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Petitioner: MUHAMMAD AKHTAR IQBAL VS Respondent: THE LAND ACQUISITION COLLECTOR, JUDGMENT
Court Name: Lahore High Court Judge(s): Munir A. Sheikh, Abaid Ullah Khan Title:MUHAMMAD AKHTAR IQBAL vs THE LAND ACQUISITION COLLECTOR,
JUDGMENT
Reported As: 1989 MLD 4298 Result: Appeal allowed Judgment JUDGMENT MUNIR A. SHEIKH, J.--This appeal is directed against the judgment and decree dated 4-12-1986 passed by Ch. Riaz Ahmad, Sensor Civil Judge Sheikhupura on reference made under Section 18 of the Land Acquisition Act, 1894. The facts giving rise to this appeal in brief arc that through notification dated 25-12-1968 issued under section 4 of the Land Acquisition Act, 1894, published in the official gazette dated 17-1-1969, the respondents acquired land measuring 400 kanals 19 marlas situated in village Mominpura District Sheikhupura which included the land owned by the appellant measuring 32 kanals 13 marlas. The land was acquired for construction of super highway. The possession of the land was taken on 30-1-1970 as is manifest from Ex.P.18. The award was pronounced by the Land Acquisition Collector on 7-4-198(1. Before the Land Acquisition Collector the present appellant raised the following claims:-- (1)Price of the land @ Rs. 2000 per marla (2)Loss on account of shifting of business of Ready-made Garments Factory, loss of said property and earning from the said business in the process Rs. 16,50,000 (3)Damage caused to the Poultry Farm business and building raised for the purpose Rs. 4,19,040 (4)Loss caused to the business of Dairy Farm Rs. 1, 16,100 (5)Loss of business of Sheep Farm Rs. 96,000 (6)Losses of business of Fish Farm Rs. 18,000 (7)Price of trees Rs. 76,253
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(8)Damage sustained on account of depreciation in the value of his remaining land by reason of severance such land from the land acquired Rs. 1,60,000 (9)Damage sustained due to loss of buildings, structures, tube-well etc. Rs.7,21,980 The Land Acquisition Collector in the award granted compensation on account of price of: land at the rate of Rs. 75 per marla. The claims mentioned at items Nos, 2, 3, 4, 5 6 and 8 were dis-allowed. On account of price of trees he awarded Rs. 368 and for damages caused to the buildings and structure he allowed an amount of Rs. 70,000. Feeling dis-satisfied with the award the appellant made an application on 29-5-1970 for making reference to the Court for determination of the dispute regarding correctness of the award. The learned Acquisition Collector refused to make reference because in the meantime Government had decided to withdraw the notification regarding acquisition of land because the purpose for which the same was required had been abandoned. The appellant was required to pay back the amount received by him under protest as determined in the award. The appellant approached this Court by filing W.P. No. 1130/75 seeking a direction to the Acquisition Collector to make reference as required under Section 18 of the Land Acquisition Act, 1894. This writ petition was accepted by this Court through judgment dated 11-3- 1981 and the Land Acquisition Collector was directed to make reference in pursuance to the said judgment of the Court the Land Acquisition Collector made reference to the learned Senior Civil Judge, Sheikhupura. In this reference the appellant reiterated his previous stand and claimed compensation for various items and the amounts mentioned above against them. These claims of the appellant were contested by the respondents by filing reply to the application of the appellant under section 18 of the Land Acquisition Act, on which reference was made. The learned trial Court framed the following issues on 29-7-1982:-- (1)Whether the application for referring the case by the petitioner to the Civil Court for the determination of compensation of the petitioner's land is barred by time? OPR (2)Whether the petitioner's land measuring 867 marlas situated in village Mominpuer was acquired for the construction of Super Highway by the respondents, If not, what is the exact measurement of the land which has been acquired by the respondents for the said purpose? OPP (3)Whether the award in question does not fulfil the requirements of sections 23 & 24 of the Land Acquisition Act, 1894. If so, whether the compensation awarded by the respondents is inadequate and much below the prevalent market price? OPA (4)Whether the present application is maintainable in view of the denotifcation of all the notifications issued under the Land Acquisition Act, 1894 in respect of the land in dispute? OPA (5)If issues Nos. 1,3 & 4 arc proved in the negative, then what' is the fair and adequate compensation of the petitioner's land? OPA (6)Relief. Subsequently on 11-11-1982 an additional issue 5-A was also framed which is as under:-- 5-A.Whether the petitioner built a factory over the land in dispute if