MUHAMMAD AKHTAR IQBAL Versus LAND ACQUISITION COLLECTOR

ORDER

ABAID ULLAH KHAN, J.-- This is an application moved by the appellant under Order XLI, Rule 27 read with section 151, C.P.C. for allowing him to produce oral as well as documentary evidence mentioned ,therein by way of additional evidence.

2. Land measuring 32 kanals 13 marlas owned by the petitioner was acquired through notification issued under section 4 of the Land Acquisition Act, 1894 published in official Gazette on 17-1-1969 and possession thereof was taken on 30-1-1970. The Land Acquisition Collector delivered his award on 7-4-1970 assessing the market value of the land for determining the quantum of the compensation at Rs.15,000 per acre v; against the claim of the petitioner at the rate of Rs.2,000 per marla.

3. Through the instant application the petitioner seeks permission to produce as additional evidence the documents mentioned at serial numbers A to H under paragraph 3 as well as data of market price prepared by the Collector of the District on 4-2-1970 on the request of Land Acquisition Collector. Apart from this documentary evidence, the petitioner has also prayed for examination of Engineer, retired Director Livestock and Mr. M. Latif Chaudhry respectively. This application has been vehemently opposed by the learned counsel for the respondents who argued that under Order XLI, Rule 27, C.P.C. the petitioner is not untitled as a matter of right to produce any additional evidence and since according to him it is not a case where the trial Court has either refused to admit evidence which ought to have been admitted or that the petitioner was not provided reasonable opportunity to produce evidence as such the petitioner merely wants to fill up omissions and patch up weak part of his case which cannot be permitted under the law. In support of his contentions, learned counsel for the respondents placed reliance on judgments reported as Sh.Muhammad Ikhlas and others v. Muhammad Ismail P L D 1963 S C 466, Mst. Babara and others v. Abdul Akbar and others 1973 S C M R 335 and Abdul Hamid v. Khurshid Begum P L D 1965 (W.P.) Lah. 187.

4. We have elaborately scrutinized oral as well as documentary evidence produced by the parties in order to arrive at right conclusion as to whether production of additional evidence at this stage could be allowed and production of such additional evidence was even otherwise necessary to enable the Court to pronounce judgment and that there was any substantial cause for its production.

