1994 PLP 160 (CLC)

(g) That there are also 500 Babul trees, 30 Sheesham trees, 20 Nim trees and 15 mango trees in the area, the value of which in aggregate is Rs.1,42,

000. On the basis of the above statements, the learned District Judge settled the following issues: (1) To what compensation owners of the land in question are entitled? (2) What should the orders be? The present appellants had examined Muhammad Juman Mallah, the Assistant Commissioner and Land Acquisition Officer who produced certain documents while the respondents bad examined Syed Abid Ali Shah the Attorney of respondents Nos.2 and 3, who also produced documentary evidence. The learned District Judge after hearing the arguments of District Government Pleader on behalf of the Land Acquisition Officer and Mr. Jhamat Jethanand, Advocate for respondents passed the impugned judgment and decree. The present appellants have therefore, preferred this appeal. I have heard Mr. Riaz Ahmed, learned counsel for appellants and Messrs Jhamat Jethanand and Kamaluddin, learned counsel appearing for respondents. At the very outset the learned counsel for appellants has submitted that the trial Court has erred in taking into consideration the draft award passed by the previous Land Acquisition Officer, which was signed by him on 24‑3‑1976 although the said Award had been set aside and remitted by the Commissioner vide his letter dated 14th May, 1976. The award of 24‑3‑1976 which is headed as "Draft award" and placed on record as Exh. 59 while the letter of the Commissioner is also placed on record. The said draft award Exh.59 was signed by the previous Land Acquisition Officer on 24‑3‑1976, the day on which he left the. charge of his post as Assistant Commissioner as he had been transferred. The letter of Commissioner dated 14‑5‑1976 does not show that the said award was set aside on account of any illegality or for want of evidence etc. but the Commissioner had remitted the award on the ground that the previous Land Acquisition Officer had signed the draft award on the date on which he left the charge. However, it has not been clarified in evidence if he had signed the said award after handing over the charge. Mr. Riaz Ahmed, Advocate has further submitted that under the provisions of Revenue Department (Standing Order No.12) every award under the Act is to be forwarded to the Government for approval and discretion lies with the Government to approve or not. In the present case the learned counsel has submitted that the award was not approved and, therefore, the said draft award could not have been taken into consideration by the trial Court. It may be pertinent to observe here that it is paragraph 19 of the Standing Order, No.12 of the Revenue Department which deals with such situation. The said provision reads as under: "

