P L D 1977 Karachi 203 (PLP)

ABDUL HAFEEZ MEMON, J.‑This appeal arises out of proceedings under the Land Acquisition Act (hereinafter referred to as 'the Act') An area of 300 acres of agricultural land situated in Deh Sonhari of Taluka Thatta, belonging to the appellant, was acquired by the Public Works Department, for spill of Kalri Lake in Hheruck Sub‑Division of District Thatta. Possession. of the land was taken by the respondent on 20‑4‑1956 while preliminary notification under section 4 of the Act was published on 8‑1‑1958 and declaration under section 6 and notice under section 9 of the Act were issued subsequently. The then Land Acquisition Officer, Mr. Said Rajput, awarded compensation at the rate of Rs. 375 per acre for the entire land on the cultivation basis i.e. Batai rental system, prevalent in the area, as there had been no sale of land itself or of the land in the vicinity for the last five years, with 15 per cent, far compulsory acquisition and interest at 6 per cent. The award given by Mr. Said Rajput, was, however, not approved by the Commissioner and was not filed. Instead, another modified award was announced and filed by another Land Acquisition Officer, Mr. Uris Shoro, who awarded compensation at the rate of Rs. 240 per acre for 198 acres only, as being cultivated area and at Rs. 120 per acre for the remaining 101 acres as being uncultivated area, as directed by the Commissioner, with 15 per cent. for compulsory acquisition and interest at Its. 6 per cent. by his award dated 4‑12‑1964 which was announced on 22‑9‑196 . The total amount awarded to the appellant worked out to Rs. 1,04,878‑

85. Aggrieved by the award, the appellants moved the Land Acquisition Officer under section 18 of the Act for making reference to the District Court and claimed compensation at Its. 1,000 per acre for the entire area on the grounds that it was very favourably situated near the National Highway to Karachi and was at a distance of 3 miles from Jhimpir Railway Station and one mile from Dargah of Amir Pir where Agha Khani Khojas come in thousands every year to attend annual fair and that on its western side there existed beautiful range of hills on which was also situated the grave of Bibi Noori, wife of the famous King Jam Tamachi. The further ground taken was that the land situated in the adjacent dehs had been acquired by the same department for the same purpose at much higher rate of compensation and that even in the previous Award given by Mr. Said Rajput, the then Land Acquisition Officer, in respect of this very land he had been given compensation at the rate of Rs. 375 per acre for the entire area acquired by the respondents. In the reference, the learned Additional District Judge formed the view that although, ordinarily, compensation had to be assessed according to the market value of the land on the date of publication of notification under section 4 of the Act and other considerations provided in sections 23 and 24 of the Act, but, section 23 of the Act had been amended by section 38 of the West Pakistan Agricultural Development Corporation, Ordinance, 1961 (hereinafter referred to as 'the Ordinance') in that, subsection (3) had been added to section '3 of the Act according to which market value of the land acquired by the Corporation was required to be determined in the basis of average net income of the land for five years preceding 1st September 1961, provided that if in any of these years that land or any portion of it has not been cultivated, the net income of such land or portion that year shall be taken to t)e three times the land Revenue assessed thereon or if no land revenue has been so assessed, three times the lowest rate of land revenue assessed in tire neighbouring land, and Kalri Lake Development Scheme being a Ghulam Mohammad Barrage Project was governed by the Ordinance which being retroactive in operation applied to the present land acquisition proceedings. Accordingly, he went on to hold, the compensation awarded to the appellant was adequate, although not strictly in accordance with the Ordinance, and the appellant had failed to prove his case for enhancement and rejected the reference by his judgment dated 30‑I1‑1967. Hence this appeal. First contention raised by Mr. Khalid Ishaque, learned counsel for the appellants, was that the learned Additional District Judge was wrong in holding that the said amendment introduced by the Ordinance in section 23 of the Act providing for determining market value on the basis of average net income of the land for live years preceding 1st September 1961 or on the land revenue assessment basis, as against the usual basis, was applicable in the instant case, for, firstly, the land in question was acquired not by the West Pakistan Agricultural Development Corporation but by the P. W. D , secondly, notification under section 4 of the Act acquiring the land was published on 8‑1‑195 s and this being the crucial date, the appellants became entitled to receive compensation under the Act according to the market value etc. as on 8‑1‑1958 and not under the Ordinance which came into force much later on 20‑9‑1961 and was, therefore, not applicable to the acquisition proceedings in the instant case. In support of his contention, the learned counsel relied upon P L D 1968 liar. 697, P L D 1964 S t; 410, P L D 1970 Quetta

35. P L D 1966 S C 547, P L D 1969 S C 187 and P L D 1968 Dacca

