1989 PLP 379 (CLC)

This first appeal under section 54 of the Land Acquisition Act is filed by the Land Acquisition Collector, Karachi Irrigation Project, WAPDA, Karachi against the judgment of District Judge, Karachi in Land Acquisition Case No.3/75. The following facts are not in dispute between the parties which may be stated here to illustrate the background of controversy.

2. Agricultural land bearing Survey Nos.54, 55, 56, 76, 77, 78, 79, 80, 109, 114, 115, 116 and 117, measuring 87 Acres 22 Ghuntas situated in Deh Moidan, Tapo Moindan, Taluka Karachi was acquired for purpose of construction of a Resqrvoir Area of Hub Dam, Karachi Irrigation Project. A Notification under section 4 of the Land Acquisition Act was issued by the authorities on 17‑4‑1983 which was followed by another notification dated 27‑6‑1973 exempting the acquired land from the operation of sections 5 and 5‑A of the Act. After issuance of the above notifications the Land Acquisition Officer made an award dated 8‑12‑1973 determining the compensation of land and by a subsequent award dated 9‑3‑1974 compensation in respect of trees, bunds, wells, water tanks, naalies and house constructed on the aforesaid land were awarded. The respondents did not accept the compensation awarded by the Land Acquisition Officer and accordingly on 15‑4‑1974 they made an application to the Collector for referring the matter to the Distt: Judge, Karachi for determining the compensation in accordance with law. The matter was accordingly heard and decided by the Ditrict Judge, Karachi vide his judgment dated 25th May, 1978. It appears that during the course of hearing of reference under section 18 of the Land Acquisition Act, the Distt: Judge; appointed Nazir of the Court to make assessment of the value of the acquired land and on the basis of the valuation so determined by the Nazir the compensation was finally fixed by the learned District Judge. The above judgment of the learned Distt: Judge was challenged by the application in First Appeal No.33/78. This appeal was allowed by a Division Bench of this Court and the case was remanded back to the learned Distt: Judge with the direction that the compensation be determined afresh in the light of the evidence which may be produced by the parties with regard to the market value of the land. After remand of the case the respondents produced three witnesses namely Ghulam Qadir son of Sakhio Khan, Khorat son of Umar and Maru son of Satano. The appellant on the other hand examined the Revenue Tapedar of village Moidan, besides examining the Land Acquisition Officer and an employee of the office of Land Acquisition Officer namely Sultan Mohiuddin. On the basis of the evidence so recorded the learned Distt: Judge enhanced the compensation in respect of acquired land from Rs.600 per acre to Rs.5,000 per acre but maintained the compensation awarded by the Collector in respect other items, namely, bunds, wells, houses, naalies and trees etc. existing on the plot. The appellant is only aggrieved by the fixation of compensation of acquired land by the learned District Judge and have challenged the same in this appeal.

