' LAL JAN KHATTAK, J.---My this judgment shall also decide the connected regular first appeal bearing No,59 of 2010 not only that common questions of law and facts are involved therein but because both the appeals are the outcome of the same judgment and decree dated 30-7-2010 of the learned Judge Land Acquisition, D.I.Khan.
2. Brief facts of the case are that landed property of the appellants measuring about 59 kanals and 8 marlas situated in Mauza Shala, Tehsil and District D.I.Khan was acquired by the respondents through case Award No,188 dated 31-8-1996, for the construction of flood carrier drain No,18, stage- II of Chashma Right Bank Canal Project WAPDA, D.I.Khan. The compensation amount for the acquired land was fixed as Rs,4440.40 per kanal alongwith 15% compulsory acquisition charges with 6% simple interest thereon. The awarded rates were not accepted by the landowners and they opted to file objection petition under section 18 of the Land Acquisition Act, 1894 for their enhancement. The learned Referee Court vide its judgment and decree dated 3-7-2006 accepted the objection petition and enhanced the awarded rates from Rs,4440.40 to Rs,8000 per kanal. This judgment and decree was impugned by the landowners in appeal bearing R.F.A No,15 of 2007 before this court which was accepted on '12-6-2009 and the case was remanded to the Referee Court for decision afresh. On remand, the case was heard again and vide judgment and decree dated 30-7-2010, the learned Referee Court awarded same rates which were awarded to the appellants vide its earlier judgment and decree dated 3-7-2006. The appellants once again felt themselves aggrieved of and dissatisfied with the aforesaid judgment and decree have impugned the same through the instant appeal for further enhancement of the compensation amount of their acquired land while the respondents too have assailed the judgment and decree dated 30-7- 2010 in their separate appeal bearing R.F.A No,59 of 2010 for setting aside the enhanced rates.
3. Learned counsel for the appellants contended that neither the awarded rates are fixed in line with the provisions of the Land Acquisition Act, 1894 nor the learned Referee Court has adequately enhanced the same. Learned counsel submitted that worth reliance evidence has been produced by the appellants in support of their claim for enhancement of the awarded rates adequately but the same has not properly been considered and appreciated by the learned Referee Court.
4. As against the above, learned counsel for the respondents WAPDA, through his written arguments, contended that the appellants-landowners have not produced any evidence justifying any enhancement of the awarded rates. The learned counsel further submitted that the mutations relied upon by the landowners are of no help to them as parties thereto have not been examined by them in the court.
5. I have heard learned counsel for the appellants-landowners, perused the written arguments of the learned counsel for respondents and also gone through the record of the case.
6. Perusal of the record reveals that notification under section 4 of the Land Acquisition Act, 1894 was published in the official Gazette on 8-4-1993 while notification under section 17 was published on 12-4-1994 and the case Award was announced on 31-8-1996 wherein awarded rates were fixed by the Collector as Rs,4440.40 per kanal on the basis of "Osat Yaksala" based on sales through mutations executed in village Shala prior to the date of issuance of notification under section 4 ibid. This compensation cannot be termed as correct and actual value of the acquired land for the reasons to be followed.
7. On behalf of the landowners one Abdul Aziz appeared as P.W.5 being their attorney who deposed that the acquired land is located on Indus Highway Dera-Multan road and is nearer to Dera Industrial Estate, Gomal University and also two Sugar Mills have been established near to it. He demanded Rs,3,00,000 as per kanal compensation for the acquired land. Worth consideration evidence which can at least be considered for ascertaining the correct market value of the acquired land has come from P.W.1 Muhammad Jan Patwari Halqa Mauza Shala who has produced one year average for the period commencing from 1-9-1995 to 30-9-1996 which is based on sales through mutations executed in village Shala. This document is Exh.P.W.1/2.
According to this document per kanal value of land sold in village Shala is Rs,8016 while market value is Rs,1,60,000 per kanal. In this document total 17 mutations have been shown executed during the period w. e. f. 15-10-1995 to 25-6-1996.
8. Though the case was once remanded by this court to the learned trial Court with the direction to appoint a local commission for local investigation qua the potential value of the acquired land and its location, with the site selected for establishing Industrial Estate by the Sarhad Development Authority, be also ascertained but for reason best known to the parties neither location of the acquired land vis-a-vis the site of Industrial Estate was ascertained nor any local commission for ascertaining the potentiality of the acquired land was appointed and only statements of few witnesses were recorded after remand whereafter the case posted for final arguments.