143. Next contention of Mr. Khalid Ishaque was that the learned Additional District Judge was also wrong in holding that the appellant had not discharged his burden by producing sufficient evidence to prove that he was entitled to enhanced compensation inasmuch as, the appellants had produced several awards on record as Exhs. 34, 35, 36, 37, 38 to show that the land situated in the adjacent dehs and possessing same features was acquired by the P. W. D. for the same Kalri Lake Project at much higher rate of Compensation than awarded to the appellants and that compensation in those awards granted for the entire acquired land. Mr. Suleman Memon, learned Additional Advocate‑General, appearing for the respondent, first raised the question of limitation and simply contended that this appeal was time‑barred by one month and was, therefore, not competent. On merits, learned Additional Advocate‑General repeated the contentions raised by him in the connected Appeal No. 35/68 and argued that whether or not Agriculture Development Corporation Ordinance, 1961 was retroactive and applied to the present acquisition proceedings was really not relevant in this appeal as neither the learned Additional District Judge himself had assessed the compensation on the basis of the newly added subsection (3) of section 23 of the Act, nor was it feasible to do so as the land had been taken possession of by the P. W. D. in 1966, five years before the promulgation of the Ordinance in 1961 whereafter it had remained uncultivated with the result that market value could not have been assessed either on the yearly income basis or on the basis of land revenue assessment of the land itself or of the neighbouring lands as they too had been acquired on the same dates and since then had remained uncultivated. Consequently, the absence of any sale having taken place of the land itself or of the neighbouring land in the last 5 years, the only method available for assessing the compensation in the instant case was on the cultivation basis as was actually done by the learned Land Acquisition Officer. The learned Additicnal Advocate‑General accordingly went on to contend that on merits this appeal he decided on the basis, whether or not, on the cultivation basis, the appellants had been awarded adequate compensation for the land acquired from them. Mr. Khalid Ishaque in reply submitted that he was agreeable to the appeal being decided on merits on the basis suggested by tile learned Additional Advocate. General. As to the question of the app‑‑al being time‑barred, learned counsel conceded that the appeal had been filed 29 days beyond the prescribed period of limitation. He, however, contended that, in the circumstances detailed in the affidavit filed in support of the application under section 5 of the Limitation Act, sufficient cause had been made out for condoning the delay. Since the question of limitation has been raised by the learned Additional Advocate‑General, which even otherwise Court itself is required to notice, it will be only appropriate that it be dealt with first. It is an admitted position that this appeal was filed 29 days beyond the prescribed period of limitation. This delay has been explained in the affidavit filed in support of the application under section 5 of the Limitation Act as under :‑ "I, Rahimdad son of Gul Mohammed Jakhro, Muslim, adult, resident of Sonda, Taluka Thatta, presently at Karachi state on solemn affirmation as under (1) That I am the General Attorney of the 3 ladies who are the appellants in this case. (2) That after the award I had enquired at the office of the Collector and I was told that Mr. Mohammad Usman Soomro has filed an appeal and I should await its decision as these women would get the same benefit of that decision without having to spend anything ; and that in the circumstances it was not necessary to appeal, which might cause considerable expenses to the appellants. (3) That last week I met Mr. Mohammad Usman Soomro and I enquired about his appeal whereupon he told me that he had filed an appeal before this Honourable Court and that it was not an appeal on the administrative side where the ladies could get benefit without filing an appeal. He took me to his lawyer. Mr. Jalaluddin M. Baloch on or about 7‑5‑1968 who also advised me that it was essential for the ladies to file a separate appeal. I thereupon went back to my village and contacted the ladies and informed them that I have been misled into believing that filing of a separate appeal was not necessary and that the true situation was that the appeal has to be filed on their behalf also. The ladies thereupon asked me to take all necessary steps post haste. I, therefore, got in touch with Mr. Mohammad Usman Soomro and asked him to get the same counsel file an appeal on behalf of these ladies as he has filed his appeal. Thereafter the appeal has been prepared, the court‑fees obtained and the matter is being presented herewith. (4) That the order like the impugned order of the same date is already in appeal before this Hon'ble Court in the case of Mr. Mohammed Usman Soomro which appeal is in time. That the decision in that case would substantially dispose of the case of these ladies also. I am advised that in such circumstances the superior Courts have sometimes been pleased to condone delay in filing an appeal. (5) That all the appellants are pardahnashin ladies who had no knowledge about the law nor have the means to get in touch with the counsel to appear for them or defend them and had been misled on account of my mistake stated above. They shall be greatly prejudiced if this period is not condoned." The question is whether the above grounds make out sufficient cause for