1988 PLP 1230 (CLC)

Shirimati Rajkumari 244 4.39 0.10 " 246 3.06 0.04 " 114 4.06 0.02 " 194 2.09 0 .15 " 195 4.07 2.00 " 205 2.18 0.18 " 148 9.35 0.05 " 215 5.10 4.01 Kevalram 220 6.01 0.01 Dayaram 229 2.08 1.08 Shahani 230 3.19 0.34 There is on record an application dated 8‑1‑1979 filed by the claimants/ appellants before the learned Arbitrator alleging that the acquiring authority is avoiding to obtain from the Director of Survey, Settlement and Land Record, the appropriate "Ghatwadh' forms of the acquired land and as such they may be directed to obtain the same. There is also another application on record by the claimants/ appellants requesting the learned Arbitrator to direct the acquiring authority to supply them a plan of the area acquired so that they may know exactly the boundaries of acquired land. Notices of both these applications were given to MEO but it appears that no reply on behalf of the acquiring authority to these applications was filed. However, witness Abdul Majid, DMEO who was examined in the case by the acquiring authority, in his evidence before the learned Arbitrator produced his parawise comments in the case in which in paragraphs 15 (a) to (c) it was stated that Mukhtiarkar, Badin, may be summoned to produce the relevant Deh map showing thereon the extent of the area acquired and may also be asked to produce copies of Ghatwadh forms prepared by them. In cross‑examination this witness admitted that he received a letter in June, 1977 from the District Magistrate enquiring as to how much land was handed over to MEO. He also stated that the measurement of land was taken by the Revenue authorities in presence of Garrison Engineer but he was not present at the time of recording of measurement of land. The attorney of claimants appellants Prem Kevalram Shahani in his evidence before the arbitrator specifically stated that the survey numbers referred to above though shown in the notification having been acquired partially were in fact fully acquired and were in possession of the acquiring authority. He further claimed that none of the appellants were allowed to enter upon the above survey numbers and that till today no measurement of the land had been taken and the excess area continued to be occupied by the acquiring authority. Although this witness was cross‑examined by the acquiring authority but his statement with regard to the total acquisition of the above survey numbers and its occupation by the acquiring authority was not at all challenged. The claimants appellants also summoned and examined in the case before the Arbitrator another witness Noor Muhammad, Inspector of Revenue and City Survey in the Office of Settlement Surveys and Land Record. This witness in his evidence before the learned Arbitrator stated that after 1972 his department did not receive any request for measurement of the land acquired in Deh Chandri, Bagarki and Lundki except one letter dated 6‑12‑1976 which he had received from the Mukhtiarkar; but with that letter neither any statement showing the land sought to be measured was attached, nor any mention of measurement charges to be paid to his department was made. He further stated that similar letter was also received by his department from MEO pertaining to the acquisition of land in the years 1972, 1974 and 1977 but he could not record the measurement as the area was converted into block survey. He also stated that he wrote to the Mukhtiarkar and the MEO Badin that in case they are interested in the measurement of land they should supply the land plan, land statement and charges for measurement as per rules and that after receiving these details he will prepare form 'B' as well as the Ghatwadh forms. This witness in his evidence gave full details of the procedure followed by them for the measurement of the land and preparation of 'Ghatwadh' form. No question in cross‑examination was put to this witness on behalf of the MEO (acquiring authority). Apart from it, on the file of second acquisition proceedings a combined map of all Dehs was produced before the learned Arbitrator as Ex.17 in which A the areas acquired in the acquisition proceedings of 1972, 1974 and 1977 are shown. From perusal of this Map it appears that most of the survey numbers referred to above which were shown to have been acquired only partially, fell within the limits of area demarcated on this Map as having been acquired in the above acquisition proceedings. The contention of the claimants /appellants that the survey numbers shown in the notification as partially acquired were in fact totally in possession of the acquiring authority, was specifically raised before the learned Arbitrator but he failed to give any finding in this regard. From the evidence on record in the case, the assertion made by the claimants/ appellants before the learned Arbitrator