' FAZAL ELAHI KHAN, J.-This Regular First Appeal is directed against the judgment and decree of learned Acquisition Judge, whereby on a reference made to him, by the learned Acquisition Collector of the objection petition of the appellants not accepting the award, was partially accepted.
2. The relevant facts pertaining to this appeal are that an area measuring 1,297 kanals 12 marlas out of the Revenue Estate of Kangra total measuring 6,061 kanals 7 marlas was acquired by the Provincial Government for public purposes namely for the establishment of Township for the settlement of the displaced persons of Tarbela Dam at public expense. Notification under section 4 of the Land Acquisition Act was published on 16-11-1971. The land acquired consists of various types including Chari, Kund, Maira and Ghair Mumkin etc. The land owned by Abdur Rahim and others the objectors/ appellants bearing Khasra No, 448 and 448/1 was classified by the Land Acquisition Collector as Maira, Kund, Banjar, Chari and Ghair Mumkin as mentioned in the award dated 30-4- 1974. The compensation was assessed at the following rates :- {{TABLE}} Chari ..Rs.
1,928.40 P. K.
Kund ..Rs.
1,285.60 P. K.
Banjar ..Rs.
160.70 P. K.
Ghair Mumkin ..Rs.
80.35 P. K.
3. Having not accepted the award Abdur Rahim and others made an objection petition before the learned Acquisition Collector requesting him to refer the same for the correct classification and assessm ent to the learned Acquisition Judge as required under section 18 of the Land Acquisition Act.
4. On reference made to him the learned Acquisition Judge on the pleadings of the parties framed the following issues-- (1)whether the land under reference has been wrongly classified and under-valued, if so, what is the correct classification, market value and fair compensation to which the objectors are entitled?
(2)whether the objectors did not respond to notices under sections 9 and 10 of the L. A. Act, if so, with what effect?
(3)whether the objectors have received compensation amount without protest, if so, with what effect?
(4)Relief.
5. The material issue requiring consideration in this case is Issue No,
2. The learned Judge after recording the evidence came to the conclusion that in view of the location, and future potentiality the Land Acquisition Collector was justified in ignoring the one year average of Chari type of land though the same was available to be made the basis of the assessment of compensation under section 23 of the Land Acquisition Act, which was Rs, 1,333.20 per kanal for Chari type of land. The learned Collector, however, keeping in view the location, future prospect and potentiality of the land worked out the compensation at the average of the sale mutations for the period 6-2-1973 to 5-2-1974 a year next before the Notification under section 6 of the Land Acquisition Act and thereafter two mutations of Maira type of land were taken into consideration for the same period has worked out the compensation for the other type of land on Para basis making it the basis for assessm ent. According to the average on the basis of these two mutations of Maira type, Chari type of land was valued at Rs, 1,928.40 per kanal. The last valuation being beneficial to the land- owners was made the basis of the award.
6. The learned Acquisition Judge, however, without any cogent evidence produced before him further enhanced the compensation and revalued the property of various types of land as under vide his judgment dated 127197.6.
Chari ..Rs.
2,250 P. K.
Kund ..Rs.
1,560 P. K.
Maira ..Rs.
750 P.
K.
Banjar ..Rs.
187.50 P. K.
Ghair Mumkin ..Rs.
93.75 P. K.
7. Dissatisfied even with the award of the learned District Judge, Abdur Rahim and other objectors have come up on appeal to this Court.
8. Qazi Abdur Rashid, the learned counsel for the appellants and Malik Bashir Ahmed, Advocate for the respondent present and heard.
9. The learned counsel appearing for the respondent raised a preliminary objection to the maintainability of the appeal on the ground that the same was filed after the period of limitation provided for an appeal. Elaborating his argument he stated that the judgment and decree in this case was .Passed on 12-7-1976 while the application for obtaining the copies of judgment and decree was made on 13-7-1976. These copies were prepared and were ready for delivery on 12-1- 1977. However the same were collected from the Copying Department on 10-4-1977. The appeal before this Court was filed on 25-7-1977. He contended that the time begins when an application is made for the copies and the time ends when the copies are ready for delivery. Accordingly the appeal having been filed after more than six months of the date of preparation is hopelessly time barred.
