2017 M L D 908
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
GOVERNMENT OF BALOCHISTAN through Secretary Board of Revenue and 2 others --
-Petitioners
Versus
MUHAMMAD NAJMUDDIN MENGAL and others Respondents
C.M.As. Nos.4 and 7 of 2010, decided on 15th December, 2016.
Land Acquisition Act (I of 1894) ---
----Ss. 4, 6, 18 & 54 ---Appeal ---Acquisition of land---Compensation-- Trees ---Dispute between
both the parties was with regard to number and rate of trees standing on land acquired--- Validity -
--Landowners proved their case to the extent of number of trees but failed to prove their case to
the extent of increase of rate and interest ---Trial Court wrongly came to the conclusion on the
basis of expert's report that land owners were entit led to receive Rs.16199/ - per tree as per expert
report ---Authorities succeeded to prove price of trees and average rate of tree was given to land
owners as per prescribed assessment as given to other land owner, who failed to rebut the
assessment and also failed to produce experts as per direction of the Supreme Court ---Land
owner had received their full and final settlement and nothing remained due to the authorities ---
Appeal was allowed accordingly.
Naseer Ahmed Bangulzai, Additional A.G. for Appellant.
Kamran Murtaza and Najam -ud-Din Mengal for Respondents.
Date of hearing: 17th November, 2016.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Civil Misc. Appeal
No.04 of 2010 filed by the Govt. of Balochistan, Board of Revenue Department and others
(hereinafter referred as, "the appellants") under section 58 of Land Acquisition Act, 1894 and
Civil Misc: Appeal No.07 of 2010 filed by the land owners/objectors (hereinafter referred as the
"respondents") under section 54 of the Land Acquisit ion Act, 1894, against the judgment and
decree dated 23rd November, 2009 (hereinafter referred as "the impugned judgment") passed by
learned Additional District- III Quetta (hereinafter referred as, "the trial Court"), whereby the
reference under section 18 of the Land Acquisition Act, 1894 filed by respondents was partly
allowed and the appellants were directed to make payment of 1061 grapes trees at the rate of
Rs.16,199/ - per tree
2. Facts of the case are that the respondents filed a reference under secti on 18 of Land
Acquisition Act, 1894, stating therein that the Government of Balochistan approved the widening
of the Mastung Qambrani Road Quetta, for which, some additional land of the land owners
concerned was required and for this purpose, the Executive District Officer, Revenue/Collector
prepared an award specifying 1 -its rates of the land. The respondents being the owners of a piece
of the acquired land, measuring about 1 -1/2 Acres, as such, the payment of the same was made to
them through a cheque on 30th November 2002. The respondents and others subsequently filed
an application before the concerned authorities, claiming that their acquired land having certain
superstructure and orchards, etc. therefore, they requested for the compensation of the same as
well. Consequently, a revised survey was carried out wherein it was found that the respondents
had 1061 grape trees. The rate of per tree was fixed as Rs.1300/ - and the respondents were paid
the amount of the entire 1061 trees via cheque on 22nd November 2006. The respondents
received the entire amount under protest, however, raised an objection upon the rate of the tree,
on the basis of which, a reference under section 18 of the Land Acquisition Act was filed before
the District Judge, Quetta, which wa s contested by the appellants. After conclusion of the trial,
the trial Court accepted the claim of the respondents and declared that they are entitled for the
compensation of each tree at the rate of Rs.16199/ - by means of the judgment and decree dated
23rd November 2009,
3. It appears from the record that feeling aggrieved, the Government (hereinafter referred as
"appellants") filed Civil Misc: Appeal No.04 of 2010, whereas the land owners (hereinafter
referred as "respondents") filed Civil Misc: Appeal N o.07 of 2010, hence after hearing the
parties this Court, vide common judgment dated 20th December 2012 allowed the Civil Misc:
Appeal No.04/2010 filed by the appellants (Govt. of Balochistan and others) was allowed, while
the appeal filed by the respondents/land owners was dismissed and the judgment dated 23rd
September 2009 passed by the Additional District Judge -III Quetta was set -aside by holding that
since the respondents have already received the entire amount of 1061 trees @ Rs.1300/ - through
cheque well within time, therefore, there was no outstanding against the appellants.