that the acquiring authority was occupying the entire area of the above survey numbers which were shown to have been acquired partially is well supported. The evidence on record also shows that still today neither the 'Ghatwadh' form of these survey numbers has been prepared nor any measurement has been recorded by any competent authority to ascertain the exact area acquired. No doubt in the notification issued for acquisition of Land, the above survey numbers are shown to have been acquired partially only but if the acquiring authority are in occupation of entire survey numbers they are liable to pay compensation for the same. The payment of compensation for acquired land is governed under section 18 of the Defence of Pakistan Ordinance, 1971 which reads as follows:‑ "

18. Compensation to be aid in accordance with certain principles or compulsory acquisition o immovable property, etc.‑‑ (1) Where under Section 19 or by or under any rule made under this Ordinance any immovable property, or a commercial or industrial undertaking or any interest in such undertaking is compulsorily acquired or taken possession of for a public purpose, there shall be paid compensation, the amount of which shall be determined in the manner, and in accordance with the principles, hereinafter set out, that is to say. (a) where the amount of compensation can be fixed by agreement, it shall be paid in accordance with such agreement; (b) where no such agreement can be reached, the Central Government shall appoint as arbitrator a person who has been, or is qualified for appointment as, a Judge of a High Court; (c) the Central Government may, in any particular case, nominate a person having expert knowledge as to the nature of the property acquired, to assist the arbitrator, and where such nomination is made, the person to be compensated may also nominate an assessor for the said purpose; (d) at the commencement of the proceedings before the arbitrator, the Central Government and the person to be compensated shall state what in their respective opinions is a fair amount of compensation; (e) the arbitrator in making his award shall have regard to‑‑ (i) the provisions of section 23 of the Land Acquisition Act, 1894 (I of 1894), so far as the same can be made applicable, and (ii) whether the acquisition is of a permanent or temporary character: Provided that where any property requisitioned under any rule made under this Ordinance is subsequently acquired under Section 19 or any such rule, the arbitrator in any proceedings in connection with such acquisition shall, for the purposes of the provisions of the said Section 23, take into consideration the market value of the property at the date of its requisition as aforesaid and not at the date of its subsequent acquisition; (f) an appeal shall lie to the High Court against any award of an arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government; (g) save as provided in this section and in any rules made thereunder, nothing in any law for the time being in force shall apply to arbitration under this section. (2) The Central Government may make rules for the purpose of carrying into effect the provision of this section. (3) In particular and without prejudice to the generality of the foregoing power, such rules may prescribe‑‑ (a) the procedure to be followed in arbitrations under this section; (b) the principles to be followed in apportioning the costs of proceedings before the arbitrator and on appeal and (c) the maximum amount of an award against which no appeal shall lie. It is common ground between the parties that no rules under Section 18 (2) of the Ordinance have been framed by the Central Government so far. On a careful reading of subsection (1) of Section 18 of the Ordinance I am of the view that where immovable property is either compulsorily acquired or taken possession of under the Ordinance, for public purpose, compensation is payable in respect thereof which is to be determined in accordance with clauses (a) to (g) of subjection (1) of the Section 18 of the Ordinance. Sub‑clause (e) (i) of subsection (1) of Section 18 makes section 23 of the Land Acquisition Act applicable for determining the compensation for the B properties acquired under Sections 18 and 19 of the Ordinance. The compensation so determined is, therefore, payable both in respect of the land compulsorily acquired or taken possession of under the Ordinance. Since the evidence recorded before the arbitrator shows that the above survey numbers are fully in possession of the acquiring authorities and they also fall within the limits of the acquired land, I am of the view that both Shirimiti Rajkumari and the deceased Kevalram Dayarm Shahani were entitled to compensation for the excess not covered by the notice of acquisition. Such excess area of land owned by