1. ' This is a reference under section 18 of the Land Acquisition Act. After complying with all the provisions required by the Land Acquisition Act the Deputy Commissioner/Land Acquisition Officer made an award on 10th October, 1970. The claimants did not accept the Award, and therefore, on their application the matter has been referred to this Court. In the Award, for commercial lands in Garden East, the Deputy Commissioner has awarded compensation Rs,240 per sq.yard. Similar lands situated in Garden West are to be compensated 1(s.200 per sq. yard. So far other lands are concerned, the compensation is to be paid Rs,60 per sq.yard. For the construction existing on the acquired plots the rate has been fixed according to its nature. Compensation has been claimed by the owners of land and building and Pakistan Burmah Shell (PBS) which is a lessee of Plot No,461 Garden East. All the plots have been acquired for public purpose viz, widening the Lasbella intersection road by K.M.C.
2. All the learned counsel for the claimants have challenged the award mainly on the ground that the potential value of the land has not been taken into consideration. Potential value means future utility or probable use of the land in a more advantageous and profitable manner which has to be determined on the basis of evidence on record The potential value cannot be determined on speculation, conjecture, surmises or presumption. Nor can it be based on a possibility of the land being used in a distant future. There should exist a reasonable possibility of using the land for purposes other than it is being used the likely possibility of bringing it in use in a more lucrative and profitable manner within a reasonable period. Such factors are to be taken into consideration for determining the market value. I would now deal with the matter claim wise.
3. ' There are two plots in respect of which permission has been granted to use as commercial plots.
4. One is Plot No,393 Garden West where a market consisting of several shops and residential flats have been constructed. The other is Plot No,461 Garden East owned by Khadim Ali Shah Bokhari which has been leased out to PBS which has installed petrol pumps there. The area of the plot is 2,976 sq.yard out of which 699 sq.yards have been acquired for widening the road at Lasbella Chowk by Karachi Municipal Corporation. This plot was purchased by Khadim Ali Shah Bukhari, the present claimant from Moulana Zahir Qasim who had leased it out to PBS in 1963 which could be extended at the option of PBS up to 1993. The owner/claimant had claimed compensation Rs,1,100 per sq.yard against which the Deputy Commissioner has awarded at the rate of Rs,240 per sq.yard.
5. ' Mr.A.Fateh Memon the learned counsel for the owner has contended that the potential value of the plot has not been considered by the Deputy Commissioner, and therefore, its value has not been properly assessed. The learned counsel further contended that by taking away 699 sq.yards the use of the plot has been adversely affected, and although at one time permission had been granted to construct cinema house on this plot, as its area has been reduced less than 2,000 sq. yards, it cannot be used for that purpose. The learned counsel has referred to the permission granted to Moulana Zahir Qasmi on 11-1-1951 to construct cinema house but it seems that this licence was not availed by him and it has expired long ago. In fact the land was leased out by the previous owner to PBS for a long term, which at its option be extended till 1993. The claimant has accepted PBS as the lessee on the same terms and conditions, therefore, the question of constructing cinema at least for reasonably long period is ruled out. P.B.S. at no stage has signified its consent to vacate the plot. Further the permission granted in 1951 could not have been utilized in 1970 nor such a permission could enhance the value of the plot in 1970. It has been brought on record that the claimant had agreed to purchase this property on 11th July, 1967 for a consideration of Rs,75,000 and a conveyance deed was registered on 12-5-1969. A photo copy of the registered sale-deed was produced by the learned counsel during the argument. In the deed it has been provided that the parties have agreed that in the event of the said plot or any portion thereof being acquired by the Government K.D.A, K.M.C, or any other authority in connection with the Lasbella Intersection Scheme the claimant shall be fully entitled to apply for compensation for the land so acquired and that the vendor shall have no right, title or interest of any nature whatsoever. It is, therefore, clear that in the year 1969 when the claimant purchased this property, he was aware that there was every likelihood of this plot or a part of this plot being acquired by the Government, K.M.C. or K.D.A. for the purpose of widening the road. It also suggests that the scheme was awaiting implementation and perhaps paper work might have been finalised because the first Notification under section 4 was issued on 16-1-1970 i.e, 7 months after it was purchased by the claimant. With these facts within the knowledge of the claimant, it is difficult to reconcile that the claimant has suffered loss as he cannot construct a cinema house now for which permission was granted to the previous owner 19 years before the plot was purchased by him, There is no valid licence in his favour nor there is any prima facie possibility of constructing a cinema house in the near future.
