' CH. MUHAMMAD MASOOD JAHANGIR, J.---This single judgment will dispose of R.F.As. Nos.397 and 377 of 2013 jointly, which have been filed by the rival parties against each other challenging the same judgment and decree passed in the reference under section 18 of. The Acquisition Act, 1894 and the common questions of facts and law are involved.
2. The facts germane for the disposal of the case in hand are that property measuring 58 kanals 7 marlas situated in Kasur (androon) 'Tehsil and District, Kasur was owned by the appellants of R.F.A.No.397 of 2013 and the said property along with other property total measuring 187 kanals 8 marlas had been acquired vide notification under section 4 of the Land Acquisition Act, 1894 published in the Government of Punjab Gazette dated 14-12-1980, which was followed by publication of the notification under section 17(4) read with section 6 ibid in the Government of Punjab Gazette on 2-11-1983 for the construction of Technical Training Centre, Kasur. The possession of the disputed land had been taken over by the respondents on 16-5-1981 whereas the award was announced on 24-3-1998 and the appellants were awarded the compensation Rs.102.93 per marla plus 15% compulsory acquisition charges along with compound interest @ Rs.8 per annum from the date of possession to the date of payment. The said award was challenged by the appellants by filing Reference under section 18 of the Land Acquisition Act, 1894 before the learned Senior Civil Judge, Kasur with the assertion that compensation was wrongly assessed in spite of that the disputed property was not agricultural, but the same was urban, which was situated inside Kasur Municipality. It is further averred that Collector had determined the value of the land arbitrarily while ignoring the status, location and potential of the acquired property. The said reference was contested by the respondents. The learned Referee Court captured the disputed area of facts by framing the following issues:-
(1) Whether award is an independent one? OPA
(2) Whether land acquisition collector determined inadequate price of the disputed land and the petitioners are entitled to take value of land at the rate of Rs.I0,000 per Marla with compensation?
OPA
(3) Whether the petitioners filed reference with mala fide intention? OPR
(4) Relief
3. After recording evidence of the parties the learned Referee Court partially accepted the reference and enhanced the rate of compensation from Rs.102.93 to Rs.1500 per marla vide judgment and decree dated 20-12-2012. The concluding para of said judgment is reproduced hereunder:-- "In peroration of my finding on each issues above, the award being paranoid, and without having any backing of reasons is set aside and same is hereby partially accepted and it is held that proper amount of compensation which is payable to the petitioners is Rs.1500 per Marla instead of Rs.10,000 Per Marla from the date of possession of the property."
' However, the learned referee court did not award compulsory acquisition charges and compound interest while observing on. Issues Nos.1 and 2 that the appellants did not claim the same and they were not entitled to receive the same.
4. The said judgment and decree dated 20-12-2012 has been challenged by both the parties by filing the above referred appeals. The appellants of R.F.A.No.397 of 2013 are seeking enhancement of compensation along with 15 % compulsory charges and 8% compound interest whereas the respondents, who are also appellants of R.F.A.No.377 of 2013 are also seeking setting aside of the impugned judgment and decree.
5. The learned counsel for the appellants has argued that while determining the amount of compensation Rs.1500 per marla the learned Referee Court has miserably failed to fully appreciate the entire documentary evidence available on the record and to consider the location of the land the high potential value and the use to which it could be put in the future and its fitness for Abadi.
He has further argued that the learned Referee Judge has failed to award 15% compulsory acquisition charges and compound interest @ 8% per annum as awarded by the Land Acquisition Collector on the flimsy ground that the appellants had not prayed for the compulsory acquisition charges and interest. He has further prayed that the impugned judgment and decree being a result of misreading and non-reading of documentary evidence produced by the appellants are liable to be set aside by allowing the instant appeal and the compensation be enhanced and the compulsory acquisition charges and compound interest be also awarded.
6. Conversely the learned Law Officer appearing on behalf of the respondent has argued that the impugned judgment passed by the learned Referee Court is against law and facts of the case, that the Land Acquisition Collector had considered high potential value of the land while awarding compensation which fact has been escaped by the learned Referee Court, that Member Board of Revenue after taking into consideration the prevailing market price has passed the order. He has last prayed for dismissal of the instant appeal and setting aside of the impugned judgment.
