' QALANDAR ALI KHAN, J.---This single consolidated judgment in the instant Regular First Appeal shall also dispose of the below mentioned three Regular First Appeals, -as all the four appeals pertain to one and the same Award No.16 dated 22.05.1998 in respect of acquisition of land from village Aldojabbi, Tehsil Ghazi, District Haripur, for Ghazi Barotha Hydro Power Project (GBHP) by the Wapda.
(I) Shah Umer Farooq and others v. Chief Engineer (B & R) and others (R.F.A. No.84-A/09).
(II) Wapda and others v. Shah Umer Farooq and others (R.F.A. No.30-A/10).
(III) Wapda and others v. Ahmed Shah and others (R. F. A. No.31-A/10).
2. The Land Acquisition Collector Ghazi Barotha Hydro Power Project NWFP initiated the process of acquisition of land in village AldoJabbi, Tehsil Ghazi, District Haripur, for construction of a power channel, in the public interest, through issuance of notification under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the Act, 1894) on 10.01.1994, followed by notifications under Sections 5, 6 and 7 of the Act, 1894. Eventually, notices under Sections 9 and 10 of the Act, 1894 were issued to the owners of land measuring 1422 Kanal and 7 Marla, and after hearing the land owners and examination of the record and other relevant factors, the Land Acquisition Collector (GBHP) Wapda, Tarbela, Ghazi, NWFP, announced award under Section 11 of the Act, 1894, on 22.05.1998, whereby, the Land Acquisition Collector fixed Rs.1,11,026.08 per Kanal for `chahr, Rs.64000/- for `Maira' and `Kund' and Rs.14,061.75 for uncultivated kind of land. It may be added here that the acquired land predominately comprised of Maira kind of land (1103 Kanal and 14 Marla). Being dissatisfied with the fixation of the compensation by the Land Acquisition Collector in the award, two separate objection petitions were filed by the land owners, one by Shah Umer Farooq and others (Objection Petition No.1/4 of 1998) and the other by Ahmed Shah and others (Objection Petition No.27/4 of 1998), which were separately disposed of by the learned Additional District Judge Ghazi/Camp Court, Haripur, but on the same date i.e. 14.09.2009, thereby enhancing compensation for Maira kind of land to Rs.85000/- Per Kanal and that of uncultivated land to Rs.50,000/-with 25 % compulsory acquisition charges. The references were answered accordingly.
3. Aggrieved of holding the kind of land as Maira instead of chahi/ irrigated, the land owners/objectors lodged the aforementioned two separate appeals; whereas Wapda, feeling aggrieved of levy of 25% compulsory acquisition charge moved the aforesaid two appeals.
4. Arguments heard, and record perused.
5. The land owners/appellants had claimed that their acquired land was `chahi' as was being irrigated from Tube Well installed by the Irrigation Department in Mian Dehri in the year 1993, therefore, the A learned Referee Judge fell into error by treating the land as `Maira' instead of `chahi'. In support of their claim, the land owners/appellants relied upon the evidence consisting of applications for electricity connection to the Tube Well, meter reading and revenue record showing a Tube Well (non functional) in Khasra No.887.
6. The land owners/appellants have themselves admitted in the appeals, and the record would also support their contention, that the Tube Well was installed in Mian Dehri; while the land was, admittedly, being acquired in the village Aldojabbi. Therefore, Khasra No.887, wherein the non functional Tube well was shown as installed, was not part of the acquired land. Moreover, the record showed only drilling by the Irrigation Department for Tube Well in village Aldojabbi with no pump or electric connection, and installation of other Tube Well in village Mian Dehri on 29.06.1997 i.e. Much after announcement of award on 10.01.1994, notwithstanding the fact that the land owners failed to prove on record irrigation of their land from the Tube Well located at a considerable distance in another village. Besides, the kind of acquired land is continuously recorded as `Maira', showing no change in the nature of land even in the post installation period. The report of local commissioner appointed by the learned Referee Judge will also bear testimony to the fact that the acquired land is not irrigated through a Tube Well or a Tube Well is situated in the vicinity.
7. During arguments, the learned counsel for the land owners/appellants urged that in Award No.7 of village Bhai flat rate of Rs.112761/- was fixed as compensation for one Kanal of all kinds of land acquired for the same purpose; but in another adjoining village namely Jammu, compensation of `Maira' Kind of land was fixed at Rs.78591/- Per Kanal. Therefore, instead of fixation of compensation at a flat rate of Rs.112761/- Per Kanal at par with village Bhai or at the rate of Rs.78591/- Per Kanal fixed as compensation for `Maira' Kind of land in village Jammu, the learned Referee Judge did the right thing by working out the average of `Maira' Kind of land in all the three adjoining villages, including Aldojabbi, at Rs.85000/- Per Kanal for `Maira' kind of land. Obviously, the flat rate of Rs.
112.761/- for all three kinds of land i.e.' `Maira', `Rakkar' and uncultivated in village Bhai could not form a valid basis for fixation of compensation for only `Maira' Kind of land, which was fixed at a lower rate i.e. At Rs. 78591/-per kanal in the other adjoining village, Jammu. Likewise, the report of local commissioner also did not reflect the fair and just valuation of the acquired land, as he did not furnish any justification or basis for fixation of compensation at Rs.300000/- Per Kanal; which was, as such, rightly discarded from consideration by the learned Referee Judge, who had appointed the local commissioner for determination of fair and just compensation for the acquired land. No other point was urged on behalf of the land owners/appellants, neither the respondents could show fixation of compensation by the learned Referee Judge not representing the fair and just value of the acquired land at the relevant time. Therefore, the two appeals of land owners/appellants and also two appeals by Wapda to the extent of fixation of compensation of the acquired land at Rs.85000/- Per Kanal for `Maira' Kind of land are dismissed.
8. However, the Wapda/appellants have a valid case to the extent of 25 % compulsory acquisition charges levied by the learned Referee Judge, as the land has, admittedly, been acquired for public purpose, namely, for construction of a power channel to run Ghazi Barotha Hydro Power Project and not for any purpose of the company so as to warrant levy of 25 % compulsory acquisition charges (2013 SCM R 1124). In the circumstances, there was no justification for levy of 25 % compulsory acquisition charges by the learned Referee Judge, as against 15 % compulsory acquisition charges levied by the Land Acquisition Collector in the award. As such, the impugned judgments of the learned Referee Judge to the extent of levying 25 % compulsory acquisition charges is set aside; and 15 % compulsory acquisition charges levied by the Land Acquisition Collector is found in order and in accordance with the spirit of relevant provision of law, hence restored, by acceptance of both the appeals lodged by the Wapda to the aforesaid extent.