P L D 1964 Azad J & K 21 (PLP)

"The literal construction then, has, in general, but prima facie preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act; to consider, according to Lord Coke: (1) What was the law before the Act was passed? (2) What was the mischief or defect for which the law bad not provided. (3) What remedy Parliament has appointed? and (4) The reason of the remedy. According to another authority: "In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon's case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief." At the same time the language of the statute must not be strained to make it apply to a case which does not legitimately, on its terms, apply by invoking consideration of the supposed intention of the Legislature. The true meaning of any passage, it is said, is to be found not merely in the words of that passage, but in comparing it with other parts of the law, ascertaining also what were the circum stances with reference to which the words were used, and what was the object appearing from those circumstances which the Legislature had in view. The same, it would seem, applies to a bye‑law. Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enact ment of the whole statute or series of statutes relating to the subject‑matter." He also quoted from page 7 of Maxwell wherein it is written that:‑‑ "If the choice is between 2 interpretations, the narrower of which would fail to achieve the manifest purpose of legislation, we should avoid a construction which would reduce the legis lation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result." Whenever it appears to the Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to this effect is published in the official Gazette and the Collector causes public notice of the substance of such notifi cation to be given at convenient places in the said locality under section 4 of the Land Acquisition Act, thereupon it becomes lawful for any officer, either generally or specially authorised by the Government in this behalf, and for his servants and work men to enter upon and survey and take levels of any land in such locality and to do other necessary acts. Under section 5‑A any person interested in any land which has been notified under section 4, subsection (1) as being needed or likely to be needed for a public purpose or for a company may, within 30 days after the issue of the notification object to the acquisition of the land or of any land in the locality, as the case may be. Under subsection (2) the Collector hears all objections and submits the case for the decision of the Government together with the record of the pro ceedings held by him and a report containing his recommendations on the objections. The decision of the Government on the objections is final. Under section 6 when the Government is satisfied after con sidering the report, if any, made under section 5‑A, subsection (2) that any particular land is needed for a public purpose or for a company, a declaration is made to that effect under the signature of a Secretary to the Government or some officer duly authorised to certify its orders. The declaration is published to the official Gazette and such declaration is conclusive evidence that the land is needed for a public purpose or for a company, as the case may be and after making such declaration the Government acquires the land in a manner hereinafter provided. Under section 7 when ever any land has been so declared to be needed for a public purpose or for a Company, the Government or some officer authorised by the Government in this behalf directs the Collector to take order for the acquisition of land. The Collector thereupon causes the land (unless it has been already marked out under section 4) to be marked out. He also causes it to be measured and if no plan has been made thereof, a plan is made of the same. Then under section 9 the Collector causes public notice to be given at con venient places in or near the land to be taken, stating that the Government intends to take possession of the land; and that claims to compensation for all interest in such land may be made to him. Under section 11, the Collector on a day so fixed proceeds to enquire into the objections (if any) which any person interested 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 then he makes an award under his hand of‑ (i) the true area of 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. Section 23 provides that in determining the amount of compen sation to be awarded for land acquired under this Act, the Court shall take into consideration:-- firstly, the market‑value of the land at the date of publication of the notification under section 4, subsection (1) ; secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the "person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminu tion of the profits of the land between the time of the publica tion of the declaration under section 6 and the time of the Collector's taking possession of the land. Subsection (2)‑In addition to the market‑value of the land as above provided the Court shall in every case award a sum of fifteen per centum on such market‑value, in consideration of the compulsory nature of the acquisition. Section 24 provides that the Court shall not take into considera tion:‑ firstly, the degree of urgency which has led to the acquisi tion ; secondly, any disinclination of the person interested to part with the land acquired; thirdly, any damage sustained by him which, if caused by a private person, would not render such person liable to a suit; fourthly, any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration under section 6, by or in consequence of the use to which it will be put ; fifthly, any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired ; sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put; or seventhly, any outlay or improvements on, or disposal of, the land acquired, commenced, made or effected without the sanction of the Collector after the date of publication of the notification under section 4, subsection (1). The date of the publication of the notification under section 4, subsection (1) is very important since the market‑value of the land has to be determined as it was on this date. Prior to 1923 it was the date of the publication of the declaration under section 6 which was the more important since the market‑value of the land had to be determined as it was on the date of the publication of the objections under this section but by the Amending Act XXXVIII of 1923 substituted the words "notification under section 4, sub section (1)" in place of the words "declaration under section 6". Thus prior to the amendment of 1923 were expenditure incurred or improvements made on the land sought to be acquired after the date of the publication of the declaration under section 6 could not be taken into consideration unless such expenditure was made with the sanction of the Collector. If with knowledge of the acquisition proceeding and the notification thereof the owner invests capital on the land to be acquired he does so at his own risk as has been held in 51 1 C,

