' KARAM ELAHEE CHAUHAN, J.-This order will dispose of two petitions for special leave to appeal bearing Nos. 587/78 and 588/78.
2. The facts of the case are few and simple. The land in dispute was acquired by the Government of. Pakistan for extension of Airport in Lahore. A notification under section 4 of the Land Acquisition Act 1 of 1894 (hereinafter called the Act) was issued on 1-5-1968. The award with regard to the compensation to he paid to the land owners namely the respondents herein was announced on 31-12-1968 by the Collector who fixed, the same at the rate of Rs, 2,000 per kanal.
3. The land owners/respondents filed an application under section 18 of the Act for referring the matter to the District Court. The said Court (actually the Administrative Civil Judge, Lahore, exercising the powers of the District Court) then rendered its decision on 25-5-1970, whereby he dismissed the aforesaid reference and mainatained the ratio of compensation fixed by the Collector.
4. The land owners concerned then filed two regular first appeals being R. F. A. No, 88/70 and R. F. A.
No, 96/70 which were disposed of by a Division Bench of the Lahore High Court by means of a common judgment and decree dated 12-9-1978. The High Court held that the land of the appellants in R. F. A. No, 88/70 was worth Rs, 5,756 per kanal but as the said owners had themselves claimed compensation at the rate of Rs, 3,600 per kanal in their reference application therefore they should be paid compensation at that rate. They further held that the petition of the land owners in R. F. A. No, 96/70 was similar and though their land was also worth the same value but as they claimed compensation at the rate of Rs, 4,000 per kanal in their reference application therefore the same should be paid to them C. P. 587/78 has arisen from R. F. A. No, 88/70 and C. P. 588/78 has arisen from R. F. A. No, 96/70. At this place it may be mentioned that the rate of compensation had been fixed by the Collector and the District Court by considering the land in dispute as agricultural land. The High Court, however, did not agree with this classifiction of land and found that it also had the potentiality of building site inasmuch as it was quite near and as a matter of fact adjacent to the Airport, and that at a distance of 2 furlongs from it there actually existed a residential colony by the name of Nishat Colony. The learned Judges of the High Court referred to various transactions mutations of sale of land in that village and the locality, which pertained both to the agricultural land as well as potential building sites. After making the relevant comparison the High Court then struck a balance fixed the price of the land at the rate of Rs, 5,765 per kanal but awarded compensation at reduced rates as mentioned above namely Rs, 3,600 and Rs, 4,000 per kanal in the relevant cases respectively. The petitioner seek leave to appeal against the aforesaid judgment of the High Court.
5. Learned counsel for the petitioners has not been able to point out any mistake in the appreciation of the aforesaid mutations and other evidence and circumstances of the case and his only argument was that the land being quite close to the Airport and falling within what he called the "funnel area"), there existed a prohibition of raising any construction thereon and therefore from this point of view the land could not have been considered as having any potential of its ever being used for building purposes or as building site and as such should have been assessed purely as an agricultural land. The actual objection on the subject is contained in grounds Nos. (d) and (e) of these petitions. They read as follows:- "(d) That the Lahore Airport has been used by the P. A.F./Civil Aviation, since its inception by virtue of Works of Defence Act, 1903, as amended in 1961, the building activities in the proximity of the Airport are restricted. The land in dispute, acquired since 1968, has fallen in the funnel area of the Airport, it was used for agricultural purposes and could not be converted for residential purposes, under the said Act.
(e) That according to section (4) of the said Ordinance (No, XXXIV of 1961) no building, wall, bank or any other construction, above the ground level can be erected on lands in the funnel area without the approval of the General Officer Commanding of the Division which can be disallowed on security Administrative reason or if approval is accorded, it will be subject to conditions as may be prescribed by him. The land so acquired in 1968, which fell in funnel area, was not so free from such condition/encumbrance.
The value of the land could not, therefore, be reviewed at -par with the land situated in Nishat Colony, as discussed."
6. A perusal of the above grounds will show that they do not indicate an irretrievable prohibition which would deprive a land of its potentials as a building site. These potentials according to the above pleas continue with a rider that for raising constructions permission may have to be obtained which could be granted even on terms, etc. Apart from the case as put by the petitioners themselves in the above pleadings, even otherwise this is so deducible from section 7-A of the Works of Defence Act VII of 1903, as added by the Works of Defence (Amendment) Ordinance XXXIV of 1961. There are indications to this effect in other sections of the Act as well. The High Court overruled the aforesaid plea of the petitioners on the ground that they had led no evidence by producing and document, notification or declaration of any competent authority in support of their contention. However, during the course of hearing before as the learned counsel produced notification No, 711/62, published in the Gazette of Pakistan, dated 11-5-1962 at page 119, which so far as relevant reads as follows:- "Whereas it appears to the Central Government that it is necessary to impose restrictions upon the use and enjoyment of land in the vicinity works of defence specified in the schedule below and situated in the districts mentioned in the said Schedule; NOW, THEREFORE, in exercise of the powers conferred by section 3 of the Works of Defence Act, 1903 (VII of 1903), the Central Government is pleased to declare that following restrictions shall attach to the land situated in the vicinity of such works, namely:-
(a) no variation shall be made in the ground level, and no building, wall or other construction above the ground level and no obstruction or ditch shall be permitted in the clearance Area;
(b) no building, wall, bank or other construction above the ground level shall be maintained, erected, added to or altered in the Funnel Area, Area of Restricted height, Transition Surface, Inner Central Surface and Outer Horizontal Surface, otherwise than with the written approval of the General Officer Commanding the Division, and on such conditions as he may prescribe.
