' Ch. Muhammad Masood Jahangir, J.--The facts germane for the disposal of instant appeal are that National Highway Authority/appellant acquired property of the respondent measuring 08- Kanal, 16-marla situated in Chak No, 110/12-L, Tehsil Chechawatni, District Sahiwal for the construction of National Highway, section Mian Chanu to Sahiwal. In this regard notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as act) was issued on 16.6.1987 whereas notification under Section 17 of the Act was issued on 08.2.1989 and thereafter award by the collector was announced on 23.10.1994 determining the compensation of the acquired land @ Rs, 2,07,947 per acre.
2.By filing the reference under Section 18 of the Act, the respondent averred that market value of the acquired land was Rs, 12,000/- per marla as the same was situated within the urban area of Municipal Committee Chechanwatni. It was further pleaded that due to the acquisition of land, the rest of the land was bifurcated in pieces. The respondent claimed compensation of acquired land at the rate of Rs, 12,000/-per marla.
3.Conversely, the appellant resisted the said reference by filing written reply before the Referee Court with the assertion that compensation had been correctly determined as per law. The Referee Court captured the disputed area of facts by framing the following issues: 1.Whether the reference is within time? OPA 2.Whether the petitioner is estoped by his words and conduct to bring the reference? OPR 3.Whether the amount of compensation is required to be enhanced if so, to what extent? OPA 4.Relief.
4.Both the parties produced their evidence before the learned Referee Court and the learned trial Court vide impugned judgment dated 30.11.2001 determined compensation of the acquired land at the rate of Rs, 2,300/- per marla along with 15% compensatory acquisition charges with 8% compound interest already awarded and interest at the rate of 69k per annum on the excess compensation from the date of acquisition. Being aggrieved the instant appeal has been filed by the authority/appellant.
5.Learned counsel for the appellant has argued that the Referee Court while deciding the reference ignored the evidence led by the appellant; that the authority successfully proved their contentions raised in the written reply as to the fact that the collector had determined the compensation at a just and fair rate according to the potential of the acquired land. It is also mooted by the learned counsel for the appellant that the Referee Court erred in law while awarding the interest on the enhanced compensation from the date of acquisition rather it was to be awarded from the date of taking over possession of the acquired property.
6.Conversely, learned counsel for the respondent has supported the impugned judgment and argued that learned trial Court was bound to award interest at the rate of 8% per annum on the excess compensation as per law, but the learned Referee Court ignored the said provision and awarded interest on the excess compensation at a lower rate 7.Arguments heard Record perused.
8.The findings on Issue No, 3 are pivotal and relevant, which require redetermination by this Court.
To comment on the award to the effect that the property had not been assessed according to its worth and value, Bashir Ahmad Patwari PW. 1 was examined, who produced the revenue record as well as map Exh.P.1 of the acquired property. Muhammad Zia-ul-Haq PW.2 , record-keeper of D.C.
Office was produced as PW.2, who produced the file of the award of the subject land and got exhibited Notifications Exh.P3, Exh.P4, letter dated 29.11.1989 Exh.P5, Award Exh.P6, Supplementary Award Exh.P7 and copy of Award Exh.P8. Bashir Ahmad Bhatti PW.3 Assistant Revenue Officer of Commissioner Officer, Multan also tendered in evidence copy of letter Exh.P9. Nazir Ahmad Patwari, National Highway Authority PW.4 also produced copies of documents/letters issued by the revenue authority in respect to the acquiring of disputed land. PW.5 attorney of the petitioner deposed on the lines according to his version. Copies of different mutations and revenue record Exh.P-11 to Exh.P-61 were also produced in the documentary evidence by the respondent.