19. The third stage refers to approval of the award and payment of the award money by the Acquisition Officer. . ` All the draft awards amounting to Rs.10,000 or over and passed by a Land Acquisition Officer other than the Revenue Officer, Llyod Berrage Scheme, should be submitted to Government for perusal before they are issued. After perusal of a draft award thus submitted. Government will place before the Collector such further information as they may have in their possession relevant to the case and the Collector should take it into account before coming to a final decision on the award." The above provision lays down that after perusal of draft award thus submitted, the Government will place before the Collector such further information as they may have in their possession relevant to the case and the Collector should take it into account before coming to a final decision of the award. Thus it is obvious that the award could have been remitted only on the ground that certain other information was available with Government which has not been taken into consideration by the Land Acquisition Officer. By a subsequent amendment the word `Government' in this provision has been substituted by the word `Commissioner'. Accordingly, there was hardly any reason for Commissioner to have remitted the award for the reasons mentioned in his above referred to letter. However, since this draft award was not announced in presence of parties and no notice was issued to parties, I am of the view that this award could not be treated as conclusive award but all the same it could be used for the collateral purposes of arriving at the amount of compensation. The second award given by the other Land Acquisition Officer, namely, Muhammad Jumman Mullah on 23‑6‑1976 is Exh.58 on the record. Now the point for consideration with regard to the only issue in the suit is as to the status of the acquired land, its potentialities and what should be the rate of compensation. There is evidence on the record that the land was reserved for the industrial purpose since the year 1970‑71 and is situate at Badin‑Golarchi road. The Town of Badin comprises of three Dehs, namely, Deh Badin, Deh Puttar and Deh Sonhare. Badin has been declared a District in the year 1975 and the Town of Badin is District Headquarters. Even this reason itself is sufficient to show that there is every likelihood of development and improvement in the Town of Badin which would have the effect of increasing the value of the land. This documentary evidence which has been produced on record shows that a notification was published in the Sindh Government Gazette on 13th June, 1973 (Exh.45) to the effect that the Deh Sonhare, Deh Puttar and Deh Badin alongwith two other Delis were comprised in Town Committee Badin. Thus the acquired land falls within the Town Committee Badin which is now Municipal Committee as stated by the appellant Assistant Commissioner himself in his evidence. The deposition of Muhammad Juman Mullah is Exh.57. In his deposition this witness has stated that he had not seen the acquired land. However, in cross‑examination he states that "I do not know whether there are rice mills, shops and buildings in Deh Sonhare. I have not seen the Jaffri Rice Mill in Deh Sonhare. I did see the land which was acquired which is in southern of Golarchi road. The Court building is in the same land which has been acquired. Court is in Badin Municipal Limits." From this admission of the appellant, it is crystal clear that not only the acquired land is situate within the Municipal limits but even the Court building which comprises the District and Sessions Court and subordinate Courts and also the offices of Deputy Commissioner and Assistant Commissioners is situate within the acquired land. This land was acquired for the purposes of construction of the District Administrative Offices and residences of the Government officials. From this it can safely be assumed that the land is situate within the urban area and it has the potentialities of being treated as residential‑cum‑commercial area. This witness further in his cross‑examination has stated that he does not know as to what is the rate of Sikni land in Badin Town, and its surrounding land although the previous draft award showed that according to record of Sub‑Registrar the price during that period in the Town of Badin for Sikni land ranged between Rs.2 to Rs.6 per sq.foot. Even the order of Deputy Commissioner Exh.46 which is dated 30‑1‑1976 i.e. before the award, shows that plots of land were granted by the Government from this very land to 10 persons at the rate of Rs.1.50 per sq.foot. and yet the Land Acquisition Officer in his cross‑examination states that he does not know if the rate of Sikni land in Badin Town was Rs.1.50 per sq.foot. He is also not aware of the fact that the Deputy Commissioner had granted the land as above. From this deposition of the Land Acquisition Officer it appears that he did not apply his mind to the facts of the case.nor had he gone through the draft award or the material on record but this award was obviously passed by him under the directions of the Commissioner as discussed above. In these circumstances I have come to the conclusion that the acquired land being within the urban area of Badin, a newly created District and developing Town had all the potentialities and had to be taken into consideration. There are also some sale‑deeds placed on record by the respondents as Exhs.49 to

