis sioner, Capital Development Authority, Rawalpindi decided to acquire land measuring 301 acres, 2 kanals, 4 marlas situated in the Revenue estate of Chak Bira Singh, Tehsil and District Rawalpindi for the purposes of the Ordinance. On actual measurement the area under acquisition came to 301 acres, 3 kanals and 14 marlas. In due course the interested persons filed their objections against the acquisition and claims to the compensation. It appears that after the construction of Rawal Dam an irrigation channel known as Sharaf Minor was laid to irrigate lands comprised in and around the estate of Chak Bira Singh. Some of the land owners had actually improved upon the kind and quality of their lands and had made them irrigable between 1958 and 1964. They, therefore, claimed compensation for the cost of .improvements thus made by them to the land under acquisition and its market value in accordance with its changed classification and existing disposition as canal irrigated (nehri) land at the date of its proposed acquisition on ,10-4-1964. On the 30th December, 1964, respondent No. 3, alter hearing the interested persons classified the lands under acquisition as under: Lapara Maira Rakkar Banjar G. Mumkin A. K. M. A. K. M. A. K. M. A. K. M. A. K. M. 23-6-6 251-2-16 2-2-0 3-1-1 20-7-11 and awarded compensation at the following rates on the basis of the average prices of the acquired lands prevailing in the estate during 1954-58:

Rs. Lapara 196 Per kanal Maira 144 Rakkar 106 Banjar 53 , G. Mumkin 27 But in doing so he did not award any compensation for improvement effected in the quality of the land made at any time after 1958. Dissatisfied with the award, the appellants filed their separate appeals against it under section 36 of the Ordinance. On the 23rd March, 1966. Respondent No. 2, Additional Commissioner, Rawalpindi Division, Rawalpindi exercising powers of the Commissioner under the Ordinance partly accepted the appeals before him and enhance the rates of compensation As under for the acquired lands on the basis of the average prices prevailing in the estate from 1914 to 1958: Rs. Lapara 225 Per kanal Maira 170 Rakkar 130 Banjar 99 G. Mumkin 50 But for this he dismissed the appeals before him in all other material respects. In these circumstances, the appellants filed their writ petition against the respondents under Article 98 of the late Constitution of the Islamic Republic of Pakistan, challenging validity of the two awards made by respondents Nos. 2 and 3, inter alas, on the main ground that they had illegally failed to award any compensation for the improvements in the clas sification of their acquired lands effected after 1958. But, as already stated above, a Division Bench of the High Court dismissed the writ petition in limine on the short ground that the market value of the land under acquisition was determined in accordance with the provisions of the Ordinance and that it was not open to the High Court, in exercise of its extraordinary powers vested under Article 98 of late Constitution, to go into disputed questions of fact. Dissatisfied, the appellants filed a petition for special leave to appeal from the judgment of the High Court. On the 8th October, 1969, this Court granted leave to appeal to the appellants to consider the question as to whether in awarding the compensation the respondents were justified in disregarding the changed classification and improved nature of their lands prevailing at the time of acquisition. We have heard the learned counsel for the parties in this appeal before us. It is admitted in Para. 10 of the award dated 30th December, 1964, that out of the acquired land an area measuring 23 acres and 18 marlas was canal irrigated and had undergone a change by improvement in its quality by the material date of its acquisition. But no compensation for this improvement in the classification of the said land was at all awarded to the land-owners by respondents Nos. 2 and

3. Before us the appellants are aggrieved against this treatment meted out to them. The Capital Development Authority Ordinance XXIII of 1960 was promulgated for making arrangements for planning and development of Islamabad within the framework of a regional development plan and came into force with effect from 27th June, 1960. The Schedule to the Ordinance declares the limits of the "Specified Areas". In that connection section 3 (1) lays down that the Central Government may, from time to time, by notifica tion in the official Gazette, declare any part or parts of the Specified Areas to be the site for the Pakistan Capital. Constitution of the Capital Develop ment Authority (hereinafter called the Authority) is laid down in Chapter II of the Ordinance and its foundations as a body corporate. Under section 4, the Authority is charged with the duty to prepare a master plan and a phased programme for development of the capital site. The Authority may inter alia acquire any land in the specified area for carrying out the purpose of the Ordinance. Chapter IV, from sections 22 to 36, deals with the subject of acquisition of land under the Ordinance. Section 22 generally lays down that all land within the "specified areas" shall be liable to acquisition at any time in accordance with the provisions of the Chapter. Under section 25, on receipt of specific directions from the Authority, the Deputy Commis sioner may, by order in writing, acquire any land for the purposes of the Ordinance. In accordance with section 27, the Deputy Commissioner is required to invite claims/objections from all interested persons for their acquired lands. Under section 28 the Deputy Commissioner has to hold enquiry into the market value of the land and shall make an award of the compensation which, in his opinion, should be allowed for the land under acquisition. Section 30 expressly lays down that in determining the amount of compensation to be awarded for land acquired under the Ordinance, the Deputy Commissioner shall take into consideration inter alia the "market value" of the land. At the relevant time prior to its subsequent amendment introduced in section 2 (k), the term "market value" was defined to mean the average