' MALIK HAMID SAEED, J.---Muhammad Saleem Khan and others, appellants, have filed this appeal against the judgment, dated 18-7-1994 of the learned District Judge, Buner Camp Court at Mardan whereby the objection petition of the appellants against Award No, 187, dated 27-3-1991 was accepted to the extent that the rate of compensation for the acquired 'Shah Nehri' land was fixed at Rs,2,924 per Marla i,e, Rs,58,480 per Kanal as against Rs,50,000 per Kanal fixed by the Collector in the impugned award. The appellants pray for enhancement of the rate of compensation due to the potential nature of the property. The Government of N.-W.F.P. And the acquiring Department i,e, WAPDA have also filed R.F.A. No,97 of 1994 against the said impugned judgment of the learned Referee Judge and has prayed for setting aside the same and restoration of the Award, dated 27- 3-1991.
2. We are also having before us the following appeals. Which arise out of Award No, l88, dated 9-4- 1991 whereby lands lying adjacent to the lands acquired through Award No,187 were also acquired for WAPDA Scarp, Mardan and the learned Referee Judge while deciding the objection petitions of the landowners/appellants placed reliance on Award No,187 for the purpose of determining the market value and average sale price of the lands:--
(1) R.F.A. No,65 of 1994 Faiz Muhammad Khan and others v. Government of N.-W.F.P.
(2) R.F.A. No,68 of 1994 Salim Akhtar and others v. Government of N.-W.F.P. And others.
(3) R.F.A. No,67 of 1994 Haji Wali Muhammad Khan v. Government of N.-W.F.P. And others.
' Similarly, the Government or N.W.F.P WAPDA have also challenged the impugned judgments passed by the learned refree Judge on the objection petitions filed against Award No,188, dated 9- 4-1991. The same are:--
(1) R.F.A. No,80 of 1994 Government of N.-W.F.P. v. Faiz Muhammad Khan.
(2) R.F.A. No,98 of 1994 Government of N.-W.F.P. Etc. v. Haji Wali Muhammad etc.
(3) R.F.A. No,99 of 1994 Government of N.-W.F.P. Etc. v. Salim Akhtar etc. ' The learned Referee Judge has based judgments in the abovementioned appeals on the basis of his judgments in reference to Award No,187, therefore, we propose to dispose of all the appeals through this single judgment in R.F.A. No,94 of 1994.
3. Brief facts of the case are that the Provincial Government acquired land measuring 68 Kanals and 6 Marlas in the revenue estate of Village Surkh Dheri, Tehsil Mardan as well as land measuring 113 Kanals, 14 Marlas in the revenue estate of Village Khat, Tehsil Mardan, on behalf of WAPDA Scarp, Mardan for the remodeling of Murdara Drain under Salinity Control and Reclamation Programed of WAPDA, Mardan. In response to the notices issued against the interested persons to file their claims under sections 9 and 10 of the Land Acquisition Act, 1894, the appellants appeared before the Collector for the purpose and claimed compensation at Rs,10,000 per Marla. They also produced some documentary proof in this regard. From the respondents' side, the Extra-Assistant Settlement Officer, Mardan vide Letter No,852/EASO, dated 6-1-1990 sent 'Ausat Yaksala' based on sale transactions taken place during the period 18-10-1988 to 18-10-1989 with regard to Shah Nehri land preceding one year before the issuance of Notification under section 4 of the Land Acquisition Act.
The Collector, however, without any reason or making any further inquiry did not accept the rates mentioned in the said 'Ausat Yaksala' and based his award on the mutations entered between the landowners of Village Surkh Dheri with the Federal Government. Whereby through private negotiations, certain lands were acquired for Mechanical Workshop of Mardan Scarp, WAPDA on the basis of a sale deed, at the rate of Rs,50,000 per Kanal. The Collector, therefore, fixed the rate for 'Shah Nehri' kind of land at Rs,50,000 per Kanal and Rs,12,500 for other kinds of lands per Kanal.
4. In Award No,188, the Collector also fixed the rate of compensation for 'Shah Nehri' land at Rs,50,000 per Kanal for the reason that according to the report of Patwari Halqa and Naib-Teshildar Settlement, Mardan, dated - 3-4-1991, not a single mutation was attested in Village Khat during the period 18-10-1988 to 18-10-1989 and keeping in view the fact that in Award No,187 the rate of compensation with respect to lands acquired in Village Surkh Dheri was fixed at Rs,50,000 per Kanal and as the lands of Village Khat were lying adjacent to the lands of village Surkh Dheri, therefore, it was deemed reasonable to fix Rs,50,000 per Kanal for Shah Nehri land acquired in the revenue estate of Village Khat.
5. The landowners feeling dissatisfied with the impugned Awards, filed objections references which were referred to the learned District Judge for disposal. The learned District Judge entrusted the same to the learned Senior Civil Judge, Mardan for decision but later on under the directions of this Court, the same were again transferred to the Court of District Judge for disposal. Before the learned District Judge/Referee Judge the appellants and the respondents both contested their claims through production of oral as well as documentary proof. The learned Referee Judge under the main issues framed in the case with regard to determination of reasonable compensation for the lands according to its market value came to the conclusion that major portion of the suit land is first class 'Shah Nehri' land and could be utilized for the purpose of 'Abadi' also. He, therefore, observed that the Collector has ignored the 'Ausat Yaksala', Exh. R.W.1/9 that it contained high rates which was no ground at all as there was no allegation or proof that the said 'Ausat Yaksala' contained fake transactions. The learned Referee Judge, however, concluded that in Exh.R.W.1/9 the mutation entered on the basis of private negotiations between the landowners and ate Federal Government was not included in it. The said mutation was made part of Exh. R.W.1/9 the sale average came to Rs,2,924 per Marla for 'Shah Nehri' land instead of Rs,3,634/07 and the impugned awards were modified accordingly. Hence the present appeals.