so, whether he is entitled to compensation of the building, constructions, trees plants business and industrial losses and severance allowances and if so, to what extent? OPA 3. In support of his claim the appellant examined Masood Sadiq s/o Noor Muhammad as PW.1, Khawaja Maqbool Hasan s/o Hafiz Muhammad Jan as PW.2, Mehtab A.I s/o Mumtaz A.I as PW.3 and he examined himself as his own witness as PWA Apart from this oral evidence the appellant also produced documentary evidence from Ex.P.1. To Ex.P.66. To rebut the evidence of the appellants the respondents examined only Saghir Ahmad Chatha, Councillor Municipal Committee, Sheikhupura as RW.1. The respondent also produced site---plan showing the details of superstructure existing at the land as R.1. 4. After the parties had concluded their evidence, on 21-3-1985 the appellant moved an application for appointment of Local Commissioner before the learned trial Court to make a report after
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visiting the site regarding claims of the appellant in respect of compensation for land, factory, farms, trees and machinery etc. The learned trial Court by order dated 16-5-1985 appointed Ch. Muhammad Ashraf Anjum, Advocate, as Local Commissioner to submit his report after visiting the site on the above matters. The Local Commissioner submitted his report on 19-10-1985. Both the parties filed objections to the said report on 30-11-1985. Both the parties agreed through statement recorded on 14-1-1986 that the objections on the report may be disposed of along with the final decision of the case. The learned trial Court, however, framed the following issue on 19-2-1986 on the objections to the report of the Local Commissioner filed by the parties. The issue framed as 5-B runs as under:-- 5-B. Whether the report of Local Commissioner is liable to be set aside? OP. Parties The learned trial Court then adjourned the case to 29-3-1986 for recording evidence on this issue. However, learned counsel for the appellant made a statement on the said date for not pressing objections to the report. The respondents examined RW.2 to assail the report of the Local Commissioner and closed his evidence. On the application moved by the respondents for summoning and examination of Local Commissioner to prove his report the learned trial Court summoned the Local Commissioner who was examined as RW. 3 who proved his report which was produced in evidence as Ex. R. 2 and site plan attached with the report as RW.2/1. 5. After appraising the evidence of the parties both oral as well as documentary the learned trial Court answered issue No. 1 against the respondents. It was held that the reference was within time. Under issue No. 2 it was held that the land measuring 32 kanals 13 marlas owned by the appellant was acquired.-Issue No. 4 has been decided against the respondents. It has been held under this issue that the possession of the land was taken over by the respondents on 30-1-1970 and that after taking over possession the respondents could not refuse payment of compensation to the petitioner. Under issue No. 5-B, the learned trial Court held that the Local Commissioner in making his report relied upon evidence already on the record and expert opinion which was not subjected to cross-examination, therefore, the said report could not be relied upon. The report of the Local Commissioner was, therefore, set aside. Issues Nos. 3, 5 and 5-B were taken up together and answered against the appellant. The appellant was found not entitled to the enhancement in compensation already determined by the Collector in the award and as a result thereof the reference was dismissed through impugned judgment and decree 4-12-1986. 6. During the hearing of this appeal, the appellant made an application bearing C.M.No. 2252/C of 1988 under Order 41 Rule 27 read with Section 151 CPC seeking permission to produce oral as well as documentary evidence mentioned therein by way of additional evidence. After analysing-the evidence already brought on record we vide order dated 8-6-1988 with detailed reasons allowed the said application as in our opinion the recording of additional evidence was necessary not only to do complete justice in the case but also that the said evidence was required by the Court to enable it to pronounce judgment. The learned trial Court was directed to record the additional evidence of the appellant and of the respondents in rebuttal and transmit the same to this Court. The learned trial Court in pursuance thereof recorded the additional evidence which has been transmitted to this Court. In additional evidence the appellant examined Mr. Mushtaq Farooqi as PW.5, Dr. Abdul Rahim as PW. 6 and Muhammad Latif as PW.7. Apart from this oral evidence the appellant produced documentary evidence such as PW.5/1, PW.5/2, PW.6/2, PW.7/1 and copy of mutation No. 49, as Ex. P.67, copy of mutation No. 371 as Ex.P.68, copy of mutation No. 374 as Ex.P.69, copy of mutation No. 375 as Ex.P.70 and copy of Titima as Ex.P.71. Learned counsel for the respondents made statement on 5-9-1988 that the respondents did not want to produce any evidence in rebuttal. 7. We have been taken through the evidence by the learned counsel appearing for the parties. The Land Acquisition Collector as is evident from the award dis-allowed the compensation to the
