1989 PLP 4298 (MLD)

URDU PARAGRAPH 4302 The contents of this document have been admitted as correct by the learned counsel for the respondents through a note given by him on this document. Ex.P.6 is the list showing the kind of each tree standing on the land with their ages and prices thereof. The correctness of the contents of this list has also been acknowledged through noting recorded by the learned counsel for the respondents on this document. Ex.P.7 is a letter from Extra Assistant Director of the Land Acquisition and Control Officer, Highways Department, referring to list of plants Ex.P.6 stating therein that the approximate value of the plants were given therein. Learned counsel for the appellant also admitted in writing the correctness of the contents of this document. EX.P.11 is a copy of Field Book of land brought under consolidation. According to this document there was a mosque constructed on Khasra No. 48/1/1 of the appellant and on the other Khasra No. 48/1/2 measuring 13 kanals 6 marlas, there was a Poultry Farm and Factory. This document was prepared on 7‑6‑1969 which has been duly signed by Naib‑Tehsildar. Ex.P.12 is a letter dated 26‑11‑1969 from which it is manifest that the appellant was running Poultry Farm business on the land. Through Ex.P.I7 dated 30‑3‑1970 the appellant complained that the value of his remaining land measuring about 10 kanals on account of severance of land acquired had been reduced. Documents from Ex.P.26 to Ex.P.60 which relate to the period prior to acquisition of land established that the sanction was granted by the Government to the appellant to establish Garment Factory. Ex. P.27 is a document which establishes that the Chief Controller of Imports and Exports registered the appellant as importer. These documents also show that the appellant imported huge machinery for setting up garments factory. He was issued export licences to export product of garments abroad. Documents such as Ex.P. 14, P.15 and P.18 are not relevant to the matter in issue. Documents from Ex.P.l9 to 20 relate to the period from 23‑12‑1971 to 8‑2‑1972 which is subsequent to the date of acquisition of land, therefore, they are also irrelevant to the matter in issue. Ex. P.21 is dated 7‑5‑1975 and this document as also documents from Ex.P.22 to 25 for the same reasoning cannot be considered.

8. We have elaborately analysed the documentary evidence so as to demonstrate that the existence of Garment Factory, Poultry Farm business, Diary Farm business and Fish Farm business was very much in existence at the land of the appellant much prior to the date of publication of notification under section 4 of the Act. The existence of trees on the land has also been duly established from this documentary evidence as discussed above. These documents have been prepared by the officers of the respondents, the correctness of contents of which have been admitted by the learned counsel for the appellant through noting given on these documents as observed above.

9. We now proceed to examine the correctness or otherwise of the findings recorded by the learned trial Court regarding the claims made by the appellant. The Land Acquisition Collector assessed the price of the land at Rs. 75 per marla which has been upheld by the learned trial Court. The appellant has produced copy of mutation No. 49 attested on 17‑4‑1970 (Ex.P.67). According to this mutation land measuring 3 marlas was sold through registered sale deed dated 18‑10‑1969 for an amount of Rs. 15,

000. According to this document the price of per marls comes to Rs.

500. Ex. P.68 is another mutation No. 371 attested on 8‑5‑1965 on the basis of oral sale of land measuring 14 marlas for Rs. 6,

000. According to this document the price of per marla comes to Rs.

428. Mutation No. 374 attested on 8‑5‑1965 (Ex.P.69) shows that the land measuring 10 marlas was sold for Rs. 3,550 and according to this price per marla comes to Rs.

350. Ex.P30 is mutation No. 375 attested on 8‑5‑1965 according to which land measuring 1 kanal was sold for Rs. 7,

000. According to this document the price of per marla comes to Rs.

350. The notification regarding acquisition of land since was published in the gazette on 17‑1‑1969, therefore, mutation No. 67 though attested after this notification is nearer in time to the date of acquisition of land, than mutations No. 371, 374 and 375 which were attested about four years prior to the acquisition i.e. on 8‑5‑1965. It is in the award of Land Acquisition Collector that the Collector supplied data to the Land Acquisition Collector in which it was stated that the price of the land was Rs.500 per marla i.e. Rs.10,000 per kanal. This information given by the District Collector who is official of the respondents can very well be taken into consideration to hold that the price of the land was in fact Rs. 500 per marla at the relevant time which is further supported by mutation No.

