1. NASIM HASAN SHAH, J.-This order will dispose of two Civil Petitions bearing Nos. K-186 of 190 and K- 199 of 1980, as both are directed against one and the same judgment passed on 9-3-1--80. By a Letters Patent Bench of the High Court of Sind at Karachi.
2. The facts briefly are that Mst. Faizan, respondent herein is the owner of an area measuring 5.33 acres equivalent to 28193 sq. Yards of agricultural land Survey No. 85 situated in Deh Dig Tapo Malir, Taluka, Karachi having purchased the same in two lots in 1955 and 1958 for a total price of Rs.
3. 17,475. However, this has been, occupied by the petitioner herein for setting up of a wireless station.
4. The petitioner, namely, the Telegraph Department of the Government of Pakistan in0 this connection erected serial masts, each of the height over 100 ft. Supported by a base radius of 60 ft.
5. Diameter 120 circumscription masts telegraph or telephone line 10 ft. High and about 12 ft. Wide midway arose 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 respondent herein was not permitted to enter upon the land and enjoy it. Accordingly, the respondent herein, on 18-4-1969, filed a petition before the Karachi Bench of the High Court of West Pakistan under clause (3) of section 16 read with clause (4) of section 10 of the Telegraph, Act 1885 claiming that she was entitled to compensation amounting to Rs. 3,78,000 on account of the use and occupation of the land by the petitioner. The value of the land was reckoned at Rs. 2,25,000 at the rate of Rs. 8 per sq. Yard and the compensation was sought at 12 % of the value of the land from 1955.
6. The Department contested the petition. It was denied that the respon--dent herein was the owner of the land in dispute. On the contrary it was asserted that land was an evacuee property. It was further averred that the wireless station was set up in Plot No. 84 in pre-partition days and after the partition as a result of the expansion of radio services more equipments had to be installed on the adjoining plots including the plots in dispute. Originally, some wooden pillars were installed to protect the wireless station from sand round these plots and it was only in 1966 when on account of the passage of time the wooden pillars were worn out that barbed wire fencing with cement concrete pillars were erected to protect the valuable installations against sabotage. In any case, the compensation demanded was highly exaggerated. It was also claimed that the petition was not maintainable and was also barred by time. The jurisdiction of the High Court to entertain the petition was also challenged on the ground that this matter could not be decided by the District Judge.
(1) Whether Mst. Faizan (respondent herein) was the owner of the land ?
(2) Whether the petition filed by her was maintainable?
(3) Whether the said respondent was entitled to damages if sty, how much?
(4) Whether her claim was time-barred?
(5) What was the order that should be passed?
7. The first point, namely, whether the respondent herein was the owner of the land, was held in her favour. So -far as the second and third points, namely, whether the petition was maintainable and whether the respondent herein was entitled to damages; if so, how much, are concerned, it was held that as she had been deprived of the use and enjoyment of the land, the petition for grant of damages was maintainable. So far as the quantum of damages to be awarded was concerned, it was held that com--pensation at the rate of 10 % of the value of the property would be fair com-- pensation. On this criterion she would be entitled to be awarded Rs. 1,747.50 per annum (made into a round figure of Rs. 1,750) and this amount was allowed to her with effect from 1-1-1966. On the fourth point namely, whether the claim was time-barred, it was held that no period of limitation was prescribed by the Telegraph Act of 1885. It was further observed that "it is not contended that the Limitation Act is applicable".
8. On the basis of the above findings, it was ordered vide judgment passed by the learned Single Judge on 23-12-1971 that the petitioner should pay compensation to the respondent at the rate of Rs. 1,750 per annum with effect from 1-1-1966.
9. Both the parties feeling aggrieved by the above order challenged it by filing appeals under clause 10 of the Letters Patent (that of the respon--dent being L. P. A. No. 23/72 while that of the petitioner being L. P. A. No. 54/72).
10. The judgment passed by the learned Judges of the Division Bench shows that the parties contested the matter before it only on three points, namely, what was the extent of the land (of the respondent) occupied by the petitioner? What was its value?-there was no dispute that the rate of compensation at 10 % per annum of the value of the land was fair and, thirdly, for what period compensation should be paid to the respondent? So far as the objection that the property was evacuee property is concerned the learned counsel for the Government (petitioner herein) made a statement that the property in question was not an evacuee property and that the "title of Mst.
