P L D 1979 Quetta 20 (PLP)

20. In case of Secretary of State v. Rhagwan Prasad, it has been held "After a reference has been made Linder the Land Acquisition Act it is not open to the Collector or the Secretary of State to say that the reference was wrongly made although the ground for saying so may be that the application by the owner was belated i.e., in contravention of section 18(2). The `Courts' does not sit on appeal over the Collector and the Act does not give any authority to the `Court' either in express terms or by implication, to go behind the reference and to see whether the Collector acted rightly or wrongly. It is the province of the Collector alone to decide for himself whether he should make the reference or refuse to do so."

21. In case of S. Attar Singh v. Secretary of Stale, it has been held :‑ "The decision on a question of limitation on an application under section 18 rests with the Collector and not with the District Judge. Section 19 also indicates that the question of limitation is to be decided by the Collector. The District Judge cannot sit as a Court of Appeal over the Collector when the latter has come to the conclusion that the application is made within time. The function of the District Judge is confined to giving a decision on objections raised."

22. In case of Abdul Sattar v. Mst. Hameeda Bibi, it has been held :‑ "If the learned Judge intended to lay down the unqualified rule that once the Collector bad made a reference, the Court to which the reference is made, has no jurisdiction to enquire into the competency of that reference, I should be extremely reluctant to accept that statement of the law. Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction, and where the jurisdiction of such. Tribunal is dependent upon the existence of certain facts or circumstances, it is its obvious duty to see that those facts and circumstances exist to invest it with jurisdiction. And where a tribunal derives its jurisdiction from the statute that creates it, and that statute also defines the conditions under which that Tribunal can function it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen. As was remarked by the Privy Council in `Nusserwanjee Pestonjee v. Meer Mynoodeen Khan 6 M I A

134. Wherever jurisdiction is given to a Court by an Act of Parliament, and such jurisdiction is only given upon certain specified terms contained in that Act, is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction, for, if they be not complied with, the jurisdiction does not arise. Therefore the Court functioning under the Land Acquisition Act being a tribunal of special jurisdiction, it is its duty to see that the reference under that Act is made to it by an authority competent to make the reference and that the reference relates to a matter which can be referred to it under that Act. I agree with the observations of Beaumont, C. J., with which Rajodhyaksha, J., agreed in Mahadeo Krishna Parkar v. Mamletdar of Alibag A I R 1944 Born. 200, that since the Collector has power to make a reference on certain specified conditions the Court is bound to satisfy that the reference made to it by the Collector complies with those conditions, so as to give the Court jurisdiction to hear the reference, because if the reference does not comply with the terms of the Act, then the Court cannot entertain it." Their Lordships have relied on Full Bench judgment written by Muhammad Munir the then Chief Justice of the Lahore High Court in case of Abdul Sattar v. Mst. Hameeda Bibi. Their Lordships in that Full Bench judgment have relied on cases of Nussenranjee Pestonjee v. Meer Mynoodeen Khan (6 M I A 134) and Mahadeo Krishna Parkar v. Mamletdar of Alibagh (A I R 1944 Bom. 200).

23. In case of Nusserwanjee Pestonjee v. Meer Mynoodeen Khan the Privy Council held that "whenever jurisdiction is given to a Court by an Act of Parliament, and such jurisdiction is only given upon certain specified terms contained in that Act, it is a universal principle that these terms must be com plied with in order to create and raise the jurisdiction, for, if they be not complied with, the jurisdiction does not arise." On these principles, their Lordships of the Full Bench in case of Abdul Sattar were of the view that the Court functioning under the Land Acquisition Act being a tribunal of special jurisdiction has its duty to see whether the reference made to it under the Act is by an authority competent to make the reference or that the reference relates to a matter which can be referred to it under that Act. Their Lordships agreeing with the views of their Lordships in case of Mahadeo Krishna Parkar v. Mamlatdar of Alibag, observed that since the Collector has the power to make a reference on certain specified conditions, the Court shall have to satisfy itself whether the reference made to it by the Collector complies with the conditions specified under the Act, so as to have the jurisdiction to hear the reference. If the reference does not comply with the conditions provided therein, the Court shall have no jurisdiction even to entertain the reference, what to talk of taking a decision.

