2021 Y L R 795
[Balochistan]
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
QUETTA DEVELOPMENT AUTHORITY through Director General, Q.D.A. ---
Petitioner
Versus
SAJJAD KHAN and 10 others ---Respondents
Regular First Appeal No. 77 of 1998, decided on 16th October, 2019*.
Land Acquisition Act (I of 1894) --
----S. 28 -A---Suit for recovery of compensation and compulsory acquisition charges ---
Principles --- Plaintiffs/ respondents filed suit for recovery of compensation and 15%
Compulsory Acquis ition Charges ---Trial Court decreed the suit in favour of plaintiffs/
respondents --- Validity --- Plaintiffs/ respondents were entitled for 15% additional
compensation under S.28- A of Land Acquisition Act, 1894, till payment of compensation
was made---Outst anding compensation was paid on 15- 2-2001 whereas award was passed on
29-3-1993--- Plaintiffs/respondents were entitled for 15% Compulsory Acquisition Charges
from 29 -3-1993 to 15 -2-2001 on outstanding amount ---High Court modified judgment and
decree passed by Trial Court accordingly---Appeal was dismissed in circumstances.
Shai Haq Baloch, A.A.G. along with Miss Rubina Shaheen for Appellant.
Hadi Shakeel Ahmed for Respondents.
Date of hearing: 15th July, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---This app eal is directed against the judgment and
decree dated 17th September, 1998 (impugned judgment) passed by learned Senior Civil
Judge (trial court), Quetta in Civil Suit No. 10/1996, whereby the suit filed by the predecessor of private respondents/ plaintiff s for recovery of Rs.4,20,69,223/ - along with
15% till realization of the said amount was decreed in their favour.
2. Facts of the case in brief are that through award dated 29th March 1993 given by the
then Assistant Commissioner/ SDM and Collector Saddar Sub- division Quetta
(defendant/respondent), whereby under the Land Acquisition Act 1894, the land of the
respondents/plaintiffs measuring 7483880.25 square feet situated at Mohal Khushkaba,
Tappa Sraghudgi, Mouza Sraghudgi, Tehsil and District Quetta ("di sputed land") was
acquired for QDA (appellant/defendant) for establishment of Sraghudgi Housing Scheme.
The amount of Rs.4,08,61,986/16 was to be paid to the respondents/plaintiffs as compensation with regard to the disputed land. After the award the disputed land was mutated in the name of appellant/defendant No.2 who undertook to pay the remaining balance amount of Rs.2,48,64,787/51 within a period of six months. After expiring of said
period the balance amount was not paid to the respondents/plaintiffs, as such, the
respondents' counsel issued notice to the appellant/defendant No.2 for payment of the
balance amount but to no avail. In this regard respondents/plaintiffs also requested for clearance of outstanding liability along with 15% per annum, as cont emplated under Section
28 of the Land Acquisition Act 1894. Thereafter the respondents/plaintiffs filed the aforesaid suit with the following prayer:
"It is, therefore most humbly and respectfully prayed that a decree may kindly be passed in favour of the plaintiff' and against the defendants jointly as well as,
severally for Rs.420469223/ - along with 15 percent as additional compensation till
the payment is made. The cost of the suit may also be awarded."
3. Appellant/defendant No.2 in his written stateme nt contested the claim of
respondents/plaintiffs by raising objections that; (i) the suit is barred by time, as the Award
has been made on 29th March, 1993 and the suit has been filed in the months of March,
1996; (ii) suit is bad for non- joinder of necess ary parties; (iii) no cause of action accrued to
the plaintiff; (iv) the court has no jurisdiction to adjudicate upon the matter; (v) plaintiff has deceived the replying defendant by concealment of fact that the disputed land is situated in danger zone and not fit for housing scheme; (vi) possession of the disputed land has not been
delivered to the replying defendant, as such; plaintiff is not entitled for any claim sought in the plaint; rather replying defendant is entitled for refund of amount paid to the plaintiff (vii)
contents of suit are in conflict with each other. On merits also, claim of respondents/plaintiffs was refuted.