7. Arguments heard and record perused.
8. The pivotal issue in the cases in hand is that what should be the actual compensation of the acquired land. The mode for determining the same is provided in section 23 of the Act of 1894, which reads as under:--
23. Matters to be considered in determining compensation.---(1) In determining the amount of compensation to be awarded for land acquired under this Act, the court shall take into consideration-- firstly, the market-value of the land on the date of the publication of the notification under section 4, subsection (1) ' secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; ' thirdly, the damage (if any) sustained, by the person interested, at the dine of the Collector's taking possession of the land, by reason of severing such land from his other land; ' fourthly, the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, if ay other manner, or his earnings; ' fifthly, if,, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and ' sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
(2) In addition to the market-value of the land as above provided, the court shall in every case award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition.
9. An analysis of the aforesaid provisions reflects that the landowner is entitled to compensation and not just market-value and, therefore, loss or injury occasioned by its severing from other property of the landowner, by change of residence or place of business and loss of profits are also relevant. The delay in the consummation of the acquisition proceedings cannot be lost sight off.
While conducting the aforesaid exercise, oral evidence, if found, credible and reliable can also be taken into account. In Abdur Rauf Khan v. Land Acquisition Collector/D.C. (1991 SCM R 2164) the august Supreme Court while dilating upon the question of rate of compensation laid down the following principles germane to section 23 of the Land Acquisition Act, which may be kept in view.
Those are as follows:- "(i) That an entry in the Revenue Record as to the nature of the land may not be conclusive, . For example, land may be shown in Girdawari as Maira, but because of the existence of a well near the land, makes it capable of becoming Chahi land;
(ii) That while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered;
(iii) That the market value of the land is normally to be taken as existing on the date of publication of the notification under section 4(1) of the Act but for determining the same, the prices on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years may be considered including other factors like potential value etc."
10. The appellants produced Muhammad Afzal as AW1, Muhammad Bashir as AW2 and one of the appellants himself appeared as AW3 a perusal of whose evidence shows that they remained consistent on the point that the acquired property situated within the local limits of Kasur Municipality, which was also surrounded by residential colonies and its potential value was not below Rs.10,000 per marla. Besides the said oral evidence, the appellants also produced copy of letter issued by Deputy Commissioner to Secretary (Settlement) Board of Revenue, Lahore Exh.A14 and copy of letter issued by AC/LAC to Deputy Commissioner Kasur along with report as Exh.A18.
The perusal of said report shows that average price of land was Rs.5,220 per marla and prevailing market price was shown to be Rs.18,000/20,000 per marla. Although the said valuation by itself might not furnish conclusive evidence qua value of property, but it has to be taken note of particularly in absence of any evidence to the contrary regarding value of the property and other factors reflected in the evidence with regard to the potential value of property. The said letters had been issued by the Revenue hierarchy prior to the announcement of award. Besides the above, the appellant produced attested copies of mutations as well as sale deed Exh.A23 to A33, which also fully support the version of the appellants. The copies of notifications published in the Punjab Gazette under section 27 of the Stamp Act pertaining to the year 1998-99 relating to the other property situated in Kasur (androon) are also available as Exh.A19 to A20, which too support the potential value of the acquired property as claimed by the appellants. On the other hand no relevant oral or documentary evidence could be produced by the defendants to negate the stance of the appellants.
