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Petitioner: GOVERNMENT OF PAKISTAN, MINISTRY OF DEFENCE, MILITARY LANDS AND CANTONMENT DEVELOPMENT VS Respondent: ABDULLAH SHAH
1988 C L C 1230
1988 C L C 1230
[Karachi]
Before Saeeduzzaman Siddiqui, J
GOVERNMENT OF PAKISTAN MINISTRY OF DEFENCE, MILITARY LANDS AND CANTONMENT DEVELOPMENT through Military Estate Officer‑‑Appellant
versus
ABDULLAH SHAH and 24 others‑‑Respondents
Miscellaneous Appeals Nos. 19 and 20 of 1981 and Miscellaneous Appeals Nos. 61 and 62 of 1987, decided on 20th September, 1987.
(a) Land Acquisition Act (I of 1894)‑‑
‑‑‑S. 23‑‑Defence of Pakistan Ordinance (XXX of 1971), S.18‑ Compulsory acquisition of land for public purpose‑‑Determination of compensation by arbitrator‑‑Deh map produced before Arbitrator showing that most of survey numbers in dispute stated to have been acquired only partially fell within the limits of area demarcated thereon as having been acquired in acquisition proceedings‑‑Arbitrator failing to give any finding with regard to contention of claimants that survey numbers shown in notification as partially acquired were in fact totally in possession of acquiring authority‑‑Such assertion of claimants found to be well supported by evidence on record‑‑Compensation determined under S.18 of Defence of Pakistan Ordinance was payable both in respect of land compulsorily acquired and that taken possession of under the Ordinance‑‑Survey numbers in dispute being fully in possession of acquiring authority and same also falling within limits of acquired land, the claimants, held, were entitled to compensation for the excess area not covered by notification of acquisition.
(b) Land Acquisition Act (I of 1894)‑‑
‑‑‑S. 23‑‑Defence of Pakistan Ordinance (XXX of 1971), S.18‑ Acquisition of easement rights in land‑‑Nothing in evidence produced by acquiring authority before arbitrator available to show that the land in respect of which it was claimed that only easement rights were acquired was not in possession of acquiring authority or that the owner continued to enjoy possession and benefit of said land in spite of acquisition of easement rights by Government‑‑Government could not acquire easement rights in land without acquiring the land itself‑‑Acquisition proceedings contemplated under S.18 of Defence of Pakistan Ordinance could either be of a permanent or a temporary nature and no other category of acquisition was contemplated under the law‑‑Owner of land, held, was entitled to full compensation in respect of land shown to have been acquired only to the extent of his easement rights.
(c) Land Acquisition Act (I of 1894)‑‑
‑‑‑S. 23‑‑Defence of Pakistan Ordinance (XXX of 1971), S.18‑ Compulsory acquisition of land for public purposes‑‑Determination of compensation‑‑Market value of land‑‑Witnesses produced by claimants to establish market value of land stating that the value of the land was between Rs.1,500 and Rs.5,000 per acre depending upon quality of the land‑‑Assistant Commissioner/ Revenue Officer concerned in his evidence before Arbitrator stating that prevalent market value of land in area was between Rs.2,000 and Rs.3,000 per acre and that during the years 1972 to 1974 the approximate value of land in area was between Rs.500 and Rs.2,000 per acre‑‑Arbitrator, in such circumstances, held, neither acted in an arbitrary manner nor against evidence on record in fixing compensation of land at the rate of Rs.2,000 per acre in 1972; Rs.2,500 per acre in 1974 and Rs.3,000 per acre in 1977‑‑Submission of counsel for Government that compensation should have been fixed by Arbitrator according to value disclosed in sale‑deed produced by Sub‑Registrar of area was without force and Arbitrator had for very cogent reasons refused to rely on the same as a guideline to arrive at fair market value of the land‑‑No reason shown to interfere with the market value of land fixed by Arbitrator for awarding compensation to claimants.
P L D 1977 Kar. 203cited.
(d) Land Acquisition Act (I of 1894)‑‑
‑‑‑S. 23‑‑Defence of Pakistan Ordinance (XXX of 1971), S.18‑ Compulsory acquisition of land‑‑Compensation for standing crop on acquired land‑‑No evidence on record to show that at time of taking over possession of the land in dispute there existed any cultivation on the acquired survey numbers‑‑.Arbitrator, held, rightly refused to award further compensation for the standing crop on the required land.
