' I propose to dispose of R.F.As. Nos.10 and 11 of 1996 by this single judgment as both have arisen from one and the same decree and judgment of the learned Additional District Judge, Mardan.
2. WAPDA Scarp Mardan was in the need of acquiring certain lands in village Umaray for remodelling Dargai Drain. The Additional Deputy Commissioner, Peshawar issued a Notification under section 4 of the Land Acquisition Act for acquisition of 21 Kanals and 18 Marlas land situated in village Umaray District Charsadda on 6-7-1986. Since an urgency was involved, therefore, Notification under section 17 of the Land Acquisition Act was issued on 7-1-1987 and the land was taken into possession in accordance with law. The Land Acquisition Collector issued notices under sections 9 and 10 of the Act ibid against all the interested persons to file any claim before the Land Acquisition Collector on 15--7-1987. The appellants in F.R.A. Nos. 11 of 1996 expressed their satisfaction over the measurement of land in question, however, they demanded compensation at the rate of Rs.200,000 (two lacs) per Jarib with compulsory acquisition charges and interest as admissible under the law.
3. The Land Acquisition Collector with a view to ascertain the average price of the preceding year than the Notification under section 4 of the Land Acquisition Act, directed Patwari Halqa to prepare an average of the preceding one year from Notification under section 4, but the Patwari Halqa in a statement, dated 10-5-1987 signed by Girdawar Circle and Tehsildar Charsadda on 11-5-1987, it was reported that not a single mutation was attested in the preceding year i.e, 6-7-1985 to 6-7- 1986 in village Umaray. In these circumstances, the Land Acquisition Collector, Mardan Scarp on taking into consideration the rate of compensation awarded through Award No, 147 announced on 30-9-1989 in respect of Land acquired in village Mufti Pura fixed the rate of compensation for the Shah Nehri land as Rs.4,120 per Kanal and Rs.1,030 per Kanal for Ghair Mumkin land. However, 15% compulsory acquisition charges under sections 23(2) and 6 interest under section 34 with effect from 6-7-1986 was awarded through disputed Award No, 155 on 30-1-1988.
4. The affectee landowners feeling dissatisfied with the rate of compensation fixed in the Award
(ibid) preferred an objection petition for making a reference to the Court for determination of fair rate of compensation. The objection petition was referred to Court and the learned Senior Civil Judge framed the following issues:--
1. Whether the petitioners have got a cause of action ?
2. Whether the market value as assessed by the Land Acquisition Collector is wrong and illegal?
3. What is the market value of the suit land?
4. Relief.
5. Both the parties adduced their evidence as they wished to be examined in support of their respective contentions. At the conclusion of the trial the Additional District Judge after taking into consideration the rate of compensation fixed in Award No, 154 copy Exh.R.W.1/10 respecting the land situated in Mauza Gul Abad District Charsadda an adjacent village as Rs.7,226.60 per Kanal, also allowed the same price for the land acquired through the disputed Award. The acquiring Department as well as the affectee landowners both are aggrieved from the rate fixed by the referee Court vide its impugned judgment and decree, have filed the instant two cross-appeals.
6. I have heard the learned counsel for the parties at length and perused the record with their valuable assistance. It is undisputed fact that village Umaray, Gul Abad, Mufti Pura and Khan Mai of District Charsadda are situated adjacent to each other. The objector claimed that the market rate of the acquired land is not less than Rs.50,000 per Kanal and in support of their contention they produced Exh.O.W.1/2 showing the average rate as Rs.38,800 per Kanal in village Umaray. This document refers to two mutations bearing No, 493 attested on 3-4-1985 whereby a total land measuring 3 Kanals and 10 Marlas was sold on the total sale consideration of Rs.91,000. In another mutation bearing No, 496 attested on 11-11-1986 whereby the land measuring 4 Kanals was sold at the rate of Rs.200,000 (two lacs), and thus, the average per Kanal of the land was drawn as Rs.38,800. Vide document Exh.OW1/3 one year average of the sale mutations attested from 2-4- 1986 to 2-7-1987 containing four mutations in village Umaray whereby the average per Kanal was drawn as Rs.27,387.38. Vide document Exh.OWl/4 one year average from 30-1-1987 to 30-1-1988, (the date on which disputed award was announced) in village Umaray continuing 5 sale mutations were entered and attested on different dates from 7-3-1987 to 13-10-1987 showing an average of Rs.24,237.91. The lands in adjacent villages of Gul Abad were also shown to be sold away through different mutations. The objectors produced one year average Exh.OW1/5 from 6-7-1985 to 6-7- 1986 respecting Mauza Gul Abad wherein two mutations were entered and the average per Kanal was drawn as Rs.16,666.66, Exh.P.W.1/6 relates to Mauza Gul Abad whereby two mutations attested on 31-12-1986 and 7-7-1987 were considered and an average of Rs.14,753,96 per Kanal was drawn in another one year average of the mutations attested in between 30-1-1987 to 30-11988 in village Gul Abad was exhibited as Exh.P.W.1/7 wherein average per Kanal was drawn as Rs.14,539.39. The objector also produced three different one year average for different periods in respect of land situated in the adjacent village Khanmai District Charsadda. Exh.P.W.1/8 is the one year average pertaining to the period 6-7-1985 to 6-7-1986 wherein these mutations were attested on different dates and an average of Rs.15,619.90 per Kanal was drawn. Exh.P.W.1/9 is the one year average pertaining to the period from 2-4-1986 to 2-4-1987 of village Khanmai District Charsadda showing 4 sale mutations on different dates and the average was drawn Rs.12,019.23 per Kanal. Exh.O.W.1/10 is the one year average pertaining to the period 3-1-1987 to 30-1-1988 of village Khanmai District Charsadda whereby 3 sale mutations on different dates were mentioned and the average was drawn Rs.12033.71.
