2007 PLP 2666 (YLR)

SARDAR MUHAMMAD ASLAM, J.

Facts out of which the instant Regular First Appeal has arisen are that Property No.D-1714 situated at Shah- Alam Gate, Lahore was acquired by the LDA/appellant .under the Development of Damaged Area Ordinance, 1948. The property consisted of 9 shops and some residential portion. Possession was taken on 22-4-1949. It was included in Shah Alam Gate Development Scheme by the Lahore Improvement Trust (LIT). Exemption of two Plots bearing Nos.17-E and 37-E was granted to the predecessor-in-interest of the respondents; in lieu of his proportionate share in Property No.D-1714. However, possession of the plots was not given to the respondent due to encroachments by some persons. The respondents required, the appellant for allotment of alternate commercial plots of the same market value, in its ongoing scheme viz. Model Town-Extension Scheme, Muslim Town Scheme or Allama Iqbal Town Scheme. The appellant decided that on account of non-availability of vacant plots in the referred schemes, the respondents would be .accommodated in terms of compensation payable under Land Acquisition Act. Dissatisfied with the offer of compensation respondents filed Writ Petition No.3866 of 1997. It was withdrawn with permission to file a civil suit -'for the recovery of compensation amount at the rate prevalent in 1952, the date of acquisition. Accordingly, the respondents filed a civil suit for the recovery of Rs.100 million with costs towards price/compensation in exchange of the property acquired. The appellant contested the claim by controvertirig the averments through written statement. Out of the divergent pleading ' of the parties, the following issues were framed:- (1) Whether the plaintiff has no cause of action to file the suit against the LDA? OPD. (2) Whether the plaintiff has not come to the Court. with clean hands'? OPD. (3) Whether the-plaintiff is entitled to get a decree for recovery of Rs.100 million with costs as prayed for in the plaint? OPP (3A) Whether the possession of Property No.D-1714 comprises Plot No.16-17 Block "E" Shahalam Gate, Lahore was every taken over by the defendant? OPP. (4) Relief.

2. The parties produced their evidence, oral as well as documentary in support of their pleas. The learned trial Court after evaluation of the evidence and arguments of the learned counsel for the parties decreed the suit to the extent of 4 crores and assessed the market price at Rs.40,00,000 per Marla. Hence this appeal.

3. The first question requiring answer is, as to whether the property bearing No.D-1714 belonging to the plaintiff was acquired for the defendant and it took over its possession. Though, there are some admissions on record on behalf of the defendant-Authority of providing alternate plot in lieu of the property of plaintiff and thereafter, payment of compensation to the plaintiff of the land, but we have not been able to find out any document on the record evidencing acquisition and delivery of possession of Property No.D-1714 to appellant-Authority. The admissions made by functionaries of the appellant are not backed by evidence. Any such wrong admission cannot be acted upon. Reference can be had to the case of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 33).

4. The West Punjab Damaged Areas (Development) Ordinance, 1948 and Punjab Development of Damaged Areas Act, 1952 provided a complete procedure for acquisition of land falling within the definition of section 2(c) of the Punjab Development of Damaged Areas Act, 1952. Section 2(c) is reproduced as under for ready reference:- "S.2(c)

"Damage Area" means any area notified as such by the Government under section 3 of this . Act. "

5. Under section 3 of the Act, a Government may by notification declare any local area or any part of any local area to be a damaged area. Section 4 provides scheme for development of a damaged area. A scheme framed, has to be published in the official Gazette as required under section 5 of the Act. After publication, the scheme is sanctioned by the Improvement Trust, predecessor of the appellant-Authority and is submitted to the Govt. who may modify or cause the original to be published in official Gazette. On publication of scheme by the Government in the official Gazette, it shall be a conclusive evidence that a scheme has been duly framed and sanctioned under section 6(4) of the Act. The appellant-Authority under section 7 of the Act, may apply to the Collector for acquisition of any damaged area comprising in any scheme sanctioned under this Act and also making an order for .delivery of possession of the whole or any part of the such area to the Improvement Trust. Subsection (2) of section 7 provides that the Collector may pass an order accepting application made to him and forthwith deliver to cause the delivery of possession of any damaged area or part thereof. Under section 12, the Collector shall make an ~ award apportioning compensation in accordance with the provisions of section 14 of the Act amongst all persons known or believed to be interested in the land section 14 provides the procedure for calculation of compensation. Under section 17, .the Collector. shall make the payment of the amount to the .interested persons. This procedure has not been followed.

6. Learned trial Court has not returned its findings on additional issue No.3-A, which warranted a finding, whether possession of property was ever taken by the defendant. Documentary evidence Exh.D.1 to Exh.D.17 and statements of D.W.4 and D.W.S have not been considered at all, which renders the judgment of the learned trial Court, a nullity in the eye of law.

7. Learned trial Court awarded compensation on the basis of valuation table notified by the Deputy Commissioner for the purposes of recovery of stamp duty : under Stamp Act. No effort was made to determine the market value of the land in dispute as obtaining in the year, 1952. Reference of sale-deeds Exh.P.17 to Ehx.P.19 does not furnish any criteria in the absence of evidence about location and potential value of land subject-matter of those sale-deeds.

8. In view of the above, we are inclined to direct remand of the case and restrain ourselves from detailed examination of the evidence, lest it may prejudice the case of any side before the trial Court. In our considered view, the learned trial Court has failed to attend itself to the controversy arising in the suit.

9. For what has been discussed above, we allow this appeal, set aside the impugned judgment and decree .and remit the matter to the learned trial Court for granting appropriate opportunity to the parties to lead their respective evidence and decide the matter afresh on the basis of evidence already on the record .and to be produced hereinafter by the parties, specially with reference to provision of Punjab Development of Damaged Areas Act, 1952 providing mechanism for acquisition of the land fallen in the damaged area. He shall address himself to the following questions:- (i) whether appellant-Authority- through its predecessor submitted any scheme and the same was sanctioned by the Government'? (ii) whether defendant applied for acquisition of the land and delivery of possession in their favour'? (iii) whether possession was delivered to the defendant under a scheme prepared and sanctioned as stated above'? (iv) whether, the land in dispute was acquired by the Land Acquisition Collector, if so, what was the amount awarded by him as compensation? (v) whether the same was deposited'? (vi) what was the market value of the land obtaining in the year, 1952 and whether plaintiffs are entitled to depreciation account of erosion of money value'? and (vii) whether determination of market value by appointment of a local commission may furnish a yardstick for the trial Court to resolve the controversy as to compensation of amount justly and fairly.

10. As the civil suit was filed on 19-9-1998, it appears appropriate to direct the learned trial Court to decide the controversy in the light of afore-noted lines by or before 31-7-2007. H.B.T./L-11/L Order accordingly.