P L D 1965 (W (PLP)

7. Before dealing with the merits of the case, it may be mentioned that by Ordinance XXVI of 1948, provisions were made for controlling the transfer and market value of certain lands within the limits of the Capital of the Federation. By section 3 of this Ordinance, no person can transfer any land lying within the specified area except with the prior approval of the Central Government in writing and any transfer made in contravention of this section was void. By section 4, it was provided that the market value of any land lying within the specified area shall, for the purpose of determining the amount of compensation to be awarded at any time would be on the basis of the lower market rate on 31‑3‑194.8 or on the date of the acquisition. This important provision of law is reproduced below:

"(4) Market value in case of acquisition:‑Notwithstanding anything to the contrary in any other enactment for the time being in force, the market value of any land lying within the specified area shall, for the purposes of determining the amount of compensation to be awarded therefore, if such land is acquired after the 31st March 1948, in pursuance of a notification under subsection (1) of section 4 of the Land Acquisition Act, 1894, or by a notice under subsection (3) of section 3 of the Sind (Requisition of Land) Act, 1947, be the lower market value of the land determined with reference to its market value, (a) on the 31st March 1948, and (b) on the date of the notification or, as the case may be, of the notice aforesaid." In order to avoid the application of this provision of law at first the claimants disputed that their lands were situated within the area mentioned in the Schedule of the above‑mentioned Ordinance. Later on, their counsel by statement dated 18th May 1959, conceded that the area under reference fell within the boundaries mentioned in the said Ordinance. It will be further noticed that during the pendency of the reference the claimants challenged the validity of the above‑mentioned Ordinance by an application dated 28th November 1955, on certain legal grounds. But during the course of the arguments, Mr. Dingomal, the learned Advocate for the claimants conceded that it was not possible for him to challenge the validity of this Ordinance and dropped the objection raised in the application.

8. It will thus be noticed that under the above‑mentioned provisions of law the land in dispute having been notified for acquisition in the year 1952, the lower rate of the market value prevalent on the date of the acquisition and 31st March 1949, is to be awarded. The most important question for consideration in these references is what is the lower rate prevalent on either of the dates namely the date of the notification of the acquisition and 31st March 1948. In the written statements the claimants have claimed compensation at the rate of Rs. 5 per sq. yard. In Reference No. 401/1961 and in the rest of the two references they have claimed compensation at the rate between Rs. 3 and Rs. 5 per‑sq. yard. Admittedly, no private sale transaction took place in Deh Safooran nor has the Government disposed of any land in this Deh during the last five years before the notification of the acquisition. In support of their claims the claimants, therefore, have relied on certain sales which took place in Deh Mehran, which is admittedly adjacent to this Deh. By sale‑deed dated 10th April 1952, (Exh. 15‑B), Essa Jaffar and others sold some land out of Survey No. 59 for Rs. 5,500 per acre. Similarly, by sale‑deed (Exh. 15/C), dated 30th October 1952, Essa Jaffar and others sold to Fahmida Ashraf 500 sq. yards out of Survey No. 59 for Rs. 1,

