' It is desirable to state briefly certain facts giving rise to this litigation.
2. Appellants Muhammad Ibrahim, Muhammad Ismail, Muhammad Yamin, and Mst. Azizan owned land bearing S.Nos.329(2-11) and 330(1-27), measuring 3-38 acres situated in deh Old Sukkur within municipal limits of Sukkur. A portion of this land was being used for growing vegetables, which was being irrigated by a tube-well installed there. There were two brick-kilns with two rooms on the remaining portion of the land. There was a boundary wall around the land. It is the case of the appellants that the land is surrounded by industrial units and residential colonies and is situated at a distance of 4 or 5 furlongs from Clock Tower Sukkur, with transport facilities. This land was acquired by respondent No,2 for housing project pursuant to a notification issued under section 4 of the Land Acquisition Act, 1894, published in the official Gazette of Government of Sindh. It is alleged that the respondent No,2 without associating the appellants awarded compensation of the said land at the rate of Rs,5,000 per acre for cultivated land and Rs,3,000 per acre for uncultivated land, plus 15% compulsory acquisition charges and 6% interest. No damages and compensation of brick-kilns, tube-well, etc. Were, however, granted. This compensation was received by the appellants under protest. They, however, filed an application under section 18 of the Land Acquisition Act, 1894, before respondent No,2 for referring the matter to District Court for decision in regard to the compensation awarded. Accordingly a reference was made to District Judge Sukkur in terms of the above provisions of law. The reference was contested by respondent No,2. The parties went to trial on the following issues:--
(i) Whether the land involved is situated within the municipal limits?
(ii) To what rate the petitioners are entitled for the compensation?
(iii) Whether the petitioners have suffered any other loss and damages. If so, to what extent?
(iv) What relief the petitioners are entitled to?
(v) What should the decree be?
3. The appellants examined Karam Illahi (P.W-1), Mohkamdin (P.W-2), Rahim Bux (P.W-3), and one of them, namely, Muhammad Ismail (P.W-4),while the respondent No,2 examined Abdul Karim, Head Clerk (D.W-1).
4. On the assessm ent of evidence, both oral as well as documentary, the learned I-Additional District Judge, Sukkur, allowed commpensation at the rate of Rs,10,000 per acre. He, however, refused to award damages and compensation for brick-kilns etc. This judgment dated 25-3-1980 was challenged before this Court in I-Civil Appeal No,3 of 1980, which was allowed on 30-5-1983, and the suit was remanded to District Judge, Sukkur with the following direction:- "(1) This is an appeal against the judgment dated 25-3-1980 passed by the learned I-Additional District Judge, Sukkur in Land Acquisition No,13/78 decided under section 18 of the Land Acquisition Act on the reference made to him. Farkhand Ali, learned counsel for the appellant and Mr. S.Sarfaraz Ahmed. Learned AA.G, submit that it will be just and proper to remand the case to the learned District Judge, Sukkur, with direction to provide opportunity to the parties to lead fresh evidence for and against. By consent the above judgment is set aside and the case is remanded to the learned District Judge, who will decide the same himself personally after allowing the parties to adduce evidence for and against."
5. On remand the appellants relied upon the evidence recorded earlier. They also examined Pir Bux (P.W-5) who is Office Superintendent, Sukkur Municipal Corporation. The respondent No,2 also examined Ali Nawaz, Senior Clerk (D.W-2).
6. The learned District Judge, Sukkur vide his judgment dated 28-5-1986 maintained the rate of compensation awarded earlier by I-Additional District Judge, Sukkur and also disallowed the damages. It is in these circumstances that the present appeal was filed under section 96 of the Code of Civil Procedure, 1908, read with section 54 of the Land Acquisition Act 1894.
7. I have heard Mr. Muhammad Sharif-ul-Islam Fakhree, learned counsel for appellants and Mr.M.A.
Rashid, learned counsel for respondent No,2. I have also gone through the record of this case carefully.
