' ABDUL HAYEE KURESHI, J.-The two appeals under clause 10 of the Letters Patent arise out of a single judgment of the learned Single Judge of the High Court of West Pakistan in J. Miscellaneous No, 55/69. These are cross appeals, the first being filed by Mst. Faizan and the second by the Government of Pakistan. We have heard Mr. J. H. Rehmatoola for Mst. Faizan and Mr. S. Mahmood Hussain for the Government of Pakistan. On the conclusion of the hearing we had by a short order dismissed the appeal of the Government (L. P. A. 54/72) with costs and allowed the appeal of Mst.
Faizan (L. P. A. 23/72) with costs and ordered the compensation to be paid at Rs, 6,000 per year as from 1958. The reasons for such short order follow.
2. The dispute relates to the compensation payable to Mst. Faizan for use and occupation of land bearing Survey No, 85 situated in Deb Dig. Tapo, Malir, Karachi. This land has an area of. 5-33 acres (28193 sq. Yds.). The land in question originally belonged to evacuee Motomal who had sold the same to Haji Abu Bakar for the sum of Rs, 6,000 by registered sale-deed dated 16th August, 1958 from whom Mst. Faizan purchased the same in 1955 and 1968 for a total price of Rs, 17,475. The sale in favour of the previous purchaser was confirmed by the Deputy Custodian of Evacuee Property on 6th August, 1953 and a copy of the order of confirmation is placed on the record as Exh. 5/1.
Although the Government of Pakistan had made an averment in the written statement/objections that property was evacuee, the said objection has not been pressed and Mr Mahmood Hussain appearing for the Government made a statement that the property in question is not an Evacuee Property and the title of Mst. Faizan is not in question. Pakistan Telegraph & Telephone Department had needed the land in question for some installations and the case of Mst. Faizan is that the entire land has been occupied by the said Department. On that point the state of facts are detailed in the judgment of the learned Single Judge which shows that the land in entirely has been occupied.
Such passage in the judgment of the learned Single Judge reads as follows :- "allegations were made in the application that in the year 1955 the telegraph department erected aerial masts, each of the height over 100 ft. Supported by a base radius of 60 ft. Diameter 120 c 1- zeumscription masts telegraph or telephone line 10 ft. High and about 12 ft. Wide midway across the line. Some material was also stored on the land. In order to protect the wireless station, masts erections and storage some ballies were erected. Initially the structures were made of wood. But subsequently the same were replaced by cement concrete and were linked together with steel barbed ropes and wires with the result that the applicant was not permitted to enter upon the land and enjoy it."
' It is also not contested that such recital in relation to the occupation of the land in question is correct, so that we have assumed that the entire area is in occupation and use of the Government of Pakistan. On 12th April, 1969 Mst. Faizan filed an application under clause (3) of section 16 read with clause (ci) of section 10 of the Telegraph Act, 1885 claiming that on account of use and occupation of the land she was entitled to compensation at the rate of 12 per cent. Of the value of land per annum. She reckoned the value at Rs, 2,25,000 at the rate of Rs, 8 per sq. Yard and claimed compensation of Rs, 3,78,000 for the period beginning 1965. Objections were filed by the Government of Pakistan in which it was stated that the plot was an evacuee plot, that the same was occupied for expansion of radio services that cement concrete pillars were erected to protect the installation against any sabotage, that the plot in question is in possession of the Government since 1937.38. It was further averred that Mst. Faizan had originally claimed a sum of Rs, 1,000 per annum as compensation and the claim in the case was "fantastic" and "highly exaggerated". On behalf of Mst. Faizan, her husband Abdul Hussain who managed the property appeared as a witness. He stated that the plot in question was purchased for establishing a housing society and poultry farm. He also stated that on account of the entire plot having been enclosed by cement concrete pillars and barbed wire entry on the plot had become impossible. He also stated that initially he had demanded compensation at the rate of Rs, 2 per sq. Yard. The other witness of Mst.
Faizan was Syed Ahmed who is an employee of the Settlement Department. He stated that according to the record maintained in the Department in which he serves land in Deh Dig had been auctioned in 1969 at the rate of Rs, 12.75 per sq. Yd. And earlier in October, 1967 land was auctioned in the same Deh at the rate of Rs, 2 per sq. Yd. On behalf of the Government of Pakistan Mohammad Tufail Bhatti, an employee of the Telephone & Telegraph Department was examined.
He stated that the land was evacuee property and therefore no compensation was payable to Mst.
