1. ' Two properties namely Plot No, 37-B/2, P.E.C.H.S., Karachi, measuring about 326.6 square yards with a double-storeyed house standing thereon and Plot No, 37-A42, P.E.C.H.S., Karachi, measuring about 305.52 square yards with three-storeyed house standing thereon, were acquired under the Land Acquisition Act (Act I of 1894). The owner of property bearing No, 37-B/2 was claimant Fazal Karim Abbasi and owner of property bearing No, 37-A/2 was claimant Raja Amir Zaman. One Professor M. I. Malik, tenant of Fazal Karim Abbasi occupying ground floor of Plot No, 37-B/2 also filed an application for compensation and damages. Notices were issued under section 9 of the Land. Acquisition Act, 1894, by the Deputy Collector and Land Acquisition Officer, Karachi, in April, 1975 and pursuant to the service of such notice, claimant Fazal Karim Abbasi filed a statement dated 14-5-1975, in which he made a claim of Rs, 3,82,679.25 and the break-up of this amount is as follows {{TABLE}}
(1) Cost of land 320 sq. Yds. @ Rs, 253 per sq. Yd. ...
(ii) Cost of construction on ground floor area 1976 sft. @ Rs, 75 per sft ..-
(iii) Cost of construction on first floor area 1976.75 sft. @ Rs, 70 per sft
(iv) Cost of staircase tower on 2nd floor area 130 sft. @ Rs, 55 per sft.
(v) Cost of overhead and underground water tanks, lump sum Rs, 5,000
(vi) Cost of compound wall 120 rft. @ Rs, 20 per sft (vii)
2. Cost of steel gate lump sum Rs, 1,500 Total : Rs, 80,000.00 1,48,256.75 1,38,372.50 7,150.00 5,000.00 2,400.00 1,500.00 - I 3,82,679.25 {{TABLE}} ' In this statement of claim it was also mentioned that the ground floor (except garage and servant-quarters) had been rented out to the tenant M. I. Malik and the garage and servant- quarters had been rented out to another tenant M. Ibrahim and that M. I. Malik was paying rent of Rs, 350 per month to owner Fazal Karim Abbasi and the other tenant M. Ibrahim was paying rent of Rs, 125 per month. As required by section 9 of the Land Acquisition Act, 1894, the figures of three years rent paid by the tenants next preceding the date of the statement were given as follows :- Rs,
(a) M. I. Malik 12,600.00 (b)
3. M. Ibrahim 4,500.00 ' It was further mentioned in the said statement dated 14-5-1975 as follows :- "Without prejudice to the above the claimant submits that he was asked to appear before the Karachi Development Authority and he had also raised objection to the plot of land and the building being acquired by the Government. The claimant was informed during the meeting which was attended to by Member Finance, Director Town Planning, Chief Engineer and others that Karachi Development Authority would be willing to pay to the claimant compensation as under :-
(a) Cost of construction per square feet at Rs, 60 for ground floor and Rs, 50 per square feet for first floor.
(b) Cost of land at the rate of Rs, 100 per square yard. The claimant even urged the K. D. A. That if the acquisition is absolutely necessary and legal, then the compensation as offered be reconsidered and enhanced appropriately as per representation of the claimant."
4. ' Along with the statement of claim a certificate of architect Imran Ahmad Farooqi was attached supporting the figures of compensation claimed by Fazal Karim Abbasi. Building plans of the house and the completion certificate was also attached.
5. ' The owner of property No, 37-A/2, P.E.C.H.S., Karachi, namely Raja Ameer Zaman was also served with the notice under section 9 of the Land Acquisition Act and he filed a claim of Rs, 3,93,480 made up of three items as follows :- Rs,
(i) Cost of land @ Rs, 250 per sq. Yd. 76,380
(ii) Cost of construction ... 2,70,300
(iii) Loss of three years rent next preceding the date of notification 46,800 ' As regards the cost of construction he had made the claim in respect of ground floor construction at the rate of Rs, 75 per sq. Ft. First floor covered area at the rate of Rs, 70 per sq. Ft. And second floor covered area at the rate of Rs, 50 per sq. Ft. Apart from this, Rs, 8,000 was claimed on account of electric, water-supply, gas and sewerage lines and Rs, 2,500 for a specially constructed water reservoir of a large size and iron gate fitted in the outer compound walls.
