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Petitioner: JAN MUHAMMAD AND armss VS Respondent: DEPUTY COMMISSIONER, KARACHI
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid Title: JAN MUHAMMAD AND armss vs DEPUTY COMMISSIONER, KARACHI Case No.: Civil Reference No, 3 of 1978 Date of Judgment:1985-11-26 Reported As: PLD 1986 Karachi 164 Result: References answered
JUDGMENT
JUDGMENT ' This Judgment will dispose off the following civil references made under section 18 of the Land Acquisition Act, 1894 :- (i) Civil Reference No, 2/77 ; (ii) Civil Reference No, 4/77 ; (iii) Civil Reference No, 44/77 ; (iv) Civil Reference No, 1/78 ; (v) Civil Reference No, 2/78 ; and (vi) Civil Reference No, 3/78. ' The lands involved in these references are situated in Deb Pipri ; Deh Bakran ; Deh Joreji ; Deb Koterire and Deh Sanhiro, Taluka and District Karachi. After issuance of acquisition notifications under the provisions of the Land Acquisition Act, 1894, the owners, whose lands were acquired, filed their claims and by four different awards given by the Deputy Collector and Land Acquisition Officer, Karachi, the claims of the owaers were disposed off. The owners were not satisfied with the awards and accordingly they made applications under section 18 of the Land Acquisition Act, which were forwarded by the Deputy Commissioner (East) for disposal by this Court. The four awards of the Land Acquisition Officer, which have been challenged by the owners on the ground that the compensation awarded for the acquisition of their lands is very low, are as follows :- (a) Award, dated 7-9-1974 : ' Notification under section 4 of the Land Aquisition Act, 1894, for acquisition of the lands involved in this award is dated 27-6-1973. These lands are situated in Deh Pipri and Deh Bakran and these were acquired for the establishment of the Steel Mill Plant. Under the law compensation for acquisition of
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these lands was required to be determined with reference to the market value of the lands on 27- 6-1973, the date of the notification under section 4 of the Act. The owners, whose lands were acquired, claimed compensation at different rates ranging from Rs, 6,000 per Acre to Rs, 20,000 per Acre and Rs, 10 to Rs, 15 per square yard. Steel Mill authorities, on whose behalf the lands had been acquired, had suggested the rate as Rs, 1,000 per Acre. According to the award, dated 7-9-1974, the evidence/material before the Land Acquisition Officer was as follows :- (i) Entries in the records showing sales of Survey Nos. 77, 106 and 107 Deh Pipri at the rate of Rs, 1,000 per Acre in the year 1968. (ii) Entries in the records showing sales of Survey Nos. 16 to 19, 21 to 25, 54 and 55 comprising 118-39 Acres in Deli Bakran in August, 1972 at the rate of Rs, 1,000 per Acre. (iii) Board of Revenue Memorandum, dated 10-12-1973 showing sale of Government land by the Government of Sind to the Steel Mill Corporation at the rate of Rs, 2 per square yard plus 10 per cent surcharge. According to the award, dated 7-9-1974, the aforesaid Government lands sold to Steel Mill Corporation were situated in the same Dehs and were required to be utilized for the same project i. e. Steel Mill project. ' The Land Acquisition Officer did not accept the figure of Rs, 1,000 per Acre, which according to him, was on the very low side. He also did not accept the rate of Rs, 2 per square yard plus 10 per cent surcharge, which was the rate charged by the Government of Sind for sale of its land in December, 1973 to the Steel Mill on the ground that this sale of Government land was of a later period having taken place in December, 1973, whereas the market value to be determined was to be on the date of notification i. e. 27-6-1973. According to the Land Acquisition Officer, the rate charged by the Government of Sind in December, 1973. Therefore, did not represent the market value obtaining on the crucial date i. e. 27-6-1973. After referring to the aforesaid pieces of evidence/material on record the Land Acquisition Officer awarded a flat rate of Rs, 5,000 per Acre and his decision is contained in para. 9 of the award, dated 7-9-1974, which is reproduced hereinbelow "Now taking into consideration the rates of private sales as quoted above and also giving due regard to the rate charged by the Government for State land located in the vicinity of the same Dehs, I award fiat rate of Rs, 5,000 (Rupees five thousand only) per acre for all the lands acquired from Deh Pipri and Deh Bakran. ' In addition I award 25% statutory allowance as admissible under the Land Acquisition Act (I) of 1894. No interest is allowed as the possession of land has not been taken