6. Even this possibility after two decades will not enhance the potential value of the plot.
7. ' The next question for consideration is whether the potential value of the plot has been taken into consideration by the Deputy Commissioner. The claimant has to first establish that the plot has a potential value. This plot is situated on main Nishtar Road. According to the evidence, nearby area is fast converting in commercial area. Plot No,393 Garden West, which is also on the main road, few hundred yards away, has been allowed to be converted into a commercial plot and in fact commercial-cum-residential building has been constructed. in view of these facts the learned counsel contended that there is every possibility of rise in the value of the plot which should be much more than it has been assessed. Plot No,461 has already been converted into a commercial plot. It is in occupation of PBS and will remain with it up to 1993. Therefore, in these circumstances, there is hardly any ground to establish that there existed any potential value of the plot. Its potential value has already been developed any exploited. Except for the fact that the neighboring area is developing very fast no other evidence has been produced to prove the market value of similar plots on the main road in the vicinity. On the other hand the Deputy Commissioner has taken into consideration the sale price of the neighboring plots and has calculated the market value of the residential plots at Rs,60 per sq.yds. The sale of plots taken into consideration relate back to years from 1959 to 1969. Most of these plots are not on the main road and are located in the residential area. However, in the absence of any definite evidence produced by the claimant such sales can provide safe guide to assess the market value. The case nearest to the date of acquisition is that of the claimant himself who has paid Rs,75,000 for 2,476 yds. This certainly is not the real market value of the plot as is obvious from the deed itself. The Deputy Commissioner has awarded at the rate of Rs,240 per sq.yard which is four times more than the rate of the residential plot. In the absence of any other evidence of market value or potential value of the plot which has already been developed as a commercial plot and taking into consideration the sale price of residential plots the assessm ent seems to be reasonable and proper.
8. ' Mr.Abdul Fateh Memon has referred to the evidence of Zahooruddin Architect who had issued a certificate Exh .4/9 stating that the market value of this plot is Rs,500 per sq.yard. His evidence is of no assistance to the claimant as he does not deal in real estate and has not stated on what basis he has fixed the market rate at Rs,500 per sq.yd. He has not given particulars of any transaction of the plot in the locality. He is an architect and has no experience and knowledge of dealings in real estate. He cannot be termed as an expert witness. The opinion of an expert witness should be based on reliabl and tested information and definite facts. If expert's evidence is no supported by real data it may be ignored. Reference can be made Secretary of State v. Saris Devi Chudharani AIR 1924 Lah. 548; Pirbu Dayal v. Secretary of State I R 1931 Lah.
364. In Marish Ghandro v. Secretary of State 11 CWN 875 it was held that expert's evidence is useful but it is unsafe to rely upon it unless it is supported by other evidence. In every valuation whether by an expert or a Court, there is always an element of conjecture which is a result more of experience than reason. It is, therefore, necessary that a definite foundation should be laid before expressing an opinion. Due to infirmities in the evidence of the said expert witness I am not inclined to accept it.
9. ' Mr.Abdul Fateh Memon relied on the sale-deed in respect of part of Plot No,376 Garden West which is subject-matter of the claim filed by MRs,Mehroo. For reasons stated hereunder (while dealing with her claim) I am not inclined to accept it as a basis for determining the market value of the land.