250. By sale‑deed dated 7th June 1952, (Exh. 15‑D), Allah Rakhia and others sold, 89,41.9 sq. yards of land out of Survey Nos. 164 and 165 to Surti Muslim Co‑operative Housing Society Ltd. at Re. 1 (Rupee one) per sq. yard. By another sale‑deed dated 12th April 1952; (Exh. 15‑E) Haji Allah Rakhia sold to Essa Jaffar 3.30 acres of agricultural land out of Survey No. 59 for Rs. 13,000 (Rupees thirteen thousand). The rest of the evidence produced by the claimants is oral. According to Mr. Gabole (Exh. 17) the lands in dispute were eminently suitable for industrial purposes because these were adjacent to the highway and of their proximity to the railway line. He further stated that the land acquired is suitable for building houses and shops since Air France Hotel has been built near his land and it is also suitable for Building Housing Societies as several housing societies have sprung up opposite this land, like Drigh Colony and Drigh Road Colony, etc. He further stated that near about this land (about 10 yards) K. L. M. and B. O. A. C. have built their hotels. They are built on his lands not involved in this case. But the witness has not given the‑ rate at which these lands were sold to or acquired for these companies. He further stated that he received offers at Rs. 2 to Rs. 3 per sq. yard depending upon the situation and location of the land from private parties but did not give any detail. He' admitted that they were handicapped by the Government in asmuch as sale of their land was not allowed without permission, and as such the true value of their property could not be given. He admitted that the price already offered was always low in view of the restrictions. To a question put by the Court as to what was the price of the land immediately before 1948, he was unable to give any answer from memory. This witness admitted that the lands were `Barani' and were cultivated by them whenever there was enough rain for the purpose. He also alleged that the lands were let out for grazing purposes and used to obtain enough money out of that. They. either cut the grass which grew naturally on the land on rains and sold it in the bazar and realised about Rs. 5,000 (Rupees five thousand) per year. In addition to this they allowed the cattle owners to graze their cattle over the land and charged 0‑2‑0 per head for a goat and 0‑8‑0 per head for a cow or buffalo and in this way used to earn an income of about Rs. 10,000 (Rupees ten thousand) per year. According to the witness they used to get from the produce of the gum from their land about Rs. 1,500 to Rs. 2,000 every alternate year. He further alleged that his father had built bunds on the land to retain water and spent about Rs. 30,

000. This witness further stated that there were countless trees, sort of . a jungle, standing over the land in question and assessed its value at Rs. 50,000 (Rupees fifty thousand). According to him the trees grown on the land were sold out either for the purposes of charcoal or for use as fuel which fetched about Rs. 3,000 per acre. In cross‑examination to Mr. Muhammad Ali Saeed, this witness was unable to produce any documentary evidence in support of his claim. He was unable to produce any land revenue receipt. He was unable to say if the suburban township colonies started in the area after 1956, or before that. He also failed to give the year in which the lands were acquired by the Government for K. L. M. and B. O. A. C. terminal hotels; nor the rate at which the compensation was paid to him. Muhammad Ibrahim (Exh. 18) Supervising Tapedar by referring to the Mutation Register deposed that on 22‑12‑1952, 0‑4‑0 share in Survey Nos. 185 and 186 (i.e. 1 acre and 41 ghuntas) in Deh Safooran was sold for Rs. 30,000 by S. Mushtaq Ali Ishtiaq Ahmad to Ashraf Mahmoodi; the mutation took place on the same date. He further deposed that on 20‑10‑52, Essa Jaffar sold 2/1/5 share in the same survey numbers to Syed Mushtaq Ali, for Rs.25,

000. According to his ‑ statement the rate of the first sale will be about Rs. 25,000 to Rs. 26,000 per acre and the second sale by Essa Jaffar will be at the rate of about Rs. 27,000 to Rs. 28,000 per acre. He, however, admitted in cross‑examination that Deh Mehran is adjacent to Deh Safooran and Deh Sharafi is about 12 miles or 2 miles away from Deh Safooran. Gul Muhammad (Exh. 19) one of the claimants, stated that immediately after partition they were offered Rs. 2 to Rs. 5 per sq. yard and Rs. 5 was offered for the land which was either adjacent or nearabout the main roads. He supported his brother in respect of the income from the grazing of the land and sale of the grass and trees, but the figures given by him were different from those given by his brother. He admitted in cross‑examination that there was no documentary evidence to prove about the sale of the grass or the trees or the offers received by them. He further admitted that they could not accept the offers and sell the land at the rate of Rs. 2 to Rs. 5 per sq. yard because the Government had placed a bar on the transfer of the land in dispute. Wadero Laiq Ali (Exh. 20) an Estate Broker since 1935 deposed that the rates of land in Deb Safooran were about Rs. 4 per sq. yard for the land near or nearabout the road and then donwards up to Rs. 1‑8‑0 per sq. yard for the land which was farthest away from the road. He admitted in cross‑examination that no land was sold through him in Deh Safooran. He further admitted in cross‑examination that no sale, whatsoever, has taken place of the lands in Deh Sharafi, Mehran and Kokowari through him at any time.