Faizan. He also produced some correspondence that had been carried on between his department and several other Departments in connection with this land. One of the documents that he produced (Exh. 7/3) is a letter written to Mst. Faizan by the Post Master-General on the subject of acquisition of land in question wherein it has been stated that the case is pending decision by the Director-General of Telephone & Telegraph Department. In still another letter written by the General Manager of Tele-Communication Department to Mst. Faizan (Exh. 7/5) the latter was asked to intimate the minimum rate at which she would be prepared to dispose of the said land. The other witness examined by the Government of Pakistan was the same witness Syed Ahmed who had been examined by Mst. Faizan. He has produced a letter written by the Deputy Settlement Commissioner to the Additional Engineer of Wireless Department (Exh. 7/1) in regard to acquisition of land which includes the land which is the subject of this case.
3. It seems a pleading was raised by the Government of Pakistan in regard to jurisdiction of the High Court to entertain this suit on its original side and by an order dated 1st December, 1969 the learned Single Judge held that the High Court had jurisdiction to try this case on its original side.
That order has acquired finality. By the judgment dated 23rd July, 1971 the learned Single Judge determined the value of the property in question at Rs 17,475 and on an agreement between the counsel appearing for the parties fixed the amount of compensation at ten percent. Of the value of the property so that a sum of Rs, 1,850 was awarded as annual compensation to Mst. Faizan. Such compensation was allowed as from 1st January, 1966.
4. Mr. Mehmood Hussain has not contested the ownership of Mst. Faizan and even on the facts' it would appear she is the owner of the land in question. The revenue record stands mutated in her name and in that regard we do not propose to enter into that question. The rate of compensation was also agreed at ten per cent. Per annum of the value of the land and even before us the counsel have expressed satisfaction in regard to such criterion for compensation. The only point that has been urged before us is as to the value of land itself.
5. The land in question was purchased by for separate transactions. The major portion was purchased in July and December, 1955 and another small portion in February, 1958. The total price paid by Mst. Faizan was Rs, 17,700. The entire plot is in occupation of the Government and there is no contest on this point. Under clause (d) of section 10 the Government has to pay full compensation to all persons interested for any damage sustained by them" by reason of such occupation. The criterion therefore is to be the damage which has been sustained by the owner of the land on account of its occupation. The land in question is located near Drigh Road Railway Station and such area has the potentialities of use as building site. In fact there is evidence on the record that in 1967 land in the same Deh was auctioned at Rs, 2/12 per sq, yd. And in 1969 same land in the same deh was even auctioned at Rs, 20/75 per sq. Yd. Abdul Hussain, the witness for Mst. Faizan stated in his evidence that the value of the land in 1970 was Rs, 15 per sq. Yd. No witness has given any other evidence on the point. Taking note of the rising prices of land in Karachi we have even at a modest measure come to the view that the land in question should be valued at Rs, 2 per sq. Yd. We have kept it in mind that the land was purchased originally at the rate of Rs, 3,000 per acre but since annual rent is payable a progressive increase in rent on account of increase in value would be reasonable. Since we are fixing the rent which will be payable over a long period of years we have thought it fit to value the same at Rs, 2 per sq. Yard. As otherwise the market value of this land now would be many times more than this amount. This was the value at which land in the vicinity bad been sold in 1967. Working out the value of this land at the rate of Rs, 2 per sq. Yd. The land in question is worth about Rs, 56,386 to he rounded to Rs, 60,000. We allow compensation at the rate of 10 per cent. Of this value per annum as this rate was agreed to by the parties before the learned Single Judge. We direct that compensation should be paid at the rate of Rs, 6,000 per year.
6. The last question is with regard to the period for which compensation should be paid. The greater portion of the land in question was puchased in 1955 and a small piece was purchased in 1958. Ever-since Mst. Faizan purchased this land it is in occupation of the Telegraph & Telephone Department. It is admitted case that previously a wooden structure existed on the site but subsequently cement concrate pillars had been erected and the area has been closed by barbed wires for reasons of security. In any case there is no controversy that right from the beginning the land in question has been in total and exclusive possession of the department. We direct that compensation shall be payable from 15th February, 1958 when the last piece was purchased by Mst. Faizan and added to her earlier holding which had been purchased in July, 1955.
7. In the result appeal of Mst. Faizan (L. P. A. 23/72) is allowed to the extent that compensation is enhanced to Rs, 6,000 per year payable from 15th February 1958. Mst. Faizan shall also be paid costs. In the view that we have taken appeal filed by the Government of Pakistan (L. P. A. 54/72) is dismissed with costs.