11. Faizan (respondent herein) is not in question".
12. On the first point contested before the learned Judges of the Division Bench it was found that the entire area owned by Mst. Faizan respondent herein was in occupation and use of the Government of Pakistan. As regards its value, the learned Judges after discussing the evidence produced by both the parties, fixed it at Rs. 2 per sq. Yard. On this basis the land in question was held to be worth about Rs. 56,386 (to be rounded to Rs. 60,000). The principle of the rate of compensation at 10 % of the value of the land having been accepted it was directed that the compensation should be paid at the rate of Rs. 6,000 per annum. As regards the third point, namely, the date from which compensation should be paid it was found that although the larger portion of the land in question was purchased in July, 1955, and only a small piece was purchased in 1958 and that the land had throughout been in the occupation of the Telegraph. And Telephone Depart--ment, the payment of compensation should begin from 15-2-1958 when the last piece of the land was purchased.
13. It is true that the learned fudges of the Division Bench, in their judgment, did mention that the petitioner herein had raised a contention that the High Court did not have the jurisdiction on its original side to entertain the respondent's petition for compensation as only the District Judge could entertain such a petition but observed in this connection that by an order dated 1-12-1969 a learned Single Judge had repelled this contention and found that the High Court had jurisdiction to try this matter on its original side and that this order had acquired finality. The perusal of the judg-- ment of the Division Bench shows that no attempt had been made to challenge the correctness of this order. (dated 1-12-1969) before it and the reference to this aspect was only for the purposes of completing the history of the case.
14. Mr. Munir A. Sheikh, learned Deputy Attorney-General, in support of these petitions for leave to appeal, directed against the judgment of the Letters Patent Bench, however, contended before us that the High Court had no jurisdiction to entertain the respondent's petition under section 16 of the Telegraph Act, as the District Judge was the proper Court in that respect; that if the High Court could entertain the petition, then an L. P. A. Against it was not competent as no appeal lay against the order passed in connection with a petition under section 16 of the Telegraph Act, hence the judgment of the Letters Patent Bench was not valid; that the respondent was not the owner of the property and, therefore, was not entitled to any compensation, as the property in dispute was an evacuee property and had ultimately been transferred by the Settlement to the petitioner; that the respondent's petition was barred by limitation; that the value of the subject-matter of the dispute, both in the Court of first instance and that in the appellate Court, was more than Rs. 50,000 that the appellate Court had varied the judgment of the Court of first instance and that the petitioner could file an appeal to this Court as of right under Article 18i of the 1973 Constitution.
15. After hearing the learned Deputy Attorney-General at some length, we do not feel that this is a fit case for grant of leave to appeal. So far as the first contention is concerned, namely, the District Judge was the proper Court to hear the respondent's petition under section 16 of the Telegraph Act and not the learned Single Judge of the High Court, suffice it to say that this objection was raised in an application submitted by the petitioner under Order VII, rule 10 of the C. P. C. And repelled by a detailed and elaborate order dated 1-12-1969. No petition for leave to appeal was filed against this order and the learned Single Judge of the High Court was allowed to proceed on the merits of the case, to record the evidence and after two years of proceedings on it, decided the case on the merits.
16. After the above decision, the petitioner filed an appeal (L. P. A. 54/72) before a Division Bench, No ground was taken therein that the learned Single Judge did not have the jurisdiction to entertain the respondent's petition under section 16 of the Telegraph Act because this could only be heard by the District Judge, Karachi. Though in the order passed by the learned Judges of the Division Bench some reference was made to this question but it does not appear that this was made in connection with any objection raised on this aspect by the petitioner. The absence of any objection to this effect in the grounds of appeal supports this inference. The Letters-Patent Appeal was decided on 9-3-1980. The learned Deputy Attorney-General would like us to re-open a question decided in 1969 and not objected to up to 1980 at this stage. In these circumstances, we are not inclined to allow the petitioner to re-open this question before us at this late stage. Moreso, when the point being raised is- a purely technical one. In point of fact, the respondent's petition bas been heard by a forum even higher than the one which, according to the petitioner, should have heard it, namely, a Judge of the High Court instead of merely a District Judge and the objection goes more to the form than to the substance of the matter In fact, in the grounds of appeal (in L. P. A. No. 54/72) on such objection were raised and main emphasis therein was with regard to the question of the quantum of compensation allowed by the learned Single Judge.
