1. NASIR-UL-MULK, J.---By this single judgment it is proposed to dispose of R.F.As. Nos.58/94, 71/94, 72/94, 73/94, Cross Obj. No,7/95, R.F.A. No,74/94, Cross Obj. 4/95 in R.F.A. No,74/94, R.F.A. No,75/94, Cross Obj. 6/96 in R.F.A. No,75/94, R.F.A. No,76/94, Cross Obj. 3/95 in R.F.A. No,76/94, R.F.As. Nos.70, 77, 78 of 1994, Cross Obj. No,2/95 in R.F.A. No,78/94, R.F.As. Nos.79, 81, 82, 83, 84 of 1994, Cross Obj.
2. No,5/95 in R.F.A. No,84/94 and R.F.A. No,96 of 1994, as they arise out of the same Award No,213 dated 6-2-1993, as rectified by Award No,215 dated 15-2-1993, drawn by the Land Acquisition Collector, Mardan in respect of land measuring 222 Kanals 7 Marlas situate in village Sheikh Yousaf, Tehsil Mardan acquired by the Government of N.-W.F.P. For the benefit of WAPDA Scarp for the remodeling of Narai Drain in Mardan Scarp Project.
3. 2.Notification under section 4 of the Land Acquisition Act, 1894 (hereinafter called "the Act") was issued by the District Collector, Mardan on 5-12-1991, followed by a declaration under section 6 of the Act by the Additional Commissioner on 21-4-1992.
4. 2.After hearing the interested parties and complying with all the legal formalities the Collector, Land Acquisition in the Award No,213 fixed the compensation as follows:-- Rs,768.38 per Marla for Shah Nehri land, corrected to Rs,829.88 per Marla in Award No,215; Rs,197.09 per Marla (1/4th of Shah Nehri land) for Ghairmumkin land, corrected to Rs,207/47 per Marla in Award No,215; and 15% compulsory acquisition charges under section 23(2) of the Act plus 6% interest under section 34 of the Act with effect from 11-2-1992.
5. On the basis of the above criteria and rates the total compensation was computed as under:-- Cost of Shah Nehri land measuring 214 Kanals 12 Marlas @ Rs,829.18 per Marla. Rs,35,61,844.96 Cost of Ghairmumkin land measuring 7 Kanals 15 Marlas Rs,207.47 per Maria. Rs, 32,157.85 Total Rs,35,94,002.81 Compulsory acquisition charges at the rate of 1% Rs, 5,39,100.42 Interest (4, 6% w .e. f. 11-2-1992 to 30-1-1993 (11 months) Rs, 1,97,670.15 Total Rs,43,30,773.28 3.Most of the owners, 13 in number filed objection petitions under section 18 of the Act, which were referred to the District Judge, Buner at his Camp Court at Mardan. The objectors claimed enhancement of compensation at varying rates, with the maximum of Rs,6,000 per Marla. The Land Acquisition Judge by a consolidated judgment dated 9-6-1994 disposed of all the objection petitions enhancing the rate of compensation to Rs,1163.65 per Marla for Shah Nehri land and Rs,300 per Marla for Ghairmumkin land. The compulsory acquisition charges under section 23(2) of the Act was increased from 15% to 25%. It was further directed that 6% simple interest per annum shall be payable on the enhanced amount from the date of possession till payment. The judgment and decree of the Land Acquisition Judge has now been challenged in various matters before us.
6. These matters can appropriately be divided into three groups; (a) appeals filed by the Government against enhancement; and the connected appeals filed by the respondent owners for further enhancement; (b) appeals filed by the Government against enhancement in which the owners respondents have filed cross-objections, and (c) appeals filed by the Government against some of the owners who have neither filed a cross-appeal nor a cross-objection.
7. 4.On behalf of the owners the contention of their counsel was that the Collector had not given any reason for fixing the rate of compensation whereas the Land Acquisition Judge has erred in making the one year average at the time of declaration under section 6 the basis of his assessment and totally excluding the one year average around the period of notification under section 4 of the Act, which was the relevant basis for assessment. As to the objection by the Government regarding enhancement of compulsory acquisition charges under section 23(2) of the Act from 15% to 25% the argument was that WAPDA, being a company as defined under section 3(e) of the Act having been incorporated by Act of Parliament, namely, the WAPDA Act, 1958, it was liable to pay 25% compulsory charges.
8. 5.On behalf of the Collector Land Acquisition, WAPDA and Government of N.-W.F.P., it was submitted that the rate of compensation was unjustifiably enhanced as per statement of R.W.1, Mian Aziz Ahmad, S.D.O., WAPDA Scarp, Mardan, the acquired land was a waste and barren land adjoining the drain of which remodeling was required. Regarding enhancement in the compulsory acquisition charges, the learned counsel contended that higher rate was inapplicable in the present case as WAPDA was not a company and the land was acquired for public purposes.
