This is a reference made by the Deputy Commissioner, Karachi, dated 22nd December 1966 to this Court under section 18 of the Land Acquisition Act in regard to the acquisi--tion of certain lands, situated in Deh Safooran and Deh Mehran, details of which are given here below: Deh Safooran: Deh Mehran.- S. No.AreaAcquiredBalance.
112 21.356.16 15.19 113 7.2 7.2 NIL 114 16.3716.37 NIL 115 24.3624.36 NIL 116 24.2124.21 NIL 117 24.3112.34 118 29.322.29 2030.3 0.3 2040.350.35
2. The land was required for a new runway and taxi-way at the Karachi Airport and is close to the National Highway. Notices under sections 9 and 10 of the Land Acquisition Act were issued to the respondents who appeared before the Deputy Commissioner and filed their written as well as oral statements. Notifications under section 4 of the Land Acquisition Act were issued on 2nd April 1959.
All the claimants, who responded to the notices served on them and are the owners of the land affected . By the notifications and the acquisition claimed compensation at the rate of Rs. 10,000 per acre or Rs. 3 per sq. Yard in Deh Safooran and Rs. 5,000 per acre for that acquired from Deh Mehran. The orders of the Deputy Commissioner said that the reason for these high claims was initially that the land acquired was close to the National Highway, the civil aerodrome and the Model Colony and was thus in a good situation. In respect of the respondents whose land is situated in Deh Mehran, it was stated that the land acquired for the Civil Airport purposes in 1954 was awarded compensation at Rs. 2,000 per acre and that compensation for the land acquired for Drigh Colony had been paid at the rate of Rs. 4,000 per acre. Both the Delis are situated in the Federal Capital Area.
3. In respect of the valuation ultimately arrived at, namely, at the fiat rate of Rs. 2,500 per acre for the land acquired from' Deh Safooran and at the rate of Rs. 1,815 per acre for the land in Deh Mehran, the Deputy Commissioner was influenced, as the order indicates by Ordinance No. XXVI of 1948 and the award was, therefore, based on the rate prevalent on the 31 March 1948. In respect of the lands from Deh Safooran, the further consideration given was that the lands from this Deh were acquired for the Postal authorities and the Civil Aviation Department in 1952 and for the gas pipeline in 1954 and compensation for the land acquired for the Postal authorities was awarded at Rs. 2,500 per acre "as it was situated on the main Provincial Karachi-Hyderabad Road" whilst the land acquired for the Civil Aviation and gas pipeline fell in the interior of the Deh and was awarded compensation at the rate of Rs. 2,000 per acre. These precedents were taken into considera--tion in awarding the flat rate of Rs. 2,000 per acre in Deh Safooran. There was only one precedent in regard to the lands on Deh Mehran, an acquisition made on 16th April 1949 for the Central Ammunition Depot at the rate of Rs. 1,815 per acre as the market rate prevalent on 16th April 1949.
The Deputy Commissioner also awarded 15 % statutory allowance and in addition 6 % interest from the date of possession up to the date of payment as admissible under the provisions of the Land Acquisition Act.
4. The respondents have examined three witnesses in support of their objections, namely, Muhammad Mooss (Exh. 5) a Patwari of Deh Safooran, Abdul Hamid (Exh.6) Tapedar of Deh Thano and Deh Mehran and Abu Bakar (Exh. 7) the Headmen of Natha Khan village. Muhammad Moosa has adduced to the sale effected on 8th September 1963 of about 84 acres and 31 ghuntas of land in Deh Safooran in Survey Numbers adjacent to 112 to 117 and 203 and 204 for a sum of Its. 6,42,000.
This is on the basis of the entries in the Record-of-rights. On 18th October 1952, one Jooma son of Hussain sold two Survey Numbers an area of 3 acres and 13 ghuntas, in Deh Safooran to Essa A. H.
Jaffer and Ishtiaq Ahmad and Ismail Burhani for a sum of Rs. 5,500. Abdul Hamid Tapedar has stated that Deh Thano and Deh Mehran are adjacent to each other and from the Survey records of Deh Thano he stated that on 2-10-47, 1 acre and 9 ghuntas in S. No. 350 were sold for Rs. 20,751 by Amee Bhai Abdul Ali to Amir Chunai. On 14-2-67, 1 ghunta (measuring 125 sq. Yards) was sold by Tayabali Ibrahim Ji and others to Yar Muhammad Ali Muhammad for Rs. 500 in Deb. Thano. On 21- 11-46, one acre and eight ghuntas in S. No. 881 was sold by Alibhal Adamji and others to Naomal Khuihaldas by a registered sale far Rs. 28,323-12-0. He further stated that S. No. 881 in Deb Thano is adjacent to the Highway and that Delis Mehran, Safooran and Thano are adjacent to the Highway.
Abu Bakar (Exh. 7) stated that the land acquired belonged to him and about 21 or 22 others but they had been demanding compensation at Rs. 3 per sq. Yards in both the Dehs, that the land that has been left over is not cultivated and that it was not agricultural land.
