MUHAMMAD AKRAM, J.-This is an appeal by the Government Under section 54 of the Land Acquisition Act, 1894 against the award made by the District Judge, Quetta, on the 22nd of August 1964, on the reference forwarded to him for the assessment of compensation, for the land acquired from the land owners.
2. The Commissioner Quetta Division, Quetta, issued Notification No. 198-R-8/61 dated the 24th of March 1961, under section 5 of the Land Acquisition Act (I of 1894) for the acquisition of the land situated in Mahal Khushkaba Kansi, Mauza Shaldara, Tappa Kansi and Mahal Sirki Kalan, Mauza Sirki, Tappa Saddar Kansi, Tehsil Quetta, District Quetta-Pishin for the public purpose of the construction and establishment of Pakistan Bureau of Mineral Resources. G. D. N. Branch, Karachi.
This was followed by the second Notification No. 198-R-8/61, dated the 28th of April 1961, issued under sections 6 and 7 of the Land Acquisition Act containing the details of the land to be acquired, measuring 150 Acres 4 Rods and 14 Pols in all, situated in these two Mahals. After the necessary enquiry, the learned Political Agent and Collector, Quetta-Pishin, Quetta, gave his award on the 4th of April 1962. He treated the whole of this land under acquisition as agricul--tural in nature and divided it into five different categories for the purposes of its valuation, based on the last five years average prices, and made his award assessing the total amount of compensation at Rs. 5,71,485.31 due to the land-owners, as under Per Acre A. R. P.
Rs.
R s.
(i) A.I & Chahi 8-1-38 14,600 1,23,187.50
(ii) Salaba 88-3-33 3,000 2,66,868.75
(iii) Khushkaba 27-3-5 2,000 55,562.50
(iv) Culturable 0-3-28 2,000 1,850
(v) Ghair Mumkin 24-0-38 2,000 48,475 150-1-14 Acres 4,95,943,75
(vi) Add Compensation of 3 Huts as proposed by the Committee.
1,000 Total 4,96,943.75
(vii) Add 15 % compensatory acquisition charges.
74,541.56 Grand Total 5,71,485,31 The land owners relating to the land situated in Mahal Khushkaba Kansi, Mauza Shaldara, Tappa Kansi, did not object to this award. But respondents Nos. 1 to 13, the owners in Mahal Sirki Kalan, Mauza Sirki, Tappa Saddar Kansi, did not accept the award and filed their objections against it before the Collector under section 18 of the Land Acquisition Act, 1894 (hereinafter called the Act) with respect to their land measuring 50 Acres 2 Rods 11 Pols situated in that estate. They have inter alia alleged their land in dispute is situated on the main Sariab Road and was a potential building site, with a price of not less than 62 paisas per sq. Ft. (approximately 26,600,00 per acre) on the date of notification. The respondents also claimed Rs. 18,500.00 as the additional compensation due to them in respect of their tubewell installed at site. In due course the Land Acquisition Collector forwarded this reference to the District Judge, Quetta, in accordance with section 19 of the Act for his decision in the matter. While this was still pending, on the 26th of June 1962, Mauj Din, respondent No. 15, filed a separate application under section 18 of the Act before the Land Acquisition Collector alleging that he had installed a Brick Kiln on a portion of this land under acquisition and invested Rs. 75,000.00 on it. As such he was a person interested but that the learned Collector had failed to serve any notice on him under section 9 of the Act and award the compensation due to him. He therefore, prayed that his case may also be referred to the learned District Judge for his decision on the amount of the compensation due to him. On the 9th of July 1962, the learned Land Acquisition Collector in continuation of his previous reference, forwarded this application to the District Judge for disposal. On the 10th of August 1962, Mauj Din, respondent, also filed a separate application under Order I, rule 10 before the District Judge for being imp leaded as a party in those proceedings pending before him. Accordingly on the 10th of August 1962, the learned District Judge allowed him the permis--sion to join in the proceedings before him.
3. The learned District Judge framed the following issues arising out of the pleadings of the parties in these two references pending before him:-
(1) Whether the compensation awarded is illegal and grossly inadequate?
(2) Whether the measurements taken in the award for the purpose of compensation are incorrect as also the position of respective ownership?
(3) Whether the application of Mauj Din petitioner is main--tainable under section 18 of the Land Acquisition Act?