501. In view of the amendment of clause seventhly by the Act XXXVIII of 1923 any improvements made or expenditure incurred after the date of the notification under section 4 of the Act should not be taken into consideration in assessing compensation. Under the English Law it is a well settled rule of the Law of Compensation that the owner's power of dealing with his property is concluded when the notice to treat is served. The notice to treat is the same as the notification issued by the Government under section 4 notifying that land in any locality is needed or likely to be needed by the Government for any public purpose. So where, after receipt of the notice to treat, an owner entered into an agreement with a person who had for a number of years occupied a portion of the premises as a weekly tenant, for a lease of the same to him for a term of 3 years, it was held in (1871) 12 E Q 389, 391 that the tenant was not entitled to any com pensation in respect of the interest created by such agreement. In the words of Lord Lindley, "the broad number appears to be that it is not competent for an owner of land who has received notice to treat to deal with any of his land either taken or injuriously affected by the company, so as to increase the burden to the com pany as regards the compensation to be made in respect of the said land or part of it." In Mercer v. Liverpool, St: Halen and South Lancashire Railway, Mithu. L. J. remarked:‑ "It must be regarded as a Civil Rule of Law that there can be but one proceeding for compensation, and that after notice to treat no onerous interest either in the land taken or in that injuriously affected, can be created by the owner to the pre judice of the company." In 1878 W N 219, where a land owner erected structure after receipt of notice, it was held that he could not compel to take the structure also with regard to the disposal of the land. The general number in English Law is that the interest created after the service of notice to treat, is not subject of compensation as has been laid down in (1908) 2 K B 126 C A, though a person having interest in the land may part with it after such notice and the assignee or grantee then stands in his place as regards the right of compen sation. Although there is no such qualifying expression in the clause seventhly the position would seem to be the same, viz., that such disposal of the land would not be applied so as to increase the value of the land. It was argued by the learned counsel for the respondent that section 23 of the Land Acquisition Act lays down the things that are to be taken into consideration while determining the market -value of the land on the date of the publication of the notification under section 4 while section 24 provides that the things provided in clauses firstly to seventhly shall not be taken into consideration. According to his interpretation any outlay or improvements on or disposal of, the land acquired, commenced, made or affected even with the sanction of the Collector after the date of the publica tion of the notification under section 4, subsection (1) cannot be taken into consideration while determining the market‑value of the land. His contention is that such improvements as have been made with the sanction of the Collector may entitle such persons to bring a separate suit. against the acquiring authority but do not entitle him to an enhanced compensation on account of these improvements. We do not agree with the learned counsel in his interpretation. The only remedy of a person whose property is being acquired and who is dissatisfied with the award is to call upon the Collector to refer the matter to the civil Court under section

18. A separate suit to recover the land does not lie Similarly, 1f the person interested in the land is aggrieved in the matter of the inspection of the measurements or the amount o compensation as decided by the Collector, he can only ask for reference under section 18; he shall not litigate the matter in civil Court. We are of the opinion that if any improvements have been made with the sanction of the Collector then these improve ments have to be taken into consideration by the Collector while determining the market‑value of the land acquired but what sanction means we shall consider later on, whether it means previous sanction or sanction given after the improvements have been made. Sanjiwa Row in his Book The Law of Land Acquisition and Compensation, 3rd Edition, on page 383 writes under the heading "Object and Scope of clause 7, section 24" that the object of the provision is to prevent any outlay on the land being made for the purpose of enhancing the compensation. It is also intended to provide for the allowance or compensation, as was afterwards explained, for any outlay on works commenced, but not completed, at the time of the publication of the declaration, provided the sanction of the Collector is obtained for their execution or com pletion. The effect of the amendment made in 1923 is to extend the period of disability to an earlier date. This change was the logical necessity arising from the enactment of section 5‑A by the amending Act of 1923. The material time for the market‑value of the land is now the date of the notification under section 4(1). This clause, therefore, prohibits any outlay improvements or disposal made after the date of such notification from being taken into consideration. The true meaning of any passage, it is said, is to be found no merely in the words of that passage but in comparing it wit other parts of the law, ascertaining also what were the circum stances with reference to which the words were used and what was a the object, appearing from those circumstances which the Legislature had in view. This is the rule of Interpretation which ha been laid down in Maxwell's at page

19. Maxwell quoting Jervis, C. J. in Mattison v. Hart 14 C B 385 writes at page 6 that we ought to give to an Act of Parliament the plain, fair and literal meaning of its words where we do not see from its scope that such meaning would be inconsistent or would lead to manifest injustice. The scheme of the Land Acquisition Act is that the power of the owner of the land to be acquired to deal with it comes to an en after the publication of the notification under section 4 and it is the market‑value of such land on the date of the publication of the notification under section 4 that is the measure of compensation to be awarded to the owner. If we adopt the interpretation Mr. Saraf so as to mean by sanction the ratification of an act already done by the owner it would be inconsistent with the intention of the Act and would also lead to manifest injustice. I was argued by Mr. Saraf that the Collector is the agent of the Government and that if he sanctions an improvement already made then the Government has to thank itself. We think the Collector while determining compensation or performing the other acts prescribed under the Acquisition of Land Act, is not there as the agent of the Government but as a statutory authority. Take the case of an acquisition made by the Government for a company who want to set up a factory on the acquired land. The land is vacant on the date of the publication of the notification under section