5. I have heard Mr. Muhammad Bux Mesawa, learned counsel for the respondents and Mr. Zari for the Deputy Commissioner. It must be noted and indeed has been conceded that the lands in dispute in both the Dehs are situated on the Jinnah Avenue adjoining Model Colony, the Civil Airport and the Security Press. The land therefore had great potentiality for development and I takest judicial notice of the fact that it is in the direction of these lands and towards Malir and Landhi that the City of Karachi has expanded and continues to do so rapidly.
6. The overriding circumstance for the fixation of the Compensation by the Deputy Commissioner as indicated in his order was the Land Control (Capital of the Federation) Ordinance, 1948 (XXVI of 1948) which was in existence when the impugned order of the Deputy Commissioner, dated 24th January 1962 was made. Thereafter, the Ordinance was repealed on 8th September 1964 by the Land Control (Capital of thy Federation) (Repeal) Ordinance, 1964 (Ordinance XII of 1964) published on page 3 of PLD .1965 (Central and Provincial Statutes). The learned counsel for the respondents has argued and .Quite rightly that since Ordinance XXVI of 1948 has been repealed and this reference or revision is a continuity of the proceedings for the fixation of compensation the case of the respondents and their claims for compensation must be decided in the light of their prevalent law as it stands today. It was also urged, that the Repealing Ordinance No. XII of 1964 does not say that any decision taken under Ordinance XXVI of 1948 shall be saved by the Act whilst it was in force, that the purpose of the Ordinance was frustrated by the change of the Capital from Karachi to Islamabad and thus had died its natural death, that it was a bad piece of legislation without legality or validity in law having been passed in clear contravention of the provisions of section 299 of the Government of India Act; 1935, which placed a strict curb on acquisition unless certain provisions were duly completed. Reliance in this connection was placed on the observations of their Lordships of the Supreme Court of Pakistan in Province of West Pakistan v. Salim Ullah (PLD1966SC547), with the High Court observing that the proviso to subsection (2) of section 23 of the Land Acquisition Act was a confiscatory measure.
7. The learned counsel for the respondents also sought support in the decision of two References i.e. No. 405/61, a decision of the late Mr. Justice I. B. Khamisani and No. 1 of 1966 of Mr. Justice Noorul Arfin, the land involved in the former reference being situated in Deh Mehran and in the latter in Dehs Mehran and Thano and has urged that the basis adopted by the Deputy Commissioner for the compensation cannot possibly be sustained and in the context of the established law that no property should be acquired without proper compensation being allowed, that the criterion for the fixation of the compensation in the present case should be on the basis of the sales as are closest in point of time to the notifications issued under sections 4 and 6 of the Land Acquisition Act against the respondents, for these would furnish a safe guidance for the assessment of compensation. The assessm ent of the claim, therefore, will have to be made entirely on the evidence adduced by the respondents for no evidence has been led by or on behalf of the Deputy Commissioner of Karachi and in accordance with the general provisions of the Land Acquisition Act. In the context of the admissions that the National Highway adjoins Deh Safooran and Dehs Safooran, Mehran and Thano are adjacent to the Highway, the sales referred to by the witnesses Muhammad Moosa Pathwari and Abdul Hamid Tapedar will be relevant for the purpose of this order. Abdul Hamid (Exh. 6) has referred to the sales in Deh Thano in 1947 and in 1946 indicating that the price per acre in pre-Partition times or at the time of the Partition several years before the notifications of acquisition were issued in this case were certainly more than Rs. 10,000 per acre or Rs. 3 per sq. Yard. The only objection that the lands effected were nonagricultural land is, in my opinion, of no consequence for the purpose of fixation of compensation since all the lands in this area in these three Dehs are Barani lands, there being no canal water available in the vicinity and that crops only grow after occasional rains and the produce is grass, growing on the land, which is used as pasture or feed for the cattle belonging to the residents and in that sense the lands in dispute are and should therefore be of the same or equal value as those in Karachi.
8. In view of all these circumstances, I am of the view, that the market value of the lands in Dehs Safooran and Mehran should be assessed on the same basis or their sales in those areas from 1949 to 1952. The claim of the respondents must therefore be allowed at the rate of Rs. 2 per sq.
Yard and compensation should be paid to all the claimants at this rate. Some of the respondents have received payments under protest on the 13th December 1962. They will now be paid at this rate with the statutory allowance of 15 % of the amount of compensation in addition interest at the rate of 6 % per annum from the dates on which according to the notices under section 9 of the Land Acquisition Act possession of the lands involved in this reference was acquired and taken possession of by the Deputy Commis--sioner. The Deputy Commissioner is also directed to pay the claimants the costs of the proceedings in this Court.
K. B. A.
S. No.AreaAcquiredBalance.
1639.205.12 4.8 1025.73.39 1.8 3848.98.9 NIL