IN
THE HIGH COURT OF SINDH, SUKKUR BENCH, SUKKUR
1st
Civil Appeal No.D-03 of 2010
1st
Civil Appeal No.D-04 of 2010
1st
Civil Appeal No.D-05 of 2010
1st
Civil Appeal No.D-10 of 2010
Before:
Mr. Justice
Muhammad Junaid Ghaffar
Mr.
Justice Zulfiqar Ali Sangi
Appellants in 1st
C.A. No.3/2010: Muhammad Nawaz through
legal heirs, through Mian Abdus Salam Arain, Advocate.
Appellants in 1st
C.A. No.10/2010: Muhammad Azeem and
others through Mr. Jamshed A. Faiz, Advocate
Respondents in
1st
Appeal No.4&5 /2010: Through
Mr. Ahmed Ali Shahani, AAG.
Date of hearing: 15-02-2022
Date
of decision: 15-03-2022
JUDGMENT
Zulfiqar Ali Sangi, J: By
this common judgment, we would like to dispose of all these four appeals
arising out of same judgment dated 18.02.2020, passed by learned 3rd
Additional District Judge, Mirpur Mathelo, in Land Acquisition Case No.05/1997
& 06/1997, whereby the appellants have been compensated @ Rs.200,000/- per
acre with 15% compulsory charges under Section 23(2) of the Land Acquisition
Act; besides have been awarded 6% interest from the date of notification under
Section 4 & 6 of Land Acquisition Act.
2. Briefly the
facts as averred in the 1st Civil Appeal No.D-03 & 10 of 2010 are
that the Respondent No.1/Land Acquisition Officer acquired the land i.e. Survey
No.438 measuring (04-03) acres of Appellants in 1st Civil Appeal
No.03 of 2010 and Survey Nos.437, 439 consisting 7-32 acres belonging to
Appellants in 1st Civil Appeal No.D-10 of 2010 for the purpose of
construction of the office of DPO and Police Line in newly created District
vide Notification dated 21.03.1995 issued under Section 4 of Land Acquisition
Act and Notification under Section 6 of the urgency clause; that Appellants herein
filed a C.P. No.D-329 of 1995, which was withdrawn on assurance of Land
Acquisition Officer that land owners will be compensated accordingly as per
existing market value; that in this regard Respondent No.1 has passed the award
on 13.03.1997 and was pleased to fix the price of acquired land of the
appellants at the rate of Rs.70,000/- per acre alongwith 15% urgency clause
charges; besides compensation of crop, vegetables and trees to the land owners
with interest at the rate of 6% per annum; that being aggrieved and
dissatisfied with the compensation awarded by Land Acquisition Officer, the appellants
made Reference under Section 18 of the Land Acquisition Act, 1984 to the
Respondent No.1, who submitted the same to learned District Judge, Ghotki for
proper adjudication and the learned District Judge transferred the same to
learned 3rd Additional District Judge, who after hearing the
arguments, was pleased to fix the compensation of the lands of the Appellants
acquired by Land Acquisition Officer at the rate of Rs.200,000/- per acre; however,
Appellants in 1st Civil Appeal No.03 of 2010 further averred that Respondent
No.1, at the time of calculation, calculated the amount of compensation for the
land only 3-39 acres when the appellant is owner of the 04-03 acres, which
excess area neither calculated for compensation nor returned to the Appellant
and the learned trial Court did not give any finding on this controversy;
besides learned lower Court has not considered the documentary proof of the
market rates and fixed lowest rate without applying judicial mind which
required enhancement looking to the prime location of the land.
3. Now coming to
the connected Appeals bearing 1st Civil Appeal No.D-04 & 05 of
2010, filed on behalf of the Government of Sindh, wherein it has been averred
that lands of the appellants were acquired for the purpose of construction of
Police Line Ghotki and in this regard compensation was awarded at the rate of
70,000/- per acre plus 15% urgency clause charges; besides compensation in
respect of crop, vegetables and trees was also passed with the rate of 6%
interest per annum; however Appellants made a Reference to Respondent No.1, who
submitted the same before the competent Court, who without considering the
material and evidence produced by the Land Acquisition Officer, allowed the Reference
and enhanced the compensation from Rs.70,000/- per acre to Rs.200,000/- per
acre with 15% compulsory charges and 6% interest till the final payment.
