Water and Power Development Authority through Chairman WAPDA, Lahore and others have filed this appeal under Section 54 of the Land Acquisition Act, 1894 through which they have impugned the judgment and decree dated 27.12.2007 passed, by learned Additional District Judge-V/Referee Court. D.I.Khan under the Land Acquisition Act, 1894, whereby the reference petition filed by the land owners-respondents was accepted and the compensation was enhanced from Rs,4,346/46 to Rs, 16,300/80 per kanal alongwith 25% compulsory acquisition charges and 8% compound interest from the date of taking over possession till the payment of the entire awarded compensation.
2. Briefly narrated the facts of the case are that the Government of NWFP was in need of acquiring some land for the construction of Drain No, 22 CRBC Stage-II WAPDA for which the land of the respondents measuring 175 acres, 01 kanal and six marlas situated in the area of Gara Ashiq, Tehsil and District D.I.Khan was acquired. The land owners-respondents, while not accepting the award, opted to file Reference Petition praying therein for referring the matter to the civil Court i,e, a Court constituted through notification under the Land Acquisition Act, 1894. Resultantly, the matter was referred to the Court of Additional District Judge-V/Referee Court, D.I.Khan. The land in this case had been acquired through Award No, 281 dated 27.5.2004.
3. The averments in the petition were that the learned Land Acquisition Collector had announced his Award on 27.5.2004 and had awarded a meager compensation of Rs,4,346/46 per kanal. It was alleged that the one year average, upon which the learned Collector has relied, was not relevant.
The land acquired from the respondents had broad future prospects and was highly potential in value. Thus, the learned Land Acquisition Collector had under assessed the land of the respondents. It was also averred that the land acquired from the respondents was completely levelled and Abad land situated about furlong from Multan road Indus Highway and was adjacent to the Abadi of Gara Ashiq where Male and Female Schools. Veterinary Hospital, mettaled road and all the facilities and immunities of life were available. It was also averred that suit land is building site and is commercial in nature. The adjacent lands are being sold at the rate of Rs, 1,20,000/- per kanal. It was also averred that one year average of 1997 was considered but the Award had been announced on 27.5.2004. Furthermore, the market value as determined by the Deputy Commissioner was Rs, 14,000/- per kanal which is being substantially increased due to high trend of inflation and the respondents are entitled to the then prevailing market value.
4. The defendants-appellants were summoned who submitted their detailed written statement wherein the allegations in the petition were hotly contested and the pleadings of the parties were reduced into following issues:--
1. Whether the petitioners have got a cause of action?
2. Whether the petition is within time?
3. Whether the compensation amount assessed in the disputed Award is wrong, illegal and against the facts and the petitioners are entitled to the enhanced rates as prayed for?
4. Whether the petitioners are entitled to the relief prayed for? 5.Relief.
5. The parties then produced their respective evidence as they wished to produce and the learned trial Court, after hearing the learned counsel for the parties and perusing the data available on the record, passed the impugned judgment and decreed referred to above.
6. Mr. Minhajuddin Alvi, learned counsel for the appellants submitted that the learned trial Court has not taken into consideration the evidence recorded in the case and the revenue record, wherein the suit land was shown as Nehr/irrigated type of land. The learned trial Court should have awarded the compensation as determined in the one year average of a year preceding the Notification under Section 4 of-the Land Acquisition Act. 1894. It was also argued that the learned trial Court has not taken into consideration the overwhelming evidence in the shape of documentary as well as oral brought by the parties on' the record and has erroneously determined the compensation to the tune of Rs, 16,300/80 per kanal alongwith compound interest at the rate of 8% plus compulsory acquisition charges at the rate of 25%.
7. As against this Mr. Abdul Qayyum. Qureshi, learned counsel appearing for the respondents argued that the acquired piece of land was one chunk of land, was situated near the Abadi, was highly potential in value and in fact was building site and commercial in nature. The learned Land Acquisition Collector had under assessed the land of the respondents by awarding a very meager compensation and the learned Referee Court had taken into consideration the data available on the record and has properly assessed the compensation as well as compound interest and 25% compulsory acquisition charges. It was next contended that WAPDA, being a Company, was obliged to pay 25% compulsory acquisition charges and not 15%. Referring to various provisions of the WAPDA Act, it was submitted that WAPDA is a body corporate/Company with a common seal and perpetual succession and thus, acquisition of land was for a Company and the learned Referee Court has rightly given 25% compulsory acquisition charges.