8. Mr.M.A.Rashid, learned counsel for respondent No,2 has raised a preliminary objection about the competency of reference which according to him was barred by time. This question was not raised at any time and it was for the first time that the learned counsel for respondent No,2, invited my attention during the course of his arguments. Reliance is placed upon cases reported as Col.Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others (PLD 1970 Lahore 321), Azad Government of the State of Jammu and Kashmir v. Muhammad Shafi (PLD 1971 Azad J & K 33), and State Life Insurance Corporation v. Mst. Rashida Begum alias Nasim Akhtar and another (1984 CLC 1046). The following observations made in the first cited authority are, however, relevant:--- "The language of this proviso makes it amply clear that the farthest point of time before which such a person must file an application to the Collector for reference to the Court is six months from the date of the making of the award. In case a notice has been served under section 12 at any period of time within four and a half months of the making of the award the person aggrieved will be entitled to make his application within six weeks after it. If the notice, however, is served after the said four and a half months have expired, then the person aggrieved can file his application within six months of the making of the award irrespective of the date on which the notice is received by him.
Six months is, therefore, the maximum period."
9. There can be no cavil with this proposition of law, but the fact remains that the period of limitation as laid down in the proviso to section 18 of the Land Acquisition Act, 1894, is a matter for Collector to decide. The case of Collector of Karachi v. Haji Gola and others, reported in PLD 1965 Karachi 413, is clear on this point in which it was held:-- "Main objection raised on behalf of the Government is that all the applications filed by the claimants under section 18 of the Land Acquisition Act are time-barred and as such this reference should not be considered by this Court. I find very little force in this argument. Section 18 clearly lays down that a person who is interested in the award and has not accepted it can by application in writing request the Collector to refer the matter to Civil Court for determination of his objections in respect of measurement of the land, amount of compensation, and the apportionment of this compensation. Thus, the powers of a Court under section 18 are very much limited to these three points referred to above. Court cannot determine the question of limitation after reference is made to it by the Collector under section 18 of the Land Acquisition Act. Proviso to section 18 is very clear on this point, i.e,period of limitation.
1st clause (a) lays down that such application must be made by a person if he was present before the Collector when this award was made "within 6 weeks from the date of the Collector's award".
Clause (b) refers to cases in which such persons are absent at the time of the making of that award and in that case he can file application under section 18 within 6 weeks of the receipt of the notice from the Collector under section 12 (2) or within 6 months from the date of the Collector's award whichever period shall first expire. This proviso clears the entire ambiguity about the powers of the Court and the Collector regarding the determination of limitation. According to it, it is the Collector who has to determine this question. Even if time-barred applications are referred to the Court then objection regarding limitation cannot be raised on behalf of the Government."
10. This question was examined by a Full Bench of Peshawar High Court and was answered in the following words:- "....That once the Collector had made reference to the Court, the Court would be incompetent to go behind the reference to see if the objection application before him (the Collector) had been filed within time, as prescribed in proviso to section 18 of the Act."
11. This judgment was considered by the Supreme Court in Government of West Pakistan (Now Government of N.-W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmad Ali Jan and others, reported in PLD 1981 SC 516, and their lordships were pleased to observe:-- "We agree with the formulation of this opinion as in the absence of any specific provision in the Act itself, the jurisdiction conferred by the relevant sections debarred the designated Court from examining the validity of the reference which is a condition precedent for the designated Court to act accordingly. As the executing Court cannot go behind the decree and so the designated Court cannot go behind the reference. The question as to whether the application is or is not within time, is in the exclusive domain the Collector and the discretion exercised by him is not justiciable qua the exercise of judicial power by the designated Court having regard, in particular, to the language of section 21 of the Act. It was, however, revisable under section 18-B of the Act, as applicable to this Province, and the final order thus passed could not, by any stretch of imagination, be the subject- matter of review by the designated Court."
12. Even otherwise the question of limitation is a mixed question of law and facts and in the circumstances of the present case it cannot be allowed to be raised for the first time in second round of appeal before this Court.
