1. ' SAJJAD ALI SHAH, J.---Through this appeal under section 54 of the Land Acquisition Act (hereinafter referred to as the "said Act") the appellant has challenged the judgment dated 14-11- 2003 of the Referee Court/1st Additional District Judge Badin in Land Acquisition Suit No,1/2003 whereby the Referee Court maintained the rate of compensation though granted additional compensation as the rate of 15% per annum under section 28(A) of the 'Said Act' from the date of taking over the possession till payment.
2. ' The facts for the purposes of deciding this appeal as evident from the record are that a commercial plot at Survey No,36/11, situated near Shuddo, village Hayat Khaskhely Deh Gad Taluka Tando Bago, District Badin admeasuring 15750 sq. Ft. With constructed and semi constructed shops owned by the appellant was acquired for public purpose viz. Construction of Mirpur Khas Surface Drainage System by publishing Notification under section 4 of the 'said Act' in Sindh Government Gazette on 4-12-1991. The possession of the land acquired, was taken over on 4-1-1992. Thereafter, Notification under section 6 of the 'said Act' was published on 8-8-1994. The cost of construction was assessed and paid to the father of the appellant on 18-8-1993 as the appellant by that time was a minor. The award was passed on 2-6-1998 and the appellant was granted compensation at the rate of Rs,10 per sq. Ft., along with 15% urgency charge and 6% simple interest from the date of taking over the possession. The appellant, thereafter, on 9th June 1998 moved an application under section 18 of the said Act and consequently the matter was referred to the Referee Judge for determination of fair market value and other benefits. The Referee Judge, after framing issues and recording evidence, maintained the rate of compensation awarded by the Land Acquisition Officer, however awarded additional compensation at the rate of 15% per annum under section 28-A of the said Act from the date of taking over of possession till payment or deposit of the amount in Court.
3. ' Mr. Ghulam Rasool Qureshi, learned counsel for the appellant, has contended that though the Referee Judge has framed as many as eleven issues but the dispute between the parties is fully covered by issues Nos.8 & 9 whereas the rest of the issues are redundant and even were not decided/pressed before the Referee Judge. The only issue which required determination appears to be issue No,8 worded in the judgment, impugned, in the following terms:-- "Whether the compensation awarded is not adequate, if yes, what should be the fair market value of the acquired plot?"
4. ' Mr. Ghulam Rasool Qureshi, learned counsel for the appellant, has raised the following points:--
(a) No relief under sections 23(2), 28(A) and 34 of the 'said Act' was granted on the cost of construction which is contrary to the view taken by the honourable Supreme Court in the case of Government of Sindh v. Syed Shahmir Ali Jafri 1996 SCMR 1316 by holding that the thing attached to the earth or permanently fastened thereto fell within the definition of 'land' as defined in section 3(a) of the 'said Act'.
(b) Since the cost of construction was paid to the father of the appellant instead of depositing in Court as required under section 31(2) of the `said Act', therefore the respondents are liable to pay the said amount along with mandatory benefits under sections 23(2), 28(a) and 34 of the 'said Act' to the appellant;
(c) Notification under section 4 of the 'said Act' was published on 4-12-1991 possession was taken over on 4-1-1992 award was passed on 2-6-1998 determining and awarding the value of the land at the rate of Rs,10 per sq. Ft., and such determination is without considering the potential value of the plot, the delay in passing the award and inflation in price spiral; Reliance was placed on the case of Province of Sindh v. Ramzan and others PLD 2004 SC 512 and Nisar Khan and others v.
5. Collector Land Acquisition, Swabi PLD 2002 SC 25.
(d) The solatium under section 28(a) of the 'said Act' was granted by the Referee Court from the date of taking over possession whereas it ought to have been granted from the date of issuance of notification under section 4 of the 'said Act'.