9. In support of the Government Nisar Ahmad Moghul, Reader, Deputy Collector's Office was examined as a witness. He stated that Deh Safooran is about 9‑10 miles from the G. P. O., Karachi and on one side is Deh Mehran and on the other side is Deh Okewari. According to him he did not see any trees standing on the lands in the above three Delis except small shrubs. The witness stated that the land acquired in Deh Safooran is being utilized for the purpose of Karachi Airport, and besides the Airline hotels and P. I. A. House there are no commercial or residential houses in the land in question. The witness further stated that the land in the proceedings in Deh Safooran was the subject‑matter of requisition in the year 1945 by order No. Requisition/57/1452 of 1945 dated 20‑2‑1945 vide Exh. 21/1. According to the Government record the possession of the land in dispute was with the Military authorities and its possession was taken from them vide fetter No. AV‑10(21)/52, dated 16‑6‑1952, Exh. 21/2. He further stated that he had seen the record for the years 1945 onwards which showed that no sale took place in Deh Safooran from 1945 up to 31st March 1948, and only showed two or three sales in Deh Okewari. According to the extract Exh. 21/2, the rates of these sales were between Rs. 560 to Rs. 600 per acre. He further produced extract from the Revenue Record in Deh Mehran Exhs. 21/4, 21/5 and 21/6, and the price of the land in these transactions came to Rs. 638, Rs. 700, Rs. 648, Rs. 900 and Rs. 800 respectively per acre all these sales took place in the year 1946. He further produced a certified copy of the order Exh.21/7 which showed that the Government had granted land in Deh Mehran in 1951 at the rate of Rs. 2,000 per acre. To a question put in cross‑examination, he stated that he was, not aware that the grants made by the Government were cancelled later on. This is the gist of the evidence produced by the parties.

10. So far as the oral evidence produced by .the respondents is concerned, it is most unreliable. There is no reliable evidence to establish that there existed any trees or bunds on the land in dispute or that the grass grown on the land in dispute yielded considerable amount per year as income. The oral evidence about the offers also is most unreliable and no importance can be attached to it.

