' QAZI EHSANULLAH QURESHI, J.---Briefly narrated facts of the case are that certain land situated in Mauza Dhamtaru, Tehsil and. District Abbottabad, measuring 28 Kanals, 5 Marlas, was acquired by the Collector:- Land Acquisition, Abbottabad for P.I.A. Shaver Polutry Breeding Farms Ltd. The notification under section 4 of the Land Acquisition Act, 1894 was issued in this respect on 28-3- 1978 and an award under section 11 of the aforesaid Act was declared on 19-5-1978 followed by notification under section 17 of the Act ibid on 28-5-1978. Possession of the acquired land was taken on the spot on 18-8-1978. The Collector relying on the report of Tehsildar, Abbottabad dated 6-2-1979 assessed the prices of the acquired land basing on one year average as under:-- ' Bari .............................................................. Rs,13,125 per Kanal.
' Maira/Kund ............................................... Rs,4,305 per Kanal.
' Ghair Mazrooha ....................................... Rs,105 per Kanal.
' The Collector further allowed 8% compound interest from 18-8-1978 to 3-3-1979 and 28-3-1979 to 18-5-1979. He further allowed the costs of improvement as under:-- ' Cost of land ............................................................................. Rs, 1,74 ,683 25 ' Cost of house/gowel ............................................................... Rs, 37,550 ' Cost of fruit trees' Rs, 66,405 ' Cost of fruitless trees .............................................................. Rs, 7,876 ' 15% acquisition charges'........................................................ Rs, 42,977 Total:Rs,3,29,491.25
2. Muhammad Farid Khan now the appellant being not satisfied with the abovesaid assessment and the price of the acquired land, filed objection petition under section 18 of the Act which the Collector together with his own statement under section 18 ibid referred the matter to the Referee Court for adjudication. The Additional District Judge, Abbottabad in the capacity of Acquisition Judge took congnizance of the case, framed as many as eight issues out of the pleading of the parties, pro and contra evidence recorded and finally reviewing the assessment of Land Acquisition Collector fixed the flat rate of acquired land at the rate of Rs,18,000 per Kanal alongwith compulsory acquisition charges etc. Vide his judgment dated 24-5-1992. Muhammad Farid Khan still being aggrieved from the above enhanced rate declared by the learned Referee Court preferred an Appeal No,80/92 under section 54 of the Act ibid while respondent P.I.A. Shaver Poultry Breeding Farms Ltd. Have also come in Appeals Nos.82/92 and 83/92 against Muhammad Farid Khan and Muhammad Akram respondents challenging the judgment and decree of the Acquisition Judge. Syed Anwar Ali Shah also co-sharer in the acquired land who had not filed any regular reference'under section 18 of the Act but being impleaded as respondent in the objection petition filed by appellant Muhammad Farid Khan, taking advantage of the judgment dated 25-4-1992 of the Referee Court passed in favour of Muhammad Farid Khan, instituted an execution proceedings in the Executing Court for the receipt of enhanced price in view of the above judgment which was, however, refused by the Executing Court on the ground that Syed Anwar Ali Shah had not submitted any reference petition regarding compensation. He had also come in Appeal No,8/92 against the order of the Executing Court. Since the matters impugned arise out of the same judgment, hence all the appeals are disposed of through this single judgment to be recorded in Appeal No,80/92 by Muhammad Farid Khan.
3. Learned counsel for the appellant submitted that the notification under section 4 of the Land Acquisition Act was issued on 28-3-1978 by respondent No,1 for acquisition of property for P.I.A.
Shaver Poultry Breeding Farms Ltd., a notification under section 17 of the Act ibid was issued by the Commissioner, Hazara Division, Abbottabad on 27-5-1978, the award was declared on 19-5-1979 vide which the market value of the suit land was assessed as per classification mentioned above.
Similarly since after the settlement of 1948 the kind of land was improved, the compensation of improvements was also fixed as above.
4. Learned counsel for the appellant(s) contended that the learned Referee Judge had held that the nature of the land had been changed from agricultural to commercial hence it was incumbent upon the Land Acquisition Collector that the assessment should have been made in view of the market value of the suit land. Furthermore the purpose for which the land was acquired is construction of Poultry Farm. Thirdly that the learned lower Court had not taken into consideration the price of the land in the neighbourhood. The entire area had become commercial because of the poultry project which prices shoot up to Rs,50,000 per Kanal. The price of the improvements regarding the houses and trees were also assessed at a very low rate.