6. ' It was further stated in the statement of claim that ground floor was rented out to one Jamil Malik at the rate of Rs, 500 per month, first floor to tenant Iqbal Masih at the rate of Rs, 550 per month, and the second floor was occupied by the owner himself and the rental value of the same was Rs, 250 per month. It was also mentioned in the statement of claim of Raja Ameer Zaman as follows :- "It will not be out of place to mention that in the middle of 1974 the K. D. A. Called me for negotiations for the compensation. She offered me Rs, 60 per sq. Ft. For the ground floor and Rs, 50 per sq. Ft. For the first floor. For the Second floor she was willing to pay me in lump sum Rs, 25,000.
7. This rate was however acceptable by me but they were paying me for the land at Rs, 100 per sq.
8. Yard to which I disagreed as it was very low. My demand was Rs, 250 per sq. Yard. Since the negotiation became unsuccessful the matter was referred to you for acquisition.
9. ' Besides the above, I request that my tenants may also be provided alternate sites to settle themselves in any township of Karachi."
10. ' In respect of the said claim, Raja Ameer Zaman filed two certificates of Matin Associates, Architects and Engineers. Professor M. I. Malik, tenant of ground floor of house No, 37-B/2, P.E.C.H.S., Karachi (tenant of Fazal Karim Abbasi) also addressed an application dated 20-5-1975 to the Collector of Karachi and titled the application as follows :- "Application under section 9 (1), (2), (3); section 10(1) and section 11 of Land Acquisition Act, 1894 by Professor M. I. Malik, Tenant (Ground Floor) of House No, 37-B-2, P.E.C.H.S., Karachi."
11. ' In this application, Professor M. Malik stated that he was a tenant in occupation of ground floor of the house in question for the last ten and half years i,e, since 20-11-1964 and he filed an attested copy of the lease agreement with this application. It was further stated that he had been informed by Fazal Karim Abbasi, the landlord, that he had been served with a notice by the Collector under section 9 of the Land Acquisition Act, 1894, to the effect that the plot of land on which the said house stands was to be acquired by the Government for public purpose and that the tenant should make necessary arrangements for shifting himself and his family to any other place. It was further averred by Professor M. I. Malik that he was an interested person who would be vitally affected by the acquisition being the occupier of the ground floor of the premises for the past over 10 years and he, therefore, requested the Collector to allow him to file a statement under section 9
(1) and subsequent apportionment under section 11(iii) of the Land Acquisition Act, 1894. Alongwith this application a statement giving details of his claim for compensation was filed by Professor M. I.
12. Malik. The claim for compensation was titled as under section 9(1) and section 11(iii) read with section 23(1) of the Land Acquisition Act. In the statement of claim Professor M. I. Malik stated that he was a pensioner of the Pakistan Air Force having served as a commissioned officer for 16 years and be had retired in 1960 from the Air Force as a Director of Studies, P.A.F. College, Risalpur and at that time he was holding a rank of Wing Commander and after retirement he joined Abbott Laboratories (Pakistan) Ltd., Karachi, as a Production Manager and then he became the Founder- Principal of the Dawood College of Engineering and Technology, Karachi, and in these capacities he was getting a salary of Rs, 2,000 per mensem, plus fringe benefits in addition to his Air Force pension of Rs, 322 after commutation. He had further stated that he had given on rent ground floor of the house in question in November, 1964 at a monthly rent of Rs, 350 and that he had to the pension drawn by him he was earning part of his livelihood from his office set up in the rented premises and this business was mostly done on the Telephone No, 434977, which facility he enjoyed for the past about ten years in the said premises. His grievance was that as a result of compulsory acquisition of the premises in question by the Government, he would be forced to shift his residence and place of business subjecting him to an unbearable additional expenditure. He averred that the cost of living index had arisen four-fold during the past eight years and rents had more than doubled during the same period, and the current market rate of comparable accommodation in the locality was generally rupees eight hundred fifty to rupees nine hundred per mensem which would compel him to incur an additional expenditure of at least rupees five hundred per month on accommodation, He made a total claim. Of Rs, 73,000 as follows :- {{TABLE}} Rs,
(i) Additional expenditure on rent at Rs, 500 per month for ten years 60,000.00
(ii) Compensation for loss of business and telephone ... 10,000.00
(iii) Payment to the movers for packing and transportation. 2,000.00
(iv) Loss of standing fruit trees 1,000.00 Total 73,000.00 {{TABLE}} ' The claimants appeared before the Deputy Collector and Land Acquisition Officer (East) Karachi, who gave his award dated 10-2-1976. The Land Acquisition Officer did not accept the rates claimed by the two owners for assessing the market value of the land and he awarded compensation for the plots of land at the rate of Rs, 150 per sq. Yard. As regards market value of the buildings on the two plots, the Land Acquisition Officer did not accept the claims of the two owners but relied upon the assessm ent of the District Engineer of Peoples District Council, Karachi. For the covered area on ground floor the assessm ent of the District Engineer was Rs, 55 per sq. Ft. And for first floor Rs, 50 per sq. Ft. For both the houses i,e, Plots Nos. 37-A/2 and 37-B/2. The District Engineer had assessed the covered area on second floor on Plot No, 37-A/2 at Rs, 15 per sq. Ft. But this was rejected by the Land Acquisition Officer on the ground that the temporary construction raised by the owner on the second floor of the Property No, 37-A/2 was unauthorised and, therefore, the owner was not entitled to any compensation.
