P L D 1989 Supreme Court 119 (PLP)

SAAD SAOOD JAN, J.‑‑These are two cross‑appeals from the judgment dated 10‑10‑1977 of the Lahore High court in a matter relating to acquisition of land.

2. The appellants in Appeal No.338 owned about 218 kanals of land in Chak Nc.581 of Toba Tek Singh District. Out of their holding an area measuring 9 kanals and 9 marlas was acquired by the Provincial Government) for the construction of a protection Bund on river Ravi. In the proceedings taken for the determination "if‑compensations by the Land Acquisition Collector, the appellants claimed compensation under a number‑ of heads but now, only two require consideration. These are:‑‑ (i) market value of the land, and (ii) damage sustained by the remaining holding of the appellants on account of the construction of the Bund. Under the first head, they asked that the value of the land should be assessed at the rate of Rs.6,000 per acre. With respect to the second head, they alleged that the construction of the Bund had the effect of damaging their remaining holding inasmuch as the Bund would expose it to the ravages of flood.

3. As regards the first head, the Land Acquisition Collector fixed the market value of the land at the rate of Rs.3,356.80 per acre. With respect to the second head, although he found that with the construction of the Bund there was likelihood of great damage to the unacquired part of the appellants' holding, he rejected their claim.

4. The appellants being dissatisfied with the award of the Land Acquisition Collector sought a reference under section 18, Land Acquisition Act to the Court. Their prayer in this regard was accepted and the dispute was referred to the Administrative Civil Judge, Faisalabad. The learned Judge recorded the evidence led by the parties and after considering the same he directed that the market value of the land should be worked out at the rate of Rs.4,000 per acre. He did not record any finding on the question whether the appellants were entitled to extra compensation for the damage sustained by their unacquired holding as a result of the construction of the Bund. He also did not allow any additional amount on account of the compulsory nature of acquisition as also any interest on the amount of compensations. The appellants preferred an appeal before the High 'Court. The learned Bench which heard the appeal, upheld the decision of the Administrative Civil Judge with regard to the rate at which the market value should be worked out. It also found that the appellants were entitled to solatium of 16% on the amount of compensations and to compound interest, It further held that they should have been compensated for the damage which their remaining holding had suffered on account of the construction of the Bund. Since no inquiry had been held to determine the compensations under this head, the learned Bench remanded the case to the Land Acquisition Collector for assessing and awarding compensations in this regard also.

5. From the decision of the High Court, the Provincial Government as well as the appellants have filed separate appeals.

6. The sole grievance of the appellants is that the learned Bench, in the High Court erred in not raising the rate for computing the! market value to 11s.6,000 per acre‑ It is to be noticed that the matter relating to the determination of the rate is one essentially of a fact, Learned counsel appearing for the appellants has not been able. to show that the concurrent finding of the High Court and the, Administrative Civil Judge on this issue suffers from any infirmity.! We would accordingly dismiss the appeal filed by the appellants.

7. As regards the appeal preferred by the Provincial Government (C.A. No.98 of 1977), it is contended by Mr. M. Nawaz Abbasi, Assistant Advocate‑General, that the construction of the Bund was not likely, to damage the remaining holding of the appellants and that the use to which the Provincial Government intended to put the acquired land could not be a relevant consideration for awarding additional compensations to the owners so far as in first part of the contention is concerned, there is a finding by the Land Acquisition Collector that the construction of the Bund would expose the remaining holding of the appellants to a greater danger of flood. This finding received support from the evidence led by the appellants before, the Administrative Civil Judge and the Provincial Government did not care to rebut it in any manner. Thus, the assertion of the appellants in this regard remains unchallenged. We have, therefore, no hesitation in holding that there is a factual basis for the case of the appellants on this ground.

8. The claim of the appellants that they are entitled to receive extra compensation for the damage sustained by the remaining holding on account of the construction of the Bund is based on clause fourthly of section 23(l), land Acquisition Act. It may be mentioned that this subsection sets out the relevant considerations in determining the amount of compensations payable for the land acquired under the Act. The clause in question reads as follows‑ "the damage (if any) sustained by the person interested , at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings. " This clause as its very language shows recognizes the right of a land‑owner to claim extra compensations in addition to the market value, for the damage done to his other property by reason of the acquisition of a part of his holding. Ordinarily no land‑owner would use or allow any one else to use any part of his land in a manner which would reduce the utility or the price of the rest of his property; for the same reason he would be most reluctant to sell any part of his property to a purchaser who intends to use the same for a Purpose that Would affect the utility or price of his remaining property. But where the State interferes in exercise of its paramount right and forces the owner to surrender a part of his property for a public purpose and the public purpose is such that it leads to depreciation in the value of his other property, there is no reason why the State should not compensate him for the loss so suffered. Clause fourthly of section 23G), ibid, would clearly support the claim of the owner on this count. It may be mentioned that claim for compensation of this nature is not unprecedented. See Thomas Cristopher Cowper Essex v. Local Board for Acton (1889) 14 Appeal Cases 153)), Wernicke v. Secretary of State for India (2 Indian Cases 562), Guru Das Kundu Chowdhry v. Secretary of State for India (22 Indian Cases 354) and Nathar Hussain v. Deputy Collector (AIR 1916 Madras 1146).

9. One of the justifications which the Land Acquisition Collector gave for not awarding extra compensations to the appellants was that 'the magnitude of the problem could only be assessed by the Technical Officers of the Department at High Level'. Perhaps the problem was not so technical as the learned Acquisition Collector thought, for one fair measure of the compensations claimed by the appellants could be the difference in price of the land before the acquisition and the fall in its value consequent upon its acquisition for the construction of the Bund.

10. For the reasons stated above we are of the opinion that the High Court was justified in remanding the case to the Land Acquisition Collector for the determination of the additional compensations under the relevant clause of section 23(l), Land Acquisition Act. We would therefore dismiss the appeal preferred by the Provincial Government also.

11. The parties shall bear their own costs in the two appeals. MBA /P-72/S Appeals dismissed.