4. Mr.
Jamshed Ahmed Faiz learned counsel for the appellants in 1st Appeal
No. 10 of 2010 has contended that the
award was passed by the Land Acquisition officer without considering the fact
that the land came within the jurisdiction of Municipal Committee and have much
value as compared to award passed by the Land Acquisition officer; that the
Land Acquisition officer so also the District Judge failed to consider the value
of adjacent land which was sold out by the different people and the appellants
had produced such sale deeds in respect of those lands; that the land which was
acquired by the government under the Notification dated: 21st November 1994 falls within the limits of Municipal committee, however, the same
aspect of the land has not been considered properly and the award should be
passed as of commercial land and not as of agricultural land; that the
Sub-Registrar was also examined who too produced the relevant record in respect
of the value of the adjacent lands but the same was also not considered by the
District Judge; that the Collector (DDO) was examined who also admitted that
the land at that time was within the jurisdiction of Municipal Committee; that the
award should be given being commercial land and not being agricultural land;
that the market value has also not been considered which is mandatory
requirement under section 23 (2) of the Land Acquisition Act, that the
Government has not even paid the enhanced amount ordered by the District Court
therefore the appellants are also entitled for payment of interest under
section 28 of Act ibid. Lastly, he submit that the appeal may be allowed and
rate of compensation may be enhanced. He relied upon the cases of Government of Sindh and 2 others v. Syed
Shakir Ali Jafri and 6 others (1996 SCMR 1361), M. Ashraf Parwaz v. Frof. Asghar
Ali Naaz (1995 SCMR 45), Fazalur Rahman and others v. General Manager, S.I.D.B.
and another (PLD 1986 SC 158), Mrs. Gunj Khatoon and another v. The Province of
Sindh through Secretary, Revenue Department, Karachi and another (1987 SCMR
2084), Government of Pakistan v. Hamid Akhtar [PLD 1988 SC (AJ&K) 06], Mst.
Maryam and 4 others v. Irshad Ahmed and others (1988 SCMR 33), Province of
Punjab through Collector, Sheikhupura and others v. Akbar Ali and others (1990
SCMR 899), Province of Punjab through Collector Bahawalpur, District Bahawalpur
and others v. Col. Abdul Majeed and others (1997 SCMR 1692) and Ejaz Ahmed others v. Province of Sindh and another [2021 SBLR (Sindh) 1086].
5. Mr.
Abdul Salam Arain learned counsel for the appellants in 1st Civil
Appeal No. 03 of 2010 while adopting the arguments of Mr. Jamshed Ahmed Faiz further
submitted that the land of appellants was acquired from Sr. No. 438 area of
(4-03) acres and the possession of said area was taken and utilized by the
Government but the compensation was given for an area of (3-39) acres and
(0-04) acres has not been paid to the appellants; that the PW Ashrafuddin also
admitted that area of (4-03) acres of the land of appellant Nawaz was acquired and compensation was given only for
(3-39) acres and he further admitted that remaining land has not been returned
to him but was utilized; he was not cross examined by the Government on this
issue nor the government denied it; that several documents were exhibited in
the evidence which shows that the adjacent land was sold out on higher price
than the compensation awarded; lastly, he prayed that the appeal may be allowed
and compensation may be enhanced. He relied upon the cases of Collector of Land Acquisition, Abbottabad
and others v. Alhaj Sardar Bahadur Khan and others (2009 SCMR 224), WAPDA
through S.E Acquiring Cell CRBC Project WAPDA D.I. Khan and another v. Syed Ali
and others (2010 SCMR 82) and Province of Punjab v. Syed Bashir Ahmed Yousuf
ETC. (PLD 1982 SC 27).
6. Mr.
Ahmed Ali Shahani Assistant Advocate General Sindh in 1st Civil
appeals NO. 4 and 5 of 2010 for appellants and in 1st
Civil appeals No. 3 and 10 of 2010 for
the respondent contended that the Land Acquisition officer after hearing the
parties rejected the objections on 18.03.1997; that the Land Acquisition officer
passed the award after considering all aspects of the case; that land was
agricultural land and was not commercial at the time when it was acquired; that
though the registered sale deeds produced by the respondent were of the land of
said area but land of each deh has its own value; that the award was passed after considering the
valuation report submitted by the concern Mukhtiarkar; that no witness was
examined who deposed the proper value of the land; that for valuation, expert’s
opinion was required in view of Article 59 of the Qanoon-e-Shahadat 1984; that
the land of Nawaz was though acquired (4-03) acres but after inquiry only
compensation of (3-39) acres was awarded; that the District Court while
enhancing the rate has not considered the real facts that the land was agricultural
and not commercial; lastly, he prayed that the Judgment of District Court may
be set-aside and award passed by the Land Acquisition officer may be restored.