10. ' Along with this claim of the owner of Plot No,461 Garden East, it is proper to deal with the claim of P B S which is a lessee of this plot. At the outset it may be mentioned that PBS had entered into a lease with its previous owner which is continuing and will be operative up to 1993 at its option. The lease provides that in case of plot being acquired by the Government or any authority, PBS will be entitled to determine the lease and remove all structures, erections, materials and properties, PBS had made a claim Exh.7/21 in the following terms:-
(1) Rs,77,998 being the market value of the acquired land @ Rs,400 per sq.yd.
(2) Rs,2,89,921 being the claim for damages for severance of acquired land.
(3) Alternatively, the same amount of Rs,289,921 for damages sustained by reason of acquisition injuriously affecting its other property i.e, its rights and interest in any utility of the remaining portion of the plot constructions and facilities.
(4) Rs,30,000 for injuriously affecting its income.
(5) Rs,95,000 towards expenses incidental to change of the place of business from the acquired part of the plot to the remaining part. The Deputy Commissioner has awarded Rs,11,250. In my opinion the claim made at Serial Nos.2 and 3 covers the claim at serial No,5.
11. ' Mr.Noor Muhammad the learned counsel for PBS has not pressed the claim of Rs,75,998 as a lessee cannot claim the value of the plot acquired. In respect of claim of Rs,2,89,921, the learned counsel has stated that this amount includes Rs,18,000 for emergency removal of tanks and pumps from the acquired area and installing it in the new area, Rs,16,000 as expenses for constructing new approach road, Rs,10,000" for re-constructing petrol pump on permanent basis, advance rent losses Rs,52,758 and losses of future rent of Rs,8,665. So far the advance rent or loss of future rent is concerned the same cannot be considered, and there is no material on record on the basis of which it could be granted. The re-construction of the, petrol pump on permanent basis is supported by the documents which consist of the plans and estimates of the expenses. From the plan it is clear that re-construction was not necessitated due to acquisition of the land, but it was a part of programmer for expansion of business by providing a better convenient and imposing place of business which may be more impressive and attractive to the customeRs, Therefore, such expansion motivated by business purpose will not at all be relevant for making the claim. The witness examined on behalf of P B S stated as follows:- "In the acquired area two pumps and three tanks had to be dismantled as they fell within the acquired area."
12. ' In the cross-examination he stated except three filling petrol pumps and two underground storage tanks no other portion of petrol pump is affected by the order of acquisition. The learned counsel stated that only three petrol pumps and two storage tanks were affected and they had to be removed and reconstructed on emergency basis costing Rs,18,000. The learned counsel further stated that the construction of petrol pumps had cost P.B.S. Rs,1,40,532. By removing those pumps and tanks the claimant has suffered loss and in addition it has incurred cost of reconstruction also.
13. ' Mr.Noor Muhammad the learned counsel for the P.B.S. has referred to two site plans Exhs.7/16 and 7/17 to show the installation required to be demolished and the new proposal for reconstruction.
