I. MAHMUD, J.-L. P. As. 164/70 and 165/70 arise out of a common judgment Gated 27-8-70 of a learned Single Judge of this Court (Noorul Arfin, J.) in Civil Reference No. 5/69 under section 18 of the Land Acquisition Act, 1894. They have been heard ' together and sill be disposed of b3 this judgment.
2. Appellants in L. P. A. 164/70 and L. P. A. 165/70 (some of whom tie legal heirs of owners who had died pending the reference and the appeal, held agricultural and garden lands and fruit-growing trees in Deb WWI and Deb Phial which (along with other lance situate in Deb Dieh and Deb Ibrahim Hydery, with which we are not concerned) were acquired by the Government of West Pakistan and the Land Acquisition Act under notifications dated 2-2-60 and 4/5th March 1960 for establishment of Korangi Township. After the necessary inquiry, the Land Acquisition Collector (Deputy Commissioner) (hereinafter referred to as "the Collector"), made his award on 17-12-60 awarding compensation for the agricultural lands and gardens held on unrestricted tenure in both dots Sharafi and Phial at Rs. 3500 per acre respectively. He also granted com--pensation for lands and gardens held on restricted tenure at the usual 25% less rate Le. At Rs. 2,625 and Rs. 3,750 per acre respectively. He also awarded compensation for fruit-growing trees of various types at a special rate per tree at rates 25--30% higher than those suggested by the Director of agriculture, Karachi.
After recording evidence both oral as well as documentary produced by the appellants as sell as on behalf of the Collector, the learned Single Judge modified the award by the impugned judgment dated 27-8-70 and granted compensation as followsFor agricultural lands held on unrestricted tenure, he granted Rs. 5,000 per acre. For garden lands held on unrestricted tenure, he granted Re. 6,000 per acre, while for agricultural lands and garden lands bold on restricted tenure be granted Rs. 3,750 per acre and Rs 4,875 per acre respectively. As regards compensation for trees, the leaned Judge awarded compensation in respect of date trees at One rate of Re. 150 per tree as against Re. 65 per tree granted by the Collector, while the award of the Collector in respect of all other types of treats was maintained. The learned Judge followed his previous judgment in Civil References Nos. 88/6 4 and 22/66 which were decided by him on 8-11-67. Which related to similar lands in Deb Phial and Deh Dieh which were acquired for the same Korangi Township under Notifications dated 17-9-60 and 18-10-60, by which he increased the compensation for agricultural lands held on unrestricted tenure from Re. 3,500 to Re. 5,00 per acre and at Re. 6,000 per acre for garden lands hold on unrestricted tenure against the award of Rs. 5000 per acre for the said garden lands.
3. We have heard learned counsel, namely Mr. S. A. Nusrat and Ma. IQbal Kazi for appellants In L. H.
A. 165/7!0, Mi. Imdadally Agha and Mr. S. M. Sadiq fop appellants in L. P. A. 164/70 and ML. Safdas H.
Hani on behalf of the Government. The main contentions urged on behalf of the appellants are : (1)
That the learned Judge erred in falling to follow his previous judgment in Reference 1/66 decided on 8-11-67 (Exh. 9/7) by which he granted compensation at Rs. 2 per sq. Yard (Re. 9,680 per acre) fox lands fn Deb Thane and Deh Mehran, which were acquired under notifica--petition dated 7-3- 49, and that he should have granted higher rate al Re. 4 pay sq. Yard for the lands in dispute which were acquired several years later fn the year 1960. (2) 'that the learned Judge erred in following his previous Judgment in reference 88/84 and 22/66, dated 9-5-69, by 2 which he granted compensation at Rs. 5,000 per acre for lands in Deb Phial and that he should not have disbelieved the evidence of sales of land in Deh Phial during the years 1957-58, produced by the appellant's witness Dilawar Hussain, as speculative, which showed that the rates were Re. 10,890 per acre (Re.
2.25 per sq. Yard) And Re. 12,100 per acre (Rs. 2.50 per sq. Yard). (3) That the learned Judge failed to consider the evidence end to grant com--pensation as claimed, in respect of various types of fruit-bearing trees, other than date trees, because the appellants' counsel is alleged to have conceded that there was no dispute with regard to compensation for fruit trees others than date tree.