(4) If so, whether it is within time?
(5) Was any compensation due for brick kilns and if so, to whom?
4. After the evidence adduced by the parties, the learned District Judge, Quetta on the 22nd of August 1964, gave his award in the matter. He was of the opinion that the Land Acquisition Collector was not at all justified in assessing the com--pensation for the acquired land treating it merely as an agricultural land. The land had all the possibilities and potentialities of building site and its market value was liable to be assessed as such. On these considerations he found that the market value of the land on the date of the notification was ps. 62 per sq. Ft. (approxi--mately Rs. 26,000.00 per acre) in addition to the 15% compulsory acquisition allowance due to the owners. He allowed another Rs. 10,000,00 as compensation due to them for the tube-wells installed at the site. He has, also awarded Rs. 30,000.00 to Mauj Din, respondent No. 13, on account of the compensation One to him for the Brick-Kiln found on the land. The grand total of the award thus made by him is as under: Area in sq. Ft. Amount Rs.
(i) Cost of 50 acres 2 Rods and 11 Pols @ Rs. 062 per sq. Ft.
2202776 -- 13,65,712 44
(ii) Plus 15 % compulsory acquisition.
2,48,856.89
(iii) Compensation payable to Mauj Din Kiln owner.
30,000.00
(Iv) Compensation for Tubewell etc. 100,00.00 Total 16,54,569.33
5. The Government has filed this regular first appeal against the award of this compensation allowed by the learned District Judge to the respondents over and above the amount assessed by the Land Acquisition Collector in this case. We have heard the learned counsel for the parties in this appeal. The Government had in all acquired 150 Acres 1 Rod 14 Pols of the land situated in the Mahal Khush Kaba, Kansi, Mauza Shaldara, Tappa Kansi and Mahal Sirki Kalan, Mauza Sirki, Tappa Saddar, Kansi, Tehsil Quetta, Quetta-Pishin District. The owners relating to the land situated in Mahal Khush Kaba, Kansi, Mauza Shaldara, Tappa Kansi accepted the award made by the Collector and they did not file any objections against it. Only the owners of the land measuring 50 Acres 2 Rods 11 Pols situated in Mahal Sirki Kalan, Mauza Sirki, Saddar Kansi filed their objections against the award which were forwarded to the learned District Judge for his decision in the matter. However, in their application, by respondents Nos. I to 14, under section 18 of the Act the land in dispute is described as situated in Mahal Khushkaba, Kansi, Mauza Shaldara, Tappa Kansi, Tehsil Quetta. This of course was incorrect and the mistake is due to a misunderstanding on the part of their learned counsel.
Otherwise it is quite clear from the copy of the fard jama6andi for the year 1958-59 (Exh. D.1) and the statement of R. W. 1 Abdul Ghani Kanugo that the land in dispute is situated in Mahal Sirki Kalan, Mauza Sirki, Tappa Saddar, Kansi, Tehsil Quetta. In fact before us, after some initial hesitation, the learned counsel for the parties did not seriously challenge this position.
6. In the award under appeal the area of the land now in dispute is given as 50 acres 2 rods 11 pols and none of the parties has challenged its correctness before in the arguments. R. W. 1, Abdul Ghani, Kanugo has best described the situation and the location of this land. He has produced a sketch plan (Exh. P. M.) showing the land under acquisition in the, two Mahals. He has deposed that by the side of this lands, there is the land of Khushkaba Mahal, out of which about 99 acres was acquired by the Government. The drain separating these to Mahals is shown in double line on the plan. Mahal Sirki is situated on the western side and on the eastern side is Mahal Khushkaba.
According to the witness most of the land of Mahal Sirki is uncultivated and is Khushkaba. Most of it is uneven having deep pits. In his cross-examination the witness has unequivocally admitted that the land in dispute is fit for building purposes. It is situated adjoining the road, at a distance of about 2-3 miles from Quetta. The Central Government had acquired some land adjoining this for its offices for the Geological Survey of Pakistan in the year 1959. The witness has further admitted that there are many Government offices and bungalows of important personalities in this locality" and that the price of the land in this locality is raising day by day. It is in the evidence and also apparent from the plan (Exh. P. M.) that on the west, this land is abutting the main Sariab Road. At the back towards the east there is the railway line and a part of the land in dispute at the rear is situated across the railway line on the other side. Before the learned District Judge it was not disputed that the land in question was attractive for house Building and that many bungalows were constructed nearby. We are fully convinced that this land is situated in a rapidly developing suburb of Quetta Town. There are already many Government offices and bungalows of important personalities built in this locality and there are vast possibilities of early development along this road. In these circumstances we are fully satisfied and the learned District Judge was justified in assessing the compensation for this land not merely by reference to the use to which it was being put at the time of its acquisition. Its value must be assessed as a building site with all its potentialities for its development in the near future.
