2010 PLP 1523 (SCMR)

JAVED IQBAL, J

This petition for leave to appeal is directed against judgment dated 9-5-2005 passed by learned Division Bench of Lahore High Court, Lahore, whereby Regular First Appeal preferred on behalf of petitioner has been dismissed.

2. Precisely stated the facts of the case are that "the land of the predecessor of the appellant and other land owners was acquired by the respondents under the provisions of Land Acquisition Act. According to the notification issued under section 4 of the Land Acquisition Act, total land measuring 214 Kanals and 5 Marlas of the village in question was acquired out of which 24 Kanals and 11 Marlas was owned by the predecessor in interest of the appellant. The Land Acquisition Collector announced the award on 8-7-1997 according to which Rs.180,000 was determined as compensation per Acre along with 15% compulsory charges and 8% compound interest. The predecessor in interest of the appellant being aggrieved filed reference under section 18 of the Land Acquisition Act before the Referee Judge on 10-9-1997. The respondents filed written statement. Out of divergent pleadings of the parties the trial court framed the following issues:-- (1) Whether compensation awarded to the present petitioners of their land was under valued, if so what was the market value of the property acquired by the department and whether the petitioners are entitled to enhancement of compensation of land acquired, if so to what extent? OPP (2) Relief. The reference was dismissed by the trial court vide impugned judgment and decree dated 24-9-2001. Being aggrieved a Regular First Appeal was preferred but dismissed vide judgment impugned, hence this petition.

3. Syed Muhammad Kaleem Ahmed Khurshid, learned ASC critered appearance on behalf of petitioner and contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is submitted that order dated 6-6-1996 passed by the learned District Collector which has attained finality escaped the notice of learned Division Bench which caused serious prejudice against the petitioner. The learned ASC has further submitted that the learned District Collector has categorized the land in question as superior to the other lands located in the same Mouza. It is next contended that the report of Local Commissioner has been ignored without assigning any reason and more so the learned Division Bench has not dilated upon the documentary evidence i.e. Exh.P/2 to Exh.P/4. It is urged with vehemence that the judgment impugned is in violation of the provisions as enumerated in Article 24 of the Constitution which, inter alia, provides that no person shall be deprived of his property save in accordance with law further more that no property shall be compulsorily acquired or taken into possession of save for a public purposes and save by the authority of law which 'provides for compensation therefore. It is argued that petitioner has substantiated his claim qua the nature of land which, according to learned ASC, is commercial and located along the road side and thus it has no comparison with the other chunks of land located in the same Mouza in view of the difference between the locations which could not be noticed by the learned Division Bench of Lahore High Court. The learned ASC has invited our attention to the dictum laid down by this Court in cases titled Collector of Karachi v. M. N. E. Dinshaw (PLD 1965 Karachi 557) and Water and Sanitation Authority v. Niaz Muhammad (1994 SCMR 1648), which according to learned ASC, have been ignored by the learned Division Bench of the High Court. It is also pointed out that the land was acquired through coercive means and that too in the absence of father of the petitioner who was condemned unheard and accordingly such acquisition would have no legal sanctity. It is argued in the end that petitioner is entitled to get compensation in view of the potential and location of the land. It is also contended that the report of Deputy Director, National Highways Authority, namely Murtaza Ali Khan Bhindari, should have been taken into consideration by whom the price of the land in question was assessed at the rate of Rs.10000 per marla. Learned ASC remained critical of the fact that Aks Shajra Kishtwar which was available on record could not be taken into consideration by the learned Division Bench of the Lahore High Court.

4. Mr. Fauzi Zafar, learned ASC entered appearance for caveat/ respondents and supported the judgment impugned for the reasons enumerated therein with the further submission that nature of the land in question was not commercial but on the contrary it was an ordinary piece of land located in the same Mouza and no preferential treatment can be given to the petitioner as all the owners of vicinity having similar land had accepted the compensation except the petitioner who had received compensation qua trees. It is also submitted that no illegality, irregularity or infirmity could be pointed out by Syed Muhammad Kaleem Ahmed Khurshid, learned ASC on behalf of petitioner warranting interference in the concurrent findings of facts recorded by the courts below.

5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have minutely perused the judgment/decree dated 24-9-2001 passed by learned Sr. Civil Judge. We are of the considered opinion that it is not a case of misreading or non-reading of evidence which remained the prime contention of Syed Muhammad Kaleem Ahmed Khurshid, learned ASC on behalf of petitioner. The learned Referee Judge has dilated upon the controversy after having scrutinized the entire record and framing of proper issue which is as follows:-- "Whether compensation awarded to the present petitioners of their land was under valued, if so what was the market value of the property acquired by the department and whether the petitioners are entitled to enhancement of compensation of land acquired, if so to what extend? OPP."

