RANA BHAGWANDAS, J.--Aforesaid 18 appeals are filed against ' two consolidated judgments dated 13-8-1997 passed by a Division Bench of the Peshawar High Court. These appeals arise out of two sets of separate proceedings for compulsory acquisition of land comprising 42 Kanals, 16 Marlas Shah Nehri and 16 Marlas Ghairmumkin land, situated in village Shah Baig Tehsil Takht Bhai, District Mardan for the benefit of SCARP, Mardan for remodelling of Murdara Drain under Salinity Control and Reclamation Programme of WAPDA. In the first set of proceedings notification under section .4 of the Land Acquisition Act 1894 (hereinafter referred to as the Act) was issued by Collector, Mardan on 10-4-1990, whereas in the second set such notification was issued on 12-6- 1990. Vide Award No,226 dated 8-5-1993 the Land[ Acquisition Collector, after holding an inquiry, fixed the compensation for the lands under section 11 of the Act as under:--
(a) Shah Nehri land Rs,258 per Marla.
(b) Ghairmumkin land Rs,100 per Marla.
2. Land owners, Haji Ghulam Nabi, Nawab Khan and others, after receiving the amount of compensation under protest, filed objections to the adequacy of award amount and approached the Collector for a reference to the Referee Court in terms of section 18 of the Act. On his part, learned Referee Judge i,e, District Judge Miner Camp at Mardan, after recording evidence, enhanced the compensation from Rs,258 per Marla to Rs,649.80 per Marla for Shah Nehri type of land and from Rs,100 to Rs,325 per Marla for Ghairmumkin/Banjar Qadeem type of land. While the Land Acquisition Collector had awarded 15% of the compensation amount by way of compulsory acquisition charges, the learned Referee Judge raised it to 25%. Landowners as well as the Government of N.-W.F.P. And Land Acquisition Collector, WAPDA preferred appeals before the Peshawar High Court, which maintained the findings of learned Referee Judge as regards the quantum of compensation payable to the land owners but modified the compulsory acquisition charges from 25% to 15% thereby partially allowing the appeals preferred by the Government/Collector, WAPDA and dismissing the appeals of the land owners.
3. In the second set of proceedings, 87 Kanals, 16 Marlas Shah Nehri land, 1 Kanal, 12 Marlas Barani land, 10 Marlas Banjar Qadeem land and 5 Marlas Ghairmumkin land situated in village Mardan, Tehsil and District Mardan was acquired for Remodelling of Mirwas Drain. The Land Acquisition Collector, through his Award No,217 dated 2-3-1993 fixed the market value of the land for payment of compensation at the rate of Rs,1,600 per Marla for Shah Nehri land, Rs,800 per Marla for Barani land and Rs,400 for Banjar Ghairmumkin land respectively. On the objections of the land owners to the quantum of compensation, the case was referred to the District Judge Buner Camp at Mardan in terms of section 18 of the Act. After evidence, learned District Judge enhanced the amount of compensation as under:--
(a) Shah Nehri Land Rs,2,000
(b) Barani Land Rs,1,000
(c) Banjar/Ghairmumkin Land Rs,500
4. In the case of Khalid Hussain etc. (objectors in Petition No,17/4 of 1994) learned District Judge enhanced the amount of compensation to Rs,2,500 per Marla for Shah Nehri land for the reason that their lands were situated on Main Mardan--Charsadda Road. Land owners as well as WAPDA Authorities, being dissatisfied, preferred separate R.F.As. Before a Division Bench of the Peshawar High Court, which through the impugned judgment enhanced the compensation from Rs,2,000 per Marla to Rs,2,857.80 per Marla for Shah Nehri land and in respect of lands of Khalid Hussain etc. Raised the market value from Rs,2,500 per Marla to Rs,4,000 per Marla. Compensation as fixed in respect of Barani and Banjar lands was maintained by the learned Members of the Division Bench of the High Court but they reduced the compulsory acquisition charges from 25% to 15% in terms of section 23(2) of the Act. It may be pertinent to note that these appeals have been filed as of right since the judgment and decree passed by the lower forum were partially modified by the High Court. Questions ' for determination in both sets of proceedings are as under:-
(1) Whether learned Referee Judge and the High Court were legally justified in enhancing the amount of compensation determined by the Land Acquisition Collector?
(2) Whether the High Court was right in reducing the amount of compulsory acquisition charges from 25% to 15% ?
5. We have heard the learned counsel appearing in support of these appeals and with their assistance gone through the material evidence on record. Suffice it to say that the learned Referee Judge as well as the High Court meticulously assessed the oral as well as documentary evidence on the question of fair market value of the lands compulsorily acquired by the Government and there appears to be no case of misconstruction of evidence and non-reading or misreading of the material on record. In our view the learned Referee Judge and the High Court were justified in enhancing the amount of compensation for different categories of land. These findings are based on proper appreciation of evidence as also due consideration of the relevant material placed on the record. Indeed, different guidelines for determining the market value of the land for payment of compensation for compulsory acquisition of land by the Government for public purpose stand elaborately laid down by this Court in Murad Khan v. Land Acquisition Collector, Peshawar 1999 SCMR 1647. For the sake of ready reference these may be advantageously reproduced as under:- "(i) The data from which the market value of the land can be estimated is given in rule 13 of the North-West Frontier Province Circular No,54 issued presumably under section 55 of the Act.