3. Mr. Talmiz Burney, learned counsel for the appellant has firstly contended that the order of the learned District Judge, enhancing the compensation from Rs.600 per acre to Rs.5,000 per acre is arbitrary and based on no evidence. It is contended by the learned counsel that the Land Acquisition Officer had awarded the compensation at the rate of Rs.600 per acre on the basis of actual sales recorded in village form VII during the period of acquisition which was produced before the learned Distt: Judge in evidence. It is accordingly urged that the compensation fixed by the Land Acquisition Officer was in accord with the prevailing market value in Deh and should have been maintained by the learned Distt: Judge. It is also contended by the learned counsel that in any case the earlier order of the learned Distt: Judge, which was set aside in appeal by this Court awarded compensation at the rate of 2.000 per acres which was never challenged by the respondents and as such the learned Distt: Judge should not have granted compensation in excess of the amount earlier awarded in the case. The second contention of the learned counsel for the appellant is that the learned Distt. Judge was not competent to enhance the compensation awarded by the Collector in respect of the acquired land as the reference made to him under section 18 of the Land Acquisition Act related to claim of compensation in respect of bunds, naalies, houses and trees etc. on the land. Lastly it is contended by the learned counsel that the respondents having accepted payment of compensation awarded by the Land Acquisition Officer without protest they shall be deemed to have accepted the award and as such the reference under section 18 was incompetent in law. Mr Latif A. Shakoor, learned counsel for the respondents on the other hand contended that the learned District Judge awarded compensation at the rate of Rs.5,000 per acre keeping in view the potentials of land in accordance with the evidence produced before him after remand of the case by this Court. It is further contended by the learned counsel for the respondent‑claimant that in fact there has been a miscarriage of justice in so far the compensation in respect of the other items namely, trees, bunds, houses etc. constructed on the land were concerned, as according to the learned counsel the evidence led by the claimant respondent before the learned District Judge in respect of compensation claimed for these items had gone absolutely unchallenged but the learned District Judge failed to award compensation for these items according to evidence on record. Learned counsel for respondent went on to argue that in order to do justice this Court in exercise of its power under Order 41, Rule 32 C.P.C should pass a decree in favour of the respondent which is equitable in the circumstances of the case notwithstanding the fact that respondents have not filed appeal against the decree or part of the decree which is against them. I have heard the learned counsel for the parties at length. The Land Acquisition Officer in his Award has referred to number of sales in respect of land in the area but all these sales are much prior to the date of acquisition of the land in suit. The Land Acquisition Officer was produced as a witness in the case before the District Judge by the appellant. In his cross‑examination he admitted that he had fixed the compensation of the land after consulting the Deputy Commissioner of the area concerned. The compensation fixed by the Land Acquisition Officer is, therefore, neither based on the market value of the land nor it takes into consideration the potentials of the acquired land which is the basis for awarding compensation in such case. from the Award of Land Acquisition Officer it appears that the land which was acquired in the case was situated in Katcha area. The Land Acquisition Officer in his award referred to a sale in that area in the year 1967 where land was sold at the rate of Rs.1,200 per acre. The witness Ghulam Qadir examined by the claimant respondent after remand of the case before the District Judge in his evidence stated that in the year 1973 the land in Deh Moindan could be sold between Rs.5 to 7 thousand per acre while in 1980 such land could be sold at the rate of Rs.10 thousand per acre. The statement made by this witness was not seriously challenged in the cross -examination except for making a suggestion to the witness that the acquired land was about a mile away from his own land. The other witness examined by the claimant respondent Khorat also stated in his evidence that in the year 1980 he was offered Rs.10 thousand for half of the land owned by him but he refused to sell the same. To the same effect was the statement of third witness Maru who stated the market value of the land at Rs.10 thousand per acre in the year 1980. The Revenue Tapedar examined by the appellant in his evidence referred to a sale recorded in Deh Form 7 on 12‑3‑1973 which was in respect of two annas share of one Ramzan Khan son of Soomar at the rate of Rs. 618 per acre. On the basis of the statement of this witness and entries in Deh Form 7 learned counsel for the appellant contends that the rate disclosed by the Tapedar should be taken to be the market value of the land prevailing in the year 1973. It is however, significant that this witness was never asked either in exmination‑in‑chief or by way of re‑examination any question with regard to the prevailing market value of the land in the year 1973‑

74. The fact that in Deh Form 7 the above sale transaction was recorded is also of no significance as. there is no valuation recorded in Deh Form 7 with regard to the rate per acre of the land sold. In fact the entries recorded in Deh Form 7 refer to a registered document by which sale was effected in that case but that document was never produced in evidence to establish the terms and conditions of sale and the date when the land was actually sold. In these circumstances mere statement of this witness referring to a single transaction of sale in the year 1973 without saying, anything further with regard to prevailing market value of the land in the year 1973‑74 could not be treated as evidence of prevailing market value of law during 1973‑