Shirimiti Rajkumari comes to 31‑24 acres while that of late Kevalram Dayaram Shahani comes to 9‑17 acres. In Appeal No.62 of 1979 the appellant Prem Kevalram Shahani contended that the learned Arbitrator while giving his award has held that in respect of 38.24 acres of land of the appellant the acquiring authorities had only acquired easementary right and as such the learned Arbitrator awarded compensation at half the rate of the other lands which were totally acquired. The grievance of the appellant is that although it is alleged by the acquiring authority that they have acquired only easementary right in respect of 38_24 acres but in fact they are in possession of that area and the appellant has no excess to it. There is nothing in the evidence produced by the acquiring authority before the Arbitrator to show that the land in respect whereof it is claimed that only easement rights were acquired is not in possession of acquiring authority or that the appellant continues to enjoy possession and benefit of that land in spite of acquisition of easementary right by the Government. Apart from it I have already re‑produced Section 18 of the Ordinance of 1971, and failed to find anything therein in support of the proposition that the Government could acquire assessment rights in the land without acquiring the land itself. The acquisition proceedings contemplated under the above section could either be of a permanent or a temporary nature. No other category of acquisition is contemplated under the above provisions of law. Learned counsel appearing for the Government in the above cases is unable to point out any provision in the Ordinance, 1971, or in the rules framed thereunder or anything in Section 23 of the Land Acquisition Act, which permitted acquisition of easementary right only without acquiring the land itself. The learned Arbitrator while dealing with this aspect of the case observed as follows in his award. "

7. While parting with the papers I would make the observation that a letter dated 10-2‑1974 by M.E.O. to the Deputy Commissioner, Hyderabad, indicates that certain survey numbers in Desh Sandki, Lundki and Chanri were shown as an area on which easement rights were to be acquired. In that letter appendix 'M' and '0' are attached. I find that the Deputy Commissioner had issued notices that these areas were actually acquired but it seems that only. easement rights were acquired. That is to say that no cultivation is to be grown over 15 feet in height. This is indicated in the map attached with the same letter. The claimant Mr. P.K. Shahani has pointed out that easement rights were acquired. It is quite clear from these letters placed on record and produced by Mr. Abdul Majid, DMEO that a total area of 94 acres and 16 ghuntas in Deh; Chanri, 37 acres and 15 ghuntas in Deh Lundki and 2 acres and 33 ghuntas in Deh Sandki, are involved so far the acquisition of easement rights are concerned. A fair compensation is demanded in respect of easement rights and I hereby, fix and determine 50 per cent; of the market value to each acre awarded in 1947 to be the compensation in respect of the easement rights. Annexure 'E' is hereby attached to show the compensation in respect of the easement rights." I have not been able to understand at all what is meant by the learned Arbitrator while he is referring to the acquisition of only easement right of appellants over the above survey numbers. It cannot be disputed that if at all acquisition of easementary right was permissible under the law, firstly, it must be shown what easement rights were possessed by the appellant in the disputed land and secondly to what extent these rights were proposed to be acquired by the authority. The alleged restriction with regard to the cultivation over the above area of land sought to be imposed on the appellant by the acquired authority, in my humble view, cannot in any manner constitute acquisition of any easementary right of the appellant in the land. From the letter of Deputy Commissioner which is referred in the award of the learned Arbitrator it is quite clear that the above area of the land was acquired for the acquiring authority. In these circumstances I am of the view that the appellant is entitled to D full compensation in respect of 38‑20 acres of land which is shown to have been acquired only to the extent of easement rights of the appellant. Having dealt with the above contentions I will now consider the remaining contentions of claimants /appellants in Appeals Nos.61 and 62 of 1979. The claimants/ appellants besides contending that the rate of compensation awarded by the learned Arbitrator was below the prevalent market value of the land, have urged that the learned Arbitrator failed to award any compensation for severance of other land of claimants/ appellants, besides omitting to award