10. The learned counsel for the appellants mindful of this situation has made an application on 17- 5-1981, presumably under section 5 of the Limitation Act, for the condonation of the delay in filing of the appeal. The explanation given in the application can be reproduced for advantage as under :- "The relevant copies of the judgment /decree appealed against in the R. F. A. No, 90/70 referred to above, were applied for through Mohabat Khan, one of the appellants on 13-7-1976 but the Copying Agency concerned did not give any date for the collection of those copies. However, Mohabat Khan had made several trips for getting delivery of the copies but every time he was disappointed to know that the copies were not ready, that the Copying Clerk concerned was ever burdened by the like applications for getting delivery of the copies in question. However, the copying clerk had been all the time advising Mohabat Khan not to expect the copies before at least a year or so. Hence Mohabat Khan being tired of unproductive trips until he went to the clerk on 30-4-1977 when the copies were delivered to him by the clerk. In the meantime the Copying Clerk did neither give any date to Mohabat Khan nor did he give any intimation to Mohabat Khan, the applicant by post or otherwise to inform him that the copies were ready for delivery."
11. The learned counsel for the respondent asserted that the Copying Department having failed to give a specific date for the delivery of the copies and further they having failed to inform the applicant, by post or otherwise, that the copies have been prepared and are ready for delivery, the entire period spent in-between the date when the application was made and the date on which the copies were delivered to the appellants is to be held as time requisite for obtaining the copies under section 12 of the Limitation Act. Reliance was placed on West Pakistan Industrial Development Corporation v. Aziz Qureshi , wherein their Lordships in condoning the delay of three days as prayed for by the appellants observed as under :- "The time "requisite" for obtaining copies which can be excluded under section 12, Limitation Act, is the time which is taken between the date' when the copies are ready, but it can be further extended if further delay takes place by reason of the carelessness of the office in giving wrong information to the applicant as to the date on which the copies would be ready, or in giving no information at all. In any event, in my opinion, the delay has been satisfactorily explained."
Furthermore reliance was also placed on Mst. Aisha Bhai v. Mian Akbar Hussain .
12. On the other hand the learned counsel for the respondent referred to Fateh Muhammad v. Malik Qadar Bakhsh , wherein their Lordships of the Supreme Court held as under :-1 2 3 "It is well settled that the time requisite for obtaining copy of order within the meaning of section 12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery. Even during this interval, due diligence on the part of the litigant is required by law, and no delay, unless such as was caused by circumstance over which he had no control and which could not by due diligence be avoided, can form part of time "requisite" for obtaining the copy. The time between the date on which the copy is ready for delivery, and the date on which the applicant chooses to take delivery thereof is not a portion of the time "requisite" for obtaining a copy."
13. On going through the authorities referred to above and several others cited at the bar, each and every case is to be judged on the facts and circumstances referred to therein. We are fully satisfied that the determination of the question of the time requisite under section 12 of the Limitation Act in a particular case is a pure question of fact to be decided after the proper appreciation of the evidence and the circumstances of that particular case before the Court. In order to get the benefit of this provision of law the applicant is bound to prove that no part of A delay in getting the copies was due to his slackness. Negligence or carelessness. The explanation given must be reasonable and convincing so that the Court may form an opinion that the applicant was all along vigilant and making every effort in getting the copies in time. There may be cases where the applicants in spite of honest endeavor may not be able to get the copies in time though the same may have been prepared earlier than the actual date of the delivery and in those cases the period of limitation can be further extended in the special circumstances to be explained.
14. However, in the present case after going through the contents of the application we are unable to pursuade ourselves that the applicant was vigilant enough in his effort to get the copies of the orders, rather it speaks of his extreme negligence and lack of responsibility which disentitles him to the extension of period of limitation up to the date of actual delivery. Further more thought the copies were delivered to the applicant on 30-4-1977 and he very well knowing that the period of limitation has already been expired, further delayed the filing of the appeal for about more than 2 months, which conduct of the appellant negatives their claim of bona fide. Their Lordships in the reported case referred to above i,e, Fateh Muhammad v. Malik Qadar Bakhsh where the order appealed against was passed on 8-10-1973 by the High Court and the application was made on 5th of November, 1973 i,e, after the laps of 28 days and when the copies were ready on 13-12-1973 i. e. After 39 days, the appeal in the Supreme Court was filed on 25th of February, 1974 though the, copies have been received on 26th January, 1974, held that "However the petitioners received the copies on 26th January, 1974 and by then the period of limitation had already expired. This should have been enough warning that no further time is to be lost and instead of filing the petition immediately thereafter, they did not file it until 25th of February, 1974". The petition was dismissed on the ground that there was no explanation for this delay. In this case too in spite of the fact that the period of limitation has already expired and that the appellant had taken delivery of C the copies on 30-4-1977, they did not file the appeal until 25th of July, 1977 even for this delay no explanation is forthcoming.
15. In this view of the matter and in the circumstances of this case we are not satisfied by the explanation furnished by the appellants in their application that they are entitled to the condonation of delay.
16. Consequently this appeal is dismissed as time barred. 1973 SCMR 555 PLD 1981 1Car. 52 1975 SCM R 1571 2 3