2017 PLP 1608 (CLC)

MOHAMMAD AZAM KHAN, C.J.

All the above titled cases relate to the acquisition of land for Mangla Dam Raising Project. The Collector Land Acquisition, Mangla Dam Raising Project, issued awards for the acquired land on different dates. The awards were challenged through reference applications and the Collector referred the matter to the Reference Judge, who decided the references. The decrees of Reference Judge were challenged before the High Court and the judgments and decrees of the High Court by leave of the Court are the subject of present appeals and review petitions.

2. During perusal of the record it transpired that the Collector Land Acquisition, Mangla Dam Raising Project has assessed the compensation of the acquired land in the light of Azad Jammu and Kashmir Land Acquisition Rules, 1994 (hereinafter to be referred as Rules) and amended notification of the Board of Revenue bearing No.382-428/06, dated 24.1.2006. It was also brought into the notice of the Court that through an amendment brought in the Land Acquisition Act, 1894, (hereinafter to be referred as Act) on 28.7.2008, the definition of "Collector" appearing in Section 3(c) of the Act has been changed. All the above-titled appeals and review petitions were clubbed together and a notice was also issued to some senior members from the local Bar for assistance on the point whether the compensation can be assessed in the light of rules 10 and 12 of the Rules and what is the effect of amendment in rules 10, 12 of the Rules and section 3(c) of the Act brought on 28.7.2008, whereby the definition of "Collector" has been changed. Whether the compensation is to be awarded under Sections 23 and 24 of the Act or it has to be assessed under rules 10 and 12 of the Rules without adverting to sections 23 and 24 of the Act.

3. Sardar Muhammad Azam Khan, advocate, counsel for Ejaz Ahmed Mir, appellant, argued that the compensation has to be assessed under Sections 23 and 24 of the Act. Any compensation assessed by the Collector Land Acquisition in the light of rule 10 without having regard to sections 23 and 24 is against the provisions of the Act and not maintainable. He further argued that the notification under section 4 was issued in the year 2005 and amendment in the Rules was brought in the year 2006. The amended Rules were not in existence at the time of issuance of notification under section 4, therefore, the amended Rules have no application.

4. Haji Munsaf Dad, advocate, a counsel for WAPDA, argued that it is an admitted position that the Rules are always subservient to the Act. Any provision of Rules, which is against the Act, cannot hold the field. He argued that the definition of "Collector" has now been amended. It shall be read from the date the Collector Land Acquisition, Mangla Dam Raising Project, initiated the proceedings.

5. Haji Ch. Muhammad Afzal, advocate, another counsel for WAPDA, argued that the provisions of sections 23 and 24 of the Act are mandatory. The compensation is to be assessed in the light of the said provisions. The compensation cannot be assessed under Rule

10. He referred to the cases reported as AIR 1939 PC 98, 1928 Bombay Law Report 779 and 1964 Indian cases

103. He argued that the Collector has power to fix the market value under rules 10 and 12 but at the same time he argued that the Collector cannot rely upon any notification issued by the Commissioner for assessing the market value. He further argued that after the change in the definition of the Collector by an amendment, the Collector is empowered to finalize the compensation independently.

6. Ch. Shah Wali, advocate, the counsel for one of the appellants, argued that the compensation based on the notification issued by the Commissioner under Rule 12 is a nullity.

7. Ch. Reaz Alam, advocate, counsel for one of the appellants, argued that the law is settled on the point that the compensation is to be assessed under Sections 23 and 24 of the Act. He referred to a judgment of this Court delivered in the case titled Azad Government and others v. Sahibzada Raja Muhammad Hanif Khan and others (Civil Appeal No.16/20011, decided on 31.8.2012).'

8. Ch. Muhammad Jameel, advocate, another counsel for WAPDA argued that the definition of Collector was amended firstly vide an Ordinance issued on 28.7.2008. It is applicable only to the extent of awards issued after the said date. This notification is not applicable to the awards issued prior to the amendment.