13. ' The claim of the tenant M. I. Malik was disposed of by the Land Acquisition Officer in the following words :- "The tenant Mr. M. I. Malik has produced a photostat copy of the agreement executed between him and the landlord. It shows that he has been residing in ground floor of the house since 20-11-1964 on payment of rent L the rate of Rs, 350 per month. It is correct that after the passage of about 11 years, the cost on account of rent has gone considerably high. The tenant will have therefore to bear some loss in procuring residential accommodation for him which will be certainly at a higher rate of rent. The tenant deserves to be compensated as provided by clause fifth of section 23 of the L. A. Act. I, therefore, award a compensation of Rs, 2,000 (Rupees two thousand only) to him in lump sum."
14. ' The Land Acquisition Officer granted rupees one thousand as compensation to the tenant in respect of fruit trees as claimed by tenant M. I. Malik but rejected the other two claims made by him observing that they were not entertain able under the Land Acquisition Act.
15. ' The Land Acquisition Officer also allowed 15 per cent statutory allowance in respect of the compensation assessed by him for the land and constructions for payment to the two owners.
16. ' The three claimants namely the two owners and the tenant M. I. Malik filed objections before the Collector (East) Karachi against the award of the Deputy Collector and Land Acquisition Officer, who made the present reference to this Court under section 19 of the Land Acquisition Act, 1894. In this reference the three claimants gave evidence before this Court and on behalf of Raja Ameer Zaman one Real Estate Agency agent, Rana Anis Ahmed also gave evidence. On behalf of Deputy Commissioner (East), Karachi, Ejaz Ahmad Khan, Sub-Engineer, District Council, Karachi, gave evidence. No evidence was led before this Court on behalf of K. D. A. I have heard at length the arguments of Mr. Akhtar Mahmood, learned counsel for claimant Fazal Karim Abbas' ; Mr. Z. U.
17. Ahmad, learned counsel for claimant Raja Ameer Zaman and tenant Professor M. I. Malik ; Mr. Safdar Hussain Fani, learned counsel for the Deputy Commissioner, (East) Karachi ; and Mr. Mirza Yakoob Baig, learned counsel for the K. D. A.
2. I first propose to consider and give my decision on the following three legal points/objections raised before me :-
(a) Mr. Mirza Yaqoob Baig, learned counsel for K. D. A., for whom the properties in question have been acquired by the Provincial Government, submitted that the provisions of Land Acquisition Act, 1864 stand modified in terms of the modifications specified in the Schedule to the K. D. A. Order, 1957 (President's Order No, 5 of 1957), whenever any property is acquired for K. D. A. And in this case also payment of compensation is to be assessed in the light of the modified provisions of the Land Acquisition Act. Article 95(a) of K. D. A. Order is as follows :- "For purposes relating to the acquiring of land by the Authority (i,e, K. D. A.) under the Land Acquisition Act, 1894 (1 of 1894)-
(a) the said Act shall be subject to the modifications specified in the Schedule to this Order."
18. In the Schedule to the K. D. A. Order, various modifications to the Land Acquisition Act are specified.
19. These modifications are many and extensive in. Nature. On a perusal of the modifications to section 23 of the Land Acquisition Act, it is found that if the modified section 23 were applicable for determining compensation, the owner, whose property has been acquired, will get much less compensation than, in case the unmodified section 23 were applicable.
