P L D 2001 Karachi 221 (PLP)

(iv) 1992 CLC 1775. (v) 1993 CLC 179. (vi) 1991 MLD 90. (vii) 1994 CLC

160. An unreported judgment of this Court in 1st Appeal No.19 of 1990 (Abdullah and others v. Assistant Commissioner and Land Acquisition Officer, Hyderabad and another), dated 4-11-1999 has also been produced. . The learned Additional Advocate-General has supported the impugned order of learned Additional District Judge and has submitted that the appellant having failed to file the specific claim and details in response to notice under section 9(3) of the Land Acquisition Act is debarred from claiming any amount in excess of compensation awarded by the collector. I have carefully considered the contentions raised before me, the impugned judgment and the material available on record. I am of the opinion that the learned Additional .District Judge has rightly dismissed the reference by placing reliance on the judgment of Honourable Supreme Court of Pakistan in case of Hyderabad Development Authority and another v. Karam Khan Shoro 1985 SCMR

45. In the cited judgment the land was acquired in Deh Jamshoro, Taluka Hyderabad in October, 1979. Incidentally the land in the present appeal is also situated in the same vicinity. The compensation in the cited case was awarded at Rs.20,000 per acre. In the cited case also the land in question was situated in the vicinity of several housing societies. In the cited case learned 3rd Additional District Judge, Hyderabad awarded the compensation at Rs.1,08,900 per acre which was reduced by this Court to Rs.70,000 per acre. In the cited case also land was situated within the limits of Hyderabad Municipal Corporation and it was held to be urban land but subject to agricultural use. The Honourable Supreme Court of Pakistan considered the provision contained in section 25 of the Land Acquisition Act, 1894. which reads as follows:-- "

25. Rules as to amount of compensation.

(1) When the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section 11. (2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector. (3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector." After reproducing above section, the Honourable Supreme Court has held as follows:-- "The section provides for three classes of cases. The first clause of the section refers to the case where the applicant has made a claim for compensation pursuant to a notice given under section

9. In that case, the amount awarded to him by the Court i.e. by the Judge to whom the reference is made shall not exceed the amount so claimed and at the same time it shall not be less than the amount awarded by the Collector under section

11. The second clause provides for the case where the applicant has refused to make such a claim or has omitted, without sufficient reason, to make such a claim. In such a case, the amount awarded by the Court shall in no case, exceed the amount awarded by the Collector. It follows, therefore, that if without any sufficient reason he has refused to take action before the Collector when the award is made, he cannot afterwards ask the Court to which the matter may be referred, to award more than the Collector has already done. The third case is under clause (3) and that relates to case when the applicant has omitted for a sufficient reason to make such a claim. In such a case the amount awarded to him by the Court shall not be less than and may exceed the amount awarded by the Collector." In the cited case a plea was taken that the compensation awarded was violative of the provision contained in section 9 of the Land Acquisition Act. However it was found that no notice under section 9 was served on the interested person and -therefore the plea taken on behalf of Hyderabad Development Authority was repelled and it was held that where notice under section 9 was not served the stringent provision of section 25(2) of the Land Acquisition Act cannot be applied. The Honourable Supreme Court held as under:-- "This statement clinches the matter. Where it was established that notices under section 9 were not served upon the claimant and the notices were not produced in the Court, it was held that it was not possible to say that the requisite notices according to section 9 were issued. The provisions of section 25(2) could not be invoked. As the claimants have omitted for sufficient reasons, to make their claim, they are entitled to enhance compensation. It was found that the claimant acted in good faith and there did not appear to be any negligence on their part. As the Courts below have found it appropriate to condone the default, it is not a matter on which the High Court could take a contrary view and set aside the decisions of the Courts below in second appeal. The stringent provision of section 25(2) can only be applied after a notice, which is strictly in compliance with section 9, subsections (2) and (8) has been served upon the landowners (AIR 1473 Mys.22). Thus, the appeal fails on this ground. " In the present case it is admitted position that the notice under section 9 was served on the appellant and therefore the law as laid down by the Honourable Supreme Court in the above case is fully attracted. The Honourable Supreme Court reiterated the law laid down in the case cited above in another judgment in the case of Muhammad Sharif v. Afsar Textile Mills Ltd, 1985 SCMR 1181 in the following terms:-- "Stricto jure, the exercise of the jurisdiction of the Court under sections 18 to 28 of the Land Acquisition Act is confined to the matter referred for determination, that is, to inquire into .the objections to the collector's award and to make an award upon the evidence before it. Sections 23 and 24 provide a criteria for determining the compensation to be awarded for the land acquired under the Act, These criteria also bind the Collector while assessing the amount to be awarded for the land acquired and it is for this purpose that subsection (2) of section 9 enjoins that all persons interested in the land should state the nature of their respective interest in the land and the amount and particulars of their claims to compensation for such interests, and their objections, if any to the measurement made under section 8 of the Act. Section 11 of the Act provides for an inquiry by the Collector into the objections made by a person interested pursuant to the notice given under section 9 of the Act in respect of the interest in the land, the measurements made under section 8 and the value of the land at the date of the publication of the notification under section 4(1) of the Act. The inquiry is of an administrative nature and the award made is a decision conclusive qua the Collector under section 12 of the Act. It is only if a judicial ascertainment of value is desired by the owner that he can obtain it by requiring the matter to be referred by the Collector to the Court under section 18 of the Act. Reading sections 9, 11, 18 and 21 together what is imperative is that the claimant must give out the particulars of the claim as to the nature of the interest and the amount of compensation desired for it: In other words he should fully present his case before the Collector as this in terms is his pleadings to which he remains confined till the decision of the Collector in regard to the compensation payable. Necessarily, therefore, he is precluded from making out a fresh case either by way of supplementary claim to compensation or otherwise at the stage of judicial determination. This is what is emphasised by Cutgenven, J., in Secretary of State v. C.R. Subramania Ayyar AIR 1950 Mad. 576, and I see much substance in it as the pleadings are foundation for the grounds on which an objection is taken to the award while seeking a judicial determination under section 18 of the Act and the Court has no power to determine or consider anything beyond it. In the present case a higher amount was claimed pursuant to notice issued under section 9(2) but in the written application filed before the Collector a flat rate Rs.6,400 per acre was claimed as a value of the land acquired which to all intents and purposes had been pleaded and did not become the subject-matter of inquiry under section 11 of the Act. This being so it was a case where he had intentionally waived his right to claim a higher amount with the full knowledge of his existing right which, in law, amounted to an implied agreement not to claim a higher amount. Therefore, he could not later be allowed before the Court to which the matter was referred to re-assert his existing right to a higher amount as the matter referred for determination was his specific objection to the award, that is, the, value per acre of land, as its market price, irrespective of classification, and accordingly, the amount claimed was its integral part. A case directly in point is the Province of Bengal v. Ram Chandra Bhutika and others AIR 1994 Cal.