7. On this view of the matter, therefore, in our opinion, the learned Collector had altogether erred in assessing its market value purely as an agricultural land in total disregard for its location and potentialities. In this connection, before us, the learned Additional Advocate .General on behalf of the appellant, made a half-hearted attempt to support the award of the Collector. He relied on the Collector of Karachi v. Rustom F. Cowasji and others (PLD 1961 Kar. 639), to contend that the market value of the land should be assessed on the basis of the use to which the land was put on the date of the notification. But this case cited before us is wholly distinguishable. In that case the acquisition was made under the Karachi Improvement Trust Act, 1950, with materially different provisions for the assessm ent of the market value. In the instant case, this acquisition of the land has been made under the Land Acquisition Act, 1894 and the compensation is to be assessed in accordance with the principles laid down under section 23 of this Act. It is well settled that under1B this section the owner is entitled to charge the price of his land fixed with reference to the probable use which will give him the, best return and not merely in accordance with its present use and disposition In a recent decided case in Province of Punjab v. Muhammad Fazil (PLD 1968 Lah.
1360), this Court has held that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser. The land is not to be valued merely in accordance l, with the use to which it is being put, but also by reference to the uses to which it was reasonably capable of being put in the future. Therefore, we have no difficulty in repelling this conten--petition advanced before us on behalf of the appellants.
8. To prove the market value of this land in dispute, the respondents have relied on oral and documentary evidence and the two can be conveniently discussed together. The best course is to examine the transactions for the sale of similar lands in the locality:
(i) Mutations Nos. 147, 148 and 149 (Exhs. P. H., P. J. And P. Respectively) all relate to the acquisition of the land, situated in Mahal Sirki Kalan, by the Central Government of Pakistan. These mutations were attested on the 6th of September 1959. But it appears to us that this land was actually required by the Government during the year 1957 on an average price of Rs. 10,460.09 per acte, approximately. This land is situated on Sairiab Road next to the land in dispute and its quality is entered as Kabil Kashat and Kbushkaba in these mutations.
(ii) By means of Mutation No. 127 (Exh. P. B.) entered on the 17th of January 1958, Nawabzada Temur Shah sold the land measuring 4 Rods 26 Pots comprised in Khasra No. 669, situated in the estate of Mahal Sirki Kalan to Mst. Agha Begum wife of Agha Muhammad Raza Khan for Rs. 19,044.0. This land is abi yak fasli doo sala. It was sold at the rate of Rs. 16,382.00 par acre. P. W. 4, Agha Muhammad Raza Khan has appeared as a witness in support of this transaction. He has deposed that this land is situated near the Rani Bagh on the main road was really meant for building purposes, According to him the prices in the locality are rising and some--time back he was offered Re. 0-14-0 per sq. Ft.
For his land. The land is situated in the same vicinity but its exact location cannot be ascertained.
(iii) By means of the Mutation No. 129 (Exh. P. A.), sanctioned on the 11th of March 1958, Ahmad Khan sold 3 Rods 13 Pols of the land bearing Khasra No. 668, situated in Mahal Sirki Kalan, to Nawabzada Temur Shah for Rs. 10,000.00. This land is entered as abi yak fasli doo sala and was sold at the rate of Rs. 12 482.00 per acre. P. W. 1, Ahmad Khan vendor has appeared as a witness to this transaction.
It appears that this land is situated in the same locality, but its exact position cannot be ascertained.
(iv) By means of Mutation No. 158 (Exh. P. K.) entered on the 12th of November 1960, Muhammad Khan, Lal Khan and others sold their land measuring 17 Rods 33 Pots comprised in Khasra No. 625, situated in Mahal Sirki Kalan, to Habibullah for Rs. 97,057.00, at the average rate of Rs. 21,789 per acre. This land is entered as "ghair mumkin godi" in the mutation. P. W. 8 Haji Lal Khan has appeared in support of this transac--petition. This is in fact a part of the land m dispute which was soon afterwards acquired from Habibullah respondent No. I, on the 24th of March 1964. This is, therefore, a most relevant instance for assessing the market value of the land in dispute.
