' MAZHAR ALAM KHAN MIANKHEL, J.--- The appellants through instant regular first appeal have assailed the judgment and decree dated 29-6-2010 of learned Senior Civil Judge/Referee Judge, Swat, whereby, he after hearing the objection petition/Reference under section 18 of the Land Acquisition Act, 1894 dismissed the same by only entitling them to receive simple interest at the rate of 6% per annum on the principal amount of compensation from 5-4-1999 to 8-3-2000.
2. Learned counsel for the appellants Luntended that the findings of the Referee Court are the result of misreading and non-reading of the material evidence available on record and the same are also against the law. He next contended that the Referee Court failed to keep in mind the potential and future value of the suit property and has thus unlawfully dismissed their reference.
3. As against that, the learned counsel for the acquiring department submitted that vide impugned award all the affected landowners have received their compensation except the appellants. He further argued that the appellants themselves had accepted the amount of compensation at the rate of Rs,22,000/- per Kanal through negotiations at the first phase of acquisition in the year 1990, and now they cannot claim enhanced rate of compensation of the similar property because of their conduct and requested for dismissal of their appeal.
4. The learned counsel for the parties were heard and record of the case was perused:
5. Perusal of the record would reveal that the Government required a considerable area of land for the construction of Kanju Township Scheme, Swat. This being for public purpose, Government selected a huge chunk of land measuring 21222 Kanals of land situated in three different villages namely Damgrm Kanju and Dehrai of Tehsil Kabal District Swat and accordingly started land acquisition process under Land Acquisition Act, 1894. The landed property of appellants was situated in village Dehrai.
6. To initiate the process, the notification under section 4 of the Act of 1894 was issued by the Land Acquisition Collector and published in the Government Gazette on 15-8-1988. After completion of survey; final declaration an order of acquisition was issued by the Commissioner Malakand Division on 15-2-1999. Thereafter possession of the property was taken under section 17 of the Act in the year 1999 vide Gazette Notification dated 5-4-1999. The objections of the landowners were also called for by the Collector by issuing notices under sections 9 and 10 of the Act ibid. In spite of the objections of the landowners, no proper decision thereon was made. Then at last impugned Award dated 8-3-2000 was announced by Land Acquisition Collector by fixing market value of the acquired property at the rate of Rs,22,000/- per Kanal on the basis of one year average prior to publication of Notification under section 4 of the Act ibid along with 15% compulsory acquisition charges.
7. The property in question was acquired for construction of Kanju Township, Mingora, Swat Phase-II by the Project Director, Malakand Division Development Authority. In its first phase of acquisition, after issuance and publication of notification under section 4 of the Act ibid, (the same one referred above) the affected landowners were paid the compensation of their acquired properties on the basis of negotiations between the two parties and the rate of compensation thereby was fixed as Rs,22,000/- per Kanal in the year 1990. For the second phase of acquisition (the present one), Department relied and considered the first Gazette Notification of section 4 of the ibid Act of 1894, which was published on 15-8-1988. Thereafter other process like notices/ notifications under sections 6, 7, 9 and 10 were accordingly issued but in the year 1999 i,e, on 15-2-1999 and 31-5-1999 respectively and the acquisition process was unnecessarily and unjustifiably prolonged by the acquiring department. The acquiring department then took over the possession of acquired property under section 17 of the Act vide Gazette Notification dated 5-4-1999. The learned counsel representing the acquiring department was unable to explain the unreasonable and unnecessary delay in the acquisition process by the department and similarly the announcement of award dated 8-3-2000 on the strength of publication of notification under section 4 on 15-5-1988. It is strange enough that the acquiring department in its first phase of acquisition paid a compensation of Rs,22,000/- per Kanal to the affected landowners in the year 1990. When the landowners were not paid according to the agreed amount for their remaining lands and the department later on wanted to pay the same price of the year 1990 in the year 1998/1999, they refused to accept the same. The department then completed the acquisition process, started in the year 1988 by publication of notification under section 4 of the Act ibid, and finally announced the ward in the year 2000. Strange enough that after a deep slumber of more than twelve years, fixed the market value at the rate of Rs,22,000/- per Kanal which was paid to the land owners in the year 1990. We think that the acquiring department has either fixed the market value at such a meager price intentionally or they were living in a world where they had no access to the changes made around them. The market value prevailing in the year prior to publication of notification under section 4 is only one of the criteria for fixation of the compensation and that too when acquisition process is strictly in accordance with the provisions of the Act of 1894. When the acquisition process is delayed in a manner like the one in hand, then the market value prevailing twelve years ago at the time of publication of Notification under section 4 of the Act ibid can in no way be held to be the market value. It Is strange that the Referee Court also failed to observe such a glaring illegality and irregularity in exercise of jurisdiction by the Land Acquisition Collector. The verdict of the Referee Court also reflects that it lacks the application of a judicial mind and he only kept in mind the provisions of section 23 (1) of the Act ibid and totally ignored the delay in acquisition process, potential value and future prospects of the acquired property. The Referee Court unnecessarily indulged itself into the question of extension of amended provisions of section 23 of the Act ibid in the PATA region. It is ridiculous to fix the price of the land in the year 2000 which was prevailing in the year 1990.