49. It is also an admitted fact that the land is situated at eleventh mile from Lahore on Lahore‑Sheikhupura Road and it has 1200 feet frontage on Lahore Sheikhupura Road. After considering this evidence as also the oral testimony of the appellant himself we are fully convinced that the finding of the Collector as upheld by the learned trial Court in respect of market price of the land at Rs.75 per marla cannot be maintained, it is, therefore, set aside. Likewise the appellant has not been able to prove the price of the land at Rs. 2,000 per marla as claimed by him. The reliance to claim the said price is on Ex. P.2 through which the acquired land on the road side was leased out per year at lump sum price of Rs. 1,000 per marla in the year 1967. We do not consider it a relevant document to determine the market price as the considerations for leasing out property are different. This document can also not be given any credence in view of documentary evidence produced by the appellant himself as discussed above. We hold that the price of the land at the relevant time was Rs. 500 per marla and the appellant is entitled to compensation of the land at the said rate. Accordingly he is found entitled to an amount of Rs. 3,26,500 as price of his land measuring 32 kanals 13 marlas.

10. The appellant claimed an amount of Rs. 16,5000 as compensation on account of loss suffered by him in the process of shifting his Readymade Garments Factory installed on the land due to acquisition and the damage done to the machinery as also loss of earning from the said business. The appellant examined Khawaja Maqbool Hasan PW.2 in support of this claim. This witness deposed that he was himself owner of Garments Factory at Lahore and also owned a shop of ready‑made Garments in Anarkali, Lahore. He stated that in the year 1968/69 he was the dealer of ready‑made garments and did not own factory. He also stated that he had seen the ready‑made Garments Factory of the appellant on the land in dispute on Sheikhupura road because he used to purchase the ready‑made garments from the appellant for retail whole sale business. This witness went on to state that he had been contacting the appellant for three years till the land was acquired by the Highway Department. This witness has given details of the machinery installed by the appellant in the factory. According to this witness the production of the factory was about 700 to 725 pieces per day and profit of per piece was 5 to 6 rupees and as such earnings of the appellant was about Rs. 3600 per day and profit per month would come to Rs. 95,

000. According to this witness ordinarily it required 16 months to re‑establish such a business as it involved purchase of new site for installation of machinery, managing new power connection to go into the production once again, and then to enter the market for regular sale and to earn goodwill. According to this witness the appellant had suffered loss of earning to the extent of Rs. 15,00,

000. The damage caused to the machinery in process of dismantling and shifting and re‑erection according to this witness was Rs. 75,

000. The loss of stock in the estimation of this witness was Rs. 25,000 and goodwill and other labour charges etc. was Rs. 55,

000. The appellant himself appeared as PW.4 and supported his claim relating to this item. From document Ex.P.5 the correctness of which has been admitted, which has been prepared by the officials of the respondents themselves, it is demonstrably clear that the appellant had installed a factory over the land and evidence of these two witnesses also establishes that the factory of the appellant was manufacturing the ready‑made garments to the extent of 700 to 725 pieces per day and this business was in full swing when the land was acquired. The finding of the Acquisition Collector in the award is based on mis‑reading and non‑consideration of evidence produced by the appellant. Khawaja Maqbool Hasan PW.2 was an experienced businessman who had been dealing with the business of ready‑made garments. His evidence inspires confidence. He has been subjected to lengthy cross‑examination but his testimony could not be shaken. There are no good reasons to reject his evidence. The appellant has been successful to prove the loss of business property and earnings due to dis mentaling and shifting of ready‑made garments Factory to the tune of Rs.16,50,

000. The respondents have not produced any evidence to rebut the evidence of the appellant which is of unimpeachable character. We allow the claim of the appellant on this account to the tune of Rs. 16,50,000.

11. The appellant's claim regarding loss of business of Poultry Farm is Rs. 4,19,

040. To prove this claim he has examined Mehtab Ali s/o Mumtaz Ali as PW.3. It is in the evidence of this witness that he was also doing the same business and was maintaining a Poultry Farm. He had also a shop of poultry in Tollinton Market, Lahore. He deposed that he used to purchase eggs from the Poultry Farm of the appellant which was situated on the land in dispute. He also deposed that the Poultry Farm of the appellant had three four sheds and the appellant was having five thousand to six thousands layers. According to him nearly 80 per cent of the layers used to lay eggs when the acquisition of the land took place. He had been purchasing the eggs at the rate of Rs. 3.25 to Rs. 3.50 per dozen and the daily sale of eggs of the appellant was Rs. 1100. The net profit according to this witness per month from this business was nearly about 23 to 24 thousand rupees and the net loss to the appellant for one year according to estimation of this witness was Rs. 2.90.000. According to this witness it would take at least 6/7 months to build up new farm and grow up the laying stock to earn profit from it. He further deposed that the other loss of the appellant regarding this business is Rs. 25,

000. The appellant himself as PW.4 stated that he was earning a profit of Rs. 25,000 per month as such his loss of profit per year was about Rs. 2,81,000 and for disposing of the layers etc. is Rs. 4,20,