24. In case of Sind Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and 4 others, their Lordships has referred to the cases of, (i) Secretary of State v. Bhagwan Parsad, (ii) Sri Venkates waraswami Veru Bezwada by Trustees Rampilla Appalaswami and another v. Sub‑Collector, Bezwada and another; (UP Secretary of State v. Bhagwan Prasad ; (iv) S. Attar Singh R. S. Sardar Hira Singh v. Secretary of State ; and (v) Abdul Sattar v. Mst. Hamida Bibi. In this case, their Lordships has observed that the proposition of law laid down by the learned Judges of Allahabad High Court, Madras High Court and Peshawar Judicial Commissioner's Court was not disapproved in case of Abdul Sattar v. Mst. Hamida Bibi. On this ground their Lordships dismissed the writ petitions. Indeed the matter before their Lordships was under a constitutional jurisdic tion.

25. In case of Collector of Karachi v. Haji Gold and others his Lordship has referred to cases; (i) Bashir Ahrned and others v. The Collector, Multan ; and (ii) Sind Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and 4 others.

26. In case of Bashir Ahmed and others v. The Collector, Multan, the Land Acquisition Collector, Multan had refused to refer the matter to civil Court. It was held that it is within the competency and jurisdiction of the Collector to decide so.

27. Having dealt with the different views of the various Courts, I feel it pertinent to reproduce the section 18 of the Land Acquisition Act here. Section 18 reads as under :‑ "(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land. the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken : ‑ Provided that every such application shall be made,‑ (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, subsection (2) or within six months from the date of the Collector's award, whichever period shall first expire."

28. The conditions put down in section 18 are :‑ (i) A written application to the Collector, (ii) by an interested person, who has not accepted award, (iii) stating the grounds of objection as to the measurement of the land, the amount of compensation or as to the persons to whom it is payable or as to the apportionment of compensation money amongst the persons interested, and (iv) within the period prescribed by subsection (2).

29. All these conditions are matter of substance and indeed their compliance is essential to the exercise of the powers, either by the Collector or by the Court. The Collector, before exercising such powers has to satisfy himself whether the application requesting for reference .of the case fulfils the conditions laid down in the section or not. If any one of the conditions misses, the application becomes untenable and it renders the reference ab initio void. The reference itself becomes non‑existent in the eye of law. If the Collector closes his eyes and refers the matter to Court, the reference Court cannot close its eyes. On the contrary, it becomes sacred duty of the Court to look into the validity of the reference. If the Court closes its eyes and fails to look into the validity of the reference and decides the matter, such decision indeed would become void and non existent in the eye of law. My views are supported from the case, Yousaf Ali v. Muhammad Aslam Zia and 2 others (P L D 1958 S C (Pak.) 104).

30. The Court of reference is a Tribunal of Special jurisdiction. It can exercise its jurisdiction under the conditions laid down in section

18. On receiving a reference from . the Collector, the Court has to satisfy itself, if the reference made to it comes within the four corners of the conditions. The principles are supported from the propositions laid down in cases of, (i) Nusserwanjee Pestonjee v. Meer Mynoodeen Khon ; (ii) Mahadeo Krishna Parkar v. Marnletdar of Alibag; and (iii) Abdul Sattar v. Mst Hameeda Bibi.

31. On the touch stone of the proposition laid here‑in‑above, we have to see how the facts of this case stand the test. For that purpose, we have to go through the facts of the case :‑ (i) There is a written application. (ii) It is made by an interested person, who had not accepted the award. (iii) The application contains the grounds. The fourth condition admittedly misses. The application was to be made within the specified time. The period provided is :‑ (i) If a person moving the application was present or represented before the Collector at the time of the award, the time limit is six weeks. (i) In other case, within six weeks after the receipt of the notice from the Collector. (iii) If a case is not covered by any one of the above said conditions, then the application is to be made within six months from the date of the Collector's award. The First two conditions, are not relevant with the matter in hand. Indeed the last rule of limitation would apply. Undisputedly, the petitioner has not moved the application within the prescribed period. The fact is borne by the record. The record shows that the award was given in July 1967 and the application for reference was made by the petition on 14‑10‑1969. Calculating the time from the date of the award and the date of the filing of application it would lead us to a definite conclusion that the application has not been moved within six months. In result the~$ application is held to be . hopelessly time‑barred. The learned District Judge was perfectly justified in treating the application time‑barred. Obviously, I have no reason to dissent with the finding of the District Judge on this issue. Consequently the objection raised by the appellant's counsel fails accordingly.