14. From Exh.7/16 it is clear that three filling tanks and two petrol pumps were affected, as they fell within the acquired area. Therefore, as a direct consequence of acquisition, the claimant had to reconstruct three tanks and two petrol pumps. The other two petrol pumps which were near the footpath had to be removed for convenience and safety sake. Besides this no other building or construction was to be affected. In Exh.7/17 the claimant has shown that it has demolished service stand, office, show room, lavatory, ramp, and changed the filling point of the storage tanks. Except the demolition and reconstruction of two tanks and three petrol pumps all other demolitions and constructions as shown in Exh.7/17 were not due to acquisition, and therefore, the claimant cannot claim the cost of such construction. The claimant has relied on Exh.7/20 which is the approved estimate of costs of remodeling the sta tion. It is dated 21st September, 1972 for a total amount of Rs,1,04,023. It mostly relates to the construction which the claimant has carried out for its own convenience and better business. The documents Exhs.7/6 and 7/7 relate to the cost of construction, and fitting in the year 1963-64. Exh.7/8 is an estimate, dated 16-1-1970 proposed on 21- 1-1970 and the target date of completion was given as 28-2-1970. It is in respect of providing facilities at the service station costing Rs,15,248. The other document Exh.7/9 is also dated 24-2- 1970 for providing additional-flood light at the service station. It was to be completed by 15-6-1970 costing Rs,7,000 These amounts cannot be claimed by P.B.S. as admittedly the amount was spent in respect of work which was carried out ,much after the notification for acquisition had been issued on 4-1-1970. Under clause 1 of section 23 (1) the amount of compensation to land and building is determined according to its market value on the date of notification under section 4 of the Act. It therefore, follows that compensation can be awarded in respect of such building which existed on the date of such notification. The claimant was aware of the notification and it ought not to have spent these amounts on these works. From the evidence of S.Ashfaq Hussain Exh.7 it seems that at the suggestion of PBS the Deputy Commissioner had invited tenders for dismantling and resetting five petrol pumps and two tanks affected by acquisition from a company which carried out work for P B S. On the basis of that estimate Rs,11,250 was awarded. The award in respect of these items seems to be proper based on evidence obtained at the suggestion of the claimant itself.
15. ' P.B.S. has also claimed Rs, 16,000 for construction of approach road, which has been made due to shifting of the petrol pump at new points. Construction of approach road was necessary for proper working of the station after its resetting. In this regard reference is made to Exh.7/20 in which cost for constructing approach road has been estimated at Rs,400 in the absence of any other evidence to establish otherwise Rs,400 should be awarded to P.B.S. ' The claimant has also claimed Rs,30,000 for injuriously affecting its business. Clause 4 of section 23(1) provides for compensation for loss of earning due to acquisition. In order to claim compensation for such damage the claimant must prove that he is a person interested and has sustained damage at the time of Collector taking possession. Reference can be made to Collector of Dinjipur v. Girijanath Roy ILA 25 Cal.
346. The earning which is injuriously affected by the acquisition must be compensated. In the foretasted case the land was acquired to construct an overbridged and as a consequence, the owner lost his ferry income across the river it was held that the injury to ferry income was compensable. In Venkatchariar v. Divisional Officer Tine Valley 14 I' C 625 compensation for loss of income of a hotel on the land acquired was granted. Again in Narain Chandras Barol v. Secretary of State I R 28 Cal. 152 where a tank was acquired a lessee who reared and stocked fish in it was compensated for the loss of income. Compensation for the income injuriously affected by acquisition at the time of taking possession by the Collector can be claimed by the owner, lessee or person interested as defined in section 3(b) of the Land Acquisition Act.
16. ' In his statement Syed Ashfaq Hussain has stated that P.B.S. lost about Rs,150 per day net profit for 60 days as site had remained closed for about two months. Exhs.7/10 to 7/14 have been produced to show that after acquisition of the plot due to shifting of the pumps there was a decrease in the sale. I cannot reconOile to the nature of the claim that due to shifting of the petrol pumps within the same area on the same road how the sale would have been deceased. Therefore, this claim cannot be granted. P.B.S. has claimed loss of income @ Rs,150 per day for 60 days. The defendants have not challenged this statement in cross-examination, nor produced any evidence to rebut it.
17. There is nothing in the evidence of the defendants to show that the site had not been closed for 60 days. Therefore, the claimant would be entitled to Rs,9,000 for loss of income. The net result is that P B S will be entitled to Rs,20,650.
18. ' The other claim is by the owners of the Plot No,376 Garden West, measuring 80 sq. yards. It is jointly owned by two claimants who had purchased this plot with construction thereon on 18th March, 1969 for Rs,35,000. The claimants had purchased a running restaurant with all its construction, fixture and fittings. This plot is a part of land bearing Survey No,376 measuring 2,824 sq. yards Garden West. The claimants filed a claim for Rs,50,388. It was stated that the restaurant on that property was rented out at Rs,300 per month and Pan shop at Rs,80 per month. The claimants have produced sale-deed showing consideration of Rs,35,000 paid by them, a receipt for Rs,10,000 for repairs and replacement and the cost of fittings and other appurtenances, a receipt for Rs,3,000 paid to the vendor, Rs,1,388 towards cost of stamp and cost of registration and deferred charges at Rs,1,000. The claimants are claiming compensation on the basis of the conveyance deed executed in 1969 and the amounts paid and spent by them as stated above.
