IN THE HIGH COURT OF SINDH, KARACHI

Ist Appeal No.75 of 2017

[The Province of Sindh & others v. Nazir Ahmed Jangiain & others]

PRESENT:

Mr. Justice Arshad Hussain Khan

Mr. Justice Amjad Ali Sahito

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Appellants Through Barrister Sandeep Malani, AAG Sindh.

Respondents Through Mr. Irfan Mir Halepota, advocate.

Date of hearing 05.08.2026

Date of Decision 05.08.2026

JUDGMENT

ARSHAD HUSSAIN KHAN, J: Through the instant First Appeal, preferred under Section 96 of the Code of Civil Procedure, 1908, read with Section 54 of the Land Acquisition Act, 1894 (“the Act”), the Appellants have called in question the common order dated 26.12.2012 passed by the learned IIIrd Additional District Judge, Karachi-Central, while deciding Land Acquisition References Nos.01/2008, 01/2009 and 02/2009. By the impugned order, the learned Reference Court allowed the references filed by the Respondents/landowners under Section 18 of the Act and enhanced the compensation for the acquired land, originally assessed at Rs.10,000/- and Rs.6,000/- per square yard by the Land Acquisition Officer, to a uniform rate of Rs.25,000/- per square yard. The compensation towards the cost of construction was also enhanced to Rs.800,000/- in the case of Sardar Imam Bux and to Rs.400,000/- each in the cases of Mst. Zahra & others and Haji Saleh Muhammad. In addition, the Respondents were held entitled to compulsory acquisition charges at the rate of 15% under Section 23(2) of the Act on the enhanced compensation.

2. The essential facts giving rise to the instant appeal are that, at the request of the National Highway Authority (NHA), the land falling between the railway line and Sir Shah Suleman Road, situated in Deh Gujro, Tapo Songal, Liaquatabad Town, Karachi (“the subject land”), was acquired by the City District Government Karachi (CDGK) present KMC for a public purpose, namely, the construction of a traffic ramp for the Lyari Expressway Project. Pursuant to the acquisition proceedings, the Deputy District Officer (Revenue)/Land Acquisition Officer (LAO), Lyari Expressway Project, Liaquatabad Town, Karachi, passed awards under Section 11 of the Act, determining compensation for the acquired land at the rate of Rs.10,000/- per square yard in Land Acquisition References Nos.01/2008 and 01/2009 and Rs.6,000/- per square yard in Land Acquisition Reference No.02/2009. Being dissatisfied with the quantum of compensation so determined, the Respondents/landowners received the awarded amounts under protest and sought references under Section 18 of the Act for determination of the proper market value of their respective lands.

3. The record reflects that, in the first round of proceedings, the learned Reference Court allowed the references vide judgment dated 14.11.2009. The said judgment was challenged before this Court through First Appeals Nos.19/2011 to 21/2011, which were allowed vide order dated 13.10.2011, whereby the judgment of the Reference Court was set aside and the matters were remanded for decision afresh after impleading of the necessary parties, including the Province of Sindh and the City District Government Karachi (CDGK). Upon remand, the requisite amendments were carried out, whereafter further evidence was recorded and the official witnesses were subjected to cross-examination. Upon reappraisal of the entire material available on record, the learned Reference Court decided the references afresh vide the impugned common order dated 26.12.2012 and enhanced the compensation in the terms already noted hereinabove.

4. Learned AAG Sindh, appearing on behalf of the Appellants, vehemently argued that the impugned common order dated 26.12.2012, passed by the learned Reference Court, is illegal, erroneous and contrary to the settled principles governing acquisition proceedings under the Land Acquisition Act, 1894. He submitted that the learned Reference Court failed to appreciate that the Respondents/landowners had voluntarily received the compensation awarded by the LAO under Section 11 of the Act without lodging any formal or written protest at the time of receipt thereof. According to him, in the absence of a clear and unequivocal protest at the relevant time, the Respondents were precluded from seeking enhancement of compensation through references under Section 18 of the Act. He further contended that the references themselves were barred by limitation and that this material aspect was not properly considered by the learned Reference Court. It was also argued that the award of compulsory acquisition charges under Section 23(2) of the Act was made without proper application of mind and was, therefore, legally unsustainable. He lastly prayed that the instant appeal be allowed and the impugned common order be set aside.