4. Subsequently, the respondents filed Civil Appeal Nos.1- Q and 2- Q of 2013 before the Hon'ble
Supreme Court of Pakistan and the Hon'ble Supreme Court vide order dated 21st Novem ber
2014 was pleased to allow the appeals by remanding the case to this Court for decision afresh
after examining the expert as a Court witness. Hence, in compliance with the directions of
Hon'ble Supreme Court CW -1 Muhammad Riaz Khan was examined as Court witness in respect
of letter dated 12th April 2008 (Ex.AW/2) and thereafter arguments were heard.
5. Learned Addl: A.G. contended that the Government of Balochistan after proper evaluation and
assessment fixed the rates of each and every tree i.e. Rs. 130 0/- which was based on market
value and prevailing rate of area; that the respondents did not produce any evidence to prove
their contentions; that the respondents received their full and final payment and they are not
entitled to escalate the rates; that the judgment passed by the trial Court sufferers from mis -
reading, non- reading and mis -appreciation of evidence; that the impugned judgment suffers from
material illegality, irregularity and infirmity and not sustainable and liable to be set aside.
6. Conversely, the learned counsel for the respondents vehemently opposed the arguments so
advanced by the learned Addl; A.G. and further contended that the witnesses produced by the
respondents have categorically established that the value of the tree is much more than the value
assessed by the Government of Balochistan and further contended that the respondents have
produced the evidence and documents especially Ex.P/A -2 which supports and proves the
contentions of the learned counsel for the respondents; that t he expert report was endorsed and
acknowledged by the CW -1, who recorded his statement before this Court in compliance of
order of Hon'ble Supreme Court of Pakistan dated 21.11.2014; that the trial Court had rightly
relied upon the expert's report and acce pted the rates of trees, but did not, award the 15% interest.
Hence, learned counsel for the respondents through their appeal requested for amount of interest;
that the respondents are entitled for the amount of interest at the rate of 15 %.
7. We have hea rd the counsel for the parties and perused the record with their valuable
assistance. To prove its case respondents produced two witnesses along with certain documents
and strongly relied upon the Ex.A/W -2 and the said document was acknowledged by CW -1
Muhammad Riaz Khan who was examined by this Court. The back ground of the said document
is that the respondent No.2 submitted an application on 3rd March 2008 before the Secretary
Government of Balochistan, Agriculture and Cooperative Department Quetta for as sessment of
rates of trees who endorsed it to the Director General Agriculture and Research, Agriculture
Research Institute. The Director General, submitted a report to the Secretary on 15 March 2008
which was produced before the trial Court as evidence.
8. Keeping in view of importance of aforesaid letter it would be appropriate to reproduced it as
under: --
"To
The Secretary,
Government of Balochistan
Agriculture and Cooperative Department Quetta.
Subject : APPLICATION FOR ISSUANCE OF ASSESSMENT CERTIFICATION
REGARDING INCOME OF GRAPES, APPLE AND PEACH TREES.
Reference to application of Muhammad Salahuddin Mengal dated 3rd March, 2008
addressed to our goof self and endorsed to the undersigned on dated 14th March, 2008.
The Expert opinion of Hortic ulture Wing Director Agriculture Research (Fruit) Director
Agriculture Research (Agriculture Business) from Agriculture Research Baluchistan on
the subject matter:-
"The information provided in his application is lacking in various aspect such as, number
and variety of the vineyard, year of plantation, year of fruit bearing, exact location of the
vineyard and management practices like irrigation, fertilizer application, plant protection
measures etc. the experts agreed on the following assessment which is calculated on
average crop condition, yield price and other aspects as well based on statistical and
research information of Quetta.
