' ABDUR RAHMAN FARUQ PIRZADA, J.---This land acquisition civil appeal is directed against impugned order dated 5-6-2006, passed by learned Vth-Additional District Judge, Shikarpur, on a reference under section 18 of Land Acquisition Act 1894 made by respondent No,1, thereby awarding him compensation of Rs,2,50,000 per acre (fixing market value), plus 15% compensation under section 23(2), plus compensation under section 28-A of the Land Acquisition Act. The appellants have prayed for setting aside the impugned order and fixing the market value of subject land at Rs,100,000 per acre.
2. As briefly started, the facts of the case are that by gazette notification, dated 30-11-2000, under section 4 of Land Acquisition Act the lands bearing Survey Nos. 104, 106, 107, 108 and 110 of deh Garhi Yasin measuring (2-20) acres owned by respondent No, 1 were proposed to be acquired for laying white oil pipe line by PARCO, but subsequently land measuring (1-04) acre was acquired through the gazette notification under section 6 of Land Acquisition Act, dated 22-1-2001. The land acquisition officer gave an award fixing Rs,1,00,000 per care as the market value. The respondent being dissatisfied with the award, moved an application with the land acquisition officer for making a reference to the District Court under section 18 of the Land Acquisition Act, for determining the value of the acquired land. Subsequently the matter was contested by both the parties before the learned Vth-Additional District Judge, Shikarpur.
3. From the pleading of the parties, learned Vth-Additional District Judge, Shikarpur framed the following issues:-- ' Issue No,l. Whether the landed property acquired by the Land Acquisition Officer of the applicant comes in the "A" category being fertile land and as such its value of Rs, 2,50,000 per acre as assessed by the Mukhtiarkar Garhi Yasin through its letter No, 324, dated 28-5-2001, is legal, proper, accurate and does not require to be interfered or re-assessed?
' Issue No,2. Whether the Land Acquisition Officer is legally bound to compensate the applicant of area 100 ghuntas initially acquired by him as per notification No, RB/9033, under section. 4 of Land Acquisition Act, 1894, published in Gazette dated 30-11- 2000, of Govt. Of Sindh?
' Issue No,3. Whether the Land Acquisition Officer is too legally bound to make the payment of interest/profit on the compensation of the landed property, till amount is fully paid to the applicant as provided in section 34 of Land Acquisition Act, 1894?
' Issue No,4. Whether the Land Acquisition Officer is legally bound to pay the compensation of the landed property according to the Land Acquisition Act, 1894?
' Issue No,5. What should order be?
4 Respondent No,1 Yasin Khan examined the witnesses viz. P.W.1 Sirajuddin the Clerk, Taluka Office, Garhi Yasin who produced a letter dated 24-5-2001 of Mukhtiarkar Garhi Yasin addressed to Assistant Commissioner Garhi Yasin, under which he reported the rate of "A" category of land of deh Garhi Yasin as Rs,2,50,000. P.W.2 Khadim Hussain Mukhtiarkar the author of said letter, P.W.3 Shamasuddin Tapedar and P.W.-4 Nooruddin the Clerk who produced a letter dated 17-5-1995 of the then Mukhtiarkar Garhi Yasin addressed to the Deputy Commissioner Shikarpur, wherein he reported the rate of land in deh Garhi Yasin to be Rs,100,000 per acre of the cultivated land.
Respondent No,1 Yasin Khan also examined himself as witness.
5. The appellants examined DW-1 Abdul Rahman the Mukhtiarkar who produced his letter, D.W.2 Ayoub Mari the Land Acquisition Officer who produced the notification under section 4, notice under section 6, notice under section 9; (3 and 10) of the Land Acquisition Act, statement of Khatedars and the original copy of challan.
6. After proceeding which the case, the impugned order was passed by learned Vth-Additional District Judge, Shikarpur.
7. Mr. Muhammad Saleem Jessar learned counsel for appellant has contended that DW-1 Abdul Rehman, being the Mukhtiarkar of concerned deh had clearly stated in his deposition before the trial Court that the value of the land in deh Garhi Yasin was rated at Rs,10,00,000 and such report issued by him was produced in the Court. In further support of this contention, D.W.2 Ayoub Mari the Land Acquisition Officer was also examined, who corroborated the evidence as given forth by D.W.
Abdul Rehman Mukhtiarkar. He has submitted that the award passed by the land acquisition officer was in consonance with the market value, and the same was not to be disturbed by the learned VthAdditional District Judge, Shikarpur. With regard to the earlier report made by another Mukhtiarkar viz. P.W.-2 Khadim Hussain who had given the value of land as Rs,2,50,000 for category "A", learned counsel for appellants has argued that on the basis of controversial facts/report the amount of award could not be enhanced.