20. ' I have not been persuaded to accept the contention raised by Mirza Yaqoob Baig. Reference may be made to Article 93 of the K. D. A. Order which reads as follows :- "The Authority (i,e, K. D. A.) may, with previous sanction of the Provincial Government, acquire for carrying out the purposes of this Order land under the provisions of the Land Acquisition Act, 1894 (1 of 1894) or any other law for the time being in force."
21. ' In the instant case, the properties have not been acquired by K. D. A. But have been acquired by the Provincial Government. It was admitted by Mirza Yaqoob Baig that the properties were not acquired by K. D. A. But were acquired by the Provincial Government for K. D. A. It is clear that action for acquiring the properties in question was not taken by K. D. A. Pursuant to the provisions of the K.
22. D. A. Order and/or the modified provisions of the Land Acquisition Act as specified in the Schedule to the K. D. A. Order. Admittedly there is no notification of K. D. A. Evidencing the acquisition of the properties of the claimant. It appears that K. D. A. Did not exercise its powers under the K. D. A. Order for acquiring these properties as no Tribunal has yet been constituted by the Provincial Government as required by Article 94 of the K. D. A. Order. Information that such Tribunal has not been constituted so far by the Provincial Government has been given by Mirza Yaqoob Baig, Advocate. As admittedly this is not a case of acquisition under Article 93 of the K. D. A. Order, the modified provisions of the Land Acquisition Act, 1894 as specified in the Sdhedule will not govern the assessm ent of compensation. The unmodified provisions of the Land Acquisition Act, 1894 will be applicable for assessing compensation payable to the claimants in this case.
23. ' Mirza Yaqoob Baig had also relied upon a case of Deputy Commissioner Karachi v. Sadiq Ali (1).
24. However, I find that there is no discussion on this point in the report.
(b) As regards the tenant, Professor M. I. Malik, a preliminary objection had been raised by Mr. S. H.
25. Fani, learned counsel for the Deputy Commissioner, that a tanant of an acquired property cannot be a claimant for compensation under the Land Acquisition Act, 1894. According to Mr. S. H. Fani, only a "person interested" can competently make a claim for compensation under the Land Acquisition Act and he invited attention to section 3(b) of the Act which defines the expression "person interested" including including all persons claiming an interest in compensation to be made on account of the acquisition of land under the Act. This subsection further declares that a person shall be deemed to be interested in land if he is interested in an easement affecting the land. Mr. Fani argued that a tenant did not fall within the meaning of "person interested". Reliance was also placed on the case of Hamid Elahi v. Land Acquisition Collector (2). This D. B. Authority of Lahore High Court is not relevant. It was not dealing with the case of a tenant. It does not lay down that tenants are not "persons interested". On the contrary there is another judgment from Lahore High Court in the case of Muhammad Amin Khan v. Government of West Pakistan (3), which is nearer to the point being considered. It was held in this judgment that a tenant is an interested person. Then reference can also be made to section 10 of the Land Acquisition Act which more or less specifically refers to tenants as persons possessing interests in land. Contention of Mr. S. H. Fani that a tenant is not a "person interested" and, therefore, not entitled to claim compensation, is without merit and is not accepted.
(c) While arguing the case of tenant Professor Mr. M.
1. Malik, Mr. Z. U. Ahmed had submitted that the restriction in section 25(l) of the Land Acquisition Act, 1894 did not come in the way of Professor Malik as no notice had been served upon him and although in his statement of claim before the Land Acquisition Officer the tenant had claimed only Rs, 73,000 in his objections to the award he has escalated his claim to Rs, 1,33,537.50. Now section 25 (1) lays down that where the claimant has made a claim for compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court shall not exceed the amount so claimed. According to Mr. Z. U. Ahmed, in this case no notice under section 9 was served upon the tenant, Professor M. I. Malik, and as such the bar against claiming or being awarded more than what was originally claimed is not applicable. Learned counsel also relied upon the case of Prasannakumar Datta v. Secretary of State (4). I have perused this judgment. It does not hold that if a notice under section 9 is not given to a claimant, the bar in section 25(1) will not apply. In the present case, notice under section 9 had been served on the owner of the house namely Fazal Karim Abbasi who informed the tenant Professor Malik and this fact finds mention in the application of the tenant. In response to such notice under section 9, tenant M. I. Malik filed his claim as is apparent from the title and contents of his application. In my view, in the c facts of this case, therefore, the bar contained in section 25(1) remains applicable to the claim of tenant M. I.
