' ABDUL SHAKURUL SALAM, J.--In the two appeals (CAs.397 and 398 of 1989) the controversy is about the compensation payable for the compulsorily acquired land.
2. Relevant facts for the disposal of these appeals are that the Land Acquisition Collector, Highway Department, for the public purpose of construction of new carriage way between Lahore and Sheikhupura, acquired lands of the respondents (in the first appeal) measuring 225 Kanals 9 Marlas. The Chief Land Acquisition Collector gave his award on 18-3-1976 assessing culturable land at Rs,34,500 per acre and unculturable land at Rs,17,250 per acres including 15% compulsory acquisition allowance. On the motion of the respondents, the matter was referred under section 18 of the Land Acquisition Act, 1894 to the learned Senior Civil Judge, Sheikhupura. He framed various issues. The same day respondents put in an application for appointment of a Local Commissioner.
It was allowed and Mr.Muhammad Afzal, Advocate was so appointed. Before him, nine witnesses and Exs. P2 to 9 were produced to show the market price. The Local Commissioner submitted his report on 13-7-1976. He appeared as AW 1 to prove his report. Muhammad Anwar AW 2, Muhammad Ghafoor AW 3, Said Ahmad AW 4, Essa AW 5 and Akbar Ali one of the land owners appeared in support of the case of the land-owners. The acquiring authority the Provincial Government (the appellants in the first appeal) produced Muhammad Rafique Patwari as RW 1 and Zubair Ahmad, SDO RW 2 and produced Ex.D1 to Ex.D19. It also raised objections to the report of the Local Commissioner. However, the Additional Government Pleader made a statement on 14-1-1977 that he did not want to produce any evidence in support of the objections.
3. The main question was and is the assessment of compensation for the acquired land. On the basis of the evidence produced by the land-owners and the report of the Local Commissioner, the learned trial Court found that "the land in dispute is situated in a densely-populated area surrounded by factories and colonies connected with metalled roads". Further, it was observed that the acquiring authority had "failed to produce any evidence either oral or documentary to controvert the conclusions of the Local Commissioner based on local inspection and recording of evidence that the value of the land should be assessed at Rs,750 per Marla". Although it was found by the Local Commissioner that the land was suitable for building site yet as it was being used for agricultural purposes at the time of acquisition, the learned trial Court allowed compensation as for culturable land at Rs,40,000 per acre and for non-culturable land Rs,24,000 per acre, plus 15 per cent. Compulsory acquisition allowance. This is vide judgment and decree, dated 24th March, 1977.
It was challenged by the Provincial Government--the acquiring authority vide R.F.A. No,157 of 1977 which was dismissed on merits by a learned Division Bench of the Lahore High Court on 13-6-1981.
Civil Petition for Special Leave to Appeal No,943 of 1981 was also dismissed by this Court on 23-2- 1987.
4. The land-owners, i,e., the respondents had also filed R.F.A. No,63 of 1977 which was dismissed for deficiency in court-fees on 13-6-1981, but the judgment was set aside by this Court in Civil Appeal No,171 of 1987 on 14-2-1989 and case remanded for allowing making up of the deficiency in the court-fees. This was done and the appeal was disposed of vide judgment and decree dated 24-6- 1989 of the learned Lahore High Court. This judgment and decree dated 24-6-1989 is challenged by the acquiring authority Province of Punjab through Civil Appeal No,397 of 1989.
5. The learned Advocate-General contended that the learned Judges of the High Court were in error to have treated the land as building site. Compensation should have been allowed as agricultural land because it was so being used at the time of acquisition. He has taken us through the evidence produced by the parties and the report of the Local Commissioner.