(Premier Sugar Mills Limited v. Hayatullah Khan PLD 1956 (W.P.) Pesh.67.
"(ii) The best method to work out the market value is the practical method of a prudent man laid down in section 3 of the Evidence Act to examine and analyse all the material and evidence available on the point and to determine the price which a willing purchaser would pay to willing seller of the acquired land. The Land Acquisition Collector, Rawalpindi v. Lieut.-General Wajid Ali Khan Burki PLD 1960 (W.P.) Lah.469.
"(iii) Subsection (1) of section 23 of the Act provides that in determining the amount of compensation the Court shall take into 'consideration the market value, loss by reason of severing such land from his other land, acquisition injuriously affecting his other property or his earning in consequence of change of residence or place of business and damage, if any, resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land. This, however, is not exhaustive of other injuries or loss which may be suffered by an owner on account of compulsory acquisition (Province of West Pakistan and another v. M. Salim Ullah and others PLD 1966 SC 547.
"(iv) The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of it near about the date of notification under section 4(i) of the Act. The next best method is to take into consideration the instance of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighbouring locality, the potential value of the land need not be separately awarded because such sales cover the potential value. (Jogendra Nath Chatterjee and others v. State of West Bengal (AIR 1971 Calcutta 458). (Underlining provided for emphasis).
"(v) It is obvious that the law provides determination of compensation not with reference to classification or nature of land but its market value at the relevant time. No doubt, for determining the market value, classification or the nature of land may be taken as relevant consideration but that is not the whole truth. An area may be Banjar Qadeem or Barani as in the present case but its market value may be tremendously high because, of its' location, neighbourhood, potentiality or other benefits. (Pakistan and another v. Rehm Dad and another 1980 CLC 574. (Underlining provided for emphasis).
"(vi) According to the well-settled principle, while determining the value of the compensation the market value of the land at the time of requisition/acquisition and its potentiality have to be kept in consideration. (Pakistan v. Din Muhammad and others 1983 CLC 1281).
"(vii) Consideration should be had to all the potential uses to which the land can be put, as well as all the advantages, present or future, which the land possesses in the hands of the owners. (Mst.
Khatu and others v. Barrage Mukhtiarkar, Thatta PLD 1977 Kar. 203).
"(viii)In determining the quantum of fair compensation the main criterion is the price which a buyer would pay to a seller for the property if they voluntarily entered into the transaction. (Din Muhammad v. General Manager, Communication and others PLD 1978 Lah. 1135).
"(ix) The measure of fair compensation is the value of the .Property in open market which a seller voluntarily entering into a transaction of sale can reasonably demand from a purchaser... ...This means that we have to determine the value of the land in the open market at the relevant time on the assumption that the notification of acquisition did not exist. (Province of Punjab v. Sher Muhammad and another PLD 1983 Lah. 578).
"(x) While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller only the 'past sales' should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as Court witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even relying upon the oral testimony with respect to market value of the property intended to be acquired, because even while deciding cases involving question of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence. The credibility of such witnesses would, however, have to be kept in mind and it would be for the Court in each case to determine the weight to be attached to their testimony. It would be useful and even necessary, to examine such witnesses while determining the market prices of the land in questions because of the prevalent tendency that in order to save money on the purchases of stamp papers and to avoid the imposition of heavy gain tax levied on sale of property, people declare or show a much smaller amount as the price of the land purchased by them than the price actually paid. The previous sales of the land cannot therefore be always taken to be an accurate measure for determining the price of land intended to be acquired.
(Fazalur Rehman and others v. General Manager, S.I.D.B. And another PLD 1986 SC 158). (Underlining provided for emphasis).
"(xi) The sale-deed and mutation entries do serve as an aid to the prevailing market value.
Government of Pakistan v. Maulvi Ahmed Saeed 1983 CLC 414).
"(xii) It is a well-settled law that in cases of compulsory acquisition effort has to be made to find out what the market value of the acquired land was or could be on the material date. While so venturing the most important factor to be kept in mind would be the complexion and character of the acquired land on the material date. The potentialities it possessed on that date are also to be kept in view in determining a fair compensation to be awarded to the owner who is deprived of his land as a result of compulsory acquisition under the Act. (Central Government of Pakistan v. Sardar Fakhar-eAlam and another 1985 CLC 2228).
"(xiii) The value of the land of the adjoining area which was simultaneously acquired and for which different formula of compensation has been adopted, should be taken into consideration. (Raza Muhammad Abdullah through his legal heirs v. Government of Pakistan and others 1986 MLD 252).
"(xiv) The phrase 'market value of the land' as used in section 23(1) of the Act means 'value to the owner' and, therefore, such value must be the basis for determination of compensation. The standard must be not a subjective standard but an objective one. Ordinarily, the objective standard would be the price that owner willing purchaser. The property must he valued not only from a willing purchaser. The property must be valued not only with reference to its condition at the time of the determination but its potential value must be taken into consideration (Abdul Wahid and others v. The Deputy Commissioner 1986 MLD 381).
