1. ' This First Appeal has been filed by the appellant against the Judgment dated 27-1-1999 passed by learned IVth Additional District Judge, Hyderabad in Land Acquisition Suit No,1 of 1988, whereby he has decreed the suit of plaintiffs/respondents and awarded the compensation at the rate of Rs, 3,00,000 per acre plus 15% Additional Compensation as required under section 28-A of the Act.
2. ' Briefly the facts of the case are that an agricultural land measuring 15-19 acres bearing S.Nos.
3. 144/A, 145/1, 2, 146/1 and 2 situated in Deh Narejani Taluka and District Hyderabad was acquired for public purpose i,e, for construction of residential/nonresidential building for Lower Indus Water Project WAPDA under the orders of Project Director L.B.O.D WAPDA. Hyderabad. This land belongs to the respondents therefore, notification under section 4 of the Land Acquisition Act was issued on 4- 9-1986, declaring the intention for Acquisition of land and finally notification under section 6 of the said Act was issued on 29-11-1986 and the possession was taken over by the authority on 10-3-1987.
4. The appellant/defendant issued a notice under section 9 of the said Act. In response to the said notices, respondents/ plaintiffs filed statement and claimed compensation at the rate of Rs,15 sq.
5. Ft. After considering the claim of the respondents and observing that the land was an Agricultural Land and the market value of the Agricultural Land prevailing in the same village "Deh Narejani" was about 19,000 per acre. The appellant No,1 awarded compensation to the claimants at the rate of Rs,18,000 per acre alongwith the statutory benefits. The respondents/plaintiffs objected to that award on three grounds that firstly the compensation awarded was inadequate and improper and they claimed the compensation at the rate of Rs,15 per sq. Ft. As according to them the market value of the property in the vicinity. Secondly that the said property is situated on a Highway known as Hyderabad-Mirpurkhas Road, and is within the Municipal limits of H.M.C. And thirdly, on the ground of potential and fertility of the land. They requested the Land Acquisition Officer to refer-the matter to the Court and the same was referred accordingly, and was transferred to the file of learned IVth Additional District Judge, Hyderabad.
6. ' The appellants/defendants filed written statement inter alia, contending that the claim of the Khatedars is exhorbitant and exaggerated. It was further pleaded that all legal formalities were observed in the Land Acquisition proceedings. It was also pleaded that the plaintiffs/respondents did not file objections in response to the notice under section 9 of the Land Acquisition Act.
7. ' On the pleadings of the parties the learned trial Court framed the following issues:- Issue No,1---Whether the reference is not maintainable in law ?
8. IssueNo,2.---Whether compensation awarded by L.A.O. Is inadequate and improper ?
9. Issue No,3.---What is the market value of properties in the vicinity?
10. IssueNo,4.---What should the compensation of the Land acquired by the defendant ?
11. Issue No,5.---Whether the applicants/ plaintiffs are entitled to the Additional Compensation under section 28-A of Land Acquisition Act ?
12. Issue No,6.---What should the decree be ?
13. ' The trial Court examined the plaintiff Muhammad Juman as Exh.37, who produced record of rights in respect of the land in suit as Exh.37-A, Certified true Copies of transactions made in the vicinity as Exhs.37-B, 37-C, 37-D, a map of Deh Narejani as Exh.37-E and also map of Taluka Hyderabad as Exh.37-F, his previous statement as Exh.37-G and the Judgement of Vlth Additional District Judge, Hyderabad and closed the side as Exh.37-H.
14. ' On the other hand the defendants/appellants examined himself as Exh.39. He produced the award as Exh.39-A, application of respondents Muhammad Juman and Haji Muhammad Hashim as Exh.39-B and reply to the notice under section 9 of Land Acquisition Act as Exh.39-C. Thereafter S.D.O. Abdul Qadeer Qureshi was examined on behalf of L.I.M. Project WAPDA as Exh.40 and the side was closed.
15. ' After hearing both the parties trial Court passed the impugned Judgment/award.