(v) By means of Mutation No. 162 (Exh. P. C.) entered on the 5th of April 1961, for Mahal Sirki Kalan, Ghulam Jan and Jan Muhammad sold 14 Rods 39 Pols of the land comprised in Khasra No. 1224/445/1 to Mir Nabi Bakhsh Khan for Rs. 93,593/12, at the average price of Rs. 24,956.00 per acre.
This sale took place soon after the notification for the land in dispute. But according to P. W. 5, Arbab Jan Muhammad, the agreement to sell the land was made before it on the 20th of March 1961. He has placed a copy of this agreement on the file from his possession, without producing the original. It was not even proved and cannot be read into the evidence. The witness has deposed that his land is situated on Sariab Road. This sale was affected through P. W. 3, Malik Dur Muhammad, a broker, and according to him the land in dispute adjoins the one sold through him with only a plot of land in between them. This witness has deposed that the land near the road was sold at Rs. 30,000.00 per acre or 12 annas per sq. Ft. But there is no document produced in support of any such transaction. According to him the land away from the road was sold at Rs. 13,000.00 pet acre.
(vi) By means of Mutation No. 173 (Exh. P. D.), entered on the 10th of April 1962, Muhammad Khan and Lal Khan sold the land measuring 2 Rods 23 Pols comprised in Khasra No. 641 situated in the estate of Sirki Kalan to Abdul Rauf Khan for Rs. 8,125. It wasghair mumkin viyala khushak and sold at Rs. 13,000.00 per acre.
(vii) Similarly by means of Mutation No. 174 (Exh. P. E.), entered on the 10th of July 1962, Abdul Qadir sold land measuring 7 Rods 13 Pols situated in khasra Nos. 1227/640 and 1230/639 and 1227/640 to Abdur Rauf Khan for Rs. 21287.50. This was mostly abi land and was sold at Rs. 11,611.00 per acre.
(viii) By another Mutation No 175 (Exh. P. F.), entered on the 10th of July 1962, Arbab Muhammad Umar sold his land measuring 3 Rods 17 Pols comprised in Khasra No. 1231/929 and 638 to Abdul Rauf Khan for Rs. 9,750.00 at the rate of Rs. 11,000.00 per acre. This land was mostly abi.
9. In rebuttal to this evidence, the appellant has largely relied on the evidence forming the basis the award by the Collector. These are the two statements Exhs. P. N. And D. 3 of the average prices of the lands for the past five years relating to the Mahal Sirki Kalan and Mahal Khushkaba Kansi respec--tively. They were prepared by the Revenue Officers, on the basis of the different kinds of the agricultural lands, irrespective of their situation and potential as the building sites. From these statements the prices for the land in dispute were assessed according to its quality as agricultural in its nature. The prices for abi and chahi land was fixed at Rs. 14,600 per acre, for Sailaba at the rate of Rs. 3,000 per acre, and for Khushkaba, culturable and Ghair Mumkin at Rs. 2,000 per acre.
But this was a most unsatisfactory method in assessing the compensation for this land in dispute which has a great potential as a building site. We have, therefore, no hesitation in discarding this evidence led by the Government.