4. With regard to the first submission, the learned Judge declined to follow hiss previous judgment in Reference 1/66 granting compensation at the rate of Re. 2 per sq. Yard (Re. 9,680 per acre ) for lands in Deh Thano and Deh Mehran for two reasons, firstly, because there was evidence of registered sales between the years 1947 and 1948 and, secondly, because the lands acquired from Deb Thane and Deb Mehran were situated on Jinnah Avenue adjoining the Model Colony and the Civil Airport as well as the Pakistan Security Printing press which were off the main Drigh Road (now Shah Faisal Road). At that time, there was a distinct potentiality of the growth of the city of Karachi, towards the Airport and hence there was a rush for purchase of land on the main Drigh Road at higher prices soon after partition. The learned Judge observed that in 1949 there appeared to be no such prospect of the expansion of the city of Karachi towards Korangi, where the present lands in dispute were situate. The witness Gul Muhammad, Supervising Tapedar, examined in the case stated from the plan, Exh. 9/1, that Deb Phial and Deb Sharal are about 4 to 5 miles from Dots Thane and Deh Mehran and in between them, there is a Malir streem or 'nadi'. The witness also stated that in order to reach Deb Phial or Deb Sharafi through main Drigh Road, one has first to go to Landhi and then turn into Landhi Colony and take the Korangi Road i.e. Back towards Karachi in the direction of Korangi. Therefore, the positions of Deb Thane and Deb Mehran, which were situated on the main Drigh Road, were at a distinct advantage. Mr. S. A. Nusrat, learned counsel for the appellant in L. P. A. 165/70, however, drew our a1ention to an admission by Gul Muhammad that the disputed lands were nearer to Karachi from Deh Thano if approached through Kalapul side. But, admittedly this is an indirect route to Korangi ifs Kalapul, which is not a highway approach. We are.
Therefore, inclined to agree with the conclusion reached by the learned Judge in declining to follow his judgment in previous Reference 1/66 in view of the different positions and approaches to the lands in dispute, as compared to the lands situate in Deb Thano and Deb Mehran.
5. With regard to the second submission, the contention of Mr. S. A. Nuarat is that the learned Judge wrongly relied on the evidence of Gul Mohammed, supervising Tapedar, recorded in References 88/64 and 22/66, and wrongly ignored the evidence of sales produced by Dilawar Husain in the present reference. In the former reference, Gul Muhammad stated that on 8,6-57, 126 acres 7 ghuntas situated in Deh Dieh and Deb Phial were sold to Manzoor Ahmad Sabi at Re. 9 per sq. Yard.
On 15-3-58 survey No. 105 of Deb Phial was sold to Syed Ainul Abedin Bukhari at Re. 4540 .Per acre Le. At Re. 1 per sq. Yard. Again, on 3-2-58 Mst. Zainab sold Surveys Nos. 31 and 34 of Deb Dieh to Toric Ahsanullah at the rate of Re. 900 per acre: and on 1-3-58 Faziullah and Abdul Habib sold Survey Nos. 33 and 34 in Deb Dieh to Toric Ahsanullah at the same rate. On the other band, in the present reference. Dilawar Husain produced extracts of the revenue record, Exh. 9/3 and Exh. 9/4, which showed that on 13-6-57 Manzoor Ahmad Sabi sold the said lands, which he had purchased, to P. And T. Co-operative Society at the rate of Re. 10,890 pvr acre (Re. 2.25 per sq. Yard) and on 10- 6-58 Syed Ainul Abedin Bukhari sold Survey No. 105 to the Peoples Co-operative Housing Society at the rate of Rs. 12,100 per acre (Re. 2,50 per sq. Yard). Counsel's contention is that these rates represented the Market rates prevailing in the years 1957/1958 and should have been followed. In L.
P. As. Nos. 134169, 118/69, 195/70, 10/69, 108/69 and 133/69, which we have disposed of lay our judgment dated :6th September 1977, we have held that the Co-operative Societies paid much higher rates than those prevailing in the market and that the societies did not act as prudent purchasers would have done having regard to the market conditions. W have, therefore, held that the rates paid by these societies could not be accepted as the market rates of the lands situate in Deb Phial and Deb Dieh. In the instant appeals also, the evidence snows that Manzoor Ahmad Sabi purchased the survey numbers in Deb Phial on 8-6-57 at Re. 9 per sq. Yard and he sold the same 5 days later to the Y. And T. Co-operative Society at the fancy rate of Re. 2.25 per sq. Yard. Likewise, Syed Ainul Abedin Bukhari who had purchased Survey No. 105 in Deb Phial at Re. 1 per sq. Yard sold the same three months later to the Peoples Cooperative Housing Society at the high rate of Re. 2.25 per sq. Yard. Clearly, the rates at which the societies purchased these Survey numbers, could not represent the current market rate prevailing at that time. No doubt in certain awards, the Collector has accepted these rates and awarded compensation at Re. 3.06 per sq. Yard to the cooperative societies, ride award dated 31-7-65 in respect of Survey No. 18 Deb Diets and Survey No. 200 Deb Phial, acquired under notification dated 12-6-65. This rate was also enhanced to Re. 3.37 per sq.
Yard in Reference 6/67 (Exh. 9/6) by the High Court. But, we bad pointed out that the Collector was directed to treat the case of cooperative societies differently, in view of a decision reached in the Commissioner's office, dated 3-4-62, that cooperative societies should be given compensation at the rates at which they purchased the lands plus expenses for sikni etc. We had observed that these awards by the Collector were not their independent acts and that the awards were et doubtful value.