(e) Land Acquisition Act (I of 1894)‑‑
‑‑‑S. 23‑‑Defence of Pakistan Ordinance (XXX of 1971), S.18‑ Compulsory acquisition of land‑‑Compensation for severance of other land from acquired land‑‑Reasoning given by arbitrator for disallowing the claim for severance of other land of claimants found to be very logical and convincing and claimants unable to point out any evidence on record to establish any direct and adverse effect on their remaining land‑‑Order of Arbitrator in that behalf not interfered with.
(f) Land Acquisition Act (I of 1894)‑‑
‑‑‑S. 23‑‑Defence of Pakistan Ordinance (XXX of 1971), S.18‑ Compulsory acquisition of land‑‑Compensation for injurious affection to adjoining land‑‑Appellants claiming that on account of construction of airstrip on acquired land, their remaining land in area had been injuriously affected as water supply had been blocked and had been prevented from carrying on cultivation of rice and sugarcane on area adjoining the airstrip‑‑Bungalow of appellants in Deh in which acquired land was located was on one side of airstrip while majority of their land in same Deh was on the other side of airstrip to which no direct access was now available to them‑‑Oral evidence substantially establishing that on account of construction of airstrip on the acquired land, appellants could not now cultivate crops like sugarcane, paddy and bananas on a substantial area of their land in and around the airstrip‑‑Arbitrator, in such circumstances, held, should have considered award of damages on account of injurious affection of other land of appellant in adjoining area instead of only awarding damages for unacquired portion of their survey numbers which were partially acquired.
(g) Land Acquisition Act (I of 1894)‑‑
‑‑‑S. 23‑‑Defence of Pakistan Ordinance (XXX of 1971), S.18‑ Compulsory acquisition of land‑‑Compensation for sudden dispossession‑‑Appellants not having established that there were any standing crops on acquired land at time of taking over possession, no compensation for sudden dispossession, held, could be granted to them.
(h) Defence of Pakistan Ordinance (XXX of 1971)‑‑
‑‑‑S. 18(1)(f)‑‑Civil Procedure Code (V of 1908), S.96‑‑Appeal‑‑ Remand of case‑‑Suggestion that cases might be remanded back to Arbitrator for reconsideration of appellants' claim not accepted, firstly for the reason that Arbitrator having retired from service was not available and secondly scope of appeals was very wide being in nature of first appeals‑‑Evidence on all points raised being available, Court preferred to decide the said issues itself instead of referring case back to Arbitrator.
Imam Ali Kazi for Appellant (in Miscellaneous Application Nos. 61 and 62 of 1979).
Dastgir Kazi for Appellant (in Criminal Applications Nos. 19 and 20 of 1981).
Dastgir Ghazi and Abdul Rahim Kazi for Respondents.
Dates of hearing: 7th December, 1986: 13th, 21st and 28th January, 1987.
JUDGMENT
This order will govern the disposal of above‑noted four Miscellaneous Appeals which are filed against two separate Awards of Arbitrator made under Section 18 of the Defence of Pakistan Ordinance, 1971, on 430th June, 1979. These Awards relate to three different acquisition proceedings of the years 1972, 1974 and 1977. The first award of the Arbitrator is in respect of acquisition proceedings of the years 1972 and 1974 while the 2nd Award relates to the acquisition proceeding of the year 1977. For the sake of convenience I will hereinafter refer the acquisition proceedings of 1972 and 1974 as "the first acquisition proceeding" and the Award relating thereto as the "first award" and the acquisition proceeding of the year 1977 and the award relating thereto as the "second acquisition proceeding" and the "second (ward" respectively. The first award is the subject matter of 1st Appeal No.62 of 1979 and M.A. 19/81 while the second award is subject‑matter of 1st Appeal No.61/79 and M.A. No.20/81, M.A. No.61 and 62/79 are filed by private persons who were claimants before the learned Arbitrator while M.A. Nos.19 and 20 are preferred by the Government challenging the awards of the Arbitrator. To avoid any confusion in this order whenever necessary I will refer the appellants in Appeals No.61/79 and 62/79 as the claimants appellants while the appellants in M.A. 19 and 20 of 1981 will be referred as the appellant Government. Appeal No.61/79 was filed by Kevalram Dayaram Shahani, his son Prem Kevalram Shahani and his daughter‑in- law Shirimati Rajkumari Prem Shahani but during the pendency of this appeal Kevalram Dayaram Shahani died on 16‑1‑1986 and his two sons Prem Kevalram Shahani and Narayan Keval Shahani applied for substitution of their names. Similarly in M.A. No.20/81 a similar application is filed by the above‑named two sons of Kevalram Dayaram Shahani for substitution of their names as respondents in place of deceased Kevalram Dayaram Shahani. Both these applications are granted as there is no opposition to them. Appeal No.62 of 1979 has been filed by Prem Kevalram Shahani alone. In appeals No.61 and 62/79 several claims relating to severance, injurious affection, sudden dispossession, crop compensation, inadequacy of interest and rate of compensation