52. These sale‑deeds pertain to the same period and same year as when the present land was acquired by the Government. According to these Sale Deeds in one case the land was sold at Rs.2.50 per sq. foot. In another case at Rs.3 per sq.foot. Accordingly, the acquired land is also to be valued on the basis of sq.foot. and not acres as is generally done in case of agricultural land. Reliance may be placed on the case of Hyderabad Development Authority v. Karan Khan Shoro (1985 SCMR 45). Their Lordships have observed that taking into consideration the fact that the property was situated closed to the Housing Societies which were fastly developing, the award of compensation allowed at the rate of Rs.70,000 per acre was neither excessive nor exorbitant. Similarly, in the case of Col. Abid Hussain v. Collector of Karachi (1980 SCMR 795) their Lordships have observed that the criteria to judge the market value of the acquired land includes the potentialities of the land as a building site which fact could not be lost sight off. Also in the case of Land Acquisition Collector v. Abdul Qayyum Malik (1980 SCMR 63) a similar view has been held. It may be observed that while determining the market value of the acquired land the same is to be calculated not only on the basis of value which land carried at relevant time but the Court has also to take into consideration its potential value and the value of other lands in the vicinity. In a case of acquisition of land the owners of the land are deprived of their valuable interest in land. In such circumstances as in the present case where a new District is created and the land acquired is situated within the Town being District Headquarters and that also for the purposes of construction of District Administrative Offices and residences of officials, the potential value viz. the value on account of use to which the land could be put in future was also a relevant consideration in making such assessment. In these circumstances, it is obvious that the acquired land in the present case has every potentiality of increase in value in terms of urban property and thus the same had to be valued as such. Now comes the question as to what should be the rate of compensation. In the present case, the report of the Sub‑Registrar shows that the price in the Town at that time was between Rs.2 to Rs.6 per sq.foot. However, the respondents have filed their cross‑objections and claimed the compensation at the rate of Rs.15 per sq.foot. Keeping these factors in view and the fact that the Government themselves have granted the land in the same Deh to ten different people at the rate of Rs.1.50 per sq.foot vide order of Deputy Commissioner dated 30‑1‑1976 (Exh.46), I accept the cross‑objections of the respondents and enhance the compensation to the rate of. Rs.1.50 per sq.foot. The judgment of the trial Court shows that the respondents have been allowed 15% compulsory charges and 6% interest but no compensation has been allowed as provided under section 28‑A of the Act. This section 28‑A of the Act was promulgated vide Land Acquisition (Sindh Amendment) Ordinance XXIII of 1984 which reads as under: "28A. In addition to the compensation fixed on the basis of market value as prevailing on the date of notification under section 4, an additional amount of fifteen per cent. per annum of the compensation so fixed shall be paid from the date. of the notification under section 4 to the date of payment of the compensation." Mr. Riaz Ahmed, the learned counsel appearing for appellants has opposed the claim of the respondents under section 28‑A of the Act on the ground that this land was acquired prior to the abovesaid amendment. This point was considered by this Court in the case of Assistant Commissioner and Land Acquisition Officer v. Syed Muhammad and another (Ist Appeal No.12 of 1984), decided on 28‑7‑1993 wherein reliance was placed on the case of Syed Saadi Jaffri Zainabi v. Land Acquisition Collector and Assistant Commissioner (PLD 1992 SC 472). In the above case it was held by *heir Lordships as under: "A perusal of section 28‑A will show that it is mandatory in nature and provides for additional compensation from the date of publication of notification under section 4 to the date of payment of compensation. The main purpose of making this provision is to discourage the tendency to delay the payment of compensation in time and to ensure that the party whose property has been acquired, is duly compensated without unnecessary loss of time. It is the duty of the Collector that on making an award under section il he should tender payment of the compensation awarded by him to person entitled to it according to the award unless he is prevented by any reason provided in section

31. In case the party is not available or does not consent to receive, the Collector shall deposit the amount of compensation in the Court to which a reference under section 18 would be submitted. Therefore, after the award has been made there should be no delay in making payment or depositing compensation in the Court." Also reliance was placed on the case of Deputy Commissioner, Karachi (East) v. Mahrab and others (1988 CLC 1119). In this case also the learned Single Judge of this Court has held as under:‑‑ "In view of this amendment the claimants are further provided additional compensation at the rate of 15% per annum of the amount of difference in the two awards from the date of notification under section 4 of the date of payment of compensation." The upshot of the above discussion is that the present appeal is dismissed while the cross‑objections of the respondents are accepted to the extent that the rate of compensation for the land acquired is increased to Rs.150 per sq.foot. The respondents will also be entitled to emergency charges at 15% and interest at 6% per annum as awarded by the trial Court and the same compensation for the trees as allowed by the trial Court. However, in addition to above the respondents will be entitled to additional compensation at 15% per annum from the date of notification under section 4 of the Act i.e. 10‑4‑1975 till payment as provided in section 28‑A of the Act. Above are the reasons for the short order announced in Court on 3rd August, 1993. AA./L‑73/K Appeal dismissed.