8. I have heard the learned counsel for the parties and with their valuable assistance have scanned the record.
9. The learned trial Court has enhanced the compensation and has ordered that the respondents/land owners will be entitled to 8% compound interest from the date of taking over possession till the payment of the entire awarded compensation in view of Section 28 of the Land Acquisition Act but the learned Referee Court was oblivious of the situation that Section 28 had been amended vide NWFP Ordinance No, V of 1983 and 8% compound interest per annum already permissible on the total awarded compensation was reduced to 6% simple interest. Thus, to this extent, the judgment and decree of the learned Referee Court needs modification.
10. The award of 25% compulsory acquisition charges by the learned Referee Court is also erroneous under Section 23 of the Land Acquisition Act. Although under subsection (2) of Section 23 of the Act ibid if the acquisition of land is for a public purpose, then the land owner would be entitled to the compulsory acquisition charges at the rate of 15% but if the acquisition for a company, then, besides compensation, the land owners will be entitled to 25% compulsory acquisition charges. This is an admitted legal position that if the acquisition is for a Company, the Company will be obliged to pay 25% to the expropriated land owners but perusal of the record reveals that the acquisition of the land was for a public purpose. Although WAPDA is a Company in view of the WAPDA Act, 1958 but Section 13 of the Act ibid provides that the land acquired by the authorities shall be deemed to be an acquisition for a public purpose within the meanings of the Land Acquisition Act, 1894. This is on the record that the acquisition was for the purpose of construction of Chashma Right Bank Canal which was a public purpose. So in spite of the fact that the acquiring Department was a Company but the acquisition was for public purpose. Thus, the appellants were not obliged to pay 25%, rather the land owners were entitled to 15% compulsory acquisition charges as held in the judgments handed down in the cases of Muhammad Salim Khan and another. Vs. WAPDA (PLJ 2001 Peshawar 6) and Haji Fateh Khan and others. Vs. Govt: of Pakistan (PLD 1997 Peshawar 24). Thus, the judgment and decree of the learned Referee Court is liable to be modified to that extent also.
11, Now, coming to the merits of the case, perusal of the record reveals that the learned Deputy Commissioner had recommended the market value of the suit land to be Rs, 14000/- per kanal but the learned Land Acquisition Collector, in his impugned Award dated 27.5.2004, had awarded meager compensation to the land owners without taking into consideration the location of the land, its high potential value and the . future prospects of the same. The learned Referee Court has taken, into consideration the factors enumerated in Section 23 of the Land Acquisition Act. The high potential value and the admission of DW-2 Muhammad Aslam Patwari CRBC that the suit land is adjacent to Indus Highway but however, it was asserted that the acquired piece of land is situated at some distance from the Indus Highway. It was also admitted that the potential value of the acquired land has further been increased due to the construction of Flood Carrier Drain No, 22 CRBC Stage-II. It is also on the record that notification under Section .4 of the Land Acquisition Act was issued on 04.10.1994 and the Award was announced on 27.5.2004 and thereby there was upward trend in the prices of the acquired land. It is also admitted on the record that the land is highly potential in value and the compensation fixed by the learned Referee Court in view of the dicta handed down in the cases of Province of Punjab through Collector Attock. Vs. Engineer Jamil Ahmad Malik and others (2000 SCMR 870) and NWFP through Collector Abbottabad Land Acquisition and others. Vs. Haji Ali Asghar Khan and others (1985 SCMR 767) is perfectly in accord with the established principles of law enunciated by the apex Court and are not liable to be interfered with and the judgment of the trial Court with respect to the quantum of compensation is maintained.
12. In view of the facts and circumstances of the case narrated above, this appeal is partly accepted and the judgment and decree of the learned Referee Court is modified to the extent that compulsory acquisition charges of 25% are reduced to 15%, while the compound interest of 8% is reduced to 6% simple interest from the date of taking over possession till the payment of compensation to the land owners whereas the rest of the judgment and decree of the learned Referee Court is maintained, with no order as to costs.
13. Above are the reasons for my short order dated 01.12.2008.