He relied upon the cases of land
Acquisition Collector, Sargodha and another V. Muhammad Sultan and another (PLD
2014 SC 696), Haji Muhammad Yunus V. Land Acquisition Officer and Assistant
Commissioner, Shahdadpur (2000 YLR 1185), Kolkata Metropolitan Development
Authority and another V. Gobinda Chandra Makal and another ( 2012 SCMR 1201), Special
Land Acquisition Officer V. Maharani Biswal and others (2012 SCMR 1179),
Government of N.W.F.P. and others V. Akbar Shah and others (2010 SCMR 1408),
land Acquisition Collector, Abbottabad and others V. Muhammad Iqbal and others
(1992 SCMR 1245) and Dr. M. Aslam Khaki V. Syed Muhammad Hashim and 2 others
(PLD 2000 SC 225).
7. Mr. Jamshed Ahmed Faiz while rebutting the arguments
of learned AAG has submitted that for filling appeal on behalf of the
Government proper sanction is required under section 54 read with section 18 of
the Land Acquisition Act, 1894 but same has not been produced before this court
therefore the appeals filed on behalf of the Government are not maintainable; that proper court fees for filing
appeals has not been affixed by AAG with the memorandum of appeals therefore on
this score alone the appeals are liable to be dismissed.
8. We
have heard learned counsel for the parties and have gone through the relevant
record and the case law cited at the bar with their able assistance.
9. Firstly
we have taken 1st Appeals No. 4 and 5 of 2010, filed by the Land
Acquisition Collector, Mirpur Mathelo and others in which learned counsel for
the respondents raised objections on the maintainability of the appeals on the
grounds (1). that
the proper sanction from the solicitor for filing the appeals is not produced
and the appeals filed by the Assistant Advocate general are not competent, (2). that the
proper court Fees for filing the appeal has not been affixed with the memorandum
of appeals. In respect of the first objection for non-production of the
sanction order of the solicitor we are of the view that this issue had already
been decided by the Honourable Supreme Court in the case of Land Acquisition Officer and Assistant Commissioner, Hyderabad
V Gul Muhammad through Legal Heirs (PLD 2005 SC 311), wherein
Honourable Supreme Court has held as under:-
7.
It would appear from the original record of four Appeals Nos. 16, 17, 18 &
49 of 1988 and Review Applications Nos. C. As. 504 of 1993, 458 and 228 of 1994
that the same have been presented by the Assistant Advocate‑General Sindh
and Additional Advocate‑General Sindh respectively in the High Court of
Sindh, therefore it could not be said that appeals were not properly presented
before the Court of law. It may be observed that it was not necessary to place
on record the sanction order of the solicitor authorizing the Advocate‑General
Sindh to file appeals, considering that the sanction order of the solicitor is
sent to the Advocate‑General for filing appeal who after having received,
has either to file appeal or to refer back to the solicitor in case it is found
by him not a fit case where appeal be preferred in the High Court, but having filed appeal in the High Court
it would be considered that he has performed his official function in
accordance with usual course of business which cannot be questioned before this
Court being internal business between the solicitor and the Advocate‑General.
In the circumstances it cannot be said that appeal preferred by the Government
was incompetently filed so also in respect of cross objections. In the
circumstances the contentions have no force and merit.
10. From
perusal of the above judgment of the Honourable Supreme Court the objection so
raised by the learned counsel for the respondent in respect of non-filing of the
sanction order for filing the appeals along with the memorandum of appeals is
overruled.
11. The
second objection of the learned counsel for the respondent is that the appeals
were preferred without affixing the required court fees hence the same are not
maintainable and liable to be dismissed. Learned AAG has admitted that no court
fee was submitted along with the memorandum of the appeals and submitted that
in view of Notification No.ICS/BOR/RS&EP/97-910 dated 26th July,
1997, no court fees is required to be affixed by the Government of Sindh.
However, Mr. Abdus Salam Arain in 1st Civil Appeal No. 03 of 2010
filed statement dated 15.02.2022 along with court fees.
12. We
have gone through the Notification dated 26th July, 1997 placed by
the Assistant Advocate General, which reads as under:-
No.ICS/BOR/RS&EP/97-910.
In exercise of the power by Section 35 of the Court Fees Act, 1870, the
Government of Sindh are pleased to remit court fees
payable by the Sindh Government under the aforesaid Act with immediate effect.
13. In
view of the above Notification the appeals filed by the learned Assistant
Advocate General on behalf of the Government of Sindh are maintainable without
affixing the court fees and required to be decided on merits along with the 1st
Civil Appeal No. 10 of 2010, in which court fees has already been affixed.
There remain only one Appeal filed by the Muhammad Nawaz in which court fees
was filed after the expiry its limitation period.
14. We
have heard learned counsel for the parties and have gone through the relevant
provisions of law and carefully examined section 8 of the Court Fees Act 1870, and
the same is re-produced as under:-
8. Fee on
memorandum of appeal against order relating to compensation.– The amount of
fee payable under this Act on a memorandum of appeal against an order relating
to compensation under any Act for the time being in force for the acquisition
of land for public purposes shall be computed according to the difference
between the amount awarded and the amount claimed by the appellant.