5. Refuting the contentions of the learned counsel for the appellants, learned counsel for respondent No,1 submitted that the Land Acquisition Collector has rightly classified the kind of land and correctly assessed the market value of the property and compensation for the improvements; that the acquired land is situated in the lonely place and also at sufficient height on AbbottabadNathiagali Road. There was no approach/road from the main road to the acquired land. The village Abadis are also located at a distance of 5 furlongs from the acquired land and keeping in view the isolated situation of the acquired land it was selected by the appellants for establishing Poultry Breeding Farms; that the acquired land is neither commercial nor had any potentiality. The findings of the lower Court that the acquired land is commercial area is misconceived and the lower Court had not applied its mind properly by ignoring the very exact and proper classification of the land in the light of the Revenue Record. The verdict of the lower Court by fixing compensation at the flat rate of Rs,18,000 per Kanal contrary to above classification is not supported by evidence on record.
6. We have heard Mr. Fida Muhammad Khan, Advocate on behalf of the appellants, Mr. Muhammad Younas Khan Tanoli, Advocate on behalf of respondent P.I.A. Shaver Poultry Breeding Farms Ltd. And Mr. Mushtaq Ahmad, Advocate for Syed Anwar Ali Shah.
7. The detail of the award declared by the Collector envisages that the total acquired land is.
Measuring 28 Kanals, 5 Marlas comprising of Khasra Nos.1435, 1436, 1437, 1438, 1439 and 1440 situated at village Dhamtaur Maira Gojra, out of which 6 Kanals 17 Marlas Bari, 19 Kanals 13 Marlas Maira and 1 Kanal 15 Marlas are Ghair Mazrooha. According to the said classification the Collector assessed the price as mentioned above which was reckoned by the Collector by accepting the report of Tehsildar, Abbottabad dated 6-7-1979 on one year average basis. The learned Referee Judge. After recording the evidence reached to the conclusion that the entire land has now changed its agricultural nature and has become almost a commercial area as the adjoining land is already in possession of respondent and meant for Poultry Farms. Mr. Fida Muhammad Khan, Advocate representing the appellants also invited our attention to one year average of similar land in the same vicinity for the period from 28-3-1977 to 28-3-1978 (Exh. PW2/2) whereby it is indicated that before the award in question the price of one Kanal land was at the rate of Rs,42,580. However, it is not clear that for what purpose it had been purchased/sold except for construction purposes.
We are reluctant to take into consideration Exh.OW2/2 as example test for further enancement of the acquired land in favour of the appellant at this stage as we are not sure as to whether the price mentioned in the mutations have been actually paid or not or the same had been incorporated to avoid pre-emption rights. The land admittedly was acquired for the benefit of th company and for commercial purpose so we would be satisfied with the flat adjusted rate fixed by the Referee Court at Rs,18,000 per Kanal ignoring the classification and improvements. The appellants are, however, entitled to receive 25% compulsory acquisition charges under section 23(2) of the Act instead of 15% compulsory Acquisition charges as allowed by the Collector and the Referee Court because the land in question had .Been acquired before the amendment in sections 28 and 34 of the Act by the amending Ordinance No,V of 1993 which has come into effect on 23-5-1993 and the appellants are as such entitled to the receipt of compound interest on the enhanced rate from the date of possession i,e, 18-8-1978 till 23-5-1983 and after that to 6%. The Appeals Nos.80 and 82 of 1992 are disposed of accordingly with the above modification.
8. Respondent Muhammad Akram Khan in R.F.A. No,83/92 did not come in appeal against the judgment and decree of the Referee Judge while P.I.A. Shaver Poultry Breeding Farms Ltd. Has impugned the judgment and decree but for the detailed reasons recorded aforesaid we would dismiss this appeal.
9. Now converting to F.A.O. No,8/92, Syed Anwar Ali Shah after the impugned award by the Collector .Under section 11 of the Act did not file any reference under section 18 of the Act nor preferred an appeal against the judgment and decree of the learned Referee Judge in case of Muhammad Farid Khan where he was made as respondent. But after refusal of enhanced rate in execution filed by him of the Referee Judge dated 25-4-1992, he has come in Appeal No,8/92. The learned counsel for the appellants contended in this respect that Mst. Zuhra Bibi the predecessor-in-interest of Syed Anwar Ali Shah was dead before the issuance of said notification by the Collector and that even at the time of award under section 11 on 19=5-1979 the appellant was not recorded as legal heir of Mst. Zuhra Bibi whose name was very much available on the Revenue Record. The inheritance mutation was subsequently attested in the year 1980 and thereafter Syed Anwar Ali Shah was entered as co-sharer in the property in question. So far filing of reference on the part of appellant is concerned, since in the reference filed by Muhammad Farid Khan, the appellant was party and decree and judgment was passed against Collector Acquisition, the relief and enhanced rate was given by the Referee Judge in connection with the same award in respect of the same filed so the execution in the matter on behalf of the appellant Syed Anwar Ali Shah was entertainable. He, however, apprised the Court that he had not received any compensation whatsoever regarding the acquired property. The compensation amount had been received by Muhammad Farid Khan without the consent of Syed Anwar Ali Shah in his absence and on his back.
A civil suit to this effect is already sub judice before Civil Court against Muhammad Farid Khan.
