ABDUL LATIF KHAN, J.---Through this single judgment, this court intends to dispose of instant Regular First Appeal No.99 of 2007 and connected Regular First Appeals bearing Nos. 101/2007, 113/2007 and 147/2007, as all the appeals are the outcome of same award and filed against one and same judgment dated 27-2-2007 passed by learned Additional District Judge-I/Referee Judge, Mardan.
2. Brief facts of the case are that on the request of respondents/ petitioners through Award No. NMS-348 dated 15-8-2005, their properties were acquired by the appellants/defendants for the remodeling of Narai Drain in Mauza Chamtar Dheri, Tehsil and District Mardan, wherein the respondents/petitioners were granted compensation as Rs.700 and Rs.350 per Marlas. Feeling dissatisfied, the respondents/ petitioners filed separate references, under section 18/30 of Land Acquisition Act, 1894. After conclusion of trial, the learned Referee Court, through consolidated impugned judgment and decree enhanced the amount of compensation at the rate of Rs.2000 per Marla along with 15% acquisition charges and 6% simple interest and 2% T.P. Tax. The said judgment was impugned by both the parties through instant Regular First Appeals (bearing Nos. 99/07, 101/2007, 113/2007 and 147/2007).
3. Learned counsel for the appellant (WAPDA) contended that the compensation granted through Award to the respondents/owners was Rs.700 for "Shah Nehri" kind of land and Rs. 350 for "Ghair Mumkin" kind of land in the light of one year average prepared by the revenue authorities and was in accordance with the market value of the property but the Referee Court has wrongly enhanced the amount to the tune of Rs. 2000 per Marla along with 15% compulsory charges plus 6% interest and 2% T.P. Tax without the aid of any evidence available on file. It was vehemently contended that the Objectors failed to produce any evidence for enhancement of compensation amount, even then the same has been enhanced without any justification by the Referee Court. It was argued that the property has been acquired for the Drain through which the remaining property of the owners/objectors became precious and obviously, the value of the same would be tremendously high and as such they were not entitled for any enhancement in compensation amount.
4. As against that learned counsel appearing on behalf of the respondents/objectors (appellants in connected Appeal No.113 of 2007) argued that the objectors have sought the compensation to the tune of Rs.20,000 per marla as per market value of the land, because the value of the land is tremendous high due to the location of the property. It was argued that sufficient evidence produced by the objector in support of their contention but the Trial Court has wrongly assessed the compensation to the tune of Rs.2000 per Marla instead of the market value claimed by the Objectors for a sum of Rs. 20,000. It was argued that the Referee Court has wrongly appreciated the evidence produced by the Objectors, both oral and documentary. It was further contended that land under reference was notified under section 4 of the Land Acquisition Act, 1894, whereas the Award was announced on 15-8-2005, which shows malice on the part of the acquiring authority. He contended that the partial enhancement of compensation is not in line with the law and the impugned judgment is liable to be modified by granting enhancement to the tune of Rs. 20,000 per Maria alongwith 15% acquisition charges plus 6% interest.
5. The learned counsel appearing on behalf of the appellant (LAC, etc. In Appeal No.147/07) contended that the rate fixed in the Award were based upon the attending circumstances and after observing all the formalities and nothing was brought by the objectors on the record to enhance the amount of compensation. It was argued that the market value of the land was fixed in the Award to the tune of Rs.700 and Rs.350 properly and the claim of the petitioners/objectors in the objection petition to the tune of Rs. 20,000 per Marla, was not supported by any evidence. It was vehemently argued that the Referee Court enhanced the amount and fixed Rs. 2000 per Marla on mere assumption as no evidence to this effect, both oral and documentary, has been brought on file. He referred to the one year average w.e.f. 25-11-2003 to 25-11-2004, where the market value of the land has been shown Rs.1330.47 per Marla Exh.P.W.4/4 but the Referee Court has ignored the same without any solid reasons.
6. As against that learned counsel appearing on behalf of respondents (appellants in connected R.F.A. No.101/2007), contended that the land under reference is fertile and is situated near the Abadi on metal road and in no circumstances the market value of the land is less than Rs.20,000 per Marla. He contended that the enhancement of compensation by the Referee Court to the tune of Rs. 2000 per Marla was not justified and to this extent the same is liable to be modified by substituting the enhancement from Rs. 2000 to Rs. 20,000 per Maria. It was contended that the findings of learned court on issue No.6 are challenged to this extent only that enhancement be fixed as Rs.20,000 in support of which sufficient evidence is available on file. I have heard arguments of learned counsel for the parties and perused the record with their valuable assistance.