are made by the claimants/ appellants in respect of their acquired as well as other lands, situated in Deh Chanri, Kohar and Lundki. It is however, admitted that the lands belonging to claimants/ appellants acquired in the above acquisition proceedings were situated in Deh Chanri only. It is also not denied that none of the lands belonging to Prem Kevalram Shahani who is shown as appellant No.3 in Appeal No.61/79 were acquired in the 2nd acquisition proceedings. It is, however, contended on behalf of Prem Kevalram Shahani that he is entitled to maintain Appeal No.61 of 1969 on account of severance and injurious affection of his other land which he claimed was a compact unit alongwith the land of Appeals Nos.l and 2 in Appeal No.161 of 1979. The subject‑matter of Appeal No.62 of 1979 is the land which is exclusively owned by Prem Kevalram Shahani in Deh Chanri. The total area of land owned by claimants/ appellants in Deh Chanri comes to 1180.09 acres, out of which only an area of 253.26 acres was acquired by the Government in the 1st and 2nd acquisition proceedings (including 38.24 acres shown as easementary right). The break up of the land acquired from claimants appellants in the years 1972, 1974 and 1977 respectively are as follows:‑.
Name Land acquired Land acquired Land acquired in 1972 in 1974 in 1977 Kevalram Dayaram Nil Nil 20‑30 Acres Shahani Rajkumari Prem Kevalram Nil Nil 126.03 Acres Shahani Prem Kevalram 9.20 acres 58.29 acres Shahni Plus 38.24 " Nil
(described as easementary right in Award)
This is a controversy with regard to the actual area acquired by the Government in the 2nd acquisition proceedings. According to appellants in Appeal No.61/79 the actual area acquired from the holdings of appellants 1 and 2 was 20‑30 and 126.03 acres respectively while according to Award of learned Arbitrators they have been granted compensation in respect of 11‑13 and 94.19 acres only respectively. In Appeals Nos.19 and 20 of 1981 filed by the Government of Pakistan, challenging the above awards, the rate of compensation awarded by the learned Arbitrator is disputed and it is urged that the compensation awarded is not in accordance with the real market value of the land and against the evidence on record.
Before considering various other contentions raised in these appeals I would first like to deal with the contentions of claimants/ appellants that the area actually acquired from them was more than that for which the learned Arbitrator had awarded them compensation and that the compensation awarded to one of them on the basis of acquisition of easement right was wholly unjustified as that land was totally acquired and in any case there can be no acquisition of alleged easement right without acquiring the land itself. According to claimants/ appellants the land acquired from Rajkumari Prem Keval in the second acquisition proceedings was actually 126.03 acres while she has been awarded compensation by the learned Arbitrator only in respect of 49.19 acres. It is accordingly contended that she is entitled to payment of compensation for an additional area of 31.24 acres which the learned Arbitrator omitted to award. Similarly it is contended that the deceased Kevalram Dayaram Shahani was awarded compensation by the learned Arbitrator for only 11‑13 acres of land while the actual area acquired from his holding was 20‑30 acres. It is, therefore, urged, that the deceased should also be paid compensation for the additional area of 9.17 acres which the learned Arbitrator failed to award. The survey numbers acquired from the holdings of claimants/ appellants are shown in Annexure 'A' to the award. It is quite clear from this documents that out of 29 survey numbers acquired from the holding of Shirimati Rajkumari 21 survey numbers were acquired in full while in respect of the remaining a survey numbers there was only partial acquisition of the land. Similarly out of 6 survey numbers acquired from the holding of late Kevalram Dayaram Shahani only 3 survey numbers were acquired in full while the remaining 3 survey numbers were partially acquired. The details of survey numbers which were partially acquired from the holdings of claimants appellants are as under:‑
Name of Survey No. Total AreaArea Acquired Owner Shirimati Rajkumari 244 4.39 0.10 " 246 3.06 0.04 " 114 4.06 0.02 " 194 2.09 0 .15 " 195 4.07 2.00 " 205 2.18 0.18 " 148 9.35 0.05 " 215 5.10 4.01 Kevalram 220 6.01 0.01 Dayaram 229 2.08 1.08 Shahani 230 3.19 0.34 There is on record an application dated 8‑1‑1979 filed by the claimants/ appellants before the learned Arbitrator alleging that the acquiring authority is avoiding to obtain from the Director of Survey, Settlement and Land Record, the appropriate "Ghatwadh' forms of the acquired land and as such they may be directed to obtain the same. There is also another application on record by the claimants/ appellants requesting the learned Arbitrator to direct the acquiring authority to supply them a plan of the area acquired so that they may know exactly the boundaries of acquired land. Notices of both these applications were given to MEO but it appears that no reply on behalf of the acquiring authority to these applications