' Both these appeals arise out of the judgment and decree, dated 28-2-1984 passed by learned IIIrd Additional District Judge, Hyderabad in Land Acquisition Suit No,37 of 1982 whereby compensation in respect of the acquired land was granted at the rate of Rs,5 per square foot with 6% interest and 15% compulsory charges as contemplated under section 23(2) of the Land Acquisition Act.
2. The facts, relevant for the purpose of this appeal, as gathered from the reference made under section 18 of the Land Acquisition Act, are that Survey No,3119, measuring 1-32 acres, Deh Sari, Taluka City Hyderabad, District Hyderabad, owned by Haji Bagh Ali and others, the appellants in First Appeal No,17 of 1994, was acquired for construction of WAPDA Colony (Power Wing) and such notification under section 4 of the Land Acquisition Act, here in below to be cited as the 'Act', was published in Sindh Government Gazette, dated 3-4-1975. Notice under section 9 of the Act was also issued to appellants Bagh Ali and others on 7-6-1978, but they could not be served and subsequently after ascertaining their whereabouts they were served on 12-9-1981. They made an application demanding compensation at the rate of Rs,30 per square foot. A claim was also set up on the plea that the machinery of stone crushing machine was rendered useless when forcible possession of the land was taken by Executive Engineer Power Wing. The Land Acquisition Officer in his award, dated 12-8-1982 (Award No,129 of 1981) determined the rate of land at Re.1 per square foot estimating the total value at Rs,90,169.20, and further allowed 6% interest from the date of taking over possession of the land, which according to him was 1-12-1977, to the date of payment.
The appellants did not accept this award and made a request for reference to the District Judge for adequate price of the acquired land and as such the aforesaid reference was duly made by the Collector and Land Acquisition Officer AEPOD, WAPDA, Hyderabad, Sindh to the District Judge on 16- 10-1982. The Land Acquisition Officer namely the predecessor-in-interest of appellants in 1st Appeal No,22 of 1984, in his written statement denied the claim of appellants Bagh Ali and others and further disclosed that the appellants have filed Civil Suit No,469 of 1981 against WAPDA claiming Rs,95,000 from the defendants towards the loss of property and Rs,4,000 as loss to their business since September 1981 which is pending in the Court of IInd Senior Civil Judge, Hyderabad. The Land Acquisition Officer further explained that the acquisition of the land in dispute was duly notified under section 4 of the Act on 3-4-1975 and possession was taken on 1-12-1977 after observing the required legal formalities but since the appellants Bagh Ali and others illegally encroached upon the acquired land, they were removed under M.L.O. 130 which matter was fully agitated by the said appellants but the case was ultimately decided by the Honorable Supreme Court of Pakistan in C.P.S.L. No,K-177/1982 Bagh Ali and others v. WAPDA, therefore they are not entitled to any relief in respect of the same matter. He also questioned the maintainability of the proceedings/ civil suit on the ground that the same was barred under section 20 of the Act and because of non-joinder of necessary parties, and that the suit proceeded without appointment of guardian ad litem. He also raised the plea that no cause of action had accrued to the said appellants and that the Civil Court had no jurisdiction to precede with the case.
3. On these pleadings the following issues were settled by the Court:---
(1) Whether the suit is not maintainable?
(2) Whether the plaintiffs were running stone crusher plan on the suit land and suffered damages to the extent of Rs,4,000 per month due to illegal acts of the defendant from September 1998? If so, its effect?
(3) Whether this Court has no jurisdiction?
(4) Whether compensation of land awarded to the plaintiffs is adequate and proper?
(5) Whether plaintiffs are entitled for compensation of Rs,3,75,300 for machinery made useless by forcible possession of the land?
(6) Whether plaintiffs are entitled to recover Rs,1,39,000 as compensation for boundary wall demolished by WAPDA after September, 1981?
(7) What should the decree be?
4. The parties led evidence on these issues and produced the relevant documents besides examining one witness on each side. The learned IIIrd Additional District Judge on assessment of the evidence on record passed the judgment and decree as aforesaid.