6. ' On the other hand, Mr. Muhammad Humayoon, learned counsel appearing for respondent No,1, and Mr. Idrees Naqshbandi, learned counsel appearing for respondent No,2, have supported award by contending that the grant of compensation for the construction to the father of the appellant in the year, 1993 was neither denied nor was a term of reference, even no evidence whatsoever has been placed on record challenging the payment of compensation on account of construction. On the contrary, the appellant has acknowledged the receipt of compensation for construction, therefore the appellant cannot raise this issue in appeal. As to evidence in support of costs of land it was contended that the same is based on hearsay and therefore cannot be considered. Lastly, it was contended that no one has been examined in support of Exh.39 which even otherwise stands cancelled as evident from the evidence of the Executive Engineer at Exh.46 and therefore it was prayed that the appeal be dismissed.
7. ' I have heard the learned counsel for the respective parties and have gone through the record as well as the case-law, cited at the bar.
8. ' Taking up the first contention of the learned counsel for the appellant comprised in point (a) and
(b) as to unauthorized payment of cost of construction and non-payment of mandatory solatium thereon, it appears that the Land Acquisition Officer, after issuance of Notification dated 4-12-1991 under section 4 of the said Act took over the physical possession of the acquired property on 4-1- 1992 and in the first phase after ascertainment the cost of construction paid in a sum of Rs,62,392, 28 to the father of the appellant as compensation in respect of construction. The record reflects that the Award of compensation regarding cost of construction was never questioned challenged till the Award dated 2-6-1998 granting compensation for the land was announced. Even the claim of the appellant as reproduced in the Award only pertains to cost of land and therefore the Award is totally silent regarding the cost of construction as it was paid to the appellant five years earlier than the pronouncement of award. A perusal of reference as well as testimony of appellant reflects that not a single word was said about the inadequacy of compensation or its unauthorized payment to appellant's father. The appellant has, further, not produced any documentary evidence to show that the grant of compensation regarding cost of construction was at a lower side nor it was the claim of appellant before the Referee Court that mandatory solatium on the cost of construction was not paid. A perusal of record further reflects that the grant of compensation on this count was not even challenged before the Referee Judge nor any issue to that effect was proposed, such view finds support from the sole issue proposed by the appellant before the Referee Judge, to the following effect:-- ' Whether the compensation awarded is not adequate? If yes, what should the fair market value of the acquired property?
9. ' In fact, there is nothing on record to even assess the submissions of the learned counsel on this count. The appellant was examined by the referee/appellate Court but he did not say a word regarding inadequacy of compensation regarding construction nor he denied its receipt. The plea not only appears to be an after-thought but extraneous to the Award and cannot be allowed to be raised in appeal for the first time and that too without any material to substantiate the same, even otherwise since there is no break up available to counter check as whether solatium was included in the cost of construction or not, therefore, the claim on this count is rejected.
10. As to the adequacy of compensation, pleaded at Point (c) it appears that the following documentary evidence was available before the Land C Acquisition Officer for the assessment and determination of fair market value of the acquired land:--
(a) Exh.36, letter from Mukhtiarkar Tandobago dated 1-2-1992, addressed to the Land Acquisition Officer, stating therein that according to the report of Tapedar of the beat commercial plot at village Hayat Khaskheli. Pakka Road, Sindh is Rs,10 to Rs,50 per sq. Ft.
(b) Certificate from Mukhtiarkar Tandobago dated 6-1-1993 confirming the ownership of 15,750 sq.
11. Ft of land with two Pakka as well as 6 under construction shops in favour of appellant with the addition that per report of Tapedar of the beat its value is Rs,60 per sq. Ft.
(c) Exh.42 Registered Sale dated 21-9-1993, in respect of 2 shops situated at Plot No,6 and 7, Ali Cooperative Housing Society at Deh 317, Tappo Jhuddo, Taluka Degree, Mirpur Khas, admeasuring 99.5 sq. Yards at lump sum amount of Rs,3,15,000.
(d) Exh. 43, registered Sale-Deed 19-3-1996, in respect of shop on plot No,32 at village Hayat Khaskheli, admeasuring 520 sq. Ft. At lump sum price of Rs,1,00,000.
(e) Exh.39, joint inspection report dated 3-3-1996 of Land Acquisition Officer Degree Assistant Executive Engineer Irrigation, Sub-Division and Assistant Commissioner. Degree, the crux whereof 'appears to be that since Mukhtiarkar, Tandobago has issued certificate, Exh.37, giving the valuation of land as Rs,60 per sq. Ft., therefore, they have no objection for grant of compensation at the rate of Rs,60 per sq. Ft.