5. Conversely, learned counsel appearing on behalf of the Respondents/landowners supported the impugned common order and contended that the same is well-reasoned, based upon proper appreciation of the material available on record, and does not warrant any interference by this Court. He submitted that the Respondents had received the compensation awarded by the LAO under protest and, therefore, were fully competent to seek references under Section 18 of the Land Acquisition Act, 1894, for enhancement of compensation. He further pointed out that the official witnesses, namely D.W-1 and D.W-2, admitted during their cross-examination that the notices issued under Section 9 of the Act did not disclose any proposed amount of compensation. According to him, such omission renders the objection raised by the Appellants regarding limitation devoid of merit. He further argued that the Price Fixation Committee, in its meeting held on 16.09.2006, had fixed/recommended the rate of Category A-1 land situated in Liaquatabad Town at Rs.25,000/- per square yard, which material determination was arbitrarily disregarded by the Land Acquisition Officer while assessing compensation at substantially lower rates. He, therefore, prayed that the instant appeal, being devoid of merit, be dismissed.

6. We have heard learned counsel for the parties and carefully examined the material available on record.

7. In view of the respective contentions advanced by learned counsel for the parties and the material available on record, the following points arise for determination in the instant appeal :-

i. Whether the references made under Section 18 of the Land Acquisition Act, 1894, were maintainable in view of the objection that the Respondents/ landowners had received the compensation awarded by the Land Acquisition Officer without protest?

ii. Whether the references under Section 18 of the Land Acquisition Act, 1894, were filed within the period of limitation prescribed thereunder and were, therefore, competent?

iii. Whether the learned Reference Court was justified, on the basis of the evidence and material available on record, in enhancing the market value of the acquired land to Rs.25,000/- per square yard?

iv. Whether the Respondents/landowners were legally entitled to compulsory acquisition charges under Section 23(2) of the Land Acquisition Act, 1894?

v. Whether the impugned common order dated 26.12.2012 suffers from any illegality, misreading or non-reading of evidence warranting interference by this Court in appellate jurisdiction?

8. Insofar as Point No.(i) is concerned, the stance of the Appellants is that the Respondents/landowners voluntarily received the compensation awarded under Section 11 of the Act, without lodging any formal or written protest and, therefore, having accepted the award, they were precluded from seeking enhancement of compensation by invoking Section 18 of the Act. The record, however, does not support such contention. D.W-2, Safdar Hussain Rizvi, former LAO, while appearing on behalf of the Appellants, produced the acknowledgment/payment receipts, which clearly reflect that the compensation was received by the Respondents “under protest.” Moreover, D.W-1, Syed Altaf Ali, DDO (Revenue), and D.W-2, Safdar Hussain Rizvi, former Land Acquisition Officer, admitted in their evidence that the landowners had raised objections to the award, received the compensation under protest, and thereafter submitted applications seeking reference of the matter to the Court for determination of proper compensation.

In view of such documentary evidence coupled with the admissions of the Appellants’ own witnesses, the contention that the Respondents had accepted the award without objection is devoid of merit. The material available on record sufficiently establishes that the Respondents did not unconditionally accept the compensation determined by the LAO; rather, they received the same under protest while maintaining their objection to the adequacy of compensation. Consequently, they were not precluded from seeking a reference under Section 18 of the Act for determination of proper compensation. Point No.1 is, therefore, answered against the Appellants and in favour of the Respondents.

9. Insofar as Point No.(ii) is concerned, the stance of the Appellants is that the references preferred by the Respondents/landowners under Section 18 of the Act, were filed beyond the prescribed period of limitation and, therefore, were not maintainable. Since the question of limitation for seeking a reference against an award made by the LAO is specifically governed by Section 18 of the Act, it would be appropriate, for proper appreciation of the controversy, to reproduce the said provision, which reads as under:—

"18. Reference to Court.--- (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 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."

The proviso to subsection (2) of section 18 provides three eventualities for determining the limitation for filing the reference application; i.e. (i) if the interested person/land owner was present before the Collector Land Acquisition when the award was made, then limitation for filing reference application will be six weeks from the date of Collector's award; (ii) if the interested person/land owner was not present before the Collector then a notice shall be issued to the interested person under section 12(2) of the Act, and limitation for filing application shall be six weeks from the date of receipt of notice; and (iii) if the interested person/land owner was not present when the award was drawn and the notice of the award under section 12(2) was not issued to such person then limitation shall be 6 months from the date of award. Clause (b) of subsection (2) of section 18 provides further that period whichever first expires will be the limitation for filing the application.

