1980 PLP 574 (CLC)

ABDUL SHAKURUL SALAM, J.-An area measuring 48 acres 2 kanals and 1 marla in the revenue estate of village Marala, Tehsil Kharian, District Gujrat was acquired by the Defence Department for the purpose of establish ing a Dairy Farm, vide Notification No. M. I1I-94/EA-158 dated 5th May, 1961 and No. M. 111-94;EA-9001 dated 7th July, 1961 under sections 4 and 6 of the Land .Acquisition Act; 1894. Included in the area was the land of the respondents measuring 17 kanals 11 marlas situated in Khasra Nos. 1708; 67. 1709!67, Khata No. I 4/64, Jamabandi for the year 1960-61.

2. Before the Collector the respondents stated that their land was located -opposite the Mall Road, Kharian Cantonment which was situated near the Commercial area of the Cantonment and they should be paid compensation at the rate of Rs. 500 to Rs. 1,000 per marla equivalent to the verge rate of leases of the commercial sites in the Cantonment area. The Collector, however, held that the area was purely agricultural and while the land of Cantonment was altogether a commercial area within the Cantonment. He observed that "We therefore cannot take into account the future prospective and enhanced rates of the land in anticipation. We have to work out the value of this land according to the market value prevalent at the lime of publication of notification under section 4, i.e. 5th May. 196'." Consequently, on the basis of barani nature of the land, the Collector allowed the compensation at the rate of Rs. 1,500 per acre vide award dated 14-3-1962. The respondents being dissatisfied with the award, filed an, application under section 18 of the Land Acquisition Act, 1894, which was duly forwarded to the learned Administrative Civil Judge, First Class, Guira. It was reiterated that the area being across the G. T. Road in the commercial area of the Cantonment Board, it should have been treated as commercial area and its compensation should not have been for any reason less than those of the plots auctioned by the Cantonment Board.

3. The learned Administrative Civil Judge keeping in view the locale of the area found that the land could be used for commercial or residential purposes and relying on Secretary of State v. Chuni La and others (A 1 R 1931 Lah 207) for the proposition that present use of the property alone has not to be kept in view but its probable use in future has also to be taken into account, held that the respondents were entitled to Rs. 650 per marla (i.e. Rs. 1,04.000 per acre) but as they had claimed the maximum of Rs. 30,000 per acre, they were awarded the compensation accordingly of Rs. 65,812 plus 150 under section 23(2) of the Land Acquisition Act with interest at the rate of 6 % per annum on the said amount (less the amount initially-awarded by the Collector) from the date of possession till payment. This award is dated 16-5-1964.

4. Against the aforesaid award, the appellants filed the present appeal oil 20-10-1964 alongwith an application for condonation of delay (which has been calculated by the office a 52 days) under section 5 of the Limita tion Act.

5. The learned counsel for the appellants has contended that the compensation had to be determined under section 23(1) of the Land Acquisition Act according to the market value of the land at the date of the publication of the notification under section 4 and as the area in question was agricultural land classified as barani the learned Collector had rightly awarded the compensation and the learned Administrative Civil Judge erred in treating the same as commercial or residential for the purposes of calculation of the compensation. He tried to distinguish the judgment relied upon by the learned Administrative Civil Judge and also referred to The Land Acquisition CoPector, Rawalpindi v. Licut.-General Wajid Ali Khan Burki (P L D 1960 Lab. 469).

6. Learned counsel appearing for the respondents contended that there are no good grounds for condoning the delay in filing the appeal and that on merits the learned Administrative Civil Judge has rightly allowed the compensation taking into account the potential use of the property. He has placed reliance on the Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, 6'i:agnhutam (A I R 1939 P C 98) as well.

