COLLECTOR LAND ACQUISITION And Other vs MUHAMMAD SAID (DECD).

MUHAMMAD BASHIR JEHANGIRI, J.-- The above to direct appeals under Section 54 of the Land Acquisition Act (No. 1 of 1894) (hereinafter called as the Act) were filed against the judgment of a learned Judge in chambers of .The Peshawar High Court, in affirmance of the order of the learned Referee Judge enhancing compensation by the Land Acquisition Collector.

2. The factual background of the case which is gleaned from the impugned order of the learned Single Judge of the Peshawar High Court, is that the land measuring 54 Kanals including 14 Kanals and 2 marlas of the disputed land situate within the area of Fateh Abad Tehsil Takht Bhai, District Mardan, was acquired for the purpose of "Remodelling of Murdan Drain". A notification under Section 4 of the Act, was issued on 11.3.1 991. By virtue of award No. 214, dated 9.2.1 993, the Land Acquisition Collector awarded the compensation amount as under:--

(a) Shah Nehri/Abadi Land. Rs. 976/74 per marla.

(b) Ghair Momkin land. Rs. 241/93 per marla.

3. The owners were also held to be entitled to 15% by way of the compulsory acquisition charges.

The respondents/owners of the land, feeling aggrieved of the determination of the inadequate compensation by the Land Acquisition Collector, filed the objection petition under Section 18 of the Act. In due course it was referred to the learned Referee Judge for the determination of adequate compensation. The learned Referee Judge enhanced the compensation to Rs. 1500/- per marla for both kinds of land and also held the respondents to be entitled to 25% by way of compulsory acquisition charges and 6% simple interest per annum on the enhanced amount from the date of possession. Feeling dissatisfied, the Land Acquisition Collector and. Other appellants filed Regular First Appeal No. 34 of 1995, while the respondents/owners filed the Cross Objection No. 8 of 1995 which were heard together and dismissed by the learned Judge in Chambers of the High Court.

4. Mr. Saadat Hussain, learned ASC representing the appellants in support of the to appeals contended that there was no basis for the award of compensation by the Land Acquisition Collector or for that matter the learned Referee Judge to enhance it to Rs. 1500/- per marla only on the basis of its location being on Pakka Road, or for its being adjacent to village Abadi, or that the land in dispute was culturable which yielded to crops in a year i. e. Sugar-cane and sugar beat.

Thus the grievance of the learned counsel for the appellants is that there is no evidence to support the finding of the learned Referee Judge on the afore-noted considerations for the enhancement of the amount of compensation.

5. Mr. Saadat Hussain Khan, learned ASC, appearing on behalf of the appellants, besides raising aforesaid contention which he had pressed into service before the learned High Court also additionally urged that the learned Referee Judge and the learned High Court had fallen into error to award 25% as compulsory charges against 15% to which the respondents/owners were only entitled. According to Mr. Saadat Hussain, even if it is conceded that the appellant company had been incorporated as a Company still the addition of sub-section (2) ibid could not operate retrospectively. It would, therefore, be appropriate to reproduce sub-section (2) of section 23 ibid:- "(2) In addition to the market-value of the land as above provided, the Court shall award a sum of fifteen per centum of 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."

6. In this context, the learned counsel pointed out that no doubt Peshawar Electric Supply Company Ltd. (PESCO) had been incorporated on 23.11.1998 under the Companies Ordinance, 1984 and that the company was limited by virtue of certificate of incorporation under Section 32 thereof.

According to him, the land on the contrary was acquired vide notification under Section 4 of the Act on 11.1,1 991.

7. We are inclined to accept the valid contention of the learned counsel for the appellants in this behalf as there was nothing to show that the incorporation of the appellant/company would operate retrospectively. On the crucial date of notification under Section 4 of the Act, the appellants were not incorporated as a company. Accordingly the respondents/owners could not invoke the provisions of sub-section (2) of section 23 as ibid added by West Pakistan Ordinance "No. LIX of 1969". Resultantly the respondent/owners could not be awarded the compulsory acquisition charges at 25% per annum in the case in had and their plea on the score stands repelled.

8. We do, therefore, find that the learned Referee Judge was not justified to have awarded 25% per annum as the compulsory acquisition charges to the respondents taking the appellants to be a "Company" within/contemplation of the subsection (2) of section 23 ibid.

9. Accordingly, the award of 25% compulsory acquisition charges to the respondents/owners is set aside.

14. Resultantly, the appeals are partially allowed and the impugned orders of the learned Referee Judge which has been upheld by the learned Single Judge are modified to the extent that the respondents/owners shall be entitled to 15% of the enhanced amount of compulsory acquisition charges instead of 25%. The amount of the compensation awarded by the learned Referee Judge which was upheld by the learned Single Judge through the impugned order of the Peshawar High Court is, however, maintained. The parties are left to bear their on costs.