' For a proper appreciation of the points involved in this appeal, it is necessary to refer to the relevant facts in some detail.
2. The Sikni land bearing C.S. Nos. 308 and 309, measuring 6-36 acres, situated in deh Sari, Taluka Hyderabad (Sindh), belonged to the respondents which was acquired by the WAPDA (Power Wing) for the purpose of construction of WAPDA Colony. The requisite notification under section 4 of the Land Acquisition Act, 1894, was issued on 13-6-1975. It is alleged by the respondents that notices under section 9 of the Land Acquisition Act, 1894, were not served upon them who were systematically, kept in dark and the award was announced at their back by which they were allowed compensation at the rate of Re.1/ per square foot plus compulsory acquisition charges.
The damages claimed by them in respect of brick-kilns, tube-wells etc. Were also not awarded. It is the case of the respondents that at the time of compulsory acquisition of the land there were brick-kilns, huts, tube-wells, trees and an office of the Manager of the respondents on this land. The brick-kilns were in operation which were demolished after taking over the possession. The Collector-cum-Land Acquisition Officer was then requested to make a reference to District Court in terms of section 18 of the Land Acquisition Act, 1894, for proper determination of the amount of compensation of the land and damages incurred to the respondents. No reference was, however, made which compelled the respondents to invoke constitutional jurisdiction of this Court by filing C.P. No,D-25 of 1983, which was allowed with the following order:-- "We declare the impugned order and or action of the respondent No,1 to be without lawful authority and direct the respondent No,1 that he should refer the matter to the Court under section 18 of the Land Acquisition Act for determination of the petitioners' objection to the award."
' It is in these circumstances that a reference under section 18 of the Land Acquisition Act, 1894, was made.
3. The parties went to trial on the following issues:-- "(i) Whether the compensation awarded by the defendant is inadequate?
(ii) Whether the award is not in accordance with law?
(iii) What should the order be?"
4. The respondents examined Muhammad Panah, Senior Clerk (P.W.1), Allandad (P.W.2), Syed Junaid Ahmed Hashmi (P.W.3), S. Wilayat Ali (P.W.4), Syed Badi-ul-Hassan Zaidi (P.W.5), and Syed Shakir Ali Jafferi (P.W.6), while the appellant examined Abdul Majeed Shaikh (D.W.1).
5. On the assessm ent of evidence, both oral as well as documentary, the learned 1st Additional District Judge, Hyderabad, allowed the reference vide judgment dated 14-7-1987, and held that the respondents are entitled to:-- "(i) Compensation of the land in question at the rate of Rs,7 per sq. Foot.
(ii) Compulsory acquisition charges at 15% per annum.
(iii) Interest from the date of possession at 6% per annum.
(iv) Amount of damages for brick-kilns, etc. Amounting to Rs,7,23,000.
' It is in these circumstances that the present appeal has been filed under section 54 of the Land Acquisition Act 1894. During the pendency of appeal the respondents have also filed cross- objections claiming additional compensation under section 28-A of the Land Acquisition Act, 1894.
By this judgment I propose to dispose of the appeal as well as cross-objections.
6. I have had the benefit of very careful arguments on both the sides. I have also gone through the record of this case carefully.
7. There is overwhelming evidence on record to prove that the land in dispute was a valuable property ideally suited for a housing project. Sycd Shakir All Jafferi (P.W.6) as his own witness has testified about the surroundings of the land. He has also stated on oath that Yasrab Colony and Salma Colony, situated near the land in dispute were existing when the said land was compulsorily acquired. His evidence also shows that necessary amenities of life were available on this land and he in fact wanted to float a "Housing Project" when this resumption of land took place. Sycd Junaid Ahmed Hashmi (P.W.2), and Syed Badi-ul-Hassan Zaidi (P.W.5) who are architects by profession have supported the version of Syed Shakir Ali Jafferi (P.W.6) in this behalf. The land in dispute is not only situated near Hyderabad-Kotri Road, but it was ideally suited for a building project and it was obviously for this reason that it was acquired compulsorily for the purpose of construction of WAPDA Colony. At page 3 of the award the Land Acquisition Officer has himself observed that the land in dispute is situated in between WAPDA Colony and Hyderabad-Kotri Road, within the limits of Hyderabad Municipal Corporation. The perusal of the award also shows that this land was treated as building site for all practical purposes.