16. ' Learned counsel for the appellants contended that the Additional Compensation under section 28-A of the Land Acquisition Act has been illegally awarded. It is further contended that appeal being 1st Appeal No,34 of 1994 was filed by the appellant from the decree dated 26-5-1994 of the learned IVth Additional District Judge, challenging the increase in compensation and agitating other points. The respondents had filed cross-objections, compensation. Appeal was accepted and the matter was remanded to the learned IVth Additional District Judge Hyderabad to decide the same after hearing the appellant No,2 Water and Power Development Authority through its Chairman, WAPDA House, Lahore. It is further contended by the learned Counsel that It does not appear from the perusal of the order and judgement that the cross-objections were dismissed or allowed. He further contends that in view of this position neither the plaintiff could claim nor the learned Referee Court could grant the additional compensation. The judgment in 1st Appeal No,34 of 1994 would operate as res judicata. Though section 11, C.P.0 would not in terms be applicable to appeal but the principle of constructive res judicata will apply. The learned counsel further contended that the respondents having omitted to peruse their cross-objections in 1st Appeal No,34 of 1994 were debarred from claiming or agitating the controversy of Additional compensation under section 28-A, Land Acquisition Act.
17. ' The learned counsel for the appellants has placed his reliance on the case law reported in PLD 1996 SC 77 wherein it has been held that the details of sales of the other Dehs i,e, other then the same Deh Narejani, were preferred to the sales of the same Deh illegally. Sales of the same Deh were discarded on considerations based on the conjectures and surmises.
18. ' PLD 1982 Kar.
19. 147.
20. ' In this authority it has been held that the market value of the land at the time of notification under section 4 of the Act but not at the time of award is relevant under section 23(i) First Land Acquisition Act.
21. ' 1977 CLC 848 and PLD 1986 Kar. 164 .
22. ' The award (Exh.61) produced by one Mr. Tahir Hussain Land Acquisition Officer (Exh.60) has been illegally considered. It was not relevant, being for another Deh and relating to some other land and other parties. Even otherwise an award is a mere offer. It cannot be treated as evidence in another case.
23. ' PLD 1969 Azad J&K 46.
24. ' Burden of proof of supplying the material for ascertaining the market value of the acquired land was on the claimants/plaintiffs. They have failed to discharge that burden. They have merely produced certain records of rights relating to some other parties but have not examined any of those parties. The record of rights produced by plaintiff merited no consideration.
25. ' PLD 1976 Pesh.
26. 50.
27. ' Cross-objections are liable to be dismissed summarily for want of payment of court-fee. Article 1 of Schedule 1 of the Court Fees Act, applicable to the appeals under section 54 of Land Acquisition Act would apply to the cross-objections also. Admittedly cross-objections are under Orders 21 and 22, C.P.C.
28. ' The learned counsel for the appellant has also relied on the case law reported in PLD 1963 Azad J&K 10 and PLD 1954 Lah.265. He in the last contended that payment of interest under section 28 of the land Acquisition Act is discretionarly and not mandatory and it was not claimed by the plaintiffs and also they do not claim it at this stage.
29. ' On the other hand the learned counsel for the respondents has urged that First Judgement was passed by Mr. Khaliq Dino Dal 1st Additional District Judge on 29-8-1989 allowing:-
(i) Market Value at Rs,3,70,000 per acre under section 23(1) of L.A. Act.
(ii) Compulsory Acquisition charges 15% under section 23(2) of L.A. Act.
(iii) Additional Compensation at 15% per annum under section 28(A) of L.A. Act.
(iv) Simple interest at 6% per annum under section 28 of L.A. Act. This Judgment was set aside by the same Judge since it was passed without notice to appellant No,2.
30. ' Second judgment was passed by Mr. Iqbal Arain, 1st Additional District Judge on 13-10-1992 after notice to appellant No,2 allowing:--
(i) Market value at Rs,1,20,000 per acre under section 23(1) of L.A. Act.
(ii) Compulsory Acquisition Charges 15% under section 23(2) of L.A.Act.
(iii) Additional Compensation 15% per annum under section 28(A) of L.A. Act.
(iv) Simple interest at 6% per annum under section 28 of L.A. Act.
31. ' This judgment was also set aside by High Court on technical ground that the learned Judge himself visited the suit land as such he remanded the same to be heard by another Judge.
32. ' Third judgment was passed by Mr. Zakir Hussain, IVth Additional District Judge on 26-5-1994 after the remand allowing:--
(i) Market value of Rs,280,000 per acre under section 23(1) of L.A. Act.