condoning the delay of 29 days. It may be mentioned here that admitting Bench in their order dated 7‑8‑1968 had granted the application for condoning the delay subject to any just exception taken at the hearing and the learned Additional Advocate‑General also did not controvert the above explanation by pressing the counter‑affidavit. It is conceded that Haji Mohammad Usman Soomro, the Zamindar and headman of the appellants, had filed the Appeal No. 35/65 in time against the judgment passed by the same learned Additional District Judge dismissing the reference for enhancement of compensation in respect of his land situated in deh adjoining to deh where the appellants' land was situated. It is also conceded that the grounds taken in that reference were almost identical to those raised in the reference under the present appeal and both were rejected by the learned Additional District Judge on the same grounds. Such being the case, it is quite possible that the deponent attorney of the appellants genuinely thought that since Wadero Mohammad Usman had already filed Appeal No. 35/65 against the dismissal of his reference, the decision in that appeal would also enure to the benefit of the appellants and, therefore, it was not necessary to file a separate appeal till he was informed of the correct position. It is also not disputed that this appeal involves some common pints o law and fact as are involved in the other connected Appeal No. 35/65 heard alongwith it and that the decision in that appeal filed in time would apply equally to the present appeal. Further it is also not denied that the appellants in this cast are illiterate pardahnashin ladies who were represented by the attorney who has frankly regretted his mistake and has pleaded that the poor ladies may not be penalised for his mistake, which indeed would be so, if the delay is not condoned. Having, therefore, given our utmost consideration to the question in the light of above, we feel satisfied that, in the circumstances of this case. sufficient cause has been made out for condoning the delay and we hold accordingly. This brings us to consider the appeal on merits. Both the learned counsel have submitted that no finding need be given whether or not, Agricultural Development Corporation Ordinance, 1961, was retrospective and applied to the acquisition proceedings in hand and that the appeal be decided on the basis, whether or not, on the batai rental system, the appellants have been granted adequate compensation. The course adopted by both the learned counsel is, indeed, proper. The learned Additional District Judge after taking the view that the Ordinance was applicable to the proceedings neither proceeded to determine the market value of the land on the basis of subsection (3) of section 23 of the Act introduced by the Ordinance nor was it feasible to do so in the instant case for the reason that the possession of the land in question as well as of the land situated in the adjoining deh was taken over by the Government in 1956, whereafter the same remained uncultivated throughout with the consequences that the market value of the land could not have been assessed either on the basis of average net income for 5 years before 1‑9‑1961 or on the land revenue assessment basis, as envisaged by the aforesaid subsection (3), even if the Ordinance was assumed to be retrospective in operation and applicable to the present acquisition proceedings, although we have grave doubts about it being so, for the reasons, firstly, that the notification under section 4 of the Act was published on 8‑1‑1958 which being the crucial date for assessing compensation, the appellant became entitled to receive certain sum of money as compensation according to the market value prevalent on the aforesaid date, as envisaged by section 23 of the Act. Any subsequent amendment made by a law in the Act, such as made by the Ordinance, which had the effect of changing the aforesaid mode of determining compensation in such a manner that it adversely affected and reduced the entitlement of the appellant to receive that amount, could not be termed as procedural. Secondly, all that section 38 of the amending West Pakistan Agricultural Development Ordinance, 1961 provides is that‑ "For the purpose of compulsory acquisition of land by the Corporation, the Land Acquisition Act shall be deemed to have been modified as indicated in the Schedule." Clause 9(3) of the Schedule in turn provides :‑ "At the end of section 23 of the said Act, the following new subsection (3) shall be deemed to have been added, namely, "(3) For the purpose of clause first of subsection (1) of this section, the market value of the land shall be determined on the basis of the average net income of that land for the five years preceding lot September ‑ 1961. Provided that if in any of these years that land or any portion of it has been cultivated, the net income of such land or portion in that year shall be taken to be three times the land revenue assessed thereon, or if no land revenue has been so assessed, three times the lowest rate of land revenue assessed on the neighbouring land." The effect of the above amendment, in our opinion, is only this, that although subsection (3) does not form part of the Land Acquisition Act itself, but, for the purpose of compulsory acquisition of land by the Corporation, section 23 of the Act will be read as if there existed subsection (3) in it. The amending section of the Ordinance does not, however, proceed further to mention any particular point of time at which this