market value prevailing during the period commencing the first day of January, 1954 and ending the 31st day of December, 1958. Section 35 lays down that the Authority may give directions to the Deputy Commissioner as respect the exercise of his power and the discharge of his function under that Chapter and the Deputy Commissioner is guided by and bound to act in accordance with those directions. Under the provisions discussed above, the Deputy Commissioner was charged with the duty to assess and award "compensation" to which the landowners were entitled for their acquired lands. In the instant case the material date for the assessment of compensation for these lands was 10-4-1964, when the Authority had issued the necessary directions to the Deputy Commissioner under section 25 to undertake this acquisition of the lands in question. Ordinarily, in the absence of anything to the contrary, a landowner is entitled to the value of his acquired land according to its actual condition on the date of its expropriation. In Atmaram Bhagwant Chadgay v. Collector of Nagpur (AIR 1929 P C 92) it was laid down that under the provisions of the Land Acquisition Act I of 1894 the owner of the land was entitled to the value to himself of the property "in its actual condition at the time of expropriation" with all its then existing advantages and with all its future possibilities excluding only any advantages due to the carrying out of the scheme for the purposes for which the property was being acquired. This case was followed in Collector of Karachi v. M. N. E. Dinshaw and others (P L D 1965 Kar. 557) when the Court observed that ordinarily an owner of land is entitled to the value to himself of the property in its actual condition at the time of expropriation with all its then existing advantages and with all its future possibilities. As already stated above the term "market value" is defined in section 2(k) of the Ordinance as under :

"Market value means the average market value prevailing during the period commencing the day of January 1954, and ending on the 31st day of December 1958" Under section 28(ii), the Deputy Commissioner is required to enquire into the "market value" of the land and award "compensation" which, in his opinion, should be allowed for the acquired land. In his endeavour in assessing the compensation, the Deputy Commissioner is required to ascertain the average market value prevailing during the period from 1-1-1954 to 31-12-1958. The above definition of the term "market value" does not even specifically advert as much to the land under acquisition and in awarding the compensation the enquiry is made into the average market value generally prevailing for the lands in the locality during this period. After having ascertained the average market value, the Deputy Commissioner is then required to exercise his judicial mind and form his own judgment in awarding compensation for the acquired land in question before him. Section 28 does not lay down that having ascertained the average market value and collected the data as the basis, the Deputy Commissioner is left with no discretion. Indeed his real difficulty lies in the task in forming his opinion, in assessing the compensation for the acquired land in question with due regard to its relative merits and demerits and the data of the average prices compiled by him. By the introduction of section 2(k), in defining the term "market value" the Legislature has simply pegged up the average prices generally prevailing during 1954 to 1958 in respect of the different kinds of lands in general in the locality. There is nothing in the definition, either express or by necessary intendment, to warrant the conclusion that this embargo against the award on account of any rise in level of prices, was operative in any other direction as well and precluded the landowners from claiming compensation for the bona fide improvements effected in the quality of their acquired lands made during this period. Under clause 4(1)(a)(h) of the Martial Law Regulation No. 82 (known as Pakistan Capital Regulation, 1960), a restriction was imposed to the effect that no person shall within the capital site convert any land being used for purposes of agriculture to any other use. Similarly under clause 4(1)(b)(ii) of the Regulation, it is laid down that no person shall outside the capital site convert any land used for purposes of agriculture to any other purpose except in accordance with directions issued by the Deputy Commissioner. In these provisions, there was no bar imposed against a landowner in effecting improvements to his agricultural land by improving upon its classification and agricultural potential as such. There is nothing in section 2(k) or any other provisions of the Ordinance to warrant the conclusion that compensation could not be allowed for an such development to the land effected up to and as on the date of its f acquisition. In practical terms the value of any interest in land which is compulsorily acquired under the Ordinance must be ascertained by reference to the average market values prevailing generally during the period from 1954 to 1958 and for that purpose the interest in land actually acquired at the material time on the date of expropriation must be deemed to be subsisting during 1954 to 1958. In this connection it is pertinent here to mention that the above definition of the term "market value" in section 2(k) in the parent Ordinance was afterwards substituted as under by the Capital Development Authority Ordinance VII of 1968 ;-- "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 31st 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 25 % of such value." So that for the first time under this amendment in relation to land acquired on or after the first day of January 1968, a further clause was inserted in the definition and this had the effect of pegging the classification of the land as recorded in the Register of Haqdaran Zamin as in force on that day, as the criterion for the assessment of the compensation of the acquired C land. But before it, as already discussed above, there was no such pegging of the classification of the lands. There was