' It is further declared that sketch plan in respect of such works of defence on a scale of six inches to a mile may be inspected in the office of the Collector of the district in which the respective work is situated. {{TABLE}} SCHEDULE Sl. No, Division/Group District Description of work of defence 1.
2. ...............
3.
4.
5.
6. P. A. F. Lahore Station Lahore Lahore Airfield.
7. Learned counsel for the petitioners conceded that this notification was not produced in any of the Courts below and nor any evidence in the form of any document plan or sketch was placed on record to identify it with the land in dispute. In the absence of any evidence of the aforesaid nature as argued by the learned counsel for the landowners (respondents) (caveators) it is difficult to connect it with the present land. It may be mentioned that the word "funnel area" is defined in section 2(1) of Act VII of 1903 which states that "Funnel Area" means Air space clearance at each end of a runway beginning at the end of the area mentioned in clause (k)(v) at the elevation of the end of runway and rising on a slop of 1 in 50 (for every 50 feet horizontal one foot vertical, known as glide) angle for a horizontal distance of 3,033 yards measured along and symmetrical about the extended centre line of runway, the width of the Funnel Area at the end of the distance mentioned in clause (k)(v) being 707 yards flaring up to 1,333 yards at the end". (The plea raised before us is only regarding this type of area and no other). When such a notification is issued then according to the aforesaid Act since it purports to deprive a person of. The potential use of his land, provision exists to compensate the concerned landowners in that respect. It has not been pleaded nor shown that any compensation was ever assessed or paid under that Act to the present respondents. Again the notification is with regard to land "in the vicinity" of Lahore Airfield. The word "vicinity" is very wide and that is why that its scope was circumscribed by describing the affected land by a sketch map and relevant boundaries. As no proof exists to identify this land as "funnel area the plea fails on factual plane: We hold accordingly.
8. However, to deal with the legal aspect of the matter we have attended to the above notification in general and in our opinion it does not improve or change the situation in favour of the petitioners, because the mere fact that there existed a bar of raising construction on any land without obtaining the requisite permission of the appropriate, authority does not mean that the land otherwise has no potential value except as an agricultural land. In Candars Rapida Manufacturing & Power Company v. Lacoste and other (1) their Lordships of the Privy Council observed that (in such cases) the possibility of removal of restrictions can also be properly taken into consideration just as we have done in this case as our present judgment will show. In this respect they\ approved An Arbitration between Lucas and The Chesterfield Gas and Water Board
(2) and again confirmed the same view in Corrie and another v. MacDermott (3). In Collector of Chingleput v. Krishnaveni Ammal (4), it was observed on page 192 Column 2 that "in determining the burden of the restriction one circumstance to consider is the chance of such a restriction being determined and it may therefore become a relevant subject of inquiry as to by whom the restriction can be determined." We have examined the type of burden which is alleged to be involved in this case and express the view that it was not absolute and retained the propensity of being removed or waived. The very fact that some conditional prohibition (for example in a given case) against construction has been issued would rather show that but for the aforesaid prohibition the land otherwise possessed building site potentiality. In the instant case the notification on which reliance was sought to be placed itself left scope for allowing exemption from its rigour and as such the prohibition being only conditional the possibility of its removal cannot be kept out of consideration.
(1) 1914 A C 569 (P C) (2) (1909) 1 K B 16
(3) 1914 A C 1056 (4) AIR 1933 Mad. 190 ' The land in dispute is within municipal limits of Lahore and that fact by itself is indicative of its already having building potentials much prior to the date of notification under section 4 of the Land Acquisition Act (I of 1894) namely 1-5-1968. The tabulation of transactions as made by the High Court shows that sales for residential purposes in this village were taking place inasmuch as Mutations Nos. 560 and 561 took place on 9-12-1967 and mutation No, 545 on 16-1-1968. These sales no doubt were of small areas and their rates and prices as much were not adopted but they showed at least one thing and that was that despite the aforesaid prohibition the land did retain its potentials for building purposes as held by us above. Similarly the very act of acquisition is also proof of the fact that the land had the, potentials of being put to construction (may be for purposes of the Airport' itself) and High Court in the circumstances was perfectly justified in fixing a price which struck a balance between the status of the land as agricultural land and as purely potential building site, and in our opinion, the relevant price ultimately granted sufficiently covers the depreciation, if any, due to the aforesaid burden. From the details of the case given above it should be noticed that the land owners have been given lesser rate than the one which the High Court actually determined. The department or the acquiring authorities in this respect have thus gained and have not lost anything when compensation has not been fixed at the rate of actual market price of land, and as found by us above adopts such ultimate figure which in the overall context can be considered as fairly justified even from the point of view of the suggested depreciation which we have already held has not been established on record on factual plane. There is neither any omission nor misreading of the evidence. The rates fixed are in accordance with the facts and the circumstances of the case and the material placed on record and the law relevant to cases of this type. The case does not involve violation of any principle of law and is not fit for any interference by this Court both on factual as well as legal plane.
9. The resit is that these petitions have no merit and are dismissed.