as yet." (b) Award, dated 6-8-1975 : ' This award relates to lands acquired under two notifications issued under section 4 of tie Land Acquisition Act for the purpose of construction of the Steel Mill Plant. One notification is dated 3-7- 1974 for acquiring certain private lands in Deh Bakran and Deli Pipri and the other notification is dated 26-4-1975 and it relates to Survey No, 241 of Deh Joreji, which was acquired for Steel Mill Township. ' In respect of the lands acquired in Dehs Bakran and Pipri for the purpose of the construction of the Steel Mill Plant, the Land Acquisition Officer relied upon the earlier award, dated 7-9-1974, whereby he had fixed flat rate of Rs, 5,000 per Acre for the lands acquired from De is Bakran and Pipri for the same project i. e. Steel Mill Plant and after observing that no sales fetching higher rates in the locality had taken place after 27-6-1973, which was the date of notification involved in the award, dated 7-9-1974, the Land Acquisition Officer awarded the same flat rate of Rs, 5,000 per acre plus 25 per cent statutory allowance. ' As regards the Survey No, 241 of Deh Joreji, which had been acquired for Steel Mill Township, pursuant to notification, dated 26-4.1974 issued under sectior 4, the Land Acquisition Officer referred to another award (which will be referred later on in this judgment), which had been passed relating to acquisition of land in Deh Joreji - for the same project of Steel Mill Colony, in
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which the rate of Rs, 6,000 per acre was given as the market value of t e lands obtaining on 22-3- 1975. The Land Acquisition Officer awarded the same rate of Rs, 6,000 plus 25 per cent statutory allowance in respect of Survey No, 241 of Dehloreji. (c) Award, dated 6-12-1974 : ' The lands in this award are located in Deh Joreji ; Deh Koteriro ; and Deh Sanhiro and notification in respect of the acquired lands in these Dehs is dated 10-6-1974. The land was acquired for the construction of the Steel Mill Township, Colony. The owners whose lands were acquired, claimed compensation at different rates e.g. Rs, 50,000 per Acre and Rs, 20 to Rs, 30 per square yard. The Land Acquisition Officer considered all the claims made by the owners to he exorbitant. 1 he Steel Mill authorities, on whose behalf the lands had been acquired, suggested the rate of Rs, 1,000 per acre, which was considered very low by the Land Acquisition Officer. The Land Acquisition Officer referred to the following pieces of evidence/ material on record :- (i) Reference was made to the award (perhaps award, dated 7-9-1974 and/or award dated 6-8- 1975 referred to earlier) where compensation was awarded at the rate of Rs, 5,000 per acre for private lands acquired from Dehs Pipri and Bakran for the establishment of the Steel Mill Plant. (ii) Taluka Office record showing sale 0-4-0 share in Survey No, 36 of Deh Joreji at the rate of Rs, 5,500 per acre as per entry dated 30-7-1973 in the record-of-rights. (iii) Memorandum, dated 27-7-1974 of the Board of Revenue Sind, which shows that the lands had been sold by the Government of Sind to the Steel Mill Corporation. The rate charged/demanded by the Government of Sind for the 'sale of Government land situated in the same Dehs was Rs, 3.30 per square yard. The Provincial Government had also sold the land to the Steel Mill for the same purpose i. e. Steel Mill Township/Colony. It is then observed in the award, dated 6-12-1974 that the Steel Mill Corporation had pointed out that the rate of Government land fixed by Sind Government had been reduced by the Federal Government into a lump sum of Rs, 5 crores for the entire State land which worked out to Rs, 3,086 per acre. The Land Acquistion Officer did not accept this figure of Rs, 3,086 per acre, as acccording to him, this did not represent the market value on the crucial date i. e. 10-6-1974. He then gave a brief description about the location of the lands, which were acquired, according to which description, the lands are located as mentioned in para. 9 of the award, dated 6-12-1974, which reads as follows :- ' I now give brief description about the location of each of the above Dehs. Deh Joreji is situated on National Highway. There are two Railway Stations namely Pipri and Chaghar in it. Besides, Sui Gas pipelines and K. D. A's. Two water pipelines are passing through it. Apart from this, the Telephone and Telegraph Department and Radio Pakistan have constructed their Wireless Transmitting Stations there. There are foodgrain godowns constructed by the Food Department. The electric and telephone lines are also passing there this Deh. Furthermore, it is nearer to Karachi City in comparison to other Dehs. On the other hand, Dehs Sanhiro and Koteriro are situated in a rear side at a distance of 2 miles from the road. Deh Joreji commands better importance than the other Dehs Sanhiro and Koteriro, which are, however, quite contiguous to Deh Joreji." ' In paras. 