(ii) Compulsory Acquisition charges at 15% under section 23(2) of L.A. Act.
(iii) Additional Compensation at 15% per annum under section 28(A) of L.A. Act. (NIL)
(iv) Simple interest at 6% per annum under section 28 of L.A. Act. (NIL)
33. ' This judgement was also set aside by the High Court since it was passed without notice to the appellant No,2 after the remand of the case from the High Court.
34. ' Fourth judgment was passed by Mr. Faiz Rasool Rashid, IVth Additional District Judge on 27-1-1999 allowing:--
(i) Market value at Rs,3,00,000 under section 23(1) of L.A. Act.
(ii) Compulsory Acquisition charges at 15% under section 23(2) of L.A. Act.
(iii) Additional Compensation at 15% per annum under section 28(A) of L.A. Act.
(iv) Simple interest at 6% per annum under section 28 of L.A. Act. Omitted.
35. ' This omission appears to be a typing mistake since he has not refused the relief and it was mandatory for him to allow the same.
36. ' The learned Counsel for the respondents has pointed out some points from the evidence/deposition of respondent No,1(Exhs.37 and 37-H) wherein the witness has deposed that: "Our land is better than others."
37. "There are houses around the suit land."
38. "The land is in Master Plan of H.M.C."
39. "It is on Main Highway to Mirpur Khas."
40. "In the vicinity of the suit land the value is Rs,15% per sq. Ft. The witness has cited on Exh.37-B where the value is shown at Rs,280,000 per acre, ' Exh.37-C where the value is shown at Rs,4,70,000 per acre.
41. ' Exh.61 where the value is shown at Rs,9 per sq.Ft. Or Rs,4,00,000 per acre.
42. (as awarded by appellant No,1, himself of land far away from Hyderabad). The witness has also produced Exh.37-E Deh Map. "
43. ' In the Deposition Abdul Majeed L.A.O. WAPDA (Exh.39) has deposed to the effect that; "I cannot say if land is situated within Hyderabad Municipal Corporation."
44. "Deh Narejani is nearer to Hyderabad than Deh Guje."
45. "There is a building of Radio Pakistan adjacent to the suit land and land is situated at Main Mirpurkhas Road."
46. ' In the deposition Nazeer of WAPDA (Exh.72) has deposed as follows: "He does not deny that the transactions shown in Exhs.73 and 74 are between close relatives and less value is shown to save stamp duty."
47. "He does not state that the transactions shown in Exhs.73 and 74 are of the lands situated in the vicinity of suit land."
48. "Exhs.73 and 74 are either of lease, gift and transaction between close relatives to save stamp duty as such cannot be considered in the present case."
49. ' No question was put to the landowners in cross-examination to dispute his deposition on points mentioned above and to dispute the documents mentioned above and no evidence led by the appellants to prove that the land had no potential value.
50. ' The learned counsel for the respondent contended that where the statement of witness was not challenged in cross-examination and there was no evidence in rebuttal of such statement, presumption would be that such statement was deemed to have been accepted by the party against whom the same was given. 1991 MLD 90 and 1996 CLC 1193.
51. ' Learned Counsel for the respondent argued that it is now a well-settled law that in assessing market value of land, its present use alone is not relevant, its use in future and its potential value being situated near developed land, are important factors to be kept in view while determining market value of acquired land. 1997 SCMR 1692.
52. Potential value of land i,e, the use to which it cannot be put in future. Fact that long period has elapsed between notification and announcement of award and that during that period prices of land has risen sharply ought to and should have been taken into account. PLD 1988 SC 32.
53. ' High Court ignored the fact that land in question was acquired in 1972, Arbitrator was appointed in 1975, who gave award by the end of 1977. Appeal decided by High Court in 1992. Value of land had increased, whereas the value of money diminished. Supreme Court taking into consideration such fact, enhanced the amount of compensation. 1996 SCMR 1820.
54. ' Quality of acquired land in question, although was being used for agricultural purposes, yet adjacent to city, had started expending towards it. No residential colony was in existence at site, but bus stand and building of Brigade Head Quarter, had come into existence---Land in question was urban agriculture land suitable for building purposes its compensation should have been assessed on such quality of land. 1992 CLC 1775.