9. Conversely, solitary statement of Syed Mazhar Abbas Patwari, National Highway Authority was got recorded by the appellant, whereas documentary evidence ranging from Exh.R-1 to Exh.R-19 was also produced by the appellant. The learned Referee Court after assessing the documentary evidence/copies of mutations Exh.A-11, 12, 15, 20, 31, 32, 33 produced by the respondent and copies of mutations Exh.R-1 to Exh.R-3 and Exh.R-8 to R.-11 answered the above referred Issue No, 3 partially in favour of the respondent. It is settled principle of law that Land Acquisition Act, 1894 is founded on the doctrine of "Sal us pouli Suprema lex" that the interest of public is supreme and that the private interest is subordinate to the interest of the State, therefore, it is well established canon of interpretation that the benefit has to be given to the subject. The procedure for the determination of the compensation of the acquired land has been provided under Sections 23 and 24 of the Act ibid. The perusal of said provisions has reflected that neither value of the land nor the market vale of the land has been darned therein, but the said provisions have laid down the circumstances to be taken into consideration for the purpose:--
1. The market value or market price means the price property would fetch in the market. The price will be highest price a willing buyer would pay a willing seller would accept both being fully informed and the property being exposed for a reasonable period of time.
2. The market value may be a different from the price a property can actually be sold at a given time. The market value is that price which might be expected to ring if offered for sale in a fair market.
3. In assessing the compensation the potential value i.e, the benefits, advantages arising from the present use and future use to be taken into consideration.
4. The inflationary trend and depreciation in currency of the country between the date of acquisition under Section 4 of the Act and the date of award also should not be totally ignored and be taken into consideration.
The phrase "market value of the land" as used in Section 23(1), of the Act means "value to the owner" and, therefore, such vale must be the basis for determination of compensation. The standard must be no, subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration. It is well-settled law that in cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the materiaj date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act.
10. The learned Referee Court after considering the copies of mutations attested in respect of other property situated in the same locality assessed the compensation of the acquired property. There is yet another aspect of the matter, which may have a bearing on the value of the property and that is the award wherein the character of property as agricultural as well as urban has been conceded. Even the appellant failed to rebut the evidence led by the respondent. RW.1 in his solitary statement deposed as under:- {{URDU TEXT}}
11. On the touchstone of above discussion as well as analysis of the evidence led by the parties, the learned Referee Court was justified to enhance the compensation at the rate of Rs, 2,300/- per marla. However, the contention of learned counsel for the appellant that learned Referee Court erred in law while imposing interest on the excess amount from the day of acquisition has force.
Before considering the said contention it will be advantageous to take notice of Section 28 of the Act, which is reproduced hereunder for ready reference: "28. Collector may be directed to pay interest on excess compensation.--If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum with the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of six per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court."
' Further amended, which is as follows: "In Section 28, for the words "interest on such excess at the rate of six per centum" the words "compound interest on such excess at the rate of eight per centum" shall be substituted; and the following proviso be added at the end: ' Provided that in all cases where the Court has directed that Collector shall pay interest on such excess at the rate of six per centum from the date on which possession was taken and the payment of compensation or a part thereof has not been made up to the commencement of the Land Acquisition (West Pakistan Amendment) Act, 1969, the rate of compound interest on such excess or balance shall be eight per centum.
' The perusal of the referred provision makes no mention of the date of the acquisition or of the date of the judgment of the learned Referee Court, who enhanced the compensation. Having sought guidance from the judgment rendered by the apex Court reported as Nishat Sarhad Textile Mills Ltd. Vs. Sher Ahmed Khan and others" (PLD 1976 SC 531), we are of the view that the respondent will be entitled to receive the rate of interest from the date when the collector took possession of the property up to the date the enhanced compensation determined by learned Referee Court is paid.
12. The contention of the learned counsel for the respondent that Section 28 of the Act has stood amended and the learned Referee Court was bound to award 8% interest on the enhanced compensation has also force. Even while showing his grace learned counsel for the appellant conceded that the order of the learned trial Judge directing payment of interest at the rate of 6% is not inconformity with the prevailing law. Therefore, the order of the learned Referee Court awarding interest is modified to the extent that the respondent will be paid compound interest at the rate of 8% per annum on the excess amount of compensation (difference between the compensation ordered by the referee, Court and the one awarded by the collector) from the day of the collector took the possession of the property.
11. The epitome of above discussion is that instant appeal is partially accepted to the extent that respondent will be entitled to interest on the excess compensation from the date of possession till the day of payment of excess compensation whereas impugned judgment passed by learned referee Court is modified and respondent are entitled to recover interest at the rate of 8%'per annum instead of 6% per annum and the appeal is dismissed to the extent of other prayers regarding the reduction in the compensation determined by the learned referee Court.