8. Syed Shakir Ali Jafferi (P.W.6) who is one of the respondents in this case has produced certified copy of a letter sent by City Mukhtiarkar Hyderabad to Land Acquisition Officer WAPDA Hyderabad (Exh.59), dated 31-1-1975 by which the rates of lands situated in Dch Gidu Bunder, Taluka Hyderabad were conveyed. The letter of Additional Deputy Commissioner, Hyderabad, dated 7-7- 1976 (Exh.60), letter of Assistant Commissioner, Hyderabad, dated 5-7-1976 (Exh.61), and schedule of rate of lands in Shah Lateefabad, Hyderabad (Exh.62) also throw light about the market value of SIKNI lands situated in the vicinity. The certified copy of the judgment passed by 1st Additional District Judge, Hyderabad on 26-9-1982 (Exh.65) is also on record by which compensation in respect of the adjoining land acquired for the purpose of construction of WAPDA Colony in the year 1974, was allowed at the rate of Rs,6 per sq. Foot. The certified copies of the sale-deeds (Exhs.76, 77 and 78) entered into during the year 1976 are also placed on record to show the market value of the properties situated in the vicinity. On the strength of the above documentary evidence and the evidence of respondent Syed Shakir All Jafferi (P.W.6), which remained unshaken in cross- examination, the learned Additional District Judge awarded the compensation at the rate of Rs,7 per sq. Foot.
9. Mr. Abdul Hameed Khan, learned counsel for the appellant has with great energy put before me reasons for disbelieving the witnesses examined by the respondents. He has further submitted that mere production of copies of registered sale-deeds in evidence without examining some parties of sale-transaction was entirely insufficient. As to first of his contentions, I have carefully read the evidence of all the witnesses examined by the respondents and I think his criticism is unsound and there is no reason for disbelieving them, specially when their evidence gets support from the bulk of documentary evidence. As to the second contention reliance is placed upon the case of Government of Sindh and 2 others v. Muhammad Usman and 2 others reported in 1984 CLC 3406 which appears to lend some colour to this contention. The learned counsel for the appellants has, however, lost sight of the fact that no objection was raised about these sale-deeds when they were exhibited before the trial Court, and in view of decision reported as Government of Pakistan v.
Hamid Akhtar PLD 1987 Azad Jammu and Kashmir 95 this objection cannot be taken at the appellate stage. However, even if these sale-deeds are excluded from the evidence there still remains satisfactory evidence to prove this aspect of the case.
10. In order to determine the amount of compensation to the persons who are deprived of an interest in lands market value may be assessed by taking into consideration the price paid for comparable property in the neighbourhood. The potential value viz. The value on account of use, to which the land may be put in future is also a relevant consideration in making such assessment.
The cases reported as Deputy Commissioner v. Raja Amir Zaman and others PLD 1985 Kar. 385; Fazalur Rehman and others v. General Manager S.I.D.B. And another PM 1986 SC 158; Jan Muhammad and others v. Deputy Commissioner, Karachi PLD 1986 Kar. 164; MRs, Gunj Khatoon and another v. The Province of Sindh, through Secretary, Revenue Department, Karachi and another 1987 SCMR 2084; Malik Aman and others v. Land Acquisition Collector and others PLD 1988 SC 32 and Muhammad Ibrahim and 3 others v. Province of Sindh and another 1991 MLD 90 arc clear on this point.
11. The judgment of the learned Additional District Judge is challenged mainly on the ground that no notice under section 20 of the Land Acquisition Act, 1894, was issued to WAPDA for which the land in question was acquired and consequently the whole proceedings are coram non judice.
Section 20 of the Land Acquisition Act, 1894, prescribes the following procedure to be followed after the receipt of reference:-- "The Court shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely:-
(a) the applicant;
(b) all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded and
(c) if the objection is in regard to the area of the land or to the amount of compensation, the Collector and the Department of Government, local authority or Company as the case may be, for which land is being acquired."
Admittedly the Collector-cum-Land Acquisition Officer had the notice of this reference which was seriously contested. The Water and Power Development Authority is a statutory authority and it is not a department of the Government. It is also not a company within the meanings of section 2(8) of the Companies Ordinance, 1984. The Water and Power Development Authority also does not fall within the definition of section 3(28) of the General Clauses Act, 1897 and section 2(35) of the Sindh General Clauses Act, 1956 as adapted. The local authority as defined by General Clauses Act, 1897, means a Municipal Committee, District Board, Body of Port Commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund. Section 23 of the West Pakistan Water and Power Development Authority Act, 1958, whereby the WAPDA is deemed to be a local authority under the Local Authorities Loans Act, 1914, for a limited purpose, also does not change the status of WAPDA. The definition of local authority as given in section 2(vi) of the West Pakistan Water and Power Development Authority Act, 1958 is again self-explanatory. On all the above scores, therefore, the WAPDA was not entitled to any notice in terms of clause (c) of section 20 of the Land Acquisition Act, 1894.