no restriction imposed by the Statute in that direction and the compensation for the acquired land had to be assessed on the basis of its subsisting classification on the date of the acquisition. In the light of the discussion in Inglewood Pulp and Paper Co. v. New Brunswick Electric Power Commission (AIR 1928 P C 287) the onus rested on the respondents to establish that the landowners were not entitled to the compensation for the land in accordance with its existing disposition. According to Cripps on Compensation, 8th Edition, page 1, every State has authority to appropriate, for public purposes, land situated within its jurisdiction but that it was not deemed politics that private property should be confiscated for public purposes without payment to the owner of its fair value. In Central Board (Liquor Traffic) v. Cannon Brewery (1919 A C 744) Lord Alikson said that principle recognised as a cannon of construction of statute by many authorities was that "an intention to take away the property of a subject without giving to him legal right to compensation for loss of it, is not to be imputed to the Legislature unless that intention is expressed in unequivocal terms." Therefore, applying this principle, I find that there is nothing in the Ordinance to lend support to the construction that the appellants were not entitled to any compensation for the bona fide improvements made by them to the acquired land after 1958. In the instant case, the Deputy Commissioner had refused to take into consideration the improvement effected in the quality 'and classification of the land in awarding the compensation. In his opinion, under section 22 of the Ordinance the land within the specified area was expressly declared to be liable to acquisition and as such the improvements, if any, were carried out at the cost and expenditure of the landowners. Moreover, compensation for the improvements could not be allowed because of the "pegging on the prices confining the assessment of compensation to 1954 to 1958". Similarly, the Commissioner, Capital Development Authority, in rejecting the appeals of the landowners, observed that :- "It is vehemently argued by all the counsel in the appeals involving agricultural land that classification of land should be considered as prevailing at the time of the acquisition and not what it was during the prescribed period, 1954 to 1958. It is said that the land acquired has become canal irrigated since after the said period and as such, it is much more valuable. This fact may be so; but I have to go by the directions issued by the Capital Development Authority under D section 35 of the Capital Development Authority Ordinance which lays down that the classification of land shall be considered as prevailing in the said prescribed period." The Commissioner merely relied on certain directions issued by the Authority under section 35 of the Ordinance in refusing to award any compensation for the improvements in the classification of acquired land effected after 1958. This section lays down that :-- "The Authority may give directions to the Deputy Commissioner as respects the exercise of his powers and the discharge of his functions under this Chapter and the Deputy Commissioner shall be guided by, and act in accordance with such directions." This power vested in the Authority to issue directions to the Deputy Commissioner under section 35 is in the nature of subordinate delegative authority only. Under it the Capital Development Authority could issue directions which are in consonance with and subordinate to the other provisions of the Ordinance and not ultra vires of them. As already discussed above under section 28(ii) read with section 2(k) of the Ordinance, the Deputy Commissioner is required to make an award of the "compensation" which should be allowed to the landowner for his land under acquisition. In Malik Khizar Hayat Tiwana v. Punjab Province (P L D 1955 Lah. 88) late M. R. Kayani, J. (as he then was) observed that compensa tion means "counter-balancing", "rendering of equivalent", "requittal" and that it was not possible to compensate a man without requitting him for his land, without the rendering to him of an equivalent in money. In Atmaram Bhagwant Chadgay v. Collector of Nagpur their Lordships of the Privy Council observed that the owner of the land is entitled to the value of the property in "its actual condition at the time of expropriation" with all its existing advantages. This indeed is the general law. There is nothing in section 28 read with section 2(k) or in any of the provisions of the Ordinance in force to warrant the conclusion that the Deputy Commissioner was not required to award the compensation for the land according to its existing classification at the date of the expropriation of the owner thereof. On this view of the matter, therefore, in my opinion, the directions, if any, issued by the Authority under section 35 of g the Ordinance to the effect that in awarding the compensation bona fide improvements made by the landowners to their lands after 1958 but before their acquisition must be ignored, were ultra vires and In excess of the powers vested in the Authority under the Ordinance. I am also of the opinion that even the amendment introduced subsequently into section 2(k) by the Capital Development Authority (Amendment) Ordinance VII of 19681 had no effect on this state of affairs, on the lands acquired before 1-2-1968. As a result of the above discussion I find that the appellate order dated 28-3-1973 (Copy Annex. `C'), passed by respondent No. 2, to the extent that he has refused to award any compensation to the appellants herein for improvements, if any, effected by them in the classification of their acquired lands in dispute, after 1958 but before the date of acquisition, is against law and without lawful authority. I, therefore, accept this appeal, set aside the impugned judgment of the High Court and accordingly grant a declaration to the appellants against the respondents to this extent. But there will be no order as to costs in the circumstances of this case. MUHAMMAD YAQUB ALI, C. J.--I agree. DOBAB PATEL, J.-I agree. S. A. H. Appeal accepted,