9. Raja Hassan Akhtar, advocate, a senior counsel for one of the appellants, argued that the assessment of compensation by the Collector under rule 10 is against the scheme of the Act. The provisions of rule 10 are applicable only in the cases falling in section 17 of the Act. He argued that rule 10 refers to sections 5 and 17 of the Act. The learned counsel contended that for determining the market value of the land, the Collector has to resort to the provisions of sections 11, 15, 23 and 24 of the Act. The Rules only provide for the estimated cost, which is to be deposited with the Collector prior to issuance of award.

10. Mr. Abdul Majeed Mallick, a senior Advocate, appeared as the friend of the Court and argued that the Land Acquisition Act is a self-contained law. The Collector is the final authority to fix the compensation for the land to be acquired. The mode of determining the market value is provided in Sections 23 and 24 of the Land Acquisition Act. No other mode is permissible under the Act. The learned counsel forcefully contended that the provisions of Rules 10 and 12 deal with the pre-award proceedings in relation to the matter falling under Section 17 of the Act. The provisions of Section 17 deal with the cases of emergency. Furthermore, the Rules have to be consistent with the Act and rules 10 and 12 are framed and meant for convenience and smooth functioning of the acquisition proceedings. The learned counsel referred to the judgment of the Court delivered in the case titled Azad Government and others v. Sahibzada Raja Muhammad Hanif Khan and others (Civil Appeal No.116/2011, decided on 31.8.2012).

11. We have heard the learned counsel for the parties and perused the record. The question which needs resolution is that whether the Collector Land Acquisition, Mangla Dam Raising Project, was competent to assess the compensation of the acquired land while relying upon the notification issued by the Commissioner under rule 10 of the Rules without resorting to the provisions of sections 23 and 24 of the Act.

12. The Land Acquisition Act is a self-contained Code. Whenever the Collector is of the opinion that a land in a locality is required or is likely to be required for the public purpose or for a company, he shall issue a notification to that effect under section 4 of the Act and require the interested persons to file objections. After hearing and considering objections, the Commissioner shall issue a declaration under section 6 of the Act that the land is required for a public purpose and under section 7, the Commissioner or any other person authorized on his behalf shall direct the Collector to order for acquisition of the land. Section 8 of the Act authorizes the Collector Land Acquisition to mark out, measure and plan the land and issue a notice under section 9 of the Act to the persons interested. After hearing the persons interested, the Collector shall issue award of the land under Section 11 of the Act. The Collector Land Acquisition while issuing award shall act under the provisions of sections 15, 23 and 24 of the Act. Section 15 provides that in determining the amount of compensation, the Collector shall be guided by the provisions contained in sections 23 and 24 of the Act. Section 23 of the Act provides the matters to be considered while determining the compensation. It will be useful to reproduce the same, which reads as under:

"

23. Matters to be considered in determining compensation.

(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration

first, the market value of the land at the date of the 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, moveable 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 diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land. (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 the acquisition." Section 24 of the Act deals with the matters which are to be neglected in determining the compensation. Section 24 is also reproduced herein below:- "

24. Matters to be neglected in determining compensation.

But the Court shall not take into consideration-- first, the degree of urgency which has led to the acquisition. 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 the publication of the notification under Section 4, subsection (1)." A comparative study of both the sections makes it abundantly clear that while assessing compensation, the Collector shall firstly consider the market value of the land at the date of publication of the notification under Section 4, subsection (1), then he shall consider 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 taking possession by the Collector and the damage (if any) sustained by the person interested; at the time of the taking possession of the land, by reason of severing such land from his other land. The Collector shall also take into consideration the damage caused due to reason of the acquisition injuriously affecting the other property and if the interested person is compelled to change his residence, the compensation for such change and any other damage being caused to the interested persons at the time of declaration under Section 6 of the Act shall also be considered. The Collector shall also order for payment of 15% compulsory acquisition charges. Section 24 of the Act deals with the matters which will not be taken into consideration at the time of assessing compensation. No other mode is provided for assessing the compensation in the Act. Compensation has to be assessed keeping in view the provisions of sections 23 and 24 of the Act.