10. Under Section 12(2) of the Act, the Collector is under a statutory obligation to give immediate notice of the award to such person. In the absence of such notice or otherwise established knowledge, limitation cannot ordinarily be computed against the landowner merely from the date of the award. The rule is consistent with Allahdino v. Fakir Muhammad (PLD 1969 SC 582), where the Supreme Court recognized that a person kept unaware of an order cannot be deprived of the statutory remedy by reckoning limitation from the date of an order of which he had no knowledge.

11. In the instant case, the record reflects that although the Respondents were not served with any notice of the award as contemplated under the law, upon acquiring knowledge thereof, they expressed their dissatisfaction with the compensation determined therein, raised objections to the award, and requested the Land Acquisition Officer to refer the matter to the Reference Court under Section 18 of the Land Acquisition Act, 1894, for determination of proper compensation. Upon failure of the LAO to act upon their request, the Respondents were constrained to invoke the constitutional jurisdiction of this Court by filing C.P. No.D-543 of 2008, which was disposed of with a direction to the LAO to forward the award, along with the objections of the Respondents, to the competent Court under Section 18 of the Act for determination of proper compensation. Pursuant to the said direction, the underlying references came to be filed before the Reference Court. Moreover, the record does not establish that the mandatory notice contemplated under Section 12(2) of the Act was ever served upon the Respondents. Significantly, the Appellants have failed to produce any substantive documentary evidence demonstrating service of such notice upon them. In the absence of proof of service of the statutory notice, the period of limitation cannot be reckoned strictly from the date of the award so as to defeat the Respondents’ statutory right to seek a reference, particularly when the record itself demonstrates that they had objected to the award and had actively pursued their remedy by approaching the LAO and thereafter this Court.

In these peculiar circumstances, and keeping in view the principle that limitation cannot operate against a person who has not been duly notified of the award in the manner prescribed by law, the references cannot be held to be barred by limitation. The objection raised by the Appellants on this score is, therefore, without merit and is accordingly repelled.

12. Insofar as Point No.(iii) is concerned, the principal grievance of the Appellants is that the learned Reference Court enhanced the value of the acquired land from Rs.10,000/- and /Rs.6,000/- per square yard, as the case may be, to Rs.25,000/- per square yard without there being sufficient evidence on record to justify such enhancement. We have, therefore, examined the evidence and material available on record in order to ascertain whether the enhanced rate is supported by any reliable basis.

13. The record reflects that the subject land was acquired pursuant to Notification under Section 4 of the Act, dated 18.11.2006, followed by Notifications under Sections 6 and 17 dated 20.06.2007. Significantly, prior to issuance of the Notification under Section 4, the Price Fixation Committee had considered the rates of different categories of land in the locality. The minutes of the relevant meeting, circulated vide letter dated 16.09.2006, show that land falling in Category A-1 was valued at Rs.25,000/- per square yard. The subject land admittedly falls within the said category. The said valuation, having been determined shortly before the acquisition proceedings commenced, constituted relevant and material evidence for assessing the prevailing value of land in the locality. More importantly, D.W-2, Safdar Hussain Rizvi, the then Land Acquisition Officer, who himself participated in the proceedings of the Price Fixation Committee, admitted during cross-examination that Category A-1 land had been valued at Rs.25,000/- per square yard. Though he attempted to explain that the rate was meant for auction of Government land, he simultaneously admitted that where privately owned land was adjacent to Government land, the same rate would be applicable. He further admitted that the word “auction” did not find mention in the minutes themselves. Such admission materially supports the case of the Respondents and weakens the justification offered by the Appellants for disregarding the rate determined by the Price Fixation Committee. Conversely, the award passed by the LAO does not disclose any satisfactory or discernible basis for determining the acquired land at Rs.10,000/- per square yard in two references and Rs.6,000/- per square yard in the other. The evidence rather indicates that the rate was fixed at the instance of, and on the basis of a communication from, the NHA. The LAO admittedly did not undertake an independent exercise for determination of compensation in accordance with the factors prescribed under Section 23 of the Act. No comparable sale transaction, prevailing market rate, location, potentiality, commercial utility or other relevant material appears to have been independently evaluated by him before fixing the compensation.