damages for standing crops on the acquired land and sudden dispossession of claimants/ appellants from acquired land. It is also contended by them that the award of damages for injurious affection to the other land of claimants/ appellants was unrealistic and contrary to the provision of Section 23 of the Land Acquisition Act. Lastly it is contended that the rate of interest awarded was not in accordance with the law. On the other hand in Appeals Nos.19 and 20 of 1981 filed on behalf of the Government it is contended that the rate of compensation awarded by the learned Arbitrator was in excess of the prevalent market value of the land on the date of acquisition. The learned Arbitrator awarded compensation for the lands situated in Deh Chanri at the rate of Rs.2,000 Rs.2,500 and Rs.3,000 per acre, acquired in the years 1972, 1974 and 1977 respectively. As against this the claimants/ appellants are claiming compensation at the rate of Rs.5,000 per acre for these lands. The appellant Government on the other hand is contending that the compensation for the acquired land should not have been awarded in excess of Rs.1,000 per acre which was the fair value on the date of acquisition according to evidence on record. It is not disputed by the learned counsel for the Government that the provisions contained in Section 23 of the Land Acquisition Act were applicable to the proceedings for awarding compensation for the acquired land under the Ordinance and as such all those considerations which are relevant in determining the compensation of land under the above provisions of law were applicable before the learned Arbitrator in these cases as well. On the point of market value of the land, the appellants have relied on the oral evidence of Aftab Ali, Haji Fariduddin Siddiqui, Mr, Murad Ali, Ghulam Ahmed, Muhammad Hashim, D.H. Khan and Bashir Ahmed Assistant Commissioner of the area. From the oral evidence of these witnesses it appears that the market value of the land in the affected areas was estimated between Rs.1,500 to Rs.5,000 per acre keeping in view the location and quality of land. In addition to above oral evidence, the D.M.E.O. in his evidence before the arbitrator produced the report of Barrage Mukhtiarkar (Ex‑39) showing the Government rates for sale of land per acre to Haris and Zamindar in Deh Chanri and Bagharki. According to Ex.39 the Government sold land in the above Dehs to Haris and Zamindars between Rs.200 to 350 per acre. The acquiring authority also produced the report of A.C. Badin (E‑40) which shows that the value of land in the above dehs as reported by Tapedar of the area was Rs.1,500 per acre. The Sub‑Registrar of Badin also produced on record a sale deed for 20 ghuntas of land in Deh Chanri for the year 1971 showing the sale of land for Rs.450. The learned Arbitrator, in his award, found that there was no actual sale in the area, where the land was acquired, during past five years preceding the date of acquisition and accordingly the learned Arbitrator was of the view that it was not possible to arrive at the fair market value of the land on the basis of actual sale. The learned Arbitrator, however, after taking into consideration some sale transactions of adjoining acres which were mentioned before him by the Sub‑Registrar, Badin, in his evidence calculated the market value of the acquired land as Rs.2,000 per acre in 1972, Rs.2,500 per acre in 1974 and Rs.3,000 per acre in the year 1977. In arriving at the above market value the learned Arbitrator took into consideration the potentialities of the land, the future prospect and the vicinity of the two sugar mills, which were recently constructed near the acquired lands. It is contended on behalf of the appellant that, while fixing the market value of the land, no real basis was spelt out in the award, and the valuation has been fixed arbitrarily on the basis .of guess work. It is also contended that the oral evidence before the arbitrator did show that the market value of the land in the vicinity as well as in the area was between Rs.5,000 to Rs.8,000 per acre, which the learned Arbitrator should have accepted in the absence of any contrary evidence. Alternatively, it is contended on behalf of the claimants/ appellants that there was evidence available before the learned Arbitrator to show that the land was let out on leases between Rs.250 to Rs.300 per acre, and taking the lower amount of lease money, if the amount of compensation is calculated on the basis of fourteen years' income, the rate of per acre would come to Rs.4,200 while, on twenty years' basis, it will come to Rs.5,

000. To support his contention that the above calculation, which is popularly known as Baker's formula, has been followed by the Superior Courts, reliance was placed by the learned counsel on the case reported in PLD 1977 Kar.