10 and 11 of his award, dated 6-12-1974, the Land Acquisition Officer fixed the rate of compensation and gave his reasoning for the same and these two paragraphs are reproduced below :- "10. Now taking into consideration all the above factors, I award the rate of Rs, 6,000 (Rupees six thousand) per acre for the land acquired from Deh Joreji. As regards the lands acquired from Dehs Koteriro and Sanhiro, which are of lesser importance as discussed earlier, I award the rate of Rs, 5,000 (Rupees five thousand only) per acre. 11. In addittion, I award 25% statutory allowance as admissible under the Land Acquisition Act. No interest is allowed as the possession of the land has not yet been taken." (d) Award, dated 31-5-1975 :
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' The lands involved here are all located in Deh Joreji and these were acquired for the establishment of Steel Mill Township/Colony and notification under section 4 of the Land Acquisition Act was issued on 22-3-1975. The owners, whose lands were acquired, made claims seeklng compensation at the rates ranging from Rs, 10 to Rs, 60 per square yard, which were considered to be exorbitant by the Land Acquisition Officer. He also referred to the suggested rate of Rs, 1,000 made by Steel Mill authorities but the same was considered by the Land Acquisition Officer to be very low. The award, dated 31-5-1975 refers to the following pieces of evidence/ material :- (i) Reference was made to the earlier award whereby the compensation at the rate of Rs, 6,000 per acre was awarded for the lands acquired from Deb Joreji for the same purpose i. e. Establishment of the Steel Mill Township/Colony. (ii) Sale of 0-4-0 share in Survey No, 36 of Deh Joreji ride entry dated 30-7-1973 in the records-of- rights at the Rate of Rs, 5,5C0 per acre. ' The Land Acquisition Officer then gave a brief description about the location of the land and then in para. 9 he fixed the compensation and also gave his reasoning for the same in the following terms :- "9, Now taking into consideration all the above factors and precedent relating to the land located in the same Deh, I award the rate of Rs, 6,000 (Rupees six thousand only) per acre for the land acquired from Deh Joreji. ........... " ' In addition, he awarded 95 per cent statutory allowance. 2. In this Court evidence was led on behalf of the claimants and the examined five witnesses. No evidence was led either by the Deputy Commissioner or by the Steel Mill Corporation, on whose behalf entire lands, being the subject-matter of these references, had been acquired by the Government. P. W. 1, Ali Muhammad (Exh. 3) gave evidence that his land, which was located in Deh Joreji, was acquired on 10.6-1974. ID his deposition he emphasized important position of his land, which was acquired by the Government. He produced certified copy of a village Form VII showing sale of one Survey number in February, 1980 measuring about 181 acres for a total consideration of Rs, 21,00,000. He also produced another extract as Exh. 3/2; which shows the sale of Survey No, 135 in Deh Joreji on 28-9-1978 at about Rs, 40.000 per Acre. He also produced certified copy of a sale- deed, dated 26-11-1979 as Exh. 3/3 showing sale of certain survey numbers in Deli Joreji at the rate of Rs, 30,000 per Acre. He stated that the market value in 1974 of his land, which had been acquired by the Government, would be at least Rs, 1,50,000 per Acre. ' P. W. 2, Hussain Tejani (Exh. 4) is the Executive Engineer Designs, K. D. A. He gave evidence about the lands located in K. D. A. Scheme No, 33. According to him, the price of land in Shah Latif Town and Metroville-III Schemes was fixed by the Government at Rs, 10 per square yard and in Gulistan- e-Jauhar it was at Rs, 20 per square yard and these prices were fixed after 1979. He corrected himself after looking at the record stating that the price of Rs, 10 per square yard for Shah Latif Town was fixed in November, 1981. In his cross-examination by the learned counsel for Pakistan Steel Mill Corporation Limited, the Executive Engineer of K. D. A., stated that prior to 1964 or so, the Government i. e. Board of Revenue were charging Re. 1 per square yard from K. D. A. For K. D. A.. Schemes as price of the land but thereafter, the Board of Revenue wanted the price to be enhanced and t at he has already given the cost of the land as Rs, 10 per square yard that had been fixed by the Board of Revenue in respect of Shah Latif Town and Metroville-III. ' P. W. 3, Syed Mithan (Exh. 5) is the supervision Tapedar in the office of Mukhtiarkar East, Karachi. He had brought the registers of Deh Joreji and adjoining Dehs for the years 1971-75. He stated that the highest price, according to the sales recorded in his office in respect of the lands located in Deh Joreji, was Rs, 5.500 per Acre and this was in respect of lands sold on 3-7-1973 located in Survey No,