17. As regards the points that the Letters Patent Appeal was not competent, such an objection can hardly be given any serious consideration to the face of the fact that the petitioner himself also filed an L. P. A.
18. As for the objection that the property was an evacuee property arid was not owned by the respondent we observe that this objection was specifically given up by the learned counsel for the petitioner before the 1Larned Judges of the Division Bench, before whom a clear statement was made that the property in question was not an evacuee property and that he (learned counsel for the petitioner) did not contest the ownership of the respondent over it. In the face of this statement we cannot permit the learned counsel for the petitioner before us to try to argue that the property was not owned by the respondent or that it was, in fact, an evacuee property. His submission that the respondent's petition for compensation was barred by limitation also does not deserve any consideration because the finding of the learned Single Judge that no period of limitation was prescribed by the Telegraph Act for such applications and the. Limitation Act was not applicable to such proceedings, was not challenged by the petitioner in his appeal. This is also evident from a perusal of the grounds of appeal (L. P. A. 54/72) which shows that no such ground was raised therein.
19. As regards the last contention that the petitioner can prefer an appeal before this Court as of right, we observe that the petitioner has filed two petitions for leave to appeal in this Court. The first petition, namely, C. P. S. L. A. No. K-186 of 1980 is directed against the order of the Division Bench in Letters Patent Appeal No. 23 of 1972, whereby Mst. Faizan's appeal was partly accepted and the compensation awarded to her was enhanced from Rs. 1,750 per annum to Rs. 6,000 per annum and made payable from 15-2-1958 instead of from 1-1-1966, while the second petition, namely, C. P. S. L.
20. A. No. L-199 of 1980 is directed against the order of the Division Bench in Letters Patent Appeal No. 54 of 1972, whereby the petitioner's appeal against the judgment of the learned Single Judge of the High Court allowing compensation at the rate of Rs. 1,750 per annum was challenged. On these facts, the learned counsel was able to establish that the conditions laid down in Article 185(2)(e) entitling a party to file an appeal as of right in both the matters stood fulfilled.
21. We may here observe that grant of leave to appeal by this Court against the judgments of the High Court is discretionary and this Court will not grant leave merely for consideration of pleas of. a technical nature. It is only where the ends of justice will be served by rehearing of the matter by the Court placed at the apex of the judicial hierarchy will this Court normally proceed to grant leave.
22. The present appears to be a case where the emphasis is no technicalities, no doubt of some importance, such as the question whether the District Jud4e had the jurisdiction to entertain such cum or the High Court could also do so in certain circumstances. . If such matters are allowed to be raised at this stage in the circumstances of this case the interests of justice are not furthered. The land in question is located near the High Road Railway Station in Malir, Karachi and, as such, the area has potentialities of being used as a building site. The owner has been deprived of its use and occupation ever since its purchase. Taking note of the rising prices of the and in Karachi two learned Judges of the Sind High Court placed its value at Rs. 2 per sq. Yards, which was, indeed, a very fair and modest price. No serious objection was raised before us to the valuation of its price and the effect of the decision is sought to be nullified merely on grounds such as that the District Judge should initially have heard the matter and not a High Court Judge; that an appeal against the last mentioned decision should not have been heard by a Division Bench of the same Court (even though the petitioner himself also filed an appeal before it); that the claim of the respondent should have been rejected on the ground of limitation (even though no such objection was raised before the appellate Court- where the stress only was on the question of the correct valuation of the land). Since no fault has been found against the said findings of the Division Bench and the effort is to deprive the owner from receiving her rightful compensation only on the basis of legalistic and technical pleas, this Court in exercising its discretionary jurisdiction of granting leave to appeal in a matter coming before it will hesitate to allow a just and proper decision given on the merits of the case to be put into jeopardy merely because- some legalistic and technical pleas can be raised.
23. The result is that these petitions must fail and .Are, accordingly, dismissed.