Through this single judgment both the connected regular first appeals No. 43-1999 and 34-1999 are being decided together as both the appeals are out come of the impugned judgment & decree dated 23.12.1998 passed by the learned Civil Judge 1st Class, Bahawalnagar.
2. The brief facts giving arise to the instant connected appeals are that plaintiffs Maqsood Ahmed etc. Were owners of the land measuring 37 kanals, 17 marlas, situated in Chak Abdullah Utaar, Tehsil Bahawalnagar, fully described in headnote, para No. 1 and prayer clause of the plaint.
Defendants/WAPDA issued notification under Section 4 of the Land Acquisition Act on 13.1.1988 regarding this land for the construction of Chishtian waterlogging drain. That notification became infractuous for want of further proceedings . Another notification dated 3.2.1990 was made.
Defendants took forcible possession of the impugned land constructed drain over it. The proceedings for acquisition of land were not completed and this second notification was also rendered infructuous. The third one was issued on 8.7.1992 which met the same fate and became infructuous for want of further proceedings. Plaintiffs were not paid any compensation and rent.
They were entitled to return of possession of the land in original shape. Private negotiations offering the proposed price and compensation to plaintiffs were rejected by them. 3 kanals, 10 marlas of plaintiffs land were commercial having the rate of Rs. 50,000/- per marla while the remaining 34 kanals, 7 marlas were residential in nature having the price of Rs. 5000/-. Plaintiffs were entitled to the price of Rs. 69,35,000/-. They were further entitled to 15% compensation for forcible possession and 80/0 compound interest till the realization of this amount from the date of possession.
Defendants were asked to submit to plaintiffs rights but they refused to do so. Hence, the plaintiffs filed a suit for possession and mandatory injunction with recovery of Rs. 69,35,000/- + 15% compensation + 8% compound interest in alternative.
3. Defendants appeared before the learned Trial Court and contested the suit by tooth and nail while submitting their written statement. The learned Trial Court out of the divergent pleadings of the parties framed the following issues.
(1) Whether property of the plaintiffs has been duly acquired for drain purposes and price of the property is available with the defendants? OPD.
(2) Whether the plaintiffs have no cause of action? OPD.
(3) Whether the plaintiffs have never objected digging of the drain and he has no locus standi to file this suit? OPD.
(4) Whether the plaintiffs have not filed any objection regarding acquisition of the property and they are estopped to file this suit by their act and conduct? OPD.
(5) Whether the suit is not maintainable in its present form? OPD.
(6) Whether the plaintiffs are entitled for possession of property in dispute and notification dated 13.1.1988, 3.2.1990, 8.2.1992 are illegal and void? OPP.
(7) Whether the plaintiffs have not received any compensation of the property in dispute and the plaintiffs are entitled to possession of the property in dispute? OPP.
(7-A) Whether the plaintiffs are entitled to receive compensation to the tune of Rs. 69,35,000/-from the defendants and they are also entitled to receive 15% interest and 8% compound interest till final payment of compensation? OPP.
(7-B) What is the market value of the suit property if so its effect? OPP.
(8) Relief.
4. Both the parties got recorded their oral as well as documentary evidence. The learned Trial Court after hearing the arguments of both the parties at length decreed the suit of the plaintiffs vide judgment and decree dated 23.12.1998. Feeling aggrieved by the said judgment and decree both the parties have preferred two separate appeals.
5. Learned counsel for the appellants/WAPDA contends that the judgment and decree passed by learned Trial Court is illegal, void, against the law and facts and also based upon surmises and conjectures; there is misreading and non-reading of evidence; that the learned Trial Court has drawn wrong conclusion of oral and documentary evidence on issue No. 3 because it was proved through evidence that the respondents never objected at the time of digging of the drain, actually the land was barren and there was no value of land at the time of digging of the drain; further submits that the price of the land in dispute was fixed as Rs. 1,19,225/- per acre by the Private Negotiation Committee before the institution of the suit on 30.4.1995, the date of delivery of possession declared by the Trial Court is 3.2.1990, whereas the suit filed in the year of 1995 after construction of drain. Learned counsel further argued that the land can be acquired through three legal methods (i) Under Land Acquisition Act 1894 (ii) Punjab Land Acquisition Rules 1983 (i.e)
Standing orders 28 of Land Acquisition Act; further maintained that the land can be acquired in one or two ways (i) By Private Negotiation (ii) By compulsory acquisition under the provision of Land Acquisition Act, 1894 and the land can be acquired Under Land Acquisition Act only in case of failure of private negotiation. The District Collector is legally bound under Punjab Land Acquisition Rules, 1983, Rule 11(IV) that before issuance of notification, he may acquire the land through private negotiation, if he failed, then he may issue the certificate that the private negotiation failed. That according to Section 23 of Punjab Land Acquisition Act, it is incumbent upon the land Acquisition Judge to determine the average price of the period of land through documentary evidence and not to determine it by oral evidence: Further argued that the learned Acquisition Judge himself determined the area of land as 3-kanals, 10 marlas commercial and 34 kanals, 7 marlas residential and admittedly no evidence and detail is mentioned in the suit and evidence on behalf of the respondent that which land is commercial and residential. Learned counsel further argued that the appellant WAPDA submitted C.M. 180-2000 for additional evidence and C.M. 169-2001 for appointment of Local Commission for determination of area utilized by the appellant /WAPDA for the construction of drain alongwith mutations and sale deed of the land of Maqbool Ahmed land owner but no order yet has been passed in the said CMs; further argued that the general powers and duties of WAPDA are enumerated in Section 8 of the WAPDA Act, 1958. The prevention of water logging, reclamation of water logged lands and construction of drainage channels are some of the functions of WAPDA. It can frame sachems for the performance of its statutory functions and it can also acquire land not only under the Land Acquisition Act, but also by purchase of lease, exchange or otherwise clause 9(b) of Sub-section (2) of Section 13 of WAPDA Act +does authorize WAPDA to purchase land by private negotiation Sub-section (3) of Section 13 declares that the acquisition of any land for the WAPDA Authority shall be deemed to be acquisition for public purpose. Lastly learned counsel for the appellant WAPDA argued that the decretal amount has already been deposited in a profitable scheme with the permission of this Court.