11. Thus, the only evidence worth consideration is the documentary evidence produced by the parties. Ordinarily an owner of land is entitled to the value to himself of the property in its actual condition at the time of expropriation with all its then existing advantages and with all its future possibilities excluding only any advantages due to the carrying out of the scheme for the purposes for which the property is being acquired. This principle was enunciated by the Judicial Committee in Atmaram Bhagwant Ghadgay v. Collector of Nagpur (AIR 1929 P C 92). But as already discussed in view of the provisions of Ordinance No. XXVI of 1948, it cannot be applied with full force in these cases. Under section 4 of the Ordinance the claimants are only entitled to the lowest market value of the land determined with reference to its market value (a) on the 31st March 1948, and (b) on the date of the notification. Admittedly, no sales took place in Deh Safooran from 1945 up to 31st March 1948, or up to February 1952. Some sales took place between the years 1946 and 1947 in Deh Mehran an adjoining village vide Exhs. 21/4, 21/5 and 21/6. The maximum price at which sale was effected in this village is about Rs. 900 per acre, but this cannot be taken as a guide to fix the value of the land in dispute on 31st March 1948. It cannot be disputed that the value of the land had considerably increased in the suburb of Karachi after partition. In the absence of any actual sale in March 1948, it will be necessary to consider the sales which took place in the vicinity of the land in dispute up to the date of the acquisition. In J. Misc. Application No. 7 of 1953, Ahmad Ali, Senior Surveyor of the Land Acquisition and Valuation Department admitted in his affidavit dated 22nd August 1955 filed on behalf of the Collector teat Government had sold land in Deh Mehran which is adjacent to Deh Safooran to Model Mohajir Colony at Rs. 2,000 (Rupees two thousand) per acre. He further admitted that Government had sold in about 1951 to Hyderabad Relief & Rehabilitation Trust Land at Rs. 2,500 (Rupees two thousand five hundred) per acre in Deh Sharafi which is not far from Deh Safooran. On this evidence it can safely be said that in the year 1951 the market value of similar lands were between Rs. 2,000 to Rs. 2,500 per acre. After careful consideration of the evidence produced by the parties I am satisfied that the claimants' case that the market value of the land in 1948 or when the property in dispute was acquired was between Rs. 3 to Rs. 5 has no foundation. In my view, therefore, the price fixed by the Collector in Reference No. 401/1961 at Rs. 2,500 (Rupees two thousand five hundred) per acre is most reasonable and cannot be considered to be inconsistent to the principle on which it has to be valued. In this connection it will be convenient here to reproduce the observation of the learned Collector regarding the valuation of the land in dispute, which is as under:‑- "The land proposed to be acquired is an agricultural land. It is a barani land depending on rain. According to the Mukhtiarkar's report, it has not been cultivated in Her Kher during the last 15 years. No private sale transaction has taken place in this deh nor has the Government disposed of any land during the last five years. Thus there is no sufficient data which can be relied upon for arriving at the value of the land in question. In Deh Mehran which is quite adjacent to this deh, Government have disposed of some agricultural land at the rate of Rs.2,000 per acre. About a year ago, the Hyderabad Relief and Rehabilitation Trust entered into an agreement to purchase agricultural land in Deh Sharafi which is not far away from the land under reference, at about Rs. 2,500 per acre. Taking into consideration all these factors and having regard to the situation of the land in question, I think it would be fair to value the land at Rs.2,500 per acre and I award accordingly." In my opinion, the conclusion of the learned Collector in fixing the value of Rs. 2,500 per acre in respect of the land which is the subject‑matter of the dispute in Reference No. 401/1961 is fully supported from the material placed on the record and no exception can be taken to it. Mr. Dingomal, the learned counsel for the claimants referred me to a report of Mukhtiarkar dated 22nd January 1952, (Exh. 16/A) in which he considered the rate of Rs. 3,000 per acre as reasonable for awarding compensation. But in. doing so the officer concerned disregarded the provisions of section 4 of the said Ordinance and therefore, no importance can be attached to his opinion. The learned counsel further referred to certain sales that took place in Deh Safooran in 1952 but these have no material bearing as they were effected much after the lands in dispute were notified for acquisition. In the circumstances, I do not find any ground to take a different view of the market value assessed by the Collector of Karachi.

12. It will, however, be noticed that the learned Collector did not allow any interest for the land in dispute from the date of the notification under section 9 of the Land Acquisition Act on the ground that uptil then the possession of the land had not been taken over. On the evidence produced on the record it cannot be considered as valid ground. There is ample evidence on the record to show that the possession of the land was taken over by the Government immediately after the acquisition notices were issued and, therefore, the owners of the land are entitled to claim interest from the date of the notification under section 9 of the Land Acquisition Act, namely, from 26th February 1952.