9. 6.On behalf of the objectors Patwari Halqa of village Sheikh Yousaf was examined as 0.W.1. He produced before the Land Acquisition Judge the price of the land in the village on the basis of one year average for the period 5-12-1990 to 5-12-1991 (Exh.
10. 0.W.1/1) from ten transactions entered into during the said period. Rs,2,417.72 per Marla was the average price deduced from these transactions. On the direction of the Court the witness produced the one year average preceding 5-12-1990 and similar averages for the two years subsequent to 5-12-1991. According to the information provided by the witness the one year average between 5-12-1989 to 5-12-1990 (Exh.O.W.1/X) was Rs,530.04 per Marla, for the year 21-4- 1991 to 21-4-1992 (Exh.O.W.1/X-C) was Rs,1,163.65 per Marla and for the period between 6-2-1992 and 6-2-1993 (Exh.O.W.l/X-C) was Rs,639.40 per Marla. The Acquisition Judge fixed the price according to the one year average for the period 21-4-1991 to 21-4-1992 (Exh.O.W.1/X-C) on account of its proximity to the date of declaration under section 6, that is 21-4-1992 and discarded the average price at the time of notification under section 4 of the Act on the ground that the award was drawn on 6-2-1993, 14 months after the notification under section 4.
11. 7.The market value of the land, in determining the amount of compensation is to be assessed according to section 23, subsection (1) clause first at the date of publication of the notification under section 4, subsection (1) of the Act. This clause was substituted for the earlier clause by Land Acquisition Amendment Act, 1923 (Act 38 of 1923) which provided for determining of the market value of the land acquired on the date of declaration under section 6 of the Act. The relevant date for assessm ent according to the statute is therefore that of notification under section 4 and not declaration under section 6. The reasons given by the Judge Land Acquisition for taking the market value on the date of declaration under section 6, namely that award was drawn 14 months after the notification under section 4, runs contrary to the statutory provision. The slump in the prices, subsequent to the one year average at the date of notification under section 4 would be relevant factor in determining its potentiality but not for the purpose of laying the foundation in determining the market value of the land. No good reason has been advanced for discarding the market value of the land on the date of notification under section 4. Some suggestions were made to the Patwari Halqa in the cross-examination regarding entries of fictitious transaction at exhorbitant price preceding the notification under section 4 in order to artificially rise the one year average but the witness showed his ignorance and the suggestion was not subsequently substantiated by evidence.
12. 8.The above-discussion leads us to conclude that the one year average as determined in Exh.O.W.1/1, preceding the date of notification under section 4 is to be taken as the market price of the land for determining the compensation. The one year average however does not make any distinction between Shah Nehri and Ghairmumkin land. No separate assessment has been made for the Ghairmumkin land, though the first three transactions mentioned in Exh.O.W.1/1 is for purchase of land for construction purposes. The Collector, Land Acquisition as well as the Judge Land Acquisition have fixed 1/4th of Shah Nehri land to be the market value of Ghairmumkin land.
13. We would also follow the same formula for two reasons; firstly, neither of the parties before us objected to this mode of determination and secondly it would merely prolong the agony of the parties to remand the case for this purpose as the amount involved is insignificant, for the Ghairmumkin land constitutes 7 Kanals and 15 Marlas out of the total of 222 Kanals 7 Marlas acquired.
14. 9.The next question that falls for determination is the amount of compulsory acquisition charges to be awarded under section 23 (2) of the Act. The Judge Land Acquisition had enhanced it to 25% from 15% awarded by the Collector. The reason for the change that prevailed with the Judge was that WAPDA, for whom the land was acquired, was a Company and therefore liable to pay the higher rate of compulsory acquisition charges. It would be appropriate to reproduce subsection (2) of section 23 as amended by the Land Acquisition (West Pakistan Amendment) Ordinance (49 of 1969), which runs as under:-- "(2) In addition to the market value of the land as above provided, the Court shall award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition, if the acquisition has been made for public purpose and a sum of twenty-five per centum on such market value if the acquisition has been made for a company."