7. The objector appellants also admitted in the cross-examination one year average per Kanal of Mauza Mufti Pura District Charsadda as Exh.O.W.1/X. In the said one year average 8 different mutations of various dates in between 6-7-1985 to 6-7-1986 are recorded and the average has been shown as Rs.4,120 per Kanal. Exh.P.W.1/X-I, a sale mutation No, 557 attested on 25-9-1986 was exhibited during cross-examination of P.W. I whereby the average of one Kanal of land was drawn as Rs.5,000 Vide Exh.O.W.1/X-2, a land measuring 1 Kanal and 9 Marlas was sold at the rate of Rs.6,000 on 17-11-1987.
8. Learned counsel for the appellant/objectors emphasised on fixation of rates at the one year average of the adjacent Mauzas as there is no evidence to show that the market value of the acquired land is lesser than the lands of the adjacent Mauzas i.e, Gul Abad, Mufti Pura and Khanmai.
9. The appellant/objectors have brought one record one year averages of village Umaray Exh.O.W.1/2 wherein two mutations are mentioned, one year average Exh.O.W.1/3 wherein four mutations including sale mutation No, 496 attested on 11-11-1986 entered in Exh.O.W.1/2 which can be looked. Appellant also produced Exh.O.W .1/4 one year average which include five mutations. All the aforesaid one year average relates to mutations attested in between 6-7-1985 and 30-1-1988.
The sale price of mutations mentioned in the afore deed show an upwards trend in the prices which is a reasonable consideration for determination of fair rate of compensation.
10. The objector also produced three documents one year average of different years pertaining to Mauza Gul Abad as Exhs.O.W.1/5, 1/6 and 1/7. Mauza Gul Abad is admittedly an adjacent Mauza of the acquired land.
' Exh.O.W.1/6 can be excluded from consideration for the single reason that mutations mentioned therein are also recorded in Exh.O.W.1/7. The sale mutations mentioned in Exh.O.W.1/5 and Exh.O.W.1/7 were attested in between 6-7-1987 and 30-1-1988.
11. Objector has also Exhibited .O.W.1/8, O.W.1/9 and 0.W. WO one year averages of different period relating to village Khanmai, an adjacent Mauza. The mutations mentioned therein were entered and attested in between 6-7-1985 and 30-1-1988. Mauza Khanmai is also admitted to be an adjacent Mauza of village Umaray. In the disputed Award the Collector Land Acquisition after taking into consideration the one year average of Mufti Pura fixed the rate as Rs.4,120 per Kanal as no mutation in the preceding year than the Notification under section 4 was attested in village Umaray.
12. Learned Judge Referee Court has taken into consideration the price fixed in the Award Exh.R.W.1/X pertained to village Gul Abad but has altogether ignored the one year average of the adjacent Mauzas namely Gul Abad and Khanmai and also one year average of subsequent period for ascertaining the upwards trend in the market rates of landed property. It is an undisputed fact that Mauza Umaray, Mauza Gul Abad, Mufti Pura and Khan Mai are adjacent to each other. There is nothing on record suggesting any difference in the soil, nature, potentiality and use of the lands in the aforesaid Mauzas. This is also admitted by Lal Badshah Patwari R.W.1, a sole witness of the acquiring department that there was no Eraab (drain) in the lands of the objectors acquired through disputed Award, and thus conceded that the acquired land was suitable for cultivation.
The witness has also showed his ignorance about the market rate of the lands in locality.
13. As stated earlier, no sale mutation was entered in village Umaray during the preceding year than the notification under section 4 of the Land Acquisition Act i.e, 6-7-1985 but thereafter a number of mutations mentioned in Exhs.O.W.1/2, O.W.1/3 and O.W.1/4 were attested and the same are relevant to show the upwards trend of sale prices.
14. This is also a fact that the acquired lands were being used for agriculture purposes only and have been acquired for remodelling of Dargai Drain for public purposes. Land of the same soil and nature were sold through various sale mutations in the adjacent Mauzas of Mufti Pura, Khanmai and Gul Abad in the preceding one year period and even thereafter which could be considered for determination of fair rate of compensation. Thus, for the determination of fair rate the Referee Court was supposed to fix the rate after taking into consideration the various rates of Lands in the villages Mufti Pura, Gul Abad and Khanmai but he ignored altogether the one year average of the preceding year and even subsequently of the adjacent village Gul Abad and Khanmai, but the Referee Judge has only relied upon Award Exh.R.W.1/X respecting adjacent Mauza of Mufti Pura.
15. The one year average Exh.P.W.1/5, (relating to village Mufti Pura, on which basis disputed Award No, 155 was announced) Exhs.O.W.1/2, 1/3, 1/4 of village Umaray, Exhs.O.W.1/5 and 1/7 of village Gul Abad and Exhs.O.W.1/8, 1/9 and 1/10 of village Khanmai are reasonable to be considered for determination of fair rate of compensation. After considering the aforesaid documents, the average rate per Kanal comes to Rs.9,129.
16. Thus, in view of the discussion above, R.F.A. No, 10 of 1996 filed Sy Chairman WAPDA is dismissed and R.F.A. No, 11 of 1996 filed by Mir Alam etc objectors is accepted to the extent of enhancement of rate of compensation to Rs.9,129 per Kanal for the acquired land alongwith 15% compulsory acquisition charges and 8% simple interest as permissible under the law. No order as to costs.