13. Under Section 55 of the Act the Government shall have powers to make rules consistent with the Act for the guidance of officers in all matters connected with its enforcement. The Government may, from time to time alter or add to the rules so made. It is a celebrated principle of interpretation of statutes that the rules are made to regulate the procedure and implement the provisions of the Act. All the rules have to be consistent with the parent Act. Any provision of rules repugnant or inconsistent to the Act shall have no force of law. In case of a conflict between the provisions of the Act and the Rules, the provisions of the Act shall prevail. Section 55 itself says that the Provincial Government shall have powers to make rules consistent with this Act. When the Act itself provides that all the rules made under the Act shall be consistent with the Act, then any rule inconsistent with the Act, shall have no force of law. It was observed in the case reported as Ch. Muhammad Anwar v. Ch. Muhammad Rashid [PLD 1987 SC (AJ&K) 41], as under:- ".... The perusal of the aforesaid reference reveals that it is not always correct to say that the statutory provisions must be interpreted with the aid of the rules framed under the statute. Sometime reference to the rules may lead to wrong conclusion. In case a different intention appears from the provisions of the statute, the rules are not good guide to ascertain the intention of the law-giver and must be ignored." In the case reported as Messrs Mehraj Flour Mills and others v. Provincial Government and others [2001 SCMR 1806] it was observed as under:- "

12. There is no cavil with the proposition that the rules shall always be consistent with the Act and no rule shall militate or render the provisions of the Act ineffective. The test of consistency is whether the provisions of the Act and that of rules can stand together. Main objection of rules is to implement the provisions of the Act and in case of conflict between them the rule must give way to the provisions of the Act. In any case, the rules shall not be repugnant to the enactment under which they are made." In the case reported as Ziauddin Hospital Trust through Trustee and Medical Director v. Director General/Commissioner, Excise and Taxation Sindh, Karachi and another [PLD 2001 Karachi 52], it was observed as under:- ".... However, it is to be noted that it is a well-settled principle of law that in case of inconsistency in the provisions of a statute and the rules made thereunder, the provisions of the statute would have precedence and would be given effect to over and above the Rules, if it is impossible to reconcile the inconsistency and the conflict in the statute and the Rules." Similarly in the case reported as Loilongbam Chaomaoha Singh and others v. Chief Commissioner of Manipur [AIR 1858 Manipur l (V 45 C 1)] it was observed as under:- " . Again it is well-settled that if reconciliation between a section and a rule made under the Act is not possible then the rule which is a subordinate provision must give way ." For determining the question whether rule 10 vests any power in the Commissioner for determination of compensation or any mode is provided in the said rule, which is against the provisions of sections 23 and 24 of the Act, we have to look into the relevant rule. It will be useful to reproduce rules 10 and 12 and amended rules 10 and 12 which read as under:- "10. (1) The Commissioner of the division while issuing a notification under Section 5 or 17 of the Act shall ensure that: (i) full description of the village, tehsil and district, square or rectangle field number and area of the land is mentioned in the notification; (iii) a note is given at the bottom of the notification to exclude waqf, State and evacuee lands, tombs, graveyards and places of religious character; (iv) The Collector of the district has carefully and prudently calculated the estimate price of the land sought to be acquired keeping in view

(a) the factors laid down in sections 23 and 24 of the Act; (b) the classification of the land to be acquired and its location; and (c) the average market price of similar kind of land similarly located, on the basis of the price prevalent during the period of twelve months preceding the date of publication of notification under Section 4; (iv) The Collector of the district has placed funds, equivalent to the estimated cost assessed by him under sub-rule (iii) at the disposal of the Land Acquisition Collector and has deposited the same in the Treasury under head "Revenue Deposit" as security for payment of compensation; and (v) In the case of a company, it has been ascertained by inquiry as required under Section 5-A of the Act that the area sought to be acquired is not excessive and is reasonable and the excess area if any is deleted while using a declaration under Section 6 of the Act. (2) Where a company makes an urgent request for invoking the provisions of section 17 of the Act for the acquisition of land, the Commissioner shall depute an officer and fix the time and place according to which that officer shall hold an inquiry and make specific recommendation regarding the matter mentioned in Section 4 of the Act. Particularly about the aspect that the area proposed to be acquired is reasonable for the purpose and is not excessive. This report along with other justification, if any given by the Collector of the district or the industries Department of Government or the company shall be carefully considered before deciding whether the provisions of Section 17 are attracted in the case or not. (3) No land lying near a town, meant for fodder cultivation or for orchards or otherwise cultivable shall be notified for acquisition for the establishment of any industry. For the location of industrial units all concerned Departments of Government including Health Industries and Agriculture shall be consulted to ensure that no hazards to public health or agricultural economy would be involved, in case of such an acquisition." Rule 12 is as under:- "

