2004 PLP 682 (CLC)

M. Alam Khan for Respondents. Date of hearing: 30th January; 2003. The petitioners through the instant petition have questioned the judgment and decree dated 19-5-2003 of the learned Additional District Judge-I, Mardan whereby he dismissed the appeal filed by them and thin upheld the judgment and decree dated 13-7-2002 of the learned Civil Judge, Mardan.

2. It was argued by the learned counsel for the petitioners that if a property acquired was taken possession of under section 6 read with section 17 of the Land Acquisition Act, award of simple interest at the rate of Rs.6% was mandatory it, however it was awarded a controversy relating to it cannot be brought to a Civil Court as an aggrieved person has a right to ask therefore by filing a reference under section 18 or 30 of the Act. The learned counsel to support his contention placed reliance on the cases of State of Madhya Pradesh v. Man Mohan Swaroop AIR 1966 MP 270 and Lalsaheb Nabin Chandra Hani Deo and another v. The State of Orissa AIR 1975 Orissa 126.

3. As against that, the learned counsel appearing on behalf of the respondents argued that execution of a decree passed pursuant to a suit for recovery of interest permissible under section 34 of the Land Acquisition Act, was never interfered with by the Honourable Supreme Court in the case of Land Acquisition Collector, Nowshera and others v. Sarfraz Khan and others PLD 2001 SC 514, therefore, its recovery through a civil suit cannot be held to be barred by law, moreso when, according to the proviso of the aforesaid provision, owners are entitled to it notwithstanding a waiver or an agreement to the contrary.

4. I have gone through the record carefully and considered the submission of the learned counsel for the parties.

5. Be all that as it may, since in any case, it is an indefeasible right of the owners to get interest under section 34 of the Land Acquisition Act if the property acquired was taken possession of under section 6 read with section 17 thereof, no canons of law will bar its recovery through a civil suit if denied, as the proviso to the section itself in no uncertain terms, envisages the entitlement of the owner thereto, notwithstanding any waiver or an agreement to the contrary. Therefore, I do not think, the award of such interest through a decree in a civil suit can be termed an illegality or jurisdictional error by any attribute so as to justify interference therewith. However, award of compound interest is in no way in conformity with the said provision.

6. As a sequel to what is discussed above, I while maintaining the impugned judgment, would modify it to the extent of compound interest. The respondents would thus be entitled to simple interest at the rate of 6% from the date of taking possession to the, date the compensation was deposited in the Court.

7. With the modification mentioned above, this petition is disposed of accordingly. H.B.T./40/P Order accordingly.