SYED ZAHID HUSSAIN, J.--- On petition under section 6 of the Punjab Requisitioning of Immovable Property (Temporary Power) Act, 1956 made by the respondent, the learned Additional District Judge, Lahore has vide judgment (Award as contemplated by law) dated 12-5-2004 determined the compensation of the requisitioned property which has been assailed through this appeal by the Provincial Government.
2. It is stated by the learned Assistant Advocate-General, Punjab and not disputed by the learned counsel for the respondent that since June, 2005 the property in dispute has been vacated. Thus, the controversy at present is only in respect of the past period of compensation. According to the learned Assistant Advocate-General Punjab, such compensation could only be awarded up to three years preceding the filing of petition whereas the learned Additional District Judge, Lahore has granted the compensation at the revised rates w.e.f. 6-3-1978 i.e. Date of requisition. Reliance is placed upon Ashfaq-ur-Rehman's v.` Chaudhri Muhammad Afzal PLD 1968 SC 230. It is contended that even the petition filed by the respondent was time-barred who had been accepting Rs.100 per month as compensation. He has made reference to Province of the Punjab v. Amin Jan Naeem and 4 others PLD 1994 SC 141 to contend that since provisions of section 7 of the Act as to interest have been declared as repugnant to Injunctions of Islam and Sunna, the order of Additional District Judge is illegal. The learned counsel for the respondent has supported the impugned judgment.
3. The premises were occupied by a school known as Government Rubab Girls Primary School, Aziz Colony, Wandala Road, Shandra, Lahore since, 1973 which was then requisitioned for this purpose vide order, dated 6-3-1978. The compensation for its use and occupation paid to the respondent was Rs. 100 per month. Though the said compensation used to be received by the respondent yet his case is that he continued requesting for fixation of fair compensation which remained unheeded and ultimately filed petition under section 6 of the Act on 13-10-1998. The learned Additional District Judge has after trial, recording evidence and hearing the parties determined the compensation at the rate of Rs.500 per month for the period commencing from 6-3-1978 to 9-9- 2000 and from 10-9-2000 till handing over of possession at the rate of Rs.2,000 per month. The compensation so fixed has been ordered to be paid with interest. The rate and quantum of compensation assessed and determined by the learned Additional District Judge in the light of the evidence that came before him, cannot be regarded either unreasonable, unjustified or exorbitant.
His appraisal and appreciation of the evidence does not suffer from any illegality.
4. The only issue that emerges is about the period for which the compensation at the rate of Rs.500 is to be paid and the direction about the payment of interest. The reliance of the learned Assistant Advocate-General, Punjab on Ashfaq-ur-Rehman's case (supra) to contend that such compensation could be granted at the most for a period of three years preceding the filing of petition before the Court is inapt in view of the observations in Government of the Punjab through Secretary, Education, Lahore v. Shahida Begum 1994 SCM R 1488 wherein it was noted that "there is a lot of difference in payment of rent by tenant and payment of compensation by the Requisitioning Authority. The Authority did not at any stage apply its mind to the present controversy or the assessm ent of the compensation as required by Rules 8 and 9. Therefore, mere payment of rent which was paid prior to requisition cannot be treated as compensation after the requisition for the use and occupation of the property." It may be observed that in the precedent case though the petition was filed in the year 1991 for determination of compensation of the requisitioned property yet the revised compensation was ordered to be paid w.e.f. The year 1977 i.e. The date of requisition of the property. In Province of Punjab v. Mst. Hanifan 1993 M LD 2430 also while making determination of the compensation, the revised compensation was ordered to be paid from the date of requisition of the property and the mere fact that the owner had been receiving the amount lesser than that before filing of the petition was treated as no bar for agitating his right to have fair amount of compensation fixed, assessed and determined. Reference may also be made to Sh. Muhammad Shafi v. The Province of Punjab and another 1986 CLC 593.
There is thus, no fault with the order passed by the Additional District Judge in respect of either making determination and assessm ent of the compensation on the basis of the material that came before him nor his direction qua payment of the enhanced compensation w.e.f. The date of requisition of the property.
5. The contention of the learned Assistant Advocate-General, Punjab as to the delayed approach of the respondent for determination of the compensation of the requisitioned property cannot be given effect to inasmuch as neither such a plea was taken before the lower Court nor was any issue even claimed/framed qua the same. Since in the context of B the controversy the question of limitation is a mixed question of law and fact dependent upon factual assertions, evidence and findings it cannot be countenanced for the first time in the appeal.
6. The contention of the learned Assistant Advocate-General, Punjab however, to the extent of the direction of the learned Additional District Judge qua the payment of interest has substance inasmuch as it had already been held by the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan in the case of Province of the Punjab v. Amin Jan Naeem and 4 others PLD 1994 SC 141 that such provision i.e. Section 7 of the Act was repugnant to Injunctions of Qur'an and Sunnah which judgment still holds the field- The payment of interest, thus, I cannot be upheld.