13. Admittedly the land in dispute is situated within the limits of Sukkur Municipal Corporation. The evidence of Karam Illahi (P.W-1), Mohkamdin (P.W-2) and Rahim Bux (P.W-3), have gone unchallenged, while nothing worthwhile could be elicited against appellant Muhammad Ismail (P.W-4), and Pir Bux (P.W-5). Again the learned District Judge lost sight of the fact that almost in similar circumstances the I-Additional District Judge, Sukkur had allowed compensation to Syed Aley Nabi Rizvi at the rate of Rs,2 per sq. Foot. The copy of judgment in that case is on record (Ex.25/4). The perusal of judgment shows that S.Nos.618 and 619 situated in deh Old Sukkur which were subject-matter of the said reference were acquired for "Government Housing Scheme" alongwith the S.Nos. Belonging to appellants. In Land Acquisition Suit No,23 of 1982 pertaining to S.Nos.736 and 738, deh Old Sukkur, acquired for the said scheme Syed Saadi Jaffari Zainabi was awarded compensation at the rate of Rs,2 per Sq. Foot vide judgment (Ex.44). The record shows that in all 49-28 acres of land was acquired for the 'Housing Scheme' and a distance of few S.Nos.
From each other could hardly make any difference. The appellants were thus not treated on the basis of perfect equality. The finding of the learned District Judge is based mainly on hypothetical conjectures. The Judge must base all his findings on the evidence before him and not on mere surmises and conjectures. The dividing line between conjecture and inference is very thin and often very difficult to draw and, therefore, one should be careful to see that only those facts are discussed which can be found in the evidence on record.
14. Karam Illahi (P.W-1) is a witness of truth. He is completely an independent person and he gave an account of market value of the lands in the vicinity duly supported by documentary evidence.
The agreed price in the last transaction which he had entered vide (Ex.16) was Rs,4 per Sq. Foot. He has also testified in clear terms that the lands belonging to appellant are surrounded by thickly populated area and can be used for residential, commercial and industrial purposes. The evidence of this witness has gone unchallenged and even in remand of the case no effort was made to recall the witness for the purpose of cross-examination. Where a statement is not challenged in cross-examination and there is no evidence in rebuttal of such statement the presumption would be that such statement is deemed to have been accepted by the party against whom such evidence was given.
15. Mohkamdin (P.W-2) who is Personal Assistant (PA.) of the Chief Officer, Peoples' Municipality, Sukkur has testified that the lands belonging to appellants are situated within the limits of Municipality Sukkur, which fact is not disputed on behalf of respondent No,2.
16. Besides the above evidence Rahim Bux (P.W-3), Muhammad Ismail (P.W-4) and Pir Bux (P.W-5) have fully supported the case advanced by the appellants for enhancement of the amount of compensation. Pir Bux (P.W-5) who is Office Superintendent, Municipal Corporation, Sukkur, has further testified that the lands acquired for the purpose of "Housing Scheme" are being sold at the rate of Rs,20, Rs,30 and Rs,40 per Sq. Foot depending upon the size of plots. The evidence led on behalf of respondent No,2 leads us nowhere.
17. No doubt the Constitution of Islamic Republic of Pakistan, 1973, safeguards the rights of every citizen to acquire, hold and dispose of property, but these rights are subject to reasonable restrictions in the public interest. The Land Acquisition Act, 1894, which encroaches upon these valuable rights of citizens, is although not violative of Constitution, but, has never been welcomed. It is obviously due to inadequate compensations awarded to the owners who are affected by such 'compulsory purchases" and as rightly observed by my brother Nasir Aslam Zahid J.,. In the case of Jan Muhammad and others v. Deputy Commissioner, Karachi, reported in PLD 1986 Karachi 164, a liberal attitude is I to be taken towards the persons whose lands have been acquired compulsorily.