5. Learned counsel for the appellants Bagh Ali and others assailed the impugned judgment on all issues and submitted that the finding recorded by the trial Court be set aside on the point of compensation such as Issues Nos.2, 5 and 6. He contended that the Land Acquisition Officer was obliged to render the award in respect of compensation claimed by the said appellants but merely because of pendency of a civil suit filed by the appellant Bagh Ali and others against WAPDA, no such finding was given which according to him was a misconceived view. He further contended that on Issue No,4, the evidence in respect of the price fetched by the other lands was not appreciated reasonably, otherwise these appellants were entitled to compensation of Rs,30 per square foot and not Rs,5 as held under this issue. Learned counsel for the Land Acquisition Officer submitted that all the sale-deeds produced in respect of the claim of Bagh Ali and others were private documents and could not be proved in absence of the evidence of author thereof while the trial Court erroneously considered the same and fixed the price at Rs,5 per square foot otherwise the value fixed in the award i,e,, Re.1 per square foot was appropriate. He also contended that the trial Court proceeded on a wrong assumption that the acquired land was situate in a commercial area. According to him the trial Court failed to consider the standards laid down in section 23 of the Act.
6. An overview of the contentions raised by the parties would indicate that the controversy requires determination of the points relating to maintainability of the reference and jurisdiction of the Court, entitlement of Haji Bagh Ali and others to compensation in respect of machinery, boundary wall and running business as claimed by them, value of the acquired land at the relevant time keeping in view the market rate and compensation under section 28-A of the Act.
7. At the outset it would be relevant to point out that Additional District Judge has allowed compulsory charges as contemplated uncle section 23(ii) of the Act but no additional compensation as directed under section 28-A of the Act has been granted. The non-compliance of mandatory provision of section 28-A frustrates the purpose for which award is made, besides resulting in violation of legal provision. As held in the case of Sadiq Jafri, Zainabi v. Land Acquisition Officer PLD 1992 SC 472, the Court is bound to grant Additional Compensation under this mandatory provision of law and failure on the part of Court to grant it is a mistake of the Court and the decree is liable to correction. This proposition of law supports the contention of Bagh Ali and others that their claim has not been fairly catered for. I would therefore, agree with the learned counsel for the appellants Bagh Ali and others that the decree to this extent is defective and is liable to correction.
8. On the other hand learned counsel for the Land Acquisition Officer contended that while assessing the evidence on record as to market value of the acquired land on the basis of sale- deeds produced by the opposite side the Additional District Judge fixed exorbitant and excessive rate without realizing that the sale-deeds related to transactions pertaining to different areas and different time. In the background of this plea the Court has to examine the issue of compensation (Issue No,4), keeping in view, the principles enjoined in section 23 of the Act together with date of possession as well as the date of announcement of award, price paid for comparable property in neighborhood, with reference to its present market price and potential value (further use) coupled with rise in prices, inflationary trend and depreciation in value of money/currency. Reference in this regard may be made to Malik Amin and others v. Land Acquisition Collector PLD 1988 SC 32, Abdul Qayum v. Pakistan 1996 SCM R 1820, Province of Punjab v. Abdul Majeed 1997 SCM R 1692, Province of Punjab v. Malik Altaf Ahmed 1993 CLC 179 and Land Acquisition Collector, Abbottabad v.
Muhammad Iqbal 1992 SCM R 1245.
9. As regards the date of taking over possession it is the case of Bagh Ali and others that they were forcibly dispossessed on 12-10-1981 and till then they were running stone crushing plant on the acquired land. As regards the possession Bagh Ali has deposed that even at the time of acquisition of the acquired land, there was stone crushing machine plant and his machinery was damaged by use of force on 14-9-1981 although the notice was first received by him on 17-9-1981. In cross- examination he has shown his ignorance if on 11-12-1977, the possession of the land was given by the Land Acquisition Officer to the WAPDA Authorities. As compared to this, Ghulam Ali Shah the Land Acquisition Officer, WAPDA has deposed that possession of the acquired land was taken on 1- 12-1977 from the plaintiff who was present there. It is not clear if the term plaintiff was used for all applicants or not but it is understood that by plaintiff he meant Bagh Ali who was the leading contestant amongst all the sharers and had signed the application as applicant No, 1 . This inference also finds support from the subsequent version given in the cross-examination, when the witness denied that the possession was again restored to said plaintiff and asserted that he would make out from the record that the possession was taken over from the plaintiff namely. Bagh Ali on 1-12-1977. A question was put to him to produce Mashirnama of taking over possession, to which he replied that he could not produce such documents. Regarding proceedings of Suit No,468 of 1981 he admitted that injunction order was issued in favour of plaintiff in respect of the subject-matter and subsequently the same was dismissed. He showed his lack of knowledge if in that case the Nazir had inspected the site and found that the plaintiff was in possession.