12. The estimated cost of the land worked out under sub-rule (iii) of rule 10 shall be approved by the following: (i) Up to Rs.5 lacs by the Collector; (ii) Up to Rs.10 lacs by the Commissioner; and (iii) Above Rs.10 lacs by the Board of Revenue." Amended. Rules 10 and 12 are reproduced as under: "10. (1) The Commissioner, of the division while issuing a declaration under Section 6 or direction under Section 17 of the Act shall ensure that: (i) full description of the village, tehsil and district, square or rectangle, field number and area of the land is mentioned in the notification; (ii) a note is given at the bottom of the notification to exclude waqf, State and evacuee lands, tombs, graveyards and places of religious character; (iii) Subject to the provisions contained in rule 12, the Collector Land Acquisition has carefully and prudently calculated the unit price of the land sought to be acquired keeping in view

(a) the factors laid down in sections 23 and 24 of the Act; (b) the classification of the land to be acquired and its location; and (c) the average market price of similar kind of land similarly located, on he basis of the price prevalent during the period of twelve months preceding the date of publication of notification under Section 4; (iv) The Collector of the district has placed funds, equivalent to the estimated cost assessed under sub-rule (iii) at the disposal of the Land Acquisition Collector and has deposited the same in the Treasury under head "Revenue Deposit" as security for payment of compensation; and (v) In the case of a company, it has been ascertained by inquiry as required under Section 5-A of the Act that the area sought to be acquired is not excessive and is reasonable, and the excess area, if any, is deleted while issuing a declaration under Section 6 of the Act. (2) Where a company makes an urgent request for invoking the provisions of section 17 of the Act for the acquisition of land, the Commissioner shall depute an officer and fix the time and place according to which that officer shall hold an inquiry and make Specific recommendation regarding the matter mentioned in section 4 of the Act. Particularly about the aspect that the area proposed to be acquired is reasonable for the purpose and is not excessive. This report along with other justification, if any, given by the Collector of the district or the industries Department of the Government or the Company shall be carefully considered before deciding whether the provisions of Section 17 are attracted in the case or not. (3) No land lying near a town, meant for fodder cultivation or for orchards or otherwise cultivable, shall be notified for acquisition for the establishment of any industry. For the location of industrial units all concerned Departments of the Government including Health, Industries and Agriculture shall be consulted to ensure that no hazards to public health or agricultural economy would be involved in case of such an acquisition." Rule 12 is as under: "

12. The unit price of the land, worked out on the basis of per kanal or per marla, as the case may be under sub-rule (1)(iii) of rule 10 shall be approved by the following: (i) Up to rupees one lac per kanal by the Collector of the district; (ii) Up to rupees three lacs per kanal by the Commissioner; and (iii) Above rupees three lacs per kanal by the Board of Revenue provided that the estimated cost of land acquired for the purpose of Mangla Dam Raising Project as worked out under sub-rule (1)(iii) of rule 10 shall be approved by the following:- (i) Up to 5 million by Collector Land Acquisition for Mangla Dam Raising Project; (ii) More than 5 million by Commissioner for Mangla Dam Raising Project." A perusal of rule 10 leaves no doubt that the rule has been framed to deal with a particular situation that while issuing declaration under Section 6 or under Section 7 of the Act, the Commissioner shall ensure that the Collector has entered full description of the land including village, tehsil, district, square or rectangle, field number or area of the land and Waqf land, evacuee land, State land, towns, graveyards, tombs, places of religious character etc are excluded. Under rule 12 the unit price of land sought to be acquired shall be carefully and prudently calculated while, keeping in view the provisions of sections 23 and 24 of the Act. The Rules provide so many further details which, the Commissioner shall ensure before issuing notification. The Rules refer to sections 6 and 17 of the Act. Section 17 deals with special powers in cases of urgency that in the nature of emergency involved how the land shall be acquired. Rule 10 also lays that subject to the provisions of rule 12, the Collector shall calculate the unit price of the land while keeping in view the factors laid down in Sections 23 and 24 of the Act. The scope of Rule 10 came under consideration of this Court in a full Court judgment recorded in the case titled Azad Government and others v. Sahibzada Raja Muhammad Hanif Khan and others (Civil Appeal No.116 of 2011, decided on 4.10.2012. It was held in paras 9 and 10 of the judgment as under:- "

