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Regular First Appeal No. 6 of 1975, decided on 11th November, 1986.

‑‑S. 4‑‑Acquisition of land‑‑Compensation‑‑Market value‑‑Appellant purchased agricultural land from Government under Colonization of Government Lands Act and according to conditions of sale, land was not to be converted into residential area without permission of Government‑‑Appellant contending that land ;vas acquired for residential accommodation and that it should not have been treated as agricultural land and its market value should have been assessed accordingly‑ Appellant admitting that he had not sold any plot for purpose of construction‑‑Plan allegedly prepared for residential accommodation also not produced by appellant in evidence and there existed no evidence that acquired land was not agricultural land but a residential area, Held, land in question was rightly treated as agricultural land and its market value as such was correctly assessed.

‑‑‑S.4‑‑Acquisition of land‑‑Compensation for fruit trees‑‑Compensation assessed on acquired land and fifteen per cent compensation allowed on compulsory acquisition of land‑‑Fruit trees in gardens were separately assessed on basis of opinion given by expert‑‑Contention, that fifteen per cent compensation on fruit trees should also have been allowed, repelled.

Hamidud Din Kasuri for Appellants.

Nemo for Respondents.

Date of hearing: 11th November, 1986.

.‑‑Land measuring 6250, Kanals in Chak No. 47/N.B. Tehsil Sargodha, District Shahpur (now Sargodha) was required for construction of technical and domestic accommodation and extension of air field for Pakistan Air Force. A notification under section 4 Land Acquisition Act was, therefore, issued on 9th March, 1957. Notification under section 5 Land Acquisition Act was issued on 5th April, 1957 and notification under section 17 of the said Act was issued on 8th May, 1957. The possession of the said land was delivered to Pakistan Air Force immediately after notification under section 17. The Land Acquisition Collector, Sargodha initiated proceedings to assess compensation for payment to the owners. Land measuring 519 Kanals in Chak No.47/N.B. belonged to Chaudhry Zafar Ullah Khan Mst. Qudrat Begum, Chaudhry Rehmat Khan and Muhammad Fazal. The Land Acquisition Collector gave award after detailed inquiries and hearing of the parties in two parts. The first part of award was given on 30th December 1958 and second part of the award was announced on 14^th February, 1959. The Land Acquisition Collector divided the entire land under acquisition in three grades keeping in view firstly its situation, secondly its proximity to town and thirdly the built up area in the said land. In order to demarcate the land in three grades, he prepared a plan Exh. P.R. The land belonging to Chaudhry Zafar Ullah Khan etc. petitioners was of Grade‑I. The Land Acquisition Collector in Part I of his award assessed compensation at the rate of Rs.6,000 per acre for Grade‑1, Rs.5,000 per acre for Grade‑II and Rs.4,000 per acre for Grade‑III. The land belonging to Chaudhry Zafar Ullah Khan and Mst. Qudrat Begum measured 211x' acres. Muhammad Fazal owned 1831 acres and Rehamt Khan owned 1241 acres. The Land Acquisition Collector besides assessing price of land also assessed compensation for stray trees like Keeker, Sheesham and Beri etc. He has allowed compensation at the rate of 15 on account of compulsory acquisition. There were gardens on some parts of the lands of the appellants. The Land Acquisition Collector asked Extra Assistant Director Agriculture to assess value of garden trees which was accordingly done. The opinion of Extra Assistant Director Agriculture was accepted. However, the Land Acquisition Collector treated the garden trees as crop and, therefore, did not allow 15 surcharge.