18. In order to determine the amount of compensation to the persons who are deprived of an interest in lands the market value may be assessed by taking into consideration the price paid for comparable property in the neighbourhood. The potential value, viz., " the value on account of use to which the land may be put in future" should, however, be the relevant consideration for the assessm ent of compensation. I cannot do better than quote the weighty observations of their lordships of the Supreme Court made in the case of Fazalur Rahman and others v. General Manager, S.I.D.B. And another, reported in PLD 1986 SC 158, in extenso:-- "I would, therefore, like to emphasize that while determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, only the 'past sales' should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as a Court witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even on relying upon the oral testimony with respect to the market value of file property intended to be acquired, because even while deciding cases involving questions of life and death, the Courts rely on oral testimony alone and witnesses while determining the market price of the land in question, because of the prevalent tendency that in order to save money on the purchase of stamp papers and to avoid the imposition of heavy Gain Tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful, and even necessary, to examine such actually paid. The 'previous sales' of the land cannot, therefore, be always taken to be an accurate measure for determining the price of the land intended to be acquired."
19. For all the above reasons, I am satisfied that the learned District Judge has failed to consider that while determining the market value of the land or fair compensation thereof, reference is to be made to the present use and also to the use to which the land can be put in near future. It is a matter of record that the lands belonging to the appellants are near the city of Sukkur and which are presently sold at the rates ranging from Rs,20 to Rs,40 per sq. Foot.
20. Keeping all these factors in view, I award compensation at the rate of Rs,2 per sq. Foot for the lands belonging to appellants plus the compulsory acquisition charges and interest awarded to them by the trial Court.
21. The finding of the learned District Judge on issue No,3 about the damages is again not borne out from the record. Rahim Bux (P.W-3) who was managing the lands on behalf of appellants who were minors at that time has testified about the installation of tube-well etc. He has produced the relevant electricity bills (Ex.24/B), (Ex.24/D), and (Ex.24/E) to substantiate the above facts. Since the appellants were school going children at that time the electricity connection was obtained in the name of Rahim Bux (P.W-3) who is their real uncle and was looking after them after the death of their father. The bills are for substantial amount and they lend support to the case pleaded by the appellants. Rahim Bux (P.W-3), has also testified about brick-kilns and other structures. His evidence has gone unchallenged and where the respondent No,2 declined to avail of the opportunity in cross-examination, the testimony against him could not be I disputed. I would, therefore, award a sum of Rs,50,000 as damages to appellants.
22. The appellants have also claimed additional compensation under section 28-A of the Land Acquisition Act, 1894, added by Sindh Ordinance No,XIII of 1984, in the following words:-- "28-A. Additional compensation-- ' In addition to the compensation fixed on the basis of market value as prevailing on the date of notification under section 4, an additional amount of fifteen per cent per annum of the compensation so fixed shall be paid from the date of notification under section 4 to the date of payment of the compensation."
' Mr.M.A.Rashid, learned counsel for respondent No,2, has contended with force that this amendment will not apply to pending actions and such rights are to be governed by law in force when action had commenced. He has placed reliance upon the case of Barkat Ali v. Administrator, Thal Development Authority, reported in PLD 1978 Lah.867. This case relates to ouster of jurisdiction of the Civil Court and it has got no relevancy to the facts of the present case. A bare reading of this newly added section shows that this additional compensation shall be granted in all pending cases. It will not be out of place to mention here that an appeal is a continuation of the suit. This view gets support from the case of Deputy Commissioner, Karachi East v. Mahrab and others, reported in 1988 CLC 1119, in which following observations were made:-- "In view of this amendment, the claimants are further awarded additional compensation at the rate of fifteen per cent per annum of the amount of difference in the two awards from the date of notification under section 4 to the date of payment of compensation."
23. It may be added that this newly added provision of law is for the benefit of the effected persons and according to Bindra's Interpretation of Statutes, in interpreting such a statute, the principle established is that there is no room for taking a narrow view but that the Court is entitled to be generous towards persons on whom the benefit has been conferred. I would, therefore, allow this additional compensation at the rate of Rs,15% per annum of the compensation so determined which shall be paid to appellants alongwith the compensation awarded now at the rate of Rs,2 per Sq.Foot plus 15% compulsory acquisition charges,6% interest per annum and Rs,50,000 as damages. The trial Court shall make such calculations after adjustment of the amount already received by the appellants under protest.
24. In the result the appeal is allowed with costs.