000. The assertion of the appellant that he had poultry farm business on the land in dispute is a fact which has been fully established beyond any doubt through Ex.P.5. which as stated above has been prepared by officials of the respondents, the contents of which have been admitted as correct. From Ex.P.5 it is also clear that the appellant had made extensive provision for maintaining this poultry farm business. From this documentary evidence read with oral evidence of PW.2, we are convinced that it has been proved that the appellant had suffered a loss of profit of Rs. 24,000 per month on account of poultry farm business. According to PW.2 it would take 6/7 months to build up new farm and grow up the laying stock to earn profit from this business. The loss of profit of seven months calculated on the basis of Rs. 24,000 per month comes to Rs. 1,68,

000. The appellant is not entitled to any amount beyond this due to sufferance of income from this business. The appellant in his statement has also claimed Rs. 4,20,000 as further loss occasioned because he was compelled to dispose of layers. There is no evidence to corroborate this loss to the extent of Rs. 4,20,

000. According to P.W.2 the other loss suffered by the appellant in this respect was Rs. 25,

000. The appellant, therefore, cannot be granted an amount of Rs. 4,20,

000. We, however, allow an amount of Rs. 25,000 to the appellant on the basis of evidence of P.W.2. As a result of foregoing finding the appellant is hereby held to have suffered a total loss of Rs. 1,93,000, regarding loss of poultry farm business, which is hereby allowed.

12. Next comes the claim of the appellant of an amount of Rs. 1,16,100 due to loss caused to his business of Dairy Farm. From Ex.P.5 it is also clear that the appellant had also installed business of Dairy Farms on the land in dispute. In order to prove this loss the appellant examined Dr. Abdul Rahim Director (Rtd.) Punjab Livestock and Fisheries as P.W. 6 in the additional evidence. This witness assessed the loss of business of Dairy Farm of the appellant on the basis of entries in Ex.P.5. His estimation is contained in the document Ex.PW.6/1 which was prepared by this witness who admitted the same as having been executed b5 him. According to this document the appellant had suffered a loss of Rs. 75,000 due to acquisition of the land. This witness is an experienced hand being retired Director Punjab Livestock and Fisheries. His evidence is reliable. The respondents did not produce any evidence in rebuttal. The correctness of assessment of loss made by him could not also be brought under clouds by the respondents in the cross‑examination. There are no reasons to disbelieve him or to reject his evidence. We, therefore, hold that the appellant has been able to prove loss from Dairy Farm business to the tune of Rs. 75,000 as against claim of Ps. 1,16,100 made by him. We, therefore, allow Rs. 75,000 to the appellant on this account.

13. The appellant claimed an amount of Rs. 96,000 for the losses caused to the Sheep Farm on account of acquisition of the land. It is evident from Ex.P.5 that the appellant had a Sheep Farm over the land in question. Apart from his own statement as PWA, the appellant examined Dr. Abdul Rahim Director (Rtd.) Punjab Livestock and Fisheries as PWA, in additional evidence who being his assessment on the data provided in Ex.P.5 is of the opinion that the appellant suffered loss of Rs. 82,000 in this respect. His assessment is contained in Ex. PW.6/2. He has given reasons with details of the losses caused to Fish Farm as also Dairy Farm business of the appellant. The respondents have not produced any evidence to rebut the evidence of this witness who is also an experienced man being retired Director of Punjab Livestock and Fisheries. His statement sufficiently establishes that the appellant suffered loss of Sheep Farm. We allow an amount of Rs. 82,000 as compensation for this loss.

14. The appellant also claimed an amount of Rs. 18,000 for losses to the business of Fish Farm. It is manifest from Exp.5 that the appellant had also Fish Farm on the land in dispute. The appellant himself stated m his evidence when appeared as PW.4 that he suffered loss of an amount of Rs. 18,000 on this account due to acquisition of land. We have no reason to disbelieve the statement of the appellant because existence of Fish Farm has been clearly established through Ex.P.5 a document prepared by the officials of the respondents, the contents of which as discussed above stand admitted. There is no reason to deprive the appellant, of compensation for that. We, therefore, hold that the loss to the extent of Rs.18,000 has been proved on account of damage to Fish Farm and the said amount is allowed as compensation thereof.