4. The owner after the publication of such notification sets up a costly building on the vacant land and the Collector sanctions such building, would it not be unjust to force the company to take and pay for such building which it does not require. If we take sanction to mean post facto sanction it would be not only con trary to the intention of the Legislature but would also lead to manifest injustice. Habib Ullah Khan and Mohammad Shafi, JJ: have also laid down in P L D 1956 Pesh. 110, that the interpretation should be consistent with the intention of the Legislature. All that clause seventhly of section 24 meant was that any outlay on works commenced but not completed at the time of the publication of the notification under section 4 may be completed with the sanction of the Collector. The Legislature never meant that the D Collector should allow the erection of fresh buildings and compel the acquiring authority to take such un‑wanted buildings and to pay for them. The proforma used by the Assessment Committed and which is reproduced below also shows that it was never intended to allow the erection of new buildings but was only meant for sanctioning improvements to already existing buildings. "Proforma.‑--Recommendation of the Assessment Committee on the application of Mr‑ ‑‑‑‑‑‑‑‑‑son of‑‑‑‑‑ House No.-‑‑Mohallah‑‑‑‑‑‑‑Tehsil‑‑‑‑. For grant of permission for improvement etc., to house in the area where section 6 of Land Acquisition Act has been declared. (1) Is the building to which improvement, addition or altera tion etc. is sought newly constructed or an old one? (2) In case of newly constructed building, what is the appro ximate date of its construction. Was it built before or after the notification under section 4 or 6 of Land Acquisition Act? (3) What is the approximate cost of the building and the nature, extent and the approximate cost of outlay, addition, alteration or improvement for which permission is sought? Has the plan of the building and that of such addition, altera tion etc., as the case may be, been appended to the application? (4) Is improvement, addition or alteration sought such that a without it the building cannot be properly inhabitated, enjoyed or is in imminent danger of collapse or serious harm? (5) Has the applicant any other building besides the one under question ? To what use is he going to put the new build ing? Is it for his personal use or rental or commercial purpose? (6) Are there any other factors worth mentioning? (7) Recommendation of the Engineer. Member of the Com mittee. (8) Recommendation, if any, of the Chairman, Assessment Committee." We may also refer to the application Exh. P.A. of Qazi Nazir Ahmad appellant made to the Additional Collector on which the sanction was accorded. It is written in this application that the appellant had been carrying on his business in village Siakh and that he had shifted to Mirpur in September 1959. In this appli cation he claims to be the owner of the biggest cloth shop (Paris Cloth House) in Mirpur and states that he cannot afford to pay the high rent for a house, therefore, he had built a house and prays that the building be ordered to be measured and compensa tion assessed. He also writes in this application that he had previously made an application on 11th February 1960, for obtain ing permission to build a new house but that he had not been told what had happened to this application. In para. 6 of this appli cation dated 20‑6‑60 he writes that he considers the sanction proceeding to be a mere formality and that he has built a house on an evacuee site at a cost of Rs. 13,

000. The owner of the biggest Cloth Shop in Mirpur, we think, could afford even to pay a fancy rent that was being demanded in the year 1960 or he could keep his residence in a village on the out‑skirts of Mirpur as so many other shop‑keepers of Mirpur Town are doing. They live in the surround ing villages from where their children come daily to schools in the Mirpur Town. Qazi Nazir Ahmad could also have done that. If he wanted the convenience of a house built by himself, then he could do so by building a house at his own expenses and at his own risk. It would be unjust to allow people to build on their land after the publication of the notification under section 4 much less to build on sites that do not belong to them and to force the Government to take and pay for such un‑wanted buildings only to be submerged in water. Qazi Nazir Ahmad had not applied for sanctioning the construction of the house; he had already done so and we are not prepared to believe that he had made any appli cation earlier on 11th February 1960 since no such application has been traced in the office of the Collector and no such application has been proved to have been made. While sanctioning improve ments the Collector should also hear the authority or the person for whom the land is being acquired. Our opinion is that the word "sanction" used in section 24, clause seventhly means previous E permission and not post facto sanction (ratification). We have not come across a single caseeven under the Cr. P. C. or the Criminal Law Amendment Act where sanction to prosecute may have been accorded after the conclusion of the trial and the same may have been held to have been valid. The enactment of clause seventhly of section 24, Land Acquisi tion Act cannot be said to be mere directory legislation since it affects the rights of two parties‑--one the person whose land is being acquired, and the other for whom it is being acquired. In P L D 1960 Dacca 438, where a differentiation was made between the directory and mandatory legislation it was laid down that however if any prejudice or injustice is caused by such non -compliance, the Court will not hesitate to set aside the trial. The Collector by sanctioning an un‑authorised construction after its erection is causing prejudice to the interest of the person acquiring the land. The appeal is dismissed with costs. K. B. A. Appeal dismissed.