8. Mr. Yasin Khan respondent No,1, alongwith his counsel Messrs Asif Ali Abdul Razzak Soomro and Gul Hassan Solangi, has contended that the acquired land was situated near the bypass of Indus highway and within Garhi Yasin town. There was a palm-date trees garden in Survey No,
108. A tube-well was also installed in Survey No, 110 and some fruit bearing trees of lemon and berries were also planted. He has stated that Garhi Yasin town was also situated in deh Garhi Yasin.
According to him the land acquired for PARCO fell within "A" category. He has pointed out that Mukhtiarkar Khadim Hussain had submitted the report, as long back as on 28-5-2001 giving the value of the land as Rs,2,50,000 per acre, being in category "A". The same contention was fully corroborated by P.W.3 Shamasuddin the concerned Tapedar. He has also pointed out to the letter No,323, dated 17-5-1995 by Assistant Commissioner, which was produced in evidence through P.W.4 Nooruddin, to the effect that the value of said land was shown to be Rs,100,000 as long back as in year 1995. He has argued that the land which was valued at Rs,1,00,000 in year 1995; logically and factually speaking, keeping in view market rates, the value of said land was bound to have increased with the passage of several years. As such the report given by D.W.1 Abdul Rehman Mukhtiarkar which was issued on 28-8-2001 showing the value of land as Rs,1,00,000 per acre, was apparently defective and incredible. Even otherwise, if there was any discrepancy in the different reports issued by two Mukhtiarkars regarding the same land, the benefit ought to be given to the Khatedar and not to the Land Acquisition Officer. Mr. Yasin Khan has pointed out that D.W.1 Abdul Rehman had stated before the trial Court that he himself had not personally visited the site before submitting the report before E.D.O and has mainly based his own report on the basis of report received from concerned Tapedar.
9. It may be significant to note that P.W. Shamasuddin Tapedar categorically stated in his deposition dated 3-2-2006, that he had been working as Tapedar on Tapa Garhi Yasin since 1998, and had further stated that he had worked with Mr. Dahar, the then Mukhtiarkar Garhi Yasin. It may be most pertinent to note that Shamasuddin Tapedar stated that he had not submitted any report showing the rate of land as Rs,100,000 per acre, which clearly contradicted the assertion made by Abdul Rehman Dahar, Mukhtiarkar. In the light of this evidence, credence cannot be given to the word of D.W.1 Abdul Rehman Mukhtiarkar, who shows the value of land at the rate of Rs,1,00,000 per acre vide his report dated 28-5-2001, specially keeping in view the fact that as long back as on 17- 5-1995, vide letter by Assistant Commissioner the value of same land was shown as Rs,100,000 per acre in year 1995. The evidence has come on record that there is garden of date-palm trees on the same lands, so also it has come in evidence that the land is situated in Garhi Yasin town, and is situated near the bypass of Indus highway. In the given circumstances finding of learned trial Court that the land of respondent No,1 fell in the "A" category and its market value shall be Rs,2,50,000 per acre as reported by the Mukhtiarkar Garhi Yasin through letter No, 234, dated 28-5-2001, is legal and proper, and the compensation to the respondent No,1 is to be paid at this rate.
10. With regard to issue No,2 framed by learned V-Additional District Judge, Shikarpur, the respondent No,1 was left at liberty to approach the land acquisition officer for payment of rent/compensation of the land acquired by the agency. Mr. Yasin Khan has stated that in the light of the same finding by learned Court, he has consistently approached the land acquisition officer for payment of compensation, but no response has been made. Mr. Yasin Khan has stated that he had moved an application on 19-7-2006, which was duly received by the land acquisition officer PARCO. For that matter the land acquisition officer shall be required to take appropriate action on the application made by respondent No,1 Yasin Khan.
11. With regard to issue No,3, as framed by the learned Referee Court, the finding was given that the respondent No,1 was not entitled for the interest under section 34 of Land Acquisition Act, as the amount of compensation was not paid or deposited on or before taking possession of the land. It has been stated by Mr. Yasin Khan that the factual position is that the land was taken into possession under section 4 of Land Acquisition Act by the acquiring authority on 30-11-2000, which fact has not been controverted by Mr. Jessar learned counsel for appellant. It has been further stated that the compensation amount to the tune of Rs,15,00,000 was deposited on 11-8-2001, whereas the amount to the tune of Rs,75 lacs was deposited in the month of January 2006; both the dates on which the amount was deposited, are clearly subsequent to the date of 30-11-2000, on which the land was taken into possession under section 4 of the Land Acquisition Act; in the view of this fact section 34 of the Land Acquisition Act will be clearly applicable, which provision, for the sake of convenience, may be reproduced:--
34. Payment of interest.---When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with compound interest thereon at the rate of eight per centum per annum from the time of so taking possession until it shall have been so paid or deposited.
12. Accordingly the respondent No,1 shall be entitled to compensation along with the interest thereon on the rate of six per centum per annum from the time of such possession until the amount of compensation is paid or deposited.