10. From the evidence adduced by the respondents already discussed, we find that the most relevant instance of sale is the one incorporated in the mutation Exh. P. K. Vide para. 8 (iv) above. In that case the land comprised in Khasra No. 625 was purchased by Habibullah respondent No. 1 at Rs. 21,780 per acres on the 12th of November 1960. This sale took place about 4 z months before the notification and relates to a part of the land in dispute acquired from respondent No. 1. There is no suggestion in the evidence doubting the bona fides of this transaction in any manner. From the plan Exh. P. M. It appears that this land abuts on the main Sairib Road in the front and extends up to the railway line at the back in the shape of a somewhat irregular rectangle. According to the mutation, the quality of this land is entered as "Ghair-Mumkin Godi" which as we understand means that it was unfit for cultivation, uneven and low lying because the earth had been-removed from it for making the bricks. Undoubtedly, this factor must have adversely affected its price of the land at the time of the sale, and on this account, some allowance must be made in assessing the market valueof the remaining land in dispute similarly situated. In this, connection, however, it must be borne in mind that according to the testimony of R. W. 1, Abdul Ghani, Kanungo, most of the land in dispute is uneven having deep pits. According to this witness the prices of the land in this locality are rising "day by day". It follows, therefore, that the price for this land must have registered some rise during the period of 4-- months after 12th November 1960, for which due allowance must be made for the landowners. A fair estimate of this can be had when we find that the land similarly situated in this vicinity was acquired at Rs. 10,460 per acre in the year 1957 for the, office of the Geological Survey of Pakistan and in a period of about 4 years the price of this land has gone up to Rs. 21,780 per acre. Taking all these factors into consideration we find that the market value of the land in dispute lying between the Saraib Road on the front and the railway line at the back must be accessed as a whole at Rs. 25,000 per acre. We are fortified in this conclusion also from the fact that soon after the notification, on the 5th of April 1961, a piece of land close to it was sold to Mir Nabi Bakhsh Khan at Rs. 24,956 per acre, vide mutation Exh. P. C. Discussed in para. 8(v) above.
11. We find that the learned District Judge has allowed the claim of the respondents for the compensation for the land in full at the rate of 0.62 paisas par sq. Ft. (Rs. 26,660 per acre approximately). But the reason adduced by him in support of his judgment under appeal is wholty un-intelligible He has re--marked that looking to the fact that the prices are increasing day by day and that: "the owner of the land nearby were given compen--sation at the rate of Annas 10 per sq.
Ft. Three years before this acquisition. I think that the compensation of the entire land at 62 paisas per sq. Ft. Plus 15% for compulsory acquisition would be the only fair compensation, to which the petitioners (now respondents) will be entitled". Presumably in this, in assessing the compensation, the learned District Judge was referring to the acquisition of the contiguous land made for the office of the Geological Survey of Pakistan in about the year 1957. But that land was acquired on an average at Rs. 10,460 per acre (about 4 annas per sq. Ft. And not 10 annis per sq. Ft.) as discussed in para. 8(i) above. It shows that the Court below was misled and has fallen into a grave error in basing his judgment on this instance.
12. It appears to us that the portion of the land in dispute situated on the other side of the railway line away from the main road has a comparatively lower value. This has no direct access from Sairiab Road, and is segregated by the railway line from the main block to the West abutting on this road. There--fore the price for the block of land at the rear situated on the other side of the railway line ha; got to be separately assessed. The town is expanding generally in this direction and this land at the rear too has its own potentialities as a building site, although to a lessor degree. It cannot be treated as purely agricultural in its nature; having full regard to its situation and the locality. Farther away, at the back it is separated from the rest of the acquired land situated iii Mahal Khushkaba, by means of a drain by its side. R. W. 3 Malik Dur Muhammad broker has deposed that the land at the back away from the road was sold at Rs. 13,000 p-.r acre. Also - according to P. W. 6, Abdul Rauf the land at tee back was purchased by him at Rs. 13,000.00 per acre. In this he is supported by the statement of P. W. 2 Abdul Qadir. R. W.
1. Abdul Ghani, Kanugo has also made this differentiation. According to him the price of tile land immediately abutting on the road was Re. 1 per sq. Ft. But sold as a whole the land would fetch 6 or 7 annas per sq. Ft. Taking all these circumstances into consideration it shall be fair to fix the market value for this price of land at the back at Rs. 15,000 per acre. It is comprised of Khasra Nos. 617-610-613-612-614--616- 607-611-618 and 615, measuring 12 acres 1 Rod 4 Pols. There is no other question raised before us against the award of the compensation allowed by the Court below to respondents Nos. 1 to 14.
13. Now the case of Mauj Din, respondent No. 15, remains to be discussed separately. In so far as he is concerned, the learned Additional Advocate-General has vehemently contended that, in the circumstances of this case, he had no locus standi at all to file any objections against the award made by the Collector and that this reference to the District Judge was wholly incompetent.
