1990CLC718 (PLP)

MUNIR A. SHEIKH, J.‑‑This appeal is directed against judgment dated 24‑3‑1977 passed by learned Senior Civil Judge, Sheikhupura on reference made to it under Section 18 of the Land Acquisition Act, 1894.

2. The facts giving rise to this appeal are that land measuring 225 kanals 9 marlas situated in village Khanpur‑Nabipur, tehsil Ferozewala, District Sheikhupura was acquired through Notification dated 16‑5‑1974 published in the Official Gazette dated 30‑5‑197.1 issued under Section 4 of the Land Acquisition Act. The appellants were the owners of land measuring 225 kanals 4 marlas out of the said acquired land. The remaining land of 5 marlas was owned by one Ghulam Muhammad which is not subject‑matter of the present appeal.

3. After the completion of the acquisition proceedings the Chief Land Acquisition Collector Punjab, Highway Department delivered Award on 18‑3‑1976. He classified the said acquired land as under:‑ Nehri 181 Kanals 13 marlas Chahi 15 kanals 5 marlas Banjar Jadid 2 kanals 16 marlas Banjar Oadeem 15 kanals 15 marlas Ghair Mumkin. 10 kanals Total: 225 kanals 9 mArlA_s According to his finding land measuring 24 acres 4 kanals and 18 marlas was culturable land which included both Nehri and Chahi lands and the remaining land of 3 acres 4 kanals 11 marlas was found by him to be non‑culturable land which included Banjar Jadid, Banjar Qadeem, and Ghair Mumkin lands as classified by him. He assessed the compensation of culturable land at the rate of Rs.30,000 per acre which in terms of per kanal comes to Rs.3,750 i.e. Rs.187.50 per marla. Compensation of non‑culturable land was asseAsed by him at the rate of Rs.15,000 per acre which comes to Rs.1,875 per kanal i.e. Rs.94 per marla. He also awarded 15% compulsory acquisition charges on the compensation so assessed. The structure standing on the land which was described as Dera was assessed at Rs.83,000 and compensation for standing crops was assessed at the rate of Rs.2,000 per acre. He also awarded 15% compulsory acquisition charges on the compensation assessed for these two items also. The matter of assessment of compensation for trees was deferred. However, through supplementary award delivered on 21‑5‑1987, the compensation for the trees falling to the shares of the each of the following appellants including 15% compulsory acquisition charges was assessed as under:‑ (i) Akbar Ali appellant No.l Rs.43,700. (ii) Asghar Ali appellant No.2. Rs.77,050. (iii) Habib Ali appellant No.3. Rs.4,600. (iv) Shah son of Murad appellant No.4 Rs.42,550.

4. The compensation assessed for the land was ordered to be apportioned among the co‑sharers according to the entries of ownership of the lands in Register Haqdaran Zamin and if they unanimously agreed the same was ordered to be paid in the ratio of their Hissa Dari Qabza'.

5. Feeling dissatisfied with the quantum of compensation assessed by the Collector in the Award the appellants made an application under section 18 of the Land Acquisition Act to the Collector for making reference to the Court for determination of the dispute and award of the Court. Consequently the reference was made to the learned Senior Civil Judge, Sheikhupura. This was contested by the respondents by filing written reply.

6. The case of the appellants as pleaded in the said reference was that the land was building site and the compensation should have been assessed on this basis. They claimed that the compensation at the rate of Rs.6,000 per Marla should be assessed and paid to them which according to them was the market value of the land at the relevant time. The controversies were reflected by the learned trial Court in the following issues framed by it. (1) Whether the petitioners are estopped to raise the plea of mis classification of the land, acquired by the respondents? OPR. (2) Whether the compensation of the land assessed through this award is inadequate and meagre? OPA. (3) Whether the land belonging to the petitioners is a building site and the compensation assessed is inadequate? OPA. (4) Whether the profits of the standing crops have been meagerly and improperly fixed? OPA (5) Whether the compensation for the building is not in consonance with the market value of the said house and other structures? OPA (6) Whether the petitioner Akbar Ali is entitled to Rs.5 lacs on account of the said building? OPA. (7) Whether the award is based on improper evaluation of the market value? OPA. (8) Whether the rate of interest allowed by the respondents is too low? OPA. (9) Whether the date of possession has been wrongly notified and the possession of the site was actually taken much earlier, depriving the petitioners of their right of cultivation? OPA. (10) Whether the classification of the land was wrongly shown and has been changed to the detriment of the petitioners? OPA. (11) Whether the award has resulted in prejudice to the rights of the petitioners and miscarriage of justice? OPA. (12) Whether the award in dispute dated 18‑3‑1976 is liable to be set aside? OPA. (13) What is the market value of the land, structures etc? OPA. (14) Relief. The appellants moved an application before the learned trial Court for appointment of Local Commissioner to make report after visiting the spot regarding assessment of market value of the land as also the surrounding of the disputed land. This application was allowed by the learned trial Court through order dated 25‑9‑1976. Chaudhri Amir Afzal, Advocate Sheikhupura was appointed as Local Commissioner to assess the market value of the disputed land and structure thereon after taking necessary evidence and looking into all necessary factors relevant for the determination of such market value. The learned Local Commissioner submitted his report on 13‑7‑1976. The parties were given opportunity to file objections if they so liked against this report. The appellants did not file any objections whereas the respondents objected to the report through written objections in which they prayed for setting aside the said report. During the pendency of proceedings before the learned trial Court the respondents made an independent application purporting to be under section 18 of the Land Acquisition Act for setting aside the award as according to them the assessment of compensation made by the Collector was much higher than the market value. This application was consolidated with the proceedings pending before the Court on the said reference.