15. It will be seen from the above provision that when the acquisition is for public purpose the rate of compulsory acquisition charges is 15% of the market value but where the acquisition is for a company the rate is enhanced to 25%. Company has been defined for the purpose of the Act under section 3, clause (e) as follows:-- "(e) the expression 'Company' means a Company registered under the Indian Companies Act, 1882, or under the (English) Companies Acts, 1862 to 1890, or incorporated by an Act of Parliament (of the United Kingdom) or by any Pakistan Law, or by a Royal Charter of Letters Patent and includes a Society registered under the Societies Registration Act, 1860, and a registered society within the meaning of the Co-Operative Societies Act, 1912,"
16. There is no dispute that WAPDA (Water and Power Development Authority) is not a company registered under the Companies Act but the contention on behalf of the owners was that it was a company incorporated by a law in Pakistan and therefore fell within the meaning of company given in section 3 clause (e) of the Act. It is true that WAPDA was established under the Pakistan Water and Power Development Act (Act 31 of 1958) and section 3 thereof provides for the establishment of the Authority which shall be a body corporate having its perpetual succession and common seal. The same question arose before the Lahore High Court in Muhammad Mushtaq Ahmad Khan v. Assistant Commissioner, Sialkot (PLD 1983 Lahore 178) and it was held that since WAPDA was a body corporate incorporated by an Act of Parliament and entitled to acquire and hold property, have a perpetual succession and a common seal it was body incorporated by a Pakistani law and therefore a Company within the meaning of section 3 (e) of the Land Acquisition Act. There is no reason to differ from this view. We would, therefore, agree with the determination made by the Lahore High Court and hold that WAPDA is a "Company" under section 3 (e) for the purpose of Land Acquisition Act.
10. That however does not settle the controversy in that by holding WAPDA to be a Company, will it be obliged to pay compulsory acquisition charges at the rate of 25% of the market value under subsection (2) of section 23 of the Land Acquisition Act. Prior to the amendment brought about by Ordinance 49 of 1969 in the subsection, 15% acquisition charges were payable on all kinds of acquisition. It is by virtue of the amendment that different rates were fixed for land acquired for public purposes and For company. By the same amending Ordinance an amendment was also brought about in section 4 of the Act and the previous provision that the land could be acquired if needed for any public purpose an addition was made that acquisition could also be made for a company. The need of the company was made alternative to the need for any public purpose.
17. Thus land may be acquired for a company which is not directly for a public purpose although it may have some public utility. It is common knowledge that lands are acquired for public companies to establish commercial industrial units. Such acquisition would not strictly fall within the meaning of public purpose but may have indirect benefit to the public. Under section 23 (2) of the Land Acquisition Act, acquisitions for public purpose and company had been made alternative for the purpose of fixation of compulsory charges. But the two purposes however may not be mutually exclusive. There may be acquisition of land which may fit into both purposes; land may be acquired for a company but at the same time for a purely public purpose. In that situation the determinative factor for fixing compulsory acquisition charges would be the public purpose, for two reasons. Firstly, before the amendment in the Land Acquisition Act by Ordinance 49 of 1969 when compulsory acquisition was restricted to public purpose the rate of compulsory acquisition charges under section 23 (2) was 15%. It was only through the amendment that the land could be acquired for company under section 4 and corresponding addition was made to section 23 (2) when the rate for compulsory acquisition for land acquired for a company was fixed at 25%. It could thus be inferred that the raise to 25% was restricted to lands that were acquired for public purposes. Secondly, there is a rational behind fixing a lower rate for land acquired for public purposes as public directly benefit from such acquisition whereas it would be justified to charge higher rates from companies engaged in commercial activities.
18. 11.The question as to whether the land acquired for WAPDA is for a public purpose is answered by subsection (3) of section 13 of the WAPDA Act, 1958 which provides that land acquired for the Authority shall be deemed to be an acquisition for a public purpose within the meaning of the Land Acquisition Act, 1894. There is, therefore, a statutory declaration that land acquired for WAPDA shall be considered to have been acquired for a public purpose. Even on facts the land has been acquired for a public purpose namely the remodelling of a drain in Mardan Skarp Project, which is for the benefit of the people of the village wherein the land has been acquired.
19. 12.Thus we hold that though WAPDA is a Company but since the land in question has been acquired for a public purpose the land owners are entitled to 15% compulsory acquisition charges under section 13 (2) -of the Land Acquisition Act. To that extent the findings of the Judge Land Acquisition require reversal.
20. 13.The net result of the foregoing discussion is that R.F.A. No,58 of 1994 filed by Haji Fateh Khan etc. And R.F.A. No,71 1994 preferred by the Government against Haji Fateh Khan are partially allowed with the result that the judgment and decrees of the Land Acquisition Judge as well as the award of Collector is modified to the extent that Rs,2,417.72 per Marla, being the one year average for the period 5-12-1990 to 5-12-1991, is fixed as compensation for Shah Nehri land and one-fourth of that amount, namely Rs,604.48, for Ghairmumkin land. The compulsory acquisition charges are reduced from 25% to 15%. The parties are left to bear their own costs.
21. Above are the reasons in support of our short order dated 29-10-1996.