5. The case of the petitioner has throughout been from the very start that he had installed a Readymade Garments Factory, Poultry Farm, Dairy Farm, Sheep Farm and Fish Farm on the land. According to him he had also grown fruit bearing trees/plants and other trees for which he was entitled to compensation. The Land Acquisition Collector disallowed compensation to the petitioner on account of Readymade Garments Factory, Poaltry Farm, Dairy Farm, Sheep Farm and Fish Farm on the ground that the compensation for these on account of their loss could only be granted, had they been existing at the time of award and taking over of possession. According to his finding these were not in existence at the time when he inspected the spot and made the award and has gone to the extent of holding that they also did not exist at the spot even on the date of publication of notification under section 4 of the Act. The petitioner challenged the correctness of assessment of compensation with regard to value of the land, superstructure, fruit trees and other trees and costs of superstructure determined by the learned Acquisition Collector in the award. The details of the superstructure are manifest from document Ex.R 1 produced by the respondents. Apart from that a document Ex.P5 has also been brought on record in which details of Readymade Garments Factory alongwith machinery installed therein as also details of Dairy Farm, Sheep Farm, Poultry Farm alongwith the details of superstructure and tubewell etc. installed alongwith number of machineries as also the details of number with kinds of trees and their numbers have been given. This document has been prepared by revenue staff of the respondents and it bears the acknowledgement by the respondents that it was the correct copy of the original. Apart from this there is another admitted document, i.e., P6 in which detail has been given about the numbers of each kind of trees with their ages as also the approximate value of each tree which has been prepared by Assistant Plant Protection Officer, Lahore. It is also evident from the award itself that the documents mentioned at serial numbers A to E which are sought to be produced as additional evidence were also relied upon by the petitioner before the Collector but they were kept out of consideration for the purpose of determining of the compensation and the market price of the land. Keeping in view that the Land Acquisition Collector proceeded under the erroneous assumption of facts that compensation could only be granted to the petitioner for loss of business of Garments Factory, Poultry Farm, dairy Farm, Sheep Farm and Fish Farm provided it existed at the time of making the award and delivery of the possession and his finding that the same were not even existing at the time of issuance of notification under section 4 of the Land Acquisition Act was passed on conjectures and surmises which finding was proved to be wrong as according to Ex.P5 even the Revenue officials confirmed the existence of all these at the spot. The petitioner was deprived of his valuable rights to receive the correct and proper compensation of his land and the other superstructure. The Lard Acquisition Collector was under legal obligation to assess the compensation taking into consideration all these materials. The question whether documents at serial numbers A to E could be kept out of consideration and were so that they could not be made the basis for determining market price of the land it would be necessary to examine them for which purpose their production as additional evidence so as to bring them on the record is very much necessary which this Court would require to enable it to pronounce judgment as also to do complete justice in the case. Apart from these reasons these documents are certified copies of the Revenue record about the authenticity and genuineness of which there can be no doubt. Their production in the evidence would help in arriving at the correct conclusion. As has been noted above, in the document Ex.R 1 superstructure existing at the land has been fully detailed and in Exs.P5 and P6 the details of Dairy Farm, Sheep Farm and the trees etc. have been fully given, therefore, the basic data about 'the existence of these things being available as such it would be necessary and requirement of this Court to enable it to pronounce judgment that evidence be brought on record about their value. For this purpose the evidence sought to be produced from serial number F to H under paragraph 3 of the application would certainly also be very much relevant and helpful in arriving at correct decision. We have also noticed that data of market price was prepared by Collector of District on 4-2-1970 at the request of the Land Acquisition Collector himself which finds mention in his award which has been ignored by him merely observing that the Collector had just endorsed the Revenue official of the Halqa. This report which is the official version of the respondents would be very much relevant for the purpose of determining the real question of controversy between the parties which must be brought on the record so as to examine it and find out as to what market value of land was suggested by him which would also be necessary to enable the Court to decide the case properly. On the question of assessment in respect of Dairy Farm, Sheep Farm etc. the details of which have been brought on the record, it would be necessary to examine Engineer, Retired Director Livestock and Mr. M. Latif Chaudhry alongwith the assessment of losses made by Retired Director Livestock Farm. This is a case where the Land Acquisition Collector has not discharged his legal obligations properly and it was due to his omission that assessment of t compensation was not made properly, which has resulted in grave miscarriage of p justice and prejudice to the petitioner. The basic data alongwith full particulars of; each and every item existing at the spot at the relevant time even according to the admission of the respondents is available on the record and it is only for the purpose of assessing their value that the additional evidence which is sought to be produced is required. In this view of the matter, the case law relied upon by the learned counsel for the respondents is not relevant and applicable to the facts and circumstances to this case. It is not a case where the petitioner earlier failed to establish the very existence of Poultry Farm, Dairy Farm, Sheep Farm and Fish Farm etc. which he never wanted to establish. Had it been so, the arguments of the learned counsel for the respondents might have carried some force. As has been held above, the additional evidence sought to be produced would be required by the Court to pronounce judgment without which it would be difficult to determine the real question in controversy between the parties finally and effectively. We, therefore, allow this application. The petitioner is hereby allowed to produce as additional evidence the documents mentioned at serial numbers A to H. He is also allowed to examine Engineer, retired Director Livestock and Mr. M: Latif Chaudhry as witness in additional evidence in addition to a witness from Lahore Nursery to prove the chart showing assessment of price of trees mentioned at serial No.H. The petitioner has made complaint in this application that the copy of data of market price prepared by Collector of District dated 4-2-1970 when applied for was not supplied to him on the ground that the concerned office had no facility of copy branch. The learned Senior Civil Judge shall summon the said data from the concerned office and place it on the record as additional evidence.

6. The prayer of the petitioner for appointment of local commissioner to obtain its report about compensation of building structure, Poultry Farm, Dairy Farm, Sheep Farm and Fish Farm etc. cannot be allowed at this stage inasmuch as he has been allowed to examine the witnesses mentioned by him in this respect. The case is remitted to the learned Senior Civil Judge, Sheikhupura with B the direction to record the said additional evidence allowed to the petitioner as also the evidence in rebuttal, which the respondents may like to adduce and return the record alongwith the additional evidence so recorded to this Court before 20-9-1988, positively. The parties are directed to appear before the learned Senior Civil Judge, Sheikhupura on 20-6-1988. The appeal to come up on 20-9-1988.

M.Y.H./M-772/L Case remanded.