Admittedly he was never served with any personal notice by the Collector as required under section 9 of the Land Acquisition Act. Hz did not appear before the Collector and no enquiry was made into his claim. It was only after the award, that on the 26th: of June 1962, lie filed this objection against it under section 18 of the Act and asserted that he had invested Rs. 75,000.00 on a brick-kiln installed by him at the site and was entitled to the compensation. The award in this case was made on the 4th of April 1962. These objections were filed before the Collector within time on the 26th of June 1962 and were rightly referred to the Civil Court as required under section 19 of the Act. But the learned Additional Advocate --General has ventured to argue that in these proceedings the civil Court cannot be expected to entertain any new matter not raised before the Collector and into which he was not called upon to hold an enquiry and pronounce his award. In this connection, the learned counsel has relied on subsection (1) of section 12 of the Act to the effect that the award filed by the Collector shall, except as hereinafter provide, be final and conclusive evidence, as between the Collector and the person interested, "whether they have respectively appeared before the Collector or not". But in our opinion this section presupposes that the interested persons was regularly served with a notice required under section 9 of the Act and we cannot interpret this section to mean that the Collec--tor can take advantage of his own wrong by putting a really interested party out of Court for his own failure to serve the requisite notice on him. Indeed in advancing this argument the learned Additional Advocate-General has failed to take notice of the relevant provisions contained in, section 25 of the, Act. In this connection, subsection (1) of section 25 lays down that when the applicant has made a claim to compensation, pursuant to any notice given under section 9, tire amount awarded to him by the Court shall not exceed the amount so claimed. Subsection (2) of this section, however, provides that when the applicant has refused to inane such a claim or has omitted "without sufficient reasons (to be allowed by the Judge)" to make such a claim the amount awarded by the Court shall not in any case exceed the amount awarded by the Collector. Subsection (3) further lays down that when the applicant has omitted for a "sufficient reason (to be allowed by the Judge)' to make such a claim, the amount awarded by the Court shall not be less than and may exceed the amount awarded by the Collector. Under this section, there is abundant authority for the view that an interested person E. Cannot be held bound by the award in the absence of the required notice served on him under section 9 of the Act. In Tara Prasad Chaliha v. Secretary of State and another (AIR 1930 Cal. 471), it was held that if the provisions of section 9 have not been strictly followed as regards the service of notice, then it would be absolutely wrong to prevent the claimant from asking for proper compensation on a reference made by the Collector to the Court under the Land Acquisition Act and in such a case it is not possible to apply the penal provisions of section 25 to prevent the claimant from putting forward his claim b,--fore the Court. Similarly in N. M.
Venkatarama Iyer v. Collector of Tanjore (AIR 1930 Mad. 836), it was held that section 25(2) presupposes service of notice under section 9 and the refusal of the claimant to comply with its requirements. The onus is upon the Collector to prove due service of the notice under section 9 on the claimant. Where the notice issued was in contravention of section 9, the only logical conclusion is that the penalty which section 25(2) imposes cannot be taken advantage of by the Government.
The stringent provisions of section 25(2) can only be applied only after a notice which is in strict compliance with section 9 subsections (2) and (3), has been served upon the landowner. A claimant who has not at all been given the notice under section 9 cannot be affected. This objection raised on behalf of the appellant has no force and is repelled.
14. With respect to the merit of the claim of Mauj Din, respondent No. 13, we find that there is ample evidence on this record to establish that he was in fact running a brick-kiln at the site on the date of the acquisition. He got the land on lease from its owner and had installed a brick-kiln at the site.
The existence of the brick-kiln was even admitted by the appellant in his rejoinder to the objections filed by respondent No. 13. P. W. 11, Muhammad Yousaf, Patwari, has deposed that he has seen the brick-kiln on the land in dispute being run by Mauj Din. Before the learned District Judge as well it was not denied that the respondent was running a brick-kiln. There is also the overwhelming evidence adduced by most of the respondents, witnesses to the effect that Mauj Din was running a brick-kiln at the site. From all these facts and circumstances it is clear that he was an interested person possessing the necessary locus standi under section 18 of the Act to file his objections against the award made by the Collector.
15. Coming to the amount of the compensation due to the Mauj Din for this acquisition, we find that evidence adduced by him in this connection is not very cogent. The learned District Judge has awarded Rs. 30,000.00 as compensation to him although he was himself conscious that it was difficult to assess the loss sustained by him on account of this acquisition. How--ever, from the evidence of P. W. 6, Abdur Rauf it transpires that before Mauj Din, he was running a brick-kiln at the site and had invested Rs. 12,000 in order to set up the brick-kiln and according to his experience, Rs.
