1988 PLP 1387 (MLD)

MUNIR A. SHEIKH, J.‑‑This judgment shall dispose of R.F.A. Nos.14 of 1988 and 26 of 1988, which have been directed against the same judgment and decree passed by the learned Civil Judge Ist Class, Lahore, on reference under Section 18 of the Land Acquisition Act, 1894. However, it shall remain on the file of R.FA. No.14 of 1988.

2. The facts of the case giving rise to these two appeals briefly are that out of 25 Kanals of land owned by the appellants land measuring 11 Kanals comprising Khasra No.11723/369 min situated in Mauza lchhra, Lahore, was acquired through notification under section 4 of the Land Acquisition Act published in the official Gazette dated 14‑12‑1977 for construction of Grid Station. The possession of the land was taken by the Collector on 6‑1‑1981. The Land Acquisition Collector assessed the compensation at the rate of Rs.2,850.85 per marla which according to the finding of the Collector was the market price of the land at the time of publication of notification under section 4 thereof as such total amount of Rs.7,66,924.85 was found due to the appellants as price of land which is inclusive of 15% compulsory acquisition charges as also compound interest at 8% from 6‑1‑1981 to 21‑10‑1981 (289 days). Feeling dissatisfied with the quantum of compensation the appellants made an application under section 18 of the Land Acquisition Act, for sending a reference to the Court to determine the market value of the land and other amounts claimed by the appellants. Consequently a reference was made to the learned trial Court. It was averred in the reference that the compensation assessed was grossly inadequate. It was pointed out that the Deputy Commissioner, Lahore, assessed approximate value of the land at Rs.10,000 per marla which figure was arrived at by a thorough investigation by E.A.C. (Revenue) Lahore and Assistant Commissioner with the powers of the Land Acquisition Collector after inspection of the spot. He also asserted that this assessment was also endorsed by the Board of Revenue and the Land Acquisition Collector ignoring this assessment had awarded Rs.2850.85 per marla which was extremely on the lower side. The appellants claimed that the market price of the land at the relevant time was Rs.20,0W per marla which was just and fair demand. It was also asserted that the land was situated in a thickly populated area in the vicinity of the most developed scheme e.g. Gulberg Lahore both commercial and residential. The land had 700 feet front. It was situated at 80 feet wide metalled road constructed by the L.D.A., and was situated at a distance of hardly 50 yards from the main Gulberg Road and just near Sher Pao Bridge and Lahore Cantt. Railway Station. The appellants also pleaded that after the construction of the Grid Station the value of the remaining land will be substantially diminished inasmuch as it would be a continuous source of nuisance. The appellants also claimed compensation for the boundary wall and foundations built by the appellant for the full-fledged pacca house for which an amount of Rs.1,00,000 was claimed. The appellants claimed Rs.40,00,000 as price of the land at the rate of Rs.20,000 per marla plus 15% compulsory acquisition charges amounting 4o R.6,66,

000. In addition to this compound interest at the rate of 8% per annum from 6‑1‑1981 till the date of actual payment was also claimed alongwith compensation on account of depreciation in the value of their, remaining land. This reference was contested by the Land Acquisition Collector, WAPDA, Lahore, who filed reply in which he denied all these claims put forth by the appellants and maintained that the Land Acquisition Collector had correctly assessed the compensation at Rs.2,850.85 per marla and no increase in the same was justifiable. The learned trial Court framed the following issues:‑ (1) What was the market value of the suit land at the time of its acquisition? (2) What should be compensation to be awarded to the plaintiffs? (3) Relief. In support of their case the appellants examined Abdul Malik Office Assistant L.DA., Lahore as P.W.1, Malik Muhammad Nawaz P.W.2, Syed Zakir Hussain p.W,3, Abdul Majeed, Land Acquisition Clerk P.W.4 and Muhammad Jamil one of the appellants appeared as P.W.5. Apart from this oral evidence the appellant.. also produced documentary evidence such as memo. dated 2‑5‑1978 from Deputy Commissioner, Lahore to Commissioner Lahore Division Ex.P.1, letter dated 8‑9‑1979 from the Additional Revenue Commissioner Board of Revenue Punjab to the Deputy Commissioner, Lahore, Ex.P.2, letter from Deputy Commissioner/Collector, Lahore, District Lahore to the Additional Revenue Commissioner, Board of Revenue Punjab, Lahore dated 28‑4‑1981 Ex.P.3 and letter from the Secretary (Settlement), Board of Revenue Punjab to Malik Muhammad Afzal Awan dated 8‑3‑1982 Ex.P.4. On the other hand the respondent examined Nisar Ahmad Kanugo R.W.1 and Muhammad Mohsin Shah Naib‑Tehsildar WAPDA as RW.2.