74. I have already referred to the statement of Ghulam Qadir who was examined on behalf of respondent and whose statement regarding appreciation of value of land between 1973 to 1980 was not at all challenged by the appellant. From the statement of this witness it is[ evident that the prices of land in the area registered an increase of 100$ during the year 1973 to 1980. Keeping in view the general trend of increase in the prices of land in and around Karachi such increase otherwise appears to be reasonable. The Land Acquisition Officer in his Award referred to a sale in the area recorded in the year 1969 where the land was sold at the rate of Rs.1,200 per acre. This fact appears to be admitted by the claimant appellant also as in the cross‑examination of the Land Acquisition Officer his attention was drawn to this very particular sale by the counsel of the respondents. This sale was recorded in the year 1967 while the acquisition proceedings commenced by issuance of notification in the year 1973. There is a gap of about 6 years in between the period of sale which was recorded in 1967 and the date of acquisition of the land. I have already referred to the evidence of Ghulam Qadir in this case which shows appreciation in the prices of the land between 1973 to 1980 by 100$. Keeping in view the rate of appropriation of land as stated by the appellant witness and also considering the sale in the area in the year 1967 in my view the compensation fixed by the learned District Judge at Rs.5,000 per acre was not justified. The increase recorded in the value of land between 1973 to 1980 was about 100$ in seven years and, therefore, in my view there could not have been increase of about 4 times in the value of land between the year 1967 to 1973. However, keeping in view the proximity of land to Karachi and its potentials I fix the compensation on the date of acquisition for the acquired land at the rate of Rs.3000 per acre. The judgment and decree of learned Court below are modified accordingly. The learned counsel for the appellant has contended that the reference under section 18 of the Act was only directed against the compensation granted by Land Acquisition Officer in respect of trees, wells, bunds, nalies and house on the plot and as such the enhancement of compensation of land was beyond the scope of reference. It is also contended that the respondent‑claimant had accepted the compensation without any protest from the authorities and, therefore, they were disentitled to pursue their case for enhancement of compensation for land. I have gone through the reference under Section 18 of the Land Acquisition Act and find that although no specific assertion in the application was made by the respondents claiming any specific amount of compensation in respect) of the land, but this objection was never raised or pressed by the appellant before the Court below at any stage. In fact the parties tol the reference joined on the issue relating to grant of compensation in l respect of land before the Court below and led evidence accordingly.! Not only this, but even in the earlier appeal filed before this Court! in the case by the appellant, it was never agitated that no compensation for the land could be granted as the respondents had failed to claim the same in their application under Section 18 of the Act. The order passed earlier in the case by this Court clearly show that the case was remitted back to enable the parties to lead evidence to establish the market value of the land on the date of acquisition and both the parties led evidence accordingly before the Court below. In these circumstances, the appellant cannot now agitate that the grant o compensation in respect of land was outside the scope of reference. In so far the last contention of appellant that the respondents/ claimant had accepted the compensation without protest and as such they could not agitate the matter of compensation any further is concerned, this contention too has not impressed me. The receipts executed by the claimant‑respondent were produced before the learned District Judge as Exs.9/1 to 9/16. It is quite clear from these receipts that the claimant who executed them were totally illiterate persons. These receipts were apparently filed in by the office of the appellant and thereafter thumbs‑impressions of claimant/respondents were obtained thereon. No doubt thumb impressions of respondents on these receipts appear under the column amount accepted without protest, but there is nothing in the evidence to show that at the time of obtaining the thumb impression they were informed that they could receive the amount under protest by putting their thumb impressions under another column of the same form which provided for receipt of amount by the claimant under protest. Apart from it the appellants in their evidence before the Court nowhere claimed that the amount was received by the respondents without protest. The learned District Judge, in the impugned judgment dealt with this contention of appellant at length and I do not see any reason to disagree with his conclusion in this regard. Learned counsel for the appellant relied on the case of Zardar Khan v. N..W. ‑F Province (P L D 1982 Pesh. 69) in support of his contention that where a claimant accepts the payment from the authorities without protesting to the amount of compensation he will be precluded from agitating the matter any further under Section 18 of the Land Acquisition, Act. The case cited by the learned counsel is quite distinguishable on facts as in the cited case the claimants had made an application for the payment of compensation to the authorities concerned in which they neither protested with regard to the compensation nor they recorded their protest on the receipts executed by th

1. On the contrary they undertook not to file any appeal against the compensation granted to them. In the present case the second award was given by the Land Acquisition Officer on 9‑3‑1974 while on 15‑4‑1974 the claimants filed application making prayer referring the matter under Section 18 of the Act. In their application they have clearly stated that upon delivery of the Award they had protested to the amount of compensation and this fact was not denied by the appellant in their written statement. In these circumstances the learned District Judge, rightly overrules the objection of the appellant. As a result of the above discussion the appeal is allowed only to the extent that the amount of compensation awarded by the Court f below for the land is modified to Rs.3000 per acre. There will be no order as to costs. M.Y.H/L‑24/K Appeal allowed.