Chaudhry Zafar Ullah Khan, Mst. Qudrat Begum, Chaudhry Rehmat Khan and Muhammad Fazal feeling dissatisfied filed an application under section 18 to challenge the compensation awarded to them. This was referred to Senior Civil Judge, Sargodha for determination who registered it as L.A. Case No.1 of 1959. The learned Senior Civil Judge after considering the evidence on record increased the price of land of all the three grades by Rs.1,000. He assessed Rs.7,000 per acre for Grade‑I, Rs.6,000 per acre for Grade‑II and Rs.5,000 per acre for Grade‑III under issues 1 and 2. The objectors did not press issues 3, 4, 6, 8 and 9 which were therefore held unproved. Under issue No.5, the learned Senior Civil Judge agreed with the Land Acquisition Collector that the fruit trees were rightly treated as crops and, therefore, not allowed 15% compulsory interest on the compensation. This issue was decided against the appellants. Under issue No.7, it was held that 20 Kanals of land being of Grade‑I be valued at Rs.7,000 per acre. The learned Senior Civil Judge allowed compound interest while deciding issue No.10. He dismissed the cross objections being barred by limitation. With the above modification, the award of Land Acquisition Collector was upheld.

2. In support of this appeal it is contended on behalf of the appellants that the acquired land should not have been treated as an agricultural land because it was close to town and as such, should have been treated as residential land. In alternate, it was contended that even if the land was to be treated as agricultural land, then also it should have been assessed at Rs.200 per Marla; secondly, that the fruit trees in the garden on the land in dispute should not have been treated as crop; and thirdly, that the condition of sale of land by Government to the owners should not have been given any weight while assessing market value of the acquired land.

3. We have carefully gone through the record of this case. The land in question formed part of squares Nos. 15, 96, 114, 115 in Chak No. 47/N.B. tehsil Sargodha, district Shahpur (now Sargodha). In support of their case, Chaudhary Zafar Ullah Khan and others objectors placed on file copies of various notifications issued under the Land Acquisition Act but these were not formally tendered in evidence. Chaudhary Zafar Ullah Khan on 26th January, 1974 appeared as witness in support of the reference. He stated that the evidence produced by, them before the Land Acquisition Collector be read as evidence in this case. He further stated that he had planned to convert his land into residential colony. He got prepared a plan demarcating various plots He admitted that he did not sell any plot for residential purposes. He did not claim in his statement that he ever obtained any permission from the Government for converting his land into a residential colony. It may here be observed that the land owned by four appellants was purchased by them from Government under a scheme of Colonization of Government Lands Act. One of the conditions of the said sale was that the land could not be converted into residential area without necessary permission from concerned authorities. The appellants did not place on record of this case any plan to show that this land was meant for residential area. There is also no evidence to support the argument that the acquired land was not agricultural land but a residential area. It is correct that the acquired land is close to Sargodha city but that would not mean that it was not an agricultural land. We are, therefore, of the view that the land acquired under Notification No. M.V.112/13, dated 9th March, 1957 was rightly held to be agricultural land. The appellants did not produce any evidence besides the statement of Chaudhary Zafar Ullah Khan to support their claim that the market value of the acquired land should have been assessed at Rs.200 per Marla. In rebuttal, Government of West Pakistan tendered in evidence average price statement for the period 13th March, 1952 to 15th March, 1953 Exh. P.1. It is based on four mutations only. According to this statement, the average per acre price of land in Chak No. 47/N. B. was Rs.2,163.20. Another average price statement for the period 16th March, 1953 to 15th March, 1954 Exh. P.6 based on five mutations was tendered in evidence according to which per acre price in this Chak was Rs. 2,750.40. We are not prepared to accept these two statements because these pertained to the period about three to five years before the present notification under section 4, dated 9th March, 1957. Secondly, these statements are not based on all the mutations in the chak in question and have been prepared only keeping in view a few selective mutations. Besides these two statements, Government tendered in evidence mutations Exhs. D.2 to D.5 and D.7 to D.11. According to these mutations, the average price per Kanal comes to about Rs. 1,000 i.e. Rs.8,000 per acre. All these mutations were sanctioned between 22nd December, 1952 and 26th February, 1954. These are also between 3 to 5 years before the present notification dated 9th March, 1957 and helpful to appellants than the Government. The Land Acquisition Collector as well as the learned Senior Civil Judge placed reliance on two Mutation Nos. 694 and 701 of Chak No. 47/N.B. According to Mutation No. 694 which was sanctioned in June 1956, land was purchased by Inayat Ali Shah in this Chak at the rate of Rs.5,000 per acre. According to Mutation No. 701, Muhammad son of Saudagar sold one acre of land for Rs.7,112 in August, 1956. In our view. the Land Acquisition Collector as well as the learned Senior Civil Judge rightly placed reliance on these two mutations. It may here be observed that vide notification, dated 13th September, 1955 issued under sections 6 and 7, land measuring 90 Kanals 15 Marlas in Chak No. 47/N.B. tehsil and district Shahpur (:now Sargodha) was acquired by the Government for providing residential accommodation for the staff of Pakistan Air Force at Saraodha .