was filed. However, witness Abdul Majid, DMEO who was examined in the case by the acquiring authority, in his evidence before the learned Arbitrator produced his parawise comments in the case in which in paragraphs 15 (a) to (c) it was stated that Mukhtiarkar, Badin, may be summoned to produce the relevant Deh map showing thereon the extent of the area acquired and may also be asked to produce copies of Ghatwadh forms prepared by them. In cross‑examination this witness admitted that he received a letter in June, 1977 from the District Magistrate enquiring as to how much land was handed over to MEO. He also stated that the measurement of land was taken by the Revenue authorities in presence of Garrison Engineer but he was not present at the time of recording of measurement of land. The attorney of claimants appellants Prem Kevalram Shahani in his evidence before the arbitrator specifically stated that the survey numbers referred to above though shown in the notification having been acquired partially were in fact fully acquired and were in possession of the acquiring authority. He further claimed that none of the appellants were allowed to enter upon the above survey numbers and that till today no measurement of the land had been taken and the excess area continued to be occupied by the acquiring authority. Although this witness was cross‑examined by the acquiring authority but his statement with regard to the total acquisition of the above survey numbers and its occupation by the acquiring authority was not at all challenged. The claimants appellants also summoned and examined in the case before the Arbitrator another witness Noor Muhammad, Inspector of Revenue and City Survey in the Office of Settlement Surveys and Land Record. This witness in his evidence before the learned Arbitrator stated that after 1972 his department did not receive any request for measurement of the land acquired in Deh Chandri, Bagarki and Lundki except one letter dated 6‑12‑1976 which he had received from the Mukhtiarkar; but with that letter neither any statement showing the land sought to be measured was attached, nor any mention of measurement charges to be paid to his department was made. He further stated that similar letter was also received by his department from MEO pertaining to the acquisition of land in the years 1972, 1974 and 1977 but he could not record the measurement as the area was converted into block survey. He also stated that he wrote to the Mukhtiarkar and the MEO Badin that in case they are interested in the measurement of land they should supply the land plan, land statement and charges for measurement as per rules and that after receiving these details he will prepare form 'B' as well as the Ghatwadh forms. This witness in his evidence gave full details of the procedure followed by them for the measurement of the land and preparation of 'Ghatwadh' form. No question in cross‑examination was put to this witness on behalf of the MEO (acquiring authority). Apart from it, on the file of second acquisition proceedings a combined map of all Dehs was produced before the learned Arbitrator as Ex.17 in which A the areas acquired in the acquisition proceedings of 1972, 1974 and 1977 are shown. From perusal of this Map it appears that most of the survey numbers referred to above which were shown to have been acquired only partially, fell within the limits of area demarcated on this Map as having been acquired in the above acquisition proceedings. The contention of the claimants /appellants that the survey numbers shown in the notification as partially acquired were in fact totally in possession of the acquiring authority, was specifically raised before the learned Arbitrator but he failed to give any finding in this regard. From the evidence on record in the case, the assertion made by the claimants/ appellants before the learned Arbitrator that the acquiring authority was occupying the entire area of the above survey numbers which were shown to have been acquired partially is well supported. The evidence on record also shows that still today neither the 'Ghatwadh' form of these survey numbers has been prepared nor any measurement has been recorded by any competent authority to ascertain the exact area acquired. No doubt in the notification issued for acquisition of Land, the above survey numbers are shown to have been acquired partially only but if the acquiring authority are in occupation of entire survey numbers they are liable to pay compensation for the same. The payment of compensation for acquired land is governed under section 18 of the Defence of Pakistan Ordinance, 1971 which reads as follows:‑
"18. Compensation to be aid in accordance with certain principles or compulsory acquisition o immovable property, etc.‑‑ (1) Where under Section 19 or by or under any rule made under this Ordinance any immovable property, or a commercial or industrial undertaking or any interest in such undertaking is compulsorily acquired or taken possession of for a public purpose, there shall be paid compensation, the amount of which shall be determined in the manner, and in accordance with the principles, hereinafter set out, that is to say.