26. Malik. He cannot be awarded more
(1) PLD 1973 Note 3 at p. 11 (2) PLD 1978 Lah. 393
(3) PLD 1966 Lah. 111 (4) AIR 1934 Cal. 525 ' than Rs, 73,000, which was the amount originally claimed by him in his statement of claim.
3. Coming to the scope of proceedings under section 18 of the Land Acquisition Act, 1894 and the principles for determination of compensation payable to claimants in connection with acquisition of properties, reference' may here be made to the case-law cited by the learned counsel _appearing for the parties.
27. ' Mr. Akhtar Mahmud Khan, learned counsel for claimant/owner Fazal Karim Abbasi, relied upon the following judgments :-
(i) Gajapatiraju v. Revenue Divisional Officer AIR 1939 P C 98.
(ii) Province of Punjab v. Muhammad Fazil PLD 1968 Lah.
28. 1360..
(iii) Muhammad Saeed v. Deputy Commissioner PLD 1969 Kar.
29. 314.
(iv) Collector of Karachi v. Central Bank of India PLD 1971 Kar.
30. 560.
31. ' Mr. Z. U. Ahmed, learned counsel for claimant/owner Raja Ameer Zaman and claimant/tenant Professor M. I. Malik, referred to the following reported judgments :-
(v) Province of Punjab v. Sher Muhammad PLD 1983 Lah.
32. 578.
(vi) Province of Punjab v. Muhammad Ishaq PLD 1984 Lah.
33. 261.
(viii) Habibullah Khan v. Callector Quetta PLD 1984 Quetta 11.
34. ' Mr. S. H. Fani, learned counsel for the Deputy Commissioner placed reliance on the following judgments :-
(viii) Deutsche Dampschiffaharts-Gesellschaft v. Central Insurance Company PLD 1975 Kar.
35. 819.
(ix) Muhammad Yusuf v. S. M. Ayub PLD 1973 SC 160.
(x) Abdul Rahman v. Muhammad Usman 1982 CLC 1128.
36. ' Mr. S. H. Fani also relied upon PLD 1983 Lah. 578 and PLD 1984 Quetta 11, which judgments had been cited b) the learned counsel for the claimants. Mr. Mirza Yaqoob Baig, learned counsel for K. D.
37. A., had adopted the arguments of Mr. S. H. Fani in connection with the assessment of compensation and admissibility of certain pieces of evidence.
(i) According to Mr. Akhtar Mahmud Khan the leading case on the interpretation of sections 23 and 24 of the Land Acquisition Act is AIR 1939 P C 98. It was laid down by the Privy Council in this judgment that compensation must be determined by reference to the prate which willing vendor might reasonably expect to obtain from a willing purchaser. It was also observed that land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined but also by reference to the uses to which it Is reasonably capable of being put in the future and that the value of potentiality of land must be ascertained by the arbitrator on such materials as are available to him and without indulging in feats of the imagination.
(ii) In PLD 1968 Lah. 1360, a Division Bench judgment of the Lahore High Court, after review of case- law and also citing AIR 1939 P C 98 with approval, Mr. Justice Muhammad Akram, who authored the judgment, summarized the principles in paragraph 26 of the judgment, which is reproduced here :- "Under section 23 of the Land Acquisition Act, 1894 the endeavour has always, been to determine the amount of "compensation" to be awarded for the acquired land. It is the assessment of the equivalent in terms of money for the land compulsorily acquired. It does not mean simply the value of the land according to its present disposition. It would include all the future possibilities on which a prudent purchaser would calculate and a vendor would base his expectations, both sides being actuated by business principles. The potential value of the land or in other words 'any other more beneficial purpose to which in the course of events it might within a reasonable period be applied', must necessarily enter into the bargain and is an element to be considered in arriving at its market value. But the too remote, imaginative and speculative possibilities of the land cannot' be accepted. The true test is to ascertain what `a willing vendor might reasonably expect to obtain from a willing purchaser' in a 'friendly negotiation' for his land. The adventitious value of the land with all its advantages and disadvantages must be calculated. The title of owner of the land under acquisition coupled with all the restrictions, reservations and the risks to which it is subject has got to be weighed and calculated in arriving at its market value."