15. From
perusal of the above cited provision it is clear in our mind that the court
fees was required to be affixed with the memorandum of appeal which was not
affixed in Appeal No.D-03 of 2010 nor any application under section 149, CPC,
was filed alongwith the memorandum of appeals or after its filing till the
objection raised. As per section 149, CPC, the Court
has a power to call upon the appellant or to extend the time for payment of
deficit court‑fee stamp. This provision shows that a vast discretion has
been vested with the Court but it may be observed that such discretion is not
to be exercised arbitrarily. For the ready reference section 149, CPC, is
re-produced as under:-
"149. Power
to make up deficiency of court‑fees.‑‑Where
the whole or any part of any fee prescribed for any document by the law for the
time being in force relating to court‑fees has not been paid the Court
may, in its discretion, at any stage, allow the person, by whom such fee is
payable, to pay the whole or part, as the case may be, of such court‑fee
and upon such payment the document, in respect of which such fee is payable,
shall have the same force and effect as if such fee had been paid in the first
instance.”
16. It is settled by now that in the
case appellant having filed an appeal without affixing any court‑fee on
memorandum nor assigned any reason as to why the court‑fee was not paid,
kept silent till objection was raised by the opposite‑party and period of
limitation for filing of appeal had elapsed, he could not be entitled to any
indulgence as he was not only negligent but his conduct was contumacious. Even
the permission for payment of deficit court‑fee cannot be claimed as a
matter of right specially where no reasons were mentioned in the first instance
but subsequently the grounds of poverty and wrong advice of Advocate were
urged. Reliance can be placed on the case of Hidayatullah v. Muhammad Ibrahim (1981 SCMR 381), State Life Insurance
of Pakistan v. Mst. Zainab Khatoon (PLD 1987 SC (AJ&K) 5) and Shah Nawaz
and 6 others v. Muhammad Yousuf and' 3 others (1972 SCMR 179). Similarly where a plaintiff puts
ridiculously low court‑fee, or where the plaint appears to have been
filed not for any bona fide object of its serious pursuit, but to tease or
harass another or others concerned, then a Court will not be justified to allow
time for validating such a plaint and destroy the plea of limitation which may
have been perfected in favour of a defendant in the meantime sheerly due to non-seriousness
of the plaintiff or causes of similar nature. A plaintiff who is guilty of contumacy, positive mala fides, or lack of
bona fides will not be entitled for any indulgence. In this respect similarly
poverty or ignorance will also be no excuse. Reliance can be placed on the
case of Mst. Walayat Khatun V
Khalil Khan and another (PLD 1979 SC
821).
17. Record reflects that the
appeals were preferred in the year 2010 and more than 10 years were passed but no
efforts for affixing the court fees were made in 1st Civil Appeal
No. 03 of 2010, however the same was paid on 15-02-2022 and only in the 1st
Civil Appeal No. 10 of 2010 court fees was affixed within time, the appellant in 1st Civil Appeal No. 03 of 2010
being negligent and his conduct being contumacious, there existed no reasons to
show any indulgence to him. Therefore in our view the appeal is barred
by Article 156 of the Limitation Act, 1908, which provides ninety days for filing
the appeal before the High Court from the date of decree or order under the
Code of Civil Procedure, 1908, except in the cases provided for by Article 151
and Article 153 of the limitation Act, 1908.
18. We have gone through the entire record and found that all these four appeals are arising from one
and same award passed by the Land Acquisition Officer on 13-03-1997 and two of
them were filed on behalf of the Government of Sindh in which the court fees is
exempted under the Notification dated
26.07.1997 and in the 1st Civil Appeal No.D-10 of 2010 court
fees was affixed with the memo of appeal and
are within time so only remains 1st Civil Appeal No.D-03 of
2010 in which court fees was not affixed with memo but the same was paid
subsequently. Since we are deciding three civil appeals on merits therefore we
condone the delay in filing 1st Civil Appeal No.D-03 of 2010 and
decided to decide all four appeals on merits. Reliance can be placed on the
case of Muhammad Ashraf and others v. U.B.L
and others (2019 SCMR 1004), wherein Honourable Supreme Court of Pakistan
has held as under:-
4. Out of the three
instant Civil Petitions before us, one civil Petition bearing No.3032-L of 2016
is barred by limitation and accompanied by an application for condnation of
delay i.e. Civil Misc. Application No.3057 of 2016, while the other two Civil
Petitions bearing Nos.2701-L and 2994-L of 2016 are within time. It is settled
law that where an order or judgment is challenged through separate proceedings
be it appeals or petitions, some of which are within time, while the others
have been filed beyond the period of limitation, all such appeals or petitions
ought to be decided on merit especially when an orders in one appeal or
petition (within time) would apply to the other appeal or petition, which may
be barred by limitation. Consequently, it is appropriate to decide all three
Civil Petitions on merits.