Out of pleadings of parties, on 19th June, 1996, the trial court framed the following
issues:
"1. Whether suit is barred by time?
2. Whether the suit is bad for non joinder of necessary parties?
3. Whether the title and prayer of the suit is conflicting with the averment made in para No.4 of the suit?
4. Whether this Hon'ble Court has got no jurisdiction to proceed with the mat ter?
5. Whether the plaintiff is entitled to the relief claimed for?
6. Relief?"
Record reflects that on 13th October, 1996 following additional issues were framed:
"1. Whether the physical possession of the suit property was physically handed over to the defendant No.2? "
2. Whether the land was obtained for Saraghurgi Housing Scheme and the Q.D.A
Officials had conducted proper demarcation, identification of the boundaries of the
acquired land i.e. suit property?"
To substantiate their claim, private respondents/plaintiffs produced PW -1 Muhammad
Ayub, PW -2 Fazal Rehman, PW- 3 Abdul Majeed, PW -4 Shaukat Ali, PW -5 Haji Noor
Muhammad and plaintiff Abdul Manan also got recorded his own statement. In rebuttal, defendants produced DW -1 Muhammad Jameel and DW -2 Fazal Muhammad.
On conclusion of trial and after appraisal of evidence on record, the learned trial court
i.e. Senior Civil Judge -I, Quetta, vide judgment and decree 17th September, 1998, decreed
the suit of respondents -plaintiffs as prayed for in the plaint. Against aforementioned
judgment and decree, appellant -defendant filed appeal under section 96, C.P.C. before this
court. After hearing arguments of the learned counsel for the parties this court vide judgment dated 9th October, 2006 disposed of the appeal. Feeling aggrieved the appellant/defendant
filed Civil Appeal No. 2331 -2006 before the Hon'ble Supreme Court of Pakistan and the
Hon'ble Supreme Court remanded the case to this court for disposal on merits.
4. We have heard learned counsel f or the parties and have also gone through the
available record with their able assistance. As far as the first issue about the limitation is concerned, the award was passed on 29th March 1993 out of total compensation amount of Rs.1,58,97,198/ - was to be p aid, however the appellant/ defendant No.2 had undertaken to
pay the remaining outstanding balance amount of Rs.2,48,64,787/ - within six months. After
expiry of said period the balance was not paid to the plaintiffs/respondents and the plaintiffs filed the instant suit in the month of March 1996. The cause of action accrued to the
plaintiffs/ respondents when the appellant/defendant No.2 did not pay the outstanding amount. Under the Limitation Act, 1908 a suit for recovery can be filed by a person within a
period of three years, whereas the instant suit has been filed in the month of March 1996 as stated earlier, therefore the trial court rightly decided the issue No.1 in negative.
5. Now the question for determination of the appeal is that whether the physi cal
possession of the suit property was handed over to defendant No.2 after passing of the award. The appellant/defendant No.2 raised the objection that possession of the disputed land has not been delivered to the requiring defendant, therefore plaintiff's are not entitled for any claim sought in the plaint. In support of their case the plaintiffs/respondents produced PW -1
Muhammad Ayub, who deposed that possession of the disputed land was handed over to
QDA and inauguration of the Scheme was carried out by the then Chief Minister. Statement
of PW -1 is further corroborated with statement of PW -4 Shaukat Ali, who deposed that when
Scheme of QDA was started, QDA authorities affixed a board on the site in respect of the scheme and further stated that the schem e was inaugurated by the then Chief Minister. The
most important witness is PW -5 Haji Noor Muhammad the then Minister of QDA. He
deposed before the court that from 1990 to 1993 he was minister of QDA and the said scheme was started during his tenure as min ister and the then Chief Minister Taj Muhammad
Jamali inaugurated the said scheme. He further stated that he along with other officials of QDA time and again went to the site and took possession of the said property.