12. ' The record reflects that one Noor Ahmed Clerk (Exh.32) on behalf of Land Acquisition Officer was examined by the counsel for the appellant who produced all the documentary evidence available on record. Therefore, the appellant examined himself as Exh.44 and lastly one Muhammad Shoban Executive Engineer was examined on behalf of respondent- WAPDA.
13. ' A perusal of section 28-A of the said Act reveals that the fixation of market value of the land acquired should be the price prevailing on the date of Notification under section 4 of the said Act which, admittedly, was issued on 4-12-1991, therefore the sale-deeds Exh.42 dated 21-9-1993 and Exh.43 dated 19-3-1996 cannot be taken into consideration, even otherwise sale-deed Exh.42 pertains to shop situated in Deh 317, Tappo Jhuddo, Taluka Degree, Mirpurkhas whereas the land acquired was situated in village Hayat Khaskheli Deh Gad Taluka Tando Bago District Badin. In addition none of the deeds specifies value of the land. It is also strange that the award does not reflect the existence of these deeds nor the applicant produced the same before LAO but surprisingly got the same produced from the official witnesses without showing the basis as to who had brought it on record. After exclusion of Exh.42 and 43 it leaves Exh.36-37 and Exh.39, Per Exh.36 Mukhtiarkar Tando Bago while relying on the report of Tapedar of the Beat has evaluated the commercial ranging from Rs,10 to Rs,50 per Sq. Ft. Likewise, in Exh.37 Mukhtiarkar Tando Bago has again given his opinion relying upon the report of Tapedar of the Beat stating that the land as well as construction thereon would be Rs,60 per sq. Ft, whereas Exh. 39 is a report of Joint Inspection Committee constituted by Project Director LBOD Mirpurkhas carried out by LAO Digri and others in the year 1996, which recommended the payment in accordance with Exh.37 i.e, Rs,60 per square feet without application of their mind and or independent enquiry.
14. ' A scrutiny of the entire documentary evidence on the basis whereof the cost of the land could be ascertained i.e, Exh. 36, 37 and 39 reveals that the same is based on hearsay, it appears that Exh.36 viz. Letter of Mukhtiarkar is not based on his personal knowledge and has given valuation of the land from Rs,10 to Rs,50 per sq. Ft. On the basis of report from Tapedar. Likewise certificate issued by Mukhtiarkar, Tandobago Exh.37, reflecting price of land with construction as Rs,60 per sq. Ft. Is based on the report provided by Tapedar of the beat and in the same manner Exh.39, joint inspection report carried out by the Land Acquisition Officer, Assistant Executive Engineer, Irrigation, Assistant Commissioner, Degree does not give any independent valuation of land but is based on the certificate issued by Mukhtiarkar which itself is based on the information provided by Tapedar of the beat. It is also strange to note that the witness of the respondent No,1 DDO (Rev) viz Noor Ahmed was examined by the counsel of the appellant without questioning the documents or even suggesting that the same does not give the actual value of the land. In the same manner Muhammad Shahban, Executive Engineer who was examined as Ex. 46, no suggestion was made to this witness regarding the cost of land. No doubt while assessing compensation, potential value of the land has to be taken into consideration as well as the inflationary trend, however in the instant case the appellant has neither produced any documentary evidence in support of his claim to the extent of Rs,200 per sq. Feet nor was able to dislodge the value of the land as assessed / determined by the Land Acquisition Officer, entitling the applicant to any increase. The issue is answered accordingly.
15. ' As to non-payment of solatium under section 28-A of the said Act from the date of issuance of Notification under section 4 of the said Act, a bare reading of section 28-A, of the said Act, envisages fixation of compensation in respect of land. Acquired on the basis of market value as prevailing on the date of notification under section 4 and payment of additional amount 15% per annum on the compensation so fixed from the date of notification under section 4 to the date of payment of compensation.
16. ' In view of such uncontroverted position, the judgment of the Referee Court is modified to an extent that additional compensation under section 28-A at the rate of Rs,15 per annum shall be paid from the date of issuance of Notification till the payment of compensation of course after the decision of amount already paid. With this modification, the appeal stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.