amendment or modification was to come into force nor does it say that for the purpose of compulsory acquisition of land by the Corporation, the Land Acquisition Act shall be e deemed always to have been modified. Such being the case, the said amendment could come into effect from the date the Ordinance itself came into force which, admittedly, was on 20‑9‑1961. Then, the amendment itself provides 'that market value of the land shall be determined on the basis of the average net income of the land for the five years preceding 1st September 1961, which is yet another indication that the amendment was not retrospective. pima facie, therefore, learned Additional District Judge does not appear to be correct in holding that the amendment was retrospective. However, since both the learned counsel did not want any definite finding to be given on this question, we leave the matter to rest here for yet another reason that we did not have the advantage of the arguments of the learned Additional Advocate‑General, in view of his submission that this appeal be decided on the common ground whether, on the batai rental system prevalent in the area, the compensation awarded to the appellants was adequate and proper, which we now proceed to do. Admittedly, the land was held on unrestricted tenure and its soil was normal and nearly two‑third of it had been under cultivation. It was also conceded by the learned Additional Advocate‑General that looking to the figures, entire land was arable. Such being the condition of the cultivator land and its soil, and it being a settled principle that in assessing the value of lands compulsorily acquired, consideration should be had to all the potential uses to which the land can be but, as well as all the advantages, present or future, which the land possesses in the hands of the owners, the appellant was, indeed. C entitled to compensation at the same rate for the entire area of 300 acres and not at different rates for different areas. Indeed, even the previous Land Acquisition Officer Mr. Said Rajput, who had visited the land in question, had also awarded compensation at the same rate for the entire land, although his award was not approved by the Commissioner merely on the basis of the letter, validity of which the learned Additional Advocate‑General was unable to explain and justify after having rightly conceded that the entire land was cultivable. Having thus held that the appellants were entitled to compensation at the uniform rate for the entire land, the next and the last question for consideration is, what; should be the rate of compensation. The Land Acquisition Officer has awarded compensation to the appellants at the rate of Rs. 240 per acre for the 198 acres as being cultivated land and at Rs. 120 per acre for the remaining 101 acres, as being uncultivated, whereas the learned counsel for the appellants has contended that the appellants ought to have been awarded compensation at the rate of Rs. 1,000 per acre for the entire land in view of the favourable location etc. of the acquired land. We do not agree with either. It is a common ground that per acre rate had to be worked out on the batai rental system according to the formula provided in Baker's Circular No. 6183 dated 29‑10‑1926 which was produced by the learned Additional Advocate‑General himself. According to this formula, the rate worked out to Rs. 375 per acre. It was on the basis of this very formula that the previous Land Acquisition Officer Mr. Said Rajput had worked out the rate at Rs.

375. Indeed, learned Additional. Advocate‑General also had to concede that according to the said formula the rate would work out to Rs. 375 per acre. The same appears to be the view even of the present Land Acquisition Officer as be in his evidence stated that the rate of Rs. 240 per acre, as against Rs. 375 per acre was awarded only" on the basis of the instructions and by the Commissioner and no other basis", clearly implying thereby that, if worked out on the cultivation basis, even he would have fixed the rate at Rs. 375 per acre as done by his predecessor but because be bad been instructed by the Commissioner, who was his superior, he fixed it at a different rate. Such being the case, there lay no justification in denying this rate of Rs. 375 per acre to the appellants ; particularly, when, for the lands situated in the adjoining dehs acquired at the same time for the same Kalri Lake Project, compensation had been awarded at the D rate worked out on the basis of the aforesaid formula, as shown by the awards produced by the appellants on record. For the same reasons, the appellants also could not legitimately demand compensation at a rate higher than they were entitled to under the aforesaid formula. As to the ground of the land being favourably situated, we have not been impressed, muchless persuaded, to take a view different from that taken by the learned Additional District Judge. Indeed, the alleged favourable circumstances relied upon by the appellants for demanding higher rate of compensation were really not material and were rightly ignored by the learned Additional District Judge. The net result of the above discussion is that the appellants are held to be entitled to compensation for the entire area of 300 acres at the rate of Re. 375 per acre with 15 per cent. for compulsorily acquisition and interest at 6 per cent. We allow the appeal accordingly with no order as to the costs as the success has been partial. This appeal is allowed accordingly. MIR KHUDA BAKHSH MARRI, J.‑I agree. S. A. H. Appeal allowed.