15. The claim of the appellant for the losses of trees, grown on the land was to the tune of Rs. 76,

253. He has been granted only an amount of Rs.

368. Through EX.P.S and P.6 it stands fully established that the appellant had grown trees over the land in question the details of which with the ages of the trees and kind of each tree have been given in these documents. These documents have been given in these documents. These documents have come from officers of the respondents and the correctness of their contents stands also admitted. The appellant also examined Muhammad Latif PW.7 who is owner of Lahore Nursery. This witness stated that he was running Nursery for the last five years. On the basis of data as contained in Ex.P.6 this witness has assessed the price of trees at Rs.‑62,

590. The assessment made by this witness is in Ex.P.W 7/1. No evidence to rebut this evidence has also been produced by the respondents. We are convinced that the appellant has established through cogent evidence that the price of trees standing on the land was Rs. 62,590 and we allow this amount to him. The findings of the Acquisition Collector in the award as also the learned trial Court are not sustainable which are based on not only mis‑construction of record but also non‑consideration of Ex. P.6.

16. Learned counsel for the appellant when asked as to what evidence has been produced by the appellant to prove depreciation in value of his remaining land due to severance of land acquired, he frankly conceded that there was no evidence and this claim was given up by him.

17. The appellant made a claim of an amount of Rs. 7,21,980 due to losses caused to the buildings and structures standing on the land in dispute at the time of acquisition. To prove this claim the appellant apart from himself examined Mr. Mushtaq Farooqi PW.5 in the additional evidence. This witness is retired Assistant Director LDA (Civil Engineer) and is now working as Consultant. This witness has assessed the loss of buildings and super structures standing on the land on the basis of data regarding nature and the extent of building and super structure standing on the land as contained in EX.R.1, a document which has been produced by the respondents themselves. The estimation of losses made by this witness has been detailed in the schedule Ex. PW.5/2. Ex.PW.5/1 is the certificate attached to this schedule issued by this witness. He has given assessment of loss of the structure as mentioned in EX.R.1 with detailed reasons. He has recorded the opinion that the loss suffered by the appellant in this respect is Rs. 5,88,794.60. He has also given measurement of the super‑structure and the buildings which have been mentioned in EX.R.1. No evidence was produced by the respondents to rebut the evidence of this witness. This witness stated that he estimated the losses on the basis of schedule of rates in vogue from January 1967 to January 1969. Learned counsel for the respondents argued that the schedule of rates on the basis of which estimate was made by this witness should have been appended with his opinion.

18. We are afraid the contention is devoid of any force. This witness has given the details of each and every item with reasons both in his statement as PW.5 as also in his report Ex.P.W.5/2. This witness stated that the estimation of construction has been made at the rates lower than the rates provided in the approved schedule. The respondents if thought that the rates provided in the schedule of the Government are different or less than the rates on which this witness assessed the loss it was for them to have produced the same in evidence to rebut the evidence of this witness. The said schedule of rates having been prescribed by Government the respondents must be in its possession. Nothing has been brought on record to suggest that evidence of this witness is not trust‑worthy. We, therefore, hold that the appellant suffered a loss of an amount of Rs. 5,88,794.60 on account of loss of building, construction etc. and we allow this amount to him.

19. As has been discussed above the Land Acquisition Collector as also the learned trial Court did not allow claims of the appellant on account of loss of the business of Ready‑made Garments Factory, Poultry Farm, Dairy Farm, Sheep Farm and Fish Farm on the erroneous assumption that at the time of acquisition of land these were not present on the land. For the foregoing reasons the findings of the learned trial Court on issues No. 3,5 and 5‑A are, therefore, not sustainable and set aside. The claims of the appellant for various items discussed above which have been allowed are summed up as follows:‑ (1) Price of the land Rs. 3,26,500.00 (2) Loss on account of shifting of business of Ready‑made Garments Factory, loss of property and earning from the said business in the process. Rs.16,50,000.00 (3) Damage caused to the Poultry Farm business and building raised for the purpose. Rs.1,93,000.00 (4) Loss caused to the business of Dairy Farm. Rs.75,000.00 (5) Loss of business of Sheep Farm. Rs. 82,000.00 (6) Losses of business of Fish Farm. Rs. 18.000.00 (7) Price of trees Rs. 62,590.00 (8) Damage sustained on account of depreciation in the value of his remaining land by reason of severance such land from the land acquired. Nil (given up) (9) Damage sustained due to loss of buildings, structures, tube‑well etc. Rs.5,88,794.60 Total: Rs.29,95, 884,60 The appellant is also awarded a sum of fifteen per cent on this amount, in consideration of the compulsory nature of the acquisition which amount comes to Rs. 4,49,382.69. Thus in the result the appellant is hereby awarded total amount of Rs. 34,45,267.29. Issues Nos. 3,5 and 5‑A stand decided accordingly.

20. We also direct that the Collector shall pay compound interest at the rate A of 8 per cent per annum from the date on which he took over possession of the land i.e. 30‑1‑1970 to the date of payment of excess amount in the Court. The appellant is also allowed costs of this appeal. H.B.T./M‑1175/L Appeal allowed.