7. Perusal of record reveals that Reference Petition No.2/4 of 2005 was filed on 4-10-2005 by Muhammad Usman, against Land Acquisition Collector and 6 others, in respect of Award NMS-348 dated 15-8-2005, whereby the land under reference was acquired by the respondents for remodeling Narai Drain of Moza Chamtar Dheri, Tehsil and District Mardan. Vide Reference Petition No.4/4 of 2005 filed on 14-10-2005, one Fateh Muhammad Khan and 2 others, against Land Acquisition Collector and 6 others, claiming enhancement against the same Award. Both the references were consolidated by the Referee Court and disposed off through consolidated judgment, impugned herein.
8. Objector in Petition No.2/4, Muhammad Usman claimed the enhancement to the tune of Rs.
20,000 for his land acquired measuring 7 Kanals, 18 Marlas along with 15% acquisition charges and 6% interest, whereas Muhammad Fateh Khan, objector in Petition No.4/4 of 2005, sought the enhancement of compensation of his land measuring 22 Kanals, 19 Marlas against the award wherein, compensation was granted to the tune of Rs.700 and Rs.350 per Marla.
9. Apart from the official witnesses from revenue department as well as land acquisition department, Siraj Muhammad, general attorney for petitioner appeared as P.W.6 who reiterated the stance taken in the objection petition by deposing that the actual market value of the property is not less than Rs.20,000 per Marla and the amount of compensation has wrongly been granted in the Award. Affirmative suggestions were made in the cross examination to the witness that applications were filed by the objectors for fixation of Rs.20,000 per Marla regarding the acquired land. Another suggestion was given to the witness that he has produced the record in respect of rate Rs.20,000 per Marla of the acquired land through official P.Ws. Though the trend of cross examination shows that the statement of witness could not be shattered, however, the quantum of enhancement claimed by the objector A to the tune of Rs. 20,000 was not supported by any evidence available on file. P.W.7 Minhajud Din, appeared as attorney for objector in connected petition No.4/4 who has also reiterated the stance taken in the objection petition that in no case the market value of the land is less than Rs.20,000 per Marla for the reasons that same is fertile property and situated near the city Abadi. In both the objection petitions objectors were represented through their attorneys and except those no other evidence produced in support of their verbal contention.
10. The assessm ent made in the award was based upon on one year average but the averages available on file Exh.P.W.4/4, Exh. P.W.4/5, Exh. P.W.4/6 and Exh. P.W.4/R-1, shows that an amount of Rs.1330.47 per Marla, Rs.2090.90 per Marla, Rs. 2500 per Marla and Rs.812.5 per Marla respectively were assessed as the market value of the suit property.
11. Admittedly the possession of the suit land under reference was taken on 4-12-2002 whereas the average relied upon by the District Collector for compensation Award from 7-3-1993 to 6-3-1994 and award was announced in the year, 2005, which was not in accordance with law and the assessm ent made on the basis of average was in no eventuality a safe reliance for determination of the value of the property for the purpose of compensation, for the simple reason that corrigendum notification issued on 19-12-2003 has been wrongly based upon the average for the year 1993 and 1994.
12. The acquired land as per record is situated near metal road called Dosehra road leading to Charsadda near to area of Mardan Municipal Committee and the sale price in the vicinity is higher than that assessed by the Collector. It is not out of place to mention here that normally people enter low price in the mutations and registered deed in order to avoid taxes etc and conceal the actual payment which are higher than that shown in the instrument of transfer. The compensation is to be paid to the owners different to that of valuation because the amount paid to the owners of land acquired is not in fact the market value, rather compensation, which is always higher than the price and in such eventuality the averages and that too of a back dates cannot be relied and as such, the amount assessed in the award are not in accordance with the compensation to be awarded to the land owners. Reliance can be placed on PLD 1997 (Pesh.) 19, wherein it has been observed that the amount payable to owners for acquisition of land is not the price but the compensation which is always higher than the price as numerous factors have to be considered while forcing to part with the property as against the payment to make willing sell.