9. A juxtapose examination of the Rules and Act leave no doubt in our minds that rule 10 has been framed and subsequently amended to carry out the purpose of section 17 of the Act, and it is only confined to this extent. It has no overriding or controlling effect on the provisions of sections 23 and 24 of the Act. The Collector Land Acquisition has to follow the procedure and mode prescribed in the Act and for determination of the market value, the criteria is incorporated in sections 23 and 24 of the Act.

10. The provision of rule 10 has no nexus and application for determination of market value for the purpose of award, therefore, the argument that the Collector Land Acquisition has to determine the market value according to the parameters of rule 10 of the Land Acquisition Rules, is not correct appreciation of law." It has categorically been held that provisions of rule 10 have no nexus and application for determination of market value for the purpose of award. Following the view we hold that the compensation assessed by the Collect Land Acquisition in the light of some notifications issued by the Commissioner under rule 10 is against the legal provisions. The compensation can only be assessed under Sections 23 and 24 of the Act. The provisions of rules 10 and 12 and amended rules are consistent with the Act. Rule 10 clearly postulates that the compensation be assessed keeping in view the factors laid down in sections 23 and 24 of the Act. The amendment in rules is not in conflict with the Act.

14. We have also considered the point that what would be the effect of change in the definition of 'Collector'. In the original Act 'Collector' has been defined in Section 3(c) of the Act, 1894, which is as under:-- "3(c) The expression "Collector" means the Collector of a District, and includes a Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under this Act;" (underlining is ours) The definition of "Collector" has now been changed through the amended Act No.II of 2011 dated 26.1.2011. Initially the amendment was introduced vide Ordinance XIII of 2008, dated 1.8.2008. The President gave assent to the Ordinance on 28.7.2008. This Ordinance was to come into force at once. For proper appreciation it is deemed necessary to reproduce the amended definition of Collector, which is as under: "3(c) The expression "Collector" means the Collector of a District, and includes a Deputy Commissioner and any person appointed as Collector Land Acquisition by Government or any officer designated by Board of Revenue to perform the functions of a Collector under this Act." A perusal of the said amendment reveals that it came into force at once as the Ordinance was made by the President on 28.7.2008 and it was published on 1.8.2008. It has no retrospective operation. The Collector Land Acquisition has been vested with the powers of acquisition of land. The rights of the State subjects in the land acquired are affected by the award issued by the Collector. It is a golden principle of interpretation of statutes that if an Act touches the rights of a person, it cannot be retrospective rather its operation will be prospective, unless otherwise provided. All the awards under appeals and review petitions were issued prior to the amendment in the definition of "Collector" The amended definition of Collector is not retrospective, therefore, it is not applicable to the awards issued before the amendment. Even otherwise, amended definition does not affect the powers of the Collector. The powers vested in the Collector remained the same. Since we have concluded that it was enjoined upon the Collector to assess the compensation while issuing award, keeping in view the provisions of Sections 23 and 24 of the Act, but the Collector instead of keeping in view the provisions of Sections 23 and 24, relied upon the notification issued by the Commissioner under Rule 10 of the Rules, which is against the provisions of the Act, therefore, the awards have not been issued in a lawful manner but the difficulty before us is that the land was acquired in the year 2005-06, which has been utilized by the WAPDA. The original compensation has been paid to the interested persons. Quashing of proceedings/awards will create hardships for the litigants as well as the State machinery. All the record is available on the file of Reference Judge and the Collector Land Acquisition Mangla Dam Raising Project, therefore, instead of directing the Collector Land Acquisition for issuance of fresh awards, we have decided to hear and decide the appeals or review petitions on merit. The appeals shall be decided by the Court on merit while considering the whole record. A notice shall issue to the counsel for the parties and the files be placed before the benches to be constituted. ZC/83/SC(AJ&K) Revision allowed.