203. After going through the evidence recorded in the case on the point of market value of the land I find that the witnesses produced by the claimants /appellants to establish the market value of land, had stated the value of the land between Rs.1,500 to Rs.5,000 per acre, depending upon quality of the land. For instance, Aftab Ali, who owns agricultural land in Taluka Tando Bagho, District Badin, stated that he would sell his land from Rs.1,500 to Rs.5,000 per acre, depending on its quality. He also stated that he has seen the land of P.K. Shahani, and, at some places, this land is good, while in other places, it is not so good. On the whole, he opined that P. K . Shahani's land was better than his land. Similarly, Haji Fariduddin Siddiqui, who is also a Zamindar and holds land in Talhar, Badin, stated that the land near about sugar factory would fetch about Rs.3,000 to Rs.5,000 per acre. Mir Murad Ali, who writes articles on agriculture also stated that the price of the land in Talhar, Badin, close to Pucca road and close to sugar factory and Mandi would be between Rs.3,000 and Rs.5,000 per acre. Ghulam Ahmed, who owns land in Talhar town also stated that the average price of land in their area is about Rs.3,000 per acre, and, in the year 1972, the price was almost the same. With regard to the land of Mir Ali Bux and Mir Ali Muhammad, he also stated that it would fetch Rs.3,000 per acre as the value of the land. Wing‑Commander (Retired) Dost Muhammad in his evidence, stated that, during his service in the Air Force from 1942 to 1964, he had been acquiring lands at various places through the Military Estate Officer. He stated that the sugarcane is an obstruction to the aircraft and a danger to the life of the pilots. He also stated that after his retirement, he has adopted the profession of a farmer, and he is presently residing in PAF Chak at Karachi in Badin District. He stated that he is a Member of the Sugarcane Control Board and District Sugarcane Board. He claimed that, on occasions, he took on lease land in Badin Taluka for Rs.3,000 per acre per year, which is still the prevailing rate of lease. Bashir Ahmed, Assistant Commissioner, Badin, was also examined, and he stated that the market value of the land in the area between Rs.2,000 and Rs.3,000 per acre. It is significant that the evidence of all the above‑referred witnesses was recorded much after the acquisition of the land in the year 1978, while the statement of Bashir Ahmed was recorded on 19‑2‑1979. Bashir Ahmed was examined as the witness of the appellant, and he stated in his evidence that he has been working as the Revenue Officer in Badin for the last one and half years, and he further stated that from his experience, he could say that during the years 1972 to 1974, the approximate value of the land in the area was between Rs.500 and 2,000 per acre. He is an official witness and there is no reason for him to depose falsely and exaggerate his evidence. His evidence was recorded, as stated earlier, on 19‑2‑1979, when he gave the present market value of the land between Rs.2,000 and Rs.3,000 per acre, and also stated that, in the years 1972 and 1974, the value of land was between Rs.500 and 2,000 per acre. After considering the above‑referred evidence, it cannot be said that the award of compensation by the learned Arbitrator at the rate of Rs.2,000 per acre for the year 1972, Rs.2,500 per acre for the year 1974 and Rs.3,000 per acre for the year 1977 was without any basis and based on mere conjectural assessment. In fact, majority of the witnesses examined in the case by the claimants stated the value of the land in the year 1978 between Rs.2,000, Rs.5,000 per acre while Assistant Commissioner of the area, who is also a Revenue Officer and was examined by the appellant, stated the value of the land in 1979 as between Rs.2,000, 3,000 per acre and between Rs.500, Rs.2,000 per acre in the year 1973‑74‑ In these circumstances, the learned Arbitrator neither acted in an arbitrary manner nor against the evidence on record in fixing the compensation of the land at the rate of Rs.2,000 per acre in the year 1972, Rs.2500 per acre in the year 1974 and Rs.3,000 per acre in the year 1977. No doubt, one of the witnesses, namely, Wing‑Commander (Retired) Dost Muhammad, stated in his evidence that he had obtained some land at the rate of Rs.3,000 per acre, but no detail with regard to the year in which he obtained the land nor the place where he obtained this land were disclosed by him. Similarly, the statement of P.K. Shahani that the land in the area could be let out for Rs.2,500 per acre per year is also unsupported by any documentary evidence. The submission of the learned counsel for the Government in this behalf that the compensation should have been fixed by the learned Arbitrator according to the value disclosed in the sale‑deed produced by the Sub‑Registrar of the area is equally F without force. The learned Arbitrator for very cogent reasons stated in his award refused to