' HAIDER ALI KHAN, J.---Through this single judgment we intend to decide the instant appeal as well as the connected R.F.A No, 115-P/2004 as common questions of law and facts are involved in both these appeals arising from the judgments rendered on 05.6.2004 by the learned Senior Civil Judge/A'ala Illaqa Qazi, Swat in references Nos. 3/4 & 4/4 of 2002 filed by the appellants under Land Acquisition Act, 1894.
2. Precise and relevant facts of the cases are that land measuring 42-Kanals and 09-Marlas owned by appellants in both the appeals (appellants henceforth) was acquired by the Land Acquisition Collector/ D.R.O, Swat for construction of 25 bed hospital and Model School for Industrial Workers.
Award in this regard was passed vide order No, 11524/AG-II/VII/42 dated 29.12.1999. Being dissatisfied with the amount of compensation, the appellants preferred their respective references under Section 18 of the Land Acquisition Act, 1894, which were referred to the learned Senior Civil Judge/A'ala Illaqa Qazi, Swat for disposal. The respondents denied the claim of the appellants by submitting their written replies whereafter necessary issues were framed and after recording pro and contra evidence, both the references were dismissed vide separate judgments dated 05.6.2004. Being still discontent, the appellants have preferred both these appeals which are being disposed of through this single judgment.
3. Arguments heard and record perused.
4. Perusal of the record would reveal that the learned trial Court has rejected the plea of the appellants mainly on the grounds firstly; the Mutations produced by the appellants for determining the market value of the acquired land do not fall within one year average prior to the notification i.e, within the period from 02.4.1998 to 02.4.1999, besides the same are unregistered deeds and, as such, were not considered in view of the dictum laid down in the judgment of the apex Court 1992 SCM R 2342. Secondly; the valuation certificate (Ex.PW-3/10) issued by Tehsildar Babuzai and considered by the Deputy Commissioner was not considered worth reliance as the certificate neither bears the name of the concerned Tehsildar nor the date of its preparation nor he appeared before the Court to explain the rules according to which he determined the value of the acquired land. Thirdly; the acquired land is surrounded by ravens without any approach road and above all the same, being a desert, is the abode of pigeons that is why it is called "Kaotaro Maira", therefore, the value fixed by the Acquisition Collector is more that the market value thereof, hence, the petitions for enhancement in compensation moved by the appellants were not considered.
5. Record shows that while determining the cost of land, the Land Acquisition Collector considered One Year Average (Ausat Yksala) prepared by the Patwari Halqa. His observations in this regard mentioned in the award are as under:-- "In order to determine the cost of land, the Tehsildar Babuzai had worked out per Kanal rate on the basis of "Ausat Yaksala" of the lands situated in the vicinity of the land under acquisition and submitted through sub-Divisional Collector/Assistant Commissioner, Swat vide letter No, 6603 dated 24.3.1999 as under:-- a). Ausat Yaksala per Kanal of the land.......... Rs, 1,46,143/80."
' The "Ausat Yaksala "/one year average furnished by Patwari of the concerned revenue circle is available on the record of Reference No, 4/4 of 2000 as Ex.PW-3/4. A bare reading of, this report shows that eight mutations have been mentioned therein out of which three mutation pertain to the year 1997 whereas the remaining three mutations belong to 1998. The trial Court has rejected the mutations produced by the appellants in the, light of judgment of the apex Court referred to above on the ground that the same have not been executed within the period from 02.4.1998 to 02.4.1999. Astonishingly, the learned trial Court took no notice of the fact that three mutations mentioned in the Ausat Yaksala (Ex.PW-3/4) pertain to the year 1997 and do not fall within the above mentioned bucket period but the same report was given credence contrary to the dictum laid down in the judgment of the apex Court whereupon the learned trial Court based his findings.
In other words, the mutations produced by the appellants in support of their stances were discredited in light of the judgment supra but the Ausat Yaksala prepared by the respondents based on the mutation of similar nature was accepted, hence, findings of the learned trial Court in this regard, being discriminatory and unfair, are not legally sustainable.
6. Learned counsel for the appellants also raised the objection that the Land Acquisition Collector did not award the compensation in light of the valuation certificate furnished by Tehsildar Babuzai.
The valuation certificate referred to by the learned counsel is available on the record as Ex.PW-3/10.
It would be appropriate to reproduce herein below the contents of the valuation certificate for ready reference.
"The attached Yaksala has been prepared by the Patwari Halqa in the light of Mutations from the Revenue Record. As regards the value of the lands, there is great difference in its market value. The market value of the land under acquisition as Rs,100/130/-. Therefore, the land mentioned Khasra Nos. As detail below its value according to the present market value is Rs:70/75/- per sqr.Foot".
' Although, the learned trial Court has not considered the above Valuation Certificate as worth credence and the reasons mentioned in this regard apparently seem to be genuine but on the other hand it is also an admitted fact that the same certificate has been produced from official custody by Muhammad Ismail (PW-3). Who is an official in the office of DOR. Learned counsel for the appellants produced a copy of letter bearing Endst: No, 2943/AG-II/VII/42 dated 02.4.199(sic) of the Deputy Commissioner Swat addressed to the Secretary, NWFP Workers Welfare Board, Peshawar wherein the Valuation Certificate of Tehsildar Babozai has been mentioned and duly endorsed. It would be appropriate to reproduce Para-2 of the above said letter for the sake of convenience.
"2. Yaksala and prevailing market rates, of the land proposed to be acquired for the Scheme furnished by the concerned Revenue Officer is as under:- a). Yaksala rate of the land Rs,26/86 per sqr. Foot. b). Prevailing market rate of the land Rs, 70 to 75/- per sqr. Foot.
' It is requested that this office may please be informed as to whether your department would like to acquire the land through private negotiation or under the regular process of the Land Acquisition Act, 1894 to proceed further in the matter".
' The above letter is properly signed by the Deputy Commissioner/Collector, Swat, and bears seal and signature of the D.O.R besides, it has duly been attested by the Notary Public. Therefore, it is held that the Valuation Certificate was part and parcel of the acquisition process and the authenticity thereof cannot be doubted. Astonishingly, copy of the above referred letter is not available on record of either of the cases meaning thereby that the same was wilfully kept concealed and was not produced before the trial Court for the reasons best known to the respondents. It is manifest from the mentioned letter that the Valuation Certificate was duly considered by the Deputy Commissioner and it was admitted by him that the prevailing rate of the acquired land was Rs,70 to 75 per square foot besides, this rate was recommended to Secretary, Workers Welfare Board for obtaining his sanction but the prevailing rate of the acquired land was kept aside at all and instead price of the acquired land was based on Awsat Yaksala, the doubtful position whereof has already been discussed in the preceding para. The trial Court should have considered, for arriving at just and fair conclusion, the same Valuation Certificate in light of the mutations i.e, Ex.PW-4/1, 4/2, 5/1, and 5/2 (Case No, 3/4) produced by the appellants in support of their stance but the trial Court failed to apply its judicious mind in this regard.
7. In view of the above discussion, the compensation awarded to the appellants was not in accordance with the market value of the land acquired at the relevant time. Therefore, both the appeals are partially allowed, the impugned judgments in both the references are set aside and the respondents are directed to pay compensation to the appellants according to the Valuation Certificate (Ex.PW-3/10) furnished by Tehsildar Babozai.