14. Section 23 of the Act requires determination of compensation upon consideration of the market value of the land as on the date of publication of the Notification under Section 4(1), besides other statutory factors. The expression “compensation” is not necessarily confined to the bare market price of the property. The potentiality and advantages attached to the land and the uses to which it is reasonably capable of being put are also relevant considerations. The Hon’ble Supreme Court in Malik Aman v. Land Acquisition Collector [PLD 1988 SC 32] and Province of Sindh v. Ramzan & others [PLD 2004 SC 512], while dilating upon the scope of Section 23, recognized the distinction between market value and compensation and reiterated that the potential value of the acquired land is a relevant factor in determining just compensation. Merely because the Respondents/landowners did not produce registered sale deeds of comparable properties would not, in the peculiar circumstances of the present case, render the rate adopted by the Reference Court without evidentiary foundation. The burden upon the landowners to establish their claim for enhancement does not permit the statutory authority to disregard relevant official material already forming part of the record, particularly when its own witness acknowledges such material. Here, the Price Fixation Committee’s determination was contemporaneous with the acquisition proceedings, related to the same category of land and was made only shortly before issuance of the Notification under Section 4. Its evidentiary value is further strengthened by the admissions of D.W-2 and the subsequent Notification dated 01.02.2007 issued by the Government of Sindh, Land Utilization Department.

15. In these circumstances, when the rate of Rs.25,000/- per square yard finds support from contemporaneous official material, whereas the substantially lower rates adopted by the LAO are not shown to have resulted from any independent exercise contemplated under Section 23 of the Act, no legal or factual infirmity can be attributed to the learned Reference Court for preferring the former. The enhancement cannot, therefore, be termed arbitrary, conjectural or unsupported by the record. Accordingly, we are of the considered view that the learned Reference Court was justified in determining the value of the acquired land at Rs.25,000/- per square yard. The finding of the learned Reference Court to this extent is based upon relevant evidence and does not call for interference in appellate jurisdiction. Point No. (iii) is answered in the affirmative.

16. As regards Point No.(iv), the Appellants have questioned the award of compulsory acquisition charges to the Respondents under Section 23(2) of the Act. The objection, however, does not appear to have substance. Section 23(2) of the Act provides that, in addition to the market value of the land determined under Section 23(1), the Court shall, in every case, award a statutory amount on account of the compulsory nature of the acquisition. The use of the expression “shall in every case award” makes the provision mandatory rather than discretionary. Once land has been compulsorily acquired and compensation is determined under the Act, the statutory addition contemplated by subsection (2) follows as a legal consequence and is not dependent upon proof of any separate loss by the landowner. The underlying object of the provision is also apparent. A person whose property is compulsorily acquired does not voluntarily enter into a transaction with the acquiring authority; rather, he is deprived of his property by operation of law for a public purpose. The additional amount prescribed under Section 23(2) is, therefore, intended to compensate the landowner for the compulsory character of such deprivation and is distinct from the market value determined under Section 23(1).

17. In the present case, there is no dispute that the lands belonging to the Respondents were compulsorily acquired under the provisions of the Act. Once the learned Reference Court determined the proper value of the acquired land, the Respondents became entitled, by operation of Section 23(2), to the statutory compulsory acquisition charges thereon. Such entitlement could not be denied merely because the amount of compensation originally awarded by the Land Acquisition Officer was subsequently enhanced by the Reference Court. The statutory addition necessarily attaches to the compensation ultimately determined as payable for the acquired land. Consequently, the learned Reference Court committed no illegality in awarding compulsory acquisition charges to the Respondents/landowners under Section 23(2) of the Act. The objection raised by the Appellants in this regard is, therefore, without merit. Point No. (iv) is also answered in the affirmative.

18. In light of the foregoing discussion, we have arrived at the conclusion that the impugned common order dated 26.12.2012, passed by the learned Reference Court, does not suffer from any factual or legal infirmity, misreading or non-reading of the evidence, warranting interference by this Court. The enhancement of compensation for the acquired land to Rs.25,000/- per square yard, along with the statutory benefits admissible under the Land Acquisition Act, 1894, is supported by the evidence available on record and is in accordance with law. Consequently, the instant First Appeal was found to be devoid of merit and liable to be dismissed.

The foregoing are the reasons for our short order dated 05.08.2026, whereby the instant First Appeal was dismissed, with no order as to costs.

JUDGE

Naveed PA