2016 PLP 2 (CLCN)

ABDUL LATIF KHAN, J.

Through this single judgment, I intend to dispose of R.F.A. No.206/2011 and R.F.A. No.236/2011 as both the appeals are the outcome of one and the same judgment and decree dated 30.4.2011 passed by the learned Referee Judge/Additional District Judge, D.I. Khan vide which on acceptance of reference petition of the appellant namely, Mst. Abida Kulsoom, the rate of compensation of her acquired property was fixed as Rs.55,000/- per kanal with 15% compulsory acquisition charges and 6% simple interest per annum on the amount of compensation which remains unpaid, to be calculated from the date of taking of possession i.e. 15.4.1996 till the final payment of such unpaid compensation.

2. Precise facts giving rise to the instant appeals are that the WAPDA authorities i.e. respondents acquired land measuring 87 kanals 08 marlas in Mauza Dhakna, Tehsil and District D.I. Khan for the construction of Drain No.10-11 CRBC Stage-II, WAPDA, D.I. Khan and in this respect Award No.234 was announced on 28.8.2001 wherein compensation of the acquired land was fixed as Rs.2789/60 per kanal.

3. Aggrieved of the compensation so fixed in the Award, the appellant filed reference petition under section 18 of the Land Acquisition Act, 1894 which was referred to the Court of learned Referee Judge who vide judgment dated 25.6.2009, allowed compensation at the rate of Rs.50,000/- per kanal for land measuring 17 kanals and 16 marlas. Aggrieved of the same, the appellant filed RFA No.41/2009 which was accepted by this Court on 05.11.2010 and the case was remanded to the trial Court for de-novo adjudication after taking into consideration report of commission. The learned Referee Court appointed local commissioner who visited the spot and submitted his report. The learned Referee Judge while partially allowing the reference, fixed the rate of compensation as Rs.55,000/- per kanal with 15% compulsory acquisition charges and 6% simple interest per annum, vide judgment dated 30.4.2011, hence the instant appeals.

4. The learned counsel appearing on behalf of the appellant contended that the learned Referee Judge failed to give its consideration to the report of commission who had specifically inspected the spot and assessed the compensation to the tune of Rs.1,00,000/- per kanal. He contended that no plausible reason has been given by the learned Referee Judge for ignoring the mutations available on file with regard to the price of per kanal land. He added that section 23 of the Land Acquisition Act, 1894 has been misinterpreted by the Court below and the enhancement, though made, was too meager and prayed for further enhancement of the compensation to the tune of Rs.1,00,000/- as claimed by the appellant and supported by the local commissioner.

5. As against that, the learned counsel appearing on behalf of the respondents contended that the compensation granted in the Award was Rs.2789/60 per kanal and the trial Court has wrongly enhanced the same to the tune of Rs.55,000/-. He contended that the objector failed to produce any evidence in support of reference even though the enhancement made by the learned Referee Judge is without lawful authority and is liable to be withdrawn. He contended that a separate R.F.A. No.236/2011 has been filed by the WAPDA authorities, present respondents, wherein the impugned judgment has been assailed on the ground that the compensation has wrongly been enhanced by the Referee Judge. He prayed for the acceptance of R.F.A. No.236/2011 and dismissal of the instant R.F.A. No.206/2011, by reversing the impugned judgment resulting into the dismissal of objection petition filed by the present appellant.

6. I have given my anxious thought to the arguments advanced at the bar by learned counsel for the parties and perused the record with their assistance.

7. The appellant has produced Patwari Halqa who has brought on record one year average for the year 2008-2009 (Ex.P.W.219), wherein average rate is shown to be Rs.45,692/17 per kanal. The appellant reiterated her stance taken in her petition.

8. Local Commissioner was appointed who after spot inspection, recorded evidence of the parties and disinterested persons on the spot and observed that the value of the suit land per kanal comes out to Rs.1,00,000/- and in case where the property is situated on the bank of the road, it goes up to Rs.3,00,000/- to Rs.4,00,000/- per kanal.