10. Regardless of the afore stated versions, the fact remains that the appellants were found to be encroachers and removed under M.L.O.
130. At the most, the Land Acquisition Officer could not furnish direct evidence to establish as to at what point of time Bagh Ali and others encroached upon the land. There was no dispute that the land was acquired in the year 1975 and such notification was also issued. Incidentally, the copy of notification could not come on record but Bagh Ali and others have not questioned this fact seriously. Since the Land Acquisition Officer has asserted that he could prove from record that the possession was taken over on 1-12-1977, this version could not be discarded simply because the Mashirnama of taking over possession was either not prepared initially or not produced during the proceedings. There is no plausible reason to doubt the date of possession as above.
11. The owners Bagh Ali and others were required to furnish evidence of the value of adjoining lands particularly as on the crucial date i,e, 1-12-1977, but the sale-deed Exh.16, besides pertaining to a different date is also remote in time. The owners could not, of course, lead adequate evidence relating to the relevant ambient circumstances including the use of the land in future and its potential value and corresponding rise in prices. In this regard the owners have relied on pamphlet Exh.20 issued by Al-Mustafa Housing and Construction Company, Hyderabad in respect of residential/commercial plots in Prince Town Scheme, Phase II, Hyderabad. The scheme seems to have been approved in the year 1982 and it is also not made Jut that it falls within the same area (Deh), therefore, it could not be relied upon for the purpose of assessing the market value of the acquired land. Sale deed in respect of sale of agricultural land situated in Deh Jamshoro, Taluka City Hyderabad was executed on 28th day of April, 1981, as against this the award shows that possession of the acquired land was taken on 1-12-1977 while the land in dispute is situated in Deh Sari, Taluka City Hyderabad. At least it cannot be denied that both the lands are situated in different Dehs.
12. Next, the sale-deed Exh.17 relates to an agricultural land situated in same Deh i,e, Deh Sari, Taluka Hyderabad. This deed has been executed on 11-4-1993 in pursuance of an agreement, dated 23-1-1983 that is to say about 6 years of the aforesaid date of taking over the possession in the instant case, even then the value of the land is about Rs,6.42 per square yard. This fact has not been considered in its proper perspective.
13. The other sale-deed Exh.18 relates to agricultural land in same Deh but the deed has been executed on 23-6-1983. So also the sale-deed Exh.19 relating to agricultural land in same Deh pertains the date 3-11-1983. These factors were to be considered by the trial Court but the finding has been given in general terms that keeping in view the market value of the land situated near acquired land the value is fixed at Rs: per square foot. Such determination of the value is not founded on realistic approach, synchronizing with the date of possession and the other relevant factors enumerated in para. 8 above. The findings, therefore, could not be sustained and is accordingly set aside.
14. As regard the compensation for loss to business and damage to machinery and boundary wall it may be noted that nothing could come on record to show that it was an authorized business and was duly licensed. Although it is being asserted that the land fell within the municipal area, but one fails to understand how a stone crushing plant, which is usually installed in Hilly areas was allowed to function within the limits of Hyderabad Municipal Corporation. It could possibly be an isolated area or an abandoned place, for the environmental pollution created by a stone crushing machine owing to emission dust could hardly be tolerated within the residential areas keeping in view the hygienic conditions. It was for the owners to prove their case in the civil suit that they were entitled to any compensation, otherwise in the light of evidence on record, in this case the trial Court was stifled in not recording a finding on this point. Nothing favorable can otherwise be assumed in support of the appellants Bagh Ali and others.
15. On a clear assessm ent of the circumstances of this case it may fairly be concluded that the determination of the price of the acquired land required discreet approach under the settled norms which has not been done. Adequate data is also not available on record to facilitate a Comprehensive exercise on the point of compensation making a realistic and extensive appraisal of the point in question in the light of section 23 of the Act and the settled law pointed out earlier.
Although the case is quite an old one but on merits it would be in the interest of justice to leave it to the Court of first instance to re-examine all focal aspects keeping in mind the observations made in para.8 above. Consequently, the impugned judgment and decree are set aside and the matter is remanded to the Court which passed the judgment and decree to re-examine the evidence after allowing the parties to lead further evidence on the issues. It should also supply the omission in respect .Of Additional Compensation under section 28-A of the Act. Both the appeals accordingly stand disposed of, with no order as to costs.