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appellant on account of damage to the business of Readymade Garments Factory, Poultry Farm, Dairy Farm, Sheep Farm and Fish Farm mainly on the ground that when he inspected the spot and made the award these were not m existence. He went to the extent of holding that they did not exist at the spot even on the date of publication of notification under section 4 of the Act which as has been mentioned above was published in the Gazette on 17-1-1969. The learned trial Court has also in the impugned judgment disallowed claim to the appellant on account of losses allegedly sustained by him in respect of the said business. It may be observed at the very out set that the approach of the Collector that the appellant could be awarded compensation for these losses only if they existed at the spot at the time of his inspection and making of the award is wholly fallcious and unsustainable. His finding that these were not in existence at the time of publication of notification under section 4 of the Act is based on misconstruction and mis reading of the record. The appellant has produced on record Ex.P.1 which is a notice under section 9 of the Land Acquisition Act, 1894 which is dated 13-12-1969, at the back of which the detail of the land of the appellant which was acquired with khasra numbers has been given. In this document against Khasra No. 28/1 measuring 13 kanals 7 marlas it ha. Been recorded that there is Poultry Farm and factory. The appellant through the notice has been directed to appear before the Land Acquisition Collector on" 29-12-1969. Ex.P.4 is a letter dated 15-11-1969 written by the appellant to the Director General Highway Authority, West Pakistan, Lahore, on which the Tehsildar, Super Highway, Lahore, passed an order on 16-12-1969 in which he observed that a list was got prepared through Girdawar regarding machinery, animals etc. And the owner had been informed to remove his said belongings from the land. Ex.P.5 is the copy of the list mentioned in the said order of Tehsildar dated 16-12-1969 in which details of trees standing on the land alongwith their ages with kind of each tree has been given. The details of other items given in this list is as follows:-- URDU PARAGRAPH 4302 The contents of this document have been admitted as correct by the learned counsel for the respondents through a note given by him on this document. Ex.P.6 is the list showing the kind of each tree standing on the land with their ages and prices thereof. The correctness of the contents of this list has also been acknowledged through noting recorded by the learned counsel for the respondents on this document. Ex.P.7 is a letter from Extra Assistant Director of the Land Acquisition and Control Officer, Highways Department, referring to list of plants Ex.P.6 stating therein that the approximate value of the plants were given therein. Learned counsel for the appellant also admitted in writing the correctness of the contents of this document. EX.P.11 is a copy of Field Book of land brought under consolidation. According to this document there was a mosque constructed on Khasra No. 48/1/1 of the appellant and on the other Khasra No. 48/1/2 measuring 13 kanals 6 marlas, there was a Poultry Farm and Factory. This document was prepared on 7-6-1969 which has been duly signed by Naib-Tehsildar. Ex.P.12 is a letter dated 26-11-1969 from which it is manifest that the appellant was running Poultry Farm business on the land. Through Ex.P.I7 dated 30-3-1970 the appellant complained that the value of his remaining land measuring about 10 kanals on account of severance of land acquired had been reduced. Documents from Ex.P.26 to Ex.P.60 which relate to the period prior to acquisition of land established that the sanction was granted by the Government to the appellant to establish Garment Factory. Ex. P.27 is a document which establishes that the Chief Controller of Imports and Exports registered the appellant as importer. These documents also show that the appellant imported huge machinery for setting up garments factory. He was issued export licences to export product of garments abroad. Documents such as Ex.P. 14, P.15 and P.18 are not relevant to the matter in issue. Documents from Ex.P.l9 to 20 relate to the period from 23-12-1971 to 8-2-1972 which is subsequent to the date of acquisition of land, therefore, they are also irrelevant to the matter in issue. Ex. P.21 is dated 7-5-1975 and this document as also documents from Ex.P.22 to 25 for the same reasoning cannot be considered.