19. Honourable
Supreme Court of Pakistan in case of Commissioner
of Income Tax and others v. Messrs Media
Net Work and others (PLD 2006 SC 787) also held as under:-
35. Some
of these cases such as Civil Appeals No.282, 299, to 309, 312 to 315, 835, 837,
840, 842, 844/2004, 1211, 1212, 1213, 1214, 1641, 1704/2005
have been filed after the expiry of limitation period. They are accompanied by
the applications for condnation of delay. Since the other appeals were filed
within limitation period, therefore, we condone the delay in all such appeals
for the reasons stated in the applications for condonation of delay and by
following principles laid down in the cases of Sheikh Muhammad Rashid (supra),
Ch. Manzoor Elahi (supra), Mehreen Zaibun-nisa (supra) Fazal Elahi and others
(supra) and Province of Punjab v. Muhammad Tayyab and others (1989 SCMR 1621).
The cases of Muhammad Hussain and others (supra) and Ali Muhammad (supra)
referred to by Mr. Shahid Hamid, Senior Advocate Supreme Court are
distinguishable from the facts of these cases.
20. Turning to the merits of the case
it is observed
that the trial court on the pleadings in both the references framed the same issues which are (1). Whether the compensation
awarded is in-adequate? (2). What should the order be?.
21. Before
examining the evidence produced by the parties to prove the above issue, it is
necessary to first know about the word “compensation” used in the Land
Acquisition Act, 1894, for the payment of price of land to affected landowners,
and the word “market value”. Section 23 of the Land Acquisition Act, 1894, is
reproduced as under:-
23. Matters to be considered in determining
compensation.-(1) In determining the amount of compensation to be awarded for
land acquired under this Act, the Court shall take into consideration–
first, the market-value of the land at the date of the
publication of the [notification under section 4, sub-section (1)];
secondly,
the damage sustained by the person interested, by reason of the taking of any
standing crops or trees which may be on the land at the time of the Collector's
taking possession thereof;
thirdly,
the damage (if any) sustained by the person interested, at the time of the
Collector's taking possession of the land, by reason of severing, such land
from his other land;
fourthly,
the damage (if any) sustained by the person interested, at the time of the
Collector's taking possession of the land, by reason of the acquisition
injuriously affecting his other property, moveable or immoveable, in any other
manner, or his earnings;
fifthly,
if, in consequence of the acquisition of the land by the Collector, the person
interested is compelled to change his residence or place of business, the
reasonable expenses (if any) incidental to such change; and 1 Subs. by the Land
Acquisition (Amdt.) Act, 1923 (38 of 1923), s. 7, for “declaration relating
thereto under s. 6”.
sixthly,
the damage (if any) bona fide resulting from diminution of the profits of the
land between the time of the publication of the declaration under section 6 and
the time of the Collector's taking possession of the land. (2) In addition to
the market-value of the land as above provided, the Court shall in every case
award a sum of fifteen per centum on such market-value, in consideration of the
compulsory nature of the acquisition.
22. There
is much difference between the terms “compensation” and “market
value”. The market value is a highest price for which a property is
exchanged on the date of valuation between a willing buyer and a willing seller
in an arm's-length transaction wherein the parties acted knowledgeably, prudently,
and without compulsion. Whereas, the term compensation though used in the Land
Acquisition Act, 1894 but the same has not been defined therein. However, as
per dictionary meaning the compensation means "something, typically money,
awarded to someone in recognition of loss, suffering, or injury" or
"money that is paid to someone in exchange for something that has been
lost or damaged or for some problem". Since the property was acquired
against the will of owner, therefore, in order to eliminate the sense of
deprivation and discrimination, the affected landlord is compensated with the
amount not less than the market value prevailing at the time of acquisition. It
would be unjust to the landowner if the amount of compensation is less and
similarly it would be unjust to the public interest, if he is awarded more and
it is based on the principle 'quid pro quo'. Therefore, in order to maintain
equilibrium between individual interest of an affected landowner and general
interest of public at large, the compensation should always be that amount on which
a seller can willingly sell his land and that is not much or less than the
market value. As has been held in the case of Collector Land Acquisition,
Haripur and another V. Col. Sardar Ahmed Yar
Jang Durrani and another (2021 CLC 255).
23. However, to determine/ascertain the compensation of the acquired
land the Honourable Supreme Court of Pakistan in the case of Land Acquisition Collector and others v.
