' IRSHAD HASAN KHAN, C.J.---This common judgment shall dispose of Civil Appeals Nos.1157 of 1997 to 1167 of 1997 and Civil Petitions No,299-P of 1997, 311-P to 314-P of 1997, arising out of the consolidated judgment dated 29-10-1996, passed by a learned Division Bench of the Peshawar High Court, Peshawar in R.F.As. Nos.58 of 1994, 96 of 1994. 58 of 1994, 72 of 1994, 74 of 1994, 75 of 1994, 77 of 1994. 78 of 1994, 79 of 1994, 81 of 1994, 70 of 1994, 82 of 1994, 73 of 1994, 76 of 1994, 83 of 1994, 84 of 1994 respectively.
2. Brief facts are that the land measuring 222 Kanals, 7 Marlas situate in village Sh. Yousuf, Tehsil Mardan, was acquired by the Government of the N.-W.F.P. For the benefit of WAPDA/SCARP for remodelling of Narai Drain in Mardan SCARP Project. Notification under section 4 of the Land Acquisition Act, 1894 (hereinafter called the Act) was issued on 5-12-1991 by the District Collector, Mardan. Declaration under section 6 of the Act was issued on 21-4-1992 by the Additional Commissioner. The Land Acquisition Collector, Mardan gave his Award on 6-2-1993. He fixed the compensation of the acquired land as below:--
(i) Cost of Shah Nehri Land measuring 214 Kanals, 12 Marlas @ 829.18 per Marla.(Rs,35,61,844.96)
(ii)Cost of Ghair Mumkin land measuring 7 Kanals; 15 Marlas @ Rs,207.47 per Marla.(Rs,32,157.85) Total: Rs,35,94,002.81 (iii)Compulsory acquisition charges at the rate of 15%. (Rs,5,39,100.42)
(iv)Interest @ 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. Being dissatisfied with the rate of compensation allowed by the Land Acquisition Collector, most of the owners of acquired land filed objection petitions under section 18 of the Act, which were referred to the District Judge, Buner at his Camp Court, 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 enhanced the rate of compensation to Rs,1,163.65 per Marla for Shah Nehri and Rs,300 per Marla for Ghair Mumkin land. The compulsory acquisition charges under section 23(2) of the Act were increased from 15% to 25% on the ground that WAPDA being a "Company" within the contemplation of "Company" under section 3(e) of the Act was liable to pay 25% compulsory acquisition charges. It was further directed that 6% simple interest, per annum shall be payable on the enhanced amount from the date of possession till payment. This judgment and decree of the Land Acquisition Judge was challenged by both the parties through various Appeals and Cross-Objections before Peshawar High Court, Peshawar. The Peshawar High Court by its judgment dated 29-10-1996, partially allowing appeal filed by the Government against Haji Fateh Khan/respondent herein, modified the judgment and decree of the Land Acquisition Judge as well as Award of the Collector to the extent that Rs,2,417.72 per Marla being one year's average for the period from 5-12-1990 to 5-12-1991 was fixed as compensation for Shah Nehri Land and one-fourth of that amount, namely, Rs,604.48 for the Ghair Mumkin land. The rate of compensation was enhanced by the High Court on the ground that the relevant date for assessm ent, according to the statute, is date of Notification under section 4 and not of Declaration under section 6 of the Act, therefore, the reasons given by the Land Acquisition Judge for taking market value on the date of Declaration under section 6, fourteen months after the notification under section 4, runs counter to the statutory provision. The Government of N.-W.F.P. And Land Acquisition Collector, not satisfied with the judgment and decree of the Peshawar High Court dated 29-10-1996, have filed these direct appeals as well as petitions for leave to appeal on, among others, the following grounds:-
(i) That High Court was legally not justified in allowing compensation by relying on one year average of sales of land (Exh.OW-3/2) effected during the period from 5-12-1990 to 5-12-1991 according to which the market price is shown as Rs,2,417.72 per Marla, when this average was quite rightly ignored by the Collector for the reason that it contained fictitious sales and parties to the transaction including in the said one year average were not produced in order to prove the genuineness or otherwise of the transaction which contention of the Acquiring Department was also upheld by the learned District Judge by ruling that it is not without substance.
(ii) That. High Court was not justified in holding that one year average as determined in Exh.O.W.1/1 Rs,2,417.72 per Marla was ignored by the Collector for good reasons and the learned Acquisition Judge also kept it out of consideration having found the contention of the Acquiring Department to be not without substance as amount of Rs,2,417.72 is about three times higher than the amount awarded by the Collector (Rs,829.88) and more than double the amount awarded by the Acquisition Judge (Rs,1,163.65) though the compensation has been assessed on one year average under section 6 of the Act and thus, the amount awarded by the High Court is not only excessive, judged by any standard, but the amount of the compensation so enhanced is most unreasonable and based on no evidence.
(iii) That the observation of the High Court to the effect that no good reason has been advanced for discarding the market value of the land on the date of notification under section 4 of the Act is based on conjectures and surmises and not on the evidence/other material borne on the record.