rely on the same as a guideline to arrive at the fair market value of the land. I, therefore, see no reason to interfere with the market value of the land fixed by the learnt Arbitrator for awarding compensation to claimants /appellants. The second claim of appellants /claimants relates to grant of damages for standing crop on the acquired lands on the date of taking over of its possession. The learned Arbitrator in his award referred to the inventories prepared at the time of taking over of the possession, and awarded compensation on the basis of that inventory. It is found by the learned Arbitrator in his award that apart from that inventory, no other inventory was prepared and, in ,the absence of that, he could not award any damages for the standing crop. The appellants have not been able to point out any evidence on record to show that at the time of taking over of the possession of the land in the years 1972, 1974 and 1977, there existed any; cultivation on the acquired survey numbers. No doubt the claimants/ appellants in their evidence before the Arbitrator asserted that at the time of taking over possession of the land there was cultivation on these survey numbers and they also produced on record copies of Khasra Girdwari to show that these lands were under cultivation during the relevant period but this evidence was not sufficient to establish the existence of cultivation on the acquired land on the date of taking over of its possession. In these circumstances the learned Arbitrator rightly refused to award further compensation for the standing crop on the acquired land. The third item of claim of appellants/ claimants relates to damages suffered by them on account of severance of their other lands in the area from the acquired land. It is contended by them that, on account of acquisition of the land in Deh Chanri, their other lands situated in the same Deh and in other Dehs, were adversely affected, as all these lands were one joint compact agricultural unit and were administered from the bungalow, which the appellants has constructed in Deh Chanri. The learned Arbitrator while disallowing the claim of claimants for severance of their other. land observed as follows: "It is necessary to understand as to what is meant by damages for severance. It precisely is that if a portion only of a property is acquired the remaining portion which is un-acquired may be reduced in value and if the owner can show that the award for the portion acquired plus the value of the remaining un-acquired portion is less than the value of the whole before acquisition, then a claim for severance will be justified. The meaning of injurious affection is that if the purpose for which land is acquired may injuriously affect lands adjacent and in the same ownership. It is contended by Mr. P.K. Shahani that due to the construction of run‑way and air strip the adjacent un-acquired areas would not sow paddy and sugarcane because it would cause damage by seepage to the aerodrome, there was a restriction for such a cultivation. Thus his contention is that, he is entitled for special damages for injurious affection. Let me take up these two kinds of damages one by one. It must be brought that the claims for injurious affection must be made at the time of acquisition. As for the damages for severance, the owner has to show that the award for the portion acquired plus the value of the remaining un-acquired portion is less than the value of the whole before acquisition. It is only if this condition is fulfilled the claim for severance would be justified. It has not been proved that the value of the whole before acquisition would be more than what award I have given as market value per acre. In my considered opinion, unfortunately, none of the claimants have proved such a value and in my opinion the award that I have given per acre, in fact, covers the damages in respect of severances. I may further observe that the claimants are in facts justified for a fair amount of damages for injurious affection. This is because there would be restriction on cultivating of paddy and sugarcane because the aerodrome would be water‑logged. Definitely, the un-acquired survey number is injuriously affected and is rendered useless for cultivation. Therefore, I hereby determine that claimants whose survey numbers were partially acquired they should get damages of Rs.500 per acre for the lands not acquired in one survey number. The calculation and the figures are worked out in Annexure 'B' to this Award." The appellants/ claimants contended that the claim for severance of their other land in the area is independent of their other claim relating to injurious affection to their other land on account of acquisition but the learned Arbitrator mixed up both these claims together and thus failed to award compensation separately for each one of them. It is true that under Section 23 of the Land Acquisition Act the claim for severance of other land of claimant as a result of acquisition is to be