6. We have heard the learned counsel for the parties and have also perused the record of the case.
7. Admittedly, the disputed land is situated on Mardan-Nowshera Road near Sheikh Maltoon Township. It is also not disputed that major portion of the acquired land is 'Shah Nehri'. The learned Referee Judge has also held that Exh.R.W.1/9 (one year average) is the relevant 'Ausat Yaksala' which contains transactions effected 12 months preceding the acquisition notification under section 4 of the Land Acquisition Act and that it was wrongly ignored by the Collector. The learned Referee Judge, however, included those mutations in the said 'Ausat Yaksala', Exh. R.W.1/9, vide which the Federal Government had purchased lands from the landowners of Village Surkh Dheri through private negotiations and then determined the average sale price per Marla.
8. The record of the case reveals that Exh.R.W.1/1 was also one year average for the period 8-10- 1988 to 8-10-1989 which contained sale average for mixed kind of lands and the price per Marla was determined as Rs,4,841.88 per Marla. The sale transactions for Shah Nehri lands mentioned in Exh.R.W.1/1 were excluded and a separate sale average of it was chalked-out through 'Ausat Yaksala, Exh.R.W.1/9.
9. The mutation in respect of the land vide which certain lands were transferred to the Federal Government in Village Surkh Dheri through mutually agreed price between the landowners and the Government shows that total area of 109 Kanals was purchased out of which 72 Kanals of land was 'Banjar Qadeem' and only 37 Kanals was Shah Nehri land at a fixed price of Rs,50,000 per Kanal. The said mutation was attested on 10-5-1990 which is beyond one year preceding to the date of notification under section 4 of the Land Acquisition Act and was, therefore, having no proper relevancy to the period which was required to be taken into consideration for the purpose of determining the average sale price of the acquired lands. The learned Referee Judge has, therefore, not properly appreciated' this aspect of the case in light of the evidence adduced by the parties. Exh. R.W.1/9 is one year average prepared by the Extra-Assistant Settlement Officer, Mardan in which transactions of Shah Nehri lands have been mentioned only and there are also no allegation or proof of containing any fake transaction and, therefore, the same was required to be considered for the purpose of awarding proper compensation for the lands acquired in Village Surkh Dheri for the reason that major portion of the property acquired through Award. No,187 was first class Shah Nehri and also fit for the purpose of Abadi. The importance given to the sale transactions vide which the Federal Government purchased certain lands, major portion of which was 'Banjar Qadeem' through private negotiations without properly ascertaining the potential nature and its market value and that too having no relevancy to the period which was required to be considered for determining the average sale price, finds no support from the evidence on record and the Collector as well as the learned Judge both have erred in placing reliance on the same in presence of other documentary proof which clearly justify the award of compensation at the rate of Rs,3,634.07 per Marla. Similarly, as no sale transaction has taken place in Village Khat during the relevant period and as the lands acquired in Village Khat were lying adjacent to the lands in Village Surkh Dheri, therefore, the landowners of Village Khat were also entitled to the same compensation. We are, therefore, of the view that the landowners/appellants before us are entitled to receive compensation for their 'Shah Nehri' land at the rate of Rs,3,634.07 per Marla as worked- out in Exh.R.W.1/9 on the basis of sale transactions effected during the period 8-10-1988 to 8-10- 1989 for 'Shah Nehri' land in Village Surkh Dheri. The rates determined for other kinds of land, however, requires no interference as there is nothing on record to show that such rates are also inadequate.
10. The arguments of the learned counsel for the respondents that the lands in question were acquired for a public purpose and, therefore, the landowners were entitled to compulsory acquisition charges at the rate of 15% and not 25% within the meanings of section 23(2) of the Land Acquisition Act, 1894, is having force for the reason that subsection (3) of section 13 of the WAPDA Act, 1958 also provides that land acquired for the Authority shall be deemed to be an acquisition for a public purpose within the meaning of the Land Acquisition Act, 1894. It is also a fact that the acquisition has been made for a public purpose namely the remodeling of a drain in Mardan Scarp Project and, therefore, though WAPDA is a company but since the land has been acquired for a public purpose, the landowners are entitled to 15% compulsory charges under section 23(2) of the Land Acquisition Act.
11. For the aforesaid reasons, the appeals filed by the landowners/appellants (R.F.A. No,94/94, R.F.A No,65 of 1994, R.F.A. No,68 of 1994 and R.F.A. No,67 of 1994) are accepted to the extent that the appellants are held entitled to receive compensation for their Shah Nehri land at the rate of Rs,3,634.07 per Marla with 15% compulsory acquisition charges and 6% simple interest from the date of taking over the possession till the payment of compensation. Similarly, the appeals filed by the Government of N.-W.F.P./WAPDA (R. F . A . No .97/94 , R. F . A .No . 80/94 , R.F.A. No,98/94 and R.F.A.
No,99/94) are also accepted to the extent that the rate of compulsory acquisition charges is fixed at 15% under section 23(2) of the Land Acquisition Act instead of 25%. No orders. As to costs.