PAKISTAN (MINISTRY OF DEFENCE) vs DIN MUHAMMAD MUHAMMAD CHHUTAL

' This appeal filed under section 18( f ) of the Defence of Pakistan Ordinance, 1971 is directed against the award made on 24th January, 1976 by Mr. G. N. Qadri retired Sessions Judge as the Sole Arbitrator, appointed to adjudicate and determine the quantum of compensation payable to the Respondents in respect of their lands first requisitioned under section 18 and then acquired under section 19 of the Defence of Pakistan Ordinance, 1971 read with Rules 121 and 123 of the Defence of Pakistan Rules, 1971.

' The total area of the land acquired is about 567 acres Kabooli agricultural land and about 40 acres of Nak-Kabooli land situated in Taluka Jacobabad in various dehs.

' The requisition was made under the orders of the Deputy Commissioner, Jacobabad, dated 15th August, 1973 and possession was taken over in April, 1974.

2. A meeting was arranged by the Assistant Commissioner between the Khatedars and the representative of the Military Estates as provided in section 18 to decide amicably the amount of compensation for lands, houses, crops and trees. At the said meeting the representative of the Military Estates offered Rs, 3,500 per acre by way of compensation whereas the Khatedars claimed Rs, 10,000 per acre of the land as compensation.

' As no settlement was arrived at, reference was made to the Federal Government to appoint an Arbitrator. Accordingly Mr. G. N. Qadri retired Sessions Judge was appointed as the Arbitrator in September, 1975.

3. The parties submitted their claims before the learned Arbitrator. Some of the Khatedars claimed compensation @ Rs, 7,000 to Rs, 10,000 per acre and the others claimed Re. 1 to Rs, 2 per square foot on the ground that the lands are near the Highway Quetta-Lahore-Karachi and that important places of Jacobabad Municipal Town are near about their lands which therefore have potentiality of user for commercial purposes. On behalf of the Khatedars evidence was produced. They examined Gul Hassan, Abdul Sattar and Khaliq Dino Tapedar which evidence was adopted by the other Khatedars.

' Gul Hassan in his evidence stated that the land in question is surrounded by Government College, vocational school, ice factory, petrol pump, brick kilns, rice factory and District Jail and that the land was of best quality and had been improved partly for agricultural purposes and partly for building houses. It was also stated that sweet water is available in the locality and that no permission from the Deputy Commissioner is necessary to change the land for user as Sikni under section 154 of the West Pakistan Land Revenue Act, 1967, land being Kabooli since before 1957. He also cited instances in support of the value claimed by the Khatedars. He produced the Record of Rights, Village Form XV Exh. G-1 in proof of the fact that the land in the area was sold by Muhammad Inayat Ullah Khan to Mr. Ghulam Mustafa Bhughti at the rate of about Rs, 25,000 per acre. Another instance cited was that of the sale by Haji Muhammad Nawaz of his agricultural land to Muhammad Salim and others in 1975 at the rate of Rs, 1.60 per square foot and in support he produced sale-deed Exh. G-2. It was also deposed that Haji Nawaz had sold other pieces of land to Shahid Ghaffar in 1975 in deh Jacobabad ad measuring 13,703 square feet for a total consideration of Rs, 33,759. He produced the sale-deeds Exhs. G-2 and G. 3 in support of these facts. Gul Hassan also deposed that he had installed a brick kiln on unacquired portion of the land in this appeal.

' The witness No, 2 on behalf of the Khatedars produced was Abdul Sattar son of Abdul Rehman. He also proved the fact that land is situated on the Highway within the Municipal limits and within the commercial area. Accordingly to his statement the compensation for the land at its market value and potential use would be at the rate of Rs, 2 per square foot.

' The third witness produced by the Khatedars was Khatiq Dino Tapedar, Taluka Jacobabad, who in his evidence gave the details of the unacquired portions of the land of the Khatedar and also gave the details of the wells situated in the unacquired land.

