2016 PLP 127 (YLRN)

ABDUL LATIF KHAN, J.

The appellants filed this regular first appeal against the judgment and decree dated 11.5.2010 passed by the learned Additional District Judge/Izafi Zila Qazi/Acquisition Judge, Malakand at Batkhela, whereby he enhanced the compensation amount from Rs. 12 per sq. ft. i.e. Rs. 3,267/- per marla to Rs. 50/- per sq. ft. along with compulsory acquisition charges and 6% simple interest.

2. Arguments of learned counsel for the parties heard and record perused with their able assistance.

3. A perusal of record reveals that appellant/WAPDA acquired land for the Benazir tunnel at village Piranokalay at Tehsil Batkhela by dint of award No. 96 announced on 29-11-1999 passed by the Land Acquisition Collector, Malakand. Respondents/owners filed reference Under Section 18 of the Land Acquisition Act, 1894 for enhancement of compensation amount as the compensation given to owners @ Rs. 12 per sq.ft. (Rs. 3,260/-) per marlas whereas the respondents claims that the property was of higher value and the amount of compensation assessed was not in consonance with the prevailing market rate at the time of announcement of Award. The respondents were also given 15% compulsory acquisition charges along with 6% interest.

4. The claim of the objectors that they were not given notices by the Acquiring Department/Collector Land Acquisition with regard to the acquisition of land and the prices were fixed in their absence as no opportunity was afforded to them for raising any objection and, as such, were condemned un-heard. They claimed that the value of the property was in no way less than Rs. 40/- sq.ft. The objectors produced evidence in support of their contention and appeared as PW-1 one Chari Khan was examined as PW-2 and Bashir Ahmad deposed as PW

3. It is in the evidence that at the time of institution of suit the value of the property was Rs.70/80 per sq. ft. and at the time of evidence due to hike in prices the value of the land raised up to Rs. 200/300 per sq.ft/, certain documents/lease agreements etc were also place on file as EX-PW1/1 to EX-PW-1/10 regarding the prices of the adjacent lands.

5. A local commissioner was appointed, who inspected the spot and submit his report, who has assessed the value of the land @ Rs. 50/- per sq.ft. at the time of acquisition of land, however, observed that at present prices of the lands are too high though it is observed by the learned Referee Judge that none of the parties have filed the objections against his report but the learned counsel appearing on behalf of the appellants vehemently refuted the observation and referred to a document and termed the same as objection, which was filed on 9-7-2007. The document reveals that it is "Bayan"/report of Barkatullah Sub Engineer and Abdullah Patwari Sawabi SCAP WAPDA Mardan, the document cannot be considered as objection against the report of commission rather it shows that one Barkatullah representative of Sawabi SCARP and Abdullah given their report that the "Ihli" Commission inspected the spot on 13-6-2007. It is not find mentioned in the document that the value of the property given in the report of commission was not according to the spot or was an excessive rather not a single word has been mentioned regarding the value of the land in it, however, it is find mentioned that the value given in the Award was correct and, as such, the plea of the learned counsel for the appellants is misplaced to the effect that the objections were raised by the appellants. The local commissioner has prepared site plan annexed with the report and the value assessed in the light of the spot inspection made by him on 13-6-2007 in the presence of the parties and has assessed the market value of the land to the tune of Rs. 50/- per sq. ft. and virtually none of the parties made objection to it, which was confirmed by the learned Acquisition Judge. It is pertinent to mention that value assessed in the Award was meager and as informed by the learned counsel for appellant that the same was based upon average prepared on 26-2-1997, which is not available on file, however, possession of the property was taken on 26-8-1999 and the average relied upon for assessment of land pertains to the year 1997 which was not fair and just and, as such, the amount assessed in the Award was not the result of proper assessment of value of the land. Needless to mention that future prospect and potentiality of the land has to be taken into consideration at the time of assessment of value of the land for the purpose of acquisition, which is lacking in the instant case. The assessment of the local commissioner qua site plan prepared shows that the future potentiality of the vicinity wherein the suit property is situated leads to the conclusion that the amount assessed by the local commissioner qua the evidence recorded by the objectors entitles them for the compensation at the rate assessed by the local commissioner. The plea of the learned counsel for appellant that the objectors themselves have claimed the value of the property not less than Rs. 40/- per sq. ft. would not entitle them for Rs. 50/- per sq. ft. is also misplaced for the reason that value has to be assessed in the light of prevailing market rate at the time of taking possession of the property by way of acquisition of land, it is immaterial that objectors have claimed such and such amount rather the important aspect of the matter has to be seen with fair and transparent manner and value of the land under reference to be assessed according to the prevailing market rate at the time of taking possession of the property. Needless to mention that it is compensation which is to be considered under Land Acquisition Act and not the actual price which is always at higher pedestal than the actual prices and keeping in view the evidence produced by the objectors along with the report of the local commissioner, it was rightly assessed as Rs. 50/- per sq. ft. as value of the land by the learned Acquisition Judge and the appellants could not point out any infirmity or illegality in the impugned judgment and, as such, the same is not open to any exception.

6. As far as the compulsory acquisition charges of the land under reference is concerned, acquisition charges are to be paid @ 25% instead of 15% compulsory acquisition charges along with 6% simple interest from the date of section 4 till actual payment of the amount to the respondents and to this extent the judgment of the Trial Court is modified and compulsory acquisition charges are awarded to the tune of 25% instead of 15%. In this respect the judgment of apex Court reported in case titled Mst. Sumaira Gul v. Land Acquisition Collector G.S.C. WAPDA, Peshawar and others (2011 SCMR 118) is followed, which is reproduced for guidance as under: "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 purposes 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."

7. In the light of the observation made by the apex Court the petitioners are held entitled to get 25% instead of 15% compulsory acquisition charges. So far as the compulsory acquisition charges at the rate of 15% are concerned, the WAPDA being 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 the above referred judgment of apex Court, 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%. For the aforementioned reasons the appeal being devoid of merits is hereby dismissed, however to the extent of compulsory acquisition charges the amount is enhanced to the extent of 25% as observed above. Disposed of accordingly. ZC/368/P Disposed of.