Mst. Iqbal Begum and others (PLD 2017 SC 719), has held as under:-
"It is well
settled by now that "to determine compensation the Court must ascertain
the value on the date of notification, considering various factors including
nature and location of acquired land and sale price of adjoining lands. In
assessing market value of land, its location, potentiality and price evidenced
by transactions of similar land at the time of notification are factors which
should be kept in view. One year's average of sales taking place before
publication of notification under section 4 of similar land is merely one of the
modes of ascertaining market value and is not an absolute yardstick for
assessment of compensation. Moreover, status of acquired land, its
potentialities and its likelihood of development and improvement would be
necessary factors for determining rate of compensation."
24. It is settled law that the party approaching the
Courts for grant of relief would have to discharge the burden of proving his
claim and has to stand on his own legs and any weakness in case of opposite
party lend least support to his claim. Reliance is placed on the cases of Sultan, Muhammad and another v. Muhammad
Qasim and others (2010 SCMR 1630) and Amjad Ikram v. Mst. Asiya Kausar and 2
others (2015 SCMR 1).
25. To prove the
claim both parties led their evidence and in 1st
appeal No.3 of 2010 the Attorney of appellant was examined and to prove his
claim he exhibited a certificate of Municipal Corporation Mirpur Mathelo at exhibit
32 and the certificate of Assistant Director Local Government at exhibit 33 in
respect of the land acquired by the respondents which reflects that the land
was situated in Ward No. 9 of Municipal Corporation Mirpur Mathelo. He also
produced a sale deed dated: 01-02-1995 at exhibit 34 where in the rate of land
per acre is mentioned as Rs. 6,08,700/=, sale deed dated 26-04-1995 at
exhibit 35 showing the rate of Rs. 20,30,769/= per acre, the sale deed
dated 19-03-1992 at exhibit 36 which reflects the rate of Rs. 2,45,000/= per
acre, sale deed dated 18-11-1992 at exhibit 37 which reflects the rate of
land as Rs. 8,00,000/= per acre, sale deed dated 18-11-1992 at exhibit 38
which reflects the rate of land at Rs. 3,20,000/= per acre.
26. Appellant also produced two
witnesses namely Ghulam Sarwar and Muhammad Iqbal; they also supported the
version given by the appellant in respect of the valuation of land and the
value of land adjacent to the land of appellant. Thereafter the side of
appellant was closed through statement
.
27. The official respondent examined
only one witness Hafiz Mumtaz Ali Senior Clerk in the office of DDO Revenue
being authorized by the DDO Revenue. Who during cross-examination has stated
that “It
is also a fact that the said S. No. is situated in deh Wah Bakro and the said
area is located within the limits of Municipal Committee of Mirpur Mathelo, i.e
Ward No. 9. It is a fact that acquired land viz. S. No. 438 is situated at
National Highway leading from Sindh to Punjab. It is also fact that land
acquired land is situated just opposite the FFC Company. It is also a fact that
there is a grain market located adjacent to the FFC Company. It is also a fact
that adjacent to the grain market there is petrol pump belonging to one Nisar
Ahmed. It is a fact that there is a showroom of motorcycles adjacent to the
acquired land but it has recently been established about two years back. It is
also a fact that the petitioner Muhammad Nawaz, Muhammad Azeem, Muhammad Husain
and Rahim Bux filed a petition before the High Court of Sindh Bench at Sukkur
with a prayer that the compensation of the acquired land be
given to them on the prevailing market rates.” This witness also admitted that in the Notification
under section 4 of the Land Acquisition Act, area from the S. No. 438 (04-03)
acres was acquired. Further he stated in his cross-examination that “It
is a fact that we had paid the compensation only in respect of 03-39 acres of
S. No. 438.” However in respect of acceptance of the compensation the
same witness in his cross-examination stated that “it is also a fact that the
petitioner received the amount of compensation under protest.”
28. From careful perusal of the
evidence of the parties it is established that appellants have proved the case
in respect of the entire land of 04-03 acres from S. No. 438 being acquired and
the trial court has not considered this aspect of the case nor discussed in the
impugned judgment. Resultantly, the appellants are entitled for the
compensation of 04-03 acres as per rate mentioned below in this judgment.
29. Turning to the 1st
Appeal No.10 of 2010 the appellant Muhammad Azeem was examined who deposed that
he and his
brothers Mohammad Hashim and Rahim Bux are co-sharers in S.No.437 &
439 to the extent of 7-acres and 32
ghuntas in deh Wah Bakro taluka Mirpur Mathelo. The land in full area was
acquired by the government. After the issuance of Notification under Section 4
of the Land Acquisition Act for the proposal of acquisition of their land, They
filed constitution petition before the Honourable High Court of Sindh Bench at
Sukkur vide C.P. No.D-329/1995 Re: Mohammad Azeem & others Vs: D.C. Ghotki
& others, seeking the annulment of the proposed acquisition of the
land. In the petition the Deputy
Commissioner, Assistant Commissioner and Mukhtiarkar Mirpur Mathelo filed
comments wherein they undertook to give them compensation as per market value
of the land and before taking the possession of the land under acquisition.