considered separately and distinctly from the claim of injurious affection of the other land of claimant on account of acquisition but for each such claim the claimant is bound to lead specific evidence of damages and adverse affect on his other lands. The reasoning given by the learned Arbitrator for disallowing the H claim for severance of the other land of claimants/ appellants on its face appears to be very logical and convincing and the appellants/ claimants are unable to point out any evidence on record to establish any direct and adverse effect on their remaining lands pointed out by the learned Arbitrator as a result of severance of the acquired land from the rest of their land, I, therefore, see no reason to interfere with this part of the order of learned Arbitrator. However, with regard to the claim of claimants appellants, for injurious affection to their other land in the area on account of acquisition, the position appears to be different. The learned Arbitrator though found in his award that other adjoining lands of the claimants are affected adversely on account of construction of air strip on the acquired land, as the appellants/ claimants are now precluded from carrying on cultivation in a substantial part of area adjoining to the air strip, but the learned Arbitrator restricted award of compensation for injurious affection to the claimants /appellants only in respect of un-acquired portions of those survey numbers which were partially acquired in the above proceedings. The appellants /claimants contended that the above approach of the learned Arbitrator was against the underlying object of fourthly clause of subsection (1) of Section 23 of the Land Acquisition Act. It is urged that not only the remaining portion of the survey number acquired but the farming unit as a whole was injuriously affected on account of acquisition as such the learned Arbitrator should have awarded compensation in respect of the entire remaining land, and not in respect of only the un-acquired portion of a particular survey member. It is claimed that, on account of acquisition of appellant land in Deh Chanri, and construction of air strip thereon t the remaining land in the' area has been injuriously affected, as the water supply on account of the construction of the air strip has been blocked through the old water course R‑

14. It is also urged that, on account of the construction of the air strips, the appellants have been prevented from carrying on cultivation of rice and sugarcane on the area adjoining to air strip. It is contended that their land, situated in Deh Chanri, Bagharki and Lundki comprised of one compact agricultural units, which was managed and controlled through the bungalow, which was constructed in Deh Chanri, and as a result of the acquisition of the land, the appellants have lost access to their remaining land in Deh Chanri and other Dehs, which has substantially increased the cost of management and control of those land which is now on the other side of the air strip and, as such, they were entitled to special compensation for injurious affection in this case. The contention of the appellants/ claimants appears to be correct in so far it relates to their land in Deh Chanri is concerned. However, this contention cannot be accepted for lands of appellants /claimants situated in Deh Bagarrki and Lundki as there is nothing on record to establish any direct affect of acquisition of land in Chanri on the land in these Deh. From the Deh map (Exh.17), which was produced before the Arbitrator, in the 2nd acquisition proceedings the land belonging to appellants are shown in blue. It is quite clear from the position of the acquired land as shown in the map (Ex‑17) that a large portion of the land belonging to the appellant in Deh Chanri was totally separated from the other land in the same Deh on account of acquisition of their land and construction of the air strip. In fact, the present position is that the bungalow of the appellant in Deh Chanri is on one side of the air strip, while majority of the land of the appellant in this Deh is on the other side of the air strip to which there is no direct access now available to the appellants/ claimants. The appellants /claimants in order to prove injurious affection to their other lands examined their Attorney, Manager, Lt.