This appeal under Section 6(3) of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act. 1956, is directed against the Award dated 11.6.2002 passed by Additional District. Judge, Lahore, whereby the petition of respondent Hameed Ashfaq/owner, for the enhancement of compensation already fixed and for the determination of fair rent of his building/premises in possession of the appellants for the last more than 30 years, has been partly allowed and it has been held that the respondent is entitled to compensation at the rate of Rs, 4000/- per month with effect from 12.5.1996 and a periodical increase at the rate of 25%, after every three years with effect from 12.5.1996 with a direction to the appellants to pay the balance of the rent/compensation from the said date onward after deducting Rs, 2000/- per month having been already paid to the respondent as compensation, within three months.
1. I have heard the learned counsel for the parties at this preadmission stage and also seen the record.
2. The relevant facts are that the respondent filed the aforesaid petition alleging that property No, NEX-II/33-S-18, Shalimar Town Lahore, known as Government Qadria Primary School was owned by his late father, he being one of the landlords, is authorized to collect the rent from the respondents (the present appellants), his father was running a primary school named Qadria Primary School, which was set up in the aforesaid premises/building consisting 5 of rooms and a Courtyard over an area measuring 1 kanal 13 marlas, in the year 1972 the school was taken over/nationalized and its compensation, under the aforesaid Act was fixed at Rs, 500/- per month, the District Judge/Arbitrator, vide his order dated 28.6.1982 enhanced the rent to Rs, 2000/- per month. It has also been brought to my notice that the appellants appeal in this regard (FAO No, 173 of 1982) was dismissed in limine, by this Court on 27.11.1982. This respondent further alleged that thereafter he had been filing various representations to the appellants for the enhancement of rent from Rs, 2000/- to Rs, 6000/- per month and also for the award of compensation Rs, 2,00,000/- as damage to the property but of no avail. The respondent also alleged default in the payment of rent from 1990 onward. Hence the aforesaid petition with the prayer that rent be enhanced/refixed to Rs, 6000/-per month with effect from January 1990 till date and also asked for the award of Rs, 2,00,000/- as compensation for the damage to the property.
3. The petition was contested by the appellants, through written statement. The learned trial Court after framing the necessary issues recorded the evidence produced by the parties and after hearing the arguments of learned counsel for the parties, decided Issue No, 7 of the entitlement for increase of rent in favour of respondent, Issue No, 8 of entitlement for the award of an amount of Rs, 2,00,000/- as compensation for the damage to the property, against respondent and Issues Nos, 1 to 6 were decided against the appellants.
4. PW-1 Manzoor Ahmad stated that minimum rent of such like buildings in the area, would be approximately Rs, 10,000/- to Rs, 12,000/- per month. PW-2 Muhammad Jameel also stated that the rent of such like building in the area would be Rs, 10,000/- to Rs, 12,000/-. The respondent himself appeared as PW-3 and stated that the minimum rent of the building should be fixed at Rs, 6,000/- per month. The appellants witnesses RW-1 and RW-2 are school Teachers, employed in the said school. They state that the rent of Rs, 2000/- per month already being paid was appropriate rent.
They however, did not say anything in regard to the market rate of rent or the rent being fetched by such like buildings in the vicinity. RW-3 Nayyar Sultana also dd not anything about the market rate of rent.
5. The learned trial Court on the strength of the evidence produced by the parties, accepted the respondent's petition only partly and determined the fair rent of the building to be Rs, 4000/- and not Rs, 6,000/- per month as demanded by the respondent, on the ground that the building was in dilapidated condition and reliance was placed on Sher Zaman Vs. Home Department, etc. (1996 Appeal Cases 339) wherein it was held that the owner of the building is entitled to refixation of the compensation, on the basis of the current market rent of the property and that the landlord is entitled to get periodical increase in rent/compensation at the rate of 25% after every three years.
It may also be mentioned here that the formula suggest in clause (e) of sub-section (1) and in sub-section (2) of Section 6 of the above Act of the determination of compensation taking into account the initial cost of construction of the building are no more relevant, as these provisions were declared to be repugnant to the injunction of Islam, by the Shariat Appellate Bench of Hon'ble Supreme Court of Pakistan in Province o, the Punjab Vs. Amin Jan Naeem and others. (PLD 1994 Supreme Court 141) because the same did not provide the compensation based on the current market rate and did not provide for a periodical increase in the monthly rent or compensation. The compensation, therefore, has to be determined on the basis of fair/market rent. The learned counsel for the appellants has not been able to show that the determination of rent at the rate of Rs, 4000/- per month by the learned trial Court is more than market rent and is not fair. The compensation at the rate of Rs, 2000/- per month was fixed by the learned District Judge in the year 1982 and there had been no increase since then and the learned trial Court, therefore, correctly held that the compensation fixed in the year 1982 could not be held to be fair in the year 1998 when the present petition was filed by the respondent. The determination of compensation/rent at the rate of Rs, 4000/- per month by the learned trial Court with effect from 12.5.1996 with an increase of 25% after every three years is, therefore, far although lesser than the rent which can be fetched by this building in the open market as is evident from the evidence, though oral, produced by the respondent, as there is nothing to rebut the same, from the appellants side.