6. The plaintiffs/respondents also produced PW- 2 Fazl -ur-Rehman, who produced the
mutation entries of the said property as Ex.P/1 according to which, said property was entered
from the name of plaintiffs/respondents to the name of appellant/defendant No.2 (QDA) besides transferring the mutation entries in the name of QDA the defendant No.1 also filed
written statement and admitted the claim of the plaintiffs/respondents in respect of handing over possession of the suit property to QDA and stated while giving reply of para No.3 of the
plaint stat ed as under:
"Para 3 on page 13 of the award, announced on 29- 3-93, is quite lucid regarding the
handing over of the possession of the acquired land. Furthermore, the then
representatives of the QDA i.e. the Land Management Officer, the Special Magistrate
Q.D.A and the Director, Town Planning QDA were present at the time of the announcement of the Award. None of them had then, raised any objection on the issue of possession of the land, as they had already taken- over the physical possession of
the subject land by that time. Moreover, with the help of the subordinate Revenue
Staff, these Q.D.A officials had already conducted proper demarcation / identification of the boundaries of the acquired land, for the completion of their topographic survey / preliminar y work of land leveling and preparation of maps showing location of
every plot in saraghurgi Housing scheme.
Interestingly, the Saraghurgi Housing Scheme was inaugurated by the then Chief Minister of Balochistan in May, 1993 upon the invitation of the Q.D .A. This further
corroborated the fact that Q.D.A then had the undisputed possession of the subject land. It is noteworthy that Q.D.A had already sold hundreds of plots of the said Housing Scheme through scheduled Banks. This further abnegates their claim that
they were not in possession of the subject land. Contrariwise, this poise of Q.D.A would surely send shivers down the spine of all those who invested their money in the
purchase of these plots.
It was pledged by Q.D.A that the remaining amount of com pensation along with the
interest, would be deposited in six months from the date of announcement of the award i.e. by 29- 9-1993 (Award was announced on 29.3.1993). Section 34 of the
Land Acquisition Act, 1894 (I of 1894) is noteworthy, whereby the landowners whose land has been acquired, qualify for compensation on the dated of announcement of the FINAL AWARD. Should there be any delay in the payment of compensation, the defunct land owners become further eligible for added compensation at the rate of 8% per annum. 4% was included in the FINAL AWARD as the Q.D.A itself, had
requested that the payments would be rescheduled by 29.9.1993, i.e. six months after the announcement of the final award.
Through this letter, you are once again requested to kindly approach the Q.D.A to decide the matter forthwith, at once remit the balance amount of compensation along with the interest which totals to Rs. 2,60,00,499/76. Any further delay in this regard may cause undesired resentment/ restlessness among the affectees w ho may resort to
litigation. In the latter case, additional compensation may increase upto 15% per annum instead of 8% per annum in view of the recent amendment made in the Land Acquisition Act 1894, by the Government of Balochistan, vide Notification No. Legis -III(13)/85 dated 6.11.1985. This would cause a heavy fiscal loss to the
government exchequer and Q.D.A. alone would be responsible for this".
Thereafter on receipt of the notices from the counsel of the plaintiff as well as hearing
the point of view of the representative of QDA, the respondent No. 1 referred the
matter to the Deputy Commissioner, Quetta vide letter No. 32/ I/92- Acq: (S), dated
7th December, 1995 (Copy enclosed at Annexure -F).
Para- 6. The plaintiff is entitled for payment of balance amount of compensation
along with interest at the rate of 8% per annum as per agreed terms and conditions of award till final payment of amount of compensation."
In view of the above it is clear that physical possession of the land was given to
appellant /defendant No.2 (QDA).
7. Now the question arises here that whether the balance amount i.e. Rs.2,48,64,787/ -
was paid to the respondents/plaintiffs.