32. I will now revert to the second objection raised by M. Basharatullab. Before dealing with it, I feel it necessary, which I think is a must to go through the finding of the learned District Judge, Quetta in respect of the dispute giving rise to the objection. On this issue, the learned District Judge has observed :‑ "Now we have to see whether the prices fixed are proper in view of section 23 and section 24 of the Land Acquisition Act. The applicant has produced the Extracts of the Revenue record in respect of sales of land in a village nearby the land in question. Exh. P/1‑A, Exh. P/2‑A and Exh. P/3‑A relate to the land in the same Mahal. But the lands are away from the disputed land. In cross‑examination A.‑W. 1, has admitted that the lands mentioned in Exh. P/1‑A, Exh. P/2‑A, Exh. P/3‑A and Exh. P/4‑A, are nearer to Quetta and their prices are comparatively higher than the land in suit. In Exh. P/1‑A, the land was sold in the year 1962 @ Rs. 16,584 per acre, in Exh. P/2‑A, the land was sold on 11‑11‑1963 at the rate of Rs. 14,560 per acre, in Exh. P/3‑A the land was sold on 19‑6‑1964 at the rate of Rs. 34,000 per acre. For our purpose, Exh. P/1‑A and Exh. P/2‑A are the only relevant transactions as these have been made before the acquisition of land in dispute. Under section 23, the market value of the land would be considered which was at the date of Notification of publication under section 4, subsection (1) of the Act. In the present case, Notification under section 4, was made on 3‑4‑1964. In both these cases (Exb. P/1‑A and Exh. P/2‑A) the average per acre of the land is Rs. 16,584 and Rs. 11,442 respectively. Exh. P/3‑A, relates to a transaction which was made after the publication of the Notification. Exh. P/5‑A and Exh. P/6‑A, were made on 23‑5‑1968 and 27‑8‑1970 i.e. much after the acquisition of land in dispute. Therefore, I rule out of consideration these documents. The defendants have also filed certain entries i.e. Exh. R/l, Exh. R/2, Exh. R/3, Exh. R/4 and Exh. R/5, these entries relate to the transactions before the acquisition of the land in question. The transaction in Exh. R/1 is dated 27‑12‑1962 and the price is Rs. 8,000 per Acre, Exh. R/2 relates to transaction dated 14‑5‑1963 and the rate per acre is Rs. 9,000, in Exh. R/3 rate per acre comes to Rs. 21,272 and it is dated 4‑6‑1963, in Exh. R/4, the rate per acre comes to Rs. 11,432 and it is dated 4‑9‑1963, Exh. R/5 is dated 28‑11‑1964 and the rate per acre comes to Rs. 11,467.20. All these transactions are in respect of sale of land in Mauza Habib Mahal Chashma, where the land in dispute is situated. The applicant's attorney has appeared as witness and he has stated that he does not know about any transactions in these days and in this vicinity. He has further stated that he does not know the price of the disputed land per acre during those days. The result of the above discussion is that the compensation awarded to the applicant is fair, proper and adequate and issues are therefore, decided against the applicant."

33. The learned District Judge opined that the documents having Exh. P/1‑A and Exh. P/2‑A were relevant. It were to be considered in the matter. The transactions were made some time before the compulsory acquisition of the land in dispute. In these both transactions, the average price of the lands was found to be Rs. 16,584 and Rs. 11,442 per acre. However, the learned District Judge did not take these transactions into considera tion. Obviously these transactions were in respect of lands situated in same and other Mahals but some distance away from the disputed lands.

34. But, the learned District Judge had taken into consideration the documents produced and relied upon by the respondent. The documents produced by the respondent bore, the Exh. R/l, Exh. 2, Exh. R/3, Exh. R/4 and Exh. R/5. Indeed these transactions, as is the case of the respondent and not denied by the appellant, are in respect of lands situated in Mauza Habib Chashma Mahal, undisputedly, where the land under dispute is situated. Indeed the learned District Judge in determining the compensa tion has relied on the provisions of section 23 of the Act. Admittedly this section envisages the provision and principle for calculating the compensation to be awarded to an owner of a land. In determining compensation inter alia, the market value of the land at the time of issuance of notification is to be taken into consideration.