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36 in Deh Joreji comprising an area of 7f Acres. He also gave the location of Deh Joreji in his evidence. ' P. W. 4, Ghulam Hussain (Exh. 6) stated that he was in the service of Home Land Development Company on Abdullah Haroon Road, Karachi. He stated that the share of one Ali Muhammad in Survey Nos. 8, 9 and 10 of Deh Joreji was purchased by his company and agreement of sale was executed on 8-11-1979. According to the witness, land had been purchased by his company at Rs, 1,50 000 per Acre and that his company was selling residential plots from the lands purchased at the rate of Rs, 200 per square yard. From his cross-examination it came out that one of the partners of his company is the brothel of Ali Muhammad, from whom his company had purchased the land. He stated that no work of development had yet been started on the lands purchased by his company, on which they had started a project known as "Wali Town". He also stated that no one had built any house in the area. He admitted that the prices of the lands in the area had arisen on account of setting up of Pakistan Steel Mill. ' The last witness on behalf of the claimants is P. W. 5, Nazimuddin (Exh. 7). His father's lands had been a quired by the Government, subject-matter of the present references. He produced as Exh. 7/1 a certified copy of the sale-deed, dated 25-10-1978 in respect of the lands sold by his deceased brother Ali Baksh. The land, subject-matter of Exh. 7/1 is located in Deh Joreji and according to Exhibit 7(1 the land was sold at the rate of about Rs, 50,000 per Acre. He further deposed that he had also sold his land in. Deh Joreji in 1978 and he produced as Exh. 7/2 a copy of agreement of sale, dated 22-4-1980. His lands, which were sold in 1978, were also located in Deh Joreji and these were sold at the rate of Rs, 30,000 per Acre. According to this witness, the lands, which he had sold to purchaser Muhammad Ramzan at the rate of Rs, 30,000 per Acre were located in hilly area and that the land was not under cultivation and that is why it was sold at a lesser price. According to him, the land which was acquired by the Government, is near the National Highway and it was under cultivation and its market value in 1974 would be Rs, 1,00.000 per Acre. This witness gave the location of the land acquired by the Government. 3. I have heard the arguments of the learned counsel for the claimants. No argument was addressed by Mr. Shaikh A. Sattar, Additional Advocate-General for the Deputy Commissioner apparently for the reason that the lands had been acquired for Pakistan Steel Mill Corporation, who have been represented throughout by Mr. Kamal Mansoor Alam, Advocate. I have also heard the arguments of Mr. Kamal Mansoor Alam. 4. Learned counsel for the claimants emphasized the important location of the lands that had been acquired and it was argued that the compensation was awarded by the Land Acquisition Officer was patently inadequate. It was also contended that the rates fixed by the Land Acquisition Officer on which be based his awards were not supported by evidence. It was submitted that the potentialities of the lands and the use to which the lands could be put were not taken into consideration by the Land Acquisition Officer. Reliance was placed on the sale-deeds, agreements and extracts from the record of rights produced by the witnesses of the claimants and also on their oral testimony. Reliance was placed on the evidence given by P.W. 2, Executive Engineer Designs, K. D. A. Reference was made to several reported judgments mainly on the principle that potentialities of the acquired lands and the use to which the acquired lands could be put are also taken into consideration while assessing the market value on the date of the relevant notification. Reliance was also placed on reported judgments for the proposition that the market value is to be assessed on the basis of the price a willing purchaser was ready to pay to a willing vendor. The following case-law was cited by the learned counsel for the claimant :- (a) Atmaram v. Collector, Nagpur AIR 1924 P C 92. (b) Land Acquisition Collector v. Abdul Qayyum Malik 1980 SCMR 92. (c) Pakistan v. Muhammad Aslam 1978 SCMR 5.