On this undertaking they agreed to the proposed acquisition of land and
withdrew their petition. They had also filed objections before Assistant
Commissioner/ Land Acquisition Officer Mirpur Mathelo. The photocopies of
objection and petition with annexure were exhibited as (Ex.30 to Ex.36). He
further deposed that their land in acquisition falls in the limits of
Municipal Committee Mirpur Mathelo. He also produced certificate to
this effect issued by C.M.O. Municipal Committee Mirpur Mathelo dated
28.05.1995, certificate issued by Town Office Town Committee Mirpur Mathelo
dated 05.12.1994 as (Ex.37-38), town maps of deh Wah Bakro showing location of
the land as (Ex.39 to 40) and map prepared by them showing the location of land
as (Ex.41). The land under acquisition is within the proximity of New Annaj Mandi,
Pak Saudi Fertilizer, Nisar Petroleum Pump, Bus Stand
at National Highway Bypass, and Degree College etc as well as the shops on the
National Highway. Towards north of our land village Alvi is situated. In the
year 1992 to onward 1995 the approximate value of the adjoining land was Rs.20,000= to 25,000/= per vassa which makes the approximate a
value of per acre land at Rs.8 to 10 lacs. In respect of the the value
of the land in acquisition, he produced certified true copies of the registered
sale deed between Mohammad Sanwal and others (Vendors) and in favour of
Secretary Market Committee, in respect of 4 acres land situated in deh Jehan
Khan Unar taluka Mirpur Mathelo for the purpose of Annaj Mandi in consideration for
Rs.9,80,000/= in the year 1992 vide (Ex.42). He
also produce certified true copy of registered sale deed in respect of 23
ghunta land in Deh Mirpur tapo Mirpur Taluka Mirpur Mathelo executed between
Abdul Sattar Magsi and others in favor of Mohammad Nawaz & others in
the sum of Rs.3,50,000/= in the year 1995 as (Ex.43). The Land
Acquisition Officer passed award at the rate of Rs:70,000/=
per acre and they received the said compensation under protest. They claim the
rate of their land acquired at the rate of Rs.20 per sq. Ft. which comes approximately
to Rs:21,78,000/= per acre. They also claimed
the price of the crop standing at the time of acquisition in S.No.437 and
S.No.439 about Rs:60,000/= There were about 56 to 60 standing trees in land
and they claimed 15 percent increase on the price of the land as per value of
the land. They also claimed the benefit of Section 28-A of the Land Acquisition
Act for the purpose of determination of value of the land. The compensation of
the land by way of award passed by Land Acquisition Officer Mirpur Mathelo was
not according to the market value of the land in the year 1995 and there was no
adequate compensation in the award regarding Section 23(II), 24 A and
compensation of urgency clause has not been awarded. This witness was cross
examined but the documents exhibited by him were not challenged nor denied the
rates mentioned in the sale deeds produced by the witness in respect of the
land adjacent to the land acquired.
30. Manzoor
Hussain s/o Ghulam Mustafa (Witness No.2) the Tapedar of Deh Wah Bakro
was examined who brought the revenue record of Deh Wah Bakro pertaining to the
year 1980 to onward. As per his evidence the Survey No.437 and 439 of Deh Wah
Bakro measuring 3-09 acres and 4-23 acres, total area 7-32 acres is owned by
Mohammad Azeem s/o Mohammad Ramzan, Mohammad Hashim s/o Mohammad Ramzan and
Raheem Bux s/o Mohammad Ramzan in equal shares. These S. Nos. are near the SSP
office Mirpur Mathelo. He produced the map of deh Wah Bakro showing the
S.No:437 and 439 in red colour, and this map is prepared by him as Exh: 46.
Another witness Mohammad Paryal s/o Mohammad Khan Witnesses No.3 was also
examined who was the Tapedar of Deh Mirpur and Deh
Jahan Khan Unar. He deposed that Deh Jahan Khan Unar is adjacent to deh Wah
Bakro from Eastern side, near survey number 437 and 439. It is fact that
towards East and North of survey No.349, deh Jahan Khan Unar is situated and so
also towards the North of survey number 437 deh Jahan Khan Unar is situated. Police
line is established in S.No:227 & 228 of deh Jahan Khan Unar, so also the
Market Committee is established in survey number 230 and 229 of deh Jahan Khan
Unar. In survey No.246 and 346 of deh Jahan Khan Unar the shops have been
established. Soofi Cotton Factory, Nisar Petrol Pump, Degree College and other
shops by road side comes in deh Jahan Khan Unar. He produced map of deh Jahan
Khan Unar as Exh:48.