6. In that judgment disposing of the aforesaid letters patent appeals, we have held that after taking into consideration the several sales transactions and the rise in values of lands, it would be legitimate to hold that in the year 1957-58 the average market rate was approximately between Re.
1 to Rs. 125 per sq. Yard and conceding a steady rise in pries at the rate of paisa 10 per sq. Yard per annum, we fixed the market rate for the relevant year 1960 at the rate of Rs. 1.50 p-r sq. Yard or approximately Re. 6,000 per acre. In the instant case, the lands are also situate in Deh Phial and the lands in Deb Sharafi are adjoining the land in Deb Phial. We would, therefore, fix the same market rate for the lands in both Dehs in the relevant year 1960, Le. At the rate of Re. 6,000 (Re. Six Thousand) per acre for lands held on unrestricted tenure and correspondingly, at 25f less rate for lands held on restricted tenure. We would, therefore, vary the impugned judgment accordingly. As far as the garden lands held on unrestricted tenure are concerned these is not evidence worth the name except the bare statement of Dilawar Husain (appellant in L. P. A. 1.65/60) that he had purchased garden lands in the year 1956 at Rs. 2,300 or Rs. 2,400 per acre. We, therefore, maintain the rate fixed by the learned Judge for garden lands held on unrestricted tenure.
7. With regard to the third submission relating to grant of compensation for fruit-bearing trees, the appellants relied on (a) the statement of three fruit brokers recorded before the Collector, viz. Noor Mohammad, Shah Bag and Jan Mohammad and (b) the evidence recorded in Court before the learned Single Judge, vie. That of Ghulam Nabi, Mohammad Ishaq and Mohammad Saleh. With regard to (a), by some accidental omission, the Collector failed to transmit these statements to the Court along with the reference and, therefore, they could not be admitted in evidence, as ordered by Ghulam Rasool Sheikh, J. (as he then was) in his order dated 27-3-70 in reference 5/69.
Therefore, Mr. Iqbal Kazi, learned counsel for some of the appellants in L, P. A. 165/70, moved an application under Order XLI, rule 27, C. P. C. For receiving certified copies of the said statements in evidence which by consent, was ordered to be heard also with this appeal. In the circumstances, we would allow Mr. Iqbal Kazi's application in the exercise of inherent power of the High Court, as admittedly, the statements wen inadvertently not forwarded by the Collector and, therefore, could not be admitted in evidence. The Collector, however, placed no reliance o those statements, for he based his award of rate of compensation for trees at 25 to 30% above the rates suggested by the Director of Agriculture. Karachi, to whom the matter was referred for report, because it was difficulties to evaluate the various fruit-bearing trees as per Acquisition Manual. We C have considered these statements of the fruit merchants and find that they` are nothing but expression of general opinions on average not income from the trees per year. As such, we also place no reliance on the same.
8. With regard to (b), the evidence of the three witnesses recorded in Court, the first deposition is that of Ghulam Nabi a Zamindar of Karachi, who owned a fruit garden. He produced a chart of fruit-bearing tree, their life, fruit bearing period, expenditure on maintenance and not profit per year. In cross-examination he admitted that age of tree and capacity D for fruit bearing, depended on quality of the land etc. He also admitted that he kept no accounts of the income from his garden. `,Therefore, the evidence of the chart is of very little value, even if it is not controverted in cross-examination. To the same effect is the evidence of Mohammad Iqbal. The third witness, Mohammad Saleh, an employee of Messrs Herjina Ltd., produced a 3-year agreement of lease of date trees for extraction of toddy in Deh Sharafi which his company entered into with Rajabali Ghnlamali. The learned Single Judge awarded the rote at Rs. 150 per date tree, which considering the average fruit-bearing life at 20 years the capitalized value may justifiably be fixed at Re. 200 (Rupees Two Hundred) on average B basis. We accordingly modify the rate fixed by the Impugned judgment and fix the rate of compensation for date trees at Re. 200 per tree. As the appellants have failed to discharge the burden of proving the not annual income of each kind of tree other than date tree, we would maintain the judgment of the learned Single Judge with regard to other kind of trees. Mr. Fani, however, contended that as the lands are bring compensated as building sites, nothing can be allowed in addition for trees, except for the timber. As held in Shunmuge Velavuda Mudaliar v. Collector of Tanjore AIR 1926 Mad. 945(2). But, that case is distinguishable because what was acquired in that case was a coconut tope valued as a tope and not as site for building purposes. Therefore, Mr. Fani's submission has no force.
9. In the result, the impugned judgment dated 27-8-70 is modified to the extent above-stated and the appeals stand disposed of accordingly. There will be no order as to costs.