3. After considering the evidence produced by both the parties the learned trial Court under issue No.1 recorded a finding that the market value of the land in question was Rs.15,000 per marla at the time of publication of first notification. Accordingly under issue No.2 he assessed price of 11 kanals of land at the rate of Rs.15,000 per marla at Rs.33,00,

000. An amount of Rs.4,95,000 was awarded as 15% compulsory charges. The learned trial Court also allowed compound interest at 8% on the amount of Rs.30,28,075.15 which was the amount in excess of the amount declared in the award, from 6‑1‑1981 till the payment of such excess in Court and accordingly passed the impugned judgment and decree on 26‑10‑1987.

4. The appellants have challenged the said judgment and decree on the ground that the compensation was still inadequate whereas the respondent has filed separate appeal (R.FA. No.26 of 1988). praying that the assessment of compensation made by the Collector in his award may be maintained.

5. We have examined the record with the assistance of the learned counsel for the parties who have taken us through oral as well as documentary evidence. Abdul Malik P.W.1 stated that plot No.19‑B Block 'P' Gulberg‑II was auctioned on 4‑9‑1979 and‑ according to the highest bid the price came to Rs.3,15,500 per kanal. He admitted in the cross‑examination that the area where the said plot was situated was within the scheme which had all the civic amenities and the prices were less at other places. The evidence of this witness does not advance the case of the appellants because when Jamil Ahmad appeared as PW.5 he frankly admitted that Ghandi Park where the land in dispute was situated was not under any sanctioned scheme of LDA. Malik Muhammad Nawaz PW.2 is a registered property dealer who stated that his office was at Shadman. He claimed to have mediated in many sale transactions, in the year 1977‑

78. According to him sale transactions in, Blocks N & T were struck at the rate of Rs.20,000 or Rs.22,000 per marla. He stated that he has seen the disputed land which was situated in front of Block N and all the lands around this were developed. However, in cross‑examination he admitted that he had not seen the record prior to 1980. His registration number was 1 of 1980‑

81. He admitted that he had not arranged any transaction in Ghandi Park. The statement of this witness is also of no help to the appellants to establish that the market price of the land in dispute was Rs.20,G00 per marla as claimed by them. Syed Zakir Hussain PW.3 is another property dealer who in general terms supported the evidence of PW.2. He could not produce the record of the registered documents as according to him the same was destroyed every year. This witness is also of no help to the case of the appellants. Abdul Majeed PW.4 who is Land Acquisition Clerk is a formal witness who produced certain documents from the acquisition file the evidentiary value of which shall be separately discussed. One of the appellants namely Jamil Ahmad appeared as PW.5 who in his statement claimed that market price of the land in dispute was about Rs.20,000 per marla. The entire evidence on the point of market value is only oral which is not such on which any reliance can be placed. Even, the oral evidence does not establish the claim of the appellants that the market price of the land in dispute at the relevant time was Rs.20,000 per marla. On the other hand the respondent has not adduced any evidence in support of its plea that the market price of the land at the relevant time was Rs.2,850.85 per marla. Learned counsel for the respondent maintained that since the Land Acquisition Collector has determined the market price at the said rate on consideration of certain material, therefore, the award should be maintained as such. We are afraid the argument is wholly misconceived. On reference the matter was before the Court and it was the duty of the respondent to produce positive evidence before the Court to support its plea that as a matter of fact the market price of the land was Rs.2,850.85 per marla. There being no evidence to this effect produced by the respondent, therefore, the contention that the market price of the land was Rs.2,850.85 per marla is hereby repelled.