The Land Acquisition Collector assessed compensation at the rate of Rs.1,750 per acre. The matter was referred to Senior Civil Judge, Sargodha who accepted the reference on 30th September, 1957 and assessed some portion of the acquired land at the rate of Rs.4,000 per acre and the remaining land at the rate of Rs.5,000 per acre. The Province of the Punjab had challenged the said order of the learned Senior Civil Judge in R.F.A. No. 1 of 1958 which was dismissed by a detailed judgment by a Division Bench of this Court. The learned Judges came to the conclusion that the learned Senior Civil Judge had rightly assessed the value of the land in question at Rs.4,000 per acre and Rs.5,000 per acre. This judgment has been reported as Province of Punjab v. Muhammad Fazil and others P L D 1968 Lah. 1360. The impugned judgment was passed by learned Senior Civil Judge, Sargodha on 29th June, 1974 'keeping in view the said judgment by Division Bench of this Court. The reference in the earlier case was decided on 30th September, 1957. The notification under section 4 in the instant case was published on 9th ;March, 1957 i.e. about six months before the judgment by the learned Senior Civil Judge in the earlier case. In our view, the said judgment was a sound basis to assess market value; for the purposes of compensation in the present case. The contention on behalf of the appellants was that the condition of sale of land in their favour by Government should not have been taken in consideration to hold that the land now in dispute was an agricultural land and not, residential property. We are not inclined to agree with the learned counsel on this point because the appellants had purchased this land from Government of the Punjab under colonization of Government Lands Act. The said sale was made in their favour on certain terms and conditions. It the appellants wanted to convert their agricultural land into residential land then they should have sought permission from Government, which admittedly was not done in the instant case. Chaudhary Zafar Ullah Khan appellant stated during the hearing of the reference while appearing as witness in support of his case that he had prepared a plan to demarcate the acquired property for the purposes) of construction of buildings. He admitted that he did not sell any plot for the purposes of construction. The plan allegedly prepared by Chaudhary Zafar Ullah Khan was not produced in evidence. In view Oil the above, we uphold the conclusions of learned Senior Civil Judge under issues 1 and 2 and hold that the acquired land was rightly treated as agricultural land and its market value was correctly assessed in the impugned judgment.

It was vehemently argued by the learned counsel that the Land Acquisition collector though allowed price of the fruit trees present in the gardens of the appellants but treated them as crop and did not allow 15% for compulsory acquisition under the Land acquisition Act. We have considered this contention. A perusal of the award would show that the compensation was assessed for acquisition of land. 15% of the compensation was also allowed on account of compulsory acquisition of land. The fruit trees in gardens were separately assessed. The assessment of market value of fruit trees was based on expert opinion of Extra‑Assistant Director Agriculture. There is no dispute about this assessment. The precise contention on behalf of the appellants was that they should have been allowed 15% compulsory charges on the compensation paid regarding fruit trees as well. We are not inclined to agree with this contention. 15% of the compensation amount was to be paid on account of compulsory acquisition of land and not on the price of the fruit trees which were part of the agricultural land. We are, therefore, of the view that the appellants were rightly not allowed 15% on account of compulsory acquisition.

4. In view of the above discussion, this appeal is dismissed leaving the parties to bear their own costs.

M.Y.H./697/L Appeal dismissed.

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