The average number of plants/vineyard per acre ranges from 352- 375. The cost of
production per year per acre has been groupe d as:--
Group No . Cost of Production
1-5 Years Rs. 6524
6-10 years Rs.121955
11-20 years Rs.15319
21-30 Years Rs.16199
31-50 Years Rs. 15988 51 and above Rs. 21964
The average market rate of grapes for the years 1992 -93 to 1994- 95 was Rs. 14.35 per
KG. **
Whereas the rates for the year 2002 -03 & 2006- 07 were Rs.25. 17 & Rs. 37.83 KG
respectively. * * *
The Average yield of grapes per vine for the years 2002- 03 and 2006 -07 in Quetta valley
was 5.77 KG & 5.20 KG respectively. ***
According to Agriculture Sta tistic of Balochistan and experts opinion, the aforesaid
vineyard came under the group of (6- 10 Years) i.e. the remaining period is 50 years, the
production of grapes per vine on average is 5- 6 KG. The average whole sale price is
Rs.25.15 to 37.831 KG. So the income of one grape vine for 50 years approximately
calculated as under:
Average yield X Average Price C Years = Rs.11349/ - (6 Kg/Vine) (Rs. 37.83/ -) (50)
And the cost of production for 50 years per vine per annum become Rs.46/vine X years
(50) =Rs.2300/ - & net income would be =Rs.9049/ -
Source: -
* Investigation Appraisal Analysis of grapes production in Pishin district of Balochistan
(Thesis) by Azmatullah Taran Department of Agriculture Economics Faculty of
Agriculture Social Sciences Sindh Agricultur e University Tandojam 2006.
** Ministry of Food, Agriculture & Live Stock, Government of Pakistan.
***Agriculture Statistics Balochistan 2002- 03 & 2006- 07.
****Agriculture Statistics Balochistan 2002- 03 & 2006- 07
XXX SD XXX
DIRECTOR GENERAL AGRICULTURE RESEARCH
AGRICULTURE RESEARCH INSTITUTE
SARIAB QUE7TA.
9. Out of pleading of the parties learned trial Court framed as many as four issues: --
Issue No.1 "Whether at the time of survey by the QDA in the year 2001, the applicants owned
following trees:- -
i. 768 Grapes Trees of applicant No.1
ii. 293 Grapes Trees of applicant No.2
iii. 07 Apple Trees of applicant No.1
iv. 13 Peach Trees of applicant No.2
10. This issue was framed to determine the actual number of trees installed upon the lands of the
respondents. Perusal of the record shows that during the revised assessment it was held that the
total numbers of trees over the land of the respondents were 1061. The said figure has not been
disputed by the parties. To the contrary, in the report prepared in the year 2008, the experts held
that the average number of trees per acre ranges from 352 to 375 and the annual income of the
production per acre has been assessed keeping in view the different ages of trees. Though at the
time of assessment of experts there was no tree over the land, however, the expert report based
on general assessment, but since the Government itself assessed and accepted the number of
trees therefore, the facts admitted did not requires to be proved. The trial Court rightly decided
the issue by declaring that the respondents had 1061 trees.
11. The main dispute between the par ties is that of issue. Nos. 2 and 3 which are reproduced as
under: -
(ii) Whether the respondents had not properly determined the life time of
abovementioned trees and then did not assess correct rate of trees belonged to the
applicants?
(iii) Whether the r espondents had not properly determined the lifetime of
abovementioned trees and then did not assess correct rate of trees belonged to the
applicants?
12. Learned trial Court while deciding the above issues specifically relied upon the report of
expert's an d held that value of per tree comes to Rs.16199/ - Actually, the report did not reflect
the income of each tree, rather the experts assessed the annual average income of all the trees
over the one acre as Rs.16199/ - and the said report was prepared in 2008. It has clearly been
mentioned that at the time of the assessment there were no trees over the acquired land of the
respondents. Therefore, the experts did not mention that there were 1061 trees bearing fruits. To
prove the above issue respondents produced two witnesses namely AW -1 Muhammad Umer and
AW-2 Syed Habib Ullah Shah and the power of attorney which supported the case of
respondents while experts reports was submitted by the appellant.
13. Since the numbers of trees have not been disputed by the par ties to be 1061 and the rates was
given by two experts and the experts also belongs to the appellant's department, as such learned
trial Court on the basis of expert report fixed the rate per tree as Rs. 16199/ - contrary to fact that
the expert's did not a ppear before the trial Court, while the report prepared in 2008 when no tree
was over the land. The land was taken over in 2001 and wrongly decided the issue in affirmative,
the trial Court did not consider the fact that the value of production of the tree s was assessed by
the experts in 2008, whereas the land of respondents was acquired in the year 2001, naturally the
income of the trees in 2001 was much less than income of the tree in 2008. The expert report was
wrongly interpreted by the trial Court, eve n not admissible because of the reason that the experts
were not appeared before the court.