4. Mr. Saadat Hussain, learned Advocate Supreme Court for the appellants/petitioners in all the above cases has reiterated the above grounds in support of his pleas that the learned Members of the Division Bench of the High Court were in error in enhancing/justifying the compensation awarded to the private respondents/landowners sans any justification and that, according to him, interpretation of section 23(2) of the Act, which provides taking into consideration the market value of the land in question on the date of Notification under section 4(1) or on, the date of Declaration under section 6 of the Act requires an authoritative pronouncement in these cases.
5. Contrarily, Mr. Muhammad Umar Khan, learned Advocate Supreme Court appearing on behalf of respondents in Civil Appeal No,1157 of 1997 and Mr. Abdul Samad Khan, learned Advocateron- Record for the respondents in the remaining appeals/petitions, were one on the point that the impugned judgment does not suffer from any legal infirmity tb qualify for being interfered with in these proceedings. They have pressed into service Government of Sindh v. Syed Shakir Ali Jafri (1996 SCMR 1361); Abdul Qayyum v. Pakistan through Secretary, Ministry of Defence, Rawalpindi (1996 SCMR 1820); Sadiq Niaz Rizvi v. The Collector, District Lasbella (PLD 1993 SC 80); Pakistan Burmah Shell Ltd. v. Province of N.-W.F.P. (1993 SCMR 1700); Market Committee, Kanganpur through Administrator v. Rayyat Ali (1991 SCMR 572) and Malik Aman v. Land Acquisition Collector (PLD 1988 SC 32) to contend that among others, the determination of the market value of the lands similarly placed as those of the private respondents herein has to be gone ahead by duly noticing the same as on the date of Notification under section 4 of the Act and on the fact as to what a willing purchaser pays to a willing seller. Further, while assessing the value of the lands in question, their location, potentialities and the prices evidenced by the transactions of similar parcels of land at the time of the Notification under section 4 of the Act is merely one of the modes in that regard and not an absolute yardstick for assessme nt of market value thereof.
6. We have considered the arguments addressed at the Bar by the learned counsel for the parties and have also been taken through the available material by them. The contention raised by the learned counsel for the appellants/petitioners do not find support froth the case-law cited on behalf of the private respondents/landowners. It is not denied that the learned Members of the Division Bench of the High Court made an in-depth study of the entire material on the record in juxtaposition with the respective findings by the Land Acquisition. Collector and the Judge Land Acquisition to reach the conclusion that: "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 exorbitant price preceding the notification under section 4 in order to artificially raise the one year average but the witness showed his ignorance and the suggestion was not subsequently substantiated by evidence." (Underlining is for emphasis). It was also rightly observed that the Land Acquisition Judge was quite right in enhancing the compulsory acquisition charges from 15% to 25% for the reason that WAPDA was a "Company", therefore, liable to pay the higher rate of compulsory acquisition charges. The learned Members of the Division Bench of the High Court made reference to the decision of the Lahore High Court, Lahore in Muhammad Mushtaq Ahmad Khan v. Assistant Commissioner, Sialkot (PLD 1983 Lahore. 178), wherein it was held that 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 a body incorporated by a Pakistani law, and therefore, a Company within the meaning of section 3(e) of the 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." (Underlining is for emphasis).
7. Reference may also be made to Province of Punjab through Collector, Attock v. Engineer Jamil Ahmad Malik (2000 SCMR 870), wherein one of us (Irshad Hasan Khan, C.J.), while dilating upon the scope of section 23 of the Act observed that: "(i) That an entry in the Revenue Record as to that nature of the land may not be conclusive, for example, land may be shown in Girdawari as Maira, but because of the existence of a well near the, land, makes it capable for becoming Chahi land;
(ii) that while determining the potentials of the land, the use of which the land is capable of being put, ought to be considered;
(iii) that the market value of the land is normally to be taken as existing on the date of publication of the notification under section 4(1) of the Act but for determining the same, the price on which similar land situated in the vicinity was sold during the preceding 12 months and not 6-7 years back, may be considered including other factors like potential value etc."
' Also refer Province of Punjab through Collector, Bahawalpur and others v. Col. Abdul Majeed and others (1997 SCMR 1692); Abdul Rauf Khan v. Land Acquisition Collector (1991 SCMR 2164); Guni Khatoon v. Province of Sindh (1987 SCMR 2084); Fazalur Rahman v. Collector (PLD 1988 SC 32); Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. (1993 SCMR 1700) and Murad Khan and 13 others v.
Land Acquisition Collector, Peshawar and another (1999 SCMR 1647). To the same effect are the observations made by one of us (Irshad. Hasan Khan, C.J.) in an unreported judgment in: "Deputy Commissioner/Land, Acquisition Collector and others v. Sardar Muhammad Shafqat and others (Civil Appeals Nos.1449 of 1999 to 1460 of 1999: PLD 2001 SC 405), delivered on 19-1-2001, that in the event of the High Court proceeding, "with considering the potentialities of the lands in question for the purpose of award of compensation to the respondent-landowners and that too after bringing to bear the law declared by this Court in Collector, Bahawalpur District, (supra); Maqbool Ahmed Fatehally (supra) and Fazalur Rahman (supra) on the peculiar facts and circumstances..." there is nothing left to fall back upon for the purposes of interference with such a decision.
8. For all that has gone before, we dismiss these Appeals as well as the Petitions for leave to appeal with no order as to costs.