' Statement was also made by the Tapedar that the land situated in Dehs Dasti and Dilawarpur Taluka Jacobabad are costly and more valuable than that of other Dehs i,e, Chawani, Rindhwahi, Jacobabad and Akilpur and the reason given by the witness was that Ahmad Mian Shaikh is flowing nearby front where water could be utilized easily.

' Inquiries were also made by the Arbitrator from Allah Wadhayo Clerk, Mr. Shaukat Ali Shaikh, Assistant Commissioner and Khatedars of Jacobabad who were present.

4. The case was thereafter adjourned to 24th January, 1976 when Mr. Abdul Majeed Khan, Deputy Assistant Military Estates Officer argued the case but he did not examine any witness.

5. The learned Arbitrator after exhaustive discussion of the evidence on record came to the conclusion that the suggested compensation to be paid to the Khatedars by the Deputy Military Estate Officer was inadequate and too low as the figures given during the arguments of the alleged rates of sale show inconsistency and were for the periods 3-5 years prior to the date of requisition/acquisition of the land in question. It was also rightly observed by the learned Arbitrator that even the Military Estate Officer had provisionally offered compensation at the rate of Rs, 3,500 per acre during the negotiations. He also referred to the fact that the Land Acquisition Officer Mr. Shaukat Ali observed and wrote in the minutes of the meeting held on 12th June, 1975 and 8th July, 1975 in the presence of the Estate Officer that the price of the land in the vicinity of P. A. F. Had come to Rs, 5,000 per acre. The alleged sales referred on behalf of the appellants were for period 6-7 years before 1973 whereas the lands in question of Khatedars were requistioned/acquired subsequent to those sales and were therefore rightly rejected by the learned Arbitrator as not relevant.

It is agreed by both the learned Advocates that according to the well settled principle, while determining the value of the compensation the market price of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration. Before the Arbitrator was also demonstrated that one acre of land now gives income of Rs, 1,000 per year and normal value of land even if be considered as equivalent to eight years rental value, it would come to Rs, 8,000 per acre as its market value.

' A perusal of record also clearly establishes that the lands in question enjoy the facilities and advantages of their being near the Highway Quetta/ Karachi/Lahore and the same are in the vicinity of important places of town Jacobabad, such as ice factory, petrol pump, schools, college, power subsection, jail, poly-technical Institute, stadium and airport. Besides sweet water is available to the cultivators and their cattles.

' The Arbitrator also took notice of the fact that in May, 1973 the Deputy Commissioner wrote to the Military Estate Officer that this land should not be requisitioned as these are costly being near to Jacobabad town and Highway road and being fertile with trees etc. The document has been produced by witness Gul Hasan and marked Exh. G. 6- ' The discussion as above would show that the evidence given by the Khatedars has gone unrebutted and the plea taken by the Military Estate Officer in arguments, in the absence of any evidence in rebuttal, cannot take place of evidence. Reference may here be made to the case of Khairunnissa v. Muhammad Ishaq where the Honourable Supreme Court cited with approval the following observations made in PLD 1959 Pesh. 81 : "It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, "and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance oing to the discredit the truth of his case."

6. Mr. Saeed A. Shaikh the learned counsel for the appellant has not disputed that no evidence was led by the Military Estate Officer in rebuttal of the evidence produced by the Khatedars. In the circumstances no exception can be taken to the evidence of the Khatedars having been believed by the arbitrator or to the grant of compensation on its basis by him at the flat rate of Rs, 6,000 per acre for the Kabooli land acquired in dehs Chawani, Lal Lodho, Jacobabad and Akilpur and at the rate of Rs, 7,000 for dehs Dasti and Dilawarpur.