8. The plaintiffs/respondents admitted in their plaint and stated that the amount of
Rs.4861986/ - was awarded as compensation to be paid to the respondents/ plaintiffs with
regard to disputed land and it is also admitted that out of total compensation amount Rs.1,58,97,198/ - was paid and other remaining balance amount of Rs.24864787/ - along with
15% compensation were outstanding against appellant/defendant No.2. On 8.3.2019 when the case was fixed for arguments the learned AAG produced a detailed report of the Deputy Commissioner Quetta, which is reproduced here under:
" The Collector/Deput y Commis -sioner, Quetta in compliance to order dated
30.08.2018 respectfully submits his report as under:
I. That land of predecessor of respondents Nos.1 to 10 namely Dost Muhammad was
acquired through Award bearing No. 310/1 /92- Acq(A) dated 29th March, 1993 for
the total land measuring 252*- 1-04 Acres (i.e. 109890999sq. ft.) against the total
compensation of Rs.6,00,00,480.57. Entry of Dost Muhammad (predecessor of respondents Nos.1 to 10) and his other family appeared in Schedule of Award, detail whereof is as under:
S.No. S.No. of Award Name of landowner
1. 15 Ali Muhammad son of Haji Abdul Manan
2. 16 Dost Muhammad son of Haji Abdul
Manan
3. 17 Ghulam Haideer son of Wazir Khan
4. 18 Haji Abdul Manan son of Wazir
Muhammad
Area Acquired Awarded Amount of Compensation
198198 Sft. Rs.10,82,161/ -08
198198 Sft. Rs.10,82,161/08
521631 Rs.28,48,105/26
748380.25 Rs.4,08,61,986/16
2. The payment of awarded land compensation to the above landowners has been made, as
follows:
S. No. Name of landowner Cheque No. and date
1. Ali Muhammad son of Abdul
Manan No.23099901 Dt.31.03.1993
2. Dost Muhammad son of Haji
Abdul Manan No.23099902, Dt 31.03.1993
3. Ghulam Haideer son of Wazir
Khan No.23099903 Dt.31.03.1993
4. Haji Abdul Manan son of
Wazir Muhammad No.2310001 Dt.10.05.1993
No.2310002 Dt.10.05.1993
No.2310003 Dt.10.05.1993
Total………..
Amount Balance
Rs.10,82,161/08 Nil
Rs. 10,82,161/08 Nil
Rs.28,48,105/26 Nil
Rs.9,97,198/25 Rs.1,00,00,000/ - Rs .50
00,000/ - ______________ Rs.
1,59,97,198/25 ________ Rs.2,48,64,787/91
Copy of payment register is annexed as Annex- A.
2. That Haji Abdul Manan son of Wazir Muhammad died on 15.11.1999 and his legal heirs executed Power of Attorney in respect of all landed properties in favour of Dost Muhammad son of Haji Abdul Manan duly registered with Sub- Registrar, Quetta on
15.03.2000 (Annex- B).
3. The department concerned i.e. Appellant has already deposited following amounts in respect of acquisition: -
(i) Ch. No.
695187, dt.
31.05.1992 Rs.
50,00,000/ -
(ii) Ch. No.
40140713, dt.
09.03.1993 Rs.
1,05,00,000/ -
(iii) Ch. No.
527454, dt.
09.03.1993 Rs.
1,95,00,000/ -
Total
deposited Rs.
3,50,00,000/ -
The Award
was passed Rs.
6,00,00,480/ -
for
Outstanding
Balance
against deptt. Rs.
2,50,00,480/ -
1. Since balance amount of Rs. 2,50,00,480/ - against depart -ment (Appellant) was
received vide cheque No. 50354505, dated 09.01.2001 (i.e. after the death of
landowner), therefore, on the basis of registered Power of Attorney the remaining outstand- ing amount of Rs. 2,48,64,787.91 was also paid to Mr. Dost M uhammad
vide cheque No. 283401, dated 15.02.001 (Annex- A) and no payment of awarded land
compensation left outstanding against Collector /Deputy Commissioner, Quetta, however, if there is any claim other than the awarded amount, the same may be taken up wi th the department concerned i.e. Appellant.
Report is submitted accordingly."
According to the above report the balance amount is Rs.2,48,64,787.91/ - was paid to
one Dost Muhammad attorney of the plaintiffs/respondents vide cheque No. 283401 dated 15.02.2001.