10. The learned counsel for the appellants further submitted that being co-sharer and joint owner in the acquired land in question they need not file reference under section 18 of the Act. He in his support referred AIR 1963 Punjab, 490 (V:50 c 138), which speaks: "Land Acquisition Act (1894), S-18--Acquisition of joint .Property -Co-owners not having any specified shares--The co-owners apply under section 18 and objecting to inadequacy of compensation -- Application deemed to be on behalf of all other co-owners are entitled to share the enhancement."
11. The learned counsel for the respondent refuting the arguments of the learned counsel for the appellant advanced that the appellant had not initiated reference under section 18 of the Act nor filed an appeal against the judgment of Referee Judge in the case of Muhammad Farid Khan, despite of the fact that he was respondent. He had now come in appeal after he was refused enhanced rate at par with Muhammad Farid Khan. In execution proceedings he stressed that in view of the situation explained above Syed Anwar Ali Shah had no cause of action nor locus standi.
Learned counsel for respondent placed reliance on PLD 1971 Azad J&K page 33.
12. Perusal of the file would reveal that reference under section 18 of the Act by Muhammad Farid Khan came up before the learned Referee Judge on 13-7-1979 for adjudication, whereby he claimed entire compensation alleging that he is sole and exclusive owner of acquired land in the reference and Mst. Zuhra Bibi was wrongly included in the award by the Collectors. Mst. Zuhra Bibi was impleaded as respondent No,3 who was proceeded against ex pane on 22-2-1980 having been not turned up even after substituted service and publication. After the evidence in the case was closed and when the case was fixed for orders on 25-3-1992, Syed Anwar Ali Shah on one fine morning turned up and submitted an application that he is the only legal heir of deceased Mst.
Zuhra Bibi vide attested Mutation No,7842 dated 12-7-1980 and applied before the Court for becoming a party in reference in hand. Application was contesied but ultimately was allowed by the Court vide order dated 28-3-1992. Syed Anwar Ali Shah was placed as respondent No,3.
However, S. Anwar Ali Shah himself opted that the case be decided on available record and he did not want to produce any evidence. Resultantly judgment was announced on 25-4-1992. Strange enough in the same judgment on page 2, it is observed by the learned Referee Judge thauSyed Anwar Ali Shah was impleaded as legal heir of deceased Mst. Zuhra Bibi (then respondent No,3) as she was expired long long ago, the fact transpired later on, so the ex pane order dated 22-2-1980 against Mst. Zuhra Bibi was seraside, since the same was void and illegal. In issue No,2 and additional issue No,1 the learned Judge held that Anwar Ali Shah who had been impleaded as respondent No,3 being heir of Mst. Zuhra Bibi is entitled to her entire share. Muhammad Farid Khan and respondent No,3 Anwar Ali Shah would, therefore, get-their due shares as per entitlement in the Revenue Record. In the relief the learned Judge declared that the petitioner Muhammad Farid Khan is entitled to the extent of his share of compensation at the rate of Rs,18,000 per Kanal irrespective of classification of the land discussed above alongwith other compulsory acquisition charges etc. The claim of the petitioner that respondent No,3 is not entitled for the compensation was dismissed.
13. The above findings of the learned Referee Judge are worth noting that in the first instance Syed Anwar Ali Shah was impleaded as party and he was held entitled for the share in the property owned by deceased Mst. Zuhra Bibi. In the judgment nowhere it is mentioned explicitly that enhanced rate of compensation is only meant for petitioner.' All the more judgment and decree passed in favour or against, it deems to be a judgment and decree for all the parties whether plaintiff or defendant, petitioner/respondent, both the parties are entitled to take benefit of result.
So, in our view the refusal by the executing Court not to grant enhanced compensation rate to the appellants due to the fact that they had not filed reference under section 18 of the Act is misconceived and against the norms of justice.
14. In this view of the matter PLD 1971 Azad J&K 33 is not at all applicable in this case as the facts and the legal proposition is quite distinguishable. We even otherwise approve the verdict laid down in AIR 1963 Punjab 490 wherein it is held that the joint property owners not having specified share applied under section 18 and objecting to inadequacy of compensation, such reference under section 18 of the Act deemed to be on behalf of all other co-owners and entitled them to share the enhanced rate. The principle enumerated therein is quite in consonance with the principle of natural justice, equality and good conscience and that too are applicable in the case in hand as the dispute in this case pertains to the joint property and joint owners in respect of the property wherein the shares had not been specified.
Accordingly appeal (F.A.O. No,8/94) filed by Syed Anwar Ali Shah is accepted. The impugned order dated 6-4-1994 is hereby set aside and the appellants are entitled for the enhanced compensation at the rate of Rs,18,000 per Kanal plus interest etc. As allowed in R.F.A. No, 80/92 'Muhammad Farid Khan v. Land Acquisition Collector'. Parties to bear their own costs.