9. Faced with the above like situation, the only document which can throw some light on the core issue of the case i.e,, to ascertain. The actual market value of the acquired land, is Exh:P.W.1./2, a one year average, which though is not the only mode for ascertaining the actual market value of an acquired land as has been held umpteenth limes by the Hon'ble Supreme Court of Pakistan but when there is no other material available on the record in spite of chances given to the parties for ascertaining the correct market value of the acquired land then in such like situation recourse to one year average becomes inevitable, therefore,. This court is constrained to look upon Exh.P.W.1/2 for ascertaining the correct market value of the acquired land.
10. According to Exh.P.W.1/2 per kanal value of land sold in village Shala, where the acquired land is situated, has been worked out as Rs,8016 while market value has been given as Rs,1,60,000 per kanal. But the market value assessed as Rs,1,60,000 per kanal is not based on any material and mere verbal opinion of Patwari Halqa is of no legal worth, therefore, such assessment cannot be accepted as correct market value of the acquired land. Likewise the average price of one kanal land as Rs,8016 given in Exh.P.W.1/2 too is not of any worth as in the said 'Osat' mutations executed from 15-10-1995 have been included which mutations should not have been included in one year average or considered for ascertaining the actual market value of the acquired land for the reason that some of them have been executed much prior to the announcement of case Award dated 3- 8-1996 which was delayed for no legal justification and this delay should not cause harm to the lawful interests of the landowners.
11. In this case, as mentioned earlier, notification under section 4 was published on 8-4-1993 while the Award was announced on 3-8-1996, after a period of 3 years and 4 months, and during this period prices of real estates touched a new hights. Any increase in the price of real estates is always considered as potential value of a land which must be considered while determining fair compensation of an acquired land. In Exh.P.W.1/2, there is visible upward trend in the value of the lands sold in Mauza Shala, therefore, this upward trend cannot be ignored and must be given weight when one is about to determine correct market value of the acquired land. But the remarkable upward trend in the price of the lands sold in document Exh.P.W.1/2 starts from 20-3- 1996 and ends on 25-6-1996 which is a period before the issuance of the case Award. Therefore, the mutations executed prior to 20-3-1996 ought to be excluded from the one year average given in Exh.P.W.1/2 in order to reach to a just, fair and proper conclusion w ascertain correct market price 01 the acquired land. Therefore, mutation at S.Nos.1 to 14 in the Exh.P.W.1/2 are excluded from the one year average and rest of the three mutations bearing Mutations Nos.381, 387 and 388 which have also been exhibited by the Patwari Halqa as Exh. P. W 1/4 , Exh. P. W .1/5 and Exh. P. W .3/1 respectively are made a base for ascertaining actual market value of the acquired land. The average price of the above three mutations comes as Rs,75,384 per kanal. This exercise is done by the court keeping in view the fact that there is no other worth reliance evidence in the case which could safely be considered to determine the fair market value of the acquired land and further that the reference petition was filed on 23-12-1996 and is pending since then and if the case is once again remanded to the trial Court for ascertaining the fair market value then it will inject a new life of about one decade in the present case.
12. Apart from the above, DW-1 who is Patwari CRBC has admitted that the acquired 'land is situated at the extreme edge of Indus Highway and Gomal University. This location of the acquired land speaks for its potentiality which should also be taken into account while determining correct market value of the acquired land.
13. Conclusion of the above discussion is that neither the compensation amount of the acquired land as fixed through the case Award is correct one nor the compensation enhanced by the Referee Court can ever be termed as fair value thereof. Similarly mere bald statement of P.W.5, attorney of the appellants, for his demand of Rs,3,00,000 per kanal value of the acquired land cannot be accepted. Likewise fixation of market value of the acquired land given in Exh.P.W.1/2 as Rs,1,60,000 per kanal given by the Patwari Halqa cannot be accepted being based on no foundation. However, this court, by taking into account all the relevant factors of the instant case has come to a conclusion that Rs,75,000 per kanal will be a fair market price of the acquired land which value has been worked out from three mutations embodied in Exh:P.W.1/2 being nearest to the date of announcement of the case Award as discussed in Para No,11 of the judgment and also keeping in view the location of the acquired land, i.e, potential value, upward trend in the prices of the real estates, devaluation of the national currency and delay caused in issuing the case Award.
Therefore, on acceptance of the appeal of the landowners compensation of the acquired land is enhanced from Rs,8000 per kanal to Rs,75,000 per kanal alongwith 15% compulsory charges and 6% simple interest from the date of possession of land till payment of the amount.
14. For the aforesaid reasons, appeal of the WAPDA bearing No,59 of 2010 being devoid of any merit is dismissed.