247. Support is also available from the review of other case such as the Land Acquisition Officer, Karachi v. Hiranand Lilaram AIR 1941 Sindh 52, Secretary of State v. C.R. Subramania Ayyar AIR 1930 Mad. 576 and Secretary of State v. Tikka Jagtar Singh AIR 1936 Lah. 733 and as held by the Judicial Committee in Pramata Nath Mulick Bahadur's case, the jurisdiction of the Court did not extend beyond the determination of this question as that was the specific matter. In this view of the matter, it could not be the case where the Collector had failed to consider any relevant criterion for assessing the market value of the land as provided in sections 23 and 24.of the Act as was the case in Province of Bengal v. P.L. Nun AIR 1945 Cal. 312." The law as laid down by the honourable Supreme Court has been followed by the Peshawar High Court in case of Pakistan through Secretary, Ministry of Defence and another v. Nizakat Shah and 7 others 1987 CLC 1844. It has been held in this case that the claimant must give out particulars of his claim, the nature of his interest and amount of compensation claimed for it. Claimant should fully present his case before Collector because it would be his pleading to which he would remain confined till decision of Collector. It has been further held that the claimant is precluded from making out a fresh case either by supplementary claim of compensation or otherwise at the stage of judicial determination. It has been further held that the G pleadings are foundation for grounds on which objection is taken to award while seeking judicial determination under section 18 and Court has no; power to determine or consider anything beyond pleadings. Respectfully following the dictum; laid down by the Honourable Supreme Court in the judgments cited above, I am of the considered opinion that the learned Additional District Judge has rightly rejected the reference for enhancement of compensation. Section 9(2) of the Land Acquisition Act reads as follows:-- "9(2). Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at the time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice) and to state the nature of their respective interests in the land and the amount and particulars of their claim to compensation for such interests, and their objections (if any) to the measurements made under section

8. The notice shall furthermore contain a direction to the effect that any person interested may, if he so chooses, while preferring his claim to compensation for his interest in the land, intimate to the Collector in writing his option that compensation be paid to him. The Collector may in any case require such statement to be made in writing and signed by the party or his agent-- (a) on the basis of the average price derived from the sale transaction in respect of which mutations have been attested during the five years immediately preceding the 30th June, 1939, and which relate to the same class of land in the same revenue estate in which the land to be acquired is situated; or (b) if no mutations of sale transactions of land in that revenue estate were attested during the five years preceding the 30th June, 1939, then on the basis of the average price derived from the sale transactions relating to the same class of land about which mutations have been attracted during the said period, in all contiguous revenue estates in the same assessment circle." The Collector before giving award is required to hold inquiry under section 11 of the Land Acquisition Act. The claim as is required to be preferred and the particulars of the claim are in the nature of pleadings on' behalf of claimant which forms foundation for subsequent inquiries including the inquiry under section 11 of the Land Acquisition Act by the Collector arid reference made to the Court under section

18. The Collector is required' to confine the inquiry to the pleadings and the Court is also required to consider and to determine the amount of compensation on the basis of specific claim preferred by the claimant before the Collector. If no claim is preferred or no particulars and details, of the, compensation are filed in response to notice under subsection (3) and the objection is filed before the Collector in general terms, the stringent condition as expressed by the Honourable Supreme Court, contained in section 25(2) of the Land Acquisition Act shall come into play and preclude the Court from awarding any compensation exceeding the amount awarded by the Collector. In view of the unrebutted fact that particulars and specific amount of compensation was not furnished before the Collector in response to notice under section 9(3) of the Land Acquisition Act, it is held that the learned Additional District Judge rightly dismissed the reference to which no exception can be taken. The rulings on which the learned counsel for the appellant has placed reliance cannot be considered in the presence of bar contained in subsection (2) of section 25 of Land Acquisition Act. The impugned judgment and decree is therefore upheld on the point of compensation. However, I am persuaded to agree with the contention that the learned Additional District Judge ought to have allowed additional' compensation under section 28-A of the Land Acquisition Act at 15%. The, judgment and decree is therefore modified to the extent that the appellant is entitled to additional compensation at 15% per annum of the compensation awarded by Collector and upheld by the learned Additional District Judge, which shall be paid from the date of notification under section 4 of Land Acquisition Act to the date of payment of compensation as provided under section 28-A of the Land Acquisition Act. The appeal is partly allowed to the extent and manner indicated above. H.B.T./A-108/K Order accordingly.