13. This brings me to the consideration of the remaining two references. It will be noticed that the Collector awarded compensation of the lands which are the subject‑matter of dispute in Reference No. 402/1961 and Reference No. 403/1961 at the rate of Rs. 2,000 (Rupees two thousand per acre). While arriving at this value the learned Collector observed as under: "The area in question has been notified for acquisition in the year 1952. Hence determination of compensation for it is governed by the provisions of Government Ordinance No. XXVI of 1948, under which lower rate prevalent on either of these dates, viz. date of notification, i.e. 11th November 1952, and (ii) 31st March 1948, is to be awarded. Obviously, the rates prevalent on the former date will be higher than prevalent on the later date and, therefore, they are accordingly disregarded. The award is, therefore, to be based on the 31st March 1948. No sale of Government or private agricultural or non agricultural land, has taken place in this Deh, for the last six years and which can form a guide to arrive at the market price. Recently, land was acquired from Survey No. 154, Deh Safooran on behalf of the Postal Authorities and the compensation. was awarded at the rate of Rs. 2,500 per acre. This Survey number is situated on the main Karachi Hyderabad Road and thus possesses much importance in situation, etc., than the area acquired in the present case. Some of the area involved in the present case, faces Karachi Hyderabad Road no doubt, but most of it falls in the rear side. I, therefore, think that an average rate of Rs. 2,000 per acre for the area coming under acquisition would be reasonable. To this, 15% compulsory acquisition charges as admissible under the Act will be added. Further, as the land is already entered upon and is in possession of the Civil Aviation Department, interest at the rate of six per cent.‑per annum from 11th November 1952, (the date of notification under section 4) up to the date of payment, is also hereby allowed to the owners. Compensation awarded to each individual' shown id the accompanying statement." Thus it will be noted that the Collector while fixing the value of the land in question has relied on the market value of the land assessed in respect of Survey No. 154 of Deh Safooran. But he has reduced it to Rs. 2,000 (Rupees two thousand) per acre in view of the fact that the above‑mentioned Survey number possesses much importance in situation than those which are the subject‑matter of the dispute in the other two cases. The reasoning of the Collector has not impressed me because in the former case this consideration did not weigh with him. In fact the front portion of Survey No. 154 is very small as compared to the rear portion. In these cases also admittedly according to the Collector "some of the area involved in the present case, faces Karachi‑Hyderabad Road no doubt, but most of it, falls in the rear side." It is, therefore, difficult to appreciate why a different yard stick should be adopted for assessing the market value of these lands. The Collector on his own reasoning committed an error in reducing the assessment of the market value from Rs. 2,500 to Rs. 2,000 per acre, for these lands. He should have been con sistent and valued the lands in these two references also for fixing the market value at the rate of Rs. 2,500 (Rupees two thousand five hundred) per acre. The learned Collector in Reference No. 401/ 1961 has admitted that in Deh Sharafi which is not far away from the land under reference, about a year ago, the Hyderabad Relief and Rehabilitation Trust entered into an agreement to purchase agricultural land at about Rs. 2,500 (Rupees two thousand five hundred) per acre which fact is also supported by the affidavit of Mr. Ahmad Ali referred earlier. There is no other evidence of any sale of the lands in the village in question or in other adjoining village in the year 1948 or in 1951. Therefore, this would be the lower market rate of the land for purposes of determining the value of the land in dispute according to the formulae laid down in section 4 of Ordinance No. XXVI of 1948. Mr. Dingomal relied on the sales in Deb Safooran in 1952 but much reliance cannot be placed on them because they relate to very small area of land and price fetched for them cannot be taken to be a true indication of the proper price of large plots. Besides there is no evidence that these plots have been put to any beneficial use. It cannot, therefore, be ruled out of consideration that these were not bona fide transactions and as they were entered into at a very high rate they do not reflect the real market value of the lands. At any rate these cannot be considered to be the lower market rate in view of the provision of section 4 of the Ordinance. I would, therefore, hold that the market value of the land fixed by the Collector in References Nos. 402/1961 and 403/1961 is not correct. I will further hold that the market value of these lands must also be assessed at the rate of Rs.2,500 (Rupees two thousand five hundred) per acre.

14. In the light of the above discussion I will answer the issues in the following manner: (1) Issue No. 1.‑Award is valid in Reference No. 401/1961. In References Nos. 402/1961 and 403/1961 it is modified. (2) Issue No. 2.‑Claimants in Reference No. 401/1961 are entitled to interest from 26‑2‑1952. (3) Issue No. 3.‑‑Negative. (4) Issues Nos. 4 and 5.‑See below In view of my finding on the above issues I hold that the compensation awarded in Reference No.401/1961 is adequate but would award interest to the claimants from 26th February 1952, till the date of payment. I would, however, enhance the market value of the land in References Nos. 402/1961 and 403/1961 under section 23 (1) of the Act from Rs. 2,000 (Rupees two thousand) to Rs.2,500 (Rupees two thousand five hundred) per acre over and above the statutory solatium of fifteen per cent under section 23 (2) of the Act.

15. Subject to the above conclusions the three references are answered. In the result the claimants are allowed cost on the enhanced amount awarded to them otherwise the parties will bear their own costs. K.B.A. References answered.