6. The finding of the learned lower appellate Court is perfectly in accord with the facts on the spot found by the Local Commissioner. Objections were though filed but the learned counsel for the appellant made a statement before the trial Court on 14-1-1977 that he did not wish to produce any evidence in support of the objection. Nor was the Local Commissioner asked any question about the nature of land, whether agricultural or building site. Only relevant question was whether the value of the land was exaggerated, which was answered in the negative. The learned Judges referred to Order XXVI, Rule 10(2), C.P.C. And held that "the report of the Local Commissioner as well as the evidence recorded by him can be taken as evidence in the case and that being so in considering the said evidence which had gone unrebutted from either side the same was sufficient on the strength of which findings could be recorded by the learned trial Court justifiably under the law". The learned Judges, further, observed that "the learned trial Court found that the evidence produced by the land-owners before the Local Commissioner and even his statement recorded in the Court when he was examined in support of his report, was not successfully challenged in cross- examination by the (then) respondents "the acquiring authority". It has been held by the Privy Council in Chandan Mull Indra Kumar and others v. Chiman Lal Girdhar Dad Parekh and another (AIR 1940 P C 3) that "interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of task was proved by his report, and who had not blindly adopted the assertions of either party." In the case in hand, the Local Commissioner was not even cross-examined on the point by the learned Additional Government Pleader. Besides the other evidence of the land-owners, even the witness of the appellant R.W.1, Muhammad Rafique, Patwari, Halqa, had stated that "it is correct that the entire land of the petitioner measuring 198 Kanals 1 marla which has been acquired by the Government is situated close to the Lahore- Sargodha Road. Only the land near the canal is at a little distance from the metalled road but the remaining entire land runs parallel to the Lahore-Sargodha Road. The land of the petitioners terminates at a distance of about 2 Killas from Dawood Harcules Factory and the Petrol Pump. The Abadi known as Babay-De-Kutia adjoins the Petrol Pump. There are shops near the Petrol Pump but I do not know their numbers. I cannot say if the rent of these shops is Rs,200 per month. I cannot say whether urban area of Sheikhupura starts from the Dawood Factory and the octroi post is also there. It is correct that a grid station is situated on the eastern side of Dawood Factory. It is also correct that a tentage factory is situtated adjoining the Dawood Factory near the grid station. It is correct three tanneries are working at a distance of three squares from the Dera of Khasra No, 140/25". When land is so situtated that it is closely surrounded by factories, grid station, shops, Abadis, even though it may not be built upon for the time being and used for agricultural purposes, yet it is potentially a building site and the learned Judges of the High Court were perfectly right in so holding. The learned Judges observed that the learned trial Court did not base its finding on the evidence and report of the Local Commissioner that the land was building site for the reason that it was being used for agricultural purposes at the time of the acquisition. Reference was made by the learned Judges to the judgment of this Court in Fazalur Rahman and others v. General Manager, S.I.D.B and another PLD 1986 SC 158, wherein it was laid down that the 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 with reference to the uses to which it is reasonably capable of being put in the future". The learned Judges concluded that "examining the evidence as a whole we are convinced that the land had acquired the status of factory area and was rightly held by the Local Commissioner that it be assessed as Factory Area". Reappraisal of the entire evidence on record leaves no doubt that the finding is well-based. The price assessed is by no means excessive either.
The land-owners had claimed Rs,6,000 per marla but were allowed only Rs,750 per marla for the reason that that was the price assessed by the Local Commissioner and had not been objected to by the land-owners.
7. In the above circumstances, there is no force in the contention of the learned Advocate-General.
Therefore, Civil Appeal No,397 of 1989 is dismissed.
8. The other appeal filed by the land-owners bearing Civil Appeal No,398 of 1989 for enhancement of the compensation awarded by the learned High Court is barred by time for 38 days but the delay is condoned in view of the reasons given in the application supported by medical evidence.
However, the contention of the learned counsel for the appellants for enhancement of the compensation is without force for the reason that the assessment of the compensation made by the Local Commissioner at the rate of Rs,750 per Marla was not objected to by the appellants--the land-owners. This present appeal appears to be a consequence of the appeal filed by the Provincial Government seeking decrease in the compensation allowed which has already been dismissed. The appeal bearing Civil Appeal No,398 of 1989 is, therefore, dismissed.
' In both the appeals, the parties shall bear their own costs in the circumstances.