7. The first question that calls for determination is whether the delay entitling of the appeal of till less than 52 days is to be condoned. In the application under section 5 of the Limitation Act, it is stated "ail application, for the supply of copy of the impugned order (16-5-1964) was submitted on 6-6-1964 and the Clerk of the appellant's counsel in the lower Court continued making enquiries as to the preparation of the copy but was told each time that for lack of availability of file the copy was not ready. Affidavit of the Clerk of the appellants' counsel in the lower Court to the above effect is enclosed. Eventually the copy was delivered on 2-10-1964. It may also be stated that the appellants' counsel in the lower Court was reminded for obtaining copy on nine occasions by the Military Estate Officer after the application for copy was made which is borne out from the official record of the M. E. O's office. In pursuance thereof the counsel detailed his Clerk to make enquiries with the result indicated above. The copy was received in the office of M. E. O. on 7th October, 1964 whereafter the case remained under consideration as to the proprietary of filing an appeal. The case received urgent attention at all levels and the mater was finalized on i9-10-1P

64. Thereafter the case was sent through special messenger to Lahore on the morning of 20th October, 1964 on which date the appeal has been instituted." The application is supported by an affidavit of Kh. Abdul Latif, Sub-Divisional Officer, office of the Military Estate Officer, Rawalpindi. An affidavit of one Lal Khan who claimed himself to he the Clerk of Muhammad Aslam, Advocate was prepared on 12-10-1964. It was attested the same day by an Oath Commissioner. But there is no seal of the Oath Commissioner. Besides that the burden of the delay is being shifted oil to the. counsel and his Clerk which is a matter between the appellant and his agent the counsel, or his Clerk, the copy was ready on 20-6-1054. Its delivery was taken on 2-10-1964 and -was allegedly received in the office of the Military Estate Officer on 7-10-1964. There was absolutely no justification to delay the matter for the next, thirteen days. It is trite law that each day of delay has to be explained. The explanation) that "the case remained under consideration as to the propriety of filing an appeal", and "received urgent attention at all levels and the matter was finalized on 19-10-1964", only shows lack of comprehension and inefficiency par excellence that in a simple case, it could not be decided that the appeal should or should not be filed when the time was already running out. No premium can be placed on inefficiency and indifferent attitude to ones duty. The Supreme Court of Pakistan has held ire Province of East Pakistan v. Abdul Hamid Darji and others (1970 S C M R 558) that Government has no special preference under the law of limitation. 'For anything, it has better knowledge, advice and resources to act within the law of limitation. See also Province of Punjab v. Sh. Zafar Din Ahmad (P L D 1977 Lah. 55). It is obvious that if a private citizen were to seek condonation of delay on the ground that he took time to make up his mind and prepare himself to come to Court after the time, he would not be shown any indulgence. Why should the appellants be Therefore, the appeal being barred by time and there being no good ground for condoning the inordinate delay, the appeal is liable to dismissed as being barred by time.

8. Coming to the merits of the case, the Collector while awarding the compensation appears to be oblivious of the fact that the land was situated within the Cantonmcnt area. He held that it was "purely agricultural land". Even if it were so, its locale in the Cantonment area would make difference in reckoning of the compensation and it cannot be treated at par with the land situated two miles away in the village. It is admitted position now and not denied by the learned counsel for the appellant that the land is situated within the Cantonment Board. It was so stated by Overseer of the Cantonment Board, Mr. Abdul Khaliq P. W. 2 when he deposed that in front of Ayub Avenue Road, the area across the G. 7'. Road (where the land in question is situated) was also within the limits of the Cantonment. Now, coming to the question whether the compensation was to be awarded on the basis that the area was agricultural land or what its market value would be? I can do .no better than first quote the statutory provision. Section 23(1) of the Land Acquisition Act 1894 provides that "In determining the mount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration to lust, tile market-vale of the land at the date of notification under section 4, subsection (1)." It is obvious that the law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining the market value, classific.rtion or the nature of the land may be taken as relevant consideration but that is not the whole truth. An area may be banjar qadim or barani as in the present case but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits. In this connection, we may quote a rather longish passage from a decision of Privy Council in the case of Vyricherla Narnyann Gajapatiraju v. Revenue Divisional Officer, Vizagapalan :-- "It is perhaps desirable in this connection to say something about this expression "the market price". There is not in general any market for land in the sense in which one speaks of a market for shares or a market for sugar or. any like commodity. The value of any such article at any particular can readily be ascertained by the prices being obtained for similar articles in the market. In the case of land, its value in general can also be measured by a consideration of the prices that have been obtained in the past for land of similar quality and in similar positions, and this is what must be meant in general by "the market value" in section