' Reference be here made to the case of West Pakistan WAPDA v. Hiran Begutn where while considering the question of compensation for land acquired the Honourable Supreme Court' held that :- "What is the market price of land is a question of fact." ' in another case reported as Province of West Pakistan v. Muhammad Fazil the Honourable Supreme Court approved the grant of compensation at the rate allowed by the Court on the ground that the "land is situated in the vicinity of the expanding town of Sargodha and that the potentiality of the land as building site could not be all together ruled out". It was noted that the land could be converted into a building site only with the permission of the Government. However, taking into consideration number of transactions in the locality which had taken place, and the fact that some Textile Mills had come into existence, the Honourable Supreme Court refused to interfere with the compensation granted.

' The principles laid down in above cases fully justify the grant of compensation by the arbitrator as proper and reasonable, calling for no interference by this Court.

7. The learned counsel for the appellant then objected to the grant of special damages at the rate of Rs, 1,000 per acre for the portion which remaind unacquired out of the acquired survey numbers.

The learned Arbitrator granted compensation for unacquired portion for the reason that the portions so left out have been rendered useless and thus granted additional damages at the rate1 2 3 of Rs, 1,000 for the unacquired land. The submission of Mr. Saeed A. Sheikh is that the Arbitrator has to grant compensation for the land acquired and was not justified to grant any special damages for the alleged reasons. The learned counsel for the respondents Mr. Ahmad Mian Soomro and Mr. Nooruddin Sarki conceded to this objection and stated that they do not press for the grant of the special damages as was done by the learned Arbitrator.

8. As regards the compensation granted for huts, trees, wells, crops, it is agreed by all the learned counsel appearing for the parties that the compensation granted has been agreed to by the parties and do not call for any decision in this appeal.

9. The learned Arbitrator apart from granting compensation at the rates mentioned above has allowed 15% compulsory allowance plus 6% interest from 27th April, 1974 till payment which is justified by the provisions of section 23, subsection (2) of the Land Acquisition Act which is applicable to the acquisition proceedings under consideration by virtue of section 18(1) of the Defence of Pakistan Rules.

10. The upshot of the above discussion is that subject to disallowing special damages granted by the learned Arbitrator in para. 14 of the Award for the unacquired portion of survey numbers at the rate of Rs, 1,000 per acre, the Award made by the Arbitrator granting compensation at the rate of Rs, 6,000 per acre for Kabooli lands acquired in dehs Chawani, Lal Lodho, Jacobabad, Akilpur and Rindhwahi, and at Rs, 7,000 per acre for dehs Dasti and Dilawarpur vide para. 12 of the Award and compensation granted for trees, huts, wells and crops vide paras. 16 and 18, with 15% compulsory allowance plus 6% interest per annum from 27th April, 1975 till payment, is maintained.

11. By order passed on 16th November, 1976 while staying the execution of the Award this Court imposed the condition that the appellant shall deposit the amount awarded viz. Rs, 45,83,370 in Court within two weeks and the same was directed to be kept in fixed deposit initially for one year.

' Mr. Saeed A. Shaikh learned Advocate contended that the respondents cannot claim interest an amount awarded as well as interest on fixed deposit.

' Mr. Soomro and Mr. Sarki Advocates for the respondents submitted that the respondents would insist upon payment of the compensation and interest as awarded by the Arbitrator and that if any profit has been earned on the amount deposited in fixed deposit persuant to the order dated 16th November, 1976 and for the period of deposit if extended subsequently, may be paid to the Government/appellant.

' Accordingly it is ordered by consent of the parties as follows :- ' That the amount deposited in Court and lying in fixed deposit with Habib Bank Limited be transferred to the Deputy Commissioner, Jacobabad. The Deputy Commissioner shall make payments of the compensation awarded by the Arbitrator, to the respondents subject to the condition that profit earned on the fixed deposit will be paid to the appellants.

' At the request of Mr. Soomro it is clarified that if any deficit is found while distributing the compensation to the respondents it would be open to them to take appropriate proceedings for recovery of the amount due to them.

12. As the appeal has been disposed of on merits, other legal objections raised on behalf of the respondents have not been discussed.

' In the circumstances of the case the parties shall bear their own costs. PLD 1972 S 25 1972 SCM R 138 1968 SCM R 12331 2 3