5. In the instant appeals, we have thoroughly examined the evidence of the Halqa Patwari, the land owners as well as the Sub-Divisional Officer and Patwari, SCARP, WAPDA and the average sale price of the lands similarly situated and in identical use during the period when these lands were acquired. We are of the considered view that fair market value, as determined by the High Court, does not suffer from any legal infirmity or misappreciation of the material facts. Indeed the landowners are entitled to maximum possible benefit in the circumstances of each case for the reason that such lands are acquired not by way of mutual negotiations but under the State power conferred on the public functionaries. Courts are, therefore, always liberal and generous in fixing the quantum of compensation based on different considerations so that neither a land owner is deprived of his due rights nor the acquiring agency is unduly burdened in that behalf. Obviously, under the provisions of the Act, private lands are acquired for public purpose without the consent of the owners and the paramount consideration behind the scheme appears to be the welfare of the people at large. The object behind the legislative dispensation is not to deprive the land owners of their Constitutional right to acquire, hold and dispose of property. Subject to Constitution and with reasonable restrictions, such rights are guaranteed under Articles 23 and 24 of the Continuation, stipulating that no person shall be deprived of his property save in accordance with law and no property shall be compulsorily acquired for a public purpose except by the authority of law, which provides for compensation and either fixes the amount of compensation or specifies the principles on and the manner in which the compensation is to be determined and paid.
6. In the facts of the cases in hand, the learned counsel for the parties have not been able to persuade us to take a view different from the one taken by Courts below generally and the learned Members of the Division Bench of the High Court in particular. The amount of compensation determined by the Courts below, being just, fair and reasonable, we are not inclined to disturb the findings of the High Court on the question of quantum of compensation.
7. Adverting to the submission made by learned counsel for the land owners that, the High Court committed a grave error of law by awarding compulsory acquisition charges at the rate of 15% as against 25% awarded by the learned Referee Judge, we find that learned Members of the Division Bench of the High Court were justified in doing so. Admittedly, the lands were acquired for a public purpose and not for private use by WAPDA. In support of its view the High Court relied upon Haji Fateh Khan v. Government of N.-W.F.P. PLD 1997 Peshawar 24. In the said precedent it was held that WAPDA, for whom land had been acquired, being a body incorporated by an Act c! Parliament, was entitled to acquire and hold property, to have perpetual succession and common seal for Company within the meaning of section 3(2) of the Act. It was further laid down that the land acquired for Authority (WAPDA) would be deemed to be an acquisition for public purpose within the meaning of section 13(3) of the Act. Learned Division Bench further held that WAPDA though a "company" but since lands in question had been acquired for public purpose, land owners were entitled to 15% compulsory charges under section 13(2) of the Act instead of 25%. This principle was also affirmed by a Full Bench of this Court in Muhammad Yaqoob v. Collector Land Acquisition (1997 SCMR 1670). Now section 23(2) of the Act as amended by Land Acquisition (West Pakistan Amendment Ordinance ) (No,49 of 1969) reads as under:-- "23 (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 a public purpose and a sum of twenty five per centum on such market-value if the acquisition has been made for a Company." A question arises whether the appellant WAPDA may be treated as a Company incorporated under section 32 of the Companies Ordinance, 1984 as Peshawar Electric Supply Company Limited was registered as such on 23-11-1998 and thus liable to pay compulsory acquisition charges at the rate of 25% as awarded by the learned Referee Judge. In our view, the provisions of section 23 (2) of the Act and section 13 (3) of the WAPDA Act, 1958 must be construed harmoniously and in a manner so as to save the legislative enactment rather than to defeat the spirit of law. It may not be out of context to refer to an unreported judgment of this Court in Civil Appeals Nos. 1157 to 1167 of 1997 and C.P.S.L.A. Nos. 299-P and 311-P to 314-P of 1997, decided on 14-3-2001, in which the view taken by a Division Bench of the Lahore High Court, relying upon an earlier decision of the said High Court in Muhammad Mushtaq Ahmad Khan v. Assistant Commissioner, Siaklot PLD 1983 Lah. 178 was approved. It was held that WAPDA was body corporate incorporated by an Act of Parliament and entitled to acquire and hold property, with 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. The fact of the matter remains that in the present cases the lands were acquired as far back as 1990 whereas Peshawar Electric Supply Corporation acquired the status of a limited company only in November, 1998. On this score also the provisions of section 23(2) of the Act may not be applied retrospectively and we hold that learned High Court rightly modified the rate of compulsory acquisition charges and partially allowed the appeals preferred by the Government/Land Acquisition Collector, WAPDA. We are fortified by a judgment of this Court in Collector, Land Acquisition v. Muhammad Said (2001 SCMR 1032).
9. Consistent with the law and the earlier decisions of this Court, we are inclined to the view that present appeals are without any merit which are accordingly dismissed, leaving the parties to bear their own costs.
10. Civil Appeal No,980 of 1998, being barred by 252 days without any plausible explanation, stands dismissed as barred by law.