8. We in a recent decision dated 9-2-2012 in Writ Petition No,718 of 2008 titled Mst. Abida Aman-e- Room and others v. Government of N.-W.F.P and others declared the acquisition process, started in the year 1980 and completed in the year 2007, as against the law and without lawful authority and further directed to initiate the acquisition process afresh because the public purpose was yet to be achieved in that case but we in the circumstances of the case in hand are facing the situation when the possession of the acquired property was taken much before the issuance of notification under section 17 and the public purpose was almost achieved. So, setting at naught the entire process of acquisition and asking for a fresh one would be yet another unjustified act with the poor landowners. So, we intend to decide the case on the available record.
9. The appellants have claimed Rs,2,50,000/- per Kanal and have tried to justify their claim by producing two copies of mutations and a copy of registered deed. But such type of evidence would not be helpful to them as these documents do not establish the fact that the lands of said documents are similar in nature and kind in comparison to the acquired property. We have to see as to what should be the market value of the acquired property on the strength of available record irrespective of the fact as to whether the amended provisions of section 23 of the Act ibid were extended to the PATA area or not. The adherence of the trial Court to the provisions of section 23 of the Act ibid for fixation of compensation on the basis of market value prevailing one year prior to publication of the Notification under section 4 of the Act ibid, in the peculiar circumstances of the case, cannot be held to be lawful and justified. Provisions of section 23 (1) of the Act can never be held as the sole criteria for fixation of market value. The factor of potential and future value of the acquired land has also to be kept in mind while determining the compensation of the acquired property. Escalation of prices between the period of publication of notification under section 4 and the announcement of award is yet another aspect of the case. Delay of two or three years between two dates has been considered as a factor for enhancing the compensation whereas in the case in hand, there is a delay of twelve years plus in between the date of publication of notification under section 4 and announcement of award. Even the inflationary trend and depreciation in the currency of the country between the two dates cannot be ignored. The apex Court in the case of Mst. Iqbal Begum and others held that the gold be given for gold and not copper for gold. The findings of the trial Court by adherence to the provisions of section 23(l) of the Act ibid are entirely against the law and cannotbe maintained. Reliance in this regard can be placed on N.-W.F.P.
Through Collector Abbottabad Land Acquisition and others v. Haji All Asghar Khan and others (1985 SCM R 767), Province of Sindh through Collector of District Dadu and others v. Ramzan and others (PLD 2004 Supreme Court 512), Ministry of Defence through Secretary, Government of Pakistan and others v. Syed Wajid Rizvi (2009 SCM R 105), Land Acquisition Collector and others v. Mst. Iqbal Begum and others (PLD 2010 Supreme Court 719) and Malik Muhammad Ashraf and 3 others v.
National Highway Authority and others (2011 CLC 1117).
10. No doubt the compensation so fixed by the Land Acquisition Collector and affirmed by the Referee Court cannot be justified in the circumstances of the present case but to reach a proper conclusion we can get help from the brochure of the acquiring department present on file as Exh.P.W.1/5. This provides prices of different types of developed plots having all the basic facilities like electricity, gas, sewerage, roads etc, in their Phase-II which was published after the announcement of award. The price fixed for 1 Kanal of such developed plot having all the above facilities .Was Rs,2,51,000/-. So, by keeping in view all the above discussion, we in the circumstances fix the rate as Rs,80,000/- per Kanal of acquired land (undeveloped) which appears to be justified.
11. So, we allow this appeal, set aside the judgment and decree of Referee Court and fix the compensation of acquired property of village Dehrai at the rate of Rs,80,000/- per Kanal with 6% simple interest from the date of possession along with 15% compulsory acquisition charges, minus what has already been received by the landowners. By keeping in view the agonies of the affected landowners, we direct the department to calculate the compensation amount according to above terms and deposit the same in the Referee. Court positively within three months.