19. According to them it is the market value of the ' property purchased very near to the date of acquisition.
20. ' The amount of Rs,35,000 was the sale consideration for the land, construction furniture, fittings and the running business of the restaurant. It therefore, cannot be termed as the market value of the plot and construction. The defendants have contended that the construction was unauthorized, and therefore, no compensation can be granted. The claimants have stated that they are not aware that it was unauthorized, or that no sanction of the Government for use of the plot as commercial area had been obtained. The defendants have also not produced any evidence to show that it was an unauthorized construction. Similar objection was raised by the defendant in respect of the claimant Saeed Ahmed and other owners of the Plot No,460, Garden East, but they later on produced plan sanctioned by the Karachi Development Authority. The claimants have not produced any sanctioned plan or any permission to use the plot for commercial purpose. However, as the Deputy Commissioner has awarded compensation to the claimants for the construction, at this stage, in this reference, the same cannot be reduced on the ground that the building was unauthorized.
21. ' Mr.Zaheeruddin Khan the learned counsel for the claimant has mainly relied on conveyance deed referred above and according to him Rs,35,000 is the market value of the land. In my opinion this document does not represent the market value of the land and construction as the claimants have purchased a running business and as a major part of the consideration can be attributed to the fixtures, fittings, goodwill and the running business. Therefore, the conveyance deed is of little value for proving the market value of the land.
22. ' The learned counsel contended that the potential value of the land has not been taken into consideration, as it is on the main road, in a busy commercial area, where multistoried buildings and shopping complex are being constructed. It seems that the Deputy Commissioner has assessed the value at Rs,7,200. The Deputy Commissioner had taken into consideration the sales of the plots in the area during the period of 1959 to 1969. The learned counsel has contended that most of these plots are not on the main road, and the prices from 1959 to 1969 cannot be made a basis for awarding compensation. The Deputy Commissioner has awarded Rs,60 per sq. yard for residential plots and Rs,200 per sq. yards for commercial plots in Garden West and Rs,240 per sq.yard for commercial plots in Garden East. This is a plot in Garden West, which has its own potential value and is likely to be converted into commercial plot in the near future. The value of the commercial plots has been assessed at Rs,200 therefore, taking into consideration the same potential value its market value should have been assessed at 125 per sq. yards. It can not be assessed at Rs,200 because the claimants would spend some amount for obtaining permission to use it as a commercial plot. The construction on the plot will be assessed in terms of the Award made by the Deputy Commissioner.
23. ' The claimants have not specifically categorized their claim for loss of income separately. However Rs,35,000 as held earlier includes the value of business, fixtures and goodwill, therefore, impliedly compensation by the claimants includes claim for loss of business. The contention of Mr.Muslim Naqvi the learned counsel for K.M.C. that as the construction was unauthorized no compensation is payable may be valid only for awarding compensation for the building and structure. The Deputy Commissioner has however granted compensation for the land and construction therefore, it is to be examined whether the claimants have suffered loss of income. The claimants have produced cogent evidence to establish loss of earning, by stating that restaurant was rented out at Rs,300 p.m. and a Pan shop carved out in the building was let out at Rs,80 per month. The claimants were earning Rs,380 p.m. i.e, Rs,4,560 per annum. In assessing compensation of this nature while estimating loss of earning, depreciation and losses are to be taken into consideration. In the absence of any evidence of this nature the Court is left to estimate the losses to a reasonable figure. In the facts and circumstances of the case Rs,10,000 should be awarded to the claimants for loss of business, and earning.