38. (it PLD t964 Kar. 314, a Division Bench decision, dealt with the scope of powers and jurisdiction of the Court in proceedings under section 18 of the Land Acquisition Act. It was held that the Court is not empowered to go behind the reference so as to examine either the legality of the acquisition proceedings or the legality and validity of the award except at the instance sofa a person interested, and that too only in respect of the matters specified in section 18, and, therefore, it follows that the Court has no polio to remand the case back to the Collector for a fresh decision. It was further observed that the duty of the Court is to-proceed to give its own award in the light of the provisions and principles embodied in Part III of the Land Acquisition Act.
(iv) PLD 1971 Kar. 560 is also a Division Bench judgment. It was observed in this judgment that it is a matter of common knowledge that the rates in the area which is adjacent to the main city of Karachi have been increasing from year to year and the potential value of the land in question (i,e, agricultural lands in Deh Thano and Deh Mehran of Karachi .Taluka), was always great. This is also a very relevant consideration in determining the market value of the land.
(v) PLD 1983 Lab. 578 was relied upon by the learned counsel for the claimants and also by Mr. S. H.
39. Fani, who appeared for the Deputy Commissioner. It was held in this .Case that - the position of a party seeking reference is that of plaintiff and it is for that party to show that the award made by the Collector is illegal or inadequate and in case he fails to discharge its burden, award of. The Collector is to be confirmed. As regards assessment of compensation it was observed that sections 23 and 24 of the Land Acquisition Act are designed to provide fair compensation to owners and measure of fair compensation-is value of the property in open .Market which seller voluntarily entering into transaction of sale can reasonably demand from purchaser with reference to use to which property can be put either immediately or in near -future, as no buyer will pay price based on speculative qualities of property.
(vi) PLD 1984 Lail, 261, a Division Bench judgment of the Lahore High Court, supports the contention raised on behalf of the claimants that while determining the market value of land, the true character and potential of the land are also to be considered.
(vii) PLD 1984 Quetta 11, a Division Bench judgment of the Baluchistan High Court was relied upon by the counsel for the claimants and also by Mr. S. H. Fani for the Deputy Commissioner. It was held here that a claimant in a reference under section 18 of the Act is plaintiff before the Court and the burden is upon him to show that assessment of the Collector is based on no good principles or is too low. It was further observed that the fair compensation for the acquired property is to be determined with reference to the use which the property can be put to either in immediate use or in near future but not on the basis of speculative qualities of the property.
(viii) In PLD 1975 Kar. 819, relied upon by Mr. S. H. Fani for the Deputy Commissioner, it was held by a learned Single Judge that evidence of entries in some books of account produced through a witness who had nothing whatever to do with such entries, was inadmissible. Then, with reference to a copy of the shipper's invoice to the consignee, produced in evidence, it was held that as an objection had been taken about its production and it was insisted that the invoice be proved strictly, and as the document had not been proved through its authour, namely, the German Shipper, the document was not proved and was inadmissible.
(ix) In PLD 1973 SC 160, by a majority view, it was held that documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwritings of persons alleged to have signed or written then, even if such documents are brought on record and exhibited without objection.
(x) 1982 CLC 1128 is a decision of a learned Single Judge of this Court where it was held that documents brought on record and marked as exhibits, if not proved, cannot be looked into to establish their contents.
4. On an analysis of the case-law, certain general principles appear to be well-settled about the scope of proceedings and jurisdiction of Court under section 18 of the Land Act, 1894 and the basis for determination of market value under sections 23 and 24 of the Act and these are enunciated here : -
(a) In a reference under section 18 of the Land .Acquisition Act, 1894, the Court is not empowered to go behind the reference to examine the legality of acquisition proceedings.
(b) The award of the Collector or Land Acquisition Officer can be challenged only at the instance of a "person interested".
(c) Tenant of a property acquired is a "person interested" and as such D he can competently maintain a claim for compensation for his right/interest in the property.
(d) The Court has no power to remand the case back to the Collector for a fresh decision.
(e) Status of a party seeking reference objecting to the award of the Collector or Land Acquisition Officer is that of a plaintiff. He has to establish before the Court that the award is illegal or inadequate. If this burden is not discharged, the Court will confirm the award.
(f) Market value of land or fair compensation to be determined under sections 23 and 24 of the Land Acquisition Act is the price which a willing vendor might reasonably expect to obtain from a willing purchaser.
(g) While determining market value or fair compensation of land reference is to be made to the present use and also to use to which the land can be put in the near future.