(a) where the amount of compensation can be fixed by agreement, it shall be paid in accordance with such agreement;
(b) where no such agreement can be reached, the Central Government shall appoint as arbitrator a person who has been, or is qualified for appointment as, a Judge of a High Court;
(c) the Central Government may, in any particular case, nominate a person having expert knowledge as to the nature of the property acquired, to assist the arbitrator, and where such nomination is made, the person to be compensated may also nominate an assessor for the said purpose;
(d) at the commencement of the proceedings before the arbitrator, the Central Government and the person to be compensated shall state what in their respective opinions is a fair amount of compensation;
(e) the arbitrator in making his award shall have regard to‑‑
(i) the provisions of section 23 of the Land Acquisition Act, 1894 (I of 1894), so far as the same can be made applicable, and
(ii) whether the acquisition is of a permanent or temporary character:
Provided that where any property requisitioned under any rule made under this Ordinance is subsequently acquired under Section 19 or any such rule, the arbitrator in any proceedings in connection with such acquisition shall, for the purposes of the provisions of the said Section 23, take into consideration the market value of the property at the date of its requisition as aforesaid and not at the date of its subsequent acquisition;
(f) an appeal shall lie to the High Court against any award of an arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government;
(g) save as provided in this section and in any rules made thereunder, nothing in any law for the time being in force shall apply to arbitration under this section.
(2) The Central Government may make rules for the purpose of carrying into effect the provision of this section.
(3) In particular and without prejudice to the generality of the foregoing power, such rules may prescribe‑‑
(a) the procedure to be followed in arbitrations under this section;
(b) the principles to be followed in apportioning the costs of proceedings before the arbitrator and on appeal and
(c) the maximum amount of an award against which no appeal shall lie.
It is common ground between the parties that no rules under Section 18 (2) of the Ordinance have been framed by the Central Government so far. On a careful reading of subsection (1) of Section 18 of the Ordinance I am of the view that where immovable property is either compulsorily acquired or taken possession of under the Ordinance, for public purpose, compensation is payable in respect thereof which is to be determined in accordance with clauses (a) to (g) of subjection (1) of the Section 18 of the Ordinance. Sub‑clause (e) (i) of subsection (1) of Section 18 makes section 23 of the Land Acquisition Act applicable for determining the compensation for the B properties acquired under Sections 18 and 19 of the Ordinance. The compensation so determined is, therefore, payable both in respect of the land compulsorily acquired or taken possession of under the Ordinance. Since the evidence recorded before the arbitrator shows that the above survey numbers are fully in possession of the acquiring authorities and they also fall within the limits of the acquired land, I am of the view that both Shirimiti Rajkumari and the deceased Kevalram Dayarm Shahani were entitled to compensation for the excess not covered by the notice of acquisition. Such excess area of land owned by Shirimiti Rajkumari comes to 31‑24 acres while that of late Kevalram Dayaram Shahani comes to 9‑17 acres.
In Appeal No.62 of 1979 the appellant Prem Kevalram Shahani contended that the learned Arbitrator while giving his award has held that in respect of 38.24 acres of land of the appellant the acquiring authorities had only acquired easementary right and as such the learned Arbitrator awarded compensation at half the rate of the other lands which were totally acquired. The grievance of the appellant is that although it is alleged by the acquiring authority that they have acquired only easementary right in respect of 38_24 acres but in fact they are in possession of that area and the appellant has no excess to it. There is nothing in the evidence produced by the acquiring authority before the Arbitrator to show that the land in respect whereof it is claimed that only easement rights were acquired is not in possession of acquiring authority or that the appellant continues to enjoy possession and benefit of that land in spite of acquisition of easementary right by the Government. Apart from it I have already re‑produced Section 18 of the Ordinance of 1971, and failed to find anything therein in support of the proposition that the Government could acquire assessment rights in the land without acquiring the land itself. The acquisition proceedings contemplated under the above section could either be of a…
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