35. The relevant provision of section 23 is reproduced herewith :‑ "first, the market‑value of the land at the date of the publication of the notification under section 4, subsection (1)." Under the provision of law, we have to determine the market‑value of the land for the relevant time. The market value of the lands adjacent to the land in dispute in same Mahal according to the respondent, in case of Exh. R/1 is Rs. 8,000, in case of Exh. R/Z is Rs. 9,000 in case of Exh. R/3 is Rs. 21,272 in case of Exh. R/4 is Rs. 11,432 and in case of Exh. R/5 is Rs. 11,467.20. According to the respondent's own case, the maximum price for a piece of land in the same Mahal, where the land under dispute is situated at the relevant time was Rs. 21,

272. Indeed, the market value of the land under dispute should have been fixed by the Collector and the District Judge by keeping in view the maximum sale price of that land. The learned District Judge as it appears has not taken this price into consideration at the time of passing the impugned order. No doubt, it is a difficult task to assess market value of a land. Indeed, its value can only be assessed by considering the prices that have been obtained in the past for lands of similar quality and in similar position. Besides, the compensation awarded to an owner has to be determined by reference to price which a willing vendor might reasonably expect to obtain from a willing purchaser. Indeed a vendor as the appellant seems to be, and actually he is a person of such position whose status is not denied by the respondent, would as a willing vendor might reasonably expect to obtain from willing purchaser I think, if not more at least the maximum rate of the land sold in the Mahal. On test of this principle, I would fear that if the compensation fixed by the Collector as approved by the learned District Judge would be fair, proper and adequate. The principle which I have referred to above has been elucidatory discussed in case, Vyricherla Naravana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam (AIR 1939PC98). The proposition laid down by their Lordships is :‑ "The compensation must be determined therefore by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser. The disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy must alike be disregarded. Neither must be considered as acting under compulsion. This is implied in the common saying that the value of the land is not to be estimated at its value to the purchaser. But this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. The wish of a particular purchaser, though not his compulsion, may always be taken into consideration for what it is worth. But the question of what it may be worth, that compensation to be awarded is one that will be dealt with later in this judgment. It may also be observed in passing that it is often said that it is the value of the land to the vendor that has to be estimated. This however is not in strictness accurate. The land, for instance, may have for the vendor a sentimental value far in excess of its "market value". But the compensation must not be increased by reason of any such consideration. The vendor is to be treated as a vendor willing to sell at "the market price", to use the words of section 23 of the Indian Act. It is perhaps desirable in this connection to say something about this expression "the market price". There is not in general any market for land in the sense in which one speaks of a market for shares or a market for sugar or any like commodity. The value of any such article at any particular time can readily be ascertained by the prices being obtained for similar articles in the market. In the case of land, its value in general can also be measured by a consideration of the prices that have been obtained in the past for land of similar quality and in similar position, and this is what must be meant in general by "the market value" in section

23. But sometimes it happens that the land to be valued possesses some unusual, and it may be, unique features as regards its position or its potentialities. In such a case the arbitrator in determining its value will have no market value to guide him, and he will have to ascertain as best as he may from the materials before him, what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities."

36. In view of such position as discussed above, I fear that I cannot in any way agree with the finding of the learned District Judge on this issue. Consequently, the decision of the learned District Judge on Issues Nos. (iii) and (iv) is set aside.

37. Indeed, I am of the view that the appellant should have been paid the compensation at the rate of Rs. 21,272 per acre, with compulsory acquisition charge of 15 % and at the compound interest of 8 %. The compound interest at the rate of 8 % was neither considered by the Collector nor by the District Judge. It appears that the appellant has not claimed such rate before them. The provision of the compound interest at the rate of 8 % has come in vogue by West Pakistan Amendment Act in 1969.

38. However, as already I have held that the reference made by the Collector at its outset is not maintainable in law as was sought beyond period of limitation as such no relief could be given to the appellant at this stage in this appeal.

39. For the foregoing reasons, I have no other alternative, but to dismiss the appeal. . In view of my such findings, the appeal stands dismissed. As complicated questions of law and facts are involved in the appeal, I would therefore refrain from awarding the costs of the proceedings to any party. Eventually the parties shall have to bear their own costs.

40. The appeal is disposed of accordingly. S. A. H. Appeal dismissed.