55. In assessing the compensation the potential value i,e, the benefits, advantages, arising from the present use and future use, the inflationary trend and depreciation in currency should be taken into consideration. 1993 CLC 179.
56. ' High Court in appeal assessed the amount of compensation by taking into consideration price paid for comparable property in neighborhood and by reference to it present and future use. 1991 MLD 90.
57. ' The learned counsel for the respondents has relied on the following authorities on additional compensation under section 28 (A).
(a) The Court was duty bound to grant Additional Compensation as provided by the mandatory provisions of section 28(a) and failure on the part of Court to grant it being the mistake of the Court, the decree should have being corrected and the party should not have been allowed to suffer. PLD 1992 SC 472 and 1999 MLD 2922.
(b) Additional Compensation to be awarded in all pending cases. Appeal being continuation of suit, Additional Compensation was to be awarded to persons affected by compulsory acquisition of their land. 1991 MLD 90.
(c) Where a statute had been enacted for the benefit of affected persons in interpreting such statute, there was no room for taking a narrow view but the Court was entitled to be generous towards persons, on whom the benefit had been conferred. 1991 MLD 90.
58. ' The learned counsel for the respondents further contended that the Court, in every case while awarding compensation equivalent to market value of the land, is bound to award a further sum equivalent 15% of the market value in consideration of the compulsory nature of acquisition. The Court while dismissing the appeal and confirming the judgment of lower Court further directed that respondent will also be paid as sum equivalent to 15% of the market value of the land in consideration of the compulsory nature of acquisition as provided under section 23(2) of the Act.
59. ' In identical case of Province of Punjab v. Malik Altaf Ahmed and others the lower Court enhanced compensation from Rs,400 to Rs,2,000 per Marla but omitted to award relief under sections 23(2), 34 and 28 of the Act. The Province went in appeal for reduction in market value, and land owners without filing cross-objections, pray for more enhancement of market value and also prayed for relief under sections 23(2), 34 and 28 of the Act. The High Court dismissed the appeal of the Government and held that respondent owners, however, having not filed the cross-objections or appeals, assessm ent determined by the reference Court could not be disturbed---Appeal against assessm ent was thus not warranted---Owners, however, would be entitled to 15% compulsory acquisition charges alongwith the benefits under sections 28 and 34 of the Act. 1993 CLC 179 relevant page 184 B.
60. Where amount awarded qua compensation of acquired land, neither was paid nor deposited on or before taking possession of the land. Authority, held was bound to pay interest to the owners of the acquired land from the date of possession of the land 1990 CLC 718 ' In C.A No,8 of 1993 (Mst. Kariman v. L.A.O.) it was held that the appellant was entitled to interest under section 28 and Additional Compensation under section 28(a) was not bound to pay court- fee on the appeal.
61. Section 23(2) of Land Acquisition Act, statutory compensation allowed under subsection, does not form part of compensation awarded and when an appeal is filed under section 54 against the award, no court-fee is payable on the amount of statutory compensation. AIR 1972 Pat.294.
62. ' Interest Payable on enhanced compensation award under the Act, no Court fee is payable thereon by the appellant under section 51 of the Act. Interest payable under section 28 on the excess compensation awarded, is like the interest payable under section 34 and not a part of compensation for the acquisition of the land in the sense that it is a quid pro quo for the value of the land taken. (AIR 1972 Mad. 158 para. 4, 5).
63. ' In the last learned counsel for the respondents argued that reported or unreported rulings of the Supreme Court are equally binding on all Courts. PLD 1968 Lah.148.
64. In view of the above facts and law the above appeal is dismissed, cross-objections are allowed and case is decreed as follows:
(a) Market value at Rs,3,00,000 per acres under section 23(1) of L.A. Act is maintained as awarded by the learned lower Court.
(b) Compulsory Acquisition Charges @ 15% on amount of (a) is maintained as awarded to the respondents.
(c) Additional compensation @ 15% per annum under section 28(A) is maintained as awarded by the learned lower Court.
(d) Simple interest @ 6% per annum on the excess amount under section 28 of L.A. Act is awarded to the respondents.