(h) Potential of the land is a relevant factor to be considered for arriving at the market value of the land but speculative qualities of land acquired are not to form the basis for assessing its market value.
5. In the light of the aforesaid principles it is proposed to examine the case of the claimants on merits. I will first deal with the question of the market value of the two plots of land at the date of the notification under section 4(1) of the Land Acquisition Act. The two claimants had claimed compensation for acquisition of land @ Rs, 250 per square yard. The Lar 5 Acquisition Officer in his award dated 10-2-1976 awarded compensation for land @ Rs, 150 per yard. I, however, find that there is no basis for fixing the .Market value at Rs, 15B per square yard. It is now to be seen whether claimants have brought on record evidence establishing the rate of Rs, 250 square yard. The plots were situated on the crossing of Tariq Road and Shahra-e-Qaideen, Karachi. According to the evidence on record both the plots were ideally situated with roads on two or three sides. There is also evidence on record that more or less the entire nearby area had become commercial or was in the process of commercialization at the time the plots were acquired. Claimant Raja Amin Zaman had produced lists and 'letters of P. E. C. H. Society showing prices at which commercial plots on Shahra-e-Qaideen were sold by public auction between 1970 to 1972. The prices ranged between Rs, 215 to Rs, 400 per square yard. According to Estate Broker Rana Anees Ahmed (Exh. 2), who was examined in this Court as a witness by claimant Raja Ameer Zaman, the market rate of such plots in 1975 was Rs, 350 per square yard. Then Raja Ameer Zaman (Exh. 4) in his evidence deposed that the market rate, at the time the plots were acquired, was Rs, 300 to Rs, 350 per square yard. On behalf of the Deputy Commissioner, one Ejaz Ahmed Khan, Sub-Engineer, District Council, Karachi gave evidence. He was the solitary witness on behalf of the Deputy Commissioner.
40. He frankly admitted in cross-examination that he was working in rural area and he could not say whether the prices of land in P. E. C. H. Society had increased or decreased during 1960-1970.
41. Evidence of Ejaz Ahmed Khan is of no help to the Deputy Commissioner and K. D. A. As regards the market value of lands in question.
42. The two claimants/owners have proved as plaintiffs in these proceedings through evidence that the rate of Rs, 150 fixed by the Land Acquisition Officer is too inadequate and that the market rate of the plots at the relevant time was more than Rs, 250 per square yard, which is the rate that has been claimed by the two owners. The fact that the area was commercialized or was in the process of commercialization definitely increased appreciably the price of the lands in that area. Then the evidence adduced by the claimants/owners that the market value of land exceeded Rs, 250 per square yard has not been rebutted by the Deputy Commissioner or K. D. A. Evidence of Ejaz Ahmed Khan on behalf of Deputy Commissioner is of no consequence as he had no clue about the prices of land in the area or for that matter in Karachi.
43. ' Claim of Raja Ameer Zaman and Fazal Karim Abbasi as regards compensation for their lands @, Rs, 250 per square yard is accepted.
6. Apart from the lands, market value of the buildings constructed on the two- plots was also to be assessed. The Award dated 10-2-1976 shows that the claimants had requested the Land.
44. Acquisition Officer to evaluate the building through a qualified engineer. The District Eneineer of the District Council Karachi was asked to visit the two properties and after physical measurement give his assessm ent "as to the market value of these properties as prevalent on 18-3-1975, taking into consideration the nature and extent of construction and...Also the depreciation thereof." The District Engineer assessed the market rates as under :----
(i) For the covered area on the ground floor of the two properties Rs, 55 per square foot including- cost of compound walls, overhead and underground tanks, staircases, electric wiring, water supply and sanitation and cost of main gates.
(ii) Covered area on the first floor of the two properties was assessed (cmr,,. Rs, 50 per square foot.
(iii) Covered area on the secondfloor of house No, 37-A was assessed g. Rs, 15 per square foot."
45. ' The above rates were accepted by the Land Acquisition Officer with two reservations. Firstly, second floor construction on Plot No, 37-A was found to be unauthorised and as such no compensation was granted for such construction bust the owner was given the benefit of taking away the material used in the construction of second floor. Secondly, depreciation @ 14 % per annum was deducted from the assessed cost of buildings.