12. The intention behind section 20 of the Land Acquisition Act, 1894 appears to allow the departments of Government, company and the local authority to join the proceedings before the Court in reference for the purpose of determining compensation. The case of I.C.I. Pakistan Manufacturers Ltd. v. Salahuddin and 3 others reported in 1988 MLD 980, which was decided by a Division Bench is a direct authority on this subject. Bearing the above object of notice under section 20 of the Land Acquisition Act, 1894, in mind, I shall endeavour to find out if the WAPDA was condemned unheard and any prejudice was caused to it. Admittedly the WAPDA was a party in the Constitutional Petition No,D-25 of 1983, decided by this Court (Exh.94), on the basis of which the reference out of which this appeal has arisen was sent to District Court Hyderabad. The Land Acquisition Officer is again as employee of WAPDA and I am not prepared to believe that the WAPDA authorities were unaware about these proceedings. Under these circumstances even if the notice had not been served upon the WAPDA under section 20 of the Land Acquisition Act, 1894, it would not stand in the way of the Court in granting the relief that it has granted. My attention has also been invited to a case decided by a Division Bench, which is reported as Ilyas Ali Khan alias Muhammad Ilyas v. WAPDA 1988 MLD 2094, in which following pertinent observations were made:-- ' To assail the appeal on the ground that the learned Senior Civil Judge failed to give notice under section 20 of the Land Acquisition Act, 1894, to the Collector, would be in like manner inconsequential. The decision rendered in Muhmmad Abdul Majid Khan and others case would not support the extreme view that the entire proceedings before the learned Senior Civil Judge and also the present appeal would fall for this omission.
13. Mr. Abdul Hameed Khan, learned counsel for the appellant has placed reliance upon the case of Muhammad Abdul Muid Khan etc. v. Land Acquisition Officer-cum-Collector and WAPDA, reported in 1987 CLC 542 wherein a learned Single Judge of this Court had examined the provisions of section 20 of the Land Acquisition Act, 1894, although in different context. In that case the reference was rejected by the Court mainly on the ground of non-impleading Government of Sindh as party and it was in that context that the following observations were made:-- "However, it is unfortunate that the learned Judge instead of amending his own mistake and omission to issue notice to the WAPDA should have resorted to the dismissal of the suit for the alleged non-joinder of the party."
14. The main grievance ventilated by learned counsel for the appellant about the non-compliance of the provisions of section 20 of the Land Acquisition Act, E 1894, is feeable, and thus lacked the vigour as well.
15. 1 now proceed to examine the question of damages caused to respondents on account of demolition of brick-kilns, tube-wells, hutments and other installations. Allandad (P.W.2) who was serving as Revenue Surveyor, Syed Junaid Ahmed Hashmi (P.W.3) who is an architect by profession, Syed Wilayat Ali (P.W.4) who had taken pleas of brick-kilns and Syed Badi-ul-Hassan Zaidi (P.W.5) who is also an architect have supported the version of Syed Shakir Ali Jafferi (P.W.6). Syed Junaid Ahmed Hashmi (P.W.3) had in fact prepared the valuation certificate (Exh.46) in respect of brick- kilns, tube-wells, hutments and other installations and according to his estimate they were valued at. Rs,7,23,000. There is nothing on record to prove it otherwise. The then Land Acquisition F Officer who has given the award found these installations at the site, but he was of the view that they were abandoned. He was, however, not examined and instead Abdul Majeed Shaikh (D.W.1) who knows nothing about this transaction was put in the witness box. The finding of the learned Additional District Judge on this point is also unexceptionable.
16. I now address myself to the questions raised in cross-objections. It is contended on behalf of the respondents that the learned Additional District Judge acted illegally by not taking note of the newly-added section 28-A of the Land Acquisition Act, 1894. This section was added by Sindh Ordinance No,XIII of 1984, in the following words:--- "28-A. Additional compensation. In addition to the compensation fixed on the basis of market value as prevailing on the date of notification under section 4, an additional amount of fifteen per cent.Per annum of the compensation so fixed shall be paid from the date of notification under section 4 to the date of payment of the compensation."
This is a beneficial legislation and will apply to all pending matteRs, In the case of Province of East Pakistan v. Muhammad Hussain Mia reported in PLD 1965 SC 1, it was held that on the filing of an appeal the entire matter re-opens and has to be decided in accordance with the prevailing law. It was again held in the case of Muhammad Ayub etc. v. Muhammad Yaqoob and another reported in PLD 1975 Lah. 445 that subsequent events including amendment in legislation which occur during pendency of action can be taken into consideration. The cases reported as Deputy Commissioner, Karachi, East v. Mehrab and others 1988 CLC 1119 and Muhammad Ibrahim and 3 others v. Province of Sindh and others 1991 MLD' 90 are direct authorities on this subject, in the last cited judgment it was held by this Court that, "It may be added that this newly-added provision of law is for the benefit of affected persons and according to Bindras' Interpretation of Statutes, in interpreting such a statute, the principle established is that there is no room for taking a narrow view but the Court is entitled to be generous towards persons on whom the benefit has been conferred."
' I would, therefore, allow this additional benefit to respondents in terms of section 28-A of the Land Acquisition Act, 1894.
17. In the result the appeal fails and is dismissed with costs. The cross-objections are allowed with costs. As a necessary corollary to this finding C.M.A. No,1021 of 1987 is dismissed.