11. The evidence available on record fully proves the fact that the land under acquisition situated in the Kasur Municipality limits and in the vicinity housing colonies had been developed whereupon the potential value of the said land was enhanced from agricultural to Urban. In the recent judgment reported as Land Acquisition Collector GSC NTDC (WAPDA), Lahore v. Surraya Mehmood Jan (2015 SCM R 28) the apex court after taking into consideration guidelines laid down in the judgment reported as Province of Punjab Through Land Acquisition Collector and Another v. Begum Aziza (2014 SCM R 75) and discussing the plethora of judgments on the subject has held that the term "market-value" as employed in section 23 of the Act of 1894 implies the price that a willing purchaser would pay to a willing buyer in an open market arms l";igth transaction entered into without any compulsion and for ready reference para 9 of (2015 SCM R 28) is reproduced as under:-- "9. The principles that can be gleaned from the aforesaid judicial precedents are that the term "market-value" as employed in section 23 of the Act of 1894 implies the price that a willing purchaser would pay to a willing buyer in an open market arms length transaction entered into without any compulsion. Such determination must be objective rather than subjective. While undertaking this exercise, contemporaneous transactions of the same, adjoining or adjacent as well as the land in the same vicinity or locality; in dissenting precedents, may be taken into account. An award of compensation of a similar, adjacent, adjoining land or in respect of the land acquired in the same vicinity or locality cannot be ignored. The classification of the land in the Revenue Record cannot be the sole criteria for determining its value and its potential i.e. The .Use of which the said land can be put, must also be a factor. In this behalf, the use of the land in its vicinity needs to be examined."
12. We are of the considered view that the value assessed to be paid to the appellants under the Land Acquisition Act, 1894 was not the price of land acquired rather its compensation to the land owners from whom the property was being taken. On the other hand an owner of some of the property has to first make mind to sell his property after considering his need and the amount to be paid to him as a consideration as well as use of the said land. However, the land is acquired from the land owners without considering urgent need and consent of land owners or any immediate requirement of the land owners for the amount paid in lieu of acquisition of that property. As such the amount of compensation should not be less than sale price of the property in the market but may be more keeping in mind the circumstances of each case.
13. While keeping in mind the evidence available on record and the above referred judgments we are of the view that the appellants succeeded to prove that both the collector as well as referee court failed to assess the compensation of the subject land according .To its potential value and the documentary evidence available on record was totally ignored by the learned Referee Court while awarding the compensation of the acquired property payable to the landowners, which was not in any case less than Rs.10,000 per marla.
14. Now we advert towards the question of awarding compulsory acquisition charges and compound interest. The learned referee court has refused the same merely on the ground that the appellants did not claim the same. Compulsory acquisition charges are payable under section 23(2) of the Act of 1894, which reads as under:-- "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 the 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."
' A perusal of the afore quoted provision has made it clear that it was obligatory upon the learned referee court to award compulsory acquisition charges keeping in view that for which purpose the land was being acquired and the same could not be refused merely on the- ground that the same were not claimed by the appellants. There is no conflict between the parties that the land of the appellants had been acquired for the establishment of the Technical Training Centre, which is definitely a public purpose and, therefore, the appellants are also held entitled to 15% compulsory acquisition charges.
15. Similarly the controversy for awarding compound interest is covered by the provisions of Section 34 of the Land Acquisition Act, 1894 which provides that 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 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. It is also clarified in the proviso that any waiver of the said right by the land owner shall be void, but he shall be entitled to the said interest notwithstanding any agreement to the contrary. For ready reference, the said provision is reproduced hereunder:- "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 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. 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".
16. The admitted facts of the case are that the Notification under Section 4 was published on 14-12- 1980 followed by publication of subsequent Notification under Section 17 on 2-11-1983 and the possession of the disputed property was taken over by the Land Acquisition authority prior to the said Notification on 16-5-1981, whereas, award was announced after elapse of about 17 years on 24-3-1998. As such the land owners are entitled to receive 8% compound interest from the date of taking over possession of the acquired property. The learned Referee Court has erred in law while refusing the same and the findings of the learned referee court on issues No.1 and 2 are reversed.
17. In the light of the facts and circumstances discussed above, R.F.A.No.397 of 2013 filed by the appellants is accepted, the impugned judgment and decree passed by the learned referee court is modified in the terms that compensation awarded by the learned referee court is enhanced from Rs.1500 per marla to Rs.10,000 per marla and the appellants are also held entitled to compulsory acquisition charges at the rate of 15% and compound interest at the rate of 8% per annum from the date of taking over possession of the acquired property.