46. The claimants being plaintiffs in the reference before, this Court, the burden was on them to prove that the rates assessed by the District Engineer and accepted by the Land Acquisition Officer are on the low side and the claimants are entitled so higher rates as claimed in their statements of claim. However, I find that this burden has not been discharged by th claimants. Requisite evidence has not been brought on record in .That context. Only the two claimants gave evidence before this Couit. Thei evidence did not establish that the rates accepted by the Land Acquisition Officer were low. Neither did their evidence prove the rates claimed by F them. They had relied upon certificates of architects but these architect did not give evidence. For the purpose of proving the ,rates claimed, merely filing of architect's certificates did not discharge the burden that lay on the claimants. The -rates for ground floor and first floor constructions of the two properties accepted by the Land 'Acquisition Officer are, therefore, not liable to be rejected. I also find no reason to interfere in the decision of the Land Acquisition Officer in rejecting the claim of Fazal Karim Abbasi for unauthorised second floor construction.
47. However, the deduction on. Account of depreciation (a), 14% per annum for 12 years in respect of the buildings is not sustainable. The District Engineer, District Council, Karachi had been asked by the Land Acquisition Officer to assess the market rate of the constructions as ,on 18-3-1975 taking into consideration the nature and extent of the buildings and also the depreciation thereof. Rates were assessed by the District Engineer on this basis and as such no question arose for making any further deduction on account of depreciation Reduction of the compensation on account of depreciation is, therefore, set aside.
7. The claim of tenant Professor M. I. Malik may now be examined.' He had claimed Rs, 60,000 on account of additional expenditure on rental!! @ Rs, 500 per month for ten years Rs, 10,000 as compensation for loss of business and telephone, Rs, 2,000 as payment to the movers for packing and transportation, and Rs, 1,000 for loss of standing fruit trees. The Land Acquisition Officer granted only two of the four claims of the tenant and awarded Rs, 1,000 for loss of fruit growing trees and Rs, 2,000 under fifth clause of section 23 of the .Land. Acquisition_ Act on account of expenses incidental to the change of residence by the tenant on account of acquisition of the property. The other two claims of Rs, 60,000 and Rs, 10,000 were rejected as being non-maintainable.' Claim of Rs, 10,000 on account of loss of business and telephone is not covered by any of the clauses of section 23 and as such it was not maintainable. However, the claim of Rs, 60,000 is maintainable under the first clause of section 23. What the tenant was claiming was fair compensation for his tenancy rights which stood acquired on account of acquisition of the property. Being a "person interested", he was entitled to be compensated for his interest in property i,e, his 'tenancy rights. He assessed his tenancy rights at Rs, 60,000. The basis for reaching this figure was that rent of comparable accommodation in the locality was Rs, 850 to Rs, 900 per month as against Rs, 350 per month being paid by him for the tenement,. In his occupation. This extra expense of about Rs, 500 per month for 10 years amounted to Rs, 60,000 and this was his assessment of the market value or fair compensation for acquisition of his tenancy rights. It has to be kept in mind that Professor M, I. Malik was the tenant in the said premises since 1964 and that his rights were protected by the Rent Restriction Ordinance of 1959. The rent of comparable accommodation as Rs, 850 to Rs, 900 per month has not been controverted on behalf of Deputy Commissioner or K. D. A. In my view the tenant has proved through evidence that Rs, 60,000 is the market value or fair compensation for acquisition of his tenancy rights to which amount he is entitled. On this amount of Rs, 60,000 which is granted to the tenant under the first clause of section 23, the tenant will also be entitled to 15% statutory allowance under section 23(2).
48. 8.- The award dated 10-2-1976 is accordingly altered and amended as follows :--
(i) The market value of the two plots is increased from Rs, 150 to Rs, 250 per square yard. On the increased amount also the claimants/owners will be entitled to 15% statutory allowance under section 23(2).
49. (ii)Deduction @ 1 %,per annum on the market value of the buildings our account of depreciation is set aside. There will be no deduction on account of, depreciation. Market value of -the buildings at the rates allowed by the Land Acquisition Officer is otherwise maintained.
(iii) The tenant, Professor M.
1. In addition to Rs, '3,000 awarded by .The Award dated 10-2-1976, is granted Rs, 60,000 for acquisition of his tenancy rights and on this amount of Rs, 60,000, the tenant will be entitled to 15% statutory allowance under section 23(2).
50. (iv)t The three claimants will also be entitled to interest @ 6% per annum on the excess amounts to which they have become entitled under this judgment from the date possession of the properties was taken over till the date the excess payment is made in Court.
51. ' The parties will bear their own costs.