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(d) Abid Hussain v. Collector of Karachi 1980 SCMR 795. (e) Government v. Century Spinning and Manufacturing Co. AIR 1942 Born 105. ( f ) Revenue Divisional Officer v. Varadachari AIR 1944 Mad. 271. (g) Deputy Commissioner v. Umar PLD 1976 Kar. 614. (h) Habibullah Khan v. Collector, Quetta PLD 1984 Quetta 11. (1) Ramchan v. Governor-General-in- Council PLD 1957 Kar. 424. ( j) Collector of Karachi v. Rustam F. Cowasji PLD' 1961 Kar. 639. (k) Land Acquisition Collector v. Wajid Ali. Khan Burki PLD 1960 Lah. 469. (1) Pakistan v. Rehm Dad 1980 CLC 574. (m) Banaras Khan v. Chairman WAPDA PLD 1982 SC 100. (n) Velayudam Chettiar v. Special Tehsildar, Land Acquisition (1959) 1 M L J. (o) Hyderabad Development Authority v. Karam Khan Shoro 1985 SCMR 45. ' Mr. Kamal Mansoor Alam, learned counsel for Pakistan Steel Mill Corporation, made the following submissions in support of his contention that no case has been made out for enhancement of compensation awarded by the Land Acquisition Officer in all these cases :- (0 The position of the claimant is of a plaintiff in a suit and unless there is some evidence, on the basis of which it can be established that the compensation awarded by the Land Acquisition Officer is low, the award cannot be set aside. According to the learned counsel in these cases the burden was on the claimants in this regard, which has not been discharged. It was submitted that no evidence was adduced by the claimants, on the basis of which this Court may reach the conclusion that the market value of the lands on the dates of the relevant notifications issued was higher and if so, what was the exact market value. (ii)The awards are based on market value and as such they are not liable to be interfered with. (iii) In this case, as noted earlier, there are two memorandum of the Board of Revenue, which show the price fixed/paid to the Government of Sind for the lands sold by the Provincial Government to the Steel Mill authorities. It was contended by the learned counsel for Pakistan Steel Mill Corporation that the fixation of the price of the land by the Government does not reflect the market value of the lands. ' Mr. Kamal Mansoor Alam took me through the entire evidence adduced on behalf of the claimants including the documents produced by them. It was argued that the documentary evidence adduced on behalf of the claimants related to sales made in 1978 and thereafter and no reliance be placed on the rates mentioned in these documents for determining the market value of the lands in 1973, 74 and 75. Learned counsel also referred to the Explanation added to section 23 of the Land Acquisition Act, 1894 by Land Acquisition (West Pakistan Amendment) Ordinance, 1969. Section 16 of the amending Ordinance is reproduced hereinbelow "16. Amendment of section 23 of Act I of 1894-In section 23 of the said Act,- (a) In subsection (I), under clause first, the following explanation shall be added, namely :- "Explanation.-For the purposes of determining the market value, the Court shall into account transfers of land similarly situated and in similar use. The potential value of the land to be acquired if put to a different use shall only be taken into consideration if it is proved that land similarly situated and previously in similar use as, before the date of the notification under subsection (1) of section 4, been transferred with a view to being put to the use relied upon as affecting the potential value of the land to be acquired :
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' Provided that- (i) If the market value has been increased in consequence of the land being put to a the which is unlawful or contrary to public policy, that use shall be dlsregarded and the market value shall be deemed to be the market value of the land if it were put to ordinary use ; and (ii) If the market value of any building has been increased in consequence of the building being so overcrowded as to be dangerous to the health of the inmates, such over-crowding shall be disregarded and the market value shall be deemed to be the market value of the building if occupied by such number of persons only as can be accommodated in it without risk of danger to health from over-crowding." ; and (b) For subsection (2), the 'following subsection shall be substituted, namely :- "(2) In addition to the market value of the land as above provided, the Court shall award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition, if the acquisition has been made for a public purpose and a sum of twenty-five per centum on such maket value if acquisition has been made for a Company." ' Mr. Kamal Mansoor Alain also relied upon the following judgments :- (i)Gajapatiraju v. Revenue Divisional Officer AIR 1939 P C 98. (ii) Deputy Commissioner v. Amir Zeman PLD 1985 Kar. 3S5. 5. I may refer hereto my judgment in the case of Deputy Commissioner v. Amir Zaman (1), which was cited by the learned counsel for the parties during the course of their arguments. In the judgment I had considered the relevant provisions of the Land Acquisition Act, 1894 and the case- law on the subject. Para. 4 of the judgment reported in the case of Deputy Commissioner v. Amir Zaman is reprudoced heieinlrelow "4. On an analysis of the case-law, certain general/principles appear to be well-settled about the scope of proceedings and jurisdiction of Courts under section 18 of the Land Act, 1895 and the basis for determination of market value under sections 23 and 24 of the Act and these are enunciated hereto :- (a) In a reference under section 18 of the Land Acquisition Act, .1894, the Court is not empowered to go behind the reference to examine the legality of acquisition proceedings. (b) The award of the Collector or Land Acquisition Office can be challenged only at the instance of a 'person interested'. (c) Tenant of a property acquired is a 'person interested' and a C such he can competently maintain a claim for compensation for hi right/interest in the property. (1) PLD 1985 Kar. 385 (d) The Court has no power to remand the case back to the Collector'D for fresh decision. (e) Status of a property seeking reference objecting to the award of the Collector or Laud Acquisition Officer is that of a plaintiff. He has to establish before the Court that the award is…
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