24. ' Mr.Khalilur Rehman the learned counsel has challenged the award in respect of Plot Nos.377 and 393 Garden West and 460 Garden East. Claimant Saeed Ahmad (Exh.9) owned bungalow on Plot No,460 Garden East. He has stated that all around his house there is a commercial area and out of 1,000 sq. yards 236 sq. yards were acquired. The acquired portion was in front of the plot facing the road, and included part of the constructed portion of the bungalow and two front rooms were partially demolished. The house was constructed according to the approved plan and due to demolition the remaining portion of the rouse has become unsafe. He has claimed Rs,1,000 per sq .yard as compensation on the basis of the market value.
25. ' Mr.Khalilur Rahman the learned counsel for the claimant has contended that the amount awarded @ Rs,60 per sq. yard is too meagre and has not taken into consideration the potential value of the plot. Admittedly it is situated on the main road, and most of the neighboring area has turned into a commercial area. Therefore, for reasons stated earlier it should have been assessed at a higher rate than the residential plots which should have been at Rs,150 per sq. yards. Same formula will apply to claimant Eid Bux in respect of Plot No,377 Garden East.
26. ' The learned counsel also took up the case of the claimant in respect of Plot No,393 Garden West, measuring 2,955 sq. yards out of which 333.37 sq.yards were acquired. This plot was declared as commercial-cum-residential plot and market and flats have already been constructed. The learned counsel contended that the price should have been fixed according to market value of the plot. In that regard the learned counsel has referred to the sale-deed Exh.6/1 in respect of 80 sq. yards in Plot No,376 Garden West. As discussed earlier Rs,35,000 was not the real value of the plot of land. It was in respect of a running restaurant, fixture, fittings, and goodwill and therefore, compensation cannot be granted on that basis. The learned counsel also referred to the evidence of Zahooruddin Exh.5, who has stated that in Garden East, the market value of the plot is at Rs,500 per sq. yard, but as held earlier, his evidence is hardly of any value and cannot be relied upon. So far the potential value of the land is concerned, it has already been declared as commercial-cum- residential plot. Commercially it has already been exploited. No further evidence has been produced to show in what manner its potential value has not been taken into consideration or in the circumstances what is its potential value. In this view of the matter the principle that the valuation should be assessed taking into consideration the potentiality of the plot cannot be applied.
27. ' In reference relating to valuation the burden is upon the claimant to prove that the Collector's award is insufficient and the value of the property has not been assessed according to law. The valuation fixed in the award can be assailed by showing that all the material on record has not been considered or that no reasons for reaching the conclusion has been given in the award. In all cases where award has not been accepted the primary duty is on the claimant to establish the market value of the property. Sections 23 and 24 of the Land Acquisition Act lay down the general principle for determining compensation. The compensation has to be determined according to the market value the land at the date of publication of Notification under section 4(1). The Act does not define 'market value' but as the object of the legislature is to provide lawful and just compensation for the acquisition the Court determined the market value taking into consideration the potential value, special adaptability and better layout for profitable disposition. I determining the market value the existing advantages and disadvantages, defects, and future possibilities have to be taken into consideration. But increase in value or advantage due to execution of the scheme for which the land is acquired has to be excluded and cannot be taken into consideration. Reference can be made to Collector of Darrang v. Phani Bhosan Bose AIR 1955 Assam 124, Sri Raja Byricherla Narayans Gajapatiraju Bahadur Garu v. The Revenue Divisional Officer Vizianagram (known as Chemudu case) I L R 1939 Mad. 532 (P C ).
28. ' In view of the discussion and the principles enunciated above the compensation for commercial plots in Garden East and Garden West and awarded by the Deptuy Commissioner is maintained.
29. The compensation for residential or non-commercial plots in Garden East should be assessed at the rate of Rs,150 per sq. yard. The compensation for residential or non-commercial plots in Garden West should be assessed at Rs,125 per sq. yards. The compensation for the construction as assessed by the Deputy Commissioner is maintained. Reference answered.