6. The learned Referee Judge has examined the entire documentary evidence in depth and conclusion arrived at is strictly in accordance with the evidence and record which is reproduced herein below for ready reference:-- "It was agricultural property according to the entries in the revenue record. The construction of kiln-bricks did not increase the value of property but it creases the value of agricultural land. The digging is made in the land and value of property decreases with the passage of time. The kiln-Bricks was not in working condition. Cost of standing trees and other structure was paid to the petitioner to the tune of Rs.5 lac. The petitioner has already received that amount. The difference in the agricultural land and the commercial value has already been paid to the petitioner. The copy of Aks Shajra shows that the khasra Nos. 15/2 and 6/2 are on the road side and according to the award, and was acquired to the extent of 2 kanals 10 marlas in Khasra No.6/2/ 1 and land measuring (sic) kanal 5 marla from Khasra No.15/2. Rest of the land was not existing on the road side it was away from the road side. The average cost of the land was properly assessed."

7. It is worth mentioning that the determination of learned Referee Judge has been upheld by the learned Division Bench of High Court after having taken into consideration the oral and documentary evidence. The relevant portion of the judgment impugned is reproduced herein below for ready reference:-- "The appellant failed to bring on record any document to show that the land of the appellant is superior as compared to the other owners of the Mauza in question and the land of the appellant is situated on the road side whereas the trial court has rightly after appraisal of evidence given finding against the appellant that value of the land of the appellant was decreased on account of brick kiln installed by the appellant which was not in working condition. In other words there has not been adduced evidence about the location of the suit land as at what distance the suit land is situated from the road except that land is situated at 87/88 Karam from road which brings the case of the appellants in an area that it is a case of insufficient evidence on record. It is settled law that burden of proving the entitlement to higher rate of compensation is on the land owner. Reference in this context may be made to Government of India and others v. Muhammad Usman and others (1984 CLC 3406). The mere statement of owner without supportive evidence would be inconsequential. In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment. This appeal has no merit and the same is dismissed."

8. We have not persuaded to agree with the prime contention of learned ASC on behalf of petitioner that order dated 6-6-1996 passed by learned District Collector, Sheikhupura should have been taken into consideration which is reproduced as under:--

9. We have perused the above mentioned order which is non-speaking and no reasoning whatsoever has been given rather the report of Tehsildar has been endorsed without diligent application of mind. The powers as conferred upon the District Collector, Sheikhupura were never exercised properly rather the price has been fixed in a casual and cursory manner. No documentary or oral evidence whatsoever was discussed or relied upon by the learned District Collector, Sheikhupura. Much stress has been laid down on the said order in oblivion of the fact that it was set aside vide order dated 12-2-1997 by the District Collector, Sheikhupura which runs as under:-- "The estimated cost of land was initially assessed at the rate of Rs.1,80,000 per acre (i.e. Rs.1125 per marla) in accordance with the provisions of Rule 10(i)(iii) of the Punjab Land Acquisition Rule, 1983. Therefore, the revision petition of the National Highway Authority is accepted. The petition of Wali Muhammad for assessment of estimated cost of Land Rs.10,000 per marla is reject. The estimated cost of land initially assessed Rs.1125 per marla is reasonable and justified. I find no reason to alter it and the same is maintained."

10. The relevant portion of cancellation order as mentioned herein above would reveal that it has been passed in accordance with the Punjab Land Acquisition Rules, 1983 and after having taken into consideration all the relevant circumstances.

11. The learned ASC has also relied upon the provisions as enumerated in Article 24 of the Constitution of Islamic Republic of Pakistan by ignoring the well entrenched proposition of law that "before the State can deprive a person of his property, it has first to arm itself with a "law". Even where the law authorizes the Executive to deprive a person of his property under certain circumstances the Executive is bound to strictly follow the procedure which is laid down by the "law" for the taking of the property. Where a person is deprived of his property under the authority of law and according to the provisions of law, he has no ground for complaint under the Constitution." (Shankarlal v. Additional Deputy Commr., Nagpur AIR 1951 Nag. 22, Amar Singh v. Custodian, E. P. AIR 1957 SC 599, Basti Sugar Mills Ltd. v. State of U.P. AIR 1954 All. 538). The land in question was acquired by adopting the prescribed procedure as envisaged under the Land Acquisition Act and no illegality or infirmity could be pointed out showing that the prescribed procedure was ever violated.

12. In our considered opinion the petitioner has failed to substantiate that the land in question was superior as compared to the other land in the vicinity. It also could not be established that it was a commercial land and it could not be such because construction of brick-kiln installed by the petitioner was not disputed. It would have no bearing on merits of the case as to whether it was functional or otherwise but it indicates the nature of the land which by no stretch of imagination can be termed as commercial. The petitioner also failed even to point out the exact distance between the land in question and that of the road. The learned ASC was asked pointedly that as to how Aks Shajra Kishtwar could be taken into consideration which was never got exhibited hence no evidentiary value could be attached to it but no answer could be given.

13. The upshot of the above discussion is that the judgment impugned being well based does not warrant interference. The petition being meritless in dismissed and leave refused. S.A.K./A-99/SC Leave refused.