6. Coming to the documentary evidence, it is in EX.P.1 that the Deputy Commissioner after holding an enquiry through Extra‑Assistant Commissioner who inspected the spot and keeping in view the situation of the land and its potential value came to the conclusion that market value of the land was Rs.10,000 per marla. It was duly noticed that the land was situated 50 yards away from the main Gulberg Road, Lahore, and was within the radius of 200 yards of Sherpao over bridge and Cantonment Railway Station. It was keeping in view of all these facts that a decision was consciously taken by the Deputy Commissioner that the market price of the land was Rs.10,000 per marla at the relevant time. This position was further confirmed and maintained in Ex.P.2 and Ex.P.3. 1n Ex.P. 3 the Board of Revenue took an exception to the assessment made by the Land Acquisition Collector at Rs.2,850.85 per marla and went to the extent of calling upon him to explain his conduct for making deviation from the rule, to the prejudice of the vested rights of the owners. The learned trial Court while determining the market price of the land at Rs.15,000 per marla rested its findings on document Ex.P.3. This document is a letter from Deputy Commissioner to the Additional Revenue Commissioner, Board of Revenue Punjab which was written on 28‑4‑1981 in which it was pointed out that the market price "at the present moment" i.e. 28‑4‑1981 was not less than Rs.15,000 per marla but it has altogether been overlooked that the market price of the land at the time of publication of notification under section 4 on 14‑12‑1977 under the" law was to be made the basis for assessing the compensation. The learned trial Court misconstrued Ex.P.3 in assuming that according to this document Rs.15,000 per marla was the market price of the land on 14‑12‑1977 when notification under section 4 was published to the Official Gazette. It has been firmly established through the documentary evidence such as EX.P.1 to Ex.P.4 that undoubtedly the price of the land in dispute at the relevant time was Rs.10,000 per marla. This position has throughout been admitted and maintained by the Deputy Commissioner and Board of Revenue and the finding of the Collector in his award that market price of the land was Rs.2,850.85 per marla, therefore, cannot legally be sustained. We hereby hold that the market value of the land at the time of publication of notification under section 4 was Rs.10,000 per marla. The finding of the learned trial Court under issue No.1 is not sustainable, the same is hereby set aside. The price of the land shall be assessed at Rs.10,000 per marla. Issue No.1 is decided accordingly.

7. We have given serious consideration to the plea of the appellants that by reason of acquisition of land in dispute their remaining land of 14 kanals has been injuriously affected inasmuch as its value has been diminished due to construction of grid station which is a permanent and continuous source of nuisance. There is no doubt that no person would offer normal market price of land which is just adjacent to a grid station due to its nuisance and on account of constant insecurity due to sensitive nature of electric appliances installed in the grid station, which could at any time be cause of damage. The value of the remaining land of 14 kanals of the appellants has been certainly diminished. Under section 23 of the Land Acquisition Act, this actor is also to be taken into account while assessing r the quantum of compensation to be awarded to the owners. This aspect of the case has not received consideration either by the Collector or the learned trial Court. Learned counsel for the respondent firstly resisted the claim of the appellants on this account maintaining that there could be no depreciation in value of remaining land of the appellants due to construction of grid station. Alternatively it was argued that if at all any compensation is to be granted to the appellants on this score the value of their remaining land has not been diminished more than 20%. In any case keeping in view all the attending circumstances we have come to the conclusion that the value of the remaining land of the appellants measuring 14 kanals has suffered a depreciation to the extent of 30%. The appellants are entitled to the compensation accordingly. We, therefore, hold that the appellants are entitled to an amount of Rs.8,40,000 on this account.

8. In the result both the appeals are partly allowed. The appellants are hereby granted a decree for an amount of Rs.22,00,000 as price of the land acquired at the rate of Rs.10,000 per marla plus Rs.8,40,000 as compensation due to depreciation in value of their remaining land 14 kanals plus an amount of Rs.4,56,000 on account of 15% compulsory . acquisition charges totaling Rs.34,96,

000. Compound interest at the rate of 8% per annum under section 28 of the Land Acquisition Act on the amount of Rs.27,29,075.15 being the amount in excess of the amount declared in the award shall also be paid to the appellants from 6‑1‑1981 till the payment of excess amount in Court. A.A./J‑29/L Appeals partly allowed.