9. Another question arises here that whether the plaintiffs/respondents are entitled for
compensation of 15% or otherwise. While passing award dated 29th March 1993 the then Collector held as under:
"Keeping in view the above mentioned facts of the case, long and lengthy discussions detailed arguments, location and size of the land being acquired it is considered fair to offer compensation at the rate of Rs. 4775 per Sq foot i.e. Rs. 206910/ - per acre. In
addition to the above price of land, the un -relexable 15% compulsory acquisition
charges as admissible under subsec- tion (2) of section 23 of the Land Acquisition Act,
1894 (I of 1894) are in addition to the said amount of compensation.
As such in view of the above I, Muhammad Jalal, as collec tor Saddar Sub- Division,
Quetta do hereby pass an award giving compensation of the land amounting to Rs.
6,00,00,480/54 (Rupees Sixty Million Four hundred Eighty and paisas Fifty Four only) for 10989099 sq foot of land calculated at the rate of Rs. 5/46 pe r sq feet
inclusive 15% unavoidable compulsory acquisition charges in favour of the affected land owners. Details in respect of ownership of the land acquired and compensation awarded in favour of each land owner are given in the schedule annexed herewith.
With the announcement of this award on this day of 29th March, 1993, the undersigned declare the Quetta Development Authority as sole owner of the above mentioned land and the area already marked by the QDA is declared to be no more in possession of its owners and its possession is from this day of announcement of award
with the QDA. Moreover, the persons deprived of their land are entitled of getting of their compensation amount from this day of announcement of award.
Brief detail of the account of the total amount awarded in favour of the affected land
owners, less amount already deposited / received and the amount out -standing against
QDA is as under: -
1. Total compensation amount inclusive 15% compulsory acquisition charges of the area
measuring 10989 099 sq feet is……..... Rs. 6,00,00.480/54.
2. The less amount already deposited / received from the QDA is………..Rs.
3,50,00,000/ -
3. Balance amount of the Zamindars out -standing against QDA……… Rs.
2,50,00,480/54.
Contd………………2/14.
The section 34 of the Land Acquisition Act, 1894 (I of 1894 clarify as under, entitlement of the person whose amount of compensation is not paid on the due date of payment: --
"SECTION 34 PAYMENT OF INTEREST. -When the amount of such compensation
is not paid or deposited on or bef ore taking possession of the land, the Collector shall
pay the amount awarded with interest thereon at the rate of six per centum per annum from the time of so taking possession until it shall have been so paid or deposited.
Section 34 of the said Act, wa s later on amended through an Act, called the Land
Acquisition (Balochistan Amendment) Act, 1959 (WP. Act III of 1959), as under: - "In
section 34, for the words "interest thereon at the rate of six per centum", the words "compound interest at the rate of e ight per centum" shall be constituted ; and for the
full-stop appearing at the end a colon shall to substituted and the following proviso be
added thereafter, namely: -
"Provided that any waiver of the above right by the land owner shall be void and he shall be entitled to the said interest notwithstanding any agreement to the contrary."
Due to the above mentioned provisions of law, the owners of the balanced compensation amount of Rs. 2,50,00,480/54 are entitled of interest at the rate of .8 per centum fr om this due date of payment of compensation amount till the release of the
balanced compensation amount to the Collector Saddar Sub- Division, Quetta for
payment to the respective owners."
In view of the above award and provision of section 28- A of the Land Acquisition
Act, the plaintiffs/ respondents are entitled for 15% as additional compensation till payment
was made.
As stated earlier the outstanding amount i.e. Rs.24867787/ - was paid on 15.02.2001
and the ward was passed on 29th March 1993. Therefore, in view of above the respondents
/plaintiffs are entitled for 15% compensation from 29th March 1993 to 19.02.2001 on the
outstanding amount i.e. Rs.24867787/ -.
With the above modification of the judgment passed by the trial court the appeal is
hereby dismissed.
MH/132/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,
let us know.