2002 PLP 1683 (CLC)

(a) Land Acquisition Act (I of 1894)‑‑‑ ‑‑‑‑S. 54‑‑‑Appeal‑‑‑Right to file‑‑‑Necessary parties‑‑‑Appeal filed Ion behalf of local authority or company i.e. the beneficiary of land acquisition‑‑‑Validity‑‑‑Such appeal was incompetent as only parties to proceedings under S. 18 of the Land Acquisition Act, 1894, were competent to file appeal. Pit Khan v. Military Estate Officer and others PLD 1987 SC 485 eel. (b) Land Acquisition Act (I of 1894)‑‑‑ ‑‑‑‑Ss. 34 (as applicable to Punjab) & 54‑‑‑Civil Procedure Code (V of 1908), S.151‑‑‑Compound interest, awarding of‑‑‑Waiving of such interest‑‑‑Contention of the authorities was that despite the landowners had waived claim of compound interest, the Trial Court had awarded the same‑‑‑Validity‑‑‑Award of compound interest from the date of possession till payment or deposit was mandatory upon the Collector under S.34 of the Land Acquisition Act, 1894, as the Collector was duty bound to grant the same‑‑‑Landowner had no right to waive the compound interest‑‑‑Any waiver or agreement of waiver was void under the express statutory injunction contained in S.34 of the Land Acquisition Act, 1894‑‑‑Even if the compound interest was not claimed or demanded in any proceedings by the landowners plea of waiver or estoppel could not be raised against them‑‑‑Landowners were not debarred from claiming interest under S.151, C.P.C. read with S.34 of the Land Acquisition Act, 1894‑‑‑Compound interest awarded by Trial Court did not suffer from any legal infirmity‑‑‑Appeal was dismissed in circumstances. Mst. Fahmida Khatoon v. Additional Deputy Commissioner (Consolidation), Lahore and another PLD 1975 Lah. 942 ref. JUDGMENT Upon acquisition of land of the predecessors‑in‑interest of the respondents, compensation under section IS of the Land Acquisition Act was determined by the learned Senior Civil Judge, Sialkot on 24‑7‑1984 but 15 % compulsory acquisition charges were awarded on 14‑12‑1988. The Court omitted to grant 8% compound interest as imperatively enjoined by section 34 of the Land Acquisition Act. The respondent, therefore, filed a review application on 5‑7‑19.89 claiming compound interest @ 8% and also seeking enhancement of the compensation. By order dated 26‑11‑1992 learned Senior Civil Judge, Sialkot held as under:‑‑ (i) Review against enhancement was not competent and was thus disallowed; (ii) Application under Order XLVII was compositly treated also as an application under section 151, C.P.C. and was held to be within time in the matter of grant of interest: and (iii) Compound interest a 8% from the date of possession of the land till deposit or payment of compensation was allowed to the respondents.

2. The abovesaid order, dated 26‑11‑1992 has been challenged through this F.A.O. by three parties i.e. Province of Punjab through Collector, WAPDA (the beneficiary of the land) and Land Acquisition Collector, WAPDA.

3. The learned A.A.‑G. contended that the review filed by the respondents was time‑barred as well as incompetent and the respondents were estopped to claim compound interest as throughout they had omitted to make claim for interest.

4. Learned counsel for the respondents contended that WAPDA's appeal was incompetent and that respondents had filed a composite application to enhance the compensation in review of the award and also for grant of interest under section 151, C.P.C. in terms of mandatory provisions of section 34 of the Land Acquisition Act. And that since the compulsory charges were granted and finally determined in favour of the petitioners on 24‑12‑1988, where for this application under section 151, C.P.C. read with section 34 of the Land Acquisition Act, filed on 5‑7‑1989 was within three years under residue Article 181 of the Schedule to Limitation Act.

5. I have considered the arguments and examined the record. As held by the Honourable Supreme Court of Pakistan in the case of Pir Khan v. Military Estate Officer and others PLD 1987 SC 485 an appeal on behalf of a local authority or a company i.e. the beneficiaries of land acquisition is incompetent as only parties to proceedings under section 18 of the Land Acquisition Act were competent to file an appeal. In view thereof, appeal on behalf of WAPDA and its officers (appellants Nos.2 and 3) is incompetent. However, appellant No.1 can competently maintain an appeal from an award under section 18 or even otherwise under the provisions of Civil Procedure Code, if an appeal is otherwise competent.

6. Examination of the impugned order, dated 26‑11‑1992 passed by the learned Senior Civil Judge, Sialkot, shows that he dismissed the review seeking enhancement of compensation but allowed compound interest (& 8% in terms of section 34 of the Land Acquisition Act by invoking provisions of section 151, C.P.C. in reliance upon the judgment of Mst. Fehmida Khatoon v. Additional Deputy Commissioner (Consolidation), Lahore and another PLD 1975 Lah.

942. An order passed under section 151, C.P.C. is not an appeal-able order under rule I of Order XLIII, C.P.C. As such even appellant No. 1 could not have tiled the present appeal against the impugned order.

7. Be that as it may application under section 151, C.P.C. was obviously within time from the date of award of 15% compulsory acquisition charges through order, dated 14‑12‑1988 as the application was filed within three years on 26‑11‑1999. The provisions of section 34 read with Punjab Amendment of the Land Acquisition Act provides as under: ‑‑ 34 Payment of interest.‑‑‑ When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount award with compound interest thereon at the rate of eight per centum per annum from the time of so taking possession until it shall have been so paid or deposited: Provided that any waiver of the above right by the landowner shall be void and he shall be entitled to the said interest notwithstanding any agreement to the contrary." Under the provisions of above reproduced section 34 award of compound interest from the date of possession till payment or deposit is mandatory upon the Collector who is thereby duty bound to grant the same. A landowner has no right whatsoever to waive the same and any waiver or agreement of waiver thereof has been‑held to be void under the express statutory injunction contained in the above reproduced section. In view thereof even if the same was not claimed or demanded in any proceedings by the respondents, a plea of waiver or estoppel cannot be raised against them and the respondents were not debarred from claiming interest under section 151, C.P.C. read with section 34 of the Land Acquisition Act. As such there is no legal infirmity in the impugned order. This appeal is, therefore, dismissed for being without merit. There shall, however, be no order as to costs. Q.M.H./M.A.K./P‑63/L Appeal dismissed.