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8. We have elaborately analysed the documentary evidence so as to demonstrate that the existence of Garment Factory, Poultry Farm business, Diary Farm business and Fish Farm business was very much in existence at the land of the appellant much prior to the date of publication of notification under section 4 of the Act. The existence of trees on the land has also been duly established from this documentary evidence as discussed above. These documents have been prepared by the officers of the respondents, the correctness of contents of which have been admitted by the learned counsel for the appellant through noting given on these documents as observed above. 9. We now proceed to examine the correctness or otherwise of the findings recorded by the learned trial Court regarding the claims made by the appellant. The Land Acquisition Collector assessed the price of the land at Rs. 75 per marla which has been upheld by the learned trial Court. The appellant has produced copy of mutation No. 49 attested on 17-4-1970 (Ex.P.67). According to this mutation land measuring 3 marlas was sold through registered sale deed dated 18-10-1969 for an amount of Rs. 15,000. According to this document the price of per marls comes to Rs. 500. Ex. P.68 is another mutation No. 371 attested on 8-5-1965 on the basis of oral sale of land measuring 14 marlas for Rs. 6,000. According to this document the price of per marla comes to Rs. 428. Mutation No. 374 attested on 8-5-1965 (Ex.P.69) shows that the land measuring 10 marlas was sold for Rs. 3,550 and according to this price per marla comes to Rs. 350. Ex.P30 is mutation No. 375 attested on 8-5-1965 according to which land measuring 1 kanal was sold for Rs. 7,000. According to this document the price of per marla comes to Rs. 350. The notification regarding acquisition of land since was published in the gazette on 17-1-1969, therefore, mutation No. 67 though attested after this notification is nearer in time to the date of acquisition of land, than mutations No. 371, 374 and 375 which were attested about four years prior to the acquisition i.e. On 8-5-1965. It is in the award of Land Acquisition Collector that the Collector supplied data to the Land Acquisition Collector in which it was stated that the price of the land was Rs.500 per marla i.e. Rs.10,000 per kanal. This information given by the District Collector who is official of the respondents can very well be taken into consideration to hold that the price of the land was in fact Rs. 500 per marla at the relevant time which is further supported by mutation No. 49. It is also an admitted fact that the land is situated at eleventh mile from Lahore on Lahore-Sheikhupura Road and it has 1200 feet frontage on Lahore-- Sheikhupura Road. After considering this evidence as also the oral testimony of the appellant himself we are fully convinced that the finding of the Collector as upheld by the learned trial Court in respect of market price of the land at Rs.75 per marla cannot be maintained, it is, therefore, set aside. Likewise the appellant has not been able to prove the price of the land at Rs. 2,000 per marla as claimed by him. The reliance to claim the said price is on Ex. P.2 through which the acquired land on the road side was leased out per year at lump sum price of Rs. 1,000 per marla in the year 1967. We do not consider it a relevant document to determine the market price as the considerations for leasing out property are different. This document can also not be given any credence in view of documentary evidence produced by the appellant himself as discussed above. We hold that the price of the land at the relevant time was Rs. 500 per marla and the appellant is entitled to compensation of the land at the said rate. Accordingly he is found entitled to an amount of Rs. 3,26,500 as price of his land measuring 32 kanals 13 marlas. 10. The appellant claimed an amount of Rs. 16,5000 as compensation on account of loss suffered by him in the process of shifting his Readymade Garments Factory installed on the land due to acquisition and the damage done to the machinery as also loss of earning from the said business. The appellant examined Khawaja Maqbool Hasan PW.2 in support of this claim. This witness deposed that he was himself owner of Garments Factory at Lahore and also owned a shop of ready-made Garments in Anarkali, Lahore. He stated that in the year 1968/69 he was the dealer of ready-made garments and did not own factory. He also stated that he had seen the ready-made