‑Col. (Rtd.) Aftab Ali and Wing‑Commander (Rtd.) D.M. Khan from the oral evidence of these witnesses it is substantially established that on account of construction of air strip on the acquired land, the claimants /appellants cannot now cultivate crops like ,sugarcane, paddy and bananas on a substantial area of their land in and around the air strip. In addition to the above oral testimony of these witnesses which remained unchallenged in the case, there is also on record the letter of Assistant Commissioner Badin to Military Estate Officer, dated 24‑5‑1976 (Ex‑38) which also supported the stand of claimants/ appellants in this regard. In these circumstances, the learned Arbitrator should have considered award of damages on account of injurious affection of the other land of the appellants in the adjoining area instead of only awarding damages for the un-acquired portion of their survey numbers which were partially acquired. The appellants/ claimants jointly hold in Deh Chanri, 1,180.09 acres of land out of which the total land acquired or taken possession of by the authorities comes to 386.27 thus leaving a balance of 926.23 in their ownership in Deh Chanri. The appellants are entitled to damages for injurious affection to their entire land in Deh Chanri which has been affected injuriously according to evidence on record on account of acquisition of their lands and construction of an air strip thereon. The learned J Arbitrator had allowed Rs.500 per acres in his award for injurious affection of the lands of the appellant but this amount cannot be accepted for award of damages for the remaining un-acquired area of Deh Chanri belonging to appellants/ claimants as the learned Arbitrator while fixing the amount of damages had in view only a very small area namely the un-acquired portion of the survey numbers partially acquired. The appellants have claimed before me Rs.700 per acre which too appear to be unrealistic. The material on record shows that the Deputy Commissioner, Hyderabad, in his letter dated 8‑12‑1974 addressed to MEO, Karachi Circle, had suggested a sum of Rs.300 per acre as damages for severance of the land. A reading of the above letter will show that this amount was fixed with reference to; adverse affect likely to be caused to the residuary lands of the; claimants appellants, which were not acquired by the Government. This appears to be a reasonable amount for awarding damages for injurious affection of the other lands of claimants /appellants. I accordingly allow Rs.300 per acre to appellants/ claimants for un-acquired 926.23 acres of land situated in Deh Chanri jointly owned by them on account of injurious affection of their lands as a result of acquisition. The appellants have also made a claim for sudden dispossession. No doubt in respect of second acquisition proceedings the appellants have been able to establish their sudden dispossession from the land but the learned Arbitrator found that they could not establish that K there were any standing crops on these lands at the time of taking over possession. In these circumstances I am of the view that no compensation for sudden dispossession could be granted to them. The result of the above discussion is that Appeals Nos.61 and 62 of 1979 are partially allowed while Appeals Nos.19 and 20 are dismissed but there will be no order as to costs. The final award will be as follows: (i) That the total acquired area for which Shirimati Rajkumar is held entitled to compensation comes to 126.03 while she has been awarded compensation for 94.19 acres only. She will therefore, be paid compensation at the rate awarded by the learned Arbitrator for the balance acres of 31‑24. (ii) Similarly the total acres for which late Kevalram Dayaram Shahani is held entitled to compensation comes to 20.30 acres and as such he is also entitled to the payment of a compensation for the balance acres of 9‑17 acres at the rate awarded by the Arbitrator. (iii) The appellants will be paid @ Rs.300 per acre as damages for injurious affection to their other lands situated in Deh Chanri only, measuring 926.23 acres jointly, less the amount already received by them. (iv) The claimants/ appellants will also be entitled to statutory charge of 15$ on the amount of compensation to be paid to appellant under (i) (ii) above. (v) That appellant in Appeal No.62 of 1979 will be paid for 38.24 acres a further sum of Rs.48,250 by way of compensation plus statutory charge of 15$ on this amount and interest as awarded by the Arbitrator. Before parting with the case it may be mentioned here that the learned counsel for the Government during the course of hearing of above appeals suggested that these cases may be remanded back L to the Arbitrator for reconsideration of the claim of appellants claimants but I have not accepted this suggestion. Firstly, for the reason that the learned Arbitrator who was nominated for these cases has since retired after his elevation to the Bench of this Court in the meantime, and is, therefore, no more available, as an Arbitrator in the case. Secondly the scope of present appeals is very wide being in the nature of First Appeals and as the evidence on all the points raised before me is available I have preferred to decide these issues here instead of referring it back to Arbitrator. It may also be mentioned here that the respondents in Appeals Nos.19 and 20 of 1981 had raised a preliminary objection that their appeals are time‑barred but I have not decided this contention which is now of only academic value as after hearing all the appeals together I found no merit in appeals M.A. Nos.19 and 20 of 1981 which have been dismissed. S. Q. /G‑59/ K Order accordingly.