7. According to the report of Local Commissioner the land in question was not assessable as agricultural land but was a building site located within factory area. The Local Commissioner assessed the compensation of the land at the rate of Rs.750 per Marla i.e. Rs.15,000 per Kanal which comes to Rs.1,20,000 per acre. He assessed the structure (house) at Rs.1,25,000.

8. The Government pleader made statement before the trial Court on 14‑1‑1977 that the respondents did not want to produce any evidence in support of their objections filed by them against the report of the Local Commissioner.

9. The parties were afforded opportunities to produce evidence in support of their respective stands. The appellants examined Mr. Amir Afzal, Advocate as A.W.1, Muhammad Anwar as A.W.2, Muhammad Ghafoor as A.W.3, Saeed Ahmad as A.W.4, Essa as A.W.5 and Akbar Ali one of the appellants examined himself as A.W.6. They also produced documents from Ext.P2 to Ext.P8 mutation numbers 27, 158, 159, 162, 247, 264 and 246 respectively and a sale‑deed as Ext.P

9. The respondents on the other hand examined Muhammad Rafiq Patwari as R.W.1 and Zubair Ahmad Sub‑Divisional Officer as R.W.2. They also produced documentary evidence from Ext.D1 to Ext.D19.

10. After considering the evidence produced by the parties, the learned trial Court decided issue No.l in favour of the respondents because the appellants accepted as correct the classification of land made by the Collector in the award. Issues Nos.8 and 10 were not pressed by the appellants, therefore, they were decided against them. Issue No.10 was held to be redundant because the subject matter of this issue was covered by issue No.l which was decided against the appellants. Issue No.4 was given up, therefore, the same was decided in favour of the respondents. Issues 2, 3, 5, 6, 7, 11, 12 and 13 were inter‑connected therefore they were taken up and decided together. The findings of the learned trial Court was that the land was agricultural land because the same was being put to agricultural purposes at the time of acquisition. He assessed the compensation of the land as agricultural land and not building site as under:‑ (i) Culturable land at the rate of Rs.40,000 per Acre. plus 15% compulsory acquisition charges. (ii) Non‑culturable land at the rate of Rs.24,000 per acre plus 15% compulsory acquisition charges. In this manner the assessment of culturable land including 15% was thus determined at Rs.46,000 per acre and that of non‑culturable land at Rs.27,600 per acre. Appellant No.1 was found to be entitled to compensation of Rs.1,25,000 on account of his house in the acquired land. The judgment is however silent about grant of compulsory acquisition charges at the rate of Rs.15% on this amount. As a consequence of these findings, the award of the learned Acquisition Collector was set aside and the appellants' claim to the above extent was allowed through judgment dated 24‑3‑1977.

11. The respondents also challenged this judgment through R.V"A. No.157 of 1977. This appeal as also the said cross appeal filed by the respondents were disposed of by this Court through judgment dated 13‑6‑1981. The appeal filed by the respondents was dismissed on merits whereas the present appeal filed by the appellants was dismissed on technical ground that court‑fee of requisite amount had not been affixed on the memorandum of appeal i.e. Rs.15,

000. The appellants challenged this judgment through Civil Appeal No.171 of 1987 before the Supreme Court of Pakistan which was accepted through judgment dated 14‑2 1989 and the case was remanded to this Court after allowing 15 days time to the appellants for making up the deficiency in the court‑fee. The appellants accordingly made up the deficiency in the court‑fee within the time allowed to them.

12. Learned counsel for the appellants question the correctness of the assessment made by the learned trial Court regarding value of land as also its omission to grant 15% compulsory acquisition charges on the amount of Rs.1,25,000 granted to the appellants as compensation for the house.

13. We have heard the learned counsel for the parties. The question for determination is whether the land in question was a building site or agricultural land as the decision of question of quantum and assessment of compensation centres around the decision of this main question. We have closely scrutinized the documentary as well as oral evidence produced by the parties. The Local Commissioner during local inspection gave opportunity to the parties to produce evidence. The appellants examined as many as nine witnesses apart from documentary evidence from Ext.Pl to Ext.P

9. The respondents did not produce any evidence before the Local Commissioner. The evidence produced by the appellants before the Local Commissioner, therefore, remained unrebutted. After considering all the material aspects of the case and the evidence produced before him the Local Commissioner made a report that the land in question was in fact factory area, therefore, according to his finding the value of the land for the purpose of assessment of compensation was to be determined on the said basis and not as an agricultural land. According to his report the value of the land in dispute was Rs.750 per marla whereas the comepensation of the house assessed by him was Rs.1,25,