6. On the other hand, learned counsel for the respondent in R.F.A. No. 43/1999 and appellant in R.F.A.
No. 34-1999 argued that the learned Trial Court while granting partial relief to the respondents/appellants has committed error of law in as much as the findings on determination of market price are based on misreading of evidence; further maintained that the market price claimed by the respondent was Rs. 69,35,000/- but the learned Acquisition Judge decreed the suit of the respondent for recovery of Rs. 55,61,000/- without considering the documentary evidence of the respondents; further states that respondents in their suit also claimed 8% compound interest and 15% as compulsory charges but the learned Trial Court has also overlooked their said claim.
Learned counsel further argued that the Trial Court has failed to appreciate law and facts in correct perspective while determining the actual market price of the land under acquisition by attending factors relating to potentialities of the land including its location, use, and surroundings blessed with civic amenities.
7. We have heard the learned counsel for the parties and perused the record and have given our utmost muse to the respective arguments advanced by the learned counsel for the parties. Issues Nos. 1, 3, and 7 -A were the vital issues which were argued before this bench. After taking into consideration all the material aspects of the case we are of the considered view that admittedly the WAPDA authorities have taken over the land without following legal steps, necessary for acquisition and complying with the mandatory provisions of law, thus, the fundamental rights of the citizens enshrined in Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan were breached. This act of the WAPDA was highly improper and illegal, therefore, WAPDA cannot compel the owners to accept the compensation according to its on whim and caprice. The amount which the respondents were entitled, should have been the market value, as has been admitted DW.2 Nazir Hussain Girdawar who was the witness of the appellant/WAPPDA. He categorically admitted in his cross-examination that the price of the commercial land in mouza Chandowala was Rs.
50,000/- per maria whereas the rate of the residential property in the said mouza was Rs. 5000/- per maria at that time. The appellant did not make any request before the learned Trial Court for declaring the said PW as hostile and the admission of the said PW reflects that the claim of the respondents Maqbool Ahmed etc. Owners were genuine. The contention of learned counsel for the appellants WAPDA that the learned Acquisition Judge has himself determined the area of land as commercial and residential, has no force and the same is repelled because in paragraph No. 5 of the plaint respondents have clearly mentioned the area of land as 3 Kanals and 10 Marlas Commercial and 34-Kanals,
7. Marlas as residential. It is pertinent to mention here that in paragraph No. 4 of the written statement appellants/WAPDA admitted that 8% compound interest and 15% compulsory charges were being paid to the land owners/ effectees from the date of the possession of the land but the learned Trial Court has not considered this important aspect of the case. The learned Acquisition Judge has also misread the statement of DW.2 while deciding the case, whereas the party would be bound by the evidence of his witnesses as has been laid down in PLD 2007 Supreme Court (AJ&K)
63. Moreover there is also discrimination on the part of the appellants WAPDA because they have not provided the same price of land to the respondents which earlier was given to the others. Under Article 25 of the Constitution of Islamic Republic of Pakistan the case of the respondents is on the same footing to that of the other persons from whom the land was acquired by the WAPDA. The appellants WAPDA failed to give any reasonable classification in this regard for not awarding the compensation to the respondents equal to the others.
8. Appellants WAPDA during the pendency of the R.F.A. In hand filed C.M. No. 1180-2000 for additional evidence and C.M. No. 169-2001 for appointment of local Commission for determination of the area utilized by the appellants for the construction of drain alongwith mutations and sale-deed of the land of Maqbool Ahmed land owner. The additional evidence can be allowed only in exceptional circumstances in a case in which the evidence required to be brought on record was essential for the just decision of the case and such either was not available or was beyond the reach of the party concerned at the relevant time or if pertaining to the official record was not in his knowledge but no such ground is available to the appellant WAPDA. Whereas suit was filed on 30.4.1995 and sufficient opportunity for production of evidence was given to the appellant WAPDA. The appellant-WAPDA has filed the instant application just to fill up the lacunas in evidence at latter stage. The other application of the appellant-WAPDA for appointment of local Commission has also no force because sufficient evidence is available on record to determine the market price of the property in dispute. Both the C.M.S. No. 1180-2000 and 169-2001 are dismissed being without any substance.
9. For the foregoing reasons, the R.F.A. No. 43- 1999 filed the appellant-WAPDA has no force and the same is dismissed. Whereas the other R.F.A.
No. 34-1999 filed by Maqbool Ahmed is accepted and the impugned judgment & decree passed by the learned Trial Court is modified with the following terms:---
(i) The value . Of the land residential land measuring 34 kanals, 7 marlas is determined to be Rs.
5000/- instead of Rs. 3000/- per marla.
(ii) The appellant-WAPDA shall also pay 15% compulsory charges to the respondents from the date of possession to the date of final payment of the decretal amount.
The claim of the respondents to the extent of 8% compound interest is turned down because the learned Trial Court has already fixed 8% simple interest at the bank rate from the date of possession of the impugned land i.e. 3.2.1990 till the realization of amount. .