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Civil Miscellaneous Appeal No. 110 of 1973, decided on 9th March 1976.

-- S. 6(2)-Determination of compensation-Owner of property to take proper care and to be sure that anything going in his favour must be properly proved - Vague generalities not sufficient.

Kamal Mansur Alam for Appellant.

Haji Muhammad Memon for Respondent.

Date of hearing : 9th March 1976.

The facts involved in this appeal are that Flat No. 2 in Shama Naz building, situated at Bath Island. Karachi, belongs to a trust known as Dr. Zubeda Hamid Ali Trust. It was requisitioned by the Provincial Government on 21-9-1970. On 5-12-1970, compensation at the rate of Rs. 464.00 per month was determined by the Additional Commissioner, Karachi, in con sultation with the Executive Engineer, Provincial building Division No. III, Karachi. On 19th January 1971, the appellants moved the District Judge, Karachi, under section 6 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, for the proper determination of the compensation.

2. It appears that the appellants examined one of its trustees, namely, Dr. Hamid Ali Khan, and an Executive Engineer from the Central Government, namely Talqeen Abmad. No body was examined on behalf of the Government. Dr. Hamid Ali Khan had stated that the flat in question had been rented out earlier, that the entire building, consisting of eighteen fiats bad been let out to Oil and Gas Development Corporation in the year of its construction, that is 1964, against a rent of Rs. 600.00 per at. This was exclusive of the water, conservancy and electric charges. Be also produced a letter from the company in question. After the termination of the tenancy of the Oil and Gas Co. three years later, Flat No. 2 had been rented out to Netherlands Embassy at the rate of Re. 600.00 per month, and thereafter, in July 1970, there was a negotiation with the Ministry of Defence, Government of Pakistan, who were willing to pay Rs. 7f0.00 per month as the rent thereof. It was at this time that the said flat came to be requisitioned by the Provincial Government. It has, however, been brought out on the record that a flat, consisting of almost identical area, had been let out to one Mrs. Abbas only against a rent of Rs. 550.00 per month; and what is more she had been supplied fans and provided with some other facilities, which were not avail. able to the respondent No. 4.

3. In this context, it might be mentioned that, apart from the fact that nobody had been examined in support of the statement made by Dr. Hamid Ali Khan, and therefore the allegations had not been proved, the fact remains that all that was open to the arbitrator under section 6 (2) of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956-as admittedly the building was raised after 1947, or, to be precise, in 1964-the compensation had to be determined strictly in terms of sub section (2). According to subsection (2), after the deduction of the taxes and insurance premium for insurance against fire and earthquake, the com pensation would not be less than five per cent, or, more than six per cent of the cost of the construction of the building. It was stated by Dr. Hamid Ali Khan that the plot. measuring 3000 sq. yds. had been purchased for a sum of Rs. 1,50,000.00. There is nothing more, beyond his words in that context. It was again said by him that the building had been raised at a cost of Rs. 15,00,000.00. Again this statement is totally unsupported. There was a contention on behalf of the respondents that the building did not consist of only eighteen flats, but subsequently six flats had been added. The fact, that there are additional structures apart from the eighteen fiats, has not been controverted at the Bar either. All that is said is that the additional costs of the constructions have, however not been taken care of. I do not know as to what the additional costs incurred were. Even if these additional constructions are eliminated from consideration, the cost of construction be assumed to be 15 lacs, and the eighteen flats are kept for computation in accordance with the rule laid down in section 6 (2) of the Act. at its maximum of six per cent, it could not work out beyond Rs. 417.00 per month, per flat, as stated by Mr. Haji Muhammad Memon, and not disputed by Mr. Kamal Mansoor Alam.

4. It was contented by Mr. Kamal Mansoor Alam that Dr. Hamid Ali Khan had offered to produce the actual cost of construction, and it should have been insisted upon by the arbitrator. It is to be seen that Dr. Hamid Ali Khan had abstained from saying anything in definite terms in his examination-in-chief. He made this statement at the end of the cross. examination, and it is rather strange that this should be deemed to be sufficient by the learned counsel appearing on his behalf. It was the bounden duty of the trustees to have taken proper care and to be sure that anything which A could be in their favour in terms of subsection (2) of section 6 of the Act. referred to earlier, had to be properly proved, and there was no question of taking any chance therein. The vague generalities resorted to were not sufficient. He was an educated gentleman, and, on the showing of the appellants, was assisted by lawyers. I could not be told by Mr. Kamal Mansoor Alam as to how the arbitrator was under any obligation to work as his guide, or, adviser. In the circumstances, the award made by the Arbitrator is not open to an exception. 1, therefore, dismiss the appeal. However, there will be no order as to costs.

S. Q. Appeal dismissed.

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