000. The appellants did not file any objections against the report of the Local Commissioner therefore, it can safely be concluded that the appellants accepted the correctness of findings of Local Commissioner regarding quantum of compensation assessed by him. The respondents on the other hand, filed written objections against the report but failed to substantiate the same by producing evidence in support of them, rather their learned counsel mad le statement that the respondents did not want to produce any evidence in support of the said objections. Under Order 26 Rule 10 (2), C.P.C. the report of the Local I Commissioner as also the evidence recorded by him is evidence in the case. That being so and considering that the said evidence having gone unrebutted from both the sides, the same was sufficient on the strength of which findings could be recorded by the learned trial Court justifiably under the law. We have examined the impugned judgment and find that the learned trial Court found that the evidence produced by the appellants before the Local Commissioner and even his statement recorded in Court when he was examined by the appellants in support of his report was not successfully challenged in cross‑examination by the respondents. The learned trial Court however appears to have not based his findings for treating the land as building site on the said evidence and the report for the reasons that the land was to be assessed as agricultural land because it was put to that use at the time of acquisition, therefore, in its opinion the compensation could not be assessed treating the agricultural land as building site. But for this reason it is clear from the impugned judgment that the learned trial Court would have accepted the report of the Local Commissioner as cogent, evidence.

14. The learned trial Court, it seems has not followed the law declared by Supreme Court in judgment reported as Fazalur Rahman and others v. General Manager, S.I.D.B. and another PLD 1986 SC 158 in which it has been held that the land is not to be assessed by reference to its present user but by reference to the possible user in future. It is in the report of Local Commissioner that according to Aks Shajra on the eastern site of the land there are situated Pakistan Textile Industry, Shalimar Tanneries, Fardous Textile Industry, Apalo Tanneries and Amin Tanneries. On the Western site at the distance of one Killa there is the Dawood Herculis Fertilizer Factory in front of which there is P.B.S. Petrol Pump and alongwith that there was sufficient Abadi. On the north side of the land across the road according to Local Commissioner there was Grid Station and Factory named as Hollywood Tailors and the entire land was abutting Lahore Sheikhupura Road. R.W.1 a witness produced by the respondents also stated that the land in dispute was situated quite close to the Lahore‑Sargodha Road and except land near the Canal the remaining entire land ran parallel to the Lahore Sargodha Road. He also deposed that the land in dispute terminated at a distance of about two killas from Dawood Herculis Factory and Petrol Pump. He also admitted that there were shops near the Petrol Pump and that all around the disputed area there are factories and Grid Station and further that Haveli was being used as residential house. Examining the evidence as a whole we are convinced that the land had acquired the status of factory area and was rightly held by the Local Commissioner that it be assessed as factory area. The appellants however have failed to establish that the price of the land at the relevant time even as building site was Rs.6,000 per marla as claimed by them. The documents Ext.Pl to Ext.P9 produced by the appellants to claim compensation at the rate of Rs.6,000 per marla cannot be relied upon inasmuch as the report of the Local Commissioner which is substantial evidence in the case by operation of Order 26, Rule 10, C.P.C. was not objected to and the said evidence having been accepted as correct therefore these documents are of no help to the appellants. On the other hand, the respondents produced Exts.Rl to R.15 which include various mutations regarding sales of certain agricultural lands made from time to time which were rightly not given credence by the learned trial Court for the reason that there was no evidence that the said lands were similarly located.

15. Learned counsel for the appellants also argued that the award was delivered by the Collector qua compensation of land on 18‑3‑1976 and the appellants are entitled to the compound interest at the rate of 8% per annum under section 34 of the Land Acquisition Act as the same was not paid or deposited on or before taking possession of the land. The argument has force. If the said amount was neither paid nor deposited on or before taking possession of H the land, the respondents are bound to pay compound interest at the rate of 8% per annum from the date of taking possession. The interest on this account has been claimed from 31‑12‑1974 to 18‑3‑1976 i.e. date of taking possession and delivery of award.

16. For the foregoing reasons, we accept this appeal with costs. The judgment of the learned trial Court is set aside and instead a decree is passed in favour of the appellants in the following terms:‑ (a) That the appellants shall be paid compensation for the land at the rate of Rs.750 per marla plus 15% compulsory acquisition charges on the said amount of compensation. b) The appellant shall also be paid 15% on Rs.1,25,000 which amount was determined as compensation for the house. (c) That the appellants shall be given compound interest at the rate of 8% per annum from 31‑12‑1974 upto the date of deposit/payment under section 28 of the Land Acquisition Act, on the amount in excess of the sum determined by the Collector as compensation of land. (d) The appellants shall also be given compound interest at the rate of 8% per annum under Section 34 of the Land Acquisition Act on the compensation of land determined by the Collector in his award dated 18‑3‑1976 from the date of taking possession of land i.e. 31‑12‑1974 to the date of deposit/payment of the said amount. H.B.T./A‑811/L Appeal accepted/Order accordingly.