23. But sometimes it happens that the land to be valued possesses some unusual, and it may be, unique features as regards its position or its potent. In such a case the arbitrator in determining its value will have no market value to guide him, and he will have to ascertain as best he may from the materials before him, what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities. For it has been established by numerous authorities that the land is not to be valued merely by reference to the use to which it is being put at tile time at which its value has to be determined (that time under the Indian Act being the date of the notification under section 4(1), but also by reference to the uses to which it is reasonably capable of being put in the future. No authority indeed is required for this proposition. It is a self-evident one. No one can suppose in the case of land which is certain, or even likely to be used in the immediate or reasonably near future for building purpose but which at the valuation date is waste land or is being used for --cultural purposes, that the owner, however willing a vendor, wilt be land for its value as waste or agricultural land as the case may be. It is plain that in ascertaining its value, the possibility of its being used for building purposes would have to be taken into account. It is equally plain however that the land must not be valued as though it had already been built upon, a proposition that is embodied in section 24(5) of the Act and is some times expensed by saying that it is the possibilities of the land and not its realized possibilities that must be taken into consideration. But how is the increase accruing to the value of the land by reason of its potentialities or possibilities to be measured? In the case instanced above of land possessing the possibility of being used for building purposes, the arbitrator (which expression in this judgment includes any person who has to determine the value) would probably have before him evidence of the prices paid, in the neighbourhood, for land immediately required for such. purposes. He would then have to deduct from the value so ascertained such a sum as he would think proper by reason of the degree of possibility that the land might never be so required or might not be so required for a considerable time.'

9. From the above quotation, it would be apparent that compensation has to be awarded on the basis of market value of the land not merely by reference to its actual use but also by reference to the use to which it is reasonably capable of being put in future. Now, the land in question is situated on the left hand side of G. T. Road going from Lahore to Rawalpindi and right in front on the right side goes Ayub Avenue Road vide Exh. P.

1. According to the Overseer of the Cantonment Board, P. W. 2 Abdul Khaliq on both sides of Ayub Avenue Road is Bazar Area No. L which is a commercial area. A plot in this area bearing No. 113 (area 1000 sq. ft.) was leased out for Rs. 29,400, per statement of Cantonment Executive Officer, P. W. 3, Mr. Warts-ur-Rehman Warsi. He said this plot was given for a petrol pump. Its price was high as there was quite a competition. There is a 40/50 feet Nailah, according to the witness between the aforesaid petrol pump and the G. T. Road. From a perusal of Exh. P. 1. it would appear that from the G. T. Road, after crossing the Nallah one has to take a turn on the left to reach the petrol pump. Now, if one were to consider that ,if there be a petrol pump put on the land in question! which is on the main Highway, would that not bring in much more money than a petrol pump to which one can go after crossing a Nallah and taking a turn in a lane and would not the value of the site of the petrol pumps on the main Highway be more than that of the other in the lane ? The learned Adminis trative Civil Judge considered the other pieces of land to determine the compensation payable to the respondent owners and he found that they were entitled to Rs. 2,28,150 but as one of the respondent owner Rahim Dad had appeared as P. W. 4 and assessed the value between Rs. 25;000 and Rs. 30,000 per acre, he allowed the compensation, at the later rate of Rs. 65;812. 1 am not quite sure whether the learned Administrative Civil fudge could not have granted to the respondents what was their due under the law because under section 23 of the Land Acquisition Act he was bound to determine the compensation according to the market value no matter whether the person concerned claimed more or less. No more need be said in this behalf because the respondent owners have not filed any appeal against the award of the learned Administrative Civil Judge and it has to be presumed that they were willing to sell the land at the rate allowed to them and it is one of the principles for determining compensating that market value may be determined on the basis over which a willing seller would be prepared to sell.

10. We have heard the learned counsel for the appellant at length and perused the entire record with his assistance. We find no good ground to differ from the conclusions of the learned Administrative Civil Judge. We affirm his judgment and decree.

11. The appeal is, therefore, dismissed both on the grounds of limitation as well as on merits with costs throughout. S Q. Appeal dismissed.