31. Another
witness Hafiz Mumtaz Ali s/o Ameer Bux, Senior
Clerk in the office of DDO (R) Mirpur Mathelo was examined who produced the
attested copy of letter dt. 25-10-1994 issued by SP Ghotki at Mirpur Mathelo
regarding construction of office at police line at Exh.65-B, attested copy of
application of Muhammad Azeem at Exh.65-C regarding payment of compensation in
respect of acquire land and attested copy of payment voucher dated 15-3-1997 at
Exh.65-D. After the amended reference he was again examined on behalf of the
Land Acquisition Officer, wherein he deposed that “On 13-03-1997, the land was
acquired for the purpose of construction of SP office and police line Ghotki at
Mipur Mathelo. We before acquiring the land completed all the codal formalities
in this behalf and finally we passed the award with regard to the acquired
land. Since, the land owners did not agree to the compensation of the acquired
land, protesting that the same was in-adequate as such reference was made to
the court to resolve the issue.” During cross-examination he after
admitting stated that “It is a fact that we did not give the
benefit of section 23 subsection-II of the Land Acquisition Act to the land
owners while passing the award. It is also a fact that we did not allow the additional
charges to the tune of 15% to the land owners while passing the award. We took
over the possession of acquired on 31.05.1995, we passed the award about the
acquired land on 13.03.1997.” In response of other questions on behalf
the appellants this witness in his cross-examination while admitting stated
that “It is a fact that the acquired land is situated within the limits of
Municipal Committee Mirpur Mathelo. It is a fact that during those days when
the land was acquired there were FFC, Galla Mandi, Petrol Pump, Degree College adjacent to it. It is a fact that deh Jahan
Khan and deh Wah Bakro, are connected to each other.
It is a fact that the acquired land is situated very adjacent to deh Wah
Bakro.”
32. The witness namely Liaqat Ali s/o Allah Warrayo the Clerk
in the Taluka Municipal office M. Mathelo was examined who produced a Notification dated 21-11-1994
issued by Govt. of Sindh showing up-grading of the Town Committee M. Mathelo
to the status of Municipal Committee, Notification of Provincial Election
Authority dt. 31-10-1991 and final list of constituencies and its publication
in the Sindh Govt. Gazette dt. 28-11-1991. His
evidence was also not challenged and he was not cross-examined. The important
witness Sub-Registrar Shahabuddin Shah s/o Baddaurddin Shah was examined
on court notice to confirm the market value of the lands adjacent to the
acquired land who produced the attest copy of Registered Sale Deed bearing its
No.370 at page 152, 159, vol.32 which is regarding sale of an area of 990 sq.
feet out of S. No.346, deh Jahan Khan Unar of Taluka Mirpur Mathelo. It was
executed against the consideration of Rs.20,000/-, he
also exhibited attested copy of sale registration of plot measuring 858 sq. ft.
out of S.No.246 of deh Jahan Khan Unar, Taluka M. Mathelo and it was sold out
against the sale consideration of Rs.40,000/-, he also exhibited the attest
copy of sale deed in respect S.No.246, deh Jhan Khan Unar which was against
sale consideration of Rs.80,000/-. This witness was also not cross-examined by
the DDA for the official respondents and his evidence went unchallenged.
33. Thus based upon the above facts and the circumstances
of the case and after considering the evidence of court witness Shahabuddin
Shah the Sub-Registrar, it is established that the compensation so awarded by
the Land Acquisition officer so also the learned trial Court is in-adequate. As
a result thereof, the 1st Civil Appeals No. 4 and 5 of 2010 filed on
behalf of the Government of Sindh are dismissed being meritless and the 1st
Civil Appeals No.03 and 10 of 2010 are allowed, while relying on the evidence
of court witness Shahabuddin Shah the sub-registrar who exhibited the copies of
registered sale deed showing the rates of the adjacent area as discussed in the
above para No. 32 the appellants are entitled for the compensation of Rs.10,00,000/-
per acres with 15% compulsory charges on the enhanced compensation as required
under section 23 (2) of the Land Acquisition Act, 1894. The appellants are also
entitled for 6% interest from the date when Notification under section 4 and 6 of
the Land Acquisition Act, 1894 was issued till the final payment as allowed by
this court is made. The appellants are also entitled for the benefit of section
28-A of the benefit of Land Acquisition Act, 1894.
34. The above appeals are disposed of in the above terms.
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