14. To diverting to the importance of the expert report. This is the case of appellant that the
Government of Balochistan acquired land for widening the Quetta Mast ung road from the
owners of the land and also required 1- 1/2 acre from the respondents in 2001. After fulfillment
of the land acquisition formalities under, Land Acquisition Act, 1894 the collector acquired the
land and made payment to the owners. However, the respondents received the payment under
protest and raised objection and filed an application before the concerned authorities claiming
that their acquired land having certain superstructure and orchards etc. However after assessing
the same the Govern ment approved, a rate as Rs.1300/ - per tree despite receiving payment the
respondents disagreed and filed reference before the referee Court and after taking cognizance,
the referee Court framed issues and recorded evidence and on the basis of rate assessm ent by
experts, who also belongs to the appellant's Agriculture Department decreed the case of the
respondents vide Judgment 23rd September 2009, being aggrieved and dissatisfied from
aforesaid judgment both the parties filed the instant Miscellaneous Appe als before this Court and
after hearing the parties, the appeal of appellant i.e. Government of Balochistan was allowed and
the Civil Miscellaneous Appeal of the respondents was dismissed vide Judgment dated 20
December 2012 passed by this Court which was assailed before the Hon'ble Supreme Court of
Pakistan by the respondents under Civil Appeal Nos. 1- Q and 2- Q of 2013 the Hon'ble Supreme
Court vide order dated 21st November, 2014 was pleased to allow the appeals by remanding the
case to this Court for dec ision afresh after examining the expert as a Court witness relevant
portion of the aforesaid order reproduced as under:
"We may not agree with the finding of the learned Division Bench of the High Court
because it does not appear to have been based on cor rect appraisal of the material
available on the record. How could the number of trees be looked askance at when it was
not disputed by the party on the other end? How could report of the expert be taken into
account without examining him when he was neithe r an expert in terms of section 510 of
Cr. P. C. nor the proceedings before the learned referee Court were of criminal nature.
How could opinion of the Collector be preferred by the learned Division Bench of the
High Court when he being a lay man does not know much about grapes trees their age,
their fruit bearing capacity and life expectancy. Examination of the expert in any case is
imperative when neither the Referee Court nor the Division Bench of the High Court
wielded any expertise in these matters. A decision without probing into the nature of the
dispute would rather thwart than advance the cause of justice. We therefore, have no
option but to remand the case to the High Court for decision afresh after examining the
expert as a Court witness. These ap peals are thus allowed. Impugned judgments are set
aside and the case is sent back to the High Court for decision afresh as hinted above. As it
is an old matter. It be decided before winter vacation by a bench other than the one
deciding it earlier."
15. I n compliance with the directions of Hon'ble Supreme Court the respondents were given
several opportunities to indicate the experts to be called as Court witness, but the respondents
failed to do so and however, CW -1 Muhammad Riaz Khan was examined as Court witness after
lapse of one year i.e. on 10.06.2015 iq respect of letter dated 12m April 2008 (Ex.AW/2) who
not only acknowledged his letter based on expert opinion and also confirms the contents of letter
Ext.AW/2.
16. Keeping in view the statement of CW -1 neither he is an expert nor the expert who given their
opinion in the Ext.AW/2 appeared as witness, as such, we are of the firm opinion that the
respondents have proved their case to the extent of numbers of Trees i.e. 1061 but failed to prove
their case to the extent of increase of rate and interest and the learned trial Court had wrongly
comes to the conclusion on the basis of expert's report that the respondents are entitle to received
Rs.16199/ - per tree as per expert report. The appellant in CMA.04/2010 i.e. Government of
Balochistan has succeeded to prove its case with cogent reason the price of trees and average
rates of tree has been given to the respondents as per prescribed assessment as given to the other
land lords as such the respondents are f ailed to rebut the assessment, and also failed to produce
the experts as per the direction of Hon'ble Supreme Court of Pakistan, on the other hand they had
received their full and final settlement and nothing remains due on appellant (Government of
Balochi stan). Accordingly, the Civil Miscellaneous Applications No. 04/2010 is allowed and
Civil Miscellaneous Application No.07/2010 is hereby dismissed and the impugned judgment
dated 23rd September is set aside. The objection/reference submitted by the respondents is
hereby dismissed with no order as to cost.
MH/4/Bal Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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