13. It is admitted that the property was taken into possession in the year 2002 and the award was announced in the year, 2005 but due to rise in prices a fair compensation has to be determined for which the price shown in the averages prepared by the revenue authorities would not be a safe criteria and for this purpose other potentialities of the property are to be seen, keeping the location and future potentiality of the property and merely reliance of averages cannot be made. It was observed by the apex Court in case of "Land Acquisition Collector, Abbotabad and others v. Gohar- ur-Rehman Abbasi" reported in 2009 SCMR, 771:-- "that average of sales of one year is not conclusive for the determination of the market value of land under reference and while assessing the market value of the land, its location and potentiality has to be taken into consideration."
In "Province of Punjab through Collector Bahawalpur and others v. Sh. Hassan Ali and others" (PLD 2009 SC 16), the apex Court held that, "It would be pertinent to mention here that criteria for determination of compensation of land has been laid in section 23 of the Land Acquisition Act and it includes inter alia, the market value of the land at the date of publication of notification under section 4(1) of the Act, the damage sustained by the persons interested by reasons of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession, or by reason of severing such land from his other land, or by reason of the acquisition injuriously affecting his other property, movable or immovable in any other manner, or his earnings or if a person interested is compelled to change his residence or place of business and it also includes the damages from diminution of the profits of the land between the time of the publication of declaration under section 6 and the time of the Collector's taking the possession of land, etc, meaning thereby that it is cumulative effect of all the factors involved and compensation cannot be assessed solely on the basis of entries in the mutation effected at the relevant time."
14. The Referee Court has considered the averages available on file, the assessment made in the Award by the Collector and the evidence available on file apart from taking into consideration the location of the property, has rightly assessed and fixed the rate of acquired land by enhancing the compensation to the petitioner as Rs.2000 per Marla along with 15% compulsory acquisition charges plus 6% interest and 2% T.P. Tax from the date of possession till the date of petitioner, according to revenue recotd.
15. So far compulsory acquisition charges awarded by the Referee Court at a rate of 15% is concerned, WAPDA being body corporate falls within the definition of company and as such, the appellants are entitled to the compulsory acquisition charges to the tune of 25% instead of 15%. The apex Court in "Mst.Sumaira Gul v. Land Acquisition Collector GSC, WAPDA, Peshawar and others" case reported in 201.1 SCMR 118, held that:-- "WAPDA being body corporate is a company and the land acquired for a company in terms of section 3(e) of the Act, the appellant was entitled for a compulsory acquisition charges, in addition to market value of the land at the rate of 25% and not at the rate of 15%."
In case of Secretary to Government of N.-W.F.P., Peshawar v. Haji Fateh Khan (2001 SCMR 974) the Apex Court held that, "WAPDA being company under section 3(e) of for the purpose of Land Acquisition Act, 1894, enhancement of compulsory acquisition charges was justified to the tune of 25% instead of 15%."
In case of "Muhammad Mushtaq Ahmad Khan and 2 others v. The Assistant Commissioner, Sialkot and 3 others (PLD 1983 (Lah) 178)" the following observations was made.
"S.3(e)---Companies Act (VII of 1913), S.253---Water and Power Development Authority company- Although WAPDA not a company registered under Companies Act, 1913, yet a company incorporated by Water and Power Development Authority Act, 1958, consisting of a Chairman and not more than three members joined for common purpose of fulfilling object WAPDA and as such included in word "company" as defined in S. 3(e) of Land Acquisition Act, 1894."
Company defined under section 3(e) of the Act dotes not confined to a company in technical sense, but extends to its generic sense of being an association of persons united for a common purpose."
16. Section 23 of the Land Action Act has given a yardstick that in addition to market value, this compulsory acquisition charges are to be awarded at the rate of 15%. If the acquisition has been made for company for the land acquired for public service a sum of Rs. 25% in such market value as compulsory acquisition charges has to be awarded and not at the rate of 15%. So in such scenario though the objectors have failed to ask for compensation at the rate of 25% but the legal position being contrary to their prayer is to be followed and to this effect to the extent of compulsory compensation the judgment of the Referee Court is modified and instead of 15% compulsory acquisition charges, 25% are awarded.
17. The objectors have unable to point any infirmity in the impugned judgment. No plausible reasons forwarded to justify the enhancement of compensation to a sum of Rs.20,000 per Marla, nor could convince the Court that enhancement made to the tune of Rs.2000 per Marla was not fair in the circumstances of the case. For the reasons mentioned above, R.F.As. Nos. 99 of 2007 and 147 of 2007 are dismissed whereas R.F.As. Nos. 101 of 2007 and 113 of 2007, are partially allowed to the extent of awarding compulsory acquisition charges to the tune of 25% instead of 15%.