9. The property was taken into possession in the year 1996 and the Award has been announced in the year 2001 but due to rise in prices, the fair compensation has to be determined for which the price shown in the averages prepared the revenue authorities would not be a safe criteria and for this purpose, apart from averages, other material has to be taken into consideration to determine the amount of compensation. Merely one year average price of the land in the same vicinity is not exhaustive by itself as the other considerations are relevant for awarding fair compensation to the persons from whom the property has been compulsorily acquired. In the case of Land Acquisition Collector, Abbottabad and others v. Gohar-ur-Rehman Abbasi (2009 SCMR 771) it was observed that:- "It may also be noted here that the average of sales of last one year is not conclusive for the determination of the market value of land and while assessing the market value of the land, its location and potentiality has also to be considered." In case titled Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others (PLD 2009 SC 16), the honourable apex Court held that:- "It would be pertinent to mention here that criteria for determination of compensation of land has been laid down in section 23 of the Land Acquisition Act and it includes, inter alia, the market value of the land at the date of publication of notification under section 4(1) of the Act, the damage sustained by the persons interested by reasons of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession, or by reason of severing such land from his other land, or by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings, or if a person interested is compelled to change his residence or place of business, and it also includes the damages 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, etc, meaning thereby that it is cumulative effect of all the factors involved and compensation cannot be assessed solely on the basis of the entries in the mutation effected at the relevant time." In case titled Mst. Sumaira Gul v. Land Acquisition Collector G.S.C. WAPDA, Peshawar and others (2011 SCMR 118), it was held that:- "Section 23 of the Land Acquisition Act has laid down that in addition to market value of the land awarded, a sum of 15% as compulsory acquisition charges is to be awarded, if Federal or Provincial Government acquires the land for public purpose and a sum of 25% on such market value as compulsory acquisition charges if acquisition has been made for a company. Since admittedly land in question has been acquired for a company in terms of section 3(e) of the Act, the appellant was entitled for a compulsory acquisition charges, in addition to market value of the land at the rate of 25% and not at the rate of 15% as awarded by the High Court." So far as the determination of compensation is concerned, criteria has been laid down by their Lordships in the aforesaid judgments with reference to section 23 of the Land Acquisition Act which includes market value of the land at the date of notification under section 5 of the Act, damages sustained by the persons interested, potentiality of the land and the likelihood of its development and improvement. The appointment of local commissioner was held proper for the purpose of investigating any matter in dispute or ascertainment of market value of the suit property plus mesne profit or damages and annual profits. In Pakistan Burmah-Shell Ltd. v. Province of N.W.F.P. and 3 others (1995 SCMR 1700), the honourable apex Court observed that sales taking place before publication of notification under section 4 of the Land Acquisition Act of similar land is merely one of the modes for ascertaining the market value and is not an absolute yardstick for assessment.

10. In the instant case, the evidence available on file coupled with the report of local commissioner suggest that the market value of the property keeping in view its potentiality, future prospects and inflating trend, there was no question of extra burden on the public exchequer and compensation be awarded to the appellants with regard to their acquired land in accordance with law.

11. The assessment of market value by the learned Referee Judge by enhancing it from Rs.2789/60 to Rs.55,000/- per kanal has been based upon the evidence on file. However, at the time of fixation of compensation, the amount assessed by the local commissioner has been ignored which is Rs.1,00,000/- per kanal, which is not fair in the light of evidence available on file and in such state of affairs, the same needs further enhancement.

12. So far as the compulsory acquisition charges at the rate of 15% are concerned, the WAPDA being body corporate falls within the definition of company and as such the appellants are entitled to 25% compulsory acquisition charges instead of 15%. In this respect, reliance is placed on Mst. Sumaira Gul's case (2011 SCMR 118) wherein their lordships of Supreme Court of Pakistan observed that WAPDA being authority established under the Act of Parliament, being a body corporate is a company within the meaning of company as defined by section 3(e) of the Act and acquisition charges in addition to market value of land at the rate of 25% and not 15%.

13. For the reasons mentioned above, R.F.A. No.206/2011 is partially accepted and the amount of compensation is further enhanced from Rs.55,000/- to Rs.75,000/- per kanal with 25% compulsory acquisition charges.

14. The respondents could not point out any illegality in the impugned judgment while granting enhancement from the awarded amount to the one considered by the Referee Court and as such R.F.A. No.236/2011 being devoid of merit stands disposed of in the light of findings given above. JJK/424/P Order accordingly.