13. So far as finding on issue No,4 by learned Referee Court is concerned, to the effect that the respondent No,1 is entitled to payment of 15% per centum per annum of the compensation in the light of section 28-A of the Act; it may be observed that for fixation of the amount of compensation it may be relevant to consider as to whether the acquisition of land has been made for a public purpose or the acquisition was made for company. For that matter section 23 (2) of the Land Acquisition Act may be referred to, which may be reproduced as under:--
23. Matters of be considered in determining compensation.--- (1)..........................
(2) In addition to the market value of the land as above provided, the Court shall award a sum of fifteen per centum on such market value, in consideration of compulsory nature of the acquisition if the acquisition has been made for a public purpose and a sum of twenty five per centum on such market value if the acquisition has been made for a Company.
14. It is clearly laid down in the above cited provision of Land Acquisition Act that in case the acquisition has been made for a Company; then twenty per centum on the market value of the land has to be awarded. In present case it has clearly come in evidence that the land was acquired by Pak Arab Refinery Company (PARCO), which is a Company. Even the title of present land acquisition civil appeal clearly reveals that appellant No,2 PARCO has filed this appeal through its Company Secretary. In order to resolve as to whether the land was acquired for PARCO a Company or for any public purpose, the deposition of Ayoub Mari the land acquisition officer may be relevant. In his examination-in-chief he stated that he was appointed for the purpose of acquiring land for PARCO. The bare reading of this deposition would suggest that the land was acquired for a company as envisaged under the provisions of section 23 (2) of Land Acquisition Act. As such under the law the respondent No,1 may be entitled to the compensation at the rate of twenty five per centum on the market value of the land.
15. It may not be out of place to refer to authorities of law as reported in PLD 2004 Supreme Court 512 (Province of Sindh, through Collector of District Dadu and others v. Ramzan and others) and 2005 SLJ 313 (Shoukat Ali and others v. Deputy District Officer and others).
16. It was laid down in the above cited case law as reported in PLD 2004 Supreme Court 512, that any rise in value of land from date of notification till announcement of award being a potential value of land must be taken into consideration, and that the most important aspect qua lands compulsorily acquired is that the mandatory returns proposed to be given to landowners is the compensation and not the market value.
17. In present case, as discussed above, although the land was taken into possession on 30-11-2000, but the award was announced so late as on 19-9-2005, meaning thereby that the value of land must have increased with the passage of period of about five years, as such the value of the land at Rs,2,25,000 would not be improper.
18. Even otherwise the acquiring agency was legally bound to deposit the entire amount of compensation to the land acquisition officer before the award, as provided under sections 4 & 6 of the Land Acquisition Act. In the present case, admittedly the entire amount of compensation was not paid by the acquiring agency before the date of award. Admittedly the date of award was 19- 9-2005, whereas the amount of Rs,75 lacs was stated to be deposited in January 2006. By this way the mandatory provisions of law were violated by the land acquiring agency. This point has been elaborately clarified in the above cited authority of law, as reported in 2005 SLJ 313, in which it is laid down clearly that once notifications were issues under sections 4 & 6 of Land Acquisition Act the acquiring agency was bound to deposit the entire amount of the compensation to land acquisition officer before he awarded compensation to the claimants.
19. The reference may be made to case to Land Acquisition Collector. Islamabad and another v.
Alauddin and others as reported in PLD 2008 Peshawar 3, according to which the amount of compensation of acquiring land as determined by Collector had been enhanced by a Referee Court, and the Authority had filed appeal against the said enhancement. It was held that Referee Court had appreciated evidence on record in its true perspective and compensation had been enhanced for sound and cogent reasons, which were unexceptional and could not be successfully challenged. Mere assertion of counsel for appellants that evidence on record had not been appreciated in its true perspective and it had been dealt with mechanically in the slipshod manner, without a positive attempt to substantiate the same, was of no consequence. Statement of Halqa Patwari revealed that acquired land was situated adjacent to "Abadi", and fish farms and orchards were also around the suit land. It was held further that land acquisition Collector, without any justification, reason and evidence on record to the contrary had failed to award compensation on the basis of one year average. Compensation determined by the Collector was not reasonable and the one determined by Reference Court was in consonance of the spirit of law.
20. In view of the foregoing discussion, the impugned order dated 5-6-2006, by Vth-Additional District Judge, Shikarpur is modified to the extend that compensation amount at the rate of Rs,2,50,000 per acre shall be awarded to the respondent No,1 with interest thereon at the rate of six per centum per annum from the time of taking ,possessian of the acquired land until the date of payment/deposit; and while determining the amount of compensation to be awarded to respondent No,1, in addition to the value of the land, a sum of twenty five per centum on the value of land shall be paid to respondent No,
1. With the above modifications, the impugned order is maintained, and this land acquisition 1st appeal is dismissed in limine.