ROOH-UL-AMIN KHAN, J. Through the instant appeal, the appellants have challenged the order /judgment dated 16.12.2019 passed by learned Additional District Judge-VIII/ Referee Court Mardan , whereby the reference petition No. 329/4 LA of 2017 filed by the appellants for the enhancement of market rate of their land acquired by the respondents for construction of Bacha Khan Medical College, District Mardan was allowed and the compensation amount was enhanced from 2800 /- to Rs. 1,25,000/- per marla, however , the grant of 6% interest has been refused.
2. Brief facts of the matter are that, the respondents acquired a piece of land vide Award No. 96/4/L.A Cell dated 10.10.201 1 for construction of Bacha Khan Medical College, Mardan in mauza Palatoo by fixing the compensation amount as Rs. 2800/- per marla. Being dissatisfied with the compensation amount fixed by the respondents- department, the appellants filed reference before the Referee Court, Mardan which was accepted vide judgment dated 16.12.2019 and the compensation amount was enhanced to Rs. 1,25,000/- per marla with 15% compulsory acquisition charges however , the relief of 6% interest was declined. Feeling aggrieved from the above judgment to the extent of refusal of 6% interest, the appellant have filed the instant appeal.
3. Having heard the arguments of learned counsel for the parties perusal of record reveals that the compensation amount of land was enhanced by the referee Judge alongwith 15 % compulsory acquisition charges but the relief of 6% interest was denied on the ground of alleged latest amendment in section 28 of Land Acquisitions Act, 1894, whereby the 6% simple interest over the compensation amount has been deleted. No doubt the section 28 of the Land Acquisition Act, 1894 was amended by the province of Khyber Pakhtunkhwa, but by the said amendment the 6% simple interest has never been deleted. For the purpose of better understanding the amended section 28 is reproduced which read as: Section. 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 which the Collector did award as compensation, the award 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.
K.P.K Amendment: In section 28,for the words" 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," the words " deposit with the Court such amount as determined by it" shall be substituted.
On amendment of the above quoted section 28 by the Khyber Pakhtunkhwa the phrase of payment of interest on the excess amount @ Rs. 6% was deleted, but the Collector was held liable to deposit the excess amount before the Court as determined by the Referee Court. If the excess amount is deposited in accordance with the Khyber Pakhtunkhwa amendment then no interest shall be levied on the excess amount but in case of failure the Land Acquisition Collector or the beneficiary of acquisition to deposit the excess amount before the Referee Court, they may not be absolved from the payment of interest thereon. No doubt the payment of amount of interest under section 28 of the Land Acquisition Act, 1894 is discretionary and the Court may pass an order by exercising the discretion judiciously .
4. Similarly section 34 of Land Acquisition Act, 1894 amended by the Khyber Pakhtunkhwa provide that when the amount of compensation is not paid or deposited on or before the taking possession of the land, the Collector shall pay the amount awarded with simple interest thereon @ 6% per annum from taking possession, until it shall have so paid or deposited. The language of Khyber Pakhtunkhwa amended section 34 of the Act of 1894 provide in mandatory terms that the Collector shall pay the amount of compensation with interest which shall be calculated from the date of taking possession of the land by Collector until the excess amount is paid or deposited.
5. It is clear than crystal from the language of above quoted both sections 28 and 34 of the Land Acquisition Act, 1894, that when the amount is enhanced by the Referee Court and the same is not paid or deposited in the Court then under section 34 six percent interest per annum from the time of taking posse ssion until it is paid or deposited in Court shall be paid to the land owners. In such an eventuality the amendment in section 28 of the Land acquisition Act, 1894 will not absolve the Collector or beneficiary of acquisition from payment of interest on the non- deposited enhanced/excess amount. Perusal of record reveals that the enhance d amount is neither paid to the land owners/ decree holders nor it is deposited in the Court. In such eventuality the land owners are entitled for the receipt of 6% interest on the excess till the amount of compensation, until it is either paid or deposited in the concerned Court.
6. The learned Executing Court has misconceived the law on the subject while refusing the payment of interest @ 6%, per annum on the excess compensation amount vide the impugned judgment dated 16.12.2019 which is not sustainable under the law. Resultantly , this appeal is accepted. The impugned judgment to the extent of declining the 6% interest on excess amount determined by the Referee Court is set aside and the appellants are held entitled to 6% interest per annum with effect from the date of taking over posse ssion till deposit of the excess amount in the Court or payment to the land owners.