15,000.00 to Rs. 20,000.00 were required to keep it running. P. W. 11, Muhammad Yousaf (Patwari) has deposed that this kiln had the land, about 53 acres attached to it. Mauj Din was merely a tenant at will in respect of the land and he was, therefore, not entitled to any compen--sation for the acquisition of the land. P. W. 19, Mauj Din, respondent, has deposed that there was already an old Kiln on the land. This was replaced and he had installed a new one at a cost of Rs. 20,000.00 to Rs.
25,000.00. There is no evidence led by the appellant in rebuttal. Taking all these factors into consideration, we find that Rs. 15,000 would be a fair amount of compensation due to respondent No. 15 in this connection for the losses suffered by him on account of this acquisition. The amount awarded by the Court below without any basis, is far too excessive.
16. As a not result of the above discussion, we find that the respondents are entitled to the following amount by way of compensation for the acquisition of their land in dispute
(i) Market value of the land measuring 38 acres 1 Rod 7 Pols bearing khasra Nos. 623-624-615-626- 628-627/630-632-928/630-1238 at Rs. 25,000 per acre 9,57,343.75
(ii) Market value of the land measuring 12 acres 1 Rod 4 Pols bearing Khasra Nos. 607-610-611-612- 613-614-615-616-617-618 at Rs. 15,000 per acre.
1,84,125
(iii) Compensation for the tube-well allowed by the District Judge, Quetta 10,000
(iv) Compensation for the three huts allowed by the Collector 1,000 Total due to respondents Nos. 1 to 14 11,52,468.75
(v) Compensation for the brick-kiln due to respondent No. 15 15,000
(vi) Add 15 % on the above as the compulsory acquisition allowance due to the respon--dents 1,75,120 Grand Total 13,42,588.75
17. Before concluding we have to dispose of a preliminary objection raised before us on behalf of the respondents in this appeal. It was filed within time in the High Court at Karachi, on the 8th of December 1964, in the absence of the Bench at Quetta, as an urgent matter, with a Court-fee of Rs.
10,000 axed on it. It appears that the office raised an objection that the Court-fee was deficient and that it should be paid on Rs. 14,46,767.33, the subject-matter of the appeal, calculated in accordance with the Schedule of the Court Fees Act, applicable to the Former Punjab as adopted in Baluchistan plus 15 % extra in accordance with section 35-A of Ordinance LII of 1962, Calculated in this manner the Court-fee was found to be short by Rs. 2,031.80. Accordingly, on the 13th of September 1965, the Court directed a notice to issue to the appellant to make up this deficiency in the Court-fee. It appears that in spite of the reminders issued in this connection, the appellant deposited the additional Court-fee after a considerable delay on the 5th of March 1966. In these circumstances, it has been contended before us that there arc no good and sufficient reasons for condonation of the delay in making up this deficiency in the Court-fee on the appeal which should, therefore be rejected as not properly stamped.
We have considered this matter. It is common ground before us that the Court-fee payable on this appeal is to be calculated in accordance with the Schedule to the Court-fee (Punjab Amendment)
Act VII of 1922 as adapted for Baluchistan. According to the award under appeal, the learned District Judge, Quetta, has in all allowed Rs. 116,54,56.38 against Ra. 2,46,000 awarded by the Collector, by way of the compensation duo to the respondents for the land In dispute. So that we find that the subject-matter of the appeal before us is Rs. 14,08,569.68 and Court-fee payable on the appeal comes to Rs. 9,922.50 only, This is even less than the Court-fee of Rs 10,000.00 originally paid by the appellant on the appeal. But before us the learned counsel for the respondents contended that in computing the Court-fee, it must be increased by another 15%. In accordance with the requirements of section 35-A of Ordinance LII of 1962, This section, however, deals with the ad valorem fee leviable on the "institution of suits" specified in the Schedule to the Court Fees Act. In our opinion this has no application to the amount of fee payable on a memorandum of appeal against an order relating to compensation for the acquisition of land for public purposes under section 8 of the Court Fee Act. We, therefore, find that this appeal was properly stamped from the very beginning. This preliminary objection raised on behalf of the respondents has no force and is repelled.
18. For the foregoing reasons, this appeal is partly accepted and disposed of as above. But there shall be no order as to costs in the circumstances of this case.