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Garments Factory of the appellant on the land in dispute on Sheikhupura road because he used to purchase the ready-made garments from the appellant for retail whole sale business. This witness went on to state that he had been contacting the appellant for three years till the land was acquired by the Highway Department. This witness has given details of the machinery installed by the appellant in the factory. According to this witness the production of the factory was about 700 to 725 pieces per day and profit of per piece was 5 to 6 rupees and as such earnings of the appellant was about Rs. 3600 per day and profit per month would come to Rs. 95,000. According to this witness ordinarily it required 16 months to re-establish such a business as it involved purchase of new site for installation of machinery, managing new power connection to go into the production once again, and then to enter the market for regular sale and to earn goodwill. According to this witness the appellant had suffered loss of earning to the extent of Rs. 15,00,000. The damage caused to the machinery in process of dismantling and shifting and re-erection according to this witness was Rs. 75,000. The loss of stock in the estimation of this witness was Rs. 25,000 and goodwill and other labour charges etc. Was Rs. 55,000. The appellant himself appeared as PW.4 and supported his claim relating to this item. From document Ex.P.5 the correctness of which has been admitted, which has been prepared by the officials of the respondents themselves, it is demonstrably clear that the appellant had installed a factory over the land and evidence of these two witnesses also establishes that the factory of the appellant was manufacturing the ready-made garments to the extent of 700 to 725 pieces per day and this business was in full swing when the land was acquired. The finding of the Acquisition Collector in the award is based on mis-reading and non-consideration of evidence produced by the appellant. Khawaja Maqbool Hasan PW.2 was an experienced businessman who had been dealing with the business of ready- made garments. His evidence inspires confidence. He has been subjected to lengthy cross- examination but his testimony could not be shaken. There are no good reasons to reject his evidence. The appellant has been successful to prove the loss of business property and earnings due to dis--mentaling and shifting of ready-made garments Factory to the tune of Rs.16,50,000. The respondents have not produced any evidence to rebut the evidence of the appellant which is of unimpeachable character. We allow the claim of the appellant on this account to the tune of Rs. 16,50,000. 11. The appellant's claim regarding loss of business of Poultry Farm is Rs. 4,19,040. To prove this claim he has examined Mehtab A.I s/o Mumtaz A.I as PW.3. It is in the evidence of this witness that he was also doing the same business and was maintaining a Poultry Farm. He had also a shop of poultry in Tollinton Market, Lahore. He deposed that he used to purchase eggs from the Poultry Farm of the appellant which was situated on the land in dispute. He also deposed that the Poultry Farm of the appellant had three four sheds and the appellant was having five thousand to six thousands layers. According to him nearly 80 per cent of the layers used to lay eggs when the acquisition of the land took place. He had been purchasing the eggs at the rate of Rs. 3.25 to Rs. 3.50 per dozen and the daily sale of eggs of the appellant was Rs. 1100. The not profit according to this witness per month from this business was nearly about 23 to 24 thousand rupees and the not loss to the appellant for one year according to estimation of this witness was Rs. 2.90.000. According to this witness it would take at least 6/7 months to build up new farm and grow up the laying stock to earn profit from it. He further deposed that the other loss of the appellant regarding this business is Rs. 25,000. The appellant himself as PW.4 stated that he was earning a profit of Rs. 25,000 per month as such his loss of profit per year was about Rs. 2,81,000 and for disposing of the layers etc. Is Rs. 4,20,000. The assertion of the appellant that he had poultry farm business on the land in dispute is a fact which has been fully established beyond any doubt through Ex.P.5. Which as stated above has been prepared by officials of the respondents, the contents of which have been admitted as correct. From Ex.P.5 it is also clear that the appellant had made extensive provision for maintaining
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this poultry farm business. From this documentary evidence read with oral evidence of PW.2, we are convinced that it has been proved that the appellant had suffered a loss of profit of Rs. 24,000 per month on account of poultry farm business. According to PW.2 it would take 6/7 months to build up new farm and grow up the laying stock to earn profit from this business. The loss of profit of seven months calculated on the basis of Rs. 24,000 per month comes to Rs. 1,68,000. The appellant is not entitled to any amount beyond this due to sufferance of income from this business. The appellant in his statement has also claimed Rs. 4,20,000 as further loss occasioned because he was compelled to dispose of layers. There is no evidence to corroborate this loss to the extent of Rs. 4,20,000. According to P.W.2 the other loss suffered by the appellant in this respect was Rs. 25,000. The appellant, therefore, cannot be granted an amount of Rs. 4,20,000. We, however, allow an amount of Rs. 25,000 to the appellant on the basis of evidence of P.W.2. As a result of foregoing finding the appellant is hereby held to have suffered a total loss of Rs. 1,93,000, regarding loss…
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